Petroleum and Natural Gas Senior Staff Association of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON MONDAY 2ND DAY OF JULY 2018

BEFORE HIS LORDSHIP: HON. JUSTICE S. OLUYINKA ADENIYI

SUIT NO: NICN/ABJ/164/2017

BETWEEN:

PETROLEUM AND NATURAL GAS SENIOR STAFF………..APPLICANT ASSOCIATION OF NIGERIA (PENGASSAN)

AND

INDUSTRIAL ARBITRATION PANEL………………………RESPONDENT
SENATOR (DR) CHRIS NWABUEZE NGIGE…………….RESPONDENT
MOBIL PRODUCING NIGERIA UNLIMITED…………….RESPONDENT

R U L I N G / J U D G E M E N T

The Applicant commenced this present action by an Originating Motion filed on 26/05/2017 brought pursuant to Order 48 Rules 1 and 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the Court. It is praying the Court for the following principal reliefs, namely:

An Order for the Industrial Arbitration Panel to show cause why the proceedings before it in Case No: IAP/HB/3896 between Mobil Producing Unlimited Vs Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) should not be reviewed or corrected or set aside.
An Order of Prohibition stopping the Industrial Arbitration Panel from proceeding with or continuing to hear the Case No: IAP/HB/3896 between Mobil Producing Unlimited Vs Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) based on the Instrument dated 12/05/2017, issued by the Honourable Minister of Labour and Productivity.
An Order of Certiorari quashing or removing into this Honourable Court for the purposes of being quashed, the Instrument dated 12/05/2017 and issued by the Honourable Minister of Labour and Productivity purporting to refer the trade dispute between Mobil Producing Unlimited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) to the Industrial Arbitration Panel.

The Applicant went further to state the grounds of the Application as follows:

The Instrument dated 12/05/2017 and issued by the Hon Minister of Labour by which he purported to refer the trade dispute between Mobil Producing Unlimited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) to the Industrial Arbitration Panel does not in fact refer the said trade dispute to the Industrial Arbitration Panel.
It is common ground between Mobil Producing Unlimited and PENGASSAN that the trade dispute between them arose from the decision of Mobil Producing Unlimited to proceed with the implementation of the Redundancy Program and suspension of five (5) employees (members of PENGASSAN) for alleged policy violations.
Proceeding with Case No: IAP/HB/3896 referred to Industrial Arbitration Panel by the said instrument dated 12/5/2017 will not lead to a resolution of the trade dispute.

The Originating Motion is supported by a 37- paragraph Affidavit, deposed to by one Anietie Udoh with Exhibits labelled as Exhibit AU and Exhibits 1-20 respectively. A Further Affidavit of 10 – paragraphs was also filed on 02/06/2017. The Applicant had filed a written address on 26/05/2017 alongside with the Originating Motion. However by an order of the Court granted on 24/01/2018, the Applicant substituted its written address of 26/05/2017 with the one filed on 24/01/2018. Two issues were formulated for determination in the substituted written address, namely:

Did the Honourable Minister for Labour and Employment apply the rules of natural justice of fair hearing before he defined the terms of reference stated in or issued the Instrument dated 12/05/2017, by which he referred the trade dispute to the IAP?
If the answer to Issue 1 is in the negative, whether, it is right for the Industrial Arbitration Panel to enquire into the said trade dispute.

In reaction to the Originating Motion, the 3^rd Respondent on 08/06/2017 filed a Counter – Affidavit of 69 paragraphs with 20 Exhibits wherein seven issues were submitted for determination of the Court. Upon the order of substitution of the written address granted to the Applicant, the 3^rd Respondent filed another written address on 02/02/2018 in response to the issues raised by the Applicant in its substituted written address.

The issues canvassed by the 3^rd Respondent were stated as follows:

Whether the Honourable Minister for Labour and Employment acted as a Court, Tribunal or Administrative Body under Section 36(1) of the 1999 Constitution to determine the Applicant or 3^rd Respondent’s civil rights and obligation so as to be accused of breach of fair hearing.
Whether in view of the fact that there is nothing robbing the Industrial Arbitration Panel of its jurisdiction, this Application ought not to be dismissed with substantial cost and the Industrial Arbitration Panel allowed to fairly and fully determine the dispute between the Applicant and the 3^rd Respondent.
Whether a claim seeking such an order for the 1^st Respondent to justify its jurisdiction and explain its proceedings ought not to be dismissed.
Whether in view of the Applicant’s failure to fulfil the conditions of the grant of an Order of Prohibition and Certiorari against the 1^st and 2^nd Respondents respectively, its claim for those orders, ought not to be refused.
Whether considering the circumstances of this case, this suit does not constitute an abuse of Court process and therefore liable to be struck out by this Honourable Court.
Whether in the circumstances of the case, the 1^st and 2^nd Respondents as presently constituted are juristic persons with the capacity to sue and be sued.

The 1^st and 2^nd Respondents did not file Counter-Affidavits to oppose the application.

From the totality of the application; the facts deposed in support and the legal arguments canvassed by the both learned counsel to support and oppose the same as the case may be, it is common ground between parties that a trade dispute between the Applicant and the 3^rd Respondent was referred to the 1^st Respondent by the 2^nd Respondent by an Instrument (Exhibit AU) dated 12/05/2017. The contention of the Applicant is that the terms of reference made by the 2^nd Respondent in Exhibit AU does not relate to the real issue in controversy because the Applicant’s right to fair hearing was breached by the 2^nd Respondent in stating the terms.

My understanding of the Applicant’s case, as gathered from facts deposed in support of the Originating Motion in brief, is that there was a disagreement between the Applicant and the 3^rd Respondent as to the Separation Program for the members of the Applicant. Several meetings were held to resolve this issue but in spite of the meetings, the 3^rd Respondent embarked on a redundancy program and issued sack letters to staff based on the purported redundancy program. Following this action, the Applicant commenced industrial action which led to the intervention of the Honourable Minister of State for Petroleum who invited both parties for a meeting. Thereafter, the 2^nd Respondent invited both parties by a letter dated 03/05/2017 to a meeting on 09/05/2017. The Applicant alleged that the date for the meeting was not a convenient date because of prior engagements and another date (17/05/2017) was communicated to the 2^nd Respondent.

The Applicant further alleged that the Ministry of Labour responded by a letter dated 09/05/2017 stating that it would hold the meeting on 10/05/2017 but the Applicant could not attend the said meeting which was held on 09/05/2017 contrary to date stated in the letter, that is 10/05/2017.

By an Instrument dated 12/05/2017, the 2^nd Respondent referred the trade dispute between the parties with five (5) terms of reference which according to the Applicant does not in fact refer the dispute between the parties to IAP. It is the contention of the Applicant that its right to fair hearing was violated by the 2^nd Respondent because it was not available at the meeting after which the case was referred with the terms of reference of the Instrument.

The Applicant also alleged that the Chairman of the 1^st Respondent has constituted a tribunal to conduct the enquiry as directed by the Instrument and had made two orders prohibiting parties from engaging in any lock out and strike.

It is on the basis of these facts that the Applicant filed this present action seeking for the reliefs which I had earlier stated.

In proceeding to determine this action, l should say that l have had a good privilege of the written and oral submissions of the respective learned counsel for the contending sides which was argued on 11/04/2018. I shall endeavor to make reference to their submissions as l deem necessary in the course of this ruling.

In arguing the application, learned counsel for the Applicant, R.U Ezeani Esq., submitted that the test for granting an order of Prohibition against a public officer, body or authority is whether the rules of fair hearing was applied by a public officer, body or authority whose action was challenged.

Learned counsel for the Applicant submitted that by Section 36 (1) of the 1999 Constitution, anybody or person charged with the determination of the civil rights and obligations of any person must give fair hearing to that person. He further submitted that the aim of the Trade Dispute Act (TDA) Cap T8 Laws of Federation of Nigeria 2004 is for the settlement of trade disputes and in fulfilling this aim, it is required that every step within the provision of the TDA must afford fair hearing to the parties involved.

Referring to Paragraph 28 of the Affidavit in support of the Originating Motion and Exhibit ON 5a-c attached to the Further Affidavit in support of the Originating Motion, learned counsel for the Applicant argued that the Applicant had written to the 2^nd Respondent for a postponement of the scheduled meeting on 09/05/2017 and suggested another date but that instead of acceding to the Applicant’s request, the 2^nd Respondent still held the meeting. It is the contention of the Applicant’s counsel that the date scheduled for the meeting was muddled up by the 2^nd Respondent.

Learned Counsel for the Applicant argued that the 2^nd Respondent did not afford the Applicant a reasonable opportunity to be heard before the Instrument was issued. It is the submission of learned Applicant’s counsel that since its right to fair hearing was breached, the step taken by the 2^nd Respondent is void; and that the Instrument of referral to the 1^st Respondent dated 12/05/2017 must be removed into this Court for the purpose of being quashed.

Learned Applicant’s counsel further argued that the 1^st Respondent can only act or enquire into a trade dispute which has been referred to it by the 2^nd Respondent and that where there is no valid Instrument of referral of a trade dispute issued by the 2^nd Respondent, the 1^st Respondent cannot act or inquire into the dispute.

In further support of his propositions, learned Applicant’s counsel cited a plethora of judicial authorities all of which I had carefully considered. They are AG Lagos State Vs Eko Hotels (2006) 18 NWLR (Pt. 1011) 378 Pg 423; Ezeagu Vs Nwonu (2016) LPELR 40164; Citec International Estate Ltd & Ors Vs Francis & Ors (2014) LPELR 22314; Ndakauba Vs Kolomo (2005) 4NWLR Pt 975 Pg 411 Pg 430; Salu Vs Egeibon (1994) 6 NWLR Pt 348 Pg 23 @ 44; Olatunbosun Vs NISER (1988) 3NWLR Pt 80 Pg 25; Adigun Vs AG Oyo State (1987) 1 NWLR Pt 53 Pg 678; Federal Civil Service Commission Vs Laoye (1987) 2NWLR Pt 106 Pg 652; Gokpa Vs IGP 1961 1 All NLR Pg 423.

In opposing the Application, learned Counsel for the 3^rd Respondent, Adeola Adeniyi Esq., referring to Section 5 (1) and (2) of the TDA and Section 5 of the Trade Dispute (Essential Services) Act submitted that the referral of the trade dispute by the 2^nd Respondent was done in exercise of his powers to ensure that the trade dispute is resolved. He argued that the decision by the 2^nd Respondent to refer a trade dispute to 1^st Respondent and the terms of reference to be contained in the instrument is totally at his discretion.

Counsel for the 3^rd Respondent further argued that the 2^nd Respondent did not act as a judicial or quasi-judicial body to determine any issue or the dispute between the parties but merely referred the dispute to 1^st Respondent which has the power to resolve the dispute and where the parties would be accorded fair hearing. He submitted that the 1^st Respondent is statutorily clothed with powers to hear and make binding decisions on matters referred to it by the 2^nd Respondent since the 2^nd Respondent cannot exercise such powers. To further support of his arguments, learned counsel for the 3^rd Respondent in turn cited the following authorities, inter alia, namely: Compact Manifold & Energy Services Ltd Vs Panza Services (Nig) Ltd (2017) LPELR 41913; Pam Vs Mohammed (2008) 16 NWLR Pt 112 Pg 1 at 49; Chami Vs UBA (2010) 6 NWLR Pt 1191 Pg 474 and Adebayo Vs Attorney General Ogun State (2008) 7 NWLR Pt 1085 Pg 201 at 205

The learned counsel for the 3rd Respondent also submitted that this Court can only exercise its power in granting an order of Certiorari and Prohibition under Order 48 of its Rules where such Applicant shows reasonable cause for the grant of the order. In further support of his propositions, learned counsel cited the cases of Head of F.M.G, P.S.G of Mid-West State & Anor Vs In Re Kubeinje (1974) All NLR 784 and Oloruntoba-Oju Vs Abdul-Raheem (2009) 13 NWLR Pt 1157 Pg 83. He further argued that the TDA does not factor in the existence or the applicability of an Instrument in the manner canvassed by the Applicant as there is no decision or award that is being challenged.

Learned counsel for the 3^rd Defendant also argued that the Applicant’s action constitutes an abuse of court process and that the 1^st and 2^nd Respondents are not juristic persons with capacity to sue and be sued. He finally urged the Court to dismiss the action with substantial costs.

The learned counsel for the Applicant filed Reply on Points of Law to 3^rd Respondent’s amended written address on 20/02/2018. I shall make reference to this as I consider needful in the course of this Ruling.

In consideration of the arguments canvassed by learned counsel on both sides, I am of the view that the two focal issues for determination in this suit, to which the volume of issues submitted by the both learned counsel for the contending parties would appear to have been subsumed, are:

Whether the Applicant has made out a case of breach of its right of fair hearing against the 2^nd Respondent by its issuance of the Instrument dated 12/05/2017
Whether the Applicant is entitled to any of the reliefs being sought.

I shall proceed to determine the issues together.

The reliefs sought by the Applicant are mainly against the 1^st and 2^nd Respondents. I had earlier noted that they both did not oppose the application by filing Counter-Affidavit, the implication of which is that they are not challenging the facts deposed to by the Applicant in support of the Application. Nevertheless, I am still duty bound to examine the facts to see if they satisfy the conditions the Applicant need to meet to be successful in an application of this nature.

I agree with the learned counsel for the Applicant’s submission that one of the tests for granting the Orders of Prohibition and Certiorari against a public officer, body or authority is whether the rules of fair hearing was applied by a public officer, body or authority whose action was challenged. It is trite that the doctrine of fair hearing in its Statutory and Constitutional sense is derived from the principle of Natural Justice under its twin pillars namely, audi alteram partem and nemo judex in causa sua. The principle of fair hearing is fundamental to the administration of justice and it is enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to conduct a hearing which is fair to both parties to the suit and without bias or partiality in favour of or against either of them who will thereby be prejudiced.

The question of breach or otherwise of fair hearing when contested as in the instant case, is regarded or treated as very fundamental. However, as rightly submitted by the learned counsel for the 3^rd Respondent, the question of fair hearing is not an abstract term available to a party at all times; it is just not an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties every opportunity to put their case to the court before the court gives its judgment. See Ilumuanya Vs State 2012 LPELR 7944; Okoreaffa Vs Agwu 2008 LPELR 4724; Compact Manifold & Energy Services Ltd V Panza Services Nig Ltd (Supra)

In resolving the issue of whether the Applicant’s right of fair hearing was violated by the 2^nd Respondent by the issuance of the Instrument dated 12/05/2017, the provision of Section 36(1) of the1999 Constitution shall be examined critically.

It is therefore important at this point to re- produce the said provision in which the common law concept of the rules of natural justice or fair hearing is enshrined. Section 36 (1) of 1999 Constitution provides:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

In the case of N.A.B. Kotoye Vs Central Bank of Nigeria (1989)1 NWLR (Pt. 98) 419, it was held that the denial of fair hearing can be successfully invoked only where the determination of the civil rights and obligations of the person complaining of its violation are in issue. In other words, the fatality of the denial of the right to fair hearing depends upon the nature of the right at stake in the administrative body or the tribunal before which the right to fair hearing is claimed. It was further held in that case that Section 36 (1) of the Constitution cannot be infringed where no such determination of the civil rights and obligations of the complaint are in issue.

Following the principle of this decision, it seems to me that where the body, whether judicial, quasi-judicial, administrative or executive, acts judicially in the sense that, it is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, then he must be given a hearing before the issue can be properly decided. That indeed, is the essence of fair hearing as a constitutional right and that is the intendment of Section 36(1) of the Constitution of 1999 (as amended). In such cases, the hearing body must be seen to have observed all the implications and attributes of fair hearing. See Dr. Sofekun Vs Akinyemi & Ors (1980) 5-7 S.C. 1; (1981) 2 NCLR 135; Denloye Vs Medical & Dental Practioners Disciplinary Committee (1968) 1 All NLR 306; Garba Vs The University of Maiduguri (1986) 1NWLR (Pt 18) 550.

Where on the other hand, the powers of the body, whether judicial, quasi-judicial, administrative or executive is merely investigatory or exploratory and it does not determine the rights or obligations of the parties affected, it would be wrong to regard such actions as if it were a court wherein parties should be given the right to cross-examine all those who give evidence before such a body.

Now, the questions in issue in the instant case are what is the nature, the purpose of the meeting held by the 2^nd Respondent and what is the expected result of referring the trade dispute to the 1^st Respondent?

The contention of the Applicant as earlier stated is that the 2^nd Respondent held a meeting in its absence and by this action it was not afforded the opportunity to state the issues of the trade dispute between the parties. The Applicant further contended that the terms of reference by the Instrument issued by the 2^nd Respondent referring the trade dispute to the 1^st Respondent does not in fact refer the trade dispute between the parties.

As rightly submitted by learned counsel for both parties, the 2^nd Respondent is empowered to refer a trade dispute to the 1^st Respondent by Section 5 (1) and (2) (b) of the Trade Dispute Act (supra) and Section 5 of the Trade Dispute (Essential Services) Act Cap T9 2004.

Section 5 (1) TDA provides:

Notwithstanding the foregoing provisions of this Act, where a trade dispute is apprehended by the Minister, he may in writing inform the parties or their representatives of his apprehension and of the steps he proposes to take for the purpose of resolving the dispute. (Underlining mine)

Section 5(2)(b) TDA states:

Such steps as the Minister may pursuant to this section take may include –

(b). a reference of the dispute or any matter relating thereto for settlement to the Industrial Arbitration Panel under section 9 of this Act (Underlining mine)

Section 5 Trade Disputes (Essential Services) Act provides:

Where any trade dispute exists or is apprehended and it appears to the Minister that the dispute is one to which persons employed in any essential service are a party or might become a party, the Minister may, whether or not a report in respect of the dispute has been received by him under section 6 of the Trade Dispute Act, refer the dispute for settlement to the Industrial Arbitration Panel established under section 9 of the Trade Dispute Act, and the provisions of that section (as well as any other relevant provision of the Trade Dispute Act) shall apply to any Trade Dispute referred to the Industrial Arbitration Panel under the Trade Dispute Act. (Underlining mine)

Pursuant to the powers conferred on him, the 2^nd Respondent referred the trade dispute to the 1^st Respondent by an Instrument dated 12/05/2017 (Exhibit AU). I agree with the submission of the learned counsel for the 3^rd Respondent that the decision of 2^nd Respondent to refer the trade dispute to the 1^st Respondent and the terms of reference for the referral was made at his discretion. The operative word in both statutes is the word “’may”. Furthermore, the 2^nd Respondent’s action was pursuant with the provision of Section 5 of the Trade Disputes (Essential Services) Act (Supra), which provides that the Minister may, whether or not a report in respect of the dispute has been received by him under Section 6 of the Trade Dispute Act, refer the dispute for settlement to the 1^st Respondent.

In my view the purpose of the meeting held by the 2^nd Respondent was not directed towards the determination of the rights of the parties in dispute but to refer the dispute to a body that would apply the principles of fair hearing. It is therefore erroneous to assume, as learned counsel for the Applicant has done, that the observance of the provisions of Section 36(1) of the Constitution 1999 is a sine qua non to every situation involving a hearing. This is clearly not so.

In Magaji Vs Nigeria Army (2008) 8 NWLR PT 1089 Pg 338, Niki Tobi JSC (as he then was) held:

“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”

I see no reason to depart from the above. The 2^nd Respondent had the discretionary power to draw out the terms of reference of the Instrument which was referred to the 1^st Respondent for the determination of the civil rights or obligations of the parties involved. The duty to observe the principles of fair hearing as enshrined in the Constitution is within the confines of the 1^st Respondent and not with the 2^nd Respondent who had the discretionary powers to state the terms of reference. The facts in the instant case do not support the invocation of the principle of fair hearing by the 2^nd Respondent in his decision to refer the dispute to the 1^st Respondent. The issue as canvassed by the Applicant is not in its favour and it will not be of any assistance to the instant application. And I so hold.

The Applicant is seeking from this Honourable Court for an Order of Certiorari quashing or removing into this Honourable Court for the purposes of being quashed the said Instrument purporting to refer the trade dispute between the parties to the 1^st Respondent and for an Order of Prohibition stopping the 1^st Respondent from proceeding with or continuing to hear the case between the parties based on the Instrument dated 12/05/2017.

The Application is brought pursuant to Order 48 Rules 1 and 5 of the NICN (Civil Procedure) Rules 2017 which provides as follows:

A party desiring to review a decision or proceedings of an Arbitral Tribunal, or of the Registrar of Trade Unions, or of any Commission or Board of Inquiry or Administrative Body or Panel or any Authority or Committee or Board or any other institution vested with the power to deal with any matter arising from a subject matter within the jurisdiction of the Court in this order referred to as the “Arbitral Body” shall commence the review process by Originating process, which originating process must be served by a motion on notice on that body. (Underlining mine)

Judicial review, or judicial control, is founded on a fundamental principle inherent throughout the legal system that powers can be validly exercised only within their true limits. I agree with the submission of the learned counsel for the Applicant that judicial review is a mechanism for keeping public authorities within due bounds and for upholding the rule of law.

In R Vs Electricity Commissioners (1924) 1 K.B. 171, 204-205, Atkin LJ held that the remedies of certiorari and prohibition are available, “where ever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority”.

It is trite that in such applications, the court is concerned with the legality and not the merits of the decision or acts of the public authority and that the remedies are also invocable where there are errors on the face of the records of a judicial tribunal or where it acts without jurisdiction. See Amadi Vs Acho (2005) 12 NWLR (Pt 939) 386; Bamaiyi Vs Bamaiyi (2005) 15 NWLR (Pt 948) 334; Nebedum Vs Labisi (2001) 1NWLR Pt 693 Pg 82.

To put it differently, the remedies being sought by the Applicant in the instant case would be granted where a legal authority having the duty to act judicially, act in excess of their legal authority.

This Court is empowered under the provisions of Section 17 of the National Industrial Court Act and Order 48 of the NICN Rules 2017, to grant the reliefs sought by the Applicant.

The learned counsel for the 3^rd Respondent had contended that the Court cannot grant the reliefs being sought by the Applicant. The argument of the learned counsel for the 3^rd Respondent on this issue is that since the issuance of the Instrument was an administrative function and not a judicial one or quasi-judicial one, an order of certiorari is not available to the Applicant to nullify exercise of such power. The Applicant, in turn argued against this position of the 3^rd Respondent that the orders of Court sought will lie against anybody or person having a legal authority to determine questions affecting the rights of subjects whenever the duty implies that such body or person should act fairly or in accordance with a statutory provision.

With due respects, the position of the law as stated by learned Applicant’s counsel on this issue is a bit self serving and not totally correct.

The correct position of the law is stated by the Court of Appeal in the case of Nigeria Association of General Practice Pharmacist Employers Vs Pharmacists Council of Nigeria 2013 LPELR 21834 were it held that:

“The law is that the prerogative writs of certiorari and prohibition apply only against the acts and decisions of bodies or persons exercising administrative or judicial, and quasi judicial authority affecting the rights of people, which makes it mandatory for them to act fairly, and in respect of acts performed or decisions taken by them in that capacity. They do not lie against executive or legislative acts, or mere administrative acts, because such acts are not performed or expected to be performed in accordance with the rules of fair hearing – Magit Vs University of Agriculture, Makurdi (2005) 19 NWLR (Pt 959) 211, Manuwa Vs National Judicial Council (2013) 2 NWLR (Pt 1337) 1, State Vs Lawal (2013) 7 NWLR (Pt 1354) 565, Judicial Service Commission of Cross River State Vs Young (2013) 11 NWLR (Pt 1364) 1.”

It held further that:

“A judicial or quasi judicial action is a term applied to the action of discretion of public administrative officers or bodies who are required to investigate facts, ascertain the evidence of facts, hold hearings, weigh evidence, draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature.”

The Applicant is praying for an Order of Certiorari quashing or removing into this Honourable Court for the purposes of being quashed, the Instrument, that is Exhibit AU issued by the 1^st Respondent purporting to refer the trade dispute between the parties.

It is settled law that the rules of procedure governing judicial review must be strictly obeyed and adhered to.

By the provision of Order 48 Rule 1 of the NICN Rules 2017, there must be a decision or proceedings of an Arbitral Tribunal to be reviewed. The word “decision” is defined in Order 1 Rule 10 of the NICN Rules 2017 as “any determination of the Court and includes, a judgement, ruling, decree, order, conviction, sentence or recommendation of the Court.

The definition of the word “decision” does not include an instrument.

Reviewing the instant case, there is no decision made by the 1^st Respondent to warrant the grant of the order and the Court cannot also grant the order against actions which are not judicial or quasi- judicial.

In the circumstances of the present case, it is not difficult for the Court to find and hold that the present application is incompetent.

The Applicant is also seeking an order of prohibition stopping the 1^st Respondent from proceeding or continuing to hear the case before it based on the Instrument issued by the 2^nd Respondent purporting to refer the trade dispute between the parties.

Pursuant to the Order of Court, the records of proceedings of the 1^st Respondent was forwarded to this Court. It is revealed from the said records that the proceedings had commenced by which the 1^st Respondent had made two orders against the parties. The 1^st Respondent on 07/06/2017 had adjourned the matter sine die for the resolution of the application before this Court.

I had earlier stated that the 2^nd Respondent did not violate the Applicant’s right of fair hearing in issuing the Instrument. Therefore, there is no basis to stop the 1^st Respondent from proceeding with the hearing of the case before it. Justice in this case is for all the parties. The Court has a duty to guard against an attempt by any of the parties to make an ass of the law and its rules of procedure.

On the basis of the foregoing therefore, reliefs (one), (two) and (three) are hereby accordingly refused and in the same vein, this case is hereby dismissed.

I make no order as to costs.