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KALANGO v. DOKUBO

KALANGO VS DOKUBO (CA)

1.  O. D. KALANGO

2.  BOB NWANEKWU

3.  SAKA ALAO

4.  SULE GBADEGESIMA

5.  SAMUEL KALANGO

6.  GUZO OSUJI

7.  CHIJIOKE OBIALOR

Vs.

1.  ROMEO DOKUBO

2.  HOPE PEDRO

3.  THOMPSON FIBERESIMA

4.  FRANCIS OBA

5.  ISOBEYE PETER

6.  KARIBO AMACHREE

7.  TAJU RASHIDI

8.  EMMANUEL BAQUAYE

9.  CHRISTOPHER CHUKWU

10.  IDASO HARIYE

11.  PATRICK EKONG

12.  EBIKEBINA OGOIN

In the Court Of Appeal [Port Harcourt Division]

4th November 2002 [2003] 15 WRN 32 CA/PH/130/2001

Before their Lordships:
JAMES OGENYI OGEBE, JCA. (Presided and Dissented)

MICHAEL EYARUOMA AKPIROROH, JCA.

ABOYI JOHN IKONGBEH, JCA. (Delivered the leading judgment)

APPEAL � Grounds of appeal � issues for determination � need to arise from the judgment appealed against.

COURT � High Court of Rivers State � whether has jurisdiction to hear this claim.

COURT � National Industrial Court � jurisdiction of � how ascertained � relevant provisions � need to examine all relevant provisions setting up a court to ascertain its jurisdiction.

COURT � National Industrial Court � jurisdiction of � scope of � whether the jurisdiction of regular courts are ousted in matters relating to any inter or intra-union dispute that is not a trade dispute as defined in section 47(1) of Decree No. 47 of 1992.

COURT �

National Industrial Court

� jurisdiction of � scope of � whether every dispute within a trade union is taken away from the jurisdiction of courts other than the

National Industrial Court

.

JURISDICTION � Jurisdiction of

National Industrial Court

� how ascertained � relevant provisions � need to examine all relevant provisions setting up a court to ascertain its jurisdiction.

JURISDICTION � Jurisdiction of National Industrial Court � whether every dispute within a trade union is taken away from the jurisdiction of courts other than the National Industrial Court.

JURISDICTION � Jurisdiction of National Industrial Court � scope of � whether the jurisdiction of regular courts are ousted in matters relating to any inter or intra-union dispute that is not a trade dispute as defined in section 47(1) of Decree No. 47 of 1992.

LABOUR LAW � "Trade union cases" � "cases involving trade unions" � distinction between.

LABOUR LAW � Inter union and intra union disputes � distinction between.

LABOUR LAW � Trade disputes within the provisions of Trade Disputes (Amendment) Decree No. 47 of 1992 � whether the dispute between the parties in this case comes under same.

PRACTICE AND PROCEDURE � Appeal � grounds of appeal � issue for determination � need to arise from the judgment appealed against.

STATUTES � Trade Disputes Act, 1990 (as amended) � sections 1a and 24 � purport of whether relevant to this case.

ABOYI JOHN IKONGBEH, JCA. (Delivered the following judgment):  This is an appeal from the ruling of the Rivers State High Court (F.N.N. Ichoku, C.J.), sitting at Port Harcourt, whereIn the Court held that it had jurisdiction to entertain the plaintiffs/respondents� action against the present seven appellants and seven other persons, as defendants. The plaintiffs/respondents� claims against the fourteen defendants, as endorsed on the writ of summons, were for �

"1.������� A declaration that the refusal of the 1st to 7th defendants, as executive officers of the union, to cause a conduct of a general election for the election of executive officers of the union, the defendants having been in office for more than the 4 years duration stipulated in the constitution of the National Union of Road Transport Workers, is wrongful and ultra vires the constitution of the N.U.R.T.W.

2.�������� A declaration that the defendants are not competent persons to manage the affairs of N.U.R.T.W., Port Harcourt Township Bus Branch, having mismanaged and conducted the affairs of the branch union in a manner adverse to the interest of the union.

3.�������� A declaration that the 8th to 14th defendants who are contesting leadership of the union with the 1st to 7th defendants are incompetent to handle or manage the affairs of the union having at various times since 1987 worked in one capacity or the other with the 1st to 7th defendants and also contributed to the adverse situation of the union.

4.�������� An order of the court compelling the 1st defendant and other co-defendants herein who were members of the executive council to render accounts of all monies of the Port Harcourt Township Bus Branch of the N.U.R.T.W. appropriated by the defendants from November, 1987 till December, 1999.

5.�������� An order of perpetual injunction restraining the defendants either by themselves, agents, privies or whomsoever on their behalf from controlling, managing, directing or howsoever interfering with the affairs of the union or parading themselves as the executive officers of the union except so mandated through a proper processing of election in the manner as contained in the constitution and rules/regulations of N.U.R.T.W." (Italics mine)

Only the 1st � 7th defendants entered appearance to the writ. Only the seven of them caused a motion to be filed praying for an order striking out the suit "for want of jurisdiction by virtue of Decree No. 47 of 1992 (Trade Disputes Amendment Decree)."

The learned trial Chief Judge heard arguments from counsel for the parties and, in a ruling he delivered on 07/03/01, dismissed the application, holding that his court has jurisdiction to entertain the action. Although Chief A.O. Mogboh SAN, who filed the notice of appeal, purported to have done so on behalf of all 14 defendants, only the first seven defendants have really appealed against the ruling. The other seven defendants, i.e. the defendants/respondents herein, were represented In the Court below not by Chief Mogboh but by a different counsel. Moreover, they filed an affidavit, sworn to by the 8th defendant/respondent, In the Court below in stiff opposition to their co-defendants� application to strike out the suit against the 14 of them. They vigorously contested the application through counsel at the hearing. They fully supported the plaintiffs/respondent�s contention that the latter�s claims had not been taken out of the jurisdiction of the High Court by Decree 47 of 1992. It is very unlikely, therefore, that they had instructed Chief Mogboh to appeal on their behalf against the ruling. Indeed the learned Senior Advocate made this clear in the appellants� brief where he labeled the first 7 defendants "defendants/appellants" and the 8th � 14th simply as "defendants".

The appellants have appealed on the following single ground:

"The learned trial Judge erred in law in holding that he had jurisdiction to hear the case.

Particulars:

The action before the court relates to intra or inter union dispute and not just a dispute between members." (Italics mine)

Chief Mogboh, SAN who settled the appellants� brief of argument, has formulated only one issue on behalf of the appellants, namely �

"Whether the High Court properly interpreted the phrase �inter or intra union dispute� under section 2 of the Trade Disputes (Amendment) Decree No. 47 of 1992 and was right in assuming jurisdiction to determine the matter."

Mr. I.A. Adedipe, for the respondents, formulated the following one:

"Whether the Rivers State High Court has jurisdiction to determine the suit of the respondents notwithstanding the provisions of the Trade Dispute (Amendment) Decree No. 47 of 1992."

I quite agree with both counsel that the ultimate question to be decided in this appeal is whether or not the learned Chief Judge was right in his decision that he has jurisdiction to entertain the plaintiffs/respondents� suit. However, I agree with Mr. Adedipe�s observation in the respondents� brief of argument that the question raised in the first part of the issue for determination as formulated on behalf of the appellants is inadequate in the circumstances. While I agree with the learned Senior Advocate that this appeal calls for the interpretation of section 1A of the Trade Disputes Act, Cap. 432, Laws of the Federation, 1990, I must observe that he is slightly, but very critically, out of focus. He has shifted focus from the eye of the storm, so to speak, and is operating in the periphery of it. As I will endeavour to show in due time, the real issue in this appeal is whether or not, upon its true and proper construction, section 1A, with particular reference to the phrase "a trade dispute or any inter or intra union dispute", appearing therein, has introduced a second category of disputes, in addition to trade disputes, in respect of which access to courts other than the National Industrial Court has been denied to prospective plaintiffs. The issue as formulated on behalf of the defendants/appellants and the ground from which it has been distilled are not designed to address that crucial question, but a question that really does not arise. They have been framed as if the question in hand were whether or not the learned Chief Judge had interpreted only the phrase "any inter or intra union dispute" rather than the entire phrase "a trade dispute or any inter or intra union dispute".

As we shall see, however, the task before the Chief Judge was not the interpretation of only the phrase "any inter or intra union dispute". What he was asked to interpret, and what he did interpret, was the entire phrase "a trade dispute or any inter or intra union dispute". The controversy presented before him by the parties demanded more than is being urged on behalf of the appellants before us. He interpreted what the parties asked him to interpret.

As the law stands today the appellants cannot legitimately complain on appeal that the Chief Judge wrongly interpreted what nobody had asked him to interpret and what he had not interpreted. Their complaint can only be directed at the way he did what they had asked him to do, and which he did, and they can only request us to determine whether or not he did that thing correctly. The only prayer that they can legitimately seek from us in the circumstances is, in my view, to say whether or not the Chief Judge had correctly interpreted the phrase "a trade dispute or any inter or intra union dispute" not just a part of that phrase. The interpretation of only a part may not necessarily yield the same result as the interpretation of the entire phrase.

The law is very clear on this. In Babalola Ors, v. the State (1989) 4 NWLR (Pt. 115) 264, the 1st appellant, who was one of the accused persons at the trial, had as one of his grounds for complaint before the Supreme Court the fact that he did not know that the bank draft in respect of which he was convicted of forgery had in fact been forged. This was not part of his defence at the trial, so naturally, the trial court made no decision on it. In answer to this complaint, Oputa, JSC. said at pages 294 � 295:

"Now as to the issue of whether or not the 1st appellant knew that the draft, exhibit D1 was forged, it is necessary here to note that it was never part of the defence of the 1st appellant that he did not know that the Arab Bank, exhibit D1 was forged� Whether or not the 1st appellant knew that the bank, exhibit D1 was forged was never an issue before the trial court. That being so, there was no decision on whether or not the 1st appellant knew that D1 was forged. An appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party� Learned counsel for the appellants should be well advised to know that they can only urge on appeal, points arising from a decision of the trial court on an issue submitted to it for determination. If no such question had been submitted, it cannot form the basis of a ground of appeal or an issue for determination in a brief. (Italics supplied).

In Uor v. Loko (1988) 2 NWLR (Pt. 77) 430 at 441, Karibi-Whyte, JSC pronounced it as the law that �

"� any judgment of an appellate court founded on grounds not canvassed In the Court below and not adverted to and pronounced upon in the judgment appealed against ideally is not an appeal against that judgment. Since an appellant�s right of appeal is circumscribed within the parameters of the judgment appealed against, this court will not lightly permit impugning the judgment on grounds of error other than are contained therein. (Italics supplied)

The observations of Ayoola, JSC. in Oba v. Egberongbe (1999) 8 NWLR (Pt. 615) 485 at 489 are also most relevant here:

"It is clear from the ground of appeal and the issues formulated, purportedly therefrom, that the appellant had completely ignored the reason given by the court below for refusing the application� The ground of appeal and the issues formulated by the appellant are unrelated to that reason. Grounds of appeal and, consequently, issues formulated therefrom must arise from the judgment. In the case of Saraki & Ors. v. Kotoye (1992) 9 NWLR (Pt. 264) 156; (1992) 3 NSCC 331 this court (per Karibi-Whyte, JSC.) at page 345 said, and it bears repetition, that:

�It is a well-established proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.

In the present case, the ground of appeal and the issues formulated therefrom being unrelated to the ground or reason of the decision are incompetent."

See also F.M.B. (Nig.) Ltd. v. N.D.I.C. (1999) 2 NWLR (Pt. 591) 333, at 359 � 360, per Ogundare, JSC.

Arguing the appeal on the sole issue, Chief Mogboh drew attention to the five reliefs sought by the plaintiffs/respondents. He then submitted that they involve an intra-union dispute, in that �

"a dispute has arisen between members of the National Union of Road Transport Workers as to who will be their executive officers� It is obvious that members of the trade union have divided into rival factions in the same union� These are � disputes amongst members of the same union. These disputes are inter or intra union disputes."

Learned senior counsel also drew attention to the fact that Cap. 432, was amended by section 2 of Decree 47 of 1992, by the addition of a new section, namely, section 1A. He agreed with the learned Chief Judge on the latter�s interpretation of this new section, where the latter expressed the view that "the words �any other inter or intra union dispute� cannot be interpreted to mean each and every kind of dispute inter- or intra union as this would lead to an absurdity�" He however disagreed with the analogy drawn by the Chief Judge to illustrate his point. According to the learned Chief Judge, the absurdity he alluded to would arise "where members of a union have a disagreement such as bordering on assault, defamation or breach of trust or contract are in fact such issues because they are disputes between members of a union." Counsel complained that the Chief Judge should have directed his mind to the reliefs claimed, which, according to him, "show that there was an intra union dispute or a dispute within the union." The dispute, senior counsel further pointed out, arose from the organization and running of a trade union. Counsel was of the view that section 1A(1) of Cap. 432 is clear and unambiguous and "prohibits the commencement of any suit the cause of action of which arises from any inter or intra union disputes, in a court of law," (Emphasis on any supplied by counsel)). It was his contention, therefore, that people with claims similar to the plaintiffs/respondents� should take it to the National Industrial Court, "which is enjoined to entertain a claim of this nature." Counsel also drew attention to section 24 of Cap. 432, which, according to him, throws more light on the meaning of the term "inter- union disputes." Citing the decision of this court in Daniel v. Fadugba (1998) 13 NWLR (Pt. 582) 482, he submitted that the plaintiffs/respondents� suit "which contest (sic) the validity of the position of the officers of the union and called for an election is an intra-union dispute arising from the organization and running of a trade union as laid down in the constitution of the union." In support of this proposition he cited, during oral argument before us, the recent decision of this court in N.U.R.T.W. v. R.T.E.A.N. (2001) 14 NWLR (Pt. 733) at 313. Finally, citing Udoh & Ors. v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139, senior counsel submitted that the learned

Chief Judge was in error to have assumed jurisdiction, "as the suit is one called in question or disputing the validity of the continued stay in office of members of a trade union, the handling of the union�s account and the conduct of affairs of the union, and the running or organization of the trade union as provided in the constitution of the union."

Mr. Adedipe, for the respondents, in answer, drew attention to section 20 of Cap. 432, which confers jurisdiction on the National Industrial Court, established under section 19, and observed that the court is a court of strictly limited jurisdiction. Learned counsel also drew attention to the view of Oputa, JSC in Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria (No. 2) (1987) 1 NWLR (Pt. 49) 284; (1987) 2 S.C 11, at 44, that "the jurisdiction of the National Industrial Court did not include jurisdiction to make declarations and to order injunctions" of the kind sought here. He then referred to section 47(1) of Cap. 432 where the term "trade dispute" is defined and submitted that it is not every dispute involving members of a trade union that qualifies as a trade dispute within the meaning of that term in the Act. It was his contention that the appellants have given too wide an interpretation to the word "dispute". Overall, he submitted that the learned Chief Judge was right in his decision.

I must start by observing that Chief Mogboh, SAN was on solid ground when he submitted that what existed between the plaintiffs/respondents and the defendants/ appellants was an intra-union dispute. In ordinary parlance, any difference of opinion or conflict of claims is a dispute. Such dispute is an intra-union dispute if it is between members of a union on the one hand and the union itself on the other, or if it is between or among the members of the same union inter se. On the other hand, it is an inter-union dispute if it is between one union and/or members thereof and another union and/or its members. From the reliefs sought by the plaintiffs/respondents it is clear that there was a serious conflict of opinion or claims between the parties as to whether or not the continued stay in office by defendants/appellants as members of the executive of the N.U.R.T.W., after the expiration of the 4-year period prescribed by their constitution, was right. There was also a misunderstanding between them as to whether the appellants should be made to render account of the union�s monies they had handled during the specified period. These conflicts and misunderstandings, being among members of one union, I agree with the learned Senior Advocate of Nigeria, and, of course, the learned Chief Judge, that what was brought before the court by the plaintiffs/respondents was an intra-union dispute.

From this point on, however, senior counsel lost me and I have found it progressively more difficult to follow or identify with his arguments. If I follow him correctly, he seems to be saying that because the dispute between the parties is an intra-union dispute and the union, of which they are members, is a trade union, the plaintiffs/respondents are automatically denied access to a State High Court by operation of the provisions of section 1A of Cap. 432 introduced into the Act by Decree 47 of 1992. In other words, it seems to me to be his view that once a trade union or members thereof gets/get involved in a dispute, only the National Industrial Court can settle such dispute, irrespective of the nature of the dispute. It appears clearly to be his view that all that is required to oust the jurisdiction of courts other than the National Industrial Court is that the intended court action is one involving trade unions. This much can be gathered from senior counsel�s explanation on page 2 of the appellants� brief that the objection to jurisdiction is on the ground that the dispute between the parties "was an intra union dispute which by virtue of section 2 of the Trade Disputes (Amendment) Decree No. 47 of 1992 can only be entertained by the National Industrial Court." It is discernible also from his observation on page 5 of the appellants� brief that �

"The mischief aimed at by the amendment of the Trade Disputes Act is to avoid proliferation of cases involving Trade Unions in the High Courts and ensure that such cases are brought and dealt with in the National Industrial Court only." (Italics supplied)

With all due respect to the learned Senior Advocate, this is an unduly expansive view of the amendment. No doubt, learned senior counsel, when he expressed this view, had in mind the statement by Karibi-Whyte, JSC. In Udoh�s case, (supra) which he cited and relied on. That, however, was not what the learned Justice of the Supreme Court said. What he said page 149 B � C was that �

"� the mischief aimed at by this amendment is to avoid the proliferation of trade union cases in several High Courts and ensure their litigation in the National Industrial Court only." (Italics supplied).

There is, with respect, a world of difference, within the context of Cap. 432, between "trade union cases" and "cases involving trade union", especially having regard to the specialized definition of the term "trade dispute" as prescribed in the Act and the jurisdiction and powers conferred on the National Industrial Court, by the Act. When we later come to examine these matters we will see that the expression used by Karibi-Whyte, JSC is synonymous with "trade dispute" whereas "cases involving trade unions" is a term at large, which would rope in far more matters than is envisaged by the Act.

The learned Senior Advocate has argued as if it is the fact of being an inter-or intra-union dispute that puts a dispute beyond the jurisdiction of courts other than the National Industrial Court. With respect, nothing could be farther from the true position. The truth of the matter, as I see it, is that what gives character to a dispute for the purpose of determining whether the High Court or the National Industrial Court has jurisdiction over it under the Act is not whether or not the dispute is an inter- or intra-union dispute. What gives such character is whether or not the dispute can be described as a trade dispute as defined in the Act.

Furthermore, senior counsel�s view that any and every dispute within a trade union is taken away from the jurisdiction of courts other than the National Industrial Court is inconsistent and hard to reconcile with his earlier stand. As we saw before, he was in complete agreement with the learned Chief Judge�s view that not every inter- or intra-union dispute comes within the purview of the Act. If, as he himself has acknowledged, not every inter- or intra-union dispute comes within the term "trade dispute or inter- or intra-union dispute", how can he in another breath insist that section 1A(1) of Cap. 432 "prohibits the commencement of any suit the cause of action of which arises from any inter- or intra-union disputes in a court of law". Such line of argument is with all due respect, a classic case of approbating and reprobating.

Another flaw that I see, with respect, in learned senior counsel�s argument is that he did not take into account all the relevant provisions of the Act. As we have seen, he referred to only sections 1A(1) and 24, the latter of which, as I will endeavour to show, is irrelevant to the issue in hand. Mr. Adedipe, on the other hand, referred to sections 19, 20 and 47, in addition to section 1A.

With all due respect to the learned Senior Advocate, I do not see how anyone can come to any meaningful conclusion on whether or not a particular case is within the jurisdiction of the National Industrial Court without first examining all the relevant provisions of the statute setting it up to see the nature and scope of its jurisdiction and powers and whether or not the matter brought forward falls within or without those powers. As Oputa, JSC., observed in Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 at 527:

"The jurisdiction of any court is granted aliunde � from without and not from within. Courts are creatures of statutes and it is the statute � creating the court that determines and defines its jurisdiction."

The learned Justice of the Supreme Court suggested some steps to take when the issue arises whether or not a court or tribunal has jurisdiction to hear a given matter. He said, at the same page:

"The first step is to look at the jurisdiction conferred by statute on the � court. The second step is to look at the claims before that court. The third and final step is to examine the claims against the jurisdiction to find out whether those claims fall within or without the jurisdiction of the � court." (Italics mine).

Obaseki, JSC., had this to say in his own judgment at page 520:

"� Courts � are creatures of statutes � Those statutes spell out the jurisdiction the various grades of � Courts are to exercise � So, when the issue of jurisdiction was raised in the trial court, the President and members of the court should have turned to the relevant section of the � Law � and see whether the claim set out � falls within the jurisdiction prescribed." (Italics supplied).

Learned senior counsel should have considered all the relevant provisions first, as Mr. Adedipe did. He however did not. He just started and stopped with the second step suggested by the learned Justices of the Supreme Court and did not bother with the first and third. Had he followed the simple procedure through from first to last I have no doubt whatsoever that he would have seen that there is no merit in his conclusion that the plaintiffs/respondents� claims come within the class of cases with respect to which section 1A(1) ousted the jurisdiction of courts other than the National Industrial Court.

Now, what are the relevant sections that the learned Senior Advocate should have considered? There is the original section 1(1) and (2). There is, of course, the new section 1A, added by Decree 47 of 1992. There are also sections 19, 20 and 47.

Since it was the new section 1A that started this controversy it is appropriate to start from there. Subsections (1) and (2) are the only relevant ones for our purposes. Subsection (3) merely prescribes a punishment for contravention of the provisions of subsection (1). Subsections (1) and (2) provide:

"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." (Italics mine).

The first noteworthy fact is that this section is not a jurisdiction-conferring section. It does not confer jurisdiction on any court or tribunal. Subsection (1) merely bars persons with complaints arising from "a trade dispute or any inter or intra union dispute" from approaching any court of law with them and took life away from pending cases arising from such complaints. Subsection (2) nullified decisions made in such cases by courts, other than the National Industrial Court, prior to the commencement of the Act.

Even if one could infer that the section conferred jurisdiction on the National Industrial Court the matter does not end there. The real issue arises when one tries to ascertain exactly what is meant by the words in section 1A(1) and (2) that I have highlighted by italics, namely, the phrase "a trade dispute or any inter- or intra-union dispute", which undoubtedly are the keywords. The crucial question is, has the word "or" been used disjunctively to separate the two phrases "a trade dispute" and "any inter- or intra-union dispute", thus setting out two categories of disputes with respect to which access to any court other than the National Industrial Court is barred, or conjunctively, thus taking the two phrases together as relating to only one category of disputes?

This was the real issue that was fiercely contested before the learned Chief Judge and upon which he based his decision that his court has jurisdiction. Before him counsel for the plaintiffs/respondents contended that only one category of disputes was envisaged by Cap. 432, namely, trade disputes, and that this position has not been altered by the enactment of section 1A. The position has remained the same after the enactment of that section as it had been before the enactment. That is that any dispute, whether inter- or intra-union, that is not a trade dispute, as defined in section 47(1), is within the jurisdiction of the High Court where it had always been.

For the defendants/applicants, who are the appellants before us, on the other hand, it was contended that the promulgation of Decree 47 of 1992 changed things. It was the contention on their behalf that the Decree added a second category to what obtained hitherto. The view was that prior to Decree 47 only trade disputes were withdrawn from the jurisdiction of courts other than the National Industrial Court by the Act. The Decree, however, added another category of disputes, namely, any other inter- or intra union dispute, to the list of matters withdrawn. It was the further contention of the defendants/appellants� counsel that the view of Oputa, JSC in the Western Steel Works case, supra, that the jurisdiction of the National Industrial Court was so limited that it did not include the jurisdiction to make declarations and order injunctions, ceased to represent the law after the Decree, which expanded the jurisdiction of that court to cover powers over the new category as well as the old.

The learned Chief Judge rejected the defendants/appellants� contentions outright, holding that interpreting the new provision the way their counsel had urged would result in avoidable absurdity. At pages 49 �53 of the record he dealt with the problem thus:

"� it was still submitted that Decree 47 of 1992 added two categories of disputes which were not in the Principal Act� It has added other disputes between two unions i.e. inter union or within the members of same union."

There is no doubt that the issue here now borders on the interpretation of statute namely the interpretation of section 2(1A)(1) of the Trade Dispute (Amendment) Decree No. 47 of 1992.

�It is as stated than (read the?) contention that the 1992 Decree 47 added two categories of dispute which are not in the Principal Act. That it has added other disputes between two unions i.e. inter union or within members of the same union.

What then will be the interpretation of �Any Trade Dispute� or any �Inter or Intra Union Dispute.�

There is no doubt that the clause cannot be interpreted in isolation of the other provisions of the Principal Act, 1990 and the Amendment Decree of 1992. It is clear that the entire provisions of the Principal Act and the Amendment Decree are on Trade Dispute including both explanatory notes and the definition section. No other kind of dispute was defined or provided for in both legislations. Thus, Any Trade Dispute or any Inter or Intra Union Dispute� must of necessity be interpreted as relating to the class of matters or dispute which are either part or parcel of a trade dispute or are incidental to trade dispute.

It seems to me therefore that these words do not create any new category or heads of claims which are nowhere defined in both the Principal Act and Amendment Decree � The very essence of both legislations is trade dispute over which the National Industrial Court is empowered to intervene and make such award binding on employers and workers to whom it relates.

Based on this premises (sic) for one to stretch the words Trade Dispute or any inter or intra union disputes to include as it is being urged by applicants, all disputes involving members of a union is to say the least an invitation to do serious violence to the spirit and intendment of the Principal Act, 1990 and Amendment Decree 1992 which is to make provisions for settling trade disputes.

In the light of the � state of the law it would no doubt amount to interpolations in interpretation should the court begin to open a new category of disputes not in any way even remotely connected to trade disputes and to categorise such new categories as falling under the Trade Dispute Act as that is not the purpose, import or intendment of these legislations.

I am still to be persuaded to agree that the words �any other inter or intra-union �dispute� in the context mean what the applicants are urging the court to accept. The words �any other intra- or inter-union disputes� cannot be interpreted to mean each and every kind of dispute intra- or inter-union as this would lead to an absurdity as where members of a union have disagreement such as bordering on assault, defamation or breach of trust or contract are infact such issues because there are disputes between members of a union. Are such dispute such that should be referred to the National Industrial Court. I think not that such are the cases contemplated by the Act to be referred to the National Industrial Court.

It is clear that the intention of the legislator in both the Principal Act and Amendment Decree are very clear, it is to forestall avalanche of cases bordering on Trade Dispute in all its ramification over which the National Industrial Court is a specialized court set up specifically for such disputes from inundating the High Courts and to allow the National Industrial Court the power to intervene wherever such a dispute bordering on Trade Dispute is referred to it and to make award that is binding on the employers and workers to whom it relates." (Italics supplied).

Before us learned senior counsel, for the appellants, has not pressed the same view as was pressed on the learned Chief Judge, namely, that the second leg of the phrase under consideration constitutes a second category of disputes separate from trade disputes. With respect, I must observe that senior counsel has not looked at the problem as fully as the learned Chief Judge had done. Counsel has argued as if the issue contested before the Chief Judge had related to the interpretation of only the phrase "any inter- or intra-union disputes". He is asking us in effect to treat the subsection as if the words "trade dispute or" did not count for the purposes of our inquiry and that the only words to be considered were "any inter- or intra-union disputes". Although he set out part of section 1A(1), which clearly talked of "a trade dispute or any inter- or intra-union dispute", he proceeded to contend that the provision prohibited the commencement of any suit the cause of action of which arises from "any inter or intra-union disputes". He said nothing whatsoever about "a trade dispute or".

In short, he has clearly not addressed the real issue canvassed before, and decided by, the Chief Judge. Whereas the real issue, as has been seen, was whether or not Decree 47 has expanded the jurisdiction of the National Industrial Court to cover another category of disputes in addition to what was on the ground, the learned Senior Advocate, even though that issue had been resolved against his client, simply ignored the Chief Judge�s ruling and proceeded on the assumption that the Decree has effected such expansion. Consequently he has merely asked us to examine the plaintiffs/respondents� claims and determine whether or not they come within the new category of disputes assumed by him and, on the basis of that, to hold that the Chief Judge was wrong in assuming jurisdiction.

Senior counsel�s assumption can be seen in the way he has framed the ground of appeal, which I set out earlier in full, and the issue for determination formulated therefrom. The particulars to the ground explained that "The action before the court relates to intra- or inter-union disputes and not just a dispute between members" and made no reference whatsoever to "trade dispute". Similarly, in the issue he formulated the learned Senior Advocate raised the question whether or not the learned Chief Judge "properly interpreted the phrase �inter- or intra-union disputes�".

Learned counsel has not bothered to explain the difference between "intra- or inter-union dispute" and "just a dispute between members". I personally see no difference between the two phrases. As we saw before, and as learned senior counsel acknowledged, any dispute between or among members of a union is an intra-union dispute and an inter-union dispute if it is a dispute between two unions or their members. Once you have talked about an "intra-union disputes" you cannot again begin to talk of "just a dispute between members" as a different class of dispute. Both clearly mean one and the same thing.

It is for all the reasons that I have given that I do not think that the decision of this court in Daniel v. Fadugba, (supra) is of assistance to us in the present appeal. Although the facts of that case are similar to the facts of the appeal in hand, the issues canvassed and decided upon in that case are quite different from the issue with which we are confronted here. The trial Judge in that case was not called upon to decide whether or not Decree 432 had introduced a new category of disputes into the Principal Act. The way the two issues, distilled from the single ground! In that case, were formulated shows clearly that everybody concerned proceeded on the assumption that the Decree dealt with more than one category of disputes. The question they sought an answer to was, therefore, whether or not the second category, namely, "any inter- or intra-union dispute" had the same meaning as the first category, namely, "trade dispute". As we have seen, howsoever, that is not the issue with which we are here concerned. We are here to determine whether or not the learned Chief Judge was right in what he decided, which was whether or not there is a second category of disputes at all.

It is for the same reasons that I do not think that N.U.R.T.W. v. R.T.E.A.N., (supra) assists the appellants before us.

Having myself read the entire Act carefully, I have no doubt at all that the learned Chief Judge correctly identified the keywords in section 1A(1) and that he placed the correct interpretation on them, having regard to the context in which they have been used throughout the Act. Admittedly, standing on its own, section 1A(1) would appear to convey the impression that the prohibition against commencing actions in courts other than the National Industrial Court is in relation to two categories of cases. It appears to relate, first, to those arising from trade disputes and, secondly, to those arising from any other type of inter- or intra-union dispute that cannot be described as "a trade dispute" as defined in the Act. The use of the word, "or" in separating "trade dispute" from the words "any inter- or intra-union disputes" is eloquent in the conveyance of this impression. However, although, ordinarily, as Uwais, CJN observed in Onakoya v. F.R.N. (2002) 49 WRN 1; (2001) 11 NWLR (Pt. 776) 595 at 647, the word "or" is, by virtue of section 18(3) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 to be construed disjunctively and not as implying a similarity, the rule in that subsection is not immutably set. Section 1 of the same Act lends support to this view. The context in which the word is used may dictate otherwise, and in such case, the court may read the word conjunctively as implying a similarity, notwithstanding section 18(3).

The Supreme Court has stressed this point in a number of cases. In Nasr & Anor v. Bouari (1962) NMLR 38, Lewis, JSC delivering the judgment of the court, said at page 42,

"In our view section 18(3) of the Interpretation Act 1964 is governed by section 1 of that Act which reads �

�1.������� This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.�

The effect of section 18(3) of the Interpretation Act 1964 is that there is a presumption that the use of the word "or" means that the following words are not to be construed as similar to the proceeding words, so that the onus is on the person seeking to say that they are similar to show that the contrary intention, as provided for in section 1 of the Interpretation Act 1964, applies. The important thing, however, is to discover the intention of the legislature, reading the section as a whole."

Similarly in Bronik Motors Ltd. & Anor v. Wema Bank Ltd. (1983) 6 S.C 158; (1983) NSCC 226 at page 236 Nnamani, JSC in the lead judgment, expressed the view that �

"taken in this context and having regard to section 1 of the Interpretation Act 1964 the words "or" and "other" in section 7(1)(b)(iii) of the Act would appear to imply similarity and ought not to be construed disjunctively."

On reading the subsections within the context of the entire Act and in the light of other relevant provisions of the Act, however, one would see that the subsection has not provided for two different situations but only one, i.e. one covering only trade disputes and matters ancillary or incidental thereto. In other words, any inter- or intra-union disputes that is not a trade dispute within the meaning of that term in section 47(1) of Cap. 432 is not taken out of the reach of courts other than the National Industrial Court.

In adopting this approach of reading the subsections together with other relevant provisions of the Act the reader should be guided by the observations of Agbaje, JSC in Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323 at 324, that �

"� it is a cardinal rule of construction that in seeking to interpret a particular section of a statute or a subsidiary legislation one does not take the section in isolation but one approaches the question of its interpretation on the footing that the section is a part of a greater whole. In Canada Sugar Refining Co. Ltd. v. R. (1898) A.C 735 it was said by Lord Davey at page 741 that every clause of the statute had to be construed with reference to the context and other clauses of the Act so as, as far as possible, to make a consistent enactment of the whole statute."

See also P.D.P. v. I.N.E.C. (2001) 1 WRN 1; (2000) FWLR (Pt. 31) 2735 at 2781 � 2781, per Uwais, CJN.

First, it will be observed, in a study of the Act as a whole, that part I, under which section 1A is contained, is concerned with the procedure for settling only trade disputes, not inter- or intra-union disputes of any other description that may arise that is not a trade dispute within the meaning assigned that term in the Act. Section 1 makes this abundantly clear by providing in subsection (1) that the provisions of the part are to apply "where a trade dispute exists or is apprehended". A corollary from this is, of course, that where no trade dispute exists or is apprehended, or where what exists or is apprehended is not a trade dispute, then the provisions of that part of the Act will not apply. Furthermore, all reference in the other sections in the part that follow is to "trade dispute" or simply "the dispute", which is defined in subsection (2) as "the trade dispute in question."

It will be observed also that the jurisdiction and powers conferred on the National Industrial Court are limited to the settlement of trade disputes and matters ancillary or incidental thereto and nothing more. In this regard see sections 19(1) and 20(1) and (2), as amended by Decree 47 of 1992. Section 19(1) provides as follows:

"19.(1)� There shall be a National Industrial Court for Nigeria (in this part of the Act referred to as �the court�) which shall have such jurisdiction and powers as are conferred on it by this or any other Act with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected therewith." (Italics supplied).

Now, the following facts stand out clearly from the provisions of subsection (1) The jurisdiction and powers that this court can have and exercise are only such as this or any other Act may confer on it. (2) The jurisdiction and powers that this or any other Act may confer on it can only be "with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected therewith." They cannot legitimately be with respect to any other matter. Thus, section 19, like section 1A, does not actually confer jurisdiction. It merely gives direction as to where the jurisdiction may be found and as to the nature and extent of it. The lawmaker clearly intended by these provisions that the court should be one of strictly limited jurisdiction; just for the specialized task contemplated, namely, the resolution of trade disputes and mattes ancillary or incidental thereto. I must, therefore, agree with Mr. Adedipe�s submission to that effect. One legal truth that follows from all this is that any attempt in this or any other Act, without an amendment to this subsection, to confer jurisdiction and powers on the court with respect to any matter other than those specified here would be ultra vires. It goes without saying also that if the court itself attempts to exercise jurisdiction or powers with respect to any matter other than those specified herein it would be acting without, or in excess of, jurisdiction.

I am not aware of any other Act yet that has conferred any jurisdiction and powers on the court. This Act, i.e. Cap. 432, has, however, clearly and faithfully manifested, in section 20(1) and (2), the intention of the lawmaker of making the court one of truly limited jurisdiction. The subsections provide:

"20. (1) The court shall, to the exclusion of any other court, have jurisdiction �

����������� (a)������� to make awards for the purpose of settling trade disputes, and

����������� (b)������� to determine questions as to the interpretation of

����������� (i)�������� any collective agreement

����������� (ii)������� any award made by an arbitration tribunal or by the court under part I of this Act.

����������� (iii)������� The terms of settlement of any trade dispute as recorded in any memorandum under section 7 of this Act.

(2)������� The court shall determine any trade dispute referred to it not later than thirty working days from the day it begins to consider such trade dispute." (Italics mine).

The message could not have been clearer. The court is to have jurisdiction to do only two things, namely, (1) to make awards and this, only for the specified purpose, and (2) to determine questions as to the interpretation of the three types of documents specified. Anything else, which is not ancillary or incidental to the specified items, would clearly be in excess of its jurisdiction.

Oputa, JSC observed in Oloba v. Akereja, (supra) at 527 that �

"the rule is that nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly stated. As far as a superior court is concerned the reverse is the case. Nothing shall be intended to be out of the jurisdiction of a superior court but that which specifically appears to be so."

The National Industrial Court, though not one of those specified in section 6(5)(a)-(i) of the 1999 Constitution as the only superior courts of record, is, nevertheless, not an inferior court. It became a superior court of record by virtue of an amendment to section 19 by Decree 47 of 1992. In my view, however, it still comes squarely within the observation of the learned Justice of the Supreme Court, since it is clearly a court of limited jurisdiction. Nothing could possibly be intended to be within the jurisdiction of a court of limited jurisdiction but that which is expressly stated to be within it by the statute setting up the court. So, when the question arises whether or not it can entertain a given matter, the nature and scope of its jurisdiction and powers must be examined to see whether or not they extend to the matter in question. See Tukur v. Gov., of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 541 � 542 per Obaseki, JSC., Bronik Motors v. Wema Bank Ltd. (1983) 6 S.C 158; (1983) 14 NSCC 226 at 252 � 256 at 252 � 256, per Bello, JSC (as he then was).

Considering the nature and scope of the jurisdiction and powers of the National Industrial Court as clearly spelt out in the Act, I am of the firm view that, even with the promulgation of section 1A of the Act, the court still lacks the competence to make declarations and order injunction of the type sought by the plaintiffs/respondents in the instant case. It can only make awards and determine questions as to the interpretation of the three types of documents specified. All other things that are neither ancillary nor incidental to the specified jurisdiction and powers would be clearly outside its jurisdiction and powers. In the circumstances, I think the view of Oputa, JSC in the Western Steel Works case, referred to earlier, is still as valid today as it was when the learned Justices of the Supreme Court expressed it in February 1987 and still represents the law.

I think the learned Senior Advocate, for the appellants, came to the wrong conclusion because he did not measure the plaintiffs/respondents� claims against the jurisdiction and powers of the National Industrial Court as defined and confined in the Act. As I observed earlier on, he made no reference at all to either section 19, 20 or 47. Section 1A that he referred to, as has been seen does not really confer jurisdiction on any court. It only ousts the jurisdiction of certain courts. One cannot, therefore, have recourse to it when seeking to ascertain the nature and scope of the jurisdiction of the National Industrial Court or any other court. The other section that he referred to, namely, section 24, as I said, and will demonstrate by and by, is irrelevant for our purposes here.

When we come to examine the definition of the term "trade dispute" we will see that matters relating to the administration and running of the affairs of a trade union are not necessarily trade dispute matters. Any inter- or intra-union disputes, including one that arises from administration and running of the union, that does not fit the definition of "trade dispute" as specified in section 47(1) or the related matters specified in section 20(1)(b) is, notwithstanding its being an inter- or intra-union dispute, clearly outside the jurisdiction of that court.

Now then, if this is accepted, what would be the effect of saying, as the learned Senior Advocate seems to be doing, that section 1A of the Act is intended to oust, and has in fact ousted, the jurisdiction of the regular courts in matters arising from trade disputes as well as other inter- or intra-union disputes, which cannot be described as trade dispute as defined? Clearly, such a stance would be tantamount to saying that it was the intention of the lawmaker, by the provisions of section 1(A), to remove the resolution of the latter class of disputes from the jurisdiction of all tribunals, whether the regular courts or the National Industrial Court. As has been observed, judging by the scope of the jurisdiction and powers of the National Industrial Court, any inter- or intra-union dispute that does not fit the definition of "trade dispute" is outside the jurisdiction and powers of the court. To say, therefore, that that class of dispute is also outside the jurisdiction of the regular court is, in effect, to say that such disputes are to go unresolved. Neither the National Industrial Court nor the regular court has jurisdiction. Question: So, who does?

There is no doubt that the lawgiver, if he feels so inclined, can make such an unreasonable provision. But the intention to do so must, in my view, be clearly manifested.

Can it be said, having regard to the other provisions of the Act, that it was the manifest intention of the Federal Military Government, by enacting section 1A, to remove the resolution of inter- or intra-union disputes that are not trade disputes from the jurisdiction of all tribunals? In other words, can it be said that the Federal Military Government intended by the provisions in question, to leave all such disputes unresolved?

I have no hesitation in answering in the negative. Though not part of the Act, but still providing some guide to the interpretation of the Act, especially in the event of any doubt, the long title of the Act and the heading of part 1, and, indeed, the general tenor of the Act clearly indicate that the Act has not set out to provide for the non-resolution of disputes of any kind but the resolution of disputes of a certain class by a specified tribunal. As Karibi-Whyte, JSC., observed in Udoh�s case, at 443 � 444 �

"� the mischief aimed at by this amendment is to avoid the proliferation of trade union cases in several High Courts and ensure their litigation in the National Industrial Court only."

Bearing all these points in mind, I think we should refrain from interpreting section 1A in such a way as would defeat the manifest aim of ensuring that no dispute is left unresolved. We should interpret it, as Karibi-Whyte, JSC., did in Udoh�s case, (supra) as providing that the jurisdiction of courts other than the National Industrial Court is ousted only in relation to trade disputes and ancillary or incidental matters, whether such trade disputes are inter- or intra-union. Any inter- or intra-union dispute that is not a trade dispute as defined in section 47(1), and, therefore, outside the jurisdiction of the National Industrial Court, is to be resolved by the tribunal that traditionally did so under the Constitution prior to the enactment of sections 20 and 1A of the Act. Traditionally the High Court had unlimited jurisdiction to resolve all disputes between persons, except those disputes expressly excluded by the constitution. Inter- or intra-union disputes were not among those excluded. Therefore, all such of them as are not trade disputes or matters related thereto, in my view, remain within the jurisdiction of the High Court.

As we saw at the beginning of this judgment, the plaintiffs/respondents went before the Rivers State High Court to challenge the propriety of the continued stay in office of the defendants/appellants.

They sought a declaration that such continued stay, after the expiration of four years, contrary to their constitution, which stipulated that number of years, was wrongful. They wanted an order of perpetual injunction to restrain them from continuing in what they claimed was a wrongful occupation of the offices of the union. They also wanted the court to force them to render account of the union�s monies that had come into their hands during the specified period.

Now, do any of these complaints by the plaintiffs/respondents raise any issue relating to trade dispute or matters ancillary or incidental thereto? It becomes pertinent at this juncture to see what is meant by "trade dispute" under the Act. This is where section 47(1) comes in. "Trade dispute" is defined therein as �

"any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment or conditions of work of any person." (Italics supplied)

Going by this definition, it is clear to me that it not, as the learned Chief Judge rightly pointed out, every kind of inter- or intra-union dispute that is a trade dispute. For a dispute to qualify as such, it must �

(a)������� be a dispute

����������� (i)�������� between an employer and his workers, or

����������� (ii)������� between his workers inter se, and, most importantly,

(b)������� be connect with �

����������� (i)�������� the employment or non-employment of any person, or

����������� (ii)������� the terms of employment, or

����������� (iii)������� conditions of work of that person.

There is no doubt, as we have seen, that there was a dispute between the parties who, as the name of their union indicates, are road transport workers. That is why it has not been difficult to agree with the appellants that the dispute between the plaintiffs/respondents and them was an intra-union dispute. It was a dispute between two groups of road transport workers within the national union of road transport workers.

From the definition that we have just seen, however, it is not enough merely that the disputants are workers and that they have a dispute between or among them. The dispute that brought them to court must be connected with their employment or non-employment, or the terms of employment or conditions of work before it can qualify as a trade dispute.

The crucial question, therefore, is whether the dispute between the parties to this appeal can be said to be connected with the employment or non-employment of the disputants or any of them, or with their terms of employment or conditions of work. As I understand the term "connected with" as used in the context with which we are here concerned, it implies that the dispute has a bearing on employment or non-employment of the workers or the terms of their employment or their conditions of work. If the only link is the mere fact that the persons involved in the dispute are workers, then their dispute does not qualify as a trade dispute. The dispute must have emanated from matters relating to the way they have been employed or how they are being used for the job they have been employed to do.

Now, as we have seen the main complaint of the plaintiffs/respondents against the defendants/appellants were (1) that the latter were in breach of the constitution of the union by wrongfully remaining in office after the expiration of their term and they sought a declaration to that effect, and (2) that they had not given proper account of the union�s monies in their hands and they sought orders to force them to do so.

With all due respect to the appellants, I do not see what bearing any of these complaints and the reliefs sought in regard to them has on the employment or non-employment of any of the parties or the terms of their employment or conditions of work. None of the plaintiffs/respondents has complained that any of the defendants/appellants has in any way interfered with the nature and terms of his employment or his conditions of work. Had any of the complaints been that the defendants/appellants were forcing the plaintiffs/respondents to do things outside the scope of things normally done by road transport workers, then, clearly, that would have involved a dispute connected with their employment or non-employment. Similarly, if they had complained of being prevented from functioning as road transport workers the result would have been the same. Again, had they complained that the defendants/appellants were trying to dictate to them how they were to negotiate with or relate to their employers or customers, i.e. the passengers, then that might be a dispute in connection with the terms of their employment. Finally, had any of the complaints been that the defendants improperly altered their conditions of work by, say, making them work longer hours for less pay, the dispute would have qualified as being connected with their conditions of work.

A disagreement among members of a union about the tenure of office of members of the executive of the union can, in my respectful view, have nothing to do with the employment or non-employment, or the terms of employment of the members of the union or their conditions of work. The members are not employed to run the union. They are employed, as has been seen, to do other things, namely, to provide road transport services. Running the affairs of the union is not necessitated by the nature of their employment or conditions of work. It is an optional undertaking, which need not and should not concern the terms of employment and conditions of work or road transport workers. Whoever goes into union politics to run for an office unquestionably does so on his own spare time. The employer does not expect or require him to get involved in union politics in the course of his employment. In other words, the nature or terms of his employment does not require it. Indeed, the employer has the right to, and very probably would, take objection should such involvement in union politics interfere with the performance of his duties. Therefore, if he gets embroiled in a dispute with other union politicians over whether or not some of them were wrongfully occupying union offices, such dispute certainly cannot be said to be connected with his employment or the terms thereof, or the conditions of his work. The disagreement relating to the wrongful occupation of the offices clearly, therefore, does not come within the definition of "trade dispute", and is, therefore, not one of the matters the prosecution in any court other than the National Industrial Court under section 1A of Cap. 432 of which has been prohibited by section 1A.

Finally, the learned Senior Advocate made reference to section 24 of the Act, which, according to him, will throw more light on the meaning of "inter union disputes". The section provides:

"24.����� A right of appeal shall lie to the court from the awards of the Industrial Arbitration Panel which shall be exercisable in the case of intra-union disputes arising from the organization and running of a trade union as laid down in the union constitution or inter-union trade disputes arising from the restructuring of trade unions established under the Trade Unions Act."

With respect, I do not see the relevance of this section to the issue at hand. The section merely confers a right of appeal from the award of the Industrial Arbitration Panel to the court. It does not deal with the original jurisdiction conferred on the National Industrial Court in sections 19 and 20, which are clear and unambiguous. The original jurisdiction is limited to the settlement of trade disputes and incidental matters. I do not think it is legitimate to use any oblique cross-reference to section 24 to include in the jurisdiction of the National Industrial Court matters that are clearly outside those specified in sections 19 and 20. It is not permitted in law to use such oblique cross-reference to defeat the clear and unambiguous words of sections 19(1) and 20. The fact that the National Industrial Court is given powers to hear appeals from the Industrial Arbitration Panel in matters arising, before that panel not the court, from disputes connected with "the organization and running of a trade union as laid down in the union constitution or inter-union trade disputes arising from the restructuring of trade unions established under the Trade Unions Act," cannot be used to extend the expressly specified original jurisdiction of the court. Section 24 deals with an entirely different matter from that covered by sections 19 and

20. Moreover, as I have pointed out, we are not here concerned with ascertaining the meaning of the phrase "inter-union dispute". We already know the meaning. We have seen that it means a dispute between one union and/or its members and another union and/or its members. Nor are we out to ascertain the meaning of "intra-union dispute" since we already know that it is a dispute within a union.

The result of all that I have been saying is that this appeal is totally lacking in merit. Since the dispute between the parties is not a trade dispute or a matter ancillary or incidental thereto within the contemplation of the Act, and since the reliefs that the plaintiffs/respondents are seeking in relation to them are not within the competence of the National Industrial Court to grant, I agree with Ichoku, C.J., and the plaintiffs/ respondents, that his court, and not the National Industrial Court, has jurisdiction to hear their suit.

I accordingly dismiss the appeal and affirm the decision of Ichoku, C.J., that his court has jurisdiction to hear the plaintiffs/respondents� suit. The defendants/appellants shall pay costs of N5,000.00 to the plaintiffs/respondents.

JAMES OGENYI OGEBE, JCA. (Dissenting):  The respondents filed an action against the appellants in the Rivers State High Court, Port Harcourt seeking the following declaration:

"1.������� A declaration that the refusal of the 1st to 7th defendants, as executive officers of the union, to cause a conduct of general election for the election of executive officers of the union, the defendants having been in office for more than the 4 years duration stipulated in the constitution of the National Union of Road Transport Workers, is wrongful and ultra vires the constitution of the N.U.R.T.W.

2.�������� A declaration that the defendants are not competent persons to manage the affairs of N.U.R.T.W., Port Harcourt Township Bus Branch, having mismanaged and conducted the affairs of the branch union in a manner adverse to the interest of the union.

3.�������� A declaration that the 8th to 14th defendants who are contesting leadership of the union with the 1st to 7th defendants are incompetent to handle or manage the affairs of the union having at various times since 1987 worked in one capacity or the other with the 1st to 7th defendants and also contributed to the adverse situation of the union.

4.�������� An order of the court compelling the 1st defendant and other co-defendants herein who were members of the executive council to render accounts of all monies of the Port Harcourt Township Bus Branch of the N.U.R.T.W.

����������� appropriated by the defendants from November, 1987 till December, 1999.

5.�������� An order of perpetual injunction restraining the defendants either by themselves, agents, privies or whomsoever on their behalf from controlling, managing, directing or howsoever interfering with the affairs of the union or parading themselves as the executive officers of the union except so mandated through a proper processing of election in the manner as contained in the constitution and rules/regulations of N.U.R.T.W."

After the writ was served the 1st to 7th defendants now appellants before this court, they raised by motion on notice a preliminary objection challenging the jurisdiction of the court to entertain the matter on the ground that it was an intra-union dispute which by virtue of section 2 of the Trade Disputes (Amendment) Decree No. 47 of 1992 can only be entertained by the National Industrial Court. The learned trial Chief Judge on the 7th of March, 2001 dismissed the application and held that he had jurisdiction to entertain the matter.

Dissatisfied with that ruling, the appellants appealed to this court and in accordance with the rules of court the learned Senior Advocate Chief A.O. Mogboh filed a brief on their behalf and formulated one issue for determination as follows:

"Whether the High Court properly interpreted the phrase "inter or intra union dispute" under section 2 of the Trade Dispute (Amendment) Decree No. 47 of 1992 and was right in assuming jurisdiction to determine the matter."

The respondents also filed a brief of argument and identified one issue for determination as follows:

"Whether the Rivers State High Court has jurisdiction to determine the suit of the respondents notwithstanding the provisions of the Trade Disputes (Amendment) Decree No. 47 of 1992."

The learned Senior Advocate for the appellants submitted that from the nature of the claim before the lower court the respondents are demanding a general election for the election of the executive officers of the union since the appellants were alleged to have been in office for more than 4 years as stipulated in their constitution. The respondents were further seeking mandatory injunction restraining the appellants from controlling, managing, directing or howsoever interfering with the affairs of the union except if they were mandated after an election conducted in a manner as contained in the constitution of the union. In the view of the learned senior counsel, members of the union were divided into rival factions and were seeking various declarations and injunctions against each other. The claim was therefore that of an intra union dispute. He referred to section 2 of Decree No. 47 of 1992 which amended Trade Disputes Act Cap. 432 of the Laws of the Federation of Nigeria 1990 by inserting a new section 1A(1) which reads:

"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."

The learned senior counsel submitted that the trial Judge was wrong in holding that the claim before him did not amount to intra union dispute. The main argument of the learned Senior Advocate for the appellants is that the High Court did not properly interpret the phrase "inter or intra-union disputes" having regard to the reliefs claimed by the respondents against the background of the Trade Disputes Act as amended by section 2 of Decree No. 47 of 1992. He relied heavily on the cases of National Union of Road Transport Workers, Federal Capital Territory, Abuja v. Road Transport Employers Association of Nigeria, Federal Capital Territory, Abuja & 7 Ors. (2001) 14 NWLR (Pt. 733) 313.

The learned counsel for the respondents submitted in support of his brief that the trial Chief Judge was right in holding that he had jurisdiction to entertain the matter which was not a trade dispute as defined by section 47(1) of the Principal Act as follows:

"trade dispute means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person."

The learned counsel submitted that it is not every dispute involving members of a trade union that will qualify as a trade dispute within the meaning of the Act and the phrase "intra union dispute" must be interpreted to mean dispute connected with or pertaining to the trade of the union. He relied on the case of Jammal Steel Structures Limited v. African Continental Bank Limited (1973) NSCC 619; (1973) 1 All NLR (Pt. 2) 208. The learned counsel submitted that if the argument by the appellants concerning the amendment is correct then as at the date the action was filed that amendment was already void for reason of inconsistency with the provisions of 1979 Constitution having regard to sections 6(6)(b) and 272(1) thereof which confer wide jurisdiction on the State High Court.

With the greatest respect to the learned counsel for the respondents this issue of whether or not the amendment of the Trade Disputes Act is constitutional was not raised In the Court below and it is being raised here for the first time not by an appellant but by the respondents who did not cross-appeal. This is clearly a fresh point that cannot be raised in this court without leave. I shall therefore ignore the argument completely.

A court is competent to hear a matter when the following conditions are satisfied:

(a)������� It is properly constituted with respect to the number and qualification of its members;

(b)������� The subject matter of the action is within its jurisdiction;

(c)������� The action is initiated by due process of law; and

(d)������� Any condition precedent to the exercise of its jurisdiction has been fulfilled.

See the case of Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR 587 at page 583.

It is trite law that it is the plaintiff�s writ of claim that determines the jurisdiction of the court. The claims of the respondents against the appellants have been set out in full in this judgment. It is certainly a debate, an argument or a dispute within the National Union of Road Transport Workers itself as the respondents are questioning the legitimacy of the appellants continuing in office without calling for election as provided for in the union�s constitution.

The Trade Disputes Act was amended by Trade Disputes (Amendment) Decree No. 47 of 1992 by the insertion of a new section 1A(1) which reads:

"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."

The provision removes the jurisdiction in an action the subject matter of a trade dispute or intra- or inter-union dispute from the regular courts to the National Industrial Court. Matters that

Section 7(1) of the Principal Act define trade disputes as follows:

"trade dispute means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person."

It does not define inter or intra union dispute. The learned trial Chief Judge dismissed the preliminary objection solely on the ground that the claim before him was not a trade dispute as defined by the Principal Act. He was wrong in lumping intra union dispute with trade dispute. If the makers of the law had intended that intra union dispute means the same thing as trade dispute they would have said so in clear terms. In my humble view intra union dispute may be an argument or disagreement between members of a trade union as regards the management or running of the union.

Physical fight between members of the union could not be an intra union dispute, but certainly any dispute which has to do with the running of the union or the interpretation of the constitution of the union would amount to intra union dispute. I am reinforced in this view by the case of the National Union of Road Transport Workers, Federal Capital Territory, Abuja v. Road Transport Employers Association of Nigeria, Federal Capital Territory, Abuja & 7 Ors. (2001) 14 NWLR (Pt. 733) 313 at page 327 where my learned brother, Muntaka-Coomassie, JCA expressed an opinion as follows:

"Having considered the claim of the appellant at the trial court the arguments and submissions of both counsel I hold this:

(a)������� That the claim of the appellants is for a declaration that the respondents is not a registered trade union and as such cannot carry on trade union activities in FCT, Abuja and a perpetual injunction� A trade dispute is any inter or intra union disputes. Inter, being a Latin phrase is among or between, while intra is within.

That being the case, any inter or intra union dispute is a trade dispute and as such triable only by the National Industrial Court.

Now the claim of the plaintiff as contained in the writ of summons and filed at the trial court, is for a declaration that the respondents is not a registered trade union and as such cannot carry on trade union activities in FCT, Abuja and a perpetual injunction restraining the respondents from operating as a transport union in any motor park in FCT, Abuja �.

Having considered these claims of the plaintiff/appellant one is left with no doubt that these claims fall squarely and clearly on matters that can safely be construed as inter union dispute. In other words, dispute involving or among two unions. No other court in Nigeria, apart from the National Industrial Court can entertain such claims."

It is therefore my view that the claim of the respondents as endorsed in the writ of summons before the lower court is clearly an intra union dispute which is not within the jurisdiction of the Rivers State High Court. Consequently, I allow this appeal and set aside the ruling of the trial court giving itself jurisdiction. In its place I uphold the appellants preliminary objection and strike out the claim before the lower court for want of jurisdiction. The appellants are entitled to costs of N5,000.00 against the respondents.

MICHAEL EYARUOMA AKPIROROH, JCA:  I have read in draft the lead judgment of my learned brother Ikongbeh, JCA. just delivered.

The claims of the respondents are set out in the lead judgment, so also the issues formulated by counsel for the parties and as such, I do not intend to repeat them here, rather I will dwell on the life and vital issue which I consider for the resolution of this appeal.

It is my view that the resolution of this appeal hinges on the correct interpretation of section 1A(1) and sub-section 2 of the Trade Dispute Amendment Decree No. 47 of 1992 which provide as follows:

"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 the Act, in respect of any trade dispute, inter- or intra-union dispute prior to the commencement of this section shall cease to have effect."

Section 47(1) of the Principal Act provides as follows:

"Trade dispute means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person."

A Trade Dispute is therefore any inter- or intra-union disputes. Inter being a Latin phrase is among or between, while intra is within.

It is an inter union dispute if the dispute is between one trade union and/or members thereof and another trade union and/or members thereof. Not every such intra union dispute is necessarily a trade dispute as defined by the Act. But every trade dispute is necessarily an inter union dispute if it is between one trade union and its members. The provisions of section 1A(1) and sub-section 2 of the Trade Dispute Amendment Decree No. 47 of 1992 which I reproduced are therefore in my mind not applicable to the respondents to oust the jurisdiction of the Rivers State High Court. See the leading judgment of National Union of Road Transport Workers v. Aba Road Transport, Multi Purpose Cooperative Society Ltd. & Ors. delivered by me in appeal No. CA/PH/178/95 on 10th December 2001.

It was the contention of learned senior counsel for the appellant in his brief of argument that the learned trial Judge did not properly interpret the phrase "inter" or "intra" union dispute having regards to the reliefs claimed by the respondents and against the background of Trade Disputes Act Cap. 432, Laws of the Federation of Nigeria 1990 as amended by section 2 of Decree No. 47 of 1992.

With respect to senior counsel, the learned trial Judge passionately and properly interpreted the phrase "inter" or "intra" union dispute. At pages 12 and 13 of the records of proceedings, the learned trial Judge said:

"What then will be the interpretation of "any trade dispute" or "any inter or intra union dispute".

There is no doubt that the clause cannot be interpreted in isolation of the other provisions of the Principal Act, 1990 and the Amendment Decree of 1992. It is clear that the entire provisions of the Principal Act and the Amendment Decree are on trade dispute including both explanatory notes and the definition section no other kind of dispute was defined or provided in for both legislation. Thus "Any Trade Dispute or any inter or intra union dispute" must of necessity be interpreted as relating to the class of matters or disputes which are either part or parcel of a trade dispute or are incidental to trade dispute. It seems to me therefore that these words do not create any new category of heads of claims which are nowhere defined in both the Principal Act and Amendment Decree. See section 3(2) the very essence of both legislations is trade dispute over which the National Industrial Court is empowered to intervene and make such award binding on employers and workers to whom it relates.

Based on this premises for one to stretch the words trade dispute or any inter or intra union disputes to include as it is being urged by applicants, all disputes involving members of a union is to say the least an invitation to do serious violence to the spirit and intendment of the Principal Act, 1990 and Amendment Decree 1992 which is to make provisions for settling trade disputes."

In conclusion, the appeal is lacking in merits and I accordingly dismiss it and affirm the judgment of the court below that this court has jurisdiction to hear the respondents� case. The case is to be remitted to Rivers State High Court for assignment by the Chief Judge. The appellants shall pay the respondents N5,000.00 costs.

Counsel:

A. O. Mogboh, SAN with him, J.K.U. Enyinda, Esq. for the appellants.

I.A. Adedipe, Esq., for the respondents.

Cases referred to in the judgment:

Babalola v. State (1989) 4 NWLR (Pt. 115) 264.

Bronik Motors v. Wema Bank Ltd. (1983) 6 S.C 158; (1983) 14 NSCC 226.

Canada Sugar Refining Co. Ltd. v. R. (1898) A.C 735.

Daniel v. Fadugba (1998) 13 NWLR (Pt. 582) 482.

F.M.B.(Nig.) Ltd. v. N.D.I.C. (1999) 2 NWLR (Pt. 591) 333.

Jammal Steel Structures Limited v. A.C.B. Ltd. (1973) NSCC 619; (1973) 1 All NLR (Pt. 2) 208.

Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR 587.

N.U.R.T.W. v. R.T.E.A.N. (2001) 14 NWLR (Pt. 733) 313.

Nasr v. Bouari (1962) NMLR 38.

Oba v. Egberongbe (1999) 8 NWLR (Pt. 615) 485.

Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.

Onakoya v. F.R.N. (2002) 49 WRN 1.

Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323.

P.D.P. v. I.N.E.C. (2001) 1 WRN 1; (2000) FWLR (Pt. 31) 2735.

Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; (1992) 3 NSCC 331.

Tukur v. Gov., Gongola State (1989) 4 NWLR (Pt. 117) 517.

Udoh v. O.H.M.B. (1993) 7 NWLR (Pt. 304) 139.

Uor v. Loko (1988) 2 NWLR (Pt. 77) 430.

Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (No. 2) (1987) 1 NWLR (Pt. 49) 284; (1987) 2 S.C 11.

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria, 1979 Ss. 6(6)(b) & 272(1).

Constitution of the Federal Republic of Nigeria, 1999 s. 6(5) (a) � (i).

Interpretation Act, Cap. 192, Laws of the Federation of Nigeria 1990 Ss. 1 & 18 (3).

Principal Act Ss. 7 & 47.

Trade Disputes (Amendment) Decree No. 47 1992 s. 2.

Trade Disputes Act, Cap. 432, Laws of the Federation of Nigeria 1990 Ss. 1(a), 19, 20, 24 & 47.