IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

 

 DATE: OCTOBER 24, 2024                                           

SUIT NO: NICN/ABJ/84/2023

 BETWEEN

   SOLOMON OMOAREOJE IMOOJE                                       CLAIMANT/RESPONDENT

     AND

              ECOBANK NIGERIA LIMITED                                        DEFENDANT/APPLICANT          

 

REPRESENTATION

Ekpeji Sani Muhammed for the Claimant.

H. K. Salami for the Defendant with S. A. Liman, K.I. Oghoghome.

 

                                                             RULING

Introduction

[1] The Claimant filed this Complaint against the Defendant on 29^th March 2023 together with the accompanying originating processes seeking the following:

(1) An Order compelling the defendant to forthwith pay the Claimant all his terminal entitlements as per his position as Deputy Manager as follows:

(a) 1 Month Salary in lieu of notice

(b) Gratuity

(c) Severance Pay

(d) 13^th Month Due

(2) The sum of N20,000,000 (Twenty Million Naira) as damages against the Defendant  for unfair and discriminatory labour treatment of the Claimant.

(3) The sum of N1,500,000 (One Million Five Hundred Thousand Naira) as cost of this suit.

(4) And For Such Orders that this Honourable Court may deem fit to make in the circumstances.

The Defendant entered a conditional appearance and on 11^th July 2023 filed its statement of defence and accompanying processes together with a Notice of Preliminary Objection dated 10^th June 2024.

Notice of Preliminary Objection

[2] The subject matter of this Ruling is the Notice of Preliminary Objection. It is brought pursuant to Order 15 Rule 1 and Order 17 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the inherent jurisdiction of the Court praying for the following:

1.      An Order dismissing and/strike out the instant suit for being a gross abuse of the process of the Honourable Court.

2.      And for such further orders or order as this Honourable Court may deem fit to make in the circumstances of this preliminary objection.

[3] The grounds upon which the Objection is brought are as follows:

 i. On 5^th July 2018, the Claimant herein filed a complaint at the National Industrial Court of Nigeria before Honourable Justice B. B. Kanyip PhD in Suit No NICN/ABJ/194/2018 – Solomon Omoareoje Imooje vs. Ecobank Nigeria Limited, challenging the termination of his employment by the Bank and seeking inter- alia a declaration that the purported termination of his employment with the Defendant via a letter dated 22^nd November 2012 was wrongful.

ii. On 17^th December 2020, judgment was entered in favour of the Claimant wherein the Court held inter alia that his termination was wrongful.

iii. In compliance with the judgment, the Bank paid the judgment sum of N1,412,404.46 (One Million, Four Hundred and Twelve Thousand, Four Hundred Four Naira, Forty-Six Kobo) (being the Claimant’s entitlements and the cost of the action combined) into the Claimant’s current account maintained with the Defendant, with Account Number 0022026652.

iv. Although the Bank paid the judgment sum into the Claimant’s account as ordered by the Court, the Claimant could not access the funds in the account due to his indebtedness to a subsidiary of the Defendant namely ETI Specialized Resolution Company Limited (‘ESRC’). The funds were moved to a memo account and the Claimant was advised of his terminal benefits and indebtedness to the Bank.

v. The Claimant applied for a loan in the sum of N4, 000,000.00 (Four Million Naira) from the Defendant sometime in June 2011, at an interest rate of 21% interest per annum. The loan sum was granted and thereafter disbursed by the Defendant on 15^th August 2011. The duration of the loan is for a period of 24 (Twenty-Four) months. The Claimant is yet to pay back the loan sum.

vi. The Claimant is still indebted to the Bank in the sum of N38, 697,526.71 (Thirty-Eight Million, Six Hundred and Ninety-Seven Thousand Five Hundred and Twenty-Six Naira, Seventy-One Kobo).

vii. The Defendant commenced a recovery action against the Claimant and subsequently joined ESRC, at the FCT High Court regarding the Claimant’s indebtedness in Suit No. CV/1525/2021 – Eco Bank Nigeria PLC & Anor. vs. Solomon Omoareoje Imooje & Anor.

viii. On 7^th July 2021, the Clamant served the Defendant with an Originating Summons in (Suit no NICN/ABJ/143/2021 - Solomon Omoareoje Imooje vs. Ecobank Nigeria Limited) seeking the interpretation of the judgment delivered on 17^th December 2020 in NICN/ABJ/194/2018.

ix. On 24^th March, 2022 the Honourable Court delivered its judgement wherein the Court stated that the Defendant cannot use the judgement sum as a means of satisfying the Claimant’s debt to the Bank. The Court therefore directed the Defendant to pay the sum of One Million, Four Hundred and Twelve Thousand, Four Hundred and Four Naira, Forty-Six Kobo (N1,412,404.46) in cash as well as the sum of Five Hundred Thousand Naira (N500,000.00) as general damages to the Claimant.

x. On 28^th October 2022, because the Defendant’s appeal required leave, the Defendant filed an application seeking leave of the Court of Appeal to Appeal against the judgment   of this Honourable Court   delivered on 24^th March 2022 along with an application for stay of execution of the judgment of the National Industrial Court of Nigeria (NICN) delivered by Hon. Justice Kanyip. 

xi. Despite the pendency of those applications before the Court of Appeal and even after being served with same and being represented by same Counsel, the Claimant on 29^th March 2023 filed the instant suit involving the same parties and on the same subject matter.

xii. The Claimant has acted mala fide, therefore abusing the judicial process of this Honourable Court.

xiii. This instant suit ought to be dismissal by this Honourable Court   for being an abuse of court process.

xiv. We urge your Lordship to dismiss the instant suit for being abusive of the process of this Honourable Court. 

[4] The Preliminary Objection is supported by an affidavit deposed to by Francis Dehinbo, Human Resources Business Partner in the Defendant to which is annexed exhibits SLA1 to SLA3C and a written address. In opposition, the Claimant filed a counter affidavit deposed to by Glory Odey, Litigation Secretary in the Law Firm of Justice Advocates on September 01, 2023 and a written address dated and filed on September 01, 2023. The Defendant filed a further affidavit on October 31, 2023 and a reply on points of law dated October 18, 2023 and filed on October 31, 2023.

 

Submissions of the Defendant/Applicant

[5] The Defendant submitted one issue for determination:

Whether the present suit as presently constituted amounts to an abuse of Court Process?

[6] Learned Counsel submitted that it is an abuse of court process when a party uses the judicial process to interfere negatively with the due administration of justice. That this will arise where multiplicity of suits are filed in court on the same subject matter against the same opponent on the same issue, citing Lokpobiri v. Ogala [2016] 3 NWLR (Pt. 1499) 328 at pp. 370-371, Paras. F-B. He submitted that what amounts to multiplicity of suits is that two or more suits are filed on the same subject matter and issues and the parties are the same citing Society Bic. S. A. v. Charzin Ind. Ltd. [2014] 14 NWLR (Pt. 1398) 494 at pp.574, paras. D-E; 584 paras. C-E. Counsel stated that in the Claimant filed three similar actions in this Court on 5^th July, 2018, 7^th July, 2021 and 16^th May, 2023 respectively, and that the actions consist of the same set of facts and similar issues.

[7] Learned counsel submitted that multiplicity of actions on the same matter between the same parties, even when there exist a right to bring an action has always been regarded as an abuse of court’s process, citing Ezenwo v. Festus (2020) 16 NWLR (Pt. 1750) 342 at p. 340, paras. D – E.  That the appropriate order a Court should make where its process is abused is a dismissal of the action which constituted the abuse, citing Nwosu v. PDP [2018] 14 NWLR (Pt. 1640) 532 at p. 546, paras. D – E. He submitted that every Court has the inherent jurisdiction to stop an abuse of its process by dismissing the process that is the abuse, citing Ogbormwan v. Aghimien [2016] LPELR-40806(CA). He then urged the Court to dismiss the instant suit.

Submission of the Claimant/Respondent

[8] The Claimant submitted one issue for determination:

Whether the Claimant's suit before this Honourable Court is an abuse of Court process.

[9] Learned Counsel submitted that the Claimant has not abused the machinery of the Court, and cited Lokpobiri v. Ogola [2016] 3 NWLR (Pt. 1499) 328 at 371; Society  Bic. S.A. v. Charzin Ind. Ltd. [2014] 14 NWLR (Pt. 1398) 494 at 574 for what constitutes abuse of court process and multiplicity of suits. Counsel submitted that the Claimant has no notice of the alleged suit the Defendant in its affidavit stated as pending before the FCT High Court. He submitted that the Defendant's pending appeal at the Court of Appeal is different from this instant suit and distinguishable.  He submitted that the objection cannot be upheld on the authority of Society Bic. S.A. v. Charzin Ind. Ltd. (Supra), which requires every criterion to be met before an abuse of court process can be held against a party. He then urged the Court to dismiss the application with substantial cost as it is vexatious and lacking in merit.

Reply

[10] Replying on point of law, learned defence counsel submitted that the institution of a fresh action at the Court involving the same parties and the same issue amounts to a re-litigation of the matter which by law the Claimant is estopped from doing, citing Dzungwe v. Gbishe [1985] 2 NWLR (Pt. 8) 528 at p. 537, para. B. Counsel contended that re-litigation amounts to an abuse of Court process even if the matter is not strictly res judicata, citing C.B.N. v. Ahmed [2001] 11 NWLR (Pt. 724) 369 at 408, Para. B. He urged the Court to dismiss the instant suit with punitive costs against the Claimant.

Decision

[11] I have heard the parties, and have considered their written submissions and the authorities cited. The Defendant/Objector has submitted that this suit is an abuse of the process of court. The law is settled that an abuse of court process is constituted when more than one suit is instituted by a Claimant against a Defendant in respect of the same subject matter to the harassment, irritation and annoyance of the Defendant, and in such a manner as to interfere with the administration of justice, see NV Scheep v MV S.Araz (2000) 15 NWLR (Pt 691) 622, Saraki v Kotoye [1992] 9 NWLR (Pt. 264) 156. Abuse of process is the improper use of the judicial process and is a term used to describe proceedings that are frivolous, vexatious, oppressive, or not filed in good faith. There is usually an element of malice in the abuse and improper use of the legal procedure, see Ezenwo v Festus (No 1) (2020) 16 NWLR (Pt 1750) 324. Where a multiplicity of suits are filed in court on the same subject matter against the same opponent on the same issue, this is an abuse of court process, see Lokpobiri v Ogola (2016) 3 NWLR (Pt 1499) 328 at 370 -371.  

[12] The question is whether there is a multiplicity of suits on the same subject matter and issues between the parties. The affidavit evidence reveals that the Claimant  instituted Suit No: NICN/ABJ/194/2018 – Solomon Omoareoje Imooje v. Ecobank Nigeria Limited on 5^th July 2018. He prayed for a declaration that the purported termination of his employment was unlawful; an order compelling the Defendant to  pay his entitlement and N50 Million as damages for unlawful termination. The matter was heard and determined on December 17, 2020. The declaration was granted and the Defendant was ordered to pay the Claimants all his entitlements. The Claimant again instituted Suit No. NICN/ABJ/143/2021 - Solomon Omoareoje Imooje v. Ecobank Nigeria Limited by way of originating summons seeking declarations, interpretation and orders that he is not indebted to the Defendant on the Employee Facility granted him, that the judgment sum paid by the Defendant into his account and withdrawn without a court order amounts to self help, and N100 Million Naira as damages. Judgment was delivered on 24^th March 2022 in favor of the Claimant.

[13] The Defendant upon being dissatisfied with the judgment filed an appeal to the Court of Appeal which is pending Suit No: CA/ABJ/PRE/ROA/CV/651MI/2022. These are facts deposed to by the Defendant in paragraphs 3, 10, and 14 of the affidavit in support of the Preliminary Objection; and the facts have not been controverted by the Claimant in in his counter affidavit. The law is that facts admitted need no further proof, see Unity Bank Plc v. Denclaf Ltd [2012] 18 NWLR (Pt. 1332) 293 SC, Adusie v. Adebayo [2012] 3 NWLR (Pt. 1288) 534 SC.

[14] I have carefully looked at the prayers and reliefs sought by the Claimant in Suit No: NICN/ABJ/194/2018; Suit No: NICN/ABJ/143/2021; and this instant suit. The parties are the same and the subject matter the same even though the Claimant has couched them differently with the use of words. The three suits filed by the Claimant are all seeking for entitlements and damages. For example, relief number two (2) in Suit No NICN/ABJ/194/2018 – is reproduced:

(ii) An Order compelling the defendant to forthwith pay the Claimant all his entitlements as per his promotion as Deputy Manager from November, 2012 till date.

Relief (1) in this instant suit is:

 An Order compelling the Defendant forthwith pay the Claimant all his terminal entitlements as per his position as Deputy Manager as follows….

[15] It is clear that the two reliefs are the same and it has already been determined by the Court in favour of the Claimant. It is the law that where a competent Court has decided a matter and ended in judgment, neither of the parties may re-litigate that issue by formulating a fresh claim, see Cole v Jibunoh (2016) LPELR -40662 (SC) 54, A-E, Oleksandr v Lonestar Drilling Co Ltd (2015) LPELR 24614 (SC) 49-50. The Claimant is estopped from re-litigating the matter which is res judicata. It amounts to an abuse of the process of court, see Caraway ventures integrated Nig. Ltd v Jakana & ors (2022) LPELR 58219 (CA), Nyako v UBA plc (2019) LPELR-46587(CA).

[16] I find that this is the 3^rd suit the Claimant has instituted against the Defendant. It is the same parties, the same set of facts and issues while the Defendant’s appeal on the decision is pending. There can be no doubt that this instant suit is an abuse of the process of court. The proper order to make to stop an abuse of the process of court is one of dismissal, see Ezenwo v Festus supra, Sakamori Constr (Nig) Ltd v L.S.W.C (2022) 5 NWLR (Pt 1832) 399 at 400-401 paras F-D.

[17] Consequently, this suit is hereby dismissed. Costs in the sum of N500,000.00 awarded the Defendant. 

Ruling is entered accordingly.

 

                                                _______________________________

                                                Hon Justice O. A. Obaseki-Osaghae