IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 12th July, 2017 SUIT NO.:NICN/EN/24/2016
BETWEEN:
COMRADE OKEH CHRISTOPHER NWAFOR===CLAIMANT
AND
- EZZA NORTH L.G.A. OF EBONYI STATE
- HON. NORAH OLUCHI ALOH
(Chairman Caretaker Committee Ezza North LGA)
- COMRADE LEONARD IHEANACHO NKAH
( State President NULGE Ebonyi State)
- NULGE EBONYI STATE================RESPONDENTS
REPRESENTATION:
- C. Ibiam Esq. for the Claimants.
No representation for the Respondents.
JUDGMENT
The Claimant approached this Honourable Court with an Originating Summons dated 9th June, 2016 but filed on 10th June, 2016 asking it to determine the following questions:
- Whether the 1st and 2nd Defendants can validly interfere with the 3rd and 4th Defendants conduct of Branch Election of their members at the Ezza North L.G.A. contrary to their right to freedom of Association as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), Sections 13 and 19(1) of the Trade Unions Act, Cap T14, LFN, 2004 and Rule 10(i) and 11 of the Reviewed Nigerian Union of Local Government Employees Constitution 2005?
- Whether the Defendants can validly reach a compromise to postpone and fix a fresh date for an already concluded NULGE Branch Election of the Ezza North L.G.A., wherein the Claimant contested and emerged as a winner and took his oath of office and oath of allegiance, without involving him or first hearing him, in contravention of Section 36 of the Constitution of Nigeria 1999 (As Amended); and the principle of natural justice?
Upon the determination of these questions the Claimant sought the following reliefs from the Respondents:
- A DECLARATION of the Court that the 1st and 2nd Respondents interference in the 3rd and 4thDefendants’ Branch Election in Ezza North L.G.A. is unconstitutional, null and void and of no effect for violating Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), Sections 13 and 19(1) of the Trade Unions Act and Rule 10(i) and 11 of the Reviewed Nigeria Union of Local Government Employees Constitution 2005.
- A DECLARATION of the court that the NULGE Branch Election held at Ezza North LGA on 16/03/2016 wherein the Claimant emerged as the elected Branch Chairman and took his oath of office and oath of allegiance is valid and subsisting.
iii. AN ORDER of Court setting aside Exhibits C and F for purporting to postpone and fixing a fresh date for an already concluded NULGE Branch Election of the Ezza North LGA held on the 16/03/2016, wherein the Claimant emerged as the winner and was sworn in by the 3rd Respondent by taking his oath of office and oath of allegiance.
- AN ORDER of the Court mandating the Respondents their staff, representatives, agents and privies to recognize the Claimant as the duly elected Branch Chairman of NULGE in Ezza North LGA.
- AN ORDER of Court mandating the Respondents to start/continue releasing to the Claimant the rebate, office impress and all his entitlements and fringe benefits as the elected Branch Chairman of NULGE in Ezza North LGA.
- AN ORDER of Court mandating the Defendants to account for and release to the Claimant all the rebates, office impress, office entitlements and fringe benefits already released to any person other than the Claimant from 16/03/2016, until judgment is given in this matter.
vii. AND FOR SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem fit to make in the Circumstance of this case in the interest of justice.
The Originating Summons is accompanied with an Affidavit setting out the facts relied upon of 38 paragraphs and copies of exhibits attached thereto. There is also a written address dated 7th June, 2016. In the said written address learned counsel formulated and argued the following issues for the court’s determination:
- Whether the 1st and 2nd Defendants can validly interfere with the 3rd and 4th Defendant’s conduct of the Branch Election of their members at Ezza North LGA contrary to their right to freedom of Association as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), Sections 13 and 19(1) of the Trade Unions Act, Cap T14, LFN, 2004 and Rules 10(i) and 11 of the reviewed Nigerian Union of Local Government Employees Constitution 2005?
- Whether the Defendants can validly reach a compromise to postpone and fix fresh date for an already concluded NULGE Branch Election of the Ezza North LGA, wherein the Claimant contested and emerged as a winner and took his oath of office and oath of allegiance, without involving him or first hearing him, in contravention of Section 36 of the Constitution of Nigeria 1999 (As Amended); and the principle of natural justice?
Arguing the first issue, learned counsel stated that the determination of this issue is simply the determination of the meaning of Section 40 of the Constitution of the Federal Republic of Nigeria 1999(As Amended) that provides for the right of every citizen of Nigeria including the Claimant to assemble freely and associate with other persons, and in particular he may form or belong to any trade union, Section 13 and 19(1) of the Trade Unions Act, Cap T14, LFN 2004 which provides that every member of a registered trade union has the right to hold any office in the union unless where such person is disqualified and Rule 10(i) and (11) of the reviewed Nigerian Union of Local Government Employees Constitution 2005, which vested the 3rd and 4th Defendants the right of administration, organization and control of the union’s activities in their local branches conducting of their elections. He continued that the Reviewed Constitution of 2005 is the Rule Book of the Union registered in accordance with Section 3(3) of the Trade Unions Act, and the law is settled that the Constitution of a Union is a contract document between the members of the Union, and that members subsumed several rights into the letters of the constitution. He referred to the case of Nigerian Civil Service Union & Anor vs O.G. Essien & Anor (1985) 3 NWLR (Pt. 12) 306.
That by virtue of Section 13 and 19(1) of the Trade Unions Act every member of a registered trade union is entitled to hold any union office. In the case of Nigerian Civil Service Union & Anor vs O.G. & Anor, supra, the Court refused an application for an order declaring David Ijie’s election invalid. Counsel added that the Reviewed NULGE Constitution 2005 never made any provision or gave room for the interference of the of the Executive or the political class of neither the State nor the Local Government into the internal/domestic affairs of the Union, and any such interference amounts to actions without legal backing and to that effect null and void and to no effect.
That it is trite law that once an action is done in contravention of the law, such act is not only void but incurably void as one cannot place something on nothing and expect it to stand, referring to Lord Denning in UAC vs Mcfoy (1961) 3 All ER 1169. He finally submitted that the unsolicited interference by the 2nd defendant, the administrative head of the 1st defendant into the internal/domestic affairs of the 3rd and 4th defendants is in contravention of Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), Section 13 and 19(1) of the Trade Unions Act and Rules 10(i) and 11 of the Reviewed NULGE Constitution has no legal backing and as such ousts and ultra vires her powers.
Learned counsel stated that in conclusion he returns a negative answer to the issue which is to the effect that the 1st and 2nd defendants cannot validly interfere with the 3rd and 4thdefendants conduct of the Branch elections of its members at Ezza North LGA contrary to their right to freedom of association as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), Section 13 and 19(1) of the Trade Unions Act (Cap. T.14, LFN 2004) and Rule 10 and 11 of the Reviewed constitution of NULGE 2005. He then urged the court to hold same.
On the 2nd issue, learned counsel started by reiterating an already settled law that the constitution of a union is a contract document between the members of the union and that members subsumed several rights into the letters of the constitution. He referred to Nigerian Civil Service Union & Anor vs O.G. Essien & Anor, supra. Counsel submitted that the claimant has expressly stated in his affidavit setting out facts in support of the originating summons with exhibits attached that all the processes and procedures of the conduct of the NULGE Branch Election in all the 13 Local Government of Ebonyi State including the 1st Defendant’s Council was observed to the letter, and this includes dissolution of the past executive, notice of conference/election, purchasing of nomination forms, filling same and submitting to the 3rd and 4th defendants’ office, issuing of the election time table/schedules, conducting of the election on the day fixed in the said time table, participating in the said election, polling the highest number of valid votes cast, emerging as the winner,, swearing in by the 3rd defendant by taking oath of office and oath of allegiance, all in strict compliance with/observation of the union’s constitution.
Learned counsel further argued that having observed the rules and procedures in the conduct of the said election wherein the claimant emerged and was administered with his oath of office and allegiance by the 3rd defendant, the provisions of the union constitution being their contractual document should be binding on the 3rd and 4th defendants to that extent they cannot by compromise or whatsoever arrangement so called postpone and fix a fresh date for already concluded election in a ploy to deny the claimant his right to hold an office in a registered union where he is a bona fide and financial member contrary to Section 13 and 19(1) of the Trade Unions Act. He referred to Nigerian Civil Service Union & Anor vs O.G. Essien & Anor, supra.
He argued further that the failure of the Defendants to involve or hear the claimant who has already been duly elected and sworn in as the Branch Chairman of NULGE 1st defendant Council before reaching such compromise or agreement renders such compromise/agreement null and void for violating Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and the principle of natural justice. He referred to Lee vs Showmen’s Guild (1952) 1 All ER 1180-81, where the eminent jurist stated that no rule can oust the right to be heard any such rule cannot stipulate the power to condemn a man unheard. He referred to the case of Lawlor vs Post Office Workers (1965) 1 All ER 353; (1965) 2 WLR 579, where the court held that the executives ought to have acted judicially, since the rule book provided for offence and appeal (both terms legal) to the annual conference. He then urged the court not to allow the defendants act arbitrarily but hold them bound by the constitution, rules book and principles of law, which both parties accepted as binding on them. He referred to Tukur vs UBA (2013) 2 NWLR (Pt. 1343), p. 90 SC.
The Respondents did not file any process in defence of this suit.
I have carefully considered the processes filed, the arguments and submissions of the Claimant in this case. The main issue for determination is whether or not the Claimant is entitled to his reliefs?
Before going into the issue for determination let me state the facts of the case briefly. The Claimant states that he is a staff of Ezza North Local Government Area of Ebonyi State and a member of Nigeria Union of Local Government Employees (NULGE), Ebonyi State Branch. He stated further that he was elected Branch Chairman of NULGE Ezza North L.G. Branch conducted on 16/03/2016. That the election was conducted by the 3rd and 4th Respondents in line with the provisions of Rule 11(a)(i) and (ii) or the Constitution of NULGE, 2005. He complied withall the required processes which involved the purchase and completion of nomination form. That three contestants for chairmanship position, namely, Comrade Ewa Stanley, Comrade Humphrey Chika and the Claimant were screened for election of 16/03/2016 which was then conducted by means of secret ballot and the votes were counted. The claimant won the election and was sworn in by the 3rd defendant.
The claimant further stated that after the said election the 2nd defendant used the men of the Nigerian Police to arrest and detain the 3rd defendant on the allegation that the he conducted election in a Local Government she is in charge/control against her wish and directives that election should not be held. That in the process of resolving and or/securing release of the 3rd defendant from Police, a compromise was reached wherein a letter was written from the office of the State Secretary of the 4th Defendant to the effect that the already concluded election wherein the claimant emerged winner and was sworn into office had been postponed just to do the bidding of the 2nd defendant. The claimant further stated that he was not part of that compromise even though he is the duly elected and sworn chairman of the union. That the 1st and 2nd defendants have not recognized the claimant as the duly elected and sworn chairman of the union.
Furthermore, the claimant deposed that the 3rd and 4th defendants on 31/05/2016 issued a circular purporting to conduct another election on the 17/06/2016 as a date for fresh election into the same office he was duly elected and sworn in on 16/03/2016. That his election is still valid and there is no vacancy to warrant the conduct of a fresh election. Hence he brought this action seeking the determination of the questions raised as well as the reliefs claimed.
Back to the issues for determination, the Claimant’s case is that the 2nd Respondent has interfered with the activities of the Claimant as well as those of the 3rd and 4th Respondents in relation to the conduct of the union’s Branch election at Ezza North L.G.A. of Ebonyi State and this has violated his right to freedom of association as guaranteed by the 1999 Constitution as Amended. This the Claimant contends cannot be allowed the 1st and 2nd Respondents. An examination of the affidavit in support of the originating summons shows that what the Claimant argues as the ‘interference’ is that the 2nd defendant used the men of the Nigerian Police to arrest and detain the 3rd Respondent over the allegation of going against the 2nd Respondent’s directives that the election should not be held. He further alluded that the release of the 3rd Respondent was only obtained upon the doing the bidding of the 2nd Respondent wherein the election of 16/03/2016 was postponed vide Exhibit C, the letter of postponement signed by Chuks M. Nwankwo (Fcrmi), the State Secretary (NULGE). He also alleged that the 2nd Respondent was not in favour of the Claimant emerging the Chairman of the union at the said election and that she favoured one Comrade Ewa Stanley instead. See paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 32, 33, 34 and 37 of the affidavit in support of the originating summons. All these acts, the Claimant contended, amounted to interference with the internal affairs of the 3rd and 4th Respondents and hence a violation of their fundamental right to freedom of association as well as of the provisions of the Constitution of their union.
This is not to be allowed.
The point here is that looking at the Section 40 of the 1999 Constitution which guarantees the right of the Claimant as well as the 3rd and 4th Respondents to freedom of association, including the freedom to belong to and exercise their legitimate rights to trade unionism, the Claimant is correct that the 1st and 2nd Respondents have no right to whatsoever to interfere with the said constitutionally guaranteed right to freedom of association. I therefore have no difficulty in agreeing with the claimant in this regard. The problem however, is with the claim of the claimant that a branch election has taken place on the 16/03/2016 before it was allegedly suspended by the State Secretary of NULGE, through exhibit C. The claimant’s position is that any decision to postpone the said election should have been taken with his participation because he has the right to be heard as guaranteed under Section 36 of the 1999 Constitution. But the first question to determine is the veracity of the claimant’s claim that the election had in fact taken place on the 16/03/2016.
The affidavit in support, paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 thereof have stated the alleged steps that were taken in holding the said election on the 16/03/2016. However, the Claimant has not provided the details of the conduct of the election itself. For example, there is no reference to the officers who conducted the election, the total number of votes cast as well as the votes scored by each of the candidates that contested the election. There is also nothing that shows any certificate of return at the election or copies of the documents showing the oath of office and oath of allegiance allegedly sworn to by the Claimant following the election. It has to be pointed out that in a civil suit such as this, it is the duty of the Claimant to prove his case on the preponderance of the evidence he adduces and
