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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

 

 

BEFORE HIS LORSHIP: HON. JUSTICE E. D. SUBILIM

 

 

DATE: 22ND JULY, 2025                                     

SUIT NO. NICN/ABJ/221/2024

 

BETWEEN:                                                                 

 

AMALGAMTED UNION OF PUBLIC 

CORPORATIONS AND CIVIL 

SERVICE TECHNICAL AND                       C LAIMANT/RESPONDENT

RECREATIONAL SERVICE 

EMPLOYEES (AUPCTRE)

 

AND

 

ACCOUNTANT GENERAL 

THE OF FEDERATION                                         DEFENDANT/APPLICANT

 

 

REPRESENTATION:

Victor Ogbonna Esq., for the Claimant/Respondent

Yahaya Abubakar Esq., (Assistant Chief State Counsel) for the Defendant/Applicant

 

RULING

 

  1. The Claimant commenced this matter on the 6th day of August, 2024 by way of Complaint and same was duly served on the defendant. The Defendant on the 17th of December, 2024 brought a motion on notice seeking extension of time to file a memorandum of conditional appearance. This motion was moved and granted on the 4/03/2025. The Applicant also filed a notice of preliminary objection challenging the competency of the Claimant to commence this suit and the lack of jurisdiction of this Court to entertain the Claimant’s suit. The reliefs sought by the Applicant are:
    1. An order striking out this action for failure to activate the dispute resolution mechanisms set out in Part 1 of the Trade Dispute Act, cap T8 LFN, 2004
    2. An order dismissing this suit for not being competent to be entertained by this trial court for want of jurisdiction.
    3. And order for costs in favour of the defendant/applicant against the claimant/respondent as this court may deem fit to award.
    4. And for such further order (s) as the court may deem fit to make in the circumstances.

 

2.   The applicant file a 14 paragraphs affidavit in support of the Notice of Preliminary Objection and attached to the motion, a written address which the applicant adopted as his oral argument.

 

3.   Upon being served with the said application the Claimant filed a 20 paragraphs counter affidavit deposed to by one Ameh Job Onuh, a legal practitioner in the firm representing the Claimant. Also accompanying the counter affidavit is a written address filed by the respondent and was adopted as respondent’s oral submission before this Court in opposition to the Notice of Preliminary Objection.

 

4.   The brief facts of this case as presented by the applicant is that sequel to a Circular by the Federal Government a weigh – in allowance was granted to Radio, Television, Theatre and Arts Workers Union (RATTAWU) and the respondent seeks to lay claim to the check-up dues deducted from the accrued allowances. The applicant stated that the respondent filed a suit at the Federal High Court Abuja in suit No. FHC/ABJ/332/2024 claiming from the applicant the check-up dues deducted from the allowance insisting that it should be paid to it. It is the case of the applicant that the claimant under this circumstances ought to approach the Minister of Labour for referral to initiate a Trade Dispute.

 

5.   On the part of the Respondent, it argued that there is no trade dispute whatsoever between it (Claimant) and RATTAWU as their activities and membership are distinct. The respondent argued that the claims before this court only relates to some illegal and unlawful payment of check-up dues of its members to RATTAWU and has nothing to do with the weigh-in allowance. Claimant further stated that the weigh-in allowance is for workers and not union-specific as explained by the Minister of Labour and further avers that the said suit at the Federal High Court was discontinued and struck out on the 23/10/2024.

 

 

 

 

DEFENDANT'S/APPLICANT’S WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION.

 

  1. In arguing the Notice of Preliminary Objection Counsel to the Applicant formulated two issues for the determination of this court. the issues which Applicant argued together are:

 

  1. Whether this action is liable to dismissed and/or

struck out for lack of jurisdiction.

 

2. Whether or not the jurisdiction of this Honourable Court is duly activated to entertain this matter arising from the failure of the claimants/parties to undergo the processes of conciliation or arbitration and arbitral tribunal etc. in line with Part 1 of the Trade Dispute act, cap t8 LFN, 2004 and also in contravention of section 7(3) & (4) of the National Industrial Court Act, 2006? 

 

  1. Taking issues one and two together, Counsel submitted that the answer to the above question is in the affirmative. He went on to state that there is fairly well established procedure laid down by law, which need to be observed in the quest for resolution of such trade dispute. These are: resolution by any internal settlement mechanism-that is settlement by means of a predetermined or agreed procedure between the parties; resort to mediation, conciliation and arbitration before the Industrial Arbitration Panel (IAP); and finally adjudication by the National Industrial Court (NICN). 

 

  1. It is the position of Counsel that Cursory analysis of the writ of Complaint, statement of facts filed by the Claimant it is clear that the reliefs sought aforementioned from the Court borders on a trade dispute and that it is equally clear that the borne of contention between parties culminating into this Suit as seen vide the Claimant's statement of facts is on the propriety or otherwise of the Defendant's transferring, withholding and/or remitting the remittances of deductions from the salaries of workers; some Civil servants across various Ministries, Department, Agencies of Government (MDAs) with the said members of which the Claimant and Radio Television Theater Art Workers Union (RATTAWU), are locked in a disputed claim(s) on the similar and same subject matter, both and simultaneously claiming ownership of membership allegiance from personnel of the Council for the Regulation of Freight Forwarding of Nigeria (CRFFN), Federal Ministry of Works, Federal Ministry of Lands and Housing, Federal Roads Maintenance Agency (FERMA), Ministry of Trade and Investment, National Institute of Hospitality Tourism (NIHOTOUR), National Institute of Cultural Organization (NICO), Standards Organization of Nigeria (SON), National Population Commission (NPC), National Orientation Agency (NOA), National Youth Service Corps (NYSC), STATE HOUSE, Federal Ministry of Health, Nigeria Hydrological Services Agency (NIHSA) and Ministry of Education. The Personnel of these Federal Government's MDAs are subjected to statutory deductions as Weigh-in Allowances/Union dues (as pre- condition of their belonging to the Union), drawing from their (members) salaries for the provision of good welfare and care services to the members/enrollees by the Union. Now the question to answer is, does this amount to a trade dispute? He referred the Court to Section 1 and 48 of the Trade Dispute Act Cap T14 LFN and the cases of NURTW v. Ogbodo [1998] 2 NWLR (Pt.537) 189; Tidex (Nig.) Ltd v. Maskew [1998] 3 NWLR; Nigerian Union of Teachers, Niger State 11 (Pt.542) 404; State v. Conference Of Secondary School Tutors (Cossi) Niger State Chapter & Ors [2011] LPELR-20028 (CA). 

 

  1. Learned Counsel also posited that by the provision of Section 58 of the National Industrial Court, 2006, the Act a trade dispute is define as any dispute between employers and employees, including disputes between their respective organizations and Federations which is connected with the employment or non-employment of any person, terms of employment and physical conditions of work of any person, the conclusion or variation of a collective agreement; and an alleged dispute. Continued he stated that in INEC v. Association of Senior Civil Servants of Nigeria (2007) LPELR -8882 (CA) the Court set out the Section 1A of the Trade Dispute Act. These are (a) the subject matter of trade dispute, or (1) any inter or intra union dispute. And according to the definition of the term “trade dispute" already set out above, the dispute covered is (1) disputes between employers and workers; or (2) between workers and workers, which are connected with employment or non- employment, or the terms of employment and physical conditions of work”.

 

Furthermore, the Trade Dispute Act, Laws of Federation, 2004 and the Section 2 of the Trade Dispute Act provides that:

“Subject to the provisions of subsection (3) of section 21 of this Act, no person shall commence an action, the matter of a trade dispute or any inter or intra-union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void”

He placed reliance on the case of Oil And Industrial Services Ltd. V. Oguntuase & Ors. [2020] LPELR-50380(CA).

 

  1. In furtherance to the above, Counsel stated that, the dispute herein is between employer (the Defendant representing the Federal Government) and workers (the Claimant's members who are staff of the Federal Government) on one hand, and on the other hand, inter Union; between the Claimant and RATTAWU and the dispute is connected to the terms of employment touching on which Union (amongst Claimant and RATTAWU) shall take charge and Be entitled to take ownership of remittances accrued from deductions of Check-off dues/weight-in allowance from the salaries of workers; members of Radio Television, Theatre and Arts Workers Union, Members of Union of Journalists as well as Workers in the Media and Cultural Sectors of the Federal Public Service, for the provision of welfare and members' care services. That a number of case law authorities have guided the Court that when faced with issues of this nature (trade dispute), based on parties conflicting demand, to first and foremost have recourse to the Writ of Summons which is the Complaint and Statement of facts to see whether or not the Court is competent to decide on the case. He cited in support of his assertion the case of Bank of Nigeria Plc V. Abraham [2008]18 NWLR (Pt. 1118)172 S.C.; Onuek Wusi & Ors. v. The Registered Trustees of Christ Methodist Zion Church [2011 6 NWLR 341.

 

  1. According Counsel a careful study of the complaint and the Statement of facts discloses at Paragraphs 1 and 4. And I reproduce same (as the wordings are also the same) thus: “The Claimant is a registered trade union congress duly registered Under the provisions of the Trade Unions Act (as amended) who operates across the thirty-six (36) states of the Federation, including the Federal Capital Territory, Abuja also in Paragraph 4, the Claimant avers that:

"The Claimant further aver that it has members across various Ministries, Department and Agencies of Government which includes Council for Regulation of Freight Forwarding of Nigeria (CRFFN), Federal Ministry of Lands and Housing, Federal Roads Maintenance Agency (FERMA), Ministry of Trade and Investment, National Institute of Hospitality Tourism (NIHTOUR), National Institute of Cultural Organization (NICO), Standards Organization of Nigeria (SON),National Population Commission (NPC), National Orientation Agency (NOA), National Youth Service Corps (NYSC), STATE HOUSE, Federal Ministry of Health, Nigeria Hydrological Services Agency (NIHSA) and Federal Ministry of Education. Similarly, by the nature of this dispute the Claimant were duly bound to approach the Federal Ministry of labour and productivity for referral to the Industrial Arbitration Panel for adjudication on the dispute between the parties. But, the Claimant, in a haste, rushed to this Court in error with the reliefs sought when they had not exhausted 14 the provision of Part 1 of the Trade Dispute Act, Cap T8 Law of Federation, 2010.

 

  1. Furthermore, Counsel contended that the Claimant cannot approach this Court as a Court of first instance in this Suit having not exhausted the requisite procedure hence this Court lacks Jurisdiction to adjudicate upon a Trade dispute as Court of first instance. See National Union Of Hotels and Personal Services Workers v. National Union Of Food Beverages And Tabacco Employees (2004) (Pt.2) at 286 (incomplete citation). This Suit can only lie to this Court as an appellate Jurisdiction and not original hence this action is bound to fail before the Court as Court of first instance. See Macfon V. UAC Ltd (1962) A.C. 152; UBA Plc v. Ekpo [2003] 12 NW LR (Pt. 834)332. Furthermore, trade dispute invokes the conciliation" and "arbitration" jurisdiction provided in the Trade Disputes Act, cap, T8, Laws of the Federation of Nigeria 2004. He placed in reliance the case of Eguamwense v. Amaghizemwen [1993] 9 NWLR (Pt. 315) 1.  More so by the provision of Section 4(2) of the Trade Dispute Act, the parties are enjoined to exhaust all arrangements for amicable settlement of dispute and where no arrangement for amicable settlement is in place to submit to mediation. Also, Article 32(2) (a) (b), (i), (ii) & (iii) of the Constitution of the Nigerian Labour Congress (NLC), 2019 (as amended) and Rule 10 (B) of the Constitution of Trade Union Congress (TUC), 2012 is in support of this provision/authorities. He urge the Court to resolve this issue against the Claimant and in favour of the Defendant and dismiss or strike out this case and equally hold that it lacks jurisdiction to entertain this Suit.

 

CLAIMANT’S/RESPONDENT’S WRITTEN ADDRESS IN OPPOSITION TO THE DEFENDANT NOTICE OF PRELIMINARY OBJECTION.

  1. The Respondent in arguing its case formulated a lone issue for determination in opposition to the notice of Preliminary Objection to wit:

 

Whether this Honourable Court has the jurisdiction to determine the Claimant’s case.

 

  1. It is the submission of Counsel that this Court has the jurisdiction to determine the Claimant’s suit on its merit and that what confers jurisdiction on a Court is the reliefs claimed by the Plaintiff. He cited in support of his assertion the case of  Adekanye v. Comptroller Of Prisions [2000]12 NWLR (Pt. 682) 563 @ 565 and Buhari v. Yusuf [2004] 9 NWLR (Pt. 877) 1.  He went on to state that in determining a preliminary objection challenging the jurisdiction of court to determine a matter, the Court will consider only the Writ of Summons and Statement of Claim. He placed reliance on the case of Governor of Kwara State vs Lafiagi [2005] 5 NWLR (Pt. 917) 139 @ 151. Paras. D and N.I.M.R vs. N.U.R.T.W (2010) 12 NWLR (Pt. 1208) 328 @ 347. Paras.  He reiterated that in the instant case, the defendant has brought this application challenging the jurisdiction of this Court to entertain this matter in that the Claimant had not fulfilled the condition precedent by resorting to Mediation, Conciliation and Arbitration of the Industrial Arbitration Panel (IAP) before it approached this Court due to the fact that there was a trade dispute between the Claimant and Radio, Television, Theatre and Arts Workers Union (RATTAWU).  That the defendant cited Sections 1 & 48 of the Trade Dispute Act, Cap T14, LFN, 2014, and the cases of Nigerian Union of Teachers, Niger State v. Conference Of Secondary School Tutors (COSST) Niger State Chapter & Ors [2011] LPELR-20028 (CA); Oil and Industrial Services Ltd. v. oguntuase & ors [2020] LPELR-50380 (CA). That it is pertinent to state that the Claimant does not have any trade dispute issue whatsoever with Radio, Television, Theatre and Arts Workers Union (RATTAWU). Similarly, a critical examination of the Claimant’s case would show that the issue in controversy relates to the diversion of check-off/union dues of National Commission and Monuments (NCMM) which was supposed to be remitted to the Claimant but the defendant illegally and unlawfully remitted the said dues to Radio, Television, Theatre and Arts Workers Union (RATTAWU) without any legal justification. Interestingly, the defendant had admitted to the non-remittance and illegal payment of these check-off dues to RATTWU. It is crystal clear that the document approved circular on review of weigh-in allowance for workers (Exhibit AGF1) heavily relied on by the defendant as constituting trade dispute purportedly between the Claimant and RATTAWU has nothing whatsoever to do with the issue of the check-off dues the Claimant complained about.

 

  1. That conversely, assuming without conceding that the approved circular on review of weigh-in allowance for workers (Exhibit AGF1) relates to this case, we submit that the said circular was clarified by the Ministry of Labour and Productivity to the extent that the weigh-in allowance is not union-specific but for workers. This goes to show that the said weigh-in allowance applies strictly to individual workers in the media and culture sectors of the Federal Public Service and not to unions as alleged by the defendant in its objection. See Exhibit ‘B’. In essence, the Claimant case is not a trade dispute and therefore, sections 2, 48 of the Trade Dispute Act are not applicable to this case. We therefore most humbly submit that the laws cited by the defendant and the said document (Exhibit AGF1) relied on are not relevant and applicable to the fact and circumstances of this case. 

 

  1. Counsel posited that the law is settled that the Court of law does not exist for purposes of entertaining flimsy or frivolous applications as in the instant application. Thus, the application of the Defendant borders on trivialities and unnecessary technicalities which will not avail it in this case. The law had since moved beyond the era where trivial technicalities are encouraged to defeat the cause of justice. He referred the Court to the case of Nwosu v. Imo State Enviromental Sanitation Agency [1990] 2 NWLR Pt. 135.  Consequently, Counsel contended that entertaining the Defendant’s application would manifestly prejudice the Claimant’s case, as this application constitutes an abuse of court process, the infraction of which we invite this Court to vehemently refuse. Abuse of Court process consists of the improper use of judicial process by a party in litigation to interfere with the due administration of justice. He relied on the case of Amaefule v. The State [1988] 2 NWLR (Pt. 75) 156 and Nyah v. Noah (2007) 4 NWLR (Pt. 1024) p. 320 @ 339 -340 paras. G – A. 

 

  1. Counsel equally that the applicant has erred on the side of abuse of judicial process by bringing this application to delay the hearing and determination of this case. Accordingly, he urge on this Court not to grant this motion in the overall interest of substantial justice, as the Defendant had already admitted to the claims of the Claimant in the case reiterating that Defendant/Applicant’s conduct is a gross abuse of the judicial process which this Court should not tolerate. He cited in support of his position the case of Ogboru v. Uduaghan [2013] 13 NWLR (Pt. 1370) S.C. 33. 

 

  1. Counsel posited that where an abuse of the process of the Court is established the peremptory order for the Court to make is to dismiss the application and no reason is required to be given. He relied on the case of Nyah v. Noah P. 337, Para. G (Supra).  He urge this Court to resolve this issue in favour of the Claimant/Respondent and against the Defendant/Applicant.

 

 

 

COURT’S DECISION

 

  1. I have the opportunity of considering the Notice of Preliminary Objection filed by counsel to the Defendant/Applicant and the Counter Affidavit and address of counsel to the Claimant/Respondent. I hold the view that the issue for the determination of this application is:

 

Whether this suit as presently constituted this Court is competent and has the vires to entertain it.

 

  1. From the Notice of Preliminary Objection, the main prayer of the Applicant seeks that this suit be struck out and or dismissed for want of jurisdiction. The jurisdiction of a court is a threshold issue. In an attempt to underscore the concept, it is desirable to remember that it is a well settled principle of law, enunciated in very many decided cases of our apex Court, that the word 'jurisdiction' means, the authority which a Court has to decide matters before it or to take cognizance of matters presented before it for its determination. See Ndaeyo v. Ogunaya [1977] 1 SC 11. The limit of this jurisdiction may be circumscribed or restricted by a constitution or statute. The question of jurisdiction of a Court is so fundamental because a decision of the Court without jurisdiction confers no right. It creates no obligation because it is made without jurisdiction. However, whether the jurisdiction of the Court was curtailed or not, the Court must in whatever situation it finds itself bear in mind whether it has the competence to exercise its jurisdiction: See Madukolu v. Nkemdilim [1962] All NLR 587; (1962) 2 SCNLR 341.

 

  1. On what determines the jurisdiction of a Court, the Court of Appeal held in Nasarawa State Specialist Hospital Management Board & ors v. Mohammed [2018] LPELR-44551 (CA) per Ekanem, JCA thus:

 

“It is well settled that in determining the jurisdiction of a Court, it is the claim of the claimant that is to be examined. The Court is to examine the facts of the case as well as the reliefs to see if they fall within the jurisdiction of the Court as donated by the enabling law. If they do, then the Court is to assume jurisdiction. If they do not fall within the jurisdiction of the Court, the Court is to decline jurisdiction. See Adeyemo v. Opeyori [1976] 9-10 SC 31, Tukur v. Government of Gongola State [1989] 4 NWLR (Pt. 117) 517 and Oloruntoba-Oju v. Abdul-Raheem [2009] LPELR-2596 (SC).”

 

  1. Now it is the case of the Applicant that this court lacks the power to hear this case because the dispute resolution mechanism set out in Part 1 of the TDA has not been activated this being a Trade Union dispute. It is the case of the Applicant that a look at the statement of facts of the claimant especially paragraphs 1, 4, 6, 7, 11 and 12 leaves no one in doubt that the cause of action in this suit is a trade dispute that ought not to be in this court. Applicant further adumbrated that the dispute is strictly between employer and employee on the one hand and on the other an inter-union dispute between Respondent and RATTAWU.

 

  1. The Respondent seems to be arguing that there is nothing in the statement of facts of this case to connote a trade dispute in any form. Respondent contended that the issue before this court has to do with the diversion of check-up dues of National Commission and Monuments meant for Respondent but Applicant illegally and wrongfully remitted the dues to RATTAWU.

 

  1. Generally, the definition of a trade dispute in section 48 of the Trade Dispute Act seems to encompass conflict arising from employment relationships, including issues related to terms of employment, working conditions or disputes between workers themselves or between workers and employers. The essence of the law is to regulate and resolve such disputes to promote industrial harmony. Putting it differently, a trade dispute arises when there is a disagreement or conflict between parties, either employers, workers or trade unions, concerning employment related matters such as terms and conditions of employment; non-employment; work-place conditions, trade union activities and intra and inter – union disputes. On the authority of NLC v. FGN Unreported NICN/ABJ/149/2021(2000) delivered on June 9, 2022, this Court reaffirmed that trade dispute also arise from collective actions like strikes on broader economic or social policies affecting workers. In fact, in Oak Pensions ltd v. Olayinka (2017) LPELR-43207 (CA) the Court of Appeal held that unfair labour practices could constitute a trade dispute if they involved broader issues affecting workers’ rights such as victimization or failure to adhere to collective agreements and not disputes strictly based on individual contracts of service.

 

  1. I have taken a close look at the statement of facts filed before this court and the reliefs sought and I see no where the claims of the Respondent come within the provision of section 48 of the Trade Dispute Act. No where did the claimant made reference to dues related to weigh-in allowances wrongly and or illegally paid to RATTAWU. I find that the claims before this court only relates to the “illegal and unlawful” remittances of check-up dues by Applicant to RATTAWU which Respondent seeks to have it reversed. The evidence to the effect that there is a pending suit in this regard at the Federal High Court was effectively proved otherwise through a drawn-up order striking out the suit and marked as Exhibit A attached to the counter affidavit. What more, the much-touted weigh-in allowance which the Applicant seems to hinge this preliminary objection to, was explained away a letter from the Minister of Labour on “Re-Request for an Interpretation of Condition of Benefitting Weigh-In Allowance” dated 5/12/2012 marked as Exhibit B to the counter affidavit where the allowance was interpreted in the following word: “… the payment of Weigh-In Allowance in the Media and Culture sectors of the Federal Public Service is not union-specific but for workers.” I therefore find that there is no trace or element of trade dispute in the suit initiated by the Claimant/Respondent in this court. I hold that this suit as presently constituted is within the jurisdiction of this court. I so hold.

 

  1. On the whole for the reasons advanced the Notice of Preliminary Objection is hereby refused and is accordingly hereby dismissed for being frivolous and lacking in merit.

 

  1. Ruling is hereby entered. Cost of N200, 000.00 is hereby awarded against the Applicant. 

 

 

 

 

…………………………….

Hon. Justice E. D. Subilim

     JUDGE