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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo President Hon. Justice B.B. Kanyip Judge Hon. Justice M.B. Dadda Judge DATE: 25TH NOVEMBER, 2008 SUIT NO. NIC/1/2005 BETWEEN Metal Product Senior Staff Association of Nigeria (MEPROSSAN) -- Applicant AND 1. Aluminum Smelter Company Nigeria Limited (ALSCON) 2. Russian Aluminum Rusal Respondents (ALSCON Chapter) 3. The Director-General, The Bureau of Public Enterprises REPRESENTATION Mr. A.A. Adewale for the applicant, Mrs. M. Bako for the respondents. RULING The applicant, by way of motion on notice dated and filed on 19th April 2007 brought pursuant to section 10, 12, and 36 of the National Industrial Court (NIC) Act 2006, is seeking for the following reliefs. 1. An order joining, RUSSIAN ALUMINUM, RUSAL, (ALSCON CHAPTER) Ikot Abasi, Akwa Ibom State, and the BUREAU OF PUBLIC ENTERPRISES (BPE) as necessary parties to the enforcement of the court judgment in suit NIC/1/2005 delivered on the 13th July, 2006. 2. An order for the enforcement of the court judgment in suit NIC/1/2005 delivered the 13th July, 2006 against all respondents in this suit in respect of the severance benefits of the applicant association. 3. AND FOR SUCH ORDER or further orders as the court may deem fit to make in the circumstances of this case. The motion is supported by a 14-paragraphed affidavit dated 19th April, 2007 and filed on the same date. The affidavit is sworn by Mrs. Chineye Udeh, a legal practitioner from the applicant’s counsel chambers. Attached to the affidavits are Exhibits ‘A’ – ‘E’. On the same date i.e. 19th April, 2007, the applicant filed a written address dated 19th April, 2007 in support of its motion for first, the joinder of the 211d and 3111 respondents and secondly, the enforcement of this court's judgment in Suit No NIC/l/200S delivered on 13lh July, 2006 against all three respondents. The 3rd respondent filed a counter-affidavit on 10lh May, 2007 made up of paragraphs (a) - (w) and dated same date, with Exhibits '1', '2', '2 (a)' - '(e)' attached. The applicant on 271h August, 2007 tiled a further and better affidavit, which is elated the same date, with Exhibit '7' attached thereto. Two counsels, Tobi Odusolu Esq. and Femi Alleh Esq. from the chambers or Peniel Solicitors and Advocates representing the respondents, filed two separate written addresses. That filed by Tobi Odusolu Esq, is dated 14th February 2008 and was filed on same date. That filed by Femi Atteh Esq. is dated 7th April, 2008 but was filed on gill April, 200i-). On realizing that they filed two written addresses, the respondents on 2nd September, 2008 orally prayed the court to withdraw the written address filed by Tobi Odusolu Esq. on 14th February, 2008. Mr. A. A. Adewale, counsel to the applicant, did not object and so the court granting the prayer struck out the written address. The applicant on 161h April 2008 tiled their reply address on points of law. The reply on points or law is elated same date. Thereafter, both counsel in the matter adopted their respective written brief of arguments. The written address of the applicant is divided into three parts: an introduction, a brief statement of the facts of the case and the arguments of the applicant regarding the matter at hand. The complaint of the applicant is that the 1st respondent did not comply with the said judgment of this court before purporting to hand over the management of the company to the 2nd respondent. That 1st respondent made no attempt to negotiate or dialogue with the applicant but rather chose "to send off some members of the applicant association paying them pittance under the expired Collective Agreement that was declared to have lapsed in the aforesaid judgment", That the 2nd respondent has now taken over the 1st respondent company and has assumed the full management of the said company but has shown no intention to negotiate a new collective agreement with the applicant. That the respondents have no intention of obeying the court order, hence the present application. To argue its case, the applicant stated that it is a fact that the 2nd and 3rd respondents were not original parties to this suit and so would not normally be bound by the outcome of the suit. But that by reason of the new acquisition and ownership of the 1st respondent company by the 2nd respondent, while the 3rd respondent supervised the whole transaction the 2nd and 3rd parties are persons who are affected by the outcome or this suit particularly the judgment: the 2nd respondent being the new owner of the 1st respondent by privatization and 3rd respondent being the regulator of the whole exercise. Furthermore that tile judgment cannot be effectively enforced in the absence of the 2nd and 3rd respondents given that they are persons "who under the rules, the court is entitled to join because they arc likely to be affected by the result of the action. This is a discretion of the court which it can exercise on its own motion or upon the application of either party Ayorinde v. Oni [2002] 2 SC 33 at 54). To the applicant, by the above dictum, even the court is entitled to join the 2nd and 3rd respondents as necessary parties, suo motu. Still on the issue of joinder, the applicant argued that it will amount to a multiplicity of actions if fresh proceedings have to be brought to join the 21ld and 3rd respondents. That the essence of this joinder is to bring in all the necessary parties into the suit and judgment to prevent multiplicity of action, referring to tile cases of Green v. Green [1981'] 2 N W I ,R (Pt. 61) 480, Peenola v. Hotel President Ltd [1982] 12 SC I and A C Fed v. AG Abia (NO}) 1[2001] 7 SC (Pt. 1) 32. The applicant then submitted that the 2nd and 3rd respondents are necessary parties to the enforcement of the said judgment even though they are not original parties to the suit. The applicant continued that by Exhibits 13, C and O, it in/armed the respondents or the fact of the subsisting judgment in this suit. To the applicant in paragraph 3.5 (erroneously typed as 6.5) of its written address, "it is instructive to note that the respondents were informed by registered post which by virtue of Rule 28 of the National Industrial Court Rules are deemed to have been delivered in the normal course of post- section 28 (2) of the National Industrial Court Rules. So there is a presumption here that the respondents are aware of the existence of the judgment, they are under a duty to obey the judgment Exhibit A. which presumption has not been rebutted". The applicant then submitted that the respondents being aware of the subsisting judgment but refusing to comply with it have shown clearly in the affidavit evidence that they have scant or no regard for the judgment. The applicant then urged the court to note that the subsisting judgment or this court is valid and presumed correct until it is set aside on appeal as held by the Supreme Court in Babatunde v. Olatunji [20021 SC 9 at 16 and 20 in the following words - The position therefore clearly is this: that a person who knows of a judgment, whether null or valid given against him by a court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment has been set aside ... a party who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. He should apply to the court to have it discharged and as long as it exists, it must not be disobeyed. The applicant then further referred the court to the cases or Rossek v. A en L 19931 ~ NWLR (Pt. 312) 382 and J C. v. Ezenwa [1996] 4 NWLR (Pt. 443) 371. The applicant continued that the point must also be made that section 10 of the NIC Act 2006 does not make any distinction between executory and declaratory judgments. That all the orders and the judgments of the court are enforceable without regard to the common law distinction aforesaid because the court judgment here flows from legislation under the principle of specialibus generalia non derogant, which means the general cannot derogate from the specific, referring to Schroeder v. Major [1989] 2 NWLR (Pt. 101). To the applicant then, it cannot be a defence available to the respondents that the judgment in question is declaratory, Furthermore, that the judgment in fact contains a definite order that the parties should immediately commence negotiations; as such the. judgment is in fact executory and not declaratory. To the applicant in paragraph 3.9 of its written address, "by not only ignoring the court's judgment in this case but going ahead to flagrantly to violate the same by sending away some members of the applicant's association on the expired collective Agreement, not entering into any negotiation with the remaining members of the applicant association on the terms of the expired collective agreement. All these acts constitute an affront to the dignity and majesty of the court - contempt of court and these acts the court bas the innate and inherent powers to punish", referring to Odu v. Jokoso [2005] ] - 4 SC 1\6 at 118 - 119, where the Supreme Court held that- By its nature punishment for contempt is the exercise of the powers of the court to punish an offender for an act that somehow affects the dignity of the court in the administration of justice, It is an inherent power in that it is innate to the court once it is established, Essentially, it is invoked by the court to protect its dignity and majesty so that its orders cannot be trivialized or treated with levity, That for the 1st and 2nd respondents to treat the judgment of this court with levity even when they became aware or it through Exhibits B, C and D and from the 3rd respondent as a statutory regulatory to fail to direct the 1st and 2nd respondents particularly the latter to promptly comply with the judgment particularly with reference to severance benefits for laid off workers, is nothing short of contempt, referring to Ebhodaghe v. Okoye [2004] 11 – 12 SC 24. The applicant also submitted that the court should make the necessary consequential order "one giving effect to a judgment or order or it is one directly traceable to or flows from that order or judgment duly prayed for", referring to Obayegbona v. Obaze [1970] 5 SC 247 and lnakoju v. Adeleke [2007]1 I SC (Pt. 1) 1 at 237/238, Finally, the applicant urged the court to order the respondents to settle the applicant's severance benefit in line with Exhibit E, the proposal for collective agreement dated 3)(1 December 2003 between the applicant and the 1st respondent which was signed by both parties, and which is deemed to have now been adopted by the 2nd respondent who has now acquired the assets and liabilities of the 1st respondent and ] III respondent as regulator should be ordered to enforce the said agreement. The respondents in opposing the applicant's motion submitted that the application is misconceived and seeks to confer on this court jurisdiction which it does not have, To the respondents, the application should be dismissed for the under mentioned reasons, First, that granting the application will amount to a denial of the 2nd and 3rd respondents’ right to fail hearing which is guaranteed in section 36 of the Constitution of the Federal Republic of Nigeria, 1999. To the respondents, as deposed to in paragraph V of the counter-affidavit and the applicant’s Ipsi dixit (their showing) in paragraph 3 and Exhibit ‘A’ attached to their affidavit in support of this application, the judgment of this court delivered on the 13th day of July, 2006 after a hearing on the merits was without the and 3rd respondents as parties. In other words the 2nd and 3rd respondents did not have the opportunity to contest the claims/liabilities that the applicant now seeks by this application to enforce on them. The respondents then submitted that the aforestated state of affairs is in clear breach of the 2nd and 3rd respondent's constitutional right to fair hearing, relying on the cases of Lexington international insurance Company Limited v. Sola Holdings Limited [20061 7 NWLR (Pt. 9XO) 465 at 475 - 47() and also Ashiru v. Ayoade [2006]6 NWLR (Pt. 976) 405. The respondents conceded that, as is evident in the records or the court, the counsel who was previously in charge of the conduct of this suit agreed to till; joinder or the 2nd and 3rd respondent; but that this does not vitiate the right of the 2nd and 3rd respondents to be heard on the merit before a judgment obtained without them as parties can be enforced on them. To the respondents an application from the addition of parties to a suit can only he made before judgment in a suit. We rely for the above Statement of the Law on the case of Kaduna Textiles Limited v. Obi [1991]110 NWLR (Pt. 621) 138 at 145 D - F per Omage, JCA. That this court, upon the delivery of its judgment on the merits on the 13lh day of July, 2006, became functus officio. In other words, that its jurisdiction on the matter came to an end. That an application seeking to add new parties is an invitation to - this court to assume jurisdiction which it does not have any longer. That the only orders this court can make, after the delivery of judgment, are ancillary orders, inclusive of an order to enforce its judgment. That the court does not have the jurisdiction to make an order adding new parties for the purpose of enforcing the judgment on the new parties, in this case the 2nd and 3rd respondents, relying on Kaduna Textiles Limited v. Obi supra, at 144 F – H and 145 D – E. the respondents then submitted that the 2nd and 3rd respondents herein cannot confer on the court jurisdiction which it does not have. In other words, that by conceding to their addition as parties after judgment, they have not altered the position or the law, which is that the Court is functus officio and cannot join them as parties nor order the enforcement of the judgment on them, a judgment they did not have the opportunity of contesting. As an alternative argument, the respondents contended that if the court is not minded to dismiss this application from the above stated reasons, that the court should dismiss the application because the judgment sought to be enforced by the applicants have been the subject or a compromise and variation by the applicant and the 1st respondent. That, as deposed to in paragraphs O, P, Q and T of the counter-affidavit and the attached Exhibits 2(a-e) members of the applicant have been duly paid and have collected their terminal benefits. They have duly certified in the aforesaid exhibits that these payments are in, “full and final" settlement or same. That the court will observe that Exhibits 2(a-e) herein were made by the 1st respondent and the members of the applicant after the judgment of this court on the 13th day of July, 2006. That the effect of the collection of the terminal benefits is that they have freely varied the terms of the judgment which they are entitled to do. 'That the contract of employment between the 1st respondent and the applicant has been validly and properly determined, referring to the case of Agoma v. Guinness (Nig.) Ltd [1995] 2 NWLR (Pt. 380) 672 at 689 G - G, That the filing of this application by the applicant is simply an attempt to overreach the 1st respondent by seeking the enforcement, of a judgment to negotiate a new collective agreement, when the underlying contract of employment has been properly and validly determined and the rights created by the judgment compromised by the applicant. The respondents continued that the 1st respondent is a limited liability company with a distinct legal personality from the 2nd and 3rd respondents. That it is evident from the affidavit in support Dr this application, that the applicant has a contractual relationship (contract of employment with only the 1st respondent; the 2nd and 3rd respondents are, therefore, not privy to the contract and cannot acquire rights nor incur liability for the contract, relying on the case of A-G Federation v. AIC Limited [2000] 6 SC (Pt. 1) 175 at I H3. That the 2nd and 3rd respondents herein are shareholders or trustees of a shareholder, that is, the Federal Government of Nigeria. That they are not, irrespective of the proportion of shares held in the 1st respondent company, the 1st respondent company. That they cannot be entitled to the rights of the 1st respondent nor be liable for the liabilities of the 1st respondent emanating from a contract of employment with the applicants, relying on N.I.D.B v. Fembo (Nig.) Limited [1997] 2 NWLR (Pt. 489) 543 at 547. The respondents then submitted that, having regard to the aforestated position of the law, a judgment obtained against the 1st respondent only cannot be enforced on the 2nd and/or 3rd respondent simply because they are shareholders of the 1st respondent. The respondents then prayed tile court to dismiss the application and to order exemplary cost against the applicant. In reacting on points of law, the applicant submitted that it is trite law that what is admitted need not be proved but is deemed to have been admitted. That the respondents admitted that while the 1st respondent was the original employer of the applicant, the 2nd respondent acquired the 1st respondent through competitive bidding during the privatization exercise conducted by the 3rd respondent who is charged with the statutory duty of privatizing public enterprises, referring to paragraphs. c, d, e, f, g, h, i, j, k, 1, m, n, o and p or the respondents' counter-affidavit, the admission on record of Mr. T. Audzenge former counsel to the respondents on 10th May 2007, and the admission in paragraph 2(4) of the respondents' address 7thApril 2008. Furthermore, the applicant submitted that the respondents arc bound by these admissions and cannot now resile from them and that the court is entitled to hold that the 2nd and 3rd respondents are bound by the judgment (Exhibit A), referring to Adewunrni v. Plastex Limited [1971] 2 NWLR (Pt. 32) 767, NNSC v. Sabana [1988] 2 NWLR. (Pt. 74) 73, M.GM v. NSP [1987] 2 NWLR (Pt. 55) 100 and Cappa & D' Alberto v. Akintilo [2003] 4 SC (Pt. 11) 1. The Applicant continued that the 2nd and 3rd respondent having acquired the 1st respondent, they inherit the assets and liabilities of the respondents, which include the judgment (Exhibit A), referring to intercontractol's v. NPFMB [1988] 2 NWLR (Pt. 76) 280 and Intercontractors v. UAC [198812 NWLR (Pt. 76) 303. To the applicant, the respondents have argued that since members of the applicant collected some money, they have compromised their rights. That the applicant had pointed to the circumstances under which its members were forced to accept the payment, referring to paragraphs 9 and 10 of the Further and Better Affidavit in Support of Motion date 27th August, 2007. But more importantly, that the judgment (Exhibit A) is a document which cannot be varied, altered, contradicted or added to under section 132 of the Evidence Act. That by ignoring the order of the judgment that a new collective agreement should be negotiated and severance benefits paid under the new collective agreement, the respondents were trying to be clever by half and thus alter the court's judgment contrary to section 132 of the Evidence Act, referring to The Honda Place Ltd v. Globe Motors Limited [2005]7 SC (Pt. HI) 183, Talahi v. Adseye [1973]1 8 - 9 SC (Reprint) 15 and Race Autosupply Co. Ltd. v. Akibu [2006] 6 SC 1. The applicant then urged the court to grant its prayers in the motion clated19th April 2007. After a careful consideration of the processes and submissions of counsel in this matter, we must remark on a thing or two. In the first place, there is a good of inelegance in the written briefs of especially the applicant. Aside from the poor paragraphing of the written address, passages in quotation marks as reproduced earlier in this ruling reveals the point we presently make. Secondly, there is a good deal of wrong assumptions in the processes and submissions of the applicant which yield to erroneous conclusions and so are capable of misleading the court. For instance, in paragraph 2.3 of its written address, the applicant asserted that its members that were sent off were paid "pittance under the expired collective agreement that was declared to have lapsed in the aforesaid judgment". At no time did we hold that the collective agreement had lapsed. We first held that the applicant was out of rime when it proposed a new collective agreement, the effect of which was that the old collective agreement was still in force. Then we went on to hold that the Industrial Arbitration Panel (l Al') was right to hole! that the old collective agreement was still in force. In holding that parties should commence the negotiation of a new collective agreement, we did not in any way rule that the old collective agreement had lapsed. The second remark relates to paragraph 3.11 of the applicant's written address where the applicant made the point that Exhibit E the proposal for collective agreement dated 3rd December, 2003 between the applicant and the 1st respondent was signed by both parties and so is deemed to have now been adopted by the 2nd respondent who has now acquired the assets and liabilities of the respondent, and the 3rd respondent as regulator. A look at Exhibit E shows that, contrary to what the applicant will have this court believe, only members of the applicant association signed the proposal. No where in that document did any representative of the respondents sign. For the applicant to say that the Exhibit E was signed by both the applicant and the 1st respondent and so the 2nd and 3rd respondents must be deemed to have adoptee it is not only unfortunate but has the capacity to mislead. The last remark is that at no point in the said judgment of this court was an order regarding severance benefit made. 'The only order made was that parties should commence the negotiation of a new collective agreement; and in doing that, parties are at liberty to negotiate terms and conditions of employment including severance benefits. Neither did the court order that 'severance benefits be Paid under the new collective agreement' as the applicant made out in paragraph 6 of its reply on points of law. These remarks made, we now turn to the rest of the issues raised in the submissions of the parties. The respondents had argued that this court has no jurisdiction over the matter given that the 2nd and 3rd respondents were not parties when the substantive matter was decided. As a statement of general principle, the respondents may be right. But as a statement of principle in the realm of labour/industrial relations, the respondents may not be right. In ASCSN v. INEC and 2 ors [2006] 5 NLLR (Pt. 11) 75, this court held that its decision can be enforced against an employer who was not even a party to a substantive action and the right to be heard would not have been infringed if the employer is a nominal party in terms or the issues canvassed during the hearing of the substantive matter. Tile same statement 01' principle was reiterated and applied by this court in ASCSN v. National Orientation Agency and ors unreported Suit No. NIC/9M/2003 delivered on September 27, 2007. This statement of principle was appealed against at the Court of Appeal. The Court of Appeal in Independent National Electoral Commission (INEC) v. Association of Senior Civil Servants of Nigeria and anor unreported Suit No. CAJAJL54/05 delivered on 19th November 2007 affirmed it describing it as impeccable with nothing upon which the Court of Appeal can pick a quarrel against. This statement of principle must, therefore, be read as a qualification of the general rule. We do not, therefore, agree with the respondents that the' judgment of this court sought to be enforced cannot be enforced against the respondents simply because the 2nd and 3rd respondents were not parties when the main action was decided. Having held that this court has jurisdiction over the matter, the next issue is whether to join the 2nd and 3rd respondents for the purpose of enforcing the judgment of this court. When the issue of joinder first arose, counsel who represented the respondents did not object to the joinder. Because of change in counsel, the present respondents’ counsel has raised the issue and so is objecting to the joinder. As we indicated, the fact that the 2nd and 3rd respondents were not parties when the main action was decided is not enough to say that the judgment in issue cannot be enforced against them. The processes show abundantly that the 2nd and 3rd respondents are central to the day to day management and operations of the 1st respondents should be joined in this action. We hereby formally rule that the 2nd and 3rd respondents be joined as such in this action. The critical issue, however, which the respondents captured in their alternative argument against this action, is the content of the judgment in issue and what is sought to be enforced. In other words, what was it that this court decided that enforcement is now being sought. We indicated earlier what this court did not hold in the judgment and for which the applicant made wrong assumptions. For the sake of clarity, we wish to reiterate that the only order this court made is that the parties should go and negotiate a new collective agreement. We upheld the IAP on the point that the old collective agreement still subsists given that the applicant was out of time in asking for the negotiation or a new collective agreement. So when the respondents made payments to members of the applicant association under the old collective agreement, they did nothing wrong. The applicant indicated that the respondents rebuffed all attempts to negotiate a new collective agreement, hence the present action. In this sense, the applicant is right to come to this court in enforcement. This court in the judgment in issue had ordered that parties should immediately commence the negotiation of a new collective agreement This was not done. We agree with the applicant that this is a slight on the authority of' the court We, however, are prepared to exercise restraint in meting out appropriate sanctions and give one more opportunity for parties to commence the negotiation of a new collective agreement. For the avoidance of doubt, the respondents are hereby ordered to immediately commence the negotiation of a new collective agreement with tile applicant association. …………………………………………………….. Hon. Justice B.A. Adejumo President …………………………………… ………………………………………… Hon. Justice B.B. Kanyip Hon. Justice M.B. Dadda Judge Judge