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REPRESENTATIONS: G. O. Nwaebo Esq. for the Claimant Richard Chukwuocha Esq. for the Defendants. RULING This action was instituted by the claimant against the Defendants vide a General Form of Complaint dated 14th Feb, 2013 and filed on the same date. By the said Complaint, the Claimant seeks the following reliefs against the defendant: a. An Order of Court declaring the constant use of the Claimant’s picture by the defendant for an advertisement without her consent as unlawful and an infringement on the Constitutional right to private life of the Claimant. b. An Order of perpetual injunction restraining the Defendant, their agents or privies from further use of the Claimants pictures for their advertisement. c. The sum of N100,000,000.00(One Hundred Million Naira) only against the defendant, being damages for the unauthorized use of her photograph by the defendant for advertisement to boost their company’s image. d. The sum N25, 000,000.00 (Twenty-five Million Naira) any (sic) being damages suffered by the Claimant for the ear defect she incurred while working for the defendant. The court suo motu asked Counsel on both sides to submit written addresses with respect to its competence to hear the matter, having regard to the claims. The written addresses were duly filed and adopted on the 17th day of December 2013. Claimant’s Counsel in his written brief, formulated a lone issue for determination, and that is “Whether the honourable court has jurisdiction to hear this suit considering the reliefs of the Claimant.” He submitted that by Section 254(C) (1) of the Constitution, the National Industrial Court was vested with exclusive jurisdiction to hear civil matters relating to labour. He also relied on Section 7 of the NIC Act 2006 to submit that this court has jurisdiction to hear civil matters relating to labour, especially as it concerns conditions of work, of health, safety and matters incidental thereto. That the Law empowers NIC to hear and determine all disputes involving labour or the work place. He submitted that these provisions of these laws do not affect or concern only those in service but extends to those retired sacked or retrenched. Counsel to the Claimant submitted that the claimant was a staff of the defendant. She was however subjected to hard working condition which resulted to a health condition which she is suffering till date although she is still undergoing treatment. Following this hard health condition, the Claimant was thrown out by the defendant on the ground of redundancy. The defendant few years later decided to use the Claimants photograph for advertisement in what they claimed was their in-house magazine and posters. Counsel submitted, that the totality of the above submission shows that it is a labour or industrial relation question and that this court has exclusive jurisdiction to hear and entertain the suit. Furthermore, Counsel submitted that the defence put up by the defendant in its Statement of Defence especially paragraphs 12, 13, 14 and 15 shows clearly that the legal questions involved in this suit relates mainly to activities that took place in a work place or industrial relations. He urged the Honourable court to hear the suit. Counsel to the Defendant formulated one issue for determination which is: “Whether having regard to the claims in the suit, the Honourable court has jurisdiction to entertain this suit.” In arguing the lone issue, counsel to the Defendant/Applicant cited the case of HIGH-FLOW FARM IND. Vs. UNIBADAN (1993) 4 NWLR (pt. 290) 717 @ 732-733 Paras F-B where the court referred to the case of MADUKOLU & ors V NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR 587; where the court laid down the guiding principles to be present in determining the jurisdiction of a court, and that any incompetence will render the proceedings a nullity. Per Bairamian, F.J. He submitted further that it is a fundamental principle that jurisdiction is determined by the plaintiff’s claim, and that it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court. He relied on the authority of WESTERN STEEL WORKS vs. IRON & STEEL WORKERS (1987) NWLR (Pt. 49) 284 and TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 AT PAGE 561, para B. Counsel further submitted that the statute that created the NIC and conferred jurisdiction on it is Section 254C(1) (a) – (m) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which provides thus: “254C(1) Notwithstanding the provisions of section of sections 251, 257, 272 and anything contained in this Constitution and addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (a) Relating to or connected with any labour, employment, trade, unions, industrial relation and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.” Counsel to the applicant stated that to pass the test of Section 254C (1) (a) of the Constitution, the claims in this suit have to be shown to relate to, or connect with any labour, employment, trade unions industrial relations and matters arising from workplace, the condition of service, including health, safety, welfare of labour, employee worker and matters incidental thereto or connected therewith. Counsel went further to submit that the claims in this suit particularly as contained at numbers (a), (b) and (c) at page 6 of the complaint herein, fall outside the coverage and/or contemplation of Section 254C (1) (a) of the Constitution. He further submitted that the reliefs contained at page 6 of the Complaint herein at (a), (b) and (c) seek reliefs for injuries that arose subsequent to the claimant’s contract of service with the Defendant. The Claimant had in the Complaint alleged that her employment was terminated in 2009, and that in August 2011, she discovered that the Defendant was using her picture in the defendant’s posters and website without authorization. The Claimant also, alleged that in August 2012 she discovered that her pictures were used in the beacon magazine, which is a publication of the defendant, again without her consent. He stated that the reliefs sought here by the claimant in this suit relate to the alleged unlawful use of her picture by the defendant after the termination of her employment. (reliefs a, b and c); and damages for the ear defect she incurred while working for the defendant (relief d) Counsel finally submitted that the NIC has no jurisdiction to entertain reliefs (a), (b), and (c) in the complaint. Having regard to the fact that the alleged unlawful use of the claimants picture occurred subsequent to the termination of the Claimant’s employment with the Defendant. There was therefore no contract of service between the Claimant and the Defendant as at the time the cause of action accrued to bring the said claims at (a) (b) and (c) of the complaint within the contemplation of the jurisdiction of this Honourable court. The said claims do not by any stretch of imagination, relate to or connect with the Claimants employment. He finally submitted that it may seem however that the honourable court has jurisdiction to hear relief (d) of the complaint relating to damages for the ear defect the claimant allegedly incurred while working for the defendant. Counsel urged the Court to strike out reliefs (a), (b), and (c) for the Court lacks jurisdiction to entertain it. I have carefully gone through the arguments of the parties by their counsel. I have decided to adopt the lone issue for determination submitted by both parties for the judicious determination of this case. That is: “Whether having regard to the claims in the suit, the Honourable court has jurisdiction to entertain this suit.” It is a trite law that jurisdiction is the life wire of any case. When a court assumes jurisdiction in a matter where it lacks jurisdiction, such action will be a nullity no matter how well conducted. This was well settled in the case of MADUKOLU & OTHERS vs. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR 587 where the Supreme Court laid down the guiding principles to be considered in determining the jurisdiction of a court. (Per Bairamian, F.J) “A court is competent when - 1. It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another; and 2. The Subject matter of the case is within its jurisdiction and there is no feature in the case which prevents court from exercising its jurisdiction; and 3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of a court is fatal for the proceedings and are a nullity however well conducted and decided: the effect is extrinsic to adjudication.” Section 254 (C) (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria as amended by the third alteration Act 2010 confers jurisdiction on the national Industrial Court to hear and determine among others, (a) matters relating to or connected with any labour, employment, trade, unions, industrial relation and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. (b) Matters relating to or connected with unfair labour practices or international best practices in labour, employment and industrial relations. There appears to be no dispute in the submission of both counsels as regards the provision regarding the fact that the NIC has exclusive jurisdiction and powers to hear and determine matters stated in section 254 (C) of the amended Constitution. There is therefore no point in over-flogging that point. The main point in issue therefore is whether the “subject matter of the case is within this court’s jurisdiction, and whether or not there is any feature in this case which prevents this court from exercising its jurisdiction.” For clarity, I have reproduced the claims of the Claimant below: a. An Order of Court declaring the constant use of the Claimant’s picture by the defendant for an advertisement without her consent as unlawful and an infringement on the Constitutional right to private life of the Claimant. b. An order of perpetual injunction restraining the Defendant, their agents or privies from further use of the claimants pictures for their advertisement. c. The sum of N100,000,000.00 (One Hundred Million Naira) only against the defendant, being damages for the unauthorized use of her photograph by the defendant for advertisement to boost their company’s image. d. The sum N25,000,000.00 (Twenty-Five Million Naira) being damages suffered by the Claimant for the ear defect she incurred while working for the defendant. The Supreme Court has aptly answered the question as to what determines the jurisdiction of a court in the case of ADETAYO & ORS. v. ADEMOLA & ORS. (2010) 15 NWLR (PT 1215) 169 when it held thus: "As to what determines the jurisdiction of a court, it is now firmly settled that the jurisdiction of a court, is determined by the Plaintiff's claim - i.e. by the subject-matter and claim before the court..." Per Ogbuagu, J.S.C. (P.30, para.A-B) It would appear that reliefs (a) – (c) reproduced above relate to actions in tort which springs from the details of the complaint which centers around facts indicating that the Defendant used the Claimants pictures in its posters and website without her consent. This act of the defendant can at best be described as a tortious act or better put, a libelous act. Libel has been defined in the case of LABATI vs. BADMUS (2006) 1 NWLR (Pt.1014) pg.199 as "defamation in permanent form, i.e. publication by the defendant by means of printing, minting, writing, picture or the like sign or matter defamatory to the plaintiff." Per UDOM-AZOGU, J.C.A. (P.13, Paras.E-F). The claimant’s claim in reliefs a, b & c is for an injury (publication of claimant’s picture) which is not rooted with employment rights or duties of the Claimant. Besides, the act complained of, did not arise during the pendency of the claimant’s employment. It cannot therefore be tied to the claimant’s employment rights. Infact there is nothing in the contract of employment to show that the act complained of is a violation of rights contained therein. This is not to say that the Claimant does not have a right of action. However, the nature of the reliefs sought in reliefs a, b & c do not fall within the purview of the jurisdiction of NIC as covered by Section 254 (C) (1) of the 1999 Constitution as amended. Salami JCA in the case of ZABUSKY vs. ISRAELI AIRCRAFT IND. (2008) 2 NWLR (Pt. 1070) 109 at P. 134, paras. C-F has held that "By jurisdiction, it is meant the authority which a court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means. In the instant case, the High Court of Lagos State is statutorily conferred with jurisdiction by the provisions of sections 10 and 11(1)(a) of the High Court Law, Cap. 60, Laws of Lagos State of Nigeria, 1994 to hear and determine actions in tort committed within Lagos State. [SPDC v. Isaiah (2001) 11 NWLR (Pt. 723) 168.]" Per Salami, JCA In OBI vs. INEC (2007) WRN (VOL. 45) 1 at 109, lines 30 - 40 (SC), in determining how the jurisdiction of a court is determined, held thus: "It is settled law that in deciding whether or not a court has the jurisdiction to hear and determine a case, it is the claim of the plaintiff as put before the court that ought to be considered. See Adeyemi v. Opeyori (1976) 9 - 10 S.C. 31; (1976) 1 FNLR 149; (1976) 10 NSCC 455 and Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; (1989) 20 NSCC (Pt. 3) 225; (1981) 9 SCNJ 1; (1989) ALL NLR 575." Per Aderemi,Katsina-Alu and Oguntade, JJSC. This Court therefore declines jurisdiction with respect to reliefs a, b & c of the Claimant’s Claim, as they do not fall within any of the categories of matters contemplated by Section 254 (C) (1) of the Constitution. Consequently, they are hereby struck out. As regards relief (d) sought by the claimants, which is “The sum of N25,000,000.00 (Twenty-five Million Naira) any (sic) being damages suffered by the Claimant for the ear defect she incurred while working for the defendant”, It clearly falls within the contemplation of Section 254(C)(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria as amended, as it relates to or it is connected with “labour, employment, trade, unions, industrial relation and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith”. I therefore hold that this court has the jurisdiction to hear the relief sought in (d). This court hereby assumes jurisdiction with respect to relief (d) of the Claimant’s claim, and will therefore proceed to hear same accordingly. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge