IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/LA/585/2017
DATE: JULY 20, 2018
BETWEEN:
MR. ROBERTO ROSI – CLAIMANT / RESPONDENT
AND
MG VOWGAS LIMITED – DEFENDANT / APPLICANT
REPRESENTATION:
Oluwatoyin Uyana – for the Claimant;
Onome Okodiya, Esq with Zingtin Gambo, Esq. – for the Defendant.
RULING
The Claimant/Respondent, an Italian National, commenced this suit vide a General Form of Complaint with the frontloaded processes issued on and dated 29th November 2017, contending that he was employed on 1st April 2017 as the Technical Manager of the Defendant company for two year period renewable for another one year, but that the employment was unlawfully terminated on 4th August 2017, few months after it commenced.
The Claimant/Respondent sought for the following Reliefs:
a. A Declaration that the termination of the Claimant’s employment [is] wrongful, unconstitutional, ultra vires, null and void.
b. An Order directing the Defendant to pay the Claimant the sum of US$380,000.00 (three hundred and eighty thousand US Dollars) representing the expected salary for 19 months at the rate of US$20,000 per month to cover the Claimant’s salary from September 2017 till March 31st 2019 when the Claimant’s employment with the Defendant will lawfully terminate by effluxion of time and be subject to renewal.
c. An Order directing the Defendant to pay the Claimant the sum of N4, 000,000.00 (four million naira) representing the Claimant’s contractual local allowance of N200,000 (two hundred thousand naira)for the period of 20 months from August 2017 till March 2019 when the Claimant’s employment with the Defendant will lawfully terminate by effluxion of time and be subject to renewal.
d. An Order directing the Defendant to pay the Claimant the sum of N10,000,000.00 (ten million naira) being cost for general damages against the Defendant for humiliation, harassment apprehension and wrongful termination of Claimant’s appointment.
e. An Order directing the Defendant to pay the Claimant the sum of N1,000,000. (one million naira) against the Defendant being the cost of instituting this action.
f. 10% interest on the Judgment sums from the date of the Court’s judgment until the date the Judgment sum is fully liquidated pursuant to Order 47 Rule 7 of the Rules of this Court.
Upon service of the processes, the Defendant/Applicant reacted with filing its Statement of Defence and other frontloaded defence processes dated 24th January 2018. The Defendant/Applicant also filed a Motion on Notice dated and filed on 9th February 2018, which prays for:
“An Order transferring this Suit from the Lagos Judicial Division of this Honourable Court to the Port Harcourt Division. And for such further or other Order(s) as this Honourable Court may deem fit to make in the circumstances”.
The Grounds upon which the Application is brought were set out as follows:
“a). That by the provision of Order 2 Rule 1(1) of the National Industrial Court (Civil Procedure) Rules 2017 this suit ought to be commenced in Port Harcourt Division of this Honourable Court and not the Lagos Division of this Honourable Court.
b). That the Defendant carries on business within the Port Harcourt Division of this Honourable Court and therefore this Honourable Court lacks the territorial Jurisdiction to entertain this suit.”
Filed along the Motion is an 8-paragraph Affidavit in Support deposed to by one Adeniyi Bobola, a legal Practitioner in the law firm of the Defendant/Applicant’s Solicitors, as well as a Written Address dated and filed on 9th February 2018. The Claimant/Respondent opposed the Motion with a Counter-Affidavit deposed to by Oluwatoyin Oyanna, Counsel with the law firm of Duale, Ovia & Alex-Adedipe, the Claimant’s Solicitors, filed on 22nd February 2018 along with one Exhibit (marked exh.A) and a Written Address dated and filed on 22nd February 2018. On 5th March 2018 the Applicant filed a Further and Better Affidavit upon receipt of the Respondent’s Couter-Affidavit.
The Application was set down for hearing at the resumed proceedings of 26th April 2018.Moving the Motion, learned Defendant’s counsel, Onome Okodiya, Esq, pointed that the Application was brought pursuant to Or.2 R. 1 (2), Or.2 R.6 NICN (Civil Procedure) Rules 2017, and the inherent jurisdiction of the Honourable Court. Counsel stated that the application is basically asking the court to transfer this suit from the Lagos Judicial Division to the Port Harcourt Judicial Division, in that the matter ought to have been filed at the Port Harcourt Division and not Lagos Division, pursuant to Or.2 R.1 NICN (Civil Procedure) Rules 2017, as the Defendant carries on business within Port Harcourt Division, and thus this court sitting in Lagos Division lacks the territorial jurisdiction to entertain this suit. To learned counsel, the sole issue for is – Has the Applicant not disclosed sufficient facts to warrant grant of this application? Counsel argued that by the provisions of Or.2 R.1 NICN (Civil Procedure) Rules 2017, litigants are given liberty to commence their suit in any Judicial Division of the Court but it does not give the liberty to the parties to decide where the cases are to be heard and determined, especially where the Court has its presence in the jurisdiction where the cause of action arose and where the Defendant is resident.
Counsel further argued that, by the combined effect of Or.2 Rr. 4, 5 and 6 NICN (Civil Procedure) Rules 2017, the onus is on the Claimant/Respondent, having filed outside the territorial jurisdiction where the cause of action arose and where the Defendant resides, to apply to the President of the Court (PNICN) to authorize the suit to be tried in the Lagos Division and not at the Port Harcourt Division of the court. Counsel contended that in absence of any application to the PNICN and proof of his authorization that the case be heard in Lagos Division rather than at Port Harcourt, the appropriate Order is to remit/ transfer the matter to the division it ought to be heard and determined. Counsel urged the court to uphold his submissions and grant the application as prayed, based also on the authorities relied on and cited in the Written Address he had adopted.
Responding, learned Claimant/ Respondent’s counsel, S. Ovia, Esq., relied on the Counter-Affidavit and Exhibit attached (marked exh.A) and adopted the submissions in the Written Address. Counsel formulated one issue for determination- Whether or not in the light of the facts and evidence submitted by the Claimant/Respondent, and having regard to the facts and circumstances of this case, the Defendant’s Motion on Notice for transfer is sustained in law, and if not, whether it ought to be declined by this Honourable Court, and consequently struck out with substantial cost? Counsel contended that the gravamen of the Claimant’s argument is anchored on the validity and potency of this court particularly Or. 2 R. 1(I) NICN (Civil Procedure) Rules 2017 and the proviso thereof, permitting the filing of the suit at a place closest to the business operation and residence of the Defendant, in the event of security threat. Counsel refers to Paragraph 6 of the Counter-Affidavit, wherein the Claimant deposed to facts that bring the suit under the proviso of the Rules. By the depositions in the said paragraph 6, counsel contended that it is the Claimant’s case that he is an expatriate (Italian citizen) and all the while of his employment with the Defendant, from the point of getting to Port-Harcourt to resume duties up to the time of his wrongful dismissal, he always had security details attached to him, because of the security threats, common in the Port Harcourt area. Counsel also refers to paragraph 4(d) of the Defendant’s Statement of Defence, which forms part of the record of the court, and the Defendant admitted providing the Claimant security details throughout his employment period in Nigeria. Counsel further pointed the existence of real threat of insecurity, relying on Exhibit A attached to the Counter–Affidavit, which is an online publication which was brought to the Claimant’s attention few days before he instructed his Solicitors to institute this suit. Counsel submitted that although the online publication was not meant or directed at the Claimant, it aroused fears and caused his decision to institute the case in Lagos instead of Port Harcourt. Concluding learned Claimant’s counsel urged the court to discountenance the Defendant/Applicant’s application and dismiss same for lacking merit.
COURT’S DECISION
I have read the processes filed and exchanged by both counsel in respect of this Application, and have listened to their respective submissions passionately canvassed for and against the Application under consideration.
From the processes and arguments canvassed, it is common ground between both counsel that the subject matter and transaction leading to this suit arose in Port-Harcourt and the Defendant resides and carries on business there. It is also common ground that by the Rules of this court, that given some certain stated circumstances, a litigant can approach this court at any of the divisions to file a suit other that in the appropriate Judicial Division it would ordinarily be filed. What is in contention is whether any circumstance permitting the filing of the case in another division other than in a nearby division, has arisen in the instant case, and if the case can also be heard in such other division of the court without an authorization of the President of this Court?
In resolving the issues, I will start by setting out the extant provisions of the Or. 2 R. 1(I) (2) NICN (Civil Procedure) Rules 2017, which calls for interpretation and application in the instant application.
The Or. 2 R. 1(I) states:
“1-(1) Subject to the provisions of the Act on transfer of suits, an originating process in respect of a matter in which the court has jurisdiction shall be filed in any Registry of the Court nearest to where the defendant or respondent resides or has presence or in which the defendant or respondent carries on business. Provided that where economic, security, environmental or other exigencies warrant, an originating process may be filed in the Court’s Registry in a Judicial Division other than that closest to the place of residence or business of the defendant(s) or respondent(s)”.
By Or.2 R. 1(I) (Civil Procedure) Rules 2017, ordinarily, a suit is to be commenced at the Judicial Division nearest to the place of cause of action or the Defendant’s residence or place of business. By Or. 2 R.2(3)(b), even if there is no Resident Judge in any State of Nigeria, State Registries are established and empowered to receive processes and transmit to the nearest Judicial Division for necessary action. In the instant case, there is established a full Judicial Division in Port-Harcourt, Rivers State. The cause of action arose in Port-Harcourt (where the employment contract was domiciled) and the Defendant resides and carries on business in Port- Harcourt. The Proviso to Or.2 R.1 admits of filing a suit in another Judicial Division other than the appropriate one in such certain circumstances ‘where economic, security, environmental or other exigencies warrant’. The circumstance in issue in the instant application is ‘security’.
The thrust of the Application is that the Claimant/Respondent is an expatriate and has been provided with security details all the while in employment with the Defendant in Port-Harcourt, but has no such security protection any more upon termination of his employment, and his fear got heightened after his attention was drawn to the online publication showing gruesome daylight murder of a man with his family, by assailants that abducted an expatriate even with police escort in Port-Harcourt, few days before he instructed his solicitors to file this suit. This averment was contained in paragraph 6 of the Counter- Affidavit and exh.A attached thereto. The exhibit A has a news titled: “ Gunmen Kill Man, 3-year old Daughter, Abduct Expatriate” and reads thus: “ Gunmen suspected to be kidnappers have killed a man, his three- year old daughter and a police escort in order to kidnap an expatriate in Rumukrushi area of Port Harcourt, Rivers State. PMNEWS gathered that the incident occurred at the popular Tank area of Port Harcourt. The pregnant wife of the deceased, said to be expecting their second child, instantly collapsed on learning about the demise of her bread winner. Investigations revealed that the gunmen trailed a vehicle whose occupant was an expatriate who had a police escort. They laid ambush for their target and on sighting him, opened fire. There was an exchange of gun fire between the armed assailants and the police escort. Sensing that he was no match for the armed men, the policeman fled and ran into a roadside shop where a man and his little daughter were sitting. The gunmen pursued him to the shop and shot him dead. They also killed the man and his daughter and later made away with the policeman’s gun”.
With the above Claimant’s averment and narrative of the awful incident in exh.A, I hasten to disagree with the contention of the learned Defendant/Applicant’s counsel in his Written Address that the Claimant/Respondent did not provide sufficient materials on the alleged insecurity that prompted the filing of the Suit in Lagos Division as against Port-Harcourt Division. What other ‘sufficient material of insecurity’ would be necessary? In the circumstance, I find that there is sufficient evidence of incidence of apprehension of insecurity which would warrant invoking the proviso to Or.2 R.1 to institute the case outside Port-Harcourt. Accordingly, I hold that the suit was properly filed in Lagos Division of this court.
Nonetheless, a follow-up issue rears up- Can the case be heard in such other Judicial Division of the Court without an authorization of the President of this Court? In other words, can this suit be heard in Lagos Division without an authorization of the Hon. President of the Court, having been a suit filed in a Judicial Division other than the appropriate one due to certain circumstance warranting the filing pursuant to the proviso to Or.2 R.1 NICN (Civil Procedure) Rules 2017?
The Or. 2 R. 1(2) states:
“ (2) Upon the filing of the originating process pursuant to sub-rule (1) of this rule, any hearing notice in respect of the case or matter shall be promptly served on the Defendant(s) or Respondent(s) and may be heard and determined at a Judicial Division as may be directed by the President of the Court”.
From the tenor of the Or. 2 R. 1(2), Hearing and determination of a case filed outside the appropriate Judicial Division of the court cannot be done in the place of filing without the directive of the Hon. President of the Court (PNICN). And such a suit can even be heard in any other Judicial Division other than the place it ought to be filed or the Judicial Division it was actually filed. All depends on the directive of the Hon. PNICN. To that effect, whereas the Rules of this court allows for filing outside the appropriate Judicial Division depending on the set out circumstances of economic, security, environmental concerns that may arise, the place of Hearing of the suit is dependent on the directive given by the Hon. PNICN, which can be designated to be the place of the filing, the supposed Judicial Division or any other Judicial Division of the court as would be indicated in the directive by the Hon.PNICN, given the prevailing circumstance. I so hold.
On this note, I find that there is no evidence of the authorization of the Hon. PNICN to hear and determine this suit at the Lagos Division where it was rightly filed due to the circumstance of insecurity that warranted such filing outside the supposed Judicial Division in Port Harcourt, as required by Or. 2 R.1(2). The learned Defendant/Applicant’s counsel strenuously canvassed this issue, and I find it meritorious and uphold same. Accordingly, I hold that in absence of any evidence of authorization of this suit to be heard in Lagos Division, by the Hon. President of this Court, same cannot be heard by this Court sitting at Lagos Judicial Division.
Coming to the relief sought for in the Application, a novel circumstance has presented itself at this point. The main relief is for an Order Transferring the suit to Port Harcourt Division, where it can be heard. An emerging critical issue for determination is – Whether this court can make an order of transfer of this case by judicial function or is the power of transfer of cases across judicial divisions of this court exercisable by a Judge of this court other than the President of the court. Put differently, is power of transfer of assigned cases across divisions of this court a judicial or administrative function and who can perform such, as between individual Judges and the President of the Court?
I have taken a critical look at this nagging issue that reared up in determining this Application. A review of the provisions of the Rules of this court dealing with Transfer of cases across various Judicial Divisions seems to me that such role is an Administrative and not a Judicial role, and the administrative power to transfer cases is given to the Head of the Court; the Hon. President (PNICN). See: Or.62 Rr.7, 8, 9 and 10 NICN (Civil Procedure) Rules 2017. Of particular note is the last sentence in Or.62 R.10 (4), to the effect that: “The directive of the President of the Court on the issue of transfer of the cause or matter shall be final”.
Being confronted with the request to perform such an administrative duty while acting strictly in judicial capacity to determine an Application pending before me, is quite daunting and requires double check of relevant authorities. Surprisingly, no direct authority on this transient but germane issue was canvassed by either counsel. I equally did not get any legal authority empowering me to that effect. The suit appears also to have been landlocked and enmeshed in the emerging issue. Whereas I have held earlier in the course of this Ruling that the suit was rightly filed in Lagos Division but that it cannot be heard in Lagos Division in absence of a directive by the Hon. President of the court, the emerging logjam is that I cannot also as a sitting Judge, not being the Hon. President of the court, and not performing administrative role, order a Transfer of this suit to Port-Harcourt Division for the Hearing.
In the circumstance, the Application succeeds in part, to the extent that the Hearing of this suit cannot be done in Lagos Division without a directive from the Hon. PNICN, pursuant to Or.2 R.2 NICN (Civil Procedure) Rules 2017.
To finalize on the relief for an Order to Transfer the suit to Port Harcourt Division, having made a finding that the duty to Transfer cases across various Judicial Divisions of this court is an administrative function and the power of the Transfer lies with the Head of this court, being the Hon. PNICN, I decline to order the Transfer of this suit to the Port-Harcourt Judicial Division, as prayed. However, as a court of law has inherent jurisdiction to do justice and resolve live issue in dispute, in the circumstance of this case, it is important to keep the suit alive with a clear road map going forward. As noted earlier, there was sufficient reason of Claimant’s apprehension of insecurity at the time of filing the suit in Lagos Division, but there is no evidence that the said apprehension of insecurity continued even at this point. If this apprehension of insecurity as expressed by the Claimant is allowed to persist, does it mean that other matters meant to be heard in Port-Harcourt Division would not be heard due to the apprehension of insecurity? This impression ought to be momentary and should not be allowed to settle in mind and constitute an awkward obstacle to effective utilization of a properly constituted Division of this court, with world-class edifice being put in place to enhance justice delivery in that jurisdiction. As a matter of fact, the new ultra modern court complex was launched just few days ago in Port-Harcourt Division.
On that note, going forward, both counsel for the Claimant and Defendant are hereby directed to apply to the Hon. President of the Court (PNICN) to transfer the Suit to Port-Harcourt Division, where the matter ought to be filed and heard pursuant to Or.2 R.1(1) NICN (CP) Rules 2017.
I further direct that the Case file shall be kept in the Registry of this court until further directive by the Hon. PNICN. I so hold and direct.
Ruling is entered accordingly. I make no order as to cost.
—————————————
Hon. Justice N.C.S Ogbuanya
JUDGE
20/7/2018.
