IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. N.AGBAKOBA
DATED 29TH MARCH, 2017 SUIT NO: NICN/ABJ/109/2016
In the matter of an application for the Enforcement Of fundamental human rights
BETWEEN
- INTERNATIONAL COMMMUNITY SCHOOL LTD) CLAIMANTS
- CHRISTIAN COMMUNITY SCHOOOL
AND
NIGERIA SOCIAL INSURANCE TRUST FUND ..…………… DEFENDANT
REPRESENTATION
FIDELIS E. AKPOREHA for the Applicant with SOLOMON CHUKWUOCHA and O. O. EFFIJEH
- I. IBRAHIMfor the Respondent withM.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:
- 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.
- 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.
- 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:
- An order striking out the name of the 2nd Applicant/Respondenton 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.
- An Order striking out or dismissingthe instant on the following grounds:
- The suit is not cognizable under the fundamental enforcement procedure.
- 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.
- 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,
- 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
- Whether the instant suit can be commenced under the enforcement procedure rules.
- Assuming the answer to issue one is in the affirmative, is the instant action filed in compliance with the enforcement of fundamental rights?
- Whether the 2nd Applicant who is not a registered company can sue in its name to enforce its fundamental rights.
- Whether the suit as constituted discloses a cause of action.
- 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.
- 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
