UNITED NIGERIAN ILES PLC v. MOHAMMED ABU & ORS (2014)

UNITED NIGERIAN ILES PLC v. MOHAMMED ABU & ORS

(2014)LCN/7395(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/K/276/2009

RATIO

COURT: JURISDICTION; WHAT HAS TO EXAMINE IN THE DETERMINATION OF WHETHER THE COURT HAS JURISDICTION IN A PARTICULAR CASE

It is trite law that it is the claim of the plaintiff as in the writ and statement of claim that has to be examined in the determination of whether the Court has jurisdiction in a particular case. See ADEYEMI V. OPEYORI (1976) 10 NSCC 455. NKUMA VS. ODILI (2006) 6 10 NWLR (pt. 977) 587; ONUORAH v. KRPC (2005) 6 NWLR (Pt. 921) 393; ADELUSOLA v. AKINDE (2004) 12 NWLR (Pt. 887) 295. per. ISAIAH O. AKEJU, J.C.A.

COURT: JURISDICTION; THE JURISDICTION OF THE NATIONAL INDUSTRIAL COURT UNDER THE CONSTITUTION

The jurisdiction of the National Industrial court is now prescribed under section 254c (1)(j) of the Constitution provided in section 6 of the Third Alteration Act. The National Industrial Court shall have and exercise jurisdiction to the exclusion of other Courts in Civil causes and matters relating inter alia to the determination of any question as to the interpretation of and application of any Collective Agreement, and dispute relating to or connected with disputes arising from payment or non payment of gratuities, allowances, benefits, of any employee, or worker. It is beyond any contention that it is the National Industrial Court that has exclusive jurisdiction in matters relating to, or connected with the interpretation of Collective Agreements. See OLORUNTOBA – OJU vs. DOPAMU (2008) NSCQ (34) (pt. 1) 1278, (2008) 7 NWLR (pt. 1085) 1. per. ISAIAH O. AKEJU, J.C.A.

COURT: JURISDICTION; WHEN IS A COURT COMPETENT

It has become well established in law that a court is competent to adjudicate when, and only when the following are fulfilled;

(a) It is properly constituted as regards numbers and qualifications of members of the court and no member is disqualified for one reason or the other;

(b) The subject matter is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction,

(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; OLORIODE v. OYEBI (1984) 1 SCNLR 390; EZOMO VS. OYAKHIRE (1985) 1 NWLR (Pt. 2) 195. per. ISAIAH O. AKEJU, J.C.A.

PRACTICE AND PROCEDURE: JOINDER OF PARTY; WHETHER NO CAUSE OR MATTER SHALL BE DEFEATED BY REASON OF MISJOINDER OR NON-JOINDER OF PARTIES

The law is now settled that no cause or matter shall be defeated by reason of misjoinder or non- joinder of parties, and the Court may in any given case deal with the matter in so far as regards the rights and interests of the parties before the Court. See OSUNRINDE & 7 ORS VS. ALAMOGUN & 5 ORS (1992) 6 NWLR (pt. 246) 156; BELLO VS. INEC (2010) 8 NWLR (Pt. 1196) 342. per. ISAIAH O. AKEJU, J.C.A.

COURT: JURISDICTION; THE EFFECT OF THE FAILURE OF THE ABSENCE OF JURISDICTION IN AN ADJUDICATION

The law is well settled that where a Court has no jurisdiction to hear and determine a case, any proceedings and adjudication by that Court becomes fufile and the decision thereon will amount to a nullity no matter how well the proceedings might have otherwise been conducted. See ALAO VS. A.C.B. LTD (2000) 6 SC (Pt. 1) 27; GALADIMA VS. TAMBAI (2000) 6 SC (Pt. 1) 196; SKEN CONSULT v. UKEY (1981) 1 SCB. per. ISAIAH O. AKEJU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

O.A. ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA A. WAMBAI Justice of The Court of Appeal of Nigeria

Between

UNITED NIGERIAN ILES PLC – Appellant(s)

AND

1. MOHAMMED ABU

2. A. GANKON

3. Z. ADAMU

4. E. OBASEMIHE

5. ABDULRAHMAN HASSAN

6. ZACHARIAH BAWA

7. STEPHEN OLOCHE

8. ABDUL R. ALABI

9. ZIBIAH P. GIN

10. MUSILIU BELLO

11. OBADIA A. KAKA

12. DANLADI EBUTE

13. MICHAEL ADAMU

14. JOSEPH F. ADACHA

15. FIDELIS AJOMA

16. SANI MALIKI

17. YUSUF USMAN

18. SAMUEL ELELA

19. MUSA SADIQ

20. REGINA BULUS

21. JOSEPH EIGEGE

22. WILLIAM ALEGE

23. GRACE OGWULU

24. IBRAHIM SAFAWANU

25. J.T. AJAYI

26. HARRISON AGABA

27. SANUSI IBRAHIM

28. PATRICK O. AREGBEYEN

29. EMOKHARE U. IGNATIUS – Respondent(s)

ISAIAH O. AKEJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Kaduna State, sitting at Kaduna contained in the Ruling delivered on 15/7/2009 by which the Court dismissed the application of the Appellant challenging the jurisdiction of the High Court of Kaduna State to hear and determine the action of the Respondents who had filed suit No. KDH/KAD/199/2009 for the claim of N30,406,661.14 (Thirty Million, Four Hundred and Six Thousand, Six Hundred and Sixty One Naira, Fourteen Kobo) against the Appellant as unpaid entitlement. The amount due to each of the Respondents was adumbrated in the statement of claim filed with the writ of summons.

By the motion on notice and supporting affidavit filed by the appellant on 29/4/2009, and copied on pages 239 – 242 of the record of appeal, the appellant sought the order striking out the suit for incompetence and for want of jurisdiction. The appellant had contended that the claims of the respondents were based on separate contracts of employment as they were employed by the appellant at different dates and on different terms, and that the claims are based on the construction of a Collective Agreement. The Respondents filed a counter affidavit to contend that they claimed for payment of outstanding entitlement withheld by the Appellant, that though employed at different times or separately they had a common grievance and that the Respondents’ union is not involved in the action.

In the Ruling of the High court of Kaduna State (hereinafter called the trial court), after hearing the parties, the learned trial judge held that the application lacked merit and dismissed it. The learned trial judge thereafter proceeded with hearing of the case and gave judgment in favour of the Respondents.

The Appellant was dissatisfied with the decision of the trial court and commenced the instant appeal through the Notice of Appeal filed on 22/7/2009, and in this Court the Appellant’s Brief was amended by the Amended Appellant’s Brief prepared by Otunba Isola Adebanjo of Counsel and filed on 19/4/2013 but deemed properly filed on 20/1/2014 while the Respondents’ Amended Brief of Argument prepared by S.B. Muhammed Esq., of Counsel was filed on 19/2/2014. The Appellants Reply Brief was filed on 21/4/2014.

At the hearing of the appeal, Otunba Isola Adebanjo for the Appellant withdrew all the applications earlier filed by him and they were struck out, he there after adopted the Amended Appellants’ Brief and Reply Brief while S.B. Mohammed Esq., for the Respondents adopted the Amended Respondents’ Brief.

The Appellant formulated two issues for the determination of the appeal as follows:

1. Whether the learned trial judge was right to have assumed jurisdiction to entertain the suit of the Respondents.

2. Whether there was a misjoinder of parties and causes.

The respondents adopted these two issues and I have also adopted them for the determination of the appeal.

The contention of the Appellant on the first issue is that the trial Court lacked jurisdiction to entertain a matter on the interpretation and enforcement of Collective Agreements or on labour matters generally which are vested exclusively in the National Industrial Court and the action is therefore incompetent.

According to appellant’s Counsel the state of the law as it is now is that matters calling for interpretation of Collective Agreements can be entertained by only the National Industrial Court, and they are outside the jurisdiction of the High Court of a State; EKONG V. OSIDE (2004) ALL FWLR (Pt. 216) 562; OLORUNTOBA – OJU VS. ABDULRAHEEM (2009) 13 NWLR (Pt. 1157) 81.

It was also submitted that the respondents did not provide any evidence before the trial Court that the Collective Agreement they sought to enforce had been incorporated into the contract of employment of each or any of them, and such Collective Agreement is therefore unenforceable in law; OSAGIE VS. NNP PLC (2005) 3 NWLR (Pt. 913) 513.

It was argued that the jurisdiction of the National Industrial Court has been set out under section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the National Industrial Court Act, 2006.

On this issue the Respondents have contended that there is no dispute calling for interpretation of any Collective Agreement and invocation of section 7(1)(c)(1) of the National Industrial Court Act, 2006 as the claim of the Respondents is for debt owed to them as employees by their employer which had been paid to some of the Respondents. It was contended further that since the action is not between employees and employer there was no trade dispute and the decisions of court relied upon by the appellant are inapplicable.

On the argument that the collective Agreement was not shown to have been incorporated into the contracts of the Respondents and therefore unenforceable, the Respondent’s Counsel submitted that this argument does not arise from the trial Court’s decision and the appellant is now estopped under section 169 of the Evidence Act 2011 having paid to some of the Respondents under the Collective Agreement.

The Appellant’s Counsel raised no new argument on this issue in his Appellants’ Reply Brief.

The Appellant has challenged the jurisdiction of the trial Court to hear and determine the claim of the Respondents. Jurisdiction is the power of the Court to competently perform its judicial functions in respect of a given matter. The issue of jurisdiction is important and fundamental in any adjudication as it is the blood that makes the Court to survive and function. See UTIH V. ONOYIVWE (1991) 1 SCNJ 25. Where a Court lacks jurisdiction in any matter, no valid decision can be made. See ATT-GEN. LAGOS STATE VS. DOSUMU (1989) 3 NWLR (Pt. 111) 552.

In the instant case, the respondents claimed N30,406,661.14 against the Appellant as unpaid entitlement. In their statement of claim they averred that they were employees of the Appellant and were members of ile Garment and Tailoring Service Staff Association of Nigeria but they had been declared redundant by the Appellant. In paragraph 10 of the said statement of claim they averred that;

“10. The plaintiffs avers (sic) that by a Collective Agreement dated 12th December, 2007 which retrospectively took effect on the 1st November, 2007 the Defendant increased their monthly transport allowance and food subsidy of the plaintiffs by N400.00 and N200.00.

11. The plaintiff’s states (sic) that upon the declaration of Redundancy by the Defendant they were disengaged from the services of the defendant on the 7th day of November, 2007.

12. The plaintiffs avers (sic) that upon disengagement from the service of the Defendant, they were entitled to the payment of Gratuity, Redundancy Allowance and Arrears of the 2007 Collective Agreement entered into between the Defendant and the plaintiffs Senior Staff Association”.

In paragraphs 13, 14 and 15 of the statement of claim, the Respondents emphasized the formular for calculation of their gratuity which should be on basis of 22days working month, and not 30 days; they defined the word “pay” for the purpose of calculating their Redundancy to mean Basic Salary + Transport allowance + Housing allowance + food subsidy to be calculated on the formular of monthly pay multiplied by years served.

There is no doubt from these main averments of the Respondents that although they had been declared redundant by the Appellant, their former employer and they claim N30,406,661.14 as debt owed to them by the Appellant, the substratum of their claim is the Collective Agreement dated 12th December, 2007 but with retrospective effect from 1st November, 2007. This is essentially the document to be examined by the trial Court to ascertain whether the Respondents, who had been declared redundant from 7th November, 2007 could take benefit under that Collective Agreement. Another issue that has been vehemently raised by the Respondents is the calculation of their actual entitlement or the formular for calculation, whether it is 22 days, or 30 days and the answer to all these can be found only in the Collective Agreement and/or the labour relations between the Appellant and the Respondents.

In my view therefore the consideration and determination of the respondents’ case must necessarily go beyond the issue of debt to the examination and interpretation of the Collective Agreement upon which they have founded their claim.

By section 272 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the High Court of a State is conferred with jurisdiction to determine Civil Proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. However by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, Section 6(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was amended to include the National Industrial court in the list of courts in which the judicial powers of the Federation are vested.

It has become well established in law that a court is competent to adjudicate when, and only when the following are fulfilled;

(a) It is properly constituted as regards numbers and qualifications of members of the court and no member is disqualified for one reason or the other;

(b) The subject matter is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction,

(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; OLORIODE v. OYEBI (1984) 1 SCNLR 390; EZOMO VS. OYAKHIRE (1985) 1 NWLR (Pt. 2) 195.

Upon my foregoing consideration of this issue, the claim of the Respondents having been founded upon a Collective Agreement which has to be considered and interpreted before a just decision can be achieved, I agree with the learned Counsel for the Appellant that the proper venue for this case is the National Industrial Court that has exclusive jurisdiction to interpret Collective Agreements, and by the same reason, the High court of Kaduna State lacks jurisdiction to entertain the claim.

I resolve this issue in favour of the Appellant.

In view of my decision on the first issue, the 2nd issue about the wrong joinder of parties or causes has become a non issue, but it has become well established principle that this Court as a penultimate Appellate Court must consider all issues properly raised before it see KATTO V. C.B.N. (2001) FWLR (Pt. 53) 188, I now consider this second issue.

The Appellant had contented on this issue that the Respondents do not have same interest and they cannot sue collectively not withstanding that their case is similar; UKALTA V. NDINAEZE (1997) 4 NWLR (pt. 499) 251. It was submitted by learned Counsel that in employment cases employees cannot sue collectively; CCB (NIG.) PLC VS. ROSE (1998) 4 NWLR (Pt. 544) 39; BOSSA VS. JULIUS BERGER (2005) 15 NWLR (pt. 948) 409.

The learned Counsel for the Respondents has argued that the respondents’ case is under-payment of their entitlement which makes their interest to be the same since their cause of action arose from the declaration of their redundancy.

The facts of the instant case show that all the respondents were declared redundant by the Appellant at the same period and they are not challenging their redundancy. They are all claiming their reliefs on the foundation of the same Collective Agreement.

I do not find any substance in this issue and I resolve it against the Appellant.

It has been noted by the Respondents’ learned Counsel that the Appellant has in the Appellant’s Amended Brief of Argument enlarged the number of Respondents by adding the Chief Registrar/Sheriff Kaduna State High Court, Deputy Sheriff Kaduna State High Court, First Bank of Nigeria Plc and Zenith Bank Plc as 30th – 33rd Respondents, while the Appellant’s counsel has argued issues that are clearly not within the purview of the grounds of appeal and the issues distilled for determination.

However with the withdrawal and consequent striking out of the motions involving the said 30th – 33rd Respondents, it is clear that the inclusion of these 30th – 33rd Respondents and arguments on any matter concerning them have been overtaken by events and I discountenance the arguments accordingly.

Having found that the proper Court for the action of the Respondents is the National Industrial Court, it follows that the proceedings before the High Court of Kaduna State including the judgment of that Court and the steps taken thereafter, pursuant thereto, or in furtherance thereof amount to nullity, being acts of a Court that lacks jurisdiction.

Notwithstanding my conclusion on the second issue, I hold that this appeal has succeeded based on my finding on issue one about jurisdiction, and it is allowed. The decision of the High Court of Kaduna State in suit No. KDH/KAD/199/2009 is accordingly set aside while the suit is struck out.

I make no order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: The case of the Respondents against the Appellants before the lower Court was for wrong calculation of their terminal benefits and underpayment of the said benefits. They therefore claimed against the Appellants the total sum of N30, 406,661.13 (Thirty Million Four Hundred and Six Thousand, Six Hundred and Sixty One Naira, Thirteen Kobo) being unpaid entitlements.

The Appellant filed an application seeking for an order striking out the action for incompetence and for want of jurisdiction.

The grounds were that the action, as presently constituted, is bad and incompetent. Also that the Court lacks jurisdiction to entertain a matter on the interpretation of a collective agreement or on labour generally, as same is vested in the National Industrial Court.

The lower Court in its ruling dismissed the application as lacking in merit. Dissatisfied with this ruling, the Appellant has appealed to this Court.

I am in agreement with my learned brother Isaiah O. Akeju, JCA that the proper venue for the determination of the Respondents claim is the National Industrial Court.

By Section 6 of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, Chapter VII Part 1 of the Constitution of the Federal Republic of Nigeria 1999 has been amended to include Section 254 A after Section 254. This new section sets up the National Industrial Court of Nigeria.

The provision of Section 254 C (K) Supra is that it is the National Industrial Court that has jurisdiction, to the exclusion of any other Court, to entertain all matters “relating to or connected with disputes arising from payment or non payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matter incidental thereto;” Emphasis mine

It is the National Industrial Court, I therefore hold, that is seised with jurisdiction to entertain the Respondents’ action.

I agree with His Lordship that this appeal succeeds. The Ruling of the High Court of Kaduna State in Suit NO. KDH/KAD/199/2009 is accordingly set aside and the substantive suit struck out.

AMINA AUDI WAMBAI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother I.O. Akeju JCA, I agree with his reasoning and conclusion reached that the appeal succeeds and is hereby allowed. The judgment of the High Court of Kaduna State in suit No. KDH/KAD/199/2009 is accordingly set aside.

Appearances

Otunba Isola AdebanjoFor Appellant

AND

S.B. Mohammed Esq.For Respondent