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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE, A.N UBAKA

 

DATED 23rd MARCH, 2026 SUIT NO: NICN/LA/47/2023

 

OLIVE OBI                                                                                     CLAIMANT

 

 

AND

 

  1. THE INCORPORATED TRUSTEES

OF OCEAN GARDEN ESTATE LAGOS STATE

RESIDENTS ASSOCIATION

 

  1. MR CHRIS IFEORAH (ACTING CHAIRMAN)       DEFENDANTS

                                                                                    

REPRESENTATION       

A. Ahmed for the claimant

No Legal representation for the Defendants.

 RULING

By a general form of complaint filed by the claimant on the 9th February, 2023 against the Defendants seeking the following reliefs:

 

  1. A declaration that the claimant was unjustifiably suspended from her duties by the defendants.

 

  1. A declaration that the 2nd defendant violated the rights of the claimant to dignify in the shabby manner of delivery of letter of suspension dated 16th of January 2023 to the claimant.

 

  1. A declaration that the claimant is a staff of the 1st defendant having not been properly indicted and her employment formally terminated.

 

  1. N5, 000, 000 Special damages against the defendants jointly and severally for the psychological injuries caused to the claimant.

 

  1. N1, 000, 000 General damages.  

 

The defendants/applicants filed a Notice of Preliminary Objection brought pursuant to Order 17 Rule 1 and Order 18 Rule 2 of the National Industrial Court (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the honourable Court praying for the following reliefs:

 

  1. An order dismissing this suit for want of jurisdiction
  2. And for such further orders as this honourable court may deem fit to make in the circumstances of this suit.

 

Grounds for the application:

 

  1. The claimant’s action is academic
  2. The 2nd defendant is not a proper party to this suit and cannot be sued for purported actions carried out by the 1st defendant who has a distinct legal personality.
  3. Therefore, this honourable court’s jurisdiction has not been activated.

In support of the Preliminary Objection is 11 paragraph affidavit deposed to by Mr. Chris Ifeorah; attached to the preliminary objection is a written address wherein counsel for the defendants/applicants formulated two issues for determination:

 

  1. Whether the 2nd defendant is not a separate personality distinct from the 1st defendant causing the 2nd defendant to be an improper party to this suit liable to be struck out.

 

  1. Whether in the circumstance of this case the respondent’s claim is not an academic exercise robbing this court of jurisdiction.

 

It is the defendants/applicants’ counsel submission on issue one (1) that the Incorporated Trustees is a separate and distinct legal personality from its members or trustees; that the 2nd defendant, Mr. Chris Ifeorah has no bearing or connection to the instant case and ought to be struck out and dismissed against him. He cited the case of Okatta v The Registered Trustees O. S. C (2008) 13 NWLR (Pt 1105) 632 and urged the honourable court to so hold.

 

On issue two (2); counsel submitted that the reliefs sought by the claimant against the defendants in the instant suit have been overtaken by events and therefore have become academic as there are no live issues to be determined by the honourable court; that by virtue of exhibit OG1, the claimant was no longer an employee of the 1st defendant when the claimant filed the instant suit asking the honourable court to determine a suspension exercised fully and effectually completed before the termination of the claimant’s employment, a right which is sacred to the employer. He cited the case of Angadi v PDP (2018) 15 NWLR (pt 1641) 1 and urged the honourable court to so hold and to dismiss the instant suit with a cost of N1, 000, 000 against the claimant.    

 

In response to the Defendant/Applicants’ Notice on Preliminary Objection, the Claimant/Respondent filed 6-paragraph counter affidavit on 17th December, 2024 deposed to by Olive Obi, the clamant herein. Accompanying the counter affidavit is a written address wherein counsel for the claimant/respondent framed a sole issue for the court determination:

 

Whether the honourable court can grant this application in the circumstances of this matter.

 

It is the claimant/respondent’s counsel submission on the sole issue that by virtue of the Order 9 rule and 4 of the National Industrial Court Rules (Civil Procedure) Rules 2017 the defendants/applicants have failed to file their memorandum of Appearance and defence to the instant suit but rather filed a hollow Notice of Preliminary Objection two (2) years after service of the Originating process. He urged the honourable court to dismiss the instant application.   

 

 

I have carefully considered the processes filed in this case and the submissions of counsel to parties. The question is whether this has become an academic exercise as the claimant’s employment has been terminated and secondly whether the second defendant is an improper person to this suit. The position of the law is that it is the statement of claim or statement of facts, as in this case that will be examined to determine the cause of action of a claimant. If therefore the court examines a pleading and finds the allegation therein showing the existence of a controversy capable of leading to a grant of relief, that pleading cannot be said not to disclose a reasonable cause of action. See Iwok & Ors v INEC & Ors (2022) LPELR– 58805 9 (CA), Ayodele Olugbenga & Co v FBC Trust & Securities (2023) LPELR -60764 (CA). 

 

The term cause of action has been defined in Hado Nigeria Ltd & Anor v Chrisbrown Ltd & Anor (2013) LPELR-21171 (CA) as the cause of action which, in law has some chances of success and which sets out the legal rights of the plaintiff and the obligations of the defendant. It is also an aggregate of facts which would be necessary for the plaintiff to prove, in order for judgment to be given in his favour. 

 

At the stage of inquiry, and as pertains the issue presently at stake, the court is enjoined to and can only look at the originating processes of the claimant - nothing else. And in considering the originating processes, the aim is to ascertain what the actual case or cause of action of the claimant is; for if the case or cause of action falls outside the jurisdiction of the court, then the court cannot be said to have jurisdiction over it. In Adetayo & Ors v Ademola & Ors (2010) LPELR -155 (SC)

 

The law is settled that the question of jurisdiction strikes at the root of any cause or matter and consequently raises the issue of competence of the court to adjudicate in the particular proceedings. Therefore, any defect in competence is fatal as such proceedings become null and void no matter how well conducted and decided the proceedings have been.

 

The issue before the court is whether the action as filed has not been overtaken by events as the claimant is no longer an employee of the 1st defendant when the claimant filed the suit. The argument of the defendant is having to determine a suspension exercise fully completed is a right which is sacred to the employer. I have looked at the following paragraph and is ‘instructive’

 

(8) The 2nd defendant instructed the security men at the gate to prevent the claimant from entering the Estate. The 2nd defendant also stopped the payment of the claimant’s salary for December 2022 even when the claimant has not been indicted or found guilty of any wrong doing in the discharge of her duties. 

 

The reliefs claimed by the claimant which have been reproduced at the start of this Ruling deal mainly with suspension of the claimant and in paragraph 8 of the statement of fact the need to pay her outstanding salary. Given those reliefs and the statement of claim of the claimant along with the accompanying documents, can it be said that the suit is merely an academic exercise which has robbed this court of jurisdiction?  I do not agree with the defendant’s counsel that this is an academic exercise which robs the court of jurisdiction on the claim of the claimant.  It is only when a question before the court is entirely academic, speculative or hypothetical that it can be referred as academic. See Alli v Alesinloye (2000) 4 SCNJ 264. A careful look at paragraphs 5, 6, 7, and 8 of the statement of facts reveal that the claimant was employed by the 1st defendant before she was suspended on the 16th of January 2023 and stopped the payment of her salary before the suspension.  A cause of action is the entire set of circumstances giving rise to an enforceable claim. See INEC v ADP & Anor (2023) LPELR – 603339 CA). The statement of facts has established that there is a reasonable cause of action.

 

On the 2nd issue on whether the 2nd defendant has been a proper party to the suit. The learned counsel to the defendant submitted that Mr. Chris Ifeorah and the Incorporated Trustees of Ocean Garden Estate is a separate and distinct legal personality from its members or trustees; that the 2nd defendant is not legally responsible for each other’s acts, duties, liabilities and obligations. The reply of the claimant is that a community reading of all the exhibits associated with the defendants shows that the 1st defendant and the 2nd defendant are one and the same body; therefore the 2nd defendant is bound by the terms and conditions of employment of the claimant. See Waziri v Shewaza & Ors (2017) LPELR -44015 (CA) on how to determine whether a party is a proper defendant to the suit. The liability of each party in the suit would be determined by the pleadings and evidence led by the plaintiff in the light of applicable laws. Therefore, in order to determine if a party is a proper party and a defendant to the suit, the court needs to examine the claim of the plaintiff before the court.  See paragraph 3 of the statement of facts.

 

The 2nd defendant is not a juristic personality and therefore the court lacks jurisdiction. The defendant argued that the 2nd defendant is merely an officer of the 1st defendant and has no bearing or connection to this case. A necessary party is someone whose presence is essential for the effectual and complete determination of the claim before the court. See Benson Akintola v Babajide Akinwunmi Farinde (1994) 7-8 SCNJ (pt 11)284. The 2nd defendant is not a necessary party. Having come to the conclusion that the 2nd defendant is not a necessary party, the name of the 2nd defendant is accordingly struck off. 

 

On the application by the claimant/Respondent to dismiss the instant application as the defendant did not enter appearance relying on Order 9 Rule 1 (4) of the National Industrial Court Rules 2017 which provides thus:

 

Where the defendant fails to file a defense or memorandum of appearance or any other process after being in default, such defendant or respondent shall pay further penalty as stipulated in Order 57 rule 5 of these Rules.

 

On the effect of failure to file memorandum of appearance, See Mr. Adelani Adewoyin v The Executive Governor, Osun State & Ors (2011) LPELR -8814 (CA).   The significance of entering an appearance by a defendant, as provided by the rules of court, is important and cannot be over- emphasized. The consequences of failure to enter an appearance by a defendant to a writ of summons or an originating process include a plaintiff having a judgment against a defaulting defendant and or the defendant being denied right to be heard.

 

In the circumstance having resolved the two issues for determination, the name of the 2nd defendant is accordingly struck out. The case now proceeds to definite hearing.

 

I make no order as to costs.

 

Ruling is hereby entered accordingly. 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE