IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

27Th DAY OF JUNE 2022                                                         SUITNO.NICN/CA/46/2023

BETWEEN:

Ekpo Paulinus Out …………………………………………………………………. Claimant/respondent

AND

Pilgrims Nigeria Security Limited (PNSL) ………………………………………..….…… defendant

Lafarge Africa Plc ………………………………………………………………..….. defendant/applicant

RULING.

1.     This deal with motion on notice dated 14/12/2023 and filed on the same date. The application was brought pursuant to Order 13 Rule 14(2) and Order 17 Rule 1(1)-(6) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of this Honourable court as enshrined in section 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In the application the applicant is praying for:-

1.     An order striking out this suit for want of jurisdiction.

OR ALTERNATIVELY:

2.     An order striking out the name of the 2nd defendant/applicant of this suit for being wrongly joined by the claimant/respondent as a party in this suit on the ground of want of reasonable cause of action and/or locus standi against her by the claimant/respondent and for her not being a necessary and proper party in this suit.

3.     And for such further order(s) as this Honourable Court may deem fit to make under the facts and circumstances of this case.

2.     The grounds for this application are:-

                               I.            This matter was not brought and initiated before this Honourable Court in accordance with due process of law and upon satisfaction of all conditions precedent to exercise of jurisdiction, as the law is trite that where a set of facts or cause of action gives rise to multiple causes of action, including a breach of a fundamental rights, the party so affected, would have to bring two different actions at the same time;

                            II.            That the claimant/respondent does not have any reasonable cause of action and/or locus standi to initiate this action against the 2nd defendant/applicant nor is the 2nd defendant/applicant a proper and necessary party to this suit.

3.     The application is supported by a 7 paragraphs affidavit sworn to by one Romeo Ojong, a legal practitioner in the law firm of Victor Essien & Co. Solicitors to the 2nd defendant/applicant.

4.     The crux of the deposition in the affidavit in support is to the effect that the 2nd defendant/applicant is not a party to contract of employment entered into between claimant/respondent and the 1st defendant, which claimant/respondent had averred to have been wrongfully suspended. Also paragraph 16 of the statement of facts clearly stated that it was the site manager of the 1st defendant, Mr. Joseph Okon Effiong, who stopped the claimant from resuming work. And the Human Resources Manager of the 1st defendant Mr. Christopher never listened to the claimant in this suit.

5.     On arrest and detention of the claimant paragraph 19 of the statement of facts shows that the claimant was arrested at the behest of the 1st defendant and never by the 2nd defendant/applicant.

6.     It was also stated that the 1st defendant on record is an independent contractor engaged by the 2nd defendant/applicant to provide security services in the 2nd defendant/applicant’s site by protecting and guarding the 2nd defendant/applicant’s site and premises against trespass and theft. And the 2nd defendant had no control whatsoever over the 1st defendant on record nor does she has control over the 1st defendant’s mode, manner and method of operations and dealings with the 1st defendant’s employees and also in relation to the 1st defendant’s activities and operations in the 2nd defendant/applicant’s site, as the 1st defendant on record is not also an agent of the 2nd defendant /applicant.

7.     T. S. Duru, Esq; for the 2nd defendant/applicant holding brief of A. G. Robert, Esq; in arguing the motion on notice informed the court he is relying on the depositions contained in the affidavit in support. Counsel also adopted the written address filed along with the motion on notice as his argument.  in the written address filed along with the application, twin issues were formulated for determination as follows:-

1.     Whether considering the indisputable facts that the claimant’s claims, as contained in his originating complaint and statement of facts dated and filed on the 4/10/2023 constitute a set of facts or wrongful suspension of employment and breach of fundamental rights, it can be adjudged that this court has the requisite jurisdiction to entertain, hear and determine this suit in the light of the claimant’s failure to bring or institute two different actions at the same time, one being for wrongful suspension of employment and the other being for breach of fundamental rights.

2.     Whether considering the averments contained in paragraphs 1, 2, 3, 10, 11, 12, 13, 14, 15, 16 and 19 of the claimant’s statement of fact showing the fact that the applicant is not privy to the contract of employment between the claimant and the 1st defendant and also the fact that the claimant was arrested and detained for 3 days at the behest of the 1st defendant, VEC3, and the fact that the 1st defendant on record is an independent contractor engaged by the 2nd defendant/applicant to provide security services in the 2nd defendant/applicant’s  site by protecting and guarding the 2nd defendant/applicant’s site and premises against trespassers and theft, it can be adjudged that the claimant has any reasonable cause of action and locus standi to institute this action against the 2nd defendant/applicant and the 2nd defendant/applicant can also be adjudged as a necessary and proper party to this suit.

ARGUMENT:

8.     Issue one; Whether considering the indisputable facts that the claimant’s claims, as contained in his originating complaint and statement of facts dated and filed on the 4/10/2023 constitute a set of facts or wrongful suspension of employment and breach of fundamental rights, it can be adjudged that this court has the requisite jurisdiction to entertain, hear and determine this suit in the light of the claimant’s failure to bring or institute two different actions at the same time, one being for wrongful suspension of employment and the other being for breach of fundamental rights. To support the submission of counsel refers to several decisions on conditions precedent to exercise of jurisdiction. They includes Madukolu V Nkedlim (1962) 2 BSCC 374; CBN V SAP (NIG.) Ltd V(2005) 3 NWLR (Pt.911) 152; UManah V Attah (2006) 17 NWLR (Pt.1009) 503; Usani v Duke (2006) 17 NWLR (Pt.1009) 610; Uzoho v NCP (2007) NWLR (Pt.1042) 320; Mobil Producing Unimited V Pepple (2019) LPELR-47473(CA).

9.     Counsel submitted that the three conditions precedent of suit being properly constituted as regards number and qualification of the members of the bench such that no member is disqualified, the subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the court from exercising of its jurisdiction  and the cause comes before the court instituted by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction, must co-exist for any court to have jurisdiction to hear and determine a case.

10.                       According to counsel in the case at hand two conditions have been satisfied. But, the third condition bringing the case was not initiated in accordance with due process of law to warrant court to assume jurisdiction. Counsel submitted that under the Nigerian legal system cum jurisprudence a matter consists of a set of facts or a cause of action giving rise to multiple causes of action, including a breach of Fundamental Right, the prospective claimant cannot lump the multiple causes of action including a breach of fundamental right in one suit. For such a suit to be competent and valid to activate the jurisdiction of the court, the prospective claimant must bring or institute two different actions at the same time, one for the breach of fundamental right and the other for other cause of action. To support this submission counsel relied on the case of Egbuonu v B.R.T.C. (1997) 12 NWLR (Pt.531) 29; Sea trucks Nigeria Ltd v Anigboro (2001) 2 NWLR (Pt.696) 159; Nwanze v NRC (2023) JELR-110298(SC), where Nweze, JSC, has this to say:-

‘’…in this case, the claims are partly for breach of fundamental rights and partly for wrongful termination of employment. where a set of facts or causes of action give rise to multiple causes of action, including a breach of a fundamental rights, the party so affected, would have to bring two different actions at the same time, Egbuonu v B.R.T.C. (1997) 12 NWLR (Pt.531) 29; Sea Trucks Nigeria ltd v Anigboro (2001) 2 NWLR (Pt.696) 159’’.

11.                       Counsel further submitted that from the statement of facts the claim of the claimant are partly for suspension and partly for breach of fundamental right; while reliefs/clams a, c and d are claim for wrongful suspension of employment, claims/reliefs b and d are claims for breach of fundamental right. The claimant is duty bound as condition precedent to file two separate/different actions at the same time before this court. But, the claimant failed and lumped both causes of action together in one suit, which consequently clothed his action with regalia of lack of jurisdiction to wit; initiating and bringing this action before this court not in accordance with due process of law and upon satisfaction of all conditions precedent to the exercise of jurisdiction.

12.                       Counsel also submitted that it is settled principle of law where the law stipulates a particular mode of doing things, the adoption of another mode in doing that thing renders the act also done null and void. To support his submission counsel relied on the cases of EMZOR Pharmaceuticals Ind. Ltd v GEENCAF Ventures Ltd & Anor (2021) LPELR-54695(CA; CRUTECH v Mr. Lawrence O. Obetan (2011) L{ELR-4007(CA).

13.                       Counsel also submitted that having regards to the statement of facts that disclosed multiple causes of action, this court does not have jurisdiction to entertain, hear and determine this suit in the light of the claimant’s failure to bring or institute two different actions at the same time. Counsel urged the court to resolve issue 1 in favour of the applicant.

14.                       Issue 2; Whether considering the averments contained in paragraphs 1, 2, 3, 10, 11, 12, 13, 14, 15, 16 and 19 of the claimant’s statement of fact showing the fact that the applicant is not privy to the contract of employment between the claimant and the 1st defendant and also the fact that the claimant was arrested and detained for 3 days at the behest of the 1st defendant, VEC3, and the fact that the 1st defendant on record is an independent contractor engaged by the 2nd defendant/applicant to provide security services in the 2nd defendant/applicant’s  site by protecting and guarding the 2nd defendant/applicant’s site and premises against trespassers and theft, it can be adjudged that the claimant has any reasonable cause of action and locus standi to institute this action against the 2nd defendant/applicant and the 2nd defendant/applicant can also be adjudged as a necessary and proper party to this suit.

15.                       In arguing issue 2, counsel began argument by referring to order 13 rule 14(2) of the rules of this court and submitted that by this rule this court is empowered either suo motu or upon application to strike out name of any party wrongfully joined. According to counsel from paragraphs 1, 2, 3, 10, 11, 12, 13, 14, 15, 16 and 19 of the statement of facts, the claimant was arrested and detained for 3 days at the behest of the 1st defendant. The wrongful suspension of claimant was vide the 1st defendant. The 2nd defendant is not employer nor is she privy to the contract of employment entered into between the claimant/respondent and the 1st defendant. Again, the 1st defendant on record, by virtue of exhibit VEC3, is an independent contractor engaged by the 2nd defendant/applicant to provide security services in the 2nd defendant/applicant’s site by protecting and guarding the 2nd defendant/applicant properties and has no control whatsoever over the 1st defendant on record nor does she has control over the 1st defendant’s mode, manner and method of operations in relation to both the 1st defendant’s employee and in the 2nd defendant/applicant’s site, as 1st defendant on record is not also an agent of the 2nd defendant/applicant. Thus, the 2nd defendant/applicant cannot be held vicariously liable for the tortious acts of the 1st defendant on record committed against the claimant/respondent, as the 1st defendant is neither an employee nor an agent of the 2nd defendant/applicant.

16.                       It is submission of counsel that from the above facts the 2nd defendant/applicant was wrongly joined as a party to this suit by the claimant/respondent, as the claimant/respondent is devoid of locus standi and any reasonable cause of action against the 2nd defendant/applicant. Counsel submitted that an employer can never be held vicariously liable for the tortious acts of an independent contractor unless it is shown that the employer specifically authorised the independent contractor to commit or perpetrate the said tortious acts. In support of this contention reliance was placed on the case of AIYETAN V NIFOR (1987) 3 NWLR (Pt.59) 148 – 160; Thank Brothers Ltd v Landed Properties Ltd & Anor. (1962)2 ALL NLR 22.; Akibu v Opaleye (1974) 1 ALL NLR 344; Alhaji v Egbe (1986) 1 NWLR (Pt.16) 364; Ayodele James v Mid-Motors (1978) 11-12 SC 31; Benson v Otubor (1975) 3 SC 9; Boyle v Kodak (1969) 1 WLR 661; Green v Green (1987) 3 NWLR (pt.61) 480. Counsel submitted based on these authorities the 2nd defendant/applicant cannot be held vicariously liable for the tortious act of the 1st defendant and those of the site manager and Human Resource Manager as there is exist no employer-employee relation between either the 1st defendant or the 1st defendant’s site manager and Human Resources Manager and the 2nd defendant/applicant.

17.                       Counsel maintained tha6 the position of the law remains only parties to a contractual agreement are bound by the terms and conditions of such a contractual agreement. In other words a party who is not a party to any contractual agreement cannot be held liable for any breach arising from such contractual agreement by any of the parties thereto. In support of this position reliance was placed on the cases of Ademola v Danjuma (2021) LPELR-45689(SC); Chris Dura Aondo v Benue Links Nigeria Ltd (2019) LPELR-46876(CA); Doyin Motrs Ltd v SPDC (Nig.) Ltd (2018) LPELR-44108(CA); Primeview Hotels Ltd & Anor v Hotel Presidential ltd & Ors. (2020) LPELR-50642(CA);

18.                       It is also the submission of counsel that the claimant/respondent does not have locus standi to institute this action against the 2nd defendant/applicant since 2nd defendant is not a party to the contract of employment between the claimant and the 1st defendant. counsel urged the court to resolve issue 2, in favour of the 2nd defendant/applicant.

19.                       In reaction to the application, the claimant filed a 6 paragraphs counter affidavit, sworn to by the claimant himself wherein he stated that although he was employed by the 1st defendant in this suit who is an independent contractor for providing security services all the performance of his duty was done at the Mfamosing facility of the 2nd defendant, under strict supervision by both personnel’s of the 1st and 2nd defendants. The trucks and goods were being protected by the claimant under the instruction of the 1st defendant but by supervision of the 2nd defendant. The entire activities that gave rise to the subject matter in this suit arose from the interaction between the claimant as well as the 1st and 2nd defendants’ staff. The facts contained in the statement of facts shows that the 2nd defendant was actively involved in how the claimant performed his task or duty on the 2nd defendant’s facility/plant at Mfamosing, Akamkpa Local Government Area of Cross River State as per paragraphs 4, 11, 16, 18 and 19. The arrest of the claimant took place on the facility/plant at Mfamosing, Akamkpa Local Government Area of Cross River State. The arrest was performed by the 1st defendant under the behest of the 2nd defendant and it will be just for the honourable court to take evidence of the 2nd defendant on its role for the just determination of this case. The clamant is not a party in suit N. NICN/CA/55/2022; Mr. Joseph Okon Effiong v Pilgrims Nigeria Security Limited & Another exhibit VEC3. This application was brought in bad faith in attempt for the 2nd defendant to run away from liability. The grant of the application will prejudice the claimant. It is in the interest of justice to refuse this application.

20.                       I. G. Akiki, Esq; counsel for the claimant in arguing in opposition to the application relied on the depositions contained in the counter affidavit counsel also adopted the written address filed along with the counter affidavit as his argument on this application. Counsel urged the court to refuse the application. In the written address the claimant stated that he is adopting the two issues formulated by the 2nd defendant/applicant in its application, however, the twin issues submitted by the claimant are not the same with the issues submitted by the 2nd defendant in its address. The issues formulated by the claimant are:-

1.     Whether this honourable court has he requisite jurisdiction to hear this action same bothering on both issues of breach of employment and fundamental human rights.

2.     Whether considering the entire summary of the facts of the claimant’s case, a reasonable cause of action has been made against the 2nd defendant.

ARGUMENT:

21.                       Issue 1; Whether this honourable court has the requisite jurisdiction to hear this action same bothering on both issues of breach of employment and fundamental human rights.

22.                       In arguing issue one counsel agreed with the counsel for the 2nd defendant that the three conditions precedent for exercise of jurisdiction as enunciated in the case of Madukolu v Nkemdlim (supra) must be present and fully complied with before a court can assume jurisdiction to entertain a matter.

23.                       It is the submission of counsel that the National Industrial Court of Nigeria is one of the courts established by in section 254A of the Constitution of the Federal Republic of Nigeria, 1999, as amended. And the provisions of section 254C (1) (a) and (d) of the Constitution as amended, the court is clothed with requisite jurisdiction to hear this case under the reliefs sought by the claimant as they fall within the express provisions of section 254C of the Constitution, as amended.

24.                       Counsel continued his submission that the subject matter in this case arose in the course of employment and the contested arrest and detention of the claimant took place in the cause of the claimant’s employment. In support of this contention counsel relied on the case of Council FedPoly, Mubi v Dingoli (2014) 16 NWLR (Pt.1433) 371, FCE Gusau v Abubakar (2022) 12 NWLR (Pt.1843) 125.

25.                       Counsel submitted that it is general knowledge that this court is the only court vested with jurisdiction to hear cases related to employment in Nigeria as per section 254C(1) of the Constitution. Counsel also submitted that all the authorities relied by the 2nd defendant on multiple causes of action are misconceived as they do not relate to claimant’s case.

26.                       According to counsel the case of Egbuonu v B.R.T.C (1997) 12 NWLR (Pt.531) 29 cited by the 2nd defendant, in that case the appellant commenced an action against the respondent in the Maiduguri High Court for the enforcement of his Fundamental rights pursuant to the Fundamental Rights (Enforcement Procedure) Rules 1979 and had other declaratory reliefs which included unlawful termination of his employment and reinstatement with repayment of all unpaid entitlements. The lower court has heard the said action and granted all the reliefs of the appellant. The respondent dissatisfied appealed to court of Appeal, which allowed the appeal and struck out the appellant’s claim. At Supreme Court on mode of commencement it was held.

Where a set of facts or causes of action gives rise to multiple causes of action including a breach or threatened contravention of a fundamental right under the 1979 Constitution, the party so affected, as plaintiff, would have to bring two different actions at the same time.

27.                       Also in Sea Trucks v Anigboro (supra) the issue raised before the court was whether in the circumstances of the case, the respondent’s grievance against his summary dismissal by the appellant was or could be validly challenged by way of an action under the Fundamental Right (Enforcement Procedure) Rules, 1979. The Supreme Court focused mainly on the propriety of challenging summary dismissal from employment under the Fundamental Rights (Enforcement Procedure) Rules, 1979, which was raised by the appellant in its brief.

28.                       The claimant in this case did not commence his action under the Fundamental Right (Enforcement Procedure) Rules, 1979, as in the cases cited and relied by the 2nd defendant.  The claimant’s case was instituted in line with order 3(1) of the NICN 2017 Rules by complaint and same has duly complied with order 3(9) of the NICN rules, 2017. Furthermore, the alleged breach of fundamental right is ancillary or incidental to the main grievance or complaint this court has jurisdiction to entertain the claim of the claimant. To support this submission counsel relied on the case of Pharmabas (NIg.) Ltd v Olatokundo (2010) 10 NWLR (Pt.1732) where it was held:

‘’a person who alleges infraction of his fundamental rights need not to invoke the constitutional procedure under the fundamental Right Enforcement Procedure) Rules he may initiate an ordinary civil claim under the relevant rules of court. This is what normally happened in National Industrial Court when the infraction forms part of the reliefs sought’’.

29.                       It is submission of counsel that once the alleged breach of human right is not the principal claim, the complete or fuller jurisdiction usually hears the claim, therefore this honourable court can hear a claim for wrongful termination where a breach of human right alleged is an ancillary issue. Emeka v Okoroafor (2017)LPELR-4173SC. Since the alleged breach of fundamental right in this case is not the principal claim this court has requisite jurisdiction under section 254C to entertain this suit. Counsel urged the court to resolve issue 1, in favour of the claimant.

30.                       Issue 2; whether considering the entire summary of facts of the claimant’s case, a reasonable cause of action has been made against the 2nd defendant. in arguing this issue counsel contended that the case of the claimant is that although he was employed by the 1st defendant who is an independent contractor for providing security services to the 2nd defendant all the performances of duty was done at Mfamosimi facility of the 2nd defendant under strict supervision of both personals of the 1st and 2nd defendants. The claimant’s case has also revealed that the trucks and goods were being protected by the claimant under the interaction of the 1st defendant but on supervision of the 2nd defendant. The entire activities that led to the filing of this case took place in the premises of the 2nd defendant. The 2nd defendant has some case to answer before this court.

31.                       Counsel submitted that cause of action is determined by reference to the averments in the claimant’s statement of claim and writ of summons. To support this contention counsel relied on the cases of Seven Up Bottling Company v Abiola & Sons (2001) 13 NWLR (Pt.730) 469 @ 495, per Onu, JSC Chief Afolayan v Oba Ogunride & 3 Ors (1990) 1 NWLR (Pt.127) 369, per Karibi-Whyte, JSC

32.                       To counsel the essence of joining a party in a suit is for just determination of a case before the court. Hence every party whose presence is needed for determination of a suit must be joined as a party. The question that flows from this argument then is; can this honourable court judiciously hear the claim of the claimant with the absence of the 2nd defendant/applicant. Counsel answered in the negative. And submit that the 2nd defendant has many roles to play in this suit. More so that all the performance of the duty was done at the 2nd defendant’s facility/plant under strict supervision of by both personnel’ of the 1st and 2nd defendants. The case has also revealed that the 2nd defendant’s trucks are being protected by the claimant under the instruction of the 1st defendant but by supervision of the 2nd defendant.

33.                       On argument of 2nd defendant that 1st defendant is an independent contractor he cannot be held vicariously liable for its act relying on several authorities. Counsel submitted that, it is true and correct principle of contract that a person cannot be held liable for damages for breach of contract of which he or she was never a party to the contract. On this submission reliance was placed on the case of Ademola v Danjuma (2021) LPELR-45689(SC). However, counsel pointed out that in the case at hand, the claimant is not proceeding against the 2nd defendant for wrongful termination and claim for unpaid salaries as argued by the 2nd defendant, but on reliefs (B) and (D) that relates jointly to both the 1st and 2nd defendants. Counsel continued his submission that it is wrong for the 2nd defendant to argue that doctrine of vicarious liability does not exist in employment matters. The reason being that there exists exceptions to the general rule, as encapsulated in the decision in the case of Iyare V Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (Pt.1119) 300, where it was stated thus:-

In case of a tortfeasor, each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. See: De Bodreugam v. Arcedekere (1302) 70 30 Edw1 (Roll series) 106. The following for instance, are joint tortfeasors:

a) Employer and employee where the employer is vicariously liable for the tort of the employee.

b) Principal and agent where the principal is liable for the tort of the agent.

c) Employer and independent contractor where the employer is liable for the tort of his independent contractor.

d) A person who instigates another to commit a tort and the person who then commits the tort.

e) Persons who take concerted action to a command and in the course of executing that joint purpose commit a tort.

34.                       According counsel the present case falls within the category of joint tort feasors, i.e. employer and independent contractor.

35.                       Counsel submitted that the court in establishing the extent of vicarious liability of an employer in the acts of its independent contractor which is that an employer is not answerable for the tort of its independent contractor committed in the course of execution of the work admits of some recognized exceptions one of which arises where the contractor was employed to do something unlawful. The test usually adopted by the honourable court is to determine whether the wrongful act was done in the course of the employment and if the same was either authorized by the employer or master and whether the mode of doing some act was authorised by the employer as in the case here. In the instant case the 2nd defendant who was seized of the 17th May 2020, however instigated the 1st defendant to unlawfully arrest the claimant, who until now has not been charged to any court of law in Nigeria. In support of this submission counsel relied on the case of ACB Ltd v Apugo (1995) 6 NWLR (Pt.65

36.                       Counsel further submitted an agent, who is an independent contractor, can be sued without his principal for a tortious act because though the agent is employed, his employer does not control his method of work. However, there are instances where an agent who is an independent agent may be sued jointly with his principal. These are:-

a.      Where the employer authorised the tortious act,

b.     Where the mater or principal authorised the acts, which are intrinsically dangerous or a statutory breach of duty as in the case here. To support this contention reliance was placed on the case of ISC Services Ltd v G.C. Ltd (2006) 6 NWLR (Pt.977) 481.

37.                       Counsel also submitted that the action of the 1st defendant was authorised and done at the behest of the 2nd defendant/applicant and 2nd defendant should not be allowed to run away when the court has not heard him yet.

38.                       Counsel also submitted that the court of appeal further state that one way of determining how joint liability in tort arises is to see whether the cause of action against each tortfeasors is the same. If the same evidence would support an action against each, they are joint tortfeasors. Thus, an agent who commits a tort on behalf of his principal and the principal are joint tortfeasors. So are the servant who commits a tort in the course of his employment, and his master; so are independent contractor who commit a tort and his employer in these cases in which the employer is liable for his independent contractor; so are persons whose respective shares in the commission of a tort are done in furtherance of a common design. To support this contention counsel relied on the case of Eze v Gearge (1993) 2 NWLR (Pt.273) 86.

39.                       In concluding his submission counsel submitted that the claimant’s case has disclosed reasonable cause of action against the 2nd defendant/applicant and should be called upon to enter his defence. Counsel urged the court to refuse the application for this case to be heard on the merit, with the 2nd defendant putting up his defence in compliance with the rules of court.

COURT’S DECISION:

40.                       I have considered the preliminary objection as well as the entire processes so far filed in this suit.

41.                       It is to be noted that counsel for the 1st defendant informed the court of non-objection to the 2nd defendant/applicant’s motion on notice.

42.                       From the prayers in the preliminary objection by the 2nd defendant/applicant, the applicant is challenging the jurisdiction of this court to hear and entertain this suit and the 2nd defendant/applicant was wrongly joined in this suit.

43.                       The objection to jurisdiction of this court to hear and entertain this suit is predicated on existence of facts of the case disclosing multiple cause of action on employment and fundamental rights. Counsel for the 2nd defendant/applicant while heavily placing reliance on the cases of Eguonu V B.R.T.C (supra), Sea trucks Nigeria Ltd. v. Anigboro (supra), Nwanze BV NRC (supra), submitted that for the claimant’s action to be properly before the court he must file two separate actions, one of suspension and payment of salary and another on detention of the claimant which was as a result of breach of his fundamental right.

44.                       In law Jurisdiction of court is the authority which a court has to decide matters that are litigated before it. What determines the jurisdiction of the court to adjudicate over a matter is strictly circumscribed by the provisions of the enabling statute. See Dingyadi v. I.N.E.C. (201l) 10 NWLR (Pt. 1255) 347 ; Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172.

45.                       The issue of jurisdiction is very fundamental and radical. Jurisdiction is the bedrock of litigation. Where it is lacking, there is want of competence on the part of the court to try the cause or matter. Proceedings embarked upon without the needed jurisdiction are a nullity, and are liable to be set aside if there is appeal, notwithstanding how well conducted the proceedings are. See Eze v. PDP (201 9 ) 1 NW LR ( Pt. 1652 ) 1 ; Gwede v. I.N.E.C. (2014) 18 NW LR ( Pt. 1438 ) 56.

46.                       In exercising judicial powers, courts or tribunals must be guided by the general determinants of jurisdiction. They are:-

(a) The statute establishing the courts/tribunal.

(b) The subject matter of litigation.

(c) The litigating parties.

(d) The procedure by which the case is initiated.

(e) Proper service of process.

(f) Territory where the cause of action arose or, as the case may be, where the defendant resides.

(g) Composition of the court/tribunal.

47.                       If any of the above is lacking, then the subject matter, the parties or the composition of the court/tribunal is defective which may lead to a nullity. See Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172.

48.                       Lest I forgot, it is essential to mention here without much ado that in order to determine whether a cause of action falls within the jurisdiction of a court as provided for in the Constitution or the statute that created it, the originating processes commencing the action become the focal point as it is backbone of the action and what determine jurisdiction. See the case of AONDOAKAA V. OBOT (2022) 5 NWLR (Pt. 1824) 523 and  ODUAH V. OKADIGBO (2019) 3 NWLR (Pt. 1660) 433

49.                       Under section 254C(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, only the National Industrial Court of Nigeria has jurisdiction over suspension of employee in contract of employment or make order for payment of unpaid salaries. The court is also empowered to deal with any issue of fundamental right arising from or connected with contract of employment.

50.                       However, the NICN does not have jurisdiction to entertain an action brought under the Fundamental Rights (Enforcement Procedure) Rules, when the issue is that of enforcement of fundamental right or securing of the enforcement thereof which is the main or principal claim and not an accessory claim. Where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, but bordering of issues on contract of employment or issues connected there with, the jurisdiction of the court can be properly invoked. In the instant case, the main claim of the claimant borders on his suspension from work and payment of his salaries from the date of his suspension to date. The issue of breach of fundamental right as it relates to alleged arrest and detention of claimant by the police are issues connected with the claimant’s employment (suspension) and are ancillary to the main claims bordering on suspension and payment of salary. Since the issues of arrest and detention arose as a result of suspension of the claimant the issues being ancillary and intractably linked or connected with the facts of suspension and non-payment of salary this court has the requisite jurisdiction to entertain same. Notwithstanding that the facts gives birth to both cause of action relating to employment and breach of fundamental rights.

51.                       The cases relied by the 2nd defendant/applicant are not helpful to the objection, the cases are more in support of the claimant’s case. As the cases are unanimous that where ancillary or incidental or accessory claim or claims are so inextricably tied to or bound up with the main claims before the court in a suit, the court cannot adjudicate over them where it has no jurisdiction to entertain the main claims if such incidental or ancillary claims cannot be determined without a determination at the same time of the main claims or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims. In the instant case, this court has jurisdiction over the main claims of suspension and payment of salary. It also has jurisdiction to entertain the alleged breach of fundamental right as ancillary to the main claims and there is no way the ancillary claim can be determined without reference to the main claim. The issue of the claimant’s fundamental right against arrested and detention in reliefs b and d, could not be determined in isolation of the other reliefs, which were based on the suspension and payment of salary. See Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517, Jack v. University of Agriculture, Makurdi (2004) 5 NWLR (Pt. 865) 208.

52.                       To insist on bringing separate actions as contended by counsel for the 2nd defendant/applicant it will amount to multiplicity of action which is deprecated in law.

53.                       Furthermore, the claimant’s action as it is presently constituted is not for enforcement of fundamental right under the fundamental rights enforcement rules. The claimant’s action was instituted via a general form f complaint as provided for under order 3 of the National Industrial Court (Civil Procedure) Rules, 2017. This means this case was brought using due process of law.

54.                       Having found that this court is well clothed with jurisdiction to entertain the claimant’s suit as it is properly constituted and there is no feature that deprived the court of power of adjudication, I now turn to the issue of propriety of joining the 2nd defendant as a party to this suit.

55.                       The 2nd defendant/applicant is also of the view that it ought not have been made a party to this suit as it is not a party to the contract of employment between the claimant and the 1st defendant. The 1st defendant being an independent contractor, the 2nd defendant should not be held vicariously liable for its acts. The claimant has also not disclosed reasonable cause of action against the 2nd defendant/applicant.

56.                       The claimant on its part maintained that the 2nd defendant is a proper party in this suit being an employer of the 1st defendant it is liable for the acts of the 1st defendant. It is also the position of the claimant that all the interaction that led to institution of this suit were done at the premises of the 2nd defendant under the supervision of the officials or personnel of the 1st and 2nd defendant. It was also stated that a reasonable cause of action has been disclosed against the 2nd defendant/applicant and it should not be allowed to run away from liability.

57.                       It appears to me there is consensus between the parties that a party who is not a privy to a contract should not be held liable in respect of the contract to which he is not a party to. However, the claimant while relying on Iyare V Bendel Feeds Ltd (supra) stated that there is exception to the general rule on privity of contract. As between employer and independent contractor, the employer will be liable for torts committed by the independent contract like in the case at hand.

58.                       A careful perusal of the statement of fact which in law is the document the court is obliged to look at this stage of proceeding to determine cause of action and propriety of joining 2nd defendant as a party in this suit will clearly show that, contrary to submission of counsel for the claimant, the statement of facts which claimant is bound by clearly shows that the 1st defendant was the one that ordered or directed for the arrest of the claimant based on which he was detained for three days. It is also interesting to note that the arrest of the claimant was effected at his residence in Mfamosing and not at the premises/plant of the 2nd defendant as the counsel for the claimant has stoutly argued. This is supported by paragraph 15 of the statement of facts. Based on this finding there is nothing to connect or linked the 2nd defendant with arrest and detention of the claimant by the police. There is nothing in the statement of facts to make the 2nd defendant/applicant to be vicariously liable for the alleged arrest and detention of the claimant at Area Command Akampa, Cross River State. As it has not been shown that the arrest and detention of the claimant was at the instance of the 2nd defendant/applicant or it ordered the said arrest and detention.

59.                       On reasonable cause of action, the law is well settled that a cause of action is the factual situation which a claimant relies upon to support his claim, recognized by the law as giving rise to a right capable of being enforced against the defendant. It is the entire set of circumstances giving rise to an enforceable claim. See Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) 261.

60.                       In order to determine existence or otherwise of a cause of action, the court is required to examine the averments in the pleadings reliefs being sought. In the instant case, the claimant has categorically stated that he is not suing the 2nd defendant in respect of suspension or payment of salary. The 2nd defendant was joined in this suit to answer allegation of arrest and detention of the claimant for three days at Area Command Akampa, Cross River State. It is clear to me the facts as disclosed by the pleading of the claimant shows that the alleged arrest and detention of the claimant was at the instance of the 1st defendant/applicant in view of the clear pleading of the claimant there is no cause of action disclosed against the 2nd defendant by the claimant as the claimant has not stated factual situation to link the 2nd defendant with arrest and detention of the claimant for three days to warrant joining the 2nd defendant/applicant as a party in this suit. Furthermore, the statement of te claimant that all interaction leading to institution of this suit took place at 2nd defendant premises or plant is not enough to justify inclusion of the 2nd defendant/applicant in this suit without specifying in the pleadings facts against the defendant that can justify joining 2nd defendant as a party in this suit.

61.                       I view of all I having saying above and my finding that the 2nd defendant was wrongly joined in this case as there are no fats disclosed on the role played by the 2nd defendant in the alleged arrest and detention of the claimant.

62.                       In the circumstances the name of 2nd defendant/applicant is hereby struck out from this suit for non-disclosure of cause of action against it.

63.                       I make no order as to cost.

64.                       Ruling is hereby entered accordingly.

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

I. G. Akiki, Esq; for the claimant

M. J. Ihua-Maduye, Esq; for the 1st defendant holding brief of Affam Efuna Okeke, Esq;

A.G. Robert for the 2nd defendant/Applicant