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National Industrial Court

TELEMA EVANS WILLIAMS & 3 ORS -VS- PATRADE NIGERIA LIMITED

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE IBRAHIM S. GALADIMA

DATED THIS 7TH DAY OF MARCH, 2018.

SUIT NO: NICN/PHC/07/2017

BETWEEN:

 TELEMA EVANS WILLIAMS

FELIX CHIKA OBILOR                                                                    CLAIMANTS

ALPHEUS ABRAHAM SOLOMON

GABRIEL TUBOSEIMIEYE JACKSON    

 

AND

PATRADE NIGERIA LIMITED                                                      DEFENDANT

REPRESENTATION:

  1. IKECHI – JEFF, ESQ. FOR THE CLAIMANTS

UKA NWANNA, ESQ. FOR THE DEFENDANT.

JUDGMENT:

These Claimants filed an Originating Summons on the 17th day of February, 2015 for the purpose of obtaining the following orders:

  1. An order of specific performance against the Defendant of the Federal Government (sic) directives and/or the agreement made between the ASSOCIATION OF OPERATORS OF SEAPORT TERMINALS (the Defendant) – now publicly known by the name of SEAPORT TERMINAL OPERATORS OF NIGERIA (STOAN) (addition mine) and MARITIME WORKERS UNION OF NIGERIA (the Claimants) on minimum standards for the Dock labour industry.
  2. An order of specific performance against the Defendant to carry out its part of the Federal Government (sic) directives and/or the agreement and covenants to the Claimants and/or for the payment of the minimum gross wage of thirty three thousand naira (N33,000) from 01/06/2008 to 31/12/2011 and thirty eight thousand naira (N38,000) only from 01/08/2011 to 31/12/2014 respectively per month and subsequent compliance and payment as (sic ‘at’) entry point on employment and renewable every two years being the subject of the Federal Government (sic) directives and for the agreement mentioned in prayer 1 above.
  3. An order that the Defendant pay to the Claimants each sums due as exhibited in the affidavit in support being the total sum of arrears of salaries due and owed to the Claimants from 01/06/2008 to 31/12/2014.
  4. And for such further order(s) as this honourable Court may deem fit to make in the circumstances of this case.

The application is grounded on the interpretation to be given to two questions, to wit:

  1. Whether the Defendant has not breached its agreement and covenants to the Claimants arising out of the Federal Government (sic) directives/negotiations for and the terms of the agreement dated 20/05/2008 made between the ASSOCIATION OF PRIVATE OPERATORS OF SEAPORT TERMINALS (the Defendant) and the MARITIME WORKERS UNION OF NIGERIA (the Claimants) on minimum standards for the Dock labour industry.
  2. Whether the Defendant is not liable to the Claimants in specific performance and damages arising out of the default on the part of the Defendant of the Federal Government (sic) directives and particularly the covenants and terms of the agreement aforesaid.

An affidavit of 31 paragraphs and several exhibits lettered ‘A’ to ‘L’ as well as a brief of arguments were filed in support and in furtherance of their cause.

The Defendant entered a conditional memorandum of appearance on the 6th of May, 2015 and filed a 20 paragraph counter affidavit to the Originating Summons on the 15th of June, 2015. He however, filed a notice of preliminary objection accompanied by an affidavit of 13 paragraphs and a brief of argument on the same 15th of June, 2015.

On the 29th of October, 2015, the Claimant filed a counter affidavit to the notice of preliminary objection and a brief of argument. He also filed a further and better affidavit of 6 paragraphs accompanied by written arguments.

Again, on the 24th of February, 2016, the Defendant filed yet another process titled “REPLY TO CLAIMANTS’ COUNTER AFFIDAVIT TO DEFENDANT’S AFFIDAVIT IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION” and another written address in support of this affidavit.

Curiously, another affidavit simply titled “DEFENDANT’S AFFIDAVIT OF FACTS” was filed on the 9th of June, 2016 without an application or motion paper preceding it. Since learned counsel for the Defendant, N.U. Nwanna, Esq., who is also the deponent to the process, did not diligently lay foundation for the filing of this affidavit, I shall without ado refuse to place any reliance on it as same is without question of doubt, an abuse of this court’s process. The said affidavit dated 9th June, 2016 is of no legal value and consequence, and same is struck out forthwith.

Both Counsel, by order of this court, moved and adopted their various applications and processes, to wit, the Originating Summons and the Preliminary Objection on the 31st of January, 2018 and the case was adjourned to today for judgment.

PRELIMINARY OBJECTION:

Before determining the main application that is the Originating Summons, this Court shall first consider and determine the fate of the preliminary objection raised by the Defendant/Applicant. The preliminary application of 15th June, 2015 is supported by a 13 paragraph affidavit and a brief of argument. It seeks the following:

  1. An order of this Court striking out this suit for want of jurisdiction to entertain same.
  2. An order of this honourable Court striking out this suit for being incompetent having been commenced through a mode not known in law.
  3. An order of this honourable Court striking out the suit as it has not disclosed any reasonable cause of action.
  4. An order of this honourable Court striking out this suit for abuse of the process of this court
  5. And for further order(s) as this honourable Court may deem fit to make in the circumstance.

The grounds for this application are that:

  1. This suit is predicated upon the purported breach of a collective agreement between the ASSOCIATION OF PRIVATE OPERATORS OF SEAPORT TERMINALS and MARITIME WORKERS UNION OF NIGERIA dated 20/05/2008 on minimum standards for the Dock labour industry. The Claimants/Respondents having commenced this suit contrary to clause 11 of the said agreement (subject matter of this suit), has stripped this honourable Court of the jurisdiction to entertain the suit. The said clause 11 expressly provides that “in the case where there is a breach of this agreement, the aggrieved party shall take the matter to the National Joint Industrial Council (NJIC) for settlement.
  2. The suit was commenced by way of originating summons contrary to the express provisions of Order 3 rule 1 of the National Industrial Court Rules 2007 which expressly provides that “any action for determination by the court shall be commenced by way of complaint which shall be filled (sic filed) and sealed. The complaint shall be in form 1 with such modifications or variations as circumstances may require”.
  3. The collective agreement between the ASSOCIATION OF PRIVATE OPERATORS OF SEAPORT TERMINALS and MARITIME WORKERS UNION OF NIGERIA dated 20/05/2008 (Exhibit ‘B’ attached to the Claimants’ affidavit in support) the breach upon which this suit was commenced is not binding on the parties to the agreement and this cannot be enforced in law. Consequently, no reasonable cause of action can arise from the said agreement at the instance of the Claimants against the Defendant to invoke the jurisdiction of this honourable court.

In arguing this application, the Defendant/Applicant raised four issues for determination thus:

  1. Whether this honourable Court is properly vested with the jurisdiction to determine the Claimants’ suit in the light of the Claimants’ failure to comply with clause 11 of the collective agreement dated 20/05/2008 between the ASSOCIATION OF PRIVATE OPERATORS OF SEAPORT TERMINALS and MARITIME WORKERS UNION OF NIGERIA (the breach of which forms the subject matter of this suit) which provides that where there is a breach of the agreement, the aggrieved party shall take the matter to the NJIC for settlement.
  2. Whether the commencement of this suit by the Claimants by way of originating summons contrary to the express provisions of Order 3 Rule 1 of the National Industrial Court Rules 2007 does not render the suit incompetent and consequently strip this court of its jurisdiction.
  3. Whether the Claimants’ affidavit in support of their originating summons discloses any reasonable cause of action to invoke the jurisdiction of this court in light of the purported breach of Exhibit ‘B’ attached to the Claimants’ affidavit in support which is a collective agreement.
  4. Whether this originating summons ought not to be dismissed for containing an unparalleled abuse of process of this honourable Court.

Interestingly, most of the above arguments are issues similarly adumbrated and re-argued in the substantive Defendant’s counter affidavit against the Claimants’ Affidavit to the Originating Summons.

THE APPLICANT’S SUBMISSIONS:

The arguments proffered by the Defendant/Applicant are as follows:

On issue one, which is whether this court is robbed of jurisdiction to entertain this matter in light of the Claimants’ failure to comply with clause 11 of the collective agreement dated 20/05/08, the defendant emphasizes the need for a court to determine its jurisdiction which is a question that is radical and crucial. That a court can be said to lack jurisdiction in any of the several ways determined in cases like OGBEBO V. INEC (CITATION SUPPLIED) AND D.E.N.R V. TRANS INTL BANK LTD (CITATION SUPPLIED).

Specifically, it is opined that parties are bound by all agreements and contracts freely entered into and the agreements shall determine the rights and obligations of the parties that are privy to it. That since the Claimants allege to be union members of the Maritime Workers Union (which is one of the parties in the collective agreement), then the Claimants should be bound by clause 11 of the said agreement which expressly provide that in the event of any dispute, such shall be referred to the National Joint Industrial Council (NJIC) for arbitration. Accordingly, that since the Claimants have not exhausted the avenue for arbitration by the NJIC, they are in breach of the provisions of clause 11 and this in effect, undermines the jurisdiction of this court to try this suit. The case of AIDC V. NIGERIA LNG LTD (2000) 2 sc 5 at 7 was cited and relied upon.

On issue two, which is whether the Claimants are in breach of the rules of this court specifically order 3 rule 1 of the National Industrial Court Rules 2007, it is argued that under the rule, the only way to file a matter before this court is by way of a complaint. That the rules do not provide for the filing of actions by originating summons. It is submitted that the failure of the Claimants to adhere to the rules of this Court is fatal and this Court should therefore not hesitate to strike out their cause. It is further opined that it is settled law that originating summons can only be used where a claimant has an interest under a Will, an enactment, or other written instrument and so these Claimants should not have utilised the originating summons in bringing this action.

It is further submitted that the Supreme Court has stated severally that where there are substantial and material disputes of facts amongst parties, then such disputes cannot be resolved by originating summons as it is not the appropriate way for initiating hostile proceedings. He relied on the pronouncement in the case of EZEIGWE V. NWAWULU (2010) 2 – 3 SC (part 1) at 57 per ADEKEYE, JSC. That this court should find that there is a material and substantial dispute to be resolved in this case which affidavit evidence is incapable of resolving and it is absolutely necessary for this Court to examine oral evidence of the parties in order to arrive at a safe and just decision. He finalised on this point by impressing that from every angle this matter is examined, there is a need for the parties to file pleadings and evidence to resolve the diverse issues in contention as such this Court should refuse to allow this matter resolved on affidavit evidence alone in view of the manifest conflicts he has established emanating from all the affidavits so far filed.

On the third issue which is whether the Claimants have established a reasonable cause of action, the Applicant’s Counsel submits that the dispute which arises from not complying with the terms of a collective agreement between the Maritime Workers Union and the Association of Private Operators of Seaport Terminals dated 20/05/2008 cannot be litigated upon by these Claimants. This is the law accordingly as was stated as far back as in the case of FORD MOTORS CO. LTD V. AMALGAMATED UNION OF ENGINEERING AND FOUNDRY WORKERS (CITATION SUPPLIED) where it was held that a collective agreement is not legally enforceable whether by the union or individual members of the union unless the contents of the agreement have been incorporated into the individual contracts of service or adopted as a part of the contract or condition of service. That in the affidavit deposed to in support of their originating summons, these Claimants have neither established that there are even contracted staff of the Defendant nor that the contents of the agreement which they dispute, had been incorporated in their individual contracts of service to enable them rely on same. The applicant wants this court to strike out this suit on this basis.

On the fourth and final issue which is whether this originating summons is not an abuse of court process, the Applicant, after defining and describing what amounts to an abuse of court process, went ahead to state that this court must find that the claims made here are an infraction of the provisions of the law and an attempt at harassing, irritating and stressing the Defendant deliberately. It is submitted that this is so because the Claimants know they are not employees of the Defendant and that the Defendant is not a member of the Association of Private Owners of Seaport Terminals. There is reasonable belief that the Claimants have committed an unpardonable abuse of the processes of this Court and that this court must so find.

He finally urged this court to dismiss this suit in its entirety.

RESPONDENTS’ SUBMISSIONS:

The Claimants/Respondents in response filed a 6 paragraph counter affidavit on the 29th of October 2015. Accompanying same are exhibits marked AB 1 – AB 4 and a written address filed on the same date. The Claimants via their counsel, G. Ikechi – Jeff, adopted the four issues raised by the Defendant/Applicant and addressed this Court as follows:

On the first issue, which is whether this Court has jurisdiction to entertain this suit where the Claimants have failed to comply with clause 11 of the agreement of 20/05/2008, it is submitted that an arrangement to submit a dispute to arbitration does not oust the jurisdiction of a court. That either party still retains the right to institute any proceedings in a court of law regardless of the terms of an agreement to submit disputes to arbitration. The option to apply for a matter to be submitted to arbitration is only open to a defendant who has not taken any further steps in the action filed in court. It is opined that the power of a court to grant a stay of proceedings so that a matter can be taken for arbitration is exercisable under Section 5 of the Arbitration and Conciliation Act. Moreover, that where a claimant shows that there are sufficient reasons to refuse to allow arbitration as in this case, then the court must deny such an application accordingly. It is submitted that the union leaders in this case have been compromised and as such resorting to arbitration will occasion injustice to the Claimants. The Respondents’ Counsel argues on that the Defendant/Applicant in this case, had filed a counter affidavit to the originating summons and as such, he must be seen as waiving his right to arbitration. He urged this court to so find.

On the second issue whether this matter should not have been brought by way of an originating summons, learned counsel argues that the law is trite that where a claim is for the interpretation of a contractual agreement or any legal document or Will, the appropriate procedure is to come by way of an originating summons. That the subject of this suit is for this Court’s interpretation of an agreement dated 20/05/08 made by the parties and arising out of a Federal Government directive on minimum gross wages for every dockworker in Nigeria. It is argued further that the provision of Order 3 Rule 5 (A) of the rules of this Court (2007), clearly makes provision for a party who seeks such reliefs as these Claimants, to come by way of originating summons. He said that the application in this regard is misguiding and urges me to discountenance same.

On the third issue which is whether a cause of action has been disclosed by the Claimants, he said that though the agreement which the Claimants seek an enforcement of is a collective agreement, there are exceptions as to the unenforceability of such agreements. That for instance where the parties execute that the agreement shall be binding on the parties, then the court must give effect to such intention. That this is possible in situations where there is an inclusion of a clause in the agreement that the agreement shall have a binding force. He referred this Court to clause 13 on page 4 of the agreement and went on to state the position  of the Supreme Court in the case of NWOBOSI V. ACB (1995) 6 NWLR (PT. 658) where a number of factors were enumerated when the court shall give force to a collective agreement. He said that these Claimants’ wages are based on hourly rates of N187.50/hour (double that rate on weekends and one half on public holidays per hour). That this was so stated in the agreement and thus an indication that the parties intend to be bound by the terms of the said agreement. He further states that though no letters of employment were issued by the Defendant to the Claimants with regards to their terms and conditions of service other than the agreement, the Defendant had held out itself to the world by media publications in the Guardian, Vanguard and Daily Times newspapers that it intends to be bound by the agreement. That despite these publications, the Defendant still failed in the payments of N33,000.00 and N38,000.00 per month per individual employee to date. He cited and referred to the case of ADEGBOYEGA V. BARCLAYS BANK OF NIGERIA LTD (1977) 3 CCHCJ 497, 502 to suggest that this Court must find that the Defendant’s conduct in the case before me, indicates its commitment to be bound by the agreement of 20/5/08.

On issue four, he stated that the Claimants have not committed any abuse of this court’s processes and so the Applicant’s submission in this regard is unsubstantiated and same must be discountenanced. Finally, he asked this court to refuse the application and enter judgment in favour of the Claimants.

APPLICANT’S RESPONSE:

In an obvious attempt at a reaction, the Defendant/Applicant filed an 8 paragraph affidavit of reply on 24th February, 2016 with exhibits numbered PAT 1 – 4. In the written address accompanying the said reply, the learned Counsel serialised his arguments on the four issues thus:

On issue one, that the position of the law in Nigeria is different from the one in England in respect of Arbitration.  He said the Defendant’s step in filing a counter affidavit to the originating summons cannot be construed as taking further steps in this action as same was done to save valuable time and resources.

He added that the Claimants’ assertion that some of the union leaders have been compromised is a fact that needs to be proven since it borders on an allegation of crime.

He maintains that the failure of the Claimants to resort to arbitration in their aid, a condition precedent to filing this action, is fatal as this court lacks jurisdiction. He urges this court to so find.

On the second issue, he emphasized that this court being a specialised court, is bound by its rules mandatorily and since Order 3 of the NIC RULES 2007 does not specify that an action like this can be brought by way of an originating summons, then the court is bound to find that the Claimants’ action can only be instituted by way of a complaint in line with Order 3. That Order 3 rule 5 (A) cited by the Claimant/Respondent does not exist and he urges this Court to so hold.

On issue three, the learned Mr. Nwanna argued that the Defendant is not bound by the collective agreement of 20/05/08 for the following reasons.

  1. The Defendant is not a party to the agreement as such not privy to same;
  2. The publication in the newspapers does not in any way make reference to the Defendant;
  3. The Claimants are not employees of the Defendant and that the payments made to them as tally clerks and security men was based on the minimum wage schedule fixed by the Nigeria Ports Authority. That the NPA reviews periodically the wages of these workers and there has never been a time that their wages were determined by any collective agreement;
  4. That the terms of the agreement relied upon by the Claimants were never incorporated into any contracts or conditions of service of the individual claimants and as such they cannot rely on the said agreement.

On the fourth and final issue it was submitted that there is every reason to regard this action as an abuse of court’s process in the light of all that was previously established and argued before me. Counsel finally maintained that the case must be dismissed accordingly.

COURT’S DECISION

I have gone through the entire processes, authorities and arguments proffered for and against the preliminary objection and I shall make my findings on the questions raised shortly.

A summary of the facts of this case is that the Claimants are tally clerks and on board security men purportedly in the Defendant’s employment. By virtue of a Collective Agreement entered into by the MARITIME WORKERS UNION OF NIGERIA (MWUN) and the ASSOCIATION OF PRIVATE OPERATORS OF SEAPORT TERMINALS (APOST) dated the 20th of May 2008, the gross minimum wages for all dockworkers in Nigeria was negotiated upon by virtue of a Federal Government directive in that regard, and (the wages) were substantially agreed to be increased to the sum of N33,000.00 per month at entry point of the workers. That the agreement is subject to renewal every two years from the date the agreement was first executed. It is alleged that the Claimants are union members of MWUN while the Defendant, a bona fide member of the Association of Private Operators of Seaport Terminals. The Claimants thus seek this Court’s intervention in interpreting the agreement of 20th May, 2008 (hereinafter referred to the agreement or Collective Agreement) as well as secure declarative reliefs to enforce the terms of the agreement against the Defendant who has accordingly failed to recognise the contract terms. Against this backdrop the Defendant Company has filed this objection evaluated above.

In making the appropriate findings, I have compressed the 4 issues raised by the Defendant/Applicant into three as follows:

  1. Whether this Court lacks jurisdiction to entertain this suit in view of the arbitration clause contained in clause 11 of the Collective Agreement of 20/5/08 between the workers’ union and employers’ association mentioned above.
  2. Whether the procedure of filing this action by way of originating summons is unknown to the NIC rules 2007 and fatal to the success of the Claimants’ action and same is an abuse of court process.
  3. Whether the parties are legally bound by the Collective Agreement of 20/5/08 or put differently, whether they have a reasonable cause of action.

On the first issue for determination, the Applicant in his PO had stated that the Collective Agreement relied upon for the success of the Claimants’ suit, stipulates in clause 11 that in the event of any breach of the agreement, such dispute shall be submitted to the National Joint Industrial Council for arbitration. That the failure of the Claimants to abide by this stipulation, robs this court of the jurisdiction to entertain this suit.  The Respondents however do not subscribe to this opinion maintaining in the alternative that the Claimants’ rights to file an action in court is not diminished by the existence of the arbitration clause and that besides the Defendant had taken further steps by filing a counter affidavit to their originating summons and therefore denied any right to having this suit submitted to arbitration. Furthermore, that the Claimants would be prejudiced if the matter were referred to arbitration in view of the fact that certain union leaders are compromised.

Generally, an arbitration clause serves only as a procedural provision whereby the parties agree that disputes should be arbitrated. This does not exclude or limit rights or remedies of parties but simply provides a procedure which the parties may settle their grievances. See the case of ONYEKWULUJE AND ANOR V. BENUE STATE AND ORS per GALADIMA, JSC (2015) LPELR – 24780 (SC).

The key ingredients for the sustainability of such an application therefore are:

  1. That there is a binding agreement between the parties;
  2. That there is a provision for the submission of any dispute to arbitration;
  3. That the applicant had not taken any step other than his appearance in the matter at the point of his applying for the case to be referred to arbitration;
  4. That the applicant is willing and ready to do all things necessary to the proper conduct of the arbitration.

See this Court’s decision in KCA DEUTAG NIGERIA LIMITED V. JEWELLS LINKS CONSULTS SERVICES LIMITED (SUIT NO: NICN/YEN/201/2016 (RULING DELIVERED ON 6th DECEMBER 2017)).

What then constitutes taking “steps in the proceedings”?

In OBEMBE VS WEMABOD ESTATES LTD (1977) Vol. 11 NSCC 264 the Supreme Court held that:-

In order to get a stay, a party to a submission must have taken no step in the proceedings. A party who makes any application whatsoever to the court, even though it be merely an application for extension of time, takes a step in the proceedings. Delivery of a statement of defence is also a step in the proceedings.

In another related case CONFIDENCE INSURANCE LTD VS TRUSTEES OF O.S.C.E. SUPRA AT PAGE 387 ACHIKE JCA (AS HE THEN WAS) had this to say:-

It is perfectly clear to me that mere entering an appearance by the appellant be it conditional or unconditional appearance is not detrimental to the party’s right to rely on the arbitration clause inserted in the parties’ agreement. On the contrary, it is in fact what happens after a party has entered an appearance that matters in determining whether or not such a party can still take advantage of the aforesaid arbitration clause.

See also Halsbury’s Laws of England Volume 2 (1991) 4th Edition paragraph 627. The Learned authors gave examples of what constitutes “steps in the proceedings” as follows:-

Steps in the proceedings have been held to include: the filing of an affidavit in opposition to summons for summary Judgment, service of a defence, and an application to the court for leave to serve interrogatories, or for a stay pending the giving of security or costs, or for an extension of time for serving a defence or for an order for discovery or for an order for further and better particulars. Relied on per MSHELIA, J.C.A. in ONWARD ENTERPRISES LIMITED v. MV “MATRIX” & ORS (2008) LPELR-4789(CA) (Pp. 19-20, paras. D-E).

Having been satiated by the above authorities, I can safely conclude that the objection in respect of the first issue for determination is unfound. The fact that the Defendant/Applicant filed a Counter Affidavit to the originating summons alone has completely extinguished his right to rely on clause 11 of the Collective Agreement for these proceedings to be stayed and referred to the NJIC for arbitration. I therefore agree with the Claimants/Respondents and refuse to grant the Applicant’s prayer on this first issue.

On the second issue for determination which is whether the Claimants wrongly filed this action by originating summons instead of a Complaint in accordance with Order 3 rule 1 of the NIC Rules 2007, the Applicant’s counsel had stated that that order which reads that “any action for determination by the Court shall be commenced by way of Complaint which shall be filed and sealed” is a mandatory provision and that failure of the Claimants to comply with same is fatal since it constitutes an unparalleled abuse of court process. He further argued in response to the Claimants’/Respondents’ reply that the Order 3 Rule 5 (A) of the NIC Rules 2007 relied upon by them, is not a provision known under the NIC Rules and that it was immaterial that the complaint is for the interpretation of any document or contract. The applicant is adamant that the rules of this court have been desecrated and therefore these Claimants cannot be said to be properly before this Court.

In brisk response to this argument, the NIC Rules of 2007 (which have now been replaced by the NIC Rules of 2017), was amended by a Practice Direction in 2012 with a commencement date from 1st of July, 2012. The President NIC had included an Order 3 Rule 5 (A) 1 which stipulated thus: “Any person claiming to be interested under an enactment, constitution, agreement, or any other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested”. Sub rule 2 made provision for the accompanying processes to be filed along with the originating summons.

The originating summons in this matter was filed on the 17th of February 2015 and as such, was governed undeniably, by the 2007 Rules of this Court. It is quite obvious that the applicant counsel is unaware of the fact that the rules were amended by the Practice Note in 2012. It goes without saying that the appropriate way to bring an action for the interpretation of an agreement or any other instrument is by way of an originating summons. I also do not find any abuse of this Court’s processes as alleged by the Applicant Counsel. Therefore, the objection on this issue is unwarranted and accordingly denied.

On the third issue which is whether these parties are bound by the Collective Agreement of 20/05/08, the position of the law is succinct in this regard. Collective Agreements are generally of a nature that the parties to it cannot rely upon. There are considered “gentleman’s agreements” with no binding force. For instance ONNOGHEN, J.C.A (as he was then) in TEXACO (NIG.) PLC V. KEHINDE (2001) 6 NWLR (PT.708)224 said:

Collective agreements are not intended or capable to give individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with collective labour agreement is not justiciable…

In U.B.N. LTD V. EDET (1993) 4 NWLR (PT. 287) 288 AT 298 – 300 UWAIFO J.C.A. (as he then was) had cause to pronounce on the nature of collective agreements when he said at paragraphs B-C page 298 that:

 

Such collective agreements are not intended or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. See also the case of
RECTOR, KWARA STATE POLY V. ADEFILA (2007) 15 NWLR (PT.1056) PG.42

In other words, failure to act in strict compliance with collective labour agreements is not justiciable. Its power of enforcement lies in some measures as I shall endeavour to show. For instance, where the parties have established convincingly that they intend to be bound by the Collective Agreement, the Court shall have no choice than to enforce the wordings of the contract. This can be done where there is an express inclusion or incorporation of the terms of the agreement in a written contract of service or employment and in situations where the Court will be justified to presume by the conduct of the employer, that he intends to be bound by the Collective Agreement, like where the employees are already being paid entitlements that were arrived at as a result of the agreement.

In ANAJA V. UBA PLC (2011) 15 NWLR (PART 1270) 377, the Court of Appeal stated that “a Collective Agreement on its own does not give an individual employee the right of action in respect of any breach of its terms unless it is accepted to form part of the terms of employment. This is because, the agreement is not between the employer and his employee and as such, a non party cannot (legally) enforce a contract even if it was made for his benefit. Thus, a Collective Agreement is at best a gentleman’s agreement, an extra legal document totally devoid of sanctions”.

The Applicant had argued correctly that in order for the Claimants in this case to benefit from the agreement of 20/05/08, they must show that their contract of service contains the provisions of the said agreement which is to their benefit. The Claimants’ submitted that though no letters of employment were issued by the Defendant to them with regards to their terms and conditions of service, the Defendant had held out itself to the world by media publications in the Guardian, Vanguard and Daily Times newspapers that it intends to be bound by the agreement. That despite these publications, the Defendant still failed in the payments of N33,000.00 and N38,000.00 per month per individual employee to date.

Indeed, neither the Claimants nor the Defendant were privy to the agreement of 20/05/08. What the Claimants seem to suggest is that they are union members of the employees’ Union in the agreement whereas the Defendant is a member of the employers’ Association that signed the contract. In an effort to prove this, the Claimants had tendered membership declaration forms nos. MWUN/BD/00573/PH and MWUN/DB/00997/PH as exhibits to suggest that they are union members who duly pay union dues to the Maritime Workers’ Union of Nigeria (MWUN). The Defendant/Applicant however denies that it is a member of the Association of Private Operators of Seaport Terminals (the employers’ association) and also that the Claimants are not its employees.

Interestingly, the Claimants stated that they were not issued with individual contracts of service by the Defendant and that all entreaties by them to ensure they were so given fell on deaf ears. In fact, in paragraph 4 of the Claimants’ counter affidavit opposing the notice of preliminary objection filed on the 29th of October, 2015, they said jointly:

  1. That we are employees of the Defendant and our letters of employment were withheld by the Defendant for this singular fraudulent purpose as we were only issued with the Defendant’s Company identity cards and contrary to paragraph 4 of the Defendant’s affidavit in support. Photocopies of the Defendant’s staff (i.e. the Claimants’) I.D cards with I.D. nos: 00038, 000267, 00042 and 00070 respectively are hereby attached as Exhibit AB 1 – AB 4.

I am a bit suspicious about how in one breath the Claimants stated that they were not given letters of service by the Defendant and in another breath that their individual letters of service were withheld fraudulently by the Defendant. Albeit, it is important for this Court to determine the nature of the relationship existing between these two parties in order to arrive at a decision one way or the other.

From the processes filed before this court, it was suggested that the Defendant took over concessions belonging to Mecca Nigeria Limited and Walter Stephen International Limited to operate as a private seaport operator sometime in 2005. In view of this, the Joint Maritime Labour Industrial Council (JOMALIC) had written a letter dated 28th December, 2005 introducing the Defendant company to the Nigeria Ports Authority Port Harcourt to recognise the appointment of the Defendant by the Minister of Transport and for the Defendant “to serve as employers of tally clerks and on board security men for Port Harcourt Terminals A & B” (see Exhibit A attached to the Claimants’ supporting affidavit of 17/2/2015). The Claimants by themselves also admitted that they were issued forms by the Nigeria Maritime Administrative Safety Agency (NIMASA) to fill and they were thereafter screened by NIMASA (see paragraph 7 of their affidavit in support of the originating summons filed on 17/2/2015). In subsequent paragraphs of the same supporting affidavit, they had even further stated that NIMASA had issued the 4th Defendant with a Certificate of pre-retirement.

It seems that though the Defendant had secured the Claimants’ services as tally clerks and on board security men, the terms of their employment were not specified by any letter of employment or contract of service such that it would have easily been produced to this Court for inspection. With this in mind, I therefore do not believe the Claimants when they said they were denied any letter of employment by the Defendant because if it had been customary for them to have written letters of employment or contract of service, bodies or authorities like JOMALIC, NPA or NIMASA, would have directed the Defendant to do so. There seems to exist substantially, a Master/Servant relationship between these parties and this is more obvious in the absence of the individual letters of employment or contract of service.

With this in mind, it is necessary to state out rightly that there is no way this court can determine whether the agreement of 20/5/08 was incorporated into the nonexistent contracts of service of the individual Claimants in this suit. The fact of the matter also is that the Claimants as at the time of filing this suit in 2015, did not satisfactorily establish whether the Defendant had impliedly accepted to be bound by the terms of the Collective Agreement. If anything, they even seem to suggest that the Defendant completely refused to abide by the terms of the said agreement. It is definitely not sufficient to simply state that publication in national dailies is cogent enough reason to deem that the agreement is binding on the parties especially the Defendant. Besides, the Defendant Company was not even the publisher of the information contained in those newspaper publications. It cannot be said that they are privy to such publications.

I therefore considered the arguments and submissions raised by the Applicant in this respect and I have safely come to a conclusion that the agreement of 20/05/2008 were never incorporated into any contract of service nor were any of the terms executed by the Defendant. I am accordingly and overwhelmingly convinced that the third issue for determination is in favour of the Applicant. The Collective Agreement cannot be said to bind the Defendant since same was never incorporated expressly or impliedly, and I so find.

THE ORIGINATING SUMMONS:

Having arrived at the immediate foregone conclusion, it is reasonable to pronounce at this juncture, that the Claimants’ cause cannot succeed. This is more so because the originating summons on its own, depended on the bindingness of the agreement of 20/5/2008.

From an analysis of the agreement itself, it is curious to note that under Clause 8, the life span of the purported collective agreement is but two years from the date of its signing. This is expressly written thus:

  1. That the life span of this agreement shall be two (2) years from the date of its signing.

It is obvious that the originating summons was already dead on arrival (DOA) at the time it was even filed in 2015. These Claimants cannot take any advantage of dead scrolls.

Arbitrarily speaking also, the claim itself is statute barred considering the provision of Section 16 of the Rivers State Limitation Law which specifies that actions on any contract obligations have to be filed within five years from the date the cause of action arose. Significantly, this action was filed in 2015 seeking to enforce the contractual terms of an agreement purportedly executed in 2008. Nothing has been suggested on behalf of the Claimants for the indolence in filing the matter within five years after the contract was signed. Equity does not aid the indolent. It took the Claimants 7 years to have their matter filed before this court. It is unfortunate that so much time and resources were wasted in an attempt to construe an already dead instrument. I am constrained to state that the originating summons basically filed seven years after the death of this instrument, was in fact, an abuse of this Court’s process.

By way of admonishment, I believe the learned counsel for the Claimants was less than candid in advising that this matter be instituted in the first place. After all, he owes his clients, the opposing side and this Court, the duty to be diligent and professional in presenting this cause. I do not lay blame on the Claimants who were under the direction of their Counsel.

On a note of finality, I shall not grant any of the orders sought in the originating summons based on the above reasoning. I find there is every need to dismiss the originating summons in its entirety forthwith.

Case dismissed.

Parties are to bear their respective costs.

 

JUDGMENT DELIVERED THIS 7TH DAY OF MARCH, 2018.

 

 

HON. JUSTICE I. S. GALADIMA,

PRESIDING JUDGE.

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