IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 24th Sept 2018                                         

SUIT NO: NICN/ABJ/128/2018

 

Between:             

 

Musa Maryamu Lydia                                             -                       Claimant/Respondent

 

And

 

Design Logic Limited                                              -                       Defendant/Applicant

 

Representation:

I. D. Nnabuihe, with him, S. O. Unogwu for the Claimant/Respondent

Cordelia Williams-Yisa (Mrs.), for the Defendant/Applicant

 

                                                               RULING

This matter was instituted by way of Complaint filed on the 3rd of May 2018 wherein the Claimant claims against the Defendants as follows:

1.         The payment of the sum of N4,504,150.00 (Four Million, Five Hundred and Four Thousand, One Hundred and Fifty Naira) as agency fee owed to the Claimant during the course of her employment with the Defendant.

2.         Award of N10,000,000.00 (Ten Million Naira) as damages for breach of trust and hardship.

3.         5% interest per annum on the judgement sum until it is liquidated.

4.         The sum of N1,000,000.00 (One Million Naira) being the cost of this suit.

5.         Any order or further orders as the court may deem fit to make.

 

This ruling is on a preliminary objection filed by the Defendant seeking the following orders-

1.         An order dismissing or in the alternative striking out this Suit for being irredeemably incompetent.

2.         An order dismissing or in the alternative striking out this Suit for lack of jurisdiction.

3.         And for such further or other orders as this Honourable Court may deem fit to grant in the circumstances of this suit.

 

The grounds upon which the Defendant’s objection is based are as follows:

1.         This Honourable court lacks the requisite jurisdiction to hear and/or determine this suit as the matter before it is a case of agency and does not fall within the purview of the jurisdiction of this Honourable court.

2.         This Honourable Court lacks the requisite jurisdiction to hear and/or determine this suit, as the complaint filed and the accompanying Statement of Facts is fundamentally defective and irreparably bad

3.         A complaint being the foundation of a suit, if incompetent renders the suit incompetent and liable to be struck out.

4.         The Claimant's Complaint dated 3rd May, 2018 is fundamentally defective as the Counsel who prepared it used an expired seal and neither was a valid stamp and seal affixed to the Statement of Facts.

5.         Use of an expired NBA seal herein renders the complaint and the Statement of Facts respectively incompetent, incurably bad and liable to be struck out.

6.         A suit cannot be based on a defective Complaint.

 

In the affidavit in support of the NPO, deposed to by Gloria Mana Yisa, a Secretary in Messrs Williams, Cordelia & Co., it was deposed that the claims of the Claimant in this case are based on an agency relationship between the parties., and that the Complaint was sealed with an expired NBA seal by the legal practitioner who prepared and filed it; that this suit is incurably bad and the Honourable court lacks the jurisdiction to entertain the suit.

 

Accompanying the preliminary objection was a 6-paragraph affidavit and a written address wherein counsel formulated two issues for determination to wit:

a.      Whether the use of an expired NBA seal on the Claimant's Complaint and Statement of Claim in commencing this Suit ought not to entitle the Applicant to the reliefs sought in its Motion on Notice.

b.      Whether the court has jurisdiction to entertain this suit being that the matter is purely a case of agency.

 

On Issue One, counsel reproduced the provision of Section 10 of the Rules of Professional Conduct and the case of YAKI vs. BAGUDU (2015) 18 NWLR (Pt. 1491) 288 SC. Learned counsel for the Defendant argued that there was no valid stamp and seal affixed to the process in a suit and that that omission on its own invalidates the processes and renders them incompetent. Counsel placed reliance on the following authorities. EFFIONG vs. EBONG (2007) 28 WRN 71 C.A at P.90, UDENE vs. UGWU (1997) 3 NWLR (Pt. 491) 57 @ 70 PARA. G, UCHI vs. SABO (2016) 16 NWLR (Pt. 1538) 264.

It was the submission of learned counsel that going by the provision of Section 254 (C) of the 1999 Constitution of the Federal Republic of Nigeria as amended (3rd Alteration) and the provision of Section 7 of the National Industrial Act, the court does not have jurisdiction to entertain this suit because the suit is purely a case of agency where a former employee of a company who was under salary employment was assured that she will be paid commission if she could bring clients who will buy houses from the Defendant/Applicant. See AG FEDERATION vs. ABUBAKAR (2008) 8 NWLR (Pt. 1112) SC 135. Counsel urged the court to hold in favour of the Defendant.

In opposing the NPO, the Claimant filed a counter affidavit deposed to by Sullamitee Waneri, a litigation clerk in the chambers of I. S. Ojukwu & Co. The deponent averred that the claims of the Claimant are not based on agency relationship between the parties but fees/commission arising from employer/employee relationship between the parties. The fee/commission is contained in the Claimant’s letter of employment. This Court has the power and jurisdiction to entertain this suit. It was also deposed that the seal complained of by the Defendant was a mistake made by the deponent who inadvertently used an old and expired seal instead of the current seal given to her by her employer when she was to file the process.

 

In the accompanying written address, learned counsel for the Claimant formulated 3 issues for determination to wit:

1.     Whether the suit of the Claimant is based on agency agreement or contract of employment.

2.     Whether this court has jurisdiction to entertain this suit.

3.     Considering but not conceding that an expired seal was used in filing a court process, does it make the said process incompetent thereby robbing the court of its jurisdiction?

 

On Issue 1, counsel submitted that the suit of the Claimant is based on contract of employment between the Claimant and the Defendant/Employer and relied on the case of FMC, IDO EKITI vs. KOLAWALE (2012) All FWLR (Pt. 653) Pg. 2011 para D.F. Placing reliance on the case of LONGE vs. FBN PLC (2010) 6 NWLR (Pt. 1189) 3C, counsel contended that the claims of the Claimant arose from the contract of employment between the Claimant and the Defendant and not from any agency agreement and that the Claimant is not the agent of the Defendant but rather its employee. See also S.S & CO LTD vs. AFROPAK (NIG) LTD (2008) 18 NWLR (Pt. 1118) Pp 94-95, C-C 102, para D-E.

 

In answering Issue 2 in the issue in the affirmative and relying on the provisions of Section 254 C (1) (a) and (k) of the 1999 Constitution of the Federal Republic of Nigeria as amended. It was the submission of learned counsel for the Claimant that the claims for payment of 5% agency fee/commission are matters that arose from the work plan of the Claimant and it is contained in the offer letter of the Defendant. Counsel argued that once it is constitutionally conferred and thereby assumed, the power of the Court is not vitiated merely because of the litigant's inability to draw any benefit from the resolution of the dispute in respect of which the jurisdiction of the Court has been invoked. See ABDULSALAM vs. SALAMU (2002) 6 SC (Pt 11).

 

Counsel answered the question in Issue 3 in the negative. In defence of the expired seal, counsel argued that it was an oversight and that the issue of seal and stamp cannot make a legal document null and void and counsel sighted a plethora of cases to defend his position. Counsel also reiterated that the court had not been robbed of its jurisdiction to entertain the suit and urged the court to hold in favour of the Claimant

 

COURT’s DECISION

From the several grounds of the Notice of Preliminary Objection and the submissions of the Defendant’s counsel in the written address in support of the Preliminary Objection, I have identified only two grounds of objection canvassed by the defendant. These are:

1.         That the Claimant’s cause of action arose from agency relationship which does not fall within the subject matter jurisdiction of this court.

2.         That the originating process is incompetent because the NBA seal of Claimant’s counsel affixed thereto is expired.

 

In determining this Preliminary Objection, I will consider these two principal grounds of the NPO one after the other.

 

The Defendant has contended that the claims of the Claimant in this case are based on an agency relationship between the parties. It was on this basis the Defendant asserted that the court does not have jurisdiction to entertain the suit. In paragraphs 3, 4, 5 and 6 of the statement of facts, the Claimant pleaded that she was employed by the Defendant as a marketing officer on 12th May 2015. In addition to her annual salary of N600,000.00, she was entitled to be paid commission of 5% on any unit of house sold by her as agency fee. These were some of the terms of her employment as contained in her appointment letter frontloaded with the Complaint. The cause of action of the Claimant and her claims in this case is for the sums which accrued to her as agency fee for houses sold by her during the employment.

 

The causes or subject matters which this court can entertain are set out in Section 254-C of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Subsection 1 (a) thereof provides that this Court shall have and exercise jurisdiction in civil causes and matters “relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the condition of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith”. By the facts pleaded by the Claimant and her appointment letter, I find that the Claimant had an employment relationship with the Defendant. Now, the claim for agency fee by the Claimant arose from that employment. The Claimant’s suit is not a pure agency matter but a cause which arose from an employment relationship with the Defendant. The Claimant’s suit falls into the subject matters on which this court has jurisdiction to entertain. The Defendant is overruled on this ground of its objection.

 

On the second leg of the objection, it is observed that the Claimant’s Complaint and Statement of Facts was signed by Ikechukwu Stanley Ojukwu Esq., the Claimant’s counsel. Counsel’s NBA seal was also affixed to the statement of facts. However, the affixed seal shows that it was only valid till March 2018. The Claimant’s processes were filed on 3rd May 2018. That is to say the NBA seal of the Claimant’s counsel affixed to the originating processes had expired at the time the processes were filed. It was on this ground the Defendant contended that the originating process is incompetent and sought this court’s order to strike out the suit.

 

In the Counter affidavit of the Claimant, it was deposed that the NBA seal of the Claimant’s counsel affixed to the processes was a mistake done by the litigation clerk of the Claimant’s counsel who mistakenly affixed counsel’s expired seal instead of the current seal she was given to affix to the process. I have observed that the Claimant’s counsel, Mr. Ikechukwu Stanley Ojukwu, who filed the originating processes, has affixed his current NBA seal to the motion for extension of time to file the Claimant’s counter affidavit to this NPO and on the written address in support of the counter affidavit. That is to say counsel has the current NBA seal at the moment. I am inclined to believe that the expired seal affixed to the originating processes was an error as deposed in the counter affidavit. The fact that the Claimant’s counsel has the current NBA seal simplifies the issue. I will therefore not over-flog this issue. What the Claimant’s counsel needed to do in the circumstances is simply to validate the processes by affixing a valid seal to the originating processes. This court will, in the interest of justice allow Mr. Ikechukwu Stanley Ojukwu Esq., to affix his current NBA seal on the originating processes. The copy of the processes in the file of this court and the copy served on the Defendant must be sealed separately. This must be done today. I will stand down this matter for one hour to enable counsel comply with this order after which I shall conclude this ruling.

 

The Claimant’s counsel has now affixed the current NBA seal to the originating processes. The processes are now valid. Consequently, the Defendant is also overruled on this ground of the objection. In the result, I find no merit in the NPO. It is dismissed.

 

No order as to cost.

 

Ruling is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge