UNION HOMES SAVINGS AND LOANS PLC VS UNION BANK OF NIGERIA PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: FRIDAY 12^THAPRIL, 2019 SUIT NO. NICN/LA/257/2018

BETWEEN

UNION HOMES SAVINGS AND LOANS PLC – CLAIMANT

AND

UNION BANK OF NIGERIA PLC – DEFENDANT

Representation:

EkeneOdumappears for the Claimant

ToyeLatiloappears for the Defendant

JUDGMENT

The Claimant brought this action by an Originating Summons dated 26^th April, 2018 and claims the following reliefs against the Defendant:

A declaration that pursuant to Clause 9.2.4 of the Transaction Implementation Agreement dated 31st December 2013 between Union Homes Savings and Loans Plc., Union Bank of Nigeria Plc., Aso Savings and Loans Plc. and UH Investment Nigeria Limited, Union Bank of Nigeria Plc. shall for the purposes of Union Homes Savings & Loan Plc. settling outstanding staff liabilities, create a credit line for Union Homes Savings & Loan Plc. which shall be applied solely for the purposes of staff liabilities and that the credit line shall subsequently be written off by Union Bank of Nigeria Plc.
A declaration that pursuant to clause 1 of the Transaction Implementation Agreement, Staff Liabilities means all of Union Homes Savings & Loan Plc. employee severance obligations as are outstanding up to January 31^st 2014 which shall be paid by Union Homes Savings & Loan Plc.; and in respect of which Union Bank Nigeria Plc. shall create a credit line for Union Homes Savings & Loan Plc. (to be subsequently written off entirely by Union Bank of Nigeria Plc.); provided that the payment to employees shall be the balances outstanding following the off-set of staff obligations due to Union Homes Savings & Loan Plc.
A declaration that the employee severance obligation of Union Homes Savings & Loan Plc. staff includes redundancy benefits as provided in Clauses 8.11 and 8.12 of the Union Homes Savings and Loans Plc. Staff Policy Guideline of July 2007 and the judgment of this court of 13^th July 2015 in Suit No. NICN/LA/232/2014 AdemulegunGbengaCosmas&223 Others v. Union Homes Savings and Loans Plc.
A declaration that pursuant to Clause G of the Recitals to the Transaction Implementation Agreement, all the terms and conditions for the implementation of the transaction in the Transaction Implementation Agreement are documented in the Transaction Implementation Agreement.
A declaration that in the Transaction Implementation Agreement, there is no Clause or Provision that gives Union Bank of Nigeria Plc. the right to set off the indebtedness of Union Homes Savings & Loan Plc. of N1,927,387,082.74 or any other sum from the mandatory contractual obligation of Union Bank Nigeria Plc. in Clauses 5.1.3.3, 9.2.4 and 11.2.4 to pay off the Union Homes Savings & Loan Plc. outstanding staff liability and severance obligations by providing a credit line to Union Homes Savings & Loan Plc. for this purpose.
An order directing Union Bank of Nigeria Plc. to immediately create a credit line for Union Homes Savings & Loan Plc. and provide to Union Homes Savings & Loan Plc. the sum of N1,957,764,421.56 (One Billion, Nine Hundred and Fifty Seven Million, Seven Hundred and Sixty Four Thousand, Four Hundred and twenty one Naira, Fifty Six Kobo) for the purpose of settling Union Homes Savings & Loan Plc. outstanding staff liabilities and employee severance obligations as contracted in Clauses 5.1.3.3,9.2.4 and 11.2.4 of the Transaction Implementation Agreement.

Or in the alternative

An order directing Union Bank of Nigeria Plc. to immediately create a credit line for Union Homes Savings & Loan Plc. and provide to Union Homes Savings & Loan Plc. the appropriate and proper sum after due reconciliation by both parties for the purpose of settling Union Homes Savings & Loan Plc. outstanding staff liabilities and employee severance obligations as contracted in Clauses 5.1.3.3, 9.2.4 and 11.2.4 of the Transaction Implementation Agreement.

The cost of this suit including Solicitor’s fees assessed at N12,500,000.

The Claimant raised the following lone question for determination:

Whether by the provisions of the Transaction Implementation Agreement, the Claimant is entitled to the declaratory and consequential orders sought”.

The summons is supported by a 30-paragraph affidavit deposed to by FadekemiTejufusi and supported by 11 exhibits. In addition and as is required by the Rules, the summons is accompanied by a written address. In response to the Originating summons, Defendant filed a Counter-affidavit dated 3^rd August 2018, deposed to by Jeremiah Zephanian. The Claimant filed a Reply on Points of Law, in response to Defendant’s counter-affidavit.

Notice of Preliminary Objection:

In further response, the Defendant brought a Notice of Preliminary Objection dated 15^th May 2018 but filed on 16^th May 2018, challenging the jurisdiction of this Court, to hear this matter. The Notice of Preliminary Objection is brought pursuant to section 254(C) of the Constitution of the Federal Republic of Nigeria (as amended) and Order 18 Rule 2(2), of the National Industrial Court of Nigeria (Civil Procedure Rules), 2017, and under the Inherent Jurisdiction of the Court. The Defendant/Applicant seeks principally for an Order striking out this suit on the ground that this Court lacks the requisite jurisdiction to entertain this suit.

The grounds for the Notice of Preliminary objection as enumerated by the Applicant in the Objection are that:

The Claimant/Respondent’s cause of action in this suit is premised on a breach of contract for sale of shares and take-over of the assets and liabilities of the Claimant i.e. Transactions Implementation Agreement between the Claimant and the Defendant and Aso Investment Nigeria Limited and UH Investment Nigeria Limited (“the Contract”).
The Contract is for sale of shares and take-over of the assets and liabilities of the Claimant and the Contract is pursuant to Companies and Allied Matters Act, Cap C20, LFN.
The Claimant’s sole issue for determination in this suit is also premised on the Contract for the sale of shares and take-over of the assets and liabilities of the Claimant.
The entirety of the reliefs sought in this suit is also premised on the purported breach of the Contract i.e. Transactions Implementation Agreement between the Claimant and the Defendant and Aso Investment Nigeria Limited and UH Investment Nigeria Limited.
The alternative relief of the Respondent in this Suit is an order of specific performance of the Contract. The said relief is seeking an order of Court to direct the Applicant to comply with the provisions of the Contract.
The jurisdiction of this Honourable Court is stipulated in Section 254(C) of the Constitution of the Federal Republic of Nigeria (As Amended). This Court clearly does not have jurisdiction over contracts relating to the sale of shares and take-over of the assets and liabilities of the Claimant i.e. Transactions Implementation Agreement between the Claimant and the Defendant and Aso Investment Nigeria Limited and UH Investment Nigeria Limited.
The Claimant’s cause of action and this suit does not fall within any of the provisions of Section 254(C)(1)(a) – (k) of the Constitution (As Amended)
This Court lacks the requisite jurisdiction over this matter and same should be struck out.

Defendant, in this application contends that Claimant’s cause of action in this suit is in breach of contract i.e. the Transactions Implementation Agreement between the Claimant and the Defendant and Aso Investment Nigeria Limited and UH Investment Nigeria Limited. That, the contract is for sale of shares and take-over of the assets and liabilities of the Claimant pursuant to the Companies and Allied Matters Act, Cap C20, LFN. Defendant also contends that Claimant’s sole issue for determination in this suit is also premised on the contract for the sale of shares and take-over of the assets and liabilities of the Claimant and the entirety of the reliefs sought is also premised on the purported breach of the Transactions Implementation Agreement between the Claimant and the Defendant and Aso Investment Nigeria Limited and UH Investment Nigeria Limited.

In his written address in support of the Notice of Preliminary objection, the Applicant raised the sole issue whether “considering the facts of this case, the issues for determination and the reliefs sought, this Honourable Court has the requisite jurisdiction to determine this Suit and if not, should this Court not strike out this Suit?

Learned Counsel for Applicant, in his argument in support of the preliminary objection submits that this Court is not seised with jurisdiction to entertain this Suit in that the Agreement between the parties sought to be implemented in this action, does not relate principally to matters of employment, labour and industrial relations. Defendant further submits that the Respondent’s entire reliefs in this suit are also premised on the said Agreement which this Court lacks jurisdiction to interpret.

Claimant, in response to the Notice of Preliminary Objection filed a counter-affidavit and argues that the contract has several parts which include the issue of terminal benefits to be paid by the Applicant to the Respondent’s ex-staff. Claimant argues that the cause of action is the issue of terminal benefits which is distinct from the issue of sale or transfer of shares. The Claimant raised the issue, “whether the Notice of Preliminary Objection is sustainable in view of the provisions of section 254(c)(1)9 & K of the Constitution and the Claimant’s relief before this Honourable Court”. In support of this issue, Claimant submits that the use of the word ‘notwithstanding’, in section 254(C) implies that section 254(C)(1)a & k takes pre-eminence and should be applied as this case is arising from the non-payment of gratuities and other entitlements.

The Defendant/Applicant, in response to the Claimant’s counter-affidavit and written address, filed Reply arguments on points of law. In the Reply, Defendant/Applicant argues that if the cause of action in this suit is indeed relating to pensions, gratuity, allowances of employees, then the employees whose pensions and gratuities are in issue are meant to be part of this Suit. Defendant submits that the interpretation of an agreement that deals with the transfer of shares in a company for purposes of taking over such company, like in the instant suit, is outside the scope of the jurisdiction of this Court. Defendant further submits that once the reliefs before the Court relate to any clause of the Agreement or the Agreement itself, this Honourable Court does not have jurisdiction to grant same.

By consent of the parties, it was agreed that this application be taken together with the substantive suit as permitted by Order 18 Rule 3 of the National Industrial Court Rules 2017. The preliminary objection was thus taken on 1^st November 2018, same day as the Originating Summons.

Argument ofthe Originating Summons:

It is the case of the Claimant, as seen from its affidavit in support of the originating summons that pursuance to the Regulation on the scope of Banking Activities and Ancillary matters No. 3, 2010 by the Central Bank of Nigeria (CBN) which repealed the Universal Banking Guidelines and restricts banking business in Nigeria to commercial banks, merchant banks, mortgage banks etc., and required banks to divest their non-banking subsidiaries, the Claimant, the Defendant, Aso Savings and Loans and UH Investment Nigeria Limited entered into a Transaction Implementation Agreement dated 31^st December 2013 (TIA) which prescribed the terms and conditions for the implementation of the transaction aimed at divesting all its subsidiaries, including the Claimant. In Clause 9.1.1 of the Transaction Implementation Agreement, the Claimant undertook to perform its obligations under the Agreement which include the sale of its shares in HFC Bank Ghana and application of all proceeds there from towards the satisfaction of staff liabilities. In Clause 9.2.4 of the Transaction Implementation Agreement, it provided that the Defendant shall for the purpose of settling outstanding staff liabilities, create a credit line for to the Claimant which shall be applied solely for the purpose of staff liabilities; provided that the credit line shall subsequently be written off entirely by the Defendant. Pursuant to Clause 9.1.1 and to the knowledge of the Defendant, the Claimant has sold off its shares in HFC Bank Ghana and the proceeds of the sale is not sufficient to settle the Claimant’s outstanding staff liability and employee severance obligations up to 31^stJanuary, 2014. The former staff of the Claimant instituted legal action against the Claimant for their terminal benefits at the National Industrial Court (NIC) on 22^ndMay 2014 in Suit No. NICN/LA/232/2014 AdemulegunGbengaCosmas&219 Others v. Union Homes Savings and Loans Plc.On 13^thJuly 2015, the National Industrial Court entered judgment in favour of the former staff and ordered that the staff be paid their entitlements and redundancy benefits within 60 days of the judgment. Claimant’s case is that the provision for redundancy is part of the terms and conditions of the employment of the Claimant’s employees as contained in Clauses 8.11 and 8.12 of the Union Homes Savings and Loans Plc. Staff Policy Guideline of July 2007. The outstanding terminal and redundancy benefits of the ex-staff of the Claimant duly calculated is N1,957,764,421.56. Claimant forwarded the judgment of the National Industrial Court to Union Bank of Nigeria Plc and demanded for the sum of N1,957,764,421.56 via the agreed credit line to satisfy the judgment of the Court and Clauses 5.1.3.3, 9.2.4 and 11.22 of the Transaction Implementation Agreement. Defendant responded and admitted their obligation as stipulated in the Transaction Implementation Agreement, but stated that ‘Staff Liabilities’ as stipulated by the Transaction Implementation Agreement excluded redundancy benefits and computed their liability to be N236,977,131.80. On 7^thMarch 2017, the Defendant wrote a letter to the Claimant and stated that they have computed the severance obligation of the affected members of the Claimant’s staff to be N531,996,428.16. In the said letter of 7^thMarch 2017, the Defendant stated that they are setting off the indebtedness of the Claimant to the Defendant of N1,927,387,082.74 from the admitted severance obligation of N531,996,428.16.and other tax liabilities, and further demanded that the Claimant pays the Defendant the sum of N1,041,643,763.80. The Claimant reacted to the letter vide their letter of 29^thMarch 2017 stating that the Defendant cannot set off staff liabilities and tax liabilities under the Transaction Implementation Agreement which belongs to a third party and not the Claimant. Claimant informed the Defendant that the Court of Appeal on 27^thMarch, 2017 upheld the National Industrial Court judgment in favour of the ex- staffs. It is Claimant’s case that the Transaction Implementation Agreement comprise of and contains the whole terms and conditions of the agreement and did not make any provision for the set off of the Claimant’s debt by the Defendant, but stated in Clause 9.2.4 that the Defendant shall create a credit line for the purpose of staff liabilities which credit line shall be written off entirely by the Defendant.

In arguing the Originating summons, Claimant’s Counsel submits for determination the question ‘whether by the provisions of the Transaction Implementation Agreement, the claimant is entitled to the declaratory and consequential orders sought’.

The Defendant, in countering the claims of the Claimant via its counter-affidavit, conceded to the Transaction Implementation Agreement and the circumstances that led to its conclusion, as stated by the Claimant. Defendant however states that the sole objective of the parties in the Agreement was the sale and transfer of the Defendant’s shares in the Claimant to Aso Savings. Defendant states that the implementation of the Agreement was also pursuant to the provisions of Section 539 of the Companies and Allied Matters Act and that the obligation under Clause 9.1.1 of the Agreement is part of the Claimant’s obligation under the contract and has nothing to do with the Defendant. Defendant states that the Claimant to its own knowledge is owing the Defendant the sum of N1,927,389,082 (One Billion Nine Hundred and Twenty Seven Million Three Hundred and Eighty Nine Thousand, Eighty Two Naira) being the amount paid by the Defendant on behalf of the Claimant for the matured time deposits that customers of the Defendant had placed with the Claimant which the Claimant was unable to pay. The Claimant’s indebtedness to the Defendant on the said time deposits was duly acknowledged by the Claimant in a letter dated 22^nd February, 2016. The Claimant requested for a grace of 5 years to settle its indebtedness to the Defendant but the Defendant declined by a letter of 22^nd July 2016. The Claimant failed to liquidate its debt on the mature time deposits and owing to the Claimant’s failure to liquidate the said debt, the Defendant set off same against any sum due to the Claimant. The Defendant calculated the employee’s liability it is entitled to pay under the Agreement to be the sum of N531,996,428.16 (Five Hundred and Thirty One Million, Nine Hundred and Ninety Six Thousand, Four Hundred and Twenty Eight Naira, Sixteen Kobo); and that the severance obligation due to the staff of Claimant as envisaged and agreed under the Agreement by parties does not include redundancy benefits. Defendant states that it has complied with the provisions of the Agreement and it is the Claimant that is owing the Defendant. Defendant further states that it is not a party to the Claimant’s employee suit before the NIC and by virtue of the provisions of clause 5.1.3.3 of the Agreement it is either the Defendant applies the proceeds of the sale of the HFC Banks shares or creates a credit line. The Defendant contends that it is Claimant’s responsibility to meet any other obligation to its staff outside what was contemplated and agreed under the Agreement.

Defendant adopted the sole issue raised by the Claimant. In arguing this issue, Claimant submits that apart from the fact that this Court does not have jurisdiction to entertain this suit and grant the reliefs, the reliefs cannot be granted through originating summons. They argue that by commencing this suit by Originating Summons the Claimant is basically saying that all this Court is to do in this matter is to interpret the Transaction Implementation Agreement and that there are not facts in dispute between the parties. Defendant argues that Claimant’s submission that the provisions of the Agreement are clear and unambiguous and should be given their ordinary meaning; means that the Claimant has not satisfied this Court by cogent evidence and submissions that it is entitled to the reliefs sought in this Suit. The Defendant relying on the case of Odumeru v. Adenuga(2000)12 NWLR (Pt. 682) 466 at 481 Para B – G submits that declaratory reliefs are not granted where trial is not conducted. Defendant also submits that the Claimant’s reference to Clauses in its Staff Policy Guideline and the judgment in Suit No: NICN/LA/232/2014 cannot be relied upon to grant the reliefs sought by the Claimant as they do not bind the Defendant who is not party to either of them.

In Reply on Point of Law, Claimant further submits that this suit was properly instituted by way of originating summons and that the case of Okada Airlines Limited v. FAAN (2015) 1 NWLR (Pt. 1439) 1 at 16 cited by the Defendant Counsel is apt and the provisions of the Rules (Order 3 Rule 3) cited by the Defendant Counsel also apt. However, Claimant submits that Defence Counsel’s application of the authority is distortive and misleading.

COURT’S DECISION

By consent of the parties, it was agreed that Ruling on the Preliminary Objection and Judgment on the Originating Summons be taken together pursuant to Order 18 Rule 3 of the Rules of this Court. In pursuance of this, and having gone through the processes filed in both the Originating Summons and the Notice of Preliminary Objection; and having also listened to arguments of Counsels on both processes, I identify the following issues for determination:

Whether this Court has jurisdiction to hear this suit. This issue is raised to resolve the Notice of Preliminary Objection;
Whether this suit is properly brought by originating summons;
Whether Claimant is entitled to the Reliefs sought in this suit.

The issue of jurisdiction strikes at the root of the competence of the Court to determine a suit before it. It is therefore always necessary to determine it before every other issue that may arise in a suit. A Court’s jurisdiction to hear a suit breaks jurisdiction down into three components: whether there is jurisdiction over the person, whether there is jurisdiction over the subject matter, and whether there is jurisdiction to render the particular judgment sought. The Supreme Court in the case of Abubakar&ors V. Nasamu and ors[2012] 5 SCM, 1 held that:

jurisdiction is crucial and radical issue and it is mandatory to first resolve it before proceeding with the suit, the reason behind this being that issue one in the briefs of all the parties in the four consolidated appeals is jurisdictional in nature, it is mandatory to first and foremost resolve it one way or the other before proceeding to considering other issue in the appeals on the merit. The reason being that jurisdiction is a radical and crucial question of competence. Once there is a defect in competence, it is fatal and the proceedings are a nullity.

Then, in Lafia L.G. V. Exec. Govt. Nasarawa State [2013] ALL FWLR (pt 668) 956 S.C. @982 para H per Rhode- Vivour JSC pointed out that:

Jurisdiction is fundamental in every suit. It is a threshold matter, so once raised, must be decided quickly before anything else. This is so because if a Court lacks jurisdiction to hear a case, but goes ahead to hear the case, no matter how well the case is decided, the entire proceedings would amount to a nullity. It is the life and soul of a case. It is so important that it can be raised at any time in the Court of first instance, on appeal, and even in the Supreme Court for the first time. It can also be raised suomotuprovided counsels are given the opportunity to address the Court on it before a decision is taken.

A Court cannot confer or vest in itself jurisdiction not specifically conferred on it by a statute or the Constitution. Onnoghen JSC in the case of Gafar v. Govt., of Kwara State (2007) 4 NWLR (Pt. 1024) 375 put it this way:

“It is settled law that Courts are creatures of statute based on the constitution with their jurisdiction stated or prescribed therein. That being the case, it is obvious that no Court assumes jurisdiction except it is statutorily prescribed as jurisdiction cannot be implied nor can it be conferred by agreement of parties; see Ariyo v. Ogele(1968) 1 All NLR 1; Timitimi v. Amabebe (1953) 15 WACA 374; Osadebe v. AGBendel State (1991) 22 NSCC (Pt. 1) 137 at 160; (1991) 1 NWLR (Pt. 169) 525 at 572.

In OrhenaAduguGbileve&Anor v. Mrs.NgunanAddingi&Anor(2014) LPELR-22141(SC) held that:

The jurisdiction competence of a Court has been well spelt out in the locus classicus case of Madukolu v. Nkemdilim(1962) 1 All NLR (Pt. 4); (1962) 2 SCNLR 34 where this Court laid down the proper guideline in determining the issue of jurisdiction of a Court and stating that a Court is competent when:-

It is properly constituted as regards members of the Bench, and no member is disqualified for one reason or another,
The subject matter of the case is within its jurisdiction and no feature in the case which prevents the Court from exercising its jurisdiction; and
The case comes before the Court initiated with due process of law and upon fulfilment of a condition precedent to the exercise of jurisdiction.

Section 254(C)(l) a – k of the 1999 Constitution of the Federal Republic of Nigeria and Section 7 of the National Industrial Court Act are the principal instruments that provide for the jurisdiction of this Court. They are reproduced hereunder:

Jurisdiction

254 C (I) 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 relationsand matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

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

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 work place;

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

(k) relating to or connected with disputes arising from payment or non-payment of

salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;

Section 7 of the National Industrial Court Act 2006 provides:

Jurisdiction, etc.

(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters-

(a) relating to-

(i) labour, including trade unions and industrial relations; and

(ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and

(b) relating to the grant of any order to restrain 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;

(c) relating to the determination of any question as to the interpretation of-

(i) any collective agreement;

(ii) any award made by an arbitral tribunal in respect of a labour dispute or an organisational dispute;

(iii) the terms of settlement of any labour dispute or organisational dispute as may be recorded in any memorandum of settlement;

(iv) any trade union constitution; and

(v) any award or judgment of the Court.

(2) The National Assembly may by an Act confer such additional jurisdiction on the Court in respect of such other causes or matters incidental, supplementary or related to those set out in subsection (1) of this section.

The afore-cited Constitutional and statutory provisions show the detailed jurisdiction of this Court. This has been confirmed by the Supreme Court in the case of Skye Bank PLC v. Iwu, (2017) LPELR-42595 where Aka’ahs JSC held:

… It was following on this decision that the Constitution was amended by the Third Alteration to the 1999 Constitution which recognized the Court as a specialized Court and provided in Section 254C the exclusive jurisdiction of the Court over all labour and employment issues.

Specialized Courts of limited and exclusive jurisdiction are seen as fulfilling a growing need for expertise in increasingly complex areas of law. The resolution of labour and employment disputes is guided by informality, simplicity, flexibility and speed. Specialized business Courts will no doubt play an important role in the economic development of the country.

The Declarations and Orders sought to be made are already reproduced. The Preliminary Objection queries this Court’s jurisdiction to make the Declarations and Orders sought in view of the nature of the transaction in the Document presented before this Court for enforcement – the Transaction Implementation Agreement. Defendant’s position is that this action is premised on a breach of contract for sale of shares and take-over of the assets and liabilities of the Claimant in the Transaction Implementation Agreement between the Claimant, Defendant and two other parties. Claimant refers to clause 9.2.4 which provides that the Defendant shall for the purpose of settling outstanding staff liabilities; create a credit line for the Claimant which shall be applied solely for the purpose of staff liabilities. This is the clause which the Claimant argues brings this suit within the jurisdiction to this Court. Claimant refers to section 254(C) 1 (A) & (K) as the section of the Constitution which donates jurisdiction over this suit. That section provides that:

(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;

(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 determine if the subject matter of this suit falls within the jurisdiction of this Court, almost everything revolves round the Transaction Implementation Agreement.

First, the Transaction Implementation agreement sought to be espoused and implemented is between four parties, namely, the Claimant, the Defendant, Aso Savings & Loans Plc and UH Investment Nigeria Limitedand is for the Sale of Shares belonging to the Defendant in the Claimant Company and the Take-over of assets and liabilities of the Respondent Company by one of the other companies. These assets and liabilities happen to include creating a credit line for settling employees’ entitlements. The reasoning of the Claimant suggests that in whatever transaction that a party is involved and employee issues are mentioned (no matter how remote), then this Court would have jurisdiction. In my opinion, it would be stretching it too far to begin to search every conceivable document for the mention of staff interest, in order to bring it within the jurisdiction of this Court; even in the absence of the staffs concerned.

Looking at the document sought to be enforced, it is obvious that none of the parties stand in an employer – employee relationship with the other; nor does any of the other relationships or circumstances stated in paragraphs (a) and (k) exist amongst them.

Further, none of the objectives of the Transaction Implementation Agreement falls under any of the provisions of the sub-paragraphs of the section 254(C) relied on by the Claimant, either directly or relationally. Paragraph 3 of the Agreement contains the scheme objective. It provides as follows:

SCHEME OBJECTIVE AND INTER-CONDITIONALITY OF EVENTS

3.1 The Parties agree that subject to the terms and conditions of this Agreement, ASO – acting through UHNL – shall acquire the Scheme Shares in consideration for the provision of the Investment Amount to UHSL for the purpose of ensuring that UHSL attains Capital Adequacy by the Effective Date.

3.2 It is also agreed (and without prejudice to the provisions of Clause 4 (Scheme Outline), that the Investment Amount shall be paid by ASO only upon ASO’s execution of an agreement with the CBN, in respect of CBN Loan.

I do not find that this objective is anywhere labour related or related to any of the other heads of section 254(C)(1) a&k. I have also considered the provision of paragraph J of section 254(C)1(j) and do not find that the Transaction Implementation Agreement can conveniently fit into any of it. That paragraph provides for the interpretative jurisdiction of this Court over the following:

(j) Relating to the determination of any question as to the interpretation and

application of any-

(i) collective agreement;

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

(iii) award or judgment of the Court;

(iv) term of settlement of any trade dispute;

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

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

(vii) dispute relating to or connected with any personnel matter arising from

any free trade zone in the Federation or any part thereof;

In view of the importance of jurisdiction to adjudication, every Court must satisfy itself that it has jurisdiction to entertain a matter before allotting its precious time to hear it. No Court is allowed to confer jurisdiction on itself where none exists no matter the nature of the case before it – L.S. W. C v Sakamori Construction (Nig) Ltd 2011 12 NWLR (Pt. 1262) 569 at 595 para C – F.The Appellate Courts have held that this Court is a specialized Court. Thus, where the crux of the suit is not an employment or labour matter, this Court will not have jurisdiction to entertain it. See Skye Bank v. Iwu (supra).

Again, the provisions on the implementation of the Transaction Agreement are nowhere suggestive of issues connected or related to the jurisdiction of this Court. Clause 6 of the Agreement provides for its implementation as follows:

IMPLEMENTATION

6.1 The parties agree that following Shareholder Approval and Court Sanction and in any event, not later than the Transaction Dates, UHSL shall- pursuant to section 539(4) CAMA, promptly deliver to the CAC for registration, a certified true copy of the Court Sanction approving the Scheme,

6.2 For avoidance of doubt, it is understood and agreed, that in accordance with section 539(4) of CAMA, the Court Sanction together with the Scheme shall not have any effect, until a copy of the Court Sanction has been delivered to CAC for registration; and ASO shall be provided with evidence of such delivery by the production to it of a covering letter from UHSL addressed to the CAC, forwarding a copy of the Court Sanction, and receipt of which letter is duly acknowledged by the CAC.

Clause 7 of the Agreement provides for consideration for the Transaction Agreement. It again does not portray any form of labour or employment service which can come under the jurisdiction of this Court. It provides that:

CONSIDERATION

7.1 It is hereby agreed that following the delivery for registration of a certified true copy of the Court Sanction with the CAC (but not later than the Effective Date), and as consideration for:

7.1.1 the cancellation of the Existing Shares held by the Existing Shareholders, each Existing Shareholder (including Union Bank and other members of the Union Bank Group) shall receive from UHSL, a pro-rata portion of UHSL shares in accordance with the terms and conditions of the Scheme Document; and

7.1.2 Furnishing the investment Amount, UHSL shall issue the Scheme Shares to UHNL.”

The Claimant in the Transaction Agreement warranties as follows:

“11.2.7 the Transfer Shares shall be free from any call, lien, option, claims, third part rights or competing interest;

11.2.8 the Transfer Shares are fully paid and there are no monies or liabilities outstanding in respect of them; and

11.2.9 the Transfer Shares have been validly issued and form part of UHSL’s authorized share capital.”

All the above quoted provisions of the Transaction Implementation Agreement clearly show that this Court does not have jurisdiction over its subject matter. The issues covered in the Transaction Agreement have nothing to do with any of the subject matters over which this Court would have jurisdiction. Claimant relies on the lone reference to ‘Staff Liabilities’ in Clause 9.2.4 to argue that this Court has jurisdiction over this suit. The fact that ‘staff liabilities’ came up in the Transaction Implementation Agreement for the transfer of shares and liabilities of a company, in my view, does not call up this Court’s jurisdiction, relying on paragraph ‘k’ of section 254(C)1. Reading paragraph 9.2.4 in the context of the entire Clause 9.2 will clearly show that it does not create any rights or liabilities for staff, which can be enforced in this Court.

9.2 Union Bank

Union Bank shall:

9.2.1 retain N1, 000,000.00 (One Billion Naira) out of the

N1,604,062,930.00(One Billion Six Hundred and Four Million, Sixty Two Thousand Nine Hundred and Thirty Naira) facility which was granted to UHSL as a Long Term Loan on the terms agreed with ASO as stated in the Memorandum of Understanding;

9.2.2 write-off the balance of N604,062,930 (Six Hundred and Four Million, Sixty Two Thousand Nine Hundred and Thirty Naira) of the facility which was granted to UHSL;

9.2.3 procure that each of Union Assurance Limited, Union Trustees Limited and Union Registrars Limited retain their respective cash deposits with USHL – as of the date of this Agreement – for a period of 2 (years) from the date hereof;

9.2.4 for the purposes of UHSL settling outstanding Staff Liabilities, create a credit line for Union Homes Savings and Loans Plc. which shall be applied solely for the purposes of Staff Liabilities. Provided that the credit line shall subsequently be written off by Union Bank of Nigeria Plc.

9.2.5 be responsible for settling the outstanding Tax Liabilities of Union Homes’ which are estimated at N931,714,000 (Nine Hundred and Thirty One Million Seven Hundred and Fourteen Thousand Naira), as has been agreed with ASO of which N468,300,000 (Four Hundred and Sixty-Eight Million Three Hundred Thousand Naira) has been accrued to date. Provided that UBN shall make payment in respect of the undisputed outstanding tax obligations and will – subject to further verification and agreement – also pay any balance outstanding in respect of unpaid taxes (including Value Added Tax and Withholding Tax).

The above clause 9.2.4 (emphasised) is where Claimant hinges its argument that this matter is labour and employment related. I do not agree with the Claimant that this provision is enough to make either the transaction encapsulated in the Agreement or the parties to it, to be within the jurisdiction of this Court. I do not see how the transaction above is related to or connected with or arising from the payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, either of Claimant or the other parties to the Transaction Agreement. If there was (which it is not), then I would agree with the Defendant that the employees of Claimant, whose interests are in issue, should be the right persons to bring this action.

After considering the Claimant’s claim and reliefs sought, I do not see how the dispute bothers ‘squarely and exclusively’ on payment of terminal benefit to employees as argued by the Claimant. I am convinced that this Court does not have jurisdiction to hear this suit, as presently constituted. This suit is thereby liable to be dismissed, and is hereby dismissed.

Assuming I am wrong in holding that this Court does not have jurisdiction, then I find that originating summons is not an appropriate way to commence this action, in view of some issues arising from the Claim itself and issues raised by the Defendant. Originating summons as a process has its own peculiarities which are geared towards expeditious determination of the cause of the parties which cause is not burdened by facts that are likely to be in dispute. In the case of Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332, the Supreme Court held inter alia that originating summons is the method of commencing an action where the sole or principal question in issue is or likely to be one directed to the construction of a written law, the constitution or other document or other question of law. In other words, originating summons is used for non-contentious actions or matter.

I refer the Order 3 Rule 3 of the Rules of this Court which provides for when suits should be commenced by originating summons. It provides that:

Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria.”

In finding that this action is not one that should be commenced by way of originating summons, I have considered the following reasons:

There are no questions of construction that has been put directly before this Court, in respect of any provisions of the Transaction Implementation Agreement. Claimant brought before this Court claims for declarations and orders pursuant to a perceived provision of the Agreement. I do not find that materials have been placed before this Court to determine the sustainability or otherwise of the declarations and orders sought.
Relief 3 of Claimant’s claim has introduced the consideration of extraneous materials, which are not part of the Transaction Implementation Agreement, which the Claimant seeks enforcement. Defendant’s prayer that the Court declares that the employee severance obligation of Union Homes Savings & Loan Plc. staff includes redundancy benefits as provided in Clauses 8.11 and 8.12 of the Union Homes Savings and Loans Plc. Staff Policy Guideline of July 2007 and the judgment of this Court of 13^th July 2015 in Suit No. NICN/LA/232/2014 AdemulegunGbengaCosmas& 223 Others v. Union Homes Savings and Loans Plc.introduces elements extraneous to the Transaction Implementation Agreement before this Court.
Flowing from ‘2’ above is a query on the relationship of the parties in suit No. NICN/LA/232/2014 and the parties in this suit and the application of the judgment in the said suit, over the parties in this suit. Whatever be the case, this cannot be determined by means of originating summons.
The Defendant has posited several facts that challenge Claimants entitlement to the reliefs sought in this suit, which issues suggest that this matter cannot be determined by means of originating summons. For example, the following argument of Defendant clearly shows the inappropriateness of allowing this matter to be tried by originating summons:

It must be stated here that there is no part of the Agreement that provides that the Defendant is owing the Claimant the sum of N1,927,387,082.74 which will otherwise be binding on the Defendant. Rather, this is an amount completely strange to the Agreement and the Defendant herein. How can the Agreement now be interpreted to make the Defendant pay the sum of N1,927,387,082.74 to the Claimant? We fail to see how. There is no how this Court will give the provisions of the Agreement its ordinary meaning which will lead to the Defendant paying the sum of N1,927,387,082.74 to the Claimant. This will amount to reading into the Agreement what is not contained therein and this Court does not have the power to do so.

The above and other averments of the Defendant support ordering parties to file pleadings in this case.

As a result of all the above, I am convinced that this suit is not amenable to be decided on Originating summons. In line with Order 3 Rule 17 of the Rules of this Court which provides:

(2) Where in the opinion of the Court, a suit commenced by Originating summons raises substantial issues and dispute of facts, the Court shall not strike out the matter, but may order its conversion to Complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the Rules of the Court governing trial.

I hereby order that this suit be converted to complaint. The parties are to file and exchange pleadings, and the matter to proceed to trial thereafter, in accordance with the Rules of this Court. In view of the above holding, the need to making findings on issue three is overtaken.

In line with my initial finding that this Court lacks jurisdiction to hear this suit, this suit is hereby dismissed.

I make no order as to cost.

Judgment is entered accordingly.

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Hon. Justice Elizabeth A. Oji PhD