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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE THEIR LORDSHIP: Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: October 18, 2011 APPEAL NO NIC/LA/21/2010 BETWEEN Anambra State Government - Appellant AND 1. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) 2. Anambra State Water Corporation 3. Anambra State Environmental Protection Agency - Respondents REPRESENTATION: Chibuzo E. Ezenduka and C. A. Elechukwu, for the appellant. Enobong Etteh, with him are Aduojo Abah and Magbeahunike, for the 1st respondent. Mrs. Chiazor Ikokwu, Senior Legal Officer, Anambra State Water Corporation, for the 2nd respondent. The 3rd respondent did not appear, nor was it represented, throughout the hearing of the case. JUDGMENT This is an appeal against the award of the Industrial Arbitration Panel (IAP) on a trade dispute between the 1st respondent, Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE or the Amalgamated Union) as the 1st party and Anambra State Government, Anambra State Water Corporation (ANSWC or the Corporation) and Anambra State Environmental Protection Agency (ANSEPA or the Agency) as the 2nd party at the IAP. The appellant objected to the award as a result of which the Honourable Minster of Labour and Productivity referred the trade dispute to this court for adjudication in line with section 14 of the Trade Disputes Act (TDA) LFN 2004. The referral letter is dated June 11, 2010 with reference number ML.HE/941/CON/1/62. The issues in dispute as stated in the referral letter are – i. Non-payment of 48 months’ salaries and 8 years’ leave allowance to Anambra State Water Corporation Employees (ANSWC). ii. Non-payment of 25 months’ salaries and 8 years’ leave allowance to employees of Anambra State Environmental Protection Agency. From the record of Appeal before the court, the 1st respondent is a trade union which unionizes employees of the 2nd and 3rd respondents. In April 2009, the Amalgamated Union declared a trade dispute against the appellant, the 2nd and 3rd respondents before the Minister of Labour and Productivity who then referred the dispute to the Industrial Arbitration Panel. In June 2009, the IAP directed all the parties to file and exchange their memoranda which they did except the 3rd respondent. That panel was presided over by A. B. Vianana and it sat on the dispute up till November 4, 2009 when parties were informed that the panel has been dissolved and that a new one has been constituted but has not started sitting. Parties were to be served with hearing notices as to the time the new panel would commence sitting. The appellant’s counsel informed the A.B. Vianana panel that the Anambra State Government and the 3rd respondent were making efforts to settle the matter amicably. The appellant’s position is that no hearing date was communicated to the Anambra State Government whereas the 1st and 2nd respondents’ position is that the new panel presided over by Zainab Kuchi fixed the hearing of this dispute for January 12, 2010 and sent hearing notices to all the parties including the appellant. Because the appellant was absent at that sitting, the panel adjourned twice and caused hearing notices to be issued and served on the appellant directly and not through its Counsel. The 1st respondent, in addition to this position, attached to its written address certified true copies of some of the said hearing notices addressed to the appellant and the 1st respondent together with extract of entries in the IAP Register’s book. Subsequently, the new panel presided over by Zainab Kuchi heard the dispute, made its findings and transmitted its decision together with its award to the Honourable Minister of Labour and Productivity in the absence of the appellant. The said award of the IAP is as follows – i. That the 1st of the 2nd party appropriate funds immediately and pay the total net liquidated claim as at December 2009 for workers of ANSWC calculated at N769,174,576.83 (exclusive of tax deduction, check-off deductions and bank charges). ii. That the 1st of the 2nd party appropriate funds immediately to pay the total net liquidated (sic) claim of the workers of ANSEPA for 2009 calculated at N108,752,528,87 (exclusive of tax deductions, check-off deductions and bank charges). iii. That the 1st of the 2nd party appropriate and pay immediately the sum of N4,100,000 check-off dues not remitted to the first party as required under section 17 of the Trade Unions Act, of the partial payments of the N200,000 deduction retarded. iv. That the 3% of basic salary being the check-off dues for all outstanding salaries be made immediately to the first party. v. That the 1st of the 2nd party should immediately appropriate funds without further delay for all these payments in bulk and not piecemeal to ameliorate the pains caused the aggrieved workers as justification of their equitable rights. vi. That these payments should be made less tax deductions (PAYE) on the gross outstanding by the 1st of the 2nd party to respective authorities. vii. That the 1st of the 2nd party should ensure appropriate promotions and salary increments across board to all aggrieved on equitable grounds as entitled in terms of salary for the period in dispute. viii. That the 1st of the 2nd party should not trample on the rights of the 91 dead staff and that all entitlements be allowed to their next of kin or successors in title without further delay. The Tribunal further held that – We further affirm also that a lot of injustices have been carried out. That great pain has been unduly caused and do condemn such actions, but definitely cannot award compensation to families of the aggrieved, because the issue is (sic) out of the premises of our mandate under this trade dispute referred for adjudication. The Arbitrators shall maintain all the foregoing from the 11th of February, 2010 as our decision and final Award. Dissatisfied with the said award, the appellant filed a notice of objection and same was referred to this Court for adjudication. The appellant raised and argued these issues for the determination of this court in this appeal – i. Whether the Industrial Arbitration Panel presided over by Zainab Ibrahim Kuchi was right in law in hearing and making award against the appellant without giving the appellant the opportunity to be heard and thereby contravening section 36 of the Constitution of the Federal Republic of Nigeria 1999 and section 36(i)(d) of the Trade Disputes Act 2004. ii. Whether the Industrial Arbitration Panel made any sustainable finding of facts or in law that Anambra State Government employed or are the employer, or are charged with the responsibility of payment of salary or discipline of the staff of Anambra State Water Corporation. iii. Whether the Industrial Arbitration Panel was right to award to the staff of Anambra State Environmental Protection Agency arrears of salary already paid to them. iv. Whether it was right in law for the 1st respondent to be awarded check-off dues (assuming the appellant, without conceding, was liable) without written evidence of the staff of 2nd and 3rd respondents authorizing them to collect same. On March 16, 2011 Mr. Enobong Etteh, entered appearance and filed written address on behalf of the 1st respondent, Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees, in which he raised and argued the following three issues for the determination of this court – i. Whether the appellant was given fair hearing at the Industrial Arbitration Panel before the Panel transmitted its Award to the Honourable Minister for Labour and Productivity. ii. Whether the Industrial Arbitration Panel was right to hold that workers of Anambra State Water Corporation are employees of Anambra State Government. iii. Whether the Industrial Arbitration Panel was right to award arrears of salary to workers/employees of Anambra State Environmental Protection Agency. On December 13, 2010 Mrs. Ikokwu Chiazor, the Senior Legal Adviser of the Corporation filed memorandum of appearance on behalf of the 2nd respondent and the Corporation’s written address. The two processes have the same date as filed. In its address, the 2nd respondent reacted to two out of the four issues raised in the appellant’s brief of argument. These issues are – 1. The one that bothers on principle of fair hearing. 2. Whether the IAP made a sustainable finding that Anambra State Government is the employer of the employees of Anambra State Water Corporation to whom it owes responsibility for payment of salaries. There was no written address from the 3rd respondent as it did not appear, nor was it represented, throughout the hearing of the matter. The appellant replied on points of law to the written arguments of the 1st and 2nd respondents. On 21st June 2011, parties adopted their written addresses and the matter was adjourned for judgment on 27th July 2011, a date the court could not sit. The court thereafter proceeded on vacation. When the matter came up on 12th October 2011, it was discovered that the court had gone way out of the 3 months constitutionally allowed for judgment to be delivered. This necessitated the re-adoption of the written addresses by counsel in the matter. The re-adoption of the written addresses was done today, the 18th day of October 2011. We have carefully gone through the referral documents, the record of this appeal, the written brief of arguments of all the parties, the documents frontloaded with these arguments and all the cited authorities both statutory and decided ones. To our mind, the critical issue for the determination of this court is whether the appellant was served with the hearing notices of the proceedings that gave rise to the IAP award. All the parties agreed that the appellant was absent at the sitting of the 2nd panel of the IAP presided over by Zainab Ibrahim Kuchi. The question now is, was the appellant aware of the sittings of this panel? The 1st and 2nd respondents answered in the affirmative. The 1st respondent went further to show copies of hearing notices issued and served on the appellant to that effect as annexure and argued that these services were done by PTL Courier Services Ltd. To the 1st respondent, Annexures A1 and A3 are relevant here. They are hearing notices addressed directly to the appellant and not its counsel. On perusing these annexures, we found that there is a dispatched stamp on them and that the dispatch is indicated in the extract from the IAP register in Annexure 4. However, there is nothing to show that they were received. There is no proof of delivery from the courier company that supposedly delivered the hearing notices to the appellant. In Isaac Nlewedim v. Kalu Uduma [1995] 6 NWLR (Pt. 402) 388 the Supreme Court held inter alia that where there is an allegation that a document was sent to a person and that person denies receiving such document, proof of the receipt by that person can be established by evidence of dispatch by registered post. Such evidence is not before the court. We, therefore, hold that the appellant was not aware of the sittings of the Panel presided over by Zainab Ibrahim Kuchi as the appellant was not served with hearing notices to that effect. To this extent all arguments of the 1st and 2nd respondents on service of hearing notices on the appellant go to no issue, which means that what the IAP did is a nullity ab initio. For this reason, and on the authority of section 8(b) of the National Industrial Court Act 2006, we hereby order a rehearing of this matter by the IAP. The matter is accordingly remitted back to the IAP for rehearing by a Panel different from the one that heard this matter. Judgment is entered accordingly. We make no order as to cost. ______________________ Hon. Justice B.B. Kanyip Presiding Judge _________________________ ___________________________ Hon. Justice F. I. Kola-Olalere Hon. Justice J. T. Agbadu-Fishim Judge Judge