Independent National Electoralcommission (INEC) V. Association of Senior Civil Servants of Nigeria & Anor (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

This is an appeal against the Ruling of the National Industrial Court dated 24/02/05 in Suit No: NIC/10M/2003 delivered by Hon. Justice B.A. Adejumo (President) Prof. B. B. Kanyip and V. N. Okobi (Mrs) members, on the Appellant’s Preliminary Objection challenging the competence of the Applicant’s now 1st Respondent motion on Notice for an order seeking leave to enforce the judgment of the lower court (National Industrial Court) delivered on 27th June, 1995 in suit No: NIC/5/93 against the Appellant.

FACTS

The 1st Respondent filed a Motion on Notice dated 14th March 2003 in suit No: NIC/10M/03 for an order seeking leave to enforce against the Appellant the judgment of the lower court (National Industrial Court) delivered on 27th June, 1995 in suit No: NIC/5/93 and an order enforcing the said judgment by directing the Respondents to give effect to the said judgment by paying forthwith to the Applicant (now 1st Respondent) dues deducted from all eligible members of the Agency on grade levels 07 and above in accordance with the said judgment (pages 21 – 48 of the record).

In the Preliminary Objection dated 5th February 2004 the Appellant prayed the Hon. Court to strike out the names of the 1st and 2nd Respondents from the suit and that the entire action be struck out for incompetence.

Written addresses were filed by order of court dated 29th January 2004. The 2nd Respondent orally associated itself with the submission of counsel to the Appellant and urged the Hon. Court to dismiss the 1st Respondent’s motion and uphold the objection.

The Hon. Court in a well considered ruling on 24th February 2005 struck out the name of the 1st Respondent (Dr. Abel Guobadia) from the suit for not being a necessary party but on the whole dismissed the Preliminary Objection holding that the Hon. Court had jurisdiction to entertain the matter. Leave was then granted to the Applicant to make out his case for the enforcement of the judgment in suit No. NIC/5/93 against the Appellant and the 2nd Respondent in this Appeal.

Aggrieved by the ruling of the lower court dated 24th February 2005, the Appellant filed a Notice of Appeal dated 3rd March 2005 challenging the said ruling.

The Appellant’s Brief was filed on 29/6/06 and deemed filed on 19/906. The 1st Respondent filed their Brief with an accompanying preliminary objection on the 5/12/06. The Appellant filed a Reply Brief on 13/2/07 and deemed filed on 22/5/07.

The 1st Respondent in a document titled:

“1st Respondent’s Brief of Argument Notice of Preliminary Objection under Order 3 Rule 15” in which is stated:

“Take Notice that at the hearing of appeal the 1st Respondent will pray the court to strike out brief and dismiss the Appeal, on the ground that the same is incompetent and the court lacks jurisdiction to entertain it”.

In arguing the preliminary objection learned counsel for the 1st Respondent/Applicant stated that following the ruling of the National Industrial Court dated 24th February 2005, in the matter of an application for enforcement of the court’s judgment in Suit No. NIC/10m/2003, the Appellant filed a Notice of Appeal dated 3rd March 2005. That the Notice with the grounds of appeal is supposed to arise out of a ruling in a preliminary objection to the jurisdiction of the lower court to entertain the 1st Respondent’s process. That upon the Notice of Appeal, the records were duly compiled and transmitted to this court on 24th July 2005 which said record was served on the Appellant on 26th July 2006 whereupon the Appellant’s 60 days period within which to file its brief of argument started to run.

The 1st Respondent further contended that the Appellant having defaulted in filing its brief of argument for almost a year the Respondent on 4th May 2006 filed a motion dated 24th April 2006 pursuant to Order 6 Rule 10 of Rules of court for the appeal to be dismissed for want of diligent prosecution.

That by a motion dated 12th April 2005 but filed a year later on 13th April 2006, the Appellant applied for stay of proceedings of the court below in the substantive application. That on being served the Respondent’s motion aforementioned, the appellant by motion dated 29th June 2006 applied for extension of time to file appellant’s brief of argument. Thus there were various issues before the court arising from the three motions, which the court was to look into by the 3rd July 2006 when the matter was to have been first called but the matter was adjourned by the court registrar to 12th October 2006 on the directive of the court that contentious motions could not be attended to on that day.

Learned counsel for the 1st Respondent/Applicant further said that on the 12th October 2006, the 1st Respondent’s counsel from Lagos was to be told that due to a re-organisation, the matter was brought forward to 19th September 2006. That without notice to the 1st Respondent, and with one Chabki Benny who had no instructions purportedly appearing for 1st Respondent, the court heard the appellant’s motion and granted the same without regard to the other pending motions. He stated that the court also ordered the 1st Respondent to file its Respondent’s brief and adjourned the appeal to the 17th October 2006. He said the 1st Respondent who felt aggrieved Filed a motion dated 16th October 2006 for an order to set aside the order of court pf 19th September 2006 granting extension of time to file appellant’s brief as well as ordering the 1st Respondent to file its Respondent’s brief.

He stated on that on the 17th October 2006, the court advised counsel to withdraw the motion of 4th May 2006 brought pursuant to Order 6 rule 10 in view of the proceedings of 19th September 2006. The court refused to hear the 1st Respondent’s motion of 16th October 2006 to set aside the proceedings of 19/9/06 but reiterated the order to file respondent’s brief.

In reply learned counsel for the Appellant/Respondent stated that the Respondent in raising the Preliminary Objection in his brief failed to comply with Order 3 Rule 15 of the Court of Appeal Rules. That the format set out in civil form 13 at page 365 of the Rules was also not used.

Learned counsel said assuming without conceding that the Preliminary Objection was properly raised by the Respondent, that where there are two pending applications before the court, one to snuff life out of a case while the order is to restore life that which is to restore life is to be taken first. She cited: Urhobo v. Oteri (1999) 2 NWLR (pt. 589) 147 at 158 – 159 F- C Ani v. Nna (1996) 4 NWLR (pt. 440) 101 at 120 G-H.

Attorney-General Federation v. A.I.C. Ltd. (1999) 2 NWLR (pt. 378) 388 at 397 E-F.

Long – John v. Blakk (1998) 6 NWLR (pt. 555) 524 at 550 Mobil Producing (Nig.) Ltd. v. Monokpo (2003) 18 NWLR (pt. 852) 346 at 414 – 415; 432 – 433.

Learned counsel for the Appellant/Respondent contended that in affidavit in support of Appellant’s application for enlargement of time to file the Appellant’s Brief it was stated that the fault which caused the delay in filing was not that of the Appellant but of counsel and so the court is urged not to visit the mistake of counsel on the litigant.

Learned counsel stated further that the Respondent/Applicant has not shown what miscarriage of justice would be suffered by him in the grant of extension of time to file the Appellants Brief since the Respondent would be entitled to costs. She referred to Matinja v. Military Administrator Plateau State (1998) 9 NWLR (pt. 567) 694 at 702 paras B – D.

She contended that the Preliminary Objection should be dismissed as lacking in merit. That the cases relied upon for the objection viz Banana v. Telepower (Nig.) Ltd. (2006) 15 NWLR (pt. 1001) 198 Saleh v. Monguno (2206) 15 NWLR (pt. 1001) 26 do not assist in the objection.

The main grouse of the 1st Respondent in this preliminary objection is that the trial court should not have entertained their motion to have the motion for extension of time for the Appellant to file their brief out of time after one year entertained and granted. That court was wrong to have ignored the 1st Respondent’s motion for dismissal of the appeal based on the delay. He cited Enebeli v. CBN (2006) 9 NWLR (pt. 984) 69.

Learned counsel for the 1st Respondent further submitted that the two issues raised in Appellant’s Brief go to the jurisdiction of the court to entertain the appeal since no ground of appeal disclosed a reasonable ground of appeal and so the brief did not contain issues arising from the ground of appeal. He cited order 3 Rule 2(4) of the Rules of Court and also Order 6 Rule 3(1). That a party is not allowed to change his case at will. He referred to Ojoh v. Kamalu (2005) 18 NWLR (pt. 958) 523 at 551; 1 Kweki v. Ebele (2005) 11 NWLR (pt. 936) 397 at 427.

Learned counsel for the 1st Respondent further stated that even though the lower court made the remarks which the appellant had made grounds of appeal, that they were mere side talks and cannot constitute grounds of appeal. He cited Larmie v. D.P.M.S (2005) 18 NWLR (pt. 958) 438 at 461; Steel v. Government of Anambra State (2004) 8 NWLR (pt. 715); Nigeria Custom Service v. Bazuaye (2006) 3 NWLR (pt. 967) 303 at 323.

The courts will not insist on strict compliance with any particular rule of court if such strict application would inflict outright injustice. Thus, in its resolve to construe statutes and rules of court only for the ends of justice, the court will ensure that whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy inspite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. See Saleh v. Monguno (2006) 15 NWLR (pt. 1001) 26 at 59 – 60 per Tabai JSC; Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508; Bello v. Attorney-General Oyo State (1986) 5 NWLR (pt. 45) 828; Stitch v. Attorney-General Federation (198605 NWLR (pt. 42) 1007.

Where there are two motions, one seeking to raise a point of non-compliance with a rule and an order of court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance as in this case, a court of justice and equity ought to take the motion which seeks to regularise the proceedings and preserve them from being struck out or similarly dismissed before considering the application for striking out or dismissal for non-compliance. In other words, where in a case there are two adversely competing motions before a court, one “constructive” and the other potentially “destructive”, the court will normally proceed to take the former first unless it will be inequitable to do so, so that if it succeeds there would be no need for the latter motion which will then be withdrawn and struck out accordingly.Nalsa & Team Ass v. NNPC (1991) 8 NWLR (pt. 212) 652 at 667; Attorney-General Federation v. A.I.C. Ltd. (1995) 2 NWLR (pt. 378) 388 at 397; Urhobo v. Oteri (1999) 2 NWLR (pt. 589) 147; Solanke v. Somefun (1974) All NLR 526 SC.

Rules of court are made to be followed. They regulate matters in court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of court that makes for quicker administration of justice. Some exception for example, amendments of proceedings are provided for, but such exceptions should be resorted to where absolutely necessary. See Malomo v. Olushola 15 WACA 12 Dako II v. District Commissioner, Birin 3 WACA 68; Somade v. Ogunbiyi 3 WACA 48 and England v. Palmer 14 WACA 659.

It is trite law that rules of court must be followed and obeyed by the parties and the courts. See Ezeanah v. Attah (2004) 7 NWLR (pt. 873) 468 at 502 Dr. Aina v. Miss Aina (1986) 2 NWLR (pt. 22) 316; Ibodo v. Enarofia (1980) 5 – 7 SC 42; Olusesi v. Oyelusi (1986) 3 NWLR (pt. 31) 634; Banana v. Telepower (Nig.) Ltd. (2006) 15 NWLR (pt. 1001) 198 at 220 – 221 SC.

A trial Judge can indulge a party in the judicial process for sometime but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party who equally yearns for it in the judicial process. At that stage, the party who is not up and doing, to take advantage of the fair hearing principles, put at his door steps by the trial Judge, cannot complain that he was denied fair hearing. I rely on Newswatch Communications Ltd. v. Attah (2006) 12 NWLR (pt. 993) 144; Banana v. Telepower (Nig.) Ltd. (2006) 15 NWLR (pt. 1001) 198 at 220 – 221.

It is mandatory that a court must make a decision and pronounce on every application which is before it and failure to do so is a breach of the right to fair hearing. See Afro – Continental Ltd. v. Co-op Association of Professional Inc (2003) 5 NWLR (pt. 813) 303.

I would like to retouch the grounds of Appeal which the 1st Respondent/Applicant takes umbrage against.

GROUNDS OF APPEAL without particulars:

“Ground 1

The lower court erred in law when it held that “the learned SAN in this present matter made the same submission in that case which we rejected on the ground that the Labour Minister is only one of the several patties that are statutorily allowed to declare a Trade dispute, the other patties being workers and employers”

Ground 2

The lower court erred in law when it held that “the argument of the Respondents that they were not patties to Suit No: NIC/5/93 and so cannot have the judgment in that suit enforced against them is, therefore erroneous”.

Ground3

The lower court erred in law when it held that “the generallaw as depicted by the respondents is that the judgment in a suit is only enforceable against the parties in this suit. We agree with this proposition. The only caveat is that in Trade dispute matters, the effect of a judgment is often on an employer who may not be a party to the suit in questions of jurisdictional scope between unions and recognition disputes an employer is often a passive party. His presence in the suit is often immaterial given that his right(s), one way or the other, is not an issue in dispute. When the court rules that one union over another has the jurisdictional scope to unionize certain members, or that some employees should be given recognition by an employer, the determination of any of these issues often does not involve questions of rights of the employer as to warrant giving the employer audience or right to be heard. Whatever is the decision of the court, the employer is expected to abide by the decision given that statutory recognition and deduction of check-off dues are automatic and obligatory (hence compulsory) and jurisdictional scope compartmentalized and well defined…. The argument of the respondents that they were not parties to Suit NO/NIC/5/93 and so cannot have the judgment in that suit enforced against them is, therefore, erroneous” and thereby came to a wrong decision.

The practice has always been to give priority to hearing such motion seeking to regularise a process. That is the hallmark of a proper exercise of discretion. If the motion to regularise succeeds, the other motions or motion seeking to terminate the proceedings will be withdrawn, and in appropriate cases there will be compensation by way of costs. See Mobil Producing (Nig.) Unlimited v. Monokpo (2003) 18 NWLR (pt. 852) 346 per Unaifo JSC; Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (pt. 212) 652 at 667; Long John v. Blakk (1998) 6 NWLR (pt. 555). 524 at 550, 551-552.

Indeed this preliminary objection and its manner of presentation are inelegant with capacity to confuse issues and what we are here for. However a court as a legal institution established for the adjudication of two or more competing interests has a legal duty to hear applications before it. The applications may not have any merits. They could be bogusly and inelegantly framed but once there is some legal basis for the applications, a court of law is bound to entertain them. See Kotoye v. Saraki (1991) 8 NWLR (pt. 211) 638; Enebeli v. CBN (2006) 9 NWLR (pt. 984) 69 at 78 – 79.

From all I stated above it is clear that tackling this preliminary objection was to fulfill all righteousness in line with the relevant statutes and Rules of court. It has been a time wasting exercise, a luxury no doubt, a journey without destination and so I find it easy to discountenance it as lacking in merit and I dismiss it. I would proceed too consider the Appeal and the arguments thereof.

The Appellant raised two issues for determination which are:

1. Whether it could be said that a trade dispute was declared by the Hon. Minister to enable the Hon. Court exercise jurisdiction.
2. Whether a judgment of a Court in trade dispute cases or otherwise could be enforced against a person who was not a party in the proceedings.

The 1st Respondent formulated four issues for determination which included issues that had to do with the preliminary objection and they are:-

1. Whether the court ought not to hear the 1st Respondent’s motions respectively of 26th April 2006 and 16th October 2006 first before going into the Appeal
2. Whether the Notice of Appeal before the court on which the court has ordered filing of briefs of argument disclosed any reasonable ground of appeal or is not otherwise incompetent.
3. Whether if the answer to NO.2 above is in the negative that the Notice of Appeal is incompetent the court has jurisdiction to entertain the appeal.
4. Whether the issues formulated by the Appellant arise from the grounds of appeal, and if not whether the appeal is not an abuse of the process of court.

I would prefer to use the issues as couched by the Appellant for ease of reference

ISSUES 1 AND 2

Learned counsel for the Appellant said the Minister of Labour and Productivity is the sole authority charged with the responsibilities of declaring a trade dispute pursuant to Sections 4, 5 and 8 of the Trade Disputes Act as amended the Trade Disputes (Amendment) Decree NO.47 of 1992. He referred to Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (pt. 49) 284; NNB PLC v. Osoh (2001) 12 NWLR (pt, 729) 232 at 260, 261; NURTW v. Ogbodo (1998) 2 NWLR (pt. 537) 169 at 197.

Learned counsel for the Appellant submitted that the matter on ground does not relate to employment or non-employment or terms of employment or conditions of work of any person or persons to come within the purview of Section 47 (1) of the Act. He cited Apena v. N.U.P.P.P.P (2003) 8 NWLR (pt. 822) 426 at 445. That the Minister of Employment, Labour and Productivity no where declared any dispute between the present parties in line with the provision of Sections 4 and 8 of the Trade Disputes Act to warrant enforcement of any judgment against the Appellant. Also that there was no reference by the Minister to any Industrial Arbitration Panel findings in respect of any issue. That the issue before the lower court related to the enforcement of a judgment obtained by the 1st Respondent in a previous suit against other parties unlike the Appellant who was not a party in the action.

Learned counsel for the Appellant further stated that the Appellant was not party to the Suit NO. NIC/5/93 before the lower court. That there is no evidence to show that the Appellant participated at the trial before judgment was entered by the lower court and no evidence to show that the processes in the case as well as the judgment sought to be enforced was ever served on the Appellant Afro-Continental (Nig.) Ltd. v. Co-op Association of Professionals INC. (2003) 5 NWLR (pt. 813) 303 at 321; Babalola v. Aladejana (2001) 12 NWLR (pt. 728) 597 at 615.

Learned counsel for the Appellant went on to say that since the judgment of the court in suit NO. NIC/5/93 which is to be enforced by the Respondent in Suit NO. NIC/10M/03 against the Appellant cannot be said to be fair or accord with rules of natural justice having regard to the fact that the Appellant was never heard on any of the issues canvassed at the lower court in suit NO: NIC/5/93 the subject of enforcement in suit NO: NIC/10M/2003 and this amounts to denial of being heard. He cited Ojukwu v. Obasanjo (2004) 12 NWLR (pt.886) 169 at 209; Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 420; Lebile v. Registered Trustees of C &. S (2003) 2 NWLR (pt. 804) 399 at 424 0 – H; UBA PLC v. Okonkwo (2004) 5 NWLR (pt. 867) 445 at 463 A – E; Peoples Democratic Party (PDP) v. INEC (1999) 11 NWLR (pt. 626) 200 at 265 C-D.

Learned counsel further contended that the law is trite that a judgment in a case against a non- party is a nullity and may be regarded as given without jurisdiction. He referred to Attorney-General Lagos State v. Attorney-General Federation 2004) 18 NWLR (pt. 904) 1 at 145.

Mrs. Adesina for the Appellant went on to state that the purpose of joinder of parties in an action is to enable the court to effectually and completely adjudicate upon and settle all questions involved in the cause or matter. That it is an elementary and fundamental principle of law that a judgment in personam is only binding on the parties to the lis. Accordingly, all parties who may be affected by the result of or the outcome of the litigation ought to be joined either as plaintiff or Defendant, she referred to Oladeinde v. Oduwole (1962) WNLR 41; Garba v. University of Maiduguri (1986) 1 NWLR (pt. 98) 551; Awoniyi v. Registered Trustees of AMORC Nigeria (2000) 10 NWLR (pt. 678) 522 at 540 D – E.

Learned counsel concluded by saying that Appellant was never made a party to the suit at the lower court, the matter having been fought between Nigeria Civil Service Union v. Association of Service Civil Servants of Nigeria and the judgment obtained therein ought ordinarily to bind both parties. That judgment cannot be enforced against the Independent National Electoral Commission, who was never a party at the lower court.

In response learned counsel for the 1st Respondent stated that the two issues formulated by the Appellant were not related to the grounds of appeal. He referred to order 6 rules 3(1) of the Court of Appeal Rules. That issue one has no bearing with ground one which complains about the conclusion of the lower court on the submission by the learned counsel for Appellant or ground two which complains about error of the argument of the Respondent. Also that the issue does not relate to ground three of the grounds of appeal. That issue two of the appellant does not relate to any of the three grounds of appeal rather the issue relates to issue of enforcement of a judgment of the lower court arising out of a trade dispute against a person who was not a party in the proceedings. That since the issue formulated in an appeal do not relate to the grounds of appeal, then there is no proper brief in support of the appeal and so the appeal being incompetent must be struck out.

Mr. Akwash for the 2nd Respondent did not file a Brief for the 2nd Respondent. He stated that 2nd Respondent was aligning with Appellant’s Brief and all processes filed by the Appellant. He urged that the appeal should be allowed.

In reply on points of law from the Reply Brief learned counsel for the Appellant said that what is expected of the 1st Respondent is a reaction to the issues as formulated by the Appellant in the Brief as the issues for determination. That 1st Respondent is not allowed to canvass argument on the grounds of appeal in his Brief which is matters that should come by way of Preliminary Objection under Order 3 Rule 15.

That Order 6 Rule 4(1) and (2) of the Rules of this Court expect a Respondent’s Brief to:

(a) Answer all material points of substance contained in the Appellant’s Brief.

(b) Contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed.

He cited Nwaosu v. Nwaosu (2000) 4 NWLR (pt. 653) 351; Kuusu v. Udom (1990) 1 NWLR (pt. 127) 421 at 431 D – E; Moses Ola & Sons Ltd. v. Bank of the North Ltd. (1992) 3 NWLR (pt. 229) 377 at 388 D – E; NEPA v. Olagunju (2005) 3 NWLR (pt.913) 602 at 620 – 621; Atanda & ors v. Ajam & ors (1989) 3 NWLR (pt. 111) 511 at 534 – 544 F- A.

On the need to comply with the Rules, learned counsel cited Oforkire v. Maduike (2003) 5 NWLR (pt. 812) 166 at 181 C – F. Ezeanah v. Attah (2004) 7 NWLR (PT. 873) 468 AT 502 D – F 7up Bottling Co. Ltd. v. Abiola & Sons Ltd. (1995) 3 NWLR (pt. 383) p. 257 at 284; Dike v. Okorie (1990) 5 NWLR (pt. 151) 418 at 428 – 429; Okolo v. UBN Ltd. (1998) 2 NWLR (pt. 539) 618 at 639.

Learned counsel for the Appellant said the non payment of fees for the Notice of Preliminary Objection which 1st Respondent ought to have filed is a condition precedent upon which the competence of any process depends. She referred to Emeka v. Emochi (2004) 16 NWLR (pt. 900) 433 at 450; Okolo v. UBN Ltd. (2004) 3 NWLR (pt. 859) 87 at 108 – 109.

This appeal is on the Notice of Preliminary Objection which prayed as follows:-

1. An Order striking out this suit for incompetence.
2. An Order striking out the names of the 1st and 2nd Respondent from this suit”.

After a well contested process the Industrial Court held among others:-

“The question, however remains whether an employer who was not a party to a suit between two unions can have the judgment in suit enforced against him. The answer to this question would depend on the subject matter of the suit in dispute. The general law as depicted by the respondents is that the judgment in a suit is only enforceable against the parties in this suit. We agree with this proposition. The only caveat is that in trade dispute matters, the effect of a judgment is often on an employer who may not be a party to the suit. In questions of jurisdictional scope between unions and recognition disputes, an employer is often a passive party. His presence in the suit is often immaterial given that his right(s), one way or the other, is not an issue in dispute. When the court rules that one union over another has the jurisdictional scope to unionize certain members, or that some employees should be given recognition by an employer, the determination of any of these issues often does not involve questions of rights of the employer as to warrant giving the employer audience or right to be heard. Whatever is the decision of the court the employer is expected to abide by the decision given that statutory recognition and deduction of check-off dues are automatic and obligatory (hence compulsory), and jurisdictional scope compartmentalised and well defined… The argument of the respondents that they were not parties to Suit NO: NIC/5/93 and so cannot have the judgment in that suit enforced against them is, therefore erroneous… We consequently agree with the applicant’s counsel that the argument is misconceived.

For all these reasons, the preliminary objection of the respondents must fail, we hereby hold that this court has jurisdiction to entertain this matter. Leave is hereby given to the applicant to make out its case for enforcing the judgment in Suit NO: NIC/5/93 against the 1st and 3rd respondents who shall now be 1st and 2nd respondents”.

It is of general application that the court cannot give a judgment against a person who will be affected by its decision if such a person is not made a party nor has no opportunity of defending the suit. This is because, the court has no jurisdiction to decide the fate of a person or matter concerning him when such a person is not made a party to the action. I refer to Babatola v. Aladejana (2001) 12 NWLR (pt. 728) 597.

By virtue of Section 47(1) of the Trade Disputes Act, cap 432, Laws of the Federation 1990, a trade dispute is any dispute between employers and workers, and worker against worker which is concerned with the employment or non-employment, or the terms of employment and physical conditions of work of any person. In essence, before a dispute would qualify as a trade dispute, it must be:

(a) a dispute between a worker and worker; or

(b) a dispute between a worker and his trade union; and

(c) a dispute having some industrial coloration.

Apena v. N.U.P.P.P.P. (2003) 8 NWLR (pt. 822) 42 6 at 447 – 448.

By virtue of the provisions of the Trade Disputes Act, Cap 432, Laws of the Federation 1990, an employee is an individual who works under a contract of employment. See Apena v. N.U.P.P.P.P. (2003) 8 NWLR (pt. 822) 426 at 443.The word “workers” which include the singular encompasses a class of employees who are engaged in a trade dispute or industry. Their contracts of employment would come under the regulation of the Trade Dispute Act where the constitute themselves into a trade union for the purpose of agitating their common cause based on their collective agreements. On the other hand, they do not have any relationship of master and servant with the trade union to be formed. Rather their contracts of employment are with their respective employers. Apena v. N.U.P.P.P.P (2003) 4 NWLR (pt. 822) 426 at 446.

The Trade Disputes (Amendment) Decree NO: 47 of 1992 specifically ousts the jurisdiction of the High Court in all matters of trade disputes and inter and intra union disputes as prescribed by the Trade Dispute Act as amended by the Trade Disputes (Amendment) Decree No.47 of 1992. Apena v. N.U.P.P.P.P. (2003) 8 NWLR (pt. 822) 426 at 444 – 445.

Under the provisions of Section 1 A (1) of the Trade Disputes (Amendment) Decree No. 47 of 1992, it is the National Industrial Court that has exclusive jurisdiction to hear and determine all matters relating to Trade disputes and inter and intra union disputes. See Apena v. N.U.P.P.P.P. (2003) 8 NWLR (pt. 822) 426 at 448 – 449.In order to ascertain whether or not a suit instituted by an employee against his employer is a trade dispute, and thereby regulated by the Trade Disputes Act which ousts the jurisdiction of the High Court over such disputes, a court must first resolve whether or not the employee is a worker in the con of the entire provisions of the Trade Disputes Act. Apena v. National Union of Printing Publishing and Paper Products (2003) 8 NWLR (pt. 822); Rabiu v. State (1932) 1 NCLR 117; Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (pt. 226) 661.

Section 47(1) of the Trade Disputes Act defines a worker as an employee, including a public officer or any individual other than a public officer who has entered into or works under a contract with an employer, whether labour, clerical work or otherwise, express or implied, or oral or in writing, and whether it is a contract of service or of apprenticeship. When read in con of the entire provisions of the Trade Disputes Act, the definition of a worker refers to an employee who is part of a group of employees engaged in a trade or industry and who have formed a trade union to advance their common cause as employees of that Trade or industry. The definition does not include a person who is not employed in that Trade or industry whose employees is represented by a trade union but is employed by the trade union so formed by employees in a trade or industry. See Apena v. N.U.P.P.P.P. (2003) 8 NWLR (pt. 822) 426 at 445 – 446.

In view of the stress over the matter concerning the facts that the Respondents were not parties to the action through which the judgment of 1995 should be enforced or not to, in view of the fair hearing rule, I would like to refer to some judicial authorities.

In Awoniyi v. Registered Trustees of AMORC (2000) 10 NWLR (pt. 676) 522.

1. Persons against whom complaints are made in an action must be made parties to such action. Uzor v. Nigerian stores Workers Union (1973) 9-10 SC 35.
2. In civil actions, all parties necessary for the invocation of the judicial powers of the court must come before it so as to give the court jurisdiction to grant the reliefs sought. Oloriode v. Oyebi (1984) 1 SC NLR 390; Okafor v. Nnaife (1973) 3SC 85.
3. The purpose of joinder of parties in an action is to enable the court to effectually and completely adjudicate upon and settle all questions involved in the cause or matter. Since a judgment in personam is only binding on the parties to the Lis, all parties who may be affected by the result of the litigation may be joined either as plaintiffs or defendants. Oladeinde v. Oduwole (1962) WNLR 41.
4. It amounts to infringement of the fundamental right to fair hearing as provided in section 36 of the 1999 Constitution, for the court to make an order in an action against a person who is not a patty to the action and against whom no claims have been made Eronini v. Iheuko (1989) 2 NWLR (pt. 101) 46; Liman v. Mohammed (1990) 7NWLR (pt. 160) 116: Oluwa Glass Co. Ltd. v. Ehinlanwo (1990) 7NWLR (pt. 160) 14.

Any infringement of the constitutional right to fair hearing renders the act subsequent to such a breach a nullity. This is to underscore the cardinal rule of natural justice that in any judicial decision, both sides to a dispute must be heard as no one should be condemned unheard.

Deduwa v. Okorodudu (1976) 9 – 10 SC 329; Civil Service Commission v. Buzugbe (1984) 7 SC 19; Kotoye v. CBN (1989) 1 NWLR (pt. 98) 419; Emesin v. Nwachukwu (1999) 6 NWLR (pt. 605) 154; UBA PLC v. Okonkwo (2004) 5 NWLR (pt. 867) 447.

It is noted that the rule of fair hearing is not a technical doctrine.

It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of a hearing. Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403; Kotoye v. CRN (1989) 1 NWLR (pt. 98) 419.

Certain propositions are fundamental to our laws and our system of justice. One is that a person whose rights and interests are likely to be affected by a decision must be heard before a decision is taken. Another is that statutes should not be lightly presumed to have taken away a legal right. Peoples Democratic Party (PDP) v. I.N.E.C. (1999) 11 NWLR (pt. 626) 200.

Before the Trade Disputes Act, Cap 432, laws of the Federation of Nigeria, 1990 can be applied to oust the jurisdiction of a High Court, the subject matter of the dispute before the High Court must relate to a trade dispute or an inter or intra union dispute N.N.B. Plc v. Osoh (2001) 13 NWLR (pt. 729) 232.

The aim of the Trade Disputes Act (Amendment) Decree NO.47, 1992 is to prevent the proliferation of trade union cases in several High Courts and to ensure their litigation in the National Industrial Court. See N.N.B. PLC v. Osoh (2001) 13 NWLR (pt. 729) 232.

While a person’s access to the Courts to have his civil rights adjudicated upon may be restricted or ousted by a statute or Act, it must be construed rather strictly Ouster of jurisdiction, it is emphasised needs express words. I refer to Ojukwu v. Obasanjo (2004) 12 NWLR (pt. 886) 169 at 209; Shodehinde v. Registered Trustees, Ahmadiyya Movement -in-Islam (2001) FWLR (pt. 58) 1065.

It is thereafter for clarity that I recant the Trade Disputes (Amendment) Decree 1992 referred to as Decree N0.47.

“The Federal Military Government hereby decrees as follows:-

1. (1) The Trade Disputes Act (in this Decree referred to as “the Principal Act”) is hereby amended as provided in this Decree
2. Immediately after the existing Section 1 of the Principal Act there shall be inserted the following new Section 1A

1A- (1) Subject to the provisions of subsection (3) of section 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.

(2) Notwithstanding the provisions of the Constitution of the Federal Republic of Nigeria 1979, any interim or interlocutory order, judgment or decision made by any court other than the National Industrial Court established under this Act in respect of any trade dispute, inter or intra union dispute prior to the commencement of this Section shall cease to have effect.

Having stated the relevant law which is the Trade Disputes Decree as Amended and the rules of natural justice which had been passionately brought to the fore in this appeal thus activating a mine field since the challenges are such as should arise at an appeal when the matter would have been fully heard at the court below and not as presently, which is an appeal on a preliminary objection. Having cautioned myself as to my limitations in this appeal I have left those judicial authorities stated above as reminders of what the law and practice are while restricting myself to whether or not the trial court should have dismissed the preliminary objection before it. It is trite that a judgment should be confined to the issues as presented to the court by the parties. See A.C.B, Ltd. v. Attorney-General Northern Nigeria (1967) NMLR 231; Vincent Standard Steel (Nig.) Limited v. Government of Anambra State (2001) 8 NWLR (pt. 715) 454.Court as umpires must limit themselves to the consideration of the case made by the parties. The courts have the duty to refrain from making a case for the parties and where of necessity this is done in the interest of the just disposal of the matter in controversy, the parties must be heard on these new issues before decisions are pronounced. On no account should the court make for parties a different case from the one the parties made for themselves and for the resolution of which they approached the court. UBN PLC v. Jeric Nig. Ltd. (1998) 2 NWLR (pt. 536) 63; Jatau v. Mailafiya (1998) 1 NWLR (pt. 535) 682; Ogbu v. Ani (1994) 7 NWLR (pt. 355) 128.

Having stated the Ruling of the Industrial Court, subject of this appeal and seeing nothing upon which I can pick a quarrel with that decision I do not have any difficulty in dismissing this appeal which in the circumstances lack merit. I affirm the ruling and decision of the court below which in this instance is the National Industrial Court.

I dismiss this appeal and I make no order as to costs.

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Other Citations: (2007)LCN/2527(CA)