IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP: HON. JUSTICE P. I. HAMMAN
DATE: 24TH FEBRUARY, 2020 SUIT NO: NICN/PHC/124/2017
BETWEEN:
AKUROMA DAWARIKUBU STEPHEN——– CLAIMANT/RESPONDENT
AND
SEATEAM OFFSHORE LIMITED —————- DEFENDANT/APPLICANT
RULING
This suit was originated by the claimant vide Complaint and Statement of Facts filed on the 5th day of December, 2017, wherein he claims against the defendant as follows:
- A Declaration that it was the negligent act of the Defendant that caused the Claimant’s ill health which is deteriorating as a result of lack of proper medical care, rendering the Claimant incapacitated and not able to work.
- An order directing the defendant to pay the sum of N500,000,000.00 (Five Hundred Million Naira) only be paid by the Defendant to the Claimant as compensation as a result of the negligent act of the Defendant in not observing safety standards procedures in fumigation exercise which has resulted in the deteriorating health of the Claimant.
- An order directing the defendant to pay the claimant the sum of N95,000 (Ninety Five Thousand Naira) only on a monthly basis for the period the claimant ought to have been in employment with the Defendant or any other company with commensurate upward review of the said sum whenever such is necessary.
- An order directing the defendant to pay to the claimant the sum of N100, 000,000.00 (One Hundred Million Naira) as general damages by the Defendant.
This decision is in respect of the Defendant’s Notice of Preliminary Objection dated 12th February, 2019 and filed on 26th February, 2019, challenging the jurisdiction of this court to hear and determine this suit. The reliefs sought are as follows:
- An order of this Honourable Court striking out this suit as presently constituted by the Claimant/Respondent (Respondent) for lack of jurisdiction of this court to entertain same.
- For order and or further relief(s) that this Honourable Court may deem fit to make given the circumstances of this suit.
The grounds for the Objection are as follows:
i. The Respondent instituted this action before this Honourable Court claiming damages as well as other reliefs in action for allegation of negligence against the Applicant vide a Complaint dated the 5th day of December 2017.
ii. The Respondent in its pleading claims that he was employed by the Applicant as a seaman assigned to man the relevant vessels owned the Applicant.(sic)
iii. By virtue of section 2(3) (c) and (r) of the Admiralty Jurisdiction Act, 1991, Cap. A5, Laws of the Federation of Nigeria, 2004; the claim of the Respondent can only be entertained under the Admiralty jurisdiction of the Federal High Court of Nigeria.
iv. This Honourable Court therefore lacks the required jurisdiction to entertain this suit as presently constituted by the Respondent.
In support of the Notice of Preliminary Objection is a Written Address wherein this lone issue was submitted for the determination of the court, to wit; Whether given the pleading of the Claimant/Respondent, this Honourable Court has the jurisdiction to entertain this suit as it is presently constituted.
It was submitted on the lone issue that, jurisdiction being a pivotal issue in trial proceeding must be resolved one way or the other before the court can take any further steps in the matter. See Matari V. Galadima (1993) 3 NWLR (Pt. 281) 266; Anigboro V. Sea Trucks (Nig.) Ltd (1995) 6 NWLR (Pt. 399) 35; Kashikwu Farms Ltd V. AG of Bendel State (1986) 1 NWLR (Pt. 19) 695 and Obada V. Gov. Kwara State (1990) 6 NWLR (Pt. 157) 482.
That in determining whether a court has jurisdiction to adjudicate over a matter, the court is enjoined by law to peruse the case of the claimant as endorsed on the Claimant’s pleadings, referring to Okorocha V. Uba (2011) 1 NWLR (Pt. 1228) 348.
That since the jurisdiction of a court is vested on the court by the statute creating the court, parties cannot by consent or acquiescence confer jurisdiction on the court where the court lacks such jurisdiction. See NDLEA V. Okorodudu (1997) 3 NWLR (Pt. 492) 209.
It was further argued that, the case of the claimant is in the nature of maritime claim which can only be entertained exclusively by the Federal High Court in accordance with the provisions of section 251(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and sections 1(1)(a) and 2(1), (3)(d) of the Admiralty Jurisdiction Act, 1991, Cap. A5, LFN, 2004.
That since the claimant’s grouse relates to allegation of negligence against the Defendant/Applicant while he was onboard one of the Defendant’s vessels, MV ‘DIJAMA’, this court has no jurisdiction to entertain the instant suit in view of the exclusive jurisdiction of the Federal High over admiralty matters. That there is nothing in section 254C of the Third Alteration Act conferring jurisdiction on this court to assume jurisdiction in cases involving a seaman and the owner of a ship which is a maritime claim as in the instant suit.
That since section 251(1) of the Constitution clearly mentions the Federal High Court to the exclusion of this court, the said provision creates a jurisdictional limit on the nature of claim the Federal High Court can entertain to the exclusion of any other court in Nigeria. That courts are enjoined to apply their jurisdictional limits blindly, and not to expand same, and to decline jurisdiction where they have none. See Ifeajuna V. Ifeajuna (2000) 9 NWLR (Pt. 671) 107; Press of Nigeria V. FRN (1985) 2 NWLR (Pt. 6) 137 and Tukur V. Gov. of Gongola State (1989) 4 NWLR (Pt. 117) 517.
The court was finally urged to strike out the instant suit for want of jurisdiction.
In opposition to the Notice of Preliminary Objection, the Claimant/Respondent filed a Written Address on the 22nd day of March, 2019, but deemed as having been properly filed and served on 9the December, 2019. The learned counsel to the Claimant/Respondent adopted the lone issue formulated and argued by the Defendant/Applicant, to wit:
Whether given the pleading of the Claimant/Respondent, this Honourable Court has the jurisdiction to entertain this suit as it is presently constituted.
It was argued on the lone issue that, while it is the position of the law that the Federal High Court has unlimited jurisdiction to entertain admiralty matters by virtue of both section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of the Admiralty Jurisdiction Act, 1991, Cap. A5 LFN 2004, the same Constitution under section 254C(1) created this court and conferred exclusive jurisdiction on this court on issues of compensation arising from master/servant relationships. See Skye Bank V. Iwu (2017) 16 NWLR (Part 1590) 24 at 173 paras. H-B.
That the provisions of section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) which conferred jurisdiction on this court has overridden the provisions of section 2(3)(d) and (r) of the Admiralty Jurisdiction Act, thereby making such provisions null and void for being inconsistent with the constitutional provisions.
That this court has the jurisdiction to entertain the instant suit. The court was urged to refuse the application and assume jurisdiction in the matter.
COURT’S DECISION:
Having carefully considered the Notice of Preliminary Objection and the written submissions of learned counsel to the parties in this suit, this court shall adopt the lone issue identified by the Defendant/Applicant which was adopted and argued by the Claimant/Respondent in determining this Notice of Preliminary Objection.
The highpoint of the Defendant/Applicant’s Notice of Preliminary Objection is simply that considering the provisions of section 2(3)(c) and (r) of the Admiralty Jurisdiction Act, Cap. A5 LFN, 2004, and section 251(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this court lacks jurisdiction to entertain this matter because the case of the Claimant relates to maritime claim which only the Federal High Court can entertain.
The law as to the importance or significance of jurisdiction to trial proceedings and what the court should look at while deciding whether or not it has jurisdiction has been aptly canvassed by learned counsel to the parties, particularly the Defendant/Applicant’s learned counsel.
In considering whether this court has jurisdiction to determine this suit, paragraphs 3, 4, 5, 6, 7, 14 and 15 of the Statement of Facts which are apposite are hereby reproduced for ease of reference:
“3. The Claimant was employed by the Defendant on 2nd day of July, 2014 and was signed onboard MV Seateam Omega in Lagos State on 02/07/2014 as an Able Seaman (AB) and later signed onboard MV Chilosco on the 11/08/2014 also in Lagos State, later again was signed onboard MV Chilosco on the 08/02/2015 at the Federal Lighter Terminal, Onne Port, Rivers State, and was later signed onboard MV Dijama on the 22/08/2015 also at the Federal Lighter Terminal, Onne Port, Rivers State. The Claimant has always completed his contract duration onboard, he has never had any health issue or signed off from work as a result of any health challenge for the period he has worked with the Defendant. The Certificate of Discharge of the Claimant as properly stamped by the Defendant is hereby pleaded and shall be relied upon in the course of the trial.
4.The Claimant was thoroughly and properly screened, examined and tested by NIMASA approved and recommended hospital and a NIMASA certified doctor and was found to be medically fit for seafaring duties so the Claimant was in perfect health and had been issued a medical certificate by the Nigeria Ports Authority Hospital Port Harcourt with a NIMASA Seafarer’s Medical Certificate on 20/08/2015 and has been performing his duties efficiently and effectively to the best of his abilities. The Nigerian Maritime Administration and Safety Agency (NIMASA) Seafarer’s Medical Certificate is hereby pleaded and shall be relied upon in the course of the trial.
- Upon signing onboard M. V. Dijama, the Claimant sailed with M. V. Dijama to Erha Oil Field and returned back to Onne/Ikpokiri Sea Port on 1/9/15. Upon arrival the Management of the Defendant company sent a fumigation contractor to carry out a fumigation exercise onboard M. V. Dijama, which was politely objected to by the crew and also laid complaint to the Management of the Defendant’s Company which complaint fell on deaf ears.
- The Management of the Defendant Company instructed that the fumigation should be carried out and was actually carried out onboard M. V. Dijama on 1/9/15 against their consent. (Claimant and others)
- After 2 (two) hours of aeration as advocated by the management of the Defendant while the vessel was yet to be properly aerated and ventilated, crew members were asked to go into the toxic infected accommodation to sleep. The Claimant and other crew members had to bow to the superior power of nature as a result of extreme tiredness and fatigue to sleep in the already toxic infected accommodation even though the defendant’s management gave the accommodation a clean bill of health in line with the Defendant’s contractor’s advice. While sleeping in the accommodation the Claimant suffered severe breathing difficulties, pains in the lungs and chest, acute headache, coughing, sneezing and itching and watery eyes as a result of the toxic air in the accommodation and this is a breach of the Management’s obligation in keeping a decent, conducive and relaxing atmosphere for work and rest onboard and against standard as prescribed by the International Safety Management (ISM Code) for the right of seafarers as regards work and rest hours.
PARTICULARS OF NEGLIGENCE
(i) Non adherence to safety standards.
(ii) Refusal to provide accommodation during the fumigation exercise.
(iii) Refusal to provide medical care to ease the effect of fumigation.
(iv) Refusal to allow days off for fumigation to take place.
(v) Refusal to allow aeration of the fumigation to properly take place.
- The Claimant was on duty watch on the previous fumigation exercise of 1/09/2015 and also the second fumigation exercise on 7/10/2015 in which the latter fumigation exercise was very thorough and comprehensive as no part of the vessel was left out. The whole environment was as if the vessel was on fire, everywhere was smoked up and a very bad, irritating and offensive odour emerged.
PARTICULARS OF NEGLIGENCE
(i) Non adherence to safety standards.
(ii) Refusal to provide accommodation during the fumigation exercise
(iii) Refusal to provide medical care to ease the effect of fumigation.
(iv) Refusal to allow days off for fumigation to take place
(v) Refusal to allow aeration of the fumigation to property take place.
- The Claimant inhaled a lot of the toxic chemical as a result of carrying out his legitimate duty with the Defendant’s company in securing the vessel. The smell/odour was choking and Claimant began feeling dizzy and decided to disembark from the vessel, broke his right thumb and vomited 3 (three) times accompanied with coughing, sneezing and also having itching and watery and sand like feeling in his eyes, acute headache, pains and itching in his throat, pains in the lungs and chest, difficulties in breathing. After four (4) hours of aeration as advocated by the defendants management crew members were asked to go into accommodation to sleep; a practice that fall short of minimum safety guidelines and procedures of vessel fumigation. While sleeping after duty the claimant suffocated several time in the cabin due to the offensive odour and toxic nature of the air in the accommodation which resulted to the above mentioned health challenges.
Section 2(3) (c), (d) and (r) of the Admiralty Jurisdiction Act Cap. A5 LFN 2004 provides thus:
“2(3) A reference in this Act to a general maritime claim is a reference to-
(c) a claim for loss of life or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship;
(d) subject to subsection (4) of this section, a claim, including a claim for loss of life or personal injury, arising out of an act or omission of –
(i) the owner or charter of a ship;
(ii) a person in possession or control of a ship;
(iii) a person for whose wrongful act or omission the owner, charter or person in possession or control of the ship is liable;
(r) a claim by a master, or a member, of the crew, of a ship for-
(i) wages; or
(ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including by operation of the law of a foreign country.”
The Defendant/Applicant’s learned counsel submitted strenuously that, from the provisions of the Admiralty Jurisdiction Act reproduced above, this court has no jurisdiction to entertain this suit; that jurisdiction is vested on the Federal High Court.
With respect to learned counsel, this argument would have been correct and credible if it had been canvassed prior to the coming into effect of the 3rd Alteration to the Constitution of the Federal Republic of Nigeria 1999. With the coming into effect of the 3rd Alteration which is now section 254C of the 1999 Constitution, as amended, particularly sub-section (1)(a) thereof, that argument is misplaced and of no moment. Section 254C(1)(a) clearly vests this court with the exclusive jurisdiction to hear and determine civil causes and 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. The National Industrial Court of Nigeria being a specialized court created for expeditious determination of all labour and employment related matters exercises its jurisdiction to the exclusion of any other court in this country (including the Federal High Court).
In any case, if there was any doubt relating to the post-3rd Alteration status and jurisdiction of this court, same has been finally put to rest in a plethora of cases including Skye Bank Plc V. Victor Anaemem Iwu (2017) 11 ACELR 1; Aina Olufunsho & Ors. V. Global Soap and Detergent Industries Limted (2014) 4 ACELR 104; and Waziri Umaru Federal Polytechnic Birnin Kebbi & Ors. V. Dr. Haliru Bala (2018) 12 ACELR 59 at 79 where the Court of Appeal aptly put it in these words, “In any ways, without having to mince words on the issue, the current position of the law is that by virtue of 254(C)(i)(a)&(b) of the 1999 Constitution, as amended, which came into effect on the 4-3-2011, the Federal High Court was completely divested of its jurisdiction to entertain any matters described therein, particularly those dealing with the employment and/or dismissal of the respondent herein from the appellants’ institution.”
Having perused the claimant’s pleadings, particularly the paragraphs of the Statement of Facts earlier reproduced in this Ruling, I am satisfied that the case of the Claimant falls within the circumscribed jurisdiction of this court being claims relating to health and safety of a worker while onboard a ship and working for the Defendant. The argument that since section 251(1) (g) of the 1999 Constitution, as amended, vests jurisdiction on maritime matters on the Federal High Court, hence this court lacks jurisdiction over this case is equally misplaced as there is nothing relating to admiralty/maritime or navigation on the waterways in this suit. The Claimant is simply saying that, he was employed by the Defendant and while executing his work onboard the Defendant’s ship, he became ill due to fumigation exercises carried out by the defendant.
May I say that, from all indications the provisions of section 2(3)(c)(d)&(r) of the Admiralty Jurisdiction Act Cap. A5 LFN 2004 which give the Federal High Court jurisdiction to entertain claims relating to ‘loss of life or for personal injury sustained in consequence of a defect in a ship or in the apparel or equipment of a ship, and claim by master or member of the crew of a ship for wages or amount that a person as employer is under an obligation to pay to a person as employee whether the obligation arose out of the contract of employment or by operation of law, including by operation of law of a foreign country’ are in clear conflict with the provisions of section 254(C) of the 1999 Constitution (as amended) which has donated jurisdiction over such subject matters on this court to the exclusion of any other court in this country (including the Federal High Court).
The law has for long been settled that, in the face of such confrontation, such statutory provision must give way, and the provisions of the Constitution shall prevail.
The said statutory provisions are therefore void to the extent of the inconsistency. See Ekulo Farms Limited & Another V. Union Bank of Nigeria Plc (2006) LPELR-1101(SC), where the apex court stated thus on the implication of any law being inconsistent with the Constitution: “It is also settled law that the Constitution and its provisions constitute the supreme law of the land and that any law or decision which is inconsistent with it or its provisions is to the extent of that inconsistency void.” See also Abubakar Mohammed V. Federal Republic of Nigeria (2013) LPELR-21384(CA).
On the strength of the above cited authorities, and specifically section 1(3) of the 1999 Constitution, as amended, I hold that section 2(3)(c)(d)&(r) of the Admiralty Jurisdiction Act Cap. A5 LFN 2004 offends section 254C of the 1999 Constitution, as amended, and same is hereby declared void to the extent of its inconsistency with the constitutional provisions vesting this court with exclusive jurisdiction over labour and employment related cases.
It is however hoped that, with the coming into effect of the 3rd Alteration to the Constitution relating to the exclusive jurisdiction of this court, the legislature will do the needful to ensure that such pre-3rd Alteration Acts/Laws vesting original jurisdiction on the Federal High Court and other courts on issues of labour, employment and other related/incidental matters are aligned with the constitutional provision to ensure jurisprudential harmony, and avoid perceived jurisdictional conflicts such as the one in this suit.
In the final result, the lone issue is hereby resolved against the Defendant/Applicant, and the Notice of Preliminary Objection is dismissed for want of merit. This court hereby assumes jurisdiction in this matter.
I make no order as to cost.
Ruling is entered accordingly.
Hon. Justice P. I. Hamman
Judge
APPEARANCES:
C. Uriem holding the brief of I. D. Wariboko Esq. for the Claimant/Respondent
N. A. Ekpoh Esq. with L. D. Opara Esq. holding the brief of A. O. Owolabi Esq. for the Defendant/Applicant
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