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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: FEBRUARY, 8 2011 SUIT NO.NIC/LA/46/2009 BETWEEN 1 Dr. Aina Simeon Abiodun 2 Mr. Ojo Olusoji Isaiah 3 Mr. Kolawola Samuel Kehinde 4 Mr. Fatai Akeem Abiola - Claimants/Respondents AND 1 The Governing Council, Oyo State College of Education, Oyo 2 Oyo State College of Education, Oyo - Defendants/Applicants REPRESENTATION O. K. Salawu, for the Claimants R. A. Olawauwo, for the Respondents. RULING By way of complaint, the claimant instituted this action on the 21st December, 2009 against the respondents wherein the claimants claim the following reliefs – (1) A declaration that the purported termination of the employment of the claimants who are union leaders in the employment of the defendants by the defendants was based on the claimants’ union activities. (2) A declaration that the purported termination of the employment of the claimants who are union leaders in the employment of the defendants by defendants based on the claimants’ union activities is unconstitutional, illegal, null and void and therefore a nullity and of no effect whatsoever or whosoever. (3) A declaration that the purported termination of the claimants employment by the defendant without affording the claimants the opportunity to be heard is unconstitutional, illegal, null and void and of no effect whatsoever. (4) A declaration that the termination of the claimants’ employment is in breach or violation of the claimants’ contract of employment as manifested by the conditions of service and enabling statute creating or establishing the defendants. (5) An order of court reinstating the claimants back to their employment. (6) An order of court compelling the defendants to pay to the claimants all their outstanding salary arrears and other emoluments which the defendants had illegally stopped for no reason whatsoever or howsoever. (7) An order of perpetual injunction restraining the defendants from interfering in the claimants’ duties in the college or victimizing, witch-hunting, or embarking on any disciplinary action against the claimants as a result of their union activities or anything whatsoever. The defendants entered a conditional appearance on the 11th of January 2010, with a statement of defence dated 28th January 2010 and filed on the 29th January 2010. The defendants also filed a notice of preliminary objection along with a written address both dated 28th January, 2010 and filed on 29th January 2010 wherein the defendants challenged the competence of this suit on the following grounds:- (1) That the National Industrial Court lacks jurisdiction to entertain the claimants’ claim of unlawful termination of employment under section 7 of the National Industrial Court Act, 2006 (2) That the action of the claimants is statute-barred against the defendants, an institution of Oyo State Government established under the Oyo State College of Education Law, the suit having been commenced outside the three months limitation period as provided under section 2 of the Public Officers Protection Law Cap. 137 Laws of Oyo State, 2000. (3) That the claimants failed to comply with sections 97 and 99 of the Sheriff and Civil Process Act Cap 56 Laws of the Federation of Nigeria, 2004 by failing to obtain leave to issue and serve the General Forms of Complaint on the defendants out of jurisdiction in Oyo State. The defendants/applicants’ issues for determination are on all fours with the grounds of the objection. Arguing on the first issue, the defendants submitted that the jurisdiction of a court or tribunal is statutory. That in order to determine the jurisdiction of this court, recourse is to be made to section 7 of the National Industrial Court Act 2006, which provides as follows – 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 organizational dispute. (iii) The terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, (iv) any trade union constitution, and (v) any award or judgment of the court. To the defendants, in order to determine whether this court has jurisdiction to entertain the claimant’s suit, it is necessary to examine the General Form of Complaint and statement of facts filed by the claimants in this case. That the Supreme Court in Oloruntoba-Oju v. Adbul-Raheem [2009] WRN 1 at 45, while considering the necessary materials for the determination of the jurisdiction of a court held thus – It has now become legally customary through long practice to determine the issue of jurisdiction of court on the reliefs sought by the claimants in the writ of summons and statement of claim. The defendants also referred the court to Aremo II v. Adekaye & ors [2004] 8 SC 8 at 20 – 21 and Felix Onurah v. Kaduna Refining Petro Chemical Co. Ltd [20025] 6 NWLR (Pt. 921) 393. The defendants further reproduced verbatim the claims of the claimants as endorsed in the General Form of Complaint and paragraph 29 of the statements of facts and submitted that the gist of the claim of the claimants is a claim of unlawful termination of appointment and reinstatement and that by virtue of section 7(1) of the NIC Act 2006, this court lacks jurisdiction to entertain the claimants’ suit founded on unlawful termination of employment. That although section 7(1)(a)(i) gave this court exclusive jurisdiction in civil causes and matters relating to labour, including trade unions and industrial relations, the claim of the unlawful termination of appointment cannot be construed within the provisions of section 7(1)(a)(i) as relating to labour, including trade unions and industrial relations. The defendants further submitted that the claimants in this suit claim to be union leaders under the Association of College of Education Academic Staff Union, Oyo State College of Education Chapter, Oyo Campus. That there is a distinction between trade union cases and cases involving trade union, referring the court to Kalango v. Dokubo [2003] 15 WRN 32 at 67 lines 35 – 40 where the Court of Appeal, per Ikongbeh JCA (of blessed memory) held – There is with respect, a world of difference within the line context of Cap 432 between “trade union cases” and “cases involving trade union” especially having regard to the specialised definition of the term “trade dispute” as prescribed in the Act and the jurisdiction and powers conferred on the National Industrial Court by the Act. When we later come to examine these matters we will see that the expression used by Karibi-White, JSC is synonymous with “trade dispute” whereas “cases involving trade union is a term at large, which would rope in far more matters than is envisaged by the Act. To the defendants, what gives character to a dispute for the purpose of determining whether this court has jurisdiction under the Act is not whether or not the dispute is an inter or intra-union dispute but whether or not the dispute can be described as a trade dispute as defined under the Act. That the Court of Appeal in Kalango v. Dokubo (supra) at pages 67 – 68 held – The learned Senior Advocate has argued as if it is the fact of being an inter or intra-union dispute that puts a dispute beyond the jurisdiction of court other than the National Industrial Court. With respect, nothing could be further from the true position. The truth of the matter, as I see it, is that what gives character to a dispute for the purpose of determining whether the High Court has jurisdiction over it under the Act is not whether or not the dispute is inter or intra union dispute. What gives such the dispute can be described as a trade dispute as defined in the Act. Arguing further, the defendants submitted that trade dispute as defined under section 54(1) of the NIC Act 2006 means any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with – (a) the employment or non-employment of any persons, (b) terms of employment and physical conditions of work of any person, (c) the conclusion or variation of a collective agreement and (d) an alleged dispute. That the claim of unlawful termination of employment in this case is not a trade dispute and does not relate to labour, including trade union and industrial relations under section 7(1) of the NIC Act, and under section 19(1) of the Trade Disputes Act Cap 432 Laws of the Federation 1990 as to confer jurisdiction on this court. That it is the State High Court which has jurisdiction for claim of unlawful termination of appointment. The defendants also submitted that the Supreme Court while interrupting the power and jurisdiction of this court in Oloruntoba-Oju v. Abdul-Raheem [2009] 26 WRN 1 at 36 lines 15 – 25 held – The Industrial Arbitration Panel (IAP) is constituted for the consideration of trade disputes by the Trade Disputes Act Cap 432 Laws of the Federation. By virtue of section 19(1) of the Trade Disputes Act Cap 432 Laws of the Federation, 1990, the National Industrial Court is conferred with powers to settle trade disputes, the interpretation of collective agreements and matters connected therewith. By virtue of section 20(1), the National Industrial Court has exclusive jurisdiction to determine questions relating to the interpretation of collective agreements and make award for the purpose of settling trade disputes. To the defendants, therefore, this court lacks jurisdiction to grant the claimants’ claim for declaration sought by the claimants that their termination is based on their activities as union leaders and other reliefs being sought by the claimants, citing again Oloruntoba-Oju v. Abdul-Raheem (supra) on the jurisdiction of this court to make declaration and orders of injunction and quoting Adekeye, JSC at page 38 lines 35 – 45 thus – Considering the nature and scope of the jurisdiction and power of the National Industrial Court as clearly spelt out in the Act, the court lacks competence to make declarations and orders of injunction of the type sought by the plaintiff/respondents in the instant case. The defendants continued that by the respective letters from the defendants dated 24/09/2009 with Ref: EACOED/Y/F.8.I/vol.II/2 and EACOED/v/R.81/vol.II/4 attached as No. 5 in the claimants’ list of documents, the claimants’ appointments were terminated by the defendants based on the re-organisation of some departments in the defendants’ College when their services were no longer required. That the claimants in their letter dated 7/10/2009 and titled “Re: Termination of Appointment: Appeal for reinstatement” attached as Documents No. 7 in the claimants’ list of documents admitted that the termination of their appointment were due to re-organisation of the defendants. The defendants then submitted that the termination of the claimants was based on re-organisation of the defendants when the services of the claimants were no longer required and the termination of the claimants’ employment was not as a result of their membership of a trade union or allegation of any wrong doing. That the defendants as the employer of the claimants have power to relieve the claimants of their employment when their services are no longer required based on their letters of appointments. Referring the court to the employment letters of the claimants attached as Documents No. 9 in the list of documents. That by paying one month’s salary in lieu of notice any dispute of termination of the appointment based on the re-organisation of the defendant does not confer jurisdiction on this court as the dispute of unlawful termination of appointment is triable at the State High Court. The defendants finally submitted on this issue that this court lacks jurisdiction to entertain a claim of unlawful termination of employment as a result of re-organisation of the defendants, and urged the court to resolve issue one in favour of the defendants. On issue two, the defendants’ contention is that the claimants’ action is statute-barred against the defendants, established by the Oyo State Government and under its law, having been commenced outside the three months limitation period as provided under section 2 of the Public Officers Protection Law Cap 137 Laws of Oyo State, 2000. The said section 2 provides – Where any action, prosecution or other proceeding is commenced, against any person for any act done in pursuance or execution or intended execution of any ordinance or law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any ordinance, law, duty or authority, the following provisions shall have effect: (a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect, or default complained of, or in case of a continuance of damages or injury, within three months next after the ceasing thereof. Provided that if the action, prosecution, or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may commence three months after the discharge of such person from prison. The defendants went on to submit that under section 2(a) of the said law quoted above, this suit is incompetent having been instituted after three months, citing Egbe v. Yusuff [1992] 6 NWLR (Pt. 245) 1 at 12 and Forestry Research Institute of Nigeria v. Gold [2007] 10 SCM 32 at 52 where the Supreme Court while interpreting section 2(a) of the Public Officers (Protection) Act held thus – As can be gathered from the reading the above provision it limits the right to seek legal redress in courts. The clear implication of the provision is that the plaintiff may have a cause of action but cannot enforce it by instituting a judicial process enforce to that effect. This is because the limitation law has elapsed by effluxion of time and so the action is said to be statute-barred. The instant law has three months within which to commence an action on a cause of action that has arisen against a public officer which include in this context persons as the appellant. See also the case of Upper Benue River Basin Development Authority v. ALKA & ors [1998] 2 NWLR (Pt. 357) 328. Furthermore, that under section 18(1) of the Interpretation Act Cap. 192 Laws of the Federation of Nigeria 1990 and section 3 of the interpretation law of Oyo State 2000, “person” includes any company or association or body of persons corporate or incorporate. To the defendants, therefore, the word person is not limited to natural person or human being only. It includes artificial persons such as corporation sole, company or any bodies whether corporate or incorporate. In the case of Ibrahim v. Judicial Service Committee Kaduna State [1998] 12 SCNJ 255 at 290, the Supreme Court held that the phrase “any person” in section 2(a) of the public officer Protection Law include artificial persons. To the defendants, the defendants are a creation of statute by virtue of sections 3 and 4 of the Oyo State College of Education Law Oyo Law 2002 and so are a body corporate and hence persons within section 2(a) of the Public Officers Protection Law. To the defendants, in order to determine whether the claimants in this suit are statute-barred, it is important to establish when the cause of action arose for the purpose of determining when the time began to run for the period of limitation. That in Woherem JP v. Emereuwa & ors [2004] 8 SCM 185 at 195, the Supreme Court in deciding when a cause of action arose held as follows – It cannot be disputed that a cause of action matures or arises on the date or from the time when a breach of any duty or act occurs which warrant the person thereby injured or the victim who is adversely affected by such breach to take action in assertion or protection of his right that has been breached. Also, that in Forest Research Institute of Nigeria v. Gold (supra) at page 43 the Supreme Court per Mukhtar, JSC held thus – How does one determine the period of limitation. The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from the witnesses. If the time on the writ is beyond the period allowed by the limitation law then the action is statute-barred. To the defendants, the claimants by paragraph 18 of their statement of facts and letter of termination of appointment issued to them by the 1st defendant dated 18/9/2009, the claimants’ appointments were terminated on 18/9/2009 by the defendants. That the cause of action arose on 18/9/2009, but for which the claimants filed this suit on Tuesday 21/12/2009, a period outside the three months’ period contrary to section 2(a) of the Public Officer Protection Law. That the claimants’ suit is two days outside the limitation period. This court was then referred to the case of Owners of MV “Arabella” v. Nig. Agric. Insurance Corporation [2008] 11 NWLR (Pt. 1097) 182 at 219 where the Supreme Court held that where a case is statute-barred, the proper order to make is a dismissal of same since section 2(a) of the Public Officer Protection Law has removed the right of action, the right of enforcement and left the plaintiff with a bare and empty cause of action having been extinguished and which is unenforceable in law, citing also Muemue v. Gaji [2000] FWLR (Pt. 16) 2764 at 2774 para C. The defendants then urged this court to dismiss the claimants’ suit as being statute-barred having been brought outside the three months limitation period under section 2(a) of the Public Officers Protection Law. On the 3rd issue, the defendants contended that the claimants’ suit is incompetent and void for the failure of the claimants to obtain the leave of court to issue and serve the General Form of Complaint out of jurisdiction in Lagos State on the defendants in Oyo State in breach of the provisions of sections 97 and 99 of the Sheriff and Civil Process Act Cap. 56 Laws of the Federation of Nigeria 2004 which is the applicable law for service of the court processes outside the state of its issuance, referring the court to Order 7 Rule 10 of the NIC Rules, 2007. That section 97 of the Sheriff and Civil Process Act Cap. 56 Laws of the Federation of Nigeria, 2004 provides – Every writ of summons for service under this part out of the State or the Capital Territory in which it was issued shall in addition to any other endorsement or notice required by the law to such State or the Capital Territory, have endorse there on a notice to the following effect, that is to say This Summons (as far as the case may be) is to be served out of the …State (or as the case may be)…and in the...State (as the case may be). Further, that section 99 of the Sheriff and Civil Process Act provides – The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall not be less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within the writ of summons is issued, not less than that longer period. The defendants submitted that the claimants without the leave of court on 21/12/2009 filed the General Form of Complaint at the registry of this court in the Lagos Judicial Division Holden at Lagos which was served on the defendants outside Lagos State and in Oyo Town in Oyo State on 8/1/2010 without leave of court. And that the General Form of Complaint commanded the appearance of the defendant as against 30 days provided under section 97 of the Sheriff and Civil Process Act and without an endorsement on the General Form of Complaint that “ this summons is to be served out of the…State (as the case may be)...and in the...State (as the case may be)” contrary to section 99 of the Sheriff and Civil Process Act, citing Ben Obi Nwabueze & anor v. Justice Obi Okoye [2008] 12 WRN 123, China Geo v. Isa [2008] 12 WRN 171 at 193 lines 30 – 45 and Owners of M.V. Arabella v. Nigeria Agricultural Insurance Corporation [2008] 8 MJSC 145 at 160 – 162 para G where the Supreme Court held thus – Service of a writ out of jurisdiction is not a matter of court discretion. Not only is it provided for in the rules of the Federal High Court, which provision must therefore be obeyed, it is crucial to the prosecution of an action in the court. This is why without proper service, it follows without more that no valid appearance can be entered by the defendant although a defendant is entitled to and can enter an appearance in protest or a conditional appearance. I note that even the issuance of the said writ of summons which was not endorsed for service of the defendant outside jurisdiction was rightly declared by the learned trial judge as void. This is because of the mandatory nature of the provisions of section 97 of the Act…. In the instant case, since leave was not first obtained before the writ was issued, the writ of summons has been issued without due process of the law, and accordingly has to be set aside for being null and void. The defendants submitted further that the General Form of Complaint of the claimants is void under sections 97 and 98 of the Sheriff and Civil Process Act for failure to comply with under listed legal requirements, namely – 1 No leave was first obtained before the General Form of Complaint which was to be served outside Lagos State and in Oyo State was obtained before the issuance of the General Form of Complaint and service of same on defendant, citing China Geo – Engr. v. Isa [2008] 12 WRN 171 at 198. 2 There is no endorsement under section 97 of the Sheriff and Civil Process Act for the service of the General Form of Complaint on the defendant outside Lagos State and in Oyo State. 3 Under section 99 of the Sheriff and Civil Process Act, the period limited for the appearance of the defendant outside the jurisdiction of issuance and service of the General Form of Complaint is thirty days as against the 14 days the claimants put on the General Form of Complaint. The defendants then urged the court to resolve all the three issues in their favour and set aside the General form of complaint for being void for failure to comply with provisions of sections 97 and 99 of the Sheriff and Civil Process Act and uphold the defendants’ preliminary objection and dismiss the claimants’ suit in limine. In reaction to the preliminary objection, the claimants also adopted the three issues formulated by the defendants. On issue one, the claimants submitted that by virtue of the provisions of section 7 of the National Industrial Court Act 2006, this court has the unfettered and exclusive jurisdiction to entertain civil cases and matters relating to labour. The claimants then reproduced section 7(1)(a) of the NIC Act 2006 and submitted that the said provision has clearly and unambiguously conferred jurisdiction on this court in labour related matters. That the actions of the claimants as could be gleaned from the complaint and the statement of facts is clearly a labour related matter as it relates to the employment or non-employment of the claimants. That the term labour has been defined in the Black’s Law Dictionary, 6th Edition at page 874 “as work, toil, service, mental or physical, and exertion. The term in its ordinary use is synonymous with employment, job, or position, term normally refers to work for wages as opposed to work for profit”. To the claimants, giving the words “relating to labour” its ordinary meaning, thing incidental to labour which include labour contract, and welfare of labour which are the main subject matter of the complaint shown in the statement of facts will readily be accommodated and included within the provision of section 7 of the NIC Act, 2006. That in Lassisi Gbadegesin v. Wema Bank unreported Suit No. NIC/57/2008, this court in its ruling delivered on the 2/4/2009 held that it has jurisdiction to determine cases relating to termination of employment and welfare of labour pursuant to the provisions of section 7 of the NIC Act 2006. The claimants also referred this court to another of its ruling in Mr. Abdul Shaibu v. Noble Drilling Ltd unreported Suit No. NIC/LA/09/2009 delivered on 13/7/2009 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 claimants pointed out that in the above case, section 54 of the NIC Act 2006 was employed and this court came to the conclusion that it has jurisdiction to entertain action relating to employment or non-employment of any person. The claimants then submitted that this court is conferred with unfettered jurisdiction by the provisions of section 7 of the Act to entertain this matter. The claimants disagreed with the submissions of the defendants wherein the defendants cited the Supreme Court’s decision in Oloruntoba-Oju v. Abdul Raheem (supra) to the effect that this court lacks jurisdiction to entertain this action, submitting that the respondents’ argument is misconceived. To the claimants, Oloruntoba-Oju’s case was based on the jurisdiction conferred on this court by virtue of sections 19 and 20 of the Trade Disputes Act 2004, long before section 7 of the NIC Act 2006 was enacted. Also in that decision, the Supreme Court acknowledged that it will take a more specific enactment before this court’s jurisdiction can be enlarged and to the claimants the provisions of section 7 of the NIC Act 2006 is the said specific enactment which has now conferred exclusive jurisdiction on this court in labour related matters. The claimants, therefore, urged this court to discountenance the argument of the defendants regarding the Oloruntoba-Oju’s case as same is misconceived and can easily be distinguished from the facts of this case. On issue two, the claimants’ submission is that this action is not statute-barred and has been filed within three months having regard to the facts and documents before this court. The claimants admitted that the letter terminating the employment of the claimants was dated 18/9/2009, but the claimants did not receive their letter of termination until 22/9/2009, referring the court to the attached list of documents which showed when the claimants were served with the letter terminating their appointment. To the claimants, it is trite law that time does not start running until the claimant received notice of the termination of their appointment through service on them of such letter terminating their appointment. That within that period, there was public holidays which include the two days of idel-fitri, one day for independence holiday and two additional days for idel Kabir, which was on the 26th and 27th of November, 2009, and urged the court to take judicial notice of such public holidays. That all these public holidays are excluded in the counting of the three months because the courts are closed on those days. The claimants then submitted that a subtraction of the five days public holidays in the computation of the three months period will reveal that this action was filed within the time allowed by the Public Officers Protection Act. Furthermore, the claimants contended that even though the defendants argued that the claimants were two days out of time allowed by the Act to file an action, the five days of public holidays within which period the courts are closed will bring the action filed on the 21st of December, 2009 well within the three months allowed by the Act with three days to spare. The claimants then submitted that all the cases cited by the defendants on this point are not relevant to the case at hand since the action was filed well within the three months period allowed by the Act with respect to the five days public holidays within the period and the date the claimants were served with the termination letter (i.e. 22/9/2009). That the cause of action in this case, therefore, arose on the date and time the claimant was served with the letter of termination of appointment. That the computation of three months period will therefore commence from the day the cause of action arose which is the 22nd of September, 2009 and ends on the 22/12/09. The claimants then urged the court to discountenance the argument of the respondent on this point. Continuing, the claimants also argued that the provisions of section 2, Public Officer Protection Act 1990 which places a bar against a claim not brought before the court within three months from the time the cause of action arose is not applicable to a claim relating to labour including non-payment of pension, unpaid salaries, unpaid severance package and contract of employment. That in CBN v. Adejeji [2005] 26 WRN 38, the Court of Appeal held that the privilege provided by the Public Officers Protection Act does not apply to contract cases, recovery of land, claims for work and labour. The claimants in their submission quoted the dictum of Muhammad, JCA, who adopted the words of De Commarmond SPJ as he then was in Salako v. LEDB 20 All NLR 169, where His Lordship construed the provision of section 2 of the Public Officers Protection Ordinance which is almost identical with section 2 of the Public Officer Protection Act and stated as follows – I am of the opinion that section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breach of contracts, claims for work and labour done. The claimants also referred to John Ovoh v. Nigeria Westminister Dredging & Marine unreported Suit No. NIC/9/2002 the ruling of which was delivered on 1/4/2008. This court in that case held as follows – The rights of workers are not caught up by the limitation laws, for to think otherwise would mean that even rights as to salaries and entitlement of an office would be time-barred. That in other words the privilege conferred by the Act does not apply to the kind of labour related issues as the one before this court in the case at hand. The claimants therefore urged this court to discountenance the submission of learned counsel to the respondents that this action is caught up by the provisions of section 2 of the Public Officers Protection Act as same is highly misconceived and erroneous in law since the claim of the claimants as per the complaint of the 21/12/2009 and the statement of facts clearly fall within the exception allowed by the law. The claimants then urged this court to hold that this action is not statute-barred and that the provision of section 2(i) of the Public Officers Protection Act is not applicable to this claim. On the third issue, the claimants argued that the Sheriff and Civil Process Law is not applicable to cases where the service of originating process is within the same jurisdiction or the same judicial division. To the claimants, the jurisdiction of this court as conferred by the provisions of section 21 of the NIC Act 2006 covers the entire States of the Federation of Nigeria. That the opening paragraph of section 21 of the said Act, clearly states that this court shall have and exercise jurisdiction throughout the Federation. That in other words, any complaint issued for service within the Federation or any State of the Federation is deemed to be service within the jurisdiction of the court. That there is thus only one jurisdiction of the court which is the entire Federation of Nigeria. To the claimants, this complaint was issued in Lagos to be served in Oyo town, Oyo State which is within the Federation of Nigeria as contained in Parts I and II of the First Schedule to the 1999 Constitution of the Federal Republic of Nigeria. That Oyo State is presently within the judicial division of the National Industrial Court, Lagos judicial division. The claimants argued further that the one jurisdictional nature of this court could easily be depicted by the rotational policy of the court in moving the court around the entire states of the federation. The claimants therefore invited the court to take judicial notice of the policy of this court which allows matters filed in Lagos to be adjourned for hearing in Abuja or other part of the Federation subject to the convenience of parties and the court. The claimants also pointed out that the argument of the defendants that this complaint was issued outside the jurisdiction of this court and, therefore, requires the leave of court for it to be served pursuant to sections 97 and 99 of the Sheriff and Civil Process Act is totally misconceived and erroneous in law. That the provisions of sections 97 and 99 of the Sheriff and Civil Process Act is not applicable to the instant case as the complaint was issued for service within the jurisdiction of the court and within the same judicial division of the court. The claimants then submitted that the case of Owners of MV Arabela v. Nigeria Agricultural Insurance Corporation [2008] 8 MJSC 145 cited by the respondent is not applicable to this case. The claimants went on to urge the court to discountenance the defendants’ argument on this ground and hold that the complaint was properly issued and served in compliance with the NIC Act 2006 and the NIC Rules 2007. In conclusion the claimants urged the court to dismiss the preliminary objection as same is frivolous, erroneous in law, mischievous and a time wasting devise to further delay the hearing of the suit and thus subvert the cause of justice. In reply on points of law, the defendants submitted that the NIC Act 2006 has no definition of the word “labour”. That section 54 of the said Act only defines “trade dispute” as dispute between the employers and employees and went further to define trade dispute as the employment or non-employment of any person. And that the claim for unlawful termination of employment as contained in the claimants’ General Form of Complaint cannot by every stretch of imagination be defined as labour related matter. That in Yarmouth v. France 19 QBD 651 Ester, MR defined labour as “real labour is that which test a man’s muscles and sinews”. Also that in the book of words and phrases legally defined vol. 3, 3rd ed. by John B. Saunders, labour dispute is defined as including – Any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiation, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. The defendants then submitted that the claim for unlawful termination of appointment relates to breach of contract which is not a labour issue and so this court lacks jurisdiction to entertain same under section 7 of the NIC Act 2006. The defendants further submitted that section 272 of the 1999 Constitution confers jurisdiction on the High Court of a State to hear and determine civil matters or claim and so the claim in issue i.e. the claim of the claimants for unlawful termination of appointment falls squarely within the civil causes in which the State High Court is conferred with the jurisdiction under section 272 of the 1999 Constitution, citing BPE v. NUEE [2003] 13 NWLR (Pt. 837) 382 at 405 paras. D – F. That this court is a court of limited jurisdiction and so section 7 of the NIC Act 2006 cannot override the provisions of section 272 of the 1999 Constitution to oust the jurisdiction of the State High Court to hear and determine cases of unlawful termination of employment. Responding to the claimants’ submission that they did not receive their letters of termination of appointments dated 18/2/2009 until 22/9/2009, the respondents submitted that the press release attached to the statement of facts of the claimants filed on 21/12/2009 clearly showed that the claimants were terminated on 18/9/2009. To the defendants, time begins to run for the purpose of limitation period on the date the cause of action accrued referring this court to Aremo II v. Adekanye [2004] 8 SCM 1 at 23. That the claimants in para 18 of the statements of facts stated that their employment were terminated on 18/9/2009 and so the submission of the claimants that their letters of termination were received on 22/9/2009 is an afterthought and contrary to facts pleaded in paragraph 18 of the claimants’ statement of facts and urged the court to so hold. Also that the contention of the claimants that public holidays are excluded in the counting of the three months for the purpose of limitation is erroneous and contrary to the provisions of section 15 of the Interpretation Act which requires Sundays and Public holidays to be counted except where a person is required to do an act which does not exceed six days, citing Chief Momoh Yusuf Obaro v. Alhaji Salui Ottize [2010] 13 WRN 160 at 171 – 172 to support this submission. On the submission of the claimants that the provisions of the Public Officer Protection Act is not applicable to labour rights, the defendants’ response is that such a submission is wrong and erroneous in law, referring the court to Ebenezer Oyedele Ambode v. Ministry of Foreign Affairs & 2 ors [2004] 26 WRN 134 at 150 – 151, Obiefuna v. Okoye [1961] All NLR 357 and Nigerian Broadcasting Corporation v. Bankole [1972] All NLR 331. That all the cases cited by the claimants in support of this line of argument are not applicable to this case and, therefore, are distinguishable. The defendants also disagreed with the claimants’ submission to the effect that section 21 of the NIC Act 2006 gives this court jurisdiction throughout the Federation even for the purpose of service of processes in any state of the Federation, arguing that the applicable law for the service of the originating court processes from one state to another is the Sheriffs and Civil Process Act and not the provisions of the law setting up the court or the rules of court, referring the court to section 96 of the Sheriffs and Civil Process Act Cap. F35 Laws of the Federation, 2004 and Nwabueze v. Okoye [2002] 10 WRN 123 at 151 – 152 lines 45 – 30 where the court held that – “As regards the case in hand, authority for the service of a writ of summons outside the area of jurisdiction of State High Court which issues it but within the Federation of Nigeria is a matter exclusively within the legislative competence of the National Assembly or the…. That these are clear statutory provision of the service of a writ of summons outside the territorial jurisdiction of a State High Court which issued it but within the Federation of Nigeria. That the service of the claimants’ General Form of Complaint issued in Lagos State to be served on the respondent in Oyo State is regulated by the said Act and not by the law and Rules of this court. Further, that the case of Owners of MV Arabela v. Nigeria Agricultural Insurance Corporation (supra) cited earlier is a case initiated and decided by the Federal High Court which has jurisdiction throughout Nigeria like this court. The defendants, therefore, submitted that the issuance and service of the claimants’ General Form of Complaint by the claimants is incompetent by failure to obtain leave to issue and serve outside Lagos State as required under the provisions of the Sheriffs and Civil Process Act, and urged the court to allow their preliminary objection and strike out the claimants’ suit for want of jurisdiction. We have carefully considered the issues raised in the preliminary objection of the defendants, including authorities cited for and against by the parties. As agreed by the parties in their written addresses there are three issues for the determination of this court. The defendants’ contention in the first issue is that this court lacks jurisdiction to entertain the claimants’ claim of unlawful termination of employment under section 7 of the NIC Act 2006. Their main argument is that the said issue is not a labour issue or one incidental thereto. In arguing this issue, the defendants took the court into an excursion as to the meaning of trade disputes contending in the process that the question of termination of employment is not one of a trade dispute to warrant this court assuming jurisdiction. The court was also taken into an extensive discourse by the defendants on the fact of unionism or lack of it on the part of the claimants and that the reason for terminating the employment of the claimants is that the College was being re-organised and so the services of the claimants were no longer needed on that basis. Thereafter, the defendants went through a diatribe on the authorities that bar this court from making declaratory orders. To take this last issue first, we only need to point out here that sections 16 – 19 of the NIC Act 2006 are very clear in giving specific powers to the court to grant injunctive and declaratory orders. All the authorities cited by the defendants deal with causes of action that arose long before the NIC Act 2006 was passed. On this score, we agree with the submissions of the claimants that those authorities are distinguishable. The next issue is the excursion undertaken by the defendants as to the reason why the claimants’ appointments were terminated i.e. whether the termination was a product of union activities or the product of re-organisation. To say the least, the arguments of the defendants in that regard are premature. They relate to the substantive issues that this court is called upon to adjudicate on. Until the court assumes jurisdiction over the issues, it will be idle to delve into them at this stage of the matter. We cannot, therefore, make any pronouncement on them at this stage. The last issue is whether termination must be a trade dispute before this court can assume jurisdiction over it. We do not think so. Our stance is that the jurisdiction of this court under section 7 of the NIC Act 2006 covers issues well beyond trade disputes. So long as an issue relates to labour or is incidental to labour, this court is vested with jurisdiction to hear and determine it. From the facts available to the court the claimants were employees of the defendants before their employment was brought to an end. This means that the issue involved in this matter has to do with the employment or non-employment of the claimants. Labour dispute is defined in Black’s Law Dictionary 8th Edition at 890, to mean “a controversy between an employer and its employees concerning the term or condition of employment”. In our considered view, therefore, the natural conclusion must be that any controversy between an employer and an employee or employees as in this case on terms and conditions of employment or the employment and non-employment of any person or persons is a labour dispute or matters incidental to labour on which this court is empowered under section 7(1) of the NIC Act to adjudicate. This court has held in a number of cases that issues of termination of employment and matters relating to labour or incidental to labour as provided under section 7(1)(a) of the NIC Act 2006 are triable in this court because this court’s jurisdiction is subject based. See, for instance, the cases of Lasisi Gbadegesin v. Wema Bank unreported Suit No. NIC/57/2008 delivered on 2nd April, 2009, Abdul Shaibu v. Noble Drilling Ltd unreported Suit No. NIC/LA/09/2009 delivered on 13th July, 2009, Mr. C. E. Okeke v. Union Bank Plc unreported Suit No. NIC/LA/09/2010 delivered on 13th December, 2010 and Andrew Monye v. Ecobank of Nig Plc unreported Suit No. NIC/EN/06/2009 delivered on January 12, 2011. We have not been shown any satisfactory reason why we should hold otherwise in this matter. We, therefore, agree with the claimants’ submission on this issue and hold that we have jurisdiction on this ground. This leads us to the issue as to whether the action of the claimants is statute-barred against the defendants. The pertinent question here is whether the issue of a matter being statute-barred should be an issue as to the jurisdiction of the court or should it be one that can only be as a defence to an action? This court has also in a plethora of cases made pronouncements on this issue. In John Ovoh v. The Nigerian Westminster Dredging and Marine Ltd unreported Suit No. NIC/9/2002 delivered on April, 2008, this court held as follows – Whether or not a cause of action is affected by the limitation law as to make it statute-barred is an issue that can only be raised as a defence and not one to be raised as affecting jurisdiction of the court, for a court may have the jurisdiction to entertain a matter but may nevertheless rule in favour of the defence on the ground that the matter is statute-barred. In this sense, the question of limitation of action is simply one of disability. It is not that the claimant has no rightful claim or that the court has no jurisdiction, only that the claimant is disabled by time from pursing the claim in issue. See also NUPENG v. Geco Prakla Nigeria Ltd [2010] 20 NLLR (Pt. 57) 372, PERESSA v. SSASCGOC & ors unreported Suit No. NIC/25/2007 delivered on March 3, 2008 and SSAUTHRIAI v. ASURI & ors unreported Suit No. NIC/LA34/2008 delivered on March 2, 2010. Even aside from this fact, this court has variously held, as submitted by the claimants, that the ventilation of labour/employment rights in a court of law is not covered by the limitation laws. We reiterate this stance while agreeing with the submissions of the claimants in that regard. We, therefore, hold that the present matter at hand is not covered and so cannot be defeated by the Public Officers Protection Law. Lastly, arguments were raised as to whether the claimants failed to obtain leave to issue and serve the General Form of Complaint on the defendants out of jurisdiction in Oyo State. The defendants urged the court to hold this process void for failure to comply with the provisions of sections 97 and 98 of the Sheriff and Civil Process Act as the necessary endorsement on the processes was not done. We must point out that there is a bit of misunderstanding on the part of the defendants. Administratively, no court process in the National Industrial Court can be served on parties without the authorization of at least the Presiding Judge in the case over which the court processes are sought to be served. We are, therefore, at a loss what point the defendants are seeking to make regarding the Sheriff and Civil Process Act. In any event, the particular service of court processes that the defendants are complaining of took place in Oyo State, which by the current administrative set up in the court comes within the territorial control of the Lagos Division of the court. Once again, we are at a loss what the defendants mean by saying that Oyo State is outside the jurisdiction of Lagos Division. Even if Oyo State were to be, the jurisdiction of this court is throughout the Federation. Section 21(1) of the NIC Act 2006 provides as follows: 1. The court shall have an exercise jurisdiction throughout the federation, and for that purpose the whole area of the Federation shall be divided by president of the court into such number of judicial Divisions, as the president may, from time to time, by instrument published in the Federal Gazette decide, and may, designate any such judicial Division or part thereof by such name as he thinks fit. 2. The court may sit in any judicial Division as the president of the court may direct, and he may also direct a number of judges to sit in any judicial Division. In view of the above reasons, we hold that the service of processes emanating from Lagos Division on a defendant in Oyo State is not service outside jurisdiction. In any event, Order 7 Rule 10 of the NIC Rules 2007 provides that – Where any person out of jurisdiction of the court is a necessary or proper party in a matter before the court and it is necessary to serve that person with the originating process or other document relating to the matter, the court may allow service of the process or such other document out of jurisdiction. We therefore hold that the processes in this suit were properly served and are, therefore, competent before this court. On the whole, we hold that this objection fails and is dismissed. The matter shall proceed to trial. We make no order as to cost. Ruling is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip Presiding Judge ………………………………………. ………………………………………… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge