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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

 

DATED: 16TH JULY, 2025                                 SUIT NO. NICN/ABJ/03/2024

 

BETWEEN 

 

MR. IGBOKE WILLIAMS MBOTO      -                                  CLAIMANT

 

AND 

 

  1. NIGERIA IMMIGRATION SERVICE 
  2. COMPTROLLER GENERAL, NIS                                            
  3. CIVIL DEFENCE, CORRECTIONAL,                        DEFENDANTS

FIRE AND IMMIGRATION SERVICES BOARD

  1. THE MINISTER OF INTERIOR                                  
  2. ATTORNEY GENERAL OF THE FEDERATION

 

 

REPRESENTATIONS:

S.D. Kalat Esq., with Ndubuisi Kalu Esq., for the Claimant

Bassey Eunice A. Esq., for the 3rd Defendant

Oyebisola Bajulaiye Esq., with Julius Yenda Hamlak Esq., for the 5th Defendant

Habibatu U. Chime Esq., for the 5th Defendant

 

RULING

  1. The 3rd Defendant/Applicant filed a Notice of Preliminary Objection dated the 17th day of February 2025 and filed on the 20th day of February 2025 this Court for the following orders:
  2. An order for this court to strike out the name of the 3rd defendant in the suit;
  3. And for such further order(s) as the court may deem fit to make in the circumstances.
  4. The twin grounds upon which applicant is seeking the reliefs are:
  5. That the claimant’s Originating processes do not disclose any cause of action against the 3rd defendant.
  6. That there is no link between the claimant and the 3rd defendant.

 

  1. The Notice of Preliminary Objection is supported by surprisingly what is tag as a 3rd Defendant Witness Statement Oath of 32 paragraphs and also accompanied by a written address which the Applicant adopted as his argument in support of the Notice of Preliminary Objection.

 

 

  1. Counsel to Claimant/Responded in reaction to the Notice of Preliminary Objection also filed a 10-paragraph counter affidavit accompanied with a written address all dated 4/03/2025 and filed on the same date. Counsel to the Respondent relied on the counter affidavit and adopted the written address as Respondent’s argument in support of the counter affidavit.

 

 

APPLICANT’S SUBMISSION IN SUPPORT OF THE NOTICE OF PRELIMINARY OBJECTION

  1. In arguing the Notice of Preliminary Objection Counsel to the 3rd Defendant/Applicant formulated two issues for determination of the Court viz:
    1. Whether this suit as presently constituted discloses any cause of action against the 3rd Defendant by Claimant
    2. Whether the 3rd Defendant is a necessary party to the suit.

 

  1. In arguing the issue one Counsel submitted that the claimant action did not disclose any reasonable cause of action against the 3rd defendant. It is the argument of counsel that a reasonable cause of action connotes:
    1. The wrongful act of the defendant sued, and
    2. The consequence damage arising from the wrongful act.

 

  1. Counsel went on and stated because the above elements are not present in the claimant’s suit it renders the suit incompetent and usurps this Court of jurisdiction. Counsel cited in support of his assertion the case of Alh. Aminu Ibrahim v. Felix Osim [1998] 3 NWLR (Pt. 82) 257 and Ojukwu v. Yar’Adua [2009] 28 NSCQR (Pt. 1) 492. He posited that from the totality of the Claimant’s processes there is no wrongful act of the 3rd Defendant shown nor damage arising from wrongful act of the 3rd Defendant.

 

  1. Respecting issue two Counsel submitted that the 3rd Defendant is not a necessary party to this suit. Counsel referred this Court to UBA v. BTL Industries Ltd [2004] 18 NWLR (Pt. 904) 221 which states that a necessary party is one whose absence a question in the action cannot be effectually and completely settled and who is likely to be adversely affected by the decision reached in his absence. And because no wrong is shown to have been committed by 3rd defendant, it shows that 3rd defendant is not a necessary party. He urge the Court to strike out the name of the 3rd Defendant.

 

CLAIMANT/RESPONDENT SUBMISSION IN OPPOSITION TO 3RD DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION

  1. In opposition to the Notice of Preliminary Objection learned Counsel to Claimant formulated a lone issue for the Court’s determination thus;

 

Whether this suit has disclosed a reasonable cause of action against the 3rd Defendant.

 

  1. Counsel started by answering the issue in the affirmative. He referred the Court to paragraphs 5, 6, and 7 of the counter affidavit which has disclosed the fact that 3rd Defendant is the board responsible for the appointment, promotion and discipline of the 1st, 2nd, and 3rd Defendants. Counsel posited that the statement of facts out lines the specific legal theories that form the basis of their claim against the Defendant. He placed reliance on the case of Ajayi v. Military Administrator, Ondo State [1997] 5 NWLR (Pt. 504) 237. Counsel argued that it is immaterial that applicant was not mentioned directly or involved in the wrongful termination of the Claimant but what matters is that the 3rd Defendant has always been the board responsible for the appointment, promotion and discipline of the officers of the 1st and 2nd Defendants and 4th Defendant is the chairman of the 3rd Defendant by virtue of its supervisory role. Counsel urge the Court to dismiss the Notice of Preliminary Objection.

 

4TH DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION

  1. The 4th Defendant also filed a Notice of Preliminary Objection dated the 22nd day of January 2025 and filed on the 23rd January 2025 praying the Court to strike out the name of the 4th Defendant in this suit.

 

  1. The Notice of Preliminary Objection is predicated on the following grounds:

 

  1. That the claimant’s originating processes does not disclose any cause of action against the 4th defendant
  2. That there is no lis between the claimant and the 4th defendant.

 

  1. The Notice of Preliminary Objection is supported by a 4-paragraph affidavit and a written address which Applicant adopted as his argument in support of the Notice of Preliminary Objection. 

 

  1. The Claimant/Respondent in his response filed a 12-paragraph counter affidavit dated and filed on the 3rd day of February 2025.

WRITTEN SUBMISSION OF 4TH DEFENDANT/APPLICANT IN SUPPORT OF THE NOTICE OF PRELIMINARY OBJECTION

  1. In his submission, Counsel formulated a lone issue for determination to wit:
    1. Whether this suit as presently constituted discloses any action against the 4th Defendant by the Claimant 
    2. It is the submission of the 4th Defendant that the disclosure of the requisite reasonable cause of action which has the elements of:
      1. The wrongful act of the defendant sued; and 
      2. The consequent damage arising from the wrongful act

 

  1. He posited that the above is a condition precedent to the Court assuming jurisdiction over a matter. Counsel referred this court to the cases of Alh. Aminu Ibrahim v. Felix Osim [1998] 3 NWLR (Pt. 82) 257 and Ojukwu v. Yar’Adua [2009] 28 NSCQR (Pt. 1) 492. It is the position of Counsel that the totality of the Claimant’s processes in this matter does not show any wrongful act of the 4th Defendant nor the damage arising from any wrongful act of the 4th Defendant. Counsel argued that the 4th Defendant is an organ of the executive and not a statutory establishment as pleaded by Claimant and not in charge of appointment, promotion and discipline of officers in the paramilitary services. Counsel also submitted that this suit can be effectively determined without the presence of the 4th Defendant. He urge the court to hold that Claimant is bound by their pleadings in this matter, the Claimant’s pleadings have not disclosed any wrongful act of the 4th Defendant to make it a necessary party in this suit, the presence of a party in a suit against whom there is no cause of action affects the proper constitution of the suit for adjudication and that where no cause of action is established on a party to a suit the Court strikes out the name of that party from the suit.

 

  1. In arguing issue two, Counsel submitted that the 4th Defendant is not a necessary party. He referred this Court to UBA v. BTL Industries Ltd [2004] 18 NWLR (Pt. 904) 221. Counsel submitted that the Claimant dismissal by the 1st Defendant means that the presence of the 4th Defendant is not required for effectual and complete determination of this suit and neither will the 4th Defendant be affected by the decision reached in their absence. He urge the Court to grant this application.

CLAIMANT/RESPONDENT WRITTEN SUBMISSION IN OPPOSITION TO 4TH DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION.

  1. In trying to argue this case Counsel to Claimant formulated a lone issue to wit:

Whether this suit has disclosed a reasonable cause of action against the 4th defendant.

  1. On the sole issue learned Counsel submitted that in Claimant’s statement of facts paragraph 5 disclosed that the 4th Defendant is a federal Minister that oversees the activities of the 1st, 2nd, and 3rd Defendants and also that the 4th defendant is the chairman of the board of the 1st, 2nd and 3rd defendants by reason of his supervisory role. Counsel therefore urge the Court to dismiss this Notice of Preliminary Objection in the interest of justice. 

COURT’S DECISION

  1. I have carefully gone through the two preliminary objections raised by the 3rd and 4th Defendants praying this Court to strike out their individual names as parties in this suit. The reliefs and the arguments in the Notice of Preliminary Objections are the same and surprisingly even the written briefs are substantially a replica of each other. In the light of the foregoing, I invoke the powers conferred on this Court to consolidate the preliminary objections moved and the written addresses. It therefore follows that under Order 18 Rule 3 and 4 of the Rules of this Court, this Court is going to deliver a ruling to cover both Notice of Preliminary Objections. On this basis, and to my mind the lone issue for determination in these applications is:

 

Whether a cause of action has been established against the 3rd and 4th Defendants to cloth this Court with jurisdiction to entertain this suit.

  1. For want of definition, the phrase cause of action means simply factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a Claimant to a remedy against a Defendant. It consists of every fact which would be necessary for the Claimant to prove, if traversed, in order to support his right to judgment of Court. The clause is also seen as the fact or combination of facts which give rise to a right to sue. See Dantata v. Mohammed [2000] 7 NWLR (Pt. 664) 176. Putting it differently, a cause of action means the factual situation stated by the Claimant, which if substantiated, entitles him to a remedy against the Defendant. What I am trying to say in all of this is that a cause of action is a state of facts that entitles a party to maintain an action in court. This state of facts may be a primary right of the Claimant actually (a) violated by the Defendant; or the threatened violation of such right which violation the Claimant is entitled to restrain or prevent, as in the case of actions or suits for (b) injunction; or it may be that there are some doubts as to some duty or the right beclouded by some apparent adverse right or claim, which the (c) claimant is entitled to have cleared up that he may safely perform his duty or enjoy his property. See Ayeni v. A.-G., & Commissioner of Justice, Ekiti State [2002] FWLR (Pt. 110) 1781; Owena Bank Plc v. Olatunji [2002] 12 NWLR (Pt. 781) 259; Labode v. Otubu [2001] 7 NWLR (Pt. 712) 256.

 

  1. Therefore in determining a cause of action, the Court is not obligated to consider seriatim all averments in the pleadings. It is sufficient that the Court looks at and refer to few averments that form the gravamen of the claim. It goes without saying that in determining whether there exists a reasonable cause of action the court is to confine itself to the complaint and the statement of facts. See Okafor v. Bende Divisional Union, Jos Branch [2017] 5 NWLR (Pt. 1559) 385.

 

  1. In the case of the 3rd Defendant the affidavit that accompanied the Notice of Preliminary Objection is a 3rd defendant’s Witness Statement on Oath found on pages 178 – 181 of the record of this Court. I also carefully discovered that Counsel to 3rd Defendant’s while moving this application on the 25th May 2025 deliberately omitted to rely on any affidavit in support of the Notice of Preliminary Objection. I find that the use of a witness statement on oath to support a motion is unknown to the practice and procedure of this Court. See Order 17 Rule 1 (5). However, Order 18 Rule 2 (2) allows this Court to hear a preliminary objection raised to challenge the jurisdiction of the Court. The Rules of this Court do not explicitly mandate an affidavit for all preliminary objections. The necessity of an affidavit depends on whether the objection raised is based on law or facts. In the case of Mr. Kehinde Oduneye v. FRN [2014] LPELR-23007 (CA) the court held that:

"A preliminary objection may or may not be supported by an affidavit. If the preliminary objection is on law, an affidavit is not necessary. If it is on facts, then an affidavit is mandatory. In either case, the grounds of the objection must be clearly stated."  

  1.  In the case of Bello v. National Bank Of Nigeria [1999] 6 NWLR (PT. 246) 206, it was held that there is no mandatory requirement under the Rules of Court for a preliminary objection to be accompanied by an affidavit except where the party raising the objection has proceeded by way of Motion on Notice. See also Order18 Rules 2(2) of the Rules of this Court. The Court have further held authoritatively that where a Notice of Preliminary Objection is based on documents already before the Court, no evidence whether oral or documentary shall be allowed. See Amah V. Nwankwo [2008] All FWLR (Pt.411) 879 @ 900 Paras B – F; Contract Resource Nig. Ltd & Anor v. UBA Plc [2011] LPELR 8137. The irregularity notwithstanding, the NPO remain valid even when the 3rd defendant wso is struck out as to do otherwise to my mind is a moot point of an academic nature. See Obi-Odu V. v. Duke (No.2) [2005] 10 NWLR (PT.932) P.105; Oyeneye v. Odugbesan [1972] 4 SC. P. 244; Bakare v. A.C.B. Ltd [1986] 3 NWLR (Pt.26) P.47; Nkwocha v. Gov. of Anambra State [1984] 1 SCNLR P.634. Accordingly, the 3rd Defendant witness statement on oath herein annexed to the 3rd Defendant’s Notice of Preliminary Objection is hereby struck out.

 

  1. Now coming to the substance of the 3rd Defendant preliminary objection, it is without any contestation that the objection hinges on the issues that this suit does not disclose any cause of action against the 3rd Defendant which also dovetail into the submission that the 3rd Defendant is not a necessary party. It is of interest to also note that in this Court we give due priority to the primacy of facts and look to the substance, not the form of the relationship or what the parties choose to call it. From paragraph 4 of the statement of facts the 3rd Defendant is described as a board responsible for appointment, promotion and discipline of officers. However, I discovered that no declaratory order is sought against the 3rd Defendant except the ancillary reliefs sought in paragraph 35 (e) - (h). No where is 3rd Defendant said to have played any role in the facts that gave rise to the case of the Claimant. I am mindful that in this Court, we have consistently turned down arguments of employers seeking to strike out heads or key officers of establishments on the ground that they are merely agents of the establishments. See Ogunbayo Oluwale Michael v. Fidelity bank Plc Unreported Suit No. NICN/La?350/2013 delivered on 13/12/2017. I must restate that this is different and distinct from the position of the Court in the case cited above. In the instant case the Claimant in the statement of facts shows nowhere the 3rd Defendant was involved in the employment of the Claimant nor involve in the given of directive to the Claimant. This is the same scenario that also played out in the case of the 4th Defendant. In the case of the 4th Defendant, it is in paragraph 5 that the 4th Defendant was described as one that oversees the activities of 1st Defendant and nothing more. Only to later see the Claimant claiming ancillary reliefs against the 4th Defendant. 

 

  1. From the foregoing I am persuaded that the 3rd and 4th Defendants from the facts pleaded in the statement of facts does not deserve to be part of this suit as no cause of action is disclosed against them. This I so find and hold.

 

  1. Accordingly, the Notice of Preliminary Objections are hereby upheld and the names of the 3rd and the 4th Defendants are hereby struck out.

 

  1. Ruling is hereby entered. There is no order as to cost.

 

 

                                                                                          ……………………………

                                                                                         Hon. Justice E. D. Subilim

                                                                                                       JUDGE