IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 10th October 2018                         

SUIT NO: NICN/ABJ/122/2018

 

Between:             

 

Kins Ekebuike                                                                      -                       Claimant

 

And

 

Unity Kapital Assurance Plc                                             -                       Defendant

 

Representation:

Dr. Alex Akunebu, with him, Paschal Jiwuaku for the Claimant

S. A. Akanni, with him, O. E Adejo for the Defendant

 

RULING

The Claimant commenced this action in this court on 27th April 2018 by means of the Originating Summons. In his Originating Summons, the Claimant sought the determination of the following questions:

1.         Whether the payment of the sum of N10,000,000.00 (Ten Million Naira) only by the Respondent constituted an ACCORD  AND SATISFACTION of the full and final settlement of the Claimant  remunerations at 50% as agreed in paragraph (b) of the compromise agreement between the parties dated 3rd October, 2017.

2.         Whether the Courts are bound to interpret and enforce the contract between parties or/and whether a party to an agreement can unilaterally waive or vary the terms of an agreement without mutual consent.

3.         Whether the Claimant as a labourer is entitled to his wage, being the sum of N84,989,982.38k (Eighty-Four Million, Nine Hundred and Eighty Nine Thousand, Nine Hundred and Eighty- Two Naira, Thirty-Eight Kobo) only, being 50% salary, allowances and entitlements arrears from 1st October, 2014 to 2nd October 2017 as agreed in Paragraph (b) of the compromise or settlement, agreement of the parties dated 3rd October, 2017.

 

Upon the determination of the above questions, the Claimant sought for the following reliefs:

1.         A Declaration by the Honourable Court that the failure, neglect and/or deliberate refusal of the Respondent to fully Comply with the provisions of paragraph (b) of the compromise or settlement agreement between the parties is a breach of the contract entered into by the parties.

2.         AN Order of this Honourable Court commanding the Respondent to pay the sum of N84,989,982.38k (Eighty-Four Million, Nine Hundred and Eighty Nine Thousand, Nine Hundred and Eighty-Two Naira, Thirty-Eight Kobo) only, being 50% salary and entitlements arrears from 1st October, 2014 to 2nd October, 2017.

3.         An ORDER of this Honourable Court commanding the Defendant to pay the sum of N100,000,000.00 (One Hundred Million Naira) only to the Claimant as damages for breach of contract.

4.         An Order of this Honourable Court commanding the Respondent to pay 10% interest of the judgment sum per annum until the judgment sum is liquidated.

5.         And further sum of N10,000,000.00 (Ten Million Naira) only as cost of this suit.

 

The Claimant filed an affidavit in support of the originating summons together with a written address by the Claimant’s counsel. The Claimant also filed a further affidavit. The Defendant filed a counter affidavit to the originating summons and a motion challenging the competence of the suit. The substantive action and the motion of the Defendant were heard together on 17/7/2018 with the view of giving my decision on them today. The Defendant’s application has to do with the competence of the Originating summons. I want to consider and determine it first before going into the substantive matter, if necessary.

 

The Defendant’s motion, filed on 11/5/2018, was brought under Order 3 Rule (3) and Order 17 Rule 1 of the NICN Rules 2017. The motion prays for an order striking out this suit for being incompetent. The grounds upon which the prayer was premised are as follows:

1.         That the claims on the originating summons in the sum of N84.389,982.38 is contestable.

2.         The sum of N100,000,000 as damages and the N10,000,000 cost of this action are matters that cannot be resolved by originating summons.

 

In the affidavit in support of the motion, deposed by James Adah, the Litigation Secretary in the chambers of the counsel for the Defendant, it was averred that the Claimant’s claim for the sum of N84,989,982.38 is not contained in Exhibit 3A attached to the originating summon in addition to the fact that the calculation is Exhibit 9A attached to the originating summons was done by a person at large and the Defendant is not aware of same.  It was also averred that the claim for the sum of N100,000,000.00 as damages is the imagination of the Claimant as he has been fully paid. The Defendant did not also breach any terms of the agreement between them.

 

The arguments in support of the motion are contained in a written address by counsel for the Defendant wherein counsel formulated one issue for determination viz: Whether a claim that is contestable can be commenced by Originating summons. Arguing this issue, the Defendant’s counsel submitted that under Order 3 Rules 3 of the National Industrial Court Rules 2017, actions which can be commenced by originating summons is limited to matters relating to interpretation of the constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations. The procedure cannot be used to commence actions where there is substantial dispute of fact between the parties. Counsel cited the cases of OMOJOLA vs. OYATERU (2009) All FWLR (Pt. 453) 1318 and OGUNSOLA vs. APP (2004) All FWLR (Pt.207) 727 in support of his arguments. Counsel concluded by urging this court to strike out the suit for being incompetent.

 

In opposing the motion, the Claimant filed a counter affidavit to which he personally deposed. The Claimant stated that the primary issue for the court’s determination is whether the Defendant breached terms of the agreement reached between them. The sum of N84,999,982.00 he claims is the consequence of the breach of the agreement between them. The Defendant rather than pay the agreed 50% merely paid him the sum of N10,000,000.00 as the full and final settlement in discharge of its obligations in Exhibit 3A. The sum calculated in Exhibit 9A is a consequential product of the breach of Exhibit 3A. The Claimant further stated that there is nothing contentious in the originating process and that the originating summons is competent because the suit is about interpretation of Exhibit 3A.

 

In his written address in support of the counter affidavit, the Claimant’s counsel submitted that this court has the power, under Order 3 Rule 3 of the National Industrial Court Rules 2017 to interpret agreements or any other documents relating to employment between parties. What the court has been called upon in this case to interpret is the provisions of Exhibit 3A of the Originating Summons. Counsel cited EDU vs. NBN (1970 - 71) NSCQR 856 and AGBAJE vs. SHONIBARE (1970 -71) NSCQR 683. Counsel submitted further that the reliefs sought by the Claimant are consequential to the interpretation of Exhibit 3A and the amount quoted in Exhibit 9A is a liquidated money demand, which is incontestable as it was derived from the conditions of service issued by the Defendant. The reliefs sought by the Claimant are the natural consequences of the Defendant’s breach of Exhibit 3A. The case of AMAECHI vs. INEC (2009) 3LC P.421 PAGE 443 RATIO 33 was relied on.

 

The Claimant’s counsel further submitted that where there is a wrong, there is a remedy. The Claimant is entitled to damages for breach of contract. Accordingly, the contention by the Defendant that damages cannot be awarded under an Originating Summons is spurious and unknown to law. The cases of AIB LTD vs. IDS LTD (2012) 17 NWLR (Pt.1328) P. 1 and NGS CO. LTD vs. NPA (Pt.129) 71 were cited. Counsel concluded his arguments by urging this court to dismiss the motion.

                                                                                                                    

COURT’S DECISION

The contention of the Defendant in this motion is that the Claimant’s suit is not one to be heard by way of originating summons proceedings in view of his contentious claims.  The Defendant has also made the point that this case involves substantial dispute of facts. The rules of this court which provided for commencement of actions in this court by originating summons has also itemised the actions which can be commenced by the process and those which cannot. Order 3 Rule 3 of the NICN Rules 2017 provides as follows:

“Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria”.

 

Similarly, Rule 17 (1) of Order 3 provide thus:

“… where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by way of originating summons, but by Complaint as provided for in rules 8 and 9 of this Order”.

 

The courts have also settled the instances where originating summons will not be appropriate to commence an action in several decisions. In NIGERIAN REINSURANCE CORPORATION vs. CUDJOE (2008) All FWLR (Pt. 414) 1532 at 1556 it was held:

“Where it is obvious or evident from the state of the affidavit evidence that there will be an air of friction in the proceedings, then an originating summons is no longer appropriate. An originating summons is only applicable in such circumstances as where there is no dispute on questions of fact or likelihood of such dispute.”

 

Also in DAPIANLONG vs. DARIYE (2007) 4 S.C.  (Pt. III) 18, it was held thus:

“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute

 

It is clear from the Rules of this court and the authorities cited above that Originating summons is inapplicable or inappropriate for actions where the facts are in dispute or there is likelihood of their being in dispute or where the question in issue is not one solely for the construction of a written law, Constitution or any instrument, agreement or document.

 

In this case, although the Claimant appears to base his case on the terms of an agreement exhibited as Exhibit 3A to the Originating Summons, his claims in this case however takes his case beyond mere interpretation of that agreement. The claimant said he was paid the sum of N10,000,000.00 by the Defendant but now wants the court to determine whether that sum constitute 50% of his entitlements as agreed in the agreement. The Claimant alleged that the sum of N84,989,982.38 will constitute 50% of his entitlement which sum he claims in this action in addition to the sum of N100,000,000.00 as general damages for breach of contract. Although the said agreement contains payment of 50% of the Claimant’s entitlements, there is nowhere in the agreement the sum of N84,989,982.38 was agreed to be 50% of his entitlements. The question arising from this term of the agreement is what is the 50% of the Claimant’s entitlements? The case is not merely to interpret the agreement. It is to determine what 50% of the Claimant’s entitlements is. This is a matter of evidence.

 

The Defendant filed a counter affidavit where it disputed the Claimant’s allegation and averred that it had paid all the Claimant’s due entitlements.  In view of the questions for determination and the contents of the affidavits of the parties in this matter, it is clear to me that there is substantial dispute of facts in this case. I have also observed that the suit is far from being a question of merely interpreting an agreement. These observations have taken the Claimant’s case outside the scope of proceedings which can be begun by originating summons. Where the disputed facts are substantial as in the present case, the proper mode of commencing such action is by Complaint. I agree with the counsel to the Defendant that originating summons is not a suitable procedure to adopt in this suit. I hold therefore that this action was wrongly commenced by means of originating summons.

 

The Defendant has urged this court to strike out the suit for being incompetent. I do not share this view. Although the suit was brought by an irregular process, it is not incompetent on that ground. The position of the courts in situations of this nature is not to strike out the suit but to proceed by either converting the suit to Complaint or order the parties to file pleadings. See Order 3 Rule 17 (2) of the NICN Rules 2017 which provides that a suit commenced by the wrong process shall not be struck out but the court is to order the suit to be converted to Complaint and the parties be directed to file and exchange pleadings. In OSUNBADE vs. OYEWUMI (2007) 18 NWLR (Pt. 368) 1004 at 1015, the Supreme Court gave this same direction in these words-

“The proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons, is to order pleadings and not to dismiss such action or pronounce on the merit of the case.”

 

See also NIGERIAN REINSURANCE CORPORATION vs. CUDJOE (supra) at 1556; KWARA POLYTECHNIC vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 192. Therefore, this suit cannot be struck out. The suit is ordered instead to be converted to a Compliant. The Claimant is ordered to file a Statement of Facts together with the processes to accompany it. This must be done within 14 days from today. The Defendant too is given 14 days from date of service, to file its pleadings.

 

No order as to cost.

 

Ruling is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge