IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 27th April 2020 SUIT NO. NICN/LA/618/2019
BASIL EZIMIGBO … CLAIMANT
POLARIS BANK LTD. … DEFENDANT
1. By notice of preliminary objection dated and filed on 14th January 2020,brought pursuant to Order 4 Rule 4 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and under the inherent jurisdiction of the Honourable Court, the Defendant prayed the Court for an order striking out this suit in limine for being incurably defective and incompetent and for such further order[s] as this Honourable Court may deem fit to make in the circumstances of this case on the following grounds:
a. The thrust of the Claimant’s suit as disclosed in the statement of facts is wrongful dismissal from employment contrary to an employment contract between him and his employer.
b. The Claimant alleged that EIB International Bank Plc was his employer.
c. The Claimant further alleged that Skye Bank Plc subsequently became his employer by some arrangement before he was dismissed by the said Skye Bank Plc.
d. The Defendant is a distinct entity from both EIB International Bank Plc and Skye Bank Plc.
e. By the Claimant’s own showing, he was employed by EIB International Bank Plc and worked for Skye Bank Plc until his dismissal in 2014.
f. The cause of action upon which the Claimant/Respondent’s claims are hinged is termination of contract of employment. There was never a contract of employment between the Claimant and the Defendant.
g. The suit against the Defendant is incompetent for misjoinder of parties. The proper Defendants to sue are EIB International Bank Plc and or Skye Bank Plc.
h. The Defendant is not a successor of Skye Bank Plc. The Defendant did not the [sic] assume liabilities emanating from or connected to employment contracts with Skye Bank Plc or any liability relating to the Claimant and the claims before the Court.
i. The Claimant has disclosed no reasonable cause of action against the Defendant.
2. The preliminary objection is supported with 16 paragraphs affidavit deposed to by Mr. Chizoba Okonkwo, legal practitioner in the Defendant’s Solicitors’ Chambers.Attached to the affidavit are three exhibits, marked as Exhibits TLC 1, TLC 2 and TLC 3. In compliance with the Rules of the Court, the Defendant filed a written address dated 14th January 2020.
In opposition to the application, the Claimant filed a counter affidavit of 6 paragraphs dated 22nd January 2020 deposed to by Mr. Ifeanyi Okonkwo, a legal practitioner in the firm of the Claimant’s Solicitors. Attached to the counter affidavit arethree exhibits marked as Exhibits IO1, IO2 and IO3and a written address dated 21st January 2020. After receipt of the counter affidavit and written address, the Defendant filed a further and better affidavit in support of the preliminary objection deposed to by Mr. Jerry Iyekekpolo, litigation clerk in Defendant’s Solicitors’ Chambers and reply on point of law both dated 31stJanuary 2020.
Arguing the application on 19thFebruary 2020, Mr. O. Omemuo, learned counsel for the Defendant relied on the affidavits in support of the preliminary objection and adopted the written address and reply on point of law as his argument in support of the application and urged the Court to strike out the case. He relied on the case of Idongesit Celestine Ita v. Polaris Bank Plc, Suit no. NICN/UY/37/2018. Mr. M. Obi-Farinde, learned counsel for the Claimant, adopted the counter affidavit together with the attached exhibits and written address andargued the Court to dismiss the application.
3. In the written address filed in support of the application, learned counsel for the Defendant formulated two issues for determination, to wit:
“a. Whether there is a privity of contract between the Claimant/Respondent and the Defendant/Applicant?”
“b. Whether the Claimant has disclosed a reasonable cause of action against the Defendant?
On issue one, counsel submitted that a contract cannot confer rights or impose obligations arising under it on any person except parties to it. He relied on CAP Plc v. Vital Investment Ltd.  6 NWLR [Pt.976] 220 at 264 and UBA Plc & Anor. v. Jagarba  11 NWLR [Pt.1045] 247.He argued that the facts are not in dispute and, assuming without conceding, that there was a contract of employment between the Claimant and the defunct Skye Bank Plc, the Defendant is not a successor of the defunct Skye Bank Plc, but a bridge bank organized and incorporated by the National Deposit Insurance Corporation pursuant to Section 39 of the NDIC Act. He explained that in furtherance of the statutory provision a purchase and assumption agreement was executed between the Defendant and NDIC, Exhibit PBL 1 [sic] and pursuant to clause 2.1 thereof the Defendant assumed certain liabilities excluding any liability emanating from or connected to employmentcontract with the failing Bank. Also, that by clause 8.1it was agreed that any asset not expressly transferred and liability not expressly assumed under the agreement has not been purchased or assumed. He contended that nowhere in Exhibit TLC2 did the Defendant assume any liability arising from employment contracts between Skye Bank Plc and its former employees and for that reason, there is no cause of action against the Defendant on the basis of employment contracts entered into by Skye Bank Plc.
Arguing issue two, he referred to Rinco Construction Company Limited v. Veepee Industries Limited & Anor.  LPELR-2949[SC] and submitted that the averments in the statement of facts do not disclose obligations owed by the Defendant to the Claimant; and in the circumstance, the statement of facts do not disclose any reasonable cause of action against the Defendant and on that basis the suit ought to be struck out.
4. Learned counsel for the Claimant raised one issue for determination, to wit: “Whether the Claimant’s claim is competent and discloses a reasonable cause of action?” He submitted that the Claimant is not a party to Exhibit TLC 2 and therefore not bound by the obligations arising thereunder. He argued that Exhibit TLC 1 being a public document, it is only a certified true copy that ought to be attached to the application. Reliance was placed on Fawehinmi v. IGP  7 NWLR [pt.665] 481 at 525. He contended that in an application of this nature, the Court will consider only the statement of facts. The case of Elabanjo v. Dawodu  15 WNLR [pt.1001] 76 at 136 was cited in support. He referred to paragraphs 3, 4, 7, 21, 22, 23 and 24 of the statement of facts and Exhibits IO1, IO2 and IO3 attached to the counter affidavit and argued that the Claimant has established a relationship with the Defendant. The Court was urged to take cognizance of its own judgment, proceedings and records on the authority of Osafile v. Odi [No.1]  3 NWLR [Pt.137] 130 at 158. It was argued that Exhibits TLC2 and TLC3 show that the assets and liabilities of Skye Bank Plc were transferred to the Defendant which gave rise to Exhibit IO1. Counsel contended that the argument of the Defendant based on Exhibit TLC2 amounts to approbating and reprobating and relied on Nyako v. A.S.H.A.  6 NWLR [Pt.1562] 347 at 392. It was further submitted that even statutes are not permitted to interfere with legal rights properly vested in a person except as clearly stated in the statute. The Claimant’s inalienable right is protected by Section 44 of the 1999 Constitution and Exhibit TLC 2 cannot extinguish it. The Court was urged to dismiss the application with cost.
5. The reply on point of law was largely a rehash of the Defendant’s argument in support of the application. Learned counsel added that the whole essence of Sections 38 to 40 of the NDIC Act and the statutory arrangement envisaged thereunder is to enable an investor to cherry-pick and any liability not assumed under Exhibit TLC2 remained with the liquidator. He submitted that Section 44 of the 1999 Constitution deals with compulsory acquisition of property which is not contemplated in this case. Counsel contended that a contract of employment differs from a loan agreement and the Defendant could purchase a loan contract, and not assume any other liability. He referred to the case of Lewis v. UBA  LPELR-40661[SC] 15.
6. The issue for determination in this application, in my respectful view, is whether the Claimant has disclosed any reasonable cause of action against the Defendant? Before considering the issue, let me say that Order 4 Rule 4 of the Rules of this Court, on which this application is predicated, has no connection whatsoever to the issues raised by the Defendant. It provides that “An originating process shall be signed by the Claimant or Counsel where the claimant sues through a Counsel.” So, I take it that this application is brought under the inherent jurisdiction of the Court.
A cause of action is the aggregate of facts which the law will recognize as giving the Claimant a substantive right to claim judicial relief. It consists of the wrongful act of the Defendant which gives the Claimant a cause of complaint and the consequent damage. It is the fact which would be necessary for the Claimant to prove, if traversed, in order to support his right to judgment. See Cookey v. Fombo  5 SC [Pt.II] 102 at 113 and Iyeke & Ors. v. Petroleum Training Institute & Anor.  7-10 SC 64 at 98. A reasonable cause of action, therefore, is a cause of action which, when only the facts in the statement of facts are considered, has some chance of success. It is the law that for a statement of facts to disclose a reasonable cause of action, it must set out the legal rights of the Claimant and obligations of the Defendant; and then set out facts constituting infraction of those rights in such a way that if there is no proper defence, the Claimant will succeed in the relief he seeks. See Iyeke & Ors. v. Petroleum Training Institute & Anor. [supra] at page 99.
When an objection is raised that the statement of facts does not disclose a reasonable cause of action, it is the statement of facts that has to be examined to ascertain whether or not there is a reasonable cause of action and not the statement of defence or the affidavit in support of the objection. See Cookey v. Fombo [supra] at pages 107-108,Emeka v. Chuba-Ikpeazu & Ors.  15 NWLR [Pt. 1589] 345 at 370and Abatcha v. Sheriff & Anor.  LPELR-40781[CA] 36.Once the statement of facts raises some issues of law or fact calling for determination by the Court, the mere fact that the case is weak and not likely to succeed at trial is not a ground for striking it out. See Iyeke & Ors. v. Petroleum Training Institute & Anor. [supra] at page 99.
7. I have carefully read the statement of facts and, in my respectful view, it raises serious complaints against the Defendant which, if not properly traversed will entitle the Claimant to judgment. The Claimant’s claim is essentially that he was employed by Defendant’s predecessor-bank, Skye Bank Plc, and was wrongfully dismissed by letter dated 30th April 2014 which was served on him on 20th January 2015. The Defendant contends that although it was incorporated and organized by NDIC in consultation with the Central Bank of Nigeria to assume some of the recorded deposit liabilities and other specified liabilities of Skye Bank Plc, it is not a successor of Skye Bank Plc and did not assume liabilities emanating from or connected to employment contracts of Skye Bank Plc. In proof of this fact it tendered the purchase and assumption agreement, Exhibit TLC2. Claimant’s counsel contends that the Claimant is not privy to this agreement which is therefore not binding on him. Whether Exhibit TLC2 is binding on the Claimant or not are not issues for consideration at this stage. The preliminary objection is hinged on non-disclosure of a reasonable cause of action by the Claimant against the Defendant. The Court is not obliged to consider the statement of defence or even the facts and documentary evidence supplied by the Defendant. The Defendant is deemed to accept the facts averred by the Claimant as correct. In Rinco Construction Co. Ltd. v. Veepee Industries Ltd. & Anor.  LPELR-2949[SC] 15, Tobi, J.S.C. [of blessed memory] remarked that:
“In order to discover whether a cause of action is disclosed, the court must limit itself to the plaintiff’s pleadings. No resort whatsoever ought to be had to the statement of defence.”
8. The issues of the Court taking judicial notice of its proceedings and Section 44 of the 1999 Constitution are not relevant to this consideration and are hereby discountenanced. Equally discountenanced is the distinction between employment contract and loan contract. This does not arise in this application. In addition, the issue of privity of contract raised by the Defendant does not arise for consideration in an application of this nature which seeks to strike out the suit in limine for “being incurably defective and incompetent”. A determination whether there is a privity of contract between the Claimant and Defendant cannot be made without hearing evidence.In Oyedele & Ors. v. Ajayi & Ors.  LPELR-23101[CA] 14, Dongban-Mensem, J.C.A., remarked that “It is the law and practice that when a preliminary objection is raised to determine a suit in limine, the main material for consideration is the originating process.”
I have read the decision by my learned brother, Hon. Justice Namtari, of the Uyo Judicial Division in Idongesit Celestine Ita v. Polaris Bank Limited, Suit no. NICN/UY/37/2018 delivered on 18th November 2018 which was decided based on the peculiar facts of that case. The application was brought pursuant to Order 18 Rule 2 of the Rules of this Court and prayed the Court for an order striking out the suit in that Polaris Bank Limited is not the proper party to be sued as Defendant. The issue submitted by the Defendant was whether in the light of the purchase and assumption agreement between the NDIC and Polaris Bank Limited, the applicant was a proper party to the suit? The issue for determination and prayer are different from the issue and prayer in this application. This application is anchored on non-disclosure of reasonable cause of action and privity of contract and was brought pursuant to Order 4 Rule 4 of the Rules of this Court. Although the seventh ground in support of the preliminary objection deals with misjoinder of parties, it was not arguedand is deemed abandoned.Different considerations apply to a challenge of a suit on the basis of mis-joinder of parties and non-disclosure of reasonable cause of action. The decision is, therefore,with due respect not applicable to this preliminary objection.
9. In the final analysis, I hold that the Claimant has disclosed a reasonable cause of action against the Defendant and the suit is therefore competent.
The preliminary objection fails and it is hereby dismissed.
Ruling is entered accordingly.
IKECHI GERALD NWENEKA
Attendance: Claimant is present, Defendant is absent
M. Obi-Farinde Esq. with K. Uzozie Esq. for the Claimant
O. Umemuo Esq. with C. S. Obuka Esq. for the Defendant