Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: OCTOBER 28, 2014 SUIT NO. NICN/LA/500/2013 BETWEEN Alhaji Mohammed Uba Kuta - Claimant AND 1. Mr. R. Grant 2. Sofitam Nigeria Limited 3. Head, Pension Department CFAO/Sofitam - Defendants REPRESENTATION Ibrahim Bawa, for the claimant. Chukwuma N. Okah, and with him is E. M. Nwankwo, for the defendants. RULING This is a transferred matter from the High Court of Lagos State, Badagry Judicial Division, sitting at Badagry. The claimant had taken up against the defendants a writ of summons dated and filed on 9th July 2009. The claims of the claimant are for the following reliefs – 1. A declaration that the dismissal of the claimant was wrong, null and void and of no effect as due process of law was not followed as the claimant was not given fair hearing or the allegation proved against the claimant. 2. Two months gross salary for wrongful dismissal of claimant employment as stated in the Senior Staff Handbook as claimant spent one month by virtue of his resignation letter dated 2nd April 2009 in lieu of the dismissal. 3. Gratuity entitlement of basic salary for 15 months for 13 years meritorious service with the defendants as stated in the conditions of service handbook. 4. Leave allowance not enjoy entitlement. 5. Annual leave allowance for the year 2008 – 2009 being 12% of the claimant basic salary. 6. Claimant pending ASPF outstanding benefit since 1996 – 2005 before the Pension Reform Act was introduced Deposited with 3rd defendant. 7. ASPF fund deposited with the 3rd defendant for 2008 which has not been transferred by the 3rd defendant to the claimant Pension Fund Account Administrator. 8. Withdraw the letter of dismissal and replace it with letter of voluntary retirement. 21% interest per annum on the said entitlement on prayers 1 – 6 until judgment is delivered. 10% interest per annum of the judgment sum until the judgment sum is liquidated. 9. Cost of this action. In their amended statement of defence and counterclaim dated 26th November 2010, the defendants denied liability for the claimant’s claims and counterclaimed against the claimant for the following – a) The sum of N48,184,000 representing the market decline in sales and loss of profit from June 2008 to May 2009 as a result of the claimant’s breach of the contract of employment. b) Interest on the said sum of N48,184,000 at the rate of 21% per annum from 14th May 2009, date of dismissal of the claimant from employment of the 2nd defendant till the date of judgment and thereafter at the rate of 6% per annum till payment is made. In response, the claimant filed a reply to the statement of defence and counterclaim dated 28th April 2010 and denied amongst others of being in breach of the 2nd defendant’s Senior Staff Handbook. At the first sitting of this Court on 11th October 2013, the Court noted that from the record of proceedings of the case at the High Court, trial commenced in the matter before the coming into effect of the Third Alteration to the 1999 Constitution, which means that the High Court ought to have heard the matter to conclusion given the authority of Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496. Section 24(5) of the National Industrial Court (NIC) Act 2006 provides that where the Court to which a matter has been transferred is of the opinion that the case ought in law to be dealt with by the Court transferring the 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. In consequence, counsel in the matter were then 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 claimant’s written address is dated 7th April 2014 but filed on 9th April 2014, while that of the defendants is dated and filed on 6th May 2014. In summary, both parties submitted that this Court should assume jurisdiction over the matter implying that there was no need for any case stated to the Court of Appeal. The facts of the case according to the claimant are that he was an employee of the defendants for a period of over 13 years. In 2009, the defendants purportedly terminated his employment without due process as stated in the defendants’ conditions of service for disengagement of an employee. Being aggrieved, he sued at the Badagry Division of the Lagos State High Court. during the pendency of the matter at the Lagos State High Court, the 1999 Constitution was amended divesting the High Court of jurisdiction over the matter vide section 254C of the 1999 Constitution, as amended. The trial judge, Hon. Justice H. O. Oshodi accordingly declined jurisdiction and subsequently transferred the matter to this Court. The claimant referred the Court to section 254C(1)(a) of the 1999 Constitution, as amended, which provides that – (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. Also referred to the Court is section 295(2) of the 1999 Constitution, as amended, which provides as follows – Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or National Industrial Court or a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision. It is the submission of the claimant that in interpreting constitutional provisions regard must be hard to the clear words of the provisions in order to give effect to the purpose of the provision of the Constitution or statute under construction. That it is not mandatory for this Court to refer this matter as a case stated to the Court of Appeal for any opinion as it is sacrosanct on either of the parties to the proceedings to request for case stated whilst the Court has the option as the words used in the Constitution referring to the Court is may and not shall, whilst it is not mandatory since judgment was yet to be delivered though trial has already commenced in the High Court before the amendment of the Constitution. To the claimant, in a case stated, the substantive case must have been decided by the Court or tribunal despite being aware of the provision ousting its jurisdiction which decision will be referred to higher court for reconsideration and not like in this case where judgment has not been delivered. The claimant referred the Court to Alhaji Mohammed Sami Abacha [2000] 5 NWLR (Pt. 655) 50 at 86 where the Court held that matters of reference from High Court for case stated are sui generis or belong to a special jurisdiction/power of the Court. The claimant went on that the right to have a case stated on a novel constitutional matter to the Court of Appeal is a constitutional right of the parties; however, there is no remedy for a refusal by the court below to send a case stated to the court of Appeal as it is not expressly provided for in the Constitution. The constitutional right of the party cannot be interfered with by the court generally speaking. That courts are creatures of statutes and it is the statute that created a particular court that will also confer on it its jurisdiction, which may be extended not by the court but by the legislature. The claimant continued by referring the Court to Obiuweubi v. CBN [2011] 2 – 3 SC (Pt. 1) 46; [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496. To the claimant, though trial in this case had already commenced at the High Court of Lagos State before the alteration and amendment of the 1999 Constitution with section 254C vesting exclusive jurisdiction on employment and labour related matters in this Court and ousting the jurisdiction of any other court, since the matter had already been transferred to this Court, this Court can commence trial or transfer the matter back to the Lagos State High Court, referring to Obiuweubi v. CBN. It is the submission of the claimant that since jurisdiction has been transferred to this Court by virtue of section 254C, this Court can go ahead and determine the matter without necessarily having the constitutional provision(s) given interpretation by the Court of Appeal whilst section 295(2) of the 1999 Constitution, as amended, does not make it compulsory/mandatory for case stated to the Court of Appeal in a matter of this nature. In conclusion, the claimant urged the Court to assume jurisdiction and hear the matter on merit or transfer or return it back to the High Court if the Court is of the opinion that it was wrongly transferred to this Court. In their reply written address, the defendants acknowledged that pre-trial conference in the matter ended on 18th October 2010 and trial commenced on 23rd November 2010 and 31st January 2011 where the claimant and the defence witnesses gave evidence; and the matter was adjourned to 7th April 2011 for adoption of final written addresses after the defendants closed their case on 31st January 2011. It was on 10th October 2012, after several adjournments, that the High Court raised the issue of jurisdiction in view of section 245C(1)(a) and (b) of the 1999 Constitution, as amended. On 5th February 2013, the High Court in a considered ruling declined jurisdiction to entertain the matter and then ordered a transfer of the case to this Court. The defendants raised one issue for the determination of the case, namely – Whether this Court has the jurisdiction to hear and determine this matter in view of section 254C(1)(a) and (b) of the 1999 Constitution, as amended, in view of the fact that trial has been concluded in the matter at the High Court of Lagos State before the order transferring same was made. To the defendants, from the totality of the claimant’s claims, this Court has the requisite jurisdiction to hear and determine this particular case, citing Umanah v. Attah [2006] 17 NWLR (Pt. 1009) 503 at 536, John v. Igbo-Ekiti LGA [2013] 7 NWLR (Pt. 1352) 1 at 17, section 254C(1)(a) and (b) of the 1999 Constitution, as amended, and section 7 of the National Industrial Court (NIC) Act 2006. It is the further submission of the defendants that trial in the matter having been concluded at the High Court of Lagos State on 31st January 2011 after the coming into effect of section 254C(1)(a) and (b) of the 1999 Constitution, as amended, Hon. Justice Oshodi was right in declining jurisdiction to continue hearing the matter and granting an order transferring same to this Court since judgment has not yet been entered. The defendants then referred the Court to Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496. The defendants then urged the Court to make an order that this Court has jurisdiction to hear and determine the instant suit and set it down for hearing de novo. I heard learned counsel and all the processes filed in the matter. In considering the merit of the matter at hand, I must remark on a thing or two especially regarding the submissions of counsel. Both counsel in their submissions assumed that the only issue they were asked to address the Court on was whether the Court had jurisdiction to hear and determine the case at hand. They completely did not allude to the second limb of the issue, which is the necessity for a case stated to the Court of Appeal. The issue at hand was not just about the absence of jurisdiction, but whether the issue should not be sent to the Court of Appeal for its opinion as to whether it is the High Court (which had commenced trial long before the Third Alteration to the 1999 Constitution was passed) or this Court that should hear the matter to conclusion. Nowhere in the written addresses of both counsel would this second limb of the issue be found. Instead both counsel proceeded on premises that were based on falsehoods. For instance, contrary to the submission of the counsel to the claimant, the matter calling for case stated was not in virtue of section 295(2) of the 1999 Constitution, as amended. The Court was very emphatic even at the sitting of the Court on 11th October 2013 that the call for case stated was in virtue of section 24(5) of the NIC Act 2005. So the argument of the claimant’s counsel that there is no compulsion to make the case stated (flowing from section 295(2) of the 1999 Constitution, as amended) accordingly becomes misplaced. Secondly, the capacity of counsel to mislead is self evident in paragraph 2.6 of the claimant’s written address. In the said paragraph 2.6, the claimant had argued that this Court can commence trial or transfer the matter back to the Lagos State High Court, referring to Obiuweubi v. CBN. Where in section 24(5) of the NIC Act 2006 (or even under section 295 of the 1999 Constitution), or where in Obiuweubi v. CBN is it stated that this Court can commence hearing or transfer the case back to the Lagos State High Court? Section 24(5) of the NIC Act 2006 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. The defendants’ counsel was not left behind in this act of misleading the Court. In paragraph 14 of their written address, in trying to apply Obiuweubi v. CBN to the fact situation before the Court, counsel to the defendants explained that if trial had commenced before the new law came into effect, the Court in which the suit was instituted continues to have jurisdiction and can validly conclude the matter. Counsel to the defendants, however, proceeded to qualify Obiuweubi v. CBN as saying that “if judgment is yet to be entered when the new law comes into effect, the Court ceases to have jurisdiction”. In open Court I asked counsel to the defendants to show me where Obiuweubi v. CBN made this qualification. He could not. In paragraphs 12 and 15, the counsel to the defendants continued with the falsehood when especially in paragraph 15 he stated that “in the instant case trial commenced i.e. on 31 January 2011 after the coming into effect of sections 254(1)(a) & (b) of the Constitution….” The Third Alteration to the 1999 Constitution came into effect on 4th March 2011. So if trial commenced on 31st January 2011 it could not have been “after the coming into effect of sections 254(1)(a) & (b) of the Constitution…” as argued by counsel to the defendants. In any event, the same counsel to the defendants had earlier acknowledged that “trial commenced on 23rd November 2010 and 31st January 2011 where the claimant and the defence witnesses gave evidence in support of their claim and defence and counterclaim respectively”. What I understand this statement to mean is that the claimant gave evidence 23rd November 2010 and so trial commenced on 23rd November 2010. If trial actually commenced on 23rd November 2010, how come then that counsel is taking 31st January 2011 as the date trial commenced? Where a claimant first gives evidence, can any subsequent date be the trial date? Deliberate falsehoods such as these in the name of advocacy are sure detestable. As I indicated, the issue at hand is whether a case stated should be made for the opinion of the Court of Appeal as to whether it is the High Court or this Court that should hear and determine this case. There is no dispute between the parties as to the facts of this case in terms of the issue at hand. This is a matter transferred to this Court by the High Court of Lagos State, Badagry Division. The case was heard at the High Court as Suit No. BD/67/2009. From the ruling of Hon. Justice Olatunde H. Oshodi delivered on 5th February 2013, trial in this suit at the High Court commenced on 23rd November 2010 and was concluded on 31st January 2011 and the matter was adjourned for judgment after the adoption of final written addresses. Judgment could not be delivered on the appointed date (23rd May 2012) as the Court did not sit. Even when subsequently the addresses were readopted, judgment was still not delivered. Parties were instead asked to address the Court on whether or not the High Court still had jurisdiction to determine the case in view of the Third Alteration to the 1999 Constitution, which came into effect on 4th March 2011. In the ruling of 5th February 2013, Hon. Justice Oshodi declined jurisdiction and then ordered that the case be transferred to this Court. It should be noted that throughout the ruling of 5th February 2013, the Supreme Court decision in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496; [2011] 2 – 3 SC (Pt. 1) 46 was not cited and considered. I have no reason to doubt any of these facts; and none was shown to me. For present purposes, therefore, I find and hold that the trial at the High Court commenced on 23rd November 2010 – at least the defendants acknowledged this fact. Now, Obiuweubi v. CBN held as follows – The law in force or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the suit, while the law in force at the time of trial based on cause of action determines the court vested with jurisdiction to try the case. For example, Decree 107 of 1993 came into force on the 17/11/93. A litigant who had a cause of action in 1990 would have his case governed by the law at the time (i.e. 1990). If trial commences before 1993, the court to try the case would be the State High Court but if after 17/11/93 the case would be tried in the Federal High Court. My understanding of Obiuweubi v. CBN is that since trial commenced on 23rd November 2010, and the Third Alteration to the 1999 Constitution came into effect on 4th March 2011, the question is whether, in terms of Obiuweubi v. CBN, the High Court should not have continued and delivered judgment, trial having commenced before 4th March 2011, the date the Third Alteration to the 1999 Constitution came into effect, written addresses were adopted and the matter slated for judgment. It should be noted that Obiuweubi v. CBN followed the earlier Supreme Court decision of Osakue v. Federal College of Education, Asaba [2010] NWLR (Pt. 1201) 1 where the suit was filed at the High Court of Delta State in 1992 but trial did not start until 1994 by which time Decree 107 of 1993 had divested State High Courts of jurisdiction in favour of the Federal High Court. The Supreme Court held that the High Court of Delta State no longer had jurisdiction over the matter. Reviewing the two cases, the learner authors, Prof. Offornze D. Amucheazi and Paul Ugwu Abba, in their book, The National Industrial Court of Nigeria: Law, Practice and Procedure (Wildfire Publishing House), 2013 at page 83, rightly in my view held – …matters already filed before the State High Courts and the Federal High Court bordering on labour and employment disputes, but which had not proceeded to trial as of 4th March 2011, when the Third Alteration of the Constitution came into force, can no longer be entertained by such courts, as they now lack the jurisdiction to commence trial in such matters…. However, for part-heard matters, i.e. matters in which trial has already commenced, such matter can continue to be heard and determined by the court before which they are filed…. Section 24(5) of the NIC Act 2006 enjoins that where in doubt as to jurisdiction in a case transferred by the High Court, the course of action open is to make a case stated to the Court of Appeal for its opinion as to the proper Court to hear and determine the case. The submission of both parties is that this Court has jurisdiction over the case at hand and so the Court should simply assume jurisdiction and dispose of the case. The issue that accordingly arises is whether 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. See S. O. Akegbejo & ors v. Dr D. O. Ataga (Director NIFOR) & 3 ors [1998] 1 NWLR (Pt. 534) 459, Peenok Investments Ltd v. Hotel Presidential Ltd [1983] 4 NCLR 122 and Osadebay v. AG, Bendel State [1991] 1 NWLR (Pt. 169) 525. 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, African Newspaper & ors v. FRN [1985] 2 NWLR (Pt. 6) 137 SC, Ifeajuna v. Ifeajuna [2000] 9 NWLR (Pt. 671) 107, Eguamwenze v. Amaghizemwav [1993] 9 NWLR (Pt 315) 1 and SCC (Nig.) Ltd & 2 ors v. Yusuf Sedi [2013] 1 NWLR 230, 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. It is in this context that the Court doubted and still doubts whether it has jurisdiction over the instant case. My reading of Obiuweubi v. CBN is that the High Court ought to hear and determine the case. This means that this Court has no jurisdiction over the case; and here I must disagree with both counsel in the matter who argue that the Court has jurisdiction. 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 Lagos State sitting at Badagry and so I cannot sit on appeal over it by re-transferring the case back to it. The prayer of the claimant’s counsel that I transfer the matter back to the High Court cannot, therefore, be granted as that would mean sitting on appeal over the decision of a judge of coordinate jurisdiction. 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 – Whether, given the fact that trial in this case commenced on 23rd November 2010 at the High Court of Lagos State sitting at Badagry i.e. before 4th March 2011, the date the Third Alteration to the 1999 Constitution came into effect, and given the decision of the Supreme Court in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496, which held that the law for determining jurisdiction is the law as at the time trial commences and so the Court with jurisdiction is that as per the law existing at the time of commencement of trial, it is not the High Court of Lagos State that should hear and determine this case. The Court of Appeal is accordingly and humbly called upon to give its opinion as to whether it is the High Court of Lagos State or this Court that has jurisdiction to hear and determine this case. Ruling is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip