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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HISLORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED: 18TH MARCH, 2022                           NICN/ABJ/235/2021

                                                                  

BETWEEN

MISS. MILDRED BEKELE         ………………………………        CLAIMANT

 

AND

1.     IMANI BEAUTY EMPIRE

2.     MISS IMAOBONG ETUK               …………..………..                     DEFENDANTS

 

 

REPRESENTATION:

A. H. ARIBOSOU for the Claimant

CHUKWUEMEKA ORIKU N. for the Defendants

 

RULING

 

1.                  Claimant by way of a complaint filed on the 6th September 2021 institute an action against the defendants seeking the following reliefs:

 

1.   The terms of the contract are onerous and lopsided against the claimant is       therefore null and void, and cannot be enforced.

 

2.   The claimant is entitled to the salaries for the period she worked for the defendant.

 

3.   The claimant is entitled to the refund of N10, 000.00 (Ten Thousand Naira)       collected by the defendant as consultation fees.

 

4.   The claimant is entitled to the sum of N12, 000,000.00 (Twelve Million Naira)       being damages for false imprisonment.

 

5.   The claimant is entitled to the sum of N3, 000, 00 being damages for continuous       harassment, mental and physical torture owing to the incessant harassment of the       claimant by phone calls and messages in their attempt to collect an unlawful sum       from the claimant.

 

6.   The defendants have jointly or severally breached the fundamental right of the       claimant as provided in sections 34 (a) (c) and 35(1).

 

CLAIMANT’S CASE

 

2.                 The claimant is an employee of the 1st defendant and the 2nd defendant is the registered owner or sole manager of the 1st defendant. The 1st defendant carry out the business of beautification and spa services in the name and style of Imani Beauty Empire and employed the claimant on the 24th of June 2021. The claimant resumed duty on the 28th of June 2021 on the condition that the resumption of work time of the claimant is 8.30 a.m., while her closing time is 6 p.m. The claimant was employed as a beautician and was placed on probation for one month at a salary of N50, 000.00 (Fifty Thousand Naira) with a clause that if her job performance is below expectation and she is not confirmed after one month which is a probation period and the 1st defendant is desirous to release her, she will be paid only (Twenty-Five Thousand Naira) for the one month so worked. At the time of her employment, the defendants made her sign a document requiring the claimant to make some undertakings which included

 

3.                  She resumed duty and worked for one month and 7 days without being paid her salary, as at the end of July 2021 the defendants refused to pay the claimant her salary for the month of July 2021.She demanded her salary at the end of the month of July 2021 the defendants refused to pay the claimant her salary. The 2nddefendant informed her that she would no longer retain her services, as she performed below expectation during the probation but refused to release her. And she demanded her salary and the 2nd defendant refused to pay her the N25, 000.00 which the claimant was supposed to be paid.

 

4.                  When it became obvious that the defendant was not ready to pay her salary and also the salary of one Miss Faith Oche who is the receptionist of the defendant, she and Miss Faith who was planning her birthday party and had no money for makeup.  The ymuted the idea that in consideration for their unpaid salaries, the claimant should beautify Miss Faith with the products of the defendant and then deduct it from their salaries.  She and Miss Faith executed their plan using the 1st Defendant’s product and decided to inform the 2nd defendant. Before they could inform the 2nd defendant, the 2nd defendant discovered it herself and summoned her and Miss Faith to explain why they used the 1st defendant product without payment.  She and Miss Faith told the 2nd defendant to deduct it from their outstanding salaries. The 1st defendant instead told them that they were not entitled to any salaries and they should pay her N35,000.00 for use of her product and N10,000.00 for consultation. The 2nd defendant told them that they will not leave the company’s premises without paying the N45, 000.00 and threatened that she will deal with them if they should move an inch.

 

5.                  They pleaded with the 2nd defendant to let them go so will give her the money the next day but the 2nd defendant refused to allow them to leave. Despite the claimant informing the 2nd defendant that her glasses with her are bad and she cannot drive in the night. When it was about 8:45 pm and it became obvious that the 2nd defendant would not allow them to leave, she called her friend to transfer the said to the 2nd defendant for her and her colleague’s freedom.

 

6.                  On the 6th of August 2021, she went back to inform the 2nd defendant that she can no longer work with the 1st defendant. The 2nd defendant infuriated by her exit instructed her Legal Counsel to inform the claimant that she should pay the sum of N550,000.00 for breach of covenant and continued to harass the claimant. The claimant ignored the counsel and the 2nd defendant’s call to negotiate how much she would pay for breach of the terms.  The 2nd defendant also continued to threaten the claimant through her agents and even called the claimant’s guarantors asking them to come and pay the penalty. The 2nd defendant on observing that none of the Claimant guarantors was ready to pay her the stated sum or negotiate with her reported a criminal case against the claimant at the Utako Police Station and they have asked the claimant guarantor to produce the claimant.

 

7.                 NOTICE OF PRELIMINARY OBJECTION

 

8.                  Defendants filed a Notice of Preliminary Objection dated 17th September 2021 where they raised the following objection:

 

That this honourable court lacks jurisdiction to hear and determine the claimant’s action as presently constituted for being incompetent.

 

On the following Grounds:

 

1.      The claimant has no locus standi to commence or maintain this action.

2.      That this action is improperly constituted as regards the parties — that the within named party sued as the 1st defendant is not a juristic person, it is a business name and to this extent unknown to law.

3.      That the action has not disclosed any reasonable or cognizable cause of action.

4.      That the action is an abuse of the court process.

 

Seeking the following reliefs;

 

1.   AN ORDER dismissing or striking out the suit.

 

2.   AND such order or further orders as the Honourable Court may deem fit to make       in the circumstances of this case.

 

WRITTEN ADDRESS IN SUPPORT OF THE PRELIMINARY OBJECTION

 

9.                  Defendants raised a sole issue for determination:

 

Whether this Honourable court has the jurisdiction to hear and determine the claimant’s suit as presently constituted.

 

ARGUMENT

 

10.             Counsel in arguing the objection relied on all the documents filed by the claimant in this case, particularly the averment in the statement of claim and all the documents before the court.

 

11.             Counsel submitted that jurisdiction is so fundamental, it is extrinsic to adjudication and proceedings, no matter how well conducted, once the court lacks jurisdiction, is to no avail. MADUKOLU V. NKEMDILIM (1962)2 SCNLR341. Counsel state that for a court to decipher whether or not she has jurisdiction, the court should look at the totality of the claim of the claimant. ADEYEMI V. OPEYORI (1976) 9-10 SC 32; UBN PLC V. INTEGRATED TIMBER AND PLYWOOD PRODUCES LTD (2000) 12 NWLR (PT. 680) 99 @ 110.

 

12.             Counsel submitted that a court will lack jurisdiction where: it is improperly constituted as to the number or qualification of the numbers or when one or more members is disqualified for one reason or the other; When the subject matter is not within the jurisdiction of the court; Where there are features in the case which prevents the court from exercising jurisdiction or; When the case was not initiated by due process of law or upon the non-fulfillment of a condition precedent.

 

13.             Counsel argued that the within named 1st defendant is a non-juristic person as it is a business name. He submitted that it is only a juristic person that can sue and be sued. And the fact that issue of jurisdiction cannot be waived by the parties or court, the competence of a suit vis-ã-vis power of the court to adjudicate upon the matter is a legal and constitutional prerequisite. And the consequence of a finding that there is an abuse of court process by a party in litigation is to strike out or dismiss the offending process. FGN V. SHOBU (2014) 4 NWLR (PT.1396) 45; EROKORO V. GOVT. OF CROSS RIVER STATE (1991) 4 NWLR (PART 1850) 322; ANYADUBA V. NRTC LTD (1990) 1 NWLR (PT.129) 397.

 

AFFIDAVIT IN SUPPORT THE CLAIMANT ARGUMENT

 

14.             Claimant an affidavit dated 11th October 2021 in support of an argument against Defendants Preliminary Objection

 

15.            Claimant filed a 6 paragraph Affidavit deposed to by CHARITY ONOSIGHO

 

16.             The Deponent stated that she is a legal secretary in the Law firm representing the Claimant and by virtue is conversant with the facts of the case. He also has the consent of her employer and the claimant to depose to the affidavit.

 

17.             The deponent stated that one A.H. Arubisou the principal counsel of her firm informed her that prior to the time he prepared the process and filed the same he did a due diligent search and discovered that the 1st defendant is a registered company. The 1st defendant was registered on the 22nd of December 2017 IMANI BEAUTY EMPIRE with the Corporate Affairs Commission and has its registered address at is No. 1 Ekim Itam, off Ekim Junction, Uyo Akwa Ibom State with the Corporate Registration Number2565092.And that the Counsel to the Defendants while making her application did not attach an affidavit to show that IMANI BEAUTY EMPIRE is not a registered company.

 

CLAIMANT ARGUMENT IN REPLY TO THE PRELIMINARY OBJECTION

 

18.             Counsel raised three issues for determination:

 

Whether the notice of preliminary objection filed by the defendants/applicants is not defective when there is no affidavit attached deposing to the fact that IMANI BEAUTY EMPIRE not registered?

 

Whether the business entity is registered and is a corporate entity or an artificial person under the law?

 

Whether a misjoinder of a party would lead to this court being robbed of its jurisdiction to entertain this matter?

 

19.             On the first issue, counsel submitted that going by the provisions of Order 17 Rule 3, 4, and 5 of the rules of the Honourable Courtnotice of preliminary objection is defective as the notice of preliminary objection is an application that must comply with the above rules. AZUDIBIA V INEC (2010) AFWLR (Pt. 505) 1689.

 

 

20.            On the second issue, counsel submitted that there is no evidence before this court that IMANI BEAUTY EMPIRE is not registered as the counsel address wherein he stated that it is not registered cannot take the place of evidence .AKANOH V NWABUISI & ORS (2015)6 CAR 22; PDP & ANOR V HON. PATRICK ASADU & ORS.

 

21.            Counsel submitted that learned counsel to the defendants owes the court, the parties to have check whether IMANI BEAUTY EMPIRE is registered or not before filing his notice of preliminary objection as counsels are enjoined to be wary of filing frivolous processes and waste the courts time as stated in the case of TAIWO V ADEGBORO (1997) 11 NWLR (Pt. 528) 224.

 

22.            On the third issue, counsel submitted that not conceding that IMANI BEAUTY EMPIRE is not registered but assuming it is not registered, the fact that it is not a legal person and cannot be sued would not warrant a counsel to file a notice of preliminary objection because preliminary objection puts a final nail to the coffin of a suit. NJC V AGUMAJU & ORS (20 15)4 CAR 353; PHARMACISTS COUNCIL OF NIGERIA V LAMLEX (PHARMACY) NIGERIA LTD& ORS (2018) 6 C.A.R 93 at 111.

 

23.             Counsel submitted that the 2nd defendant is existing and assuming IMANI BEAUTY EMPIRE is not a legal entity the 2nd defendant still has to answer as they are sued jointly and severally and the situation is therefore a case of misjoinder which will only give room for the striking out of the party erroneously sued and not terminate the suit and it cannot therefore rob this court of its constitutional jurisdiction as so stated by the learned counsel. It is therefore our submission that the idea of filing a preliminary objection is not inconsonant with the law. EMECHETA V OGUERI (1995) 5 NWLR (Pt 447) 227.

 

COURT DECISION

 

24.             Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises.

 

25.             The issue for determination in this suit to my mind is whether there is any merit to the defendant’s application.

 

26.            The question for determination being who is a juristic person; Categories of persons who can sue and be sued in law. UBER TECHNOLOGIES SERVICES NIG. LTD v. AJAYI (2020) LPELR-50807(CA).

A juristic person is an entity armed with the capacity to ventilate his/its complaints in judicio. Generally, it is only natural persons, human beings and artificial persons, such as body corporate/corporation, an artificial being which is invisible, intangible and exist only in the contemplation of the law, that are imbued with the capacity to sue and be sued in law Court. The jural units, which the law has cloaked with the garment of legal personality, are: human beings, incorporated companies, corporate sole with perpetual succession, trade unions, partnerships and friendly societies. No action can be commenced by or against any party except a natural person(s) save such a party has been accorded by a statute, expressly or impliedly, or by common, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. Where either of the parties is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out on account of want of legal personality, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (Pt. 927) 429;A. -G., Anambra State v. A.-G., Fed (2007) 12 NWLR (Pt. 1047) 4.

 

27.             Although I am aware of the legal position stated in the case of REPTICO S.A. GENEVA V. AFRIBANK (NIG.) PLC (2013) 14 NWLR (PT. 1373) 172 @ 176 S.C. where it was held that “the law recognizes two categories of persons who can sue and be sued in court. They are natural persons, with life, mind, brain and physical body, and other artificial persons or institutions having juristic personality.” A-G., FEDERATION V. A.N.P.P. (2003) 18 NWLR (PT. 851) 182 referred to.] (p. 207, paras. B-C).

 

28.            In the case of MAERSK LINE v. ADDIDE INVEST. LTD. (2002) LPELR-1811 (SC); (2002) 11 NWLR (PT. 778) 317 @ 322 HELD 1 ; - “A person who is made a party to an action either as a plaintiff or as a Defendant must be a legal person or, if not, a body vested by law with the power to sue or be sued. Thus, if it is successfully shown that a party to an action is not a legal person, that party, should be struck out of the suit, and if such a party was expressed to be the plaintiff, the action should be struck out.” AGBONMAGBE BANK LTD. v. GEN. MANAGER G.B. OLLIVANT LTD (1961) 1 ALL NLR 116.See also BODUNDE V. S.C.I. & C.S. LTD. (2013) 12 NWLR (PT. 1367) 197 @ 202-204 CA.

 

29.             However the above matters were not resolved in an Industrial court where the issues are not merely the contractual legalese and rights and wrongs of employers and employees but also and mainly the preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining.

 

30.            See the Supreme Court of India in NTF MILLS LTD V. THE 2ND PUNJAB TRIBUNAL, AIR 1957 SC 329, to the effect that –

“The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.”

 

31.             Now this need to ensure labour harmony and informal environment has given rise to some concepts not necessarily found in a regular High Court to wit this court has granted accorded legal audience to local branch units of unions, known not to be registered or juristic persons, See SENIOR STAFF ASSOCIATIONS OF NIGERIAN UNIVERSITIES Vs. FEDERAL GOVERNMENT OF NIGERIA [2008] 12 NLLR (Pt. 33) 407 and unregistered associations See NICN /LA/04/2012 ODUSOTE Vs. LAGOS STATE GOVERNMENT delivered on May 24th 2012 were not being denied access to this courts to maintain their suits.

 

32.             In fact in Odusote case the issue arose as to whether the claimants could institute the suit on behalf of an unregistered association, this court after reviewing the local and foreign authorities, held that the unregistered association could sue for in convenience of determining the case on its merits.

 

33.             The pronouncement of that court in that case is most apposite at this time.

“According the claimants recognition for purposes of this suit accords with the law and exigency of the moment. In any event, the legal recognitions is not so much as saying that thereby Medical Guild is a legal personality as understood by law, but it is meant to serve the sole purpose of affording the Court the opportunity of holding the parties answerable to their actions, legal or otherwise, in this sense, I will recognize the claimants as capable of suing for the convenience of determining, in the words of the Supreme Court of Punjab Tribunal “the ‘rights’ and ‘wrongs’ of the claims made” and as trust before this court in this matter” per Kanyip J.

 

34.             In order to hold the necessary parties accountable this Court has always accorded Ministries of Government Legal recognition and access to this court see the case of MHWUN & 4ORS Vs. FEDERAL MINISTRY OF HEALTH unreported SUIT NO. NICN/ABJ/238/2012 delivered on the 27th July 2013.

 

35.             Also see the case of HON. BARR.NNAMDI ELUWA &ORS Vs. UMUAHIA SOUTH LOCAL GOVERNMENT & ANOR unreported NICN/EN/120/2012delivered on 4th March 2013 where it was held ‘that bodies created under the constitution and duly conferred with statutory functions “are juristic persons even if not expressly so designated”.

 

36.             It also appropriate to note that the legal position is that institutions and public bodies are considered public officers, capable of being sued, see the cases of IBRAHIM Vs. JSC [1998] 14 NWLR (Pt. 584) 1  , FGN Vs. ZEBRA ENERGY LTD [2002] LPELR 3127 SC.

See also the RUFUS OKEREKE v. SUNDAY DIKE & ORS. (Supra) where it was held that whether a party can be sued is not only determined by the express words of a statute, it can also be implied, further submitted that any officer that can do anything which can result to injury to others can be sued.

 

37.            Also of note on this point is the case of SOLOMON OBOBA V CHIEF REGISRAR HIGH COURT DELTA STATE ORS (2011) LPELR-8783(CA) where the Court of Appeal had this to say “It is the law that legal personality of a non-natural person to sue or be sued can be express or implied from the statute creating it and can even be implied from the functions assigned to it by a statute”. See THOMAS v. LOCAL GOVERNMENT SERVICE BOARD (1965) 1 ALL NLR 168 at 170.FAWEHINMI V. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 604 - 609. ABIA STATE UNIVERSITY V. ANYAIBE (1996)3 NWLR (pt. 439) 646." Per NWOSU-IHEME (Ph. D), J.C.A. (P. 9, paras. E-G). See SUIT NO: NICN/UY/02/2016 ACADEMIC STAFF UNION OF POLYTECHINICS Vs. AKWA IBOM STATE POLYTECHINIC  & 2 ORS delivered 29th September 2016.

 

38.             And where necessary this court has suo moto ordered the alter ego of the public body/ institution be joined by order of court to a suit if, to the court, it would advance the cause of justice. See the case of HON. SAMUEL N. ANYAWU Vs. IMO STATE GOVERNMENT AND ORS unreported SUIT NO NICN/EN/68/2012delivered on 28th November 2008.

 

39.             From the foregoing I find no reason to depart for the practice of affording Ministries such as the 2nd Defendant legal recognition in this court in this case. Therefore, in the circumstances I find that the contention of the 2nd Defendants, being based solely on the ground that they, the1st Defendant is not a juristic person, in this court, has no merit See SUIT NO. NICN/CA/08/2015 MR. PAULINUS OWAN BEKOMSON Vs. CROSS RIVER STATE UNIVERSITY OF TECHNOLOGY, CALABAR & ANOR delivered14th July 2015, the claimant is well within his rights to bring this action against the 1st and 2nd Defendant in the manner which she has. And in that wise the only order that can be made in this case and in these circumstances is one dismissing the Application for lack of merit.

 

40.             This application is hereby struck out. I make no order as to cost.

 

41.             This is the Court’s Ruling and it is hereby entered accordingly.

 

 

 

 

……………………………

HON. JUSTICE E. N. AGBAKOBA

JUDGE, COURT 3, ABUJA