IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HER LADYSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE
DATE: OCTOBER 19, 2023 SUIT NO: NICN/ABJ/348/2022
BETWEEN
MR. JOHNSON OGBUM CLAIMANT/RESPONDENT
AND
1. THE SHELL PETROLEUM DEVELOPMENT DEFENDANT/APPLICANT
COMPANY OF NIGERIA LIMITED
2. THE MINISTER OF PETROLEUM
RESOURCES DEFENDANTS
3. NIGERIAN UPSTREAM PETROLEUM
REGULATORY COMMISSION
REPRESENTATION:
Anthony Ayaogu for the Claimant/Respondent.
Inam Wilson SAN for the 1st Defendant/Applicant, with Francis Jarigo, K.C. Omehia, and I. Nna-Ude.
Hassan Sherif for the 2nd and 3rd Defendants.
RULING
Introduction
[1] This is a Notice of Preliminary Objection dated 27th February 2023 and filed on 28th February 2023 by the 1st Defendant/Applicant. It is brought pursuant to Order 17 Rules 1, 18 Rule 2 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the Inherent Jurisdiction of the Court praying for the following:
1. An Order of this Honourable Court striking out reliefs 3 and 4 on the General Form of Complaint dated 4th November 2022 and the corresponding reliefs on the Statement of Facts dated 4th November 2022 for lack of jurisdiction.
2. An Order of the Court striking out 2nd and 3rd Defendants/Respondents (“2nd and 3rd Respondents”) from this Suit, for not being proper and/or necessary parties to this Suit.
3. And for such order or further orders as this Honourable Court may deem fit to make in the circumstances.
[2] The grounds upon which the Application is brought are as follows:
i. The National Industrial Court of Nigeria lacks subject matter jurisdiction to hear and determine relief 3 and 4 on the General Form of Complaint and the corresponding reliefs on the Statement of Facts both dated 4th November, 2022 for the following reasons:
a. the jurisdiction of the National Industrial Court of Nigeria is circumscribed by Section 254C (1) of the Third Alteration to the 1999 Constitution of the Federal Republic of Nigeria (FRN) (as amended) and Section 7 of the National Industrial Court Act 2006;
b. reliefs 3 and 4 on the General Form of Complaint are the penalties and sanctions prescribed under the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 (the “Guidelines”);
c. the power to impose penalties and sanctions under the Guidelines are administrative powers vested in the 2nd and 3rd Respondents and not judicial powers;
d. the administrative penalties and sanctions under the Guidelines are to be awarded in proper cases to and for the benefit of the 2nd and 3rd Respondents and not to the Claimant, who lacks the locus standi to sue and/or claim the benefits of such penalties and sanctions as he purports to do under reliefs 3 and 4 on the General Form of Complaint;
e. reliefs 3 and 4 on the General Form of Complaint and the corresponding reliefs on the Statement of Facts are administrative penalties and sanctions under the Guidelines and the Guidelines contemplate that they are to be awarded by the 2nd and 3rd Respondents under an administrative process and not by a court of law under a judicial proceeding;
f. Section 254(C) of the Third Alteration to the 1999 Constitution and Section 7 of the National Industrial Court Act 2006 has not conferred on this Honourable Court the jurisdiction to entertain and grant any claim or make any declaration or order in the form and nature of relief 3 and 4 on the General Form of Complaint, the effect of which will be tantamount to exercising the powers reserved for the Minister of Petroleum Resources and is not cognizable under the Guidelines.
g. it will amount to usurpation of the powers of the 2nd and 3rd Respondents and a breach of the doctrine of separation of powers for this Honourable Court to hear, determine and award reliefs 3 and 4;
h. reliefs 3 and 4 on the General Form of Complaint cannot be construed as an employee/employer dispute and none of Section 254 (C) of the Third Alteration to the 1999 Constitution and Section 7 of the National Industrial Court Act 2006 confer jurisdiction on the National Industrial Court of Nigeria to entertain, hear and determine same.
ii. the 2nd and 3rd Respondents are not proper, desirable, or necessary or indeed relevant parties to the present suit and consequently their names should be struck out from the suit for the following reasons:
a. there is no employer - employee relationship between the Claimant and the 2nd and 3rd Respondents;
b. there is no co-employer or triangular employment relationship between Applicant, the Claimant and 2nd and 3rd Defendants.
[3] The objection is supported by an affidavit deposed to by Ifunanya Nna-Ude, a Lawyer and is accompanied by a written address. In opposition, the Claimant/Respondent filed a counter affidavit sworn to by Shulammite Akpoyibo on 16th March 2023, and a written address. The parties adopted their respective addresses and made oral submissions.
Submissions of 1st Defendant/Applicant.
[4] Learned Senior Counsel formulated two issues for determination as follows:
i. Whether this Honourable Court lacks jurisdiction to entertain and determine reliefs 3 and 4 in the General Form of Complaint and Statements of Facts?
ii. Whether this Honourable Court ought to strike out the names of the 2nd and 3rd Respondents from this suit?
[5] He submitted that for a Court to have jurisdiction or competence to adjudicate over a matter the subject matter must be within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction, citing Nigerian Agip Oil Co. Ltd. v. Kemmer [2001] 8 NWLR (Pt. 716) 506 (CA) at pages 521-523, paras. E-A; Madukolu 7 Ors v. Nkemdilim [1972] 2 ANLR, 581. He submitted that the jurisdiction of a court is granted by statute or the Constitution and that no court can go beyond the provisions of the enabling law; otherwise any action by it will be ultra vires, citing Ugba v. Suswam [2013] 4 NWLR (Pt. 1345) 427. It was his submission that a fundamental principle of law is that jurisdiction is determined by the plaintiff’s claim, citing Adeyemi v. Opeyori [1976] 9 – 10 SC 31; Nonye v. Anyichie [2005] 2 N.W.L.R. (Pt. 910) 623 at p. 646C-647G.
[6] Learned Senior Counsel submitted that a claim is circumscribed by the reliefs claimed citing Gabriel Ativie v Kabelmatal Nig Ltd [2008] LPELR-591 SC. He argued that while reliefs 1, 2 and 5 fall squarely within the subject matter jurisdiction of this Court, reliefs 3 and 4 fall outside the jurisdiction of this Court. He argued that the legal rules that would apply in resolving the issue of penalty for noncompliance with the Guidelines raised by reliefs 3 and 4 are the Petroleum Act and the Petroleum (Drilling and Production) (Amendment) Regulations. That these laws are petroleum laws that regulate the activities and operations of oil and gas companies who are holders of oil mining lease, licence or permit and by no stretch of the word can they be classified as labour and employment legislation such as the labour Act. He argued that an oil mining lease, licence or permit creates a contractual relationship between the operator and the Federal Government through the NNPC which relationship is governed by the Petroleum Act, citing F.G.N. v. Zebra Energy Ltd. [2002] 3 NWLR (Pt. 754) 471 (CA).
[7] Learned Senior Counsel submitted that reliefs 3 and 4 are the administrative statutory penalties to be issued against any holder of oil mining lease, licence or permit who fails to comply with the Guidelines. That the Guideline prescribes a penalty of an amount not exceeding US$250,000 and the withdrawal or cancellation of permit, licence or lease of the Applicant which the Claimant is claiming under reliefs 3 and 4. He submitted further that the Guideline provide that the penalty is to be issued by the Director of Petroleum Resources. That it is trite that when the words of a statute are clear and unambiguous the court should construe it in its ordinary and natural meaning, citing F.G.N. v. Zebra Energy Ltd. [2002] 3 NWLR (Pt. 754) 471 (CA). Counsel argued that by stipulating that the penalty is to be issued by the Director of Petroleum Resources, the Guideline contemplates that such sanctions and penalties are to be determined by the 2nd and 3rd Respondents under an administrative process and not by a court of law under a judicial proceeding. Counsel submitted that it will amount to usurpation of the powers of the 2nd and 3rd Respondents and a breach of the doctrine of separation of powers for this Court to hear, determine and award Reliefs 3 and 4 as reliefs 3 and 4 on the General Form of Complaint cannot be construed as an employee/employer dispute.
[8] Learned counsel submitted that this Court lacks the subject matter jurisdiction to entertain any claim under the Guideline seeking to direct the 2nd and 3rd Respondents to impose penalty on the Applicant of an amount not exceeding US$250,000 and the withdrawal or cancellation of permit, licence of lease of the Applicant. He contended that a cursory look at the statement of facts, the 2nd and 3rd Defendants have not been joined as Defendants because they are employers as there is neither privity of contract nor an employment relationship between the Applicant and the 2nd and 3rd Respondents; and the Claimant and the 2nd and 3rd Respondents. He submitted that the 2nd and 3rd Respondents are not proper, desirable or necessary parties in these proceedings citing Green v. Green [1978] 3 NWLR (Pt. 61) 480.
Submission of the Claimant/Respondent
[9] Learned Counsel to the Claimant/Respondent submitted two issues for determination:
1. Does this court have the jurisdiction to hear the Claimant’s suit as constituted?
2. Whether in the circumstances of the pleadings, the 2nd and 3rd Defendants are necessary parties to this suit?
[10] He enjoined the Court to consider the following: whether this is an industrial/employment or a trade dispute; whether any other court has the jurisdiction to entertain employment disputes; whether a citizen of Nigeria can ask that penalty for non compliance to the guidelines be paid to the Nigerian Government. He referred to Order 1 Rule 10 for the definition of a trade dispute, and a worker. It was his submission that Section 254C of the 1999 Constitution confers the Court with exclusive jurisdiction to entertain this suit as the Claimant was an employee of the 1st Defendant and the dispute resulted from that employment.
[11] Learned counsel submitted that this being an employment dispute, the claimant has the locus standi to institute the suit, and the Court therefore has jurisdiction to entertain the suit. He submitted that the Claimant has a responsibility to demand compliance with the laws of his country and ensure that the benefits of the nation enure to it. He submitted that the Claimant has the locus standi to ask that the sum of $250,000 be paid to the 2nd and 3rd Defendants as the penalty for willful and negligent default in complying with the guidelines. He argued that relief 4 seeks a direction to the 2nd and 3rd Defendants to invoke their statutory powers to revoke the licenses issued to the 1st Defendant for refusal to comply with the law.
[12] Learned Counsel submitted on the issue of necessary parties stated that the Guideline requires the 1st Defendant to apply in writing to the 2nd and 3rd Defendants of their resolve to terminate the contractual employment of the Claimant. That they are both proper, desirable and necessary parties to this suit. He then urged the Court to dismiss the objection with substantive costs.
Decision
[13] I have heard the parties and considered all their submissions. The 1st Defendant/Applicant by this objection challenges the jurisdiction of the Court to hear and determine reliefs 3 and 4 on the General Form of Complaint and the corresponding reliefs on the Statement of Facts; and on the grounds that the Claimant has no locus standi to sue and /or claim the benefit of the penalties. Reliefs 3 and 4 are reproduced:
3. An Order awarding the sum of $250, 000.00 (Two Hundred and Fifty Thousand Dollars) as penalty against the 1st Defendant for failure to comply with the Guidelines.
4. An Order directing the 2nd and 3rd Defendants to withdraw and cancel all the oil mining leases, permits and licenses granted the 1st Defendant for willfully breaching The Guideline issued by the Minister for the Release of Staff in Nigeria Oil and Gas Industry 2019.
[14] The jurisdiction of this Court is conferred by section 7(1) of the National Industrial Court Act 2006, and Section 254C (1) of the 1999 Constitution as amended. Section 254C (1) of the 1999 Constitution is reproduced:
254C-(1) Notwithstanding the provisions of section 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 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;
[15] By this provision, labour and employment matters, including matters incidental thereto and connected therewith fall within the jurisdiction of this Court. Furthermore, section 91 (1) of the Labour Act CAP LFN 2004 defines a contract of employment as “any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”. It also defines an employer to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer”.
[16] I have carefully looked at the pleadings of the Claimant. This is a contract of employment in which the Claimant is challenging his disengagement from the 1st Defendant. The Claimant has in his pleadings complained that the 1st Defendant breached the 2019 Guidelines when it failed to obtain the consent or approval of the Minister of Petroleum Resources through an application to be made to the Nigerian Upstream Petroleum Regulatory Commission before his dismissal from service. The Guidelines represent government employment policy in the petroleum industry and have legislative backing in the Petroleum Industry Act (PIA) No. 134 of 2021, and the Interpretation Act; see The Shell Petroleum Company of Nigeria Limited v The Minister of Petroleum Resources & 2 Ors (unreported) Suit No: NICN/LA/178/2022; judgment delivered on 28th July 2022. The application for consent or approval through the 3rd Defendant, and the consent/approval of the 2nd Defendant are matters incidental to and connected with the Claimant’s employment and his disengagement. This is a matter that falls squarely within the purview and provisions of Section 254C (1) of the 1999 Constitution as amended, the jurisdiction conferred on this Court and its powers.
[17] Learned counsel to the 1st Defendant/Applicant has submitted that this Court lacks the subject matter jurisdiction to entertain any claim under the Guidelines seeking to direct the 2nd and 3rd Respondents to impose penalty on the Applicant and the withdrawal or cancellation of permit, license or lease of the Applicant. It is pertinent at this juncture to refer to the provisions of Section 6(6)(b) of the 1999 Constitution:
6(6) The Judicial powers vested in accordance with the foregoing provisions of this section -
(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
The submissions of learned senior counsel appear to be that the powers of the Court are ousted or curtailed in respect of the Guidelines. This cannot be in light of the provisions of Section 6 (6) (b) of the 1999 CFRN. The critical question to resolve applying section 6(6)(b) is whether there has been non compliance with the Guidelines 2019 by the 1st Defendant that has adversely affected the employment rights of the Claimant, and contravened the law for which there is liability of a penalty that inures to Government.
[18] The orders the Claimant is seeking in reliefs 3 and 4 of the Complaint are consequential orders that may be made by the Court depending on the findings of the Court at the trial. The orders sought fall within the jurisdiction and powers of this Court and therefore the Claimant has the locus standi to seek those reliefs both as an employee, and as a citizen of Nigeria in a matter of public policy and employment rights of employees in the petroleum industry; see Centre for Oil Pollution Watch vs. NNPC (2019) 5 NWLR (Pt. 1666) 518 SC, Citec International Estates vs. Francis (2021) 5 NWLR (Pt. 1768) 148 SC. Furthermore, the 1st Defendant’s prayer to strike out reliefs 3 and 4 if granted, will amount to the Court determining a substantive issue at the interlocutory stage which trial courts are enjoined not to do; see Buremoh v Akande (2017) LPELR-41565 (SC), Shanu v Afribank (Nig) Plc (2002) LPELR-3036 SC. I note particularly that the 1st Defendant’s arguments in paragraphs 4.8 to 4.23 have dovetailed into the substantive issues. They are submissions for final address.
[18] The 1st Defendant/ Applicant has submitted that the 2nd and 3rd Respondent are not proper, necessary or desirable parties to this suit and consequently their names should be struck out from the suit. The law is settled that the only reason that makes it necessary to make a person a party to an action is so that the person is bound by the result of the action. And the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party; see Green v Green (1987) 3 NWLR (Pt 61) 480, Peenok Invest Ltd v Hotel Presidential Ltd (1982) 12 SC 1, Ige v Farinde (1994) 7 NWLR (Pt 354) 42, Nweke v Nweke (2014) LPELR 23563 (CA). The questions bothering on compliance with the Guidelines 2019, the consent and approval of the Minister Of Petroleum Resources before the disengagement of the Claimant cannot be effectually, and completely settled in the absence of the 2nd and 3rd Defendants. The 2nd and 3rd Defendants are therefore proper and necessary parties to this suit.
[19] The Court has jurisdiction to entertain the entirety of the Claimant’s suit and all the reliefs sought. I rule that the Claimant has locus standi to sue. This objection is dismissed. Costs of N50,000.00 awarded the Claimant.
Ruling is entered accordingly.
_____________________________
Hon Justice O. A. Obaseki-Osaghae
