Employment Is Governed By The Contractual Agreement Of The Parties if any---Justice Sanusi Kado

• 1890 Thursday 12th July 2018

 

 

Abuja---His Lordship, Hon. Justice Sanusi kado of the National Industrial Court of Nigeria, Abuja Judicial Division on Thursday 14th July 2018 in a ruling dismissed preliminary objection for not being meritorious in a case of THADDEUS AKPENE V. BN STAFF MULTIPUPOSE      COOPERATIVE SOCIETY LTD and 2 others (Defendant/Applicant).

 

Upon being served with the originating processes commencing this Suit the Defendants/Applicants vide Notice of Preliminary Objection dated 21/2/2018 pray this Honourable Court to strike out this Suit for being incompetent on The ground that this suit was not commenced by due process of law, the Claimant having failed to fulfil the Conditions precedent by embrassing the constitutionally provided avenues for the resolution of dispute as contained in the Bye-law of the 1^st Defendant/applicant.

 

The cruse of the averments is that the Claimant is a member of the 1^st Defendant/Applicant with Coop number 6373.  That the Bye-law of 1^st Defendant/Applicant makes provision for settlement of dispute between the 1^st Defendant/Applicant and its member.  That the Claimant did not comply with provision of settlement of dispute before instituting this suit therefore  rob this Court of the competence and jurisdiction to adjudicate this suit ab initio. 

 

Counsel submitted that the failure of the Claimant to meet the condition precedent before instituting this case is fatal to his case and rendered the suit incompetent and deprives this Court of its jurisdiction to entertain same and such a case/suit is entitled to be struck out, on this contention

 

According to the Claimant, the Bye-law given to him upon his employment by the 1^st Defendant did not make any provision mandating the Claimant as a staff of the 1^st Defendant/Applicant to first refer his dispute with the 1^st Defendant to management committee who are in the first instance responsible for the suspension of the Claimant.

 

After reviewing the argument, processes filed and the submissions of learned Counsel for both parties, the Court Presided by Hon. Justice Sanusi Kado maintained that law which prescribes condition that have to be fulfilled or complied with before a person can commence or institute legal proceedings against anybody or person does not constitute a denial to access to the court by anyone wishing to do so and is not unconstitutional or inconsistent with the provisions of the constitution.

 

His Lordship further stated that employment is governed by the contractual agreement of the parties as contained in the letter of appointment and condition of service if any.

 

“In view of the foregoing, I am of the view that Article 31 i, of the 1^st Defendant/Applicant’s Constitution is not applicable to members of staff of the Defendant/Applicant, more particularly when it comes to issue of employment. The entire Bye-law to mind is applicable only to members of the 1^st Defendant in respect of dispute relating to administration or finance of the society.

 

“In view of reasons adduced above I hold that the Claimant’s action before the Court is competent. The provisions of Article 31 i, of the bye-law being relied upon by the Defendants/Applicants to object to this suit is not applicable to members of staff of the 1^st Defendant in respect of their contract of employment.

 

“The preliminary objection fails and is hereby dismissed for not being meritorious.” Justice Sanusi Kado declared

 

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