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National Industrial Court

National Union of Electricity Employees -VS- Senior Staff Association of Electricity And Allied Companies)

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IN THE NATIONAL INDUSTRIAL COURT  OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE (Dr) I. J. ESSIEN

DATE:  21st March, 2019

SUIT NO: NICN/LA/635/2017

BETWEEN

NATIONAL UNION OF ELECTRICITY}

 EMPLOYEES (N.U.E.E)                       ————————– CLAIMANT

AND

  1. SENIOR STAFF ASSOCIATION OF

     ELECTRICITY AND ALLIED

     COMPANIES (SSAEAC)                    ———————–DEFENDANTS

  1. MR CHRIS OKONKWO (President,

    Senior Staff Association of Electricity

    And Allied Companies)

REPRESENTATION;

  1. A Ojogopagogo Esq. with C. Atewe Esq for the claimant
  2. A. Odega Esq. for the defendant.

RULLING/JUDGMENT

The claimant in this suit, a registered trade union by a complaint filed on the 27/12/2017 sought the following reliefs from this court;

  1. A DECLARATION that the 1st defendant being a trade union registered and recognized by law in Nigeria and the 2nd defendant being an officer in the 1st defendant to wit; the President General are bound to obey and observed the doctrine of Projection of Management prescribed by the mandatory provisions of Section 3 (3) of the Trade Unions Act, Cap. T14 Laws of the Federation of Nigeria 2004, (as amended) in admitting employees into membership, allowing such employees to continue their membership, hold offices or continue to hold offices in the 1st defendant.

  1. A DECLARATION that the 2nd defendant recognized as a Projection of Management within the management structure (whether of the Transmission Company of Nigeria (TCN) or any of the successor companies of Power Holding Company of Nigeria(PHCN) is disqualified to represent workers interest in the 1st defendant’s association or any union at all in Nigeria when such membership or of the holding of such office in the 1st defendant will lead to a conflict of his loyalties to either the union or the management and jeopardizes the interest of the claimant.

  1. A DECLARATION that the 2nd defendant ceased to be the President-General of the 1st defendant by operation of law upon the 2nd defendant appointment to the office of the General Manager (AGM) of Transmission Company of Nigeria(TCN) •

  1. A DECLARATION that the appointment of the 2nd defendant to the office of the General Manager ( GM) of Transmission Company of Nigeria (TCN) at its Ojo Stores, sometimes in 2013 with executive authority by his status, authority, powers, duties and accountability makes the 2nd defendant a Projection of Management in Transmission Company of Nigeria (TCN).

  1. AN ORDER of court restraining the defendants from poaching, harassing, intimidating, molesting, intervening or otherwise dealing with the claimant’s union activities and the check off dues paid by claimant’s members.

  1. AN ORDER of perpetual injunction restraining the defendants from contravening the mandatory provisions of Section 3 (3) of the Trade Unions Act, Cap. T14 Laws of the Federation of Nigeria 2004, (as amended) in admitting employees into 1st defendant’s union, allowing such employees to hold office, when such membership or of the holding of such office in the 1st defendant will lead to a conflict of his loyalties to either the union or the management.

  1. AN ORDER of court awarding N4,000,000 (Four Million Naira) only as general damages to the claimant.

Before the hearing of the suit, the defendant filed a motion on notice on the 28/11/18 wherein he prayed the court for the following orders;

  1. i)An order dismissing this suit in its entirety.

 Or IN THE ALTERNATIVE

  1. ii)An order striking out this suit for being incompetent.

The ground upon which the application is predicated are that

  1. The Claimant lacks the requisite locus standi ta institute this action.
  2. The Court is consequently robbed of the necessary jurisdiction to adjudicate on this matter.
  3. There is no reasonable cause of action.
  4. The action as instituted is an abuse of court process.

The application is supported by a six paragraph affidavit deposed to by one Jamiu Issa and also by the written address of the defendant/applicant counsel.

In response to this application, the claimant/respondent filed a counter affidavit on the 15/1/2019. Attached to the affidavit are Exhibit A, B, C, and D.  Also filed along with the counter affidavit is the respondent counsel written address in support of the counter affidavit.

In their written address the defendant applicant counsels raised 4 issues for determination which are;

  1. a)Whether the claimant has the locus standi  to commence this suit against the defendant (see paragraph 4.0  to 4.19 of the written address)
  2. b)Whether this action was commenced in accordance with the laid down procedure that may be followed in section 4(2) of the Trade Dispute Act. (see paragraph 4.14 to 4.21) of the written address)
  3. c)Whether this suit discloses a reasonable cause of action (see paragraph 4.22 to 4.29 of the written address)
  4. d)Whether this action does not amount to the abuse of judicial process (see paragraph 4.30 to 4.42)

In their written submission in support of the counter affidavit the claimant counsel argued the above tabulated issues in response to the submission of the defendant applicant counsel. These issues ordinarily should constitute the issued for determination in this ruling. However of the 4 issues above, issue ‘b’ appears to be the issue that attacks the foundation of this suit and therefore must be considered first. This is so because where there is a challenge by way of motion to the competence of a suit, it invokes the issue of jurisdiction of the court to entertain same. In other words an issue that attacks the foundation of a suit invariably questions the jurisdiction of this court to entertain the suit. It therefore becomes a threshold issue. In the case of Okonkwuo V. INEC [2014] LPELR- 22486 (CA). The Court of Appeal while siting with approval the decision in the case of Unilorin Vs Oluwadare, (2009) 19 WLR, 730 at 733 the Court of Appeal per Nweze held thus:

Jurisdiction is to a court what a gate or door is to a house. That is why the challenge of a court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the court).

To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that he has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper as vigilant as he is always will readily intercept and query all persons who intrude in his domain.

 

The threshold issue as far as this application is concerned is in issue ‘b’ in the list of issues stated above. On this issue the defendant/applicant counsel argues that the dispute in this suit qualify as a trade dispute and for that reason the claimant ought to have complied with the provision of section 4(2) of the Trade Dispute Act CAP T8, LFN 2004. That until compliance with the above stated section of the Act is established,  the claimant cannot invoke the jurisdiction of this court to try this action. Counsel relied on the case of NURTW V. Ogbodo [1998] 2 NWLR (Pt. 537) at 189, and Maritime Workers Union of Nigeria V Nigerian Labour Congress & Ors. – DJNIC (Digest of Judgments of National Industrial Court) page 421.

He argued that the claimant has failed to comply with the statutory laid down procedure for resolving inter union dispute before instituting this suit and as such the claimant has failed to ignite the jurisdiction of this suit. He relied on the case of   A.G. Kwara State V Adeyemo [2017] 1 NWLR (PT. 1546) 210.   Mobil Producing (Nig.) Unltd. V Johnson [201]) 14 NWLR  (PT.1639) 329 at 359, A-B.

In his response as contained in the written address in support of the counter Affidavit.  The claimant counsel argued that the submission of defendants counsel on this issue are issues of fact and as such ought to have been raised in their counter affidavit, That not having done so the defendant cannot argue same in their address. In the alternative, counsel argued that the jurisdiction of the court to try this matter is original as stated in section 254( c)1 (a)and (b) of the 1999 Constitution as amended. He argued that the court has the exclusive jurisdiction to determine civil causes and matters relating to trade union and Trade Union Act. Counsel argued further that by the nature of the reliefs sought by the claimant before this Honourable Court which relates \ to contravention of the Trade Unions Act and misuse of office by a trade unionist in management position against the claimant in the same sector and the claim for injunctive reliefs. He submitted that this is not a trade dispute within the meaning given in the interpretation section of the Trade Dispute Act. Rather it is a matter that falls squarely within the purview the provisions of section 7 (1) (a) (i) &. (c) (iv) of the National Industrial Court Act 2006. That by Section 7 (1) (a) (i) & (c) (h) of the National Industrial Court Act 2006, the claimant can access this honourable court directly. Counsel relied on the ruling of my learned brother Hon. Justice E. A. Orji delivered  on the 10/7/2018  in Suit No NICN/LA/375/2017 in the case of Senior Staff Association Of Electricity And Allied Companies (SSAEAC) V. National Union Of Electricity Employees (NUEE).

Counsel urged the court to follow the above decision and to hold that this court has original jurisdiction to determine matters relating to Trade Unions and Trade Union Act.

DECISION OF THE COURT.

First I must state that some question of non-compliance with the provisions of a law raised in a proceeding may not necessarily be a question of fact as argued by the claimant counsel. In this application the defendant is alleging breach/ non-compliance with the provision of section 3(3) of the Trade Union Act. They have raised this as a preliminary issue, they can raise this as a point of law and can argue same without necessarily alluding to facts in an affidavit. Therefore the objection raise against this issue by the claimant counsel and the authorities cited is without any justification in law and is therefore discountenanced.

The other very fundamental question to be resolved in this issue which resolution would determine whether this suit is properly instituted before this court is whether the dispute between the parties in this suit can properly qualify as a trade dispute. And if it does can the claimant invoke the original jurisdiction of this court without first subjecting the dispute to the dispute resolution procedure as provided in part 1 of the Trade Dispute Act CAP T18 LFN 2004. In this wise it would be necessary to identify the dispute between the parties leading to this suit.

The claimant in his complaint alleges as follows;

1)    That the 2nd defendant’s appointment as ‘General Manager made the 2nd defendant a projection of management and disqualified to be a member, holding office in the first defendant union or any trade union at all, when holding such office will lead to a conflict of his loyalty to the unions and workers interest in the sector. (  paragraph 10)

2)    The 2nd defendant as the General Manager of TCN, a grade level 16 officer sits in management meetings and makes decisions on behalf of-the management of the company and as President of the 1st defendant makes decisions in conflict with other labour unions mostly, the claimant, in the sector. (paragraph 13)

3)    The claimant avers that when the 2nd defendant sits in management  meetings, he sits in dual capacity over claimant’s members as General Manager having the powers to sack, query, suspend etc. and frustrate the activities of the claimant with a view to diminish its members.  (paragraph15)

The above paragraphs constitute the allegations of the claimant against the defendants which the defendant has denied.

The defendant contends that the alleged acts make the 2nd defendant a projection of management in violation of section 3(3) of the Trade Union Act

The question then is whether these can constitute a trade dispute The defendant contention is that these issues qualify as trade dispute and as such the claimant ought to have exhausted the procedure laid down in part 1 of the trade dispute Act before instituting this action. The claimant on the other hand argues to the contrary.

The question is what constitutes a trade dispute. A trade dispute is defined in  section 48 of the Trade Dispute Act as;

Trade dispute means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-emp1oyment, or the terms of employment and physical condition  of  work of any person. 

The provision of 54(4)(c ) of the NIC Act, provides that;

For the avoidance of doubt the following enactments

(a)——————-

(b) ——————–

(c ) Trade Dispute Act

(d)———————–

Shall be construed with such modification as may necessary to bring them into conformity with the provisions of this Act.

It therefore follows that the provision of the Trade Dispute Act must be applied as to bring it in conformity with the NIC Act.

Section 54 of the National Industrial Court Act 2006 defines trade dispute thus;

          ‘Trade Dispute’ means any dispute between employers and employees, 

            including disputes between their respective organisations and federation
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,

(c)   the conclusion or variation of a collective agreement, and

(d)  an alleged disput.

     (underlining for emphasis)

See the case of Oshomole V. FGN [2007]8 NWLR (Pt. 1035) at 58.

The same section 54 defines ‘organisation’ as used above to mean;

‘organisation’ includes a trade union or employers association:

A community reading of the above adumbrated provisions of the law applied to the circumstances of this case show that the claimant and the defendant in this suit are organisation within the contemplation of section 54 of the NIC Act since they are trade unions. It therefore follows that dispute between two labour union which touches on ‘terms of employment and physical condition of work of any person’ would qualify as a trade dispute.

I have earlier in this ruling tabulated the grievances of the claimant that resulted in the institution of this suit. One of the allegations made by the claimant is that

 

 when the 2nd defendant sits in management meetings (as a projection of management), he sits in dual capacity over claimant’s members as General Manager having the powers to sack, query, suspend etc. and frustrate the activities of the claimant with a view to diminish its members. 

The Supreme Court in the case of N.U.E.E V. BPE [2010]7NWLR (Pt1194) at 538 has held that word ‘connected with’ in section 47 (which is impari materia) with section 48 of the Trade Dispute Act CAP T8 LFN 2004, means that the dispute must be connected with employment or non-employment and not a dispute about some entirely different subject matter, non-settlement of which may result in employment or non-employment.

I am strongly of the opinion that an allegation which bothers on apprehension of the 2nd defendant exercising the power to sack query suspend etc, are disputes which are connected with and effect the term of employment and physical condition of work of the claimant members. This irresistibly raises a dispute between the claimant union and the 2nd defendant union which touch on the terms of employment and physical conditions of work of members of the claimant, as long as the 2nd defendant continues to hold the position of President of the 1st defendant which the claimant allege is a violation of section  3(3) of the Trade Union Act.

This court hereby rules that the fact of this case support its being treated as a trade dispute and I so hold. The ruling of my learned brother Hon. Justice E. A. Orji delivered on the 10/7/2018  in Suit No NICN/LA/375/2017 cited above is of persuasive authority to this court since it is a decision of a coordinate court. This court is not bound to follow that decision.

Having held that the disputes between the parties in this suit qualify as a trade dispute, I am therefore unable to agree with the argument of the claimant  counsel that the original jurisdiction of this court as provided in  section 254( c)1 (a)and (b) of the 1999 Constitution as amended and also section 7 (1) (a) (i) &. (c) (iv) of the National Industrial Court Act 2006 can be invoked by the claimant. In other words the claimant in this suit cannot institute this suit directly in this court in view of the provision of section 4(2) of the Trade Dispute Act which stipulates that a trade dispute must first be subjected to the procedure of amicable settlement. This court hereby holds that failure of the claimant to subject this dispute to the procedure stipulated under part 1 of the Trade Dispute Act renders this suit incompetent, the condition precedent to invoking the jurisdiction of this court having not been complied with before the institution of this suit. Accordingly the institution of this suit is pre-mature.  It is accordingly hereby struck-out.

In view of the position taken by the court as stated above, it becomes unnecessary to go ahead to consider the other issues raised in this application, as to do so would amount to embarking on academic exercise which this court would be unwilling to do.

On the whole this application succeeds upon the reason given above.

 Judgment is entered accordingly.

—————————————————-

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)

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