IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HONOURABLE JUSTICE K.D.DAMULAK
ON MONDAY THE 25th DAY OF MARCH, 2019
SUIT NO:NICN /ABJ/24/2019
BETWEEN:
NATIONAL INSURANCE COMISSION
CLAIMANT
AND
1.ASSOCITION OF SENIOR CIVIL SERVANTS
OF NIGERIA(ASCSN)
2.IBRAHIM ABDULLATEEF
3.UCHE NWOSU
DEFENDANTS
REPRESENTATION
N. L. Sumi Esq. for the claimant
A. O. Igeh for the defendant
JUDGMENT
INTRODUCTION
By an originating summons dated and fled on 7/2/2019 and accompanied by all the processes required by the Rules of this Court, the claimant seeks for the determination of the following 3 questions:
1.Whether having regards to the provisions of Articles 5.6 – 5.6.1-7 of the
Claimant applicable conditions of service, the 2nd and 3rd Defendants who are president and secretary of the domestic unit of claimant and financial members of the 1st Defendant can threaten to embark on strike without exhausting the laid down procedure.
2.Whether in the circumstances of this case, the 1st Defendant can lawfully threaten and or embark on a strike and complete shutdown of the claimant’s business premises without notice.
3.whether in the circumstances of this case the 1st defendant are right in issuing the Plaintiff a 7 day ultimatum to relay the Board decision of 24th January 2019.
The claimant prays for the following five reliefs:
A DECLARATION that the Claimant’s conditions of Service is binding on the 2nd and 3rd defendants and by extension the 1st defendant as well.
ADECLARATION that the 1st defendant cannot call on the 2nd and 3rd defendants to embark on strike and or complete shutdown of the Claimant without following due process.
AN ORDER directing the 2nd and 3rd Defendants to follow and fully exhaust the grievance procedure as provided in the staff Condition of Service of the Claimant and section 6(a-e) of the TUC Act before taking or embarking on strike.
AN ORDER directing the Defendants whether by themselves, their agents and or privies including all persons receiving instruction from any of them from threatening and or embarking on strike and or complete shutdown of the Claimants· premises anywhere in Nigeria or in any way interfering with the smooth operation of the Claimant without due observation to the laid down procedures.
SUCH FURTHER ORDER (s) as the court may deem fit to make in the circumstances of this case.
2. FACTS OF THE CASE
The claimant is the employer of the 2nd and 3rd defendants who are officials of the 1st defendant, an umbrella association of senior staff of the claimant. The defendants are said to have threatened by a threat letter dated 31/1/2019 to go on strike and completely shut down claimant’s premises if the resolutions of the claimant’s Board meeting does not turn out to be in conformity with their stand. The defendants are alleged to have previously embarked on strikes between the year 2015 to 2018 without notice. That the strike will cause irreparable loss to commerce and trade within Nigeria.
3.CASE OF THE CLAIMANT
(a) The affidavit
In a 19 paragraph affidavit deposed to by one Dr, Habila Amos, Director, Administration and Human Resources of the claimant, He deposed that the 1st defendant is a registered Trade Union within the claimant and the 2nd and 3rd defendants are unit president and secretary of the 1st defendant. That the claimant met on 24/1/2019 and deliberated on issues that are vital to the advancement of its statutory responsibilities and that the claimant’s management committee has already examined the defendants’ grievance and made recommendations to the Board for consideration and subsequent approval. That the defendants have threatened to embark on strike and completely shut down the claimant’s premises as soon as they realize that the resolutions of the Board meeting are not in conformity with their stand. That the defendants have embarked on similar strikes between February, 2015 to October, 2018 and that the issues were subsequently resolved upon the intervention of the Minister of Labour at the invitation of the claimant. That in all the above instances, the defendants refused to follow and or observe the due process for addressing grievances as provided in the claimant’s condition of service. That the defendants did not issue any notice to the claimant before embarking on such strikes. That the 1st defendant has again issued a 7 day ultimatum to the plaintiff on 31/1/2019 to relay the Board’s decision of 24/1/2019. That unless the defendants are restrained, they will carry out their threat and the whole Insurance Company will be grounded thereby causing irreparable loss to commerce and trade in Nigeria.
The staff condition of service and the threat letter were annexed as exhibits “A’ and “B” respectively.
(b) Counsels written address.
In the originating summons, three questions were submitted for determination; however, in the written address of counsel, he formulated one issue for determination thus;
Whether going by the provisions of article 5.6 of the NAICOM STAFF CONDITIONS OF SERVICE 2010, the defendants have complied with all the procedures contained therein to warrant an Industrial Action by way of strike and complete shutdown of the claimant’s premises by the defendants.
Submitting on this lone issue, the claimant’s counsel answered the question in the negative. In his rather scanty address, the whole of learned counsel submission is that the defendants cannot embark on an industrial action without following and exhausting article 5.6 of the NAICOM STAFF CONDITIONS OF SERVICE 2010, which deals with grievance procedure to which this Court should give it its ordinary meaning. Counsel relied on OPARA VS S.P.D.C.N LTD (2015)14 NWLR (PT.1479)307 at 322; BOARD OF MANAGEMENT F.M.C MAKURDI VS ABAKUME (2016) 10 NWLR (PT.1521) 536 at 547 and OGBUCHI V DEPUTY SHERIFF, B.S.H.C (2015) 8 NWLR(PT. 1460)172 at 176.
Counsel then added, incomprehensibly, that “going by the provision of 31(6) (d) of the article Unions Act.LFN,2004 as amended, it is not complied with by the defendants and as such cannot embark on strike”.
CASE OF THE DEFENDANTS
The affidavit
The defendants filed a 35 paragraph counter affidavit deposed to by the 2nd defendant. The deponent deposed that it is not true as alleged in paragraphs 6 and 7 of the claimant’s affidavit that the claimant’s Board and management committee examined the defendants’ grievances and made recommendation to the Board. Paragraphs 7 to 12 accuse the claimants of violating and refusing to honour previous Memorandum of understanding, violation of Public Service Rules and condoning corruption. That the 1st and 3rd defendants did not threaten anybody or the claimant to embark on strike or complete shutdown of the claimant’s premises. That the 1st defendant was not in existence in 2015 and 2016 and so could not have embarked on strike in those years as alleged in paragraph 9 of the affidavit in support. That the defendants have never shutdown the claimant’s premises. That the ultimatum in claimants’ exhibit B is not in respect of any strike and the seven days ultimatum therein has since elapsed on 7/1/2019 and the defendants have not embarked on any strike. That the 1st defendant is not bound by the claimant’s condition of service and that the 2nd and 3rd defendants do not have any personal grievance against the claimant.
(b) Counsels written address.
In a correspondingly scanty written address, learned counsel to the defendants formulated a lone issue as follows;
Whether the claimant/applicant is entitled to the grant of the reliefs sought.
Submitting on this lone issue, learned defendants counsel argued that the claimant is not entitled to the reliefs sought because the claimant has failed to place relevant and sufficient material facts before the court.
Counsel also submitted that the discretion of the Court ought to be refused in view of the conduct of the claimant in refusing to honour agreements and violating the Public Service Rules as well as concealing facts with respect to conduct of the claimant.
DEFENDANTS’ PRELIMINARY OBJECTION.
By a notice of preliminary objection dated 26/2/2019 and filed on the same date, the defendants want an order of court dismissing the originating summons on the following five grounds;
The suit was wrongly instituted by an originating summons.
The suit as presently constituted is incompetent.
That cause of action in this suit involves dispute on question of facts not law.
The facts are highly contentious and cannot be resolved on affidavit evidence.
The suit as presently constituted does not disclose any reasonable cause of action against the defendants.
In his written address, defendants counsel formulated a lone issue thus;
Whether having regard to the circumstances of this case, the originating summons is incompetent.
Learned defendants’ counsel submitted that commencement of actions in this court is regulated by Order 3 of the Rules of this Court 2017 and that commencement by Originating Summons is provided for in Order 3 Rule 3.
Counsel then submitted that the condition of service and the defendants’ letter of ultimatum are neither a law nor an instrument made under any law requiring the interpretation of this honourable Court. Counsel relied on of GOLDIE ELKASA & 4 ORS Vs. ALUMINIUM SMELTER CO. OF NIGERIA PLC (ALSCON) (2014) 16 NWLR (Pt 1434) at pp 546-547.
Counsel submitted that the facts in issue in this case are contentious, that an Originating Summons will not lie in favour of the plaintiff where the proceedings are hostile in the sense of violent dispute. That the circumstances that led to the defendants threatened strike needs to be looked at and determined. That from the affidavit of the claimant alone, it is clear that the facts contained in the affidavit are contentious and need to be heard on the merit. DR ABDULFATTAH OLABODE JIMOH V OBA SAMSON ALESHINLOLOYE II & 3Ors (2014) 15NWLR (Pt 1430) at P.282.
Counsel submitted further that where a suit is not initiated by due process of law, the suit is incompetent and where the suit was heard by a Court, the proceedings before the Court are a nullity. That once the Rules of Court provide for a particular way for commencing an action, a plaintiff is bound to follow that mode.
CLAIMANT’S REPLY TO PRELIMINARY OBJECTION.
The claimants filed a reply on point of law to the preliminary objection on 6/3/2019. Learned claimants counsel argued that where there are disputes in an affidavit, the Court can resolve the dispute by comparing the depositions with the documents before the Court as documentary evidence is the best form of evidence serving as a hanger by which to test the veracity of any oral testimony. Counsel relied on FBI BFI GROUP CORP. V. BUREAU OF PUBLIC ENTRPRISE (2013) ALL FWLR (Pt.676) and of CHIEF JAMES ADEBAYO OYEWUSI & ORS v. OBA SUNDAY OIAGBAMI &. ORS (2018) LPELR-44906(SC)
Counsel also contended that the Court is empowered to resolve the dispute by calling oral evidence of the deponent or other witnesses. Section 116 Evidence Act and CHAIRMAN NATIONAL POPULATION COMMISSION V. CHAIRMAN, IKERE LOCAL GOVT &. ORS (2001) LPELR-3166(SC)
That the use of a wrong procedure does not rob the Court of jurisdiction.UDO V THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS & STAR (2013) LPELR-19910(SC)
Finally, counsel submitted the defendants have merely contended that there exists a question of facts filed by the parties; however, the defendants have failed to show that these questions of facts rob this honorable Court of the jurisdiction to entertain this instant suit.
COURT DECISION.
As indicated above, the defendants have raised a preliminary objection; it is the duty of this Court to first dispose of the preliminary objection one way or the other.
(A)PRELIMINARY OBJECTION
Besides the ground that there are contentious matters in this case, there is also the ground that the matter does not disclose a reasonable cause of action against the defendants. It would have been the view of this Court that such a question is better resolved in considering the merit of the case, however, the counsel did not make any arguments or submission on this issue in his written address in support of the preliminary objection and so the claimants’ counsel did not respond to that issue either, that issue is deemed abandoned and I do not intend to arrogate to myself the power to resurrect it when my duty at this point is to bury it. That issue remains abandoned.
What are the contentious facts in this suit that render it inappropriate for an Originating Summons? Learned counsel for the defendants did not deem it fit to bring this to the fore, he left it for the Court to fish out. The claimant’s counsel similarly argued on what should happen if there are contentious facts without saying whether or not there are contentious facts in this case.
I will however, reluctantly, proceed to consider if there are hostile facts in this case rendering it improper for consideration under the Originating Summons procedure.
By the affidavit and the counter affidavit before the Court, a contention about facts cannot be determined on the facts in the claimants affidavit alone as contended by the defendants’ counsel, the defendants counter affidavit in this instance is what will determine if there are hostile facts as hostility of facts means a dispute on facts between the parties and there cannot be dispute of facts from one affidavit.
Reading the affidavit and the counter affidavit, the seeming contention about facts have to do with whether the defendants went on strikes in 2015 and 2016,whether they issued notices and what role the minister of labour played. Given the real issue for determination in this case which is whether the letter of the defendants is a threat of strike, and if so, whether it was properly issued in line with condition of service; I find and hold that the dispute as to these other facts are peripheral and superficial as they are not substantial and material affecting live issues in the matter and accordingly, this action can be sustained by an Originating Summons. In such a situation, there is no need to call for proof by oral evidence. See EDEH &ORS V OKORIE (2018) LPELR where the court held;
“Of course, it is not the law that in an action commenced by originating summons, the fact that a defendant filed a counter-affidavit to it, is tantamount to saying that the matter is contentious and hostile. The decision of the Supreme Court in Barrister Amanda Peter Pam v. Nasiru Mohammed (2008) 16 NWLR (pt. 1112) 1 at 88; (2008) 40 WRN 67 is apt and instructive, to the effect that:”It is not the law that, once there is dispute on facts, the matter should not be commenced by writ of summons. No. This is not the law. The law is that the dispute on facts must be substantial and material affecting live issues in the matter. Where disputes are peripheral, not material to the live issues an action can be sustained by originating summons”.
Every other contention on facts by the defendants border on issues on which there are documentary evidence to answer those contentions; e.g whether the defendant’s Board and Management Committee has examined the defendants grievances and or made recommendations to its Board and whether or not the 1st and 3rd defendants have threatened to go on strike which answers are to be found in the claimants exhibit 2, paragraphs 2, 4 and 7.
The defendants have contended that the condition of service and the defendants’ letter of ultimatum are neither a law nor an instrument made under any law requiring the interpretation of this honourable Court. Order 3 Rule 3 of the 2017 Rules of this Court as quoted by learned counsel reads thus;
Civil proceedings that may be commenced by way of originating summons include matters relating principally to the interpretation of any Constitution, enactment, agreement or any other instrument relating to employment, labour and industrial relations in respect of which the court has jurisdiction by virtue of the provision of Section 254(c) of the Constitution of the Federal Republic of Nigeria 1999 as amended or by any law in force in Nigeria.(underlining supplied)
Without much verbiage, the underlined portion of the Rule above shows that matters to be instituted by Originating Summons are not restricted to law or an instrument made under any law in Nigeria. The underlined portion properly brings the condition of service and the altimatum letter from the defendants within the ambit of such agreements or instruments relating to employment to be interpreted by this Court.
Furthermore, supposing that the Court found the case to have been wrongly commenced by an Originating Summons, the proper order to make would not be an order striking out the suit but one transferring the suit to the general cause list to be heard on pleadings and oral evidence See
GOLDIE EKASA & ORS v. ALUMINIUM SMELTER CO. OF NIGERIA PLC
(2014) LPELR-22658(CA) where the court held;
When a suit is commenced by an originating summons instead of writ of summons the appropriate order to be made by the court is to direct the suit to proceed with the filing of pleadings.
However, if the facts are contained in an affidavit which has been controverted, the court has a duty to ask the parties to adduce oral evidence to resolve the issues in controversy.
See also MR. UGOCHUKWU IGNATIUS ANAGWU v. INDEPENDENT NATIONAL
ELECTORAL COMMISSION & ORS (2010) LPELR-9127(CA)
On the whole, I find no merit in the preliminary objection and it is accordingly dismissed.
(B)JUDGMENT ON THE MERIT OF THE CASE
I have considered the affidavit and counter affidavit of both parties as well as the written submissions of both counsel, I am of the opinion that the issue for determination is whether the letter of the defendants(exhibit B) is a threat of strike, and if so, whether it was properly issued in line with the condition of service.
The main complaint and fear of the claimants is that by a letter dated 31/12/2019, (exhibit B) the defendants have threatened to embark on strike and completely shut down the claimant’s premises as soon as they realize that the resolutions of the Board meeting are not in conformity with their stand. The claimants contend that such action is and will be contrary to paragraph 5.6 of claimants’ condition of service (exhibit A). The defendants on their own part, did not deny the letter, exhibit B, but contend that they did not threaten to go on any strike and to shut down the premises of the claimant and that the ultimatum in exhibit B had since expired on 7/2/2019 and they have not proceeded on any strike action.
The claimant counsel, apart from arguing that the defendants action is or will be contrary to article 5.6 of the condition of service, did not demonstrate the requirements of the said provisions and in what way does the action of the defendants violate the said condition.
Article 5.6 of the claimant’s staff condition of service, (exhibit A) provides as follows;
GRIEVANCE PROCEDURE
The term Grievance shall mean any complaint arising from the interpretation, application or claimed violation of an employee’s Conditions of Service. Where the complaint is raised by an individual employee, it shall be treated as an individual grievance. If the complaint is raised by a group of employees and it affects or is capable of affecting more than one employee, it shall be referred to as collective grievance.
The following procedure shall be followed strictly as applicable in resolving respective grievances as defined in “a” above.
stage 1
An employee who has an individual grievance shall make this known in writing in the first instance to his immediate Head of department who shall react to the grievance within a period of four (4) working days from the time the grievance was made known to him by the employee. This stage shall also be applicable in collective grievance cases involving more than one employee who works under the same head of department.
5 .6 .2 stage 2
If the employee or a group of employees under the same head of department are not satisfied with the reaction of his/their immediate head of department, he/they shall have the right to make his/their Grievance known orally or in writing to the next level Head of Department who shall react to the grievance within four (4) working days.
5.6.3 stage 3
If the employee or a group of employees under the same head of department is/are not satisfied with the reaction received at Stage 2, he/she/they shall have the right to make the grievance known to the Chairman of the Staff Establishment Committee (SEC) who shall convene a meeting of the committee .The committee will invite all parties involved and conclude the issue within 10 working days.
stage 4
If the employee or a group of employees is/are not satisfied with the reaction of Establishment Committee, he/they shall have the right to submit the grievance in writing to the Commission’s Management through the Director, Admin & Human Resources or his accredited representative, who shall process the grievance within fourteen (14) working days.
stage 5
If the employee or a group of employees is/are not satisfied with the reaction of management, he/she/they shall have the right to submit the grievance in writing to the Governing Board through the CFI, who shall take appropriate steps to resolve the grievances within thirty (30) working days of being notified of the grievance and in accordance with the conditions stated in the Staff Conditions of Service.
stage 6
If the employee or a group of employees is not satisfied with the reaction of management, he/she/they shall have the right to submit the grievance in writing to the supervising Ministry (Federal Ministry of Finance) through the CFI, which shall take appropriate steps to resolve the grievances within thirty (30) working days of being notified of the grievance and in accordance with the conditions stated in the Staff Conditions of Service.
5.6.7 stage 7
If the employee or a group of employees is not satisfied with the reaction of supervising Ministry (FMF), he/she/they shall have the right to submit the grievance in writing to the office of head of civil service through the CFI, which shall take appropriate steps to resolve the grievances within thirty (30) working days of being notified of the grievance and in accordance with the conditions stated in the Staff Conditions of Service.
Although neither the claimant nor the defendant saw any need to plead facts of the dispute and the steps taken so far, it is safe to assume form the above condition of service that the parties are now at stage 5 of Article 5.6 of the exhibit A which deals with grievance procedure. At this stage, I must agree with the claimant that the defendants cannot go on strike or threaten to go on strike at stage 5 of the grievance procedure.
I find the denial of the defendants about the holding of the claimants Board meeting on 24/1/2019 and examination of defendants grievances and making recommendations on same to be untenable in view of the heading and paragraph 2 of their letter (exhibit B) to the claimant which heading and paragraph reads as follows;
7 DAY ULTIMATUM FOR THE NAICOM MANAGEMENT TO RELAY THE CONCLUSION ON NAICOM STAFF MATTERS REACHED BY THE BOARD AT ITS MEETING OF THURSDAY,24TH JANUARY 2019.
It has become necessary that the Leadership of the Association call on you, once again, especially now that the much awaited Board Meeting, where approvals will be given for much of the Union’s demands in the Commission, was held on Thursday 24th January, 2019. Consequently, the leadership of the Association is very hopeful that the approvals given on outstanding staff matters at the meeting and which are awaiting communication and/or implementation will be in line with the Unions’ requests already captured in previous MOUs reached and signed by parties.
However, what should call for determination now is the denial of the defendants that they did not threaten any strike or shut down of claimants premises and that the ultimatum expired on 7/2/2019 and they have not gone on strike.
That the ultimatum elapsed on 7/2/2019 and the defendants have not gone on any strike is not in dispute and that question does not deserve further space and time.
The question that is left is whether by their letter dated 31/1/2019, (exhibit B), the defendants have threatened to embark on strike and completely shut down the claimant’s premises as soon as they realize that the resolutions of the Board meeting are not in conformity with their stand. This question can be adequately answered by examining paragraphs 2, 4 and 7 of the said letter and they are hereunder reproduced;
7 DAY ULTIMATUM FOR THE NAICOM MANAGEMENT TO RELAY THE CONCLUSION ON NAICOM STAFF MATTERS REACHED BY THE BOARD AT ITS MEETING OF THURSDAY, 24TH JANUARY 2019.
It has become necessary that the Leadership of the Association call on you, once again, especially now that the much awaited Board Meeting, where approvals will be given for much of the Union’s demands in the Commission, was held on Thursday 24th January, 2019. Consequently, the leadership of the Association is very hopeful that the approvals given on outstanding staff matters at the meeting and which are awaiting communication and/or implementation will be in line with the Unions’ requests already captured in previous MOUs reached and signed by parties.
4. Sequel to the above, the Association of Senior Civil Servants of Nigeria wishes to request that the NAICOM Management should, within 7 days of the date of this letter, relay the outcome of the Board Meeting to members of staff of the NAICOM in order to win their confidence and restore industrial peace and harmony to the National Insurance Commission.
7. While waiting for Management’s early response, the ASCSN wishes to absolve itself of blames, whatsoever, if the NAICOM Management elects, as usual, to treat this demand with levity and when, as a result, affected members of staff of NAICOM decides to deploy other extant Labour tools in order to seek justice.
Apart from the use of the expression “7 day ultimatum”, it appears to the Court that the defendants were very careful and circumspect in their choice of words and use of language.
In paragraph 2, the defendants said the Association is very hopeful that the approvals will be in line with the unions requests already captured in previous MOUs reached and signed by parties. This cannot be read to mean that the defendants have said the approvals must be in conformity with their stand or they will go on strike and completely shut down claimant’s premises.
In paragraph 4, the defendants simply requested that the NAICOM management should within seven days relay the outcome of the meeting to members of staff of NAICOM to win their confidence and restore industrial peace. There is neither an insistence on defendants’ stand, a threat of strike or shut down of claimant’s premises in this paragraph.
In paragraph 7, the defendants are saying do not put the blame on us if you treat this matter with levity as usual and affected members of staff of NAICOM decide to deploy other extant labour tools in order to seek justice. There is no insistence on conformity with defendants’ stand or threat of any action by the defendants in this paragraph let alone a threat of strike or shutting down the premises of the claimant by the defendants.
I find the fear and complaint of the claimants that by the letter dated 31/12/2019, (exhibit B) the defendants have threatened to embark on strike and completely shut down the claimant’s premises as soon as they realize that the resolutions of the Board meeting are not in conformity with their stand to be a product of over interpretation of the said letter.
Furthermore, the ultimatum letter, exhibit B, was written on 31/1/2019, the ultimatum expired on 7/2/2019, the day this case was filed; the defendants apparently have not embarked on any strike even though it also appears that the claimant Board has not, as at the time of arguing this case, relay the outcome of the said meeting to the NAICOM staff as requested by the defendants or as required by Article 5. 6.5 of the condition of service, exhibit A. The fear is therefore unreal and unfounded.
On the whole, I find no merit in the case of the claimant and same is hereby dismissed.
I make no order as to cost.
……………………..
HON.JUSTICE K.D.DAMULAK
NICN, ABUJA
