IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
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Suit No: NICN/ABJ/109/2016 Petitioner: INTERNATIONAL COMMMUNITY SCHOOL LTD) ANOR And Respondent: NIGERIA SOCIAL INSURANCE TRUST FUND Date Delivered: 2017-03-29 Judge(s): HONOURABLE JUSTICE E. N. N.AGBAKOBA Judgment Delivered REPRESENTATION FIDELIS E. AKPOREHA for the Applicant with SOLOMON CHUKWUOCHA and O. O. EFFIJEH S. I. IBRAHIM for the Respondent with M.S. IBRAHIM, MEEMA UMAR MISS, I.B. OBEBO MRS and J. ABADU. J U D G E M E N T The Claimants/Applicants filed a MOTION ON NOTICE on 31st March, 2016 supported by a 17 paragraph affidavit deposed to by Mr. Sunday Ojibo, seeking the following reliefs: 1. A declaration that S. 33(1) of the Employees Compensation Act 2010 conflicts with S. 36(2) of the Constitution of the Federal Republic of Nigeria 1999 and therefore null and void. 2. A declaration that the demands of the Respondent on the Applicants to make payments to it compulsorily is unconstitutional, oppressive and a denial of their fundamental rights not to be compelled to make a choice in their rights and obligation, namely to take on an insurance policy against their will. 3. An Order of perpetual injunction, restraining the Respondent and/or its agents, servants, privies or employees howsoever described from harassing, threatening, intimidating and incessantly demanding payments from the Applicants in to her fund. When this matter was called up for hearing the court directed parties to address the court on the propriety of commencing this suit in the manner adopted by the applicant. The Respondent/Applicants filed NOTICE OF PRELIMINARY OBJECTION on 8th February, 2017 accompanied by an 11 paragraph affidavit deposed to by Charity Peter, praying the Court for the following orders: 1. An order striking out the name of the 2nd Applicant/Respondent on the ground that it is not a juristic person and as such is not a person known to law who can sue and complaint of a violation of its fundamental rights in the manner presented by the applicant to the main suit. 2. An Order striking out or dismissing the instant on the following grounds: i. The suit is not cognizable under the fundamental enforcement procedure. ii. Assuming the action can be commenced under the enforcement procedure the suit was filed in violation of the enforcement procedure rules. iii. The suit does not disclose a reasonable cause of action. iv. The suit is premature and a fortiori incompetent; the applicant having failed to first appeal the decision of the respondent to the Board as mandated by provisions of section 55(1) of the Employee’s Compensation Act, v. The suit is voidable by reason that the seal of the assumed legal practitioner who signed the process is absent from the process. The Respondents /Applicants in their WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION raised (6) six ISSUES 1. Whether the instant suit can be commenced under the enforcement procedure rules. 2. Assuming the answer to issue one is in the affirmative, is the instant action filed in compliance with the enforcement of fundamental rights? 3. Whether the 2nd Applicant who is not a registered company can sue in its name to enforce its fundamental rights. 4. Whether the suit as constituted discloses a cause of action. 5. Whether the instant suit is competent when the Applicants have not appealed the decision of the Respondent to demand for the sum as mandated by the provisions of section 55 of the Employee’s Compensation Act, 2010. 6. Whether the jurisdiction of this Court to entertain this suit is not fettered by the failure of the assumed legal practitioners to place his seal on the originating process. ON ISSUE 1 Whether the instant suit can be commenced under the enforcement procedure rules. Learned Counsel to the Respondents /Applicants S. I. Ibrahim Esq. submitted that it is trite that it is only in actions where the complaint borders on a breach or pending breach of any of the rights guaranteed under Sections 33-45 Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, 1999 or the African Charter on Human and Peoples’ Right that can qualify as an action to be filed under the enforcement of fundamental rights procedure. Order 1 of the Fundamental Right (Enforcement Procedure) Rules 2009. Furthermore, that once an action is considered in its totality and it does not refer to any of the rights contained in Chapter IV of the Constitution, that the said action is incompetent and liable to be struck out. WEST AFRICAN EXAMINATION COUNCIL V. AKINOLA OLADIPO AKINKUNMI (2008) LPELR-3468(SC). ON ISSUE 2 Assuming the answer to issue one is in the affirmative, is the instant action filed in compliance with the enforcement of fundamental rights? Respondents /Applicants Counsel submitted that the originating motion filed in this suit is absent of a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made as provided for in Order II Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009. ON ISSUE 3 Whether the 2nd Applicant who is not a registered company can sue in its name to enforce its fundamental rights. Counsel to the Respondents /Applicants submitted that ever since the ancient case of SALOMON V SALOMON 1897 A.C 22 HL, it has been settled that it is only upon incorporation that a company can claim to have legal personality and otherwise be referred to as an artificial person. NEW RESOURCES INT’L LTD. & ANOR. v. ORANUSI (2010) LPELR-4592(CA). He argued further that Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended is clear that only persons can complain of their rights being violated or about to be violated. ANSA & ORS. v. THE OWNER/MANAGING DIRECTOR RVL MOTORS (2008) LPELR-8570(CA). ON ISSUE 4 Whether the suit as constituted discloses a cause of action. Learned Respondents /Applicants’ Counsel submitted that a cause of action has been defined in a litany of authorities to mean the aggregate of facts which birth an action. VICTOR V F.U.T.A (2015)4 NWLR (PT. 1448) 1 AT 50 PARA A-E. He contended that the action is devoid of a reason to sue, urging the court to strike out the suit as has been the position of Court’s upon it being shown that a suit filed is absent of a cause of action. BURAIMOH OLORIODE & CR5 V. SIMEON OYEBI & ORS (1984) 5 SC I. ON ISSUE 5 Whether the instant suit is competent when the Applicants have not appealed the decision of the Respondent to demand for the sum as mandated by the provisions of section 55 of the Employee’s Compensation Act, 2010. Respondents /Applicants’ Counsel submitted that the instant suit is premature by reason that the Applicants have failed to comply with the provisions Sections 55(1) and (4) of the Employee’s Compensation Act, 2010 which mandates a person aggrieved with the decision of the Board as in the instant case to first appeal to the Board for a review of same before proceeding to Court. ORAKUL RESOURCES LMITED V N.C.C (2007) 16 NWLR (PT.1060) 270 AT 313 PARA D. It is Respondents /Applicants counsel’s submission that the law is trite that it is only when a condition precedent is complied with that a party is allowed to approach a Court to seek redress. ORAKUL RESOURCES LMITED V N.C.C. at page 302 PARA D-G; GOV., EKITI STATE V AKINYEME (2011) 17 NWLR (PT. 1276)373 AT 411 PARAG-H. ISSUE 6 Whether the jurisdiction of this Court to entertain this suit is not fettered by the failure of the assumed legal practitioners to place his seal on the originating process. Counsel to the Respondents /Applicants submitted that the mandatory nature of affixing a seal has been now been firmly stated severally by the Apex Court and that whilst it does not render a process void ab initio, it renders a process voidable upon failure to present the seal of the person who signed the process. YAKI V BAGUDU (2015) 18 NWLR (PT.1491) 288 AT 319-321. He urged the Court to hold that in the absence of the seal of the said Paul H. Omale the process is incompetent and void. The Applicant’s filed a WRITTEN ADDRESS IN OBEDIENCE TO COURT’S DIRECTIVE dated and filed on 1st March, 2017. Wherein they raised the ISSUE: Whether the National Industrial Court has the jurisdiction to entertain the Applicants’ suit in the form in which it has been brought. Learned Counsel to the Applicant F. E. Akporeha Esq., submitted that the jurisdiction to entertain civil causes and matters relating to the Applicants’ suit presently lies with the National Industrial Court by virtue of Section 254C(l) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. He submitted that the Fundamental Rights (Enforcement Procedure) Rules, 2009 provides that Human Rights suits shall be given priority in deserving cases and where there is any question as to the liberty of the Applicant or any person, the case shall be treated as an emergency. It is counsel’s argument that the Applicants’ are entitled to protection from unlawful and unconstitutional interference with their fundamental rights to freedom of choice in the determination of their civil rights and obligations. S. 36(2) of the Constitution; UNIVERSITY OF ILORIN VS RASHEED ADESINA (2010)9 NWLR (PT. 1199) 331 at 387-388 paras. H — B, per Agube, JCA. The Applicant also filed an APPLICANTS’ REPLY ON POINT OF LAW TO THE DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION DATED 8th FEBRUARY, 2017 (dated and filed on 3rd March, 2017). On whether the instant suit can be commenced under the enforcement procedure rules, the Respondent is of the view that no fundamental right of the Applicants has been or is being threatened but however Leaned Counsel to the Applicant pointed out that Chapter IV of the Constitution convers Sections 3 3-45. He stated that their complaint is the denial of their freedom from arbitrary laws provided for in S. 36(1) & (2). Under Issue 2, the Respondent submitted that the application has not been filed in accordance with the Fundamental Rights (Enforcement) Rules 2009. Order II Rule 2 of the Enforcement Rules Applicant’s Counsel contended that S. 36(2) means a law that affects or may affect the civil rights and obligations of any person will be invalidated unless it has two qualities: “(1) It provides for an opportunity for the victim to make representations to the administering authority and (2) The Law contains no provisions making the administering authority’s pronouncement on the rights and obligations of a citizen final and conclusive― ISSUE 3. Regarding the objection that the 2nd Applicant is not a juristic person. Applicant’s Counsel also argued that despite the fact that the Respondent went to CAC and discovered that the 2nd Applicant is a registered business name, still proceeded to file a Preliminary Objection that the 2nd Applicant is not a juristic person. FAWEHINMI VS. N.B.A. (NO. 2) (1989) 2 NWLR (PT. 105) 558. ISSUE 6. The NBA Stamp Citing S. 10(1) of the Rules of Professional Conduct for Legal Practitioners, counsel submitted that this section does not say the seal must be that of the lawyer signing it. The only requirement is that the seal is approved by NBA. Thus, that the seal affixed to their Motion on Notice is that of ISAAC OKPANACHI, the Managing Partner in their firm and that his seal is approved by NBA. The Respondents filed a WRITTEN SUBMISSION ON JURDICTION PURSUANT TO ORDER OF COURT filed on 6th March, 2017. Where they raised one ISSUE Whether the National Industrial Court has jurisdiction to entertain the instant suit as presented by the applicant. Respondent’s Counsel submitted that when the provision of a statute is clear, the foremost approach is to give same a literal interpretation. KRAUS THOMPSON ORGAISATION VS N.I.P.S.S. (2004) 17 NWLR (PT. 901) 46 AT 60 – 61 PARAS H – B.He submitted that special provisions will always take precedence over general provisions. GLADIS SAMUEL v. YAHAYA ETUBI (2011) LPELR-4200(CA). It is counsel’s submission that once action to considered in its totality and it does not refer to any of the rights contained in Chapter IV of the Constitution the said action is incompetent and liable to be struck out. WEST AFRICAN EXAMINATION COUNCIL V. AKINOLA OLADIPO AKINKUNMI (2008) LPELR-3468(SC). On the 7th March 2017 parties adopted their written addresses and adumbrated their respective positions accordingly. The applicant urged the court to consider the Preliminary objection as well as the written addresses. During adumbration the Learned Counsel to the Respondent referred to paragraphs 4/ 4.6 and 16-21 of the applicants address to argue that the applicants case was based mainly on the alleged denial of a right of choice and submitted that the issue did not come within the ambit of civil jurisdiction enforceable by fundamental rights procedure enforcement, arguing further that the FREP Rules are not applicable by extension, and that the question of which of two insurance companies to choose from is at best ancillary. Arguing further in reply on point of law that Section 254(d) relates to the application of Chapter 4 and if the applicant’s claim relates to Section 254(d) he cannot argue under sub (1). Urging the court to strike out the case. The applicants counsel on the other hand argued that the question of jurisdiction is not whether there was a choice between two insurance companies but that the threat of sanction he submitted made the issue a Fundamental Rights issue; if the claimants failed to choose they would suffer sanctions that he submitted what way they are in court. Learned Counsel to the Applicant in conclusion submitted that the Court has jurisdiction as along as the matter is connected to employment. Court’s Decision I have carefully summarized the submissions of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant can commence this suit in this court via the manner adopted; Fundamental Right’s Enforcement Procedure. The claimant sought the following reliefs from this court 1. A declaration that S. 33(1) of the Employees Compensation Act 2010 conflicts with S. 36(2) of the Constitution of the Federal Republic of Nigeria 1999 and therefore null and void. 2. A declaration that the demands of the Respondent on the Applicants to make payments to it compulsorily is unconstitutional, oppressive and a denial of their fundamental rights not to be compelled to make a choice in their rights and obligation, namely to take on an insurance policy against their will. 3. An Order of perpetual injunction, restraining the Respondent and/or its agents, servants, privies or employees howsoever described from harassing, threatening, intimidating and incessantly demanding payments from the Applicants in to her fund. And the Applicant brought his suit by way of motion on notice under the provisions of Section 36(2) and 46(1) 1999 CFRN (as amended), Order 11 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Article 10 African Charter on Human and Peoples Rights (Ratification and Enforcement Act) and the Inherent Jurisdiction of the Court as preserved by Section 6(6) of the 1999 Constitution as amended. Under the banner of “in the matter of an application for the Enforcement Of fundamental human rights― The Applicant has argued that his reliefs are founded; the allegation of breach of his fundamental rights due to a threat and that his relates to a labour matter. The question before the court then becomes: whether the Applicant’s suit can be competently determined by this court in view of the originating process adopted by the Applicant in commencing this action or in other words whether the Fundamental Rights Enforcement Procedure Rules 2009, or in fact the Applicant’s Motion on Notice can activate this courts originating jurisdiction. It is also necessary to note that the Applicants case is required to be considered both as regards the substance the reliefs and the form / procedure adopted The dictum of the Muhammed Bello CJN Supreme court in OGUDU Vs STATE [1994] 9 NWLR (Pt.366) 1 is most apposite at this juncture, I find. ‘It appears to me that upon careful examination of the fundamental rights in chapter IV of the Constitution, they may be classified into two categories for the purpose of their observance and their enforcement. Firstly they are the rights that must be observed whenever the occasion of their observation has arisen. Endorsing the submission of Mr. Agbakoba, they are intrinsic to the occasion and cannot be divorced from the occasion. They are generally procedural rights and are embodiment of fair trial in courts and tribunals of a democratic society, thus the right to fair trial and the right of an accused to defend himself under section 33 of the constitution are intrinsic to the trial and failure to observe such rights is a valid ground of appeal. The second category of fundamental rights comprises those rights that are enforceable by the High Court under Section 42 of the Constitution. Because the Constitution expressly confers original jurisdiction for their enforcement on the High Courts, this court (referring to the Supreme Court) has no jurisdiction as a court of first instance over them.’ Section 254C(1)(d) CFRN as amended provides that the National Industrial Court shall have jurisdiction……. d) relating to or connected with any dispute over the interpretation and application of the provisions of chapter IV of this constitution as it relates to any employment, labour, industrial relation, trade unionism, employer association or any other matter which the court has jurisdiction to hear and determine; As far as the claimants claim relates to a labour dispute and the alleged breach of fundamental right occurred is related or connected to an employment matter or is procedural and an intrinsic part of a substantive claim this court can hear it as an ingredient of a labour issue and as long as the suit is clothes the court with jurisdiction See Unreported ruling NIC/ ABJ/ 296/ 2012 GEOFERY Vs SETRACO NIGERIA LTS. & ORS delivered on 4th March 2013. Unreported ruling NIC/ABJ/32/2012 ANICHA Vs. NIGERIAN ARMY 7 ORS delivered on 2nd July 2012. It should be noted that section 46(1) of the 1999 Constitution, as amended, talks of “any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress―. By this provision, the application is to be to a High Court for purposes of section 46 of the Constitution and the Rules made there under. The NIC is not a High Court. An application may nevertheless be made to the NIC given the provision of section 254 C (1) (d) of the 1999 Constitution, as amended, but it cannot be an application under the Rules made pursuant to section 46 of the Constitution. Now section S254 C1 (l) gives the National Industrial Court jurisdiction in (ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour , trade unions or industrial relations’ Such appeals would be required to be commenced in line with the provisions of Order 3. The rules of this court in Order 3 Rule 1 provides; (1) Civil proceedings in the Court may be commenced byComplaint: Form 1 Origination Summons: Form 45, 46 Originating Motions: Application for Judicial Review: Notice of Appeal or Petition: Referral from Minister of Labour and Productivity: by any other means that may be prescribed by these rules Act of Law in force in Nigeria Bearing in mind the pronouncement of Oseji, J.C.A. that “it is trite law that Rules of Court are rules of procedure. They do not by themselves and of themselves confer jurisdiction but only regulate the exercise of a jurisdiction conferred in alinude NATIONAL INSURANCE COMMISSION & ORS v. FIDELITY BOND OF (NIG) LTD & ORS (2016) LPELR-41427(CA) (P. 33, Paras. A-B) “. See also CLEMENT Vs. IWUANYANWU (1989) 4 SC (PT 11) 89. The procedure adopted by the applicant is not among the modes provided by the rules of this court. This court has held in several case that the Fundamental enforcement Procedure Rules do not contemplate the National Industrial Court, Unreported NICN/EN/10/2011COMRADE (EVANG) OLOWO PREYE GRACE VS PENGASSAN & 3ORS, and that section 254C(1)(d) cannot be used as the basis of filing claims under the Fundamental Rights (Enforcement Procedure) Rules I this court See Unreported NICN/LA/333/2012 ALHAJI LATEEF AKINSOLA Vs. NURTW & ORS. delivered 20th March 2013. See also THOMAS INEBUI V. FIRST BANK OF NIGERIA [2014] 47 N.L.L.R PT.152 155-315 @P.221, PARAS A-C. In the circumstances the fundamental right issue can only be entertained when evaluating the procedure complained of, i.e. a substantive labour issue, which would be entertained but such a case must be initiated by writ of summons or more appropriately by a complaint where parties will exchange pleadings and adduce evidence on the propriety or otherwise of the claimant’s claims. I find that the Applicant’s case the procedure adopted squarely pronounces like a case for the enforcement of his fundamental human rights. This court has held in the Unreported SUIT NO: NICN/CA/03/2015 EDET AKPAN UMOREN & 13 ORS Vs. UNIVERSITY OF CALABAR & 3 ORS delivered on the 25th June 2015;-that the Fundamental Human Rights Provisions, unlike when a case is instituted by an Originating summons and the court find that process unsuitable the court can with reliance on Supreme Court direction such as OSANBADE V OYEWUMI [2007] 18 ALL FWLR (PT. 368) 1004 AT 1015 PARA. –E. and ADEYELU II V. AJAGUNGBADE III [2007] 14 NWLR (PT. 1053) PAGES 3-4, and order parties to file pleadings. There exists no such apex court precedent to enable the conversion of a Fundamental Rights Enforcement process to a process capable of activating this court’s jurisdiction. Learned Author of blessed memory B. Aturu in his book “The Law and Practice of National Industrial Court― First Edition 2013 Hebron Publishing Co. Ltd at p30.states that applicants seeking to activate the fundamental rights relating to jurisdiction of this court “must comply with Order 3 of the Rules and not by the Fundamental Rights (Enforcement Procedure) Rules 2009, otherwise the matter would be struck out― See NICN/EN/12/2012 FADIRO Vs. ADEYEMI (unreported). Also see S.S.A.U.T.H.R.I.A.I. v. OLOTU (NO. 2) (2016) 14 NWLR (PT. 1531) 1, per Adumein, JCA @ Pp. 17 -19, PARAS. C-A; where the Court of Appeal held that― the Enforcement of Fundamental Rights does not fall within the jurisdiction of the National Industrial Court and as such, this Court is incompetent to determine― the case. Having determined that this court lacks the jurisdiction to entertain application for the enforcement of fundamental human rights and by HALLMARK BANK PLC v. OBASANJO (2014) 4 NWLR (PT. 1397) 209 C.A. @ 212 Where it was held that “the court must put an end to its proceeding on discovering that it lacks jurisdiction―. See also HASSAN v. ALIYU (2010) 17 NWLR (PT. 1223) 547. For the above reason this matter cannot adjudicated in this court having been commenced by the Fundamental Rights Enforcement Procedure, this case is hereby struck out. This is the court’s judgment and it is hereby entered. ………………………………………….. Hon. Justice E. N. N. Agbakoba Judge.
