Corporate Affairs Commission (cac) v Amalgamated Union Of Public Corporations And Civil Service Technical And Recreational Service Employees (aupctre)

• Judge: Hon. Justice B. B. Kanyip, Phd
• Judgment Date: 27 May 2021
• Respondent: Amalgamated Union Of Public Corporations And Civil Service Technical And Recreational Service Employees (aupctre)
• Appellant: Corporate Affairs Commission (cac)
• Docket Number: NICN/ABJ/45/2021
• Court: National Industrial Court (Nigeria)

INTRODUCTION

1. The claimant took out this action vide an originating summons filed on 10 February 2021. The originating summons is supported by an affidavit with 6 exhibits and a written address. The claimant is asking the Court to determine the following two questions:
(1) Considering the decision of this Honourable Court, presided upon by O. Y. Anuwe J. in Suit No. NICN/ABJ/125/2019 delivered on the 17th December, 2019, whether the defendant can continue to operate and/or parade herself, particularly with the claimant, as a union for senior staff cadre in Federal/States statutory corporations or bodies?
(2) If the answer to the above question is in the negative, whether the defendant can unionize, purport to unionize and/or continue to unionize the senior staff of the claimant?

2. The claimant then prayed for the following reliefs:
(1) A declaration that the defendant cannot continue to operate and/or parade herself, particularly with the claimant, as a union for senior staff cadre in Federal/States statutory corporations or bodies.
(2) A declaration that the defendant cannot unionize, purport to unionize and/or continue to unionize the senior staff of the claimant.
(3) An order of this Honourable Court perpetually restraining the defendant, her officers, agents, servants, privies and/or any other person claiming through them from continuing to parade herself, particularly with the claimant, as a union for senior staff cadre in the claimant’s Commission.
(4) An order of this Honourable Court perpetually restraining the defendant, her officers, agents, servants, privies and/or any other person claiming through them from unionizing, purporting to unionize and/or continuing to unionize the senior staff of the claimant.
(5) Costs of this action.

3. In reaction, the defendant entered appearance and then filed a preliminary objection and a counter-affidavit to the originating summons with a supporting written address. To these, the claimant filed a written address in opposition to the preliminary objection and a reply on points of law in respect of the defendant’s written reaction to the originating summons.

4. Both the preliminary objection and the originating summons were moved on the same day and the Court informed the parties that the ruling on the preliminary objection will be given alongside the decision on the originating summons.

THE CASE OF THE CLAIMANT

5. There is a decision of this Court attached to the affidavit in support of the originating summons as Exhibit A in Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees (AUPCTRE) Suit No. NICN/ABJ/125/2019, the judgment of which was delivered on 17 December 2019 wherein the defendant (AUPCTRE) was declared to be a union for junior staff cadre in Federal/State Government Statutory Corporations and Government owned companies and expressly restrained from unionizing the staff in the senior cadre of such bodies.

6. The claimant in the instant case is of the opinion that it comes within the categorization of Federal/State Government Statutory Corporations and Government owned companies. And so in spite of the decision of 17 December 2019, the defendant has not only been parading itself as a union for senior staff of the claimant but has been unionizing the senior staff, purportedly agitating for the interest of the claimant’s senior staff and threatening to cripple the operations of the claimant with an industrial action in furtherance of her miscomprehension of the judgment of the Court.

7. Furthermore, that the defendant, in furtherance of obvious miscomprehension or willful disobedience of the decision of this Court in the judgment in Exhibit A has gone ahead to write letters and issue notices consisting in Exhibits B - F attached to the affidavit in support of the originating summons. That these notices and letters are to threaten the operation of the claimant with industrial action and hence have the capacity to cripple the operation of the claimant and to embarrass it.

8. As regards the contention of the defendant that it has appealed against the judgment of 17 December 2019 and that the claimant was not a party to the judgment, it is the contention of the claimant that the said judgment is one in rem and in respect of which the claimant or anyone whose interest is affected can take advantage of. The claimant is accordingly calling on this Court to interpret its judgment of 17 December 2019 vis-a-vis the actions of the defendant, determine if the judgment is valid and subsisting, make a declaration on the judgment one way or the other and for the defendant, who has persistently misunderstood or miscomprehended the judgment, to be restrained from actions that tend towards disobedience of the judgment of the Court. That flowing directly from all this are the questions whether miscomprehension and/or disobedience of this Court order or any court order at that could operate to vest any valid right on a party and particularly on the defendant in this case and whether such miscomprehension and/or disobedience should be allowed to be to the detriment of the claimant’s interest.

THE CASE OF THE DEFENDANT

9. In addition to the preliminary objection challenging the jurisdiction of this court to hear and determine this case as constituted, the case of the defendant is that the claimant was not a party in the proceedings which gave rise to the judgment sought to be interpreted. That the defendant who was a party in the said proceedings was dissatisfied with the judgment of this Court, and filed an appeal to the Court of Appeal challenging the decision of the National Industrial Court. That while the appeal is still pending, the claimant who did not apply to be joined as a party to the appeal began to threaten, harass, intimidate and embarrass members of the defendant in the employment of the Corporate Affairs Commission (CAC) through the Registrar General.

10. As a result of the hasty, draconian policies and over attentiveness to pettiness being exhibited by the claimant’s Registrar General, the defendant issued letters to the claimant’s Board Chairman as contained in Exhibits B, C and D attached to the originating summons intimating the Board of these issues of concern and highlight the need to urgently resolve same. That since the claimant was adamant to the defendant’s concern, the defendant issued Exhibit E to the claimant, a 14 days’ notice to embark on industrial action. However, due to the prompt intervention of the Honourable Minister and the Permanent Secretary Ministry of Trade and Investments requesting parties to maintain the status quo and peace, the strike action was not carried through. That the defendant issued another letter, Exhibit F, suspending the intending industrial action. However, the claimant’s Registrar General continued relentlessly to intimidate, harass and suppress members of the defendant and has instituted this matter seeking to rehear Suit No. NICN/ABJ/125/2019 which had long been concluded and parties in that case had proceeded on appeal to the Court of Appeal, Abuja Division in the matter.

THE DEFENDANT’S PRELIMINARY OBJECTION

The Submissions of the Defendant
11. The defendant’s preliminary objection was brought pursuant to Order 47 Rules 23, 24 and 25 of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017) and under the inherent jurisdiction of the Court. The defendant is praying for two orders:
(1) An order striking out and/or dismissing this suit for being incompetent and for lack of jurisdiction.
(2) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

12. The grounds upon which the preliminary objection is brought are:
(1) This Honourable Court lacks the jurisdiction to entertain the originating summons.
(2) The mode of commencing this action is wrong and in violation of the Rules of Court.
(3) By virtue of the Rules of this Honourable Court, application for interpretation of judgment is by motion on notice and not originating summons.
(4) The claimant/respondent was not a party in Suit No. NICN/ABJ/125/2019 and cannot approach this court for interpretation of its decision.
(5) A party can only apply within thirty (30) days to the court to interpret its judgment.
(6) Failure to follow a laid down procedure for doing a thing where a statute has provided for the procedure, renders any act done under that statute null and void.

13. The defendant submitted a lone issue for determination of the preliminary objection i.e. whether this Court has the jurisdiction to entertain this suit. To the defendant, the undisputed fact in this case is that the claimant in the instant case was not a party in the proceedings that led to the judgment sought to be interpreted and which is subject of an appeal pending before the Court of Appeal. That the claimant/respondent not being a party to the suit lacks the locus to institute this action and this Court lacks the vires to entertain it. What is even more is that there is no ambiguity in the judgment sought to be interpreted by the claimant/respondent. That a court cannot be surreptitiously clothed with jurisdiction to exercise appellate authority over its own decision. The claimant wants to employ a short cut to have a bite in a cherry of a suit that this Court had given a final decision on and determined the rights of the parties. That the claimant cannot move this Court under any guise to sit on appeal over its judgment . As such, this Court lacks the jurisdiction to entertain this suit, urging the Court to so hold and protect its integrity. That this is necessary because if this Court makes any finding or declaration that will change the content and character of the judgment while the case is to be heard on appeal before judgment is delivered at the Court of Appeal it will amount to judicial derogation...