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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS Hon. On. Justice B. B. Kanyip -Presiding Judge Hon. Justice V. N. Okobi -Judge Hon. Justice L. 1. Kola-Olalere -Judge Hon. Justice O. A. Obaseki-Osaghae -Judge Hon. Justice J. T. Agbadu-Fishim -Judge DATED: November 10, 2009 SUIT NO: NIC/73/2008 BETWEEN Robert Ademu - Claimant AND Nigerian Security Printing and Minting Company Plc - Respondent REPRESENTATION Mohammed A. Adamu, for the claimant Prince H. I. O. Oshomah, lor the respondents with him Momodu Aliu RULING The claimant had taken a complaint against the respondent dated 24:h October 2UOX praying the Court for the following orders - 1 A declaration that the termination of the claimant's appointment is contrary to his contract of employment, unlawful, illegal and, therefore, null and void. 2 An order of court reinstating the claimant to his duty post and his appropriate rank of Assistant Manager (S 3/1) effective from the 20lh October 2008 be conferred on him. 3 An order that all salaries, emoluments and other benefits of the claimant be paid from October 2008 to the date of the reinstatement and or determination of this suit. 4 An order of perpetual injunction, restraining the defendant from harassing, intimidating or terminating the appointment of the claimant except with regard to the due process of law and in accordance with his contract of employment. 5. Special damages of N1,156, 249.46 broken down as follows: (a) Basic salary for the month of October - N 40,242.25 Transport allowance - N23,157.50 Hazard allowance - N 1,300.00 Utility allowance - N 3,070.17 Laundry - N 455.00 Meal subsidy ' - N 16,965.00 - Total N 85,189.92 b) Accrued Gratuity - N285,465.34 c) Personal Pension Contribution - N785,594.20 6. General damages for breach of employment contract and living wages to the sum of N 1,000,000.00. 7. The cost of this litigation is put at 14,500,000.00 and such further orders as this Court may deem fit to make it in the circumstance. Accompanying the complaint is a 33-paragraphed Statement of Facts and List of Exhibits to be relied upon, namely - 1. Claimant's appointment letter dated 22nd December, 2000. 2. Copy of claimants' employee hand book. 3. Copy ofclaimant's confirmation letter dated 15lh July 2002. 4. Copy of claimant's promotion/movement letter dated 15lh February 2008. 5. Copy ofclaimant's employee statement and final benefit dated 10lh September 2008. 6. Copy ofclaimant's September 2008 salary pay slip. 7. Copy ofclaimant's letter of invitation to appear before disciplinary committee dated 1 5lh September 2008. 8. Copy ofclaimant's termination letter dated 16th October 2008. The respondent filed a 14-paragraphed statement of defence dated 5th February 2009 but filed 6lh February 2009 and denying each and every allegation of facts contained in the claimant's statement of claim. In its paragraph 1 the defendant vehemently and unequivocally denied the averments contained in paragraphs 3, 9, 10, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, and 31 of the claimants statement of claim as same are issues of lies and contains no element of truth at all. The claimant on 10lh February 2008 filed their reply to the respondent's statement of defence dated 5lh February 2009. However, the claimant filed a motion on notice brought pursuant to Order 28 Rules 1, 2 and 3 of the National Industrial Court Rules 2007, section 24 of the National Industrial Court Act 2006, sections 36, 251(l)(p), (q) and (r) of the 1999 Constitution and under the inherent jurisdiction of this Court dated 301'1 day of April 2009 but filed on 7lh May 2009 praying the court for the following orders — 1. An order of the Court transferring this suit to the Lagos Judicial Division of the Federal High Court. 2. And for such further order or orders as the court may deem fit to make in the circumstance. The Grounds for the application are - 1. That there is need for the Court to transfer this matter to the Federal High Court for reason of jurisdiction and in the interest of justice. 2. That the respondent is an agency of the Federal Government of Nigeria hence the need for the matter to be transferred to the Federal High Court. This motion on notice is supported by a six-paragraphed affidavit deposed to by Mr. Robert Adema, the claimant. The claimant deposed to the fact that there is need for this suit to be transferred to the Federal High Court and that the grant of this application will not prejudice the respondent in any way. He deposed also that it will be in the interest of justice to grant the claimant's prayers. Both counsel had agreed to submit and adopt written addresses in support of the motion on notice to transfer the suit to the Federal High Court. At the court's sitting of 7th May 2009, the respondent did not object to the claimant's prayer to file the motion for transfer of the case to the Federal High Court together with the accompanying written address. The court informed the respondent that it was at liberty to react to the said motion by filing a written address too. At the court's sitting of I41'1 July 2009, counsel to the claimant moved his motion dated 301'1 April, 2009 praying for an order to transfer this suit to the Federal High Court. Counsel also adopted his written address dated 13lh May 2009 and urged the court to grant the claimant's prayers. Counsel to the respondent, Momodu Aliu, who was present in court said that the respondent would not be opposing the motion for transfer. The respondent did not, therefore, seee any written address against the motion for transfer. In the claimant's written address, the claimant reiterated his claims as per the statement of facts. The claimant then cited jurisdiction as the principal ground for the motion for transfer, the respondent being an agency of the Federal Government; relying on constitutional provisions and case laws. To the claimant, the issues for determination are - (i) whether the respondent Nigeria Security Printing and Minting Plc is an agency of the Federal Government and if yes, which court has the jurisdiction to the exclusion of any other court in civil causes and matters relating to the administration or management and control of such agency? (ii) whether by constitutional provisions, the National Industrial Court has the jurisdiction to entertain and determine any action or proceedings for declaration or injunction affecting the validity of any administrative action or decision by any Federal Government agency? (iii) whether in the circumstances of this case, the National Industrial Court has the power to transfer this suit to the Federal High Court. In arguing the issues, the claimant submitted that in determining the above formulated issues it would be best if issues 1 & 2 raised above are dealt with together due to the constitutional interpretation inherent thereof. He further submitted that the respondent (Nigeria Security, Printing and Minting Plc) is an agency of the Federal Government. Hence by constitutional arrangement the respondent as well as members of its staff form part of the public service of the Federation. That the respondent in particular is an agency of the Federal Government as it owns controlling shares, referring the court to section 318(l)(c), (g) of the 1999 Constitution and Adekoye v. NSPMC Lid [2009J 5 NWLR (Pt. 1134) at 341 F - G; [2009] Vol. 2 MJSC (Pt. 1) 74 A - B. On exclusive jurisdiction of the Federal High Court over civil causes and matters involving Federal Government agencies, the claimant submitted that the respondent, being an agency of the Federal Government, it is, therefore, only the Federal High Court that has exclusive jurisdiction to determine the dispute concerning the administrative management and control of Federal Government agencies most especially the claimant's claim as stated in this suit as against the respondent. The claimant referred the court to the following cases NEPA v. Edgegbero [2002J 18 NWLR (Pt. 789) 78 and Adekoye v. NSPM (supra) para. F G. Citing section 251(l)(p), (q), (r) and (s) of the 1999 Constitution, the claimant submitted that on the above constitutional provisions it is only the Federal High Court that has the exclusive jurisdiction to entertain matters involving the respondent, he cited the case of Adekoye v. NSPMC Ltd [2009] 5 NWLR (Pt. 1134) at 339 - 340 G - H. That once a statute has prescribed that certain steps should be taken and how it should be done, such a step remains the only valid one and no other step should be taken, referring to Amaechi v. INEC [2008] 1 MJSC 192, UNTHMBN v. Nnoli |1994| 8 NWLR (Pt. 363) 404 and Kamba v. Bawa [2005] 4 NWLR (Pt.. 914) 43. He continued that since the Constitution, which is the grund norm, has conferred such exclusive jurisdiction on the Federal High Court, so shall it be as far as the Constitution and its provisions are still in force. That any act done in variance to the constitutional provisions becomes void and a nullity, referring to section 1(3) of the 1999 Constitution and the cases of UAC v. Macfoy [1961] 3 WLR 1405 at 1409 and Sken Consult (Nig.) Ltd and anor v. Godwin Ukey [1981J 1 SC at 6. To the claimant, competency of this suit is based on labour matters such as the claimant's claim on unlawful termination (labour matters), claim for damages, prayer for injunction is within the jurisdiction of this court by virtue of section 7(l)(a)(i), 1(2). 1 l(i). 19(b), (d) and section 20 of National Industrial Court Act 2006. He concluded that in as much as the National Industrial Court Act 2006 confers such jurisdiction on the National Industrial Court and the respondent (Nigerian Security Printing & Minting Plc) an agency of the Federal Government in which the Federal Government has controlling shares, considering the status of the respondent, it therefore involves constitutional interpretation and the application of the National Industrial Court Act 2006 in determining whether the National Industrial Court have jurisdiction to entertain the matter. However, that the Constitution confers exclusive jurisdiction on the Federal High Court in mailers relating to the operations of a Federal Government agency; as such, anything done outside the provisions of the Constitution is void and, therefore, becomes a nullity, citing section 1(3) of the 1999 Constitution, which provides that it any other law is inconsistent with the provision of the Constitution, then the Constitution shall prevail and that law shall to the extent of the inconsistency be void. That the Supreme court held in Adekove v. NSPMC Ltd (supra] that the provisions of the Constitution are supreme over any other provisions law or Act of the National Assembly. The claimant then submitted that the provisions of the Constitution shall override those of the National Industrial Court Act thereby robbing the National Industrial Court of the jurisdiction to entertain the matter involving the respondent. As to whether the National Industrial Court has the power to transfer this case to the Federal High Court, the claimant submitted that the National Industrial Court is a competent court of record in Nigeria and it has the power to either suo moto or on application of either party to a suit, at any stage of the proceedings in any cause or matter before final judgment, to transfer such matter before the court or to any other panel of judges (section 24(1) of the National Industrial Court Act 2006). That by section 24(2) of the National Industrial Court Act 2006 this court has the power to transfer this matter to the Federal High Court without the matter being struck out merely for the reason that the matter was first instituted before this court instead of Federal High Court in accordance with the Rules of court made under section 36 of National Industrial Court Act. The claimant then prayed the court to make an order for the transfer of this matter to the Federal High Court in accordance with section 24(2) of the National Industrial Court Act 2006 and by virtue of section 36(1 )(a) and (2) of the National Industrial Court Act 2006 in the interest of justice. The claimant further submitted that by virtue of Order 28 Rules 1, 2 and 3 of the National Industrial Court Rules 2007 the appropriate order to be made by this court is to transfer the matter to the Federal High Court and also outlining the procedure to effect the transfer. The claimant then pleaded that it will be in the interest of justice for the court to save the life of this suit or matter by transferring same to the Federal High Court, relying on the Supreme Court decision in the case of Matinja v. Milad Plateau State | 1998] 9 NWLR (Pt.567) at 694 where it was held thus - Where a court is faced with two conflicting applications, one seeking to dismiss the case and the other seeking to regularize and preserve the case, the interest of justice demands that the application, the determination of which would preserve the case, should be heard first. He also referred the court to pages 182 - 183 of the book titled, Practice and Procedure in Civil Matters in Nigeria by Sonia Akinbiyi 1st Edition 2008 and the pronouncement of Odili, JCA in the case of Adedigba v. Okwu [2005] 42 WRN 38. On the issue of jurisdiction which the application bothers on. the claimant referred the court to the time-honoured case of Madukolu v. Nkemdilim [1962] 2 SCNLR and also the decision of the supreme court in the case of Mobil Production Nig. Ltd and anor v. Chief Simeon Monokpo and ors |2003| 12 NSCR 298 E - C, where Tobi, JSC held that the law is elementary that a party cannot or has not the competence to waive lack of jurisdiction of the court. Where a court lacks jurisdiction, the entire proceedings however well conducted are a nullity and a party cannot in law resuscitate or revive a nullity by waiver. Jurisdiction is basic to the entire adjudication. It affects the power of the court to adjudicate on the matter. Where a court lacks jurisdiction, no amount of indolent conduct on the part of any of the parties, particularly the defendant, can ripen into the defence of waiver. It is my view that jurisdiction of a court where there is none, cannot be enlarged by estoppel or waiver. Jurisdiction being the forerunner of the judicial process cannot by acquiescence, collusion, compromise or as in this case waiver, confer jurisdiction on a court that lacks it. Parties do not have the legal right to donate jurisdiction on a court that lacks it. Finally, counsel to the claimants urged the court to transfer the suit to the Federal High Court in the interest of justice. The respondent's counsel had earlier informed the court that they have no objection to the claimant's application to transfer the suit to the Federal High Court. Before addressing the issue before us, we must remark on the approach adopted by counsel to the claimant regarding this application for transfer of the case to the Federal High Court. It is counsel to the claimant who filed this action in this court asking that this court should look into the matter and make a determination of the issues brought before it. We are lost at the sudden-turn by counsel that this court has no jurisdiction to entertain the matter and so the case should be transferred to the Federal High Court. If counsel sincerely believed that this court has no jurisdiction, we wonder why counsel did not pursue the option of withdrawing the suit and filing a fresh one before the court of competent jurisdiction. The style of advocacy adopted by counsel in first rushing to court before considering which court actually has jurisdiction does not speak well of that kind of advocacy irrespective of the outcome of the court's verdict on the application before it. This remark made, we now turn to the main issue before us. But first we must point out that there is no doubt whatsoever that under section 24 of the National Industrial Court Act 2006, this court has the power to transfer a case before it to the appropriate High Court if the court is of the opinion that it does not have jurisdiction to hear and determine the matter. This means that that the main issue before the court in this application is not the question of transfer of the matter to the federal High Court but whether the matter comes within the jurisdiction of this court. The jurisdiction section of the National Industrial Court Act 2006 is section 7. Section 7(1 )(a), which is relevant for present purposes, provides as follows — 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. As reproduced earlier, the claims of the claimant relate to the following – (i) Termination of the claimant's appointment contrary to his contract of employment which according to him is unlawful, illegal and therefore null and void, (ii) Reinstatement, payment of all salaries, emoluments and other benefits, (iii) Restraining the respondents from harassing, intimidating or terminating the appointment in except with regard to due process of law and in accordance with his contract of employment, (iv) Special damages in relation to basic salary, transport allowance and other perquisites of employment. The question then is whether these claims are matters of labour or matters incidental thereto within the context of section 7(l)(a) of the National Industrial Court Act 2006. We think so. When the Supreme Court decided the case of Oloruntoba-Oju v. Dopamu [2008] 7 NWLR (Ft. 10X5) 1, the cause of action of which arose before the coining into effect of section 7 of the National Industrial Court Act 2006, it was emphatic that in so far as the main cause of action relates to issues under section 251(l)(q), (r) and (s) of the 19W Constitution, jurisdiction would lie in the federal High Court; and it will not matter if there are employment issues incidental to the main cause of action. Where the main cause of action relates to employment matters, we must presume then that this court will have jurisdiction. The Supreme Court itself appeared to provide the necessary qualification when it held that it would take a more specific provision of Cap. 432 and not just an interpretation clause to have such a far reaching effect (our emphasis). In any event, the jurisdiction of the Federal High Court under section 251 of the 1999 Constitution generally follows the items in the Exclusive Legislative List in the Second Schedule to the 1999 Constitution except for item 34 (dealing with labour and industrial relations and matters incidental thereto), which is conspicuously absent. Section 7(1 )(a) of the National Industrial Court Act 2006, on the other hand, is a reproduction of the said item 34 of the Exclusive Legislative List. With this in mind, does it suggest that the legislature intends any court other than the National Industrial Court to entertain employment matters given that they are subsumed within the purview of labour, or at worse are matters incidental thereto'/ liven when the Supreme Court noted in Oloruntoba-Oju v. Dopamu that an existing law under section 315 of the 1999 Constitution cannot override section 251 of the Constitution, the point remains that section 7 of the National Industrial Court Act 2006 makes provision in respect of matters that are not provided for in section 251 of the Constitution. So the claim of the claimant that this court has no jurisdiction cannot he tenable. In our opinion, therefore, the claims of the claimants are matters within the jurisdielional competence of this court. We consequently rule that this court has the jurisdiction to hear and entertain the instant suit. The prayer of the claimant that the case be transferred to the Federal High Court lacks merit and so is hereby denied. We make no order as to cost. Ruling is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Hon. Justice F. I. Kola-Olalere Judge Judge Hon Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge