IN THE HIGH COURT OF JUSTICE

OF EDO STATE OF NIGERIA

IN THE UBIAJA JUDICIAL DIVISION
HOLDEN AT UROMI
BEFORE HIS LORDSHIP, HON.JUSTICE P.A.AKHIHIERO,
JUDGE, ON THURSDAY THE
12TH DAY OF NOVEMBER, 2020.

BETWEEN: SUIT NO: HUB/MISC/2F/2020

HON. SAMSON OSAGHAE………………………..…….APPLICANT/RESPONDENT

AND

1. HON. PETER AGUELE

2. MR. MACPHERSON ORIASOTIE ……………….RESPONDENTS/APPLICANTS
3. MR. DONALD EBHOZE

RULING
This is a ruling on a notice of preliminary objection filed by the Respondents/Applicants
on the 1st of July, 2020, urging this Honourable Court to strike out the Applicant’s motion for
the enforcement of his fundamental human rights on the ground that this Honourable Court
lacks jurisdiction to entertain same.
In the main application for the enforcement of his fundamental human rights, the
Applicant is seeking the following reliefs:
(a) A declaration that the assault, physical molestation, dehumanization, abduction
and curtailment of the applicant’s liberty by the respondent on the 14th day of
May 2020 at Ewohimi, are unlawful, unconstitutional and a gross violation of
the applicant’s constitutional rights guaranteed under sections 34, 35 and 41 of
the Constitution of the Federal Republic of Nigeria 1999 as amended.

(b) A declaration that the confinement and restriction of applicant’s movement by

the respondents on the 14th of May 2020 in the 1st respondent’s residence at
Okaigben Ewohimi and Esan South East Local Government Secretariat, Ubiaja
are inhuman, degrading, humiliating, oppressive and a flagrant breach of
Section 41 of the Constitution of the Federal Republic of Nigeria 1999 as
amended.
(c) An order of injunction restraining the respondents, their agents and privies from
further assaulting, molesting, detaining and dehumanizing the applicant in any
manner whatsoever.
(d) The sum of N500, 000,000.00 (Five Hundred Million Naira) being general and
exemplary damages for acts of assault, molestation, dehumanization and false
imprisonment of the applicant by the respondents without any justifiable cause.

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 The events which culminated in the filing of the originating application are that the
Applicant, a Councillor, was allegedly assaulted, molested, abducted, confined and deprived
of his personal liberty by the Respondents on the 14th of May, 2020.
The matter was reported to the Police at the Divisional Police Headquarters Ewohimi
and Police Area Command, Uromi before this application was filed.
Upon receipt of the motion, the Respondents filed a counter-affidavit to the motion and
subsequently filed a Notice of Preliminary Objection to the application.
In the preliminary objection, the Respondents are praying the Court for the following
orders:
1. An order of this Honourable Court striking out this Suit for want of Jurisdiction;
and
2. For such order(s) as this Honourable Court may deem fit to make in the
circumstances of this case.
The grounds upon which this Application is made are:
1. The substratum of the Applicants/Respondents case bother on Labour,
Employment and matters arising from workplace which jurisdiction is exclusively
vested in the National Industrial Court by virtue of Section 254 C of the
Constitution of Federal Republic of Nigeria 1999 (as amended);
2. The jurisdiction to entertain this matter is vested in the National Industrial Court
exclusively and other Courts, including this Honourable Court is excluded; and
3. The Honourable Court lacks Jurisdiction to entertain this matter dated this 20th
day of June, 2020.

The objection is supported by an affidavit of eight paragraphs and the written address
of counsel.
In his written address in support of the preliminary objection, the learned counsel for
the Respondents Bamidele Uche Igbinedion Esq. formulated a sole issue for determination to
wit: whether this Honourable Court should strike out this suit for want of jurisdiction.
Arguing the sole issue for determination, the learned counsel for the Applicant
submitted that there is no competent application before this Honourable Court as this Court
lacks the jurisdiction to entertain this suit and adjudicate over the matter by virtue of Section
254 C (1) of constitution of Federal Republic of Nigeria 1999 (as amended) which states 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 union, industrial relations
and matters arising from work place, the conditions of service including health, safety,
welfare of labour, employee, worker and matters incidental thereto or connected therewith:
(b)……….
(c)……….
(d) relating to or connected with any dispute over the interpretation and application of the
provision of Chapter IV of this Constitution as it relates to any employment, Labour,
Industrial relations, trade unionism, employer’s association or any other matter which the
Court has jurisdiction to hear and determine.
(e)………
(k) relating to or connected with dispute arising from payment or non-payment of salaries,
wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee,

2
worker, political or public office, judicial officer or any civil or public servant in any part of
the Federation and matters incidental thereto:”
Counsel submitted that a combined reading of the above provisions of the Constitution
of Federal Republic of Nigeria 1999 (as amended) will reveal that the jurisdiction to entertain
the case of the applicant which borders on complaint over the alleged breach of their
Fundamental Rights against the Chairman Chief Executive Officer of Esan South East Local
Government who is the 1st Respondent, his Personal Assistant who is the 2nd Respondent and
a Supervisory Councilor in Esan South Local Government Council who is the third Respondent
has been vested in the National Industrial Court to the exclusion of all other Courts including
this Honourable Court.
He submitted that the importance of jurisdiction before a Court of Law can proceed to
entertain a case can never be over emphasized and he referred the Court to the case of
Incorporated Trustees of Algon Vs Riok (Nig.) Limited & Others (2018) LPELR-49233 (CA)
where the Court stated inter alia thus:
“It is no longer debatable that Courts are creatures of the Constitution and the Statutes and
the Constitution and Statutes define their areas of Jurisdiction. A Court or tribunal must
possess the necessary vires to try or embark on adjudication of any cause or matter.”
He also relied on the case of Hitech Construction Co. Limited V. Ude and others
(2016) LPELR 400666 (CA) where the Court held inter alia as follows:
“…Jurisdiction is the life wire to any adjudication as held in the case of NATIONAL UNION
OF ROAD TRANSPORT WORKERS & 5 ANOR V ROAD TRANSPORT EMPLOYERS
ASSOCIATION OF NIGERIA (2012) LPELP- 7840 (SC) where the apex Court reiterated
the importance of jurisdiction in the following words: “it is the wire of a case which should
be determined at the earliest opportunity. If a court has no jurisdiction to determine a case,
the proceedings remain a nullity ab initio no matter how well conducted and decided, this is
so since a defect in the competence is not only intrinsic to the entire process of adjudication.”
Furthermore, learned counsel referred the Court to the following decisions on the same
point: MADULOLU VS NKEMDILIM (1962) 2 SCNLR 341; A.G FEDERATION VS
GUARDIAN NEWSPAPERS LTD. (1999) 9 NWLR (PT. 618) 187; and HON. JUDGE,
UPPER SHARIA COURT, TUDUN WADA, KADUNA & ORS VS UMAR & ORS (2013)
LPELR-22608 (CA).
He therefore urged the Court to hold that the application for the enforcement of
fundamental human rights is incompetent and should be struck out.
Subsequently, the Respondents filed a six paragraphs further and better affidavit in
support of the Notice of Preliminary Objection together with a Reply on points of law in further
support of the Notice of Preliminary Objection.
In the said reply the learned counsel pointed out that the Applicant contended that the
High Court has the exclusive jurisdiction to entertain issues or disputes relating to breaches of
fundamental human rights and relied on the provisions of Section 46(1) of the Constitution of
the Federal Republic of Nigeria 1999 (as amended) and Order 1 of the Fundamental Rights
(Enforcement Procedure) Rules 2009.
On point of law, he submitted that the above contention of the Applicant is
misconceived and does not represent the position of the law. While conceding that Section
46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 1
of the Fundamental Rights (Enforcement Procedure) Rules 2009 vested jurisdiction to
entertain allegation of breaches of fundamental right on the High Court in that State, he
submitted that Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as

3
amended) is subject to other provisions of the Constitution including Section 254C (1) (d) (f)
of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
He posited that the Constitution of the Federal Republic of Nigeria 1999, was
amended in 2010 by the 3rd Alteration Act 2010 with a view, among others, to subject Section
46(1) of he of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to the
new Section – Section 245C (1) (d) (f) of the Constitution of the Federal Republic of Nigeria
1999 (as amended).
He posited that for clarity of purpose and to avoid any form of ambiguity and to
eliminate any supremacy contest between the different sections of the Constitution, Section
254C (1) therein was couched as follows:

“Notwithstanding the provisions of sections 251, 257, and 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-“ (emphasis, his).

Learned counsel submitted that from the very nature and tenor of the express provisions
of Section 254(1) of the Constitution, notwithstanding anything contained in any part of the
Constitution, (including Section 46(1) therein), the National Industrial Court has the
jurisdiction to the TO THE EXCLUSION OF ANY OTHER COURT, to entertain any matter
listed in Section 254C(1) of the Constitution of the Federal Republic of Nigeria 1999 (as
amended). According to him, Section 46(1) of the Constitution is subject to the Section 254C
(1) of the Constitution and he urged this Court to so hold.
Furthermore, he submitted that while Section 46(1) of the 1999 Constitution is a general
provision, Section 254C (1) of the 1999 Constitution is a specific provision. He therefore
submitted that it is trite that where there is a general provision and a specific provision, the
specific provision prevails over the general provision and it is deemed to be excluded from the
application of the general provision. For this view, he referred the Court to the case of
INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR-1510(SC) wherein the Supreme
Court, per TOBI, J.S.C (of blessed memory) at page 117, paragraphs C-E, held thus:

"The law is elementary that where the Constitution or a statute

contains a general provision as well as a specific provision, the specific
provision will prevail over the general provision. In this wise, it is my
view that the specific provision of Section 188(9) will prevail over the
general provision of Section 102. Accordingly, the removal of the 3rd
respondent is governed by Section 188(9) and not Section 102 of the
Constitution." (emphasis of counsel)

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He also referred to the case of AG LAGOS STATE V. AG FEDERATION & ORS (2014)
LPELR-22701(SC), where the Supreme Court, per MUHAMMAD,J.S.C at pages 52-54,
paragraphs E-A, held thus:

"The specific jurisdiction vested in the Federal High Court under

Section 251(1) (a), (b) and (q) is exercisable "notwithstanding
anything to the contrary in the Constitution" including the original
jurisdiction conferred on the Supreme Court under the earlier Section
232(1) of the same Constitution. The applicable principle of
interpretation in this instance remains what Bairamian, J. (as he then
was) in delivering the judgment of the then West African Court of
Appeal in Mrs F. Bamgboye v. Administrator General 14 WACA 616
at page 619 stated thus: "It is an accepted canon of construction that
where there are two provisions, one special and the other general,
covering the same subject matter, a case falling within the words of
the special provision must be governed thereby and not by the terms of
the general provision. The reason behind this Rule is that the
legislature in making the special provisions is considering the
particular case and expressing its will in regard to that case; hence the
special provision forms an exception importing the negative; in other
words, the special case provided for in it is excepted and taken out of
the general provision and its ambit: the general provision does not
apply...The above Rule of construction applies equally, of course,
when the special and the general provision are enacted in the same
piece of legislation: see Dryden v The Overseers of Putney (2)." This
Court in its decisions too numerous to readily fathom has cited with
approval the foregoing dicta and imbibed the principle so adroitly
enunciated therein. See The Governor of Kaduna State & Others v.
Lawal Kagoma (1982) 6 SC 87 at 107-108; Kraus Thompson
Organisation Ltd v. National Institute for Policy and Strategic Studies
(2004) LPELR - 1714 (SC); (2004) 9 NWLR (Pt 879) 61 and Schroeder
v. Major (1989) 2 NWLR (Pt.101) 1 and Orubu v. NEC (1988) 5
NWLR (Pt.94) 323." (Emphasis of counsel).

Again, he referred to the case of MADUMERE & ANOR V. OKWARA & ANOR (2013)
LPELR-20752(SC).
Flowing from the foregoing decisions of the Supreme Court, he urged the Court to hold
that the specific provisions of Section 254C (1) of the 1999 Constitution prevails over the
general provision of Section 46(1) of the 1999 Constitution. Thus he submitted that the
interpretation and application of Chapter IV of the 1999 Constitution with respect to matters
or events relating to or incidental to work place or employment, is within the exclusive
jurisdiction of the National Industrial Court.
Responding to the Applicant’s/Respondent’s contention that none of the parties are
employees of the Esan South East Local Government Area, counsel submitted that the

5
Applicant/Respondent misconstrued the extent of the application and jurisdiction of the
National Industrial Court. He submitted that the jurisdiction of the National Industrial Court is
not only limited to mere employment issues but extends beyond mere employment. According
to him their jurisdiction includes public officers who are elected, political office appointees
and all others provided the persons in question are paid wages, salaries, allowances or other
remunerations. He maintained that public officers (whether elected or appointed) are deemed
to be in the employment of the said institutions.
Learned counsel referred the court to Section 254C (1) (k) of the Constitution of the
Federal Republic of Nigeria 1999 which provides that the jurisdiction of the National
Industrial Court include matters:
“relating to or connected with disputes arising from payment or nonpayment of
salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement
of any employee, worker, political or public office holder, judicial officer or any
public servant in any part of the Federation and matters incidental thereto:”

He therefore urged the Court to discountenance the restricted interpretation of the

Applicant/Respondent and hold that the jurisdiction of the National Industrial Court extends to
public office holders and Government appointees.
He posited that the Applicant/Respondent also contended that the breach of the
fundamental rights is not labour related and thus, it is not within the Jurisdiction of the National
Industrial Court. Responding to this, he submitted that it is trite that in determining Jurisdiction
of the Court, what is considered is the originating processes of the Applicant and referred to
the case of Zakirai V. Muhammad & Ors (2015) LPELR- 40387 (CA). He said that in this
case, the originating processes are the Originating Motion, the supporting Affidavit and the
Written Address.
He referred to paragraph 2 of the Affidavit of the Applicant in support of the Originating
Motion where he stated that he is an elected Councillor in Esan South East Local Government
Area of Edo State. He said by that very deposition, he has shown that he was on the pay roll of
the Esan South East Local Government Area for his work/function/duties as the elected
Councillor in the Esan South Local Government Area. He urged the Court to so hold.
Again he referred to paragraphs 4, 5, and 6 of the supporting Affidavit where the
Applicant alleged that he was invited for a meeting through the Secretary to the Local
Government, at the residence of the Chairman of the Esan South East Local Government Area,
with respect to the alleged directive “to change the leadership of the Legislative Arm in the
Esan South East Local Government Council, Ubiaja”.
He posited that the Applicant from Paragraphs 8-18 of the supporting Affidavit alleged
that his fundamental rights were breached by the Respondents in furtherance of his
work/duty/functions as an elected Councilor in Esan South East Local Government Area.
He submitted that the alleged grievances of the Applicant/Respondent in this case all
relate to the alleged breaches of his fundamental rights at work places or matters incidental to
or arising from his workplace. He maintained that the grievances involve matters, “relating to
or connected with any dispute over the interpretation and application of the provisions of
Chapter IV of this Constitution as it relates to any employment, labour, industrial relations,

6
trade unionism, employer’s association or any other matter which the Court has Jurisdiction
to hear and determine.”
He therefore submitted that by Section 254C (1)(d) of the Constitution of the Federal
Republic of Nigeria 1999, the allegation of the breaches of his Applicant’s Fundamental right
is within the exclusive jurisdiction of the National Industrial Court, to the exclusion of the any
other Court and urged the Court to strike out this case.
Again, he submitted that the Counter Affidavit deposed by Charles Odia is incurably
defective, hearsay and liable to be struck out for being in breach of the mandatory provision of
Section 115 of the Evidence Act 2011.
He referred to Section 115 of the Evidence Act 2011 which provides thus:
1. “Every affidavit used in the Court shall contain only a Statement of facts
and circumstances to which the witness deposes, either of his personal
knowledge or from information which he believes to be true.
2. An affidavit shall not contain extraneous matter, by way of objection, or
prayer, or legal argument or conclusion.
3. When a person depose to his belief in any matter of fact, and his belief is
derived from any source other than his personal knowledge, he shall set
forth explicitly the facts and circumstances forming the ground of his
belief.
4. When such belief is derived from information received from another
person, the name of his informant shall be stated, and reasonable
particulars shall be given respecting the informant, and the time, place
and circumstance of the information

He observed that the deponent of the Counter Affidavit is not a party to this case and
the facts deposed are not within his knowledge and he never specified any particulars of the
informant. He never stated the particulars of any person who informed him of the facts deposed
to in paragraphs 1-7 of the Counter Affidavit. He said that with respect to paragraphs 8-10 of
the Counter Affidavit, the deponent never stated the place, time, location and all other
reasonable particulars of the informant.
He submitted that in compliance with Section 115 of the Evidence Act, the entire
Counter Affidavit is liable to be struck out for non-compliance to Section 115 of the Evidence
Act 2011. He relied on following decisions on the point: John Obi V. Udochukwu Ojukwu &
Anor (2009) LPELR-8511(CA); and SULEJA V. ABUBAKAR & ORS (2019) LPELR
47899(CA).
He therefore urged the Court to strike out the Counter Affidavit of Charles Odia, who
is not a party to this suit and uphold the preliminary objection.
In his address the learned counsel Dr. P.E.Ayewoh Odiase formulated the following
issues for the Court’s determination:-

1. Whether this Honourable Court has exclusive jurisdiction to entertain and determine
issues bordering on enforcement of fundamental human rights contained in chapter
IV of the 1999 constitution?

7
2. Whether from the Applicant/Respondent’s motion and affidavit evidence, labour
related issues have been introduced to activate the jurisdiction of the National
Industrial Court over the subject matter of this suit?
Thereafter, the learned counsel argued the two issues seriatim.

ISSUE ONE:
On issue one, he submitted that the applicant’s reliefs fall under chapter IV of the 1999
Constitution as amended. That Sections 33 to 45 of the 1999 Constitution enumerates the
fundamental rights of Nigerian citizens which range from right to life, right to the dignity of
the human person, right to personal liberty, right to fair hearing among others. He said that
Section 46(I) of the 1999 Constitution highlights the procedure for the enforcement of the
fundamental rights contained in Chapter IV of the Constitution. That by the clear and
unambiguous provisions of Section 46(1) and (2) of the 1999 Constitution, the High Court in
a state has exclusive jurisdiction to entertain matters bordering on breach of fundamental rights.
He said that in the case of Federal Republic of Nigeria V Ifegwu (2003) 6 NWLR part 842
page 113 at pages 119 – 200 paras. E – B, the Supreme Court held that the High Court is
conferred with special jurisdiction under Chapter IV of the 1999 Constitution to entertain
matters bordering on enforcement of fundamental rights. That in the case of University of
Calabar V Ugochukwu (2007) 17 NWLR part 1063 page 225 at 224 – 225 paras. B – E, the
Court of Appeal held that the special provision in Section 46(1) can be invoked only if the right
sought to be enforced can be found in Sections 33 – 46 of the 1999 Constitution.
He submitted that a calm perusal of paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of the
applicant/respondent’s supporting affidavit reveals that the respondents/applicants molested,
assaulted, abducted and falsely imprisoned the applicant which acts contravene chapter IV of
the 1999 constitution.
He submitted that the phrase “a High Court in that state”, as contained in Section
46(1) of the 1999 Constitution as amended, refers to either a State High Court or a Federal
High Court to the exclusion of any other Court. He referred to the case of Uwa V Akpan (2010)
47 WRN page 85 at (P. 92) lines 15 – 20, where the Court of Appeal held as follows:

“Both the State High Court as well as the Federal High Court have Concurrent
Jurisdiction in handling issues of fundamental rights. If a State High Court refuses
to make an order entitling an applicant to enforce his fundamental right, this will not
preclude the Federal High Court from entertaining the same application because
such proceedings are akin to applications for bail”.

He submitted that the original jurisdiction of the High Court to entertain applications
for the enforcement of the fundamental rights of the Nigerian Citizens, remains sacrosanct and
inviolable. He relied on the case of Ushae V Commissioner of Police, Cross River State
Command, (2006) 1 FWLR part 287, page 267 at (P. 284, paras. C – G, where the Court of
Appeal held as follows:

“By virtue of Section 46(2) of the 1999 Constitution, a High Court is given original
jurisdiction to hear and determine any application made to it in pursuance of the
provisions of the said section. It also has very wide powers to make such orders, issue
such writs and give such directions as it may consider appropriate for the purpose of
enforcing or securing the enforcement, within the state, of any rights to which the
person who makes the application may be entitled under the Fundamental Rights
Chapter of the Constitution”.

8
 Counsel submitted that the exclusive jurisdiction of the High Court in a state to entertain
applications for the enforcement of fundamental rights, is also replicated in the Fundamental
Rights (Enforcement Procedure) Rules 2009 which defines ‘Court’ under Order I as follows:

“Court means the Federal High Court or the High Court of a State or the High Court
of the Federal Capital Territory, Abuja”.

He submitted that where in a provision of a Constitution as in the instant case, any other
thing not mentioned therein, is excluded on the principle of expressio unius est exclusio
alterius. He relied on the case of Okoroafor V Emeka (2015) 34 WRN, page 45 at (P. 129)
lines 30 – 40, where the Court of Appeal held thus:

“It is judicially settled across jurisdictions that where a provision of the Constitution
or a statute mentions subjects, items or things to which it applies, it clearly intends
that the subject, item or thing not mentioned is excluded from its application. This
interpretative approach is often expressed in the latin maxim, expressio unius est
exclusio alterius (to express or include one thing implies the exclusion of the other
or of the alternative)”. So the violations or threatened violations is vested in a person
by Section 46(1) of the 1999 Constitution and Order II Rule I of the Fundamental
Rights (Enforcement Procedure) Rules, invokes the special jurisdiction of the High
Court to entertain and determine fundamental rights application”.

In the light of the aforementioned, he urged this Court to resolve issue one in the
affirmative.

ISSUE TWO:
On the two, learned counsel submitted that the applicant’s reliefs are not anchored on
labour dispute. That a careful perusal of the applicant’s motion shows that it has nothing to do
with any labour related issue. That by the clear provisions of Section 244C of the Constitution
of Federal Republic of Nigeria (third Alteration) Act 2010, all issues relating to or connected
with any labour, employment and matters arising from workplace as in the instant case, fall
within the jurisdiction of the National Industrial Court.
He referred to Section 254C (1) of the Nigerian Constitution which provides as follows:
“Notwithstanding the provisions of section 251, 257, 282 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;

(b) relating to, connected with or arising from Factories Act, Trade Dispute Act, Trade
Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law
relating to Labour, employment, Industrial relations, workplace or any other
enactment replacing the Acts or Laws;

(c) relating to or connected with disputes arising from payment or non-payment of

salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement

9
 of any employee, worker, political or public office holder, judicial officer or any civil
or public servant in any part of the federation and matters incidental thereto.

(d) relating to or connected with any dispute over the interpretation and application of
the provisions of chapter IV of this Constitution as it relates to any employment,
labour, industrial relations, trade unionism, employer’s association or any other
matter which the Court has jurisdiction to hear and determine;”

He submitted that the applicant’s reliefs are clearly outside the ambit of Section 254C-
(1) of the 1999 Constitution as amended.

He submitted that at this stage, it is important to decipher the meaning of ‘trade dispute’
in other to know whether the provisions of Section 254C (1) (d) of the Constitution applies to
the facts of this case.
He referred to the case of Oshiomhole V Federal Government of Nigeria (2007) 21
WRN, pge 100 at P. 120 lines, where the Court of Appeal held as follows:

“For a dispute to be declared a trade dispute within the meaning of section 47 of the
Trade Dispute Act Cap. 432, Laws of the Federation of Nigeria 1990, the following
ingredients must be present:
(a) There must be dispute;
(b) The dispute must involve a trade;
(c) The dispute must be between:
(i) employers and workers; or
(ii) workers and workers;
(d) the dispute must be connected with:
(i) the employment or non-employment, or
(ii) the terms of employment, or
(iii) physical conditions of work of any person”.

He submitted that from the above authority, the bone of contention between the parties
in this suit which led to the abridgment of the applicant/respondent’s fundamental rights,
revolves around political disagreement. See paragraphs 2, 3, 4, 5, 6 and 7 of the
applicant/respondent’s supporting affidavit. He further submitted that from the said
paragraphs of the applicant’s supporting affidavit, the 1st respondent, a Local Government
Chairman, coerced the applicant, an elected Councillor and his colleagues to effect the change
of leadership of Esan South East Local Government Legislative Arm. He submitted that such
change of leadership contemplated by the 1st respondent/applicant amounts to impeachment
and not a labour dispute. He further submitted that the relationship between the applicant, an
elected Councillor representing Ward 10 and the 1st respondent, an elected Local Government
Chairman, cannot be that of an employer and an employee under Section 47 of the Trade
Dispute Act. On the role of Local Government, he cited Section 7(1) of the 1999 Constitution
as amended and the case of Akpan V Umah (2002) FWLR part 110, page 1820 at Pp. 18 –
37 1838 paras H – A.
Counsel submitted that the 2nd and 3rd respondents being political appointees of the 1st
respondent who is the head of the executive arm of Esan South East Local Government
Council, are not employees of the applicant/respondent. On whether the issue of impeachment
amounts to labour dispute, he cited the case of Adeleke V Oyo State House of Assembly
(2006) 4 FWLR part 340, page 6094 at Pp. 67 72, 6773, paras. G – A. He therefore submitted
that since there is nothing to suggest that the jurisdiction of this Honourable Court has been

10
vitiated by reason of trade dispute and/or intra union dispute between the parties in this suit,
this Honourable Court is clothed with exclusive jurisdiction to entertain and determine the
applicant/respondent’s reliefs under chapter IV of the 1999 Constitution as amended.

He submitted that in determining whether a Court is validly constituted, Ngwuta JSC

in the case of Nsirim V Amadi (2016) Vol. 253, page 115, held as follows:
“Jurisdiction in its strict sense is the limits which is imposed upon the power of a validly
constituted Court to hear and determine issues properly brought before it by due process by
reference to:
(1) The subject matter in issue
(2) The persons between whom the issue is joined, and
(3) The kind of relief sought”.
He further submitted that where a statute has conferred exclusive jurisdiction on a
particular court to entertain a particular cause, no other court can assume jurisdiction to
entertain any dispute relating to such cause. He referred to the case of Ibrahim V Fulani
(2009) 18 WRN Page 40 at P. 108 lines 35 – 45, the Court of Appeal held thus:

“It is a basic principle of law that jurisdiction of a court is very fundamental to the
adjudication of the matter before it. It is so radical that it forms the foundation of
adjudication. If a court lacks jurisdiction, it lacks the necessary competence to
entertain the claim before it. That is why the issue of jurisdiction, where raised,
whether by the parties or by the Court itself, suo motu, must be determined in limine.
Whether an objection is raised to jurisdiction of the trail Court to try an action, the
Court at that stage, has to enquire into whether in fact it possesses the requisite
jurisdiction to so proceed”.

Similarly he referred to the case of Ohakim V Agbaso (2010) Vol. 189 LRCN, page 73, where
the Supreme Court of Nigeria, held as follows:

“It is settled that jurisdiction is the life blood of any adjudication without which no
proceeding, however brilliantly conducted by the Court or Tribunal can be valid. It
is really a threshold matter or sometimes referred to as a periphery matter to be dealt
with once raised or challenged in any proceeding. Without jurisdiction, the whole
trial or proceeding of the Court is a nullity however well conducted, that is why
jurisdiction is very vital and fundamental to administration of justice in any judicial
system”.

Counsel submitted that jurisdiction of a Court to entertain any suit is determined by the
claim of the plaintiff as in the instant case and relied on the case of Santory Company Ltd. V
Bank of the North Lt. (2005) 8 NWLR part 925, page 594 at P. 610, para H.
He submitted that the National Industrial Court has jurisdiction to entertain only labour
related issues or inter or intra union dispute not contemplated under Chapter IV of the 1999
Constitution as amended. He referred the Court to the case of Gbagede V National Union of
Road Transport Workers, Taraba State (2006) 2 FWLR, part 316, page 3134 at Pp 3149 –
3150, Paras G – A, where the Supreme Court held as follows:

“Action relating to inter or intra union dispute cannot be commenced in any Court
of Law. Only the National Industrial Court can adjudicate on such type of dispute
to the exclusion of any Court of Law. The jurisdiction of the High Court has been

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 ousted by the provision of Trade Dispute Act: I(A)(l) has conferred jurisdiction on
the National Industrial Court to adjudicate to the exclusion of any Court of law in:
(a) an action, the subject matter of a Trade Union as defined under Section 47 of
the Trade Dispute Act, or
(b) an action, the subject matter of any inter or intra union dispute”.

He submitted that the jurisdiction of the National Industrial Court does not include
making declarations and injunctive orders in respect of Chapter IV of the 1999 Constitution as
amended, which only the State High Court has jurisdiction. See the case of Attorney-General
Oyo State V Nigeria Labour Congress (2003) 8 NWLR part 821, page 1 at P. 28 Paras. A –
B.
He submitted that since the applicant or the respondents cannot be described as
employer, employee or worker under Section 254C(I) of the Constitution of the Federal
Republic of Nigeria 1999 as amended for the purpose of activating the jurisdiction of the
National Industrial Court, the objection by the respondents/applicants should be
discountenanced. He finally cited the case of Apena V National Union of Printing Publishing
and Paper Products (2003) 8 NWLR, part 822, page 426 at P. 443, paras. G – F.
At the hearing of this objection, the learned counsel for the Applicant Dr. Ayewoh
Odiase informed the Court that he was adopting all the additional authorities which he relied
upon in the sister case of HUB/MISC/1F/2020 as well as the arguments canvassed therein.
I have carefully considered all the processes filed in this application, together with the
arguments of the learned counsel for the parties. I am of the view that the sole issue for
determination in this application is as follows:
Whether this Court has Jurisdiction to entertain this Suit?
Essentially, this issue is concerned with whether it is the High Court or the National
Industrial Court that has the jurisdiction to determine the main application which is for the
enforcement of the Applicant’s fundamental human rights.
The issue of jurisdiction is fundamental and pivotal to any proceedings. It has been
described as the life blood of any adjudication. It is the fiat, the stamp of authority to adjudicate.
See: Katto vs. C.B.N (1991) 11-12 S.C 176.
A Court can claim to have jurisdiction in respect of a matter if:

(1) 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;

(2) The subject matter of the case is within its jurisdiction and there is no feature
of the case which prevents the Court from exercising its jurisdiction; and

3) The case comes up before the Court initiated by due process of law and upon
fulfilment of any condition precedent to the exercise of the jurisdiction.

In support of the foregoing, see the following decisions on the point:

Madukolu vs. Nkemdilim (1962) 1 All NLR 587; Dangana & Anor vs. Usman & 4 Ors (2012)
2 S.C. (Pt.111) 103; and WESTERN STEEL WORKS LTD vs. IRON STEEL WORKERS
UNION (1986) 3 NWLR Part 30d Pg. 617 D-H, 628.

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 It is an elementary principle of law that the issue of jurisdiction can be raised at any
stage of the proceedings. It can even be raised by the Court suo motu. See: SLB Consortium
Ltd. vs. NNPC (2011) 9 NWLR (Pt.1252) 317 at 335.

In determining the issue of jurisdiction, it is the Claimant’s originating processes that

are to be considered. See: Okorocha vs. UBA Plc. (2011) 1NWLR (Pt.1228) 348 at 373; and
A.G. Federation vs. A.G.Abia (2001) 11NWLR (Pt.725) 689 at 740.

Furthermore, it is settled law that it is the statute creating the Court that determines the
jurisdiction of that court. See: Chief Daniel Awodele Oloba vs. Isaac Olubodu Akereja (1998)
7 S.C. (Pt.1) 1 at 21.

In the instant case the learned counsel for the Respondents/Objector, relying heavily on
the provisions of the relevant statutes creating the National Industrial Court, has contended that
the said Court has exclusive jurisdiction over this matter.

As earlier stated, in determining the issue of jurisdiction, it is the Claimant’s originating

processes that are to be considered. See: Okorocha vs. UBA Plc. (2011) 1NWLR (Pt.1228)
348 at 373; and A.G. Federation vs. A.G.Abia (2001) 11NWLR (Pt.725) 689 at 740.

The learned counsel for the Respondent/Objector has submitted that the claims as
presently constituted falls within the provisions of Section 254 C (1), so this Court lacks
jurisdiction as same has been expressly taken away by the aforesaid section.

Specifically the jurisdiction of the National Industrial Court is as enshrined in Section

254 C (1) (a)-(m) of the 1999 Nigerian Constitution (Third Alteration) Act, 2010 No. 3 which
provides as follows:

254. (1)Notwithstanding the provisions of sections 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;
b) relating to, connected with or arising from Factories Act, Trade Disputes Act,
Trade Unions Act, Labour Act, Employees' Compensation Act or any other
Act or Law relating to labour, employment, industrial relations, workplace or
any other enactment replacing the Acts or Laws;
c) relating to or connected with the grant of any order restraining any person or
body from taking part in any strike, lock-out or any industrial action, or any
conduct in contemplation or in furtherance of a strike, lock-out or any
industrial action and matters Connected therewith or related thereto;
d) relating to or connected with any dispute over the interpretation and
application of the provisions of Chapter IV of this Constitution as it relates to
any employment, labour, industrial relations, trade unionism, employer's
association or any other matter which the Court has jurisdiction to hear and
determine;

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 e) relating to or connected with any dispute arising from national minimum
wage for the Federation or any part thereof and matters connected therewith
or arising therefrom;
f) relating to or connected with unfair labour practice or international best
practices in labour employment and industrial relation matters;
g) relating to or connected with any dispute arising from discrimination or
sexual harassment at workplace;
h) relating to, connected with or pertaining to the application or interpretation
of international labour standards;
i) connected with or related to child labour, child abuse, human trafficking or
any, matter connected therewith or related thereto;
j) relating to the determination of any question as to the interpretation and
application of any- (i) collective agreement; (ii) award or order made by an
arbitral tribunal in respect of a trade dispute or a trade union dispute; (iii)
award or judgment of the Court; (iv) term of settlement of any trade dispute;
(v) trade union dispute or employment dispute as may be recorded in a
memorandum of settlement; (vi) trade union constitution, the constitution of
an association of employers or any association relating to employment,
labour, industrial relations or work place; (vii) dispute relating to or
connected with any personnel matter arising from any free trade zone in the
Federation or any part thereof;
k) relating to or connected with disputes arising from payment or nonpayment
of salaries, wages, pensions, gratuities, allowances, benefits and any other
entitlement of any employee, worker, political or public office holder, judicial
officer or any civil or public servant in any part of the Federation and matters
incidental thereto;
l) relating to- (i) appeals from the decisions of the Registrar of Trade Unions,
or matters relating thereto or connected therewith; (ii) appeals from the
decisions or recommendations of any administrative body or commission of
enquiry, arising from or connected with employment, labour, trade unions or
industrial relations; and (iii) such other jurisdiction, civil or criminal and
whether to the exclusion of any other court or not, as may be conferred upon
it by an Act of the National Assembly;
m) relating to or connected with the registration of collective agreements.
In order to determine whether the reliefs fall within the provisions of Section 254 C (1),
we need to examine them closely. For the avoidance of doubt, in the main application for the
enforcement of his fundamental human rights, the Applicant is seeking the following reliefs:
(a) A declaration that the assault, physical molestation, dehumanization,
abduction and curtailment of the applicant’s liberty by the respondent on the
14th day of May 2020 at Ewohimi, are unlawful, unconstitutional and a gross
violation of the applicant’s constitutional rights guaranteed under sections
34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 as
amended.

(b) A declaration that the confinement and restriction of applicant’s movement

by the respondents on the 14th of May 2020 in the 1st respondent’s residence
at Okaigben Ewohimi and Esan South East Local Government Secretariat,
Ubiaja are inhuman, degrading, humiliating, oppressive and a flagrant
breach of Section 41 of the Constitution of the Federal Republic of Nigeria
1999 as amended.

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 (c) An order of injunction restraining the respondents, their agents and privies
from further assaulting, molesting, detaining and dehumanizing the
applicant in any manner whatsoever.
(d) The sum of N500, 000,000.00 (Five Hundred Million Naira) being general
and exemplary damages for acts of assault, molestation, dehumanization and
false imprisonment of the applicant by the respondents without any justifiable
cause.
A careful examination of the above reliefs will reveal that they are in respect of the
enforcement of the Applicant’s fundamental human rights.
The salient part of the Constitution on the jurisdiction of the National Industrial Court
on the enforcement of fundamental human rights appears to be Section 254 C (1) (d) of the
1999 Constitution (Third Alteration) Act, 2010 No. 3 which provides thus:

“254. (1) Notwithstanding the provisions of sections 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-
d)relating to or connected with any dispute over the interpretation and application of the
provisions of Chapter IV of this Constitution as it relates to any employment, labour,
industrial relations, trade unionism, employer's association or any other matter which the
Court has jurisdiction to hear and determine.”(Underlining, mine)

Upon a careful examination of the above Section 254 C (1) (d), it is evident that it
clearly provides for matters on the enforcement of fundamental rights relating to any
employment, labour, industrial relations, trade unionism, employer's association or any
other matter which the Court has jurisdiction to hear and determine.
In the course of his submissions, the very learned counsel for the
Respondents/Objectors ingeniously submitted that by his depositions, the Applicant has shown
that he was on the pay roll of the Esan South East Local Government Area as an elected
Councilor and his fundamental rights were allegedly breached by the Respondents in
furtherance of his work as a Councilor. He therefore contended that the alleged breaches were
matters incidental to or arising from his workplace within the purview of Section 254C (1) (d)
of the Constitution of the Federal Republic of Nigeria 1999.
From the available facts, it is clear that even though the alleged violation of the
Applicant’s fundamental right to his personal liberty and human dignity occurred during his
employment with the council, the alleged violations did not arise from any dispute relating to
any employment, labour, industrial relations, trade unionism, employer's association or any
other matter which the Court has jurisdiction to hear and determine.
In the case of SCC (NIGERIA) LIMITED & ANOR v. MR. FIDELIS JOSEPH &
ANOR (2020) LPELR-49764(CA) the Court of Appeal, Abuja Division held that the disputes
concerning application of Chapter IV of the 1999 Constitution over which the National
Industrial Court has exclusive jurisdiction is limited to those connected with a matter which
the Court has jurisdiction to hear and determine by virtue of S.254 C-(1) (d) of the 1999
Constitution.
Again, in the case of FERDINAND DAPAAH & ANOR v. STELLA AYAM ODEY
(2018) LPELR-46151(CA), the trial court was the National Industrial Court. At the trial court,
the principal claim was for wrongful termination of appointment while the ancillary relief was
for breach of fundamental human rights. While holding that the matter was within the exclusive
jurisdiction of the trial court, the Court of Appeal exposited thus:

15
“It is crystal clear that Chapter IV provides for right to human dignity and freedom from
discrimination which are both human rights amongst other human rights. The trial Court
therefore can within a claim arising from employment or a claim related to where those
rights are intricately connected and to which workplace related issues arise have jurisdiction.
It is settled that once the alleged breach of human rights is not the principal claim,
the Court with complete or fuller jurisdiction usually hears the claim, and therefore, the trial
Court can hear a claim for wrongful termination where a breach of human right is alleged
as an ancillary issue” (Underlining, mine).
In the instant case, the Applicant’s reliefs are solely on the enforcement of fundamental
human rights. There are no ancillary claims on labour related issues. More importantly, the
alleged violations of human rights did not arise from any dispute relating to any employment,
labour, industrial relations, trade unionism, employer's association or any other matter within
the exclusive jurisdiction of the National Industrial Court as enshrined in the Constitution.
Furthermore, the contention of the learned Respondents’ counsel’s that Section 254C
(1) (k) of the Constitution extends the jurisdiction of the National Industrial Court to include
disputes relating to the payment of salaries and entitlement of political or public office
holders is quite irrelevant because in the main application, there is no such dispute. So Section
254C (1) (k) of the Constitution is clearly inapplicable. The arguments on the dichotomy
between civil servants and public servants are not too relevant. I agree entirely with the
submissions of the learned counsel for the Applicant that the intendment of section 254(c)(1)(d)
of the 1999 Constitution is to activate the jurisdiction of the National Industrial Court over the
provisions of Chapter 4 of the Constitution only if such issues are labour related. It is evident
that the features of a labour dispute are not present in the instant case.
In the event, I am of the view that the matter is within the jurisdiction of this Court
and the preliminary objection is therefore overruled with costs assessed at N20, 000.00
(twenty thousand naira) in favour of the Applicant.

P.A.AKHIHIERO
JUDGE
12/11/2020

COUNSEL:
BAMIDELE UCHE IGBINEDION ESQ….………………APPLICANTS/RESPONDENTS
DR.P.E.AYEWOH ODIASE.........…………………………….RESPONDENT/APPLICANT

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