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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Thursday 12th March, 2015 SUIT NO: NICN/ABJ/155/2013 Between: Jacinta Nwosu Claimant AND First City Monument Bank Plc. Others Defendants REPRESENTATION Claimant present. Defendants absent. I. O Nweze Esq. with A. Abdulkadir Miss for the claimant; Bunyamba Lawan Esq. with Oluwatobi Ademola Miss for the 1st defendant; U. Ukeji Miss for the 2nd Defendant /Applicant. RULING By a Notice of Preliminary Objection dated the 5th of November 2014 but filed on 6th of November 2014, the 1st defendant counsel raised an objection to the jurisdiction of the court on the following grounds. (1) This court, by virtue of section 254 ( c) ( i) of the 1999 constitution (as amended) of the Federal Republic of Nigeria and section 7 of the National Industrial Court Act (NICA) lacks the jurisdiction to hear and determine this suit as constituted (2) The NIC lacks the jurisdiction to hear and determine action or any action with respect to the parties as constituted in this suit (3) The instant action is bad for misjoinder of parties. The above grounds are predicated on the fact that the National Industrial Court of Nigeria (NIC) being creation of the Constitution and the Act of the National Assembly can only hear and determine matters of labour between employer and employee. In the same vein, the 2nd defendant filed a motion dated and filed on the 10th of November 2014 praying the court to strike out this suit for want of jurisdiction or in the alternative striking out the 2nd defendants name for misjoinder of parties. In the interest of Justice and convenience the two application will be argued and taken together by the court; In His Notice of preliminary Objection (NPO) dated the 5/11/14 and filed on 6/11/14 the 1st defendant counsel Lawan Esq. supported his application with a 25 paragraphs affidavit and a written address of 13 pages wherein he formulated a lone issue for determination as follows: “Whether this Honourable court has jurisdiction to entertain this suit as presently constituted”. Counsel drew the courts attention to the celebrated case of Madukolu Vs. Nkendalim 1962 2 SC NLR 341; 1962 I All NLR 587 which is the locu classicus on the subject matter of jurisdiction and when a court is competent to adjudicate on a matter. Counsel posited further by reiterating the fundamental nature of the concept of jurisdiction to adjudication and call in aid the cases of Osakwe Vs. FCE Asaba 2010 10 NWLR Pt. 1201 I at 38; Ohakiri Vs. Asbaso 2010 19 NWLR Pt. 1226 172 at 244 para F-G Nwankwo Vs. Yaradua 2010 12 NWLR Pt. 1209 518 at 562. Counsel submitted further that the competence of the court to assume jurisdiction over a subject matter is determined by the claim as endorsed in the writ of summons which is the complaint in this suit. Counsel then referred the court to the various paragraphs of the claimants statement of claim with a view to outlining the reliefs therein and the various incidences of allegations of fraud, illegality, money laundering threat to life and defamation which are all outside the scope and powers as delineated by the constitution and the National Industrial Court Act (NICA). Counsel cited the cases of Onuorah Vs. KR PLC C Ltd 2005 6 NWLR Pt. 921 SC 393 at 404 Micro Soft Corp Vs. Franake Asso. Ltd 2012 3 NWLR Pt. 1287 CA 301 at 324. Counsel urged the court not to entertain the suit against the private individual which in not related to a trade or labour dispute as doing so will amount to exceeding the jurisdiction of this court; counsel further posited that the private element in this suit as constituted in relation to the 2nd defendants constitutes a feature which prevents this court from assuming jurisdiction. Counsel also referred the court to the principle in Madukolus case and the provisions of section 254 C (I) as the 2nd defendant is neither the employee of the claimant nor the employee of the 1st defendant; and as such he is not a necessary or desirable or proper party to this suit; Counsel further referred the court to section 54 (I) of National Industrial Court Act (NICA) 2006 on the definition of employer, employee. Counsel also referred the court to paragraphs 5-29 of the statement of facts and the claimant reply to the 2nd defendants defence and urged the court to decline jurisdiction on issues bordering on criminality and criminal allegation as the 2nd defendant is not an employee or employer in this suit; counsel urge the court to strike out this matter against the 2nd defendant as the 2nd defendant is not a proper/or necessary or desireable party in this suit. Moreover, counsel contended that subject matter in this claim involving the 2nd defendant do not fall within the powers of this court. Counsel call in aid of all these submissions the cases of : (1) Ogunde Vs. Gateway transit Ltd 2010 8 NWLR Pt. 1196 P. 207 – 229. (2) Oloriode Vs. Oyebi 1984 (I) SCNLR 390. (3) Okoye Vs. Nigerian construction and furniture Co Ltd 1991 6 NWLR (Pt. 199) 501. (4) Gombe Vs. PW Nig Ltd 1995 6 NWLR Pt. 402 at 418 – 419. In His own motion dated the 10th of November, 2014 and filed on the same date, the 2nd defendants counsel Anthony Agbonlahor Esq. filed an eight paragraphs affidavit in support and a written address of seven pages wherein a lone issue was formulated for determination as follows ; “Whether in the light of the pleadings before the court, the Honourable court has the requisite jurisdiction to entertain this suit” In His argument, learned counsel referred the court to the case of Madukolu Vs. Nkendilim 1962 I All NLR 587 at 595, Odofin Vs. Agu 1992 3 NWLR Pt. 229; Rossek Vs. ACB 1993 10 SCNJ 20 and section 54 (I) of NICA 2006 which define the words “employee” and “employer” and submitted that since the 2nd defendant did not fit into any of these definition, there was absolutely no basis for the claimant to join her in this court and as such her name should be struck out as she is not a necessary party. Jurisdiction, counsel posited further is determined by the claims in the suit. He referred the court to the case of Inda Vs. CPC 2012 12 WRN I; Ogaga Vs. Uniokoro 2012 23 WRN I . It is the contention of learned counsel that the admission of the claimant to the fact that the 2nd defendant was only a customer of the 1st defendant goes to show that there is no employment relationship between the claimant and the 2nd defendant. Counsel urged the court to limit the definition within the scope of section 254 (i) ( c) (a) and (b) of the 1999 constitution and section 7 of the National Industrial Court (NIC) Act 2006 as the operative word “shall” should be given a restrictive and mandatory meaning and interpretation. Counsel call in aid the case of (1) Gafar Vs. the Govt of Kwara State 2007 20 WRN 170 (2) Abdul Raheem Vs. Oloruntoba Oju 2007 7 WRN 28 at 66 lines 25 -35 (3) Catecna Int. Ltd Vs. Church gate Nig. Ltd 2011 18 WRN 40. Counsel submitted further that where proper parties are not before the court, the court lacks the jurisdiction to hear the suit; In that wise counsel urged the court to strike out the entire suit where it is not amenable. Where it is otherwise, Counsel urged the court to strike out the name of the 2nd defendant for reason of misjoinder. In his reply to the two applications, learned counsel to the claimant Mr. Obasi Nweze filed a written address of 11 pages and after the introduction and summary of facts, submitted a lone issue for determination as follows:- “Whether this honourable court has jurisdiction to entertain the instant suit with the parties as constituted” In His submission, learned claimants counsel urged the court to strike out paragraphs 9-14, 16-23 of 2nd defendants affidavit and paragraphs 4 & 5 of the supporting affidavit of the 1st defendant application for being offensive and containing extraneous matters contrary to section 115 of the 2011 evidence Act as amended. Counsel cited in aid of this contention the cases of Gen. & Aviation services Ltd Vs. Thahal 2004 10 NWLR Pt. 880 page 50 Bamaiyi Vs. State 2001 8 NWLR Pt. 715 P. 270. Counsel emphasized the importance of jurisdiction and call in aid the decision of the court of appeal in a full panel in Coca Cola Nig. Ltd Vs. Akinsanya 2013 18 NWLR Pt. 1386 P. 311. Counsel also urge the court to consider paragraphs 24, 28, 30,31,32 the statement of facts to see why the 2nd defendant who reported the claimant to the 1st defendant led, to her query and eventual dismissal. Counsel referred the court to the provision of section 254 ( c) (I) of the Constitution of the Federal Republic of Nigeria (FRN) 1999 as amended and section 7 of the National Industrial Court Act (NICA) 2006 and submitted that this court has jurisdiction on the claims as submitted for determination by the claimant. Counsel emphasized paragraphs 30-32 of the statement of facts of the claimant, exhibits “B” and C, witness statement on oath and all processes before the court where the 2nd defendants name are also reflected in the suit as the main person behind the incident that led to the claims before this court. The question as to what the name of the 2nd defendant is doing in the query and the letter of dismissal can only be answered during the trial of this suit counsel opined. Joining the 2nd defendant in this suit counsel submitted further was necessary for the proper determination of this case. Mr. Nweze therefore urged the court to adopt a literal rule approach to the construction of section 254 (I) ( c) of the 1999 constitution as amended and section 7 of the NICA 2006 and not to introduce persons or personalities into the subject matter. Counsel invited the court to paragraph 8 of the 2nd defendants statement of defence which captures the jurisdiction of this court on the subject of payment or non payment of salaries and allowances which forms part of the claim in this suit; Learned counsel also submitted that the content of the query and termination letter which are defamatory also constitutes workplace issue which the court has jurisdiction. On the issue of dismissal of this action for misjoinder, Learned counsel submitted that the proper order to make if the court so find even though he was not conceding is not a dismissal order but a striking out of the misjoined party. Counsel call in aid of this submission the cases of: (1) Green Vs. Green 2001 45 WRN 90 (2) Ibrahim Vs. Ojonye 2012 11 NWLR 1286. (3) Enterprise Bank Nig. Ltd Vs. Asoro 2014 3 NWLR 1394. Counsel took a swipe at the attitude of the 1st defendant counsel who was crying more than the bereaved in fighting the battle of the 2nd defendant uninvited instead of concentrating on its own defence. Mr. Nweze finally contended that the variegated involvement of the defendants in the false allegations, defamation and dismissal of the claimant makes the 2nd defendants a proper and necessary party within the jurisdiction conferred on this court by the Constitution and the National Industrial Court (NICA) 2006. Moreover, the objector to jurisdiction in this application has not objected to any claim of the claimant as a misjoinder of cause of action. Counsel finally urge the court to discountenance the two applications of the defendants and allow the claimant to ventilate her grievances against them. I have carefully considered the submissions of counsel and their respective contending position in the two applications before me. I have also looked and perused the authorities cited in trying to buttress their submissions. In a situation where the jurisdiction of the court is challenged like in this suit in the two application of the defendants. It behoves on the court to critically look at the law setting up the 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 AG. Lagos State Vs. Dosunmu 1989 3 NWLR Pt. 111 552. Dapialong Vs. Dariye 2007 8 NWLR Pt. 1036) 332 Chief Gariga & ors Vs. Bayelsa State Independent Electoral Commission 2012 LPELR 9294. Courts are creations of statutes. It is the statute that creates the particular court that also confers on the courts its jurisdiction. Moreover, the courts 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 courts from exercising jurisdiction. See the cases of Madukolu Vs. Nkendilum 1962 I All NLR 587 at 595 Western Steel Works Vs. Iron Steel workers Union 1987 I NWLR Pt. 49 at 284. In determining jurisdiction, it is the claim endorsed on the writ of summons i.e the complaint as stated in the statement of facts i.e the statement of claim that will be considered. The inquiry or considerations does not extend to the defendants pleadings even through same had been filed in compliance with the rules of court: See the case of Society Bic SA Vs. Chargin Ind Ltd 2014 4 NWLR Pt. 1398 at 497. What then is the claim before the court? The first three reliefs of the claimant reads as follows; (1) A declaration that the purported dismissal of the plaintiff by the 1st defendant is wrongful and therefore illegal and of no effect. (2) An order that the plaintiff is entitled to and shall be paid her outstanding salaries, allowances and other benefits and entitlements from April 2011 when the 1st defendant stopped paying the plaintiff until the date of proper disengagement of the plaintiff by the 1st defendant. (3) An unreserved apology by the defendants to the plaintiff to be caused to be published by newspapers circulating nationwide. The 4th relief is on general and aggravated damages against the defendants for defamation; the 5th relief is damages for false imprisonment against the 1st defendant, the 6th claim is for legal fees, the 7th is for the cost of this suit, the 8th relief borders on post judgment interest while the 9th is on injunction . By the provisions of section 254 (C) (I) of the 1999 constitution as amended, this court has exclusive jurisdiction on the following subject matter amongst others; (a) Relating to, or connecting with any labour, employment, trade unions, industrial relatings 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 edition 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. My take on this is that the word 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 mean the employment itself. By section 7 (I) of the NICA 2006, the court have exclusive jurisdiction in civil causes and matters (a) relating to (i) labour, including trade union 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 defined by the black law dictionary 8th edition as work for which one has been hired and is being paid by an employer. It must involve terms and condition i.e it must create employer, employee relationship. A thorough perusal of the entire gamut of the third alteration Act 2010 from which section 254 (I) (C ) of the constitution is a derivative clearly accommodates the entire reliefs of the claimants in this suit; this is so because (1) There is an established contract of employment between the claimant and the first defendants (2) The contracts has terms and condition governing the engagement. (3) The claimant is alleging the breach of those terms. (4) Other ancillary reliefs of the claimants bordering on damages, interest, and injunction are normally derived from the main claim of breach of contract of employment. The court should not at these stage decide this issues in limine but provide a level playing ground for litigants to ventilate their grievances by calling evidence in a full scale trial; see Attorney General of River State Vs. AG. Bayelsa State; 2013 Pt. 1340 NWLR. I hold that the claim of the claimant are properly located within the subject matter jurisdiction of this court. The other issue of joinder or misjoinder of party invariably also goes to the jurisdiction of the court. The question in this suit is, is the 2nd defendant a party to the contract between the claimant and the 1st defendant? i.e does the terms and condition of the labour contract regulating their relationship includes or contemplates the 1st defendant? Was the 2nd defendant at all material time acting in any way as an agent of the claimants employer? Or rather, is there any way one can say that the 1st defendant was a principal of the 2nd defendant? Can one say vividly in law and in fact that the 2nd defendant is privy to the contract between the claimant and the 1st defendant of which the claimant is at present seeking to enforce in this suit? Is the 2nd defendant a necessary party? A necessary party is a party whose presence is essential for the effectual and complete determination of the claim before the court. It is a party in the absence of whom the claim cannot be effectually and completely determined. It is trite law that a necessary party is a person or entity whose interest is at stake in the outcome of a law suit, whose presence as a party in the suit prevent a judgment on all issues. Can one really say that the presence of the 2nd defendant who is not privy to the employment contract or agent of the 1st defendant is indispensable to the interpretation and application of contract of employment terms? I do not think so. There are 3 ways generally that someone can be a necessary party (1) In the absence of the party, complete relief cannot be provided to existing parties (2) The absent party claims an interest relating to the subject of the action and a disposition of the action without that person may as a practical matter impair his ability to protect that interest. (3) The absence of the party leave the other person already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligation. (4) See the case of Ige Vs. Farinde 1994 NWLR Pt. 354 42 1994 7-8 SCNJ 284. The position of the law is that all parties or persons who may be affected by the outcome of the action are necessary parties but the question as asked in Adepiti Vs. Govt of Ondo State 2012 LPELR is:- “Is that person’s presence necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the case or matter?” I think the answer is in the negative because the claim in the suit arising out of the contract of employment is targeting at the person who terminated the claimants employment, the false imprisonment, the defamation as contained in the letter of termination and other sundry claims arising or connecting or incidental or relating to the main claim. The claims in this suit therefore can be heard and determine effectively and effectually without the presence or in the absence of the 2nd defendant. Consequently the name of the 2nd defendant is struck out of this suit; I make no order as to cost. Hon. Justice P.O Lifu (JP.) Judge