CORAM

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PARTIES

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1. GOVERNING COUNCIL OF NATIONAL TEACHERS INSTITUTE, KADUNA2. DIRECTOR-GENERAL OF NATIONAL TEACHERS INSTITUTE, KADUNA

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NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU)

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AREA(S) OF LAW

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SUMMARY OF FACTS

This appeal arose from the judgment of the National Industrial Court of Nigeria sitting at Abuja. The Respondent herein, is the Union of Non-academic Staff of Educational and Associated Institutions in Nigeria. The Respondent conducted an election for its members in the Appellant’s Institute, which is an Educational body. Following the election, the Respondent, inaugurated its branch in the Appellants’ Institute. It conveyed this fact to the Appellants and further requested the deduction of the monthly check off dues of the eligible members and remittance to the Respondent. The Appellants refused to accede to the request on the basis that the jurisdiction of the Respondent did not include the Appellants’ institution and that the non-academic staff had disassociated themselves from the activities of the Respondent. The Respondent then took out an Originating Summons against the Appellants wherein they submitted three questions for determination. These are; Whether by the provision of Section 25(1) of the Trade Union Act, it is not mandatory for the Defendants to give recognition to the Claimant; Whether by the provision of Section 40 of the Constitution of Federal Republic of Nigeria 1999 (as amended), the Defendants can abrogate the rights of the Claimant’s members in their establishment by failing to recognize their Constitutional rights; Whether by the provisions of Section 17 of the Trade Unions Act Cap. T. 14 Laws of the Federation 2004 and Section 5(3) (a) & (b) of the Labour Act Cap. L1 Laws of the Federation 2004, it is not obligatory on the part of the Defendants to make deduction from the wages of every worker who is eligible to be a member of the Claimant and pay any sum so deducted directly to the registered office of the Claimant.” He then sought for seven further reliefs. The trial Court granted all the reliefs sought for by the Respondent, hence this appeal.

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HELD

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Appeal Allowed.

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ISSUES

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Whether having regards to the decision of the Supreme Court in OWNERS OF M. V. ARABELLA Vs. N.A.I.C (2008) 11 NWLR (Pt. 1097) 182 and the provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act is inapplicable to the National Industrial Court? Whether having regards to the provision of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 12(4) of the Trade Union Act, the learned trial judge erred in law when he held that the employees of the appellants Institute cannot opt out of the membership of the respondent? Whether having regards to Exhibit NTI I” and extant provisions of the Trade Union Act, the learned trial judge erred in law when he ordered deduction of the check-off dues from the wages/salaries of the employees of the appellants Institute to be paid to the respondent’s registered office

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RATIONES DECIDENDI

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ISSUE OF JURISDICTION – WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS

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“Jurisdiction is fundamental to the Court’s power to adjudicate on a particular matter, and being so, it can be raised at any stage of the proceedings, even in the Supreme Court for the first time, and in any manner, orally or otherwise and even suo motu by the Court – Ezomo Vs. Oyakhire (1985) 1 NWLR (Pt. 2) 195; Galadima Vs. Tamba (2000) 11 NWLR (Pt. 677) 1 and Buremoh Vs. Akande (2017) 1 SCNJ 207 at 249.

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SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT – WHETHER SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT IS APPLICABLE TO THE FEDERAL HIGH COURT

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“In the case of the Owners Of The M.V. Arabella Vs. N.A.I.C. (SUPRA), the Supreme Court per Akintan held that-
“It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts, including the Federal High Court. The said provisions, in my view, have nothing to do with coverage of the Jurisdiction of the Federal High Court, which is nationwide. It is therefore a total misconception to believe that the provisions of the section are in applicable to the Federal High Court because the jurisdiction of that Court covers the entire nation.”
This was partly based on the heading of the Act which provides that it is for the service and execution of civil processes, amongst other things, “of the Courts throughout Nigeria.” The clear position of the Supreme Court therefore, is that Section 97 of the Act applies to the Federal High Court, even though it has a nation-wide jurisdiction.”

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SERVICE OF A WRIT OF SUMMONS – APPLICABILITY OF SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT TO THE FEDERAL HIGH COURT

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“What about the applicability of Section 97 of the Act to the trial Court? The trial Court has similar nation-wide jurisdiction with the Federal High Court, and stands on the same ground with it. There is nothing extra added to the trial Court which the Federal High Court lacks in terms of coverage of jurisdiction. The case of Owners Of M.V. Arabella has shown that jurisdiction in the Federal High Court, is taken to be territorial jurisdiction of the Court in a particular division, thus necessitating endorsement when the process is to be served outside that territorial jurisdiction. It was not meant to be a jurisdictional jurisdiction of the Federal High Court. It is to be noted that the definition of “COURT” in Section 19(1) of the Act is said to “include a High Court and a Magistrate Court.” This means that “COURT” is not restricted to only High Court and a magistrate Court. Other Courts of similar nature are necessarily contemplated. The Courts similar in nature are the Federal High Court and the National Industrial Court of Nigeria. I would also say that it is a ‘misconception’ to argue as the trial judge did, that because the Act is said to apply to all superior Courts of record in Nigeria, then it means it will apply to Sharia Courts of Appeal, Customary Court of Appeal, the Court of Appeal and the Supreme Court. This cannot be, because in Owners Of M.V Arabella (Supra), the Supreme Court held that the said Section 97 of the Act is applicable in “all High Courts including the Federal High Court.” Therefore, not only did the Supreme Court not hold that the section is applicable to Sharia Court of Appeal, Customary Court of Appeal, Court of Appeal and the Supreme Court, but these Courts are not in similar statuses, with High Courts, Federal High Court, National Industrial Court of Nigeria, since the former are essentially appellate Courts and the latter, essentially trial Courts.
By analogy therefore, and following the reasoning in Owners Of M.V. Arabella (Supra), which was re-stated and applied recently in December 2017 in Central Bank Of Nigeria Vs. Interstelta Communications (Supra), Section 97 of the Act is applicable to the trial Court”

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SERVICE OF A WRIT OF SUMMONS – REQUIREMENT OF SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT ON THE SERVICE OF A WRIT OF SUMMONS

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“Further, Section 97 of the Act provides –
“Every writ of Summons for service under this part out of the State or the Capital Territory in which it was issued, shall in addition to any other endorsement or notice required by law of such State or the Capital Territory, have endorsed thereon, a notice to the following effect (that is to say) –
‘This Summons (or as the case may be) is to be served out of the State..’
Pursuant to above, Ogbuagu JSC in Owners Of M.V. Arabella (Supra), in the leading judgment, cited with approval, the case of Bello Vs. National Bank Of (Nig) Ltd (1992) 6 NWLR (Pt. 246) 206 at 217 – 218 per Achike JCA, where he held –
“It is clear that the provisions of Section 97 of the Sheriffs and Civil Process Act are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under Section 97 is not a mere irregularity but is a fundamental defect that renders the Writ incompetent….”
He further held that –
“I note that even the issuance of the said writ of summons which was not endorsed for service on the defendants outside jurisdiction, was rightly declared by the learned trial judge as void. This is because of the mandatory nature of the Provisions of Section 97 of the Act..”

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ORIGINATING PROCESS – IMPORTANCE OF THE VALIDITY OF ORIGINATING PROCESS ON THE JURISDICTION OF A COURT

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“The validity of originating process in a proceeding before a Court of law, is crucial and fundamental. It is an indispensable requirement or condition for the competence of the suit, a fortiori, the competence of the Court to entertain it. Thus where the originating process is invalid or even defective, it cannot activate the jurisdiction of the Court. This is because a valid originating process is a condition precedent for the Court to have competence and so jurisdiction. See Braithwaite Vs Skye Bank Plc (2012) LPELR 15532 (SC) and Madukolu Vs. Nkemdilim (1962) 2 NSCC 374. The issue of the Originating Summons and the service of same on the appellant outside the jurisdiction without the endorsement, had robbed the trial Court of the requisite jurisdiction since the condition precedent had not been complied with”

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CONTRIBUTIONS TO TRADE UNION -WHETHER THE CONSENT OF A PERSON, ELIGIBLE AS A MEMBER OF A TRADE UNION IS A CONDITION PRECEDENT FOR THE DEDUCTION FROM HIS WAGES AND SALARIES FOR THE PURPOSE OF REMITTING SAME TO THE TRADE UNION

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“It is important to set out the provisions of Section 5(3) and (4) of the Labour Act. It states –
“5(3) Upon the registration and recognition of any of the Trade Unions specified in Part A of Schedule 3 to the Trade Unions Act, the employee shall
(a) Make deductions from the wages of all workers eligible to be members of the Union for the purpose of paying contributions to the Trade Union so required; and
(b) Pay any sum so deducted to the Union.
But a worker may contract out of the system, in writing and when he has done so, no deductions shall be made from his wages in respect of contributions mentioned in paragraph (a) of this section,
(4) No deductions shall be made from the wages and salaries of persons who are eligible members of any of the trade unions specified in Part B of Schedule 3 of the Trade Union Act except if the person concerned has accepted, in writing to make voluntary contributions to the trade union.”
The case of C.A.C Vs. A.U.P.C.T.R.E (Supra) was beautifully written and decided. In it, the President of the trial Court referred to new Section 16A inserted into the Trade Union Act, concerning deduction of moneys from the wages of every worker eligible to be a member, and the payment of same to the registered office of the Trade Union. The President of the trial Court was emphatic that;
“Section 5(4) of the Labour Act was not referred to or repealed…”
Since there is nothing repealing Section 5(4) of the Labour Act, the position is that it is still extant and should be taken into consideration, when dealing with deductions of wages of workers, under the Labour Act. This Section 5(4) of the Labour Act is clear. It states that the consent of a person, eligible as a member of a trade union specified in Part B of Schedule 3 to the Trade Unions Act, is a condition precedent for the deduction from his wages and salaries of any sums for the purpose of remitting same to the trade union. The worker has to agree in writing, before deductions can be made from his wages and salaries. This contrasts with the position of membership, where he is a recognized member but can opt out in writing.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)|Labour Act|Sheriffs and Civil Process Act|Trade Unions Act (Cap T. 14) Laws of the Federation of Nigeria, 2004|

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