IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: FEBRUARY 6, 2019
SUIT NO. NICN/ABJ/130/2013
BETWEEN
Diamond Bank Plc– Claimant
AND
1. National Union of Banks, Insurance and
Financial Institutions Employees (NUBIFIE)
2. Nigeria Labour Congress
3. Olalekan Adebambo
4. Eniola llesanmi– Defendants
REPRESENTATION
Tochukwu Odo, for the claimant.
Akinwumi Akindele, with Mrs Tundun Akindele for the defendants.
JUDGMENT
1. The claimant had filed this suit in the Abuja Division of this Court on 27th May 2013 by way of a complaint against five defendants; and was heard by the Hon President of the Court (Hon PNICN). On 1st June 2013, the Hon PNICN reassigned and transferred the case to this Court to be heard to conclusion. On 18th September 2013, this Court in a bench ruling struck out the name of the third defendant, leaving the four defendants listed above. By an amended statement of facts dated and filed on 30th September 2013, the claimant seeks the following reliefs from the Court:
(1) A declaration that there is no contract of employment or any privity of contract between Diamond Bank Plc and any of the workers of C & M Exchange Limited, employed by C & M Exchange Limited and posted to work at the Bank as part of their employment in C & M Exchange Limited.
(2) A declaration that there is no trade dispute between the members of the 1st respondent and the claimant within the ambit and purview of the Trade Disputes Act to warrant the picketing of the claimant’s places of business and branch offices in Nigeria by the respondents and their members or to warrant the disruption of the business activities of the claimant in any other manner whatsoever by the said respondents.
(3) A declaration that it is wrongful and unlawful for the respondents by themselves or through their members, servants, agents or privies to take any industrial action against the claimants or to picket any place of work, or premises of the claimant in Nigeria where the claimant conducts the business of banking or any other business or service.
(4) A declaration that the threat by the respondents to disrupt the business activities of the claimant and destroy its corporate integrity by spontaneous and other industrial actions is wrongful and unlawful and contrary to the provisions of the Trade Disputes Act and the Trade Unions Act.
(5) An order of injunction restraining the respondents by themselves, officers, members, servants, agents or privies from picketing, attending at, or near a premises or place where the claimant conducts its banking or other businesses or services for the purpose of influencing, persuading or communicating the claimant’s employees or workers of C & M Exchange Limited deployed to work in the claimant’s branches, to abstain from executing or continuing to perform their lawful duties or obligations to the claimant.
(6) An order of injunction restraining the respondents, their officers, agents and privies from giving any directives, or instructions, or giving any further directives or instructions or passing or implementing any directives or instructions or taking any steps of any kind to instigate persuade, encourage or compel their members, arising from the dispute between C & M Exchange Limited and its workers deployed to carry out duties in the claimant, which may have the effect of disrupting the business of the claimant.
2. Along with the amended statement of facts, the claimant filed the witness statement on oath of Ikenna Enebe (CW1), verifying affidavit of the same witness and copies of documents to be relied upon by the claimant, which were subsequently admitted in evidence during hearing and marked Exhibits C1 to C7.
3. The respondent’s statement of defence is dated and filed on 5th November 2013. Along with the statement of defence, the respondents filed a counterclaim, witness statement on oath of Mohammed Sheik (DW) and copies of documents to be relied upon by the respondents, which documents were subsequently admitted in evidence and marked as Exhibits D1to D20. The respondents’ counterclaim is as follows:
(i) A declaration that the illegal lock-out of 80 out of the counterclaimants’ membersworking as associate staff with the 1st respondent on the 15th of May 2013 by the 1st respondent over union activities is illegal, null and void.
(ii) A declaration that the respondent has no right to obstruct members’ right and freedom to belong and participate in union activities.
(iii) A declaration that the counterclaimants have the right to unionise eligible members of the respondents associated junior staff within the respondent’s employment.
(iv) An order compelling the respondent to rescind its decision for the recall of 80 of its associate staff over union activities and compelling their full salaries and entitlement to be paid to C & M Exchange Limited for onward transmission to the counterclaimants’ members.
(v) An order compelling the respondent to negotiate and produce a condition of service for their junior associate staff in accordance with the labour law and what is obtainable in the industry.
(vi) An order compelling the 2nd respondent to make available to the 1st respondent’s members all their Tax clearances and evidence of NHF/PENSION FUND contribution remittances from 2004 till date.
(vii)In the alternative to paragraph vi above, an order compelling the 2nd respondent to pay cash to the said workers as may be worked out by a qualified accountant being the unremitted tax deductions and NHF/PENSION deductions and statutory contributions due to the said workers to the workers.
4. The claimant’s reply to the statement of defence and defence to counterclaim is dated and filed on 14th February 2014. Along with the reply, the claimant filed the witness statement on oath of Patrick Mbagwu (CW2) and a list of additional documents to be relied upon by the claimant. With leave of Court, the claimant filed an additional statement on oath of Patrick Mbagwu (CW2) and additional documents (Exhibits C8 to C35).
5. On 5th March 2015, the claimant filed a list of further documents to which it attached a video recording to be relied upon by the claimant. The claimant filed along with the video recording, a motion on notice dated 4 March 2015 for leave to file a further document.On 20th January 2016, the claimant filed a motion on notice dated 15th January 2016 to file statement on oath of additional witness. The claimant also filed the statement on oath of the additional witness, Folake Adams (CW3). On the same 20th January 2016, the Court deemed the video recording and the statement on oath of Folake Adams (CW3) as properly filed.
6. At the close of trial, parties starting with the defendants were asked to file their respective written addresses. Because the defendants did not file their final written address as ordered by the Court, the claimant was ordered by the Court to file its final written address first. This it did on 26th October 2018. The defendants’ final written address was then filed on 29th October 2018. The claimant’s reply on points of law was filed on 6th November 2018.
THE CASE OF THE CLAIMANT
7. To the claimant, its case as seen from the pleadings and evidence of the witnesses is as follows:
(a) As a matter of convenience, the claimant does not employ certain cadre of workers, but outsources the provision of such services under a Labour Service Agreement to contractors who send their employees to the claimant to carry out certain duties. The contractor is responsible for the employment, conditions of service, remuneration, discipline, welfare, promotion and disengagement of such workers sent to the claimant (paragraphs 7, 9, 10 and 11 of the statement of claim).
(b) The claimant entered into a Labour Service Agreement with C & M Exchange Limited as the Contractor to provide its workers as support staff to the claimant. The 3rd and 4th defendants are employees of the Contractor deployed to work for the claimant; and the Chairman and Secretary respectively of the Contractor’s employees deployed to the claimant who are members of the 1st respondent (paras. 8, 12, 13 and Exhibits C1,C2 and C3).
(c) Sometime in 2013, the claimant became aware that the employees of the Contractor working with the claimant were complaining about their NHF and Pensions deductions by the Contractor. On 15th April 2013, the employees of the Contractor working with the claimant embarked on a riot and disrupted the services of the claimant to its customers at its head office and branch offices. This caused the claimant huge losses and embarrassment (paras. 14, 15, 17 and 23).
(d) Pursuant to the claimant’s agreement with the Contractor, on 17th May 2013, the claimant demanded that the Contractor recall its employees who were involved in the riot and disruption of work. Notwithstanding the demand for their recall, the workers continued to go to their work locations in the claimant’s branches and interfere with the claimant’s operations (paras. 18 & 19).
(e) By letters dated 17th May 2013 and 20th May 2013 signed by the 4th defendant, the 1st respondent wrote to the claimant and threatened to embark on actions that would be adverse to the claimant and informed the Manager that they would lock up all the branches of the claimant nationwide (paras. 20, 21, 22 & 24).
(f) Whatever problems the members of the 1st respondent have, is with the Contractor their employer and they should not threaten the operations of the claimant. The claimant has no contract of employment or any contract at all with the employees of the Contractor and members of the 1st respondent; and has done nothing wrong or breached any contract or law to warrant the 1st and 2nd respondent declaring a trade dispute against it (paras. 23 and 25).
(g) The main issue in dispute is between the Contractor and its employees deployed to the claimant and relates to the Contractor’s remittance of the employees’ NHF and pensions deductions. The claimant has no hand in these issues, but has always been willing to assist the said employees of the Contractor working with it to resolve their issues. The actions of the respondents if allowed to continue will cause incalculable embarrassment and loss to the claimant (paras. 26, 27 and 29).
(h) On 28th May 2013 and 7th June 2013, the Court made an interim order restraining the respondents from picketing the claimant’s places of work pending the determination of the motion on notice for interlocutory injunction. During the subsistence of the interim order, the respondents by a letter dated 21st June 2013 threatened to use force to make the claimant take back its members (paras. 12, 13 and 16 of the reply to statement of defence).
(i) On 10th July 2013, the members of the 1st defendant led by the 3rd and 4th defendants picketed the claimant’s branches. They locked the entrance gates of the claimant’s offices and branches in Lagos, Abuja, Port Harcourt and other states; and assaulted and chased away the staff of the claimant found in the claimant’s premises they seized. Even after the Police intervened and stopped the rampage on the first day, on 11th July 2013, the members of the 1st respondent continued their violent acts of assault and closing down the bank (paras. 17, 18, 19, 20, 21, 22, 24 and 25 of the reply and Exhibit C35).
THE CASE OF THE DEFENDANTS
8. The 1st defendant as a trade union derives its membership from people working in Banks, Insurance and other Financial Institutions. The statutory function of the 1st defendant is derived from the Trade Unions Act as the only body that negotiates for and on behalf of all the unionized workers of the junior cadre in the said industry. Contrary to paragraph 10 of the statement of facts, whilst it is true that the then 3rd defendant remained responsible for amongst other things, the training, wages/allowances, promotion, discipline and conditions of service of the 1st defendant’s members, the members as Associate workers of the claimant were also directly trained, paid and engaged by the claimant despite the said agreement with C & M Exchange Limited. A case in point is the Health Scheme for the associate staff the claimant. Memorandum of November 12, 2007 (Exhibit D1) was relied upon. The 1st defendant’s members, some of which are drivers, were trained as spy police at the instance of the claimant, and their letters of training, deployments and payments were issued directly by the claimant and not the C & M Exchange Limited, relying on the letter dated December 16, 2008 (Exhibit D2). Sometime in 2010, when the claimant carried out a reengineering exercise that affected their members, in compliance with the collective agreement in the finance industry at that time, the 1st defendant was invited to negotiate on behalf of its members and a binding agreement was reached. The 1st defendant relied on the said agreement dated 18th June 2010 (Exhibit D3). All the 1st defendant’s members with the claimant carry the Diamond Bank’s identity card, two of such cards were relied upon as Exhibit D4. Following series of industrial actions embarked upon by the 1st and 2nd defendants to protest the de-unionization and casualization of junior workers in the banking industry, a truce was reached in 2004 and 2006. The agreement signed at the end of the mediatory meeting with the representatives of the Nigeria Labour Congress, Managements of Banks, the Federal Ministry of Labour and Productivity on Anti-Labour Practices clearly recognised and authorised NUBIFIE and ASSBIFI as the appropriate unions to organise employees in the banking industry. Mr Jane Topgba (OM – Legal) represented Diamond Bank at that meeting in 2006. Mr Augustine Agwaroyi HCM Department and A. Chike Okogwai, HCM Manager were also in attendance. The 1st and 2nd defendants relied on the agreement of 2nd March 2004 and of 14th March 2006 (Exhibit D5).
9. The case of the defendants seen from the statement of defence and the evidence of DW is thus as follows:
(i) The claimant actually employed most members of the 1st respondent in their employment and have been circulating them amongst various outsourcing companies; and C & M Exchange Limited (the Contractor) did not employ the members, but they were transferred to them. The claimant has again transferred the members of the 1st defendant to another company.
(ii) Under the agreement between the claimant and C & M Exchange Limited, the Contractor remained responsible for inter alia, the training, wages/allowances, promotion, discipline and conditions of service of the 1st defendant’s members;but the claimant also trained, paid and engaged their members (paragraphs 7, 8 and 9 of the statement of defence).
(iii) The 1st defendant, on behalf of its members agitated for issues of career path, conditions of service, overtime allowance, shoe allowance, medical, non-accident bonus, tax clearance, NHF/Pension funds, termination and dismissal matters. The negotiation for these matters was structured and directly carried out by the claimant with the 1st defendant and the Contractor (paras. 11, 12, 13 and 14).
(iv) The 1st defendant and its authorized representatives have been trying for years to engage the claimant in respect of the demands of the workers and have written many letters to the Contractor and the claimant. The 1st defendant also wrote to the Contractor to deal with the demands of the workers within 7 days or face industrial action (paras. 15, 16, 17, and Exhibits D15, D16 and D17).
(v) On 14th May 2013, the claimant met with the 1st defendant and the Contractor and a Memorandum of Understanding drawn up between the Contractor and the 1st defendant in the presence of the claimant, but the claimant refused to sign the MOU. The claimant retrieved their keys from the members of the 1st defendant who were drivers and prevented them from entering the staff bus; 80 members of the 1st defendant were locked out of their places of work in the claimant as a result of which they started to protest. The Police then intervened (paras. 17(v), 18, 19, 20,21 and 22).
(vi) The 1st defendant wrote to the claimant to implement the MOU and advised against victimization of its members. The claimant ordered the return of 80 of their associate staff back to the Contractor in order to avoid the MOU and ensure that the union does not thrive in its employment.
(vii)The 1st defendant has no plan to picket the claimant as a result of any dispute the employees of the Contractor deployed to work with the claimant have with the Contractor. The complaint of the 1st defendant is about the illegal locking out of its members over trade union activities.
THE SUBMISSIONS OF THE CLAIMANT
10. The claimant submitted two issues for determination, namely:
(1) Whether in the absence of a trade dispute between the claimant and the defendants, it was not unlawful for the defendants to picket the claimant’s branches in the manner they did on 10 July 2013 and 11 July 2013.
(2) Whether in the circumstances of this case the claimant is entitled to the reliefs sought by the claimant in this suit and to an order dismissing the defendants’ counterclaim.
11. On issue (1), the claimantsubmitted that its cause of action at the time of filing this suit was the 1st defendant’s threat to embark on industrial action against the claimant and to picket the branches of the claimant, referring to paragraphs 15, 17, 18, 19, 20, 22 and 24 of the amended statement of facts. That in the course of proceedings in this suit and in disobedience to the order of Court to the contrary, the defendants carried through their threats to picket the claimant on 10th July 2013 and 11th July 2013, citing paragraphs 10, 12, 13, 14, 16, 17,18,19,20,21,22,24 and 25 of the reply to the statement of defence. That in proof of its case, the three witnesses of the claimant gave evidence of the defendants’ violent acts of picketing the claimant’s branches on 10th July 2013 and 11th July 2013.That the defendants in paragraph 21 of the statement of defence actually admitted that their members rioted at the claimant’s head office but tried to lighten it by calling their actions a “spontaneous protest of singing solidarity songs”. That apart from the general traverse in paragraph 2 of the statement of defence, the defendants did not deny any allegation of riot and threat to picket made by the claimant. That this amounts to an admission, citingCBN v. Interstella Communications Ltd[2017] LPELR-43940(SC),Richard Akanmode v. First Bank of Nigeria Plc[2018] LPELR-44456(CA) andAlhaji Sani Abubakar Danladi v. Barr. Nasiru Audu Dangiri &ors (2014) LPELR-24020(SC). That the defendants stated in paragraphs 28 and 29 of the statement of defence that they do not intend to picket the claimant because of their problem with the Contractor, but because of the locking out of their members by the claimant.
12. To the claimant, the central issue is whether the defendants have the right to picket the claimant’s work places in the manner that they did.That the answer is no. That the right of trade unions such as the 1st defendant to picket is provided for in section 43 of the Trade Unions Act (TUA) LFN 2004 as follows:
(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or registered federation of trade unions or of anindividual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.
(2) Accordingly, the doing of anything declared by subsection (l) of this section to be lawful shall not constitute an offence under any law in force in Nigeria or any part thereof, and in particular shall not constitute an offence under section 366 of the Criminal Code or any corresponding enactment in force in any part of Nigeria.
That from the section 43(2) of the Act above, regardless of right to picket, the law declares that it must be peaceful in order to be lawful. That once it falls short of “peacefully obtaining or communicating information or of peacefully persuading”, it falls outside the ambit of the law and must be sanctioned.
13. The claimant went on that section 44 of the TUA demonstrates the mandatory nature of the requirement of peacefulness in picketing in the following words:
(1)An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on anyone or more of the following grounds only, that is to say –
(a) No person shall subject any other person to any kind of constraint or restriction of his personal freedom in the course of persuasion;
(b) No trade union or registered Federation of Trade Unions or any member thereof shall in the course of any strike action compel any person who is not a member of its union to join any strike or in any manner whatsoever, prevent aircrafts from flying or obstruct public highways, institutions or premises of any kind of the purposes of giving effect to the strike.
(c) That it consists in his threatening that a contract of employment (whether one to which he is a party or not) will be broken; or
(d) That it consists in his threatening that he will induce some other person to break a contract of employment to which that other person is a party.
(2)Nothing in subsection (1) of this section shall prevent an act done in contemplation or furtherance of a trade dispute from being actionable in tort on any ground not mentioned in that subsection.
14. To the claimant, the law is that when a statute prescribes a method of performing an act or a certain mode of doing something, then only that method and no other must be employed in the performance of that act, citingBernard Amasike v. The Registrar General, Corporate Affairs Commission &anor[2010] LPELR–456(SC) andCapt. Eno Utum Inah (Rtd.) &anor v. Mr Eteng Jonah Williams &ors[2016] LPELR-40128(CA).That there is unchallenged evidence in the statement on oath and evidence of the claimant’s witnesses as to the 1st defendant’s threats of embarking on riot and strike action, to use force to put its members back to work, and of breaking into the claimant’s contact centre; which pieces of evidence establish the defendants’ acts of violence and not peaceful methods of certainly not persuading, but coercing the claimant into accepting and complying with the demands of the 1st defendant. That the defendants’ acts and picketing of the claimant’s offices was unlawful, actionable and liable to sanctions, and thus entitles the claimant to the reliefs sought in this suit. That the rights of the defendants to assemble belong to a union and picket is subject to the rights of the claimant and its staff to their personal liberty, freedom of movement and also not to belong to the defendants’ union without restraint, citingAdvertising Practitioners Council of Nigeria (APCON) v. The Registered Trustees of International Covenant Ministerial Council (ICMC) &ors[2010] LPELR-3630(CA) andOsawe v. Registered Trade Unions[1985] 1 NWLR (Pt. 4) 755;[1985] LPELR-2792(SC).
15. Continuing on the defendants’ right to picket the claimant’s offices, the claimant submitted that under section 43 of the TUA, the only reason or ground for a trade union to picket is when it is done in contemplation or furtherance of a trade dispute. That to ascertain whether the defendants had the right to picket the claimant, it is necessary to determine whether their action was in contemplation or furtherance of a trade dispute. That atrade dispute is defined in section 48 of the Trade Disputes Act (TDA) and section 54 of the TUA as follows: “Trade dispute means 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”. (Bracket supplied as word in bracket not in the TUA.) For the interpretation of this provision, the claimant referred toNational Union of Electricity Employees &anor v. Bureau of Public Enterprises[2010] LPELR-1966(SC); [2010] 7 NWLR (Pt. 1194) 538 and NURTW v. Ogbodo & ors [1998] 2 NWLR (Pt. 537) 189. Given the conceptions of worker and contract of employment, citing section 54 of the TUA and Shena Security Company Ltd v. Afropak Nigeria Ltd &ors[2008] LPELR-3052(SC); [2008] 18 NWLR (Pt. 1118) 77; [2008] 4-5 SC (Pt. II) 117, the claimant submitted that one thing is constant i.e. the element of agreement and contract between the employer and the employee. Whether oral or written, that the employer must agree to employ and the worker must agree to serve the employer as a worker. To the claimant, the effect of the foregoing is that for the defendants to have a right to picket the claimant:
(a) The picketing must be in contemplation or in furtherance of a trade dispute;
(b) For there to be a trade dispute between the claimant and the defendants, the members of the 1st defendant must be the workers of the claimant;
(c) For the members of the 1st defendant to be the workers of the claimant, there must be a contract or an agreement oral or written between the members of the 1st defendant and the claimant.
16. The claimant the asked whether it can be said from the pleadings, exhibits and evidence led that there is an agreement or contract between the members of the 1st defendant and the claimant, and answered in the negative, referring to Exhibit C1, the Labour Service Agreement between the claimant and C & M Exchange Limited, under which and at all times material, the workers of the Contractor remained under the management and total control and care of the Contractor;the said workers of the Contractor having no contractual link whatsoever with the claimant. That the defendants did not deny this fact. In fact, that the defendants in paragraph 7 of the statement of defence admitted that it is true that the Contractor remained responsible for among other things the training, wages/allowances, promotion, discipline and conditions of service of the 1st defendant’s members deployed to work in the claimant. That parties are bound by the conditions and terms in a contract they freely enter into, citing Northern Assurance Co. Ltd. v. Wuraola[1969] NSCC 22 andUnited Bank for Africa v. Europhina Nigeria Limited[1991] 12 NWLR (Pt. 176) 677. That where there is a contract regulating any arrangement between parties, the main duty of the Court is to interpret that contract and to give effect to the wishes of the parties as expressed in the contract document, citing Oduye v. Nigerian Airways Limited[1987] 2 NWLR (Pt. 55) 126. That the claimant has confirmed by Exhibits C8 to C19 (the letters of appointment, deployment, termination of appointment and request for exit entitlements) that the members of the 1st defendant employed and deployed by the Contractor remain under the control and management of the Contractor, who has the sole right to hire or fire them; and Exhibit C20, the identity card of the workers, also show at the reverse side of the cards that they were issued by the Contractor and must be returned to the Contractor if lost and found.Exhibits C21 to C25A, the salary invoice of the Contractor, show that the salaries of the deployed workers were still remitted through the Contractor even up till August 2013 after this suit was filed. To the claimant then, it has established by substantial evidence that there is no contract of employment or any contractual relationship at all between it and the members of the 1st defendant employed by the Contractor and deployed to work in the claimant, urging the Court to hold that the defendants do not qualify as workers of the claimant to entitle them to have a trade dispute with and consequently picket the claimant’s offices, citing National Union of Electricity Employees & Anor, v. Bureau of Public Enterprises (supra).
17. The claimant went on that in labour relations and contractual agreements, privity exists between parties to the agreement. That in this case privity lies between the Contractor/Employer, C & M Exchange Limited, and the workers, the members of the 1st defendant, and not between them and the claimant (a mere user enterprise) who had contracted the Contractor, citingOnumalobi v NNPC[1991] 12 NWLR (Pt. 632) at 639. For this reason, that the workers who are employees of C & M Exchange Ltd ab initio had no cause of action against the claimant. That the cause of action of the members of the 1st defendant lies against the Contractor with whom they have privitv of contract. That it follows by reasonable stretch of analogy that the act of picketing/demonstration done in the claimants’ place of business was misdirected and consequently unlawful, citing NUPPW v. Management of Wahum Packages Nig. Ltd[1983] DJNIC 121, which held trade union officials attempting to enter an employer’s premises without any trade dispute to be an unlawful act of picketing. Therefore, that there must be a trade dispute between the parties for picketing to be lawful. In the current case, that there is no such dispute between the claimant and the workers of C & M Exchange Ltd. That the 1st defendant created a fictional trade dispute to facilitate its demonstration activities on the claimant’s premises.
18. To the claimant, whenever there is a triangular relationship between an employer (in this case a labour contractor, C & M Exchange Ltd.), a user enterprise (the claimant) and the contract staff (the 1st defendant’s members), liability for the contract staff’s work-related matters never goes to the user enterprise but to the employer/Contractor. That this is the position both under common law and statute, citingChukwu v Unegbu[1993] 7 WELR 2009,Francis Dola v. Cecilia John[1977] NMLR 14 and Shell Petroleum v. Nwaka[2004] 1 NWLR 400 at 420. That the issue whether or not the dispute is connected with the employment or non-employment or terms of employment and physical condition of work does not arise once it has been established that there is no contractual relationship or contract of employment between the members of the 1st defendant and the claimant. The claimant the urged the Court to resolve issue (1) in favour of the claimant and to hold that there was no trade dispute between the claimant and the defendants; and so the defendants’ picketing of the claimant’s offices on 10th and 11th July 2013 was unlawful.
19. Issue (2) is whether the claimant is entitled to the reliefs it seeks and to an order dismissing the defendants’ counterclaim. To the claimant, it had established under issue 1 that the defendants’ picketing of the claimant’s offices and branches was violent contrary to sections 43 and 44 of the TUA. That the claimant also showed that there is no trade dispute between the claimant and the defendants as contemplated under section 48 of the TDA. The claimant then asked: what is the effect of the violent and unlawful picketing carried out by the defendants? In answer, the claimant referred to section 44(1)(a)-(d) of the TUA, which sets out the things a trade union must not do while picketing. That the claimant led evidence to show that the defendants defaulted on all the DON’Ts in section 44(1) of the TUA; and thatsection 44(2) of the TUA makes it actionable in tort for the defendants to carry out the unlawful acts. That the reliefs sought by the claimant are for declaration and injunction. That the law is that an injunctive relief is designed to give effect and force to successful claims for declarations, citingAlheri Garba Zira &anor v. Elisha Vandu &ors[2017] LPELR-42994(CA). That the claimant led substantial evidence in proof of the declaratory reliefs sought and is, therefore, entitled to the grant of the order of injunction sought in this suit, which injunctive reliefs are to protect the claimant’s right to its business and to restrain the defendants from disrupting the business of the claimant, citingAzuh v. Union Bank Plc[2014] LPELR-22913(SC),Akapo v. Hakeem-Habeeb[1992] 1 SCNJ 29 andUniversal Trust Bank Ltd. &ors v. Dolmetsch Pharmacy (Nig.) Ltd[2007] 6 SC (Pt. I) 1; [2007] 16 NWLR (Pt. 106) 520.
20. The claimant went on that the defendants’ counterclaim is for various declarations that the claimant’s lock-out of their members over union matters is unlawful; that the claimant has no right to obstruct their members’ rights to participate in union activities; and that the defendants have the right to unionize. That the defendants also sought an order compelling the claimant to rescind its decision for the recall of its 80 members and to pay their salaries to the contractor for onward transmission to the workers; and an order compelling the claimant to negotiate and produce conditions of service for their junior staff. That in proof of their counterclaim, the defendants’ main claim against the claimant is its inference in paragraphs 5 and 6 of the statement of defence that the claimant actually employed most members of the 1st defendant and have been circulating them amongst various outsourcing companies. That the defendants seem to have abandoned this aspect of their claim as there is no evidence of the said facts in the statement on oath of the defendants’ witness, Mohammed Sheik. That the law is that facts pleaded on which no evidence is given are deemed abandoned, citing Nze Jeremiah Osigwelem v. Independence National Electoral Commission [2010] LPELR-4657(CA),Adighije v. Nwaogu[2009] 2 NWLR (Pt. 1125) 237 and Kuti v. Alashe[2005] 17 NWLR (Pt. 955) at 15. That the defendants did not tender any documentary evidence of their claim to be employees of the claimant. That while the defendants tendered Exhibit D4, identity cards of C & M Exchange, as proof of their employment with the claimant,they did not tender any appointment letters or letters of employment from the claimant. That the defendants even contradicted themselves by confirming in many paragraphs that their members are under the management and control of C & M Exchange Limited.
21. To the claimant, pursuant to the ILO Private Employment Agencies Convention (No. 181) of 1997, the claimant in this case is a User Enterprise, while C & M Exchange Ltd is a Private Employment Agency and the employer of the workers, the members of the 1st defendant deployed to the claimant.Article l(b) of the ILO Private Employment Agency Convention provides as follows:
For the purpose of this Convention the term [private employment agency] means any natural or legal person, independent of the public authorities, which provides one or more of the following labour market services:
(b) Services consisting of employing workers with a view to making them available to a third party, who may be a natural or legal person referred to below as a “user enterprise” which assigns their tasks and supervises the execution of these tasks.
That the contract for outsourcing between the claimant and the Contractor, in and of itself, is not abhorrent. That it is a recognized international practice by ILO which allows corporate organizations to focus on their area of core competence;it does not however create an agency relationship between the claimant (the User Enterprise) and the Contractor, C & M Exchange Ltd (the Private Employment Agency) as the defendants have inferred.
22. On the defendants’ counter-claim (iv), which seeks an order of this Court compelling the claimant to pay the full salaries of the recalled workers to C & M Exchange for transmission to the workers,the claimant submitted that this is an admission that the workers are the employees of C & M Exchange Limited and not the claimant. That the material contradictions in the defendants’ case is fatal to his case, citingHon. Bassey Etim v. Hon. Bassey Albert Akpan &ors[2018] LPELR-44904(SC). That the claimant on the other hand tendered Exhibits C2, C3, C8-C14, which are the employment and deployment letters by the Contractor by which it employed the defendants and their members.
23. As regards the defendants’ claim that they have the right to unionise eligible members and that the claimant had no right to obstruct their members’ right and freedom to participate in union activities, the claimant submitted that the defendants did not give any cogent evidence of how the claimant has obstructed its members from unionizing.That the claimant pleaded in paragraphs 21, 22 and 27 of the statement of facts and gave evidence that it has not prevented the members of the 1st defendant in any way from union activities. That the claimant by documents tendered has shown its willingness to assist the defendants in arriving at a just solution of their demands from the Contractor. That even the Contractor in Exhibit C27, its letter to the claimant in which the 1st and 3rd defendants were copied, stated the various efforts made by the Contractor to resolve the various issues raised by the defendants. The Contractor in the last paragraph of the letter advised the defendants to write a letter of apology to the claimant for their attitude towards the claimant as the claimant had always met their obligations towards the defendants.
24. Furthermore, that the defendants’ counterclaim relate to the claimant’s obstruction of their rights to participate in union activities and refusal to recognize the rights of the junior workers to belong to the 1st defendant. To the claimant, the defendants’ counterclaim relate to issues of trade dispute which does not exist between the claimant and the defendants. Also, that this Court does not have the original jurisdiction to entertain the defendants’ counterclaim, which pertains to their right to unionise which is a trade dispute matter, citingsection 2(1) of the TDA LFN2004, which provides as follows: “Subject to the provisions of subsection (3) of section 21 of this 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”. The claimant referred to Chevron Nigeria Limited v. National Union of Petroleum and Gas Workers (NUPENG) &anor unreported Suit No. NIC/LA/37/2010, the judgment of which was delivered on 2nd December 2013, where this Court held as follows:
The claimant argued that there is no trade dispute between the parties. The 1st defendant did not seem to think so, hence its first issue is “whether the claimant and the 2nd defendantcan refuse to recognize the workers of the 2nd defendant working for or seconded to work for and in the claimant’s company the right of membership of the 1st defendant”. The 1st defendant would later in paragraph 3.1.4 of its written address argue that this recognition issue is a trade dispute for which the Court has no original jurisdiction to entertain, calling on the Court to decline jurisdiction in respect of the whole case of the claimant. While I agree with the 1st defendant that this issue sufficiently qualifies as a trade dispute for which its determination must necessarily go through the dispute resolution process of Part I of the TDA before it can be entertained by this Court (see Nestoil Plc v. National Union of Petroleum and Natural Gas Workers unreported Suit No. NIC/LA/08/2010 the judgment of which was delivered on March 8, 2012), that alone is not sufficient for the whole case of the claimant to be dismissed since the primary issue before the case (sic) is the legality or otherwise of the industrial action complained of. In consequence, all arguments in regard to the recognition dispute are hereby discountenanced for purposes of this judgment.
25. To the claimant, what the claimant approached this Court with is the legality or otherwise of the defendants’ violent picketing of the claimant’s offices on 10th and 11th July 2013. That even though the defendants have not placed before the Court sufficient evidence in proof of their counterclaim, this Court lacks the jurisdiction, in the absence of prior submission to conciliation and arbitration, to entertain the defendants’ claim.Furthermore, that on Chevron v. NUPENG relied upon above, there is need to refer to an issue raised by the Court in the judgment relating to whether there was a contract of employment between the parties. That the Court declined jurisdiction to entertain the issue of existence of contract of employment except to the extent that the issue is necessary in determining the legality or otherwise of the industrial action. That all the arguments of the claimant regarding its issue (1) in the instant case as to the existence of a contract of employment and as to who is the actual employer of the defendants were all aimed at establishing the legality or otherwise of the defendants’ act of picketing the claimant. That the claimant argued and established that the defendants were not workers of the claimant for the sole reason of proving that the defendants had no right to picket the claimant’s offices and that the violent picketing carried out by the defendants was unlawful. The claimant concluded by urging that issue (2) be resolved in its favour and that all its reliefs be granted and the counterclaim dismissed.
THE SUBMISSIONS OF THE DEFENDANTS
26. The defendants submitted five issues for determination, namely:
(i) Given the circumstance of the employment of the 1st defendant’s unionized members in the employment of the claimant, whether the said members have a right of picketing or strike at their workplace.
(ii) Whether in any event the claims of the claimant is not frivolous and liable to be struck out.
(iii) Whether the suit of the claimant is not liable to be struck out being a trade disputewhen the condition precedent for the invocation of the jurisdiction of this Honourable Court is yet to be satisfied.
(iv) Whether the sacking of 80 out of the counterclaimants’ members working as Associate staff with the 1st defendant on the 15th of May 2013 over trade union activities is not premature, illegal, null and void.
(v) If the sacking of 1st defendant’s members for trade union activities is illegal, whether the sackedworkers are entitled to their salaries payable by the claimant to C & M Exchange Limited for onward transfer & direct payment to the 1st defendant’s members from the 15th of May 2013 till judgment is given with interest.
27. The defendants argued issues (1), (ii) and (iii) together. To the defendants, there is ample evidence before this Court that the defendants’ members are outsourced workers some of whom had worked for over 20 years with the claimant. That ‘outsourcing’ is a growing, cost-cutting business tool that many organisations are eager to key into;organisations are increasingly adopting recruitment using outsourcing as measure and to improve competitiveness. That ‘outsourcing’ itself has been defined as the transfer of aspects of management or day-to-day execution of business to a service provider. In labour context, it is a situation whereby an organisation hires its workforce through a third party, also referred to as a “labour contractor”. That in Nigeria, outsourcing has raised concern over the protection of workers; by law, workers are supposed to be entitled to all the rights guaranteed by national law and international best practices. Precisely, that workers have the right to form and join trade unions, enjoy protection against discrimination, be guaranteed work safety and health, adequate remuneration, access to training, maternity rights and benefits, minimum age provisions, rest period, holiday with pay (annual leave), right to redundancy entitlements, etc.
28. The defendants went on that it is effulgent from the facts of this case that the main intention of the claimant is to deny the 1st defendant’s members the right to be unionized by harassing them out of its employment. That it is in evidence that whilst a meeting was going on within the premises of the claimant, the claimant was busy shutting the 1st defendant’s members out and refusing the drivers entrance into their official vehicles. That this was the issue that precipitated the spontaneous protest that birthed this suit.That the video evidence brought could not be related to the defendants, the person identified as a 1st defendant’s member by the claimant’s witness was asked to stand-up and the witness denied that he was the one. That the video could well be a recording on an event totally unrelated to the activities of the defendants; nothing in it, was shown to the Court to refer to the defendants and none of the 1st defendant’s members was identified in the video. That the law is trite that he who asserts must proof. That the claimant failed to establish anything with this video.
29. Also, that the attempt to link up CW3 to Exhibits C33 and C33A failed because the claimant could not establish that the hand of CW3 is the same hand in the photograph in Exhibits C33 and C33A. That the claimant also failed to disclose that there was a criminal case against the supposed picketers that was dismissed by a competent court after trial. That the act of violent picketing is beyond the adjudication of this Court. It is a criminal act that was dealt with elsewhere, and this Court cannot, therefore, pronounce on it. If there was a criminal invasion of the claimant’s premises, the Police and a Court having criminal jurisdiction are the proper institutions to investigate and try the offenders, not the National Industrial Court (NIC).
30. The defendants continued that section 40 of the 1999 Constitution guarantees the right to Freedom of Association. The section provides that “every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests”. That the ILO Convention on the Freedom of Association and Protection of the Right to Organise No. 87 and the ILO Convention on the Right to Organise and Collective Bargaining, both of which have been ratified by Nigerian government, guarantees workers right to form and join a trade union and bargain collectively. To the defendants, this Court held in Patovilki Industrial Planners v. National Union of Hotels and Personal Services Workers Suit No. NIC/12/89 reported in the Digest of Judgments of National Industrial Court[1978 – 2006] at 288-289 that the denial of workers of the right to join a trade unionon the ground that they are temporary staff is unconstitutional. Thus, denying workers these rights is a clear contravention of the 1999 Constitution and the ILO standards. That workers, whether permanent or temporary, have the right to organise and bargain collectively. This is because the TUA, which is the law regulating the formation and membership of trade unions in Nigeria accommodates both permanent or temporary staff/casual. That section 1(l) of the TUA defines a trade union as “…combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers…”
31. To the defendants, they testified as follows “That the 1st and 2nd defendant avers that in labour movements’ worldwide, agitation is a tool of formal protest in order to achieve social changes orhigher pay. The 1st defendant in its quest to ensure that the productive life of its member is not used up working for the Claimant with nothing to show for it at their old age, agitated for issues of career Path, condition of service, overtime allowance, shoe allowance, medical, non-accident bonus, Tax clearance, NHFI Pension Funds, Termination and Dismissal matters. The negotiations for these matters are structured and directly carried out by Diamond Bank Management with the 1st and 3rdDefendants”. That the defendant is yet to deny or traverse this piece of evidence andDW equally testified that:
Without intervention of the 1st and 2nd defendants, it is possible for employers of labour to leave workers on the same salary and allowances for decades without review, cheat and maltreat their employees with impunity and even reduce allowances payable under terrible and hostile working conditions. The statutory duties of the 1st and 2nd defendants is to agitate for improved working conditions for the workers. This is internationally recognized as the responsibility of trade unions. The 1stdefendant in her duties to her members continually engages employers of labour in the Banks, Insurance and Financial Institutions in meaningful dialogue to improve the lot of workers.
That the correct position of things was that what was obtainable in the Claimant organisation at all times material was that a new entrant to the services of the company through the C & M Exchange Limited will be on the same salary, allowance and entitlement from day one with a staff that had been in service for over 15 years. It was the agitation of the 1st defendant that led to the Claimant’s ‘ASSOCIATE STAFF SALARY REVIEW AND CAREER PATH’. A memo addressed to the Associate Staff to explain the workings of the Career path was also attached. Regrettably, the only issue that was addressed in this document is the harmonization of the differentials in the grading and salaries of those on the same function that have been in the system and new entrants in relation to hierarchy of engagement. Other than the scale introduced, all other issues were left untouched.
32. That towards the actualization of the objectives, of seeking improved conditions for her members in the employment of the claimant/C&M Exchange Limited, and in recognition of international best practice in such agitations, the 1st defendant and her authorized representatives for years have been trying to engage the claimant in respect of the demands of the workers. Towards this effect the following letters have been dispatched to the C & M Exchange Limited and the claimant:
i) Exhibit D9-Letters dated 2nd October 2008 on condition of service, grading of staff, staff loan and medical allowances.
ii) Exhibit D10-Letter dated 26th November 2008, on the same issues upgraded to include NSIF/PENSION, NHF, and Tax clearance.
iii) Exhibit D11-Letter dated May 12, 2009 on Implementation of resolutions. This letter was written when the claimant did not implement the resolutions reached on the discussed issues.
iv) The 1stdefendant again, in accordance with International Best Practice as agreed in International Labour Organisation congresses again on 5th of September 2009 wrote another letter to the claimant on the restlessness of the workers due to the apathy of the C & M Exchange Limited ably backed up by the claimant in implementing the agreed welfare package of the workers (Exhibit D12). As referred to above it was the agitations of the 1st defendant on behalf of its members that led to the release of the Career Path for Associate Staff of the claimant by the claimant (Exhibit D1).
vi) The other issues in relation to the position of NHF and pension of workers, tax clearance, condition of service, and career path are still outstanding.
That it was when all these failed that the threat of picketing was resorted to; which in the mind of the claimant is illegal.However, by the combined effect of the provisions of sections 43 and 44 of the TUA peaceful picketing is not unlawful when it is in furtherance of a trade dispute as in the instant case, urging the Court to so hold.
33. The defendants went on that the requirement for strike notice is contained in section 42(1) of the TDA 2004, which section makes it an offence if any worker ceases whether alone or in combination with others to perform the work which he is employed to perform without giving his employer at least fifteen days’ notice of his intention to do so in circumstances involving danger to persons or property. That the obligation to give prior notice to the employer before calling a strike is consistent with international labour standards;the period of notice serves as a cooling-off period. It is designed to provide a period of reflection, which may enable both parties to come once again to the bargaining table and possibly reach an agreement without having recourse to a strike. That in practice, when an employer receives a strike notice he may either compromise with the union or report the dispute in writing to the Minister of Labour in accordance with section 6 of the Act. That the Minister will normally take appropriate steps to resolve the dispute such as appointing a conciliator or referring the dispute to the Industrial Arbitration Panel (IAP) or a board of inquiry or the NIC for the purpose of effecting a settlement of the dispute. The defendants then asked how the sending of a strike notice can said to be wrong or illegal. That the 1st defendant in agitating for peaceful resolution of this issue apart from the letter of February 20, 2013 also sent other letters: the letter dated 6th of March 2013 (Exhibit D14) and on 7th March 2013 the 1st defendant through her officers also wrote a letter to the 3rd defendant(Exhibit D15). In this letter, the C & M Exchange Limited was given 7 days ultimatum to do the needful on all outstanding issues at the pain of an industrial action.On 8th May 2013, the National Secretariat of the 1st defendant also caused a letter to be written to the C & M Exchange Limited urging a resolution to the issue within 7 days (Exhibit D17).
34. The defendants then referred to the section 42(1) of the Labour Act 2005, which gives stronger legal backing to picketing and provides that trade unions or Federation of Trade Unions, NLC can peacefully picket the premises of any employer with whom unions have established disagreements or disputes on the status of Workers; citing alsoUnion Bank of Nigeria Plc v. Edet[1993] 4 NWLR (Pt. 287) 288 at 298, where the Court of Appeal, relying on New Nigeria Bank Plc v. Egun[2001] 7 NWLR (Pt. 711) 1 at 18-19, recognized the right to strike as a collective weapon for enforcing collective agreements.
35. To the defendants, with regard to issue (iii) as formulated, the issue of jurisdiction is now settled law, and where a Court lacks jurisdiction it is robbed of competence to adjudicate on the matter. Furthermore, that:
i) It is the claim of the claimant as can be distilled from its statement of facts and not subsequent depositions that the Court must have recourse to, referring toFederal Ministry of Commerce and Tourism v. Chief Benedict Eze[2006] All FWLR (Pt. 323) 1704 at 1723.
ii) The claimant’s issue before this Court is a trade dispute within the meaning of section 48 of the TDA Cap T8 LFN 2004.
iii) What constitutes a trade dispute has been settled in an avalanche of judicial authorities whichinclude Ekong v. Oside[2005] 9 NWLR (Pt. 929) 102 CA,Oshiomole v. FGN and NUEE v. BPE[2010] 7 NWLR (Pt. 1194) 538 SC. That if the court examines the claimant’s case forensically, it is crystal clear that the case revolves around trade dispute, urging the Court to so hold.
36. That if the claimant’s case is a trade dispute, then it falls within the matters that this Court can only exercise its appellate jurisdiction and not the original jurisdiction. The reason being that when there is a trade dispute, as in this case, there are mandatory conditions precedents that the claimant must comply with before this Court can assume jurisdiction. That these are contained in sections 4(1) and (2), 5(1) and (2) , 6(1), 7(i) and (2) , 9(1) and (2), 17(a) and (b) of the TDA, and sections 7(1), (3) and 53 of the NIC 2006. That the process contained in Part I of the TDA must be exhausted and complied with before the intervention of this Court can be sought. That the claimant did not show that it has exhausted all the processes to be taken towards amicable resolution or that amicable resolution attempts has failed or that this action comes within the exceptions anticipated by law.That this Court has held in the numerous cases that Part I of the TDA must be exhausted before its jurisdiction can be invoked when there is a trade dispute,citing Corporate Affairs Commission v Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees[2004] 1 NLLR (Pt. 1) 1 and Logistic and Facilities Affairs (Life) v. National Union of Petroleum & Natural Gas Workers (NUPENG) &anor Suit No. NICN/LA/04/2014 delivered on 2012-06-07 and reported on the NICN Judgment Platform. To the defendants, where there is non-compliance with a stipulated pre-condition for setting the legal process in motion, any suit instituted in contravention of the condition is incompetent and the court is equally incompetent to entertain the suit. Similarly, that where the main or principal claim of a party is not within jurisdiction of the court, the jurisdiction of the court cannot be invoked and the action is liable to be struck out on ground of incompetence, citingAbunku v. Benue State Government &ors[2016] 65 NLLR (Pt. 232) 613 NIC at 629. The defendants then urged the Court to resolve issues (i),(ii) and (iii) in their favour by striking out the claimant’s case on ground of incompetence.
37. With regard to issues(iv) and (v), the defendants submitted that these issues arose from their counterclaim. That the law is clear that a counterclaim is a separate suit from the original suit;a counterclaim is a claim by the defendant against the plaintiff in the same proceedings. It is regarded as an independent action in which the defendant/counterclaimant is in the position of the plaintiff, citing Isyaku v.Master[2003] 5 NWLR (Pt. 814) 443,Olowolaramo v. Umechukwu[2003] 2 NWLR (Pt.805) 537 andObasi Bro Co.Ltdv. MBA Securities Ltd[2005] 2SC (Pt. I) 51 at 71. That the counterclaimant in support of its counterclaim gave unchallenged evidence as follows:
• That on 14th May 2013, when the meeting held, at the close of business, our members at the close of business were prevented from boarding the staff bus, keys were retrieved from drivers.
• That the next day,15th May 2013, when the Memorandum of Understanding was to be signed, the claimant who contributed and edited the memorandum insisted that we have to send text messages to our members to call off the looming strike, we immediately complied believing that the claimant were genuine in their request.However when they became convinced that we had effectively called off the strike, they refused to sign the Memorandum of association.
• That it is pertinent to note that our members who resumed work the next day including secretaries, office assistants and drivers were locked out; eighty of our members were locked out from their offices and places of work till date. They were continuously harassed to return their ID cards and those who had resumed before the security came were chased out of their offices. This was going on as the memorandum of understanding was being signed.
• That the workers who were shocked by this lock-out later gathered outside the premises of the Bank at Diamond Bank Head office at Adeola Hopewell Street in Victoria Island and started a spontaneous protest singing solidarity songs, the 1st defendant was thereafter invited to address the workers.
• That at this point, the attention of the DPO Victoria Island was drawn to the matter, who invited the union and diamond Bank management to a meeting in his office and later took the matter to the Area Commandment at Lion Building, Lagos.
• That the Area commander of Lion Building in Lagos listened to the parties, tried to mediate and later advised parties to go back to the negotiating table, he was surprised that the claimantcould be so deceitful in their management practice. We wrote to management to ensure implementation of the MOU and not to victimise any member of the union because of the agitation as contained in the MOU.
• That the 1st defendant in furtherance to her statutory duties on 17th May 2013 wrote to the claimant to implement the MOU and advised against victimization of her members in the employment of the claimant.
• That the claimant in a shameless display of hatred of unionized workers and in obvious act of executive high-handedness to a legitimate agitation, ordered the return of eighty of their associate staff back to the C & M Exchange Limited in order to avoid the MOU, and in order to ensure that the union does not thrive in its employment, which they designed as a concentration camp for the junior workers, referring to the letter of 20th May 2013 addressed to the claimant’s Managing Director.
38. To the defendants, section 9(6)(b)(ii) of the Labour Act together with section 42(1)(b) of the TDA FORBIDS termination exercise by reason of trade union activities. Section 9(6)(b)(ii) of the Labour Act provides that “no contract shall cause the dismissal of or otherwise prejudice a worker because of trade union activities outside working hours or with the consent of the employer, within working hours”. Similarly,section 42(1)(b) of the TDA provides that notwithstanding anything contained in the TDA or in any other law where any employer locks out his workers, the workers shall be entitled to wages and any other applicable remuneration for the period of lock-out and the period of the lock-out shall not prejudicially affect any rights of the workers being rights dependent on the continuity of period of employment.That the act of terminating the employment of an employee is tantamount to a lock-out since thereby the employee is not afforded the opportunity to report at the workplace. That the combined effect of these provisions, therefore, is that an employee is entitled to be reinstated where his or her employment has been terminated because of union activities. Ordinarily, that an order of reinstatement is the appropriate order to make in the circumstance of this case where the termination of employment is connected with the employees’ trade union activities, referring to National Union of Food, Beverage and Tobacco Employees v. Cocoa Industries Ltd, Ikeja [2005] 3 NLLR (Pt. 8) 206 at 218,Mix & Bake v. NUFBTE [2004] NLLR (Pt. 2) 247 at 276-277, Chemical & Non-Metallic Products Senior Staff Association v. Benue Cement Company Plc Suit No. NIC/7/2000 at page 419 DJNIC, Industries Ltd, Asaba v. National Union of Textile, Garment and Tailoring Workers Suit No. NIC/6/90 (incomplete citation),Hotel and Personal Services Senior Staff Association v. Owena Hotels Limited, Akure [2005] 3 NNLR (Pt. 7) 163,Nestle Nig. Plc v. NUFBTE [2009] 15 NLLR (Pt. 40) 42 at 75-76 andManagement of Dangote Pasta Plant Ind. Ltd v. National Union of Food, Beverage & Tobacco Employees [2009] NLLR (Pt. 37) 25 at 48.
39. The claimant went on that from the preponderance of admissible evidence some of the workers have worked with the claimant for over twenty years and were transferred by the claimant to the contractor over the years. That the relationship is like agency arrangement. That agency exists between two persons when one of them expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties and the other similarly consents to so act thereby creating an actual, express or implied authority, citingVulcan Gases Ltd v. GFIG [2001] All FWLR (Pt. 52) 1 at 24 and Bamigboye v. University of Ilorin [2001] All FWLR (Pt. 32) 12 at 51. That this Court had held elsewhere about the special employment relationship which the International Labour Organisation (ILO) terms disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer (where the person designated as an employer is an intermediary with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers) or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to dependent workers). The defendants referred to the ILO Report titled, The Scope of the Employment Relationship (ILO Office: Geneva), 2003 at pages 24-25.
40. The defendants continued that in the instant case, the disguised employment relationship of the parties comes in the form of a triangular employment relationship, which is a relationship that occurs when employees of an enterprise (the provider) perform work for a third party (the user enterprise) to whom their employer provides labour or service. The triangular employment relationship comes in a variety of forms the best known of which is the use of contractors and private employment agencies. The defendants urged theCourt to take judicial notice of the fact that the said contractor filed a motion to excuse itself from this suit and the fact that the claimant did not seek the opinion of the contractor to send the 1st defendant’s members for training to become ‘Spy Police’ despite the pretensions of the claimant to explain this away. The defendants referred to The Scope of the Employment Relationship at pages 23 and 37-39 and submitted that to the ILO, the determination of the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract;that is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship. That this is known in law as the principle of the primacy of facts, which is explicitly enshrined in some national systems; which principle might also be applied by judges in the absence of an express rule. That the ILO concluded by advising that the judge must normally decide on the basis of the facts, irrespective of how the parties construe or describe a given contractual relationship.It is against this background that the defendants urged the Court to consider the employment relationship existing between the parties and resolve issues (iv) and (v) formulated by the defendants against the claimant.
41. By way of reply to the claimant’s submissions, the defendants repliedthus:
(i) Contrary to the position of the claimant distilled from paragraphs 2.1 g, h, and i,the evidence before this Court is that the main issue was the negotiation on the implementation of the career path for the workers (Exhibit D7) and when negotiation was on,the claimant was busy locking out the defendants’ members, the picketing was spontaneous and till date none of the 80 members of the defendants was given any sack or deployment letter.
(ii) Contrary to paragraph 2.1(i) the actual fact is as narrated by DW, referring toparagraph 20 wherein the witness gave unchallenged evidence to the effect that the defendants are all law-abiding and are known in the event of planned industrial action to make their intentions known boldly and formally and not through any faceless group or by springing surprises on management. Indeed why would they picket Kano when the relevant parties are in Lagos? The claimant did not challenge this evidence in any way or through cross-examination. The submission of counsel to the claimant is not supported by evidence adduced.
(iii) Similarly, all the submissions of counsel in paragraphs 2.2. j, k, m are unproved. The CCTV video was a waste of the Court’s time, no one was identified or identifiable in the said video and the witness CW2 gave contradictory evidence; he initially said Benjamin Onyia was the person breaking doors but when shown in Court Benjamin Onyia (who is a physically challenged person) CW2 said he was not the one. The CCTV video may be another incidence all together and the claimant failed woefully to relate Exhibit C35 to this case or to the defendants. CW3 also gave unreliable evidence trying to relate a photograph of a hand to her person. This piece of evidence is unhelpful in anyway.
(iv) Contrary to the distortion of evidence adduced, as contained in paragraph 2.4(v),it is a lie that DW said he didn’t caution the 1st defendant’s members not to use violence.That the witness was asked:
Q: Nothing in Exhibit C32 cautioned your members against using violence?
A: No.
Q: You picketed on 10th of July and 11th July 2013?
A: The picketing didn’t take place, I was at the Headquarters on both days.
Q: You chased out the staff and locked the gate?
A: No.
Paragraphs vii and viii of the written address are also distortions.We are bound by the Court’s records.Similarly, facts said not to be in dispute in paragraph 3 are seriously disputed facts.
(v) Paragraph 6.20 is an admission against interest. The submission that the 1st defendant created a ‘fictional trade dispute’ is an admission of a trade dispute which the claimant describes as fictional. It is this Court that has the responsibility of determining whether there is a trade dispute or not.
(vi) DW’s evidence that the attention of the DPO Victoria Island was drawn to the matter, who invited the union and Diamond Bank management to a meeting in his office and later took the matter to the Area Commandment at Lion Building, Lagos was unchallenged.Equally, the evidence that the Area commander of Lion Building in Lagos listened to the parties, tried to mediate and later advised parties to go back to the negotiating table, that the area commander then, now the CP of Lagos was surprised that the claimant could be so deceitful in their management practice was unchallenged as isthe fact that the union wrote to management to ensure implementation of the MOU and not to victimise any member of the union because of the agitation as contained in the MOU.
(vii)Where evidence is unchallenged the Court should act on same as the truth, citing Kopek Construction Ltd v. Ekisola [2010] 1 SC (Pt. I ) 1 andTanko v. Vechendu[2010] 12 SC (Pt. I) 33.
THE CLAIMANT’S REPLY ON POINTS OF LAW
42. The claimant reacted on points of law. The defendants had argued that in line with section 42(1) of the TDA 2004, the defendants gave strike notice to C & M Exchange Limited by several letters sent to the company; and that section 42 of the Labour Act 2005 gave them the legal backing to picket since by its provision trade unions and Federation of Trade Unions can peacefully picket the premises of any employer with whom the unions have established disagreement or disputes on status of workers. To the claimant, the operative word here is “employer”. That the right or freedom given to the trade union or Federation of Trade Unions to picket can only be exercised against the employer. That by section 91 of the Labour Act LFN 1990, an employer is defined as:
“employer” means any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer.
That the claimant is not an employer in this case in the context of section 42 of the TDA 2004 (which the defendants referred to as Labour Act 2005). That even the defendants recognized this by the array of letters and strike notices given to C & M Exchange Limited, the employer, and not the claimant.
43. The defendants also argued that what is in issue in this suit and the case of the claimant is a trade dispute within the meaning of section 48 of the TDA. To the claimant, it is surprising that the defendants who have been shouting that there exists a trade dispute between the parties has now turned around to claim that the position they took in their pleadings is the case of the claimant. Besides, the parties’ pleadings speak for itself. The claimant referred to its relief (2) seeking a declaration that there is no trade dispute between the members of the 1st defendant and the claimant within the ambit and purview of the TDA to warrant the picketing of the claimant’s places of business and branches by the defendants. That it is the defendants’ case as seen in their pleadings that they have a right to unionize and to embark on industrial action to protest against de-unionization. That the defendants cannot change their position or shy away from their pleadings at this stage;the parties and the Court are bound by the pleadings in this case and cannot go outside it. The Court cannot also make a different case for the parties outside what is in the pleadings, citingMallam Jimoh Atanda v. The Hon. Commissioner for Lands and Housing, Kwara State &anor[2017] LPELR-42346(SC).
44. The defendants had also argued that the act of terminating the employment of the 1st defendant’s members is tantamount to a lock-out and the employee is entitled to be re-instated, relying on section 9(6)(ii) of the Labour Act and section 42(1)(b) of the TDA. To the claimant, the defendants did not lead any evidence to show that the members of the 1st defendant working in the claimant had the consent of their employer, C & M Exchange Limited, to riot and disrupt the services of the claimant during working hours on 15th April 2013. That the claimant on the other hand showed by its pleadings and evidence that it has no problems with the members of the 1st defendant and was always willing to assist them to resolve the issues they had with their employer. That it is also in evidence that the claimant did not lock-out or sack the members of the 1st defendant but only requested their employer, pursuant to the contract between the claimant and the employer, to recall those that rioted.
45. The defendants further argued that the Court should determine the existence of an employment by the facts they pleaded and not how the parties construe or describe their contractual relationship. To the claimant, the parties are bound by the contract they freely and willingly entered into; and the duty of the Court is to give effect to that contract, not to add or remove from it, referring toAG Ferrero & Company Ltd v. Henkel Chemicals Nigeria Ltd[2011] LPELR-12(SC). That the Court cannot infer or imply the existence of a contract between the claimant and the defendants when there is in existence an express and written contract between the defendants and C & M Exchange Limited as seen in the letters of employment, deployment and termination issued by the Contractor to the members of the 1st defendant; and the written contract between the claimant and C & M Exchange Limited. That the duty of the Court is to give effect to these express contracts and not to imply the existence of a contract that does not in fact exit.
COURT’S DECISION
46. I have carefully considered the processes filed and the submissions of the parties. There are two issues of jurisdiction raised by the defendants. The first is that the act of violent picketing is beyond the adjudication of this Court. That it is a criminal act that was dealt with elsewhere, and this Court cannot, therefore, pronounce on it. That if there was a criminal invasion of the claimant’s premises, the Police and a Court having criminal jurisdiction are the proper institutions to investigate and try the offenders, not the National Industrial Court (NIC). By this submission, the defendants seem to think that this Court has no jurisdiction over criminal causes and matters. Nothing can be further from the truth. A look at section 254C of the 1999 Constitution will show the fallacy of the defendants’ argument. First, section 254C(1)(l)(iii) of the 1999 Constitution provides that the NIC shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters relating to such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly. This provision permits the National Assembly to confer on this Court jurisdiction over criminal cases. Section 254C(5) of the 1999 Constitution then goes on to provide that“the National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law”. This is a provision specifically conferring jurisdiction over criminal causes and matters on this Court. Section 254E(2) of the 1999 Constitution caps it all by providing that“for the purpose of exercising its criminal jurisdiction,the President of the Court may hear and determine or assign a single Judge of the Court to hear and determine such matter”. The point is that while section 254(C)(1) is quite emphatic in conferring exclusive jurisdiction on the Court over civil causes or matters relating to the issues listed in paragraphs (a) – (m), section 254C(5) confers criminal jurisdiction on the NIC over matters it has exclusive civil jurisdiction over. It may of course be tempting to conclude that the criminal jurisdiction granted over the said causes or matters is also necessarily exclusive. However, this conclusion has been rejected by the Court of Appeal interpreting a similar provision relating to the Federal High Court in terms of its criminal jurisdiction under section 251 of the 1999 Constitution. See the Court of Appeal decision of Momodu v. The State[2008] All FWLR (Pt. 447) 67 at 103 – 105 per Ogunwumiju, JCA, which is to the effect that the similar provision in section 251 of the 1999 Constitution in relation to the criminal jurisdiction conferred on the Federal High Court confers concurrent, not exclusive,criminal jurisdiction on the Federal High Court. The import of this is that in like manner the criminal jurisdiction conferred on the NIC though not exclusive is certainly concurrent. The talk by the defendants that the NIC has no criminal jurisdiction is, therefore, fallacious. I so hold.
47. The second issue as to jurisdiction raised by the defendants is that this Court does not have jurisdiction over the instant case of the claimants as the dispute in issue is a trade dispute for which the claimants cannot come to this Court in its original jurisdiction. That the claimant ought to have exhausted the processes of Part I of the Trade Disputes Act (TDA) Cap T8 LFN 2004 before coming to this Court. A look at reliefs (2) to (6) of the claimant will show that they all relate to fact of picketing alleged to have been committed by the defendants against the claimant. Relief (1), in seeking for a declaration that there is no contract of employment between the defendants and any of the workers of C & M Exchange Limited, employed by C & M Exchange Limited and posted to work at the claimant Bank (the defendants in the instant case), is necessarily so only for the question whether thereby there is justification for the said picketing by the defendants. The question presently before this Court as to whether there is a contract of employment between the claimant and the defendants is not, and I repeat, is not for the purpose of holding any of the parties liable as against each other but merely to decide whether thereby the defendants have a right to picket or strike against the claimant. A similar issue arose in Chevron Nigeria Limited v. National Union of Petroleum and Gas Workers (NUPENG) &anor unreported Suit No. NIC/LA/37/2010, the judgment of which was delivered on 2nd December 2013. This is what this Court said:
…the primary issue before the [Court] is the legality or otherwise of the industrial action complained of. In consequence, all arguments in regard to the recognition dispute are hereby discountenanced for purposes of this judgment.
When the claimant filed this action the reliefs sought for from this Court relate to the issue of industrial action/strike. This is what gave rise to this Court assuming original jurisdiction over the matter given the authority of section 7(1)(b) of the NIC Act 2006. This means that once the claimant introduced issues as to whether there is a contract of employment between members of the 1st defendant and the claimant or who the actual employer is of the members of the 1st defendant, the claimant actually went beyond the pale of the original jurisdiction of this Court. Except to the extent that that issue may be necessary in determining the legality [or] otherwise of the industrial action in issue, I shall discountenance all arguments in that regard as the instant case is not about the legality or otherwise of outsourcing. The ploy by the claimant to get this Court to resolve that issue through the back door is hereby resisted…
In the instant case, I have no doubt whatsoever that what brought the claimant to this Court as per the instant case is the said picketing by the defendants. It is on this basis, therefore, that we must consider the merit or otherwise of the defendants’ contention that the claimants must exhaust the processes of Part I of the TDA before it can approach this Court in its appellate jurisdiction over the dispute it has with the defendants.
48. The starting point is a look at the position prior to the Third Alteration to the 1999 Constitution. The immediate provision here is section 7(1) and (3) of the NIC Act 2006; which incidentally shows another fallacy in the defendants’ submissions. Section 7(1) and (3) of the NIC Act 2006 provides as follows:
(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters-
(a) relating to-
(i) labour, including trade unions and industrial relations; and
(ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and
(b) relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action;
(c) relating to the determination of any question as to the interpretation of-
(i) any collective agreement,
(ii) any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute,
(iii) the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement,
(iv) any trade union constitution, and
(v) any award or judgment of the Court.
(3) Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1)(a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court.
49. In explaining the position of the law, I must start with section 53(1), (2) and (3) of the NIC Act 2006, which repeals Part II of the TDA and then provides that: without prejudice to the provisions of subsection (1) of this section, the other provisions of the TDA shall be construed with such modifications as may be necessary to bring it into conformity with the provisions of this Act; and if any provision of the TDA is inconsistent with the provision of the NIC Act the provisions of the NIC Act shall prevail. Section 54(4) of the NIC Act 2006 reiterates and reinforces this point. It provides that the TDA amongst other enumerated enactments shall be construed with such modifications as may be necessary to bring them into conformity with the provisions of theNIC Act. So in interpreting section 7(1) and (3) of the NIC Act, it must be borne in mind that the TDA takes a secondary seat to it. It is section 7(3) of the NIC Act 2006 that permits the National Assembly to prescribe that any matter under section 7(1)(a), note the specific reference to only section 7(1)(a), may go through the process of conciliation or arbitration before such matter is heard by this Court. It is on this basis that this Court has over time allowed collective disputes (trade disputes) over matters covered by section 7(1)(a) to go through the processes of Part I of the TDA before coming to this Court in its appellate jurisdiction. In AUPCTRE v. FCDA and ors[2008] 10 NLLR (Pt. 26) 304, for instance, the NIC had this to say on section 7(3) –
… the word, “Notwithstanding”, in section 7(3) is meant to qualify the jurisdiction granted the NIC until conciliation and arbitration, if provided for, have been done. It is to reinforce this stance of the law that section 7(4) of the NIC Act provides that an appeal shall lie from the decision of an arbitral tribunal to this court as of right in matters of disputes specified in section 7(1)(a) of the NIC Act. In appropriate cases…the original jurisdiction of this court may, by an Act of the National Assembly, be made contingent upon exhausting the processes of conciliation and arbitration. Where this is the case, the position is not that the jurisdiction of the court has been ousted; only that it is contingent upon those processes being exhausted.
49. The import ofsection 7(3) is that matters within the purview of section 7(1)(a), that is, matters in respect of ‘labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto’, which had to go through the processes of Part I of the TDA will continue to go through those processes even after the passing of the NIC Act. Section 7(1)(b) dealing with “strike, lock-out or any industrial action” is not covered by section 7(3). This means, as held in numerous cases by this Court, that there is no requirement for matters of “strike, lock-out or any industrial action” to go through the processes of Part I of the TDA before coming to this Court. This Court recognizes the urgency involved in matters of “strike, lock-out or any industrial action” in coming to this conclusion; for by section 19(a) of the NIC Act 2006, this Court has the power to grant urgent interim reliefs. No where is it more urgent than in cases of “strike, lock-out or any industrial action”.
50. A similar argument was raised under the current dispensation of the Third Alteration to the 1999 Constitution in The Federal Government of Nigeria& anor v. Nigeria Labour Congress (NLC)& anor unreported Suit No. NICN/ABJ/179/2016, the judgment of which was delivered on 15th July 2016. The issue for determination in that case was whether the defendants can go on strike because the price of PMS was increased by the Federal Government. The defendants raised the argument that the claimants will need to exhaust the processes of Part I of the TDA before litigating the issue. This Court rejected the defendants’ argument and explained the position of the law. I crave the indulgence to quote extensively from the judgment. I held thus:
Now, this Court has been given special jurisdiction over industrial actions and strikes. The first time this was done was in 2006 vide section 7(1)(b) of the NIC Act 2006, which provides that this Court shall have and exercise exclusive jurisdiction in civil causes and matters relating to the grant of any order to restrain any person or body from taking part in any strike, lockout or any industrial action, or any conduct in contemplation or in furtherance of strike, lockout or any industrial action. In 2006, this provision was novel and meant to guard against the circuitous nature in which the legality or otherwise of strike actions was often determined in the country. Before 2006, for instance, it took the High Court of the Federal Capital Territory as per Federal Government of Nigeria v. Adams Oshiomhole [2004] 1 NLLR (Pt. 2) 326, the Court of Appeal as per Federal Government of Nigeria v. Adams Oshiomhole [2004] 1 NLLR (Pt. 2) 339 and the Federal High Court as per Federal Government of Nigeria v. Adams Oshiomhole [2004] 1 NLLR (Pt. 3) 541 to decide whether Comrade Adams Oshiomhole and the Nigeria Labour Congress (NLC) can validly lead Nigerians on a strike action. Given the submissions of the 1st defendant in the instant case that this case is still pending at the Supreme Court, it means that even as at 2016 (i.e. 13 years after), we still do not know if Comrade Adams Oshiomhole and the NLC validly led Nigerians on the strike action of 2003. But because NUEE v. BPE [2010] LPELR-1966(SC); [2010] 7 NWLR (Pt. 1194) 538 SC ruled that as at 2010, the NIC remained an inferior court of record, it meant that section 7(1)(b) of the NIC Act could not stand the jurisdictional mandate of the High Courts under the 1999 Constitution. The answer by the National Assembly was to enact the Third Alteration to the 1999 Constitution, which inserted section 254C(1)(c) of the 1999 Constitution, as amended. Section 254C(1)(c) provides that this Court shall have exclusive jurisdiction in civil causes and matters –
relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of strike, lock-out or any industrial action and matters connected therewith or related thereto.
Now, this Court has generally held that despite that section 254C(1) of the 1999 Constitution, as amended, confers exclusive jurisdiction on this Court, that would not stop matters that ought to go through mediation, conciliation and arbitration from going through those processes before adjudicating same in this Court. In any event, even section 254C(3) of the 1999 Constitution, as amended, permits this Court to establish an Alternative Dispute Resolution (ADR) Centre within the Court premises as well as entertain and exercise appellate and supervisory jurisdiction over arbitral tribunals, and section 254C(4) enjoins this Court to entertain any application for the enforcement of the award, decision, ruling or order made by an arbitral tribunal. All of this presupposes that mediation, conciliation and arbitration can be enjoined before any adjudication in this Court. This fact is reinforced by section 7(3) of the NIC Act 2006, which provides as follows –
Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court.
Accordingly, see AUPCTRE v. FCDA and ors unreported Suit No. NIC/17/2006 delivered on 23rd May 2007 and Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v. Union Bank of Nigeria Plc and ors unreported Suit No. NIC/11/2007 delivered on January 24, 2008.
This probably is what the defendants had in mind when they argued that the claimants did not exhaust the processes of Part I of the TDA before coming to this Court. But the question still remains whether a dispute as to a strike or industrial action is one that must go through the dispute resolution processes of Part I of the TDA. A careful reading of section 7(3) of the NIC Act will show that the matters which will need to go through conciliation and arbitration are those listed in section 7(1)(a) of the NIC Act itself. Section 7(1)(a) provides that this Court shall have and exercise exclusive jurisdiction in civil causes and matters –
relating to –
(i) labour, including trade unions and industrial relations; and
(ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereof.
Section 7(3) of the NIC Act 2006 did not include section 7(1)(b) as part of the matters that will need to go through conciliation and arbitration before coming to this Court. The reason for this is not farfetched. Section 7(1)(b) of the NIC Act 2006 as well as section 245C(1)(c) of the 1999 Constitution, as amended, in dealing with issues of industrial actions, deal with matters that are of urgent importance, matters that should not be bogged down in the trappings of a slow paced dispute resolution process. The urgency of this case was captured by the Hon. President of this Court in his ex parte ruling of 17th May 2016 in this case. This also explains why in section 19(a) of the NIC Act 2006, this Court is granted the power to make urgent interim reliefs where necessary.
Going, therefore, by section 7(1)(b) of the NIC Act and section 254C(1)(c) of the 1999 Constitution, as amended, this Court has original (not appellate as by going through the processes of Part I of the TDA) jurisdiction to hear and determine any matter relating to the grant of any order to restrain anybody or person from taking part in any strike or industrial action. In talking about “any person or body”, both the NIC Act and the constitutional provisions are not restricted to trade unions or employers’ organisations alone; which means that an action will lie even against persons or bodies that are not trade unions or members of a trade union as long as the issue relates to an industrial action. So once the issue is whether to grant a restraining order as to an industrial action or strike or lockout against any person or body, this Court (and none other) will have original jurisdiction; and I so find and hold. See Pam & ors v. ABU & ors [2013] LPELR-21406(CA), where section 7(1) of the NIC Act was interpreted and Aboki, JCA held thus –
A careful reading of the provisions of section 7(1)(a)(b) & (c) of the National Industrial Court Act 2006 reproduced above will reveal that it concerns matters of labour, trade unions, industrial relations, environmental and condition of work, safety and welfare of labour as well as related matters such as strike, lock-out or any industrial action.
See also Power Holding Company of Nigeria Plc & anor v. AG Sokoto State & anor [2014] LPELR-23825(CA), which held that because there was nothing in the statement of claims to show that the matter has anything to do with labour law, trade dispute, industrial relation or industrial action, and there is no employee/employer relationship disclosed in the pleadings between the parties to the action, the NIC cannot be said to be the Court with jurisdiction to hear and determine the case. In all, the arguments of the defendants that the claimants need to exhaust the processes of Part I of the TDA before coming to Court are accordingly untenable and so are hereby discountenanced.
51. The defendants in the instant case certainly got it wrong when they submitted that this Court has no jurisdiction over the instant case, a case that is from the reliefs and pleadings clearly one contesting the right of the defendants to picket the claimant. There is no requirement under the NIC Act 2006 for the claimant to have exhausted the processes of Part I of the TDA before coming to this Court. I must reiterate that matters under section 7(1)(b) of the NIC Act 2006 are not required to go through the processes of Part I of the TDA before coming to this Court. They can be litigated in this Court in terms of its original jurisdiction. I so hold.
52. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, “a claim is circumscribed by the reliefs claimed”. The claimant is seeking six reliefs from this Court: four declarations and two injunctive orders. From these reliefs, the claimant’s case is: the defendants have no right under the TDA and TUA, and hence it is wrongful for them, to picket or embark on any industrial action against the claimant particularly when the defendants have no contract of employment with the claimant and there is no trade dispute between the parties. Here, the claimant argued that the existence of a contract and/or a trade dispute is a sine qua non to the right to picket or strike. The claimant had thus argued that for the defendants to have a right to picket it, they must have a contract of employment with it. Referring to Exhibit C1, the Labour Service Agreement of the claimant with C & M Exchange Limited, the claimant submitted that there is no contract of employment between it and the defendants.
53. Before addressing the issue whether the defendants must have a contract of employment with the claimant before they can picket the claimant, it is necessary to look into the law’s definition of the term ‘employer’ to see if the claimant itself is not an employer within the meaning of that word. Section 91(1) defines an “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer”. The Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors [2008] 4 – 5 SC (Pt. II) 117 held a contract for the supply of security guards by the appellant to the 1st respondent in consideration of a monthly payment of an agreed amount per security guard to be a contract of service/employment.This conclusion was arrived at most likely given the definition of “recruiting” under section 91(1) of the Labour Act 2004, which provides thus: “recruiting includes all operations undertaken with the object of obtaining or supplying the labour of persons who do not spontaneously offer their services at the place of employment, at a public emigration or employment office or at an office conducted by an employer’s association and supervised by the Minister”. See Oladapo Olatunji& anor v. Uber Technologies System Nigeria Limited& 2 ors unreported Suit No. NICN/LA/546/2017, the judgment of which was delivered on 4th December 2018. The world of work, in throwing up new forms of work, has brought out new challenges into the traditional concepts of ‘employer’, ‘employee’ and even the ‘employment relationship’ that the law is still grappling with. Questions, as presently is the case, have arisen as to who should be considered an employer and what responsibilities should be borne by the user of labour. The traditional view assumes a relationship between an employee and a single employer. This unitary conception of the employer is, however, losing ground. In appropriate cases, for instance, the courts have upheld the fact of co-employer status between two employers in relation to an employee as was the case in Onumalobi v. NNPC and Warri Refining and Petrochemical Company[2004] 1 NLLR (Pt. 2) 304. And in PENGASSAN v. Mobil Producing Nigeria Unlimited[2013] 32 NLLR (Pt. 92) 243 NIC the NICN acknowledged the reality of triangular employment relationships.
54. The reality is that from the evidence before the Court, the claimant has a labour service contract with C & M Exchange Ltd, which labour service contract is Exhibit C1. By this labour service contract, C & M Exchange Ltd supplies labour (workers), who happen to be the defendants as supplied by C & M Exchange Ltd. See paragraphs 5 to 16 of the statement on oath of CW1. By PENGASSAN v. Mobil Producing Nigeria Unlimited, this effectively created a triangular employment relationship between the claimant, C & M Exchange Ltd and the workers C & M Exchange Ltd supplies to the claimant (the defendants). This equally amounts to what the International Labour Organization (ILO) calls a disguised employment relationship. In cases of triangular or disguised employment relationships, the ILO enjoins on courts the principle of primacy of facts i.e. to emphasize substance over form. This is the context and basis upon which the defendants urged the Court, on the principle of primacy of facts, to look into the substance of the relationship between the parties and hold that the relationship is one of a triangular employment relationship for which the claimant are at worse a co-employer of the defendants. I agree with the defendants, therefore, that the relationship between the parties is one of a triangular or disguised employment relationship; and I so find and hold.
55. In reaction, the claimant submitted that this Court cannot read terms into a contract or create a contract between the claimant and the defendants where none exists. Here, the claimant appears blind to certain realities about this Court and the world of work where the traditional forms of work are being altered by the day. To start with, it is possible today for the Court to imply terms in a contract of employment. In the words of Amina Audi Wambai, JCA (delivering the leading judgment) in Afrab Chem Ltd v. Pharmacist Owoduenyi [2014] LPELR-23613(CA):
In an employer-employee or master-servant relationship, in addition to or to the exclusion of the express terms of the contract, the law imposes certain implied terms into the contract. These implied terms may either be founded on statute, by custom, by practice, public policy or such terms as to ensure that the master does not subjudge the servant to a condition of servitude or slavery or like terms. While the court should not concern itself with the reasonableness or otherwise of the contractual terms between the contracting parties, the law would not allow the imposition of servile conditions on an employee. Any such contract which tends to impose servile obligations upon any person would not be enforceable, see Davies v. Davies (1887) 36 Q – D 359. Where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties.
56. Secondly, the very essence of an Industrial or Labour or Employment Court was succinctly captured by the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, to the effect that –
The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.
This Court in Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC noted and applied this very essence.
57. Thirdly, although Uber B.V. (UBV) & ors v. Yaseen Aslam & ors [2018] EWCA Civ 2748 (19 December 2018), a UK Court of Appeal decision, was fact-specific, the majority held that agreements can be disregarded by the courts especially if they are a false portrayal of the relationship between the parties. Of note, the English courts, as in Uber B.V. (UBV) & ors v. Yaseen Aslam & ors [2018] EWCA Civ 2748 (19 December 2018), which at paragraph 48 quoted and applied the UK Supreme Court decision in Autoclenz Ltd v. Belcher [2011] UKSC 41; [2011] ICR 1157, note the fact of industrial or employment judges being industrially informed. Hear them: “Employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing”; and in paragraph 49 advised “[employment] tribunals to be ‘realistic and worldly wise’ in this type of case when considering whether the terms of a written contract reflect the real terms of the bargain between the parties; and…should take a ‘sensible and robust view of these matters in order to prevent form undermining substance’…” And in Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018, this Court quoted with approval Arturo Bronstein who in International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pp. 1 – 2 said thus:
…the goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place.
58. The argument of the claimant that this Court cannot read terms into a contract or create a contract between the claimant and the defendants where none exists is one made without taking account of the peculiarities of the modern world of work. In appropriate circumstances, this Court can do just that. I held earlier that the relationship between the claimant, C & M Exchange Ltd and the defendants is one of a triangular or disguised employment relationship. This being so, the defendants can picket the claimant since it stands in a proximate employment relationship where the right to picket or strike can be exercised, of course if all things are equal.
59. The defendants had argued that it is in evidence that whilst a meeting was going on within the premises of the claimant, the claimant was busy shutting the 1st defendant’s members out and refusing the drivers entrance into their official vehicles. That this was the issue that precipitated the spontaneous protest that birthed this suit. In answer, the claimant submitted that the defendants did not lead any evidence to show that the members of the 1st defendant working in the claimant had the consent of their employer, C & M Exchange Limited, to riot and disrupt the services of the claimant during working hours on 15th April 2013. This submission of the claimant misunderstands the import of especially section 9(6)(b)(ii) of the Labour Act, which provides thus: “no contract shall cause the dismissal of or otherwise prejudice a worker because of trade union activities outside working hours or with the consent of the employer, within working hours”. The requirement of consent of the employer before trade union activities can be embarked on during working hours is not one that logically fits the bill of strikes or industrial actions. While it is conceded that strike or industrial action is a trade union right and activity in Nigeria (The Hon. Attorney-General of Enugu State v. National Association of Government General Medical and Dental Practitioners (NAGGMDP) & anor unreported Suit No. NIC/EN/16/2010 delivered on June 20, 2011 held that the right to strike is a right belonging to trade unions and not to individual workers), no employer will ever consent to a notice of strike by workers. So when section 9(6)(b)(ii) of the Labour Act talked of consent of the employer first had and received before trade union activities can be embarked on during office hours, what is contemplated are trade union activities such as meetings. This means that the appropriate question is not whether the defendants had the consent of their employer to embark on the picketing they were said to have done but whether the meeting the defendants said was ongoing within the premises when the claimant shut out the 1st defendant’s members thus triggering the protest was with the consent of the claimant first had and received. Incidentally, by paragraphs 16(v) and 17 of the statement on oath of DW, the meeting talked of was one between all the parties: the claimant, the defendants and C & M Exchange Ltd, a meeting confirmed by CW2 under cross-examination. So the question of seeking for consent before the meeting is held does not even arise as consent is already implied since all parties were in attendance. I so find and hold.
60. The next issue raised by the claimant is that the defendants can only picket or strike if there is a trade dispute between it and the defendants, citing section 43 of the TUA, which deals with peaceful picketing. The said section in governing the right to picket provides as follows:
(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or registered Federation of Trade Unions or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.
(1A) No person shall subject any other person to any kind of constraint or restriction of his personal freedom in the course of persuasion.
(1B) No trade union or registered Federation of Trade Unions or any member thereof shall in the course of any strike action compel any person who is not a member of its union to join any strike or in any highways, institutions or premises of any kind for the purposes of giving effect to the strike.
(2) Accordingly, the doing of anything declared by subsection (1) of this section to be lawful shall not constitute an offence under any law in force in Nigeria or any part thereof, and in particular shall not constitute an offence under section 366 of the Criminal Code or any corresponding enactment in force in any part of Nigeria.
61. The claimant also relied on section 44 of the TUA, which deals with acts not actionable in tort if in contemplation or furtherance of a trade dispute. It provides thus:
(1) An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on anyone or more of the following grounds only, that is to say-
(a) that it induces some other person to break a contract of employment; or
(b) that it is an interference with trade, business or employment of some other person or with the right of some other person to dispose of his capital or his labour as he wishes; or
(c) that it consists in his threatening that a contract of employment (whether one to which he is a party or not) will be broken; or
(d) that it consists in his threatening that he will induce some other person to break a contract of employment to which that other person is a party.
(2) Nothing in subsection (1) of this section shall prevent an act done in contemplation or furtherance of a trade dispute from being actionable in tort on any ground not mentioned in that subsection.
62. The argument of the claimant is that aside form the fact that there was no trade dispute between it and the defendants, the defendants’ picketing was violent, relying on the testimony of DW3 and Exhibit C35, “the CCTV video recording showing the violent acts of the Respondents on 10 July 2013 at the Claimant’s Contact Centre in Victoria Island”. At the trial on 21st February 2017, Exhibit C35 was played in open court when CW2 was testifying. Under cross-examination, CW2 testified that he thought the shortish man in the video clip who broke the door was Benjamin Onyia. A person called Benjamin Onyia was then called out and CW2 identified him to be Benjamin Onyia. CW2 went on to testify that the Benjamin Onyia he knows does not have a walking stick although he had always walked with a limp. CW2 went on that seeing Benjamin Onyia standing before him now, he cannot say that he is the one in the video clip just played. My observation of events at the trial of 17th February 2017 is that Benjamin Onyia who was called out had to an extent bow legs, not K-legs as the man in the video clip. The man in the video clip looked more robust than the Benjamin that actually came out in the Court. The end result is that Benjamin Onyia cannot be linked to Exhibit C35. I so find and hold.
63. CW3 in her testimony on same 17th February 2017, identified Exhibit C35 as the video recording she talked of in her deposition and which shows Diamond Bank Contact Centre, Adeola Hopewell, VI, Lagos, where she works. She testified that she is the one being flogged in the video but that she did not know the people who came to flog them. CW3 also identified Exhibits C33 and C33(a) and then testified that the pictures in them are the injuries on her hand that she sustained as per paragraph 7 of her deposition. Under cross-examination, however, she testified that there is no face to Exhibits C33 and C33(a), there is no date on the photographs and that all she knows is that the photographs were taken on 10th July 2013 although there is no date on them. She went on that she knows the photographs to be her because the hand is hers; that the cloth on it was what she wore on that day. To the extent that CW3 did not know the people in the video who flogged her and others, it is not possible to link the video with any of the defendants. I so find and hold. Also, the fact that there is no face to any of the pictures in Exhibits C33 and C33(a) as well as the fact that they have no date on them, Exhibits C33 and C33(a) cannot carry any weight; not with the modern trends in technology with its problems posed by photoshoots, what The Hon. Justice E. O. Araka v. The Hon. Justice Don Egbue [2003] 17 NWLR (Pt. 848) 1 SC at page 20 noted as photo tricks, a product of “this age of sophisticated technology”. I so find and hold. As it is, therefore, the fact of violent picketing by the defendants, as alleged by the claimant, has not been proved. I so hold.
64. Relying on sections 43 and 44 of the TUA, the claimant had argued that the defendants cannot picket because there was no trade dispute between it and the defendants; and that whatever trade dispute the defendants may have should be with C & M Exchange Ltd, not with it (the claimant). I already held that the relationship between the three parties is one of a triangular or disguised employment relationship; as such, the claimant cannot argue that whatever trade dispute the defendants may have should be with C & M Exchange Ltd, not with the claimant. This aside, the phrase used in section 43 of the TUA is “in contemplation or furtherance of a trade dispute”. The use of the phrase “in contemplation” suggests that there need not be in existence a trade dispute. Once a trade dispute is contemplated, the right to picket can be exercised. The more recent definition of a trade dispute (over and above the definitions found in the TDA and TUA) can be found in section 54(1) of the NIC Act 2006, where “trade dispute” is defined to mean:
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,
(c)the conclusion or variation of a collective agreement, and
(d)an alleged dispute.
I need to stress here that, “any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with…an alleged dispute” qualifies as a trade dispute. By paragraphs 24 to 28 and 37 of the statement on oath of CW1, the defendants’ complaints relate to acts of intimidation and victimization, mass sacking of workers on grounds of legitimate agitation for humane conditions, and remittances of NHF and pensions deductions by C & M Exchange Ltd. Despite that the claimant denied having a hand in any of these complaints, there is no taking away the fact that they amount to disputes between employers and employees over the employment of the defendants and the terms of employment and physical conditions of work. This being so, the argument of the claimant that there is no trade dispute to authenticate the picketing in issue is untenable. I so find and hold.
65. I must state for emphasis that even if the defendants were not employees of the claimant, the right to picket could still exist since the place of work of the defendants is the claimant’s premises. In Chevron Nigeria Limited v. National Union of Petroleum and Natural Gas Workers (NUPENG) &anor (supra), this Court held thus:
…The argument of the claimant is that because the members of the 1st defendant are not its employees, they cannot embark on any industrial action within the premises of the claimant. The evidence before the Court indicates that the actual place of work of members of the 1st defendant is the premises of the claimant. The evidence before the Court also indicates that the members of the 1st defendant are actually outsourced staff from the 2nd defendant to the claimant. The issue is whether as outsourced staff who work in the premises of the claimant, they can go on strike or any industrial action while working in those premises…
………………………………
The argument of the claimant from [section 43 of the TUA] is that even if members of the 1st defendant have the right to picket, they cannot do that within the premises of the claimant. But is the law? Section 43(1) of the TUA talks of a “place where a person resides or works or carries on business or happens to be” regarding the right to picket. The evidence before the Court is that members of the 1st defendant who picketed are essentially drivers who drive the vehicles of the claimant, implying that they have a right of ingress and egress regarding the premises of the claimant. The premises of the claimant is, therefore, a place of work for them. This being the case, the workers in question have the right to picket within the premises of the claimant contrary to the submissions of the claimant; and I so find and hold. This being the case, the claimant is not entitled to any of the reliefs claimed as per its complaint and statement of facts.
66. On the whole, and for the reasons given, I do no see any merit in the claimant’s case against the defendants. The claimant has not satisfactorily proved any of the six reliefs it prays for. The claimant’s case accordingly fails and so is liable to be dismissed. I so find and hold.
67. I now turn to the defendants’ counterclaim under which the defendants are praying for three declarations and four orders. Counterclaims (i) and (iv) relate to the recall of the 80 staff alleged to have been sacked by the claimant; counterclaim (v) prays for an order compelling the claimant to negotiate and produce a condition of service for their junior associate staff; counterclaims (vi) and (vii) are in the alternative and relate to tax, NHF and pension remittances. Counterclaims (ii) and (iii) are claims for union rights as to right to participate in union activities, and to unionize. All of these claims relate to issues that qualify as collective labour disputes (trade disputes in the palace of the TDA). See Association of Senior Staff of Banks,Insurance and Financial Institutions (ASSBIFI) v. Union Bank of Nigeria Plc& 2 ors unreported Suit No. NIC/11/2007, the ruling of which was delivered on 24th January 2008. While agreeing with the defendants that a counterclaim is a separate and distinct case of its own, having a life of its own, the special nature of this Court warrants a different consideration. Consequently, can the defendants make these claims in a counterclaim in this Court where jurisdiction is both original and appellate depending on the issue(s) at stake? Alternatively put, given that the claimant activated the jurisdiction of this Court in terms of its original jurisdiction as to strikes under section 7(1)(b) of the NIC Act 2006 and section 254C(1)(c) of the 1999 Constitution, can the defendants file by way of counterclaim for matters that should only come under the appellate jurisdiction of this Court having not exhausted the processes of Part I of the TDA? In a number of cases, this Court held that the defendants cannot.
68. The first isNestoil Plc v. National Union of Petroleum and Natural Gas Workers [2012] 29 NLLR (Pt. 82) 90 NIC.This Court had held as follows:
The second issue is whether the defendant can counterclaim in the manner it did in this case. In other words, does this Court have original jurisdiction to entertain the counterclaim of the defendant? The rule is that where the original jurisdiction of this Court is activated in terms of the interpretation jurisdiction of the Court or a fortiori its jurisdiction on issues of strike, a counterclaim cannot be raised where issues that it relates to qualify as trade dispute. Here, the best course of action for the counterclaimant is to declare a trade dispute and exhaust the dispute resolution processes of Part I of the TDA before approaching this Court in its appellate jurisdiction. This principle can be gleaned from this Court’s decision in Eleme Petrochemicals v. Dr Morah Emmanuel [2009] 17 NLLR (Pt. 46) 81 at 106, which is as follows –
The complaint of the defendant in the counterclaim is one connected with his employment or non-employment, which makes it a trade dispute within the meaning of section 48 of the TDA.This means that the process of mediation, conciliation and arbitration in Part I of the TDA ought to have been exhausted by the defendant before filing the counterclaim. See Hotel & Personal Services Senior Staff Association v. Ikeja Hotel Plc & ors (unreported) Suit No. NIC/39/2008 delivered on 2nd July 2009 and Anthony Oyekanmi & Ors v. NITEL & Bureau of Public Enterprises (unreported) Suit No. NIC/7/2008 delivered on July 15, 2008. The interpretation jurisdiction of this court cannot be used to adjudicate the trial issues raised in the counterclaim. See Itodo v. Chevron Texaco [2005] 2 NWLR (Pt. 5) 200 at 222 – 223 and Hotel and Personal Services Senior Staff Association v. Tourist Company of Nig. Plc (unreported) Suit No. NIC/14/2002 delivered on October 27, 2004. We find that the counterclaim has not been properly raised and, therefore, the defendant cannot maintain his action against the claimant. We, therefore, hold that this court lacks original jurisdiction to entertain the counterclaim. The counterclaim is hereby struck out.
For this reason, therefore, in the instant case, we hold that the counterclaim of the defendant is premature. The Court lacks original jurisdiction to entertain it. It is accordingly struck out.
69. The second isChevron Nigeria Limited v. NUPENG & anor, unreported Suit No. NICN/LA/37/2010, the judgment of which was delivered on December 2, 2013.This Court held thus:
…I must state what this case is not about despite the troubles taken by the parties to draw the Court to an issue that cannot be heard by this Court as a Court of first instance. Section 7(3) of the National Industrial Court (NIC) Act 2006 is clear that certain matters can be made by the National Assembly to go through conciliation and arbitration before being heard by this Court in its appellate jurisdiction. In other words, those issues must go through the dispute resolution processes of Part I of the Trade Disputes Act (TDA) before being heard by this Court. One such issue is trade dispute. The claimant argued that there is no trade dispute between the parties. The 1st defendant did not seem to think so, hence its first issue is “whether the claimant and the 2nd defendant can refuse to recognize the workers of the 2nd defendant working for or seconded to work for and in the claimant’s company the right of membership of the 1st defendant”. The 1st defendant would later in paragraph 3.1.4 of its written address argue that this recognition issue is a trade dispute for which the Court has no original jurisdiction to entertain, calling on the Court to decline jurisdiction in respect of the whole case of the claimant. While I agree with the 1st defendant that this issue sufficiently qualifies as a trade dispute for which its determination must necessarily go through the dispute resolution processes of Part I of the TDA before it can be entertained by this Court (see Nestoil Plc v. National Union of Petroleum and Natural Gas Workers unreported Suit No. NIC/LA/08/2010 the judgment of which was delivered on March 8, 2012), that alone is not sufficient for the whole case of the claimant to be dismissed since the primary issue before the case is the legality or otherwise of the industrial action complained of. In consequence, all arguments in regard to the recognition dispute are hereby discountenanced for purposes of this judgment.
70. The third 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. This Court held as follows:
…the attempt by the parties to get this Court to determine issues relating to the termination of the named employees in the claimant’s relief d) and the defendant’s reliefs 1 and 7 of the counterclaims, and indeed the counterclaims of the defendant as a whole, is hereby resisted. The named employees were not brought before this Court in their individual capacities so as to activate the original jurisdiction of this Court. The defendant even in its written address had argued that it has a right to issue the notice of industrial action dated 16th May 2011 in contemplation of a trade dispute between it and the defendant over the unfair labour practices it is complaining of. In this wise, even the defendant acknowledges that the issues it is canvassing are trade dispute issues. By law, they are issues that ought to go through the processes of Part I of the Trade Disputes Act. See section 7(3) of the NIC Act 2006.
The issue activating the original jurisdiction of this Court is the strike threat/action going by section 7(1)(b) of the NIC Act 2006. On the authority of the two cases of Nestoil Plc v. NUPENG and Chevron Nigeria Limited v. NUPENG, therefore, I shall discountenance all arguments/submissions of the parties on issues not bordering on strike threat or action…
71. What all of this means is that this Court cannot hear the defendants’ counterclaim in its original jurisdiction. The counterclaims are on matters that the defendants ought to litigate through the processes of Part I of the TDA before coming to this Court in its appellate jurisdiction. Even when the defendants citedPatovilki Industrial Planners v. National Union of Hotels and Personal Services Workers Suit No. NIC/12/89 reported in the Digest of Judgments of National Industrial Court[1978 – 2006] at 288-289 and then submitted that this Court held that the denial of workers of the right to join a trade unionon the ground that they are temporary staff is unconstitutional, the defendants ought to have known that that decision was given by this Court in its appellate, not original, jurisdiction. As it is, therefore, the counterclaims of the defendants are prematurely before this Court and so are hereby struck out.
72. On the whole, and for the reasons given, the claimant’s case fails and so is dismissed; and the defendants’ counterclaims are premature and so are struck out.
73. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
