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Josiah O. Ogunwale and Miss O. E. Olaleye, for the claimants. Elder S. A. Ameh, Olakunle Ajibola and Miss O. M. Fagoyinbo, for the defendants. RULING This is a transferred matter from the High Court of Ogun State, Ota Judicial Division, sitting at Ota. The claimants had taken up against the defendants a writ of summons dated and filed on 12th April 2011. The claims of the claimant are for the following reliefs – 1. The sum of N2,500,000,000 (Two Billion Five Hundred Million Naira) against the defendants being general damages suffered in the hand of the defendants, during and after the trial and prosecution of the claimants by the STATE in HCT/19C/2000 owing to the defendants’ complaints to the Nigeria Police Force which subsequently arrest, charge and led to the prosecution by the State. 2. The cost of this action jointly by the defendants. At the first sitting of this Court on 17th September 2011, the Court noted that from the claimant’s joint statement of claim, the main relief sought by the claimants is for general damages for the arrest, charge and prosecution of the claimants by the defendants; in essence the claim is for malicious prosecution. The Court then asked whether it has jurisdiction over the matter. Section 24(5) of the National Industrial Court (NIC) Act 2006 enjoins that where a doubt as to jurisdiction is held by this Court in matters transferred to it by a High Court, the remedy is one of a case stated to the Court of Appeal after parties must have been heard on the issue. In consequence, parties were asked to address the Court on the twin issues of the necessity of a case stated to the Court of Appeal and the issue of law to be so stated. The parties obliged. The claimants’ written address is dated 24th September 2013 but filed on 26th September 2013, while that of the defendants is dated 31st October 2013 but filed on 1st November 2013. In summary, both parties submitted that this Court has jurisdiction over the matter and so there was no need for any case stated to the Court of Appeal. The claimants framed one issue for the determination of the Court i.e. whether this Court has jurisdiction to entertain this suit. To the claimants, their claim falls within the provisions of section 254C(1) of the 1999 Constitution, as amended, as the dispute that arose between the parties is hinged on section 254C(1)(a) and (b), which provide as follows – (1) 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, 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 relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith; (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; To the claimants, the claim before the Court is in respect of trade union and matters incidental to it, whereas, the provisions of the law in respect of this permits the hearing of such matter or any matter incidental and ancillary thereto to the NIC as provide under section 254C(1) of the 1999 Constitution, as amended. The claimants then referred the Court to section 24(5) of the NIC Act 2006, which provides as follows – Where the court to which any cause or matter has been transferred, pursuant to subsection (2) or (3) of this section, is of the opinion that the cause or matter ought in law to be dealt with by the court which transferred the cause or matter, the first mentioned court shall, after hearing counsel on behalf of the parties, state a case on a point of law for the opinion of the Court of Appeal. To the claimants, it is trite law that the Constitution is the ground norm which births other laws and acts and such laws cannot override the provisions of the Constitution. The claimants then submitted that this Court has jurisdiction to hear the matter and does not require the case to be stated on points of law for the opinion of the Court of Appeal given that the 1st defendant is a trade union and the claim, being for malicious prosecution, section 254C(1) and (5) of the 1999 Constitution, as amended, gives this Court jurisdiction in civil and criminal causes and matters. The claimants then urged the Court to assume jurisdiction over the matter. The defendants also framed one issue for the determination of the Court i.e. whether this Court has jurisdiction to entertain and determine this matter vis-à-vis the 1999 Constitution, as amended. The defendants then submitted that this Court has exclusive jurisdiction as regards matters of the nature of the one in the instant case. That this position is sequel to the long established law that the Courts are creatures of statute and it is the statute that created a particular Court that will also confer on it jurisdiction or power. Jurisdiction may be extended not by the Courts but by the legislature, citing Governor of Kwara State v. Gafar [1997] 7 NWLR (Pt. 511) 51 CA and Obiuweubi v. CBN [2011] All FWLR (Pt. 575) 214; [2011] 7 NWLR (Pt. 1247) 465 SC. The defendants went on that where jurisdiction of a court over a suit is challenged, the Court is entitled under section 6 of the Constitution to consider the plaintiff’s claim before it in order to decide whether it has jurisdiction to entertain it, citing Adeleke v. OSHA [2006] 5 NWLR (Pt. 1006) 608 CA. The defendants also referred the Court to section 1 of the Trade Unions Act (TUA) Cap. T14 LFN 2004 which defines a trade union as a combination of workers or employers for the purpose of regulating the terms and conditions of employment. The defendants urged the Court to note that the two important factors in determining whether an association is trade union or not i.e. the combination must be of workers or employers and it must be for the purpose of regulating the terms and conditions of employment, referring to National Association of Local Government Officers v. Bolton Corporation [1943] AC 166 and section 254C(1)(b). That the matter before the Court is completely a matter arising from the trade union and matters incidental to it. Furthermore, that this Court has jurisdiction not only in civil related matters but also criminal matters arising from matters that are connected with matters in which jurisdiction is conferred on this Court, referring to section 254C(5) of the 1999 Constitution, as amended. That the Court should note that the provisions of the Constitution have stripped the High Courts of hearing the matter of this nature; hence there is no need to let the State High Court handle the matter when the ground norm has divested it of jurisdiction and can no longer adjudicate and entertain the matter. The defendants the prayed the Court to assume jurisdiction over the matter not only in the interest of laying a good precedent for the growth of the law but for the purpose of giving effect to our ground norm which takes precedent over and above any law in existence within the shores of the country. I heard both counsel in the matter and considered all the processes. As I indicated earlier, both parties are agreed that this Court has jurisdiction over the case at hand and so that there is no need for a case stated in respect of it to the Court of Appeal. The issue that presently arises is whether both counsel to the parties are correct in their conclusion and prayer. It is trite that Courts are enjoined to guard their jurisdiction jealously; however, where a Court has no jurisdiction over a matter, however brilliantly the Court decides the matter, it is a nullity. It is also elementary learning that parties do not and cannot confer jurisdiction on a Court. See Okolo v. Union Bank of Nig. Plc [2004] All FWLR (Pt. 197) 981 and FGN v. Oshiomhole [2004] 3 NWLR (Pt. 860) 305 which held that parties cannot by connivance, acquiescence or collusion confer jurisdiction on a Court where jurisdiction is lacking. Neither can lack of jurisdiction be waived by one or both parties. See Okolo v. Union Bank of Nig. Plc and Mobil Production Nig. Unltd v. Monokpo [2004] All FWLR (Pt. 195) 575. In like manner, by Tukur v. Government of Gongola State [1989] NWLR (Pt. 117) 517, Mudiaga-Erhueh v. NEC [2003] FWLR (Pt. 137) 1066 and African Newspaper & ors v. FRN [1985] 2 NWLR (Pt. 6) 137 SC, a Court cannot expand its jurisdiction, it can only expound the jurisdiction conferred on it. See also this Court’s decision in Errand Express Limited v. Maritime Workers Union of Nigeria unreported Suit No. NIC/LA/39/2011 the judgment of which was delivered on March 26, 2014. So, even when both parties in the instant case are agreed that this Court should assume jurisdiction over the case at hand, the Court must satisfy itself that that is the correct position of the law. The general argument of the parties in the instant case is that acts which gave rise to the instant case, acts which caused the claimants to be arrested, tried and prosecuted, arose out of trade union activities and so this Court has jurisdiction over the case given that section 254C(1) confers on this Court jurisdiction over trade unions and matters incidental thereto. I simply wish to ask: where a trade union buys a piece of land and there is a dispute over sale of the land, would this Court have jurisdiction over the case simply because a trade union is involved and this Court has jurisdiction over trade unions? I do not think. One way this Court has often sought to determine its jurisdiction has always been to determine which legal rules would apply in resolving the issue at hand. If it is labour or employment law rules, then this Court would assume jurisdiction, but if it is some other rule of law then most probably this Court would have no jurisdiction. See Okosun v. A & P Foods Ltd unreported Suit No. NICN/LA/474/2012 the ruling of which was delivered on 5th March 2013 and Bamidele Aturu, in his book, Law and Practice of the National Industrial Court (Hebron Publishing Co. Ltd: Lagos), 2013 at page 45. I concede that this rule is not sacrosanct but it has always been helpful in determining jurisdiction given that this Court is a limited subject matter Court, limited to only matters of employment, labour and industrial relations. Now, this Court has always assumed jurisdiction over workplace injuries i.e. injuries occasioned by negligence at the workplace where employers are sought to be held liable under tortious principles of employer’s liability; and this is because section 254C(1)(b) of the 1999 Constitution, as amended, specifically confers jurisdiction on this Court over the Workmen’s Compensation Act or any other enactment replacing it. But regarding other heads of liability in tort, which are all sui generis, this Court has been reluctant to assume jurisdiction even when the “matters incidental thereto or connected therewith” argument has been raised. In this respect, this Court had declined and still declines jurisdiction in claims for defamation even when the defamatory imputation was said to have arisen from the workplace given that Agbo v. CBN [1996] 10 NWLR (Pt. 478) 370 CA held that where a master accuses a servant of misconduct, whether proved or not, but decides merely to terminate his appointment in accordance with the service agreement without reference to the fact of misconduct in the latter of termination, the servant cannot rely on wrongful termination of appointment as cause of action to clear his name for his future, among other purposes. His recourse in an appropriate case may be in an action for defamation. See Dr E. G. Ayo Akinyemi v. Crawford University [2011] 22 NLLR (Pt. 61) 90 at 110 and Mr. C. E. Okeke & 2 ors v. Union Bank of Nigeria Plc [2011] 22 NLLR (Pt. 61) 161 at 183. Additionally, Geoffery v. Setraco Nigeria Ltd & ors unreported Suit No. NIC/ABJ/296/2012 the ruling of which was delivered on 4th March 2013 is a case where an applicant was assaulted by fellow workers or superior officers and verbally abused. This Court declined jurisdiction to entertain the matter under section 254C (1)(d) of the 1999 Constitution, as amended. Quite rightly then, Bamidele Aturu, in his book, Law and Practice of the National Industrial Court (op. cit) at page 25, remarked that – The fact that the right of a person is infringed in the workplace is not sufficient to confer jurisdiction on the court except an employment issue is involved. It is in this context that the Court doubted whether it has jurisdiction over the instant case. From the main claim of the claimants there is no doubt that the case is for malicious prosecution, which comes under the tort of that name. Does this Court have jurisdiction over it? I sincerely do not think so; and here I must disagree with both counsel in the matter who argue that the Court has jurisdiction. The tort of malicious prosecution is sui generis; it can found an independent action in its own right. The law required to resolve the issues it raises is not employment or labour law. So I doubt if this Court can assume jurisdiction over it. I, therefore, find and hold that the matter at hand qualifies under section 24(5) of the NIC Act 2006 for the Court to “state a case on a point of law for the opinion of the Court of Appeal”. This is because the matter is a transferred matter from the High Court of Ogun State sitting at Ota and so I cannot sit on appeal over it by re-transferring the case back to it. Section 24(5) of the NIC Act 2006 accordingly enjoins that in the circumstance, the Court makes a case stated to the Court of Appeal for its opinion. In consequence, I most humbly and hereby “state a case on a point of law for the opinion of the Court of Appeal” to wit – In an action for general damages suffered in the hand of the defendants during and after the trial and prosecution of the claimants by the STATE in HCT/19C/2000 owing to the defendants’ complaints to the Nigeria Police Force which subsequently arrested, charged and led to the prosecution of the claimants by the State i.e. in an action for malicious prosecution arising from acts of members of a trade union (the National Union of Chemical Footwear, Rubber, Leather and Non-Metallic Product Employee in the instant case), does jurisdiction lie with the National Industrial Court or the High Court of Ogun State sitting at Ota? Ruling is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip