LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Senior Staff Association of Statutory Corporations v NATIONAL IDENTITY MANAGEMENT COMMISSION & ors

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED: 15TH MARCH, 2019                                             SUIT NO: NICN/ABJ/46/2018

 

BETWEEN:

SENIOR STAFF ASSOCIATION OF STATUTORY

 CORPORATIONS AND GOVERNMENT OWNED                CLAIMANT

 COMPANIES (SSASGOC)

 

AND

  1. NATIONAL IDENTITY MANAGEMENT COMMISSION
  2. MINISTER FOR LABOUR AND PRODUCTIVITY
  3. ASSOCIATION OF SENIOR CIVIL SERVANTS                     DEFENDANTS

 

REPRESENTATION

TOPE AJAYI for the Claimant

AJAYI OLOWO for the 1st Defendant

JOHNSON ESEZOBO for the 3rd Defendant

No appearance from the 2nd Defendant

JUDGMENT

  1.             The Claimant, by Originating Summons filed on 16th February, 2018 approached the Court for the determination of the following questions (and claim to be entitled to the reliefs sought in the summons) namely:
  2. Whether having regard to the provision of Sections 2 Rule 1(1) Code of Practice   of the Senior Staff Association of the Statutory Corporations and Government       Owned Companies (2016), sections 2 (1), third schedule part C No 16 of the           Trade Union Act CAP T14 2004, Federal Republic of Nigeria Official Gazette    No 6, Vol.65 8th February 1978,The Senior Staff Association of Statutory       Corporation and Government Owned Companies (SSASCOC) is the Lawful         Trade Union to organize the Senior Staff of the National Identity Management             Commission.

  1. Whether the letter dated 24th November 2016 from the 2nd Defendant is valid     under the law.

RELIEFS SOUGHT

  1.             A declaration that the Senior Staff Association of Statutory Corporation and Government Owned Companies (SSASCOC) is the Lawful Labour Union to organize the Senior Staff of the 1st Defendant and all Statutory Corporations and Government Owned Companies.
  2.             A Declaration that all action taken so far by the 1st defendant against the Claimant pursuant to the letter dated 24th November 2016 November is null and void.

                            iii.            An order directing the 1st Defendant to restore in full, the right and privileges accruable to the Claimant by virtue of section 17 of the Labour Union Act Cap T14 LFN 2004.

  1.             An order directing the 1st defendant to pay all outstanding check off dues to the Claimant.

WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS.

 

  1.             ISSUES
  2. Whether having regard to the provision of Sections 2 Rule 1(1) Code of Practice   of the Senior Staff Association of the Statutory Corporations and Government       Owned Companies (2016), sections 2 (1), third schedule part C No 16 of the           Trade Union Act CAP T14 2004, Federal Republic of Nigeria Official Gazette    No 6, Vol.65 8th February 1978,The Senior Staff Association of Statutory       Corporation and Government Owned Companies (SSASCOC) is the Lawful         Trade Union to organise the Senior Staff of the National Identity Management             Commission.

  1. Whether the letter dated 24th November 2016 from the 2 Defendant is valid         under the law.

 

ON ISSUE 1

  1.             Whether having regard to the provision of Sections 2 Rule 1(1) Code of Practice of the Senior Staff Association of the Statutory Corporations and Government Owned Companies (2016), sections 2 (1), third schedule part C No 16 of the Trade Union Act CAP T14 2004, Federal Republic of Nigeria Official Gazette No 6, Vol.65 8th February 1978,The Senior Staff Association of Statutory Corporation and Government Owned Companies (SSASCOC) is the Lawful Trade Union to organise the Senior Staff of the National Identity Management Commission.

 

  1.             Learned Counsel for the Claimant submitted that in the case of Management of TUYIL NIGERIA LTD VS. NATIONAL UNION OF CHEMICAL, FOOTWEAR, RUBBER, LEATHER AND NON METTALLIC PRODUCTS EMPLOYER (unreported) Suit No: NIC/9/2003 delivered on January 23d 2008, this Court held that upon registration of a Labour Union, recognition becomes compulsory and automatic, and that this decision follows the case of OSAWE vs. REGISTRATION OF TRADE UNION (1985) 1 NWLR (PT 4) 755 (2004) NLLR PT 32.He submitted that it is trite law from the SUSSEX PEERAGE CASE of 1844 and as held in the Supreme Court in CALABAR CO-OPERATIVE LTD & 2 ORS. EKPO (2008) 1-2 SC 229 at paras 5-10, Per Onnoghen J.S.C in the leading Judgment, that: “It is settled law that where the word of a statue or constitution are clear and unambiguous, they call for no interpretation, the duty of the court in such circumstance being to apply the words as used by the legislature.”

 

ON ISSUE 2

Whether the letter dated 24th November 2016 from the 2 Defendant is valid under the law.

 

  1.             Learned Claimant Counsel submitted that flowing from Section 17 of the Trade Union (Amendment) Act CAP T14 2004, the 1st Defendant is under a duty to remit the deductions made from its employee to the claimant as the rightful Labour Union. Amaechi v. National Independent Electoral Commission & Ors (2007) LPELR-SC 252/2007, P.37 Para B-G; Dalhatu Turaki (2003) 7 SC; Amokeodo v. IGP & ORS (1999) LPELR SC168/96. He contended that the power exercised by the defendant through its letter of 24th November, 2016 is judicial in nature and this runs contrary to the constitutional power provided exclusively, to this Honourable Court in Sec. 254(C) 1999 Constitution (Amended). MBUBA JCA in PAM & 4 ORS vs1 AHMADU BELLO UNIVERSITY & 2 ORS 2013, 2 ACELR; OLUFUSHO v GSDI LTD (2013) 8 WRN 36 at 54. It is also Claimant’s counsel’s submission that the decision of a court of competent jurisdiction is valid and remains law, until such a decision is set aside by an appellate court. CBN & ANOR. V.OLAYATO ARUBO (SC/2011) (2017) NGSC/ (j2th May 2017), LER (2017) SC.9/2011; KRAUS THOMPSON ORG. LTD vs. UNICAL (2004) 9 NWLR (pt. 819) 631 at 642, OKONKWO vs. INEC (2004) /NWLR (pt. 554) 242 at 256 ANYAWU vs. OGUNEWE & ORG (2014) LPELR-22184 (SC) at 47 C-F. He argued further that this Court recognized and affirmed the jurisdiction of the claimant to cover all Statutory Corporation and Government Owned Companies, which include the 1st Defendant. MAINSTREET BANK REGISTRARS LTD v. AWE OLUGBENGA AS REPORTED BY OPTHNUM PUBLISHERS LIMITED. Per, Yargata Byenchit Nimpar, JCA and submitted that the Supreme Court decision in NGSC UWA UDO vs. THE STATE (SC 511/2014) held that a court of law does not recognise speculations but facts.

  1.             1st Defendant filed a PRELIMINARY OBJECTION on 5th April, 2018 supported by a 5 paragraph affidavit deposed to by Eriose Grace Faith, that the Honourable Court lacks the Jurisdiction to entertain the suit as currently filed and placed before the Court.

GROUNDS OF OBJECTION

  1. There is no stamp of a Legal Practitioner, enrolled at the Supreme Court of Nigeria, affixed to the Claimant’s processes before the Honourable Court.
  2. The suit filed by the Claimant does not contain any reasonable cause of action against the 1st Defendant.

WRITTEN ADDRESS IN SUPPORT OF 1ST DEFENDANT’S PRELIMINARY OBJECTION

  1.             ISSUES
  2. Whether the condition(s) precedent to the invocation of the jurisdiction of the Honourable Court has been duly met by the Claimant?
  3. Whether, in view of the questions proffered in the Claimant’s Originating Summons before the Honourable Court, the 1st Defendant should have been made a party to the Suit?

 

ON ISSUE 1

Whether the condition(s) precedent to the invocation of the jurisdiction of the Honourable Court has been duly met by the Claimant?

 

  1.             Counsel invited the Court to note that there is no stamp of a Legal Practitioner, called to the Nigerian Bar and on the enrolment list of the Supreme Court of Nigeria, affixed to the processes of the Claimant before this Honourable Court.

  1.             He submitted that the settled position of the law is that any processes not bearing the stamp of a Legal Practitioner is incompetent and cannot be a basis for the invocation of the jurisdiction of the Court. YAKI v. BAGUDU (2015) 10-11 S.C. (Pt. 1)43, particularly at Pp. 67-70 (Paras 15-20), per Ngwuta JSC.

 

ON ISSUE 2

  1.             Whether, in view of the questions proffered in the Claimant’s Originating Summons before the Honourable Court, the 1st Defendant should have been made a party to the Suit?

 

  1.             Learned Counsel submitted that the 1st Defendant cannot be deemed to be a necessary, proper and or desirable party for the purpose of determining the questions of Law proffered in the Originating Summons of the Claimant. GREEN v. GREEN (1987) 7 S.C (Pt. II) (Reprint) 108.

 

  1.             He submitted that on a close perusal of the Originating Summons of the Claimant and the Affidavit in support thereof, the Claimant does not have a cause of action, nay a reasonable cause of action against the 1st Defendant to warrant the 1st Defendant being made a party to the suit. ARABAMBI v. AB.I LTD [2006] 3 M.J.S.C 61 at page 78 Paras D –F, per Mukhtar, JSC.

 

 

  1.             1st Defendant filed a 5 paragraph COUNTER-AFFIDAVIT IN OPPOSITION TO THE CLAIMANT’S ORIGINATING SUMMONS on 5th April, 2018 and deposed to by Eriose Grace Faith.

WRITTEN ADDRESS OF THE 1ST DEFENDANT IN SUPPORT OF THE COUNTER- AFFIDAVIT IN OPPOSITION TO THE CLAIMANT’S ORIGINATING SUMMONS

  1.             ISSUES
  2. Whether paragraphs 12, 13 and 14 of the Affidavit in support of the Originating    Summons of the Claimant are not contrary to the provisions of Section 115 (2)    of the Evidence Act, 2011; thus liable to be struck out?

  1. Whether the Originating Summons of the Claimant is not grossly    unmeritorious as regards the 1st Defendant?

ON ISSUE 1

Whether paragraphs 12, 13 and 14 of the Affidavit in support of the Originating Summons of the Claimant are not contrary to the provisions of Section 115 (2) of the Evidence Act, 2011; thus liable to be struck out?

 

  1.             Learned Counsel submitted that paragraphs 12, 13 and 14 of the affidavit in support of the Originating Summons of the Claimant contravene the provisions of SEC. 115 (2) of the Evidence Act 2011 and are thus Liable to be struck out. BAMAIYI v. THE STATE (2001) 4 S.C. (Pt.1) 18.

 

ON ISSUE 2

Whether the Originating Summons of the Claimant is not grossly unmeritorious as regards the 1st Defendant?

 

  1.             It is counsel’s submission that the Originating Summons of the Claimant, particularly as regards the 1st Defendant, is grossly unmeritorious as the process neither shows nor portends any dispute and or any reasonable course of action warranting the 1st Defendant being made a party to the suit. GREEN v. GREEN (1987) 7 S.C (Pt. II) (Reprint) 108; ARABAMBI v. AB.I LTD [2006] 3 M.J.S.C 61 at page 78 Paras D –F.

 

  1.             Claimant filed an 8 paragraph COUNTER AFFIDAVIT IN OPPOSITION TO THE 1ST DEFENDANT’S PRELIMINARY OBJECTION on 30th April, 2018 and deposed to by Olorunfemi Ayodele.

WRITTEN ADDRESS IN OPPOSITION TO THE 1ST DEFENDANT’S PRELIMINARY OBJECTION

 

ISSUE

Whether the claimant’s originating summons is valid before the law.

 

  1.             The 1st Defendant Counsel maintained that one of the main grounds upon which the defendant is objecting to the validity of the claimant Originating summons is that a Legal Practitioner’s stamp was not affixed to the Originating summons. Today’s Car’ Ltd V. Lasaco, Ass. Plc. & Anor 2016 LPE/R 41260 (A). It is counsel’s submission that by affixing the bank teller on the originating process, the claimant’s counsel has complied with condition expected of a legal Practitioner, and the 1st Defendant objection on this ground holds no water.

  1.             On the second leg of the 1st Defendant’s preliminary objection that this suit does not disclose any reasonable cause of action against the 1st Defendant.

 

  1.             Counsel to the 1st Defendant submitted that the 1st Defendant is a necessary party to this suit hence its presence is very important to the just & equitable determination of this suit. Oyedeji Akambi, & Ors V Okunola Ishola Fabunmi.

 

  1.             It is Counsel’s submission that the 1st Defendant being the Claimant’s alter ego is a necessary party as the suit is presently constituted. NNN Ltd Vs. Ademola (1997) 6 NWLR (Pt. 507) 76; Okonta Vs. Philips (2011) All FWLR (pt. 568) 77; Bello V INEC (2010) All FWL (Pt. 526) 397.

 

  1.             3rd Defendant filed a 42 paragraph COUNTER AFFIDAVIT TO CLAIMANT’S ORIGINATING SUMMONS OF 16/2/2018 (on 31st May, 2018) and deposed to by Oluyomi Peters.

3RD DEFENDANT’S COUNTER CLAIM dated 25th May, 2018.

 

  1. A DECLARATION that the action of the claimant/defendant to the counter        claim in instituting the action in this suit to perpetuate its purported             unionization of senior staff and fraudulent collection of check-off dues from            the l’ defendant is wrongful, unconstitutional, illegal, null and void.

  1. A DECLARATION that by virtue of the Federal Government Official Gazette No. 6, Vol. 65 of 8th February 1978 and the PART C of the Trade      Unions Act Cap T14 LFN 2004, the 3rd defendant/counter claimant is the             union entitled to unionize the senior staff of the 1st defendant and collect             check-off dues therefrom, as such the Defendant/counter claimant is entitled to     a refund of   the of N33,8424480 from the claimant/defendant to counter            claim, which it fraudulently collected from the 1st defendant as check-off dues            from the year 2014 to 2016

  1. AN ORDER directing the claimant/defendant to Counter claim to render an         account to the 3rd defendant/Counter claimant for all check-off dues collected      from the 1st defendant on account of the senior staff which the said            claimant/defendant failed to remit to the 3rd defendant/counter claimant     particularly for the period May to August 2015.

  1. AN ORDER of perpetual injunction restraining the claimant/defendant to         counter claim, its agents, servants, privies however called from unionising or         further unionising senior staff of the 1st defendant who are members of the          3rd defendant/counter claimant.

  1.             3RD DEFENDANT’S WRITTEN ADDRESS IN OPPOSITION TO CLAIMANT’S ORIGINATING SUMMONS OF 16/2/20 18 AND IN SUPPORT OF THE COUNTER CLAIM (dated 25th May, 2018).

ISSUES

  1. Whether Originating Summons is an appropriate form for commencing this suit.

  1. Whether the Claimant’s suit as constituted in the originating summons discloses any reasonable cause of action such as invests the Court with jurisdiction to grant the reliefs claimed.

iii.                Whether the Claimant’s suit is not otherwise frivolous, scandalous, embarrassing and an abuse of the process as well as an abuse of the process of court.

  1. Whether the suit as constituted is not a fraud against the 3rd Defendant such as renders Claimant liable to refund to the 3rd Defendant the check—off dues of the sum of N33,843,24380 due to the 3rd Defendant but which it fraudulently collected from the Defendant in respect of senior employees from 2013 to November 2016.

  1. Whether the 3rd Defendant has discharged the burden of proof placed on her by law to establish the counter claim to entitle her to judgment for the check-off dues of N33, 843,243.80 due to the 3rd Defendant but which the Claimant fraudulently collected from the 1st Defendant from 2013 to November 2016.

  1. Whether the 3rd Defendant has not made out a case for a grant of injunction against the Claimant restraining her from further interfering with the 3rd Defendant’s interest in the 1st Defendant by way of unionizing the senior staff and collecting check-off dues from them

vii.              Whether this is not an appropriate case for the Court to order a referral of the conduct of the Claimant and its General Secretary, Ayo Oluwafemi whose real names are Ayodele Festus Olorunfemi otherwise Ayo Olorunfemi to Police for investigation and possible prosecution.

 

ON ISSUE 1

Whether Originating Summons is an appropriate form for commencing this suit.

  1.             The 3rd Defendant Counsel submitted that the commencement of the suit by the Originating Summons procedure is appropriate. University of Calabar v Inyang [2016] 67NLLR (Pt.241) 483.

 

ON ISSUE 2

Whether the Claimant’s suit as constituted in the originating summons discloses any reasonable cause of action such as invests the Court with jurisdiction to grant the reliefs claimed.

 

  1.             It is 3rd Defendant counsel’s submission that in addition to the general law as to cause of action, which is resolved on facts, in trade union matters, touching on jurisdictional scope, a cause of action is determinant upon a combination of facts and the governing law. That under such circumstance, the facts alone cannot found a cause of action because every of the matters is governed or regulated by the Trade Unions Act Cap T14. NUPENG V MARITIME WORKERS UNION OF NIGERIA (NWUN) [2015] 61 NLLR (PT. 214) 404 at 461. Furthermore, that to disclose a cause of action, the Claimant in this case must show that it is a registered trade union with a statutory mandate under the Trade Unions Act Cap T14 to have the recognition of the 1st Defendant to organize the senior employees and collect check-off dues therefrom as against the 3rd Defendant. BELLO V ATTORNEY GENERAL OF OYO STATE (1986)12 SC 1, FRED EGBE V ADEFARASIN (1987) LPELR 1032; AGWU & ORS V AKANU IBIAM FEDERAL POLY & ANOR (2015) 61 N.L.L.R (PT. 214) 354 at 399.

 

  1.             Counsel to the 3rd Defendant submitted that the facts disclosing the Claimant’s entitlement to the 1st Defendant’s recognition as well as the organization of the senior staff and collection of check-off dues must be evident in the supporting affidavit to the Originating Summons which constitutes the pleadings in an action commenced by an Originating Summons as held in Fawehinmi v The President of Nigeria & 4 Ors (2007)14 NWLR (Pt. 1054)275. He argued that the first statutory provision on which it rests its claim is S.2 Rule 1(1) code of practice of the Senior Staff Association of Statutory Corporation and Government Owned Companies 2016, which as its Constitution and Code of Practice cannot be the basis of a claim against the defendants as Claimant cannot by its private Code of practice confer on itself powers to unionize workers of a category of any employer. Only by an Act of the National Assembly can that be done. Counsel further argued that the third instrument on which the claim is based is S.2 (1) Third Schedule Part C of the Trade Unions Act Cap T14 2004, which by its tenor and content does not avail the Claimant particularly as the reliefs are also crucial in determining whether a cause of action is disclosed.

ON ISSUE 3

Whether the Claimant’s suit is not otherwise frivolous, scandalous, embarrassing and an abuse of the process as well as an abuse of the process of court.

 

  1.             3rd defendant’s Counsel contended that logically, had there been a genuine dispute, the 2nd defendant would not decline referring to the Industrial Arbitration Panel. That the claimant’s unsuccessful request for referral to lAP means that claimant knows that in an appropriate case where there is a real dispute, lAP is the right forum. Thus, the claimant cannot just come to this Honourable Court without having gone through the lAP. He argued that the 3rd defendant’s counter affidavit together with the accompanying exhibits has alleged fraud against her. Peoples Democratic Party (PDP) & 4 Ors v Ezeonwuka & Anor [2018]3 NWLR (Pt. 1606)187 at 263-264, per Eko, JSC.

  1.             Furthermore, that the facts of the case before the Court fit into the dicta in the above Supreme Court case and that to grant the reliefs is to project a scandalous suit conceived and designed to abuse the process of Court. Elisabeth Mabamije v Hans Wolfgag Otto [2016] 13 NWLR (PT. 1529) 171 at 193; Saraki v Kotoye (1992) 9 NWLR (PT. 264) p. 156; Denton —West v Jack (2013) 15 NWLR (PT. 1377) 205 at 222.

ON ISSUE 4

  1.             Whether the suit as constituted is not a fraud against the 3rd defendant such as renders claimant liable to refund to the 3rd defendant the check—off dues of the sum of N33,843,24380 due to the 3rd defendant but which it fraudulently collected from the defendant in respect of senior employees from 2013 to November 2016.

 

  1.             It is counsel’s contention that by S.17 (a) of the Trade Unions Act Cap T.14 in conjunction with S. 5(3) of the Labour Act, the 1st defendant as an employer is obligated to accord recognition to the 3rd defendant, deduct check-off dues from the senior staff and remit to the 3rd defendant monthly. NASU V Governing Council Kwara State Polytechnic, Ilorin & Anor (2013) 34 N.L.L.R (PT. 101) 576 at 615; CAC V AUPCTRE (Supra) at Page 1.

 

ON ISSUE 5

  1.             Whether the 3rd defendant has discharged the burden of proof placed on her by law to establish the counter claim to entitle her to judgment for the check-off dues of N33, 843,243.80 due to the 3rd defendant but which the claimant fraudulently collected from the 1st defendant from 2013 to November 2016.

 

  1.             The 3rd Defendant’s Counsel submitted that the nature of a counter claim, and how it is proved, was one issue the Supreme Court revisited in the recent case of Ademola Kolade & 3 Ors v Alhaji Abiola Ogundkun [2017] 18 NWLR (Pt. 1596) 152 at 173/174, where it said that it is a separate and independent case and it is proved the same way as the main case. Okoye & 6 Ors v Nwankwo [2014)15 NWLR (Pt1429)93 at 126-129. On the burden of proof of the counter claim, counsel referred the Court to Sections 121, 123, 124 & 131, 132, 133 & 134 of the Evidence Act and urged the court to hold that the 3rd defendant has discharged the burden of proof placed on her by law to entitle her to judgment on the counter claim.

  1.             The 3rdDefendant Counsel argued that the claimant’s claim is predicated on the fact that it had been collecting check-off dues from the 1st defendant since 2013 and disaffection is setting in as a result of the 2nd defendant’s letters in its exhibits. But that the 3rd defendant has deposed to the fact that the collection of check-off dues by the claimant was not (is still not) a legitimate action. That on the contrary, it was an exercise in fraud which, is apparent on the documents exhibited even by the claimant to the Originating Summons where the deponent operated under different names of Ayo Oluwafemi and Ayo Olorunfemi to conceal his true identity. PRESSSA v SENIOR STAFF ASSOCIATION OF STATUTORY CORPORATIONS & GOVERNMENT OWNED COMPANIES, [2009114 N.L.L. R. (Pt.39) 306 at 342- 343; NIGERIAN CIVIL SERVICE UNION V ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA [2004)1 NLLR (Pt. 3) 429.He submitted that merely unionizing a group of workers and collecting check-off dues from them or their employer, albeit illegally, does not confer a right of action from which a cause of action can arise as the claimant seeks to do by its paragraph 6 of the supporting affidavit. ATSSSAN v Nigerian Aviation Professionals Association [2009)14 NLLR (Pt. 39) 345 at 369-370.

 

  1.             The 3rd Defendant Counsel submitted that the policy of law is that any person who has improperly or fraudulently taken what does not belong to him must be made to return it. That this is on the principle of equity and or justice. Peoples Democratic Party (PDP) & 4 Ors v Ezeonwuka & Anor (Supra) 263-264.

ON ISSUES 6 AND 7

  1.             Whether the 3rd defendant has not made out a case for a grant of injunction against the claimant restraining her from further interfering with the 3rd defendant’s interest in the 1st defendant by way of unionising the senior staff and collecting check-off dues from them

 

  1.             Whether this is not an appropriate case for the Court to order a referral of the conduct of the claimant and its General Secretary, Ayo Oluwafemi whose real names are Ayodele Festus Olorunfemi otherwise Ayo Olorunfemi to Police for investigation and possible prosecution.

 

  1.             3rd defendant Counsel noted that the first point is whether the Court has the power to issue injunction and whether a case has been made out for it here. He replied in the positive that under the Rules, the Court has power to issue an order of injunction. COMRADE ONAGHINO & ANOR V COMRADE IKEGBULAM [2013)35NLLR (Pt.105) 415; NEW NIGERIAN BANK PLC. V UDOBI [2015)59 NLLR (PT.207)666. He urged the court to hold that on the claimant’s admission on oath alone coupled with the statutory provisions and authorities cited, the court can safely make the declarations sought together with the order of perpetual injunction. NUSDE V SEWUN (Supra).

 

  1.             Counsel maintained that another consideration is that if injunction is not granted, the claimant/1st defendant to counter claim will continue in its illegal actions of collecting check-off dues to the counter claimant’s, continuous loss. That an order of injunction is therefore, necessary in a situation such as is covered by the facts of this case to restrain any further illegality. Chief Sunday Oriorlo & 14 Ors v Chief Joseph Osain & 2 Ors [2012)16 NWLR (Pt.1327) 560. He argued that the point here is also significant because from all the authorities including CAC V AUPCTRE (Supra) and Onuorah V Access Bank Plc. (2015) 55 N.L.L.R (PT. 186) 18 at 70 — 72, the claimant knew or ought to know that it had no statutory mandate to collect check-off dues from the 1st defendant in respect of its senior staff. Chemicals & Non-Metalic Products Senior Staff Association v Benue Cement C. Plc. (2005) 2 N.L.L.R (PT. 6) 446.

 

  1.             Counsel referred the Court to the recent decision of this Honourable Court, per Bashir, in a similar case of Amalgamated Union of Public Corporations, Civil Service Technical & Recreational Services Employees v AGF & 3 Ors (Unreported), Suit No. NICN/ABJ/166/2016 of 27th April 2018 where this Honourable Court refused similar declaration and orders sought by the claimant, in that case against the 3rd defendant. ASCSN v INEC Suit No. NIC/10/03 of 6th October 2008.

 

 

  1.             WRITTEN ADDRESS OF THE 1ST DEFENDANT ON THE QUESTION OF LAW RAISED SUO MOTU BY THE HONOURABLE COURT DURING THE PROCEEDINGS OF 4TH OCTOBER, 2018 (filed on 9th October, 2018).

ISSUE

  1.             Whether, in view of the provisions of the Trade Unions Act (Cap T14, LFN 2004, as amended) the suit of the Claimant is not incompetent?

 

  1.             The 1st Defendant Counsel posited that to the extent that the same issue is pending before the Court of Appeal on a subsisting judgment of this Honourable Court, in which the Claimant is a party, it would be tantamount to arm-twisting this Honourable Court to sit on appeal on its own judgment. ZABUSKY v. ISRAEL AIRCRAFT IND (2008) 2 NWLR (Pt. 1070) 109 at Page 136 Para. F; per Salami, JCA (as he then was). He submitted that to the extent that the said 1st question of law being distilled for determination is a subject of a subsisting matter before the Court of Appeal (in which the Claimant herein is a party), an attempt to delve into the same matter by this Honourable Court in the instant suit would be tantamount to a grave abuse of the Court process. R-BENKAY NIGERIA LTD v. CADBURY NIGERIA LTD (2012) 3 S.C (pt. III) 169 at page 173, Paras 5 – 15; per NGWUTA, J.S.C.; ABUBAKAR v. B.O. & A.P LTD (2007) 18 NWLR (Pt. 1066) 319.

 

  1.             On the 2nd question of law submitted for determination by the Claimant as regards: ‘…whether the letter dated 24th November 2016 from the 2nd Defendant is valid under the law…’; counsel submitted that within the purview of Section 53 of The Trade Unions Act CAP T14 LFN 2004, the 2nd Defendant would be deemed to be giving effect to the provisions of the Act as statutorily required. Counsel posited that within the ambit of the literal rule of interpretation of statute, as exemplified in a plethora of cases such as: ADESANOYE v. ADEWOLE (2000) 5 S.C. 124 at Page 155 Para 35; FRN v. OSAHON (2006) Vol. 4 M.J.S.C1 at Page 86 Paras A – C; the said letter (which legal efficacy is being submitted for determination by the Claimant) falls within the scope of statutory duties bestowed on the 2nd Defendant under Section 53 of the Trade Unions Act. He urged this Honourable Court to note the precise definition of the word “Regulation” as stated on page 1311 of the Black’s Law Dictionary 8th Edition. Counsel also invited the Court to note the position of the law as regards the scope of the application of the Public Officers Protection Act as stated by the Court of Appeal in the case of DAUDU v. UNAM (2002) 17 NWLR (Pt. 796) 362, per MUNTAKA-COOMASSIE, J.C.A (as he then was); Ekeogu v. Aliri (1991)3 NWLR (pt.179) 259, (1991) 3 SCNJ 45 at 51, per Kawu, J.S.C.

 

  1.             Applicants filed a MOTION ON NOTICE on 9th October, 2018 and supported by a 9 paragraph affidavit deposed to by Olorunfemi Ayodele, praying for the following orders.

  1. AN INTERIM ORDER OF INJUNCTION restraining the 2nd Defendant         from taking any action with respect to the claimant’s exercise of its jurisdiction,             that will prejudice the decision of this Honourable Court, pending the final             determination of this suit.

  1. In the alternative, AN ORDER OF COURT directing that parties to this suit,      maintains status quo ante bellum, pending the final determination of the suit.

WRITIEN ADDRESS IN SUPPORT OF MOTION ON NOTICE

ISSUES

Whether the Applicant have met the condition(s) for the grant of this Application by the Honourable Court.

 

  1.             Learned Counsel to the Applicant submitted that the Supreme Court per Karibi-Whyte, JSC in Babatunde Adenuga 5 Ors (2001) 2 NWLR (pt. 6 96) 184 at 195 defined an Injunction thus “ an equitable order restraining the person to whom it is admitted from doing the things specified in the order or requiring in exceptional situations the performance of a specified act”. Akapa v Hakeem-Habeed (1992) SCNJ (PART 1) 119 AT 137 paragraph 10-25; Ojukwu v Gov. of Lagos State (1986) 3 NWLR (pt. 26) 39. He submitted that it is well established that the grant of an junction is to protect the existing legal right of a person from unlawful invasion by another. Kotoye v CBN) (1989) 1 NWLR (PT 98) 419, that it is for the protection of & recognizable right. Obeya Memorial Hospital vs. AG Federation & Arion (1981)3 NWLR 325).
  2.             Counsel argued further that as contained in Section 254 (1) constitution 254 the 1999 constitution as amended, the power to determine the jurisdiction of a labour union is exclusively that of this Court and not the 2 Defendant this was the position in Olufusho vs. GSDI Ltd (2013) 8 WR.

 

  1.             3RD DEFENDANT’S WRITTEN ADDRESS ON ISSUE OF JURISDICTION BASED ON THE TRADE DISPUTES ACT PURSUANT TO ORDER OF COURT 04/10/18 (filed on 15th October, 2018).

  1.             3rd Defendant’s Counsel argued that they would like to view the development resulting in the Order of Court as dictated by the demands of justice and that accordingly, it affords all parties opportunity to look at the case again as captured in the processes before the Court. That from their perspective, what it comes to is that there is no competent suit before the Court as was earlier submitted. Ativie V. Kabelmetal Nig. Ltd (2008) 5 6 S. C (pt 1) 47.

 

  1.             Counsel submitted that by the doctrine of ripeness, a right of action will not be enforced or allowed to be enforced by a Court unless there has been a violation or threatened violation of it when a cause of action can be said to have arisen. CBN v Harris [2017] 11 NWLR (Pt1 1575) 4 at 79-81.

 

  1.             Furthermore, that unless there is a violation or threatened violation, the suit will be taken to be premature. San v Okene Local Government Traditional Council 92008)5-6 SC (Pt 11)131 at 134. He contended that if the Court finds that the case has not met the doctrine of ripeness, there will be no jurisdiction to go into it at all; that this is where the Trade Disputes Act comes in. FGN v Oshiomhole [2004] 1 NLLR (Pt.3) 541; Association of Food, Beverage and Tobacco Employers (AFBTE) v Food, Beverage and Tobacco Senior Staff Association (FOBTOB) [2015]59 NLLR (Pt207) 798 at 828832. Counsel submitted that on the combined effect of the relevant provisions, and the above case, there is no suit properly constituted before the court to vest it with the jurisdiction to entertain it. That following the provisions are Sections 7 & 54 of the National Industrial Court of Nigeria Act 2006 in conjunction with Sec.2 of the Trade Disputes Act Cap. T8 and S. 54 of the Trade Union Act Cap T.14, the administrative action of the 2nd defendant in its letter of 6th May 2016 and 24th November 2016 settled whatever dispute the claimant has with the & 3rd defendants.

 

  1.             REPLY ON POINT OF LAW TO CLAIMANT’S MOTION OF 9/10/18 filed on 17th October, 2018.

ISSUES

  1. Whether this motion is competent and is not otherwise an abuse of the process of Court.
  2. Whether the claimant can lawfully introduce a strange document which is not part of the exhibits before the court, a document issued by a non-party, in the case to procure an injunction against the parties including the 3rd defendant.

  1.             It is counsel’s submission that neither in substantive or procedural capacity can the claimant validly bring up a strange or unrelated letter such as the letter of June 2018, not connected anyhow with the case before the court, to procure injunction against the parties including the 3rd defendant. Furthermore, that the claimant’s Originating Summon makes no claim against the 3rd defendant. Ativie v Kabel Metal Niger Ltd (2008) 5 — 6 S. C. (Pt.11) 47. Counsel submitted that the principle of law even in the cases relied on by the claimant is that there must be a real threat, not imagined or imaginary threat, to justify an injunction. Also, that there must be a state of real urgency, not self-induced, to justify issuing an injunction, interim and or interlocutory. Kotoye v CNB (1989) 1 N.W.L.R (PT. 89) 419; Akapo v Hakeem-Habeeb (1992)6 NWLR (Pt.247) 266. Counsel maintained that the 3rd defendant has also posited that this motion is an abuse of the process of court; and that what constitutes an abuse of the process of court has been defined in several cases. Mabamije v Hans Wolfgang Otto (2016) 13 N.W..LIR (Pt. 1529) 171 at 193; Saraki v Kotoye (1992) 9 NWLR (PT. 264) p. 156; Dingyadi v INEC (No. 2) [2010] 18 NWLR (Pt. 1244) 154 at 195.

  1.             On the             30th November 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for ruling/Judgement.

Court’s Decision

 

  1.             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 to my mind is whether the Claimant has established the basis to obtain the reliefs sought.

  1.             Claimants case from his question 1 presents as a case where the Claimant is asking the court to make a pronouncement as to their right to unionize within the 1st Defendant, that is as to the Claimants jurisdictional scope. The 2nd question, with its reference to the contents of the 2nd Defendants letter, invites the court to make a pronouncement as to between the Claimant and the 3rd Defendant who is the proper union to unionize the 3rd Defendant, which I find raises a question of a probable trade dispute, hence the invitation by the court suo moto for addresses of parties on the propriety of the Claimant’s suit with regard to the provisions of the TDA.

  1.             Both parties filed their written addresses and adumbrated their respective positions as summarized above.

  1.             Bearing in mind that it is the Claimant claim that confers jurisdiction on the Court and the Courts judication to prescribe by the constitutions and the enabling statutes
  2.             The jurisdiction of this Court is confined to Section 7 (1)  of the National Industrial Court Act 2006,
  3.             Furthermore, section 7 (1) of the National Industrial Court Act, states:

“The Court shall have and exercise exclusive jurisdiction in civil causes and matters-

(a)    relating to –

  1. labour, including trade unions and industrial relations; and

iii.                environmental and conditions of work, health, safety and welfare of labour, and matters incidental thereto.

 

  1.             Section 254(C) of the 1999 Constitution as amended;

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-

  1.       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;

  1.       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;

                                                          iii.      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;

 

  1.       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;

  1. i)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;
  2. ii)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;

(5)        The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law.

  1.             FEMI BABALOLA Vs. ACCESS BANK NICN/LA/123/2012 (unreported) delivered on the 23rd  January 2013.

  1.             I am aware of the court pronouncement in PATRICIA N. UGWU & ORS. V. OSSY ROCKE FELLER OGBOSO (2010) 21 NLLR (PT. 58) 164 @180 PARAS E- H the full panel of this Honourable Court held as follows:

“The point must be made that this court under section 7 of the enabling law, the National Industrial Court Act, has jurisdiction over matters relating to trade unions. This court, however, has generally and over time held in numerous cases that, given section 7(3) of the National Industrial Court Act, 2006 inter and intra-union disputes ought to ordinarily go through the dispute resolution processes of Part 1 of the Trade Disputes resolution processes of Part 1 of the Trade Dispute Act.

 

  1.             However, considering the nature of the claimant’s reliefs which I find are merely an attempt to curiously take advantage of the interpretive jurisdiction to adjudicate a trade dispute.

  1.             It is in that wise that I am declining jurisdiction.  The Claimant should first go through the dispute resolution processes of Part 1 of the Trade Disputes resolution processes of Part 1 of the Trade Dispute Act.

  1.             The action of the Claimant is premature and is hereby struck out.

  1.             This is the court judgment and it is hereby entered accordingly.

…………..…………………….

HON. JUSTICE E. N. AGBAKOBA

JUDGE

admin

Website:

Related Story