Giuseppe Francesco E. Ravelli -VS- Digitsteel Integrated Services

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: FEBRUARY 16, 2018

SUIT NO. NICN/LA/599/2016

BETWEEN

Giuseppe Francesco E. Ravelli – Applicant

AND

Digitsteel Integrated Services Limited – Respondent

REPRESENTATION

Ogurotimi Aju, with Moses Usoh-Abia for the claimant.

Oluwatoba Oyebowale, for the defendant.

JUDGMENT

By an originating motion dated 29th September 2016 but filed on 30th September 2016, the applicant is praying for:

An order, pursuant to Article 22 of the Employment Contract dated 17th August 2012, appointing an Arbitrator for the parties herein, in respect of the dispute arising from the subject matter.
And for such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.

The originating motion (supported by an affidavit, with exhibits attached, a written address, a further affidavit, with exhibits attached, and a reply on points of law) is brought pursuant to section 7(2)(B) of the Arbitration and Conciliation Act Cap A18 LFN 2004, Articles 6 and 8 of the Arbitration Rules, section 254C(1)(k) of the 1999 Constitution, section 14 of the National Industrial Court (NIC) Act 2006, Order 11 of the NIC Rules 2007 and the inherent jurisdiction of the Court.

The grounds for the application are:

The applicant and the respondent are parties to an employment contract dated 17th August 2012.
In Article 22 of the said employment contract, it is provided that any unresolved dispute arising out of or relating to the contract shall be finally resolved by a sole arbitrator in accordance with the provisions of the Arbitration and Conciliation Act of Nigeria and the Arbitration Rules made thereunder.
A dispute has arisen between the parties over the respondent’s breach of material terms of the employment contract, unpaid remuneration due to the applicant, intolerable mistreatment meted out to him by the respondent, and the constructive termination of the employment contract by the respondent. The dispute has remained unresolved despite attempts by the applicant to secure a possible resolution.
The applicant delivered a notice of arbitration dated 16th August 2016 to the respondent on 18th August 2016 nominating three (3) persons for possible appointment as arbitrator, and invited the respondent to concur on the appointment of any one of them, or otherwise make its own nomination, within twenty-one (21) days of the delivery of the notice of arbitration on the respondent.
The respondent has till date failed, refused and/or neglected to concur on the appointment of any one of the proposed arbitrators, or otherwise make its own nomination.
The foregoing ground prompt the instant application.

The defendant reacted by filing on 13th October 2016 a counter-affidavit, with an exhibit attached, and a written address.

At the Court’s sitting of 28th March 2017, the Court noted that as commenced, it is questionable whether the suit is competently commenced as to confer jurisdiction on this Court given that the suit was filed vide an originating motion pursuant to the Arbitration and Conciliation Act Cap A18 LFN 2004. Parties, starting with the applicant, were asked to file written addresses. However, it was the respondent who first filed its written address. The respondent’s written address on the competence of the suit was filed on 12th June 2017, while the applicant’s was filed on 30th June 2017. There is no reply on points of law.

RESPONDENT’S SUBMISSIONS ON COMPETENCE OF THE SUIT

The respondent submitted one issue for determination, namely: whether this suit as presently constituted is competent. To the respondent, for a suit to be competent, same (among other considerations) must be brought in accordance with the Rules of the Court. That Order 3 of the National Industrial Court (Civil Procedure), 2017 provides for the means by which an action can be commenced in the National Industrial Court. These means under Order 3 Rule 1(1) are: Complaint; Originating Summons; Originating motions; Application for Judicial Review; Notice of Appeal or Petition; Referral from the Minister of Labour and Productivity; and by any other means that may be prescribed by these Rules, Act or Law in force in Nigeria. That the Rules went further to explain how an action may be commenced using any of these methods. Thus under Order 3 Rules 2, 3, 4, 5 and 6, that it is clearly provided that action may be commenced by Complaint, Originating Summons, Application for Judicial Review, Notice of Appeal and Referral by the Honourable Minister for Labour and Productivity. However, that for Originating Motion as provided for under Order 3 Rule 7, same cannot by itself alone activate the jurisdiction of the Court and neither can it be used to commence an action. Order 3 Rule 7(1) provides thus:

Whenever a party to a suit intends to move the Court to take any action touching on or concerning or in respect of a matter already before the Court either as Complaint, Originating summons, or Appeal, such action shall be by Motion on Notice.

That from this provision, it is clear that if a party wants to move the Court to take an action vide Originating Motion such must be based on a matter already before the Court either as Complaint, Originating Summons or Notice of Appeal.

That the implication of this is that an Originating Motion cannot be used to commence an action before this Court; same can only be used to move the Court to take an action in respect of a matter already commenced before Court vide a Complaint, Originating Summons or Notice of Appeal. That it is trite that the Rules bind parties to the proceedings and regulate the very proceedings by which a relief is sought, citing Onyali v. Okpala [2001] 1 NWLR (Pt. 694) 282 at 302. That it, therefore, follows that parties to proceedings must obey the Rules of Court, citing Muhammed v. Kayode [1997] 11 NWLR (Pt. 530) 584 at 598 – 599. That the present suit, which was commenced vide Origination Motion, is incompetent as same was commenced in flagrant disregard of the Rules of this Court specifically Order 3 Rule 7. The Court was referred to Oyebade v. Ajayi [1993] 1 NWLR (Pt. 269) 313 at 331- 332 on the attitude to non-compliance with Rules of Court. That since Originating Motion cannot by itself alone be used to commence an action, the present suit having been commenced by Originating Motion, is incompetent.

The respondent further submitted that section 7(2)(B) of the Arbitration and Conciliation Act relied on by the applicant cannot activate the jurisdiction of this Court as far as commencing an action is concerned; and then proceeded to reiterate its argument as to non-compliance with Rules of Court, citing a number of cases in the process. The respondent then submitted that to allow the applicant prosecute this matter as presently constituted will not anyway serve the interest of justice thus same is bound to be dismissed, urging the Court to so dismiss the suit with substantial cost against the applicant.

APPLICANT’S SUBMISSIONS ON THE COMPETENCE OF THE SUIT

The applicant adopted the sole issue submitted by the respondent for determination; and submitted that the suit as presently constituted is competent. Also, that this Court has the jurisdiction to entertain the Originating Motion and grant the reliefs sought therein. That the competence of the Originating Motion is founded on the following statutes and Rules of Court: The 1999 Constitution; the Arbitration and Conciliation Act, Cap A18 LEN 2004; the National Industrial Court Act 2006; and the National Industrial Court Rules 2007. To the applicant, the jurisdiction of this Court to entertain an application to appoint an arbitrator for the parties is pursuant to section 7(1) and (2)(b) of the Arbitration and Conciliation Act (ACA) 2004, which provides thus:

(1) Subject to subsection (3) and (4) of this section, the parties may specify in the arbitration agreement the procedure to be followed in appointing an arbitrator.

(2) Where no procedure is specified under subsection (1) of this section –

(b) in the case of an arbitration with one arbitrator, where the parties fail to agree on one arbitrator, the appointment shall be made by the court on the application of any of the parties to the arbitration agreement made within thirty days of such disagreement.

That the ACA empowers the Court to appoint an arbitrator for the parties where an application is made to it by a party to the arbitration agreement upon the parties’ failure to agree on one arbitrator to arbitrate over their dispute.

The applicant cited section 254C(1)(k) of the 1999 Constitution, which provides thus:

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 –

(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.

To the applicant, section 7(1) and (2)(b) of the ACA, which confers jurisdiction on the Court to appoint an arbitrator for parties, is consistent with section 254C(1)(k) of the Constitution. That the phrase “such other jurisdiction as may be conferred upon it by an Act of the National Assembly” in section 254C(1)(k) of the Constitution gives life and force to section 7(1) and (2)(b) of the ACA for the purpose of the applicant’s Originating Motion seeking the appointment of an arbitrator by this Court.

The applicant proceeded that it is pertinent to point out that the Constitution and the NIC Act 2006 did not exclude the applicability of the ACA to labour and employment disputes. That the ACA is an Act of the National Assembly and going by the wordings of section 254C(1)(k) of the Constitution it is reasonable and logical to submit that the ACA was contemplated as an Act of the National Assembly that may confer jurisdiction on the National Industrial Court of Nigeria. That the applicant in this suit cannot go to the Federal High Court or the High Court of the State to seek the reliefs sought herein because these Courts do not have jurisdiction to entertain labour and employment matters, urging the Court to give effect to the provisions of the ACA in this suit to prevent a situation of helplessness that may be foisted on the applicant who will not be able to get any Court to appoint an arbitrator to arbitrate over the parties’ dispute.

The applicant anticipated the possibility that the respondent may argue that the relevant provisions of the ACA should not apply to the NIC because only the Federal High Court and High Court of a State were mentioned in the Act. Indeed, that section 57 of the ACA, which is the interpretation section of the Act, defines the words “Court” and “Judge” to mean:

“Court” means the High Court of a State, the High Court of a Federal Capital Territory, Abuja or the Federal High Court;

“Judge” means a Judge of the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court.

To the applicant, given the provisions of the Constitution and the jurisprudence of labour and employment matters in Nigeria, any argument of such is inherently flawed and unsustainable. That the provisions of section 4 of the Constitution lend credence to the applicant’s submission. The section provides as follows: “Section 240 of the Principal Act is altered by inserting immediately after the words “Federal High Court” in line 3 the words “the National Industrial Court”. That upon a purposeful reading of section 254C(1)(k) of the Constitution, section 4 of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 and section 57 of ACA it will be reasonable to expect that a Court faced with a situation like this present one, will read the words “National Industrial Court” into the provisions immediately after the words “Federal High Court” in section 57 of ACA to confer on the NIC similar powers conferred on the Federal High Court and the High Court of a State, on the appointment of arbitrators by the Court, urging the Court to so hold.

The applicant continued that an application to the NIC for the appointment of an arbitrator falls within the scope of the underlined phrase, “matters incidental thereto” in section 254C(1)(k) of the Constitution (as altered). That an application to the Court for the appointment of an arbitrator is a matter incidental to the jurisdiction of the Court over disputes arising from non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, etc as is the case of the dispute between the applicant and the respondent. That the crux of the dispute between the parties before the Court is the nonpayment of the applicant’s remuneration and other entitlements, by the respondent. That the parties’ contract has an arbitration clause which provides that where there is a dispute same shall be resolved by a sole arbitrator to be appointed by the parties. That the parties have failed to agree on the sole arbitrator and the applicant sought the Court’s discretionary power appointing an arbitrator for the parties pursuant to the relevant provisions of the ACA. That the foregoing being the case, the Originating Motion is competent and should be heard, urging the Court to so hold.

The applicant went on that the NIC Act 2006 and the NIC Rules 2007 empower this Court to entertain the applicant’s Originating Motion. He referred to section 14 of the NIC Act, which provides as follows:

The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

To the applicant, this provision enjoins this Court to exercise its jurisdiction to entertain the applicant’s Originating Motion, urging the Court to so hold.

That it is important to point out that the applicant’s Originating Motion was filed on 30th September 2016 at which time the NIC Rules 2007 was in operation. That by virtue of this point the Origination Motion should be heard on the NIC Rules 2007, and not the National Industrial Court Rules, 2017 (NICN Rules 2017) which came into force in January 2017 after the suit was already before the Court. That the NIC Rules 2007 created an enabling environment for the Court to entertain an Originating Motion of this nature. Order 15 of the NIC Rules 2007 provides as follows: “Where no provision is made in these Rules as to practice and procedure or where the provisions are inadequate, the Court may adopt such procedure as will in its view do substantial justice to the parties”. That this provision of the NIC Rules 2007 empowers this Court to entertain the applicant’s Origination Motion seeking the appointment of an arbitrator by the Court to arbitrate over the parties’ dispute. That it is clear that the parties’ employment relationship is governed by contract; and the contract has an arbitration clause which sets out that in the event of a dispute between the parties such dispute shall be resolved by a sole arbitrator to be appointed by the parties. That the contract adopted the Arbitration and Conciliation Act as the governing law for its arbitration process. That being the case, that substantial justice to the parties will be their having an opportunity to give binding force to the terms of their contract. That in view of the absence of a provision on the appointment of an arbitrator for the parties in NIC Rules 2007, the Court should hear the applicant’s Originating Motion, give effect to Order 15 of the NIC Rules 2007 and adopt such procedure contained in the Arbitration and Conciliation Act as this will do substantial justice to the parties.

The applicant continued that although section 254C(3) of the Constitution enabled the establishment of an Alternative Dispute Resolution (ADR) Centre within the National Industrial Court premises on matters of which jurisdiction is conferred on the Court by the Constitution or any Act or Law, this provision does not preclude the Court from entertaining the applicant’s Originating Motion; in fact it allows it. The said Section 254C(3) of the Constitution provides as follows:

The National Industrial Court may establish an Alternative Dispute Resolutions Centre within the Court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law:

Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.

That Alternative Dispute Resolution Centre has been created for the National Industrial Court of Nigeria. Order 24 Rule I of the NICN Rules 2017 provides as follows:

The President of the Court or a Judge of the Court may refer for amicable settlement through conciliation or mediation any matter filed in any of the Registries of the Court to the Alternative Dispute Resolution Centre (hereinafter referred to as the Centre) established within the Court premises pursuant to Section 254C(3) of the 1999 Constitution (as amended by the Third Alteration Act, 2010) and Article 4(5)(a) – (e) of the Instrument of the Alternative Dispute Centre.

To the applicant, the Alternative Dispute Resolution Centre now set up by the Court pursuant to section 254C(3) of the Constitution administers conciliation and mediation as means of settling disputes and not arbitration. That being the case, it is not in the best interest of justice for the parties’ dispute to be referred thereto since the parties’ contract specifically provided for arbitration as a mechanism for resolving parties’ disputes.

In response to the respondent’s arguments, the applicant submitted that the suit as presently constituted by Originating Motion is competent and the Court has jurisdiction to entertain same. That the respondent has misconceived the legal point in focus in its written submissions; and its legal arguments having flowed from the misconception becomes untenable and ought to be discountenanced in their entirely by the Court. That the crux of the respondent’s arguments is that the present suit is not competent because it is by Originating Motion. That the respondent went on to argue that an Originating Motion cannot be used to commence an action before the National Industrial Court, relying on Order 3 Rule 1(1) of the NICN Rules 2017 and several judicial authorities. To the applicant, the overall arguments of the respondent are baseless and ought to be discountenanced because the NICN Rules 2017 was not in force as at 30th September 2016 when the Originating Motion was filed by the applicant. That being the case the judicial authorities relied upon by the respondent in support of its argument should also be discountenanced since they cannot apply in support of a baseless argument, urging the Court to so hold. That assuming but without conceding that the NICN Rules 2017 is applicable for the purpose determining the competence of this suit, this is equally competent under the NICN Rules 2017 given that Order 3 Rule 1(1)(c) of the NICN Rules 2017 permits civil proceedings to be commenced by originating motions; as such the respondent’s argument is misleading. The applicant concluded by submitting that this suit is competent and the Court has jurisdiction to entertain it as filed.

THE SUBMISSIONS OF THE APPLICANT IN SUPPORT OF THE ORIGINATING MOTION

In addressing the merit of the case, the applicant submitted a sole issue for determination, namely:

Whether the applicant has placed before the Honourable Court sufficient material facts to deserve the grant of the Court’s discretionary power appointing an arbitrator for the parties pursuant to section 7(2) of the Arbitration and Conciliation Act (ACA) and Articles 6 and 8 of the Arbitration Rules.

On the power of the Court to appoint an arbitrator for the parties, the applicant referred to section 7(1) and (2)(b) of the Arbitration and Conciliation Act, which provides that parties may specify in the arbitration agreement the procedure to be followed in appointing an arbitrator; and where no procedure is specified under subsection (1) and in the case of an arbitration with one arbitrator, where the parties fail to agree on one arbitrator, the appointment shall be made by the Court on the application of any party to the arbitration agreement made within thirty days of such disagreement. That Article 6 of the Arbitration Rules made pursuant to the ACA provides as follows:

(1) If a sole arbitrator is to be appointed, either party may propose to the other the names of one or more persons, one of whom would serve as the sole arbitrator.

(2) If within thirty days after receipt by a party of a proposal made in accordance with paragraph 1, the parties have not reached agreement on the choice of a sole arbitrator, the sole arbitrator shall be appointed by the Court.

Article 8(1) of the Arbitration Rules on its part provides that when a Court is requested to appoint an arbitrator pursuant to Article 6 or Article 7, the party which makes the request shall send to the Court an affidavit together with a copy of the notice of arbitration, a copy of the contract out of or in relation to which the dispute has arisen and a copy of the arbitration agreement if it is not contained in the contract. The court may require from either party such information as it deems necessary to fulfill its functions, citing Kano State Oil and Allied Products Ltd v. Kofa Trading Company Ltd [1995 – 1996] All NLR (the page was not supplied).

On the power of the Court to appoint a sole arbitrator for the parties where the agreement between the parties contains no comprehensible procedure for the appointment of an arbitrator, the applicant referred to Bendex Engineering Corporation v. Efficient Petroleum (Nig.) Ltd [2001] 8 NWLR (Pt. 715) 333 CA. To the applicant, he has shown in paragraphs 7 – 13 of the affidavit in support of his application that parties agreed in Article 22.3 of the employment contract to have their disputes arising out of or relating to the contract finally resolved by a sole arbitrator in accordance with the ACA and the Arbitration Rules made thereunder. The said Article 22.3 reads as follows:

Any dispute which has not been resolved by negotiation of the parties as set out above within sixty days after delivery of the initial notice of negotiation, or if the parties failed to meet within 30 days after delivery, shall be finally resolved by arbitration in accordance with the provisions of the Arbitration Act of Nigeria and its rules by a sole arbitrator. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of arbitration shall be Abuja, Nigeria

That a dispute arose between the parties over the respondent’s breach of the material terms of the employment contract, the applicant issued a Notice of Arbitration (Exhibit E) dated 16th August 2016 to the respondent on 18th August 2016 nominating 3 (three) persons for possible appointment as arbitrator, and invited the respondent to concur on the appointment of any one of them, or make its own nomination, within 21 (twenty-one) days of the delivery of the Notice of Arbitration on the respondent. The respondent failed and/or refused to either concur with the applicant on the appointment of a sole arbitrator or make its nomination, and the time stipulated in the applicant’s Notice of Arbitration has elapsed. The applicant then submitted that in line with the authorities he furnished, this Court has the power to appoint an arbitrator for the parties; and that in the circumstances of this case, the exercise of the Court’s power appointing a sole arbitrator for the parties is justifiable, urging the Court to so hold.

On the applicant’s fulfillment of the conditions precedent for the appointment of an arbitrator by the Court, the applicant submitted, referring to Bendex Engineering Corporation v. Efficient Petroleum (Nig.) Ltd (supra) at 363, that where an application is made to the Court for the appointment of arbitrator(s), the fundamental parameters which the Court is enjoined to consider in exercising its discretion are as follows: whether there is an arbitration agreement; whether the dispute alleged by the applicant falls within the nature of disputes contemplated in the agreement; and whether any party or the parties have failed or neglected to appoint arbitrators to wade into the dispute. That the applicant has, by his affidavit evidence, complied with these conditions. That a Court entertaining an application to appoint an arbitrator is only enjoined to see whether prima facie a dispute contemplated in the arbitration agreement between the contending parties has been established; and where it is depicted that there is a prima facie dispute and a party or the parties failed or neglected to appoint arbitrator(s) to wade into the dispute, the Court will come in to help them out of the impasse by appointing the arbitrator, citing Bendex Engineering Corporation v. Efficient Petroleum (Nig.) Ltd (supra) and Royal Exchange Assurance v, Benthworth Nigeria Ltd [1976] LPELR-2961(SC). That the applicant’s case is a deserving case for this Court to come to the aid of the parties by appointing an arbitrator to end the present impasse in the interest of justice, urging the Court to so hold. In conclusion, the applicant urged the Court to grant his prayers.

THE SUBMISSIONS OF THE RESPONDENT IN OPPOSITION TO THE ORIGINATING MOTION

The respondent too submitted a sole issue for determination, namely: whether this Honourable Court ought to exercise its discretion in granting the applicant’s application dated 29th September 2016 having regards to the facts and circumstances of this suit. To the respondent, the applicant’s application dated 29th September 2016 is entirely premised on the provisions of clause 22 of the applicant’s employment contract dated 17th August, 2012. That to rely on a clause or provision of a contract (for whatever purpose) presupposes that such contract is still subsisting, citing Oyedele v. LUTH [1990] 6 NWLR (Pt. 1550) 194 CA at 199, which held that no employer could prevent an employee from resigning from its employment to seek greener-pastures elsewhere. That the applicant, exercising this unfettered right, terminated his employment contract with the respondent vide his letter of resignation dated 30th April 2015 (Exhibit DG1). On the effect of termination of contract of employment, that NNPC v. Idoniboye-Obu [1996] 1 NWLR (Pt. 427) 655 CA at 676 held thus “It is an established principle of law that termination of a contract of service even if unlawful brings to an end the relationship of master and servant”. That it is trite that you cannot put something on nothing and expect it to stand. That the applicant by virtue of Exhibit DG1 has brought to an end the employment contract dated 17th August 2012 (which forms the basis of this application) and by extension the master and servant relationship between him and the respondent. The respondent then submitted that the applicant’s employment contract dated 17th August 2012, same having being terminated, cannot be used as basis for any proceedings be it legal or quasi-legal thus rendering the applicant’s application dated 29th September 2016 a mere academic exercise. That the Court has been enjoined to deal with live issues and not speculative and academic ones, citing Adelaja v. Alade [1999] 6 NWLR (Pt. 608) 544 SC at 563. The respondent concluded by urging the Court to refuse this application, and dismiss it with substantial cost.

THE APPLICANT’S REPLY ON POINTS

In reply to the respondent’s argument, the applicant submitted that the respondent has misconceived the legal implication of the facts which gave rise to the applicant’s Originating Motion. That the respondent’s legal arguments in support of the counter-affidavit, being borne of that misconception, are untenable, and ought to be discountenanced in its entirety by this Court. Citing paragraphs 4 and 5 of the applicant’s further affidavit in answer to the respondent’s counter-affidavit, the applicant submitted that his employment in the respondent did not terminate on 30th April 2015. That subsequent to the document annexed as Exhibit DG1 to the counter-affidavit, the respondent through its Chairman, Mr Tunde Ayeni, requested for a copy of the applicant’s contract of employment vide an e-mail to the applicant dated 19th June 2015, and that the applicant had by an email of 16th June 2015 updated the respondent’s Chairman, Mr Tunde Ayeni, with various developments in relation to the respondent’s Ogogoro Island Development. That this was followed by the respondent’s Chairman’s response email of 16th June 2015 communicating the respondent’s decision to discuss with the applicant on resumption of work. Further to the foregoing, that the applicant continued to discharge the functions and responsibilities of his employment and provided periodic reports to the respondent, one of which was the “DSIS April Expenditure” provided by the applicant vide the e-mail of 5th May 2016. Also, that the respondent continued to acknowledge responsibility for the payment of salaries, rent and service charge due to the applicant’s residence by approving the internal memo dated 10th November 2015 by which the applicant forwarded an invoice for the payment of annual service charge due on the applicant’s residence.

The applicant went on that that the respondent’s argument that the employment contract has been terminated is premature at this stage, and same ought not to be considered at the hearing of the Originating Motion. That the respondent’s allegation (that the employment contract of 17th August 2012, which regulates the employment relations of the parties, and contains the arbitration clause, has been terminated) by its very nature amounts to a dispute arising from the contract, and ought to be reserved for due determination by the sole arbitrator pursuant to the arbitration clause, citing section 12(1) of the Arbitration and Conciliation Act Cap A18 LEN 2004, which provides that an arbitral tribunal shall be competent to rule on questions pertaining to its own jurisdiction and on any objections with respect to the existence or validity of an arbitration agreement. That the mandate of the arbitration pursuant to Article 22.3 of the employment contract of 22nd August 2012 includes the determination of the respondent’s objection, to wit: the alleged ‘termination’ of the employment Contract, urging the Court to so hold.

The applicant continued that assuming but without conceding that his employment contract was by any means terminated, the “termination” in itself does not void or invalidate the arbitration clause accompanying the contract. That an arbitration clause in a written contract is quite distinct, independent, and severable from all the other terms of the contract. That it is settled law that an arbitration clause survives the main contract under the principle/doctrine of severability or autonomy of the arbitration agreement. That the arbitration clause, though is a part of the agreement, is regarded as a separate agreement, and survives the main agreement, citing NNPC v. Klifco (Nig.) Ltd [2011] 10 NWLR (Pt. 1255) 209 SC and Heyman v. Darwins Ltd [1942] AC 356 at 373 as well as section 12(2) of the Arbitration Act, which provides that for purposes of subsection (1) of this section, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract and a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

The applicant proceeded that Oyedele v. LUTH [1990] 6 NWLR (Pt. 1550) 194 at 199, NNPC v. ldoniboye-Obu [1996] 1 NWLR (Pt. 427) 655 at 676 and Adelaja v. Alade [1999] 6 NWLR (Pt. 608) 544 at 563 cited by the respondent do not apply to the facts and circumstances of the applicant’s application. That Oyedele v. LUTH and NNPC v. ldoniboye-Obu addressed the legal question of ‘termination of employment’, while Adelaja v. Alade dealt with issues considered academic by the Court. Clearly, that these authorities are not relevant to the present application, hence they ought to be discountenanced. That the applicant is seeking an order of Court appointing an arbitrator for the parties in respect of the dispute arising from the subject contract, and nothing more, urging the Court to so hold. That this Court has full power and jurisdiction to appoint an arbitrator for the parties. The Application of the Applicant is properly made before this Court, the respondent having been given sufficient notice and time to nominate an arbitrator but it refused to do so. That the appropriate remedy in the circumstance, therefore, is the order of Court appointing an Arbitrator for the parties, citing Royal Exchange v. Bentworth Finance [1976] 10 NSCC 648 SC at 657, which held that where a party refuses within a given time after due notice to have an arbitrator appointed, the Court has full power and jurisdiction to appoint an arbitrator on an application properly made by the party who has served such notice.

Lastly, the applicant submitted that unless a contrary intention is expressed in a contract, an arbitration agreement shall be irrevocable except by agreement of parties or by leave of the Court or Judge, referring to section 2 of the Arbitration Act. That in the absence of an express agreement of the parties to revoke the arbitration agreement, and in the absence of any application before the Court for leave of Court to revoke the arbitration agreement, the Court should declare same irrevocable. In conclusion, that the answer to the respondent’s sole issue for determination by this Court is in the affirmative; there being no inhibiting factor whatsoever, disentitling the applicant from the grant of the application.

COURT’S DECISION

Two issues present themselves for resolution: the first is the issue of the competence of this suit raised by the Court; and the second is the merit of the applicant’s case should the Court hold that the suit is competent. In a sense, the two issues are linked if the sense in which the Court raised the issue of competence is raised, which is whether the Arbitration and Conciliation Act applies to this Court as to permit the applicant file his action under it in this Court. I do not know whether the respondent really got this point raised by the Court; for in addressing the issue of competence, it left what the Court raised and addressed its own issue of competence. The talk by the respondent that this suit is incompetent because Order 3 Rule 7(1) of the NICN Rules 2017 enjoins a party to a suit who intends to move the Court to take any action touching on or concerning or in respect of a matter already before the Court either as Complaint, Originating summons or Appeal, to do so by Motion on Notice, even when Order 3 Rule 1(1) provides for originating motions as one of the means in which an action may be commenced, is to confuse a motion on notice and an originating motion. An originating motion is a motion (always on notice) that commences an action, while a motion on notice is that process through which a Court is moved to take any action touching on or concerning or in respect of a matter already commenced before the Court. In other words, while an originating motion is also a motion on notice, not all motions on notice are originating motions (processes). The originating motion as an initiating process fits perfectly well within the definition of the phrase “originating process” in Order 1 Rule 10(2) of the NICN Rules 2017, which is that an originating process means a complaint or originating summons or any other court process(es) by which a suit or action is initiated before the Court. Even Order 3 Rule 1(1) acknowledges that an action may be commenced “by any other means that may be prescribed by these Rules, Act or Law in force in Nigeria”. Within the structure of the NICN Rules, actions for judicial review and contempt readily come to mind as examples of actions that may be commenced by originating motions, which also qualify as motions on notice. See respectively Orders 48 and 63 of the NICN Rules 2017. I do not accordingly agree with the submissions of the respondent in that regard. The said submissions are hereby discountenanced.

Also rejected is the argument of the applicant that because he filed this suit under the 2007 Rules of the Court, the matter must be decided under the said NIC Rules 2007. Order 1 Rule 8(1) of the NICN Rules 2017 provides that “when an action has been filed prior to these Rules and no further step has been taken than filing, subsequent steps in the proceedings shall be under these Rules”. By “these Rules’ is meant the 2017 Rules of this Court, not, say, the 2007 Rules.

On the exact issue of the competence of the suit as raised by the Court, the respondent was silent. The closest the respondent came to a submission on the issue was its statement that section 7(2)(B) of the Arbitration and Conciliation Act relied on by the applicant cannot activate the jurisdiction of this Court as far as commencing an action is concerned. Nothing more was said by the respondent other than reiterating its argument as to non-compliance with Rules of Court. On the issue of competence of the suit as raised by the Court, I am left with no other submission but the applicant’s. Now, on the face of the originating motion, the applicant made it very clear what the originating motion is about. In his words, the suit is:

In the matter of an application by Giuseppe Francesco E. Ravelli for an order of Court appointing an arbitrator

And

In the matter of the Arbitration and Conciliation Act, Cap A18 LFN 2004

This fact is even reflected in the sole issue the applicant submitted for determination i.e. whether the applicant deserves the grant of the Court’s discretionary power appointing an arbitrator for the parties pursuant to section 7(2) of the Arbitration and Conciliation Act (ACA) and Articles 6 and 8 of the Arbitration Rules.

The argument of the applicant is that the jurisdiction of this Court to entertain an application to appoint an arbitrator for the parties is pursuant to section 7(1) and (2)(b) of the Arbitration and Conciliation Act (ACA) 2004. For the applicant to make this argument, I do not know if he understood that that is the very question the Court raised: whether the Arbitration and Conciliation Act itself applies to this Court as to warrant the applicant filing this suit under it. Arbitration in Nigeria is governed at two levels by two separate laws. The first is arbitration in its general form often termed commercial arbitration which is regulated by the Arbitration and Conciliation Act 2004, the law under which the instant suit was filed. The second is that, for instance, in relation to labour disputes which is regulated by the Trade Disputes Act (TDA) Cap. T8 LFN 2004, an Act specifically listed in section 254C(1)(b) of the 1999 Constitution as one of the Acts over which this Court has exclusive jurisdiction. The two forms are treated separately because under section 12 of the TDA, “the Arbitration and Conciliation Act shall not apply to any proceedings of an arbitration tribunal appointed under section 9 of this Act or to any award made by such a tribunal”. This provision may have been specifically made within the context of trade disputes, but it does not take away the tenor that the Arbitration and Conciliation Act itself was not meant to apply to labour/employment disputes. It is not in dispute that the Arbitration and Conciliation Act itself applies only to commercial disputes.

The long title/explanatory note to the Arbitration and Conciliation Act 2004 states:

An Act to provide a unified frame work for the fair and efficient settlement of commercial disputes by arbitration and conciliation; and to make applicable the Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or in any contracting State arising out of international commercial arbitration.

The fact that the ACA 2004 applies only to commercial disputes has been stressed by case law authorities. For instance, in Maritime Academy of Nig. v. AQS [2008] All FWLR (Pt. 406) 1872 at 1890, it was held that by section 43, the provisions of Part III of the ACA 2004 shall apply only to international commercial arbitration and conciliation; and Compagnie Generale de Géophysique v. Etuk [2003] LPELR-5516(CA); [2004] 1 NWLR (Pt.853) 20 held that the ACA deals with domestic commercial arbitration as well as with international commercial arbitration.

The interpretation section of the ACA 2004 reinforces the point being made here. In that regard, section 57(1) of ACA 2004, the interpretation section, provides thus:

“arbitration” means a commercial arbitration whether or not administered by a permanent arbitral institution;

“commercial” means all relationships of a commercial nature, including any trade transaction for the supply or exchange of goods or services, distribution agreement, commercial representation or agency, factoring, leasing, construction of works, consulting, engineering, licensing, investment, financing, banking, insurance, exploitation agreement or concession, joint venture and other forms of industrial or business co-operation, carriage of goods or passengers by air, sea, rail or road;

“court” means the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court;

“Judge” means a Judge of the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court;

The TDA stipulates that the ACA does not apply to trade disputes, a fortiori suggesting that the ACA itself does not apply to labour/employment disputes ; and the ACA itself provides that it applies to commercial disputes. The services talked of in the definition of commercial is “trade transaction for the supply or exchange of…services”. In other words, the services are qualified by the words “trade transaction for the supply or exchange of…” Labour or employment services are not necessarily supplied or exchanged in trade transactions. So what do we have here? It is that the ACA does not apply to trade disputes, nay labour/employment disputes, and the ACA itself applies only to commercial disputes i.e. disputes arising from “trade transaction for the supply or exchange of…services”, which category does not cover all labour/employment transactions and so must be read to be excluded. I so find and hold.

In any event, section 57(1) of the ACA in defining “court” and “Judge” is very specific in restricting them to “the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court”. The argument of the applicant here is that upon a purposeful reading of section 254C(1)(k) of the Constitution, section 4 of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010, which amends section 240 of the 1999 Constitution, and section 57 of ACA itself, it will be reasonable to expect that a Court faced with a situation like this present one, will read the words “National Industrial Court” into the provisions immediately after the words “Federal High Court” in section 57 of ACA to confer on the National Industrial Court similar powers conferred on the Federal High Court and the High Court of a State, on the appointment of arbitrators by the Court. As ingenious as this submission is, I find it misleading. Section 240 of the 1999 Constitution as amended deals with the appellate jurisdiction of the Court of Appeal regarding the decisions of the Courts listed therein. So the fact that the NIC is added after the Federal High Court in that section does not infer that in all statutes (such as section 57(1) of the ACA 2004) where the Federal High Court is mentioned, the NIC must necessarily be mentioned after it. The reference to section 254C(1)(k) of the 1999 Constitution by the applicant is equally misleading especially when the applicant submitted that the reference to “such other jurisdiction as may be conferred upon it by an Act of the National Assembly” and “matters incidental thereto” in section 254C(1)(k) of the 1999 Constitution must be read to mean that the ACA 2004 grants additional jurisdiction to this Court. I already held that the ACA does not apply to labour/employment disputes. This means that it could not have, and so cannot be read to have, added any jurisdiction on this Court. I do not to accordingly find any merit in the argument of the applicant in that regard.

I must stress the point here that the Arbitration and Conciliation Act itself recognizes the fact that it does not cover all issues. In other words, certain issues may fall outside of its remit. For instance, certain issues may not form part of an arbitration agreement as where they will violate the Constitution or any other statutory enactment; nor could they be submitted to arbitration tribunals. Indeed, some issues may be submitted to arbitral tribunals only in accordance with the provisions of the Constitution or other laws of the land where the agreement was entered into or governs the arbitral agreement. See Statoil (Nigeria) Ltd & anor v. FIRS & anor [2014] LPELR-23144(CA). In this regard, section 35 of the ACA 2004 provide thus:
Extent of application of this Act to arbitration

This Act shall not affect any other law by virtue of which certain disputes –

(a) may not be submitted to arbitration; or

(b) may be submitted to arbitration only in accordance with the provisions of that or another law.

The Trade Disputes Act, for instance, is such a law which precludes the application of the ACA. In this wise, and for the reasons given, the argument of the applicant that the 1999 Constitution and the NIC Act 2006 did not exclude the applicability of the ACA to labour and employment disputes cannot hold ground and so is hereby rejected. Equally not sustainable is the argument of the applicant that the ACA is an Act of the National Assembly and going by the wordings of section 254C(1)(k) of the 1999 Constitution it is reasonable and logical to submit that the ACA was contemplated as an Act of the National Assembly that may confer jurisdiction on the National Industrial Court of Nigeria. An Act that deals with only commercial disputes to the exclusion of labour/employment disputes cannot be said to have been contemplated as one conferring jurisdiction on the NIC under section 254C(1) of the 1999 Constitution.

The applicant argued that he cannot go to the Federal High Court or the High Court of the State to seek the reliefs sought herein because these Courts do not have jurisdiction to entertain labour and employment matters, and then urged the Court to give effect to the provisions of the ACA in this suit to prevent a situation of helplessness that may be foisted on the applicant who will not be able to get any Court to appoint an arbitrator to arbitrate over the parties’ dispute. The applicant foisted on himself the position of the helplessness that he complains of. Did the applicant file a complaint against the infractions he complains of against the respondent and was not heard? The NIC as rightly argued by the applicant has an ADR centre, even though the ADR centre conducts only mediation. How can the applicant say that it is helpless when it is the architect of his helplessness? On the whole, I do not see any merit as to the argument of the applicant on the issue of the competence of this suit. The ACA 2004 does not apply in this Court; as such this Court cannot make any order as to give effect to it or its application. I so find and hold. This suit is accordingly incompetent as filed; and I so find and hold. It is liable to be struck out; and it is so struck out.

It is needless to go into the merit of the suit as what the applicant wants from this Court is to apply the ACA 2004 by ordering the appointment of an arbitrator for him and the respondent. Clause 22.3 of the employment contract the applicant relies on specifically stipulates that any dispute between the parties is to be resolved by arbitration in accordance with the provisions of the ACA 2004 and its rules by a sole arbitrator. The applicant also relied on section 7(2) of the ACA 2004 and Articles 6 and 8 of the arbitration Rules for his prayer. The Court specified in section 7(2) of the ACA 2004 is not this Court, but the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court. Since this Court is not contemplated by the ACA 2004, this Court cannot act in virtue of it. This being the case, I reiterate the point I made, that this suit is incompetently before this Court.