SWIRE OILFIELD SERVICES NIGERIA LTD -VS- NATIONAL UNION OF

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 11^th day of March, 2020

SUIT NO: NICN/PHC/89/2019

BETWEEN

SWIRE OILFIELD SERVICES NIGERIA LTD—————-CLAIMANT

AND

NATIONAL UNION OF PETROLEUM AND

NATURAL GAS WORKERS (NUPENG) —————- DEFENDANT

Representations:

Collins Ovat with A. Nwuke for the Claimant.

Osuji for the Defendant.

Judgment.

This suit which was originally before Hon. Justice O.O. Oyewumi in the Lagos Division before it was transferred to this court sometime in November 2019 was commenced by way originating summons filed on the 23^rd of July, 2019 whereby the Claimants sought the determination of the following questions:

Whether by the provisions of section 43(1) and 54 of the Trade Unions Act (as amended) the refusal of claimant’s employees to join defendant’s union qualifies as a trade dispute to warrant the defendant’s unlawful industrial action against the claimant and blockade of the claimant’s premises.
Whether by the provisions of Section 43(1A) of the Trade Unions Act (as amended) the defendant can lawfully block the entrance and exit to the claimant’s premises since the 15^th of July, 2019 and thereby refuse Claimant’s staff, management and business associates right of access to the claimant’s premises, and force them to stay at home.
Whether by the provisions of Section 43(1B) of the Trade Unions Act (as amended) the defendant can lawfully coerce and force claimant’s employees who are not members of the defendant to join the defendant’s unlawful industrial action.
Whether the defendant’s action in denying Claimant’s staff, management and business associates right of access to the claimant’s premises, and forcing them to stay at home is not a violation of their right to personal liberty and right to freedom of movement enshrined in Sections 35 and 41 of the 1999 Constitution(as amended).

Claimant is upon the resolution of the foregoing questions, seeking the following reliefs:

A Declaration that the defendant’s unlawful industrial action against the Claimant is not in contemplation or furtherance of a trade dispute as provided for under Sections 43 and 54 of the Trade Unions [Amendment] Act, 2005.
A declaration that the defendant’s unlawful action in blocking the entrance and exit to the claimant’s premises since 15^thof July, 2019, thereby depriving Claimant’s staff, management and business associates right of access to the premises is contrary of Section 43(1)(a) of the Trade Unions Act (as amended).
A declaration that the defendant’s unlawful action in coercing and forcing claimant’s employees who are not members of the defendant to join the defendant’s unlawful industrial action is contrary to Section 43(1)(b) of the Trade Unions [Amendment] Act, 2005.
A declaration that the defendant’s acts in coercing and forcing Claimant’s employees who are not its members to join the defendant’s union is a violation of the defendant’s employees’ rights to freedom of assembly and association enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria and therefore unlawful, untenable, illegal, void and of no effect whatsoever.
A Declaration that the defendant lacks the right to exercise authority outside its constitutionally recognised powers and cannot exercise rights over employees of the Claimant who are non-members of its union.
A Declaration that the defendant is not entitled to embark on any industrial or strike action against the Claimant in respect of any matter not within the ambit of the provisions of the Trade Unions [Amendment] Act, 2005.
An order of mandatory injunction compelling the defendant, its members and privies to immediately remove the defendant’s bus and claimant’s forklift with which it blocked the claimant’s gate, and desist forthwith from unlawfully blocking ingress and egress of claimant’s premises.
An order of perpetual injunction restraining the defendant from further disrupting the business activities of the claimant by blocking the entrance and exit to the claimant’s premises and thereby restricting the freedom of movement of claimant’s employees, management and business associates.

In support of the originating summons, Claimant filed a 20 paragraphed affidavit deposed to by one Eno Inyang and also a written address in compliance with the Rules of this Court.

The Defendant on the 28^th of November, 2019 responded to the Originating Summons by filing a 22 paragraphed Counter-Affidavit deposed to by one Saro Gurete and also a written address in opposition to the Originating summons.

Upon receiving the Counter affidavit, Claimant on the 16^th of January, 2020 filed a further affidavit of 20 paragraphs and filed along same, a reply on points of law.

Arising from the affidavit in support of the originating summons, the highlight of facts leading to the questions for determination and reliefs sought by the Claimant is that the Deponent posited that while Some of the Claimant’s employees are members of the defendant, a majority of the employees of the claimant including some management staff are not, but the defendant without submitting any dispute to the claimant instigated its members, who are employees to embark on strike action against the claimant on the 5^th day of July, 2019 and the defendant also proceeded to picket the premises of the Claimant. The Deponent added that the defendant in carrying out its strike and picketing has since the 15^th day of July, 2019 blocked the entrance and exit of the premises of the Claimant with its bus and as a result, the Claimant has been unable to carry on its business operations till date. He added that the matter was reported to the Police.

In reaction to the foregoing, the Defendant’s deponent posited that except for the senior staff, all junior and intermediate workers/employees of the claimant company are members of the defendant/ respondent union as the junior staff voluntarily opted to join the Union to the knowledge of the Claimant by a letter dated the 18^th of April, 2019 while the Defendant created a branch of its union among the said workers and notified the Claimant but the Claimant refused to allow them unionize and started to victimize them by terminating their employment. The Deponent added that several meetings were held between the claimant’s management and the defendant representatives at the instance of the State Controller of the Federal Ministry of Labour and Employment towards amicably resolving the issues raised but all the efforts were frustrated by the obstinacy of the said management. He stated further that after the conciliation, the Defendant requested the Claimant to deduct check off dues from salaries of the union members but the Claimant refused on the ground that most of its workers are projection of management and as such were not supposed to join trade union and same led to another invitation of the State Controller, Federal Ministry of Labour & Employment by a letter dated 26^th June, 2019 requesting for its further intervention before resolving to a3 day warning industrial action against the Claimant which was called off on the 22^nd of July, 2019. The Deponent denied that the entrance and exit of the Claimant was blocked with any vehicle till date and that the industrial action never turned violent and no person was assaulted while it is within the legitimate right of the Defendant members to embark on industrial action when necessary to press home their demand.

I reckon that the Claimant countered some of the assertions made by the Defendant in their further affidavit and same will be considered in the course of determination of the questions before the court.

Arising from the written address filed on behalf of the Claimant, counsel to the Claimant, Collins Ovat Esq. formulated three issues for determination to wit:

Whether the refusal of claimant’s employees to join defendant’s union qualifies as a trade dispute to warrant the defendant’s industrial action against the claimant and blockade of the claimant’s premises.

Whether the defendant can lawfully barricade the entrance and exit to the claimant’s premises since the 15th of July, 2019 and thereby refuse Claimant’s staff, management and business associates right of access to the claimant’s premises, and force them to stay at home.

Whether the defendant can lawfully coerce and force claimant’s employees who are not members of the defendant to join the defendant’s union and unlawful industrial action.

In arguing issue one, counsel contended that the refusal of the claimant’s employees to join defendant’s union is not a trade dispute within the contemplation of Section 54 of the Trade Unions Act (as amended). He added that the determination of what is a trade dispute and whether there is a trade dispute is crucial in the determination of this suit as the right to picket, if any, can only accrue to the defendant or arise if there is a trade dispute and cited section 47 of the Trade Disputes Act and section 54 of the Trade Unions Act and the case of ADAMS OSHIOMOLE & ANOR V. FEDERAL GOVERNMENT OF NIGERIA & ANOR (2006) LPELR – 7570(CA) Pp. 22-23, Paras E-A on the definition and scope of a trade dispute.

Counsel then submitted that the defendant’s disagreement over the refusal of claimant’s staff to join its union does not qualify as a trade dispute within the meaning of Section 47 of the Trade Disputes Act and Section 54 of the Trade Unions Act, 2005 and urged the court to so hold.

With regards to issue two, counsel submitted that assuming but without conceding that the defendant can lawfully strike and picket the claimant’s premises, the defendant is bound to exercise such right to strike within the confines of the law regulating trade disputes. He cited the case of ADAMS OSHIOMOLE & ANOR V. FEDERAL GOVERNMENT OF NIGERIA & ANOR (SUPRA) Pp. 25-26, Paras E-A.) to submit that that the defendant’s actions in blocking all ingress and egress to the Claimant’s business premises are unlawful and contrary to Section 43(1A) of the Trade Unions Act (as amended) and Sections 35 and 41 of the 1999 Constitution (as amended).

Counsel added that the Court has a duty to protect the Claimant’s right by making an order restraining the defendant from persisting in the violation of claimant’s rights and carrying out its threat to totally shut down claimants business activities. He cited the case of KOTOYE V. CBN 1989 1 NWLR PART 98 P. 419 @ 422.

With regards to issue three, Counsel submitted that the defendant cannot lawfully compel, force or coerce the claimant’s staff who are not its members to join its union or unlawful industrial action and placed reliance on the provisions of Section 43(1B) of the Trade Disputes Act.

He added that the action of the defendant in coercing and intimidating the claimant, claimant’s staff and business associates and preventing them from doing their lawful work is unlawful and cited the case of ADAMS OSHIOMOLE & ANOR V. FEDERAL GOVERNMENT OF NIGERIA & ANOR (Supra) LPELR – 7570(CA).

Counsel concluded the address by urging the court to grant the claimant’s reliefs on the ground that the defendant’s actions against the claimant are unlawful, untenable, illegal and in violation of claimant’s constitutional rights.

Reacting to the foregoing, counsel to the Defendant, M. Osuji Esq, through the written address filed in opposition formulated a lone issue for determination to wit:

Whether from the facts of this case there is any proof that some of the claimant/applicant’s employees refused to join the defendant/respondent’s union or rather it was the claimant/applicant that never wanted its employees to join the defendant/respondent union, and if so, is it not a trade dispute that can warrant an industrial action?

In arguing the lone issue, counsel submitted that by the Third Schedule, Part B, Item No.13, of the Trade Unions Act, Cap. T14, Laws of the Federation of Nigeria (LFN) 2004, Vol. 15, the jurisdictional ambit of Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) covers junior and intermediate “workers in oil well and natural gas well operations including prospecting, drilling, crude oil and natural gas pipelines including refining, distribution and marketing of natural gas, extraction oil and natural gas and petroleum products including petrol filling station, petroleum tanker drivers, but excluding the construction of oil and gas pipelines.

Counsel then argued that the Claimant admitted that it engages in oilfield services which services is part and parcel of oil well and natural gas well operations and that some of its employees are members of the defendant.

Counsel argued further by referring to Section 54 of the Trade Unions Act, Cap.t14, Laws of the Federation of Nigeria, 2004 which defines a member of trade union to mean a person normally engaged in a trade or industry which the trade union represents and a person either elected or appointed by a trade union to represent workers interest. He then submitted that there is no gainsaying that the said workers of the claimant are engaged in oilfield services in the oil and gas industry.

In addition to the foregoing, counsel cited Section 40 of the 1999 Constitution of the Federal Republic of Nigeria as amended guaranteed every person’s right to assemble freely and associate with other persons to form or belong to any trade union or any other association for the protection of his interest and also Section 9 of the Labour Act which makes it null and void anything done by an employer suggestive that its workers should join or not join a particular trade union.

Counsel added that there is nothing presented to show that certain employees as contended by the Claimant were in fact projections of management who cannot join a trade union and that exhibits NUP3 to NUP12 are all evidence of the difficulties and victimizations that the defendant and some of the employees suffered after the inauguration of the union’s branch in the claimant company.

Counsel cited the case of NESTOIL PLC VS. NUPENG (supra) to content that based on the authority that there is nothing placed before this Honourable Court to suggest that the said employees of the claimant opted out of or refused to join the defendant union as purported.

Counsel argued further that this Honourable Court in the aforesaid case of Nestoil Plc (supra) emphatically stated that no employer is permitted to interfere, no matter how minutely it may be, in the internal affairs and management of a trade union. Counsel added that the claimant by refusing to recognize the formation of the said trade union as shown in exhibits NUP3 to NUP8, and also refusing to deduct check-off dues of as requested in exhibits NUP9 and NUP10, has unduly interfered in the internal running and management of the defendant trade union.

Counsel concluded that it is within the right of a trade union to embark on an industrial action so far as it is done in compliance with the provisions of the law and cited the unreported case of BAKER HUGHES COMPANY LTD. VS. OLABIYI OLATUBOSUN & 5 ORS. SUIT NO. NIC/LA/610/2016.

Counsel urged the court to resolve the lone issue in favour of the defendant and consequently dismiss this matter as unmeritorious with substantial cost.

By way of reply on point of law, counsel to the Claimant identified four points from the written address of the defendant thus:

That a member of a trade union is a person normally engaged in a trade or industry which the trade union represents and all employees of the Claimant voluntarily joined defendant’s union and are therefore members of the defendant – paragraph 4.1.2.

That Section 40 of the 1999 Constitution of the Federal Republic of Nigeria(as amended) guarantees every person’s right to form or join a trade union and Section 9 of the Labour Act makes null and void anything done by an employer suggestive that its workers should join or not join a particular trade union – paragraph 4.1.3.

That by Law, junior staff are deemed members of a union until they opt not be, senior staff are deemed not to be members of a union until they individually and in writing opt to be and there is no evidence before the Court that some of the employees opted out or refused to join the defendant – paragraphs 4.1.4 – 4.1.6

That the termination of the employment of two employees and the defendant’s unionization of claimant’s employees amount to a trade dispute and it was within the right of the defendant to embark on an industrial action so far as it is done in compliance with the provisions of the law – paragraphs 4.1.7 and 4.1.8.

With regards to point one, counsel contended that the mere fact that Section 54 of the Trade Unions Act defines “member of a trade union” as a person normally engaged in a trade or industry which the trade union represents does not automatically make the claimant’s employees members of the defendant. He added that that there is no evidence before this Court to prove that all 22 of claimant’s employees voluntarily joined the defendant and were all inaugurated and on the contrary, 5 of the 11 junior staff of the claimant eligible to join the defendant out-rightly wrote claimant informing the claimant that they are not members of the defendant.

With regards to point two, counsel submitted that an employee’s right to join a trade union is not absolute but is rather subject to the employer’s right to prevent conflict of interest and loyalty in its employees. He cited sections 3(3) & (4) of the Trade Unions Act to contend that Claimant’s employees who have been recognised as projections of management within the claimant’s management cannot join the defendant.

Counsel argued further with regards to the allegation of terminating the employment of two employee as victimization that the evidence before the Court clearly shows that the claimant was not aware of the names of members of the defendant as at the 29^th day of April, 2019 when the employees were terminated as the defendant only disclosed the names of its members to the claimant in its letter dated 16^th May, 2019.

With regards to point three, counsel considered the authority of NESTOIL vs NUPENG (unreported judgment in Suit No. NICN/LA/08/2010 and submitted that from the evidence before the Court, 5 of the 16 junior staff of the claimant individually and in writing opted out of the defendant’s union while another 5 of the 11 left are projections of management and cannot join the defendant, thereby leaving out only 6 of claimant’s junior staff that are members of the defendant.

Counsel added that it is untenable for the defendant to argue as it has done, that the claimant failed to remit the check off dues of its members when the claimant has been doing so since May, 2019 when it received defendant’s demand letter. He also added that it is unlawful for the defendant to demand Check-off Dues of claimant’s staff who are not its members as shown by the evidence before the Court.

With regards to point four, counsel reiterated the argument on meaning of trade dispute and added that Sections 4, 8 and 9 the Trades Dispute Act require that parties resolve their disputes by internal settlement mechanism and mediation, failing which the dispute is to be referred to the Industrial Arbitration Tribunal and finally brought before the National Industrial Court if parties object to the decision of the Industrial Arbitration Tribunal.

He added that the defendant without exhausting the above stipulated dispute resolution mechanisms blocked the claimant’s premises under the guise of picketing when parties were still before the Ministry of Labour and when the matter had not been referred to the Industrial Arbitration Tribunal.

Counsel concluded by urging the court to grant claimant’s reliefs and discountenance defendant’s submissions.

In view of the foregoing arguments, I have taken a careful consideration of the questions raised for determination by this court and the facts deposed to in the affidavit in support and in opposition. I have also taken cognizance of the exhibits annexed to the affidavit in support and opposition of the originating summons and I find that arising from the totality of the issues raised in the written addresses in support and in opposition of the Originating Summons including the reply on point of law and submissions made in furtherance and opposition of same, the sole issue for the determination of this suit is to wit:

Whether or not in view of the facts and evidence before the court, and in view of the answers to the questions raised for the determination of this court, the Claimant is entitled to the reliefs sought.

In resolving the foregoing issue, I find it apposite to start by stating that the resolution of the question before the court centers on the right to freedom of association which is a constitutional provision as enshrined in section 40 of the Constitution of Federal Republic of Nigeria 1999 (as amended). The said section reads thus:

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests”.

The foregoing provision clearly shows that a citizen can choose to belong to a trade union, political party or association of his or her choice and same right has been upheld in a plethora of cases including that of Chukwuma V. C.O.P. (2005) 8 NWLR (Pt. 927) 278 at 287 (CA) where the court held that:

“It is constitutionally provided that every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political, trade union or any other association for the protection of his interests, see section 40 of the 1999 Constitution” Per. Abdullahi JCA.

While the foregoing provision is referring to every person having a right to associate, I must point out that the instant suit is one between a union and a company disputing over membership of certain persons whether or not to be members. The Union is attempting to unionize all the employees of the Company while the company is posting that the Defendant cannot by law unionize all her employees as some are exempted.

It is in the light of the foregoing that it must be said that the association of persons must be within the framework of other laws as section 45 of the Constitution reckons with circumstances where there can be derogation from certain rights guaranteed under the Constitution including right to freedom of association. The court in the same case of Chukwuma V. C.O.P. (2005) (supra) added in this regard that:

“However, it is to be observed that the rights provided supra are not without limitations, hence section 45(1) of the said Constitution provides thus:- 45(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society – (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons.” Per. Abdullahi JCA.

I must also state that while the questions formulated for this court to answer are largely questions of law, same is laced with dispute as to facts which can only be resolved in the light of the depositions made in the affidavits in support and opposition of the Originating summons and upon a perusal of the exhibits annexed.

I also find it apposite to make certain the areas of conflict arising from the said affidavits in other to ascertain the position of the law with regards to the area of conflict. For want of clarity, the Claimant is positing that prior to the presence of the Defendant, it used to have 5 senior Management staff, 6 middle management staff and 16 junior management staff out of which only 6 of their employees are members of the Defendant’s union. Others have either opted out, or refused to join or are not eligible to join. Claimant named four employees who refused to join the Defendant because they are projections of management and cannot join the Defendant. Based on the status of the employees, the Claimant is alleging that the Defendant listed all her 22 employees for check off dues while it is only 6 employees that have maintained to be members of the union and consented for check off dues to be deducted from their salaries. It is on this basis that the Claimant is alleging that the Defendant is forcefully compelling her employees to join their trade union and same has led to an industrial action.

The Defendant in response posited that the four employees named by the Claimant are junior and intermediate workers and they freely joined the Defendant but the Claimant is preventing them freely associating contrary to the provision of the Constitution and the Labour Act. The Defendant added that the Claimant is victimizing employees who have joined their union by terminating the employment of two of such employees and refusing to reinstate them while also refusing to remit check off dues to the union for the members.

It is in the light of the forgoing contention that I find it apposite to evaluate the exhibits annexed to the affidavits before the court. Arising from the affidavit annexed to the affidavit in support of the Originating summons, I find that the Claimant Exhibit A1 and A2 and B1 and B2 are pictures showing the bus of the Defendant and a forklift alleged to have been parked at the Claimant’s premises to disrupt business while exhibit C is the police report on the strike action of 15^th July 2019. Exhibit D is a copy of email written by the Defendant to an officer of the Claimant with regards to the strike action and what has led to it and how it can be resolved.

From the exhibits annexed to the counter affidavit on the other hand, I find that by exhibit NUP1, a letter was written and sent to the Defendant informing the Defendant that the entire workers of the Claimant wishes to join the union of the Defendant. The letter was signed by one Kasi Anokwuru as Chairman and Cyril Ogoloma as Secretary and same was dated the 18^th of April, 2019. Consequent upon the said letter, the Defendant then wrote Exhibit NUP2 (a letter dated 24^th April, 2019) to the Claimant with the intention of inaugurating a branch of the union in the Claimant’s company pursuant to the letter received from the employees. The Claimant wrote back to the Defendant a letter dated 29^th April, 2019, annexed as Exhibit NUP3. Via the letter, the Claimant informed the Defendant that they are not aware of the chairman or secretary whose letter was enclosed but that the Defendant will be contacted for a meeting when consultation was concluded with their staff over who may be interested in joining the union.

In addition, I find that by Exhibit NUP 4, the chairman who signed the letter informing the union of the wish of all the Claimant’s workers to join the Defendant union was issued a termination letter on the 29^th of April 2019 although no reference was made in the letter about trade union activities, it was taken by the Defendant to be the reason for the termination. The said termination was what triggered dispute between the Claimant and the Defendant going by Exhibit NUP5 and NUP 6 which were letters written by the Defendant to the Claimant and to the State Coordinator of the Federal Ministry of Labour and Employment (sic) with attempts to get intervention. After the intervention, I reckon that by Exhibit NUP 9, the Defendant wrote to the Claimant demanding for the check off dues of 22 persons whom the Defendant considered to be members of their union but the Claimant wrote back with Exhibit NUP10 to contend that by section 3 (3) of the Trade Union Act, no staff who is considered as projection of management is permitted to join trade union if doing so will lead to conflict of interest. Claimant also expressed that they have no reservation for junior staff who have opted to join the Defendant. The response did not go well with the Defendant who thought they had all the staff of the Claimant as their member and in reaction the Defendant wrote Exhibit NUP11 dated the 26^th of June, 2019, to the State Coordinator of Federal Ministry of Labour and Employment (sic) to intervene again and the said Ministry wrote Exhibit NUP12 dated the 3^rd July, 2019 inviting the parties for another meeting. While the meeting was scheduled for 17^th July, 2019, the Defendant carried out the strike action on the 15^th of July, 2019.

It was after the Defendant presented the foregoing exhibits that the Claimant through the further affidavit extended the narrative by bringing to fore exhibits G and J which are communiqués signed at the meetings with the Federal Ministry Labour and Employment (sic). The first was signed on 10^th May, 2019 while the other was on 22^nd July, 2019 (a day before the institution of this suit). Claimant also added Exhibit L which are letters written to certain employees to notify them of the deduction of Union dues from their salaries as requested by the Defendant and the replies of the said employees who directed that the said check off should not be deducted as they are not members of the Defendant union.

The foregoing Exhibit depicts a poor appreciation of how the Claimant and the Defendant have handled membership of trade union which the law is clear about and it is on that note that this court shall consider the provisions relevant thereto vis-à-vis the provisions of the law which the Claimant has called into question for interpretation via this originating summons.

In consideration of the first question which is “whether by the provisions of section 43(1) and 54 of the Trade Unions Act (as amended) the refusal of claimant’s employees to join defendant’s union qualifies as a trade dispute to warrant the defendant’s unlawful industrial action against the claimant and blockade of the claimant’s premises”.

In view of the foregoing, it is apposite to state that while section 43(1) makes provision with regards to peaceful picketing, section 54 is the interpretation section and with the focus on the meaning of trade dispute as argued by counsel to the Claimant. The said sections 43(1) and 54 of the Trade Unions Act provide thus:

43(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or registered federation of trade unions or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.

“trade dispute” means any dispute between employers and workers, or between workers and workers, which is connected with the employment or non-employment, or the terms of employment or conditions of work of any person

In view of the foregoing provisions, counsel to the Claimant added section 47 of the Trade Disputes Act which bears the same meaning of trade dispute as that of section 54 of the Trade Unions Act and argued that the disagreement over refusal to join trade union does not qualify as a trade dispute.

In resolving the foregoing question, I reckon that the court in the case of A.-G., Oyo State v. N.L.C. [2003] 8 NWLR (Pt.821)pg. 1 restated the position of the law to the effect that:

“For a dispute to be declared a trade dispute within the meaning of section 47 of the Trade Dispute Act, Cap. 432, Laws of the Federation of Nigeria, 1990, the following ingredients must be present –

1) There must be a dispute , 2) The dispute must involve a trade, 3) The dispute must be between

(a) Employers and workers, (b) Workers and workers

4) The dispute must be connected with – (1) The employment or non-employment, (2) The terms of employment, (3) Physical condition of work or any person.” Per ADEKEYE, J.C.A.(Pp. 27-28, Paras. E-B)

In the instant case, the exhibits tendered by the Defendant particularly Exhibits NUP1 which the staff of the Claimant used to indicate interest of himself as chairman and that of other employees to join the Defendant union; exhibit NUP 4 which is the termination of the employment of the said chairman which gave the impression of victimization for union activities are manifestation of a dispute. The dispute is also in respect of the trade in petroleum which is the business of the Claimant and same is between the Claimant and the defendant representing the employees of the Claimant whose employment were terminated and have desire to join a trade union while the trade dispute was in relation to the employment of members of staff of the Claimant for fear of victimization based on their right to join trade union.

The relationship between section 43 and 54 of the Trade Unions Act is that in an attempt to resolve a trade dispute, persons can on their own behalf or on behalf of a union attend their place of work merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.

In the light of the foregoing, I must state clearly that arising from the exhibits before this court, the only hint of refusal of Claimant’s employees to join the Defendant union is the notice of disapproval to deduct check off dues issued by 5 of the Claimant’s employees when notified of the request for check off dues by the Defendant. The refusal is not in itself a dispute between the Claimant and her employees. However, the Defendant’s position that dispute arose because some of the Claimant’s employees were victimized for joining the union and same is a dispute arising from the condition of work is more tenable and considered to be what led to trade dispute in the instant suit.

Consequently, the first question is answered to the effect that there was indeed a trade dispute within the provision of section 54 of the Trade Unions Act to warrant an industrial action by the members of the union of the Defendant who are employees of the Claimant.

While it is settled that in view of the existence of a trade dispute, there can be industrial action by way of strike and picketing, the second and third questions formulated by the Claimant deals with the way and manner the industrial action was carried out. The questions read thus:

Whether by the provisions of Section 43(1A) of the Trade Unions Act (as amended) the defendant can lawfully block the entrance and exit to the claimant’s premises since the 15^th of July, 2019 and thereby refuse Claimant’s staff, management and business associates right of access to the claimant’s premises, and force them to stay at home; and

Whether by the provisions of Section 43(1B) of the Trade Unions Act (as amended) the defendant can lawfully coerce and force claimant’s employees who are not members of the defendant to join the defendant’s unlawful industrial action.

In consideration of these questions, I have earlier reproduced the provision of section 43(1) which provides that peaceful picketing is allowed to press home persuasion to work or abstain from work, however, section 43(1) (A) and (B) provides an addendum on how the persuasion must be done. The said section 43(1)(A) provides thus:

(A)No person shall subject any other person to any kind of constraint or restriction of this personal freedom in the course of persuasion

(B)No trade union or registered Federation of Trade Unions or any member thereof shall in the course of any strike action compel any person who is not a member of its union to join any strike or in any manner whatsoever, prevent aircrafts from flying or obstruct public highways, institutions or premises of any kind of the purposes of giving effect to the strike.

In the light the foregoing provision, the words are clear and unambiguous and require no other form of interpretation other than the literal interpretation whereby the ordinary meaning are to be adopted. In this regard, the court in A-G OF FEDERATION v. A-G OF LAGOS STATE (2013) LPELR-20974(SC) held that:

“It is trite that in the interpretation of statutes, the constitution and like matters, words must be given their natural and ordinary meaning. There are numerous legal authorities on this subject matter. In WAHAB AIGHOTOSHO SIFUOLA OLANREWAJU v. THE GOVERNOR OF OYO STATE (1992) NWLR (PART 265) 335 this court per Karibi-Whyte, JSC said – It is well settled that where the words of a statute are clear and unambiguous, the ordinary meaning of the words are to be adopted. See also FRED EGBE v. M. D. YUSUF (1992) NWLR (PART 245) 7, ALL NLR 62; YEROKUN v. ADELEKE (1960) 5 FSC 126; AHMED v. KASSIM (1958) 3 FSC 51; SHUAIBU ABDULKADRIM v. INCAR (NIGERIA) LTD (1992) NWLR (PART 251) 1; NAFIU v. THE STATE (1981) N.C.L.R. 293 at 326.” Per ALAGOA, J.S.C. (Pp. 175-176, paras. E-B).

The effect of the provisions of section 43(1)(A) and (B) is that the Defendant trade union is not to constrain anyone from entering its business premises in the course of strike and industrial action.

In the instant case, the Claimant by Exhibits A1, A2, B1 and B2 made attempt to establish the fact that the Defendant parked its bus to deny the right of ingress while one of its members who is an employee parked a forklift from inside the Claimant’s premises to deny the right of egress from the premises contrary to the provisions of section 43 of the Trade Unions Act.

I am not oblivious of the denial by the Defendant that it is not true that in carrying out its industrial action, they blocked “completely” the entrance and exit of the premises of the Claimant with any vehicle whatsoever and refused to remove same and added that the industrial action was called off on the 22^nd of July, 2019 without any adverse effect on the business of the Claimant.

Upon the foregoing, I have taken a careful look at exhibits A1, A2, B1 and B2 and find rightly so that a bus bearing the name of the Defendant was parked in front of a premises and also find a forklift which placed a container in front of the gate of the said premises. I also reckon exhibit C which is the police report in respect of the incidence. The report is dated 19^th of July, 2019.

Consequent upon the foregoing, it is clear that the Claimant has established that the Defendant indeed barricaded the business premises of the Claimant in the course of the strike action contrary to the provision of the law and in that light, question two and three are answered to the effect that by virtue of sections 43(1) (a) and (B) of the Trade Unions Act, the Defendant cannot block the entrance and exit of the Claimant’s premises nor coerce persons who are not members of their Union to join in the Defendant’s industrial action.

Question four is predicated on the answer proffered for questions two and three. The said question four reads:

whether the defendant’s action in denying Claimant’s staff, management and business associates right of access to the claimant’s premises, and forcing them to stay at home is not a violation of their right to personal liberty and right to freedom of movement enshrined in Sections 35 and 41 of the 1999 Constitution (as amended).

There is no gainsaying that the Constitution of Federal Republic of Nigeria 1999 (as amended) provides for right to personal liberty and freedom of movement as enshrined in sections 35 and 41 of the said Constitution.

Although the rights are not absolute, they are only to be curtailed in deserving circumstances as stipulated by the same Constitution and other statutes. See the case of AG & COMMISSIONER OF JUSTICE, KEBBI STATE v. JOKOLO & ORS (2013) LPELR-22349(CA).

In the instant case, the exhibits before the court establishes the fact that the Defendants acted outside the purview of the law in barricading the premises of the Claimant and thereby preventing the right to freedom of movement into and out of the premises. Consequently, question four is answered to the effect that the Defendant’s action in blocking the Claimant’s premises while carrying out industrial action was in violation of the right to personal liberty and right to freedom of movement as enshrined in sections 35 and 41 of the Constitution of Federal Republic of Nigeria 1999 (as amended).

In the light of the forgoing, it is expedient to determine which of the reliefs sought by the Claimant is grantable as the said reliefs are predominantly declaratory reliefs which the courts have posited to the effect that they are grantable not just at the discretion of the court but on cogent and convincing evidence notwithstanding the weakness of the case of the Defendant. see the case of IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) (P. 22, para. A) and DIAMOND BANK PLC. V. YAHAYA & ANOR. (2011) LPELR-4036(CA) (P. 27, paras. B-D).

The court in the case of NABORE PROPERTIES LTD v. PEACE-COVER NIGERIA LTD & ORS (2014) LPELR-22586(CA) posited on the nature of Declaratory relief that:

“A claim for a declaratory relief is an invitation to the Court to make a pronouncement as to the legal position of a state of affairs”. Per IYIZOBA, J.C.A. (Pp. 30-31, paras. E-D)

It is consequent upon the forgoing authorities that the reliefs sought are considered.

Relief one is for “a Declaration that the defendant’s unlawful industrial action against the Claimant is not in contemplation or furtherance of a trade dispute as provided for under Sections 43 and 54 of the Trade Unions [Amendment] Act, 2005”.

This court upon the evaluation of the facts and evidence before the court found that the members of the Defendant have the right to carry out industrial action and same was done pursuant to a trade dispute existing between the parties. Consequently, Claimant is not entitled to relief one and same is accordingly refused.

Relief two is for “a declaration that the defendant’s unlawful action in blocking the entrance and exit to the claimant’s premises since 15^thof July, 2019, thereby depriving Claimant’s staff, management and business associates right of access to the premises is contrary of Section 43(1)(a) of the Trade Unions Act (as amended)”.

With regards to the said relief, while this court has found that the Defendant’s action in barricading the Claimant’s premises was in violation of the law, I must point out that the said barricade has been lifted since 22^nd of July, 2019 when the Defendant agreed to suspend the industrial action via the communiqué annexed as exhibit J to the Claimant’s further affidavit and signed by both parties. Therefore, the use of the word ‘since’ to portray the continuance of the act is untenable in view of the fact that this suit was instituted on the 23^rd of July, 2019 which is a day after the communiqué was signed.

Barring the use of the word ‘since’, the said relief is meritorious and same is granted to the effect that this court makes a declaration that the defendant’s unlawful action in blocking the entrance and exit to the claimant’s premises between the 15^thto 22^nd of July, 2019, thereby depriving Claimant’s staff, management and business associates right of access to the premises is contrary of Section 43(1)(a) of the Trade Unions Act (as amended).

Relief three is “a declaration that the defendant’s unlawful action in coercing and forcing claimant’s employees who are not members of the defendant to join the defendant’s unlawful industrial action is contrary to Section 43(1)(b) of the Trade Unions [Amendment] Act, 2005.

The said relief is sought pursuant to question three which this court answered in the negative to the effect that by the provision of section 43(1) (B) of the Trade Unions Act, the Defendant cannot coerce or force persons who are not members of the union to join in the strike action.

That notwithstanding, it must be said that there is no proof of coercion or force whatsoever applied on any person directly with regards to the strike action. The fact that the strike action affected business of the Claimant does not in itself suggest coercion and cannot conclusively be held as such. Consequently, there is no convincing proof that the Defendant coerced or forced anyone to join in the strike action and the said declaration is accordingly refused.

Relief four is for “a declaration that the defendant’s acts in coercing and forcing Claimant’s employees who are not its members to join the defendant’s union is a violation of the defendant’s employees’ rights to freedom of assembly and association enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria and therefore unlawful, untenable, illegal, void and of no effect whatsoever.

With regards to the said relief, two position of the law are relevant, the first is the constitutional provision which guarantees right to freedom of association which is the bedrock upon which the right to freely join a trade union is vested. I have earlier mentioned that the right is not absolute as the provisions of other laws must be read in conjunction and in consonance with the Constitution. see sections 40 and 45 of CFRN.

One of such statute that qualifies the freedom of association and which is relevant to this suit is the Trade Unions Act. The Act by its 2005 amendment added subsection (4) to its section 12 which for the sake of clarity reads thus:

12(4) Notwithstanding anything to the contrary in this Act, 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.

The foregoing provision speaks directly to the circumstance of this case whereby the Claimant is alleging that the Defendant listed all her staff as members of the Union whereas it is only the junior staff that are eligible to be members while the Defendant is also contending that the Claimant is victimizing her employees for joining the Defendant’s Union.

In the light of the provision, it must be clear that the freedom ascribed to persons to join a trade union under the constitution is expected to be voluntarily exercised. The exercised is best expressed in writing and ought to be brought to the notice of both the employer and the Union.

I reckon that in the instant case, the Defendant contended that the employees of the Claimant wrote Exhibit NUP1 to indicate their wish to join the Defendant’s trade union. The letter was signed by a chairman and a secretary. The rhetorical questions which the letter raises are (i) how did the person who wrote the letter and signed as chairman obtain the consent of all the employees of the Claimant to write on their behalf and to indicate their wish to join a trade union. (ii) how did the said chairman become a chairman of a membership group or branch that is not yet in existence having not been inaugurated. (iii) did the employees who opted to join the trade union notify the Claimant of their interest to join the union and same was refused and if so, where is the evidence of such indication by each of the employees.

With regards to Exhibit NUP1, I must posit that the court has frowned at the style of union attempting to gain membership using such letter. This was done in the case of NUPENG V MARITIME WORKERS UNION OF NIGERIA (MWUN) (2015) 61 NLLR (PT.214) 404 at 461. The case was to decide which of the two unions have jurisdiction under the Extant laws to unionize the employees of GAC Manning Services. The court with respect to whether junior staff can on their own opt for a union held inter allia that:

“So when NUPENG wrote to the General Manager of GAC-GMS Nig. Ltd. Vide Exhibit G dated 15^th October, 2012 informing him of the formation of a branch of NUPENG ‘after the workers voluntarily applied to join the union in accordance with the Trade Unions Act, 2005, this was most certainly wrong, illegal, null and void and of no effect whatsoever. Junior workers cannot on their own opt for a union; and senior staff can only opt for a senior staff union…”

In view of the foregoing authority, I reckon the fact that counsel to the Defendant cited the unreported case of Nestle Oil Plc v NUPENG where the court posited that as far as our laws are concerned, junior staff are deemed to be members of a trade union until they individually and in writing opt not to be.

The said decision I must state is not of a binding capacity as it is one delivered by a court of coordinate jurisdiction. Moreso, the position with respect, is a negation of the express provision of the Trade Unions Act under section 12(4) which makes the membership of a trade union personal and voluntary.

In addition, the position of deeming junior staff a members of a union was prior to the amendment made to the Trade union Act in the year 2005. See NUSDE v SEWUN (2013) 35 NLLR (Pt. 106) 516 -696 at 620.

It must also be stated that eligibility as stated in section 12(1) of the Trade Unions Act is different from membership and in that light it must be reckoned that the intention of the law in creating jurisdictional scope is to determine who is merely eligible but not to compel membership. The word ‘voluntary’ according to Oxford Advanced learners Dictionary, 8^th Edition, at page 1664 is “done willingly, not because you are forced”. Therefore, the word ‘voluntary’ can only be ascribed to membership not eligibility. Consequently, voluntary membership must be personal and individually expressed same way the resignation from union cannot be collective but individual. See NUSDE v SEWUN (2013) (supra).

I must also add that I am not oblivious of the provision of item No13, Part B, Third Schedule to the Trade Unions Act which defines the Union of the Defendant thus:

“Workers in 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, but excluding the construction of oil and gas pipelines.”

Counsel to the Defendant based on the foregoing also contended that a member of a trade union according to section 54 of the Trade Unions Act means a person who is normally engaged in a trade or industry which the trade union represents.

I must also state that the contention is of no moment as the meaning is merely an expression of persons who are eligible to join the union and the jurisdictional scope of the Union itself but nothing more. The contention therefore lacks merit in view of the absence of the voluntary expression by the employees of the Claimant to join the Defendant’s union and I say this bearing in mind the inadequacy of Exhibit NUP1 in expressing the said voluntariness.

On the part of the Claimant, I reckon that the Claimant contended that some of her employees are projection of management and cannot join the trade union of the Defendant.

By the provision of the law, i.e. section 3(3) and(4) of the Trade Unions Act, the Claimant is contending that certain members of her staff is a projection of management and in that light cannot join the Defendant as the membership of such person will bring about conflict of interest.

The said sections for the sake of clarity provides thus:

(3)No staff recognised as a projection of management within the management structure of any organisation shall be a member of or hold office in a trade union (whether or not the members of that trade union are workers of a rank junior, equal or higher than his own) if such membership or of the holding of such office in the trade union will lead to a conflict of his loyalties to either the union or to the management.

(4)For the purposes of subsection (3) of this section, a person may be recognised as a projection of management within a management structure if his status, authority, powers, duties and accountability which are reflected in his conditions of service are such as normally inhere in a person exercising executive authority (whether or not delegated) within the organisation concerned.

Upon a careful consideration of the said provision, counsel to the Claimant is right in that the essence of the provision is to avoid conflict of interest. However, the provision is not clear as to who should carry out the evaluation to ascertain whether a staff is indeed a projection of management and the Claimant is not precluded from exercising the discretion as done in the instance case to state that the Defendant cannot unionize some of her staff whom are considered as projection of management.

On the part of the Claimant in contending that the Defendant is coercing and forcing the Claimant’s employees who are not its members to join the Defendant’s union, I reckon that this notion is held also in view of the contention over the deduction of check off dues as some employees wrote to the Claimant declining approval for the deduction of check off dues.

I must state that the Defendant ought to have obtained an individual expression of voluntariness to be a member of the Defendant’s trade union and same will be the basis for demand of check-off dues to be deducted from each employee’s salary. It must be added that in the case of those who are already members, the law also allows them to choose whether they will remain members or not at any time and their choices must be respected.

In view of all the foregoing, relief four is granted to the extent that this Court makes a declaration that the act of the Defendant in demanding for check off dues on persons whom their membership of the Defendant’s union was not personally and voluntarily obtained is unlawful.

Relief 5 is for a “declaration that the defendant lacks the right to exercise authority outside its constitutionally recognised powers and cannot exercise rights over employees of the Claimant who are non-members of its union”.

In view of the said relief, it is trite that the Constitution of Federal Republic of Nigeria is Supreme with its provisions binding on all authorities and persons. Consequently, relief five when considered in the light of the provision of section 40 and 45 of the Constitution, sections 3(3) and (4), 12(1) – (4) and 12(4) of the Trade Unions Act which have been considered above and in view of the finding of this court with regards to relief four, this court faces no hesitation in granting relief five and in that light makes a declaration that the defendant lacks the right to exercise authority outside its constitutionally recognised powers and cannot exercise rights over employees of the Claimant who are non-members of its union.

Relief six is for “a Declaration that the defendant is not entitled to embark on any industrial or strike action against the Claimant in respect of any matter not within the ambit of the provisions of the Trade Unions [Amendment] Act, 2005.

The basis upon which this claim is made is the determination of question one of which this court answered to the effect that the dispute upon which the Defendant embarked on an industrial action is a trade dispute which it lawfully has right to embark upon. Consequently, in view of the issues raised and resolved in relation to question one, reliefs six is without merit and same is accordingly refused.

Relief seven is for an order of mandatory injunction compelling the defendant, its members and privies to immediately remove the defendant’s bus and claimant’s forklift with which it blocked the claimant’s gate, and desist forthwith from unlawfully blocking ingress and egress of claimant’s premises.

In view of the fact that the said order is for a mandatory order of an act which must be carried out, I must state that I have earlier pointed out that although the act of the Defendant in barricading the Claimant’s premises was unlawful, the act has ceased to exist since the 22^nd of July 2019 and there is no evidence before the court that the bus of the Defendant is still packed in front of the Claimant’s premises. The said order is spent and needless and same is according dismissed.

Relief eight is however considerable in view of the fact that it is a restraining order. The relief is for an order of perpetual injunction restraining the defendant from further disrupting the business activities of the claimant by blocking the entrance and exit to the claimant’s premises and thereby restricting the freedom of movement of claimant’s employees, management and business associates.

In view of the provisions of section 43(1)(A) and (B) which stipulates how peaceful picketing and strike actions must be carried out by a Trade Union, and in view of the fact that the Defendant breached the said provision in the industrial action carried out in the premises of the Claimant, I find it worthy of consideration to grant the said restraining order against the Defendant and the said relief eight is granted as prayed.

In the final analysis, the sole issue formulated is resolved partly in favour of the Claimant in view of the extent to which reliefs 2, 4,5, and 8 have been granted.

The case of the Claimant is considered meritorious partly in the extent to which the reliefs have been granted and the part of which the reliefs fails are accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.