IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

   HOLDEN AT ABUJA

 

DATE: 26TH APRIL 2024                                          

SUIT NO: NICN/ABJ/177/2023

 

BEFORE THEIR LORDSHIPS

HON. JUSTICE O. A. OBASEKI-OSAGHAE                            PRESIDING JUDGE

HON. JUSTICE R. B. HAASTRUP                                                       JUDGE

HON JUSTICE O. O. OYEWUMI                                                        JUDGE

 

BETWEEN

MTN NIGERIA COMMUNICATIONS PLC                                        APPELLANT

AND

PRIVATE TELECOMMUNICATIONS AND COMMUNICATIONS

SENIOR STAFF ASSOCIATION OF NIGERIA (PTECSSAN)        RESPONDENT                                             

 

REPRESENTATION

Lotanna C. Okoli, SAN for the Appellants, with Deborah Ayorinde, Sarah Ndudim.  

Andy O. Achugbue Esq for the Respondent.

 

 

JUDGMENT

 

INTRODUCTION

[1] This matter was referred by the Permanent Secretary Federal Ministry Of Labour and Employment by virtue of the provisions of the Trade Disputes (Delegation of Certain Statutory Functions) Order, under the Minister’s Statutory Powers and Duties (Miscellaneous Provisions) Act, CAP M14, Laws of the Federation of Nigeria 2004; and thereof in the exercise of the powers conferred on the Honourable Minister of Labour and Employment pursuant to Section 14 (1) of the Trade Dispute Act, CAP T8, Laws of the Federation of Nigeria (LFN) 2004, by instrument dated 21st June 2023 and a cover letter to the referral instrument dated 27th June, 2023 with reference No FML &E/TUSIR/ML. HE/1059/CON/1/51. The trade dispute had earlier been referred to the Industrial Arbitration Panel (hereinafter referred to as the IAP) by the Honourable Minister of Labour and Employment in exercise of the powers conferred on him by Section 5(2) and 9 (1) of the Trade Disputes Act. The IAP made an award on the 13th April 2023 that was objected to by both parties and this gave rise to the referral to this Court. The IAP award is attached to the referral instrument. The terms of reference as contained in the referral instrument are as follows:

“To inquire into the trade dispute existing between Private Telecommunications and Communication Senior Staff Association of Nigeria (PTECSSAN) and MTN Nigeria Communications PLC over the following issues:

i.                    Status of procedural agreement signed by both parties vis-à-vis the agreement signed with the Honourable Minister of Labour and Employment.

ii.                 Exclusion of staff on level 3 from union membership

iii.               Non-recognition of union as the sole negotiating body

iv.               Members of the union to be sole beneficiaries of the negotiations done by the union on their behalf

v.                  Failure to negotiate and sign collective bargaining agreement at the stipulated time frame.”

 

FACTS

[2] The case of the First Party/Appellant herein at the IAP is that a dispute arose between the parties bordering on allegations of unfair labour practices made by the Second party/Respondent herein. The Appellant declared a trade dispute on 11th August 2020. Following the intervention of the Hon Minister of Labour, a statutory conciliation meeting was held with the parties and resolutions reached and both parties signed the documented resolutions. Pursuant to the resolutions signed, both parties signed the Procedural Agreement (PA) that laid down the procedure for the negotiation and signing of the Collective Bargaining Agreement (CBA); and thereafter the parties began discussions in respect of the CBA. The Appellant’s position is that its employees on level 3 and above are projections of Management and are not eligible for membership of the Respondent. The Respondent insisted that they set aside the resolutions reached at the statutory conciliation meeting and commence fresh negotiations on issues already resolved at the statutory meeting. The reason for this was the Respondent’s interpretation of the Preamble Clause “D” of the PA. The Appellant declared another trade dispute on 10th February 2022. The Ministry of Labour again invited the parties for a statutory conciliation meeting and at the conclusion of the meeting, the Ministry of Labour wrote both parties advising them of the outcome of the conciliation meeting. The Appellant wrote the Ministry of Labour observing that the conciliation had not been concluded as stipulated by the Trade Disputes Act. The Hon Minister of Labour then referred the dispute to the Industrial Arbitration Panel. We find that the terms of reference to the IAP are in the exact terms as the reference to this Court.

 

[3] The case of the 2nd Party/Respondent herein at the IAP is that there was a dispute between it and the First Party/Appellant bordering on unfair labour practices against Nigerians generally and its members. The Respondent asserts that the Collective Bargaining Agreement (CBA) has never been negotiated with the Appellant who refused to meet with it for discussion; and that only those staff on grade L5 and above in its organogram are acknowledged as projection of management. That it is not the law that all senior staff of an organization cannot belong to a trade union. The 2nd Party/Respondent states that the First Party/Appellant has sponsored and promoted an illegal body to perform trade union functions in contravention of the Trade Union Act, and that it relates and negotiates with this body to undermine and weaken the Respondent trade union.

 

AWARD OF THE IAP

[4] The Award of the Industrial Arbitration Panel (IAP) is reproduced as follows:

 

1. It is hereby DECLARED that the procedural agreement is not the sole record of the understandings and agreement between parties relating to the subject matter as it does cancel and override prior verbal or written communications to such subject matter.

 

2. It is hereby DECLARED that the procedural agreement dated 9th October 2020 is valid and subsisting and does not supersede and override the resolution signed by the parties on the 18th August 2020 in so far as it relates to the subject matter mentioned in the procedural agreement.

3. It is hereby DECLARED that the right to belong to a trade union is a constitutional guaranteed right and except as provided for by law in Section 3 (3&4) of the Trade Union Act senior or management staff of the first party cannot be deprived of their constitutional right to belong to the 2nd party as their belonging will not engender conflict of interest with the 1st party and the 2nd party.

 

4. It is hereby DECLARED that the only trade union registered by the Registrar of Trade Union pursuant to S. 2 of the Trade Union Act can perform the functions of a trade Union to the exclusion of a body known as the Employee Council in the 1st Party.

5. It is hereby DECLARED that the collective bargaining agreement negotiated which the parties are yet to sign is inoperative and has no force of law.

6. It is hereby ORDERED that the 1st party shall henceforth desist either by itself, servants, agents or privies from dealing with Employee Council on issues within the scope of the 2nd party as it affects the working conditions of employees of the 1st party who are members of the 2nd party.

7. It is hereby ORDERED that the 1st party either by itself, servants, agents or privies should desist henceforth from intimidating the staff and union members/officials of the 2nd party in its employment through threats of dismissal or dismissal from their employment by reason of their being members of a union or of the 2nd party in the pursuit of their fundamental right as contained in Section 40 of the 1999 Constitution of the Federal Republic of Nigeria as Amended.

 

APPELLANT’S SUBMISSIONS

[5] Upon the referral of the matter to this Court, the parties filed their respective brief of argument. The Appellant filed its brief of argument on 13th November 2023, while the Respondent filed its brief of argument on 21st December 2023. The Appellant also filed its reply brief on 31st January 2024.

 

[6] The Appellant submitted four (4) issues for determination reproduced below:

 

i.                    Whether the Court can correct a typographical omission which appears on the face of the Award (distilled from Ground one and item i of the terms of reference)

 

ii.                 Whether the Arbitral Panel was right in declaring that senior or management staff of the Appellant could join the Respondent union in the face of the facts, findings and other declarations of the Tribunal. (distilled from Grounds Two and Three and item ii of the terms of reference.

 

iii.               Whether the Arbitral panel was right to declare that only trade union registered by the Registrar of Trade union pursuant to S. 2 of the Trade Union Act can perform the functions of a trade union to the exclusion of a body known as the Employee Council of the 1st party when the Employee Council does not act or perform the functions of a trade union and falls within the exception provided in section 1 (3) (a) of the Trade Unions act. (distilled from ground four and item iii of the terms of reference).

 

iv.               Whether the Arbitral Panel acted within its terms of reference when it ordered that the 1st party either by itself, servants, agents or privies should desist hence forth from intimidating the staff and the union members/officials of the 2nd party in its employment through threats of dismissal or dismissal from their employment by reason of their being members of a union or of the 2nd party in the pursuit of their fundamental right as contained in section 40 of the 1999 constitution of the federal republic of Nigeria as amended when the injunction was neither a part of the claims of any of the parties nor did it arise from the evidence before the tribunal. (Distilled from Ground five).

 

[7] Learned Senior Counsel to the Appellant on issue 1, answered in the affirmative. He submitted that the court can correct a typographical error that appears on the face of the Award by adding the word “not”. He referred to paragraphs 10.3 at page 222 of the records, paragraph 10.7 page 223 of the records, and clause 1 of the findings of the Tribunal and argued that they all point to the stance of the Tribunal that the procedural agreement and conciliatory resolution are distinct documents. The procedural agreement does not have an overriding effect on previous communications to the subject matter. Learned counsel submitted that the Tribunal in Declaration A held otherwise and in clear error, as declaration B upholds the finding that the procedural agreement does not override the resolution signed by the parties.  It is his submission that the error in Declaration A creates ambiguity and that since the Award has not been sent back to the Tribunal for correction, this Court can in the exercise of its Appellate jurisdiction correct the omission in the said Declaration for the purpose of clarity. He then urged the court to exercise its supervisory jurisdiction in correcting the omission.

 

[8] On issue 2, Appellant’s Counsel submitted that the Tribunal’s Declaration (C) to the effect that senior or management staff of the Appellant can be members of the Respondent is in direct conflict with Declarations A and B of the Award of the Tribunal. He stated that the issue of unionization of management staff who are a projection of management was resolved during the statutory conciliation meeting which gave rise to the resolution signed by parties on 18th August 2020 where it was agreed that status quo should be maintained pending the amendment of section 3(3) and 4 of the Trade Unions Act. He submitted that the decision of this court in NUFBTE v Mgt of NIDOCO Nig Ltd (2008) 11 NWLR (Pt 28) pg 70 at 111 paras A-B is in conformity with the provisions of section 3(3) of the TUA that staff in semi management positions are not eligible to be members of a trade union. He argued that the IAP Declaration C cannot stand in view of the findings and other declarations of the Tribunal and should be set aside.

 

[9] Learned Senior Counsel further submitted that assuming but not conceding that the Tribunal was right in Declaration C, it is still in direct conflict with the findings having held that management staff could join a trade union of their cadre but misdirected itself by declaring that the management staff of the Appellant could join the Respondent when in fact the Respondent is not the appropriate trade union.  He argued that by virtue of Declarations A and B, other agreements are still effective and not overridden by the procedural agreement. To the Appellant’s Counsel, the decision of the tribunal is not logical and is in conflict with its findings. He submitted that decisions must flow logically from the findings of a court citing Oyeyemi & Ors v Irewole Local Govt, Ikire & Ors (1993) LPELR – 2881 (SC) P. 20 paras A-B, Ogbechie & Ors v Onochie & Ors (1988) LPELR-2277 (SC) Pp 50 paras E-F Counsel therefore urged Court to set Declaration C aside.

 

[10] Learned Senior Counsel on issue 3, referred to section 1(1) of the Trade Unions Act, Cap T4 LFN 2004, for the meaning of a Trade Union and submitted that by the definition, a trade union is said to have been formed when the combination is between workers or employers. He submitted that a trade union is either a combination of workers or a combination of employers, and is not a combination of workers and employers. He further asserted that the Employee Council which was birthed by the Appellant is not a trade union and does not carry out functions of a trade union activities, rather, it functions as one of the units of the Appellant formed to discuss matters bordering on the conditions of work in the Appellant’s organization. The Appellant’s Counsel referred to section 1(3) (a) of the Trade Unions Act, and argued  that the Employee Council does not represent workers in other companies  but only deals with the Appellants employees. He urged the court to set aside Declarations D and F of the IAP Award. 

 

[11] On issue 4, Appellant’s Counsel submitted that the injunction of the IAP did not form part of the dispute between the parties referred to it by the Hon Minister. It was his submission that the tribunal is bound to determine only the points referred to it by the Hon Minister in exercise of his statutory powers. He submitted that it is settled law that except for consequential orders made to give effect to a ruling or judgment of a Court, no Court has the jurisdiction or power to grant a relief not claimed by a party. He further submitted that it is a settled principle of law that no Court has the authority to raise an issue suo moto and decide same without inviting parties to address it on the issue, as such procedure would be in breach of the rule of fair hearing. He cited Apugo v Ugoji (2022) 16 NWLR (Pt. 1857) 669 at  716, Ogbaji v Arewa Textiles Plc (2000) 11 NWLR (Pt. 678) 322 at 334 Paras A-D, The Management Of Nestle Nigeria Plc Ilupeju, Lagos v National Union Food, Beverages And Tobacco Employees  Suit No: NIC/25/2008  Ejezie v Anuwu (2008) 12 NWLR (PT. 1101) 446 at 474-475 Paras G-D,

 

[12] The Appellant’s Counsel then urged the Court to resolve this issue in favour of the Appellant and set aside Declaration G, correct and set aside the parts of the Award complained of particularly Declarations A, C, D, F and G same having been made in error and without due recourse to settled principles of law.

 

RESPONDENT’S SUBMISSIONS

[13] The Respondent formulated six (6) issues for determination as follows:

 

i.                    Whether or not the dispute or disagreement between Appellant and Respondent (as the affected and involved disputant Parties, and the subject matters in dispute), qualify as Trade Dispute in this Suit.

 

ii.                 Whether or not the instrument dated 20/12/2022 of referral of the Minister of Labour and Employment, that constituted the Industrial Arbitration Panel (Tribunal) Abuja, was statutorily and ministerially legal, valid and competent as exercised, not put into effect or carried out within the statutorily prescribed time by the said Minister, having regard to the combined provisions of sections 6(1) and 9(1) of the Trade Disputes Act Cap T8, LFN 2004.

 

iii.               Whether or not, the Industrial Arbitration Panel Abuja, had the jurisdictional competence cum legality or validity, to have arbitrated upon its two distinct terms of reference and constituted interference or meddling involvement, with pending five (5) NICN Court 2 cases at Lagos, and made its seven (7) awards during its subjudice proceedings, with concurrently used and applied two (2) instruments dated 20/12/2022 and 26/10/2020, of the nullity of the said IAP proceedings with its Ruling of 13/4/2023, and the seven (7) Awards.

iv.               Whether or not, this National Industrial Court No. 2 Abuja in Suit No. NICN/ABJ/177/2023 and the National Industrial Court No. 2 Lagos, can concurrently or in pari passu, competently adjudicate on same substantially similar or identical subject matters, without questions of subjudice and vacating for each other, in respect of this Court items (i) and (ii) Terms of Reference of the Referral, by instrument dated 21/6/2023 of the Minister of Labour and Employment, which are sameness and indistinguishable, with the pending Suits Nos. NICN/LA/369/2022 and NICN/LA/370/2022 pending at National Industrial Court No. 2 Lagos.

 

v.                  Whether or not, the instrument dated 21/6/2023 of Referral to this Court, by the Minister of Labour and Employment, that constituted this Suit No. NICN/177/2023, can be or foundationally lawful, valid and competent, without the incompetent, invalid, lifeless or rightless instrument dated 20/12/2022 of the said Minister and an incompetent and irregular Industrial Arbitration Panel Abuja Ruling and Awards that are nullity, having regard to the nonexistent instrument dated 26/10/2020, the combined provisions of Sections 13(2) and 14(1) of the Trade Disputes Act, Cap. T8, LFN 2004.

 

vi.               Whether or not, the four (4) issues raised for determination by the Appellant in its Brief of Argument filed on 13/11/2023, are grantable by this Court vis-à-vis the items (iii) to (v) of the terms of reference of the instrument dated 21/6/2023.

 

[14] Learned counsel to the Respondent on issue 1,  placing reliance on sections 48(1) of Trade Disputes Act and 54 of the National Industrial Court Act 2006 submitted that there exists no trade dispute between parties  as the Respondent is not a worker or employee of the Appellant. He contended that the subject matter of this suit is not connected to collective terms of employment citing N.U.E.E. v B.P.E (2010) ALL FWLR (PT. 525) 201 @ 206-209. He urged Court to dismiss this suit for lack of jurisdiction.

 

[15] On issue 2, learned counsel to the Respondent submitted that by virtue of section 9(1) and 6(1) of the Trade Disputes Act, the Minister of Labour and Employment is mandated to issue a referral to the IAP within fourteen days (14) of receipt of Appellant’s report. He submitted that where the word ‘shall’ is used in a statute, compliance is mandatory citing Waziri v Gumel & Anor (2012) MRSCJ Vol II, Ogid v State (2005) ALL FWLR (PT. 251) 202 N.S.I.T.F.M.B. V. KLIFCO NIG. LTD (2010) ALL FWLR (PT. 534) 73 and a plethora of other cases. He contended that although section 9(1) of TDA is silent about sanctions against the Minister in the instance of noncompliance, the Court may invoke its interpretative jurisdiction to come to the conclusion that the act of non-compliance with a statutory provision is against the party in default. He relied on Adesanoye v Adewole (2006) 14 NWLR (PT. 1000) P. 242 at 269 PARAS C-E. Learned counsel submitted that the act of the Minister of Labour issuing a referral to the IAP after more than 10 months from date of receipt of letter dated 22/2/2022, is a void act which carries no legal consequence citing Oyeneyin v Akinkugbe (2010) ALL FWLR (PT. 517) 613-614 Para H-A.

 

[16] On issue 3, the Respondent’s counsel in line with the arguments on issue 2 submitted that the IAP was illegally constituted due to non-compliance with section 9(1) of TDA and consequently had no jurisdiction to have arbitrated over the dispute. Respondent’s Counsel further contended that the delay of the Minister of Labour to refer the dispute to the IAP prompted MTN Communications Nigeria PLC (who according to him is a non-legal entity) to file suit NICN/LA/304/2022 and that the Respondent herein filed four (4) suits against the Appellant at the NICN. He submitted that the IAP erred when it held in its Ruling dated 13th April 2023 that suits commenced by the parties before the NICN constitute an abuse of Court process and that the NICN lacks jurisdiction.

 

 [17] Learned counsel on issue 4 submitted that the subject matters as contained in items (i) and (ii) of this Referral which commenced Suit NICN/ABJ/177/2023 are identical with subject matters in Suit NOS. NICN/LA/369/2022 and NICNN/LA/370/2022 both filed 21st September 2022. He submitted that NICN Court 2 is expected to vacate the hearing and determination of the items (i) and (ii) of the terms of reference of the instrument dated 21/6/2023 and cited Dingyachi v INEC (2010) ALL FWLR (PT. 550) P. 1204 at 1255 Para E-F.

 

[18] Addressing issue 5, Respondent’s Counsel rehashed arguments proffered with regard to issues 1, 2, 3 and 4 and further stated that the referral to this Court which is dated 21st June 2023 cannot possibly be valid as it gets its life from the incompetent and statute barred instrument dated 20th December 2022.

 

[19] Learned counsel to the Respondent on issue 6 submitted that the Court is adjudicating over this suit in its original jurisdiction as there is no notice of appeal or appeal pending in this case and therefore the court cannot implement the slip rule to make corrections or alter the Award of the IAP as doing so will be prejudicial to the Respondent and cause a miscarriage of justice relying on Balogun v Adejobi (1995) 2 NWLR (PT. 376) 131 at 138 Para E-F, and submitted that it is presumed that a Court order is valid until set aside by a higher Court. He submitted that the procedural agreement dated 9th October 2020 by virtue of Clause D supersedes and overrides the Resolution dated 18th August 2020 and he cited Abalogu v S.P.D.C. LTD (2003) FWLR (PT. 171) 1627 paras B-E, Fakorede & Ors v A.G Western State (1972) 4 NWLR (PT. 38) 785 (SC) amongst others. That where clear words are used in a statute, such clear words are to be given their ordinary meaning and it is not the function of the Court to rewrite the agreement of parties.

 

[20] Learned Counsel submitted that section 40 of the Constitution gives a worker the right to be a member of an association and that the only restriction to that provision is contained in section 45 of the constitution. He contended that Section 3(3) & (4) Trade Union Act does not limit the constitutional right of any employees of Appellant to join a trade union of his or her own choice. He argued that the Appellant failed to furnish the Court with cogent evidence to prove that the Managers exercise executive authority in its company in order to apply provisions of Section 3(4) of the Trade Union Act. It was his submission that Section 45 (1) (a) and (b) does not apply to the Appellant and it does not make provision of Section 3(3) (4) of the Trade Union Act restrictive to the application of Section 40 of the constitution.

 

[21] The Respondent’s Counsel submitted that the Respondent is a registered trade union, whereas the Employee Council is not, and that it carries on the functions of a trade union and thereby usurping its functions. He submitted that this is inconsistent with Section 5(7) and 25(1) of the Trade Unions Act and he urged the Court to declare the Employee Council illegal and hold that the Respondent is the sole negotiating body to deal with the Appellant in respect of its workers who are its member by virtue of the procedural agreement dated 9th October 2020. Learned counsel submitted that it is only workers of the Appellant who are members of PTECSSAN (the Respondent herein) that are entitled to benefit from negotiations and collective agreements pursued and executed by it. He then urged the Court to dismiss all issues and reliefs sought by the Appellant and decide in its favour.

 

APPELLANT’S REPLY

[22] Learned Senior Counsel to the Appellant submitted that the issue as to whether the dispute between the parties herein is a trade dispute is a fresh issue which cannot be raised on appeal without leave. He cited Bankole & Ors v Pelu & Ors (1991) LPELR-749 (SC) 36 PARAS C-F, Ubani-Ukoma v Seven-Up Bottling Co. Plc & Anor (2022) LPELR-58497 (SC) 52 PARAS B-F. He submitted that by virtue of section 48 of the Trade Disputes Act, the dispute between the Appellant and the Respondent is rightly categorized as a trade dispute. Counsel referred to N.U.R.T.W. v Ogbodo (1998) 2 NWLR PT. 537 PAGE 189 at 191-192 and further submitted that the Respondent misapplied case law in its argument. He argued that the Court is statutorily clothed with the jurisdiction to entertain this matter and that a defect of the instrument of referral issued by the Honourable Minister cannot strip the Court of its jurisdiction. He submitted that citing Waziri v Gumel & Anor (2012) MRSCJ VOL. II and Ogidi v State (2005) FWLR (PT. 251) PG 2020 cited by the Respondent’s Counsel are inapplicable to this present case and should be discountenanced.

 

[23] The Appellant’s Counsel argued that a combined reading of sections 4, 5 ,6, 7, 8 and 9 of the Trade Disputes Act reveal that the Minister is not obligated to make a reference within 14 days where a Conciliator was appointed by the Minister as in this present case. He submitted that the operative word ‘shall’ as contained in Section 9 TDA has a directive connotation rather than mandatory and should be interpreted as such. He cited  Ntewo v University Of Calabar Teaching Hospital & Anor (2013) LPELR-20332 (CA),  Omatek Computer Ltd v FBN Ltd (2021) LPELR-56812 (CA) PG 19-20 Para E-E. That where failure to comply with provision of the law is not that of the party but rather the Court or its official, the effect of such failure should not be visited on the litigant.

 

[24] Learned Senior Counsel to the Appellant maintained that the suits filed at the National Industrial Court by the Respondent during the pendency of the conciliatory process that are incompetent and constitute abuse of Court process. He submitted that the suit filed by the Appellant at the National Industrial Court does not amount to an abuse of Court process as the said suit was filed to prevent industrial action by the Respondent during the trade dispute in line with Sections 18 of TDA and 7(1) (b) of the National Industrial Court Act. He referred to Section 14 of the TDA, Order 50 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017  and submitted that this Court has appellate jurisdiction over decisions of the IAP and the jurisdiction to correct errors in Declaration A of the award of the IAP.

 

[25] Learned Senior Counsel submitted that the freedom of association provided under Section 40 of the constitution is not absolute by the caveat in section 45 of the 1999 Constitution. He argued that the Respondent cannot  be recognized as the sole negotiating body of its staff as such recognition would contravene provision of section 40 of the Constitution which gives the right of association to every Nigerian citing Anigboro v Sea Trucks (Nig.) Ltd (1995) 6 NWLR (Pt 399) 35 at 62 Para A-E.  He urged the Court to  correct Declaration A, and set aside Declarations C, D, F and G of the Award of the IAP.

 

COURT’S DECISION

 

[26] We have carefully considered the processes filed and the issues submitted for determination by the parties. We will begin with the preliminary issues. We note that the IAP in its Award particularly at page 212 of the records stated as follows:

 

The question that agitates the mind of the Tribunal looking at the provisions of the NICN Act and the TDA is whether the referral by the Honourable Minister is an abuse of judicial process. Herein earlier above, the Tribunal picked the suits filed before the NICN seriatim and against each determined them to be trade disputes which are clearly within the jurisdiction of this Tribunal. That being the fact, those cases by the 1st party and the 2nd party before the NICN are clearly in abuse of judicial process and consequently they shall abate and are null and void. The NICN acting on them will be acting outside its jurisdiction.

 

[27] We wish to state unequivocally that the NICN has both supervisory and appellate jurisdiction over the Industrial Arbitration Panel (IAP). In the exercise of the supervisory jurisdiction of this Court over the proceedings of the IAP, this Court may issue any of the prerogative orders against the IAP in the exercise of its powers of judicial review of the IAP proceedings, see section 17(1) & (2) of the National Industrial Court Act 2006 (NICA 2006). And in its appellate jurisdiction, this Court reviews the merits of the decisions of the IAP which may be confirmed, varied or set aside, and make consequential orders pursuant to the provisions of section 8 of the NICA 2006.  In light of statutory provisions, the IAP is completely out of order in its above pronouncement as a tribunal with respect to the National Industrial Court of Nigeria that has both supervisory and appellate jurisdiction over it.

 

[28] The IAP as an arbitration tribunal set up by section 9(3) of the Trade Disputes Act (TDA) is to resolve trade disputes referred to it by the Hon Minister; and not to meddle, interfere, or clothe itself with powers not donated to it in deciding on the jurisdiction of this Court which has been conferred on it by Section 254C of the 1999 Constitution as amended.  The IAP has without any doubt veered off its statutory duties in sitting upon, deciding and pronouncing on matters pending before the NICN which is an aberration and is ultra vires their powers. The IAP in its arbitral functions must keep within the terms of the referral instrument. Failure to do this will mean going beyond the bounds of its jurisdiction see Ajomale v Yaduat & Anor (1991) LPELR-305 (SC) Pp 8-9 para E, Nestle Nig Plc v NUFBTE (2009) 15 NLLR (Pt 40) 1 at 74 para E-F. The above pronouncement by the IAP is declared null and void; and accordingly set aside. The IAP is to be well guided.

 

[29] We also note that learned counsel to the Respondent has submitted in paragraph 5.2 of the Respondent’s brief of argument that this Court is “not Sitting on Appeal” or as “an Appellant Court but on Referral (with Referral Jurisdiction)”. Now, a party who is dissatisfied by the award of the IAP must send a Notice of Objection to the Minister within 7 days of the release and publication of the Award to the parties.  The instrument of referral that is issued by the Minister (which encompasses the terms of reference) is what activates the appellate jurisdiction of this Court to hear an appeal against the Award of the IAP and not a Notice of Appeal. This procedure is sui generis and has been affirmed by the Court of Appeal in NASU v Jacob (2020) LPELR 49951 (CA), Management of Syndicated Metal Industries v Steel & Engineering Workers Union of Nigeria (2019) LPELR-47859. Also see Nigerian Electricity Management Services Agency (NEMSA) v National Union Of Electricity Employees (NUEE) unreported Suit No: NICN/ABJ/307/2020 judgment delivered on 28 January 2022, Food Beverage & Tobacco Senior Staff Association (FOBTOB) v International Breweries Plc, unreported Suit No: NICN/ABJ/04/2023 judgment delivered on 19 January 2024. The Respondent’s counsel has therefore misconceived this procedure in his statement that this Court is “not Sitting on Appeal” and has not averted his mind to the statutory powers of this Court.

 

[30] We must also state that at the preliminary hearing the Court took its time to explain to learned counsel in detail the special nature of the appellate jurisdiction of the NICN; and also emphasized that the issues must be within the terms of reference contained in the referral instrument from the Hon Minister of Labour as the Court will not go outside the terms of reference. Consequently, any issue outside the terms of reference will be discountenanced. We state for the avoidance of doubt that by the provisions of Part 1 of the dispute resolution processes in the Trade Dispute Act and particularly Section 9 (1) and (3) of the Act, the Industrial Arbitration Panel (IAP) is clothe with jurisdiction to settle a trade dispute referred to it by the Hon Minister of Labour.

 

[31] The Appellant has in paragraph 2.19 of its brief of argument stated that it is satisfied with Declarations B (distilled from item i of the terms of reference); and Declaration E (distilled from item v of the terms of reference) made by the IAP. These are the Declarations numbered as 2 and 5 in the IAP Award. The issues that therefore arise for determination are as follows:

 

1.      Whether the Court can correct an error in the Award of the Industrial Arbitration Panel?

 

2.      Whether the Appellant’s staff on Level 3 who are a “projection of management” can be members of the Respondent union?

 

3.      Whether the Employee Council set up by the Appellant is performing the role of a trade union?

 

4.      Whether the Respondent is the sole negotiating body in the Appellant for its members?

 

5.      Whether the IAP went outside its terms of reference?

 

RESOLUTION OF ISSUES

 

[32] On issue 1, learned Senior Counsel to the Appellant has argued that based on the findings of the IAP Declaration 1 in the Award is clearly an error, and he has urged the Court to exercise its supervisory jurisdiction by adding the missing word “not” and correct the omission that appears on the face of the award. We must re-state that by this referral, the appellate jurisdiction of the Court has been activated, and is sitting as an appellate Court.  It is the adjudicatory function of an appellate court to correct the errors of the trial court that emanate from the records. The appellate court corrects the errors by reviewing the decision of the trial court in the context of the law and the facts, see Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc (2007) 5 NWLR 415 at 436 para A-B; (2007) LPELR 160 SC. This is the duty of this Court.

 

[33] The Declaration that the Appellant is complaining about is reproduced for ease of reference:

 

1.      It is hereby DECLARED that the procedural agreement is not the sole record of the understandings and agreement between parties relating to the subject matter as it does cancel and override prior verbal or written communications to such subject matter.

  

The records of the IAP at paragraph 10.3 page 222 gives an insight on this issue and the IAP states in its decision that: “The 2nd Party cannot select and pick which of the agreements it wants to be bound. From onset, it has become clear that the parties did not contemplate that the execution of the procedural agreements would invalidate the resolutions reached at the statutory conciliation meeting.” The IAP then went on to find at page 229 of the records: “That the procedural agreement and the conciliatory resolution with Hon Minister of Labour and Employment are distinct documents between the 1st party and 2nd party.”  

 

[34] The IAP having made the above finding also made Declaration 2 which the Appellant is satisfied with:

 

It is hereby DECLARED that the procedural agreement dated 9th October 2020 is valid and subsisting and does not supersede and override the resolution signed by the parties on the 18th August 2020 in so far as it relates to the subject matter mentioned in the procedural agreement.

It follows that from the reasoning and findings of the IAP that there is more than one agreement; the procedural agreement and the resolutions signed by both parties at the statutory conciliation meeting with the Hon Minister of Labour and Employment seen at pages 28 and 31 of the records.

 

[35] At this juncture, we must state that by the provisions of Section 8 (3) of the Trade Disputes Act, the memorandum of settlement signed at the statutory conciliation meeting, and the terms recorded therein shall be binding on the employers and workers to whom those terms relate. The use of the word “shall” is mandatory, see Arthur Nwankwo 7 Ors v Alhaji Umaru Yar’Adua & Ors (2010) LPELR-2109 (SC). We therefore hold that the signed resolutions of the 18th August 2020 at the statutory conciliation meeting, and the procedural agreement dated 9th October 2020 are both valid and subsisting records of undertakings and agreements between the parties. The law with regards to the binding nature of an agreement voluntarily entered into by parties is clear to the effect that it must be honoured, Williams v Williams (2014) 15 NWLR (Pt 1430) 213, Williams v Registrar of Titles, Lagos State & Ors (2016) LPELR-41420 (CA).

 

[36] On issue 2, the IAP found the employees of the Appellant on Level 3 are a projection of management. Section 3 (3) and (4) of the Trade Unions Act provides:

 

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

 

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

 

[37] It is the law that no employee recognized as a projection of management within the management structure of any organization is eligible to be a member or hold office in a trade union if such membership, or the holding of such office in the trade union will lead to a conflict of loyalties to either the trade union or the management. The determination   of the categories of employees that qualify as a projection of management is the prerogative of the employer, but this prerogative is not to be exercised arbitrarily and can be challenged by an aggrieved party, see Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v American International Insurance Company Nigeria Limited (AIICO) reported in DJNIC [1978 – 2006] 188; National Union of Food, Beverages and Tobacco Employees v Management of NIDOCO Nig Ltd, DJNIC [1978 – 2006] 223, and (2008) 11 NLLR (Pt 28) 70 ; National Union of Public Corporation Employees v Kwara State Utility Board DJNIC [1978 – 2006] 306.

 

[38] The IAP having found and determined that employees of the Appellant on Level 3 are a projection of management was wrong when it declared that senior or management staff of the Appellant cannot be deprived of their constitutional right to belong to the Respondent. This is not in accordance with the provisions of section 3 (3) of the TUA which prohibits employees who are “a projection of management” from membership of a trade union. We hold that the Appellants employees on Level 3 cannot join the Respondent trade union because they are a “projection of management”. There is however nothing preventing or prohibiting the employees on Level 3 from establishing their own association. They are entitled to establish their own association and we so hold. See Basil Ositadinma Mbanefo & Ors v Judicial Service Commission of Anambra State (2012) 26 NLLR (Pt 73) 122. However, this must be limited to the category of persons on Level 3. Nigeria is a member of the International Labour Organisation (ILO) and in virtue of its membership is bound by the core Freedom of Association and Protection to the Right to Organise Convention, 1948 (No 87) – ILO Convention 87, and the Right to Organise and Collective Bargaining Convention 1949 (No. 98) – ILO Convention 98, which have both been ratified. The ILO recognizes the plurality of trade unions in an establishment and this position has been espoused and affirmed in the recent decision of this Court Yusuf Abdullahi Abdulkadir & Ors v Minister of Labour & Ors (unreported) Suit No: NICN/AK/04/2022 judgment delivered on 16th May 2023.

 

[39] The Freedom of Association guaranteed in Section 40 of the 1999 Constitution that provides that every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest is not absolute. It can be derogated from by the provisions of Section 45 of the 1999 Constitution that has provided restrictions and derogations from the fundamental rights guaranteed in Chapter 1V of the Constitution; and any law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons. Section 3 (3) and (4) of the TUA is therefore within the reasonably justified exceptions allowed under Section 45 of the 1999 Constitution, Basil Ositadinma Mbanefo & Ors v Judicial Service Commission of Anambra State supra. We must mention that ILO jurisprudence permits limitation on the freedom of association. We hold that there is no conflict between Section 3 (3) and (4) of the TUA and Section 40 of the 1999 Constitution (as amended).

 

[40] On issue 3, the Appellant in its brief of argument particularly at Paragraph 6.3 stated  thus:

 

The Appellant relying on the above exception as provided by Section 1 (3) (a) of the Trade Unions Act formed the Employee Council with its workers as a unit of the Appellant Company, for the sole purpose of relating with respect to the terms and conditions of their employment to foster productivity in the Appellant Company. It is a fact that the Employee Council is a non-union platform of the Appellant as the Employee Council has never been registered as a Trade Union and does not carry out trade union activities. The Appellant is an organization comprising of different units. The Employee Council is merely one of such units and is formed by the Appellant and its employees to discuss matters bordering on the conditions of work in the Appellants Organisation. The unit is made up of employees on L1 and L2. The representatives of the Employee Council are elected by their peers to represent their units within the Company.

 

[41] By the provisions of section 1 (1) of the TUA, “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. We are not in any doubt that the Employee Council formed by the Appellant is surreptitious

ly performing the role of a trade union; even as the Appellant tries to take refuge in Section 1 (3) (a) of the TUA. It is unlawful by the provisions of Section 2 (1) of the TUA for the unregistered Employee Council to engage in trade union matters, specifically discussions on the terms and conditions of employment of its staff on grade level L1 and L2; and representative elections. Furthermore, by the provisions of Section 50 and 51 of the TUA it is an offence for which prosecution is prescribed. We are certain that the purpose of the Employee Council is to whittle down the influence of the Respondent trade union in the Appellant and depopulate it. By so doing, the Appellant as the employer is interfering in the exercise of the fundamental rights of its employees on grade level L1 and L2 to trade unionism.

 

[42] The exercise of the employees rights to trade unionism is so important that employers are enjoined not to interfere with its exercise in any way. See the decisions of this court in MHWUN v Comrade G.O. Olabode 7 Ors (unreported) Suit No NIC/LA/06/ 2010 judgement delivered on April 25 2012, Nestoil Plc v NUPENG (unreported) NIC/LA/08/2010 and NASU v Vice Chancellor University of Agriculture Abeokuta (unreported) Suit No NIC/LA/15/2011 judgment delivered on February 21 2012. This accords with section 40 of the 1999 Constitution, the ILO jurisprudence on Convention No. 87 (Article 2), and the ILO’s literature Freedom of Association: Compilation of Decisions of the Committee on Freedom of Association (International Labour Office: Geneva) 2018, 6th Edition Paragraph 336 at page 63. Workers without distinction whatsoever have the right to establish and join organizations of their own choosing without any previous authorization for the promotion and defence of their occupational interest.

 

[43] This freedom entails a number of principles, which have been laid down over time and which (according to the trio of B. Gernigon, A. Odero and H. Guido – ‘Freedom of Association’ in International Labour Standards: A Global Approach, 75th anniversary of the Committee of Experts on the Application of Conventions and Recommendations, First Edition 2002 at pp. 27 – 40) include the following:

 

right of workers and employers, without distinction whatsoever, to establish and join organisations of their own choosing; right to establish organisations without previous authorization; right of workers and employers to establish and join organisations of their own choosing; free functioning of organisations in terms of right to draw up their constitutions and rules; right to elect representatives in full freedom; right of trade unions to organize their administration; right of organisations to organize their activities in full freedom and to formulate their programmes; right of workers’ and employers’ organisations to establish federations and confederations and to affiliate with international organisations of workers and employers; right against dissolution and suspension of organisations except through judicial procedure; protection against acts of anti-union discrimination; and adequate protection against acts of interference.

Also see Yusuf Abdullahi Abdulkadir & Ors v Minister of Labour & Ors supra.

[44] On issue 4, the Respondent trade union represents its members only and engages in collective bargaining on behalf of its members in the Appellant Company. It cannot represent those who are not its members. Therefore, any collective bargaining agreement with the Appellant is for the benefit of the members of the Respondent, and the agreements are applicable to them only. The Employee Council is not a registered trade union and it is illegal for it to engage in discussions, negotiations, bargaining in respect of issues within the scope of the Respondent as it affects the terms and conditions of the Appellants employees who are members of the Respondent trade union. We hold that the Respondent is solely responsible for negotiating the terms and conditions of employment  for its members in the Appellant.

 

[45] On issue 5, we state that the IAP is a creation of law, established by the Trade Disputes Act to settle trade disputes. Being a quasi judicial body, it must act within the powers conferred on it and restrict itself to the prayers before it.  It is trite that courts of law and tribunals or anybody acting in quasi-judicial capacity do not have jurisdiction to grant orders or reliefs not sought by the parties before it. Courts of law and tribunals or quasi-judicial bodies are restricted to prayers sought before them and cannot make orders not sought by a party, see Wema Bank Plc v. Arison Trading And Engineering Co. Ltd. [2017] All FWLR [Pt.881] 1007; Olaopa vs. OAU, ILE-IFE [1997] LPELR-2571 [SC]; Union Beverages Ltd vs A.M. Owolabi [1988] 1 NWLR [Pt. 68] 128. Any action or exercise of powers outside the jurisdiction conferred on it by the Trade Dispute Act is ultra vires, see Ajomale v Yaduat & Anor supa, Olaopa v OAU Ile Ife supra, The Management of Nestle Nigeria Plc Ilupeju Lagos State v National Union of Food, Beverages and Tobacco Employees (unreported) Suit No: NIC/25/2008 judgement delivered April 2, 2009. The IAP being an arbitral and quasi-judicial body cannot exercise the powers of a Court of competent jurisdiction as it has sought to by making the injunctive order in Declaration 7. The order is hereby set aside.

 

[46] For all the reasons given above, we hereby declare and order as follows:

 

1. That the procedural agreement is not the sole record of the understandings and agreement between parties relating to the subject matter as it does NOT cancel and override prior verbal or written communications to such subject matter.

 

 2. Declarations 3 and 7 are hereby set aside.

 

 3. Declarations 2, 4, 5, and 6 are hereby affirmed.

 

[47] Each party is to bear its own costs.

 [48] Judgment is entered accordingly.

 

 

                                      ___________________________________

HON. JUSTICE O.A. OBASEKI-OSAGHAE

PRESIDING JUDGE

 

 

____________________________                     ____________________________

HON. JUSTICE R. B. HAASTRUP             HON. JUSTICE O. O. OYEWUMI

JUDGE                                                                       JUDGE