Have you considered the title of this editorial? This hunting story is about to be told by an antelope and it shall surely be told to favour the prey.
In our previous publication, we expressed our surprise as to how the National Labour Commission (NLC) could secure an interlocutory injunction where there is no writ of summons or originating motion or petition pending before the High Court.
We hope to have found the answer to our surprise. And it appears to learn minds that the NLC seems to be getting something wrong thereby resulting in them misleading the Courts.
We are still of the considered opinion that a party cannot get an interlocutory injunction against another party when there is no lawsuit against that second party pending before the Court. This is trite. But this trite learning may not be so notorious to the Commission or if it is known to them, someone is poised to use his hunting power to bamboozle the poor antelope.
The LABOUR ACT, 2003 (ACT 651) gives certain powers or rights to the National Labour Commission. One of such powers or rights is provided in SECTION 172.
SECTION 172 OF ACT 651 provides that
“Where any person fails or refuses to comply with a direction or an order issued by the Commission under this Act the Commission shall make an application to the High Court for an order to compel that person to comply with the direction or order.“
This provision says that the NLC shall make AN APPLICATION to the High Court for an order aimed at compelling that person to comply with any orders or directions given by the NLC. The Section does not say ex parte application or an injunction application; the section simply says AN APPLICATION.
There are two types of applications that can be made to the Court. One type is AN ORIGINATING MOTION. An originating motion is an application made to the court to start or commence a suit against another party. This is used when an enactment says so. We are saying so because the law provides that all court proceedings shall commence by way of writ of summons unless a law provides otherwise. So an originating motion is to commence an action in court when a law expressly says so. And it also means that it cannot be done ex parte. That is, if a writ of summons cannot be done on the blind side of a party or what is technically called ex parte, an originating motion cannot be done on the blind side of another party.
The second type of application is an application made to the court when there is an already pending suit or action before the Court. Depending on the circumstances of the case, this type of application can be made on notice or ex parte.
The NLC seems to interpret SECTION 172 OF ACT 651 to mean the second type of application and also by ex parte, that is, on the blind side of the party.
If there is no suit pending before the Court, how can the NLC read SECTION 172 OF ACT 651 to mean a type of application that is made when there is a pending suit?
The Court will have to answer that question on 16th August 2021, when our Tort Law lecturer, Kele-Delta moves the application on behalf of UTAG.
A judicial pronouncement of SECTION 172, ACT 651 will be good for UTAG, TUTAG and all other labour unions in the country.