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CENTRAL BANK OF NIGERIA -VS- NATIONAL UNION OF PETROLEUM

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP,

Hon. Justice B.A. Adejumo, OFR…………………………………President

Date: 5TH  OCTOBER, 2017              

 SUIT NO. NICN/ABJ/248/2015   

BETWEEN:

CENTRAL BANK OF NIGERIA

 ————–CLAIMANT

AND

  1. NATIONAL UNION OF PETROLEUM AND

NATURAL GAS WORKERS.

  1. PETROLEUM AND NATURAL GAS SENIOR STAFF 

ASSOCIATION OF NIGERIA.                                        

  1. DR. AHMAD ISAH
  2. PAUL EDEH, ESQ.

(For themselves and for “Berekete Family”)

 

———DEFENDANTS

REPRESENTATION:

ADEOLA ADEDIPE, ESQ.  WITH GINIKA EZEOKE (MISS) AND O.C. OGUNYEMI (MISS) FOR THE CLAIMANT.

S.O.YAHAYA, ESQ., FOR THE 3RD DEFENDANT.

 

 

RULING/JUDGMENT

The Claimants instituted this action vide Originating Summons dated 5th August, 2015 but filed on 6th August 2015. The reliefs sought against the Defendants jointly and severally are:

  1. A Declaration that there is no trade dispute between the claimant and the defendants.
  2. A Declaration that the defendants cannot lawfully picket the claimant.
  3. An Order of perpetual injunction restraining the Defendants either by themselves or through their agents, members, servants or privies, from picketing the claimant or otherwise disturb or disrupt the claimant’s operations at its head office situate in Abuja or any of its branch offices in Nigeria.

In support of the Originating Summons is a 20 paragraph affidavit to which three Exhibits (Exhibits O, B and A), and a written address were attached. The claimant’s counsel raised two issues for determination in the written address in support of the originating summons thus:

  1. Whether or not there is a trade dispute between the claimant and the defendants within the meaning and contemplation of the trade Disputes act CAP T8 LFN 2004.
  2. If the answer to question 1 above is in the negative, whether or not the defendants can lawfully picket the claimant.

The 3rd and 4th Defendants filed a counter affidavit of 5 paragraphs which is supported by a written address on 12th August, 2015 in opposition to the originating summons. The 3rd and 4th defendants further filed a notice of preliminary objection. The NOP is challenging the jurisdiction of this Honourable court to entertain this suit as constituted.

The grounds for the NOP are that:

  1. There is no trade dispute between the plaintiff and the defendants, particularly the 3rdand 4th defendants.
  2. There are no proper parties before the court.
  3. The entire suit as constituted discloses no reasonable cause of action against the 3rdand 4th defendants
  4. The suit as constituted is speculative, premature and frivolous amounting to an abuse of judicial process.

In support of the NOP is a written address which the defendants relied on as their argument in support of the NOP. The 3rd and 4th Defendants prayed the court to strike out the Originating Summons for want of jurisdiction. They further urged the court to make any such order or orders as the court may deem just in the circumstances of this suit.

The claimant written address in opposition to the 3rd and 4th defendants’ written address was filed on 19/08/2015. It is the position of the claimant that the entire submission of the 3rd and 4th defendants is frivolous and unmeritorious. He urged the court to discountenance same in its entirety.

On 14th October, 2015, the 1st Defendant filed a Memorandum of Appearance dated 9th October, 2015, along with a motion on notice wherein he sought for extension of time to file processes in response to the Originating Summons. Accompanying the 1st Defendant’s motion for extension of time is a counter affidavit of 19 paragraphs in opposition to the present suit and a written address in support of the Counter affidavit. The written address is settled by Golden Tamuno, Esq.

The Claimant’s further and better affidavit and a written address in support, in reply to the 1st Defendant’s counter affidavit to the Originating Summons, was filed on 21/06/2016 but deemed to be properly filed and served by this court on 24/4/2017.

It is must be noted that the 2nd defendant did not file any process in this suit neither is it represented by any counsel.

It is also apt to mention that the claimant, at the initiation of this suit, filed two motions for injunction. The motion ex parte prayed for an order of court restraining the defendants and/or their privies from picketing the claimant or otherwise disrupting its normal operations at its head office in Abuja or its branch offices across the country pending the hearing and determination of the motion on notice.

On 07/06/2015, Hon. Justice P.O. Lifu, who was the vacation judge,  presided over this case and granted the motion ex parte and subsequently adjourned the matter to a further date for the hearing of the motion on notice. However the motion on notice could not be heard by his Lordship before the end of the vacation. His Lordship therefore transferred the case file to the PNICN after vacation for re-assignment to another judge.

At this juncture, it is pertinent for me to mention that this matter was adjourned for Judgment on 24/4/2017 after final written of the parties were adopted. I am not oblivious of the provisions of S.294 (1) of the 1999 Constitution of the Federal Republic of Nigeria which mandates that decisions in a case is to be delivered within Ninety (90) days after the conclusion of evidence and final address. Delivering this judgment today is obviously outside the provision of the constitution as stated above. It is therefore important for me to draw the attention of parties to this fact and to reiterate that not delivering this Judgment within the time prescribed by law is due to my engagements at the NJC and FJSC, of which I am a member, and other important administrative duties from the time the matter was adjourned for judgment till the time the court went on vacation.

Let me now review the submissions of counsel in their respective written addresses. I will start with the written address filed by the Claimant

The claimant’s counsel formulated two issues for determination thus:

  1. Whether or not there is a trade dispute between the claimant and the defendants within the meaning and contemplation of the trade Disputes act CAP T8 LFN 2004.
  2. If the answer to question 1 above is in the negative, whether or not the defendants can lawfully picket the claimant.

Arguing issue 1, counsel opined that the right of a trade union to “picket” is a right that does not exist in vacuum. He argued that it is a right that can only be exercised “in contemplation” or “in furtherance” of a trade dispute. He cited Section 43 (1) of the Trade Unions Act, CAP T 14, LFN 2004. He further referred to S.48 of the Trade Disputes Act, CAP T8, LFN 2004 where dispute is defined as: “any dispute between employer and workers or between workers, which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person”. He submitted that the definition of dispute as stated above has received judicial interpretation in the cases of NURTW v. OGBODO (1998) 2 NWLR PT. 537 P. 194; NEW NIGERIAN BANK v. OSHO & 4O ORS (2001) 13 NWLR PT. 729 P. 232; MOSES v. BISHOP JAMES YISA MEMORIAL SCHOOL LTD (2013) 31 NLLR PT. 88 P.59 NIC @ 81 A-B, UZOARU v. DANGOTE CEMENT PLC (2013) 31 NLLR PT. 89 P.308 NIC @ 322-323 H-A.

Counsel submitted that the expression “connected with” as used in the section is interpreted by the Supreme Court in the case of NUEE v. BPE (2010) 18 NLLR PT. 50 P.161 SC @202 C-D where it was held that; “ the expression ‘connected with’ has been a subject of some controversy in the English Courts. In Valentine v. Hyde (1919) 2 Ch. 729, Ashley J held that the dispute must be connected with employment or non-employment, and not a dispute about some entirely different subject matter, non-settlement of which may result in employment or non-employment.

He further argued that a trade dispute to be properly so called must contain two basic ingredients, namely:

  1. A dispute or disagreement between the two parties i.e. employers and employees or workers and workers.
  2. The dispute must be connected with the employment or non-employment, or the terms of employment, etc of any person.

He further argued that in the case of NUEE v. BPE (Supra) the Supreme Court cited with approval its decision in N.U.R.T.W. v. OGBODO (Supra) and held that the following ingredients must exist for a “trade dispute” to be said to exist:

  1. There must be a dispute.
  2. The dispute must involve trade.
  3. The dispute must be between (i) employers and workers or (ii) workers and workers.
  4. The dispute must be connected with (i) employment or non-employment; or (ii) the terms of employment.

He stated that it is important to state that these conditions are conjunctive, not disjunctive and so all the conditions must be met before a trade dispute can be said to have arisen. His argument is that the facts of this case as clearly spelt out in the affidavit accompanying the originating summons clearly show that there is no trade dispute between the claimant and the defendants, because there is no employment relationship  whatsoever between the claimant and the defendants. He urged the court to resolve the issue in favour of the claimant.

On issue 2, i.e. if the answer in issue 1 is in the negative, whether or not the defendants can lawfully picket the claimant, counsel argued that the right to picket is dependent on the existence of a trade dispute. He referred to S.43 of the Trade Unions Act which provides that: “it shall be lawful for one or more persons, acting on their own 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 to merely for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working”.

He argued that it is established that there is no trade dispute between the claimant and the Defendants. He therefore submitted that the defendants have no right to picket the claimant. Citing the case of NUEE v. BPE (supra) he reiterated that the defendants cannot lawfully picket the claimant as same is not in furtherance of a trade dispute as contemplated by the Trade Disputes Act and the Trade Unions Act.

Claimant’s counsel urged the court to resolve the 2nd issue in favour of the claimant and hold that the defendants do not have a right to picket the claimant, there being no trade dispute between the claimant and the defendants. He further prayed the court to decide the suit in favour of the claimant and grant the claimant’s prayers as sought in the originating summons.

On 14 June, 2016 when this matter was slated for hearing, the 3rd and 4th defendants’ counsel was absent in court to argue and adopt the written address he filed in this case. However, I deemed the written addresses he filed in opposition to this case as been already argued by him. I draw my authority from the provision of National Industrial Court of Nigeria (Civil Procedure) Rules 2017, Order 45 Rule 7 which states that: where any party before court has filed a written address and on the day the this matter is fixed for adoption of the written address the party fails or neglects to appear to adopt the written address without any cogent and compelling reason to the satisfaction of the court, the court shall deem the said written address as adopted and adjourned for ruling or judgment accordingly.

Also Order 38 Rule 3 (2) of the NICN (Civil Procedure) Rules 2017 also provides that: where any party to the proceedings has been duly served with notice to appear or the party is to the satisfaction of the court aware of the adjourned date and without reasonable excuse fails to appear, the court may consider and deal with the matter before it in the absence of such party.  The position is the same as the provision in Order 19 Rule 4 of the National Industrial Court Rules 2007.

I am satisfied and convinced that the 2-4th defendants are fully aware that this matter was coming up for hearing and I do not have any cogent reason before me explaining the reason for their absence. I consider it safe therefore to proceed to consider the merit and substance of this suit, starting with the NOP of the 3rd and 4th defendant.

The 3rd and 4th defendants filed a counter affidavit of 5 paragraphs and a written address in opposition to the originating summons. The counter affidavit was sworn to by one Emmanuel Katkur. In the written address in support of the counter affidavit, Counsel for the 3rd and 4th defendant contended that this Honourable Court lacks the Jurisdiction to entertain this suit on the ground that:

  1. There is no trade dispute between the plaintiff and the Defendants, particularly the 3rd and 4th defendants.
  2. The 3rd and 4th defendants are wrongly sued in this action.
  3. The entire suit as constituted discloses no reasonable cause of action against the 3rd and 4th defendants.
  4. This suit as constituted is speculative, premature and frivolous amounting to an abuse of judicial process.

Counsel urged the court dismiss the Originating summons for being frivolous, vexatious, oppressive and without merit based on the counter affidavit even if court declines to uphold the defendants’ ground of objection.

As I have earlier mentioned, the 3rd and 4th defendant had on 12th August, 2015, filed an NOP against the jurisdiction of the Court to hear and determine this case.

May I reiterate that the grounds for the NOP of the 3rd -4th defendants are that:

  1. There is no trade dispute between the plaintiff and the defendants, particularly the 3rdand 4th defendants.
  2. There are no proper parties before the court.
  3. The entire suit as constituted discloses no reasonable cause of action against the 3rdand 4th defendants
  4. The suit as constituted is speculative, premature and frivolous amounting to an abuse of judicial process.

Counsel for the 3rd and 4th defendants distilled three issues for determination in his NOP and prayed the court for:

  1. An order of the Honourable Court striking out the Originating Summons for want of jurisdiction.
  2. And for such further order or orders as the Court may deem just in the circumstances of this suit.

Arguing the 3rd and 4th Defendants’ NOP, learned counsel Sambo I. Vongjen, Esq. submitted in his written address that the 1st issue for determination is: whether the National Industrial Court will have jurisdiction to entertain a suit where there is no trade dispute between the parties within the meaning and contemplation of S. 43 of the Trade Unions Act, Cap T14, LFN 2004, S. 48 of the Trade Disputes Act, CAP. T8 LFN 2004 and the National Industrial Court Act, 2006?.

Counsel submitted that the issue of jurisdiction is a threshold matter that could be raised by any of the parties, by the court suo moto and could be raised for the first time even at the apex court. He cited the cases of ALIMS V. UBA (2013) 1 SCNJ 1 @12; IWAGOLU V. AZYKA (2007) 29 WRN 120 @ 134 LINES 20-40; OKOYA V. SANTILI (1990) 2 NWLR PT. 131 P. 172 and GOVERNOR OF GONGOLA STATE V. TUKUR (1989) 4 NWLR PT.117 P. 592.

Citing the case of NYAME V. FRN (2010) 3 SCNJ PT. 1 P.28 @ 62, counsel  submitted further that for the judicial powers of the court to be properly invoked, three factors must co-exist, to wit:

  1. The court is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other
  2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction, and;
  3. The case comes before the court initiated by due process of the law upon fulfilling the condition precedent to the exercise of jurisdiction.

It is the argument of counsel that the law is settled that it is the claimant’s claim that determines the jurisdiction of the court. He cited the cases of TUKUR V. GOVERNOR OF GONGOLA STATE (1997) 4 N. NWLR PT. 510 P. 549; UNILORIN V. OLUWADARE (2006) 5JNSC 613 @ 623 PARAGRAPH F-G and COUNCIL OF LEGAL EDUCATION V. BALOGUN (2012) 2 WRN P.91 @ 110, LINES 5-10 to buttress his argument on the issue.

Counsel posited that a careful perusal of relief 1, which he viewed as the principal or main relief in the originating summons which flows from the first question for determination is self-defeating. It is counsel’s argument that the affidavit evidence with particular reference to paragraph 19 of the claimant’s affidavit in support of the originating summons and the legal submission does not disclose any trade dispute between the claimant and any of the set of defendants in this action.

Counsel opined that the judicial powers of this Honourable Court cannot be invoked for fancy as in the instant suit. On this principle of law, counsel cited the cases of OLORUNTOBA-OJU V. DOPAMU (2012) 2 NICR P. 1 @28-29 PARAGRAPH 34-35, PARAGRAPH D-C and NUEE V. BPE (2012) 1 NICR P.81 @117-11 PARAGRAPHS C-F,119 PARAGRAPH B-H. He also referred to S. 43 of the Trade Unions Act, Cap. T14, LFN, 2004; S. 48 of the Trade Disputes Act, Cap. T.8, LFN 2004; and S. 7 of the National Industrial Court Act, 2006.

Counsel argued that to worsen the claimant’s case, reliefs 2 & 3 are mere consequential reliefs which cannot stand independent of the principal relief 1. He cited the cases of ODEDEYI V. ODEDEYI (2002) VOL. 11 WRN 161 @ 180 LINES 25-40 and UMANAH V. ATAH (2006) 5 JNSC 529 @555-556 P. 34-35, PARAGRAPH F-G, to support his position.

He prayed the court to find and hold that it lacks jurisdiction to entertain this suit and proceed to strike out same in its entirety because any proceeding devoid of jurisdiction is a sheer waste of time no matter how well conduct.

The 2nd issue for determination which, according to the defendants’ counsel, is derivable from ground 2 of the NOP is: whether the 3rd and 4th Defendants are not wrongly joined in this action?.   

Adopting his argument on issue 1 above, it is counsel’s position that a person is not just sued or brought to court unless there exists a justiciable cause against him. He argued that the main question to ask is what the persons sued did which amounted to an infringement against the rights of the person suing. He opined that where an action is brought to obtain relief which the court has no power to grant, the statement of claim will be struck out. He cited the case of AKINDIPE V. C.O.P. (2000) FWLR PT. 5 P.709 @719 PARAGRAPH B in support of the issue. He prayed the court to strike out the names of the 3rd and 4th Defendants from this action.

The 3rd issue for determination which counsel stated that is premised on ground 3 and 4 of the ground for the NOP is: whether the claimant’s case constitutes any reasonable cause of action against the 3rd and 4th defendants and/or whether the entire action is not oppressive and speculative?.

It is counsel’s argument that assuming without conceding that this Honourable court has jurisdiction to entertain this suit as constituted, he queried the aggregate facts that gave rise to any of the reliefs against the 3rd and 4th defendants. He referred to the case of A.G. LAGOS STATE V. EKO HOTELS LTD (2007) 9 WRN 1 @ 66-67 LINES 35-5, and concluded that this action is plagued by a fundamental defect i.e. that this court lacks the jurisdiction to entertain this suit. He urged the court to dismiss same.

The claimant in response to the 3rd and 4th defendants’ reply address and address in support of the NOP filed a written address on 19th August, 2015. Three issues were distilled for determination thus:

  1. Whether this Honourable court has the jurisdiction to hear and determine the claimant’s suit as presently constituted?.
  2. Whether in view of the facts and circumstances of this case, the 3rd and 4th defendants are proper and necessary parties to this suit?.
  3. Whether the claimant’s action discloses reasonable cause of action against the 3rd and 4th Defendants?

On issue 1 above, claimant’s counsel argued that this issue is materially the same with the first question submitted for determination in the originating summons. He recapped the issue for determination in the originating summons thus:

“whether or not there is a trade dispute between the claimant and defendants within the meaning and contemplation of the Trade Disputes Act, CAP T8 LFN, 2004”.

 He argued that the determination of the first leg of the NOP will result in the determination of a substantive question submitted to this Honourable Court for determination at an interlocutory stage. Citing the case of D.P.C.C. v. B.P.C. LTD (2008) 4 NWLR PT. 1077 P. 381 @ 412-413, PARAGRAPH F-D counsel submitted that the law is trite that a court is enjoined to refrain from making pronouncement on issues to be decided in the substantive suit at the interlocutory stage. He urged the court to discountenance the first leg of the NOP and the 3rd and 4th defendants’ issue 1

Counsel submitted that in the event that this Honourable Court decides to consider the first leg of the NOP, he argued that jurisdiction is the foundation of the court’s capacity to hear and determine a dispute before it and it is a threshold matter and the bedrock of all trials and proceedings as it goes to the competence of the court to hear and determine a suit. That where a court does not have jurisdiction to hear a matter, the entire proceedings, no matter how well conducted and decided, would amount to a nullity. He cited the cases of LAKANMI v. ADENE (2003) 10 NWLR PT. 823 P. 353 @ P.367, PARAGRAPH E-F; MATARI v. DANGALADIMA (1993) 3 NWLR PT. 281 P. 266; ADEIGBE v. KUSHIMO (1965) 2 SCLR 341; MADUKOLU V. NKEMDILI (1962) 2 SCNLR 341; NWANKWO V. YAR’ADUA (2010) 12 NWLR PT. 1209 P. 560 PARAGRAPHS E-H in support of this principle of law.

Counsel argued that the argument of the 3rd and 4th defendants that the claimant’s reliefs, especially the first relief, do not disclose any trade dispute between the claimant and any of the defendants in this action and is therefore outside the jurisdiction of this Honourable Court, is misconceived and he urged the court to discountenance it. Citing the case of B.F.D. (NIG.) LTD. V. U.T.B. TRUSTEES LTD (2010) 6 NWLR PT. 1189 @ P. 199 PARAGRAPH G-H, counsel argued that where a court is to determine whether it has jurisdiction to determine a case, the court in that circumstance will consider the averments in the claimant’s writ of summons, statement of claim as well as the enabling law vesting jurisdiction on the court. He further referred to the case of ONWUDIKE V. FRN (2006) 10 NWLR PT. 988 P. 382 @ P.428 PARAGRAPH B-D.

Claimant’s counsel further argued that a careful look at the reliefs of the claimant as contained in the originating summons will reveal that this suit falls within the jurisdiction of this court as provided for by S. 254 (c)(1) of the Constitution of the Federal Republic of Nigeria. Counsel is of the position that this suit is related to and connected with trade unions and industrial relations: and will involve a consideration and/or interpretation of the Trade Disputes Act as well as Trade Unions Act. He further argued that the right to picket is provided for under S. 43 (1) of the Trade Unions Act, CAP. T14, LFN, 2004, while ‘trade dispute’ is defined under S. 48 of the Trade Disputes Act, CAP. T8 LFN 2004. He   submitted that the 3rd and 4th defendants have failed woefully in the entire gamut of their written address to demonstrate how and why they think the instant case is outside the jurisdiction of this Honourable Court.

He submitted that this Honourable Court is clothed with the competence and jurisdiction to hear and determine the Claimant’s suit as presently constituted. He urged the court to discountenance the 3rd and 4th defendants’ argument in its entirety and resolve issue one in favour of the claimant.

On the 2nd issue i.e. whether in view of the facts and circumstances of this case, the 3rd and 4th defendants are proper and necessary parties to this suit. It is the submission of counsel that a necessary party is one without whom the issues in question cannot be effectively or effectually determined. He cited the cases of GBADAMOSI V. DAIRO (2001) 6 NWLR PT. 708 P. 137 @ 166 RATIO 4 and BABAYEGU V. ASHAMU (1998) 9 NWLR PT. 567 P.546 @ P. 555. Relying on the decision of the Court of Appeal in the case of ECO BANK NIGERIA PLC V. MICHEAL C. METU & ORS. (2012) LPELR- 20846 (CA) @ P.31 PARAGRAPHS C-E, counsel argued that all the court needs to do in determining whether a party is a proper party to a suit is to examine the claim of the plaintiff before the court. He submitted that a careful look at the originating summons would reveal that the questions submitted to this Honourable court for determination cannot be completely and effectually determined without the 3rd and 4th defendants. He referred to paragraphs 11, 12, 13, 14, 15, 17 and Exhibits O and A attached to the affidavit in support of the originating summons wherein it was deposed that the 3rd and 4th defendants had on 2nd July, 2015 stormed the head office of the claimant, in company of officers a

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