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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 27th May, 2014 SUIT NO: NICN/LA/227/2013 Between: Imasuen Claimant AND Bellview Airlines Ltd & 8 Others Defendants REPRESENTATION Parties absent. Y.A Kadiri Esq. for the Claimant with R.E Idaeho Esq. K.T. Olawuni Esq. with A. Uka Esq. A.U. Ajibowu Miss for the Defendant RULING By a Notice of Preliminary Objection dated 23rd December 2013 and filed on the same date, the Defendant/applicant prayed the court for the following reliefs: (1) Dismissing this suit in its entirety for lack of jurisdiction (2) An order striking out this suit for disclosing no reasonable cause of action against the 2nd to the 9th defendants. The grounds of the application are as follows: (1) The subject matter is under the exclusive jurisdiction of the Federal High Court (2) This action is statute barred having been brought outside 2 years contrary to section 29 of the Warsaw Convention 1929. (3) This action is defective for misjoinder of parties as the 2-9th defendants are not necessary proper or desirable parties as there is no reasonable cause of action disclosed against them. The application is supported with a 10 paragraphs affidavit a further affidavit of 18 paragraphs, a written address of 15 pages and a reply on point of law containing 19 pages. In the written address of the defendant/applicant, three issues were raised for determination namely: (1) Whether this Honourable court has the jurisdiction to entertain this suit (2) Whether the suit as constituted is statute barred. (3) Whether from the facts and circumstance of this suit, this Honourable court ought to strike out this suit for disclosing no reasonable cause of action against the 2nd to 9th defendants/applicants On issue one Mr. Olawuni contended that jurisdiction is a threshold issue being fundamental. He referred the court to the cases of Kasunmu Vs. Shitta bey 2006 17 NWLR (Pt. 1008) 372 at 421; Abdulraheem Vs. Oloruntoba - Oju; Makinde Vs. Ojeyinka 1997 4 NWLR (PT 497) 80; Bob Vs. Akpan 2009 8-9 NMLR 69. To the applicant, by virtue of section 251 (i) (k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended ) the Federal High Court has the exclusive jurisdiction over aviation and safety of aircraft” as ordinary meaning should be given to the construction and interpretation of such provisions that are clear and unambiguous. Counsel cited the cases of Arabella Vs. NAIC 2008 4-5 SC part II P. 211 Madukolu Vs. Nkemdilim 1962 2 NSCC 374 at 379 – 380; D.E. N.R Ltd VS. Trans Int’L Bank Ltd 2008 18 NWLR Pt. 1119 399 at 417 . Hassan Vs. Aliyu (2010) 17 NWLR (Pt. 1223) 591. Counsel urged the court to decline jurisdiction. On issue 2, counsel argued that the ill fated flight crashed on 22nd October 2005 while this action was instituted on May 7th 2013 after about 8 years on the accrual of right of action contrary to section 29 (1) of the Warsaw convention 1929 which stipulated just 2 year calculated from the date of arrival of aircraft or from the date on which the carriages stopped. Counsel cited the cases of Hassan Vs. Aliyu (Supra) Egbe Vs. Adefarasin 1985 I NWLR (Pt 3) 549 at 568. On issue three Mr. Olawuni submitted that a party whose presence is important and essential for the just determination of this suit ought to be joined and that since this is not the case in this matter, the names of the 2nd to the 9th defendants should be strike out for misjoinder of parties. Counsel contended further that the 2nd to the 9th defendants were not involved personally in the employment contract with the claimant or the deceased as they are merely directors and function separately from the company as a juristic person. Since they are not responsible in any way for the ill fated aircraft crash and the 1st defendant is a legal entity of its own, there is no way they can be a desirable party to this suit. Counsel urge the court to treat such as a misjoinder, an abuse of court process and strike out the 2-9th defendants names. He call in aid the cases of Begwai Vs. Goda 2011 7 NWLR Pt. 1245; Saloman Vs. Salomon & Co. Ltd 1897 AC 22; Adeniji Vs. State 1992 4 NWLR Pt. 234 at 248 Okoreaffia Vs. Agwu 2008 12 NWLR (Pt. 1100) 165 at 189; UBN Plc Vs. Umeoduagu (2004) 13 NWLR Pt. 890 352 at 362- 365; Julius Berger Nig Plc Vs. Toki Rainbow Community Bank Ltd 2010 All FWLR (Pt. 552) 1765 at 1779. Counsel to the defendant /applicant contended further that a cause of action is said to be reasonable when the statement of claim discloses some question fit to be decided by a judge notwithstanding that a case is weak or unlikely to succeed. Counsel invited the court to look at the statement of claim and the writ of summons. Counsel contended that the originating processes did not disclose any claim or relief against the 2nd to the 9th defendant but only against the 1st defendant. Assuming without conceding, counsel posited, that the 2nd to the 9th are agents of the 1st defendant, they only acted for a disclosed principal, the 1st defendant and as such, such agent cannot be liable for any act of the disclosed principal. The 2nd to 9th defendant counsel submitted, acted as the directing mind and will of the 1st defendant by conveying management decision to the Respondent and as such, cannot be held liable for that action. Counsel called in aid section 283 (2) of Companies and Allied Matters Act Cap C 20 LFN 2004, Section 63 (1) of Companies and Allied Matters Act also, and the cases of Aruadiume Vs. Ibok 2006 6 NWLR (Pt. 975) 158 at 177; Osigwe Vs. PS PlS mgt consortium Ltd 2009 3 NWLR (Pt 1128) 378; Ogbaji Vs. Arewa Textile Plc 2000 11 NWLR (Pt. 678) 322 at 337 counsel further urge the court to strike out the names of the 2nd to the 9th defendant as there is no question to be determine in this suit between the respondent and the 2nd -9th applicants in respect of the death arising from the plane crash. In adumbrating on the written submission, Mr. Olawuni further argued that a closer look at section 254 (c ) (2) of the 1999 Constitution of Nigeria as amended reveals that this court has no jurisdiction over the subject matter in question as presently constituted as the section talks about work force, not passenger, luggage or goods. He contended that whatever promise made to the deceased family was outside the contract of employment. Consequently such promise is not and cannot be enforced. The High Court, he submitted is the right place to enforce such simple contract. Furthermore, the defendant counsel submitted that the claim of the claimant is based on a repealed law of workman compensation. In response to the Notice of Preliminary Objection dated the 23rd December, 2013 filed by the defendant/applicant, the counsel to the claimant respondent Mr. Kadiri filed a counter affidavit of 48 paragraphs, a further counter affidavit of 8 paragraphs with 13 exhibits and a written address of 48 pages. After a brief recounting of the relevant facts in this case, counsel then formulated three issues for the courts determination namely. (1) Having regards to the subject matter of this suit and the provisions of the constitution of the Federal Republic of Nigeria 1999 (as amended) whether this Honourable Court has the requisite jurisdiction to entertain this Matter. (2) Having regard to the facts averred to in the statement of facts, the reliefs sought, and the relevant law, whether this suit as presently constituted is statute barred; and (3) Having regard to the position of the 2nd, 3rd 4th 5th, 6th 7th, 8th, and 9th defendant/applicant in the 1st defendant’s company and their position in relation to the employment of Late Captain Lambert Imasuen (the deceased) whether they are necessary and/or proper parties in the instant suit? On issue one, Y.A. Kadiri Esq. submitted that section 254 (c)(i) of the 1999 Constitution of the FRN (as amended) accommodates the entire claims of the respondent as the expanded multijurisdictional context of the National Industrial Court of Nigeria covers all employment, labour and workers benefits, allowances, emoluments etc. Counsel submitted further that parties in this motion are ad idem as to the position of the deceased Pilot Lambert Imasuen as an employee of the defendant/applicant. That the first contract arose out of contract of employment between the deceased and the defendants while the 2nd contract was between the administration of the estate of the deceased captain – pilot and the defendants/applicant. Counsel quoted copiously from the provisions of the third alteration Act and the relevant paragraphs of the defendants statement of defence, affidavits in this motion and submissions in written address in support of this Notice of Preliminary Objection to say that there is a clear cut admission of the fact that the deceased pilot Lambert Imasuen was an employee of the defendant. Counsel contended that the cases of Cameroun Airline and Arabella are not on all fours with the facts under contention and therefore are not relevant while the case of Madukolu Vs. Nkedilim supports the position of the respondent/claimant in the Notice of Preliminary Objection. Counsel contended further that the claims of the respondent is not an aviation claims but an employment claims under section 254 ( c) of the 1999 constitution as amended and section 7 (1) of the National Industrial Court Act of 2006 and only this court has exclusive jurisdiction on it as section 7 of NATIONAL Industrial Court Act (NICA) 2006 and section 254 ( c) of 1999 constitution (as amended) makes provision for issues and items not provided for under section 251 of the constitution (as amended). Counsel cited the case of West Ham Church Warden and Overseers Vs. Fourth City Mutual Building Society 1892 I QB 654 at 658; University of Calabar Vs. Dr. Inyang Oduok 2007 12 NWLR Pt. 1049 P. 662. Counsel drew the courts attention to the claims relating to promises made to the estate of the deceased Pilot as to the payment of the sum of 100,000 Dollars with the promise to pay the remaining 90,000 Dollars after the initial payment of 10,000 dollars. Counsel further referred the court to the provisions of the employee’s Compensation Act which entitles the decease pilot estate to the compensation for death, etc arising out of or in the course of employment. Counsel cited the case of John Vs. Igbo Etiti Local Govt. Area 2013 7 NWLR Pt. 135 2 P. 1 at 17 to show that the National Industrial Court has the exclusive civil jurisdiction over matters contained in the claims and reliefs of the claimant /respondent. On issue two, Mr. Kadiri posited that this case is not statute barred as the war –saw convention cited by the applicants’ counsel only apply to international flight bordering on carriage of goods. The issue and flight in contention falls squarely under local flight from Lagos to Abuja which has no bearing with the application of the Warsaw convention. That the convention is only relevant when one is talking about passengers, baggage or cargo as the deceased pilot, an employee of the defendants/applicants do not fall under any of the categories stated above. The way-bill in relation to cargo and the ticket in relation to passengers are essential ingredients which are absent in the instant case, Mr. Kadiri insisted. Claimant/respondent counsel submitted also that in the event that the court rules that the Warsaw Convention is applicable to passengers or the pilot of an aircrafts is considered a passenger for the purpose of the application of the warsaw convention, the pilot an employee can then benefit from the provision of section 254 (c) (2) of the 1999 constitution as amended. Furthermore, it is the contention of Mr. Kadiri Counsel to the claimant/respondent that the express mention of a particular thing means the exclusion of another under the principles of interpretation. He contended further that section or article 29 (2) of the convention says the method of calculating the period of limitation SHALL be determined by the law of the court seized of the case. Counsel urged the court to uphold the principle of sanctity of agreement and contended that the agreement by the defendant to pay to the estate of the deceased employee the balance of $90,000 inputs an obligation worthy of investigation by the court. Counsel referred the court to various exhibits concerning this fact or issue and the deposition in the affidavits of the claimant/respondent. Counsel invoked the principle of equity in its ramifications and urged the court to hold that the action is not statute barred as the defendant cannot approbate and reprobate in any respect. Mr. Kadiri emphasised on the various e-mails, telephone calls, letters and all correspondences between the claimant and the defendant to establish the fact that all these communications form part of one and the same transaction until 2013 when this action was commenced. Counsel cited the case of Administration/Executors of Estate of General Sani Abacha Vs. Eko Spiff 2003 I NWLR (Pt. 800) 114 at 171, 172 -173. Counsel urged the court to discountenance the argument of the defendant applicant and to hold that this suit is not statute barred. On issue three, counsel referred the court to the case of Buhari Vs. Yusuf (Supra) on the definition of a necessary party to a suit. Counsel referred variously to the exhibits, paragraphs of counter affidavits and positions of his written addresses to establish the fact that the 2nd – 9th defendants were part of the 1st defendants’ management responsible for taking decisions and actions as they relate to the deceased employment including the admission of liability relating to deceased death benefits to his estate. Mr. Kadiri submitted further that the 2-9 defendants in this suit, apart from the fact that they are persons who has such an interest in this case of which the court cannot render a final decree without affecting their rights, also acted outside the limit of their agency and as such can be sued and can be personally liable as well as they have gone ahead to agree to pay the balance of 90,000 Dollars to the deceased estate without fulfilling it, rather they have gone ahead to float another airline company known as First Nations Airways. The 2nd- 9th defendants counsel contended are guilty of fraud, misrepresentation and deceit and illegality which are outside their scope of authority. This they have done by retaining the office of the 1st defendant as the office of First Nations Airways support services Ltd under First Nations Airways with the directors still the same as that of 1st defendant but with minor changes. Counsel cited the case of RE-NDIC (liquidator of Alpha Merchant Bank Plc ) T. Adesanya and Another Vs. J. Lawal and Others 2007 NWLR (Pt. 1032 ) P. 54 at 68 to show that the 2nd to 9th defendants have sufficient interest in this suit since they have cogent connection and association with the subject matter such that they will be materially affected by the outcome of this action It is the contention and submission of Mr. Kadiri that if the 2nd - 9th defendants are left off the suit through striking out of their names, the judgment of this court in this suit will be rendered nugatory. Counsel finally urged the court to dismiss the objection with substantial cost as most of the issues raised in the reply on point of law are fresh issues. Moreover the issue of entitlement to claims emphasized by the defendant counsel should be reserved and treated at the substantive stage of hearing. In his reply on point of law, Mr. Olawuni; filed an address of 19 pages dated the 1st April 2014 wherein the court was urged upon to consider only the writ of summons and the statement of claim. Counsel referred to the case of PDP Vs. Sylva 2012 13 NWLR (Pt 13 16) 85 at 127. Mr. Olawuni further submitted that since trial in this case is started denovo, the parties are at liberty to restructure or reorganize their cases as if no trial ever took place. He further stated that section 17 of the Warsaw Convention only limits protection to passengers. Counsel cited the case of Akapo Vs. Hakeem – Habeeb (1992) 6 NWLR Pt. 248 297 at 297 to buttress his argument to the effect that payment of compensation to deceased family pursuant to the Warsaw Convention is not incidental to the employment of the deceased employee pilot of the defendants. Counsel posited further that relief A, C, D, F, H and I of the statement of claim/facts are not in any way connected or related to employment of the deceased employee pilot; that it is only relief B, E, G, and J that has any bearing with the deceased employee employment though it was premised under a wrong and non-existing statute. On the issue of Limitation Law, counsel reiterated his argument insisting that this case is statute barred by virtue of the Warsaw Convention as amended in 1955. Counsel also repeated his argument on the date of accrual of right of action and insisted that the claim of the claimant cannot be maintained outside the 2 years statutory period. By the provision of section 254 (c)(I ) of the 1999 constitution as amended, the National Industrial Court has no jurisdiction to entertain breach of contract claim says Mr. Olawuni as its jurisdiction is limited to employment matters. On the issue of whether or not the 2nd to 9th defendants are necessary parties to this suit counsel submitted that their presence will not be necessary in any way as the suit did not disclose any reasonable cause of action as the 2nd to 9th defendants are not link to the death claims of the deceased pilot employee. Consequently, counsel insisted on the need to draw a distinction between a desirable party and a necessary party. Defendant counsel also submitted that the 2nd to 9th defendants are entitled by law to sit on the board of as many companies as they so desire as that has nothing to do with fraud, deceit or misrepresentation or illegality. The joinder, counsel contended was to harass and intimidate the 2nd to 9th defendants and as such should be disallowed by the court. Counsels urge the court to uphold the objection. I have gone through the entire content of the notice of preliminary objection, the various affidavits, exhibits and the legal authorities of the counsel for the parties. The objection of the defendant borders principally on the jurisdiction of the court to adjudicate on this case which is centered on the fact that it is only the Federal High Court that has jurisdiction over the subject matter of aviation, the matter is statute barred and the court has no jurisdiction over 2nd to 9th defendants on the basis of misjoinder. In this context, I shall proceed to formulate a lone issue for determination which is: Considering the claims and the reliefs of the claimant in this suit as constituted, does this court have jurisdiction and the competence to adjudicate on this matter and over the parties as presented? Jurisdiction, it must be said is a threshold issue. Once a court do not have jurisdiction, anything such a court does amount to a nullity. This is trite Law; In determining the issue of jurisdiction, it is the claim endorsed on the writ or stated in the statement of claim that will be considered, not the facts averred in the statement of claim or the affidavit evidence to be relied on by the plaintiff. It is a misconception to refer to facts pleaded in the statement of claim or averment in affidavit as component of cause of action to be relied on in ascertaining the jurisdiction of the court. This is the position of the Supreme Court in the recent case of Society BIC S.A. Vs. Chargin Ind. Ltd 2014 4 NWLR (Pt 1398) 497. In other words, Jurisdiction is determine by the plaintiff’s claim and not the defence or any other process. It is the writ of summons and the statement of claim which contains the claim before the court that has to be examine in detail to ascertain whether it comes within the jurisdiction conferred on the court by the constitution and/or statute. See the case of PDP Vs. Sylva 2012 13 NWLR (Pt. 1316) 85 Osoh Vs. Unity Bank Plc 2013 9 NWLR Pt. 1358 SC I, P& C.H. S. Co. Ltd Vs. Migfo Nig Ltd 2013 3 NWLR Pt. 1333 at 555. It should also be noted that the statute setting the court also spell out the jurisdiction of the Court In the case of the National Industrial Court it is the National Industrial Court Act 2006, the third alteration to the 1999 Constitution of the Federal Republic of Nigeria and other subsidiary legislation. The central question to ask at this point in time is “what are the claims and reliefs of the claimant before the court? The claim as endorsed on the writ and the statement of facts reads: (a) A DECLARATION that the Claimant and all the dependants of late Captain Lambert Imasuen, are entitled to the sum of US$ 90,000.00 (Ninety Thousand United States Dollars), being the balance of the monies admitted by the defendants as outstanding compensation due and accruing to the claimant, as the Administratrix of the Estate of Late Captain Lambert Imasuen who was a victim of the crash of an aircraft owned, managed and operated by the defendants which occurred on 22nd October 2005 at Lisa village Ogun State. (b) A DECLARATION that the Claimant and all the dependants of Late Captain Lambert Imasuen, are entitled to the sum of N42, 000.00 (Forty-Two Million Naira), being the statutory entitlement accruing to the Estate of Late Captain Lambert Imasuen who died in the course of his employment with the Defendants by virtue of the provisions of the Workmen’s Compensation Act, Cap W6 Laws of the Federation of Nigeria 2004. (c) A DECLARATION that the Claimant and all the dependants of Late Captain Lambert Imasuen, are entitled to the sum of N10,000.00 (Ten Million Naira) as general damages for the psychological trauma, emotional distress, mental torture, pain, anguish, hardship, and depression occasioned by the neglect, default, failure and /or refusal of the Defendants to advance to the claimant the balance of the admitted compensation due and accruing to the Estate of Late Captain Lambert Imasuen. (d) A DECLARATION that the Claimant and all dependants of Late Captain Lambert Imasuen, are entitled to the sum of N30, 000,000.00 (Thirty Million Naira) as aggravated damages for the psychological trauma, emotional distress, mental torture, pain, anguish, hardship, and depression occasioned by the neglect, default, failure and /or refusal of the Defendants to advance to the Claimant the balance of the admitted compensation due and accruing to the Estate of Late Captain Lambert Imasuen. (e) A DECLARATION that the Claimant and all the departments of Late Captain Lambert Imasuen, are further entitle to all other benefits and entitlements accruing to the Estate of Late Captain Lambert Imasuen a victim of the crash of an aircraft owned, managed and operated by the Defendants, and as an employee of the Defendants who died while performing his duty in the course of his employment. (f) AN ORDER compelling the Defendants to pay to the Claimant, the total sum of US$90,000 (Ninety Thousand United States Dollars), being the balance of the monies admitted by the Defendants as outstanding compensation due and accruing to the Claimant, as the Administratrix of the Estate of Late Captain Lambert Imasuen who was a victim of the crash of aircraft owned, managed and operated by the Defendants which occurred 0n 22nd October 2005 at Lisa Village, Ogun State. (g) AN ORDER compelling the Defendant to pay to the Claimant the sum of N42, 000,000: 00 (Forty Two Million Naira), being the statutory entitlement accruing to the Estate of Late Captain Lambert Imasuen who died in the course of his employment with the Defendants by virtue of the provisions of the Workmen’s Compensation Act, Cap W6 Laws of the Federation of Nigeria 2004. (h) AN ORDER compelling the Defendant to pay to the Claimant the sum of N10,000,000:00 (Ten Million Naira) as general damages for the psychological trauma, emotional distress, mental torture, pain, anguish, hardship, and depression occasioned by the neglect, default, failure and/or refusal of the Defendants to advance to the Claimant the balance of the admitted compensation due and accruing to the Estate of Late Captain Lambert Imasuen. (i) AN ORDER compelling the Defendant to pay to the Claimant the sum of N30,000,000:00 (Thirty Million Naira) as aggravated damages for the psychological trauma, emotional distress, mental torture, pain, anguish, hardship, and depression occasioned by the neglect, default, failure and/or refusal of the Defendants to advance to the Claimant the balance of the admitted compensation due and accruing to the Estate of Late Captain Lambert Imasuen. (j) AN ORDER compelling the Defendant to pay to the Claimant all other benefits and entitlements accruing to the Estate of Late Captain Lambert Imasuen as a victim of the crash of an aircraft owned, managed and operated by the Defendants, and as an employee of the Defendants who died while performing his duty in the course of his employment. (k) Interest on the sums stated in reliefs (a),(b), (c),(d) and (e) above at the rate of 21% from June 2012 till judgment is given and 10% thereafter until the judgment sum is fully liquidated. (l) The Claimant’s Solicitors fee, expenses and cost of this action. The pivotal issue forming the pedestal or platform for the entire claim is employment or contract of employment. All the claims in this suit emanates from the contract of employment. In other words, all the declarations, orders and other ancillary relief such as interest and solicitors fees are all connected with, arising from, incidental to or related to labour, employment and workplace issue. The claims refers to one Captain Lambert Imasuen as an employee or worker of the defendants who died in the course of his employment in a plane crash, the plane owned and managed by the defendants. As a preliminary issue, a voyage into some definitional terms in labour law and Industrial relation context will be of tremendous assistance. The first question is, who is an employee and an employer? According to section 54 (I) 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” From the claims and reliefs of the claimant, he is claiming through his administratrix of his estate various sums of money supposedly due to his estate 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 L I 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 Mobil Producing Nig Limited & Another Vs Udo Tom Udo 2008 LPELR 8440 P 68, Para. A – G “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 Afrobak Nig Ltd 2008 LPELR 3052 SC 13 Para. A – C. From the above exposition, it is glaringly clear from the claims and reliefs in this case that the claimant was a worker, an employee having a contract of employment oral or written with the defendants. By the provision of section 254 (c) (a) 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 relations and matters arising from work Place, the condition 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 Union Act, Labour Act, Employees Compensation Act or any other enactment replacing the Act or Laws. (f) Relating to or connected with unfair practice or international best practices in labour, employment and industrial relation matters. (k) Relating to or connected with dispute 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.” The word “Notwithstanding” used in the opening sentence of section 254 (c) (I) of the 1999 Constitution as amended means that any other provisions in the 1999 Constitution relating to employment is now exclusively vested in this court. It is immaterial whether the State High Court, the FCT High Court or the Federal High Court hitherto had jurisdiction. In the recent case of Coca cola Nig Ltd & Others Vs Akinsanya 2013 I ACELR 28 at 110 the court of Appeal, Lagos Division has this to say; “I hold that the phrase ‘employment’ mention in the third Alteration Act embraces the mode of private employment of the respondent with the appellant and is subject to the exclusive jurisdiction of the National Industrial Court …………., the third Alteration Act is thus a deliberate and radical break from the past as it has widened the hitherto narrow and specialized jurisdiction of the National Industrial Court to new areas like issuance of injunctions and exclusive jurisdiction over employment matters in all strata of the Labour Market” This decision was given by a panel of five Justices of the Court of Appeal recently on interpretation of the third alteration to the 1999 Constitution of Nigeria. Section 251 of the 1999 Constitution of Nigeria is therefore not applicable to this suit neither is section 29 or section 55 of the Warsaw Convention of 1955 as the flight in question was a local flight while the claimant was an employee not a passenger or a cargo. Consequently the issues of Statute of Limitation do not arise. Furthermore, the claimant has raised issues of entitlement, benefits and compensation due to a deceased worker, employee or staff of the defendant under a declaratory prayer or relief which is in Law a continuous damage or injury within the context of employment. In such a situation of continuance of damage or injury which has not ceased, the defence of limitation or statute barred is not available to the defence. In the case of Attorney General of Rivers State Vs AG. Bayelsa State 2013 3 NWLR (Pt. 1340) 123 SC Galadima JSC at page 149 has this to say: “where such allegation of continuing damage or injury has been raised, in such a situation there is the need for the trial court to take evidence before determining the point ……………………., the Supreme Court must look into the issue and would not with a wave of hand deprive the plaintiff its legal capacity to ventilate its grievances” I cannot with a wave of hand determine the declaratory and other reliefs of the claimant in limine without looking into is by calling evidence or going into trial. Moreover, from the earlier quoted portions of section 254(c)(i) of the 1999 Constitution of Nigeria as amended, 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 localized 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 with, relating to, incidental to disputes on payment or nonpayment of salaries, wages, benefits, entitlement etc. of any person in the Federal Republic of Nigeria both private or public employment. The claims of the claimants as constituted in this suit also borders on unfair labour practice under section 254 (c)(i)(f)(k) of the 1999 Constitution as amended. On the issue of misjoining of parties and cause of action, the defendant/applicant counsel has urged the court to strike out this suit for want of reasonable cause of action and for misjoining the 2nd to the 9th defendants. In the case of Society BIC S.A Vs Chargin Industries Ltd (Supra) the Supreme Court said “In determining the cause of action in a suit, the only documents which the court will look at are the writ of summons and the statement of claim. Cause of action itself means the aggregate of facts which when proved will entitle a plaintiff to a remedy against a defendant. Therefore, in determining whether the plaintiff’s cause of action is within its jurisdictional competence, the court limit itself to the plaintiffs statement of claim and writ of summons. The inquiry does not extend to the defendants pleadings even though same had been filed in compliance with the rules of court” Paragraph 3 of the claimants statement of facts reads: ‘3’ The 2nd to 9th defendants are the Directors of the 1st defendant who, at all times material to the fact relating to and circumstances surrounding this case, were responsible for all the actions, decisions, management, control and operations of the 1st defendant, whose last known address of business and or abode, was the office of the 1st defendant at No. 66B Opebi Road Ikeja Lagos ‘5’ “The claimant avers that Captain Lambert Imasuen (‘the deceased”) was employed by the 1st defendant in the month of October 2004, as a Pilot to fly the aircraft belonging to the 1st defendant pursuant to the schedule of instruction detailed by the 2nd to 9th defendants herein as directors of the 1st defendant Company” In the case of ADH Ltd Vs. Minister FCT Abuja 2013 8 NWLR Pt. 1357 SC 493 the Supreme Court held as follows: A person can be joined as a defendant where he is (a) A necessary party because the plaintiff’s case or the defendant’s case in the existing action cannot be effectively and completely determine without the joinder; or (b) A desirable party because of his interest in the subject matter by the decision in the suit It is my considered view that based on the averments in the statement of claim, the 2nd to the 9th defendants are desireable parties as they have interest in the subject matter of this suit and would be affected by the decision in this suit; moreover, their presence will enable issues in controversies to crystalise to enable the court completely and finally settle all issues with a view to minimising or avoiding multiplicity of actions. See section 14 of National Industrial Court Act 2006. Furthermore, it is trite and a common principle of law that a misjoinder or non-joinder of a party cannot defeat a cause or matter. A misjoinder or non-joinder (whatever the case may be of a party will not be fatal to the proceedings. See the case of FGN Vs Shobu Nig Ltd 2014 4 NWLR (Pt. 1396) 45 at 63. Consequently, the court will proceed to deal with the matter in controversy regarding the rights and interest of the parties before it in the instance case. See also the case of Ngige Vs Akunyili 2012 15 NWLR (Pt. 1323) 343 From the totality of what I have said so far in this ruling including the reasoning and the conclusions, I hold that this court has jurisdiction to entertain this suit as presently constituted and presented. The Notice of Preliminary Objection is hereby dismissed and I make no order as to cost ----------------------------- Hon. Justice P.O Lifu JP. Judge