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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 28th January, 2014 SUIT NO: NICN/ABJ/142/2013 Between: Anambra State Government Claimants AND Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) and 2 Ors Defendants REPRESENTATION Parties absent; Chibuzor Egenduka Esq. For the appellant/respondent Ojonuma Miachi (Miss) holding the brief of Chiazor Ikoho for the 2nd defendant. Blessing Ekunife (Miss) for the 3rd defendant; counsel to the 1st respondent/applicant absent. JUDGMENT By a notice of preliminary objection dated and filed on the 19th of July 2013, the first defendant/applicant raised objection to the appeal and a motion for stay of execution of Industrial Arbitration Panel ( IAP) award delivered in suit No. IAP/HB/3787 dated the 26th of March 2012. The objection which is brought pursuant to Section 13 (2) and 4 of the Trade Dispute Act Cap T8 Laws of the Federation of Nigeria 2004 and under the inherent powers of this court is predicated on the following grounds; 1. The notice of appeal filed by the appellant dated and filed on the 6th day of June 2013 is incompetent by virtue of section 13 (2) and of the Trade Dispute Act Cap T8 laws of the Federation of Nigeria 2004 in that the condition precedent to institute an appeal was not Fulfilled couple with the fact that the time allowed by law for the filing of such an appeal against the IAP award had lapsed. 2. The appeal as presently filed and constituted by the appellant in this suit is an abuse of court process as an order Nisi had been granted by this court in suit No. NIC/ABJ/120/2013 at Enugu Division wherein the process of enforcement of the said award being appealed against is presently pending in a garnishee Proceedings. The objector supported his motion with a written address dated the 19th of July 2013 wherein he urged the court to strike out the entire appeal In the said written address counsel to the defendant/ applicant Miss Abiodun Akanni Submitted by raising and formulating two issues for determination namely (1) Whether or not this Honourable court has the jurisdiction to adjudicate on the subject matter of this appeal (2) Whether or not the appellant/Respondent’s Notice of appeal and motion on Notice dated the 6th of June 2013 is an abuse of court process and therefore, incompetent. On issue one Miss Akanni submitted that the court is competent when the matter before it is initiated by due process upon the Fulfillment of any condition precedent to the exercise of jurisdiction. Counsel called in aid the case of Madukolu Vs. Nkedilim 1962 2 SC NLR 341. Counsel submitted further that the notice of appeal which is the life wire of any appeal, is incompetent in the instant case as this appeal which is in breach of section 13 (2) and 4 of the Trade Dispute Act Cap T 8 Laws of the Federation of Nigeria 2004. Counsel further submitted that the right of appeal and other ancilliary rights such as filing of the brief of arguments are statutory and once the condition precedent to the exercise of those rights are not fulfilled, the appeal cannot be well founded. Counsel cited the case of National Union of Local Government Employees Vs. Local Government Service Commission Abia State 2007 7 NLLR Pt. 17 PP. 152-153 ration 3 to buttress her argument that once the appellant did not file any notice of objection within 7 days of the award to the Honourable minister of labour as required by section 13 (2) of the Trade dispute Act LFN 2004, it is assumed that there is no objection to the IAP award and consequently the right of appeal over the same subject matter is forfeited. Counsel contended further that due to the fact that there is no objection to the award by the appellant, the Honourable minister of labour and productivity confirmed and published the award in S.I. No. 57 al paragraph B1453 – 1454 in the Federal Republic of Nigeria official Gazette No. 84 Vol. 99 government notice no 253 dated 30th November 2012. On the meaning and what constitute proper notice, counsel referred the court to the case of Honourable Minister of Environment Vs. AAwuun 2010 18 NLLR Pt. 52 at 343 paragraph G-H where it was held that proper notice means a notice given within the time prescribed by the minister in accordance with section 12(2)b of the Trade Dispute Act LFN 2004. This notice must also confirm to the prescribe manner. Counsel submitted further that an appellate jurisdiction of this court cannot be invoked through an incompetent notice of appeal. He cited the case of Clev Josh Ltd Vs. Tokimi 2008 13 NWLR Pt. 1104 CA 422 at 427 ratio 2. Oruruo Vs. Ugwu 2007 7 NWLR Pt. 1033 CA 225 at 230 paragraphs C-D. Counsel also urged the court not to consider any application for stay of execution of judgment since there is no valid pending appeal. On issue 2 formulated for determination by the counsel it was submitted that the processes of executing the IAP award over which the purported appeal was based had commenced at NIC Enugu division presided over by Hon. Justice Auwal Ibrahim wherein on the 24th of May 2013, an order Nisi was granted in a garnishee proceeding pending in the said court. Counsel drew this court attention to the fact that this garnishee order Nisi was granted before the notice of appeal was filed by the appellant on the 6th of June 2013. Counsel cited the case of Emordi Vs. Kwentoh 1996 2 NWLR Pt. 433 656 at 681 and Nworgu Vs. Njoku 2001 14 NWLR Pt. 734 CA 539 at 549 to anchor his submission on the point that this court should not assume the position of a supervisor over a court of coordinate jurisdiction that granted the garnishee order Nisi. Counsel urged this court to hold that the appellant has improperly use the court process through this appeal to the annoyance of the other parties in bad faith therefore constituting an abuse. Counsel cited and relied on the case of Ette vs. Idoho 2009 8 NWLR Pt. 1144 (P. 610). Arubo Vs. Aiyeleru 1993 3 NWLR (Pt. 280) 126. The objector also urged the court to discountenance the appeal and the motion for stay of execution on the ground that it was meant to mislead the court as the appellant knew very well of the grant of Garnishee order Nisi but yet came to court to file this appeal without disclosing such facts. In His reply counsel to the appellant/ respondent Mr. Chibuzo Ezenduka filed a reply by way of a written address dated the 18th of October 2013 wherein he raised two issues for determination (1) Whether or not this Honourable court has the jurisdiction to adjudicate on the subject matter of this appeal (2) Whether or not the appellant/respondents notice of appeal and motion on notice dated the 6th of June 2013 is an abuse of the court process and therefore, incompetent. In arguing issues one counsel in extension quoted and relied on sections 7 (1) (a) (i) and section 7(4) NIC Act 2006, counsel further referred this court to sections 21 and 22 of the Trade Dispute Act Cap T 8 Laws of the Federation of Nigeria 2004. Counsel submitted that appeals lie as of right from the IAP to this court as of right on labour and Trade dispute and industrial relation matters as no condition precedent is attach to such exercise of right of appeal by an aggrieved party. In this context, he urged the court to give a liberal and literal interpretation to the words used in the NIC Act Cap T8 laws of the Federation of NIC 2006 when such statutory provisions are unambiguous and clear. Counsel cited the case of owners of MV Arabella Vs. NALC 2008 All FWLR Pt. 443 page 1208 at 1219 paragraph 21. Counsel contended further that appeal as of right in the context of the relevant provision of the statute in issue means the appellant need not reply or await the decision of the Honourable minister of Labour, it is his further contention that it is the statute that created the court that confers that court with jurisdiction; he buttress this submission with the case of Oloba Vs. Akereja (1988) 3 NWLR Pt. 84 page 508 at 510. It is the submission of Mr. Ezenduka that the provision of section 13 (4) of the trade Dispute Act did not say that the appellant need the consent of the minister to appeal neither does it make it a requirement for the appellant to get confirmation of award or otherwise before launching an appeal to this court: Confirmation of appeal, he contended cannot be equated with right of appeal. It is counsels’ further submission that subjecting rights of appeal to the ministers judicial capacity of confirmation of award means the appeal is no longer as of right. Counsel contended also that section 22 of the Trade Dispute Act Cap T8 LFN 2004 is later in time to section 13 of the same law and this section 22 afore said did not lay down any condition precedent before an aggrieved party to an Industrial Arbitration Panel (IAP) award can lodge an appeal to the National Industrial court. Counsel submitted that section 14 (i) of the TDA Cap T8 LFN 2004 refers to dispute and not an award which presupposes that the minister can only refer a dispute to the National Industrial Court (NIC) and not an award. Counsel also opined that where section 13 (2) of the TDA Cap T8 Laws of the Federation of Nigeria 2004 is in apparent conflict with section 22 of the same law which grants right of appeal without leave of court, the later provision of the said law shall take precedent and priority as the latter has modified the earlier. Counsel cited the case of NPA Superannuation funds and Another Vs. Fasel Services Ltd and Ors. 2002 FWLR Pt. 97 PAGE 719 AT 723. On issue 2 formulated by Mr. Ezenduka which borders on abuse of court process, counsel submitted that the appeal in this suit and the motion for stay of execution even though having the same subject matter with the enforcement proceedings pending at Enugu division of NIC National Industrial Court cannot amount to abuse of court process as an appeal can still progress and be ventilated and prosecuted even where a judgment has been enforced. The Order Nisi which was obtained by the respondent he contended further, was merely to stop the movement of the appellant’s fund as the garnishee order Nisi in question was not even against the appellant but the bank. This appeal pending in this court, counsel contented does not mean that court is being invited to sit on appeal over the same matter as the said order Nisi in the garnishee proceedings is an issue in appeal No CA/E/432/2013. Counsel further submitted that there is no abuse of court process in this suit as this court is not sitting as an appellate court over the garnishee proceedings, it is the opinion of Mr. Ezenduka, Counsel to the appellant that where a writ of attachment have been issued and a motion of stay of execution have been Served it is incumbent upon the judgment creditor to retrieve the writ of attachment through the assistant Registrar. So also he submitted, the applicant/respondent in this preliminary objection is suppose to apply to the Enugu division of this court to apply for stay of proceedings of the enforcement/Garnishee process upon the receipt of the motion for stay of execution in this suit. Counsel supported this submission with the case of O.U. R. and Company Ltd Vs. Enyinnaya Dick and Anor 2004 All FWLR Pt. 202 page 1941 at 1944 ratio 2. Counsel to the 2nd respondent Mr. Aduojo Abah Holding the brief of Chiazor Ikoku Esq. who did not file any written address aligned himself with the submission of Miss Aboidun Akanni on point of law; He submitted that the provisions of the TDA Cap T8 LFN 2004 should be read in conjunction with the provisions of the NIC Act 2006 as the NIC Act 2006 did not repeal the provision of the TDA Cap T8 LFN 2004. He further contended that section 12(4) of the TDA LFN 2004 is a condition precedent to any aggrieved person in that he is required by law to raise an objection within 7 days of the given of the award by the I.A.P. to the minister of labour and where he fails, it means that party has elected not to context an award; he submitted that in labour and trade dispute context appeals is a dispute and where a party fails in that regard, he cannot be said to have fulfilled a condition precedent to an appeal of this nature. Counsel to the 3rd respondent Mr. Oayeaka Emeka, in reply on point of law as he did not file any written address also, aligned himself with the submission of Miss Abiodun Akanni, counsel to the first respondent /applicant. Counsel contended that the community reading of section 14 (1) (2) (B) of TDA Cap T8 LFN 2004 envisages a specialized kind of appeal in the sense that if an appeal is not captured by chapter iv of the constitution, the appeal if any should be dismissed; this appeal is not captured under the fundamental right. Counsel submitted further that since Section 14 (1) TDA LFN 2004 Cap T8 has not been complied with, the appeal as constituted herein cannot be entertained by the court; moreover, counsel submitted, that dispute is an appeal and an appeal in the context of trade dispute is an appeal. Since the minister has a role to play, he contended, and he has not been allowed to play that role, the appeal should be dismissed counsel called in aid the cases of Dingyadi Vs. INEC 2010 4-7 SC pt. I. Counsel finally urge the court to uphold the objection. I have thoroughly and carefully gone through and painstakingly considered all the arguments and submissions advanced by the respective counsel in support of their positions. The cardinal issue for determination in the objection is: “Whether or not this Honourable court has the jurisdiction to entertain and consider the appeal and the stay of execution of the appellant as constituted in view of the facts and circumstances of this case” There is no doubt that the critical and central issue herein is the fact that the jurisdiction of this court is being called to question. Although there are variegated ramifications of jurisdiction but the general principle remains the same. It is on this general principle that will form the pedestal or platform for this ruling. It is the claim in any particularly case that determines the court in which jurisdiction is vested. In other words, it is the plaintiff or claimant that cloths the court with or denies it the jurisdiction to adjudicate on a matter before it. Whatever is brought before the trial court by the plaintiff or claimant for determination alone will determine whether or not a trial court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all; See the case of P& C.H.S. Co. Ltd Vs. Mig70 Nig. Ltd 2013 3 NWLR Pt. (1333) at 555. In furtherance of the same principle, jurisdiction of a court to entertain a suit is based on the plaintiff/ claimants averment in the statement of claim and the reliefs sought therein. See the case of Osoh Vs. Unity Bank Plc 2013 9 NWLR (Pt. 1358) SC I. Moreover, once an issue of jurisdiction is raised as in this case, it should be examine in all its ramifications it should not be compartmentalized and subjected to piecemeal examination and treatment. In fact, it is trite law that the many faces of jurisdiction should come under the search light and pronounced upon. See the cases of Oloba Vs. Akereja (1988) 3 NWLR (Pt. 84) 508; Olutola Vs. Unilorin 2004 (Pt. 905) 18 NWLR, 416 SC. Now what are these faces and ramifications of jurisdiction of court which has these variegated colours? In the locus classicus case of Madukolu Vs. Nkedilum 1962 2 SCNLR 341, it was stated clearly that the principle which guide the court in the determination of whether or not it has jurisdiction include the following: (a) That the subject matter of the case is within its jurisdiction. (b) That there is no feature in the case which prevents the court from exercising its jurisdiction, and (c) That the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. By section 7 (1) (a) of the NIC Act 2006 this court has exclusive jurisdiction in civil cases and matters relating to labour, trade union, industrial relations, environment, condition of work, health, safety welfare of labour and matter incidental thereof . By section 7 (4) of the NIC Act 2006, an appeal shall lie from the decision of an arbitral tribunal to the court as of right in matters of dispute as specified in subsection (1) (a) of section 7 mentioned above. The appellant counsel Mr. Ezenduka submitted that he has exercised his clients rights of appeal in line with section 7 (4) of the NIC Act 2006. Counsel heavily fortified his right of appeal as exercised in this case under sections 21 & 22 of the TDA OF Cap T8 LFN 2004. Unfortunately this section of the law of which heavier reliance was placed upon for the institution of the appeal is now an Obsolete law. All the strenuous and vehement arguments canvass on that sections of the law are hereby discountenanced. This is because S. 53 of the NIC Act 2006 has repealed part II ie sections 20-32 of the Trade Dispute Act. For the avoidance of doubt, section 53 (1) of the NIC Act 2006 says “Part II of the Trade dispute Act is hereby repealed” I am in complete argument with Mr. Ezenduka that the subject matter before the IAP of which an award was given was a trade dispute, a labour matter and an industrial relation issue. By the brief of argument filed in the case, it is the fact that the minister of labour and productivity originated the hearing and determination of this dispute through a referral. By paragraph I (I) (2) of the appellant brief of argument dated and filed on the 26th of June 2013 and 27th of June 2013 respectively it is stated as follows; “By referral instrument dated 24th day of April 2009, the Honourable minister of labour and productivity referred in alleged trade dispute between Amalgamated Union of Public corporation Civil service Technical Services employees representing the workers of Anambra State water corporation and Anambra State environmental protection Agency as against Anambra state government, Anambra state water corporation and Anambra State environmental Protection Agency. The arbitration is entered as IAP/HB/3787” By paragraph 2 (2) (1), the appellant in his brief stated further; “The Minister of labour and productivity by a referral instrument dated 24th day of April 2009 referred the alleged dispute between the parties to the industrial Arbitration Panel. The said Instrument is in page I of the record of appeal. One conclusion of the hearing and Award and upon proper objection to the award, the minister of labour also on the 27th day of May 2010 referred the Trade dispute to this court which was listed as No. NIC/LA/21/2010. This court heard the dispute and in the judgment of this court referred the dispute back to Industrial Arbitration Panel to be heard by another panel. The instrument made pursuant to section 14 of Trade dispute Act by the minister of labour and productivity is in page 2 & 3 of the record of appeal. The said instrument clearly defined issues in dispute” From the above quoted statement of facts in the appellant brief of argument, it is the outcome of the retried dispute from the IAP that forms the crux of this appeal. It is therefore very clear that the appellant knows the content and provisions of the trade dispute Act Cap T8 LFN 2004 out decided to ignore it but rather prefer to appeal the award of the IAP to this court. In my humble view, section 13 and section 14 of the trade dispute Act Cap T8 LFN 2004 are very crucial in the consideration of the first respondent’s objection. Once the minister of labour referred a Trade Dispute to the IAP, the Arbitration tribunal constituted under section 9 therein shall make an award within 21 days of its constitutions or such longer period as the minister may in any particular case allow. The IAP, on making its award, shall not communicate the award to the parties but shall send a copy thereof to the minister who referred the dispute to it; the minister, on receipt of the copy of the award may decide to refer the matter back to the tribunal for reconsideration in accordance with section 13 (3) of the TDA Cap T8 LFN 2004. The minister of labour shall immediately cause the award to be publish and given parties within 7 days to raise any objection in the proper manner to the award. Section 14 of the TDA says: “ If no notice of objection to the award of the tribunal is given to the minister within the time and in the manner specified in the notice under subsection 2 of this section, the minister shall publish in the federal gazette, a notice confirming the award and the award shall be binding on the employers and workers to whom it relates as from the date of the award (or such) earlier or later date as may be specified in the award.” From the entire notice of appeal, the brief of argument, the motion for stay, the affidavit and the written address attached therein, there is nothing to suggest that the appellant ever filed any notice of objection to the IAP award. In fact it is the argument of the appellant that he need not file any objection before he exercises his right of appeal. The appellant got it all wrong here; this is so because (1) Once an award is given by the IAP the award is sent to the minister of labour to take a decision on that award; the minister may decide to send the award back to I.A.P for review If the minister of labour receives the award and decides to do nothing, a party can come by way of mandamus With a view to compelling him to perform a statutory or public duty (2) A party to the award of the IAP, coming straight to the NIC on appeal, without giving the opportunity to the minister of labour who referred the dispute to the IAP, has denied the minister the opportunity of deciding one way or the order. (3) Once the Honourable minister has taken a decision, party then has the right to approach the court to ventilate his/ her grievances. This is so because the processes and stages in section 13 of the TDA Cap T 3 LFN 2004 must be exhausted. This law is still a valid, potent and relevant law in this subject matter. Even where the IAP award is objected to in the proper manner and within the time limit specified by the law, the honourable minister of labour still possess the power and duty of referring the dispute to the NIC. Section 14 (1) of the TDA Cap T8 LFN 2004 says:- “If notice of objection to the award of an arbitration tribunal appointed under section 9 of this Act is given to the minister within the time and in the manner specified in the notice under section 13 (2) of this Act, the minister SHALL forthwith refer the dispute to the National Industrial Court established by this Act”. From the above, assuming the appellant followed and fulfilled the conditions and processes, it is the minister of labour that has the mandatory obligation to refer such matter to this court. Even where a party who is dissatisfied with an IAP award, filed a notice of objection out of time (ie outside the 7 days) to the minister of labour, this court had earlier held that the appellant’s appeal was incompetent. See the case of National Union of Local Government Employee Vs. Local Government Service Commission Abia State 2007 7 NLLR (Pt. 17) 132. I am persuaded by this decision. It therefore follows that a matter instituted or commenced without compliance to the due process of law and stipulated statutory conditions precedent thereto will render the suit incompetent as in the instant case. In the same view, even though the subject matter of this suit is within the jurisdiction of this court as it borders on Labour, Trade Dispute and industrial relations, they are features in the case which prevents the court from exercising its jurisdiction. These feature borders squarely on the non-compliance with section 13 of the Trade Dispute Act Cap T 8 LFN 2004. Moreover, the appeal before this court as constituted is not initiated by due process of law as the condition precedent to the institution of this case has not been fulfilled. See Madukolu Vs. Nkedilum (Supra) Furthermore, it is trite law that an application for stay of execution must necessarily be predicated on a valid appeal, in this matter, the application for stay, having not been so predicated there is no need to proceed to consider it. See Okafor Vs. Nnaife (1987) 4 NWLR Pt. 64 129. Clev Josh Ltd Vs. Tokimi (2008) 13 NWLR Pt. 1104) 422 (CA) From the totality of the reason given so far in this ruling it is my considered view that this court has no jurisdiction to entertain this appeal and the motion for stay of execution. The first respondent’s preliminary objection is hereby upheld. I make no order as to cost. ----------------------------- Hon. Justice P.O Lifu ( JP.) Judge