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: MAY 2, 2024                                            

 SUIT NO: NICN/ABJ/CS/289/2023

 

 

BETWEEN                                

MR. DENIS UYI IRIOGBE                                                                 CLAIMANT

             

AND

THE HIGH COMMISSION OF INIDIA

(ABUJA NIGERIA)                                                                              DEFENDANT                                                                                                                                                 

REPRESENTATION

Jenifer Ben Agande for the Claimant.

Chief Kanu G. Agabi (CON), SAN for the Defendant, with Mary Francis Orji, Augustin Okpotu, Mary Igoh, Gertrude Njar, Emmanuel A. Agabi.

 

RULING

Introduction and claims

[1] The Claimant filed this Complaint on 24th October 2023 against the Defendant seeking the following reliefs:

a)     A Declaration that the disengagement of the Claimant by the Defendant without appropriate recourse to the relevant stipulations of the Claimant’s employment contract document as well as the dictates of fair hearing is unlawful, null and void.

 

b)    An Order setting aside the Defendant’s letter of termination of the employment of the Claimant, with Ref. No-HCI/ABUJ/579/02/2020 signed by the Head of Chancery of the Defendant on 20th July, 2023.

 

 

 

c)     An Order directing the Defendant to reinstate the Claimant forthwith with all unpaid salary arrears, OR IN THE ALTERNATIVE, an ORDER directing the Defendant to pay adequate compensation to the Claimant in the sum of $150, 000.00 (One Hundred and Fifty Thousand Dollars) for the hardship, humiliation and general inconveniences occasioned on the Claimant by the wrongful termination of the Claimant’s employment by the Defendant.

 

d)    An Order directing the Defendant to pay up to date, the Claimant’s unpaid salaries at the rate of $739.00 (Seven Hundred and Thirty Nine Dollars) per month, from last paid month being June, 2023 to the date of reinstatement of the Claimant or to the date of complying with the alternative Order of compensating the Claimant in lieu of reinstatement.

 

e)     An Order mandating the Defendant to pay 10% post Judgment interest per annum of any Judgment sum in this suit until the total Judgment sum is fully liquidated.

[2] The Defendant entered a conditional appearance on 23rd November 2023, and filed a statement of defence together with the accompanying processes on 18th December 2023. On 19th January 2024, the Defendant filed a Motion on Notice which is brought pursuant to Order 17 Rules 4, 5, 6 of the (Civil Procedure) Rules of this Court seeking for:

1.     An Order of this Honourable Court striking out this suit or dismissing same in limine, for lack of jurisdiction.

 

2.     And for such orders or further order (s) as this Honourable Court may deem fit to make in the circumstances.

[3] The grounds upon which the application is predicated are as follows:

1.      The Defendant in this suit is a Representative Office of the Government of India in Nigeria, which is protected by the Immunities and Privileges Act 1962.

 

2.      The Defendant by virtue of being a representative of a Sovereign State is immune from civil suit.

 

3.      The Defendant in this Suit has not at any time waived its immunity, thus this Court has no jurisdiction over it.

 

 

 

 

4.      Clause 13 of the Labour Contract entered between the Claimant and the Defendant stipulates that disagreements are to be settled under Indian laws and not according to the local laws of Nigeria.

[4] The Motion on Notice is supported by an affidavit sworn to by Chijioke A. Igwe Legal Practitioner in the Law Office of Kanu G. Agabi & Associates, to which is annexed one exhibit marked ‘A’ and a written address. In opposition, the Claimant filed a counter affidavit sworn to on 20th March 2024, and a written address dated 15th March 2024. The Defendant in reaction filed a further and better affidavit also sworn to by Chijioke A. Igwe on the 26th March 2024, and a reply on points of law dated 22nd March 2024.

 Submissions By Parties

Defendant

[5] The Defendant/Applicant submitted one issue for determination:

Whether this suit is not incompetent and this Honourable Court divested of the jurisdiction to entertain same?

[6] Learned Senior Counsel submitted that this action has been commenced in contravention of the clear and unambiguous provisions of Sections 1, 11 and 15 of the Diplomatic Immunities and Privileges Act 1962; and that the provisions entitle the Defendant to diplomatic immunity unless there is a valid waiver to the contrary which is not present in this case.  He further submitted that the first Schedule to the Act provides for immunities and privilege of international organizations and immunity from suit and legal process citing Siewe v Cocoa Producers Alliance [2013] LPELR-22033 (CA); Oluwalogbon & Ors v The Government of United Kingdom & Anor [2005] LPELR– 11319 (CA).  He argued that a sovereign state enjoys immunity against law suits of this nature filed against the Defendant, and that immunity can only be waived by the sovereign when it submits itself to the jurisdiction of the court and cited Peenok Investments Ltd v Hotel Presidential Ltd [1982] LPELR–2908 (SC).  It was his submission that without the waiver of its right to immunity, this Court is deprived of the requisite jurisdiction to entertain the suit.

[7] Learned Senior Counsel argued that in order to invoke the judicial powers of the Court, compliance to basic conditions for the assumption of jurisdiction must be observed having regard to the provision of Section 6 (6) (b) of the 1999 Constitution Nigeria (as amended). And that the three principles stated in Madukolu v Nkemdilim [1962] All NLR 587 at 595 which must coexist are: the court must be properly constituted, the

 

subject matter must be within the jurisdiction of the court and there is no feature in the case which prevents the Court from exercising its jurisdiction, the case comes before the Court initiated by the due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction. He submitted that once this threshold requirement is not met, the Court must shut out the suit; and that in this instance the Claimant has approached the Court in clear disobedience to constitutional requirements. It was his submission that the duty of the Court is to dismiss the suit without a trial.

[8] Learned Senior Counsel submitted that the labour contract between the parties is governed by law whose application does not extend to the jurisdiction of this Court, and that parties are bound by the terms of their contract. He cited CAC v Jude Elswitch Ltd [2016] LPELR– 41217 (CA); West African Offshore Ltd. v Ariri [2015]18 NWLR (Pt. 1490) 177. He submitted that the Court is statutorily deprived of jurisdiction to entertain this suit by virtue at the Diplomatic Immunities and Privileges Act 1962 and that jurisdiction cannot be conferred on the Court. He argued that the circumstances in this suit creates an exception to the provisions of Order 18 Rule 2, (2) and (3) of the Rules of Court 2017 which stipulates that a motion challenging the jurisdiction of the Court should be heard along with the substantive suit. He then urged the Court to strike out/dismiss the suit without a hearing.

Claimant

[9] Learned Counsel to the Claimant adopted the issue formulated by the Defendant. He began by raising a preliminary issue that the deponent to the Defendant’s supporting affidavit said to be a legal practitioner did not affix his seal to the affidavit, his name is not on the list of counsel in any of the defence processes filed and so he has no personal knowledge of the facts he deposed to. He then urged the Court to treat the affidavit in support of the motion as hearsay evidence prohibited under section 37 and 38 of the Evidence Act, 2011.

 [10] Learned Counsel submitted that this suit is competent and the Court is not in any way divested of the jurisdiction to entertain same.  He submitted that the competency of a suit is ascertained from the originating process and stated that the Claimant did not sue any individual diplomat or members of families, official or domestic staff of any diplomat, neither is the suit against any international organization to warrant the Defendant’s reliance on Sections 1, 11, and 15 of the Diplomatic Immunities and Privileges Act 1962 to contest the competency of the suit.  He argued that a party who contracts in a commercial transaction or labour employment and on the basis of which services were rendered by the other contracting party cannot turn around to seek

 

avoidance of liability in same contract citing B. B. Apugo & Sons Limited v Orthopedic Hospital Management Board [2016] LPELR- 40598 (SC).

[11] Learned Counsel contended that the Defendant secured the services of the Claimant who kept to his own side of the obligations, and that the Defendant High Commission of India Abuja cannot look for a shade by bringing in the State of India as only parties to a contract can enforce it. That a contract cannot be enforced by a person who is not a party to the contract citing Kano State Oil and Allied Products Ltd v Kofa Trading Company Ltd [1996] LPELR – 1658 (SC), Ezeafulukwe v John Holt Ltd  (1996) LPELR-1196 (SC). He submitted that in University Press Ltd v I.K. Martins (Nig) Ltd [2000] LPELR- 3421 (SC), the Supreme Court held that under the rule of private international law, an action can only be properly brought under the jurisdiction of the Court where the cause of action arose within the state or where the Defendant resides or carries on business in the State. He submitted that jurisdiction is conferred by the constitution or statute and parties cannot by contract oust the jurisdiction of the Court, citing SCOA Nigeria Plc v Sterling Bank Plc [2016] LPELR – 405566 (CA), Galadima v Tambai [2000] 6 SC (Pt. 1) 196; African Newspaper of Nigeria v Federal Republic of Nigeria (1985) 2 NWLR (Pt 6) 137.

[12] He submitted that the attempt and intent of the Defendant to take refuge in an ouster clause in the labour contract to disentitle the Claimant is against public interest and he cited Onwuta v State of Lagos (2022) LPELR-57962 SC, SCOA Nig Plc v Sterling Bank Plc supra. He urged the Court to dismiss the Motion on Notice and hear the matter on the merit.

 Reply on point of law

[13] Learned Senior Counsel submitted that the Claimant/Respondent having not referred this Court to any judicial authority in support of his  preliminary issue against affidavit is a pointer that there is no law that stops a lawyer whose name is not listed on the process but who has personal knowledge of the  facts of the case by virtue of being part of the legal team from deposing to an affidavit in support of an application, citing MVS ARAZ v SCHEEP [1995] 5 NWLR (Pt. 447) 207 CA. That a person seized of the facts of the case can depose to an affidavit on behalf of a party to the action.

[14] He submitted that the law is trite that without state or sovereign immunity, diplomatic and consular immunity would not arise. That it is the protection the State enjoys that is extended to such officers and organisations that serve the State in another State which recognizes its immunity and which agrees that same be extended to its officers and organization as well, citing Siewe v Cocoa Produceer Alliance supra. He

 

further submitted that it is an established rule of international law that no action in personam can be brought against a foreign sovereign State or its department, even when it is involved in a commercial venture.

Decision

[15] I have carefully considered the application, submissions, authorities cited by the parties and the affidavit evidence. I will begin with the preliminary issue raised by learned defence counsel that the affidavit in support of the Motion does not have the NBA seal of the deponent; that it is hearsay evidence because the deponent who is a legal practitioner does not have his name listed on the processes. The failure to affix the seal on the affidavit simply renders it improperly signed. The affidavit is not invalid or null and void and is properly signed by simply affixing the seal on the directives of the Court, see Yaki v Bagudu (2015) NWLR (Pt 1491) 288. Chijioke A. Igwe is to affix his seal to the affidavit. It is not a requirement of the law and practice that every counsel in chambers must have his/her name listed on the processes filed in Court for a client/litigant. It would be ludicrous to expect the firm Kanu G. Agabi with over 34 lawyers (deposed to in paragraph 6 of the further affidavit) to list the names of all counsel in court processes. The deponent has complied with the provisions of Section 115 (1), (3), and (4) of the Evidence Act in the supporting affidavit. Section 115  (1), (3), reproduced thus:

(1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.

(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.

[16] The deponent to the supporting affidavit is a counsel in the chambers representing the Defendant. He is in a position to have personal knowledge of the facts and he has stated that where any fact derives from any source other than his personal knowledge he shall expressly state so. He has the consent and authority of the Defendant and his employer to depose to the affidavit. I rule that there is no hearsay evidence in the affidavit in support of the Motion.

 

[17] The issue of jurisdiction raised by the Defendant is a fundamental and threshold issue. Jurisdiction is the authority of the Court to adjudicate over the questions that gave rise to the cause of action. It is a fundamental and threshold issue being the life-blood and bedrock of all trials. No matter how well conducted the proceedings and judgments of a Court are, they become a nullity and an exercise in futility where it is shown that the Court lacks jurisdiction to entertain the action, see Okolonwamu v. Okolonwamu (2019) 9 NWLR (Pt 1676) 1 at 21; GTB v Toyed (Nig) Ltd (2016) LPELR-4181 (CA); Odom v. P.D.P (2015) 6 NWLR (Pt 1456) 527 at 548. A Court is only competent to entertain a case when the subject matter of the case is within its jurisdiction, there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by the due process of law upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v Nkemdilim (1962) NSCC 374 at 379-380, Duru v Yunusa (2010) 10 NWLR (Pt. 1201) 80 at 101-102, Hope Democratic Party v Obi (2011) 12 MJSC 67.

[18] The jurisdiction of the Court is challenged by the Defendant on the grounds of immunity from suit and legal process based on the provisions of the Diplomatic Immunities and Privileges Act 1962; and this must first be determined by the Court, A-G Lagos State v Dosunmu [1989] 3 NWLR (Pt. 111) 552 SC, Messrs N.V Scheep v The M.V “S. Araz” [2000] 12 SC (Pt. 1) 164].

[19] The principal law in Nigeria governing immunities and privileges is the Diplomatic Immunities and Privileges Act CAP D9 LFN 2004. Section 1, 11 (1), and 11 (2) (a) provide as follows:

1. Immunities of foreign envoys, etc.

(1) Subject to the provisions of this Act, every foreign envoy and every foreign consular officer, the members of the families of those persons, the members of their official or domestic staff, and the members of the families of their official staff, shall be accorded immunity from suit and legal process and inviolability of residence and official archives to the extent to which they were respectively so entitled under the law in force in Nigeria immediately before coming into operation of this Act.

11. Immunities, etc., of certain international organizations, etc.

(1)  This section shall apply to any organisation declared by the Minister by Order to be an organisation the members of which are sovereign powers (whether

 

 

foreign sovereign powers or Commonwealth countries) or the government

or governments thereof.

 

(2)  The Minister may, from time to time, by Order in the Federal Gazette –

(a) provide that any organisation to which this section applies (hereinafter referred to as “the organisation”) shall, to such extent as may be specified in the Order, have the immunities and privileges set out in the First Schedule to this Act, and shall also have the legal capacities of a body corporate;

[First Schedule.]

                  (b) Confer upon –

(i)               Any persons who are representatives (whether of governments or not) of  any organ of the organisation or at any conference convened by the organisation or of any organ thereof;

(ii)            Such officers or classes of officers of the organisation as are specified in the Order, being the holders of such high offices in the organisation as are so specified;

(iii)          Such persons employed on missions on behalf of the organisation as are specified in the Order,

To such extent as are specified in the Order, the immunities and privileges specified in the Second Schedule to this Act;

[20] The Defendant has in the supporting affidavit deposed to the fact that it is a Representative Office of the Government of India in Nigeria; and enjoys immunities and privileges including immunity from civil suit and/or criminal prosecution and has not waived its right to immunity. In this regard, the Defendant entered a conditional appearance on 23 November 2023. I find from the conditional appearance entered that the Defendant has not waived its immunity from suit and legal process. The law is settled that any legal proceedings brought against a person, body or authority entitled to diplomatic immunity are proceedings without jurisdiction and are null and void, unless and until there is a valid waiver which could bring the proceedings to life and invest the Court with jurisdiction, Africa Reinsurance Corporation v Fantaye (1986) 3 NWLR (Pt 32) 831; Alhaji Kehinde Oluwalobgon & Ors v The Government Of United Kingdom & Anor (2005) 14 NWLR (Pt 946) 760; (2005) LPELR-11319 (CA); African Reinsurance Corporation v JDP Construction (Nig) Ltd [2007] 11 NWLR (Pt. 1045) 224, Siewe v Cocoa Producers Alliance (2013) LPELR-22033 (CA)

[21] In other words, under the prevailing law the Defendant cannot be impleaded in the domestic Court of a host country, see also President Of The Commission Of

 

Ecowas v Ndiaye (2021) LPELR-53523 (CA); Mr Ibrahim Toure v African Finance Corporation (Unreported) Suit No: NICN/LA/126/2015 Ruling delivered 8 February 2016, Maimouna Tall v African Ministers Council On Water (unreported) Suit No: NICN/ABJ/173/2022 Ruling delievered April 17, 2023.  I rule that the Defendant is a representative of a Sovereign State and is protected and immune from a civil suit under the Diplomatic Immunities and Privileges Act.

[22] The Labour contract (exhibit A) the Claimant relies on expressly states that any grievances by the Claimant will be settled according to the Government of India rules and regulations and not according to the local laws of Nigeria. The law is settled that parties are bound by the terms of their agreement, Isheno v Julius Berger Nig Plc (2008) 2-3 SC II at 78, Amodu v Amode [1990] LPELR-466 (SC). The labour contract is governed by laws of India whose application does not extend to the jurisdiction of this Court.

[23] On the whole, the Court lacks the jurisdiction to entertain this suit. The only proper order to make is one of a dismissal. The case is hereby dismissed. Each party is to bear its own costs.

[24] Ruling is entered accordingly.

 

                                                ______________________________

                                                Hon Justice O. A. Obaseki-Osaghae