IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

 

DATE: APRIL 17, 2024                                        

SUIT NO.: NICN/LA/116/2018

 

BETWEEN

OBEIKO FADRAL EDEHA                                      CLAIMANT/RESPONDENT

 

AND

1.   GLOBAL HAULAGE RESOURCES LTD

2.   BULUS BUNKEN DAN-HABU (RECEIVER)   DEFENDANTS/RESPONDENTS

3.   ACCESS BANK PLC                                            

4.   ASSET MANAGEMENT COMPANY

OF NIGERIA                                                                     DEFENDANT/APPLICANT

 

REPRESENTATION

Esq. for the Claimant

Esq. for the 1st and 2nd Defendants

Esq. for the 3rd Defendant

Esq. for the 4th Defendant

 

RULING

1.   INTRODUCTION

2.   This is the ruling of the Court on an application brought by way of Motion on Notice filed on 17.07.2023 pursuant to relevant laws, rules of Court and under the inherent jurisdiction of the Honourable Court by the 4th Defendant/Applicant seeking the following:

 

a.      AN ORDER OF THIS Honourable Court striking out the name of the 4th Defendant/Applicant from this suit for want of requisite jurisdiction.

 

3.   The second prayer is the omnibus prayer. The grounds upon which the application is brought are as contained on the face of the motion paper. The application is supported by a six paragraph affidavit deposed to by one Markson Ubong Emem, designated as a Litigation Officer in the Law Firm of representing the 4th Defendant. The Applicant raised three issues for determination in their written address, to wit:

 

a.      Whether this Honourable Court ought not strike out the name of the 4th Defendant/Applicant from this suit as presently constituted; the Claimant having failed to comply with the mandatory statutory requirement of serving the 4th Defendant a pre-action notice before instituting this action/joining the 4th Defendant in this suit as stipulated under section 43(2) of the AMCON Amendment Act 2019.

b.      Whether the pleadings of the Claimant herein, disclose a reasonable cause of action against the 4th Defendant.

c.      Whether the 4th Defendant is a necessary party for the just determination of this suit.

 

4.   On issue one, Learned Applicant’s Counsel submits that service of pre-action is a requisite precondition that is mandatory, cannot be waived and must be fulfilled as prescribed by law – Mainstreet Bank Registrars Limited v Evukowhiroro Eleyeme Promise (2016) LPELR-40572(CA). That the Claimant herein failed to fulfill this condition hence this Honourable Court is robbed of its jurisdiction to entertain this suit against the 4th Defendant. On the second issue, learned Counsel argues that in determining whether an action discloses a cause of action or reasonable cause of action in any given circumstances, recourse would be made to the pleadings filed by the Claimant – Daily Times (Nig) PLC & Anor v Arum (2021) LPELR-56893(CA), Adeyemi v Opetyori (1976) 9-10 SC 31. That a careful look at the Claimant’s amended Statement of Material Facts and the reliefs sought therein and other pleadings of the Claimant show no omission nor wrong or negligence on the part of the 4th Defendant on the alleged wrong or default in payment of the Claimant’s gratuity and pension being claimed by the Claimant in this suit. Furthermore, the 4th Defendant is not privy to the relationship between the Claimant and the 1st Defendant and ought not to be sued nor joined at all as a party in this suit.

 

5.   On the third issue whether the 4th Defendant is a necessary party for the just determination of this suit, the learned Claimant’s Counsel commends the case of Ejigbo Local Government & Ors v Adepegba & Ors (2019) LPELR-48060(CA) where in determining a necessary party, the Court held that “Necessary parties are persons against whom a complaint is made and in whose absence the fundamental question in the action cannot be effectually and completely settled or determined. That in the present circumstances of this case, the 1st Defendant being under receivership, and the 2nd Defendant having been appointed by the order of Court as a Receiver to the assets of the 1st Defendant is a proper Defendant before the Court. That the roles and duties of the 2nd Defendant being a Receiver to the assets of the 1st Defendant Company appointed by the law Court, is strictly regulated by the Court and the applicable enactments. That the 4th Defendant has no degree of control over the way and manner the 2nd Defendant would carry out his statutory role as provided under Section 552(2) of the CAMA Act 2020. Learned Applicant’s Counsel urged the Court to resolve the issues for determination in favour of the 4th Defendant and grant the prayer sought in the application.

 

6.   The Claimant/Respondent in opposition to the instant application filed a 13 paragraph Counter-Affidavit deposed to by one Ibrahim Lawal, designated as a Litigation Clerk in the Law Firm representing the Claimant/Respondent. In his written address, the Claimant/Respondent formulated these issues for determination, to wit:

 

a.      Whether the Claimant has complied with the mandatory statutory requirement of serving the 4th Defendant a ninety (90) days Pre-Action Notice before instituting this action/joining the 4th Defendant in this suit as stipulated under section 43(2) of the AMCON Act 2010 as amended 2019; and the Honourable Court ought not to strike out the name of the 4th Defendant.

b.      Whether the pleadings of the Claimant herein, disclose a reasonable cause of action against the 4th Defendant.

c.      Whether the 4th Defendant is a necessary party for the just determination of this suit.

 

7.   On issue one Learned Claimant/Respondent’s Counsel argued that the Claimant has complied with the said provision by issuing a pre-action notice ninety (90) days before joining the 4th Defendant and instituting this action. That the 4th Defendant was served with the pre-action notice dated 16.05.2022 on 20.05.2022, the Motion for Joinder was filed 21.11.2022 and was granted by the Honourable Court 15.02.2023, giving the 4th Defendant more than 155 days’ notice. He contended that the onus is on the Claimant to satisfy the Court that a pre-action notice and other preconditions for the institution of a suit were fulfilled - Ogene v Ogene (2008) 2 NWLR (Pt. 1070) 29 (pp. 188-189, paras. D-A) CA.

 

8.   On issue 2, it is the learned Counsel’s argument that a thorough perusal of the Claimant’s pleadings will show that the 4th Defendant has taken over the affairs of the 1st Defendant; is in charge of all the assets of the 1st Defendant and statutorily empowered to settle all debts of the 1st Defendant. Thus the only Party a successful action can lie against will be the Party in charge of the affairs of the 1st Defendant. Moreover, contrary to the position of the 4th Defendant that the Court appointed the 2nd Defendant, it is the 4th Defendant who appointed the 2nd Defendant as Receiver over the 1st Defendant pursuant to powers granted the 4th Defendant by Section 48(1) of the AMCON Act as amended 2019. That the 2nd Defendant has also admitted and confirmed that it was appointed by the 4th Defendant and that no payments can be made to creditors without the authority of the 4th Defendant. That the facts of this case show that the Claimant has a right to claim the reliefs sought from the 4th Defendant, and referred the Court to the case of Ekeng v Polaris Bank Ltd (2021) 2 NWLR (Pt. 1761) 395 CA. He submitted that from the above the Claimant has disclosed reasonable cause of action against the 4th Defendant and that the Honourable Court has jurisdiction over this matter.

 

9.   On whether the 4th Defendant is a necessary party for the just determination of this suit, learned Claimant’s Counsel states that a necessary party is one that has a right and interest in the suit. Furthermore, a necessary party is a party that must be bound by the decisions of the Honourable Court. That from the facts of this case, it is clear that the 4th Defendant has a very significant interest in the 1st Defendant, and if judgment is entered in favour of the Claimant, the 4th Defendant is the only party that can authorize payments of the debt to the 1st Defendant. That for the Claimant to succeed in this matter in respect of getting payment, and for the sake of substantial justice the 4th Defendant is a necessary party as it has controlling interests in the subject matter of the suit, and this interest will be affected by any decision taken by the Honourable Court - K. Maertsch v Bisiwa (2014) 10 NWLR (Pt.1416) 489. Learned Claimant Counsel submits that the 4th Defendant has an interest in the subject matter of this suit and will be greatly affected with the final outcome of this matter and therefore is a necessary party to this suit.

 

10.   RESOLUTION     

11.   Having regard to the facts and circumstances of this suit, the processes filed in support and in opposition to the grant of the instant application, the Court distils the issue below for determination, to wit:

 

a.      Given the circumstances of this suit, is the instant application meritorious and such that ought to be granted.

 

12.   It is the law that pre-action notice is usually issued by an intending Plaintiff or Claimant who believes that his legal rights have been infringed by a Defendant to notify such Defendant of his intention to seek legal redress against such Defendant before a Court of law unless the Defendant settles the Plaintiff’s claims against him. See NICON Insurance Plc v Anagba Ventures Ltd (2018) LPELR-46672 (CA) where it was held inter alia: “The rationale behind pre-action notice is to enable the Defendant know in advance the expected action and if possible, find an amicable means of settlement without recourse to litigation… So therefore where an enabling statute provides for pre-action notice, unless it is waived by the party entitled thereto, it must be complied with before an action can be said to have been properly instituted. Failure to so comply renders the action ineffective and liable to be struck out. In effect, the jurisdiction of the Court is put on hold pending compliance.”

 

13.   Jurisdiction is the lifeblood of any adjudicatory proceedings, without jurisdiction no matter how well a proceeding might have been conducted, such proceedings would amount to a nullity – SPDCN Ltd v Anaro (2015) 12 NWLR (Pt. 1472) 122, Obijiaku v Obijiaku (2022) 17 NWLR (Pt. 1859) 377. The jurisdiction of a Court is conferred by Constitutional provisions and its enabling Act and not by ingenious arguments or submissions of Counsel. See KSIEC v PDP (2005) 6 NWLR (Pt. 920) 25, Okarika v Samuel (2013) 7 NWLR (Pt. 1352) 19, Sulaiman v FRN (2020) 18 NWLR (Pt. 1755) 180 at 207, B. A Court in determining whether or not it has jurisdiction will look closely at the Claimant’s originating processes and pleadings, that is, the Claimant’s Writ of Summons and Statement of Claims and not the pleadings of the Defendants. See Seamarine Int’l Ltd v Ayetoro Bay Agency (2016) 4 NWLR (Pt. 1502) 313.

 

14.   The 4th Defendant/Applicant contends that the Claimant has not complied with the mandatory statutory requirement of serving the 4th Defendant a ninety (90) days Pre-Action Notice before instituting this action against the 4th Defendant as stipulated by Section 43(2) of the AMCON Act 2010 as amended 2019. The Claimant/Respondent on the other hand, contends that the said ninety (90) days Pre-Action Notice was given to the 4th Defendant/Applicant as evidenced by letter dated 16.05.2022 which was received by the 4th Defendant 20.05.2022. It is pertinent at this point to set out the provision of Section 43 (2) of the AMCON Act, 2010 as amended 2019. The relevant provision reads as follows:

 

15.   “(a). An action shall not be brought or commenced against the Corporation until after the expiration of 90 days’ notice in writing to the Corporation giving details of the alleged wrong date and remedy sought. (b). If after the expiration of the 90 days’ notice stated in subsection (2) the Corporation has not responded, the party concerned may issue a Writ or other Originating process against the Corporation provided always that action shall not be commenced or maintained against the Corporation or any of its shareholders, officers or directors for anything done or intended to be done in good faith in the execution of duties, powers and obligations imposed on the Corporation or any of its shareholders or officers”.

 

16.   The Applicant’s Counsel anchors his submission that this suit was instituted prior to it being served with the statutorily required pre-action notice thus making the suit incompetent. Counsel however does not deny that the notice issued and served on the 4th Defendant at the instance of the Claimant/Respondent was well above ninety (90) days as required by its enabling Act. Counsel also does not deny that the 4th Defendant was made a party to the instant suit by an order of this Honourable Court after a 90days pre-action notice though at the instance of the Claimant. It is the law that facts admitted need no further proof. What appears to be an issue in contention is whether or not the notice issued after the institution of this action is valid, or the order of Court joining the 4th Defendant as a party was made without jurisdiction.

 

17.   There is before this Honourable Court letter written by the Claimant’s Counsel dated 16.05.2022 but served on the 4th Defendant/Applicant 20.05.2022. The Motion for Joinder joining the 4th Defendant to the suit was filed 21.11.2022 and was granted by the Honourable Court 15.02.2023. In the case of Fiogret Ltd v AMCON & Ors (2022) LPELR-57714(CA), it was held thus, “A proper pre-action notice has been held to be a letter usually given by the intending Plaintiff's Solicitor to the prospective Defendant, giving him notice of intention to institute legal proceedings against him for whatever cause of action and giving specific period of time to remedy same failing which legal proceedings would be instituted after the expiration of such period. See Nwadike v A.S.L.G. (2008) 16 NWLR (Pt. 1112) p.203 at 220 paras. D-E and Ntiero v NPA (2008) 10 NWLR (Pt. 1094)”. In the instant suit, the letter (pre-action notice) was written by the Claimant Counsel and served on the Applicant 20.05.2022 while the Motion for Joinder was filed 21.11.2022 giving over clear 100days for the 4th Defendant/Applicant to respond if it wanted to settle the Claimant’s claim outside the Court.

 

18.   The whole essence of a pre-action notice is to lay bare to an intending Defendant by the notice required under a statute the nature of action the intending Plaintiff/Claimant has against the proposed Defendant. The intending Claimant must comply with time and period stipulated by the statute between the service and commencement of the action. The required notice is designed to afford the parties the opportunity or likelihood of settling the matter in dispute without recourse to litigation – AMCON v Capital Oil & Gas Industries Ltd (2019) LPELR-48065 (CA). For reasons unknown to the Court, the 4th Defendant/Applicant did not respond and was subsequently joined as a party to the suit. In the view of this Honourable Court, the letter written by the Claimant’s Counsel dated 16.05.2022 and served on the 4th Defendant/Applicant 20.05.2022 is a proper pre-action notice, and this Honourable Court is vested with jurisdiction to hear this matter. For the above reasons, this issue is resolved against the 4th Defendant/Applicant. I so hold.

 

19.   The Applicant also contends that the pleadings of the Claimant herein do not disclose a reasonable cause of action against the 4th Defendant. It has been held that a reasonable cause of action simply refers to series of facts presented before the Court by a litigant that raises triable issues with chances of success. See Fidelity Bank v Marcity Chemical Industries Ltd & Ors (2022) LPELR-56886(SC) where the Supreme Court had this to say: “The phrase ‘reasonable cause of action’ means a cause of action with some chances of success when only the allegations in the Statement of Claim are considered. If when those allegations are examined, it is found that the cause of action is bound to fail, then the suit ought to be struck out. See Barbus & Co. (Nig) Ltd & Anor v Okafor-Udeji (2018) LPELR-44501(SC), Rinco Construction Co. Ltd v Veepee Industries Ltd & Anor (2005) LPELR-2949(SC), Ibrahim v Osim (1988) LPELR-1403(SC). In determining whether or not a Statement of Claim discloses a reasonable cause of action, it is irrelevant to consider the weakness of the Claimant’s claims. What is important is to examine the averments in the pleadings and see if they raise some questions fit to be decided by a Judge. See Barbus & Co. (Nig) Ltd & Anor v Okafor-Udeji (supra), Dada & Ors v Ogunsanya & Anor (1992) LPELR-908(SC).

 

20.   The Claimant in his Statement of Facts made reference to the fact that pursuant to Section 48(1) of the AMCON Act 2010, as amended 2019, the Applicant the 4th Defendant has taken over the affairs of the 1st Defendant, and is in charge of all the assets of the 1st Defendant and statutorily empowered to settle all debts of the 1st Defendant. That the only Party a successful action can lie against will be the Party in charge of the affairs of the 1st Defendant which is the Applicant herein. Interestingly, the 2nd Defendant has also admitted and confirmed that it was appointed by the 4th Defendant and that no payments can be made to creditors without the authority of the 4th Defendant. In the light of the circumstances of this case, the Court is of the view that the Claimant has disclosed a reasonable cause of action against the Applicant, thus this issue is resolved in favour of the Claimant/Respondent.

 

21.   Although the Applicant’s Counsel contends that the 4th Defendant is not a necessary party for the just determination of this suit, it is the law that a necessary party is one that has a right and interest in the suit. Furthermore, a necessary party is a party that must be bound by the decisions of the Honourable Court. In the instant case, it is clear that the 4th Defendant has interest in the 1st Defendant, and if judgment is entered in favour of the Claimant, the 4th Defendant by its enabling Act appears to be the only party that can authorize payments of the debt of the 1st Defendant.

 

22.   In law, a party does not have to be a necessary party for it to be made part of a suit, it could be a proper party or even a nominal party so long as it has interest and its presence is required for the just determination of the matter before the Court or it would one way or the other be affected by the decision of the Court it could be made a party to the suit. The Court is minded to agree with the Claimant that the 4th Defendant is a necessary party as it has controlling interests in the subject matter of the suit, and this interest will be affected by any decision taken by the Honourable Court. I am therefore of the humble view that the Applicant in the instant case given the circumstances of this suit is a proper party, who, though not actually interested in the claim, is joined as a party for good reasons (which may be tied to enforcement of Court orders). See Chief of Army Staff v Lawal (2012) 10 NWLR (Pt. 1307) 62. The Applicant though not actually interested in all the Claimant’s claims has been joined for good reasons and is thus a proper party. I so find and hold. On the basis of the above, this issue is resolved against the 4th Defendant/Applicant.

 

23.   On the whole, the Court finds no merit in the instant application, thus, the 4th Defendant/Applicant’s objection is overruled and discountenanced. The 4th Defendant/Applicant’s application fails and the issue for determination is resolved in the negative in favour of the Claimant/Respondent. I so hold. Case to be set down for speedy trial.

 

24.   Ruling is accordingly entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge