NATIONAL UNION OF HOTELS AND PERSONAL SERVICES WORKERS AND 1. NATIONAL UNION OF FOOD, BEVERAGES AND TOBACCO EMPLOYEES 2. UAC OF NIGERIA PLC. (OWNERS OF MR. BIGG’S RESTAURANTS) (NATIONAL INDUSTRIAL COURT) HON.JUSTICEB.A.ADEJUMO - PRESIDENT PROF. B.B. KANYIP - MEMBER BARRISTER M.B.DADDA - MEMBER SUIT NO: NIC/17/2002 DATE OF RULING - JUNE 30, 2004 CONSTITUTIONAL LAW Trade Disputes Act - Processes thereunder -Graduated system of- Constitutionality of Section 36(1), (2) & (3), 1999 Constitution considered. COURT Jurisdiction of court-What determines. LABOUR LAW Trade union - Inter and intra-union disputes - Commencement of - Whether can be commenced at the National Industrial Court -Relevant governing statutory provisions. LABOUR LAW National Industrial Court - Jurisdiction of -Scope of - Jurisdiction of over inter and intra-union disputes - Appellate nature of -Relevant governing statutory provisions. LABOUR LAW Trade dispute - Dispute arising from restructuring of trade unions – Whether constitutes a trade dispute. LABOUR LAW Trade dispute - Trade Disputes Act - Processes thereunder - Graduated system of - Constitutionality of- Section 36(1), (2) & (3), 1999 Constitution considered. NATIONAL INDUSTRIAL COURT Jurisdiction of National Industrial Court -Scope of- Jurisdiction of over inter and intra union disputes - Appellate nature of -Relevant governing statutory provisions. TRADE DISPUTE Dispute arising from restructuring of trade unions-Whether constitutes a trade dispute. TRADE DISPUTE Trade Disputes Act -Processes thereunder -Graduated system of - Constitutionality of -Section 36(1), (2) & (3), 1999 Constitution considered. ISSUES 1. Whether the issue in dispute is an inter-union dispute. 2. If the answer to the above question is in the affirmative, whether the jurisdiction of the court to hear the matter is original or appellate. FACTS The Applicant and the P Respondent are trade unions registered and recognized by law in Nigeria. The 2 Respondent is a company registered in Nigeria. The Applicant applied to the National Industrial Court to interpret the jurisdictional scope of the two unions, the Applicant and the 1 Respondent, as contained in the Third Schedule, Part B of Decree 4 of 1996 as to which of them should unionize and collect check-off dues of the workers in Mr. Bigg’s Restaurant owned by UAC Nigeria Plc, the 2 Respondent. The 1St Respondent filed a notice of preliminary objection urging the court to strike out the matter on the grounds that the subject matter was an inter-union dispute, which could only be proceeded with upon reference from the appropriate authority, and secondly that the jurisdiction of the court to entertain the matter was strictly appellate, not original. As the preliminary objection challenged the jurisdiction of the court, the court directed that it should be heard first, and parties were asked to address the court on it. HELD: (Dismissing tile suit): 1. On Scope of jurisdiction of National industrial Court - To determine the jurisdiction of the National Industrial Court, the starting point is section 19(1) of the Trade Disputes Act, which established the court, and then provides that the court shall have such jurisdiction and powers as are conferred on interpretation of collective agreements and matters connected therewith. The scope of jurisdiction and powers is thereafter regulated by other provisions of the Trade Disputes Act, for instance sections 15,20,21,24 and 50. Section 20(1) gives the court jurisdiction to make awards for the purpose of settling trade disputes, and to determine questions as to interpretation of any collective agreement, award made by the Industrial Arbitration Panel (IAP) or the court, and terms of settlement of any trade dispute as recorded in any memorandum under section 7 of the Trade Disputes Act. Section 15 then reinforces the interpretative jurisdiction of the court regarding collective agreements. Section 21 provides that appeals shall lie as of right from the decisions of the IAP to the court in matters of disputes conferred upon it by section 20. Section 24 provides for a right of appeal from the awards of the IAP in respect of certain intra-union disputes and inter-union disputes. Section 50 recognizes and then grants the power to appoint a public trustee to manage the affairs and finances of a union involved in intra-union dispute to both the IAP and the court. In 1992, Decree 47 of that year added a new section 1A to the Trade Disputes Act, under which no action relating to a trade dispute, intra or inter-union dispute shall be commenced in any court of law in Nigeria. The cumulative effect of all these provisions is that both the IAP and the court are seized of jurisdiction in accordance with the tenor of the Trade Disputes Act in respect of trade disputes, inter and intra-union disputes. Sections 24 and 50 presuppose that the IAP can entertain inter and intra-union disputes. Otherwise, the question of appeals to the court from the IAP or appointment of a public trustee by the IAP is meaningless. 2. On whether cases of inter and intra-union disputes can be commenced at the National Industrial Court - By section 1A to the Trade Disputes Act as amended by Decree No.47 of 1992, no action relating to a trade dispute, intra or inter-union dispute shall be commenced in any court of law in Nigeria. The National Industrial Court being a court of law, the intention of the framers of Decree 47 of 1992 must be that inter and intra-union disputes should first go through the processes of Part 1 of the Trade Disputes Act, given that the processes are not judicial in the strict sense. Consequently, the jurisdiction of the court in cases of inters and an intra-union dispute is appellate and not original. To hold otherwise will mean that in relation to inter and intra-union disputes, the court will be just a one-stop court with litigants not having the benefit of a second review or appellate hearing except on questions of fundamental rights, the only ground presently allowed for appeals to the Court of Appeal from decisions of the court. In the instant case, the dispute between the parties was an inter-union dispute within the contemplation of section 24 and 1A of the Trade Disputes Act, (as amended), which could not be heard by the court as a court of first instance. 3. On Constitutionality of the graduated processes under the Trade Disputes Act - The Trade Disputes Act processes admit of a graduated system where an aggrieved party can move from one to the others. If mediation fails, there is conciliation. If conciliation fails, there is arbitration. And if arbitration fails, there is adjudication in the National Industrial Court. Even if adjudication fails, there is limited appeal to the Court of Appeal. By section 36(2) of the 1999 Constitution, the Trade Disputes Act processes cannot be invalidated by reason only that they confer on any government (Federal Ministry of Labour) or authority (the Industrial Arbitration Panel) power to determine questions arising in the administration of a law (the Trade Disputes Act) that affects or may affect the civil rights and obligations of any person (the Applicant). This is because, the Trade Disputes Act provides an opportunity for the Applicant to make representations to the administering authority (both the Federal Ministry of Labour and the IAP) before the authority makes the decision affecting the Applicant, and there is no provision making the determination of the administering authority (both the Federal Ministry of Labour and IAP) final and conclusive. 4. On Constitutionality of the graduated processes under the Trade Disputes Act - The Trade Disputes Act processes do not offend section 36(1) of the 1999 Constitution. They squarely fall within the ambit of section 3 6(2) of the 1999 Constitution. Also the processes do not offend section 3 6(3) of the 1999 Constitution. Not only do parties to the dispute have the right under section 12 of the Trade Disputes Act to object to an IAP award; where there is, however, no objection and the award is then confirmed, the IAP award must be gazetted as enjoined by section 12(4) of the Trade Disputes Act. The above provisions of the Trade Disputes Act meet the constitutional tenor of section 36 of the 1999 Constitution. In the instant case, having started with the Federal Ministry of Labour, the Applicant effectively utilized the processes of Part 1 of the Trade Disputes Act and it was only necessary that the Applicant should have been patient enough to exhaust the above processes before coming to the National Industrial Court. 5. On Whether a dispute arising from restructuring of trade unions constitutes a trade dispute - A dispute arising from the restructuring of trade union established under the Trade Unions Act is itself a trade dispute, even though it is an inter-union dispute. Put in the alternative, this specie of inter-union dispute is deemed by the Trade Disputes Act to be also a trade dispute. 6. On Determination of scope off jurisdiction of a court over cause of action - The statute establishing a court determines for the court what jurisdiction it has and how far that jurisdiction goes. Thereafter, a court must look at the cause of action before it to see if it comes within its jurisdiction.