Globerstar Engr. Co. Limited V. Sylvester Omatseye & 65 Ors (2008)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is a consolidated appeal against 2 decisions of 2 different judges of the Warri Division of the High Court of Delta State in Suit No. W/91/96. The first decision was the ruling of Narebor, J. dated 14th April, 1997, while the second decision was that of Akpomudjere, J. dated 27th October, 2000. The 66 Respondents, who were plaintiffs at the High Court, took out a writ, endorsed with the following claim:

“The plaintiffs’ claim against the defendant is as follows: – The sum of N50, 372,894.00 (Fifty Million, Three Hundred and Seventy-Two Thousand, Eight Hundred and Ninety Four Naira) being the total sum of money accruing and due to the plaintiffs as salaries and benefits, the plaintiffs being bona fide employees of the defendant, from 10th day of April, 1992 to the 15th day of March, 1996 based on the yearly collective agreement entered into between NUPENG (National Union of Petroleum and Natural Gas Workers) and the Defendant which the defendant had failed to pay despite repeated demands on her to do so. The defendant carries on business at Mcdermott Road, Warri, a place within the jurisdiction of this Honourable Court.

Salaries and benefits due and accruing to the plaintiffs as bona fide employees of the defendant from the 15th day of March, 1996 till judgment is entered by this Honourable Court based on the yearly collective agreement between NUPENG (National Union of Petroleum and Natural Gas Workers) and the defendant. The defendant carries on business at Mcdermott Road, Warri, a place within the jurisdiction of this Honourable Court.”

Before the exchange of pleadings, the plaintiffs brought a motion on notice dated 12th December, 1996 and filed on 16th December, 1996 seeking for the following main relief: –

“An interlocutory order restraining the Defendant/Respondent by itself, its servants, workmen and/or staff/employees from molesting, harassing, embarrassing, arresting or causing to arrest or in any manner however, and/or suspending, transferring or terminating the plaintiffs/Applicants’ employment with the defendant/respondent pending the determination of the substantive Suit tiled.”

While this motion on notice was still pending, the plaintiffs filed an ex-parte motion seeking for an interim relief in terms of the main prayer in the pending motion on notice. This ex-parte application was heard and granted on 10th February, 1997. The motion on notice for interlocutory injunction was argued on 24th February, 1997 and the main prayer was granted in a ruling delivered on 14th April, 1997 by Narebor, J. The Defendant/Appellant was dissatisfied with this ruling consequent upon which it filed a notice of appeal dated 29th April, 1997. This appeal was duly entered as Appeal No. CA/B/9/2004 with a distinct record of appeal.

By a motion on notice dated and filed on 28th April, 1997, the Defendant/Appellant sought for an order to strike out the action before the lower Court for lack of jurisdiction and mis-joinder of parties and causes of action. This motion was brought pursuant to Sections 20 and 47 of the Trades Dispute Act CAP 432 LFN 1990, Section 1A of decree 47 of 1992, and Order 8 of the High Court (Civil Procedure) Rules 1988 of Bendel State, applicable to Delta State High Court etc. Arguments on this motion began before Hon. Justice Akpomudjere on 14th July, 1999, more than one year since it was filed. Through various adjournments, arguments on the motion were concluded on 3rd April, 2000.

In a ruling dated 27th October, 2000, the learned trial Judge refused to grant the main prayer in the motion and proceeded to dismiss same. The Defendant/ Appellant were dissatisfied with the dismissal of the motion. It filed an appeal against that decision in a notice of appeal dated 9th November, 2000 containing a single ground of appeal. That appeal is Appeal No. CA/B/9A/2004. By a motion on notice dated 17th January, 2005, the Appellant/ Applicant sought for an order of this Court to consolidate these 2 pending appeals and also to file one brief of argument for both appeals. In the same application, the appellant also sought for leave of this court to file and argue 2 additional grounds of appeal and a deeming order that the filed and served 2 additional grounds of appeal were properly filed and served. These reliefs were granted as prayed on 7th June, 2005.

After all these preliminary issues were settled parties filed and exchanged briefs of argument. The Appellant’s brief is dated 2/3/06, but having been filed out of time, it was deemed as properly filed and served on 29th March, 2006. The Respondent’s brief was also filed out of time.

It was deemed as properly filed and served on 18th April, 2007.

In its brief of argument, the Appellant formulated 3 issues for the determination of this appeal while the respondent also formulated 3 issues for determination in its own brief.

The issues formulated by the appellant are: –

1. Was the learned trial Judge right in granting an injunction in this case founded on alleged contract of employment? (Grounds 1 & 2 of the Notice of Appeal dated 29/4/97).
2. Was the learned trial Judge right in holding that the State High Court has jurisdiction to entertain this case? (Ground 1 of the notice of appeal dated 9/11/2000 and Ground 2 of the Additional Grounds of Appeal dated 17/1/2005).
3. Was the learned trial Judge right in holding that the application to strike out the suit for mis-joinder of parties and causes of action ought to fail when:

a) The alleged contract of employment (the existence of which is denied) is personal to each of the 66 Plaintiffs?

b) The Plaintiffs do not have joint interest?

(Ground 3 of the Additional Grounds of Appeal dated 17/1/2005).

The Respondent formulated these issues; – VIZ:

1) Whether the learned trial judge was not right in granting an interlocutory injunction in this matter having regard to the affidavit evidence before him? (Grounds 1 and 2 of the Appeal dated 29/4/97).

2) Was the lower court not right in holding that the Delta State High court had jurisdiction to entertain this matter. (Ground 1 of the Notice of Appeal dated 9/11/2000 and Ground 2 of the Additional Grounds of Appeal dated 17/1/05).

3) Whether the learned trial Judge was not right in holding that the motion to strike out the Suit for alleged misjoinder of parties and causes of action fails having regard to the statement of claim before the Court? (Ground 3 of Additional Grounds of Appeal dated 17/1/05.

At the hearing of the appeal respective learned Counsel adopted and relied on their respective briefs of argument without making any oral submissions in elaboration of the briefs. The Appellant’s brief was settled by learned Counsel Mr. C.O. Ugwor. Having regards to the original and additional grounds of appeal, learned Counsel formulated 3 issues for the determination of this appeal. They are as follows: –

1. Was the learned trial Judge right in granting an injunction in this case founded on alleged contract of employment?
2. Was the learned trial Judge right in holding that the State High Court has jurisdiction to entertain this case? and
3. Was the learned trial Judge right in holding that the application to strike out the suit for misjoinder of parties and causes of action ought to fail when: –

a) the alleged contract of employment (the existence of which is denied) is personal to each of the 66 plaintiffs; and

b) the plaintiffs do not have joint interest.

The Respondents’ brief of argument was settled by learned Counsel Mr. G. J. Odjesa and it equally identified 3 issues for determination. They are: –

1) Whether the learned trial Judge was not right in granting an interlocutory injunction in this matter having regards to the affidavit evidence before him?

2) Was the lower Court not right in holding that the Delta State High Court had jurisdiction to entertain the matter; and

3) Whether the learned trial Judge was not right in holding that the motion to strike out the suit for alleged mis-joinder of parties and causes of action fails having regard to the statement of claim before the Court.

A careful consideration of the briefs and the issues for determination identified by respective learned Counsel shows that the jurisdiction and competence of the lower Court to entertain and decide the suit of the 66 Plaintiffs/Respondents is common therein. It is trite that the issue of jurisdiction is a threshold issue and is paramount and of great importance in the adjudication of any matter. It is equally trite that once the issue of jurisdiction is properly raised in the adjudication of any matter, it has to be promptly considered and decided upon one way or another. This is because the existence or otherwise of jurisdiction goes to the very root of the matter as to sustain or nullify the Court’s decision or order in respect of the relevant subject matter. It is against the background of this famous and well known principle in the adjudication of matters before our Courts that I now wish to decide the issue of the jurisdiction of the lower Court to entertain the suit of the plaintiffs/Respondents as identified and raised as well as argued in the various briefs of learned Counsel in this appeal. I wish to give the issue of jurisdiction a priority attention. After a decision on it, I may then proceed to consider the remaining issues for determination if circumstances permit.

In arguing against the jurisdiction of the lower Court in this appeal, learned Counsel to the appellant began by referring to the old and famous case of NKEMDILIM V. MADUKOLU & ORS (1961) 1 ALL NLR 581 and explained that a Court is competent when: –

1) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and

2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and

3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Against this explanation, learned Counsel submitted that the High Court of Delta State was not competent to entertain the suit of the plaintiffs/respondents because the subject matter of the case was not within its jurisdiction and it was not initiated by due process. He added further that the jurisdiction of a Court is determined by the claim before it. To underscore the claim of the plaintiffs learned Counsel went on to set out paragraphs 7 to 16 of the Statement of Claim before the lower Court. In due course, I shall return to these paragraphs of the Statement of Claim.

According to learned Counsel, the key averments in the Statement of Claim show clearly that the Respondents’ Claim is for a determination of their entitlements to the monthly allowances, salaries, overtime, bonuses, housing, transport, lunch, utilities allowances etc under the yearly collective agreement entered between Respondents’ Trade Union (NUPENG) and the appellant, which Respondents alleged was their employer. He then went on to refer to S. 47(1) of the Trade Disputes Act CAP 432 LFN 1990 wherein the terms “trade dispute” and “collective agreement” were defined.

Upon these definitions, learned Counsel Mr. Ugwor submitted that the cause of action of the respondents is founded on their alleged financial entitlements under the collective agreement between NUPENG and the appellant. Learned Counsel maintained that by the nature of this Claim it is predicated on a trade dispute within the meaning of S.47 (1) (supra), and contended further that by virtue S.20 of CAP 432 (supra) it is the National Industrial Court that is vested with exclusive jurisdiction in matters and causes pertaining to and connected with trade disputes as therein defined. He set out the provisions of S.20 of CAP 432 (supra) and explained that it was considered and applied in the case of TIDEX NIG. LTD. V. MASKEW (1998) 3 NWLR (PT.542) 404. He quoted very extensively from page 423 of the judgment.

By way of additional explanation, learned Counsel pointed out that it is clear from the claim of the Respondents, as set out in the pleadings, the dispute arose over whether the Respondents were entitled to be paid salaries and allowances based on the yearly collective agreement entered between NUPENG and the Appellant. He added that the claim in the action before the lower Court was not between individual workers for damages for wrongful termination of employment or for arrears of wages simpliciter. Learned Counsel submitted that in the instant case, there is a dispute between an employer (appellant) and workers (respondents) involving and connected with the employment or non-employment or the terms of employment based on a yearly collective agreement between NUPENG and the Appellant Company.

In conclusion, learned Counsel submitted that the learned trial Judge misconceived the subject matter of the cause of action. He then maintained that the cause of action must be held to a rise out of a trade dispute and added that the resolution of the dispute must involve the interpretation and application of the relevant collective agreement. He urged the Court to answer the questions in this issue in the affirmative and to hold that the jurisdiction of the lower Court is ousted by S.1A of CAP 432 (supra)

In his reply to this issue of jurisdiction in the 2nd issue he formulated, learned Counsel, Mr. Odjesa for the respondents began by expressing the view that the lower Court was right in holding as it did that it had jurisdiction to entertain the suit of the plaintiffs/respondents. He maintained that the suit before the lower Court was founded on a claim involving the relationship of master and servant. He also explained that the appellant contradicted itself by maintaining that the suit of the Respondents arose out of a trade dispute connected with or pursuant to a collective agreement.

While continuing with his argument, Mr. Odjesa of Counsel referred to the latter part of paragraph 16 of the Statement of Claim and pointed out that it should be remembered that the Respondents did not sue as representatives of some un-named plaintiffs or a Trade Union. Further to this, learned Counsel explained that the fact that a collective agreement was to be relied upon in a suit does not distract from its nature as an individual claim between a master and a servant. Learned Counsel suggested that generally in master servant cases, conditions of service affecting a particular employee can be gathered from several documents including letters of employment and contents of collective agreements and these may be transmitted into the individual contract of service between the individual and the master.

In concluding his arguments, learned Counsel referred to the book “Nigerian Labour Law” by Professor A. Emiola at page 32 and submitted that the lower Court had jurisdiction in master servant matters and urged this Court to so hold.

It must be re-stated here, at the risk of being repetitive, that the issue of jurisdiction is fundamental and a Court without jurisdiction over a subject matter makes any decision or order affecting it in vain. By virtue of S.236 of the 1979 Constitution of the Federal Republic of Nigeria, as amended by decree 107 of 1993, a State High Court has unlimited jurisdiction i.e. jurisdiction in respect of all matters except those specifically excluded from its jurisdiction. It is the claim before the Court which is the determining factor for consideration as to the ouster of jurisdiction of the Court. Ouster of jurisdiction is a condition which exists when a Court which once had jurisdiction over a matter ceases to retain its jurisdiction. See MUSTAPHA V. GOV. OF LAGOS STATE (1987) 2 NWLR (PT.58) 539.

It is a cardinal principle of adjudication in our adversary system of administration of justice in civil matters that parties are bound by their pleadings and no litigant would be allowed to make a case different from his pleadings. A party cannot also give evidence of a fact that was not duly pleaded. See MANDILAS and KARABERIS LTD V. OTOIKITI (1963) 1 SCNLR 69.

It has equally been decided that it is not only the parties to a case that are bound by the pleadings, the Court is equally bound and a judge is not allowed to go outside the pleadings. See OCHONMA V. UNOSI (1965) NMLR 321 AT 323; ONUORAH V. KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) ALL FWLR (PT.256) 1356.

In determining whether or not it had jurisdiction, the Court must consider the claim of the plaintiff. This is because it is only the statement of claim and the reliefs therein that donate jurisdiction to the Court. The claim before the lower Court is circumscribed by the averments in paragraphs 7-16 of the Statement of Claim. These averments are hereby reproduced thus: –

7. Plaintiffs aver that as staffs of the Defendant they were also members of the NUPENG (National Union of Petroleum and Natural Gas Workers). The Plaintiffs shall rely on letter dated 22/12/95 from NUPENG to Mr. H. Fadel in proof of this fact.
8. The Plaintiffs also aver that apart from themselves (the Security staffs of the Defendant) other junior staffs of the Defendant are members of NUPENG. The Plaintiffs shall lead evidence to establish this fact at the trial of this suit.

9, The Plaintiffs aver the National Union of Petroleum and Natural Gas Workers (NUPENG) enters into a yearly agreement with the Defendant stipulating and fixing the salaries and allowances of its members who are staff of the Defendant for the year in force of the said agreement which said agreement is referred to as collective agreement.

10. The Plaintiffs also aver that the Defendant pays all her staffs who are members of NUPENG WITH THE EXCEPTION OF THE Plaintiffs salaries and allowances based on the said collective agreement. The Plaintiffs shall lead evidence to establish this fact at the trial of this suit.
11. The Plaintiffs aver that the fact that they are members of NUPENG is within the knowledge of the Defendant as both Plaintiffs and NUPENG have formally informed the defendant of this fact. The Plaintiffs shall lead evidence and rely on the following documents in proof of this fact:

a) Letter dated the 13th day of November, 1995 written by the Plaintiffs to the Service Manager of the Defendant.

b) Letter dated the 15th day of January, 1995 with Ref. No. WZC/FML/02/96 written by NUPENG to the Assistant Chief Labour Officer, Federal Ministry of Labour and Productivity and copied the Plaintiffs and Defendant.

c) Letter dated the 18th day of October, 1995 with Ref. No. WZC/GCE/04/95 addressed to the Managing Director of the Defendant. Notice is hereby given to the Defendant to produce the original of these documents at the trial of this suit.

12. The Plaintiffs aver that based on the yearly collective agreement entered into between NUPENG and the Defendant which said agreement binds the relationship between the Plaintiffs and the defendant, the Plaintiffs are entitled to the following allowances to wit: Housing, Transport, Lunch, Utilities, Education and Facilities Allowance monthly. The Plaintiffs shall rely on the said collective agreements for 1992, 1993, 1994, 1995 and 1996 in support of this fact. The Defendant is hereby given notice to produce the original of these documents.
13. The Plaintiffs also aver that based on the Collective Agreement pleaded in paragraph 12 of the Statement of Claim above, they are also entitled to overtime bonuses.
14. The Plaintiffs shall lead evidence to establish their entitlements under the various allowances and overtime bonus contained in the collective agreement.
15. The Plaintiffs aver that based on the’ collective agreement they are entitled to basic monthly salary calculated or based on the sum of N153.00 (One Hundred and Fifty Three Naira) per 8 hours working day.
16. The Plaintiffs aver that the total sum due to them as salaries and benefits as bona fide employees of the Defendant as at the 15th day of March, 1996 amounts to N50, 372,894.00 (Fifty Million, Three Hundred and Seventy Two Thousand, Eight Hundred and Ninety Four Naira). The Plaintiffs shall lead evidence and rely on documentary evidence in proof of this fact and also reflecting how this sum was computed at the trial of this suit.”

S.47 (1) (b), (c) and (d) of the Trade Dispute Act CAP 432 LFN 1990 provides inter alia: –

S.47 (1)

a) …

b) In this Act, unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say:

“Collective Agreement” means any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between-

an employer, a group of employers or

c) organizations representing workers, or the duly appointed representative of anybody of workers, on the one hand; and

d) One or more trade unions or organizations representing workers, or the duly appointed representative of anybody of workers on the other hand;

“trade dispute” means any dispute between employers 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.”

The case of the Respondents, as plaintiffs before the lower Court, against the Appellant Company, as the defendant at the lower court, was that they, along with other staff of the Appellant, were members of a trade union (NUPENG). That for the years 1992 – 1996, NUPENG entered into a collective agreement with the appellant for the payment of certain financial emoluments. At a point, the appellant denied the respondents some of these monetary payments. The appellant claim that the respondents were not its staff and those they were contract staff of security companies engaged on ad-hoc basis. The respondents claim to be bona fide staff of the appellant with attendant rights and duties and that they were not casual staff. The respondents now claim arrears of salaries and allowances totaling over N50 Million (Fifty Million Naira). The appellant claims that it does not owe this amount or any amount at all as it has refused to oblige the respondents on their several and repeated demands for arrears. This, in a nutshell, is what I have been able to gather from the statement of claim as being the basis for the claim of the respondents.

There does not appear to be any doubt that the claim of the respondents can only succeed or fail by having recourse to the 1996 collective agreement between NUPENG and the appellant, or possibly the earlier agreements of the years 1992 to 1995.

The bindingness of these collective agreements and its affect on the relationship of the appellant and the respondents appears to also be in dispute.

For a dispute to be declared a trade dispute within the meaning of S. 47 of the Trade Disputes Act (supra) all the ingredients in the section need not be present. This is because a trade dispute between employees and workers may not necessarily be one between emlployers and workers. In such a situation, it is difficult to apply the test that all the requirements must be present before a dispute can be termed a trade dispute. See A.G. OYO STATE V. NLC (2003) 8 NWLR (PT.821) 16, N.U.R.T.W V. OGBODO (1998) 2 NWLR (PT.537) 189. To the extent that there was a dispute between the appellant and the respondents in the instant case arising out of and connected with the bindingness of a collective agreement or its contents as it affect the rights of the respondents to be paid some emoluments, I am of the view that the claim of the Plaintiffs/Respondents herein pertain to and is connected with a trade dispute as envisaged by S.47 (1) of CAP 432 (supra).

A dispute as to the interpretation of a collective agreement between employer and workers is a cause of action, which can properly be entertained by the National Industrial Court. Once workers and their employer are not in accord with respect to a collective agreement there is a valid trade dispute, which can be the subject of an action before the Industrial Arbitration Panel and the National Industrial Court.

S.15 of CAP 432 (supra) provides as follows: –

S.15:

1) Notwithstanding anything in the foregoing provisions of this Act, the Minister or any party to a collective agreement may make an application to the National Industrial Court for a decision of that Court as to the interpretation of any term or provision of the collective agreement.

2) On an application under this section the Court shall decide the matter after hearing the Minister or, as the case may be, the parties to the collective agreement, or with the consent of the Minister or the parties, without hearing them; and the decision of the Court shall be final and conclusive with respect to the interpretation of the term or provision of the collective agreement concerned”

I have carefully looked at this provision and I am fully satisfied that it confers exclusive jurisdiction on the National Industrial Court as to the interpretation of any collective agreement.

It is also very germane to consider the provisions of S.20 of CAP 432 (supra). It provides: –

S.20(1)

“The Court shall to the exclusion of any Court have jurisdiction –

a) to make award for the purpose of setting trade dispute and:

b) to determine questions as to the interpretation of:

i. any collective agreement.

ii. any award made by an arbitration tribunal or by the Court.

iii. …

“COURT” as used under this Law is defined in S.20 as the National Industrial Court. Added to this, S .1 (A) of CAP 432 (supra) provides that: –

“Subject to the provisions of subsection (2) of S.20 of this Act, no person shall commence an action the subject 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.”

This is an ouster of jurisdiction provision that must be upheld by this Court with regards to the facts and circumstances of the instant appeal. The jurisdiction of the National Industrial Court to entertain the claim of the respondents herein appears to me to be exclusive to that Court. By virtue of the provisions of S.20 (1) (a) and (b) (i) read together with S.1 (1), I hold that jurisdiction is exclusively vested in the National Industrial Court to entertain the claim of the respondents herein.

In totality, I agree and uphold the arguments and submissions of learned Counsel to the appellant that the questions raised in issue 2 in the appellant’s brief of argument must all be answered in the affirmative, the Delta State High Court, Warri Division, lacked the jurisdiction and competence to entertain the claim in Suit No. W/91/96. Having held that the lower Court lacked jurisdiction and competence to entertain Suit NO. W/91/96, I do not see any need to go into the arguments and submissions of respective learned Counsel on issues 1 and 2 as contained in their respective briefs.

This appeal succeeds and it is allowed. Suit No. W/91/96 is struck out. I order for N30, 000.00 (Thirty Thousand Naira) costs against the respondents.

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Other Citations: (2008)LCN/2675(CA)