Incorporated Trustees of the Road Transport Employers Association of TIMBER PRODUCERS ASSOCIATION

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 21^ST JUNE, 2018 SUIT NO: NICN/YEN/43/2017

BETWEEN:

INCORPORATED TRUSTEES OF THE

ROAD TRANSPORT EMPLOYERS’

ASSOCIATION OF NIGERIA (RTEAN)

COMRADE UMANUNYIM IGWE WILSON
COMRADE IKECHUKWU SUNDAY
COMRADE EBIGA ISAAC CHARLES
COMRADE NWACHUKWU DANIEL CLAIMANTS/RESPONDENTS
COMRADE NATHANIEL AKPELU
COMRADE SATURDAY OKONDU
COMRADE ARTHUR RICHARD
CHIEF (COMRADE) ANTHONY IROGBOLU

(For themselves and on behalf of members of

RTEAN of Eleuma Lorry Chapel, Ahoada West L.G.A.)

AND

INCORPORATED TRUSTEES OF TIMBER

PRODUCERS ASSOCIATION OF

NIGER-DELTA (TPAND)

ONYEMSO UGOCHUKWU
FAWEDOKOMU CLARKSON
CHIEF ANTHONY OKPARA
AJERO OBINNA
UZOMA NDUKWE DEFENDANTS/APPLICANTS
NNANNA AJERO
FRIDAY NJOKU
SAMUEL ONYEMSO
ONYEKACHI NDUAGBA

(For themselves and on behalf of members of

Timber Producers Association of Niger-Delta

TPAND, Ahoada West L.G.A.)

REPRESENTATION:

U. Igbaki for the Claimants/Respondents

Henry Otobo for the Defendants/Applicants

RULING/JUDGMENT

By a Complaint and Statement of Facts dated and filed on 6^th March, 2017, the Claimants commenced this suit against the defendants claiming the following reliefs jointly and severally:

A declaration that the defendants having regard to the provisions of Article 3(i) – (vii) titled AIMS & OBJECTIVES of the 1^st Defendant’s Constitution dated 27^th May, 2013 filed with the Corporate Affairs Commission, Abuja, pursuant to section 593(b), Part C of the Companies and Allied Matters Act cannot engage in or compete with and disrupt Claimants’ operations as transport owners, operators of vehicles, trucks, transporters of goods, woods, logs, timber and forestry products at Eleuma, Mbiama and environs and or howsoever.

A declaration that the defendants having regard to the provisions of Article 3 (i) – (vii) titled AIMS & OBJECTIVES of the 1^st Defendant’s Constitution dated 27^th May, 2013 filed with the Corporate Affairs Commission, Abuja, pursuant to section 593 (b), Part C of the Companies and Allied Matters Act cannot engage in or cannot impose monetary levies, cannot levy fines, cannot levy development fees or dues or monetary payments of whatever descriptions on transport owners, operators of vehicles, trucks, transporters of goods, woods, logs, timber and forestry products at Eleuma, Mbiama and environs and or howsoever.

A declaration that the defendants howsoever described and having regard to the provisions of Section 40 of the 1999 Constitution and Article 11 of the African Charter on Human & Peoples’ Rights Act cannot impose monetary levies, cannot levy fines, cannot levy development fees or dues or monetary payments of whatever descriptions and cannot enforce payment of levies, fines or extort monies of whatever descriptions from Claimants’ members, vehicles, trucks, goods and persons as itemized in Articles 8(5), (6), (9)(v)(vi)(vii) of Defendants’ Constitution dated 27/5/2013 or any other documents of the Defendants, Claimants’ members not being members of the 1^st Defendant’s Association.
A declaration that the Claimants and their members not being members of the 1^st Defendant/Association cannot be subjected to the rights and obligations of the 1^st Defendant including imposition of fees, development fees, dues and levies and other monetary payments provided in Articles 8(5), (6), 9(v), (vi), (vii) of the Defendant’s Constitution dated 27/5/2013 or any other documents of the defendants and that any efforts of the Defendants to extend application of the 1^st Defendant’s Constitution howsoever including imposition of fees/levies of whatever descriptions on Claimants and their members and/or at Eleuma/Mbiama is unconstitutional, null and void.

A declaration that any efforts, attempts or any collections of impositions of levies or payments of whatever descriptions by the 1^st Defendant and the 2^nd – 10^th Defendants upon members of the Claimants at Eleuma/Mbiama or howsoever pursuant to the provisions of Article 8(5), (6), 9(v), (vi), (vii) of 1^st Defendant’s Constitution dated 27/5/2013 or any other documents of the Defendants aforesaid is unlawful, illegal, null and void and of no effect whatsoever having regard to the provisions of section 40 of the 1999 Constitution and Article 11 of the African Charter on Human & Peoples’ Rights Act.

An order of injunction restraining the 1^st Defendant and the 2^nd – 10^th Defendants howsoever described either by themselves, agents, servants, privies from further harassing, molesting, intimidating, obstructing or blocking the operations of the Claimants and their members, their trucks, vehicles, goods in the enjoyment or exercise of their rights of association as members of the 1^st Claimant at Eleuma, Mbiama Ahoada West Local Government Area and howsoever in the transport of goods, logs, woods, timber and forestry products.

An order of injunction restraining the Defendants howsoever described either by themselves, agents, servants, privies from further imposing monetary levies, levying fines, levying development fees or dues or monetary payments of whatever descriptions and enforcing payments of levies, fines or extorting monies of whatever descriptions and howsoever from Claimants’ members, vehicles, trucks, goods and persons as itemized in Articles 8(5), (6), 9(v), (vi), (vii) of the 1^st Defendant’s Constitution dated 27/5/2013 or any other documents of the Defendants, the Claimants’ members not being members of the 1^st Defendant’s association.

The sum of N99, 000, 000.00 being general damages and cost of action made up of as follows:

N95, 000, 000.00 general damages
N4, 000, 000.00 being cost of this action.

Upon service of the Originating Processes on the Defendants, the Defendants filed a Memorandum of Conditional Appearance, Statement of Defence, List of Witness and Witness Statement on Oath all dated and filed on 30^th June, 2017 but deemed by order of court on 24^th April, 2018.

It is pertinent to state at this point that, the Defendants also filed a Notice of Preliminary Objection dated and filed on 30^th June, 2017, challenging the jurisdiction of this court to hear and determine this suit on the ground, “that by the combine effect of sections 254(c) of the (Third Alteration) of the 1999 Constitution, section 7 of the National Industrial Court Act 2006, and section 2 of the Trade Unions Act Cap T14, this Honourable Court lacks the jurisdiction to entertain this suit.”

Filed along with the Defendants’ Notice of Preliminary Objection is a Written Address wherein the Defendants/Applicants identified one issue for determination, to wit: “Whether considering the combine effect of Sections 254(C) of the (Third Alteration) of the 1999 Constitution, section 7 of the National Industrial Court Act 2006, and section 2 of the Trade Unions Act Cap. T14, 2004, Laws of the Federation this Honourable Court has the requisite jurisdiction to hear and entertain this suit?”

Upon service of the Notice of Preliminary Objection on the Claimants, the Claimants filed Written Reply in opposition to the said Notice of Preliminary Objection which was dated and filed on 18^th May, 2018, but deemed by order of court on 5^th June, 2018, wherein the Claimants also distilled one issue for the determination of this court, to wit: “Whether this Honourable Court has jurisdiction to hear and determine this action?”

When this matter came up for hearing on 5^th June, 2018, parties adopted their written submissions and made arguments in support of their cases respectively after which the court adjourned the matter to 21^st June, 2018 for Ruling/Judgment.

SUBMISSIONS OF THE DEFENDANTS/APPLICANTS.

While arguing the sole issue identified for determination, learned counsel for the Defendants, Henry Otobo reproduced the reliefs being claimed by the Claimants in this suit, and submitted that, it is the endorsements on the Writ of Summons and Statement of Claim that determine whether a case has disclosed a cause of action as to vest the court with the requisite jurisdiction to entertain the suit unless precluded by other statutory provisions. See Balogun V. Ode (2007) All FWLR (Pt. 358) 1050 ratio 1, and APGA V. Anyanwu (2014) All FWLR (Pt. 735) 243 ratio 2.

That in the instant suit, the claims and reliefs the Claimants are seeking from the court do not fall in line with the provisions of section 254(C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), section 7 of the National Industrial Court Act 2006 and section 2 of the Trade Unions Act Cap T14 LFN 2004, thereby robbing this court of the jurisdiction to entertain this suit.

Learned counsel for the Defendants reproduced the provisions of section 254(C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), section 7 (1) of the National Industrial Court Act 2006 and section 2 (1) of the Trade Unions Act Cap T14 LFN 2004, and argued that since a court of law must have jurisdiction before it can determine the rights of the parties, this court does not have the jurisdiction to hear and determine this suit because the reliefs being sought from the court by the Claimants do not fall into any of the statutory jurisdiction of this court. See Govt. Cross River State V. N.T.A. (2013) All FWLR (Pt. 676) 543 ratio 4.

It was further posited that, both the Claimants and the Defendants are mere associations registered under Part ‘C’ of the Companies and Allied Matters Act as averred in the Statement of Facts, and that the activities of the Claimants and the Defendants are not related to labour, employment, trade unions and industrial relations thereby depriving the court of the jurisdiction to determine this suit.

It was further submitted that, even where it is held that the Claimants’ Association is a registered trade union, the claims and the reliefs being sought from the court by the Claimants do not reveal so, and they failed to attach or exhibit a certificate evidencing the fact of being a registered trade union under the Trade Union Act as required by law.

That jurisdiction is so crucial to trial proceedings that it can be raised at anytime in the stage of the proceedings, and once it is raised the court must resolve it first before taking any further step in the matter because no matter how well the trial is conducted it is liable to be set aside for want of jurisdiction. And that since parties cannot by consent or acquiescence confer jurisdiction on the court, this suit should be dismissed for want of jurisdiction.

By way of adumbration, the Defendants’ counsel submitted further that, contrary to the submission of the Claimants that this suit is a trade union dispute, the claims of the Claimants do not fall within the definition of trade dispute referring to the case of Dr. Taiwo Oloruntoba-Oju & Ors. V. Prof. P. A. Dopamu & Ors. (2008) LPELR-2595(SC).

SUBMISSIONS OF THE CLAIMANTS/RESPONDENTS.

While arguing the sole issue distilled for the determination of this court, learned counsel for the Claimants, K. U. Igbaki submitted that, the claims of the Claimants fall within the jurisdiction of this court as the said claims come under section 2(1) of the Trade Disputes Act, Cap. T8, LFN.

Learned counsel reproduced the provision of section 2(1) of the Trade Disputes Act, and posited that, the instant suit is one between two unions and therefore qualifies as an inter union dispute within the meaning of section 2(1) of the Trade Disputes Act; and that, by section 2(2) of Trade Disputes Act, it is this court that has the jurisdiction to hear and determine the action since the 1^st Claimant is a duly recognized Trade Union under Part ‘C’ No. 29 of the Trade Unions Act. See Tidex (Nig) Ltd V. NUPENG (1998) 11 NWLR (Part 573) 263 at 278, paras. E – G., and Umoren V. Akpan (2008) 16 NWLR (Part 1113) 223 at 235.

It was the further submission of the learned Claimants’ counsel that in the event the court holds that the suit is not a trade dispute involving unions and it lacks jurisdiction to entertain same, the court should transfer the suit to the Rivers State High Court as the court has the jurisdiction to so do.

The Claimants’ counsel finally urged the court to hold that it has jurisdiction to entertain the suit and assume jurisdiction in the matter.

COURT’S DECISION

Having carefully considered the processes, arguments and submissions of counsel in this matter, the issue for determination in this suit to my mind is whether this court has the jurisdiction to hear and determine this suit having regards to the parties and the claims before the court.

While the Defendants/Applicants have argued in the Notice of Preliminary Objection that, this court lacks jurisdiction to hear and determine this suit on the ground that since the parties are not registered Trade Unions the suit does not come within the court’s jurisdictional scope as spelt out in section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Claimants/Respondents on the other hand have contended strenuously that, the suit borders on trade dispute being an inter-union dispute relying on section 2(1) of the Trade Disputes Act, Cap. T8 LFN, 2004 and the case of Tidex (Nig) Ltd V. NUPENG (supra).

There seems to be controversy regarding the status of the parties which needs to be resolved by the court. While the Defendants/Applicants submitted that both the Claimants and the Defendants are Associations registered under PART C of the Companies and Allied Matters Act, the Claimants/Respondents’ contention is that the parties are trade unions duly registered under the Trade Unions Act. I have gone through the averments in the Statement of Facts, and it is clear that in paragraph 1 the Claimants pleaded that the 1^st Claimant is a duly registered trade union under the Trade Unions Act. I have equally gone through the provisions of the Trade Unions Act, and it is clear that contrary to the submissions of the Defendants/Applicants, the 1^st Claimant herein is a duly registered trade union listed as No. 29 of PART C, Third Schedule to the Trade Unions Act, Cap. T14 LFN, 2004, as one of the Senior Staff and Employers’ Associations. It is therefore the 1^st Defendant that is a mere Association and not a registered trade union.

Regarding the issue of jurisdiction of this court to hear and determine this suit, the Claimants/Respondents’ counsel had argued that the parties in this suit are trade unions hence the suit relates to trade dispute which falls within the jurisdictional scope of this court. I do not agree with learned Claimants/Respondents’ counsel in this regard. Counsel has not even shown the court how this suit is a trade dispute. While the 1^st Claimant is a registered trade union, the 1^st Defendant is not and it has not been shown that there is an employer/employee relationship in this case for a trade dispute to have arisen.

Section 48 of the Trade Disputes Act, Cap. T8 LFN 2004, Defines trade dispute as, “means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person.” Since the 1^st Defendant is not a registered trade union and there is no employment relationship established in this case, I am of the view that there is no trade dispute between the parties as being argued by the learned Claimants’ counsel herein. I so find and hold.

Even if it is taken that there is a trade dispute in this case, that will not in any way help the case of the Claimants, as the court will still not be conferred with the jurisdiction to hear and determine this matter in view of the provisions of section 2 of the Trade Disputes Act, Cap. T8 LFN 2004. This section of the Trade Disputes Act requires that parties to a trade dispute must first and foremost exhaust all the dispute resolution processes/mechanisms provided for in the Trade Disputes Act, thereby depriving this court of original jurisdiction over such issues.

The Claimants/Respondents’ counsel has placed so much emphasis and reliance on the case of Tidex (Nig) Ltd V. NUPENG (supra). With respect to the learned Claimants’ counsel, I do not think that case is applicable to the instant case because here we are talking of a dispute between a trade union and an association registered under Part C of CAMA, and there is no employment relationship between the parties.

The Claimants are urging the court to interpret the provisions of Article 3 of the 1^st Defendant’s Constitution filed with the Corporate Affairs Commission pursuant to section 593 (b) of Part C of the Companies and Allied Matters Act. This court does not have the jurisdiction to do that. Section 45 of the Trade Unions Act clearly provides that, “The Companies and Allied Matters Act shall not apply to any trade union or to any Federation of Trade Unions; and the registration of any such body under that Act shall be void.”

May I reiterate the position of the law severally held by this court in so many of its decisions that even though Associations registered under Part C of the Companies and Allied Matters Act have legal capacity to sue and be sued, they do not have such capacity before the National Industrial Court of Nigeria. The court’s jurisdiction does not include bodies registered under Part C of the Companies and Allied Matters Act. See Incorporated Trustees of Tricycle Owners and Operators Association of Nigeria & 3 Ors. V. Federal Ministry of Labour and Employment & 5 Ors. Suit No. NICN/LA/504/2016, judgment delivered by Hon. Justice Elizabeth A. Oji, PhD on Thursday 31^st May, 2018; and the decision of Hon. Justice Auwal Ibrahim, PhD, in Suit No. NIC/EN/49/2011 between Incorporated Trustees of Civil Society Action Coalition of Education for All (CSACEFA) V. Government of Abia State & Ano. Judgment delivered on 20^th November, 2012.

The law is now well settled and elementary that the question of jurisdiction is fundamental to trial proceedings, and it is the relief or the claim in the originating process that determines the jurisdiction of the court. See Owelle Rochas Anayo Okorocha V. Peoples Democratic Party & 4 Ors. (2014) 57 NSCQR, 272 at 339, where the apex court held thus:

“It is very elementary and trite that the question of jurisdiction is very fundamental. The absence of jurisdiction robs a court of any power to adjudicate on a case and the exercise will be in futility. This age long principle had been well pronounced and enunciated in the locus classicus case of Madukolu V. Nkemdilim (1962) 2 NSCC (Vol.2) 374; (1962) 1 All NLR (Pt. 4) 587 wherein the learned jurist Bairamian F.J. said: “Put briefly, a court is competent when-

It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
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
The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”

Looking at the reliefs or claims of the Claimants in this suit, it is clear that they are not within the jurisdiction of this court. The Claimants want the court to interpret the provisions of the 1^st Defendant’s Constitution filed with the Corporate Affairs Commission and hold that the Defendants do not have the powers to either operate vehicles, trucks, transportation of goods, woods, logs, timber or to even levy fines, development fees or dues or any monetary payments on transport owners, operators of vehicles, trucks etc at Eleuma, Mbiama and environs.

I am of the humble view that, if the Claimants’ case had been that, the 1^st Defendant herein not being a registered trade union is engaged in trade union activities, then the court would have assumed jurisdiction in this matter relying on the provisions of section 2 (1) of the Trade Unions Act Cap. T14 LFN 2004 which restricts an unregistered trade union from functioning as one.

The said section 2 of the Act is reproduced hereunder:

“2(1) A trade union shall not perform any act in furtherance of the purposes for which it has been formed unless it has been registered under this Act: provided that nothing in this subsection shall prevent a trade union from taking any steps (including the collection of subscriptions or dues) which may be necessary for the purpose of getting the union registered.”

But that is not the case of the Claimants, and it is not the duty of the court to reframe the case of parties before the court.

In the final analysis, I am of the view that based on the reasons advanced above and the authorities cited and relied upon, the defendants not being registered trade unions and since there is no employment relationship in this case, the court has no jurisdiction to hear and determine this suit. The sole issue identified by this court for determination is therefore resolved against the Claimants/Respondents. The Defendants/Applicants’ Notice of Preliminary Objection therefore succeeds, and the court hereby declines jurisdiction to entertain this suit.

On the appropriate order to make, the Claimants/Respondents’ counsel had urged the court to in the alternative transfer the case to the Rivers State High Court. Learned counsel however did not show the court how the matter falls within the jurisdiction of the Rivers State High Court.

In the circumstance, I am of the view that since dismissing the case will not serve the interest of justice, the appropriate order to make is one striking out the matter. This suit is hereby struck out accordingly.

Ruling/Judgment is entered accordingly.

I make no order as to cost.

Hon. Justice P. I. Hamman

Judge