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The claimant took up a complaint against the defendant dated and filed on 13th June 2013 praying for – 1. The sum of N2,460,000.00 (Two Million Four Hundred and Sixty Thousand Naira) only, being outstanding sum illegally deducted from the claimant’s monthly salary for 41 months. 2. Interest on the aforesaid sum of N2,460,000.00 (Two Million Four Hundred and Sixty Thousand Naira) only at the rate of 25% per annum with effect from 31st March 2013 till judgment is delivered in this suit. 3. Post judgment interest on the said sum at the rate of 25% per annum till the judgment debt is liquidated. Accompanying the complaint are the statement of facts, list of witnesses, witness statement on oath, list of documents to be relied on at the trial and copies of the documents. In reaction, the defendant entered appearance by filing its memorandum of appearance. It then filed a preliminary objection dated and filed on 5th August 2013. In support of the preliminary objection are an affidavit with 6 exhibits attached and a written address. By the preliminary objection, the defendant is praying for – (1) An order of this Honourable Court, upholding the arbitration clause as a term of the offer of appointment dated 29th September 2008 executed between the claimant and the defendant and that the failure and or refusal of the claimant/respondent to first submit the dispute in this suit to arbitration before filing it before this Court deprives this Honourable Court of the requisite jurisdiction to entertain this suit. (2) (i) An order dismissing/striking out the claimant/respondent’s suit for want of jurisdiction. OR IN THE ALTERNATIVE (ii) An order of this Honourable Court referring the suit to arbitration and staying the proceedings hereby pending the hearing and determination of the dispute by arbitration; and (3) Such further or other order/s as this Honourable Court may deem fit to make in the circumstances of this suit. To the defendant, the grounds upon which the preliminary objection is brought in addition to those contained in the accompanying affidavit are as follows – (a) By virtue of clause 9(D)(i) of the offer of appointment (claimant’s employment contract) duly executed between the claimant/respondent and the defendant/applicant, all disputes arising out of the employment contract are to be resolved by mutual discussion and or arbitration. As such, a party thereto can only bring an action in Court after resolution of the dispute by arbitration had failed. (b) Section 2 of the Arbitration and Conciliation Act 2004 provides that unless a contrary intention is expressed therein, an arbitration agreement shall be irrevocable except by agreement of the parties or by leave of the Court or a judge. As such, the applicant and the respondent are bound by the provision of clause 9(D)(i) which is statutorily irrevocable. (c) It is trite law that where there is a condition precedent to institution of a suit, such as the requirement of arbitration in the instant case, failure to first satisfy that condition precedent before filing a suit, amounts to jumping the gun and thereby robs the Court of the jurisdiction to adjudicate thereupon. (d) This application is brought in good faith and in the interest of justice. The claimant reacted by filing a counter-affidavit and written address, all dated and filed on 21st February 2014. The defendant gave a summary of the facts of the case. To the defendant, the claimant worked in the defendant’s establishment for over four (4) years during which his performance was repeatedly adjudged to be poor and far below the defendant’s expectation. That his poor performance among others, was found to have combined with and or enabled the recent global recession to creep into the defendant’s business operation sometimes in 2009. The defendant thereon found itself in circumstances that necessitated certain changes in its operating policies including termination of the claimant’s employment. However, rather than dismissing the claimant, the defendant offered to the claimants and the claimant accepted an option for a reduced salary. The parties mutually agreed on the latter option whereby the claimant continued to work with the defendant and earned a salary, which was reviewed downward from N200,000.00 (Two Hundred Thousand Naira) only to N140,000.00 (One Hundred and Forty Thousand Naira) only monthly. This arrangement was done and implemented without amending the claimant’s employment contract. That the defendant eventually terminated the claimant’s employment. The claimant subsequently appealed to the defendant to allow him to disengage from the defendant’s employment by resignation rather than by the termination of his employment. The defendant granted the request and paid his terminal benefits. That in contrast to the mutual agreement and conduct of the parties (whereby they waived the requirement of altering the employment contract in writing), from which the claimant had derived benefits for several years, the claimant has now turned around to accuse the defendant of illegally deducting the sum of money which was the differential of his emolument after a mutually acceptable downward review. The defendant went on that upon its receipt of a demand letter (Exhibit AM5) from the claimant’s solicitor, the defendant instructed its counsel, to respond to the letter giving detailed particulars, explanation and advice. The defendant then looked forward to likely further discussions and or correspondence with the claimant, in line with their agreement. That the defendant was, therefore, surprised to receive the originating processes of this Court whereby the claimant instituted this suit against it without any recourse to any meaningful discussion or arbitration as contained in the claimant’s employment contract. The defendant then framed two issues for the determination of the Court, namely – 1. Whether this Court is not bound to uphold the arbitration agreement between the parties, as contained in clause 9(D)(i) of the Offer of Appointment (the employment contract). 2. Whether the claimant’s failure to observe the requirement of clause 9(D)(i) of his agreement with the defendant, as a condition precedent, has not robbed this Court of the jurisdiction to entertain this suit, as yet. Regarding issue 1, the defendant submitted that the relationship of employer and employee that existed between the parties to this suit was governed by the defendant’s letter of offer of appointment which was accepted by the claimant and dated 29th September 2008. Clause 9(D)(i) of the said offer of appointment provides inter alia that – Agreement 1. Both parties will at all times endeavour to resolve differences through mutual discussion and/or arbitration. Thus, that the parties to this suit had an agreement to explore negotiations and arbitration to resolve their differences. The defendant referred to section 2 of the Arbitration and Conciliation Act 2004, which states as follows – Unless a contrary intention is expressed therein, an arbitration agreement shall be irrevocable except by agreement of the parties or by leave of the court or a judge. To the defendant he parties to this suit have not in any way agreed to revoke the arbitration clause of their agreement. That the claimant also did not obtain any prior leave of this Court to revoke the clause. The arbitration agreement is, therefore, valid and subsisting as an agreement of the parties as far as the resolution of disputes between them in relation to the claimant’s employment is concerned. That the claimant was well aware of the contents of the offer of employment before his acceptance of same. He voluntarily executed the contract and had immensely benefitted from it. He cannot renege from observing the tenets thereof, citing LSWC v. Sakamori Construction (Nig.) Ltd [2011] 12 NWLR (Pt. 1262) 569, where Okoro, JCA (as he then was) in his lead judgment at 598 F – G held – This court had earlier held that where, as in this case, an agreement made by the parties stipulates that any dispute arising therefrom must be referred to arbitration or a referee, it would amount to jumping the gun or the queue for any of the parties to resolve to go to court first before the dispute between the parties is referred to an appointed referee or arbitrator in their agreement. The defendant continued that the relationship between it and the claimant was regulated by Exhibit AM1 which was duly executed by both parties. That the claimant has not put forth any fact, evidence or argument to show that he was forced or coerced to accept the offer of appointment. He is, therefore, bound by the arbitration clause of his agreement with the respondent. That in the case of Onward Ent. Ltd. v. MV “Matrix” [2010] 2 NWLR (Pt. 1179) at 530 Mshelia, JCA at 557 F – H in his lead judgment held thus – Once an arbitration clause is retained in a contract which is valid and the dispute is within the contemplation of the clause, the court should give regard to the contract by enforcing the arbitration clause. See Heyman and anor v. Darwins Limited [1942] AC 356. It is therefore the general policy of the court to hold parties to the bargain into which they had entered unless there was a strong, compelling and justifiable reason to hold otherwise or interfere...There is nothing to show that the arbitration agreement was imposed on the appellant. Since both parties voluntarily, entered into the agreement same should therefore be binding on them. See Jadesimi v. Egbe & ors [2003] 10 NWLR (Pt. 827) 1 at 31. Furthermore, that the alleged dispute is within the contemplation of the arbitration clause. As such, the claimant is duty bound to first of all submit any grievances arising out of his contract to arbitration as a means of settlement, failure of which he may later institute this suit. In Nissan (Nig.) Ltd v. Yoganathan (supra) – citation is not supplied – 135 at 157D, Dongban-Mensem, JCA held thus: “Litigants who commit to arbitration in their contractual agreements should respect such”. The defendant then submitted that this Court is bound to uphold and or enforce the provision for arbitration in the agreement entered into by both parties, citing LSWC v. Sakamori Construction (Nig.) Ltd (supra) at 598 B – C, where the Court held – It is well settled that where parties have chosen to determine for themselves that they would refer any of their dispute to arbitration instead of resorting to regular courts, a prima facie duty is cast upon the courts to act upon their agreement. The courts should not be seen to encourage the breach of a valid arbitration agreement voluntarily entered into by the parties. On issue 2 i.e. whether the claimant’s failure to observe the requirement of clause 9(D)(i) of his agreement with the defendant, as a condition precedent, has not robbed this Court of the jurisdiction to entertain this suit, as yet, the defendant contended that it is now trite law that all proceedings undertaken in or by a Court in want of jurisdiction amount to nothing but a nullity. The defendant accordingly submitted that the issue of jurisdiction is extremely important, so much so that once a Court realizes that it lacks the jurisdiction to entertain a particular matter, it must immediately withdraw from hearing the action and make the appropriate order in the circumstances. That the Supreme Court in the case of Eletu-Habeeb v. A-G Fed [2012] 13 NWLR (Pt. 1318) at 423 per Ariwoola, JSC in his judgment at 542 D – E held as follows – Jurisdiction is the pillar upon which the case before the Court stands. When an action is brought before a Court, it certainly presupposes that the Court has jurisdiction or that it is competent to hear and determine the matter. Therefore, the moment a defendant or respondent as the case may be satisfies the Court that it has no jurisdiction, the foundation of the case is destroyed. In other words, the Court is prevented from adjudicating on the matter and cannot hear the parties any longer. To the defendant, the question of how and why a Court may be deprived of the jurisdiction to adjudicate upon a matter had long been settled by the Supreme Court in the case of Madukolu v. Nkemdilim [1962] 2 SCNLR 341. In that case, it was held that a Court is competent to adjudicate on a matter before it, when – a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other; b) The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and c) The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. That the mutual agreement by the parties was that their differences would be resolved by negotiation and or arbitration. The provision of clause 9(D)(i) obviously constitutes a condition precedent to the institution of this suit. The defendant went on that the claimant can only validly institute this suit if he can show that he had fully explored the avenue for mutual discussion and or arbitration. In this case, that the claimant totally failed to fulfil that condition precedent before filing the substantive suit. He recklessly refused to explore mutual discussion and or arbitration. That a condition precedent is an act or a step prescribed by a law or a contract binding the parties which must be done or performed prior to the institution of a suit by either party or the aggrieved party. Therefore, unless the provision of Clause 9(D)(i) has been explored, none of the parties can approach this Court for any relief, citing LSWC v. Sakamori Construction (Nig.) Ltd (supra), where Okoro, JCA in his lead judgment at 598G – 599B held – ...I think the parties ought to take advantage of that arrangement before approaching the court. If that method fails to produce an amicable settlement, then they can come to the court. I need to add that a referral of this matter to arbitration is a condition precedent for the activation of the jurisdiction of the court below. I have said this because I know that no arbitration clause in any agreement can be made to oust the jurisdiction of the High Court granted under section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999. Thus, where an arbitration fails to produce an amicable settlement of the dispute, either party is at liberty to approach the court for the determination of the dispute. To the defendant, it is clear that the claimant should have satisfactorily explored the avenues for settlement of this dispute prior to instituting this suit. That although the arbitration clause in the agreement cannot completely oust the jurisdiction of this Court, it constitutes a condition precedent which must be satisfied before a party can approach this Court for adjudication. That this Court therefore lacks the competence and jurisdiction to adjudicate upon this suit until the condition precedent is satisfied. In conclusion, the defendant submitted that the claimant failed to fulfil a condition precedent to the institution of this suit which has robbed the Court of the competence and jurisdiction to adjudicate upon this matter at this present time. That this Court also has an obligation to hold the parties bound by their contract to explore arbitration. The defendant further submitted that as this Court lacks the competence and jurisdiction to entertain this suit, the appropriate order for this Court to make in the circumstances is to strike out the suit and or refer the parties to arbitration. The defendant accordingly urged the Court to strike out the claimant’s suit in limine. In reaction, and in relying on his counter-affidavit together with the attached exhibits, the claimant framed two issues for the determination of the Court, namely – 1) Whether this Court has jurisdiction to hear and determine this suit. 2) Whether in the light of the defendant’s opposition to amicable resolution of the dispute between the parties this Court ought to say (sic) proceedings in this suit. Regarding issue 1), the claimant contended that the kernel of the defendant’s argument on this issue is that the claimant failed to fulfil a condition precedent to instituting this action in Court, to wit: taking the matter to arbitration. In other words, the defendant is not contesting this Court’s jurisdiction to hear and determine the subject matter of this suit. Thus if it is shown that the claimant did not breach any condition precedent to instituting this action then this Court is not bound to uphold the so called arbitration clause; this leg of the application is accordingly bound to fail. The clause in the contract of employment relied upon by the applicant provides as follows: “Both parties will at all times endeavour to resolve differences through mutual discussion and/or arbitration”. To the claimant, for the avoidance of doubt, the said clause provides any aggrieved party (in this case the claimant) with an alternative. That is to say the claimant had a choice to either resolve the issue at stake by mutual discussion or referring the same to arbitration. Interestingly, that as revealed in paragraphs 6 and 7 of the claimant’s counter-affidavit, as well as the two exhibits attached to the claimant’s counter-affidavit, the claimant took advantage of the said clause before and after instituting this action but the defendant rebuffed the claimant’s moves for amicable resolution of the matter, thus leaving the claimant with no option within his means than to approach this Court. That it is, therefore, an act of bad faith for the defendant to frustrate the claimant’s move for amicable resolution of the matter and then turn around to make it an issue in this application. To the claimant, the jurisdiction conferred on this Court by section 12(2) of the National Industrial Court Act empowers this Court to regulate its procedure and seek to do substantial justice instead of clinging to strict provisions of statutes. This is in line with the special status of this Court as the sole Court vested with the power to determine employer/employee disputes. The claimant then submitted that by the said provision this Court is not bound to apply the provisions of the Arbitration and Conciliation Act and cases relied upon by the applicant; more so when it is obvious that this application is brought mala fide to frustrate the claimant from pressing his claims against the defendant. On issue 2, the claimant submitted that this Court, having become seized of the facts surrounding the failure/refusal of the applicant to submit to conciliation efforts of the claimant, will be doing justice by refusing the defendant’s prayer to stay proceedings herein for the purpose of amicable resolution of the dispute between the parties. In conclusion, the claimant submitted that the defendant relies on clause 9(D)(i) of the claimant’s contract of employment which gives an aggrieved party the options of either arbitration or mutual discussion. That he chose the latter option before and after instituting this action but was rebuffed by the applicant. That in virtue of section 12(2) of the National Industrial Court Act this Court is not bound to apply the provisions of the Arbitration and Conciliation Act. Lastly, that the record of the Court will show that the applicant has consistently rebuffed the claimant’s move to amicably resolve this matter thus granting a stay of proceedings for the same purpose will only serve the desire of the defendant to frustrate the claimant from ventilating his right before this Court. The defendant did not file any reply on points of law. I heard learned counsel and considered all the processes filed in this matter. The sole issue before the Court is whether the parties ought to have submitted themselves to arbitration as per the contract of employment of the claimant before coming to this Court. The answer to this issue depends on the construction of the relevant clause in the claimant’s contract of employment. Clause 9(D) on “Agreement” in the letter of offer of appointment dated 29th September 2008, the relevant clause, provides in sub-clause (i) that: “Both parties will at all times endeavour to resolve differences through mutual discussion and/or arbitration”. The argument of the defendant is that the claimant did not submit to arbitration before coming to this Court. The claimant on the other hand contends that in terms of construing clause 9(D)(i), he has the option of going for either discussion or arbitration (certainly not both) before he can come to this Court; and that he went for discussion but was rebuffed by the defendant. The problem with the submission of the claimant, however, is that Exhibits A and B attached to the counter-affidavit in opposition to the defendant’s objection, said to be evidence of the claimant’s search for amicable settlement of this matter, are letters issued after this action was filed on 13th June 2013. Exhibit A dated 16th December 2013 is a letter from counsel to the claimant to counsel for the defendant reiterating what transpired between the parties at the meeting they held at the behest of the Court as per the Court’s sitting of 23rd October 2013. Exhibit B dated 24th January 2014 is the reply to Exhibit A by the counsel to the defendant. The thing with Exhibits A and B, what the claimant puts forward as proof that he sought discussion as demanded by clause 9(D)(i), is that they were generated after this case was filed, and only because the Court had asked parties to try and resolve the matter out of Court. The question that arises, therefore, is whether that is what clause 9(D)(i) contemplates. In other words, when clause 9(D)(i) urged parties to resolve their differences through mutual discussion and/or arbitration, is it before the filing of an action or after the filing of an action in terms of those differences? A clause such as clause 9(D)(i) is meant to enjoin pre-trial attempts at settling a dispute. Parties in such a case are to try to resolve the dispute out of court before they can come to court. In this sense, I agree with the defendant that the claimant ought to have gone for arbitration before coming to this court. In other words, the claimant is pre-maturely before the Court. The argument of the claimant that the defendant rebuffed the moves made by his counsel to seek amicable resolution of the dispute between the parties cannot be tenable here because what the claimant gave as proof (Exhibits A and B) indicates attempts at settling this dispute after the case was filed, not attempts at settling the dispute before the case was filed. Clause 9(D)(i) envisages that both parties will at all times endeavour to resolve differences through mutual discussion and/or arbitration before an action is filed, not after the action is filed, as to the differences in question. The claimant did not show the Court any evidence that the parties had any discussion before he came to Court. Given the weight of the authorities cited by the defendant and the additional concurring judgment of His Lordship Nweze, JCA in Bodunde v. SCI & CS Ltd, OAUTH Complex [2013] 12 NWLR (Pt. 1367) 197, which held that failure to exhaust domestic remedies robs the Court of jurisdiction, I am compelled to hold in favour of the defendant that the claimant is prematurely before this Court. The argument of the claimant that under clause 9(D)(i) he has the option of going for either discussion or arbitration (certainly not both) before he can come to this Court goes to no issue as there is no proof before the Court that he did any of that before coming to this Court. It will be academic to answer that argument of the claimant – and Courts are enjoined not to answer issues that are merely academic. The defendant prayed in the alternative that this suit be either struck out or sent to arbitration. The Court had asked parties to try and resolve this matter out of Court, and parties failed to reach an agreement in that respect. Ordering arbitration now may not be any different. Since the authorities state that in a case such as the instant case the Court is robbed of jurisdiction, I have no choice but to simply strike out the case, the claimant prematurely being before the Court. On the whole, I find for the defendant. The claimant is prematurely before the Court. The instant case is accordingly struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip