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BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo President Hon. Justice V. N. Okobi Judge Hon. Justice M. B. Dadda Judge Date: November 27, 2007 Suit No. NIC/6/2006 BETWEEN The Amalgamated Union of’ Public Corporations, Civil Service and Recreational Employees (AUPCTRE) for itself and representing its individual members in the employment of (NEPZA) Applicant ……………………………………..…Applicant AND Nigeria Export Processing Zone Authority (NEPZA)…………………………. Respondent REPRESENTATION Mr Lagi Innocent Esq - For Applicants Mr. E. T. Atta Esq - For Respondent RULING The Applicant brought this action by originating summons dated 11th August, 2007, pursuant to S. 19(b) & (e) of’ the Trade Disputes Act 2006 for: — 1. A declaration that the Plaintiff has statutory rights to organize and unionize potential members in the employment of the Defendant 2. A declaration that existence of a union and organizing of workers b a trade union is not synonymous to organizing workers for a strike action. 3. A declaration that the defendant cannot prevent nor lawfully bar the plaintiff’s members or the plaintiff from carrying on peaceful union activities in the defendant’s premises. 4. A declaration that the purported transfer and intimidation of the members of the plaintiff’s union by the defendant is unconstitutional and a breach of’ the Plaintiffs members Constitutional rights guaranteed under chapter IV of the 1999 Constitution. 5. A declaration that the Defendant cannot be conferred jurisdiction to settle trade dispute to which it is a party or not. 6. An order directing the defendant to restore the members of the plaintiff’s union either posted out of their various locations or whose employments were terminated on the basis of their union activities. 7. An order of injunction restraining the Defendant by itself, servant, agents, privies or any person or body, acting through it or under its instructions from posting or punishing any member of the Plaintiff union or interfering with their lawful employment. The originating summons was filed in this Court on 14th August, 2006, and is supported by 10 paragraphed affidavit dated 14th August, 2006, Sworn to by Comrade Daniel Umaru, Deputy General Secretary of the Applicant’s Union, and, attached thereto are exhibits 1—11. The Applicants later filed in Court on 14th October, 2006 a motion on notice dated 5th October, 2006 praying to the Court for the following:— 1. An order of this Court granting the Applicant leave to amend its originating process, by substituting……NIC Act 2006 2. And such other orders as this Court may deem fit to make in circumstance. The motion is supported by an 8 paragraphed affidavit dated 5th October, 2006 sworn to by Pet Nwokoma, a Solicitor in the chambers of the Applicant’s Counsel and it was filed on 11th October 2006. The Respondent on its part filed on 3rd October, 2006 a notice of preliminary objection dated 23rd September, 2006 challenging the competence of the matter before the Court, on the following grounds — 1. The action of the plaintiff is brought pursuant to Sec. 19 (a) and (b) of the “TRADE DISPUTE ACT 2006” which is non—existent in the Nigerian Legal system. 2. The action is incompetent before this Court by virtue of the provision of the National Industrial Court Act 2006 and the Trade Dispute Act 2004 which provides for the reference of industrial dispute to the industrial Mediation and Arbitration Panels before it can be commenced before this Court. 3. The issue for determination and relief claimed by the Plaintiff do not relate to the interpretation or construction of a specific law or instrument which is the subject matter of the dispute as required for the commencement of an action under the originating sumrnons procedure. 4. The issues raised in the plaintiff’s originating summons and the Supporting affidavit relate to dispute and contestable issues of fact which can not be commenced under the originating summons procedure. The Respondent had earlier filed on 28th September, 2006 a motion on notice dated 18th September, 2006 pursuant to the inherent jurisdiction of the Court to grant the following:— 1. An order of this Court granting the defendant leave to enter its defence out of time. 2. An order deeming the memorandum of appearance and the counter affidavit herein attached and marked EXHIBIT A & B as duly filed and properly served. 3. And for further order(s) as this Court may deem fit to make in the circumstance. The motion is supported by an affidavit of II paragraphs dated 28th September, 2006 which was deposed to by Ezindu Onyinyechi Esq., a legal practitioner in the Respondent counsel chambers. Attached to the affidavit are exhibits A—B as well as exhibits 1—11. The Respondent/Applicant who challenged the jurisdiction of the Court to entertain the matter based its claim on four grounds as set out by its process. On the 1st ground of its objection, counsel to the Respondent contended that “the action of the plaintiff which is brought pursuant to sec. 19 (a) (b) of the Trade Disputes Act, 2006, is non—existent in Nigerian legal system”. In other words, “the Trade Disputes Act 2006” is a non— existing law in Nigeria. On the 2nd ground of their objection the counsel contended that “the action is in competent before the Court by virtue of the National Industrial Court Act 2006 and TDA 2004, which provides for reference of industrial dispute to the industrial mediation and arbitration panels before it can be commenced before this Court.” On this proposition, the counsel submitted that by virtue of sections 5, 7, & 16 TDA Cap. 432 LFN 1990, it is a condition that trade disputes be commenced from Industrial Arbitration Panel and that having not complied with this requirement by the Applicant/Respondent, the matter should not be entertained without following due process as contained in these sections of the law. The Court was referred to the case of APC Ltd. v. NIDC Nigeria Universal Bank PLC (2006) All FWLR (Part 335) at 24—28 D-H. The counsel then urged that the Court to see the action as incompetent and it be struck-out. The Respondent/Applicant did not argue grounds 3 and 4 and so is deemed to have abandoned them. The Counsel to the Applicant/Respondent on his part said that they filed a motion on notice dated 5th October, 2006. He submitted that the law is to the effect that the jurisdiction of a Court in any particular matter is determined on the process of the Applicant. He further submitted that the reliefs sought by the Applicant in this matter can only be granted by this Court pursuant to S. 7(l) NICA 2006. He contended that their submission is that the Industrial Arbitration Panel (IAP) does not have jurisdiction to pass declaratory judgment. That its jurisdiction is limited to making arbitral award. The Counsel then referred the Court to Part ‘1’ of TDA. He went further to say that S. 19(e) NICA 2006 has specifically empowered this Court to make orders of compliance with the provisions of any Act of the National Assembly dealing with any matter that the Court has the jurisdiction to hear, he referred the Court to its jurisdiction in Sec. 7 NICA 2006 and its powers under sec. 19(b) thereto. The Counsel then urged the Court to consider the fact that the issues of jurisdiction are issues of hard law. In conclusion, the Counsel submitted that there is nothing in their originating processes that sought fur an award before this Court for any order or remedy contained under the TDA. ‘That all the remedies sought by the Applicant are remedies exclusively vested on this Court under NICA 2006. He therefore urged the Court to dismiss the preliminary objection and assume jurisdiction and set the matter clown for hearing. Jurisdiction of a court is determined by the cause of action of a claimant or applicant. In the instant case the applicant’s cause of action discloses declaratory and injunctive reliefs. But their determination would necessarily involve the consideration of triable issues touching on recognition, the right to unionize employees, transfer of employees, etc. which issues are technical matters falling squarely within the definition of Trade Dispute under Sec. 47 (1) of the ‘TDA and S4(1) of the NIC Act. ‘This court in a line of cases have held these issues to qualify as trade dispute, which implies that their determination must be under the processes of part 1 of the TDA. See AUPCTRE v FCDA & Ors unreported suit No. NIC/17/2006 delivered on May 23, 2007; CAC v. AUPCTRE (2004)1 NLLR (pt.l) I and MR. X and BAKE FLOUR MILL INDUSTRIES LTD v. NUFBTE (2004) INLLR (p4. 2) 247. The processes of Part 1 of’ the TDA are saved under S. 7 (3) of the NIC Act 2006. This court cannot grant the injunctive and declaratory reliefs sought by the applicant without calling for evidence as to the issues involved. Since the issues qualify as Trade Disputes, we are of the firm belief that their resolution ought to go through the processes of Part I of the TDA. In consequence, we thereby, decline jurisdiction to entertain the matter as a court of first instance. Ruling is entered accordingly. Hon Justice B.A Adejumo President Hon Justice V. N Okobi Hon Justice M.B. Dadda Judge Judge