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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP: HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: January 12, 2016 SUIT NO. NICN/LA/342/2014 BETWEEN ZENITH BANK PLC - CLAIMANT AND MR OBARO ODEGHE - DEFENDANT REPRESENTATION Aanu Ogunro, with Uche Uzoagwu for the claimant. Elo Adhekpukoli for the defendant. RULING The claimant filed this complaint against the defendant on the 13th August 2014 claiming as follows: a) The sum of N30,000,000 (Thirty Million Naira) only being the total principal sum (less interest) of mortgage loan taken by the defendant on 31st December, 2007 in the cause of his employment with the claimant. b) The sum of N19,000,000 (Nineteen Million Naira) only being the total principal sum (less interest) of mortgage loan taken by the defendant on 21st March 2007 in the cause of his employment with the claimant. c) The sum of N6,000,000 (Six Million Naira) only being the total principal sum (less interest) of employee personal loan applied for by the defendant on 14th November 2005, approved by the claimant on 21st November 2005 and taken by the defendant on 29th November 2005 in the cause of his employment with the claimant. d) Interest in the loan in a-c above totaling the sum of N55,000,000 (Fifty Five Million Naira) at the prevailing market rate of 21% per annum from January 15, 2008 when the defendant resigned from the bank until judgement is given and thereafter at the rate of 10% per annum on the judgement debt. e) The sum of N952,000 being the unamortised value of 27 KVA Generator installed by the claimant in the defendant’s private residence. Accompanying the complaint is the statement of facts and other accompanying processes together with a motion for summary judgement. The defendant entered appearance and filed his statement of defence and a counterclaim, counter affidavit together with other accompanying processes. He counter claimed as follows: a. The sum of N17,812,722.162.23 (Seventeen Billion, Eight Hundred and Twelve Million, Seven Hundred and Twenty Sixty Two Thousand, One Hundred and Sixty Two Naira, Twenty Three Kobo) as his severance entitlement. OR IN THE ALTERNATIVE b. Any sum as may be determined by a Court appointed Special Referee in accordance with Order 18 of the National Industrial Court Rules, 2007, to calculate and determine the monetary value of the counter claimant’s 100% severance entitlement based on paragraphs 17.7 and 17.10 (a) & (b) of the Employee Handbook. The court suo moto raised the issue of jurisdiction and directed counsel to file written addresses on whether the court is empowered to hear and determine this matter. The claimant’s address is dated 24th February 2015 and filed same day. The defendant’s address is dated 9th April 2015 and filed on the 13th April 2015. The claimant’s reply on point of law is dated 9th June 2015 and filed same day. The parties adopted their written submissions on 2nd November 2015. Learned counsel to the claimant began by giving a summary of the facts stating that the defendant was an employee of the claimant whose resignation has been held to be valid by the judgement of the Lagos High Court in Suit No ID/1088/2009. He stated that the loans and a 27 KVA Generator were obtained by the defendant in the course of his employment with the claimant. Counsel then submitted two issues for determination as follows: I. Whether this Honourable Court has the jurisdiction to entertain the claimant’s suit as constituted. II. Whether this Honourable Court has the jurisdiction to entertain the defendant’s counter claim as constituted. He submitted that the subject matter of the claimant’s action is its right as an employer to be paid back monies given to the defendant its employee as loans which became due by reason of disengagement. He argued that it amounts to a debt. He further submitted that the subject matter falls within Section 254C (1) (a) of the 1999 Constitution as amended and the court has jurisdiction to entertain and determine the action. Counsel argued that this action is not statute barred. He submitted that by Section 8 (1) (a), of the Limitation Law of Lagos State CAP L67 2003 actions founded on simple contract shall not be brought after the expiration of six years from the date of accrual of cause of action. He referred to Section 38 (1) of the Limitation Law of Lagos State and submitted that where the person liable has acknowledged the debt, the right of action is deemed to have accrued on the date of acknowledgement citing Thadani v National Bank of Nigeria Ltd [1972] 1. SC 75 at 80. He submitted that the defendant acknowledged his indebtedness of the loan sums during cross-examination on 9th June 2010 at the trial in Suit No ID/1088/2009. That this is within the six years period stipulated in Section 8 (1) (a), of the Limitation Law of Lagos State. It was counsel’s submission that this court does not have jurisdiction to entertain the defendant’s counter claim or to interprete the judgement of the Lagos State High Court, being a Court of co-ordinate jurisdiction. He cited R.A.S.C. v Akib [2006] 13 NWLR (Pt 997) 333 at 352, F.R.I.N v Gold [2007] 11 NWLR (Pt 1044) 1 at 19, Obi v INEC [2007] 11 NWLR (Pt 1046) 560 and urged the court to strike out the counter claim. Learned counsel to the defendant also gave a factual background. He stated that the defendant was an employee of the claimant before he voluntarily resigned. That he instituted an action in the Lagos High Court Suit No ID/1088/2009 against the claimant for a declaration that he is entitled to his severance benefits amongst other reliefs. That in the final judgement, the High Court declared that he is entitled to his severance benefits and struck out the claimant’s counter claim on the issues of mortgage loan facilities and the 27 KVA Generator. Counsel then raised the following issues for determination: I. Considering the nature of the claimant’s claim, Sections 272 and 254C (1) of the 1999 Constitution (as amended) and the final judgement of the Lagos State High Court in Suit No ID/1088/2009, does the National Industrial Court have jurisdiction to determine the claimant’s claim? II. Considering the provisions of Section 254C (1) (k) of the 1999 Constitution (as amended), Order 18 Rule 1, of the National Industrial Court Rules, 2007, and the declaratory order of the High Court of Lagos State in Suit No ID/1088/2009 affirming the defendant’s right to his severance entitlement, does the National Industrial Court have the jurisdiction to determine defendant/counter-claimant’s counter-claim? He submitted that the claimant’s claim has been determined in the final judgement delivered by the High Court in Suit No ID/1088/2009; and the claimant has not filed an appeal against the decision. He further submitted that by the hierarchy of courts established in Section 240 of the 1999 Constitution, the National Industrial Court cannot sit on appeal over the decision of a State High Court. He argued that this action is an abuse of the judicial process. He cited Diginyandi v INEC (No. 1) [2010] 18 NWLR (Pt 1224) 1 at 74, Saraki v Kotoye [1992] 7 NWLR (Pt 264) 156 at 188-189, Pakky Balogun v Alhaje Ode [2007] LPELR-719 (SC), Dakolo v Dakolo [2011]LPELR-915 (SC), African Re Corp v JDP Construction Nig Ltd [2003] 13 NWLR (Pt 838) 635. Learned counsel argued that this action is for recovery of an alleged mortgage sum and accrued interest arising from a simple mortgage contract between a mortgagor (claimant) and a mortgagee (defendant). He contended that the grant of loans by the claimant to employees or otherwise is part of the claimant’s business of banking and is not an employment matter. He cited UBN Plc v Integrated Timber & Plywood produces [2000] LPELR-10629 (CA), FBN v NTIA [2014] LPELR-24104. He submitted that it is the High Court that has jurisdiction to entertain an action founded on banker/ customer relationship. He referred to Section 254C (1) of the 1999 Constitution and submitted that it does not confer jurisdiction on this court to determine matters arising from banker/customer relationship. He submitted that the counterclaim is a labour dispute arising from non payment of severance benefits by the claimant which falls within Section 254C (1) of the 1999 Constitution. He further submitted that the declaratory judgement of the High Court in Suit No ID/1088/2009 affirmed the right of the defendant/counterclaimant to 100% severance benefit in line with the employee handbook. Counsel stated that the counter claim seeks to invoke the jurisdiction of the court to ascertain the specific amount due to the counter claimant. He cited Okoya v Santilli [1990] 2 NWLR (Pt 131) 172 and then urged the court to dismiss the claimant’s claim for want of jurisdiction and hear and determine the counter claim on its merit. Replying on points of law, learned counsel to the claimant stated that the High Court did not determine the issues raised in its counter claim having struck it out on the basis that leave was not obtained before it was filed. He argued that as such the claimant can go back to the court to examine and determine those rights citing Alor v Ngene [2007] 17 NWLR (Pt 1062) 163 at 177. He submitted that the claimant’s claims falls within Section 254C (1) of the 1999 Constitution as they are related or connected with labour and employment and that there is no intention between the parties to create a banker/customer relationship. Counsel further submitted that the counter claim is caught by the doctrine of res judicata. He submitted that the High Court having given a final decision on the same issue of severance benefits, the defendant is estopped from re-litigating the issue by raising the claim for the sum of money. He submitted that the jurisdiction of the court is ousted citing Agbasi v Obi [1998] 2 NWLR (PT 536) 1 at10, Dzungwe v Gbishe [1985] 2 NWLR (Pt 8) 528 at 537, Makun v F.U.T. Minna [2011] 18 NWLR (Pt 1278) 190 at 227, Ukaegbu v Ugoji [1991]6 NWLR (Pt 196) 127. Learned counsel further submitted that the counter claim is caught by Section 8 (1) of the Limitation Law of Lagos State which prescribes that an action in the realm of contract shall not be brought after the expiration of six years from the accrual of the cause of action. He argued that the cause of action arose on January 15, 2008 when the defendant resigned from the employment of the claimant and the counter claim filed on the 17th October 2014 which is six years and nine months from the accrual of cause of action. He submitted that the counter claim is statute barred and urged the court to strike out and/or dismiss the counter claim. I have carefully considered the originating processes filed and the written submissions of the parties. The issue of jurisdiction is fundamental and ought to be taken at the earliest opportunity. See Magaji v Matari [2000] 5 SC 46 at 55, Popoola Elabanjo v Dawodu [2006] All FWLR (Pt 328) 604 at 646. One of the conditions under which a court can exercise jurisdiction is when the subject matter is within its jurisdiction and there is no feature in the case that prevents the court from exercising it. See Madukolu v Nkemdilim [1962] 1 ANLR 587. It is trite law that it is the claim of the claimant that determines the jurisdiction of the court. The court only needs to consider the complaint and the statement of facts. See A-G Anambra v A-G Federation [1993] 6 NWLR (Pt 302) 692, A-G Federation v Oshiomhole [2004] 3 NWLR (Pt 860) 305. The jurisdiction of this court is in the main governed by section 254C (1) (a- l), (2), (3), (4) & (5) of the 1999 Constitution as amended. I will for the purpose of this ruling reproduce Section 254C (1) (a) & (k) as follows: (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from the workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; (k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits, and any other entitlement of any employee, worker, political or public office holder, judicial officer, or any civil or public servant in any part of the Federation and matters incidental thereto. The jurisdiction of this court is subject matter based. A careful look at the claimant’s claims before the court shows that claims a to e are in respect of mortgage and personal loans the claimant granted the defendant whilst he was still in its employment. A look at the statement of facts reveals that the averments are not related to or connected with any dispute arising from payment or non payment of salary, pension, gratuity, allowances, benefits, other entitlements or employment. The averments in the claimant’s statement of facts are in respect of the loans the defendant was given while in employment and his alleged indebtedness. Paragraphs 11 & 12 of the statement of facts states as follows: 11. One of the conditions for all the loans is that the loan is immediately repayable should the defendant leave the service of the claimant for any reason other than normal retirement and interest may be charged at customer rate the date the defendant leaves the service. 12. The customer interest rate as at January 15, 2008, the date the defendant resigned his appointment from the bank was 21% per annum. The court is not empowered to entertain suits relating to loans and commercial transactions as they are not within the scope of section 254C(1) (a) & (k) of the 1999 Constitution as amended. I find that the claims of the claimant do not come within the jurisdiction conferred on this court by section 254C (1) (a) & (k) of the 1999 Constitution as amended. I therefore decline jurisdiction to entertain this matter. Regarding the defendant’s counter claim, I agree with the submissions of learned counsel to the claimant that the counter claim is caught by the doctrine of res judicata. The Lagos State High Court has given a final decision on the same issue of severance pay in Suit No: ID/1088/2009. The decision is conclusive between the parties. I hold that the counter claim is caught by the rule of res judicata and the jurisdiction of the court to entertain the matter ousted. In the light of this, there is no further need to rule on the issue of limitation. For all the reasons given above, both the claimant’s suit and the defendant’s counter claim are hereby struck out for want of jurisdiction. I make no order as to costs. Ruling is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae