NUPENG V GECO PRAKLA NIGERIA LIMITED

NUPENG V GECO PRAKLA NIGERIA LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS
ON THE 21ST DAY OF APRIL, 2010


SUIT NO. NIC/46/2007

CITATION: NIC (2010) 4 LLER 1

CORAM:
Hon. Justice B. B. Kanyip – Presiding Judge
Hon. Justice V. N. Okobi – Judge
Hon. Justice F. I. Kola-Olalere – Judge
Hon. Justice O. A. Obaseki-Osaghae – Judge
Hon. Justice J. T Agbadu-Fishim – Judge


BETWEEN

THE NATIONAL UNION OF PETROLEUM AND NATURAL GAS WORKERS (NUPENG)

(CLAIMANT)

AND

GECO PRAKLA NIGERIA LIMITED

DEFENDANT


REPRESENTATION
Ogudu Eric, for the applicant

Festus Onyia, for the respondent

JUDGMENT

The applicant, by a writ dated 16th November 2007, sued the respondent in a representative capacity on behalf of its 998 members who were the entire junior staff (employees) of the respondent company called party 773 Unit at Ijaw-Burutu in Delta State.

The applicant averred that the respondent, at all times material to this suit, was prospecting for oil at a location at Ijaw-Burutu known as party 773 in Delta State and that the applicant’s members at party 773 were formally employees of Prakla Seismos (Nigeria) Ltd before the said company was bought over by Schlumberger and later merged with Seismograph Services (Nig) Ltd sometimes in 1991 to become Geco Prakla Nigeria Limited.

That on 29th day of June 1993, there was a collective agreement between the applicant and the respondent. The applicant and the respondent then jointly issued two communiques on 20th November, 1993 and 28th November, 1993 respectively. Also in January 1989, the respondent created a Trust Fund on behalf of its workers and a staff trust deed was executed and issued to all the workers including the applicant’s members. That on the 14th day of November 1993, the applicant’s members discovered without any notice that the respondent was secretly trying to move its equipments and materials from party 773 base. Series of meetings were held by the applicant with the respondent company between the 18th and 20th November, 1993 and a communique embodying most of the terms agreed upon was issued and signed by both parties on 20th November 1993.

The applicant submitted that pursuant to the communique issued on 20th November 1993, the applicant’s members resumed duty on the 29th day of November 1993, and that the respondent company invaded the site with about 200

mobile policemen and a hand full of the applicant’s members available at the site were forced to sign their pay-off at gun point under the guise of what the respondent called a “general redundancy” while those who were not available at that material point in time were denied their pay-off and other allowances till date.

The applicant’s claims, therefore, against the respondent are as follows:

(i) An interpretation of the collective agreement entered into between the applicant and the respondent company on the 29th June 1993 as to whether the purported

closure of party 773 and the purported termination of the applicant’s members who are junior staff in party 773 by the respondent company are in accordance with the said collective agreement,

(ii) An interpretation as to whether the communique issued and signed on 20th day of

November 1993 by both parties is binding on the applicant and the respondent for the benefit of members of the applicant at party 773.

(iii)An interpretation of the trust fund deed duly executed by the respondent company as to whether the applicant’s members at party 773 under the respondent company are entitled to benefit under the said Trust Fund Deed.

(iv)A declaration that the applicant’s members under party 773 are entitled to all their allowances and benefits as contained in the various communiques and collective agreement between the applicant and the respondent.

Parties agreed to argue the case on record by filing written addresses given that the action involved the interpretation of documents. This they did.

In its written address, the applicant listed the following as issues for the determination of the court:

(1) Whether there were collective agreements, communiques and trust fund deed between the applicant and the respondent for the benefit of the members of the claimant at party 773 Ijaw-Burutu, Delta State.

(2) Whether the purported closure of party 773 and purported termination of the applicant’s members who are junior staff in party 773 by the respondent is in accordance with the said collective agreements.

(3) Whether the communique issued and signed on 20th day of November 1993 by both parties was/is binding on the applicant and the respondent for the benefit of members of applicant at party 773 Ijaw-Burutu, Delta State.

(4) If ‘issue 4’ is answered in the affirmative, whether the applicant’s members at party 773 in the respondent company are entitled to benefit under the said trust fund deed and the collective agreement.

(5) Whether the applicant’s members under party 773 are entitled to all their allowances and benefits as contained in the various communiques and collective agreement between the applicant and respondent.

On issues 1 and 3, the applicant argued that Exhibit ‘A’ is a copy of the collective agreement between the applicant and respondent and that the respondent has not denied the existence of the said collective agreement. That it is a principle of pleading that fact which is not denied is deemed to have been admitted, hi support of this position the applicant referred the court to the case of United Parcel Service Ltd v. Ufot [2006] All FWLR (Pt. 314) 337 at 361.

That the respondent in paragraph 4 of its statement of defence made a halfhearted attempt at denying Exhibits ‘A’ (the collective agreement) and ‘C’ (i.e. the various communiques) entered into by the applicant with the respondent. The applicant submitted that failure of the respondent in its statement of defence to sufficiently and conclusively deny and traverse averments contained in the statement of facts is tantamount to admission of the existence of the collective agreement and the said communiques. The applicant’s counsel referred the court to the case of University of Ilorin Teaching Hospital Management Board v, Ajide [2006] All FWLR (Pt. 326) 282 at 384 and Parts (A), (B), (C) and (D) of the introductory part of Exhibits D (staff trust deed).

The applicant further submitted that it is not in dispute that the applicant’s members were junior (non managerial) staff of the respondent company. It is equally clear on the face of the Trust Deed that the respondent company executed the said Trust Deed for the establishment of a Staff Trust Fund for the benefit of the employees of the respondent company, the applicant’s members inclusive and that it is important to note that while the applicant’s members were in the respondent’s employment, deductions were made at source from the applicant’s members salary by the respondent company pursuant to the staff Trust Fund Deed. The respondent in paragraph 6(ii) of the statement of defence denied the existence of the Trust Fund in the respondent company. The applicant submitted that the respondent, in view of the content of the said trust deed, cannot at this stage resile from the said deed. As such the defendant’s contention of the

non-existence of any trust fund in the respondent company should be discountenanced. The defendant’s bare ipse dixit cannot turn around in its favour in the face of clear documentary evidence to the contrary.

The applicant further averred that a written agreement entered into by parties is binding on them and where there is any disagreement between parties to such written agreement on any particular point the only reliable evidence and legal source of information to resolve the claim is the written contract executed by the parties. Counsel to the applicant then referred the court to the cases of Larmie v. ‘Date’ Processing Maintenance & Services Limited [2006] All FWLR (Pt. 296) 75 and SPDC v. Emahum [2007] All FWLR (Pt. 381) 1674 at 1709 – 1710. hi the case of Unilife Ltd v. Adeshingbin [2001] 5 NSCQR 406 at 440, it was held that the main object of interpretation and/or construction of a document is to discover the intention of the parties which is deducible from the language used. That, that role is the responsibility of a court of law which cannot under any guise whatsoever defeat the meaning of the document which clearly or expressly embodies the terms both parties have agreed to bind them. The applicant also cited the case of George Itedgere v. Mewton Oharisi [2007] All FWLR (Pt. 384) 347 at 368.

The applicant then urged the Court to give effect to Exhibits ‘A’ and ‘D’ as valid agreement between the applicant and the respondent company for the benefit of the applicant’s members who were junior staff in the respondent company in unit 773 Ijaw-Burutu, Delta State.

The applicant referred the court to paragraph 4 of the statement of fact and paragraphs 2 and 3 of the statement of defence and then submitted that the respondent has not denied paragraph 4 of the said statement of fact. That it does look like legal quibbling to deny lethargically in one breath, as the respondent did in paragraph 6(i) of the statement of defence, that the respondent was not bought over and that nobody is entitled to any buy over benefit(s) and in another breath enter into an agreement and subsequently paid the buy over benefit to unit 774 Ijaw-Burutu, a sister unit of the applicant who are/were junior employees of the respondent. Exhibit ‘B’ is a communique issued by the applicant’s members in unit 774 Ijaw-Burutu and the respondent on the one hand and the respondent and Halliburton Geophysical Services (HGS) on the other hand. That in view of Exhibit ‘B’ it will amount to double standard on the part of the respondent company to pay the buy over benefit(s) to unit 774 Ijaw-Burutu as they rightly did and at the same time denied the applicant’s members in unit 773 Ijaw-Burutu the same buy over benefit(s). The applicant again urged the Court to declare that the applicant’s members under party 773 are entitled to buy over benefit(s) from Schlumberger having bought over Prakla-Siesmos to become Geco-Prakla.

The applicant submitted that the respondent breached the agreement reached between it and the applicant’s members vide the communique (Exhibit C) issued on 20th November 1993. In the said communique, both parties agreed that the applicant’s members in unit 773 Ijaw-Burutu should proceed on 7 days time-off with pay from 22nd November 1993 to 28th November 1993. To the applicant, paragraph seven (7) of the said communique is to the effect that during the period of ‘off the management promised not to victimize any of the union members on party 773. In breach of the said paragraph of the communique, the respondent went ahead on 29th November 1993 to lay off the applicant’s members in unit 773 Ijaw-Burutu and that both parties in the said communique agreed on the sanctity of the collective agreement and expressed confidence in NUPENG in all dealings relating to their members. That the respondent company breached the said agreement by laying off the applicant’s members without regard to the collective agreement.

Also that Clause (25) of the collective agreement stipulates that “if a confirmed employee’s employment is terminated as a result of redundancy, such employer shall be entitled to 3 weeks gross pay pro-rated if he had spent 3 months to 1 year or 1 month’s gross pay for each completed year of service if he had spent 1 year and above. That gross pay includes monthly basic pay, housing, transport and family medical allowances and that all these entitlements were denied the applicant’s members of unit 773 Ijaw-Burutu who were laid off by the respondent in what the respondent described as general redundancy.

That Clause (26) of the collective agreement states further that an employee who has faithfully discharged his duties for a period of not less than two continuous years and is not leaving the company through dismissal, shall be entitled to a leaving gratuity of one month’s basic pay per completed year of service and shall be pro-rated and that all the workers of unit 773 in Ijaw-Burutu, Delta State laid off by the defendant on 29* November 1993 were not paid their gratuity.

The applicant then referred the court to ‘recommendation 91 of 1951 of the International Labour Organization (an organization which Nigeria is a member)’ which stipulates that collective agreements should bind the signatories and those on whose behalf the agreement is concluded; stipulations in contracts of employment (if available) which are contrary to the provisions in a collective agreement are regarded as void and automatically replaced by the stipulations in the collective agreement. The applicant further referred the court to the book, Emeka ‘Chinu’ – Employment Law, Nigeria, 2004 page 93. The applicant then urged the Court to give effect to the collective agreements between the applicant’s members and the respondent company.

On issue 2, the applicant submitted that the purported closure of party 773 Ijaw-Burutu and subsequent termination of the applicant’s members by the respondent was not in consonance with the collective agreement between the applicant and the respondent and that clause 5(B) of the collective agreement provides steps for the settlement of grievances between the respondent company and the applicant’s members. They referred the court to clause 5(b) step 4, 5 and 6 of the said collective agreement.

On issue 5, the applicant submitted that it is the contention of the applicant’s members in unit 773 Ijaw-Burutu that till date all their allowances and benefits as contained in the various communique and collective agreements between the applicant and the respondent have not been paid. The applicant contended that these agreements were freely entered into by both parties.

That the applicant’s members having been laid off by the defendant company are entitled to the allowances and other benefits pursuant to the collective agreement and the communiques issued jointly by the parties. That it is too late in the day for either party to resile from their agreement to avoid doing violence to substantial justice. The applicant urged the Court to so hold and make an order for payment of all the applicant’s members’ benefits and allowances by the respondent.

Furthermore, that section 20(i)(a) of the Labour Act provides that “the employer shall inform the trade union or workers’ representative concerned of the reasons for and the extent of the anticipated redundancy. In the instant case, the applicant was not informed neither was the reason for the redundancy made known to the applicant. The applicant submitted that an obligation to inform can be extended to providing all relevant facts so that where relevant facts are concealed or misrepresented, a declaration of redundancy can be annulled. Alternatively, such breach can be held as a breach of statutory duty and due damages awarded an employee who is duly prejudiced. Counsel to the claimant referred the court to the cases of National Union of Hotel and Personal Services Workers v. Imo Concorde Hotels Ltd [1994] NWLR (Pt. 320) 306, Steyer (Nig) Ltd v. Gadzama [1995] 7 NWLR (Pt. 407) 305.

In Steyer (Nig) Ltd v. Gadzama, the respondents were retrenched with no evidence that the conditions precedent to declaring employees redundant were followed. Orah, JCA declared the retrenchment invalid and awarded the respondent claim for damages. The court said —

… thus the respondents were forced out of employment in total and flagrant violation of the procedure and laid down precedent to declaring them redundant without regard to their length of service and loyalty etc (they) dealt with the respondent as disposable wastes.

The applicant finally urged the court to hold that the purported termination of the t employment of the claimant’s members at unit 773 Ijaw-Burutu, Delta State on 29th November 1993 was a breach of both the collective agreement and the Labour Act.

The applicant concluded that in Nigeria, oral termination, “lay-off or “removal” is common place even though for over three decades the Labour Act 1974 has abolished it. Section 11(3) provides that any notice for determination of a contract of employment for a period of one week or more shall be in writing. The applicant urged this court to insist on the application of this provision. That it is a paradigm of statutory meaninglessness to allow almost everything to happen without sanction and that the sanctity of a collective agreement must be entrenched. The view that collective agreements are enforceable only where expressly incorporated in the individual employment contract of an employee should not apply where there is evidence that both parties have relied on the collective agreement and where there is no individual employment contract terms as in the present case.

The applicant concluded its address and urged the court to declare that the collective agreement and all the communiques issued by the parties are binding and enforceable, and that the applicant’s members are entitled to all

their allowances and benefits in consonance with the collective agreement, staff Trust Fund and other agreements between the applicant and the respondent company.

The respondent’s written address is dated 23rd November 2009 and filed on the 24th of November 2009. The respondent prefaced its submission by stating that in submitting a written address in respect of the substantive suit without trial having been conducted in the matter, it does not thereby waive its rights to trial of the allegations made against it, which right is hereby reserved. The respondent went on to state that by submitting this written address, it DOES NOT admit any or all of the allegations of facts made against it as contained in the applicant’s statement of facts and on which it has joined issues with the claimant.

To the respondent, this suit which was instituted on 16th November, 2007 is time-barred in so far as it is based on a cause of action which purportedly arose/accrued in November, 1993. As contained in paragraph 8 of its Statement of Defence dated the 22nd day of October, 2009 the respondent contended that this court does not have the jurisdiction to entertain this suit because the suit is time-barred having commenced in 2007 on the basis of alleged breach by the respondents in 1993 of some collective agreement, communiques and trust deed. That the law is now settled that in determining the jurisdiction of the court it is the plaintiffs claims as endorsed on both the writ of summons and statement of claims that would be considered. The respondent referred the court to the cases of Adeyemi v. Opeyori [1976] 9 – 10 SC 31, Mafimisebi v. Ehuwa [2007] 2 NWLR (Pt. 1018) 385 at 428C and Nkuma v. Odili [2006] 6 NWLR (Pt. 977) 587at608D-G.

That the applicant claims that it signed a collective agreement dated 29th June, 1993 with the respondent which it alleged regulated the affairs of its members with the respondent company and that apart from the collective agreement, it also entered into various communiques. The core/gravamen of the applicant’s claims are as set out in paragraphs 16 to 21 of the Statement of Claim.

The respondent submitted that the present claims relate to alleged breach in November, 1993 of some purported agreements which both the applicant and the respondent had allegedly signed for the benefit of the applicant’s members. That it is trite law that under Nigerian law, the limitation period for actions founded on breach of contract is six

(6) years. Thus actions founded on simple contracts shall not be brought after the expiration of six years after the date on which the cause of action arose – whether as it relates to the alleged breach of the collective agreement or the trust deed which occurred in November, 1993. That the termination of the contract of employment of the applicant’s members, including the alleged use of force to force them to collect their terminal benefits took place, also in 1993. That in the case of P. N. Udoh Trading Co. Ltd. v. Abese [2001] 11 NWLR (Pt. 723) 114, particularly at 129 B, it was held that a cause of action arises as soon as a combination of facts and circumstances giving rise to file a claim in court for a remedy accrues or happens. In the case of LUTH v. M. B. Adewole [1998] 5 NWLR (Pt. 550) 406, particularly at 418 F – H, the Court of Appeal, relying on the English decisions in the twin cases of Battle v. Faulkner (1820) 3 B 2 ALD 282 and Howell v. Young (1826) 5 B & C, 259, held that the cause of action in a contract arises not when the damage is suffered but when the breach occurs. That the Court further held that the statute of limitation begins to run from the time not when the damage results from the breach of the promises but the time when the breach of promise takes place and that the Limitation Act runs from the time when the contract is broken and not from the time at which damage resulting there from is sustained by the plaintiff.

The respondent said that this suit was commenced in 2007 fourteen (14) years after the cause of action allegedly arose and submitted that where the applicant’s claim is shown to be statute-barred, the legal effect is that his cause of action has ceased to exist and this court no longer has jurisdiction to adjudicate on the subject matter of this case. Counsel referred the court to a plethora of cases and that the Supreme Court has decided in a number of cases that for a court to adjudicate on a matter, it must be competent to do so. That in the case of Gabriel Madukolu & ors v. Johnson Nkemdilim [1962] 2 NSCC 374 at 379 – 380 it was held that a court is competent when:

(a) It is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or the other;

(b) 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

(c) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to

the exercise of jurisdiction.

That any defect is fatal for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to adjudication. The respondent also referred the court to the case of John Agbaji Attah Ochaga v. Military Administrator ofBenue State & anor [2001] 1 NWLR (Pt. 695) 575 at 585 C – F.

On whether the applicant’s case should not be dismissed for failure to call evidence on the critical allegations on which both parties have joined issues, the respondent submitted that by the state of pleadings, the parties have joined issues on the following issues, amongst others:

1. Whether or not the respondent forced the applicant’s members at gun point to collect their redundancy package, referring to ‘paragraph 17 of the Statement of Facts and paragraph… of the Statement of Defence’.

2. Whether or not the members of the applicant who worked for the respondent had been paid their redundancy benefits, referring to the applicant’s paragraph 18 and the respondent’s paragraph 6(iii).

3. Whether or not there was a trust deed between the applicant’s members and the respondent, referring to the applicant’s paragraph 19 (b) and the respondent’s paragraph 6 (ii).

4. Whether or not the respondent was ever “bought over” so as to entitle the applicant’s members to some alleged “buy over benefits”, referring to the applicant’s paragraph 19 (a) and the respondent’s paragraph 6 (a)

That, having joined issues on those facts, the Court has a duty to proceed to trial of the matter. In the case of Imana v. Robinson [1979] All NLR 1 at 9, the Supreme Court held that, “once pleadings have been settled, and issues joined, the duty of the court is to proceed to trial of the issues and if one party fails or refuses to submit the issues he has raised in his pleadings for trial by giving or calling evidence in their support, the trial [court] must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party”. The respondent also referred to sections 135(1) and 136 of the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2004 and the case of Dada v. Dosunmu [2006] 18 NWLR (Pt. 1010) 134, particularly at 171 G – H and submitted that the applicant has a duty to lead evidence to prove the allegations contained in its statement of facts.

The respondent submitted that it is not correct as suggested by the applicant that the applicant’s case relates just to interpretation of documents. It may well be so if one only read the remedies/reliefs claimed, but when the entire pleadings are considered holistically, that it will be clear that there are irreconcilable issues of facts in that the respondent is contesting the existence of the documents which the applicant wants this court to interpret. That the issues can only be resolved by calling evidence. By taking the view that the applicant’s case relates to interpretation of documents, the applicant has assumed that all the allegations contained in the Statement of Facts have been proved against the respondent and that the only thing remaining is for the court to interpret the collective agreements, trust deed and communiques.

That there is no evidence whatsoever before the court regarding the names of the workers whose terminal benefits were said to have been withheld by the respondent; none of the workers whose terminal benefits are alleged to be outstanding has given evidence as to the terms of his employment and/or as to the amount (if any) that is due to him from the respondent. Furthermore and, in order to further demonstrate that the applicant’s case is not just for the interpretation of collective agreement, the respondent referred to issue No.l; that it is clear from the nature of this issue that the applicant and the respondent are not at ad idem regarding the existence of the collective agreement.

The respondent further submitted that it is clear on the face of the collective agreement attached that the collective agreement was entered into between Seismograph Service Nigeria Limited and Seismograph Service Branch of NUPENG. That even by the applicant’s own document, the collective agreement sought to be interpreted in this suit does not relate to the respondent, but was executed by a different entity and that at no time was it bought over by any entity and that the applicant has the burden of establishing the nexus between the collective agreement and the respondent on record.

The respondent further submitted that the applicant is not a party to the said trust deed and has no business suing for its enforcement. That it is a trite principle of Nigerian law that only parties to an agreement can sue for its enforcement. The applicant is, therefore, a stranger to the agreement and has no business suing for its enforcement. That, the applicant’s counsel in his written submission dated 10th February, 2009 (regrettably un-paginated and without numbered paragraphs) submitted that “it is important to note that while the [applicant’s] members were in the [respondent’s]

employment, deductions were made at source from the [applicant’s] members (sic) salary by the respondent pursuant to the Staff Trust Deed.” There is no piece of evidence before this court to prove this fact. That it is settled law that argument of Counsel, no matter how brilliant does not amount to evidence.

The respondent concluded by urging the court to strike out the suit for being time-barred and to dismiss the applicant’s case for failure to adduce evidence to prove the critical allegations on which both parties have joined issues.

The applicant filed a reply on points of law to the respondent’s written address dated the 23rd day November, 2009. To the applicant, the respondent made submissions based on the following non-existing grounds:-i. Jurisdiction – statute-bar.

ii. Non Calling of oral evidence in this suit.

iii Parties to the collective agreement/trust fund and existence thereof.

The applicant then submitted that the suit is not the type that is affected by time, the documents/subject matter of this suit sought to be interpreted is not the contract of employment per se but understandings/undertakings of which the terms impose duties and liabilities on the parties during the subsistence and non-subsistence (determination) of the contract of employment. That some terms of the documents (subject matter of this suit) live beyond the contract of employment. That it follows, therefore, that the termination of the contract of employment does not automatically amount to the termination of the documents/subject matter of this suit and so no time accrues for actions thereof. That it was a misconception on the part of the respondent that time accrues from the date of breach of the terms in the document (subject of this suit).

That the position of law is that where there is a continuance of damage or breach, the law of limitation of action shall not apply. The applicant then referred to the Supreme Court case ofAremo II v. Adekanye & 2 ors [2004] 42 WRN 1. In the instant case, the refusal by the respondent to comply with the terms in the agreement/document even up till now is continuous breach of which the statute of limitation shall not apply. So this case is not statute-barred and the court has a jurisdiction to entertain the suit.

On the issue of non-calling of oral evidence in this suit the applicant submitted that the issue has been settled by this court when first raised by the respondent, but was overruled and dismissed by the court in its well considered ruling on the 22nd day of July, 2009 to the effect that documentary evidence and written submissions of counsel from both sides are good enough indices for the court to do substantial justice to this case. Raising the issue again after the ruling of this court amounts to gross disrespect to this court and also forcing the court to sit on appeal on its own decision; and that also it is a settled law that documentary evidence is the best evidence and the court can rely solely on it to pass its judgment. The applicant referred the court to the case of Agbareh v. Mimira [2008] 1 King Law Report (KLR) (Part 246) 67 particularly at 70 and section 132(1) in Part VI of the Evidence Act.

On the issue of the parties to the collective agreement/trust fund and their existence thereof, the applicant argued that the position of the law is that fact not denied is deemed admitted and that truths need no denial. The applicant in paragraph 4 of the statement of fact averred that the respondent changed its name from Seismograph Services Nig. Ltd. to its present Geco Prakla Nig. Ltd (specifically pleaded) and the respondent made no successful attempt to deny it. It, therefore, confirms that the averment in the said paragraph 4 of the statement of fact is true.

That also, it is a trite law that change of name does not divest a person his assets and liabilities which he acquired in his old name. That paragraph 3 of the collective agreement Exhibit (A) talks about change of name to the effect that if any of the parties changes its name, the same party shall still be liable in its new name to the terms of the collective agreement it entered in its old name. Thus that the argument that the respondent is not liable to terms in the collective agreement simply because the collective agreement does not bear its new name has no probative value and not tenable.

The applicant further submitted that the Nigerian Enterprises Promotion Act 1977 and paragraphs A, B, E, I (h), (i), (n) and (f) of the Trust Fund provides that a person other than the beneficiaries (the applicant in the instant case) shall enter the contract on behalf of the beneficiaries and hold the fund on trust for the beneficiaries. And also that the law is that the beneficiaries can sue for his interest in a property being managed by the trustee which is what is applicable in the instant case. That the argument that the applicant (beneficiary) is not part of the Trust Fund is a misconception of the law by the respondent.

On the issue of the existence of the collective agreement and trust fund, the applicant invoked the principle of res ipsa

loquitur. That the documents i.e. the collective agreement, trust fund and communique are attached as Exhibits, referred to and can be seen. Thus their existence is not in doubt. Counsel then referred the court to the case of Omeziri v. Okoh [2005] 7 WRN at 184.

The applicant said that the respondent cannot be heard alleging non-existence of these documents when in fact he had earlier on in its submission raised the issue of the case being statute-barred arguing that the time of action has elapsed between the time of cause of action alleged to have been founded on the breach of the same document and the time of action. That it means that the defendant is aware and admits the existence of the documents but worries about the time to bring an action on the breach thereof; coming at the end of its same argument to raise question on the existence of the same document (of which it had earlier on argued that action on the breach thereof is out of time) amounts to approbating and reprobating, which is not allowed in law. The applicant then referred the court to the case ofKannike v. Fayomi [2005] 9 WRN at 179.

The applicant concluded by urging the court to enter judgment as per the reliefs it seeks.

Before considering the merit of the case at hand, we wish to remark on the chicanery of the respondent’s counsel, Mr. Festus Onyia in trying to reintroduce an issue that had already been ruled upon by this court and for which he (counsel) filed a motion for stay of proceedings on the ground of a pending appeal, which processes were, however, later withdrawn by him. The preface to the respondent’s written address is to the effect that in submitting the respondent’s written address, ‘it does not thereby waive its rights to trial of the allegations made against it which right is hereby reserved’. At the commencement of this case, both parties and their counsel agreed to argue this case on record by filing written addresses given that the applicant came by way of the interpretation jurisdiction of the court. Despite both counsel’s agreement to this effect, Mr. Onyia would later file a motion asking this court to vacate its order as to filing of written addresses. By a considered ruling delivered on July 22, 2009, this court ruled that the said application to arrest/vacate the order to file written addresses as agreed by both counsel lacks merit and the application was dismissed. It is surprising, therefore, that Mr. Onyia would still choose to express reservations in that regard. This form of subtle threat and ridicule of the court smacks of professional misconduct on the part of counsel that this court and the legal practitioners’ disciplinary committee should not condone. What does Mr. Onyia mean by the statement that ‘in submitting this written address in respect of the substantive suit without trial having been conducted in the matter…’ ? If this is not to cast aspersions on the court, we wonder what would. This is a matter we think that the legal practitioners’ disciplinary committee needs to look into.

That point made, we now turn to the merit of the case. The first issue raised by especially the respondent is that the case at hand is statute-barred. We do not share this view of the respondent. In the case of Solako v. LEDB & anor [1953] 20 NLR 169, De Commarmand, SPJ (as he then was) held that the limitation law in issue did not apply to cases of recovery of land, breach of contract, claim for work and labour done. Following in this principle, this court has in several cases held that the limitation laws do not apply once the labour rights of a worker are in issue. For instance, in four cases decided by this court, namely, PERESSA v. SSASCGOC & ors unreported Suit No. NIC/25/2007 delivered on March 3, 2008, John Ovoh v. The Nigerian Westminster Dredging and Marine Ltd unreported Suit No. NIC/9/2002 delivered on April 1, 2008, SSAUTHRIAI v. ASURI & ors unreported Suit No. NIC/LA/34/2008 delivered on March 2, 2010 and Omosuyi & ors v. Hon. Minister, Ministry of Foreign Affairs & ors, unreported Suit No. NIC/ABJ/11/2009 delivered on 29th March, 2010 this court had the opportunity to review the authorities on the subject of limitation of actions and then held inter alia that –

1. In labour matters, the limitation of actions law is inapplicable and so a cause of action cannot be statute-barred given that the injury complained of is always of a continuing nature.

2. Whether or not a cause of action is affected by the limitation law as to make it statute-barred is an issue that can only be raised as a defence and not one to be raised as affecting the jurisdiction of the court, for a court may have the jurisdiction to entertain a matter but may nevertheless rule in favour of the defence on the ground that the matter is statute-barred. In this sense, the question of limitation of action is simply one of disability. It is not that the claimant has no rightful claim, or that the court has no jurisdiction; only that the claimant is disabled by time from pursuing the claim in issue.

3. In general, the limitation law is inapplicable where labour rights are in issue; for to hold otherwise may mean that an employer minded not to pay an employee’s salary would only need to stall until the expiration of the limitation period. The injustice of this case is best imagined.

In any event, what the applicant has done is to activate the interpretation jurisdiction of this court under which there is no limitation as to the time of action. We do not, therefore, agree with the submission of the respondent that the present action is statute-barred.

The question, however, remains whether the applicant in arguing its case restricted itself to the question of interpretation since it came to this court through the process of activating the interpretation jurisdiction of this court. The interpretation jurisdiction of this court is one of the few ways of activating the original jurisdiction of this court. And in so doing, this court has cautioned that an applicant must then restrict itself to just interpretation, and nothing else. This court in fact frowns on applicants who use the interpretation jurisdiction of the court in order to side-track the dispute resolution processes of Part I of the Trade Disputes Act 2004.

In a number of decisions, this court has laid down the principles that govern the activation of the interpretation jurisdiction of this court. For instance, the interpretation jurisdiction of the NIC is exclusive to the NIC (National Union of Hotels and Personal Service Workers v. Hotel Diplomat Ltd and anor [2005] 2 NLLR (Pt. 5) 241 especially at p. 249) and it cannot be used to adjudicate substantive trial issues (Itodo and ors v. Chevron Texaco Nigeria [2005] 2 NLLR (Pt. 5) 200 especially at pp. 221 – 223 and National Union of Hotel and Personal Services Workers v. Palisco Nigeria Limited and anor. unreported Suit No. NIC/15/2000 decided on April 27, 2006).

To activate the interpretation jurisdiction of the NIC for the purpose of interpreting a collective agreement, there must be a sufficient nexus between the applicant and the collective agreement in question (Itodo and ors v. Chevron Texaco Nigeria [2005] 2 NLLR (Pt. 5) 200, supra, National Union of Hotel and Personal Services Workers v. Palisco Nigeria Limited and anor, supra, and National Union of Hotels and Personal Service Workers v. Whassan Surest (Nigeria) Ltd [2005] 2 NLLR {Pt. 4) 145 especially at p. 154). It is not enough that the applicant benefits from the collective agreement without more. To be so entitled, there has to be proof that the beneficiary is a member of the signatory trade union to the collective agreement (Itodo and ors v. Chevron Texaco Nigeria, supra, at pp. 221 – 223). Where a trade union may not want to come to court on behalf of its aggrieved members regarding the interpretation of a collective agreement, the said members may apply directly to the NIC and will be accorded recognition upon proof of membership of the union that signed the collective agreement and the reluctance of the union to approach the court on their behalf (Itodo and ors v. Chevron Texaco Nigeria, supra). Because a collective agreement cannot be interpreted in vain, the party against whom the interpretation is sought must be shown to be bound by the collective agreement as by being a party to the collective agreement (National Union of Hotels and Personal Service Workers v. Whassan Surest (Nigeria) Ltd, supra). This was one of the grounds upon which this court dismissed the claims of the applicants in the case of Joy Maskew & ors v. Tidex Nigeria Limited unreported Suit No. NIC/1M/98 delivered on November 25, 2008 where an application for interpretation was brought under section 15 of the TDA 1990.

The ploy, in practice, of using the interpretation jurisdiction to avoid or circumvent the processes of Part I of the TDA has often been frowned on by the NIC as the case of Hotel and Personal Services Senior Staff Association v. Tourist Company of Nigeria Pic unreported Suit No. NIC/14/2002 decided on October 27, 2004 shows. See also the case of National Union of Hotel and Personal Services Workers v. Palisco Nigeria Limited and anor, supra. In that case, the processes of sections 3 and 5 of the TDA had actually been activated before counsel filed the matter in the NIC under provisions of sections 15 and 20 of the TDA dealing with the interpretation jurisdiction of the court. What was even worrisome was the evasive strategy adopted by counsel in filing the suit. Section 15 of the TDA, for instance, talks of the interpretation of a term or provision of the collective agreement in issue. Yet when counsel filed the action, the grouse was that the collective agreement did not have any provision allowing or authorizing the respondent to withhold the payment of the entitlement of a resigned staff based on an unsubstantiated allegation. In the case, this court held that the interpretation jurisdiction/power of the court is positive and direct, and a provision or term of the collective agreement in issue must be indicated for interpretation. In other words, interpretation cannot be in a vacuum. If the desire is that all the terms of the collective agreement are to be interpreted, this must be indicated with sufficient particularity to enable both the court and the opposing party to know what interpretation the applicant is seeking. There must be no ambush of any sort in the guise of interpretation.

All these principles have been flouted by the applicant in the instant case where its submissions were more on other than issues of interpretation. As pointed out by the respondent, there are substantive trial issues in the case filed by the applicant for which their resolution is best suited to the processes of Part I of the Trade Disputes Act. For instance, this court was not told whether communiques and a trust fund deed qualify as collective agreements for purposes of the interpretation jurisdiction of this court; the applicant did not seek for the interpretation of provisions of the documents it listed, instead what it sought was for the application of some of the provisions of the said documents; only a trial would have determined the actual beneficiaries of the documents in issue, etc.

Before concluding, we must make the point that it is surprising that despite the plethora of decisions of this court on its interpretation jurisdiction as we have referred to above, there was a marked lack of depth in research and scholarship by both counsel to aid the court in that regard. Both counsel made no attempt to refer this court to its relevant decisions on the issue at hand. This does not say well of the quality of legal representation required of counsel.

For all these reasons, we hereby hold that the applicant, in activating the interpretation jurisdiction, is merely side-tracking the processes of Part I of the Trade Disputes Act. This we cannot sanction. There is nothing in the brief of the applicant to suggest the interpretation of the documents listed; instead what we have is a call by the applicant to apply the provisions of the documents in issue to unnamed members of the applicant union. The case of applicant must, therefore, fail and we so hold. The case is accordingly dismissed for want of a cause of action.

Judgment is entered accordingly.