IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP: HON. JUSTICE Z. M. BASHIR, Ph.D

Dated: 27th day of April, 2026                          SUIT NO: NICN/PHC/67/2025

 

BETWEEN:

 

HON. EZE MILLER SAMPSON

(CARRYING ON BUSINESS UNDER THE 

NAME AND STYLE OF TECHZENITH AFRICA)----------------CLAIMANT

 

AND

UNIVERSITY OF PORT HARCOURT-------------------------DEFENDANT

Representation:

S.T. Ben-Imo for the Claimant 

N.E.  Ukpabio with M.J. Jacks for the Defendant.

Ruling.

This ruling is precipitated by a preliminary objection raised by the Defendant, challenging the jurisdiction of this Court to entertain the instant suit as presently constituted.

The Claimant commenced this suit by way of a Complaint filed on the 25th day of September, 2025, accompanied by a verifying affidavit, Statement of Facts, Witness Statement on Oath, list of witnesses, list of documents, and copies of the documents to be relied upon at trial.

The Claimant, through the Complaint and Statement of Facts, seeks the following reliefs against the Defendant:

1. A declaration that the Claimant is entitled to a refund of monies expended in setting up portals at the request of the Defendant, which the Defendant subsequently declined to utilize.

2. The sum of ?350,000,000.00 (Three Hundred and Fifty Million Naira) being expenses incurred in setting up the said portals.

3. The sum of ?32,000,000.00 (Thirty-Two Million Naira) being service commissions for May 2024 to August 2025 for services rendered to the Defendant’s School of Graduate Studies Programmes.

4. The sum of ?7,600,000.00 (Seven Million, Six Hundred Thousand Naira) being the cost of advert placements for the School of Graduate Studies Programmes.

5. The sum of ?100,000,000.00 (One Hundred Million Naira) as general damages for alleged depression, financial distress, and trauma occasioned by the Defendant’s actions.

6. The sum of ?35,000,000.00 (Thirty-Five Million Naira) being the cost of this action.

7. Post-judgment interest at the rate of 15% per annum until liquidation of the judgment sum.

In the alternative to relief (b):

8. An Order compelling the Defendant to utilize the portal developed by the Claimant exclusively for a period of ten (10) years under the Claimant’s management.

In response, the Defendant entered appearance and filed a Motion on Notice on the 28th of October, 2025, brought pursuant to Section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 17 Rules 1, 4 and 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and under the inherent jurisdiction of this Court.

The Defendant seeks the following reliefs:

1. An Order striking out or dismissing this suit for lack of jurisdiction;

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

The application is supported by a 9-paragraph affidavit deposed to by one Noble Legborsi and a written address wherein learned counsel to the Defendant formulated two issues for determination as follows:

1. Whether this Court has the requisite jurisdiction to entertain the Claimant’s suit as presently constituted;

2. Whether the failure of the Claimant to first resort to arbitration, as stipulated in the Service Agreement, deprives this Court of jurisdiction.

In arguing the first issue, learned counsel submitted that jurisdiction is fundamental and a condition precedent to the exercise of judicial powers, relying on Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and CBN v. SAP (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 152.

Counsel contended that the jurisdiction of this Court is circumscribed by Section 254C of the Constitution, which limits its competence to matters relating to employment and labour relations.

It was further argued that no employment relationship exists between the parties, and that the contract in question is one of contract for service and not contract of service, relying on Denca Services Ltd v. Azunna (2018) LPELR-46043 (CA) and Shena Security Co. Ltd v. Afropak (Nig.) Ltd (2008) 18 NWLR (Pt. 1118) 77 (SC).

Counsel therefore submitted that the subject matter of the suit falls outside the jurisdiction of this Court.

On the second issue, counsel argued that the Claimant failed to comply with a condition precedent by not resorting to arbitration as provided in the agreement between the parties. Counsel contended that this failure robs the Court of jurisdiction, relying on authorities including Gambari v. Gambari (1990) 5 NWLR (Pt. 152) 572 and Civil Design Construction (Nig.) Ltd v. SCOA (Nig.) Ltd (2007) LPELR-870 (SC).

Counsel urged the Court to strike out or dismiss the suit.

In opposition, the Claimant filed an address on point of law on the 18th of February, 2026.

Learned counsel for the Claimant contended that by virtue of Section 24 of the National Industrial Court Act, where this Court finds that it lacks jurisdiction, it is empowered to transfer the matter to the appropriate High Court rather than strike it out.

On the issue of arbitration, counsel submitted that the existence of an arbitration clause does not oust the jurisdiction of the Court. Counsel argued that the proper remedy is a stay of proceedings pending arbitration, not a dismissal or striking out of the suit. Reliance was placed on Section 5 of the Arbitration and Conciliation Act and the cases of SCOA Nigeria Plc v. Sterling Bank Plc (2016) LPELR-40566 (CA) and Obembe v. Wemabod Estates Ltd (1977) 5 SC 70.

Counsel accordingly urged the Court to transfer the suit where necessary, rather than strike it out.

I have accordingly given due consideration to the application made by learned counsel to the Defendant. In the light of the provision of Order 5 Rule 1 of the Rules of this Court, which stipulates that non-compliance with the Rules may be treated as an irregularity, I shall treat the alleged failure of the Claimant to file a reply within time as a mere irregularity, and I shall proceed to consider the submissions of counsel thereon.

Arising from the issues raised by counsel on both sides, the issue for determination in respect of the Motion on Notice challenging the jurisdiction of this Court is formulated as follows:

Whether, having regard to the facts of this case, the instant suit is one founded on a contract for service, thereby depriving this Court of jurisdiction.

It is settled beyond peradventure that jurisdiction is fundamental and goes to the competence of the Court to adjudicate on a matter. In Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465, the Supreme Court held that jurisdiction is a threshold issue which must be resolved before any other matter is considered, as proceedings conducted without jurisdiction amount to a nullity.

The conditions under which a Court is competent to entertain a suit were succinctly laid down in Madukolu v. Nkemdilim (1962) 3 SCNLR 34, to the effect that a Court is competent where:

a. It is properly constituted as regards its membership and qualification;

b. The subject matter of the case is within its jurisdiction and there is no feature preventing the exercise of jurisdiction; and

c. The case is initiated by due process and upon fulfilment of any condition precedent.

These conditions are conjunctive, and the absence of any one of them is fatal to the competence of the Court.

In the instant case, learned counsel to the Defendant has challenged the jurisdiction of this Court on the basis that: (i) the subject matter falls outside the scope of Section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended), there being no employment relationship between the parties; and (ii) the Claimant failed to comply with a condition precedent by not resorting to arbitration as stipulated in the agreement between the parties.

It is therefore apparent that the second and third limbs of the Madukolu principles are in issue.

In determining whether this Court has jurisdiction, it is trite that the Court must confine itself to the originating processes, particularly the Statement of Facts, and the reliefs sought by the Claimant. See A.G. Anambra State v. A.G. Federation (2007) 12 NWLR (Pt. 1047) 4 and Goldmark (Nig.) Ltd v. Ibafon Co. Ltd (2012) LPELR-9349 (SC).

Upon a careful perusal of the Statement of Facts, it is evident that the relationship between the parties is rooted in a Service Agreement dated the 20th day of December, 2022, pursuant to which the Claimant was engaged to develop and deploy portal access management services for the Defendant’s School of Graduate Studies.

While learned counsel to the Defendant drew the Court’s attention to paragraphs 7, 8, 14, 17 and 19 of the Statement of Facts, a holistic reading of the entire pleading reveals no indication whatsoever of an employment relationship between the parties. Rather, the Claimant’s case revolves around the recovery of monies allegedly expended in the execution of the service agreement, commissions, and damages arising from the alleged breach of same.

Similarly, the reliefs sought by the Claimant do not disclose any labour or employment dispute but are purely claims founded on contractual obligations and financial entitlements arising therefrom.

This Court, being a specialized Court, derives its jurisdiction strictly from Section 254C of the Constitution. It is therefore trite that where a matter does not fall within the ambit of labour or employment relations, this Court lacks jurisdiction to entertain same.

In Shena Security Company Ltd v. Afropak (Nig.) Ltd (2008) LPELR-3052 (SC), the Supreme Court drew a clear distinction between a contract of service and a contract for service, and laid down guiding factors for determining the nature of the relationship between parties.

Applying the said principles to the facts of this case, it is evident that:

• The Claimant is remunerated by way of commission rather than salary;

• The Claimant retains control over how the work is carried out;

• There is no evidence of fixed working hours; and

• The Claimant is not bound to render exclusive service to the Defendant.

These features clearly point to a contract for service, indicative of an independent contractor relationship, rather than a contract of employment.

Consequently, I find that the relationship between the parties is one of contract for service, which falls outside the jurisdictional competence of this Court.

With respect to the contention that the Claimant failed to file a counter-affidavit, I note that while such failure may amount to an admission of facts, the issue of jurisdiction remains a question of law which the Court is bound to determine on the basis of the pleadings and applicable legal principles.

I also take cognizance of the submission of learned counsel to the Claimant urging the Court to transfer the matter pursuant to Section 24 of the National Industrial Court Act, 2006.

However, a further layer of complication arises from the arbitration clause contained in Clause XIV of the Service Agreement, which provides for the resolution of disputes through arbitration.

This provision constitutes a condition precedent to the commencement of litigation. While this Court is empowered under Section 24 of the NIC Act to transfer matters to the appropriate High Court, there is no corresponding provision empowering this Court to transfer a matter to arbitration.

In the circumstance, the existence of the arbitration clause operates as a constraint both on this Court and any other Court, until the parties have complied with the agreed dispute resolution mechanism.

Accordingly, the appropriate course open to the parties is to first submit their dispute to arbitration in accordance with their agreement.

In the final analysis, the lone issue formulated for determination is resolved in favour of the Defendant to the effect that the instant suit is founded on a contract for service and therefore falls outside the jurisdiction of this Court.

It is settled law that where jurisdiction is lacking, the Court is divested of the vires to proceed any further. The inevitable consequence is that this suit cannot be sustained and is accordingly struck out.

Ruling is entered accordingly.

I make no order as to costs. 

 

…………………………………………………………

HON. JUSTICE Z. M. BASHIR, Ph.D

JUDGE