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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 21th NOVEMBER, 2013 SUIT NO: NICN/ABJ/46/2013 Between: James Omagbemi and Two Others Claimant AND Globestar Engineering Company Nigeria Limited & Another Defendant REPRESENTATION Claimant and Defendant absent. E.E. Eregare Esq. for the Defendant /Applicants; Bright Eguakona Esq. for the Claimant /Respondent RULING On the 23rd of July 2013, this court set down for hearing the point of law raised in paragraph 13 of the first defendants statement of defence which is to the effect that; (a) No dispute arises in this suit as between an employer and employee to vest jurisdiction on this honourable court. (b) The action is an abuse of process of the honourable court, in that it seek to impose an employee on an unwilling employer. In his written address filed on the 4th of July 2013 but dated the 2nd of July 2013, E.E Eregare Esq. counsel to the first defendant/applicant formulated two issues for determination. 1. Whether the suit as presented before this court is one over which this Honourable court can exercise jurisdiction. 2. Whether this Honourable court has jurisdiction to impose the second claimant as an employee of the first defendant, a private limited liability company and in any case, is the action not an abuse of process of this Honourable Court. Counsel, on issue one contended that jurisdiction of court is statutory and is to be found in the statute creating the court. He cited Kasunmu Vs. Shitta –bey 2007 All FWLR Pt. 356 page 741 at 774 paragraph D-E . Counsel further referred the court to the popular case of Madukolu Vs. Nkedilim 1962 All FWLR page 581 at 589 – 590? and section 254 (1) a-k and urge the court to rule that the subject matter in the claim of the complainant in this suit is outside the statutory provision of the third alteration to the 1999 constitution of Nigeria. It is the contention of the first defendant counsel that the issue raised in the claim do not fall within the narrow confines of trade or industrial dispute, matters between employer and employee, Collective Agreement and matters of that nature. He invited the court to solely consider the statement of claim in determining the issue of jurisdiction in this matter. He called in aid the case of Garji Vs. Garji 2007 All FWLR Pt. 346 Pg. 494 at 505 – 506 P. F-C Akindele Vs. Abiodun 2010 All FWLR Pt. 518 Pg. 894 at 919 Counsel urge the court not to consider family dispute as an employment matter as no contract of employment was frontloaded, no collective agreement and no work place issue was involved . He cited the case of Petroleum Training Institute Vs. Matthew 2012 All FWLR Pt. 623 P. 1949 at 1967 paragraph C-E . On issue two, counsel submitted that the claimant cannot restrain the first defendant from exercising its power to hire staff of its choice. Counsel urge the court in that regard to consider paragraphs 3 and 25 (a) of the statement of claim as these paragraphs attempts to force the first defendant to employ the second claimant. This attempt, he says constitute the major relief of the claimant and therefore constitutes an abuse of the process of the court; He cited A.R.C Vs. JDP Construction Nigeria Ltd 2003 All FWLR Pt. 153 Page 251 at 270 paragraph B-D. and urge the court to dismiss the claimant case as doing otherwise will mean allowing the process of the court to be abused. Counsel concluded that the local content Act 2010 do not in any where vest jurisdiction over family squabbles on this court as no family is authorise by the said Act to impose itself on the first defendant being a limited liability private company. He submitted further that the first defendant, in compliance with section 28 (1) (2) of the local content Act 2010, in the Oil and Gas Industry, the first defendant’s board of directors has gone a long way to ensure that project promoter or operator employs reasonable number of personnel from areas it has significant operations. This it has effectively and willfully done by employing the services of the second defendant as the community liason officer (CLO) He therefore urged the court to sustain his objection by dismissing this suit. In his reply, the claimant /respondent counsel filed a written address dated and filed on the 23rd of July 2013. In his response counsel posited that the objection of the first defendant is misconceived, frivolous and lacks the requisite legal foundation or pedestal to stand. He proceeded to formulate a lone issue for determination by the court, which he stated as follows: “ Whether given the circumstance of this case, the claimants have shown a reasonable cause of action sufficient to evoke the adjudicatory powers of this Honourable Court.” On the issue of cause of action; counsel submitted that the employment slot of the claimant family is in issue and constitute the main trust or gravamen of their grievances. He urge the court to look at the claim of the complainant to determine its relief. He cited the cases of Garji Vs. Garji 2007 All FWLR Pt 345 page 494 at 505 -506. Paragraph F-C. Akindele Vs. Abiodun 2010 ALL FWLR Pt. 518 page 894 at 919 C-E . Counsel contended that this case borders on the employment entitlement of the claimant donated by the local content policy of the Federal Government of Nigeria and urged the court to juxtapose paragraphs 6, 7, 8, 9, 10 and 25 (a) (b) and (c ) of the statement of claim with section 27, 28 and 29 of the Nigerian Oil and Gas Industry Content Development Act (No 2) 2010; He therefore emphasized on section 28 (1) (2) of the said law. He further contended that the National Assembly through this Act, has specially noted and donated peculiar rights of employment to communities/ families that host companies of the defendants kind. He urge the court to recognize this employment rights as rights over which only the National Industrial Court (NIC) has exclusive jurisdiction by the provision of section 254 ( c) (1) (a) of 1999 Amended Constitution. Counsel submitted that this right of employment if breach is justiceable in this court. That section 29 of the Nigerian Oil and Gas Industry Content Development Act 2010 even criminalises such breach; Host communities, he contended further, has the right to demand for their employment slots as such rights are statutory. He urge the court not to frustrate the intention of the legislature by holding otherwise as this is the only court with jurisdiction over employment matters. He further urge the court to discountenance the argument of the first defendant counsel as he opposed the jurisdiction of the State High Court where this matter was initially instituted. Counsel finally submitted that the cases of Petroleum Training Institute Vs Mathew and the case of ARC Vs. JDP Contraction Nig Ltd cited by the first defendants counsel are not applicable to this matter and therefore urge the court to discountenance same as this suit is not an abuse of the process of the court. Counsel urge the court to dismiss the objection of the first defendant. I have carefully considered the submission of counsel and their respective contending positions. I have also looked and peruse the authorities cited in trying to buttress their submissions. In a situation where the jurisdiction of the court is challenged like in this suit, it behoves on me to critically look at the law setting up this court including other statutory provisions and marry that with the claims of the complainant before the court: I am fortified by this position in the cases of A.G. Lagos State Vs. Dosunmu 1989 3 NWLR Pt. 111 552 SC Daplanlong Vs. Dariye 2007 8 NWLR (Pt. 1036) 332; Chief Gariga and Others Vs. Bayelsa State Independent Electoral Commission 2012 LPELR 9294 (CA). Courts are creatures of statutes. It is the statute that creates the particular court that also confers on the courts its jurisdiction. Moreover, the court as in this case can only have jurisdiction if the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction. See Madukolu Vs. Nkedilim 1962 I All NLR 587 at PG. 595. Western Steel Works Vs. Iron Steel Workers Union 1987 I NWLR (Pt 49 ) Pg. 284. Section 254 ( C) (I) of the 1999 constitution as amended has this to say: “ Notwithstanding the provision of section 521, 257 and 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 exercise jurisdiction to the exclusion of any other court in civil causes and Matters -” (a) “relating to or connecting 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 therewith” (f) “relating to or connected with unfair labour practice ……” The black law dictionary eight editions by Bryan Garner defines the following words in this manner “incidental” means “subordinate to something of greater importance; having a minor role” “Arising” Means to originate; to stem from; to result from” These words are important because they are used in the enabling statute cited above. To me, connecting means something that has a linkage with or a relationship with another. While “related” means, connected. The statute used these key words: arising from, connected thereto, incidental to, related to employment; it may not necessarily means the employment itself. By section 7 (1) of the National Industrial Court Act NICA 2006 says: “the court shall have and exercise exclusive jurisdiction in civil causes and matters (a) Relating to ( i) Labour, including trade unions and industrial relations; and ( ii) environment and condition of work health, safety and welfare of labour and matters incidental thereto,……..” Employment in the ordinary meaning is being defined by the blacklaw dictionary Eighth edition as work for which one has been hired and is being paid by an employer” it must involve terms and conditions. i.e it must create employer, employee relationship. Let us now look at the claims in the complaint; Claim I : “An order of court compelling the first defendant, its servants, agents and /or privies to recognize, accord and or grant to the second claimant, all the privileges, rights, entitlement and benefits accruable to the second claimant as the community liaison officer being the legitimate nominee of the Ogisi family of warri, warri, South Local Government Area of Delta State of Nigeria”. The other two additional claims are injunctive reliefs By paragraphs 4 and 8 of the claimants statement of claims, he stated as follows; 4 “The claimant avers that the first defendant operates on the property of the claimants family, all that vast parcel of land known as MCDermott yard, in Warri, Warri South Local Government Area of Delta State of Nigeria” 8 “The claimant avers that the claimants’ family is entitled to benefits and privileges arising from the corporate social responsibility of the first defendant company and the local content policy of the Federal Government of Nigeria which benefits and privileges include the position of community liaison officer in the first defendants company.” Based on the various authorities cited above, it is crystal clear that the claim of the claimants borders principally on their right to be employed by the first defendant. Both counsels are ad idem to the effect that in considering issue of jurisdiction focus should be directed at the claims and the Supreme Court authorities cited above are also in accordance with that submission. It is therefore my candid view that the claims of the claimants falls squarely within the reliefs of the claimant. The parameter of employment and all other variables are related to, connected to arising from and incidental to the issue of employing a community liaison officer from their family. In their analysis, they think, they have the right to such employment. Whether they are right or wrong in their thinking is not for me to determine at this stage. Evidence must be led at the substantive stage of hearing. But to shut the claimant out at this stage will amount to shutting them out from ventilating their perceived grievance which will run contrary to the purpose of setting up the court system. I have painstakingly gone through the Nigerian Oil and Gas Industry content Development Act 2010 which is the main law under which the claimant is basing their claims and reliefs. The Acts principally seeks to Nigerianise the employment strata of the Oil and Gas sector through a deliberate legislative process. Whether this is inclusive of the claimant is a matter not to be trashed at this stage. Particular mention must be made of section 28 (2) of that law which says 28 (2) “The board shall ensure that the operator or project promoter maintains a reasonable number of personnel from areas it has significant operations” It is the claimants position that he is being denied the privilege given to him by the local content Act 2010 as enshrine in section 28 (2). In other words, he claims he has a right to employment, whether that right is justiceable or not is not a matter to be decided at this stage. Mind you, the first defendant counsel submitted earlier that by virtue of this same provision of section 28 (2) of the local content Act 2010, the first defendant in ensuring that a reasonable number of personnel from areas it has significant operations are engaged, has decided willfully to engage the services of the second Defendant as the community liaison officer. This is the very issue forming the cause of action in this suit and to my mind it borders on employment, related to employment, connected with employment arising out of employment and incidental to employment in line with section 254 © (1) of the 1999 constitution as amended. It is of interest to observe and note that at the High Court where this case was initially instituted, the first defendant counsel strenuously opposed the jurisdiction of the State High Court on ground of section 254 ( c) (1) of the 1999 constitution as amended, only to now turn around to argue that section 254 (c ) (1) is no longer applicable; it is my humble view that counsel cannot blow hot and cold at the same time, approbating and reprobating, saying “yes” and “No” at the two sides of the mouth with equal intensity. This is quite absurd and unacceptable. On the issue of abuse of court process raised by the first defendant counsel the Supreme Court in a plethora of authorities has defined what it really means. In Benkay Nig Ltd Vs. Calbury of Nig Ltd 2012 LPELR 78 20 SC, the Supreme Court defined it as; “when the process of the court has not been used bona fide and properly” Ngwuta JSC in Agwasin Vs. Ojichie 2004 10 NWLR (Pt. 882) 613 at 6 24 – 625 has this to say “The concept of abuse of court process is imprecise. it involves circumstances and situation of infinite variety and conditions but it has a common feature in improper use of the judicial process by a party in litigation to interfere with the due administration of justice” It is therefore my considered view that the claimants suit has not revealed any clement of bad faith, Improper use of the judicial process neither has it in any way unduly interfered with the administration of Justice. I so hold. In the totality, I see no merit in the first defendants application. It is accordingly dismissed. I make no order as to cost. The case shall therefore proceed to hearing. ---------------------------- - Hon. Justice P.O Lifu JP. Judge