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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 Dated: February 24, 2015 SUIT NO. NICN/OW/17/2014 Between Mr. Francis Ekechi - Claimant And 1. Legacy Pension Managers Ltd. 2. National Pension Commission Defendants Representation: Y. A. Omenka Esq. for the 1st Defendant C. J. Nze for 2nd Defendants/Applicants RULING/JUDGMENT This suit was commenced by way of originating summons filed at the Federal High Court Owerri on the 24th day of July 2012 wherein the Claimant sought against the defendants as follows: a. An order of the Honourable Court directing the 1st and 2nd defendants to refund the plaintiff’s contributions including the interests thereof, made under the mandatory contributory pension scheme vide the plaintiff’s retirement savings account pin No PEN100348126463 managed by the 1st defendant. b. Two Million Naira (N2,000,000.00) only, being general damages jointly and severally against the defendants. c. 15% interest on the total contribution from 10/10/2009 till judgment is given in this matter. d. 10% interest on the judgment sum from the date of judgment till the judgment sum is paid. The suit was transferred to this court by an order of the Federal High Court Owerri made on the 22nd day of May 2013. By a letter dated the 9th day of December 2013, the Registrar of the Federal High Court Owerri transmitted the case file to this Court. This was duly received in the registry of this court on the 27th day of February 2014. By a notice of Preliminary objection filed on the 24th day of September 2014, the 1st defendant prays this court for an order striking out this suit in limine for lack of jurisdiction. The grounds upon which this preliminary objection is brought are as follows: 1. That the subject matter of this suit relates to and is connected with dispute arising from refund of pension contribution of the Plaintiff/Respondent of which the said Plaintiff/Respondent has since commenced making regular monthly programmed withdrawals as stipulated by Section 4 of the Pension Reform Act 2004 after this case was transferred to this Honourable Court from the Federal High Court Owerri. 2. That this honourable court lacks the jurisdiction to adjudicate and determine claims of the plaintiff/respondent in the suit, the subject matter having being seriously altered and fizzled by the same plaintiff/respondent as the law will not allow the plaintiff to eat his cake and have it. 3. That the current circumstance of this case has become such that the court is being invited to look into a mere hypothetical case as a result of tampering and/or fizzing of its initial subject matter which has made the execution of any possible judgment therefrom futile and a mission impossible. 4. The current circumstance of this case has also made the continued pendency of this suit in this court and the adjudication of this matter by this court, a mere Academic Exercise and a waste of precious time of the court. The motion is supported by an affidavit of 9 paragraphs deposed to by one Franca Onyekwere, upon which Counsel placed reliance. In the accompanying written address, counsel for the applicant nominated the following three issues for the court’s determination: 1. Whether this case has become a mere academic exercise by virtue of the tampering and/or fizzling of the subject matters of this suit by the plaintiff/respondent? 2. Whether this honourable court lacks the jurisdiction to adjudicate this suit as a result of the tampering and/or fizzling of the subject matters of this suit plaintiff/respondent? 3. Whether this suit should be dismissed in limine? In arguing issue one, whether this case has become a mere academic exercise by virtue of the tampering and/or fizzling of the subject matters of this suit by the plaintiff/respondent, counsel submitted that this suit has become a mere academic exercise. In AG. Federation vs. ANPP & Ors. (2004) LRCN 2671 AT 2694. A suit was held to have become a mere academic exercise when and if. “There cannot be said to be a live issue in a litigation, if what is presented to the court for a decision, when decided cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of a changed circumstance since after the litigation started, so that in case of an appeal the appeal may become academic at the time it is due for hearing”. The court held in Agbakoba vs. INEC & Ors. (2008) 18 NWLR (Pt. 1119) 489, that a suit is academic where it is merely theoretical and of no practical utilitarian values to the party raising the issue even if the judgment is given in its favour. It was the submission of Counsel that the subject matter of this suit or the fundamental nature of the reliefs sought therein, having being altered, changed and being constantly and regularly fizzled and diminished by the plaintiff/applicant as deposed in paragraph 5 (viii) and 6 (a) of the supporting affidavit, since after the this suit was transferred from the Federal High Court Owerri to this court, have made this suit become a mere academic exercise as held in AG Federation vs. ANPP (Supra). Counsel submitted further that this suit has lost its utilitarian value as judgment therefrom will not affect the parties especially the plaintiff one way or the other, the subject matter having being fundamentally altered by the same plaintiff in obedience and/or compliance to Section 4 of the Pension Reform Act which provides that: 4 (1) A holder of a retirement saving account upon retirement or attaining the age of 50 years, whichever is later, shall utilize the balance standing to the credit of his retirement savings account for the following benefits. (a) Programmed monthly or quarterly withdrawals calculated on the basis of an expected life span. The plaintiff/respondent has been making the regular withdrawals starting from 13/12/2103 after the transfer of this suit from the Federal High Court Owerri. The latest being on 15/8/2014 before the filing of this application. Counsel urged the court to uphold this submission. On issue two whether this Court lacks the jurisdiction to adjudicate this suit as a result of the tampering and/or fizzling of the subject matter of this suit by the plaintiff/respondent, Counsel submitted that the jurisdiction of this court to determine this suit has been lost and/or has fizzled away by the Claimant’s move, commencing the monthly programmed withdrawal of his Pension Contribution in the management of the 1st defendant/applicant without waiting for the determination of this suit after same was transferred to this court from the Federal High Court Owerri. The action of the plaintiff/respondent amounts to collecting the trophy while the competition is still on, thereby making the competition a mere child’s play. Such should be frowned at by the court. The above submission is predicated on the decision in in AG. Federation vs. Chief Patrick Ibikunle Fafunnwa Onikoyi & Ors (2006) 18 NWLR (Pt. 1010) Pg. 51 where it was held that: “It is now a settled principle that courts do not act in vain nor do they embark on an academic exercise as they are not Academic Institutions. Therefore, where an issue is brought to the court in … an appeal, application or any other process before it and it is merely hypothetical and calling for academic exercise which cannot be enforced, such an issue or question is not only frowned at by the said court, but it should refrain from embarking into such a purposeless exercise” In BALA A. BAKO vs. INEC & ORS (2013) LPELR 20727 CA. the court held thus: “It is settled that where in the cause of a proceeding or an appeal, election petition inclusive, there is an intervening event or episode cutting at the foundation or root of a case or an appeal and the vested rights of the Claimant or a Petitioner or Appellant, the court concerned will do well to terminate or end the proceeding where it is clear that the ultimate result will no longer serve the end of justice even if the Claimant or the Appellant wins”. In arguing issue three whether this suit should be dismissed in Limine, it was the submission of counsel for the applicant based on the earlier arguments in respect of issues one and two and based on the legal principles upheld in AG Federation vs. ANPP (Supra), AG. Federation vs. Fafunnwa Onikoyi, (Supra), Bala A Bako vs. INEC & Ors. (Supra) and Agbakoba vs. INEC & Ors (Supra), that this suit should be dismissed in its entirety, its subject matter having and/or the circumstance of the nature of its sought reliefs having been changed, altered and is constantly being fizzled and diminished by the plaintiff on a monthly basis thereby making the adjudication of the case by this court a mere academic exercise and an exercise in futility. According to Counsel, the incompetence of this suit is obvious, having regard to the fact and prevailing circumstances of the claim as deposed in the supporting affidavit especially paragraphs 5 and 6. To Counsel, there is no doubt therefore, that this suit is an academic exercise. This court has a duty to prevent an uncanny effort or attempt of the plaintiff to seek access to court for a nebulous or hypothetical matter, as he cannot eat his cake and have it. Counsel urged the court to strike out this suit in Limine in the interest of substantial justice in view of the grounds for this application; and also because this suit as it stands presently, is an abuse of the process court. The simple and lone issue, which in my view, is to be determined in this application is whether this court lacks jurisdiction to hear and determine this suit. The facts relied on by the applicant for contending that this court is bereft of jurisdiction to determine this suit is as contained in the 9 paragraphs affidavit filed in support of the application. It is deposed therein that the claimant/respondent sued the defendants before the Federal High Court for the refund of his pension contribution including interest thereon and by an order of the Federal High Court, this matter was transferred to this court on 22/5/13. After the transfer of the matter to this court, the claimant/respondent approached the applicant/1st defendant for settlement and he accepted to commence monthly withdrawals from his pension contribution. During the settlement, the 2nd defendant wrote a letter dated 13th November 2013 to the applicant/1st defendants approving the request for some retirees, including the claimant/respondent, to commence monthly withdrawals of their pension contributions. The claimant/respondent has thus been making monthly withdrawals from his retirement savings account since 13/12/13. On the basis of these facts, the applicant’s counsel submitted that this court lacks jurisdiction to adjudicate and determine the claims of the claimant/respondent because the subject matter have been seriously altered and fizzled by the claimant/respondent. To the applicant’s counsel, this case has become a mere academic exercise, hence; the court should strike out the suit for lack of jurisdiction. I must mention here that the claimant/respondent did not file a counter affidavit or any process whatsoever to oppose the application. However, the ground of the Preliminary objection being one of law, I shall resolve the issue for determination on the basis of the processes before me in this suit and the laws applicable to the issue. It is a fundamental principle of law that jurisdiction of a Court of law is determined by the Plaintiff's claim. That is to say, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court. See IZENKWE vs. NNADOZIE 14 WACA 361 at 363; ADEYEMI vs. OPEYORI (1976) 9- 10 S.C. 51; WESTERN STEEL WORKS vs. IRON & STEEL WORKERS (1987) 1 N.W.L.R. (Pt. 49) 284. In INAKOJU vs. ADELEKE (2007) 4 N.W.L.R. (Pt. 1025) 427 at 588 – 589, Tobi JSC (as then was) expounded the law on how jurisdiction of a trial Court is determined when he held- "In determination of whether or not a Court has jurisdiction, the Court process to be used is the pleadings of the Plaintiff, which is the statement of claim; it is the case put up by the Plaintiff that determines the jurisdiction of the Court." Taking the foregoing authorities into consideration, it is quite plain that in resolving the issue of jurisdiction in the instant case, the Court processes to be examined are the Originating summons, with which this suit was commenced at the Federal High Court before it was transferred to this court, and the affidavit in support containing the cause of action and the reliefs sought. I have earlier, at the beginning of this ruling set out the reliefs sought by the claimant in this suit. From the facts of the claimants’ case, his dispute with the defendants is with regards to the payment or refund of his pension contributions. The subject matters on which this court can exercise jurisdiction is as contained in section 254-C of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Subsection 1 (k) thereof provides that the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- “(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 employee, worker, political or public office holder, judicial officer or any civil or public servant he any part of the Federation and matters incidental thereto.” It is therefore clear from the above provision that the case of the claimant comes within the jurisdiction of this court. This finding apart, the relief sought by the applicant in this Preliminary objection is for this court to strike out this suit on the ground that this court lacks jurisdiction to determine the suit. The applicant’s reason for urging this court to decline jurisdiction is that the claimant/respondent has now commenced withdrawal from his retirement savings account. Does this reason affect the jurisdiction of this court in this suit? It is a well settled principle of law that a court is said to have jurisdiction and therefore competent to determine a suit when:- a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other. b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and c) The case comes before a court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. See MADUKOLU vs. NKEMDILIM (1962) All N.L.R. (Pt. 3) 581 at 589 - 590; APADI vs. BANUSO (2008) 13 NWLR (Pt. 1103) 204 at 219; DREXEL ENERGY AND NATURAL RESOURCES LTD vs. TRANS INTERNATIONAL BANK LTD LER [2008] SC 214/2002 at PAGE 11. These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the court the jurisdiction to hear and determine the suit. In order words, whether or not a court has jurisdiction to determine a matter is determined only on the basis of these pre-conditions. The pertinent question to be answered in this application is whether any of these pre-conditions is absent or not fulfilled in this suit as to disentitle this court from assuming jurisdiction on the matter? Applying the above guiding pre-conditions on the issue of jurisdiction of court to the case at hand, it is not difficult to see that the applicant’s quarrel in this application is not that any of these conditions have not been complied with. I find it has no problem whatsoever with the Constitution of this Court or the qualification of myself presiding over the court. The applicant has also not raised any cloud as to the requirement that the case of the claimant was brought before the Court upon fulfillment of a condition precedent to the exercise of jurisdiction or that this court has no jurisdiction over the subject matter of the suit. In fact, I have earlier resolved in this ruling that the subject matter of this suit is within the jurisdiction of this court. If the applicant is not disputing compliance with any of the pre-conditions, it thus means that all the pre-conditions necessary for this court to assume jurisdiction in this suit are all present and fulfilled. Therefore, I do not see how the allegation that the claimant/respondent has commenced withdrawal from his retirement savings account constitutes a bar to the exercise of the court’s jurisdiction in this suit. This matter had been filed before the parties went into the alleged negotiation where it was agreed for the claimant to commence monthly withdrawals from his pension contributions. Settlement, as has been done by the parties, is allowed in litigation. However, that the complainant has now commenced withdrawals from his retirement savings account may be a defence to his claims as presently constituted or may affect the grant of the reliefs sought by him but it definitely does not affect the jurisdiction of this court to hear and determine the suit. From the affidavit in support of the application, it appears the parties have settled and the claimant is already making withdrawals from his pension contribution. A different process will apply to such situation. The parties may elect to file terms of settlement or apply to withdraw or discontinue the suit. But to rely on the fact that the claimant has started withdrawing from his pension contribution to contend that the court does not have jurisdiction is, to say the least, strange and ridiculous. I also find the cases cited by the applicant’s counsel to support his arguments inapplicable to the facts and circumstances of this suit. In the final analysis, I hold that this court has jurisdiction to entertain and determine the claimant’s suit. As I have pointed earlier, the fact that the claimant has commenced withdrawal from his pension contribution may, at best, be relied on in at the trial by the applicant to found a defence to the claimant’s case. Consequently, the Preliminary objection fails and it is hereby dismissed. During the hearing of this application on 9/12/2014, the counsel to the 2nd defendant, C.J Eze esq., while aligning himself with the 1st defendant/applicant’s preliminary objection, also urged this court to strike out the suit for want of diligent prosecution. The said Counsel’s oral application resulted from the absence of the claimant or his counsel in court on the said date notwithstanding that a hearing notice was served on the claimant’s counsel. From my record, neither the claimant nor his counsel was in court on 17/11/2014 prompting this court to order service of hearing notice on the claimant, communicating the date for hearing of the preliminary objection being 9th day of December 2014. As shown on page 75 of the case file, hearing notice was served on the Claimant’s counsel and shown as having been received by one Linda Chukwuekezie, a secretary in the chambers of Stanley Chidozie Imo & Co. Again, neither the Claimant nor his Counsel was present in court on the 9th day of December 2014, and neither did they file any process opposing the preliminary objection. The Court then proceeded to hear the applicants. The matter has again come up today for ruling. Again, neither the claimant nor his counsel is in court. The claimant and his counsel have now been absent from court in 3 straight proceedings. It thus appears that the Claimant is no longer interested in the prosecution of this matter. This Court cannot continue to keep guard on the case or burden the defendants to continue to attend to the case when the claimant, who ordinarily should be more concerned with the prosecution of the case, has decided to stay away from court. Consequently, this court is left with no choice than to grant the application made by the 2nd defendant’s counsel. This suit is struck out for reason of the claimant’s failure to diligently prosecute his case. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge OR The claimant’s counsel is however present in court today. His presence could be taken to mean that the claimant is now prepared to prosecute his case with due diligence. The application by the 2nd defendant’s counsel is therefore refused. The case will proceed to hearing. No order as to cost.