NATIONAL UNION OF ELECTRICITY EMPLOYEES (NUEE) & ors -VS-

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 30^TH APRIL, 2018 SUIT NO: NICN/ABJ/417 /2016

BETWEEN

NATIONAL UNION OF ELECTRICITY EMPLOYEES (NUEE)
SENIOR STAFF ASSOCIATION OF ELECTRICITY

AND ALLIED COMPANIES (SSAEC) CLAIMANTS

AND

STANLEY ABIODUN ILUMAH
SUNDAY ONYEMAECHI EZE
ETUDAIYE ENEYE
ANJORIN DARE
ADEBOYE JOSEPH
TALATU SHUAIBU
IDRIS AHMADU
KENNETH MULA DEFENDANTS/
GANKON HASSAN RESPONDENTS

(FOR THEMSELVES AND ON

BEHALF OF PHCN STAFF FORUM)

REGISTRAR OF TRADE UNIONS
MINISTER OF LABOUR AND EMPLOYMENT
MINISTRY OF POWER
BUREAU OF PUBLIC ENTERPRISE
ECONOMIC AND FINANCIAL CRIMES COMMISSION

REPRESENTATION

ANTHONY ITEDJERE with AMAKA EKEZIE for the Claimants

O. EGALASE for the 10^th& 11^thDefendants

ALERO TOPE-BANJOKO for the 13^th Defendant

CHRIS MSHELIA for the 14^th Defendant

JUDGMENT

The Claimants commenced this action vide Originating Summons filed on 18^th 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 1^st 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.

2) Whether by virtue of the Resolution of the National Executive Council of the 1^st 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 1^st 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 1^st– 9th Defendants and others who were members of the Claimants at the material time.

3) 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.

4) 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.

5) 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.

6) Whether by virtue of Sections 37, 39, 40, 41 and 42 of the Trade Unions Act CapT14 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.

2) 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 1^st 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.

3) 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.

4) A DECLARATION that by virtue of their Job loss or for any reason whatsoever, the 1st9th Defendants 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.

5) 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.

6) 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.

7) 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.

8) 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.

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

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

WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

1) Whether by Articles III (9); V (1)(3) and IX (1) of the 1st Claimant’s Constitution (2011), and Rules 18(v) & 19(1 & 2) of the Constitution of the 2nd Claimant, respectively 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, the Claimants are empowered to raise funds to finance their activities through membership subscriptions and levies.

2) 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 1^st 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 Claimants’ 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.

3) Whether such funds raised through membership subscriptions and/or levies, particularly those raised under the express consent of such members are refundable at all or by reason of such member having ceased to be a member of the Trade Union.

4) Whether having regards to the principle of “generalia specialibus non derogant”, the Economic and Financial Crimes Commission can exercise its general powers conferred on it by the Economic and Financial Crimes Commission Act, 2004, over the Claimants’ Accounts, when such power has been specifically vested in the Registrar of Trade Unions under the Trade Unions Act, Cap T14, LFN, 2004.

ON ISSUE 1

Whether by Articles III (9); V (1)(3) and IX (1) of the 1st Claimant’s Constitution (2011), and Rules 18(v) & 19(1 & 2) of the Constitution of the 2nd Claimant, respectively 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, the Claimants are empowered to raise funds to finance their activities through membership subscriptions and levies.

Counsel contended that the above cited provisions of the Claimants’ constitution are very clear and self-explanatory and as such should be given its literal meaning without more as this has been reinforced judicially by the Supreme Court in the case of AMASIKE V. THE REGISTRAR GENERAL) CAC & ANOR (2010) LPELR-456(SC).

He urged Court to answer the first issue as formulated and canvassed by the Claimants in the affirmative by construing and holding that by Articles III (9); V (1) (3) and IX (1) of the 1st Claimant’s Constitution (2011), and Rules 18(v) & 19(i & ii) of the Constitution of the 2nd Claimant, respectively 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, the Claimants are empowered to raise funds to finance their activities through membership subscriptions and levies.

ON ISSUE 2

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 1st 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 Claimants’ 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.

It is Counsel’s submission that where the provisions of a statute or documents are clear and unambiguous, the Court will give it its literal interpretation. Amasike V. The Registrar General, CAC & Anor (Supra). He urged the Court to hold that the Provisions of Articles IX (1) and Rule 9 (H) of the 1st and 2nd Claimants’ Constitution respectively are clear and unambiguous and should be given its clear meaning.

ON ISSUE 3

Whether such funds raised through membership subscriptions and/or levies, particularly those raised under the express consent of such members are refundable at all or by reason of such member having ceased to be a member of the Trade Union.

Counsel submitted that a party cannot approbate and reprobate at the same time and that where a party signs or executes a document, he or she is bound by the content of that document. ADEFARASIN V. DAYEKH (2007) ALL FWLR (PT.348) 911; OMONIYI V ALABI [2004] 6 NWLR (PT.870) 551.

Counsel assuming without conceding that a refund is possible, and a right, submitted that a refund is only contemplated in the case of its dissolution. Article XXVIII (3) of the 1 Claimant’s Constitution provides as follows:

“In the event of dissolution as provided for above, all debts and liabilities legally incurred on behalf of the union shall be fully paid up and the remaining funds divided out to members in rational proportions of their entitlement or as a further referendum on this particular issue may decide.”

Rule 31 (ii) of the 2nd Claimant’s Constitution provides as follows:

“In the event of dissolution as provided in this constitution and law of the land, the assets and liabilities of the association shall be fully discharged and the remaining fund shall be divided among the members in equal shares.”

ON ISSUE 4

Whether having regards to the principle of “generalia specialibus non derogant”, the

Economic and Financial Crimes Commission can exercise its general powers conferred on it by the Economic and Financial Crimes Commission Act, 2004, over the Claimants’ Accounts, when such power has been specifically vested in the Registrar of Trade Unions under the Trade Unions Act, Cap T14, LFN, 2004.

Counsel submitted that by the legal principle of “general/a 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.

Commercial Tax Officer, Rajasthan v. MIS Binani Cement Ltd. & Anor. [2014)3 S.CR. 1 2, (Civil Appeal No. 336 of 2003) delivered on 19/2/14, the Court, per H.L Dattu and S.A. Bobde, JJ.; F.B.N Plc. v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 at 497, Paras. C— E, (Ratio 29; Ardo v Nyakon (2014) 10 NWLR (Pt. 1416) 591 at 628 — 629, Paras. G — 0, Ratio 5.

The 13^th Defendant filed a 14 paragraph COUNTER AFFIDAVIT TO PLAINTIFF’S ORIGINATING SUMMONS DATED 18^TH NOVEMBER, 2016 (filed on 17^th October, 2017) and deposed to by Ibrahim Babagana.

WRITTEN ADDRESS IN SUPPORT OF 13^TH DEFENDANT’S COUNTER AFFIDAVIT TO CLAIMANT’S ORIGINATING SUMMONS

ISSUE

In view of the state of pleadings and evidence adduced by the Claimants in its originating summons, can the Court make any Order binding on the 13^th Defendant when the Claimants have failed to either establish its involvement in the acts complained of or seek any relief against the 13^th Defendant?

Learned Counsel submitted that the Court cannot formulate a different case for the Claimant as it is the duty of the Claimants to formulate his claim or relief being sought and what is material for consideration is the case which the Claimants have presented before the Court. Reptico S.A. Geneva v. Afribank Nigeria Plc. (2013) LPELR-20662 (SC), per Ariwoola, JSC.

He submitted that a Court ought not to make an award in favour of a party who has not claimed it; likewise that it can be safe to conclude that the Court will not make orders against a party whom the Claimants have specifically not sought reliefs against such as the 13^th Defendant in this case. Nzenwata & Ors v. Nzenwata (2016 LPELR-41089 (CA); .G. Abia State v AG Federation (2006,) LPEL613, per Tobi JSC.

CLAIMANTS’ REPLY ON POINT OF LAW TO THE 13th DEFENDANT’S WRITTEN ADDRESS DATED AND FILED 17^th DAY OF OCTOBER 2017 (filed on 6^th November, 2017).

OBJECTION TO 13TH DEFENDANT’S WRITTEN ADDRESS dated 17^thOctober 2017.

Counsel submitted that the issue whether there is a cause of action against the 13th Defendant and whether, by extension, this Honourable Court can make binding orders on the 13^th Defendant had been finally determined by this Court in the Ruling dated 22/6/17 and all that remains for the 13^th Defendant to do is to appeal the Court’s Ruling if it — feels dissatisfied and not to, wittingly or unwittingly, engage in an exercise that may amount to asking the Court to sit on appeal against the Court’s Ruling. Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 49, per GALADIMA, J.S.C. at Page 521, Paras. A — B; Apena v. Aileru (2014) 14 NWLR (Pt. 1426) 111, at Pp. 143 — 144, Paras. E — A.

REPLY ON POINT OF LAW TO 13^TH DEFENDANT’S WRITTEN ADDRESS DATED 17TH OCTOBER 2017

Learned Counsel submitted that this Honourable Court has the power to make binding orders on the 13^th Defendant given the nature of the reliefs sought in this Suit, which include declaratory orders on the status of the Claimants as lawfully recognized and registered trade unions with registered Constitutions which empower the Claimants to raise funds through membership dues and levies, through which the 13^th Defendant lawfully approved the deduction of 2% levies from the entitlements of former members of the Claimants (Paragraph 9 of the 13^th Defendant’s Counter Affidavit) and facilitated the payment of the severance benefits of all PHCN employees including the 1^st-9^th Defendants (Paragraph 10 of the Defendant’s Counter Affidavit). Sosan & Ors v. Odemuyiwa (1984) 1 NSCC 673; Chief Great Ovedje Ogboru & Anor v. Emmanuel Ewetan Uduaghan & 2 Ors (2011)12 SC (Pt. II) 37.

REPLY ON POINT OF LAW TO THE ISSUE ON WHETHER THE CLAIMANTS HAVE ESTABLISHED INVOLVEMENT OF THE 13^THDEFENDANT IN THE ACTS COMPLAINED OF BY THE CLAIMANTS

It is Counsel’s submission that at every material time the court is asked to determine the right and liability in any matter brought before it, the proper party whom the outcome or the decision of the Court will affect must be presented before it. Amos & Ors v. Okoya & Ors (2014) LPELR-2252 7(CA).

He submitted that it has been laid down in plethora of cases that PROPER PARTIES are persons made parties in an action because of their involvement in the events leading to the cause of action. Jemidev. Nwanne & Ors (2008) LPELR-3941 (CA).

It is Counsel’s view that having consideration to paragraphs 14, 15, 16, 17, 18, 19 and 22 of the affidavit in support of the Claimants Originating Summons, It has been abundantly established that the 13^th Defendant actively participated in the series of events that now brought about the cause of action which the Claimants herein complained of, as such, the presence of the 13^th Defendant is required as party proper and necessary to the suit of the Claimants. RE: MOGAJI (1986) 1NWLR (PT.19) 759 at pages 780-781, paras. H-A.

Counsel contended that for both effectual and finality disposition of this matter, that the 13th Defendant is both a Proper and Necessary Party in the circumstance. Adefarasin V Dayekh (2007) 11 NWLR pt. 1044; Green vs. Green (2001) FWLR (Pt. 76) 795, (1987) 7 SCNJ 255, 269.

REPLY ON POINT OF LAW TO THE 13TH DEFENDANT’S ARGUMENT ON COST

It is Counsel’s submission that the award of cost is a matter of discretion of the court, and as such, such discretion must be exercised both judicially and judiciously. Akinbobola v. Plisson Fisko (Nig) Ltd & ORS (1991) LPELRSOLA 343 (SC); Olusanya v. Osin!eye(2013) LPELR-20641(SC). Per Stanley Shenko Alagoa, J.S.C (Pp. 22-23, paras. E-B).

Furthermore, that before the Court can be said to have both judicially and judiciously exercised its discretion in matters relating to cost, the principle of cost must be considered. Ezeugo v. Agim (2015) LPELR-24572(CA); N.N.P.C. v. Klfco Nigeria Ltd. (2011) 10 NWLR (PART 1255) 209 at 234 H to 235 A – B, per Rhodes – Vivour, JSC.

He argued that costs are awarded as an indemnity to the person who has suffered some loss as it is trite that costs follow events. Registered Trustees of Ifeloju v. Kuku (1991) 65 Ratio 13.

Counsel noted that the said 1^st— 9^th Defendants have not denied nor controverted the allegations contained in the Affidavit in support of the Claimants Originating Summons, neither has the 14^thDefendant denied its involvement as the tools of intimidation in the hands of the 1^st – 9^th Defendants. That to that extent, it follows that the Claimants have a genuine cause which deserves the exercise of the adjudicatory powers of this Honourable Court. Nigerian Bank for Commerce & Industry & Anor v. Afijir (Mining) (Nig) Ltd (1999) LPELR-2015 (SC).

On the 6^th of February 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

When this matter first came up for hearing one Solomon Rufai Esq. appeared once for the 1^st Defendant on the 15^th February 2017 with Apamma Dele Ugo State Organizing Secretary representing the 1^st Defendant, the 1^st Defendant Counsel regularized their Conditional Memorandum of Appearance and other processes, they also filed a Preliminary Objection which was heard and determined on 22^nd June, 2017. No other appearance was recorded for the 1^st defendants neither by representative nor Counsel. Also one E. I. Ndidigwe made a single appearance for the 1^st – 9^th defendants on the 17^th November 2017, informed the court that their chambers had just been briefed and they intended to apply for a record of proceedings and were not heard from thereafter. One A. O. Nkales made two appearances for the 10^th and 11^th defendant, on the 15^th January 2017 and 6^th March 2017, on the 15^th January he had informed the court that they the 10^th and 11^th Defendant, had gone through the claimants processes and were not opposing the claimant’s application as they were not affected. The 14^th defendant made no appearance whatsoever throughout the proceedings, only to appear in the morning, the Day of Judgment.

Of all the Defendants only the 13^th Defendant filed and adopted their written address to the claimants originating summon, on the 6^th February 2018. The other Defendants having not filed any response or shown the court any cause for not so filing, the court in line with Order 15 Rule 8 Sub Rule 2(a) proceeded to hear and determine this matter.

Court’s Decision

I have carefully summarized the position of all sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The Claimant has raised the following questions:

Whether by virtue of the Resolution of the National Executive Council of the 1^st 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 1^st 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 1^st– 9th Defendants and others who were members of the Claimants at the material time.

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.

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.

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.

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:

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.

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 1^st 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.

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.

A DECLARATION that by virtue of their Job loss or for any reason whatsoever, the 1^st – 9th Defendants 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.

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.

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.

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.

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.

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

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

The issue for determination in this suit to my mind is whether the Claimants have made out a claim sufficient in law and evidence to ground the reliefs they seek.

The 13^th Defendants in their Counter Affidavit and Written Address sought only to address question upon which this court had determined in a considered ruling. To continue to raise this self-same issue at this point in the proceeding smacks of bad practice and a lack of professional adherence to tenets of this profession. The question of the status of the 13^th Defendant had been settled by this court, recourse can be made to the court’s ruling. The 13^th Defendants were at liberty to file a blank page with the words “We have nothing to argue” in favour of their position than to reiterate their earlier arguments that had been settled by a court’s judicial decision as far as this suit was concerned.

Now the Applicants have raised 4 four distinct questions for the court’s determination: with four issues.

ON ISSUE 1

ON ISSUE 2

ON ISSUE 3

ON ISSUE 4

Whether having regards to the principle of “generalia specialibus non derogant”, the

In Questions One, Two and Three Claimants are seeking pronouncement as to the validity and legalese of their actions in levying their members viz a vie the provisions of the Trade Union Act and their provisions of the Union Constitutions. The Applicant ask:- ‘1. Whether by virtue of Articles III (9); V (1)(3) and IX of the 1^st 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. 2. Whether by virtue of the Resolution of the National Executive Council of the 1^st 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 1^st 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 1^st– 9th Defendants and others who were members of the Claimants at the material time. And 3. 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.

These questions can be distilled and read under the enabling law, constitutions and other documents of agreement: thus the Claimants are empowered to raise funds to finance their activities through membership subscriptions and levies in accordance with their constitutions.

And following the Resolution of the National Executive Council of the 1^st Claimant and the Resolution of the National Executive Council of the 2nd Claimant the 2% levy on the terminal benefit 1^st– 9th Defendants and others was valid and binding.

Question 1 and 2 related to the constitutional provisions of the Claimants Constitution and the Trade Union Act in relation to the actions of the Claimant. I shall address these questions firstly.

In the case of NATIONAL UNION OF PUBLIC CORPORATIONS EMPLOYEES Vs. KWARA STATE WATER UTILITY BOARD 1978-2006 DJNIC, the court held that Unions were creatures of law and the case proceeded to applaud and recognize the demarcations of workers unions and senior staff unions, both the 1^st and 2^nd claimants are unions and the 1^st to the 9^th defendants are or were members of the unions (1^st and 2^nd claimant) the other 5 defendants are by their activities involved with matter which is a union issue I find and as such the enabling law is the Trade Union Act as it is not in dispute that the Claimants are unions with the Trade Union Act 2004 LFN being their ground norm. That being the case I shall start with the provisions of the Trade Union Act.

15(1), 17(a), 23(2)(b) & 23(3) of the Trade Unions Act (TUA) Cap T14 Laws of the Federation of Nigeria, 2004.

Section 15(1) provides that

“Unless the rules of a Trade Union otherwise provide, in so far as the funds of a Trade Union represent payments which the members are required to make under the rules, whether by way of subscriptions, dues or otherwise those funds shall not be applied to any whether directly or indirectly or through any other union, association of body, or in any other indirect manner to the furtherance of any political objective….“

Section 17(a) of the TUA 2004 provides thus;

“Upon the registration and recognition of any of the trade unions specified in the Third Schedule to this Act, the employer shall-

a)Make deduction from the wages of every worker who is a member of any of the trade unions for the purpose of paying contributions to the trade union so registered”.

Article II (9) of the 1st Claimant provides that the Objects of the Union shall include raising funds.

“To raise funds by subscription, levy or otherwise from amongst its members and to invest any money or other property of the Union in any business enterprise that may be authorized by the National Delegates Conference: the National Executive Council or Central Executive Council of the Union.”

While Article V (1) of the 1st Claimant’s Constitution also authorizes the imposition of levies on members, and stipulates that “Sources of revenues of the Union shall comprise:

(a) Monthly check-off dues

(b) Subscription and levies on members

(d) Proceeds from capital investments (such as property development) etc

(e) Proceeds from ventures and enterprises such as printings, cooperatives and other business in which the Union may have interest.”

In addition Article V (3) of the 1st Claimant’s Constitution empowers the National Delegates Conference or the National Executive Council or the Central Executive Council to impose levies as follows:

“The National Delegates Conference or the National Executive Council or the Central Executive Council may impose levies whenever the state of the union’s funds make it desirable, levies or other forms of financial contribution which shall be payable by such or all the members upon whom they are imposed.”

Article IX (1) of the 1st Claimant’s Constitution provides as follows:

“The National Executive Council shall be Supreme authority in the conduct of the Union’s business during periods in between National Delegates Conference.”

Rule 18(iv), (v) & Rule 19(i) & (ii) of the 2nd Claimant’s Constitution [in its)] also authorizes the imposition of levies on members’ earnings, remunerations and benefits as follows:

Rule 18(iv):“The funds and properties of the Association shall be applicable for the purpose of attaining the object of the Association as defined in the Constitution”.

Rule 18(v): “The main source of the funds of the Association shall be monthly subscription, levies and proceeds of economic and social activities’.

Rule 19(i): “The National Delegates Conference or the National Executive Council or the Central Executive Council may impose whenever the state of the Association’s funds make (sic!) it desirable levies or other forms of financial contribution which shall be payable by such or all the members upon whom they are imposed”.

Rule 19(ii): “The National Executive Council may if it considers it necessary impose a levy upon all members of the Association. The members shall be required to pay such a levy….”

From the foregoing and with reliance on the legal framework and the constitutions of the claimant I find that the claimant were well within their rights and acting in accordance with the law with respect to the enabling law; Trade Union Act, their Constitutions and other documents of agreement the Claimants are empowered to raise funds to finance their activities through membership subscriptions and levies in accordance with their constitutions. And following the Resolution of the National Executive Council of the 1^st Claimant and the Resolution of the National Executive Council of the 2nd Claimant the 2% levy on the terminal benefit 1^st– 9th Defendants and others was valid and binding Questions 1 and 2 are answered in the Affirmative, issues 1 and 2 are resolved in favour of the claimant’s reliefs 1 and 2 accordingly succeed.

Question 3. And 4 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.

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.

And 3, regarding whether considering the virtue of the various Statements of Final Claims endorsed by 1st – 9th Defendants and other members, by 2% levy was lawfully and validly deducted and following their Job loss or for any reason 1st-9th Defendants entitled to a refund of their union dues and the 2% levy deducted from their final severance benefits.

These questions 2 and 3 relate to the rights and obligations of the union member with regard to use of their funds particularly the power to enquire as to the funds levied.
The claimant are entitled to the levy but the use of the levied funds must be used according to Section 15(1) of the TUA.

Section 15(1) provides that

“Unless the rules of a trade union otherwise provide, in so far as the funds of a trade union represent payments which the members are required to make under the rules, whether by way of subscriptions, dues or otherwise those funds shall not be applied to any (whether directly or indirectly or through any other union, association of body, or in any other indirect manner to the furtherance of any political objective….“

The Defendants being members of the Union are obliged to comply with Union directives especially NEC Resolutions, the question as to whether the deductions were validly made I find does not depend on any signed final statement, although the claimant did not provide the court with the signed or endorsed final statements of the first 9 defendants, the validity of the deductions would be determined by the resolution and is to be born out in the audit report. Having said that it is pertinent to point out that the Trade Union Act in Section 19, provides for 5 or more members to take action to protect union funds.

Section 19 Trade Union Act without prejudice to the right of any person having sufficient interest in the relief sough to apply for an injunction any unauthorized or unlawful application of the funds of a trade union, an injunction restraining any such application of the funds of the trade union may be granted by the appropriate High Court upon the application of the Attorney General of the Federation or of the Registrar of any five or more members of the Union.

The Supreme Court in ELUFIOYE Vs. HALILU [13] 6 NWLR 301 at 570 held that the right of members to bring an injunction to restrain any unauthorized or unlawful application of funds of the Trade Union comes under the 2^nd exception to the rule on FOSS V HARBOTTLE.
The position of the law allows the 1^st -9^th Defendants to take actions to protect their funds. The Learned Author Oladipo Ogunniyi in his book Nigeria Labour and Employment Law 2^nd Edition Folio Publishers Ltd Ikeja 2009 went on to state that ‘where what has been done amounts to fraud on the minority and the persons against whom the action may be brought are in control of the union and refuse the action to be brought in the name of the Union. In this case a member or members may be allowed to bring an action in their own names.

What all that means is that the 1^st to 9^th defendant are within their right to affect a challenge on the union in respect of the union monies to wit the 2% deductions. Although they may not be able to recover the money they are entitled to an account of the expenditure.
Their ability or otherwise of obtaining a refund is contingent on their obtaining an account of the details of the levy and where the account rendered to them in not satisfactory only then could the issue of refund arise.

Ordinarily parties are bound by their agreement but integral in agreement to collect money for a purpose is an incidental agreement to utilize the said monies of the purposes for which the money was collected or levies. What all that means is that it is only when the 1^st -9^th defendants have established a mis use of wrong use of their funds can they demand a refund, but in order to so establish the defendant would need an account and the Trade Union Act has provision for such an account rendering, for the above reasons I find. Question 3 and 4 are answered in the Negative, issue 3 therefore fails and reliefs 3, 4 and 5 cannot be granted.

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.

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

Question 5 and 6 related to the functions of the Registrar of the Trade Union the 10^th Defendant and the propriety of the actions of the 14^th Defendant.

The submissions of the claimant as regards the functions and role of the registrar of the trade union are on point and are upheld. In this court’s ruling of 14^th March 2017, this court held that By Section 1(2) (c) of the EFFC Act 201 is the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria. With the function of the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.; Section 6(b) and the special power to cause investigations to be conducted as to whether any person, corporate body or organization has committed an offence under this Act or other law relating to economic and financial crimes; Section 7(a).

The position of the law is as was stated in the unreported case of SUIT NO. NIC/LA/117/2011 MR. BABATUNDE OGUNSOWO v DANA MOTORS LIMITED delivered 10^th July 2013 where this court held that “This Court cannot gag the process of the administration of justice or due process in the manner prayed for by the claimant in relief. Also see the unreported case of SUIT NO: NICN/IL/04/2013 MR. OLOYEDE SUNDAY v LUBCON LTD & ANOR delivered 12^TH November 2014, where this court relied on the English case of DALLISON V CAFFREY [1965] 1 QB 348 Diplock LJ (as he then was) in considering the function of the police ‘to arrest’ described it as ‘Ministerial’ as opposed to judicial . See the case of OTERI v. OKORODUDU & ANOR NSCQLR [1970] page 303. And this court went on to hold that the Law Enforcement Agent (2^nd defendant) had a statutory duty to apprehend crime, and in so doing reserves the power to arrest, question interview and even detain persons in the course of their duty..

The rule of the 10^th defendants does not in anyway detract or overreach the statutory function of the 14^th defendant. These organzation are in no way conflicting afortori overlapping. The 10^th defendant is charged with the registration and administration of Trade Union and Trade Union matters and affairs. The 14^th Defendant I have described above. The claimant being subject to the 10^th defendant will not afford them an immunity to the investigatory role of the 14^th defendant where properly initiated.

Having said this, the claimants is at liberty to, in an appropriate court take appropriate action in the event that it find the action of the 14^th defendant excessive or undy obstructive or intrusive, as the 14^th defendant like all other agents of government operating under a constitution, are bound by the law.

These questions are answered in the Negative, issue 5 fails and hence Reliefs 6, 7.and 8 cannot be granted.

Reliefs 9 and 10 are for cost and damages in the light of both these reliefs also fail.

The Claimant case succeeds but only this far.

It is hereby declared 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.

It is hereby declared 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 1^st 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.