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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: May 25, 2012 SUIT NO. NICN/LA/26/2012 BETWEEN 1. Mr George Uzoaru 2. Mr Edwin Okoduwa (for themselves and on behalf of the workers of Dangote Cement Plc) - Claimants AND 1. Dangote Cement Plc (formerly Dangote Industries Limited) 2. Mr Kefas Zakka (Sued as the Human Resources/Administrative Manager). - Defendants REPRESENTATION Chief S.W. Baidi for claimants. With him Miss A.N. Anionwu. C.C. Ottih for defendants. RULING The claimants filed this complaint against the defendants on the 2nd February, 2012 claiming the following: (1) An order setting aside the 1st defendant’s purported handbook with commencement date of 1st November, 2010 which was hurriedly and unilaterally put together by the defendants during the lifetime of suit No ID/581m/2010 to shortchange and/or underpay the claimants in the imminent close down of business at the Apapa branch of the company. (2) An order appointing an independent financial expert to take over the preparation of a fresh and acceptable handbook, or in the event of close of business, to make an unbiased assessment of the salaries, gratuities, benefits and other payments due and payable to each claimant in accordance with the best international standards applicable to cement and/or chemical industries. (3) An order restraining victimization of the claimants, either by threat of termination of their appointment, demotion, reduction in salary, restraint in workplace, or in any other manner whatsoever pursuant to the exercise of their right under S.36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). (4) And for such further order or other orders as this Honourable court may deem fit to make in the circumstance. Accompanying the complaint is the statement of facts, witness statement of oath, documents to be relied on, Name of witness and an affidavit verifying facts. On the 16th April 2012 when this matter came up for hearing, the court suo moto raised the issue of jurisdiction and ordered the parties to address it. Directions as to filing of written addresses were given. The claimants written address is dated 19th April 2012 but filed on the 20th. The defendants is dated 4th May 2012 and filed same day. The claimants filed a reply on point of law dated 21st May 2012. In addressing the court, learned counsel to the claimants referred to section 48 of the Trade Disputes Act, CAP T8 LFN 2004 for the meaning of a Trade Dispute, and sections 254C (1), 254D (1) and 272 (1) of the 1999 Constitution and submitted that these sections confer ample jurisdiction on this court to entertain this suit which has to do with the conditions of service of the claimants. He submitted further that section 2 of the Trade Disputes Act which excludes jurisdiction of the courts in matters relating to trade disputes is null and void to the extent of its inconsistency with sections 254C (1), 254D (1) and 272 (1) of the constitution. He relied on section 1 (3) of the 1999 Constitution cited NURTW v Ogbodo v Ors [1998] 2 NWLR (Pt 537) 189 at 203, and Okara & Ors v Ndili [1989] 4 NWLR (Pt 118) 700 at 720. He also referred to section 254C (1) (b) and submitted that this court has been clothed with jurisdiction to entertain matters relating to, connected with or arising from the Trade Disputes Act and urged the court to assume jurisdiction. The defendant in its address raised two issues for determination as follows: 1. Whether the subject matter of this suit borders on a trade dispute. 2. If issue 1 is answered in the positive, whether the jurisdiction of this Honourable Court can be invoked at this stage. Learned counsel to the defendants submitted that the purport of the provision of section 48 (1) of the Trade Disputes Act CAP T8 LFN 2004, is that before a dispute would qualify as a trade dispute, it must be a dispute between a worker and worker, or a dispute between a worker and his trade union, or a dispute having some Industrial colorations citing Ekong v Oside [2005] 9 NWLR (Pt 929) 102, Apena v NUPP [2003] 8 NWLR (Pt 822) 426. He referred to the endorsements on the complaint and the statement of facts and submitted that the subject matter is a trade dispute between the workers and their employer which relates to their conditions of service. He urged the court to so hold. On issue 2, learned counsel stated that he is in agreement with the claimants that the 1999 Constitution as amended has conferred exclusive jurisdiction on the NICN in matters relating to or connected with Industrial and Labour related disputes and matters. He submitted that before the jurisdiction of this court can be invoked with regards to trade disputes matters, certain conditions precedents have to be satisfied referring to section 7 (3) of the NIC Act 2006 and section 1 (1) of the Trade Disputes Act. He submitted that Part 1 of the Trade Disputes Act has laid down the procedure parties shall follow in the determination of matters that border on Trade Dispute before the jurisdiction of this court can be invoked. He submitted that the processes are conciliation, mediation and arbitration. He submitted that they must first be exhausted before the jurisdiction of this court can be invoked. He cited NUHPSW v Palisco Nig. Ltd & Anor [2008] 12 N.L.L.R (Pt 32) 252, Asuzu & Anor v Ajewole & 7 ors [2009] 14 N.L.L.R. (Pt 39) 434, NUMW v REGAL Min. Ind. [2007] 7 NLLR (Pt 18) 270 and submitted that the court lacks jurisdiction to entertain this matter at this stage. He urged the court to strike it out as the case is prematurely before this court, the claimants not having complied with the condition precedent necessary to commence this suit citing Okafor v HASHIM [2007] 1 NWLR (Pt 693) 192, Oloriode v Oyebi [1984] 1 SCNLR 390, Okoye v Nigeria Construction & Furniture Coy. Ltd [1991] 6 NWLR (Pt 199) 501, Akinbinu v Oseni [1992] 1 NWLR (Pt 215) 97. Replying on point of law, learned counsel to the claimants submitted that section 254C (3) of the 1999 Constitution as amended, altered, and modified the cumbersome procedure of conciliation, mediation and arbitration processes in Part 1 of the Trade Disputes Act. He submitted that section 254C (1) does not contain any condition precedent which a litigant is compelled to satisfy before coming to the NIC for redress. He submitted that the following cases NUHPSW v Palisco Nig. Ltd and NUMV v Regal Min Industries supra cited by the defence counsel are no longer good authorities having regard to the exclusive jurisdiction conferred by section 254C (1) of the 1999 Constitution. That these authorities were decided on the section 7 (3) of the NIC Act 2006 and Part 1 of the Trade Disputes Act. It was his submission that the present dispensation only provides for conciliation at the Alternative Dispute Resolution Centre within the court after the court has assumed jurisdiction. He submitted that where any statutory provision is in conflict with the Constitution, the Constitution will prevail relying on section 1 (1) of the 1999 Constitution. He cited Onagoruwa v I.G.P [1991] 5 NWLR (Pt 193) 593 at 641, Oyawole v Shehu [1995] 8 NWLR (Pt 414) 484 at 493. It was his submission that section 1 (1) of the Trade Disputes Act and the whole of Part 1 of Trade Disputes Act which create an impediment to direct access to court is null and void to the extent of the inconsistency with section 254C (1) and (3) of the 1999 Constitution as amended. He cited the Iheanacho v INEC [2002] 11 NWLR (Pt 777) 223 at 309, Adisa v Oyinwola [2000] 10 NWLR (Pt 674) 116 at 193, Phoenix Motors Ltd v NPFMG (1993) 1 NWLR (Pt 272) 718 at 730, Hope Democratic Peter v Peter Obi [2012] 10 WRN 30 at 38, Raliatu Musa Aigoro v Commissioner Lands & Housing Kwara State [2012] 11 WRN 55 at 63. It was his submission that sections 7 (1) of NICA 2006, the processes of Part 1 of the Trade Disputes Act are inconsistent with section 254C (1) of the 1999 Constitution as amended and therefore null and void under section 1 (1) and (3) of the Constitution. He then urged the court to entertain this matter. I have carefully considered the processes filed, the submissions and authorities by counsel. Section 48 (1) of the Trade Disputes Act CAP T8 LFN 2004 defines a trade dispute to mean “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”. Section 54 of the NIC Act 2006 also defines a trade dispute to mean “any dispute between employers and employees, including disputes between their respective organisations 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 or variation of a collective agreement, and (d) an alleged dispute.” The subject matter of this suit is a trade dispute between the claimants who are the workers, the 1st defendant who is the employer and the 2nd defendant who is also a worker. It is in relation to the terms and conditions of the claimants employment. I find this matter to be a trade dispute and so hold. It is not in dispute that section 254C (1) (a) & (b) of the 1999 Constitution as amended has conferred exclusive jurisdiction in this court with regard to the Trade Disputes Act. It provides as follows: 254C (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other in civil causes and matters – (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith; (b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; The claimant has argued that section 7(1) of the NIC Act 2006 and Part 1 of the Trade Disputes Act are inconsistent with section 254C (1) of the 1999 Constitution as amended and therefore null and void to the extent of the inconsistency. A careful reading of section 254C (1) shows that it is not silent on the fact that other jurisdiction has been conferred on the court by an Act of the National Assembly. The other jurisdiction conferred on this Court by an Act of the National Assembly are the NIC Act 2006 and the Trade Disputes Act CAP T8 LFN 2004. Sections 7(1), (2) & (3) of the NIC Act 2006 confer exclusive jurisdiction in civil causes and matters relating to Labour, trade unions and industrial relations. Section 7 (3) provides that “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.” By this provision, the National Assembly has a discretion to prescribe the process of conciliation or arbitration. The Act of the National Assembly prescribing conciliation and arbitration before adjudication is the Trade Disputes Act which is saved by section 315 of the 1999 Constitution and so cannot be wished away as the claimants counsel seems to be suggesting. I hold that there is no inconsistency in the provisions of section 7 (1), (2) & (3) of the NIC Act, the dispute resolution processes of Part 1 of the Trade Disputes Act and sections 254C (1) and 254D (1) of the 1999 Constitution. The processes of Part 1 of the Trade Disputes Act which are mediation, conciliation and arbitration are compulsory except otherwise stated before one can access this court. The question is whether the claimants who do not belong to a trade union must comply with Part 1 of the Trade Disputes Act before accessing this court. By the Trade Disputes Act dispensation, individuals cannot access the dispute resolution processes of Part 1, only the trade unions can. The claimants do not belong to a union and have approached the court as individuals. To shut them out will be unjust. In the case of Godwin Tosanwumi v Gulf Agency & Shipping Nigeria Ltd unreported Suit No. NIC/18/2006 ruling delivered on 14th June 2007, this court held as follows: the fact is that given the Trade Disputes Act dispensation, individuals cannot access the dispute resolution processes of Part 1 of the Trade Disputes Act. To shut them out of this court would be manifestly unjust. We are, therefore, in agreement with the submissions of the claimant and the amicus curiae that individuals can access this court on matters within the purview of section 7 of the National Industrial Court Act. The claim before this court is one that falls within the subject matter of labour. The claimant is, therefore, right in approaching this court for the determination of the matter. Applying this reasoning to the instant case, I hold that the claimants can approach this court directly in its original jurisdiction without going through the processes of mediation, conciliation and arbitration. See Aloysius Odocha v Alan Dick & Company West Africa Ltd unreported Suit No. NIC/58/2007, ruling delivered in November 26, 2008. For all the reasons given above, this matter is not prematurely before this court. The matter shall accordingly proceed to hearing. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae