IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

Transcription

1 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA Suit No: NIC/ABJ/20/2011 Petitioner: And Respondent: THE REGISTERED TRUSTEES OF THE FORUMOF FEDERAL HEALTH INSTITUTIONS, NURSESAND MIDWIVES (FFHINNAM) NATIONAL ASSOCIATION OF NIGERIA NURSES AND MIDWIVES Date Delivered: Judge(s): HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA) Rulings Delivered IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA) DATE: 5TH June, 2012 SUIT NO. NIC/ABJ/20/2011 BETWEEN: THE REGISTERED TRUSTEES OF THE FORUM OF FEDERAL HEALTH INSTITUTIONS, NURSES AND MIDWIVES (FFHINNAM) (Suing for itself and on behalf of its Members Nationwide) CLAIMANT AND NATIONAL ASSOCIATION OF NIGERIA NURSES AND MIDWIVES. DEFENDANT REPRESENTATIONS: Mr. R.A Mom with Mr. Edwin Onoja for the Claimant/Respondent. No representation for the Respondent/Applicant. RULING This action was commenced by a complaint dated the 20th June, 2011 and filed on the 23rd June, It was accompanied with the Statement of Facts, the List of Claimant s Witnesses, the List of Claimant s Documents and the documents mentioned in the List (Exhibits A G). The reliefs claimed by the claimants are as follows: a) A DECLARATION that the claimant and its members are no longer members of the Defendant, having withdrawn their membership and pulled out of the Defendant. b) AN ORDER OF PERPETUAL INJUNCTION stopping the Defendant from collecting check off Dues from members of the Claimant.

2 c) AN ORDER OF PERPETUAL INJUNCTION stopping the Defendant from writing obnoxious, frivolous, vexatious and unfounded letter to any statutory or non-statutory body demanding for the deregistration of the Claimant. d) A DECLARATION that the letter written by the Defendant on the 1st of February, 2011, to all Chief Medical Directors of Teaching/Specialist Hospitals and Federal Medical Centers and All Chief Executives of Parastatals, Agencies and Units, directing that the Check Off Dues of members of the Claimant who have renounced and withdrawn their membership of the Defendant be paid into the account of the Defendant, is unlawful, illegal and unjustifiable. The Defendant on its own filed a Memorandum of Conditional Appearance and a Notice of Preliminary Objection both dated the 20th of July, 2011 and filed the 22nd of July, The Preliminary Objection has 4 grounds, which are listed hereunder thus: 1. The Claimant is not a person known to law. 2. The honourable Court lacks the jurisdiction to hear and determine the subject matter of the suit. 3. The honourable Court lacks the competence to grant the reliefs sought by the Claimant. 4. The manner in which this action is commenced is contrary to law. The Preliminary Objection of the Applicant came up for hearing on the 6th of October, The Applicant s counsel made oral submissions in respect of the Preliminary Objection. He started his submission by urging the Court to correct some errors on the face of the Preliminary Objection by changing section 674 of the Companies and Allied Matters Act, CAP. C20, LFN, 2004 (CAMA) on the process to section 596. The Court granted this prayer as it was not objected to by the Counsel to the Respondent. Thereafter, he proceeded in his submission to say that 4 issues have been distilled from the 4 grounds of objection as listed above. He submitted that the 1st issue was whether in law, the Claimant is a legal entity? He submitted that only a juristic person is cognizable before the Court; and that a party to an action that lacks juristic personality is not cognizable before the Court. He relied on NBA V. GANI FAWEHINMI, 2 NWLR (PT. 224). He submitted further on this issue that the Claimant in this action is the Registered Trustees of the Forum of Health Institutions, Nurses and Midwives (FFHINNAM) and that by virtue of the exhibit attached to the Claim, the respondent is a registered association under Part C of the CAMA. He submitted that by section 591 of CAMA, every association seeking registration under Part C of CAMA must include the words incorporated trustees ; and that by virtue of section 596 of the CAMA, upon the registration of the association, the incorporated trustees shall be known as the Incorporated Trustees of the Association. He argued that the same section 596 of CAMA goes on to state that it is the incorporated trustees of the association that is imbued with the power to sue and be sued in that name. He said there is nowhere in CAMA where the name Registered Trustees exist; and that the term was only used in the Land (Perpetual Succession) Act and that this Act has been repealed by section 611 of CAMA. He argued that where an Act has been repealed, any act done pursuant to it amounts to a nullity; and that therefore, the Claimant having come to Court in a non-existent name is tantamount to no legal Claimant before the Court. He relied on the Court of Appeal s decision in CHURCH OF THE LORD (ALADURA) V. JACOB KONAH SHERFF (2000) 15 NWLR (PT. 689) PG He submitted that this violation of the law amounted to a violation of substantive provision of the law which cannot be waived by the Court; and that therefore, there is no legal Claimant before the Court. He submitted that issue 2 is for the Court to determine whether it has jurisdiction over the subject matter of the suit. In arguing this issue, he submitted that parties do not confer jurisdiction on court and that the jurisdiction of court is conferred by the statute that creates the court. He submitted that in this regard, the jurisdiction of this Court is clearly set out in section 7 of the National Industrial Court Act, 2006 (NICA, 2006). He submitted that other statutes, including the Constitution, might also add to the jurisdiction of a court. He argued that in determining the jurisdiction of a court, the court normally takes into consideration certain factors, chief amongst which is the claim before the court vis-à-vis the jurisdiction conferred on the court by statutes; and on this, he

3 relied on KALANGO V. DOKUBO (2004) NLLR PG. 1 AT 180. He submitted that the claims of the Claimant in this suit are essentially two: that having withdrawn their membership, they are no longer members of the Defendants; and that as such they are no longer under obligation to pay their check off dues to the Defendants. He submitted that in line with DOKUBO S case, the Court should see if it has jurisdiction over the subject matter. He submitted that neither the NICA, 2006 nor the Labour Act defined the term labour and that as such reliance has to be placed on the preamble to the Labour Act for the meaning of the term. He submitted that the issues before the Court do not fall within the ambit of the jurisdiction conferred on the Court by section 7 of the NICA, Having abandoned issue 3, he proceeded to issue 4. He submitted that this case was brought by the Claimant in a representative capacity. He conceded that it is the Claimant s constitutional rights to belong to or withdraw from the Defendant; but that the Claimant has not satisfied the requirements of section 5(3) of the Labour Act which provided the mode of withdrawal. He submitted that this has been settled in the case of CORPORATE AFFAIRS COMMISSION V. ALMAGAMATED UNION OF CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES (2004) 1 LLR (PT. 1) PG. 1 AT 31. He submitted that this action brought in a representative capacity is contrary to the provisions of section 5(3) of the Labour Act as interpreted in the above case. On the same day, the Respondent tried to react to the submissions of the Applicant. In his oral submission, the Counsel to the Respondent argued that the Claimant is a person known to law by virtue of sections 591 and 596 of the CAMA construed together in conjunction with Exhibit A attached to the Claims of the Claimant. He urged the Court to hold that the use of the word incorporated and the word registered mean one and the same thing; and that the more important word required by CAMA is the word Trustees. He submitted that the phrases registered trustees and incorporated trustees are one and the same thing having regard to sections 591 and 596 of the CAMA construed together. He urged the Court to therefore hold that the Claimant is a person known to law and that the use of the phrase registered trustees cannot nullify the action. At this juncture, the Counsel to the Claimant/Respondent asked for adjournment to enable him reply properly in view of the lengthy address and the plethora of authorities cited by the Defendant/Applicant s Counsel. After listening to the opposition of the Counsel at the other side, the Court granted the adjournment in the interest of justice. The case was therefore adjourned to 21st October, 2011 for the Respondent to close his response. Subsequent to this, the Defendant/Applicant filed Additional Grounds of Objection via Motion on Notice dated the 24th day of January, 2012 and filed on the 25th day of January, It is supported with an affidavit and a Written Address. The motion brought pursuant to Order 11, Rule 1 and Order 5, Rule 3 of the NIC Rules, 2007 asked in the main for leave to file and argue additional issue of law as contained in the attached affidavit. The proposed Additional Ground is couched thus: Whether the Claimant, not being a trade union under the law, has the locus to sue on matters of check off dues? When the case came up on the 19th April, 2012, the Applicant Counsel whose application for leave to move the application for Preliminary Objection orally on the 20th December, 2011 was opposed by the respondent s Counsel, however no longer opposed the application for leave. Therefore, the Applicant s Counsel moved his motion for leave and leave was accordingly granted for him to argue the additional ground of objection. The learned Counsel thereafter adopted his Written Address in respect of the additional ground of objection. The Defendant/Applicant s Counsel submitted that the Claimant/Respondent not being a registered trade union lacks the locus to institute action in respect of check off dues which is the exclusive domain of a registered trade union by virtue of section 5(3)(a) & (b) of the Labour Act, LFN, He submitted that this lack of locus in the Claimant rubs the Court of jurisdiction. On this line of reasoning, the Counsel relied on CORP. AFFAIRS COMMISSION V.AUPCTRE (2004) 1 NLLR (PT. 1) AT 29; and LADEJOBI V. OGUNTAYO (2004) 7 SC PART 1 which he cited in his oral adumbration. The Claimant/Respondent through his Counsel adopted his Written Argument in response to the Applicant s Preliminary

4 Objection which is dated 24th February, 2012 and filed the same day. The Counsel started his argument by submitting that on the authority of GENERAL SANNI ABACHA & ORS V. CHIEF GANI FAWEHINMI (2000) 2 SCNQR PT. 1 P. 500 PARA. 19, the Court is only entitled to examine the Claim of the Plaintiff and not the Defence of the Defendant to determine whether the Plaintiff has legal personality. He submitted that there is no scintilla of evidence adduced by the Respondent to debunk the validity of the registration of the Claimant by the Corporate Affairs Commission. He submitted that by the combined effect of sections 590 and 596 of CAMA, the registration of the Claimant which is exhibited as exhibit A is a proof of the fact that the Claimant is a body corporate. He said it is of importance to note that the Respondent/Applicant has not been able to cite any authority to show that the mere fact that the phrase registered trustee which is used in registering the Claimant instead of the phrase incorporated trustee is fatal to the action save for THE CHURCH OF THE LORD (ALADURA) V. SHERIFF (2005) 15 NWLR (PT. 689) P He submitted that however, this case does not support the thesis of the applicant and that the facts of the case are distinguishable from the present case. He said in that case, it was issue of passing off that was before the Court and that the Supreme Court decided that since the two names involved were not registered; they did not have any legal personality before the Court. He submitted further that the Certificate of Incorporation expressly describes the names therein as incorporated and as the duly appointed and registered trustees of the Respondent and that these meet the requirements of the law. He also submitted that the argument of the Applicant with regard to the fact that the phrase registered trustees was a terminology of the Land (Perpetual succession) Act does not hold water as section 612 of the CAMA adopts completely the terminology as if the registration was done under the CAMA. He also submitted that section 596 of the CAMA is a complete adoption of the Land (Perpetual Succession) Act. He affirmed that the phrase adopted did not make any difference as it did not take away the fact of legal entity of the Respondent. In respect of Ground 3, Counsel argued that the submission of the Applicant s counsel that the Respondent does not have the locus to sue for check off dues is misconconceived and that from the Claim before the Court the Respondent is not suing for check off dues. He submitted that the Respondent is only asking that the Applicant be stopped from collecting check off dues from its members having ceased to be members of the Applicant; and that therefore the Court s jurisdiction is not affected. In respect of Ground 4, Counsel submitted that the Applicant s Counsel s argument that the Respondent s members cannot withdraw membership by a representative action is misconceived. He submitted that membership has already been withdrawn and that the Respondent is only in Court to restrain the Applicant from incessant harassments of the Respondent s members. He submitted further on this issue that there is no provision in the Constitution of the Applicant which makes it compulsory that members who have withdrawn their membership should continue to contribute check off dues. Counsel further submitted that the Applicant s Preliminary Objection goes into the substance of the case and that only evidence led can resolve the issues involved. He submitted that courts of law have always frowned on this type of Preliminary Objection. He finally urged the Court to dismiss the Preliminary Objection. I have carefully considered the arguments of Counsel to the two parties alongside the cases and statutes cited. To my mind, the sole issue for determination in this case is whether the Preliminary Objections raised by the Applicant have merits? In answering this question, I will take the issue of whether not using the phrase incorporated trustees of as mandated by section 591(1)(a) of the CAMA is fatal to the action of the Claimant? To resolve this issue, it is necessary to reproduce section 591(1)(a) of CAMA. It provides thus: Application under section 596 of this Act shall be in the form prescribed by the Commission and shall state (a) The name of the proposed corporate body which must contain the words Incorporated Trustees of ; (bold type supplied for emphasis) The key word in this provision is the word must which governs the provision. Going by legal effect of must, it follows that since the word must implies compulsion, any name of corporate body registered pursuant to section 591 must

5 contain those words. However, that is not the end of the matter. Section 596 states the effects of registration; amongst others, these include investing the registered body with the power to sue and be sued. There is no disagreement between the parties that the Claimant has been registered by the Corporate Affairs Commission. Ordinarily, one would have said that until the incorporated body is deregistered, all authorities must continue to give it the recognition accorded it by the law, but section 45 of the Trade Unions Act, CAP. T14, LFN, 2004 cast a big doubt on this. It provides that: The Companies and Allied Matters Act shall not apply to any trade union or to any Federation of Trade Unions; and the registration of any such body under that Act shall be void. It is not in doubt that the Respondent is set up with the sole aim of performing the functions of a trade union see paras. 6 and 7 of the Statement of Facts which show clearly the objects of incorporating the Respondent. When the words of a statute are clear and not contrary to the purpose of the Statute, a court of law is bound to give effect to it see LAWRENCE OKWUEZE V. EMMANUEL EJIOFOR (2000) 15 NWLR (PT. 690) 389 AT 410, PARAS. D E. There is no doubt that the words of section 45 of the Trade Unions Act are very clear as to the effect of the registration of a body corporate that intends to carry out the functions of a trade union under the CAMA. It declares such registration void. The registration of the Respondent under CAMA is therefore declared null and void see CORP. AFFAIRS COMMISSION V.AUPCTRE (2004) supra also reported in the DIGEST OF JUDGMENTS OF THE NIC ( ) R. 14 AT P The effect of declaring the registration of the Respondent under the CAMA null and void is that there is no Respondent before the Court; and the action is therefore accordingly struck out. As a result of my holding above, it is therefore unnecessary to consider any further issue, more so as the Court s jurisdiction has been divested in view of holding that there is no Claimant/Respondent before the Court. I make no order as to cost.. Hon. Justice B.A. Adejumo, OFR President, National Industrial Court of Nigeria