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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 28, 2012 SUIT NO. NICN/LA/13/2012 BETWEEN Hydrodive Nigeria Limited. - Claimant AND Petroleum and Natural Gas Senior Staff Association of Nigeria. - Defendant REPRESENTATION Mr. D. E. Okwena for Claimant. Mr. Dele Ogunji for Respondent. RULING The claimant filed a complaint against the defendant on the 27th January 2012 claiming the following reliefs: 1. A declaration that the claimant has complied with the request of the defendant (as contained in its letter dated October 19 2011) on the formation of the branch of the union and has commenced the deduction of check off dues from it members of staff who are members of defendant’s union. 2. A declaration that the termination of the employments of Mr Kayode Afolayan, Mr Mayowa Omotosho, Mr Ayodele Ayorinde and Mr Timson Adebiyi (All former employees of the claimant) by the claimant is lawful and was effected in accordance with their respective contracts of employment. 3. An order of perpetual Injunction restraining the defendant, its executives, officials, officers and appointed representatives from contacting the claimant’s clients or making false representations and damaging statements in respect of the termination of the appointments of the afore-mentioned Managers. 4. An order of Perpetual Injunction restraining the defendants from disturbing or interfering with the business operations of the claimant and or picketing the business premises or workshop of the claimant in respect of the termination of the employment of the afore-mentioned Managers. 5. Legal Fees and Cost of this action. 6. Further or other reliefs the court may deem necessary to make in the circumstances. Accompanying the complaint is the statement of facts, copies of documents to be relied on at the trial and the name of the witness to be called. In reaction, the defendant filed a notice of preliminary objection on 13th March 2012 challenging the jurisdiction of the court to entertain the matter. The objection is brought pursuant to sections 7(1) & (3), 12(1), 14 & 36 of the National Industrial Court Act 2006, Orders 11 Rule 1 & 15 and Order 26 Rule 13 of the National Industrial Court Rules 2007, Part I of the Trade Disputes Act CAP T8 LFN 2004 and under the inherent jurisdiction of the court. It is praying for the following: 1. An order dismissing or striking out this suit for the reason that this Honourable Court lacks jurisdiction to hear or entertain the same. 2. And for such further or other orders as this Honourable court may deem fit to make in the circumstance. The grounds upon which the objection is predicated are: 1. That the subject matter of the action is a trade dispute. 2. That by virtue of the provisions of Part 1 of the Trade Disputes Act (“TDA”) Cap T8 Laws of the Federation of Nigeria (LFN) 2004, a trade dispute: (i) Shall not be commenced in a court of law (s.2 (1) TDA 2004. (ii) Shall follow the procedure stipulated under the provisions of sections 4, 6, 8, 9 or 17 of the TDA 2004. (iii) That the jurisdiction of this Honourable court to entertain this suit is contingent on the provisions of sections 4, 6, 8, 9, 10, 11, 12, 13 & 17 of the TDA 2004 as well as section 7(3) of the National Industrial Court Act, 2006. Accompanying the objection is a written address dated 12th March 2012. The claimant filed a written address in opposition to the objection dated 18th March 2012 but filed on the 11th May 2012. Counsel adopted their written addresses in support of their arguments. The defendant stated that it would adopt the statement of facts for the purpose only of arguing this objection. Learned counsel to the defendant raised one issue for determination as follows: Whether or not this Honourable court has jurisdiction to entertain this suit. He submitted that the court lacks the jurisdiction to entertain this suit. He cited the case of A.G. Oyo State v NLC [2004] NLLR (Pt 3) 616 and Oloba v Akereja [1988] 3 NWLR (Pt 84) 508 at 527 for the meaning of jurisdiction and how it is determined. Relying on the above mentioned cases, he submitted that the relevant provisions of the statute setting up this court must be examined to see the nature and scope of its jurisdiction and powers and whether or not the matter falls with or without its powers referring to Kalango v Dokubo [2004] 1 NLLR (Pt 197). He submitted that the jurisdiction of the court is both original and appellate under the provisions of the Trade Disputes Act (TDA) CAP T8 LFN 2004, National Industrial Court Act 2006 and the 1999 Constitution as amended. He submitted that the original jurisdiction of the court is provided for in sections 14,15,16 and 17 of the TDA, and section 7(1) of the NIC Act 2006; while the appellate jurisdiction is provided for in section 13(1) of the Trade Union Act CAP T14 LFN 2004 and section 7(3) (4) & (5) of the NIC Act 2006. He submitted that the action of the claimant is on the face of it a trade dispute. He referred to section 54(1) of the NIC Act 2006 for the meaning of a trade dispute and submitted that the action comes within the provisions of section 54(1) (a) & (d) of National Industrial Court Act 2006. He argued that the relevant question is whether the subject matter of this action comes within the original jurisdiction of this court. He referred to section 4, 5, 6, 9, 17 and 33 of the Trade Disputes Act which provides the procedure to be followed in the resolution of a trade dispute and submitted that the Minister of Labour has not been given an opportunity as required by law to exercise his discretion in the resolution of this dispute. He further submitted that Part I of the Trade Disputes Act prescribes the procedure to be followed before a matter as provided under section 7(1) (a) of the NIC Act comes before this court. He cited the case of Magaji v Matari [2005] 5 SC (incomplete citation) Madukolu v Nkemdilim [1962] 1 All NLR 537, Onyali v Okpala [2000] FWLR (Pt 3) 495 at 514 and submitted that the conditions precedent to the invocation of the jurisdiction of the court has not been fulfilled. It was his contention that the claimant must allow the statutory provisions in sections 8 to 13 of the Trade Disputes Act to run its due course before approaching this court. The defendants counsel also submitted that this action is an abuse of the process of court and of the procedure laid down by the law for settlement of trade disputes under the TDA and NIC Act. He submitted that there are sufficient facts ex-facie on the record establishing a want of competence or jurisdiction to make the court decline jurisdiction in the first instance citing Oloba v Akereja [1988] 3 NWLR (Pt 84) 508, A.G. Lagos State v A.G. Federation [2005] 18 NWLR (Pt 904) 1 SC, 89. He urged the court to uphold the submissions of the defendant that the court lacks jurisdiction to entertain this suit and to either dismiss or strike out the suit with substantial costs in favour of the defendant. Learned counsel to the claimant raised one issue for determination as follows: Whether or not the subject matter of this suit relates to a trade dispute. He submitted that to determine questions related to jurisdiction, it is trite that the court is only required to look at the writ of summons and statement of claim and that in this instance, the court is to look at the complaint. It was his submission that this court is conferred with original jurisdiction to adjudicate over the subject matter of the suit. He submitted that the jurisdictional powers of the court are derived from the provisions of section 254C (1) (a) of the 1999 Constitution as amended. He argued that the relief sought from the court relates to the right of an employer to hire and fire its employees and this cannot be classified as a trade dispute. That reliefs 3, 4, 5 are merely ancilliary to the main relief. He submitted that the court can hear ancilliary claims where it has jurisdiction to hear the main claim. He cited Alhaji Umaru Abba Tukur v Govt. of Gongola State [1989] 4 NWLR (Pt 117) 517 at 548; Alhaji Tukur v Govt of Taraba State & Others [1997] 6 NWLR (Pt 510) 549, Egbunu v BRTC [1997] 12 NWLR (Pt 531) 29 at 44. He then urged the court to dismiss the objection filed by the defendant. Having considered the processes, submissions and authorities referred to, the issue to be resolved is whether this court has original jurisdiction to entertain this matter. The law is settled that it is the claimants processes that the court should examine to determine if it has jurisdiction. In this regard, the court must examine the complaint and statement of facts. The claims of the claimant have been reproduced above. The following paragraphs of the statement of facts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 are reproduced below: 3. On the 19th of November 2011, the claimant received a letter dated the 19th of October 2011 which was sent by e-mail from the defendant informing it that a branch of the union had been formed by some members of staff of the claimant. The letter which was captioned “Birth of Pengassan in HydroDive Nigeria Limited” stated that the Senior Staff Members of the claimant have been organized into PENGASSAN. The defendant did not provide a list of staff who had joined the union as claimed. The claimant hereby stated that it shall rely on a print of the aforementioned e-mail and letter at the trial of this suit. 4. On the 8th of December 2011, the claimant received another e-mail from the defendant in which it stated again that some members of staff of the claimant had joined the union. A list of twenty five (25) members of staff of the claimant who had purportedly joined the union was attached to the letter. The list included four members of the staff who were Managers in the company and recognized as a projection of management within the organizational structure of the claimant company. The claimant hereby states that it shall rely on a print of the aforementioned e-mail and list at the trial of this suit. 5. Upon reviewing the provisions of the Trade Unions Act, CAP T14, Laws of the Federation of Nigeria, 2004, the claimant noted that the four Managers in question, were ineligible for membership of the trade union. 6. As a result of the foregoing, the claimant instructed its Solicitors, Messrs Owolabi & Oyefeso to write letters to the four Managers advising them of their ineligibility to join the union due to the apparent conflict of interest the membership of the union will occasion. The Managers in question were advised to withdraw their membership of the union immediately. The claimant shall rely on the acknowledgement copies of the letters at the trial of this suit. 7. On the 20th of December 2011, the four Managers sent different e-mails to the Human Resource Manager of the claimant in which they stated they had forwarded the claimant’s Solicitors letter to the defendant and that the defendant will respond on their behalf in due course. The claimant hereby states that it shall rely on print outs of the e-mails at the trial of this suit. 8. Thereafter, on the 20th of December 2011, the claimant received a letter from the defendant in which it alleged that the claimant was harassing and intimidating its members in violation of due process and extant Labor Laws. The claimant hereby states that it shall rely on a copy of the said letter at the trial of this suit. 9. On the 30th of December 2011, the claimant terminated the employment of the four managers, namely: Mr Mayowa Omotosho, Mr Ayodele Oludiran, Mr Kayode Afolayan and Mir Timson Adebiyi in accordance with their respective contracts of employment. The claimant hereby states that it shall rely on the termination of employments letters at the trial of this suit. 10. The claimant has since complied with the request of the defendant and commenced the deduction of check off dues from the emoluments of the members of staff who are members of the union with effect from December 2011. The claimant hereby states that it shall rely on correspondence exchanged with the defendant in this regard at the trial of this suit. 11. Surprisingly, on the 13th of January 2012, the management of Chevron Nigeria Limited which is a client of the claimant brought the attention of the claimant to a letter dated January 6 2012 which was authored by the defendant. The letter was captioned “Notice of Looming Industrial Crisis in HydroDive Nigeria Limited”. 12. The defendant contends in the aforementioned letter that the management of the claimant is trying to prevent the unionization of its members of staff. The claimant hereby states that it shall rely on a copy of the afore-mentioned letter at the trial of this suit. Now, section 48 of the Trade Dispute Act CAP T8 LFN 2004, defines 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”. Also, section 54 of the National Industrial Court Act 2006 provides as follows: “Trade dispute” means any dispute between employers and employees, including disputes between their respective organizations 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; Going by the definition and meaning of trade dispute in the above two provisions, it is clear that the statement of facts has revealed a trade dispute. Specifically, the dispute is the attempt by the defendant to organise the senior staff of the claimant. See A.G. of Oyo State v Nigeria Labour Congress Oyo State Chapter [2003] 8 NWLR (Pt 821) 1, National Union of Electricity Employees & Anor v B.P.E [2010] 7 NWLR (Pt 1194) 538. Part 1 of the Trade Disputes Act make provisions for the resolution of trade disputes in sections 4, 5, 6, 7, 8, 9 and 17 and sections 7(3) and 53(2) of the National Industrial Court Act 2006. This in effect means that the dispute resolution processes in part 1 of the Trade Disputes Act which are mediation, conciliation and arbitration are compulsory except otherwise stated. These processes must be exhausted before this court can be approached. Section 7(3) of the National Industrial Court Act provides “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”. Section 2(1) of the Trade Disputes Act provides that: “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 shall abate and be null and void”. The jurisdiction of this court in relation to trade disputes is therefore not original. It is an appellate or a referral jurisdiction. The dispute resolution mechanism provided in Part 1 of the Trade Dispute Act must be exhausted before the court can assume jurisdiction. See Mix & Bake Flour Mills Industries v NUFBTE [2004] 1 NLLR (Pt 2) 247, ASSBIFI v Union Bank of Nigeria [2004] 14 NLLR (Pt 37) pg 6. (unreported) Suit No. NIC/11/2007 delivered on January 24, 2008, Auwal Adamu & ors v Jala Ludeen & ors [2009] 14 NLLR, Pt 38, pg 215, NUPENG v Oil and Industrial Services Ltd (unreported) Suit No. NIC/LA/20/2009 delivered on April 21, 2010, Corporate Affairs Commission v Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees [2004] 1 NLLR (Pt 1) 1. I find that the claimant has not complied with the dispute resolution processes provided in Part 1 of the Trade Disputes Act. As this is not a court of first instance in a trade dispute, this action is premature and the court must decline jurisdiction to entertain it. I therefore hold that this court lacks jurisdiction to entertain this matter at this stage. For all the reasons given above, this action is struck out. Costs of N20,000 is to be paid to the defendant by the claimant. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae