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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice F. I. Kola-Olalere - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: June 20, 2012 SUIT NO. NIC/LA/25/2010 BETWEEN 1. Maritime Worker’s Union of Nigeria 2. Uzojie Ukamunna 3. Olurunfemi Iye 4. Patrice Akhigbe Oribabor 5. Mathais Okonkwo 6. Steve Osayede 7. Emmanuel Elemazu - Claimants 8. Jacob Ebogboni 9. Ruben Imeakor 10. Jimmy Effiong 11. Innocent Onuchukwu 12. Onyemachi Ikoro (For themselves and on behalf of the Maritime Workers Union of Nigeria) AND 1. Hon. Minister of Transport 2. Hon. Minister of Labour & Productivity 3. Hon. Attorney General & Minister of Justice 4. Onikolease Irabor 5. Anthony Nted Emmanuel - Defendants 6. Aham Ubani 7. Adeyanju Adewale 8. Ayo Balogun REPRESENTATION Pat Obuh (Miss) holding the brief of Peter Paul Nnorodi for Claimants. N.O. Anya for 1st Defendant. Nnanna .O. Ibom for 2nd Defendant. B.C. Anyanwu (Mrs) for 4th to 8th Defendants. RULING The claimants filed a complaint against the defendants claiming the following reliefs: 1. A declaration that by virtue of Rule 40 A & B of the Constitution of the 1st Applicants Maritime Workers Union of Nigeria (MWUN), only the Special Delegates Conference with majority votes can remove the 2nd – 12th Applicants as members of the National Executive Council of the 1st Applicant. 2. A declaration that the Honourable Minister of Transport’s purported dissolution of the Maritime Workers Union (MWUN) on 17th August 2000 was contrary to the constitution of the 1st Applicant Maritime Workers Union of Nigeria and therefore ultra-vires, null and void and of no effect whatsoever. 3. A declaration that the caretaker Committee appointed by the Minister of Transport, led by one Abel Ogbonna is ultra-vires, null and void, and of no effect whatsoever. 4. A declaration that the caretaker Committee led by one I. M. Takor appointed by the Nigeria Labour Congress vide NLC letter of 20th October 2000 to the Minister of Transport, is ultra-vires, illegal, null and void and of no effect whatsoever. 5. A declaration that the purported election of the 4th – 8th Defendants and others as officers and members of the National Executive Council of Maritime Workers Union is unconstitutional, null and void and of no effect whatsoever. 6. A declaration that that National Executive Council under the leadership of the 2nd Claimant is validly in charge of the Maritime Workers Union of Nigeria and should be given official recognition by all Government Agencies and all stake holders in the Maritime sector in Nigeria. 7. An order of Injunction restraining the 4th, 5th, 6th, 7th & 8th Defendants and others, by themselves, their servants, agents or privies or otherwise, however from parading themselves as Officers/Executives of the Maritime Workers Union of Nigeria and from interfering with and obstructing the discharge of the functions of the Executive Committee led by the 2nd Claimant. 8. An order directing the 4th, 5th, 6th, 7th & 8th Defendants and those purportedly elected into office with them from 31st March 2001, thereafter and to date to render the Account of the Union’s finances and assets, wherever it may be. Accompanying the complaint is the statement of facts, affidavit of verification, list of witnesses and documents to be relied on. In reaction, the 1st, 2nd, 4th to 8th defendants filed notices of preliminary objection to the suit. The 1st defendants preliminary objection is dated 7th February 2011 and filed same day it is challenging the competence of the suit, for being an abuse of the process of the court and for being statute barred thereby depriving the court of jurisdiction. The grounds upon which the application is brought are: (a) That the statement of facts of the claimants before the Honourable Court disclose an intra-union trade dispute as this Honourable Court as the court of first instance lacks the jurisdiction to hear it. (b) That the action is statute barred as the cause of action arose on 7th August, 2000 and it was commenced on 29th July, 2010 which offends section 2 of the Public Officers Protection Act P41 LFN 2004. Accompanying the objection is the 1st defendants written submission dated 7th February 2011. The claimants filed a written address dated 7th April 2011 in reaction and stated that they would be relying on the facts in the counter affidavit dated 22nd September 2010 sworn to by the 2nd claimant in opposition to 4th to 8th defendants application dated 22nd September 2010. The said application by the 4th to 8th defendants was withdrawn and struck out by order of court on 28th September 2011. There is no counter affidavit by the claimants to this objection. The 1st defendant filed a reply on points of law dated 13th May 2011. The claimants then filed a process termed “claimants reaction on points of law to 1st defendants reply on points of law”. The 2nd defendant’s preliminary objection is dated 7th October 2011 and is brought pursuant to Order 11 (1) of the NIC Rules 2007, Section 2 (1) of the Trade Disputes Act CAP T8 LFN 2004 and under the inherent jurisdiction of the court. It is praying that the suit be struck out and/or dismissed due to lack of jurisdiction. The grounds of the objection are: (a) Non-compliance with the Trade Disputes Act Cap T8 LFN 2004. (b) The plaintiff’s abandonment of his reliefs in the Statement of Facts. Accompanying the objection is a written address dated 7th October 2011. The claimants address in opposition is dated 27th December 2011 but filed on the 3rd February 2012. The 4th to 8th defendants preliminary objection is dated 11th November 2011 and filed same day. It is brought pursuant to Section 2 of the Public Officers Protection Act CAP P41, LFN 2004, Section 2 of the Trade Disputes (Amendment) Decree No. 47 of 1992, Section 14 (1), 15 (1), 19 (1), 20 (1), Section 24 of the Trade Disputes Act CAP 432 LFN 1990, Order 11 Rule 1 of the NIC Rules and the inherent jurisdiction of the court. It is seeking an order of court striking out this suit for want of jurisdiction. The grounds upon which the application is brought are: 1. The claimants action is an abuse of court process and the action is statute barred. 2. This Honourable court lacks the jurisdiction to entertain this suit as a court of first instance being an intra-union dispute. The claimants filed a written address in opposition dated 27th December 2011 but filed on the 3rd February 2012. The 4th to 8th defendants filed a written address dated 10th November 2011 but filed on the 11th November 2011. The objections were heard together. At the hearing, Miss Pat Obuh who was holding brief for the claimants counsel Peter Paul Nnorodi informed the court that she was not conversant with the case and so was not in a position to adopt the written addresses. As the claimants written addresses were before the court they were all deemed adopted by the court. Counsel to the 1st, 2nd and 4th to 8th defendants adopted their written addresses. A ground of objection common to each of the objectors is that the statement of facts discloses an intra-union dispute which this court lacks jurisdiction to entertain as a court of first instance. The 2nd defendant referred to Section 2 (1) of the Trade Disputes Act CAP T8, LFN 2004 and Section 1 (1) of the NIC Act 2006. The 4th to 8th defendants submitted that this being an intra union dispute, the processes of part 1 of Trade Disputes Act must be exhausted before the claimants can approach this court. The 1st defendant submitted that this court is incompetent to entertain this matter as the subject matter is not within its jurisdiction. The following cases were cited by counsel; Madukolu v Nkemdilim [1962] 1 ANLR 587, ASSBIFI v Union Bank (unreported) Suit No. NIC/11/2007 delivered on January 24, 2008, Performing Musicians Employers Association of Nigeria & 10 Ors v Femi Lasode & 4 Ors [1978 – 2006] DJNIC 530, NUHPSW v NUFBTE [1978 – 2006] 482 at 484, Daniel v Fadugba [1998] 13 NWLR (Pt 582) 482 at 496. A second ground of objection by both the 1st and 4th to 8th defendants is that the action is statute barred as the cause of action arose in 2000 and this suit was instituted in 2010 which offends section 2 of the Public Officers Protection Act CAP P41 LFN 2004. They argued that section 2 limits the period to file an action against a Public Officer to three months of the accrual of the cause of action. The 4th to 8th defendants submitted that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute and any action commenced after the prescribed period is statute barred. The 1st defendant submitted that when an action is statute barred, the claimants have lost their right to action, right of enforcement, right to judicial reliefs and have an empty course of action which no court will assist them to enforce. The following cases were cited Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 to 4, Osun State Government v Dabami (Nig) Ltd [2007] 9 NWLR (Pt 1038) 66 at 82, Ibrahim v J.S.C. [1988] 14 NWLR (Pt 584) 1 at 10, Sanni v Okene Government Traditional Council [2005] 14 NWLR (Pt 944) 60. They urged the court to strike out the suit for being statute barred. The 2nd defendant also objected to this suit on the grounds that the claimants failed to state the reliefs they are seeking in the statement of facts. He submitted that this is not a mere irregularity and ought to nullify the entire action in Limine because issues have not been joined between the parties. He submitted that if no relief is claimed in the statement of claim no issue is joined between the parties and if a relief is claimed in the complaint but not in the statement of facts, it is deemed to have been abandoned. He cited Otanioku v Mustapha [1977] 11-12. S.C. 9; Adewunmi v A.G. Ekiti State [2002] 93 LRCN 43 at 72, A.G Federation v A.G. Abia State [2002] 96 LRCN 559 at 664, Tella v Akere & Ors [1958] WRNLR 26. He urged the court to dismiss the suit because it is not a Father Christmas to grant a party a relief not sought for. Learned counsel to the claimants in reaction submitted that to determine whether a court has jurisdiction over any matter, the court must have recourse to the writ of summons and statement of claim citing Abdulhamid v Akar [2006] 13 NWLR (Pt 996) 127, Adelusola v Akinde [2004] 12 NWLR (Pt 887) 295, Cadbury Nig. Plc v FBIR [2010] 2 NWLR (Pt 1179) 561, Adeogun v Fashogbon [2008] 17 NWLR (Pt 1115) 149. He submitted the following issue for determination: Whether or not the National Industrial Court Act 2006 and the 3rd Amendment to the Constitution of the Federal Republic of Nigeria 1999 which confers the jurisdiction of the National Industrial Court (NIC) as a court of first instance are exhaustive in themselves. He referred to section 7 (1) of the NIC Act 2006 and submitted that the substantive matter of the claimants are covered by the provisions of the law and that the NIC Act 2006 is exhaustive and is not subject to any other Act or Law except the 1999 Constitution. He submitted that the Trade Disputes Act was not made pursuant to the NIC Act 2006 and that section 1 (1) and 12 (1) of the NIC Act cannot be interpreted in isolation of section 1 (3) and 12 (2). He argued that every court has its own rules which must be complied with citing Amaechi v INEC [2008] 5 NWLR (Pt 1080) 227 at 318, Broad Bank v Odjemu [2001] 7 NWLR (Pt 712) 479. He referred to Order 3 Rule 4 of the NIC Rules 2007. He submitted that the issues raised in the preliminary objection cannot be resolved without evidence being heard by the court or else it will amount to making a pronouncement on the substantive matter at the interlocutory stage. He cited Worth South Ltd v FGN [2002] NWLR (Pt 797) 639, PDP v Taiwo [2004] NWLR (Pt 876) 656, Elebanjo v Dawodu [2006] 15 NWLR (Pt 1001) 76 at 137. The claimants counsel submitted that this court being a court of record, can take up cases at first instance. That section 7, 11 & 12 of the NIC Act discloses the powers of the court. He submitted that all the cases cited by the 1st defendant were decided under the “Old Act” and that the 1st defendant is still governed by the “Old Testament in the erstwhile NIC Act which ceased from operation at the inception of the 2006 Act.” He submitted that “under the former Act, parties have to first of all give themselves up to arbitral panels after which such decisions reached may be taken to the NIC as an appellate court or court of second instance.” He submitted that this suit is not an intra-union dispute but one challenging the illegal act of the Minister of Transport in disbanding the said union and appointing his cronies as committee members into the said offices. On the objection raised that this action is statute barred, the claimants counsel contended that the primary objective of the courts is to do substantial justice and any technical impediment to the attainment of this should be discountenanced referring to CAC v Aiyedun [2005] 18 NWLR (Pt 957) 391, United Spinners (Nig) Ltd v Chartered Bank Ltd [2001] 14 NWLR (Pt 732) 195. He submitted that the defendants objection on this ground “are laced with technical flavor.” He submitted that a party must have locus standi to institute an action citing Foss v Harbottle (1843) 2 H.A.RE 461, Abraham Adesanya v President Federal Republic of Nigeria [1981] 2 NCLR 358. He said the claimants filed an action at the Federal High Court in September 2000 after the dissolution of the National Executive Council of the union by the 1st defendant and got an injunction against the defendants on the 24th September 2000 which still subsists to date. He stated that the defendants are all in contempt of court orders made on the 24th September 2010 and that the limitation of actions in the Public Officers Protection Act raised by the defendants is aimed at defeating the end of Justice which should be rejected by the court. He submitted that this suit would not have been instituted if the past orders of the courts were obeyed by the defendants. He cited Elf Marketing Ltd v J.L. Oyeneyin Ltd [1995] 7 NWLR (Pt 407) 371, Mobil v Hassan [1995] 8 NWLR (Pt 412) 129 SC, Benson Oduduru & Anor v NUHPSW (unreported) FCA/L/226/83). It was his submission that the Public Officers Protection Act is not absolute. That where there has been a continuance of damage, a fresh cause of action arises from time to time and that where the prescribed period is postponed due to an act which is unknown to the claimant, then time will not begin to run. He cited SPDCN Ltd v Amadi [2010] 13 NWLR (Pt 1210) 82 at 122, Aremo v Adekanye [2004] 13 NWLR (Pt 891) 572. Replying on points of law, learned counsel to the 1st defendant submitted that the cases cited by the claimants defeat their cause as they affirm 1st defendants position that this court as a court of first instance cannot hear this matter that the cases he cited and have not been appealed against. He submitted that in year 2000 when the claimants stated that they commenced an action in court, NIC Act 2006 did not exsist. The NIC Act in existence at that time made the court an appellate court or court of second instance. He submitted that this court is estopped from hearing this matter for lack of jurisdiction. It was his further submission that the objection to this suit for being statute barred is not a technical one as it substantially and fundamentally touches the life and existence of a right of action and cause of action. He submitted that there are laid down procedures for the enforcement of court orders. He urged the court to decline jurisdiction and dismiss the suit. We have carefully considered the processes filed, submissions made and authorities referred. We note that the claimants counsel filed a process with the heading “claimants reaction on Points of law to 1st defendants Reply of Points of law. “It is trite that the claimants have no further right of reply as the issues in the 1st defendants reply on point of law are not new issues but issues which arose from the claimants address. It is therefore discountenanced for purposes of this ruling. The sole issue for determination is whether this court has jurisdiction to entertain this matter. The law is settled that it is the claimants processes the court should examine to determine if it has jurisdiction. See A.G. Federation v Guardian Newspapers Ltd [1999] 9 NWLR (Pt 618) 187. In this instance, the court must examine the complaint and the statement of facts. The claims of the claimant have been reproduced above. The following paragraphs of the statement of claim 20, 24, 26, 27, 28, 29, 31, 36, 70, 71 & 72 are reproduced below: 20. The authorities that be, not being impressed by the voice of reason, zeal and patriotism exhibited by the Union and its offices did claim to have purportedly, unilaterally and unlawfully dissolved the National Executive Committee of the Union vide a press conference addressed by the then Honourable Minister of Transport Mr Ojo Madueke on the 17th of August 2000. 24. Following the said illegal dissolution and breach of the constitution of the Union, an illegal caretaker committee made up of dubious men of questionable character was illegally foisted on the Union and which decision was challenged at the Federal High Court in Suit No. FHC/L/CS/852/2000. 26. Following the above narrated scenario and the insistence of the 1st Defendant/Respondent to interfere in the affairs of the 1st Applicant, a trade dispute was declared by the said 1st Applicant vide its notification of Trade Disputes, INTER AND INTRA UNION DISPUTE, Reference: MWUN/IVD/5/07/01 dated 24th July 2001 addressed to the 2nd Respondent which is under Statutory duty vide Section 4 of the Trade Disputes Act Cap 432 Laws of the Federation. 27. Pursuant to the provisions of the Trade Dispute Act the 2nd Respondent is under obligation to take any of the following steps towards resolving the said dispute and which step include: (a) Appointing a Conciliator or (b) Referring the dispute or any matter relating thereto for settlement to the Industrial Arbitration Panel, or (c) Referring same to a Board or Inquiry or National Industrial Court. 28. To date the said 2nd Respondent has failed, declined refused and/or willfully neglected to take any of the above stated steps because of his invested interest. 29. The 2nd Respondent is therefore in dereliction of his statutory duties. 30. The Respondents have stopped nothing at frustration, molesting, harassing and intimidating the Applicants in the discharge of their duties which are aimed at enhancing maximum productivity in the national maritime industry in its contribution to a healthy national economy. 31. That the Union as a result of the unconstitutionalities foisted on it by the Respondent is presently in three factions. 36. That the failure and/or refusal of the 2nd Defendant/Respondent to take steps towards resolving the trade dispute has continued to encourage disharmony in the Maritime Industry with concommittal adverse effect on the nation’s economy. 70. That indeed counsel had advised the claimants to have take the matter to court by asking for an order of this Honourable Court, compelling and mandating the 2nd Defendant/Respondent to refer the trade dispute between the Applicants and the Respondents to the Industrial Arbitration Panel or National Industrial Court for determination, hence the institution of this suit. 71. That a writ of mandamus was filed on 7th of July 2008; praying the Federal High Court to refer the issues in dispute to the Industrial Arbitration Tribunal. 72. That the above suit: FHC/L/CS/724/08 suffered continuous adjournment owing to series of preliminary objections from the 2nd, 4th – 7th Respondents for a period of 2 years. The statement of facts filed by the claimants reveals that the cause of action arose in year 2000, that it is an intra union dispute, that the 1st claimant declared a trade dispute in July 2001 and reported same to the Minister of Labour. Paragraphs 37 to 69 of the statement of facts does not show a cause of action against the defendants but simply states the fact of criminal prosecution of the 2nd claimant and others. At the time the cause of action arose in 2000, the law in force was the Trade Unions Act (TDA) CAP 432 LFN 1990. The dispute resolution processes of Part I of the Trade Disputes Act which are mediation, conciliation and arbitration are compulsory except otherwise stated. It is the Minister of Labour who is empowered to refer a dispute to the National Industrial Court. The claimants cannot by pass the dispute resolution processes in Part I which they set in motion by reporting the dispute and now seek to approach the court directly in its original jurisdiction in respect of that same trade dispute. See NUHPSW v NUFBTE [1978 – 2006] DJNIC 482, ASSBIFI v Union Bank of Nigeria Plc (unreported) Suit No. NIC/11/2007 delivered on January 24, 2008. Even in the present dispensation, section 7 (3) of the NIC Act 2006 prescribes 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. This court is not a court of first instance in a trade dispute. We hold that the court lacks original jurisdiction to entertain this matter, being an intra union dispute. The processes of Part I of the Trade Disputes Act must be exhausted before the claimants can approach this court. The defendants have also objected to this suit on the grounds that it is statute barred not having been commenced within three months of the accrual of the cause of action as provided by section 3 of the Public Officers Protection Act CAP 41 LFN 2004. The section provides as follows: “Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act of law or any public duty or authority or in respect of any allegation neglect or default in the execution of any such Act, Law, duty or authority the following provisions shall have effect: (a) the action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.” From the averments in paragraph 20 of the statement of facts, the cause of action arose on the 17th August 2000. The claimants pleaded in paragraph 24 of the statement of facts and stated in their address that they instituted an action in the Federal High Court FHC/L/CS/852/2000 and obtained an order which they claim still subsists. The writ of summons and statement of claim is not before us to establish the claimant’s assertions that they filed a suit against the 1st, 2nd & 3rd defendants within 3 months. The present suit was filed on the 29th July 2010, a period of ten years after the accrual of the cause of action. We therefore hold that this action is caught by section 2 of the Public Officers Protection Act and is therefore statute barred and unmaintainable against the 1st, 2nd & 3rd defendants. The 2nd defendants raised the objection that the claimants failed to state the reliefs they are seeking in their statement of facts and therefore issues have not been joined between the parties. Having held above that this court lacks jurisdiction to entertain this matter at this stage and that it is statute barred against the 1st to 3rd defendants, this ground of objection becomes a non issue and is not relevant. For all the reasons given above, this action is hereby dismissed in its entirety. Ruling is entered accordingly. We make no order as to costs. ………………………………. Hon. Justice F. I. Kola-Olalere Presiding Judge ........….……………………………. ………………………….……… Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu-Fishim Judge Judge