IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 22nd June 2020 SUIT NO. NICN/LA/600/2019
MRS. CHINOYEREM NWAKAKU AKOBUNDU … CLAIMANT
POLARIS BANK LTD. … DEFENDANT
1. By motion on notice dated and filed on 4th February 2020, brought pursuant to Order 18 Rule 2 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 and/or dismissing this suit against the Defendant for want of jurisdiction and for such order or further orders as this Honourable Court may deem fit to make in the circumstances on the following grounds:
a. The liabilities of Skye Bank Plc [the erstwhile employer of the Claimant] assumed by the Defendant does not include employment contracts between Skye Bank Plc and its employees.
b. The claims of the Claimant do not form part of the contingent liabilities assumed by the Defendant.
c. The Claimant has no enforceable right or claim against the Defendant.
d. The Claimant was never an employee of the Defendant herein.
e. There is no privity of contract between the Claimant and the Defendant.
f. The Defendant herein is a not [sic] proper party to this action.
g. The suit as presently constituted does not disclose any reasonable cause of action against the Defendant.
h. The present suit is incompetent and incurably bad for failure of the Claimant to sue the proper Defendant.
i. The Court has no jurisdiction in all circumstances to entertain the suit.
2. The application is supported with 17 paragraphs affidavit deposed to by Dunjoyin Adegboye, legal officer of the Defendant. Attached to the affidavit are two exhibits, marked as Exhibits AA1 and AA2, copies of the purchase and assumption agreement and Defendant’s certificate of incorporation. In compliance with the Rules of the Court, the Defendant filed a written address also dated 4th February 2020.
In opposition to the application, the Claimant filed a counter affidavit of 5 paragraphs dated 21st February 2020 deposed to by Mr. Precious Igbadume, a litigation officer in Law Master’s Chambers, Claimant’s Solicitors and a written address of same date. After receipt of the counter affidavit and written address, the Defendant filed a further affidavit dated 27th February 2020 sworn to by Mr. Ajibola Fatai, legal executive in Defendant’s Solicitors’ Chambers, to which is attached Exhibit P1, a copy of enrolled order of the Federal High Court and reply on point of law dated 26th February 2020.
Arguing the application on 3rd June 2020, Mr. Nicholas Olaoye, learned counsel for the Defendant, relied on the affidavits in support of the application and adopted the written address and reply on point of law as his argument in support of the application and urged the Court to grant the application. Mr. Sobowale Olatunde holding the brief of Olanrewaju Aiyedun for the Claimant, adopted the counter affidavit and written address and argued that at this moment the Court can only look at the originating processes. He urged the Court to dismiss the application.
3. In the written address filed in support of the application, learned counsel for the Defendant formulated three issues for determination, to wit:
“a. Whether having regards to the terms of the Purchase and Assumption Agreement of 21st September 2018 [Exhibit AA1], the Claimant/Respondent’s suit as constituted discloses a reasonable cause of action against the Defendant/Applicant?”
“b. Whether the Claimant has the necessary legal standing [“locus standi”] to institute and/or maintain this suit against the Defendant and in consequence, whether the court has jurisdiction to entertain this suit against the Defendant?”
“c. Whether the Defendant/Applicant are necessary parties [sic] to this action?”
On issue one, counsel submitted that to disclose a reasonable cause of action the originating processes must disclose a cause of action vested in the Claimant and the rights and/or interest of the Claimant which has been violated by the Defendant. He referred to Afolayan v. Ogunrinde  1 NWLR [Pt. 127] 369 at 382-383 and explained that a cause of action is a cause of complaint, a civil right or obligation for determination by a court of law; a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. Flowing from the above, he submitted that for the originating processes to be adjudged to disclose a reasonable cause of action, it must elicit civil rights and obligations known to law which inure in the Claimant; corresponding obligations owed by the Defendant to the Claimant to uphold the said rights and obligations; and the infractions by the Defendant of the Claimant’s civil rights and obligations. He argued that a careful examination of the originating processes shows that there is no dispute that the Claimant was employed by Skye Bank Plc and not the Defendant; and the Claimant did not allege the existence of any contract of employment between her and the Defendant, but sued the Defendant in the mistaken belief that the Defendant is one and the same with Skye Bank Plc and took over all its liabilities. He referred to clause 2.1 of the purchase and assumption agreement, Exhibit AA1, and noted that the Claimant’s claims do not fall within the purview of liabilities of Skye Bank Plc assumed by the Defendant. As a result, he submitted that the Claimant’s case does not disclose any reasonable cause of action against the Defendant.
Relying on the cases of JFS Investments Limited v. Brawal Line Limited  18 NWLR 495 [sic] and Lawal v. G.B. Olivant Nigeria Limited  3 SC 124, he argued that the Court is bound to consider and give full legal effect to Exhibit AA1 in determination of the question whether the Claimant’s suit discloses a reasonable cause of action against the Defendant. It was also argued that an action which does not disclose a reasonable cause of action is incompetent and ought to be struck out by the Court. The case of Rinco Construction Company Limited v. Veepee Industries Limited & Anor.  9 NWLR [Pt. 929] 85 at 96 was cited in support. It was further submitted that by the revocation of the banking licence of Skye Bank Plc, the NDIC became the statutory transferor [sic] of the assets and liabilities of the Bank that are not expressly assumed by the Defendant. Counsel referred to Sections 40 and 41[a] of the NDIC Act and submitted that the Claimant’s claims, if any, reside with NDIC and not with the Defendant. He commended the decision of this Court in Suit no. NICN/UY/37/2018 between Idongesit Celestine Ita v. Polaris Bank Limited to the Court and urged the Court to resolve issue one in favour of the Defendant and strike out the suit.
4. On issue two, counsel submitted that a challenge that a statement of claim discloses no reasonable cause of action amounts to a challenge to the locus standi of the Claimant to institute the action. He cited a number of cases including the case of Owodunni v. Registered Trustees of CCC  10 NWLR [Pt. 675] 315 at 339. It was also argued that based on the submissions on issue one above, the Claimant lacks the locus to institute the action against the Defendant. Learned counsel further argued that the issue of locus standi is a fundamental issue that touches on the jurisdiction of the Court and the effect of lack of locus is that the Court has no jurisdiction to entertain the suit. The case of RTEAN v. NURTW  2 NWLR [Pt. 224] 381 at 391 was cited in support. The Court was urged to decline jurisdiction and strike out the suit.
Arguing the third issue, learned counsel submitted that a party who does not owe the Claimant any legal obligation under a contract cannot be saddled with any responsibility thereunder or sued as a party in an action to enforce the contract. He referred to the cases of C.A.P. Plc v. Vtal NV. Ltd  6 NWLR [Pt. 976] 220 at 251-252 and Cameroon Airlines v. Otutuizu  9 NWLR [Pt. 929] 202 at 223. Counsel noted that there is no dispute whatsoever between the Claimant and the Defendant, which is distinct from the Claimant’s former employer. Reliance was placed on Exhibit AA2. He urged the Court to strike out the suit in its entirety.
5. In response to the Defendant’s argument on reasonable cause of action, learned counsel for the Claimant submitted that whether a reasonable cause of action is disclosed by the Claimant is to be determined by reference to the general form of complaints and statement of facts. It was argued that if the allegations in the pleadings show a real controversy that is capable of leading to the grant of a relief, the pleadings disclose reasonable cause of action. Reliance was placed on the cases of Ibrahim v. Osim  3 NWLR [Pt. 82] 257 and Mobil Prod. [Nig.] Unlimited v. Lasepa & Ors.  18 NWLR [Pt. 798] 1. He submitted that the Claimant’s locus standi is visible from the pleadings and relied on the cases of Charles v. Gov. Ondo State  2 NWLR [Pt. 1338] 294 and Diamond Petroleum International Ltd. v. Governor, CBN & Ors.  14 NWLR [Pt. 1478] 201.
In response to the submission of Defendant’s counsel that the Defendant was sued in error, counsel submitted that the Defendant was not sued by mistake as it is clear that the Defendant stands directly in the position of Skye Bank Plc having taking over the Bank. It was further argued that based on Section 40 of the NDIC Act, the NDIC can be joined as a 2nd Defendant to the suit. Reacting to the case of Idongesit Celestine Ita v. Polaris Bank Limited [supra], counsel submitted that the case has no binding effect on the Court. He explained that the facts, circumstances and antecedents of this present case are different from the facts of that case. The Court was urged to dismiss the motion with substantial cost.
6. By way of reply on points of law, learned counsel for the Defendant contended that paragraphs 4[ii], [iv], [ix] and [xi] of the counter affidavit are arguments and legal conclusions in breach of Section 115 of the Evidence Act, 2011. Relying on the case of G.S. & D Ind. Ltd. v. NAFDAC  5 NWLR [Pt.1294] 517, he urged the Court to strike out the paragraphs. The rest of counsel’s submission is a re-argument of the application and not a reply on points of law.
7. I have carefully read the processes filed by the parties and considered the submissions of counsel and, in my respectful view, the issue for determination in this application is whether this suit should be struck out in limine? The application was brought pursuant to Order 18 Rule 2 of the Rules of this Court and under the inherent jurisdiction of the Court and argued on three grounds. One, that the suit as constituted discloses no reasonable cause of action; two, that the Claimant lacks the locus standi to maintain the action; and lastly, that the Defendant is not a proper party to the suit. Order 18 Rule 2 deals with the order of hearing multiple applications. Order 18 Rule 2 of the Rules provides thus:
“ Where in matter before the Court, a defendant wishes to dispute the jurisdiction of the Court to entertain such a matter, the Defendant may by a motion on notice, and an affidavit disclosing the facts in support of the application with a written address, apply to the Court to hear and determine the motion.”
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 her 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 she seeks. See Iyeke & Ors. v. Petroleum Training Institute & Anor. [supra] at page 99.
8. When an objection is raised that a suit does not disclose a reasonable cause of action against the Defendant, the Claimant does not have a locus standi to maintain the action or the Defendant is not a proper party, it is the originating processes that must be examined to ascertain whether there is a reasonable cause of action, or the Claimant has the standing to sue or the Defendant is a proper party. The Court is not at liberty to have recourse to the statement of defence or the affidavit[s] 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 370, Abatcha v. Sheriff & Anor.  LPELR-40781[CA] 36, Kayode Bakare & Ors. v. Chief Ezekiel Ajose-Adeogun & Ors.  LPELR-22013[SC] 33-35 and Ecobank Nigeria Plc v. Michael C. Metu & Ors.  LPELR-20846[CA] 31. 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.
9. A scrutiny of the statement of facts reveals that it raises serious complaints against the Defendant’s predecessor-bank, Skye Bank Plc, Claimant’s erstwhile employer which, if not properly traversed will entitle her to judgment. The Claimant’s claim is essentially that she was employed by Skye Bank Plc by letter dated 21st July 2006, and placed on indefinite suspension from 6th May 2013 in connection with the loss of US$200,000. She was subsequently arrested, tried and discharged on 31st January 2018 but has not been recalled or paid her salaries till date. The Defendant does not dispute these facts but contends that the operating licence of Skye Bank Plc was revoked by the Central Bank of Nigeria for failing to meet set industry standard; and by a purchase and assumption agreement, Exhibit AA1, the Nigeria Deposit Insurance Corporation sold certain assets and liabilities of Skye Bank Plc to it. It did not thereby assume all the liabilities of Skye Bank Plc and the alleged indefinite suspension of the Claimant and failure to pay her salaries are outside the terms and conditions of the purchase and assumption agreement. The Defendant also explained that Skye Bank Plc has been wound up and the Nigeria Deposit Insurance Corporation is “the statutory transferor [sic] of the assets and liabilities of the Bank that are not expressly assumed by the Defendant.” In proof of these facts it tendered the purchase and assumption agreement, Exhibit AA1, certificate of incorporation, Exhibit AA2 and winding up order, Exhibit P1.
10. This is the foundation for the Defendant’s submissions that the suit does not disclose a reasonable cause of action; the Claimant lacks the locus standi to maintain the action; and the Defendant is not a proper party to the suit. The question one may ask is, can this Court on the basis of the facts disclosed in the affidavits in support of the application or the statement of defence, strike out this suit in limine? I do not think so. First, it is settled law that in an application based on non-disclosure of a reasonable cause of action, Claimant’s lack of locus standi and joinder of a wrong 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.”
See also Kayode Bakare & Ors. v. Chief Ezekiel Ajose-Adeogun & Ors. [supra] and Ecobank Nigeria Plc v. Michael C. Metu & Ors. [supra]. In the earlier case, Ariwoola, J.S.C., posited that in determination of the Claimant’s locus standi, it is the statement of claim that should be considered. In Ecobank Nigeria Plc v. Michael C. Metu & Ors. [supra], Tsammani, J.C.A, observed that it is the Claimant’s claim that gives her the right to initiate the action or to seek to join a Defendant.
11. As conceded by learned counsel for the Defendant, the issue of non-disclosure of reasonable cause of action is intricately connected with the Claimant’s locus standi. Having found that this suit discloses a reasonable cause of action, can it then be said that the Claimant does not have a locus standi to maintain this action? The answer is a resounding no! The Defendant cannot legitimately argue that the Claimant does not possess the standing to sue in the circumstance. What grounds a locus standi to maintain an action is the Claimant’s sufficient interest in the subject matter of the suit, the injury or threat of injury she would suffer which is sought to be protected. See Kayode Bakare & Ors. v. Chief Ezekiel Ajose-Adeogun & Ors. [supra] at page 34. Further, it is the Claimant’s claim that gives her the right to initiate the action and to join a Defendant.
Order 13 Rule 4 of the Rules of this Court provides thus:
“Any person may be joined as Defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative.”
The key words there are “alleged to exist”. Whether this right exists in fact or not is a question of evidence. The Claimant’s case is anchored on the fact that the Defendant succeeded Skye Bank Plc and liable to pay her entitlements and this is in accordance with the Rules of Court. The facts in support of this application are facts which the Defendant relies in defence of the suit and this Court cannot at this stage of the proceeding consider the correctness or otherwise of those facts as doing so will amount to delving into the substantive matter. The Court is enjoined to refrain from deciding the very questions which it will determine in the substantive case at the interlocutory stage. See Mobil Oil Nigeria Plc & Ors. v. Kena Energy International Limited  LPELR-5863[CA] 11.
12. In addition, the issue of privity of contract raised by the Defendant in ground 5 of the grounds in support of the application and paragraph 5.7 of its written address does not arise for consideration in an application of this nature which seeks to strike out or dismiss the suit for want of jurisdiction. 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. [as he then was], 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 judgment of 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 involved similar facts and circumstances. The Court therein held that the Claimant did not disclose any reasonable cause of action against the Defendant. I have found earlier in this Ruling that this suit discloses a reasonable cause of action, the Claimant has the locus standi to maintain the action and the Defendant is a proper party. This finding is consistent with settled judicial authorities. Therefore, the decision is, with due respect, not applicable to this case.
13. Before I conclude this Ruling, let me briefly comment on counsel’s objection to paragraphs 4[ii], [iv], [ix] and [xi] of the counter affidavit. Section 115 of the Evidence Act, 2011, provides that an affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion. It is the law that any paragraph of an affidavit which offends this provision is liable to be struck out, but if not struck out, the Court will not attach any weight to it. See Keystone Bank Limited v. A. O. S. Practice  LPELR-20357[CA] 29. However, beyond complaining that the paragraphs constitute arguments and legal conclusions, learned counsel for the Defendant did not say which of the paragraphs constitute legal arguments and which is conclusion. The two expressions are not the same. While legal arguments are matters which counsel may press in Court, conclusions are for the Court to reach. See Bauhaus International Ltd. & Anor. v. Midfield Investment  LPELR-3860[CA] 23-24. It is not for the Court to dissect the paragraphs to discover which paragraph constitutes legal arguments and conclusions. This is the job of the counsel. Having failed to do so, I hold that the objection has not been properly taken and it is consequently overruled.
The second issue was raised in paragraph 2.16 of the Claimant’s written address and paragraph 4.21 of the Defendant’s written address to the effect that the Claimant’s claims, if any, reside with the Nigeria Deposit Insurance Corporation. Order 13 Rule 14 of the Rules of the Court permits the Court to join a party whose presence is necessary to effectually and completely adjudicate on the questions involved in the proceeding. It is clear from the facts before this Court that the Nigeria Deposit Insurance Corporation is a necessary party to this proceeding.
14. In the final analysis, I hold that this suit discloses a reasonable cause of action against the Defendant. As a corollary, I hold that the Claimant has the requisite standing to maintain the action and the Defendant is a proper party to this proceeding. Accordingly, this Court has jurisdiction to entertain the suit. Arising from my finding that the Nigeria Deposit Insurance Corporation is a necessary party to this proceeding, I hereby make an order pursuant to Order 13 Rule 14 of the Rules joining the Nigeria Deposit Insurance Corporation as 2nd Defendant to this suit. The originating processes shall be amended to reflect this joinder.
Consequently, the motion on notice dated 4th February 2020 fails and it is hereby dismissed.
Ruling is entered accordingly.
IKECHI GERALD NWENEKA
Attendance: Parties are absent
Sobowale Olatunde Esq. holding the brief of Olanrewaju Aiyedun Esq. for the Claimant
Nicholas Olaoye Esq. for the Defendant