ENUGU ELECTRICITY DISTRIBUTION PLC -VS- NATIONAL UNION OF

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: MONDAY 3RD JUNE 2019 SUIT NO.NICN/EN/34/2018

BETWEEN:

ENUGU ELECTRICITY DISTRIBUTION PLC…………..CLAIMANT

AND

NATIONAL UNION OF ELECTRICITY EMPLOYEES

SENIOR STAFF ASSOCIATION OF ELECTRICITY DEFENDANTS

AND ALLIED COMPANIES

APPEARANCES:

P.A. AFUBA, WITH S.C. AFUBA, FOR THE CLAIMANT.

N.O. CHUKWUEZI FOR THE 1ST DEFENDANT.

S.A. EGBO FOR THE 2ND DEFENDANT.

JUDGMENT

INTRODUCTION

Originating summons commenced this suit. The originating summons dated 31st October 2018 was filed 1st November 2018. The under-listed questions were submitted for the determination of the originating summons:

Whether the Defendants can lawfully embark on strike, picketing or any other form of industrial action to disrupt the operations of the Claimant at any of the offices of the Claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria to compel the reversal by the Claimant of the termination of the appointment of a member of the 1st Defendant from the employment of the Claimant for fraud.

Whether the Defendants can embark on strike, picketing or any other form of industrial action to disrupt the operations of the Claimant at any of the offices of the Claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria, without exploring and exhausting the mandatory industrial conflict Resolution mechanism prescribed in Sections 4, 6, and 9 of the Trade Disputes Act.

And the following reliefs against the Defendants, jointly and severally:

A DECLARATION that the Defendants cannot, jointly or severally, embark on strike, picketing or any other form of industrial action to disrupt the operations of the Claimant at any of the offices of the Claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria to compel the reversal by the Claimant of the termination of the appointment of a member of the 1st Defendant from the employment of the Claimant for fraud.

A DECLARATION that the Defendants cannot, jointly or severally, embark on strike, picketing or any other form of industrial action or otherwise disrupting the operations of the Claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria, without exploring and exhausting the mandatory industrial Resolution mechanism prescribed in Sections 4, 6 and 9 of the Trade Disputes Act.

AN ORDER directing the Defendants, either by themselves or through any of their agents, servants or privies not to embark on strike, picketing or any other form of industrial action to disrupt the operations of the Claimants at any of the offices of the Claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria on account of the termination of the appointment of a member of the 1st Defendant from the employment of the Claimant for fraud.

AN ORDER directing the Defendants, either by themselves or through any of their agents, servants or privies not to embark on strike, picketing or any other form of industrial action to disrupt the operations of the Claimant at any offices of the Claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria, without exploring and exhausting the mandatory industrial conflict Resolution mechanism prescribed in Sections 4, 6 and 9 of the Trade Disputes Act.

The above was supported with an affidavit and written address. The claimant also filed an ex-parte application for interim injunction along with the originating summons and a motion on notice for interlocutory injunction.

The 2nd defendant filed her counter affidavit supported with written address against the motion on notice on 22nd November 2018. She equally filed another counter affidavit accompanied with written address against the originating summons on the same 22nd November 2018. Still on this same 22nd November 2018, the 2nd defendant filed the memo of appearance and a notice of preliminary objection [NPO]. The NPO was supported with written address. On 12th December 2018, the claimant brought an application for enlargement of time to react on points of law to the counter affidavit and written address of the 2nd defendant against the originating summons, 2nd defendant’s written address on the motion for interlocutory injunction, 2nd defendant’s NPO. The claimant filed reply on points of law against the 2nd defendant’s written address against the originating summons on 14th December 2018, alongside the reply to the 2nd defendant’s NPO and the reply to the 2nd defendant’s written address against the motion for interlocutory injunction.

On 19th February 2019, the 1st defendant brought application for enlargement of time to file memo of appearance and counter affidavit against the originating summons. The memo was filed the same day alongside with the counter affidavit and the written address. The claimant brought application on 13th March 2019 for enlargement of time to file further affidavit to react to the 1st defendant’s counter affidavit and written address. The further affidavit and reply on points of law were filed the same 13th March 2019. These are all the processes filed in this suit. I shall now move to summary of the proceedings on the matter.

SUMMARY OF THE PROCEEDINGS

The case first came up before me on 5th November 2018. On this date, the learned counsel to the claimant/applicant: P.A. AFUBA moved the ex-parte application for interim injunction; and it was granted to pend the hearing of the motion on notice. Thereafter, the matter was adjourned to 27th November 2018 for the motion on notice. On this date, P.A. AFUBA for the claimant/applicant, N.O. CHUKWUEZI and C.H. ATU appeared for the 1st and 2nd defendants/respondents respectively. On this date, and on the agreement of the counsel to the parties, the case was fixed for definite hearing on 29th January 2019. It however came up next on 27th February 2019. On this date, the learned counsel to the claimant/applicant: P.A. AFUBA moved his application for extension of time to regularise his processes dated and filed12th December 2018 and it was granted unopposed.

On this same date, the learned counsel to the 1st defendant: N.O. CHUKWUEZI moved his application for extension of time dated 18th January 2019 and filed 19th January 2019 unopposed, and it was accordingly granted. On this same date too, the learned counsel to the 2nd defendant/applicant: S.A. EGBO applied that his NPO be heard and the Court opined that being an Originating Summons, it would take everything together at the same proceedings. Thereafter, the learned counsel to the claimant applied for adjournment to enable him reply to the counter affidavit of the 1st defendant just served on him. The case was accordingly adjourned to 20th March 2019 for definite hearing.

On 20th March 2019, the case came up as adjourned. The learned counsel to the claimant moved his motion to regularise the further affidavit and reply against the counter affidavit and written address of the 1st defendant against the originating summons. The application was granted unopposed. The Court thereafter directed that the originating summons be moved first then the NPOs and counter affidavits filed against it. Consequently, P.A. AFUBA, of counsel to the claimant moved the originating summons by relying on the affidavit in support and adopting the written address filed in support. The learned counsel also adopted the further affidavit filed in response to the 1st defendant’s counter affidavit against the originating summons and adopted the reply on points of law filed thereto. The learned AFUBA thereafter moved to the NPO filed by the 2nd defendant to adopt the reply on points of law filed against the NPO; and urged the Court to dismiss it. The learned counsel thereafter moved to his response against the counter affidavit of the 2nd defendant against the originating summons and adopted the reply on points of law filed against the 2nd defendant’s counter affidavit and written address against the originating summons.

Thereafter, it came to the turn of the learned counsel to the 1st defendant: CHUKWUEZI relied on the counter affidavit filed against the originating summons and adopted the written address in support as well. After stopping the learned counsel to the 1st defendant from commenting on the further affidavit of the claimant, the learned counsel to the 1st defendant ended his intended adumbration by urging the Court to dismiss the originating summons. Then, it came to the turn of the learned counsel to the 2nd defendant: S.A. EGBO. The learned counsel first drew the attention of the Court to the ex-parte application, which he said had already been overtaken by event and applied that it be struck out. Thereafter, the learned counsel identified the NPO filed against the originating summons and the written address in support. The learned counsel relied on the NPO and adopted the written address.

The learned counsel to the 2nd defendant adumbrated on the NPO by submitting that the originating summons was dead on arrival by virtue of sections 2(1), 4(6), 14 and 17 of the Trade Disputes Act, Laws of the Federation of Nigeria 2004 [TDA]; and urged the Court to dismiss the originating summons with punitive cost of N1m. Thereafter, the learned counsel to the 2nd defendant moved to the counter affidavit and written address filed against the originating summons; and relied on the counter affidavit and adopted the written address filed against the originating summons. The learned counsel urged the Court to dismiss the originating summons with punitive cost of N1m.

This ended hearing proceedings; and the case was adjourned to 7th May 2019 for judgment. The judgment was not ready on this date, hence it was adjourned sine die till when it is ready and date communicated to the learned counsel to the parties. Having finished with the summary of the proceedings, the next duty on me is to proceed to summarise the written addresses of the parties. I shall start with those on the NPO, being threshold in nature and to be decided first.

THE NOTICE OF PRELIMINARY OBJECTION [NPO]

A. Address in Support of the NPO

The NPO has the following grounds:

That the present suit as constituted is incurably incompetent by reason of the claimant having not complied with the mandatory requirements of SECTIONS 4,6,8,9,14 and 17 of the trade [sic] Dispute Act, Cap. T8, Laws of the Federation [sic].

That the suit as presently constituted is an abuse of court process, having grossly violated laid down Case-Law Principles and Rules of this Honourable Court, vide Order 3 Rule 3 of the National Industrial Court Rules 2017 (supra).

That by reason of grounds (1) and (2), present suit as constituted lacks legal competence, thereby robbing this Honourable Court the requisite proper legal jurisdiction and competence to entertain the claimant’s present suit, hence the suit as presently constituted, is bound to be dismissed in limine, or be struck out with substantial costs.

S.A. EGBO franked the written address in support of the NPO. The learned counsel formulated a lone issue for the determination of the NPO, to wit:

Whether in total Consideration of the Facts and Evidence Placed Before This Honourable Court, This Present Suit/Application Have Satisfied All Mandatory Legal Requirements in Law to Have Clothed This Honourable Court with the Competence or Jurisdiction to Entertain and Grant Same?

Arguing the lone issue, the learned counsel submitted that, the cause of action in this suit emanated from trade dispute between the parties. The learned counsel referred to paragraphs 5-14 of the affidavit in support of the originating summons. The learned counsel submitted that, before an action based on trade dispute could be competently commenced in Nigeria, it must first have complied with the mandatory conditions precedent spelt out in sections 4, 6, 8, 9, 14 and 17 of the TDA. The learned counsel submitted that, the claimant breached these sections in bringing this action. The learned counsel cited Willie v. Charlie (2012) 11 WRN 112 at 124 to the effect that, a suit must be instituted in accordance with due process of law. The learned counsel cited Madukolu & Ors v. Nkemdillim (2001) 46 WRN 1 and Sken Consult Nig. Ltd v. Ukey on when a court is competent and the fact of competence is one of hard law and extrinsic to adjudication. The learned counsel also cited Drexel Energy v. Kay Plastic (Nig.) Ltd (2011) 51 WRN 96 at 124 and Unity Bank Plc v. Kay Plastic (Nig.) Ltd (2011) 51 WRN , 96 at 124 on the fact that fails to satisfy the conditions precedent is incurably bad and that the court lack jurisdiction to entertain it; and Cooperative and Commerce Bank (Nig.) Plc vs. A-G Anambra State & Anor (1992) 8 NWLR (Pt. 261) 528 at 556. The learned counsel urged the Court to dismiss the suit for failing to comply with the conditions precedent; and moved to the issue of Order 3, Rule 3 of the Rules of this Court.

The learned counsel argued that by virtue of these rules, originating summons wrongly commenced this suit, because, the facts are contentious. The learned counsel cited Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605 at 613. The learned counsel argued that the facts deposed in the counter affidavit showed substantial disputes of facts. The learned counsel finally urged to dismiss or strike out this suit with substantial cost, for being in abuse of judicial process. That ends the written address of the 2nd defendant’s counsel in support of the NPO. I now move to the written address of the claimant’s counsel in rebuttal.

B. Address of the Claimant’s Counsel Against the NPO

P. A. AFUBA franked this written address. On whether the argument of the learned counsel to the 2nd defendant that the claimant’s case did not meet the conditions precedent as provided in the TDA, the learned counsel to the claimant submitted that, it is a common ground that there is trade dispute between the parties as evidenced in affidavits of parties. The learned counsel argued that the trade dispute relates to demands for recall of dismissed staff. The learned counsel argued that it was the defendants who resorted to threat of strike without first taking advantage of windows provided by the TDA. The learned counsel submitted that the case before the Court does not relate to the resolution of the trade dispute as identified above as could be seen from the questions and reliefs submitted in the originating summons for determination. The learned counsel argued that what it sought to achieve in this case is not the resolution of the trade dispute but to stop the defendants from proceeding on strike against the mandatory provisions of the TDA.

The learned counsel cited section 18(1) of the TDA to the effect that, employer and workers are banned from embarking on industrial actions, unless they first comply with the procedure spelt out in sections 4 and 6 of the TDA; and that, as such, the 2nd defendant could not rationally argue that the claimant failed to comply with these very provisions in bringing this action. The learned counsel submitted that in as much as the claimant herein did not seek the determination of trade dispute in the instant suit, the provisions of sections 4, 6, 8, 9, 14 and 17 of the TDA made for the resolution of trade disputes would not apply to the case. The learned counsel thus ended arguments on the objection that the case breached the conditions precedent outlined in the TDA, and moved to the objection on breach of Order 3, Rule 3 of the NICN Rules.

The learned counsel argued that, the facts contained in paragraphs 6-14 of the affidavits in support of the originating summons are not contentious, as argued by the learned counsel to the 2nd defendant in that, the facts deposed to in the counter affidavit of the 2nd defendant are hearsay evidence and therefore inadmissible; and as such, could not contradict the those paragraphs of the affidavit in support. The learned counsel argued that because, the facts deposed in the counter affidavit were from a third hand, they offend section 115(1) & (4) of the Evidence Act 2011 in as much as S.A. Egbo who gave those pieces of information to the deponent, had no personal knowledge of the information but received them from a third party. The learned counsel cited Eye v. The Federal Republic of Nigeria (2016) 15 NWLR (Pt. 1534) 1 at 31-32. The learned counsel thereafter urged the Court to hold that, as such, the facts deposed in the affidavit in support of the originating summons are not in conflict with any fact.

The learned counsel argued further that, even if the counter affidavit were to contain admissible evidence, the evidence essentially admitted the affidavit in support of the originating summons; and as such, there is no conflict of facts to disqualify this suit for being brought by way of originating summons. The learned counsel submitted that, in the event that the Court comes to the conclusion that, the suit ought not to have been brought by originating summons, it could not strike it out, as submitted by the learned counsel to the 2nd defendant, but could merely order that, parties file pleadings by virtue of Order 3, Rule 17(2) of the NICN Rules. The learned counsel to the claimant, at this point, brought his written address against the NPO to an end, by urging the Court to dismiss the NPO. That ends arguments on the NPO. We move to the arguments on the substantive suit.

ARGUMENTS ON THE SUBSTANTIVE SUIT

A. Written Address in Support of the Originating Summons

G.B. OBI franked the written address in support of the originating summons. In arguing question 1 of the originating summons, the learned counsel submitted that, the employment of employees of the claimant does not have statutory flavour; and as such, the termination of the employment of Eze George, which gave rise to the threat of strike, does not have statutory flavour. The learned counsel cited Comptroller General Custom v. Gusau (2017) 18 NWLR (Pt. 1598) 353 at 390; and submitted that, the claimant thus, has the right to terminate Eze George’s employment at will, leaving him with only the right to sue for damages for unlawful termination and not, reversal of the termination. The learned counsel cited NNB Plc v. Osunde (1998) 9 NWLR (Pt. 566) 511 at 521 to buttress this point. The learned counsel argued that, thus, the defendants lack the legal vires to compel it to reverse the termination of Eze George. The learned counsel submitted that, the threat to embark on strike by the defendants to compel reversal, is therefore, unlawful and that, even the Court itself is incompetent to so order. On this basis, the learned counsel urged the Court to answer the question in the negative and hold that, the defendants lack the vires to hold it to ransom by threat of strike to reverse the termination in issue. Thus, ended arguments on question 1 and the learned counsel moved to his question 2.

On question 2, the learned counsel was of the opinion that, the dispute in issue between the parties, being one over employee’s employment, is a trade dispute, by virtue of section 48 of the TDA, which defined trade dispute; and as such, the procedures enumerated in sections 4, 6 and 9 of the TDA must be complied with, before the defendants could lawfully proceed on strike. On the basis of this, the learned counsel urged the Court to answer the 2nd question also in the negative and hold that, the defendants must exhaust the mandatory conflict resolution processes prescribed in sections 4, 6 and 9 of the TDA before it could lawfully embark on strike or any other industrial action. The learned counsel thereafter brought the address to an end, by urging the Court to grant the reliefs claimed. I shall now move to the written address of the 1st defendant against the originating summons.

B. Address of the 1st Defendant Against the Originating Summons

UCHE WISDOM A. DURUEKE franked this written address. Under question 1, as formulated in the originating summons, the learned counsel submitted that, the issues that called for determination in this suit, are more of questions of fact than law. The learned counsel argued that, the real question to answer is: did the defendants, at anytime, threaten to embark on strike or any industrial action against the claimant? And submitted that, once this question is answered, that ends the suit. The learned counsel argued that, in paragraph 9 of the supporting affidavit to the originating summons, the claimant said the defendants orally threatened to embark on strike to compel her to recall Eze George Amaechi but that, this has been denied in paragraphs 17 and 18 of the 1st defendant’s counter affidavit. The learned counsel submitted that, by this very fact, the anchor of the claimant’s case is knocked off. The learned counsel submitted further that, it is important to point out that, the claimant is not complaining about the 1st defendant’s letter to it and that, her complaint was on an alleged oral threat of strike and picketing. The learned counsel submitted that, since the 1st defendant has denied this, the onus shitted on the claimant to prove that, such threat was offered; and that, this, she has failed to do. The learned counsel submitted that, it becomes clear that, the case lacks substance and urged the Court to so hold.

The learned counsel argued that, the purpose of sections 4, 6 and 9 of the TDA is to ensure that, internal dispute resolution mechanisms provided are explored before coming to court and that, here, it is the claimant that rushed to Court without complying with these processes. The learned counsel submitted that, assuming that, there were actually threats to embark on strike, the procedures demanded in sections 4, 6 and 9 of the TDA are not meant to stop strikes but, are procedures that must be complied with before approaching court; and therefore, has nothing to do with industrial actions. The learned counsel signed off on question 1 of the originating summons, by urging the Court to resolve it in her favour; and moved to question 2.

In reaction to question 2 of the originating summons, the learned counsel to the 1st defendant submitted that, the issue raised by the question has no place in actions commenced by originating summons, by virtue of Order 3, Rule 3 of the NICN Rules. The learned counsel submitted that, this is so because, this suit has not invited this Court to interpret any statute, as originating summons are wont to be. The learned counsel argued that, this is still very much so because, the 1st defendant had shown in her counter affidavit against the originating summons that, there is really no threat of strike; and as such, the question was a non-starter. The learned counsel argued that, the submission of the learned counsel to the claimant that, the defendants demanded the reversal of termination of a member of staff, misconceived the whole purpose of collective bargaining in industrial relations. The learned counsel submitted that, the employees of the claimant are not modern slaves. The learned counsel submitted that, the argument on whether or not the employee of the claimant enjoys statutory flavour is totally irrelevant, as the issue does not arise on the facts of this case. The learned counsel signed off the address, by urging the Court to dismiss the case.

I shall now move to the written address of the 2nd defendant against the originating summons before coming to the replies filed by the claimant’s counsel against the two written addresses of the defendants.

C. 2nd Defendant’s Written Address Against the Originating Summons

S.A. EGBO franked this address. I need not bother to summarise this address because, it is a complete repetition of the address canvassed in respect of the NPO filed by the same counsel.

I move to the replies of the learned counsel to the claimant against the written addresses of the 1st and 2nd defendants. I take the reply on points of law filed against the 1st defendant’s written address first.

D. Replies of Points of Law Filed by the Claimant

G.B. OBI franked the claimant’s Reply on Points of Law to the 1st Defendant’s Written Address. The learned counsel argued that, the submission that the claimant has no cause of action, since the 1st defendant had denied the threat of strike, is misconceived because, the reliefs sought are clearly declarative; and as such, the Court could entertain it, whether or not the claimant has a cause of action and cited Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176 at 204 and Ikine v. Adjerode (1996) 2 NWLR (Pt. 431) 468 at 478. The learned counsel submitted that, in any event, Exhibits B and B1 constitute sufficient threats, especially from the 1st defendant, to give the claimant reason to approach the Court. The learned counsel submitted, on the issue that the origination of this suit by originating summons is wrong, as the dispute was on facts and not law that, this is misconceived. The learned counsel submitted that, Order 3, Rule 3 of the NICN Rules does not cover all situations whereby originating summons could commence an action and that, the law is that, matters where there are not likely to be substantial issue of facts, could be well commenced by originating summons. The learned counsel cited Asogwa v. PDP (2013) 7 NWLR (Pt. 1353) 207 at 283-284, H-B and Toronto Hospital Limited v. Ukpaka (2018) 5 NWLR (Pt. 1613) 426 at 444 when actions could be lawfully commenced with originating summons; and submitted that, there are no substantial dispute of facts in the instant case, and therefore, the action was properly initiated by originating summons.

There ended the reply on points of law to the 1st defendants written address against the originating summons. I shall now move to the reply on points of law to the 2nd defendant’s written address against the originating summons. P.A. AFUBA franked this address. It is dated 3rd December 2018 and filed 14th December 2018. I have read through the address and shall not bother myself to summarise it because, it is a complete repetition of the address filed against the NPO of the 2nd defendant by the same counsel. The only difference I found is, the case of Ohiomhole & Anor v. Fed. Govt. of Nigeria & Anor (2005) 1 NWLR (Pt. 907) 414 at 434-435 cited, in relation to the argument that, strike is lawful. The learned counsel submitted that, this case shows that, that conception is misconceived in view of the provisions of section 42 of the TDA, which shows that, strike is not encouraged but, if embarked on, has consequences.

I wish to observe that, I have combed the written address of the 2nd defendant against the originating summons and could not find where such issue attributed to it, was raised. This issue was rather raised in the written address of the learned counsel to the 1st defendant against the originating summons, and even at that, the learned counsel to the 1st defendant did not cite section 43 of the TDA in support of his submission. Be that as it may, I have recorded it, since one of the defendants canvassed it and the two defendants are the two different sides of the same coin, marking out a distinction without a difference. That ends the summary of all the addresses.

The next thing is to give my decision on the case. In giving my decision, it shall be divided into two parts: Part A shall deal with the NPO, while Part B shall deal with the substantive case. In giving my decision, I need to state, in consonance with practice that, I have given all the processes filed careful consideration. Because, this is a case, where no oral evidence is adduced, I have therefore, given the affidavit; counter affidavits and further affidavit filed a most careful consideration; and had it in mind that, they constitute both the pleadings and evidence in this case. I have also taken into consideration, the pertinent principles of originating summons, especially on how to resolve conflicts in affidavits. I have also given the arguments of counsel to the parties, careful consideration and also taken into consideration, all the authorities, statutory and case laws, cited.

COURT’S DECISION

A. Decision on the NPO

I adopt the lone issue formulated by the learned counsel to the 2nd defendant/applicant, in determining this NPO. I deal with the issue of impropriety in commencing the suit, via originating summons, first. Arguments and authorities were canvassed pro and against this view. I need not waste time on this. I could not find any contentious fact in dispute. The parties are agreed on the essential facts of the case. And the questions that fall for determination are, ones that relate strictly to construction of the relevant statutory provisions in issue. The quarrel, as I see it, revolves round whether or not the defendants in this suit, could proceed on strike without first complying with the provisions of the TDA in issue, and the contention of the defendants in their counter affidavits and addresses, is that, it is the claimant who failed to comply with the law, by rushing to Court. The only dispute of facts, I could find, dealt with whether or not there was threat to embark on strike. But, as it is, the 1st defendant admits, writing letter of demand that the sacked workers be recalled. By this admission, it does not need rocket science to believe that, if the demand is not carried out, the only logical thing is to embark on strike or go to the arbitral panel. So, it could be seen that, the said dispute of facts are only pedantic and not real, which amounts to ‘sound and furry signifying nothing’ [courtesy of Shakespeare] – see Jev & Anor v. Iyortyom & Ors. (2014) LPELR-23000 (SC) 46-47, paras. F-B. It follows that, the suit was properly commenced via originating summons, and I so hold.

I now come to the issue of not fulfilling the conditions precedent before filing this action. The main grouse here is that, by virtue of the provisions of the TDA cited, before any action could be properly commenced on issues dealing with trade dispute, the provisions for compulsory arbitration must be complied with, to be competent. At this stage, I need not delve too much into the niceties of industrial rights of workers/employers. It suffices to say, the jurisdiction to grant order to restrain strike or threat of strike or any industrial action or threat of such is directly vested on the National Industrial Court of Nigeria [NICN] by section 254C(1)(c) of the 1999 Constitution [as altered]; and it is clear that, the suit herein, is centred on threat of strike and prohibition of same. Whether or not this alleged threat is true, is not the subject matter of objection but that, to be thrashed out at substantive stage, to unravel the truth or otherwise of it. But presently, for the purpose of this NPO, the question is: who can make order to restrain strike? The answer is the NICN. Then, it is clear from the foregoing that, if the action is brought to restrain strike, the NICN, and not the arbitral panel mandated by the TDA, is to be approached.

That answers the issue of not fulfilling conditions precedent to bringing this action. There being, no breach of any conditions precedent in this material occasion, when the issue is to apprehend strike. Or are the defendants saying, the claimant should allow the strike to occur first before coming to Court to ask for order of mandatory injunction to direct the striking workers to stop the strike? Definitely, no responsible employer would wait first, if she has winds of threat or possibility of strike action, to allow it happen first before seeking to stop it. The law definitely allows her the proactive steps to prevent its occurrence, if justified. I therefore hold that, the provisions of the TDA in issue, even if they ought to have applied, would not apply, when the action is to prevent strike, simply because, this Court and only this Court, has the exclusive jurisdiction to make orders restraining any person from engaging in or taking any industrial action, including strike. Therefore, the NPO fails and it is accordingly dismissed in its entirety. I move to the substantive suit.

B. Decision on the Substantive Suit

If the 1st defendant, did not offer any threat to embark on strike, and as deposed to and argued, then, why challenging the suit, which seeks only to prevent strike? The argument of the learned counsel to the 1st defendant that, because, the claimant did not prove threat of strike, as such, the suit is inchoate, by being based on speculation, is not supported by logic. This, I say, because, the 1st defendant admitted, she wrote a letter of demand to the claimant, asking her to rescind her dismissal of the worker in issue. I think, that letter alone, without more, is enough to infer threat of strike, in as much as the claimant has refused to accede to the request to rescind her dismissal of the worker. This is because, in the nature of the letter of demand by the 1st defendant, is that, if it is not complied with, the two possible options opened to the 1st defendant, is either to approach the industrial arbitration panel, as enjoined by the TDA or, to embark on strike. And now that the defendants are arguing that, it is the claimant that must approach the arbitral panel, it is clear that, the defendants would embark on strike as lawful in the circumstance. In any case, such a letter is always a veiled threat of industrial action, if not complied with. This does not need rocket science to decipher; not to reach this conclusion, could only be arrived at, if and only if, the 1st defendant abandoned its letter of demand and allowed her members to roast in their own agony or seek redress by themselves.

When the 1st defendant now denied the veracity of the alleged oral threat, it follows, that, with the letter of demand, the scale of weight tilts towards the deposition of the claimant that, there was actually threat to go on strike. It should be noted that, the Court is not bound to believe a deposition in affidavit, simply because, it is not denied. For the Court to believe it, it must be cogent. But that is not the case here, issue was simply joined on whether or not there was threat, and the one backed up by a document takes precedence over the one that is just deposition without anything in support – see Jev & Anor v. Iyortyom & Ors. (2014) LPELR-23000 (SC) 46-47, paras. F-B. I hold therefore, that, there was threat to go on strike.

I come to the arguments of the learned counsel to the 1st defendant that the provisions sections 4, 6, and 9 are not meant to prevent strikes or industrial actions, but merely to compel compliance with the procedures enumerated therein before coming to Court. I think this is not correct; the procedures are to prevent strike or make it, a last resort. The simple question is: why was it necessary to undergo the procedures before approaching court? The answer is that, the provisions seek to prevent industrial actions from disrupting economic activities. That is the mischief the law intended to cure. The procedures are not just inserted for the mere fun of delaying the right of parties to approach the Court, but actually, to ensure that, it is only on last resort that, industrial actions are embarked on, in the interest of sustainable industrial harmony and economic development. I do not also share the arguments of the learned counsel to the claimant that the defendants had no vires to challenge dismissal of their members. They definitely have, but not without conditions precedent to be complied with, if they intend to go on strike. They must exhaust the provisions of sections 4, 6, and 9 of the TDA before they could lawfully proceed on strike or any other form of industrial action.

Industrial unions are established to cater for the industrial rights of workers; and primus in the labour rights of workers, is the right not to be unjustly dismissed – see section 48 of the TDA on the meaning of trade dispute. The workers’ union can definitely protect this by lawful means, which includes bringing actions to challenge same, arbitrating it and lastly embarking on industrial actions to secure the right. The learned counsel to the claimant should be educated that, the era when employers hid under the canopy that, collective agreements could not be enforced, has become part of the dark history of labour rights in Nigeria. With the advent of the Third Alteration Act, the labour legal regime has been transmuted, and one of such indicia of the transmutations brought about, is that, collective agreements are now binding and enforceable, thus, giving labour unions more ambit to protect the rights of their members – see section 254C-(1)(j)(i) of the 1999 Constitution [as altered]. I am also of the view that, the dispute here, relates to trade dispute, contrary to the opinion of the learned counsel to the claimant, to the contrary. The mere fact that, it arises from dismissal, does not make it, ipso facto, a personal injury that, could be challenged, by the dismissed employees alone. Everything depends on the surrounding facts. It could both be breach of contract and industrial disputes at the same time.

I think the real issue is: who should approach the arbitral panel in the instant case, or rather, could the claimant rush to court to stop strikes in spite of the fact that, the action is based on trade disputes. Since the claimant had shown reluctance to take the sacked workers back then, to get the sacked workers back into the claimant, only two options are opened to the defendants – to go on strike or to approach the arbitral panel – see section 6(1) of the TDA. Who has right to do this? Both parties could. The claimant could as well have taken the defendants to the industrial arbitration panel/tribunal, but, it should be borne in mind, the reliefs being claimed here, have amongst them, orders seeking restraint from embarking on strike, and I have held that, it is only this Court that could grant same; making it lawful for the claimant to approach this Court, for the present suit. Therefore, where both are reluctant to approach the industrial arbitration tribunal/panel, as enjoined by the TDA, who is obliged by law or logic to approach the arbitral tribunal/panel? The defendants: of course, because, they are the aggrieved parties, whose members were dismissed, and who could not come to the NICN straight, to ventilate the trade dispute, since the claimant is not threatening lockout or any industrial action, which could make the defendants approach this Court; and the defendants are the ones, who could go on strike, to press home their demands that, the sacked workers be recalled, who then have the duty, not to breach the TDA, before embarking on their most potent weapon, to press home their demand. Whereas, the claimant has the NICN to turn to turn to, prevent unlawful strikes, while the defendants too, also have the NICN to turn to, to prevent unlawful lockouts, by the claimants – see section 254C-(1)(c) of the 1999 Constitution [as altered].

Whether or not strike has been threatened, it is now clear that, the claimant is determined not to accept the sacked workers back, and that, therefore, strike is inevitable, except the defendants approach the arbitral panel or jettison their demands and leave the sacked workers to rue their misfortune. Where would the claimant have rushed to, in the instant case: this Court alone. The arbitral panel has no jurisdiction, I think, to restrain strike, prior to submission to it. Being, an inferior tribunal, it has no inherent powers. Its jurisdiction and powers are strictly limited, as granted by the enabling law, except the defendants are able to show to me that, the arbitral panel has such powers, only then, could I hold that, the claimant ought to have gone to the panel, instead of coming to this Court to restrain strike.

I think, it must be noted that, what sections 4, 6, and 9 of the TDA mandates, are conciliation and arbitration before industrial actions could be lawfully embarked upon, and not really restraint of access to Court. This Court only enforces these provisions because of its mandate to encourage amicable settlement of disputes – see section 20 of the National Industrial Court Act 2006; and the constitutional provisions that makes this Court, the supervisory Court over industrial arbitration tribunals/panels – see section 254C – (1)(c), and the proviso to section 254C – (3) of the 1999 Constitution [as altered].

It follows that, in essence, this suit was rightly commenced in whatever way one looks at it, and that, it did not offend the provisions of the TDA in issue. I have found for both the claimants and the defendants in this suit. It follows that, the claimant must be entitled to some reliefs, because, the maxim is: “ubi jus ubi remedium.” But, I am of the view too, that, while the claimant is entitled to reliefs, she is not entitled to all the reliefs claimed, in that, I have also found for the defendants, in some instances. So, the claimant would only be entitled to the reliefs that deal with restraint of strike, prior to compliance with the mandatory provisions of the TDA; and not blanket restraint of strikes, without limitation, as desired by the claimant. The claimant formulated two questions: (a) & (b), for the determination of this suit; and upon which prisms, the lone issue she submitted and all the arguments of counsel thereto, were examined and determined. The questions must be answered now. I answer question (a) in the affirmative against the claimant, and in favour of the defendants. I answer question (b) in the negative in favour of the claimant, and against the defendants.

I must now conclude this matter by making the necessary orders and granting the necessary reliefs.

CONCLUSION

I conclusion, hold that, the claimant is, therefore, only entitled to reliefs (ii) & (iv), of the reliefs claimed in the suit. I therefore grant the claimant’s reliefs (ii) and (iv) thus:

It is hereby DECLARED that the Defendants cannot, jointly or severally, embark on strike, picketing or any other form of industrial action or otherwise disrupt the operations of the Claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria, without exploring and exhausting the mandatory industrial resolution mechanisms prescribed in sections 4, 6 and 9 of the Trade Disputes Act.

It is hereby ORDERED that, the defendants, either by themselves or through any of their agents, servants or privies should not to embark on strike, picketing or any other form of industrial action to disrupt the operations of the Claimant at any offices of the claimant in Enugu, Anambra, Imo, Abia and Ebonyi States, respectively, of the Federal Republic of Nigeria, without exploring and exhausting the mandatory industrial conflict resolution mechanisms prescribed in sections 4, 6 and 9 of the Trade Disputes Act.

I accordingly refuse reliefs (i) & (iii) of the reliefs claimed by the claimants, to wit:

The issue whether or not the worker in issue, who was dismissed, committed fraud, is not one that calls for determination here and was not submitted for determination by the claimant. In any case, this Court has no original jurisdiction, except with respect to restraining strikes, over industrial or trade disputes. The trade dispute in issue could either be submitted to the industrial arbitration tribunal/panel by the defendants/trade unions, exercising their rights pursuant to the TDA, as I have held above or the dismissal be challenged before this Court, by the individual worker, as breach of contract of employment. I award no cost.

This is the judgment of the Court; and it is entered, accordingly.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA