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NATIONAL UNION OF ELECTRICITY EMPLOYEES & ORS -VS- STANLEY ABIODUN ILUMAH AND ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURBLE JUSTICE E, N. AGBAKOBA

 

DATED 14TH MARCH,  2017                                                  SUIT NO: NICN/ABJ/417 /2016

 

BETWEEN:

  1. NATIONAL UNION OF ELECTRICITY EMPLOYEES (NUEE)                   CLAIMANT’S
  2. SENIOR STAFF ASSOCIATION OF ELECTRICITY                         APPLICANTS

AND ALLIED COMPANIES (SSAEC)

 

AND:

  1. STANLEY ABIODUN ILUMAH
  2. SUNDAY ONYEMAECHI EZE
  3. ETUDAIYE ENEYE
  4. ANJORIN DARE
  5. ADEBOYE JOSEPH
  6. TALATU SHUAIBU
  7. IDRIS AHMADU
  8. KENNETH MULA                                                                                                DEFENDANTS/
  9. GANKON HASSAN                                                                                              RESPONDENTS 

     (FOR THEMSELVES AND ON                                                    

     BEHALF OF PHCN STAFF FORUM)

  1. REGISTRAR OF TRADE UNIONS
  2. MINISTER OF LABOUR AND EMPLOYMENT
  3. MINISTRY OF POWER
  4. BUREAU OF PUBLIC ENTERPRISE
  5. ECONOMIC AND FINANCIAL CRIMES COMMISSION

 

REPRESENTATION

CHIEF SOLS IJI Esq for the claimant applicant with

  1. M RUFIA for the 1stRespondent

 

RULING

The Claimants commenced this action vide Originating Summons filed on 18th November, 2016 accompanied by a 41 paragraph affidavit deposed to Comrade Joe Ajaero, claiming for the determination of the following questions:

 

  1.  Whether by virtue of Articles III (9); V (1)(3) and IX of the lst  Claimant’s Constitution (2011), and Rules 18(v) & 190 & 2) of the Constitution of the 2nd Claimant, the Claimants are empowered to raise funds to finance their activities through membership subscriptions and levies in accordance with their constitutions drawn up pursuant to sections 15(1), 17(a), 23(2)(b) & 23(3) of the Trade Unions Act (TUA) Cap T14 Laws of the Federation of Nigeria, 2004.

 

  1.  Whether by virtue of the Resolution of the National Executive Council of the 1st  Claimant at its meeting held at Grace Point Resort Hotel, Abuja, on Friday March, 2013 and the Resolution of the National Executive Council of the 2nd Claimant at its meeting held at Lagos Airport Hotels, Ikeja on 11th-12th April, 2013, respectively, in exercise of their powers under Articles IX and Rule 9 (ii) of the 1st and 2nd Claimant’s Constitution respectively, on the 2% levy on the terminal benefits of the 1st-9th Defendants and other members of the Claimants who were affected by the privatization exercise of PHCN, is valid and binding on the said 1st 9th Defendants and others who were members of the Claimants at the material time.

 

  1.  Whether by virtue of the various Statements of Final Claims endorsed by the 1st – 9th Defendants and other members of the Claimants, who were affected by the privatization exercise of PHCN, the said 2% levy was lawfully and validly deducted.

 

  1.  Whether by virtue of their Job loss or for any reason whatsoever, the 1st-9th Defendants and other members of the Claimants affected by the privatization exercise of PHCN are entitled to a refund of their union dues and the 2% levy deducted from their final severance benefits negotiated by the Claimants on their behalf or any other deducted levies whilst they were members of the Claimants.

 

  1.  Whether by the principle of “generalia specialibus non derogant” the Trade Unions Act (TUA) prevails over the Economic and Financial Crimes Commission (EFCC) Act in the oversight functions and powers to ensure accountability and transparency in the Claimants.

 

  1.  Whether by virtue of Sections 37, 39, 40, 41 and 42 of the Trade Unions Act Cap

T14 Laws of the Federation of Nigeria, 2004 with regard to the powers of the Registrar of Trade Unions in ensuring accountability in the affairs of the Claimants, the invitation of past and present officers, and/or agents of the Claimants by the 14th Defendant amounts to usurpation of the said powers of the Registrar of Trade Unions.

 

WHEREOF the Claimants pray the Honourable Court for the following reliefs:

 

  1.  A DECLARATION that by virtue of Articles III (9); V (1)(3) and IX of the 1st Claimant’s Constitution (2011), and Rules 18(v) & 19(1 & 2) of the Constitution of the 2nd Claimant, the Claimants are empowered to raise funds to finance their activities through membership subscriptions and levies in accordance with their constitutions drawn up pursuant to sections 15(1), 17(a), 23(2)(b) & 23(3) of the Trade Unions Act (TUA) Cap T14 Laws of the Federation of Nigeria, 2004.

 

  1.  A DECLARATION that by virtue of the Resolution of the National Executive Council of the Claimant at its meeting held at Grace Point Resort Hotel, Abuja, on Friday 1st March, 2013 and the Resolution of the National Executive Council of the 2nd Claimant at its meeting held at Lagos Airport Hotels, on 11th-12th April, 2013, respectively, in exercise of their powers under Articles IX and Rule 9 (ii) of the and 2nd Claimant’s Constitution respectively, on the 2% levy on the terminal benefits of the 1st-9th Defendants and other members of the Claimants who were affected by the privatization exercise of PHCN, is valid and binding on the said 1st-9th Defendants and others who were members of the Claimants at the material time.

 

  1.  A DECLARATION that by virtue of the various Statements of Final Claims endorsed by the 1st to 9th Defendants and other members of the Claimants, who were affected by the privatization exercise of PHCN, the said 2% levy was lawfully and validly deducted.

 

  1.  A DECLARATION that by virtue of their Job loss or for any reason whatsoever, the 1st – 9thDefendants and other members of the Claimants affected by the privatization exercise of PHCN are not entitled to a refund of their union dues and the 2% levy deducted from their final severance benefits negotiated by the Claimants on their behalf or any other deducted levies whilst they were members of the Claimants.

 

  1.  AN ORDER OF PERPETUAL INJUNCTION restraining the 1st to 9th Defendants from demanding the 2% levy deducted from their final severance benefits negotiated by the Claimants on their behalf or any other deducted levies whilst they were members of the Claimants.

 

  1.  A DECLARATION that by the principle of “generalia specialibus non derogant” the Trade Unions Act (TUA) prevails over the Economic and Financial Crimes Commission (EFCC) Act in the oversight functions and powers to ensure accountability and transparency in the Claimants.
  2.  A DECLARATION that by virtue of Sections 37, 39, 40, 41 and 42 of the Trade

Unions Act with regard to the powers of the Registrar of Trade Unions in ensuring accountability in the affairs of the Claimants, the invitation of past and present officers, and/or agents of the Claimants by the 14th Defendant amounts to usurpation of the said powers of the Registrar of Trade Unions.

 

  1.  AN ORDER OF PERPETUAL INJUNCTION restraining the 14th Defendant, its servants, operatives, officers, agents or privies from further usurping the powers of the Registrar of Trade Unions with respect to the affairs of the Claimants through invitations to Claimants’ past and present, officials and/or agents and calling for their books of accounts consequent upon the 2% levies deducted from the terminal benefits of disengaged members of the Claimants.

 

  1.  AN ORDER directing the lst — 9th Defendants to pay the sum of N10, 000,000 (Ten Million Naira) being cost of this suit.

 

  1.  GENERAL DAMAGES of N50, 000,000 (Fifty Million Naira) against the 1st — 9th Defendants both jointly and severally.

 

Together with a WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

 

The Claimants/Applicants also filed a MOTION ON NOTICE on 18th November, 2016 and dated same day supported by a 44 paragraph affidavit deposed to by Comrade Joe Ajaero, praying the Court for the following orders:

 

  1.  AN ORDER of interlocutory injunction restraining the 1st — 9th and 14th Respondents from harassing, disturbing or questioning the Claimants/Applicants on the 2% levy deducted from the terminal benefits of the former members of Claimants/Applicants who were affected by the privatisation exercise of the Power Holding Company of Nigeria (PHCN), until the final determination of the substantive suit.

 

  1.  AN ORDER of interlocutory injunction restraining the 14th Respondents from detaining or arresting the Past and Present Executives of the lst and 2nd Claimant until the final determination of the substantive suit.

 

The claimants/Applicant in WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTICE their raised one sole ISSUES:

Whether or not the Honourable Court ought to exercise its discretion to make an order of interim Injunction in the terms set out in the Motion on Notice pending the determination of the substantive Suit.

Learned Counsel to the Claimant Applicant Sola Iji Esq, citing Section 16(1), National Industrial

Court Act, 2006, submitted that the Honourable Court has the unimpeded discretion to grant an application for an injunction, which discretion however needs to be exercised judicially and judiciously. Furthermore, that the purpose of an interim or interlocutory injunction is to preserve the subject matter (or res) of the suit in the state in which it was prior to the outbreak of dispute (status quo ante bellum) pending the time when the question at issue between the parties shall be finally determined by the Court. Leasing company (Nigeria) Limited v Tiger Industries Ltd. (2007) 14 NWLR (Pt. 1054) 346 at 324 (B-C).

 

Claimant /Applicants Counsel also submitted that flowing from the line of authorities of Obeya

Memorial Hospital V. Attorney General of the Federation (1987) 3 NWLR (Pt. 60) 325 (with particular reference to the dictum of Obaseki, JSC at page 33]); N.A.B. Kotoye V. Central Bank of Nigeria & Ors. (1989) 1 NWLR (Pt. 98) 419 (with particular reference to the dictum of Nnaemeka-Agu, JSC at page 441); {1989} 2 S.C. (pt. 1) 1 and Globe Fishing industries V. Coker (1990) 7 NWLR(Pt. 162) 205, it has been established by the Supreme Court of Nigeria while placing heavy reliance in all these cases upon the famed dictum of Diplock, U in the House of Lords’ case of Cyanamid Co. V. Ethicori Limited (1975) A.C. 396, 1 All E.R. 504 that the following three requirements are to be satisfied in the consideration of a grant of an order of interlocutory injunction viz:

  1. i) Is there a serious question to be tried?
  2. ii) If so, will damages be adequate compensation for the temporary inconvenience?

iii)        If damages will be inadequate compensation, in whose favour is the balance of convenience?

Owerri Municipal Council & Ors. V. Innocent Onuoha & Ors. (2010)All FWLR (Pt. 538) 896, per Mt. Garba, JCA held at pages 914- 915.

Submitting that the legal right of the Applicants that was in existence prior to the termination of the 1st—9th Defendants from the employment of the Kaduna Electricity Distribution Company needs the protection of this Honourable Court. F.M. Udo V. Incorporated  Trustees of Christian Methodist Episcopal Church (2010) All FWLR (Pt. 507) 79, quoting the dictum of Sankey, JCA, in Adewale V. Governor of Ekiti State (2007) All FWLR (PT, 383) 130, per Orji-Abadua, JCA. He submitted that the conduct of the Applicants in this case or in the circumstances leading up to it, has not been reprehensible as to warrant the Honourable Court declining intervention in their present application and that they have not been guilty of delay nor have they done any other thing to warrant the Honourable Court not exercising its discretion in favour of this application. Kotoye v. C.S.N. (Supra) (1989)2 S.C. (pt. 1) 1 particularly at page 17.

 

The 1st Respondents filed their Motion on notice dated 13th January 2017 filed on the 16th January 2017 together with their Memorandum of Appearance and a Written Address. The FIRST RESPONDENT’S in their’ WRITTEN ADDRESS IN RESPONSE TO THE MOTION ON NOTICE DATED 18TH NOVEMBER, 2016’ (filed on 16th January, 2017 and dated 13th January, 2017). Raised two (2) ISSUES:

 

  1. Whether the application as constituted, is an abuse of court process?
  2. Whether the application as canvassed and argued has merit?

 

ON ISSUE 1

Whether the application as constituted, is an abuse of court process?

Learned Counsel to the 1st Respondent  M. O. Abdul Salam Esq. submitted that an investigation on the issue of 2% levy deducted from the terminal benefit of the former members of the Applicants can be conducted or effected without the need to question the Applicants, assuming that they are capable of being questioned? PLATAEU STATE v. A.G. FEDERATION (2006) 3 NWLR (PT. 967) 346 @ 419, PARAS. G-H; ADEOGUN v. FASHOGBON (2009) ALL FWLR (PT. 449) 531 @ 552-553, PARAS. H-E; NWORA v. NWABUEZE (2012) ALL FWLR (PT. 613) 1824 @ 1838-1839. He submitted that it is trite law that a court is not allowed to speculate upon issues not properly placed before it. OGUNLOYE v. ESINKIN (1999) 6 SCNJ 278 @ 290 LINES 19 -21; NDULUE v. ONYEKULUNNE (2002) 5 SC (PT. 2) 124 @ 132-133.

 

It is counsel’s contention that the injunction sought against the 14th Respondent is not in favour of the parties in the record of proceeding, rather, the parties on record are asking the injunction in favour of parties who chose to stand-by and become spectators to their own battle. BADEJO v. MINISTER OF EDUCATION (1996) 9-10 SCNJ 51 @ 68. He submitted that it trite that parties are bound by the prayers of the Applicant and thus join issues on the prayers in the motion paper. C.W.B.S. v. SANTILI (1990) 3 SCNJ 83 @ 127; F.A.T.B. v. UZEGBU (1993) 6 SCNJ (PT. 1) 122 @ 144.

 

Counsel to the 1st Respondent submitted further, that each prayer is a substantive prayer and the general or omnibus prayer does not empower the court to grant a relief not specifically claimed. OWENA BANK v. STOCK EXCHANGE (1997) 7 SCNJ 160 @ 172; EZEONWU v ONYECHI (1996) 2 SCNJ 250. He argued that prayers one and two as couched by the Applicants have incapacitated themselves from favourable exercise of the discretion of this Honorable Court, thus, in effect, it is improper for a court to reform the prayers in a motion paper to facilitate its success. IBWA v. PAVEX INTERNATIONAL (2000) 4 SCNJ 200 @ 223.

 

ON ISSUE 2

Whether the application as canvassed and argued has merit?

 

1st Respondent’s Counsel submitted that an application of this nature is not granted as a matter of course but upon the judicious and judicial exercise of the discretion of or equitable consideration by this Honorable Court. FALOWO v. BANIGBE (1998) 6 SCNJ 42 @ 57 LINES 21 – 29; ADELEKE v. LAWAL (2013) 2 SCNJ (PT. 3) 1052 @ 1067 LINES 30 36.It is 1st Respondent’s counsel’s contention that an injunction is an equitable remedy usually granted at the discretion of the court. ADELEKE v. LAWAL (SUPRA) 1067 LINES 20 – 22.Furthermore, that one of the key equitable maxim is that he who comes to equity must come with clean hands. OWENA BANK PLC. V. OLATUNJI (1999) 13 NWLR (PT. 634) 218 @ 232, PARAS. F-G; ADEJUMO v. AYANTEGBE (1989) 6 S.C. (PT. 1) 76.He submitted that an undertaking as to damages is requisite and imperative to the success of an application for a

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