IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 11TH JUNE, 2018
SUIT NO: NICN/UY/32/2016
DR. SINYEOFORI A. BROWN……………CLAIMANT/RESPONDENT
1. UNIVERSITY OF UYO
2. VICE CHANCELLOR, UNIVERSITY OF UYO DEFENDANTS/APPLICANTS
3. REGISTRAR, UNIVERSITY OF UYO
U. A. Umoetok for the Claimant/Respondent.
Osinachi E. S. Udo for the Defendant/Applicants.
The Claimant who was an employee of the 1st Defendant until his purported dismissal on the 23rd of June, 2009, instituted Suit No. FHC/UY/CS/43/2009 at the Federal High Court, Uyo. The suit was subsequently transferred to this honourable Court vide the Order of the Federal High Court made on the 5th November, 2015 and was assigned Suit No. NICN/UY/32/2016 in this court. The Claimant filed a complaint on 17th May, 2017 praying for the following reliefs against the Defendants:
a. A declaration that the Defendant's letter to the Claimant titled Dismissal from Service and Defendants' publication in its News Bulletin Vol. 32 No. 11 of March-June, 2009 are defamatory of, about and concerning the Claimant.
b. A full and unreserved apology in writing.
c. N5,000,000 special damages.
d. The sum of N100,000,000 (One Hundred Million Naira) only?.
e. An Order of injunction restraining the Defendants and their privies from further publishing the libellous letter.
The Defendants filed a Notice of Preliminary Objection on 17th October, 2017 pursuant to Order 17, Rule 1 (9) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, Section 7 (1) (a) - (c) of the National Industrial Court Act, 2006 and Section 254 C (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the Inherent Jurisdiction of this honourable Court.
The grounds for the Notice of Preliminary Objection are as follows:
(a) Section 254C (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 7 (1) of the National Industrial Act, 2006, set out the subject matter jurisdiction of the National Industrial Court.
(b) The Claimant's cause of action and claims before this Court are squarely for the tort of defamation.
(c) The jurisdiction of the National Industrial Court does not include the tort of defamation.
(d) This honourable Court consequently lacks jurisdiction to entertain this Suit.
In opposition the Claimant filed his reply address on 13th February, 2018 thereby setting the stage for parties to adopt their arguments for and against this Preliminary Objection on 19th April, 2018.
SUBMISSION OF DEFENDANTS’/APPLICANTS:
The Defendants submitted a lone issue for determination which is: Whether, in the circumstance of this case, this honourable Court has jurisdiction to entertain this suit, which is squarely concerned with alleged defamation.
It is the submission of Defendants that the subject matter of this suit is not within the jurisdiction of this Court. The Defendants contended that the jurisdiction of this Court is fully set in section 254 C (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and section 7 (1) of the National Industrial Court Act, 2006 and none of these provisions cover the tort of defamation.
The Defendants reiterated that it is trite that the issue of jurisdiction is fundamental to the propriety of a suit and critical because it goes to the competence of the court to hear and determine a same. According to them, it is most imperative that courts decide the issue of jurisdiction before proceeding to consider any other matter else the entire proceedings no matter how well conducted and decided would amount to a nullity. See: Cyril O. Osakue v. Federal College of Education (Technical) Asaba & 2 Ors (2010) 10 NWLR (Part 1201) page 1 at 32 (paragraphs D-E). Similarly, Defendants submitted that courts are creation of statutes and the jurisdiction of each court is therefore assigned, confined, configured, limited and circumscribed by the statute creating it and procedural provisions regulating it, citing Alidu Adah v. National Youth Service Corps (2004) 13 N.W.L.R (Part 891) page 639 at 648 (paragraphs B-C).
On competence of court, Defendants cited the now trite case of Madukolu v. Nkemdilim relied upon in Olubunmi Oladapo Oni v. Cadbury Nigeria Plc (2016) 9 NWLR (Part 1516) page 80 at page107 (paragraphs B-D), where the Supreme Court held, inter alia, that a court is competent to hear a matter when all the under listed conditions are present:
(a) It is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case comes before the case initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of its jurisdiction.
The Defendants argued that this Court is a Court of limited jurisdiction in terms of subject matter which have been limited to labour and employment matters as spelt out in Section 254C of the 1999 Constitution and cannot therefore entertain matters outside its constitutionally prescribed areas. It is the further submission of Defendants, that a claim in libel was never contemplated by the drafters to form part of the exclusive jurisdiction of the National Industrial Court. They cited the case of Dr Emmanuel Sebastian Akpan v. University of Calabar (2016) LPELR-41242(CA) where the Court of Appeal held that:
"A careful examination of the provisions of Section 254 C of the 1999 Constitution, as amended will not reveal that its powers extend to entertaining a claim in tort, at all .... ".
The Defendants also referred to Exhibit UU1 which is the Certified True Copy of the Judgment of this Court delivered in the case of Dr. Clement Jacob Otton v. University of Uyo (Suit no. NICN/UY/06/2012) by My lord, Justice B. B. Kanyip on 6th November, 2012, to buttress the point further.
On the tort of defamation itself, the Defendants pointed out that it is a full-fledged tort, not an ancillary to any other claim and cannot be smuggled into the jurisdiction of this Court under the pretext of being "labour-related." The Defendants maintained that the Court of Appeal had put this principle beyond debate in case of Dr Emmanuel Sebastian Akpan v University of Calabar (2016) LPELR-41242(CA):
"claims for defamation are not merely ancillary claims. A claim for defamation stands on its own".
The Defendants is of the firm view that the above principle apply with even greater force in this case since the tort of defamation is the fulcrum of this suit and cannot even be argued as an ancillary claim.
The Defendants drew the attention of the court that in deciding this objection, it is only the endorsement on the writ and in the statement of claim that the court needs to examined. They relied on Makeri Smelting Company & 5 Ors v Access Bank of Nigeria Plc & Anor (2002) 7 NWLR (Pt 766) page 447 at 467 (paragraph B) for this proposition of the law and submitted in the instant case, the Complaint and the Statement of Facts, clearly show the claims are solely on the tort of defamation.
Finally, the Defendants submitted that since this court lack jurisdiction to entertain this suit, the inevitable consequence is to strike out this suit and urged the court to so do.
SUBMISSION OF CLAIMANT/RESPONDENT:
In opposing this application, the Claimant posed the following issue for determination: Whether in the circumstance of this case, the subject matter of defamation is not incidental to and inseparable from the Claimant's employment and purported dismissal by the defendants.
The Claimant answered this issue in the affirmative and contended that the furtive dismissal of the Claimant and the attendant injury thereof are, beyond argument, matters incidental to the Claimant employment relationship.
The Claimant stated that in Osakue v. F.C.E, Asaba (2010) 10 NWLR (Pt. 1201)1 at 39, the Supreme Court stated that a suit commenced against an agency of the Federal Government at the High Court of a State was incompetent and the Court held that:
"The 1st Respondent was an agency of the Federal Government which was sued by the Appellant at the High Court of Delta State instead of the Appellant initiating the action in the Federal High Court as dictated by Section 230 (l) (g) (r), (s) of the 1979 Constitution .... Therefore, the High Court of Delta State had no jurisdiction to determine the suit leading to this appeal and therefore the suit was incompetent."
The Claimant contended that in the instant case, the cause of action which occasioned the offensive publication complained of were integral parts of the same administrative act of the Defendant which would donate jurisdiction to the Federal High Court. However, being employment related matter, that jurisdiction cannot lie with the Federal High Court but with the National Industrial Court.
Furthermore, it is the submission of the Claimant that the Federal High Court which does not have jurisdiction to entertain employment related matters, does not have jurisdiction to entertain the complaint of defamation/libel. Reliance was placed in the Supreme Court case of Society Bic S. A. v. Charzin Ind. Ltd. (2014) 4 NWLR (1398) 497, thus:
"The jurisdiction of the Federal High Court is spelt out in Section 7 of the Federal High Court Act, Cap F12 Laws of the Federation of Nigeria, 2004 and Sections 251 and 272(3) of the 1999 Constitution. Libel does not fall within the jurisdiction of the Federal High Court.”
The Claimant strongly posited that by ousting jurisdiction of the Federal High Court on libel matters, and the State High Courts on matters in which the Federal Government or its agency is a party, only the National Industrial Court can entertain complaints involving an agency of the Federal Government in employment matters.
By section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999, the Claimant argued he is entitled to be heard by either the Federal High Court, State High Court or the National Industrial Court. These Courts are particularly vested with the judicial powers to entertain:
"all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person."
The Claimant thereafter submitted that by section 254 (c) (1) (a) of the 1999 Constitution the National Industrial Court is particularly endowed with the power/jurisdiction to entertain matters:
"relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.”
For the Claimant the main claim in this action is for the court to exercise its judicial powers to determine the complaint regarding a matter which arose from the Claimant’s workplace and is incidental to or connected with his service in the employ of the Defendants.
The Claimant quoted the definition of the word "incidental" in Chambers 21st Century Dictionary (Revised Edition) at page 683 as "happening, etc by chance in connection with something else and of secondary or minor importance." and also, the Black's Law Dictionary, 7th Edition, at page 763 to mean "subordinate to something of greater importance; having a minor role.”
In the light of the above definition of the word, the Claimant contended that the defamatory act of the Defendants is anchored on the purported dismissal of the Claimant and is without doubt incidental to the Defendants' employment of the Claimant and rooted in the Claimant's workplace. And any artistry that would attempt to alienate the Defendants' act complained of from their convoluted severance of the Claimant from the employ of the 1st Defendant is an exercise in perversity. And finally, any attempt to place the Defendants' act complained of outside the thicket of the Defendants' workplace and employment of the Claimant is chicanery.
With this, the Claimant urged the court to discountenance the Defendants' objection and dismiss same and assume jurisdiction to hear and determine the suit in the interest of justice.
DEFENDANTS’/APPLICANTS REJOINDER ON POINTS OF LAW
On the issue of Defamation being incidental to and inseparable from Claimant' employment, the Defendants advanced that the National Industrial Court is a Court of limited jurisdiction in terms of subject matter, as clearly spelt out in Section 254 C of the 1999 Constitution, as amended. The National Industrial Court cannot entertain any matter outside its constitutionally prescribed subject matter area.
It is the rejoinder of the Defendants that a claim cannot be considered as ancillary to the main claim when it is completely removed from the subject matter of the main claim citing the case of Bisong v. University of Calabar (2016) LPELR-41246(CA) and Amucheazi & Abba, The National Industrial Court' of Nigeria Law, Practice and Procedure, Pages 71-72. The Defendants contended that a claim in tort cannot be considered as being ancillary to a claim for wrongful dismissal when brought before a Court which has its jurisdiction limited by statute. In stressing that defamation is not ancillary claim but sui generis, the Defendants contended that the law required to decide the issue cannot be employment or labour law. The Defendants called in to aid the cases of Dr E. G. Ayo Akinyemi v. Crawford University (2011) 22 NLLR (Pt. 61) 90 at 110 and Mr. C. E. Okeke & 2 Ors v. Union Bank of Nigeria Plc (2011) 22 NLLR (Pt. 61) 161 at 183.
The Defendants also emphasized that the fact that the right of a person is infringed upon in the workplace is not sufficient to confer jurisdiction on the court except employment issues are involved placing reliance on Agbo v. Central Bank of Nigeria (1996) 10 NWLR (Part 418) 370, Comrade Joseph Faniwenmi & Ors. v. National Union of Chemical Foot Wear, Rubber, Leather and Non-metallic Product Employee Suit No. NICN/LA/431/2013 (unreported) and Bamidele Aturu's Law and Practice of the National Industrial Court (page 25).
The Defendants on a final note urged the court to take note of all the arguments and uphold the objection and dismiss the suit.
DECISION OF THE COURT:
I have carefully gone through the processes, the arguments on the two sides of this divide and most of the authorities thereof and the issue for determination in my opinion is: Whether this court has jurisdiction to entertain this suit.
To start with, the parties are at ad idem on two facts to wit: the fact that this suit is rooted on the tort of defamation and section 254 C (1) of the Constitution of the Federal Republic of Nigeria 1999 is the applicable law on the subject matter of this suit. The bone of contention is however on whether the tort of defamation is included in the law to clothe this court with jurisdiction to entertain this instant suit. To the Defendants since the said section does not include the tort of defamation, this court lacks jurisdiction to entertain the suit. But as far as the Claimant is concerned his purported dismissal by the Defendants and the attendant injury are matters that are incidental to his employment relationship with the Defendants which is enough to donate this court with jurisdiction on the matter. In other words, while the Defendants are relying on the exact provisions of the law to oust the jurisdiction of this court, the Claimant is depending on the incidental aspect of the law to confer this court with jurisdiction.
The question is can jurisdiction be conferred or/and granted on incidence, inference or by implication? My answer is an emphatic no for reasons that are easily discernible:
Firstly, it is trite that courts are creatures of statute and it is the statute that created a particular court that will also confer on it, its jurisdiction. Jurisdiction can be extended not by the courts but the legislature. See Obiuweubi v. Central Bank (2011)3 S.C.N.J. 195.
Secondly, Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts. They cloak the courts with the powers and jurisdiction to adjudicate. If the statutes do not grant jurisdiction to a court, the court and the parties cannot by consent endow it with jurisdiction. The jurisdiction of a court is therefore confined, limited and circumscribed by the statute creating it. See the case of Oloruntoba-Oju v. Abdulraheem (2009) 6 S.C.N.J. 29.
Thirdly, the jurisdiction of a court is not inferred, implied or imagined but must be statutorily conferred. See Oloruntoba-Oju v. Abdulraheem (supra) and Ijeoma v. Petromed Oil Nig Ltd & ors (2009) LPELR-8420(CA).
Fourthly, authorities abound that employment cases are inappropriate for ventilating grievances of litigants as to reputation, feelings, psychological shock etc. See Agbo v. CBN (1996) 10 NWLR (Pt. 478) 379 CA, Baba v. Nigerian Civil Aviation Training Centre (1986) 5 NWLR (Pt. 42) 514, Katto v. CBN (1999) 6 NWLR (Pt. 607) 390 SC and Onwuneme v. ACB Plc (1997) 12 NWLR (Pt. 513) 150 CA. Bamidele Aturu (of blessed memory) in his book, Law and Practice of the National Industrial Court (Hebron Publishing Co. Ltd: Lagos), 2013 at 25 shared this proposition of the law when he said:
“The fact that the right of a person is infringed in the workplace is not sufficient to confer jurisdiction on the court except an employment issue is involved”.
Fifthly, I am persuaded by similar decisions of this court in the cases of Clement J. Otton v. University of Uyo (NICN/UY/06/2012) and Dr. Clestine U. Njoku v. Engr. Clinton C. Emekoma (NICN/OW/66/2014) delivered by my lords, Justice B. B. Kanyip and Justice O. Y. Anuwe respectively.
Placing the foregoing principles of law against the submissions of the parties in this instant application, I find the submission of the Defendants more in tune with the law than that of the Claimant. Tried as he did, the Claimant did not bring his case within the purview of section 254 C (1) of the Constitution. I have examined the claims of the Claimant and have not seen any relief directly regarding his employment with the Defendants. His attempt to do so by the definition of “incidental” in his address is cut up by the principle that jurisdiction cannot be conferred by inference and is therefore of no moment. His reference to the cases involving the jurisdiction the Federal High Court and State High Court is of no assistance to him either. The cases of Osakue v. F.C.E, Asaba (2010) 10 NWLR (Pt. 1201)1 at 39 and Society Bic S. A. v. Charzin Ind. Ltd. (2014) 4 NWLR (1398) 497 are therefore good law for only what they stated, that is, ousting the jurisdiction the State High Court in any matter involving Federal Agency and Federal High Court in the tort of defamation. They did not in any way talk about the jurisdiction of this court let alone demonstrate how this court will assume jurisdiction of the case at hand. His argument on the judicial powers under section 6 (6) (b) is too general and lacking in specifics to pin down this matter on the jurisdiction of this court.
In coming to this conclusion, I am most guided by the wisdom of Niki Tobi, J.S.C. (of blessed memory) in the case of Ibadan S.E. v. Adeleke (2007) 1 S.C.N.J.57, when he said:
“In the determination of the issue of jurisdiction, the court should not be influenced by sympathy for the case of one of the parties but must base its decisions on the law, particularly in the light of the enabling law. After all, jurisdiction is a matter of hard law.”
For the foresaid reasons, this court lacks the requisite jurisdiction to entertain this suit and the inevitable result is that the suit must be struck out and is hereby struck. I make no order as to cost.
Judgment entered accordingly.
HON. JUSTICE M. A. NAMTARI