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REPRESENTATION<o:p></o:p>

O. A. Nwachukwu Esq, for the appellant.<o:p></o:p>

Rotimi Sanni Esq, for the respondent.<o:p></o:p>

<o:p> </o:p>

JUDGMENT<o:p></o:p>

This matter is a referral from the Honourable Minister of
Labour and Productivity through a letter dated the 2nd of July 2015.
The issue in dispute referred for determination of the Court states as follows:<o:p></o:p>

“To inquire into the Trade dispute
existing between the National Union of Petroleum and Natural Gas Workers and
the Maritime Workers Union of Nigeria over inter union trade dispute based on
jurisdictional scope issue in Century Energy (Nig) Limited between the Maritime
Workers Union of Nigeria (MWUN) and the National Union of Petroleum and natural
Gas Workers.”<o:p></o:p>

The Industrial Arbitration Panel (IAP) had on 17th day of
March 2015 made an award in favour of the instant respondent to which the
present appellant objected through a letter of notice of objection dated the 11th
of May, 2015 and addressed to the Honourable Minister. The grounds of the
objection which are predicated on section 13(2) of the Trade Disputes Act Cap T8 LFN 2004 state as
follows:<o:p></o:p>

a.    
“The workers in question are neither seamen, nor workers in the Nigerian
Port Authority or amongst those persons employed in manning of ocean going
vessel, inland waterways, coastal and harbor vessels or craft afloat. They are
not dock workers, or clearing and forwarding workers.” <o:p></o:p>

b.    
“The distinction between oil and gas and maritime workers is so glaring.
This distinction can never be disputed when properly investigated.”<o:p></o:p>

The respective parties filed and exchanged their briefs of
arguments. In the appellant’s brief of argument filed on the 11th of
April 2016 and adopted on the 29th of September 2016, learned
appellant counsel, Mr. O. A. Nwachukwu, after the introduction and brief review
of the facts leading to this dispute and the referral, submitted a sole issue
for determination as follows:<o:p></o:p>

Whether on the preponderance of
evidence adduced by the parties before the said Industrial Arbitration Panel
and by the provisions of extant laws the said Industrial Arbitration Panel was
not wrong in its award dated 17th day of March, 2015 in Suit No.
IAP/HB/3870 when it found and held that the Defendant/Respondent has
jurisdiction to organize the workers of Century Energy Service Limited and
awarded that Century Energy Service Limited shall accord recognition to the
maritime workers union of Nigeria as the lawful union to organize the workers
under their employ in line with the provisions of the Trade Unions Act 2004 and its relevant
amendments.<o:p></o:p>

Learned appellant counsel in his argument contended that the
IAP was perverse in its reasoning and conclusion and thus misdirected itself
when it relied on a strange document called “Guidelines on labour administration
issues in contract staffing/outsourcing in the oil and gas sector” purportedly
issued by the Federal Ministry of Labour and Productivity on the 25th
May, 2011. This wrong reliance, Counsel further contended made them to conclude
that Century Energy Services Limited was a service contractor to the oil and
gas companies who are owners of floating production storage and offloading
(FPSO), mobile offshore production unit (MOPU) and floating storage and
offloading (FSO). Counsel contended also that Century Energy Service Limited,
from all preponderances of evidence is a labour contractor.<o:p></o:p>

Counsel submitted that the IAP was bias and prejudiced
against the appellant when it openly demonstrated that by not affording it the
opportunity of addressing the panel on such issue before arriving at its award
thereby depriving the appellant fair hearing. Counsel emphasized on the absence
of any basis for the conclusion that Century Energy Service Limited is a
service contractor to Nigeria Petroleum Development Company Limited (NPDC), Agip and AFREN.<o:p></o:p>

It is the submission of Mr. Nwachukwu, learned Counsel to the
applicant, that a critical study of the Guidelines on labour administration,
issues in contract staffing, outsourcing in the oil and gas sector issued by
the Federal Ministry of Labour and Productivity on 25th May 2011,
and on proper construction and interpretation, will reveal that the contract
entered into by Century Energy Services Limited with oil and gas companies were
on recruitment of labour/workers, to operate, maintain and work on the oil and
gas industry facilities offshore and not as service contractor but as labour
contractors. Counsel relied heavily on the perceived misinterpretation of
paragraphs 12, 13 and 14 of the memorandum of the claimant filed on the 17th
February, 2015.<o:p></o:p>

It is the submission of Mr. Nwachukwu that the fact that
Century Energy Service Limited is a distinct legal personality within the
Century Group which comprises other subsidiaries carrying out oil and gas
activities, does not make it, i.e Century Energy Services Limited, part of the
service contractors to oil and gas companies that its workers can be forced
into and subscribe to the same terms and conditions of employment just because
the different corporate entities or companies that employ them are owned by a
purported group. He contended that the holding of the  IAP to the effect that the articles and
memorandum of association of Century Energy Services Limited in its object
clause carry out maritime activities as marine agents should be discountenanced
by this Court on the ground that the Blacks Law Dictionary Ninth Edition
at page 1053 does not contemplate such definition of ascribing same meaning of
marine agency to the meaning of maritime business and economic activities. This
agency duties, counsel contended had taken Century Service Limited to the level
of sending managers and operators to the offshore oil and gas facilities/installations
and maintain same as agents in place of the oil and gas companies and for the
benefit of the oil and gas companies as principals whose agency activities are
binding and thus, its workers belong to the oil and gas sector and not maritime
as the workers of Century Energy Service Limited do not fall under the
jurisdictional scope of Maritime Workers Union of Nigeria. Learned Counsel referred the
Court to the memorandum filed by the claimant, the specific paragraphs and the
annexures argued before the IAP. Counsel reiterated his position to the effect
that Century Energy Services Limited is an oil and gas industry company than
maritime industry company and he urged the Court to so hold.<o:p></o:p>

Learned appellant Counsel referred to the provision of
section 136 of the 2011 amended Evidence Act and the case of Purification
Technique Nigeria Limited and ors v. Rufai Jubril and ors [2012] All
FWLR (Pt. 642) 1657 at
1661 Ratios 2 and 3 to show that he who asserts must prove and the fact that
civil cases are determined on the balance of probabilities. Counsel faulted the
failure of the respondent to disclose in detail the Century Group subsidiaries
that are concerned with maritime activities when it is clear that Century
Energy Service Limited, Century Exploration and Production Limited and Gas Plus
Synergy are in the oil and gas industry business. Learned counsel referred the
Court to Annexures NUP1, NUP2, NUP3 and the relevant paragraphs of the
memorandum attached to the processes before the IAP to show that the appellant
is a major player in the oil and gas sector both upstream and downstream
sectors and urged the court to grant the prayers of the appellant. Counsel
urged the Court not to allow the attempt by the respondent to unionise all the
junior and intermediate workers of Century Energy Group without taking into
account where they work or the type of work they do as such action will amount
to travesty of justice. Counsel referred this Court to the case of NUPENG v. Maritime workers Union of Nigeria
(MWUN) [2012]
28 NLLR (Pt. 80) at 347 where it was held by this Court that the yardstick for
determining jurisdictional scope of a trade union is the type of work done and
the industry concerned. Counsel also contended that the averment before the
processes at the IAP to the effect that Century Energy Service Limited supply
and recruit staff and workers for oil and gas operation in the maintenance of
FFSO’s, MOPU and FSO had not been denied and as such evidence not denied ought
to have been admitted and acted upon to the advantage of the 2nd
party/claimant/appellant of which the IAP failed to do. Counsel referred the
Court to the case of Wheels and Brakes Limited v. Odo [2014] All
FWLR (Pt. 717) 773 at
776.<o:p></o:p>

Learned appellant Counsel further submitted that there is
nothing before the Court from the argument of the respondent right from the IAP
to show that the appellant is engaged in maritime and water transport business.
Learned counsel called in aid the Third Schedule Part B clause No. 3 of the
Trade Unions Act Cap T14 LFN 2004, Vol. 15 which defines the jurisdictional
scope of the Maritime Workers Union to include all workers in the Nigerian Port Authority,
Manning of Ocean going, inland waterways, Coastal and harbour vessels or craft
afloat, all dock workers, workings 
involve in shipping, clearing and forwarding agencies. Counsel itemize
the workers in the maritime sector to include<o:p></o:p>

a.    
Dock
Workers Union of Nigeria<o:p></o:p>

b.    
Nigerian
Port Authority Workers Union<o:p></o:p>

c.     
Nigerian
Union of Seamen and Water Transport Workers and<o:p></o:p>

d.    
Union
of Shipping, Clearing and Forwarding Agencies Workers of Nigeria.<o:p></o:p>

Counsel urged the Court to consider the purposes of the use
of the vessels on the sea and the role of the workers of FPSO, MOPU and FSO as
they do not fall into the classification of maritime even though they are
permanently fixed to the sea bed solely for sub-sea oil and gas exploration and
production purposes but not for navigation and commerce.<o:p></o:p>

Counsel opined also that although FPSO, MOPU and FSO are
marine vessels because they are facilities used offshore in the sea by the oil
and gas companies for their offshore production operations they are not
maritime vessels as they were not used in the sea for navigation or commerce as
not all vessels in the sea that are used for maritime industry business.<o:p></o:p>

Counsel contended also that the palpable defects in the
argument of the respondents submissions arisen from the non-disclosure of
material facts cannot be cured by any brilliant argument of counsel. Counsel
cited the case of Ajayi v. Total Nigeria Plc [2014] All FWLR (Pt. 719) 1069 at 1072 Ratio 5.<o:p></o:p>

Furthermore, learned appellant counsel contended that the
Coastal and Inland Shipping Cabotage Act 2003 and the NIMASA Act 2007 has nothing to do with
the determination of the jurisdictional scope of the appellant as their
workplace is offshore or in a place above Nigerian waters. The Century Energy
Services workers, counsel argued, never registered as seafarers or dock workers
with NIMASA and there is no evidence to that effect. Counsel pointed this Court
to the use of the words “Energy” and the word “Services” to prove that these key words give meaning
and direction to the Century Energy Services Limited to the objects of the
company within the jurisdictional scope of the appellant, workers of Century
Energy Services Limited working with FPSO, MOPU, FSO operating and maintaining
the same, are workers classified under oil wells, drilling, natural gas and
extraction of crude oil business within the meaning of the Third Schedule Part B No. 13 of the Trade Unions Act Cap T14
LFN 2004 Vol. 15. Learned counsel, therefore, on the basis of all his
submissions and contentions urged the Court to grant all the prayers of the
appellant.<o:p></o:p>

In its reaction, the respondent filed a respondent’s brief on
the 29th of September 2016 but dated the 8th of September
2016. After the introduction in his brief, learned respondent counsel submitted
a sole issue for determination by the court which is:<o:p></o:p>

“Whether the award of the Industrial
Arbitration Panel dated 17th day of March 2015 in suit No
IAP/HB/3870 holding that Century Energy Services Limited shall accord
recognition to the Maritime Workers Union of Nigeria as the lawful union to
organize the workers under their employ in line with the provisions of the
Trade Unions Act 2004 and its relevant amendment should on the merit be
confirmed or upheld by this Honourable Court.<o:p></o:p>

In his argument, learned respondent counsel Rotimi Sanni Esq.
repeated his submissions on the processes filed at the IAP but posited
specifically that the Century Energy Service Limited is a service company to
Nigeria Petroleum Development Company (NPDC) and other sister companies in the Century
Group as it supplies labour to man and operate their FPSO FSO and MOPU and
other vessels. Learned counsel referred the court to <o:p></o:p>

(1)  Third Schedule Part B clause 3 of the TUA Cap
T14 LFN 2004.<o:p></o:p>

(2)  Coastal and Inland Shipping Cabotage Act 2003
and <o:p></o:p>

(3)  Nigerian Maritime Administration and Safety
Agency Act 2007<o:p></o:p>

(4)  Section 88 of the Labour Act Cap L1 LFN 2004
which gives powers to the Minister of labour to issue guidelines on labour
administration issues in contract staffing/outsourcing in the oil and Gas
sector dated 25th May 2011.<o:p></o:p>

The guidelines, counsel contended are to deal with the
situation of outsourcing non-core operations of companies of which Century
Energy Services Limited is one of them. Counsel referred to paragraphs 2.7 and
2.8 of the appellant’s written address at IAP where the relationship of Century
Energy Services Limited with their client was described as that of services
contractors. Counsel stated that evidence before the IAP shows that Century
Energy Group has about nine subsidiaries, majority of which are in the maritime
business. The Century Energy Services Limited clients facilitates such as FPSO,
FSO and MOPU and are all tied down to its outsourcing and servicing business.<o:p></o:p>

Learned counsel contended that it is the economic activity of
the employer that determines the union of such workers; he stated further that
the Century Energy Services client facilities such as FPSO, FSO and MOPU etc
are converted vessels, ships, retrofitted for use in the production,
transportation storage and offloading of oil and gas offshore and the law
refers to these as ocean going, inland waterways coastal and labour vessels or
craft afloat. Counsel reiterated his submissions on the fact that it is the
Cabotage Act 2003 and NIMASA Act 2007 that stipulates qualification for
registration of dock workers and seafarer. On the other hand, counsel submitted
that the TUA Cap T14 LFN delineates the jurisdiction of unions in organization
of workers for collective bargaining.<o:p></o:p>

Counsel finally urged the Court to uphold the IAP award.<o:p></o:p>

We have carefully read and considered the various briefs of
the parties, the issue formulated for determination and the authorities cited
therein.<o:p></o:p>

Following an award duly given by the IAP on the 17th
of March 2015, and communicated to parties by a notice of award which
culminated into a notice of objection, the Honourable Minister of Labour and
Productivity referred the dispute to this Court through an instrument. The
issue in dispute specifically stated is:-<o:p></o:p>

Inter Union trade dispute based on
jurisdictional scope issued in century energy (Nigeria) ltd between the
Maritime Workers Union of Nigeria (MWUN) and the National Union of Petroleum
and Natural Gas workers”.<o:p></o:p>

From the records and from arguments of learned counsel in
this matter, the fact posited by both parties goes to the effect that Century
Energy Services Limited is part of the Century Group.<o:p></o:p>

The activities and objects of Century Energy Services Limited
border and revolve around outsourcing and training of personnel and workers for
other outfits dealing in oil and gas. Outsourcing of core operation in the
maritime and oil and gas sector is not new.<o:p></o:p>

Century Energy Services Limited as shown in this case is engage
in the provision of services in respect of FPSOs, FSOs and MOPUs to oil
companies. In determining the nature of relationship Century Energy Services Limited has with its clients as
service contractors or labour contractors for the purposes of deciding the
issue of unionization of outsourced workers, the issue of jurisdiction scope
has to be examined.  It has been decided
by this Court that the type of work done and the industry is the yardstick for
determining jurisdictional scope. The status, position and the work of the
workers in question must also be considered. See the cases of NUPENG v. MWUN [2012] 28 NLLR (Pt. 80) 309 and PERESA v. SSAGOC [2009] 14 NLLR (Pt. 39) 345.<o:p></o:p>

The question that demands answer by this Court seems to be
whether or not the workers supplied by Century Energy Services Limited to man
and operate the FPSO, FSO and MOPU are by training and their duty essentially
maritime workers offering services to the oil and gas sector. The object clause
of Century Energy Services in paragraph 3:I of its memorandum and article of
association reads:<o:p></o:p>

“To engage in the business of maritime
agency and to carry on any other business in connection with the above
mentioned business that are customarily or usually carried on in connection
therewith or incidental thereto”.<o:p></o:p>

From the interpretation of this clause, the Century Energy Services Limited has as its object some
element of maritime activities. It can also carry out other activities
associated with such concerns. There is no doubt that these FPSO, FSO and MOPU
are vessels by their very nature and from the submissions of parties in this
case. These vessels or ships are used in the storage, transportation and
offloading of oil and gas offshore.  <o:p></o:p>

In marine nomenclature, they are regarded as ocean going,
inland waterways, coastal and harbour vessels and craft afloat. These are
clearly captured in Part B of the Third Schedule clause 3 of the Trade Unions
Act Cap T14 LFN 2004 and section 2 of the Coastal and Inland Shipping Cabotage Act 2003. These
FPSOs, FSO and MOPUS are floating and mobile articles in the maritime
nomenclature even though, among these three facilities, MOPU has an element of
production that is mobile during navigation and in all these three facilities,
seafarers and dockworkers are engaged and on ground constantly on duty. In the
case of NUPENG v. Maritime Workers Union of Nigeria [2012] 28 NLLR (Pt. 80) 309 this
Court held as follows:-<o:p></o:p>

“…dockworkers come within the
jurisdictional scope of the respondent, Maritime Workers Union of Nigeria. The labour
supplied by POLMAX Nig. Limited to Chevron Nigeria Limited consist dockworkers
who belong to the maritime industry. The type of work done and the industry is
the yardstick for determining jurisdictional scope”.<o:p></o:p>

The decision in the above case applies mutatis mutandis
to the instant case.  In determining
which of the unions between NUPENG and MWUN has the right to unionise the
workers of Century Energy Services, it is imperative that the activities of Century
Energy Services Ltd is well defined and known. In this context, the appellant has
identified it as a service contractor to the companies engaged in oil and gas
business.  Since the outsourced workers
on facilities in the sea such as vessels and ships, they are classified as
dockworkers and seafarers.<o:p></o:p>

The appellant counsel has copiously and vehemently referred
to the bias and prejudice of the IAP members. 
<o:p></o:p>

In view of this allegation, we decided to comb the entire
processes and proceedings of the IAP and we did not seen any scintila of
evidence of such bias and prejudice as alleged by learned appellant counsel.<o:p></o:p>

It is trite law that the employer has the duty to grant
recognition to union to access eligible workers of the trade union who
voluntarily want to belong. See CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 and NUSDEE
v. SEWUN [2013] 35 NLLR (Pt. 106) at 606.<o:p></o:p>

Given the reasoning and conclusions stated above, we find no
merit in the appellant’s case. Consequently, it is accordingly dismissed and
the award of the Industrial Arbitration Panel dated the 17th of
March 2015 is hereby confirmed. We make no order as to cost.<o:p></o:p>

__________________________<o:p></o:p>

Hon. Justice
B. B. Kanyip Ph.D<o:p></o:p>

Presiding
Judge<o:p></o:p>

________________________                
          _______________________<o:p></o:p>

Hon. Justice M. N. Esowe                                                 Hon. Justice P. O. Lifu<o:p></o:p>

Judge                                                                                   Judge<o:p></o:p>