IN THE ******** INDUSTRIAL COURT OF NIGERIA

IN THE ***** JUDICIAL DIVISION

****** ** LAGOS

**** ** NICN/LA/143/2025

BEFORE HIS LORDSHIP, HON. ******* (DR.) 1. J. ESSIEN 

 DATE: 21^st July 2026. 

 

BETWEEN 

MR. AZEEZ ***** --------------------------------------------- CLAIMANT

                                            AND

*** ******* TOWERS LIMITED. ------------------- --- DEFENDANT

 

RULING .

The Claimant commenced **** action by a complaint dated *** filed on the 19/6/2025. Upon being ****** with *** originating process, *** Defendant filed a notice of preliminary ********* on the 5/8/2025. In the Notice of  Preliminary Objection, *** Defendant, seeks ** ***** striking out this suit for lack of jurisdiction. The preliminary objection is predicated on 5 grounds which are below reproduced:

1. The Claimant’s ****** ****** from the ****** Separation Agreement (the MSA) ******** ******* *** Claimant/Respondent and the Defendant/********* on 13^th November 2024.
2. ****** l3(a) of the MSA provides that ** the event of a dispute, controversy or claim arising from the MSA, *** parties shall ***** attempt ** resolve the dispute through good faith negotiations.
3. Clause 13(b) of the MSA provides **** where mediation **** *** resolve the ******** within 30 (Thirty) **** from initiation, either party may ***** the ****** to arbitration to be ********* in accordance **** the ****** Court of International Arbitration Rules to be administered ** *** ***** Court ** Arbitration.
4. Clause 13 ** *** MSA ******** as a “Scott V. Avery Clause” *** ******* ** obligation to negotiate, mediate and arbitrate *** ******* that may arise **** *** MSA *** ** a ********* ********* to *** ******** of any right of action by *** Claimant/Respondent.
5. The Claimant/Respondent *** not fulfilled the condition precedent to *** initiation of this action.

** support of this application, the Defendant filed a 5 paragraphs ********* Attached to the ********* are Exhibits PATL 1 a ******** which the deponent describes ** a copy ** *** Mutual ********** Agreement. (MSA). **** in support ** this objection, The claimant counsel filed a written address.

Upon being served with the NPO *** claimant counsel filed a 5 paragraph ******* affidavit ******* ** ** *** ***** Abutu *** ********* himself as a litigation ******* ** *** **** ** *** Claimant Counsel. ******** to the affidavit are Exhibits A1 to A6,  B and C. The claimant also ***** a written address ** support of the counter affidavit. ** *** 4/9/2025, the Defendant Objector ***** a further affidavit ** 6 paragraphs. ******** ** the affidavit is Exhibit *** a **** of the Employment agreement ******* the parties. Also, the Defendant ***** a reply on ***** of law ** *** claimant address. Counsel un-****** ** the ******* ******* ***** processes on the 20/5/2026 *** the matter was ********* for ruling.

In this objection, *** defendant contention is that by ** ********* described by *** parties as a Mutual Separation Agreement,(MSA) ******** by the parties on the on 13^th ******** 2024, annexed to *** ********** affidavit ** Exhibit PATL 1, the ******* has agreed in Clause 13(a) *** (b) to resolve *** dispute arising **** *** ********* ******* good faith *********** and mediation and if the ******* shall remain unresolved the ******* ***** ****** to *********** before ********* ** ********** in court. To this end, ******* ******** that ******** to Clauses l3(a) and (b) ** *** MSA, before *** Claimant/Respondent instituted this suit, there *** ** good faith negotiations between *** parties. No meeting was held ** the parties to discuss and resolve the dispute. ***** *** no arbitration of *** dispute. One would have expected that ** relying on ****** 13(a) *** (b) of Exhibit PATL 1, The defendant ******** ***** have ******** the agreement executed by *** ******* before this court for the ***** to be certain that indeed the parties did in-**** ******* the agreement *** which can be binding and relied upon by either party. **** is not *** case here. *** exhibit relied **** and attached ** the ********* in support of **** objection *** only executed by the claimant on record. There is no ********** that the defendant executed this agreement, as the ********* column ** the ********* is blank. This is a clear ********** that there is no agreement in Exhibit PATL-1 for which this court *** enforce. To ****** to an enforceable agreement *** parties ought to have ******** the agreement. 

Assuming there is an agreement for which the defendant ***** *** *********** ****** 13 (a) and (b), ***** I **** *** seen *** brought ****** the court ** this application, I am ********* ** consider the ******** of counsel on this application ** *** ***** to determine whether **** Preliminary Objection *** ** granted. 

The ********* Counsel in *** ******* address in support of the preliminary objection has argued that compliance with clause 13 of the MSA imposes a condition precedent to the ******** ****** a suit. ** ****** **** the non- compliance with the ********* ********* in ****** 13 ** MSA robs the court of the jurisdiction ** entertain this action. That ****** 13 uses the words ‘shall’ which commands a mandatory and ********** duty to arbitrate, and relied on *** case of Ibrahim V. Akinrinsola 18 **** (Pt. 1862) 455 (Pp. 496, para. D, 498, paras. A&B) Counsel relied on the case of Drexel ****** *** Natural Resources Ltd. & Ors. V. Trans International Bank Ltd. & Ors. (2008) LPELR-962 (SC) to ***** that ‘where a pre-********* for initiating of a legal process is in motion, any **** ********** ** contravention of the **** Pre-********* provision, is incompetent and a court ** law, lacks ************ to ********* the same’.

Counsel argued **** Clause 13(b) is a ***** V. Avery [I856] 10 ER  1121, clause, which creates an obligation to ********* *** ******** creates a condition precedent to a Claimant’s right of action that it must **** ********** arbitrated the dispute before filing a claim in Court. ******* relied ** the case of Scoa (Nig.) Plc V. ******** **** Plc (2016) LPELR-40566(CA) which cited with approval *** ******** in the **** of A.I.D.C. V. Nigeria L.N.G. Ltd [2000] 4 NWLR (Pt653) 494 (SC)  **** Engineering ******* *** V. ******* Housing Authority [I991] 9 **** (Pt.520) 224. ***** decided **** while Parties ****** ** ******** oust the jurisdiction of *** Courts, they can agree that ** right of action ***** accrue in respect ** *** *********** which *** arise between **** until **** differences have **** *********** upon by ** arbitrator. Such a provision is popularly known ** law ** the ‘Scott V. Avery clause’ enunciated In Scott V. AVERY ‘supra’ 

 In response to argument of the ********* counsel, the ******** has argued **** ** Arbitration clause in ** ********* does *** operate as an ouster ****** *** which the jurisdiction ** the court can be ousted. ******* ******** that the Arbitration clause ** Clause 13(b) of the MSA is an optional/ discretionary obligation which *** parties are at liberty to waive. Because the clause uses the **** ‘MAY’ ***** connotes an ******** of a discretion. *** word is permissive and not mandatory. It does *** ***** ** a party a legal duty which must be performed. Counsel ****** on the case of ***** V. Omidina (2013) 16 NWLR (Pt. 1381)589 CA; ****** v. Regd. Trustees, CCGS (2023) 6 NWLR (Pt. 1879) 43 SC. Counsel argued that parties **** not under any legal mandate ** compulsion to ****** to arbitration after ******* at *********** failed. Besides, it is ************ to think that an Applicant who was not **** to negotiation would be open to arbitration. He submitted that the mere ********* of an *********** ****** in ** agreement does not divest this Honourable Court of *** ************ ** **** *** determine the instant suit. Counsel ****** ** the case of R.C.0.S. Ltd. V. Rainbownet Ltd. (2014) 5 NWLR (Pt. 1401) 516 CA, where the ***** **** inter-alia ‘An arbitration clause ** an agreement is only procedural in that a ********* whereby *** parties ***** that any dispute ****** ** ********* to arbitration does not exclude or limit ****** or ******** but ****** provides a procedure under which the parties may ****** ***** grievances. It is   not    an exclusion  or ouster clause properly  so  called.  Thus,   the  parties  *** free, **** clause notwithstanding, ** pursue their claims in *** courts…’

Counsel ********* that the *********** clause **** *** ********** the ***** of access to the court, which is a ************** right guaranteed under Section 6(6)(b) and Section 36(1) of the 1999 Constitution (as amended). Second, the existence of an *********** agreement does not automatically operate as a bar to litigation. ******* ******* submitted that the law is **** settled that ** arbitration clause, no matter how well drafted, cannot **** *** ************ ** *** Courts. See Celtel Nigeria B.V. V Econet Wireless Ltd. [2014] LPELR (22430) 1 at 58. Parties to a contractual agreement cannot, by ******* and/ or agreement, confer and/ or ****** from the ************ ** the Court. See Ajar & Anor V. Ayip [2006] LPELR-41200 (CA).

******** ** THE COURT.

*** me start by reproducing *** provisions ** Clause 13 of the ****** Separation Agreement (MSA). The clause provides that ** *** event of a dispute, controversy or ***** ******* out of or relating to the MSA:

13(a) The ******* ***** first attempt to ******* *** ******* ******* **** ***** negotiation ****** party may ******** the negotiation ******* ** ********* ******* notice ** *** other party, ********** *** nature ** the dispute and the ******* outcome. The Parties ***** **** meet (either in ****** or virtually) within ** business days of such ****** to ******* and seek a resolution. Each party ****** to **** reasonable efforts to resolve the dispute ******** *** expeditiously.

13(b) If the dispute ** not ******** through ************ within thirty (30) calendar days from the initiation of mediation, either Party may refer the ****** to arbitration. The arbitration shall be ********* in ********** with the London ***** ** ************* Arbitration (LCIA) Rules in ***** at the time the dispute Is ******** to arbitration, which rules are deemed to be Incorporated ** reference **** this clause. The arbitration shall be administered by the Logos Court of Arbitration *** conducted by a sole arbitrator appointed in accordance with *** LCIA Rules. The Place ** *********** shall be Logos, Nigeria, and the proceedings ***** ** conducted In the ******* language. *** decision of the arbitrator shall be final and ******* on the Parties.

The above clause requires ******* to the *** ** fist attempt to resolve the dispute by good faith negotiation *** ***** *** dispute, controversy or claim is *** resolved, ******* ***** **** resort to Arbitration. The defendant has argued that before a suit *** be filed in respect of a ******* arising from *** MSA, (i)A notice ** dispute and requestion *** negotiation **** be issued ** one ***** to the other. The notice must state the nature of *** dispute and the desired outcome. (ii)The parties shall meet (****** ** ****** or virtually) within *** (l0) business **** of such notice to discuss and **** a resolution. (iii)If *********** fails, parties must ******* mediation (iv) ** mediation fails, after 30 days, the parties are ** ** to arbitration. Counsel position is that There were no good faith negotiations between the parties. No meeting was **** by the parties to discuss and ******* *** dispute. There was no arbitration of the dispute. *** evidence ****** the court does *** support this position. ********* 4 (f) ** the ******* affidavit **** **** the Claimant/Respondent wrote Exhibit B attached to the ********* in ***** the claimant solicitor made a demand for the payment of a certain sum ** money as the ******** benefit. the 2^nd ** *** last paragraph of *** letter states 

In light of *** foregoing, we *** instructed to, and hereby do, ****** *** immediate payment of the Terminal Bonus in the sum of N150,000,000.00 (*** Hundred *** ***** ******* Naira), ***** is *** *** *** ******* to *** client. ****** ensure ******* is made within seven (7) days of **** receipt ** this letter.

Without ********* to the ***** demand, and ** keeping **** the requirements of the Lagos ***** High Court (Civil Procedure) Rules, which ******* ******* to ******* ******** resolution prior ** litigation, our ****** ** willing to consider an amicable settlement. This ****** is ****** ** **** ****** *** ** compliance with *** applicable Pre-Action Protocols. 

In the response ** the above-mentioned letter, the ********* in ******* C stated **** the defendant is *** liable to pay the terminal benefits. *** ********* completely ignored the call for ******** settlement. **** *********** the *********** of a **** ***** negotiation which may **** to *** ********* and to a ******** arbitration. ******* B *** sufficiently clear enough ** its wording to give details of the nature of the dispute, controversy or claim. The claimant therefore *** within his ***** ** commence an action in *** face of the rejection ** *** amicable ********** by *** defendant. 

 

The defendant *** also ****** that Clause 13(b) of *** MSA ** a Scot V. Avery (I856) 10 ER 1121. Clause that imposes a ********* precedent ***** must ** discharged before ******** can file a **** ** court. ******* contend **** this is so ******* ****** 13(b) of *** MSA uses the word ‘shall’ which *** been *********** to connote a mandatory *********** which excludes the exercise ** *** discretion. I have examined the text of Clause 13 ** the *** *** **** ***** only appears in Clause 13(a) ** the effect that ‘parties shall ***** ******* to resolve the dispute’ which the ******** ********* to comply there-with, when the claimant counsel wrote Exhibit B but the ********* refused to ****** the proposal for amicable settlement. Clause 13(b) uses *** **** ‘May’ and provides; ‘either ***** may refer the matter to arbitration’. *** word may connote an exercise of a ********** it is ********* *********** *** *** mandatory See *** case ** NDLEA V. Omidina [2013] 16 NWLR (Pt.1381). See **** Ekanem V. Regd. Trustees, CCGS [2023] 6 NWLR (Pt.1879) 43 SC. 

On the strength of the above cited authorities, ** is *** ******* of this court **** Clause 13 of the MSA does *** justify the strict application ** ********* in **** V. Avery Therefore parties were *** under any legal compulsion ** revert ** *********** ***** attempt at *********** failed. 

*** me **** note that *** defendant/********* to this PO, by their position ******* to suggest **** *** arbitration clause ********* in the ********** agreement operates as ** ouster clause, seeking to strip the ***** of its constitutional jurisdiction. *** ***** ** prevent *** parties ** the *** **** exercising their ***** ** access to court as guaranteed by ******* 6(6)(b) ** the 199 Constitution as amended. This position ** ********** flawed. The ******* position of *** law ** enunciated ** the case of R.C.O.S. Ltd. V. Rainbownet Ltd. (2014) 5 NWLR (Pt. 1401) 516 , the Court of ****** ******* the position **** it held;

Arbitration ****** ** an agreement ** only ********** in that a ********* ******* the parties ***** that any ******* ****** be submitted to *********** does not ******* or ***** ****** or remedies *** simply ******** a procedure under which the parties may settle their grievances.    It is ***  an exclusion   ** ****** clause properly  so   called.  Thus, the *******  are free, **** clause notwithstanding, to pursue ***** claims ** the courts…

*** also Celtel ******* B.V. V.  Econet Wireless Ltd [2014] LPELR (22430) 1 at 58.

**** position is even **** **** when it is of legal notoriety that Parties to a *********** agreement cannot, by consent and/ or agreement, ****** and/ ** remove from *** jurisdiction of the Court. See Ajar & **** V. Ayip [2006] LPELR-41200 (CA).

The defendant counsel has sought to **** ** section 6 of the *********** law of ***** State, The section ** **** law, ** as much ** it regulates the ***** ** the court to **** proceedings in a matter subject to arbitration, has ** *********** to *** present action. And cannot support an application such ** the PO ***** seeks an order striking *** of this suit *** lack of jurisdiction. Section 6 of *** Arbitration law envisages **** ***** is an *********** *********** **** *** already ********* ***** is not the **** here. 

On the strength ** the above findings, It is the decision of this court that this preliminary objection ** misconceived. It ** ******* any merit. It ** accordingly dismissed. 

The defendant ***** *** a cost of N500,000 (**** hundred thousand Naira) to the claimant. 

Ruling is hereby entered. 

 

----------------------------------------------------

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)

 

REPRESENTATION

B. A. ****** Esq with E. ********* Esq. and U. *** Esq. for Claimant/Respondent. 

M. T .******* *** with C. Nwadike Esq and A. Momoh. For Defendant/ Applicant.