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National Industrial Court

MEDICAL & HEALTH WORKERS UNION OF NIGERIA & 5 ORS -VS- ATTORNEY-GENERAL OF KADUNA STATE & 1 other

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON WEDNESDAY 6TH DAY OF FEBRUARY 2019

BEFORE HIS LORDSHIP: HON. JUSTICE  SINMISOLA 0. ADENIYI

SUIT NO: NICN/KD/26/2018

BETWEEN:

  1. MEDICAL & HEALTH WORKERS UNION OF NIGERIA}
  2. NIGERIA CIVIL SERVICE UNION}……………………CLAIMANTS
  3. NIGERIA UNION OF JOURNALISTS}
  4. SENIOR STAFF ASSOCIATION OF NIGERIAN UNIVERSITIES}
  5. ACADEMIC STAFF UNION OF UNIVERSITIES}
  6. AGRICULTURAL & ALLIED EMPLOYEES OF NIGERIA}

AND

  1. ATTORNEY-GENERAL OF KADUNA STATE}
  2. KADUNA STATE GOVERNMENT}………………….DEFENDANTS

J U D G E M E N T

The Claimants are Trade Unions and affiliates of the Nigeria Labour Congress, the Central Labour Organization. The main objective of the Claimants is to promote, protect and advance the economic, political and social rights and well being of their workers.

  1. The summary of the Claimants’ claim against the Defendants, from facts garnered from the processes filed to commence the instant action, is that on 23rd January, 2018, the 2nd Defendant by an internal memo directed that deduction of union dues at source should be stopped from January 2018 salaries until otherwise directed. The Claimants further contended that union dues deducted at source by the 2nd Defendant between January and December 2017, from salaries of workers in the employment of the 2nd Defendant who are Claimants’ members or eligible members have not been remitted by the Defendants to the Claimants. The Claimants also alleged that they are unable to discharge their responsibilities to their members due to the stoppage of deduction of union dues and the failure to remit same.
  2. Being thereby aggrieved by the actions of the Defendants, the Claimants instituted the present action by Originating Summons filed in this Court on 30/05/2018, whereby they prayed the Court for the determination of the questions set out as follows:
  3. WHETHER the Defendants or their agents, servants or privies or anyone acting on their behalf or instructions are legally and constitutionally empowered and authorized to stop the deductions of union dues at source from salaries of the Plaintiffs workers in their employment who are members of the Union or eligible to be members of the Claimants and remitting the same to the Claimants.
  4. Whether the stoppage of the deductions of union dues at source by the Defendants or their agents, servants or privies or anyone acting on their behalf or instructions does not offend the provisions of Section 5(3) of the Labour Act, Cap L1, Laws of Federation of Nigeria, 2010; Section 17 of the Trade Union Act, Cap T14, Laws of Federation of Nigeria, 2010 and Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  5. Whether the Defendants or their agents, servants or privies or anyone acting on their behalf or instructions are legally and constitutionally empowered and authorized to retain Union Dues deducted at source from the salaries of workers in their employment who are members or eligible to be members of the Claimants without remitting the same to the Claimants.
  6. Whether the retention of Union dues deducted at source by the Defendants from the salaries of workers in their employment who are members or eligible to be members of the Claimants without remitting the same to the Claimants does not violate the provisions of Section 5(3) of the Labour Act, Cap L1, Laws of Federation of Nigeria, 2010; Section 17 of the Trade Union Act, Cap T14, Laws of Federation of Nigeria, 2010 and Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  7. Whether the directive issued by the Kaduna State Executive Council on the 23rd day of January, 2018 stopping forthwith deduction of Union Dues at source is illegal, null and void and of no effect whatsoever.
  8. Upon the determination of the questions set out in the foregoing, the Claimants thereby claimed against the Defendants the reliefs set out as follows:
  9. A DECLARATION that the Defendants or their agents, servants or privies or anyone acting on their behalf or instructions are not legally and constitutionally empowered and authorized to stop the deductions of union dues at source from the salaries of the Plaintiffs workers in their employment who are members of the union or eligible to be members of the Claimants and remitting the same to the Claimants.
  10. A DECLARATION that the stoppage of the deductions of union dues at source by the Defendants or their agents, servants or privies or anyone acting on their behalf or instructions offends the provisions of Section 5(3) of the Labour Act, Cap L1, Laws of Federation of Nigeria, 2010; Section 17 of the Trade Union Act, Cap T14, Laws of Federation of Nigeria, 2010 and Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  11. A DECLARATION that the Defendants or their agents, servants or privies or anyone acting on their behalf or instructions are not legally and constitutionally empowered and authorized to retain Union Dues deducted at source from the salaries of workers in their employment who are members or eligible to be members of the Claimants without remitting the same to the Claimants.
  12. A DECLARATION that the retention of Union Dues deducted at source by the Defendants from the salaries workers in their employment who are members or eligible to be members of the Claimant without remitting the same to the Claimants violates the provisions of Section 5(3) of the Labour Act, Cap L1, Laws of Federation of Nigeria, 2010; Section 17 of the Trade Union Act, Cap T14, Laws of Federation of Nigeria, 2010 and Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  13. A DECLARATION that the directive issued by the Kaduna State Executive Council on the 23rd day of January, 2018 stopping forthwith deduction of Union Dues at source is illegal, null and void and of no effect whatsoever.
  14. AN ORDER OF COURT compelling the Defendants, their agents, servants or privies to resume the deduction of Union Dues at source from the salaries of workers in their employment who are members or eligible to be members of the Claimants and remitting same to the Claimants accordingly.
  15. AN ORDER directing the Defendants, their agents, servants and privies to remit to the Claimants all Union Dues deducted at source from the salaries of workers in their employment who are members or eligible to be members of the Claimants between January and December, 2017.
  16. A PERPETUAL INJUNCTION restraining the Defendants, their agents, servants or privies or anyone acting on their behalf or instructions from further stoppage and or interfering in any manner whatsoever with deductions of Union Dues at source from salaries of workers in their employment who are eligible to be members of the Claimants and remittances of the same to the Claimants.
  17. N10,000,000.00 (Ten Million Naira) as damages against the Defendants for impunities and illegal stoppage of deductions of Union Dues at source and blatant refusal to remit union dues deducted at source to the Claimants
  18. The Defendants opposed the Originating Summons by filing a Counter – Affidavit on 10/10/2018, whereby they denied the entirety of the Claimants’ claim.

The Claimants thereafter filed a Further and Better Affidavit in support of their claim on 17/10/2018.

  1. In the meantime, the Defendants also filed a Notice of Preliminary Objection on 10/10/2018 to the present action challenging the jurisdiction of the Court to entertain the matter.

The preliminary objection is premised on four grounds, namely:

  1. The Claimants/Respondents lack the locus to institute the instant suit.
  2. The instant suit commenced by way of Originating Summons is incompetent and abuse of Court process.
  3. The Claimants/Respondents Affidavit in support is invalid in law.
  4. The Claimants/Respondents’ Affidavit in support of their Originating Summons does not disclose any cause of action in this suit.

Also filed alongside the preliminary objection is a written address wherein four issues were distilled for determination, namely:

  1. Whether the Claimants/Respondents have the locus standi to institute the instant suit?
  2. Whether having regards to the facts of this case and with particular reference to the Claimants’ Affidavit and Defendants’ Counter – Affidavit, this suit ought to be heard and determined by way of Originating Summons?
  3. Whether the Claimants’ Affidavit in support is valid in Law?
  4. Whether the Claimants’ Affidavit discloses any cause of action in this suit?

In reaction to the preliminary objection, the Claimants filed a Reply on Points of Law on 17/10/2018.

  1. The preliminary objection and the substantive suit was heard on 12/11/2018, at which the respective learned counsel for the parties adopted and adumbrated upon their respective written arguments to support and oppose the same as the case may be.

I should state that I had carefully considered the totality of the objection and that I had also taken due benefits of the totality of the written and oral arguments vigorously canvassed by the respective learned counsel. I should be permitted to state that I shall make specific reference only to the submissions of the respective learned counsel that I consider as very salient to the determination of the various issues raised as I deem necessary.

  1. As it is well know from time immemorial, the jurisdiction of a Court to entertain a suit is predicated on the concurrent presence of the following component factors, namely:
  2. That the Court is properly constituted as regards numbers and qualification of the members on the bench, and no member is disqualified for one reason or another;
  3. That the subject matter of the case is within its jurisdiction;
  4. That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

See the locus classicus decision of the Supreme Court in Madukolu Vs Nkemdilim [1962] All NLR 1. See also Adewunmi Vs A-G Ekiti State [2002] 1 SC 10; Miscellaneous Offences Tribunal Vs Okoroafor [2001] 18 NWLR (Pt. 745) 295.

  1. It is an age long settled principle of law that the question of jurisdiction goes to the root, fibre and foundation of a case and thus must be first and foremost considered as it forms the basis upon which a Court can entertain a suit. Jurisdiction gives life or otherwise to a suit. See NURTW & Anor Vs RTEAN [2012] LPELR 7840; Mbas Motel Vs Wema Bank PLC [2013] LPELR 20736; Anyanwu Vs Ogunlewe [2014] LPELR 22184; Raha Vs Ige 2017 LPELR 43916

When it is raised at any stage of trial, the Court will have to determine whether the subject matter is within its adjudicatory power. Once a Court finds that it is bereft of the competence to adjudicate on the case, it should hands off, as the law is that no matter how well conducted a case, it becomes a nullity. See N.N.P.C Vs Orhiowasele [2013] 13 NWLR Pt 1371 PT 1371 Pg 211 @ 224 SC.

  1. Suffice to quickly affirm the trite position of the law, as rightly submitted by the Claimants’ counsel, that in order to determine whether or not a Court can exercise jurisdiction over a matter, it is the facts averred in the Complaint and Statement of Facts or in the Affidavit in Support of the Originating Summons and the reliefs endorsed therein alone that the Court is required to examine and no more. See the cases of F.U.M.B. Ltd Vs Aerobell Nig Ltd [2005] ALL FWLR (Pt 281) 1651 at 1677; Moyosore Vs Gov. of Kwara State [2013] NWLR (Pt. 1293) 242; Guinness (Nig) PLC Vs SKA Nig Ltd [2012] 18 NWLR (Pt. 1331) 179.

So, as it is in the instant case, the Court must restrict itself to the facts averred by the Claimant in the Affidavit in Support of the Originating Summons and the reliefs sought in determining the issue of jurisdiction.

  1. Upon a careful appraisal of the totality of the Affidavit evidence led on the record and the document attached as Exhibit A to the Originating Summons; I am of the view that the focal issue that have arisen for determination in this suit, without prejudice to the issues formulated by the respective parties is:

“Whether in initiating the suit, the Claimants fulfilled the conditions precedent to the exercise of the Court’s jurisdiction for this Honourable Court to assume jurisdiction in this case”.

  1. As a starting point, permit me to deal with the issue canvassed by E.K. Bakam Esq., the learned counsel for the Defendants/Respondents wherein it urged the Court to strike out all the paragraphs of the Affidavit in support of the Claimant’s Originating Summons. Learned Defendants’ counsel contended that the said Affidavit did not state the facts and circumstances which formed the deponent’s belief; it also did not disclose the source of deponent’s information as deposed in paragraphs 4 (a) – (o) thereof and thereby offends the provisions of Section 115 (3) of the Evidence Act 2011. The learned Defendants’ counsel had submitted that the said provision of the Evidence Act is mandatory and urged the Court to strike out the offending paragraphs of the Affidavit for non-compliance. It is the contention of the learned Defendants’ counsel that the entire gamut of the depositions made in the instant case is hearsay as it contained information obtained from another person and therefore inadmissible. In conclusion, learned Defendants’ counsel urged the Court to strike out the offending paragraphs or in the alternative, urged the Court not to attach any probative value to the said paragraphs. In support of his propositions, learned counsel cited the authorities of Military Governor of Lagos Vs Ojukwu [1986] All NLR 233 at 250; Osian Vs Flour Mills of Nigeria Ltd [1986] All NLR 432 at 434; Nahman Vs Wolowicz [1993] 3 NWLR (PT 282) 443 at 456; Orunlola Vs Adeoye [1995] 6NWLR (PT 401) 338 at 353.
  2. Mr. Martins Joseph Esq., the learned Claimants’ counsel’s submission in reaction to this issue however, is that, the Affidavit in support of the Claimants’ Originating Summons is valid. Learned counsel argued that the Claimants complied with all the conditions required by Section 115(3) of the Evidence Act.
  3. Now, I have closely examined the issue canvassed by the learned Defendants’ counsel vis-a-vis the purported offensive paragraphs of the Affidavit. I cannot see the merit in the Defendants’ contention of non-compliance thereto. The deponent, one Loretta Obianuju Izuka clearly in paragraph 3 of the said Affidavit, deposed to the facts that she has personal knowledge of the facts and also that the information was made available to her by the representatives of the Claimants. The said deponent in paragraph 4 of the Affidavit further deposed that she believed the information given by one Comrade Bio Josiah, National President of the Claimants when he was interviewed in her office. The deponent further stated the time, date and place where she got the information. Without further ado, I hold the view that the said paragraphs of the Affidavit adequately complied with the provision of the Section 115(3) of the Evidence Act. Learned Defendants’ counsel on this issue is hereby discountenanced.
  4. Having held that paragraphs 4 (a) – (o) of the Affidavit in support of the Originating Summons is valid, I now turn to the sole issue for the determination in the instant application.
  5. My understanding of the Claimants’ case, as garnered from facts deposed in the Affidavit in Support of the Summons, in brief, is that the Claimants are Trade Unions with members or eligible members who have the obligation to pay check – off dues. The said check – off dues are to be deducted from source by the 2nd Defendant (their employer) and remitted to the Claimants. However, on 23/01/2018, the Kaduna Executive Council issued an internal memo wherein it directed that deductions of union dues at source for its workers should be stopped from January 2018 salaries until further directives. A copy of the said internal memo is attached to the Affidavit as Exhibit A. The Claimants further alleged that the union dues that were deducted at source by the Defendants in 2017 from salaries of workers who are members or eligible members of the Claimants have not been remitted to the Claimants. It is also alleged that due to the stoppage of the deduction by the 2nd Defendant of the check – off dues from members or the eligible members and the failure to remit same, the Claimants have not discharged their responsibilities to their members.
  6. Now, from the totality of the relevant facts, which indeed excludes the totality of facts deposed in the Affidavit in support the instant objection, the following salient facts, in my view, are not in contest:
  7. That the Claimants are Trade Unions with members or eligible members who are workers/employees of the 2nd Defendant; these members or eligible members have obligations to pay check – off dues to the Claimants.
  8. That the said check – off dues is to be deducted by the 2nd Defendant from source and remitted to the Claimants, being the workers/employees of the 2nd
  9. That by an internal memo of 23/01/2018, a directive was issued by the Executive Council of Kaduna State that deduction of union dues at source should be stopped from 2018 from the salaries of the Claimants’ members and until further directed;
  10. I should note at this juncture, that the manner of presentation of the argument of the learned counsel for the Defendants on the issue of locus standi as framed in his written address is inelegant with capacity to confuse issues. The argument and submission canvassed by the learned Defendants’ counsel on the issue of locus standi relates to the fulfilment of legal conditions before the instituting an action. I am of the view that these are two different legal principles but the learned Defendants’ counsel muddled up both issues in his written address. However, based on his concluding submission that this Honourable Court cannot exercise original jurisdiction over trade dispute, I take it that the issue canvassed by learned Defendants’ counsel is that of fulfilling pre – conditions precedent to the exercise of Court’s jurisdiction. Learned counsel for the Defendants posited in his argument that the dispute between parties in the instant suit is trade dispute. Citing the provision of Section 48 of the Trade Dispute Act Cap T8` Laws of Federation of Nigeria 2006 and the case of Olutomilayo Vs A.G.Federation [2015] 62 NLLR (PT 217) 214, learned counsel submitted that by the provision of the Trade Dispute Act (TDA), recourse for redress for trade disputes ought to follow the procedure provided in Part 1 of the TDA. Learned Defendants’ counsel further submitted that this Court is robbed of its jurisdiction to entertain the Claimants’ suit for failure to take the necessary procedure before initiating this suit.
  11. The learned counsel for the Claimants’ submissions in his Reply on Point of Law, in turn is centrally to the effect that the Claimants’ have sufficiently placed the necessary facts before this Court that disclosed their rights and interests which have been violated by the Defendants. Learned Claimant’s counsel posited that, the Court’s consideration on the objection is whether the Defendants as employees of the members of the Claimants have the legal capacity to stop deduction of check –off dues from their salaries. He further argued that the Claimants’ complaint is not trade dispute within the definition of Part 1 of the Trade Dispute Act as alleged by the Defendants. Learned counsel finally submitted that the preliminary objection is misconceived and urged the Court to dismiss same. To further support his arguments, learned Claimants’ counsel in turn cited the following authorities, inter alia, namely: Ojukwu Vs Ojukwu [2009) All FWLR (PT 463) 1243; Osoh Vs Unity Bank PLC [2013] All FWLR (Pt 690) Pg 1245
  12. In considering the issues at hand, a word or two may be necessary at this stage. In the first place, both counsel to parties in their respective submissions showed little appreciation of the intricate labour issues involved in this matter. In consequence, both counsel ended up with pretty verbose and irrelevant materials that were of little help. Even the appreciation of the judicial authorities within the context of the issues at hand was poor. Secondly, without having to go far, the learned counsel for the Defendants erroneously submitted that the Claimants as trade unions have no locus standi to sue on behalf of their members based on the directive in Exhibit A to stop the deduction and remittance of the check – off dues. With due respect, learned Defendants’ counsel need to be educated that this Court has over time recognized the right of unions to sue on behalf of their members; but whether the unions can sue by activating the original jurisdiction of this Court remains the question.
  13. Let me say from the outset that a trade dispute is any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person. See: Section 47(1) of the Trade Disputes Act, Cap 432, Laws of the Federation 1990; Section 54 Trade Unions Act Cap T 14 Laws of Federation of Nigeria 2005; Tidex Nig Ltd Vs Maskewa & Anor [1998] LPELR 6168; Apena Vs N.U.P.P.P.P. (2003) 8 NWLR (PT 822) 426 at 447 – 448; Oshiomhole & Anor Vs FGN & Anor [2006] LPELR 7570

See also Section 54 of the NIC Act 2006 where trade dispute is defined as:

“any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with:

(a) the employment or non – employment of any person, (b) terms of employment and physical conditions of work of any person;

(c) the conclusion or variation of a collective agreement; and

(d) an alleged dispute”

  1. From the reliefs being sought, the Claimants are suing the 2nd Defendant, the employer of the Claimants’ members, for stopping deduction of check – off dues. See Reliefs (1), (4), (6) and (8) where the members of the Claimants are described as workers of the 2nd Defendant. See also paragraph 4 (a) of the Claimants’ Better and Further in response to the Defendants’ Counter – Affidavit, where it was deposed that all the employees of the 2nd Defendant are by reason of their employment members of the Claimants.
  2. Now, the term worker is described in Section 48 TDA (supra) as “any employee, that is to say any public officer or any individual (other than a public officer) who has entered into or works under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, express or implied, oral or in writing, and whether it is a contract of service or of apprenticeship”. And a public officer means, “a member of the civil service of the Federation or of a State”

Furthermore, it has been held that check off dues relates to the terms of employment which is the subject matter of the Claimants’ claims against the Defendants. Based on the foregoing therefore, I am of the firm view that the subject matter of the Claimants’ claim discloses a trade dispute. And I so hold.

  1. This said, the legal issue that calls for determination is whether under the Section 7(1) (a) NIC Act 2006 and Section 254C (1) (b) of the 1999 Constitution (as amended), trade disputes fall within the original jurisdiction of this Court? Or to put it differently, whether trade disputes must go through the processes of Part I of the TDA (supra) before it can be heard by this Honourable Court?

Section 7 (3) NIC Act provides that the National Assembly may by an Act prescribe that any matter under Section 7 (1) (a) of the NIC Act go through the process of conciliation or arbitration before such matter is heard by the Court. The TDA was prescribed by the National Assembly for the process of conciliation and arbitration.

  1. Having held that the cause of action as presented by the facts of this case discloses a trade dispute, the best course of action for the Claimants is to declare a trade dispute and exhaust the dispute resolution processes of Part I of the TDA before approaching this Court. It is a condition precedent that before the Court can assume jurisdiction over matters stated in Section 7 (1) (a) of the NICA, the internal dispute mechanism agreed to by or binding upon the parties must be exhausted. Also, the processes of mediation, arbitration or conciliation pursuant to the TDA must also be exhausted before a suit such as this is commenced before this Court. See: Comrade Anthony and Anor Vs Comrade Iloduba and Ors [2010] 18 NLLR (Pt 50) 229; NUSDE Vs SEWUN [2013] 35 NLLR (PT 106) 606 at 644.

This principle can be gleaned from this Court’s decision in Eleme Petrochemicals Vs Dr Morah Emmanuel [2009] 17 NLLR (Pt. 46) 81 at 106, which is as follows –

“The complaint of the Counter-Claimant in the Counter-Claim is one connected with his employment or non-employment, which makes it a trade dispute within the meaning of section 48 of the TDA.  This means that the process of mediation, conciliation and arbitration in Part I of the TDA ought to have been exhausted by the defendant before filing the counterclaim. See  Hotel & Personal Services Senior Staff Association Vs Ikeja Hotel Plc & Ors (unreported) Suit No. NIC/39/2008 delivered on 2nd July 2009 and Anthony Oyekanmi & Ors Vs NITEL & Bureau of Public Enterprises (unreported) Suit No. NIC/7/2008 delivered on July 15, 2008. The interpretation jurisdiction of this court cannot be used to adjudicate the trial issues raised in the counterclaim…..”

  1. It is trite that a Court is only competent to exercise jurisdiction where the case comes before the Court by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction – Rivers State Government Vs Specialist Konsult [2005] 7 NWLR (PT 923) 145 SC 171. From the facts before the Court, these conditions precedent were not fulfilled before the Claimants/Respondents rushed to this Court to institute this matter.
  2. On the basis of the foregoing analysis therefore, my decision I have arrived at is that the Claimants’ case is premature. I find in the result that without further considering the other grounds of objection, this Court lacks jurisdiction to entertain it. It is hereby accordingly struck out.

I make no order as to costs.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

06/02/2019

 

Legal representation:

Martins Joseph Esq. for the Claimants

E.K. Bakam with A.A. AmbisaEsq. for the Defendants

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