NATIONAL UNION OF CHEMICAL, FOOTWEAR, RUBBER, LEATHER AND NON METALLIC PRODUCTS

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: 3RD MAY, 2018 SUIT NO: NICN/YEN/120/2016

BETWEEN:

NATIONAL UNION OF CHEMICAL, FOOTWEAR,

RUBBER, LEATHER AND NON METALLIC PRODUCTS CLAIMANT

EMPLOYEES (NUCFRLANMPE)

AND

NIGERIA UNION OF PETROLEUM AND

NATURAL GAS WORKERS (NUPENG)

INDORAMA ELEME FERTILIZER AND DEFENDANTS

CHEMICALS LIMITED

INDORAMA PET AND PACKAGING LIMITED

REPRESENTATION:

D. O. Okoro with J. C. Mgbado and S. D. Baridoma for the Claimant

M. C. Osuji for the 1st Defendant

E. D. Onduku for the 2nd and 3rd Defendants

JUDGMENT

By an Originating Summons dated and filed on 27th June, 2016, the Claimant commenced this suit against the defendants and submitted the following questions for the determination of the court:

Whether considering the jurisdictional scope of each of the re-structured trade unions as clearly set out in PART B of the Third Schedule to the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004, the Claimant is entitled to organize and/or unionize the junior workers of the 2nd and 3rd Defendants to the exclusion of the 1st Defendant?

Whether the purport of section 40 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and section 12(4) of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004 is that a trade union can unionize workers in any trade group outside the trade group to which that particular union belongs or can the junior workers of the 2nd and 3rd Defendants join any trade union of their choice or fancy notwithstanding the particular trade union that is legally empowered to operate within a clearly defined jurisdictional scope?

The Claimant therefore claims the following reliefs against the Defendants:

A declaration that the Claimant is the proper trade union that is legally entitled to organize and/or unionize the junior workers of the 2nd and 3rd Defendants to the exclusion of the 1st Defendant.

A declaration that the 1st Defendant has no right or legal justification whatsoever to organize and/or unionize the junior workers of the 2nd and 3rd Defendants.

An order of the Honourable Court directing the 2nd and 3rd Defendants to continue to pay the check-off dues of their junior workers to the Claimant.

An order of the Honourable Court directing the 2nd and 3rd Defendants to continue to deal with and inter-phase(sic) with the Claimant in respect of any trade union issue on behalf of the junior workers of the 2nd and 3rd Defendants.

An order of injunction restraining the 1st Defendant whether by itself or through its agents, privies, members or proxies from further poaching or having anything whatsoever to do with the junior workers of the 2nd and 3rd Defendants.

An order of injunction restraining the 2nd and 3rd Defendants whether by themselves or through their agents, privies, employees or proxies from dealing with or inter-phasing(sic) with the 1st Defendant in respect of any trade union issue on behalf of the junior workers of the 2nd and 3rd Defendants.

In support of the Originating Summons is an affidavit of 18 paragraphs deposed to by one Isaac Eburue, the Claimant’s Assistant National Secretary, East Area Council II, Port Harcourt on the 27th of June, 2016. Annexed to the Affidavit are 11 documents marked as exhibits ‘A’ – ‘K’.

In compliance with the Rules of Court 2017, the Claimant filed along with the Originating Summons a Written Address dated and filed 27th June, 2016, wherein the following two (2) issues were distilled for the determination of this court:

Whether considering the jurisdictional scope of each of the restructured trade unions as clearly set out in PART B of the Third Schedule to the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004, the Claimant is entitled to organize and/or unionize the junior workers of the 2nd and 3rd Defendants to the exclusion of the 1st defendant?

Whether the purport of Section 40 of Constitution of the Federal Republic of Nigeria, 1999, as amended and section 12(4) of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004 is that a trade union can unionize workers in any trade group outside the trade group to which that particular union belongs or can the junior workers of the 2nd and 3rd Defendants join any trade union of their choice or fancy notwithstanding the particular trade union that is legally empowered to operate within a clearly defined jurisdictional scope?

Upon service of the Originating processes on the Defendants, the 1st Defendant filed a Memorandum of Appearance dated and filed on 13th July, 2016. In opposition to the Originating Summons, the 1st Defendant filed 16 paragraphs Counter-Affidavit deposed to by one Comrade Chinda Ejims, the Organising Secretary of the 1st Defendant at its Zonal Office in Port Harcourt on 13th July, 2016. The 1st Defendant also filed a Written Address dated and filed on 13th July, 2016 wherein the 1st Defendant adopted and argued the two (2) issues formulated by the Claimant for the determination of this court.

It is pertinent to note that, the Claimant filed a Further and Better Affidavit of 14 paragraphs on 14th of December, 2017 deposed to by one Soye Benibo, a litigation clerk in the Law Firm of Damian O. Okoro & Associates, the Claimant’s Solicitors in this suit. Annexed to the Further and Better Affidavit are documents marked as exhibits ‘L’, ‘L1’, ‘M’ and ‘N’.

The Claimant’s Further and Better Affidavit which has no accompanying Written Address was deemed properly filed and served on the 12th of March, 2018.

It is important to note that, apart from the Memorandum of Appearance filed by the 2nd and 3rd Defendants on 11th of July, 2016, the 2nd and 3rd Defendants did not file any process in opposition to the Claimant’s Originating Summons. In fact, at the hearing of this matter on the 12th of March, 2018, the 2nd and 3rd Defendants’ counsel E. D. Onduku informed the court that the 2nd and 3rd Defendants were not objecting to the Claimant’s Originating Summons.

THE CASE OF THE CLAIMANT:

The Claimant being a trade union duly registered under the Trade Unions Act Cap. T14 LFN, 2004 with its jurisdictional scope spelt out in Part B of the Third Schedule to the said Act is contending that the junior workers of the 2nd and 3rd Defendants fall under its jurisdictional scope. That while the 2nd Defendant being a limited liability company is engaged in the business of fertilizer production, the 3rd Defendant also a limited liability company is engaged in the manufacture of plastics used in the packaging of food and non-food products using the bye products of the 2nd Defendant.

The Claimant contends further that, it successfully unionized the junior workers of the 2nd and 3rd Defendants and wrote to the 2nd Defendant demanding for the deduction of check-off dues from the said workers in favour of the Claimant and both the 2nd and 3rd Defendants have been deducting and paying the deducted check-off dues to the Claimant effective September, 2015. And that while the Claimant was making arrangements for the conduct of election to elect its branch executive council members in the 2nd and 3rd Defendants, the 1st Defendant wrote to the 3rd Defendant requesting for deduction of union dues in its favour and the convening of a meeting with the management of the 3rd Defendant. That the 1st Defendant trade union also made efforts to hold its branch election for the workers of the 3rd Defendant despite its being aware that the said junior workers of the 2nd and 3rd Defendants have already been organized and unionized by the Claimant being the competent trade union to do so.

According to the Claimant, the case was referred to the Rivers State Controller of the Federal Ministry of Labour and Productivity in Port Harcourt for intervention and after hearing from the parties, the Rivers State Controller of the Federal Ministry of Labour and Productivity in Port Harcourt concluded that the Claimant is the rightful and competent trade union empowered to organize and unionise the workers of the 3rd Defendant.

1ST DEFENDANT’S CASE:

The case of the 1st Defendant on the other hand is that, the 1st Defendant being a registered trade union under the Trade Unions Act, Cap. T14, LFN, 2004 who also has its jurisdictional scope spelt out in Part B of the Third Schedule to the Trade Unions Act is the competent and rightful trade union to organize and unionise the junior workers of the 2nd and 3rd Defendants because both the 2nd and 3rd Defendants are engaged in the businesses of petroleum or oil and gas.

That the 1st Defendant trade union has been in existence in the then Eleme Petro-chemical Company Limited (EPCL) which was a subsidiary of the Nigeria National Petroleum Corporation (NNPC) which is now known as Indorama Petro-chemical Company Limited being the parent company of the 2nd and 3rd Defendants. That the said junior workers of the 2nd and 3rd Defendants were not to the knowledge of the 1st Defendant successfully unionized by the Claimant.

It was the further contention of the 1st Defendant that, it wrote a letter on the 10th of June, 2016 addressed to the 3rd Defendant requesting for the commencement of union dues deductions in favour of the 1st Defendant because it has completed the unionization of the workers of the 3rd Defendant. That the Claimant is not the rightful or proper trade union legally empowered to unionise the junior workers of both the 2nd and 3rd Defendants who are separate and distinct corporate entities in different areas of business, trade or industry.

May I state again that, apart from the Memorandum of Appearance filed by the 2nd and 3rd Defendants, they did not file any other process in opposition to the Claimant’s Originating Summons.

CLAIMANT’S SUBMISSIONS.

As earlier stated in this judgment, the Claimant formulated two (2) issues for the determination of this court.

On the first issue formulated for determination, to wit, whether considering the jurisdictional scope of each of the restructured trade unions as clearly set out in PART B of the Third Schedule to the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004, the Claimant is entitled to organize and/or unionize the junior workers of the 2nd and 3rd Defendants to the exclusion of the 1st defendant, it was submitted by the learned Claimant’s counsel that, the jurisdictional scopes of the Claimant and the 1st Defendant are as contained in Part B of the Third Schedule to the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004. That it was in a bid to streamline the trade unions to avoid chaotic situation that the trade unions were restructured thereby giving jurisdictional scopes to each trade union.

The learned Claimant’s counsel reproduced the jurisdictional scopes of both the Claimant and the 1st Defendant as contained in the Trade Unions Act and argued that, the junior workers of the 2nd and 3rd Defendants fall within the jurisdictional scope of the Claimant. That it is the type of business/work done and the industry that determines the jurisdictional scope of trade unions, and that in the instant case, it is the Claimant that is legally empowered to organize and/or unionise the workers of the 2nd and 3rd Defendants and not the 1st Defendant. The court was therefore urged to resolve this issue in favour of the Claimant.

On issue two (2) which is whether the purport of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and section 12(4) of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004 is that a trade union can unionize workers in any trade group outside the trade group to which that particular union belongs or can the junior workers of the 2nd and 3rd Defendants join any trade union of their choice or fancy notwithstanding the particular trade union that is legally empowered to operate within a clearly defined jurisdictional scope, it was submitted that, section 40 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and section 12(4) of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004, are not meant to allow workers the liberty to join any trade union of their choice or fancy regardless of the particular union that is empowered to operate within a clearly defined jurisdictional scope. Hence a trade union is prohibited from organizing and/or unionizing workers in any trade group outside the trade group to which that particular union belongs.

Learned Claimant’s counsel cited and relied on this court’s decisions in the cases of Nigeria Civil Service Union V. Association of Senior Civil Servants of Nigeria (2004) 1 N.L.L.R. (PT. 3) 429; Peressa V. SSACGOC (2009) 14 N.L.L.R. (PT. 39) 306; and National Union of Shop and Distributive Employees (NUSDE) V. The Steel and Engineering Workers Union of Nigeria (2013) 35 N.L.L.R. (PT. 106) 606 AT 649 – 650 paragraphs H – F, in arguing that, voluntarism and the right to belong to a trade union of a worker’s choice must only exist within and not outside all existing relevant laws and regulations. That since the fundamental rights as guaranteed in Chapter four of the 1999 Constitution, as amended, are not absolute by virtue of the derogation of those rights in section 45(1)(a) and (b) of the Constitution, then the right to choose which trade union to belong to is therefore a qualified right. See also the cases of R.T.N.A.C.H.P.N. V. M & H.W.U.N. (2008) 2 NWLR (PT. 1072) 575 AT 603 paragraphs C – D, 640 paragraph G, and Osawe V. Registrar of Trade Unions (1985) 1 NWLR (PT. 4) 755.

The Claimant’s counsel therefore urged the court to hold that the 1st Defendant has no right to poach on the members of the Claimant or attempt to organize and/or unionize the junior workers of the 2nd and 3rd Defendants and grant the reliefs set out in the Originating Summons.

1ST DEFENDANT’S SUBMISSIONS

The 1st Defendant did not formulate any issue for determination but rather adopted the two (2) issues formulated for determination by the Claimant.

On the Claimant’s issue one (1), learned counsel for the 1st Defendant submitted that even from the Claimant’s case before the court, there are pointers to the fact that the junior workers of the 3rd Defendant are basically within the jurisdictional scope of the 1st Defendant. These pointers according to the 1st Defendant’s counsel are as follows:

That Exhibit A was solely made by the Claimant and the 2nd Defendant and has nothing to do with the 3rd Defendant.

That Exhibits B – D were letters purportedly written by the Claimant specifically to the 2nd Defendant and has nothing to do with the 3rd Defendant.

That Exhibit E was a letter written by the 1st Defendant addressed to the Managing Director of the 3rd Defendant and not to the 2nd Defendant.

That Exhibit F was an instigating letter written by the 2nd Defendant to the Claimant reacting to a letter (Exhibit E) that was never addressed to it.

That Exhibits E and H of the 1st Defendant are addressed to two different managements, addressing two different issues and at two different points in time.

According to the 1st Defendant’s counsel, the Claimant and the management of the 2nd and 3rd Defendants cannot claim to be ignorant of the fact of the 3rd Defendant being in the business of products of petroleum and its packaging which is one of the cognizable exceptions provided for under Item No. 8 of Part B of the Third Schedule to the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004, thereby falling within the jurisdictional scope of the 1st Defendant by virtue of Item No. 13 of Part B of the Third Schedule to the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004. That workers who are engaged in products of petroleum and coal are exempted from being members of the Claimant Union.

The court is therefore urged to resolve issue one (1) formulated by the Claimant in favour of the 1st Defendant and hold that, the junior workers of the 3rd Defendant in particular fall within the jurisdictional scope of the 1st Defendant.

On the Claimant’s issue two (2), it was submitted by the 1st Defendant’s counsel that, the right created under section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) relating to freedom of association is a qualified right that has to be exercised in consonance with the provisions of other extant laws such as the Trade Unions Act. That even if the 1st Defendant is not sure of the junior workers of the 2nd Defendant, the 1st Defendant and the junior workers of the 3rd Defendant have not violated any law in the unionization of the junior workers of the 3rd Defendant because it is obvious that the 3rd Defendant who is in the business of products of petroleum manufacturing and packaging, the junior workers are exempted from being members of the Claimant Union by law in view of Item No. 8 of Part B of the Third Schedule to the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004.

The 1st Defendant therefore urged the court to dismiss the Claimant’s suit for lacking in merit and good faith.

It is crucial to state that the Claimant in further response to the 1st Defendant’s Counter-Affidavit filed a Further and Better Affidavit deposed to by one Soye Benibo on the 14th day of December, 2017 but deemed on 12th March, 2018. The said Further and Better Affidavit was not accompanied with a Written Address.

Like I stated earlier in this judgment, the 2nd and 3rd Defendants only filed a Memorandum of Appearance on 11th of July, 2016 and no more. No process was filed in opposition to the Claimant’s suit and when the matter was heard on 12th March, 2018, the learned counsel for the 2nd and the 3rd Defendants informed the court that they had no objection to the Claimant’s suit.

COURT’S DECISION

I have carefully considered the processes, arguments and submissions as well as adumbrations of counsel for the parties and I am of the view that this suit can be determined based on the two (2) issues formulated by the Claimant’s counsel. The 1st Defendant’s counsel did not formulate any issue for the determination of the court but rather adopted the issues formulated by the Claimant which issues are adopted by the court as follows:

On issue one (1), while the Claimant has argued that both the 2nd and 3rd Defendants fall within its jurisdictional scope by virtue of item 8 Part B of the Third Schedule of the Trade Unions Act, Cap. T14 LFN 2004, the 1st Defendant on the other hand had submitted strenuously that, the 2nd and 3rd Defendants particularly the 3rd Defendant by virtue of Item 13 of Part B of the Third Schedule to the Trade Unions Act fall(s) within the jurisdictional scope of the 1st Defendant because they are engaged in the business of products of petroleum manufacturing and packaging.

It will seem that while parties are in agreement on the status of the Claimant and the 1st Defendant being trade unions duly registered under the Trade Unions Act, the only area of divergence is where the employees of the 2nd and 3rd Defendants should be unionized, i. e. whether such employees fall under the jurisdictional scope of the Claimant or the 1st Defendant.

In determining the issues in controversy, it is pertinent to reproduce the various provisions of the law delineating the jurisdictional scopes of both the Claimant and the 1st Defendant as this will no doubt assist the court in appreciating their areas of coverage.

Item 8, Part B of the Third Schedule to the Trade Unions Act, Cap. T14 LFN, 2004 which provides for the jurisdictional scope of the Claimant states thus:

“8, National Union of Chemical, Footwear, Workers in manufacture of basic industrial organic and

Rubber, Leather and Non-Metallic Prod- inorganic chemicals, except products of petroleum

ucts Employees and coal but including fertilizers, explosives and

fireworks, synthetic fibre and rubber, resins, plastics,

elastomers and vegetable and animal oils and fats,

including the production of cake and meal by crushing

or extractions from oil seeds and nuts. Manufacture

of medicinal and pharmaceutical preparations,

perfumes, cosmetics and other toilet preparations.

Soaps and other washing and cleaning compounds

including detergents. Polishes, inks, matches, candles

and insecticides. Manufacture of clay products such

as bricks, tiles, pipes, crucibles, architectural terra-

cotta, stove lining, chimney pipes, and tops and

refectories. Manufacture of glass and glass products

except the grinding of optical lenses. Pottery, china

and earthenware. Manufacture of all types of

hydraulic cement such as portland. Manufacture of

concrete, gypsum and plaster products. Stone

products and other similar chemical and non-metallic

products. Manufacture of all kinds of footwear,

leggings and gaiters from leather, fabrics, plastic,

wood and other materials. Tanning, currying,

finishing, embossing and japanning of all kinds of

hides and skins and the manufacture of leather

products such as luggage handbags, pocket-books,

saddlery, harness whip and other articles made of

leather and leather products. Manufacture from

natural or synthetic rubber of all kinds of rubber

products such as tubes and tyres, vulcanized

footwear, industrial and mechanical rubber goods

and rubber sundries such as mats, gloves, sponges

and other vulcanized articles. The reclaiming of

rubber from used tyres, scrap and miscellaneous

waste rubber. Rebuilding, retreading and vulcanizing

of tyres. Dipping, mixing, rolling, cutting and related

processing of natural rubber, except on rubber plantations.

Components:

National Union of Chemicals and Non-Metallic Products

Workers

Footwear, Leather and Rubber Products Workers Unions of Nigeria.”

“13. National Union of Petroleum and Workers in oil well and natural gas well operations including

Natural Gas Workers prospecting, drilling, crude oil and natural gas pipelines.

Refining , distribution and marketing of natural gas,

extraction oil and natural gas and petroleum products

including petrol filling stations, petroleum tanker drivers,

but excluding the construction of oil and gas pipelines.”

It is pertinent to state that it was because of the need to curb the abuses and proliferation of trade unions that they were restructured beginning with the Legal Notice No. 92 and subsequently the Trade Unions Official Gazette of the Federal Republic of Nigeria No. 6 of 8th February, 1978. The restructuring exercise led to the promulgation of Decrees 4 and 6 of 1996 wherein trade unions were restructured into named unions spelt out with their respective jurisdictional scopes provided in the Third Schedule Parts A, B, and C of the Trade Unions Act, as amended. And even though the Trade Unions Act was further amended vide the 2005 Trade Unions (Amendment) Act, the 2005 amendment neither repealed, amended nor substituted any of the provisions of the Third Schedule Parts A, B, and C of the Trade Unions Act, Cap. T14 LFN, 2004.

Looking at the nature and circumstances of this case, it is crucial to note that the 2nd and 3rd Defendants are separate and independent companies/corporate entities even though both companies operate in the same premises and as groups of companies operating under the Indorama Corporation. I am therefore of the considered view that the best approach is to treat or consider the cases of the 2nd and 3rd Defendants separately in the course of this judgment.

The Claimant’s counsel has submitted on this issue that the yardstick for determining the jurisdictional scopes of trade unions is the business/work done and the industry. I agree with the learned Claimant’s counsel on this as it is the law that the jurisdictional scopes of trade unions are industry based.

See Food, Beverage and Tobacco Senior Staff Association V. Royal Salt Limited, Kirikiri Lighter Terminal, Apapa, Lagos (2009) 16 N. L. L. R. (Part 43) 92 at 101 – 102 paragraphs H – C where it was held that, “In large measure, unionization in Nigeria is industry based. Salt could be industrial salt or table salt. As a matter of fact, the respondent produces both. Industrial salt is in no way edible. Table salt is edible only when added to food, but certainly not on its own. It should be noted that even as food graded salt, table salt still retains its chemical character as sodium chloride. This presupposes that on balance, salt must be treated as a chemical product despite the contrary categorization by the regulatory agencies mentioned above.

For purposes of unionization, therefore, reliance on the view of the regulatory agencies that salt is food is inappropriate. Salt is not food and so workers in the salt industry cannot be unionized by the appellant. As a chemical product, it is only the National Union of Chemical, Footwear, Rubber, Leather and Non-Metallic Workers Union that can unionize workers in any company that mainly produces salt.”

Now with regard to the 2nd Defendant, there is no doubt that the 2nd Defendant is engaged in the production of fertilizer.

That being the case, it will seem that the junior staff of the 2nd Defendant come within the jurisdictional scope of the Claimant in line with the provisions of Part B of the Third Schedule to the Trade Unions Act. The appropriate trade union to unionize the said junior staff of the 2nd Defendant is therefore the Claimant, and I hold that they are rightly and lawfully unionized under the Claimant.

The case of the 3rd Defendant however is not that straight forward.

While I totally agree with the 1st Defendant that the company known as Indorama Petro-chemical Company Limited acquired the erstwhile Eleme Petro-chemicals Company Limited which was a subsidiary of the Nigeria National Petroleum Corporation (NNPC), it is important to note that the 3rd Defendant before the court is a company known as Indorama PET & Packaging Limited. This company is clearly different from the company known as Indorama Petro-chemical Company Limited which had for years existed in this country as Eleme Petrochemicals Company Limited, a 100% Federal Government Owned Company and a subsidiary of the Nigerian National Petroleum Corporation (NNPC), and which was acquired during the privatization exercise of the Federal Government by the Indorama Group as the core investor sometimes in August, 2006. It therefore seems to me that the 1st Defendant has fallen into the error of mistaking the 3rd Defendant company before the court (Indorama PET & Packaging Limited) with the company known as Indorama Petro-chemical Company Limited hitherto known as Eleme Petrochemicals Company Limited. No wonder the 1st Defendant deposed in paragraph 8 of its Counter-Affidavit that, it has existed in Eleme Petro-chemical Company Limited (EPCL) (a subsidiary of Nigeria National Petroleum Corporation (NNPC) which is now known as Indorama Petro-chemical Company Limited and parent company of the 2nd and 3rd Defendants.

Going by the processes filed in this suit, particularly the Originating Summons and the reliefs being sought from the court, it is important to state that the company known as Indorama Petro-chemical Company Limited is unknown to the court and the court shall decide this suit based on the parties and reliefs before the court.

While the 1st Defendant claimed in paragraph 8 of its Counter – Affidavit that the 1st Defendant has been in existence in Eleme Petro-chemical Company Limited (a subsidiary of NNPC) which is now known as Indorama Petro-chemical Company Limited which is the parent company of the 2nd and 3rd Defendants, the 1st Defendant’s letters of 10th June, 2016 (EXH. E) and 21st June, 2016 (EXH. H) both annexed to the Originating Summons were not addressed to the said Indorama Petro-chemical Company Limited but the 2nd and 3rd Defendants. If the company whose workers the 1st Defendant sought to unionise were workers of Indorama Petro-chemical Company Limited, the letters would have specifically said so. But in the letter of 10th June, 2016 (EXH. E), the 1st Defendant sought for the unionization of the workers of a company known as Aurus Packaging Ltd which is neither a party to this suit nor the 1st Defendant establish before the court any relationship whatsoever between the said Aurus Packaging Ltd and Indorama Petro-chemical Company Limited or even the 2nd and 3rd Defendants.

In the letter of 21st June, 2016 (EXH. H) on the other hand, the 1st Defendant sought for the holding of its branch election in the 2nd Defendant and not the Indorama Petro-chemical Company Limited which it claims to have been existing in when it was a subsidiary of NNPC.

I am therefore not convinced by the 1st Defendant’s claims that the 3rd Defendant is engaged in the business of petroleum and natural gas. The 1st Defendant has not placed any material fact before the court to establish this assertion.

It is pertinent to state that the abbreviation PET in the name of the 3rd Defendant according to the Oxford Advanced Learner’s Dictionary, International Student’s Edition stands for ‘polyethylene terephthalate’ which is an artificial substance used to make materials for packaging food, including plastic drinks bottles.

Also, the businessdictionary.com defines PET (polyethylene teraphthalate) as ‘high gloss, crack-resistant transparent plastic used largely in making carbonated beverage bottles.’

Looking at the jurisdictional scopes of both the Claimant and the 1st Defendant as captured in Part B, Third Schedule to the Trade Unions Act, I am of the considered view that the 3rd Defendant comes within the jurisdictional scope of the Claimant. This is because the clear exceptions to the jurisdictional scope of the Claimant relate to manufacture of products of petroleum and coal of which the 3rd Defendant is clearly not engaged in the manufacture of such.

I therefore agree with the Claimant as deposed to in paragraph 4 of the Further and Better Affidavit in support of the Originating Summons that the 3rd Defendant is not in the business of the Petroleum industry and packaging of petroleum products. More so, that exhibit ‘M’ attached to the Claimant’s Further and Better Affidavit clearly shows that the raw materials used by the 3rd Defendant are sourced from outside Nigeria particularly China.

The jurisdictional scope of the 1st Defendant clearly relate to oil well and natural gas well operations including prospecting, drilling, crude oil and natural gas pipelines, refining, distribution and marketing of natural gas, extraction oil and natural gas and petroleum products including petrol filling stations, petroleum tanker drivers of which the 3rd Defendant is not engaged in any of such. I so find and hold.

Issue one (1) is therefore resolved in favour of the Claimant.

On Issue two (2), which is whether the purport of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 12(4) of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria, 2004 is that a trade union can unionize workers in any trade group outside the trade group to which that particular union belongs or can the junior workers of the 2nd and 3rd Defendants join any trade union of their choice or fancy notwithstanding the particular trade union that is legally empowered to operate within a clearly defined jurisdictional scope, it appears that both the Claimant and the 1st Defendant are ad idem that the right to freedom of association created under section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is not absolute but a qualified right which can be exercised subject to other provisions of the Constitution such as section 45 and extant laws like the Trade Unions Act.

It is worthy of note that, while section 40 of the 1999 Constitution (as amended) guarantees freedom of association and the freedom to form and belong to any political party or trade union or any association for the protection of one’s interests, section 12(4) of the Trade Unions Act provides that membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member.

In the case of National Union of Shop and Distributive Employees (NUSDE) V. The Steel and Engineering Workers Union of Nigeria (2013) 35 N. L. L. R. (Part 106) 606 at 650 – 651 paragraphs H – D, this court held as follows on voluntarism in the labour sector:

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

See also Precision, Electrical and Related Equipment Senior Staff Association (PERESSA) V. Senior Staff Association of Statutory Corporations and Government Owned Companies (SSACGOC) and 2 Others (2009) 14 NLLR (Part 39) 306 at 342.

I therefore find and hold on this issue that, since the right to freedom of association guaranteed in the 1999 Constitution (as amended) is not absolute, the junior workers of the 2nd and 3rd Defendants can only choose to join a trade union of their choices within a defined jurisdictional scope and cannot go outside the delineated jurisdictional scope. This issue therefore is resolved in favour of the Claimant.

In the final analysis, I am of the view that based on the reasons advanced above and the authorities cited and relied upon, the instant suit instituted by the claimant herein is meritorious and same succeeds. All the reliefs claimed by the Claimant are hereby granted. Accordingly, it is hereby declared and ordered as follows:

That the Claimant is the proper trade union that is legally entitled to organize and/or unionise the junior workers of the 2nd and 3rd Defendants to the exclusion of the 1st Defendant.

That the 1st Defendant has no right or legal justification whatsoever to organize and/or unionise the junior workers of the 2nd and 3rd Defendants.

The 2nd and 3rd Defendants are by this judgment ordered to continue to pay check-off dues of their junior workers to the Claimant.

That the 2nd and 3rd Defendants are by this judgment ordered to continue to deal and relate with the Claimant in respect of any trade union issue on behalf of the junior workers of the 2nd and 3rd Defendants.

The 1st Defendant whether by itself or through its agents, privies, members or proxies is by this judgment restrained from further poaching or having anything whatsoever to do with the junior workers of the 2nd and 3rd Defendants.

The 2nd and 3rd Defendants whether by themselves or through their agents, privies, employees or proxies are hereby restrained from dealing with or inter-facing with the 1st Defendant in respect of any trade union issue on behalf of the junior workers of the 2nd and 3rd Defendants.

Judgment is entered accordingly.

I make no order as to costs.

Hon. Justice P. I. Hamman

Judge