THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE JUDGE
DATE: 8th FEBRUARY, 2019 SUIT NO: NICN/KN/14/2018
BETWEEN
SILVER WINGS LIMITED CLAIMANT
AND
ISMA’ILA SULE DEFENDANT
REPRESENTATION: Both parties present. Ibrahim M. Boyi Esq. with Maryam Baba Ahmed for the Claimant Sani Umar, Esq. holds the brief of Tahir Bello, Esq. for the Defendant.
JUDGMENT
This is a judgment arising from the originating summons filed by the Claimant on the 5th of April 2018 in which the Claimant seeks the determination of the following questions:
- Whether the plain, ordinary and literal meaning of the judgment of his Lordship, Justice Lawal Mani in Suit No. NICN/KN/13/2015 delivered on 10th May 2017 that “Reliefs 2 and 3 partly succeed on the ground that any time outside the official working hours of the Defendant (now Plaintiff) is overtime” is that the plaintiff should pay overtime to the Defendant?
- Whether the plain, ordinary and literal meaning of the judgment of his Lordship, Justice Lawal Mani in Suit No. NICN/KN/13/2015 delivered on 10th May 2017 that “Reliefs 2 and 3 partly succeed on the ground that any time outside the official working hours of the Defendant (now Plaintiff) is overtime” means the Plaintiff should pay overtime to the Defendant despite that Reliefs No. 2 and 3 upon which the judgment was held did not contain a claim of overtime or particulars of overtime?
- Whether the Orders of his Lordship, Justice E.D.E Isele delivered on 18th day of January 2018 that “the Judgment Creditor begin forthwith to engage with Judgment Debtor on arriving at mutually agreed terms and sums of money which should constitute an appropriate sum in the dispute heads of claims from the Judgment of Mani J “was based on any holding of his Lordship Justice Lawal Mani in Suit No. NICN/KN/13/2015 delivered on 10TH May 2017 or upon any proof of overtime in the said judgment?
If the answers to the above question are in the affirmative, the Plaintiff hereby prays the Honourable Court for the following:-
- A DECLARATION that the plain, ordinary and literal interpretation of the portion of the judgment of Justice Lawal Mani that “Reliefs 2 and 3 partly succeed on the ground that any time outside the official working hours of the Defendant (now Plaintiff) is overtime” did not include any order for payment of overtime.
- A DECLARATION that the court cannot grant relief not sought for as Reliefs 2 and 3 of the claim of the Defendant in Suit No. NICN/KN/13/2015 were declaratory reliefs that the employment of the Defendant with the Plaintiff without payment of allowances and overtime and no fixed closing time was unjust, exploitative, unfair, illegal and unlawful and did not contain any claims for overtime, a different cause of action.
- AN ORDER that overtime as envisaged by law is payable for actual hours work after the closing and fixed hours of employment which ought to be proved to have worked and not any fanciful period.
- Any further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The originating summons was supported by a 32 paragraph affidavit which exhibits the said Judgment of Mani J as SWL1; together with a written address in that judgment the claims of the Claimant had been set out as follows in reliefs 2 and 3
- A declaration that the Claimant having continuously worked for the Defendant without annual leave or allowance in lieu, night/lodge, out of station and/or overtime allowances is unjust, exploitative unfair, illegal and unlawful.
- A declaration that the Claimant having continuously worked for the Defendant for a period of nineteen (19) years without fixed closing time is an abuse of a contract of employment and unfair exploitative, oppressive, illegal and unlawful.
In response the Defendant filed a counter affidavit to the Claimant’s originating summons in which the deponent averred that the Claimant’s intention was to deprive him of his overtime payment and to make him suffer after working for 19 years.
Now the main bone of contention in issue between the parties is out of the Order this Court gave on the 18th of January 2018 after setting aside the order which the C ourt made on the 6th of December 2017, that the Judgment Creditor/the Defendant herein) begin forthwith to engage with the judgment debtor on arriving at mutually agreed terms and sums of money which should constitute an appropriate sum in the disputed heads of claims in the judgment of Mani J.
I must state that the above Order was in the nature of a further Order, in essence it was ambulatory in nature to enable both parties find agreeable closure following the judgment of Mani J on the 10th May, 2017. Now, that judgment had found and held with regards to the 2nd and 3rd heads of claims (reproduced earlier) that the “Reliefs 2 and 3” partly succeed on the ground that anytime outside the official working hours of the Defendant is overtime” that this holding did not include any Order of payment for overtime. Truth must be told here: the holding of Mani J does not include an Order of payment for overtime and I do so hold, without more.
I have made the above holding having read through the affidavits and written addresses of both parties and was particularly piqued by some of the arguments. At paragraph 3.15 of the written address in support of the originating summons it was argued that: “without seeking to extend my Lord’s tentacle to other areas which are appealable,…” The Defendant at paragraph 3.7 of the written address accompanying the counter affidavit had submitted that there is nothing so ambiguous to call for interpretation of the said judgment. Here, I must state that having read through the processes, I hold that there is frankly nothing to interpret outside the Order I gave on the 18th of January 2018. If the parties were unable to find common ground on that point on what terms should constitute payable overtime as appropriate. Then this court would not be able to add or vary to that order because the holding of the Court per Mani J was declaratory in nature and did not state what amount was to be paid as overtime. And I cannot add to that other than to have tried to encourage both parties towards closure.
Finally, I hold that: One important rule of practice and procedure is that once a Court enters final judgment in a matter, it become functus officio, in effect, when a court has delivered a judgment in a matter it lacks further authority or jurisdiction to revisit the same matter. See OLADOSU V. OLAOJOYETAN (2013) I NWLR (pt 1335) 285 CA: In other words it cannot amend the judgment. What remains is the power to examine the correctness of the judgment on appeal. Here in this case I hold that the issues canvassed do not fall under the slip-rule. So, any other intractable dispute out of the judgment is best tackled on appeal. I so hold.
And so, as to the reliefs sought in the originating summons the Declaration sought in the 1st head of claim is so granted and ordered as prayed. The 2nd and 3rd reliefs are matters that I am of the view that a court sitting on appeal would definitively determine one way or the other and are hereby refused.
Judgment is entered accordingly.
_____________________________
HON. JUSTICE E. D. E. ISELE
JUDGE
