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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice M. B. B. Dadda Judge Hon. Justice M. A. B. Atilola Judge DATE: OCTOBER 3, 2007 SUIT NO. NIC/36/2007 BETWEEN Oyo State Government Applicant AND 1. Aihaji Bashir Apapa (Chairman, Nigeria Labour Congress, Oyo State Chapter and Governorship Candidate of Labour Party). 2. Nigeria Labour Congress, Oyo State. 3. Alhaji O. Arowolo 4. Comrade Bayo Ajayi, Chairman and Secretary, Committee of Industrial Unions in the Public Service of Oyo State for themselves and on behalf of all Employees of the Oyo State Government and the Trade Unions in the Public Service of Oyo State, namely: i) Nigeria Union of Teachers, Oyo State Chapter ii) Nigeria Union of Local Government Employees (NULGE), Oyo State Chapter iii) Medical and Health Workers Union of Nigeria, Oyo State Chapter iv) National Union of Printing, Publishing & Paper Product, Oyo State Chapter v) Nigeria Civil Service Union, Oyo State Chapter vi) Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Service Employees, Oyo State Chapter vii) Agricultural and Allied Workers Union of Nigeria, Oyo State Chapter viii) National Association of Nigeria Nurses and Midwives, Oyo State Chapter ix) Radio, Television and Theatre Workers Union, Oyo State Chapter x) Nigeria Union of Civil Service, Secretarial and Stenographic Workers, Oyo State Chapter xi) Association of Senior Civil Servants of Nigeria Respondents REPRESENTATION Michael F. Lana, Attorney-General of Oyo State and with him are Mrs. H. M. Awosemuki, Legal Officer and 0. 1. Orobode, Legal Officer, for the applicant. Bamidele Aturu, and with him are Mrs. C. Anyanwu, Etti Umo-Adiasung, C. Nwolisa, Olajide Olakanmi and Tony Itedjere, fir the respondents. RULING On 28 August, 2007, the applicant filed four processes in this court, namely, an affidavit of urgency, a motion ex pane, a motion on notice and an originating summons. All these processes are dated 28 August, 2007. Both the motion exparte and the motion on notice are similarly worded, praying the court for an interlocutory injunction restraining the respondents from calling or embarking on or continuing with any strike or taking any action to prevent workers from coming to work pending the hearing of the originating summons. The originating summons on the other hand posed 10 questions for the determination of this court and then prayed the court for nine declaratory reliefs as well as two orders. All these processes have accompanying affidavits. Because the court directed that the respondent be put on notice in respect of all the processes, the applicant in consequence withdrew the motion exparte. In reaction to the applicant’s processes, the respondents on 1st September, 2007 filed an 11-paragraphed counter-affidavit to the applicant’s motion on notice of 28 August, 2007 and a preliminary objection and brought by way of a motion on notice pursuant to Order 3 Rules 1, 2, 4 and 7 of the National Industrial Court (NIC) Rules, 2007 and the inherent jurisdiction of the court praying for— 1. An order of this court striking out this suit in its entirety for want of jurisdiction. 2. Any other order(s) as the court may deem fit to make in the circumstance. The grounds upon which the preliminary objection is based are — a) The parties sued as the 1st to 4th respondents are not juristic persons. b) The suit is an abuse of court process. c) The suit does not disclose any reasonable cause of action. d) There is no claim against the l respondent. Attached to the preliminary objection is an 8-paragraphed affidavit sworn to by Chike Nwolisa, a counsel in the law firm of Bamidele Aturu with one accompany exhibit. Both the counter-affidavit and the preliminary objection are also dated 11th September, 2007. On 12 September, 2007, the applicant filed two affidavits (an 8-paragraphed counter-affidavit to the preliminary objection with one exhibit attached and a 5- paragraphed further affidavit sworn to by Tunde Busari, a civil servant in the employment of the applicant), seeking to establish that the applicant had withdrawn from the case between the parties referred to the industrial Arbitration Panel (IAP) by the Honourable Minister of Labour. It was originally agreed among the parties that both the preliminary objection of the respondents and the motion on notice of the applicant would be argued and one considered ruling given by the court with the ruling on jurisdiction given first. But when on 21st September, 2007 the respondents tiled a motion on notice praying, inter alia, for an order setting aside the dismissal of the entire Oyo State public officers by the applicant while this suit filed by the applicant is still pending, it was agreed among the parties that the two motions on notice of the parties (that of 28th August, 2007 and that of 2lst September, 2007) be suspended and the question of jurisdiction resolved first. It was further agreed among the parties that if the court rules that it has the jurisdiction to entertain the matter, it will be tidier and more expedient for the parties to then argue the substantive originating summons instead of expending energy and time on the motions, the determination of any of which would invariably touch on the substantive issues raised in the originating summons. The respondents’ case is that this court has no jurisdiction to entertain the applicant’s suit at all or as presented. To the respondents, it is trite law that there are four ingredients that must be present before an action can be competent and before a court can exercise jurisdiction. They are- 1. The court must be properly constituted with respect to the number and qualification of membership. 2. The subject matter of the action must be within the jurisdiction of the court. 3. The action must be initiated by due process of law. 4. All conditions to the exercise of jurisdiction must have been fulfilled. The respondents then referred the court to Attorney-General of the Federation v. Guardian Newspapers Ltd [1999] NWLR (Pt. 618) 187 at 233. The respondents then submitted that they have no problem with the first condition. That their objection lies with the 2nd — 4th conditions. Starting with the 3rd and 4th conditions, the respondents contended that the originating summons filed by the applicants on 28th August, 2007 and as amended on September, 2007 is grossly incompetent having not been initiated by due process of law in that the applicant has violated the relevant provisions of the NIC Rules 2007. That the applicant commenced this action by way of originating summons and so violated Order 3 Rule I of the NIC Rules 2007. That the applicant has chosen to approach this court through a wrong procedure. That Rules of court are not ornaments. They are meant to be obeyed, referring the court to Government of Anambra State v. ASCSN [2003] 1 NWLR (Pt. 800) 83 at 95. that to permit the applicant to proceed with this case will be to invite chaos to an otherwise peaceful administration of justice at this court. The respondents then urged the court to strike out the suit for gross irregularity und non-compliance with the NIC Rules. The respondents contended further that none of the respondents, as sued by the applicant, is a juristic personality that can be sued in a court of law. That the 2nd respondent is not a juristic personality, not having been created by any law or registered in that name by any authority in Nigeria. That where a party is not a juristic personality, the proper order that this court should make is to strike out the name of the party in the suit as the court lacks jurisdiction to entertain a claim against such an entity, referring the court to Iyke Med. Merch. V. Pfizer Inc. [2001] 10 NWLR (Pt. 722) 540 at 556 SC. The respondents submitted further that there is no person known as ‘Alhaji N. O. Arowolo Comrade Bayo Ajayi’. That the Committee of Industrial Unions in the Public Service of Oyo State for which ‘Alhaji N. O. Arowolo Comrade Bayo Ajayi’ is sued in a representative capacity is unknown to law. That the law is clear that one cannot sue a person on behalf of a non-juristic personality. The respondents then urged the court to strike out the name of ‘Alhaji N. 0. Arowolo Comrade Bayo Ajayi’, referring the court to Ejikeme v. Amaechi [1998] 3 N WLR (Pt. 542) 456 at 471. The respondents contended further that their affidavit in paras. 3 and 4 shows that there is a pending trade dispute between the parties at the IAP for which the parties are essentially the same with those in the present matter before this court The respondents then referred the court to para 6(1) and (6) of the applicant’s counter-affidavit to the preliminary objection where the applicant deposed that they did not take the matter to the IAP, and that in any case, they have pulled out of the matter at the IAP by a mere letter. That it is, however, the law, as per the Trade Disputes Act (TDA), that the Minister of Labour can refer cases to the IAP. That there is no section in the TDA that permits the Minister or the parties to withdraw a matter which has been referred to the IAP. The respondents then submitted that the purported withdrawal of the pending IAP suit is a nullity. Furthermore, that the existence of the IAP suit and the one before this court constitutes a gross abuse of the process of this court, referring the court to Mini Works v. Tomas Nig. Ltd [2002] 2 NWLR (Pt. 752) 740 at 778 — 779 where the court held that multiplicity of action is an abuse of court process. To the respondents, it is almost impossible to exercise jurisdiction of this court in section 7(1)(c) in a case relating to wage dispute without violating all the existing sections of the TDA relating to mediation, conciliation and arbitration. That this court has no jurisdiction and so the matter should be struck out with cost. In replying to the respondents’ submissions, the applicant urged the court to note that the NIC Rules were only given to them on 13th September, 2007. That the modern tendency is that parties can approach the court through any process without detriment to their actions. That it is not mandatory that only by complaint can this court be approached, referring the court to Order 3 Rule 1 and Order 5 Rules 1 and 3 of the NIC Rules and urging the court to exercise its power under the said Order 5 Rule 1. The applicant then referred the court to Nneji v. Chukwu [1988] 3 NWLR (Pt. 8l) 184 at 207 and Ekpuk v. Okon [2002] 5 NWLR (Pt. 760) 445 at 472. The applicant then urged the court to depart from its Rules in the interest of justice. That in any event, the respondents have waived their right to complain by filing a counter-affidavit of September, 2007. That the Government of Anambra State case cited by the respondents is not apposite for present purposes, referred the court to Shell Pet. Dev. v. Nwawka [2001] 10 NWLR (Pt. 720) 64 at 74 Ratio 16. On the issue of juristic personality, the applicant submitted that Alhaji Bashir Apapa is a natural person capable of suing and being sued. That Alhaji N.0 Arowolo and Comrade Bayo Ajayi are also natural persons sued for themselves and on behalf of all employees and trade unions of the Public Service of Oyo State. The applicant continued that listing the unions as stated in its processes does not remove their juristic personality and so does not take away the jurisdiction of this court particularly with reference to Exhibit B, C, E and G attached to the originating process. In effect, that the applicant is suing natural persons as representatives of employees of the Oyo State Public Service. In any event, that by section 24(1) of the Trade Unions Act (TUA) Cap. 437 LFN 1990, a union must be recognized by the employer once it is registered under the TUA. The applicant continued by urging the court not to depart from its position which allows branches/chapters of unions to SUC and be sued as the circumstances permit. In the alternative, the applicant submitted that even if the name of Alhaji Bashir Apapa were struck out, the case can still continue on the basis of the other parties on record. The applicant then submitted that it has no objection to the court striking out all offending words in the originating processes such as the references to Alhaji Bashir Apapa as a Governorship Candidate and general political references in the originating processes. Referring the court to section 14 of the NIC Act 2006, the applicant concluded by urging the court to proceed and give any directive that would enable the matter to be justly resolved. In replying on points of law, the respondents submitted that it is not the law that lack of knowledge of the law or procedure on the part of counsel would excuse non compliance with the Rules of court or statutes, urging the court to, therefore, discountenance the submission of the learned Attorney-General to the effect that they just got to know of the existence of the Rules of this court. The respondents then continued that what the applicant had done by using originating summons in initiating this proceeding is not a modification of Form I of the NIC Rules, but rather a radical departure from Form 1. That this is because while under the old writ it is possible to convert a writ of summons to an originating summons or vice versa, it is impossible to do so now under the new NIC Rules 2007, referring the court to Order 3 Rule 4 which the applicant did not comply with. To the respondents, Order 5 Rule 3 of the NIC Rules is not applicable without a formal motion praying the court to give such a direction as it is the practice of superior courts of record except where the Rules specifically use the words ‘suo motu’, referring the court to Order 29 Rule 3 as an example. That if the Rules had intended that this court could suo motu grant a departure from a method of initiating a proceeding, it would have specifically said so. The respondents then urged the court to construe order 5 Rule 3 in a manner consistent with the superior court of record status in this court. The respondents then submitted that even it’ they were to concede that failure to comply with Order 3 is a mere irregularity; the court cannot continue to condone the irregularity in its record. That it is still within this court’s power to set aside an irregular step, referring the court to Order 5 Rule 2(1). The respondents submitted further that the workers of Oyo State have not in any way waived their right to complain. That the counter-affidavit filed by the respondents was in respect of’ the applicant’s motion on notice and not in respect of the originating summons, referring the court to Ekpuk v. Okoni, supra, which to the respondents availed their argument and not that of the applicant on this point. That by virtue of Order 14 Rule 1(3), filing of a counter-affidavit to an application for injunction cannot amount to taking a step in a proceeding as to defeat a challenge to the competence of an originating process. In conclusion, the respondents submitted that in view of the fact that there is no lacuna on the question of initiation of proceedings before this court, this court should not resort to section 12 of the NIC Act 2006. And regarding section 14 of the NIC Act cited by the applicant, the respondents referred the court to Kaduna Textile v. Mrs. Josephine Obi [1999] 10 NWLR (Pt. 621) l3 at 143 144. That on the authority of this case, this court should rather direct the applicant to do the right thing by filing the right processes. The respondents then urged the court to strike out the matter with substantial cost. After a careful consideration of all the processes filed and the arguments canvassed by the parties in this case, we hereby hold that this court has the jurisdiction to entertain and determine this matter presently before the court. The respondents argued that the originating summons filed by the applicants is grossly incompetent having not been initiated by due process of’ law in that the applicant commenced this action by way of originating summons instead of a complaint arid so violated Order 3 Rule I of the NIC Rules 2007. By this argument, the respondents have elevated procedural due process to the status of substantive law. The rule which holds that jurisdiction is defeated if a cause of action is not initiated by due process is essentially used within the context of substantive law, not procedural law. Where the law makers feel strongly about certain aspects of procedural law, the tendency is to elevate these aspects to the status of substantive law as where Part I of the TDA, which deals with the procedure for settling trade disputes, elevates that procedure to the status of substantive law. Where this is the case, failure to observe the laid procedure would be fatal to the competency of the case to be heard by the court. The respondents accordingly canvassed two strands of arguments in this regard. The first, and which was the main plank of their argument, was that the new NIC Rules 2007 were not followed by the applicant in initiating the present action. What the respondent wants us to believe is that procedural due process, in this context, is so weighty that. if not followed, it can make an otherwise good cause of action incompetent, in other words, the respondents want us to keep faith with Maitland’s celebrated remark, to wit: ‘The forms of action we have buried, but they still rule us from their graves’ (Forms of Action, at p. 296). The modern tendency, as argued by the applicant, and which we agree with, is not to be slavish to the forms of action. The infractions contained in the processes of the applicant are all curable; they are not so weighty as to require striking out this matter as argued by the respondents. In any event, the originating summons tiled by the applicant has attached the documents that the applicant seeks to rely on. This means that the respondents are not in any way put at a disadvantage as to the case they are expected to meet. The applicant’s originating processes do not in any way entrap the respondents in this suit. We consequently do not agree with the respondents on this score. The second strand of the respondents’ arguments as to due process relates to their contention that there is already before the IAP a matter similar to that before this court, for which this court wilt need to suspend the present action and await the decision of the IAP. In canvassing this point, the respondents then concluded that ‘it is almost impossible to exercise jurisdiction of this court in section 7(l)(c) [ the NIC Act 2006] in a case relating to wage dispute without violating all the existing sections of the TDA relating to mediation, conciliation and arbitration’. We agree with the respondents that it is not for the applicant to say that they have withdrawn from the IAP matter since the law does not give that discretion. The mediation, conciliation and arbitration processes enjoined by the TDA are compulsory and not discretionary. This aside, we have gone through the referral instrument of the Minister of Labour to the IAP (see Exhibit TBI attached to the counter-affidavit of the applicant). The only issue referred to the LAP relates to the ‘Demand by the Committee of Industrial Unions in the Public Service for 15% minimum wage’. As restrictive as this referral is, it does not compare with the more expansive issues (issues which squarely fall within the purview of section 7(1) of the NIC Act 2006) the applicant raised for the determination of this court. Two of these issues go beyond the arbitral powers of the IAP, namely, the legality or otherwise of the strike in issue and the legality/validity of the collective agreement (Exhibit C attached to the originating summons of the applicant) entered into by the parties. It will, therefore, be foolhardy for this court to decline jurisdiction in this matter as canvassed by the respondents when the issues at hand, dealing with substantive questions of law and rights, conic within the jurisdiction of this court as provided for under section 7(1) of the NIC Act 2006 and so arc well beyond the arbitral powers of the IAP. The respondents also canvassed that the parties sued by the applicant are hot juristic personalities. For instance, that the respondent is not a juristic personality given that it is not registered. We have over the years recognized the right of branch unions to sue and be sued. Only recently, we held in Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria, unreported Suit No. NIC/8/2004 decided on May 8, 2007 as follows: ‘Since inception, this court has recognized the right of branch unit unions to access this court in order to have their peculiar grievances redressed without the necessity of the parent unions dragged to court’. The respondents’ argument that the 2nd respondent cannot sue or be sued is, therefore, not tenable. The same is also true of the other respondents. The respondents’ argument in their regard is making a mole out of an anthill. The applicant had earlier moved the court that Alhaji N. 0. Arowolo and Comrade Bayo Ajayi be made the 3rd and 4th respondents. The respondents did not object and the prayer was granted by this court. These two persons are natural persons and have the right to sue and be sued in their names. By Order 4 Rule 2 of the NIC Rules, where a defendant is sued in a representative capacity, the originating process shall state that capacity. This the applicant has done. This explains why we took the liberty to reflect all of this in the heading of this suit in this ruling. As for the 1st respondent, the applicant has already conceded that if reference to the political credentials of the l respondent would pose a problem, it is prepared to drop such a reference. We agree and are prepared to accede to the applicant’s prayer. For all the reasons given above, we hereby reiterate that this court has the jurisdiction to hear and determine the matter at hand. And in so holding, the applicant is hereby ordered to delete all references to the political antecedents of the 1st respondent. The matter at hand is a labour dispute and should be treated as such; it should not be politicized. Ruling is entered accordingly. Hon Justice B.B Kanyip Presiding Judge Hon Justice M.B Dadda Hon Justice M.A.B Atilola Judge Judge