THE legal team of the Comrade Lateef Oyelekan leadership of the National Union of Food, Beverage and Tobacco Employees (NUFBTE) on Wednesday failed to gel at the Federal Court of Appeal as its three interlocutory appeals were turned down and denied hearing for lack of proper service to respondent aggrieved members numbering 30.
The three interlocutory appeals filed by Comrade Oyelekan and 15 other National officers of NUFBTE through their counsel were scheduled for hearing before the Lagos Division of the Court of Appeal on Wednesday, 20th January, 2021 with the first motion which sought the leave of the court to appeal against and interlocutory injunction (or ruling) of the National Industrial Court (NIC) on 19th August, 2020.
The said ruling restrained the appellants and the union from holding an emergency delegates conference which was scheduled for 20th August, 2020.
But despite the ruling, the Oyelekan leadership went ahead to conduct the emergency conference between midnight and 3am of 20th to 21st August, 2020. The conference, attended by Comrade Ayuba Wabba, NLC President, but shunned by appropriate officers of the Ministry of Labour and Employment, particularly the Director of Trade Union Services and Registrar of Trade Unions, was marred by a violent free-for-all.
The appellants also had two other motions for stay of proceedings to restrain the NIC from hearing the originating summons in less than two weeks’ time, on the 3rd of February 2021, turned down.
Appearing on behalf of Oyelekan and 15 other appellants is Ambassador Sola Iji, Esq., who sought the Appeal Court’s leave to move the motion for appeal in appeal No. CA/LAG/CV/972/2020.
However, Kunle Afolabi, Esq., counsel to the 1st to 30th respondents objected to the hearing on ground that his clients were not served with the motion being sought to be moved.
The court, while agreeing with Afolabi Esq, also observed that there is no evidence of service of the motion on 32nd respondent, the Registrar of Trade Unions, before the court.
Afolabi’s objections to the hearing of the motion for stay of proceedings in the other two appeals on ground that his clients were only served after close of work on Monday, 18th January 2020, and as a result not ripe for hearing as he has the right to respond, was also upheld by the three-person Panel of Justices of the Court of Appeal.
The court subsequently adjourned the three appeals to 29th September 2021 for hearing of the said motions filed by the appellants.
Flashback
It will be recalled that the aggrieved members of the Food Union on Thursday, November 26, 2020, secured their first victory at the Lagos Division of the NIC when presiding judge, the Honourable Justice (Dr) E. A. Orji, ruled that appeal or even an application for stay does not automatically constitute stay of proceedings.
Justice Orji, who stated that the court had taken notice of the affidavit filed by the claimants and the press briefing by Comrade Oyelekan that the union had held an emergency conference despite the order of the court as well as several letters of suspension and expulsion issued to the claimants; held that the court will go ahead to hear the originating summons.
At the November sitting, Justice Orji also expressed dismay for the expulsion of the aggrieved members on the ground that they were alleged to have formed a parallel leadership of the union. She said the alleged infringements by the claimants should have at best been brought to the notice of the court and not for the defendants to resort to what she called “self-help” by taking the law into their hands.
Prior to the ruling, both parties had, on the invitation of Justice Orji, addressed the court on whether the court can proceed to hear the main originating summons notwithstanding that the defendants have interlocutory appeals as well as whether the defendants had taken steps which were prejudicial to the case particularly in suspending and expelling the claimants from the union while the suit pends before the court because of their action to institute the suit.
Mr Jelili Owonikoko, a Senior Advocate of Nigeria (SAN), who led five other counsel had argued that the court cannot proceed because appeal had been entered in the matter and that proceedings must be stayed (stopped) pending the determination of the appeal.
Mr Owonikoko (SAN) further argued that the court can only adjourn from time to time until the determination of the appeal. He informed the court that the claimants had formed a parallel leadership and that despite the suit before the NIC, they had taken the matter to the Public Petitions Committee of the National Assembly. He said as a result of these actions, many of the claimants were first suspended and later expelled.
However, Mr Olakunle Afolabi (Esq.), counsel to the claimants, had in his counter argument, submitted that the jurisdiction of the NIC is sui generis, that is, an appeal cannot be entered without seeking for the court’s leave to do so, and that in accordance with section 47 of the National Industrial Court of Nigeria (NICN) Act 2006, an appeal does not automatically constitute stay of proceedings in matters at the NIC.
Olakunle (Esq.) further argued that section 9 of the NICN Act stipulates that proceedings of NIC can be halted by an appeal only when it concerns breach of fundamental rights. Apart from the provisions of the NICN Act, Olakunle stated that by Order 64 of the NIC Rules, appeal does not automatically constitute stay of proceedings.
Submitting further, Olakunle pointed out that the defendants presently do not have either application for leave or stay before the court and that the submission by Owonikoko “is at best an oral application for stay of proceeding which does not accord with the rules of the court.”
According to claimants’ counsel, the appeal being interlocutory can conveniently be taken together by the defendants if at the end the final decision goes against them and they choose to appeal it. He therefore dismissed the court of appeal authorities cited by Owonikoko, stating that they all relate to rules of proceedings of State or Federal High Courts which lack the unique provision of the NICN Act where appeal does not automatically translate to stay of proceedings except on grounds of fundamental rights issues.
