R.T.E.A.N & ORS v. AJEWOLE & ORS
CITATION: (2016) LPELR-41271(CA)
In the Court of AppealIn the Kaduna Judicial Division
Holden at Kaduna
ON MONDAY, 29TH FEBRUARY, 2016Suit No: CA/K/287/2009
Before Their Lordships:
HABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealOLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of Appeal
BetweenROAD TRANSPORT EMPLOYERS ASSOCIATION OFNIGERIACHIEF ABUBAKAR SADIQ (STATE CHAIRMAN FCTABUJA)CHIEF M. O. AJAYI (NATIONAL PATRON)CHID F. O. U. NWOGU (NATIONAL INTERNALAUDITOR)MAZI AMOBI OYEMUWA (FIRST ASST NATIONALSECRETARY GENERAL)
- Appellant(s)
AndMR. OLUFEMI AJEWOLEMR. MOSES OGUNFAYOREV. O. L. EDEMAALHAJI SHEHU MUSA ISHEWELEMAGISU AKINPELU
- Respondent(s)
RATIO DECIDENDI
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1. APPEAL - ISSUE(S) FOR DETERMINATION: Whether issue(s) for determination must relate tothe grounds of appeal filed"It is elementary that to be relevant in an appeal, issues for determination and arguments thereonmust relate to and challenge the ratio of the decision appealed against - Eyigebe Vs Iyayi (2013)11 NWLR (Pt 1365) 407 and Tukur Vs Interglobal Procurement Engineering Services Ltd (2014) 17NWLR (pt 1437) 575."Per ABIRU, J.C.A. (P. 17, Paras. B-D) - read in context
2. APPEAL - FRESH POINT(S) ON APPEAL: Whether fresh point can be raised at the Court ofAppeal"It is settled law that a Respondent's Notice of Contention is not an opportunity to raise freshissues which had not come up for consideration before the lower Court - Uhumwangho Vs Okojie(1989) 12 SCNJ 84, Nabisco Inc Vs Allied Biscuits Co. Ltd (1998) 7 SCNJ 235, Delta StateGovernment Vs Okon (2002) 2 NWLR (pt 712) 665, Touton S A Vs Grimaldi Compagnia Di NavigaZioni SPA (2010) LPELR-5033(CA). The Respondents' motion dated the 30th of August, 2007 andthe issues canvassed therein did not come up for hearing before the lower Court and did notconstitute part of the issue raised suo motu by the lower Court. The issues raised in the motioncannot thus be raised in this appeal and cannot form the basis for this Court affirming or varyingthe decision of the lower Court on the issue raised by that Court suo motu. The Notice ofContention is an attempt by the Respondents to argue their motion on notice filed before thelower Court and dated 30th of August, 2007 before this Court directly. They cannot be allowed todo so. This is an appellate Court and its jurisdiction is confined to reviewing the decision of a lowerCourt in order to find out whether, on proper consideration of the facts placed before it and theapplicable law, the lower Court arrived at the right decision. In the absence of such a decision of alower Court, there cannot be anything for this Court to deliberate on - Dagaci of Dere & Ors VsDagaci of Ebwa & Ors (2006) 7 NWLR (pt 979) 382, Abdullahi Vs State (2013) 11 NWLR (pt 1366)435, Yaro Vs National Salaries, wages and Income Commission (2013) 12 NWLR (pt.1367) 173."PerABIRU, J.C.A. (Pp. 8-9, Paras. D-F) - read in context
3. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter"It is settled law that it is the case of the plaintiff as endorsed on the writ of summons andelaborated in the statement of claim or any other originating process that determines thejurisdiction of the Court - Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (pt 1318)423, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR (pt 1342) 503, Ahmed Vs Ahmed (2013) 15NWLR (pt.1377) 274."Per ABIRU, J.C.A. (P. 43, Paras. B-D) - read in context
4. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: Duty of Courtsto give effect to the intention of legislature when interpreting statutes"... It is not the duty of the Court to ascribe meaning to the clear, plain and unambiguousprovisions of a Statute in order to give them a slant which accords with the Court's own view -lzedonmwen Vs Union Bank of Nigeria Plc (2012) 6 NWLR (Pt 1295) 1. This is particularly more sowhere the Statute in question seeks to restrict access of citizens to Court, as in this case, becausethe wordings of such a Statute must be interpreted strictly and must not be stretched beyond itsordinary meaning unless the need for such stretched interpretation is expressly stipulated in theStatute."Per ABIRU, J.C.A. (P. 41, Paras. B-E) - read in context
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5. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: Duty of Courtsto give effect to the intention of legislature when interpreting statutes"Reading through the provisions of Part 1 of the Trade Disputes Act, it is clear that their essence isto compel parties to go through the conciliation and arbitration process provided for in theprovisions before they can access the National Industrial Court for adjudication of their disputes.Now, it is an established principle of interpretation that where the right of access of a person toCourt is either taken away or restricted by any Statute, the language of any such Statute orprovision will not be extended beyond its obvious meaning unless clear words are used to justifysuch extension. This is mainly because it is the practice of the Court to guard its jurisdictionjealously. Thus, while interpreting any outer or restrictive clause in a Statute the Courts usuallyscrutinize every aspect of such provision with a view to ensuring that everything done under suchStatute is done strictly in compliance with the provisions of the Statute. Where the Court finds thatthere is a failure to strictly comply with what the Statute provides for, such an act purported to bedone under the Statute would be ultra vires and would be declared null and void as such actionwould be regarded not to have been carried out under the said provisions of the Statute - InakojuVs Adeleke (2007) 4 NWLR (pt 1025) 423, Maikyo Vs Itodo (2007) 7 NWLR (pt 1034) 443, Olaleye-Ote Vs Babalola (2012) 6 NWLR (pt 1297) 574. Applying this principle of interpretation to theprovisions of Part 1 of the Trade Disputes Act it is clear that they apply only what is referred to asa "trade dispute", and not to any other type of dispute. This Court notes that Section 2 of theTrade Disputes Act states that "no person shall commence an action, the subject matter of a tradedispute or any other inter or intra union dispute in a Court of law.Per ABIRU, J.C.A. (Pp. 28-32,Paras. A-B) - read in context
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6. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE: Duty of Courtsto give effect to the intention of legislature when interpreting statutes"It is trite that in interpreting a Statute, the duty of a Court is to discover the intention of thelawmaker and in so doing it must consider the words used in order to discover their ordinarymeaning, and then give use their ordinary meaning as they relate to the subject matter - MerillGuaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (pt 1336) 581,Gbagbarigha vs Toruemi (2013) 6 NWLR (Pt 1350) 289, Commissioner for Education, Imo State VsAmadi (2013) 13 NWLR (Pt 1370) 133. And in doing so, a Court must not give an interpretationthat would defeat the intention and purpose of the lawmakers, and it should adopt a holisticapproach and interpret the provisions dealing with a subject matter together to get the trueintention of the lawmakers and should adapt a holistic approach and interpret the provisionsdealing with a subject matter together to get the true intention of the law maker and should aimat giving a Statute a purposeful interpretation - Abia State University, Uturu Vs Otosi (2011) 1NWLR (pt.1229) 605, Ayodele Vs State (2011) 6 NWLR (pt.1243) 309, National Union of RoadTransport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307)170, Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (pt 1380)249. A Statute must be read as a whole, and not parts in isolation, and that the different parts ofthe Statute must be interpreted in the light of the whole Statute and an effort must be made toachieve harmony amongst its different parts - Amalgamated Trustees Ltd Vs Associated DiscountHouse Ltd (2007) 15 NWLR (Pt 1056) 118, Nigerian Army Vs Aminu- Kano (2010) 5 NWLR (Pt 1188)429, Abubakar Vs Nasumu (No. 2) (2012) 17 NWLR (Pt 1330) 523.Applying these principles to the interpretation of Section 7(3) of the National Industrial Court Act2006 vis-a-vis the provisions of Part 1 of the Trade Disputes Act, this Court must say that it isunable to agree with the Counsel to the Appellants that the provisions of Part 1 of the TradeDisputes Act do not come within the contemplation of the Act of the National Assembly referred toin Section 7(3) of the National Industrial Court Act. If the provisions of Part 1 of the Trade DisputesAct were not contemplated, theNational Industrial Court Act would either have repealed them, as it did of Part II of the TradeDisputes Act or it would have limited their scope of operation. Having not done either and havingsaid in its Section 53(2) that the surviving provisions of the Trade Disputes Act must beinterpreted in a manner to bring them in conformity with the provisions of the National IndustrialCourt Act 2006, it means that the provisions of Part 1 of the Trade Disputes Act must be read intothe provisions of Section 7(3) of the National Industrial Court Act as one of the Acts of the NationalAssembly contemplated or envisaged. To hold otherwise will be to suggest that though theLegislature chose to preserve the provisions of Part 1 of the Trade Disputes Act by not repealing itin the National Industrial Court Act, it did not intend for the provisions to be of any use as it "may"pass another law on the conciliation and arbitration of trade disputes which will then beoperational under Section 7(3) of the National Industrial Court Act. It is trite that there is alwaysthere is a presumption against the legislature intending what is unreasonable and inconvenient inthe interpretation of Statute. Thus, it is trite that common sense must be applied in construingStatutes and the construction agreeable to justice and reason must be adopted - Ibrahim VsSheriff (2004) 14 NWLR (Pt 892) 43, Elabanjo vs Dawodu (2006) 15 NWLR (Pt 1001) 76, Sobamowovs Elemuren (2008) 11 NWLR (Pt 1097) 12. In Attorney General, Nasarawa State Vs AttorneyGeneral, Plateau State (2012) 10 NWLR (Pt 1309) 419, the Supreme Court stated that noreasonable Court or Tribunal will impute any absurd or unjust consequences to a Statute or implyin a Statute consequences that will lead to absurdity or injustice. The position of the law in thisrespect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 atpage 199 thus: "In determining either the general object of the legislature, or the meaning of itslanguage in any particular passage, It is obvious that the intention which appears to be most inaccord with convenience, reason, justice and legal principles should, in all cases of doubtfulsignificance, be presumed to be the true one. An intention to produce an unreasonable result isnot to be imputed to a Statute if there is some other construction available.Per ABIRU, J.C.A. (Pp.22-26, Paras. A-C) - read in context
7. LABOUR LAW - TRADE DISPUTE: Meaning of trade dispute; factors which must co-exist for acause of action to be considered a trade dispute"... These provisions are contained in Part 1 of the Act which is headed "Procedure for settlingtrade disputes" and Section 1 states that Per ABIRU, J.C.A. (Pp. 26-28, Paras. F-A) - read in context
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8. PRACTICE AND PROCEDURE - ADDRESS OF COUNSEL: Whether the address of counsel isbinding on Court"This however does not mean that this Court must accept the arguments of the Counsel to theAppellants as gospel truth and automatically enter judgment in favour of the Appellants. This isbecause the address of Counsel is not binding on the Court. The Court must still assess thearguments - Oruboko Vs Oruene (1996) 7 NWLR (pt 462) 555, Ogbu Vs The State (2007) All FWLR(Pt 361) 1651., Eya Vs Olopade (2011) 11 NWLR (pt 1259) 505 and Independent National ElectoralCommission Vs Nyako (2011) 12 NWLR (pt 1262) 439. In Edonkumoh Vs Mutu (1999) 9 NWLR (Pt620) 633, Ibiyeye, JCA stated at 652 E-F thus: Per ABIRU, J.C.A. (Pp. 17-18, Paras. E-E) - read incontext
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HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
(Delivering the Leading Judgment): This appeal is
against the decision of the National Industrial Court sitting
in Kano contained in a Ruling delivered on the 18th of May,
2009 in Suit No NIC/7/2007. The Appellants, as plaintiffs,
commenced the action in the lower Court against the
Respondents, as defendants, and they, by an amended
originating summons dated the 18th of May, 2007 and filed
on the 21st of May, 2007, posed the following questions for
resolution by the lower Court:
i. Whether the defendants, in view of the trade dispute
declared by the 4th and 5th Plaintiffs for themselves and on
behalf of South East and South South Zones of RTEAN
through a notice to that effect dated the 23rd of June 2005,
in compliance with the stipulation of the Union's
Constitution in Article 6c, can proceed to purport to plan,
organize, convene or hold a National Delegates Conference
at Abeokuta Ogun State of Nigeria on the 27th and 28th of
February, 2007 without first resolving the dispute, having
regard to the weight of the issues involved in the trade
dispute.
ii. Whether the defendants can purport to organize a
National
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Delegates conference of RTEAN at Abeokuta Ogun State on
the 27th and 28th of February, 2007 despite the
Notification of Trade Dispute (intra) given to the Honorable
Minister of the Federal Ministry of Labour and Productivity
Abuja in accordance with the Trade Disputes Act Cap 432
Laws of the Federation 1990 on the 19th of July 2005
through a letter signed by the 5th Defendant and the
requisite Form TD/3 dated 19th of July, 2005.
iii. Whether in view of the letter of the Honorable Minister
of Labour dated the 17th of August, 2005 with reference
No ML-HB/7663/1/12 signed by Mrs. Eghobamien inviting
the defendants to a meeting for the resolution of the Trade
Dispute, which has not yet been concluded, and the further
letter of the Honorable Minister of Labour and Productivity
signed by Mr. Chris Ahata dated the 25th of July, 2006 with
reference No ML.IB/56/111/176 denying the defendants of
approval to hold a National Delegates Conference, can the
defendants still disregard same and hold a National
Delegates Conference.
iv. Whether in view of Section 36 (1) of the Constitution of
the Federal Republic of Nigeria 1999 and Article 13(i) (a)
Article 15,
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Section 10(b) Article 15 and Section 12(b) Article 19(a) of
the Constitution of RTEAN of September 2003, the
defendants can legitimately hold a National Delegates
Conference.
v. Whether in view of the appeal pending in the Court of
Appeal, Lagos Judicial Division in Appeal No CA/L/108/03
filed by Chief Ogunyade challenging the purported election
of the defendants, the defendants can still proceed to
organize a National Delegates Conference.
vi. And if questions (i) to (iv) are answered in the
affirmative, whether the 4th and 5th plaintiffs are not
entitled to be heard on their grievances, and if they are so
entitled to be heard, whether the Court cannot declare the
purported holding or convening of the National Delegates
Conference of RTEAN at Abeokuta Ogun State on the 27th
and 28th of February 2007 as illegal and void and of no
effect whatsoever.
Consequent on the resolution of the above questions, the
Appellants prayed for the following orders:
i. A declaration that the purported holding of the National
Delegates Conference of the RTEAN by the defendants at
Abeokuta Ogun State on the 27th and 28th of February,
2007 without the resolution
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of the issues raised in the plaintiffs Notice of Trade Dispute
is unlawful, illegal, null and void and of no effect
whatsoever.
ii. An order of the Court directing the defendants and all
parties concerned in the intra union dispute of RTEAN to
resolve all major intra union disputes by involving all zones
of the Union before holding a united and an all embracing
National Delegates Conference.
The amended originating summons as supported by an
affidavit of facts and to which was attached exhibits. Upon
being served with the processes, the Respondents filed a
memorandum of appearance as well as a motion on notice
dated the 30th of August, 2007. The motion prayed for:
i. An order striking out the suit for incompetence as the
Plaintiffs had no locus standi to institute this action.
ii. An order striking out this suit for fraud and deceit.
iii. An order striking out this suit for this Honorable Court
lacks requisite jurisdiction.
The motion was supported by an affidavit with exhibits
attached.
In the course of the proceedings on the 26th of September
2008, the lower Court expressed doubt as to its
competence to hear and determine
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the subject matter of the suit and it consequently raised the
issue suo motu and directed the parties to address it on its
jurisdictional competence to hear and determine the
subject matter of the suit. Counsel to the parties filed their
written addresses, but whilst the written address of the
Appellants, as plaintiffs, limited its scope to the issue raised
by the lower Court, the written address of the Respondents,
as defendants, strayed beyond the issue. In addition to
addressing on the issue raised suo motu by the lower
Court, Counsel to the Respondents also addressed on the
propriety of the reliefs sought on the amended originating
summons, fraudulent misrepresentation, locus standi,
wrong description of case and abuse of process. These
were arguments on the issues contained in the
Respondents' application of 30th of August 2007. In its
Ruling, the lower Court ignored the arguments of the
Counsel to the Respondents on issues outside the singular
issue it raised suo motu. In resolving the issue of its
jurisdictional competence to entertain the subject matter of
the case of the Appellants, the lower Court held that it did
not possess original jurisdiction to
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entertain the claims of the Appellants and it struck out the
suit for want of jurisdiction. The Appellants were
dissatisfied with the Ruling and they caused their Counsel
to file a notice of appeal against it. The notice of appeal is
dated 12th of June, 2009, but was filed on the 15th of June,
2009 and it contained six grounds of appeal.
In arguing his appeal before this Court, Counsel to the
Appellants filed a brief of arguments dated the 8th of
February, 2010 on the 12th of April, 2013. Counsel to the
Respondents responded by a brief of arguments dated the
20th of March, 2014 and filed on the 24th of March, 2014.
Counsel to the Appellants filed a reply brief of arguments
dated the 24th of April, 2014 on the 2nd of May, 2014.
Counsel to the Respondents additionally filed an amended
Notice of Contention praying that the Ruling of the lower
Court be upheld on other grounds other than that relied
upon by the lower Court and it was dated the 20th of
March, 2014. The Respondents' brief on the notice of
contention was dated the 20th of March, 2014 and it was
filed on the 24th of March, 2014. Counsel to the Appellants
filed a brief of arguments dated the 24th of
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April, 2014 in response on the 2nd of May, 2014. Counsel
to the Respondents filed a reply brief of arguments dated
the 3rd of November 2014. At the hearing of the appeal,
Counsel to the parties adopted and relied on the arguments
contained in their respective briefs of arguments on both
the appeal and on the amended Notice of Contention as
their oral submissions.
By the amended Notice of Contention, the Respondents
intended to contend that this Court should affirm the
decision of the lower Court on different grounds and these
were listed as (i) improper to pray for an injunctive relief
for an action that has already been concluded; (ii)
amending pleadings and reliefs sought in the original
processes contrary to the prayers granted by the lower
Court; (iii) deceitfully including the names of dead persons
and other persons without their consent which is fraudulent
misrepresentation; (iv) lack of locus standi; (v) claim of the
Appellant had to do with election/electoral matters -
Delegates Conference which is not a labour matter per se,
and (vi) abuse of process. These were the issues raised by
the Respondents in their motion dated the 30th of August,
2007.
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This motion was not taken by the lower Court.
The issue that the lower Court raised suo motu and on
which it directed the parties to address it was whether it
had jurisdictional competence to hear and determine the
subject matter of the claims of the Appellants. It is correct
that in addressing the lower Court on the issue raised,
Counsel to the Respondents digressed into arguing the
issues raised in their motion dated the 30th of August,
2007, and which are the issues raised in the Notice of
Contention, and the lower Court rightly, in the view of this
Court, discountenanced the digressing arguments and
focused only on those that were related to the issue it
raised suo motu.
It is settled law that a Respondent's Notice of Contention is
not an opportunity to raise fresh issues which had not come
up for considerat ion before the lower Court -
Uhumwangho Vs Okojie (1989) 12 SCNJ 84, Nabisco
Inc Vs Allied Biscuits Co. Ltd (1998) 7 SCNJ 235,
Delta State Government Vs Okon (2002) 2 NWLR (pt
712) 665, Touton S A Vs Grimaldi Compagnia Di
Naviga Zioni SPA (2010) LPELR-5033(CA). The
Respondents' motion dated the 30th of August, 2007 and
the issues canvassed
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therein did not come up for hearing before the lower Court
and did not constitute part of the issue raised suo motu by
the lower Court. The issues raised in the motion cannot
thus be raised in this appeal and cannot form the basis for
this Court affirming or varying the decision of the lower
Court on the issue raised by that Court suo motu. The
Notice of Contention is an attempt by the Respondents to
argue their motion on notice filed before the lower Court
and dated 30th of August, 2007 before this Court directly.
They cannot be allowed to do so. This is an appellate Court
and its jurisdiction is confined to reviewing the decision of
a lower Court in order to find out whether, on proper
consideration of the facts placed before it and the
applicable law, the lower Court arrived at the right
decision. In the absence of such a decision of a lower Court,
there cannot be anything for this Court to deliberate on -
Dagaci of Dere & Ors Vs Dagaci of Ebwa & Ors (2006)
7 NWLR (pt 979) 382, Abdullahi Vs State (2013) 11
NWLR (pt 1366) 435, Yaro Vs National Salaries,
wages and Income Commission (2013) 12 NWLR
(pt.1367) 173.
The amended Notice of Contention and
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the issues raised therein are inappropriate in this appeal
and they are hereby struck out along with the briefs of
arguments filed thereon by the Counsel to the parties.
In its deliberations on the issue it raised suo motu, i.e. the
jurisdictional competence of the Court to entertain the
subject matter of the claims of the Appellant, the lower
Court stated in its Ruling thus:
"... We totally agree that the cause of action disclosed
are intra union dispute which by the provisions of
Section 54(1) of NICA 2006 is described as dispute
within a trade union or an employers association. At
this juncture the question is having seen the claim of
the claimants are of the view that their claims fall
square ly wi th in the purv iew of Sect ions
7(1)(a)(i), 7(1)(c)(iv) and 7(1)(c)(v) of the NICA 2006.
While we agree that Section 7 of the NICA 2006
generally defines the jurisdiction of this Court, we
must quickly point out that Section 7(1)(a) in
particular must be read in conjunction with the
provisions of Subsection (3) of the same Section 7.
For the avoidance of doubt the said Section 7(1)(a)(i)
of NICA provides as follows:
7. (1) The Court shall have and
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exercise exclusive jurisdiction in civil causes and
matter.
(a) relating to-
...(i) labour, including trade unions and industrial
relations…”
While Section 7(3) of the NICA provides thus:
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.
This Court has held in a number of cases that the
effect of the provisions of Section 7(3) of the NICA
2006 is that the original jurisdiction of this Court in
relation to trade dispute cannot be accessed without
first going through the processes of dispute
resolution outlined in the provisions of Part 1 of the
Trade Dispute Act Cap T8 Laws of the Federation of
Nigeria (LFN) 2004...
In view of this therefore, it is our view that the
Claimants claim in this suit which is rooted in an
intra union dispute has prematurely come before this
Court. The parties would have to first exhaust the
processes of conciliation and arbitration as provided
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for under the Part 1 of the Trade Disputes Act before
they could come before this Court on appeal, if
necessary.”
This is the reasoning of the lower Court that the Appellants
have a grievance with and their Counsel formulated two
issues for determination in this appeal. These were:
i. Whether once the claim of a party is based on intra Union
dispute it cannot be filed before the National Industrial
Court without first going through the process of
conciliation and arbitration, before the claim can be filed at
the National Industrial Court as an appeal.
ii. Whether in view of the claims in the Originating
Summons and the reliefs sought therein, the provisions of
Part 1 of the Trade Dispute Act apply as a mandatory
precondition and inhibition on the Appellants from directly
invoking the jurisdiction of the National Industrial Court as
is enshrined in Section 7 of the National Industrial Court
Act, 2006 due to the provisions of Section 7 (3) of the Act.
Counsel to the Appellants argued the two issues for
determination together and he reproduced the questions
posed by the Appellants on their originating summons
before the lower Court and
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the reliefs sought therein, but in stating the reliefs, Counsel
referred to those contained in the original originating
summons and not those contained in the amended
originating summons. Counsel reproduced the above
quoted portion of the Ruling of the lower Court, and more,
and the provisions of Section 7 (3) of the National
Industrial Court Act of 2006, which he said formed the
basis for the reasoning of the lower Court, and stated that
the lower Court misapplied and misinterpreted the
provisions of the Section. Counsel referred to the canon of
interpretation that says that where words in a Statute are
plain and unambiguous, it is the duty of the Court to give
effect to them and he cited the case of AG Federation Vs
Abubakar (2007) 10 NWLR (pt 1041) 1 thereon and
stated that instead of giving the words used in Section 7 (3)
of the National Industrial Court Act 2006 their plain
meaning, the lower Court imported the words "Trade
Dispute" into them and brought into play the Trade Dispute
Act Cap T8, LFN 2004 to which the Section made no
reference and thus breached the rule that says that Courts
must refrain from interpretation of Statutes that would
translate
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into making legislations and he again referred to the case
of AG Federation Vs Abubakar supra. Counsel stated that
by interpreting Section 7 (3) of the National Industrial
Court Act 2006 as meaning that the jurisdiction of the
Court cannot be accessed without complying with the
Trade Dispute Act, the lower Court imposed a mandatory
condition to be satisfied by a plaintiff before he can access
the National Industrial Court and that this amounted to
making legislation because Section 7 (3) did not impose
such condition and it used the word "may" which is
permissive and not mandatory, and not the word "shall".
Counsel stated further that Section 7 (3) of the National
Industrial Court Act 2006 provides for the likelihood of the
National Assembly to make a law in future which may
provide the option to a party to first refer his claims that
fall under the jurisdiction of the National Industrial Court
in Sections 7(1) and (2) for conciliation and arbitration
before bringing the matter before the Court or to choose to
file his grievances directly before the Court without going
through the process of conciliation and arbitration under
the law to be made by the
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National Assembly. Counsel stated that the provisions of
Section 7(3) of the National Industrial Court Act could not
have been making reference to the Trade Dispute Act, a
law that was already in existence at the time the National
Industrial Court Act was made and that Section 53 of the
National Industrial Court Act expressly repealed Part II of
the Trade Dispute Act and stated that other provisions of
the Trade Dispute Act shall be construed with such
modifications as may be necessary to them in conformity
with the provisions of the National Industrial Court Act and
that Section 7 (3) would have specifically mentioned the
Trade Dispute Act, if that was its intendment. Counsel
stated that the provisions of Section 7 (3) of the National
Industrial Court Act were futuristic and they cannot be
given retrospective application and he referred to the cases
of Ogunlesi Vs Attorney General (Federation) and
Mogele Vs Alewe, both reported in Digest of Supreme
Court case 1956 -1984 on pages 821 and 822 respectively.
Counsel stated that the Trade Dispute Act covers claims
relating to trade disputes alone and that these must be
trade disputes founded on a collective
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agreement and he referred to the definition of trade
dispute in Section 1 of the Trade Dispute Act and stated
that it does not include intra union disputes and that the
lower Court having found that the claims of the Appellants
were rooted in an intra union dispute, and which was not
dependent on a collective agreement, the conciliation and
arbitration process referred to in the Trade Dispute Act
were not applicable. Counsel also stated that entire
provision of Part 1 of the Trade Dispute Act deals with
"procedure" rather than substantive jurisdiction as
conferred by Section 7(1), (2) and (3) of the National
Industrial Court Act 2006 and that rules of procedure
cannot override the provision of a substantive law which
specifically confers jurisdiction on the National Industrial
Court. Counsel concluded his arguments by using this
Court to resolve the two issues for determination in favour
of the Appellants and to allow the appeal.
In his response, Counsel to the Respondents formulated
one issue for determination and it was whether the lower
Court was not correct when it held that it had no
jurisdiction to entertain the claims of the Appellant. In
arguing
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this issue, however, Counsel made no reference to the
deliberations in or the reasons given by the lower Court for
coming to its decision in the Ruling appealed against.
Rather Counsel chose to argue the issues raised in the
Respondents' amended Notice of Contention. Issues which
this Court had found as arising from the contents of a
motion which was not heard or considered by the lower
Court and which this Court had struck as being
inappropriately raised in this appeal. It is elementary that
to be relevant in an appeal, issues for determination and
arguments thereon must relate to and challenge the ratio of
the decision appealed against - Eyigebe Vs Iyayi (2013)
11 NWLR (Pt 1365) 407 and Tukur Vs Interglobal
Procurement Engineering Services Ltd (2014) 17
NWLR (pt 1437) 575. The brief of arguments of the
Respondents does not add value to the issues in this appeal
and will be discountenanced.
This however does not mean that this Court must accept
the arguments of the Counsel to the Appellants as gospel
truth and automatically enter judgment in favour of the
Appellants. This is because the address of Counsel is not
binding on the Court. The Court must still
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assess the arguments - Oruboko Vs Oruene (1996) 7
NWLR (pt 462) 555, Ogbu Vs The State (2007) All
FWLR (Pt 361) 1651., Eya Vs Olopade (2011) 11
NWLR (pt 1259) 505 and Independent National
Electoral Commission Vs Nyako (2011) 12 NWLR (pt
1262) 439. In Edonkumoh Vs Mutu (1999) 9 NWLR
(Pt 620) 633, Ibiyeye, JCA stated at 652 E-F thus:
“It is pertinent to point out that the learned counsel
for the first respondent did not proffer any response
to this issue in his brief of argument. It follows
therefore that he has little to urge on it. The fact that
there is want of response by the first respondent is no
license to accede to the arguments and submissions
of learned counsel for both the appellant and the
second to fourth respondents. Those submissions will
still be meticulously considered and opined upon
accordingly.”
The excerpt of the core reasoning of the lower Court in
holding that it had no jurisdiction to entertain the claims of
the Appellants has been reproduced above. What is evident
from the reasoning is that the lower Court accepted that it
had substantive jurisdiction to hear and determine the
claims of the Appellants under Section
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7(1)(a) of the National Industrial Court Act 2006, but it
declined the exercise of that jurisdiction on the ground of
failure of the Appellants to comply with a condition
precedent for coming to Court; failure to exhaust the
conciliation and arbitration procedure provided for in the
Trade Disputes Act, Cap T8, Laws of Federation 2004. The
lower Court predicted its reasoning on the provision of
Section 7(3) of the National Industrial Court Act 2006.
Section 7(3) of the National Industrial Court Act 2006
reads:
“Notwithstanding anything to the contrary in this Act
or any other enactment in 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.”
Three questions arise for resolution from the arguments of
Counsel to the Appellants in this appeal and these:
i. Whether the Trade Disputes Act Cap T8, Laws of
Federation 2004 comes within the contemplation of or was
one of the laws envisaged by the provisions of Section 7(3)
of the National Industrial Court Act, 2006.
ii. If (i) is in the
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affirmative, whether the provisions relating to conciliation
and arbitration in the Trade Dispute Act, Cap T8, Laws of
Federation 2004 were applicable to the claims of the
Appellants.
iii. If (i) and (ii) are in the affirmative, whether, in the
circumstances of this case, the provisions of Part 1 of the
Trade Dispute Act, Cap T8, Laws of Federation, 2004 on
conciliation and arbitration provisions procedure were
indeed applicable.
On the first question, the Trade Disputes Act was
promulgated in 1976 and was subsequently amended by
the Trade Disputes (Amendment) Act of 1992 and by the
National Industrial Court Act of 2006. The Trade Dispute
Act predated the National Industrial Court Act of 2006 and
it was one of the existing laws that were deemed to be Acts
of the National assembly by the provisions of Section 315 of
the Constitution of the Federal Republic of Nigeria 1999.
The Trade Disputes Act had fifty two Sections and was
divided into six parts. Section 53 (1) of the National
Industrial Court Act of 2006 repealed Part II of the Trade
Dispute Act and Sections 53 (2) and 53 (3) read thus:
“(1) “Without prejudice to the provisions of
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Subsection (1) of this Section, the other provisions of
the Trade Disputes not shall be construed with such
modifications as may be necessary to bring it into
conformity with the provisions of this Act.
(2) If any provision of the Trade Disputes Act is
inconsistent with the provisions of this Act, the
Provisions of this Act shall prevail.”
By the above provisions the surviving provisions of the
Trade Disputes Act became harmonized and synergized
with the National Industrial Court Act of 2006 and they, for
all intent and purposes, became part of a continuous whole.
The provisions dealing with conciliation and arbitration of
trade disputes are contained in Part I of the Trade Disputes
Act; it is part of the surviving provisions of the Act. Both
the Trade Disputes Act and the National Industrial Court
Act deal with the same subject the resolution of trade
disputes as well as inter and intra union disputes. Counsel
to the Appellants has argued that the provisions Part 1 of
the Trade Disputes Act were not one of the Acts of the
National Assembly envisaged or contemplated in the
wordings of Section 7 (3) of the National Industrial Court
Act of 2006,
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but another law which is to be subsequently passed.
It is trite that in interpreting a Statute, the duty of a Court
is to discover the intention of the lawmaker and in so doing
it must consider the words used in order to discover their
ordinary meaning, and then give use their ordinary
meaning as they relate to the subject matter - Merill
Guaranty Savings & Loans Ltd Vs Worldgate Building
Society Ltd (2013) 1 NWLR (pt 1336) 581,
Gbagbarigha vs Toruemi (2013) 6 NWLR (Pt 1350)
289, Commissioner for Education, Imo State Vs Amadi
(2013) 13 NWLR (Pt 1370) 133. And in doing so, a Court
must not give an interpretation that would defeat the
intention and purpose of the lawmakers, and it should
adopt a holistic approach and interpret the provisions
dealing with a subject matter together to get the true
intention of the lawmakers and should adapt a holistic
approach and interpret the provisions dealing with a
subject matter together to get the true intention of the law
maker and should aim at giving a Statute a purposeful
interpretation - Abia State University, Uturu Vs Otosi
(2011) 1 NWLR (pt.1229) 605, Ayodele Vs State
(2011) 6 NWLR (pt.1243) 309, National
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Union of Road Transport Workers Vs Road Transport
Employers Association of Nigeria (2012) 10 NWLR (Pt
1307) 170, Attorney General, Federation Vs Attorney
General, Lagos State (2013) 16 NWLR (pt 1380) 249.
A Statute must be read as a whole, and not parts in
isolation, and that the different parts of the Statute must be
interpreted in the light of the whole Statute and an effort
must be made to achieve harmony amongst its different
parts - Amalgamated Trustees Ltd Vs Associated
Discount House Ltd (2007) 15 NWLR (Pt 1056) 118,
Nigerian Army Vs Aminu- Kano (2010) 5 NWLR (Pt
1188) 429, Abubakar Vs Nasumu (No. 2) (2012) 17
NWLR (Pt 1330) 523.
Applying these principles to the interpretation of Section
7(3) of the National Industrial Court Act 2006 vis-a-vis the
provisions of Part 1 of the Trade Disputes Act, this Court
must say that it is unable to agree with the Counsel to the
Appellants that the provisions of Part 1 of the Trade
Disputes Act do not come within the contemplation of the
Act of the National Assembly referred to in Section 7(3) of
the National Industrial Court Act. If the provisions of Part 1
of the Trade Disputes Act were not contemplated, the
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National Industrial Court Act would either have repealed
them, as it did of Part II of the Trade Disputes Act or it
would have limited their scope of operation. Having not
done either and having said in its Section 53(2) that the
surviving provisions of the Trade Disputes Act must be
interpreted in a manner to bring them in conformity with
the provisions of the National Industrial Court Act 2006, it
means that the provisions of Part 1 of the Trade Disputes
Act must be read into the provisions of Section 7(3) of the
National Industrial Court Act as one of the Acts of the
National Assembly contemplated or envisaged.
To hold otherwise will be to suggest that though the
Legislature chose to preserve the provisions of Part 1 of the
Trade Disputes Act by not repealing it in the National
Industrial Court Act, it did not intend for the provisions to
be of any use as it "may" pass another law on the
conciliation and arbitration of trade disputes which will
then be operational under Section 7(3) of the National
Industrial Court Act. It is trite that there is always there is
a presumption against the legislature intending what is
unreasonable and inconvenient in the
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interpretation of Statute. Thus, it is trite that common
sense must be applied in construing Statutes and the
construction agreeable to justice and reason must be
adopted - Ibrahim Vs Sheriff (2004) 14 NWLR (Pt 892)
43, Elabanjo vs Dawodu (2006) 15 NWLR (Pt 1001)
76, Sobamowo vs Elemuren (2008) 11 NWLR (Pt
1097) 12. In Attorney General, Nasarawa State Vs
Attorney General, Plateau State (2012) 10 NWLR (Pt
1309) 419, the Supreme Court stated that no reasonable
Court or Tribunal will impute any absurd or unjust
consequences to a Statute or imply in a Statute
consequences that will lead to absurdity or injustice. The
position of the law in this respect is well set out in Maxwell
on the Interpretation of Statutes, 12 Edition by Langan,
1976 at page 199 thus:
"In determining either the general object of the
legislature, or the meaning of its language in any
particular passage, It is obvious that the intention
which appears to be most in accord with convenience,
reason, justice and legal principles should, in all
cases of doubtful significance, be presumed to be the
true one. An intention to produce an unreasonable
result is not to be imputed to a Statute if
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there is some other construction available.”
Thus, where words used in an enactment are open to two
interpretations and one construction will lead to an
absurdity while the other would give effect to what
commonsense shows was obviously intended, the
construction that accords with commonsense must be
applied. Commonsense dictates that the provisions of Part
1 of the Trade Disputes Act must be read into the
provisions of Section 7 (3) of the National Industrial Act,
2006 as one of the Acts of National Assembly referred to.
The first of the three questions that arose from the
submissions of the Counsel to the Appellants is thus
answered in the affirmative.
This takes us to the second question - whether the
provisions relating to conciliation and arbitration in the
Trade Dispute Act, Cap T8, Laws of Federation 2004 were
applicable to the claims of the Appellants. The resolution of
this question must necessarily turn on the interpretation of
the provisions of Trade Dispute Act on conciliation and
arbitration. These provisions are contained in Part 1 of the
Act which is headed "Procedure for settling trade disputes"
and Section 1 states that
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“where a trade dispute exists or is apprehended, the
provisions of this part shall apply in relation to the
dispute.” It proceeds in Section 2 to state that “In this
part, unless the context otherwise requires, ‘dispute’
means the trade dispute in question...” And Section 48
of the Trade Disputes Act defines “trade dispute” to mean
“any dispute between employees 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.” In other words for a dispute to be declared a
trade dispute within the meaning of Section 48, the
following ingredients must all be present (i) there must be
a dispute; (ii) the dispute must involve a trade; (iii) the
dispute must be between employers and workers or
between workers and workers; (iv) the dispute must be
connected with the employment or non-employment or the
terms of employment or the physical conditions of work of
any person - National Union of Road Transport
Workers Vs Ogbodo (1998) 2 NWLR (Pt 537) 189,
Attorney General, Oyo State Vs Nigeria
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Labour Congress, Oyo State Chapter (2003) 8 NWLR
(pt 821) 1.
Reading through the provisions of Part 1 of the Trade
Disputes Act, it is clear that their essence is to compel
parties to go through the conciliation and arbitration
process provided for in the provisions before they can
access the National Industrial Court for adjudication of
their disputes. Now, it is an established principle of
interpretation that where the right of access of a person to
Court is either taken away or restricted by any Statute, the
language of any such Statute or provision will not be
extended beyond its obvious meaning unless clear words
are used to justify such extension. This is mainly because it
is the practice of the Court to guard its jurisdiction
jealously. Thus, while interpreting any outer or restrictive
clause in a Statute the Courts usually scrutinize every
aspect of such provision with a view to ensuring that
everything done under such Statute is done strictly in
compliance with the provisions of the Statute. Where the
Court finds that there is a failure to strictly comply with
what the Statute provides for, such an act purported to be
done under the Statute would
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be ultra vires and would be declared null and void as such
action would be regarded not to have been carried out
under the said provisions of the Statute - Inakoju Vs
Adeleke (2007) 4 NWLR (pt 1025) 423, Maikyo Vs
Itodo (2007) 7 NWLR (pt 1034) 443, Olaleye-Ote Vs
Babalola (2012) 6 NWLR (pt 1297) 574.
Applying this principle of interpretation to the provisions of
Part 1 of the Trade Disputes Act it is clear that they apply
only what is referred to as a "trade dispute", and not to any
other type of dispute. This Court notes that Section 2 of the
Trade Disputes Act states that "no person shall
commence an action, the subject matter of a trade
dispute or any other inter or intra union dispute in a
Court of law.” and it proceeded to abate all pending
actions in all Court prior to the commencement of the
Section and it made contravention of the provision a
punishable offence. The Section was added by the Trade
Disputes (Amendment) Act of 1992. Reading this provision
along with the other provisions in Part 1 of Trade Disputes
Act, it is completely incongruous and out of place. Section 1
of the Trade Disputes Act is very clear that the provisions
in Part 1
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relate only to trade disputes, and made no mention of inter
or intra union disputes, and this provision was not amended
even when Section 2 was added to the Act. It is a settled
principle of construction of Statutes that where a Section
names specific things among many other possible
alternatives, the intention is that those not named are not
intended to be included - Udoh Vs Orthopaedic Hospitals
Management Board (1993) 7 SCNJ 244. Also, the
definition of "trade dispute" in Section 48 of the Act was
also not expanded to include inter or intra union disputes.
The law is settled that once a Statute defines a word,
phrase or term, the Court cannot go outside the Statute to
seek a meaning of that word, phrase or term not contained
in the definition in the Statute - Uhunmwangho Vs Okojie
(1989) 5 NWLR pt 122) 471. Kalu Vs Odili (1992) 6
SCNJ 76 and Shettima Vs Goni (2011) 18 NWLR (pt
1279) 413. Thus, any dispute that does not come within
the definition of trade dispute in Section 48 of the Trade
Disputes Act is not amenable to and/or covered by the
provisions of Part 1 of the Trade Disputes Act.
It is obvious that Section 2 of the Trade Disputes Act, 2004
was
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inserted to remove the jurisdiction hitherto possessed by
the High Court and the Federal High Court over trade
disputes and inter and intra union matters, it was not for
the purpose of making inter and intra union disputes
amenable to settlement procedure in Part 1 of the Trade
Disputes Act - Udoh Vs Orthopaedic Hospitals
Management Board supra, National Union of Road
Transport Workers Vs Ogbodo (1998) 2 NWLR (Pt
537) 189, Ekong Vs Oside (2005) 9 NWLR (Pt 929)
102 and Umoren Vs Akpan (2011) 22 NLLR (pt 62)
264. The sting has been taken out of the Section by the
provisions of Sections 53 (2) and 53 (3) of the National
Industrial Court 2006 which subjected the provisions of the
Trade Dispute Act to the overriding provisions of the
National Industrial Court Act and some of which are
Section 7 which vests exclusive jurisdiction over some
matters in the National Industrial Court and Sections 16 to
19 which grant only the National Industrial Court powers to
make certain orders. Therefore, in the spirit of harmonious
interpretation of Sections of a Statute, an inter or intra
union dispute would only be covered by the provisions of
Part 1 of the Trade Disputes Act if
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the nature of the dispute therein comes within the nature of
the disputes said to constitute trade dispute under Section
48 of the Act. Once the complaint of a plaintiff is not a
trade dispute, it cannot be caught by Section 7 (3) of the
National Industrial Court Act, 2006 - First Marine
Engineering Services Ltd Vs National Union of
Petroleum & Natural Gas Workers (2011) 23 NLLR
(Pt 65) 283.
It was not in dispute in the instant case that the dispute
submitted for adjudication by the Appellants before the
lower Court was an intra Union dispute; a dispute within
the Road Transport Employers Association of Nigeria. The
lower Court stated in the
Ruling that:
"... We totally agree that the cause of action discloses
an intra union dispute which by the provisions of
Section 54(1) of NICA 2006 is described as “dispute
within a trade union or an employers association.”
It was a dispute between the regional organs of the Road
Transport Employers Association of Nigeria and it had to
do with the holding of a National Delegates Conference of
the Union that took place on the 27th and 28th of February,
2007. The dispute was not between
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employers and workers or between workers and workers,
and it had nothing to do with nor is it connected with the
employment or non-employment, or the terms of
employment and physical conditions of work of any person.
It did not come within the definition of Trade Dispute in
Section 48 of the Trade Disputes Act. The National
Industrial Act 2006 recognized in its Section 54 that there
was a distinction between a trade dispute and an inter or
intra union dispute, and that they are not synonymous and
yet it did not expressly include intra union dispute as one of
the disputes covered Part 1 of the Trade Disputes Act.
This Court is not unaware of some decisions of the National
Industrial Court which say that by the provisions of Section
7(3) of the National Industrial Court Act 2006, inter and
intra union disputes must first go though the settlement of
disputes procedure contained in Part 1 of the Trade
Disputes Act before they can be brought to the National
Industrial Court by way of an appeal - see for example
Maritime Workers Union of Nigeria Vs Nigerian
Labour Congress (2005) 4 NLLR (Pt 10) 270, the
unreported decision in Suit No NIC/12/2007 - Association
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of Senior Staff of Banks, Insurance and Financial
Institutions (ASSBIFI) Vs Union Bank of Nigeria Plc
delivered on the 24th of January, 2008, Adamu Vs
Jalaludeen (2009) 14 NLLR (Pt 38) 272 and Anthony
Vs Iloduba (2010) 18 NLLR (Pt 50) 229. The reasoning
behind these decisions was explained by Kanyip, PJ in
Asuzu Vs Ajewole (2009) 14 NLLR (Pt 39) 434 at452
to 455 thus:
"... This Court has in a number of cases ruled that in
inter or intra union disputes, even after the
enactment of Section 7 of the NIC Act 2006, the
jurisdiction of this Court is appellate not original. In
the case of Association of Senior Staff of Banks,
Insurance and financial Institutions (ASSBIFI) vs
Union Bank of Nigeria Plc... this Court had cause to
review the authorities and antecedents pertaining to
the issue. The holding of this Court in that case
deserves to be quoted in full. To this Court-
Before the enactment of the NIC Act 2006, this Court
held in several cases that in intra and inter union
disputes, the jurisdiction of this Court to entertain
same was appellate not original... Specifically, the
legality of having to subject intra and inter-union
disputes to the
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procedure set out in Part 1 of the IDA was tested in
the case of National Union of Hotel and Personal
Service Workers v. National Union of Food Beverage
and Tobacco Employees and Anor. The Court, however
held it to be valid and legal. One of the reasons for so
holding was the provision of Section 24 of IDA which
provided that a right of appeal shall be from the IDA
to the NIC in cases of intra union disputes arising
from the organization and running of a trade union as
laid down in the union Constitution or in cases of
inter-union disputes arising from restructuring of
trade unions established under the MIA 1990. The
reasoning was that there could be no right of appeal
from a body unless that body has some jurisdiction to
hear the matter in the first place. And coupled with
the provision of Section 9 A(1) of the IDA, which bars
the commencement of an action in respect of a trade
dispute or any other inter or intra union dispute in a
Court of law, the NIC reasoned that since it is also a
Court of law, it could not assume original jurisdiction
in cases of trade disputes, and inter and intra union
disputes.”
Section 24, forming part of the Part 11 of
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the IDA has now been repealed by Section 63(1) of
the NIC Act 2006, and the other provisions of the IDA
by Sections 53(2) and (3) and 54(4) are subject to the
overriding provisions of the NIC Act and are to be
read with such modifications as to bring them into
conformity with the provisions of the NIC Act. The
question therefore remains whether under the NIC
Act an intra union dispute falls within the original
jurisdiction of the NIC Section 7(1)(a) of the NIC Act,
in giving jurisdiction to this Court in matters relating
to labour, trade unions, industrial relations and
matters incidental thereto among other matters, can
be said to have given a wide jurisdiction in respect of
the enumerated matters. But Section 7(1)(a) must be
read subject to Section 7(3) which provides as
follows.
“Notwithstanding anything 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) may go through the process of conciliation or
arbitration before such matter is heard by the Court.”
…this Court in interpreting Section 7 (3) in ASBIFI v
ICDA… had this to say –
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the word ‘notwithstanding’ in Section 7(3) is meant to
qualify the jurisdiction granted the NIC until
conciliation and arbitration, if provided for, have
been done. It is to reinforce this stance of the law
that Section 7(4) of the NIC Act provides that an
appeal shall be from the decision of an arbitral
Tribunal to this Court as of right in matters of
disputes specified in Section 7(1)(a) of the NIC Act...
The impact of this Subsection is that matters within
the purview of Section 7(1)(a) that is, matters in
respect of labour including trade unions and
industrial relations; environmental and conditions of
work, health safety and welfare of labour, matters
incidental thereto, which had to go through the
processes of Part 1 of the IDA will continue to go
through those processes even after the passing of the
NIC Act. In other words, those issues which for
instance, the IAF entertained before the passing of
the NIC Act will continue to be entertained by that
body in the spirit of Section 7(3) of the NIC Act… This
means therefore that, like trade disputes, intra-union
(and by extension, interunion) disputes are
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contemplated under Section 7(1)(a) of the NIC Act for
the purpose of Section 7(3) and so would not come
under the purview of the original jurisdiction of this
Court...”
This Court must say that it is unable to accept the logic in
the above reasoning. It is very obvious that the
interpretations of the provisions of the Trade Disputes Act,
as amended by the National Industrial Court Act, 2006, and
of the provisions of Sections 7(3) and 7(4) of the National
Industrial Court Act were guided by a pre-conceived notion
of what was, and what was desired to continue, instead of
by the clear and unambiguous words of the provisions. As
stated earlier, Section 1 of the Trade Disputes Act stated
that the arbitration and conciliation procedure provided for
in the Act was applicable only to trade disputes. The effect
of Section 2 which brought in and sought to lump trade
disputes together with inter and intra union disputes has be
ameliorated and practically obliterated by the provisions in
Sections 53(2), 53(3) and 54(4) of the National Industrial
Court Act. The Section 24 of the Trade Disputes Act which
suggested specifically that cases of intra-union
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disputes arising from the organization and running of a
trade union as laid down in the union Constitution or in
cases of inter-union disputes arising from restructuring of
trade unions should first go before the Industrial
Arbitration Panel for conciliation and arbitration before
coming to the National Industrial Court was in Part II of the
Trade Disputes Act which was expressly repealed by
Section 53(1) of the National Industrial Court Act 2006,
and it was not reproduced in any Section of the National
Industrial Court Act. The definition of trade dispute was not
extended to cover intra and/or inter union disputes either
in the provision of Section 48 of the Trade Disputes Act or
of Section 54 of the National Industrial Court Act.
The provisions of Sections 7(3) and 7 (4) of the National
Industrial Court Act cannot by any stretch of imagination
be interpreted to extend the meaning and purport of the
provisions of the Trade Dispute Act, as amended, beyond
the scope of the ordinary meanings of the words contained
in the Statute. It is correct that Section 7(3) provides some
possible limitations on the direct exercise of original
jurisdiction by the
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National Industrial Court in matters in which the Court has
exclusive jurisdiction under Section 7(1)(a), but it did not
focus that limitation only on the conciliation and arbitration
procedure contained in the Trade Disputes Act and it
recognizes the power of the National Assembly to
promulgate other laws that may provide for conciliation
and arbitration procedure for other matters not expressly
stated in the Trade Disputes Act. And the provision of
Section 7(a) is generic and it covers matters stated in
Section 7(1)(a) that are presently covered by the Trade
Disputes Act or those which may in future be directed by
law yet to be made to be referred to the Industrial
Arbitration Panel. The intendment of Sections 7(3) and 7(4)
is not circumscribed by the Trade Disputes Act; it is beyond
the Act. A read through the complete reasoning of the
National Industrial Court in Asuzu Vs Ajewole supra shows
the continuous struggle by the Court to extend the meaning
of words of the Trade Dispute Act, as amended, and of the
National Industrial Court Act beyond their ordinary
grammatical meanings to achieve a desired end.
The decisions of the National Industrial Court,
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post the passing of the National Industrial Court Act of
2006, that inter and intra-union matters must undergo the
conciliation and arbitration procedure in Part 1 of the
Trade Dispute Act before they can come before the Court
by way of an appeal were, with respect, predicated on
presumptions, conjectures and what the Court would prefer
to happen, rather than on the clear provisions of the
Statute. It is not the duty of the Court to ascribe meaning
to the clear, plain and unambiguous provisions of a Statute
in order to give them a slant which accords with the Court's
own view - lzedonmwen Vs Union Bank of Nigeria Plc
(2012) 6 NWLR (Pt 1295) 1. This is particularly more so
where the Statute in question seeks to restrict access of
citizens to Court, as in this case, because the wordings of
such a Statute must be interpreted strictly and must not be
stretched beyond its ordinary meaning unless the need for
such stretched interpretation is expressly stipulated in the
Statute.
The provisions of Part 1 of the Trade Disputes Act were not
applicable to the case of the Appellants before the lower
Court which was on an intra union dispute. The point was
conceded by
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the National Industrial Court in one of its decisions,
Aghwefeada vs Asemota (2011) 22 NLLR (pt 63) 413,
wherein it stated that “a claim that essentially relates to
disputes and/or are on occupation of seats and/or
election of off icials of a trade union is an
organizational dispute for which the NICA 2006 has
rested power in this Court to adjudicate upon.” The
second question in this appeal is thus answered in the
negative.
This resolution of the second question raised in the
arguments of the Counsel to the Appellants ordinarily
determines this appeal. However, in view of the fact that
this Court is not the final Court in the judicial hierarchy, it
is wise that it goes further to look at the third question
raised in the arguments of Counsel to the Appellants, in
case it turns on a further challenge that its findings on the
second question are wrong - Ovunwo Vs Woko (2011) 17
NWLR (Pt.1277) 522, Iwunze Vs Federal Republic of
Nigeria (2013) 1 NWLR (Pt 1334) 119 and University
of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.
In resolving the third question, this Court will assume that
the provisions of Part 1 of the Trade Disputes Act were
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applicable to the claims of the Appellants.
The third question is whether, in the circumstances of this
case, the provisions of Part 1 of the Trade Dispute Act, Cap
T8, Laws of Federation, 2004 on conciliation and
arbitration provisions procedure were applicable.
It is settled law that it is the case of the plaintiff as
endorsed on the writ of summons and elaborated in the
statement of claim or any other originating process that
determines the jurisdiction of the Court - Elelu-Habeeb Vs
Attorney General, Federation (2012) 13 NWLR (pt
1318) 423, Merill Guaranty Savings & Loans Ltd Vs
WorldGate Building Society Ltd (2013) 1 NWLR (Pt
1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR
(pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR
(pt.1377) 274.
The case of the Appellants in the affidavit in support of the
originating summons was that on the 23rd of June 2005,
after more than three years of lack of action over the
complaints of the members South East and South-South
Zones against the Respondents over several issues, the
fourth and fifth Appellants issued a notice of declaration of
trade dispute on behalf of members of the two zones and
served same on
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the Secretary of the Road Employers Transport Association
of Nigeria and that the notice was given for twenty-one
days in l ine with the provisions of the amended
Constitution of the Union of September 2003. It was their
case that they thereafter, on the 19th of July, 2005, gave
information on the declaration of a trade dispute against
the Respondents to the Honorable Minister of Employment,
Labour and Productivity and that on the same day the late
National Vice President of the Association, Etubon Eyo
Honesty, duly complied with the provisions of the Trade
Dispute Act by completing Form TD/3 and submitting same
to the Honorable Minister of Employment, Labour and
Productivity. It was their case that upon the receipt of their
notification of trade dispute, the Honorable Minister of
Employment, Labour and Productivity by a letter dated the
17th of August, 2005 invited both the Appellants and the
Respondents to a meeting at the Conference Room of the
Honorable Minister to be held on the 30th of August, 2005.
It was the case of the Appellants that at the meeting of the
30th of August, 2005 the issues contained in the
notification of a trade dispute were not
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resolved and the meeting deadlocked and the Ministry
promised to call another meeting, but it was yet to do so till
date. It was their case that before the meeting of the 30th
of August, 2005, the Honorable Minister of Employment,
Labour and Productivity wrote a letter dated the 25th of
July, 2005 refusing to approve the request of the
Respondents to convene a National Delegates Conference
of the Road Employers Transport Association in view of the
intra union crisis engulfing the Association. It was their
case that in the course of investigating the first complaint
of the Appellants on the notification of trade dispute with
respect to the Nigerian Security and Minting Company Plc,
the Honorable Minister by a letter dated the 14th of July,
2006 confirmed the crisis existing in the Association. It was
their case that up till now, the intra union crisis and
internal disputes within the Association have not been
resolved, including the very fundamental issues raised by
the Appellants which were very basic to the existence or
proper running of a union. It was their case that this was
the state of affairs when the Respondents proceeded to
purport to hold a National
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Delegates Conference of the Association in Abeokuta on the
27th and 28th of February, 2007 and that the holding of the
Conference without first resolving the crisis existing within
the Union has further deepened the crisis as only a faction
of the Association held the Conference without carrying a
substantial number of members, especially those of South
East and South-South Zones, along.
It was on the basis of these facts that the Appellants
approached the lower Court and posed the questions
contained on the originating summons and sought the two
prayers thereon; to wit
i. A declaration that the purported holding of the National
Delegates Conference of the RTEAN by the defendants at
Abeokuta Ogun State on the 27th and 28th of February,
2007 without the resolution of the issues raised in the
plaintiffs Notice of Trade Dispute is unlawful, illegal, null
and void and of no effect whatsoever.
ii. An order of the Court directing the defendants and all
parties concerned in the intra union dispute of RTEAN to
resolve all major intra union disputes by involving all zones
of the Union before holding a united and an all embracing
National Delegates
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Conference.
Can it be said in the circumstances that the case of the
Appellants was brought before the lower Court
prematurely, without they having first exhausted the
settlement procedure contained in Part 1 of the Trade
Disputes Act? The simple answer is, No. Firstly, the facts as
contained in the affidavit show that the Appellants did
make an attempt to have the dispute mediated or arbitrated
over a number of years between the parties and later
through the office of Honorable Minister for Labour and
Productivity. The facts show that the mediation or
arbitration was still ongoing and that the Honorable
Minister refused to approve the request of the Respondent
to convene and hold a National Delegates Conference
without the resolution of the dispute. The Appellants
alleged that Respondents defied the ongoing mediation and
the directive of the Honorable Minister and proceeded to
convene and hold a National Delegates Conference in
Abeokuta on the 27th and 28th of February, 2007. This was
what prompted the Appellants to approach the lower Court
and, as it is obvious from their claims, they did not pray the
lower Court to resolve the dispute between them, but to
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nullify the convening and holding of the National Delegates
Conference and to direct the parties to go and resolve all
pending intra union disputes between them before holding
an all embracing National Delegates Conference. This was
a matter for the lower Court to deal with directly, quickly
and positively and not a matter for the Industrial
Arbitration Panel.
Secondly, the prayers sought by the Appellants were a
declaratory relief and an order in the nature of a
mandamus and by the provisions of Sections 17 (1) and 19
(b) of the National Industrial Court Act, only the National
Industrial Court could grant the orders, the Industrial
Arbitration Panel was not so empowered. The position is
that in such instances, sending such matters to go through
the conciliation and arbitration process is a complete waste
of time and that it is a matter that the National Industrial
Court should take in its original jurisdiction - Ugwu Vs
Ogboso (2010) 21 NLLR (Pt 58) 164 and Aghwefeada
Vs Asemota (2011) 22 NLLR (Pt 63) 413.
The case of the Appellants was thus not one suited for
conciliation and arbitration. The third question arising from
the arguments of Counsel to
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the Appellants is also answered in the negative.
In conclusion, this Court finds merit in this appeal and it is
hereby allowed. The decision of the National Industrial
Court in Suit No NIC/7/2007 contained in the Ruling
delivered by Honorable Justices M. B. Dadda, M. N. Esowe,
A. Ibrahim and O. A. Shogbola on the 18th of May, 2009 is
hereby set aside. The case is remitted to the National
Industrial Court sitting in Kano for further proceedings and
the hearing of the matter in its original jurisdiction. The
parties shall bear their respective costs of this appeal.
These shall be the orders of this Court.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: My
learned brother Habeeb Adewale O. Abiru JCA has
extensively dealt with the issues in controversy in this
appeal. I am in agreement with His Lordship's reasons and
conclusions and find merit in this appeal.
I also allow the appeal with the costs awarded and set aside
the Ruling of the lower Court. In concurrence with the lead
Judgment, this case is remitted to the National Industrial
Court sitting in Kano for hearing on its merits.
AMINA AUDI WAMBAI, J.C.A.: I have read in advance
the lead
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Judgment delivered by my learned brother HABEEB A. O.
ABIRU, JCA. He has comprehensively dealt with all the
issues in the appeal. I adopt his reasoning and conclusion
as mine. I also allow the appeal and set aside the Ruling of
the Lower Court. I abide the consequential orders therein.
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