Download PDF
BEFORE THEIR LORDSHIPS Hon. Justice B.B. Kanyip Presiding Judge Hon. Justice V.N. Okobi Judge Hon. Justice O.A Obaseki-Osaghae Judge DATE: 15th June, 2010 SUIT NO. NIC/LA/32/2009 BETWEEN Stephen Adebowale Eyiolawi…………………..……………………Appellant AND 1. Maersk Line Agency Nigeria Limited 2. NLD Shipping Agency Limited (formerly P& O Nedlloyd Limited)………………….………Respondent REPRESENTATION K.O Adebayo and with hi Miss V.E Oni for claimant H.C Ubah for the defendants RULING This is a notice of preliminary objection by the defendants dated 12th January 2010 and filed on the 14th January, 2010 and is brought pursuant to section 7(i) of the National Industrial Court Act 2006. The ground of the objection is that this court has no jurisdiction to entertain matters pertaining to ordinary contract of employment between an employer and an employee. The claimant had filed a complaint in this court against the defendants seeking the following rd fiefs: — I) A declaration that the contract of employment between the claimant and the defendant is still subsisting 2) A declaration that the claimant is entitled to be paid his full remuneration, allowances and entitlement until his employment is properly determined. 3a) An order mandating the defendants to pay the claimants his remuneration (September 2005 — October 2009) at N2,150,788.60 as special damages, the particulars of’ which were given. AND 3b) An order mandating the defendants to pay the claimant, as special damages, his remuneration for November 2009 until the employment is determined, the particulars of which were given. OR 3c) As an alternative to 3(a) and 3(b) above, where the court finds that the employment has been properly determined from the date of suspension, an order mandating the defendants to pay the claimants the sum of N1,821,902.33 as special damages based on the terms of the supplemental agreement. The particulars were of special damages were also given. OR 3d) As an alternative to 3(a) and 3(b) or 3(c) above, where the court finds that the employment was determined from the date of acquisition when the other members of staff were paid off, an order mandating the defendants to pay the claimant the sum of N1,672,821.30 as special damages, the particulars of which were given. 4. An order mandating the defendants to pay the claimant the sum of N2,000,000 (Two Million Naira) as general damages for the mental torture, agony, loss of self esteem, detention by the police, the humiliation of being paraded as a criminal during the trial, deteriorating health and the inability to cater for his family members as a result of the termination of employment by the defendants and the refusal to pay him any entitlement as pleaded in the statement of facts. 5. An order of court mandating the defendant to issue a certificate of service in respect of the claimant in compliance with the P & O Nedloyd Handbook. Accompany the statement of facts is the list of documents to be relied on and the list of witness to be called at the trial. The two defendants entered conditional appearance and by this preliminary objection are praying for an order striking out this suit. Accompanying the preliminary objection is the defendants’ written address. In reaction, the claimant filed his reply written address dated 2nd March 2010 but filed on the 10th March 2010. The defendants did not file any reply on points of law. Both parties formally adopted their addresses. In their written address, the defendants’ framed one issue for the determination of the court, which is whether having regard to the subject matter of the claimants claim and the reliefs endorsed on the statement of facts, this court can exercise jurisdiction to hear and determine this suit. The defendants’ counsel submitted that in order to ascertain whether or not a court has jurisdiction to try a claim, the court only needs to look at the claimant’s claim because that is what determines the jurisdiction of the court to entertain the suit, citing Ministry of Works v. Tomas (Nig,) Ltd [2002] 2 NWLR (Pt. 752) 740 at 750. Learned counsel argued that the claims and reliefs the claimant is seeking have to do with the contract of employment allegedly entered into with the defendants, referring to the complaint and statement of facts. He argued further that the jurisdiction of this court is as provided in section 7 of the National Industrial Court Act 2000 which he inappropriately reproduced in the written address. Counsel submitted that the section 7 does not in any way confer power of this court to hear and/or entertain claims arising from a mere contractual relationship between an employer and an employee and that the jurisdiction of the NIC is so clear as there are plethora of cases decided by this court to accentuate the scope and jurisdiction of the court, lie cited then Prince Kola Oyedokun v. National Union of Furniture Fixtures and Wood Workers DJ NIC [1978-2006] 365 at 366, Maritime Workers Union of Nigeria & ors v. NLC & ors DJ NIC [1978—2006] 422 at 424, Senior Staff Association of Statutorv Corporations and Government owned Companies NPA Branch & anor v. Senior Staff Association of Statutory Corporations and Government owned Companies & 2 ors DJ NIC [1978 2006] 412 at 414. Learned counsel also argued that the National Industrial Court Act 2006 does not contemplate a worker suing his employer on issues arising from a mere contractual relationship between the employer and employee before this court and that this action should be commenced in the State High Court, referring to section 272 of the 1999 constitution of the federal Republic of Nigeria. He argued that courts are not allowed to fish for jurisdiction even if they think it is in the interest of justice to do so and referred to the case of Senior Staff Association of Statutory Corporation and Government owned companies, NPA Branch supra. He finally submitted that the subject matter of the claimant’s claim as presently constituted falls outside the jurisdictional limits of this court and, therefore, the court should decline jurisdiction. He finally urged the court to uphold the defendants’ objection and strike out this suit. The claimant’s counsel adopted the sole issue framed by the dependants for the determination of the court. lie posed a rhetorical question: whether the National Industrial Court created by the Trade Disputes Act LFN 1990 is the same as the National Industrial Court established under the NIC Act 2006 particularly with reference to the issue of jurisdiction. Learned counsel stated that this question is necessitated by the defendants’ counsel citing of’ eases decided before the commencement of the NIC Act 2006 as the basis far their preliminary objection. He submitted that the scope of original jurisdiction of the National Industrial Court before 2006 was defined by section 20(b) of the Trade Disputes Act which was upheld in the case of’ Senior Staff Association of Statutory Corporations and Government owned Companies, NPA Branch, supra. That section 53 of the NIC Act 2006 provides for the repeal of Part II of the trade Disputes Act and also that “. . . the other provisions of the Trade Disputes Act shall be construed with such modifications as may be necessary to bring it into conformity with the provisions of this Act”, and that “if any provision of the Trade Disputes Act is inconsistent with the provisions of this Act, the provisions of that Act shall prevail’’. Learned counsel submitted that in view of the foregoing provisions the NIC Act 2006 introduced radical and significant changes to the issue of jurisdiction of the court in section 7, which now covers the subject matter of “labour and matter incidental’’ to it which was not contained in the now repealed section 20 of the Trade Disputes Act. He argued that the cases cited by the defendants’ counsel were decided before and in 2002, and could not have been based on the NIC Act 2006 when it had not come into existence. That the claimant’s counsel argued that the claimant’s claims relate to master and servant relationship between the claimant and the defendants and that these are matters incidental to labour. He submitted that section 7 provides inter alia that the court shall have jurisdiction in civil causes relating to “labour, including trade unions and industrial relations.’ He further argued that the NIC Act 2006 did not define labour hence subjecting the term to its general usage and meaning. He referred to Black’s Law Dictionary’ (7th edition) which defines labour as “work of any type, including mental exertion, the term usually refers to work for wages as opposed to profits”. Counsel submitted that matters relating to contracts of employment are matters of labour, and issues of’ contract of employment and wrongful termination can be said to he matters incidental to labour and, therefore, within the purview of the jurisdiction of this court. He cited this court’s decision in the case of Godwin Tosanwumi v. Gulf Agency & Shipping Nig. Ltd (unreported) Suit No. NIC/l8/2006 delivered on l4th June 2007 and referred to the opinions of counsel invited as amicus curia. Counsel argued further that if labour means work for wages and the court is vested with jurisdiction in matters releting to labour then the claimant’s case which is for wages and terminal benefits for work done can be heard by this court. He finally urged the court to dismiss the notice of preliminary objection for lack of merit. As indicated above, the defendants did not reply on points of law. In merits or otherwise of the submission of both parties, we must state that the cases cited by the defendants’ counsel were decided before the enactment of the National Industrial Court Act 2006 and so the ratio decidedness in those cases were not based on section 7 of the NIC Act 2006 but on the now repealed section 20 of the Trade Disputes Act l990. The sole issue for determination is whether this court has jurisdiction to hear am determine the claims of the claimant. A court is competent and has jurisdiction in a cast if inter alia the subject matter of the case is within its jurisdiction and there is no in the case which prevents the court from exercising its jurisdiction. See Madukolu v. Nkemdilm [1962] 2 SCNLR 341. The question then is whether the claimant’s claim in for declaration that his contract of employment is still subsisting and petulant remuneration and allowances comes within the purview of section 7(1)(a) of the NIC Act 2006. In other words, is the claimant’s claim in relation to labour or matters incidental to labour? This court has held in several cases that issues of dismissal/termination are matters of labor or at worst are matters incidental to labour as provided in section 7(1 )(a) of the NIC Act 2006 and that this position is reinforced by the fact that the jurisdiction of this court under section 7 of the NIC Act is subject based in Nigeria Union of Pharmacists, Medical Technologists and Profession Allied to medicine v. Obafemi Awolo Teaching Hospital Complex Management Board, In re: Medical and Dental Counsel of Nigeria and Nigeria Medical Association (unreported) Suit No. NIC/8/2006 delivered on May 22, 2007 this court held that under the NIC Act 2006, jurisdiction is subject based. This court went further to hold in Godwin Tosanwumi v. Gulf Agency & Shipping Nigeria Ltd, supra, that any matter that qualifies as ‘labour’ or incidental to it will quaiii’ as such and so would confer jurisdiction on this court. This position was reiterated in Mrs. G.I Oyeleke & ors v. NICON Insurance Plc & anor (unreported) Suit No. NIC/14/2006 delivered on November 14, 2007. The Black’s Law Dictionary defines “labour” as the term usually used in referring to work for wages as opposed to profit and “industrial relation” as “all dealings and relationships between an employer and its employees including collective bargaining about issues such as safety and benefits”. The claimant is complaining about his contract of employment, non payment of his remuneration and allowances. All of these deals with conditions and terms of employment and so comes within the purview of labour tinder section 7 of the NIC Act 2006. We have not been shown any reason why we should depart from this reasoning and the authorities cited above. We, therefore, hold that the claims of the claimant come within the jurisdiction of this court. The preliminary objection of the defendants fails and is hereby dismissed. The matter shall proceed to hearing. We make no order is to costs. Ruling is entered accordingly. _____________________________ Hon. Justice B.B. Kanyip Presiding Judge ______________________ _____________________ Ion. Justice V.N. Okobi Hon. Justice O.A. Obaseki-Osaghae Judge Judge