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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Wednesday 12th February, 2014 SUIT NO: NICN/ABJ/122/2013 Between: Mr. Umo Oyom Young Claimant AND Charles Kudzo Avotri and 2 Others Defendants REPRESENTATION Parties absent; Manni Ochugboju for the claimant /respondent Herry Oduwa -Malaka Esq. for the defendant /applicant. RULING By a notice of preliminary objection dated the 25th of June 2013 and filed on the 26th of June 2013, the defendant /applicant prayed the court to dismiss the entire suit for lack of jurisdiction on the following grounds (a) The case of the plaintiff is not a labour or trade union matter. (b) There is no contract of employment between the plaintiff and the defendant. (c) The plaintiff is not in the payroll of the defendant In his argument counsel to the defendant applicant, Mr. Shekoni Adeyemi Lawal contended that the jurisdiction of the National Industrial court as created and provided under section 254 (c ) of the 1999 constitution of the FRN as amended and section 7 (I) of the National Industrial Court Act of 2006 do not accommodate the claims of the plaintiff and as such the court is bound to stay within the unit of its jurisdiction. He cited the case of Arowolo Vs. Adesina 2011 2 NWLR Pt. 1231 at 315 page 321. Counsel contended further that in determining the issue of jurisdiction of this court, regard should be had to and confined to the nature of claim before the court and when this is done, it will be seen that the defendant is not an employee, neither is there any employment relationship between the parties in this suit counsel cited the case of Onuekwusi Vs. RT .C.M.Z.C 2011 6 NWLR (Pt 1243) SC at 341 It is the argument of Mr. Sekoni – Lawal counsel to the defendant/ applicant that to qualify as a labour related matter the claimant must be appointed under’ certain terms and condition as the plaintiff allegation of being entitled to a percentage fee of the defendants business does not make him an employee. Counsel cited the case of Madukolu Vs. Nkedilim 1962 2 SC NLR and urge the court to determine the issue of jurisdiction first and dismiss the suit; In his response to the preliminary objection, the claimant /respondent counsel, Mr. Manni Ochugboju Adopted his written address pursuant to the counter affidavit filed on the 13th of November 2013 and prayed the court to dismiss the (NPO) Notice of preliminary objection filed by the defendant /applicant on the following grounds: (I) The NPO filed by the objector did not comply with the provisions of the 2012 practice direction and order II rule I which require every motion to be accompanied with an affidavit. (b) That the objection application is highly misconceived. (c) That the objectors misconstrued the concept of contract and the different types of employment contract under Nigerian Law. Mr. Oghugbju then proceeded to formulate three issue for determination in this suit; (I) Whether a preliminary objection which is lacking in merit and is not in compliance with the courts rules should be dismissed. (II) Whether the preliminary objection filed by the defendant /Respondent grossly misconceived the provision by NIC Act 2006 Article 7 (I) that vest exclusive jurisdiction on this honourable. court in employment Labour trade union and industrial relations matter. (III) Whether the preliminary objection grossly misconceived elements of contract of employment and the different types of employment contract recognized by Nigerian Law. On issue one, Mr. Ochugboju posited that the process filed by the objector is defective, incompetent and totally irregular on the ground that; (a) The Motion is not accompanied by an affidavit as provided by practice direction of this court, order II Rule (I) (2) (b) That the motion containing the preliminary objection was not served on the claimant /respondent within 5 days as required by the rules of this court. (c) That failure to observe the rules of court as required makes the application incompetent. (d) Counsel cited the case of Oyegun Vs. Nzeribe 2010 7NWLR (Pt. 1194) at 577 Solanke Vs. Somekun 1974 I SC 141 Saude Vs. Abdullahi 1989 4 NWLR Pt. 116 387; Atanda Vs. Ajani 1989 3 NWLR (Pt. III) 5II ; UTC Nig Ltd Vs. Pamotel 1989 2 NWLR (Pt. 103) 244 On issue two, counsel submitted that the word ‘labour’ encompasses a reference to workers, those who work , employees Manual labour, a task or period of work counsel conceded that the jurisdiction of this court is created by statute as provided under section 254 (C ) of the 1999 constitution as amended and section 7 ( I) of the NIC Act 2006. Counsel contended that the objector terribly misunderstood or misrepresented the elements of contract and urged the court to apply the decision of the court of appeal in NUT Niger State Vs. COSST. Niger state 2012 10 NWLR Pt. 1307 89 and dismiss the objection as the claimant was an employee of the defendant under certain terms and condition. On issue three, Mr. Ochugboju submitted that the working relationship between the defendant and the claimants reveals that there was a valid contract of employment wherein its comprises of offer, acceptance, consideration and there was intention to create a legal relationship. Counsel called in aid the case of Saka Vs. Ijuh 2010 4 NWLR (Pt. 1184) 405. Counsel referred the court to the fact that the claimant was employed by the defendant as Head of department of Architecture and construction wherein, his duties were specified to include Landscaping and architectural Sketch Schemes, presentation designs, provision of detail working drawings and supervision of construction work. Counsel relied heavily on the business relationship proposal signed by the claimant alone to buttress the fact that the contract of employment contains terms and conditions. He contended further that whether a worker or employee receives a percentage fee of the employers earnings or regular wage, an employee is a person who is paid to work. He cited the case of Okoh Vs. University of Lagos 2011 14 NWLR (Pt. 1268) 563, NITEL Vs. Ikaro 1994 I NWLR (Pt. 320) 350 at 361-363 Counsel argued that the business relationship proposal signed by the claimant should be construed to represent employment relationship as the document should be read in the context of the day to day application of the word and not in any technical legal sense as it was drawn up by parties who are lay person. Counsel cited the cases of Imonikhe Vs. Unity Bank Plc 2011 12 NWLR (Pt. 1262) 624, UBN PLC Vs. Soares 2012 II NWLR (Pt. 1312) 550. Counsel further submitted that contract of employment can be inferred from the conduct of the parties and urged the court to look at the substance of the relationship between the parties and not the form by inviting the principle of equity in that regard. Counsel cited the cases of Johnson Vs. Nobil producing Nig Ltd 2010 7 NWLR Pt. 1194 462; Oparaji Vs. Ahihia (2012) 4 NWLR (Pt. 1290) 266; BfI Group Vs. BPE (2012) 18 NWLR (Pt. 1332) 209 SC. In conclusion counsel referred to section 7 (I) of the labour Act 1971, section 149 (I) of the evidence Act 2011 and urged the court to hold that the refusal of the defendant to countersign the employment contract written in the form of business proposal by lay men is an attempt by the defendant to unfairly treat the claimant and therefore the defendant should not be allowed to benefit from their wrongs. Counsel cited the cases of ANIKE Vs. SPDCN Ltd 2011 7 NWLR Pt. 1246 227; Alade Vs. Alice Nig Ltd 2010 19 NWLR (Pt. 1226) III SC Teriba Vs. Adeyemo 2010 (13 NWLR) 242 SC; and also further urged the court to dismiss the preliminary objection. In his reply on point of law, counsel to the defendant /applicant referred this court to his further affidavit sworn to on the 27th of November 2013 even though there was no previous affidavit; a written address which is a reply on point of law dated 22nd November, 2013 wherein he urged the court to discountenance paragraphs 3 to 8; 12 to 25 of the claimant /respondent counter affidavit as it offend section 115 of the evidence Act 2011. Affidavit evidence, counsel contended, ought not to contain arguments or opinions. Counsel contended further that point of law can be raised without affidavit evidence. He referred the court to the case of Ibrahim Vs. Fulani 2010 17 NWLR (Pt. 1222 ) 241 ANPP Vs. INEC 2010 13 NWLR Pt. 1212 at 549. On the issue of service of motion, counsel laid the blame at the door step of the bailiff as he submitted that it was the responsibility of the bailiff to so do within the time limits specified by the rules when he had paid all the fees as prescribed for the process. Counsel contended also that the claimant ought to produce appointment or employment letter to make it an issue of labour and this will go a long way to determine the terms and condition of the employment (if any) counsel cited the case of UBNS Vs. Chinyere 2010 10 NWLR Pt. 1203 at 453 FMC Ido Ekiti Vs. Olajide 2011 11 NWLR (Pt. 1258) at 256. The claimant /respondent, he contended has not proved that there is employment as there in a duty on him to do so as he who assert must prove. Counsel referred to the cases of Ishola Vs. UBN Ltd 2005 6 NWLR Pt. 992 SC 422 Imonikhe Vs. UB Plc 2011 12 NWLR Pt. 1262 SC 624 Ogoh Vs. Unity Bank Plc 2013 9 NWLR Pt. 135 8 at 1 and urge the court to dismiss this suit for lack of jurisdiction I have gone through the objections, the various argument and submissions made by counsel in support of their respective position. The sole issue that calls for determination in this interlocutory application is “whether or not the jurisdiction of this court is ousted by the claims in this case as presently constituted in view of the laws and statute setting up the National Industrial Court of Nigeria.” In determining this issue, a voyage into some definitional terms in labour law and industrial relations will be of tremendous assistance. The first question is, who is an employee and an employer? According to section 54 (1) of the National Industrial Court Act 2006, an employee is defined as follows; “Person employed by another under oral or written contract of employment whether on a continuous part time , temporal or casual basis and include a domestic servant who is not a member of the family of the employer” An employer is defined as follows: “Any individual or body corporate or unincorporated who has entered into a contract of employment to employ any other person as an employee or apprentice” The central and critical issue in the objection of the defendant /applicant in his motion dated the 25th of June 2013 is the Jurisdiction or otherwise of this court to entertain the claimant/ respondent suit as constituted. It should be noted and emphasized that it is the claim in any particular case that determines jurisdiction. In other words, it is the claimants originating processes that clothes the court with or denies it the jurisdiction to adjudicate on a matter before it. Whatever is brought before the trial court by the complainant or claimant for determination in this court, will determine whether or not a trial court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all. See the case of P& C.H.S. Co. Ltd Vs. Migfo Nig Ltd 2013 3 NWLR (Pt. 1333) at 555. It is trite law that jurisdiction of a court is derived from the statute creating or setting up the court. In the case of the National Industrial Court, it is the third alternation to the 1999 constitution of the Federal Republic of Nigeria, the National Industrial Court Act 2006 and other subsidiary legislations. Following the principles and the authorities set out above, let me now delve into and consider the reliefs as stated in the originating processes and pleadings of the claimant in this case. Paragraphs I , 6, 15 and 20 of the claimant statement of claim states as follows: I the plaintiff is an architect by training and whose services were engaged by the 3rd defendant, as an in house architect between March 2008 and December 2008. 6. The responsibilities of the plaintiff as an in house architect included provision of landscape and building designs and drawing, audio visuals presentations, building works supervision and extra – architectural services such as general construction, preparation of bills of quantities and estimating among others. 15 When the plaintiff began to ask for remunerations according to the agreed fee sharing basis, the defendants not only reneged on the business relationship proposal contract but also wrong fully dismissed him 20 Whereof the claimant claims against the defendants jointly and severally as follows; (i) A declaration on the basis of the business relationship proposal, and the “non fixed fee sharing formula agreed upon by the parties, that the plaintiff be awarded 5% on Federal government contracts, 3% on state government contract and 2% on private contract and 1% on Avot system company in – house contract (ii) A declaration that all jobs executed under items in paragraph 13 (G) above that are “measure and pay” contract whose individual contract sum may be about N50,000,000.00 (Fifty million naira) that the plaintiff be awarded N100,000 on each of the projects (iii) An order to pay the plaintiff the following sum as remuneration accruing from the business relationship proposal and work done on the project itemized as A-G here in as following: (a) N250,000 (b) N320,000 (c) N45M (d) N500,000 (e) N2M (f) N150,000 (g) N500,000 Subtotal N48,720,000.00 (iv) An order for breach of contract of N5,500.000.00 Preliminary issues deduceable from the claims enumerated above reveals the grievances of the claimant basically on issues of (a) Engagement of service by the defendants (b) Claimants was an in-house architect of the defendants. (c) Wrong full dismissal (d) Non fixed fee sharing formula agreed upon by the parties on the basics of “measure and pay” (e) Remuneration on work done. In my consideration view, these issues are clear labour issues. Whether the claimant will succeed or not at the trial of this suit is altogether a complete different issue. The court has the duty to investigate these labour issues by conducting a trial and not to prevent the claimant in any way from approaching the court to ventilate his grievances if this case is terminated in limine Moreover from the above quoted claims, the plaintiff is claiming a sum of money due to him as salary arrears as a worker under a contract of employment. In this context and analysis, two key issues has arisen which are; (1) Who is a worker? And (2) What is contract of employment In section 91 of the labour Act Cap LI LFN 2004 a worker is defined as follows: “ A worker is any person who has entered into or work under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written and whether it is a contract of service or contract personally to execute work or labour. See also the case of mobile producing Nig. Un ltd and Another Vs. Udo Tom Udo 2008 LPELR 8440 P. 68 paragraph A-C. “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 the case of Shena security Co. Ltd Vs. Afropak Nig Ltd 2008 LPELR 3052 SC 13 paragraph A –C. From the above exposition, it is glaringly clear from the pleadings of the claimant that he was a worker, an employee having a contract of employment oral or written with the defendant. What can I say more? In the claimants respondent counter affidavit to the defendant /applicants motion filed and sworn to on the 13th of November 2013, the claimants averments in the 37 paragraphs counter affidavit has not been specifically denied. This means that they are uncontroverted and the court is bound to act on them since they remain unchallenged. This is trite law; paragraph 7, 23 and 24 of the said counter affidavit to this preliminary objection states ‘7’ “throughout the 36 months that I worked for the defendants, they never paid my complete salary of (N150,000.00) per month on any occassion at all. In some months no payment was made at all and the agreed deductible car finance was also breached and not implemented.” ‘23’ “In view of the unauthorized deduction of salary, irregular payments and failure or refusal to pay salaries, an arrears of N3,925,000 is now due and owing as salary arrears” ‘24’ “In October 2012, shortly before the summary termination of my contract of employment I became restless and strident in my repeatedly reminding the defendants of the large salary arrears due and owing” It should not be forgotten that it is the plaintiff’s claim that cloths the court with jurisdiction or denies the court of it; By the provision of section 254 (c) (I) of the 1999 constitution of Nigeria as amended the jurisdiction of this court is stated as follows; I highlight the pertinent paragraphs:- “Notwithstanding the provisions of section 251, 257 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters: (a) Relating to or connected with any labour, employment, trade Unions, industrial relations and matters arising from workplace the conditions of service including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected there with (b) Relating to, connected with or arising from factories Act, Trade Dispute Act, Trade Unions Act, Labour Act, employees’ compensation Act or any other Act or law relating to labour , employment, Industrial relations, workplace or any other enactment replacing the Act or laws. (f) Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters. (k) Relating to or connected with disputes arising from payment or non-payment of salaries, wages, pension, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the federation and matters incidental thereto” From the few quoted portions of the section of the 1999 constitution of Nigeria bordering on the jurisdiction of this court, the following issues and principles are quite clear as far as the exclusive jurisdiction of the National Industrial Court of Nigeria is concerned. (1) Any matter or suit relating to, connected with, incidental thereto, arising from labour, employment, Industrial relations, Trade Disputes, worker, employee is localised in this court and this court alone. (2) Any matter relating to, connected with, arising from, incidental to unfair labour practice (3) Any matter arising from connected to, relating to, incidental to disputes on payment or nonpayment of salaries, wages, benefits, entitlements etc of any worker, employee, civil or public servant etc in Nigeria. For the avoidance of doubt the jurisdiction of this court as outline under section 7 of the National Industrial Court Act 2006 has been subsumed under the third alteration of the 1999 constitution of the Federal Republic of Nigeria. As such, there is no need to embark on any voyage to the provision of NICA 2006. Moreover the constitution is the ground-norm and the organic law that supersedes all other laws. From the provisions of the third alteration to the constitution of the Federal Republic of Nigeria 1999, it is my view that the claimant was not only a worker but an employee of the defendant under a contract of employment as the claims enumerated herein-before is related to, arising from, connected with or incidental to employment and labour under the labour Act. Furthermore, the claims of the plaintiff in this case as constituted borders on unfair labour practice under section 254 c (I) (f) of the 1999 constitution as amended. For the benefits of doubt, the claim also touches on the payment or nonpayment of wages, salaries, benefits and entitlement of a worker, employee under section 254 (c) (I) (K) of the 1999 constitution as amended and I so hold. Consequently since the claims of the plaintiff in this suit falls squarely under the jurisdiction of this court, the defendants/applicants application is hereby dismissed. The case shall proceed to trial and I make no order as to cost. ---------------------------- - Hon. Justice P.O Lifu JP. Judge