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IN THE NATIONAL INDUSTRIAL COURT HOLDEN IN LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo - President Bon. Justice B. B. Kanyip - Judge Hon. Justice M. B. Dadda - Judge Date: July 17, 2007 Suit No. NIC/10/2004 BETWEEN Maritime Workers Union of Nigeria - Appellant AND Agricultural and Allied Workers Union - Respondent REPRESENTATION Bamidele Aturu Esq., for the appellant. T.S. Adewuyi Esq., for the Respondent. JUDGMENT The Hon. Minister of Labour and Productivity pursuant to section 13(1) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990, as amended, referred this matter to this court vide letter Ref. No. HE/833/CON.1/31 dated 27th October, 2004 and attached thereto a referral instrument of August, 2004. The court is asked to inquire into the trade dispute between the Agricultural and Allied Workers Union of Nigeria (AAWUN) and Maritime Workers Union of Nigeria (MWUN) over the following point:- Poaching of members of Agricultural and Allied Workers Union of Nigeria (AAWUN) - (Fishing Operative) with Member Company of Nigeria Trawlers Owners Association (NITOA). When the matter came up for mention on 1st February 2004, the parties were ordered to join issues by filing their respective memorandum. This they did but out of time. After the necessary applications, the court granted the parties' prayer to deem as properly filed and served the respective memorandum. Thereafter, the parties respectively adopted their memorandum, having agreed to argue the matter on record. The contention of the counsel to the appellant is that this is an appeal against the award of the Industrial Arbitration Panel (IAP). The appellant had filed an objection to the IAP award with the Minister of Labour, Employment and Productivity, contending that the objection constitutes an appeal and hence a stay of execution under section l3(1) and (2) of the TDA 1990. The respondent had in a complaint or declaration of trade dispute lodged with the Hon. Minister of Labour, Employment & Productivity alleged that the appellant was poaching workers of the Nigeria Trawlers Association. In other words, that the appellant was unionizing or organizing workers who work on fishing trawlers who ought, according to them, to be unionized by the respondent. The Minister then referred the dispute to the IAP for consideration and arbitration. To the appellant, the Chairman of the IAP purportedly constituted a tribunal under section 8(3) of the TDA 1990 to inquire into the dispute. The appellant then contended that in constituting the said tribunal the parties herein were not consulted, let alone being asked to nominate any of the arbitrators that enquired into the dispute. That the IAP made an award in favour of the respondent, which award the appellant is presently contesting in this court. The appellant then submitted that the term of reference in this matter is legally unsupportable. That the reference must be based on the objection of the appellant and so must not depart from the grounds of objection otherwise it would be incompetent. He argued that the issues which arise for determination by this court must now or arise from the grounds of objection, referring the court to the case of Oikherhe v. Inwanfero [1997] 7 NWLR (Pt. 512) 226 at 246, where it was held that: An issue for determination necessarily must arise from and relate to the ground of appeal filed and no more. The counsel went further to say that the Supreme Court has held in a long line of decided cases that where issues for determination do not arise from the grounds of appeal, the issues are incompetent and are to be struck out; once again referring the court to the case of Oikherhe, supra where it was further held that: An issue for determination which has no ground of appeal to support it is worse than useless: Oshinupebi v: Saibu & ors [1982]. 7 SC 104, 110 - 111. No one formulates an issue for determination, "in nibibus" or "in abstracto", hanging in the air. No. The appellant argued further that the grounds of objection to an award of the IAP is analogous to grounds of appeal in non-specialized courts and the term of reference is also analogous to the issue for determination. The appellant then urged the court to discountenance the term of reference not based on the ground of objection. The appellant then submitted that having regard to the ground of objection, the following issues arise for determination in this appeal: i. Whether the IAP had jurisdiction to adjudicate over the dispute, considering the fact that there was no trade dispute between the parties which the Honourable Minister of Labour could lawfully refer to the IAP under section 8 of the TDA. ii. Whether the Panel of the IAP was properly constituted in accordance with law. iii. Whether the IAP did not misconduct itself in the way and manner it - arbitrated the dispute. On the first issue framed by the appellant, the appellant contended that the IAP is seized with jurisdiction to hear and adjudicate disputes only to the extent that such jurisdiction is conferred upon it by TDA. The appellant then cited section 8(1) of the TDA and argued that a reading of sections 1, 4 and 5 of the TDA shows that the type of disputes envisaged under section 8(1) for referral to the IAP is a trade dispute. The appellant then submitted that a clear meaning of the term "trade dispute" as used in the TDA can be gleaned from section 47 of the TDA which defines 'trade dispute' to mean "any dispute between employers and workers or between workers and workers, which is' connected with the employment or non-employment and physical conditions of work of any person". That this definition was adopted and given judicial backing in the case of Daniel v. Fadugba [1998] 13 NWLR (Pt. 582) 482. According to the appellant, the dispute before this court does not have anything to do with employment or working conditions of any person and as such it does not qualify as a trade dispute within the meaning of the Act. The appellant urged the court to hold that the IAP does not, therefore, have jurisdiction to adjudicate on it. Regarding the second issue framed by the appellant, the appellant contended that jurisdiction is fundamental to the competence of any proceeding before a judicial body. That where a court lacks jurisdiction all proceedings before it are incompetent and that you cannot build something on nothing and expect it to stand, referring the court to the case of Egypt Air v. Abdullahi [1997] 11 NWLR (Pt. 528) 179 where it was held that "it is trite that a court can only be competent if among other things all the conditions to it having jurisdiction are fulfilled". To the appellant, the panel of the IAP was improperly constituted in so far as it did not conform with the express stipulations laid down in section 8(3), (4) and (5) of the TDA and that the said section 8(3) specifically provides for the mode of empanelling the arbitrators, which must be complied with strictly. That section 8(2) provides for how multiple arbitrators are to be empanellcd and that parties to the dispute ought to nominate the arbitrators. That none of the parties was consulted in any way, shape or form before the panel was constituted, nor were any nominations made by worker friendly organization as required by statute. The composition of the panel, the appellant argued, is in violation of the provisions of section 8(4)( c) and is - improper given that there was no input of the parties. As a rider to this, the appellant submitted that the jurisdiction of the panel is totally impaired as proper composition has been held to be fundamental to jurisdiction, referring the court to the case of Egypt Air v. Abdullahi, supra. That this case held that a court is said to be competent when, inter alia, it is properly constituted as regards qualifications of the members of the bench and no member is disqualified for one reason or another; and that any defect in competence is fatal for the proceedings are a nullity no matter how well conducted and decided. The appellant rounded up by submitting that all the proceedings before this improperly constituted panel of the IAP are thus a nullity. The appellant then urged the court to so hold. On the third issue the appellant framed, the appellant contended that by failing to consider and apply the decision of a superior court on an issue which was similar to those before the IAP, the IAP must be held to have erred in its decision. To the appellant, this submission is based on the fact that considering the jurisdictional scope of Maritime Workers Union of Nigeria, the IAP failed to decide one way or another the binding nature of the case authority cited by counsel to the second party, which is Ocean Fisheries (Nigeria) Limited & anor v. Nigerian Merchant Navy Officers I and Water Transport Senior Staff Association unreported Suit No. NIC/8/93, where this court held that the Nigerian Merchant Navy Officers' and Water Transport Senior Staff Association could unionize workers who were fishermen. That failure to consider itself bound by a judgment of a superior court, the counsel argued it as tantamount to judicial impertinence. He then cited the case of Reckitt v. Gongoni, [2001] 8 NWLR (Pt. 716) 592 where the court held that "a judge of the High Court is bound to follow the decision of the Court of Appeal. By virtue of the doctrine of stare decisis, he is bound by the decision of the court. Refusal of the High Court to follow a binding decision of the Court of Appeal, which is on all fours with the case being adjudicated upon amount to insubordination, arrogance, judicial irresponsibility and judicial impertinence". The appellant further contended that, in any event, by virtue of section 2 of the Trade Unions (Amendment) Act 2005, no worker can be compelled to belong to any union under our laws anymore. In other words, union membership is no longer automatic. On this ground alone, the counsel prayed the court to strike out the complaint of the respondent before the IAP. The respondent on its part opened their case with an introduction, on how the matter came to the IAP through a referral by the Minister of Employment, Labour and Productivity vide an instrument dated 28th November, 2002, The Minister, acting on the powers conferred on him by section 8 of the TDA, requested the IAP to look into the matter and settle it. That the parties and their respective counsel participated throughout the proceedings at the IAP. That witnesses to the parties were invited and several documents tendered before the IAP considered the case and made an award in favour of respondent. The respondent then went on to submit that both parties in this case were registered as unions and were given jurisdictional scope as contained in the Trade Unions Act (TUA) Cap. 437 LFN 1990, as amended. That the jurisdictional scope of the respondent is provided for by the Trade Unions (Amendment) Decree NO.1 of 1999 in the following words- Workers in all agricultural and livestock production, plantations; agricultural services including animal husbandry; fishing and horticulture; veterinary services, pest control; irrigation services (River Basin services). Forestry, logging and game reserves. Agricultural Research Institution. While the appellant's jurisdictional scope is provided for by the Trade Unions (Amendment) (No.2) Decree No. 26 of 1996 in the following words – All workers in the Nigerian Ports Authority and all persons employed in the manning of Ocean going, Inland Waterways, Coastal and harbour vessels or crafts afloat. All dock-workers including workers engaged by shipping, clearing and forwarding agencies, but excluding managerial, professional and administrative staff. This jurisdictional scope of the appellant remained unaffected by Decree 1 of 1999 The respondent then contended that it is the respondent trade union that has exclusive jurisdiction to unionize workers in fishing companies. That fishing companies and their staff carry out fishing which is a process of harvesting fish and other biological aquatic resource from sea. That AAWUN has been the only union unionizing workers in that company until in the year 2001 when appellant started to poach members of respondent in the said companies. The respondent then referred the court to ILO Right of Association (Agriculture) Convention No. 11 of 1921 dealing with the rights of association and combination of agricultural workers ratified by the Federal Government of Nigeria in 1960. That this Convention covers fishermen (artisans and industries) as practitioners who have the right to associate with agricultural workers. The respondent then contended that the Convention made it mandatory for all legal institutions to recognize the right of association and combination of all persons engaged in agriculture. The respondent went on to submit that unionization in the fishing industry by AAWUN is supported by the ILO Convention and the various Trade Union Acts/Decrees since 1978, all of which have not tampered with the jurisdictional scope of AAWUN in the fishing industry. The respondent went on to state which Ministry/Ministries monitor and control either agricultural or maritime workers. The respondent also specified how occupational nomenclature of the staff also reflects their training and the duties they perform. The respondent then submitted that it was on the basis of these submissions that the IAP held that regarding fishing operatives with the member companies of the Nigeria Trawlers Association, AAWUN is the only union recognized by the TUA, as amended, to receive check-off dues from such fishing operatives. The respondent went on to submit that the contention of the appellant that "there is no trade dispute between the parties which the Hon. Minister could lawfully refer to the IAP", has no basis. To the respondent, there was a trade dispute declared by the respondent, which was validly referred to the IAP by the Hon. Minister of Labour and Productivity (a copy was attached to the respondent's memorandum). The respondent referred the court to NURTW v. Ogbodo [1998] 2 NWLR (Pt. 537) 189 and AG Oyo State v. NLC [2003] 8 NWLR (Pt. 821) where the conditions for the existence of a trade dispute were highlighted as follows: (a) There must be a dispute. (b) The dispute must involve a trade. (c) The dispute must be between (i) Employers and workers (ii) Workers and workers (d) The dispute should be connected with (i) The employment or non-employment, or (ii) The terms of employment, or (iii) Physical conditions of work of any person. On this, the respondent submitted that the question, which union should unionize or collect check-off dues from workers in the fishing industry is one that is connected with the employment or non employment or terms of employment or conditions of work or service. That when a trade union complains that a union is trying to collect check-off dues from workers that are its members or workers that are supposed to be its members, as in the instant case, that complaint is a trade dispute and can properly be heard under the dispute resolution processes of the TDA 1990, referring the court to the case of AG. Oyo State v. NLC [2003] 8 NWLR. (Pt. 821). The respondent argued further that the appellant participated fully in the proceedings at the IAP by calling witnesses to give evidence on its behalf and the witnesses acknowledged the existence of a trade dispute between the parties; and also that the appellant engaged the services of a counsel to represent it. Also, that prior to the reference of the matter by the Minister to the IAP, there was unsuccessful mediation by the Federal Ministry of Labour and Productivity, That it is too late for the appellant to claim that there was no dispute between the parties. The respondent then contended that the IAP that looked into the dispute between the parties was not bound by the NIC decision in the case of Ocean Fisheries (Nigeria) Limited & anor v. Nigeria Mercantile Navy Officers' and Water Transport Senior Staff Association, supra, since none of the parties in the present dispute was a party to that suit. On the issue relating to the Trade Unions (Amendment) Act, 2005, the respondent contended that the Act does not remove the jurisdictional scope of trade unions. That the workers in the fishing industry are voluntary members of the respondent union and the Trade Unions (Amendment) Act, 2005 has not taken that away. The respondent then concluded that the IAP rightly found that workers in the fishing industry are members of the respondent union; and so the IAP was also right when it ordered that the appellant union should desist from poaching members of the first party who are workers with member companies of the Nigeria Trawler Owners Association (NITOA). The respondent then urged the court to dismiss the appeal and uphold the decision of the IAP. The processes and submissions of the parties in this matter have been carefully considered. The appellant had argued, regarding the first issue, that there was no trade dispute between the parties, which the Hon. Minister could lawfully refer to the IAP under section 8 of the TDA. It is difficult to agree with this contention. The cause of action in this matter arose before the coming into effect of the National Industrial Court (NIC) Act No.1 of 2006. This means that the law applicable to the matter is the TDA as it stood prior to the passing of the NIC Act 2006. Under this dispensation i.e. prior to the passing of the NIC Act, this court held in several cases that recognition matters including issues of check-off dues qualify as trade dispute matters for which the IAP and this court have jurisdiction; and that even if they do not qualify as trade disputes, they are matters provided for under the TUA for which the IAP and this court have jurisdiction. See the decisions of this court in Corporate Affairs Commission v. A UPCTRE [2004] 1 NLLR (Pt. 1) 1 at 24 - 25 and Mix and Bake Flour Mill Industries Ltd v. NUFBTE [2004J 1 NLLR (Pt. 2) 247 at 276 - 277. It is therefore; idle for the appellant to argue that the matter at hand is not a trade dispute. In any event, section 24 of the TDA, before its repeal by the NIC Act 2006, provided that 'a right of appeal shall lie to the [NIC] from the awards of the IAP which shall be exercisable in the case of. .. inter-union trade disputes arising from the restructuring of trade unions established under the [TUA]' (emphasis is ours). In other words, even the TDA recognised that disputes arising from restructuring of trade unions, which essentially deal with disputes as to jurisdictional scope, qualify as trade disputes given the reference to 'inter- union trade disputes' in the said section 24 of the TDA. The Minister of Labour was, therefore, right to have referred the matter to the IAP and from which the present appeal is being entertained. The second issue argued by the appellant, that the IAP was not properly constituted when it entertained the matter, must also fail. Whatever may be the defect in the composition of the panel that heard the matter at the IAP is cured by section 11 (4) of the TDA. A similar argument had previously been made, and which this court rejected, in Mix and Bake v. NUFBTE, supra, at p. 279. The attempt by the appellant to predicate its case on the Trade Unions (Amendment) Act, 2005 must also fail given that the cause of action in this matter arose before the passing of that Act. The appellant had also argued that the IAP erred in not applying the decision of this court given in Suit No. NlC/8/93. This argument of the appellant is misplaced given the plethora of amendments that have attended the TUA regarding the jurisdictional scope of unions in the country. As at the time the cause of action in this matter arose, jurisdictional scope of trade unions was statutorily regulated. In this wise, as reproduced earlier, Decree 26 of 1996 provided for the jurisdictional scope of the appellant union, while Decree 1 of 1999 provided for the respondent union. Applying these statutes to the matter at hand, it will be seen that Decree 1 of 1999 clearly vests the jurisdiction over workers in agricultural services including fishing on the respondent union. It is trite learning that statutory provisions are superior to case law. This statutory provision, therefore, overrides this court's decision in Suit No. NIC/8/93. The IAP did not, therefore, err in not applying the decision to the matter before it. For all the reasons given above, this appeal hereby fails. The award of the IAP in this matter is consequently upheld. Judgment is entered accordingly. ………………………… Hon. Justice B.A. Adejumo President …………………………. …………………………… Hon Justice B.B. Kanyip Hon. Justice M.B. Dadda Judge Judge