LEGAL NUGGETS (38):JURISDICTION OF THE NATIONAL INDUSTRIAL COURT.By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.

NASARAWA STATE UNIVERSITY & ANOR v. NEKERE (2018) LPELR-44550(CA)

ISSUE
JURISDICTION OF THE NATIONAL INDUSTRIAL COURT : Effect of the exclusive jurisdiction of the National Industrial Court on matters pending before the High Court/Federal High Court

PRINCIPLE
"It is common ground between the parties that the suit leading to this appeal is an employer-employee matter. It was instituted on 16/10/2009. As at that date, the trial Court had jurisdiction to entertain the matter by virtue of Section 272(1) of the Constitution of Nigeria 1999 since the appellants are not Federal agencies. On 4/3/2011, while the suit was still pending at the trial Court, Section 254 of the Constitution of Nigeria 1999 (as amended) was altered by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 which introduced Section 254C (1) to the Constitution. The provision reads, in part, as follows: "Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this 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 - (a) 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."

There is no doubt that cases relating to employment and matters incidental thereto or connected therewith were from 4/3/2011, when the Third Alteration came into force, within the exclusive jurisdiction of the National Industrial Court. Respondent's counsel conceded that from that date Section 254C of the Constitution did confer exclusive jurisdiction on the National Industrial Court in regard to the subject matter of the suit leading to this appeal. It was however his contention that since the matter was part-heard as at 4/3/2011, the jurisdiction of the trial Court to continue the hearing to conclusion and judgment was not affected by the alteration. I should pause here to state the well established position of the law that the law governing a cause of action is the law in force at the time the cause of action arose while the law governing jurisdiction is the prevailing law when the action was instituted and heard. The law governing both situations may not necessarily be co-extensive. See Uwaifo V Attorney-General, Bendel State (1982) 7 SC 124, Utih V Onoyivwe (1991) 1 NWLR (Pt. 166) 166, Adah V National Youth Service Corps (2004) 13 NWLR (Pt.891) 639 and Osakue V Federal College of Education (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 1. In this instance, the cause of action arose on 16/6/2008 when respondent's appointment was terminated by appellants. The respondent instituted the action on 16/10/2009 when the trial Court had jurisdiction. The respondent testified as PW1 on 14/12/2010, tendered several exhibits and closed his case. The case was adjourned to 1/3/2011 for defence. On 1/3/2011 a motion to re-open the respondent's case and for him to be recalled for cross-examination was heard and granted. The case was adjourned to 8/4/2011 for cross-examination of PW1 and defence. On 4/3/2011, the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 came into force giving exclusive jurisdiction in employment matters to the National Industrial Court. It is clear from the above narrative that as at 4/3/2011 when exclusive jurisdiction on employment matters was conferred on the National Industrial Court, respondent's matter before the trial Court was part-heard. Section 6(1) (c) and (e) of the Interpretation Act provides that "The repeal of an enactment shall not - (c) affect any right, privilege, obligation or liability accrued or incurred under the enactment; ... (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or be enforced, and such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed." It follows from the forgoing provisions and as was stated by Kekere-Ekun, JSC, in B.B. Apugo and Sons Ltd V Orthopaedic Hospital Management Board (OHMB) (2016) 13 NWLR (Pt. 1529) 206, 246 that "... the vested rights of a party in existence at the time a new law is passed transferring jurisdiction of a court to another, will not be lost where proceedings in the case are on-going before the enactment of the law. This is because there is a general presumption against retrospective legislation". See also Ogamioba V Oghene (1961) 1 All NLR (Pt. 1) 59. Thus where, as in this instance, a matter is part-heard before a law is made or the Constitution is amended to oust the jurisdiction of the Court that was seized of the matter, the new law or amendment would not take away the jurisdiction of the trial Court to continue to hear the part-heard matter to its conclusion. This is especially so in this matter as the Constitution of Nigeria (Third Alteration) Act does not contain an abatement provision.

This has been the consistent position of our Courts at all levels. See Gold Mark (Nig) Ltd V Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) 291, Shell Petroleum D.C. V Anaro (2015) LPELR-24750, Pam V Abu (2013) LPELR-21406, Olufunsho V Global Soap and Detergent Industries Ltd (2012) LPELR-9822, Obiuweubi V Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465 and Council, Federal Polytechnic, Mubi V Dingoli (2014) 16 NWLR (Pt. 1433) 371. Counsel for appellants relied on Olutola V University of Ilorin (2005) All FWLR (Pt. 245) 1151 to submit that the trial Court lost its jurisdiction to continue to hear the matter on account of the Third Alteration. I agree with respondent's counsel that that case does not bear out the submission of appellants' counsel. In that case, the action, an employer-employee matter involving an agency of the Federal Government, was filed on 13/1/1993 at the Kwara State High Court which had jurisdiction over the matter as at that date. Decree No. 107 of 1993 - the Constitution (Suspension and Modification) Decree came into effect on 17/11/1993 giving exclusive jurisdiction in the matter to the Federal High Court. It was during the pendency of the action that the Decree came into effect and not when the matter was part-heard as in this instance. I see no conflict apparent, seeming or real, as suggested by appellants' counsel, between Olutola V University of Ilorin supra and Olufunsho V Global Soap and Detergent Industries Ltd supra. The ratio of a case is shaped by the facts of the case and a case is authority only for what it decided. See Olley V Tunji (2013) 10 NWLR (Pt. 1362), 320 and Udo V State (2016) 12 NWLR (Pt. 1525) 1, 25. The facts of the case of Olutola V University of Ilorin supra and Olufunsho V Global Soap and Detergent Industries Ltd are different and so the one can not be authority in respect of the other. In Utih V Onoyivwe supra., the trial Court was held to have lost its jurisdiction to hear the matter because on 18/7/1978 when the suit was filed, the jurisdiction of the trial Court to hear Chieftaincy matters had been ousted by Section 161(3) of the 1963 Constitution of Nigeria and Section 36 of the Chiefs' Law (Bendel State).

The coming into effect of the 1979 Constitution which restored the jurisdiction of the trial Court in Chieftaincy matters was therefore of no moment. That is not the case in this instance in which the trial Court had jurisdiction as at the dates of the filing of the suit and part-hearing of the same. In Adah V National Youth Service Corps supra., the suit was filed at the High Court of Bendel State on 28/7/1995 long after Decree No. 107 of 1993 had come into force, ousting the jurisdiction of that Court and so it was held that that Court had no jurisdiction to entertain the matter. In Osakue V Federal College of Education (Technical) Asaba supra., the Decree No. 107 of 1993 which ousted the jurisdiction of the trial Court came into force on 17/11/1993 while the suit was filed before then on 14/12/1992 but the hearing commenced in 1994, that is after the coming into force of the Decree. The Supreme Court held that the trial Court had lost its jurisdiction. Counsel for the appellant filed a list of additional authorities which he adopted at the hearing. Therein he made reference to Section 11(1) and (2) of the National Industrial Court Act No. 1 2006 as having ousted the jurisdiction of the trial Court. The section provides as follows "(1) In so far as jurisdiction is conferred upon the Court in respect of the causes or matters mentioned in the foregoing provisions of the Act, the Federal High Court, the High Court of a State, the High Court of the Federal Capital Territory, Abuja or any other Court shall, to the extent that exclusive jurisdiction is so conferred upon the Court, cease to have jurisdiction in relation to such causes and matters. (2) Nothing in Subsection (1) of this section shall affect the jurisdiction and powers of the Federal High Court, the High Court of a State or of the Federal Capital Territory, Abuja to continue to hear and determine causes and matters which are part-heard before the commencement of this Act and any proceedings in any such causes or matters, not determined or concluded at the expiration of one year after the commencement of this Act, shall abate." In the first place, the exclusive jurisdiction purportedly conferred upon the National Industrial Court by Section 7 of the said Act does not include employer-employee matters such as termination of employment. Furthermore, the provisions of Section 11(1) and (2) could not affect the jurisdiction of the trial Court to entertain employer-employee matters because as at 2006 when the National Industrial Court Act came into force, it was incapable of taking away the jurisdiction of the State High Court over matters of employment regarding non-Federal agencies conferred by virtue of Section 272(1) of the Constitution of Nigeria, 1999. This is because an Act of the National Assembly (as the National Industrial Court Act, 2006) can not take away jurisdiction conferred by a provision of the Constitution. See Section 1(1) and (3) of the Constitution of Nigeria, 1999 and National Union of Electricity Employees V Bureau of Public Enterprises (2010) 7 NWLR (Pt. 1194) 538. It was the contention of appellants' counsel that the interpretation given to Section 6 of the Interpretation Act by respondent's counsel is inconsistent with the provisions of the Constitution and that an inferior legislation can not confer a jurisdiction which was ousted by a superior legislation. This argument, with due respect, is not attractive as I have already held that the Third Alteration Act did not rob the trial Court of its jurisdiction as it does not have a retrospective effect. Furthermore, Section 318(4) of the Constitution of Nigeria 1999 (as amended) provides that the Interpretation Act shall apply for the purposes of interpreting the provisions of the Constitution." Per EKANEM, J.C.A. (Pp. 10-20, Paras. E-B)