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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: June 4, 2012 SUIT NO. NICN/LA/240/2011 BETWEEN National Union of Hotels and Personal Services (NUHPSW) For and on behalf of the (NUHPSW Warri Branch NUHPSW Escravous/Swamp Branch - Claimant and NUHPSW Lagos Branch) AND Outsourcing Services Ltd - Defendant REPRESENTATION F. O. Yekovie, for the claimant. Bamidele Adeleye, with him are Tinuke Williams (Mrs) and Adenike Meadows (Miss), for the defendant. RULING The claimant filed a complaint against the defendant on 22nd December 2011 seeking the following: 1. An interpretation of the collective agreement dated June 2008 between the defendant and the claimant and/or the following branches of the claimant (NUHPSW) Warri Branch, NUHPSW Escravos/Swamp Branch and Lagos Branch respectively as to the existence of otherwise the rights of the claimant to claim and/or to demand from the defendant their leaving gratuity. 2. An interpretation of the collective agreement dated June 2008 between the defendant and the claimant and/or the following branches of the claimant (i.e. NUHPSW Warri Branch, NUHPSW Escravos/Swamp Branch and Lagos Branch) respectively as to the existence of otherwise the rights of the claimant to claim and/or to demand from the defendant their annual increment of 7.5% basic salary for the year 2011. 3. An interpretation of the collective agreement dated June 2008 between the defendant and the claimant and/or the following branches of the claimant (i.e. NUHPSW) Warri Branch, NUHPSW Escravos/Swamp Branch and Lagos Branch) respectively as to the existence of otherwise the rights of the claimant to claim and/or to demand from the defendant their over-time payment of N264.00 (Two Hundred and Sixty Four Naira) per hour for four (4) hours per day from 1st November 2002 till date. 4. An interpretation of the collective agreement dated June 2008 between the defendant and the claimant and/or the following branches of the claimant (i.e. NUHPSW Warri Branch, NUHPSW Escravos/Swamp Branch and Lagos Branch) respectively as to the existence of otherwise the rights of the claimant to negotiate with the defendant on behalf of such employees who are members of the claimant/union. 5. A declaration that the claimant and/or the following branches of the claimant (i.e. NUHPSW Warri Branch, NUHPSW Escravos/Swamp Branch and NUHPSW Lagos Branch) are entitled to the leaving gratuity as contained in the collective agreement between the defendant and the claimant and/or the following Branches of the claimants (i.e. NUHPSW Warri Branch, NUHPSW Escravos/Swamp Branch and NUHPSW Lagos Branch). 6. A declaration that the claimant and/or the following branches of the claimant (i.e. NUHPSW Warri Branch, NUHPSW Escravos/Swamp Branch and NUHPSW Lagos Branch) are entitled to the annual increment of 7.5% basic salary for the year 2011. As contained in the collective agreement between the defendant and the claimant. 7. A declaration that the claimant and/or the following branches of the claimant (i.e. NUHPSW Warri Branch, NUHPSW Escravos/Swamp Branch and NUHPSW Lagos Branch) are entitled to the over-time payment of N264.00 (Two Hundred and Sixty Four Naira) per hour for four (4) hours per day from 1st November 2002 till date. 8. A declaration setting aside the negotiation and the signing of the six (6) weeks pay in lieu of the leaving gratuity the defendant forced, mandated or threatened the claimant¡¦s members into signing. 9. An order mandating the defendant to pay the claimant and/or the following branches of the claimant (i.e. NUHPSW Warri Branch, NUHPSW Escravos/Swamp Branch and NUHPSW Lagos Branch) the leaving gratuity, the annual increment of 7.5% basic salary for the year 2011 and the over-time payment of N264.00 (Two Hundred and Sixty Four Naira) per hour for four (4) hours per day from 1st November 2002 till date. 10. An order mandating the defendant to raise bank draft when paying the leaving gratuity, the annual increment of 7.5% basic salary for the year 2011 and the over-time payment of N264.00 (Two Hundred and Sixty Four Naira) per hour for four (4) hours per day from 1st November 2002 till date for all the members of the claimant and/or the following branches of the claimant (i.e. NUHPSW Warri branch, NUHPSW Escravos/Swamp branch and Lagos branch) including the claimant¡¦s members the defendant forced in signing the six (6) weeks pay in lieu of the leaving gratuity. Accompanying the complaint is the statement of facts, list of witnesses to be called and the documents to be relied on at the trial. The defendant entered appearance and filed its statement of defence on 7th March 2012 and on 21st March 2012 it filed a notice of preliminary objection upon the following ground: This Honourable Court lacks jurisdiction to entertain this suit in view of non-compliance with the requirement stipulated in section 9 of the Trade Disputes Act LFN 2004 CAP T8. The preliminary objection is supported by a 12-paragraphed affidavit sworn to by Adenike Meadows, a solicitor. Accompanying the preliminary objection is a written address dated 21st March 2012. In reaction, the claimant filed an 11-paragraphed counter-affidavit sworn to by Mohammed Jimoh of counsel on April 5, 2012 and its written address dated 4th April 2012. The defendant filed a reply on points of law on the 18th April 2012. Both parties adopted their addresses at the hearing of the objection. Learned counsel to the defendant raised one issue for determination as follows: Whether this Honourable Court has jurisdiction to entertain and determine this suit having regard to the provisions of section 9(1) of the Trade Disputes Act LFN 2004 CAP T8. He referred to section 9(1) which provides that ¡§within fourteen days of the receipt by him of a report under section 6 of this Act, the Minister shall refer the dispute for settlement to the Industrial Arbitration Panel established under this section¡¨. He stated that a dispute was reported to the Minister of Labour as provided under section 6 of the Trade Disputes Act but that the Minister did not refer the matter to the Industrial Arbitration Panel upon receipt of the report. He submitted that this is a condition precedent before this court can assume jurisdiction. He submitted that under section 16 and section 17 of the Trade Disputes Act, this condition precedent will not apply; as the minister or any party to a collective agreement may bring an application to this court for interpretation of any term under section 16, while under section 17, the Minister may exercise his power of direct reference to the court. Counsel contended that this dispute has not been directly referred by the Minister to this court; and that the claimant has failed to bring an application for a decision of the court as to the interpretation of a term of the collective agreement. He argued that this action was instituted by a General Form of complaint seeking not only for an interpretation but also for declaratory, mandatory and other reliefs which should not be entertained by this court as this is not a matter referred by the Minister. He submitted that the condition precedent stipulated under section 9(1) of the TDA not having been met, the court is robbed of jurisdiction to entertain this matter, citing Madukolu v. Nkemdilim [1962] SCNLR 341, Suleman v. Air Gabon [2007] 7 NLLR 462 at 481, Nigerian Union of Mine Workers v. Regal Industries Ltd [2007] 7 NLLR (Pt. 18) 270 at 274 and NULGE v. LGSCAS [2007] 7 NLLR (Pt. 17) 132 at 152 and urged the court to strike out the suit. Counsel further cited Okolo v. Union Bank of Nigeria [2004] 1 SC (Pt. i) 1. Learned counsel to the claimant raised one issue for determination: Whether this Honourable Court has the jurisdiction to interpret collective agreement and make consequential order to give effect to the interpretation? He submitted that before a court can exercise jurisdiction, the case must come before the court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. He cited Madukolu v. Nkemdilim [1962] 2 SCNLR 341, Western Steel Works Ltd v. Iron and Steel Workers Union (incorrect citation), Alamieyeseigha v. Igoniwai (2) [2007] 7 NWLR (Pt. 1034) 524 at 542. He referred to sections 20(1) and 21(1) of the Trade Disputes Act and submitted that the subject matter for determination is the interpretation of a collective agreement and that the claimant does not need the approval of the Minister of Labour before it can approach the court to interpret the collective agreement relying on the provisions of section 16(1) and (2) of the Trade Disputes Act. He submitted that reliefs 5 ¡V 10 on the complaint are consequential reliefs which flow from the interpretation of the collective agreement between the parties and give life or effect to the judgment in the event that the claim succeeds. He referred to Oyekanmi v. NEPA [2000] 15 NWLR (Pt. 690) 414 at 444 and section 6(6)(a) of the 1999 Constitution. It was also his submission that the duty of the court is to ensure substantial justice for all citizens of Nigeria, citing Rt. Hon. Rotimi Ameachi v. INEC & 2 ors WRN Vol 10, 408 and that it is in the interest of ensuring substantial justice that the court should assume jurisdiction and make consequential orders. He urged the court to dismiss the objection with substantial costs. Replying on points of law, learned counsel to the defendant submitted that the interpretation jurisdiction cannot be used to adjudicate substantive trial issues, citing Benjamin Itodo & 68 ors v. Chevron [2005] 2 NLLR (Pt. 5) 200 at 222. He contended that the claimant¡¦s claims are substantive trial issues which will require the calling of evidence. He urged the court to strike out the suit as same was not initiated by due process of law and upon fulfillment of the conditions precedent to the exercise of jurisdiction by the court. Having carefully considered the processes filed, submissions made and authorities referred to, the issue to be resolved is whether the interpretation jurisdiction of this court can be activated by the claimant after the dispute has been reported to the Minister of Labour and while the dispute resolution processes contained in Part I of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 is ongoing. The defendant¡¦s position is that the trade dispute between the parties was reported to the Minister of Labour as provided in section 6 of the TDA but that the Minister has not referred the dispute to the Industrial Arbitration Panel and as such the condition precedent to the exercise of the Court¡¦s jurisdiction has not been met. The claimant¡¦s position is that this is an action for interpretation of a collective agreement and that it can access the court directly without the approval of the Minister. I must at this juncture comment on the references made to sections 20 and 21 of the Trade Disputes Act (TDA) CAP T8 LFN 2004 by the claimant¡¦s counsel. Part II of the Trade Disputes Act has been repealed by the National Industrial Court Act 2006 and so references to the repealed sections 20 and 21 in the written address is erroneous. The position of the law as provided in section 7(2)(a) and (b) of the TDA is that where the dispute remains unsettled, the Minister of Labour ¡§may proceed to exercise such of his powers under section 8, 9, 17 or 33 of this Act as may appear to him appropriate¡¨. In other words, the powers of the Minister are discretionary. He does not have to refer a dispute to the Industrial Arbitration Panel as submitted by the defendant¡¦s counsel if he does not think it is appropriate in a particular situation. It seems to me that the Minister did not think it appropriate to refer the dispute to the Industrial Arbitration Panel. The Minister in exercising his discretion in such a manner has acted in accordance with the provisions of section 7(2)(a) and (b) of the TDA and I so hold. The claimant¡¦s position is that this is an action for interpretation of a collective agreement and that it can come directly to this court without the approval of the Minister of Labour. Section 16(1) and (2) of the Trade Disputes Act provides as follows: (1) Notwithstanding anything in the foregoing provisions of this Act, the Minister or any party to a collective agreement may make an application to the National Industrial Court for a decision of that court as to the interpretation of any term or provision of the collective agreement. (2) On an application under this section the court shall decide the matter after hearing the Minister or, as the case may be, the parties to the collective agreement, or with the consent of the Minister or the parties, without hearing them; and the decision of the court shall be final and conclusive with respect to the interpretation of the term or provision of the collective agreement concerned. The word ¡§Notwithstanding¡¨ in section 16(1) has been interpreted by the courts to mean ¡§in spite of¡¨, ¡§irrespective of¡¨ or ¡§disregarding¡¨. See Olatunbosun v. NISER [1988] 3 NWLR (Pt. 80) 25 and Kotoye v. Saraki [1994] 7 NWLR (Pt. 357) 414. This means that in spite of an ongoing dispute resolution process provided in sections 1 to 15 of the TDA, the Minister of Labour or any of the parties to a collective agreement can still approach the court and activate its interpretation jurisdiction. I, therefore, hold that the court is not deprived of jurisdiction to entertain this matter. See NUCECFWW v. Benton Bau Co. Ltd [2008] 11 NWLR (Pt. 28) 1 and NUHPSW v. Palisco Nig Ltd [2008] 12 NLLR (Pt. 132) 252. The defendant submitted that the claimant failed to make an application to this court as provided in section 16 of the TDA but instead filed a complaint seeking not only interpretation but declaratory and mandatory reliefs. It was his contention that this action should not be entertained as the claimant is using the interpretation jurisdiction of the court to adjudicate substantive trial issues. Now, Order 3 Rule 1 of the Rules of this court 2007 provides that any action for determination by the court shall be commenced by way of complaint. The claimant in instituting this action by way of complaint complied with the provisions of the Rules. A careful look at the statement of facts does not show any triable issues. It simply sets out the facts which necessitate this interpretation. I hold that the interpretation jurisdiction of this court is not being used to adjudicate trial issues. A look at the reliefs sought in the complaint and statement of facts reveal that reliefs 1, 2, 3 and 4 are for interpretation of specific provisions of the collective agreement. Reliefs 5, 6, 7 and 8 are for declarations that the claimant¡¦s members are entitled to the provisions interpreted while reliefs 9 and 10 are orders mandating the defendant to pay the claimant¡¦s members. Section 254C (1) (j) (i) of the 1999 Constitution, as amended, has conferred this court with exclusive jurisdiction ¡§relating to the determination of any question as to the interpretation and application of any collective agreement.¡¨ The power of ¡§interpretation and application¡¨ of a collective agreement approximates to the power to declare as to the nature of rights, privileges and obligations existing under the collective agreement. Reliefs 5 to 10 are consequential reliefs that give effect to the provisions interpreted. Of what use is the power of interpreting these provisions if the court is silent as to the state or position of rights and obligations of the parties to the collective agreement? His Lordship Oputa, JSC in Western Steel Works v. Iron & Steel Workers ƒË1987ƒÍ 1 NWLR (Pt. 49) 284 at p. 303 stated that a ¡§declaratory judgment is merely a judicial statement confirming or denying a legal right of the applicant. A declaratory judgment merely declares and goes no further in providing a consequential relief to the applicant. While consequential relief may be joined, the court still has the power to issue a pure declaration without any coercive direction for its enforcement¡¨ (the emphasis is His Lordship¡¦s). And to the Court of Appeal in Bureau for Public Enterprises (BPE) v. National Union of Electricity Employees (NUEE) [2003] 13 NWLR (Pt. 837) 382, a declaratory judgment is just a pronouncement of the legal state of affairs. So when the NIC is called upon to interpret a document, what is meant is that it should state the nature of rights and obligations that flow there from. Section 14 of the NIC Act 2006 gives this court the power to grant all such remedies as any of the parties may be entitled to so that as far as possible, all matters in dispute may be finally determined and a multiplicity of actions avoided; and section 19 of the NIC Act 2006 gives specific powers to this Court to grant declaratory and injunctive orders, as the case may be. The claimant is well within its right to seek for reliefs 5 to 10. For all the reasons given above, I hold that this court has jurisdiction to entertain this matter. The preliminary objection lacks merit and is hereby dismissed. The matter is to proceed to hearing. Cost of N10,000.00 is to be paid to the claimant by the defendant. Ruling is entered accordingly. ¡K¡K¡K¡K¡K¡K¡K¡K..¡K¡K¡K¡K¡K¡K Hon. Justice O. A. Obaseki-Osaghae