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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 12, 2015 SUIT NO. NICN/OW/41/2014 Between Rev. Dr. V. C. Iwu - Claimant And 1. Board of Trustees Assemblies of God Nigeria 2. Rev. Dr. M. O. Ashiele 3. Rev. J. I. Odionyema Ph.d 4. Rev. A. N. Nwachukwu Defendants 5. Rev. G. Njoku 6. Rev. C. I. Ekwueme 7. Rev. Dr. E. C. Nwaike 8. Rev. S. S. S. Ozonyiri Representation Mbakwe-Obi, with him, Chizoba Okpara (Mrs.), A. N. Alaneme (Mrs.) and Emeka Ihejirika for the Claimants A. A. Onyeji, with him, E. A. Oduagwu for the Defendants RULING/JUDGMENT The claimant took up a complaint dated and filed on the 10th day of April 2014 claiming against the defendants jointly and severally as follows – (a) A declaration that the claimant is still the Rector of the defendants Seminary (Bethel Seminary Nekede) situate at Nekede within jurisdiction. (b) A declaration that the purported trial of the claimant by the 2nd – 8th defendants inspite of his protest of their bias is a breach of his fundamental human rights. (c) A declaration that the invitation to the claimant to appear before the 2nd – 8th defendants on charges of immoral advances was one of the issues settled in NICN/OW/02/2014 or in the alternative constitutes a criminal trial by an authorized body of persons. (d) An order of court declaring as illegal the action of the 2nd – 8th defendants in locking the office of the claimant while he was still answering to their invitation on 7-4-2014. (e) An order of injunction restraining the defendants by themselves or through any agency from declaring the office of the claimant vacant or appointing any person to the office of the Rector Bethel Seminary Nekede. (f) Payment of N50,000,000.00 damages for locking out the claimant and wrongful detention of some goods in his office. By a Motion on Notice dated the 2nd day of May and filed on the 5th day of May 2014, the Claimant sought the following orders: a. An order of court on the defendants to vacate the office of the claimant which they broke into on the 12th day of April 2014 pending the determination of the suit. b. An order restraining the defendants from installing or assigning anybody to the office of the Claimant pending the determination of this suit. c. An order of court restraining the defendants from announcing to the general assembly of the church to be held on 18th April 2014 and thereafter the alleged illegal dismissal of the Claimant from the ministry pending the determination of the suit. d. An order of court authorizing the claimant to enter into his office (office of the Rector Bethel Seminary Nekede) and occupy same pending the determination of this suit. The motion is supported by a 20 paragraph affidavit deposed to by the Claimant himself. The Claimant/Applicant raised a sole issue for the determination of the Court, which is: whether the applicant is entitled to the reliefs sought. In arguing the sole issue, it was the submission of the claimant that in an application of this nature, the applicant is enjoined to show among other rights: i. That there is a serious issue to be tried ii. Preservation of the Res or status quo iii. Special circumstances warranting the grant of the application iv. Balance of convenience. Counsel submitted that there is a serious triable issue in this matter, which is whether the defendants can validly terminate, dismiss and suspend the applicant as the rector of Bethel Seminary School Nekede and as well as a member of the ministry, based on reasons they gave in their letter of April 7th 2014 marked Exhibit ‘G’ and without giving him the opportunity to defend himself. He said that it is the affidavit in support of the motion that should disclose whether there is a substantial question to be resolved at the trial of the substantive suit. See Obioha vs. Military Administrator Imo State (1998) 10 NWLR (Pt. 569) 205 at pp. 210-211. Counsel went on that the applicant was not given a fair hearing during the course of investigation and defence to the allegation. The claimant had earlier raised the issue of bias on the part of the defendants who have constituted themselves as judges in their own cause. This is against a pillar of natural justice “Nemo Judex in causa sua”. In this particular instance, the applicant was invited by the respondents on 7th April 2014. They gave him a four paged letter to read and on insisting that he be given opportunity to react to the letter (Exhibit “E”) they there and then terminated his appointment. They have denied him fair hearing as provided in Chapter IV Section 36(1) of the 1999 constitution as amended. Counsel cited the Privy Council case of Kanda vs. Govt. of Malaya (1962) AC 322 at 337 where Lord Denning emphasized fair hearing as thus: “If the right to be heard is to be a real right worth anything; it must carry with it a right in the accused man to know the law which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them”. According to counsel for the claimant, in the instant case the applicant was not even allowed to read the statement against him by one Miss Rose Anyanwu. Counsel referred the court to the substantive suit which gave the jurisdictional link to the Claimant’s motion and all the paragraphs of the affidavit together with the exhibits annexed therein, and submitted that in addition to the seriousness of this suit, the applicant has a legal right, which entitles him to secure this grant of injunction at this stage. The essence of this grant is to protect the existing legal right or recognizable right of the applicant from unlawful invasion by the respondents. Failure to grant this application would amount to rendering any subsequent nugatory as the respondent would have completed the illegal acts which he is trying to prevent. He further posits that, in the consideration of an application for an interlocutory injunction, the court must consider the affidavit evidence before it to determine whether it discloses a right, which the applicant makes to protect and whether the evidence sufficiently discloses a prima facie one to justify granting the said injunction. See: Onyeson vs. Nnebedum (1992) 3 NWLR (Pt. 229) 315. All that the applicant seeks to achieve is to preserve the ‘status quo’ pending the determination of this suit. On the issue of Balance of Convenience, Counsel submitted that the balance of convenience is in favour of the applicant as the respondents have nothing to lose if they wait until the determination of this suit. On the part of the applicant, he has everything to lose including his reputation as a Rector as well as continuity in his service etc. The applicant is prepared to offer an undertaking in the event this application becomes frivolous. The applicant is being removed as a Rector on grounds alien to the system. He was not given any notice, was not paid any salary in lieu of notice. These irregularities are best tested in court before any legitimate action can be taken by the respondents. In W.A.O.S. vs. Pelfaio Ltd. (1994) 1 NWLR (Pt. 319) 104, the court held that the balance of convenience is in favour of the party in possession in land cases. In the same vein it is counsel’s submission that the balance of convenience is in favour of the party who is already enjoying the position as the Rector of the School in accordance with the principle of Natural Justice and respect to rule of law and due process. He urged the court to grant the application. In the defendants/respondents’ written address in opposition to the Claimant’s motion, Counsel recalled the brief facts of the case as follows: The claimants/applicant was a minister/pastor in the Assemblies of God Church Owerri District, but was posted to Bethel Seminary School Nekede to be the Rector in 2011 to replace Rev. Okechukwu Amadi who was transferred to Mechanic Village Church. The defendants/respondents are the presbyters of the church in charge of Administration and Management of the church, who are also responsible for discipline of member/members of minsters/pastors who go contrary to the constitution and Bye-law of the church. That sometime in December, 2013 the presbytery defendants/respondents were petitioned by one Miss Rose Anyanwu the secretary of the former Rector claimant/applicant of his incessant immoral advances to her, which is inimical to the office of a minister/pastor/Rector in a seminary school. The Defendants/Respondents in exercise of their duties caused a letter of invitation to be made to the claimant/applicant through the 3rd Respondent (Exhibit C.A. 4) to respond to the allegation and clear himself from the allegation. But instead of the Claimant/Applicant to defend and/or deny the allegation made against him by his secretary Exhibit CA.3, and repeated in his presence before the presbyter, he rather threatened a court action and intimidated the defendants with a reply from his lawyers Exhibit C.A5. The refusal of the Claimant/Applicant to respond and/or deny the allegation made against him, was viewed as an admission, hence he was disciplined, dismissed as a minister and suspended as a member in line with Constitution of the church. That upon the pronouncement of the disciplinary action against the Claimant/Applicant, he quickly moved to the office of the Rector, where official document and exams materials of the school was kept, locked it up and disappeared with the key. Defendants/Respondents in their deposition averred that the act of the Claimant/Applicant nearly truncated the future of the final year students who were writing their WAEC final exams. That it was through the Order of Court that the office of the Rector was opened to enable the students continue their final exams. Exhibit C.A.6 shows that upon the dismissal of the former Rector Claimant/Applicant as a minister, on the 7th April 2014, the defendants immediately directed the Vice Principal Administration to take over as Acting Rector to ensure that students who were taking their WAEC final examination continued and completed their exams. On the 14th April 2014, Claimant/Applicant filed this motion in this court for the orders as appeared on the motion papers and affidavit in support of the motion as presented before your lordship to support the experts application upon which the Honourable Court had and granted Order to maintain the status quo, hence the Defendants/Respondents filed their counter affidavit to challenge the order and ask the Honourable Court to set it aside. From the facts distilled above, the Defendants/Respondents nominated Two Issues for determination viz: 1. Whether there is any urgency to warrant the grant of interim order made on the 29th April 2014. If the answer is in the negative, 2. Whether the Applicant is entitled to the reliefs sought in this suit and in this court. In arguing issues 1 and 2 together, it was the submission of counsel to the defendants that a community reading of the substantive suit, the reliefs sought in the motion paper, affidavit in support of the motion and the counter affidavit of the Defendants/Respondents will disclose only the conclusion that there is no urgency to warrant the exparte order made on 29th April 2014. The dismissal of the applicant took place on 7th April 2014. On the 8th April 2014 the Acting rector took over. On the 10th of April 2014 the office the Rector was locked up by the former Rector, which was opened by the Order of Court. On 16th April, the applicant’s Counsel in a letter written to the defendants/respondents disclosed that he filed actions on 14th April 2014 which indicates that before the filing of this action on the 14th April 2014, the act which the applicant is seeking to restrain has become a completed Act, but he went ahead and push for the grant of exparte order on the 29th April 2014 when there was no urgency or threat to the life and property of applicant. It is the submission of counsel to the defendants that there was no urgency that requires the application and/or the order made exparte on the 29th April 2014. In the case of U.T.B. Ltd vs. Doimetsch Pharm Ltd. (2007) 16 NWLR (Pt. 1061) 520 a situation justifying urgency for the grant of interim order was stated by Per Onnoghen J.S.C in pp. 18 – 19 para. G –A. It is now relevant in determining urgency justifying the grant of exparte interim order of injunction is the time between the happening of the event which is sought to be restrained and the date the application for injunction could be heard if taken after due notice to the other side. See also Kotoye vs. CBN (1989) 1 NWLR (Pt. 98) 419. Counsel submitted that there was no urgency that required the moving of the court to grant the exparte order made on the 29th April 2014. The court was urged to set it aside. The applicant who made the application was aware that his reliefs on the motion papers are now a completed Act. Counsel submitted that once an act sought to be restrained is completed, an injunction cannot be a remedy for it because the status quo to be maintained is the situation as it exists at the time of filing the stage when no further activity can be restrained See: Adewale vs. Gov. Ekiti State (2007) 2 NWLR (Pt. 1019) 634 para. F – 9; (CA) Adewale vs. Adetimo (1996) 2 NWLR (Pt. 431) 391; Aduate Ludunni vs. Kukoyi & Ors. (1972) NWLR (Pt. 1) 133 @ 133; Amachere vs. International Cigarette Company Ltd. & Anor (1994) 4 NWLR (Pt. 118) 686. From the totality of the affidavit in support of the applicant’s motion, there was no paragraph in his affidavit where he disclosed any legal right in this matter he is therefore not entitled to any of the reliefs sought especially when the jurisdiction of the court has been challenged. Counsel urged the court to set aside the application made exparte and refuse the reliefs on the motion on notice. The Claimant/Applicant filed a further affidavit and further address wherein he raised the following issues for determination: (i) Whether the services rendered by the applicant was a voluntary service. (ii) Whether the applicant’s appointment was terminated according to law. (iii) Whether the reliefs sought for have been overtaken by event. In arguing the first issue, counsel pointed out that this issue did not arise when the claimant filed the main motion. To counsel, it is shocking that the respondents alleged that the services rendered by the applicant was a voluntary service. He referred to paragraphs 5 and 6 of the Claimant’s further affidavit and submitted that the applicant was paid every month like every other worker or teacher in the school. He referred further to Exhibit A – B showing the payment schedule which every worker including the applicant signs at the end of every month before his salary is paid to him. The school Bursar keeps custody of the book/ledger. It is the Claimant’s submission that if a person receives salary every month for services he renders, that service cannot be said to be voluntary. In arguing the second issue, Counsel pointed out that this second issue for determination is based on the affidavit of the respondents particularly paragraphs 6(i)(ii)(iii)(iv) of their counter affidavit. The applicant had been accused in writing by one Miss Rose Anyanwu. The 4 page allegation was not shown to the applicant until he was invited by the respondents on the 7th of April 2014 which he attended in the company of one of his lawyers Barr. Emeka Ihejirika. It is the Claimant’s submission that going by the provisions of the constitution of the Federal Republic of Nigeria 1999 as amended and having confronted the applicant with the petition, he was entitled to be given time to reply. He insisted on being given time to reply and what he got was a letter terminating his appointment. He said that the constitution and Byelaws of the Church (Assemblies of God Nigeria) by their 2002 constitution, also made provisions giving everybody time to defend himself. This the respondents refused to observe. Counsel relied on the dictum of LORD DENNING In the Privy Council case of KANDA vs. MALAYA Supra. In respect of the 3rd issue for determination it is the submission of the claimant that the reliefs have not been overtaken by events. The respondents have not appointed a new Rector. What they have is an Acting Rector. They also adopted this procedure when the applicant sued them in NICN/OW/02/2014 and they quickly withdrew the Ag. Rector and restored the Rector to his position as the Rector. The terms of settlement is Exhibit C. Counsel submitted that the office of the Rector Bethel Seminary Nekede is still vacant and nobody is occupying same. He urged the court to grant this application and grant the interlocutory application pending the determination of the suit. The defendants sought and obtained leave of court to file a reply on points of law to the Claimant’s further affidavit filed on the 28th day of May 2014 wherein new issues were raised. Counsel reacted seriatim to the issues so raised. Salary: The claimant/respondent in paragraph 5 and 6 of the further affidavit states:- The respondents do not issue pay slips but at the end of every month, the Bursar goes round with the salary schedule and everybody signs and receives his salary; they have been paying monthly salaries, one monthly salary schedule during the time of my predecessor in office Rev. Amadi and another during my time are shown to me and marked Exhibit A and B In paragraph 7 the claimant/respondent stated that: It is the salary paid to him that he used to solve his family problems. It is the submission of counsel to the defendants that the aforestated averments are not evidence of employment. The defendants state categorically that Claimant is not under any employment of any type. Since no form of pay slip was issued to him, the said salary could as well be called wages, stipend, incentive, allowance or earning. The claimant in paragraph 6 of his further affidavit averred that: His relationship with the Defendants/Applicants is that of master/servant employee. In dealing with this issue, it will be appropriate to inquire from the Claimant/Respondent the terms of contract of employment between him and his said “master/employer” and in the absence of that, recourse will be had to Claimant’s statement of claim and statement on oath to discover the relationship between the claimant and the defendant/applicants. In paragraph 1 of Claimant of facts, the Claimant averred that: He is the Rector of Bethel Seminary owned by Assemblies of God, Nigeria and has been a rector for upward of two years. In paragraph 3 he averred: The 2nd – 8th Defendants……. Are the Presbyters of Owerri District of the Church. The 2nd and 3rd Defendants are the Chairman and Secretary respectively. By virtue of these appointments, they are in charge of the Church and its affairs within Owerri District. They employ, dismiss, promote, run the affairs of the Church within Owerri District including establishing schools and running such schools… In paragraph 4, he further averred that he had been a Reverend Minister for many years and in 2011 he was appointed by the Presbyter to head the Bethel Seminary, one of the institutions owned and run by the church. In the statement on oath, the Claimant deposed thus: I, Rev. Dr. Victor C. Iwu, Nigerian, Reverend Minister of Assemblies of God Nigeria, Rector, Bethel Seminary Nekede…. 1. That I am the Claimant in this suit. 2. That I know the Defendants. The 1st Defendant is a Board of Trustees of the Assemblies of God, Nigeria while the 2nd – 8th Defendants are the Presbyters appointed by the 1st defendant to take charge of all the assets of the Church within Owerri District. They administer the affairs of the church in Owerri including Bethel Seminary, Nekede. 3. That Bethel Seminary is one of the assets of the church: I was reverend minister of the Church before I was posted by the Presbyters to head the seminary in 2011. Although the presbyters are not appointed but elected; the summary of the above statement of facts and statement on oath of the claimant shows that his posting to head Bethel Seminary School, one of the assets of the church stem from the very fact that he is a minister in Assemblies of God, Nigeria. In other words, he was never employed rather upon his “call” as a minister and after his graduation from the Bible School; he took up the vocation of pastoring a church as a minister before he was posted to head Bethel Seminary not as an employee but as a Reverend Minster. More so, the failure of the claimant to produce any letter of appointment or of employment contrary to the normal posting as a pastor by the church as shown in Exhibit FA2 is fatal to the claim of the claimant. Exhibit FA1 in the counter affidavit is the prototype of the entrance form which every pastor subscribed to upon admission, which does not show evidence of employment as there is no contract of employment/agreement entered between the Claimant/Respondent and the Defendant/Applicants. However, assuming but not conceding that there is a contract of service/contract of employment and/or master/servant relationship between the claimant/respondent and the defendants/applicants or that the claimant was wrongly dismissed as he alleged; we submit that the remedy available to the respondent whose employment has been wrongful terminated is the measure of damages provided for in the contract of employment in lieu of notice. See the Supreme Court decision in the case of Chukwuma vs. Shell Petroleum Dev. Com. Nig. Ltd. (1993) 4 NWLR (Pt. 289) 512/537; NITEL v. Ugbe (2002) 3 NWLR (Pt. 753) 1. Counsel further submitted that salary schedule is never a determinant factor of the status of the claimant in this regard as an employee. See section 7 paragraph 1 & 2 of Constitution and Bye-law of the Assemblies of God constitution. According to counsel, in contract of employment, a master terminates the employment of an employee with or without notice and without ascribing any reason for the termination, but the master however pays salary for the period of notice provided in the contract of parties. Maiduguri Flour Mills Limited vs. Abba (1996) 9 NWLR (Pt. 473) 508; Olafimihan vs. Nora Lay-Tech Ltd. (1998) 4 NWLR (Pt. 547) 608. In the instant case, there was no contract of employment at all between the claimant/respondent and the defendants/applicants. The law is settled on the types of employment which are classified into three namely: i. Those regarded as purely master and servant ii. Those where a servant is said to hold an office at the pleasure of the employer and iii. Those where the employment is regulated or governed by statute having statutory flavor. See the case of CBN vs. Igwillo (2007) 14 NWLR (Pt.1054) 393; Shitta – Bey vs. F.P.S.C. (1981) SC @ p. 40; Nongu vs. Local Government Service Commission & Anor. 2011. LPELR – 4851 (CA). The law is firm on the relief of an employee who complains of wrongful termination and what he will be entitled to, depending on the nature of his employment. Once an employee proves wrongful termination and nature of his employment, the relief he is entitled, is automatic, as the law is fixed on this. It does not therefore merely depend on the relief sought by the employee but what reliefs he is entitled to in law, and in the circumstances of the case. It will be correct to say that in an action for wrongful termination, the relief sought by the employee might not necessarily determine the relief court will grant as the relief is determined by the nature of his employment. The suit of the claimant is abuse of process. He has sued Rose in HOW/226/2014 for defamation. He is asking this court to reinstate him against the will of his master. The law is settled that the court will not foist a willing servant to an unwilling master. Counsel urged the court to decline jurisdiction and dismiss the suit with punitive cost. By a notice of preliminary objection dated the 30th day of April 2014 and filed on the 5th day of May 2014, the defendants sought an order of court striking out this suit for lack of jurisdiction. The grounds of objection are as follows: 1. The suit as presently constituted lacks merit and does not fall within the provision of National Industrial Court Act 2006 and Rules 2007. 2. The Claimant is not an employee of the defendants/Applicants therefore did not disclose any reasonable cause of action against the Defendants/Applicants which divests this honourable court the requisite jurisdiction to hear and determine the suit. In the defendants/applicants’ written address in support, Counsel stated they are challenging the competence of the claimant’s suit No. NICN/41/2014 on the firm ground that: a. The Honourable Court lacks jurisdiction to hear and determine the suit. b. The suit as presently constituted does not fall within the provisions of the National Industrial Court Act 2006 and Rules 2007. c. The suit did not disclose any reasonable cause of action against the Defendant/Applicants. d. The suit is an abuse of process, mala fide, vexatious, frivolous, oppressive and incompetent. Counsel restated the reliefs sought by the claimant and recalled thus: The claimant in paragraph 3 of his statement of fact revealed that the 2nd – 8th defendants are presbyters of the Owerri District of the church, that the 2nd & 3rd defendants are the chairman and secretary, and that presbytery are in charge of the church affairs, they employ, dismiss, promote, run the affairs of the church within Owerri District, including establishing schools and running such schools. In paragraph 4 of the statement of facts the claimant stated that he had been a Reverend Minister for many years and in 2011 was “appointed” by the presbytery (2nd – 8th Defendants) to head the Bethel Seminary one of the institutions owned and run by the church. The claimant in paragraph 17 of the statement of facts stated “in spite of these, they invited the claimant, and refused his Counsel Barr. Emeka ihejirika esq. to appear or come in with him and proceeded to try the claimant. They made pronouncement against the claimant while he was answering their questions they went and locked his office behind him. The 2nd – 8th defendants locked the claimant’s personal belongings and denied him access to his office including his medicine since the 7th April, 2014. This matter had been reported to the police”. In paragraph 3 of the Statement on Oath of the claimant, he averred that Bethel Seminary is one of the assets of the church. “I was Reverend Minister of the church before I was posted by the presbyters 2nd – 8th defendants to head the seminary in 2011.” The claimant in paragraph 18 of his Statement on Oath, “said the trial lasted for over four hours. After the trial at about 7:05pm, they asked me to go and that was suspended”. This writ, claim, statement of claim was endorsed by the claimant and he authorized the Registrar of the National Industrial Court of Nigeria Owerri Division to seal same as shown in the Affidavit of verification. According to the defendants, the above stated paragraphs in 1.03, 1.04, 1.05, 1.06 and 1.07 are the relevant facts that summarized the issues in contention, dispute and/or grievances of the claimant against the 2nd – 8th defendants/applicants in this suit including the exhibits attached thereto. In challenging the competence of this suit, the defendants/applicants through the 2nd defendants/applicants deposed to a 32 paragraphs affidavit wherein he depose in paragraph 3 on behalf of other defendants/applicants in support of the preliminary objection averred that the claimant was a Rev. Minister/Pastor in Assemblies of God Church Owerri District, but posted to Bethel Seminary School Nekede, in a normal routine church posting of pastors/ministers. In paragraph 8 (i) & (ii) the Defendants/Applicants averred that the church guides and maintains the principles of Holiness and Uprightness as a watchword, and disciplines members, pastors/ministers who deviate from the godly living by way of suspension, disfellowship and/or dismissal of a member or pastor/minister depending on the nature of case, but abhors immoral conducts, dishonesty and things that will bring the church of Christ to disrepute and that when any member or a minister/pastor is accused of any misconduct, immorality or evil vices contrary to the Constitution and Bye-law of the church, the case is handled directly by the presbytery if he is a pastor as in the instant case that the presbyter on any issue is not final as any decision of the presbytery is appealable to the Executive Committee at the General Council, the highest decision making body of Assemblies of God Church as shown in the constitution of the church Exhibit A. The 2nd – 8th Defendants/Applicants further averred that the claimant was dismissed as a Rev. Minister and suspended as a member in line with the Constitution and Bye-law of the Assemblies of God Church as shown in Exhibit A3. From the totality of the facts, issues in controversy, the claim/statement of claim and the reliefs sought by the claimant, the defendants/applicants identified the following four issues for determination: 1. Whether the suit as presently constituted did not divest the honourable court the requisite jurisdiction to hear and determine the suit. 2. Whether the claim in this suit falls within the jurisdiction of this court as provided under the National Industrial Court Act 2006 and Rules 2007. 3. Whether the suit of the Claimant NICN/OW/41/2014 disclosed any reasonable cause of action against the defendants/applicants. 4. Whether the Claimant’s suit is not an abuse of process, malafide, vexatious, frivolous, oppressive and incompetent. In arguing Issues (1) and (2) together, Counsel for the applicants restated the jurisdiction of this court as provided by Section 7 of the National Industrial Court Act 2006 as follows: 7. (1) The court shall have and exercise exclusive Jurisdiction in civil cause and matters. (a) Relating to (i) Labour, including trade unions and industrial relations; and (ii) Environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto, and (b) Relating to the grant of any order to restrain 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. (c) Relating to the determination of any question as to the interpretation of- i. Any collective agreement, ii. Any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute, iii. The term of settlement of any labour dispute, organizational dispute as may recorded in any memorandum of settlement iv. Any trade union constitution and v. Any award or judgment or the court. Counsel stated further that the National Industrial Court is a court with a special jurisdiction under section 20 (1) of Trade Dispute Act Cap. 432. L.F.N as follows: The National Industrial Court shall to the exclusion of any other court, have jurisdiction: (a) To make awards for the purpose of settling trade dispute. (b) To determine questions as to the interpretation of (i) Any collective agreement (ii) Any award made by an arbitration tribunal or by the court under part 1 of this Act. (iii) The terms of settlement of any trade dispute as recorded in any memorandum under section 7 of this Act. See the case of Dr. Taiwo Oloruntoba – Oju vs. Prof. Dopamu (2008) 7 NWLR (Pt. 1085) 1 SC. According to the defendants, if the claim of the claimant, his affidavit of facts, statement on oath, reliefs sought are placed together with the averments of the Defendants/Applicants in their affidavit in support of motion for the preliminary objection challenging the competence of this suit, it is obvious that the Suit No. NICN/OW/41/2014 died on arrival in the chambers of the learned claimant counsel. Filing it at the Registry of this Court is therefore just an invitation to this court to certify it dead and order the undertakers to bury it. To the defendants, a critical look at the writ/claim shows that it did not confer on this court, the jurisdiction to hear and determine the suit based on the aforesaid claim before the court. The jurisdiction of the court is determined based on the claim. See the case of Adeyemi & Ors. vs. Oyeyori (1976) 1 F.N.L.R 149. The claim of the plaintiff determines the jurisdiction of the court. See Western Steel Works vs. Iron & Steel Works Union of Nigeria & Ors (1987) 1 NSCC 133 at 140; see also Section 19 (1) of the Trade Dispute Act Cap. L.F.N 1990. In the case of Oloruntoba-Oju vs. Dopamu (Supra) per Oguntande JSC. At p. 19 para. A – B it was held that the jurisdiction of the court will be determined by the subject matter of the claim not the claim relating to the injunction which was an ancillary relief and depends on the primary claim. In the celebrated case of Madukolu & Ors vs. Nkemdilim & Ors (1962) 1 All NLR 586 at Pg. 895. It was well stated among others that the court assumes jurisdiction……if the subject matter of the case is within its jurisdiction and there are no features in the case which prevents the court from exercising jurisdiction. Counsel for the defendants/applicants submitted that although one cannot decipher the actual subject matter of the claim in this suit but going through the averments and narrowing it down to the statement of facts, statement of oath, paragraph 3 & 4 of the statement of facts and paragraphs 2 & 3 of the statement on oath, a conclusion can be drawn that the claimant sued the defendants the leaders of the church where he was serving as a Reverend Minister/Pastor and Rector of Seminary School owned by the church for dismissing him as a minister and suspending him as a member of the church. In paragraph 17 of the statement of facts, the claimant did not disclose any reason for the pronouncement made against him by the defendants/applicants, but in paragraph 18 of his statement on oath he disclosed that “the trial lasted for over four hours”. “After the trial at about 7:05p.m, they asked me to go and that (I) was suspended” but the claimant did not attach the letter of dismissal which is Exhibit A3. According to counsel, this motion shows that the Claimant was dismissed as a Rev. Minister/pastor and suspended as a member purely based on a church domestic affair in line with the Constitution and Bye-laws of Assemblies of God Church. Article Xii section 1 – 21 of Exhibit A. The Constitution and Bye-laws of Assemblies of God outlined causes of discipline which the Defendants/Applicants the presbytery of the church are empowered by the constitution of the church to apply same in the case of the claimant who also admitted in paragraph 4 of statement of fact and paragraph 3 of statement of oath that the 2nd – 8th defendants/Applicant have the powers thereto. From the foregoing therefore, counsel submitted that the issue/claim of the claimant against the defendants/applicants are purely private/domestic affairs of the church administration which the defendants/applicants exercised under chapter iv section 38 1, 2 and 3 of the Constitution of Nigeria 1999 to protect their religious belief, teaching and practice of their church. To counsel therefore, this court lacks jurisdiction to entertain and/or interfere with the issue that borders purely on church domestic affairs and/or matters pertaining the administration and the belief of a church. He submitted further that if a court lacks jurisdiction to entertain a suit, then it has no jurisdiction to determine or pronounce on the rights between the parties. He referred the court to the cases of Umuoren vs. Akpan (2008) 16 NWLR (Pt. 113) 223 CA Akinmibinu vs. Oseni (1992 NWLR (Pt. 215) Pg. 97; Gombe vs. P.W. Nig. Ltd. (1995) 6 NWLR (Pt. 402) Pg. 402; Desokun vs. Adetunji (1994) 4 NWLR (Pt. 346); Obioma & Ors. vs. Okoma & Ors. Reported in (1978) 3 SC 1. It is well settled that the court is only entitled to decide the issue or issues raised on the claim or claims before it. Conversely the court lacks jurisdiction to decide matters not in issue before him. See: Ochonma vs. Unosi (1968) NMLR 321. Counsel submitted that the issue before the court as distilled from the statement of facts, statement on oath, the claim and the reliefs sought, leaves no one in doubt, that what the claimant has called the court to decide is a private/domestic affair of the administration of Assemblies of God Church Owerri District which is outside the power of this court under the National Industrial Court Act 2006 and Rules 2007. In answer to issues 1 and 2, therefore, counsel urged the court to hold that the suit as presently constituted divests the court the jurisdiction to hear and determine the suit and that the claim of the claimant divests the honourable court the jurisdiction to hear and determine the suit as provided for under the National Industrial Court Act 2006 and Rules 2007. In arguing issues 3 and 4 together, Counsel pointed out that the Defendants/Applicants in paragraphs 8, 9, 10, 11 and 12 of affidavit in support of motion for preliminary objection averred that the claimant is not an employee of the church and that every minister in Assemblies of God church is purely on voluntary service to God. See Article X Section 7. 1 & 2 of the Constitution and Bye-law of Assemblies of God Church Exhibit A. Section 7.1 and 2 1. A pastor is a full time minister of the gospel who, in answer to a personal call of God, has undertaken the prescribed course of study in the Bible School, graduated therefrom and has been granted the required credentials to minister under Assemblies of God, Nigeria. 2. A pastor is not an employee of the church. There is therefore no contract of employment between him and the church. However, in his ministry within the Assemblies of God Nigeria he is responsible to church and subject to directives and discipline in accordance with the provisions of this Constitution and Bye-laws. In paragraph 4 of the statement of fact, the claimant stated that he has been a Rev. Minister for many years and in paragraph 3 of the claimant statement of oath he averred that Bethel Seminary is one of the assets of the church “I was Reverend Minister of the church before I was posted by presbyters to head the seminary in 2011.” According to counsel, this averment corroborates with paragraphs 14 of the defendants/applicants Affidavit where they averred that the claimant was one of the Pastors/Ministers in Assemblies of God who was posted to pastor Assemblies of God church Avu in Umuguma section, Owerri West L.G.A., before he was transferred to Bethel Seminary School Umudibia Nekede to replace Rev. Okechukwu Amadi as Rector who was transferred to Nekede Mechanic Village to pastor the local church. A contract of employment means any agreement whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that person agrees to serve the employer as a worker. See Shena Security Company Ltd. vs. Afropak (Nigeria) Ltd & Ors (2008) 34 NSCQR (Pt. 11) 1287, Labour Act (Cap 198) L.F.N. 1990. According to counsel for the defendants/applicants, the gross defectiveness of this suit is very glaring. The crucial question that begs for an answer is: “who amongst the defendants employed the claimant and under what condition was he employed”. The inability of the claimant to identify his employer amongst the defendants has dealt a fatal unrecoverable blow on the suit. The claimant in an attempt to mislead the court sued and claimed against the defendants jointly and severally, which confirms the facts that there is no contract agreement and/or employment between the claimant and any of the defendants. Counsel submitted that a contract of employment is personal, and where there is a breach, the claimant need not sue jointly or severally. See the case of Julius Berger Plc. (2005) 15 NWLR (Pt. 948) 409; CCB (Nig.) Plc. vs. Rose (1998) 4 NWLR (Pt. 544) 37. He added that the statement of claim or statement of facts of the claimant is otiose, inane, vexatious, frivolous, oppressive, and made in bad faith without any reasonable cause of action thereto. To counsel, a reasonable cause of action means a cause of action with some chances of success which must set out a legal right of the claimants and the obligation of the defendant. It must set out the facts constituting the infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks. See the case of Rinco Const. Co. vs. Veepee Ind. Ltd. (2005) 9 NWLR (Pt. 929) 85; See also Alhaji Ibrahim vs. Osim (1988) 3 NWLR (Pt. 82) 257; Combined Trade Ltd. vs. All States Trust Bank Ltd. (1998) 12 NWLR (Pt. 576) 56. The voluntary nature of the service of the claimant pursuant to the Constitution and Bye-law of the Church did not avail him any legal right. An X-ray of paragraphs 5, 6, 7, 8, 10, 11, 12 and 13 of the statement of facts and paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 17 of the statement on oath of the claimant can better be qualified as frivolous, vexatious and malicious sentiments which have no nexus to the suit before the honourable court, and disclosed no reasonable cause of action. The Supreme Court held in the case of Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256 per Onu JSC in p. 34 para. D –F “that when an application is brought on the ground that a pleading discloses no reasonable cause of action as happened in the instant case, the only prayer that could be sought is an order striking out the relevant pleading. The action is liable to be dismissed if it is found at the same time to be frivolous or vexatious”. According to counsel, a critical look and the community reading of statement of facts, and statement on oath of the claimant in this suit No NICN/OW/41/2014 shows that this action did not disclose any reasonable cause of action against the defendant, it is frivolous and vexatious therefore liable for dismissal with punitive cost. Paragraph 15 of the Statement of Facts and paragraph 14 of the Statement on Oath discloses that the claimant filed a defamatory action in the Owerri High Court in Suit No. HOW/226/2014 in respect of issues canvassed in this court, claiming N10,000,000.00 against Miss. Rose Anyanwu and the 7th defendants which also is the gravamen of his claim of N50,000,000.00 in this court against the defendant/applicant. This, counsel states, amounts to an abuse of process. See Dumez (Nig.) Plc. vs. UBA Plc (2006) 14 NWLR (Pt.1000) Pg. 515. Abuse of process means that the process of court has not been used bona fide and properly, but frivolous, vexatious and oppressive, it means improper use of the legal process. See Okafor vs. A.G. Anambra State (1991) 6 NWLR (Pt. 200) Pg. 659, Aruba vs. Aiyeleru (1993) 24 NSCC (Pt. 1) Pg. 255. See the case of Dr. Akintunde vs. Ojo (2002) FWLR (Pt. 99) 1158 at 1153 -4. It is an abuse of process to file several suits of the same nature against the same parties. Concluding, Counsel for the applicants restated that the claimant filed this suit against the defendants over a matter involving the management, administration and the constitution and Bye-laws of Assemblies of God Church which are purely private/domestic affairs of the church and outside the jurisdiction of this honourable court as provided under the NIC Act 2006. The claimant equally filed a defamatory suit at the High Court Owerri against the presbytery over the same issue of immoral advances. The claimant failed to disclose to the court that his service to the church is voluntary but the claimant concealed this vital fact and invited the court to hear, inquire and determine this suit which purely is outside the jurisdiction of this court. He therefore urged the Court to decline jurisdiction, strike out the suit and/or dismiss same with punitive cost. In opposition to the preliminary objection of the defendants, the claimant filed an affidavit of 31 paragraphs upon which he placed reliance. Counsel raised the following issues for the determination of the court: (i) Does this matter fall within the jurisdiction of the court? i.e. is the work of the claimant a voluntary service? (ii) Whether the suit does not disclose a triable issue. (iii) Are the defendants and their church, The Assemblies of God Church not subject to the jurisdiction of a court? (iv) If ANSWER to No (iii) is in the affirmative. Does the Article XII item 21 under the Heading CAUSES FOR DISCIPLINE of the Constitution and Bye-law of Assemblies of God Nigeria not contrary to the provision of the Nigerian Constitution and therefore void to the extent of its inconsistency. In arguing issue one whether the subject matter does not fall within the court’s jurisdiction or whether the service of the claimant was voluntary, it is the submission of learned counsel for the Claimant that this matter falls squarely within the ambit of the jurisdiction of this court by virtue of Section 254c (1) of the National Industrial Court Act 2006, which states: This court shall hear and determine matters: “Relating to or connected with any labour, employment, trade union, industrial relations and matters arising from workplace, the conditions of service including health, safety, welfare of labour, employee, workers and matters incidental thereto and connected therewith………….” It is common ground by both parties that the claimant was at the material time working for the defendants as their Principal/Rector of the Bethel Seminary Nekede owned and managed by the defendants. In paragraph 4 of the affidavit in support of the preliminary objection, the defendants admitted the fact that the claimant was posted to Bethel Seminary School Nekede as a Rector/Principal. It is the Claimant’s submission that by posting him as the Rector/principal of Bethel Seminary the claimant became an employee of the defendants and is entitled to approach this Court to seek redress in any matter concerning him and covered by the National Industrial Court Act 2006. He referred to pp. 5 & 6 of the counter affidavit of the claimant. Closely related to this issue of jurisdiction is the voluntariness of the claimant’s service to the defendants. It is the Claimant’s submission that the service rendered by the claimant to the defendants is not and has never been a voluntary service. He referred to paragraphs 10 & 11 of the Claimant’s counter affidavit and Exhibit I & II which exhibits show that the claimant and other staff of the Bethel Seminary are paid monthly. The affidavit of the claimant also shows that there are staff members who are not members of the Assemblies of God Church and their only relationship with the defendants is that of master and servant and employer and employee relationship. Voluntary is defined in the Chambers Dictionary New Edition at page 1866 to mean amongst others, “Free, done or made without compulsion done without expectation of payment or recompense or recompense of any kind of monetary. Free from state control………..” From the affidavit of the claimant, and going by the above definition Counsel submitted that the services rendered by the claimant and other employees of Bethel Seminary run by the defendants are far from being voluntary as they are paid monthly and the State/Imo State controls it gives the curriculum and they do whatever public schools do. They also take public examinations like WAEC, NECO and proceed on holidays as dictated by the Government of Imo State. In this respect, counsel agreed with the authority cited by the defendants counsel as to what a contract of employment means, or this form of contract of employment. Counsel adopted his authority of Shena Security Company vs. Afropak Nig. Ltd. & ors. 2008 34 NSCQR (Pt. 11) 1287 which defines a contract of employment to mean “An agreement whether oral or written expresses or replied” whereby one person agrees to employ another as worker and that person agrees to serve the employer as a worker. It was counsel’s further submission that the absence of a written agreement based on the above authority does not destroy the employer/employee relationship between the parties particularly when it is realized that the claimant had been working for the past two years as Rector, and had been receiving his salary without objection. There was therefore an agreement. Counsel urged the court to resolve the issue in favour of the claimant, that is to say that the claimant is an employee of the defendants and that the matter comes within the jurisdiction of the court. In arguing issue two whether the claim of the claimant does not disclose a triable issue and therefore a good cause of action, Counsel for the clamant adopted the defendants’ definition of a reasonable cause of action as seen in line 3.07 of their address. According to the definition, “A reasonable cause of action means a cause of action with chances of success which must set out a legal right of the claimant and the obligation of the defendant……….” The defendant relied in the case of Rinco Construction Company vs. Veepee Ind. Ltd. (2005) 9 NWLR (pt. 292) 85. The defendants also referred to the case of Alhaji Ibrahim vs. Osini (1988) 3 NWLR (Pt. 82) 257. To the claimant, all these cases are against the defendants, or they were cited out of context. The claimant was employed as a Rector/Principal and he was on a monthly payment. See Exhibit I & II. A report was made against him by a staff. He was invited by the employer to defend himself. Having regard to the written nature of the petition, he asked for time to reply. There and then, they dismissed him from service and proceeded to lock his office as the Rector and named another person to take his place. He approached the court and sought six declarations, one of the declarations is that he is still the Rector, that is to say, the defendant cannot remove him given the circumstances of this case. The 2nd declaration is that the defendants have breached his right to fair hearing as, he was not given the opportunity to defend himself and the defendants were bias. The claimant swore to an affidavit and alleged that before the defendants invited him to come on the 7th April 2014, they had already written his letter of dismissal which read 7th April 2014. According to Counsel for the claimant, these are live issues to be tried by the court. On the issue of fair hearing Counsel referred to Section 36 of the constitution of the Federal Republic of Nigeria as amended which states that: “In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time…….” Even the defendant’s church Assemblies of God Nigeria makes adequate provision for fair hearing like the Constitution of FRN. Article XII, S. 1, 2, and 3 of the defendants’ Constitution and Bye-laws of Assemblies of God Nigeria 2002 Titled INVESTGATION FOR ALLEGED VIOLATIONS states: When an allegation is made against a minister (assuming the claimant as a minister) in relation to any of the above mentioned causes of discipline the District superintendent or his delegate shall investigate the substance thereof. Thereafter it shall set up an investigatory pane. The report shall be submitted to the District Presbytery for their decision. This Constitution and Byelaws of the defendants had earlier in Article XII (7) defined what would constitute a cause for Discipline and at 5.7 had this to; Immoral conduct such as adultery, fornication, appearance of evil or indiscretions involving morals and taking an intended spouse to bed before solemnization of church blessing on the marriage in a wedding service….. By the said petition, the former secretary to the Rector alleged that the Rector made immoral advances to her. Section 33 talks on the issue of fair hearing and it states: “The minister concerned shall be present in person and shall be given a fair hearing. However if the minister fails, neglects or refused to attend at the hearing, after having been given sufficient opportunity to do so… he may be disciplined…..” According to the claimant, going by the facts of this case especially the fact that the claimant attended the interview with the defendants, was given a 4 page petition against him by Rose and he pleaded to be given time to reply in writing and there and then he was served a letter of termination of appointment and proceeded to lock his office. This, counsel submitted, is a classic example of denial of fair hearing. His offence was that he asked for time to reply in writing. The allegation of immoral advances made against him and contained in a four page petition was served on him on the said 7-4-2014. He was denied the right to be heard which is a component part of fair hearing. According to Lord Denning in the Privy Council case in KANDA vs. GOVT. of Malaye: “If the right to be heard is to be real right worth anything, it must carry with it right in the accused man to know the case which is made against him. He must know what evidence had been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them.” In the Nigeria case of Re Maclean Okoro Kubeinje 1974 11 sc. 79, the Supreme Court held “that the applicant had no opportunity to prepare and to present his case, he had no access to the documents that concerned him and no explanation was given to him for refusing him the documents”. The Supreme Court held that the Public Service Commission did not give the appellant the opportunity to put forward his case and cancelled his transfer from the bench to the public service. In the present case, the defendants admitted that the 4 page allegation reached them on the 18th of December, 2013 and yet they did not make it available to the claimant or showed him the document until the 7th of April 2014 when they gave him a copy and forced him to make a reply. Counsel therefore submitted that this is a case of denial of fair hearing and the claimant was entitled to come to court and ask as he did in Relief No. (b) of his writ of summons. (b)A declaration that the purported trial of the claimant by the defendant’s in spite of his protest of their bias is a breach of his fundamental human rights….. This alone, counsel said, is sufficient to sustain this action before this Court. On the issue of bias, S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended has put it squarely as it provides where it stated that: “the court or tribunal trying the person shall be constituted in such a manner to secure its independence and impartiality”. Counsel urged the court to hold that the suit discloses a reasonable cause of action. In arguing issue three whether the defendants and/or The Assemblies of God Church cannot be sued to court, counsel submitted that the centre of the claimant’s problem is the fact that he took the church to court. The claimant had earlier sued the defendants in Suit No. NICN/OW/02/2013 which was settled out of court. He also sued Miss Rose Anyanwu who made allegation of immoral advances and one of the defendants in HOW/226/2014. The said suit is still pending in Owerri High Court. This is shown in paragraph 23 of the claimant’s counter affidavit as well as the 2nd reason given by the defendants for terminating the appointment of the claimant. See Exhibit B, by the defendants (letter of dismissal). It is counsel’s submission on this issue of fair hearing that the defendants breached both the issue of fair hearing by not giving the claimant the opportunity to be heard in writing which he requested for. The defendants are also in breach of the fair hearing provision by constituting themselves into a tribunal to try the claimant when the claimant had earlier protested in Exhibit IX to the effect that they are bias against him. This, counsel submits, played out, as the defendants before they came for the interview had already written the dismissal of the claimant from office and put the letter in their pocket. Towards the end of the interview they merely brought the letter out and served same on him. This is a clear breach of the fair hearing provision. It is also explicit from their constitution and Byelaws of Assemblies of God Nigeria ARTICLE XII (CAUSES FOR DISCIPLINE) at pp. 44, item 21. “Taking the church to court for any reason is an offence for which a person can be disciplined”. According to their Exhibit B, the 2nd reason why they expelled him is that he went to court contrary to the Constitution and Byelaws of the church. To the Claimant, this item in the Constitution and Byelaws of the defendants’ church is inconsistent with the clear provisions of the 1999 constitution as amended. Counsel submitted that the item is void to the extent of its inconsistency. The constitution has by the provision of S. 6(b)a-b made provision for easy access to court when it decreed. (6) The judicial powers vested in accordance with the foregoing provision of this section 6(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto”. The 1999 constitution had earlier decreed in Part 1 Section 3 that “If any other law is inconsistent with the provisions of this constitution this constitution shall prevail and that other law shall to the extent of its inconsistency be void.” It is the submission of the Claimant that XII item. 21 of the Constitution and Byelaws of the defendant’s church which purports to prohibit a Nigerian including members of the church from determining their civil rights and obligation in our courts is void. The Claimant then applied that an order be made to expunge the offensive XII item 21 of the Constitution and Byelaws of the Assemblies of God Nigeria be declared void and same be expunged from the said Constitution and Byelaw of the church. Counsel urged the court to dismiss the defendant’s preliminary objection. The defendants/applicants filed a further affidavit and a reply wherein Counsel adopted the three issues presented by the claimant/respondents Counsel for determination viz. (i) Whether the services rendered by the applicant was a voluntary service. (ii) Whether the applicant’s appointment was terminated accordingly. (iii) Whether the Reliefs sought for have been overtaken by events. Counsel nominated to argue the three issues together. Defendants/Applicants in paragraph 5 (iii) maintained that Pastors in Assemblies of God are not employees but they are being taken care of from the proceeds of the Church, while the claimant/respondent, the former Rector receives his wage from the school where he is a Rector but not that he is an employee of the church. This fact was attested to by the former Rector Rev. Okechukwu Amadi who was Rector for eleven years now, a pastor of local church and others Rev. F. N. Opara & Rev. Obed who confirmed they are not under employment. See Exhibit FA3, FA4 and FA5. Exhibit FA1 is a prototype of the entrance form which every pastor in Assemblies of God Nigeria subscribed to upon admission, which does not show evidence of employment as there is no contract of employment/agreement entered between the claimant/respondent and the defendant/applicants. The claimant/respondent alleged that his relationship with the defendants/applicants is that of master/servant. Assuming but not conceding that there is a contract of service and/or master/servant relationship between the claimant and the defendants, it is counsel’s submission that ordinary master and servant relationship where there has been termination of a contract of service, the Court will not make a declaration that the contract of service still subsists. See U.N.N. Teaching Hospital vs. Nnoli (1994) 10 SCNJ 71 @ 92. The claimant deposed thereto that the defendants/applicants are his employers and that there is a master/servant relationship between him and the defendants. Assuming but not conceding that the claimant is an employee of the defendants or there exists a master/servant relationship between the defendants and the claimant. Counsel submitted that the law is settled that in a master/servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. See the case of Azenabor vs. Bayero Univeristy, Kano (2009) 17 NWLR (Pt. 1169) 96 CA. In Odeh vs. Asaba Textile Mill Plc. (2004) All FWLR (Pt. 242) 2163, it was held that “a master can terminate the employment of his servant/employee at anytime and for any reason or for no reason at all, provided the termination is in accordance with the terms of their contract. In the instant case, the retirement or termination being in compliance with terms of contract of employment of the Appellant cannot make a case for wrongful termination of his employment”. See also Ibama vs. Shell Pet. Dev. Co. (Nig.) Ltd. (1998) 3 NWLR (Pt. 542) 493; NITEL Plc. vs. Ocholi (2001) FWLR (Pt. 74) 254. It is settled law by several authorities that master/employer reserves the right to hire and fire a servant at any time. See the case of Ali vs. NNA (2005) All FWLR (Pt. 272) 265 @ 293 -94; UBA vs. Toyinbo (2008) LPELR 5056 CA. The law is trite that the power to enter into a contract of service of employment encompasses the powers to terminate the contract. See Irem vs. O.D.C. (1960) SCNLR 70 (1960) 5 F.S.C. 24 @ 29. It was counsel’s submission that the basic principle of master and servant relationship is that an employer can summarily dismiss the employment of his servant for gross misconduct. Where the dismissal is founded on allegation of gross misconduct, the appellant is not entitled to any notice or salary in lieu of notice. See Alhaji Ekunola vs. C.B.N. & Anor. (2013) LPELR 2039 SC. To the defendants, the claimant never exhibited to this Court any evidence indicating a contract agreement and/or term of contract of employment between him and defendants. He submitted therefore that the claimant was dismissed and/or terminated in accordance with the process of his posting. See Exhibit ‘FA2’. The claimant filed the Motion on Notice the 5th of May, 2014 seeking for the defendants to vacate the office, for an order restraining the defendants from installing or assigning anybody to the office of the claimant pending the determination of suit, he sought an order of court restraining the defendants from announcing to the general assembly of the church to be held on the 8th April, 2014 and an order of court authorizing the claimant to enter into his office and occupy same pending the determination of this suit. These reliefs are completed acts. Counsel submitted that the action/prayers came too late in the day when the action had been fully completed. The claimant was removed on the 7th April, 2014, new Rector appointed on the 8th April, 2014. On the 9th April 2014, the Magistrate Court Owerri made an order opening the office of the Rector. On 14th April 2014, the claimant filed this action when the act had been completed. Counsel submitted that a completed act is not a subject for which an order of injunction is granted. S.P.D.C. vs. Hotel De Defama Ltd. (2007) All FWLR (Pt. 359) 1395 @ 1402 paras. E – G. An order of injunction cannot be granted in respect of completed acts. Nwaifo vs. Lagos State Government (2008) All (Pt. 417) 184 @ 187. On the issue of Exhibit FA7 Counter Affidavit was not sworn before the Commissioner of Oath at the National Industrial Court, Owerri as required by the Evidence Act, therefore incompetent. Counsel urged the court to dismiss this suit for being incompetent. From the foregoing particulars of the applications and the summary of the submissions of the respective counsels to the parties in their written addresses in respect of the applications, two applications are to be determined in this ruling. They are the claimant’s motion for injunction and the defendants’ preliminary objection. I have decided to consider and determine the preliminary objection first. This is because the preliminary objection challenges the jurisdiction of this court to hear and determine this suit. The issue of jurisdiction is very fundamental in the administration of justice. Any pronouncement made by court without jurisdiction is an exercise in futility. That is why once the issue of a court’s jurisdiction is raised, it must be settled first and timeously too before any other step is taken in the matter. See BABALOLA vs. OBAOKU-OTE (2005) 5 W.R.N 179 at 194. The ground of the defendants’ preliminary objection is that the relationship between the claimant and the defendants does not fall within the matters on which this court can exercise jurisdiction under the law. In their affidavit in support of the preliminary objection, the facts are deposed that the claimant was a minister/pastor in Assemblies of God Church but posted to Bethel Seminary School in the normal routine posting of ministers in the church. The said Bethel Seminary is a mission school of the church and it is being supervised by the 2nd – 8th defendants who are the Presbyters of the Owerri District of the Church. By the constitution and Bye Laws of the church, pastors or ministers of the church are not employees of the church but under voluntary service for God, based on allowances and good will of the church. There is no contract of service between ministers or pastors of the church and the church. The claimant was a minister in the church and was the Pastor of Assemblies of God Church, Avu, in Owerri West LGA before he was transferred to Bethel Seminary School to replace the former Rector who was posted to another church. The claimant’s posting to Bethel Seminary as the Rector is in the normal routine of posting of pastors of the church and he can be withdrawn or transferred at any time. Since no contract of service existed between the parties, the dispute between them is purely church domestic affair which is regulated by the church’s constitution and Bye Law. The relationship between the parties is not within the jurisdiction of this court. The claimant did dispute these facts as put forward by the defendants. In his counter affidavit, the claimant averred that this suit is a labour matter and the dispute arose from his workplace between himself and one Rose Anyanwu. The claimant deposed that he was a Pastor in Avu before he was employed by the defendants and posted to become the Rector of Bethel Seminary. He also averred that he was not under voluntary service. He is being paid salary. The seminary is established by the church and after collecting school fees, the workers are paid salary not on the basis of religion but on basis of labour and master and servant. It is further deposed that he was dismissed as a minister and suspended as a member by letter dated 7th April 2014. The defendants proceeded to lock up his office, stopped paying him salary and wrote to him to pack out of the official residence. The claimant concluded that he is a minister of assemblies of God but he is not working at the seminary as a minister of the church. He is working as a principal or Rector of the seminary and he is being paid salary by the owners of the school. That the relationship between him and the Presbyters is one of master and servant. In view of these facts, the issue to be determined here is whether the nature of the relationship between the parties and the dispute between them is one within the jurisdictional competence of this court. Courts are established by the Constitution or Acts or Laws and these legislations prescribe the powers and jurisdiction of the courts. Therefore, the jurisdiction of court is defined, limited or circumscribed by the statute creating the court. As regards this court, it is as established in Sections 1 (1) of NIC Act 2006 and in section 2 of the Constitution (Third Alteration) Act, 2010 which amended section 6 (5) of the 1999 Constitution to include the National Industrial Court as a court created by the constitution. Both this legislations vested this court with jurisdiction in Sections 7 and 254C respectively. It must be mentioned that the jurisdiction of this court in Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is more expansive, as the Section covers variety of matters not mentioned in Section 7 of the NIC Act. Therefore, the principal and general law on the jurisdiction of this court is the 1999 Constitution (as amended). Among the several matters on which the court may exercise jurisdiction in Section 254 C, I examine the portion relevant to the determination of the issue in this application, as also cited by the claimant’s counsel in his argument in issue 1 formulated by him in his written address. Section 254C-(1) 1999 constitution (as amended) provides- “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 condition of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith” It is apparent from this provision that before this suit can be entertained by this court, it has to be shown to have come within sphere of labour or employment matters. Therefore, that there is a contract of employment between the claimant and the defendants is the bedrock and foundation which the claimant’s case must be found to bring it within the jurisdiction of this court. It is a fundamental principle of law that the question whether the court has jurisdiction in a mater is determined by the plaintiff’s claims. In other words, it is the writ of summons and the statement of claim before the court that will be looked at or examined to ascertain whether the suit comes within the jurisdiction conferred on the court. See TUKUR vs. GOVT. GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 at 549; ADEYEMI vs. OPEYORI (1976) 9-10 SC 31 at 51; ERHUEH vs. INEC (2003) WRN 95 at 111. In the claimant’s statement of facts, it is averred that the claimant is the Rector of Bethel seminary, which school is owned by Assemblies of God. The 2nd to the 8th defendants are the presbyters of the Owerri District of the church and they are in charge of the church and its affairs. They employ, dismiss, promote and run the affairs of the church including establishing schools and running of such schools. The claimant has been a minister in the church for several years before he was appointed in 2011 by the defendants to head the Seminary. In the course of his duties as Rector of Bethel Seminary, a dispute arose between the claimant and one Rose Anyanwu, his secretary, which led to a complaint of immoral advances by the said Rose against him to the defendants. He was invited by the defendants to appear before them to answer to the charge made against him by Rose. Notwithstanding his protests, the meeting held where the defendants “made pronouncements” against him. The defendants, at that moment, also locked up his office. It is upon these facts the claimant sought the reliefs on the Complaint as have been earlier set out at the beginning of this ruling. The facts of the claimant’s case and the reliefs sought therein reveal that the dispute is about the office of the Rector of Bethel Seminary School of the Assemblies of God church. The facts show that the claimant was a pastor of the church. The seminary is owned by the church. The claimant worked in the seminary as the Rector. The question at this point is: “did he act as Rector of the seminary by virtue of being a pastor of the church or was he an employee of the seminary different from his calling as a pastor of the church?” The answer to these questions will enable this court determine whether at any material time, there was a labour or employment relationship between the parties. In paragraph 4 of the statement of facts, the claimant averred that he was “appointed” by the defendants as Rector of the Seminary. Besides this averment, no other facts regarding the terms of the “appointment” is disclosed. No appointment letter or condition of service or terms of the appointment are pleaded. But the defendants have contended that the claimant was not employed or appointed. He was merely transferred to the seminary in the normal routine of postings of the church’s pastors. This appears to be the truth of the matter. The claimant himself made depositions to this effect. In paragraph 3 of the claimant’s witness statement, which was sworn before this court and now in the record in these proceedings, he deposed that: “Bethel seminary is one of the assets of the church. I was Reverend Minister of the church before I was posted by the presbyters to head the seminary in 2011.” Also there is the evidence of posting or transfer annexed by the defendants to the affidavit in support of the preliminary objection as EXHIBIT A1. The exhibit is the minutes of meeting of Assemblies of God, Owerri District Presbytery, held on 15th August 2011 and attended by the defendants as the presbyters. One of the businesses discussed at the meeting was the transfer of ministers. The document contained at the two last lines of page 1 thus: “Rev O. Amadi, the Rector of Bethel Seminary moves to A.G.C Mechanic Village, urban Section 11 while Rev Victor Iwu from A.G.C Avu, Umuguma section goes to Bethel Seminary as the Rector.” I do find from the above facts that the claimant was not appointed or employed by the defendants as claimed by him. In fact, as a pastor of the church, he was transferred by the defendants to head the seminary. It thus means that at all material times he was at the seminary, he was there in his capacity as a pastor of the church. It was not a separate duty different from his ministerial position in the church. This is as the defendants deposed in their affidavit that the claimant was a minister in the church and the claimant’s posting to Bethel Seminary as the Rector is in the normal routine of posting of pastors of the church and he can be withdrawn or transferred at any time. It presupposes that the claimant’s transfer to the Seminary did not create any service contract between him and the defendants. A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. See Section 91, Labour Act 2004; SHENA SECURITY COMPANY LTD. vs. AFROPAK (NIG.) LTD. (2008) All FWLR (Pt. 426) 1827 at 1838. Therefore, an employer and employee relationship exists where a worker is employed under a contract of employment. See NGUN vs. MOBIL PRODUCING NIG. UNLTD (2013) All FWLR (Pt. 677) 665 at 688. The relationship between an employer and an employee is generally to be found in the service agreement or employment letter. See ANAJA vs. UBA (2011) All FWLR (Pt. 600) 1289 at 1300. In this case, no such service agreement or letter of employment is front loaded or even pleaded. However, a very important document has been placed before this court in this application from which this court will determine the nature of the relationship between the parties. This is the Constitution and Bye Law of the Assemblies of God. In paragraphs 9 and 27 (1) of the affidavit in support of the preliminary objection, the defendants referred to the church’s constitution and Bye Law and said that there is no contract of service between the claimant and the church. The Constitution and Bye law is attached as exhibit A. it is provides in Article X, section 7 thereof as follows- “1. A pastor is a full time minister of the Gospel, who in answer to a personal call of God, has undertaken the prescribed course in the Bible School, graduated there from and has been granted the required credentials to minister under the Assemblies of God, Nigeria. 2. A pastor is not an employee of the Church. There is therefore no contract of employment between him and the church. However in his ministry within the Assemblies of God, Nigeria, he is responsible to the church and subject to directives and discipline in accordance with the provisions of this constitution and Bye Laws.” It has been made categorically clear by the Constitution and Bye Laws of the church that there is no employment relationship between the claimant and the church. In this suit, the claimant has not shown any other such agreement or contract of employment whereby it can be categorically concluded that there was a contract of employment between him and the church or the defendants. In his counter affidavit, the claimant repeatedly stressed that he was being paid salary as the Rector of the seminary and he wanted the court to presume from that gesture that he was under a contract of employment. It should be noted that a contract of service cannot be presumed. It must be proved by empirical evidence. The fact that a person was being paid salary and allowance by another is not proof of contract of service between them. See ANIKE vs. SPDC NIG LTD (2012) All FWLR (Pt. 638) 975 at 989. Actually, as a pastor of the church, the claimant is entitled to some payments. See Article X, section 8 of Exhibit A, the Constitution and Byelaws of the church. The defendants, in their further affidavit, explained that Pastors in Assemblies of God are not paid salaries but are taken care of from the proceeds of the church; but if posted to head a department or mission school or evangelism, he is paid based on his assignment and not as an employee. Therefore, it is my view that the payment made to the claimant as the Rector of the seminary is still a result of his being a pastor of the church and not on the basis of any employment. As have been stated earlier in this ruling, to bring this suit within the jurisdiction of this court, it must be shown to have arisen as a labour or employment dispute. A labour or employment dispute is a dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person. See section 28 of the Trade Dispute Act 2004. I am unable to find any such dispute here. What the dispute in this suit amounts to is an internal wrangling between a church and its pastor with regards to the activities of the church. This is even more so when the persons who are the defendants to the suit is considered. These are the Trustees of the Church and the Presbyters of the Owerri District of the church. The Constitution and Bye Law of the church clearly provided that the relationship between the church and its pastors does not create any service contract. The facts before me show that the claimant was a pastor of the church at the Avu church and was transferred from there to head the Bethel Seminary. His posting to Bethel Seminary did not create any contract of service between him and the church different from the church/minister relationship existing between them. The claimant was at no time an employee of the church. Therefore, this suit is clearly about a dispute arising from internal administration of the church and not about issues of employment or labour. In the absence of an employment relationship between the parties, this suit cannot be said to come under labour or employment matters as to clothe this court with jurisdiction to hear and determine it. Since the subject matter of this suit is not covered in section 254C (1) of the 1999 constitution, it will amount to probing into the internal affairs of the church should this court proceed with this matter. This court will definitely be going outside its bounds or undertaking a futile exercise if it refuses to decline jurisdiction at this point. Without wasting further time, I hold that this court has no jurisdiction to entertain and determine the claimant’s suit. The suit is accordingly struck out. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge