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BEFORE THEIR LORDSHIPS: Hon. Justice B. A. Adejumo - President Hon. Justice B. B. Kanyip - Judge Hon. Justice V. N. Okobi - Judge DATE: JULY 6, 2009 SUIT No. NIC/12M/2003 BETWEEN 1. COMRADE OLU SOLADEMI 2. COMRADE ISIAKA AYOOLA 3. COMRADE O. C. OFURU 4. COMRADE AMOS ALAFURO 5. COMRADE O. OLATUNJI 6. COMRADE A. BABARINDE - Applicants (For themselves and on behalf of members of the Nigeria Civil Service Union in Oyo, Rivers and Osun States) AND 1. COMRADE E. C. EDEJI 2. COMRADE ABDULKARIM A. IBRAHIM 3. COMRADE NNUGO FRANK 4. COMRADE ZAKARIA. SHANGE 5. COMRADE B. OGUNMOLA 6. COMRADE N. N. NWAUZOR (For members and on behalf of the general committee of Management called the National Executive of the Nigeria Civil Service Union). 7. NIGERIA CIVIL SERVICE UNION - Respondents REPRESENTATION M. 0. Agboola, with him is F. N. Ukaegbu, for the applicants. B. E. Mbagwu, holding the brief of C. Akpamgbo SAN, for the respondents. RULING The applicants had filed a motion on notice dated 4th June 2003 and filed on same date. The motion is brought pursuant to sections 14 and 50 of the Trade Disputes Act (TDA) Cap. 432 LFN 1990 and section 25 of the Rules of this court. By the motion, the applicants are praying the court for the following orders/reliefs - 1. An interpretation of the judgment of this court in Suit No. NIC/5/93 delivered on 27th June, 1995 particularly with regard to the following questions: (a) Whether the said judgment (and all relevant laws relating thereto) permits the 1st โ 6th respondents who are senior workers on GL 07 and above to seek, contest for or hold elective positions in the union (7th respondent) in spite of the fact that they should belong to the Association of Senior Civil Servants of Nigeria. b) Whether the respondents being senior workers (GL 07 and above) who should not normally be members of the union have the right to continue to control the national office of the union in spite of the clear judgment of this court, the statutory classification that enacted it and the consistent stand of the Federal Government as revealed in a letter Ref. CND/25/T2/12 of 22nd April, 2003. c) Whether the respondents are empowered by the said judgment or in any manner whatsoever to forcefully take over and replace with caretaker committees the executives of the union in OYO, OSUN, RIVERS States and indeed in any of the States of the Federation who are junior workers themselves and were elected by junior workers as dictated by the judgment of this court referred to and other laws relating thereto. 2. An injunction restraining the respondent or any one of them or anyone acting for them not being junior workers (GL 01 - 06) from seeking, contesting for or holding any elective or management office or status in the Nigeria Civil Service Union. 3. A declaration that any act or attempt to replace the elected executive committees of the union at the state levels and/or replacing them with a caretaker (committee) is illegal, null, void and of no effect. 4. An order appointing a public trustee under section 50 of the Trade Disputes Act to manage the affairs and finances of the 7th respondent forthwith and to convene a National Congress of the genuine members of the union (GL 01 - 06) to elect genuine national officers not later than the last week in the month of November 2003. 5. Such further or other orders as this court may deem it fit to make in the interest of justice and the entire circumstances of this case. The motion is supported by a 25-paragraphed affidavit sworn to by Comrade Olu Solademi, the 1st applicant with Exhibits A, B, C, D, Dl, E, F, Fl, F2, G, H and J attached. In reaction to the motion, the respondents filed a notice of preliminary objection dated 9th July 2003 and filed on same date. By the preliminary objection, the respondents prayed that the present action is incompetent and so should be struck out. The grounds of the said objection are- 1. That this Court had on 7th March 1996 in Suit No. NIC/8M/95, NIGERIA CIVIL SERVICE UNION v. ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA, declined to consider a similar application, as the substantive application in this suit, in view of the provisions of the Trade Unions (Amendment) Decree No. 4 of 1996. 2. The suit herein is an intra-union dispute. 3. Non-compliance with the mandatory statutory pre-conditions to the filing of the suit before this Court. - 4- That the court lacks jurisdiction to entertain the suit. In support of the preliminary objection is a 13-paragraphed affidavit sworn to by Comrade Nathan Nkem Nwauzor, the 6th respondent. The facts deposed to are - 1. That 1 am the 6th respondent herein and the General Secretary of the 7th respondent union herein and as such I am familiar with this Suit and all the facts deposed to herein are within my personal knowledge except as otherwise stated. 2. That I have the consent and authority of the other respondents to swear to this affidavit. 3. That I have been a paid Secretary in the 7th respondent union since 1980. 4. That the 7th respondent herein was the appellant in Suit No. NIC/5/93 in which judgment was delivered on 27th June 1995 by this Court. 5. That on or about the 22nd August 1995, the 7th respondent herein brought an application before this Court in Suit No. NIC/8M/95 seeking, inter alia, for an interpretation of the afore-mentioned judgment. 6. That while the said application was pending and before it was heard by the Court, the Trade Unions (Amendment) Decree No. 4 of 1996 was promulgated which substantially changed and altered the afore-mentioned judgment of this Court. 7. That I am informed by Clement Akpamgbo (SAN), the lead Counsel to the respondents, and 1 verily believe, that by virtue of the said Decree No. 4 of 1996, the 7th respondent automatically became entitled to unionise all cadres of civil servants including those on grade level 07 and above except those who are enforcement employees in Customs and Immigration Services, Technical, Typists, Stenographic, Medical, Nurses and Midwives and recognised professional and administrative cadres. 8. That in view of the facts stated in paragraphs 5 and 6 herein, this Court found no reason to consider the merit of the said application mentioned in paragraph 4 herein and accordingly struck out the same when it came up on 71'1 March 1996. The proceedings and order of the Court is attached to the affidavit in support of the substantive Motion of the applicants herein and marked "B" 9. That the suit herein is an intra-union dispute within the 71 respondent union. 10. That the applicants have not taken any of the mandatory statutory steps to declare a dispute herein and to have the said dispute duly referred to this Court. 11. That I honestly and reasonably believe that the suit herein is incompetent. 12. That it will be in the interest of justice if this suit is struck out. 13. That I swear to this affidavit in good faith believing the contents to be true and in accordance with the Oaths Act. At the courts's sitting of 11th November 2004, given that on that day's sitting and at the sitting of the court on 7th October 2004 neither the parties nor their counsel were in court, the court struck out the substantive matter for lack of diligent prosecution. However, by a motion dated 14lh November 2005 but filed on 2nd December 2005, the court re-listed the substantive matter, which gave rise to the hearing of .the preliminary objection of the respondents. As per-the preliminary objection, the respondents prayed the court to strike out the action as incompetent basing their prayer on 4 grounds. Regarding ground 1, the respondents submitted that the applicants in this case were not parties to the judgment of this court which they seek to interpret. That the only relation they have to the judgment is their membership of the 7th respondent union. Referring to section 14(l)(b) of the TDA 1990, the respondents submitted that the matter in the judgment sought to be interpreted, being an inter-union dispute, only the parties to it can seek the interpretation of the said judgment not individual members of only one of the parties as is the present case. Secondly on ground 1, that the Nigeria Civil Service Union (NCSU), to which the applicants belong, has already sought the interpretation of the judgment in this court. That this court declined to interpret the said judgment in view of the provisions of Decree 4 of 1996 as they relate to jurisdictional scope of the NCSU, which was the basis of the said judgment. The respondents further submitted that there is no difference between the basis for the interpretation in this suit and in suit No NIC/8M/95 wherein this court declined an application for similar interpretation, referring to Exh. B attached to the substantive application and Exh. A especially at p. 2 as attached to the main application, which is the main judgment sought to be interpreted. Furthermore on ground 1, the respondents referred the court to see para. 9 of the affidavit in support of the applicant's substantive application as well as Exhibit B attached to the said affidavit and then submitted that this court having refused an application for interpretation of the same judgment involved in this matter (Exh. B) on grounds of law i.e. Decree 4 of 1996, brought by the parties in this matter, this court has become functus officio on that issue of interpretation by the same parties and so lacks jurisdiction to entertain the matter, referring to FCMB v. AID [2000] 8 NWLR (Pt. 667) 42 at 45 Ratio 5 and Alh. Ahmed & Co. Nig. Ltd v. AIB Ltd [2000] 10 NWLR (Pt. 721) 391 at 395 Ratio 3. On grounds 2-4, the respondent submitted that the matter before this court is an intra-union dispute for which this court does not have original jurisdiction, referring to Part I of the TDA. That the mere fact that the applicants are seeking for an interpretation does not preclude the court from looking at the substance of the matter, referring to the applicants' prayers and supporting affidavit (paras. 15 and 16) and the cases of Itodo v. Cheron Texaco [2005] 2 NLLR (Pt. 5) 200 at 206 Ratio 2 and NUHPSW v. NUFBTE [2004] 1 NLLR (Pt. 2) 286 at 300 - 302. The respondents continued that the issues before this court are trial issues for which this court has no jurisdiction since due process under Part I of the TDA has not been complied with. That where a matter is substantially incompetent, the court is not to pick and choose the aspect it wants to entertain; rather the matter should be sent to a court that has jurisdiction over all the issues raised. That the Industrial Arbitration Panel (IAP) has jurisdiction over this matter in its entirety, urging the court to strike out the matter as incompetent. The respondents further contended that in considering their objection, this court should look at the originating process, which in this case is the motion for interpretation together with the affidavit in support and exhibits attached. That in moving the objection, they are entitled to refer to these same processes both on the law raised therein and on the facts contained in the processes, referring to Eniechieta v. Ogueri [1996] 5 NWLR (Pt. 447) 227 at 229 - 230 Ratios 3, 4, 5, and 6 and AG of the Federation v. Guardian Newspapers Ltd [1999] 5 SC (Pt. 3) 59 at 101 lines 10 - 40.' Furthermore on grounds 2 and 3, the respondents submitted that the facts in support of the applicants' claim, as disclosed in the affidavit in support of the substantive application as well as the exhibits attached thereto, clearly show that the matter before the court is an intra-union dispute and not one for interpretation of this court's judgment and so is outside the original jurisdiction of this court, referring to paras. 10 and 15 of the affidavit in support of the substantive application and Exhibit Fl attached to that affidavit. The respondents further referred the court to section 24 of the TDA given that the instant matter arose before the National Industrial Court (NIC) Act 2006 was passed. Also referred to the court are: section 50 of the TDA, prayer 4 of the substantive application and NUHPSW v. NUFBTE [2004] 1 NLLR (Pt. 2) 286 at 290 Ratio 4. That the mere fact that the applicants have come in the guise of the interpretation of the judgment of this court would not avail them of the benefit of that jurisdiction when the matter in substance is in fact an intra-union dispute and so ousting the original jurisdiction of this court, referring to Itodo v. Chevron Texaco Nig. [2005] 2 NLLR (Pt. 5) 200 at 206 Ratio 2. On ground 4, the respondents submitted that the proper parties are not before the court as the applicants in particular do not qualify as parties within the context of section 14 of the TDA upon which the application was brought, referring to Best Vision Centre Ltd & ors v. UACN Property Development Co. Plc [2003] 13 NWLR (Pt. 838) 594 at 598 - 599 Ratios 4, 5 and 6. The respondents then urged the court to strike out the matter given the reasons they advanced. In reaction, the applicants contended that this court has the jurisdiction to hear this case. To the applicants, they are, in the substantive application, seeking the invocation,of the power of this court to interpret and enforce its award on a previous judgment, referring to section 14 of the TDA as well as section 14 of the NIC Act 2006. That section 7'of the NIC Act 2006 reinforces the power granted under section 14 of the TDA. The applicants further submitted that they were parties to the judgment sought to be enforced, referring the court to Mg. Merchant Navy Senior Staff Association v. Ocean Fisheries Co Ltd. [2005] 2 NLLR (Pi. 6) 490 at 497, where this court held that it will enforce compliance with its judgment. That the claim of the applicants relates to the interpretation of Suit No. NIC/5/93 reported in [2004] NLLR (Pt. 3) 429. That the substantive application is predicated upon an existing award/judgment and it is not a new dispute; in which event, the arguments on the distinction between inter-union and intra-union disputes becomes irrelevant. That section 17(3) of the TDA is also irrelevant for the same reason. That as this application is based on an existing judgment, the issue of pre-conditions e.g. reference lo IAP also becomes irrelevant. On Decree No. 4 of 1996, the applicants submitted that the Decree was a direct attack on Suit No. NIC/5/93. That this situation has now been reversed by Decree 1 of 1999. That Decree l of 1999 amended Part D of the Third Schedule to the Trade Unions Act (TUA) Cap. 437 LFN 1990 so as to define the jurisdictional scopes of the various trade unions, referring to NCSU v. ASCSON [2005] 4 NLLR (Pt. 9) 1 and ASCSN v. NOA & ors [2005] 3 NLLR (Pt. 7) 5 at 8. The applicants then urged the court to dismiss the preliminary objection. Reacting on points of law, the respondents contended that the applicants' submission that the proceeding before this court is for enforcement of the judgment of this court in Suit No. NIC/5/93 delivered on June 27, 1995 is wrong; rather that the proceeding before this court is for an interpretation of the judgment under section 14(1) and (2) of the TDA 1990 to which a separate procedure and precondition apply. The respondents urged the court to look beyond the veil and see the actual facts in issue before this court as disclosed by the affidavit in support of the substantive application and the exhibits attached to it especially Exhibit Fl and then contended that the applicants in this suit were not parties to the judgment they are seeking to enforce; neither were the 1st - 6Ul respondents. The respondents then referred the court to Dike-Ogu v Amadi [2008] 12 NWLR (Pt. 1102) 650 at 656 Ratio 6 and 677H regarding the effect of suing a person in different capacities; K. S. O and Allied Products Ltd v. Kofa Trading Co. Ltd. [1996] 3 NWLR (Pt. 436) 244 at 262 H - 263C; and Ifekwe v. Madu [2000] 14 NWLR (Pt. 688) 459at479C-E. To the respondents, the NIC Act 2006 does not apply to this suit as the suit was instituted before the commencement of the Act. That the cases cited by the opposing counsel are totally irrelevant to this suit; and that the opposing counsel did not cite any authority to show that parties under section 14 of TDA can be given such a wide interpretation as to include persons who were not parties on the face of the judgment. The respondents once again urged the court to uphold their preliminary objection. ! We have carefully considered all the processes and submissions of the parties regarding this matter. The case was instituted in this court on June 4, 2003, some three years before the enactment of the NIC Act 2006. This means, and we agree with the submission of the respondents, that, as the cause of action arose before the enactment of the NIC Act, the NIC Act is inapplicable in the resolution of all the issues regarding the case at hand. So, all arguments of the applicants hinged on the NIC Act are not sustainable for present purposes. It is trite law that it is the originating processes in a matter that determines whether or not a court has jurisdiction to determine the matter. The substantive application was brought pursuant to sections 14 and 50 of the TDA 1990. Section 14 provides that- (1) If after an award ofโ (a) an arbitration tribunal be appointed under section 8 of this Act; or - .(b) National Industrial Court,has become binding on the employers and workers to whom it relates, any question arising as to the interpretation of the award, the Minister or any party to the award may make an application lo the National Industrial Court for a decision on that question. (2) On an application under this section, the National Industrial Court shall decide the matter after hearing the parties to the award or, with the prior consent of the parties, without hearing them; and the decision of the Court, which, subject to subsection (3) of section 20, shall be final, and shall be deemed to form part of the original award and shall have effect accordingly. Section 50, on the other hand, provides as follows - The Industrial Arbitration Panel and the National Industrial Court are hereby empowered to make orders when necessary for the appointment of a public trustee for the management of the affairs and finances of a trade union involved in intra-union disputes. The critical section for purposes of determining the jurisdiction of the court regarding this matter is section 14. Section 50 merely empowers the court to do an act if it acts within its jurisdiction. The court must have jurisdiction in order to be able to appoint a public trustee under section 50. This probably explains why both counsel did not make any submissions on section 50 regarding the present preliminary objection. What is relevant, therefore, is section 14. To the respondents, section 14 is only applicable when the parties before the court are the same parties in the original suit sought to be interpreted. But the said section 14 is clear in providing that the Minister of Labour or any of the parties to a binding award sought to be interpreted can approach the court for an interpretation of the award. In hearing the application for interpretation, the court shall decide the matter after hearing the parties to the award or, with the prior consent of the parties, without hearing them. The argument of the respondents is that the parties before the court in the instant case were not the parties in Suit No. NIC/5/93 decided on June 27, 1995. The parties in Suit No. NIC/5/93 were the the Nigeria Civil Service Union as appellants and the Association of Senior Civil Servants of Nigeria as respondents. From all indications, the complaint in this matter, which the respondents brand as an intra-union dispute, is that especially the 1st โ 6th respondents who ought to be members of the Association of senior Civil servants of Nigeria are passing off as members of the Nigeria Civil Service Union; and the applicants are asking whether this should be so given the judgment of this court in Suit No. NIC/5/93. Can this court entertain the matter on the basis of section 14 of the TDA? This remains the question. We think that this court can. This court has held over time that -banch/unit unions can sue and be sued. The applicants in this matter are units, of the Nigeria Civil Service Union, the appellants in Suit No. NIC/5/93. They, therefore, qualify as a party under section 14(1) of the TDA 1990. However, section 14(2) requires that the parties to the NIC award shall be heard by the court when determining the matter. lathe,, Association of Senior Civil Servants of Nigeria, the respondent in Suit No. NIC/5/93., a party to .the present interpretation suit? The answer is in the negative. Is the Association -of Senior Civil Servants of Nigeria entitled to be heard in the instant case? We think so. In consequence, we hereby order that the Association of Senior Civil Servants of Nigeria be joined as a respondent in this suit for the proper determination of the matter. One additional point must be noted. Although the applicants did not base their action on section 20 of the TDA 1990, the said section provides that this court has the jurisdiction to determine questions as to the interpretation of any award made by this court. This provision does not stipulate who can bring the action and who should be heard when the application for interpretation is considered. The applicants are, therefore, right in bringing this matter before the court and activating its original jurisdiction. Although interpretation disputes are usually treated as fresh disputes (see section 17(3) of the TDA 1990 and the case of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees v. Agricultural and Allied Workers Union of Nigeria unreported Suit No. NIC/17M/1995 the ruling of which was delivered on April 8, 2009), they are not required to go through the dispute resolution processes of Part 1 of the TDA as argued by the respondents. This is because they are statutorily caught up under the original jurisdiction of this court as can be seen under sections 14 and 20 of the TDA 1990. The argument of the respondents that the instant case is one of an intra-union dispute and so must go through mediation, conciliation and arbitration under Part 1 of the TDA is not sustainable here. The respondents also argued that this court on March 7, 1996 in Suit No. NIC/8M/95 (Nigeria Civil Service Union v. Association of Senior Civil Servants of Nigeria) declined to consider a similar application given the provisions of the Trade Unions (Amendment) Decree No. 4 of 1996. This is certainly correct. But what the court was not told is that the reason for declining to entertain the matter in 1996 is no longer an issue today as to stop the court from entertaining the instant case. For the avoidance of doubt, we hereby hold that this court has original jurisdiction to hear and determine the instant case; and the Association of Senior Civil Servants of Nigeria is ordered to be the eighth (8th) respondent in this matter. The preliminary objection of the respondents blacksmith and so is hereby dismissed. We make no order as to cost. Ruling is entered accordingly. Hon. Justice B.A. Adejumo President Hon. Justice B. B. Kanyip Hon. Justice V. N. Okobi Judge Judge