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JUDGMENT This is a matter referred from the Hon. Minister of Labour and Productivity acting pursuant to the powers conferred on him under section 14(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004. By a covering letter to the referral instrument dated November 5, 2010 with Ref. No ML.HE/948/CON/1/33 and the referral instrument dated 29th October 2010, this court is “to inquire into the trade dispute now existing between the Maritime Workers Union of Nigeria and the National Union of Petroleum and Natural Gas Workers (NUPENG) over poaching of Dockworkers working under Polmaz Nigeria Limited – Stevedoring Contractor – Chevron Jetty, Escravos, Delta State”. The matter had earlier been referred to the Industrial Arbitration Panel (IAP), which heard the dispute and made an award. The appellant, dissatisfied with the IAP award, objected to it which led to the matter being referred to this court by the Hon. Minister of Labour and Productivity. The IAP award and the objection by the appellant are attached to the referral instrument. To state the facts briefly as extracted from the records, Polmaz Nigeria Ltd is a stevedoring contractor supplying labour to Chevron Nigeria Ltd an oil company engaged in oil exploration and production. Its employees are trained as dock workers. Polmaz has a contract with Chevron Nigeria to provide marine services which involves the loading and off-loading of boats and badges at the dock and transporting goods to their destination within operational areas. Polmaz employees serve as forklift drivers, riggers, and crane operators. The appellant NUPENG is the union that organizes the junior staff of Chevron Nigeria Ltd. The Polmaz Nig. Ltd staff supplied to Chevron Nigeria Ltd work in the facilities of Chevron applied to NUPENG for membership of the union in exercise of their right to freedom of association. The respondent resisted the action of the appellant to organise Polmaz staff as its members insisting that Polmaz staff are its members and that the appellant is poaching its members. At the conclusion of the proceedings, the IAP made the following award: Based on the above foregoing, the tribunal awards in favour of the first party. For the avoidance of doubt, the tribunal further rules as follows; (i) Maritime Workers Union of Nigeria is the appropriate union to which Polmaz Nigeria Ltd employees should belong. (ii) NUPENG should desist from further attempts at poaching or unionising the said employees of Polmaz Nigeria Ltd. Upon receipt of the award, the Minister of Labour communicated the award to the appellant vide a notice of award dated October 6, 2010. Dissatisfied with the award, the appellant entered an objection and the dispute was referred to this court by the Minister of Labour for adjudication. Learned counsel to the appellant in its written brief raised three issues for determination as follows: 1. Whether in the face of a similar subsisting matter of Suit No. FHC/M/116/2006 at the High Court of Delta State, Effurun Judicial Division and now on appeal to the Court of Appeal, Benin-City; the lack of locus standi of the respondent; the estoppel by conduct of the respondent; and the inalienable right constitutionally entrenched of the workers of Polmaz Limited to join a union of their choice for the protection of their interest the IAP has jurisdiction to inquire into dispute. 2. Whether the employees of Polmaz Limited are dockworkers and whether the respondent union is the trade union vested with jurisdiction to unionize the said workers of Polmaz Limited. 3. Whether by the combined provisions of section 12(4) of the Trade Unions Act Cap. T14 Laws of the Federation of Nigeria 2004 and section 40 of the Constitution of the Federal Republic of Nigeria 1999, the individual workers of Polmaz Limited are not at liberty to join any union of their choice for the protection of their interests and whether they can be compelled by any legal means such as the “jurisdictional scope of unions” apparently enshrined in a statute to join a union other than that of their choice. On issue 1, learned counsel to the appellant contended that the IAP lacked the jurisdiction to inquire into the dispute as the action before it constituted an abuse of the judicial process for the issues at stake are essentially the same issues in an earlier and still subsisting proceeding Suit No. EHC/M/116/2006 pending before the Delta State High Court and the subject of an appeal in the Appeal Court Benin City. He stated that the parties herein are the same parties in the pending action and that the reliefs are the same. He stated that he raised this objection at the IAP proceedings. He submitted that the action maintained at the Industrial Arbitration Panel is an abuse of court process by the respondent which would lead to the IAP and the High Court arriving at possible different decisions on essentially the same facts. He argued that when an abuse arises, it is the latter matter that ought to be dismissed and he urged the court to dismiss the proceedings at the IAP. He cited Chime v. Onyia [2009] All FWLR (Pt. 480) 673 at 695 – 696, Best Western Co. Ltd v. Udomisor [2002] FWLR (Pt. 97) 749 at 761 – 763, African Reinsurance Corporation v. JDP Construction Nig. Ltd [2003] FWLR (Pt. 153) 251 at 270, Christian Outreach Ministries Inc v. Cobham [2006] All FWLR (Pt. 310) 1675 at 1692, Ogoejeofo v. Ogoejeofo [2006] All FWLR (Pt. 301) 1792 and Nwaogwugwu v. President F.R.N. [2007] All FWLR (Pt. 358) 1151. He submitted that the action of the IAP in proceeding with the knowledge of a similar pending action in the High Court amounts to judicial impertinence and judicial rascality, citing Animashaun v. Gov. of Lagos State [2005] All FWLR (Pt. 247) 1565. He submitted in the alternative that the respondent failed to file any counter-affidavit to the facts deposed to in Suit No. EDC/M/116/2006 and is deemed to have admitted the uncontroverted evidence in that suit referring to section 151 of the Evidence Act LFN 2004. He urged the court to hold that in the circumstances there are no facts upon which the respondent could have sustained the action at the IAP. Learned counsel further submitted that the respondent lacks the locus standi to commence and maintain the action at the IAP and that the court should look at Ministerial instrument of referral and the respondent’s memoranda. He contended that it is the affected workers who can bring an action with respect to the union they choose to belong to. That to hold otherwise will be to deny the workers their constitutional right. He submitted that locus standi denotes the legal capacity to institute proceedings for the reliefs sought for in a court of law. He cited the following cases in support of his submission on locus standi: A.G. Akwa Ibom State v. Essien [2004] All FWLR (Pt. 233) 1730 at 1760, Ayowe v. Obasanjo [2006] All FWLR (Pt. 333) 1967, Umar v. White Gold Ginnery Nig. Ltd [2007] All FWLR (Pt. 358) 1099 at 1120, Ntia v. Jones [2007] All FWLR (Pt. 351) 1600, A. G. of Anambra State v. A. G. Federation [2007] All FWLR (Pt. 379) 1218, Madukolu v. Nkemdilim [1962] 2 SCNLR 341, Mosie v. Mbamalu [2006] All FWLR (Pt. 341) 1230, Ogunmokun v. Military Administrator, Osun State [1999] 3 NWLR (Pt. 594) 261, Ayoola v. Baruwa [1999] 11 NWLR (Pt. 628) 595, Ebongo v. Uwemedimo [1995] 8 NWLR (Pt. 411) 22 and Owodunni v. Registered Trustees of CCC [2000] FWLR (Pt. 9) 1455. He submitted that sections 40 and 46 of the 1999 Constitution which deal with fundamental right to freedom of association and the conferment of an original jurisdiction on the High Court in matters arising from such breaches ousts the jurisdiction of the IAP to enquire into the dispute. He referred to the Fundamental Rights (Enforcement Procedure) Rules 1979 particularly Order 1 Rule 1(2) and Jack v. University of Agriculture, Makurdi [2004] All FWLR (Pt. 200) 1506 at 1518. He submitted that the issues the respondent brought before the IAP do not revolve around a trade dispute which is defined as any dispute between employers and workers or between workers and workers which is connected with the employment or non employment and physical condition of work of any person. He referred to RTEAN v. NURTW [2005] All FWLR (Pt. 254) 920 at 930, A.G. Oyo State v. NLC, Oyo State Chapter [2003] 8 NWLR (Pt. 821) 1 at 23 and section 48 of the Trade Disputes Act Cap. T8 LFN 2004 for the meaning of a trade dispute. He submitted that the ingredients that make up a trade dispute are lacking in this case and that the dispute does not involve a trade but rather has to do with the rights of membership to a union of their choice. He submitted that the IAP lacks jurisdiction to hear the dispute and urged the court to so hold, citing National Union of Electricity Employees v. B.P.E. [2010] 7 NWLR (Pt. 1194) 538 at 565. On issue 2, learned counsel to the appellant submitted that no direct and cogent evidence was led to identify the workers of Polmaz Nigeria Ltd working for Chevron Nigeria Ltd as dockworkers. He argued that the respondent having failed to do this, the only conclusion to draw is that the company is not an employer of dockworkers and the employees are not dockworkers. He referred to sections 34 and 35 of the Nigeria Dock Labour Act Cap. N103 LFN 2004, Rules 2 and 3 of the Dock Labour (Registration and Control of Employment) Rules made pursuant to section 68 of the Labour Act Cap. L1 LFN 2004. He submitted that by virtue of the jurisdictional scope of the appellant contained in the extant laws in force, the workers of Polmaz Nig. Ltd working for Chevron Nigeria Ltd are her members in consequence of the law, the economic activity they carry out at the workplace and in consequence of their application to so be. He submitted that as of fact and on proper interpretation of all relevant laws especially the Trade Unions Act Cap T14 LFN 2004, Mineral and Mining Act Cap. N12 LFN 2004, Oil Terminal Dues Act Cap. 08 LFN 2004, Petroleum Act Cap. P10, LFN 2004, Mineral Oils (Safety) Regulations made pursuant to section 9 of the Petroleum Act and Regulation 31 of the Petroleum (Drilling and Production) Regulatory Rules made pursuant to section 9 of the Petroleum Act, the appellant is the proper union with jurisdiction to unionize the junior workers of Polmaz Nig. Ltd. He submitted that by item No. 13, Part B, and No. 10 of Part C in the third schedule of the Trade Unions Act, the appellant is the proper union with jurisdiction over the workers of Polmaz Nig. Ltd working on Chevron facilities in that they render services to and in the oil and gas industry. He referred to the Oxford Advanced Learners Dictionary, 6th Edition, for the meaning of the word “operations” as used in the provision of the Third Schedule, Part B, No. 13 of the Trade Unions Act: Workers in oil well and natural gas well operations including prospecting, drilling, crude oil and natural gas pipelines. Refining, distribution and marketing of natural gas, extraction of oil and natural gas and petroleum products including petrol filling stations, petroleum tankers driver, but excluding the construction of oil and gas pipelines. He stated that Polmaz Nig, Ltd and her workers working in Chevron Nig. Ltd are not into the construction of oil and gas pipelines and are, therefore, eligible to be members of the appellant union. He referred to Black’s Law Dictionary, 8th Edition, for the meaning of the word “including” as used in the above mentioned provision and submitted that it is not limited to workers directly into prospecting, drilling, crude oil and natural gas pipeline operations but also extended to all such services as are all part of oil well and natural gas well operations, citing F.R.N. v. Fani-Kayode [2010] All FWLR (Pt. 534) 181 at 185. On issue 3, learned counsel submitted that evidence was led at the IAP that Polmaz Nig. Ltd workers freely and voluntarily applied to join the appellant union and were admitted by the appellant as members. He argued that section 12(4) of the Trade Unions Act “simply takes away all the noise made about jurisdictional scope of unions” or at best whittles same down. He contended that persons are by this amendment to the Trade Unions Act made in 2005 free to join a trade union or to exit it without more thereby putting to rest the “negative theory of automatic membership”. He submitted that the Schedule to the Trade Unions Act that embodies the jurisdictional scope is not made pursuant to any section of the Trade Unions Act and is at best directory and not mandatory. He argued that the respondent’s action is an attempt to deny Polmaz Nig. Ltd the right to be members of the appellant union and to force them to become members of the respondent union. He submitted that by the provisions of section 1(1) of the 1999 Constitution, as amended, the Constitution is supreme and its provisions shall have binding force on all authorities and persons and that by subsection (3) if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of its inconsistency be void. That by the provisions of section 40 of the 1999 Constitution, “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 other association for the protection of his interests”. He urged the court to hold that the workers of Polmaz Nig. Ltd exercised their constitutional right to associate with other persons and belong to the appellant union and any attempt to prevent them from so doing is inconsistent with the provisions of the constitution and is deemed void to the extent of such inconsistency and be so declared. He cited A. G. Abia State v. A. G. Federation [2002] All FWLR (Pt. 101) 1419 at 1501, In Re Olafisoye [2004] All FWLR (Pt. 198) 1106 and Adefemi v. Abegude [2004] All FWLR (Pt. 203) 2109 at 2127. He submitted that by the combined provisions of section 12(4) of the Trade Unions Act and section 40 of the 1999 Constitution, as amended, the individual members of Polmaz Nig. Ltd cannot be compelled by any legal means such as jurisdictional scope of unions enshrined in a statute to join a union other than that of their choice. He urged the court to set aside the award of the IAP and enter judgment for the appellant on the merits, hold that the appellant did not poach members of the respondent union and that junior workers of Polmaz are entitled to join and remain members of the appellant union. Learned counsel to the respondent in her address raised 3 issues for determination as follows: 1. Whether the Industrial Arbitration Panel had jurisdiction to entertain the respondent’s trade dispute and make the award, the subject matter of this appeal. 2. Whether the Industrial Arbitration Panel was right in its findings that the employees of Polmaz Nigeria Ltd are dock workers and as such fall within the jurisdictional scope of the respondent. 3. Whether by virtue of section 40 of the Constitution of the Federal Republic of Nigeria (as amended) and section 12(4) of the Trade Unions Act (Cap. T14) Laws of the Federation of Nigeria 2004, the workers of Polmaz Nigeria Ltd can join any trade union of their choice. On issue one, she submitted that an abuse of court process can only arise where there is a multiplicity of actions between the same parties on the same subject matter over the same issues, citing Ngige v. Achukwu [2004] 8 NWLR (Pt. 875) 356. She submitted that these factors are absent in the dispute before the IAP and Suit No. EHC/M/116/2006. She stated that the parties in Suit No. EHC/M/116/2006 are not the same parties in the dispute at the IAP neither are the issues or the subject matter. She stated that the subject matter in Suit No. EHC/M/116/2006 is the enforcement of fundamental rights of the named plaintiffs in that suit and other Polmaz Nig. Ltd workers, while the dispute before the IAP, the subject matter of this appeal is an inter-union dispute between the appellant and the respondent over the poaching of Polmaz workers and the jurisdictional scope of the parties. She urged the Court to hold that the IAP was right in holding that the trade dispute referred to it was not an abuse of court process and that it was right in assuming jurisdiction. She went on to submit that the respondent’s refusal to file a counter-affidavit in Suit No. EHC/M/116/2006 cannot in law affect its right to deny the allegations made by the appellant in this case as Suit No. EHC/M/116/2006 is a separate and distinct suit from this. She stated that the respondent filed a preliminary objection challenging the jurisdiction of the State High Court to entertain the suit. She submitted that the law is clear that once a party is challenging jurisdiction, he cannot take any fresh step that would amount to a waiver of his right to continue in the challenge. She submitted that the fact that respondent did not file a counter-affidavit to the said suit does not amount to an admission of the facts alleged in the affidavit in support of that suit. She submitted that it is the claim of the plaintiff to an action that gives the court jurisdiction to entertain a matter and not the defense put forward by the defendant, citing AGF v. Guardian Newspapers Ltd [1999] 9 NWLR (Pt. 618) 187. She stated that the memoranda filed by the first party/respondent at the IAP and the terms of reference of the IAP discloses that the dispute submitted for arbitration is an inter-union dispute on jurisdictional scope and not a fundamental right enforcement action to which section 46 of the 1999 Constitution, as amended, relates and applies to. She urged the Court to hold that the IAP was right in assuming jurisdiction and discountenance the appellant’s submissions. Learned counsel submitted that the appellant’s contention that the dispute before the IAP was not a trade dispute is misconceived. She submitted that it is an inter-union dispute which the Court of Appeal in the case of Ekong v. Oside [2005] 9 NWLR (Pt. 929) 102 at 114 has held is a species of trade disputes which a High Court has no jurisdiction to entertain. She further submitted that the question of which union should unionize workers rendering dock services and collect check-off dues is one that is connected with employment or conditions of service and is, therefore, a species of trade dispute, which falls within the ambit of section 24 of the Trade Disputes Act and is governed by the procedure that applies to settlement of trade disputes in respect of which the IAP has jurisdiction to entertain. She referred to section 254C of the 1999 Constitution, as amended, and submitted that a State High Court cannot entertain an inter-union dispute in its appellate jurisdiction from awards of the IAP. On issue 2, she submitted that the IAP evaluated the evidence before it and that the law is trite that an appellate court will not interfere with such evaluation unless it is shown that the trial court failed to follow sound principles of law or made perverse findings in the process of evaluation, citing Edjekpo v. Osia [2007] 8 NWLR (Pt. 1037) 635 at 673. She submitted that the summary of the oral evidence led at the IAP is that Polmaz Nig. Ltd is a Marine service provider that has a labour service contract with Chevron Nig. Ltd to provide it with skilled and semi-skilled labour to operate cranes in its dock. That the intent of Chevron Nig. Ltd is to outsource its dock. She also referred to the documentary evidence before the IAP and submitted that the cardinal rule of evaluation is that documentary evidence is used for testing and ascribing probative value of oral evidence over adverse oral evidence. That the IAP was right when it relied on the documentary evidence before it of the report of a joint inspection on the activities of Polmaz workers at Chevron facility in Escravos and that it is the most reliable evidence. She cited Ngige v. Obi [2006] 14 NWLR (Pt. 999) 1 at 233, INEC v. Oshiomole (supra – incomplete citation), A. G. Anambra State v. Okeke [2002] 12 NWLR (Pt. 782) 575 at 603, Olokun v. Aiyelabegan [2004] 2 NWLR (Pt. 858) 504 at 516, Akinbisade v. State [2006] 17 NWLR (Pt. 1007) 184 at 201 and Aiki v. Idowu [2006] 9 NWLR (Pt. 984) 47 at 65. She submitted that the evidence of the appellant’s witnesses as to the nature of the services being rendered by Polmaz Nig. Ltd workers to Chevron Nig. Ltd was contradictory. She submitted that the IAP was right to have disbelieved the contradictory evidence of the appellant’s witnesses and equally right when it ascribed more probative value to and relied on the oral evidence of the Managing Director of Polmaz Nig. Ltd and the Manager, Employees and Industrial Relations of Chevron. Learned counsel to the respondent contended that by virtue of Part B of the Third Schedule made pursuant to the Trade Unions Act which deals with jurisdictional scope of trade unions, the respondent has the jurisdiction to unionise all dock workers. She referred to paragraph 8 of the First Schedule to the Trade Unions Act and submitted that the Court of Appeal in the case of Sea Trucks Nig. Ltd v. Pyne [1999] 6 NWLR (Pt. 607) 514 at 520 held that the purpose of paragraph 8 of the First Schedule is to ensure that a worker’s membership is sought into a trade union that normally engages in the trade or industry which he is engaged in. She submitted that Polmaz Nig. Ltd being a marine service company is engaged in the trade or industry where the respondent has the jurisdictional scope to unionise employees and as such Polmaz staff are eligible members of the respondent. She stated that every company carrying on business as a marine services provider operate under the Nigerian Maritime Administration and Safety Agency Act a notorious fact she urged the court to take judicial notice of. She submitted that the Supreme Court has held in the case of Osawe v. Registrar of Trade Unions [1985] 1 NWLR (Pt. 4) 755 at 762 that the compartmentalization of trade unions is not unconstitutional. Learned counsel further submitted that by the combined effect of section 16A of the Trade Unions Act and section 5(3) of the Labour Act Cap. L1 LFN 2004, eligibility to belong to a trade union is the yardstick for determining the deductibility of check-off dues, citing Tuyil Nig. Ltd v. NUCFRLNMPE (unreported) NIC/9/2003 delivered on 23rd January 2008. That by section 5(3) of the Labour Act, a worker may contract out of the system in writing. She argued that there was no evidence before the IAP that any of the workers of Polmaz Nig. Ltd contracted out of the respondent in writing and they are, therefore, deemed to be members of the respondent union. She argued that the appellant’s claim of having unionized Polmaz workers was nothing short of poaching. On issue 3, she submitted that the provisions of section 12(4) of the Trade Unions Act does not abolish the jurisdictional scope of trade unions as the law is well settled that there cannot be an implied repeal of a statute, citing Asims (Nig) Ltd v. L.B.R.B. Development Authority [2002] 8 NWLR (Pt. 769) 349 at 354. She argued that if the intention of the legislature was to abolish the jurisdictional scope of trade unions by virtue of section 12(4) of the Trade Unions Act, they would have expressly repealed the provisions of the Third Schedule to the Act. She submitted that section 12(4) of the Trade Unions Act has not given the worker the right to join any trade union that does not represent his industry, but simply provides that a worker shall not be forced to join any trade union or be victimized for refusing to remain a member. She further submitted that the right to freedom of association guaranteed in section 40 of the 1999 Constitution is not an absolute one but qualified. She cited R.T.N.A.C.H.P.N. v. N&HWUN [2008] 2 NWLR (Pt. 1072) 575 at 585 and Sea Trucks Nig. Ltd v. Pyne (supra). She submitted that the position of the law is that a worker has no unfettered right to join any trade union of his choice but one that covers his industry and urged the court to so hold, uphold the award of the IAP and dismiss the appeal with substantial costs. Learned counsel to the appellant, replying on points of law, contended that learned counsel to the respondent attempted to lead evidence in the address. He argued that counsel’s address is not a substitute for evidence in court. He cited Zein v. Geidam [2004] All FWLR (Pt. 237) 460 at 480, Bayo v. Njidda [2004] FWLR (Pt. 192) 19 at 83, Chime v. Ezea [2009] All FWLR (Pt. 470) 678 at 748 and Atamali v. Ebosele [2009] All FWLR (Pt. 473) 1387 at 1397. He submitted that a party who challenges the substantive jurisdiction of court cannot be said to have waived any right by taking any step as even such a jurisdictional challenge is best suited in the statement of defence. He submitted that it is not the law that a party challenging the court’s jurisdiction need not file a counter-affidavit as that will amount to a demurrer which has been abolished. That the uncontroverted facts deposed to in the appellant’s affidavit in support of her application at the High Court are deemed admitted. He referred to Order 8 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and section 75 of the Evidence Act Cap. E11 LFN 2004. He submitted that the case of Ekong v. Oside (supra) cited by the respondent’s counsel is not applicable as the issues in this case are not trade dispute issues per se but individual rights of persons to joint a union of their choice as guaranteed by section 40 of the 1999 Constitution, as amended. He submitted that the IAP has no jurisdiction to entertain matters relating to fundamental human rights neither is the National Industrial Court specially conferred with jurisdiction to entertain fundamental rights issues as its jurisdictional competence is contained in section 7 of the NIC Act 2006. That any such conferment would be void for inconsistency with section 46 of the 1999 Constitution. He submitted that in the case of Sea Trucks Nig. Ltd v. Pyne (supra), “the same Court of Appeal” came to an opposite decision in a sister case of Anigboro v. Sea Trucks Nig. Ltd [1995] 6 NWLR (Pt. 399) 35 and held that the Constitution guarantees citizens the right to belong to any association of their choice. It was his contention that Sea Trucks Nig. Ltd v. Pyne (supra) is no longer good law generally speaking in that in deciding that case in 1999, the Court of Appeal did not have the opportunity of interpreting the 2005 amendment to the Trade Unions Act and, therefore, this case today is no longer the law. That at best “Sea Trucks Nig. Ltd v. Pyne, supra, today is no longer the law and at best the Schedule to the Trade Unions Act Cap. T14 LFN 2004 that embodies jurisdictional scope which is indeed not made pursuant to any section of the Trade Unions Act Cap. T14 LFN 2004 is at best directory and not mandatory”. It also was his contention that the case of Osawe v. Registrar of Trade Unions (supra) is not applicable and is distinguishable in that it did not deal with automatic membership of union members, nor with persons exercising their rights to join already existing unions of their choice but rather dealt with persons creating a hitherto non-existing union and registration of the said new union. He argued that the Supreme Court decided this case before the 2005 amendment to the Trade Unions Act and the decision was taken when the Constitution was subjugated to Decrees. He submitted that by the provisions of section 40 of the 1999 Constitution as amended, the workers of Polmaz Nig. Ltd have legally exercised their rights to assemble freely, associate with other persons and belong to the appellant union. That any statute that attempts to prevent them from so doing is inconsistent with the Constitution and is deemed void to the extent of such inconsistency, citing A. G. Abia State v. A. G. Federation (supra), Adefemi v. Abegude (supra) and In Re Olafisoye (supra). We have carefully considered all facts in dispute, the proceedings at and the award of the Industrial Arbitration Panel (IAP) including the submissions and authorities cited by counsel. As a preliminary point, we must point out that reference to the Evidence Act LFN 2004 and section 24 of the Trade Disputes Act, all repealed law, by the counsel to the appellant shows a poor appreciation of the law. It reveals how dated in the law counsel is. In our view, the three issues formulated by learned counsel for the respondent capture all the issues raised by the parties in this case. In this wise, therefore, we are inclined to adopt the three issues formulated by her as the issues for determination in this judgment. The appellant at the proceedings of the Industrial Arbitration Panel (IAP) had challenged the jurisdiction of the IAP to entertain this matter on these three grounds: (i) that the first party/respondent herein lacked the locus standi to institute the matter as the workers of Polmaz Nig. Ltd ought to bring the action; (ii) that the action is an abuse of court process as there is a subsisting case EHC/M/115/2006 between the first party/respondent and the workers of Polmaz; (iii) that the first party is estopped from bringing this action. The objection was over-ruled in a considered ruling by the IAP and the panel proceeded to assume jurisdiction. The appellant contends before this court that there is pending an earlier and similar subsisting matter with essentially the same issues Suit No. EHC/M/116/2006 at the High Court of Delta State and it is currently the subject of an appeal in the Court of Appeal Benin Division. That by reason of this fact, the action before the IAP constitutes an abuse of the court process and should be dismissed. It is trite law that abuse of court process arises where there is a multiplicity of actions between the same parties, the same subject matter and the same issues. The general principle is that the institution of a multiplicity of actions in respect of the same subject matter to the harassment, irritation and annoyance of the defendant in such a manner interferes with the administration of justice. See N.V. Scheep v. M.V. “S.araz”, [2000] 15 NWLR (Pt. 691) 622 at 665, Okafor v A. G. Anambra State [1991] 6 NWLR (Pt. 200) 659 and Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156. The parties in Suit No. EHC/M/116/2006 are Jonathan Obayawha, Henshaw Eyikimi, Benson Agor (Qua Chairman, Secretary and Treasurer of the Polmaz branch of National Union of Petroleum and Natural Gas Workers (NUPENG) for themselves and on behalf of the members of the Polmaz Branch of the National Union of Petroleum and Natural Gas Workers (NUPENG) v Maritime Workers Union of Nigeria, John Olomu (Qua Assistant Chief Labour Officer Ministry of Labour and Productivity Warri). The applicants in the said suit are applying for the enforcement of their fundamental rights. The terms of reference in the referral instrument to the IAP by the Minister of Labour and Productivity is to enquire into the trade dispute between the respondent and appellant herein over poaching of dock workers working under Polmaz Nig. Ltd. We find that the parties are not the same, the subject matter and issues are not the same and there is no multiplicity of suits. At the proceedings of the IAP, the second party/appellant raised this objection in respect of Suit No. EHC/M/115/2006 and not Suit No. EHC/M/116/2006. The objection now raised before us is in respect of Suit No. EHC/M/116/2006 which is distinct from this instant suit, a trade dispute referred to the IAP by the Minister of Labour for resolution. We hold that there is no abuse of the process of court by the respondent and that the IAP was right to have assumed jurisdiction to entertain the trade dispute reported by the respondent and referred to it by the Minister of Labour. In the alternative, the appellant contends that the respondent failed to file a counter-affidavit in Suit No. EHC/M/116/2006 and is, therefore, deemed to have admitted the facts deposed to in that action and as such there are no facts upon which the respondent could have sustained the action at the IAP. The said action is not before this court. We have earlier held that it is distinct from this instant one. The respondent’s failure to file a counter-affidavit in Suit No. EHC/M/116/2006, another action, has no bearing on this case and does not affect the respondent’s right to deny allegations made by the appellant in this matter. We cannot deem as admitted by the respondent in this suit, facts in another suit not before us as the appellant’s counsel would want this court to do. In any event, there is nothing before this Court to show that the case has been decided on merit to warrant this Court taking judicial notice of facts proved in it. The appellant contends that the Court is deprived of jurisdiction because the respondent lacks the locus standi to institute this action. Locus standi denotes the legal capacity to institute proceedings in a court of law and it is the claim of the first party/respondent before the IAP that would determine if the respondent has locus. The first party/respondent reported an inter-union trade dispute to the Minister of Labour on unionization of the workers of Polmaz Nig. Ltd bothering on its jurisdictional scope and that of the second party/appellant. The first party/respondent in its memoranda at the IAP showed that it has a justiciable interest and will suffer injury or damage as a result of the 2nd party/appellant’s action. This clearly shows that the first party/respondent has the locus standi to institute this action and the IAP was not deprived of jurisdiction to entertain the matter referred to it by the Minister of Labour vide the referred letter dated 15th December 2008. See Adesanya v. President FRN [1981] 12 NSCC, 146 and Adesokan v. Prince Adegorolu [1997] 3 NWLR (Pt. 493) 261. The appellant has also contended that the IAP has no jurisdiction to enquire into this matter being a dispute dealing with the fundamental right to freedom of association as guaranteed in sections 40 and 46 of the 1999 Constitution. The matter before the IAP was not a fundamental rights matter but a trade dispute on the jurisdictional scope of the parties; and we so hold. The appellant argued that the dispute before the IAP was not a trade dispute as it did not fall within the meaning of section 48 of the Trade Disputes Act in that this is not a dispute connected with the employment or non-employment or the terms of employment or physical conditions of work of any person. This is an inter-union dispute which falls squarely within the Trade Disputes Act (TDA) Cap. T8 LFN 2004. Section 2(1) of the Trade Disputes Act provides as follows: 2(1). Subject to the provisions of subsection (3) of section 21 of this Act, no person shall commence an action, the subject matter of a trade dispute or any inter or intra-union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void. In the case of N.U.R.T.W v. Ogbodo [1998] 2 NWLR 189 at 199, the Court of Appeal per Tobi, JCA (as he then was) said regarding trade unions: In trade union matters, the determination of the concept or ambit of a trade dispute is most crucial in the construction of the rights of the parties. It is the pivot on or upon which trade unionism in labour relationship devolves or orientates. See also Ekong v. Oside [2005] 9 NWLR (Pt. 929). An inter-union dispute such as this invokes the “conciliation and arbitration jurisdiction” provided for in the Trade Disputes Act. It is the Minister of Labour that sets the process of arbitration going by referring disputes to the IAP. See sections 5, 7 and 9(1) of the Trade Disputes Act. We hold that the IAP has been conferred with jurisdiction by the Trade Disputes Act to entertain this matter referred to it by the Minister of Labour. In resolving the second issue formulated by the respondent, recourse must be to the evidence adduced at the proceedings of the IAP. The Managing Director of Polmaz Nig. Ltd Mr. Jeri Omaseye testified that he is a marine service provider and that Polmaz is a contractor to Chevron Nig. Ltd providing skilled and semi-skilled labour to operate cranes at their dock. He told the IAP that the personnel he provides to Chevron Nig. Ltd are dock workers. Mr. Sam Otuonye, a Human Resources Officer employed by Chevron Nig. Ltd told the IAP that Polmaz Nig. Ltd has a service contract to provide stevedoring services to Chevron and that the Polmaz workers load and unload vessels at the Escravos dock. Before the IAP is the joint report of a detailed labour inspection of Polmaz Nig. Ltd sent to the Minister of Labour dated 30th August 2006 and carried out by J. O. Olomu, Asst. Labour Officer. The report is that Polmaz does stevedoring contract for Chevron Nig. Ltd and that NUPENG does not appear to be the appropriate trade union to organize Polmaz workers. The evidence of the appellant’s witnesses as to the nature of services rendered by Polmaz workers was not consistent. We find that from the totality of the evidence adduced, oral and documentary that the IAP was right in its findings that the employees of Polmaz Nig. Ltd are dockworkers. The question which then arises is which union dockworkers rightfully belong to. The jurisdictional scope of the appellant and respondent is contained in the Third Schedule, Part B of the Trade Unions Act (TUA) Cap. T14 LFN 2004. The appellant’s counsel submitted that “the Schedule that embodies the jurisdictional scope which is indeed not made pursuant to any section of the Trade Unions Act Cap. T14 LFN 2004 is at best directory and not mandatory”. We must state that the dire need to streamline trade unions as a result of proliferation and a chaotic labour regime led to the restructuring of trade unions beginning with the restructuring exercise as contained in the legal notice No. 92 Re-structuring of Trade Unions, official Gazette of the Federal Republic of Nigeria No. 6 of 8th February 1978. This culminated in the restructuring exercise under Decree 4 and 26 of 1996 where trade unions were restructured into named unions listed out and their respective jurisdictional scope provided for, all in Third Schedule Parts A, B and C to the Trade Unions Act, as amended. See Osawe v. Registrar of Trade Unions [1985] 1 NWLR (Pt. 4) 755, a case decided during the 1979 – 1983 democratic dispensation. It is, therefore, an error for counsel to submit that “jurisdictional scope” is not made pursuant to any section and is at best directory and not mandatory. The 2005 Trade Unions Amendment Act did not repeal, amend or substitute any of the provisions of the Third Schedule Parts A, B and C of the Trade Unions Act (TUA) Cap. T14 LFN 2004. The jurisdictional Scope of both the respondent and appellant is reproduced as follows: 3. Maritime Workers Union of Nigeria. All workers in the Nigerian Ports Authority and all persons employed in the manning of ocean going, inland waterways, coastal and harbor vessels or crafts afloat. All dock-workers including workers engaged by shipping, clearing and forwarding agencies, but excluding managerial, professional and administrative staff. Components: (1) Dock-Workers Union of Nigeria. (2) Nigeria Ports Authority Workers Union. (3) National Union of Seamen and Water Transport Workers. (4) Union of Shipping, Clearing and Forwarding Agencies Workers of Nigeria. 13. National Union of Petroleum and Natural Gas Workers. Workers in oil well and natural gas well operations including prospecting, drilling, crude oil and natural gas pipelines, refining, distribution and marketing of natural gas, extraction oil and natural gas and petroleum products including petrol filling stations, petroleum tanker drivers, but excluding the construction of oil and gas pipelines. It can be clearly seen that dock workers come within the jurisdictional scope of the respondent, Maritime Workers Union of Nigeria. The labour supplied by Polmaz Nig. Ltd to Chevron Nig. Ltd consist dock workers who belong to the Maritime Industry. The type of work done and the industry is the yardstick for determining jurisdictional scope. We hold that the Maritime Workers Union of Nigeria, the respondent, is legally empowered to organize the workers of Polmaz Nig. Ltd who are dock workers contracted to work in Chevron Nig. Ltd facilities and not the appellant union, NUPENG. The appellant’s counsel has argued that by the combined provisions of section 12(4) of the Trade Unions Act and section 40 of the 1999 Constitution, the individual workers of Polmaz Nig. Ltd are at liberty to join any union of their choice which they freely did by applying in writing to join the appellant union. Voluntarism and the freedom to choose which union to belong to is limited to the unions empowered to operate within a clearly defined jurisdictional scope. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU v. ASCSN [2004] 1 NLLR (Pt 3) 429, PERESSA v. SSACGOC [2009] 14 NLLR (Pt. 39) 345, Osawe v. Registrar of Trade Unions (supra). The fundamental rights guaranteed in Chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) and (b) provides for derogation from these rights. The right to choose which union to belong to is a qualified right. We hold that the jurisdictional scope as contained in the Third Schedule Parts A, B and C to the Trade Unions Act is still applicable to all the trade unions and that there is no inconsistency between the Third Schedule Part B as contained in the Trade Unions Act and section 40 of the 1999 Constitution, as amended. The decisions in the cases of Ekong v. Oside (supra), Sea Trucks Nig. Ltd v. Pyne (supra), Anigboro v. Sea Trucks Nig. Ltd (supra) and Osawe v. Registrar of Trade Unions still remain the position of the law today; and good law at that. The decisions have not been affected by the 2005 amendment to the Trade Unions Act neither has any of the decisions been over-turned on appeal. The argument of counsel to the appellant that the 2005 amendment to the TUA gives unfettered freedom to workers to join any union of their choice is an erroneous interpretation of the 2005 Act. If the argument of counsel were correct the restriction placed, for instance, on the registration of a Federation of Trade Unions will not have been the case. By section 35(1)(b) of the Trade Unions Act, as amended by the 2005 Amendment Act, a new Federation of Trade Unions can only be registered if none of its composing trade unions is already a member of another registered Federation of Trade Unions. For all the reasons given above, this appeal fails in its entirety and is dismissed. The award of the IAP is hereby affirmed as follows: (i) Maritime Workers Union of Nigeria is the appropriate union to which the eligible employees of Polmaz Nigeria Ltd belong. (ii) NUPENG should desist from further attempts at poaching or organizing the said employees of Polmaz Nigeria Ltd. We award cost of N50,000 in favour of the respondent to be paid by the appellant. Judgment is entered accordingly. ………………………….. Hon. Justice B. B. Kanyip Presiding Judge ........….……………………………. ………………………….……… Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge