IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: 10 MARCH 2022 SUIT NO. NICN/ABJ/39/2021
BETWEEN
Senior Staff Association of Statutory Corporations
and Government Owned Companies (SSASCGOC) - Claimant
AND
1. Hon. Minister of Labour
2. National Identity Management Commission (NIMC)
3. Association of Senior Civil Servants of Nigeria - Defendants
REPRESENTATION
Christopher Oshomegie, with Miss Stellamaris Obiora and Miss Oyindamola Bamidele, for the claimant.
Ajayi Olowo, for the 2nd defendant.
Johnson O. Esezoobo, for the 3rd defendant.
No legal representation for the 1st defendant.
JUDGMENT
INTRODUCTION
1. The claimant, a registered trade union, is of the belief that it has jurisdictional scope over the senior staff of the 2nd defendant in virtue of the 1999 Constitution, the Trade Unions Act Cap T14 and the National Identity Management Commission (NIMC) Act 2007. The claimant also believes that it has been unlawfully denied its rights and entitlement to unionize the senior staff of the 2nd defendant, which denial arose from an unlawful letter from the 1st defendant and a Memo to the effect by the 2nd defendant. By the unlawful letter and Memo, the claimant was denied its check-off dues from the senior staff of the 2nd defendant. Instead, the senior staff of the 2nd defendant have been made to illegally pay same to a trade union they do not belong to i.e. the Association of Senior Civil Servants of Nigeria. To the claimant, all its efforts to make the 1st and 2nd defendants to toe the part of law proved abortive, hence this suit commenced on 5 February 2021 vide an originating summons.
2. The claimant accordingly seeks the determination of the following questions:
(1) Whether having regard to Sections 1, 2, 3, 7, 8, 9, 32(3), (6) of the National Identity Management Agency Commission Act, 2007 (NIMC) (hereinafter referred to as the NIMC Act – EXHIBIT OOC18 herein), THE NIMC PERSONNEL POLICIES (Employment Guideline – EXHIBIT OOC17 herein) paragraphs 2.2, 5, 7, 8.2, 8.2.1 at pages 2, 11, 12, 17 and 20 of the said Exhibit OOC17 and section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 (As amended) ( hereinafter referred to as the 1999 Constitution), are the senior staff of the 2nd defendant not Public Servants as distinct from Civil Servants vide the Exhibit OOC18, EXHIBIT OOC17 and the 1999 Constitution.
(2) Whether having regard to Sections 1, 2, 3, 8, 9, 32(3) and (6) of EXHIBIT OOC18 is there any staff of the 2nd defendant upon the coming into effect of EXHIBIT OOC18 that is a Civil Servant? Put differently, is section 32(3) of EXHIBIT OOC18 not a clear statement that there are no Civil Servant in 2nd defendant?
(3) Whether if the answer to question 2 above is in the affirmative can the Senior Staff of the 2nd defendant pay or cause to pay their check off due to the Association of Senior Civil Servants of Nigeria?
(4) Whether having regard to Sections 5(7), 17, 34(3), of the Trade Union Act Cap T.14 LFN 2004, Exhibits OOC21, OOC22, and OOC23, Sections 7, 8, 9, 32(3) and (6) of EXHIBIT OOC18 is the claimant not the only body statutorily recognized with unionizing jurisdiction of the Senior Staff of the 2nd defendant and to whom alone the 2nd defendant’s Senior Staff shall pay their check off due.
(5) Whether having regard to Section 318(1) of the 1999 Constitution, sections 5(7), 17, 34(3), EXTRAORDINARY GAZETTE NO. 6 OF THE FEDERAL REPUBLIC OF NIGERIA 1978, EXHIBIT OOC21, OOC22 and OOC23, Sections 1, 2, 3, 4 and 5 of the 1999 Constitution, can the Minister of Labour or the Ministry of Labour assume a Legislative toga that can amend the Trade Union Act, and EXHIBIT OOC18 suo motu without recourse to the National Assembly. Put differently, is the directive by the 1st defendant contained in Exhibit OOC9 and Exhibit OOC13 of the 2nd defendant not a Legislative Act that purports to amend the Trade Union Act Cap. T.14, EXHIBIT OOC18 and the 1999 Constitution.
(6) If the answer to the above is in the negative, is EXHIBITS OOC9 and OOC13 not liable to be set aside and be so set aside inclusive of the directives contained therein — the directives by the 1st defendant contained in EXHIBIT OOC9 that the Association of Senior Civil Servants of Nigeria should be the one to unionize the Senior Staff of the 2nd Defendant not a violation of the said Trade Union Act and EXHIBIT OOC18 being unlawful, illegal as it is ultra vires the defendants.
(7) Whether having regard to all of the above, is the claimant not entitled to be refunded and reimbursed with the sum of N47,956,424.16 (Forty Seven Million, Nine Hundred and Fifty Six Thousand, Four Hundred and Twenty Four Naira, Sixteen Kobo) being check off due which was erroneously and unlawful paid to the Association of Senior Civil Servants at the instance of the 1st and 2nd defendant.
3. The claimant then prayed for the following reliefs:
(1) A DECLARATION that vide Sections 1, 2, 3, 7, 8, 9, 32(3), (6) of the National Identity Management Agency Commission Act, 2007 (NIMC) (hereinafter referred to as the NIMC Act – EXHIBIT OOC18 herein) – THE NIMC PERSONNEL POLICIES (Employment Guideline – EXHIBIT OOC17 herein) paragraphs 2.2, 5, 7, 8.2, 8.2.1 at pages 2, 11, 12, 17 and 20 of the said Exhibit OOC17 and section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 (As amended) the senior staff of the 2nd Defendant are not Civil Servants but Public Servants.
(2) A DECLARATION that vide sections 1, 2, 3, 8, 9, 32(3) and (6) of EXHIBIT OOC18 no Civil Servant exists in 2nd Defendant upon the coming into effect of the Exhibit OOC18.
(3) A DECLARATION that the Senior Staff of 2nd Defendant being Public Servants and not Civil Servants cannot and should not pay their check off due to the Association of Senior Civil Servants of Nigeria.
(4) A DECLARATION that by virtue of Sections 5(7), 17, 34(3), of the Trade Union Act Cap T.14 LFN 2004, Exhibits OOC21, OOC22 and OOC23, Sections 7, 8, 9 32(3) and (6) of EXHIBIT OOC18 and the 3rd Schedule of Trade Union Act, 2004, the Claimant is the only body statutorily recognized with unionizing jurisdiction over the Senior Staff of the 2nd defendant and to whom alone the 2nd defendant’s Senior Staff pay their check off dues.
(5) A DECLARATION that vide Sections 1, 2, 3, 4, and 5 of the 1999 Constitution, the Minister of Labour dues not posses Legislative vires to amend any law, statute however whatsoever wherefore EXHIBITS OOC9 and OOC13 are in violation of the EXHIBIT OOC18 the Trade Union Act, 2004 and the 1999 Constitution and so be set aside and are set aside.
(6) A MANDATORY ORDER directing the 1st and 2nd defendants to immediately refund and reimburse the Claimant with the sum of N47,956,424.16 (Forty Seven Million, Nine Hundred and Fifty Six Thousand, Four Hundred and Twenty Four Naira, Sixteen Kobo) being monies unlawfully and erroneously paid to the Association of Senior Civil Servants of Nigeria instead of the Claimant at the instance of the 1st and 2nd defendants.
(7) Exemplary damages as this Honourable Court may deem fit to grant as if same has been applied for.
(8) Five Million Naira being cost of litigation.
4. The 2nd and 3rd defendants reacted by each filing a preliminary objection before addressing the merit of the originating summons.
5. The 1st defendant did not enter appearance or file any defence process.
6. The preliminary objections and the originating summons were moved on 26 January 2022 and the Court adjourned for judgment. Despite that the preliminary objections and the originating summons were moved together, in considering all the processes, I shall take the preliminary objections first. I shall explain the reason for adopting this procedure in the decision part of the judgment below.
THE 2ND DEFENDANT’S PRELIMINARY OBJECTION
The Submissions of the 2nd Defendant
7. The 2nd defendant’s preliminary objection is brought pursuant to Order 15 Rule 5 of the National Industrial Court Rules 2017 and under the inherent jurisdiction of the Court. In support of the preliminary objection is a 5-paragraphed affidavit. The grounds of the objection are:
(1) The suit filed by the claimant is a trade dispute meant for the trade dispute resolution process under Part I of the Trade Disputes Act Cap. T8.
(2) The suit as currently placed before this Honourable Court is in pari materia with Suit No. NICN/ABJ/46/2018 in which this Honourable Court had declined jurisdiction in its judgment of 15th March, 2019.
8. To the 2nd defendant, it is apparent on the face of the processes filed by the claimant, and placed before the Court that the fulcrum of the reliefs sought is in pari materia with those in Suit No. NICN/ABJ/46/2018 in which this Court declined jurisdiction in its judgment of 15 March 2019. That as could be distilled from the claimant’s originating summons and the affidavit in support, the fulcrum of the grouse of the claimant is that it (the claimant) should be the labour union in which the senior civil servants in the employment of the 2nd defendant should belong. That from the originating summons, the claimant is seeking an order of court that the 2nd defendant should pay all the outstanding check-off dues of the senior civil servants in the employment of the 2nd defendant to the claimant.
9. The 2nd defendant then submitted two issues for determination, namely:
(1) Whether the jurisdiction of this Honourable Court could be invoked by the claimant on its reliefs that are primarily for trade dispute resolution process.
(2) Whether the present suit before this Honourable Court is not an abuse of court process.
10. Regarding issue (1), the 2nd defendant answered in the negative i.e. that the jurisdiction of this Court cannot be invoked on the reliefs sought by the claimant, which are required to be submitted to the trade dispute resolution process under Part 1 of the Trade Disputes Act (TDA), citing section 2 in Part I of the TDA, which provides thus:
2. Exclusion of courts
Subject to the provisions of subsection (3) of section 21 of this Act, no person shall commence an action, the subject matter of a trade dispute or any intra or intra union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void.
That it is on the basis of this provision that this Court declined jurisdiction in the judgment of 15 March 2019 in Suit No. NICN/ABJ/46/2018 in which the reliefs sought are on all fours with those of this Suit No. NICN/ABJ/39/2021 as currently placed before the Court.
11. To the 2nd defendant, since the issues raised in the current suit are predicated on a trade dispute, it is imperative that the claimant should have submitted to the trade dispute resolution processes under Part I section 2 of the Trade Disputes Act. That the claimant having not toed the path of the due process of the law, the Court should note that its jurisdiction cannot be invoked for adjudication on the claimant's originating summons as currently placed before the Court. The 2nd defendant then urged the Court to decline jurisdiction as appropriate.
12. For issue (2), whether this suit is not an abuse of court process, the 2nd defendant answered in the affirmative; and so the precious time of the Court should not be wasted on the merit of the suit. That the fulcrum of the reliefs sought in this Suit No. NICN/ABJ/39/2021 constitutes an abuse of the processes of this Court, as the same is largely ‘on all fours’ with that of Suit NICN/ABJ/46/2018, the judgment of which is in Exhibit A in paragraph 3(a) of the affidavit in support of this preliminary objection, which was struck out by this Court for lack of jurisdiction on 15 March 2019. That going by Saraki v Kotoye [1992] 9 NWLR (Pt. 264) 156 at 188 – 189 and Ogoejeofo v Ogoejeofo [2006] 3 NWLR (Pt. 966) 205 at 220; [2006] 1 SC (Pt. 10) 157, what the claimant has done is an improper exercise of its rights under the law and such constitutes an abuse of the processes of this Court, urging g the Court to so hold.
13. That in the instant case, since the reliefs sought in this Suit No. NICN/ABJ/39/2021 is largely one and the same, based on the same facts, incidents, period, and parties, as those in Suit No. NICN/ABJ/46/2018, which was struck out for lack of jurisdiction by this Court per Hon. Justice E. N. Agbakoba, on 15 March 2019, the originating summons of the claimant as currently placed before this Court constitutes a gross abuse of the process of the Court, urging the Court to so hold. Furthermore, that on the strength of Dingyadi v. INEC [2011] LPELR-950(SC), the instant suit is liable, not just to be struck out, BUT to be dismissed having been an abuse of court process. The 2nd defendant accordingly concluded by urging the Court not just to decline jurisdiction but to invoke its coercive power to punish the claimant as appropriate by dismissing the originating summons of the claimant as currently placed before the Court.
The Submissions of the Claimant in Opposition to the 2nd Defendant’s Preliminary Objection
14. To the claimant, the objection of the 2nd defendant is misconceived having been raised without recourse to the superior provisions of sections 1(1) and (3); 6(6)(b) and 254C of the 1999 Constitution. As such, the objection should be dismissed, same being a misconception of the concept of the jurisdiction of this Court.
15. The claimant then submitted a sole issue for determination, namely: whether this Honourable Court ought not to dismiss the application of the 2nd defendant/applicant. The claimant answered in the affirmative. The claimant referred to paragraph 3(a) to (g) of its counter-affidavit to the 2nd defendant’s preliminary objection, and submitted that the subject matter of this suit is entirely different from that in NICN/ABJ/46/2018; and assuming without conceding that there is any shred of similarity between that suit and this instant suit, the striking out of same has not laid the subject matter of the suit to rest and same cannot function as estoppel to the instant suit. That it is also reflected therein that contrary to the provisions of the Trade Unions Act, this Court has the vires to entertain this suit as presently constituted especially having regard to the extant constitutional provisions.
16. Citing section 1(1) and (3) of the 1999 Constitution as to the supremacy of the Constitution over all other laws, and case law authorities like FRN v. Osahon [2006] All FWLR (Pt. 312) 1975, NUEE v. BPE [2010] All FWLR (Pt. 525) 201 at 239 – 240 and Nuhu v. Ogele [2004] FWLR (Pt. 193) 362 at 379, the claimant submitted that to think or to hold that section 2 of the Trade Unions Act ousts the jurisdiction of this Court or restrict/limit the jurisdiction of this Court in the face of section 254C of the Constitution will amount to “a legal apostasy”. And that to talk of section 2 of the Trade Unions Act or to even countenance it in the face of section 254C of the 1999 Constitution will amount to subjecting the Constitution to judicial indignity, citing Tanko v. State [2009] All FWLR (Pt. 456) 1977; [2009] 4 NWLR (Pt. 1131) 430. That the Legislature cannot enact any Act, Law, Statute etc that is contrary to what the Constitution postulates. The Executive cannot implement, administer and/or execute anything at all that is contrary to what the Constitution postulates. The Judiciary cannot give any interpretation of any Act, Statute and/or Enactment or make any order however whatsoever that contravenes any of the provision(s) of the 1999 Constitution. Thus, any such ultra vires act however whatsoever is null, void and of no effect, citing Lafia Local Government v. Executive Govt, Nasarawa State & ors [2012] 17 NWLR (Pt. 1328) 94 and Madumere & anor v. Okwara & anor [2012] 12 NWLR (Pt. 1368) 303. That put differently, the summary of these decisions t is that whereas the validity of every other law or enactment in Nigeria is determined by the1999 Constitution, the validity of the 1999 Constitution cannot be determined by any other law or at all.
17. To the claimant, the objection of the 2nd defendant is that the claimant herein lacks the right to approach this Court to ventilate this trade dispute. It is thus the claimant’s submission that this right is guaranteed for the claimant by virtue of section 6(6)(b) of the 1999 Constitution, and more specifically section 254C(1)(a) - (b) of the Constitution. Accordingly, that this Court has all the constitutional backing to adjudicate on this trade dispute that has erupted between the parties herein. That from the first issue of the 2nd defendant’s objection, the substratum of the said issue is that Part I of the Trade Disputes Act is superior to sections 1(1) and (3), 6(6)(b) and 254C of the 1999 Constitution. That it will amount to judicial apostasy to subject the Constitution to a subordinate legislation having regard to the supremacy of the 1999 Constitution and plethora of judicial authorities in support thereof as cited earlier.
18. Without much ado, it is the claimant’s submission that this said Part I of the Trade Disputes Act that purports to exclude and/or oust this Court from adjudicating on trade disputes is inconsistent with sections 1(1) and (3), 6(6)(b) and 254C of the 1999 Constitution and is consequently null, void and of no effect. Thus, this Court ought not to be guided by a nullity, citing AG, Ondo State v. AG, Federation [2002] FWLR (Pt. 111) 1972 SC. That the claimant’s right to commence this suit before this Court is pursuant to section 6(6)(b) and 254C(1)(a) and (b) of the 1999 Constitution. Thus the 2nd defendant’s quest to dispute same by his objection ought not to be countenanced by this Court, urging the Court to so hold.
19. The 2nd defendant had also submitted that the subject matter of the suit in NICN/ABJ/46/2018, which was struck out, is on all fours with the subject matter of the instant suit i.e NICN/ABJ/39/2021. He further submitted that the said striking out has determined the facts in issue herein. To the claimant, having regard to paragraph 3(a)(i) - (vi) of the claimant’s counter-affidavit and the legal effect of an action struck out, the submission of the 2nd defendant is misconceived, citing Ajijola v. Rasaki [2019] All FWLR (Pt. 1014) at 80 SC, Chief Ozo Nwankwo Alor & anor v. Christopher Ngene & ors [2007] LPELR-431(SC), Ohakim v. Agbaso [2010] 19 NWLR 172, PWT (Nig) Ltd v. J. B. O. Int’l [2010] 19 NWLR (Pt. 1236) 1, Okoh & ors v. Asuk & anor [2008] LPELR-2853(SC), Panalpina World Transport (Nig) Ltd v. J. B. Oladeen International & 4 ors [2011] All FWLR (Pt. 564) — the page is not supplied, and Waterlines Nig. Ltd v. Fawe Services Ltd [2003] FWLR (Pt. 163) at 88.
20. That, assuming without conceding that there is any shred of similarity between NICN/ABJ/46/2018 and the instant suit, the submission of the 2nd defendant that this suit constitutes an abuse of court process because the matter has been determined in NICN/ABJ/46/2018 is unfounded and a misconception. That this is apparent because an order striking out an action is not one on the merit which implies hat the suit upon which the order is made is still alive and undetermined. Thus, Ogojeofo v. Ogojeofo and Dingiyandi v. INEC relied in by the 2nd defendant to allege abuse of court process do not apply in this circumstances as no process of this Court has been abused, urging the Court to so hold. The point of the claimant is that an order of court striking out a suit does not constitute estoppel and/or preclude any party therein from reviving the suit. Thus, contrary to the submission of the 2nd defendant, this suit as presently constituted is properly constituted and does not constitute an abuse of court process, urging the Court to so hold.
21. The claimant then stressed that the instant suit is world apart and different from NICN/ABJ/46/2018. That this is vivid having regard to the depositions in paragraph 3(a)(i) - (vi) of its counter-affidavit. That this suit has 7 (seven) germane questions of determination unlike NICN/ABJ/46/2018 which had only one question.
22. The claimant went on that section 2 of the Trade Union Act is not only offensive but an affront on the 1999 Constitution particularly section 254 and so should be struck down by this Court. That section 2 of the Trade Union Act is a carry over of the military mentality and vestiges of old that has no place in a democratic setting that was enthroned upon the coming into being of the 1999 Constitution. And such vestiges are to be weaned out in a democratic setting, citing NUEE v. BPE (supra).
23. In conclusion, the claimant urged the Court to discountenance and dismiss the objection of the 2nd defendant in this matter as same is totality lacking in merit being not in tune with our present state of the law by reason of which the otiose section 2 of the Trade Union Act be struck down by this Court.
The 2nd Defendant’s Reply on Points of Law to the Submissions of the Claimant
24. In replying on points of law, the 2nd defendant submitted a sole issue for determination, to wit: whether the counter-affidavit of the claimant is not grossly unmeritorious. The 2nd defendant answered in the affirmative, urging that the counter-affidavit should accordingly be discountenanced by this Court. That the argument of the claimant in paragraph 2.04 of the written address in support of its counter-affidavit is utterly inelegant. That the proliferations of issues in the instant suit is not an adequate criteria to draw any sharp distinction between the instant suit and that of Suit No. NICN/ABJ/46/2018 contrary to the assertion of the claimant. That the settled position of the law is that originating summons, as in the instant situation, could be decided basically on the reliefs sought even when no issues are formulated for determination.
25. The 2nd defendant then urged the Court to discountenance the argument of the claimant in paragraphs 2.05 to 2.18 of its written address. That the claimant in the said paragraphs of the written address had gone on a frolic of accentuating the efficacy of the jurisdiction bestowed on this Court by the 1999 Constitution (which is not in contention) without taking note of the germane point raised in the preliminary objection that the reliefs in the instant suit are premised on trade disputes which have been judicially affirmed, by this Court, as being desirous to be handled through the trade dispute processes before the imperative commencement of any court action.
26. The 2nd defendant went on that the Court should note the persuasive position of this Court in the judgment in Suit No. NICN/ABJ/46/2028 (in Exhibit A to the affidavit in support of the preliminary objection of the 2nd defendant) delivered on 15 March 2019, particularly at paragraph 62, wherein the Court (while affirming the position of the full panel of this Court) had posited inter alia:
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 I of the Trade Disputes Act.
27. It is the submission of the 2nd defendant that while relying on the foregoing, that this Court has considered the submission of inter and intra union disputes (as in the instant situation) to Trade Disputes Resolution Processes of Part I of “the Trade Union Dispute Act” as an efficacious precursor before the jurisdiction of this Court should ordinarily be invoked on matters bothering on trade disputes, urging the Court to so hold.
28. The 2nd defendant invited the Court to discountenance the submissions of the claimant in paragraph 2.19 of the written address in support of its counter-affidavit as such has no legal basis in the instant suit as the efficacy of Part I of “the Trade Union Dispute Act” vis-a-vis section 254C of the 1999 Constitution is neither an issue proffered for determination in the originating summons (including the supporting affidavit thereof) nor facts espoused upon in its counter-affidavit in opposition to the preliminary objection of the 2nd defendant.
29. That the Court should note that a court is not bound to consider argument or address of counsel, rather the decision of a case should be based on facts pleaded and evidence adduced before the court, citing Today’s Cars Ltd v. Lasaco Assurance Plc [2016] LPELR-41260(CA) and Polycarp Danladi v. Nasir El-Rufai [2018] All FWLR (Pt. 924) 118. The 2nd defendant then submitted that the argument of the claimant in paragraph 2.19 of the written address in support of its counter-affidavit is a needless frolic on the efficacy of Part I of “the Trade Union Dispute Act”; as such is not an issue property placed before this Court for determination, urging this Court to so hold.
30. The 2nd defendant further invited the Court to disregard paragraphs 2.21 to 2.27 of the written address in support of the counter-affidavit of the claimant, wherein the claimant has displayed a gross misconception of how its instant suit before this Court has constituted an abuse of the process of this Court. That the instant suit with the same parties and reliefs that are in pari materia with that of Suit No. NICN/ABJ/46/2018 (struck out on 15 March 2019 as the Court declined jurisdiction) aptly falls within the purview of "frivolity or recklessness”; which are key features of ‘Abuse of Court Process’, citing Opekun v. Sadiq [2003] 5 NWLR (Pt. 841) 475 and ANPP v. Haruna [2003] 14 NWLR (Pt. 841) 546.
31. In conclusion, the 2nd defendant urged the Court to discountenance the counter-affidavit of the claimant and the legal argument in the written address in support and dismiss same having been grossly unmeritorious, and uphold the preliminary objection of the 2nd defendant and decline jurisdiction without wasting the precious time of the Court on the merit of the suit of the claimant which is utterly premature.
THE 3RD DEFENDANT’S PRELIMINARY OBJECTION
The Submissions of the 3rd Defendant
32. The 3rd defendant’s preliminary objection is brought pursuant to sections 6(6)(b), 36(1) and 254C(1)(a), (h) and (j)(vi) of the 1999 Constitution, section 7 of the National Industrial Court (NIC) Act 2006, section 2 of the Trade Disputes Act (TDA) Cap T8, and under the inherent jurisdiction of the Court. The 3rd defendant is objecting to the jurisdiction of the Court to entertain and hear this matter on the ground that the claimant did not institute the suit with due process of law in that it has not complied with the provisions of section 2 of the TDA.
33. To the 3rd defendant, there is no competent suit before the Court, citing Ativie v. Kabel Metal Nig. Ltd [2008] 5 - 6 SC (Pt. II) 47. That based on the processes filed by the claimant, including the exhibits before the Court, the claimant cannot approach this unless it first complies with the provisions of Part I of the TDA, which prescribe the procedure for settling the dispute before engaging the Court, citing Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) v. National Identity Management Commission & 2 ors (unreported) Suit No. NICN/ABJ/46/2018 of 15 March 2019, where Agbakoba J held that “The action of the Claimant is premature and is hereby struck out”. That this decision is binding. And as the 3rd defendant deposed to in its counter-affidavit, nothing has changed since that decision to justify the claimant filing this current suit without complying with the same provisions of the law upon which the first case was struck out.
34. The 3rd defendant continued that as in that case, the starting point is what is a trade dispute or inter union dispute within the provision of section 2 of the “Trade Unions Act”? That the Court will go further to determine whether if a trade or inter union dispute, the same has matured into a real dispute for the intervention of the Court. In other words, whether the doctrine of ripeness has been satisfied before engaging the Court. 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, citing CBN v. Harris [2017] 11 NWLR (Pt. 1575) 54 at 79 - 81 for the distinction of the two terms. That unless there is a violation or threatened violation, the suit will be taken to be premature, citing Sani v. Okene Local Government Traditional Council [2008] 5 - 6 SC (Pt.II) 131 at 134 for meaning of “premature”.
35. 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. This is where the Trade Disputes Act comes in, for which FGN v. Oshiomhole [2004] 1 NLLR (Pt. 3) 541 has defined what constitutes a “trade dispute”. That the case before the Court does come within the definition. That in Association of Food, Beverage and Tobacco Employers (AFBTE) v. Food, Beverage and Tobacco Senior Staff Association (FOBTOB) [2015] 59 NLLR (Pt. 207) 798 at 828 - 832, relying on Lagos Sheraton Hotel & Towers v. Hotel & Personal Services Senior Staff Association [2010] 22 NLLR (Pt. 61) 161 and Amalgamated Union of Public Corporations, Civil Service Technical & Recreational Services Employees v. Agricultural & Allied Workers Union of Nigeria [2009] 17 NLLR (Pt. 46) 26, this Court, relying on its earlier decisions in which it interpreted sections 4(1), 15(1) and 18(3) of the Trade Disputes Act in conjunction with section 7(1)(c)(i) and (iii) of the NIC Act 2006 held that “…a live and existing dispute is needed before the interpretation jurisdiction of this Court can be activated…” That from the originating process, there is no claim or relief against the 3rd defendant save that the effect of the claim against 1st and 2nd defendants, if granted, will divest the 3rd defendant of its statutory entitlements which by its admission in its supporting affidavit. Thus, the law is firmly established that the jurisdiction of the Court is not lightly activated unless there is a live and existing dispute.
36. To the 3rd defendant, 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 sections 7 and 54 of the NIC Act 2006 in conjunction with section 2 of the TDA and section 54 of the Trade Unions Act Cap. T14, the administrative action of the 2nd defendant in its letter of 6 May 2016 and 24 November 2016 settled whatever dispute the claimant has with the 1st and 3rd defendants.
37. The 3rd defendant went on that unless the claimant can show from its originating process that the 2nd defendant has no lawful authority to issue its letter of 24 November 2016 together with that of 6 May 2016, further to which the 1st defendant stopped according her recognition and remittance of check-off dues, the Court cannot exercise jurisdiction under section 7 of National Industrial Court of Nigeria Act 2006 to entertain the matter. Similarly, that since the letters like other facts relate to matters of “inter union dispute” and “Organization” or “organisational dispute” as defined by section 54 of the National Industrial Court of Nigeria Act 2006 or section 2 of the Trade Disputes Act Cap T8, the latter of which bars any action before the Court, the claimant cannot lawfully approach the Court unless it has first complied with section 4(2) of the Trade Disputes Act.
38. To the 3rd defendant, that the claimant made no claim against the 3rd defendant is understandable; the 3rd defendant was joined in the suit midway by order of Court and the claimant did not amend the originating process to reflect the joinder and amend the claim accordingly.
39. Thus, from the supporting affidavit and its exhibits, that there was an inter-union dispute between the claimant and the 3rd defendant, which 3rd defendant called the 1st defendant into. And the 1st defendant took an administrative action as enjoined by the enabling statute that it is the 3rd defendant that is entitled to recognition of the 2nd defendant, to organise the staff and collect check-off dues from the workers, referring to the 2nd defendant’s letter of 24 November 2015 as exhibited and its earlier letter of 5 May 2016 also exhibited.
40. That by section 2 of the “Trade Unions Act”, “No person shall commence an action, the subject matter of a trade dispute or any inter or intra union dispute in a court of law…” That this provision implies that an inter-union dispute cannot be brought to this Court until the dispute has first been taken to and resolved by the Industrial Arbitration Panel (IAP), referring to Part I of the Act. That the jurisdiction of the Court has not been activated such that the Court can make a pronouncement in favour of the claimant. The matter that is properly before it on which the Court can assume jurisdiction is the 3rd defendant's counterclaim.
41. In conclusion, the 3rd defendant urged the Court to decline jurisdiction to entertain the claimant's claim and hold that the suit before it is premature and liable to be struck out.
The Submissions of the Claimant in Opposition to the 3rd Defendant’s Preliminary Objection
42. To the claimant, the 3rd defendant’s preliminary objection is aimed at shutting out the claimant in this suit from exercising their constitutionally guaranteed right of approaching a court of competent jurisdiction such as this Court to ventilate a genuine grievance arising from trade dispute, urging the Court to dismiss the 3rd defendant’s preliminary objection as same is misconceived, unmeritorious and seeks to ultimately oust the 1999 Constitution and consequently, the jurisdiction of this Court as enshrined therein.
43. The claimant then submitted a sole issue for determination i.e. whether this Honourable Court ought not to dismiss the application of the 3rd defendant/applicant; and answered in the affirmative. The submissions of the claimant on this issue are essentially the same with its reaction on same issue to the submissions of the 2nd defendant already highlighted above. For instance, the submissions (including the cases and statutory provisions cited) of the claimant in paragraphs 2.05 to 2.20 of its written address in opposition to the 2nd defendant’s preliminary objection are basically the same with its submissions in paragraphs 2.02 to 2.16 of its written address in opposition to the 3rd defendant’s preliminary objection. The only difference is that the claimant in its submissions against the 3rd defendant’s objection quoted section 2 of the TDA in full. There is accordingly no point in repeating the said submissions here. The claimant would even end his submissions against the 3rd defendant’s objection with a plea to this Court to “discountenance and dismiss the Objection of the 2nd Defendant…” — evidence of uncritical copying (and paste). The concluding paragraph 3.01 (as well as paragraph 2.28) of the claimant’s written address against the objection of the 2nd defendant are respectively word for word with the concluding paragraph 3.01 (as well as paragraph 2.34) of the claimant’s written address against the objection of the 3rd defendant.
44. The claimant, however, went on that the 3rd defendant had argued that sections 7 and 54 of the National Industrial Court Act 2006, section 2 of the Trade Disputes Act CapT8, section 54 of the Trade Unions Act Cap T14, the administrative action of the 2nd defendant in its letters of 6 May 2016 and 24 November 2016 settled the trade dispute herein. The claimant urged the Court to discountenance that submission of the 3rd defendant in that it runs afoul of everything that the supremacy of the Constitution stands for.
45. Citing section 7(3) of the NIC Act 2006, the claimant submitted that it conspicuously omitted the Constitution after the introductory word “Notwithstanding…” That this is because, not just that the Constitution is not an ordinary Act or enactment but because from judicial pronouncements, the Constitution is superior to the NIC Act 2006 and thus the NIC Act cannot withstand the supreme Constitution having regard to extant judicial authorities and sections 1(1) and (3), 6(6)(b) and 254C thereof, citing NDIC v. Okem Ent. Ltd & anor [2004] All FWLR (Pt. 210) 1176 on the meaning of the word “Notwithstanding” as used in section 251(1). That the corollary of its submission is that assuming without conceding that the above provision of the NIC Act contemplated the Constitution as part of the Acts, enactments or law in question, this said section 7(3) of the NIC Act is to that extent null, and void and of no effect, citing NDIC v. Okem Ent. Ltd & anor (supra). That when “notwithstanding” is used in a statute, it is only used in reference to the other provisions of that same statute or subordinate statute NOT superior statutes such as the Constitution. That what is even more pungent is that the operative word of the above provision is “any”, which connotes that there is nothing mandatory about the said provision but same is permissive, optional or discretionary. That the import of this is that any such enactment, if any, shall not be targeted at ousting the jurisdiction of a court of competent jurisdiction conferred by the Constitution. Hence such enactments cannot torpedo the Constitution of the Land, citing Ilobi v. Uzoegwu [2005] All FWLR (Pt. 285) 595.
46. The claimant continued that historically, Decree 47, the “capehorn” of the National Industrial Court Act 2006 was declared null and void by the Supreme Court. And so the Supreme Court went on to declare the National Industrial Court as an inferior court of record, citing NUEE v. BPE (supra) at 241; and Skye Bank Plc v. Iwu [2018] All FWLR (Pt. 922) 1 at 98, which traced this historical trajectory. To the claimant, section 7 of the NIC Act was founded on Decree No. 47, which Decree was declared null and void in NUEE v. BPE, hence the need for the Third Alteration. That accordingly, any reference to the NIC 2006 to determine the jurisdiction of this Court is of no moment from the day the section 254C of the 1999 Constitution took effect. That the only point of reference in search for the jurisdiction of this Court is the said section 254C of the Constitution. It is therefore the claimant’s submission that pursuant to the above, upon coming into effect of the 3rd ALTERATION particularly SECTION 254C thereof, this Court became a superior court of record. Thus, its jurisdiction is rooted in the Constitution firstly and the validity derived therefrom is over and above every other statute.
47. To the claimant, the 3rd Alteration did not make any concession to section 7 of the National Industrial Court Act 2006. Instead, the 3rd ALTERATION extracted what was acceptable from the National Industrial Court Act 2006 and discards those that were not in line with the Constitution. That the 3rd ALTERATION is prospective and not retrospective and so could not have been creating allowance for an inferior Act of 2006, referring to Adesanoye & 2 ors v. Adewole [2000] FWLR (Pt. 14) 2387, Afolabi & ors v. Governor of Oyo State [1985] 2 LSCC 1151 at 1180 and Words and Phrases Legally Defined Vol. 4,335.
48. Similarly, that section 54 of the NIC Act which the 3rd defendant relied on as well does not rescue him, in that being the definition section of the Act it rightly defines ‘Court’ as “…the National Industrial Court…” That this means that even the said Act recognises the jurisdiction of this Court to entertain trade disputes such as this. Also, that section 54 of the Trade Union Act Cap. T14, which the 3rd defendant relied on as well does not also rescue him, in that the said section which is the definition section of the Trade Union Act defines “appropriate court” as both “the Industrial Arbitral Panel and the National Industrial Court as the case may be”. Clearly and manifestly, that these sections expressly recognise that the National Industrial Court is conferred with the jurisdiction to adjudicate on trade disputes such as in the instant suit, urging the Court to so hold.
49. Furthermore, that in direct response to the 3rd defendant’s paragraph 1.14 of its written address, the said letter of 6 May 2016, which the claimant has exhibited as EXHIBIT OOC9 in paragraph 3(1) of the affidavit in support of originating summons, is what gave rise to the claimant’s right of action which he has instituted vide this suit seeking redress as endorsed on the originating summons. As already canvassed in the originating processes, the said action of the 1st defendant in issuing EXHIBIT OOC9 is a usurpation of legislative functions which is manifestly unconstitutional. That this is because a community reading of sections 4 and 318 of the 1999 Constitution, the EXTRAORDINARY GAZETTE No. 6 OF THE FEDERAL REPUBLIC OF NIGERIA 1978, sections 1, 2, 3, 7, 8, 9 32(3) and (6) of the NATIONAL IDENTITY MANAGEMENT COMMISSION ACT (NIMC ACT) will not only show that the 1st defendant’s issuance of Exhibit OOC9 is unlawful and unconstitutional, same purporting to amend the afore-cited statutory provisions, but it shows that the claimant herein is the rightful trade union to unionize the 2nd defendant. Hence, the unlawful act of the 1st defendant in unilaterally transferring the claimant’s right to unionize and collect check-off dues from the 2nd defendant to the 3rd defendant is the reason why the claimant commenced this suit.
50. The claimant then submitted that by Tanko v. State (supra), FRN v. Osahon (supra), NUEE v. BPE (supra), Nuhu v. Ogele (supra) etc, and sections 4 and 318 of the 1999 Constitution, the EXTRAORDINARY GAZETTE No. 6 OF THE FEDERAL REPUBLIC OF NIGERIA 1978, sections 1, 2, 3, 7, 8, 9, 32(3) and (6) of the NATIONAL IDENTITY MANAGEMENT COMMISSION ACT (NIMC ACT), the action of the 1st defendant in issuing Exhibit OOC9 i.e letter of 6 May 2016 purports to amend these laws and same does not fall within the purview of the 1st defendant’s constitutional powers. Thus, this is the claimant’s warrant for commencing this suit. That this Court and other courts have always been enjoined and admonished to safeguard the provisions of the Constitution from being supplanted by any other enactment or law and this admonishment was judicially pronounced in Ajoku v. AG of Rivers State [2006] All FWLR (Pt. 312) 2147. The claimant then urged the Court to so hold and declare that the said section 2 of the Trade Disputes Act, which purports to supplant the constitutional provisions in sections 1(1) and (3), 6(6)(b) and 154C thereof invalid as same is flagrantly contradictory to the tenets of the Constitution.
51. Furthermore, that section 147(1) of the 1999 Constitution which created the 1st defendant did not expressly or impliedly vest him with legislative powers to exercise however whatsoever. In fact, that even the President of the Federal Republic of Nigeria, who has the power to appoint the 1st defendant, does not have the legislative powers exercised by the 1st defendant herein in EXHIBIT OOC9, which exhibit, issued by the 1st defendant, expressly amends sections 4 and 318 of the 1999 Constitution, the EXTRAORDINARY GAZETTE NO. 6 OF THE FEDERAL REPUBLIC OF NIGERIA 1978, sections 1, 2, 3, 7, 8, 9, 32(3) and (6) of the NATIONAL IDENTITY MANAGEMENT COMMISSION ACT (NIMC) ACT), is unconstitutional thus enabling the claimant’s right to commence this suit, citing AG of Lagos v. AG of the Federation [2004] NSCQR (20) 99.
52. The claimant went on that section 2 of the Trade Union Act is not only offensive but an affront on the 1999 Constitution particularly section 254 and so should be struck down by this Court. That section 2 of the Trade Union Act is a carry over of the military mentality and vestiges of old that has no place in a democratic setting that was enthroned upon the coming into being of the 1999 Constitution. And such vestiges are to be weaned out in a democratic setting, referring to NUEE v. BPE (supra).
53. In conclusion, the claimant urged “this Court to discountenance and dismiss the Objection of the 2nd Defendant in this matter as same is totally lacking in merit being not in tune with our present state of Law by reasons of which the otiose section 2 of the Trade Union Act be struck down by this Honourable Court”.
The 3rd Defendant’s Reply on Points of Law to the Submissions of the Claimant
54. To the 3rd defendant, in purporting to argue the sole issue it raised, the claimant took the 3rd defendant’s arguments on the preliminary objection out of context and argued excessively on matters which are neither before the Court nor on which, if before the Court, it has no jurisdiction to make pronouncement having regard to the provision of section 254C of the 1999 Constitution. That in paragraph 3.05 of its address, the claimant has argued that 3rd defendant argued that the Court should discountenance sections 1(1) and (3), 36(1) and 254C of the 1999 Constitution, which said constitutional provisions are where the 3rd defendant’s preliminary objection is surprisingly predicated on. The submission goes further in paragraph “0.4” to say that the 3rd defendant “…aims to shut out the Claimant in this Suit from exercising their Constitutionally guaranteed right…” as such “…this Honourable Court [should] dismiss the…Preliminary Objection as the same is misconceived, unmeritorious and seeks to ultimately oust the 1999 Constitution & consequently the jurisdiction of the Court…” For the 3rd defendant, clearly this defines the claimant’s sole issue, which is not a proper issue arising from the matter presented before the Court through the preliminary objection, but is also judgmental.
55. Accordingly, that there is nothing in the written address of the 3rd defendant that is near the claimant’s submission that 3rd defendant “…aims to shut out the Claimant…” or “…seeks to ultimately oust the 1999 Constitution”. And indeed there is no basis for any lawyer to seek to want to shut out the other party or oust the Constitution as that will leave him with what material he is going to rest his case on.
56. The 3rd defendant then proceeded with what it termed its reply on points of law. To the 3rd defendant, the totality of the claimant’s reply to 3rd defendant’s written address particularly in paragraphs 2.02 to 2.28 thereof as to the supremacy of the Constitution and nullity of other subordinate provisions are profuse and excessive in irrelevance. Similarly, all the judicial authorities cited on the points raised are totally misconceived and inapplicable. Those authorities mean what they decided and are not on similar facts with the issues raised in this case. That the issue of jurisdiction raised by the 3rd defendant in the preliminary objection is as distinctively set out in the case of BPE v. Dangote Cement Plc [2020] 5 NWLR (Pt. 1717) 322 at 345.
57. The 3rd defendant referred to Ndayayako v. Dantoro [2004] 13 NWLR (Pt. 889) 187 at 219, where the apex Court said:
It is noteworthy that a distinction must always be drawn between two types of jurisdiction viz jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst the litigant can waive the former, no litigant can confer jurisdiction in the court where the constitution or a statute or any provision of the common law says that the court shall have no jurisdiction. A litigant may submit to procedural jurisdiction of the court e.g. where a writ has been served outside jurisdiction without leave (underlining is the 3rd defendant’s).
58. That the issue of jurisdiction raised by the 3rd defendant vide its preliminary objection is a procedural issue as distinct from substantive issue, referring to Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1 at 41. Moreover, that the claimant’s claim before the Court is not one challenging the validity of the various provisions now urged to be annulled or declared void or inconsistent (that is not the issue before the Court) but whether having not taken the procedural step prescribed by Part I of the Trade Disputes Act, the claimant can validly activate the jurisdiction of the Court.
59. And then submitted that the jurisdiction of this Court under section 254C of the 1999 Constitution is a one-off jurisdiction and that the Court is not a co-beneficiary of the exclusive jurisdiction of the Federal High Court under section 251 of the Constitution to enable it make the declaration sought by the claimant as to the nullity and or validity of sections of other provisions.
60. That with particular reference to the arguments in paras. 2.15, 2.16, 2.17, 2.18, 2.20 and 2.21 of the written address, the issue before the Court is not one of superiority of one against the inferiority of the other. Furthermore, that the claimant’s complaints must be identified within the “contest” of the Trade Disputes Act. That section 6(6)(b) of the Constitution obviously allows and does not detract from claimant’s right of access to court. What Part I of the Trade Disputes Act has done is to prescribe a condition precedent to accessing the right of access to court.
61. The claimant had made various submissions in paragraphs 2.29, 2.30, 2.31, 2.32, 2.33 and 2.34 of the address to the effect inter alia that action of 1st defendant in Exhibit OOC9 is usurpation of legislative functions or unlawful and unconstitutional or amendments of the laws (which is the warrant for commencing this suit), wherefore the Court is urged to hold and declare that section 2 of the Trade Disputes Act purporting to supplant the constitutional provisions of sections 1(1) and (3), 6(6)(b) and 254C. To the 3rd defendant, the actions referred to are executive and administrative actions within section 251(1)(p), (q) and (r) of the Constitution over which the Federal High Court has exclusive jurisdiction, citing Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1 at 37.
62. In conclusion, the 3rd defendant urged the Court to uphold the preliminary objection, decline jurisdiction to entertain the claimant’s claim and hold that the suit before it is premature and liable to be struck out with substantial cost.
COURT’S DECISION
63. I indicated earlier that I will consider the two preliminary objections first, and that I will give my reason(s) for adopting this procedure in the decision part of the judgment. I shall now proceed to explain. The procedure of taking a preliminary objection and an originating summons together is not alien to our legal system. See Hon. Michael Dapianlong & ors v. Chief (Dr) Joshua Chibi Dariye & anor [2007] LPELR-8241(CA). All that is required of the Court is to determine the objection first before addressing the merit of the originating summons. In General Mohammed A. Garba (Rtd) v. Mustapha Sani Mohammed & ors [2016] LPELR-40612(SC), it was held that:
Where a preliminary objection challenging the Court's jurisdiction is heard along with the substantive suit or application, the Court must give a ruling on the objection before proceeding to determine the substantive suit.
64. The rationale was susccittingly put by His Lordship Tobi, JSC in Feed & Food Farms (Nigeria) Ltd v. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387 in these words:
Let me quickly take the Issue No. 1 formulated by the cross appellant. Any court below the Supreme Court is in order to take, in the alternative, the merits of the matter after coming to the conclusion that it has no jurisdiction to hear the matter. This is to make sure that the case is not further delayed if the appellant court comes to the conclusion that the ruling on lack of jurisdiction is wrong. Accordingly, I am of the view that it is good wisdom on the part of the Court of Appeal to take the other issues in the appeal after coming to the conclusion that it had no jurisdiction to hear the matter.
65. The instant case, however, presents a difficult but interesting scenario. The argument of the two objectors is that this case is prematurely before this Court. In other words, this Court’s jurisdiction over the matter is appellate, not original. As such, if this Court should decide both the preliminary objections and the merit of the case (and in the objection hold that the case should go through the processes of Part I of the Trade Disputes Act (TDA) Cap T8 LFN before this Court can be approached in its appellate jurisdiction) and the Court of Appeal agrees with this Court’s decision in that regard, having also decided the merit of the case would only imply that the dispute resolution processes of Part I of the TDA have simply been given a fait accompli. This will make nonsense of all the dispute resolution processes, not only of Part I of the TDA, but also of this Court and possibly the Court of Appeal.
66. I shall accordingly consider only the preliminary objections of the 2nd and 3rd defendants. Should I decide that the objections have merit, this will mean that the case will have to go through the dispute resolution processes of Part I of the TDA. In which event, it will be needless to say anything on the merit of the originating summons since the issues it raises are issues that have to be determined by lower dispute resolution processes before this Court can be approached. My colleague, Agbakoba J in Senior Staff Association of Statutory Corporations and Government owned Companies (SSASCGOC) v. National Identity Management Commission, Minister for Labour and Productivity and Association of Senior Civil Servants of Nigeria unreported Suit No. NICN/ABJ/46/2018, the judgment of which was delivered on 15 March 2019, adopted a similar procedure. Although Her Ladyship considered both the objection and the originating summons together, on deciding that the case was prematurely before the Court, relying on Patricia N. Ugwu & ors v. Rockefeller Ogboso [2010] 21 NLLR (Pt. 58) 164 at 180, she struck the case out. Yet, it is one of the arguments of the objectors in this instant suit that NICN/ABJ/46/2018 having only been struck out cannot hinder the filing of the instant suit.
67. In resolving the issues raised in the preliminary objections, some preliminary issues need to be pointed out. The reference, by the claimant in paragraphs 2.10, 2.11 and 2.28 of its written address in response to the 2nd defendant’s preliminary objection, to section 2 of the “Trade Union Act” as first not ousting or restricting/limiting the jurisdiction of this Court; and second, being not only offensive but an affront on the 1999 Constitution particularly section 254 makes little sense. (Section 2 of the “Trade Union Act” is also referred to in paragraph 3.01 of the said claimant’s written address against the objection of the 2nd defendant.)
68. In paragraph 2.34 of its written address in opposition to the 3rd defendant’s preliminary objection, the claimant would also refer to “Section 2 of the Trade Union Act” as being offensive and an affront on the 1999 Constitution particularly section 254, as well as a carry over of military mentality and vestiges of old that has no place in a democratic setting. (Section 2 of the “Trade Union Act” is also referred to in paragraph 3.01 of the said claimant’s written address against the objection of the 3rd defendant.)
69. The 3rd defendant in paragraphs 1.06 and 1.18 of its written address in support of its preliminary objection also talked of “S. 2 of the Trade Unions Act”. In paragraph 1.12 of its written address in support of its preliminary objection, the 3rd defendant also talked of “S. 54 of the Trade Union Act Cap T14”.
70. For one, section 2 of the “Trade Union[s] Act” deals with the prohibition of unregistered trade unions from functioning. And secondly, section 254 of the 1999 Constitution deals with the power of the Chief Judge of the Federal High Court to make rules for regulating the practice and procedure of the Federal High Court. How these two provisions relate to the preliminary objections before the Court is something I cannot fathom.
71. The 2nd defendant on its part referred to “the Trade Union Dispute Act” in paragraphs 3.1.5, 3.1.6 and 3.1.7 of its reply on points of law to the claimant’s submissions opposing the preliminary objection of the 2nd defendant. I must state that there is no law known to me as “the Trade Union Dispute Act”.
72. The 2nd defendant in paragraph 3.1.2 of its reply on points of law accused the claimant of being inelegant in its submission in paragraph 2.04 of the claimant’s written address opposing the 2nd defendant’s objection. I wonder what the 2nd defendant would make of its submission in paragraph 3.1.5 of its reply on points of law — a submission I cannot make any sense of.
73. In paragraph 1.19 of its written address in support of its preliminary objection, the 3rd defendant talked of the matter that is properly before this Court on which the Court can assume jurisdiction being the 3rd defendant’s counterclaim. I am not aware that the 3rd defendant has a counterclaim before this Court. The 3rd defendant’s counter-affidavit to the claimant’s originating summons as filed on 9 July 2021 bears no such claim.
74. In paragraph 1.16 of its written address in support of its preliminary objection, the 3rd defendant submitted that the claimant made no claim against the 3rd defendant (this is understandable); and that the 3rd defendant was joined in the suit midway by order of Court and the claimant did not amend the originating process to reflect the joinder and amend the claim accordingly. The 3rd defendant appears to intuit that it had no hand in it being joined as the 3rd defendant. I must stress that it was the 3rd defendant who applied and got the order of this Court to be joined, something the claimant even opposed.
75. The 3rd defendant would proceed in paragraph 2.05 of its reply on points of law to the claimant’s submissions opposing the 3rd defendant’s preliminary objection to submit “that the jurisdiction of this Court under section 254C of the 1999 Constitution is a one-off jurisdiction and that the Court is not a co-beneficiary of the exclusive jurisdiction of the Federal High Court under section 251 of the Constitution to enable it make the declaration sought by the claimant as to the nullity and or validity of sections of other provisions”. I really do not understand what the 3rd defendant means here by saying that this Court is not a co-beneficiary of the exclusive jurisdiction of the Federal High Court under section 251 of the Constitution to enable it make the declaration sought by the claimant as to the nullity and/or validity of sections of other provisions. Is the 3rd defendant saying that this Court cannot make a pronouncement on the validity of any provision of a law that goes contrary to the Constitution in matters pertaining to labour, employment or industrial relations? Is the 3rd defendant saying that this Court cannot interpret the Constitution in matters pertaining to labour, employment or industrial relations? It must be warped reasoning if the 3rd defendant thinks that this Court cannot.
76. For instance, Diamond Bank Plc v. Chijioke Unaka & ors [2019] LPELR-50350(CA) held that:
By the provision of Section 254C(1)(d) of the 1999 Constitution (as amended), only the National Industrial Court has jurisdiction in respect of breach of fundamental rights in cases relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, or relating to or connected with disputes arising from payment or nonpayment of salaries, wages, etc SCC Nigeria Limited Vs George (2019) LPELR-46963(CA).
77. And in relation to statutes other than the Constitution, this is what Mainstreet Bank Registrars Ltd v. Chimezie Sunday Ahaiwe [2019] LPELR-47057(CA) said of the Companies and Allied Matters Act (CAMA) 2004:
The invocation and interpretation of the Companies and Allied Matters Act CAMA 2004 or its applicability without more cannot be the determinant of jurisdiction. That legislation can be invoked, interpreted and applied as appropriate and applicable by the National Industrial Court, which is a superior Court of Record. Its applicability does not de-robe an otherwise competent Court with jurisdiction.
78. It must be noted that this holding was made despite that by section 251(1)(e) of the 1999 Constitution itself, the Federal High Court has exclusive jurisdiction over civil causes and matters “arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act”.
79. I now turn to the main submissions of the parties regarding both preliminary objections. Taking both preliminary objections of the 2nd and 3rd defendants, it will be seen that they are premised on two main grounds:
(a) The instant suit filed by the claimant is a trade dispute for which the dispute resolution processes of Part I of the TDA ought to have been exhausted before any suit can be filed in this Court. The 3rd defendant here is specific that the claimant did not institute the suit with due process of law in that it has not complied with the provisions of section 2 of the TDA, which section is in Part I of the TDA. Alternatively put, the jurisdiction of this Court over the matters presented before it in this suit is appellate, not original. The suit is accordingly prematurely before the Court.
(b) The instant suit as currently placed before this Court is same with Suit No. NICN/ABJ/46/2018 in which this Honourable Court had declined jurisdiction in its judgment of 15 March 2019. In respect of this ground, the 3rd defendant, citing Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) v. National Identity Management Commission & 2 ors (supra), quoted Agbakoba J as holding that “The action of the Claimant is premature and is hereby struck out”. The 3rd defendant then submitted that this decision is binding; and, as the 3rd defendant deposed to in its counter-affidavit, nothing has changed since that decision to justify the claimant filing the instant suit without complying with the same provisions of the law upon which the first case was struck out.
80. To be able to resolve these issues, it must first be understood what the case of the claimant is. To the claimant itself, its case is that the senior staff of the 2nd defendant are NOT civil servants BUT public servants; and as a result, the claimant is the rightful trade union constitutionally and statutorily recognised, empowered and/or authorized to unionize the senior staff of the 2nd defendant. In paragraph 2.30 of its written address in opposition to the 3rd defendant’s preliminary objection, the claimant stressed that “the unlawful act of the 1st Defendant in unilaterally transferring the Claimant’s right to unionize and collect Check off Dues from the 2nd Defendant to the 3rd Defendant is the reason why the Claimant commenced this suit”.
81. A look at especially paragraph 3(l), (p), (r) to (z), and (aa) to (kk) of the claimant’s affidavit in support of the originating summons will confirm this position of the claimant. These paragraphs affirm that the claimant’s complaint is that it is the trade union that should unionise senior staff of the 2nd defendant and so is entitled to the check-off dues in that regard. The case of the claimant is that from 2013, it established its union in the 2nd defendant under the name of Senior Staff Association of Communications Transport and Corporation (SSACTAC) and the 2nd defendant paid check-off dues to it. The claimant by court order changed this name to the present name, SSASCGOC. But on 6 May 2016, the 1st defendant wrote to the 2nd defendant instructing it to commence paying to the 3rd defendant the check-off dues of its senior staff, which staff are not civil servants. It is to reverse all this that the claimant filed this action.
82. The claimant had earlier filed NICN/ABJ/46/2018 asking two questions: whether it is the rightful union to unionise the senior staff of the National Identity Management Commission (NIMC); and secondly, “whether the letter dated 24th November 2016 from the 2nd Defendant [Minister of Labour] is valid under the law”. This letter of 24 November 2016 is part of the documents attached to Exhibit OOC24 dated 17 December 2019 referred to in paragraph 3(z) of the affidavit in support of the originating summons. The letter of 24 November 2016 is a letter to the Director General/CEO of NIMC, written on behalf of the Minister of Labour, referred to the letter of 6 May 2016 and affirmed the instruction that the NIMC should continue to recognise the Association of senior Civil Servants of Nigeria (ASCSN).
83. Since this is the case of the claimant, two questions arise: is the dispute then a trade dispute for which the processes of Part I of the TDA must apply before the claimant can come to this Court in its appellate jurisdiction? The second question bears close proximity to the first: if the dispute between the parties is a trade dispute, is it same with NICN/ABJ/46/2018 where my colleague Agbakoba J declined jurisdiction on the ground that it was prematurely brought to this Court?
84. To take the first question, this Court has over time held that disputes over check-off dues or recognition disputes are trade disputes for purposes of Part I of the TDA. For instance, in Corporate Affairs Commission v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees [2004] 1 NLLR (Pt. 1) 1 especially at pp. 24 – 25, the NIC first held that where “ a union complains that an employer is refusing to deduct check-off dues in respect of employees or workers who are eligible to be members, that complain is a dispute and can properly be heard under the dispute resolution processes of the TDA…” This Court then additionally held that because the questions of recognition of a trade union and deduction of check-off dues by employers are matters provided for in the Trade Unions Act for which the ‘appropriate court’ seized with jurisdiction is either the Industrial Arbitration Panel (IAP) or National Industrial Court (NIC), those questions were validly brought before the court after being hear by the IAP.
85. And the dispute between the Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) and Maritime Workers Union of Nigeria (MWUN) over the “Unionization of employees of GAC Manning Services on board FPSO Sendje Berge” was treated as a trade dispute in Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) v. Maritime Workers Union of Nigeria (MWUN) [2015] 61 NLLR (Pt. 214) 403 even though it was a direct referral to this Court by the Honourable Minister of Labour.
86. So, when Decree 47 of 1992 amended the TDA to include inter and intra union disputes, this Court recognised the three species of disputes that must go through the dispute resolution processes of Part I of the TDA before the jurisdiction of this Court in its appellate level can be activated. However, given the urgency in trade union election disputes, this Court recognised an exception and allowed such matters to come to this Court in its original jurisdiction. Trade union elections often involve huge cost and time is often of the essence. Additionally, this Court has the power to grant urgent interim reliefs under section 19(a) of the NIC Act 2006 as well as the power of injunction in lieu of quo warranto under section 18 of the NIC Act 2006, which is stated thus:
In any case where any person acts in an office in which he is not entitled to act, the Court may grant an injunction restraining him from so acting and may (if the case so requires) declare the office to be vacant.
87. There is the further jurisdiction and power to interpret trade union constitutions under section 7(1)(c)(iv) of the NIC Act 2006 as well as now section 254C(1)(j)(vi) of the 1999 Constitution. These provisions, we rationalised, are particularly meaningful in trade union election disputes, hence the recognition by this Court of the exception as to trade union election disputes coming directly to this Court in its original jurisdiction.
88. In the instant case, I reiterated earlier what the case of the claimant is — the claim for recognition as the appropriate union to unionise the senior staff of the 2nd defendant; and hence the claim for the check-off dues in that regard. The disputes over these all qualify as trade disputes; and so ought to have been brought under the dispute resolution processes of Part I of the TDA. The fact that the claimant is seeking for five declaratory reliefs is immaterial in activating the dispute resolution processes of Part I of the TDA since conceptually, an award of an arbitral tribunal involves the ascertainment of legal rights first and foremost. See National Union of Hotels and Personal Services Workers v. National Union of Air Transport Employees & anor unreported Suit No. NICN/ABJ/207/2018, the judgment of which was delivered on 4th July 2019.
89. Recognising that lawyers are prone to evade the dispute resolution processes of Part I of the TDA, this Court has also held that the ploy, in practice, of using the interpretation jurisdiction to avoid or circumvent the processes of Part I of the TDA will not be allowed as the case of Hotel and Personal Services Senior Staff Association v. Tourist Company of Nigeria Plc [2008] 10 NLLR (Pt. 26) 170 shows.
90. In reacting to the 2nd defendant’s preliminary objection, the claimant had submitted that Part I of the Trade Disputes Act (TDA), which purports to exclude and/or oust this Court from adjudicating on trade disputes, is inconsistent with sections 1(1) and (3), 6(6)(b) and 254C of the 1999 Constitution and is consequently null, void and of no effect. Thus, this Court ought not to be guided by a nullity. The simple answer to this submission of the claimant is that there is nothing unconstitutional about Part I of the TDA. The claimant should simply look at the proviso to section 254C(3) of the 1999 Constitution. Section 254C(3) together with the proviso provides as follows:
The National Industrial Court may establish an Alternative Dispute Resolutions Centre within the Court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law:
Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.
91. To the extent that the Constitution itself acknowledges that “nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal…”, and arbitration at the IAP is part of the processes of Part I of the TDA, it cannot be that the said Part I of the TDA is unconstitutional. And by section 7(3) of the NIC Act 2006, “Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1)(a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court”.
92. The processes of Part I of the TDA are processes as to conciliation and arbitration. In AUPCTRE v. FCDA and ors [2008] 10 NLLR (Pt. 26) 304, the NIC had this to say of section 7(3) of the NIC Act 2006:
…the word, “Notwithstanding”, in section 7(3) is meant to qualify the jurisdiction granted the NIC until conciliation and arbitration, if provided for, have been done. It is to reinforce this stance of the law that section 7(4) of the NIC Act provides that an appeal shall lie from the decision of an arbitral tribunal to this court as of right in matters of disputes specified in section 7(1)(a) of the NIC Act. In appropriate cases…the original jurisdiction of this court may, by an Act of the National Assembly, be made contingent upon exhausting the processes of conciliation and arbitration. Where this is the case, the position is not that the jurisdiction of the court has been ousted; only that it is contingent upon those processes being exhausted.
93. The import of section 7(3) of the NIC Act is that matters within the purview of section 7(1)(a) i.e. matters in respect of “labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto”, which had to go through the processes of Part I of the TDA will continue to go through those processes even after the passing of the NIC Act, and now even after the passage of section 254C(3) of the 1999 Constitution.
94. I must add that to the extent that section 254C(1)(j)(ii) of the 1999 Constitution grants this Court the jurisdiction to interpret the “award or order made by an Arbitral Tribunal in respect of a trade dispute or a trade union dispute” can also only mean one thing — that an arbitral tribunal (the IAP is one) can entertain matters pertaining to trade disputes or trade union disputes. Section 7(1)(c)(ii) of the NIC Act 2006 reinforces this when it also grants this Court the jurisdiction to interpret “any award made by an arbitral tribunal in respect of a labour dispute or on organizational dispute”.
95. A recent Court of Appeal decision supports the stance I took in holding that the matter at hand is a trade dispute. The garb in which the instant case has been dressed i.e. that it is one of interpretation of sections 1, 2, 3, 7, 8, 9, and 32(3) and (6) of the NIMC Act, The NIMC Personnel Policies and section 318(1) of the 1999 Constitution is just a ploy to avoid going through the dispute resolution processes of Part I of the TDA.
96. The Court of Appeal decision in Non-Academic Staff Union of Educational and Associated Institutions v. Aniah Jacob & ors [2020] LPELR-49951(CA) put the issues in perspective in the following words:
It must be understood that the claims of the Respondents that seek interpretation of portions of the Appellants Constitution and terms of the MOU, were premised on the disagreement over the propriety of the dissolution of the elected Executive Committee by the Appellant (dispute between members and the Union itself), which in turn arose out of a dispute between the elected Executive Committee members that had factionalized the Branch (dispute between members of the same Union inter se). Looked at from this unswerving precinct, and having regard to established interpretations of what constitutes an intra-union dispute, the dispute between the parties herein was an intra-Union dispute, Kalango v Dokubo (supra); Umoren v Akpan (supra); NUT & Ors v. Conference of Secondary School Tutors (COSST) & Ors (supra); Daniel v. Fadugba (1998). The question now is whether the Lower Court had jurisdiction to hear and determine an intra-Union dispute.
The Appellants (sic) Counsel contended that the Lower Court, as a Court of first instance, had no jurisdiction to hear and determine an intra-union dispute. Without any hesitation, I would agree with this standpoint and proceed to explain why. As already settled, Courts are creatures of statute. The jurisdiction of a Court is disclosed and bounded by the statute that creates it. The lower Court was created by Section 254A of the 1999 Constitution, as amended, and its jurisdiction set out by Section 254C. Section 254C(1) (j) provides:
(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 -
(j) relating to the determination of any question as to the interpretation and application of any - (i) collective agreement; (ii) award or order made by an arbitral Tribunal in respect of a trade dispute or a trade union dispute; (iii) award or judgment of the Court; (iv) term of settlement of any trade dispute; (v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement; (vi) trade union Constitution, the Constitution of an association of employers or any association relating to employment, labour, industrial relations or work place; (vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof…
The National Industrial Court Act, which is an Act of the National Assembly, provides in Section 7 (1) - (4):
7. (1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters -
(a) relating to - (i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and
(b) relating to the grant of any order to restrain 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;
(c) relating to the determination of any question as to the interpretation of- (i) any collective agreement, (ii) any award made by an arbitral Tribunal in respect of a labour dispute or an organizational dispute, (iii) the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, (iv) any trade union Constitution, and (v) any award or judgment of the Court.
(2) The National Assembly may by an Act confer such additional jurisdiction on the Court in respect of such other causes or matters incidental, supplementary or related to those set out in Subsection (1) of this Section.
(3) Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under Subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court.
(4) An appeal shall lie from the decisions of an arbitral Tribunal to the Court as of right in matters of disputes specified in Subsection (1) (a) of this section…
The Trade Disputes Act, CAP 432, Laws of the Federal Republic of Nigeria, 2004, defines a trade dispute as:
“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 and physical conditions of work of any person.
By these provisions, trade disputes that are inter union or intra union fall within the purview of the Act. See also N.U.E.E. v B.P.E. (2010) NSCQR VOL 41 at 614.
The Appellants (sic) Counsel has rightly submitted that the Trade Disputes Act is an Act of the National Assembly, which, pursuant to Section 7(3) of the NIC Act, prescribes in its Part I that trade disputes, including inter and intra Union disputes, must go through the process of conciliation or arbitration before such matter can be heard by the National Industrial Court as of right in appellate jurisdiction. The jurisdiction granted to the NIC by the Constitution and by statutory provisions as found in the NIC Act regarding trade disputes such as, inter and intra Union disputes, is an Appellate jurisdiction, exercisable after the said disputes have gone through the conciliatory and arbitration body. See in particular the provisions of Section 254C(1)(j) of the 1999 Constitution, as amended, and, Section 7(4) of the NIC Act. Therefore, I agree with the Appellants (sic) Counsel that both the NICN and an inferior body such as an arbitral Tribunal cannot have concurrent jurisdiction over trade disputes, including inter and intra union disputes. See also Umoren v Akpan (supra). [The emphasis is this Court’s.]
It is the settled position of the law that if a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo ll. v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S.C. (PT. II) 240. The trial Court, for the afore reasons, ought to have declined to entertain the claims of the Respondents as it lacked jurisdiction to entertain intra union disputes as a Court of first instance. If found that a Court had no jurisdiction to hear and determine a matter before it, then every order arising from proceedings conducted without jurisdiction amount to a nullity; ex nihilo nihil fit; Melwani v Five Star Industries Ltd (2002) 1 S.C. 120; Adesigbin v Military Governor of Lagos State (2017) LPELR-41666(SC). The proceedings and orders made by the lower Court without jurisdiction were therefore a nullity and can only be set aside. I would therefore resolve Issue (b) in favour of the Appellant.
97. I acknowledge that there is an older Court of Appeal that appears to go contrary to NASU v. Jacob (supra) but which was not cited in the said NASU v. Jacob. The case is Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA), which held that an inter and intra-union dispute is not a trade dispute for purposes of the dispute resolution processes of Part I of the TDA. The case, however, also held that an inter and intra union dispute will only go through the processes of Part I of the TDA if it qualifies as a trade dispute. But in National Union of Hotels and Personal Services Workers v. National Union of Air Transport Employees & anor unreported Suit No. NICN/ABJ/207/2018, the judgment if which was delivered on 4 July 2019, this Court distinguished RTEAN & ors v. Ajewole & ors which distinction applies with equal force here to make NASU v. Jacob more preferable, in spite of it being the more recent authority.
98. Particular note should be taken of the italicised portion of the quotation from the Court of Appeal above. The Court of appeal is quite specific that this Court and the IAP cannot have concurrent jurisdiction over trade disputes, including inter and intra union disputes. The Court of Appeal was also very specific in holding that the jurisdiction granted to the NIC by the Constitution and by statutory provisions as found in the NIC Act regarding trade disputes such as, inter and intra union disputes, is an appellate jurisdiction, exercisable after the said disputes have gone through the conciliatory and arbitration body. The Court of Appeal even cited section 254C(1)(j) of the 1999 Constitution and section 7(4) of the NIC Act 2006 in justification. What the claimant brought to this Court is a trade dispute dressed in the garb of an interpretation. Going by NASU v. Jacob & ors (supra), the Court of Appeal says that even this must go through the processes of Part I of the TDA. The claimant in the instant case also ought to go through the processes of Part I of the TDA before coming to this Court. I so hold. The claimant of course is at liberty to impress on the Minister of Labour to exercise his power under section 17 of the TDA and make a direct referral to this Court on this matter.
99. The claimant would after adoption of the addresses supply to this Court a case law authority it says is on all fours with the issues at hand, and which held that this Court not only have original jurisdiction but exclusive jurisdiction to determine all labour matters including trade disputes without recourse to inferior tribunals or administrative bodies. The authority is SSASCGOC & anor v. AUPCTRE unreported Suit No. NICN/ABJ/125/2019, the judgment of which was delivered on 17 December 2019 per Anuwe J. Although the claimant talked of Her Ladyship holding that this Court had original and exclusive jurisdiction over all labour matters including trade disputes without recourse to inferior tribunals, a reading of the decision reveals that Her Ladyship spoke of only “matters involving trade unions or arising from the Trade Unions Act”, “trade union disputes”, “disputes between trade unions” and “inter or intra union disputes”. All I can tell the claimant here is that SSASCGOC & anor v. AUPCTRE cannot withstand the Court of Appeal decision in NASU v. Jacob & ors (supra).
100. The claimant had argued that only the 1999 Constitution can now determine the jurisdiction of this Court. This is the import of its submissions in paragraphs 2.21 to 2.27 of its written address in opposition to the 3rd defendant’s preliminary objection. In particularly paragraph 2.25, the claimant submitted that:
…any reference to The National Industrial Court Act 2006 to determine the jurisdiction of this Court is of no moment from the day the Section 254C of the 1999 Constitution took effect. The only point of reference in search for the jurisdiction of this Court is the said Section 254C of the Constitution.
And in paragraph 2.27, the claimant stressed thus:
…the 3rd Alteration did not make any concession to section 7 of The National Industrial Court Act 2006. Instead the 3rd ALTERATION extracted what was acceptable from The National Industrial Court Act 2006 and discards those that were not in line with the Constitution. The 3rd ALTERATION is prospective and not retrospective and so could not have been creating allowance for an inferior Act of 2006…
101. Now, the opening words of section 254C(1) has the words, “…and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly…” By these words, the National Assembly can add to the jurisdiction of this Court. Is the NIC Act 2006 not an Act of the National Assembly? The argument of the claimant that the Third Alteration is prospective and not retrospective has no basis in the context of validating already existing law. The NIC Act 2006 as an existing law at the time the Third Alteration was promulgated enjoyed validation, so long as its provisions are not at variance with those of the Constitution. The claimant cannot say as it did that the Third Alteration took from the NIC Act 2006 what it liked and discarded the rest, when in truth there is nothing in the said ‘rest’ that goes contrary to any provision of the 1999 Constitution. I accordingly reject, and hence dismiss, that argument of the claimant. I so hold.
102. I now proceed to the second question: having held that the dispute between the parties in the instant suit is a trade dispute, is it same with NICN/ABJ/46/2018 where my colleague Agbakoba J declined jurisdiction on the ground that it was prematurely brought to this Court? In NICN/ABJ/46/2018, the parties were: Senior Staff Association of the Statutory Corporations and Government Owned Companies (SSASGOC) [claimant], National Identity Management Commission [1st defendant], Minister for Labour and Productivity [2nd defendant], and Association of Senior Civil Servants [3rd defendant]. These are the same parties in the instant suit both as claimant and as defendants.
103. As I pointed out earlier, only two questions were presented for determination in NICN/ABJ/46/2018, namely:
(1) Whether having regard to the provision of Sections 2 Rule 1(1) of the 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 the Statutory Corporations and Government Owned Companies (SSASGOC) is the Lawful Trade Union to organize the Senior Staff of the National Identity Management Commission.
(2) Whether the letter dated 24th November 2016 from the 2nd Defendant is valid under the law.
104. To the extent that question (1) for determination in NICN/ABJ/46/2018 seeks the determination of the question, “whether…the Senior Staff Association of the Statutory Corporations and Government Owned Companies (SSASGOC) is the Lawful Trade Union to organize the Senior Staff of the National Identity Management Commission”, that question is embedded in questions 1 to 6 brought for determination in the instant suit. I so find.
105. As regards question (2) i.e. “whether the letter dated 24th November 2016 from the 2nd Defendant is valid under the law”, I indicated earlier that the letter of 24 November 2016 is part of the documents attached to Exhibit OOC24 dated 17 December 2019 referred to in paragraph 3(z) of the affidavit in support of the originating summons in the instant suit. The said letter of 24 November 2016, a letter to the Director General/CEO of NIMC, written on behalf of the Minister of Labour, referred to the letter of 6 May 2016 (Exhibit OOC9 in the instant suit, which is central to questions 5 and 6 presented in the instant suit) and affirmed the instruction as per the letter of 6 May 2016 that the NIMC should continue to recognize the Association of Senior Civil Servants of Nigeria (ASCSN).
106. Everything about NICN/ABJ/46/2018 is embedded in the instant suit. The only difference is that the claimant in the instant suit brought additional grounds to litigate the question whether it is not the proper trade union to unionise senior staff of the NIMC and to collect the check-off dues thereof. To that extent, the instant suit is similar to NICN/ABJ/46/2018. As such, when Agbakoba J declined jurisdiction, the claimant ought to have gone through the processes of Part I of the TDA. NICN/ABJ/46/2018 was filed on 16 February 2018 and Agbakoba J declined jurisdiction on 15 March 2019. So since 2018, the claimant has wasted four years chasing shadows instead of the simple act of going through the processes of Part I of the TDA, under which they could have impressed on the Minister of Labour to make a direct referral to this Court given his power under section 17 of the TDA. Having to ask whether the Minster of Labour can amend statutes and other sundry questions it asked is merely playing smart and avoiding the inevitable. Since 2018, if the claimant had done the needful, this matter would have long been decided. It chose instead to a judicial rigmarole that will lead it to no where. The sad thing in all this is the judicial time that has been wasted in the process.
107. All of this said, I reiterate that this case is prematurely before this Court. The claimant should go through the processes of Part I of the TDA before coming to this Court in its appellate jurisdiction. I so hold.
108. And for the reasons already given, I will not go into the merit of the originating summons. I so rule.
109. Given that much judicial time has been wasted, the claimant must bear the cost of this suit, especially to the 2nd defendant. The 1st defendant did not enter any defence and so is not entitled to any cost. The claimant did not sue the 3rd defendant. The 3rd defendant asked to be joined and so is not entitled to any cost. Only the 2nd defendant is entitled to cost. Accordingly, cost in that regard is put at Three Hundred Thousand Naira (N300,000.00) only payable by the claimant to the 2nd defendant within 30 days of this judgment. Failure will attract 10% simple interest per annum until fully paid.
110. Judgment is entered accordingly.
……………………………………
Hon. Justice B. B. Kanyip, PhD