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BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo President Hon. Justice B. B. Kanyip Judge Hon. Justice V. N. Okobi Judge DATE: NOEMBER 14, 2007 SUIT NO. NIC/14/2006 BETWEEN 1. Mrs. G. I. Oyeleke 2. Mrs. M. N. Emefiena 3. Mr. A. Umayah 4. Mr. T. Tomiyetan 5. Mr.I. Adelana ……………………………………………………………Claimants AND 1. NICON insurance Plc 2. NICON Risk Management and Survey Company limited……… Respondents REPRESENTATION Akinwunmi Akindele, with him is Mrs. Tundun Akindele, for the applicants. K. P. Abegunde, for the respondents RULING The claimants sued the respondents by way of originating summons pursuant to Part 11, section 7(l) and (6), and sections II, 12, 13, 15, 17, 19 and 20 all of the National industrial Court (NIC) Act 2006 praying this court for the following orders — 1. A declaration that the disengagement of the claimants by the respondents without recourse to the conditions of service of the respondent and the provisions of the collective agreement binding in the industry wrongful and a violation of the claimants’ rights. 2. A declaration that the respondents’ failure to pay the salaries of the claimants for seven months i.e. from April 2006 to October 2006 without any lawful excuse is illegal, and a violation of the Labour Act and all international conventions on labour law. 3. An order of this court mandating the respondents to immediately pay to the claimants all salary arrears from April 2006 to October 2006 and Christmas bonus for the year 2006. 4. An order of this court mandating the respondents to pay to the claimants all education allowance, inconvenience and hardship allowance, furniture allowance and other allowances and benefits enjoyed by the members of stuff of the 1st respondent since the creation of the 2nd respondent. 5. An order mandating the respondents to monetize the claimants’ long service award and credit it into their entitlement account. 6. An order of court merging the service years of the 4th and 5th claimants in both the respondents’ service for the purposes of pension, gratuity and computation of terminal benefits. 7. A determination of the question as to whether the claimants are entitled to promotions and annual increments and bonuses enjoyed by their colleagues in the 1st respondent’s service and or a consequential order mandating the respondents to pay the claimants all entitlements that would have accrued to the claimants had promotions and annual increments been given since 1995. Accompanying the originating summons is an affidavit of urgency, a motion on notice supported by an affidavit with two exhibits (Exhibits TT1 and TT2) attached, and a 21- paragraphed memorandum. In reaction to the originating summons, the respondents filed a notice of preliminary objection praying that this court lacks jurisdiction to hear the matter. The preliminary objection is premised on the following grounds (a) The originating summons is incompetent and not cognizable in law as it has no supporting affidavit. (b) The action cannot be commenced by originating summons. (c) The matter was initiated without compliance with the required condition precedent to the institution of the action. (d) T he action as presently constituted is incompetent for misjoinder of parties and misjoinder of cause(s) of action. Both parties agreed to file written addresses in respect of the preliminary objection. This they did. On issue 1, the respondents contended that the claimants filed an originating summons without a supporting affidavit, which is fatal to the action, referring the court to Keyamo v. Lagos State House of Assembly [2001] 8 NWLR (Pt. 799) 605 at 609, 612 and 613 - 615 where it was held that originating summons ought to be supported by an affidavit, failing which the action is incompetent, in any event, that the court cannot grant the reliefs sought by the claimants as there is no supporting facts which ought to have been deposed to in art affidavit,-relying on Keyamo v. Lagos State House of 4ssembly, supra. Regarding issue 2, the respondents contended that the reliefs claimed by the claimants are contentious issues, which will require documentary evidence and evidence of witnesses, and that these cannot be accommodated in an originating summons. ‘that an action can only be commenced by way of originating summons if it deals with the construction of a written law, instrument, deed, will or other document or where there is unlikely to be any substantial dispute on issue of fact between the parties, referring the court to Ossai v. Waknau [2006] SCM 170 at 182— 183. On issue 3, the respondents contended that by section 26(2) of the National Insurance Corporation of Nigeria Act Cap. 263 LFN 1990, the claimants are expected to have given the respondents a pie-action notice of their intention to sue, which they did not. In consequence, that the present action is incompetent given that the pre-action notice is a condition precedent to the institution of the present action, referring the court to Nnorye v. Anvichie [2005] 1 SCM 133 at 146 and Ugwuanyi v. NICON insurance Plc [2004] 15 NWLR (Pt. 8 612. In any event that the action does not even fall within the jurisdiction of the court as provided for under section 7 of the NIC Act 2006 because dismissal of an employee is not provided for under the said section 7. Regarding issue 4, the respondents contended that tot the claimants to tile a joint action, it must be shown that all the parties have a common interest or a common right. That there is nothing in the originating summons to show that the claimants were employed at the same time and or given a joint letter of employment, rather that the claimants were individually employed and so they cannot file a joint action, referring the court to Bossa v. Julius Berger Plc [2005] All FWLR. (Pt. 290) 1503 at 1577. Furthermore, that in filing a memorandum together with the originating summons, what the claimants have done amounts to an abuse of court process as they cannot tile two originating processes together. The respondents then concluded by urging the court to dismiss the suit with cost. The claimants opposed the preliminary objection arguing that it lacks merit. On issue 1, that is, the failure to support the originating summons with an affidavit, the claimants contended that the respondents missed the point. To the claimants, the case of Keyamo v. Lagos House of Assembly, Supra, is not binding on this court, referring the court to Oshodi v. Eyifunmi [2000] SC (Pt. 11) 145 at 192. In any case, that the originating summons in that case was considered in the context of the high Court of Lagos State Civil Procedure Rules which envisages that an affidavit be used in considering the facts before the court. That this is not the case regarding matters before this court. The claimants then contended that when this matter was filed, and going by se 12 of the NEC Act 2006, the applicable Rules of Court were the NEC Rules Cap. 432 LFN 1990, which did not specifically lay down the particular format for the filing of an application or the commencement of a suit. The claimants went on to cite Rules 4, 13, 16 id 19 arguing that the combined effect of these Rules permit the court to act only in the interest of justice and not to be bound by any formality, in any event, that the court can give the appropriate directions as to the conduct of this case so as to meet the ends of justice. To the claimants, citing UTC Nig. Ltd v. Pamotei [1989] 3 SC 1, Rules of Court are made to help the cause of justice and riot to defeat justice; they are aids to the court and not master of the court. The claimant then urged the court to resolve this issue in their favour. On issue 2, the claimants contended that whether a matter is contentious or not, it is for this court to give directions as to the future conduct of the proceedings. In any ease that the respondents did not tell the court how they came about the conclusion that the reliefs sought by the claimants are contentious and so will require documentary and evidence of witnesses. Regarding issue 3, the claimants indicated that the respondents’ argument is predicated on three points: that pre-action notice was not issued on the respondents that this court does not have jurisdiction by virtue of section 7 of the NIC Act 2006; and that the reliefs sought by the claimants deal with dismissal and only the High Court can accommodate the suit. In reaction then, the claimants argued that pre-action notice is required for public corporations only. That the 1st respondent was privatized by the Federal Government and so lost the privilege of being entitled to a pre-action notice by virtue of the Public Enterprise (Privatization and Commercialization) Act Cap. P38 Vol. 14 LFN 2004. That the 2nd respondent is a limited liability company incorporated under the Companies and Allied Matters Act (CAMA) 1990 and so cannot enjoy any legal immunity or the benefit of a pre-action notice as it can sue and be sued at any time. The claimants continued that the issue before the court is not premised on dismissal going by Exhibit TT1. They, however, failed to tell the court what it is premised on. Regarding the argument of the respondents that the present matter does not come within the purview of section 7 of the NEC Act, the claimants simply asserted that the reliefs they are seeking are all within the civil jurisdiction of this court as laid down under the said section 7. On issue 4, the claimants contended that the respective claims of the claimants show a common interest amongst them all, which entitles them to sue jointly. That the object of the rule of joinder of parties is to prevent multiplicity of actions by enabling claimants to proceed in the same action against all persons whom they allege they have the same relief against and will be entitled to a share of interest in the subject matter, referring the court to AG of the Federation v. AG of Abia State and ors [2003] 7 SC (Pt. 1) 32 at 93 and Ogolo v. Fubara [2003] 5 SC 141 at 159. The claimants then urged the court to dismiss the preliminary objection in its entirety. The respondents reacted to the claimants’ submissions on points of law. To the respondents, the argument of the claimants that originating summons as used in this suit differs from that envisaged under the High Court Civil Procedure Rules is misconceived. That originating summons has the same meaning, effect and impact in all the superior courts, including the Supreme Court, referring the court to AG of Bendel State v. AG of the Federation [1981] N SCC 314 at 316 and Omon v. Omon [2005] All FWLR (Pt. 242) 535. Secondly, the respondents contended that no where in the references to sections of the NIC Act 2006 and the NIC Rules Cap. 432 LFN 1990 by the claimants is it provided that actions commenced by way of originating summons should not be supported by a verifying affidavit, referring the court to Ebirika v. Asa Country Council [1962] All NLR 1141 at 1142. Thirdly, that no where in the pleadings of the claimants is it contended that the respondents are limited liability companies. Consequently, that the claimants cannot now canvass that fact in their reaction to the preliminary objection, referring the court to Ogboda v. Adulugba [1971] NSCC 66 at 67; Maman v. Salaudeen [2005] 12 SCM 260 at 287; Ojoh v. Kamalu [2005] 12 SCM 332 at 347; and Ishola v. UBN Ltd [2005] 3 SCM 100 at 111. Thirdly, that the exclusive jurisdiction conferred on this court by section 7 of the NIC Act 2006 is limited to actions in respect of group employment disputes as distinct from individual employment disputes, citing section 272 of the 1999 Constitution and the decision of’ this court in Chemical and Non-Metallic Products Senior Staff Association v. BCC [2005] 2 NLLR (Pt. 6) 446 at 474 — 475H — A, where this court held that- There are some distinctive features between individual employment disputes and group employment disputes. Whereas the regular courts have jurisdiction to hear and determine individual employment disputes, the National Industrial Court has jurisdiction to hear and determine group employment disputes. Lastly, that the argument of the claimants on the issue whether the claimants who had different contracts of employment with the respondents can maintain a joint action in this case is misconceived. That the cases cited by the claimants in that regard do not deal with employment contracts and so should be discountenanced by this court. The respondents concluded by urging this court to dismiss the suit with cost. We have carefully considered the submissions of both counsels in this matter. The contention of the respondents that the claimants did not approach this court using the proper processes is not tenable. It seeks to tie this court to technicalities, which the special nature of this court frowns on. See section 12 of the NIC Act 2006. The fact that a litigant comes to court using the wrong process should not disentitle him or her from a hearing. When the present cause of action arose, the Rules of Court applicable were the NIC Rules Cap. 432 LFN 1990, which were essentially silent on how matters such as the present can be initiated before this court. The critical question that needs to be answered is whether the approach adopted by the claimants in bringing this action can be said not to have put to the respondents the case they are expected to answer. In the recent case of Oyo State Government v. Alhaji Bashir Apapa and ors unreported Suit No.NIC/36/2007, the ruling of which was delivered on October 3, 2007, we had cause to be emphatic that this court will not strike out a case simply because the claimant came by way of a wrong process. Defects of this nature are curable as the court has the power to give the necessary directions in order to cure the said defects. We agree with the claimants that the respondents are limited liability companies and so cannot enjoy the privilege of pre-action notice. The argument of the respondents that the claimants did not plead this fact and so cannot rely on same is to simply being legalistic. This is because the respondents are already being sued in their corporate names and it is common knowledge that they are corporate entities capable of suing and being sued. The respondents alluded to the fact that the matter at hand relates to individual employment disputes, which this court cannot entertain. That this court can only entertain group employment disputes, citing the decision of this court in Chemical and Non Metallic Products Senior Staff Association v. BCC, supra. We must state that the respondents cited this case out of context. The BCC case was decided prior to the promulgation of the NIC Act 2006 and so cannot stand today given that under section 7 of the NIC Act, jurisdiction of this court is subject based and not based on persons. in other words, what needs to be looked at is whether the subject matter in issue is one that falls within the purview of section 7. If the answer is in the affirmative, then this court has jurisdiction to entertain the matter. It is in this regard that in the recent decision of this court in Godwin Tosanwumi v. Gulf Agency and Shipping Nigeria Limited unreported Suit No. NIC/18/2006, the ruling of which was delivered on June 14, 2007, we had cause to hold that— Whether or not individuals can approach this court with their grievances cannot be answered without recourse to what the position of the law was prior to the enactment of the NIC Act 2006... The law prior to the NIC Act 2006 was that only group employment disputes, not individual employment disputes, could be adjudicated on in this court. The reasoning by this court was hinged on the fact that the jurisdiction conferred on this court was principally in respect of settling ‘trade disputes’, which term was defined as employment disputes between employees and employer(s) or between workers and workers. This court reasoned that because the definition referred to workers in the plural, it must be read as excluding an individual worker. But even at this, the court in deserving cases permitted exceptions now and then especially when its interpretation jurisdiction was raised. This posture of the court, of course, did not go down well with especially academic commentators... Prof E. Uvieghara in his book, Labour Law in Nigeria (Malthouse Ltd: Lagos), 2001 at 43 1 is quite emphatic on the view that even under the TDA set-up, individuals can access this court arguing that the Interpretation Act states that in construing statutes, the singular includes the plural and vice versa. Despite this view point, this court stuck to its view that individuals generally could not access this court. The passage of the NIC Act 2006 has, however, reopened the issue of the right of individuals to come to this court with their grievances. The answer to the question would depend on how section 7 of the NIC Act is to be construed. Does the said section 7 confer jurisdiction based on persons or based on subject matter? We agree... that section 7 confers jurisdiction based on subject matter. This much has been held by this court in a previous decision in Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine v. Obafemi Awolowo University Teaching Hospital Complex Management Board, In re: Medical and Dental council of Nigeria and Nigerian Medical Association, unreported Suit No. NIC/8/2006 delivered on May 22, 2007 where this court held that ‘under the NIC Act 2006, jurisdiction is subject based’. The question to be answered, therefore, is whether the cause of action before this court comes within any of the subject matters provided for by the said section 7... The analysis of section 7... revealed the wide ambit of matters that fall within the meaning of the term ‘labour’. This means that any matter that qualifies as ‘labour’ or incidental to it will qualify as such and so would confer jurisdiction on this court. This is the only way in which section 7 of the NIC Act 2006 will make meaning. To hold otherwise, e.g. to hold that the section confers jurisdiction on the basis of persons, would mean that provisions such as that which permits this court to hear matters regarding the issue whether to grant an order to restrain a person from embarking on a strike or lock-out would come to naught. In any event, the fact is that given the TDA dispensation, individuals cannot access the dispute resolution processes of Part I of the TDA. To shut them out of this court would be manifestly unjust. We are, therefore, in agreement with the submissions of the claimant and the amicus curiae that individuals can access this court on matters within the purview of section 7 of the NIC Act. A look at the originating summons will show that the claimants are complaining about their disengagement from employment by the respondents and are praying that their entitlements accruing from the said employment be paid to them. All of this deals with conditions and terms of employment and so come within the purview of labour under section 7 of the NIC Act. In the last place, we wish to note that the claims of the claimants show a common interest amongst them all and so they are perfectly right in aggregating their interests and bringing this suit jointly. We see nothing wrong with what the claimants have done in this regard. For all the reasons we have given, we are of the firm belief that this court has the jurisdiction to entertain this matter; and we so hold. Ruling is entered accordingly. Hon Justice B.A Adejumo President Hon Justice B.B Kanyip Hon Justice V. N Okobi Judge Judge