IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN (Ph.D)
DATE: 22rd February, 2018.
SUIT NO.: NICN/EN/13/2017
SUIT NO.: NICN/EN/14/2017
(By CONSOLIDATION)
TRADE DISPUTE NO: IAP/HB/3787
IN THE MATTER OF ENFORCEMENT OF INDUSTRIAL ARBITRATION PANEL’S AWARD UNDER SECTION 254 (4) OF THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA, 1999 (AS ALTERED)
BETWEEN:
AMALGAMATED UNIION OF PUBLIC COORPORATIONS,
CIVIL SERVICE TECHNICAL AND RECREATIONAL
SERVICES EMPLOYEES (AUPCTRE) ===JUDG. CREDITOR/RESP.
AND
- ANAMBRA STATE GOVERNMENT
- ANAMBRA STATE WASTE MANAGEMENT
AUTHORITY (ASWAMA) ===========JUDG. DEBTOR/APPL.
(Sued as ANAMBRA STATE ENVIRONMENT PROTECTION
AGENCY (ANSEPA) in the IAP Award in IAP/HP/3787
dated 26th March 2012)
REPRESENTATION:
- Akanni Esq. for the Judgment Creditor/Resp.
- Anumonye Esq. with C.B. Anyigbo Esq. for Judgment Debtor/Appl.
JUDGMENT
The judgment debtors/applicants by a motion on notice dated 27th March 2017 brought pursuant to section 6(6) of the 1999 constitution sought an order of this court:
Striking out Suit No NICN/EN/14/2017 – Amalgamated Union of Public Corporations Civil Services Employee (AUPTRE) V. Anambra State Government & Anor.
A similar motion seeking the same relief dated the 24th March, 2017 was filed in suit No. NICN/EN/13/2017 consolidated with Suit No:NICN/EN/14/2017 by order of this court made on the 5th February, 2018.
The grounds upon which both application is predicated are the same. In support of the application is an 18 paragraph affidavit and annexed to the affidavit is Exhubit AA (a writ in Suit No:A/454/2016 issued by Anambra State Hight court. The application is also supported by a written address of counsel.
The applicant in the motion in both suits contends amongst others that the Judgment Creditor/Applicant/Respondent lacks the locus standi to commence and maintain this suit. He also argues that the suit was not initiated by due process and that the suit is an abuse of court process. The Judgment Debtor/Applicant also contends that by the conduct of the Judgment Creditor/Applicant, it is estopped from laying any further claims against the Judgment Debtor/Respondent. In his written argument counsel for the applicant formulated 2 issues for determination to wit:
- Whether the honourable court has jurisdiction to hear the suit.
- Whether the suit is an abuse of court process.
In response to this application the Judgment Creditor/Respondent filed a counter affidavit of 12 paragraphs annexed thereto are Exhibit AUP-1, AUP-2 and AUP-3, the counter affidavit is also supported by the written address of the respondent counsel.
From the circumstances of this application this court is of the view that the issues for determination is
- Whether the commencement of this suit in this jurisdiction amounts to abuse of court process
- Whether this suit was commence in accordance with the procedure for enforcement of arbitral award in this court.
On the first issue, Learned counsel for the applicant Mr. O. Anumoye Esq. contend that this suit ought to have been instituted in Awka division of the court and relied on Order 2 Rule 1 of the NICN Rules 2017, because the Judgment Debtors are resident and carry on business in Awka. He argues that the cause of action also arose in Awka. He contends that the institution of this suit in Enugu amounts to forum shopping and urged the court to strike out this suit.
In response to the above argument the learned respondent counsel Abiodun Akanni Esq. argues that judicial division are established for administrative convenience and that Order 2 Rule 1 (1) of the rules of this court allows processes in respect of which this court is vested with jurisdiction to be filed in any registry of the court nearest to where the defendant or respondent resides or has presence or in which the defendant carries on business. Provided that where economic, security, environment or other exigencies warrant, an originating process may be filed in the courts registry in a judicial division other than that closest to the place of residence or business of the defendants or respondents. He relied on paragraph 8 of the counter affidavit to argue that filing this suit in Enugu division of the court was to forestall any intimidation of the parties. He further argues that even assuming but not conceding that this suit is filed in the wrong division it can still be heard in this division and relied on Order 2 Rule 3 (5) of the rules of this court.
I have carefully considered the argument espoused by counsel for the parties. I must first state that by Order 1 Rule 10(2) of the National Industrial Court Rules 2017 “All judicial divisions of the court shall be one for the purpose of instituting, commencing and proceeding on any matter within the jurisdiction of the court”
This is why Order 2 Rule 5 of the rules of this court states that “Where any suit is commenced in the wrong Judicial division, it may be tried in that division unless the president of the court otherwise directs.”
Therefore the entire Nigeria constitutes the territorial jurisdiction of the National Industrial Court. There cannot be forum shopping in the National Industrial Court. This court is unable to agree with the learned applicant’s counsel that this suit ought to be struck out because it was not filed in Awka division of this court. This court is in agreement with the position of the learned counsel for the Judgment Creditor/Respondent that this suit does not amount to abuse of court process by reason of its being filed in Enugu. I so hold.
On the 2nd issue “Whether this suit was commenced in accordance with the procedure for enforcement of Arbitral award in this court”. The learned applicant counsel argues that this suit was not initiated by due process. The initiation of this suit by motion on notice offend Order 3 Rule 7(i) of the NICN Civil Procedure Rules 2017 as there is no pending suit to sustain the motion and relied on the case of Grace Jack V. University of Agriculture Makurdi [2004] 5 NWLR (pt 865) Madukolu V. Nkemdilim [1962] 2 SCNLR 341.
He further contend that motion on notice is not one of the means of enforcing judgment of court or an award by a panel under the Sheriff and Civil Process Act. He also argues that this application being one for enforcement of award is regulated by Order 3 Rule 3 of the rules of this court which incorporates S. 254 C1 (J) (ii) and (iii) which deals with interpretation of award or order made by arbitral tribunal in respect of a trade dispute or a trade union dispute. And also (iii) award or judgment of the court.
This action ought to have been commenced by originating summons. He further argues that Order 47 Rule 29 of the rules of this court is not applicable to the instant case, that assuming but not conceding that Order 47 Rule 29 were applicable, the application for leave to enforce this award ought to be first made and leave obtained. The application for leave cannot come embaded in the same application to enforce the award. He argued that where leave is a pre-requisite for doing anything it must be first sought and obtained and relied on the case of Dr. Alex Otti & Anor V. Dr. Ogah & Ors [2017] LPELR, 41986 (SC) He urged the court to strike out this suit.
In response to these argument the learned counsel for the respondent contend that by the provision of S.254 (6) (4) of the 1999 Constitution as amended, envisages an application to be brought for the enforcement of an award and not an action. He argues that the application is properly brought by motion on notice as stipulated in Order 2 Rule 10 of the Judgment Enforcement Rules Cap S6 LFN 2004. He further argues that the correct way to initiate enforcement of arbitral award in this court is by motion on notice as specified by Order 17 Rule 3 (1) and 12 of the rules of this court and not by originating summons. Responding on point of law the applicant counsel argues that Order 2 Rule 10 of the judgment enforcement Rules is not applicable to the respondent application because it does not deal with enforcement of arbitral award but rather with enforcement of judgment.
I have carefully considered the argument of both counsels; first I must put the arguments of learned counsels for the parties to the legal litmus test to resolve the issue formulated by this court under consideration. Order 3 Rule 3 relied upon by the respondent/applicant counsel in holding that this application ought to be by originating summons provides
(3) Civil proceedings that may be commenced by way of originating summons include matters relating principally to the interpretation of any constitution, enactment agreements or any other instrument relating to employment labour and industrial relation in respect of which the court has jurisdiction by virtue of the provisions of S. 254 C.
By extension this includes S. 254 (C) J. (ii) and (iii) dealing with: (underlining mine)
(ii) Award or order made by an arbitral tribunal in respect of a trade dispute or trade union dispute.
(iii) Award or judgment of the court
This he argues brings the mode of enforcement of award under the originating summons procedure under Order 3 Rule 3. This court is unable to agree with this line of argument. It is trite principle of interpretation of statute that the express mention of one thing in a statute excludes all others not mentioned “expression unis est exclusion alterius”. See Jev Vs. Iyortom [2015] 15 NWLR (pt 1483) at 484 see also Azubuike Vs. Government of Enugu State [2014] 5 NWLR (pt 1400) 364.
Order 3 Rule (3) uses the phrase Interpretation of any constitution, enactment agreement or any other instrument relating to employment, labour and industrial relations. It is clear that even though enforcement of award and judgment are part of the jurisdiction conferred by S. 254 (C) (J) (ii) and (iii) of the 1999 Constitution as amended, it is not expressly mentioned in Order 3 Rule 3 as one of the items which proceeding can be commenced in this court by way of originating summons. If the rules had expressly intended that enforcement of award and judgment be brought by originating summons proceedings, it would have clearly mentioned same in Order 3 Rule 3. This position of the court is strengthened by the fact that the National Industrial Court Civil Procedure Rules 2017 have made clear provisions dealing with enforcement of arbitral award as we shall see in the further consideration of this issue. I therefore hold that the application for the enforcement of arbitral award such as brought by the Judgment Creditor/Respondent to this application is not one of the items under Order 3 Rule 3 of the rules of this court to be commenced by originating summons.
The Judgment creditor/respondent counsel has also argued that the application to enforce this award was properly commenced by motion as provided in Order 17 Rule 3 of the rules of this court and Order 2 Rule 10 of the Judgment Enforcement Rules Cap S6 LFN 2004. While this court is inclined to agree with the learned respondent counsel that an application to enforce an arbitral award which jurisdiction to entertain such an application is vested in this court by the provisions of S. 254 C (4) of the constitution of the Federal Republic of Nigeria as amended, must be brought by motion. The question is what kind of motion should commence an application to enforce an arbitral award? And what procedural step must an applicant follow in commencing an action to enforce an award. This question is very material in determining whether the motion to enforce the award dated 13th February, 2017 and filed on the 17th February 2017 in Suit No: NICN/EN/13/2017 and Suit No: NICN/EN/14/2017 which the present Judgment Debtor/Applicant seeks the order of this court to strike out is proper before this court and can be the process this court can look at in determining the enforcement of the arbitral award in Trade Dispute No IAP/HB/3787. I recall that on this issue the learned counsel for the applicant had argued that assuming Order 47 Rule 29 of the rules of this court were to be applicable in this case the Judgment Creditor/Respondent failed to first seek leave of court before bringing the motion to enforce the award and that the application for leave to enforce an award cannot be lumped up in the main application to enforce the award and cited the case of Dr. Alex Otiti & Anor V. Dr. Ogah & Ors “supra”
The National Industrial Court Rules 2017 has made very express and distinct provisions for the enforcement of award. Order 17 Rule 3 provides
3 – (1) Every notice to enforce an arbitral award shall state the grounds of the application and where any such motion is founded on evidence by affidavit a copy of the affidavit shall be served with the notice of motion.
(2) The party relying on an award on applying for its enforcement shall supply a certified true copy of the award.
(3) An award made by an arbitrator may, by leave of the court, be enforced in the same manner as a judgment or order of court
The above provision especially Rule 3 sub (3) compels an enquiry into the manner or how a judgment of this court is enforced. This enquiry must lead to Order 47 dealing with “Judgment and Orders”.
Order 47 Rule 29 (2) which provides.
1) The application for leave shall be made ex-parte to the court and shall be accompanied by:
- a)a statement setting out the name and description of the applicant:
- b)the judgment, ruling or order to be enforced with details and particulars.
- c)an affidavit in support
2) No application for enforcement of the judgment Ruling or order shall be made unless the leave of court has been obtained in accordance with the rules of this court.
A community reading of the above set out rules shows that an arbitral award may be enforced by leave of court in the same manner as a judgment or order of this court or of a court of foreign jurisdiction only by the leave of court first sought and obtained. The law is well settled and is that where a rule of court requires leave for the doing of any act such leave must first be sought and obtained before any further procedural stops be taken in the matter. See Dr. Alex Otiti & Anor V. Dr. Ogah & Ors “Supra”
I have examined the two motion dated 13th February, 2017 and filed on the 17th February, 2017. The 1st prayer on the motion paper is an application for leave. Order 47 Rule 29 (2) requires such application to be made ex-parte. It is the view of this court that the application for leave ought not to have been lumped up with the motion to enforce the award.
The non compliance with Order 47 Rule 29 (2) cannot be treated as a mere procedural irregularity or non compliance because of the mandatory requirement of Order 29 Rule (3) which makes it mandatory to obtain leave before enforcement of judgment by reason of the use of the word “shall” in the text of that rule see Baimayi (Rtd) Vs. AG. FED & 3 Ors [2001] 7 NSCQR 598 at 617 para D – E. I agree with the learned applicant counsel that the judgment creditor/respondent ought to have obtained leave before bringing the motion to enforce this award. In the circumstances this court holds that the two motions dated 13th February, 2017 and filed on the 17th February, 2017 are incompetent and are hereby struck out.
I make no order as to cost.
Ruling entered accordingly.
Hon. Justice I.J. Essien Ph.D
(Presiding Judge)
