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National Industrial Court

ALH. HALIDU ALI -VS- IDRIS KABO & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON WEDNESDAY 18TH DAY OF SEPTEMBER 2019

BEFORE HIS LORDSHIP: HON. JUSTICE  S. O. ADENIYI

SUIT NO: NICN/KD/04/2019

         BETWEEN:

         ALH. HALADU ALI ………………………………………..CLAIMANT

         AND

  1.  IDRIS KABO
  2. AHMED IBRAHIM WURNO
  3. MAGADISHU BARRACK ONION SELLERS MULTI PURPOSE

COOPERATIVE SOCIETY………………………………….DEFENDANTS

J U D G E M E N T

The Claimant commenced the instant suit by Originating Summons filed on 24/01/2019.

The summary of his claim, as garnered from the processes is that he was appointed as a life patron of the 3rd Defendant which is a registered Cooperative Society under the Cooperative Societies Act and the Kaduna State Cooperative Societies Regulations. The Claimant alleged that the 1st and 2nd Defendants as executive officers of the 3rd Defendant, ratified a resolution for the payment of his remuneration and/or allowance as a life patron; and that the Defendants had failed to pay the said remuneration in spite of several demands and several promises made by the 1st Defendant.

  1. On the basis of these facts, the Claimant prayed the Court for the determination of the questions set out as follows:
  2. Whether the 3rd Defendant is a legal entity recognised as a Cooperative Society by the Laws of Kaduna State capable of having paid personnel/staff and also having its Constitution which created positions that also (sic) capable of having persons elected as Executive officers of the 3rd Defendant to pilot the affairs of the 3rd Defendant.
  3. Whether the 1st – 2nd Defendants are lawfully elected as the Executive officers of the 3rd Defendant to pilot the affairs of the 3rd Defendant under the positions created by the Constitution of the 3rd Defendant and capable of appointing personnel/staff for the 3rd Defendant.
  4. Whether the 1st – 2nd Defendants jointly and severally have the powers as the Executive officers of the 3rd Defendant to issue on behalf of the 3rd Defendant a letter dated on the 15th day of March, 2013 to the Claimant notifying the Claimant of the confirmation of his appointment as the life patron of the 3rd Defendant.
  5. Whether the 1st – 2nd Defendants as Executive officers of the 3rd Defendant can make resolutions for the 3rd Defendant and the resolution of the 1st – 2nd Defendants on behalf of the 3rd Defendant to notify the confirmation of the appointment of the Claimant as life patron of the 3rd Defendant is binding and lawful on the 3rd Defendant via a letter written to the Claimant dated the 15th day of March, 2013.
  6. If the answers to questions 1 to 4 is in the negative, whether the purported letter of notification of the confirmation of the appointment of the Claimant as the life patron of the 3rd Defendant is valid and subsisting to make the 3rd Defendant liable.
  7. Whether in respect to the said letter written to the Claimant by the 1st – 2nd Defendants, the Claimant is right under the said letter to demand to be paid monthly the total sum from the date of the letter to present date making a total sum of N3,105,000.00 as due and unpaid monthly allowance as contained in the letter dated the 15th day of March, 2013 to date.
  8. Whether in the light of the provision of Article XVIII read along with the provision of Article XII (d) of the Constitution of the 3rd Defendant, the Claimant being one of the Constitution Drafting Committee members of the 3rd Defendant is not already a life member of the 3rd Defendant and therefore competent to claim the benefit contained in the letter dated the 15th day of March, 2013.
  9. Whether the letter dated the 15th day of March, 2013 written to the Claimant by the 1st – 2nd Defendants on behalf of the 3rd Defendant is an offer of employment to the Claimant to work with the 3rd Defendant on a monthly allowance of N45,000.00.
  10. If the answer to question 7 is in the negative, whether the 1st – 2nd Defendants on behalf of the 3rd Defendant (sic) to pay the monthly allowance contained in the letter dated the 15th day of March, 2013 to the Claimant.
  11. Whether having issued the letter dated the 15th day of March, 2013 to the Claimant by the 1st – 2nd Defendants, the Claimant is not entitled to be paid the sum of N45,000 as monthly allowance by the 3rd Defendant and failure of the 1st – 2nd Defendants to pay the said amount to the Claimant entitles the Claimant to claim the cumulative sum from them.
  12. Upon the determination of these questions, the Claimant thereby claimed against the Defendants the reliefs set out as follows:
  13. A DECLARATION that the letter of notification of the confirmation of the appointment of the Claimant as life patron of the 3rd Defendant issued to the Claimant by the 1st – 2nd Defendants on behalf of the 3rd Defendant and the entire members of the 3rd Defendant is lawful and valid.
  14. A DECLARATION that the 1st – 2nd Defendants have the powers to call meetings and pass a resolution for the purpose of notification of the confirmation of the appointment of the Claimant as the life patron of the 3rd Defendant and also putting the Claimant on a monthly allowance of N45,000 which action being the officers the 3rd Defendant binds the 3rd Defendant.
  15. A DECLARATION that the 1st – 2nd Defendants as executive of the 3rd Defendant having the constitutional and lawful authority and power under the Constitution of the 3rd Defendant to issue the letter dated the 15th day of March, 2013 to the Claimant on behalf of the 3rd Defendant.
  16. A DECLARATION that the provision of Article XXVIII and Article XII (d) of Constitution of the 3rd Defendant, the Claimant being already a life member of the 3rd Defendant is entitled to the said appointment and the financial benefit attached to the appointment.
  17. A DECLARATION that by virtue of the letter dated 15th day of March, 2013 the Claimant is a staff of the 3rd Defendant on a monthly allowance contained in the said letter and the letter is an offer of employment by the 3rd Defendant to the Claimant.
  18. A DECLARATION that being a staff of the 3rd Defendant, the 1st – 2nd Defendants as the executive officers of the 3rd Defendant are duty bound to pay the Claimant his monthly allowance as at when due.
  19. A DECLARATION that it is wrong and unlawful for the 1st – 2nd Defendants after appointing and issuing the Claimant with the letter dated the 15th day of March, 2013 for the period under review to refuse to pay the Claimant the monthly allowance on a monthly basis or the total sum due to the Claimant in line with the appointment to date.
  20. AN ORDER compelling the 1st – 3rd Defendants to pay the Claimant the total sum of N3,105,000.00 being amount due and unpaid to the plaintiff in line with the appointment dated 15th day of March, 2013 to date and subsequently thereafter to be paid monthly until the appointment is revoked.
  21. To support the Originating Summons, the Claimant deposed to an Affidavit of thirty – one (31) paragraphs, to which he annexed four (4) documents as exhibits; as well as his learned counsel’s written address containing legal arguments in support of the Originating Summons.

Upon being served with the originating processes in this suit, the Defendants entered a Conditional Appearance and further filed a Counter – Affidavit containing 17 paragraphs to oppose the Originating Summons on 08/02/2019. The Counter – Affidavit was also subjoined with the Defendants’ learned counsel’s written address to oppose the Originating Summons.

The Claimant also filed a Further Affidavit on 14/02/2019, in response to the Counter – Affidavit filed by the Defendants.

  1. The Court proceeded to hear the Originating Summons on 03/05/2019 and reserved the judgement to 03/07/2019.

However, on 20/06/2019, the Court summoned the parties to address the Court on the issue of jurisdiction raised suo motu; on whether this Honourable Court has jurisdiction to entertain the case. In compliance to the order of Court, parties filed their written addresses and same was adopted on 03/07/2019.

  1. Before proceeding to consider the submissions of the learned counsel to the parties on the substantive matter as contained in their respective written addresses, it is pertinent in my view to first consider the issue of jurisdiction raised suo motu by the Court. This is so because the issue of jurisdiction is very fundamental, and being a threshold issue it is imperative to have it determined first before proceeding to the substantive matter since lack of it would deprive this Court the power to pronounce on the main issue.

In determining the issue of jurisdiction, I should state that I have taken due cognizance and benefits of the totality of the written and oral arguments canvassed by respective learned counsel; and as I proceed with the judgment, I shall endeavour to make specific reference to their submissions as I deem needful.

  1. The law needs no restatement that in order to determine whether or not it has jurisdiction to adjudicate on the Claimant’s suit, the Court must confine itself to the examination of the Originating process, which in the instant case is the Originating Summons and the Affidavit deposed in support; in other words, it is the Claimant’s claims that determine the jurisdiction of the Court. See P. D. P Vs Sylvia & Ors [2012] 13 NWLR (Pt 1316) 85 at 127; Dickson Ogunsehinde Virya Farms Ltd Vs Societe Generale Bank Ltd & Ors[2018] LPELR-43710(SC).
  2. I have proceeded to appraise the facts deposed by the Claimant and the reliefs being sought.

According to the Claimant, prior to its registration as a Cooperative Society, the 3rd Defendant belonged to the Tomatoes Sellers Multipurpose Cooperative Ltd.

The Claimant further deposed that through the efforts of ten members (inclusive of the Claimant), the 3rd Defendant was registered with the Kaduna State Government; and that by the Constitution of the 3rd Defendant, the ten members that applied for the registration of the 3rd Defendant were made members of the Board of Trustees and life patrons.

The Claimant further deposed that his application for remuneration of a monthly allowance of N45,000.00 (Forty-Five Thousand Naira) as a life patron was approved by the 1st and 2nd Defendants and other executive officers; that he was issued with a letter of notification of his appointment as life patron dated 15/03/2013; and that he commenced duties as the life patron.

The Claimant contended that he was not paid his monthly remuneration in spite of the several promises and reassurances made by the 1st and 2nd Defendants; and that he is entitled to his claim for N3,105,000.00 being his monthly remuneration for the services he rendered in his capacity as life patron.

  1. The learned counsel for the Claimant, K. P. Andezai Esq., submitted on the issue of jurisdiction that the Constitution of the Federal Republic of Nigeria is the enabling law which created this Court and confers it with the jurisdiction. Citing the provisions of Sections 254C(1)(j) and the authorities of Onuorah Vs K.R.P.C Ltd [2005] All FWLR (Pt 256) 1356 at 1364; Ansa Vs R.T.P.C.N [2008] All FWLR (Pt 405) 1683 at 1701, learned Claimant’s counsel further submitted that the jurisdiction of the Court is determined by the Claimant’s claim and that by the combined provisions of Sections 254C(1) (j) and (k) the Claimant’s suit falls within the jurisdiction of the Court.

The learned Claimant’s counsel further argued that the subject matter of the Claimant relates to the interpretation of the letter written by the Defendants for the Claimant’s appointment and payment of his allowances.

Learned Claimant’s counsel therefore urged the Court to hold that the Court has jurisdiction to entertain the case.

In his arguments on the issue of jurisdiction, the learned counsel for the Defendants, M. T. Mohammed Esq., posited that the Claimant’s Originating process was not issued by the registrar as required by the Rules and this defect has robbed the Court of its jurisdiction. In support of his proposition, learned Defendants’ counsel cited the case of Registered Trustees of Divine Commission Int’l Church Vs Ikolodo [2018] LPELR 44199

  1. Now, it is settled law that a Court is said to have jurisdiction and therefore competent to determine a suit when:-
  2. a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
  3. b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and
  4. c) The case comes before a court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the court the jurisdiction to hear and determine the suit. See Madukolu Vs Nkedmdili [1962] 3 SCNLR 34; Drexel Energy & Natural Resources Ltd Vs Trans International Bank Ltd [2008] 12 S.C. (Pt II) 240.

  1. As correctly submitted by the learned counsel for the Claimant, the jurisdiction of this Court is defined in Section 7 of the National Industrial Court Act 2006 (NICA) and Section 254C of the Constitution of the Federal Republic of Nigeria 1999 – (the 1999 Constitution) respectively. It must be mentioned that the jurisdiction of this Court in Section 254C of the 1999 Constitution (as amended) is more expansive as the provision covers variety of subject matters not stated in Section 7 of NICA. Therefore, as correctly submitted by the learned Claimant’s counsel, the principal and comprehensive law on the jurisdiction of this Court is the 1999 Constitution (as amended).
  2. I have taken liberty to reproduce the provision of Section 254C (1) of the Constitution.

Section 254C (1):

“Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the condition of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.

(b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; 

(c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto; 

(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 relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine; 

(e) relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom; 

(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;

(g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;

(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;

(i) connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;

(j) relating to the determination of any question as to the interpretation and application of any-

(i) collective agreement;

(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;

(iii) award or judgment of the Court :

(iv) term of settlement of any trade dispute;

(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;

(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour industrial relations or work place;

(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;

(k) 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 matters incidental thereto;

(l) relating to-

(i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith ;

(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; and

(iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;

(m) relating to or connected with the registration of collective agreements.

The effect of the above provisions is that this suit can only be entertained by this Court if cause of action of the Claimant falls within any of the subject matters of Section 254C (1) of CFRN 1999 as set out above.

  1. In determining whether this Court has the jurisdiction to hear the matter, it will require a careful examination of the factual situation giving rise to the claim as contained in the Originating processes.

I had carefully perused the facts pleaded by the Claimant in his Affidavit in Support of Originating Summons. It was disclosed in Paragraphs 11, 12, 13, 14, 15, 16, 17 and 20 of the Affidavit in Support thereof that the 1st and 2nd Defendants as Executive Officers of the 3rd Defendant appointed the Claimant as one of the “life members/patrons of the 3rd Defendant. The Claimant further deposed to facts that the 1st and 2nd Defendants issued a letter of notification of appointment dated 15/03/2013 (Exhibit 4); and by the said letter he was employed by the Defendants on a monthly allowance of N45,000.00 (Forty-Five Thousand Naira).

  1. Now, can the Claimant qualify as an employee of the 3rd Defendant from Exhibit 4? Or to put in other words, is there an employer/employee relationship between the Claimant and the Defendants within the purview of Section 254C (1)? This seems to be the crux of this case.

The relevant portion of Exhibit 4 is reproduced hereunder:

“We the executive officers of Mogadishu Barrack Onion Multi-Purpose Co-operative Society Ltd, inclusive of all the registered members, has (sic) today resolved that the Association has endorsed your appointment as its life patron of our great Associative (sic) in recognition of the noble roles you played in seeing the formation and registration of our Association.

As the life patron, you will have the overriding powers in consultation with the assistant life patron exercise (sic) final decisions as it relates to the affairs of the Association.

It was resolved that you will be entitled (sic) a monthly allowance of N45,000.00 (Forty – Five Thousand Naira) only.” (Underlining for emphasis)

  1. The definitions of an employer and employee/worker are provided in Section 91 of Labour Act Cap 198 Laws of Federation of Nigeria 1990 (as amended).

“Worker means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, but does not include –

(a) any person employed otherwise than for the purposes of the employer’s business; or

(b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or

(c) members of the employer’s family; or

(d) representatives, agents and commercial travelers in so far as their work is carried out outside the permanent workplace of the employer’s establishment; or

(e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adopted for sale in his own home or on other premises not under the control or management ot the person who gave out the article or the material; or

(f) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply;”

“An employer means any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer”

See also Shena Security Co Ltd Vs Afropack (Nig) Ltd [2008] LPELR 3052

  1. From Exhibit 4, the Claimant was referred to as “a life patron”. The dictionary definition of a patron is “a person who supports with money, gifts, and efforts”. I am of the view that a patron is one who supports organisations or associations voluntarily. I hold the firm view that the Claimant by Exhibit 4 and definition of a patron is not an employee or worker of the Defendants, neither is he a political or public office holder, judicial officer or civil or public servant. I therefore do not agree with the submission of the learned Claimant’s counsel that Section 254C (1) (k) applies to the instant case.

In coming into terms with the facts of the instant case, I am of the view that the facts does not disclose an employer/employee relationship between the Claimant and Defendants and that the claims did not arise in connection with matters which took place at the workplace as captured under Section 254C (1) (a) and (k) of the 1999 Constitution of Nigeria (as amended). I so hold.

  1. Furthermore, I do not agree with the submission of learned Claimant’s counsel that the Claimant’s claim falls within the jurisdiction of the Court as provided under Section 254C (1) (j) which relates to any question of interpretation and application of “trade union constitution, the constitution of an association of employers or any association relating to employment, labour industrial relations or work place”.

It is crystal clear from the facts of this case that the 3rd Defendant is not a trade union, an association relating to employment, labour industrial relation or work place and as such, Section 254C (1) (k) does not apply for the interpretation and application  this Court of its constitution.

The 3rd Defendant by its name is a Co-operative Society and nothing more. See Part A and Part C of the Third Schedule to the Trade Unions Act for the list of registered trade unions.

Therefore, this suit is clearly not about a dispute arising from employment or labour or trade union. In the absence of a master and servant relationship between the parties, this suit cannot be said to come under labour or employment matter as to clothe this Court with jurisdiction to hear and determine it. I so hold.

 

  1. On this occasion, in the light of the various analysis that I have made, I am of the firm view that the Claimant’s suit does not come under any of the subject matters stated in Section 254C (1) of the Constitution.

I must hold that this action to use the medical terminology was dead on arrival. It cannot be entertained by this Court for want of jurisdiction. The action must and it is hereby accordingly struck out.

I make no order as to costs.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

18/09/2019

 

Legal representation:

K.P. Andezai Esq for Claimant

M.T. Mohammed Esq. for Defendants

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