IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE, A.N UBAKA

 

DATED 10^TH MARCH, 2026 SUIT NO: NICN/LA/355/2021

IN THE MATTER OF AN APPLICATION BY IBIENE WINNIE BELEMA FOR AN ORDER FOR THE ENFORCMENT OF FUNDAMENTAL RIGHTS

IBIENE WINNIE BELEMA APPLICANT

 

 

AND

 

1. XEJET LIMITED
2. MODUPE OGUNYOMI JOY                                     RESPONDENTS                                                                                

REPRESENTATION       

Elo Azaino with T.J Durodola for the Applicant

J. K Adamu for the Respondents.

 RULING

By an Originating Motion filed on 2^nd October, 2015 brought pursuant to Order 2 Rules 2, 3, 4 & 5 of Fundamental Rights Enforcement Procedure Rules 2009, Sections 6, 33, 34, 42 & 254 (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Articles 4, 5, 6 9, and 12 of the African Charter on Human  and Peoples’ Rights (Ratification and Enforcement) Act, Articles 1, 2 & 3 of International Labour Organization (ILO) Violence and Harassment Convention No. 190 (Ratified by Nigeria on 2021) and under the Inherent Jurisdiction of this honourable court, the Applicant is praying for the following Orders of the court:

 

 

 

 

 

 

 

 

 

 

 

 

Grounds upon which the reliefs are sought:

 

 

 

 

 

 

 

 

Accompanying the Originating Motion is a 54-paragraphs affidavit deposed to by the claimant/applicant attaching 9 marked exhibit 1 (The offer of Appointment and Contract of employment dated 3^rd May, 2023), exhibit 2 (Contract agreement between the claimant and Zivian Homes), exhibit 3 (Picture excerpts of the applicant and the other host at the event), exhibit 4 (Copy of her signed contract for UBA commercials), exhibit 5 (Pictures and Video of the applicant lacerated face), exhibit 6 (A video clip showing the operations nursing and cleaning the applicant, exhibit 7 (Copy of the email sent to the 1^st Respondent), exhibit 8 (The applicant’s letter of Resignation dated 9^th October, 2023), exhibit 9 (Receipt of payment of the Applicant’s fees to Rosenut Solicitors) respectively. Attached to the Originating motion is a written address wherein counsel for the applicant formulated two (2) issues for court determination:

 

 

It is the applicant’s counsel submission on issue one (1) that by virtue of Section 254(c) of the 1999 Constitution of the Federal Republic of Nigeria, it is crystal clear that the honourable court has the jurisdiction to hear the instant suit having related to employment and also that by Chapter iv of the constitution on right to life, right to human Dignity, and Right to freedom from discrimination. Also Order 14 Rule 1 (2) of the Rules of the honourable court, the ILO Violence and Harassment Convention, 2019 No. 190 (ratified by Nigeria) and ILO Discrimination (Employment and Occupation) Convention 1958 No. 111 (ratified by Nigeria) also provides for the right from discrimination and violence at workplace which are all Human (Employee) Rights amongst other human rights hence, conferring on the honourable court the jurisdiction to hear and determine the instant suit.

 

On issue two (2); counsel submitted that the 2^nd issue is answered in affirmative as every citizen is entitled the fundamental rights contained in chapter 4 of the constitution and which rights cannot be deprived of the applicant except by ways allowed by the law. He cited the case of Ahuruonye v Ikonne (2015) All FWLR Pt. 811 P. 1243.

 

On the applicant’s right to dignity of human person; counsel submitted that the applicant’s rights to dignity of her human person and freedom from degrading treatment was infringed upon when the respondents act of continual harassment, incessant insults, hurling of abuses, threats and intimidation against the applicant at the place of work runs contrary to Section 34 (1) of the constitution and that the 1^st respondent has the fiduciary duty to protect the Applicant from any such inhuman treatment at the place of work.

 

On the breach of right to freedom from workplace discrimination; counsel submitted that the act of the 1^st respondent in placing the applicant under probation as a victim of an un-aggravated assault which occurred at the place of work on the 27^th May, 2023 without recourse to the fact that the applicant was innocently assaulted, victimized and harassed against continuously at the place of work; that these brazen acts constitutes preference which has the effect of nullifying impairing equality of opportuinity or treatment in employment hence, same constitute a fundamental breach to the Applicant’s right to freedom from work place discrimination; that any breach of the provisions of the fundamental rights provisions renders any act subsequent to that breach a nullity. He cited the case of Tolani v Kwara State Judicial Service Commission (2009) LPELR-8375 1 and urged the honourable court to so hold.

 

On the breach of life; counsel submitted that the 2^nd respondent had threatened to waylay the applicant and went ahead to carry out the threat when the 2^nd respondent charged at and used her shoe to attack the applicant on the 27^th May, 2023 resulting in lacerating and disfiguring the applicant’s face constituted a clear violation of the applicant’s constitutionally guaranteed right to life as provided for under Section 33 of the Constitution of the Federal Republic of Nigeria, 1999.

 

On the breach of right to freedom from violence and harassment at workplace; counsel submitted that the 1^st respondent owes the applicant a fiduciary duty of care to protect the applicant from any form of act or threat of physical violence, harassment, intimidation or other threatening disruptive behaviors that may occur at the work site, a duty which the 1^st respondent failed to carry; that the act of threat was continuous even when it was reported to the management including the CEO of the 1^st respondent who did nothing to protect the Applicant but instead sent the Applicant into the lion’s den, an act which has now cost the applicant life-long damages that can never be remedied.

 

On Damages for breach of fundamental right; the applicant’s counsel submitted that once the honourable court holds that the fundamental rights of an applicant have been breached, such applicant automatically is entitled to compensation. He urged the honourable court to award damages as claimed in the statement in support of the instant application, the applicant having proved the breach of her rights as claimed.

 

On exemplary damages; counsel submitted that it is evident as deposed in the affidavit that the respondents acted without justification by harassing, intimidating, assaulting, dehumanizing and making discriminatory remarks all in the place of work against the applicant as well as threatening her life.               

 

In reaction, the defendants/respondents entered formal appearance and then filed their 8-paragraph counter affidavit deposed to by one Rotimi Farawe on 14^th February 2024. Attached to the counter affidavit is a written address wherein counsel for the respondents formulated two issues for court determination:

 

1. Whether this action has been validly brought this honourable court
2. Whether there is a reasonable cause of action in the matter brought before this honourable court for adjudication. 

 

The respondents’ counsel jointly addressed the above issues and submitted that by virtue of Section 254 (1) c and 2 of the 1999 Constitution as amended, it is not within the ambit of the honourable court to adjudicate on matters bordering on fundamental rights; that the instant action is incompetent, having been inappropriately instituted before the honourable court.

 

That assuming without conceding the honourable court has jurisdiction to try this matter, there is no empirical facts or evidence before the honourable court to entitle the applicant the reliefs claimed; that the applicant has by her own admission resigned from the employment of the 1^st respondent and there is therefore no existence of any threatened legal right of the applicant warranting an order of injunction from the honourable court. He cited the case of Union Beverages Ltd v Pepsi-Cola Ltd (1994) 2 SCNJ 157 and urged the honourable court to dismiss the instant application with cost.

 

On 26^th February, 2024, the applicant filed a 10-paragraph further affidavit deposed to by the applicant; attaching a marked exhibit 10 (Screenshot of Staff Members WhatsApp Chat). Accompanying the further affidavit is a Reply on point of law wherein counsel submitted that the facts before the honourable court is that the rights have been violated during the pendency of her employment and has now approached the honourable court with the exclusive right to adjudicate on the matter for redress. 

 

The honourable court had on Tuesday, 26^th November, 2025 ordered parties to address the court on the propriety and the competence of an action commenced under the Fundamental Rights Enforcement Procedure Rules in National Industrial Court.

 

I have heard learned counsel and taken time to set out earlier in this ruling the originating court process commencing this Fundamental Rights Enforcement Application, the affidavit in support, the counter-affidavit, the reliefs sought by the respondent, the grounds of the relief and furthermore the facts of the case.   The issue to be resolved in this application is 

 

Whether with regards to the reliefs of the claimant, the action is validly brought by way of an application under the fundamental rights (Enforcement procedure) 2009

 

The complaint made in the relief is for a declaration that the threat to the applicant’s life at the place of work constitutes gross violation of the applicant’s Right to life and constitutes gross violation under section 33 of the Constitution of the Federal Republic of Nigeria, the African Charter on Human Rights. For commencement in this light, it is pertinent to examine the reliefs sought by the Applicant, the grounds for such reliefs and the facts relied upon. if the facts disclose that breach of Fundamental right is the main plank, redress may be sought through the Fundamental Rights (Enforcement procedure) rules but where the alleged breach of fundamental right is incidental or ancillary to the main complaint, it is incompetent to proceed under the rules. See Tukur v Governor of Taraba State (1997) 6 NWLR (Pt 510) 549, Egbonu v Borno Radio Television Corporation (1997) 12 NWLR (Pt 531) 29. In the instant case the Applicant’s claim points to the threat to life by the 1^st respondent at the place of work, harassment, insults, hurling of abuses, threats and intimidation, the crudest manner it assaulted the applicant resulting in lacerations on the applicant’s face. As earlier stated in the claim at the beginning of this ruling and the applicant’s claim would reveal that the claimant reliefs all center on insults harassment, threats and intimidation; that she was under the employment of the 1^st respondent and the 2^nd respondent used her shoes to assault the applicant thereby inflicting deep laceration and disfiguring the applicant’s face which constitutes a breach of the Applicant’s constitutionally guaranteed right.

 

In my view the right of being an employee as in this case is a right protected under the contract of employment. The right of contract of employment is not envisaged under Fundamental Human Right of chapter 4 of the 1999 constitution. The Applicant has initiated her claim under the Fundamental Rights Procedure instead of bringing her claim under contract of employment, therefore she has not initiated her claim by due process of law. See University of Ilorin v Oluwadare (2006) 14 NWLR Part 1000 page 751 where the court held thus

 

When an application is brought under the Fundamental Rights enforcement Procedure) Rules 1979 a condition precedent to the exercise of court’s jurisdiction is that the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right of securing the enforcement thereof should form the appellant’s claim as presented be the principal claim as presented and not accessory claim. However, where the main claim or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised as it will be incompetent.  

 

What then is the proper procedure for enforcement of Fundamental Right or breach thereof.  A claim for breach of Fundamental rights prescribed under chapter IV of the constitution of the Federal Republic of Nigeria 1999 as amended, may be brought in the High Court in a state for redress, however where the fundamental right is ancillary to the substantive claim, it is incompetent to proceed under the fundamental Rights (Enforcement procedure) Rules 2009. Pursuant to this, the competence of a court to exercise jurisdiction in relation to an action before it depends on certain conditions. A court is competent when 

 

It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another and 

 

The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction and 

 

The case comes before the court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

 

The effect of the second and third conditions mentioned above is that when the main or principal claim in an application is not the enforcement or securing the enforcement of a fundamental right, the court has no jurisdiction to entertain it under the Fundamental Rights. It follows that the Applicant’s application is not properly before the court. In the circumstances, the action to which the violation of chapter IV right is the case is against the respondent for harassment.  In Benjamin Akpur v COP Kano State Command & Ors (2024) LPELR -62762 (CA) the Court of Appeal on whether the National Industrial Court has concurrent jurisdiction to hear a claim of fundamental human right held thus 

 

The next issue to be determined is whether the National Industrial court of Nigeria has jurisdiction to hear and entertain Fundamental Right Enforcement Application. the answer to this question is definitely in the negative as the provision of section 254C (1) (a) – (m) of the 1999 constitution states the constitution of the National industrial court of Nigeria in unequivocal terms. it reads as follows ‘(1) Notwithstanding the provisions of sections 251. 257, 2732, and anything contained in the 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:

 

 

Based on the above decision the jurisdiction of securing the enforcement of fundamental rights is vested in the High court. The suit was commenced by the wrong procedure. The suit is incompetent and accordingly struck out.   

 

Ruling is entered accordingly.

 

 

HON. JUSTICE A.N. UBAKA

JUDGE