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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON.JUSTICE O.Y ANUWE PRESIDING JUDGE DATE: 24TH SEPT, 2014 SUIT NO: NICN/OW/23/2013 BETWEEN ENGR. JUDE ONONIWU….……………….……...CLAIMANT/RESPONDENT (Trading under name of Judeson Chemical and Engineering Company Nigeria) AND 1. National Directorate of Employment DEFENDANTS/APPLICANTS 2. Federal Ministry of Labour and Productivity REPRESENTATION: B. O. Emere for the Claimant Chris Wogu for the 1st Defendant Oliver Enyinna for the 2nd Defendant RULING This suit was first commenced at the Federal High Court, Owerri on the 27th January, 2012 as suit No FHC/OW/CS/08/2012 whereat the Claimants sought the following reliefs jointly and severally against the defendants: 1. A Declaration of Court that there was a valid contract between the 1st Defendant and the Claimant. 2. A Declaration of Court that the Claimant validly and legally trained a total number of 2204 Trainees at the cost of N6,000.00 (six thousand naira) only per Trainee under the National Open Apprenticeship Scheme of Skill Acquisition under the Auspice of the 1st Defendant from the year 1996 to 2000. 3. A Declaration of Court that the 1st Defendant is indebted to the Claimant, to the sum of N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only being amount due and owed for training a total number of 2204 Trainees from year 1996 to 2000 under the National Open Apprenticeship Scheme of Skill Acquisition under the Auspice of the 1st Defendant. 4. An Order of Court mandating the Defendants to pay the Claimant the sum of N13, 776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only as debt due and owed to him for Training 2204 Trainees from 1996 to 2000 under the Auspice of the 1st Defendant. 5. An Order of Court mandating the Defendants to pay the Claimant 10% interest accruing from the said amount of N13, 776,000.00(Thirteen Million, Seven Hundred and Seventy Six Thousand Naira)only per annum from the year 2001 till judgment is given. By an ORDER OF TRANSFER dated 9th day of October, 2013, the suit was transferred to the National Industrial Court of Nigeria, Owerri Judicial Division. On the 6th day of February 2014, Counsel to the 2nd defendant Eyinnah esq. applied that all processes filed at the Federal High Court in this case be adopted and deemed as properly filed before this court. This was duly granted. Pending before the Federal High Court was a Motion on Notice dated 24th day of August, 2012 and filed on the 28th day of August, 2012, by which the Defendant/Applicant sought for the following reliefs: 1. An Order of the Honourable Court extending the time within which to apply to challenge the jurisdiction of the Honourable Court to entertain this suit. 2. An Order of the Honourable Court striking out this suit for want of jurisdiction on the ground that the suit is statute barred thereby robbing the Court of the jurisdiction to entertain same. 3. IN THE ALTERNATIVE, AN ORDER striking out the name of the 2nd Defendant from the suit as the Plaintiff’s pleading does not disclose any cause of action against the 2nd defendant. In support of the Motion on Notice is an affidavit of 8 paragraphs and a written address canvassing arguments in support of the application. On the prayer for extension of time applicant’s counsel urged the Court to exercise its discretion in favour of extending the time within which the application may be brought. On the ground LACK OF JURISDICTION ON GROUND THAT THE ACTION IS STATUTE BARRED, citing the case of POPOOLA ELABANJO vs. GANIAT DAWODU (2006) All FWLR (Pt. 328) Pg. 604 and EGBE vs. ADEFARASIN (No.2) (1987) 1 NWLR (Pt. 47) 1, it was the submission of Counsel to the 2nd defendant/applicant that the action is statute barred, having been caught up by the statute of limitation. The contract in question was entered into in Lagos with 1st defendant, and the Claimant executed the contract in Lagos. Counsel therefore submits that the governing law of that transaction is the Laws of Lagos State. Counsel argued that by the provision of Section 8 (1) (a) of Cap L67 Laws of Lagos State 2005, any action founded on simple contract must be instituted within 6 years from the date the cause of action accrues. It was his submission that the Claimant’s cause of action accrued in year 2000 when the Claimant completed the training but was not paid by the 1st defendant. The Claimant instituted the action on the 22nd day of January, 2012, twelve years after the cause of action accrued. Counsel submitted that the relationship between the Claimant and the 1st defendant was a simple contract and the action ought to have been brought within 6 years as prescribed by the limitation Laws of Lagos State. Having brought the action after 6 years from date of accrual of cause of action therefore, it was his submission that the suit is statute barred and unmaintainable and the Court lacks the jurisdiction to entertain same. On Applicant’s prayer number 3, STRIKING OUT THE NAME OF THE 2ND DEFENDANT, counsel referred to the statement of claim of the claimant and submitted that the claimant did not aver any wrongful act against the 2nd Defendant. Rather, that the contract was between the claimant and the 1st defendant who is a statutory corporation created by statute with power to enter into contract, sue and be sued. He stated further that no role was played by the 2nd defendant at the time of entering into the said contract. The 2nd defendant did not act as guarantor to the 1st defendant and from the pleadings; nothing was alleged to be the wrongful act of the 2nd defendant against the claimant. Citing the case of BARR. JOHN DURU vs. PATRICK NWANGWU (2006) All FWLR (Pt. 324) 1830, Counsel urged the court to strike out the name of the 2nd defendant from the suit which has disclosed no cause of action against it. The 1st defendant/applicant had on the 11th day of May 2012, filed a Notice of preliminary objection at the Federal High Court wherein he urged the court to strike out this suit on the following grounds: 1. That the matter before this honourable Court is Statute barred 2. That once a matter is time barred, the plaintiff has no cause of action and thus left with nothing to enforce in law. In support of the said notice is a 9 paragraph affidavit and a written address wherein counsel contested the jurisdiction of this honourable court to hear and determine the substantive suit on the ground that the matter is statute barred, thereby leaving the plaintiff with no cause of action and thus left with nothing to enforce before any court of law. It was the submission of counsel to the 1st defendant that this action totally negates the provision of Section 7 (1)(a) of the Limitation Act Cap 522; Laws of the Federation of Nigeria, which provides that actions founded on simple contracts shall not be brought after the expiration of six years from the date the cause of action accrues, and that the matter before this honourable court is purely contractual and a simple one. It is trite law that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the time prescribed by the statute. Therefore an action brought outside the prescribed period does not give rise to a cause of action. The case of British Airways Plc vs. Akinyosoye (1995) 1 NWLR (pt. 374) page 722 at 732 and 733 paragraph H – B lends support to this principle of law when section 8(1)(a) of the Limitation Laws of Lagos State which is in Pari Materia with section 7(1)(a) of the Limitation Law Act was interpreted. See also the case of G.O.C. vs. Adio (1995) 2 NWLR Pt. 379 p. 570 at 576. In determining this preliminary objection, counsel said, it is pertinent to X-ray the meaning of cause of action and determine when the cause of action in this matter accrued to the plaintiff. Counsel urged the court to adopt the definition of Cause of action in Egbe vs. Adefarasin (1985) 1 NWLR pt. 3 page 549 at 551 which he said is very instructive. In the said case, a cause of action was defined to mean “the factual situation stated by the plaintiff, if substantiated, which entitles him to remedy against the defendant. It has also been defined as the act which caused the grievance of the plaintiff. See also Mobil Oil Nig. Plc vs. Malumfashi (1995) 7 NWLR pt. 406 page 246 at 252 para. 1. The alleged non-payment for services rendered to National Directorate of Employment by the plaintiff is the cause of this grievance and complaints and that is what has brought about this action. The question that follows is when did the cause of his grievance and complaint happen? The Supreme Court has held in Okechukwu Adimora vs. Nanyelugo Ajufo and 2 Ors. (1988) 6 SCNJ 18 that in any matter, the cause of action accrues when the cause of action becomes so complete so that the aggrieved party can begin and maintain his action. This position of the law was adopted by the Court of Appeal in Mobil Oil Nig. Plc vs. Malumfashi (Supra) per Okunola JCA. See also British Airways Plc. vs. Akinyosoye at page 725 (supra). In an action for breach of contract, the cause of action accrues for the plaintiff’s benefit from the time the breach of the contract is committed and not when the damage is suffered. This was the holding of the Court of Appeal Per Kalgo JCA in British Airways Plc. vs. Akinyosoye (supra) at page 731 paragraph D – E. This same position on which the cause of action accrues was re-echoed by the Court of Appeal in Edosomwan v. ACB Ltd. (1995) 7 NWLR pt. 408 page 477 at 473 where the Court of Appeal in considering section 4(1)(a) of the Limitation Laws of the defunct Bendel state held that a cause of action accrues when the act of the defendant gives the plaintiff a cause of complaint. For the purpose of Statutory Limitation of actions, time begins to run from the moment the cause of action arises and there is a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle a plaintiff to succeed. In the case, it was counsel’s submission that the cause of action accrued to the plaintiff on the 10th day of January, 1999 when he wrote a letter to the first defendant to COMPLAIN OF NON-PAYMENT OF HIS REMUNERATION SINCE APPOINTED AS A TRAINER OR MASTER TRAINER BY THE 1ST DEFENDANT, moreso, when there was no reply, no response and no reaction to that letter from the 1st defendant. See paragraph 17 of the plaintiff’s statement of claim. It is trite law that however meritorious a matter might be, once the action is statute barred, no merits can revive or resuscitate it. This was the holding in the case of Edosomwan vs. ACB Ltd at page 478 para. F-G. It was counsel’s submission that in this instant case, the matter is as good as dead and no legal magic can revive or resuscitate it. In urging the court to strike out the action on the strength of the statutory and judicial authorities cited, Counsel to the 1st defendant submitted that the plaintiff did not file his case within the time allowed by the relevant statute i.e. The Limitation Act Cap 522 Laws of the Federation of Nigeria. And this has robbed him of the right of bringing the matter before any Court of Law in Nigeria as his inability to file his suit within the time allowed has removed the right of enforcement and the right to any judicial relief. In opposition, the Claimant on the 27th day of February 2014, filed a 29 paragraph counter affidavit deposed to by Bruno Emere, the Counsel to the Claimant. The Claimant’s Counsel argued on the following issues for determination: 1. Whether this Court has jurisdiction to entertain, adjudicate and determine the matter before him. 2. Whether this matter is statute barred. Claimant’s Counsel submitted that the preliminary objection raised by the applicant on the jurisdiction of this court to entertain this suit is misconceived. Counsel argued that the provision of section 254C of the 1999 Constitution of the Federal Republic of Nigeria as amended in third Alteration 2010 grants this court exclusive jurisdiction over matters of the instant case or nature. Counsel supported his argument with section 254C (a) (b) and (k). Counsel submits that the contractual relationship between the 1st Defendant and the Claimant is that of service, that the matter at hand is a labour matter which this Honourable Court has jurisdiction to entertain, adjudicate and determine. On issue 2, claimant’s counsel argued that it is a long established rule with regards to a claim to a debt or other liquidated sum that even after the right of action become statute barred by lapse of time a subsequent acknowledgement by the debtor of the debt restores the right of action afresh for another 6 years, stating that this is the provision under section 22(3) of the western law which has a general application including Lagos State. Counsel stated that by 5th October, 2007 which is Exhibit G, the defendant acknowledged such an obligation and asked the Claimant to forward all relevant documents for payment. A letter of invitation to Abuja for a meeting to resolve and pay the claimant was also sent to him which is Exhibit G1. Citing the case of SALAKO v LEDB & Anor (1953) 20 NCR 169, Counsel submitted that the limitation law in issue did not apply to case of recovery of land, breach of contract, claim for work and labour done. Counsel urged the Court to uphold the same position and dismiss application. On the 9th day of April 2014 when ruling ought to have been delivered on the substantive motions, the court raised a doubt as regards whether or not it has jurisdiction to entertain the this matter, going by the claims of the Claimant being for debt owed for services rendered vis-à-vis Section 254 (C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Parties were therefore ordered to file written addresses as regards the jurisdiction of this court to entertain this matter and the need to make a case stated to the Court of Appeal in accordance with Section 24(5) of the NIC Act. The 1st defendant’s written address filed in compliance with the order of court was filed on the 8th day of May 2014, but deemed properly filed by order of court on the 10th day of July 2014. Counsel urged the court pursuant to the Evidence Act, to take judicial notice of the proceedings at the Federal High Court Owerri from which this suit was transferred. Counsel restated that the 1st defendant seeks an order of this court striking out this suit ON THE GROUND that the suit is STATUTE BARRED thereby robbing the court of the jurisdiction to entertain same. He went on that Section 24 (3) of the NIC Act which has come into question with respect to the consequential order which this court may make provides that: “No cause or matter shall be struck out……………………………….ON THE GROUND that such cause or matter WAS NOT BROUGHT in the APPROPRIATE COURT in which ought to have been brought and the court before whom such cause or matter is brought may cause the cause or matter to be TRANSFERRED to THE APPROPRIATE JUDICIAL DIVISION OF THE COURT………..” The above section, counsel stated, is explicit. No matter or cause shall be struck out ON THE GROUND that it was not brought in the APPROPRIATE COURT. He said that that is not the reason for which he is seeking the matter to be struck out. Rather, his ground is that the suit is statute barred. Counsel attempted to distinguish the present proceeding from the one envisaged by and provided for in S.24 (3) of the NIC Act, and to distance same from the contemplation of S.24(5) of NICA. Counsel went on that Section 24(3) provides a remedy for a matter not brought in the APPROPRIATE COURT. The remedy is for the court to transfer the suit to the APPROPRIATE JUDICIAL DIVISION of this court. This counsel stated, is purely about venue; and that the issue of venue notwithstanding, the action in itself must be maintainable. It is counsel’s submission that this matter cannot be brought in any court of law in Nigeria because the time for it to be brought before any court in Nigeria has passed since 2006. It cannot be brought in this court or in any other court, therefore the issue of transfer cannot even arise with respect to this action. An action commenced after the expiration of the period stipulated in the Statute of Limitation is not maintainable GOODMILL CO. LTD. vs. CALABAR CEMENT CO. LTD. (2010) ALL NLRP (PT. 544) 34. The matter here is no longer justiciable or maintainable. In POPOOLA vs. DAWODU (2006) ALL NLR PT. 328. The court held at page 704 “no court has jurisdiction to entertain a suit which is caught up by the Statute of Limitation”. In Egbe vs. Adefarasin (No. 2) (1987), NWLR (pt. 47) the S.C held that “a cause of action is said to be statute barred if in respect of it, proceedings CANNOT BE BROUGHT because the period laid down by the limitation law or Act has elapsed”. Counsel submitted that Section 24(3) of the NIC Act envisages a situation where a cause is competent to be brought, “but such cause or matter was not brought in THE APPROPRIATE COURT”. Hence the court may cause such cause or matter to be “TRANSFERRED TO THE APPROPRIATE JUDICIAL DIVISION OF THE (i.e. this) COURT.” According to the 1st defendant, the fact in the present case is different from that envisaged by S. 24(3) of the NIC Act. Here the cause or matter is statute barred; the time for it to be brought or instituted in ANY court has elapsed. There is no APPROPRIATE JUDICIAL DIVISION for it. Section 24(5) is therefore inapplicable here as the matter was not transferred pursuant to subsection (2) or (3) of section 24 as required. According to counsel, this matter was transferred to the National Industrial Court on the application of the plaintiff’s counsel for convenience since the Federal High Court Owerri from where it was transferred could not hear the matter for over one year. It was not transferred on the ground that it was not brought in the appropriate court. Section 24(5) of NICA therefore has no bearing whatsoever to this case. To the 1st defendant, since there is no appropriate court or judicial division to which this matter can be transferred so as to cure the offence as envisaged by S.24(3) and since the matter is statute barred, it can only be struck out. It is no longer justiciable at all. It is founded on a simple contract and therefore “SHALL not be BROUGHT after the expiration of six years from the date on which the cause of action arose” – section 7(1)(a) Limitation Act. That is the ground upon which this court will strike out this matter. NOT that it was not brought in the APPROPRIATE COURT or judicial division as per S. 24(3) of NICA. According to counsel, no party herein has made such a protest and the court lacks jurisdiction to make such a protest or grant a relief not asked for. Counsel referred to provisions of the Federal High Court Act and various High Court Laws which are in pari materia to S. 24(3) of NICA, wherein the word “merely” is used to qualify the GROUND thus: “No cause or matter shall be struck out by the court merely on the ground…………………….” To counsel, the issue being legislated upon, must be less important than jurisdiction, for the word “merely” to have been used. No draftsman or legislature will describe jurisdiction in a matter as “merely”. Once the court has no jurisdiction, the only jurisdiction it has is to strike out a matter. Jurisdiction is a threshold and fundamental issue. It can be raised at any stage of the matter including on appeal, and no amount of delay will deny a party of the right to raise it. Counsel answered in the negative, the question whether the court would have transferred the case to another court if these issues were not raised until at the final addresses. He went on that the court has no power to substitute another ground for counsel, and that the court must rule on the issues raised. Counsel urged the court to strike out the suit since it lacks jurisdiction to entertain same and there is no APPROPRIATE COURT for a cause or action caught up by the Statute of Limitation. Counsel to the Claimant on 7th July, filed his written address in compliance with the order of court. This was deemed as properly filed by order of court on the 10th of July. Counsel raised a lone issue for determination: Whether the court has jurisdiction to adjudicate and determine this matter. In arguing the sole issue, counsel submitted that jurisdiction is the legal power or legal authority that enables a judge to enter into adjudication in a matter before him. It is often circumscribed by the statute. See OBI vs. INEC (2007) 11 NWLR (Pt. 1046) 456. What determines whether a court has jurisdiction to entertain and adjudicate a matter before him was stated by Supreme Court in the case of AMADI vs. F.R.N. (2008) 18 NWLR (Pt. 1119) 259 as follows: a. The court has cognizance of the class of cases involved. b. Proper parties are present in the court c. The point to be decided is within the power of the court d. The court is properly constituted. e. The subject matter of the case is within its jurisdiction f. The matter before the court is initiated by due process of law and upon fulfillment of any condition precedent to exercise of jurisdiction. The claimant’s claim among others things as follows: (a) A declaration of court that there was a valid contract between the 1st defendants and the claimant. (b) A declaration of the court that the claimant validly and legally trained a total number of 2294 trainees at the cost of N6,000 (six thousand naira) only per week under the National Open Apprenticeship Scheme of skill acquisition under the auspices of the 1st defendant from the year 1996 to 2000. (c) A declaration of the court that the 1st defendant is indebted to the claimant, to the total sum N13,776,000.00 (thirteen million, seven hundred and seventy six thousand naira) being amount due and owed to the claimant for training a total of 2204 trainees from the year 1996 – 2000 under National Open Apprenticeship Scheme of skill acquisition under the auspices of the 1st defendant. The jurisdiction of National Industrial Court has been circumscribed and delineated by section 254C(1) of the constitution of the Federal Republic of Nigeria 1999 as amended in third alteration on March 2011. The provision relevant to the issue at hand is paragraphs (a) (b) & (k) of subsection (i) of section 254C and t provides: “Notwithstanding the provision of section 251, 252, 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. Matters relating to or connected with any labour, employment, trade union, industrial relation. b. Relating to or connected with or arising from factories Act, Trade Union Act, Labour Act, employment compensation Act or any other court or Act relation to labour; employment industrial relation. c. Relating to or connected with dispute arising from payment non-payment of salaries, wages, pensions, allowances, benefits or employee/worker etc. Section 7(1)(a)(i) of National Industrial Court Act 2006 provides that the court shall have and exercise exclusive jurisdiction in civil cause and matters. (a) Relating to: Labour, including trade union and industrial relations. According to Counsel for the Claimant, from the claimant’s claim, it is clear that this dispute arose from the contract of service rendered by the claimant to the defendants. The Supreme Court held in the case of NDIC vs. OKEM LTD. (2004) 18 NSCQR 42 at page 48 ratio, 5 on the interpretation of notwithstanding, that when the term notwithstanding is used in a section of a statute, it is meant to exclude an impigning or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself. It follows that in the instant case as used in section 254C (1) of the constitution of 1999 as amended, no provision of that constitution shall be capable of undermining the said section. Exclusive jurisdiction means a court’s power to adjudicate an action or a class of actions, to the exclusion of all other courts. See Obi v. INEC (supra). The Labour Act, Cap 198 Law of the Federation of 1990 under part iv Section 91 interpretation has defined a worker as any person who has entered into a work under contract with an employer whether the contract is for manual or clerical work or is expressed or implied or written and whether it is contract of service of a contract personally to execute any work or labour, such a contract is commonly referred to as contract of service. See the case of S.S. Co. Ltd. vs. Afro Pak Nig. Ltd. (2008) 18 NWLR (Pt. 1118) 77 S.C. The defendants are not contesting the fact that they did not engage the services of the claimant under National Open Apprenticeship Scheme of Skill acquisition programme but rather their contention is that the contract of service between the claimant and defendants is statute barred by virtue of length of time. Counsel submitted that the working relationship between the defendants and the claimant is governed by the Labour Act which is within the jurisdiction of National Industrial Court. It was further held in the case of S.S. Co. Ltd. vs. Afro Pak Nig. Ltd (Supra) that if it is a contract for service as in the instant case at hand the independent contractor gets his payment by way of fees. Counsel submitted finally that the matter before the honourable court is a labour matter which the court has jurisdiction and power to adjudicate by virtue of section 245C of the 1999 constitution as amended, and Section 7 of National Industrial Act 2006. I have carefully considered all the arguments, affidavits and the addresses of counsel. The main issue pertinent to be considered and determined in this ruling is the issue raised by this court on whether the claim of the claimant falls within Section 254C of the 1999 Constitution as to clothe this Court with jurisdiction to hear this matter. Counsels to the parties have addressed me on the issue and I have thoroughly considered the arguments of Counsel along with the case of the claimant and the provisions of section 254C in forming my opinion on the issue. The brief facts of the case as can be deciphered from the Statement of Claim is that the Claimant entered into a contract as a trainer with the 1st defendant under the 1st defendant’s National Open Apprenticeship Scheme of Skill Acquisition Programme. As a result, the 1st defendant sent trainees to the Claimant for training, and between 1996 to 2000, the Claimant had trained for the 1st defendant, a total number of 2204 trainees, at the training cost of N6000 per trainee, thereby bringing the total debt owed to the Claimant to N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only. When the 1st defendant refused to pay the debt after repeated demands, the claimant consequently brought this action seeking these reliefs: 1. A Declaration of Court that there was a valid contract between the 1st Defendant and the Claimant. 2. A Declaration of Court that the Claimant validly and legally trained a total number of 2204 Trainees at the cost of N6,000.00 (six thousand naira) only per Trainee under the National Open Apprenticeship Scheme of Skill Acquisition under the Auspice of the 1st Defendant from the year 1996 to 2000. 3. A Declaration of Court that the 1st Defendant is indebted to the Claimant, to the sum of N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only being amount due and owed for training a total number of 2204 Trainees from year 1996 to 2000 under the National Open Apprenticeship Scheme of Skill Acquisition under the Auspice of the 1st Defendant. 4. An Order of Court mandating the Defendants to pay the Claimant the sum of N13, 776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only as debt due and owed to him for Training 2204 Trainees from 1996 to 2000 under the Auspice of the 1st Defendant. 5. An Order of Court mandating the Defendants to pay the Claimant 10% interest accruing from the said amount of N13, 776,000.00(Thirteen Million, Seven Hundred and Seventy Six Thousand Naira)only per annum from the year 2001 till judgment is given. From the fact of the claimant’s case and the reliefs sought by him, can it be said that his claims falls within the matters these court is constitutionally established to hear and determine? The jurisdiction of the National Industrial Court has been clearly set out in Section 254C of the Constitution of the Federal Republic of Nigeria as amended by the third alteration Act 2010 as follows: 254C (1) Notwithstanding the provisions of section 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 and matters incidental thereto or connected therewith; (b) related to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employee’s Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; (c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters connected therewith or related thereto; (d) relating to or connected with any dispute arising over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employers association or any other matter which the court has jurisdiction to hear and determine; (e) relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom; (f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters; (g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace; (h) relating to, connected with or pertaining to the application or interpretation of international labour standards; (i) connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto; (j) relating to the determination of any question as to the interpretation and application of any – (i) collective agreement; (ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute; (iii) award or judgment of the court; (iv) term of settlement of any trade dispute as may be recorded in a memorandum of settlement; (v) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place; (vi) disputes relating to or connected with any personnel matter arising from the free trade zone in the Federation or any part thereof; (k) relating to or connected with disputes arising from payment or non- payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any civil or public servant in any part of the Federation and matters incidental thereto; (l) relating to – (i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith; (ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and (iii) such other jurisdictions, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly; (m) relating to or connected with the registration of collective agreements From the submission of Counsel and indeed the content of the Claim, it is not in dispute that this claim is for money owed to the Claimant which debt did not arise from a contract of employment. Particularly, a reading of the averments in paragraphs 6, 7, 8, 9 and 10 of the Claimant’s statement of claim will show that the facts constituting the cause of action in this suit are purely of the nature of a simple contract. Indeed, Counsel to the 1st defendant has in his address in support of the motion, argued that by the provision of Section 8 (1) (a) of Cap L67 Laws of Lagos State 2005, any action founded on simple contract must be instituted within 6 years from the date the cause of action accrues. Counsel to the Claimant has in his address defined jurisdiction as the legal power or legal authority that enables a judge to enter into adjudication in a matter before him. This suit arose from a simple contract between the Claimant and the 1st defendant, wherein the Claimant rendered training services to the 1st defendant by training a total number of 2204 trainees for the 1st defendant between 1996 and 2000, at the training cost of N6000 per trainee, thereby bringing the total debt owed to the Claimant to N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only. I cannot see any element in the claim connecting it with the matters specified in Section 254C of the 1999 Constitution. In my view, this case does not fall within the category of matters covered by Section 254C (1) a, b and k as erroneously submitted by the Claimant’s counsel, being 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 and matters incidental thereto or connected therewith; (b) related to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employee’s Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; (k) relating to or connected with disputes arising from payment or non- payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any civil or public servant in any part of the Federation and matters incidental thereto; It is my holding that the relationship the claimant had with the 1st defendant is not one of employment nor is it connected with labour matters. Rather, what exists between the parties is a simple contract, for which the Claimant seeks to recover a debt owed to him for services he has rendered to the 1st defendant. It is therefore a Contract for Services which is based on a contractual relationship as agreed between the parties, as opposed to a Contract of Service which is an employment issue. This Court has no jurisdiction to recover debts or liquidated money demands which arise from simple contracts such as this instant case. It is 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 and African Newspaper & ors v. FRN [1985] 2 NWLR (Pt. 6) 137 SC, 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. Having come to the conclusion that the subject matter of this case is outside the jurisdiction of this court, I cannot continue to exercise jurisdiction to hear this matter. Consequently, I decline jurisdiction and hold that this court is not competent to take any further step in this matter including pronouncing on the preliminary objections of the defendants, as this matter falls outside the scope of my jurisdiction as provided in Section 254C(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended). In determining the proper order to make in the circumstance, Section 24 (2) of the NIC Act makes it mandatory that the matter shall not be struck out on account of having been commenced at the wrong forum. If the matter was commenced here, it would have been proper to transfer it to a court of competent jurisdiction. But this matter was transferred from the Federal High Court. The question that then arises in the circumstance is “what is the proper order to make?” Section 24(5) of the National Industrial Court Act provides thus: “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 above provision makes it mandatory to hear counsel on behalf of the parties, before stating a case for the opinion of the Court of Appeal. I have considered the submissions of counsels in their written addresses on this issue. 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. It is my opinion that in view of section 254C (1) of the 1999 constitution and the claims of the claimant before this court, it is not this court that should hear this case but the Federal High Court from which this matter was transferred. 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 Federal High Court sitting at Owerri and so I cannot sit on appeal over it by re-transferring the case back to it. 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 – In an action for recovery of debt wherein, pursuant to a contract for services between the 1st Defendant and the Claimant whereby the Claimant trained a total number of 2204 Trainees at the cost of N6,000.00 (six thousand naira) only per Trainee under the 1st defendant’s National Open Apprenticeship Scheme of Skill Acquisition from the year 1996 to 2000, whereby the Claimant claims from the defendants, the sum of N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only, being the amount due and owed to the Claimant for training the said 2204 Trainees from year 1996 to 2000 under the 1st defendant’s National Open Apprenticeship Scheme of Skill Acquisition. Does jurisdiction lie with the National Industrial Court or the Federal High Court? Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge IN THE COURT OF APPEAL IN THE OWERRI DIVISION HOLDEN AT OWERRI CASE STATED ON A POINT OF LAW FOR THE OPINION OF THE COURT OF APPEAL PURSUANT TO SECTION 24(5) OF THE NATIONAL INDUSTRIAL COURT ACT 2006 BETWEEN ENGR. JUDE ONONIWU (Trading under name of Judeson Chemical and Engineering Company Nigeria) AND 1. National Directorate of Employment 2. Federal Ministry of Labour and Productivity This is a transferred matter from the Federal High Court, Owerri Division, sitting at Owerri. The claimants had taken up against the defendants a writ of summons dated and filed on 27th January 2012. The claims of the claimants are for the following reliefs – 1. A Declaration of Court that there was a valid contract between the 1st Defendant and the Claimant. 2. A Declaration of Court that the Claimant validly and legally trained a total number of 2204 Trainees at the cost of N6,000.00 (six thousand naira) only per Trainee under the National Open Apprenticeship Scheme of Skill Acquisition under the Auspice of the 1st Defendant from the year 1996 to 2000. 3. A Declaration of Court that the 1st Defendant is indebted to the Claimant, to the sum of N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only being amount due and owed for training a total number of 2204 Trainees from year 1996 to 2000 under the National Open Apprenticeship Scheme of Skill Acquisition under the Auspice of the 1st Defendant. 4. An Order of Court mandating the Defendants to pay the Claimant the sum of N13, 776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only as debt due and owed to him for Training 2204 Trainees from 1996 to 2000 under the Auspice of the 1st Defendant. 5. An Order of Court mandating the Defendants to pay the Claimant 10% interest accruing from the said amount of N13, 776,000.00(Thirteen Million, Seven Hundred and Seventy Six Thousand Naira)only per annum from the year 2001 till judgment is given. The claimants alleged that – The Claimant entered into a contract as a trainer with the 1st defendant under the 1st defendant’s National Open Apprenticeship Scheme of Skill Acquisition Programme. As a result, the 1st defendant sent trainees to the Claimant for training, and between 1996 to 2000, the Claimant had trained for the 1st defendant, a total number of 2204 trainees, at the training cost of N6000 per trainee, thereby bringing the total debt owed to the Claimant to N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only. When the 1st defendant refused to pay the debt after repeated demands, the claimant consequently brought this action seeking these reliefs The defendants answered as follows – 1. The defendants denied the averments of the claimants. 2. The defendants sought an Order of the Court striking out the suit for want of jurisdiction on the ground that the suit is statute barred thereby robbing the Court of the jurisdiction to entertain same. 3. That the Claimant’s cause of action accrued in year 2000 when the Claimant completed the training but was not paid by the 1st defendant. The Claimant instituted the action on the 22nd day of January, 2012, twelve years after the cause of action accrued. 4. That the relationship between the Claimant and the 1st defendant was a simple contract and the action ought to have been brought within 6 years as prescribed by the limitation Laws of Lagos State. Having brought the action after 6 years from date of accrual of cause of action therefore the suit is statute barred and unmaintainable and the Court lacks the jurisdiction to entertain same. The claimant replied that – 1. The provision of section 254C of the 1999 Constitution of the Federal Republic of Nigeria as amended in third Alteration 2010 grants this court exclusive jurisdiction over matters of the instant case or nature. 2. The contractual relationship between the 1st Defendant and the Claimant is that of service, and that the matter at hand is a labour matter which the National Industrial Court has jurisdiction to entertain, adjudicate and determine. 3. That it is a long established rule with regards to a claim to a debt or other liquidated sum that even after the right of action become statute barred by lapse of time a subsequent acknowledgement by the debtor of the debt restores the right of action afresh for another 6 years, stating that this is the provision under section 22(3) of the western law which has a general application including Lagos State. 4. That by 5th October, 2007, the defendant acknowledged such an obligation and asked the Claimant to forward all relevant documents for payment. After hearing the parties and the arguments adduced on each side, the court found that the following matters were established as facts – 1. That the Claimant entered into a contract as a trainer with the 1st defendant under the 1st defendant’s National Open Apprenticeship Scheme of Skill Acquisition Programme. As a result, the 1st defendant sent trainees to the Claimant for training, and between 1996 to 2000, the Claimant had trained for the 1st defendant, a total number of 2204 trainees, at the training cost of N6000 per trainee, thereby bringing the total debt owed to the Claimant to N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only. 2. When the 1st defendant refused to pay the debt after repeated demands, the claimant consequently brought this action seeking the above stated reliefs. The following question as to the interpretation of the Constitution arose in these proceedings, namely – In an action for recovery of debt wherein, pursuant to a contract for services between the 1st Defendant and the Claimant whereby the Claimant trained a total number of 2204 Trainees at the cost of N6,000.00 (six thousand naira) only per Trainee under the 1st defendant’s National Open Apprenticeship Scheme of Skill Acquisition from the year 1996 to 2000, and whereby the Claimant claims from the defendants, the sum of N13,776,000.00 (Thirteen Million, Seven Hundred and Seventy Six Thousand Naira) only, being the amount due and owed to the Claimant for training the said 2204 Trainees from year 1996 to 2000 under the 1st defendant’s National Open Apprenticeship Scheme of Skill Acquisition, does jurisdiction lie with the National Industrial Court or the Federal High Court? The above stated question of law is referred for the decision of the Court of Appeal. Dated at the National Industrial Court, Owerri Division this 24th day of September 2014. ……………………………… Hon. Justice O. Y. Anuwe Judge