MINISTRY OF LOCAL GOVT. & CHIEFTAINCY AFFAIRS (AKWA IBOM STATE) & ANOR v. HON. SYLVANUS P. UDOH & ORS
(2019)LCN/12513(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/C/227/2014
RATIO
INTERPRETATION: MEANING OF TRADE DISPUTE
“I think we are indeed entitled to borrow a leaf from the decision of the Supreme Court in the case of AKAUVE MOSES OSOH & 40 ORS. V UNITY BANK PLC [2013] 9 NWLR [Pt. 1358] 1 @ 38 where the Supreme Court per Chukwuma-Eneh, JSC, defines ‘trade dispute’ to mean any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person. And in the circumstances of the case before the Supreme Court which has bearing on the instant appeal, the apex Court held that the Appellants were no longer employees of the respondent, who was their former employer. In the circumstance, the dispute between the Appellants and the respondent was not a trade dispute. See also N.U.R.T.W. V. OGBODO [1998] 2 NWLR [Pt. 537] 189,; N.U.E.E. V B.P.E. [2010] 7 NWLR [Pt. 1194] 538. Clearly therefore, any issue of jurisdiction in between the National Industrial Court and the instant State High Court has to be predicated on the facts as pleaded in the Statement of Claim.”PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. MINISTRY OF LOCAL GOVT. & CHIEFTAINCY AFFAIRS (AKWA IBOM STATE)
2. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, AKWA IBOM STATE Appellant(s)
AND
1. HON. SYLVANUS P. UDOH
2. HON. AUGUSTINE ESAU
3. HON. AUGUSTINE UDO EKONG
4. HON. CHRISTIAN U. EKPENYONG
5. HON. SATURDAY OKON UDO
6. HON. MRS. GERTRUDE A. AMMAH
7. HON. CLETUS BASSEY DICK
8. HON. CYRIL ISAIAH UMOH
9. RUTH MICHAEL E. NSIBEHE (MRS.)
10. AGNESS DOMINIC MARCUS NWADA (MRS.)
11. OBOT AKARA LOCAL GOVT. COUNCIL Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Hon. Justice Stephen Okon of the High Court of Akwa Ibom State in suit No. HT/80/2010 delivered on the 27th day of January, 2014.
The 1st – 10th Respondents had commended this suit under the Undefended List against the 11th Respondent at the lower Court. However, following the notice of intention to defend filed by the 11th Respondent, the matter was transferred to the General Cause List for hearing and determination. The claims of the Respondents as plaintiffs was for an order directing the Appellants as defendants jointly and/or severally to pay to the plaintiff the cumulative sum of Four Million, Nine Hundred and Forty-two Thousand Naira, Ten Kobo [N4,942,057.10] being Allowances for the Plaintiffs Special Assistants, Personnel/Legislative Assistants and Constituency Allowances for the period plaintiffs served the Defendant as Councilors.
The 1st – 10th Respondents with the leave of Court thereafter joined the 1st and 2nd Appellants as co-defendants.
The Respondent called only one witness, PW1. And, though the Appellants as 2nd and 3rd Defendants in the Court below filed statement of defence, the defendants did not defend the action.
The learned trial judge found in favour of the 1st – 10th Respondents plaintiffs against the Appellants but dismissed the suit against the 11th Respondent.
At pages 163 – 164 of the Record of Appeal, the trial Court concluded that:
The 2nd & 3rd defendants failed to produce evidence to show that it was not the 2nd defendant that was the one paying the plaintiffs the allowances claimed in this suit, in addition to the Severance Gratuity it earlier paid to the Plaintiffs.
I am therefore of the firm view that it was the 2nd defendant which was the proper body to pay the outstanding allowances to the plaintiffs. The plaintiffs suit hereby succeeds against 2nd and 3rd defendants.
Consequently, it is hereby ordered as follows:
1. THAT IT IS HEREBY ORDERED that the plaintiffs are entitled to be paid Allowances for their Special Assistants, Personal/Legislative Assistants and Constituency Allowances.
2. THAT the 2nd and 3rd Defendants shall forthwith pay to the Plaintiffs the cumulative sum of N4,942,057.10 [Four Million, Nine Hundred & Forty-two Thousand, Fifty-Seven naira, Ten kobo] only, being the outstanding Allowances for the Plaintiff’s Special Assistants, Personal/Legislative Assistants and Constituency Allowances, for the period June 1999 up to and including July, 2002, being the period they served as Honorable Councilors in Obot Akara Local Government Council.
3. The said amount is made up of the Plaintiff’s entitlements as follows:
1st Plaintiff N520,584.06
2nd Plaintiff N487,715.38
3rd Plaintiff N487,715.38
4th Plaintiff N487,715.38
5th Plaintiff N487,715.38
6th Plaintiff N487,715.38
7th Plaintiff N487,715.38
8th Plaintiff N487,715.38
9th Plaintiff N487,715.38
10th Plaintiff N487,715.38
TOTAL N4,942,057.10
It is hereby further ordered that this suit be and is hereby dismissed against the 1st Defendant.
I assess costs in favour of the plaintiffs against the 2nd & 3rd Defendants at N20,000.00.
Dissatisfied with the judgment, the Appellants on 10/2/2014 filed a Notice of Appeal with a sole ground of appeal in this Court. The ground of appeal together with its particular read thus:
GROUND 1
The lower Court had no jurisdiction to entertain the suit by virtue of the 1999 Constitution of the Federal Republic of Nigeria [Third Alteration] Act 2010.
PARTICULARS OF ERROR
a) That the claim of the Plaintiffs relates to their condition of service with the 11th Respondent.
b) The claim of the 1st ? 10th Respondents was for their unpaid allowances from the 11th Respondents for the period they served as councilors.
c) This action ought to have been transferred to the National Industrial Court for determination.
The relevant briefs of argument for the appeal are:
1. Appellants brief of Argument dated and filed on 4/7/14 but deemed filed on 2/11/2015. It is settled by EMEM DANIEL, Assistant Director, Ministry of Justice, Uyo.
2. 1st to 10th Respondents brief of Argument dated and filed on 10/10/14. It is settled by DAVID EKPO, Esq.
Learned counsel for the Appellant nominated a sole issue for determination. It is:
Whether the trial Court had jurisdiction to entertain Suit No. HT/80/2010 which bordered on the condition of service of the 1st – 10th Respondents with the 11th Respondent.
The 1st – 10th Respondents adopted the sole issue nominated by the Appellants for determination of the Appeal. On the sole issue, learned counsel for the Appellant submitted that the trial Court lacked the jurisdiction to entertain suit No. HT/80/2010 same being a suit relating to the condition of service of the Respondents. He submitted that Section 254 (1) (k) of the Constitution of the Federal Republic of Nigeria [Third Alteration Act] 2010 vest the jurisdiction to hear all matters relating to or in connection with disputes arising from payment or non-payment of salaries, wages, pension, gratuities , allowances, benefits, and other entitlement of any employee, worker, political or public office holder, judicial officer or any public servant in any part of the Federation and matters incidental thereto on the National Industrial Court. He referred to the case of MADUKOLU V NKEMDILIM [1962] 2 SCNLR 341 and submitted that the subject matter of this case is not within the jurisdiction of the State High Court which assumed jurisdiction and entertained this suit but is vested on the National Industrial Court.
He submitted that in determining the question of jurisdiction of the Court, the Court will consider the writ of summons, statement of claim and facts deposed to in an Affidavit. That the statement of defence is not one of the relevant material for that purpose.
He submitted that the Respondents case was predicated upon the non-payment of allowances to their Special Assistants, Personal/Legislative Assistants and Constituency Allowances as acknowledged by the trial Court on pages 157 – 158 of the Record of Appeal.
He reminded us that whenever the question of jurisdiction of the Court is canvassed, attention ought to be focused on the subject matter of the suit and where the subject matter does not fall within those which a court can assume jurisdiction then that Court is not the proper forum for the ventilation of that action. And, that where a Court is bereft of jurisdiction, any proceeding conducted without such power is an exercise in futility and therefore a nullity. On this, he referred to the cases of ANAO V SUN PUBLISHING [2013] 3 NWLR [Pt. 1341] 399 @ 401 and OKARIKA V SAMUEL [2013] ALL FWLR [Pt. 706] 484 @ 486.
He urged us to hold that the learned trial judge lacked jurisdiction to entertain the suit. Learned counsel for the 1st – 10th Respondents on the other hand submitted that the trial Court had jurisdiction to hear and determine suit No. HT/80/2010. This, he said is because Section 254 (1) (k) of the Constitution of the Federal Republic of Nigeria [as amended] read together with Section 12 (1) of the Industrial Court Act, Laws of the Federation of Nigeria 2011 does not operate to oust the jurisdiction of the High Court especially where the employer/employee relationship had ceased before the matter is instituted. He submitted that as can be seen from the record, especially the statement of claim, the plaintiffs [1st – 10th Respondents] were Honorable Councilors in the 11th Respondent [Obot Akara Local Council] in 1999. They all served and saw out their tenure in 2002. Some of the entitlements were not paid. This non-payment of entitlement to the 1st – 10th Respondents was acknowledged by the 11th Respondent who wrote Exhibit ‘C’ to the 1st Appellant urging her to give Respondents their due entitlement.
That upon the joinder of the Appellants, they filed a joint statement of defence and in paragraph 8 thereof, they admitted owing the said sum of money and accepted also that it is their responsibility to pay. He submitted that the issue of indebtedness of the 11th Respondent in conjunction with the Appellants to the 1st to 10th Respondents does not arise at all.
He submitted that the case of the 1st – 10th Respondents does not fall within the scope of the exclusive jurisdiction of the Industrial Court as provided under the Act, especially its Section 12(1) thereof.
From the state of the pleadings, said counsel, the 11th Respondent admitted her indebtedness to the 1st – 10th Respondents in their letter of 28/12/2007- Exhibit C. That according to the 11th Respondent, the authority or body or institution to pay is the 1st Appellant. And that this again was resolved by the 1st Appellant when she admitted in their paragraph 8 of their Statement of Defence that it is her responsibility to pay the unpaid entitlements to the 1st – 10th Respondents.
1st – 10th Respondents counsel reasoned that from the facts adumbrated above, there was no ‘dispute’ such that the exclusive jurisdiction of the National Industrial Court could be invoked. And, that assuming but not conceding that there was a dispute, the 1st – 10th Respondents all served out their tenures in 2002 and brought this action in 2010 for their unpaid entitlement, which looking at it contractually became a debt owed them. He added that at the time the matter was filed, the relationship of the 11th Respondent and the 1st – 10th Respondents had expired by effluxion of time. And, that the Industrial Court will not and cannot have jurisdiction over parties whose relationship had ceased or expired or had been terminated.
Learned counsel for the Respondent referred to Section 12(1) of the Industrial Court Act 2011 and submitted that the Industrial Court does not have jurisdiction to settle dispute for parties whose relationship has either expired or terminated or generally ceases to exist or never existed at all.
On this, 1st – 10th Respondents counsel referred to the case of OSOH V UNITY BANK PLC [2013] 9 NWLR [Pt. 1358] page 10 wherein the Supreme Court interpreting similar provision in the Trade Dispute Act said inter alia:
In the instant case, the Appellants were no longer employees of the Respondent as at the time they filed their suit and the Appellants claim was for their terminal benefits?
After referring also to the case of NATIONAL UNION OF ELECTRICY EMPLOYEES & ANOR V BUREAU OF PUBLIC ENTERPRISES [2010] 7 NWLR [Pt. 1194] page 538 @ 541 Respondents counsel concluded that the High Court rightly assumed jurisdiction to hear and determine the case of the 1st to 10th Respondents.
In deciding the sole issue in this appeal, it would be recalled that the summary of the Appellants argument is that the trial Court does not posses the subject matter jurisdiction to entertain the claims of the Respondents which according to Appellants is for payment of ?Allowances for the Plaintiffs Special Assistants, Personel/Legislative Assistants and Constituency Allowances for the period plaintiffs served the Defendant as Councillors.
The Respondents on the other hand argued that from the pleadings and evidence adduced, the case of the Respondents does not fall within the exclusive jurisdiction of the National Industrial Court under Section 254(1)(k) of the 1999 Constitution as [amended] and that the suit was properly tried by the High Court of Akwa Ibom State.
The Respondents in pursuing this line of argument submitted that a combined reading of the provision of Section 254(1)(k) of the Constitution of the Federal Republic of Nigeria 1999 [as amended] and Section 12(1) of the Industrial Court Act reveals that the National Industrial Court is created to handle ‘DISPUTES’ arising from or relating to employment between an employer/employee, employer/trade union, employers organization/employers organization, trade unions/its members, etc. And also that in the instant case there was really no ‘dispute’ as such between employer/employee. This, according to the Respondents is not merely because the amount claimed by the Respondents was not in dispute between the parties but also because the tenure of the 1st – 10th Respondents with the 11th Respondent had expired by effluxion of time long before the suit was instituted perhaps only to recover unpaid debt owed to them. Section 254C (1)(k) of the Constitution of the Federal Republic of Nigeria clothes the National Industrial Court with exclusive jurisdiction in 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 or matters incidental thereto.
In my opinion also and with due respect to the learned counsel for the Appellant there are two key words or phrases that form part of the conditions for the application of Sub-section (k) of Section 254C (1) that are not present from the facts and circumstances of the instant case. They are Disputes and employee, worker etc.
A careful perusal of the pleadings and evidence in this case will show that the Respondents statement of claim is for an acknowledged debt, the defence, an admitted debt and the evidence an uncontested debt.
In such circumstances, one cannot in all seriousness talk about ‘dispute arising from’ in the circumstances of the case.
The Compact Edition of the Oxford English Dictionary [OUP] 1988 Reprint defines words ‘dispute’ and ‘disputed’ at page 762 as follows:
Dispute- 1. The act of disputing or arguing against, active verbal contention, controversy, debate . . .
Disputed – That is made the subject of dispute, debate or contention, debated, contested.
In the instant case, there was no dispute whatsoever on the claim of the Respondents with the Appellants on the payment of their arrears of Allowances, as it were the Respondents suit was for an order of Court to compel the Appellants to pay debts already admitted by the Appellants themselves.
In this respect, paragraphs 10 – 17 of 1- 10th Respondents statement of Claim on pages 58 – 60 of the Record of Appeal are quite instructive:
10. Sometimes in October 2007, the Plaintiffs after several oral demands and pleas, wrote a letter of demand dated 2nd October, 2007 to the Chairman, Obot Akara Local Govt. Area of Akwa Ibom State demanding payment of their entitlements. The Chairman, in apparent reaction to Plaintiffs letter wrote to the Commissioner, Ministry of Local Government and Chieftaincy Affairs on the 28th December, 2007 admitting indebtedness and requesting the Commissioner to pay the Plaintiffs. Both Plaintiffs letter to the Chairman and that of the Chairman of the Council to the Commissioner, are hereby pleaded and shall be founded upon during trial. Defendant is hereby given Notice to produce both letters for Court’s Inspection.
11. Plaintiffs waited and continued to plead with the 1st Defendant to pay but the Defendant persistently refused to pay.
12. Plaintiffs avers that the 1st Defendant never told them that the allowances mentioned in paragraph 8 of this Statement of Claim is to be paid by any other person or Institution and no person or Institution has ever paid or undertake to pay the Plaintiffs the unpaid entitlement mentioned in paragraph 8 of this Statement of Claim.
13. Plaintiffs aver that the only time another person paid them was when the Ministry of Local Government and Chieftaincy Affairs paid them their SEVERANCE ALLOWANCES. The severance allowance is not what the Plaintiffs are claiming here.
14. Plaintiffs aver that upon the persistent refusal of the 1st Defendant to pay to the Plaintiffs their allowances, the plaintiff consulted a firm of legal practitioners who wrote to the 1st Defendant demanding payment. That letter which the Defendant never reacted to is hereby pleaded and shall be founded upon during trial. The 1st Defendant is hereby put on Notice to produce her copy of that letter dated 8th February, 2010 for Court’s inspection.
15. Plaintiffs aver that upon the 1st Defendant?s continued refusal to pay and/or react to their solicitors’ letter, Plaintiff filed a suit on the undefended list, which the Court later transferred to the General cause list and ordered that pleadings be filed.
16. Plaintiffs aver that in the Affidavit of the 1st Defendant filed to support the Notice of Intention to defend dated 29th June, 2010, the 1st Defendant alleged that it is the second defendant who is to pay to the Plaintiffs the amount claimed by the plaintiffs. The 1st Defendant further stated that the 2nd Defendant had deducted money from the 1st Defendant for that purpose.
17. The Defendant either jointly or severally are owning the Plaintiffs, WHEREFORE the Plaintiffs claim the Defendant as follows:
a) A declaration that the Plaintiffs are entitled to be paid Allowances for their special Assistants, Personnel/Legislative Assistants and Constituency Allowances.
b) AN ORDER directing the Defendants jointly and/or severally to pay to the Plaintiff the cumulative sum of Four Million, Nine Hundred and Forty-two Thousand, Fifty-seven Naira, Ten kobo [N4,942,057.10] being Allowances for the Plaintiffs’ Special Assistants, Personnel/Legislative Assistants and Constituency Allowances for the period plaintiffs served the Defendant as Councillors.
Secondly, and as rightly pointed out by the learned counsel for the Respondents, the 1st – 10th Respondents were no longer employees of the Appellants and/or the 11th Respondent. ‘The Councilors all served out their tenure in 2002 and later brought this action in 2010 for their unpaid entitlement, which looking at it contractually, became a debt owed them…’
By this submission from the 1st – 10th Respondents counsel, I think we are indeed entitled to borrow a leaf from the decision of the Supreme Court in the case of AKAUVE MOSES OSOH & 40 ORS. V UNITY BANK PLC [2013] 9 NWLR [Pt. 1358] 1 @ 38 where the Supreme Court per Chukwuma-Eneh, JSC, defines ‘trade dispute’ to mean any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person.
And in the circumstances of the case before the Supreme Court which has bearing on the instant appeal, the apex Court held that the Appellants were no longer employees of the respondent, who was their former employer. In the circumstance, the dispute between the Appellants and the respondent was not a trade dispute. See also N.U.R.T.W. V. OGBODO [1998] 2 NWLR [Pt. 537] 189,; N.U.E.E. V B.P.E. [2010] 7 NWLR [Pt. 1194] 538.
Clearly therefore, any issue of jurisdiction in between the National Industrial Court and the instant State High Court has to be predicated on the facts as pleaded in the Statement of Claim.
In the instant case, the jurisdiction of the National Industrial Court as prescribed under Section 254C-(1)(k) and Section 12(1) of the Industrial Court Act is ousted by the claim of the Respondents which is for acknowledged indebtedness of unclaimed payment of arrears of allowances by the Appellants and the 11th Respondent.
The High Court of Akwa Ibom State properly assumed jurisdiction in this case.
The sole issue in this appeal is resolved in favour of the Respondents.
This appeal lacks merit and it is accordingly dismissed. There shall be costs of N100,000.00 jointly and severally in favour of the 1st – 10th Respondents only.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE JCA and I agree with the resolution of the sole issue for determination and I abide by the orders made therein the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother Mojeed A. Owoade, JCA and I agree with the reasoning and conclusion arrived at in dismissing the appeal. I too find no merit in this appeal which I dismiss. I endorse all the consequential orders made in the lead judgment including orders as to costs.
Appearances:
Emem Daniel (Asst. Director, Ministry of Justice, Uyo)For Appellant(s)
David Ekpo, Esq.For Respondent(s)
