Whether Originating Summons Can Be Used To Commence Criminal Proceedings

NURTW, DELTA CHAPTER v. REGD. TRUSTESS OF OTOR-UDU AND OTUJEREMI BLOCK INDUSTRIES ASSOCIATION
CITATION: (2022) LPELR-57409(CA)

In the Court of Appeal
In the Asaba Judicial Division
Holden at Asaba

ON WEDNESDAY, MARCH 23, 2022
Suit No: CA/AS/399/2016

Before Their Lordships:

MOHAMMED AMBI-USI DANJUMA
Justice, Court of Appeal
JOSEPH EYO EKANEM
Justice, Court of Appeal
ABIMBOLA OSARUGUE OBASEKI-ADEJ
Justice, Court of Appeal

Between

NATIONAL UNION OF ROAD TRANSPORT WORKER, DELTA CHAPTER
(FOR THE CHAPTER AND ON BEHALF OF ALL THE STATE GOVERNMENT CENTRAL MOTORPACKS AND PARTICULARLYANIOCHA NORTH, ANIOCHA SOUTH, BOMADI, BURUTU, ETHIOPE EAST, ETHIOPE WEST, IKA NORTH EAST, IKA SOUTH, ISOKO NORTH, ISOKO SOUTH, NDOKWA EAST, NDOKWA WEST, OKPE, OSHIMILI NORTH, OSHIMILI SOUTH, PATANI, SAPELE, UDU, UGHELLI NORTH, UGHELLI SOUTH, UKWANI, UVWIE, WARRI NORTH, WARRI SOUTH AND WARRI SOUTH WEST LOCAL GOVERNMENTS CENTRAL MOTOR PACKS OF THE UNION)

– Appellant(s)

And

REGISTERED TRUSTESS OF OTOR-UDU AND OTUJEREMI BLOCK INDUSTRIES ASSOCIATION
– Respondent(s)

LEADING JUDGMENT DELIVERED BY MOHAMMED AMBI-USI DANJUMA, J.C.A.

FACTS
The trial High Court per, F. N. Azinge, J. in Suit No. OUCH/25/2011 delivered judgment on June 10, 2014 whereat the trial Court held as follows:
“1. An order is hereby made stopping the 26th defendant from collecting or continuing to collect dues/levies or from molesting, harassing or assaulting any driver, drivers, tippers, lorries, dynas pickups) of the claimant’s member industries or any person in Delta State in the delivering of blocks, cement and sand to their customers and buying of sand for the molding of blocks in the industries of the Claimant’s members of any person or persons.

2. The 26th Defendant having contravened Sections 3 and 4 of the Collection of Due in of Delta State (2006) is liable to pay a fine of N50,00.000 (Fifty Thousand Naira only) as prescribed by section 5 of the said law”.

After the judgment, the respondent commenced committal proceedings.
The appellant who was the 26th defendant filed a motion on notice seeking for an order setting aside the judgment entered in the suit on June 10, 2014, an order striking out the suit in its entirety and for an order striking out form 48 issued by the Registry of the High Court on November 12, 2014. The trial Court dismissed the motion on notice. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the following issues thus:
“1. Whether the action at the lower Court is an inter-union dispute over which the lower Court has no jurisdiction to entertain?
2. Whether criminal proceedings can be conducted via an originating summons.
3. Whether the originating processes on the 26th defendant was served.
4. Whether form 48 was validly issued and served in the proceedings leading to the instant appeal.”

APPELLANT’S SUBMISSION
On issue one, the learned counsel for the appellant argued that the trial Court was wrong in holding that it had jurisdiction, when according to the counsel, the dispute between the parties leading to the suit was a trade dispute. He argued that both the respondent and the appellant are Trade Unions.

Counsel submitted that once a dispute involves two separate unions and the subject matter thereof involves how each of the said unions will act in respect of regulating their jobs or trade and the regulation of same, it is a Trade Dispute. He relied on the case of GLOBERSTAR ENGR. CO. LTD v. OMATSEYE & ORS (2008) LPELR 4203 (CA).

Counsel relied on the case of GOODLUCK NANA OPIA V. INEC (2014) 7 NWLR (PT. 1407) 431 AT 436 SC; (2014) LPELR-22185(SC) and submitted that from the reliefs claimed and the affidavit in support of the originating summons, it was evident that it was the National Industrial Court of Nigeria that had jurisdiction to entertain the suit and not the High Court. That the SECTION 254 A – 254 B THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 3RD ALTERATION, ACT 2010 (NO. 3) OF MARCH 4, 2011 confers exclusive jurisdiction in the National Industrial Court of Nigeria in respect of civil cases and matters relating to Trade Disputes. Thus, he argued that the entire proceedings of the Court culminating in the judgment of June 10, 2014 was a nullity.

On issue two, counsel submitted that the 2nd order made by the trial Court against the defendants especially the appellant who was the 26th defendant amount to a criminal conviction. He referred to SECTIONS 3-9 OF THE DELTA STATE COLLECTION OF DUES IN PUBLIC PLACES BY TRANSPORT UNIONS (PROHIBITION) ROAD TRAFFIC LAW CHAPTER CII VOL.1 LAWS OF DELTA STATE, 2006, and stated that the section does not create any civil obligation but a crime to be prosecuted by the State and the Police and not for the respondent to come to Court on the basis of an originating summons and a conviction entered in the manner of the 2nd order when the Court ordered against the appellant. He further submitted that the law is a criminal or penal provision and that the first step towards any criminal proceeding or prosecution is formal charge whether oral or written to which the accused must plead, before the proceedings commences.

He reiterated that it was a criminal prosecution sought and wrongly embarked upon by the originating summons. He submitted that, the entire proceedings was a nullity and a breach of fair hearing which ought to be set aside.

Appellant’s counsel argued issues three and four together and submitted that there was no service of the processes for the phantom criminal prosecution undertaken by the respondent.

RESPONDENT’S SUBMISSION
On issue one, learned counsel for the respondent conceded that the respondent and appellant are Registered Unions, however, that the appellant is a union that does not employ labour, while the respondent is made up of several block industries and is not an employer of labour, either.

He referred to some paragraphs of the affidavit in support of the originating summons and further submitted that the dispute had no industrial colouration, nor is the respondent a worker in the employ of the appellant and vice versa. He relied on SECTION 254C OF

THE 1999 CONSTITUTION.
Respondent’s counsel argued that the action was an individual action by an association who refused the further acts of collection of money by what he termed as “an act of bullying”. Hence, that it was not a trade dispute and the trial Court had jurisdiction to entertain the suit.

Respondent’s counsel on issue two contended that the action was properly commenced by originating summons to interpret the law in question. He submitted that the appellant who had failed, neglected and refused to enter appearance, had judgment delivered against him and yet proceeded to breach the order and hence, the contempt proceedings against recalcitrant members of the appellant was commenced.

On Issues three and 4 four, respondent’s counsel argued that there was the service of the originating summons on the appellant and which was the parent body of all the other Branches cited. That the appellant was also served with the processes inclusive of the committal Form 48. Counsel further submitted that the committal Form 48 was not served by proxy.

RESOLUTION OF ISSUES
On issue one, the Court referred to SECTION 47 OF THE TRADE DISPUTE ACT, (CAP. T.) LFN 2010 wherein trade dispute was defined as any dispute between employers and workers, or between workers and workers which is connected with the employment or the terms of employment and physical condition of work of any person.

The Court explained that the respondent is the Registered Trustees of a conglomeration of several block making industries united in the protection of the interests of their members, whilst the Appellant appear to also be a union or Association suing for itself and in protection of members of the different motor parks listed as members.

That the dispute in the instant case did not involve any of the parties inter se, its member(s) as employers or employee or worker as none of such state of relationship has been claimed by any of the parties. The Court stated that there was no question of terms of employment or physical condition of work of any person raised in the dispute. Hence, the dispute is not a trade dispute.

The Court furthermore, stated that from the affidavit evidence filed along with the originating summons, the dispute between the appellant and respondent does not relate to or is connected with any labour employment, trade union, industrial relations and matters arising from work place, the condition of service, including health safety, welfare of labour, employee worker, matters incidental thereto or connected therewith which is within the exclusive jurisdiction of the National Industrial Court as seen in SECTION 254C OF THE 1999 CONSTITUTION AS AMENDED. See the case of NATIONAL UNION OF ELECTRICITY EMPLOYERS VS. BUREAU OF PUBLIC

ENTERPRISES (2010) ALL FWLR PT. 525 PAGE 210.
The Court held that trial High Court had the jurisdiction to entertain inter-union disputes that did not involve trade dispute or industrial dispute.

On issue two, the Court stated that the provisions of the law prohibiting the collection of dues in public places, targeted at all persons and Transport Unions is a penal provision with penalty stipulated for violators. That for corporate offenders like Associations and Unions which category the appellant belongs, there is the penalty of the sealing of their premises in addition to the sentence of fine of N50,000; that if the offender is an individual, the punishment of N50,000 as an option in fine or to both such fine and imprisonment is explicit in the law.

The Court stated that there was a purported criminal prosecution, conviction and order, when the trial Court held that “26th defendant (the appellant) having contravened Sections 3 and 4 of the Collection of Dues in Delta State Law, 2006, he was liable to pay a fine of N50,000 as prescribed by Section 5 of the said law.”

Premised on this, the Court held that the trial Court had no jurisdiction to take cognizance and for the improper and wrongful means of originating a criminal prosecution, the entirety of the exercise was declared a nullity. The Court then went on to state that the filing of a counter-affidavit does not amount to a plea; just as the filing of an originating summons and affidavit is not a charge of a criminal offence.

The Court then stated that the enforcement of THE DELTA STATE COLLECTION OF DUES IN PUBLIC PLACES BY TRANSPORT UNIONS (PROHIBITION) ROAD TRAFFIC LAW, CAP. C11 VOL.1 LAWS OF DELTA STATE should be undertaken only in the manner and by the authorized persons under the said law, inclusive of the imposition of the penalties therein provided.

On issues three and four, the Court opined that if a criminal prosecution could be embarked upon, there being no compliance with the service of an appropriate criminal charge in law, there was no service on the Appellant of any valid process warranting the trial and judgment entered.

That this is more particularly so in respect of the committal Form 48 which shall only be served personally on the contemnor but in the instant case, the form was served on persons who are said to be members of the appellant.

In response to the argument of the respondent that service was effected on the parent body, the Court stated that such service will not suffice for the purpose of contempt proceedings that is the Form 48.

The Court emphasised that the mode of service of contempt proceedings shall be personal service and not service by proxy, which is invalid.

HELD
The appeal was allowed and the judgment of the High Court was set aside.

APPEARANCES:
IKHIDE EHIGHELUA, ESQ. – For Appellant(s)

J. S. SINI, ESQ. – For Respondent(s)