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MOBIL PRODUCING NIGERIA UNLIMITED VS PATIENCE EBITU & 26

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 19TH MARCH, 2019  

                       

SUIT NO: NICN/UY/28/2018

 

BETWEEN:

 

MOBIL PRODUCING NIGERIA UNLIMITED

 

CLAIMANT

 

 

AND

  1. PATIENCE EBITU
  2. AFFIONG ETIM
  3. WILLIAMS WILLIAM
  4. ALBERT UMANA
  5. AMOS OWOO
  6. EDWARD FOMBO
  7. AREMU ADEDOYIM
  8. BASSEY OKON
  9. BASSEY OKON
  10. BEMAKIRE AKIRE
  11. CHARLES CHARLES
  12. CHARLES OKON
  13. CHIMEZIE DAVID                      
  14. DAVIS NDEDU                                      
  15. EDEDET AKPAN
  16. EDEM BASSEY
  17. EDET ASUQUO
  18. EDET BEN
  19. EDO DANIEL
  20. EFFIOM OKOM
  21. HELEN NATHENIAL
  22. ELIJAH CHARLES
  23. ELIZABETH BOCO
  24. EMMANUEL AKPAN
  25. EMMANUEL ASSAM
  26. EMMANUEL BASSEY
  27. EMMANUEL OBOT

 

DEFENDANTS/RESPONDENTS

 

REPRESENTATION:

 

  1. I. UMECHE WITH ENO E. INYANG FOR THE CLAIMANT
  2. I. IMEH FOR THE DEFENDANTS

JUDGMENT

On 18th July, 2018, the claimant filed an Originating Summons against the defendants praying for the determination of the following questions:

  1. Whether having regard to the combined provisions of section 43 of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004 (as amended), the Defendants can picket the Claimant’s premises in a manner that prevents the Claimant from peaceful enjoyment of its premises, to wit: (i) Qua Iboe Terminal, Ibeno, Akwa Ibom State; (ii) Management House Estate Marina Road, Eket, Akwa Ibom State; and (iii) Mobil Guest House, Marina Road, Eket, Akwa Ibom State.

  1. Whether having regard to the combined provisions of section 43 of the Trade Unions Act, Cap. T14 Laws of the Federation of Nigeria, 2004 (as amended), the Defendants can picket the Claimant’s premises in a manner that prevents the Claimant, its employees and trade suppliers from gaining access to the said premises without fear of attack and lawfully carrying out their lawful business operations.

  1. Whether having regard to the combined provisions of section 43 of the Trade Unions Act, Cap. T14 Laws of the Federation of Nigeria, 2004 (as amended) the Defendants can picket the Claimant’s premises in a manner that can lead to a breach of public peace and order.

In the determination of these questions, the Claimants sought for the following Reliefs:

  1. A Declaration that the Defendants cannot picket the Claimant’s premises in a manner that prevents the Claimant and its employees from peaceful enjoyment of and gaining free access to its premises, to wit (i) Qua Iboe Terminal, Ibeno, Akwa Ibom State; (ii) Management House Estate Marina Road, Eket, Akwa Ibom State; and (iii) Mobil Guest House, Marina Road, Eket, Akwa Ibom State.

  1. A Declaration that the Defendants cannot picket the Claimant’s premises in a manner that prevents the Claimant, its employees and its trade suppliers from gaining access to the said premises without fear of attack and lawfully carrying out their lawful business operations.

  1. A Declaration that the Defendants cannot picket the Claimant’s premises in a manner that can lead to a breach of public peace and order.

  1. An order of perpetual injunction restraining the Defendants herein, whether by themselves, agents, assigns, servants or privies, anyone acting through them or any of them howsoever designated from disturbing or interfering in any manner whatsoever with the Claimant’s peaceful enjoyment of its premises (including residential buildings) and the conduct of the operations thereat.

  1. An order of perpetual injunction restraining the Defendants herein, whether by themselves, agents, assigns, servants or privies, anyone acting through them or any of them howsoever designated from blocking access to the Claimant’s premises, to wit: (i) Qua Iboe Terminal, Ibeno, Akwa Ibom State; (ii) Management House Estate Marina Road, Eket, Akwa Ibom State; and (iii) Mobil Guest House, Marina Road, Eket, Akwa Ibom State.

  1. An order of perpetual injunction restraining the Defendants herein, whether by themselves, agents, assigns, servants or privies, anyone acting through them or any of them howsoever designated from picketing the Claimant’s premises in a manner that can lead to a breach of public peace and order.

  1. An order of perpetual injunction restraining the Defendants herein, whether by themselves, agents, assigns, servants or privies, anyone acting through them or any of them howsoever designated from preventing the Claimant, its employees and its trade suppliers from gaining access to the said premises without fear of attack and lawfully carrying out their lawful business operations.

 

In support of the Originating Summons, the Claimant filed a 12 paragraphs affidavit (but numbered as 10 paragraphs) with 2 Exhibits deposed to by Eno E. Inyang and a written address in accordance with the rules of this court. In their reaction, the Defendants by leave of court filed a Counter-Affidavit of 13 paragraphs with 5 exhibits deposed to by the 3rd Defendant and a written address settled by Fumi Falana. In response, the Claimant on 18th January, 2019 filed a Further Affidavit in Support of Claimant’s Motion Originating Summons dated August 10, 2018” (sic) and a Reply on Points of Law. With this, the parties adopted their written addresses with further adumbrations on 25th February, 2019.

CLAIMANT’S CASE:

 

The Defendants were former employees of the Claimant, who have some grievance with the Claimant, and have as a result been picketing the Claimant’s business and residential premises since July 13, 2018. Rather than picket in a peaceful manner as prescribed by the relevant provisions of the Trade Union Act, the Defendants have, since July 13, 2018 barricaded/blocked access to and from the Claimant’s business and residential premises, to wit, (i) Qua Iboe Terminal, Ibeno, Akwa Ibom State; (ii) Management House Estate, Marina Road, Eket, Akwa Ibom State and (iii) Mobil Guest House, Marina Road, Eket, Akwa Ibom State. And by so doing, the Defendants have prevented the Claimant’s employees, visitors and trade suppliers from attending to official and personal engagements, ultimately crippling the Claimant’s operations.

 

DEFENDANTS’ CASE:

The Claimant employed the defendants but were treating them as SPY Police of the Nigeria Police Force, so the Defendants proceeded to Federal High Court against the Claimant to ascertain their employment status. From the Federal High Court, the case went to the Court of Appeal, where judgment was given in favour of the Defendants on 21st May, 2009, that is, to the effect that they are employees of the Claimant entitled to all the benefits, rights, emoluments, privileges, immunities, conditions of service applicable to Claimant’s staff. This judgment was affirmed by the Supreme Court on 20th April, 2018.

The Defendants posited that they neither picketed the claimant’s business or its residential premises at any time anywhere. And that instead of complying with the judgment of the Court of Appeal as affirmed by the Supreme Court the claimant hurriedly invited the Defendants to a Guest House in Victoria Island, Lagos State for a meeting with the management as judgment creditors. Little did the Defendants know that meeting was a ploy by the Claimant to lure them out of their various duty posts to enable the private security outfit the Claimant contracted to take over positions of the Defendants. That on coming back from the meeting, they discovered that the entrance and the exit gates to and from the place of work have been locked by the management of the claimant and all their properties and personal effects were locked in the Claimant’s premises. That all efforts made by the Defendants to gain access to collect their belongings proved abortive. That in a peaceful protest the Defendants decided to hire chairs and canopy to sit down beside the road, outside the Claimant’s premises until the properties and personal effects locked in their premises are given to the Defendants. That it was not until August, 2018 when Claimant decided to open the premises that the Claimant stopped the protest. There was nothing like picketing.

 

CLAIMANTS’ SUBMISSIONS IN SUPPORT OF THE ORIGINATING SUMMONS

 

The Claimant formulated two (2) issues for determination, to wit:

  1. i)Whether the Defendants can as part of their picketing activities block access to the Claimant’s premises thereby disrupting and interfering with the Claimants’ operations at the affected premises contrary to the manifest intention of section 43 of the Trade Unions Act?

 

  1. ii)Whether the Claimant is entitled to the grant of orders of perpetual injunction in the circumstances of this case.

 

Issue 1:          Whether the Defendants can as part of their picketing activities block access to the Claimant’s premises thereby disrupting and interfering with the Claimants’ operations at the affected premises contrary to the manifest intention of section 43 of the Trade Unions Act?

 

On this issue, the Claimant started by quoting Section 43 (1) of the Trade Unions Act:

“It shall be lawful for one or more persons, acting on their own behalf 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 merely for the purpose of peacefully obtaining or communicating information or of peaceful persuading any person to work or abstain from working.”

To the Claimant, the effect of the foregoing is that where there is a trade dispute between erstwhile employees of a company and the company, such persons are permitted by law to picket the company’s premises provided they do so in a peaceful and orderly manner. In spite of this, the Claimant posited that the right to picket is not at large as it does not permit the Defendants to disrupt the operations of the Claimant or prevent access to the Claimant’s premises as shown in the supporting affidavit.

The Claimant submitted that the picketing by the Defendants which resulted in the disruption of the operations of the Claimant and prevention of the access to the Claimant’s premises, are a breach of the Claimant’s rights to property and the incidental rights to enjoy a peaceable and undisturbed possession to their property. The Claimant went further to submit that the right to property and freedom of movement are constitutionally guaranteed by Sections 43 and 41 & 35 of the 1999 Constitution as amended. In support of this, the Claimant also cited the cases of Timothy v. Oforka (2008) 9 NWLR (pt. 1091) 204 @216 para G-H and Lawrence Na’aji Teumpenkenso v. Alhaji Sani Ahmadu Ribadu & Anor (2017) LPELR CA/YL/130/2016, where the Court of Appeal held as follows:

 

“The right to own property is a feature of the Nigeria Constitution and by this provision, every Nigerian citizen has a right to acquire and own immovable properties anywhere in Nigeria without him being discriminated upon or molested except as the Constitution provides”

             

While submitting that the Defendants right to picket stops, where the Claimant’s right to access its premises unhindered begins, the Claimant posited that Section 43 (1) of the Trades Dispute Act, which does not lend itself to any confusion, should be given its ordinary plain interpretation relying on the case of NNPC v. Famfa Oil Ltd (2012) 17 NWLR Part 1328 at Page 148, where the Supreme Court held as follows:

“In the interpretation of statutes, the words used must be given their ordinary meaning and interpretations must be done to bring the clear intentions of the legislature.”

 

It is the further submission of the Claimant that parliament did not intend that the Claimant should be prevented from carrying out its lawful business by the Defendants in the cause of expressing their grievance by picketing. The Claimant also reiterated that the Defendants’ actions are adversely disrupting the business operations of the Claimant which will ultimately impact negatively on the Claimant to fulfil its financial obligations to the Government of the Federal Republic of Nigeria and preventing the Claimant’s employees and their families from exercising their right to freedom of movement.

The Claimant therefore submitted that since the disruption of the Claimant’s operations by the Defendants cannot be described as peaceful, the only other remedy is for the Court to declare those disruptive actions as unlawful and perpetually restrain the Defendants from further interfering or disturbing the peaceful possession and enjoyment by the Claimant of its premises.

Issue 2:          Whether the Claimant is entitled to the grant of orders of perpetual injunction in the circumstances of this case?  

 

On this issue, the Claimant submitted that if the Court holds that the rights of the Defendants to picketing are not at large and does not extend to interfering with the property rights and right to movement of the Claimant’s employees and their families, the logical consequential order to make so as to prevent the reoccurrence of the wrongful conduct of the Defendants is a perpetual order restraining the Defendants from further preventing access to the Claimant’s premises and/or interfering with the Plaintiff’s operations.

On the nature of a perpetual injunction, the Claimant cited the Court of Appeal case of Achebe v. Mbanefo & Anor (2017) LPELR – 41884 (CA), wherein the court stated that a perpetual order will finally settle the dispute between the parties, being made as the result of an ordinary action, the Court having heard in the ordinary way the arguments on both sides and come to final decision.

In conclusion, the Claimant urged the Court to grant the reliefs sought on the strength of its arguments and on the basis that the Claimant has satisfied all the conditions precedent for the grant of the reliefs.

DEFENDANTS’ SUBMISSIONS IN OPPOSITION TO THE ORIGINATING SUMMONS

In opposing this suit, the Defendants formulated three issues for determination, which are as follows:

  1. Whether in the circumstances of this case the action of the Defendants amounts to picketing under the provision of section 43 of the Trade Union Act.

 

  1. Whether the Defendants action if found by this honourable to be picketing violated the provision of section 43 of the Trade Union Act.

 

(iii)     Whether the claimant is entitled to the grant of orders of perpetual injunction in the circumstances of this case.

 

Issue No. 1:   Whether in the circumstance of this case the action of the defendants amounts to picketing under the provision of section 43 of the Trade Union Act.

 

On this issue, it is the contention of the defendants that they did not picket the claimant’s properties and that their action does not fall within the provision of section 43 of the Trade dispute Act to warrant being referred to as picketing.

The Defendants referred to and quoted section 43 (1) of the Trade Union Act and submitted that for an action to qualify as picketing under the section, the action must be in contemplation or furtherance of a trade dispute and that the action must be to obtain or communicate information or persuade any person to work or abstain from work.

 

Applying the above to the facts of this case, it is submitted by the Defendants that in this case the Defendants were no more the employees of the claimant as at the time of the alleged picketing and that their action was not in contemplation or furtherance of trade dispute or to persuade any person to work or abstain from work.

In further support of the above argument, the Defendants cited the provision of section 54 of the Trade Union Act, Cap. T4 Laws of Federation of Nigeria 2004, which defined trade dispute as any dispute between employers and workers or workers and workers, which is connected with employment or non-employment or the terms of employment and physical conditions of work of any person.

 

It is therefore the submission of the Defendants that their action or protest cannot be said to be in contemplation or furtherance of a trade dispute as they had seized to be employees of the claimant and they never protested against the termination of their employment or the terms of their employment and physical condition of work.

Issue 2:          Whether the defendants action if found by this Honourable to be picketing violated the provision of section 43 of the Trade Union Act.

 

On this issue, the Defendants’ contention is that assuming without conceding that they have picketed, their protest was peaceful and did not violent the provision of section 43 of the Trade Dispute Act.

The Defendants also submitted that the above assertion is confirmed by the refusal of the Nigeria Police Force to restrain them as requested by the Claimant and that if the defendants were not peaceful, the claimant would have used the Nigerian Police Force to get them arrested and charged to court for violating the provision of Section 43 (2) of the Trade Dispute Act.

 

The Defendants invited the court to note that the protest embarked upon by the defendants was as a result of the refusal of the Claimant to allow them access to the premises to collect their personal belongings in the premises, which amounted to violation of the provision S. 18 of the Trade Dispute Act. Referring to the equitable maxim; “He that comes to equity must come with clean hands”, the Defendants maintained that if they were not locked out by the Claimant the protest wouldn’t have taken place.

 

The Defendants on the authority of Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) pg. 417 at 432 paras 0-F per Adio, JSC, submitted that the onus of proving that the action of the defendant was not peaceful is on the claimant and from what the claimant has placed before the court, there is nothing to prove that the protest of the defendants was not peaceful.

 

It is the further contention of the Defendants that for picketing under section 43 of the Trade Union Act to be regarded as not being peaceful, the picketing must have resulted to a criminal act, like physical assault, threat to life etc. and not on mere allegations of barricading the entrance and exit of the claimant’s facilities as in the instant case relying on sections 43 (2) and 44 of the Act. It is therefore the submission of the Defendants that their protest was peaceful and in line with the provision of the law as confirmed by the Police and a fact deposed to in the counter-affidavit of the Defendants.

Issue 3:          “Whether the claimant is entitled to the grant of orders of perpetual injunction in the circumstances of this case“.

 

On this issue, the Defendants submitted that the claimant has not been able to put before the court materials to convince the court to grant an order of perpetual injunction in its favour. The Defendants also submitted that not only that the claimant has not established that the protest was violent but there is nothing to show that the entry or exit gate of the Claimant was barricaded by the Defendants.

According to the Defendants, it is trite that for a court to grant an order of perpetual injunction, the court must be convinced that the claimant has proved its case on the balance of probability or the preponderance of evidence. In support of this proposition of the law, the Defendants quoted the dictum of Niki Tobi, JCA (as he then was) in the case of Adeniran v. Alao (1992) 2 NWLR (Pt. 223) P. 350 at 372:  

” … I have taken the trouble to draw the distinction to emphasis the nature and the almighty role of perpetual injunction plays in the judicial process. In my humble view, a court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction because of its nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

Similarly, the Defendants posited that it is settled that for the claimant to be entitled to order of perpetual injunction he must prove that the acts are being continued and/or that the defendants have threatened to commit further acts citing to the case of Okoye v. Kpajie  (1972) 6 SC 176. It is therefore the submission of the Defendants that the claimant in this case has not been able to prove that the defendants are continuing with the acts or that they have threatened to continue with the acts.

On the authorities of Fasesan v. Oyerinde (1997) 11 NWLR (Pt.530) 552, 561 and AFROTEC Services (Nigeria) Limited v. M.I.A & Sons Limited (2000) 15 NWLR (Pt. 692, and on the equitable maxim of “he who comes to equity must come with clean hands”, the Defendants submitted that the Claimant cannot get the equitable relief of perpetual injunction. After all, he who comes to equity must come with clean hands. After all, the claimant in this case brought about the protest embarked upon by the defendants when it locked the personal belongings and properties of the claimant and not give them access to the premises contrary to section 18 of the Trade Dispute Act.

In conclusion, the Defendants submitted that having established that their protest was peaceful and that it does not fall within the scope of section 43 of the Act, the court should dismiss this suit with substantial cost.

 

CLAIMANTS’ REPLY ON POINTS OF LAW:

In response to the Defendants’ Final Written Address, the Claimants filed a reply on points of law and a Further Affidavit in Support on the 18th January, 2019.

Relying on the Further Affidavit deposed to by Oluwamayokun David, the Claimant responded to the three issues submitted for determination by the Defendants. The Claimant recounted the submissions of the Defendants, in which relying on section 54 of the Trade Union Act, they argued that the action of the Defendants does not amount to picketing under section 43 of the Trade Union Act in that their action was not in contemplation of a trade dispute or persuading any person to work or abstain from work and that the Defendants were no longer employees of the Claimant. To this, the Claimant submitted that the Defendants action was in furtherance of a dispute between them and the Claimant, being a trade dispute on the refusal of the Claimant to recognize the Defendants as its employees pursuant to the judgment of the Supreme Court.

Quoting the definition of a trade dispute under section 54 of the Trade Union Act, the Claimant further submitted that it is erroneous for the Defendants to argue that because the Defendants were former employees of the Claimant at the time of the unlawful picketing, there was no trade dispute between the parties to render their action as picketing under section 43 of the Trade Union Act. In support of this, the Claimant referred to the Court of Appeal case of Abdulraheem v. Oloruntoba-Oju (2006) 15 NWLR (Pt. 1003) 5 where the kernel of the case was the alleged termination of the appointment by the appellants for the participation in a national strike of ASUU. The Claimant advanced that the point being made in this case is that despite the fact that the Plaintiffs/Respondents were no longer staff of the University at the time of instituting the action at the trial court, the Court of Appeal still held that the dispute was a trade dispute being an issue connected to their employment and non-employment. It is therefore the submission of the Claimant that on the authority of the above case a trade dispute can exist between an employer and its former employee(s) as in the instant case. Based on the foregoing, the Claimant urged the court to reject the position of the Defendants that their action does not amount to picketing under section 43 of the Trade Union Act.

The Claimant’s reply on whether the Defendants’ action if found to be picketing violated the provision of section 43 of the Trade Union Act, would be considered in the course of this judgment.

As for the issue of not placing enough materials for the grant of the relief of perpetual injunction, it is only the Claimant’s reply on Adeniran v. Alao (supra) that will be considered for reason to be known in due course. The Claimant submitted that the case of Adeniran v. Alao (supra) relied upon by the Defendants does not support their case. The Claimant noted that the case was a land matter in which the Court of Appeal after a careful consideration of the evidence led by the plaintiff in support of the award sought for title to land, held that the plaintiff failed woefully to establish due authentication and due execution of the Deed of Conveyance and therefore failed to prove his case. The Claimant submitted that unlike in the case of Adeniran v. Alao, the Claimant in the instant case had placed before the court credible, sufficient and unchallenged documentary evidence to entitle it to the reliefs sought.

By way of adumbration while adopting their final written address, the Defendants emphasised that all they did was to protest the lock out by the Claimant in a peaceful manner as averred in paragraphs 9 and 10 of their Counter-Affidavit, which were not controverted and therefore deemed admitted. The Defendants also took a swipe at the exhibits annexed to the Further Affidavit of the Claimant, particularly exhibit A-4, which are pictures purported to show the Defendants protesting and blocking MHE Phase 3, QIT, MHE/MGT Top Main Gate, Mobil Airstrip gate and Mobil Admin E gate. To the Defendants there is nothing in these pictures to show that there was a barricade by the Defendants or the pictures were the Claimant’s gate. As for exhibits A-5 and A-6, which are letters from the Federal Ministry of Labour, the Defendants posited that the letters were not addressed to them but to the Claimant’s Managing Director and the General Secretary of PENGASSAN. It was only in exhibit A-6 that an attempt was made to address the letter to Femi Falana Chambers instead of Falana and Falana Chambers. Under the circumstance, it is the submission of the Defendants that since they are not aware of these letters, they cannot be bound by them. The Defendants also took time to distinguish the case of Abdulraheem v. Oloruntoba-Oju (supra) relied on by the Claimant to argue that a trade dispute can exist even where one of the parties is a former employee. Noting that the case went on appeal to the Supreme Court where it was upturned, the Defendants stated that in that case the Respondents were members of the Academic Staff Union of Universities (ASUU), Ilorin branch who embarked on strike by boycotting classes which led to the termination of their appointments. A trade dispute was therefore declared and the dispute referred to the Industrial Arbitration Panel (IAP) and it was on the basis of this that the Court of Appeal ruled in favour of the Appellant. It is therefore the submission of the Defendants that since nobody declared any trade dispute in the instant case coupled with the admission of the Claimant in paragraph 4 of its affidavit in support that the Defendants were not employees of the Claimant, there cannot be any trade dispute in line with the Trade Union Act. Finally, the Defendants submitted that since even from the affidavit of the Claimant the Defendants stopped the protest since August, 2018, this suit is now an academic exercise and should be dismissed with substantial cost.

In its reply on point of law to the submission of Defendants while adopting their final address, the Claimant stated that it is not true to say that the Defendants were not aware of the exhibit A-6 as the records of this court before Hon. Justice Oji, showed that Femi Falana, SAN, appeared for the Defendants. This was on the 20th August, 2018 while exhibit A-6 itself was dated 28th August, 2018. On the submission of the Defendants that the Claimant did not controvert paragraphs 9 and 10 of their Counter-Affidavit to the effect that the protest on the lock out by the Claimant was peaceful, the Claimant’s simple response was that paragraph 3 (ix) of exhibit A-5 and exhibit A-6 amounted to specific denials of the said paragraphs. The Claimant relied and supplied the authority of National Electoral Commission & Ors v. Sunday O. Wodi (1989) 2 NWLR (Pt. 104) 444 in which the Court of Appeal held that exhibits annexed to an affidavit are part of the affidavit and should be considered by the court. Thus, where the contents of an exhibit attached to an affidavit filed effectively debunks the averments in the affidavit, the court should accept the contents of the exhibit as a proper denial. The above authority was supplied to the Registry of this court and copied to counsel of the Defendants vide a letter dated 27th February, 2019. On the existence of a trade dispute, the Claimant replied that it was a common ground between the parties that the Defendants’ action started when the Claimant announced the termination of the appointment of the Defendants. The Claimant reiterated its stand on the case of Abdulraheem v. Oloruntoba-Oju (supra) to the effect that there can be a trade dispute even when a party was a former staff and submitted that a trade dispute can occur even at the point of termination of appointment. Finally, the Claimant submitted that the claim by the Defendants that the protest was because of the holding over of their belongings was clearly an after-thought.

 

DECISION OF THE COURT

I have carefully gone through the originating summons, written submissions and heard learned counsel for the parties and would adopt the two (2) issues formulated by the Claimant in the determination of this suit, to wit:

  1. i)Whether the Defendants can as part of their picketing activities block access to the Claimant’s premises thereby disrupting and interfering with the Claimants operations at the affected premises contrary to the manifest intention of section 43 of the Trade Union Act?

 

  1. ii)Whether the Claimant is entitled to the grant of orders of perpetual injunction in the circumstances of this case?

 

In the consideration of these issues, the issues raised by the Defendants will come to the fore. But before I do that, it is pertinent to consider the Claimant’s Reply on Points of Law filed on 18th January, 2019. Apart from the Claimant’s reply on whether the action of the Defendants amounts to picketing under section 43 of the Trade Union Act and to some extent Adeniran v. Alao (supra), all the Claimant did was to rehash, reargue and sometimes seek to improve on its previous arguments. This is not the purport or function of a reply. A reply on point of law is not supposed to be a repair kit to correct an error or lacuna in the initial brief of argument. It was Niki Tobi, J.S.C. (of blessed memory) who in the case of Ogolo v. Fubura (2003) 11 NWLR (Pt. 831) 238, held:

 

“Counsel for the appellants as well as counsel for the 1st set of plaintiffs/respondents repeated themselves in their reply briefs. A reply brief should be limited or restricted to answering any new points arising from the respondent’s brief and not to repeat points already made or dealt with in the appellant’s brief. It is not the function or role of a reply brief to improve on the appellant’s brief by repeating the arguments contained therein but rather to reply to new points which are substantial in the respondent’s brief.”

See also the Supreme Court case of Basinco Motora Limited v. Woermann Line & Anor (2009) 13 NWLR (Pt. 1157) 149. Since the reply of the Claimant are a mere repetition of the arguments in the final address and therefore a clear negation of above principles, I have no option but to discountenance the said issues for the purpose of this judgment. I so hold. 

Another preliminary issue worthy of consideration before the merit of case is the submission of the Defendants that since the protest stopped in August, 2018, this suit has become an academic exercise. I agree with the Claimant’s response on this that since the suit is challenging the legality of the Defendants’ action/picketing, the Claimant’s cause of action cannot be defeated by subsequent events. It should be noted that this suit is a declaratory one in which the court is called upon to exercise its discretionary powers to pronounce or declare an existing state of affairs in law. It is settled law that a declaration will be granted even when the relief has been rendered unnecessary by the lapse of time for the action to be tried, if at the time action was brought, it raised substantial issues of law. See the case of CBN v. Amao & 2 Ors (2010) 5 -7 S.C. 30-31. The case of the Claimant is therefore not an academic exercise by a long shot.

                       

I will now take the issues as submitted by the Claimant in turns and in so doing will only repeat the arguments of parties where necessary.

 

  1. i)Whether the Defendants can as part of their picketing activities block access to the Claimant’s premises thereby disrupting and interfering with the Claimants operations at the affected premises contrary to the manifest intention of section 43 of the Trade Union Act?

Now the Claimant’s suit is predicated on section 43 of the Trade Union Act, the provision governing the right to picket. The manifest intention of this section can only appreciated upon a calm interpretation of the section in the light of some statutory provisions and case law authorities. At the risk of repetition, section 43 of the Trade Union Act provides as follows:

“It shall be lawful for one or more persons, acting on their own behalf 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 merely for the purpose of peacefully obtaining or communicating information or of peaceful persuading any person to work or abstain from working.”

A Casual look at this provision reveals at least three conditions for lawful picketing:

  1. a)The picketing is in contemplation or furtherance of a trade dispute;
  2. b)The pickets are attending at or near their place of work;
  3. c)The purpose to peacefully obtain or communicate information or peacefully to persuade a person to work or not work.

The application of these conditions to the facts of the instant case elicited different reaction from the parties. Defendants contented that their action does not amount to picketing under section 43 of the Trade Union Act since they were no longer in the employ of the Claimants, their action was not in in contemplation or furtherance of a trade dispute or in persuasion of any person to work or abstain from working. The Claimant countered this by asserting that the action of the Defendants was in furtherance of a trade dispute, the dispute being its refusal to recognize the Defendants pursuant to the decision of the Supreme Court and the termination of the Defendants’ appointment with the Claimant.

The divergent positions calls for exposition of what is a trade dispute. Section 54 of the Trade Union Act defined trade dispute as:

 

“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 or conditions or work of any person.”

Section 48 (1) of the Trade Dispute Act is also similarly worded or couched. This definition have also received judicial impetus in the cases of Anigboro v. Sea Trucks (Nigeria) Limited (1995) 6 NWLR (Pt. 399) 35, Apena v. N.U.P.P.P.P. (2003) 8 NWLR (Pt. 822) 426 and Carnaud Metal Box (Nigeria) Plc v. Agwele (2009) 17 NWLR (Pt. 1171) 487 CA to mention but a few. It has also brought to focus the challenge by the Defendants that their action cannot be grounded on section 43 of the Trade Union Act for failure to disclose any trade dispute particularly when the Defendants were no longer staff of the Claimant. In spite of the fact that there was a consensus that the Defendants have ceased to be staff of the Claimant, the Claimant has argued forcefully that the trade dispute in the instant case was the refusal of the Claimant to recognize the Defendants as its employees pursuant to the judgment of the Supreme Court and the termination of the appointment of the Defendants. The Claimant further argued that on the authority of Abdulraheem v. Oloruntoba-Oju (supra), a trade dispute is possible even where a party is no longer in employment or even at the point of termination. This assertion calls for close look at the case. At the Federal High Court, it was held that the termination of the appointment of the plaintiffs was wrongful and illegal entitling the plaintiffs to reinstatement and the payment of salaries, allowances etc. This decision was reserved by the Court of Appeal on the basis that the subject matter had elements of a trade dispute and that the Federal High Court was not the proper venue but National Industrial Court. On further appeal to the Supreme Court, it was held that the issue of cessation or termination of employment appellants has no connotation of a trade dispute and the Court of Appeal erred in holding that the Federal High Court had no jurisdiction to entertain the case. The Supreme Court case is reported as (2009) 13 NWLR (Pt. 1157) 83-148. It is very clear the Claimant is attributing to the case what it did not say. I therefore entirely agree with the Defendants that that case is not applicable to the facts of the instant case.

On the issue of trade dispute in respect to terminated staff, the position of the Claimant is against the grain of all statutory provisions and judicial authorities. Sections 43 and 54 of the Trade Union Act, section 48 (1) of the Trade Dispute Act as well as the cases of Isheno v. Julius Berger Nigeria Plc (2008) 6 NWLR (Pt. 1084) 587, Ekong v. Oside (2005) 9 NWLR (Pt. 929) 102 and New Nigerian Bank Plc v. Osoh (2001) 13 NWLR (Pt. 798) 232 are against the stance of the Claimant on this issue. In fact, the case of Sea Trucks (Nigeria) Limited v. PYNE (1995) 16 NWLR (Pt. 400) 116, went as far as holding that even a case of wrongful dismissal between a master and servant based on their contract of employment cannot qualify as a trade dispute.

According to the Supreme Court in the case of National Union of Electricity Employees v. Bureau of Public Enterprises (2010) NWLR (Pt. 1194) 538, before a dispute can be said to be a trade dispute, the following conditions are not only necessary but inevitable:

  1. a)There must be a dispute;
  2. b)The dispute must involve a trade;
  3. c)The dispute must be between employers and workers; or workers and workers;
  4. d)The dispute must be connected with the employment or non-employment and the terms of employment and physical conditions of work of any person.

See Oloruntoba-Oju v. Dopamu (2008) 7 NWLR (Pt. 1085) 1 SC, Oshiomole v. F.G.N (2007) 8 NWLR (Pt. 1035) 58 and Apena v. N.U.P.P.P.P. (2003) 8 NWLR (Pt. 822) 426. 

The question then is what is the dispute in this case? Whatever dispute that existed between the parties on the employment status of the Defendants was settled by the judgment of the Supreme Court in suit no. SC. 33/2010 delivered on 20th April, 2018. The enforcement or implementation of the said judgment cannot, in my opinion, be a subject of further dispute, trade or otherwise.

From the foregoing it is safe to find and hold that the Claimant did to fulfilled the conditions necessary in bringing this case in the manner canvassed within the manifest intentions of sections 43 and 54 of the Trade Union Act. Having failed to bring the case within the purview of the law, the issue of picketing and its legality cannot be of any moment and I so hold.

  1. ii)Whether the Claimant is entitled to the grant of orders of perpetual injunction in the circumstances of this case?

Having failed to prove the main claims, which are declaratory, the simple answer to this issue is in the negative. This is because the claims for an injunction naturally depend on the success or otherwise of the declaratory reliefs claimed. In other words, the grant of the relief of perpetual injunction is a consequential order which should naturally flow from declaratory order sought and granted by court. See the cases of Obi v. Mbionwu (2002) 6 S.C.N.J. 292 and Afrotec v. MIA & Sons (2000) 12 S.C.N.J. 344, Obi v. INEC (2007) 7 S.C.N.J. 26- 27 and Oloruntoba-Oju v. Dopamu (2008) 2 S.C.N.J. 114.

It is also a fundamental principle of law that a court will only grant a perpetual injunction at the suit of a plaintiff in support of a right known to law or equity, to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suit in respect of every repeated infringement. Refer to the Supreme Court case of Afrotec v. MIA & Sons (2000) 12 S.C.N.J. 344, per A. I. Iguh, J.S.C. This not the case here. The Claimant having failed to prove his case in accordance with the manifest intention of section 43 of the Trade Union Act, is not entitle to any of the perpetual injunction sought.

There is yet another issue and that is the argument by the Claimant that where there is a wrong, there must be a remedy. I must admit, this is the correct position of the law. But having predicated his case on section 43 of the Trade Union Act, it is too late in the day for the Claimant to rely on this lofty principle of law at the stage of address without more. A party cannot make out a case solely on the address of Counsel but on facts pleaded and evidence adduced on such facts. See the case of Oluruntobo-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 135-136.

On the whole, I hold that the Claimant has failed to prove its case and is hereby dismissed with no order to cost.

Judgment entered accordingly.

………………………………………

HON. JUSTICE M. A. NAMTARI

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