RULING. Upon being served with the originating processes commencing this suit, the defendant/applicant vide notice of preliminary objection dated 5/12/17 and filed on 6/12/17, brought pursuant to Order 17 Rule 9 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017, section 1(1) of the National Industrial Court of Act 2006, and under the inherent jurisdiction of the court, is challenging the jurisdiction of this court to hear and entertain this suit. The preliminary objection is supported by a 7 paragraphs affidavit, sworn to by one Tijjani Jumoke, a litigation secretary with N. J. Kalu & Co; the Solicitors for the defendant. A written address was also filed along with the notice of preliminary objection. The grounds for the objection are: 1. The action is incompetent having been commenced by the claimant without first resorting to arbitration as agreed by the parties in the deed of legal mortgage. 2. The honourable court has no jurisdiction to grant the reliefs sought in this suit as it is not within the statutory powers. N. J. Kalu, Esq; Counsel for the Defendant/applicant, while making oral submission before the Court relied on all the averments contained in the affidavit in support. Counsel also adopted the written address as his argument. In the written address two issues were formulated for determination, to wit: 1. ‘‘Whether this Honourable Court has jurisdiction to entertain this suit; the claimant having failed to resort to arbitration as contained in paragraph 15.2 of the deed of legal mortgage’’. 2. ‘‘Whether this Honourable Court has the competence to hear and grant reliefs not within its statutory powers’’. In arguing issue one, counsel submitted that the defendant had vide a letter dated 11/4/16, made an offer of a restructured platinum mortgage Bank Ltd, upfront Mortgage facility of N7,960,327.57 (Seven Million, Nine Hundred and Sixty Thousand Three Hundred and Twenty Seven Naira, Fifty Seven Kobo) only, with a monthly repayment plan of N48,116.16 to the claimant. The parties pursuant to the said offer which was accepted by the claimant, executed a mortgage deed agreement dated 29/4/16, which contains the terms and condition of the offer. Counsel contended that the said mortgage deed agreement in paragraph 15.2 contains an arbitration clause which the claimant in this suit failed to explore before bringing this action to this honourable court for determination. Counsel contended that the claimant having failed to comply with clause 15.2 of the mortgage deed agreement, has deprived this court of jurisdiction to adjudicate. ISSUE TWO Counsel started his argument on issue two by referring to sections 1(1) and 7 of the National Industrial Court Act, and submitted that the National Industrial Court was established with exclusive jurisdiction in civil causes and matters relating to labour including trade unions and industrial relations etc. counsel submitted that section 7 of the National Industrial Court Act, 2006, did not confer jurisdiction on this court to hear and determine any other civil causes and matters that are not related to labour matters. In the case at hand the claimant is seeking reliefs to enforce a simple contract other than her employment with the defendant or labour related issue. It is also submitted that this court is not conferred with the authority by the National Industrial Court Act 2006, to hear and grant reliefs that ought to have been granted by the Federal High Court or state High Court which has exclusive jurisdiction to grant such reliefs. In concluding his submission counsel argued that the reliefs brought to this court for adjudication are not the reliefs that can be granted by this court, counsel concluded that this court lacks jurisdiction to determine this suit, as the suit is incompetent, frivolous and abuse of process and should be struck out with substantial cost. In reaction to the notice of preliminary objection, the Claimant on 16/1/18 filed a ten (10) paragraphs counter-affidavit in opposition to the notice of preliminary objection. In the counter-affidavit the claimant averred that she is a legal practitioner and a former employee of the defendant/applicant by virtue of which she secured a mortgage loan of N7,960,327.57 (Seven Million, Nine Hundred and Sixty Thousand Three Hundred and Twenty Seven Naira, Fifty Seven Kobo) to purchase a 2 Bedroom semi-detached bungalow at a monthly repayment plan of N48,116.16. It was averred that the Defendant/applicant oppressively attempted to vary/review/modify the terms of initial agreement which the claimant/respondent refused to accept, on the account that it was tied to the claimant’s employment; thereafter the claimant’s appointment was terminated. O. O. Ogundipe, Esq; Counsel for the claimant/respondent in opposing this application submitted that he is relying on all the deposition contained in the counter-affidavit. Counsel also adopted the written address as his argument. The claimant adopted the two issues submitted by the defendant/applicant. In his submission in opposition to this application counsel referred to exhibits G1, G2 and G3 in paragraphs 2 and 3 of the counter-affidavit and submitted that this suit is in a bid to prevent revocation of the mortgage secured by the claimant during her employment. For the court to determine this matter recourse must be made to the employment of the claimant counsel submitted that this matter is in line with section 7 of NICA are matters incidental thereto. It is also submitted that section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) confers on this Court jurisdiction to entertain this suit. Counsel urged the court to hold that it has jurisdiction to entertain this suit. As all issues arose from the terminated contract of employment of the claimant/respondent. Counsel submitted in reliance on CBN V SAP NIG. LTD (2005) 3 NWLR (pt.911) 152, that all pre-conditions for exercise of jurisdiction laid down by law have been complied with for the court to assume jurisdiction on the matter. Counsel submitted in determining jurisdiction it is the writ of summons and statement of claim of the plaintiff that the court should consider. On this postulation counsel relied on the case of INWELEGBU V EZANI (1999) 12 NWLR (pt.630) 266. Counsel urged the court to in line with this principle of law to have a deep look at the claimant’s complaint and statement of facts in determining the issue of jurisdiction. Counsel submitted that this court has jurisdiction in the circumstances of this case. It is the submission of counsel that the document referred to as exhibit R in the affidavit in support of the objection is unregistered land document. On this counsel relied on section 6 and 15 of the Land Registration Act Cap, 515 laws of the Federation. Counsel also submitted that the law is settled that an unregistered registrable land instrument cannot be pleaded and is not admissible in evidence. On this contention counsel cited CO-OPERATIVE BANK LTD V LAWAL (2007) 1 NWLR (Pt.1015) 287, OKOYE V DUMEZ NIG. LTD (1985) 1 NWLR (Pt4) 783 and OGBIMI V NIGER CONSTRUCTION LTD (2006) 9 NWLR (pt.986) 474. Counsel also referred to section 2 of the Land Registration Act on definition of instrument. Counsel urged the Court to disregard exhibit R. Counsel also submitted that it is settled law that any agreement to submit a dispute to arbitration does not oust the jurisdiction of the Court. On this submission Counsel relied on OBEMBE V WEMABOD ESTATE LTD (1977) 5 SC 70, AIDC V NIGERIA NLG LTD (2000) 4 NWLR (Pt.653) 494 SC, CITY ENGINEERING NIGERIA LTD V FEDERAL HOUSING (1997) 9 NWLR (Pt.520) 224 SC. It is the submission of Counsel relying on these authorities that the failure to resort to arbitration will not oust the jurisdiction of the Court to entertain this suit. In concluding argument counsel urged the court to dismiss this application for being unmeritorious. COURT’S DECISION: I have carefully perused the content of the Originating Processes commencing this suit as well as the motion on notice filed by the defendant/applicant challenging the jurisdiction of the court to entertain this suit. I have equally examined the affidavits filed by the parties for and against the application with the written addresses of counsel. I shall also adopt the two issues submitted by the defendant/applicant in resolving this application. However, before proceeding to deal with the two issues for determination, I shall resolve the issue of applicability of exhibit R attached to the supporting affidavit of the defendant/applicant. The claimant/respondent has contended that exhibit R being unregistered land instrument is not admissible in this case and urged the court to reject same. The submission of counsel seems to have gloss over the fact that this matter is at preliminary stage hearing of the substantive suit is yet to commence. It is trite law that exhibit attached to affidavit at preliminary stage shall not be subject to attack on ground of inadmissibility. In a preliminary objection exhibits are not objected to. It is only when the substantive suit has reached trial that such exhibits should attacked or object to. See NWOSU V IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt.135) 688, UDORO & ORS. V THE GOVERNOR AKWA-IBOM STATE & ORS. (2008)LPELR-4094(CA), DAGGASH V BULAMA (2004) 14 NWLR (PT.892) 144, ADEJUMO V GOVERNOR OF LAGOS STATE (1970) ALL NLR 187. On the authority of the foregoing cited cases, the objection of the claimant/respondent to admissibility of exhibit R attached to the defendant/applicant’s affidavit in support is hereby overruled as not being grounded in law. Coming to main issues, for determination, I shall start with resolution of issue two. In arguing issue two, counsel for the defendant/applicant has argued that this court lacks jurisdiction to entertain his suit, as the claims of the claimant are not within the purview of section 7 of the National Industrial Court Act 2006. For the claimant/respondent this court has the requisite jurisdiction to entertain this suit as according to counsel the matter emanated from the sacking of the claimant from work. It is trite law jurisdiction is fundamental to adjudication of suit before the court. Thus, why any decision reached without jurisdiction is a nullity no matter how well conducted and decided. The jurisdiction of court is donated by the constitution and the statute establishing the court. It is in this light that the issue of jurisdiction of this court will be examined by this court. The jurisdiction of this court is as provided for by section 254C(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) and the provisions of section 7 of the National Industrial Court Act 2006. It is apt at this juncture to reproduce the provisions of both the constitution and the statute, for purposes of clarity and emphasis the relevant provisions of the Constitution and the Act that donated jurisdiction to the court. This will enable us to appreciate clearly and easily the areas and subject matters covered by the jurisdiction of the Court. The new section 254C- 1 of the 1999 Constitution as altered which clothes the Court with jurisdiction provides thus: “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 on 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 workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith; (b) Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; (c) Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lockout or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matter connected therewith or related thereto; (d) Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employers association or any other matter which the court has jurisdiction to hear and determine; (e) Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom; (f) Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters; (g) Relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace; (h) Relating to, connected with or pertaining to the application or interpretation of international labour standard; (i) Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto; (j) Relating to the determination of any question as to the interpretation and application of any- (i) collective agreement; (ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute; (iii) award or judgment of the court; (iv) term of settlement of any trade dispute; (v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement; (vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place; (vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof; (k) Relating to or connected with trade disputes arising from payment or nonpayment 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; (l) Relating to- (i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith; (ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and (iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly; Section 7 of the National Industrial Court Act, 2006, read as follows:- 7. Jurisdiction, etc.(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters- (a) relating to-(i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and b) relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action; (c) relating to the determination of any question as to the interpretation of-(i) any collective agreement; (ii) any award made by an arbitral tribunal in respect of a labour dispute or an organisational dispute; (iii) the terms of settlement of any labour dispute or organisational dispute as may be recorded in any memorandum of settlement; (iv) any trade union constitution; and (v) any award or judgment of the Court. It is clear from the above quoted provisions of both the constitution and statutory provisions that the jurisdiction of the National Industrial Court of Nigeria centres on matters related to or connected with labour, trade Unions, industrial relations, child trafficking, child labour, health and safety at work place as well as all employment and matters incidental thereto. If the position of the law is considered along with the claims of the claimant, it will be seen that this suit is mainly in respect of mortgage facility granted to the claimant by the defendant/applicant as a result of the claimant being a member of staff of the defendant. It is also to be noted that what triggers this action was the attempt by the defendant to vary the terms of repayment of the mortgage loan due the claimant’s no longer being in the service of the defendant. This to my mind clearly shows that the claim of the claimant is connected to and incidental to the employment of the claimant with the defendant which has been terminated. In view of this finding, it is my view that the claimant’s suit as it is presently constituted is within the purview of the jurisdiction of this court as contained in section 254C(1) (a) –(m) and section 7(1) of the National Industrial Court Act 2006. I shall therefore not hesitate to come to the conclusion that this court has the requisite jurisdiction to entertain this suit. In the circumstance, I so hold that this case is properly before the court. RESOLUTION OF ISSUE TWO On issue two it was argued by the defendant/applicant that the present action is premature in that the provision Article 15.2 in the agreement requires going to arbitration to resolve any dispute arising from the mortgage agreement. However, the claimant/respondent argued to the contrary to the effect that provision of clause for arbitration cannot oust the jurisdiction of this court to hear and determine this suit. I have assiduously studied the authorities cited by the claimant/respondent in arguing that the arbitration clause shall not operate to deprive this court of jurisdiction to try this suit. The cases referred to by the claimant/respondent were misconceived they never decide that an arbitration clause should not be given effect. In fact in all the cases the courts view is to the effect that an arbitration clause remains sacrosanct since it is the agreement of the parties. The court cannot alter or vary agreed terms of contract by parties which they entered into voluntarily. In the absence of anything to show duress the claimant will not be allowed to not to carry terms of the agreement they freely entered into. What this means is that this action which was brought before arbitration is pre-mature. For the claimant to competently institute an action in respect of this subject matter, it has to be after arbitration has been exhausted as provided for in clause 15.2 of exhibit R. In view of the above findings, the defendant’s application succeeds in part. For avoidance of doubt, it is the order of this Court that: The claimant’s action is within the jurisdiction of the court having been an action that is incidental to employment. However, clause 15.2 which provide for resorting to arbitration in the event of non-resolution of dispute by the parties through negotiation, this action is premature. It can only be instituted after exhausting the provision for settlement by arbitration. At the end this suit is struck out for non-compliance with clause 15.2, which is a condition precedent before approaching the court for redress. Sanusi Kado, Judge.