IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA
DATED: 6TH FEBRUARY, 2017 SUIT NO: NICN/ABJ/188/2012
BETWEEN:
- JOHN B. GBERESUU
- CHIEF LAWRENCE ENOCH
- WILLIAMS I. A5URU CLAIMANTS
- OGBONNA WORENWU
- COMRADE TOBIN J. UKUTA
- FESTUS B LEGBARA
AND:
NATIONAL UNION OF PETROLEUM AND
NATURAL GAS WORKERS (NUPENG) DEFENDANTS
REPRESENTATION
GABRIEL OKPATA for the claimant
- AKANBI for the defendant
R U L I N G
The Claimants instituted this action via Amended Complaint with the accompanying frontloaded documents filed on 10th April, 2015, against the defendants for the following reliefs:
- A Declarationthat denying indigenes of Rivers/Bayelsa State and Claimants the rights to registration/membership violates sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Rule 3(i) of the NUPENG Constitution and Rule 15 (1) (m) and (n) of Petroleum Tanker Drivers’ Bye-Laws.
- A Declarationthat subjecting Claimants and their predecessors to torture, brutality, humiliation and degrading human treatment contravenes sections 34 (a) and (b) and 35 (1) of the 1999 Constitution (as amended)
- A Declarationthat denying indigenous members rights to head the union as being practiced in other depots throughout the Federation contravenes the rights of the Claimants against freedom from discrimination entrenched in section 42 of the 1999 Constitution (as amended).
- A Declarationthat systematically manipulating the leadership machinery and apparatus to restrict the population of indigenous members of the union contravenes Claimants rights to freedom from discrimination enshrined in section 34 of the 1999 Constitution (as amended), Rule 3(i) of the NUPENG Constitution and Rule 15(1) (m) & (n) of the P.T.D Bye-Laws providing against polarization of the union.
- A Declarationthat it is unconscionable and unjust in any modern society for indigenous members of a trade union to be excluded from the leadership and control of the union in their home States whereas their counterparts (indigenous members) in other states are in control of the union in their home states of the same Federation.
- f. A Declarationthat it is not in the interest of justice and peace for the indigenous members of the P.T.D Branch of NUPENG in the Port Harcourt Depot, Rivers State to be excluded from the leadership, rulership, control and management of the union for 31 years, contrary to cardinal union practice common in Depots across the States of the Federation.
- A Declarationthat the Claimants having been duly nominated as Caretaker Committee Members of the Petroleum Tanker Divers Branch of NUPENG (P.T.D), Port Harcourt Refinery Depot, Rivers State, are the only persons recognized and entitled as having the authority to head the Chapter.
- An Orderof perpetual injunction restraining the Defendant, their Agents, servants, Privies, their successors etc. from electing and/or appointing non-indigene of Rivers and Bayelsa States as Executives of the Petroleum Tanker Drivers Branch of NUPENG (PTD), Port Harcourt Refinery Depot, Rivers State In Violation Of The Usage, convention and practice applicable to all petroleum depots all over the federation of Nigeria.
The Defendant filed a NOTICE OF PRELIMINARY OBJECTION on 14th November, 2016, objecting to the hearing of this suit for incompetence and lack of jurisdiction by this Honorable court.
Grounds for Preliminary Objection:
- The Claimants have not disclosed thelocus standifor commencing this suit.
- The Claimants have not exhausted the internal dispute resolution processes under the Claimants’ .Union Constitution before commencing this action.
- The Claimants have not exhausted the dispute settlement mechanism prescribed inPart 1 of the extant Trade Disputes Act pursuant to Section 7(3) of the National Industrial Court Act, 2006before commencing this Suit.
- This action is outright incompetent, the Claimants having failed to fulfill the conditions precedent to the exercise of the jurisdiction of Court in this case.In consequence thereof, this Honourable Court lacks jurisdiction to hear and determine this Suit as it is presently constituted.
The defendants filed a WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION with the following ISSUE
Whether the conditions precedent to the activation of this Court’s jurisdiction have been fulfilled to enable this Court to assume jurisdiction over this case.
Learned Counsel A. Akambi Miss, submitted that a Court is competent and has jurisdiction in a case if, inter alia, 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. MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; EYIOLAWI V. MAERSK LINE AGENCY NIG. LTD. & ANOR. (2010) 21 NLLR (PT.58) 154 NIC 2 162 PARA.E-F. She argued that it has been settled by this Court that intra union, inter union and group trade disputes are still governed by the provisions of Part 1 of the extant Trade Disputes Act and that this is a matter that the law provides for the initiation of dispute settlement mechanism commencing from the declaration of dispute, mediation, conciliation, arbitration and then adjudication. Furthermore, that the by virtue of the provisions of Section 7(3) of the National Industrial Court Act, 2006, the jurisdiction of the National Industrial Court on inter and intra union disputes is appellate and not original. In other words, the processes of Part 1 of the TDA must be exhausted before the intervention of the National Industrial Court can be sought. COMRADE ANTHONY AND ANOR V. COMRADE ILODUBA AND ORS. (2010)18NLLR (PT.50)229@240 PARA.D-F.
It is the Defendants Counsel’s submission that, if the Court has no jurisdiction to entertain the matter, it naturally, logically and legally follows that it will not exercise its discretionary powers in favour of the Applicant. Such power will only be exercised when the parties are properly before Court. ASUZU & ANOR. v. AJEWOLE & ORS. (2009) 14 N.L.L.R (Part 39).
The claimants in reaction filed what the tagged ‘CLAIMANTS/RESPONDENTS’ REPLY ON POINT OF LAW IN OPPOSITION TO THE DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION’ which was dated 22nd November, 2016.
Wherein the claimants formulated one sole ISSUE
Whether the Honourable Court is instilled and/or clothed with jurisdiction to entertain this suit.
The Learned Counsel to the Claimant Gabriel Okpata Esq. submitted that Honourable Court is empowered by the provisions of Section 6(6) of the 1999 Constitution of the FRN as amended to hear and determine this suit. He submitted that it has been decided in a plethora of cases that the jurisdiction of a court is the dignity which the court has to do justice in a cause or complaint ,brought before it. It is the limits imposed upon the power of a validly constituted court to hear and determine issues with reference to subject matter, the parties and the relief sought. SOCIETY BIC S.A & ORS. VS. CHARZIN INDUSTRIES LTD (2014)2 S.C. (PT.) 57 @ 8586 PARAS. 35-5; NYESOM VS. PETERSIDE (2016) 7 NWLR (1512) 452 @ 514 PARAS. A-B. Claimant’s Counsel further submitted that where a preliminary objection did not deal strictly with law, there will be need for a supporting affidavit to be filed along with it. A.G FEDERATION VS. ANPP (2003) 18 NWLR (PT.851) 182 AT 207 PARAS.A-D. Contended that furthermore, that rules of court cannot override or supersede the provisions of a substantive law. ELAIGWU VS. TONG ELAIGWU VS. TONG (2016) 14 NWLR (1532) 165 AT 188-189 paras. F-A.
The defendants filed their ‘DEFENDANT’S REPLY ON POINTS OF LAW TO CLAIMANTS AFFIDAVIT AND WRITTEN ADDRESS DATED 22ND DECEMBER, 2016 ‘(filed on 13th December, 2016 and dated 8th December, 2016).
In response to the Claimants/Respondents’ submission at Paragraphs 3.7 and 3.8 of their written address, counsel submitted that, it is still mandatory for inter and intra union disputes such as in this case to go through the settlement process of Part 1 of the Trade Disputes Act, Cap. T8, LFN 2004; ASUZU & ANOR. v. AJEWOLE & ORS. (2009) 14 N.L.L.R (Part 39). Submitting further that even after the 3rd Alteration to the 1999 Constitution, the case of COMRADE ANTHONY AND ANOR v. COMRADE ILODUBA AND ORS (SUPRA) is still the law, on inter and intra union trade disputes. UZOARU & ANOR. v. DANGOTE CEMENT PLC. & ANOR. [2013] 31 N.L.L.R (PART 89) 313.
On 13th December 2016 parties adopted their written addresses, adumbrated their respective positions and this matter was adjourned for this ruling.
Court’s Decision
Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendants application.
The defendants grouse is that the Claimants have not disclosed their locus standi for commencing this suit, neither have they exhausted the internal dispute resolution processes under the Claimants’ .Union Constitution or the dispute settlement mechanism prescribed in Part 1 of the extant Trade Disputes Act pursuant to Section 7(3) of the National Industrial Court Act, 2006 before commencing this action, thereby making this action outright incompetent for failure to fulfill the conditions precedent to the exercise of the jurisdiction of Court in this case. In consequence this Honourable Court lacks jurisdiction to hear and determine this Suit.
The claimants in rebuttal simply refuted the objection maintaining that they possess the requisite locus standi and that they had attempted ADR and that had failed.
The defendants in their written address made heavy weather of the contention that the claimants had not subjected their dispute to the dispute settlement mechanism prescribed in Part 1 of the extant Trade Disputes Act pursuant to Section 7(3) of the National Industrial Court Act, 2006. For that reason I shall address this point first before the question of locus standi per se.
The substratum of this issue is whether or not the jurisdiction of this court to entertain this matter is original, now Section 254(C)1 of the 1999 Constitution as amended provides;
(1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) relating to or connected with any labor, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labor, employee, worker and matters incidental thereto or connected therewith;
(b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labor Act, Employees’ Compensation Act or any other Act or Law relating to labor, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
(c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto;
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labor, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;
(j) Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from;
- relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from;
- trade union dispute or employment dispute as may be recorded in a memorandum of settlement;
iii. trade union constitution, the constitution of an association of employers or any association relating to employment, labor, industrial relations or work place;
Furthermore, Section 7 (1) of the National Industrial Court Act 2006, provides:
“The Court shall have and exercise exclusive jurisdiction in civil causes and matters-
(a) relating to –
(i) labour, including trade unions and industrial relations; and
(ii) environmental and conditions of work, health, safety and welfare of labour, and matters incidental thereto
(b)…..
(c) relating to the determination of ant question as to the interpretation of-
(i)…..
(ii)…..
(iii) …
(iv) any trade union constitution
This means that this court has the exclusive jurisdiction to determine civil clauses and matters relating to trade unions by Section 254 (1) of the 1999 Constitution and Section 7(1) (a) and (c)(iv) of the National Industrial Court Act 2006. The jurisdiction of this court is subject matter based.
The defendants have argued that the claimants are required to go through the procedure of mediation, conciliation and arbitration provided in Part 1 of the Trade Dispute Act Cap T8 LFN 2004.
Section 48 of the Trade Dispute Act Cap T8 LFN 2004 provides that “trade dispute means any dispute between employers and workers or between workers and workers which is connected with employment or non employment, or terms of employment and physical condition of work of any person”.
The claimants’ reliefs are as follows’
- A Declarationthat denying indigenes of Rivers/Bayelsa State and Claimants the rights to registration/membership violates sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Rule 3(i) of the NUPENG Constitution and Rule 15 (1) (m) and (n) of Petroleum Tanker Drivers’ Bye-Laws.
- A Declarationthat subjecting Claimants and their predecessors to torture, brutality, humiliation and degrading human treatment contravenes sections 34 (a) and (b) and 35 (1) of the 1999 Constitution (as amended)
- A Declarationthat denying indigenous members rights to head the union as being practiced in other depots throughout the Federation contravenes the rights of the Claimants against freedom from discrimination entrenched in section 42 of the 1999 Constitution (as amended).
- A Declarationthat systematically manipulating the leadership machinery and apparatus to restrict the population of indigenous members of the union contravenes Claimants rights to freedom from discrimination enshrined in section 34 the 1999 Constitution (as amended), Rule 3(i) of the NUPENG Constitution and Rule 15(1) (m) & (n) of the P.T.D Bye-Laws providing against polarization of the union.
- A Declarationthat it is unconscionable and unjust in any modern society for indigenous members of a trade union to be excluded from the leadership and control of the union in their home States whereas their counterparts (indigenous members) in other states are in control of the union in their home states of the same Federation.
- f. A Declarationthat it is not in the interest of justice and peace for the indigenous members of the P.T.D Branch of NUPENG in the Port Harcourt Depot, Rivers State to be excluded from the leadership, rulership, control and management of the union for 31 years, contrary to cardinal union practice common in Depots across the States of the Federation.
- A Declarationthat the Claimants having been duly nominated as Caretaker Committee Members of the Petroleum Tanker Divers Branch of NUPENG (P.T.D), Port Harcourt Refinery Depot, Rivers State, are the only persons recognized and entitled as having the authority to head the Chapter.
