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BEFORE THEIR LORDSHIPS Hon. Justice F.I. Kola-Olalere Presiding Judge Hon. Justice O. A. Obaseki-Osaghae Judge Hon Justice J. T. Agbadu-Fishim Judge Date: July 13, 2009 SUIT NO. NIC/LA/09/2009 BETWEEN Mr. Abdul Shaibu Claimant/Respondent AND Noble Drilling (Nigerian) Ltd Respondent/Applicant REPRESENTATION K. Salawu Esq., for the claimant/respondent GbengaBello Esq., for respondent/applicant RULING The claimant/respondent commenced the substantive action by way of complaint, which he filed together with a statement of facts claiming the following: a. A declaration that the purported summary dismissal of the claimant by the respondent from the employment of the respondent contained in the defendant's letter of 12th August 2004 is wrongful, illegal, null and void and of no effect whatsoever. b. An order of the court directing the respondent to pay to the claimant all his unpaid salary arrears from the 12th of August 2004 when he was wrongfully dismissed until the date and time judgment is delivered. c. An order of the court directing the respondent to pay to the claimant all his unpaid allowances benefits and emoluments clue to the claimants in line with the 1st of November 2003 collective agreement from the 12th of August 2004 until date and time judgment is delivered. d. An order of court directing the respondent to reinstate the claimant to his employment with the respondent; or e. In the alternative : An order directing the respondent to pay the claimant a month's salary in lieu of notice and pay him all his entitlement and severance package as due to him under the provision of article 28 of the agreement. In the statement of facts, the claimant/Respondent averred that, the respondent/applicant employed him as an instrumentation technician in its company. He stated further that while he was in the respondent/applicant's employment, he was diligent in his duty and that he was never given any query or warning. That he was, however, given letter of dismissal to his rude shock, bewilderment and contrary to the terms and conditions of his employment as contained in the collective agreement between his workers' union and the respondent/applicant. The claimant/respondent further averred that the respondent/applicant refused to pay his entitlements and severance benefits after his dismissal. Upon receipt of the claimant/respondent's processes, the respondent/applicant entered a conditional appearance and filed this preliminary objection challenging the jurisdiction of this court to entertain the case. The preliminary objection is brought pursuant to Section 7 of the National Industrial Court Act 2006, Order 15 of the National Industrial Court Rules 2007 and the inherent jurisdiction of this court. The motion is dated 23'd March, 2009 and filed on 25lh March, 2009. The motion is praying for the following; 1. An order striking out this suit in its entirety for want of jurisdiction. The ground upon which this application is brought is: i. The claimant's claims are outside the civil causes and matters which this Hon. Court can adjudicate upon. By agreement of parties the motion was argued on record. The parties filed and exchanged written briefs on the motion. The respondent/applicant in support of its preliminary objection submitted that a court can only have jurisdiction when:- a. It is properly constituted as regards number of and qualification, of members of the bench and no member is disqualified for one reason or another. b. The subject-matter of the case is within its 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. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341;'Alhaji Usman Magaji v. Maidorowa Matari [2000] 8 NWLR (Pt. 670) 722 at 735D-F, 736D-E The respondent/applicant submitted that in determining the court's jurisdiction, the court will consider only the claimant's claims. See Tukur v. Government of Gongola State [1989] 4 NWLR (PL 117) 517 at 549d, Western Steel Works v. Iron & Steel Workers [1987] NWLR (Pt. 49) 284. The respondent/applicant also submitted that in such instance the court will again consider the claimant's pleading where that is applicable. See Attorney General Kwara State v. Olawale [1993] 1 NWLR (Ft. 272) 645 at 675E. On the jurisdiction of this court the respondent/applicant submitted that the jurisdiction of this court as well as any other court cannot be conferred on or taken away from it by agreement of parties before it. See Mrs. Matilda Aderonke Dairo v. Union Bank of Nigeria & anor [2007] 16 NWLR (Pi. 1059) 99 at 130 C - E. It submitted that the issue of jurisdiction is a radical and crucial question and if jurisdiction is absent, no matter how the case is brilliantly decided it is still a nullity. See Madakolu v. Nkemdilim, supra. The respondent/applicant submitted that courts are creation of statute. That a court derives its power from its enabling statute. It cannot expand that scope. See Oba Adebayo Ogitnmohm v. Military Administrator of Osun State [1999] NWLR (Ft. 594) 261 at 280 B-G. The respondent/applicant quoted extensively from this decision. See also Samuel hvuagolu v. Mr. Chizea Pascal Azyka [2007] 5 NWLR (Pt. 1028) 613 at 633 G-H. The respondent/applicant submitted that section 1 of the National Industrial Court Act of 2006 established this court and section 7 of the Act gave jurisdiction to the court, which cannot be expanded beyond that provision. It submitted that the claimant/respondent's main claim is that his summary dismissal from the respondent/applicant's employment is illegal, null and void and of no effect. It submitted that other reliefs sought for are ancillary to the main claim. The respondent/applicant submitted that the Supreme Court had decided that once a court lacks jurisdiction on the main claim, it will also lack jurisdiction over the ancillary relief. It submitted that the claimant/respondent's main claim for wrongful dismissal is not a cause of action cognizable under section 7 National Industrial Court Act, because it is not a labour or trade union matter or dispute on industrial relations environment and conditions of work or matters incidental thereto. It submitted further that wrongful dismissal does not relate to grant of any order to restrain strike or lock out. That wrongful dismissal does not relate to any question as to interpretation of award on any labour, dispute or organisational dispute, terms of settlement of labour dispute and so on. The respondent/applicant submitted that the Court of Appeal has held that a claim for wrongful dismissal is not a claim cognisable under the jurisdiction of National Industrial Court. See New Nigerian Bank Plc & anor v. Akauve Moses Osoh & 40 ors [2001] 13 NWLR (Ft. 729) 232 at 261. It submitted that a claim for wrongful dismissal is founded on simple contract of employment which is governed by law of contract and that that is within the unlimited jurisdiction of the High Court, referring to section 272 of the Constitution without specifying which Constitution. It submitted that the relief borders on breach of contract and that this is not covered by section 7 of the National Industrial Court Act, referring to Felix Onuorah v. Kaduna Refining & Petrochemical Co. Ltd [2005] 6 NWLR (Ft. 921) 393 at 409d. The respondent urged the court to hold that the principal relief of the claimant is outside the exclusive jurisdiction of this court as spelt out in section 7 of the National Industrial Court Act. On the question of collective agreement, the respondent/applicant pointed out that the claimant/respondent was of the opinion that his dismissal was contrary to the terms and conditions of his employment as shown in the collective agreement. It submitted that the collective agreement in question is not binding; neither does it create any enforceable or justiciable right of action on any of the parties before the court. See New Nigerian Bank Plc & anor v. Akanve Moses Osoh & 40 ors, supra at 249 - 250 paragraphs G - E in particular. See also Rector Kwara Polytechnic v. Adefila [2007] 15 NIVLR (Pi. 1056) 42 at 86 - 87 paragraphs G - A. The respondent/applicant submitted that from the plethora of authorities cited, for a collective agreement to be binding, it must be incorporated into the terms of employment expressly or impliedly but that this is not the case in the present instance. It urged the court to follow the decisions in those cases cited and hold that the collective agreement is not enforceable nor binding hence the claimant's claim on it is not justiciable. The respondent/applicant urged the court to also hold that it is only the common law principle on the contract of employment that is applicable. The respondent/applicant opined that the claimant/respondent's prayer for an order of this court directing Noble Drilling Nig. Ltd to pay his unpaid arrears and allowances in line with the collective agreement is the only claim that gave jurisdiction to this court. It submitted that this claim cannot confer that jurisdiction because the collective agreement is not justiceable since it is not incorporated in the terms of employment of the claimant. The respondent/applicant submitted that there is no privity of contract between the parties in respect of the collective agreement. The respondent/applicant submitted that the remaining claims of the claimant/respondent are ancillary to the main claims. It pointed out that it is trite law that where the court lacks jurisdiction on the main claim, the ancillary claims cannot stand. See Alhaji Shehu AbdulGafar v. Government of Kwara State & 2 ors [2007] 4 NWLR (PL 1024) 375 at 403 paragraph G-H. It finally submitted that the ancillary prayers, are so inextricably tied to the success of the main prayer and that since the court lacks jurisdiction on the main prayer, the ancillary reliefs should suffer the same fate of lack of jurisdiction and the respondent urged the court to so hold. In his reaction to this application,"the claimant/respondent submitted that by virtue of section 7 of the National Industrial Court Act 2006, this court has unfettered jurisdiction to entertain this action being a labour related matter. He submitted that a statute must be given its ordinary meaning and interpretation especially when its provisions are unambiguous. That doing otherwise will amount to importing words unnecessarily and that that will violate the intent and meaning of the statutory provision. See Egbe v. Alh. & ors [1990] 1 NWLR (Pt. 128) 546 at 581, PDF v. 1NEC [1999] 11 NWLR (Pt. 626) 200 at 276, NBN Ltd v. Weide & Co. Nig. Ltd, [1996] 8 NWLR (Pt. 465) pg 150 at 165 para. D and Auka v. Lokoja [2001] 16 WRN 111 at 132. The claimant/respondent submitted that giving section 7 of the National Industrial Court Act its ordinary meaning, this court has unfettered jurisdiction on labour matters which include matters or causes on relationships between workers and employers. He pointed out that trade disputes inter alia means such dispute between an employer and an employee on issues like employment, non-employment of an employee or such arising from interpretation of terms and conditions of employment. See section 54 of National Industrial Court Act 2006. See also Lasisi Gbadegesin v. Wema Bank Plc unreported Suit No. NIC/57/2008 delivered on 2ml April, 2009. The claimant/respondent submitted that what he is seeking from the court is an interpretation of the terms and conditions of his employment. In other words, he is asking the court to decide whether the respondent/applicant was in breach when it absurdly and summarily dismissed him from its company without reason, or whether he was guilty of any misconduct or that there was any opportunity given to him to make any defence. He reasoned that his claim relates to the issue of welfare of an employee and on the interpretation of a collective agreement on employees' welfare. He submitted that this court has jurisdiction on all these issues itemised above by virtue of Section 7 (l)(a)(i) of the National Industrial Court Act 2006. See Lasisi Gbadegesin's case, supra. He submitted that the decisions in New Nigerian Bank Plc v. Akauve Moses Osoh & 40 ors, supra and Seatrucks (Nig) Ltd. v. A\'o Payne, supra relied upon by the respondent are distinguishable from the matter at hand because those cited decisions were reached in years 2001 and 1995 respectively before the enactment of the National Industrial Court Act in 2006. That those decisions relate to the interpretation of section l(a) of the Trade Dispute (Amendment) Decree of 1992 and not on section 7 of the National Industrial Court Act 2006. He urged the court to discountenance the submissions of the respondent/applicant that wrongful dismissal neither relates to labour nor constitute a cognisable cause of action under the provision of section 7 of the National Industrial Court Act 2006. The claimant/respondent submitted that such submission of the respondent/applicant is misconceived and erroneous in law. He submitted that his wrongful dismissal is indeed a labour related dispute between his employer (respondent/applicant) and himself (an employee) and that because the issue in question is connected with his own employment and non-employment the issue is within the exclusive jurisdiction of this court. The claimant/respondent submitted that holding otherwise will lead to absurdity and amount to mutilation of the statute because the foundation of any labour matter is the contract of employment between employer and employee. See Dauda v. UBA [2004] 9 NWLR (Pt. 878) at 292 - 293. On the question of enforceability of the collective agreement the claimant/respondent submitted that same can only be determined after evidence has been led and trial has been concluded. That without any evidence, the court cannot determine that question with certainty. See Lasisi Gbadegesin's case, supra. The claimant/respondent submitted that it is premature at this stage of the proceedings to make any judicial pronouncement on this question. He finally urged the court to dismiss the preliminary objection as same is misconceived, erroneous in law and lacking in merit. We have carefully considered the facts of this case as they relate to the issues raised in the preliminary objection, the submissions of counsel to both parties and all the authorities referred to by the two counsel. We note that in the respondent/applicant's written address, counsel indicated that he entered a conditional appearance for his client. Order 8 of the National Industrial Court Rules 2007 deals with issue of appearance before this court. None of the rules in this order covers or allows a conditional appearance. A party before the court either appears in person or through his/her/its counsel. Conditional appearance or appearance in protest is, therefore, not cognisable by the rules of this court. Counsel may wish to bear this in mind. It is also noteworthy to remind counsel that under the present dispensation of our legal system, the jurisdiction of the High Court is no longer unlimited as submitted by the respondent/applicant. The jurisdiction of the High Court may be general, but certainly not unlimited. The truth of the matter is that there is no court of law in Nigeria that has unlimited jurisdiction. All courts have limited jurisdiction in one form or the other. As agreed by both parties in their written addresses on this preliminary objection, the only issue for determination on this motion is whether this court has jurisdiction on the claimant/respondent's claims in the substantive case. The claimant/respondent's contention is that his dismissal by the respondent/applicant was wrongful. He therefore, urged the court to set it aside; order the respondent/applicant to pay all his accumulated salaries and allowances and also order his re-instatement -or alternatively order the respondent/applicant to pay his severance benefit in line with the collective agreement operative in the respondent/applicant's company. To these claims, the respondent/applicant has vehemently contended that this court has no jurisdiction because this dispute involves the principle of common law on simple contract of employment. Its main submission is that the said issue is not covered by section 7 of the National Industrial Court Act because it is not a labour issue or that incidental thereto. This leads to the question, what is a labour matter or labour dispute? Microsoft Encarta 2009 defines labour as the worker; in a country or in an industry, that it also means the supply of work for a particular job industry or employer. Labour dispute is defined in Blacks Law Dictionary 8th Edition at page 890, to mean "a controversy between an employer and its employeesconcerning the term or condition of employment" Trade Dispute is defined in section 54(1) of National Industrial Court Act to mean "any dispute between employer and employees including dispute between their respective organisations and federations which is connected with: a. the employment or non employment of any person b. terms of employment and physical conditions of work of any person c. the conclusion or variation of a collective agreement, and d. an alleged dispute". The effect of all these quoted definitions is that any controversy between an employer and an employee on terms and conditions of employment is a labour dispute on which this Court has jurisdiction. From the facts available to us, the claimant/respondent, Mr. Abdul Shaibu, was engaged in the service of the respondent/applicant as an Instrumentation Technician. In essence it means that the claimant/respondent was an employee of the respondent/applicant who was his employer. In other words the issue involved in this matter has to do with the employment or non-employment of Mr. Shaibu. This issue also involves the applicability of a collective agreement between the parties. Hence this matter is purely a labour one given sections 7 and 54(1) of the National Industrial Court Act 2006, and the definitions of labour and labour dispute cited above. We agree with the claimant/respondent and hold that this case is distinguishable from the cases of New Nigeria Bank Plc v. Akauve Moses Osoh and 40 ors. supra and that of Sea trucks (Nigeria) Ltd v. Ay o Payne, supra cited by the respondent/applicant because those two cases were decided in 2001 and 1995 respectively before the enactment of the National Industrial Court Act 2006, under which this present action is brought. We therefore, hold that the matter at hand is a labour matter which this Court has jurisdiction to handle. On the issue of the collective agreement, the respondent/applicant submitted that such agreement can be binding only when it is incorporated into the terms of employment expressly or impliedly. By virtue of section 7(l)(c)(i) of the National Industrial Court Act 2006, this court has power to determine any question as to the interpretation of any collective agreement. All the cases cited by the respondent/applicant on this issue are cases that were decided without regard to this statutory power of this court to determine questions as to the interpretation of collective agreements. Once an agreement is in writing and it relates to working conditions and terms of employment and that such "agreement was entered into and concluded between an organisation representing employers (or an association of such organisations), on the one part and an organisation of employees or an organisation representing employees (or an association of such organisations) of the other part, that agreement qualifies as a collective agreement and so qualifies for the jurisdiction of this court under section 7 of the National Industrial Court Act 2006. The question of a collective agreement complying with the provision of section 54(1) of the National Industrial Court Act 2006 cannot be determined at this stage of the proceedings. We therefore agree with the claimant/respondent's submission and hold that it is premature to raise this issue at this preliminary stage because the question can only be properly and effectively resolved after proper trial and while taking final decision on this case by the court. We hold that it is premature for the respondent/applicant to raise the issue of collective agreement at this stage. The question whether the collective agreement is enforceable or not is one that can be raised only as a defence to the action and not one for preliminary objection. On the whole we hold that this court has jurisdiction to try this matter because the issues involved are labour matters, or at worse, matters incidental to labour issues under section 7 (l)(a) of the National Industrial Court Act 2006. The preliminary objection of the respondent/applicant is hereby overruled and dismissed as same lacks merit. Ruling is entered accordingly. We make no order as to cost. Hon. Justice F. I. Kola-Olalere Presiding Judge Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge