IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI
DATE: THURSDAY 5TH MAY 2022
SUIT NO: NICN/LA/265/2017
BETWEEN
UNION OF TIPPER & QUARRY EMPLOYERS OF NIGERIA CLAIMANT
AND
1. NATIONAL UNION OF ROAD TRANSPORT WORKERS
OGUN STATE CHAPTER
2. ALH. AKEEM ADEOSUN (aka JANGO) CHAIRMAN
NATIONAL UNION OF ROAD TRANSPORT WORKERS OGUN STATE DEFENDANTS
Representation:
Audu Augustine for the Claimant
Chief J O Apanishile for the Defendant
JUDGMENT
Introduction and Claim:
1. On 1st day of June, 2017, the Claimant filed this suit via the General Form of Complaint, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s witness on oath, verifying Affidavit, List of Document; all dated the same 1st day of June, 2017 and copies of the documents to be relied on by Claimant at the trial of this suit. The Claimant claims against the Defendant as follows:
1. A DECLARATION that it is the sole responsibility of the Claimant as legally guaranteed and within its jurisdictional scope as conferred by the Department of Trade Union Services of the Federal Ministry of Labour to unionise tippers/trucks owners and employers in the quarry industry/sector in Nigeria.
2. A DECLARATION that the various acts of the defendants in unionizing drivers of tippers/trucks in quarry sectors at various sites in Ogun State and ticketing these drivers without the consent or approval of the Claimant amount to usurpation of the functions, powers and duties of the claimant.
3. AN ORDER restraining the defendants, its agents, privies, or assigns from carrying out the functions and duties of the claimant and or encroaching on the jurisdictional scope of the Claimant in whatever guise and in any manner whatsoever.
4. AN ORDER directing the Defendants to pay or remit the ticket fees, and other money illegally obtained from the Claimant’s members from January 2014 till the date of determination of this suit.
2. In response to the Claimant’s claims against the Defendant, the Defendants filed a Statement of Defence on the 18th of January 2018. However, the Defendants failed to call evidence in support of the case stated in their statement of defence. On the 21st of May 2018, the Defendants filed an application raising issues on the jurisdictional competence of this Court to entertain this suit. The application sought; among other things, for:
(ii) AN ORDER striking out the Claimant’s suit against the Defendants in its entirety as this Honourable Court lacks jurisdiction to entertain same.
(iii) AN ORDER striking out the name of the 1st and 2nd Defendants on record as parties to this action.
The grounds upon which the application was brought are that:
1. The cause of action is incompetent not being a trade dispute within the contemplation of the Trade Disputes Act 2004. The Trade Unions Act 2005 (as amended), section 254(C) of the CFRN 1999 (as amended), the NIC Act 2006 and Order 1 Rule 10(1),(2) of the NIC (Civil Procedure) Rules 2017.
2. The Cause of action is incompetent the Claimant being in breach of and noncompliant with the conditions precedent outlined in Part I, sections 1(1)(2),4(2) and 6(1),(2), 7(1), (2)(a-b), 8(1)-(3), (5), 9(1)-(7) and 14 of the Trade Dispute Act 2004 before commencing this action.
3. The action is incompetent against the 1st Defendant who is not a corporate entity known to law within all extant law – statutory and procedural – capable of suing or being sued in relation to the cause of action herein, it not being a registered trade union or otherwise a juristic personality.
4. The action is incompetent against the 2nd Defendant he not being the Ogun State Chairman of a non existing legal personality to wit: the 1st Defendant which is a non-juristic personality.
5. The action is incompetent against the 2nd Defendant against whom no cause of action has been disclosed in relation to the claims and reliefs sought by the Claimant in this action.
6. The action in constitution and subject matter is not within the jurisdiction of this Honourable Court.
7. The action is not maintainable as constituted against the Defendants on record.
3. The case of the Defendants/Applicants in the application is that the matter is not related to any of the customary issues associated with or connected to employment in work place which is within the jurisdiction of this Court. That the Claimant did not take necessary step to settle the matter amicably in accordance with the provision of the extant laws relevant thereto and did not communicate any result of any such venture to the Minister of Trade and Labour. That from the face of the Originating Processes, the Defendants are not juristic entities by virtue of not being a registered Trade Union and was only created by Claimant for the purpose of this case. That the Claimant had failed to show how the matter was linked to the 2nd Defendant as being the Chairman of a fictitious entity; and how the 2nd Defendants are liable to the reliefs sought in Paragraphs C&D in the Statement of Facts for a non -existing 1st Defendant.
4. In the Defendants/Applicants written address in support of the application, the Defendants argued that the Court lacks jurisdiction to entertain this suit being that the cause of action is not within section 254(C) (1) (a)-(j), (i)- (vii), (k)-(l) (i)-(iii), (m) (2)-(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by (the Third Alteration Act 2010), and the National Industrial Court Act 2006. The Claimant also argued that the 1st Defendant is not known to law because it is not a registered entity as required by law.
5. The Claimant filed a counter affidavit to the application and a written address in support. The case of the Claimant/Respondent is that the matter is a Union Dispute and not a Trade Dispute or related to employment; thus the Claimant is not bound to comply with the conditions laid down in part 1 of the Trade Disputes Act. The Claimant submits that the right parties have been sued in this case. In their argument in support of the Counter-affidavit, the Claimant/Respondent argued that the Court has to entertain this matter being that it falls within section 254(C) (1) (a)-(j), (i)- (vii), (k)-(l) (i)-(iii), (m) (2)-(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended by (the Third Alteration Act 2010) relying on the case of Oniga v. Govt of Cross River State & Anor (2006) LPELR-40112 (CA). The Claimant/Respondent also argued that the condition stated in part 1 of the Trade Disputes Act does not apply to this matter; relying on the case of N.U.R.T.W v. R.T.E.A.N (2001)14 NWLR (PT.733)313. The Claimant/Respondent further submits that the right parties are before the Court and that the Ogun State Chapter and the description of the 2nd Defendant was for easy identification of the particular branch and the person involved in the suit. Relying on the case of Senior Staff of Nigeria University v Federal Government Of Nigeria (2008) 12 NLLR (PT. 33)407 where the Court held that a branch of a Union can commence and maintain an action before the Court.
THE CASE OF THE CLAIMANT IN THE SUBSTANTIVE SUIT
6. It is the case of the Claimant that it was registered under the Trade Union Act and empowered under the provision of the Act to organize the class of people that engage and operate in the quarry business. That, as part of its operational mandate, it was given a jurisdictional scope within which to operate just like every other registered Union. That the 1st Defendant is also a registered Union, but with an operational scope as given by the Ministry of Labour. That the Defendants failed to limit themselves to their operational scope, and willfully and persistently continued to encroach on the Claimant’s scope; usurping the powers, duties and functions of the Claimant. The Claimant and the Defendants had series of meetings with the officials of the ministry who encouraged everyone to work within its scope and ensure that there is industrial harmony among the Unions. Despite this advice, the Defendant continued to encroach, harass, intimidate and usurp the powers of the Claimant; giving rise to this suit.
7. Trial commenced in the suit on the 1st of November, 2018. The Claimant called two witnesses and a subpoenaed witness from the Ministry of Labour. During the examination in chief, the Claimant tendered in evidence; the following exhibits:
1 Claimant’s Certificate of Registration -Exhibit C1
2 Issuance of Certificate of Registration to Union of Tipper and Quarry Employers of Nigeria Letter dated 11th April, 2013- Exhibit C2
3 Gazette of the Federal Government dated 17th January, 2013- Exhibit C3
4 Inauguration of Executives of Ogun State Chapter of the Union of Tipper and Quarry Employers of Nigeria dated 24/01/2017-Exhibit C4
5 Letter from the Federal Ministry of Labour dated 11th March 2014 captioned “JURISDICTIONAL SCOPE OF OPERATION” from the Federal Ministry of Labour and Productivity dated 11th March, 2014- Exhibit C5
6 Letter from the Federal Ministry of Labour dated 24th January, 2017- Exhibit C6
7 Ogun State parks and garages Development Board (PAGADEB) letter dated 4th April, 2017- Exhibit C7
8 Resolution at a meeting dated 8th February, 2017- Exhibit C8
9 Letter dated 12th January, 2017- Exhibit C9
10 Copies of ticket issued to the Claimant’s members by the Defendants- Exhibit C10
11 Letter from the Federal Ministry of Labour and Productivity dated 03/7/2017- Exhibit C11
12 Letter from the Defendant’s Counsel dated 26/8/2016 to the FRSC- Exhibit C12
13 Constitution of the Claimant- Exhibit C13
14 Letter dated 7/6/2019 from the Ministry of labour- Exhibit C14
8. The Claimant’s first witness CW1 Mr. Sunny Adewale was partly cross examined by the Defendant’s Counsel. The CW2 Comrade (Elder) Yinka Olodude and the subpoenaed witness from the Ministry of Labour were not cross examined as the Defendants’ Counsel failed to be in Court to cross-examine. Their right to cross examine the witnesses was foreclosed on the 24th of November, 2021.
SUBMISSONS ON BEHALF OF CLAIMANT
9. The Claimant in his Final Written Address raised three issues for determination:
i Whether from the totality of evidence before this Court, the Claimant is the rightful union legally recognized and empowered to unionize tippers/truck owners and employers in quarry industry/sector in Nigeria.
ii. Whether the acts of the Defendants in unionizing drivers and owners of trucks/tippers in quarry sector and ticketing same does not amount to usurping the powers, duties and functions of the claimant.
iii. Whether the claimant is entitled to the reliefs sought in the complaint and statement of facts before the court.
10. On Issue One, the Claimant argued that cumulative reading of the contents of exhibits C1, C2, C3, C4, C5 & C6, would reveal that the Claimant is a registered trade union. The Claimant argues that the registration and recognition of the Claimant as a registered trade union has been given a legal confirmation in SUIT NO: NICN/AWK/25/2018 between Mr. Ndidi Okoagbor (for himself and on behalf of the Union of Tipper & Quarry Employers of Nigeria) v. National Union of Road Transport Workers & Anor (Judgment delivered on the 24th February, 2020). The Claimant submits that the Defendants throughout the pleadings and trial before the Court, never challenged the registration and status of the Claimant as a registered trade union; and that it is clear from the Constitution of the Claimant and the 1st Defendant’s to determine the duties of the Claimant and the Defendant.
11. On issue two; whether the acts of the Defendants in unionising drivers and owners of trucks/tippers in quarry sector and ticketing same does not amount to usurping the powers, duties and functions of the Claimant? The Claimant argued that Exhibit C9 (copies of tickets issued to the Claimant’s member by the Defendant) suggested that the Defendant is usurping the duties of the Claimant.
12. On issue three; whether the Claimant is entitled to the reliefs sought in the complaint and statement of facts before the Court; the Claimant argues that it has been able to prove that it is the only registered union in the industry that has the duty to unionise tippers and truck drivers within the quarry sector. The Claimant argues that though the Defendants filed their Statement of Defence, they failed to lead evidence to prove their case. The Claimant submits that pleadings do not constitute evidence, and where such pleading is not supported by evidence either oral or documentary, it is deemed to have been abandoned. The Claimant relied on the case of Newbreed Organisation Ltd v. Erhomosele (2006)5 NWLR (PT 974) 499.
DECISION
13. I read carefully and considered the processes filed in this suit, the evidence led, the written submissions and authorities cited in the final address. I also heard the evidence of the three witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all these, I set a lone issue down for determination:
· Whether the Claimant is entitled to the reliefs it seeks in this suit.
14. Before delving into the issue set down for determination of this suit; it is pertinent to determine the preliminary objection raised by the Defendants. The Defendants contend that this Court lacks jurisdiction to hear this suit; and that the Defendants should be struck out as parties to this suit. After considering the grounds upon which the objection is brought, and the arguments of Counsel; I set the following issues down for determination of the Objection:
(i) Whether the cause of action is incompetent (not being a trade dispute).
(ii) Whether the action is incompetent against the 1st Defendant.
(iii) Whether the action is incompetent against the 2nd Defendant.
(iv) Whether the action in constitution and subject matter is within the jurisdiction of this Court.
15. Issue one set down for the determination of the Preliminary Objection is derived from grounds one and two of the Notice of Preliminary Objection. According to the Defendants:
1. The cause of action is incompetent not being a trade dispute within the contemplation of the Trade Disputes Act 2004. The Trade Unions Act 2005 (as amended), section 254(C) of the CFRN 1999 (as amended), the NIC Act 2006 and Order 1 Rule 10(1),(2) of the NIC (Civil Procedure) Rules 2017.
2. The Cause of action is incompetent the Claimant being in breach of and noncompliant with the conditions precedent outlined in Part I, sections 1(1)(2),4(2) and 6(1),(2), 7(1), (2)(a-b), 8(1)-(3), (5), 9(1)-(7) and 14 of the Trade Dispute Act 2004 before commencing this action.
16. A close scrutiny of the two grounds of the objection reproduced above; presents a contradictory position by the Defendants. The Defendants first assert that the cause of action is not a trade dispute within the contemplation of the Trade Disputes Act, the Trade Unions Act, section 254(C) of the CFRN (as amended), the NIC Act 2006 and Order 1 Rule 10(1),(2) of the NIC (Civil Procedure) Rules 2017; and then in paragraph two, state that the cause of action is incompetent for being in breach of Part I of the Trade Disputes Act. Apart from the fact of referring to the Trade Unions Act 2005 (as amended), section 254(C) of the CFRN 1999 (as amended), the NIC Act 2006 and Order 1 Rule 10(1),(2) of the NIC (Civil Procedure) Rules 2017 in its first ground of objection, the Defendants did not show how the provisions of these statutes were violated. Secondly, if the cause of action is not a trade dispute as contended by the Defendants in their first ground of objection, then this suit will not be expected to undergo the process which the Defendants contend it should, under their second ground of objection.
17. Despite the imprecise content of the first two grounds, I want to presume that the ground two suggests a contention by the Defendants that this cause should have undergone the requirements of Part 1 of the Trade Disputes Act. I had cause to consider the issue of whether a cause founded on the unionisation of staff is a trade dispute in the case of Senior Staff Association of Electricity and Allied Companies v. National Union Of Electricity Employees Suit No. NICN/LA/375/2017 Ruling delivered on 10th July 2018. The issue was, just like in this case, whether this Court has jurisdiction, considering, as argued by the Defendant, that the Claimants did not exhaust the conditions precedent to bringing a suit before this Court, as provided in the Trade Disputes Act. I noted that apart from the fact that section 21 of the Trade Disputes Act has been repealed by the NIC Act; a reference to the NIC Act shows that it did not use the term inter-union disputes. However, it did refer to disputes between employers and employees respective organisations as shown below:
(a) the employment or non-employment of any person;
(b) terms of employment and physical conditions of work of any person;
(c) the conclusion or variation of a collective agreement; and
(d) an alleged dispute.
18. I noted that a holistic reading of Part 1 of the TDA did not suggest an inclusion of intra and inter-union disputes within the purpose of that part of that law. I stated that an inter-union dispute being a dispute arising from the organization and running of trade unions as laid down in the unions’ constitution was different from a trade dispute as defined above. I stated that in its adjudication over trade unions as provided in Section 7(1)(a)(i) of NIC Act; where the issues relate to trade disputes, the Trade Disputes Act come into play as the NIC Act while repealing certain aspects of the Trade Disputes Act, saved chapter 1 of the Trade Disputes Act. In that case of (Senior Staff Association of Electricity and Allied Companies v. National Union Of Electricity Employees (Supra)), I referred to the Court of Appeal’s decision in Power Holding Company of Nigeria PLC & Anor v. Attorney General Sokoto State & Anor (2014) LPELR-23825(CA) which stated the conditions that need to exist for a cause to be regarded as a trade dispute:
The provisions of Section 47 of the Trade Dispute Act has been judicially construed in plethora of cases. In the case of National Union of Road Transport Workers v, Ogbodo & Ors (1998) 2 NWLR (Pt. 537) 189 Tobi JSC, (as he then was) held as follows: "From the wordings of Section 47 it is clear that the following ingredients are not only necessary but inevitable: (a) There must be a dispute (b) The dispute must involve a trade (c) The dispute must be between i. Employers and workers, or ii. Workers and workers (d) The dispute must be connected with i. The employment or non-employment or ii. the terms of employment and physical condition of workers of any person". Thus, where none of the relationship as outline above exist as in the instant case, such claim is not a trade dispute within the contemplation of Section 47 of the Act." Per SHUAIBU, J.C.A. (Pp. 41-42, paras. E.
19. This Court in many cases has held that intra and inter union disputes are subject to the Part 1 of the TDA. Those cases were predominantly pre-3rd Alteration to the CFRN cases; and recently, cases where the Court found that the elements of a trade dispute existed in the intra and inter union disputes. See for instance the case of Uzoaru & Anor v. Dangote Cement Plc. 6 Anor (2013) 31 N.L.L.R (Pt.89) Pp.314-315 where Obaseki-Osaghae J, held that this Court lacked jurisdiction as a Court of first instance after finding that there was a trade dispute as all the elements of a trade dispute existed in that case. In the case of Comrade Okandeji Fidelis v. Comrade Igwe Achuzie anor NICN/LA/153/2011 delivered on the 18th April 2012 His Lordship Obaseki-Osaghae held that:
A careful look at the complaint and statement of facts reveals that the claimant/respondent is complaining that without being given a fair hearing in breach of the rules of natural justice, or the procedure provided in the constitution of NUPENG being followed, he was removed by the National Executive Council (NEC) of NUPENG as the branch chairman of the Shell branch of NUPENG and zonal vice chairman of the Warri zonal council of NUPENG and expelled from the union. The claimant/respondent is challenging his expulsion from the union. The processes of Part 1 of the TDA are in relation to trade disputes and workers who are under a union.
This matter is not a trade dispute within the meaning given in the Interpretation section of the TDA. Rather, it is a matter that falls squarely within the purview of section 7 (1) (a) (i) & (c) (iv) of the National Industrial Court Act 2006 and as such, the claimant can access this court directly.
20. Also, in the case of John B. Gberesuu v. National Union of Petroleum & Anor Suit No: NICN/ABJ/188/2012 Ruling of which was delivered on 2017-02-06 per Hon. Justice E. N. Agbakoba, where the jurisdiction of the Court to entertain the suit was challenged on the same grounds as in this suit, this Court held; after referring to the jurisdiction of this Court as contained in Section 254(C)1 of the 1999 Constitution and section 7(1) of the NIC Act that:
This means that this court has the exclusive jurisdiction to determine civil causes and matters relating to trade unions by Section 254 (1) of the 1999 Constitution and Section 7(1) (a) and (c)(iv) of the National Industrial Court Act 2006. The jurisdiction of this court is subject matter based. The defendants have argued that the claimants are required to go through the procedure of mediation, conciliation and arbitration provided in Part 1 of the Trade Dispute Act Cap T8 LFN 2004. Section 48 of the Trade Dispute Act Cap T8 LFN 2004 provides that 'trade dispute means any dispute between employers and workers or between workers and workers which is connected with employment or non- employment, or terms of employment and physical condition of work of any person…
I find that the claimants are complaining that in breach of the constitutional provisions, the procedure provided in the Union Constitution, and the Petrol tanker Drivers Bye Laws the defendant have prevented the claimants from emerging as union heads. The claimants are therefore challenging their exclusion for union leadership by unconstitutional means.
I find that this matter is not a trade dispute within the interpretation of the TDA, as to require subjecting the matter to Part 1. I find, instead that it is a matter squarely within the realm of Section 254 C (1) (d) of the 1999 CFRN as amended and Section 7 (a) (i) and (c) of NICA 2006 and as such the claimant can access this court directly. See the unreported cases of NICN/LA/153/2011 Comrade Okandeji Fidelis v. Comrade Igwe Achuzieanor delivered on the 18th April 2012, and NICN/LA/26/2012 George Uzoaru Anor v. Dangote Cement PLC Anor delivered on 25th May 2012.
21. The Court of Appeal affirmed this position in the case of Road Transport Employers Association of Nigeria (RTEAN) & Ors v. Mr. Olufemi Ajewole & Ors (2016) LPELR-41271(CA); the Court of Appeal held that:
Applying this principle of interpretation to the provisions of Part 1 of the Trade Disputes Act it is clear that they apply only what is referred to as a "trade dispute", and not to any other type of dispute. This Court notes that Section 2 of the Trade Disputes Act states that "no person shall commence an action, the subject matter of a trade dispute or any other inter or intra union dispute in a Court of law and it proceeded to abate all pending actions in all Court prior to the commencement of the Section and it made contravention of the provision a punishable offence. The Section was added by the Trade Disputes (Amendment) Act of 1992. Reading this provision along with the other provisions in Part 1 of Trade Disputes Act, it is completely incongruous and out of place. Section 1 of the Trade Disputes Act is very clear that the provisions in Part 1 relate only to trade disputes, and made no mention of inter or intra union disputes, and this provision was not amended even when Section 2 was added to the Act. It is a settled principle of construction of Statutes that where a Section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included - Udoh Vs Orthopaedic Hospitals Management Board (1993) 7 SCNJ 244.
Also, the definition of "trade dispute" in Section 48 of the Act was also not expanded to include inter or intra union disputes. The law is settled that once a Statute defines a word, phrase or term, the Court cannot go outside the Statute to seek a meaning of that word, phrase or term not contained in the definition in the Statute - Uhunmwangho Vs Okojie (1989) 5 NWLR pt 122) 471. Kalu Vs Odili (1992) 6 SCNJ 76 and Shettima Vs Goni (2011) 18 NWLR (pt 1279) 413. Thus, any dispute that does not come within the definition of trade dispute in Section 48 of the Trade Disputes Act is not amenable to and/or covered by the provisions of Part 1 of the Trade Disputes Act.
It is obvious that Section 2 of the Trade Disputes Act, 2004 was inserted to remove the jurisdiction hitherto possessed by the High Court and the Federal High Court over trade disputes and inter and intra union matters, it was not for the purpose of making inter and intra union disputes amenable to settlement procedure in Part 1 of the Trade Disputes Act - Udoh Vs Orthopaedic Hospitals Management Board supra, National Union of Road Transport Workers Vs Ogbodo (1998) 2 NWLR (Pt 537) 189, Ekong Vs Oside (2005) 9 NWLR (Pt 929) 102 and Umoren Vs Akpan (2011) 22 NLLR (pt 62) 264. The sting has been taken out of the Section by the provisions of Sections 53 (2) and 53 (3) of the National Industrial Court 2006 which subjected the provisions of the Trade Dispute Act to the overriding provisions of the National Industrial Court Act and some of which are Section 7 which vests exclusive jurisdiction over some matters in the National Industrial Court and Sections 16 to 19 which grant only the National Industrial Court powers to make certain orders.
22. In the case of Road Transport Employers Association of Nigeria (RTEAN) & Ors v. Mr. Olufemi Ajewole & Ors, the Court of Appeal concluded that in the spirit of harmonious interpretation of Sections of a Statute, an inter or intra union dispute would only be covered by the provisions of Part 1 of the Trade Disputes Act if the nature of the dispute therein comes within the nature of the disputes said to constitute trade dispute under Section 48 of the Act. Once the complaint of a Claimant is not a trade dispute, it cannot be caught by Section 7 (3) of the National Industrial Court Act, 2006 - First Marine Engineering Services Ltd Vs National Union of Petroleum & Natural Gas Workers (2011) 23 NLLR (Pt 65) 283. Per ABIRU, J.C.A. (Pp. 28-32, Paras. A-B) –
The position is that in such instances, sending such matters to go through the conciliation and arbitration process is a complete waste of time and that it is a matter that the National Industrial Court should take in its original jurisdiction - Ugwu v. Ogboso (2010) 21 NLLR (Pt 58) 164 and Aghwefeada v. Asemota (2011) 22 NLLR (Pt 63) 413.
24. However, since after my Ruling in Senior Staff Association of Electricity and Allied Companies v. National Union Of Electricity Employees SUIT NO. NICN/LA/375/2017 delivered on 10th July 2018, this Court has had cause to consider the occurrence of trade disputes in the context of intra and inter union disputes over jurisdictional scopes of the unions; and as requiring parties to go through the ADR processes stated in part 1 of the Trade Disputes Act. 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 of which was delivered on 4th July 2019, his Lordship, BB Kanyip, the President of NICN distinguished Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors.(Supra) and found that a trade dispute existed in the context of dispute over jurisdictional scope of trade unions, as being invariably a dispute over check-off dues; which affects the conditions of employment of the workers. His Lordship held as follows:
42. I have carefully considered the processes filed and the submissions of the parties. There are two issues to resolve: the issue as to jurisdiction in terms of the 1st defendant’s preliminary objection and the issue raised suo motu on the one hand; and the merit of the case. In dealing with the issue of jurisdiction, I will start with the issue raised suo motu by the Court i.e. whether the dispute in this suit is not a trade dispute for which the processes of Part I of the Trade Disputes Act (TDA) 2004 should first be exhausted before the jurisdiction of this Court in its appellate jurisdiction can be activated. In other words, whether the claimant is right to have activated the original jurisdiction of this Court in filing this case as it did. Only the 1st defendant argued that the dispute in this case is a trade dispute. The claimant and the 2nd defendant argued otherwise, relying heavily on Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA), a case that held that inter and intra union dispute is not a trade dispute for purposes of the dispute resolution processes of Part I of the TDA; and that once the complaint of a plaintiff is not a trade dispute, it cannot be caught by section 7(3) of the National Industrial Court (NIC) Act 2006. Even here, the claimant argued as if what the Court raised as an issue was that the matter should go to the Industrial Arbitration Panel (IAP). For this, I only need to state that case law holds that an agreement to submit to arbitration does not oust the jurisdiction of the court. It only postpones resort to litigation before the court. See City Eng. (Nig.) Ltd. v. FHA [1997] LPELR-868(SC); [1997] 9 NWLR (Pt. 520) 224; [1997] All NLR 1; Messrs NV Scheep v. MV’s Araz [2000] 12 SC (Pt. 10) 154 at 213 and Mekwunye v. Lotus Capital Ltd & ors [2018] LPELR-45546(CA). That section 7(3) of the NIC Act 2006 enjoins conciliation and arbitration does not mean that the NIC has been ousted. Section 7(3) of the NIC Act only postpones coming to the NIC until conciliation and arbitration have been concluded.
43. Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors, however, also held that an inter or intra union dispute would only be covered by the provisions of Part I of the TDA if the nature of the dispute therein comes within the nature of the disputes said to constitute trade dispute under section 48(1) of the TDA. And this is where the problem lies. Section 48(1) of the TDA 2004 defines “trade dispute” as meaning “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”. There are three things to note with this definition. The first is the use of the phrase ‘any dispute’. ‘Any’ according to the New Oxford American Dictionary is “used to refer to one or some of a thing or number of things, no matter how much or many” and “whichever of a specified class might be chosen”. So section 48(1) of the TDA did not even restrict the type of dispute. The second is the use of the word “employers” in plural, which denotes more than one employer. I am not unmindful of the rule under the Interpretation Act which holds that the singular includes the plural. But a dispute where employers are involved with workers is often one that is an inter-union dispute as it sure involves their respective unions. The third is that a dispute between workers and workers (once again note that the word ‘workers’ is used in the plural) is a trade dispute; and disputes between workers and workers is always an intra or inter union dispute depending on whether the workers are of the same union or not. To reinforce this, section 54(1) of the National Industrial Court (NIC) Act 2006 has expanded this definition to include disputes between the respective organizations of employers and employees. It needs to be pointed out that organization is the generic name of a trade union or senior staff and employers associations. This is the reason that section 54(1) of the NIC Act 2006 defines “organization” to include a trade union or an employers’ association. This means that a dispute between the respective organizations of employers and employees would mean inter or intra union disputes, as the case may be. So, when Decree 47 of 1992 added inter and intra union disputes in Part I of the TDA, it was for emphasis since the High Courts assumed jurisdiction over such disputes. There was thus the need to specifically grant jurisdiction over such disputes to the NIC.
44. The very definition of a trade union under the TUA provides insight into the point I seek to make. Section 1(1) of the TUA defines a trade union in these words:
“trade union” means any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether its purposes do or do not include the provision of benefits for its members.
From this provision, the primary purpose of trade unions is the regulation of terms and conditions of employment of workers. Subsection (2) of course permits other purposes so long as the said other purposes are lawful, are authorized by the trade union’s rules and are for the benefit of the members of the trade union, subject to the ban for application of funds for political purposes. However, the fact that an agreement has been reached between an employer and persons employed by him as to terms and conditions of that employment is not sufficient reason for a verdict that thereby a trade union has been formed. See section 1(3)(a) of the TUA. This is understandable because registration under the TUA by the Registrar of Trade Unions is a prerequisite for the formation of a trade union. See sections 2(1) and 3(1) of the TUA. Since the primary purpose of a trade union is the regulation of terms and conditions of employment, would a dispute within a trade union (intra-union dispute) and that between trade unions (inter-union dispute) not logically be one over terms and conditions of employment and so a trade dispute within the definition of the term under section 48(1) of the TDA and section 54(1) of the NIC Act 2006? I think so. Even disputes such as strikes over increase in price of fuel by workers, which would meet the International Labour Organization’s (ILO’s) allowance that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions posed by the major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living even when this is not strictly speaking a trade dispute in the real sense of the word. See FGN & anor v. NLC & anor unreported Suit No. NICN/ABJ/179/2016, the judgment of which was delivered on 15th July 2016.
45. This aside, the factual matrix is that in certain categories (as where the dispute within a trade union or between trade unions is over conditions of service where such is being negotiated with an employer), are inter and intra union disputes not even for that fact alone trade disputes given the expanded definition of a trade dispute in section 54(1) of the NIC Act 2006? Today, by sections 53 and 54(4) of the NIC Act 2006, the TDA is to be interpreted in a way that brings it in conformity with the NIC Act, and where there is conflict, the NIC Act predominates. The Court of Appeal in Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors acknowledged this point. The definition of a trade dispute under the NIC Act, like I pointed out earlier, includes a dispute between the respective organizations of employers and employees and Federations which is connected with the employment or non-employment of any person, terms and conditions of employment and physical conditions of work of any person, the conclusion or variation of collective agreement, and an alleged dispute.
46. Now, very often, as is the instant case, especially inter-union trade unions’ dispute is one over unionization and jurisdictional scope, and that within a trade union (intra-union dispute) is one over check off dues. The right to belong to a trade union is constitutional and statutory (section 40 of the 1999 Constitution and section 1(1) of the Trade Unions Act, which defines a trade union as a combination of workers or employers the purpose of which is to regulate terms and conditions of employment), and the right to deduct check-off dues as of other deductions from a worker’s wages is statutory (section 16A of the TUA and section 5(1), (2), (3) and (4) of the Labour Act). These rights are implied in and so are part and parcel of the terms and conditions of employment of all employees/workers. The law did not deem it fit to leave it to the vagaries of employers’ conditions of service. So, if these rights are implied into terms and conditions of service, why would a dispute over them not be a trade dispute within the definition of a trade dispute especially given the definition of the term in section 54(1) of the NIC Act? This being so, I only need to make a finding to that effect and I will be perfectly within the holding of the Court of Appeal in Road Transport Employers Association of Nigeria & ors v. Mr Olufemi Ajewole & ors to the effect that “an inter or intra union dispute would only be covered by the provisions of Part I of the TDA if the nature of the dispute therein comes within the nature of the disputes said to constitute trade dispute under section 48 of the TDA”. Even if the view is taken that the present definition of a trade dispute in section 48 of the TDA does not cover inter and intra union disputes (which I doubt and hence hold otherwise in virtue of the use of the phrase “any dispute between employers and workers or between workers and workers”), the point must be made that the definition of “trade dispute” in section 48 of the TDA must defer to that in section 54(1) of the NIC Act in virtue of sections 53 and 54(4) of the NIC Act. For all the reasons given, I find and hold that the instant dispute between especially the claimant and the 1st defendant over who can unionise the workers of the 2nd defendant is a trade dispute. And I arrive at this finding and holding despite that my brother Tijjani J of this Court in Newrest ASL Nigeria Plc v. National Union of Air Transport Employees Suit No. NICN/LA/63/2018 as per the judgment of 22nd June 2018 arrived at a different conclusion.
25. It is instructive to note that in coming to the above decision, the PNICN had been referred to my Ruling in Senior Staff Association of Electricity and Allied Companies v. National Union of Electricity Employees (Supra) and therefore had it in perspective in the dictum above. The Court had noted that:
15. The claimant submitted that the law is now settled that the issue of jurisdictional scope of a trade union is of law which can only be determined by a competent court and, therefore, there is no need for the this dispute to be submitted to the jurisdiction of the Industrial Arbitration Panel lAP. In other words the law as of today in line with recent authorities is that the lAP has no jurisdiction over the determination of jurisdictional scope of a trade union, referring to the Judgment of this Court delivered by His Lordship Hon. Justice Mustapha Tijani on the 22nd of June 2018 in Suit No. NICN/LA/63/2018 Newrest ASL Nigeria Plc v. NUATE (unreported), the ruling of this Court delivered by Hon. Justice E. A Oji, PhD on 10th July 2018 in Suit No. NICN/LA/375/2017 Senior Staff Association of Electricity and Allied Companies v. NUEE and RTEAN & ors v. Mr Olufemi Ajewole & ors [2016] LPELR-41271(CA). It is thus the claimant’s submission that this Court has the exclusive jurisdiction to hear and determine civil causes and matters relating to trade unions by virtue of section 254C(1) of the 1999 Constitution and section 7(1)(a) and (c)(iv) of the National Industrial Court (NIC) Act 2006. That this Court ought to assume jurisdiction in determining this suit as the refusal to do so questions the very foundation for which courts of law were established by the Constitution, referring to section 6(6)(b) of the 1999 Constitution.
26. In the very recent case of in Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) v. Hon. Minister of Labour & 2 ors unreported Suit No. NICN/ABJ/39/2021, the judgment of which was delivered on 10 March 2022; His Lordship BB Kanyip(PNICN) again had cause to consider this same issue of intra-inter union disputes as a trade dispute. He referred to the Court of Appeal decision in Non-Academic Staff Union of Educational and Associated Institutions v. Aniah Jacob & ors [2020] LPELR-49951(CA) where the Court of Appeal 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.
27. Commenting in Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) v. Hon. Minister of Labour & 2 ors unreported Suit No. NICN/ABJ/39/2021, the judgment of which was delivered on 10 March 2022, this is what this Court per BB Kanyip PNICN said especially of both RTEAN & ors v. Ajewole & ors (supra) and NASU v. Jacob in paragraphs 97 and 98:
[97] I acknowledge that there is an older Court of Appeal [case] 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 [of] 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…
28. Further again, in the more recent case of Road Transport Employers’ Association of Nigeria (RTEAN) v. Comr. Celestine Afam Anere & Hon. Minister of Labour and Employment Suit No: NICN/ABJ/269/2021 judgment delivered on 28/4/22 per BB Kanyip PNICN, again held that:
Given the analysis of the case law authorities (and the reasons adduced therein) NASU v. Jacob & ors (supra) is to be preferred over RTEAN & ors v. Ajewole & ors (supra). NASU v. Jacob & ors (supra) in the main affirms the consistent position of this Court that trade disputes, inter union disputes and intra-union disputes must go through the dispute resolution processes of Part I of the TDA before coming to this Court. In other words, the jurisdiction of this Court in such disputes is appellate, not original. The only outstanding issues are interpretation disputes and trade union election disputes, over which this court had all along held that it has original jurisdiction.
29. Going by the distinguishing findings in all the above cited cases, I hold that this suit is premature; being a trade dispute and having not gone through the processes stated in part 1 of the Trade Disputes Act. This Court lacks jurisdiction to hear this suit at this stage. This suit is therefore struck out. However, in the event of an appellate reversal of the holding of this Court that the case is premature, I shall proceed to determine the other issues set out for determination in this suit.
ISSUE 2
30. Issue two is whether this suit is incompetent against the 1st Defendant. The Defendants contend that this suit is incompetent against the 1st Defendant who is not a corporate entity known to law within all extant law – statutory and procedural – capable of suing or being sued in relation to the cause of action herein, it not being a registered trade union or otherwise a juristic personality. This ground questions the competence of the Claimant, being a branch of the registered trade union, in bringing this suit. I must state that it is a recognised practice of this Court to allow branches of trade unions to sue and be sued before it. This is because collective agreements are most often entered into between branches of unions in various employments. In Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria [2008] 12 NLLR (Pt. 33) 407, this court held as follows
The respondent's contention is that the appellant is not a registered trade union and so should not be recognised by this court and given a hearing. We must at once reject this contention. By item 17 of Part C of the Third Schedule to the TUA, as amended, the Senior Staff Association of Universities, Teaching Hospitals, Research Institutes and Associated Institutions is recognised as a senior staff association and hence is a trade union. The appellant in this matter is a variant of that association.
Since inception, this court has recognised the right of branch/unit unions to access this court in order to have their peculiar grievances redressed without the necessity of the parent unions dragged to court. A collective agreement was duly signed between the appellant and the respondent. That agreement is not being disputed. It is late in the day for the respondent to call to question the status of the appellant when it was with the same appellant that it signed an agreement, Exhibit 1, with in 2001.
31. As stated in Dr O. Odusote & Dr I. O. Durojaiye (Suing for themselves and behalf of the Medical Guild) v. Lagos State Government & Ors. Suit No: NICN/LA/158/2012 per BB Kanypi J(as he then was, now PNICN), “this Court has always permitted non-juristic persons in this Court, but I must state only within the context of trade union branches of chapters”. In Oyo State Government v. Alhaji Bashir Apapa & Ors. NIC/36/2007 delivered on 3rd October 2007 the Court held that branch Unions have the rights to sue and be sued without the necessity of the parent unions. In Road Transport Employers Association (RTEAN) Osogbo, Ogun State v. National Union of Road Transport Workers (NURTW) Osogbo, Osun State NIC/33/2007 Coram Justices BA Adejumo, BB Kanyip and MB Dadda:
We must dismiss out rightly the argument of the respondent that the parties before the court are wrong. This Court has held times without number that branch unions or unit chapters or unions have the right of audience in this court.
32. In the case of Alhaji Lateef Akinsola v. National Union of Road Transport Workers (NURTW), (2013) 33 NLLR (Pt. 96) 399 this Court further held that “the law recognises unit/branches/chapters of trade unions as having legal personality and capable of suing and being sued in their own right given that their interests may not always and necessarily be conterminous with those of the national body”. See also Chima Ezechukwu v. Tecon Oil Services Nigeria Ltd Suit No: NICN/LA/27/2017 judgment delivered on 25/3/2021. The above decisions of this Court settles the Defendant’s contention of the lack of capacity of the Claimant to bring this suit. There is no evidence to suggest that the Claimant does not have the authority of its parent body. This also settles issue three; whether the action is incompetent against the 2nd Defendant, as Chairman of a non-existing legal personality to wit the 1st Defendant. The 1st Defendant can be sued before this Court, as a chapter of the National Union of Road Transport Workers. I so hold.
ISSUE 4:
33. Issue four is whether the action in constitution and subject matter is within the jurisdiction of this Court. To determine this issue, a first port of call should be the provision of the National Industrial Court Act 2006 which provides in section 7 (1) on jurisdiction as follows:
(i) labour, including trade unions and industrial relations; and
(iv) any trade union constitution; and …
1 (b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws.
35. Based on the above provisions of Statute, I find that this ground of the Preliminary objection cannot be sustained. This suit clearly is related to trade unions, trade unionism, and the Trade Unions Act. I so hold.
36. I now proceed to determine the lone issue set down for determination of the main suit; which is:
· Whether the Claimant is entitled to the reliefs it seeks in this suit.
37. To determine this issue, I shall take the reliefs sought in this suit, seriatim. Relief one is for “A DECLARATION that it is the sole responsibility of the Claimant as legally guaranteed and within its jurisdictional scope as conferred by the Department of Trade Union Services of the Federal Ministry of Labour to unionise tippers/trucks owners and employers in the quarry industry/sector in Nigeria.” The status of the Claimant as a registered trade union is not in doubt as it established this via exhibit C1 – its certificate of registration. Exhibit C2 – C4 are various correspondences from the Ministry of Labour to the Claimant, acknowledging its status as a registered trade union. Exhibit C5 is a letter written to the Claimant stating its JURISDICTIONAL SCOPE OF OPERATION dated 11th March 2014. The letter states the Claimant’s scope of jurisdictional scope of operation as:
That the jurisdictional scope of Union of Tipper and Quarry Employers of Nigeria covers the unionization of Tipper/Trucks Owners and Employers in the Quarry industry and also the Drivers who are owners of the Truck/Tipppers they are driving.
Exhibit C5 went further to state the jurisdictional scope of the 1st Defendant as follows:
I am further directed to state that the National Union of Road Transport Workers (NURTW) has the jurisdictional scope of unionizing all workers engaged in transportation of goods by road, excluding the transportation of Petroleum by road and transportation undertaken by self-employed persons.
38. Exhibit C5 is reiterated in exhibit C11; letter dated 3rd July 2017 from the Federal Ministry of Labour and Employment. Exhibit C14 is a letter from the Federal Ministry of Labour and Employment, to the Commissioner of Police Force Kwara State, confirming it wrote exhibit C11. The letter informed the Police about the jurisdictional scope of the parties in this suit, restating the jurisdictional scope already reproduced above. It stated that based on the jurisdictions as approved by the Federal Ministry of Labour and Employment, the areas of operations of the unions especially with regards to the collection of union dues/revenues from their respective members must be limited to their individual parks as no union is authorised to collect revenues along the roads in line with the provisions of the extant Taxes and Levies Act. It further states that the Union of Tipper and Quarry Employers of Nigeria (the Claimant) is the rightful union to have designated parks around the quarry sites. In exhibit C4 (letter from the Ministry of Labour and Employment) to the Executive Governor of Ogun State; the jurisdictional scope of the Claimant was clearly stated as covering the unionization of tipper/trucks owners and employers in quarry industry. Exhibit C13 (Claimant’s Constitution) equally states the membership of the Claimant as open to all employers in the industry including the owners of quarries and the tippers/trucks that operate at the quarry sites.
39. None of these facts have been controverted by the Defendants; who though entered appearance, took part in the trial; abandoned the suit by failing to open their case or file a final written address, despite being served hearing notices. CW2, a subpoenaed witness gave evidence that he is the Registrar of Trade Unions; and that its ministry registered the Claimant as a trade union in 2013 after fulfilling all the requirements for registration. He confirmed the Constitution of the Claimant as signed by the former Registrar; and the other letters emanating from the Ministry of Labour and Employment. CW2 also confirmed the jurisdictional scope of the Claimant as stated in its constitution; having been registered after the Trade Unions Act. See Mr. Ndidi Okoagbor (for himself and on behalf of the Union of Tipper & Quarry Employers of Nigeria) v. National Union of Road Transport Workers & Anor Suit No: NICN/AWK/25/2018 (judgment delivered on the 24th February, 2020). Further, exhibit C12 is a letter from Chief J. O. Apanishile, Counsel representing the Defendants in this suit, wherein he wrote to the Commandant of the Federal Road Safety Corps, introducing the Claimant as a new trade union in town.
40. From the evidence before me, I am convinced that the Claimant has established its entitlement to the first relief it seeks. I therefore DECLARE that it is the sole responsibility of the Claimant as legally guaranteed and within its jurisdictional scope as conferred by the Department of Trade Union Services of the Federal Ministry of Labour to unionise tippers/trucks owners and employers in the quarry industry/sector in Nigeria.
41. Relief two is for A DECLARATION that the various acts of the defendants in unionizing drivers of tippers/trucks in quarry sectors at various sites in Ogun State and ticketing these drivers without the consent or approval of the Claimant amount to usurpation of the functions, powers and duties of the claimant. In proof of this relief, the Claimant’s witness gave evidence that the Defendants continuously attempted, compelled, harassed and intimidated its members and attempts to take over their carriages in Ijako, Ogun State. The Claimant gave evidence that:
Paragraph 15. Members of the Defendant rather than confining themselves to their areas of operations as clearly defined continues to encroach on our jurisdictional scope with frantic effort to take over our tipper garage in Ijako, Ogun State.
Para. 23 In-spite the intervention of the Board, the Defendant continues to wilfully and deliberately invade our jurisdictional scope by its activities of unionizing quarry garages in Ogun State and ticketing our members across the State.
42. The CW1 also tendered exhibit C10; copies of tickets issued to the Claimant’s member by the Defendant. Exhibits C9 and C14 evidences complaints of the incursion of the 1st Defendant into the Claimant’s jurisdictional space. None of these allegations were debunked or controverted by the Defendant; who had the opportunity to do so. I find that having failed to do that, it is deemed to have been admitted. See Barau & Ors v. Consolidated Tin & Mines Ltd & Ors (2019) LPELR-46806. I find that the Claimant is entitled to the second relief. I therefore DECLARE that the various acts of the Defendants in unionizing drivers of tippers/trucks in quarry sectors at various sites in Ogun State and ticketing these drivers without the consent or approval of the Claimant amount to usurpation of the functions, powers and duties of the claimant.
43. In view of the findings made in reliefs one and two, I find that the Claimants are also entitled to the third relief sought in this case. The Defendants are hereby RESTRAINED, their agents, privies, or assigns from carrying out the functions and duties of the Claimant and or encroaching on the jurisdictional scope of the Claimant in whatever guise and in any manner whatsoever.
44. Relief four for an order directing the Defendants to pay or remit the ticket fees, and other money illegally obtained from the Claimant’s members from January 2014 till the date of determination of this suit is refused for being uncertain and for lack of proof.
45. It is to be remembered that the Ruling of this Court on the Preliminary Objection is that the matter is premature; and has been struck out. The Judgment is in the event that I am wrong in striking out this suit for lack of jurisdiction.
I make no Order as to Cost.
…………………………………….
Hon. Justice (Prof) Elizabeth A. Oji