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RULING The claimant commenced an action by a complaint against the defendants dated and filed on February 10, 2012. The claimant is challenging her summary dismissal by the defendants for not following the due process of the law and the 1st and 2nd defendant’s Code of Business Conduct. In that regard, the claimant is seeking for declaratory and injunctive reliefs voiding her summary dismissal and awarding her damages including general damages of NI00,000,000 (One Hundred Million Naira only), exemplary damages of N50,000,000 (Fifty Million Naira only). The claimant is also praying the Court to order the payment of her unpaid expenses and terminal benefits by the defendants. Accompanying the complaint is the statement of facts, the list of claimant’s witness, and the list of the claimant’s documents together with copies of the documents. In reaction, the defendants filed their memorandum of appearance on 21st March 2012. Without filing their statement of defence and accompanying defence processes, the defendants went on to file a motion on notice dated 30th March 2012 but filed on 4th April 2012 and brought pursuant to section 295(2), section “254C(F)(11)(c)” of the 1999 Constitution 1999, as amended, Order 11 Rule 1(1) of the National Industrial Court Rules 2007 and under the inherent jurisdiction of the Court. By the motion on notice, the defendants are praying the Court for an order of case stated to the Court of Appeal over the following constitutional question – Whether the jurisdiction of the National Industrial Court as contained in section 254C(1) of the Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act No. 3 of 2010 extends to all cases of private individual contractual employment or is limited to industrial relations and only to employment matters arising from or connected with trade disputes, collective agreements, labour and industrial actions (the emphasis is the defendants’). As a consequence, the motion is also praying for – 1. An order staying the proceedings before this Court in Suit No. NIC/LA/40/2012, pending the decision of the Court of Appeal on the case stated. 2. Such further or other orders as this Court may deem fit to make in the circumstances. The grounds upon which the application is sought are – 1. It has been settled that the historical jurisdiction of the National Industrial Court is limited to issues of industrial relations, trade disputes, collective agreements and industrial action and to the conditions of employment of workers as defined in the Labour Act. 2. There are no elements in this suit comprising industrial relations, trade disputes, collective agreements and industrial action and to the conditions of employment of workers as defined in the Labour Act. 3. The subject matter of this suit arose from a private individual contract of professional or managerial employment. 4. That the case stated for the decision of the Court of Appeal arises from the interpretation and application of section 254C(1) of the Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act No.3 of 2010 in the present suit. 5. That the case stated for the decision of the Court of Appeal in this application is substantial, being on which neither the Court of Appeal nor the Supreme Court has decided. 6. That the case stated for the opinion of the Court of Appeal is fundamental to the jurisdiction of the National Industrial Court to entertain the present suit and therefore an order staying proceedings pending the decision of the appellate court is in the circumstances necessary. In support of the motion on notice is a 13-paragraphed affidavit deposed to by Faruq Abbas, a legal practitioner in the firm of solicitors to the defendants. Attached to affidavit in support is the letter of appointment of the claimant dated October 21, 2001 wherein she was offered “employment in the position of Human Resources Manager on Job Grade 12 reporting to the General Manager”, upon the terms and conditions listed therein, which included “Annual Basic Salary payable in monthly instalment in arrears, on or before the last day of each calendar month, twelve times per annum and other entitlements”. Both the salary and other entitlements were clearly spelt out in the letter of appointment. Also in support of the motion is the defendants’ written address. The defendants’ written address in support of the application for case stated is dated 3rd April 2012 and gives the background facts of the case. To the defendants, this suit arose from the summary termination for gross misconduct of the claimant’s employment with the 1st defendant. That the claimant had no contract with the other two defendants, who have been joined only for the ulterior purpose of ineffective blackmail and intimidation. The defendants continued that the claimant was employed in a professional or managerial cadre and entered into a private individual contractual arrangement not governed by any collective agreement or industrial rules. That the termination of her employment was also not as a result of any trade dispute or industrial action. To the defendants, the subject matter of this action is an individual professional or executive management contract and no issue of labour relations, trade union relations or industrial relations arises. The defendants then framed the following issues for the determination of this Court – 1. What is the issue? 2. Whether the issue formulated in the case stated for the decision of the Court of Appeal is substantial. 3. Whether the issue formulated meets the other requirements to state a case for the decision of the Court of Appeal. 4. Whether upon the fulfillment of these requirements this Court is bound to do so. 5. Whether upon such reference to the Court of Appeal, the proceedings before this Court in Suit No. NIC/LA/40/2012 should be stayed pending the decision of the Court of Appeal on the case stated. The defendants then addressed these issues under headings and sub-headings. I intend, therefore, to reproduce the treatment of the issues by the defendants in the manner they put them. What is the issue? This question as framed is issue 1 of the defendants, which also entailed a number of sub-themes. From the submissions of the defendants, they are contesting the jurisdiction of this Court over the subject matter of this case. They even filed a motion to that effect, which motion they withdrew on 23rd May 2012 in order to pave the way for this application for case stated to be moved given that the claimant’s counsel raised the objection that an application for case stated cannot be heard unless the court has jurisdiction over the matter in the first place. To the defendants, prior to 2006, it was quite settled that this subject matter was not within the jurisdiction of the National Industrial Court (NIC). That the bringing of this action assumes, therefore, that the 1999 Constitution Third Amendment Act (Third Amendment) altered the settled position of law on the jurisdiction of NIC and extended the subject matter of that jurisdiction. It is the defendants’ contention that the legislature did not intend by the Third Amendment Act to extend the subject matter jurisdiction of the NIC and that they did not do so. That the Third Amendment had two objectives only. The first, to make the NIC a superior court of record; and second, to make its existing jurisdiction exclusive. That the proper construction of the general words used by the legislature to achieve its limited and specific objective cannot be wrestled in aid for the grab of an expanded jurisdiction well beyond that existing before the amendment and whose expropriation will lead to manifest absurdity. To the defendants, the substance of the application is seeking that a case be stated for the decision of the Court of Appeal and a stay of proceedings be ordered pending the expression of that appellate court’s decision. The subject matter for reference is whether the jurisdiction of this Court covers all cases of private contractual employment or whether it is limited to employment matters arising from or connected with trade disputes, collective agreements, labour and industrial actions. Historical Context of National Industrial Court Jurisdiction To be able to answer the question posed by the defendants, they decided to embark on an excursion into the historical context of the jurisdiction of this Court in contrast with the historical context of the Federal High Court. The defendants started with section 19(1) of the Trade Disputes Decree No. 7 of 1976 (Trade Dispute Decree), now Trade Disputes Act, Chapter T8, Volume 15, Laws of the Federation of Nigeria, 2004, which created the National Industrial Court (NIC). That the relevant provision is now section 20(1) of the Trade Disputes Act Cap T8 LFN 2004 and both sections clearly identify the limited scope of the historic jurisdiction of the NIC by prescribing that it – “...shall have such jurisdiction and powers as are conferred on it by this or any other Act with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected therewith (underlining is the defendants’). Section 21 of the Trade Disputes Act Cap T8 LFN 2004 is an identical provision. However, that the National Industrial Court Act 2006 employed a different form of words in section 7 as follows – 7(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 thereof; 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 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. The defendants continued that the NIC has never exercised jurisdiction in individual employment disputes and learned authors acknowledge that the definition of its jurisdiction indicates correctly that “the main concern of the TDA is the issue of group employment disputes”, referring to Oladosu Ogunniyi – Nigerian Labour and Employment Law in Perspective (2004), 2nd Edition. That in a well¬-received presentation to the Annual General Conference of the Nigerian Bar Association in Calabar 2001, I, writing extra-judicially, advocated a change of this settled position. Historically Non-Exclusive The defendants went on to assert that historically too, the jurisdiction of the Court was non-exclusive. That in addition to the limited scope, the Supreme Court decision in Nigerian Union of Electricity Employees v. Bureau of Public Enterprise [2010] 7 NWLR (Pt. 1194) 538 rejected exclusive jurisdiction of the NIC; and in the earlier case of Oloruntoba-Olu v. Dopamu [2008] 7 NWLR (Pt. 1085) 1 at 30 B – D, per Oguntade, JSC, the Supreme Court held that to give jurisdiction in all matters relating to disputes in employment matters will clearly over burden a special purpose court which the National Industrial Court was designed to be. The Court was also referred to AG, Oyo State v. NLC [2003] 8 NWLR (Pt. 821) 9, per Onalaja, JCA at 35 D – G. Historically Not a Superior Court Furthermore, that the Court was historically not a superior court. To the defendants, the Trade Disputes Decree 1976 did not make the NIC a court of superior record, but the Trade Disputes Act Cap. T8 LFN 2004 (Trade Disputes Act) purported to make it so. That the Courts in a long line of cases rejected this attempt because NIC had not been listed as a superior court of record in the 1999 Constitution as was the decision of the Supreme Court in National Union of Electricity Employees v. Bureau of Public Enterprise [2010] 7 NWLR (Pt. 1194) 538. Express Intention of 1999 Constitution Third Amendment Act The defendants then went on to what they termed express intention of the 1999 Constitution Third Amendment Act. That fresh controversy over the Court’s jurisdiction arose from the addition in section 7(i)(1) of the general words “labour” and “employment”, to comprise the un-contentious “trade unions and industrial relations”. That in a succession of cases, the NIC itself brushed aside challenges and asserted an increased jurisdiction. In the case of Andrew Monye v. Ecobank Nigeria Plc (unreported) Suit No. NIC/EN/06/2009 The Court held that the National Industrial Court has jurisdiction over matters dealing with termination of employment. The Court at page 4 of the judgment held as follows: “This court has held in a plethora of cases that issues of termination of employment are matters relating to labour or at least they are matters incidental to labour as provided in section 7(1)(a) of the NIC Act 2006, as the jurisdiction of this court is subject based”. This same position was restated by the NIC in Lasisi Gbadegesin v. Wema Bank (unreported) Suit No. NIC/57/2008. To the defendants, however, the use of the otherwise innocuous general words in the genus of industrial relations emphasized that it was disputes within industrial relations and trade union disputes according to the historic provenance of the Court that were covered. In particular, that it has never before 2007 been contended successfully that every contract of employment was within NIC jurisdiction. The 1999 Constitution was amended on 4th March 2011 to make the NIC a superior court of record under the Constitution. This is clear from its long title being – An Act to alter the Constitution of the Federal Republic of Nigeria Cap C.23, Laws of the Federation of Nigeria, 2004 for the establishment of the National Industrial Court under the Constitution. The defendants went on that in effecting this object, section 254C(1) of the 1999 Constitution, as amended, provides (“Notwithstanding the provisions of sections 251, 257, 272”) inter alia for NIC, “jurisdiction to the exclusion of any other court in civil causes and matters relating to or connected with” several matters within its previously settled jurisdiction. That the immediate context for the powers prescribed in section 254C(1) are those in the succeeding sub-sections (b) to (k) as follows – (b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Workmen’s 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, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or an 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 the Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s 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 workplace; (h) relating to connected with or pertaining to the application or interpretation of international labour standards; (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 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) terms 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 disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, a judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto. To the defendants, the mischief of the 1999 constitutional amendment was not the scope of jurisdiction of NIC, but rather the exclusivity and the status of the court. That this is clear from the legal context, the state of law at that date and also the long title, which is an aid to construction. That the novel question arising here is whether in this legal context, the use in sub-section (a) of the additional words “labour” and “employment” was intended to alter and expand the existing settled jurisdiction and oust the jurisdiction of every other court on non-industrial relations disputes. The provision of the critical sub-section (a) is – matters 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 matters incidental thereto or connected therewith. Approach to Determining Courts Jurisdiction On the approach to determining a court’s jurisdiction, the defendants submitted that it is trite that a court cannot exercise power in respect of a subject matter unless that subject matter is within its legal jurisdiction. That the courts have laid down extensive guidance on the attitude of any court when it is asked to consider a challenge to its jurisdiction over any subject presented to it. Some of these were highlighted by Oputa, JSC in African Newspapers of Nigeria v. Federal Republic of Nigeria [1985] 4 SC 76 at 122. The court is not hungry after jurisdiction (Sir Williams Scott, The Two Friends (1799) IC Rob Rep. 280); “We ought not to overstep our jurisdiction because we think it might be advantageous so to do”. Rigby, L.J., In re Watkins (1896) LR 2 CD (1896) 339; “It is part of my duty to expound the jurisdiction of the Court. It is no part of my duty to expand it”. Kekewich, J., In re Montagu (1897) L R 1 CD (1897) 693 “I agree we ought not to encroach or enlarge our jurisdiction; by so doing we usurp both on the right of the Queen and the people”. Holt, C.J., Ashby v. White (1703) Lord Raym. 938. A court cannot give itself jurisdiction. By misconstruing a statute and all authority must construe the construction of a statute touching on jurisdiction with caution. Literal Meaning The defendants then asked the question: when the legislature added “labour” and “employment” to the description of jurisdiction in 2006 and 2011, did it intend to oust the jurisdiction of other courts and expand the jurisdiction of NIC over trade disputes? That these words must first be considered in their ordinary English meaning, then their meaning in the context of existing labour statutes and case law in order to support any theory that these general words have affected the removal of jurisdiction in other courts and reposed them in the NIC. The subject matter of the Labour Act is workers’ rights as those are defined in this law. These are rights and relations consistent with the Trade Disputes jurisdiction; the Workmen's Compensation Act (now Employees compensation Act) and the scope of the settled jurisdiction of the NIC. The general meaning of labour (outside this context) is: Work; toil; service; mental or physical exertion. The term in its ordinary use is synonymous with employment, job or position. The term normally refers to work for wages as opposed to work for profits; though the word is sometimes construed to mean service rendered or part played in the production of wealth. The defendants then referred the Court to Sunday Oshodi Apena v. National Union of Printing, Publishing and Paper Products unreported Suit No. CA/L/33?/95, where the Court of Appeal (Lagos Division) considered the meaning of “worker” being the persistent subject matter of the Trade Disputes (Amendment) Decree No. 47 of 1992. The Court concluded that “the word ‘workers’ (which by section 14 of the Interpretation Act Cap. 192 of the Laws of the Federation includes the singular) encompasses a class of employees who are engaged in a trade or industry and whose contracts of employment come within the Act such class of employees would constitute the membership of a trade union as the respondent in this matter”. The defendants continued that similarly, the Labour Act extensively regulates “Contracts of employment” in relation to “workers” which word is defined in section 91 of the same Act as: “Worker” means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, but does not include – (a) any person employed otherwise than for the purposes of the employer's business; or (b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or (c) members of the employer’s family; or (d) representatives, agents and commercial travelers in so far as their work is carried on outside the permanent workplace of the employer’s establishment; or (e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material; or (f) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply. To the defendants, this is the contextual meaning of the general word employment otherwise defined as “Act of employing or state of being employed; that which engages or occupies; that which consumes time or attention; also an occupation, profession, trade, post or business” (the source of this definition is not disclosed). The defendants went on that the other key expression in the same genus is “Industrial Relations”, which colours the earlier general words. It includes all phases of relations between employer and employee, including collective bargaining, safety, employment benefits, etc. Continuing, the defendants posited that a similar approach was recommended by the Supreme Court in construing the jurisdiction of the Federal High Court in the case of Jamal Steel Structures Ltd v. African Continental Bank [1973] NSCC 619, where the issue for the determination of the Court was whether it was the Federal High Court or the State High Court which had jurisdiction to entertain a matter between a Bank and its customer. The provision of the Decree which the Supreme Court was called to interpret was section 7(1)(b)(iii) of the Federal Revenue Court Decree 1973 which provides thus – This Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters – (a) Relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party; (b) Connected with or pertaining to – (i) The taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation, (ii) customs and excise duties, (iii) banking, foreign exchange, currency or other fiscal measures. That the argument of the appellant in this case was that since the above section states that the Federal Revenue Court shall have jurisdiction on matters “relating to banking” it simply means that the Federal Revenue Court shall have jurisdiction on ALL matters dealing with banking including matters between a bank and its customers, That the Supreme Court however rejected the position of the appellant by holding that the word “banking” must be interpreted in line with “fiscal measures” because using the ejusdem generis rule, it would be seen that the intention of the lawmaker was to make the Federal Revenue Court have jurisdiction over banking matters related to fiscal measures and not just any kind of banking matters. The court decided, therefore, that the State High Court and not the Federal High Court would entertain any dispute between a banker and its customer. That Elias, CJN at 627 paras 20 – 25 stated as follows – After a very careful consideration of all arguments put before us, we think that the ejusdem generis rule applies to the interpretation of section 7(1)(b)(iii) with the result that the word “measures” must be taken to qualify each of the preceding specifically enumerated subjects, including “banking”. This means that the natural and ordinary meaning to be given to the subsection is that it should be as “banking measure, foreign exchange measures, currency measures or other fiscal measures. To the defendants, it is important to note that the Supreme Court in interpreting the word “banking” in this case considered the reason why the Revenue Court was established and it held that since the Court was established to handle matters relating to the revenue of the Federal Government, it therefore goes without saying that the word “banking” means banking relating to policies/matters that involves the Federal Government and not “banker customer relationship”. This was one of the reasons why the Supreme Court considered “banking” as used in section 7 to mean, “Banking measures”. Based on the foregoing, it was the contention of the defendants that the mere fact that “employment”/“labour” is used in the 1999 Constitution, as amended, does not necessarily mean that the NIC would have jurisdiction over all matters relating to all kinds of employment. That the word “employment” as used in the 1999 Constitution, as amended, would have to be interpreted in line with the historical jurisdiction of the NIC and if this is done, it would be seen clearly that it was never the intention of the legislators to endow the NIC with exclusive jurisdiction over matters relating to employment contracts between an executive and his employer. Thus, if the word “employment” were interpreted using the ejusdem generis rule, the result would be that the NIC does not have jurisdiction over matters relating to private contractual employment. The decision of the Supreme Court in Jamal’s case (supra) was upheld by the Supreme Court in Bronik Motors Ltd v. Wema Bank Ltd [1983] NSCC 226. That same is consistent with the Court of Appeal decision in Kalango v. Dokubo [2003] 15 WRN 32. The Court of Appeal had considered a nascent controversy over the determination of “inter-union” and “intra-union” disputes. It was argued that because the dispute between the parties is an intra-union dispute and the union, of which they are members, is a trade union, the plaintiffs/respondents are automatically denied access to a State High Court by operation of the provisions of section 1A of Cap. 432 introduced into the Act by Decree 47 of 1992. That the Court held that the idea that these cases were limited to the NIC was an unduly expansive view of the amendment. The correct manner of approaching the scope of NIC jurisdiction was not to bear on single words or expressions outside context, but rather to consider whether the dispute falls within the overarching subject matter of “trade dispute” as defined in the Act. In Kalango v. Dokubo (supra), Ikongbeh, JCA held as follows – In the light of the...state of the law it would no doubt amount to interpolations in interpretation should the court begin to open a new category of disputes not in any way even remotely connected to trade disputes and to categorize such new categories as falling under the Trade Disputes Act as that is not the purpose, import or intendment of these legislations. To the defendants, “to apply the words ‘any other inner or intra-union dispute’ outside the scope of trade disputes would lead to an absurdity as where members of a union have disagreement such as bordering on assault, defamation or breach of trust or contract are in fact such issues because there are disputes between members of a union”. Legal and Logistical Absurdity of taking Over the jurisdiction of the High Courts in all Master and servant Matters To the defendants, as has been argued above, these sections rely on the conjunctive use of general words in an attempt to encircle subject matter over which the other High Courts exercise constitutional jurisdiction. Therefore, the literal construction of these sections would be to the effect that any matters arising from the workplace, any dispute over the interpretation or application of Chapter IV of the Constitution in a work place situation and any dispute over salaries or terminal benefits shall be dealt with exclusively by the National Industrial Court. That because section 254C(1) of the 1999 Constitution makes the jurisdiction exclusive, any subject matter so included will be removed from the jurisdiction then enjoyed by other courts. It is a huge subject matter, which goes so low as to domestic contracts in every village in Nigeria. The jurisdiction of magistrate’s courts and High Courts across the Federation would be ousted and placed upon the small shoulders of the NIC. It is submitted that the absurdity of such literal interpretation is inherent, it would mean that in any workplace or related matter arising from a dispute between a domestic staff and his employer, or a multinational company and its employee or a government office and its officer, no other court would have the jurisdiction to determine the matter except the NIC. The Court was referred to Ojukwu v. Obasanjo [2004] 12 NWLR (Pt. 886) 169 at 209 – 210 H – B, where Onu, JSC held that – Thus, where the literal interpretation of a word or words used in any enactment will result in an absurdity or injustice, it will be the duty of the court to consider the enactment as a whole with the view to ascertain whether the language of the enactment is capable of any other fair interpretation, or whether it may not be desirable to put a secondary meaning on such a language or even to adopt a construction which is not quite strictly grammatical. Also that in Awolowo v. Shagari & ors [1979] NSCC Vol. 12 page 87 at 113 paras 10 – 15, the Supreme Court per Obaseki, JSC quoted with approval, Parke, B in the case of Becke v. Smith (1836) 2 M & W191 at p.195 as follows – It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience, but no further. The defendants then submitted that the amendment to the 1999 Constitution cannot take away or transfer the jurisdiction of the other High Courts because the words used were clearly ambiguous in context and the effect of applying a literal interpretation of these words to grant jurisdiction to the NIC over all employment and employment related matters would be absurd. Proper Construction It is the conclusion of the defendants that the words used were general and do not warrant a grab for overbearing jurisdiction for the NIC by the constitutional amendment. That the standard for construing any statute that seeks to oust, limit or transfer the jurisdiction of the court is that the words used in such statute must be clear and unambiguous. The following cases, indeed the body of case law on ouster/limitation/transfer of jurisdiction, have applied this same principle with the effect that where the words used are not clear and unambiguous in removing or limiting the jurisdiction of the court then the law would be construed in favour of the court retaining its jurisdiction. That in Ajuebor v. Attorney-General of Edo State [2001] 5 NWLR (Pt. 707) 466 at 481 C – D where the Court held that although the law is settled that courts guard their jurisdiction jealously, if however, the court’s jurisdiction is expressly and unambiguously ousted by the provisions of the Constitution, then there must be a compliance with such an ouster. Also in AG Federation and 2 ors v. C. O. Sode and 2 ors [1990] 1 NWLR (Pt. 128) 500 at 537 G – H, it was held per Karibi-Whyte, JSC – Hence when the words of a statute suggest that the court shall not have jurisdiction, it is of critical importance for the court to construe the words of the provision very carefully and to gather from the words used the nature of the ouster. Also in the case of Olaniyi v. Aroyehun [1991] 5 NWLR (Pt. 194) 652, the Supreme Court held at page 690 D – F per Nnaemeka-Agu, JSC as follows – There is a presumption that a Constitution, as well as other statutes, does not create new jurisdictions or enlarge existing ones save by express words...The courts have always viewed the question of transfer of jurisdiction from one organ or even one set of courts to the other most seriously. They always insist on express words to do so; see Smith v. Brown (1871) 10 App. Cas.59. That in Attorney General of Federation v. Abubakar [2007] 10 NWLR (Pt. 1041) 1 at 145 B – C Tabai, JSC held that – But where, as often happens, the language is imprecise and ambiguous as to lead to more than one meaning, the court will consider some external circumstances to discover the real intention of the law maker. To the defendants, the law is that where no reasonable literal interpretation of a statute can be achieved, the courts may revert to the intention of the lawmaker as contained in the statute and such intention can be deduced from the object or scope of the legislation as shown in the long title. That this is what was recommended in Bello v. Attorney-General Oyo State [1986] 5 NWLR (Pt. 45) 828 at 871 E – F, per Karibi-Whyte, JSC in the following words – The long title of a statute is now accepted as an important part of it and may be relied upon as explaining its general scope and aids in its construction. Thus, in this case, the general scope of the Torts laws as stated in the long title is inter alia to provide for the compensation of the families of deceased persons killed by accidents. However, in determining the meaning of the provisions of the law, it is to the section construed that the interpreter should first seek assistance. Where the meaning of the words used in the section are clear and unambiguous that meaning governs. It is not permissible to look at the scope of the title to modify the interpretation of the plain words of the section. The Court was further referred to Okeke v. AG Anambra & ors [1992] 1 NWLR (Pt. 215) 60 at 86H, per Uwaifo, JCA; Osawaru v. Ezeruika [1978] NSCC 390 at 399 paras 5 – 20, per Anagiolu, JSC; and Vacher v. London Society of Compositors [1913] AC 107 at 128, per Lord Moulton. The defendants went on to quote the long title of the Third Alteration to the 1999 Constitution, which is – An Act to alter the Constitution of the Federal Republic of Nigeria Cap C.23, Laws of the Federation of Nigeria, 2004 for the establishment of the National Industrial Court under the Constitution. The defendants then submitted that when the long title is considered, then the intention of the law maker behind the amendment was simply to establish the National Industrial Court under the Constitution. They submitted that the application of the relevant rules of statutory interpretation will also reveal the intention of the lawmaker in amending the Constitution. That the Mischief Rule of statutory interpretation is the relevant rule of interpretation in this regard because it does the following – a) considers the state of the law before the enactment; b) the defect which the statute sets out to remedy and/or prevent; c) the remedy adopted by the legislature to cure the mischief; and d) the true reason of or behind the remedy. The court was referred to Engr Charles Ugwu & anor v. Senator Ifeanvi Ararume [2007] 12 NWLR (Pt. 1048) 367 at 439; Wilson v. A.G. Bendel State [1985] 1 NWLR (Pt. 4) 572 and IBWA v. Imano [1988] 3 NWLR (Pt. 85) 633. That it was held in these cases that the duty of the court upon the application of the Mischief Rule is to make such construction that will suppress the mischief and advance the remedy. The mischief which section 254C(1)(a) – (k) sought to address was the non-exclusive jurisdiction over trade disputes, labour and collective agreement matters. Even though it is arguable that the above section has suppressed the mischief, it advances no remedy by extending the NIC jurisdiction into subject matter over which it had never exercised jurisdiction and from which no mischief had occurred. Furthermore, that the historical objects for which a court was established play a key role in interpreting a statute seeking to vest it with jurisdiction and, therefore, should be considered where ambiguity or absurdity arises upon a literal interpretation of the statute, citing in support the cases of Oloruntoba-Oju v. Dopamu (supra) per Oguntade, JSC, where the court held that to give jurisdiction in all matters relating to disputes in employmet will clearly over burden a special purpose court which the National Industrial Court was designed to be and Bronik Motors v. Wema Bank [1983] 14 NSCC 227 at 246 “paras 50 – 50”, per Nnamani, JSC which held – Should there still be any lingering doubts as to the proper meaning of section 230(1)(b), I would suggest that it is legitimate to look back at the history of the processes which brought the 1979 Constitution, and particularly section 230, into being. “The Court” said Sir George Jessel MR “is not to be oblivious of the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the legislature, yet when the history of law and legislation tells the Court, and prior judgments tell this present Court, what the object of the legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to find out what it means, and not with a view to extending it to something that was not Intended”. See Holmes v. Guy (1877) 5 Ch.D 901 at 905. In Knowlton v. Moore 178 U.S. 41, 20 S.Ct. 747 at p. 768. Justice White, while delivering the opinion of the Supreme Court of the United States, used these words, which I find apposite: The necessities which gave birth to the Constitution, the controversies which preceded its formation, and the conflicts of opinion which were settled by its adoption, may properly be taken into view for the purpose of tracing to its source any particular provision of the Constitution in order thereby to be enabled to correctly interpret its meaning. To advert to the case in hand, the argument in support of such extensive jurisdiction for the Federal High Court must be set against the fact that the establishment of that Court was a decision of the Constituent Assembly. The Constitution Drafting Committee did not recommend it in its draft rather it recommended State High Courts as the only High Courts in the Federation. In its Report (Reports of the Constitution Drafting Committee Vol. 1 at p. xxv)…Those historical facts leave me in no doubt that it was the intention of the framers of the Constitution to confer unlimited jurisdiction on the State High Courts. It was deliberate. Also referred to the Court is Jammal Steel Structures Ltd v. ACB [1973] 8 NSCC 619 at 629 paras 10 – 20 where Elias, CJN said – We also think that another reason for giving section 7(1)(b)(iii) of the decree the construction we have adopted is that the true object and purpose of the Federal Revenue Court Decree as can be gathered from the four corners of it, is the more expeditious dispatch of revenue cases, particularly those relating to personal income tax, company tax, customs and excise duties, illegal currency deals, exchange control measures and the like, which State High Courts were supposed to have been too tardy to dispose of especially in recent years. It does not seem to us that the legislative intention behind the Decree was to clutter up the new Revenue Court with ordinary cases involving banker/customer relationship such as disputes in respect of overdraft, or the negligent payment of a forged cheque or negligent dishonoring of a customer’s cheque – all banking transactions having nothing to do with Federal concern. Proper Construction This is the second sub-head bearing the title, ‘Proper Construction’. To the defendants, the NIC’s historical jurisdiction did not extend beyond trade disputes, labour and collective bargaining matters for over 30 years. That the jurisdiction over employment matters outside trade disputes, labour or collective bargaining issues has always belonged to the High Courts. The general words employed in the relevant section do not on their face indicate any intention to [do] away [with] the jurisdiction of the other High Courts. The Constitution Amendment Act made no express mention of the withdrawal of this subject matter from under the jurisdiction of the High Courts and so has not complied with the requirement that a court’s jurisdiction may only be ousted or limited or transferred by clear and unequivocal words. On a literal construction of section 254C(1)(a), (d) and (k) (outside its textual and legal context), inherent absurdity is created and it must be presumed that no legislation is intended to produce unreasonable results. The effect of the literal interpretation of the section requires that the intention of the lawmaker is discovered and this can be deduced both from the long title and the application of the Mischief Rule. The history and objects of the court may also be employed to properly construe the section in question. It was then the submission of the defendants that upon the application of the relevant rules of construction that the following is revealed – a) The implication of the literal application of those words will create an inherent absurdity. b) The intention of the law makers in amending the Constitution was to establish the Court under the Constitution. c) The mischief which the Court was faced with was its lack of superior status and non-exclusive jurisdiction over the limited subject matter it had historically dealt with. d) The historical objects of the Court support a limited jurisdiction as do the legal and textual context of the words to be construed. e) The Third Amendment to the 1999 Constitution should be construed according to the intention of the lawmakers, the historical objects of the Court and to suppress the mischief the court had previously encountered by advancing only those sections that remedy it. Whether the Issue Formulated by the Defendants Meets the other Requirements to State a Case for the Decision of the Court of Appeal To the defendants, the requirements for stating a case for the decision of the appellate court are provided under the 1999 Constitution, as amended. Section 295(2) of the 1999 Constitution, as amended provides – Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or National Industrial Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision. In addressing this issue, the defendants referred the Court to a number of cases. The first is that of the Supreme Court where Karibi-Whyte, JSC interpreted the above constitutional provision in Bamaiyi v. Attorney General of the Federation [2001] 12 NWLR (Pt. 727) 468 at 495 F – H as follows – The section has also prescribed when and by whom the provision can be invoked. The Court is vested with discretion to invoke the provision suo motu and also if the parties to the proceedings so request. Thus the Court may suo motu and must take the reference on the parties’ request. An important element is that the question must arise in the proceedings before the court, and it must involve a substantial question of law. This last mentioned ingredient is the overriding factor in determining whether a reference of a constitution should be made. In recognition of the crucial importance and utility of the provision, it has formed part of every Constitution since 1960. The second case referred to the Court is Rossek & 2 ors v. African Continental Bank Ltd & 2 ors [1993] 8 NWLR (Pt. 312) 382 at 451 E – G where Ogundare, JSC said – The two immediately previous Constitutions of Nigeria carried provisions which were in pari materia with those of section 259 of the 1979 Constitution. The Nigeria (Constitution) Order in Council, 1960 L.N. 159 of 1960, provided for “The Constitution of the Federation of Nigeria”. Section 108 thereof provided for reference to the “Federal Supreme Court” of questions as to interpretation of the Constitution, from Courts subordinate to the High Court to the High Court and from the High Court to the Federal Supreme Court. In identical terms, the Constitution of the Federation 1963 No. 20 of 1963, in its section 115 provided for references from the subordinate Courts to the High Court and from the High Court to the Supreme Court. In all provisions of the three Constitutions it was required that the matter for reference – i) must involve “a substantial question of law” ii) in which case – a) The Court may refer the matter to the Supreme Court (or Federal Supreme Court under the1960 Constitution), and b) The Court shall, if any party to the proceedings so request, refer the matter to the Supreme Court. The third case is Obi v. INEC [2007] 11 NWLR (Pt. 1046) 460 at 488 B – C, where Fabiyi, JCA (as he then was) held as follows – Parties are ad idem that the determinants for a proper case of reference from a lower court to this Court based on section 295(2) of the 1999 Constitution are as follows – a) The question for referral must be as to interpretation of the Constitution. b) It must arise from the proceedings of the lower court. c) It must involve a substantial question of law. The defendants then submitted that it is clearly distilled from the foregoing that for an issue to meet the requirements to be stated for the decision of the Court of Appeal it must arise from the interpretation of the Constitution; it must arise from proceedings before the lower court and it must involve a substantial question of law. That upon a prima facie perusal of the issue formulated, it is clear that it has arisen in the course of the proceedings before this Court in Suit No. NIC/LA/40/2012 and it is also manifestly clear that it involves the interpretation of the 1999 Constitution, as amended. To the defendants, they have already argued the substantiality of the issue. They consequently submitted that the case stated by them meets all the requirements for stating a case before the Court of Appeal and then urged the Court to so hold. Whether the Issue Formulated In the Case Stated for the Decision of the Court of Appeal is Substantial To the defendants, in several cases, the courts have supplied guidance on the determination of when an issue involves a substantial point of law. That in Bamaivi v. Attorney General of the Federation [2001] 12 NWLR (Pt. 727) 468 at 496 D – E, Karibi-Whyte, JSC stated as follows – The phrase “substantial question of law” is difficult to define exhaustively. What amounts to a substantial question of law has been stated to be a matter “on which argument in favour of more than one interpretation might reasonably adduced”. It must also be one which is incapable or being formulated with precision. That in Obi v. INEC [2007] 11 NWLR (Pt. 1046) 460 at 488 D – E, Fabiyi, JCA (as he then was) held – The 3rd requirement has been held to mean point of law which is capable of more than one interpretation…It must be a point of law of general public importance or interest. It must directly and substantially affect the rights of the parties, or it is still an open question that has not been pronounced upon in a binding decision of the Supreme Court or is not free from difficulty or there is confusion as to what the law is on the point. Also in African Newspapers of Nigeria Ltd & 2 ors v. Federal Republic of Nigeria [1985] 2 NWLR (Pt. 6) 137 at 149 – 150 H – B, Aniagolu, JSC held – The issue of what is a substantial question of law is, of course, for the court to decide and in doing so a guide may be gathered firstly from the formulation made by the Federal Supreme Court in Gamioba v. Ezesi II [1961] 1 All NLR 584 at 588 where the Court stated that – We shall not attempt a complete definition of what amounts to a substantial question of law, but it must clearly be one on which arguments in favour of more than one interpretation might reasonably be adduced. The defendants then submitted that in the light of the foregoing cases, the issue formulated by them to be stated for the determination of the Court of Appeal is substantial, urging this Court to so hold for the following reasons – 1. It is an issue which has not been determined by either the Court of Appeal or the Supreme Court. 2. It may affirm the historical jurisdiction of this Court under section 254C(1) as being limited to issues of labour; trade disputes; collective agreements and industrial action or it may be decided that this Court’s jurisdiction extends over all cases of employment. 3. It is an issue of fundamental public importance, which may lead to a floodgate of litigation before this Court. Whether upon the Fulfillment of the Requirements to State a Case for the Decision of the Court of Appeal, this Court is Bound to do so It is the submission of the defendants that while it is within the discretion of this Court to determine if an issue arising in the proceedings meets the requirement for reference to the Court of Appeal and suo motu make a reference to that court, once a request has been made by any of the parties and the requirements have been met, this Court is bound to refer the case stated to the Court of Appeal, citing Bamaiyi v. Attorney General of the Federation [2001] 12 NWLR (Pt. 727) 468 at 495 F – H and Rossek & 2 ors v. African Continental Bank Ltd & 2 ors (supra) 382 at 451 E – G. In the circumstance, the defendants submitted that the defendants’ application before this Court qualifies as such request and that if this Court determines that the requirements for stating a case for the decision of the Court of Appeal have been met, it is bound to refer the issue formulated by the defendants to that Court. Whether upon such Reference to the Court of Appeal, the Proceedings before this Court in Suit No. NIC/LA/40/2012 should be Stayed Pending the Decision of the Court of Appeal on the Case Stated To the defendants, the preeminent point arising from this issue is whether this Court can stay its proceedings where its rules of practice and procedure do not expressly provide such power. The point devolves upon the status of this Court and the inherent power which courts of identical status possess. That section 6(3) and (5)(cc) of the 1999 Constitution (as amended) the National Industrial Court has been established as a superior court of record. Furthermore, that by virtue of section 254D(1) of the 1999 Constitution, as amended, this Court has been granted identical powers with the High Court It is the submission of the defendants that insofar as the NIC has been established as a superior court of record with identical powers as the High Court, it has inherent power to stay proceedings in this suit. That the power is discretionary, urging the Court to stay proceedings in Suit No. NIC/LA/40/2012 pending the decision of the Court of Appeal on the case to be stated to it. Conclusion In conclusion, the defendants urged the Court upon the following points – a) The issue formulated in the case stated for reference to the court of appeal is substantial. b) The issue formulated in the case stated for reference to the court of appeal meets the other requirements of the law for such reference. c) This Court is mandated to refer the issue to the Court of Appeal, if it meets the requirements of the law for such reference. d) This Court should in the circumstances, stay proceedings in Suit No. NIC/LA/40/2012 pending the decision of the Court of Appeal on the case stated. The defendants then urged the Court to grant the prayers sought in this application. The claimant reacted to the application for case stated by filing a notice of preliminary objection date and filed on 20th April 2012, and brought pursuant to Order 11 Rule 1 of the NIC Rules 2007, section 6(6)(a) of the 1999 Constitution, as amended and under the inherent jurisdiction of the Court. By this preliminary objection, the claimant prayed for an order striking out the defendants’ application for case stated, it being incompetent, and for such order(s) as the Court may deem fit to make in the circumstance. The grounds upon which the preliminary objection is based are – 1. The application for case stated does not comply with the constitutional requirements under section 295(2) of the 1999 Constitution 1999 (as amended) in that – a) The proposed question does not attain the substantiality threshold required under the Constitution of the Federal Republic of Nigeria (as amended) nor identifies any substantial issue of law. b) The proposed question has not arisen in the course of the proceedings. c) The proposed question only identifies hypothetical questions. d) The proposed question does not identify for interpretation, any specific provisions or jurisdictional subject in the Constitution. e) The proposed question proposes that the Court of Appeal to resolve or make findings of fact. 2. The application for case stated is not a cognizable method of challenging the jurisdiction of this Court as only a Court that is seised with jurisdiction can grant a request for reference or take any steps in the proceedings before it. In support of this preliminary objection is the claimant’s written address dated 20th April 2012. Because the grounds upon which the preliminary objection is based are grounds that conveniently answer the application for case stated, I indicated to both parties that the claimant’s preliminary objection will be treated, not as an objection as such, but as the claimant’s answer to the application for case stated. By way of introduction, the claimant asserted that the application for case stated is not only misconceived, it is entirely incompetent as it fails to attain the pre-conditions prescribed by the Constitution for the grant of a case stated reference. First, that the proposed question does not attain the substantiality threshold required under the 1999 Constitution (as amended) nor does it identify any substantial issue of law. Second, the proposed question has not arisen in the course of the proceedings. Third, it does not identify for interpretation, any specific provisions or jurisdictional subject of this Court in the Constitution. Fourth, the proposed question is merely hypothetical. Fatally, that the proposed question, if successful, will impose on the Court of Appeal the obligation of making findings of facts on a case not before it. To the claimant, the contradictory feature of a Court that allegedly lacks jurisdiction in the first instance, granting an application for reference, further amplifies the improper nature of the application. That case law is clear that where there is a challenge to a court’s jurisdiction, that challenge must be determined by that Court and not by stating a case to the Court of Appeal. That the application for case stated is, therefore, deficient both in merit and in competence. Like the defendants, the claimant proceeded to make her submissions under sub-heads. I shall retain the said sub-heads in making out the submissions of the claimant. Issues for Determination The claimant framed the following issues for the determination of the Court – 1. Considering the totality of the defendants’ application, have the defendants met the conditions for the reference of any question by this Court to the Court of Appeal? 2. Does the National Industrial Court, whose jurisdiction is being challenged, have the jurisdiction to make a case stated reference or to go ahead and determine its jurisdiction? 3. Based on the circumstances of this case, can this Court stay its proceedings? ARGUMENT Issue one: Considering the totality of the defendants’ application, have the defendants met the conditions for the reference of any question by this Court to the Court of Appeal? The National Industrial Court has authority to Consider the Merits of the Application for case Stated Reference To the claimant, it must be mentioned that this Court has the competence and discretion to consider the propriety of an application for case stated. That the Court making the reference must decide the substantiality of the question, referring to African Newspapers of Nigeria Ltd v. The Federal Republic of Nigeria [1985] 2 NWLR (Pt. 6) 137. In Labour Party v. Independent National Electoral Commission [2009] 6 NWLR 315, Ogbuagwu, JSC held that – Thus, it is the court making the reference that must decide on the substantiality of the question and not the Court of Appeal or the Supreme Court. Standard of Review To the claimant, the 1999 Constitution (as amended) prescribes the conditions for a case stated to the Court of Appeal in section 295(2). That in a long line of authorities, the standard of review applicable to ascertain the propriety or competence of a case stated has been formulated. To ground a reference properly known to law, the Supreme Court in Abubakar v. A-G., Federation [2007] 6 NWLR (Pt. 1031) 626 at 644 held that the following conditions must co-exist – 1. The question to be referred must be as to the interpretation or application of the provisions of the Constitution. Indeed, this is the fundamental basis upon which such a reference must be predicated. 2. That question must be seen to arise in the proceedings relating to that issue before the court making the reference. 3. Of course, the matter for reference must involve a substantial question of law, while the court making that reference must have decided the substantiality of the question which is the subject-matter of the reference. 4. There must not be, by any stretch of imagination, any pronouncement by the court making the reference to a higher court on the law relating to the question so referred. Also referred to the Court were Gamioba v. Esezi II [1961] 2 SCNLR 237; Olawoyin v. Commissioner of Police (No.2) [1961] 2 SNCLR 278; Bamaiyi v. AG Federation [2001] 12 NWLR (Pt. 727) 468; and Obi v. INEC [2007] 11 NWLR (Pt. 1046) 436 at 488. The claimant continued that a court must satisfy itself as to the co-existence of the conditions above before it accedes to a request for reference. Thus, parties’ joint consent to a reference does not divest the Court of the responsibility to ensure that the constitutional conditions exist. This was the decision of the Federal Supreme Court of Nigeria in Gamioba v. Esezi II [1961] ANLR 608, where it was said that it does not relieve the Court of its duty to decide whether the question genuinely arises in the proceedings and involves a substantial question of law; and whether its determination is necessary to the determination of the proceedings. According to the Court at page 612 – We consider, however, that the error in the present case goes beyond making of a wrong order, and that even the reference of the question set out in the counsel’s application would have been premature. The requirement that the High Court shall refer a question to this court if any party to the proceedings so request only comes into force only where the question genuinely arises in the course of the proceedings in the High Court, and where the High Court is of the opinion that the questions involve a substantial question of law. Reference should not be made lightly, and no application for a consent order can relieve the High Court of deciding these matters itself (the underlining is the claimant’s). The Proposed Question does not Attain the Substantiality Threshold as there is no Doubt as to the Literal Meaning of the Heads of jurisdiction which the National Industrial Court is entitled to Resolve As a primary condition for stating a case to a higher court, there must be a substantial question of law before the court entertaining the suit. The term 'substantial question of law' has been defined in the context of a case stated reference. In Bamaiyi v. AG Federation [2001] 12 NWLR (Pt. 727) 468 at the Supreme Court stated as follows: A useful guide in determining whether an issue of law is substantial is provided in a number of Indian decisions dealing with a similar phrase in the Indian Constitution. There it has been held that in order to be substantial, the issue must be such that there may be some doubt or difference of opinion as to what the law is. Where no such doubt exists, or the law is well established by a final Court of Appeal, or by all over whelming consensus of judicial decisions the mere application of it to a particular set of facts does not constitute a substantial question of law, however important the issue may be for the decision of the particular case, per Karibi-Whyte, JSC (the underlining is the claimant’s). The claimant continued that there is no doubt as to the literal interpretation of the exclusive jurisdiction of the National Industrial Court in respect of all employment matters without distinction. That this Court has decided this point repeatedly. In Andrew Monye v. Ecobank Nigeria Plc unreported Suit No. NIC/EN/06/2009 this Court held that the it has jurisdiction over matters dealing with termination of employment in the following words – This Court has held in a plethora of cases that issues of termination of employment are matters relating to labour or at least incidental to labour as provided in section 7(1)(a) of the National Industrial Court Act 2006, as the jurisdiction of this Court is subject based. This same position was restated in Lasisi Gbadegesin v. Wema Bank unreported Suit No. NIC/57/2008. That this Court has made definite pronouncements on its exclusive jurisdiction in all employment related matters. Thus the way to address this point is by appellate review and not by reference. That for the avoidance of doubt, it has been held by the Supreme Court in Abubakar v. AGF that there must not be any – pronouncement by the court making the reference to a higher court on the law relating to the question so referred. Here, that there have been repeated pronouncements on the purport of the jurisdiction of this Court extending to all employment issues. According to the Supreme Court in Bamaiyi v. AG Federation [2001] 12 NWLR (Pt. 727) 468, “the purpose is to solve a difficult, constitutional interpretation impeding the continuation of the proceedings before the trial court”. This Court has no such problem with the interpretation of its jurisdiction. As such the proposed reference is invalid. The Issue of Jurisdiction is Hypothetical and has not arisen in the Course of this Proceedings To the claimant, the defendants have failed to identify the specific provisions of the Constitution that require interpretation. That there is a vague reference to section 254C(1) of the 1999 Constitution (as amended). This vague allusion, without more, does not avail the defendants. This is because there are approximately 22 different heads of jurisdiction provided under section 254C(l)(a) – (m) of the 1999 Constitution (as amended). The proposed reference has not identified any specific head of jurisdiction that requires interpretation. To underscore the futility and impropriety of the defendants’ proposed reference, that the claimant’s complaint confers this Court with jurisdiction in at least three material ways under section 254C(1) of the 1999 Constitution (as amended), namely – 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 matters incidental thereto or connected therewith; 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, employer’s association or any other matter which the Court has jurisdiction to hear and determine; f) relating to any unfair labour practice or international best practices in labour, employment and industrial relations matter; h) relating to, connected with or pertaining to the application or interpretation of international labour standards; k) relating to, or connected with disputes arising from payment or non-payment 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. To the claimant, it is not clear that the proposed reference addresses with specificity any of the identified heads above that confer jurisdiction on the National Industrial Court. The above provisions are clear and the construction permits of no doubt. The historicity of the jurisdiction of the National Industrial Court under the Trade Disputes Act has no legal relevance in the context of the alteration of the Constitution. That this is an employment related dispute that asserts that the claimant was unfairly summarily dismissed without fair hearing as required by Chapter IV of the Constitution of the Federal Republic of Nigeria and under the defendants’ Code of Business Conduct which specifies standards of an international nature (the emphasis is the claimant’s). As such, the claimant claims the payment of unpaid employment related benefits and entitlements. The construction of the identified heads of jurisdiction and their application to this case is manifestly clear and without doubt. The claimant continued that a vital requirement for the success of an application for stating a case, which the defendants have woefully failed to show, is that the substantial question of law to be referred to the Court of Appeal arose in the course of the proceedings. This requirement, as earlier stated, is essential for the success of any application for reference of question to the Court of Appeal, and must co-exist with the other requirements before the application can be granted. According to the Supreme Court in Bamaiyi v. AG Federation [2001] 12 NWLR (Pt. 727) 468 at 496, per Karibi-Whyte JSC – An important element is that the question must arise in the proceedings before the court...It is an essential condition for the exercise of the power in the constitutional provision that the question must genuinely arise in the course of the proceedings. For the question to arise genuinely, it must be one which must necessarily be decided in the course of the matter and not a matter which may prove unnecessary to be decided (underlining is the claimant’s). The claimant went on that the question to be referred must not be wide and general and hypothetical, but one that arises from the case that the parties have brought before the court. In Commissioner of Police v. Obasi & ors [1976] All NLR 1, the following question was referred to the Supreme Court – Whether on the correct interpretation of section 18 of the Magistrate Court Law Cap. 82 Laws of Eastern Nigeria as amended by section 6 of Edict No. 23 1971 the ouster of jurisdiction of the magistrate as therein provided also contemplates ouster of the criminal jurisdiction of the magistrate to hear and determine criminal cases – a) Where the value of the subject matter of the charge exceeds the limit of the civil jurisdiction of the Magistrate. b) Where with respect to the subject matter of the charge, title to land or interest therein is involved. That the Supreme Court held as follows – We may make some observation on the propriety of the questions in the case stated submitted for our opinion. Question No. 1 refers to the criminal jurisdiction of the Magistrate in criminal cases generally. The question which arises on the facts of the case stated, however, is a question concerning jurisdiction of the magistrate to try the charge under section 451 of the Criminal Code when the value of the subject matter of the charge was N800 and the issue as to title to land was raised by the defence. In our view the only question which may be referred and answered under section 39 of the said High Court Law is a question which arises in the case. We consider Question No. 1 as a general and hypothetical question which does not arise from the case. We would accordingly refrain from answering it. In this case, the claimant argued, the defendants are seeking to determine the hypothetical question of the jurisdiction of this Court in relation to general private contractual employment or industrial relations. To underscore the hypothetical nature of the question, it may be asked: what is the relationship of the generic question asked and how has it arisen in the context of the proceedings? Besides the factual denial in their affidavit in support, the defendants have not filed a statement of defence. Can the proposed reference answer a hypothetical factual question as to whether the 1s1 and 2nd defendants are involved in industrial relations? Or answer a question as to whether trafficking is an industrial relations issue or trade dispute within the so-called “historical jurisdiction” of the Court? That the jurisdiction of the National Industrial Court is wide and any reference widely couched as to contemplate the various scenarios under which the Court’s jurisdiction can be invoked is not one that qualifies under the procedure specified in section 295(2) of the 1999 Constitution (as amended). To the claimant, simply put, this question has not arisen in the course of proceedings. That in Abubakar v. A¬.G., Federation [2007] 6 NWLR (Pt. l031) 626, Aderemi, JSC at 645 said – I have gone through the records forwarded to this court; there were no proceedings before the court below upon which any question purportedly forwarded to this court can be predicated. That being so, I do not hesitate in saying that no reference known to law, has been made to this court and we cannot assume jurisdiction on this matter as it stands. The Court of Appeal Cannot Make any Factual Finding as Contemplated by the Defendants The claimant continued that the factual claims and denials alluded by the defendants in the affidavit in support is another basis to refuse this application. Essentially, that the defendants will (if the reference succeeds) be requesting the Court of Appeal to make factual findings. This is another basis to justify a refusal of a reference as decided in Abubakar v. AG Federation, where Chukwuma-Eneh, JSC said – The instant matter has not however complied with the conditions precedent for a proper referral of the matter to the court. If I may highlight one or two of the flaws evident in this regard. In this matter, the plaintiff has commenced the action by an originating summons with an affidavit in support and two further affidavits. There are filed a counter-affidavit and a counter-claim by the 1st defendant; the 2nd defendant as well as the 3rd and 5th defendants jointly and the 6th defendant have equally filed their respective counter-affidavits. In the light of these scenarios the facts of this matter have been put in serious issue. Thus making findings of fact a sine qua non for a proper reference to this court to be meaningful. There is no such findings of fact so that there is no way forward in dealing with the matter even if the court had wished to proceed with the matter. This is even more so as the court cannot assume original jurisdiction of the lower court in this matter and so cannot make any findings of fact in the matter. In sum, that this application does not qualify under section 295(2) of the Constitution (as amended). The claimant then urged the Court to dismiss the application for the deficiencies identified above. Issue two: Does the National Industrial Court, whose jurisdiction is being challenged, have .the jurisdiction to make a case stated reference or to go ahead and determine its jurisdiction? To the claimant, jurisdiction is the basis upon which any court can take any step in proceedings. The importance of jurisdiction cannot be over stated. According to the Supreme Court in D.E.N.R Transport Ltd v. Transport International Bank Ltd [2008] 18 NWLR (Pt. 1119) 388 at 427 – Jurisdiction, it is said, is very fundamental and it is the centre pin of the entire litigation. It is the foundation upon which every litigation hinges upon. This is why every court in Nigeria is vested with some specific statutory jurisdiction. That the importance of jurisdiction makes it imperative that it must be resolved by that Court before it can be seised with jurisdiction in respect of any aspect of the proceedings including making a case stated reference. In Ogunmokun v. Milad, Osun State [1999] 3 NWLR (Pt. 594) 261 at 282 D – E, it was held that – ...once the jurisdiction of a competent court of record is challenged it must be resolved first before taking any other step. It is also trite law that in resolving the issue of challenge to its jurisdiction it must assume jurisdiction first to consider whether it has or lacked (sic) jurisdiction.... Accordingly, that it has been held by the Court of Appeal and affirmed by the Supreme Court that it is an exercise in futility to consider a case stated reference without resolving the issue of jurisdiction. In Obi v. INEC [2007] 11 NWLR (Pt. 1046) 436 it was held categorically that – Whenever issue of jurisdiction is raised, it is not for the court to wash off its hand. When raised, it is for the court to determine whether it has one imbued in it (underlining is the claimant’s). The claimant continued that for the purpose of guidance, the Supreme Court in Olawoyin & ors v. C.O.P [1961] NSCC 261 at 263 has held in relation to needless references by lower courts, that – Judges of the High Court are expected to observe and apply the provisions of the Constitution where their application has been raised in a matter, and, indeed, it is their duty to do so. They would be failing in their duty if they refrained from doing so, and referred every such case to the Federal Supreme Court. Case Stated Reference is not a Cognizable Procedure for Challenging the Jurisdiction of a Court To the claimant, in Attorney General of Delta State v. Asin [2010] 16 NWLR (Pt. 1219) 347, a jurisdictional question of locus standi was referred to a higher court. The Court held at page 360 D – E, per Augie, JCA as follows – In this case, the lower court should have heard the application challenging its jurisdiction on the grounds of locus standi first, and it could also have heard both applications and delivered a ruling that would have resolved all the issues being canvassed by the parties. But to take its hands off and decide to refer questions to this court without even hearing the applications before it is totally out of it. Obviously, it failed to appreciate the import of a reference, which is that the question must be on a substantial question of law (underlining is the claimant’s). Continuing, the Court held per Omoleye, JCA at pages 362 – 363 G – A as follows – …where there is a challenge to the jurisdiction of a court, that court must first determine whether it has jurisdiction before it can proceed to do anything or make any pronouncement in the matter placed before it for adjudication. In the instant matter, the lower High Court has the legally bounding duty to first and foremost determine whether it has or lacks jurisdiction to entertain the originating summons of the respondents. This is the first and proper step for it to take as posed in the appellants’ application. It is after resolving this poser and if it finds that the respondents have locus standi that it will be clothed with power to determine the issue of reference. At this stage, there is no proceeding to refer to this court for interpretation. That this was also the decision in Otumba Justus Olugbenga Daniel & anor v. Senator Ibikunle Amosun & ors [2009] LPELR-CA/I/EPT/FHC/CS/84/08, where the Court of Appeal held that – The lower court was under the obligation to take a definite stand on the issue of jurisdiction which was timeously raised in the objection, rather than wash its hands off a definite stand and pushing it to this court to determine in the form of reference. Again in Obi v. INEC (supra), the Court held – In the absence of the lower court seised of the subject matter on account of jurisdiction, it does not also have the power of reference under the said section for of any proceedings on that subject matter. In other words, the operation of the said section pre-supposes that the court must be seized of the matter and therefore has jurisdiction. Therefore, according to the claimant, the issue of the Court’s jurisdiction cannot be resolved by a case stated reference. The claimant then invited the Court to dismiss the application on the basis that it is not a competent or cognizable method to determine the jurisdiction of the Court. Issue three: Based on the circumstances of this case, can this Court stay its proceedings? To the claimant, this Court cannot exercise any discretion to order a stay of proceedings. Essentially, as this Court cannot competently make a case stated reference when its jurisdiction is being challenged, it can also not stay its proceedings. That the request for stay of proceedings becomes a moot point. To highlight the incongruent nature of suspending the proceedings of a lower court when a reference has been made, the Court of Appeal held in Abba & ors v. INEC & anor [2010] LPELR/EP-CA/E/297M/2010 that – It follows logically that when an appeal has not been entered and there is merely a reference to the Court of Appeal by means of case stated the Court of Appeal does not have the control, the dominion or the jurisdiction to be seised of the whole of proceedings as between the parties thereto. Put in another way, the jurisdiction of the Court of Appeal under the provision of section 295(2) of the 1999 Constitution on any question as to the interpretation or application of the Constitution is limited to the court giving a decision upon the question and the court below shall thereby be enjoined to dispose of the res in accordance with the decision of the Court of Appeal, per Owoade, JCA (pp. 76 – 77 F – C. Conclusion The claimant concluded her submissions with the following points – a) The National Industrial Court has authority to consider the merits of the application for case stated. b) The proposed question does not attain the substantiality threshold as there is no doubt as to the literal meaning of the heads of jurisdiction which the National Industrial Court is entitled to resolve. c) The issue of jurisdiction is hypothetical and has not arisen in the course of the proceedings. d) The Court of Appeal cannot make any factual finding as contemplated by the defendants. e) Case stated reference is not a cognisable procedure for challenging the jurisdiction of a Court. f) As this Court cannot competently make a case stated reference when its jurisdiction is being challenged, it can also not stay its proceedings. The request for stay of proceedings becomes a moot point. On the whole, the claimant invited the Court to dismiss the application for case stated on the ground that it lacks merit and competence. The defendants filed a written address dated 26th April 2012 but filed on 2nd May 2012 in opposition to the claimant’s notice of preliminary objection. To the defendants, the claimant formulated three issues for the determination of the Court, namely – 1. Considering the totality of the defendants’ application, have the defendants met the conditions for the reference of any question by this Court to the Court of Appeal? 2. Does the National Industrial Court, whose jurisdiction is being challenged, have the jurisdiction to make a case stated reference or to go ahead and determine its jurisdiction? 3. Based on the circumstances of this case, can this Court stay its proceedings? In response, the defendants formulated the following issues as being germane to the full and final determination of the application for case stated and within which they also addressed the claimant’s issues – a) Whether the claimant’s preliminary objection dated 20th April 2012 is incompetent. b) Whether having regard to the provision of section 295(2) of the 1999 Constitution (as amended) the defendants have satisfied the requirements to state a case for the decision of the Court of Appeal? ARGUMENTS Whether the Claimant's Preliminary Objection dated 20th April 2012 is incompetent. To the defendants, the law is commonplace that a party cannot file a preliminary objection to another preliminary objection/motion on notice, which has already been filed before the Court. This is because the proper step for a party who has any objection to a preliminary objection or motion on notice is to file a counter¬-affidavit and written address, referring to the case of Manson & Ors v. Halliburton Energy Services Nigeria Ltd [2007] 2 NWLR (Pt. 1018) 211 at 227 – ¬228 H – C where the Court of Appeal held as follows – Failure not to comply is of no effect: what learned counsel for the 1st Respondent should have done in opposition to the applicant’s Notice of Preliminary Objection is by filing of Counter Affidavit. But certainly not Notice of Preliminary Objection to prior notice of preliminary objection. In law practice, there is nothing called answer to answer or question-to-question. Based on the wrong approach of the 1st Respondent, their wrong Notice of Preliminary Objection is dismissed for being an abuse of court process in the four grounds of objection (underlining is the defendants’). The defendants then submitted that the claimant’s preliminary objection is an incompetent process, which is unknown to law given the fact that the claimant filed a “question to the defendants’ question” instead of filing a counter-affidavit and/or written address in opposition to the defendants’ motion on notice. The defendants submitted further that all the arguments, which the claimant canvassed in her written address in support of her preliminary objection, could have simply been properly filed as a written address in response to the defendants’ motion on notice. Thus, to the defendants, the preliminary objection, which the claimant has filed, is incompetent and clearly unknown to law, urging the Court to dismiss it. The Court was referred to Mobil Prod. (Nig.) Unlimited v. Monokpo [2003] 18 NWLR (Pt. 852) 346 at 433D where Tobi, JSC held as follows – A court process which is filed but not known to law, in my humble view, is null and void ab initio. I can still move further. If the court process results in a judgment, ruling or order the judgment, ruling or order is also null and void ab initio. The defendants went on to submit that this Court cannot grant the prayer, which the claimant is seeking in its preliminary objection because to do so will amount to shutting out the defendants from arguing their motion for case stated. The Court has a duty to hear all applications, which are presented before it and the failure of the Court to refuse to hear an application will amount to an abdication of duty by the Court. That the claimant’s intention is to lure this Court into exactly that error. In Ovunmo & anor v. Woko & 2 ors [2011] 6 – 7 SC (Pt. 1) 1 at 20 – 21 paras 35 – 5 Chukwuma-Eneh, JSC held as follows – I therefore, stand on the above premises to restate the principle that it is a court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of the Appellants’ to fair hearing. In the light of the foregoing, the defendants urged the Court to hold that the claimant’s preliminary objection is incompetent and unknown to law since the proper court process which the claimant ought to have filed is a counter-affidavit and/or written address in response to the defendants’ motion on notice. However, that without prejudice to the defendants’ submissions that the claimant’s notice of preliminary objection is unknown to law and as such incompetent, the defendants have made appropriate responses to the questions framed in the said incompetent preliminary objection for the ostensible purpose that the merits of the defendants’ application for stating a case can be dealt with by this Court. Whether having regard to the provision of section 295(2) of the 1999 Constitution (as amended) the defendants have satisfied the requirements to state a case for the decision of the Court of Appeal. To the defendants, the condition precedents for stating a case to a higher court are contained in. section 295(2) of the 1999 Constitution (as amended). That the position of the Constitution as stated therein has also been adopted and interpreted by the Supreme Court in a long line of cases, citing Bamaiyi v. Attornev General of the Federation [2001] 12 NWLR (Pt. 727) 468 at 495 F – H and Rossek & 2 ors v. African Continental Bank Ltd & 2 ors [1993] 8 NWLR (Pt. 312) 382 at 451 E – G. Thus, that before a reference can be validly made to the Court of Appeal, the following factors must be present – 1. The question to be referred must arise from the interpretation of the Constitution of the Federal Republic of Nigeria. 2. The question to be referred must arise from the proceedings of the lower court. 3. The question to be referred must involve a substantial question of law. The defendants then submitted that they have satisfied these three conditions mentioned above because upon a perusal of the question formulated it is clear that the question has arisen in the course of the proceedings before this Court in Suit No. NIC/LA/40/2012 and it is also manifestly clear that it involves the interpretation of section 254C(1) of the 1999 Constitution, as amended. That the learned counsel to the claimant in paragraphs 8 – 11 of his written address also concedes that the condition precedents for a case stated are as we have stated above. That the learned counsel to claimant, however, made an erroneous deduction in paragraphs 12 – 15 of his written address when he argued that the proposed question to be stated does not involve a substantial question of law because the National Industrial Court has decided in several cases such as Andrew Monye v. Ecobank Nigeria Plc unreported Suit No. NIC/EN/06/2009 and Lasisi Gbadegesin v. Wema Bank unreported Suit No. NIC/57/2008 that it has jurisdiction in respect of all employment matters without distinction. The defendants continued that the deductions and argument made by the counsel to the claimant in paragraphs 12 – 15 of his written address is not the correct position of the law. That the correct position of the law is that the mere fact that the court which is being asked to make a reference has decided/made a pronouncement on the issue which it is being asked to refer to the Court of Appeal in the past is not enough ground not to refer a case to the Court of Appeal. Thus, the mere fact that the NIC has decided that it has jurisdiction over all forms of employment in Andrew Monye v. Ecobank (supra) and Lasisi Gbadegesin v. Wema Bank (supra) is not enough ground for the NIC to refuse to state the case which the defendants have formulated to the Court of Appeal, referring to the case of Rossek v. A.C.B Ltd [1993] 8 NWLR (Pt. 312) 382 where the Supreme Court held that the mere fact that a division of the Court of Appeal has decided an issue of law does not mean that the Court of Appeal cannot state a case to the Supreme Court on that same issue. Ogundare, JSC at page 454 D – E held as follows – It follows therefore that if the court below had refused a reference to this court of any question as to the interpretation or application of the Constitution which question involved a substantial point of law (e.g. section 258(4) for the reason that it (the court below) had pronounced on the question in another matter between different parties (e.g. Alhaji Abudu Gaffari v. Ajayi Johnson & anor) [1986] 5 NWLR (Pt. 39) 66, I would have unhesitatingly held that it acted wrongly. Also, that in African Newspapers of Nigeria Ltd & 2 ors v. Federal Republic of Nigeria [1985] 2 NWLR (Pt. 6) 137 at 152 E – G, Aniagolu, JSC held as follows – The Court of Appeal (with the greatest respect to the distinguished panel of Judges who made the ruling) was in error when it held that because it had once before expressed its legal opinion on the interpretation of section 7 aforementioned, it was following the opinion of the Supreme Court in ADESANYA (supra) in refusing a reference of the question of law involved, in this matter, to the Supreme Court. ADESANYA (supra) was clearly misinterpreted and misapplied by the Court of Appeal. The fact that the Court of Appeal had ruled in EZE’s case (supra) that the Federal High Court had jurisdiction to hear and determine that case (that is EZE’s case), could not constrict the Court in referring, under section 259(3) of the 1979 Constitution, the substantial question of law involved in the present case – an entirely different case – to the Supreme Court for determination. Based on the above authorities, the defendants submitted that the fact that this Court has decided the issue of the extent of its jurisdiction in the cases of Andrew Monve v. Ecobank (supra) and Lasisi Gbadegesin v. Wema Bank (supra) will not constrict this Court from referring the substantial issue of law which the defendants herein have formulated to the Court of Appeal. The defendants then urged the Court to discountenance the arguments of the claimant in paragraphs 12 – 15 of her written address. Whether the Question raised by the Defendants is a Substantial Question of Law. Here the defendants submitted that the question, which was formulated by the defendants for the opinion of the Court of Appeal, is a substantial question of law given the fact that it is one of fundamental public importance and the Supreme Court has not determined it, referring to the case of Dasuki v. Muazu [2002] 16 NWLR (Pt. 793) 319 at 338 B – C, where Musdapher, JCA (as he then was) held as follows – The Supreme Court in its earlier decisions refrained from giving an exhaustive meaning of what is substantial question of law. But it is safe and necessary to say that where a question which arises in a High Court is one of general public importance or interest and it directly and substantially affect the right of the parties and that it is still an open question in that it has not been pronounced upon in a binding decision of the Supreme Court, and either that it is not free from difficulty or there is a difference of opinion or confusion as to what the law is, then it is a substantial question of law. The defendants then invited the Court to hold that the question they formulated to be stated for the determination of the Court of Appeal is substantial. The Court was then referred to the case of Abacha v. Federal Republic of Nigeria [2006] 4 NWLR (Pt. 970) 239 where the Court of Appeal granted an application for case stated on the ground that the issue was one of general public importance or interest and that it had not been pronounced upon in a binding decision by the Supreme Court. Whether the Issue of Jurisdiction is Hypothetical and has not arisen in the course of this proceedings. The defendants’ argument here is that the learned counsel to the claimant submitted in paragraphs 16 – 22 of his written address that the fact that the defendants only made a reference to section 254C(1) of the 1999 Constitution, as amended, without identifying which of the subsections of section 254C(1) it wants the Court of Appeal to interpret simply means that the defendants’ question was not capable of being stated to the Court of Appeal. That the learned counsel to the claimant went further to argue that the question which the defendants want the NIC to refer to the Court of Appeal was a hypothetical question and that it did not arise in the course of proceedings. The defendants then submitted that this argument is clearly misconceived. This is because whether or not the defendants mention a particular sub-section is irrelevant. That the only important factor with regard to the section, which a party wants the Court to refer to the Court of Appeal, is that the section must be contained in the constitution. Once the section is stated in the Constitution, it involves a substantial question of law and it arises from the proceedings at the lower court then the lower court has a duty to refer the case to the Court of Appeal, referring to the case of Ibori v. Ogboru [2004] 15 NWLR (Pt. 895) 154 where the Court of Appeal refused to state a case to the Supreme Court on the ground that one of the sections which the applicant sought to be referred to the Supreme Court was a section of the Electoral Act 2002 and not a section of the Constitution of the Federal Republic of Nigeria. Thus, to the defendants, the fact that the defendants stated only section 254C(1) of the 1999 Constitution, as amended, for interpretation by the Court of Appeal will not negatively affect their chances to state a case to the Court of Appeal. This is all the more so given the fact that whatever interpretation which the Court of Appeal gives to the words “employment” and “labour” would generally affect the meaning to be derived from the whole subsections of section 254C(1). The defendants further submitted that the question, which the defendants want the Court of Appeal to interpret, is not a hypothetical one because the question will help to determine whether or not the NIC has the jurisdiction to entertain the claimant’s case. Thus, the question cannot be said to be a hypothetical one because it deals with the live issue of the claimant’s case and it arose in the course of the proceedings at the NIC, referring the Court to paragraphs 2 – 6 of the affidavit in support of the defendants’ motion on notice for case stated. The court was referred to the case of Ezerebo v. Ehindero [2009] 10 NWLR (Pt. 1148) 166 at 176 – 177 G – A where the Court of Appeal defined a hypothetical case as follows – A suit is hypothetical if it is imaginary and not based on real facts. It looks like a ‘mirage’ to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought. Thus, that the fact that the question, which the defendants want the Court of Appeal to interpret, relates to the facts surrounding the claimant’s case goes to confirm that the question is not a hypothetical one and that it arose from the course of proceedings. That the defendants had already been served with the claimant’s statement of facts and it was whilst the counsel to the defendants was reviewing the statement of facts in order to prepare its statement of defence that it discovered that if the question as to the true meaning of section 254C(1) of the 1999 Constitution is not answered by the Court of Appeal, the NIC would not be able to properly determine the issues in dispute between the parties. Clearly, that it is the law that a reference for constitutional interpretation of the higher court must not have arisen from the questions for determination in the substantive suit but from something external to the main questions which resolutions the claimant seeks. That the defendants’ right to a reference for interpretation of the National Industrial Court’s jurisdiction is not taken away merely because the question which the defendants have formulated for the opinion of the Court of Appeal would not resolve the determination of the rightness or wrongness of the claimant’s dismissal, neither does it derogate from the fact that it is an issue which arises from the proceedings of this Court seeing that the claimant’s entitlement to reliefs sought cannot be decided without resolving the issue which the defendants have formulated for the opinion of the Court of Appeal, referring the Court to the case of Abubakar v. A.G. Federation [2007] 6 NWLR (Pt. 1031) 626 at 638 D – E, where Kutigi, Acting CJN (as he then was) in explaining when a question for reference can be said to have arisen in the course of a proceeding at the lower Court held as follows – For a constitutional question to arise in the course of proceedings, it must not have formed part of the question for determination in the original suit as in this case. It must have arisen “ex tempore” or “ex imporviso”. The Court of Appeal cannot make any Factual finding as Contemplated by the Defendants. To the defendants, the learned counsel to the claimant argued in paragraphs 23 and 24 of his written address that this Court should refuse the defendants’ application for case stated simply because the defendants alluded to factual claims and denials in their affidavit in support of their application for case stated and by so doing, the defendants were requesting the Court of Appeal to make factual findings. That the learned counsel cited the case of Abubakar v. A.G. Federation (supra) in support of its contention. The defendants, however, submitted that this argument is spurious and frivolous. This is because unlike in Abubakar v. AG Federation (supra) where the parties filed more than 5 counter-affidavits and further affidavits, the defendants in the instant case only filed one affidavit. More so, the defendants have not called on the Court of Appeal to make any finding of fact. The defendants have only requested that a case be stated for the opinion of the Court of Appeal as regards the interpretation of section 254C(1) as it affects the jurisdiction of the NIC to entertain cases related to private individual contractual employments. The defendants then urged the Court to discountenance the arguments of the claimant in paragraphs 23 and 24 of her written address. Furthermore, the fact that the question which the defendants want the Court of Appeal to interpret, does not form part of the main question for determination which the claimant wants the NIC to decide in this suit buttresses the point that no factual questions for determination have been raised for the opinion of the Court of Appeal. That the defendants simply seek the determination of the Court of Appeal on the legal question whether the National Industrial Court has jurisdiction to entertain the claimant’s case and do not seek from the Court of Appeal the determination of the validity or otherwise of any of the factual issues raised by the claimant. Does the National Industrial Court, whose Jurisdiction is being Challenged, have the Jurisdiction to make a Case Stated Reference or to go ahead and Determine its Jurisdiction? To the defendants, the learned counsel to the claimant argued in paragraphs 25 – 28 of its written address that the NIC does not have the jurisdiction to make a case stated reference to the Court of Appeal because its jurisdiction is being challenged and that whenever the jurisdiction of a court is being challenged the court has a duty to resolve the issue of the challenge to its jurisdiction first before taking any other step in the proceeding. The learned counsel cited the case of Obi v. INEC [2007] (Pt.1046) 436 in support of this position. The defendants then submitted that the case of Obi v. INEC, which the learned counsel to the claimant relied on in paragraph 27 of its written address, has been upturned by the Supreme Court in the case of Obi v. INEC [2007] (Pt.1046) 560, urging the Court to place reliance on the Supreme Court’s decision. The defendants submitted further that contrary to the strenuous argument of the learned counsel to the claimant in paragraphs 25 – 28 of his written address, what the Supreme Court decided in Obi v. INEC [2007] (Pt. 1046) 560 at 629 D – E was that a Court who lacks jurisdiction to entertain a matter couldn’t make a reference to a higher court. Thus, that the NIC has the power to make the reference in the instant case given the fact that the NIC has not held that it lacks the jurisdiction to entertain the claimant’s suit. More importantly, that it must be emphasized that unlike Obi v. INEC, where the constitutional interpretation sought in that case was not on jurisdiction of the court, the court could clearly separate the issue whether it had jurisdiction over the substantive case from the constitutional question framed on interpretation of the governor’s tenure. In this case, however, the very question, which the defendants want the NIC to refer to the Court of Appeal whilst arising from the interpretation of the Constitution, also touches on the jurisdiction of the Court. The only matter before the Court at this stage is not whether it has jurisdiction or not but whether it has the inherent powers to refer the defendants questions to the Court of Appeal seeing that the question arises for interpretation of the Constitution and also touches on the jurisdiction of the Court. Now, that it is settled law that a court has an inherent power to determine whether it has jurisdiction to determine a case or not, referring to Barclays Bank v. CBN [1976] NSCC 291. To the defendants, the reason that a court must be able to determine whether it has jurisdiction notwithstanding the likelihood of its lack of jurisdiction is so that the matter may progress one way or the other lest every defendant files a jurisdictional objection with no court to decide same. Drawing from this settled jurisprudence, it must in the same light be taken that a court has an inherent power and duty to refer a case to a higher court once the condition precedents have been satisfied notwithstanding that such constitutional question for reference touches on the jurisdiction of that court. That the only factors, which the NIC has to consider in deciding whether or not to make the reference, are the factors stated in section 295(2) of the 1999 Constitution, as amended. Hence the paramount question or consideration in this circumstance should be whether it is a question, which arises from the interpretation of the Constitution, its dual character of also being a jurisdictional issue notwithstanding. Furthermore, that the case of Attorney General of Delta State v. Asin [2010] 16 NWLR (Pt. 1219) 347, which the learned counsel to the claimant cited at paragraph 29 of his written address is not on all fours with the instant case and it is, therefore, not relevant to the determination of this application. This is because in that case the ground upon which the jurisdiction of the High Court was challenged was different from the question, which the applicant sought to refer to the Court of Appeal. At the High Court, whilst there was a pending preliminary objection challenging the locus standi of one of the parties to the case, the High Court went ahead to refer a question on whether the Delta State House of Assembly had the power to enact a law changing the Headquarters of a Local Government without determining the application challenging the locus standi of one of the parties to the case. The Court of Appeal, therefore, held that the High Court ought to have determined the application challenging locus standi before making the reference to the Court of Appeal. The defendants then urged the Court not to place reliance on the cases of Obi v. INEC [2007] (Pt. 1046) 436 and Attornev General of Delta State v. Asin [2010] 16 NWLR (Pt. 1219) 347 which the learned counsel to the claimant cited at paragraphs 27 and 29 of his written address because the facts of those cases are clearly different and distinguishable from the facts of the instant case. The defendants further referred the Court to the case of Green v. Green [1987] 3 NWLR (Pt. 61) 480 at 501 C – D, where Oputa, JSC, held as follows – The fact is that no one case is exactly like another and argumentum a simili valet in lege (Co. Lutt 191) – it is when the cases are alike that the argument has a legal force. The defendants submitted finally that the NIC will be bound to make a reference to the Court of Appeal if it finds that the defendants have been able to fulfill all the condition precedents for a constitutional reference as stated in section 295(2) of the 1999 Constitution. This is because the provision of 1999 Constitution is supreme and its provisions have a binding force on all persons and authorities throughout the country, referring to Adediran v. Interland Transport Ltd [1991] 9 NWLR (Pt. 214) 155 at 179 G – H. Conclusion The defendants concluded by urging the Court to dismiss the claimant’s preliminary objection for being incompetent and to hear arguments on the defendants’ application for case stated based on the following – 1. The defendants have been able to satisfy all the condition precedents prescribed by the 1999 Constitution before a case can be stated for the opinion of the Court of Appeal. 2. This Court has a duty to hear all applications pending before it. The claimant reaction on points of law is dated and filed on 22nd May 2012. To the claimant, the defendants raised no valid issues of law in response to the claimant’s preliminary objection. That they, instead of responding to the issues presented for determination, created a strange proposition that is neither the subject of inquiry in the case nor an accepted principle of law under any circumstances. The law, according to the claimant, is settled that where there is a strange or an incompetent application before a court, a party is at liberty to challenge it by means of an objection. The prerogative of a party to object to an incompetent process or action extends to the challenge of a court’s jurisdiction. That jurisdiction is primary, and it is settled that where a court’s jurisdiction is challenged, it has the power to consider same and decide whether or not it has jurisdiction. This is so because any action or steps taken by a court without jurisdiction, including reference of a question of law, is void and of no effect whatsoever. Furthermore, that where there is an application for reference to a higher court, all the conditions precedent for reference, including the presence of jurisdiction, must be met before any question can be referred. The claimant continued that the defendants, in a hopeless attempt to distract this Court from the real issues, misrepresent, misquote and totally misapply the position of the law. The defendants erroneously posit that a preliminary objection cannot be filed in opposition to a motion on notice, tagging it “a question to the Defendants’ question”. That, with respect, is not the position of the law. The defendants also make a futile attempt to assert that hearing of the claimant’s preliminary objection will impede their right to fair hearing. Curiously, however, the same defendants have challenged the Court’s jurisdiction in another application, blowing hot and cold. Issues for Determination The claimant framed two issues as identifiable from the reply written address of the defendants. They are – 1. Whether it is legally permissible for the claimant to file an objection to the defendants’ motion for case stated. 2. Having regard to the position of statutory and case law authority, including the provision of section 295(2) of the 1999 Constitution (as amended), have the defendants satisfied the requirements to state as case for the decision of the Court of Appeal? ARGUMENT Issue 1: Whether it is legally permissible for the claimant to file an objection to the defendants’ motion for case stated. An Objection can be raised in Challenge of Incompetent process To the claimant, the law permits a party to raise an objection where he believes an application or process is lacking in merit or is incompetent. Preliminary objections have, therefore, received ample judicial recognition and definition. In Sani v. Okene Local Government Traditional Council (2008) 12 NWLR (Pt. 1102) 691 at 699 the Supreme Court stated, per Tobi JSC – Preliminary Objection as the expression connotes, is an objection which is initiated or commenced at the earliest possible opportunity. A preliminary objection should be taken first in time because it could be liable to time in our adjectival law. Perhaps, apart from preliminary objection as to jurisdiction, most others are liable to time and could be subject to waiver. Going further, the Court noted that – Preliminary objection is raised where a party fails to comply with the enabling law or the rules of court. See Mohmmned v. Olawunmi [1993] 4 NWLR (Pt. 288) 384; Oloriede v. Oyebi [1984] 1 SCNLR 390. The proper stage at which a defendant should raise a preliminary objection to a plaintiff’s suit should be either at the inception or early stage of the proceedings. See Carlen v. University of Jos [1994] 1 NWLR (Pt. 323) 631. In fact, that in a long line of judicial authorities, our courts have placed great importance on Preliminary objections, emphasizing its purpose in the expeditious resolution of matters. In Eresia-Eke v. Orikoha [2010] 8 NWLR 421 at 438 the Court stated – I will consider the preliminary objection first before going into the merit of the appeal, if need be. The purpose of preliminary objection is to terminate, stop or end the proceedings or some aspect of the proceedings in an action or appeal, if it succeeds. That is why it is always expedient to hear and determine the objection first. See U.B.N Plc v. Sogunro [2006] 16 NWLR (Pt. 1006) 504 at pages 522 – 522; Okoli v. Ibiang [2002] 10 NWLR (Pt. 776) at 468. Also, that in Amgbare v. Sylva [2007] 18 (Pt. 1065) l at 28 E – G, the Court brought to fore the purpose of preliminary objection in the adjudicatory process where it stated as follows – The primary purpose of any preliminary objection is to determine the proceedings in limine. In the instant case, the success of the respondent’s preliminary objections automatically terminated the appeal because the effect was that there was no valid appeal before the Court of Appeal. So, there was nothing more to consider in it. See Okoi v. Ibiang [2002] 10 NWLR (Pt. 776) 455; ANPP v. R.O.A.S.S.D. [2005] 6 NWLR (Pt. 920) 140; Adelekan v. Ecu¬Line NV [2006] 12 NWLR (Pt. 993) 33; Obi v. Owolabi [1990] 5 NWLR (Pt. 153) 702, per Garba, JCA. The claimant continued that the defendants in their response to the preliminary objection of the claimant challenging their application for a case stated reference of a question of the National Industrial Court’s jurisdiction to the Court of Appeal erroneously assert that a preliminary objection cannot be filed against a preliminary objection. The defendants cited the case of Manson v. Halliburton Energy Services Nigeria Ltd [2007] 2 NWLR (Pt. 1018) 211 in support of their assertion that a preliminary objection cannot be used in challenge of a motion on notice even where it is patently incompetent. This authority does not in the least support the case of the defendants despite their futile attempts to prove that it does. The facts of the case are simple. The respondents filed three notices of appeal as well as four motions at the Court of Appeal. One record of appeal was filed in respect of the three notices of appeal. All three notices of appeal and four motions were served on the applicant who filed a preliminary objection seeking that they be struck out, among other reliefs. The respondents filed a preliminary objection opposing the applicants’ preliminary objection. The Court held that – What learned counsel should have done in opposition to the applicant’s notice of preliminary objection is by filing a counter-affidavit. But certainly not a notice of preliminary objection to prior notice of preliminary objection. In law there is nothing called an answer to answer or a question to a question. Based on their wrong approach, their preliminary objection is dismissed for being an abuse of court’s process in the four grounds of the objection (underlining is the claimant’s). That the defendants, in a desperate attempt to persuade this Court, misinterpret the above quotation. The defendants in paragraph 3.1.1 of their address in opposition to the claimant’s notice of preliminary object make a blanket assertion that a preliminary objection cannot be used in opposition of a motion, even trying to use the term interchangeably with a preliminary objection. To the claimant, it is instructive to observe that on 30th March 2012, the defendants filed two motions, viz – (i) Motion on notice seeking reference of a question to the Court of Appeal under section 295 of the 1999 Constitution (as amended). (ii) Motion on notice seeking an order striking out the claimant’s suit for lack of jurisdiction. That there is no question that of the two motions, it is the motion for striking out of the suit that can be described as a preliminary objection and not the case stated motion. That being the case, there is clearly no merit in the defendants’ argument that the claimant’s preliminary objection was filed in response to their preliminary objection. The defendants have cited no clear authority proscribing the step taken by the claimant in opposing their application. The claimant continued that there is nothing wrong with raising a preliminary objection against any irregular step taken in a proceeding, including a motion on notice which is unfounded in law. In fact, that in State v. Onagoruwa [1992] 2 NWLR (Pt. 221) 33, the Supreme Court upheld as valid a preliminary objection which challenged a motion for stay of proceedings and the validity of an appeal. In that case, the respondent, who entered a no case submission to a charge of stealing at the Lagos State High Court, challenged on appeal the decision of the trial court in which it held that he had a case to answer. The respondent filed a motion for stay at the trial court and later at the Court of Appeal and the appellant challenged both applications with a preliminary objection. The respondent at the Court of Appeal contended that the objection was premature and ought to be incorporated in the brief. The appellant appealed to the Supreme Court and his appeal was allowed. At both the Court of Appeal and the Supreme Court, it was not in doubt that both the application for stay (a motion on notice) and the appeal could be challenged by the appellant. The only contention was that it was premature, a contention which the Supreme Court rejected in its entirety since it challenged the court’s power to grant the stay or hear the appeal. In the light of the above, the claimant urged the Court to discountenance the defendants’ argument in this regard. Hearing of Claimant’s Preliminary Objection does not Impede the Defendants’ Right to Fair Hearing To the claimant, the defendants in their response to the preliminary objection filed by the claimant asserted that by hearing the objection of the claimant to their motion for case stated, the Court will shut the defendants out from arguing their application for case stated. The defendants asserted that the Court has a duty to hear all the applications before it and any failure to do that will amount to an abdication of its duty. They cited the case of Ovunmo v. Woko [2011] 6 – 7 SC (Pt. 1) 1 at 20 – 21 in support of their position. That while the general assertion may have some merit, it is also not in doubt that judicial decisions are only authorities for what they decide. That the law, however, is that where any preliminary objection is raised, the Court must consider and decide it first before going on with the matter. This is an elementary principle of law as it has been restated in a long line of judicial authorities. In Kokoorin v. Patigi Local Government [2009] 15 NWLR (Pt. 1164) 205 at 214, the Court stated – It is trite to state that a court in which preliminary objection is raised is duty bound to state in writing whether it agrees with the preliminary objection or not. It is a cardinal principle of the administration of justice that to let a party know the fate of his or her application whether properly or improperly brought before the court. It will amount to an unfair hearing to ignore an objection raised by a party or his counsel against any step to the proceedings. See Nwanwata v. Esumie [1998] 8 NWLR (Pt. 563) 650 at 666; Tambco Leather Works Ltd v. Abbey [1998] 12 NWLR (Pt. 579) 548 at 554; Onyekwuluje v. Animashaun [1996] 3 NWLR (Pt. 439) 637 at 644; Onyekwulunne v. Ndulue [1997] 7 NWLR (Pt. 512) 250 at 279. The claimant continued that from the above, it follows, therefore, that whenever a preliminary objection is raised the Court will do well not to ignore it, and taking the objection will not amount to a negation of the other party’s right to fair hearing provided he is given notice of the objection as well as an opportunity to respond to it. In fact, that our courts have recognized the importance of notice to adverse party in raising objections. In Agbaka v. Amadi [1998] 11 NWLR (Pt. 572) 1 at 11, per Ogwuegbu, JSC the Court highlighted this as follows – The purpose of giving notice of preliminary objection is to give the adversary an opportunity of reacting to the objection and to avoid any surprise. The notice of preliminary objection prepares the adverse party for the challenge which the objection will pose to his case; it does not deprive him of his right to fair hearing, it only summons him to proffer a response to a query raised by an adverse party. Accordingly, that the Supreme Court has in a long line of authorities restated the position that a preliminary objection must, where timeously raised, be taken first since it is subject to time limitation. According to the Supreme Court in Sani v. Okene Local Government Traditional Council (supra) – A preliminary objection should be taken first in time because it could be liable to time in our adjectival law. Perhaps, apart from preliminary objection as to the jurisdiction of the court, most others are liable to time and could be subject of waiver. Therefore, that in the light of the above, this Court will be right in deciding the claimant’s objection to the defendants’ application for a case stated reference as the objection challenges the power or jurisdiction of the Court to refer the question. In State v. Onagoruwa (supra) the Supreme Court held per Nnaemeka-Agu, JSC at 57 – Jurisdiction is the determinant of the vires of a court to come into a matter before it. Conversely, where a court has no jurisdiction over a matter, it cannot validly exercise any judicial power thereon. For this reason, once an issue of jurisdiction is raised at any stage in the proceedings in any matter, it ought to be gone into first as failure to do so may mean that all the exercise of adjudication may be a useless waste of time (underlining is the claimant’s). Issue 2: Having regard to the position of statutory and case law authority, including the provision of section 295(2) of the 1999 Constitution (as amended), have the defendants satisfied the requirements to state as case for the decision of the Court of Appeal? The Issue of a Court’s Jurisdiction must be Decided by that Court To the claimant, a court’s jurisdiction is the most important factor in its competence to take any step in a matter, and this makes it imperative that it must be resolved by that Court before it can be seised with jurisdiction in respect of any aspect of the proceedings including making a case stated reference. The invaluable importance of a court’s jurisdiction was highlighted by the Supreme Court in State v. Onagoruwa (supra) where the Court held, per Uwais, JSC (as he then was) that – It has been said time without number that the issue of jurisdiction of a court is fundamental. Its been raised in the course of proceedings can neither be too earlier or premature nor be too late. For if there is a want of jurisdiction, the proceeding of the court will be affected by a fundamental vice and will be a nullity no matter how well conducted the proceedings might otherwise be – see Oredoyin v. Arowolo [1989] 4 NWLR (Pt. 114) 172 at 187 and Onyema v. Oputa [1987] 3 NWLR (Pt. 60) 259. Furthermore, the jurisdiction of a court to determine an issue as to whether it has jurisdiction is not a procedural matter but substantive since any court without jurisdiction is incompetent to determine a matter and if it does exercise the jurisdiction which it does not possess it is a nullity – Ojokolobo v. Alamu [1987] 3 NWLR (Pt. 61) 377 at 391. The claimant continued that the defendants contended in paragraph 3.15 of their response to the claimant’s preliminary objection that the Supreme Court upturned the decision of the Court of Appeal in Obi v. INEC. That they inadvertently support the claimant’s case by asserting that “what the Supreme Court decided in Obi v. INEC [2007] 11 NWLR (Pt. 1046) 565 was that a court who (sic) lacks jurisdiction to entertain a matter couldn’t make a reference”. That is the correct position of the law on the matter. Continuing, the claimant asserted that the defendants further asserted that the NIC has the power to make the reference in the instant case given the fact that the NIC has not held that it lacks jurisdiction to entertain the claimant’s suit. The defendants referred the Court to page 629. Interestingly, that the defendants conspicuously omitted to quote that portion of the report which it claims support from. To the claimant, the Supreme Court did not in any part of its decision disagree with the Court of Appeal on the point that a court must possess jurisdiction to hear a matter before it can make a case stated reference to a higher court. In fact, that according to the apex court at page 629 paras. C – D of the report, per Aderemi JSC – I pause here to state that before a proper reference known to and sanctioned by the law could be made, the court making it should have made some findings upon the facts placed before it and in so doing the trial court must be convinced it had jurisdiction to hear the matter (underlining is the claimant’s). That the above quotation of the Supreme Court is no different from the decision of the Court of Appeal on the point. Both Courts have thus decided that a Court cannot make a case stated reference until it has resolved any issue regarding its jurisdiction. The claimant, therefore, urged this Court to settle first the question of its jurisdiction rather than refer it to the Court of Appeal. Conclusion In conclusion, the claimant asserted that she has sufficiently demonstrated that – 1. A preliminary objection can be filed in challenge of any irregular step taken in an action, including an application for case stated reference. 2. Hearing the claimant’s preliminary objection does not amount to a deprivation of the defendants’ right to fair hearing. 3. A court’s jurisdiction is vital to any step it takes in an action, including reference of a constitutional question to a higher court and accordingly, where a court’s jurisdiction is in doubt, it cannot refer any question. 4. The defendants’ application for a case stated is incompetent and without a legal basis. The claimant then urged the Court to strike out the application of the defendants praying this Court to refer a question of its jurisdiction to the Court of Appeal. COURT’S DECISION I have carefully considered the processes and submissions of the parties. Before addressing the merit of the application for case stated, by way of a preliminary comment, I must point out that there is no section “254C(F)(11)(c)” either of the 1999 Constitution or of the Third Alteration Act No. 3 to the 1999 Constitution as the defendants made out in the title of their motion on notice for case stated. What we have is simply section 295 of the 1999 Constitution as altered by section 11(a), (b) and (c) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which for purposes of reference ought simply to read ‘section 295 of the 1999 Constitution, as amended or altered’. Secondly, the defendants referred to ‘section 20(1) of the Trade Disputes Act Cap T8 LFN 2004’ and then went on to state that ‘section 21 of the Trade Disputes Act Cap T8 LFN 2004 is an identical provision’. Not only is this not correct, but both sections have been repealed by section 53 and 54 of the NIC Act 2006. Thirdly, the defendants’ argument at page 6 of its written address that “fresh controversy over the Court’s jurisdiction arose from the addition in section 7(i)(1) of the general words “labour” and “employment”, to comprise the un-contentious “trade unions and industrial relations” is not clear. The reference to section7(i)(1) is silent as to the law it relates to. If it is the NIC Act 2006, then that subsection does not exist; and in any event, the word ‘employment’ does not feature in that section. If the reference is to the Third Alteration to the 1999 Constitution, that subsection too does not exist. This point made, the next issue relates to the propriety or otherwise of the claimant having to file a preliminary objection against the defendants’ motion for case stated. The defendants made an issue of this. I earlier in this ruling pointed out that the issues/points raised by the claimant in her preliminary objection are such that they also answer the application for case stated; and so it did not really matter if they were couched as matters of objection. But this aside, I must state that what the claimant objected to is the defendants’ motion for case stated, not the motion for preliminary objection, which the defendants withdrew themselves as I indicated earlier. If the defendants had not filed two motions, one for case stated and the other as a preliminary objection to jurisdiction, this confusion of thought on the part of the defendants may not have arisen. I agree with the claimant that on the authorities, a party can raise an objection to a motion on notice if it is one of a preliminary objection itself. I pointed out earlier that the written address the defendants submitted for the cases stated was the same with that that they submitted for their own preliminary objection. So throughout the argument of the defendants, although the arguments were meant to substantiate the application for case stated, there were several instances, as may be noticed in the earlier narration of the submissions of the defendants, where the arguments dovetailed into arguments against the jurisdiction of this Court to hear and determine the claimant’s case. Despite withdrawing their preliminary objection, the defendants argued the application for case stated as if it were an argument against the jurisdiction of this Court to determine the case of the claimant. This must explain why the defendants saw the claimant’s preliminary objection as if it were a preliminary objection to a preliminary objection. But like I pointed out, I am not making an issue of it since either way arguments in that regard have little bearing on the merit of the application at hand, which is what really a specialized Court of this sort should be concerned with. Sections 36(1)(g) and 37(3) of the Trade Disputes Act LFN 2004 and section 12(2) of the NIC Act 2006 enjoin this Court can be less formal if the interest of justice will be served. I then turn to merit of the matter at hand which is the application for case stated. The applicable law is section 295(2) of the 1999 Constitution, as amended. The said subsection which has been reproduced earlier in this ruling contains the requirements that must be met before a case stated application can be successful. There is no question between the parties as to scope of these requirements. What is in doubt is whether the question posed by the defendants for the case stated meets the substantiality requirement of section 295(2) of the 1999 Constitution, as amended. While the defendants argue that the requirement has been met, the claimant thinks otherwise; and it is in arguing this point that a good deal of the submissions of the defendants dovetailed into a discourse of the jurisdiction of this Court. Central to the submissions of the defendants is the use of the term ‘employment’ in section 254C(1) of the 1999 Constitution, as amended. In, therefore, seeking to define the term ‘employment’, the defendants defined the term ‘work’ and then simply concluded that the term ‘work’ is synonymous with that of ‘employment’. Little attempt was actually made to define ‘employment’ to see if it encompasses both private employment contracts as well as public employment. However, in the definition of the term ‘work’ by the defendants, they acknowledged that it normally refers to work for wages as opposed to work for profits; and the question that arises here is whether a distinction is made between private employment contracts and public employment i.e. even as regards the definition of ‘work’. Having to go to section 91 of the Labour Act to define ‘worker’, as the defendants did, loses sight of the context in which that term is used in the Labour Act. The Labour Act in the first place is not an all-purpose legislation. It was not meant to cover all workers, only those who are deemed to be most desirous of the protection of the law. The category of workers that was excluded were deemed sufficiently strong enough to hold their ground and cater for their rights and hence protection. In any event, having to adopt section 91 of the Labour Act as the framework within which the jurisdiction of the NICN is to be constructed and yet also argue that to construe ‘employment’ in section 254C(1) of the 1999 Constitution, as amended, in its literal meaning which in the words of the defendants, “it is a huge subject matter, which goes so low as to domestic contracts in every village in Nigeria”, is like approbating and reprobating. This is because the definition of a worker under section 91 of the Labour Act certainly brings within its purview ‘Domestic contracts in every village in Nigeria’. So in what sense are the defendants arguing that the use of the word ‘employment’ in section 245C(1) of the 1999 Constitution, as amended, must be understood only within the context of the definition of the word ‘worker’ in section 91 of the Labour Act, and yet are also arguing that if the word ‘employment’ is given its true meaning, it will represent a huge subject matter which can go so low as domestic contracts in every Nigerian village? Are the defendants not trying to approbate and reprobate? In arguing that an absurdity is inherent in a literal interpretation, which would then mean that “in any workplace or related matter arising from a dispute between a domestic staff and his employer, or a multinational company and its employee or a government office and its officer, no other court would have the jurisdiction to determine the matter except the NIC”, the defendants forget that they have unwittingly introduced some sort of elitist tendencies regarding the application of the law. That is, in respect of one subject matter, ‘employment’, we are to have one court system for the lower rung of workers and another court system for the upper echelon. If there is an absurdity that would arise, it is that regarding this submission of the defendants which has the tendency of introducing a dual labour jurisprudence in our court system. The Oxford Advanced Learner’s Dictionary: International Student’s Edition, 7th Edition, defines ‘employment’ as “1 work, especially when it is done to earn money…2 the situation in which people have to work”. The Chambers Dictionary defines it to mean “the act of employing; something which engages or occupies; occupation”. The same dictionary first defines ‘employ’ to mean “to occupy the time or attention of; to use as a means or agent; to give work to”. The Black’s Law Dictionary, Deluxe 9th Edition, on its part, defines ‘employment’ in these words – 1. The relationship between master and servant. 2. The act of employing. 3. The state of being employed. 4. Work for which one has been hired and is being paid by an employer. The Black’s Law Dictionary then defines an ‘employment contract’ as “a contract between an employer and employee in which the terms and conditions of employment are stated”. The learned author, EM Rao, in the book, Industrial Jurisprudence: A Critical Commentary (LexisNexis Butterworths: New Delhi, India), 2008 in Chapter 2 deals extensively with employment relationship. Addressing the issue of the concept of employment at pp. 89 – 101, the learned author asserted that absent employment relationship, labour legislation and industrial jurisprudence have no place. In other words, the existence of employer-employee relationship is the sole foundation on which the labour law rests. The learned author then went on to state that at the macro level, employment can be broadly classified into public and private employment, with the latter covering essentially employment in private business, trade and industry. He continued that the concept of employment involves three ingredients: employer (the person who engages the services of others), employee (the person who works for another for hire) and the contract of employment (the contract of service between the employer and employee under which the employee agrees to serve the employer subject to his control and supervision). It is in this regard that the Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors [2008] 4 – 5 SC (Pt. II) 117, for instance, held a contract for the supply of security guards by the appellant to the 1st respondent in consideration of a monthly payment of an agreed amount per security guard to be a contract of service/employment. The Supreme Court at pages 128 – 130 then laid down the following factors to guide courts in determining which kind of contract the parties entered into – 1. If payments are made by way of “wages” or “salaries” this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of “fees”. In like manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service. 2. Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress, that indicates that it is a contract for service. 3. In a contract of service/employment, it is inconsistent for an employer to delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties there under, it becomes a contract for services. 4. Where the hours of work are not fixed it is not a contract of employment/of service. See Milway (Southern) Ltd v. Willshire [1978] 1 RLR 322. 5. It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises. However, a contract which allows the work to be carried on outside the employer’s premises is more likely to be a contract for service. 6. Where an office accommodation and a secretary are provided by the employer, it is a contract of service/of employment. Now, Exhibit FA1 attached to the affidavit in support of the motion for case stated is the letter of appointment of the claimant dated October 21, 2001 wherein she was offered “employment in the position of Human Resources Manager on Job Grade 12 reporting to the General Manager”, upon the terms and conditions that were spelt out listed therein, including the “Annual Basic Salary [of N1,800,000] payable in monthly instalment in arrears, on or before the last day of each calendar month, twelve times per annum and other entitlements”. The details of other entitlements are: Housing Allowance (N1,260,000 or 70% of Annual Basic Salary); Leave/Passage Allowance (N550,000 – 2 Business Class tickets plus $1k); Bonus Allowance (N360,000 – 20% of Annual basic Salary); 13th Month (N15,000 – 1 Monthly Basic Salary); and Driver’s Allowance (N600,000). The total was put at N4,720,000 with a further clause indicating that “other entitlements and benefits would be in accordance with policy”. The question that arises, therefore, is: if the letter of appointment of the claimant indicates that it offered her ‘employment’ without the distinction of saying that it is offering her a “private individual contractual employment”, and this Court under section 254C(1) of the 1999 Constitution, as amended, has jurisdiction over ‘employment’, what is controversial about this as to generate the ‘substantial’ question of law requiring a case stated in the manner argued by the defendants? Regarding the construction of statutes, in Robert Wigram Crawford v. Richard Spooner (1846) 6 Moore PC 1, the Privy Council held that – We cannot aid the legislature’s defective phrasing of an Act; we cannot add or mend and, by construction, make deficiencies which are left there. And in Queen v. Judge of City London Court [1892] 1 QB 273 at 290, Lord Esher MR observed as follows – If words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity…. The question is: what is the absurdity in the use of the word ‘employment’ in section 254C(1) of the 1999 Constitution, as amended? The issue raised by the defendants, which appeals more to feeling, exercises a kind of hydraulic pressure which makes what was previously clear seem doubtful and before which even well settled principles of law bend or are distorted (EM Rao – Industrial Jurisprudence: A Critical Commentary (LexisNexis Butterworths: New Delhi, India), 2008 at p. 881). In contending that the legislature did not intend by the Third Amendment Act to extend the subject matter jurisdiction of the NIC and that the legislature did not in fact do so, the defendants’ application for case stated assumes that there was an error on the part of the National Assembly in conferring the current jurisdiction. In other words, the term ‘employment’, in section 245C(1) of the 1999 Constitution, as amended, was accidental and without consideration to its true meaning. The defendants’ application for case stated assumes, therefore, that the legislators at Federal and State levels who passed the Third Alteration to the 1999 Constitution did not know that the word, ‘employment’, encompasses all forms of employment without distinction. It is based on this distinction that the defendants framed their issue which they labeled substantial and want this Court to grant the application for case stated. It cannot, however, be a substantial question of law simply because the applicant thinks it to be so. What we have, therefore, as an application for case stated is the applicants generating a controversy themselves; and then branding that controversy a substantial issue with a prayer to this Court to refer the controversy to the Court of Appeal. Now, diverse literatures on labour or employment law have all these years defined employment to encompass both public and private employments. What this portends is that there has been no controversy over the ambit of the term, ‘employment’. So when the defendants presently argue that it is not clear if the current jurisdiction of this Court under section 254C(1) of the 1999 Constitution, as amended, raises a substantial question of law regarding the scope of the jurisdiction of this Court it must be because the defendants do not know the scope of labour or employment law itself. Any labour lawyer knows that the term, ‘employment’, refers to public and private employment and that there is no controversy over the term at all. The fact that the defendants do not know this does not in any way make that a substantial question of law. The ignorance of an issue cannot elevate that issue to the position of substantiality. In arguing their case, the defendants relied on the Supreme Court decisions in Nigerian Union of Electricity Employees v. Bureau of Public Enterprise and Oloruntoba-Olu v. Dopamu. But I must state that these decisions were all cited out of context. The truth is that these cases were all qualified and made subject to statutory or constitutional amendment. In Oloruntoba-Oju v. Dopamu [2008] 7 NWLR (Pt. 1085) 1 at page 30, for instance, Oguntade, JSC (who delivered the lead judgment), while considering section 47 of the Trade Disputes Act Cap. 432 LFN 1990, presently section 48 of the TDA 2004, had this to say – It seems to me too to construe the interpretation clause in section 47 of Cap, 432, Laws of Federation as conferring on the National Industrial Court the jurisdiction to adjudicate on all manner of disputes concerning employment matters could do a great violence to the provisions of section 251(1)(q), (r) and (s) of the 1999 Constitution. It would in my view take a more specific provision of Cap. 432 and not just an interpretation clause to have such a far reaching effect which overrides the clear provisions of section 251(1)(q), (r) and (s) of the Constitution. I dare ask: is section 254C(1) of the 1999 Constitution, as amended, not such “a more specific provision”? Even when Oguntade, JSC reasoned that it will overburden the NIC, designed to be a special purpose court, if the court is given jurisdiction in all matters relating to disputes in employment matters, this fear was made in the context of Decree 47 of 1992 and then, of course, His Lordship did recognize the fact that such a result will be legal and valid if “a more specific provision” were to provide so. And in Nigerian Union of Electricity Employees v. Bureau of Public Enterprise [2010] 1 NACLR 91 at 125, the Supreme Court per Chukwuma-Eneh, JSC had this to say – Again, it is trite law that the jurisdiction of the State High Court as conferred by the Constitution can only be curtailed or abridged or even eroded by the Constitution itself and not by an Act or law respectively of the National Assembly or State House of Assembly, meaning that where there is conflict in that regard between the provisions of the Constitution and the provisions of any other Act or law of the National Assembly or House of Assembly respectively the Constitution shall prevail if I may emphasize excepting as I have observed above by direct and clear provision in the Constitution itself to that effect (the emphasis is the Supreme Court’s). Once again I dare to ask whether section 245C(1) of the 1999 Constitution as inserted by the Third Alteration to the 1999 Constitution is not such a “direct and clear provision in the Constitution itself”. I think it is; and I do hold so. The defendants, of course, did not draw the attention of the Court to these two ratios regarding the cases of Oloruntoba-Olu v. Dopamu and Nigerian Union of Electricity Employees v. Bureau of Public Enterprise, may be because they do not support their stance. I consequently and hereby hold that section 254C(1) of the 1999 Constitution, as amended, conforms with the ratios enunciated by Oguntade, JSC and Chukwuma-Eneh, JSC respectively in these two Supreme Court cases. Taking account of historical antecedents of especially the Federal High Court when it was the Federal Revenue Court, and given the ratio in the Supreme Court cases of Jamal Steel Structures Ltd v. African Continental Bank (supra) and Bronik Motors Ltd v. Wema Bank Ltd (supra), the defendants argued that if the word “employment” were interpreted using the ejusdem generis rule, the result would be that the NIC does not have jurisdiction over matters relating to private contractual employment. I must state here that there is a good deal of misconception of the historical antecedents put forward by the defendants in terms of their argument. There is no doubt that the Federal High Court started off as the Federal Revenue Court with jurisdiction generally restricted to matters of revenue of the Government of the Federation and the other matters enumerated earlier on in this ruling. Over time, the Court changed from Federal Revenue Court to Federal High Court with enhanced jurisdiction which culminated in section 251 of the 1999 Constitution. A critical question arises here. Since section 251 of the 1999 Constitution came into being, has any of the provisions granting jurisdiction to the Federal High Court been interpreted in the restrictive sense that Jamal Steel Structures Ltd v. African Continental Bank (supra) and Bronik Motors Ltd v. Wema Bank Ltd (supra) did? Has the current jurisdiction of the Federal High Court under section 251 of the 1999 Constitution been ever restricted to the ‘historical antecedents’ that gave rise to the establishment of the Court? If the argument of the defendants is to stand its head, then it must be that all of the items of jurisdiction granted the Federal High Court must be restrictively construed within the context of the historical antecedents that gave birth to the Court in the first place. Not only would this be most absurd, it would clearly mean that there is no place any longer for Courts to give literal interpretation to statutes. In Queen v. Judge of City London Court [1892] 1 QB 273 at 290, Lord Esher MR observed as follows – If words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity…If the words of an Act admit of two interpretations, then they are not clear, and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did not intend to lead an absurdity, and will adopt the other interpretation. If the historical antecedents of the Federal High Court are of any meaning, it is that section 251 of the 1999 Constitution came about because of the desire of the Legislature to give to only a Federal Court jurisdiction over items over which only the National Assembly has legislative powers over. A look at the Exclusive Legislative List will reveal that all but item 34 are matters covered in section 251 of the 1999 Constitution. Item 34 on its part contains matters that are now covered by section 254C(1) of the 1999 Constitution, as amended. So, if by the historical fact that all the items listed in the Exclusive Legislative List (save item 34) are within the jurisdictional scope of a Federal Court, the Federal High Court, what then is wrong or the ‘controversy’ (to use the word of the defendants) in the matters covered in item 34 (namely, ‘labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour’) given to the NICN to adjudicate on? Accepted, that the word ‘employment’ does not feature as such in item 34. I had asked the learned SAN, counsel to the defendants, in open Court, whether there is any law relating to ‘employment’ that has been enacted by a State legislative House. I got no answer. I also asked the learned SAN to the defendants whether in drafting section 254C(1) of the 1999 Constitution, as amended, what alternative word the National Assembly ought to have used to indicate that the word ‘employment’ used in that section did not encompass ‘private individual contractual employment’. Once again, I got no answer. It must be appreciated (once again taking an excursion into historical antecedents) that under section 7 (the jurisdiction section) of the NIC Act 2006, the word ‘employment’ was not used. The NIC Act 2006 is a creation of the current civilian and constitutional dispensation. However, under section 254C(1) of the 1999 Constitution, the word ‘employment’ is brought in. Does this not show a deliberateness on the part of the National Assembly (of the same civilian and constitutional dispensation as that that enacted the NIC Act 2006) to grant jurisdiction on the NICN in respect of all employment cases? The argument regarding historical antecedents on the part of the defendants loses sight of two vital historical facts, the first of which if taken account of and applied as the defendants have so far urged this Court to do may lead this Court to even conclude that the application for case stated itself is incompetent. Prior to the Third alteration to the 1999 Constitution, section 295 of the 1999 Constitution did not list ‘National Industrial Court’ therein. This led this Court to hold in Association of Senior Civil Servants of Nigeria (ASCSN) v. Government of Yobe State & ors (consolidated suits) unreported Suit No. NIC/5/2000 delivered on June 29, 2007 that this Court was not contemplated for purposes of applications for case stated under section 295 of the 1999 Constitution. Now, the point is, if I am to agree with the defendants’ argument regarding the weight of historical antecedents in determining the jurisdiction of this Court, of necessity, that argument must also go to the power whether or not to grant the prayer for case stated. For what all this would imply is that since section 295 of the 1999 Constitution did not contemplate this Court, the inclusion of the Court vide the Third Alteration to the 1999 Constitution should not change anything in that historical regard, and for which the defendants should not even have the right to apply for case stated in the first place. The defendants would agree with me that this conclusion would be certainly absurd, the kind of absurdity that the conclusion that the law makers did not mean to include ‘private individual contractual employment’ when they used the word ‘employment’ in section 254C(1) of the 1999 Constitution, as amended, must necessarily be too. The second historical fact that the defendants lost sight of relates to the argument of the defendants that the term ‘employment’ used in section 254C(1) of the 1999 Constitution, as amended, must be understood within the context of ‘trade disputes’, the traditional head of jurisdiction of the NIC. Accepted, the term ‘trade disputes’ has been the traditional head of jurisdiction of the NIC. But in 2006, when the NIC Act of that year was passed into law, section 7 which stipulates the jurisdiction of the Court deliberately did not use the phrase, ‘trade disputes’, throughout that section. The phrase used is ‘labour dispute’; and this was to avoid the confusion of thought which generally pervaded the term, ‘trade disputes’. Even when section 54(1) of the NIC Act 2006 defined the term ‘trade disputes’, this was because the Trade Disputes Act LFN 2004, as amended, retained its character as an existing law and was valid for especially the purposes of the dispute resolution processes of Part I of the Trade Disputes Act. The same is true of the term, ‘inter and intra-union disputes’ used in the Trade Disputes Act but changed to organizational disputes in section 7 of the NIC Act. In all of these cases, and to be able to accommodate existing laws, the terms, ‘trade disputes’ and ‘inter and intra-union disputes’ were given enlarged definitions in section 54 of the NIC Act 2006. The law makers were, however, strongly mindful in section 53(2) and (3), and section 54(4) of the NIC Act 2006 to provide (given the use of the phrase ‘for the avoidance of doubt…in subsection (4) of section 54 of the NIC Act 2006) that the Trade Disputes Act was to be interpreted and applied with such modification as to bring it into conformity with the NIC Act. I have taken the trouble to bring this out and explain so as to show that since the coming into being of the current democratic dispensation on May 29, 1999, the National Assembly has pursued a deliberate policy of strengthening the NIC, a fact which culminated in the third Alteration to the 1999 Constitution. For the defendants to, therefore, argue that the National and State Assemblies acted in error or ignorantly in providing for section 254C(1) of the 1999 Constitution, as amended, in its present form, is to argue from a position of ignorance of the real historical facts that called for and shaped section 254C(1) as it currently is. The defendants complained of the ‘legal and logistical absurdity of taking over the jurisdiction of the High Courts in all master and servant matters’ and had a lengthy submission under that head. Indeed, this appeared to be the crux of the defendants’ grouse with the Third Alteration to the 1999 Constitution. In the first place in Queen v. Judge of City London Court [1892] 1 QB 273 at 290, Lord Esher MR cautioned that “if words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity”. Is it, therefore, the business of this Court to worry about whether section 254C(1) of the 1999 Constitution, as amended, is absurd in using the word ‘employment’ without specifically excluding ‘private individual contractual employment’ and when the literal meaning of the word itself is never in doubt? In any event, even as the defendants urged the Court to refer this case to the Court of Appeal so that the upper Court can rectify the absurdity of having to overburden this Court in all employment cases (the ‘floodgate of litigation’ argument), is the effect of a statute an item for consideration when a statute is being construed? In other words, where a word used in a statute, such as ‘employment’ in this case, is clear and unambiguous as to its meaning, simply because the effect of the word may create difficulty in implementation (not difficulty in construing the word), is that an issue to be taken into account when interpreting the said word? If the National Assembly, in its wisdom and in line with the constitutional framework of federal causes and matters being heard by Federal Courts, legislates that exclusive jurisdiction is vested on the NIC on all employment and labour matters as it did, can the toga of absurdity be branded on that legislative discretion? In any event, when has the ‘floodgate of litigation’ fear influenced legislation? The defendants complained of taking master-servant cases away from the State High Courts. The defendants had actually argued that – The jurisdiction over employment matters outside trade disputes, labour or collective bargaining issues has always belonged to the High Courts. The general words employed in the relevant section do not on their face indicate any intention to [do] away [with] the jurisdiction of the other High Courts. The Constitution Amendment Act made no express mention of the withdrawal of this subject matter from under the jurisdiction of the High Courts and so has not complied with the requirement that a court’s jurisdiction may only be ousted or limited or transferred by clear and unequivocal words. The argument of the defendants here, to the effect that section 254C(1) of the 1999 Constitution, as amended, should have specifically indicated the intention to do away with the jurisdiction of the High Courts, seems to be misplaced. This is because the defendants argue as if section 272 of the 1999 Constitution specifically used the words ‘master-servant’ matters or ‘employment matters outside trade disputes’. It must be emphasized that, and for which the defendants need to take special note of, nowhere in sections 251, 257 and 272 of the 1999 Constitution is master-servant specifically used or master-servant matters specifically given to the High Courts to adjudicate upon. By the argument of the defendants here, the defendants assume some kind of infallibility/wide jurisdictional scope of the High Courts to be the norm. The opening words of section 254C(1) of the 1999 Constitution, as amended, are, “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 upon it by an Act of the National Assembly…”. Do these words suggest that the National Assembly did not know or appreciate the import of what they were legislating on? I do not think so. The defendants failed to understand that unlike under the 1979 Constitution where the jurisdiction of the State High Courts in respect of civil causes and matters was ‘unlimited’, this is not the case under the 1999 Constitution even before it was altered by three Alteration Acts. The jurisdiction of the State High Courts today is no longer unlimited. It may be general (or may even be the widest in comparison to other Courts, going by the pronouncement of Chukwuma-Eneh, JSC in Nigerian Union of Electricity Employees v. Bureau of Public Enterprise [2010] 1 NACLR 91 at 126) but certainly not unlimited. It was initially limited by section 251; and now it is additionally limited by section 254C of the 1999 Constitution, as amended, (if the statement of Chukwuma-Eneh, JSC in Nigerian Union of Electricity Employees v. Bureau of Public Enterprise at 125 that “it is trite law that the jurisdiction of the State High Court as conferred by the Constitution can only be curtailed or abridged or even eroded by the Constitution itself” is anything to go by). The defendants referred to the statement of Nnamani, JSC in Bronik Motors v. Wema Bank [1983] 14 NSCC 227 where in looking into whether or not, and relative to the Federal High Court, the unlimited jurisdiction of the State High Courts under the 1979 Constitution was actually the intendment of the law makers, His Lordship stated – To advert to the case in hand, the argument in support of such extensive jurisdiction for the Federal High Court must be set against the fact that the establishment of that Court was a decision of the Constituent Assembly. The Constitution Drafting Committee did not recommend it in its draft rather it recommended State High Courts as the only High Courts in the Federation. In its Report (Reports of the Constitution Drafting Committee Vol. 1 at p. xxv)…Those historical facts leave me in no doubt that it was the intention of the framers of the Constitution to confer unlimited jurisdiction on the State High Courts. It was deliberate. The point to note here is that under the 1999 Constitution, the word ‘unlimited’, which was in the jurisdiction section of the State High Court under the 1979 Constitution, was removed from section 272 of the 1999 Constitution. Are we to take it then, as the defendants would want, that the removal of the word ‘unlimited’ from the current section 272 of the 1999 Constitution means nothing? Are we to interpret section 272 of the 1999 Constitution as granting State High Courts unlimited jurisdiction simply because the history of the jurisdictional scope of High Courts under the Constitution shows that they once enjoyed unlimited jurisdiction and so must continue to so enjoy unlimited jurisdiction even when the law makers have promulgated otherwise? Is the learned SAN to the defendants saying that the law makers cannot reduce the jurisdiction of State High Courts through due and constitutional process? The learned SAN to the defendants is not attacking the alteration process that gave rise to the Third Alteration to the 1999 Constitution. So why would the learned SAN to the defendants read ambiguity to a word that admits of no ambiguity? The defendants had earlier cited Olaniyi v. Aroyehun [1991] 5 NWLR (Pt. 194) 652, where the Supreme Court held at page 690 D – F per Nnaemeka-Agu Agu, JSC as follows – There is a presumption that a Constitution, as well as other statutes, does not create new jurisdictions or enlarge existing ones save by express words...The courts have always viewed the question of transfer of jurisdiction from one organ or even one set of courts to the other most seriously. They always insist on express words to do so. The opening words of section 254C(1) of the 1999 Constitution, as amended, quoted above and the heads of jurisdiction that follow them leave no one, and nothing, in doubt that the National Assembly intended to transfer jurisdiction over all employment matters from the High Courts to the NICN; and I so hold. The defendants also argued that the long title of the Third Alteration to the 1999 Constitution should guide the determination of the scope of the jurisdiction of this Court, citing the statement of Karibi-Whyte, JSC in Bello v. Attorney-General Oyo State [1986] 5 NWLR (Pt. 45) 828 at 871 E – F. Of particular note are the qualifying words of His Lordship. While His Lordship accepted that the “long title of a statute is now accepted as an important part of it and may be relied upon as explaining its general scope and aids in its construction”, he however cautioned that “in determining the meaning of the provisions of the law, it is to the section construed that the interpreter should first seek assistance. Where the meaning of the words used in the section [is] clear and unambiguous that meaning governs. It is not permissible to look at the scope of the title to modify the interpretation of the plain words of the section” (the emphasis is mine). The question is: what is ambiguous in the meaning of the word ‘employment’ to warrant the recourse to the long title of the Third Alteration to the 1999 Constitution? From all the definitions of the word ‘employment’ so far given in this judgment, I do not see any ambiguity in the meaning of the word ‘employment’ as to warrant recourse to the long title to the Third Alteration to the 1999 Constitution as an aid to construction; and I so hold. In general, I agree with the submissions of the claimant. It is the Court being called upon to make the case reference that must decide on the substantiality of the question raised. I am not satisfied that the question posed by the defendants raises any substantial question of law. In any event given the items of jurisdiction granted this Court under section 254C(1) of the 1999 Constitution, as amended, I agree with the claimant that the case of the claimant can fall on more than one of those items of jurisdiction; for whichever way that the question posed for case stated may be answered, the point is that there is the strong possibility that the instant claims of the claimant may be caught up under any of the items of jurisdiction given to this Court. And here I refer to paragraphs (d), (f), (k) and (h) of section 254C(1) of the 1999 Constitution, as amended i.e. even if section 245C(1)(a) is to be discounted. I, consequently, hold that the said question posed does not raise any substantial question of law to warrant this Court granting the application for case stated. The authorities (e.g. Gamioba v. Esezi) have cautioned lower courts against abdicating their duty in the guise of case references. The defendants have not even joined issues with the claimant by filing and serving their statement of defence and other accompanying defence processes. Only a challenge to jurisdiction (which the defendants later withdrew) can be done at this stage, not an application for case stated regarding the question of jurisdiction as the defendants have done. In conception, and as can be gleaned from the concluding part of section 295(2) of the 1999 Constitution, as amended, an application for case stated assumes that there are other pending issues within the case that are to be decided by the Court making the case reference. These pending issues are then to be decided on the basis of the opinion of the higher court as to the question of law posed to it. This is not the case in the instant matter. If the question posed by the defendants is referred to the Court of Appeal, what it means is that this Court would have done nothing other wait on the Court of Appeal to do this Court’s job, which is to first determine whether or not this Court has jurisdiction over the case of the claimant. I do not think that a trial court can shy away from its primary duty of adjudication in the name of a case stated. For instance, it is the primary responsibility of a trial court or court of first instance, if it is raised, to determine whether or not it has jurisdiction over the matter before it. I note that the exception to this rule can be found in the clear and direct statutory provision of section 24(5) and (6) of the NIC Act 2006 and the equivalent provision under the Federal High Court Act where in terms of transferred cases from one Court to another, if there is still an issue as to which of the two Courts has jurisdiction over the matter transferred, then a case stated can be made to the Court of Appeal. Except for this instance, a trial court cannot transfer to a higher court its primary duty of determining whether or not it has jurisdiction over a matter in the name of a case stated. This is not the intendment of a case stated application. I must remark here that I search through the case law authorities regarding issues that touch on the jurisdiction of this Court. What I found was that in all the said cases, the issue of jurisdiction had started at the High Courts, was appealed against to the Court of Appeal and then ultimately to the Supreme Court. In all of this, this Court never had the opportunity to state its viewpoint on what it thinks to be the scope of its jurisdiction. So when this application for case stated was filed by the defendants, I drew the attention of the learned SAN to the defendants to this fact and asked why the matter cannot simply be resolved on the basis of the preliminary objection the defendants had also filed (more so when the written submissions for both the application for case stated and the preliminary objection were the same) since whatever this Court decides in terms of jurisdiction can be appealed against anyway. The learned SAN requested that the Court gives him time to think through this. The choice of the learned SAN was to withdrew the preliminary objection and argue the present application instead, the effect of which would again be that this Court would have no opportunity to state an opinion on the issue of its jurisdiction. In my humble opinion, the preliminary objection as to jurisdiction raised by the learned SAN to the defendants is the appropriate process that the defendants should have used to resolve the issue of the jurisdiction of this Court, not by a procedure of case stated. I must further remark, even if it will amount to an aside, that globally, the resolution of employment/labour disputes is guided, among others, by this principle: it is better to have a bad decision quickly than a good decision too late. This is a variant of the adage, ‘justice delayed is justice denied’. In other words, speed is a major guiding principle in the resolution of labour and employment disputes even if this is at the risk of an unfair decision. See my extra-judicial writing (B. B. Kanyip – “Labour Law” in Niki Tobi – Uwais Through The Cases (Snaap Press Ltd: Enugu), 2006 459 at p. 462). A situation where a worker challenged his suspension and subsequent dismissal from work and it took 13 years to resolve the question of jurisdiction with the Supreme Court ordering that the case be remitted to the High Court and tried all over by another judge, as was the case in Amadi v. NNPC [2000] 5 WRN 47 should certainly be unacceptable and frowned on. The admonition of Hon. Justice Uwais, CJN in that case and in that regard is worth noting here. To His Lordship – The action in this case was brought on the 29th day of April, 1987. The motion on notice to strike out the case for want of jurisdiction is dated 15th day of April, 1988; that is about a year after the suit was filed. The ruling of the High Court was delivered on the 20th day of June 1988. The appeal against the ruling was delivered by the Court of Appeal on the 16th day of February 1989. The final judgment on the interlocutory appeal is delivered today by this court [i.e. June 2nd 2000]. It has thus taken thirteen years for the case to reach this stage. With the success of the plaintiff’s appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage justice delayed is justice denied may cease to apply to the proceedings in our courts. Worse still, in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 SC per Rhodes-Vivour, JSC, it took 23 years to resolve the issue of jurisdiction between the Federal High Court and the State High Court over an employment dispute. This is the outcome that the instant case is heading to given the present application of the defendants. Having held that the question posed by the defendants does not raise any substantial issue of law, it means that there is no basis to stay the proceedings of this case as prayed for by the defendants. This Court has jurisdiction over the claims of the claimant on the authority of section 7 of the NIC Act 2006 and section 254C(1) of the 1999 Constitution, as amended; and I so hold given that the submissions of the defendants as to case stated also challenged the jurisdiction of this Court. For all the reasons given and for the avoidance of doubt, I find and hold as follows – 1. The question posed by the defendants for case stated to the Court of Appeal does not raise any substantial question of law to warrant this court making the reference. 2. Since the submissions of the defendants also challenged the jurisdiction of this Court to hear and determine the claims of the claimant, this Court has the jurisdiction to hear and determine the claimant’s case. 3. The application for case stated lacks merit and so is hereby refused and hence dismissed. 4. The application for stay of proceedings also lacks merit and so is also refused and, therefore, is also dismissed. 5. The case of the claimant shall proceed to hearing. 6. Cost is put at Fifty Thousand Naira (N50,000) only payable by the defendants to the claimant. Ruling is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip