IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LOKOJA JUDICIAL DIVISION
HOLDEN AT LOKOJA.
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATED: 30TH NOVEMBER 2022 SUIT NO: NICN/LKJ/32/2019
OKOLI VICTOR - CLAIMANT
1.SINOMA INTERNATIONAL ENGINEERING COMPANY LTD
2.DANGOTE CEMENT COMPANY PLC, OBAJANA- DEFENDANTS
C.M. Uche-Enwere Esq with K.A. Nwafor Esq for claimant
G. O. Zekeri Esq with Paul Ameh for 1st defendant.
Liman Salihu Esq 2nd defendant
1. By a General Form of Complaint dated and filed on the 18th day of September 2019 wherein the Claimant claims jointly and severally against the 1st Defendants as follows:
1. A declaration that the claimant was unlawfully dismissed from the employment of the 1st defendant.
2. The claimant claims against the 1st defendant the sum of N249, 750.00 (Two Hundred and Forty Nine Thousand Seven Hundred and Fifty Thousand Naira Only) representing all unpaid severance of salaries from 24th January up until the initiation of this suit.
3. A declaration that the claimant is entitled to unpaid severance of salaries upon dismissal from the services of the 1st defendant.
4. An Order that the claimant is entitled to unpaid severance of salaries upon dismissal from the services of the 1st defendant.
5. A declaration that the claimant is entitled to gratuity and compensation for injury suffered upon his untimely dismissal without notice of same to him.
6. An Order that the claimant is entitled to gratuity and compensation for injury suffered upon his untimely dismissal without notice of same to him.
7. The claimant further claims against the 1st defendant 10% interest per annum until the sum claimed is fully and finally liquidated.
Whereof the claimant claims the sum of N3,371, 250 (Three Million Three Hundred and Seventy- one Thousand, Two Hundred and Fifty Naira Only) being cost of unpaid severances, salaries, compensation for injuries suffered, gratuity and cost of litigation in this suit.
1. A declaration that the claimant was unlawfully dismissed from the employment of the 1st defendant.
2. The claimant claims the sum of N3,371, 250.00 (Three Million Three Hundred and Seventy One Thousand, Two Hundred and Fifty Naira Only) as special damages covering unpaid severances and salaries from 25th day of January 2019 up until the 6th day of August 2019 being the initiation of this suit, compensation for injuries suffered, gratuity and cost of litigation in this suit.
PARTICULARS OF SPECIAL/GENERAL DAMGES
i. Three months salary in lieu of notice N 121, 500.00
ii. Redundancy of salary N 249, 750.00
iii. Compensation for injury N1,000,000.00
iv. Gratuity N1,000,000.00
v. Legal fee N1,000,000.00
AND General damages + N2,000,000.00
Whereof the claimant claims against the 1st defendant the sum of N3, 371, 250.00 as special damages and allowances, N2,000,000.00 as general damages for unlawful dismissal and as per reliefs 1-9 above.
The claimant claims against the 1st and 2nd defendants jointly and severally the sum of N3, 371, 250.00 being severances, salaries, compensation for injury suffered at the place of work (the defendant’s premises) gratuity and cost of this litigation.
The particulars of special damages against the defendants are as highlighted hereunder.
i. Three months salary in lieu of notice N 121,200.00
ii. Redundancy of salary N249,750.00
iii. Compensation for injury N1,000,000.00
iv. Gratuity N1,000,000.00
v. Legal fee N1,000,000.00
AND General damages + N2,000,000.00
Whereof, the claimant claims the sum of N5,371,250.00 jointly and severally from the 1st defendant who is the agent for all purposes of the 2nd defendant and also for the 2nd defendant.
2. It is the claimant’s case vide his statement of facts dated 5th day of September and filed on the 18th day of September 2019 that he was an employee of the defendant as a carpenter in Iron Scaffolding. That during evacuation of the scaffolding being the normal course of his duty in the 1st defendant he had an injury when a clip hit his leg as a result of which he suffered a fracture on his right leg. That prior to his dismissal his salary was at N1,350.00 however half a salary was offered to him for the period of the injury. Going further, he stated that in the alternative he asked for reinstatement into the Company with the option to perform a less hectic work due to the fact that he was still recuperating from the incident. That his compensation for all injuries suffered and other entitlements inclusive of benefits were not paid but rather, he was placed in a department as hectic as the former. Continuing, he stated that he kept appealing to the 1st defendant to allow him have a complete pay of all unpaid severance salary but the 1st defendant refused which led to his dismissal without notice or payment of salary in lieu of notice.
3. On the 28th day of April 2022, the claimant opened his case and testified as CW adopted his written statement on oath as his oral evidence. Exhibits O1-O4 were tendered through him and admitted in evidence. He was cross examined by Counsel on behalf of the 2nd defendant after which Claimant’s case was closed and the case adjourned for definite defence. On the 26th day of July 2022 the defendants failed to open their case and were foreclosed upon the application of claimant’s Counsel and same granted by the Court. Thereafter, case was adjourned for adoption of their final written addresses in the matter.
4. However, the 2nd defendant vide motion on notice dated 28th day of July 2022 and filed 29th day of July 2022 sought for an order of this Court setting aside its ruling dated 26th day of July 2022, it was moved and agued and same refused and discountenanced by the Court on the 10th day of October 2022. The application of the 1st defendant for extension of time and regularization of processes equally suffered the same fate for the more elaborate reasons given in the Ruling of this Court delivered on the 11th day of October, 2022.
5. The 1st defendant filed a notice of preliminary objection dated 26th day of September 2022 praying the Court to strike out this case against the 1st defendant same being incompetent and for lack of jurisdiction and for such further order as the Court may deem fit to make in the circumstance of this case.
The Grounds upon which this application is predicated is as follows;
a. The name “SINOMA INTERNATIONAL ENGINEERING COMPANY LTD” is not the name of the 1st defendant. The 1st defendant’s name was “SINOMA-NANJING CONSTRUCTION NIG. LTD which was changed to “NJZC INTERNATIONAL CONSTRUCTION NIG. LTD since 26th day of March 2015.
b. The 1st defendant was wrongly served with the processes of this Honourable Court with the name “SINOMA INTERNATIONAL ENGINEERING COMPANY LTD”.
c. The Head office of the 1st defendant is situate at 9A Adenubi Close, Off Toyin Street, Ikeja.
d. The suit is incompetent as it does not disclose any employer/employee relationship between the claimant and the 1st defendant.
6. Also filed is a written address wherein counsel raised three issues for the Court’s determination;
1. Whether this Honourable Court has jurisdiction to entertain this suit considering the fact that the 1st defendant was referred to as SINOMA INTERNATIONAL ENGINEERING COMPANY LTD having changed its name to NJZC INTERNATIONAL CONSTRUCTION NIG. LTD since 26th March 2015.
2. Whether the procedure for service of originating processes in this case on the 1st defendant is not defective thereby robbing the jurisdiction of this Honourable Court?
3. Whether the instant suit is not incompetent for failure to disclose any employer/employee relationship.
7. Taking issues one and two together, learned defence Counsel submitted that jurisdiction of a Court is the life wire to empower the Court to adjudicate on a matter and that for a Court to be competent and have jurisdiction over a matter, it is necessary that the condition the proper and competent parties must be identified. He cited in support the cases of Dairo v. R.T.D.L  AL FWLR (Pt. 972) Pg. 322 @ Pg. 332 Holding 4 Paras. G-H and Madukolu v. Nkemdilim  All NLR Part 4 589  2 SCNLR 341,  2 NSCC 374. Going further, it is the contention of learned defence Counsel that the claimant herein filed and served the processes of this Court on the 1st defendant at the gate of the 2nd defendant on the security men of the 2nd defendant at its branch office which is Obajana with the name SInoma International Engineering Company Ltd while the name of 1st defendant which was Sinoma-Nanjing Construction Ltd and was changed to NJZC International Construction Ltd. since 26th day of March 2O15. He cited in support the case of A.G Lagos State v. Eko Hotel Ltd  ALL FWLR Part 1006 Pg. 643 @ Pg. 648 Holding 3 Para G-B. He equally avers that the 1st defendant being a corporate body ought to be served in line with the provisions of the rules of this Court. He cited in support the cases of Treasure Line Interlink Ltd v. Taoreed  LPELR-46940 Holding 1 and Skenconsult (Nigeria) & Anor v. Ukey  LPELR-3072 S.C.
8. On issue three, learned defence Counsel submitted that this suit is incompetent for lack of any employer/employee relationship between the plaintiff and the 1st defendant disclosed in the statement of claim. He cited in support the case of Nigerian Army Council & Anor v. Erhabour  LPELR-44958 (CA). He urged the Court to strike out the suit in its entirety for want of jurisdiction with substantial cost.
9. In opposition, the claimant filed 8 paragraph counter affidavit on 5th October 2022, deposed to by one Sunday Edward principal litigation secretary wherein he averred that the 1st defendant is aware of the pendency of this suit and that the service of all processes in this matter were duly effected on the 1st and 2nd defendants and officially received by their staff. He equally averred that prior to the institution of this action a search was conducted at the Corporate Affairs Commission and the name Sinoma International Engineering Company Limited tallied with the name in which this action was instituted and that the ID card issued the claimant by the 1st defendant is boldly written Sinoma evidencing employer employee relationship. That this Court is clothed with the requisite jurisdiction to entertain this matter.
10. Equally filed along with the counter affidavit is a final written address. Therein the claimant formulated sole issue for determination of this case to wit; Whether the preliminary objection of the defendant/applicant merit any consideration before this Honourable Court.
11. It is the submission of the learned claimant’s counsel that this Court is clothed with jurisdiction to entertain this matter. That exhibit A (Search Report) attached to the counter affidavit in opposition clearly shows that the defendant/applicant is known as Sinoma International Engineering Company Limited. He equally reiterated that in determining whether a Court has jurisdiction over a subject matter, it is the writ of summons and the claim of the claimant that the Court will look into not the defence of the defendant. He cited in support the cases of Adetona v. Gele General Enterprises Limited  3 FWLR Pt. 275 Pg. 867 @ 869; Ndiazu Limited v. Namson Fishing Enterprises  FWLR Pt. 7 Pg. 1064 and Amaechi v. INEC  18 NWLR Pt. 1065 Pg. 42 @ 98. He further submitted that if the 1st defendant choose to change its name, it does not in any way bar the claimant from instituting action in that name. Continuing, Counsel submitted that assuming but without conceding that the claimant did not sue the defendant in its proper name it could be corrected with the leave of the Court and does not in any way vitiate the originating process this matter where the name of the defendant has been incorrectly stated. He urged to hold that the defendant/applicant has been properly served even though served at its branch office at Obajana where the cause of action arose. He cited in support the case of FBN Plc v. Onukwugha  16 NWLR (Pt. 950) 120 CA and Order 6 Rule 3 of the National Industrial Court (Civil Procedure Rules) 2017. That the proof of service and acknowledgment of same before the Court is unchallenged and remains uncontroverted. He cited in support the case of Ethopian Airlines v. Hon. Justice Sylvester Umoru Onu J.S.C  11 NWLR Pt. 936 Pg. 214 @ Pg. 222; Mr. Peter Oguntifa v. United Bank for Africa Plc & 2 Ors  1 FWLR Pt. 358 Pg. 1410 @ Pg. 1417 Paras. E-F. Also, it is the submission of Counsel that 1st defendant/applicant erred when they argued that the claimant was never employed by the 1st defendant /applicant as same has been proven and established by the facts before the Court. He urged the Court to refuse this application as same is grossly prejudicial to the justice of this case.
12. The 1st defendant applicant equally filed a 13 paragraph further and better affidavit in support of the preliminary objection dated 12th day of October 2022 deposed to by one Yu Qingchun a staff of the 1st defendant wherein he averred that the 1st defendant has always been involved in their hiring and firing if need arises and that the claimant’s ID card does emanate from the 1st defendant. That exhibit A attached to counter affidavit (search report) is not the 1st defendant as it has never borne that name but SINOMA-NANJING CONSTRUCTION NIG. LTD later changed to NJZC INTERNATIONAL CONSTRUCTION NIG. LTD.
13. As it is customary to do at the close of evidence and in observance with the rules of this Court the claimant who was the only one who called evidence and the only one who filed his written address adopted same. Learned Claimant counsel adopted his final written address dated 2nd day of September 2022 wherein counsel distilled a sole issue for the determination of this Court thus; Whether the claimant has proved his case to be entitled to judgment of this Honourable Court.
14. Learned claimant’s Counsel submitted that the claimant has proved his case through the relevant documents tendered and admitted before the Court noting that in civil cases claims are proved on balance of probability or on preponderance of evidence. He supplied in support of his assertion the cases of Greif (V.L) Containers Plc v. O.P. & Ind. Ltd  8 NWLR (Pt. 1461) P. 260 (PP. 278-279 Parad G-B; Ishola v. UBN Ltd  6 NWLR Pt. 922 @ P. 422 Particularly P. 440 Paras. D-E and Anozia v. Nnani  8 NWLR (Pt. 1461) P. 241 P. 257 Paras. B-D. Going further, he stated that from the totality of the evidence adduced by the claimant it is undisputed that a contract of employment exists between the claimant and the defendants. he equally posited that that the defendants have not placed any evidence on the imaginary scale to be weighed against the evidence of the claimant. He cited in support of his assertion the case of Amadi v. Orisakwe  NWLR Pt.924 @ 385 @ 403-404 Paras. H-A. That there is equally nothing before the Court to counter the position of the claimant in this case. He cited in support the case of Mabamije v. Otto  LPELR-26058 (SC) Pp. 37-38 Paras. F-E. Also, that the contract between the claimant and the defendants was breached hence an employee whose contract has been wrongly terminated is entitled to damages. He in support cited the case of National Electric Power Authority v. Adesaaji  17 NWLR (Pt. 797) 599 and Price Water House v. Momoh  18 NWLR Pt.1755 @ 65 Paras. B-E 66 Paras. A-D. That the claimant has not only suffered a grave injury for working under the high risk condition but has even incurred expenses and entitled to be compensated. He cited in support the case of UBA v. Ogundokun  3 FWLR 480 P. 5767 @ 5819 Paras. A-D and Wema Bank Plc v. L.I.T (Nig.) Ltd (Pt. 1244) 479 CA. In conclusion, Counsel submitted that it is undisputed that the 2nd defendant is a disclosed principal of the 1st defendant thus as the principal of the 1st defendant he is jointly and severally liable to the action of the 1st defendant. He cited in support of his assertion the case of N.F & V. C.B v. Adegboyega  4 NWLR Part. 1662 @ 293. He urged the Court to grant all the reliefs of the claimant and enter judgment in his favour.
15. Let me start by addressing the competence of the application for stay of proceedings filed by the 1st defendant on the 9th day of November, 2022 after this matter has been adjourned for judgment. It is well settled that a Court is duty bound to consider all applications properly brought before it. See the case of Okeke v. Uwaechina 10 NWLR (Pt 1837) @191-192, Paras G-C. However, it should be noted that the operative word is ‘properly” brought before it. In the instant case this Court on the 13th day of October, 2022 adjourned this matter for judgment. On the 14th day of October, 2022, the 1st defendant filed a Notice of Appeal in this Court. It did not file any other process until the 9th day of November, 2022 when it filed its application for stay of proceedings pending appeal knowing fully well that this matter has been adjourned for judgment. The question that should be asked at this stage is, was the application for stay of proceedings properly brought before this Court? In answering this question, I will refer to the decision of the apex Court in the case of Okeke v. Uwaechina, supra at page 192, Paras C-F where the Court held inter alia that each case must be treated and considered on its own particular or peculiar facts and circumstances as no two cases are identical or the same though they may be similar. The Court went further that even though cases cited by the appellant represented the position of the Courts with regards to the settled principle of law that all applications properly brought before a Court must be heard, they were not apposite to the appeal because there was an extant order which having not been discharged, was binding on the parties as well as on the Court of Appeal. In the instant case, the National Industrial Court (Civil Procedure) Rules, 2017 specifically provides in Order 47 Rules 14 and 15 thus;
14 Where a matter is fixed for judgment or ruling, no motion shall be allowed to prevent a Judge from delivering the Judgment, Order or Ruling.
15 (1) Any motion filed in contravention of Rule 14 of this Order may be incompetent and may not be allowed to be used to delay or prevent the delivery of the Judgment, Order or Ruling of the Court.
(2) A motion or an application which has been filed and an advance copy of same has been served on the respondent(s) within fourteen (14) days before the date fixed for the delivery of the Judgment and seven (7) days before the date fixed for the delivery of the Ruling may be allowed and heard.
16. It is clear from the above that the Rules of this Court generally does not allow any motion to be filed when a case is fixed for judgment having the effect of preventing the judgment from being delivered and thus any such motion filed will be incompetent. However, the Rules equally gives the Court the discretion to allow any such motion where it is filed within 14 days before the date of the delivery of judgment. The operative word in Order 47 Rule 15 (2) is ‘may’ which allows for discretion. Thus, even where the motion is filed within 14 days before the delivery of the judgment, the Court still has discretion whether or not same is competent or not. In the instant case, the defendants have tried severally to frustrate the hearing of this case which has been filed since the year 2019. The Court will not allow a party to hold it to ransom at its own whims and caprices. It is in the light of the peculiar facts and circumstances of this case that this Court finds that this situation is not one that merits exercising its discretion in its favour. It is in the light of the above that this Court finds that the application for stay of proceedings is not competent for hearing, it is consequently discountenanced.
17. Be that as it may, 1st defendant in this case after the Court has foreclosed it and discountenanced its application to set aside the Ruling of this Court and deem its processes filed as properly filed and served, filed a Notice of Preliminary Objection challenging the jurisdiction of this Court. Consequently, the matter was adjourned for hearing of the Notice of Preliminary Objection. On the date fixed for hearing of the Notice of Preliminary Objection the Court however bore in mind that learned counsel for the 1st defendant was not properly before the Court since the Motion for regularization of the 1st defendant’s processes including the memorandum of Conditional appearance has been found to be without merit and the processes discountenanced, the Notice of Preliminary Objection was therefore incompetent on the authority of Eshiet v. Effiong & Ors  LPELR-45184(CA). Thus, the Court decided not to hear the Notice of Preliminary Objection since the 1st defendant is not properly before the Court in view of its failure to file a memorandum of appearance and adjourned the matter for judgment since hearing has already been concluded and Claimant has adopted his final written address.
18. Now, let us assume the Notice of Preliminary Objection is even competent, can it be said that this Court does not have jurisdiction to entertain this case? The Applicants’ Counsel had submitted that the 1st defendants name is NJZC International Construction Nig. Ltd previously known as Sinoma-Nanjing Construction Nig. Ltd and that being a corporate body it ought to be served in line with the provisions of the rules of the Court, noting that service of originating process on a party to a proceeding is fundamental and imperative step of adjudication that ignites or gives the Court jurisdiction to entertain the matter and make order that will be valid and subsisting. The claimant/Respondent argued in the opposite direction as he posited that in determining whether a Court has jurisdiction over a subject matter it is the writ of summons and statement of claim that the Court will look at and that the 1st defendant’s change of name does not in any form bar the claimant from instituting an action as the claimant can only act upon a name supplied to him in the course of employment.
19. Jurisdiction is the life blood and bedrock of all trials without which the trial will amount to a nullity. It is the life blood on which all trials thrive. See the following cases; Odom v. P.D.P 6NWLR (Pt 1456)527@548, Paras C-D; Okolonwamu v. Okolonwamu 9 NWLR (Pt 1676)1@21, Para A and; GTB v. Toyed (Nig.) Ltd & Anor  LPELR-4181 (CA.). The law is trite that it is only a juristic personality either a natural or artificial person created by law that has the right to sue and be sued. It is the position of the law that where a person has been sued under a wrong name, the Originating process can be amended by joining that party in his correct name especially where the parties are not in doubt nor have been misled as to the identity of the person to be sued. See the case of Reg. Trustees of The Airline Operators of Nig. V. NAMA  8 NWLR (Pt. 1408) 1 @ 31. In the instant case, a careful look at the documents frontloaded with the Complaint; particularly the identity card leaves no doubt as to the identity of the person sought to be sued, rather it is the coinage of the name of the said Applicant that was not properly done.
20. In the case of Calabar Municipal Govt v. Honesty 2 NWLR (Pt 1815)403@431, Paras E-G, the apex Court held thus; “Misnomer occurs where the appropriate party is brought to Court but the process reflect a wrong name of the appropriate party. A misnomer can be said to be a mistake in name, that is giving an incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sues or is sued or when action is brought by or against the wrong name of a person. A misnomer occurs when the correct person is brought court but in a wrong name. A misnomer occurs where a person clothed with juristic personality sues or is sued but there is a mistake in stating the correct name of the party.” [Emphasis mine]. See also the case of U.U.U.V. Isuofia v. U.V. Union  6 NWLR (Pt.1243) 394 @ 414 Paras. D-F. The question that should be asked at this stage is can one say the name of the 1st defendant is a misnomer which does not affect the status of the parties? Annexed as Exhibit A to the affidavit in support of the Notice of Preliminary objection at page 190 of the Record is the Certificate of incorporation of one NJC International Construction Nig Ltd previously called Sinoma- Nanjing Construction Nig Ltd. By that Certificate, and the facts deposed to in the affidavit in support of the Notice of Preliminary objection, it is not in doubt that the 1st defendant though now known as NJC International Construction Nigeria Ltd is a juristic person. The only issue then seems to be that it was sued in a wrong name. To my mind, following the decisions of Courts, such is a misnomer which is not fatal to the claimant’s case.
21. With regards to the service of the originating processes on a party to proceeding wherein 1st defendant contended that it was not done in line with the provisions of the Rules of this Court. It is trite that service of Court process is sine qua non to jurisdiction. See the following cases Akande v. Jegede 14 NWLR (Pt 1849)125; Ezim v. Menakaya 9 NWLR (Pt 1623)113@131, Paras F-H; B.B. Apugo Ltd v. O.HM.B. 13 NWLR Pt 1529)206@248, Paras C-D. The claimant in response submitted that there are evidences indicating proper service on the defendant/applicant. The law stands firm that what regulates the service of Court process is the Rules of Court at both Federal and State levels. See Agip (Nig) Ltd v. Agip Petroli Intl 5 NWLR (Pt 1187)348@389, Para C and O.U. Ins. Ltd v. Marine Gen Ass. Co 9 NWLR (Pt 717)92@100, Para E. The Rules of this Court specifically guides this Court as regard service of processes. The Rules of this Court by Order 7 Rule (1)(h) provides for what will be proper service where the person to be served is a Company. It provides thus; “ (h)(i) if the person is a company or the other body corporate, by serving a copy of the document or process on a senior or a responsible employee of the company or body corporate at its registered office or at its principal place of business within the Federation, or its main place of business within the judicial Division in which the dispute first arose or, if there is no employee willing to accept service, by affixing a copy of the document or process to the main door or place of business or by posting same on the wall or the fence of the residence or place of business.” The above provisions of the Rules of this Court is very clear and it is to the effect that a Company may be served through a senior or responsible employee of the company at its registered office or at its principal place of business within the judicial Division in which the dispute first arose or by pasting the process to the main door or place of business. It is thus clear as crystal that service may be effected on a Company at its place of business other than its registered office. I am mindful of the submission of learned counsel for the 1st defendant vide paragraph 5.0 of the address in support of the Notice of Preliminary objection at page 8 of the process that it was the Security men of the 2nd defendants that were served who are not employees of the 1st defendant. First such question of fact ought to be deposed in the affidavit and not in the written address. The above fact was never deposed to in the affidavit in support of the Notice of Preliminary objection.
22. It is settled that what guides the Court is the record of the Court. See Danladi v. Dangiri 2 NWLR (Pt 1442)124@195, Para E-F. In fact the Supreme Court in the case of Onwubuya v. Ikegbunam 16 NWLR (Pt 1697)94@111, Paras G-H held that where in a proceeding, the question arises whether or not a process of Court has been served in the proceeding, it will be a strange thing for a Court to ignore the proof of service afforded by its record of proceeding and hold that such process has not been served. See also the case of A-G, Anambra State v. Okeke 12 NWLR (Pt 782)575@603, Paras F-G. From the records of this Court, particularly the affidavit of service on page 31 of the record, it is clear that the bailiff of this Court in person of one Aliyu Abubakar Alhaji on the 4th day of October, 2019 at about 11:25 am served one Peter (Sinoma Administrative Translator) at Sinoma International Engineering Company Ltd within Dangote Cement Factory, Obajana, Kogi State. It is worthy of note that Claimant by paragraph 2 of his statement of facts has averred that the 1st defendant is an agent of the 2nd defendant Dangote Cement Company and works for the 2nd defendant in the Cement factory. In fact paragraph 3(g) of the affidavit in support of the Notice of Preliminary Objection specifically states thus; “The Principal officers of the 1st defendant are all at the head office while few of its staff are in obajana Kogi State to complete contract for the 2nd defendant.” It is thus not just sheer coincidence that one Peter, who is designated the Administrative Translator of the 1st defendant was served at the premises of the 2nd defendant in Obajana which to me will qualify as the place of business of the 1st defendant within the judicial division of this Court (that is Kogi State) where the dispute in this case arose. The 1st defendant in this case have not stated that it has no employee at Obajana at all which would have meant that the person served at Obajana was not its employee. It merely stated vide paragraph 3(h) of the affidavit thus; “That the processes of this Court were not served on any of the staff of the 1st defendant directly and was not brought to their knowledge” which this Court finds to be untrue going by the contents of the affidavit of service sworn to by the bailiff of this Court stating that one Peter, the Administrative Translator of the 1st defendant was served. The question that agitates the mind of the Court is if the 1st defendant were not served as posited, how were they able to know that the case was in Court? It is not compulsory under the Rules of this Court for the 1st defendant to be served at its registered address. The mode of service adopted to me is proper service, I so find and hold.
23. On the 3rd ground for the objection, it is the contention of the 1st defendant that Claimant’s suit has not disclosed any employer-employee relationship and as such incompetent. Learned counsel for the 1st defendant submitted in the written address in support of the Notice of Preliminary Objection that Claimant has not disclosed that he is an employee of the 1st defendant and that the onus is on him to prove his employment. Let me say that the import of the above objection is that Claimant has not shown a cause of action or reasonable cause of action against the defendant. The law is trite that the effect of failure to disclose reasonable cause of action is that a claimant has no locus standi. See Uwazuruonye v. Gov., Imo State 8 NWLR(Pt 1355)28@57, Para G and Sehindemi v. Gov., Lagos State 10 NWLR (Pt 987)1@39, Paras D-F. A reasonable cause of action is a cause of action with some chances of success when only the allegations in the plaintiff’s statement of claim are considered. See Uwazuruonye v. Gove. Imo State, supra @51, Para A; Beloxxi Co Ltd v. Southtrust Bank 2 NWLR (Pt 1285)605 and; Chevron ( Nig) Ltd v. L.D. (Nig) Ltd 16 NWLR (Pt 1059)168. Thus the law is on a firma terra that when a Claimant files an action and the Court is faced with deciding whether there is a cause of action what the Court considers is the statement of Claim and the accompanying processes. See the following cases; Ikenne Local Govt v. W.A.P.C. Plc 12 NWLR (Pt 1261)223@251, Paras E-G H.S. Engr Ltd v. S.A. Yakubu (Nig) Ltd 10 NWLR (Pt 1149)416@428, Paras D-E and Nwokedi v. Egbe 9 NWLR (Pt 930)293@309, Paras D-F. Hence, the weakness of the case or that it is not likely to succeed is not to be considered at this stage. Thus, for a statement of claim/facts to disclose reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting the infraction of the Claimant’s legal right or failure of the defendant to fulfil its obligations. In the instant case Claimant vide paragraphs of his statement of facts averred that he was an employee of the 1st defendant and stated further that he worked as a carpenter in iron scaffolding at the Obajana business place of the 1st defendant. See paragraphs 1 and 5 of the statement of facts. Also frontloaded as part of the list of Exhibits is a photocopy of an ID Card in the name of the 1st defendant. He equally stated that he had injuries while working for the defendant which resulted in medical attention and for which the 1st defendant paid for his medical bills with an assurance to pay his pay his unpaid salaries during the period of his treatment in the hospital. He also averred that during his service with the 1st defendant, the 1st defendant made little or no provision for adequate protection against hazards which are likely to ensue from his job description inclusive of hazards allowances and he was exposed to working under high conditions which resulted in the injuries suffered prior to his dismissal. Hence his claim for general damages. In my view, the above is sufficient enough and had disclosed a reasonable cause of action against the 1st defendant. It is in the light of this that I find that Claimant’s actions disclosed a reasonable cause of action against the 1st defendant. Flowing from the above, I find the 1st defendant applicant’s application to be unmeritorious and consequently, discountenanced.
24. Before going into the merits of this case, it is important to note that the 2nd defendant in this case took part in the trial of this case and even cross-examined Claimant. In fact 2nd defendant has been represented in this case right from the 3rd sitting in this case which came up on the 18th day of March, 2021 even though it did not file any memorandum of appearance. However, for reasons best known to it despite being represented by counsel right from the 3rd sitting in this case, chose not to file its pleadings until after both defendants were foreclosed by the Court after several opportunities. Pursuant to the above, this Court found no merit in the 2nd defendant’s application to set aside the order of foreclosure made by this Court and extension of time within which to file its processes. The law is settled that a defendant who failed to file a statement of defence is entitled to a hearing before the Court even though he cannot lead evidence. The only legal effect in that circumstance is that the Defendant is deemed to have forfeited his right to first address the Court. However, he can for example rely on a point of law arising from the statement of claim without the necessity of filing pleading and adducing evidence. He may rest on the Claimant's case and simply wish to address the Court on the issues raised in the Claimant’s case. See the case of Majekodunmi & Ors v. Ogunseye LPELR-42547 (CA)1@16-19, Para G; Mainstreet Bank v. Yau LPELR-24657(CA)1@19, Para B. However, the 2nd defendant in this case did not equally exercise its right to address the Court on any point of the law raised in the Claimant’s claims despite being aware of the order of the Court for parties to file their final written addresses even when it fully partook in this case. It is settled that fair hearing is not hearing at all cost but fair hearing within reasonable time. It is in the light of the above that I will proceed to consider the merits of this case.
25. Next, is the merit of this case. The sole issue appropriate for the determination of the case at hand is “whether Claimant by the evidence on record has proven his case to be entitled to the relief sought.” It is pertinent to state at this stage that there is no pleadings of the other parties, i.e. none of the defendants filed a defence to this suit, in this Court which ordinarily should be taken as an admission. This is because it is trite law that the effect of the failure of a defendant to file pleadings is that the assertions of the claimant in his pleading stand unchallenged and are deemed admitted and established. See the following cases; Bauchi State Govt v. Gumau & Anor  LPELR-47061 (CA); Omale v. Federal Ministry of Lands, Housing and Urban Development & Ors LPELR-25906(CA)1@47, Para A; Elumeze v. Onegbedan LPELR-4347(CA)1@14-15, Para G and; Consolidated Resources Ltd v. Abofar Ventures (Nig) Ltd  6 NWLR (Pt.1030) 221. However, this Court is mindful of the nature of the case at hand. It is a well settled position of our law that there is no onus to prove what has already been admitted. See the case of Aliyu Balogun v. Shitu Labiran  6 SCNJ 71 2 85 and; Danjuma v. Nasiru & Anor  LPELR-25922 (CA)10-11, Para E. However, it should be noted that this is a declaratory action wherein the complainant is to rely on the strength of his case. Declaratory actions fall within the exception to the rule of admission provided in the Evidence Act. In the case of Alhassan & Anor v. Ishaku  LPELR-40083(SC) 20, Paras E-F, the Supreme Court per Rhodes- Vivour, JSC (Rtd) stated succinctly thus; “Sections 20 and 21 of the Evidence Act provides for admission. Admissions in pleadings are a waiver of all controversy on the fact the pleader admits." However, the exception to this is where the Plaintiff/Claimant/Petitioner seeks declaratory reliefs. It then becomes a different kettle of fish. The law is settled that declaratory reliefs cannot succeed even on an admission by the opposing side. The reason is that a declaratory action is discretionary in nature. It is a species of civil action whose purpose is to seek an equitable relief in which the Plaintiff prays the Court, in the exercise of its discretionary jurisdiction, to promote or declare an existing state of affairs in law in his favour, as may be discernible from the averments in the statement of claim or pleadings from the claimant. Hence, the onus of proof here lies on the petitioners. They must succeed on the strength of their own case and not on the weakness of the defence, except where the case for the defence supports the Respondents' case…” [Emphasis mine]. See also the following cases; Achir & Anor v. Chabo & Ors  LPELR-48763 (CA)26-28, Para A; Oyetola v. Adeleke & Ors  LPELR-47545 (CA); A. G. Rivers v. AS. G. Bayelsa  3 NWLR (Pt. 1340) 123 @ Pp. 160-161 Paras. G-B. Thus, the onus is still on the Claimant to prove his case and his entitlement to the reliefs sought.
26. The law is firmly settled that an employee claiming wrongful dismissal from the employment must plead and prove his employment and the terms and conditions of the employment and the manner in which same was wrongly terminated. Thus, such an employee must found his or her claim on the contract of service. See the following cases; Briggs v. Harry 9NWLR (Pt 1516)45@74, Paras A-F(CA); Aji v. C.B.D.A 16 NWLR (Pt 1486)554@571, Paras G-H, 572, Paras D-E (SC) and; Okomu Oil Palm Co Ltd v. Iserhienrhien 6 NWLR (Pt 710)660@673-674, Paras H-B. Ordinarily, the best way of proving an employment relationship is by way of letter of employment however there are instances even in the absence of an employment letter the Court can still infer employment relationship if there are other evidence to show the existence of same. By virtue of the provisions of Sections 131-133 of the EA, he who asserts must prove. This is because a party who desires Judgment to be given in his favor on the basis of the existence of certain facts must prove that those facts exist. See the following case; Agbabiaka v. First Bank LPELR-48125(SC)1@8,Para D; Omajali v. David & Ors LPELR-47928(CA)1@74, Para B; Akinbade & Anor v. Babatunde & Ors LPELR-43463(SC)1@47-48, Para E. Claimant vide his oral testimony in this case maintained that he was an employee of the 1st defendant. Although claimant did not tender his letter of employment or any contract of employment, he is however relying on Exhibit O1 which is a photocopy of an identity card. It is a trite principle of law that documentary evidence is the hanger on which to assess oral evidence and therefore makes oral evidence more believable and credible. See the following cases; Emeka v. Innocent & Ors LPELR-48190(CA)1@26-27, Para F; Oyewusi & Ors v. Olagbami & Ors LPELR-44906(SC)1@39, Paras B-B and; First Bank v. Azifuaku LPELR-40173(CA)1@19, Paras E-E. However, such documentary evidence must be one that is proper before the Court and admissible. The law is trite that a Court has a duty to admit only admissible evidence, but where it inadvertently admits inadmissible evidence, the Court must at the stage of judgment treat same as if it has never been admitted. That is same must be expunged from its record. See the following cases; Suberu v. State LPELR-3120(SC)1@17-18, Para G and; Abubakar & Anor v. Joseph & Anor LPELR-48(SC)1@17-18, Para G. By virtue of Sections 86(1) and (87(1) of the Evidence Act, 2011 there are two ways by which contents of a documents can be proved; either by primary evidence or secondary evidence. Primary evidence is the document itself produced for the inspection of the Court while secondary evidence includes, photocopies, certified true copies of public document, etc. Some circumstances in which secondary evidence as regards the existence of a document may be given includes; where the original is lost, or has been destroyed or cannot be found, where the original is of such a nature that cannot be easily moveable by the Court, the original is a public document, etc. The law is equally settled that a photocopy of a document is inadmissible in evidence without proper foundation being laid for the where-about of the original. See the following cases; Goodwill & Trust Investment Ltd v. Witt & Bush Ltd  All FWLR (Pt576)517 Ngige v. Obi 14 NWLR (Pt 999)1@169, Paras F-G; Daggash v. Bulama 14 NWLR (Pt 892)144@228, Para H and; Akono v. The Nigerian Army 14 NWLR (Pt 687)318. Claimant in this case tendered secondary evidence of his identity card. and he has failed to supply and or tell the Court where about of the original copy justifying the admissibility of the secondary evidence whereas documents are ordinarily proven by primary evidence except instances where the original is shown or appears to be in possession or power of another person and notice to produce is given and such a person does not produce it, where the existence condition or contents of the original have been proved to be admitted by person against whom it is proved or by his representative in interest, where the original has been destroyed or lost, where the original is not easily movable, where it is public document, where certify copy is permitted, where the original consist of numerous account or other documents which cannot conveniently be examined in Court and where the document is an entry in a banker’s book. Claimant has failed to lay proper foundation and equally did not say the original is in possession of the defendants. It is the light of the above stated supra that I find that exhibit O1 is not admissible and as such expunged from the records of the Court at this stage. In the absence of Exhibit O1, there is hardly any other document that can prove the employment relationship between Claimant and the 1st defendant.
27. I am not unmindful of the fact that Claimant also in proof of his case is relying on exhibit O3 which purports to be receipts of payment of his salary. A cursory look at Exhibit O3 will show that it is written in Chinese language. The law is well established that the official language of the Court is English hence any exhibit tendered before the Court must be in English Language or interpreted in English language even if the Court understand the language. Differently put, the official language of the Court in Nigeria is English language consequently, where a document is prepared in any other language, it ought to be translated to English language, where it is not so translated, it will not be admissible in evidence. However, where it is admitted without objection and without its translated version, it ought to be expunged. See the cases the following cases; Ifaramoye v. State 8 NWLR (Pt 1568)457@486-487, Paras H-H Abolarin v. Ogundele  10 NWLR (Pt. 1308) 253 ; Bello v. Sanda  1 NWLR (Pt. 1281) 219 CA and Kankia v. Maigemu  6 NWLR (Pt. 817) 496 . Thus, a Court can not engage in the translation of such document since he cannot perform the role of a witness and a Judge at the same time. In the instant case exhibit O3 was written in Chinese language and was not translated to English language by Claimant who is seeking to rely on same neither was there any translated copy put in evidence. The document cannot in the circumstance be taken into account by the Court. In view of the above I am not able to find any evidence in support of the Claimant’s case to prove that he was actually an employee of the 1st defendant and was paid as such or in proof of his terms and conditions of employment.
28. I also do not lose sight of Exhibit O4 which is a letter of demand for unpaid salary and other entitlements purportedly written to the 1st defendant. As stated supra a Court is duty bound to act only on admissible evidence. By the doctrine of lis pendens, any document made in anticipation of litigation or during the pendency of an action is inadmissible if made by an interested party. See; A.C (O.A.O) Nig. Ltd v. Umanah 4 NWLR (Pt 1344)323@346, Paras E-G and; Owie v. Ighiwi 5 NWLR (Pt 917)184@220, Paras A-B. The determining factor is if the maker of such document is a person interested. The disqualifying interest is a personal not merely interest in an official capacity, where however the interest of the maker is purely official or as a servant without a direct interest of a personal nature, there are decided cases that the document is not thereby excluded. The nature of the disqualifying interest will depend upon the nature of duty undertaken by the servant. Where from the nature of the duty the maker can be relied upon to speak the truth and that he will not be adversely affected thereby, the document has always been admitted in evidence. See the following cases; Olomo v. Ape LPELR-22327(CA)1@18-22, Paras E-E and; Highgrade Maritime Services v. First Bank LPELR-1364(SC)1@32-33, Para F. The documents that made up the said Exhibit O4 were authored by learned counsel herein on behalf of the Claimant and which was in official capacity as a lawyer of the Claimant who is an interested party. In my view, the nature of the interest of the Claimant counsel is not different from the nature of the interest of Claimant. The said letters were obviously written in anticipation of litigation even going by their contents. It is in the light of the above that I discountenance the said Exhibit O4. In view of the foregoing, I am of the view that Claimant’s action for wrongful termination must fail having failed to prove the most basic element of the case which is the existence of a contract and the terms of such contract.
29. Now let me discuss the liability of the 2nd defendant if any. The doctrine of privity of contract that operates to the effect that only parties to a contract can sue and be sued on the contract or its breach and no other party can incur liabilities under it. See the following cases; Vital Inv. Ltd v. CAP plc 4 NWLR (Pt 1820)205@253, Paras D-F and Febson Fitness Centre v. Cappa H. Ltd 6 NWLR (Pt 1455)263@280, Paras B-D. Claimant in the relevant period in this case under cross examination by learned counsel on behalf of the 2nd defendant admitted that he has never had any dealing with the 2nd defendant and the 2nd defendant was not his employer or the person he was working for. He also admitted that he is only in Court in respect of the 1st defendant who to him was his employer which relationship this Court has stated that Claimant was unable to prove. Even though the affidavit in support of the Notice of Preliminary objection filed by the 1st defendant specifically stated therein that the 1st defendant is a contractor of the 2nd defendant, Claimant in this case has not shown by evidence that the 2nd defendant wronged him in any way or that it was part of the purported and unproven employment arrangement between him and the 1st defendant. It is thus clear that Claimant has no justification for claiming against the 2nd defendant as it did in relief 2. Right to an award of damages is only proven when a wrong is established. In the instant case, Claimant has not shown how either the 1st or 2nd defendants wronged him for them to be liable to pay damages. It is in the light of the above that I find that Claimant’s claim for damages must equally fail.
30. In sum, I find that Claimant has not proven his case or entitlement to any of the reliefs sought. Accordingly, Claimant’s case is dismissed. Parties are to bear their respective cost.
Judgment is accordingly entered.
Hon. Justice O. O. Oyewumi