IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: FEBRUARY 16, 2018                                                       

 SUIT NO. NICN/LA/173/2017

 

BETWEEN

Alozie Chimezirim Manasse                                             -                                                Applicant

 

AND

  1. Sterling Bank Plc
  2. Economic and Financial Crimes Commission -                                           Respondents

 

REPRESENTATION

  1. Ehiemere, for the applicant.

Adisa Oluwole, for the 1st respondent.

No legal representation for the 2nd respondent.

 

RULING

  1. In the matter of an application for an order for the enforcement of his fundamental rights and in the matter of Fundamental Rights (Enforcement Procedure) Rules 2009, the applicant took up an originating motion of 6th April 2017 pursuant to sections 34 - 37, 40, 41, 46 and 254C(1)(d) of the 1999 Constitution, Order II Rules (1) - (5) of the Fundamental Rights Enforcement Rules 2009 and the inherent jurisdiction of this Court, praying the Court for the following reliefs:
  • A declaration that the invitation, unlawful arrest, detention, harassment, public disgrace, humiliation, and intimidation of the applicant by the respondents, their agents, servants and privies is unconstitutional, unlawful, illegal, wrongful, null and void in that same constitutes violations of the applicant’s fundamental rights.
  • An order of perpetual injunction restraining the respondents, their agents, servants and privies form further arresting, threatening harassing, humiliating and intimidating the applicant on issues and facts raising from and connected with the matter set out in the statement of facts herein.
  • N50,000,000.00 (Fifty Million Naira) being damages from the respondents for the aforesaid illegal and unconstitutional violation of the applicant’s right.
  • An order for the publication of an apology by the respondents in two (2) National Newspapers for their wrongful and illegal acts.
  • And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

 

  1. At the Court’s sitting of 1st June 2017, the Court noted that the applicant came by way of the Fundamental Rights (Enforcement Procedure) Rules and is claiming reliefs relating to unlawful arrest and detention as well as damages for same infractions. That the question is whether this Court has jurisdiction over the applicant’s claims; and even if it has, whether this suit is competently before this Court given that it was commenced vide the Fundamental Rights (Enforcement Procedure) Rules. Parties, starting with the applicant, were asked to file and serve their respective written addresses. The applicant’s written address was filed on 29th June 2017; while the 1st respondent’s was filed on 10 August 2017. The 2nd respondent did not enter any appearance and did not file any written address either.

 

  1. The applicant submitted a sole issue for determination: whether considering the circumstances of this case, this Court has the jurisdiction to entertain the matter. To the applicant, the provisions of the 1999 Constitution, the National Industrial Court (NIC) Act 2006 and the Fundamental Rights (Enforcement Procedure) Rules 2009 empower this Court with exclusive jurisdiction in civil causes and matters arising out of section 254C(1)(d) of the 1999 Constitution. The applicant went on ta the facts of this case in terms of the alleged violation of the fundamental rights of the applicant occurred in the course of employment/labour relation between the 1st respondent and the applicant; and that the 2nd respondent acted at the instance of the 1st respondent still in the course of employment/labour relation between the applicant and the 1st respondent. That the alleged violation of the applicant’s fundamental right is within the purview of interpretation and application of the provisions of Chapter IV of the Constitution. Furthermore, that the dispute arose from a trade dispute between the applicant and the 1st respondent, which led to the violation of the applicant’s fundamental right with entire involvement of the 2nd respondent who worked hand-in-hand with the 1st respondent, referring to NUT, Niger State v. COSST, Niger State [2012] 10 NWLR (Pt. 1037) 89 at 98 and 99 in terms of the essential ingredients of a trade dispute. That a community reading of the definition of a trade dispute within the meaning of section 48(1) of the Trade Disputes Act (TDA) and section 254C(1)(d) of the 1999 Constitution will show that this Court has jurisdiction over this suit. The applicant then cited a number of case law authorities which stress the exclusivity of the jurisdiction of this Court including section 243(2), which allows appeal from this Court to the Court of Appeal regarding questions relating to Chapter IV of the Constitution. To the applicant section 243(2) presupposes that for such an appeal to be allowed means that this Court has jurisdiction over the fundamental right issue in the first place, citing Ekong v. Oside [2005] 9 NWLR (Pt. 929) 102 at 115.

 

  1. The applicant went on that since the cause of arose from an employer-employee relationship between the 1st respondent and the applicant, the Court with exclusive jurisdiction to hear the matter is this Court. Furthermore, that section 254D(1) of the 1999 Constitution has by implication included this Court in the list of Courts conferred with jurisdiction over fundamental rights violation issues. The applicant then submitted that this Court is now conferred with jurisdiction over matters that border on fundamental rights emanating from employment, trade and labour related matters as it is in the instant case. On the cessation of jurisdiction of High Courts over labour related causes and matters, the applicant referred to section 11(1) of the NIC Act 2006. The applicant concluded by urging the Court to hold that i has jurisdiction over this suit.

 

  1. The 1st respondent also submitted a sole issue for determination: whether this Court has jurisdiction to entertain this suit. To the respondent, this Court has no jurisdiction to entertain this suit given the subject matter of the suit, which has to do with allegations of unlawful arrest, detention, harassment, public disgrace among others, allegedly perpetrated by the 2nd defendant on the applicant at the instigation of the 1st respondent. hat this has nothing to do with the scope of the jurisdiction of this Court as contained in section 245C of the 1999 Constitution. That actions allegedly carried out by the 2nd respondent as a law enforcement agent of government, are not part of the actions contemplated by section 254C of the 1999 Constitution. That section 254C(1)(d), which the applicant placed reliance on relates to enforcement of fundamental rights as it relates to issues of employment, labour, industrial relations, trade unionism, employer’s association among other related matters. That it does not cover alleged actions of law enforcement agency against and individual even if such action were alleged to be instigated by the individual’s employer as in this case. In any event, that section 254C(1)(d) is limited to interpretation and application of the provisions of Chapter IV of the Constitution as it relates to issues of employment, labour, industrial relations, trade unionism and employer’s association. Thus, that unlike the High Courts, this Court does not have jurisdiction in human rights when approached for enforcement of any right to which the person who makes the application may be entitled under Chapter IV. The 1st respondent then submitted that the applicant cannot apply to this Court for the enforcement of his fundamental rights as this Court does not have the jurisdiction to grant such an application, urging the Court to strike out the suit for want of jurisdiction.

 

  1. Like I pointed earlier, the 2nd respondent did not enter any appearance or file any reaction.

 

COURT’S DECISION

  1. Two issues present themselves for determination: whether the applicant is right in coming to this Court under the Fundamental Rights (Enforcement Procedure) Rules; and whether the claim for “the invitation, unlawful arrest, detention, harassment, public disgrace, humiliation, and intimidation of the applicant by the respondents”, assuming the applicant is appropriately before this Court, is one that falls within the jurisdiction of this Court. To take the first issue first, the question is whether this Court is contemplated under the Fundamental Rights (Enforcement Procedure) Rules, 2009. On this issue, I had previously held that section 254C(1)(d) of the 1999 Constitution cannot be used as the basis of filing claims under the Fundamental Rights (Enforcement Procedure) Rules. See Comrade (Evang.) Olowo Preye Grace v. PENGASSAN & 3 ors unreported Suit No. NIC/EN/10/2011 delivered on July 5, 2011 and Alhaji Lateef Akinsola v. NURTW & ors [2013] 33 NLLR (Pt. 96) 399 NIC. And there are Court of Appeal decisions that have pronounced on the inappropriateness of filing under the Fundamental Rights (Enforcement Procedure) Rules issues of labour especially wrongful dismissal or termination or suspension since this belongs to a different class of action from actions on contravention or threatened contravention of a fundamental right. These cases have held that when, therefore, an application is brought under these Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement thereof should be the main claim and not an accessory claim. These cases stressed that only a breach of any of the fundamental rights guaranteed in the Constitution can be enforced under the procedure. See Hon. Justice E. I. Isuama v. Gov., Ebonyi State & ors [2006] 6 NWLR (Pt.975); [2005] LPELR-7505(CA), Musa Hammawa Abba v. JAMB & anor Suit No: CA/YL/7/2013, the judgment of which was delivered on 4th December 2014, ACB Ltd v. Ufondu [1997] 10 NWLR (Pt. 523) 169 CA and West African Examination Council v. Akinola Oladipo Akinkunmi [2008] 4 SC. The more recent decision in SSAUTHRIAI v. Olotu [2016] 14 NWLR (Pt. 1531) 8 at 18 is even more forceful in disallowing in the NIC any matter filed under the Fundamental Rights (Enforcement Procedure) Rules. The Court of Appeal relying on section 46(1), (2) and (3) of the 1999 Constitution, had this to say:

It is clear, therefore, that the National Industrial Court…has limited jurisdiction on disputes relating to the provisions of Chapter IV of the said Constitution. This is because of the clear and unambiguous provisions of section 254C(1)(d) of the amended Constitution…

 

In a limited sense, therefore, the jurisdiction of the National Industrial Court is only in respect of disputes over the interpretation and application of the provisions of Chapter IV of the Constitution and not the enforcement of the rights specified under the Chapter.

 

The National Industrial Court has no jurisdiction to hear and determine the appellant’s originating application for the enforcement of their specified fundamental rights as enshrined in Chapter IV of the Constitution…

 

  1. It should be noted, as stressed in SSAUTHRIAI v. Olotu, that section 46(1) of the 1999 Constitution, as amended, talks of “any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress”. By this provision, the application is to be to a High Court for purposes of section 46 of the Constitution and the Rules made there under. Section 46(2) talks of the High Court having original jurisdiction to hear and determine any application made to it in pursuance of the provisions of section 46 itself. And by Order I Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, “High Court” means the Federal High Court or High Court of a State or the High Court of the Federal Capital Territory. The point is that the NIC is not a High Court.

 

  1. The tenor of of the applicant’s submissions (oral and written) suggests a confusion of thought between process and remedy. The fact that an action cannot be commenced in this Court vide the Fundamental Rights (Enforcement procedure) Rules does not mean that the claimant is without a remedy. To start with, even for the infringement of a fundamental right, there is nothing in principle forbidding the recourse to the courts through normal processes. See University of Ilorin & anor v. Idowu Oluwadare [2006] LPELR-3417(SC); [2006] 14 NWLR (Pt. 1000) 751; [2006] 6 - 7 SC 154 and NUT & ors v. COSST & ors [2005] LPELR-5953(CA); [2006] NWLR (Pt. 974) 590. When section 254C(1)(d) of the 1999 Constitution, for instance, provided that the NIC shall have jurisdiction over matters “relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the 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”, the exercise of this jurisdiction over any issue under Chapter IV as may be applicable cannot be under the Fundamental Rights (Enforcement Procedure) Rules. This is not to say that the complainants here would go without a remedy. The remedy here is to sue through the normal court process of either a complaint or writ of summons, as the case may be. For emphasis, however, having to make a claim i.e. sue under the Fundamental Rights (Enforcement Procedure) Rules and having to get a remedy (at the end of the suit) howsoever the case was activated/originated are two distinct things. The Fundamental Rights (Enforcement Procedure) Rules is so much about process, not necessarily remedy. That one cannot file under the said Rules does not mean one has no remedy. The remedy can be accessed through other processes such as the writ of summons or complaint.

 

  1. The argument of the applicant that the dispute in issue arose from a trade dispute between him and the 1st respondent, which led to the violation of the applicant’s fundamental right with entire involvement of the 2nd respondent who worked hand-in-hand with the 1st respondent is misplaced as there cannot be a “trade dispute” between an individual with his employer. By definition, a trade dispute is a collective labour dispute, not an individual labour dispute. There cannot, therefore, be a trade dispute between the applicant and the 1st respondent. See Chemical & Non-Metallic Products Senior Staff Association v. Benue Cement Co. Plc [2005] 2 NLLR (Pt. 6) 446, Mr. Godwin Tosanwumi v. Gulf Agency Shipping Nigeria Limited unreported Suit No. NIC/18/2006 the ruling of which was delivered on 14th June 2007 and Kola Olutomilayo v. The AG of the Federation & anor [2015] 62 NLLR (Pt. 217) 214. In presenting that argument, the applicant simply does not understand the meaning/concept of trade dispute; except if the applicant simply lacks what submission to make, clinging on that submission as some sort of last straw.

 

  1. It is also the argument of the applicant that because section 243(2) of the 1999 Constitution allows appeals from this Court to the Court of Appeal regarding questions relating to Chapter IV of the Constitution, that presupposes that this Court has jurisdiction over the fundamental right issues in the first place. Once again, I think that there is some misunderstanding here on the part of the applicant. The right of appeal against the decisions of this Court on matters as to fundamental right permits litigants to appeal against the decisions of this Court on anything that affects Chapter IV of the Constitution. That right of appeal is not in respect of matters filed under the Fundamental Rights (Enforcement Procedure) Rules. After all, section 245C(1)(d) of the Constitution allows this Court to interpret and apply issues as to Chapter IV in terms of the jurisdiction of the Court. A classic case/example is freedom of association under section 40 of the Constitution, wherein the right to trade unionism is also provided for.

 

  1. It is the further argument of the applicant that because section 254D(1) gives this Court the powers of the High Court, this Court by implication has jurisdiction over fundamental rights violation issues. To start with, the law is that jurisdiction is not implied; it must be specifically conferred. See Ijeoma v. Petromed Oil Nig Ltd & ors [2009] LPELR-8420(CA), which held that jurisdiction or power of a court must be expressly provided and is not a matter or issue of inference. Secondly, there is a world of difference between jurisdiction and power. In Ajomale v. Yaduat & anor [1991] LPELR-305(SC); [1991] 5 NWLR (Pt. 191) 257; [1991] All NLR 197; [1991] 5 SC 200, Karibi-Whyte, JSC held thus:

Jurisdiction is not to be equated with powers. Whereas jurisdiction is the right in the court to hear and determine the dispute between the parties, the power in the court is the authority to make certain orders and decisions with respect to the matter before the court. This is clearly implied by the provisions of section 6 of the Constitution 1979 which prescribed the power of courts and in Chapter VII on the judicature, where the jurisdiction of the courts have been prescribed…

By Manya v. State [2012] LPELR-15185(CA), jurisdiction is sine qua non for the existence of power to adjudicate on a matter; alternatively put, jurisdiction is a fundamental gateway to an assumption of power. Even the manner in which section 254D(1) is couched captures all of this: “For the purpose of exercising any jurisdiction conferred upon it by the Constitution or as may be conferred by an Act of the National Assembly, the National Industrial Court shall have all the powers of a High Court”. This Court must first have jurisdiction before it can claim the powers of the High Court. As it is, therefore, I find and hold that the applicant cannot come to this Court vide the Fundamental Rights (Enforcement Procedure) Rules as he has presently done. This being so, the suit is incompetent ad liable to be stuck out.

 

  1. Assuming the applicant is appropriately before this Court, which I already held he is not, I will now turn to the second issue as to whether the subject matter of the reliefs of the claimant can be heard by this Court. Here, the applicant’s claim is one for “the invitation, unlawful arrest, detention, harassment, public disgrace, humiliation, and intimidation of the applicant by the respondents”. This Court has over time held that it has no jurisdiction over trespass to person. For instance, in Geoffery v. Setraco Nigeria Ltd & ors unreported Suit No. NIC/ABJ/296/2012, the ruling of which was delivered on 4th March 2013, an applicant was assaulted by fellow workers or superior officers and verbally abused. This Court declined jurisdiction to entertain the matter under section 254C(1)(d) of the 1999 Constitution. See also Francis v. Bedebede & ors [2012] 26 NLLR 38. In like manner, the Courts have held that employment cases are inappropriate for ventilating grievances as to reputation, feelings, etc. See Agbo v. CBN [1996] 10 NWLR (Pt. 478) 379 CA, Baba v. Nigerian Civil Aviation Training Centre [1986] 5 NWLR (Pt. 42) 514, Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 SC and Onwuneme v. ACB Plc [1997] 12 NWLR (Pt. 513) 150 CA. Quite rightly then, Bamidele Aturu (of blessed memory) in his book, Law and Practice of the National Industrial Court (Hebron Publishing Co. Ltd: Lagos), 2013 at 25 remarked thus: “The fact that the right of a person is infringed in the workplace is not sufficient to confer jurisdiction on the court except an employment issue is involved”. On this score, the applicant's suit is incompetently before this Court. I so find and hold. On the whole, and for the reasons given, this suit is incompetently before this Court. It is accordingly struck out.

 

  1. Ruling is entered accordingly. I make no order as to cost.

 

……………………………………

Hon. Justice B. B. Kanyip, PhD