MEDICAL AND HEALTH WORKERS UNION OF NIGERIA v. DR. ALFRED EHIGIEGBA
(2018)LCN/11628(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of June, 2018
CA/B/401/2013
RATIO
JURISDICTION OF COURT
To begin with, in order to determine the extent of a Court’s jurisdiction, it is now settled that the proper place to look is the enabling law setting up the Court and conferring it with jurisdiction. per FREDERICK OZIAKPONO OHO, J.C.A.
REPETITION OF WORDS
It is now settled principle of interpretation of statutes that the law maker does not use any words in vain. The argument here is that the repetitive use of the words; connected with, related to, pertaining to, arising from, incidental thereto, or connected therewith used in Section 254(1)(a) of the Nigerian Constitution, 1999 as Amended were not used in vain as the law makers must have meant their use to emphasize and reiterate the wide jurisdiction of the National Industrial Court over all issues arising from employment and labour disputes regardless of the nature of the claims or reliefs in the suit. per FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
MEDICAL AND HEALTH
WORKERS UNION OF NIGERIA Appellant(s)
AND
- ALFRED EHIGIEGBA Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Edo State High Court of Justice sitting in Benin City, Edo State, which ruling was delivered on the 11th day of July, 2013 wherein the learned trial Judge overruled a challenge to the Courts jurisdiction filed by the Appellant. As Claimant, the Respondent sued three (3) Defendants including the Appellant for the publication of a libelous letter written by one Douglas Uhunmwangho, Esq., whose name was struck out by the Court below on the ground that he had merely acted as a Counsel when he wrote the said Publication.
At paragraph 21 of the Respondents Statement of Claim as Claimant, he claimed as follows;
WHEREFOR the Plaintiff claims against the Defendants jointly and severally.
1. The sum of 100,000,000.00 (One Hundred Million Naira Only) being general damages for falsely and maliciously publishing and disseminating of and concerning the Plaintiff in the letter dated the 27th day of October, 2003 and addressed to the Head of Civil Service of the Federation, other Heads of Government Institutions and the general public the following defamatory words, to wit: –
Sadly and so soon sir, we wish to bring to your notice that Professor Austin Obasoham the dismissed CMD is still administering the hospital by proxy. The acting CMD who had always been the formers stooge has not stopped to be a willing and ready instrument in the hands of the former CMD in their voyage of fraudulent enrichment of themselves and inept and mal-administration. A case in hand sir, as we are not talking in vacuum, is an internal memo dated 22nd of September 2003 with Ref No. CMD/CONF/84/VOL. VIII/93 and signed by one Jim Uwadiae who is the Personal Assistant to the former CMD. It was for: A three-day traveling of allowance for the former CMD. A three-day traveling allowance for the driver. A three-day traveling allowance for the Security. The sum of 8,000.00 for fuelling official vehicle for: the journey and other expenses. This memo was approved even though the acting CMD knew quite well that the former CMD for whom the memo was raised has been dismissed well before then (we hereby attached a photocopy of the said memo for your perusal).
This is one of the very many means the acting CMD and other staff had deviced to continually unlawfully release the funds of the Hospital to the dismissed CMD. The question now sir is does a person who had been dismissed from the service of an organization still entitled to remunerations or allowances from that organization subsequent to his dismissal The obvious is the answer – No but we wonder why even after the dismissal of the former CMD the present management still gives him albeit fraudulently, the funds of the hospital… the former CMD, Professor A. O. Obasoham was paid his September salary and allowances through other fraudulent methods despite the fact that he is no longer in the service of UBTH. Furthermore, two drums of diesel oil were given to the dismissed CMD, Professor A. O. Obasoham on the 17th of September, 2003 and one more drum of diesel oil was also given to him on the 22nd of September, 2003. All these were subsequent to his dismissal”.
2. A retraction of the said libelous publication with an apology published, in two national daily newspapers in Nigeria, namely, the Guardian and the Vanguard.
- An Order of perpetual injunction restraining the Defendants, by themselves, servants, agents, or privies from further publication, reproduction and dissemination of the said, libelous, publication or similar libel.
The Appellant, vide a motion on notice dated the 3rd day of May, 2013 and filed on the same date at the Court below prayed for an order striking out the suit of the Respondent on the grounds of jurisdiction and other grounds to be found at pages 64 to 65 of the records and reproduced here as follows;
GROUNDS UPON WHICH THIS APPLICATION ARE FOUNDED;
1. The addresses of the 1st Defendant/Applicant that was used is outside the jurisdiction of this Court and the 1st Defendant has been denied the right of fair hearing by the failure of the Claimant to serve the Court processes on the 1st Defendant/Applicant.
2. The University of Benin Teaching Hospital Benin City as indicated in the Originating Court process for address of service dated 12th day of May 2006 is not a party to this suit.
3. The 2nd Defendant whose name appeared in the Court processes is not a juristic person known to law as there is nobody known in law as Senior Staff Association of Universities Teaching Hospitals and Research Institutes {SSAUTHRIAI} which fact is known to the-Claimant and his Counsel.
4. Proper parties are not before the Court.
5. The National Industrial Court by virtue of the Third Alteration Act 2010 now has jurisdiction to entertain any civil cause or matters affecting Trade Unions and any matter incidental thereto or connected therewith.
6. The National Industrial Court now have all the powers of the High Court to deal with any tort affecting or connecting or arising from activities of trade Union including the 1st Defendant/Applicant whose address is not University of Benin Teaching Hospital but in Abuja a place outside the jurisdiction of this Court.
In its Ruling of the said 11-7-2013, the Court below struck out the name of the 3rd Defendant on record to wit: Senior Staff Association of Universities Teaching Hospital and Research Institutes {SSAUTHRIAI} on the ground that it is not a juristic personality that can be sued but refused to decline jurisdiction to hear the suit against the Appellant. It is therefore against this Ruling that the Appellant has brought this Appeal vide his Notice of Appeal filed on the 24-7-2013. There are three (3) Grounds of Appeal filed, which are reproduced here under but without their particulars as follows;
GROUNDS OF APPEAL;
1. The lower Court erred in law when it ruled that it has jurisdiction to entertain the Claim of the Respondent.
2. The lower Court erred in law when it ruled that it has jurisdiction to entertain the Claim of the Respondent.
3. The lower Court erred in law when it ruled that it has jurisdiction to entertain the Claim of the Respondent.
ISSUES FOR DETERMINATION;
Two (2) issues were nominated by the Appellant for the determination of this Appeal as follow;
1. Having regard to the Amendment to the 1999 Constitution in the Third Alteration Act 2010, which gives; exclusive jurisdiction to National Industrial Court to entertain any civil cause or matter arising from work place or any matter incidental thereto or connected therewith, whether the claim of the Respondent which arose from workplace as is presently constituted against a Registered Trade Union is a civil cause or matter tri-able by the National Industrial Court as envisaged by the Third Alteration of the 1999 Constitution.
- Whether a Registered Trade Union sued in its registered name can be served other than the registered office of the union which is not a party to the suit.
On the part of the Respondent four (4) issues, i.e., two issues more than those of the Appellant and from three Grounds of Appeal were nominated for the determination of this Appeal. This issue shall be addressed at the appropriate time in the course of this judgment going forward. Nevertheless, the issues of the Respondent are as follows;
1. Having regard to the bundle or aggregate of facts recognized by law as giving the Claimant a substantive right to make a claim against the appellant whether it is the National Industrial Court that has Jurisdiction to hear this matter
2. Whether from the face of the letter dated 27th October, 2003 which is the libelous letter written and published, the said Douglas Uhunagho Esq., had the mandate of the Appellant to act on their behalf
3. Whether having not been granted the mandate to write the said letter dated the 22nd October, 2003, the Joinder of the Appellant was for them to indemnify the said Douglas Uhuangho Esq., against the damage that will be awarded against him by the lower Court
4. Whether the non-service of all the Court processes in this suit on the Appellant at its branch office at the University of Benin Teaching Hospital instead of its headquarters is irregular
The observation of this Court on the number of issues nominated by the Respondent brings to mind this Court and the apex Courts admonition on the issue of the formulation of more issues than are required for the determination of a matter on Appeal. The Supreme Court has stated on several occasions that it abhors the proliferation of issues where only a few issues would have determined the Appeal. OGBUAGU, JSC in G. K. F. INVESTMENT NIG. LTD vs. NIGERIA TELE-COMMUNICATIONS PLC (2009) 15 NWLR (PT. 1164) 344 put it simply this way:
I need to stress that this Court discourages the proliferation of issues.
MUSDAPHER, JSC (as he then was) was more direct in the case of OMEGA BANK (NIG.) PLC vs. O. B. C. LTD (2005) 8 NWLR (PT. 928) 547 when he stated thus:
This Court has on several occasions condemned the proliferation of issues in briefs of arguments.
It is not the number of issues for determination formulated that determines the quality of brief or that determines the success of an appeal.”
EDOZIE, JSC was rather terse in his own observations on the issue when he said in the case of IBRAHIM vs. OJOMO (2004) 4 NWLR (PT. 862)89 as follows:
Prolix or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issues to trifles. Appeals are not won on large number or quantity of grounds of Appeal but on the quality of the content of the Grounds of Appeal and issues.
There are several other decided cases on this issue and the tendency to go on and on in referring to these cannot be ruled out. As it has to do with the instant Appeal, the Respondent who has chosen to be more enthusiastic than the Appellant in raising issues, should have also filed its own Appeal or better still Cross-Appealed so that it can be at liberty to raise as many issues as possible. A situation whereby four (4) whole issues are nominated from three (3) Grounds of Appeal is clearly unacceptable. To this end, the issues raised by the Appellant shall be the basis of this Courts analysis in the resolution of this Appeal.
The Appellants Brief of Argument dated the 11-10-2012 was settled by OLAYIWOLA AFOLABI ESQ., and filed on the same date was deemed properly filed on the 24-4-2018 while the Respondents Brief of Argument dated the 18-6-2015 and filed on the 23-9-2015 but deemed filed on the 24-4-2018 was settled by IKPONMWOSA OSUNDE ESQ., At the hearing of this Appeal on the 24-4-2018 learned Counsel adopted their respective Briefs of Argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL FOR THE PARTIES; APPELLANT;
ISSUE ONE;
Having regard to the Amendment to the 1999 Constitution in the Third Alteration Act 2010, which gives exclusive jurisdiction to National Industrial Court to entertain any civil cause or matter arising from work place or any matter incidental thereto or connected therewith, whether the claim of the Respondent which arose from workplace as is presently constituted against a Registered Trade Union is a civil cause or matter tri-able by the National Industrial Court as envisaged by the Third Alteration of the 1999 Constitution.
In arguing this issue, learned Appellants Counsel referred Court to Section 254C (1) of the Third Alteration Act of the 1999 Constitution of Nigeria and which Counsel took time to reproduce as follows:-
“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 conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; emphasis ours.
(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 there from;
(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 workplace;
{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.
In the submissions of Counsel, he stated that the claim of the Respondent arose from matters arising from workplace as captured by the Third Alteration Act 2010 of the Constitution of Nigeria, 1999 and to graphically show that it happened in the workplace to wit: the University of Benin Teaching Hospital (UBTH), Counsel drew attention of this Court to page 2 of the records containing the endorsements of the Respondents claims at the Court below, which has been reproduced in the preceding portions of this judgment and no longer necessary to done here again.
Suffice this to state, however, Counsel enthused, that a critical examination of the said claim of the Claimant at the Court below, but now the Respondent herein will reveal that the issue of libel, which Respondent now alleges against the Appellant, a Registered Trade Union is a matter which occurred in the workplace as envisaged in the Third Alteration Act 2010 of the 1999 Constitution of Nigeria (as Amended) and not matters, which happened in a private house or elsewhere. For the purposes of emphasis, Counsel drew attention to the relevant section of the law thus:
Section 254(c) (1) (a):
Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from work place, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.
In his further argument on the issue, he stated that the complaints of the Respondent against the existing Appellant are matters arising from the working place of a Registered Trade Union to wit: University of Benin Teaching Hospital (UBTH). According to Counsel, all the Appellant was credited to have written arose from a work place environment when the Respondent was the Acting Chief Medical Director (CMD) of University of Benin Teaching Hospital (UBTH).
The submission of Counsel on the issue is that the question of jurisdiction of Court is purely statutory, which can only be determined in the light of the enabling statute and the claims put before the Court. He posited that where a statute has identified a Court and donated to it exclusive jurisdiction over a particular cause of action, the jurisdiction of other Courts not similarly mentioned would completely be ousted. Counsel cited the case of SCC NIG LTD vs. SEDI (2013) 1 NWLR (PT. 1335) 230 @ 241 PARA C and 244 PARA E; where this Court per EKO, JCA (as he then was) at page 246 PARA C-D stated as follows:-
“Only the Constitution can alter the unlimited jurisdiction it donated to the High Courts of the State and Federal Capital Territory, Abuja, in Sections 257 and 272 thereof.
The status quo has now been altered with the Third Alteration to the Constitution which became effective from 4th March, 2011. Section 254C {a} of the Constitution, 1999 as amended, has now vested in the National Industrial Court jurisdiction to the exclusion of any other Court in civil causes and matters-relating to industrial relations and matters arising from workplace.
In his further argument on the issue Counsel submitted that in determining the question of jurisdiction it is the examination of the Statement of Claim together with the enabling statute that will lead the way. He said in addition that the moment the reliefs sought comes within the jurisdiction of the Court as adumbrated by the facts, the Court would assume. Counsel cited the cases of ONWUDIWE vs. FRN (2006) 10 NWLR (PT. 988) 382 @ 425-428; OKOLO vs. UBN LTD (2004) (PT. 859) 87 @ 108; ACTION CONGRESS vs. INEC (2007) 18 NWLR (PT. 1065) 50; MOBIL PROD. (NIG) UNITED vs. MONOKPO (2003)18 NWLR (PT. 852) 346 @ 434-435. The submission of Counsel finally, under this issue is that the National Industrial Court now has all the powers to deal with any tort affecting or connecting or arising from the activities of trade Union such as the Appellant to wit; Medical and Health Workers Union of Nigeria and more so when the activities complained about took place in a workplace. He urged this Court to allow this appeal on this ground. In his closing contention of the issue Counsel stated that the issue of trade disputes raised by the learned trial judge has nothing to do with the motion filed by the Appellant as there was nowhere the Appellant based its argument at the Court below on Trade Dispute.
ISSUE TWO;
Whether a registered trade Union sued in its registered name can be served other than the registered office of the union which is not a party to the suit
The submission of learned Appellants Counsel on this issue is that the issue of service of Court processes is fundamental to the validity of an adjudicatory process and that failure to serve is a failure which goes to the root of the case. He added that service of process is what confers competence and jurisdiction on the Court seised with the hearing of the matter. He cited the case of S.G.B.N. LTD vs. ADEWUNMI (2003) 10 NWLR (PT. 839) 526.
In his argument Counsel stated that from the originating process, it is clear that the Appellant is a registered trade union and vide the motion filed by the Appellant that gave rise to this Appeal the Appellant gave its registered official address as No. 12, Aba Close, Off Ogbomogho/Lokoja Street, Area 8, Garki-Abuja. Counsel referred this Court to page 67 of the records and contended that the Respondent as Claimant, rather than served the Appellant at the registered official address as expected chose to serve at the Local branch of the Appellant who is not a party to the suit. He drew the Courts attention to the fact that the University of Benin Teaching Hospital (UBTH) served with the process is not a party to the suit filed by the Respondent. On the fundamental nature of service of processes Counsel cited the following cases; MANAGEMENT ENTERPRISE LTD vs. OSHISANYA (1987) 2 NWLR (PT. 55) 179; SCOTT EMUAKPOR vs. UKAVBE (1975) 12 SC 41; OKEREKE vs. EJIOFOR (1996) 3 NWLR (PT. 434) 90.
On the law that regulates service on registered trade unions, Counsel referred Court to the Trade Union Act, which he said is a Federal Enactment and Section 20 (1) of the Trade Union Act states as follows: –
Every Trade Union shall have a registered office to which all communication and notices may be addressed.”
According to learned Counsel the law did not state that the branch office of a registered union should be served with notice of Court processes meant for a registered union, otherwise that it would have been so stated. In the circumstances of this case, Counsel urged this Court to allow this Appeal.
RESPONDENT;
ISSUE ONE;
Having regard to the bundle or aggregate of facts recognized by law as giving the Claimant a substantive right to make a claim against the appellant, whether it is the National Industrial Court that has jurisdiction to hear this matter
The submission of learned Respondents Counsel began with the definition of what a cause of action is all about. He defined a cause of action as a bundle or aggregate of facts recognized by law as giving a Plaintiff a substantive right to make a claim against the relief or remedy being sought. According to Counsel for a cause of action to exist the facts relied upon by the Plaintiff or Claimant must be recognized by law as giving rise to a substantive right or remedy capable of being claimed or enforced against the Defendant.
It was argued by Counsel that in order to determine whether a cause of action is disclosed in an action, reference is often made to the Statement of Claim, and for this, he cited the cases of TAKUM LOCAL GOVERNMENT vs. UNITED COMMUNITY BANK NIGERIA LIMITED (2003) 16 NWLR (PT. 846) 288 AT 300 PARAS D-F AND F-G; THE UNION BANK OF NIGERIA PLC vs. UMEODUAGU (2004) NWLR (PT. 890) 352 AT 355 – 368 RATIOS 1 TO 3.
Learned Counsel drew attention of the records at pages 1 to 7, which contains the original writ and statement of claim in this suit and pages 98 to 104 which contains the letter of libel and the exhibits attached to the said letter dated 27th October, 2003, which was admitted as Exhibit ‘B’ at page 45 of the Record of Appeal and submitted that from the bundle or aggregates of facts placed before Court below the High Court hearing this suit has jurisdiction to entertain same. He cited the case of ONUEKWUSI & 8 ORS vs. THE REGISTERED TRUSTEE OF THE CHRIST METHODIST ZION CHURCH (2011) 6 NWLR (PT. 1243) 341 AT 359-360 PARAS E-F.
In his arguments, Counsel submitted that from a very careful examination of the subject matter in this suit, which is the libelous letter dated the 27th October 2006, that this suit or action has the required competence to be heard by the High Court on the ground that there is accrual or existence of a cause of action and also that the Claimant has the locus standi to institute this action. He cited once again the case of ONUEKWUSI & 8 ORS vs. THE REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH (SUPRA) AT PAGE 359 PARAS E – F, PAGE 361 PARAS E – G. Counsel urged this Court to disregard the Appellants Counsel submission that it is the National Industrial Court that has the sole jurisdiction to entertain the claim in this suit.
ISSUES TWO AND THREE;
Whether from the face of the letter dated 27th October, 2003 which is libelous, the said Douglas Uhuangho Esq., had the mandate of the Appellant to act on his behalf
Whether having not been granted the mandate to write the said letter dated the 27th October, 2003, the Joinder of the Appellant was for them to indemnify the said Douglas Uhuangho Esq., against the damages that will be awarded against him by the lower Court
The submission of Counsel is that the Position of the law is that before an Advocate can be held to be lawfully and properly performing his duties to his client, the mandate of his client must always remain intact. Counsel cited the case of NNPC vs. TRINITY INS. BROKERS AND BROS (2003) NWLR (PT. 825) 384 AT 395, PARAS D – E. It was further submitted that a client-solicitor relationship comes into existence where a legal practitioner acts for a person in a Professional Capacity… See the case of IKEME vs. ANAKIWE & ANOR (2003) 10 NWLR (PT. 829) 548 AT 568 PARAS C-F.
Counsel referred this Court to the said letter of libel dated the 22nd October, 2003, which is at pages 98 to 104 of the Record of Appeal and also paragraph 2.03(a) where the said letter was reproduced for emphasis and submitted that perusing the entire letter from its beginning to its conclusion shows nowhere that the said Douglas Uhuangho Esq., stated that he had the mandate of the Appellant to write the said letter. Counsel therefore submitted that the said Douglas Uhuangho Esq., was not acting for the Appellant in a Professional Capacity.
Counsel urged this Court to reject Appellants contention that the said letter dated 27th October, 2003 was written on behalf of the Appellant.
With regards to issue three, Counsel submitted that the position of the Law is that any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who, or would if sued have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise. His argument is that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought Counsel referred this Court to the laws of Bendel State of Nigeria now applicable in Edo State Vol. VI Chapter 164 Torts, page 3891, Part 5, Section 14 (c).
Against the backdrop of this argument, Counsel referred to the letter dated 27th October, 2003 which is at pages 95 to 104 of the Record of Appeal and also paragraph 3 of this Brief of Argument where the said letter was reproduced and submitted that the joinder of the Appellant was for them to indemnify the said Douglas
Uhuangho Esq., against any damages that will be awarded against him at the Court below, since there was nothing to show in the said letter dated the 22nd October, 2003 that he the said solicitor had the mandate of the Appellant to write the said letter.
Counsel further submitted that to further show that the said Douglas Uhuangho Esq., did not have the mandate of the Appellant to write the said letter, Professor A. O. Obasohan whom he alleged was dismissed from the University of Benin Teaching Hospital as at 11th September, 2003, is still earning his salary till today. He referred Court to pages 27 to 28 of the record of Appeal and also pages 40 to 42.
ISSUE FOUR;
Whether the non-service of all the Court processes on the Appellant at its branch office at the University of Benin Teaching Hospital instead of its headquarters is irregular
In arguing this issue, Counsel referred this Court to the proof of service at Page 106 of the Record of Appeal and also to the Conditional Memorandum of Appearance filed on 23rd June, 2003 on behalf of the Appellant at Page 108 of the Record of Appeal.
Counsel in addition referred to the Joint Statement of Defence filed on behalf of the Appellant at page 109 of the Record of Appeal. This Court was also referred to the Amended Joint Statement of Defence filed by the Appellant at page 29 of the Record of Appeal. The submission of Counsel thereafter is that the Appellant was rightly served with the Court processes in this suit at their branch office situate at University of Benin Teaching Hospital. According to Counsel these proofs show that the said Court process was received by the Appellant’s branch Vice Chairman at the University of Benin Teaching Hospital.
It was contended that by virtue of the provisions of Section 20 (1) of the Trade Union Act Cap 437 which provides as follows:
“Section 20 (1) every trade union shall have a registered office to which all correspondence and notices, may be addressed.”
That the word; “may” as defined in Black’s law Dictionary with pronunciations sixth Edition at page 979; States that the word “may” is employed to imply permissive, optional or discretion and not mandatory actions or conduct”. According to Counsel the construction of the word “May” when used in a statute may be interpreted as directory or permissive and he further submitted that the intendment of the draftsmen when they used the word may in Section 20(1) of the Trade Union Law is to permit service at the Branch offices of the Trade Union. It was also argued that in the instant case Section 20(1) of the Trade Unions Act Cap 437 does not provide any sanction for breach of service at its headquarters and that in the circumstances the use of the word may in Section 20(1) of the Trade Union Act Cap 437 is directory and not mandatory. He cited the case of RIMI vs. INDEPENDENT ELECTORAL COMMISSION (INEC) & 1 OR (2005) 6 NWLR (PT. 920) 50. Counsel further submitted that the service of all the Court processes in this suit on the Appellant at its branch office at the University of Benin Teaching Hospital is directory and not mandatory.
Another argument of Counsel is that by the provisions of Section 20 of the Trade Unions Act Cap 437, the provisions of Section 97 and 99 of the Sheriff and Civil process law will not apply strictly when serving the Appellant because service at its headquarters under Section 20 of the Trade Union Act is directory and not mandatory. In his further argument, he said that by entering conditional appearance, filing the appellant’s original joint statement of Defence and filing their consequential Amendment of their Joint Statement of Defence and also going into full hearing of the case by cross-examining the claimant after giving evidence in Chief, See pages 43 to 66 of the Record of Appeal, the Appellant waived his right to complain about the non-compliance with the provisions of Sections 97 and 99 of the Sheriffs and Civil process Act. Counsel cited the case of EKANEM & 5 ORS vs. ALOZIE (2013) ALL FWLR (PT. 679) 1194. Counsel finally contended that the Court below was indeed right in respect of the ruling delivered on the 11th July, 2013 where the Court held that it has the Jurisdiction to entertain the suit.
RESOLUTION OF APPEAL
The first issue nominated for the determination of this Court has to do with the Amended 1999 Constitution of Nigeria as it relates to the Third Alteration Act 2010, which gives exclusive jurisdiction to the National Industrial Court to entertain any civil cause or matter arising from work place or any matter incidental thereto or connected therewith. The bone of contention in the instant Appeal, however, relates to the question of whether the claim of the Respondent, which arose from the workplace as is presently constituted against a Registered Trade Union is a civil cause or matter tri-able by the National Industrial Court as envisaged by the Third Alteration of the 1999 Constitution or not.
In his argument in connection with this issue, learned Respondents Counsel drew attention of the Court to the records at pages 1 to 7, which contains the original writ and statement of claim at the Court below and to pages 98 to 104 which contains the letter of libel and the Exhibits attached to the said letter dated 27th October, 2003, which was admitted as Exhibit’B’ at page 45 of the Record of Appeal. Thereafter he contended that from the bundle or aggregates of facts placed before Court below the High Court hearing this suit has jurisdiction to entertain same. He cited the case of ONUEKWUSI & 8 ORS vs. THE REGISTERED TRUSTEE OF THE CHRIST METHODIST ZION CHURCH (2011) 6 NWLR (PT. 1243) 341 AT 359-360 PARAS E-F.
In his further arguments, learned Respondents Counsel submitted that from a very careful examination of the subject matter in this suit, which is the libelous letter dated the 27th October, 2006 that this suit or action has the required competence to be heard by the High Court on the ground that there is accrual or existence of a cause of action and also that the Claimant has the locus standi to institute this action. The Counsel urged this Court to disregard the Appellants submissions that it is the National Industrial Court that has the sole jurisdiction to entertain the claim in this suit.
To begin with, in order to determine the extent of a Courts jurisdiction, it is now settled that the proper place to look is the enabling law setting up the Court and conferring it with jurisdiction. In the case of the National Industrial Court of Nigeria is Section 254(1)(a) of the 1999 Constitution of Nigeria as Amended and Section 7 of the National Industrial Court Act, 2006. It is important to note that Section 254(1)(a) of the Nigerian Constitution, 1999 confers an expansive jurisdiction on the Court to adjudicate on any matter arising from the workplace. The Section provides as follows;
that the jurisdiction of the National Industrial Court shall extend to all matters relating to or connected with any labour, employment, trade Unions, Industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.”
The idea behind this provision is to remove any limitations or obstacles on the categories of claims or reliefs which the Court can entertain arising from workplace or employment issues. However, despite the seeming clarity in the extent of the jurisdiction of the National Industrial Court under the Constitution, there are still a lot of uncertainties in respect of matters which are termed ancillary or connected to the subject matter over which the Court has exclusive jurisdiction. As a result of this position, even the National Industrial Court in a number of cases have been seen to have adopted restrictive interpretation of the provision and have also in a number of instances refused to entertain claims or reliefs outside of strict labour and employment even where such claims are closely linked with labour matters. For instance in the cases of DR. AKINYEMI vs. CRAWFORD UNIVERSITY (2011) 22 NLLR 90; MTS LTD vs. AKINWUNMI (2011) 22 NLLR 30; and OKEKE vs. UBN PLC. (2011) NLLR (PT. 42) 161, which are matters grounded on the tort of defamation of character as in the instant case, the National Industrial Court struck out the claims relating to defamation regardless of the fact that those claims arose from employment disputes.
It is now settled principle of interpretation of statutes that the law maker does not use any words in vain. The argument here is that the repetitive use of the words; connected with, related to, pertaining to, arising from, incidental thereto, or connected therewith used in Section 254(1)(a) of the Nigerian Constitution, 1999 as Amended were not used in vain as the law makers must have meant their use to emphasize and reiterate the wide jurisdiction of the National Industrial Court over all issues arising from employment and labour disputes regardless of the nature of the claims or reliefs in the suit.
Generally, the nature of the dispute between parties and the set of facts giving rise to the dispute should naturally determine whether the National Industrial Court has jurisdiction in a particular matter or not. The tort of defamation arises from the action of a person, which impugns the character of another in the eyes of reasonable members of the public. It is an actionable wrong which depends on a set of factual situations which gives rise to the claim of the claimant as contained in his reliefs. In determining which Court should have 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 claimant’s pleadings. Where the factual situation on which the claim is anchored is one that is based on an employment dispute or matters arising from the workplace, then such a claim falls squarely within the ambit of Section 254(1)(a) of the Constitution, regardless of the reliefs claimed.
In coming into terms with the facts of the instant Appeal, a careful perusal will show that the claims of the
Respondent arose in connection with matters which took place at the workplace as captured under Section 254(1)(a) of the 1999 Constitution of Nigeria as Amended to wit: the University of Benin Teaching Hospital (UBTH). It will be recalled that at page 2 of the records containing the endorsements of the Respondents claims at the Court below, the Respondent as Claimant sued three (3) Defendants including the Appellant for the publication of a libelous letter written by one Douglas Uhunmwangho, Esq., who acted as Counsel for the Appellant and on whose behalf he acted in writing the said allegedly libelous letter. The Respondent had claimed the sum of One Hundred Million (100,000,000.00) Naira Only being general damages for falsely and maliciously publishing and disseminating of and concerning the Plaintiff in the letter dated the 27th day of October, 2003 and addressed to the Head of Civil Service of the Federation, other Heads of Government institutions and the general public.
A careful examination of the factual situation giving rise to the claim of the Respondent as Claimant will readily show that the issue of libel, which Respondent now alleges against the Appellant, who is a Registered Trade Union is a matter, which occurred in the workplace as envisaged by Section 254(1)(a) of the 1999 Constitution of Nigeria (as Amended). Here is a situation in which the Appellant, a Registered Trade Union, hired the services of Counsel to write a Letter complaining about the activities of Professor Austin Obasoham, said to have been dismissed as CMD of the UBTH and was said to still be in charge of the administration of the hospital by proxy. The acting CMD in the said letter was said to be a stooge of the former CMD and has not stopped being a willing and ready instrument in the hands of the former CMD in their voyage of fraudulent enrichment of themselves, whilst running an inept and mal-administration of the Hospital.
If this is not a classic case of an alleged defamatory claim arising from a purely labour and employment relationship arising from the workplace and relating to or connected with any labour, employment dispute as envisaged by Section 254(1)(a) of the Constitution of Nigeria, 1999 as Amended, this Court therefore wonders what else will be.
The Appeal therefore succeeds per force. See the cases of AINABENHOLO vs. EDSU WORKERS FARMERS MULTI-PURPOSE COOPERATIVE SOCIETY & ORS (2015) LPELR -2451 (CA); KEYSTONE BANK LTD vs. OLUKAYODE ABIODUN OYEWALE (2014) LPELR-23612 (CA).
This Appeal has merit and it is accordingly allowed. The Ruling of the Edo State High Court of Justice sitting in Benin City, Edo State delivered on the 11th day of July, 2013 is hereby set aside. Consequently, the matter before the Court below is hereby struck out for want of Jurisdiction. Parties are to bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree for the reasons ably advanced in the lead judgment, that the appeal is meritorious. It is hereby allowed. I subscribe to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read the draft judgment just delivered by my learned brother, Frederick O. Oho, J.C.A.
I am in agreement with the views expressed and conclusion arrived at that the appeal is meritorious and same is accordingly allowed.
Appearances
Olayiwola Afolabi, Esq.For Appellant
AND
Ikponmwosa Osunde, Esq.For Respondent
