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NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo - President Hon. Justice V.N. Okobi - Judge Hon. Justice M.B. Dadda Judge DATE: JANUARY 23, 2008 SUIT NO. NIC/9/2003 BETWEEN Management of Tuyil Nigeria Limited - Appellant AND National Union of Chemical, Footwear, Rubber, Leather and Non-Metallic Product Employee - Respondent REPRESENTATION Mr. J.O Olatoke, for the appellants and with him Mr. Kayode Olatoke Mr. S.T. Abubakar Mr. Shino Adedakpo Mr. D.A. Ariyoosu Mr. Bamidele Aturu, for the Respondents with him Mr. B.O. Uwagboi Mr. Wole Ajewole Mr. Peter Oshun Mr. Chike M. Nwolisa JUDGMENT This matter was referred to this court pursuant to section 13 (1) of the Trade Disputes Act, Cap. 432, Laws of the Federation of Nigeria 1990 by the Honourable Minister of Labour and Productivity vide a letter dated 26th November, 2003 Ref. No. ML.HE/813/CON.I/40 and a referral instrument dated 4th April. 2003. By this letter and referral instrument, this court is asked to: To inquire into the trade dispute existing between National Union Of Chemical, Footwear, Rubber, Leather and Non-Metallic Products Employees and Mangement of Tuyil Nigeria Limited over the following points: (i) Disallowing the union from organizing its members in that company (ii) Threatening any worker that shows interest in his or her union The matter had earlier been entertained by the Industrial Arbitration Panel where efforts to promote settlement failed. The appellant objected to the panel award, hence the present referral of the matter to this court. The grounds of the objection by the appellant are as follows: Management of Tuyil Nig. Ltd only appeared before the IAP and it was not aware when the panel was constituted as an Arbitration Tribunal which considered the facts and circumstances surrounding the alleged dispute and thereafter made awards. (2) The issues raised by Tuyil Nig. Ltd before the IAP were never given an iota of consideration namely a whether or not a trade dispute exists between the two parties before the IAP having regard to the meaning of Trade Dispute under section 52, of Trade Unions Act, Cap . 437, LFN 1990 and Trade Unions (Amendment) Decree No.4 of 1996 b whether either party can compel any of the employees of Tuyil Nig. Ltd to join or belong to any Trade Union under the 1999 constitution of the Federal Republic of Nigeria and the Labour Act, Cap. 198 Laws of the Federation of Nigeria 1990 c whether or not the National Union of Chemical footwear, Rubber and Leather Product Employees is competent to declare a trade dispute against Tuyil Pharmaceuticals Nig. Ltd d whether or not the bonafide membership of Tuyil Nig. Ltd employees of the NUCFRLPE is not a condition precedent to the recognition and inauguration of a branch of NUCFRLPE in Tuyil Nig. Ltd business premises (3) The Industrial Arbitration Panel did not allow any of the parties to lead evidence before her and none led evidence The appellant is seeking for the following reliefs: 1. AN ORDER allowing its appeal in its entirety 2. AN AWARD/ORDER setting aside awards and findings of the lower IAP 3. AN ORDER/AWARD that the lower IAP lacks prerequisite competence and jurisdiction to entertain this matter 4. AN AWARD/ORDER that there is no trade dispute between the parties 5. AN AWARD/ORDER that the employees of the appellant cannot be compelled to join or belong to the union of the respondent 6. AN AWARD/ORDER that since the employees/workers of the appellant are not employees/workers/members of the respondent, the respondent is not entitled to recognition by the appellant 7. The findings and/or award of the lower IAP was reached per incuriam 8. Appellant's workers are not automatic members of the Respondent's Union because if they are automatic members there would not have been any need for the Respondent to request for their being organized into her union. 9. Each court or law has its own rules and the Respondent has mistaken the rules and law regulating the proceedings of this Court for that of the Court of Appeal and this made the respondent's argument and /or submissions a gross misconception. 10. There is no provision in the rules of this court that the Appellant must limit itself to the number of grounds of appeal in the formulation of issues for determination as tile terms of reference are as framed or formulated by the Honourable Minister of Labour and Productivity, hence the issue of grounds of appeal does not even arise at all. 11. Since the dispute between the parties herein is not a trade dispute the Industrial Arbitration Panel ought not to have entertained it. 12. The decision of Adebara J. of the Kwara State High Court is a decision of a court of competent jurisdiction as the State High Court has jurisdiction to hear and determine matters relating to trade disputes even though Adebara J. did not determine matters relating to trade dispute. Both parties joined issues by exchanging their respective memoranda, both the appellant and respondent also filed written addresses and rejoinders and by agreement filed final addresses, which they all adopted after withdrawing their earlier addresses of 26/01/07 and 13/02/07 under Order 20, Rules 2-4 of National Industrial Court, Rules 2007. The issue in contention is that the representatives of the respondent made an unexpected visit to the premises of the company (the appellant) to compel its workers to join or belong to the respondent union. The appellant duly considered the request, proposal and entreaties but insisted that clue process and procedures must be followed before the union can be recognized by it as it has no power to compel any of its employees to join or belong to any trade union CIS there is expressly outlawed. The respondent contended that by virtue of the provision of section 24(1) of the Trade Unions Act Cap 437 LFN 1990 which provides, "Subject to this Section", where there is a trade union of which persons in the employment of an employer are members, that trade union shall without further assurance, on registration in accordance with the provisions of this act be entitled to recognition by the employer, the appellant is under legal obligation to recognize and inaugurate a branch of its union on the appellants' business premises. The appellant on the other hand contended that the legal duty to recognize the respondent could only arise when respondent shows that persons in the appellant's employment are members of the respondent union. The appellant in its address argued that there is no trade dispute between the parties and as such the IAP lacked the competence and jurisdiction to have entertained this matter. It cited section 47 of the Trade Dispute Act Cap 432 Laws of the Federation of Nigeria 1990 as amended by Decree 47 of 1992 to define the Trade Disputes and the cases of NURTW VS Ogbodo 1998 2 NWLR (PT.537), 189 @ 197 and BPE Vi…………………….. 13 N WLR (PT837) 382 @ 403 to show that there was no trade dispute between the appellant and the respondents and appealed to the court not to yield to the suggestions and that any dispute involving a trade union necessarily suggests the existence of a trade dispute. It went further to say that a dispute between a union and an employer as in this case but which is not connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person is not a trade dispute, since it does not deal with hours of work, overtime, wages, bonuses, canteen and welfare facilities before it can be regarded as a Trade Dispute. The appellant quoted the judgment of High Court of Justice of Kwara State delivered on 26th day of June 2003 between the same parties in suit No. KWS 33/2002 where the learned judge in his decision said" it is therefore my view that there is no trade dispute between the plaintiff and the defendant and that the defendant is for that reason incompetent to declare one against the plaintiff," The appellant then urged the court to hold that, there is no trade dispute between the parties. It went further to submit that by virtue of section 272 of the 1999 Constitution of the Federal Republic of Nigeria, jurisdiction is conferred on the High Court, in this case Kwara High Court, to hear and determine any civil cases in which the existence or extent of a legal right, power or duty, liability etc subject to section 251 of the 1999 Constitution of Federal Republic of Nigeria and resolving this issue against the appellant herein will amount to sitting on appeal over the decision of a competent court which is not allowed by law, NDIC VS S.B.N. PLC 2003 I NWLR (PT 301) 311 @ 364 Para B where the Court of Appeal held that a court has no power or jurisdiction to sit on any matter that has been decided by a court of coordinate jurisdiction, to do so would amount to sitting on appeal on such a case, a procedure which the law does not permit. The appellant then submitted that the said judgment serves as a binding authority and urged the court to be bound by and follow it. The appellant then contented and maintained therefore that in this case, the issue of Trade Dispute does not exist and quoted authorities profusely to make that point. The appellant went on to refer the court to section 24 of Trade Unions Act Cap. 437 LFN 1990 which provides that subject to this section where there is a Trade Union of which persons in the employment of an employer are members, that trade union shall, without further assurance, on registration in accordance with the provisions of the Act, be entitled to recognition by the employer. To the appellant, the above provision was heavily relied upon by the Respondent, but since the staff members of the appellant are not "Persons in the employment" of the Respondent and since there is no scintilla of evidence showing that any of the Appellant staff members are members of the Respondent union, the Respondent is not entitled to recognition by the Appellant. He further referred the court to the definition of a member of a trade union as a statutorily defined. By virtue of section 9 of the Trade Unions (Amendment) Decree No.4 of 1996 "Member of a trade union" means a card carrying member of a union who contributes money to the union as required, under section 15 of this Act" From the above, the appellant submitted that it has not been shown that any of the Appellant's staff members is a card carrying member of the respondent nor contributes money to the Respondent. That none of the appellant's staff is a member of the respondent in order for the appellant to accord recognition to the Respondent. On the second issue, the appellant submitted that the Respondent has no Constitutional right to compel the Appellant Employees to join or belong to it as employees of the appellant have the inalienable fundamental and Constitutional right to freedom of association by virtue of section 40 of the 1999 Constitution which provides as follows. "Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest." The appellant then submitted that the findings of the Industrial Arbitration Panel (IAP) that the appellant should grant recognition to the respondent and also allow the respondent to inaugurate a Branch Union in the company of the appellant in view of the provisions of section 5(7) and 24(1) of the Trade Unions Act as amended and the provisions of section 315 of 1999 Constitution of Federal Republic of Nigeria which confers validity on existing law is therefore erroneous and has no legal backing. The appellant also noted that the element of voluntarism still prevails in workers membership of any trade union as section 5 (3) of the Labour Act Cap. 198 Laws of the Federation of Nigeria 1990 grants to the workers the right to renounce membership of any union. Section 9(6) of tile Labour Act 1990 states that no contract shall make it a condition of employment that a worker shall or shall not join a trade union or shall not relinquish membership o la trade union. (b) Cause the dismissal of or otherwise prejudice a worker by reason of trade union membership or because of trade union activities outside working hours or with the consent of the employer within working hours. The appellant then submitted arguments based on Section 5(4) of the Labour Act 1990 to re-echo the fundamental freedom of the Nigeria workers in matters concerning trade unionism. Based on section 21 of the Labour Act 1990 the appellant urged the court to observe and enforce by holding that neither the Respondent nor the Appellant can compel the employees of the Appellant to join or belong to the Respondent Union. On issue three, the appellant submitted that the preserved existing laws cannot override the express provisions or the Constitution which has the existing laws are valid subject to the express provision of tile Constitution, referring to section 315 of the 1999 Constitution of the Federal Republic of Nigeria. On the status of Decree and other existing laws vis-a-vis the constitution, the appellant referred to the Court of Appeal decision in BPE VS N.U.E.E. (supra) @ 407 Para F-G which entreated that "If any other Law is inconsistent with the provision of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void". The union is registered in accordance with the provisions of the Trade Union Act 1990 as amended by the Trade Unions (Amendment) Decree 1 of 1999. However, the Respondent having failed, refused and neglected that any of the employees belonged to her union is ipso fact disentitled to the second party as it is in elementary principle of law that where the provisions of the statute is clear and unambiguous, effect should be given to the words of that statute in its ordinary meaning. He cites Oladejo VS Adeyemi (2000) 3 NWCR (PT 647) 2S C.A. National Orthopedic Hospital Board VS Godfrey Ajogu 2000 12 NWLR (PT. (82) 626 C.A. Okwueze VS Ejiofor (2000) IS NWLR (PT 690) 389 and concluded that the appellant is not under a legal obligation to recognize the Respondent and inaugurate a branch of the Respondent's Union in the Appellant's business premises when none of the Appellant employees is a member of the Respondent Union. In his conclusion, the appellant's counsel submitted that the High Court of Kwara State has resolved the issue raised as it relates to its constitutional provisions particularly the effect of Sections 40 and 315 of the Constitution on the Decrees and or Acts that normal and proper procedure is for this court to refer this case/ matter to the High Court under section 295 of the 1999 Constitution of the Federal Republic of Nigeria and to allow this appeal in its entirety. Counsel for the Respondent National Union of Chemical, Footwear, Rubber, Leather and Non Metallic Products, Employee in his written address stated that the Appellant dissatisfied with the award of the Industrial Arbitration Panel which ordered that the appellant should forthwith grant recognition to the National Union of Chemical, Footwear, Rubber, Leather and Non Metallic Products Employee and also allow the union to inaugurate a branch union in the appellant company in view of the provision of sections 5(7) and 24( I) of the Trade Unions Act [990 and the Trade Unions (Amendment) Decree 1 of 1999, and the provision of section 315 of 1999 Constitution which confers validity on existing laws in force before the commencement of the 1999 constitution until such laws are modified by the appropriate authority and hence the appellant lodged an appeal before this court against the award. The respondent's in its submission stated the following facts as giving rise to the dispute, as the respondent being a registered Industrial Union in Nigeria was in March 2000, desirous of formalizing the union- management relationship with the appellant due to the fact that the stall of the appellant by virtue of the Trade Unions Act, and Section 5 (7) as well us section 24 were eligible members of the Respondent Union. The respondent's attempts to formalize the union - management relationship were frustrated by the company who refused the employees to engage in Trade Union activities and further refused to remit the check off/dues in compliance with the existing laws. When all attempts to reach an agreement failed a dispute was declared and requested the intervention of the Federal Ministry of Labour and Productivity. The Ministry's overtures for a settlement were rebuffed by Tuyil Nigeria Limited. The dispute was then referred to the Industrial Arbitration Panel before which both parties filed their respective memoranda at first instance. The Industrial Arbitration Panel (IAP) after considering memoranda on both sides had no hesitation in making award in favour of the Respondent union ordering the management to grant forthwith recognition to the union and also allow it to inaugurate a Branch Union in the company who in the interest of good Labour Management relations ensure that no member of the company is threatened or dismissed by virtue of his membership of a Trade Union. The Panel took cognizance of the relevant laws governing membership of Trade Unions namely; I) Part B of the Third Schedule to the Trade Unions (Amendment) Decree No.1 1999 which makes workers in pharmaceutical industries including employees of tile Appellant automatic members of the union. ii) Section 24 (I) of Trade Union Act 1090 which makes the recognition of registered trade unions by employers of Labour mandatory. iii) Section 5(7) of the Tracie Unions Acts 1990 which makes it incumbent upon the Registrar of Tracie Union to register without further requirement, any trade union including the respondent specified in parts A & B of the Third Schedule to the Act. iv) Section 315 of the Constitution of the Federal Republic of Nigeria 1999 which recognizes the validity of the existing laws in force immediately before the commencement of the 1999 constitution unless such laws were abrogated, amended, or modified by an appropriate authority. v) Sect ion 5 (3) or the Labour Act which preserves the voluntarism of trade union membership by grunting to the worker the right to renounce his / her membership of any trade union and to contract out of the system in writing, consequent upon which no check off dues will be deducted from his/her wages. Based on the combined provisions of S.5 (7) and 24 (1) of the Trade Unions Act and the jurisdictional scope granted the respondent under the Trade Unions (Amendment) Act 1999 it is sufficient, adequate and convincing proof that the workers of the appellant are eligible union members of the respondent union. The respondent urged the court to strike out all the issues raised by the appellant as none of them arose from the point of reference and also for gross incompetence. The issues for determination in this appeal according to the respondent are; i) Whether the appellant was right in preventing the respondent from organizing its workers and establishing a branch of the union in the appellant company. ii) Whether the decision of the Industrial Arbitration Panel to the effect that none of the workers of the appellant company should be threatened or dismissed is perverse or occasions a miscarriage of justice. The respondent then submitted on issue one that the definition or Trade Dispute in section 47 of TDA does not exclude workers unions that the union has a legal right by virtue of tile Trade Unions Act to unionize workers and where the employers are denying them this statutory right, it stands to reason that such would constitute a trade dispute within the intendment of the Act. To the respondent, there is undisputed evidence that the appellant did not allow the respondent organize a branch of the union in its establishment because the respondent ought to show first evidence of having members in the company before being recognised by it and requested the court to determine whether the refusal is right in law. A combined reading of sections 24 &52 of the Trade Unions Act as amended shows that workers in the appellant are automatically members of the respondent unless any of the workers exercise his or her right to renounce membership of the respondent. To the respondent before the amendment the onus was on the union to show that workers in the company were its members before it could demand recognition vide section 24 of the Trade Unions Act; but now, the case of Osawe Vs Registrar of Trade Union (1985) I NWCR (PTA) 755 the Supreme Court held that certain sections of the Act that prohibit having more than one union in the industry are not unconstitutional as the aim of the law was to prevent proliferation or unions. He went further to cite Ekong Vs Oside (2004). All FWLR (Pt. 2160)559 where the Court of Appeal upheld the constitutionality or the Trade Dispute Act on the basis of its lofty aim, The contention of the appellant that it is not under a legal obligation to recognize the respondent and inaugurate a branch of the respondent's union in the appellant premises when none of the appellants employees is a member of the respondents union is misconceived. The respondent, on the issue of whether the decision of the panel to the effect that none of the workers or the appellant company should be threatened or dismissed is perverse or occasioned miscarriage of justice, proffered that the appellant did not say anything in its brief on this point. The respondent concluded by treating the appellant's copious references made to the decision of Adebara J. as unworthy of response since the references go to no issue, more so as this court cannot be bound by the decision of High Court of Kwara State when the Court of Appeal has held in Ekong Vs Oside (supra) that a state High Court has no jurisdiction to entertain Tracie disputes or inter or intra union disputes, To suggest that this court can be bound by the decision or a court of coordinate jurisdiction without jurisdiction is odious. The respondents urged the court to dismiss with substantial cost the appeal as unmerited and affirm the decision of the Industrial Arbitration Panel (IAP). The appellant submitted a reply on points of law to the respondent's final address dated 15th day of September, 2007. Essentially, the appellant readopted its earlier arguments and submissions but submitted further that no law has the effect of deeming any particular worker as a bonafide member of the respondent and if there is any law or enactment or statue to that effect, then such law or enactment shall be null and void and of no whatever effect based on section I (I) & (3) and 40 of the 1999 Constitution of the federal Republic of Nigeria. From all of the submissions of counsel in this matter, the critical issue for determination centers on the question or recognition and the existence or non-existence of a trade dispute between the parties, In two previous decisions of this court, namely, Corporate Affairs Commission Vs AUPCTRE [2004] INLLR (pt.1) 1 and Mix and Bake Flour Mill Industries Ltd Vs NUFBTE [2004] INLLR (pt.2) 247, this court laid down the guiding principles regarding this matter. These principles may be summarized as follows: 1 The question of recognition of a trade union or deduction of check-off dues is one that is connected with the employment or non employment or terms of employment or conditions of work or service, so too is the question as to what deductions to make from a worker's wages or salaries which is statutorily provided for under section 5 of the Labour Act. So when a trade union complains that an employer is refusing to deduct check-off dues in respect of employees or workers who are eligible to be its members, that complaint is a trade dispute and can properly be heard under the dispute resolution processes of the Trade Dispute Act. 2 Recognition of a trade union by an employer is compulsory and automatic by the combined effect or sections 5 (7) and 24 (I) or the Trade Unions Act 1990 as amended by Decree No.1 of 1999 and by Section 5 (3) (a) and (b) of the Labour Act 1990. 3 Regarding the worker’s unions, the combined effect of sections 24(1) and (2) and 16A of the Trade Unions Act is that the law intends and stipulates for compulsory recognition and deduction of check-off dues in respect of workers who are eligible to be members of a union. 4 By section 16A of the Trade Union Act, eligibility of being a member of a trade union is the yardstick, test or standard for determining deductibility of check-off dues for which the employer has no choice in the matter. The duty to deduct check-off dues is mandatory and no employer is permitted to choose whether or not to defect. 5 The employer has a duty to grant a recognised union access to eligible members of the trade union in its employment 6 By the provisions of section 16A, 24 and 52 of the Trade Union Act, as amended, the industrial Arbitration Panel (IAP) and this court are the “appropriate court” o entertain any questions as to the validity of any action taken by any person or authority in pursuance of the Trade Unions Act and these include the question of recognition of a trade union and deductions of check-off dues by employers. 7 Once any of the trade unions listed in the third schedule to the Trade Union Act exhibits enough intention to be recognized by an employer by indicating its willingness to unionize workers who are eligible to be its members, an employer is obliged to accord recognition and not post obstacles in the way of such unionization. 8 Refusal of an employer to accord recognition to a trade union to unionize eligible members in its employment will ground a valid trade dispute even if the union is yet t form a branch on the employer’s premises 9 Compulsory recognition and automatic deduction of check-off dues are the norm in the current labour law regime in Nigeria, and the Supreme Court in Osawe v. Registrar of Trade Union [1985] 1 NWLR (Pt.4) 755; [2004] 1 NLLR (Pt.1) 32 had declared the system of restructured and highly compartmentalized Trade Unions as being constitutional. Incidentally, this case of Osawe has only recently been affirmed by the Supreme Court in The Registered Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union and ors suit No. SC.201.2005 delivered on January 11, 2008 From the totality of these principles, it is clear that there is a valid trade dispute between the parties, which was validly declared by the respondent union and for which the IAP made a valid award. We see no reason for whatsoever to disturb the IAP award. In the circumstances, this appeal fails and the award of the IAP is herby confirmed. Judgment is entered accordingly. Hon. Justice B.A. Adejumo President Hon. Justice V.N. Okobi Hon. Justice M.B. Dadda Judge Judge