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BEFORE THEIR LORDSHIPS HON. JUSTICE. M.N. ESOWE - PRESIDING JUDGE HON. JUSTICE F. I. KOLA-OLALERE - JUDGE HON. JUSTICE J. T. AGBADU-FISHIM - JUDGE DATE: 7th FEBRUARY 201l SUIT No. NIC/ABJ/11/2010 BETWEEN SUNNY OKWUDIASHI - CLAIMANT AND COSTAIN WEST AFRICA PLC - DEFENDANT REPRESENTATION Lawrence Nkwuaku Esq., for the claimant. Paul Enejo Edime Esq. for the respondent RULING The claimant approached this Court via a compliant dated and filed on the 24th June, 2010, whereby he claimed the following against the defendant — i. A DECLARATION that the letter of dismissal dated l3th November, 2008 issued to the claimant by the defendant is wrongful, null and void, and of no effect whasoever. ii. A DECLARATION that the letter of dismissal dated l3th November, 2008 issued to the claimant by the defendant is contrary to the rules of natural justice and then core null and void, and of no effect. iii. A DECLARATION that the claimant’s employment with the defendant still subs .sts as same has not been determined by the said letter of dismissal dated 13th November, 2008. iv. A DECLARATION that the claimant’s employment having not been determined, the claimant is entitled to be paid his salary and all his allowances from November, 2008 to date. v. AN ORDER directing the defendant to pay the claimant his salary and all his allowances from November, 2008 to date. vi. A declaration that the terms of the NATIONAL JOINT INDUSTRIAL COUNCIL (NJIC) AGREEMENT ON TERMS AND CONDITIONS OF SERVICE FOR ALL SENIOR EMPLOYEES IN THE BUILDING AND CIVIL ENGINEERNG INDUSTRY IN NIGERIA DATED 4TH DECEMBER, 2007 form part of the claimant’s contract of employment with the defendant. vii. A DECLARATION that the claimant having worked for not less than 10 years shall, in line with the provisions of ARTICLE 2. B of the NATIONAL JOINT INDUSTRIAL COUNCIL (NJIC) AGREEMENT ON TERMS AN.D CONDITIONS OF SERVICE FOR ALL SENIOR EMPLOYEES IN THE BUILDING AND CIVIL ENGINEERING INDUSTRY IN NIGERIA DATED 4TH DECEMBER, 2007, upon termination of his employment be entitled to a benefit fit calculated at the rate of three-quarter (3/4) of a month’s pay for each year of service and that the entitlements shall be calculated on the basis of total eme ument defined to include basic salary, rent subsidy and housing allowance. viii. AN ORDER directing the defendant, upon termination of the claimant’s employment, to pay the claimant his end of service benefit of three-quarter (3/4) of a rninth’s pay for each year of service calculated on the basis of total emolurnent defined as including basic salary, rent subsidy and transport allowance for 19 years being the number of years the claimant has worked for the defendant before the uiported dismissal of the claimant by the defendant. ix. A DECLARATION that the defendant’s failure to remit the claimant’s pension contributions under the National (Contributory) Pension Scheme, to the claimant’s Pension Managers/Administrators (IBTC) is wrongful and fraudulent, x. AN ORDER directing the defendant to remit the claimant’s pension contributions, under the National (Contributory) Pension Scheme, to the claimant’s Pension Managers/Administrators (IBTC). xi. General damages of N10,000,000.00 (Ten Million Naira) only for wrongful dismissal. xii. Interest on the monetary claims above at the rate of 21% since November, 2008 till judgment and thereafter at the rate of 10% until final liquidation of the judment sum. xiii. N500,000.00 (Five Hundred Thousand Naira) only as cost of this action. Alongside the complaint, the claimant equally filed a statement of facts establishing the cause of his action, list of qitnesses and documents to be relied upon at the trial. On 29th July, the defendant entered and filed a Memorandum of Appearance; and on the 15th September, 2010, it filed its Statement of Defence and lists of witness and documents to be relied upon at the hearing. On the same 15th September, 2010, the defendant filed a Motion on Notice pursuant to, section 7(1), Order 11 Rule 1(1) of the National Industrial Court Rules 2007 and under the inLrent jurisdiction of this Court asking for an Order of this Court striking out or dismissing the sit upon the ground that this Court lacks jurisdiction to entertain this suit. Attached are a 7-paragraphed affidavit and a written address in support of the Motion on Notice. The claimant, on 12th October, 2010 filed a counter-affidavit in opposition to the defendant’s Motion on Notice. Attached to the counter-affidavit is a Certified True Copy of a Ruling of this Court on April 2, 2002 in Suit No. NIC/02/2009. The claimant also filed his written address in opposition to the defendant’s Motion on Notice on 15th September. 2010. In its Written Address in support of the Motion on Notice, the defendant, through its counsel, formulated a lone ground for determination of the issue at hand, viz: “whether the subject matter of this suit falls u. der the jurisdiction of this Court”. The learned defence counsel submitted that to determine wheer the Court has jurisdiction to entertain a matter, it is necessary to look at the statute setting up such a court and any other statute that may grant such a court jurisdiction. The Constitution may also be a source of the court’s powers and jurisdiction. He added that the court must also take a look at the pleadings of the claimant (in this case, the statement of complaint) to determine whether or not the court has jurisdiction to entertain the subject at hand. To counsel, regarding the case at hand, the relevant statute is section 7(l) of the National Industrial Court (NIC) Act 2006. Counsel reproduced the provisions of section 7(l) (a) — (c) of the said Act and rgued that the jurisdiction of the Court is therefore restricted to trade dispute matters as well as the items mentioned in section 7(l)(a) (c). That the items have no bearing whatsoever to trade disputes, which is the main subject of the case. Counsel then submitted that it is clear from judicial precedent that the jurisdiction of this Court should be restricted to trade disputes matter. He referred the Court to the Court of Appeal case of Tidex (Nig,)Ltd v.NUPENG [1998] 1 NWLR (Pt. 573) 263 at 267 where it was held thus: By virtue of section 1A of the Trade Disputes Act as amended by Decree No. 47 of 1992, no person shall (subject to section 20(3) of the Act) commence an action, the subject matter of trade dispute or any inter or intra union dispute in a court of law and accordingbany action which prior to the commencement of the section is pending in any court shall abate and be null and void [and] any interim or interlocutory order, judgment or decision made by any court other than the National Industrial Court in respect of any trade dispute, inter or intra union dispute prior to the commencement of the section shall cease to have effect. See also AG Oyo State v. NLC [2003] 8 NWLR (Pt. 837) at page 8. Counsel submitted further that in the case of BPE v. NUEE [2003] 13 NWLR (Pt. 837) 382 at 387 the Court de med trade dispute as any dispute between employers and workers or between workers and workers which is connected with the employment or non—employment or the term of employment ar d the physical conditions of work of any person. That the same Court held that the following ingredients are not only necessary but inevitable for there to be a trade dispute - (a) There must be a dispute (b) The dispute must involve a trade (c) The dispute must be between: (i) Employers and workers (ii) Workers and Workers (d) The dispute must be connected with: (i) The employment or non—employment (ii) The terms of employment, and (iii) Physical conditions of work of any person. As a result counse1 contended that the Court has only exclusive jurisdiction over trade dispute matters, and cannot entertain matters not listed under section 7 (1) of the National Industrial Court (NIC) Act 2006. He observed that majority of the claims of claimant are declaratory reliefs and it has been held that the jurisdiction of the Court does not extend to making declaratory and in unction orders. Counsel Reproduced the dictum of the Court of Appeal in AG Oyo State v. NLC [2003] 8 NWLR. (Pt. 821) 9 to the effect that Section 20 of the Trade Disputes Act confers jurisdiction on the National Industrial Court. However, rading the section properly the jurisdiction of that court does not include making declarationr and injunctive orders over which only the State High Court has jurisdiction. Counsel to the defendant then concluded that since the dispute between claimant and defendant does not involve a trade dispute and it cannot be subsumed under any of the provisions of section 7(1) of the National industrial Court (NIC) Act 2006, this Court lacks jurisdiction to entertain the suit, arging the Court so to hold. The 1st arm of the reply by the claimant was an 11-paragraphed counter-affidavit sworn to by Chinenye F. Ali, Legal Practitioner in the law firm of counsel to the claimant. Among other arguments was para 5 of the counter-affidavit of the claimant wherein the claimant claimed to have exercised laour, skill and diligence in the service of the defendant and para 6 where he averred that section 7(1) (a) of the NIC Act 2006 confers exclusive jurisdiction on this Court in civil causes and matters relating to labour, conditions of work, welfare of labour and niatters incidental thereto among other things. Counsel to the claimant submitted that, the claimant’s para 7 states that labour, as defined by Black’s Law Dic onary 6th Edition at page 874 includes work, toil, service, mental or physical exertion, and as being synonymous with “employment”, job or “position” in its ordinary use. The arm also refers to work for wages as opposed to work for profits, though the word is sometimes constituted to mean service rendered or part played in the production of wealth and, therefore, that the jurisdiction of this Court covers the subject matter of this suit. The claimant’s counsel in para 9 of his counter-affidavit drew the Court’s attention to its own judgment in Suit No. NIC/02/2008 delivered on 28th January, 2009 where it assumed jurisdiction in a suit that is on all fours with the case at hand and also to its holding in the case of Association of Senior Civil Servants of Nigeria (ASSCON) v. National Orientation Agency [2005] 3 NLLR (part 71) page 1, that the Court is bound by its previous rulings or decisions. In the 2nd arm of the claimant’s reply to the written submission of the defendant, the claimant adopted the sole issue for determination, namely — Whether the subject matter of this suit falls within the jurisdiction of this Court. To prove this, counsel reproduced the provision of section 7(l)(a)(i), (ii), (iii), (b), (c)(i), (ii), I(iii), (iv) and (v) of the NIC Act 2006 and submitted that jurisdiction should be determined based on the relevant statutes and the claim before this Court. Here, the claimant is challenging his purported disn ssal from service by the defendant as not being in consonance with his term of employment and this is a nullity. The case at hand, to counsel, falls under “civil causes and mailers relating t labour, industrial relations; environments and conditions of work, health, safety and welfare f labour and matters incidental thereto”. Counsel reproduced the definition of labour in Black’s Law Dictionary 6th Edition page 874 and submitted that it is clearly not in doubt that the claimant exercised labour, skill and diligence in the service of the defendant for which he earned wages. Counsel submitted further that the term wages has been described as a compensation given to a hired person for his or her services, compensation of employees based on time worked or output of production. It also means every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging payments in kind, tips and any other similar advantage received from the individual’s employer or directly with respect to work for him. That means that the term should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed, referring the Court to Black’s Law Dictionary 6th Edition page 1579. Continuing his submission, counsel to the claimant said that after about 19 years of meritorious service by the claimant, the defendant issued a letter of dismissal dated 13th November, 2008 to the claimant. Also consequent upon the refusal of the defendant to reconsider its decision to dismiss him and taking cognizance of the fact that after working for 19 years he would, on Itermination, be enitled to end of service benefits, the claimant invoked the jurisdiction of this Court to ventilate his grievances. Counsel reproduced section 51(3) of the NIC Act 2006 and went into the powers and duties of superior courts and added that this Court in Suit No. NIC/02/2008 assumed jurisdiction to entertain the said suit and on 28th January, 2009 delivered a considered judgment where it held inter a/ia that the termination of employment of the claimant in that case was a nullity and ordered their reinstatement without loss of salaries and other emoluments, a case which is on all fours with this present case; and in ASCON v. National Orientation Agency (supra) the Court held that the National Industrial Court is bound by its previous rulings or decision especially where the facts of he cases are the same. Counsel for the claimant concluded by submitting that this Court is seized of the jurisdiction to entertain this suit and urged the Court to so hold and accordingly dismiss the defendant’s Motion on Notice challenging the jurisdiction of this court. In his reply on p ints of law, counsel to the defendant urged the Court to discountenance and strikeout the counter-affidavit of the claimant, it being vague and misleading. That paras 7, 9 and 10 of the affidavit offend section 87 of the Evidence Act as they contain legal arguments. He reiterated his point that section 7(l) of the NIC Act 2006 clearly spelt out the jurisdiction of this Court, which jurisdiction does not exiend to master/servant relationship. To him, it is not in doubt that this Court has the jurisdiction to entertain labour related matters as specified in section 7(1) of the NIC Act 2006; however, the issue at hand borders on master-servant relationship which is outside the jurisdiction of this court. Counsel urged the Court to discountenance para 4.1.1 through 4.1.9 of the claimant’s written address as they are totally irrelevant to the facts of this present case. Exhibit A (attached authority), to counsel can be distinguished from the present one because- 1) The cause of action in that matter arose as a result of termination of employment because of involvement in union activities. 2) The Court held that the National Industrial Court is a superior court of record and has co-ordinate jurisdiction with the High Court of Lagos State, which is not in contention; and since the termination of the employment of the claimant is not as a result of involvement in union activities, this Court has no jurisdiction to entertain it, urging the Court to so hold. Counsel ended his submission by saying that in the interest of justice he is urging this Court to grant his application on notice with substantial cost to against the claimant. On 13th December 2010 both parties adopted their written submissions. We have carefully considered the submissions of both counsel together with the filed processes, cited authorities nd referred statutes. We have noted that both parties are in agreement that to determine whether a court has jurisdiction to entertain a case, it is necessary to look at the statutes that set up such court and any other enabling law. Also, that the court must look at the pleadings of the claimant (in this case his complaints) to determine if the subject matter therein comes under the court’s jurisdiction. Both parties are also in agreement that it is section (7)(1) of the National Industrial Court Act 2006 that grants jurisdiction to this Court specifically on issues relating to labour, industrial relations, trade unions as well as matters incidental thereto. To the defendant, however, all the powers of this Court enshrined in section 7(1)(a), (b) and (c) of the National Industrial Court Act 2006, have no bearing to trade disputes, which is the main subject matter of his case and cannot be subsumed under any of the provision of section 7 of the said Act. To him this is a master-servant matter, which is purely outside the jurisdiction of this Court. The claimant, form the totality of the reliefs he seeks, is claiming for his entitlements arising out his employment with the defendant. It is this employment relationship that the defendant labels master servant relationship, and which according to the defendant does not fall within the ambit of section 7 of the NIC Act in order to vest urisdition or this n to hear and determine the case at hand in several decisions delivered since the passing of the NIC Act in 2006, this court has stressed that the employment rights of workers whether in terms of dismissal/terminal on or in terms of claims for salaries, wages and other entitlements of work all come within the purview of labour or at worse are matters incidental to labour and so can be heard and determined by this court. See for instance, Lasisi Gbadegesin v. Wema Bank unreported Suit No. NIC/57/2008, where this court in its ruling delivered on April 2nd, 2009 held that it has jurisdiction to deter nine cases relating to termination of employment and welfare of labour pursuant to the provisions of section 7 of the NIC Act 2006 and Mr Abdul Shaibu v. Noble Drilling Ltd unreported Suit No. NIC/LA/90/2009 delivered on July 13th, 2009 where this court also held that it has the unfettered jurisdiction to entertain matters relating to the employment or non-employment of any person. The authorities cited by the defendant were all handed down before the NIC Act was passed in 2006; and they all deal vith trade disputes in the strict sense of the word, namely, collective labour as against the current individual labour dispute between the claimant and the defendant. This means that us court has not been shown why it should depart from this reasoning and decline jurisdiction regarding the claims of the claimant. We, therefore, hold that this court has jurisdiction to hear and determine the claims of the claimant. The preliminary objection of the defendant lacks merit and is hereby dismissed. The matter shall proceed to hearing. We make no order as to cost. Ruling is entered accordingly. ________________________________ Hon. Justice. M.n. Esowe Presiding judge __________________________ ________________________ Hon. Justice F. I. Kola-olalere Hon. Justice J. T. Agbadu-fishim judge judge