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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: March 16, 2015 SUIT NO. NICN/LA/183/2013 BETWEEN PETROLEO BRASILEIRO NIGERIA LIMITED CLAIMANT/RESPONDENT AND 1. PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA (PENGASSAN) 2. MR. BABATOPE STEPHEN OWOYOMI 3. MRS. GRACE OLUWAKEMISOLA TAIWO 4. MR. OLUROTIMI ODUSOTE 5. MRS. FLORENCE NKECHINYERE EVANS-IBEH DEFENDANTS/APPLICANTS 6. MRS. OBIAMAKA APOLONIA ALAKU 7. MRS. OLANIRETI CHRISTIANA ODUGBOYE 8. MRS. OLISAKA OBIDIGBO ONUGBOLU 9. MRS. EBIYEMI OLUKEMI OLAOSUN REPRESENTATION Daniel Obidiegwu for the claimant/respondent. Sola Iji, with Dele Ogunji, Mrs O. Ajibade for defendants/applicants. RULING The claimant filed this complaint against the defendants on April 8, 2013 and by its statement of facts is seeking the following reliefs: i) An interpretation of clause 22 of the Collective Bargaining Agreement (CBA) between the claimant and the 1st defendant to determine the rights and entitlements of the 2nd – 9th defendants who are affected members of the 1st defendant upon the termination of their contract of employment with the claimant due to the redundancy declared by the claimant in accordance with the CBA. ii) A declaration that the Collective Bargaining Agreement (CBA) between the claimant and the 1st defendant makes no provisions for Severance. iii) A declaration that the instant disengagement of the 2nd – 9th defendants in this suit (the affected staff members) under the Collective Bargaining Agreement (CBA) is a redundancy as anticipated in Clause 22 of the CBA, and was conducted in accordance with the provisions of Clause 22 of the CBA. iv) A declaration that the current “work to rule” strike action embarked upon by the 1st defendant and without notice to the claimant is illegal/unlawful/null and void having complied with the extant provisions of the Trade Disputes Act Cap T8 Laws of the Federation of Nigeria 2004. v) A declaration that having received their redundancy benefits in accordance with 22 of the Collective Bargaining Agreement (CBA), the 2nd to 9th defendants are estopped from making further claims for more benefits under any guise either by themselves, the 1st defendant or through other third parties as whatever contractual relationship that may have existed between the claimant and the 2nd to 9th defendant have been deemed extinguished upon receipt by the 2nd to 9th defendants of their redundancy benefits. vi) A declaration that the negotiations on the various clauses in the CBA and in particular clause 22 which ultimately culminated in the execution/implementation of the CBA by the claimant and the 1st defendant be construed as being in compliance Section 20 of the Labour Act Cap L1, Laws of the Federation of Nigeria 2004 on redundancy. vii) An order of perpetual injunction restraining the 1st to 9th defendant their agents, servants, privies howsoever called or described from acting, continuing to act, and/or taking any step(s) that adversely affect the daily operations and business activities of the claimant in this suit. viii) An order of perpetual injunction restraining the 1st defendant from breaching and/or further breaching the Collective Bargaining Agreement dated 1st day of June 2011, between the claimant and the 1st defendant by proceeding or attempting to incite members of staff of the claimant from proceeding on a “work to rule” strike action hereby disrupting the operations of the claimant. By a Notice of Preliminary Objection dated 25th June 2013, brought pursuant to Section 7(3) of the National Industrial Court Act, 2006, Section 1(1) of the Trade Disputes Act, CAP T8, LFN 2004, the defendants/applicants are praying for: 1. An order of this Honourable Court dismissing or striking out this suit for constituting an abuse of court process, same having been brought during the pendency of the proceedings of a trade dispute between the parties. Alternatively: 2. An order of this Honourable Court striking out or dismissing this matter for the reason that court lacks the jurisdiction to hear or entertain the same as presently constituted. 3. And for such further or other orders as this court may deem fit in the circumstance. The grounds upon which the objection is made are as follows: 1. That this suit of the claimant constitutes an abuse of the process of this court, a Trade Dispute proceedings having been commenced before the Minister of Labour and Productivity prior to the instituting of the present action by the claimant, who had notice of same, without awaiting the conclusion of the Trade Dispute. Alternatively: 2. That the original jurisdiction of this Honourable Court is ousted by Section 7(3) National Industrial Court Act, 2006 and Section 1(1), Trade Dispute Act, CAP T8, LFN 2004. The objection is supported by an affidavit of 20 paragraphs sworn to by Marcus Bamidele Ogunji to which is annexed 8 exhibits and a written address. In opposing the objection, the claimant/respondent filed a counter affidavit of 7 paragraphs and a written address. The defendants/applicants filed a reply on points of law. Learned counsel to the defendant raised four issues for determination as follows: 1. Whether or not the dispute subject of this action is a trade dispute within the context of section 48 of the Trade Dispute Act, Cap T8, Laws of the Federation of Nigeria, 2004. 2. Whether or not the processes of a trade dispute had been commenced between the parties before the Honourable Minister of Labour and Productivity on the subject matter of this suit prior to the commencement of this action. 3. Whether or not this suit amounts to an abuse of the judicial process in the light of the proceedings on the trade dispute declared and being entertained between the parties by the office of the Honourable Minister prior to the instituting of this suit by the claimant. 4. Whether or not the original jurisdiction of this court to hear and determine this action is not ousted by Section 7(3) of the National Industrial Court Act and Section 1 (1) of the Trade Disputes Act. Learned Counsel referred the court to Section 48 of the Trade Dispute Act (TDA) CAP T8 LFN 2004 and Section 54(1) of the National Industrial Court Act, 2006 and submitted that the dispute placed before the court is a trade dispute squarely within the ambit of Section 2(1) of the Trade Dispute Act which is an Act of the National Assembly within the purview of Section 7(3) of the National Industrial Court Act. He submitted that there is no disagreement between the parties that there is a dispute between the claimant as an employer and its workers whose interest the 1st defendant represents and defends. He submitted that the dispute has to do with the employment and terms thereof of the members of the 1st defendant in the employment of the claimant. On issue two, learned counsel submitted that the defendants had declared a trade dispute with the claimant on the 18th March 2013 and the Hon Minister of Labour had invited the parties to a meeting in this regard by letter dated April 4, 2013 which the claimant attended. He stated that this action was filed on April 8, 2013 and does not predate the Trade Dispute already before the Minister of Labour. On issue three, he referred to the dispute resolution processes in Part 1 of the TDA particularly Sections 1 (1), 4, 5, 6, 9 and 17 and Section 7 (3) of the National Industrial Court Act 2006 and submitted that it is the dispute resolution processes in Part 1 of the TDA that are contemplated in Section 7(3) of the NIC Act which provides that “Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the processes of conciliation or arbitration before such matter is heard by the Court.” He submitted that this Court has consistently held that the provisions of Part 1 of the Trade Dispute Act must be complied with in matters of Trade Dispute. He cited Mix & Bake Flour Mills Industries V. NUFBTE [2004] 1 NLLR (Pt. 2) 247, ASSBIFI V. Union Bank of Nigeria Ltd [2004] 14 NLLR (Pt. 37) 6, Auwal Adamu & Ors V. Jalal Ludeen & Ors [2009] 14 NLLR (Pt.38) 215, Corporate Affairs Commission V. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees [2004] 1 NLLR (Pt. 1) 1., NUPENG .V Oil & Industrial Services Ltd (unreported) Suit No. NIC/LA/20/2009 delivered on April 21, 2010, HYDRODIVE Nigeria Ltd V. PENGASSAN (unreported) Suit No. NIC/LA/13/2012 delivered on June 28, 2012. He submitted that this present suit amounts to an abuse of court process robbing the court of jurisdiction to hear this matter in view of the existence and entire circumstances of the Trade Dispute currently before the Minister of Labour and Productivity. He contended that the actions of the claimant are in bad faith and brought to frustrate the proceedings before the Hon Minister of Labour and cause a delay in the course of justice. He cited Tomtec Nigeria Limited V. Federal Housing Authority [2010] All FWLR (Pt. 509) 400, Saraki V. Kotoye [1992] 9 NWLR [Pt. 264] 156, Chief Victor Umeh & Anor V. Prof. Maurice Iwuh & Ors [2008] All FWLR (Pt. 418) 362 and Akinsegun Babalola & Ors V. Adamu Rufus [2010] All FWLR (Pt. 515) 309. On issue 4, he referred to Section 7(3) of the National Industrial Court, Section 2(1) and Section 4 of the Trade Dispute Act and contended that the manner in which the claimant approached the court not being an appeal against any proceedings initiated by the Minister, the Minister has not been given an opportunity as mandatorily required to exercise his discretion in the resolution of this suit citing Madukolu & Ors V. Nkemdilim & Ors [1962] 25 SC 34, Ndaeyo V. Ogunnaya [1997] 1 SC 11, National Bank of Nigeria Ltd V. Shoyoye [1977] 5 SC 181 and A.G Oyo State V. NLC [2004] NLLR (Pt. 3) 616, Hon Justice Raliat Elelu-Habeeb v A-G Federation [2012] 2 SC (Pt 1) 145. He submitted further that even though the Third Alteration Act, 2010 confers exclusive jurisdiction on this court over labour and trade union causes it still is not the intendment of the Constitution to confer original jurisdiction upon the court in matters of trade disputes, as the Trade Dispute Act remains in force and its relevant provisions as well as those of the National Industrial Court Act in this regard remain. He submitted that the jurisdiction of this court in relation to trade disputes is not original but an appellate or referral jurisdiction citing Ogunyale & Ors v Globacom [2009] 14 NLLR (Pt 39) 434. He urged the court to grant the prayers of the defendants by striking out or dismissing this suit. Learned counsel to the claimant raised two issues as follows: 1. Whether this court has the requisite jurisdiction to entertain this action as presently constituted. 2. Whether this action amounts to an abuse of the process of this court. He submitted on issue one that this court has jurisdiction to entertain this action as presently constituted based on the fact that the statutes creating this court give exclusive jurisdiction to entertain all labour and employment related disputes referring to Section 7 of the National Industrial Court Act and Section 254C of the Third Alteration Act, 2010. He stated that at the meeting with the representatives of the Minister, counsel to the claimant brought to the attention of the meeting the pending action in respect of the alleged dispute before this court which makes the matter subjudice. He argued that the mere delivery of a letter to the Minister does not trigger the commencement of a trade dispute proceedings before the Minister of Labour. He contended that what the applicants referred to as the commencement of the proceedings before the Minister is a meeting scheduled by the Minister at the instance of the applicants. He noted that the applicants made heavy weather of Section 2(1) of the Trade Dispute Act as having ousted the jurisdiction of this court to hear and determine this dispute and went on to submit that Section 21 of the Trade Dispute Act referred to in Section 2(1) has been repealed by Section 53 of the National Industrial Court Act. Learned counsel argued that the applicants’ submission that the respondent has not fulfilled the procedures set out in Section 4, 5 and 6 of the TDA is misplaced. He referred to Section 16 (1) of the TDA which provides: “Notwithstanding anything in the foregoing provisions of this Act, the Minister or any party to a collective agreement may make an application to the National Industrial Court for a decision of that Court as to the interpretation of any term or provision of the collective agreement” and submitted that the expression ‘notwithstanding’ has been defined and interpreted as a term of exclusion which has effect of rendering any other provision useless and making the particular provision in which it is used superior and binding. He relied on Nigeria Deposit Insurance Corporation v Okem Enterprises Ltd [2004] 10 NWLR (Pt. 880) 107, Kotoye V. Saraki [1994] 7 NWLR (Pt. 357) 414. He submitted that the use of the term “notwithstanding” in Section 16 excludes the operation of Section 4, 5 and 6 of the TDA. He argued that this action seeks an interpretation of clause 22 of the collective agreement dated 1st July, 2011 and Section 16 of the TDA gives the Minister or parties the right to approach this Court for an interpretation of a collective agreement and nothing more. It was his submission that the attitude of the Courts is not to encourage any provision of the law that tends to limit the exercise of judicial powers expressly conferred by the Constitution, citing Njikonye v MTN Nigeria Communications Ltd [2008] 9 NWLR (Pt. 1092) 339. Learned counsel submitted that the combined provisions of the Trade Dispute Act, Section 254C(1)(j)(i) of the 1999 Constitution and Section 7(1)(c)(i) of the National Industrial Court Act actually vests the court with exclusive jurisdiction to entertain this suit. That the cases relied upon by the applicant did not deal specifically with the power of this court to entertain an action seeking an interpretation of a collective agreement. He submitted that before any party to a dispute can refer a dispute to arbitration there must be in existence an agreement to refer the dispute to arbitration and reference to a statutory provision requiring parties to arbitrate does not constitute an arbitration agreement within the meaning of Section 1 of Arbitration and Conciliation Act. Learned counsel submitted on issue two, that this suit does not amount to an abuse of court process. That by the combined effect of Sections 5 and 7 of the TDA, the Minister has the power to make a reference of the alleged dispute to Conciliation under Section 8, Industrial Arbitration Panel under Section 9 and a Board of Inquiry under Section 33 of the Act. He submitted that to trigger the dispute resolution process which the applicants envisage, the Hon Minister is expected to in writing inform the parties of his apprehension of a trade dispute and state the steps he proposes to take in resolution of the dispute. He submitted that this is the commencement of the process and not a notification of a trade dispute or letter of invitation as the applicants would have the court believe. Counsel argued that the applicants have not placed before the court any evidence of such notice in writing or the option exercised by the Minister in exercise of his powers in Section 5(2) (a) –(c) of the Trade Dispute Act. He submitted that the law is settled that an abuse of court process is an issue of fact which must be sufficiently placed before the court by means of affidavit evidence; and having not placed such facts to establish abuse the court has a duty to discountenance the applicant’s arguments in this respect citing International Bank for West Africa v Sasegbon [2007] 16 NWLR (Pt. 1059) 195. He submitted that abuse of court process is the improper use of the process of the court to the annoyance of the other party to the suit and that the applicants have not established before this court the pendency of another suit before another court with same subject matter, seeking similar reliefs and same parties. He urged the court to dismiss this application. Replying on points of law, counsel to the defendants argued that the exclusive jurisdiction conferred on this court is appellate as far as trade disputes are concerned. He submitted that based on established practice and procedure of trade disputes the only means of reporting a trade dispute is by submission of the Form TD/3 to the Honourable Minister under the Trade Dispute Act and that by the response to same by the Minister by way of invitation of the parties, the provisions of Part 1 of the Trade Dispute Act had been set in motion between the parties. He submitted that by Section 12(1) of the Trade Dispute Act, the operation of the Conciliation and Arbitration Act is expressly excluded from matters under the TDA citing Ogunyale & 64 Ors v Globacom [2009] 14 NLLR (Pt. 39) 399. He then urged the court to dismiss this suit. Having carefully considered the processes filed, the facts, submissions made and authorities referred to, I find that the parties are in agreement that a trade dispute has arisen as defined in Section 48 of the Trade Disputes Act CAP T8 LFN 2004 and Section 54 (1) of the National Industrial Court Act 2006. The issue now to be resolved is whether the interpretation jurisdiction of this court can be activated by the claimant/respondent. The defendants position is that the jurisdiction of this court in respect of a trade dispute is appellate; and that by instituting this action, the Hon Minister of Labour has not been given the opportunity as provided under section 8, 9, 17 or 33 of the Trade Disputes Act (TDA) CAP T8 LFN 2004 to exercise his discretion in the resolution of this dispute which is the subject matter of this action. The claimant’s position is that this action merely seeks an interpretation of clause 22 of the collective bargaining agreement between the 1st defendant and the claimant and as such it can access the court directly without going through the dispute resolution process in Part 1 of the TDA. Section 16(1) and (2) of the Trade Disputes Act provides as follows: (1) Notwithstanding anything in the foregoing provisions of this Act, the Minister or any party to a collective agreement may make an application to the National Industrial Court for a decision of that court as to the interpretation of any term or provision of the collective agreement. (2) On an application under this section the court shall decide the matter after hearing the Minister or, as the case may be, the parties to the collective agreement, or with the consent of the Minister or the parties, without hearing them; and the decision of the court shall be final and conclusive with respect to the interpretation of the term or provision of the collective agreement concerned. The word “Notwithstanding” has been interpreted by the courts to mean “in spite of”, “irrespective of” or “disregarding”. See Olatunbosun v. NISER [1988] 3 NWLR (Pt. 80) 25 and Kotoye v. Saraki [1994] 7 NWLR (Pt. 357) 414. This means that in spite of an ongoing dispute resolution process provided in Sections 1 to 15, Part 1 of the TDA, the Minister of Labour or any of the parties to a collective agreement can still approach the court and activate its interpretation jurisdiction. Section 254C (1) (j) (i) of the 1999 Constitution, as amended, confers this court with exclusive jurisdiction “relating to the determination of any question as to the interpretation and application of any collective agreement.” Section 7 (1) (a) of the NIC Act has conferred the court with exclusive jurisdiction relating to labour, including trade unions, industrial relations, environment and conditions of work while Section 7 (1) (c) confers exclusive jurisdiction relating to the determination of any question as to the interpretation of any collective agreement. Now, Section 7 (3) of the NIC Act then goes on to provide that: Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the court. I agree with the submissions of learned counsel to the defendants/applicants that it is the Trade Dispute Act that is contemplated in Section 7 (3). Learned counsel to the claimant/respondent has referred to Sections 1 and 37 of the Arbitration and Conciliation Act and submitted that there is no arbitration agreement between the parties. By the provisions of Section 12 of the TDA, the Arbitration and Conciliation Act do not apply to proceedings of an arbitration tribunal appointed under the Act. The provision for interpretation of any collective agreement in the NIC Act 2006 is Section 7 (1) (c). The law is settled that where a statute mentions specific things or persons, those not mentioned are not intended to be included. See Obi v INEC [2007] 11 NWLR (Pt 1046) 449. Subsection (1) (c) is not mentioned in Section 7 (3) and is therefore not intended to be included. By the combined effect of Sections 16 (1) & (2) of the TDA and Section 7 (3) of the NIC Act 2006, interpretation of a collective agreement has been taken out of the dispute resolution process of conciliation, arbitration or referral to a board of inquiry. I therefore hold that the interpretation jurisdiction of this court is original. This action has been commenced by way of complaint with a statement of facts consisting of 36 paragraphs and not by originating summons as provided in Order 3 Rule 5A of the NICN Practice Directions 2012 in a matter for interpretation. A careful look at the statement of facts reveals that there are triable issues in the nature of a trade dispute. The reliefs sought by the claimant has been reproduced above and a close look shows that the first relief only seeks an interpretation of clause 22. The declaratory and injunctive reliefs being sought as ii, iii, iv, v, vi, vii and viii goes beyond a mere interpretation of clause 22. They are reliefs that flow from the substantive trial issues and are intended to give life or effect to the judgement in the event that the action succeeds. This court has held severally that its interpretation jurisdiction cannot be activated to entertain trial issues. The affidavit evidence before the court is that a trade dispute was declared and reported to the Hon Minister who invited the parties to a meeting. The invitation of the Hon Minister set in motion the dispute resolution processes of Part 1 of the TDA. I find that this action as presently constituted is a trade dispute. Section 1 (1) of the TDA provides that the provisions of Part 1 shall apply where there is a trade dispute. It is therefore compulsory and a condition precedent for the dispute resolution process in Part 1 of the TDA to be exhausted before the claimant can approach this court. See Madukolu & Ors V. Nkemdilim & Ors [1962] 25 SC 34, Ogunyale & 64 Ors v Globacom [2009] 14 NLLR (Pt. 39) 399. I am of the firm view that the claimant simply seeks to use the interpretation jurisdiction of the court to side track the dispute resolution processes of Part 1 of the TDA. The position of the law in section 7 (2) (a) & (b) of the TDA is that where the dispute remains unsettled, the Minister of Labour “may proceed to exercise such of his powers under section 8, 9, 17 or 33 of this Act as may appear to him appropriate”. The Hon Minister has been prevented from exercising his discretionary powers by the institution of this action by the claimant. I however, do not find this action to be an abuse of the process of court as submitted by the applicant’s counsel. Rather, I find the action to be premature due to non compliance with Part 1 of the TDA. The court is deprived of jurisdiction to entertain this matter. I hold that this court can only entertain this action in its appellate jurisdiction. It is hereby struck out. I make no order as to costs. Ruling is entered accordingly. ______________________________ Hon Justice O.A.Obaseki-Osaghae