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