National Union of Hotels and Personal Services Workers -VS- National Union of Air Transport Employees

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: JULY 4, 2019

SUIT NO. NICN/ABJ/207/2018

BETWEEN

National Union of Hotels and Personal Services Workers – Claimant

AND

1. National Union of Air Transport Employees

2. Newrest ASL Nigeria Plc – Defendants

REPRESENTATION

James Ode Abah, for the claimant.

Egang Agabi, for the 1st defendant.

Bimbo Atilola, for the 2nd defendant.

JUDGMENT

INTRODUCTION

1. The claimant took up an originating summons against the defendants praying for the determination of the following questions:

(1) Whether by virtue of the provisions of the Third Schedule PART B of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004, the 1st defendant can lawfully organize and unionise the members of the claimant who are staff in the 2nd defendant company that engages in the business of catering services, hotels and restaurant proprietors.

(2) Whether by virtue of the provisions of the Third Schedule PART B No. 12 of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004, workers and employees of the 2nd defendant fall within the jurisdictional scope of the claimant and not the 1st defendant.

(3) Whether by virtue of the provisions of the Third Schedule Part B No. 6 of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004, workers and employees of the 2nd defendant fall within the jurisdictional scope of the 1st defendant and not the claimant.

(4) Whether by virtue of the provisions of the Third Schedule PART B No. 6 of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004, the 1st defendant can lawfully undertake any form of industrial action in the premises of the 2nd defendant.

2. The claimant then prayed for the following reliefs:

(1) A declaration that workers and employees in the 2nd defendant (Newrest ASL Nigeria Plc) fall within the jurisdictional scope of the claimant (National Union of Hotels and Personal Services Workers) as stipulated in the Third Schedule Part B No. 12 of the Trade Unions Act Cap T14 Laws of Federation of Nigeria (LFN) 2004 and not the 1st defendant.

(2) A declaration that workers and employees in the 2nd defendant (Newrest ASL Nigeria Plc) do not fall within the jurisdictional scope of the 1st defendant (National Union of Air Transport Employees) as stipulated in the Third Schedule Part B No. 6 of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004.

(3) A declaration that the 2nd defendant should continue to recognize the claimant as the union for her employees and not the 1st defendant.

(4) A declaration that the acts of the 1st defendant in forcefully breaking into the premises of the 2nd defendant and carrying out industrial action is unlawful and outside the scope of the 1st defendant by virtue of Third Schedule Part B No.12 of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004 and Third Schedule Part B No.6. of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004.

(5) An order of perpetual injunction restraining the 1st defendant through its officers, agents or privies from carrying out any industrial action against the 2nd defendant or attempting to take over the functions of the claimant as it relates to the 2nd defendant.

3. In reaction, the 1st defendant filed a preliminary objection supported by an affidavit and a written address urging that the suit of the claimant be dismissed or the name of the 1st defendant be struck out on the following grounds:

(a) The Court lacks the jurisdiction to entertain the suit of the claimant.

(b) The suit as presently constituted against the 1st defendant is frivolous, vexatious and abuse of court process.

(d) And any such further order(s) that this Honourable Court may deem fit to make in the circumstances.

4. The Court had suo motu urged parties to address it on the question whether the dispute in this suit is not a trade dispute for which the processes of Part I of the Trade Disputes Act (TDA) 2004 should be exhausted before the jurisdiction of this Court in its appellate jurisdiction can be activated. In other words, whether the claimant is right to have activated the original jurisdiction of this Court in filing this case as it did.

THE SUBMISSIONS OF THE 1ST DEFENDANT ON ITS PRELIMINARY OBJECTION

5. To the 1st defendant, a careful perusal of the questions raised by the claimant in its originating summons and the accompanying reliefs sought will reveal that the same set of questions were raised for determination and accompanying reliefs were also the same in the matter earlier determined by this Court in Suit No. NICN/LA/63/2018 i.e. Newrest ASL Nigeria Plc v. National Union of Air Transport Employees decided by Hon. Justice Mustapha Tijani of this Court. That dissatisfied with the judgment of this Court sitting in Lagos, the claimant filed an appeal which is still pending at the Court of Appeal in Appeal No. CA/L/946M/2018. Unfortunately, that the same claim that is subject of appeal has resurfaced in this Court again for determination, hence the preliminary objection.

6. The 1st defendant submitted a sole issue for determination i.e. whether this suit is not an abuse of court process. Referring to Suit No. NICN/LA/63/2018 i.e. Newrest ASL Nigeria Plc v. National Union of Air Transport Employees attached as Exhibit H5 and the appeal against it, the 1st defendant submitted that this suit is an abuse of court process; and the whole intent is to improperly use the judicial process to subdue, weaken, harass, annoy, irritate and impoverish the 1st defendant, especially that the claimant and the 2nd defendant have the privilege of knowing the poor financial state of the 1st defendant. That what the 2nd defendant herein and the claimant have engaged in here amounts to abuse of court process which the law frowns at, citing R-Benkay Nig. Ltd v. Cadbury Nig. Ltd [2012] LPELR-7(SC); [2012] 3 SC (Pt. III) 169, Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156 and Abu v. J. O. Olumbamise Printers Ltd [2013] LPELR-20415(CA). That R-Benkay Nig. Ltd v. Cadbury Nig. Ltd laid down the circumstances that will give rise to abuse of court process; and these include:

(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same matter between the parties even where there exists a right to begin the action.

(b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.

(c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and a respondent’s notice.

(d) ……………………..

(e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness.

(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.

(g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellant’s application has the effect of overreaching the respondent’s application.

(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of court process.

7. The 1st defendant the submitted that the act of the claimant and the 2nd defendant instituting multiplicity of suits against the 1st defendant both at the Court of Appeal and the instant case where the claimant is seeking for reliefs that have been determined by this Court already sitting in Lagos amounts to an abuse of court process; especially that the judgment of this Court sitting in Abuja is being appealed against by the 2nd defendant. The 1st defendant, therefore, urged the Court to either dismiss this suit with punitive cost or strike out the name of the 1st defendant.

THE SUBMISSIONS OF THE 2ND DEFENDANT IN OPPOSITION TO THE PRELIMINARY OBJECTION

8. The 2nd defendant rephrased the 1st defendant’s sole issue as its issue for determination i.e. whether the claimant’s suit as presently constituted is an abuse of Court’s process. In arguing this sole issue, the 2nd defendant indicated that the 1st defendant has alleged in his affidavit in support of the preliminary objection that the present suit as instituted by the claimant is an abuse of court’s process because the 2nd defendant “had instituted a similar suit in form and character as the instant suit sometime in the year 2018 at the Lagos Judicial Division of this court” as stated in paragraph 4 of the affidavit in support of the preliminary objection, and as such the claimant has instituted a multiplicity of suits against the 1st defendant. Citing Abu v. J. O. Owmbamise Printers Ltd [2013] LPELR-20415(CA) and NDIC v. UBN Plc anor [2015] LPELR-24316 (CA), the 2nd defendant submitted that the claimant, the National Union of Hotels and Personal Services Workers, would only be said to have abused the court’s process if the claimant has instituted multiplicity of suits in respect of the same subject matter as this present suit, claiming the same reliefs as claimed in this instant suit on the same issues as in this present suit. That from the exhibit attached to the 2nd defendant’s counter-affidavit in opposition to the 1st defendant’s preliminary objection, the originating summons in Suit No. NICN/LA/63/2018 clearly shows that the 2nd defendant herein, Newrest ASL Nigeria Plc, was the claimant in that suit. That the originating summons also shows that National Union of Air Transport Employees (NUATE) was the sole defendant in that suit. That the claimant in this instant suit was not even a party in that suit and as such the 1st defendant’s assertions are misconceived and misplaced. Thus, having not instituted any such suit anywhere, the claimant cannot be said to be guilty of multiplicity of suit and as such this suit filed by her cannot be an abuse of court process. The 2nd defendant also submitted that the instant suit is timely, urging the Court to effectively and effectually determine the issues in dispute in the overall interest of the business of the 2nd defendant who is currently at the mercy of the claimant and the 1st defendant.

9. To the 2nd defendant, the issues raised in Suit No. NICN/LA/63/2018 are as follows:

(1) Whether by virtue of the provisions of the Third Schedule, PART B of the Trade Unions Act Cap T14, LFN, 2004, the defendant can lawfully organize and/or unionise the members of staff of the claimant company.

(2) If the answer to question 1 above is in the negative, whether the defendant can lawfully picket, forcefully enter or break into the premises of the claimant, and/or undertake any form of industrial action in the premises of the claimant.

(3) And if the answer to question 2 above is in the negative, whether the defendant can lawfully and under any guise, forcefully break into the premises of the claimant, disrupt its operations, chase its staff away and lock up the premises of the claimant.

(4) Without prejudice to the Questions 1, 2, and 3 above, whether having regards to the relevant provisions of the Trade Disputes Act Cap T8, L.FN 2004, the defendant can lawfully picket or otherwise disrupt, and stop the operations of the claimant without submitting its alleged grievance or dispute to the jurisdiction of the Industrial Arbitration Panel.

10. That the issues raised in the present suit are on the face of the originating summons and are neither similarly worded nor similar in subject matter. That the claimant’s case in this instant suit is for this Court to determine the jurisdictional scope of the claimant and the 1st defendant and whether the claimant can lawfully organize and unionise members of the 2nd defendant’s organization since the 2nd defendant’s business allegedly falls under the subject matter of the claimant’s union. To the 2nd defendant, the issue of multiplicity of suit does not arise whether as regards to parties, subject matter or issues for determination. That the courts have always held that these similarities between parties, subject matter and issues must co-exist before an allegation of multiplicity of suits would stand, citing Ajali & anor v. Okuri-Eze & ors [2013] LPELR-22592(CA) and Chief Victor Umeh & anor v. Prof. Maurice Iwu & ors [2008] L.PEL.R-3363 (SC).

11. That without prejudice to the arguments canvassed, it is also important to reiterate that the said Suit No. NICN/LA/63/2018 decided no issue between the parties as the court declined jurisdiction on account of want of locus standi on the part of the claimant. That it is, however, instructive that the Court in the said suit held albeit obiter dicta that the 1st defendant herein has no right to organize the staff of the 2nd defendant. The 2nd defendant then urged the Court to hold that this suit does not constitute an abuse of the court’s process as there has been no multiplicity of suits instituted. In conclusion, the 2nd defendant accordingly urged the Court to dismiss the preliminary objection.

THE SUBMISSIONS OF THE CLAIMANT IN OPPOSITION TO THE PRELIMINARY OBJECTION

12. The claimant also submitted one issue for determination to wit: whether the 1st defendant is entitled to the reliefs being sought. The claimant answered this in the negative. To the claimant, the application of the 1st defendant has failed to establish how the originating summons filed by the claimant is an abuse of court process. That the law is settled that multiplicity of actions on the same matter may constitute an abuse of process of the court, but this so only where the action is between the same parties with respect to the same subject matter, citing Unity Bank Plc v. Olatunji [2013] 15 NWLR (Pt. 1378) 503 at 534. That multiplicity of action arises where a second action is commenced on the same subject matter against the same opponent on the same issue, citing Sheriff v. PDP [2017] 14 NWLR (Pt. 1585) 212 at 288-289. Referring to the counter-affidavit of the claimant as well as the exhibits annexed by the 1st defendant in the preliminary objection, the claimant submitted that the claimant herein was not a party in Suit No. NICN/LA/63/2018 as same was instituted by the 2nd defendant herein against the 1st defendant in the suit herein when the 1st defendant forcefully broke into premises of the 2nd defendant disrupting its business operations and chasing out its staff and locking up the 2nd defendants premises. That the claimant herein has not instituted several matters in different courts against the 1st defendant herein. Also, the claimant not being a party in Suit No. NICN/LA/63/2018 has no business appealing same since the claimant herein was not a party in the said suit. That the appeal in question is between the 2nd defendant as appellant and the 1st defendant as respondent and the claimant herein is not a party to same, citing Aminu Bala v. Gur [2017] 17 NWLR (Pt. 1593) 168 at 179-180.

13. It is also the claimant’s contention that the claimant herein has a duty to institute the suit herein as the 1st defendant has made several attempts in pouching members of the claimant in an attempt to take over the functions of claimant despite the fact that the jurisdictional scope of a union is a question of law as provided in the Trade Unions Act. Also, that contrary to the contention of the 1st defendant, the claimant not being a party in Suit No. NICN/LA/63/2018 has no business appealing against same. Furthermore, that the law is settled that where a party to a suit is by law given the option or discretion to exercise his right by different ways, his opponent cannot prescribe the particular method by which the party must exercise his right and the opponent cannot complain that there was an abuse of court process if the party exercises his right in any of the permitted ways, citing R-Benkay (Nig) Ltd v. Cadbury (Nig) Plc [2012] 9 NWLR (Pt. 1306) 596 at 624 and Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156. In conclusion, the claimant urged the Court to dismiss the preliminary objection.

THE CLAIMANT’S SUBMISSIONS IN RESPECT OF THE ISSUE RAISED BY THE COURT SUO MOTU

14. To the claimant, the issue raised suo motu by the Court is whether the dispute herein is a trade dispute and whether parties are required to utilize the mechanisms for resolutions of trade dispute provided by the Trade Disputes Act (TDA) or submit to the jurisdiction of the Industrial Arbitration Panel (IAP). It is the claimant’s contention that the dispute herein falls within the exclusive jurisdiction of this Court. To the claimant, the dispute herein is not trade dispute and parties are not required to utilize the mechanisms for resolution of trade disputes provided by the TDA or submit to the jurisdiction of the IAP. That everything about the suit herein is hinged on whether by virtue the provisions of the Third Schedule Part B of the Trade Unions Act (TUA) Cap T14 LFN 2004, the 1st defendant can lawfully organize and unionise the members of the claimant who are staff in the 2nd defendant company that engages in the business of catering services, hotels and restaurant proprietors. That all the questions submitted for determination are of the jurisdictional scope of the claimant and the 1st defendant in this case.

15. The claimant submitted that the law is now settled that the issue of jurisdictional scope of a trade union is of law which can only be determined by a competent court and, therefore, there is no need for the this dispute to be submitted to the jurisdiction of the Industrial Arbitration Panel lAP. In other words the law as of today in line with recent authorities is that the lAP has no jurisdiction over the determination of jurisdictional scope of a trade union, referring to the Judgment of this Court delivered by His Lordship Hon. Justice Mustapha Tijani on the 22nd of June 2018 in Suit No. NICN/LA/63/2018 Newrest ASL Nigeria Plc v. NUATE (unreported), the ruling of this Court delivered by Hon. Justice E. A Oji, PhD on 10th July 2018 in Suit No. NICN/LA/375/2017 Senior Staff Association of Electricity and Allied Companies v. NUEE and RTEAN & ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA). It is thus the claimant’s submission that this Court has the exclusive jurisdiction to hear and determine civil causes and matters relating to trade unions by virtue of section 254C(1) of the 1999 Constitution and section 7(1)(a) and (c)(iv) of the National Industrial Court (NIC) Act 2006. That this Court ought to assume jurisdiction in determining this suit as the refusal to do so questions the very foundation for which courts of law were established by the Constitution, referring to section 6(6)(b) of the 1999 Constitution.

16. The claimant went on that in this suit, the Court is being called upon to determine the jurisdictional scope of the claimant and 1st defendant which are trade unions. That the issue of jurisdictional scope of trade unions is a question of law. Consistent with this, is the provision of the NIC Act 2006, which provides in section 7 that the Court shall have and exercise exclusive jurisdiction in civil causes and matters relating to labour, including trade unions and industrial relations. That this provision of the NIC Act presupposes that issues of trade unions and their constituent instruments may be called to question. Furthermore, that from the clear provisions of section 254C(1) of the 1999 Constitution, this Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters relating to trade unions and industrial relations including matters arising out of TUA.

17. To the claimant, this Court has the jurisdiction to hear and determine reliefs which are declaratory, injunction and are prerogative in nature by virtue of sections 16, 17, 18 and 19 of the NIC Act 2006. That the reliefs sought by the claimant herein are declaratory orders and injunctive reliefs which only can be granted by a court of law. That the law is trite that declaratory or injunctive reliefs can only be made by a court of law, citing Eng. Ugwu v. Eke [2009] 15 LRLR (Pt. 4.) 409 at 422.

18. On the other issue of the claimant herein having to exhaust the conditions precedent to bringing a suit before this Court as provided for in the TDA, the claimant submitted that that position is not applicable to the suit herein. That section 2 of the TDA Cap T8 LFN provides that subject to the provisions of subsection (3) of section 21 of the Act , no person shall commence an action, the subject matter of a trade dispute or any inter or intra union dispute in a court of law and accordingly, any action which prior to the commencement of this section is pending in any court shall abate and be null and void. It is the claimant’s contention that section 21 of the TDA has been repealed by the NIC Act. However, a reference to the NIC Act shows that it did not include inter-union disputes as a trade dispute. That section 54 of the NIC Act defines a trade dispute as:

Trade dispute means any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with –

(a) The employment or non-employment of any person

(b) Terms of employment and physical conditions of work of any person

(d) an alleged dispute

19. That a holistic reading of Part I of the TDA does not suggest an inclusion of intra and inter-union disputes within the purpose of that Part of that law. That an inter-union dispute is a dispute arising from the organization and running of trade unions as laid down in the union’s constitution. It is different from a trade dispute defined above. The claimant reiterated that section 7(1)(a) of the NIC Act gives this Court jurisdictions over trade unions; and that the suit herein is not a trade dispute within the interpretation of the TDA as to require subjecting the matter to the processes of Part I of the TDA. That this matter is squarely within the realm of section 254C(1)(a), (b), (c) and (d)(v) and (vi) of the 1999 Constitution and section 7(a)(1) and (c) of the NIC Act 2006; as such the claimant herein can access this Court, referring to the ruling of this Court delivered by Hon. Justice E. A Oji, PhD on 10th July 2018 in Suit No. NICN/LA/375/2017 Senior Staff Association of Electricity and Allied Companies v. NUEE (unreported), NICN/LA/153/2011 Comrade Okandeji Fidelis v. Comrade Igwe Achuzie & anor delivered on 18TH April 2012 (unreported) and NICN/LA/26/2012 George Uzouaro & anor v. Dangote Cement Plc & ors delivered on 25th May 2012 (unreported).

20. Furthermore, that the Court of Appeal affirmed this position in RTEAN & ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA) where the Court of Appeal held that:

Applying this principle of interpretation to the provisions of PART 1 of the Trade Disputes Act it is clear that they apply only to what is referred to as a “trade dispute” and not any other type of dispute. This Court notes that Section 2 of the Trade Disputes Act states that no person shall commence an action, the subject matter of a trade dispute or any other inter or intra union dispute in a Court of law and it proceeded to abate all pending actions in all Court prior to the commencement of Section and it made contravention of the provision a punishable offence. The Section was added by the Trade Disputes (Amendment) Act of 1992. Reading this provision along with other provisions in Part I of the Trade Disputes Act, it is completely incongruous and out of place. Section 1 of Trade Disputes Act is very clear that the provisions in Part I relate only to trade disputes and made no mention of inter or intra union disputes and this provision was not amended even when Section 2 was added to the Act. It is settled principle of construction of Statutes that where a Section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included – Udoh v Orthopedic Hospitals Management Board (1993) 7 SCNJ 244. Also the definition of “trade dispute” in Section 48 was also not expanded to include inter or intra union disputes. The law is settled that once a Statute defines a word, phrase or term, the Court cannot go outside the Statute to seek a meaning of that word, phrase or term not contained in the definition in the statute – Uhunmwangho vs Okojie (1989) 5 NWLR Pt 122) 471. Kalu Vs Odili (1992) 6 SCNJ 76 and Shettima Vs Goni (2011) 18 NWLIQ (PT 1279)413. Thus any dispute in Section 48 of the Trade Disputes Act is not amenable to and or covered by the provisions of Part I of the Trade Disputes Act.

It is obvious that Section 2 of the Trade Disputes Act 2004 was inserted to remove the jurisdiction hitherto possessed by the High Court and the Federal High Court over trade disputes and inter and intra union matters, it was not for the purpose of making inter and intra union disputes amenable to settlement procedure in Part I of the Trade Disputes Act – Udoh v Orthopedic Hospitals Management Board (supra), National Union of Road Transport Workers v Ogbodo (1998) 2 NWLR(pt 537) 189, Ekong vs Oside (2005) 9 NWLR(PT929) and Umoren vs Akpan (2011)22 NLLR (PT 62) 264. The sting has been taken out of the Section by the provisions of Sections 53(2) and 53(3) of the National Industrial Court Act 2006 which subjected the provisions of the Trade Disputes Act to the overriding provisions of the National Industrial Court Act and some of which are Section 7 which vests exclusive jurisdiction over some matters in the National Industrial Court and Sections 16 to 19 which grant only the National Industrial Court Powers to make certain orders.

21. To the claimant, in this case, the Court of Appeal concluded that in the spirit of harmonious interpretation of sections of a statute, an inter or intra-union dispute would only be covered by the provisions of Part I of the TDA if the nature of the dispute therein comes within the nature of the dispute said to constitute trade dispute under section 48 of the Act. That once the complaint of a claimant is not a trade dispute, it cannot be caught by section 7(3) of the NIC Act 2006, citing First Marine Engineering Services Ltd v. National Union of Petroleum & Natural Gas Workers [2011] 23 NLLR (Pt. 65) 283. That the position is that in such instances sending such matters to go through the conciliation and arbitration process is a complete waste of time and that it is a matter that the NIC should take in its original jurisdiction, citing Ugwu v. Ogboso [2010] 21 NLLR (Pt. 58) 164 and Aghwefeada v. Asemota [2011] 22 NLLR (Pt. 63) 413. The claimant continued that going by the meaning of a trade dispute as defined above, the present dispute between the parties in this suit is not between the parties envisaged by the TDA and certainly not in relation to the envisaged subject matter to constitute a trade dispute and thus this suit is not a trade dispute, referring to the questions it raised ad the reliefs it seeks in the originating summons. That it is clear that the questions submitted before this Court by the claimant is for this Court to determine the jurisdictional scope of the claimant and the 1st defendant which is within the jurisdiction of this Court.

THE SUBMISSIONS OF THE 1ST DEFENDANT IN REPLY TO THE CLAIMANT’S SUBMISSIONS IN RESPECT OF THE ISSUE RAISED SUO MOTU BY THE COURT

22. To the 1st defendant, where a trade dispute exists, under the Trade Disputes Act (TDA), the provision of the TDA apply. That Part I of the TDA recommends the procedure for settling trade disputes. Section 1 of the TDA deals with the preliminaries while section 2 of the TDA expressly excludes courts from original jurisdiction to hear matters which subject matter borders on trade dispute or any inter or intra union disputes in a court of law. That the same TDA made provisions and procedure for the resolution of these disputes. That it is upon the exhaustion of the procedure for dispute resolution as prescribed in the TDA that the aggrieved party may approach the NIC. In any event, that the claimant told this Court that the questions posed before this Court for resolution do not fall within the jurisdiction of the TDA.

23. The 1st defendant proceeded to refer to some of the claimant’s submissions in terms of paragraph 1.06 of its argument, which states that everything about its “suit is hinged on whether by virtue of the provisions of the Third Schedule PART B of the Trade Unions Act, Cap T4 Laws of the Federation of Nigeria (LFN), 2004, the 1st Defendant can lawfully organize and unionise the members of the Claimant who are staff in the 2nd Defendant company that engages in the business of catering services, hotels and restaurant proprietors”; paragraph 12 of the affidavit in support of the originating summons, which states thus: “That the 1st Defendant had declared a trade dispute against the Claimant and the 2nd Defendant alleging that both the Claimant and the 2nd Defendant are against it in organizing the staff of the 2nd Defendant”; paragraph 13 of same affidavit in support of the originating summons, which states “that the jurisdictional dispute was referred to the Federal Ministry of Labour for resolution in 2017. The claimant was also invited by the Federal Ministry of Labor and Employment together with the 1st Defendant and Defendant. The invitation letters of the Federal Ministry of Labour and Productivity are hereby annexed and marked as Exhibit H2”; and paragraph 14 of the same affidavit, which states “that the Federal Ministry of Labour and Employment stated that the Claimant should be allowed to unionise the 2nd Defendant in its letter dated the 22nd of May, 2017. The letter is hereby annexed and marked as Exhibit H3”.

24. To the 1st defendant, having submitted to the jurisdiction of the trade dispute resolution processes, the claimant can also follow that procedure and further proceed to the end. However, that in the judgment of this Court exhibited by the claimant as Exhibit H5 attached to the affidavit is support of the originating summons, there was extensive arguments between the claimant and the defendant therein, who are now 2nd and 1st defendants respectively in this suit, regarding the jurisdiction of the Industrial Arbitration Panel (IAP) and the award. That these arguments are contained, beginning from the last paragraph of page 9 and stretches up to the whole of page 10 of the judgment delivered by this Court sitting in Lagos. That the process of the IAP could not have favored them because they had not met the condition precedent for the assumption of the jurisdiction of the IAP. They had not deposited the collective agreement with the Minister as provided for in the TDA among other deficiencies. That the IAP did not even conclusively determine this matter presented before it. That the Minister was ab initio in error to have assumed jurisdiction to entertain the dispute. That this position was heavily challenged by the 1st defendant herein as the defendant before the Court in Lagos as can be seen in Exhibit H5, particularly at pages 9 and 10.

25. The 1st defendant proceeded that the claimant and the 2nd defendant are blowing hot and cold, a position the Court will not allow, referring to Ngige v. Obi [2006] 14 NWLR (Pt. 999) 1 at 60, Momah v. UAB Petroleum [2000] 2 SC 142 at 143 and Abeke v. Odunsi [2013] 1 JMLR 1 at 19-20. That the claimant had submitted to the jurisdiction of the IAP before approaching this Court at the Lagos Division. That while running the matter to full conclusion, dissatisfied with the outcome, they have approached this same Court again, now the Abuja Division on the same course of action and subject matter. This amounts to forum shopping and an abuse of court process. That the claimant cannot claim not to know that the 2nd defendant had approached this Court sitting in Lagos with the same reliefs it is seeking this Court to make pronouncement on, especially that it has even exhibited Exhibit H5, that is the judgment of this Court sitting in Lagos. It is, therefore, clear that they intentionally set out to abuse the process of this Court. That there must be an end to litigation, citing Udeoroh v. Nwakonobi [2003] 4 NWLR (Pt. 811) 643, NIMB Ltd v. UBN Ltd [2004] 12 NWLR (Pt. 888) 599 SC and R. Benkay Ltd v. Cadbury (Nig.) Plc [2006] 6 NWLR (Pt. 976) 338. That this suit, from all indications, intends to abuse the process of court as it is vexatious. There is also a likelihood that if not satisfied with the decision of this Court it may come again in ‘sheep clothing’ approaching another Division of this Court, maybe Port Harcourt, seeking the same reliefs. That there has to an end to litigation.

26. To the 1st defendant, the claimant’s further contention and insistence in the sole issue suo motu raised by this Court and further call for address by parties, is that the determination of the jurisdictional scope of the claimant and the 1st defendant herein is its main relief before the Court. That this Court had settled this issue in NUPENG v. MWUN Suit No. NICN/ABJ/71/2014 delivered on 2015-04-15 in the following words:

Even the fundamental rights guaranteed in Chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) and (b) provides for derogation from these rights. We, therefore, hold that jurisdictional scope as contained in the Third Schedule Parts A, B, and C to the Trade Unions Act is still applicable to all Trade Unions. The right to choose which union to belong is a qualified right.

In like manner, the workers of GAC Manning Services (Nig.) Ltd on board FSPO Sendje Berge as described in the various Exhibits frontloaded by the claimant are workers in the maritime industry and so if eligible can only be unionise by MWUN, and I so find and hold.

27. That this case is apt here. In similar vein, that the 2nd defendant’s workers are workers in the aviation industry and can only be unionised by the 1st defendant. That the aviation industry is a highly specialized industry where the presence of the claimant, strangers in the industry, in the name of unionising the workers will change the dynamics and expose the very sensitive and security conscious industry at grave risk. That all the issues raised for determination by the applicant herein have already been determined by this Court in Suit No. NICN/LA/63/2018 Newrest ASL Nigeria Plc v. NUATE delivered on 22nd June 2018, to which an appeal against the judgment has been filed at the Court of Appeal, Lagos Division. That the said judgment was exhibited by the applicant herein as Exhibit H5 in the affidavit in support of the originating summons. That all the cases relied on in support of this application do not support the case of the applicant, urging the court to discountenance same. That the applicant here is another face of the 2nd defendant attempting to achieve what it was unable to achieve in this same Court sitting in Lagos, masquerading itself as the applicant now in this suit now. That having appealed against the decision of this Court, the only option open to the applicant if it feels differently from the 2nd defendant is to apply to be joined at the Court of Appeal. It is at the Court of Appeal that they can now raise the issues they intend to raise and properly and validly ventilate their grievances. That this Court cannot sit on appeal over its own judgment delivered in Lagos, in whatever guise. Therefore, this suit is incompetent, vexatious, academic and an abuse of court process, urging the Court to so hold and dismiss this suit with punitive cost.

THE SUBMISSIONS OF THE 2ND DEFENDANT IN RESPECT OF THE ISSUE OF LAW RAISED SUO MOTU BY THE COURT

28. It is the 2nd defendant’s contention that this suit falls within the original jurisdiction of this Court. To the 2nd defendant, its only interest in this matter is the protection of its business and economic interests from unlawful interference by the 1st defendant who has been adjudged by a competent authority (Federal Ministry of Labour) and by this Court albeit obiter dictum in Suit No. NICN/LA/63/2018 as having no business whatsoever in the premises of the 2nd defendant. That in aiding the Court to determine this issue of law, the 2nd defendant contends that this Court has the exclusive and original jurisdiction to entertain this suit, and parties are not obliged to explore the jurisdiction of the IAP in this matter. That this is because the nature of the reliefs sought by the claimant is such that can only be granted by the NIC pursuant to its powers under section 19 of the NIC Act. That the IAP is an inferior tribunal created under the TDA and it is a matter of common knowledge that the lAP has no power to grant declaratory and injunctive reliefs. That it is indeed for this peculiar reason that the original jurisdiction of the NIC is often invoked to seek urgent interim reliefs in deserving cases. That it is indeed the long established policy of this Court to exercise its original jurisdiction over trade disputes where the peculiar nature of the matter deserves such intervention. That this exclusive original jurisdiction of the Court pursuant to section 19 of NIC Act was explained by this court in Comrade Chukwunweike & ors v. Comrade Olaitan & ors [2012] 26 NLLR (Pt. 75) 438 and Ugwu v. Bob Soso Eke & 8 ors [2009] 15 NLLR (Pt. 42) 409. That just like in these cases, the relief sought by the claimant herein in its originating summons relates to declaratory and injunctive reliefs which only this Court has the power to grant, citing Oloruntoba-Oju & ors v. Dopanmu & ors [2008] 7 NWLR (Pt. 1085) 1, where the Supreme Court held that to determine the question of jurisdiction, the Court should confine itself to the statement of claims and the reliefs sought.

29. Furthermore, that since the regime of the Third Alteration to the 1999 Constitution, the NIC has become a one stop court for virtually all the matters connected with labour, employment, trade unions and industrial relations in Nigeria, referring to Coca-cola v. Akinsanya [2013] 18 NWLR (Pt. 1386) 255 and section 254C(1) of the 1999 Constitution especially paragraphs (a), (b), and (c). Indeed, that if there is anyone that should go to the lAP, it is the 1st defendant itself who is aggrieved by the decision of the Federal Ministry of Labour as contained in Exhibit H3 of the claimant’s affidavit in support of its originating summons.

30. The 2nd defendant then asked whether the subject matter of this suit is a trade dispute; and answered that this Court has the requisite original exclusive jurisdiction to entertain this suit as the dispute between the claimant and defendants even though being an inter-union dispute, does not qualify as a trade dispute within the meaning and contemplation of section 48 of the TDA and as such, only this Court can entertain such a dispute, not the lAP, referring to Newrest ASL Nigeria Ltd v. NUATE Suit No: NICN/LA/63/2018, the judgment of which was delivered on 22nd June 2018, which relied on Road Transport Employers Association of Nigeria ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA). That here, the Court of Appeal rightly held that inter and intra union disputes do not qualify as a trade dispute within the meaning and contemplation of the express provisions of the TDA, urging the Court to follow this decision; and hold that it has the requisite original jurisdiction to entertain this suit.

31. That in the unlikely event that this Court declines original jurisdiction in this matter, the unsavoury adverse effect of such ruling on the business of the 2nd defendant is better imagined than experienced. That the implication is that the 2nd defendant company would become the proverbial grass who suffers when two elephants fight. That as it stands, the 2nd defendant is now being dragged both ways by the rival unions, the claimant and the 1st defendant herein and with attendant adverse implications for the 2nd defendant’s business. That this is an important public policy consideration, which the Court should consider in arriving at its decision on this preliminary question of jurisdiction. The 2nd defendant concluded by urging the Court to hold that it has the requisite jurisdiction to entertain this matter.

THE SUBMISSIONS OF THE CLAIMANT IN SUPPORT OF THE ORIGINATING SUMMONS

32. For the originating summons, the claimant submitted a sole issue for determination: whether the claimant is entitled to the reliefs being sought. The claimant started off with reiterating its stance as to this Court having jurisdiction over this case in terms of the position it argued in response to the 1st defendant’s preliminary objection and the issue raised suo motu by the Court, relying once again on Road Transport Employers Association of Nigeria ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA). It is thus idle to repeat all the claimant’s arguments on jurisdiction here.

33. On whether the claimant is entitled to the reliefs being sought in the originating summons, the claimant referred to the jurisdictional scope and area of jurisdiction of the claimant as provided in the Third Schedule Part B item No. 12 of the Trade Unions Act (TUA) Cap T14 LFN 2004, which provides thus:

Workers in the services involving the care of the person or his apparel. Hotels, restaurants, cafes, taverns and other drinking and eating places. Laundries and laundries services, cleaning and dying. Barber and beauty shops, domestic services, portrait and commercial photographic studios, shops, offices and cleaning. Security Services, recreational and tourist organisations in the private and related services.

It is the claimant’s submission, therefore, that that it has the jurisdictional scope to unionize and organize the staff of the 2nd defendant and has been so doing as the nature of their business falls within the jurisdiction of the claimant. That the business of the 2nd defendant (Newrest ASL Nigeria Plc) is catering services and hospitality with clients across the business sectors in Nigeria and renders services financial institutions, foreign embassies and airlines, referring to the affidavit in support of the originating summons. That it also carries on the business of proprietors of restaurants, hotels, refreshment and tea rooms, cafes and milk snack bars, tavern beer house lodging and house keepers.

34. To the claimant, the yardstick in determining jurisdictional scope of membership of a trade union is the type of work and the industry. That it is glaringly clear from this that by nature of the business and the industry, the staff of the 2nd defendant (Newrest ASL Nigeria Plc) do not fall within the jurisdictional scope of the 1st defendant, urging the Court to so hold in virtue of the Third Schedule Part B item No.12 of the TUA 2004. That the law is inflexibly clear that the provisions of all laws shall be observed and complied with by all authorities and persons in Nigeria, citing Wamini-Emi v. Igali [2008] 11 NWLR (Pt. 1097) 123 at 144. The claimant went on that the 1st defendant is a trade union duly registered under the TUA. That its area of jurisdiction is related to all workers in commercial airlines, airport authority, civil aviation authority and travel agencies except those in professional and administrative cadres as provided in the Third Schedule Part B item No. 6 of the TUA.

35. On whether the claimant is entitled to the order of perpetual injunction being sought in the suit against the 1st defendant, the claimant submitted that the claimant is entitled to the grant of the order of perpetual injunction, which is precisely an order restraining the 1st defendant through its officers, agents or privies from carrying out any industrial action against the 2nd defendant or attempting to take over the functions of the claimant as it relates to the 2nd defendant. That the grant of the said order will promote sane industrial relations practice which this Court has a duty to promote and preserve.

36. That the claimant has shown in the affidavit in support of the originating summons how its legal right of organizing and unionising staff of the 2nd defendant is being infringed on and invaded by the 1st defendant and the continuous threat of such invasion by the 1st defendant. That the law is well settled beyond peradventure that where a person’s legal right has been infringed or invaded and there is a continual invasion or threat of continuance of such invasion and the legal rights of the parties have been determined in a final judgment, the successful party is entitled to a perpetual or permanent injunction, citing Ho v. Abubakar [2011] 12 NWLR (Pt. 1261) 323 at 343, Ibenwelu v. Lawal [1971] 1 All NLR 23 and Enag v. Adu [1981] 11 SC 25. Also, that the law is settled that the grant of the relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by the Court. That the essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and obviate the necessity of bringing multiplicity of suits in respect of repeated infringement. The claimant concluded by urging the Court to grant the reliefs it seeks.

THE SUBMISSIONS OF THE 1ST DEFENDANT IN RESPECT OF THE ORIGINATING SUMMONS

37. The very issues and arguments the 1st defendant raised in terms of its preliminary objection were the very issues and arguments it raised in opposition to the originating summons i.e. that the instant suit is an abuse of court process given the decision of this Court in Newrest ASL Nigeria Plc v. NUATE Suit No. NICN/LA/63/2018, which decision is now on appeal at the Court of Appeal per Appeal No. CA/L/946M/2018. It will be idle to repeat the said arguments here.

THE CLAIMANTS’ REPLY ON POINTS OF LAW TO THE 1ST DEFENDANTS’ SUBMISSIONS

38. The claimant first raised a preliminary point, namely, that the counter-affidavit of the 1st defendant is grossly incompetent being in violation of section 115(2) of the Evidence Act 2011 as they contain extraneous matters by way of prayer, objections, legal argument or conclusion. The claimant then urged the Court to hold that the said counter-affidavit of the 1st defendant is full of arguments and full of conclusions and as such liable to be struck out, citing Bamaiyi v. The State [2001] FWLR (Pt. 46) 956. The claimant then urged the Court “to strike out the said paragraphs of the counter affidavit dated the 17th day of April 2019”.

39. The claimant then submitted that, contrary to the erroneous depositions as contained in the 1st defendant’s counter-affidavit, the law is clear that where a case is fought on pleadings supported by documentary evidence, oral evidence should not be allowed to contradict the clear terms of documents since the task before the court is to interpret or construct the terms of the documents, citing AG, Federation v. AG, Abia State [2002] 6 NWLR (Pt. 764) 542, Lion Buildings Ltd v. Shadipe [1976] 12 SC 135, Kimdey v. Military Governor of Gongola State [1988] 2 NWLR (Pt. 77) 445 and Ebba v. Ogodo [1984] I SCNLR 372. That documentary evidence, being permanent in form, is more reliable than oral evidence, and it is used as a hanger to test creditability of oral evidence, citing Anyanyu v. Uzowuaka [2009] 13 NWLR (Pt. 1159) 445 at 468 and CDC (Nig) Ltd v. SCOA (Nig) Ltd [2007] 6 NWLR (Pt. 1030) 300 at 366.

40. The claimant went on that the 1st defendant had erroneously stated in paragraph 21 of its counter-affidavit that because the operation of the 1st defendant is very sensitive, it is more important that the claimant does not operate there at all. To the claimant, the law is settled that the yardstick in determining jurisdictional scope of membership of trade union is the type of work and the industry, citing the unreported case of Suit No. ABJ/71/2014 NUPENG v. MWUN delivered on 15th April 2015.

41. Also, that the 1st defendant erroneously submitted that the claimant intentionally set out to abuse the process of court and appealed the Court’s decision at the Court of Appeal in Lagos. To the claimant, it was not a party in Suit No. NICN/LA/63/2018 as same was instituted by the 2nd defendant herein against the 1st defendant herein when the 1st defendant forcefully broke into premises of the 2nd defendant disrupting its business operations and chasing out its staff and locking up the 2nd defendant’s premises. That the claimant herein has not instituted several matters in different courts against the 1st defendant herein. Also, that the claimant not being a party in Suit No. NICN/LA/63/2018 has no business appealing same since the claimant herein was not a party in the said suit. That the appeal in question is between the 2nd defendant as Appellant and the 1st defendant as respondent and the claimant herein is not a party to same. The claimant then proceeded to reiterate its argument as to multiplicity of suits, which it made in response to the 1st defendant’s preliminary objection. Once again, it is needless repeating the arguments.

COURT’S DECISION

42. I have carefully considered the processes filed and the submissions of the parties. There are two issues to resolve: the issue as to jurisdiction in terms of the 1st defendant’s preliminary objection and the issue raised suo motu on the one hand; and the merit of the case. In dealing with the issue of jurisdiction, I will start with the issue raised suo motu by the Court i.e. whether the dispute in this suit is not a trade dispute for which the processes of Part I of the Trade Disputes Act (TDA) 2004 should first be exhausted before the jurisdiction of this Court in its appellate jurisdiction can be activated. In other words, whether the claimant is right to have activated the original jurisdiction of this Court in filing this case as it did. Only the 1st defendant argued that the dispute in this case is a trade dispute. The claimant and the 2nd defendant argued otherwise, relying heavily on Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA), a case that held that inter and intra union dispute is not a trade dispute for purposes of the dispute resolution processes of Part I of the TDA; and that once the complaint of a plaintiff is not a trade dispute, it cannot be caught by section 7(3) of the National Industrial Court (NIC) Act 2006. Even here, the claimant argued as if what the Court raised as an issue was that the matter should go to the Industrial Arbitration Panel (IAP). For this, I only need to state that case law holds that an agreement to submit to arbitration does not oust the jurisdiction of the court. It only postpones resort to litigation before the court. See City Eng. (Nig.) Ltd. v. FHA [1997] LPELR-868(SC); [1997] 9 NWLR (Pt. 520) 224; [1997] All NLR 1; Messrs NV Scheep v. MV’s Araz [2000] 12 SC (Pt. 10) 154 at 213 and Mekwunye v. Lotus Capital Ltd & ors [2018] LPELR-45546(CA). That section 7(3) of the NIC Act 2006 enjoins conciliation and arbitration does not mean that the NIC has been ousted. Section 7(3) of the NIC Act only postpones coming to the NIC until conciliation and arbitration have been concluded.

43. Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors, however, also held that an inter or intra union dispute would only be covered by the provisions of Part I of the TDA if the nature of the dispute therein comes within the nature of the disputes said to constitute trade dispute under section 48(1) of the TDA. And this is where the problem lies. Section 48(1) of the TDA 2004 defines “trade dispute” as meaning “any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person”. There are three things to note with this definition. The first is the use of the phrase ‘any dispute’. ‘Any’ according to the New Oxford American Dictionary is “used to refer to one or some of a thing or number of things, no matter how much or many” and “whichever of a specified class might be chosen”. So section 48(1) of the TDA did not even restrict the type of dispute. The second is the use of the word “employers” in plural, which denotes more than one employer. I am not unmindful of the rule under the Interpretation Act which holds that the singular includes the plural. But a dispute where employers are involved with workers is often one that is an inter-union dispute as it sure involves their respective unions. The third is that a dispute between workers and workers (once again note that the word ‘workers’ is used in the plural) is a trade dispute; and disputes between workers and workers is always an intra or inter union dispute depending on whether the workers are of the same union or not. To reinforce this, section 54(1) of the National Industrial Court (NIC) Act 2006 has expanded this definition to include disputes between the respective organizations of employers and employees. It needs to be pointed out that organization is the generic name of a trade union or senior staff and employers associations. This is the reason that section 54(1) of the NIC Act 2006 defines “organization” to include a trade union or an employers’ association. This means that a dispute between the respective organizations of employers and employees would mean inter or intra union disputes, as the case may be. So, when Decree 47 of 1992 added inter and intra union disputes in Part I of the TDA, it was for emphasis since the High Courts assumed jurisdiction over such disputes. There was thus the need to specifically grant jurisdiction over such disputes to the NIC.

44. The very definition of a trade union under the TUA provides insight into the point I seek to make. Section 1(1) of the TUA defines a trade union in these words:

“trade union” means any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether its purposes do or do not include the provision of benefits for its members.

From this provision, the primary purpose of trade unions is the regulation of terms and conditions of employment of workers. Subsection (2) of course permits other purposes so long as the said other purposes are lawful, are authorized by the trade union’s rules and are for the benefit of the members of the trade union, subject to the ban for application of funds for political purposes. However, the fact that an agreement has been reached between an employer and persons employed by him as to terms and conditions of that employment is not sufficient reason for a verdict that thereby a trade union has been formed. See section 1(3)(a) of the TUA. This is understandable because registration under the TUA by the Registrar of Trade Unions is a prerequisite for the formation of a trade union. See sections 2(1) and 3(1) of the TUA. Since the primary purpose of a trade union is the regulation of terms and conditions of employment, would a dispute within a trade union (intra-union dispute) and that between trade unions (inter-union dispute) not logically be one over terms and conditions of employment and so a trade dispute within the definition of the term under section 48(1) of the TDA and section 54(1) of the NIC Act 2006? I think so. Even disputes such as strikes over increase in price of fuel by workers, which would meet the International Labour Organization’s (ILO’s) allowance that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions posed by the major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living even when this is not strictly speaking a trade dispute in the real sense of the word. See FGN & anor v. NLC & anor unreported Suit No. NICN/ABJ/179/2016, the judgment of which was delivered on 15th July 2016.

45. This aside, the factual matrix is that in certain categories (as where the dispute within a trade union or between trade unions is over conditions of service where such is being negotiated with an employer), are inter and intra union disputes not even for that fact alone trade disputes given the expanded definition of a trade dispute in section 54(1) of the NIC Act 2006? Today, by sections 53 and 54(4) of the NIC Act 2006, the TDA is to be interpreted in a way that brings it in conformity with the NIC Act, and where there is conflict, the NIC Act predominates. The Court of Appeal in Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors acknowledged this point. The definition of a trade dispute under the NIC Act, like I pointed out earlier, includes a dispute between the respective organizations of employers and employees and Federations which is connected with the employment or non-employment of any person, terms and conditions of employment and physical conditions of work of any person, the conclusion or variation of collective agreement, and an alleged dispute.

46. Now, very often, as is the instant case, especially inter-union trade unions’ dispute is one over unionization and jurisdictional scope, and that within a trade union (intra-union dispute) is one over check off dues. The right to belong to a trade union is constitutional and statutory (section 40 of the 1999 Constitution and section 1(1) of the Trade Unions Act, which defines a trade union as a combination of workers or employers the purpose of which is to regulate terms and conditions of employment), and the right to deduct check-off dues as of other deductions from a worker’s wages is statutory (section 16A of the TUA and section 5(1), (2), (3) and (4) of the Labour Act). These rights are implied in and so are part and parcel of the terms and conditions of employment of all employees/workers. The law did not deem it fit to leave it to the vagaries of employers’ conditions of service. So, if these rights are implied into terms and conditions of service, why would a dispute over them not be a trade dispute within the definition of a trade dispute especially given the definition of the term in section 54(1) of the NIC Act? This being so, I only need to make a finding to that effect and I will be perfectly within the holding of the Court of Appeal in Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors to the effect that “an inter or intra union dispute would only be covered by the provisions of Part I of the TDA if the nature of the dispute therein comes within the nature of the disputes said to constitute trade dispute under section 48 of the TDA”. Even if the view is taken that the present definition of a trade dispute in section 48 of the TDA does not cover inter and intra union disputes (which I doubt and hence hold otherwise in virtue of the use of the phrase “any dispute between employers and workers or between workers and workers”), the point must be made that the definition of “trade dispute” in section 48 of the TDA must defer to that in section 54(1) of the NIC Act in virtue of sections 53 and 54(4) of the NIC Act. For all the reasons given, I find and hold that the instant dispute between especially the claimant and the 1st defendant over who can unionise the workers of the 2nd defendant is a trade dispute. And I arrive at this finding and holding despite that my brother Tijjani J of this Court in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 as per the judgment of 22nd June 2018 arrived at a different conclusion.

47. The next issue is whether given the reliefs the claimant is seeking, reliefs that include declaratory and injunctive reliefs, the instant case can appropriately go through the dispute resolution processes of Part I of the TDA including any hearing at the Industrial Arbitration Panel (IAP). Here again, the claimant and the 2nd defendant argued that only this Court, not the IAP, can grant these reliefs, relying on sections 16, 17, 18 and 19 of the NIC Act 2006 and Eng. Ugwu v. Eke [2009] 15 LRLR (Pt. 4.) 409 at 422. In truth, by sections 9(6) and 13 of the TDA, the IAP, as part of the dispute resolution processes of Part I of the TDA, is empowered to make an award when it sits over a trade dispute that has been referred to it by the Minister of Labour. Under the old dispensation i.e. prior to the NIC Act 2006 and the Third Alteration to the 1999 Constitution, even the NIC was held by the Courts not to have the power to grant declaratory and injunctive reliefs. This posture was taken in cases such as Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria [1987] 1 NWLR (Pt. 49) 284 AG, Oyo State v. NLC [2003] 8 NWLR 1 and Kalango v. Dokubo [2003]15 WRN 32 simply because Part I of the TDA gave the IAP and NIC power to make awards when they sit over trade dispute referrals from the Minister of Labour.

48. The New Oxford American Dictionary defines an award as: “give or order the giving of (something) as an official payment, compensation, or prize to (someone)”. The Cambridge English Dictionary on its part defines the word as: “to give money or a prize following an official decision”. What then is a declaration, for which in making an award neither the IAP nor the then NIC could make or grant? It was His Lordship Oputa, JSC in Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria who actually held that the NIC could not make declarations or order injunctions, a holding that the Court of Appeal subsequently upheld in cases such as AG, Oyo State v. NLC and Kalango v. Dokubo. But His Lordship Oputa, JSC went on to state that a “declaratory judgment is merely a judicial statement confirming or denying a legal right of the applicant. A declaratory judgment merely declares and goes no further in providing a consequential relief to the applicant. While consequential relief may be joined, the court still has the power to issue a pure declaration without any coercive direction for its enforcement”. The Court of Appeal in Bureau for Public Enterprises (BPE) v. National Union of Electricity Employees (NUEE) [2003] 13 NWLR (Pt. 837) 382, reiterated this view when it held that a declaratory judgment is just a pronouncement of the legal state of affairs. Given the explanation as to what a declaration is, the question that arises is whether in making an award, an arbitral tribunal such as the IAP cannot confirm or deny a legal right of the parties before it?

49. The ordinary meaning of an award may be the giving of money following an official decision. But how can the official decision be reached without a pronouncement as to the legal state of affairs? How can IAP’s award not be a quasi-judicial statement confirming or denying a legal right of the parties to the arbitral award? Modern systems acknowledge that “although arbitration awards are characteristically an award of damages against a party, tribunals usually have a range of remedies that can form a part of the award”. In thus addressing what an arbitration award is, Wikipedia has it thus:

An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law. It is referred to as an ‘award’ even where all of the claimant’s claims fail (and thus no money needs to be paid by either party), or the award is of a non-monetary nature.

Although arbitration awards are characteristically an award of damages against a party, tribunals usually have a range of remedies that can form a part of the award:

1. The tribunal may order the payment of a sum of money (conventional damages)

2. The tribunal may make a “declaration” as to any matter to be determined in the proceedings.

3. In most jurisdictions, the tribunal has the same power as a court to:

(1) Order a party to do or refrain from doing something (“injunctive relief”).

(2) Order specific performance of a contract.

(3) Order the rectification, setting aside or cancellation of a deed or other document.

50. It must not be lost sight of that international best practice in labour is now, in virtue of section 7(6) of the NIC Act 2006 and section 254C(1) and (2) of the 1999 Constitution, part of our labour jurisprudence. This being so, the logic of the point I seek to make is that since it is impossible to give or grant an award without pronouncing as to the legal state of affairs or without a statement confirming or denying a legal right, case law authorities which restricted declaratory and injunctive reliefs to only courts must be distinguished in terms of the modern jurisprudence of arbitration. This is especially so given that the decision(s) of the dispute resolution processes of Part I of the TDA including any decision of the IAP is never final. An appeal lies ultimately to the NIC. The recent Court of Appeal decision in Nasarawa State Specialist Hospital Management Board & ors v. Mohammed [2018] LPELR-44551(CA), not only affirmed the power of the NIC to grant declaratory and injunctive reliefs unlike the position prior to the Third Alteration to the 1999 Constitution, but it went on to recognize the necessity to treat/apply older case law authorities with caution, especially case law authorities that pre-date the Third Alteration. For instance, on the Supreme Court case of Osoh v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1, this is what the Court of Appeal said:

Osoh v. Unity Bank Plc supra, which the lower Court relied on is inapplicable to the instant matter as it was decided on the basis of the Trade Dispute Act and the 1979 Constitution which did not give jurisdiction on matters relating to employment to the National Industrial Court. The Supreme Court was not called upon to consider sections 6(1)(5)(cc) and 254C(1)(a) of the 1999 Constitution of Nigeria.

51. The dispute in issue in the instant case is the determination of the question whether the workers and employees of the 2nd defendant come within the jurisdictional scope and so should be unionised by the 1st or 2nd defendant. This dispute, for the reasons that I earlier gave, is a trade dispute. The fact that the claimant in the instant case is praying for declaratory and injunctive reliefs to that effect does not take away the fact that the dispute ought to have gone through the dispute resolution processes of Part I of the TDA. The mere fact that the claimant couched some of his reliefs as declarations and an injunction does thereby take away the dispute resolution processes of the TDA since these processes involve the confirmation or denial of legal rights anyway. It is intrinsic in an award of say the IAP that legal rights are confirmed or denied. So specially asking for a declaration or injunctive reliefs just so as to escape the processes of Part I of the TDA, as the claimant just did, should not thereby be read as activating the original jurisdiction of this Court especially as section 7(3) of the NIC Act 2006 allows for conciliation and arbitration before the intervention of the NIC. To underscore this point, section 254C(3) of the 1999 Constitution not only permitted this Court to establish its own Alternative Dispute Resolution (ADR) Centre, but the proviso to same subsection (3) states that nothing shall prelude the NIC from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal in respect of any matter that the NIC has jurisdiction to entertain or any matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation. Section 7(3) and (4) of the NIC Act 2006 is just one such Act of the National Assembly.

52. Incidentally, the Court of Appeal in Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors did not consider the effect of section 254C(3) of the 1999 Constitution. This is understandable. The cause of action dealt with in Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors was one that pre-dated the Third Alteration to the 1999 Constitution. In fact the ruling that led to the appeal was delivered by this Court on 18th May 2009. On this ground, Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors is distinguishable. I rely on Nasarawa State Specialist Hospital Management Board & ors v. Mohammed [2018] LPELR-44551(CA) in coming to this conclusion. Accordingly, having made the specific finding that a dispute over jurisdictional scope and as to who between the claimant and the 1st defendant can unionise workers/employees of the 2nd defendant is a trade dispute within the meaning of the term, I find and hold that the instant case is one that ought to exhaust the dispute resolution processes of Part I of the TDA before the appellate jurisdiction of this Court can be activated. Incidentally, by paragraphs 12 to 14 of the affidavit in support of the originating summons, the dispute resolution processes of Part I of the TDA have actually been activated by the 1st defendant and the Federal Ministry of Labour had intervened in terms of its power to mediate and conciliate. I am of the firm view that parties ought to have allowed that process to be exhausted before rushing to this Court as the claimant did. For all the reasons I have given, placing reliance on especially section 254C(3) of the 1999 Constitution, which does not prelude the NIC from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal in respect of any matter that the NIC has jurisdiction to entertain or any matter as may be prescribed by an Act of the National Assembly, and the finding that the instant dispute is actually a trade dispute, I hold that the claimant is prematurely before this Court in this suit. The instant suit is accordingly incompetent. I so find and hold.

53. On the premise that I may be wrong in holding that this suit is premature and so incompetent, I shall proceed to consider the merit of the 1st defendant’s preliminary objection, which is that the subject matter of the instant suit i.e. who, between the claimant and the 1st defendant, has the jurisdictional scope and so can unionise the workers/employees of the 2nd defendant, is one that has been decided by Tijjani J of this Court in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 as per the judgment of 22nd June 2018. To the 2nd defendant, without prejudice to the arguments it canvassed, Suit No. NICN/LA/63/2018 decided no issue between the parties as the court declined jurisdiction on account of want of locus standi on the part of the claimant; and that the Court in the said suit held albeit obiter dicta that the 1st defendant herein has no right to organize the staff of the 2nd defendant. I read through the judgment delivered in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 on 22nd June 2018. The defendant in that case had raised a preliminary objection as to the locus of the claimant to bring the suit, which objection was upheld by Tijjani J. His Lordship, however, proceeded to determine the merit of the case despite that he upheld the preliminary objection of the defendant. This is nothing new as courts are today advised to decide matters on merit even when they uphold objections as to jurisdiction especially where evidence had been led or the matter was filed vide originating summons. The Court of Appeal did same in Council of National Teachers Institute, Kaduna & Anor vs. Non-Academic Staff Union of Educational and Associated Institutions [2018] LPELR-44557(CA). This is exactly what Tijjani J did in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 as per the judgment of 22nd June 2018.

54. In determining the merit of the case, Tijjani J in Suit No. NICN/LA/63/2018 held that NUATE cannot unionise the workers of Newrest ASL Nigeria Plc. Is this judgment an obiter dictum as submitted by the 2nd defendant? I do not think so. In Feed & Food Farms (Nigeria) Ltd v. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387, His Lordship Tobi, JSC (of blessed memory) was specific when he held thus:

Let me quickly take the Issue No. 1 formulated by the cross appellant. Any court below the Supreme Court is in order to take, in the alternative, the merits of the matter after coming to the conclusion that it has no jurisdiction to hear the matter. This is to make sure that the case is not further delayed if the appellate court comes to the conclusion that the ruling on lack of jurisdiction is wrong. Accordingly, I am of the view that it is good wisdom on the part of the Court of Appeal to take the other issues in the appeal after coming to the conclusion that it had no jurisdiction to hear the matter.

And in Yunus Adewale Adefowope v. MTN Nigerian Communications Ltd unreported Suit No. NICN/LA/492/2016, the judgment of which was delivered on 15th May 2019, the decision of this Court was that the suit was incompetent. However, this Court went ahead to determine the merit of the case in the event of an appellate reversal of the holding of the Court that the case is incompetent. Consequent, on these case law authorities, I am of the firm belief, and I so hold, that the judgment of Tijjani J in Suit No. NICN/LA/63/2018 to the effect that NUATE cannot unionise the workers of Newrest ASL Nigeria Plc is not obiter dictum but a judgment on the merit of the case.

55. The issue that the claimant brought to this Court as per the instant case is who as between the claimant and the 1st defendant has jurisdictional scope and so can unionise the workers/employees of the 2nd defendant. Tijjani J in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 as per the judgment of 22nd June 2018 has already held that the 1st defendant (NUATE) cannot unionise the said workers/employees as it has no jurisdictional scope over the said workers/employees. His Lordship arrived at this decision after considering the provisions of the Third Schedule PART B of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004, the very provisions the claimant is now asking this Court to consider and grant the reliefs it seeks. The decision of Tijjani J in Suit No. NICN/LA/63/2018 is a decision on merit. It is immaterial that the claimant in the instant suit was not a party to Suit No. NICN/LA/63/2018. Here, I rely on Gerawa Oil Mills Ltd v. Abdulkadir Manzo Babura [2018] LPELR-44720(CA) and Abubakar v. Bebeji Oil and Allied Products Ltd & ors [2007] LPELR-55(SC). The point is that the issue that has been brought before this Court as per the instant case has already been decided. I so find and hold. This being so, the preliminary objection of the 1st defendant has merit and so is hereby upheld. Accordingly, the instant suit is herein dismissed.

56. The instant suit was brought vide an originating summons. I indicated earlier that courts are today advised to decide matters on merit even when they uphold objections as to jurisdiction especially where evidence had been led or the matter was filed vide originating summons, citing Feed & Food Farms (Nigeria) Ltd v. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387. Once again, on the supposition that I am wrong in dismissing this suit, I shall proceed to consider the merit of the originating summons. In considering the merit of the originating summons, I need to clarity a thing or two.

57. The claimant had argued that the counter-affidavit of the 1st defendant is incompetent, having violated section 115(2) of the Evidence Act 2011 as they contain extraneous matters by way of prayer, objections, legal argument or conclusion. The claimant then urged the Court to “strike out the said paragraphs of the counter affidavit dated the 17th day of April 2019”. The claimant did not tell this Court the offending paragraphs it wants struck out. Aside form the general submission of the claimant that the 1st defendant’s counter-affidavit violates section 115(2) of the Evidence Act 2011 as they contain extraneous matters by way of prayer, objections, legal argument or conclusion, the claimant did not give any example. Is the claimant expecting this Court to do its job? The claimant did not identify the paragraphs to be struck out. So, which paragraphs is the Court to strike out? Just as vague claims cannot be granted, vague prayers and vague submissions would equally be discountenanced. See AG of Ogun State v. AG of the Federation [2003] FWLR (Pt. 143) 206, Joe Golday Co. Ltd v. CDS Plc [2003] FWLR (Pt. 153) 376 SC at 393 and Sunday Emeje v. National Institute for Pharmaceutical Research and Development [2010] LPELR-8986(CA). As His Lordship Hon. Justice Aka’ahs, who read the leading judgment, acknowledged the law to be in John Hingah Biem v. SDP & 2 ors unreported Appeal No. SC.341/2019, the judgment of which was delivered on 14th May 2019:

…specific depositions of facts in an affidavit cannot be controverted by sweeping or general denials in a counter-affidavit. To be worthy of weighty consideration the denial must be facts which must be credible and capable of being believed and if so believed, it will sway the mind of the court from accepting the fats in the main affidavit it is opposing or countering.

The prayer of the claimant to “strike out the said paragraphs of the counter affidavit dated the 17th day of April 2019” must accordingly be discountenanced. I so hold.

58. This Court had in Errand Express Limited v. Maritime Workers Union of Nigeria unreported Suit No. NIC/LA/39/2011, the judgment of which was delivered on 26th March 2014, held thus: “…a union has not been bequeathed the right or appointed to police the world of work…a union, consequently, is not and cannot act as the policeman of labour practices in the world of work”. This being so, I do not think it is within the locus of the claimant to ask for reliefs (4) and (5). Reliefs (4) and (5) are claims for:

59. The appropriate party to seek relief (4) and the first limb of relief (5) is the Newrest ASL Nigeria Plc. The claimant knows this but chose to make Newrest ASL Nigeria Plc the 2nd defendant instead of the 2nd claimant just so that it can have a pliable defendant. I deprecated a similar behaviour in Bethel Ezego & ors v. NUFBTE & anor unreported Suit No. NICN/LA/221/2017, the judgment of which was delivered on 16th July 2018, where the 2nd defendant was sued as a defendant just so that the claimants can have a pliable defendant. Relief (4) and the first limb of relief (5) i.e. “an order of perpetual injunction restraining the 1st defendant through its officers, agents or privies from carrying out any industrial action against the 2nd defendant…” cannot accordingly be considered let alone granted. They fail and so are hereby dismissed.

60. This leaves out reliefs (1), (2), (3) and the second limb of relief (5) i.e. “an order of perpetual injunction restraining the 1st defendant through its officers, agents or privies from…attempting to take over the functions of the claimant as it relates to the 2nd defendant”. Relief (2) i.e. “a declaration that workers and employees in the 2nd defendant (Newrest ASL Nigeria Plc) do not fall within the jurisdictional scope of the 1st defendant (National Union of Air Transport Employees) as stipulated in the Third Schedule Part B No. 6 of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria (LFN) 2004” is actually the judgment of Tijjani J in Suit No. NICN/LA/63/2018. It cannot be granted in this suit. It is accordingly dismissed. We are thus left with only reliefs (1), (3) and the second limb of relief (5).

61. Reliefs (1) and (3) seek two declarations: that the workers and employees in the 2nd defendant fall within the jurisdictional scope of the claimant, not of the 1st defendant, as stipulated in item 12 of Part B of the Third Schedule to the TUA; and that the 2nd defendant should continue to recognize the claimant, not the 1st defendant, as the union for her employees. The jurisdictional scope of each of the re-structured trade unions is provided for in Part B of the Third Schedule to the TUA. Item 6 of Part B of the Third Schedule to the TUA provides the jurisdictional scope of NUATE in these words:

All workers in commercial airlines, airport authority, civil aviation authority and travel agencies except those in professional and administrative cadres.

For NUHPSW, item 12 of same Part B of the Third Schedule to the TUA provides thus in terms of its jurisdictional scope:

Workers in services involving the care of the person or his apparel. Hotels, restaurants, cafes, taverns and other drinking and eating places. Laundries and laundry services, cleaning and dyeing.

Barber and beauty shops, domestic services, portrait and commercial photographic studios, shops, offices and cleaning. Security services, recreational and tourist organisations in the private sector and related services.

62. A cardinal guiding principle in the restructuring of the trade unions relates to the need for compatibility of the trade unions in terms of product, skill, services and conditions of employment. Applying this principle, this Court had in a number of cases permitted unionization along industry lines. Some examples will suffice. In The Nigeria Merchant Navy Officers and Water Transport Senior Staff Association & anor v. The Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) & anor unreported Suit No. NIC/ABJ/104/2011 the judgment of which was delivered on February 8, 2013, the question that arose was whether a company that provides marine services to especially the oil and gas sector is a maritime company (in which event its workers are to be unionised by the claimants) or it is an oil and gas company (in which case its workers are to be unionised by the defendants). This Court held that the workers in Lamnalco Nigeria Limited are more compatible with the claimants than with the defendants as they are workers in the maritime sector by training and work though their services are essentially offered to the oil and gas sector; and we so held.

63. A second example is Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) v. Maritime Workers Union of Nigeria (MWUN) [2015] 61 NLLR (Pt. 214) 403, where the issue for determination was which union between NUPENG and MWUN had the unionization right over the “employees of GAC Manning Services on board FPSO Sendje Berge”. The Court found FSPO Sendje Berge to be a vessel but engaged in the oil and gas business. The Court went on to hold that the workers of GAC Manning Services (Nig.) Ltd on board FSPO Sendje Berge as described in the various Exhibits frontloaded by the claimant are workers in the maritime industry and so if eligible can only be unionized by MWUN. Accordingly, the Court found and held that it is the Maritime Workers Union of Nigeria (MWUN) that can unionize the employees of GAC Manning Services on board FPSO Sendje Berge.

64. The last example is Errand Express Limited v. Maritime Workers Union of Nigeria unreported Suit No. NIC/LA/39/2011, the judgment of which was delivered on 26th March 2014, where this Court held that the defendant (MWUN) cannot unionise the employees of a courier company (Errand Express Ltd), and so it has no business calling out the employees of the courier company on any industrial action.

65. Paragraph 8 of the affidavit in support of the originating summons, relying on the memorandum of association and articles of association of the 2nd defendant, describes the 2nd defendant as:

“…a registered quoted company in Nigeria and into the business of catering services and hospitality service provider with clients across the business sectors in Nigeria and services to financial institutions foreign embassies and airlines. It also carry (sic) on the business of proprietors of restaurants, hotels, refreshment and tea rooms, cafes and milk snack bars, tavern beer house lodging and house keepers.

The 2nd defendant in paragraph 3(i) of its counter-affidavit in opposition to the originating summons admitted paragraph 8 of the claimant’s affidavit in support of the originating summons.

66. The 1st defendant on its part in paragraph 9 of its counter-affidavit in opposition to the originating summons simply stated thus: “Paragraph 8 is only true to the extent that the 2nd Defendant renders services in the 1st Defendant”. This says very little. The 1st defendant did not state what the business of the 2nd defendant is. Simply stating that the 2nd defendant renders services to the 1st defendant without stating the exact nature of the services rendered is just being evasive and vague; and I so find and hold. A counter-affidavit in an originating summons approximates to the defence pleadings in an action commenced by way of a writ of summons or complaint. This means that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See Akande v. Adisa & anor [2012] LPELR-7807(SC), El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359.

67. I accordingly accept the evidence of the claimant and the 2nd defendant that the business of the 2nd defendant is that of catering services and hospitality service provider. This means that the workers/employees of the 2nd defendant fall squarely within the jurisdictional scope of the claimant as provided for under item 12 of Part B of the Third Schedule to the TUA. This being so, only the claimant can unionise the workers/employees of the 2nd defendant. I so find and hold. Reliefs (1), (3) and the 2nd limb of relief (5) accordingly succeed and are hereby granted in the following terms:

(1) It is declared that workers and employees in the 2nd defendant (Newrest ASL Nigeria Plc) fall within the jurisdictional scope of the claimant (National Union of Hotels and Personal Services Workers) as stipulated in item 12 of Part B of the Third Schedule to the Trade Unions Act Cap T14 LFN 2004 and not the 1st defendant.

(2) It is declared that the 2nd defendant should continue to recognize the claimant as the union for her employees and not the 1st defendant.

(3) The 1st defendant through its officers, agents or privies is hereby restrained from attempting to take over the functions of the claimant as it relates to the 2nd defendant.

68. For the avoidance of doubt, however, my decision in this matter is that:

(a) This case is premature and so is incompetent, it being a trade dispute for which the processes of Part I of the TDA ought to have been exhausted before this Court can be approached in its appellate jurisdiction.

(b) The preliminary objection of the 1st defendant succeeds and so this case is dismissed as Tijjani J in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 as per the judgment of 22nd June 2018 had already decided the issue at stake in the instant case.

69. All other findings and holdings made are contingent upon an appellate holding that this Court is wrong in finding and holding that there is no competent suit before it and that the judgment of Tijjani J of 22nd June 2018 in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 did not decide the issue at stake in the instant case; in which event the judgment on merit of this Court would be the declaratory and injunctive orders made in paragraph 67 above.

70. Judgment is entered accordingly. I make no order as to cost.

……………………………………

Hon. Justice B. B. Kanyip, PhD