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BETWEEN 1. Mr. Olabode Ogunyale 2. Mr. Thompson Olabode Raphael 3. Femi Ogboye 4. Tunde Ilesanmi 5. Amos Farotimi 6. Mufutau Olajide 7. Emman Hunde 8. Felix Alao 9. Kunle Kolawole 10. Donald Solanke 11. Philip Ikpeamanam 12. Felix Ajiduah 13. Adeleye Gbolahan 14. Mohammed Salisu 15. Joseph Ogunpekan 16. Rasheed Alaolu 17. Jide Abdulahi 18. Dada Banjo 19. Musa Olumide 20. Isamaila Ashafa 21. Adola Olukayode 22. Abiodun Fidipote 23. Tijani Tunbosun 24. Akin Akinyera 25. Nosiru Rasaki 26. Doyin Ajetunmobi 27. Akande Joshua 28. Gideon Akinde 29. Olukayode Hassan 30. Dele Olasebikan 31. Anthony Ugwu 32. Esan Gabriel 33. Kolawole Rotimi 34. Akinola Babatunde 35. Awe Emmanuel 36. Sunday Onyeje 37. Bola Akinbola 38. Ojomo A.Stephen 39. Akolade Michael 40. Justus Adebayo 41. Adamson Ismaila 42. Sikiru Olaifa 43. Zecheus Ogunbanjo 44. Segun Kolawole 45. Sikiru Agoluaje 46. Yusf Ayinla 47. Oluwadamilare Olaleye 48. Fidelix Akinmoladun 49. Adejuwon Adedire 50. Ayodele Yaya 51. Sebastian Ogaran 52. Olafemi Gbotifayo 53. Isah Shaibu 54. Femi Michael 55. Akinlabi Philip 56. Taiwo Bello 57. Ogini Moses 58. Okanlawon Olayiwola 59. Segun Balogun 60. Kehinde Adeeko 61. Tajudeen Lapanpa 62. Ogundimu Michael O. 63. Ojo Samuel 64. Yinka Obasoro 65. Matthew Ngaobiwu - Claimants/Respondents AND Globacom Nigeria Ltd. - Respondent/Applicant REPRESENTATION Fred Agbaje, with him is Kennedy Osunwa, for the claimants/respondents. Oluwarotimi O. Akeredolu Esq. SAN, with him are Akin Adesomoju Esq., Ademola Owolabi, and B. R. Omotosho, for the respondent/applicant RULING On the 25th of April 2008, the claimants/respondents filed their originating summons pursuant to Order 3 Rule 1 of the National Industrial Court (NIC) Rules 2007 in which they sought for the following relief and orders:- i. A DECLARATION that the claimants having been working for the respondent for the past five (5) years without employment/appointment letters is fraudulent and unlawful. ii. A DECLARATION that the claimants having been working for the respondents for the past five (5) years without leave, hospital, transport and housing allowances is unjust and unlawful iii. A DECLARATION that the claimants having been working for the respondent for over five (5) years deducting and with-holding various taxes from their salaries, WHT on Rent, (NSITE) National Insurance Fund, Payee Tax without remitting same to the appropriate Government Agencies and without confirming the claimants’ contract of employment is fraudulent and illegal. iv. A DECLARATION that the claimants having been working for the respondent company without a fixed closing time since employment up to date is an abuse of contract of employment with legal or statutory flavour and, therefore, illegal. v. A DECLARATION that the 10% (ten percent) gross deduction from the claimants’ monthly income by the respondent in the past three (3) years till date is illegal and unlawful vi. A DECLARATION that the claimants having been out-sourced to another company named Global Manpower Nig. Ltd without terminal benefits and other allowances is unjust and illegal vii. AN ORDER of this Court directing the respondent to pay in full all the total money deducted from the claimants’ salaries from 1st month of employment till date with interest at the current bank rate till judgment is delivered. viii. AN ORDER of this Court directing the respondent to pay the claimants all their benefits and other allowances before out-sourcing them to Global Manpower Nig. Ltd. ix. AN ORDER of this Court re-instating all the claimants terminated on the grounds of request for better condition of service. x. AN ORDER compelling the respondent to pay the claimants their various salaries from January 2008 till date. xi. AN ORDER of this Court directing the respondent company to confirm the claimants’ employment by entering into contract of employment governed by conditions of service thereof. xii. AN ORDER of this Court for the payment of N200,000,000.00 (Two Hundred Million Naira) as damages, for violation/infraction of the claimants’ legal rights. After receiving the court processes on the suit, the respondent/applicant reacted by way of a preliminary objection dated 12th June 2008. The preliminary objection was brought under section 7(1)(a)(i) of the National Industrial Court Act 2006 against the jurisdiction of the Court to entertain the matter. The particulars of the objection are: 1. The issue before the court, being a trade dispute, cannot be jointly maintained by the claimants in their individual capacities. 2. The issue is incompetent for misjoinder of claimants. 3. The condition precedent under the Trade Disputes Act was not fulfilled before activating the jurisdiction of the court. The respondent/applicant then urged the Court to strike out the matter or dismiss it or transfer it to the appropriate court for adjudication. Parties were then asked to submit written addresses, which they did. The brief facts of this case are that the respondent/applicant is a company engaged in the business of providing telecommunication services. The claimants/respondents were employees of the respondent/applicant who were employed at different times as drivers. In December 2007, the respondent/applicant re-organised its business to enable it focus on its core business, hence it informed its drivers, cleaners and other workers in the same category that it had outsourced their services to another company known as Global Manpower Limited and that they may apply to the new company, if they so wished. According to the respondent/applicant, the claimants/respondents accepted the policy and forwarded their applications to the new company. The claimants/respondents were offered employment at the new company. They accepted the offer and joined the company. The respondent/applicant stated further that the claimants/respondents worked in the company for four months before they instituted this action against the respondent/applicant. The respondent/applicant, therefore, urged the court to dismiss the matter. In the respondent/applicant’s opinion, the issues for determination in the preliminary objection are:- 1. Whether the claimants’ claims as presently constituted in the General Form of complaint and the Statement of Facts can come within the jurisdictional power of the Court as provided for under Part II, section 7(1) of the National Industrial Court Act 2006 being the statute setting up this Court and relevant provisions of the Trade Disputes Act. 2. Whether considering the facts of this case, this action is not liable to fail on the ground that the claimants cannot sue collectively for breach of contract of employment same being a common law relief. 3. Whether assuming but without conceding that the claimants’ action is within the Trade Disputes Act, this action is not likely to fail since the claimants have failed to fulfil certain conditions precedent before the invocation and exercise of this Court’s jurisdictional power under the Trade Disputes Act. On issue 1, that is, whether in view of the claims before the court, this court does not lack jurisdiction to determine the said claims, the respondent/applicant referred the court to Olutola v. University of Ilorin [2004] 18 NWLR (Pt. 905) 416 at 446, where the Supreme Court held that the issue of jurisdiction is very fundamental as it goes to the competence of the court. The respondent/applicant then submitted that the issue of jurisdiction is, therefore, germane and so the court should look at the claimants’ statement of fact and pleadings to determine the issue, referring the court to paragraph 389 of volume 3 of Sasegbon’s Laws of Nigeria. The respondent/applicant went on to summarize the claimants/respondents’ claims as follows:- 1. Payment of certain allowances that were unpaid while in the employment of the respondent/applicant. 2. Alleged non-remittance of certain statutory deductions from the claimants/respondents’ earning while they were in the respondent/applicant’s employment. 3. Damages for wrongful termination. The respondent/applicant submitted that none of these claims is within the jurisdiction of this court, referring the court to section 7(1)(a) of the National Industrial Court Act 2006 and Attorney General Oyo State v. NLC [2004] 1 NLLR 591 Ratios 1 and 2. The respondent/applicant then pointed out that the claimants/respondents’ employment with the respondent/applicant have been determined since February 2008 and that they are now in the employment of Global Manpower Limited, referring the court to paragraphs 9 and 13(a) – (c) of the claimants’ statement of fact and the counter-affidavit and exhibits attached thereto. That the matter is a simple case of determination of employment and payment of terminal benefits and damages and so has nothing to do with trade unions, trade relations, trade disputes or any of the jurisdiction conferred on this court, referring the court to the definition of a trade dispute under section 48 of the Trade Disputes Act. The respondent/applicant then submitted that the TDA contemplates disputes arising from a subsisting employment. That, since the claimants/respondents voluntarily resigned their appointment with the respondent/applicant, their claims raise no life issue but academic issues which this court is not competent to determine. The respondent/applicant then submitted that the claimants/respondents’ claim for damages acknowledges the fact that their employment have been effectively determined without prejudice to whether the determination was done justly or unjustly, citing Eze Kwere v. Golden Guinea Breweries Ltd. [2000] 8 NWLR (Pt. 670) 648, per Ikongbeh, JCA. The respondent/applicant went on to point out that in termination of appointment, even if it is challenged in court, it does not remove the import that the employer intends the appointment terminated. That an employee either by misapprehension or deliberate mischief cannot keep alive an employment relationship which has been terminated, citing Texaco (Nig) Plc v. Kehinde [2001] 6 NWLR (Pt. 708) 226 at 242. That what the claimants/respondents have in such an instance is the remedy in common law of master and servant relationship, referring to Jombo v. PEFMB [2005] 14 NWLR (Pt. 945) 447 Ratio 1. The respondent/applicant then urged the court to resolve this issue in its favour. On issue 2, i.e. whether the claimants can sue collectively, the respondent/applicant submitted that they cannot do that over breach of contract of employment. That the claimants/respondents were employed separately/individually and for different services. That the contract of employment is personal between each of the claimants and the applicant/respondent. The respondent/applicant then pointed out that the claimants were not in a union neither were they suing pursuant to a collective agreement, referring to Nicholas Bossa v. Julius Berger Plc [2005] 15 NWLR (Pt. 948) 409 Ratio 4. The respondent/applicant submitted that the employment between it and the claimants was done individually and so the claimants cannot sue collectively, referring to Ikpeazu v. ACB [1965] NMLR 574, Amacheree and ors v. Newington 14 WACA 97, CCB Nigeria Ltd v. Rose [1998] 4 NWLR (Pt. 544) 37 and Smurthwaite and ors v. Hannay (1894) AC 494 and urging the court to decline jurisdiction given that the claimants lack locus standi to approach the court. On issue 3, the respondent/applicant submitted that even if this Court overrules it and declares that the matter between the parties is a trade dispute, the court will still not have jurisdiction because the claimants have not complied with the provisions of sections 3 – 14 of the Trade Disputes Act before coming to the court, referring to Nigeria Union of Mine Workers v. Regal Mineral Ind. Ltd [1978 – 2006] Digest of Cases of the National Industrial Court at 252. The respondent/applicant then submitted that the condition precedent here was not followed. On what amounts to a condition precedent, the court was referred to Adeleke v. Osha [2006] 16 NWLR (Pt. 1006) 608, Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 at 661 Ratio 44 and NNPC v. Tijani [2006] 17 NWLR (Pt. 1007) 26 Ratio 9. They submitted that it is after complying with sections 3 – 14 of the Trade Disputes Act before the jurisdiction of this court can be activated, referring to Anuruba v. ECB Ltd [2005] 10 NWLR (Pt. 933) 321, Gbadamosi Lahan v. AG of Western Region [1963] 2 SCNR 47 and National Union of Hotels and Personal Services Workers v. NUPENG [1978 – 2006] Digest of Cases of the National Industrial Court at 382 Ratio 3. The applicant concluded by urging the court to dismiss or strike out the action because – 1. It is not a trade dispute hence the court has no jurisdiction. 2. The claimants/respondents cannot sue collectively when their rights are different and independent of one another. 3. The claimants/respondents failed to comply with statutory and fundamental conditions, which have robbed this Court of jurisdiction to determine this suit. The claimants/respondents filed a written address in reply to the respondent/applicant’s written address on the preliminary objection. The claimants/respondents postulated two issues for the determination of this court, namely – a. Whether or not section 7(3) of the National Industrial Court Act extends to all items on the exclusive jurisdiction of the National Industrial Court. b. Whether the claimants/respondents can maintain their action collectively or in a representative capacity or that their legal identity before the court is a question of misjoinder of party. Arguing their position, the claimants/respondents pointed out that their action stems from breach of contract between the respondent/applicant and the claimants/respondents, which makes the respondent/applicant’s action unlawful and unholy having employed the claimants/respondents, issued them with the company’s identity card, paid them monthly salaries and deducted various taxes from their salaries without remitting same to the appropriate authorities. That all of this goes to show that the claimants and the respondent/applicant had a contract by their various acts and conduct, referring to Orient Bank (Nig) Plc v. Bilante International Ltd [1997] 8 NWLR (Pt. 515) 37 at 41 and Societal Generale Bank Nig Ltd v. Safa Steel Chemicals Manufacturing Ltd [1998] 5 NWLR (Pt. 548) 168. They pointed out that the claimants/respondents worked for the respondent/applicant for many years without benefit or specific performance; instead they were outsourced to Global Manpower limited. That this is unlawful and it amounts to corporate fraud which derogates the concept of a worker. They referred to Phoenix Motor Ltd v. NPFMB [1995] 1 NWLR (Pt. 272) 718 where the Court of Appeal defined the term “worker”. The claimants/respondents pointed out that section 7(3) of the National Industrial court Act 2006 provides that matters under section 7(1)(a) of the NIC Act must go through conciliation or arbitration before coming to this Court. They submitted that, however, the omnibus section 7(1) of the National Industrial Court Act confers exclusive jurisdiction on civil causes and matters which include breach of contract. They stated further that this is outside the purview of section 7(1)(a)(i) and (ii) of the National Industrial Court Act. They submitted that whatever falls under the exclusive jurisdiction of the National Industrial Court in section 7(1)(a) of the National Industrial Court Act, cannot be subjected to other forum in line with the exercise of exclusive jurisdiction in the omnibus section 7(1) of the National Industrial Court Act. Otherwise, the intention of the lawmakers in making the court’s jurisdiction exclusive will be defeated. The claimants/respondents then submitted that the word ‘may’ used in section 7(3) of the National Industrial Court Act is futuristic and that it lacks a compelling status or standing. They emphasised that the word does not confer any mandatory obligation or status, referring to Mobil v. FBIR [1977] 3 SC at 53 and Bucknor Maclean v. Inlarks Ltd [1980] 8 – 11 SC 1. They then submitted that the exclusive power of the court in such matters in section 7(1) and (2) of the National Industrial Court Act will be defeated if conciliators or arbitrators are allowed to share that with the court. They opined that where the exclusivity of this court is tied to conciliation or arbitration, it shall make a mockery of the mischief that the legislators intended to have corrected by enacting the National Industrial Court Act 2006. The claimants/respondents went on to submit that there is nothing in the Trade Disputes Act to make it superior to the National Industrial Court Act. They suggested that the Trade Disputes Act must be read in such a way or construed with necessary modifications to bring it into conformity with the National Industrial Court Act. They submitted that the National Industrial Court Act 2006 is superior to the Trade Disputes Act because the National Industrial Court is a court of superior record. They opined that it is, therefore, illegal, against elementary rules of interpretation and a violation of the principle of separation of power for a matter under the exclusive jurisdiction of this court to be tied to conciliation and arbitration. The claimants/respondents then asked a question that if the above is allowed, then when does the exclusive jurisdiction of the court come. They submitted that even the Supreme Court of Nigeria has its own exclusive jurisdiction where certain matters are handled by it as a court of first instance, referring to section 232(1) and (2) of the 1999 Constitution. They submitted that the word ‘exclusive’ as used in section 7(1) of the National Industrial Court Act and section 232 of 1999 Constitution means without any appendage or ridiculous pre-conditions, referring to AG Federation v. AG Abia State [2001] 40 WRN 1 and AG Ondo State v. AG Federation [1983] NSCC 512. The claimants/respondents went on to submit that the requirement of conciliation and arbitration would defeat the intendment of section 7(1) of the National Industrial Court Act 2006. They further submitted that section 7(3) of the National Industrial Court Act is restricted to section 7(1)(a). That section 7(1)(a) is outside the purview of specific performance of a simple contractual obligation which the claimants/respondents are asking for. They then pointed out that their entitlements for work done for the respondent/applicant before they were outsourced is still outstanding, referring to Ogunmade v. Fadayiro [1972] 8 – 9 SC 1 and Nabhan v. Nabhan [1967] All NLR 47. They concluded by submitting that this Court has jurisdiction to entertain this matter. On the claimants’ issue 2, i.e. whether the claimants can sue collectively, they submitted that all the claimants/respondents are interested parties in the subject matter of this suit; therefore they can sue collectively as individuals, referring to Okoli v. Awulor [1977] 1 NWLR (Pt. 479) 48, Agana II v. Awulor [1977] 9 NWLR (Pt. 552) 668 and Eco Bank (Nig) Plc v. Gateway Hotels (Nig) Ltd [1999] 11 NWLR (Pt. 627) 397. They submitted that in Eco Bank’s case, the court held inter alia that – for a person or persons to be joined or made a party in an action, it must be shown that the person is entitled to some share or interest in the subject matter of the suit or lays claim to such share or interest or is likely to be affected by the result of the action or is a necessary party or it is just convenient to join them. The claimants/respondents then submitted that they have a common interest, common grievance and that the relief claimed will be beneficial to all of them. That it is, therefore, convenient and just for all of them to sue collectively or in a representative capacity, referring to Idise v. Williams International Ltd [1995] 1 NWLR (Pt. 370) 142 and Adukwe v. Commissioner for Works, Enugu State [1997] 2 NWLR (Pt. 489) 588. They, therefore, urged the Court to dismiss the preliminary objection because it lacks merit and hold that it has jurisdiction to entertain the matter. Replying on points of law, the respondent/applicant submitted that the claimants/respondents are under serious misapprehension of the facts and law in this matter because the respondent/applicant is not denying the exclusive jurisdiction of the National Industrial Court on trade dispute or labour matters but that they maintained that the condition precedent to meet before that jurisdiction can be activated was not met. The respondent/applicant then submitted that the jurisdiction remains inchoate until all necessary steps to invoke same have been taken. The respondent/applicant also submitted that the issue of contract and worker raised by the claimants/respondents is not germane to the determination of the issues on jurisdiction, urging the court to discountenance it. The respondent/applicant went on to point out that in APC v. NDIC (NUB) Ltd [2006] 15 NWLR (Pt. 1002) 404 at 432, the Supreme Court held inter alia that a court is competent to handle a matter if – 1. It is properly constituted as regards members and qualifications of members; 2. The subject matter of the case is within its jurisdiction; and 3. The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of the jurisdiction. The respondent/applicant opined that under the 3rd holding above, if such action was initiated in contemptuous disregard to due process, the court should decline jurisdiction. The respondent/applicant then submitted that there is no conflict between the exclusive jurisdiction of the National Industrial Court on trade disputes and on the provisions of the Trade Disputes Act on such dispute. That the court should, therefore, disregard the arguments of the claimants/respondents on the superiority of the National Industrial Court Act over the Trade Disputes Act because the two Acts were enacted by the National Assembly. The respondent/applicant continued that the word “exclusive” in section 7(1) of the National Industrial Court Act is in respect of the fact whether same power could be shared with other Federal or State High Courts. The respondent/applicant went further to state that that word does not connote that the condition precedent should be ignored, pointing out that the intendment of the legislators in adding the conditions precedent in labour matters is to promote amicable settlement and it is also geared towards quick dispensation of justice. That it is, therefore, surprising, erroneous and mischievous to argue that since the National Industrial Court has exclusive jurisdiction on labour matters the condition precedent should be ignored. The respondent/applicant opined that such action will do grave damage to the legislative powers of parliament and that it will be a dangerous attempt by the court to cloth itself with legislative garb. On the word “may” used in section 7(3) of the National Industrial Court Act, the respondent/applicant submitted that that word relates to the National Assembly’s discretion to provide such condition precedent but that the fact that the Trade Disputes Act exists, which is also an act of the National Assembly, it means that the National Assembly has exercised that discretion through that Act, hence the condition precedent must be followed. They submitted that the discretion here is that of parliament to make a law and not whether such law if made should either be obeyed or ignored. The respondent/applicant further submitted that a statute may incorporate a provision of another statute. That in reading the statute, regard must be had to the other statute that is incorporated, referring to Texaco Panama Inc v. SPDC [2002] 5 NWLR (Pt. 759) 209 at 232. The respondent/applicant then urged the court to discountenance the meaning attached to the exclusive jurisdiction of the National Industrial Court by the claimants/respondents because it amounts to inviting the court to do judicial legislation, which is not allowed in law, referring to Tate Ind. Plc v. Devcom MB Ltd [2004] 17 NWLR (Pt. 901) 182. The respondent/applicant went on to point out that a careful perusal of the National Industrial Court Act would show that there is no provision therein where the Act makes itself superior to the Trade Disputes Act, referring to Thompson v. Goold [1910] AC 420 where it was held that a court should not read anything into an Act that is not there. The respondent/applicant then urged the court to discountenance the claimants/respondents’ entire address in their paragraph 3.5 because it is outside the issue before the court and hence unnecessary. That the Eco Bank’s case cited by the claimants/respondents is not applicable because the issue in that case was on joinder of persons while the case at hand is on whether persons employed under different contracts of services can sue together in the absence of being unionised or under collective agreement. Finally, the respondent/applicant submitted that parties cannot even on their own waive statutory provisions or by acquiescence confer non-existing jurisdiction on the court, urging the court to allow the preliminary objection and dismiss the suit because it lacks merit. We have carefully considered the issues raised in this preliminary objection, the submissions of counsel and the statutory and decided authorities cited in the arguments on record. The applicant is essentially praying the court to dismiss this matter on the basis of lack of jurisdiction. We must at once remark that contrary to the impression created by the respondent/applicant, the Trade Disputes Act is not restricted to only disputes arising from a subsisting employment. Disputes arising from non-employment or loss of employment are contemplated too. The definition of ‘trade dispute’ under section 47 of the Trade Disputes Act Cap. 432 LFN 1990 and section 54 of the NIC Act 2006 all include disputes connected with the non-employment of any person. This presupposes that the dispute contemplated is not restricted to only disputes arising from a subsisting employment but include disputes resulting from loss of employment; for to hold otherwise, would mean giving the employer the licence to do away with the services of an employee knowing that thereby the employee would have no access to this court for any remedy. Secondly, we note the line of reasoning of the claimants/respondents regarding section 7(3) of the NIC Act and the use of the word “may” in that subsection. The law firm of counsel to the claimants/respondents had in the cases of Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v. Union Bank of Nigeria Plc and ors unreported Suit No. NIC/12/2007 delivered on January 24, 2008 and Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v United Bank for Africa Plc and ors unreported Suit No. NIC/12/2007 delivered on January 24, 2008 made similar submissions, which this court rejected. We are surprised that counsel did not deem it fit to refer to these two ASSBIFI cases and distinguish same from the case at hand when proffering arguments on section 7(3) of the NIC Act. Furthermore, the claimants/respondents’ submission on the meaning of ‘exclusive jurisdiction’ in the opening paragraph of section 7(1) of the National Industrial Court Act 2008 does not take cognisance of the fact that the phrase must be read in conjunction with the provisions of section 7(1), (2) and (3) of the National Industrial Court Act to get its proper meaning. In that event, the phrase must be interpreted, as argued by the respondent/applicant, within the context of this court’s jurisdiction relative to courts with similar status. That phrase does not in any way take away the need for mediation, conciliation and arbitration if the National Assembly so desires as it has done under the Trade Disputes Act given the authority of section 7(3) of the NIC Act. The claimants/respondents’ submission that the word ‘may’ used in section 7(3) of the National Industrial Court Act is futuristic and so lacks a compelling status or standing, and that the word does not confer any mandatory obligation or status, is a misconception of the law. We agree with the respondent/applicant’s submission that that word relates to the National Assembly’s discretion to provide such condition precedent; and the fact that the Trade Dispute Act exists, which is also an Act of the National Assembly, means that the National Assembly has exercised that discretion through the Trade Disputes Act. The point to note about section 7(3) of the NIC Act is that the question is not whether the National Assembly has passed an Act since the passing of the NIC Act, but whether there exist an Act of the National Assembly in the statute books prescribing conciliation and arbitration before adjudication as regards the matters provided for those purposes. And the answer is yes. The existing law on the matter is the Trade Disputes Act Cap. 432 LFN 1990. The Trade Disputes Act is saved by section 315 of the 1999 Constitution and so cannot just be wished away. The point that must then be made is that section 7(3) of the NIC Act does not rule out existing laws. In fact, the whole structure of the NIC Act recognizes the applicability of the Trade Disputes Act; and this remains so despite the repeal of some sections of that law. The only caveat is that where there is a conflict between the two laws, by sections 53 and 54(4) of the NIC Act, the NIC Act prevails. The word “may” is used twice in section 7(3) of the NIC Act. The first “may” simply acknowledge the legislative competence and discretion of the National assembly to make laws in the first place, that being their exclusive preserve. The second “may” acknowledges that within the structure of the law made by the National Assembly calling for conciliation and arbitration before adjudication, it is perfectly within the competence and discretion of the National Assembly that the conciliation and arbitration provided for need not be compulsory. In other words, the Act of the National Assembly will have to be looked into to see if the National Assembly has made conciliation and arbitration compulsory. A look at the Trade Disputes Act reveals that they are compulsory. This is evident from section 1(1) of the Trade Disputes Act, which provides that “where a trade dispute exists or is apprehended, the provisions of this Part of this Act shall apply in relation to the dispute”. The provisions of Part I of the Trade Disputes Act, except otherwise stated, are, therefore, compulsory and must be adhered to. This means that the processes of mediation, conciliation and arbitration, if applicable, must be complied with before one can access this court. Be that as it may, regarding the preliminary objection at hand, we are of the view that the following issues need to be resolved: 1. Whether the claimants/respondents’ claims as presently constituted before the court in their statement of fact are covered by section 7 of the National Industrial Court Act. 2. Whether the claimants/respondents, not being a trade union, can access this court in their individual capacity and also do that collectively. 3. If the claimants/respondents’ claims are trade dispute issues, whether it is not premature for the claimants/respondents to activate the original jurisdiction of this court without first of all complying with Part I of the Trade Disputes Act. On the issue 1, i.e. whether the claimants/respondents’ claims are covered by section 7 of the National Industrial Court Act 2006, the summary of the claimants/respondents’ claims are for payment of salaries and allowances for work done for the respondent/applicant before they were outsourced. The claimants/respondents are also claiming refund of some money which the applicant deducted from their salaries wrongly; and they are claiming damages for the wrongful termination of their employment or reinstatement of their employment. For these claims to be actionable in this court they must be issues relating to labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour and matters incidental thereto. See section 7(1)(a))(i) and (ii) of the National Industrial Court Act 2006. Can the dispute between the parties as stated above be described as labour or trade dispute? Trade dispute is defined in section 54(1) of the National Industrial Court Act 2006 as follows: …any dispute between employers and employees, including disputes between their representative 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. Black’s Law Dictionary 8th Edition page 1530 defines trade dispute in labour law as: a dispute between an employer and employees over pay, working conditions or other employment related matters. On the definition of trade dispute, see also section 47(1) of the Trade Disputes Act and Management of Dangote Industries Ltd, Pasta Plant, Ebute Ikorodu Lagos v. National Union of Food Beverages & Tobacco Employees unreported suit No. NIC/2/2008, the judgment of which was delivered on 28th January, 2009. The respondent/applicant submitted that the claimants/respondents’ claims are belated; that they are not living but dead claims which are merely for academic exercise. In our view, contrary to the opinion of the respondent/applicant, the issues are live issues and arose while the claimants/respondents were still in the service and employment of the respondent/applicant. These claims, in our view, relate to the claimants/respondents’ employment; they relate to the terms of employment and conditions of work of the claimants/respondents. We, therefore, hold that the issues between the parties ordinarily qualify as trade or labour disputes and so are covered by section 7(1)(a) of the National Industrial Court Act 2006. On issue 2, that is, whether an individual can access this court as a party, the respondent/applicant vehemently opposed the idea and submitted that the claimants/respondents cannot, especially jointly; that the claimants/respondents are not a trade union. As stated above under the definition of a trade dispute, that dispute must be between employers and employees. It in essence means it could also be between an employer and his employee. Section 54(1) of the National Industrial Court Act 2006 defines an employee to mean: a person employed by another under oral or written contract of employment whether on a continuous, part-time or casual basis…. See also section 47(1) of the Trade Dispute Act and the Black’s Law Dictionary on this definition. Besides, section 54 of the National industrial Court Act defines a party to include “every person served with notice of or attending any proceedings who although not named on the record of the proceedings has the like interest in the subject matter of the proceedings as a person named on the record of proceedings”. It is our considered view that if the law recognised persons with an interest as parties even though not named on the process, then injustice will be done if such persons are not permitted to be parties in the case. We, therefore, hold that contrary to the submissions of the applicant, individuals can access this court for adjudication just like trade unions can. Closely connected with this is the question whether or not the respondents, not being a trade union, can sue collectively. The applicant submitted in the main that the respondents cannot because they are not a trade union neither are they representatives of a trade union. They stated that the issue between the parties is that of breach of contract and that contract of employment is personal to each of the claimants. As we have reasoned above, the issues between the parties are covered by the National Industrial Court Act. In Eco Bank (Nig) Plc v. Gateway Hotels (Nig) Ltd, supra, on the principle governing joinder of parties to an action, the Court of Appeal held that it must be shown that the person to be joined:- a. is entitled to some shares or interest in the subject matter, or b. lays claim to such share or interest, c. is likely to be affected by the result of the action, d. is a necessary party i.e. one whose joinder as a party is vital for the purposes of adjudicating effectually and completely upon the matter in dispute, and e. it is just and convenient to join them. From their claims enumerated above, the claimants/respondents’ interest is common and the same. In other words each of them is individually entitled to some share or interest in the claims. We concede to the fact each of them could bring this action against the applicant, but asking the sixty-five of them to institute their actions separately will be very tedious and cumbersome. In any event, the court has the power to consolidate cases where the cause of action is similar. We therefore hold that it is just and convenient for the court that the claimants/respondents jointly sue the respondent/applicant as they have done. On issue three, as to the matter being a trade dispute, that is, whether the respondent must comply with Part I of the Trade Disputes Act before accessing the jurisdiction of this court, by the Trade Disputes Act’s dispensation, individuals cannot access the dispute resolution processes of Part I of the Act. To shut them out of this court would be manifestly unjust. In Godwin Tosanwumi v. Gulf Agency & Shipping Nigeria Ltd. unreported Suit No NIC/18/2006, the ruling of which was delivered on 14th June, 2007, this Court was faced with the question whether or not an individual can approach this court given the existing laws including the National Industrial Court Act 2006. Counsel in the matter addressed the court on it and the court invited four other counsel as amicus curiae to address it on the said issue. The Court held that – the fact is that given the Trade Disputes Act dispensation, individuals cannot access the dispute resolution processes of Part I 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. The subject matter of the case before us is in pari materia with Godwin’s case cited above. These claimants/respondents’ claims are labour/trade disputes. This court had earlier held that it has jurisdiction to try such matters. We have not been shown any reason why we should depart from that position. We hereby hold that because the claimants/respondents as individuals cannot access the resolution processes in Part I of the Trade Disputes Act, they have access to the original jurisdiction of this court regarding their labour/trade dispute. In holding that the issues in dispute qualify as labour/trade dispute, the expectation is that, as argued by the respondent/applicant, the matter should then go through the processes of Part I of the Trade Disputes Act. This is not, however, necessarily the case in the instant case. In the case of Aloysius Odocha v. Alan Dick & Company (West Africa) Limited unreported Suit No. NIC/58/2007, the ruling of which was delivered on November 26, 2008, this court held as follows – On the right of individuals to come to this court with their grievances, we agree with the submissions of the claimants that the TDA processes have to do with workers who are under a union. This court has also held that individuals can access this court on matters within the purview of section 7 of the NIC Act. Since they are not under a union they cannot be given access under the TDA processes and so to shut them out of this court would be manifestly unjust. This statement of principle can be gleaned from this court’s decision in Chibuzor Nanwu and ors v. Willbros (Nig.) Ltd and ors unreported Suit No. NIC/16/2006 delivered on March 11, 2008, where it was held that – The argument of the claimants that the claimants are suing as individuals and so can come directly to this court is an afterthought as their processes are very clear as to the capacity in which they sued. In the first place, they are suing ‘for themselves and the entire members of…NUPENG Willbros branch’. Secondly, in paragraph 1 of the statement of claims, the claimants disclosed that they are the Chairman, Vice-Chairman and Treasurer respectively of NUPENG Willbros branch. So, the claimants are not before this court as individuals and so cannot benefit from the ruling of this court in Godwin Tosanwuni v. Gulf Agency and Shipping Nig. Ltd, supra, which decision permitted individuals to come directly to this court in matters within the jurisdiction of the court. In the twin cases of Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE) and ors v. FCDA and ors unreported Suit No. NIC/9/2005 delivered on January 23, 2007 and Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees (AUPCTRE) and ors v. FCDA and ors unreported Suit No. NIC/17/2006 delivered on May 23, 2007, this court declined original jurisdiction principally because the claimants, coming under their umbrella union, could access the dispute resolution processes of Part I of the TDA. On this basis, the cases are distinguishable from the present matter at hand. The claimants are, therefore, right in approaching this court for the determination of this matter. In the instant case, the claimants/respondents are not members of a union because the structure of trade unions under the Trade Unions Act Cap. 437 LFN 1990 does not accommodate them. No where in the Trade Unions Act is a union provided for workers in private companies providing telecommunications services such as the respondent/applicant in this matter. We recently noted this fact in the case of Precision, Electrical & Related Equipment Senior Staff Association (PERESSA) v. Senior Staff Association of Statutory Corporations and Government Owned Companies (SSACGOC) and ors unreported Suit No. NIC/25/2007 delivered on February 11, 2009 and held that for workers in private companies providing telecommunications services, there is at the moment no trade union statutorily provided to cater for them and so the Registrar of Trade Unions is at liberty to register a union covering those workers if there is an application to that effect. We are compelled to take judicial notice of this fact and so must hold that since the claimants/respondents in this matter are not statutorily covered by any union, the workers in that sector such as the claimants/respondents cannot be denied access to this court. For all the reasons given, we hereby hold that this court has the original jurisdiction to entertain this case. The respondent/applicant’s preliminary objection is hereby dismissed. We make no order as to cost. Ruling is entered accordingly. __________________________ Hon. Justice B. B. Kanyip Presiding Judge ______________________ ____________________________ Hon. Justice V. N. Okobi Hon. Justice F.I. Kola-Olalere Judge Judge __________________________ __________________________ Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge