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The originating process by which this action was commenced is dated and filed on 7th January, 2008 at the Federal High Court, Abuja. The matter was transferred to this Court on the 23rd November, 2012 via an order under the hands of Hon. Justice A. Bello and the case file received in this Court on the 3rd February, 2012. The reliefs sought by the claimants are as stated in paragraph 10 of the claimants’ Statement of Claim, and are listed below: 1. A DECLARATION that the attempt or actual transfer of the services of the plaintiffs from the 1st Defendant to either the Lagos State Fire Service or the Federal Capital Territory Fire Service or any other service for that matter is unconstitutional, illegal, null and void and constitutes a breach of contract between the plaintiffs and the 1st Defendant. 2. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, whether by themselves, their officers, agents, servants, privies or otherwise howsoever from further effecting the transfer of the services of the Plaintiffs from that of the 1st defendant to the Lagos State Fire Service or the Federal Capital Territory Fire Service or any other service for that matter. 3. SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances of this case. On the 28th March, 2012 when this matter came up before this Hon. Court, it raised the issue whether by the provisions of sections 251[p] and 254C of the Constitution of the Federal Republic of Nigeria, 1999 as altered [1999 Constitution as altered] this Hon. Court has jurisdiction over the cause of action herein. Court also directed that it should be addressed on whether this in not a proper case for the Court to exercise its discretion under section 24 [5] of the National Industrial Court Act, 2006 [NICA, 2006] bearing in mind the decision of the Supreme Court in OBIUWEUBI V. CBN [2011] LPELR – 2185 [SC] AT P. 25, PARAS. B – E. Counsel to the parties were consequently ordered to file Written Addresses thereto. On the 11th of December, 2012 the claimants’ counsel adopted his Written Address. The Written Address of the counsel to the Defendant dated 18th May, 2012 and filed 1st June, 2012 was deemed adopted since he was absent in Court while the case was adjourned for him to adumbrate. After several adjournments without the counsel turning up to adumbrate, his right of adumbration was foreclosed on 21st January, 2012. Claimants’ Counsel formulated 2 issues and they are as listed below: 1. Whether the Federal High Court did not cease to have jurisdiction in respect of this matter on the 4th day of March, 2011 in view of the provisions of section 254C of the 1999 Constitution of the Federal Republic of Nigeria [as amended] which confers exclusive jurisdiction on the National Industrial Court in matters connected with or relating to labour or employment? 2. Whether the Federal High Court was right to have transferred the matter to the National Industrial Court and whether the National Industrial Court has the power to receive and entertain the matter? ISSUE NO. 1 Under Issue No. 1, counsel to the claimants argued that section 251 of the Constitution of the Federal Republic of Nigeria, 1999 as altered [1999 Constitution] is expressly made subject to section 254C of the 1999 Constitution as altered. Counsel submitted that the implication being that any conflict between the two must be resolved in favour of the later – NGIGE V. OBI [2006] 14 NWLR 14 NWLR [PT. 999] 1 AT 227, PARAS. B – E; NPA V. EYAMBA [2005] 12 NWLR [PT. 939] 409; ALAMIESEIGHA V. FRN [2006] 16 NWLR [1004] 1 AT 91 – 92, PARAS. D – D. Counsel submitted that where the provisions of two statutes conflict, wherein one of the two statutes is general and the other specific, the specific prevails – N.D.D.C. V. PRECISION ASSO. LTD [2006] 16 NWLR [PT. 1006] 527 AT 553, PARAS. F – G. Counsel to the claimants argued further that before the matter was heard to conclusion at the Federal High Court, the Federal High Court was divested of jurisdiction; the National Industrial Court [NICN] to which the action has been transferred has the jurisdiction to entertain it, the action having been commenced by due process of law. Counsel cited A.G. LAGOS V. DOSUNMU [1989] 3 NWLR [PT.111] 552; ALAO V. AKANO [1988] 1 NWLR [PT.71] 431; UWAIFO V. A.G. BENDEL [1982] 7 SC 124 and a host of other authorities. ISSUE NO. 2 Counsel to the claimants argued that by virtue of section 22[2] of the Federal High Court Act in conjunction with sections 254C & 254D of the 1999 Constitution as altered and section 24[3] of the NICA, 2006 the Federal High Court has the vires to transfer the matter to the NICN and the NICN has the jurisdiction to entertain it. Counsel submitted that the above submission is reinforced by Order 28, Rule 3 of the National Industrial Court Rules, 2007 [NIC Rules]. Counsel finally urged the Court to uphold his submissions. We now come to the Written Address of the Respondents. The respondents’ Counsel formulated 2 issues for determination of the points raised sou motu by the Court; and they are as listed below: 1. Whether the National Industrial Court is vested with the jurisdiction over disputes arising from the decision of the Federal executive Council to transfer Federal Fire Service to Lagos State Government, Federal Capital Territory or other States? 2. Whether the Federal High Court is divested of its jurisdiction to entertain this suit in view of section 254C [1] of the 1999 Constitution [as amended]. [sic] Counsel to the respondents submitted on Issue No. 1 that it is the claim of plaintiff as contained in his writ and statement of claims that determines the jurisdiction of the Court and not the status or capacity in which such plaintiff sued. Counsel relied on OLORUNTOBA-OJU V. DOPAMU [2008] 7 NWLR [PT.1085] 1 AT 23 PARAS. B –D. Counsel submitted further that a perusal of paragraphs 1 – 10 of the claimants’ Statement of Claims showed that it is the Federal Executive Council’s administrative decision to transfer the services of the claimants to various State Governments that is being challenged. Thus, counsel submitted that by virtue of section 251[i] of the 1999 Constitution as altered the matter is only cognizable at the Federal High Court to the exclusion of all other courts. Counsel referred to NEPA V. EDEGBERRO [2007] 18 NWLR [PT. 798] 100 – 101 and OBIUWEUBI V. CBN [2011] 45 NSCQR 109 RATIO 21. Counsel argued that since the decision of the Federal Executive Council which led to this action does not relate to labour matters the mere fact that the claimants instituted this action in their capacities as employees against their employers would not divest the Federal High Court of jurisdiction by virtue of section 251[i] [p], [q] & [r] of the 1999 Constitution as altered. Counsel argued further that in construing the jurisdiction of the NICN cognizance must be taken of section 254C – [1] of the 1999 Constitution as altered and that the intention of the section is to create a specialized court with exclusive jurisdiction to handle everything relating to or connected to labour, trade union, industrial relations, etc. Counsel cited NATHANIEL AJUBOR & ANOR. V. A.G. EDO STATE & ANOR [2001] WRN 166 AT 181 LINES 15 – 20; to the effect that a statute must be construed as a whole to arrive at the intention of the Legislature. Counsel also submitted that where the words of a statute are clear, they must be given their ordinary meanings. Counsel argued that the claimants are employees of the 1st Defendant who are part of the government policy to be ceded to States; whereas the subject matter of the suit is the ceding of the Federal Fire Service which is not a labour matter by virtue of 254C – [1] of the 1999 Constitution as altered; and for this reason this Court has no jurisdiction. Counsel submitted that the claim by the claimants presently is to declare the decision and/or policy of the Federal Government to cede the Federal Fire Service to States as null and void; and that the claim not being a labour matter, this Court lacks the jurisdiction to entertain it. Counsel submitted that this suit has to do with the administration or management and control of the Federal Government and that the ceding of the Federal Fire Service by the Federal Executive to States is an administrative action by the Federal Government; and by that, the Federal High Court has exclusive jurisdiction over the matter to the exclusion of all other courts. Counsel submitted that because trial had commenced at the Federal High wherein three witnesses had been called before the matter was transferred to this Court that the matter was supposed to continue and be concluded at the Federal High Court by virtue of OBIUWEUBI V. CBN [2011] 45 NSCQR 51 AT 118. I have carefully considered the peculiar circumstance of this case, the Addresses of counsel to the two sides and the authorities cited. I must say that I agree with the contention of the claimants’ counsel that this Court has jurisdiction over the subject matter of the suit. In OBIUWEUBI V. CBN [2011] LPELR – 2185 [SC] AT P. 21 the Supreme Court made the following findings, which I consider relevant to this case: I am firmly of the view that as from the 17th of November 1993 the Federal High had exclusive jurisdiction if the matter is civil matter arising from the administration, management and control of the Federal Government or any of its agencies… This suit has to do with the administration or management and control of the Federal Government. The respondent is a Federal agency and the appellant is/was its employee. The termination of the appellant’s appointment is an administrative action by an agency of the Federal Government, the respondent. [Bold type for emphasis] In the excerpt quoted above, it is clear that the cause of action is the termination of the appellant’s appointment through the administrative or management action of a Federal Government agency. Can it be said that such termination of appointment is not an employment or labour related issue simply because it was done as a result of the management of a Federal Government agency or because it was an administrative action of a Federal Government agency? I think the answer is patently in the negative. Termination of employment is obviously an employment related matter. It is the nature of act done and its effect that shows whether it is connected with or related to labour or employment. As at the time this matter got to the Supreme Court, the Federal High Court had jurisdiction over employment matters involving Federal workers. It is this jurisdiction that has been transferred to the NICN by virtue of section 254C of the 1999 constitution as altered. The above case is very much similar to the present one. In the case at hand, the Services of the claimants who were/are staff of the Federal Government Fire Service [1st Defendant] were allegedly transferred or attempted to be transferred to the Lagos State Fire Service or the Federal Capital Territory Fire Service. If they say the services of a person are being transferred, my understanding of it is that that person himself is being transferred because you cannot transfer a person’s services without transferring the person in whom the services inure. Therefore, the transfer or attempted transfer of the services of the claimants in this action is the transfer of the officers concerned. H.L. Kumar in, “Transfer of Employees under Labour Laws” [3rd Edit., 2005], Universal Law Publishing Co. Ltd., Delhi p. 1, the learned author stated thus: The expression “transfer” connotes that an employer has more than one place of business and the employee is called upon to work in a different place of business from the one in which he worked previously. Transfer is an ordinary and usual incident of service. The right of the employer to appoint cannot but carry with it the right to post the employee anywhere else, unless the contract or the governing rules rule out such a right. It is not dismissal, discharge, removal from service or termination thereof in any way and does not involve any civil consequence. [Bold type for emphasis] From the above, it is abundantly clear that it is an employer of labour that has the right to transfer and issue of transfer is an incident of employment or service. The claimants in issue are employees of the Federal Government via its Federal Fire Service, who in this case is a Federal agency. It is not in doubt that the staff of all Federal Departments, Ministries, parastatal, and agencies together with their offices are answerable to the Executive Arm of Government. It follows that they may be subject to Federal Government policies and administrative or management decisions. But when such decision or policy seeks to transfer the services of a particular group of staff or any staff at all from one place to the other, it seems inconceivable, in my very humble opinion; that such transfer of services would seize to be an employment issue or issue arising from or connected with employment. As has been shown above, transfer of service is an incident of employment. The attempt to transfer the claimants by the Federal Executive Council’s decision to cede their services to another government is, in my view, patently an employment or labour issue or issue connected with or arising from employment or labour. If he claimants had not been in the employment of the Federal Government, the Federal government would not have had the power to transfer them: this is clearly a matter arising from workplace in the contemplation of section 254C - [1] [a] of the 1999 Constitution as altered; apart from being an employment matter or matter connected with employment. To this extent, I disagree with the contention of the learned counsel to the respondents that the policy or decision which seeks to transfer them is not connected to or related to employment, labour and industrial relations. It is the attempt or actual transfer of their services that the claimants are challenging – see their reliefs as contained in their Statement of Facts. I therefore cannot see how this is not connected with or related to employment. After all, in order to determine whether a court has jurisdiction the Court can only take cognizance of the writ and/or pleadings of the claimants and not that of the defendants. So, in a nutshell if there appears to be any conflict between the provisions of sections 251[1] [p], [q] & [r] and that of section 254C of the 1999 Constitution on the jurisdiction of the NICN to try this matter that of section 251[1] [p], [q] & [r] shall be read subject to that of section 254C that confers exclusive civil jurisdiction on the NICN on all employment, labour and industrial relations matters. To this extent, I agree with the contention of the claimants’ counsel that section 251 of the 1999 constitution must be read subject to section 254C of the 1999 Constitution. But to me, the issue goes beyond this; and this the two sides seem not to fully appreciate. The matter was at the Federal High Court and trial had commenced with the claimants calling three witnesses before the Federal High Court was divested of jurisdiction by virtue of section 254C of the 1999 constitution as altered. And it has been held in OBIUWEUBI V. CBN supra that: A litigant who had a cause of action in 1990 would have his case governed by the law at the time [i.e. 1990] if trial commences before 1993 the court to try the case would be the State High Court but if after 17/11/93 the case would be tried in the Federal High Court. Decree 107 of 1993 denied the State High Court jurisdiction as from 17/11/93 and transferred jurisdiction on the matters in section 251 of the Constitution to the Federal High Court. As from 17/11/93 the State High Court no longer had jurisdiction. [See p. 25, paras. B – E] This Court is bound by the decision of the Supreme Court of Nigeria being the highest Court of the land. By this decision, it is abundantly clear that once trial had commenced in the court originally having jurisdiction in the matter before the ouster of jurisdiction; it does not matter that the trial court’s jurisdiction was ousted mid-way into the trial or before the trial was concluded, such trial court shall continue with the trial to conclusion. Now this matter has been transferred to this Court by the Federal High Court even though trial had commenced on the 9th November, 2010 before the Federal High Court. But before it could conclude the trial it was divested of jurisdiction by section 254C of the 1999 Constitution as altered. The Third Alteration Act, 2010 which ousted the jurisdiction of the Federal High Court in employment matters by virtue of section 254C of the 1999 Constitution as altered came into effect on the 4th March, 2011. This is well after the case had been opened by calling witnesses at the Federal High Court. It is my candid opinion, based on OBIUWEUBI V. CBN supra, that the Federal High Court was supposed to continue with the trial of the case to conclusion notwithstanding that during the trial of the case it was divested of jurisdiction. This is extent, I agree with the learned counsel to the respondents that the Federal High Court was supposed to carry on with the trial notwithstanding its being divested of jurisdiction mid-way into the trial. This Court is now in a dilemma! Can it commence trial of the case de novo since it ordinarily has jurisdiction on the matter but for the fact that the case had already been opened at the Federal High Court before it was divested of jurisdiction on employment matters? The Supreme Court’s decision does not seem to provide an answer for this poser. Since this Court is of the opinion that it is the Federal High Court that is supposed to hear the case to conclusion having opened it before it was divested of jurisdiction and not this Court, section 24 – [5] of the NICA becomes relevant because it states what happens in such a situation. It states that in such a situation the court to which the matter is transferred shall state a case to the Court of Appeal for guidance and directive as to what to do. I therefore hold that, by virtue of section 24 – [5] of the NICA as altered, this is a proper situation where this Court can exercise its discretion to state a case on point of law to the Court of Appeal for proper guidance and directive as to what to do. The Court shall therefore accordingly state a case on points of law to the Court of Appeal on this issue. ……………………………………………. Hon. Justice B.A. Adejumo, OFR President, National Industrial Court of Nigeria