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This is a Notice of Preliminary Objection filed by the 3rd defendant on the 11th November 2013 objecting to the jurisdiction of this court on the following grounds: (1) The Cross River State High Court does not have the power to transfer a suit before her from the Cross River State High Court to the National Industrial Court. (2) By Section 11(2) of the National Industrial Court Act 2009, the suit has abated as at the time it was transferred from the Cross River State High Court to the National Industrial Court, Calabar Division. The objection is supported by a written address. In opposing the objection, the claimant filed a written address dated 19th November 2013. The 3rd defendant/objector filed a reply on point of law on 10th January 2014. Learned counsel to the 3rd defendant/objector raised the following issues for determination: 1. Whether the Cross River State High Court has the powers to transfer a suit to the National Industrial Court on the ground that it lacks jurisdiction to hear it? 2. Whether the present suit as constituted has not abated? He submitted that though the Cross River State High Court has no jurisdiction to hear and determine matters as it affect labour, employment, trade matter etc, yet it cannot transfer matters to the National Industrial Court. He submitted that the provisions of Section 24(3) of the National Industrial Court Act is inconsistent with section 274 of the 1999 Constitution. He further submitted that while section 254 F(1) of the 1999 Constitution (Third Alteration) Act, 2010 Act No. 3 confers or vest upon the National Assembly power to make laws in respect of the National Industrial Court, Section 274 of the 1999 Constitution confers the legislative authority to make laws for the High Court of a State on the State House of Assembly. He submitted that while only the National Assembly, can make laws with respect to the practice and procedure in the National Industrial Court, the power to make similar laws for the High Court of a State, is vested in the House of Assembly of a State citing Fasakin Foods (Nig) Ltd v Martins Babatunde Shosanya (2006) LPELR-SC. 312/2001.Counsel stated that section 22(3) of the Federal High Court Act in which the above cited case was decided upon is in pari materia with section 24 (3) of the National Industrial Court Act. He submitted that since the National Industrial Court is a Federal Court, the National Assembly cannot legislate for the State High Court. Therefore the provision of Section 24(3) of the National Industrial Court is inconsistent with the Constitution and to that extent void citing A-G Federation & Ors v Abubakar &Ors [2007] LPELR- SC.31/2007 It was Counsel’s submission that under the High Court of Cross River State (Civil Procedure) Rules, 2008 there is no rule of procedure which enables the Cross River State High Court, to transfer a cause or matter to the National Industrial Court. He argued that the Cross River State House of Assembly has not made any law or provision for the transfer of a cause or matter to the National Industrial Court. He referred to NEPA vs. Mr. Edegnero & 15 Ors [2002] 12 SCNJ 173 @ 186, and submitted that where a court holds that it has no jurisdiction, the proper order to make, is to strike out the suit or proceeding. It does not transfer and cannot transfer. He contended that there being no provision in the Cross River State Civil Procedure Rules, for the transfer of this case, to the National Industrial Court, in the eyes of the Law, there is no suit before the court to be determined. He urged the court to so hold and strike out this suit. He submitted that by Section 11 (2) of the National Industrial Court Act, matters which are part heard before the commencement of the Act shall continue to be determined and any proceedings in any matter which is not determined or concluded at the expiration of one year after the commencement of the Act, shall abate. He argued that the commencement date of the National Industrial Court Act is the 1st day of April 2011 and this suit was filed in the Cross River State High Court in the 12th day of May 2009 while hearing in this matter commenced on the 30th day of April 2012. That as at the time the matter was transferred to this Court on the 17th day of June 2013, the matter was part heard over a period of two year and two months. He submitted that this suit has abated for failure of the suit to be determined or concluded one year after; and that the transfer of this case is contrary to Section 11 (2) of the National Industrial Court Act. He urged the court to find and hold it has no jurisdiction to hear this matter for the reasons given above and uphold the preliminary objection of the 3rd defendant/applicant and strike out the suit. Learned Counsel to the claimant began with a summary of the facts. He stated that the claimant herein on the 12th day of May, 2009 took out a writ of summons at the High Court of Cross River State of Nigeria claiming that his purported redeployment by the defendants to Secondary Education Board without his consent is inconsistent with his contract of service and the Law establishing the 1st defendant. That the suit was litigated to defence stage when the 1st and 2nd defendants filed an application dated 11th July 2012 challenging the jurisdictional competence of the High Court of Cross River State to entertain or deal with the matter having regards to Section 254C (1) (a) of the 1999 Constitution as altered. That after hearing arguments from Counsel with the 3rd defendant not opposing the said application, the matter was accordingly transferred on the 17th day of June, 2013 to the National Industrial Court. He adopted the 3rd defendants issues and submitted one more the issue for determination as follows: “Whether the 3rd defendant/applicant’s application is procedurally assailable before this Honourable Court being a challenge against the decision of the High Court of cross River state of Nigeria delivered on the 17th day of June, 2013. He submitted that the 3rd defendant’s application is legally unsustainable being a challenge of the decision of the Cross River State High Court delivered on the 17th day of June, 2013. He argued that the proper venue to challenge the decision (Ruling or Judgement) of a High Court is the Court of appeal referring to Section 241(1) of the 1999 Nigerian Constitution .That the applicant by this application under reference is asking this Court to sit on appeal over the decision of the High Court of Cross River state delivered on the 17th day of June, 2013 transferring this matter to the National Industrial Court. He submitted that the applicant having chosen the National Industrial Court to challenge the decision of the Cross River State High Court in the guise of jurisdiction, the objection should be dismissed. He referred to the provisions of section 24(3) of National Industrial Court Act 2006 and submitted that it is clear that a Federal High Court or High Court of a State or the Federal Capital Territory Abuja are invested with the power to transfer matters to the National Industrial Court instead of striking out such matters. He submitted that there is no conflict with the provision of the Act and the Constitution. He argued that the operative phrase there is ”any other law” and as such the National Industrial Court Act being a law enacted by the National Assembly can legislate for the exercise of the jurisdiction of the State High Court being a court created in the first instance by the Constitution. He submitted that the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 did not in any way abolish the National Industrial Court Act rather it adopted same by altering section 316 of the principal Act to incorporate same as sub-section 5. The Constitution having granted exclusive jurisdiction to the National industrial Court in labour related matters, the provision of section 24(3) of the National Industrial Act is binding on all courts in Nigeria whether of the State or of the Federation. He submitted that the purport of section 24(3) is to avoid injustice. Counsel submitted that if the suit was struck out by the High Court, it would be caught by the Limitation law and the claimant without any fault of his will suffer a grave injustice citing the decision of the Court of Appeal in Echelunkwo John & 90 others v Igbo Etiti LocalGovt Area (unreported) Appeal No CA/E/261/2011. He referred to section 11(2) of the National Industrial Court Act and submitted that the State High Court is empowered to continue to hear and determine matters which were part heard before the commencement of the Act and such matters when not determined after the expiration of one year shall abate. It was his submission that in such situations, the provisions of section 24 (3) will be applicable. He argued that the word “abate” should be given its literal meaning citing A-G Bayelsa State v A-G Rivers [2006] 28 NSCQR 19, Toriola v Williams [1982] 7 SC 27. He urged the court to dismiss the objection with costs. Replying on point of law, counsel to the defendant submitted that the objection is not an appeal but an issue of jurisdiction which can be raised at anytime citing African Newspapers of Nigeria v FRN [1985] 1 SC 127. He submitted that the 3rd defendant is challenging the justifiability of the provisions of section 24(3) of the NIC Act but not seeking to enforce same. He submitted that Section 24(3) of the National Industrial Court simply states that such Rules of the High Court if made shall by virtue of the section be deemed, that it is only where such rules have been made that it will be deemed referring to Addax Pet Dev (Nig) Ltd v Emef Intl Operations [2012] All FWLR (Pt 621) 1585 at 1588. He submitted that in the case of Echelunkwo John & 90 others v Igbo Etiti Local Govt Area supra there was express provision in the Enugu state High Court Rules for a transfer. He argued that the case of Fasakin Foods (Nig) Ltd v Martins Babatunde Shosanya supra was not brought before the Court of Appeal by counsel in the Echelunkwo John & 90 others v Igbo Etiti Local Govt Area case which would have brought to fore the true legal perspective of the issue in contention.. He submitted that this court is bound by the Supreme Court decision in Fasakin Foods (Nig) Ltd v Martins Babatunde Shosanya. Having considered the submissions of counsel and the authorities cited, I must state at the onset that this matter is before this court through the instrumentality of a transfer order. The reference on this Objection must be to the grounds upon which it is predicated on. This has already been stated above but for ease of reference I will reproduce it: (1) The Cross River State High Court does not have the power to transfer a suit before her from the Cross River State High Court to the National Industrial Court. (2) By Section 11(2) of the National Industrial Court Act 2009, the suit has abated as at the time it was transferred from the Cross River State High Court to the National Industrial Court, Calabar Division. There is before me, accompanying the file from the Cross River State High Court Calabar the instrument of transfer under the seal of the court and the hand of the Judge, Hon. Justice B.T. Ebuta on 27 June 2013. This is the evidence of transfer. The law does not give this court powers to begin to question, enquire into and review the proceedings of the State High Court leading to the transfer of a suit to this court. This is the duty of the Court of Appeal. The National Industrial Court being a Court of co-ordinate jurisdiction with the State High Court cannot sit on appeal over any decision of the State High Court. This is what counsel to the 3rd defendant/objector is asking this court to do by couching the objection as an issue of jurisdiction in the written address in support. Nothing can be further from the truth. The grounds upon which the objection is based and the submissions of Counsel to the objector clearly reveal that this court is being asked to sit on appeal over the transfer order. By not appealing the decision of the High Court to transfer the matter to this court, it appears to me that the 3rd defendant accepted the High Courts decision to transfer the matter. This matter is before this court through the instrumentality of a transfer order from the State High Court pursuant to Section 24 (3) of the National Industrial Court Act 2006. This must be read along with Section 24 (4). Both are reproduced as follows: (3) Notwithstanding anything to the contrary in any enactment or law, no cause or matters shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make rules of court for the purposes of this subsection. (4) Every order of transfer made pursuant to subsections (2) and (3) of this section shall operate as a stay of proceedings before the court which such proceedings are brought or instituted and shall not be subject to appeal. Section 24 (4) prohibits appeal on transfers. I find this objection to be an indirect way of trying to achieve what the Law in section 24 (4) prohibits. The purpose and end result of an appeal against this transfer (if permitted) and this objection would be to prevent the claimant from ventilating his grievances in court and seek redress. There is a valid order of transfer before me. I hold that this court is not deprived of jurisdiction to entertain and determine this matter. I find this motion to be a time wasting exercise which lacks merit. It is hereby dismissed. The matter is to proceed to hearing. Costs of N5,000.00 is awarded in favour of the claimant. Ruling is entered accordingly. --------------------------------------- Hon. Justice O.A.Obaseki-Osaghae. Having considered the submissions of counsel and the authorities cited, the reference on this issue regarding the validity or otherwise of the transfer of this suit from the Federal High Court to this Court must be to Section 24 (3) and (4) of the National Industrial Court Act 2006 reproduced as follows: (3) Notwithstanding anything to the contrary in any enactment or law, no cause or matters shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate Court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make rules of court for the purposes of this subsection. (4) Every order of transfer made pursuant to subsections (2) and (3) of this section shall operate as a stay of proceedings before the court which such proceedings are brought or instituted and shall not be subject to appeal. There is before me, accompanying the file from the Federal High Court Uyo Division the drawn up Order of transfer under the seal of the court and the hand of the Presiding Judge, Hon. Justice J. E. Shakarho on 5th February 2013. This is the evidence of a valid order of transfer. This is what this court is to concern itself with. The law does not give this court powers to begin to question, enquire into and review the proceedings of the Federal High Court leading to the transfer of a suit to this court. The Federal High Court is a court of co-ordinate jurisdiction. This court cannot sit on appeal over a decision of the Federal High Court. This is what counsel to the defendant/applicant is asking this court to do. In any event, folio 198 of the records shows that the motion for relisting was fixed for 17/01/13 by my learned brother Hon. Justice J. E. Shakarho and the case was called on that day as borne out by his notes. I hold that this suit has been validly transferred from the Federal High Court to this court for determination. This court is not deprived of jurisdiction to entertain and determine this matter. I find this motion to be a time wasting exercise which lacks merit. It is hereby dismissed. The matter is to proceed to hearing. Costs of N5,000.00 is awarded in favour of the claimant. Ruling is entered accordingly. --------------------------------------- Hon. Justice O.A.Obaseki-Osaghae. 5.0 ARGUMENT 5.1 As a preliminary point it is considered imperative to commend to my Lord the provision of section 24(3) of the National Industrial Act 2006 which states as follows: “Notwithstanding anything to the contrary in any enactment or law, no cause or the Federal Capital territory, Abuja on the ground that such cause or matter was not brought in the appropriate court in which, it ought to have been brought, the court before who such cause or matter is brought may cause such cause or matter to be transferred to the appropriate judicial division of the court, in accordance with such rules of court as may be in force in that High Court or made under any enactment or Law empowering the making of rules of court generally which enactment or Law shall by virtue of this section be deemed also to include the power to make rules of court for the purpose of this sub-section.” 3.3 My Lord by Section 24(3) of the Act cited supra, it states that “notwithstanding anything to the contrary in any enactment or law, no cause of action shall be struck out by the Federal High Court or the High Court of the State or the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate court in which it ought to have been brought and the court before whom such cause or matter is brought may cause such or matter to be transferred to the appropriate judicial division of the court in accordance with such rules of court as may be in force in the High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall be by virtue of the subsection be deemed also to include the power to make rules of court for the purposes of this subsection” 3.5 For purposes of emphasis, and with your kind permission, My Lord, I quote Section 274 of the 1999 Constitution, it states, “The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any Law accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of assembly of the State”.