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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice F.I. Kole-Olalere - Judge Hon. Justice O.A Obaseki-Osaghae - Judge DATE: 12th JANUARY, 2011 SUIT NO. NIC/EN/06/2009 BETWEEN Andrew Monye - Claimant/Respondent AND Ecobank Nigeria Plc - Defendant/Applicant REPRESENTATION P.O. Okorare, for the claimant/respondent. With him are A.I. Ashemudara, O. Kalu, and Miss O. Foy-Yamah. Benjamin Atebe for the defendant/applicant. With him are O. Uwajeh and Miss Nwokedi RULING The claimant/respondent brought this action on the 10th of November, 2009 by complaint in Form 1 General Form of Complaint pursuant to Order 3 Rule 1 of the National Industrial Court Rules 2007. Also filed with the complaint are the statement of facts, list of documents to be relied on and the list of witnesses the claimant/respondent intends to call. The claimant/respondent’s claims are for: a. A. declaration that the purported termination of the claimant’s employment with the defendant vide a letter dated 9th September, 2009 and headed ‘SERVICES NO LONGER REQUIRED’ is invalid and contrary to his contract of employment. b. special damages in the sum of N962, 399.91 (Nine Hundrcd and Sixty two Thousand, Three Hundred and Ninety-Nine, Ninety-nine kobo only). Particulars of special damages I. September net salary N478.3 05.64 II. Unpaid 13th month salary N183,147.55 III. Leave Encashment N300,946.68 Total N962,399.91 c. Monthly net salary from October 2009 till date of judgment d. the sum of N100,000,000.00 (One Hundred Million) for general damages being losses suffered by the claimant for the wrongful termination of his employment. The defendant/respondent entered conditional of 12th January 2010 by filing a memorandum to that effect through its counsel Mr. Benjamin Atebe. The memorandum of appearance is by the respondent/applicant’s preliminary objection, affidavit in support of and written address on the preliminary objection. The respondent/ applicant is praying; for an order of the court striking out or in the alternative dismissing this action as presently constituted against the defendant applicant for want of jurisdition to try same; and for such order or other orders as this court may deem to make in the circumstances. The ground of the respondent/applicant’s objection is that this court lacks jurisdiction to entertain this suit. The affidavit in support was deposed to by Obiam U. Nwokedi, a legal practitioner in the law firm of Messrs Fidelity Law Firm Solicitors to the defendant/applicant. Essentially, averments in the affidavit are that the claimant/respondent was employed by the defend nt/applicant, which said employment was terminated on the 9th of September, 2009 while the claimant/respondent instituted this action on the 11th of November, 2009. The deponent averred further that the relationship that existed between the parties as one of a simple contract which does not fall within the jurisdiction of the lationa1 Industrial Court. That this suit does not fall within the contern lation of labour matters, trade disputes and collective agreements, enviromnent and conditions of work as provided for in the National Industrial Act 2006. Both parties agreed to argue this application on record and so counsel to the two pai ies each filed and exchanged written briefs for and against this applicat in. In the written address in support of this application, counsel to the respondtt/applicant contended that the issue for determination is whether this court is rested with jurisdiction to entertain the claim of the claimant. The learned ounsel submitted that it is trite that jurisdiction is conferred upon a court by statute and that a court of law cannot exercise jurisdiction outside that which is conferred upon it by statute, referring to I.C.H. Ltd v. C. S & R Ltd [2008] All FWLR (Pt. 400) 680 at 699 paras C —D where the Court of Appeal held as follows: Where the jurisdiction of a court is called to question in order to determine if jurisdiction was conferred on that court, the first port of call or point to be considered is the statute(s) creating such court. It is only where the court was clothed with jurisdiction by the statute creating it that other conditions or requirements of jurisdiction, for instance, parties, subject matter, time of suit, composition of court etc., would be considered. The learned counsel to the respondent applicant argued that jurisdiction of this court is found in section 7(l) of the NIC Act 2006 which does not cover the claims of the claimant respondent that are based on simple contract. He submitted that the claimant/ respondents claims as contained in his statement of claim filed before the court does not fall within the jurisdiction of this court. He referred to Onwudiwe v. Federal Republic of Nigeria [20O6] 10 NWLR (Pt. 998) (the page is not supplied). It is the respondent/applicant argument that the claimant/respondent vide his writ of summons and statement of fact seeks declaratory reliefs and damages based on the alleged wrongful determ tation of his contract of employment by the defendant applicant. To the respondent/applicant the reliefs are based on an alleged breach of a contractual agreement between the two parties in court which it submitted does not come within the jurisdiction of this court as provided in section 7(1) of the NIC Act 2006. The respondent/appIicant further submitted that the only option open to this court is to decline jurisdiction in this matter, citing Onwudiwe v. Federal Republic of Nigeria, supra. The respondent/applicant contended that it is trite that jurisdiction is determined by the claimant’s claim before the court to ascertai whether it comes within the jurisdiction conferred on the court, referrin to Integrated Timber & Plywood Products Ltd v. URN Plc [2006] All FWR (Pt. 32) 1792 SC Arguing, further, the respondent/applicant maintained that the claiman ‘respondent’s claim in his statement of facts is for alleged wrongful termina on of his employment which has nothing to do with labour related matters ut is a simple contractual agreement between an employer and its employee and hence that the claims are outside the jurisdiction of this court. The respondent/applicant referred to Amadiume v. Ibok [2006] All FWLR (Pt. 321)12: 2. As a result, the respondent/applicant urged this court to strike out or in the al ernative dismiss the claimant/respondent’s action in its entirety as it is apparen on the face of the claimant/respondent’s statement of facts that this court lacks jurisdiction to entertain the suit, citing NDIC v. CBN [2002] 7 NWLR (Pt. 766) C.A. (page not supplied), Okola v. Union Bank of Nigeria Plc [2004] 3 NWLR (Pt. 859) (page not supplied), Gombe v. PW (Nigeria) Ltd. [l995] 6 NWLR (Pt. 402) 402, Din v. Attorney-General of the Federation [1986] NWLR (Pt. 17) 147; and Alhaji Baba v. Habib Bank Nigeria Ltd [2001] 7 NWLR(Pt. 712) 496. Reacting to the preliminary objection, the claimant/respondent filed a counter-affidavit and written submission in opposition. The counter-affidavit is sworn to by one Mike Okoh a senior litigation officer in the firm of Punula Attorneys and Solicitors, counsel to the claimant/respondent in this suit. Essentially the facts deposed to are that the deponent is aware that there was an employment/labour relationship between the claimant respondent and the defendant/applicant before its wrongful termination which led to this suit. The deponent was informed by Ige Asemudura of counsel to the the claimant/respondent on this matter that this court has jurisdiction to hear and determine the instant suit being one relating to labour. Okoh averred that the preliminary objection is incomterirt a Coui does not ha the power to grant the relief sought to wit: siriking ou or in the alternat ze dismissing’ in view of the provisions of section 4 National Industrial Court Act, 2006. He averred further that it is in the interest ofusrice that th objection is dismissed and the substantive suit he heard and determi .ed, as the defendant/applicant will not be prejudiced by the refusal or dismissal of this objection. The claimant/respondent through his counsel also filed a written address against the preliminary objection in which he postulated these two issues for determi ation: (a) Whether this court has jurisdiction to hear and determine this suit; am (b) Whether the defendant’s application is competent. On issue one, learned counsel to the claimant/respondent submitted that this court has jurisdiction to hear and determine this suit. He posited that for a court to deter ine whether or not it has jurisdiction in a matter placed before it, its first porL of call is the statute creating the court, referring to I.C.H Ltd v. C.S & R Ltd supra. The learned counsel submitted that by the provisions of section 7(l)(a)(i of the National Industrial Court Act 2006, this court has jurisdiction to hear and determine this suit more so as the matter in their reliefs pertains to labour. Learned counsel reproduced the definition of “labour” in two dictionaries (Chambers Dictionary 1994 Edition at page 934 and Black’s Law Dict. 7th edition at page 878) to buttress his argument and reminded this court that at the claimant/respondent worked for the defendant/applicant, ernploying both physical and mental exertion in his work and for the purpose of earning Nages. Learned counsel urged this court to be circumspect in considering the submission of the defendant/applicant. The learned counsel to the claimant/respondent submitted that this court has the duty to interpret the words contained in the NIC Act 2006 (like in every other statute) in their ordinary and literal meaning, citing Attorney-General of Kano State v. Attorney-General of the Federation [2007] 6 NWLR (Pt. 1029) 164 at 188-189 where the Supreme Court held that, ‘it is not the duty of the court to go outsic: the words used in a statute to import an interpretation which may he or is con enient to the court or to the parties or to one of the parties.’ The claimant/respondent’s counsel submitted that the word lahour in section 7 ( 1 )(a)(i) of the NIC Act stands on its own without any other words thereby conferring; instant jurisdiction on this court in matters like this before it. The learned counsel drew the attention of this court to the insertion of comma after the word ‘labour’ which, according to him, makes it a separate and distinct jurisdiction. He submitted that in the construction of statute, a punctuation mark such as a comma is crucial. Learned counsel referred this court to the provisions of section 3(1) of the Interpretation Act Cap 123 Laws of the Federation of Nigeria, 2004 which provides that ‘puntuation forms part of an enactment, and regard shall be had to it accordingly in construing the enactment.’ Learned counsel, therefore, urged the court to have regaid to the use of comrna and hold that it has jurisdiction in this suit. To the Claimant/respondent, this court’s jurisdiction under section 7(1) of the NIC Act is not limited to labour in the sense of work or employment hut it include ‘trade unions and industrial relations.’ The claimant respondent argued hat courts have held that the word ‘include’ when used in a statute means ie provision is not exhaustive, referring to Nutter v. Accrington Local Board of Health (1878) 4 QBD 375. In the light of his argument above, the claimant/respondent submitted that his claim or the relief in the main suit comes within the jurisdiction of this court; and on the authority of Onwudiwe v. Federal Republic of Nigeria, supra, he submitted that ‘the moment the relief sought comes within the jurisdiction of the court as adumbrated by the facts, the court must assume jurisdiction. On issue two, learned counsel to the claimant/respondent submitted that the defendant /applicant’s application is incompetent and should be dismissed with substantial cost. His position is that the relief sought in the application is not known) the National Industrial Court Act, 2006. To the learned counsel, the defendant/applicant’s prayer is that this court should strike out or dismiss this action on the ground that this court lacks jurisdiction. To him, this relief contraveness the provision of section 24(2) of the Act which is mandatory by the use of ‘shall’ in the section. The learned counsel reproduced the section thus: No cause or matter shall be struck out by the court merely on the ground that such cause or matter was taken in the Court instead of the Federal High Court or the High Court of a State or of the Federal Capital Territory………. Learned counse1 to the claimant/respondent maintained that what this court should do is to transfer the matter to the appropriate court in line with the Rules of this court if it rules that it has no jurisdiction to try the matter. The claimant/respondent argued further that the defendant/applicant filed a Memorandum of ‘Conditional Appearance’ which process is not known to this court. He maintained that the Rules of this court particularly Order 8 Rule 1 requires that every person served with originating processes shall file a Mernorandum of Appearance and not a conditional appearance. He contended that this i a special court and its rules must strictly be obeyed and followed. He referred e court to Mobil Producing (Nig) Unltd v. Monokpo [2003] 18 NWLR (Pt. 852) 346 at 433 in which the Supreme Court held that a court process which is filed but not known to law is null and void the initio. The learned counsel to the claimant/respondent added that the Supreme Court in that cited case emphasized that the Rules of Court should be obeyed and counsel‘s innovation such as the instant one must give way to the rules. The claimant/respondent continued that the worst part is that the defendant/applicant never filed a defence to this suit. He contended that by the provision of Order 8 Rule 5(1) of the Rules of this Court. 2007. This court may proceed to hear the claimant/respondent’s claim. He, therefore, urged the court to dismiss the defendant/applicant’s application, the Memorandum of Conditional Appearance and proceed to trial on this matter. On the whole, the claimaint /respondent urged this Court to assume jurisdiction, dismiss the application of the defendant/applicant and proceed to trial — the defendant/respondent having not filed a defence and hence showing no intention to defend the main suit. We have carefully considered the facts of this case as they relate to the issues raised in the preliminary objection, the submissions of counsel to both parties and all the authorities referred to by counsel to the two parties. We note that in the respondent/applicant’s written address, counsel indicated that he entered a conditional appearance for his client. As rightly argued by the learned counsel to the claimant/respondent, Order 8 of the National Industrial Court Rules 2007 deals with the issue of appearance before this court. None of the rules in this order covers or allows a conditional appearance. A party before the court either appears in person or through its counsel. Conditional appearance or appearance in protest is, therefore, not known to the Rules of this court. Counsel may wish to bear this in mind. We also observe that the defendant/applicant filed a further affidavit and a written address in support of the further affidavit after the claimant/respondent has concluded his written response to the preliminary objection. With these processes the defendant/applicant amplified and fine-tuned its original argurnent on its application. Unfortunately, the claimant/respondent has no similar opportunity to so react. By the provision of Order 19 Rule 13(4) of the NIC Rules 2007, ‘The party who files the first address shall have a right of reply or point of law only.’ It is our considered opinion, therefore, that the defendant applicant has no right to file these processes after the claimant respondent has been foreclosed. What the defendant/applicant is entitled file according to the Rules of this court is a reply on points of law only. Consequently, the said processes are ignored for the purposes of this ruling. As agreed by both parties in their written addresses, the only issue for determination on this motion is whether this court has jurisdiction to determine the dr. mant/respondent’s claims in the substantive case, The claimant espondent’s contention is that the termination of his employment via the defendant/applicant’s letter dated 9th September. 2009 was wrongful. He as a result, urged the court to set the termination aside and order the defendant/applicant to pay all his accumulated salaries and allowances. Again both parties agreed that a court is competent and has jurisdiction in a case if inter alia the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdic on. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341. The jurisdiction on of this court is provided for in section 7(1) of the National Industrial Court Act 2006. Section 7(1)(a) of the NIC Act provides: The Court shall ha e and exercise exclusive jurisdiction in civil causes and matters — (a) relating o (i) labour, including trade unions and industrial relations; and (ii) environ lent and conditions of work, health, safety and welfare of labour, and matters acidental thereto. This court has held in a plethora of cases that issues of termLiation of employment are matters relating to labour or at least they are matters incidental to labour as provided in section 7(i)(a) of the NIC Act 2006, as the jurisdiction of this court is subject based. See Lasisi Gbadegesin V. Wema Bank unreported Suit No. NIC/57/2008 delivered on 2nd April, 2009 and Abdul Shaibu v. Noble Drilling Ltd unreported Suit No. NIC/LA/09/2009 the ruling of which was delivered on 13th July, 2009. We have not been shown any satisfact ry reason why we should hold differently in the present matter. On the whole we hereby rule that we have jurisdiction to try this matter; in which event, the question of transferring the matter to another court under section 24 (2) of the NIC Act 2006 does not arise. The preliminary objection of the defendant/applicant fails and it is hereby dismissed. We make no order as to cost. The matter shall proceed to trial. Ruling is entered accordingly. ____________________________ Hon. Justice B. B. Kanyip Presiding Judge ________________________ ________________________ Hon. Justice F.I. Kole-Olalere Hon. Justice O.A Obaseki-Osaghae Judge Judge