Amalgamated Union of Public Corporations, Civil Service VS ATTORNEY GENERAL OF THE FEDERATION AND ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: JULY 09, 2018 SUIT NO: NICN/YEN/126/2016

BETWEEN:

AMALGAMATED UNION OF PUBLIC CORPORATIONS

CIVIL SERVICE TECHNICAL AND RECREATIONAL CLAIMANTS

SERVICE EMPLOYEES

AND

ATTORNEY GENERAL OF THE FEDERATION
MINISTER OF LABOUR AND EMPLOYMENT DEFENDANTS
NIGER DELTA DEVELOPMENT COMMISSION
ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA

APPEARANCE

Christopher Asia Fiti Esq appearing with Success A. Emebu – Osajeh Esq for the 3^rd Defendant.

Abiodun Akanni Esq appearing for the 4^th Defendant.

1^st and 2^nd Defendants not represented.

JUDGMENT

The Claimant approached this court vide Originating Summons pursuant to Section 254C (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and Order 3 Rule 5 (A) (1) & (2) of the National Industrial Court Rules, 2007 (Now Order 3 Rule 1 (b) of the N.I.C.N (Civil Procedure) Rules, 2017). The Originating Summons is dated 1^st July, 2016 and filed on the same date; filed alongside is a twenty paragraphs Affidavit in Support of the Application and a Written Address. And attached with the application are six annexures (Exhibit A – F).

The Applicant set out the following questions for determination as follows:

In view of the provisions of Sections 7 (1) and 10 of the Trade Unions Act (Amendment) Act, 2005, which expressly deleted the entire original Section 33 of the Trade Unions Act (as amended), particularly Section 33 (3) thereof, and renumbered the existing Sections 34 to 54 of the Act as Sections 33 to 53 respectively, is/are there any extant Section(s) of the Trade Unions Act (as amended) providing for the jurisdictional scope of the Claimant, or any other Trade Union in Nigeria?

In view of the provisions of Sections 7 (1) and 10 of the Trade Unions Act (Amendment) Act 2005, and the consequent deletion of the entire provisions of the original Section 33 of the Trade Unions Act (as amended) particularly Section 33 (3) thereof, which created Part B of the Third Schedule to the Act, is the jurisdictional scope of the Claimant and other Trade Unions in Nigeria, as hitherto provided for in Part B of the Third Schedule to the Act, still in force?

Having, in compliance with the provisions of Section 7 (1) of the Trade Unions Act (Amendment), Act 2005, deleted the entire provisions of the original Section 33 of the Trade Unions Act, particularly Section 33 (3) thereof (which created Part B of the Third Schedule to the Act) in the updated Edition of the Laws of the Federation of Nigeria, 2004, does the 1^st Defendant have any legal basis or justification to still retain the provisions of Part B of the Third Schedule to the Act, as part of the Trade Unions Act (as amended), Cap T14, in the Laws of the Federation of Nigeria 2004?

If the answers to questions (1), (2) and (3) are in the negative, is there any statutory or legal basis for the Defendant to rely on the extinct provisions of Part B of the Third Schedule to the Trade Unions Act (as amended) to classify the Claimant as a Junior Staff Trade Union, whose membership is limited to only “Junior Staff employed in the Federal and State Corporations; Civil Service Employees classified as Technical; Workers of Sports Commissions and Stadia; Public Recreation Clubs by whatever name called; Swimming Pools, Amusement Centres including Carnivals, Circuses, Zoological Gardens and service similarly classified, excluding Radio, Television, NITEL, NIPOST, Railways, Nigeria Airways and other corporation workers already unionized” as contained in the 2^nd Defendant’s letter to the 3^rd Defendant, dated 16^th June, 2016?

If the answer to question (4) is in the negative, is there any legal justification or basis for the directive of the 3^rd Defendant contained in its letter of 10^th June, 2016, to the Claimant’s Joint Staff Consultative Forum, NDDC Branch, to the effect that “in accordance with the Third Schedule of the Trade Union Act,” the jurisdictional scope of the Claimant covers only the 3^rd Defendant’s Junior Staff who are on Grade Level 06 and below, while the jurisdictional scope of the 4^th Defendant covers Senior Staff of the 3^rd Defendant who are on Grade Level 07and above?

If the answer to questions (4) and (5) are in the negative, and particularly in view of the combined provisions of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 12 (4) of the Trade Unions Act (as amended), is there any legal justification to deny any staff of the 3^rd Defendant who voluntarily desires to join the Claimant as a member, the right of admission to the membership of the Claimant by reason only that such a staff of the 3^rd Defendant is a Senior Staff on Salary GL 07 or above, and can only belong to the 4^th Defendant?

If the answers to questions (1), (2), (3), (4), (5) and (6) are in the negative, the Claimant claims the following reliefs:

A DECLARATION that by virtue of the provisions of Section 7 (1) and 10 of the Trade Unions Act (Amendment) Act 2005, which expressly deleted the original Section 33 of the Trade Unions Act (as amended), particularly Section 33 (3) thereof, there is/are no extant Section(s) of the Trade Unions Act (as amended) providing for the jurisdictional scope of the Claimant or any other Trade Union in Nigeria.

A DECLARATION that in view of the provisions of Sections 7 (1) and 10 of the Trade Unions Act (Amendment) Act, 2005, and the consequent deletion of the entire provisions of the original Section 33 of the Trade Unions Act (as amended) particularly, Section 33 (3) thereof, which created Part B of the Third Schedule to the Act, the jurisdictional scope of the Claimant and other Trade Unions in Nigeria, as hitherto provided for in Part B of the Third Schedule to the Act, is no longer in force.

A DECLARATION that having complied with the provisions of Section 7 (1) of the Trade Unions Act (Amendment) Act, 2005 by actually deleting the entire provisions of the original Section 33 of the Trade Unions Act (as amended) particularly Section 33 (3) thereof, which created Part B of the Third Schedule to the Act, in the updated Edition of the Laws of the Federation of Nigeria, 2004, the 1^st Defendant does not have any legal basis or justification to still retain the provisions of Part B of the Third Schedule to the Act as part of the Trade Unions Act (as amended), Cap T14 Laws of the Federation of Nigeria, 2004.

A DECLARATION that there is no statutory or legal basis for the 2^nd and 3^rd Defendants to rely on the extinct provisions of Part B of the Third Schedule to the Trade Unions Act (as amended) to classify the Claimant as a Junior Staff Trade Union, whose membership is limited only to Junior Staff employed in the Federal and State Corporations; Civil Service employees classified as Technical; Workers of Sports Commissions and Stadia; Public Recreation Clubs by whatever name called; Swimming Pools, Amusement Centers including Circuses, Zoological Gardens and Services similarly classified, excluding radio, Television, NITEL, NIPOST, Railways, Nigeria Airways and other corporation workers already unionized.

A DECLARATION that by the combined provisions of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 12 (4) of the Trade Unions Act (as amended), there is no legal justification to deny any staff of the 3^rd Defendant who voluntarily desires to join the Claimant as a member, the right of admission to the membership of the Claimant by reason only that such a staff of the 3^rd Defendant is a Senior Staff on Salary GL 07, or above, who can only belong to the 4^th

A FURTHER DECLARATION that eligibility to the membership of the Claimant is not determined by the cadre or Salary Grade Level of a worker or whether the worker is a Junior or Senior Staff, but by the voluntary desire of such a worker and the Constitution of the Claimant.

A MANDATORY ORDER of this Honourable Court directing the 1^st Defendant, the Attorney General of the Federation, to remove or cause to be removed forthwith, from the Laws of the Federation of Nigeria, particularly the Trade Unions Act (as amended), the deleted Part B of the Third Schedule to the Act which has been wrongly retained by him in the Laws of the Federation after same had been deleted by the provisions of the Trade Unions Act (Amendment) Act, 2005.

A FURTHER ORDER directing the 1^st Defendant to renumber or cause to be renumbered properly, the provisions of the Trade Unions Act (as amended) in line with the provisions of the Trade Unions Act (amendment) Act 2005.

AN ORDER of this Honourable Court setting aside the directives of the 2^nd and 3^rd Defendants as contained in their respective letters of 16/06/16 and 10/06/16 to the effect that the jurisdictional scope of the Claimant covers only the staff of the 3^rd Defendant on Salary Grade Level 06 and below, while the jurisdictional scope of the 4^th Defendant covers staff of the 3^rd Defendant on Salary Grade Level 07 and above.

AN ORDER OF PERPETUAL INJUNCTION restraining the 2^nd and 3^rd Defendants, their agents, privies and person or authorities acting for or through them from interfering with the membership issues of the Claimant or determining who amongst the staff of the 3^rd Defendant should or should not become a member of the Claimant or the 4^th Defendant save as may be permitted by the law.

Cost of this action.

THE CASE OF THE CLAIMANT

The Claimant is a Trade Union duly registered under the provisions of the Trade Unions Act (as amended), being one of the twenty nine (29) Trade Unions that were either restructured or merged in 1996, following the enactment of the Trade Unions (Amendment) Act (No. 4) of 1996. The Claimant came into being as a result of amalgamation of three (3) existing Trade Unions in Nigeria namely; Civil Service Technical Workers Union of Nigeria; National Union of Public Corporations Employees, and Recreational Service Employees Union. And irrespective of cadre or Salary Grade Level in the service every worker in the concerned establishments may voluntarily join the Claimant if he/she so desires irrespective of whether that worker is a Senior or Junior Staff of the 3^rd Defendant a position that the 3^rd Defendant is not comfortable. The 3^rd Defendant now restricts the membership of the Claimant to its junior staff only and also sought to move the Senior Staff membership of its commission to the 4^th Defendant. The Claimant then filed this action before this court for the interpretation of Sections 7 (i) and 10 of the Trade Unions Act (Amendment) Act, 2005, Section 33 of the Trade Unions Act (as amended). And also to determine the questions set out in Paragraph 1 to six (6) of this application.

The 3^rd Defendant filed an application on the 5^th September, 2016 for extension of time within which to file and serve Memorandum of Appearance, Counter Affidavit and a Written Address; which the said application was moved and granted. The 4^th Defendant also filed an application dated 29^th September, 2016 for extension of time within which to file Memorandum of Appearance and Counter Affidavit in opposition to the Originating Summons; which the said application was moved and granted. And which the Claimant equally replied on Points of Law on all the processes filed by both the 3^rd and 4^th Respondents. The 1^st and 2^nd Defendants failed to enter appearance nor filed any process.

THE 3^RD DEFENDANT’S PRELIMINARY OBJECTION

The 3^rd Defendant/Applicant filed a Motion on Notice dated 31^st October, 2017 and filed on the same date. The 3^rd Defendant/Applicant is praying to this court for an order striking out and or dismissing this suit for want of jurisdiction. And the grounds upon which this application is predicated are:

The Claimant/Respondent had prior to the filing of this suit, instituted Suit NICN/AB/166/2016 between Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees Vs. Attorney General of the Federation & 2 Ors, praying substantially for the same reliefs with this suit.

The facts relied upon and the issues raised by the Claimant/Respondent in Suit No. NICN/AB/166/2016 are virtually the same with the instant

This suit was filed during the pendency of the above suit and it is still pending at the Abuja division of this Honourable Court.

The aim of the above suit and the instant suit are the same.

In the circumstances thereof, this instant suit is an abuse of court/judicial process.

Pursuant to the above, this Honourable Court lacks jurisdiction to entertain this suit.

It will be in the best interest of justice to grants the reliefs sought.

The Motion is supported by six paragraphs affidavit and one annexure (Exhibit NNDC A) and a written address. In the address the 3^rd Defendant/Applicant formulated a lone issue for determination as follows:

Whether this instant suit filed to achieve the same aim with that of Exhibit “NNDC A” is not an abuse of court/judicial process and thus liable to be struck out or dismissed?

Learned Counsel to the Applicant submitted that the Claimant/Respondent commenced this suit vide an Originating Summons on the 1^st of July, 2016. Before the filling of this suit, the Claimant/Respondent had filed a similar matter ie Exhibit “NNDC A” before the Abuja Division of this Honourable Court on the 9^th of May, 2016. And that the reliefs sought, the facts relied upon and the issues raised in Exhibit “NDDC A” are radically the same with the instant suit. Refers to Paragraphs 3 (b) (c) (d) (e) and (f) of the Supporting Affidavit. And that this suit was filed while Exhibit “NDDC A” is pending and it was filed to achieve the same aim and purpose. Pursuant to the above thereof, it is counsel’s submission that this suit constitutes an abuse of court/judicial process. On the ground that both processes were filed to achieve the same aim and purpose.

That the concept of abuse of judicial/court process is imprecise. It involves circumstances and situations of infinite variety and conditions. One of its common features is the improper use of judicial process by litigants. Cited CBN VS. AHMED (2001) 11 NWLR (PT. 724) 369 at 409 PARAS A – G. Submit further that one component of abuse of judicial process is where two processes are used concurrently in respect of the exercise of the same right. Cited CBN VS. AHMED (SUPRA) AT 409 PARA. F. In other words, where a party initiates two concurrent proceedings asking for virtually the same relief, the last processes (in this case, this suit constitute an abuse of court and must be dismissed. Cited CEDAR STATIONERY PRODUCTS LTD VS IBWA LTD (2000) FWLR (PT. 25) 1710 at 1724 paras. H; also in EGWASIM & ANOR VS. OJICHIE & ANOR (2004) 10 NWLR (PT. 882) 613 AT 624, the Supreme Court per Tobi JSC (then) added thus;

“A Litigant has no right to pursue pari passu two processes which will have the same effect in two courts at the same time, with a view to obtaining victory in one of the processes or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps”

Also cited the case of ACB PLC VS. NWAIGWE & 2ORS (2011) 1 – 2 SC(PT.II) 67 AT 81 – 82 PARAS. 25 – 5.

Learned Counsel further submitted that the apex court just recently held in PDP VS SHERIFF & 4 ORS (2017) 6 – 7 SC (PT. 1) 105 at Lines 5, that once the aim of the suits are to produce the same result, as in this case, the later in time is an abuse of process and thus liable to be struck out even if they are differently worded.

That it is clear therefrom from the above authorities of the apex court that it does not matter whether the issues in the two processes in question are different. What matter most is the aim of the two processes in question. And that it is not in contest that the aim of Exhibit “NNDC A” and the instant is the same ie an order directing the Attorney-General of the Federation to remove or cause to be removed forthwith, from the Laws of the Federation of Nigeria, the Trade Unions Act (as amended), the deleted Part B of the Third Schedule to the Act which has been wrongly retained by him in the Laws of the Federation after same had been deleted by the provisions of the Trade Unions (Amendment) Act 2005 amongst others. Cited Relief II at Page 4 of Exhibit “NNDC A” and Relief VII at Pages 4 – 5 of the instant suit. This suit in the circumstances, is bound to fail and respectfully urge this court to so hold. Also cited ALI VS ALBISHIR (2008) 3 NWLR (PT. 1073) 94 AT 143 PARAS A – C; MIN. FOR WORKS & HOUSING VS. TOMAC (NIG) LTD (2002) 2 NWLR (PT. 752) 740.

Submit further that the little alteration of the parties in both suits will not help the claimant/respondent in view of the position of the law. The law is now settled that a slight difference in parties in two suits does not excuse a suit from being an abuse of court process provided the aim of the two suits is the same. See JIMOH VS. STARCO (NIG) LTD (1998) 7 NWLR (PT. 558) 523 AT 534 – 535 PARAS E – B. That in the instant case, the addition of the 3^rd and 4^th Defendants to this suit does not derogate it from being an abuse of court process. The compelling factors the court looks at to determine an abuse now, is the aim of the two suits. Once the aim is the same, as in this case, the later suit constitutes an abuse and thus liable to be struck out. And that once a court is satisfied that a process before it as in this case, is an abuse of court process, it has the power and indeed the duty to dismiss it. Cited CBN VS AHMED (SUPRA) At 390 PARA F.

In the light of the above, the Applicant urge this court to resolve this issue in favour of the 3^rd Defendant/Applicant against the Claimant/Respondent and strike out or dismiss this suit.

CLAIMANT/RESPONDENT’S REPLY TO THE MOTION ON NOTICE FILED BY THE 3^RD DEFENDANT/APPLICANT

The Claimant/Respondent in opposing this application filed a 6 Paragraphs Counter Affidavit, a Written Address and also attached 4 annexures (Exhibits A –D) which this court adopted pursuant to Order 45 Rule 7 of the Rules of this court in the absence of counsel to the Claimant/Respondent.

In the Written Address, the Learned Counsel to the Respondent formulated a lone issue for determination, that is whether this Honourable Court has the jurisdiction to entertain the Claimant’s suit?

The Learned Counsel submitted that this Honourable Court has the jurisdiction to entertain the Claimant’s suit and the Applicant has not disclosed any disqualifying factor(s) that robs the Honourable Court of the jurisdiction to entertain the matter. On the face of its Motion on Notice, the 3^rd Defendant/Applicant prays the Honourable Court for an order striking out the present suit for want of jurisdiction. However, in arguing its application, the Applicant abandoned the prayer on its motion paper and the question of jurisdiction, to canvass the point that the Claimant’s case constitutes an abuse of the process of this Honourable Court. It is settled law that both the Applicant and the court are bound by the prayers on the Applicant’s Motion paper. Cited the case of MULTIBRAS S/A ELECTRODOMESTICOS VS. P.Z CO. PLC UK (2006) 13 NWLR (PT. 997) 420 AT 429.

Thus, the Applicant herein is not entitled to abandon the question of jurisdiction raised in its Motion to argue an issue that does not affect the jurisdiction of this court. That abuse of court process is not the same as want of jurisdiction. Abuse of court process lies in the improper use of court processes by a party to the irritation or annoyance of his opponent, like in the institution of multiple cases against the same parties, on the same subject matter and on the same issues, in different courts.

On the other hand, to say that a court lacks the jurisdiction to entertain a matter means that one or more of the features listed by the Supreme Court in the evergreen case of MADUKOLU VS NKEM DILIM (1962) NSCC 374 AT 379 – 380 is/are missing. That abuse of court process therefore is not the same thing as want of jurisdiction in the court to entertain a matter. The Respondent urged this court to hold that the Applicant having abandoned the prayer in its motion, to argue abuse of court process, the application should be deemed abandoned and struck out. On whether the Claimant’s case is an abuse of court process, Counsel submitted that to constitute an abuse of court process, there must have been a multiplicity of actions on the same subject matter against the same opponent on the same issue. Cited the case of SARAKI VS KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 188; CBN VS AHMED (2001) 11 NWLR (PT. 724) 369 AT 409 – 410; OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659 AT 681, UMEH VS IWUH (2008) 8 NWLR (PT. 1089) 225 AT 243 TO 244.

That in the present case, a cursory look at the Applicant’s Exhibit “NNDC A” clearly shows that the parties in that suit and the present suit are not the same. Only the 1^st and 2^nd Defendants herein are parties to the suit in Applicant’s Exhibit NNDC A. Interestingly, the Applicant’s herein who is complaining of abuse of court process is not and could never have been a party to the suit. The Registrar of Trade Unions (3^rd Defendant in Applicant’s Exhibit “NNDC A”) who wrote the Memo that led to the commencement of the suit is not a party in the present suit. Equally, the 4^th Defendant in the present suit is not a party in Exhibit “NNDC A”. That not being a party to Suit No: NICN/ABJ/166/2016, the Applicant herein cannot raise the issue of abuse.

The Respondent further contended that from Applicant’s Exhibit “NNDC A”, the subject matter of Suit No. NICN/ABJ/166/ 2016 is the restriction of the Claimant’s Union activities in the National Insurance Commission, Abuja, Federal Capital Territory, as conveyed in the letter of the Honourable Minister of Labour and Productivity dated 7^th April, 2016, and the attached Memo of the Registrar of Trade Union. Refers to Claimant’s Exhibits “A” and “B” to the Counter Affidavit. And also the facts contained in paragraphs 6 to 12 of the Affidavit in Support of the Originating Summons, in Applicant’s Exhibit “NNDC A”. It was the letter of 7/4/16 by the Hon. Minister of Labour, addressed to the Commissioner, National Insurance Commission Abuja, which was received by the Claimant on the 8/4/16 that save the Claimant the right of action to commence Suit No. NICN/ABJ/166/16, to protect her interest as well as that of her members in the employment of the National Insurance Commission Abuja. That was after their demand in Exhibit “C” was not heeded to by the Minister. That in the present case pending before this court, the subject matter of the Claimant’s case is the Applicant’s letter of 10^th day of June 2016 written to the Claimant’s members in its employment. Refers to Exhibit “D”. Thus, it is the Applicant’s letter (Exhibit “D”) that gave the Claimant the cause of action to commence the present suit to protect the interest of the Claimant and her members that had come under attack by the Defendant/Applicant vide Exhibit “D”.

Therefore it goes without saying that the facts that led to the commencement of the two cases are distinct and different. The separate causes of action arose differently, at different places and at different times. That bringing the two actions to protect its rights and that of its members that had come under two separate attacks, on two different dates, in two different commissions namely; the National Insurance Commission, Abuja FCT, and the Niger Delta Development Commission, Abuja, FCT, and the Niger Delta Development Commission, Port Harcourt, Rivers State, is within the constitutional right of the Claimant and cannot be an abuse of court process. That the Applicant has not demonstrated how the present suit is intended to harass, irritate or annoy it, more so, when it is not a party to the suit pending in Abuja, and the cause of action and the facts of the two cases are different. The case in Abuja does not in any way affect the Applicant. Urged to overrule the Applicant’s submission and dismiss the motion, as the Claimant’s case is not an abuse of court process.

Further submitted that it is not even the law that once a party files two actions in respect of a subject matter there is an abuse of court process. That in CHRISTIAN OUTREACH MINISTRIES IND. & ORS VS. COBHAM (2006) 15 NWLR (PT. 1002) 283 AT 305 the Court stated the law thus;

“It is not the law that once a party files another suit before another court on the subject matter, there is an abuse of process. An act can give rise to different suits. A subject matter may very well give rise to different rights.”

Where as in this case, the two suits are founded on separate and distinct causes of action, the institution of more than one suit cannot amount to an abuse of court process. Refers to the case of NDIC VS UNION BANK OF NIGERIA PLC (2005) 12 NWLR (PT. 1473) 246 at 303.

Finally the Respondent urged this court to hold that the present action by the Claimant is not an abuse of the process of this Honourable Court.

THE RESPONDENT/APPLICANT’S REPLY ON POINTS OF LAW

The Respondent/Applicant filed a Reply on Points of Law dated 14^th November, 2017 and filed on the 21^st November, 2017, where the Applicant contended that at paragraphs 4.02 – 4.04 of the Written Address, the Claimant contended that the issue of abuse of court process does not affect the jurisdiction of this Honourable Court to entertain this matter. It is the contention of the Applicant that the above position canvassed by the Claimant is wrong in law. It is settled law that the issue of abuse of court process is jurisdictional. In fact, in LADOJA VS AJIMOBI (2016) 10 NWLR (PT. 1519) 87 AT 131 PARA F, the Supreme Court per Ogunbiyi JSC declared;

“The summary and conclusion from the foregoing authority is obvious, that is to say the concept of abuse of court process is serious and fundamental as it goes into the jurisdiction of the court”

Also cited DINGYADI VS INEC (No. 1) (2010) 18 NWLR (PT. 1224) 1 AT 23.

It is also the submission of the Applicant that the Claimant contended at Paragraphs 4.05 to 4.15 of her Written Address that this suit is not an abuse of court process simply because the parties and the facts leading to the two suits are not the same. That it should be noted that the issue of abuse of court process has graduated from the same party, issues and subject matter to the aim of the two suits. The current trend as shown in the recent cases of the Apex Court, is that once the two suits are to produce the same result, the later suit irrespective of difference in parties constitute an abuse. Refers to the case of ACB PLC VS. NWAIGWE & 2 ORS (SUPRA) AT 81 – 82. Also in the recent case of PDP VS SHERIFF & 4 ORS (SUPRA) at 143 Lines 5, the Supreme Court held that once the aim of the suits are to produce the same result, as in this case, the later in time is an abuse of process and thus liable to be struck out even if they are differently worded. In the instant case, both suits bother on the jurisdiction of the Claimant/Respondent to unionize staff of the various Organizations in question. The result of Exhibit NNDC A will take care of the instant suit.

Furthermore, it is the law that a little variation of the parties in both suits does not stop the later suit from being an abuse of court process. Cited JIMOH VS. STARCO (NIG) LTD (SUPRA) AT 534 – 535 PARAS E – B.

Finally, the Applicant urged this court to resolve all the issues in favour of the 3^rd Defendant/Applicant against the Claimant/Respondent and strike out or dismiss this suit. The 1^st, 2^nd and 4^th Defendants/Respondents did not file any process with regard to this application.

COURT’S DECISION

I have carefully read and understood all the processes filed by the Learned Counsels to both the Claimant and the Respondents. I have equally perused and analysed the averments contained in both the Supporting and Opposing Affidavits. In addition, I heard the Oral Arguments canvassed by both Counsels and also carefully evaluated all the Exhibits. Having done all these, let me first determine the Preliminary Objection filed by the 3^rd Defendant/Applicant which borders on jurisdiction. And in other to effectually and effectively determine that, I formulated a lone issue for determination as follows:

“Whether or not this instant suit filed by the Claimant/Respondent amounts to an abuse of court/judicial process taking into consideration with that of Exhibit “NNDC A” (NICN/ABJ/166/2016) and thus liable to be struck out or dismissed.”

The concept of abuse of judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. See UGESE VS SIKI (2007) 8 NWLR (PT. 1037) PG 452. It is worthy to note that abuse of court process consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and also interfere with administration of justice such as instituting different actions between the same parties simultaneously in different courts even though on different grounds, or where two similar process are used in respect of the exercise of the same right. See OGOEJEOFO VS OGOEJEOFO (2006) 3 NWLR (PT. 966) PG 205 S.C.

Furthermore, the circumstances that will give rise to abuse of court process includes;

Instituting a multiplicity of action against the same opponent on the same issues or a multiplicity of actions on the same matter between the same parties even where there exist a right to begin the action.

Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.

Where two similar processes are used in respect of the exercise of the same

Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by a lower court.

Where there is no law supporting a court process or where it is premised on frivolity or recklessness.

See A.N.P.P VS HARONA (2003) 14 NWLR (PT. 841) PG 546; DINGYADI VS INEC (2010) 49 WRN PG 7 RATIO 4; SEVEN UP BOTTLING CO. LTD VS ABIOLA & SONS BOTTLING CO. LTD. (1996) 7 NWLR (PT. 463) AT PG 714; PARVEX INT’L CO. LTD VS I.B.W.A (1994) 5 NWLR (PT. 347) PG 685.

Having said all these, I have carefully analysed Exhibit “NNDC A” which is a suit filed by the Claimant against the Attorney General of the Federation, Minister of Labour and Productivity and the Registrar of Trade Unions before the Abuja division of this court. In fact, the suit was filed on behalf of the Claimant by the same counsel one HARRISON N. UGWUALA ESQ of H.N UGWUALA & PARTNERS who is also the same Counsel who instituted this matter before this court on behalf of the Claimant. And upon a cursory look at Paragraphs 1 – 5 of the Originating Summons and the reliefs sought as contained in Exhibit “NNDC A” and when compared same with the present suit one can see that it all borders on the declaratory reliefs being sought by the Claimant/Respondent as to the interpretation of the provisions of Section 7 (1) and 10 of the Trade Union (Amendment) Act 2005 and the deletion of Section 33 of the Trade Union Act (as amended) regulating the jurisdictional scope of the Claimant or any other Trade Union in Nigeria, as hitherto provided for in Part B of the Third Schedule to the Act, is no longer in force. And also an order of this court directing the 1^st Defendant (Attorney General of the Federation), to remove forthwith, from the Laws of the Federation of Nigeria, particularly the Trade Union Act (as amended), the deleted Part B of the Third Schedule to the Act which has been wrongly retained in the Laws of the Federation of Nigeria after same has been deleted by the provisions of the Trade Unions Act (Amendment) Act, 2005. And also to order the 1^st Defendant to renumber or caused to be renumbered properly, the provisions of the Trade Unions Act (Amendment) Act, 2005. And its trite that abuse of court/judicial process involves situation where two processes are used concurrently in respect of the exercise of the same right. See C.B.N VS AHMED (2001) 11 NWLR (PT. 724) 369 AT 409 PARAS A – G.

It should be noted that the reliefs sought, the facts relied upon and the issues raised in Exhibit “NDDC A” and the present suit are radically the same. See paragraphs 3 (b) (c) (d) (e) and (f) of the Supporting Affidavit. And this suit was filed while Exhibit “NNDC A” is pending before the Abuja division of this court and it was filed to achieve the same aim and purpose. And any pronouncement made by either this court or the Abuja division of this court where Exhibit “NNDC A” is pending will have an effect on either case. See CEDAR STATIONARY PRODUCTS LTD VS I.B.W.A LTD (2000) FWLR (PT. 25) 1710 AT 1724 PARAS H.

Furthermore in EGWASIM & ANOR VS OJICHIE & ANOR (2004) 10 NWLR (PT. 882) 613 at 624 the Supreme Court per Tobi JSC held as follows:

See also P.D.P VS SHERIFF & 4 ORS (2017) 6.7 SC (PT. 1) 105 AT 143 LINES 5; where the court held that once the aim of the suit are to produce the same result, as in this case, the later in time is an abuse of court process and thus liable to be struck out even if they are differently worded. See the dictum of RHODES VIVOUR, J.S.C IN P.D.P VS SHERIFF & 4 ORS (SUPRA).

The Claimant counsel made heavy weather on the fact that the parties are not the same and also that the cause of action arose at different place and time; it’s instructive to note that although the cause of action arose at different places and time, having examined Exhibits A – D filed by the Claimant and Exhibits “NNDDC A” filed by the 3^rd Defendant/Applicant one can see that the aim of both suits is the same. The Claimant want a declaration of this court as to the legality or otherwise of Part B of the Third Schedule to the Trade Unions Act (Amendment) Act 2005 which is still being retained in the Laws of the Federation of Nigeria after same had been deleted by the provisions of the Trade Unions (Amendment) Act 2005. And once the purpose and aim of two simultaneous suit is the same, then the later suit is bound to fail as same is an abuse of the process of this court. See ALI VS ALBISHIR (2008) 3 NWLR (PT. 1073) 94 AT 143 PARAS A – C.

I have also carefully analysed the authorities cited by Counsel to the Claimant, OKAFOR VS A.G ANAMBRA STATE (SUPRA), UMEH VS IWU (SUPRA), N.D.I.C VS UNION BANK (SUPRA) and its my ardent view that the said cases are distinguishable from the one at hand. And the case of P.D.P VS SHERIFF & 4 ORS (SUPRA) which was decided in 2017 is more recent than all the cases cited by the Learned Counsel to the Claimant.

Furthermore, to buttress my point that the issues are the same which even Learned Counsel to the Claimant admitted same in his letter to the President of this Court dated 8^th January, 2018 where the Learned Counsel to the Claimants stated as follows:

“We must humbly my lord, apply for the transfer of Suit No: NICN/YEN/126/2016 pending before the Yenagoa Division of the Honourable Court to the Abuja division for same to be consolidated with Suit No. NICN/ABJ/166/2016 and heard together by the Abuja division of the Honourable Court, where all the parties, except one (NNDC), are the same. My lord, although the causes of action leading to the filing of the two cases arose at different times in the two judicial divisions of the court, the principal question for determination in the two matters is the same, namely; the interpretation of the deletion of Section 33 of the Trade Unions Act by Section 7 of the Trade Unions (Amendment) Act, 2005 and its effect on the provisions of Part B of the Third Schedule to the Act. Thus, both matters can be most conveniently determined at the same time, by the same Judge of the Honourable Court. This application is necessary not only to save time and cost, but more importantly to avoid possible conflicting interpretation of the question of law involved in the two matters by the Judges of the two division of the court.”

From the wordings of this letter its apparent that the Learned Counsel had admitted earlier that the issues are the same even though arose at different times and the parties are also the same except one. And it was on the basis of this letter that this court adjourned this matter to 9^th April, 2018, 3^rd May 2018, 23^rd May 2018 and 5^th June, 2018 so as to await the outcome of this letter but the Learned Counsel to the Claimants failed to appear before this court in all these dates. And application for consolidation of cases can never serve as a stay of proceedings in disguise.

Finally, let me quickly borrow from the dictum of my lord Honourable Justice Niki Tobi J.S.C (of blessed memory) in the case of H.R.H IGWE G.O EMEONUSULU UMEANADU VS A.G ANAMBRA STATE & ANOTHER (2008) 3 – 4 S.C PG 1 where his lordship stated as follows:

“Litigation is not the children’s game of hide and seek. It is not a game of smartness. It is also not a game of artifice or cunning display of a smart conduct designed to overreach or outsmart the adverse party. On the contrary, litigation is a decent, open and not deceitful process of making and defending claims in a court of law. The art and craft of even the most litigious person does not allow him to set a trap with a bait to trap the adverse party, as if he is a fish. That should be left to the fisherman or the keeper of an aquarium; but not the courts.”

In view of the foregoing facts I enumerated ab-initio I resolved the lone issue for determination in favour of the 3^rd Defendant/Applicant and hold that the Claimant’s action is an abuse of the process of this court. And as such the Preliminary Objection is hereby sustained. Assuming but not conceding that this is not the position of the law, I further formulated another issue for determination with regards to the substantive matter, (that is the Originating Summons) as follows:

“Whether the Claimant is entitled to the reliefs sought.”

I have carefully analysed and review the Submissions made by the Learned Counsels including the averments contained in both the Supporting and Opposing Affidavit, what the Claimant want this court to interpret is whether going by the Provisions of Sections 7 (1) and 10 of the Trade Union (Amendment) Act, 2005, Part B Third Schedule of the Trade Unions Act, Cap T14, Laws of the Federation of Nigeria 2004 remains operative to regulate the jurisdictional scope of the Claimant as a Trade Union. The bone of contention as gathered from the processes filed (Originating Summons and the other processes) is that whether going by the provision of Sections 7 (1) and 10 of the Trade Union (Amendment) Act, 2005, Part B, Third Schedule of the Trade Union Act, Cap T14 LFN, 2004 remains operative to regulate the jurisdictional scope of the Claimant as a Trade Union.

Let me start by acknowledging that the resolution of this issue would touch heavily on the questions raised by the Claimant in the Originating Summons. That being said, the bone of contention as gathered from the arguments of the Counsel in their Written Addresses is to the effect that the Claimant strongly maintains that, that Section 33 of the Trade Unions Act, Cap T14 LFN, 2004 (Principal Act) which hitherto regulated the jurisdictional scope of the Claimant has been deleted by the provision of Section 7 (1) of the Trade Unions (Amendment) Act, 2005 and Section 10 of the same Amendment Act of 2005 renumbered the erstwhile Sections 34 – 54 as 33 – 53. The Claimant also contended that Part B, Third Schedule of the Principal Act was originally connected to and derives its force from the said Section 33 which was deleted and upon such deletion of Section 33, Part B, Third Schedule becomes lifeless and without any force to regulate the jurisdictional scope. In essence, it is of no consequence that Part B, Third Schedule was mistakenly retained in the Principal Act. The Claimant argued that there were several amendments to the Principal Act. The 4^th Defendants on their part argued that by any means, the deletion of Section 33 does not affect the jurisdictional scope of the Claimant on the ground that no law will enact such a confusion as to make no distinction between Junior Workers and Senior Staff.

I have painstakingly reviewed the laws in question. I must of necessity first say that the power to make laws is exclusively that of the legislature. See Section 4 of the Constitution of Federal Republic of Nigeria 1999 (as amended). Also, the court in INEC Vs MUSA (2003) 3 NWLR (PT. 806) 72 held that:

“The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of states and to make laws with respect to any matter in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the constitution to the extent prescribed in the Second Column: and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.” Per AYOOLA, JSC. (P.36, paras A –D).

The role of this court in respect to the above contention is to interpret the law as stated in the case of Dokubo-Asari Vs.F.R.N (2007) Vol. 30 WRN 1 at 38 lines 5 – 15 (SC) that:

“The Learned Counsel is aware that courts do not make laws. They interpret laws. Courts cannot amend the Constitution. Courts cannot suspend the Constitution or any part of thereof. However, if in its role of interpretation, a court makes a pronouncement which may have the weight and effect of declaring a law or some part of the Constitution for that matter null and void, the Court must find support from the same Constitution or any other statute of equal force. See the case of Attorney-General of Bendel State Vs. Attorney-General of Federation Ors. (1981) 10 SC1 at 134: (1982) 3 NCLR 1: (1981) NSCC 314.” Per Muhammad JSC. In more precise terms, the court in the case of CORPORATE AFFAIRS COMMISSION VS UNITED BANK FOR AFRICA PLC & ORS (2016) LPELR – 40571 (CA) held that:

“My Lords, it is settled that the duty of the court to interpret the provisions of a statute in the clear tenor of the words contained in it. In KRAUS THOMPSON ORG VS N. I.P.S.S (2004) 17 NWLR (PT. 901) 44; (2004) LPELR – 171 (SC) PP 11 – 12, PARAS G –B, the Supreme Court, Per Tobi JSC held: “By the doctrine of separation of powers, it is the Constitutional function of the Legislature to make laws, including amendment and revocation and our duty in the Judiciary is to interpret the amendment or revocation to achieve the intention of the Legislature.”

Going by the above, the Legislature enact, amend and repeal laws while the Court interprets and pronounces on the effect of such enactment, amendment or repeal and that is what this court sets out to do by resolving Issues. The Counsel to the Claimant to a certain extent presented the antecedent to the Section 33 (3) of the Trade Unions Act. Stating that by the amendments done to the Principal Act in 1996, jurisdictional scope was introduced as against the original provision in the Principal Act as found in Cap 437 LFN, 1990. Counsel further narrated that by Section 6 of the Trade Unions (Amendment) Act (No. 4) of 1996 “Sections 33 of the Principal Act was amended-

By substituting for subsections (2) (3) and (4) thereof, the following new subsections, that is:

The twenty-nine Trade/Workers Unions as specified in Part A of the Third Schedule to this Act shall be deemed to be affiliated to the Central Labour Organization registered pursuant to subsection (1) of this section.

The names and Jurisdictional scope of the twenty-nine Trade/Worker Unions are as specified in Part B of the Third Schedule to this Act.

Counsel also reckoned that another amendment was retrospectively done in 1999, the jurisdictional scope of the Claimant was clearly stated in Part B, Third Schedule to the Principal Act and linked to the earlier section 33 (3) although without the inclusion of “twenty-nine.” Without doubt, the current Trade Union Act (as amended) is under Cap T14, LFN 2004. This was categorically stated in the case of NIGERIAN SEAFARERS COLLABORATING UNIONS VS NUPENG & ANOR (2013) 31 NLLR (PT. 88) 84 when the court held that:

The principal legislation for trade dispute is the Trade Unions Act (TUA), cap. T14, LFN, 2004 and not the trade unions (amendment) act, 2005 which merely amended the principal act. A cursory look at the said principal act from the lexis nexis collection of the Laws of the Federation of Nigeria under the authority of the revised edition (Laws of the Federation of Nigeria) Act, 2004, Volume 14, (pages T14 – 1 – T14 – 38) reveals that there is a Section 33 which has nothing to do with the jurisdictional scope of the claimant and a missing section 34.

For avoidance of doubt, same is herein reproduced:

No person to hold office in more than one federation of trade unions at the same time

(1) No person shall be an official of more than one federation of trade unions at the same time:

(1978 No. 22 2005 No.17)

Provided that nothing in this subsection, shall prevent a person who is an official of a Federation of Trade Unions from being at the same time an official of a Trade Union or the Federation of Trade Unions, or of both.

(No. 22 of 1978 and No. 17.1 2005)

(2) Any person who contravenes subsection (1) of this section shall be guilty of an offence against this Act.

Part III

Federation of Trade Unions

(2005 No. 17)

34…

(2005 No. 17)

Furthermore, I have considered Part B, Third Schedule to the Act which is headed as “The jurisdictional scope of each of the re-structured trade unions” The Part is linked to section 34 (3). The entire section 34 however is not in the body of the laws as captured above. While I reckon that the claimant is on column 2 on the list of trade unions whose jurisdictional scope is captured in the said Part B, Third Schedule and said to cover junior workers.

For sake of clarity, the said column 2 states opposite the name of the Claimant its jurisdictional scope as:

“All junior staff employed in the Federal and State Corporations; Civil Service employees classified as technical; workers of sports commissions and stadia; public recreation clubs by whatever name called; swimming pools; amusement centres including carnivals, circuses, zoological gardens and services similarly classified, excluding radio, Television, NITEL, NIPOST, Railways, Nigeria Airways and other corporation workers already unionized.

Components:

Civil Service Technical Workers Union of Nigeria
National Union of Public Corporation Employees
Recreational Services Employees Union

Going by the above, I am not unmindful and it is not in doubt that there is a conspicuous incongruity in the Act as it is presently written. I must also quickly add that, by the 2005, certain amendments were introduced via the trade unions (amendment) act, 2005. I have also perused the provisions of same and found accordingly that section 33 is deleted and the earlier section 34 – 54 is renumbered as 33 – 53. Section 7 and 10 of trade unions (amendment) act 2005 provides thus:

(1) Section 33 of the principal act is deleted.

(2) Substitute the phrase, “Central Labour Organization” for the phrase “Federation of Trade Unions” whenever it appears in the principal act.

The existing sections 34 to 54 of the principal act shall be amended by renumbering them as sections 33 to 53 respectively.

The reckoned incongruity and the 2005 amendments are what raises the question as to what is the effect of the deletion to section 33 of the principal act; can the part of a schedule have any force of law without a linkage with a section of the main law? The answer to these questions are what would assist in determining whether or not there is a jurisdictional scope of the claimant. As earlier said, this court has no power to rewrite the law nor go on a voyage of discovery. The supreme court clearly stated in the case of CORPORATE AFFAIRS COMMISSION VS UNITED BANK FOR AFRICA PLC & ORS (2016) LPELR – 40571 (CA) that:

“It has been said, as a matter of fact and law that the primary duty of a judge is to expound and not to expand the law. In any case, the fundamental duty of the court is to bring to the force, the intention of the legislature as expressed in a statute and nothing more. See the case of AMAECHI VS INEC (2008) 5 NWLR (PT. 1080) 227 SC; (2008) LPELR – 446 (SC), PER MOHAMMED, JSC stated:

Having said that, the question that naturally follows is whether the legislature intended to delete or repeal the provision in part B of third schedule which provides for the jurisdictional scope of the claimant. Before I state the judicial authorities in this respect, let me state that the Claimant contended that the said deleted Section 33 of the Principal Act is the root to which part b of the Third Schedule is attached and upon the deletion of the said Section 33, Part B loses its force. While the provision of what was deleted is not stated, this court can infer the intention of the legislature from the Amendment Act, 2005. The said Section 7 (2) intends to substitute “Central Labour Organization” for the phrase “Federation of Trade Unions” wherever it appears in the Principal Act. Can this be enough to indicate that the main Section 33 deleted is as contended by the Defendant that it is not in respect of jurisdictional scope. In addition, the said part B, third schedule of the principal act in the complied LFN is linked to Section 34 (3) not Section 33. That being what the court can physically see, and since the court would not go on a voyage of discovery, there is no gainsaying that the act stays as it is and are to be construed literally. Going by the express provision of the Trade Unions (Amendment) Act, 2005, there is nothing in it repealing the parts in the third schedule to the principal act and it is settled law that the law leans against implied repeal except where there are two conflicting laws, the later will be deemed to have impliedly repealed the earlier. This position was clearly stated in the case of AKINTOKUN VS. LPDC (2014) LPELR 22941 (SC) where the court held that:

“This principle is well settled by this court in the case of Uwaifo vs Attorney General. Bendel State & Ors (1987) 7 SC 55 at 90, per Idigbe, JSC (as he then was):

“It is indeed, a settled principle of law that where two acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier (see: Paine Vs. Slater (1883) 11 QBD 120) and the courts lean heavily against implying a repeal except where the two acts are so plainly inconsistent or repugnant to each other that effect cannot be given to both at the same time, in which case it will imply a repeal (See also: Dr. Lushington in the India (1865) 12 LT (new series at 316).” Per Muhammad, J.S.C (pp. 64 – 66, paras, G – B).

The courts have earlier had to determine whether the trade unions (amendment) act 2005 alters or repeals any part of the Third Schedule to the principal Act. In the case of NATIONAL UNION OF SHOP AND DISTRIBUTIVE EMPLOYEES (NUSDE) Vs. the STEEL AND ENGINEERING WORKERS UNION OF NIGERIA (SEWUN) (2013) 35 NLLR (PT. 106) 606, the court held that:

“The 2005 Trade Unions (Amendment) Act did not repeal, amend or substitute any of the provisions of the Third Schedule, Parts A, B and C of the Trade Unions Act, Cap T14, LFN, 2004. It was left intact. The jurisdictional scope as contained in the Third Schedule Parts A, B, and C to the Trade Unions Act is still applicable to all the Trade Unions.”

In the face of this position of the law, the Claimant still contended against the 4^th Defendant that while the court earlier decided the cases of CAC Vs AMALGAMATED UNION OF PUBLIC CORPORATIONS CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICES EMPLOYEES (2004)1 NLLR (PT. 1) at 3 1- – 33; nllr (pt. 214) 404 at 461 and PERESSA VS SSACGOC (2009) 14 NLLR (PT. 39) 306, the court did not consider Section 7 of the Trade Union (Amendment) Act, 2005. The Claimant contended that the decision in CAC Vs. AMALGAMATED UNION OF PUBLIC CORPORATIONS CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICES EMPLOYEES (SUPRA) would not even apply since it was decided before the 2005 amendment.

With regards to other cases that are post 2005, the claimant contended that section 7 and 10 of the amendment Act were not considered and if it had, the decision would have been different therefore, the decisions are per incuriam and not binding on this court in this case.

In PERESSA VS SSACGOC (2009) 14 NLLR (PT. 39) 306, the Defendant contended that workers have unfettered freedom to join any union of their choice. The court therein held that:

“The dire need to streamline trade unions as a result of proliferation and a chaotic labour regime led to the restructuring of Trade Unions, beginning with restructuring exercise as contained in the Legal Notice No. 92 Re-structuring of Trade Unions, Official Gazette of the Federal Republic of Nigeria No. 6 of 8^th February, 1978. This culminated in the restructuring exercise under decrees 4 and 26 of 1996 where Trade Unions were restructured into named unions listed out and their jurisdictional scope provided for all in the Third Schedule Parts A – C of the Trade Unions Act, as amended. See OSAWE VS. REGISTRAR OF TRADE UNIONS (1985) 1 NWLR (PT. 4) 755, a case that was decided during the 1979 – 1983 democratic dispensation. The 2005 Trade Unions Amendment Act did not repeal, amend or substitute any of the provisions of the Third Schedule Part A, B and C of the Trade Unions Act, Cap T14 LFN 2004. It was left intact.”

If the court had stated that the provision of Trade Unions (Amendment) Act 2005 does not repeal the Third Schedule, Part A, B and C, is the Claimant expecting the court to specifically mention each section of the amendment act before it would be clear that the court had done so?

In the case of NUPENG VS MARITIME WORKERS UNION OF NIGERIA (MWUN) (2015) 61 NLLR (PT. 214) 404 at 461, a case on which of the two unions have jurisdiction under the extant laws to unionize the employees of GAC MANNING SERVICES. The court with respect to the whether junior staff can on their own opt for a union held inter allia that:

“So when NUPENG wrote to the General Manager of GAC-GMS NIG. Ltd. vide Exhibit G dated 15^th October, 2012 informing him of the formation of a branch of NUPENG after the workers voluntarily applied to join the union in accordance with the trade unions act, 2005, this was most certainly wrong, illegal, null and void and of no effect whatsoever. Junior workers cannot on their own opt for a union; and senior staff can only opt for a senior staff union…”

This position of the law presupposes that the court in 2015 still recognizes the jurisdictional scope provided in the trade unions act (as amended). Yet the Claimant wants this court to regard the decision as per incuriam.

The Supreme Court in the case of AMINU TANKO VS THE STATE (2009) 4 NWLR (Pt. 1131) 430 SC provided the meaning of per incuriam that:

“Per incuriam is not the opposite of the Latinism per curiam which means by the court. It rather means through misadventure in ignorance of the relevant law. It is more commonly used today as those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding in the particular court.” Per Tobi, J.S.C (P. 37, PARAS A – B). The court further held that:

“The latin word “incuria/incuriae,”means carelessness or neglect see: pocket oxford latin dictionary 2005 revised edition edited by James Morwood (Oxford University Press) page 92. The legal connotation is that when a case is decided per incuriam, it denotes the idea that it is decided through inadvertence and or in ignorance of the relevant law. As a general rule, the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some authority binding on the court. (See: Garner’s Dictionary of Modern Legal Usage 2^nd ed. 1995, Oxford University Press, page 435 and 651).”

Considering the fact that it is evidently clear that the courts in the earlier cases, aside from CAC VS AMALGAMATED UNION OF PUBLIC CORPORATIONS CIVIL SERVICE TECHNICAL and RECREATIONAL SERVICES EMPLOYEES (SUPRA) have made express reference to the trade unions (Amendment) Act, 2005 as evident in the holdings of the court in NUPENG VS MARITIME WORKERS UNION OF NIGERIA (MWUN) (2015) 61 NLLR (PT. 214) 404 AND PERESSA VS SSACGOC (2009) 14 NLLR (PT. 39) 306, it is preposterous to still maintain that the decisions were made in ignorance or forgetfulness of the statutory provision of the Trade Unions Act.

With regards then to the contention of Claimant that by section 7 of the 2005 amendment act deleting section 33 of the principal act and thereby affecting Part B of Third Schedule, I must reiterate that the court leans against implied repeal, as it is settled that statutes are not repealed by implication but by direct provisions of law. See: IBIDAPO VS LUFTHANSA AIRLINES (1997) 4 NWLR (pt. 498) 124/” Per Kekere-Ekun, J.S.C (p. 129, paras E – F). Consequently, I have also considered the provisions of Section 7 and 10 of the Trade Unions (Amendment) Act, 2005 which did not state that part B, Third Schedule is repealed or deleted. Also, going by the fact that the Third Schedule as is presently available in the LFN is linked to Section 34 (3) and not section 33 (3) as canvassed by the Claimant makes the argument of linkage unreliable.

I must add also that the 1^st Defendant is not the law maker though authorized to compile the laws. That notwithstanding, the mistake of the 1^st Defendant whether admitted or denied cannot prompt the court to rewrite the law. Moreso, this court is bound to apply the laws in the compilation of a revised edition of Laws of Federation of Nigeria as reckoned by the Supreme Court in ROTIMI WILLIAMS AKINTOKUN VS. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (LPDC) (2014) LPELR – 229441 (SC) when it held that:

“So, as far as this court is concerned, all laws contained in the Edition of the Laws of the Federation of Nigeria, 2004 are authentic Laws of the Federation, having the force of law/legislation. They are not meant for cosmetic show. They must be respected and applied.”

In the final analysis, this court finds that Part B, Third Schedule of the Trade Union Act, Cap T14 LFN, 2004 remains operative to regulate the jurisdictional scope of the Claimant as a Trade Union same having not been expressly repealed by the Trade Unions (Amendment) Act, 2005 and Issue 2 is therefore resolved in favour of the Defendants. The resolution of the above then forms the basis upon which the questions raised by the Claimant are to be answered. In answering Question 1 and 2 which are that:

“In view of the provisions of Sections 7 (1) and 10 of the Trade Unions Act (Amendment) Act 2005, and the consequent deletion of the entire provisions of the original Section 33 of the Trade Unions Act (as amended) particularly Section 33 (3) thereof, which created Part B of the Third Schedule to the Act, is the jurisdictional scope of the Claimant and other Trade Unions Act, Cap T14 LFN, 2004. And same is still in force. This is because a schedule forms part of a statute as held in the case of MRS. GLORIA ANULIKA ANAEKWE VS MR. KINGSLEY IRUBA & ORS (2011) LPELR – 9198 (CA) that:

“The law is that the schedule to an act is as much part of the act as any other part of it.” PER LOKULO – SODIPE, JCA (P 19, Para G). Also, the repeal of Part B, Third Schedule being part of the Trade Unions Act (as amended) must be express considering the fact that an implied repeal cannot be found in the surrounding circumstances of the law as presently constituted.

With regards to question 4 which is that

“If the answers to questions (1) and (2) and 3 are in the negative, is there any statutory or legal basis for the Defendants to rely on the deleted provisions of Part B of the Third Schedule to the Trade Unions Act (as amended) to classify the Claimant as a Junior Staff Union, whose membership is limited only to Junior Staff employed in the Federal and State Corporations; Civil Service employees classified as technical; workers of sports commissions and stadia; public recreation clubs by whatever name called; swimming pools, amusement centres including carnivals, circuses, zoological gardens a ns service similarly classified…?

It is clear that the answer to questions 1 and 2 are in the positive, therefore the Defendants have a legal basis to classify the Claimant as Junior Staff Union as same is captured in Column 2, Part B, Third Schedule to the Trade Unions Act (as amended).

With regards to question 6 which is:

“In view of the deletion of the original Section 33 of the Trade Unions Act (as amended) particularly Section 33 (3) thereof, and the combined effect of the provisions of section 40 of the 1999 constitution of the Federal Republic of Nigeria (as amended) and Section 12 (4) of the Trade Unions Act (as amended), is there any legal justification to deny any worker who is otherwise eligible for membership of the Claimant and who voluntarily desires to join as a member of the Claimant, the right of admission to the membership of the Claimant by reason only that such worker is a senior staff and does not fall within the jurisdictional scope of the claimant by virtue of his/her cadre or salary grade level?”

The courts have made it clear that the right to membership of trade union is not absolute. Pronouncing on the provision of section 12 (4) of the Trade Unions Act (as amended), the court in NATIONAL UNION OF SHOP AND DISTRIBUTIVE EMPLOYEES (NUSDE) VS THE STEEL AND ENGINEERING WORKERS UNION OF NIGERIA (SEWUN) (2013) 35 NLLLR (PT. 106) 606, held that:

“On the issue of voluntarism the right of a worker to decide which union to belong to is not absolute but must be exercised within the limits of the Trade Unions Act, Cap T14, LFN, 2004. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU VS ASCSN (2004) 1 NLLR (PT. 3) 429 and OSAWE VS REGISTRAR OF TRADE UNIONS, (SUPRA). Even the fundamental rights guaranteed in chapter IV of the 1999 Constitution are not absolute. Section 45 (1) (a) and (b) provides for derogation from these rights. We, therefore, hold that the jurisdictional scope as contained in the Third Schedule Parts A, B and C to the trade unions act is still applicable to all the trade unions. The right to choose which union to belong to is a qualified right.”

The above authority is apt and lays to rest the question of right to membership of a union. The union to be joined are as clearly categorized in Third Schedule and same have been clearly analysed to the effect that the junior employees automatically belong to a union and have the right to “opt out” of any union they do not want to belong to while a Senior Staff have right to “opt in” voluntarily since they are not deemed members of a union. Both choices are to be carried out within the jurisdictional scope captured in the Third Schedule and if the law makers do not want the jurisdictional scope to apply any longer, this must be expressly stated before this court can pronounce same.

Therefore, there is indeed legal justification to deny a worker who voluntarily desires to join as a member of the Claimant, the right of admission to the membership of the Claimant by reason that such worker is Senior Staff and does not fall within the jurisdictional scope of the Claimant.

With regards to question 3, which:

“having, in compliance with the provisions of Section 7 (1) of the Trade Unions Act (Amendment), 2005, actually deleted the entire provisions of the original section 33 of the Trade Unions Act particularly Section 33 (3) thereof (which created Part B of the Third Schedule to the Act) in the updated edition of the laws of the Federation of Nigeria, 2004, does the 1^st defendant have any legal basis or justification to still retain the provisions of Part B of the Third Schedule to the Act, as part of the Trade Unions Act (as amended), in the laws of the Federation of Nigeria?”

The 1^st Defendant is the Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.” While there is no doubt that the 1^st Defendant is the Chief Law Officer of the Federation, there is no provision in the constitution empowering the Chief Law Officer to make, amend or repeal laws. That power is exclusively that of the legislatures. See Section 4 of the Constitution of Federal Republic of Nigeria 1999 (as amended). That notwithstanding, the Chief Law Officer may be empowered by the National Assembly to compile the Laws of the Federation of Nigeria, and the court is for the time being bound to apply the laws as found in the Laws of the Federation of Nigeria until a clear amendment or repeal is carried out by the law makers. See AKINTOKUN VS. LPDC (SUPRA). That being said, if the provision of the law as handed to the 1^st Defendant is as it was enacted by the National Assembly, then there is al legal justification for the retention of Part B, Third Schedule to the Trade Unions Act (as amended) same having not been expressly repealed by the Trade Unions (Amendment) Act, 2005. See PERESSA VS SSACGOC (SUPRA).

In view of the resolutions on the issues raised by this court and the answers provided to the questions raised by the Claimant, the declarations and orders sought by the Claimant are hereby refused in their entirety. The said declarations and orders are to wit:

A DECLARATION that by virtue of the provisions of Section 7 (1) and 10 of the Trade Unions Act (Amendment) Act 2005, which expressly deleted the original Section 33 of the Trade Unions Act (as amended), particularly Section 33 (3) thereof, there is/are no extant Section(s) of the Trade Unions Act (as amended) providing for the jurisdictional scope of the Claimant or any other Trade Union in Nigeria.

A DECLARATION that in view of the provisions of Sections 7 (1) and 10 of the Trade Unions Act (Amendment) Act, 2005, and the consequent deletion of the entire provisions of the original Section 33 of the Trade Unions Act (as amended) particularly, Section 33 (3) thereof, which created Part B of the Third Schedule to the Act, the jurisdictional scope of the Claimant and other Trade Unions in Nigeria, as hitherto provided for in Part B of the Third Schedule to the Act, is no longer in force.

A DECLARATION that having complied with the provisions of Section 7 (1) of the Trade Unions Act (Amendment) Act, 2005 by actually deleting the entire provisions of the original Section 33 of the Trade Unions Act (as amended) particularly Section 33 (3) thereof, which created Part B of the Third Schedule to the Act, in the updated Edition of the Laws of the Federation of Nigeria, 2004, the 1^st Defendant does not have any legal basis or justification to still retain the provisions of Part B of the Third Schedule to the Act as part of the Trade Unions Act (as amended), Cap T14 Laws of the Federation of Nigeria, 2004.

A DECLARATION that there is no statutory or legal basis for the 2^nd and 3^rd Defendants to rely on the extinct provisions of Part B of the Third Schedule to the Trade Unions Act (as amended) to classify the Claimant as a Junior Staff Trade Union, whose membership is limited only to Junior Staff employed in the Federal and State Corporations; Civil Service employees classified as Technical; Workers of Sports Commissions and Stadia; Public Recreation Clubs by whatever name called; Swimming Pools, Amusement Centers including Circuses, Zoological Gardens and Services similarly classified, excluding radio, Television, NITEL, NIPOST, Railways, Nigeria Airways and other corporation workers already unionized.

A DECLARATION that by the combined provisions of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 12 (4) of the Trade Unions Act (as amended), there is no legal justification to deny any staff of the 3^rd Defendant who voluntarily desires to join the Claimant as a member, the right of admission to the membership of the Claimant by reason only that such a staff of the 3^rd Defendant is a Senior Staff on Salary GL 07, or above, who can only belong to the 4^th

A FURTHER DECLARATION that eligibility to the membership of the Claimant is not determined by the cadre or Salary Grade Level of a worker or whether the worker is a Junior or Senior Staff, but by the voluntary desire of such a worker and the Constitution of the Claimant.

A MANDATORY ORDER of this Honourable Court directing the 1^st Defendant, the Attorney General of the Federation, to remove or cause to be removed forthwith, from the Laws of the Federation of Nigeria, particularly the Trade Unions Act (as amended), the deleted Part B of the Third Schedule to the Act which has been wrongly retained by him in the Laws of the Federation after same had been deleted by the provisions of the Trade Unions Act (Amendment) Act, 2005.

A FURTHER ORDER directing the 1^st Defendant to renumber or cause to be renumbered properly, the provisions of the Trade Unions Act (as amended) in line with the provisions of the Trade Unions Act (amendment) Act 2005.

AN ORDER of this Honourable Court setting aside the directives of the 2^nd and 3^rd Defendants as contained in their respective letters of 16/06/16 and 10/06/16 to the effect that the jurisdictional scope of the Claimant covers only the staff of the 3^rd Defendant on Salary Grade Level 06 and below, while the jurisdictional scope of the 4^th Defendant covers staff of the 3^rd Defendant on Salary Grade Level 07 and above.

AN ORDER OF PERPETUAL INJUNCTION restraining the 2^nd and 3^rd Defendants, their agents, privies and person or authorities acting for or through them from interfering with the membership issues of the Claimant or determining who amongst the staff of the 3^rd Defendant should or should not become a member of the Claimant or the 4^th Defendant save as may be permitted by the law.

In the final analysis, I find the case of the Claimant lacking in merit and same is hereby dismissed.

Judgment is entered accordingly.

I make no order as to cost.

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

Signed