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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: APRIL 18, 2012 SUIT NO. NIC/LA/153/2011 BETWEEN 1. Comrade Okandeji Fidelis (Chairman, The Shell Branch of Nigerian Union of Claimant/Respondent Petroleum and Natural Gas Workers (NUPENG) AND 1. Comrade Igwe Achize (President, Nigeria Union of Petroleum and Natural Gas Workers, (NUPENG) 2. Elijah Okougbo Defendants/Applicants (General Secretary, Nigeria Union of Petroleum and Natural Gas Workers, (NUPENG) (For themselves and on behalf of the members of the National Executive Council of the Nigeria Union of Petroleum and Natural Gas Workers, (NUPENG) REPRESENTATION K. Ayetin for the claimant/respondent, with him Miss O.A. Adelanwa. M. E. Edah for the defendants/applicants. RULING The claimant filed a complaint against the defendants on the 14th November 2011 with the following endorsement and claiming the following reliefs: In contravention of the Constitution of Nigeria Union of Petroleum and Natural Gas Workers (NUPENG), the Constitution of the Federal Republic of Nigeria 1999 as amended and the Rules of Natural Justice the defendants in or about the month of October, 2011 issued and or caused to be issued to the claimant a letter Ref No. HO/SPDC/M/11/2011 dated 19th October, 2011 which reads inter alia: “At the plenary session of the National Executive Council (NEC) Meeting held at Owerri, Imo State on the 14th October, 2011, the report of the investigation committee was deliberated upon and the following decisions were agreed on. 1. That you are removed as the Branch Chairman of the Shell Branch of NUPENG and Zonal Vice Chairman of the Warri Zonal Council with immediate effect. 2. That you are hereby expelled from the Union with effect from the date of this letter. 3. The NEC in session directed that you hand over all the properties of the Branch in your possession to the Vice Chairman who has been appointed as Acting Chairman of the Branch till further notice.” Claimant was not given a fair hearing nor was the procedure provided in the constitution of NUPENG followed before he was purportedly removed as the Branch Chairman of the Shell Branch of NUPENG and Zonal Vice Chairman of the Warri Zonal Council and expelled from the Union as per the said letter. Wherefore claimant claims against defendants jointly and severally as follows: 1. A declaration that the purported removal of the claimant as the Branch Chairman of the Shell Branch of NUPENG and Zonal Vice Chairman of the Warri Zonal Council of NUPENG and his purported expulsion from the Union in contravention of the constitution of NUPENG, the Constitution of the Federal Republic of Nigeria as amended and the rules of Natural Justice is null and void and of no effect whatsoever. 2. A perpetual order of injunction restraining defendants and or their agents from giving effect to the said letter ref no. HO/SPDC/M/11/2011 dated 19th October, 2011, signed by the 2nd defendant. 3. An order setting aside the said letter ref no. HO/SPDC/M/11/2011 dated 19/10/11. 4. The sum of N100,000,000.00 (One Hundred Million Naira) being damages for the shock and embarrassment caused to the Claimant as a result of the said letter and the infringements of claimants rights. Accompanying the complaint is the statement of facts, the claimant’s statement on oath, documents to be relied on, verifying affidavit, the name of the witness to be called and a motion on notice for interim injunctive orders. In reaction, the defendants filed a notice of preliminary objection challenging the jurisdiction of the court on the 14th December 2011 and praying for the following relief: An order of this Honourable Court dismissing this action and the Motion Inter Partes for Interim Injunctions brought under it upon the grounds set out in the Schedule to this Notice of Motion. And for such further order or other orders as this Honourable Court may deem fit, proper and necessary to make in the circumstances. The grounds upon which the objection is brought are as follows: The honourable court lacks jurisdiction to entertain this action and the Motion Inter partes for Interim Injunctions brought under it in that- 1. The conditions precedent to the commencement of this action has not been satisfied. 2. The claimant lacks the requisite locus standi to commence and maintain this action. 3. The acts sought to be restrained by temporary injunctions are concluded acts. 4. This honourable court cannot proceed to hear the Motion Inter Partes without in so doing determine the substantive action. 5. Claimant suppressed material facts in his Motion Inter Partes and attached to his supporting affidavit a spent, redundant and otiose document, that is, the “Constitution of the National Union of Petroleum and Natural Gas Workers (NUPENG)” as against the valid and extant “Constitution of the Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) As Amended at the National Delegates Conference held in Abuja in 2009”. The preliminary objection is supported by a 25 paragraph affidavit sworn to by Otite Onohwohwo, Senior Assistant General Secretary of NUPENG. In reaction, the claimant/respondent did not file a counter affidavit but filed a written address in opposition on point of law on the 3rd February 2012. Counsel adopted their written addresses. Learned counsel to the defendants/applicants raised three issues for determination as follows: (a) Whether this honourable court has jurisdiction to entertain this matter in that same is not a trade dispute?. (b) Assuming but by no means conceding that this matter is a trade dispute, whether this honourable court has an original jurisdiction to entertain this matter in that the conditions precedent to the invocation of her jurisdiction has not been satisfied?. (c) Again, assuming but by no means conceding that this matter is a trade dispute and that this honourable court has an original jurisdiction to entertain same, whether this honourable court can grant the temporary reliefs sought vide the Motion on Notice in that the acts are already completed and that the said temporary reliefs are substantially if not exactly the same reliefs sought for in the substantive case?. He submitted that in the determination of the subject matter of a suit and the jurisdiction of the court to entertain same, it is the complaint and statement of facts that the court must have recourse to citing Federal Ministry of Commerce and Tourism v Chief Benedict Eze [2006] All FWLR (Pt 323) 1704 at 1723, Inegbedion v Selo-Ojemen [2004] All FWLR (Pt 221) 1445 at 1458. He submitted that the subject matter of this action is outside the jurisdiction of this court. It was his contention that the issues before the court do not revolve around a trade dispute or an industrial relations dispute. He referred to Section 48 of the Trade Disputes Act, CAP T8, LFN 2004 for the meaning of a Trade Dispute and the following cases Road Transport Employers Association of Nigeria v NURTW & ors [2005] All FWLR (Pt 254) 920 at 930, AG Oyo State v NLC Oyo State Chapter [2003] 8 NWLR (Pt 821) 1, National Union of Electricity Employees & Anor v BPE [2010] 7 NWLR (Pt 1194) 538. He submitted that this dispute does not involve a trade and is not connected with the employment or non employment or physical conditions of work of any person and urged the court to decline jurisdiction in that the dispute fails the test of a trade dispute. Learned counsel contended that assuming without conceding that this matter is a trade dispute, the original jurisdiction of the court cannot be invoked except under the special circumstances provided in Part 1 of the Trade Disputes Act. In support of this position, he urged the court to consider the provisions of Part 1 of the Trade Disputes Act, Sections 7 (1) & (3) and 53 (2) of the National Industrial Court Act 2006. He further contended that the provisions of the Trade Disputes Act can only be exercisable in both inter and intra-union disputes as an appellate or referral jurisdiction and not original jurisdiction. He submitted that the claimant who claims to be a member of the Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) failed to take benefit of the internal grievance remedial procedure of settling disputes and has not shown that he exhausted all the processes towards an amicable resolution. He submitted that the provisions of Part 1 of the Trade Disputes Act must be exhausted before the court can assume jurisdiction relying on PMAN & 10 ors v Lasode & 4 ors [1978 – 2006] DJNIC 530. He submitted that Section 7 of the NIC Act 2006 saves and incorporates the provisions of Part 1 of the Trade Disputes Act. He cited the following cases in support: Corporate Affairs Commission v Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees [2004] 1 NLLR (Part 1) 1, Mix and Bake Flour Mills Industries v National Union of Food, Beverages and Tobacco Employees [2004] 1 NLLR (Part 2) 247; and the yet to be reported cases of Suit No. NIC/6/2007: Peter Okafor & Ors v Anthony Ugozor & Ors delivered on March 11, 2008; Suit No. NIC/11/2007; Association of Senior Staff of Banks Insurance and Financial Institutions v Union Bank of Nigeria Plc & Ors delivered on January 24, 2008; Suit No. NIC/12/2007: Association of Senior Staff of Banks Insurance and Financial Institutions v United Bank for Africa Plc & Ors delivered on January 24, 2008; Suit No. NIC/36/2008: Comrade Udeagalanya Anthony & Ors v Comrade Francis Iloduba & Ors delivered on January 20, 2009; and Suit No. NIC/LA/20/2009: National Union of Petroleum and Natural Gas Workers v Oil and Industrial Services Limited delivered on April 21, 2010. He submitted that there is non compliance with the mandatory conditions precedent for setting the legal process in motion and the action is incompetent thereby making the court equally incompetent relying on Ajibola v Sogeke [2002] All FWLR (Pt 93) 1959 at 1987. It was counsels submission that in the circumstances, the claimant lacks locus standi and therefore the court is deprived of jurisdiction as there is no proper party before it citing Madukolu v Nkemdilim [1962] 2 SCNLR 341. He then urged the court to hold that the institution of this case by the claimant/respondent is misconceived and premature and dismiss same with costs. At this juncture, I must state that the submissions contained in paragraphs 3.3.1 to 3.3.6 of the defendants/applicants written address are submissions to be raised in respect of the motion for interim injunctive orders which is yet to be heard and is pending. The submissions are premature and are hereby discountenanced. Learned counsel to the claimant/respondent raised one issue for determination as follows: Whether the defendant is entitled to the grant of this application? He submitted that it is the claimant’s claim that determines the jurisdiction and not what the defendants label it to be. He cited Onuora v K.R.PC. Ltd [2005] 6 NWLR (Pt 921) 393 at 405. He referred to Section 7 (1) (c) (iv) of the National Industrial Court (NIC) Act 2006 and submitted that it confers the court with jurisdiction to hear and determine the claimants/respondent action in so far as it relates to the interpretation of the constitution of a trade union. He submitted that the claimants/respondent claim is an intra-union dispute which relates to the validity or otherwise of his removal from office as chairman of the SPDC branch of NUPENG in contravention of the constitution of NUPENG and that Section 7 (1) (c) (iv) of the NIC Act has conferred the court with jurisdiction to entertain this matter. He referred to National Union of Electricity Workers v BPE supra. NURTW v Ogbodo [1998] 2 NWLR (Pt 537) 189 and Umoren v Akpan [2008] 16 NWLR (Pt 1113) 231 for the meaning of a Trade Dispute. Learned counsel submitted that this is the only court with jurisdiction to entertain this matter citing Madu v N.U.P. [2001] 16 NWLR (Pt 739) 350. It was his submission that the condition precedent to the invocation of the courts jurisdiction are contained in Order 3 of the NIC Rules 2007 which the claimant/respondent has complied with and not Part 1 of the Trade Dispute Act. He submitted that the dispute not being a trade dispute but the interpretation of a trade union constitution, then Part 1 of the Trade Dispute Act is not applicable and as such the defendants/applicants arguments is misconceived. He submitted that Part 1 of the Trade Dispute Act can only be resorted to or exhausted where the matter is a trade dispute which is not the case here. It was his submission that the claimant/respondent has derived his authority to approach this court in its original jurisdiction pursuant to the provisions of Section 7 of the National Industrial Court Act 2006. He submitted that the defendants/respondents contention that a condition precedent has not been met and so the action should be dismissed is an attempt to divest the court of its jurisdiction which has been frowned upon by the courts. He referred to Stabilini Visinoni Ltd v FBIR [2009] 13 NWLR 200 at 225 – 226. (incomplete citation), Orhiunu v F.R.N. [2005] 1 NWLR (Pt 906) 39 at 48. On the issue of locus standi, he submitted that a litigant must show his personal interest will be affected or has been adversely affected by the action complained of citing Ladejobi v Oguntayo [2004] 18 NWLR (Pt 904) 149 SC. He referred to paragraphs 1, 2, 7 & 8 of the statement of facts, the complaint and submitted that the claimant has the requisite locus to institute and maintain this action before the court. Learned counsel to the claimant/respondent then urged the court to dismiss the preliminary objection with costs as it is lacking in merit. The arguments of the claimant/respondent contained in paragraphs 6.0, 7.0 and 8.0 of the address relate to the pending motion for interim injunction and will not be considered for the purposes of this ruling. Replying on point of law, the defendants/applicants counsel submitted that compliance with part 1 of the Trade Disputes Act is not a denial of access to this court. He submitted that the courts jurisdiction in this matter is not original and referred to Adelaja & 6 ors v Ogunyade & 60 ors (1978 – 2006) DJNIC 394, Senior Staff Association of Statutory Corporations and Government Owned Companies N.P.A Branch & Anor v Senior Staff Association of Statutory Corporations and Government Owned Companies & Anor (1978-2006) DJNIC 412. I have carefully considered the processes filed, submissions made and authorities referred to. The issue to be resolved is whether or not the jurisdiction of this court to entertain this matter is original. There is no dispute between the parties that this court has been given exclusive jurisdiction to hear and determine civil causes and matters relating to trade unions by section 254C (1) of the 1999 Constitution as amended and section 7 (1) (a) & (c) (iv) of the National Industrial Court Act 2006. The jurisdiction conferred on this court is subject based and it is therefore erroneous for counsel to the defendants/applicants to submit that the subject matter of this action is outside the jurisdiction of this court. In one breath, he submits that this action is not a trade dispute and in another, that it is a trade dispute for which the processes of mediation, conciliation and arbitration provided in Part 1 of the Trade Dispute Act (TDA) CAP T8 LFN 2004 must be exhausted before this court can assume jurisdiction. The defendants/applicants counsel is not consistent in his position. Section 48 of the Trade Dispute Act provides that “ trade dispute means 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.” A careful look at the complaint and statement of facts reveals that the claimant/respondent is complaining that without being given a fair hearing in breach of the rules of natural justice, or the procedure provided in the constitution of NUPENG being followed, he was removed by the National Executive Council (NEC) of NUPENG as the branch chairman of the Shell branch of NUPENG and zonal vice chairman of the Warri zonal council of NUPENG and expelled from the union. The claimant/respondent is challenging his expulsion from the union. The processes of Part 1 of the TDA are in relation to trade disputes and workers who are under a union. This matter is not a trade dispute within the meaning given in the Interpretation section of the TDA. Rather, it is a matter that falls squarely within the purview of section 7 (1) (a) (i) & (c) (iv) of the National Industrial Court Act 2006 and as such, the claimant can access this court directly. The claims of the claimant/respondent relate to the interpretation of the constitution of NUPENG and his constitutional right to a fair hearing. I therefore hold that this matter is not a trade dispute and as such there is no condition precedent to the invocation of the original jurisdiction of this court to entertain this matter. On the issue of locus standi, I find that the statement of facts and complaint show that the claimant has a justiciable interest and has suffered injury in respect of which he ought to be heard and I so hold. See Owodunni v Registered Trustees of C.C.C. & ors [2000] 6 SC (Pt iii) 60, Adesanya v President FRN & ors [1981] 12 NSCC 146. For all the reasons given above, the preliminary objection fails in its entirety. It is frivolous, misconceived and simply brought to waste the time of the court. It is hereby dismissed in its entirety. The matter is to proceed to hearing. Costs of N10,000.00 is to be paid by the defendants/applicants to the claimant/respondent. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae