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Before Their Lordships: Hon. Justice B.B. Kanyip - Presiding Judge Hon. Justice V.N Okobi - Judge Hon. Justice F.I Kola-Olalere - Judge Hon. Justice O.A Obaseki Osaghae - Judge Hon. Justice J.T. Aghadu-Fishim - Judge Date: April 2, 2009 Suit No. NIC/57/2008 BETWEEN Lasisi Gbadegesin - Claimant/Respondent AND Wema Bank Plc - Defendant/Applicant REPRESENTAT I ON K. Salawu Esq., for the claimant. Bolanle Akingunola, for the defendant RULING The claimant/respondent instituted this action against the defendant/applicant by way of a complaint claiming the following- a. A DECLARATION that the purported indefinite suspension of’ the claimant contained in the defendant’s letter of 5th September, 2008 is wrongful, null and Void and of no effect whatsoever. b. AN ORDER setting aside the said purported suspension of the claimant and reinstating him as a bonafide staff of the defendant. c. AN ORDER directing the defendant to pay the outstanding salaries and allowances of the claimant forthwith. d. AN ORDER of perpetual injunction restraining the defendant whether by its agents, privies and servants from acting on the contents of the said letter of suspension of the claimant in any manner whatsoever. Upon receipt of the complaint and all other processes connected to it, the defendant/applicant reacted by filing a preliminary objection dated and filed on 30th October, 2008 challenging the jurisdiction of this court to handle the matter. The grounds upon which the preliminary objection is based are — 1. That this court has no jurisdiction to entertain the suit which is essentially a contract of employment and not a labour related matter. 2. That the claimant lacks the locus standi to enforce the provision of a collective agreement that was entered into by the employer’s union and the employees’ union. The defendant/applicant then urged the court to strike out or dismiss the suit. The defendant/applicant, however, made it clear that at the hearing of the preliminary objection, he will be relying on the General Form of Complaint, Statement of Facts and other processes filed by the claimants. In support of the preliminary Objection is a 9-paragraphed affidavit sworn to by Bolanle Akingunola, a legal practitioner in the firm of Bayo Osipitan & Co., counsel to the defendant. Counsel in the matter agreed to argue the preliminary objection on record. In consequence, counsel filed written addresses. The written address of the defendant/applicant is dated and on 14 November, 2008. That of the claimant/respondent is dated 25 November, 2008 but on filed 28th November, 2008. The reply on points of law is dated 9th January, 2009 but filed on …January, 2009. The defendant/applicant’s written address on the preliminary objection, counsel to the defendant/applicant pointed out that the chat claimant/respondent is an employee of the defendant/applicant who was suspended indefinitely from work and who as a result of his dissatisfaction instituted this act ion against it. To the counsel, from the facts of this case, there is an employer/employee relationship between the parties and that the claimant/respondents employment is devoid of statutory flavour. The counsel pointed out that the claimant/respondent was suspended to enable the defendant investigate the allegation of misconduct against that in paragraphs 13 of the statement of facts, the claimant/respondent pleaded that his suspension was not in accordance with the parties’ collective agreement. Counsel submitted that the respondent/applicant’s action complained about is purely that of a owner/servant relationship which is not within the jurisdiction of this court. They asserted that court’s jurisdiction is essentially on labour matters and not on ordinary employer/employee or owner/servant relationship; else, this court will be bogged down with many of such cases…. those on wrongful termination of employment or outright dismissal of employees from employment. And that that is not the intention of the framers of National Industrial Court 2006. Counsel went on to submit that this court is designed to cater for labour, industrial disputes and trade union activities. That this court is not a court with general jurisdiction on contract of employment. Counsel then submitted that the claimant/respondent’s statement of facts is within the scope of section 7 of the National Industrial Court Act 2006. Counsel subsequently urged the court to decline jurisdiction because labour, trade union or industrial dispute and industrial relation matters are separated and distinct from contract of employment between employer and employee. That while the former is within the jurisdiction of this court the latter is certainly outside the court’s jurisdiction. The enforcement of the collective agreement, counsel pointed out that it was the content of this collective agreement that forms the basis for this action especially going by the claimant/respondent’s statement of fact. That the claimant/respondent relied on article 4(iii) of the statement. In other words, that it is the alleged breach of that article that formed the cause of…. in this matter. Counsel then submitted (that neither of the two parties before the court is …. party to that agreement; as a result, neither of them can enforce it. Furthermore, that there is no privity of contract between the parties that entered into the collective agreement present parties before the court. Consequently the agreement cannot be forced on the defendant/applicant by the claimant/respondent. Counsel contended further that the agreement can only be enforced by or against the Nigeria Employers Association of Banks, Insurance and Institutions (NEABIAI) and the Association of Senior Staff of Banks, insurance and other Financial institutions (ASSBIFI) who are contracting parties to the said collective agreement. Counsel then submitted that it is trite law that only parties to a contract can enforce or be saddled with terms of contract. Counsel relied on the following authorities: UBN Ltd v. Edet [1993] NWLR (Pt.287) 288 at 289 G-H, Makwe V. Nwukor [2001] 14 NWLR (Pt. 733) at 372 B- F, Nigeria-Arab Bank Ltd v. Shuaibu [1991] 4 NWLR (Pt. 186) at 469 A - B Counsel went on to submit that re-instatement is not a remedy in cases of pure master/servant relationship, citing NlTEL Plc v. Akwe [2006] 2 NWLR (Pt. 964) at 417 E-F and Isievwore V. NEPA [2002] 13 NWLR. (Pt. 784) at 434 A — C and 434 —435 G-H Counsel consequently urged the Court to strike out the suit because the proper court to enforce the collective agreement is the State High Court. The claimant/respondent filed and adopted his written address in reaction to the defendant/applicant’s written address on the preliminary objection. The claimant/respondent contended that the issue for determination is whether this Court has jurisdiction to entertain this suit. To the claimant/respondent, this court has unfettered jurisdiction to entertain this action because it is a labour matter pursuant to section 7 of the National Industrial Court Act 2006. He argued that this section must be given its ordinary meaning because it is unambiguous; that doing otherwise will be tantamount to an importation of words against the intent and meaning of the statutory provisions, referring the court to Egbe v.Alhaji and ors [1990] 1 NWLR (Pt. 128) 546 at 581, PDP v. INEC [1999] 11 NWLR (Pt. 626) 200 at 276, NBN Ltd v. Weide & Co. Nig. Ltd [1996] 8 NWLR (Pt. 465) and Auka v. Lokoja [2001] 16 WRN 111 at 132. The claimant/respondent then submitted that this court’s jurisdiction on labour matters includes relationship between workers and employers. That although the Act did not define labour, it defines trade dispute to mean a dispute between an employer and employee on issues of employment or non—employment of the employee or dispute arising from the interpretation of the terms and conditions of the employment, referring to section 54 of time National Industrial Court Act 2006. The claimant/respondent stated that his relief stem out of the interpretation of the terms and conditions of the employment; that is, whether the defendant/applicant was in breach when it suspended him indefinitely without pay. He maintained that this issue comes within section 7 of the National Industrial Court Act 2006 and then urged time court to discountenance the vague attempt by the defendant/applicant at distinguishing a master/servant relationship from labour related matters. That doing otherwise will lead to absurdity. He contended that the cradle or foundation of every labour matter is the contract of employment between the master (the employer) on one hand and the servant (the employee) on the other; hence the appellant’s argument is a violent mutilation of the statute. He referred the court to Dauda v. UBA [2004] 9 NWLR (Pt. 878) at 292 — 293. On the issue of enforceability of the collective agreement, the claimant/respondent submitted that that can only be determined after evidence has been led and trial concluded, referring to Emmanuel Nwobosi v. ACB Ltd. [1995] 6 NWLR (Pt. 404) 658. That in that case, regarding the issue whether a collective agreement was binding on the parties, the court held that it depends on whether the agreement was incorporated in the contract of service, the state of the pleadings, the evidence before the court and the conduct of the parties. He also referred to UBA Ltd v. E. E. Edet, supra, ACB Plc v. Nwodika, supra, Dr. Ben Chukwuma v. ,Shell Petroleum Development Co. of Nig. Ltd [1993] 4 NWLR (Pt. 289) 512. The claimant then submitted that since no evidence has been led on the collective agreement all argument on the issue is premature and irrelevant. He then urged the court to discountenance it and, therefore, dismiss the preliminary objection as same was misconceived, erroneous in law and lacks merit. Replying on points of law, the defendant/applicant submitted that section 7 of the National Industrial Court Act 2006 confers jurisdiction on this court in relation to labour/industrial related disputes as opposed to ordinary employer/employee relationship. That the section does not confer jurisdiction on the court to entertain disputes between employer/employee on issue of terms and conditions of contract of employment. That to interpret otherwise would lead to an oppressive verdict. That contrary to the claimant/respondent’s paragraph 3-5 of their reply, the appellant/respondent sought for the interpretation of the terms and conditions of his employment with the defendant/respondent. That what he is seeking for is the enforcement of the collective agreement through all the declaratory reliefs sought. Therefore, that the court cannot be the interpretative jurisdiction in such instance. The respondent/applicant then urged the court to discountenance the respondent’s attempt to enlarge section 7 of the National Industrial Court 2006 beyond the scope intended by its Framers. That neither of the parties in court is a party to the…collective agreement and so neither of them can enforce it nor have the agreement forced against him/her since there is no privity of contract between them and the unions that … into the collective agreement. For the respondent/applicant, there is no principle of law to the effect that enforceability or otherwise of a collective agreement can only be determined after evidence has been led and trial concluded. That at least, this was not so decided in ACB Plc. v. Nwodike cited by the appellant/respondent. That the court in that case only highlighted factors that will determine … a collective agreement is binding on individual employees/employers; so also are the decisions in Dr. Ben Chukwumah v. Shell Petroleum Development Co. of Nig. Ltd. And UBA Ltd v. E.E Edet all supra. The defendant/applicant contented that to determine the preliminary decision, the claimant/respondent would be bound by their claims, referring to UTB (Nig.) Ltd v. Sule [2006] 2 NWLR (Pt. 965) 490 F-H and Baba Iya v. Sikeli [2006] 3 NWLR (Pt.968). That without pleading the collective agreement as an integral part of the contract, they adduce any evidence of such. The defendant/applicant then urged the court to dismiss the appelant/respondent action and uphold the preliminary objection. We carefully considered the issues raised in the preliminary objection, including authorities for and against by counsel to the two parties. In the record we noticed that the defendant/applicant’s counsel who signed the written address to preliminary objection is also the same counsel who deposed to the affidavit in support of the preliminary objection. A practice such as this is not tidy given the conflict of interest that may arise should the necessity of putting the deponent in the witness box arise. If counsel feels … that a legal practitioner must depose to the affidavit, then that legal practitioner should not be the one prosecuting the matter. It has to be another counsel in the chambers. Counsel may be reminded to take note of this. … to point out that generally, when this Court is called upon to decide on the enforceability of the collective agreement, we would first of all have to interpret the said agreement before making any pronouncement on its enforceability. But that will have to be at the trial and not at the preliminary … this one. This is, however, without prejudice to the fact that the court’s interpretation can be activated under section 7(1)(c)(i) of the National Industrial Court Act 2006, and incidentally is not the issue in the instant case. In the instant case, the court has simply been compelled upon to apply/enforce the collective agreement in issue. This is evident, for instance, in paragraph 13 of the claimant/respondent’s statement of facts, which provides as follows – the said indefinite suspension without pay is not in accordance with the provisions of the staff conditions and the Procedural and main collective Agreement. The claimant hereby pleads the Procedural and Main collective Agreement and shall rely on it at the trial. From the content of that paragraph we are of the considered view that the claimant/respondent is testing the court to interpret the collective agreement he referred to in his statement of facts and so his action is not covered by section 7(1)(c)(i) of the National Industrial Court Act 2006. The defendant/applicant argued that the two parties before the court cannot enforce the collective agreement pleaded by the claimant/respondent because neither of them was a party to the making of the said agreement. That the parties who have such a right are the two unions that entered into or signed the collective agreement. In his reaction, the claimant/respondent submitted in paragraph 3.8 of his written reply to the preliminary objection that- The Supreme Court of Nigeria in the case of Emmanuel Nwobosi v. ACB Ltd [1995] 6 NWLR (Pt. 404) 658, which is of similar facts with the case at hand, stated thus: the position in law as regards collective agreements a fortiori exh. E is whether they are binding on individual employees and employer depends on a number of factors such as their incorporation into the contract of service if one exist, the state of the pleadings, the evidence before the court and the conduct of the parties. We went through this cited authority but we could not find the holding attributed to it. The cited case is, therefore, not of any assistance to us in taking a decision on this matter. Be that as it may, given that the present action is not one that is activating the interpretation jurisdiction of this court, the question as to who can enforce the collective agreement at hand is one that can only be raised as a defence to the substantive matter at hand. It is premature to raise it as an issue of preliminary objection, in the same vein, arguments of the respondent/applicant as to whether or not the remedy of reinstatement is available in the instant case is again premature as it can only be raised as a defence. We, therefore agree with the claimant/respondent that we cannot decide on the alternative prayer of the defendant/applicant that the claimant/respondent lacks the locus standi to enforce the provision of the collective agreement at this preliminary stage. That issue can only be decided at the trial of the substantive matter. The defendant/applicant in the main raised this preliminary objection on the ground that this court has no jurisdiction to entertain the suit because the dispute between the parties is that of a contract of employment and not a labour related matter. They contended that the court’s jurisdiction is essentially on labour matters and not on ordinary employer/employee or master/servant relationship. It is trite law that the jurisdiction of this court is derived from section 7(l) of the National Industrial, Court Act 2006. In particular, section 7(1)(a)(i) and (ii) of time National Industrial Court Act 2006 as apposite and it 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 thereto. We do not agree with the view of the defendant/applicant as to the scope of the jurisdiction of the court when it cited section 54 of the National Industrial Court Act. Section 54 defines trade dispute to include “any dispute between employers and employees... connected with the employment or non-employment of any person”. It is cautious that despite this definition, the defendant/applicant would still submit that the relationship between the parties is not one that is labour related so as to bring it within the purview of section 7(1) of the National Industrial Court Act. We hereby hold that the issues between the parties is a labour matter within the context of section 7(1) of the National Industrial Court Act. We, therefore, agree with the claimant/respondent and hold that this court has jurisdiction to determine the matter at hand. The claimant can access the Court without the necessity of having to go through the process of Part 1 of the Trade Disputes Act Cap. 432 LFN 1990 given that the claimant is suing as an individual and not through the instrumentality of a union as we have held in several eases such as Aloysius Odocha v. Alan Dick & Company, (West Africa) Ltd, unreported Suit No. NIC/58/2007, the ruling of which was delivered on November 26, 2008. The claimant/respondent’s claims, which have to do with the vacation of his suspension order and payment of all his accumulated emoluments, relates to his employment. They are labour issues under section 7(1) of the NIC Act. We, therefore have no reason to depat from the decision in Aloysius Odocha’s case. We hold that the claimant/respondent can access this court directly for his claims. See also our recent ruling in Olabode Ogunyale & 64 ors v. Globacom Nig. Ltd unreported Suit No. NIC/30/2008 delivered on Wednesday 11th March, 2009. For all the reasons given, we hereby hold that this Court has jurisdiction to entertain this matter because all the claimant/respondent’s claims comes within the purview of section 7(l) of the National Industrial Court Act. 2006. The preliminary objection lacks merit and is hereby dismissed. 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