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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge 1 Ion. Justice V. N. Okobi - Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: JULY 22, 2009 SUIT NO.NIC/46/2007 BETWEEN National Union of Petroleum and Natural Gas Workers……………………………………………………..Applicant/Respondent AND Gicco Prakla Nigeria Ltd………………………………………………..Respondent/Applicant REPRESENTATION Ogudu Eric, for the applicant/respondent Festus Onyia, for the respondent/applicant RULING The applicant/respondent had filed an action against the respondent/applicant praying for the following reliefs - 1. An interpretation of the collective agreement' entered into between the applicant/respondent and the respondent/applicant on 29th June 1993 as to whether the purported closure of Party 773 and the purported termination of the applicant's members who are junior staff in Party 773 by the respondent is in accordance with the said collective agreement. 2. An interpretation as to whether the communique issued and signed on 20th day November of' 1993 by both parties as binding on4hei applicant/respondent and the respondent/applicant for the benefits of members of the applicant/responds at party 773. 3 an interpretation of the Trust Fund Deed duly executed by the respondent/applicant as to whether the applicant/respondent members at party 773 Deed under the respondent/applicant are entitled to benefit under the,said Trust Fund Deed. 4. A declaration that the applicant/repondent’s member under Party 773 are entitled to allthier allowances and benefirts as contained in the various communiqués and collective agreement between the applicant/respondent and the respondent/applicant. At this court's sitting of January 22, 2009; 'both counsel in the matter agreed to argue the case on record by filing written addresses giyen that the action involved the interpretation of documents; and the court made the necessary orders giving effect to the agreement of counsel. On February 11, 2009, the applicant/respondent filed its written address in the mailer. Instead of the respondent/applicant filmy, its reply written address as agreed by it and ordered by the court, it instead filed a motion on notice on March IK, 2009 to arrest the order of (lie court given on January 22. 200') as per the agreement, of both counsel in I he matter. The motion is brought pursuant, to Order II Rule 1(1) of the National Industrial Court Rules 2007 and under the inherent jurisdiction of the court. The motion is supported by a 10-paragraphcd affidavit sworn to by Festus Onyia, the counsel to the respondent/applicant. Specifically, the respondent/applicant's motion is praying for- 1. An order setting aside the order of this court made on the 22ml January 2009 directing parties in this suit to file written addresses in this suit. 2. And for such further or other order(s) as this court may deem fit to make in the circumstances of this case The grounds upon which the motion is based are 1. Thai this court lacked the jurisdiction to make the said order of 22nd January 2000. 2. That the said order of 22 January 2009 violated section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. The order of this court given on January 22, 2009, a product of the agreement of both counsel, and which is presently sought to lie arrested by the respondent/applicant is as follows- By agreement, the counsel to both parties are to argue the matter on record. In this regard, the applicant's counsel is hereby given 3 weeks, as requested, to file and serve its written brief. The respondent is then given 3 weeks, as requested too, and after receipt of the applicant's written address, to file and serve its reply written address. Thereafter, the applicant is given 7 days to file and serve its reply on points of law, if any. In moving its motion, counsel to the respondent/applicant contended that there is no law which empowers this court to hear a substantive suit by written submissions without conducting a trial of the issues on some crucial aspects of the claims. That one of such issues is whether or not the respondent at gunpoint forced the applicant/respondent's members to accept their redundancy package, referring the court to paragraph 17 of the applicant/respondent's statement of facts. The second is whether or not the applicant/respondent's members have been forcefully paid their redundancy package, referring the court to paragraph 18 of the applicant/respondent's statement of facts and paragraph 6(iii) of the statement of defence. A third is whether or not there was a trust deed between the applicantyrespondent and the respondent/applicant, referring the court 1o paragraph 19(b) of the applicant/respondent's statement of facts and paragraph 6(ii) of the statement of defence. Finally, whether or not the respondent/applicant was at any lime bought over by any other entity so as to entitle the applicant/respondent's members to buy-over benefits. The respondent/applicant then went on to refer the court to (he case of Imana v. Robinson [1979] All NLR I at 9. To the respondent/applicant, by not hearing the parties, its right to fair hearing has been breached. That denial of fair hearing occurs when by the procedure adopted by the parties, a party has been denied the opportunity of presenting his case or to call evidence, referring the court to the case of Bamgboye v. University of Ilorin [1999] 3 NWLR (Pt.490) 675 The respondent/applicant continued that even in the applicant/respondent's written address, one of the issues amongst others formulated is whether there were collective agreement, communiques, trust deed:, amongst the parties, referring to relief 4 of the applicant/respondent's claims and the cases of Eweka v. Bello [1981) I SC 101 at 103 and Adekoke Motors Ltd v. Adesanya [1989] 3 NWLR (Pt.109) 250. The respondent/applicant then concluded by urging the court to revisit and reconsider the orders it made on January 22. 2009 as being unconstitutional. In opposition to the motion of the respondent/applicant, The applicant/respondent filed a 13-paragraphed counter-affidavit dated May 19, 2009. The contention of the applicant/respondent is that this court is a competent court of record and that section 6(6)(a) of the 1999 Constitution gives this court both judicial and inherent powers. That the inherent powers of this court include the power to make orders for its practice directions. That it is worthy to note that the said order made by this court directing the parties in this suit lo file and serve written addresses for the consideration of the court of which the respondent/applicant in this case seeks to set aside is not an interlocutory order but a practice direction of this court which forms part of the rules of this court. The applicant/respondent continued that no party or counsel has the right or can he heard questioning the validity or otherwise of the practice direction. That the much the party can do is to ask for the interpretation of the rules or practice direction. That this follows that every party or counsel appearing before the court is under legal obligation to obey the rules of the court or practice direction. That failure to comply with the rule or practice direction attracts punishment. The applicant/respondent then referred the court to the case. Ogundimu v.Kasunmu [2006] all FWLR (Pt. 326) 207 at 210 Ratio 5. The applicant/respondent continued that besides, the issue for determination in (his suit is the interpretation of a written document, a collective agreement, which does not require a substantial dispute or oral argument because the facts are contained in the document sought to be interpreted. To the applicant/respondent, it is trite law and a practice procedure that in circumstances that require the application of a written document, it does not necessarily require oral evidence but a written address. That this court was quite right in ordering written addresses. The applicant/respondent continued that it is important to note that all the authorities; cited by the respondent/applicant's counsel in the attempt to support his motion are all wrong and inapplicable in this circumstance and so go to no issue. The applicant/respondent went on to contend that section 36(1) of the 1999 Constitution cited by the respondent/applicant alleging absence of fair hearing does not apply in this case as the court never denied any of the parties fair hearing. Thai by ordering written addresses means that the court has placed both parties at the same equilibrium given them equal opportunity and fair hearing, and any of the parties who fails to make use of the opportunity cannot be heard to complain. The applicant/respondent then urged the court to discountenance the motion, dismiss it and award punitive cost against the applicant as the claimant has been overreached and sustained heavy cost by this application in terms of traveling to defend the application. In reply on points of law, the respondent/applicant submitted thai it is not a correct statement of law that the order of this court made on January 22, 2009 forms part of the rules of this court or practice direction of this court. That by section 36 of the National Industrial Court Act 2006, it is the President of the Court that is empowered to make rules and practice directions. That the authority of Ogundimu v. Kasunmu, supra, is, therefore, irrelevant. On section 35(1)(g) of the Trade Disputes Act Cap. 432 ITN 1990, the respondent/applicant submitted that speedy trial, which is the purpose of that subsection, cannot be sacrificed on the altar of fair hearing as enshrined in section 36 of the 1999 Constitution, citing Ariori v. Elemo [1983] All NLR 1 at 14, 15 - 16 and 23. The respondent/applicant concluded by urging the court to uphold its submissions. This court has been called upon by counsel to the respondent/applicant, Mr. Festus Onyia, to arrest its order given on January 22, 2009 wherein this court ordered that parties should file written addresses in the substantive matter, an application for interpretation of certain documents. This court under section 7(1)(c) of the National Industrial Court Act 2006 and section 15 of the Trade Disputes Act Cap. 432 LFN 1990 has original jurisdiction and the power to interpret the documents listed therein. It is trite learning that the question of construction of especially contractual documents is often a question of law. Consequently, the construction/interpretation of a collective agreement is a question of law. Being a question of law, the determination of any question as lo interpretation can effectively be made by written addresses from the parties. Appreciating this point, counsel to the parties in this matter agreed to, and the court ordered, the filing of written addresses on January 22, 2009. Surprisingly, counsel to the respondents/applicant wants the order of this court arrested. Even when the said counsel's attention was drawn to the proceedings of court of the said January 22, 2009, counsel remained adamant, insisting on being heard. This yields to the question whether the application to arrest the order of this court is not vexatious and time wasting. In the first place, counsel came under Order 11 Rule. 1(1) of the National Industrial Court Rules 2007, which provides as follows - Where by these Rules any application is authorized to be made to the Cowl, such application may be by motion supported by affidavit or by notice, and shall stale under what rule of Court or Law the application is brought. Every motion or notice shall be served within 5 days of filing. One wonders how counsel would rely on this Rule as the basis for the prayer sought i.e. the prayer to arrest the order of this court made on January 22, 2009. Counsel did not indicate the exact rule which authorizes him to arrest the said order of this court; instead our attention is only drawn to the rule which states that an applicant must state the rule under which an application is made. If Order 11 Rule 1(1) of the NIC Rules 2007 is the basis for bringing the present application, then it is baseless and of no consequence. The only logical explanation is that, knowing that the application to arrest the order of this court is baseless in the first place, counsel merely hung on the said Order 11 Rule 1(1), knowing that there is no Rule that actually justifies his application. The grounds given by the respondent/applicant for this application are two: that the court lacks the jurisdiction to make the order and that the order violates section 36(1) of the 1999 Constitution. Does this court lack the jurisdiction to order the filing of written addresses in a matter? To answer this question in the affirmative would be the most preposterous thing to do. Indeed, having to say that Ibis court lacks the jurisdiction to order the filing of written addresses clearly shows how vexatious and unreasonable the application of counsel is. Section 35(1)(g) of the TDA 1990 provides thai this court can generally give such directions and do all such things as are necessary or expedient for dealing speedily and justly with the matters before it. This provision, aside from enjoining speed in the determination of matters before the court, also empowers the court to give such directions as arc necessary or expedient in determining matters before it. So, if Ibis court thinks that filing of written addresses in an interpretation suit, and agreed to by both counsel in the matter, is necessary and expedient, is it open to counsel to state that the court acted outside its jurisdiction? Nothing can be further from the truth. Is the order to file written addresses contrary lo section 36(1) of the 1999 Constitution as to deprive the respondent/applicant the right to fair hearing? Counsel to the respondent/applicant seems to think so. Section 36(1) of the 1999 Constitution provides as follows - In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a "person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. The question that arises given this constitutional provision is that in ordering the filing of written addresses has the respondent/applicant been denied lair hearing? Will the respondent/applicant not lie heard in the determination of the interpretation of-'the documents in issue in this case'? In ordering the filing of written addresses, has the applicant/respondent been given an undue advantage over and above the respondent/applicant? We do not think that the respondent/applicant has in anyway whatsoever been, or will be, denied fair hearing or unduly disadvantaged by the order to file written addresses in the determination of the application for interpretation. For counsel to say that the respondent/applicant will be denied fair hearing under section 36(1) of the Constitution, to say the least, is unwarranted and suggestive thai justice will not be served, which is inconsistent with the guiding principles upon which this court was established and certainly not in the character of the court. We do not, therefore, think that the application to arrest the order of this court requiring the filing of written addresses in the determination of the interpretation of the documents in issue in this matter has any merit. The application is simply meant to waste the time of the court in the determination of the matter at hand. We do not think that applications such as this should be encouraged by court. In consequence, the implication to arrest the order of this court made on January 22, 2009 is hereby dismissed. The order to file written addresses made by this court on January 22, 2009 stands and is hereby reaffirmed. Cost is put at Twenty Thousand Naira (N20,000) payable to the National Union of Petroleum and Natural Gas Workers (NUPENG) before the next adjourned date. 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 0. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge