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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: April 4, 2011 SUIT NO. NIC/LA/24/2009 BETWEEN 1. Hotel and Personal Service Senior Staff Association. 2. National Union of Hotels & Personal Services Workers - Claimants/Respondents AND The Tourist Company of Nigeria Plc - Defendant/Applicant REPRESENTATION James Nwabuche, for the claimants. A. Akpojarho, for the respondent and with him is O. Odjoh. RULING The claimants took up a complaint against the defendant on the 29th July 2009 seeking the following reliefs: 1. A declaration that the termination letters attached to the gratuities of the members of the claimants by the defendant is overreaching, vexatious, unnecessary, is in bad faith, illegal, null, void and of no effect. 2. A declaration that the claimants’ members are entitled to their redundancy fees as agreed and regulated by their conditions of service/handbook entered into by the claimants and the defendant. 3. An order of court setting aside the termination letters attached to the gratuities of the members of the claimants by the defendant same having been overreaching , vexatious, unnecessary, illegal, in bad faith, null, void and of no effect. 4. An order of court directing the defendant to pay through the claimants the redundancy fees of their members in their employment as agreed and regulated by item 55 of the 1999 agreement and item 16 of 8th December 2004 review for the 1st claimant and item 53 and item 2 of page 5 of the 1999 review for the 2nd claimant in their conditions of service handbook entered into by the claimants and the defendant and the said redundancy sum is as calculated and contained in item 3 of the list of documents to be relied upon at the trial. In reaction the defendant filed a motion on notice on the 11th March 2011 pursuant to Orders 8, 9 and 25 Rule 4 of the Rules of this court; section 7 of the National Industrial Court Act 2006, section 36 of the 1999 Constitution and under the inherent jurisdiction of this court praying for the following orders: 1. An order extending the time within which the defendant shall file its Memorandum of Appearance and Statement of Defence. 2. An order deeming the Memorandum of Appearance and Statement of Defence already filed and served in this suit as being properly filed and served. 3. An order dismissing this suit for being premature and incompetent for non-compliance with the rules and laws concerning the institution of suits before the National Industrial Court. The affidavit in support of the motion consists of 12 paragraphs and is sworn to by Hussein Mohammed, a litigation clerk. In reaction, the claimants/respondents filed an eight-paragraphed counter-affidavit sworn to on the 9th April, 2010 by Mr. Felix Unuabona, a legal practitioner, wherein he deposed to the fact that while the 1st and 2nd prayers on the motion on notice is not opposed by them, the third prayer is opposed. On the 13th April 2010, the first and second prayers were granted. Both parties filed written addresses in respect of the third prayer on the motion. The defendant/applicant’s written address is dated and filed 14th June 2010 while the claimants/respondents’ written address is dated and filed on the 14th September 2010. Also filed by the claimants/respondents is another 3-paragraphed counter-affidavit in opposition to the third prayer on the motion paper sworn to by Funke Osho, a litigation secretary, on the 14th September, 2010. The defendant/applicant raised two issues for determination as follows: 1. Whether due process has been followed in presenting this matter before the NIC. 2. Whether the court may exercise jurisdiction over a matter where it has not been properly brought before it. The defendant/applicant’s counsel began by stating that this matter was not referred to this court by the Hon. Minister of Labour. He submitted that it is the originating processes of the claimant that determines whether or not the court has jurisdiction to hear a matter, citing Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria & ors [1987] 1 NWLR (Pt. 49) 284 at 296 paras G – H and Oloruntoba Oju & ors v. Dopemu & ors [2008] 7 NWLR (Pt. 1085) 1 at 23. He contended that the reliefs sought by the claimants/respondents in the complaint fall within the definition of trade disputes as provided in section 47(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 and section 54(1) of the National Industrial Court Act 2006. The defendant/applicant’s counsel submitted further that sections 4 to 9 of the Trade Disputes Act provide the procedure for resolving a trade dispute and that before a dispute can be brought before this court it must have gone through the stages of mediation, conciliation and the Industrial Arbitration Panel (IAP); whereupon if there is an objection to the IAP’s award, the jurisdiction of this court may be invoked. Counsel to the defendant/applicant further argued that this suit is not one for interpretation wherein this court may exercise original jurisdiction but one which claims an infraction of the conditions of service of the claimants’ members and claims for redundancy benefits without a trade dispute being declared by the claimants. Arguing further, counsel submitted that the provisions of sections 4 – 9 of the Trade Disputes Act are mandatory and only allow the exceptions provided for in sections 15, 16, and 17 of the TDA. That this court is strictly an appellate court exercising original jurisdiction only as provided in sections 15, 16 and 17 of the TDA and as such may not exercise original jurisdiction in this suit. He urged the court to hold that this action is premature not having been brought in accordance with sections 4, 6, 7, 8, 9 of the TDA. On issue 2, the defendant/applicant’s counsel submitted that the provision of section 7(3) of the NIC Act 2006 has not given the court original jurisdiction in respect of industrial disputes. He referred to NUMW v. Regal Mineral Industries [2007] 7 NLLR (Pt. 18) 270, HAPSSA v. IHPLC & 6 ors unreported Suit No. NIC/39/2006 delivered on 2nd July 2009, AUPCTRE v. FCDA & ors unreported suit No. NIC/17/2006 delivered on 23rd May 2007 and Mix & Bake Flour Mill Ind. Ltd v. NUFBTE [2004] 1 NLLR (Pt. 2) 247. Counsel then urged the court to decline jurisdiction on the ground that this suit is premature having not been brought in accordance with the clear procedure stipulated in the TDA and strike it out with substantial costs. In response, the claimants/respondents raised one issue for determination as follows: Whether this court has jurisdiction to entertain this matter. The claimants/respondents’ counsel submitted that it is the originating processes that determines the jurisdiction of the court and that a referral from the Hon. Minister of Labour is not required to enable this court to assume jurisdiction in this suit. He referred to section 54(1) of the NIC Act 2006 for the definition of a trade dispute and section 7(1)(c)(i) and (iii) and submitted that the combined reading of the two provisions shows clearly that whether it is a trade dispute or not, once it involves the interpretation of any agreement it is this court that has exclusive jurisdiction to interpret. He referred to the case of HAPSSA v. Tourist Company of Nigeria Plc & anor unreported Suit No. NIC/18/2007 delivered on the 5th February 2008 where this court held that it has jurisdiction to entertain any suit that deals with the interpretation of a provision of the conditions of service of the claimants. The claimants’ counsel stated that it is still the interpretation of a provision of the same conditions of service that is sought to be interpreted in this suit which is between the same parties, with the same counsel appearing. That the order being sought in this application is an abuse of the process of court which is designed to cause delay in the determination of this suit. The claimants/respondents’ counsel argued that the reliefs sought in paragraphs 2 and 4 are seeking interpretation of the provisions of conditions of service in a collective agreement while reliefs 1 and 3 are hinged on the communiqué dated 30th July 2008 seeking the court’s interpretation as to whether there is the need for the kind of letters of termination given to the claimants/respondents’ members having previously agreed on the terms of their disengagement from service with the defendant/respondent. That reliefs 2 and 4 are the principal reliefs while reliefs 1 and 3 are ancillary. The claimants/respondents counsel referred to section 47 of the Trade Disputes Act for the definition of a trade dispute, which is ‘any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person’ and argued that as the claimants’ members’ employment with the defendant/applicant has been terminated, they are no longer workers of the defendant/applicant; therefore section 47 of the Trade Dispute Act does not apply as this is a post employment matter for interpretation which comes within section 7(1)(a)(i) and (iii) of the NIC Act 2006. He further submitted that the Industrial Arbitration Panel cannot make declarations, orders or interpretation of agreements. That it is only this court that has been given the jurisdiction to do so, citing the Western Steel Workers Ltd case, supra. He finally urged the court to dismiss the motion with substantial costs. The defendant/applicant did not reply on points of law. After a careful consideration of the submissions of both parties, the issue to be resolved is whether or not this court has original jurisdiction to hear and determine this matter. The defendant/applicant argues that this is a trade dispute which this court does not have original jurisdiction to hear and so the processes of Part I of the Trade Disputes Act Cap. T8 LFN 2004 must be exhausted before this court can assume jurisdiction. The claimants/respondents’ response is that this is not a trade dispute which comes within the definition of section 47 of the TDA as the claimants’ members are no longer in the employment of the defendant/applicant; and only seek interpretation of a collective agreement as to whether or not the claimants’ members are entitled to redundancy benefits. Both parties agree that it is the originating processes of the claimant that determines whether a court has jurisdiction to hear and determine a matter. See Western Steel Works Ltd v. Iron and Steel Workers Union of Nigeria (supra) and Oloruntoba-Oju & ors v. Dopamu & ors [2008] 7 NWLR (Pt. 1085) 1 at 23. A look at the originating processes filed by the claimants shows that the issue before the court is that the defendant/applicant terminated the appointments of the claimants’ members when it closed down its business at the Federal Palace Hotel and locked them out pursuant to its letter of 23rd June 2008 on the 28th July 2008. The claimants allege that none of their members has attained 60 years of age, neither did any of them tender any resignation letter or retirement letter and that the defendant/applicant paid them their gratuity but nothing in respect of redundancy. It is the unpaid redundancy sum that the claimants are seeking for in claims 2 and 4 of the complaint, which they refer to as the main reliefs and claims 1 and 3 as the ancillary reliefs. They claim that they are entitled to redundancy payments as contained in the collective agreements and conditions of service/handbook entered into by the parties. By this act, the claimants are in the main asking this court to apply, not really to interpret, the collective agreements and conditions of service/handbook in issue. This court has held that the interpretation jurisdiction of the court cannot be used to sidetrack the processes of Part I of the TDA. See Hotel and Personal Services Senior Staff Association v. Tourist Company of Nigeria Plc unreported Suit No. NIC/14/2002 decided on October 27, 2004 and National Union of Hotel and Personal Services Workers v. Palisco Nigeria Limited and anor unreported Suit No. NIC/15/2000 decided on April 27, 2006. Moreover, the relevant provision of the TDA, which is section 15, talks of the interpretation of a term or provision of the collective agreement in issue. The claimants have not complied with this requirement of particularizing the exact provisions that they want interpreted. And given the interposition of the Hotel and Personal Service Senior Staff Association and National Union of Hotels & Personal Services Workers, the claimants in this matter, the dispute in issue is certainly a collective dispute which qualifies as a trade dispute under both the TDA and the NIC Act. See generally Chibuzor Nanwu & ors v. Willbros (Nig.) Ltd & ors unreported Suit No. NIC/16/2006 delivered on March 11 2008 and Anthony A. Oyekanmi & 5 ors v. NITEL & anor unreported Suit No. NIC/7/2008 delivered on July 15, 2008. We are of the view, therefore, that these are issues which fall squarely within the definition of trade dispute for which this court, given section 7(3) of the NIC Act, does not have original jurisdiction to entertain. It is therefore necessary to reproduce the provisions of sections 7(3) and 54 of the NIC Act as follows: 7 (3) Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court. 54. “Trade dispute” means any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with – a. the employment or non-employment of any person, b. terms of employment and physical conditions of work of any person, c. the conclusion of variation of a collective agreement, and d. an alleged dispute; From a combined reading of the two provisions, we hold that the claims of the claimants/respondents fall squarely within the definition of a trade dispute. The claimants/respondents have not brought before this court an action for interpretation of a written agreement or collective agreement. The originating processes reveal a substantive trade dispute. This being the case, the claimants/respondents ought not to have approached this court as a court of first instance without first going through the processes of mediation, conciliation and arbitration as provided in sections 4, 5, 6, 7, 8, 9 of the TDA which are sanctioned by section 7(3) of the NIC Act 2006. For all the reasons given above, we decline jurisdiction to entertain this matter at this stage because it is prematurely before this court. This preliminary objection couched as prayer 3 in the defendant/applicant’s motion on notice is consequently upheld. The case of the claimants is accordingly struck out. We make no order as to costs. Ruling is entered accordingly. ………………………………. Hon. Justice B. B. Kanyip Presiding Judge ……………………………………... ..……………………..…………… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge