IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 29th November 2017
SUIT NO: NICN/ABJ/136/2016
Peter Samuel - Claimant/Respondent
U. A. C. Supreme Ice Cream - Defendant/Applicant
Sandra Oyibodokaye, with her, T. G. Iwu, for the Claimant/Respondent
Sunday Asana for the Defendant/Applicant
By a Notice of Preliminary Objection dated and filed on 6/6/2017 and brought pursuant to Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the inherent jurisdiction of the court, the Defendant prayed the court to dismiss the Claimant’s suit for want of reasonable cause of action or competence. The grounds of the Preliminary Objection are these:
1. There was no contract of employment between the Claimant and the Defendant, particularly that the Defendant did not, at any time, issue the Claimant any sealed letter of appointment.
2. The Claimant’s originating process discloses no reasonable cause of action.
In the written address in support of the NPO, learned counsel for the Defendant Mr. Sunday Asanaraised a sole issue for determination to wit:
Whether the Claimant’s Suit discloses a reasonable cause of action.
Counsel submitted that the Claimant's Suit discloses no reasonable cause of action. Counsel cited the case of PAULINUSCHUKWU& ORS vs. MATHEW AKPELU (2013) LPELR 21864(SC) where Cause of Action was defined/described by the Supreme Court in the following terms:
"From the various judicial decisions and authorities enunciated, the phrase cause of action denotes the presence of two elements: (a) The wrongful act of the defendant which gives the plaintiff a cause of complaint, and (b) The subsequent damage caused to the plaintiff. A cause of action therefore enthrones jurisdiction on the court; the absence of which renders the suit incompetent and liable to be struck out. See Chevron (Nig.) Ltd. v. Lonestar Drilling (Nig.) Ltd.(2007) All FWLR(Pt. 386) 533 at 641-642. It is elementary to say that the determining factor of an issue is predicated on the claim at the trial court ..." Per OGUNBIYI, J.S.C
According to counsel, in order to determine whether there is a Cause of action against a party in a suit, recourse must be made to the Originating Processes filed by the Claimant. On this point, counsel cited the case of SOCIETYBIC S.A. & ORS vs. CHARZIN INDUSTRIES LIMITED (2014) LPELR-22256 (SC), where the Supreme Court held that the only document which the court will look at in determining the cause of action in a suit are the writ of summons and the statement of claim.
Citing the case of Omin III vs. Gov. Cross River State (2007) Vol. 41 WRN 158 at 186, lines. 15 - 35 (CA), Counsel submitted thatwhere an Originating Process discloses no Cause of Action against a party, such irregularity is fatal to the case of the Claimant against that party, such that it robs the Court its substantive jurisdiction to determine the Case.
Counsel also relied on theSupreme Court holding in the case of MESSRS. NV. SCHEEP & ANOR vs. THE MV "S.ARAZ" & ANOR (2000) LPELR-1866(SC) (2000) 15 NWLR (Pt.691) 622, (2000) 12 S.C (Pt. I)164, (2000) All N.L.R 643, thus:
"It is a well settled principle of the institution of proceedings that jurisdiction of the court is determined by the cause of action of the plaintiff as endorsed on the writ of summons" – See Adeyemi vs. Opeyori (1976) 9-10 Sc. 31." Per Karibi-Whyte JSC.
Counsel further referred the court to the case of PAULINUS CHUKWU & ORS v. MATHEW AKPELU (supra) and submitted that for there to be a reasonable Cause of Action, the Claimant must show the positive acts of the Defendant which has caused him injury.
According to counsel, in the instant case, theClaimant was not employed as a staff under the seal of the Defendant as there was no letter of employment issued to that effect. Hence, there was no contract of employment/service between the Claimant and the Defendant.He went onthat since the Claimant was not issued a letter of appointment under the seal of the Defendant, the Claimant suit discloses no reasonable cause of action, and as a result, the Claimant has no locus standi to commence the Suit. Counsel urged the court to hold that the Claimant’s Suit does not disclose any reasonable cause of action against the Defendant and that the Defendant's locus standi to commence the Suit is extinguished and accordingly, dismiss the Suit.
The Claimant filed a counter affidavit and a written address in opposition to the Notice of Preliminary Objection. It is observed that the Defendant did not support the Notice of Preliminary Objection with an affidavit. Since there is no affidavit filed in support of the NPO, I will discountenance the counter affidavit filed by the claimant as it has no use in determining this application.
In the written address filed by the Claimant’s counsel, it is submitted that the Claimant's case discloses a reasonable cause of action and that the averments in the statement claim clearly set out the legal rights of the Claimant and obligations of the Defendant. A cause of action means any facts or sets of facts which are complete in themselves to found a claim or relief. See S.P.D.C vs. X.M. FEDERAL LTD (2006) 16 NWLR (Pt. 1004) 189. A cause of action has been defined as a fact which when proven would entitle a Claimant to a remedy against the Defendant. It was the submission of counsel that the Claimant had set out the facts upon which reliefs were sought against the Defendant and urged the Court to so hold.
According to counsel, Cause of action has been variously defined in judicial decisions as the facts or combination of facts which consists of the wrongful act of the Defendant which gives the plaintiff the right to complain and the damage consequent due to the wrongful act. See EGBUE vs. ARAKA (1988) 3 NWLR (Pt. 84) 598. Counsel pointed out that it is from the averments in the statement of claim that a reasonable cause of action is disclosed. The statement of claim in the instant case has clearly set out the legal rights of the Claimant and the obligations of the Defendant, and it also shows the wrongful act of the Defendant and the damage caused to the Claimant. Counsel submitted that a reasonable cause of action exists to be tried. He therefore urged the Court to dismiss the Preliminary Objection of the Defendant.
Citing the case of ASHAKA vs.NWACHUKWU (2013) LPELR- 20272, (CA) Counsel submitted that it is trite law that contracts may be oral or written.
"A contract or an agreement may be in writing or orally or even by the conduct of the parties"
According to Counsel, S.71 (I) (C) &(2) of CAMA recognizes that a company may enter into a parol contract and such contract is effectual in law and binding on the company. Counsel submitted that the Claimant was duly employed and the Defendant promised to give him his employment letter at the end of three months of service. According to counsel, from the facts of the case and the Counter Affidavit it is unambiguous that there is a binding parol contract between the Claimant and the Defendant. Counsel argued that the Defendant cannot deny this fact more so because when the Claimant was admitted at the GwagwaladaSpecialist Hospital, the Defendant paid for the surgery of the Claimant in that hospital. Counsel opined that they could only have done that because the Claimant was their employee and the accident happened in the course of the Claimant's duties. Counsel emphasized that Exhibit A is a proof of this fact.
According to counsel for the Claimant, the Defendant is not denying liability, but is only trying to rely on technicality to escape liability; and that the attitude of the court has always been that cases should not be decided on the basis of technicalities. See HENRY ODEH vs. FEDERAL REPUBLIC OF NIGERIA (2008) 3-4 SC 1147, LAGGA vs. SARHUNA (2008) 16 NWLR (Pt. 1114) 427. Counsel therefore urged the Court to dismiss the Defendant's Preliminary Objection.
In determining this Notice of Preliminary Objection, I will use the issue formulated by the Defendant’s counsel in the written address in support of the Preliminary Objection. The issue is whether the Claimant’s suit discloses a reasonable cause of action.
A cause of action is the combination of facts consisting of the alleged wrongful act of the Defendant which gives the Claimant the right to complain and which entitles the Claimant to claim against the Defendant in an action. See ACCORD PARTY vs. GOVERNOR OF KWARA STATE (2011) All FWLR (Pt.555) 220; MOHAMMAD vs. UNIVERSITY OF ABUJA (2015) All FWLR (Pt.809) 991. Where no cause of action is disclosed by the Claimant, the suit is incompetent and it is liable to be struck out. It is trite that to determine whether a Claimant has a cause of action against the Defendant, the processes to examine are the originating processes. See AKINOLA vs. WEMA BANK (2015) All FWLR (Pt.795) 292; NKPORNWI vs. EJIRE (2011) All FWLR (Pt.557) 716.In this case, the processes will be the Complaint and the statement of facts.
The claims of the Claimant against the Defendant in this suit are the following:
i. A Declaration that the act of the Defendant in abandoning the Claimant for over a year at the hospital is wrongful and a breach of the Defendant’s duty of care which has led to the Claimant’s permanent deformity
ii. An Order Directing the Defendant to pay the Claimant his salaries from the month of October 2009 till date and to continue to pay his salaries at the agreed sum of
N10,000.00 per month until his appointment is officially terminated.
iii. Award of
N30,000,000.00against the Defendant as compensation for the Claimant’s permanent deformity
iv. Award of
N2,000,000.00 as general damages for ill treatment, abandonment and refusal to pay the Claimant’s salaries till date
v. Award of 10% interest per annum on the entire judgment sum from date of judgment till same is fully liquidated.
In his amended statement of facts, the Claimant averred that he was employed by the Defendant in July 2009 as a driver on a monthly salary of
N10,000. Although he was promised to be given an appointment letter after 3 months, he served the Defendant in these 3 months and he was paid salaries. In the 4th month, the Defendant directed the Claimant to proceed to the Defendant’s Jos office in company of Mr. Phillip, the Abuja branch Sales Manager, to collect his appointment letter. On the way to Jos, Mr. Phillip took over driving of the vehicle but lost control of the vehicle during the trip which resulted in an accident. The Claimant lost his right leg in the accident. The Claimant was admitted in the hospital but the Defendant abandoned him there for over a year and refused to pay his medical bills. Following some interventions on behalf of the Claimant, the Defendant eventually settled the hospital bills. However, the Defendant has not paid his salaries from October 2009 till date. The Defendant has also refused to reinstate him since his return from the hospital even though no letter has been written to terminate his appointment. The Defendant has caused him severe economic hardship and permanent deformity.
From the facts and the reliefs sought by the Claimant, it is my view that the Claimant has disclosed a reasonable cause of action against the Defendant. The only reason advanced by the Defendant for its contention in this application is that there was no employment relationship between the Claimant and the Defendant. But the Claimant has averred in paragraphs 3, 4 and 5 of the amended statement of facts that he was employed by the Defendant, he worked for the Defendant and he was paid salaries. Whether or not non-issuance of sealed appointment letter to the Claimant is material to the Claimant’s case is a matter to be determined at the end of the matter but not in this application. Therefore, I find no merit in this Preliminary Objection. Same is hereby dismissed. No order as to cost.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe