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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 3rd February, 2014 SUIT NO: NICN/ABJ/75/2013 Between: Dr. Isaac J. Essien, Esq Claimant AND National Assembly, Federal Republic of Nigeria and Another Defendant REPRESENTATION Parties absent; Victor Abasiakan- Ekim Esq. with Onyinye Chikwendu (Miss) for the claimant /respondent, Charles Yoila Esq. For the defendant/applicant. RULING By a Motion on Notice dated the 15th of July 2013, the defendant/ applicant raised a preliminary objection brought pursuant to section 254 (c ) (i) (a-m), (2) of the constitution of the Federal Republic of Nigeria (FRN) 1999 as amended and under section 7 National Industrial Court Act (NICA) 2006. The defendant predicated his objection on the following grounds. (1) This Hounarable court has no jurisdiction to entertain the suit as constituted (2) The sole claim of plaintiff is for payment of the sum of N6,000.000 00 which he alleges is balance of his consultancy fees owed him for services rendered to the defendant as legal consultant. (3) The Honourable court has no power to assume jurisdiction on a matter of recovery of fees for a consultant or contractor. (4) This Honourable court under the Act establishing it cannot entertain or try a matter of this nature and character. The application is supported by a 9 paragraph affidavit deposed to by one Hassan Ali Mohammed principal legal officer II of the 1st defendant, and a written address wherein the defendant counsel Mr. Charles Yoila urged the court to upheld his objection as the court has no jurisdiction over unpaid fees accruable under a consultancy arrangement. Mr. Yoila contended and urged this court to refer to the processes in this suit particularly the claim of the plaintiff as there is no need to take other forms of evidence such as oral evidence when all the materials necessary to determine whether or not the court has jurisdiction are already before the court and there is no need to look at the statement of defence. Counsel call in aid the cases of Abraham and Another Vs. Olrunfemi 1991 I NWLR Pt. 165 55, 77-78 H-A. Fumudoh Vs. Aboro 1991 9 NWLR Pt. 214 210, 229; A.G. Federation Vs. Guardian Newspapers limited 1999 9 NWLR (Pt. 618) 187; Inakoju Vs. Adeleke 2007 4 NWLR Pt. 1025 423, 589 C-D; AG. Anambra State Vs. AG. Federation 1993 6 NWLR Pt. 302 692, 742 E –F Mr. Yoila, counsel to the defendant then proceeded to formulate a sole issue for determination which is, “Whether the preliminary objection ought to be sustained to hold that the court lacks jurisdiction and the suit should be dismissed in the circumstances before this Honorable Court” Counsel therefore referred the court to section 254 (c ) (I) (a) – (m) and (2) of the 1999 constitution of the Federal Republic of Nigeria as amended and section 7 of NIC A 2006 and submitted that “unpaid professional fees” does not form part of the jurisdiction of this court. Therefore, he contended the case of the plaintiff has no single good, just or equitable ground as it is an abuse of court process. He urge the court not to be allowed to be abused beyond its jurisdiction and referred the court to the cases of Tom tech Nig Ltd Vs. Fed Housing Authority 2009 18 NWLR (Pt. 1173) 358- 377 E-A; Ntuks Vs. NPA 2007 13 NWLR Pt. 1051 392 419-440 H-C; Anubo Vs. Aiyeleru 1993 3 NWLR (Pt. 280) 126, 142 A-B; Counsel finally called in aid the case of FRIN Vs. GOLD 2007 II NWLR Pt. 1044 F, 18-19; H –A to buttress the argument that since issue of jurisdiction is fundamental, the court should uphold his submission by the guiding principles in Madukolu Vs. Nkedilim 1962 2 SCNLR 341. On the 21st of October 2013, Mr. Yoila, counsel to the defendants /objector filed a 16 paragraph further affidavit in support of the notice of preliminary objection and a written address. In the said written address counsel also formulated a lone issue for determination which is as follows: “Whether the plaintiff was an employee of the National Assembly or a consultant/ contractor” Counsel contended that the claimants from all the facts and circumstances of his pleadings, he was NEVER an employee of the defendant, the National Assembly but a consultant/ contractor. The claimant, counsel contended was approbating and reprobating as he claims to be an employee in one breath and a consultant in another breath. Counsel urged the court not to indulged the claimant in such an enterprise as justice is not interested in scoring debating points. Counsel cited the cases of Ajide Vs. Kelani 1985 3 NWLR Pt. 12 248, 269 ; Ikeanyi Vs. ACB Ltd 1991 7 NWLR Pt. 205, 626; NIB Inv. (West African) Vs. Onnsone 2006 4 NWLR Pt. 969 172, 201 F-H; Julius Berger Nig Plc Vs. Nwagwu 2006 12 NWLR (Pt. 995) 518, 542 F-G . Counsel further submitted that the claimant is not subject to the rules and laws of the National Assembly as he is not in any way subject to the National Assembly Service Commission as provided by section 7 of the National Assembly service commission Act 2000. By section 91 of the labour Act, Laws of the Federation of Nigeria, a worker do not include persons exercising administrative, executive, technical or professional function as the claimant. In this wise, counsel further contended that the claimant has other avenues of ventilating his grievances other than the National Industrial Court which has no jurisdiction. On the 1st of November, 2013, the defendant /objector filed another affidavit which is further and better affidavit in support of the preliminary objection. The said affidavit has II paragraphs with a written address couch as defendant/ applicant reply address. In this address, counsel referred to the 3 issues formulated by the claimant /respondent for determination as follows: (1) “whether the facts and issues disclosed in the plaintiffs suit pertain to breach of contract of employment and therefore a labour issue and/or employment related issue. (2) Whether this Honourable court has jurisdiction to entertain and determine this matter. (3) Whether in view of the conflicting affidavits evidence in respect of the preliminary objection, it is desirable to strike out the preliminary objection and determine the substantive suit on the merit by calling evidence. Counsel, on the basis of these issues submitted that apart from the claimant beating about the bush, he has filed his claims in the wrong court and urged the court to discountenance all the submission on the above mentioned formulated issues on the ground that; (a) There is no law supporting the filing of cases bordering on nonpayment of contractual fees or recovering of legal practitioners fees at the National Industrial Court. (b) Section 251 (I) (P) (q) (r) of the constitution of the FRN 1999 as amended and section 7 (I) (P) (q) (r) of the Federal High Court Act LFN 2004 Cap F12 Confers jurisdiction on this matter on the Federal High Court. (c) Section 7 of the NICA 2006 do not recognize this type of claim. (d) This matter at hand is not a labour or employment matter and as such, it is not contemplated by the NIC Act. (e) Since this is not a trade dispute matter, the National Industrial court has no jurisdiction as the court contemplated to handle recovery of professional fee by a legal practitioner is the High Court of a state. Counsel call in aid the case of Oloruntoba Oju Vs. Dapamu (2012) 2 NILR Vol. 2 P. 31 Paragraph D-H. Counsel urged the court to look at the pieces of facts, deposition in the case file and not to be speculative as submitted by the claimant. Counsel cited the cases of savannah Bank of Nigeria Plc Vs. Central Bank of Nigeria 2009 6 NWLR (Pt. 1137) 237, 297; Bamgbegbin Vs. Oriare 2009 13 NWLR Pt. 1158 370, 396 C. Counsel further submitted that the claimant who filed his counter affidavit to this notice of preliminary objection did not obtain leave of this court before doing so contrary to order II (I) (2) of the rules of this court and as such the entire counter affidavit and the arguments therein should be discountenanced. Counsel contended also that the argument on counsel swearing and deposing to affidavit should be discountenance as it has no bearing with the issue of jurisdiction being canvassed as counsel should not divert attention from the real issue in contention by citing authorities that are irrelevant to the subject matter. Counsel call the attention of the court to the case of Adegoke Motors Vs. Adesanya 1989 3 NWLR Pt. 109 205, 285 -266 H-A. Counsel urges the court to decline jurisdiction. In his reply to the copious volumes of the defendants/applicants submission, the claimant /respondent also filed a compendium ranging from counter affidavit of 6 paragraphs (all subparagraphs inclusive), seven exhibits, dated 20th September 2013 written address dated the 19th of September 2013, a further counter affidavit in opposition to the preliminary objection dated the 28th of Octobers filed on the same date. By the written address of the claimant/respondent dated the 19th of September 2013, two issues were formulated for determination namely. (a) Whether the facts and issue disclosed in the plaintiff’s suit pertains to breach of contract of employment and therefore a labour and/or employment related issue (b) Whether this honourable court has jurisdiction to entertain and determine this matter. On issue one Mr. Victor Abasiakan -Ekim , counsel to the claimant /respondent submitted that from the pleadings of the claimant, he is complaining about the nonpayment of his outstanding salary covering January 2010 to August 2011 totally the sum of N6M which is a labour and or employment related matter. Counsel urged the court to look at the claimant’s offer of appointment letter, letter of acceptance, identity card the working hours, the work schedule and arrangement as contained in the counter affidavit sworn to on the 20th of September 2013 which are unchallenged and come to the conclusion that the claimant is a worker under the employment of the defendants. Counsel relied on section 91 of the labour Act Laws of the Federation of Nigeria 2004 on the meaning of “contract of employment” and the meaning of a “worker” counsel contended vehemently that the claimant do not come under the exceptions in section 91 of the labour Act and urge the court to hold that the claimant was employed by the defendant to perform contract of service as he was placed on a monthly salary or wages, given an office apartment, vehicle and office equipment, a secretary, a premises, a driver, and a work or duty schedule to show the scope of employment. Counsel call in aid the case of Shena Securities Co. Ltd Vs. Afropak Nig Ltd 2008 18 NWLR Pt. 1118 at 77 Counsel referred this court to section 7 (I) of the labour Act to buttress his submission that the claimants employment contains the name of the employer, the name, address of the claimant, and date of engagement, the nature of the employment, duration of the contract, term on termination, rates of wages and manner of calculation and payment and other terms and condition of the employment including any special condition of the contract which goes to establish the irrestible fact that the claimant is an employee of the defendant having satisfied section 7 (I) of the Labour Act; On issue two, Mr. Abasiakan – Ekim counsel to the claimant/respondent adopted all the arguments in issue one as captured above and urge the court to hold that it has jurisdiction to entertain and determine issues relating to breach of the term of contract of employment. Counsel referred the court to the case of Abdulraheem Vs. Oluruntoba Oju 2006 15 NWLR Pt. 1003 at 581 and urge the court to look at the claims of the plaintiff and his frontloaded processes to determine the issue of jurisdiction. He also opined that section 7 of NICA 2006 and section 254 (c ) (I) of the 1999 constitution of Nigeria (as amended) confers exclusives jurisdiction on this court on labour employment, Trade Union, industrial relation and other connected, related or matters arising therefrom. Counsel placed heavy reliance on the offer of appointment letter of 16th May 2008 and the acceptance letter of 23rd May 2008 and urge the court to regard this matter as an employment issue and dismiss the preliminary objection. In His further counter affidavit in opposition to the preliminary objection, the claimant /respondent filed a 29 paragraph counter – affidavit and a written address wherein an additional issue was formulated for determination by the court as follows; “Whether in view of the conflicting affidavit evidence in respect of the preliminary objection, it is desirable to strike out the preliminary objection and determine the substantive suit on the merit by calling evidence” Counsel submitted that where further evidence by way of affidavit evidence or oral testimony would be required to determine the preliminary point of law, then the issue of law ought to be raised as a defence to the suit i.e the substantive suit. Counsel cited the case of Jang Vs. INEC 2004 12 NWLR Pt. 886, 46, 83 to buttress his argument on this issue. Counsel contended further that in a situation where four affidavits are filed in all, in a preliminary issue of this nature, the issue is no longer preliminary as such an issue cannot be resolved without calling evidence as the proper thing to do is to discountenance the preliminary objection and proceed to full trial. Counsel relied on the case of Woherem JP Vs. Emereuwa 2004 11 M J S C 108. Counsel then urge the court to strike out the preliminary objection and order pleadings for the purpose of proceeding to full trial. Counsel submitted also that there are conflicts in the four affidavits filed by the parties namely the one deposed to by Hassan Ali Mohammed , Charles Yoila Esq., Onyinye Chikwendu Esq. and Dr. Isaac Essien, the claimant /respondent, which raises serious conflicts about the status of the claimant. Counsel urge the court to call oral evidence which can only be done at the substantive stage of trial. He cited the case of Falobi Vs. Falobi 1976 10 N SCC 576, 581; union Bank of Nig Plc Vs. Astra Builders W.A. Ltd 2010 5 NWLR Pt. 1186 I , 28. It is the further contention of Mr. Ekim counsel to the claimant/respondent that since the applicant counsel has brought himself to the middle of the conflict by deposing to Affidavits that are now in conflicts, it is a desireable thing for such counsel to be called into the witness box for the purposes of cross examination with a view to resolving the conflict. Counsel cited the case of Ekpe Vs. Wanogho 2004 18 NWLR (Pt. 905) 394, 412 Counsel also submitted that the further affidavit and the written address of the applicant has no basis in law as the rules of this court and the practice of this court has no room for such innovation of counsel and as such the entire process should be discountenanced. Counsel cited the case of Saraki Vs. Kotoye 1992 23 NSCC (Pt III) 331, 349 – 350 Mobile producing Nig Unltd Vs. Monokpo counsel posited again that by virtue of section 9 I (b) of the labour Act the claimant who was working as a consultant with the defendants was not a person exercising administrative, executive, technical or professional functions as public officers. Counsel further urge the court to disregard the distinction which the applicant attempts to create between the words “wages”, “Salary” and “fee” and contended that these words, no matter their meanings in the Labour Act, black law dictionary and employment law and practice, all go a long way to accommodate the claimant/respondent as a worker or employee of the defendant with a contract of employment. Counsel finally urge the court to dismiss the preliminary objection. Before going into the consideration of the merit or otherwise of the defendants/applicants objection, let us clarify certain definitional issues; who is an employee and who is an employer? The definitions of these terms will help us in determining the jurisdiction of this court; Employee is define as: a. 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” Employer is defined as: 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” see section 54 (I) of the NIC Act 2006. I have carefully peruse through the originating processes of the claimant/ respondent, the application under consideration, the numerous affidavits numbering five and the various submissions of counsel in their written addresses numbering five in all in support of their respective positions. The central and critical issue in the objection of the defendant /applicant in his motion on notice dated the 15th of July 2013 is the jurisdiction or otherwise of this court to entertain the claimant/respondent suit as constituted. It should be noted 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 (if any ) see the case of P& C.H.S. Co. Ltd Vs. Mig70 Nig. Ltd. 2013 3 NWLR (Pt. 1333) at 555. It is also trite law that jurisdiction of a court is derived from the statute creating or setting up the case. In the case of the National Industrial Court it is the third alteration to the 1999 constitution of the Federal Republic of Nigeria, the National Industrial Court Act 2006 and other subsidiary legislations. Going by the objections in this interlocutory application, the sole issue that calls for determination can be succinctly stated as follows. “Whether or not the jurisdiction of this court is ousted by the claims of the claimant in this suit as presently constituted by the laws and statute setting up the National Industrial Court of Nigeria.” In delving into this issue for determination, let me consider the claims of the plaintiff in his originating processes particularly the amended statement of claim or facts filed in the registry of this court on the 15th of January 2014 (a) A declaration that the withholding and refusal of the defendants to pay claimant his lawfully entitlement for services rendered to the defendants from January 2010 to August 2010 despite several demands and entreaties has caused untold hardship and pain, emotional and psychological torment. (b) The sum of N6M being the accumulated fees at the rate of N750,000 per month from January 2010 to August 2010 for services rendered to the defendants. (c) The sum of N3M general damages for wrongful refusal to pay the claimant his entitlement as at when due (d) Interest at the prevailing bank rate of 12% on the sum of N6,000.000.00 which became due on and from the 31ST August 2010 to 30th April 2013. (e) Post judgment interest of 10% an the judgment sum until the liquidation of the judgment. (f) The cost of this action. From the above quoted claims, the plaintiff is claiming a sum of money due to him as a worker under a contract of employment. Now who is a worker? 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 section 91 of the labour Act and the case of Mobile producing Nig Unltd and Another Vs. Udo Tom Udo 2008 LPELR 8440 P. 68 Paragraph A-C. Now, what is contract of employment? 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. This definition applies to workers strictly defined to the exclusion of the management staff. See the case of Shena security company Ltd Vs. Afropak Nig Ltd 2008 LPELR 3052 SC 13 Paragraph A-C. 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, 257 277 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 cases 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 maters 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 noted portions of the section of the 1999 constitution of Nigeria bordering on the jurisdiction of this court the following issues and principle are quite clear as far as the exclusive jurisdiction of the National Industrial Court of Nigeria is concerned. (I ) 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. Now, apart from the claimants reliefs, let me look at the letter of employment or appointment; Exhibit ‘A’ attached to the claimants counter affidavit dated and filed on the 20th of September 2013 reads “ following your success at the interview conducted on 5th and 6th September 2007. I have the pleasure to inform you that the National Assembly has offered you appointment as consultant on legal matters for a period of one year from 1st June 2008 to 2nd June 2009.” Exhibit B attached to the same affidavit of the claimant reads in paragraphs 2 as follows: “ this is to inform you of my acceptance of your offer as consultant on legal matters under the UNDP/NASS support programme.” It is also worthy of note that these exhibits and the reference paragraphs of the counter affidavit has not been denied by the applicant. It is trite law that unchallenged evidence need no further proof. I therefore have no option than to act on it; From the above letter of offer of appointment dated the 16th of May 2008 and the acceptance of appointment as consultant letter dated the 23rd of May 2008, the following facts are glearing (1) There was offer of employment by the defendant under the NDP/NASS support programme. (2) The nature of the employment and the duties are disclosed (3) The scope of the assignment is well stated. (4) The consideration, the salary per month and the total salary per annum is stated. (5) The letter of appointment was issued and signed by the 2nd defendant. (6) The claimant /respondent accepted the offer within the time frame specified for that purpose. A perusal of the application of the objector shows also that paragraph 3 (a) , (b) (c) (d) ,(e) (f) (g) (h) (i) (j) and (k) of the claimant/respondents counter affidavit are not denied in anyway and as such I am bound to act on the unchallenged affidavit evidence. A cursory look at the unchallenged evidence reveals the following; (1) The claimant was given an office accommodation within the premises of the defendants. (2) The claimant was given official car with registration No. NASS FL 387 SEN and a driver. (3) The claimant was given a secretary. (4) The claimant was given official accommodation. (5) The claimant was given official ID Card, office equipment and opportunity to be treated as a staff in the defendants staff clinic. From the provision of the third alteration to the constitution of Nigeria 1999, it is my view that the claimant is 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 and incidented to employment and labour under the Labour Act. Furthermore, the claim of the plaintiff in this case as constituted borders on unfair labour practice under section 254 ( c) (I ) (f) of the constitution as amended. For the benefit of doubt, the claim also touches on the payment or non-payment of his salaries, wages or entitlement of the employee/worker under section 254 ( c) (I) K of the 1999 constitution as amended and I so hold. It has been hotly contested that the depositions of the claimant affidavit was offensive of section 115 of the evidence Act 2011; it was also contested that the further affidavit and the written addresses of the applicant was superfluous and invalid having not obtained the leave of the court. I have decided deliberately not to comment on these contentions purposely to allow the court look at the entire arguments of the parties in this objection. This is so because sections 12 (2) (b) of the NICA 2006, order 5 (3) of the 2007 Rules of these court and section 37 (3) (a) and (b) of the Trade Dispute Act CAP T8 Laws of the Federation of Nigeria 2004 gives this court the discretion to do so. I therefore derogate from the application of the evidence Act and the rules of procedure in respect of the stated contentions and submissions only; It is unfortunate that parties in this suit can take this interlocutory objection so far up to the extent of filing five affidavits in all and five written addresses when the substance of the suit is still laying low; I do not think, the energy dissipated on this interlocutory issue is worth the legal drills. However, from the totality of all the reasoning and conclusions stated above in this ruling, I hold that the claim of the plaintiff/claimants falls squarely under the jurisdiction of this court. The defendants objection dated the 15th of July 2013 is hereby dismissed. The cases shall proceed to trial. ------------------------- Hon. Justice P.O Lifu (JP.) Judge