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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip -Presiding Judge Hon. Justice V. N. Okob -Judge Hon. Justice F. I. Kola-Olalere -Judge Hon. Justice O. A. Obaseki-Osaghae -Judge Hon. Justice J. T. Agbadu-Fishim -Judge DATE: 2ND JULY, 2009 SUIT NO. NIC/39/2008 BETWEEN Hotel & Personal Services Senior Staff Association - Claimant AND 1. Ikeja Hotel Pic 2. Alexander Gassauer 3. Tunde Orungbeja 4. Madu Enuonye 5. State Security Service 6. Director of Immigration 7. Minister of Internal Affair - Respondents REPRESENTATION Niyi Akirmola, for the claimant P. O. Olalere, for the 1st - 4th respondents Counsel for the 5th, 6th and 7th respondents absent RULING By a complaint dated 19th June, 2008 and filed at the registry of this court on the same date, the claimant approached this court for the following reliefs against the respondents:- 1. A declaration that the acts of the respondents in refusing to pay tin check-off dues of its senior staff, who are members of the claimant to it and the dissolution of the executives of its local branch of Sheraton Lagos Hotel and the subsequent derecognition of the claimant at Sheraton Lagos Hotel amounts to interference in the affairs of the claimant, a breach of procedure agreement entered in into by the claimant and the "5th respondent", an unlawful and illegal act and a violation of the constitution of the claimant. 2. A declaration that the refusal of the 1st respondent to remit to the claimant the check-off dues withdrawn from the salary of its members within the 1st defendant employment between October 2004 till date is unconstitutional, unlawful, illegal and an act of disobedience to the labour law and the law of Nigeria. 3. A declaration that the arrest of the executive members of the local branch of the claimant at Sheraton Hotel by the State Security Service that is the 5th respondent herein on the complaint and instruction of the 1st, 2nd, 3rd and 4th respondents and the subsequent undertaking entered into at the office of the 5th respondent by the executive members of the claimant's local branch at Sheraton Lagos Hotel is illegal, unconstitutional, unlawful, null, void and of no effect. 4. A declaration that the purported dissolution of the executives of the claimant's local branch at Sheraton Lagos Hotel on the recommendation of the illegal undertaking made at the office of the5th respondent and subsequent derecognition of the claimant by the 1st respondent at Sheraton Lagos Hotel based on the letter written by the 3rd and 4th respondent is illegal, ineffective, unconstitutional, null, void and of no effect. 5. A declaration that the acts of depriving and denying the claimant its check-off dues from its members by the respondents from October 2004 till date is illegal, unconstitutional and unlawful and has caused it serious damages. 6. A declaration that the claimant is entitled to its check-off dues and salary differentials from the 1st respondent from October 2004 until it is paid with 21% interest on the said sum. 7. A declaration that the activities, actions and reactions of the 2nd respondent to the internal affairs of the claimant and laws of Nigeria are disgraceful, unacceptable and punishable with immediate order of deportation. 8. An order of court directing the 1st respondent to pay to the claimant its check-off dues and salary from October 2004 until it is paid and 21% interest rate on the said sum until it is paid. 9. An order of court setting aside the letter written by the 3ld and 4th respondents dated 7th January 2008 and the subsequent derecognition of the claimant by the 1st respondent who purportedly relied on the said letter same having been invalidly made. 10. An order of court setting aside the undertaking dated 3rd of March 2008 "allegation" entered into by the executives of the claimant at the office of the 5th respondent same having been obtained by force and under duress. 11. An order of court setting aside the alleged dissolution of the claimant's local branch executive at Sheraton Lagos Hotels; also is the derecognition order made by the 1st and 2nd respondents and a further order recognizing the claimant and its executives in the 1st defendant's employment. 12. An order of court directing the 6th and 7th respondents to revoke the stay and work permit of the 2nd respondent and deport him from Nigeria in the interest of public peace and National security. At the hearing of the suit, the court suo motu raised the issue of jurisdiction and asked parties to address it as to whether it has the jurisdiction to entertain this suit. The parties then agreed to file written addresses on the issue of jurisdiction. In the written address dated and filled on 22nd September 2008 on behalf of the 1st - 4th respondents, by their counsel, the following issues were raised for determination: - (i) Whether due process has been followed in presenting this matter before this court, (ii) Whether, if due process has not been followed, this court should not decline jurisdiction to entertain this dispute, (iii) Whether the 2nd, 3rd and 4th respondents are proper parties to this suit. (iv) Whether this court can exercise jurisdiction over the 5th, 6th and 7th respondents, (v) Whether even if this court can exercise jurisdiction over the 5th, 6th and 7th respondents, it can grant the 3rd, 10th, and 12th reliefs sought by the claimant. (vi) Whether relief 12 in the complaint is one for judicial review, (vii) "Whether relief No. 12 in the complaint is one of judicial review, the claimant's suit is not statute barred", (viii) Whether, when it is not statute-barred, the claimant is entitled to seek the said relief No. 12 in the complaint, (ix) Even if the claimant is entitled to the relief, whether such relief can be sought to compel deportation by this court. As to whether due process was followed before commencing the action before this court, learned counsel submitted that the court's record will show that this matter is not a referral from the Honourable Minister of Labour, but brought under the supposed original jurisdiction of this court. That this is contrary to sections 4-9 of the Trade Disputes Act (TDA). That the processes under Part I of the TDA, which are mandatory, have not been complied with by the claimant and so the claimant cannot at this stage activate the jurisdiction of this court; the provisions of sections 4 - 9 of the TDA being mandatory provisions allowing for exceptions only under sections 15, 16 and 17 of the TDA. That the jurisdiction of this court is essentially appellate; and the court only exercises original jurisdiction as provided in sections 15, 16 and 17 of the TDA. That the "National Industrial Court (NIC) Act 2006 did not in any way enlarge the original jurisdiction of this court. That in fact section 7(3) of the NIC Act 2006 makes sacrosanct and inviolable the provisions of sections 4, 5, 6, 7, 8 and 9 of the TDA, which provide that matters of labour disputes must go through the processes of mediation, conciliation and arbitration before they may be brought before this court. That nothing in section 7 of the NIC Act 2006 expressly confers on this court original jurisdiction over matters relating to "labour, including trade unions and industrial relations and environment and condition of work, health, safety and welfare of labour and matters incidental thereto"; but that the NIC Act 2006 essentially repeats the already existing law enacted as section 2 of the TDA which provision did not in anyway affect the inviolability of sections 3 - 9 of the TDA. That the NIC Act 2006 does not Intend to or in. fact, expand the original jurisdiction of the court to include matters 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. Also that the subject matter of this suit is essentially the alleged non-payment/non-remittal of check-off dues and sundry labour matters, all of which fall under the provisions of section 7(4) of the NICA 2006, which provides that "an appeal shall lie from the decisions of an arbitral tribunal to the court as of right in matters of disputes specified in subsection 1 (a) of this section". Learned Counsel on this ground urged the court to hold that this suit is premature having not been brought in accordance with the provisions of sections 4, 5, 6, 7, 8, and 9 of the TDA. On issue two, learned counsel anchored his submission on the decision in NUMW-v. Regal Mineral Industries [2007] 7 NLLR (Pt. 18) 270 where this court held that where facts of a case raise trial issues that should beadjudicated upon in accordance with the provisions of the Trade Disputes Act and a party fails to follow the prescribed due process of trade dispute resolution, the matter will be held to have been brought before the court prematurely thereby robbing the National Industrial Court of jurisdiction to entertain same. Learned counsel for the 1st - 4th respondents then urged the court to decline jurisdiction over the subject matter of this suit on the ground that it is premature having not been brought in accordance with the clear procedure for instituting such suits as stipulated under the Trade Disputes Act, and so the suit should be struck out with substantial cost. On the 3rd issue, learned counsel submitted that the suit as per Order 3 Rule 4 seeks to activate the civil jurisdiction of this court. That the relationship between the parties in this suit is contractual, that is, between the employer and the employee. Also, that by the claimant's own admission, in paras 1 and 4 of the statement of facts, "the parties to the contract of employment and or conditions of service are exhaustively, the claimant and the 1st respondent". Learned counsel continued that by the admission of the claimant in paragraph 3 of the statement of facts which is that the 2nd, 3rd and 4th respondents are the General Manager and employees of the 1st respondent, that the 2nd, 3r and 4th respondents, not being privy to the contract, cannot, by law, acquire any liabilities there from and accordingly cannot be sued for breach of a contract to which they are not a party to. Also, that the claimant has not shown any cause of action in the contract; and the claimant cannot also claim that their action is on tort as the reliefs sought are not formulated under, and so are unknown to, the law of tort and that there is in fact no claim for damages or other known remedies in tort. To counsel, the 1st respondent, as stated by the claimant, is a limited liability company and as such by law is an artificial legal entity. That, it is trite law that a company as an artificial legal entity is separate and distinct entirely from the members of the company or organs and officers of the said company such as in this case and so the acts of the company ordinarily would not bind its officers, referring to Olufosoye v. Fakorede 1 NWLR (Pt. 272) 764 paras P - H (incomplete citation as given by counsel) and Co-operative Bank v. Obokhare [1996] 8 NWLR (Pt. 468) 579. That the position of the law is not different even if the 2nd, 3rd and 4th respondents performed the acts complained of, or are in a position to carry outany obligation or order for the company wherein they are officers. Again on this point, the case of Co-operative Bank v. Obokhare, supra, was cited. Counsel also cited Agbomagbe Bank Ltd v. General Manager G. B. Olivant [1961] 1 All NLR 116; [1961] AMCR 125 where it was held that "no matter how obnoxious or reprehensive an employee's act or omission may be, the company, not its employees should be the object of a court action so long as the employee acts in the course of their employment". It was further submitted that at all times the principal of the 2nd, 3rd and 4th respondents was known to the claimant, and all the acts purportedly done by the 2nd, 3r and 4th respondents were done in the name of or on behalf of the 1st respondents to the knowledge of the claimant. Learned counsel submitted further that where the principal of an agent is known or disclosed the proper party to sue for anything done or omitted to be done by the agent is the principal, referring the court to Leventis Tech. Ltd v. Petro Jessica Ent. Ltd (Pt. 224) 459 at 468 (citation incomplete). Learned counsel then urged this court to hold that no cause of action has been disclosed against the 2nd, 3ld and 4th respondents and that they are improper parties on account of being General Managers and employees of a known principal; and further that the action against the 2nd, 3rd and 4th respondents also amounts to a misjoinder because the claimant has not disclosed any cause of action against the 2nd, 3ld and 4th respondents, they being merely employees of the 1st respondent and acting in the normal cause of their employment, citing Ogbedo v. 1NEC [2005] 15 NWLR (Pt. 948) 376 at 399 para H. Learned counsel further submitted that the only way the court can hold to the contrary is for the claimant to specifically prove that the General Managers and employees were not in fact acting in the course of their employment. But that in this suit this court cannot so hold as the claimant has not even made any such averment and so in the absence of such averment of fact, the claimant is estopped from producing evidence, and in the absence of evidence there can be no proof. And in the absence of proof, the court must hold that the 2nd, 3rd and 4th respondents are not proper parties to the suit and accordingly strike out their names, referring to UKU & ors v. Okumagba & ors [1974] 3 SC 24 at 42 where the Supreme Court held that - The court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as to the court or judge may seem just order that the name of my parties improperly joined, whether plaintiff of defendants, be struck out..,. On the 4th issue, which is whether this court can exercise jurisdiction over the 5th, 6th and 7th respondents, counsel for the lst - 4th respondents submitted that the law on this is provided in section 251(i)(p) of the 1999 Constitution by virtue of which this court cannot exercise jurisdiction over the Federal Government or any of its agencies. That it is the Federal High Court that has exclusive jurisdiction over the Federal Government and or its agencies, referring to Oloruntoba-Oju v. Dopamu (citation not supplied), NEPA v. Edegbero [2002] 18 NWLR (Pt. 798) 79 and Ministry of Internal Affairs v. Aliyu [2005] 3 NWLR (Pt. 911) 152. That the 5lh respondent is a Federal Government agency having been created as a body under and or of the National Security Council. Also that the 6th respondents is an office in the Ministry of Interior which is in itself part of the executive arm of the Federal Government. That the 7th respondents is the Ministry of Internal Affairs, which is now defunct and in its stead the Federal Government has created a Ministry of Interior. That the 7th respondent being defunct and, therefore, non-existent, this Court cannot exercise or purport to exercise jurisdiction over it. And that even if the 7th respondent is not defunct and still exist by law, it will be caught by the definition of the Federal Government and/or its agencies, and so this court would indeed have no jurisdiction over it. This court was, therefore, urged to decline jurisdiction against the 5th, 6lh, and 7th respondents. On the 5th issue, the 1st - 4th defendants' counsel submitted that even if this court is inclined to hold that it has jurisdiction over the 5th, 6th and 7th respondents, which is unlikely, reliefs 3, 10 and 12 in the complaint are beyond this court's jurisdiction to grant. Accordingly learned counsel submitted as follows:- (i) That by virtue of section 251(l)(r) of the 1999 Constitution, this court has no jurisdiction over any action or proceedings for a declaration affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. (ii) That reliefs 3 and 10 in the complaint seek this court's jurisdiction over purported acts or actions of the 5th respondent and accordingly this court by virtue of section 251(l)(p) of the 1999 Constitution has no jurisdiction over them. (hi) That by virtue of section 251(l)(p) of the 1999 Constitution, this court has no jurisdiction to grant an order or compel the 5th 6th and 7th respondents to do any act as regards the matters of "citizenship, naturalization and aliens deportation of persons who are not citizens of Nigeria, extraditions, immigration into and immigration from Nigeria". On the 6th issue, learned counsel pointed out that relief 12 is a relief urging this court to direct the 6th and 7th respondents (Director of Immigration and Minister of Internal Affairs) respectively to take steps in their official capacities against the 2nd respondent. Learned counsel then submitted that the only part of our jurisprudence that allows the court to make such orders falls under the law of judicial review; that is, the court's power to grant prerogative orders, that is, order of mandamus, certiorari or prohibition and the writ of habeas corpus. That the only prerogative order contemplated by and under which relief 12 falls, is an order of mandamus. That an order of mandamus" has been defined by the Court of Appeal in Central Bank of Nigeria v. Systems Application. Products Nig. Ltd [2005] 3 NWLR (Pt. 911) 152 at 180 -181 as- a public law remedy directed against officers in their capacity as such or against public bodies. It aims at compelling the performance of a public duty in which the person applying for it has sufficient legal interest. Counsel then submitted that relief 12 in the complaint is one for an order for mandamus and urged this Court to so hold. On issue 7, learned counsel submitted that the relief of mandamus is only available as prescribed by common law or by statute. That the proceedings for mandamus are "a civil proceedings commenced in a manner as may be prescribed by the rules of court", referring the court to Ikemefuna v. Nweke [1990] NWLR (Pt. 150) 255 at 259. Counsel further submitted that the court's powers of mandamus are provided in section 17 of the NIC Act 2006 and Order 22 of the NIC Rules 2007. That Order 22 Rule 3(1) of the said rules provides that "Application for judicial review shall be brought within 3 months of the date of the occurrence ,of the subject of the application and no leave shall be required for that purpose". Counsel further pointed out that the processes before this court were filed on the 19lh of June 2008 and accordingly the act for which the claimant seeks, judicial review ought not to have occurred earlier than the 19l of March 2008. That the purported act of the 2lul respondent as per the claimant's originating processes i.e. refusal to pay check-off dues, de-recognition of claimant, dissolution of the claimant's committee in the local branch are all acts which allegedly occurred before the 19th of March 2008. That the facts averred and the evidence produced by the claimant allege/show that payment of check-off dues was stopped in October 2004. That the purported dissolution of the claimant's branch executives or their de-recognition along with similar actions which is the subject matter of this suit, all happened before the 19th February 2008 when the claimant, in purportedly reacting to the acts of the 2lui respondent, picketed the 1st respondent. Further, that the final action of the 2nd respondent on which the claimant could premise its relief for mandamus and any further acts of interference in the claimant's activities thus occurred before the 19th of March 2008. That the evidence in fact is that all the acts complained of occurred before the 5th of March 2008 as the said acts form the content of a letter dated 4th March 2008 written by the General Secretary of the claimant, referring to paragraph 42 of the statement of facts and item 9 in the documents. Counsel further submitted that as a matter of fact the purported last act of the 2nd respondent resulting in this action for mandamus occurred before or on the 3rd of March 2008, "the disputed undertaking purportedly obtained by duress from the claimant having been dated on the same day". That although the purported acts occurred before or on the 3rd of March 2008, since the said undertaking which was purportedly obtained by duress was in fact dated the 3rd of March 2008, the claimant only brought this suit seeking mandamus on the 19th of June 2008 which is in fact over three months and two weeks after they purportedly occurred. On this issue, learned counsel concluded by submitting that the period between the last acts from which the claimant seeks the relief of mandamus and the date on which the suit was actually filed, being more than three months and so the said prayers for mandamus is statute-barred. On issue 8, learned counsel for the 1st- 4th respondents submitted that from the processes filed before this court, the claimant did not address, let alone satisfy the conditions for the grant of the relief of mandamus as per relief 12 of its complaint. That an order of mandamus is not grantable in at least the following circumstances:- (a) where the public officer has discretion and not. a duty to act, referring the court to O. A. Akintemi & ors v. Prof. C, R.Omvumechili & ors [1985] 1 SC 132 at 173. (b)" Where there is an alternative remedy which is more convenient, beneficial and effective. c) Where there has been undue delay by the applicant before bringing the application. d) Where there has not been a demand by an applicant and a failure of the public officer to so act - Fawehinmi v. Akilu [1987] 4 NWLR (Pt. 67) at 797. e) The applicant has not shown that the public officer owes him a public duty to do the act in question. Learned counsel, therefore, submitted particularly that the claimant in this suit was required to show from the statement of facts and or by evidence, the following: (i) That the 6th and 7th respondents hold a public duty to revoke the 2nd respondent's stay and work permit and deport the 2nd respondent. (ii) That the 6th and 7th respondents owe a public duty to the claimant. (in) That the right of the 6th and 7th respondent to deport the 2nd respondent is not discretionary but a strict duty, that is to say that there is no alternative specific remedy at law which is not more convenient, beneficial and effective. (iv) That the claimant had demanded from the 6th and 7th respondent previously the revocation and deportation of the 2nd respondent and the 6th and 7th respondents have refused to carry out this duty, referring the court to Atungwu v. Ochekwu [2000] 1 NWLR (Pt. 641) 507 at 517. Learned counsel then submitted that the above requirements are issues of facts, not of law, and thus require to be averred to in the statement of facts and then proved by evidence. That no where in the statement of facts is any of these requirements alleged. That the law is trite that facts not pleaded go to no issue and cannot be substantiated by evidence. That since the claimant has not satisfied the requirement of even pleading the ingredients to be considered by this court before the grant of an order of mandamus, he cannot be heard to attempt to satisfy the court as to proof of the said ingredients at the trial, and thus urged this court to strike out the 3ld relief for being ex facie incompetent. On issue 9, learned counsel submitted that the law in this issue is contained in section 25 l(l)(i) of the 1999 Constitution of Nigeria which provides that: Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by "an act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters of citizenship, naturalization and aliens deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas. Learned counsel contended that the claimant has admitted that the 2nd respondent is a foreigner and not a citizen of Nigeria and so the relief seeking the deportation of the 2nd respondent falls exclusively within the jurisdiction of the Federal High Court. Counsel, therefore, submitted that this court has no jurisdiction to entertain and or grant the relief. In concluding his submission, learned counsel in summary urged this court to hold as follows:- (1.) That this suit having not been commenced by ministerial referral and not being one for interpretation, this Court cannot exercise original jurisdiction in respect thereof. (2.) That the 1st, 2nd, 3rd and 4th respondents, being General Manager and employees respectively of the 1st respondent, are not proper parties to this suit having acted in the course of their employment with, and for and on behalf of the 1st respondent, a distinct judicial personality, and accordingly strike out their names. (3.) That no cause of action has been disclosed against the 1st, 2nd, 3rd and 4th respondents. (4.) That the court has no jurisdiction over the 5th, 6th, and 7th respondents, they being the Federal Government and /or its agencies. (5.) That even if this court has jurisdiction over the 5th, 6th, and 7th respondents, it has no jurisdiction over the action of the 5th, 6th and 7th respondents on which the claimant premises reliefs 3, 10 and 12 in the statement of facts. (6.) That the jurisdiction over the 5lh, 6th and 7th respondents as to their action is vested exclusively in the Federal High Court. (7.) That relief 12 is one for judicial review. (8.) That this suit seeking relief 12 is statute-barred having commenced over three months of the purported act upon which the relief is sought occurred. (9.) That even if the suit for judicial review is not statute barred, the claimant has not alleged any of the ingredients to support the grant of such relief. (10.) That relief 12 as far as it concerns the deportation of a foreigner i.e. the 2nd respondent cannot be brought before this court as such is within the exclusive jurisdiction of the Federal High Court. The 5th respondent on its part raised one issue for determination, that is:- "Whether the Appellants the as Federal Government's statutory Corporation/Agencies can be sued at the National Industrial court by virtue of section 251 (l)(p) of the CFRN 1999". The 5th respondent submitted that by virtue of section 251(l)(p) of the 1999 Constitution, the Federal High Court is the competent court to try matters in which the Federal Government or any of its agencies is a party. That in the claimant's averment in paragraph 5 of the statement of claim it is stated that- The 5th [respondent] is a Government Security agent in charge of the security of the Nation...while the 6th and 7th [respondents] are Government functionaries charged with the duty of regulating immigrants' stay in Nigeria and the deportation of foreigners who are not eligible to stay in Nigeria or who are threats to National Security, Public Peace etc. That by the above averment the claimant has stated the obvious, that the 5th, 6th and 7th respondents are Federal Government agencies and so the proper court is the Federal High Court. To the 5th respondent, it is beyond argument that the 5th, 6th and 7th respondents are agencies of the Federal Government. That the expression "any of its agencies" as stated in section 251(l)(p) has been held in University of Abuja v. Ologe [1996] 4 NWLR (Pt. 445) 706 at 712 to mean as follows: The use of the expression "any of its agencies" in section 230(l)(q), (r) and (s) of the 1979 Constitution as amended by Decree 107 of 1993 is meant to cover all the organs established by law through which the Federal Government carries out its functions. That the Federal Government no doubt carries out its functions through, the 5th, 6th and 7th respondents. That the 5th respondent is an agency established. by the Federal Government through the National Security Agency Act Cap. 278 LFN 1990 with its duties and functions spelt out in section 3, which is amongst others, to carry on the duty of the National Security of the Nation. Also that in Adebileje v. NEPA [1998] 12 NWLR (Pt. 577) 219 at 224, the National Electric Power Authority, a statutory corporation, was held to be an agency of the Federal Government, and so this Court is in this submission invited to hold that the 5th respondent is an agency of the Federal Government of Nigeria. The 5th respondent further submitted that where the Federal Government or y of its agencies are parties in a suit where the administration and "management of its functions are called to question, the Federal High Court is the only competent court to entertain the suit. To the 5th respondent, the totality of the claimants' statement of claim complains of the 5th respondent's conduct in handling the problem between them and the 1st to 4th respondents of the management and administration of same and the attendant consequences of such conduct which is the undertaking entered into by parties in the resolution of the matter. That the proper or improper conduct of the 5th, 6th and 7th respondents' business, which is the alleged arrest of innocent markers of the claimant, is a matter that touches and concerns the management, administration and running of the respondents' business and, therefore, one coming under the purview of section 251(l)(p) of the 1999 constitution, citing NEPA v. Edegbero & ors [2002] 18 NWLR (Pt. 798) 79 at where Tobi, JSC held as follows:- In my view, for the Federal High Court to have jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government or any of its agencies, The 5th respondent, therefore, submitted that this court is in the same vein ted to hold that the acts which the claimant complain of are acts which :h, concern, arise from queries and come clearly within the administration, management and conduct of the 5th respondent's business within the meaning of section 251(l)(p) of the 1999 Constitution of Nigeria. In conclusion, the 5th respondent submitted that by virtue of section 5 of the Trade Disputes (Essential Service) Act Cap. T9 Laws of the Federation, 2004, a dispute ought to be referred, first and foremost to the Industrial Arbitration Tribunal, which means this court has no original jurisdiction over the matter. Finally that assuming without conceding, that this court has original jurisdiction to hear this matter, by virtue of section 251(1) of the 1999 constitution, this court cannot adjudicate over the matter as the proper court capable of jurisdiction in the matter is the Federal High Court. The 5th respondent then urged the court to so hold and dismiss this suit against the 5th , 6th and 7th respondents. Learned counsel for the 6th and 7th respondents on the other hand raised two issues for determination: a) Whether this court has original jurisdiction to entertain this suit; and if same was not premature as it was not first referred to the Industrial Arbitration Panel. b) Whether this court can adjudicate on the action when the 5th respondent is a party to the suit. Firstly, learned counsel contended that there was blatant non-compliance with the provisions of section 5 of the Trade Disputes (Essential Service) Act Cap. T9 Laws of the Federation, 2004. That this section requires that, where the dispute is one to which persons employed in any essential service are parties or might become parties as in this case, the dispute ought to be referred to the Industrial Arbitration Panel under the Trade Disputes Act. To the learned counsel, this means that this court has no original but appellate jurisdiction conferred on it by section 22 of the TDA. And that a close perusal of the claimant's suit will reveal that there was no compliance with the law as it relates to such requirements. Furthermore, that perusing the processes filed by the claimant in this suit, it is abundantly clear that the 5th — 7th respondents, who are officers rendering essential services, are parties to the suit; but that the dispute was not first referred to the IAP which has the original jurisdiction to hear this case as required by law. That not being the case, counsel submitted that the present action was not initiated in conformity with the conditions precedent needed to enable the exercise of the appellate jurisdiction of this court and so this suit is incompetent. He urged this court to strike out this suit, citing section 5 of Trade Disputes (Essential Services) Act 2004 and WAEC v. Akin Kunu [2608] 4 SC 1, where the court held that where a claim is not initiated by due process of law, the claim is incompetent; and where the incompetent claim is heard by the court, the proceedings are a nullity as the court sat without jurisdiction, citing the case of Madukolu v. Nkemdilim & ors [1962] 1 A11NLR 587 at 593. On the second issue, learned counsel submitted that by the provisions of section 251(l)(p) of the 1999 Constitution, this court cannot exercise its jurisdiction over the 5th, 6th and 7th respondents, because the 5th and 6th respondents are agencies of the Federal Government of which the 7th respondent, by virtue of section 147 of the 1999 Constitution, is a Federal Government Minister as rightly admitted in paragraph 5 of the claimant's statement of facts in support of the complaint. Counsel then cited section 251(l)(p), which provides as follows: notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, the Federal High court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matters relating to; (p) the administration or the management and control of Federal Government or any of its agencies. To the learned counsel, the law is, therefore, sacrosanct that the only court that has jurisdiction over the Federal Government, its ministries or and its agencies as it relates to administration or management and control thereof irrespective of the subject matter is the Federal High Court and not this court nor any other court, referring to the said section 251(l)(p) of the 1999 Constitution and the case of Olonmtoba-Oju v. Dopemu [2008] 7 NWLR (Pt. 1085) 1 at 25 - 26 para. A - B and NEPA v. Edegbero [2002] 18 NWLR (Pt. 798). Counsel to the 6th and 7th respondents in conclusion urged this court to uphold the above submission and prayed this court to strike out this suit on grounds of incompetency of the action and lack of jurisdiction. The claimant on the other hand, and in reply to all the arguments of the respondents to strike out this suit in its entirety and against the 2nd to 4th respondents, adopted the issues as raised by the 1st - 4th respondents, which encompassed the others raised by the 5th, 6th and 7th respondents as well as the issues raised by this court suo motu. As to whether due process has been followed in presenting this matter before this court, the claimant began by posing the question whether this matter is even a trade dispute to make the provisions of the Trade Disputes Act applicable. The claimant then cited section 48(1) of the TDA which defines a trade dispute to mean "any dispute mat is 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". That from the, definition of trade dispute, it is not all trade disputes that are governed by the TDA and for emphasis it is only those trade disputes that are connected with the employment or non-employment or terms-of employment and physical conditions of work of any person that it affects. That where two workers have a dispute which is not connected with i c. 15 the above, it is not a trade dispute. That where for instance, trade union A clashes with union B or its employer, which is not connected with the above definition of trade dispute, the Act is not applicable. To the claimant, demand for check-off dues and its refusal to pay, interference with trade union internal affairs, arrest and detention of its members are all not trade disputes as far as the TDA is concerned. The claimant continued that what amounts to a trade dispute under the NIC Act 2006 is totally different from what is it in the TDA. That the TDA has a narrower meaning; that the TDA is different from the NIC Act and so what is not in the TDA cannot be imported into it. And so anything or dispute which is not covered by the TDA cannot be forced into it even if the NIC Act contains it because the NIC Act did not have referral provisions. That the issue of jurisdiction is very important and so it cannot be expanded more than what the enabling statutes provides. Also that once it is outside it has to be so forever. The claimant contended that the definition of trade dispute in section 54 of the NIC Act must not be confused with that of section 48 of the TDA in the determination of this case. To the claimant, a trade union case is different from trade dispute. That not all trade union cases are trade disputes. And even if the union has disputes with another union or their employees, once it is not a trade dispute according to section 48 of the TDA, the TDA is not applicable. That for it to be a trade dispute, it must meet the Trade Disputes Act's definition of what trade dispute is. The claimant further submitted that to determine whether the claim brought before the court in the suit is a trade dispute, "the court must read together with the TDA to determine whether the court has jurisdiction. And in this case, that it is clear that the claim is outside the definition of trade dispute as defined by the TDA before the provisions of the TDA becomes, inapplicable and the court automatically assumes jurisdiction because there is no hindrance before it". That every step that needed to be taken before instituting this suit has been taken; the NIC Act and the NIC Rules have been complied with and so this court has jurisdiction to hear this, case, citing O, D. Kalango & ors v. Romeo Dokubo & ors [2003] 15 WRN 32 at 67 lines 35 - 40 (68 - 69) and Adams Oshiomhole & anor v. FGN & anor [2007] 21 WRN 100. The claimant urged this court to read the claims or releifs along with section 48 of the TDA and the cases cited to .support the assertion that the TDA is not applicable; and if such is the case, there is no need for referral. The claimant also submitted that the principal claim is about non-payment of check-off dues and all other releifs are ancillary to it. And so the provision othe T!)A is inapplicable to this case and so the issue of referral or non-compliance with sections 4 - 10 of the TDA will not prevent this court from hearing the suit. On the question of referral to this court by the Minister, it is the contention of the claimant that sections 4 - 6, 9 and 17 of the TDA contain provisions regarding such referral; but that section 4 has to do with a situation where there is a dispute i.e. (trade dispute) and there is an agreement between the parties that in case of a conflict, a particular step or mode must be followed. And that this mode shall be the 1st step to the said resolution; but that in this case, there was no such agreement and so section 4(1) of the TDA is not applicable. Also, that by section 4(2) of the TDA, if no resolution is reached in the dispute then a mediator agreed to by both parties shall be appointed to look at the issues if the parties cooperate. But that unlike this present case where the 1st respondent did not want to see the claimant and has been doing everything to frustrate it, it is not possible to appoint a mediator. That the claimant reported the 1st respondent to the Ministry of Labour and Productivity and also wrote letters dated 17th June 2005 and 25th February, 2008 respectively but that the Ministry ignored it. That the claimant also reported to the Employers' Association of which the 1st respondent is a member. That their representative came to mediate but the 1st respondent refused to listen to them at the instigation of the 2nd respondent who is a foreigner. This, to the claimant, means that the mediation contemplated by section 4(2) of the TDA is not possible. That by section 4 where the Minister apprehends a trade dispute, he may inform the parties on how he feels and what he intends to do. That such is just the exercise of the Minister's discretion, which he may or may not;' that there is no compulsion on him. And in this case, that the Minister has not taken such steps since 2004, and even when he intervened, the 1st respondent refused to listen or cooperate or obey him. And that is why the claimant, as a matter of necessity, appealed to the equitable jurisdiction of this court. Again that the Minister can only act only where there is a trade dispute which is not the case in this matter. Further, that section 6 speaks of where a mediator has been appointed, but that none is appointed in this suit. "Also that sections 7-8 are based on sections 4 and 6, while section 8 rests on section 7 even to this case because they are all offshoots of sections 4 and 6, which are not applicable to this suit". That where sections 4 and 6 of the TDA are not applicable, as in this case, the question of referral will not arise and so the question of following certain steps as provided by the TDA did not arise. The claimant also submitted that by virtue of its claim, this court has jurisdiction, being the only court not excluded from entertaining their matter, citing sections 7 and 11 of the NIC Act 2006. That nobody including any statute can prevent any party from going to court. That if such Act exists, it is unconstitutional, referring the court to section 36(1) and section 6(6) of the 1999 Constitution. And that in this case it is clear that the claims fall outside the definition of trade dispute under the TDA. That section 1(1) and (3) of the Constitution puts the Constitution and its provisions above all other laws in Nigeria and so section 36(1) of the Constitution of Nigeria 1999 is superior to the TDA; and that being an Act of the National Assembly, the TDA cannot • amend the Constitution or alter or modify it. And so section 2(1), (2) and (3) of the TDA is null and void and of no effect because it hinders free access to court as guaranteed by the Constitution, referring the court to AG Oyo v. 7VLC, supra, 601 at 624 - 625, Adisa v. Oyinwola [2000] 10 NWLR (Pt". 674) 116, AG Abia State & 35 ors v. AG Federation [2002] 3 SC 106 at 127 and AG Federation v. AG Abia State [2002] 4 SC (Pt. 1) at 137. That being the case, that nobody or Act can stop the claimant from coming to court. That even the NIC Act did not say that the TDA must be complied with before an action in which it has original jurisdiction must be filed. The claimant then submitted further that there is no need to consult the Minister before filing this suit. To the claimant, section 2(1), (2) and (3) of the TDA, being invalid, the issue of consulting the Minister or coming to this court directly becomes a matter of choice; and so non-consultation with the Minister cannot nullify this action or stop anybody from approaching the court. That there is a great difference between the military regime and now. That under the military, the TDA was made superior to the Constitution; but that the reverse is the case today as the Constitution is superior to the TDA and so section 36(1) gives free access to" court and that the TDA cannot stop it. The claimant continued mat assuming without conceding that the TDA applies to this case, this court should still entertain the case by the claimant in the present legal position on labour matters in Nigeria by virtue of the enactment of the NIC Act 2006. The claimant urged that in the past the Federal High Court and the High Court of a state and that of the Federal Capital Territory Abuja could entertain the claimant's case but since the promulgation of the NIC Act 2006, their jurisdiction to entertain labour matters have ceased, referring to sections 7(1 )(a) and 11 of the NIC Act 2006. That the alternative left for the claimant is the 1AP but that a look at the claims of the claimant the IAP cannot entertain them. According to the claimant, the IAP can only make an. award, it cannot grant a declaration, injunction and or make any order and so it cannot entertain the claim of the claimant. That by virtue of sections 16 and 19 of the NIC Act 2006, this Court has the jurisdiction to entertain this claim. That this court is of superior record, a court of law and equity with unlimited jurisdiction in labour matters, citing sections 7, 11, 13, 16, 19 and 54(2) and (3) and the cases of Western Steel Workers v. Iron & steel Workers Union [1987] 1 NWLR (Pt. 49) 284 and AC, Oyo State v. NIC & ora NLLR (Pt. 3) 591 at 617 and 618 paras A, B and C. Furthermore, that the interpretation of section 7(1) of the NIC Act 2006 is that all other courts and tribunals have been excluded from entertaining certain civil causes and matters relating to labour; and that once any matter relates to labour as in this case, this Court has the jurisdiction. That section 7(l)(a) of the NIC Act 2006 talks of labour including trade unions and industrial relations. That the claimant is a trade union; therefore, this court has exclusive jurisdiction over it. According to the claimant, Black's Law Dictionary, 7th Edition at page 878 defines labour as "work of any type including mental exertion". This means that whatever any work one does is regarded as labour and any issue there from or disputes can only be resolved by this court. Also, that at page 779 of the same Black's Law Dictionary defines industrial relations as "All dealings and relationship between an employer and its employees including collective bargaining about issues such as safety and benefits". And so payment of check-off dues to the claimant is an industrial relations matter which this court has jurisdiction to entertain. That the intention of the law makers as manifested in sections 7, 11 and 54 of the NIC Act is to create a specialized court to handle all labour, trade union and industrial relations matters and so oust the jurisdiction of all other courts and tribunals with IAP inclusive. And to further confirm the intention of the lawmakers in this regard, that section 54(4) of the NIC Act 2006 subjected the TDA and some other statutes under the Act, and provided that any part of the TDA that is in conflict with it is null and void. And so any part of the TDA that deprives a party from coming directly to this court in a matter under section 7(l)(a) of the Act is null and void. The claimant then urged the court to hold that it has undisturbed jurisdiction to determine this case. On the issue of whether the 2nd, 3rd and 4th respondents are proper parties, the claimant noted that the 2nd, 3rd and 4th respondents have not denied the allegations made against them by the claimant and so are deemed to have admitted all that the claimant has said therein, and so the motion to strike out this suit is incompetent and urged this court to strike it out. The claimant further contended that in its statement of facts there are specific allegations and claims against the 2nd, 3rd and 4th respondents; a good example is the allegation that the 2nd respondent is a security risk to the Nation by disobeying the law of the land with impunity. That in the interest of justice this court should not strike out the names of 2nd, 3rd, and 4th respondents because there is the need for them to be cross-examined during trial; that legal technicalities should not be employed by 2nd, 3rd and 4th respondents to escape justice. That the veil of the 1st respondent must be lifted so that the faces of those lawless people can be unmasked in order to punish them for their acts. Also that the 2nd - 4th respondents were sued because of the specific roles they played in the case that gave rise to this matter. That for the fact that they are employees do not mean they were acting for the 1st respondent and that the 1st respondent is a legal person distinct and different from them and so all authorities cited by the respondents are inapplicable in this case. The claimant, therefore, urged the Court to dismiss the objection. As to whether this Court can exercise jurisdiction over the 5th, 6th and 7th respondents, the claimant submitted that section 251 of the 1999 Constitution is inapplicable in this case; that section 251 did not confer on the Federal High Court jurisdiction in labour related matters. That this matter is all about labour, industrial relations and trade union matters. According to the claimant, sections 17, 43, 44 and 45 of the NIC Act 2006 has no restriction to persons that this court can adjudicate upon and so submitted that on the strength of the provisions cited, that this court has an unhindered and indisputable jurisdiction over the 5th, 6th and 7th respondents. As to whether this court can grant the reliefs sought against 5th, 6th and 7th respondents, the claimant urged that the reliefs sought are ancillary to the main claim which is labour and in that regard section 251 of the 1999 Constitution is inapplicable in this case. That the clear and unambiguous intention of the legislature in enacting the NIC Act 2006 was to give this power to adjudicate over the 5th, 6 and 7th respondents in labour matters. That since the claimant is a trade union, and the subject matter of the suit is one relating to labour, or incidental thereto, this court can grant the reliefs being sought by the claimant against the 5th, 6th and 7th respondents. As to whether relief 12 is a judicial review, the claimant submitted that the respondents' argument in this respect is not relevant as per the relief sought. The claimant contended that this action was brought to this court pursuant to Form 1 (writ of summons). To the claimant, an application for judicial review is usually by way of motion or originating summons supported by affidavit. According to the claimant, this court can conveniently grant the reliefs of the claimant under sections 16, 18 and 20 of the NIC Act 2006. Also the claimant pointed out that the court that has the right to hear any matter must of necessity have the power to make any order to achieve the ends of justice. The claimant further submitted that there is no where in its claim where judicial review is being sought or where it stated that it wants a judicial review. That all that is been said about the 5th respondent is that its action is illegal and that does not amount to seeking for judicial review. The claimant, however, concluded its submission that even though it strongly believes and contends that this court has jurisdiction in respect of this matter, should this Court think otherwise, the Court should exercise its powers under section 24 of the NIC Act 2006 and Order 28 of the NIC Rules 2007 and transfer the matter to the Federal High Court. That the prayers of the respondents that this matter be struck out or dismissed has no statutory. backing, neither is it supported by law, quoting section 24(2) of the NIC Act, which provides as follows: - No cause or matter shall be struck out by this court merely on the ground that such cause or matter was taken in the court instead of the Federal High Court.... That this provision places a compulsion on this court in the circumstances of this case because of the word "shall" not to strike out or dismiss this action but transfer it to the Federal High Court. The claimant then urged the court to accede to its prayers. The claimant finally urged this court to hold that the issue on this matter is not a trade dispute by virtue of the definition of the TDA; and that given the new regime of labour law since the coming into force of the NIC Act 2006, it is only this court that has jurisdiction in respect of this matter, There was no reply on points of law. After a careful consideration of all the submissions of all the parties in this matter, we want to first express our displeasure with the many errors in the written address of the 1st - 4th respondents and the needless repetitions in the claimant's written address. We must, therefore, once again reiterate and caution that the court should not be turned to a proofreader. Counsel would thus need to be more careful in ensuring that whatever brief emanates from counsel is error-free. The errors in the written addresses and especially the needless repetitions have the capacity of blurring the reasoning in the submission by counsel as can be seen in the submissions highlighted in parenthesis above. We do not think that it is the volume of the written address that matters; after all, there is merit in brevity; and clarity of reasoning is all that matters. Having made these remarks, what remains is the determination of the issue at hand which is the competence of the matter at hand and the jurisdiction of this Court to entertain same. In this regard, the question that comes for determination is whether this Court has original jurisdiction in this matter, and even if it has whether the court can exercise jurisdiction over the 5th, 6th and 7th respondents as sued by the claimants. While the claimant argued that the Court has original jurisdiction, the respondents argue that it does not. Also the respondents argued that the matter in issue is a trade dispute in which this Court does not have original jurisdiction; that the matter is a trade dispute and so the jurisdiction of this court is appellate, not original. In other words, that the processes of Part I of the TDA must be exhausted before the intervention of this Court can be sought. The claimant's response is that this is not a trade dispute since this is not a dispute mat is connected with the employment or non-employment or terms of employment and physical conditions of work of any person. We do not agree with the claimant that a demand for check-off dues and its refusal to pay, interference with trade union internal affairs and non-recognition of the union by an employer do not qualify as trade disputes. To start with, it is trite and all the parties are in agreement that it is the originating processes of the claimant that determine whether or not a Court has the jurisdiction to hear and determine the matter at hand. See the cases of Western Steel Works Ltd v. Iron and Steel .Workers Union of Nigeria & ors [1987] 1 NWLR (Pt. 49) 284 at 296 para. G - H, Adeyemi & ors v. Oyeyori [1976]-! FNLR 149 and the recent Supreme Court decision in Oloruntoba-' Oju & ors v. Dopamu & ors [2008] 7 NWLR (Pt. 1085) 1 at 23. A look at the processes filed by the claimant shows that the issues before the parties is the refusal to remit check-off dues deducted from the salaries of the claimant's members and the derecognition of the claimant union by the 1st respondent. This falls squarely within the definition of trade dispute for which this Court given section 7(3) of the NIC Act does not have original jurisdiction to entertain. Section 47(1) of the Trade Disputes Act Cap. 432 LFN 1990 defines the term '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. This definition is reinforced by section 54 (1) of the NIC Act 2006 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. Given the definition of the term trade dispute, we believe that the claims of the claimant fall squarely into that definition. This being the case, it is wrong for the claimant to have approached this Court as a court of first instance without recourse to the processes of mediation, conciliation and arbitration provided in Part 1 of the TDA and sanctioned by section 7(3) of the NIC Act 2006. This Court has in a number of cases and particularly in CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 at 24 para E - G held as follows: - The question of recognition of a trade union or deduction of check-off dues is one that is connected with the employment or non-employment, or terms of employment or conditions of work or service, so too is the question as to what deduction to make from a worker's wages or - salaries which is statutorily provided for under section 5 of the Labour Act. So when a trade union complains that an employer is refusing to deduct check-off dues in respect of employees or workers who are eligible to be its members as in the instant case, that complaint is a trade dispute and can properly be heard under the dispute resolution processes of the Trade Disputes Act 1990. See also AUPCTRE v. FCDA & ors unreported suit No. NIC/17/2006 delivered on May 23, 2007 and Mix & Bake Floor Mill Industries, Ltd v. NUFBTE [2004] 1 NLLR (Pi. 2) 247. In line with the authorities cited above, we hereby hold that this matter is a Trade Dispute. Having held that the cause of action before this Court is one that is a trade dispute, we therefore hold that this Court has no original jurisdiction to entertain same. The resolution of the matter ought to go through the processes of Part 1 of the TDA and so the matter is premature before this court. There is the 2nd issue, which is whether this Court can even exercise jurisdiction over the 5th, 6th and 7th respondents given the clear provision of section 251 of the 1999 Constitution. Section 251(l)(p) of the Constitution, which is relevant here, has been reproduced earlier and so needs no repetition. In view of the clear provisions of section 251(l)(p), coupled with the averment of the claimant in paragraph 5 of the statement of claims and the submissions of all the respondents, we agree that without more the 5th, 6th and 7th respondents are agents/agencies of the Federal Government. Also on the authority of University of Abuja v. Ologe, supra, NEPA v. Edegbero, supra, Adebileje v. NEPA, supra, and the decision of this Court in Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine, v. Obafemi Awolowo University Teaching Hospital Complex Management Board & 2 ors. Suit No. NIC/8/2006 delivered on 25th June, 2008,'we hold that this court lacks jurisdiction in respect of the 5th, 6th and 7th respondents in the manner presented by the claimant in this matter. The reliefs sought for by the claimant against the 5th, 6th and 7th respondents are reliefs that this court had no jurisdiction or power to consider and grant. As to whether the 2nd-4th respondents are proper parties in this case, we are of the view that the complaints against them relates to issues outside the original jurisdiction of this court; and so this court cannot entertain it as a court of first instance. On the whole, we hereby hold that this Court does not have original jurisdiction to entertain the claims of the claimant. Consequently, the matter before the court is hereby struck out. We make no order as to cost. Ruling is entered accordingly. Hon. JusticeB.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