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National Industrial Court

Independent National Electoral Commission -VS- Association Of

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON MONDAY 10TH DAY OF DECEMBER, 2018

  BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI

SUIT NO: NICN/ABJ/326/2016

BETWEEN:

 

INDEPENDENT NATIONAL ELECTORAL COMMISSION …………………………………………………………..CLAIMANT

 

AND

 

ASSOCIATION OF SENIOR CIVIL SERVANTS ……DEFENDANT

 

J U D G E M E N T

The Claimant is a creation of the 1999 Constitution of the Federal Republic of Nigeria (as amended), a body corporate with statutory functions and powers to conduct elections.

  1. The summary of the Claimant’s case, as gathered from its Amended Complaint and Statement of Facts amended by the order of Court on 15/03/2018 to initiate the instant action is that, the Chairman of the Claimant received two letters written by the Defendant, wherein it demanded for deductions of check – off dues of 2 per cent from the basic salary of the Claimant’s staff of level 07 and above. It is the Claimant’s case further that none of its staff in any of the 36 states of the Federation is a member of the Defendant’s Association. The Claimant further contended that the Defendant can only request or demand for the deduction of check – off dues from monthly wages of Federal Government workers who have voluntarily joined the Association of the Defendant. The Claimant further alleged that the Defendant is forcefully making efforts to unionize staff of the Claimant by demanding for the check – off dues of the Claimant’s staff that have not voluntarily joined the Defendant’s union.

Whereof, the Claimant had claimed against the Defendant the reliefs set out as follows:

  1. A DECLARATION that the Defendant has no right or power or authority to demand from the Claimant, deducted check – off dues deducted from the monthly wages of unidentified, unknown persons who are alleged members of the Defendant’s union.
  2. A DECLARATION that the Defendant union has no right to direct, order or compel the Claimant to deduct check -off dues from monthly wages of its staff when the Defendant has no membership or organized membership within the staff of the Commission.
  3. A DECLARATION that the Defendant union cannot enforce its regulations on the Claimant’s staff when the Defendant has no established or recognized membership within the staff of the Claimant.
  4. The Defendant joined issues with the Claimant by filing its Statement of Defence on 02/11/2016 and later, by order of Court made on 15/03/2018 it filed an Amended Statement of Defence to which it also subjoined a Counter – Claim. The Defendant denied that it was forcefully making efforts to unionize members of staff of the Claimant who have not voluntarily joined the Association. The Defendant further contended that it is entitled to demand or request from the Claimant automatic recognition and deduction of check – off dues of 2% of the basic monthly salary of eligible members. It further contended that the Court had ordered the Claimant to deduct check-off dues from Defendant’s eligible members on Grade Level 07 and above and to remit same to the Defendant monthly.
  5. The Defendant by Counter-Claim further seeks the reliefs set out as follows:
  6. A DECLARATION that by virtue of Section 287(3) of the 1999 Constitution as amended, the Claimant/Defendant to Counter – Claim having persistently disobeyed orders of Court particularly of 6th October, 2008 is liable to remit to the Defendant the sum of N360,564,337.44 (Three Hundred and Sixty Million, Five Hundred and Sixty -Four Thousand Three Hundred Thirty Seven Naira, Forty Four Kobo Only) being amount of check – off dues deducted or deemed to be deducted from the Defendant/Counter Claimant’s eligible members from February 2014 to January 2018 but not remitted accordingly.
  7. AN ORDER of the court directing the Claimant/Defendant to Counter-Claim to remit to the Defendant/Counter Claimant the sum of N360,564,337.44 (Three Hundred and Sixty Million, Five Hundred and Sixty Four Thousand Three Hundred Thirty Seven Naira Forty Four Kobo Only) being the remittable check-off dues deducted or deemed to be deducted and held back by the Claimant/Defendant to Counter Claim from the Defendant/Counter-Claimant’s eligible members on Salary Grade Level 07 and above in the employ of the Claimant/Defendant to Counter-Claimant.
  8. 3. N20 Million damages for abuse of process as well as abuse of the process of court when the Claimant/Counter Claimant took out unwarranted action against the Defendant/Counter Claimant.
  9. Costs of this action

The Claimant’s Defence to Counter- Claim was filed on 21/03/2018 wherein it denied that it had money to be remitted and that it never frustrated the remittance of check-off dues which were never deducted from any of its members of staff.

  1. It is pertinent to place on record that when the suit was commenced in 2016, it was originally before the Honourable President of the Court sitting at Court 1 and was reassigned to this Court in 2017. Effectively, proceedings in the suit commenced in this Court on 08/11/2017.
  2. At the plenary trial, the Claimant called a sole witness by the name Alhassan Umar, Assistant Chief Legal Officer in the employment of the Claimant. He adopted his Statement on Oath as his evidence-in-chief and tendered in evidence a total of three (3) sets of documents as exhibits on behalf of the Claimant. He was thereafter cross-examined by the Defendants’ learned counsel.
  3. For the Defendant, one David Polang, State Secretary of the Defendant testified for the Defendant. He adopted his witness depositions on Oath and his further depositions on oath in support of his Amended Statement of Defence and Counter- Claim as his evidence-in-chief. He tendered five (5) sets of documents in evidence as exhibits and was equally cross-examined by the Claimant’s learned counsel.
  4. Even though the CW1 had concluded his testimony before the Defendant filed its Amended Statement of Defence and Counter Claim; he was however later recalled, with the leave of Court, to give evidence in defence of the Counter Claim wherein he adopted his Statement on Oath in Defence to the Counter Claim and he was subsequently cross examined by learned counsel for the Defendant.

At the close of plenary trial, parties filed and exchanged their final written addresses pursuant to the provisions of Order 45 of the Rules of this Court.

  1. In his final address filed on behalf of the Defendant /Counter Claimant on 27/06/2018, Johnson O. Esezoobo, Esq., of counsel, formulated nine issues as having arisen for determination in this case, namely:
  2. Whether in view of the order of the Court of 6th October, 2008 as well as the Court of Appeal Judgment of 19th November, 2007 and the Attorney General’s letter of 22nd June, 2010, the Claimant’s suit discloses any reasonable cause of action to invest the Court with the jurisdiction to entertain the same and grant the reliefs sought.
  3. Whether granting the Claimant’s claim will not negate the subsisting judgment and or order court of 6th October, 2008 as already enforced by the advice of the Attorney General of the Federation contained in the letters of 22nd June 2010 and 20th September, 2010 in evidence as Exhibits DD1 & DE1 and the Garnishee Orders of the Court, Esowe J.
  4. Whether in any event if the answers to issues 1 & 2 above are in the affirmative, the Claimant has discharged the onus placed on it by law to entitle it to judgment on the declarations claimed.
  5. Whether the Claimant/Defendant to Counter Claim has locus standi to institute this suit as constituted before the court and the same is not otherwise frivolous, scandalous and an abuse of the process of court.
  6. Whether the action of the Claimant/Defendant to Counter Claim instituted against the Defendant/Counter Claimant while the judgment debtor is in persistent disobedience of the judgments of court particularly of 6th October, 2008, Exhibit C is not an abuse of the process.
  7. Whether, if the answer to issue 5 above is in the affirmative, the court will not enforce the personal undertaking of counsel against the Claimant/Defendant to Counter Claim’s counsel in the sum of N5Million in accordance with the certificate of pre-action counseling attached to the originating process.
  8. Whether the Claimant as a judgment debtor who is in persistent disobedience of orders of court as well as the advice of the Attorney General of the Federation to enforce the judgment of court of 6th October, 2008 is entitled to audience on the Claim and the Counter Claim.
  9. Whether the Claimant/Counter Claimant has not established its case or discharged the burden placed on her by law to entitle her to judgment on its Counter Claim.
  10. Whether the Defendant/Counter Claimant is not entitled to recover from the Claimant/Defendant to Counter Claim or is not liable to damages in the sum of N20Million including the solicitor’s fees as claimed.
  11. For the Claimant, its final address was filed on 27/02/2018 and his learned counsel, Eyitayo Fatogun, Esq., distilled two issues as having arisen for determination in this suit, viz:
  12. Whether the Claimant is obligated under the Trade Union Act to pay check off dues to the Defendant on behalf of the employees of grade level 07 and above who are not members of the Defendant or who are not known to be members of the Defendants counsel (sic-union).
  13. Whether this Honourable Court can grant the Counter Claimant’s claim of the Defendant/Counter–Claimant in the circumstance of this case.

The Defendant/Counter Claimant thereafter filed, on 07/08/2018, Reply on Points of Law to the Claimant’s final address.

  1. Flowing from my understanding of the Claimant’s Claim, the Defendant’s Counter-Claim; the relevant evidence adduced at the trial, the arguments articulated in the parties’ final submissions and the totality of the circumstances of this case, the focal issues that call for resolution in my opinion, without prejudice to the issues raised by the parties, could be succinctly reframed as follows:
  2. Whether or not the Claimant has established its claim for this Honourable Court to award the declaratory reliefs being claimed.
  3. Whether or not there is a competent Counter-Claim before this Court; and if so, whether or not the Defendant is entitled to the reliefs claimed thereby.
  4. In proceeding to determine these issues, I should also state that I have given proper consideration to and taken due benefit of the final addresses filed by learned counsel for the respective contending parties, to which I shall endeavor to make specific reference as I consider needful in the course of this Judgment.

I would begin, by adverting to the technical and procedural issues raised by the respective learned counsel in their final addresses.

  1. ON CAUSE OF ACTION:

For the Defendant, the learned counsel had raised the issue as to whether the Originating process has disclosed a reasonable cause of action. As rightly submitted by the learned Defendant counsel, cause of action has been variously defined as a fact or set of facts which establish or give rise to a right of action; a factual situation which gives a person a right to judicial relief and it is the Claimant’s case that determines the cause of action. The learned counsel for the Defendant had also advanced copious arguments as to the competency of the action, Exhibits C1 and C2 relied upon by the Claimant, as the basis for seeking the declaratory reliefs; and that whether, demanding enforcement of order of Court of 06/10/2008 to which the Claimant has the obligation to enforce the judgement, it could be said that the suit is thereby competent.

  1. Mr. Ezezoobo, of learned counsel for the Defendant, citing the cases of Christian Okafor V Bendel Divisional Union, Jos Branch & 7 Ors (2017) 5NWLR Pt. 1449 Pg 285; Chevron (Nig) Ltd V Lonestar Drilling Nig. Ltd (2007) 16 NWLR Pt 1059 Pg 168 and Adimora V Ajufo (1988) 3NWLR Pt 80 Pg 1 had submitted that the Claimant’s Originating process discloses no reasonable cause of action and to make the declarations sought will negate the previous decisions of the Court.

Learned Defendant’s counsel contended that there cannot be a right of action that Exhibits C1 and C2 could have threatened or breached to found a cause of action if in writing the said exhibits, the Defendant was acting pursuant to a Statute which the Courts had interpreted and declared the rights and obligations of the parties.

On his own part, Mr. Eyitayo Fatogun submitted that a cause of action arose from the interaction of the parties which was actually initiated by the Defendant.

  1. With respect to the issue to the Defendant’s contention that the Claimant’s suit has no reasonable cause of action, I do not consider that the point should be over flogged or belaboured. As correctly argued by the Claimant’s learned counsel, an action of this nature in which the Claimant seek declarations relating to rights allegedly violated by the Defendant, cannot be said not to be justiciable or unreasonable. I am in no doubt that the suit raises triable issues worthy of being inquired into by the Court. Perhaps the Defendant would have opted not to defend the action should it be so convinced that the case has no reasonable cause of action, as it affects the union. But as it turned out, the Defendant filed a copious Statement of Defence to oppose the Claimant’s Complaint and further filed an Amended Statement of Defence to which it subjoined a Counter Claim which in itself presupposes that indeed the Claimant has raised certain issues worthy to be answered by the Defendant in the suit. The Claimant averred in paragraphs 7, 9 and 15 of the Amended Statement of Facts as follows:

“7” The Claimant avers that the Defendant is demanding deductions from the monthly wages of staff who are unknown to the Commission.

“9.” The Claimant further avers that the Defendant in its demand is forcefully making efforts to unionize staff of the Claimant, who have not voluntarily joined the association of the Defendant.

“15” That it is only the intervene (sic-intervention) of the Court that can rescue the Claimant from the insistent demand of the Defendant.

  1. These are the events that led to the reliefs sought by the Claimant which I had earlier reproduced at the commencement of this Judgment.  The case of the Claimant is clear from the facts therein. The reliefs sought without any doubt whatsoever are declarations seeking for the pronouncement of the Court to the effect that the Defendant union has no right to direct, order or compel the Claimant to deduct check-off dues from monthly wages of its staff and that the Defendant has no authority to demand for the deducted dues.
  2. I am therefore in agreement with the arguments of Mr. Fatogun that the Complaint/Claims of the Claimant against the Defendant in this suit are legally cognizable and can found an action in law. And I further agree that the Claimant has a reasonable cause of action to pursue in this suit. And I so hold.
  3. I shall deal with the objections raised by learned counsel for the Claimant to the admissibility of documents marked as DA1 – DA42, DD1 and DE1 and as they arise in the course of resolving the substantive issues as formulated.
  4. ISSUE ONE

The Claimant, having successfully scaled the hurdle of right of access to Court, it is to be considered in succession, whether, on the basis of the evidence placed before the Court, it has established its entitlement to the declaratory reliefs sought in this suit.

It is one thing for a party to have reasonable cause of action; it is another thing entirely for the party to be able to adduce sufficient evidence to sustain the cause.

In this connection, I am particularly mindful that the Claimant has sought declaratory reliefs in this suit; the implication being that the burden for it to prove the allegations leveled against the Defendant exceeds the regular burden provided in Sections 131 and 132 of the Evidence Act 2011.

  1. The settled position of the law, from time immemorial, is that even though the power to make a binding declaration of right is discretionary in nature; however a Court would only grant declaratory reliefs sought in an action principally on the basis of the evidence adduced by the Claimant without recourse to the evidence called by the Defendant. The burden of proof on the Claimant in establishing a declaratory relief to the satisfaction of the Court is somewhat heavy, in the sense that such relief is not granted even on the admission of the Defendant, as the Claimant must lead credible evidence in proof of the declaration of right he seeks from the Court. In other words, even though it is an elementary rule of pleadings that what has been admitted requires no further proof, one of the exceptions to that rule is that a declaratory relief cannot be granted without evidence; and it is not granted based merely on default of defence or on admission by the adverse party. Declarations are granted upon proof by cogent and credible evidence led by the Claimant/Plaintiff. See the authorities of Dumez Nigeria Limited V. Nwakhoba [2009] All FWLR (Pt. 461) 842; Ogolo V. Ogolo [2006] All FWLR (Pt. 313) 1; Motunwase V. Sorungbe [1988] 5 NWLR (Pt. 92) 90; Kwajaffa V. B. O. N. Limited [2004] 13 NWLR (Pt. 889) 146; Ndayako V. Dantoro [2004] 13 NWLR (Pt. 889) 187; Olabanji V. Omokewu [1992] 7 SCNJ 266.
  2. In the present case, the Claimant claimed three declaratory reliefs. The task that the Court is to undertake now, in the first instance, is to examine the evidence led on the record by the Claimant in order to determine whether or not it has satisfactorily established its entitlement to the declaratory reliefs claimed.
  3. Now, the totality of the evidence ventured by the Claimant in this suit is as contained in the Statement on Oath deposed to by the sole witness, Alhassan A. Umar, a Legal Officer in the Claimant’s employment. He deposed in paragraphs 5 and 6 thereof that the Defendant wrote a letter dated 03/03/2016 to the Chairman of the Claimant demanding deduction of check –off dues of 2 per cent from the basic salary of the Claimant’s staff of level 07 and above. He further stated that on 05/05/2016, the Defendant wrote a reminder to the Claimant through its Chairman. The said letters were admitted in evidence as Exhibits C1 and C2 respectively.
  4. As I had earlier stated, the crux of the instant case is based on these exhibits. It is imperative to reproduce part of the contents of these exhibits.

The relevant portion of Exhibit C1 reads:

“The leadership of the Association of Senior Civil Servants of Nigeria presents its compliments to the Chairman, Independent National Electoral Commission (INEC) and wishes to request the deduction of check-off dues of 2% of basic salary per member per month from the salaries of members of the Union on Grade Level 07 and above in the Commission.

  1. The Chairman will recall that the National Industrial Court (NIC), the Federal High Court, Abuja and the Court of Appeal, Abuja had, in separate rulings, ordered that the Association should be allowed to unionise its members in INEC.
  2. The Chairman will also recall that the continued refusal of INEC to obey the court rulings had forced the Association to initiate garnishee proceedings against INEC at NIC.
  3. It is necessary to state that the counsel to INEC had promised the Court that the Commission will henceforth allow the Association to unionise its employees in the Commission.
  4. It is against this background that we are once again requesting urgent deduction/remittance of check-off dues of staff on Grade Level 07 and above to the Association from February, 2014 to date in line with the NIC Judgment of 6th October, 2008.”
  5. It was stated in Paragraphs 1 to 3 of Exhibit C2 that:

“The Leadership of the Association of Senior Civil Servants of Nigeria presents its compliments to the Chairman, Independent National Electoral Commission (INEC), Professor Mahmood Yakubu and wishes to invite your attention to our letter ref. ASCSN/INEC/ABJ/VOL.II/77 of 3rd March, 2016 wherein we requested the statutory deduction of check-off dues of 2% of basic salary per member per month from the salaries of members of the Union in the Commission. (A copy of the letter is hereby attached for ease of reference).

  1. The import of the current correspondence is to remind you Sir to use your good office to ensure that INEC abide by/and implement the National Industrial Court judgment which directed that the Commission should deduct and remit check-off dues of staff on Grade Level 07 and above to the Association.
  2. It is necessary to state that members of staff of the Commission are public servants and it will not be proper to deny them of their fundamental right in the area of freedom of association as enshrined in the Constitution of the Federal Republic of Nigeria. Moreover, the Court has ruled in favor of the Union on this matter and it will be wrong to continue to act in disobedience of the ruling of the Court.”
  3. Other than stating that the Defendant wrote the said letters to the Chairman of the Claimant, wherein it demanded deduction of check – off dues of 2 per cent from the basic salary of the Claimant’s members of staff of level 07 and above, the Claimant failed to produce any iota of evidence to establish firstly, that the Defendant is a voluntary union which does not require staff above level 7 within Federal Government ministries and agencies to join compulsorily or compelled to be a member; or secondly to demonstrate how the Defendant in its demand is forcefully making effort to unionize staff who have not voluntarily joined the association of the Defendant as it alleged.

Furthermore, the Claimant pleaded that none of its staff has come up to claim membership of the Defendant even after various calls to this effect through respective Heads of Department but it failed to establish when and how the purported calls for membership were made.

  1. In my estimation, the depositions in the Witness’ Statement on Oath is no more than a repetition of the facts pleaded in the Amended Statement of Facts.

The position of the law is that averments in a pleading do not constitute evidence or proof. See Arabambi V. Advance Beverage Industries Limited [2005] 19 NWLR (Pt. 959) 1; C. A. P. Plc. V. Vital Investment Limited [2006] 6 NWLR (Pt. 976) 220.

  1. It seems to me that the learned Claimant’s counsel realized the fact that the witness had not proved its case and thus in his final written address, learned counsel for the Claimant made frantic effort to make a different case for the Claimant contrary to that which was in its Amended Statement of Facts and upon which evidence was adduced. Thus, the learned Claimant’s counsel stated in his written address that the evidence of Alhassan Umar was to the effect that:

“a. There are no members of the Defendant unions in the employment of the Claimant

  1. The Claimant is not disturbing or restraining anyone from joining the Defendant union
  2. By virtue of Section ….(sic) of the Trade Union Act, membership of the Defendant is now voluntary unlike in the past when it is compulsory.”
  3. It has been stated time without number that the address of counsel is no more than a handmaid in adjudication and cannot take the place of the hard facts required to constitute credible evidence. No amount of brilliance to a final address can make up for the lack of evidence to prove and establish or to disprove and demolish points in issue. See Michika L. G. V. National Population Commission (1998) 11 NWLR Pt. 573 Pg 201; Bwanle Tapshang V. Daluk Lekret (2000) 13 NWLR Pt. 684 Pg 381; Buhari V. Obasanjo(2005) 13 NWLR Pg 286; Taiwo V Osunlabu (2017) LPELR 43739 Incorporated Trustees of the Brotherhood V     (2018) LPELR 44087;
  4. The documents placed before the Court was the letter of demand and the letter of reminder. I have taken a careful consideration of the said Exhibits C1 and C2 within the facts placed before the Court. The averments in the Statement of Facts are facts or should be facts to which the court is bound to apply the relevant law. The learned Claimant’s attempt to ‘conjure’ evidence to support the Claimant’s case in his written address cannot help the Claimant’s case. It would certainly amount to a denial of fair-trial occasioning a miscarriage of justice to allow a learned counsel to smuggle unverified evidence on to the summation of the case at final address. That would also be unfair and unjust to the Court in that the Court will be deprived of a level playing ground from which platform to give a well-balanced and even justice in its evaluation of the evidence placed before it.
  5. Therefore, since the totality of the semblance of evidence adduced by the CW1 is more or less a bare repetition of the averments in the Amended Statement of Facts, it cannot be said that the Claimant has by any means proved its claim for the declaratory reliefs. And I so hold.
  6. Furthermore, the Defendant in its Amended Statement of Defence raised the issue of abuse of court process in paragraphs 23 and 24 where it was stated as follows:

“23. Upon the foregoing averment, the Defendant/Counter Claimant ascertained the amount remittable to her by the Claimant as check –off dues at N225, 352,710.90 on the basic of 2% of the basic salary of each of the eligible staff from the period February, 2014 to July 2016 and engaged the Claimant in a discussion for remittance in enforcement of the judgment of the Court of 6th October, 2008. But in a curious development, the Claimant who pleaded for time during the discussion to comply and pay, suddenly rushed to Court to forestall the remittance or payment.

  1. In the premise of the matters hereinbefore pleaded, it shall be contended that the Claimant’s suit is a gagging writ taken out in bad faith to frustrate the enforcement of the orders of Court and aimed at annoying and vexing the Defendant by putting her through unnecessary costs of litigation. WHEREFORE, the same is most unwarranted and an abuse of the process. (Underlining mine)

Learned Defendant counsel had submitted that it is an abuse of court process for the Claimant to initiate the instant suit when the Court had settled the issue of automatic or compulsory deduction of check – off dues from eligible members.

  1. It is settled law that the issue of an abuse of Court process is a complete defence that can be raised by the Defence to challenge the competence of the Claimant’s action or the jurisdiction of the Court to entertain same. See Usman V. Baba (2005) 5 NWLR Pt 917 Pg 113; Kashamu V A.G. Federation (2013) LPELR Pg 22357
  2. Now, in considering what constitutes abuse of Court process, the Supreme Court in the case of CBN V. Ahmed (2000) 11 NWLR (Pt. 724) Pg. 369 at 372 held thus:

“Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. For instance, the re-litigation of already decided issues is an abuse of Court’s process, even if the matter is not strictly res judicata.”

See also Amaefule V. The State (1988) 2 NWLR (Pt. 75) 156;
Arobo V. Aiyeleru (1993) 3 NWLR (Pt. 280) 126

  1. An abuse of Court process could be said to have occurred in one or more of the following situations.

(a) Where the parties, subject matter and the issues in the previous and the latter suits are the same. U.B.N. Plc. v. Edamkue (2004) 4 NWLR (Pt. 863) 221, (2004) 34 WRN 50, 71
(b) Where different actions based on the same facts between the same parties are filed in the different Courts or even the same Court simultaneously in respect of the same right and subject-matter: Benaplastic Industries Ltd. v. Vasilyev & Ors. (1999) 10 NWLR (Pt. 624) 620
(c) Where a party litigates again on the same issue which has already been litigated upon between him and the same person on facts on which a decision has already been reached: Fasakin Foods (Nig.) Co. Ltd. v. Shosanya (2003) 17 NWLR (Pt. 849) 232, 247; Arubo v. Aiyeleru (supra).

(d) Where the proceeding is wanting in bona fides, or is frivolous, vexatious, oppressive or amounts to abuse of legal procedure or improper legal process. Amaefule V. The State (1988) 2 NWLR Pt. 75 Pg 156

See Ukachukwu V. Uba (2005) 18 NWLR (Pt. 956) page 1 at 63.

The instant case falls squarely under items (c) and (d) above.

  1. Under cross-examination by Mr. Esezoobo, learned counsel for the Defendant, CW1 testified that:

“I was in service in 2008 when this Court ruled that check-off dues should be deducted from the workers (level 7 and above) The Defendant has a copy of the Ruling of 06/10/2008”

To further establish that there is a valid and binding order of the Court for the Defendant to deduct check-off dues from the Claimant’s eligible members of staff, a series of document containing certified true copies of the judgment and rulings of this Honourable Court and the Court of Appeal was admitted as Exhibit C3.

By the said Exhibit C3, this Honourable Court in Suit No NIC/10M/2003 delivered on 06/10/2008 ordered the Claimant and the Attorney General of the Federation; “to give effect to the judgement of this Honourable Court in Suit No NICN/5/93 delivered on 27th June 1995 by paying forthwith to the Applicant (the Defendant in the instant suit), check-off dues deducted from all eligible members on grade levels 07 and above in accordance to the said judgement.”

Whilst answering further questions from Mr. Esezoobo, the CW1 admitted as follows:

“I am aware that pursuant to the judgement of Federal High Court there was an order by National Industrial Court to deduct some amount of money that were computed by the Defendant”

  1. What these pieces of evidence, as extracted from the CW1 under cross-examination, particularly as revealed in the series of document, Exhibit C3, established is that on the one hand the judgments and rulings of this Court as well the Court of Appeal had at various times in the past been ordered against the Claimant to deduct check-off dues and remit same to the Defendant; and on the other hand the Claimant turned round and refused to obey the valid orders of the Courts and allege that none of its staff are members of the Defendant union.
  2. As rightly submitted by Mr. Esezoobo, it is trite law that a judgment or finding of a Court of law is valid until it is set aside. See Aladegbemi V. Fasanmade (1988) 3 NWLR (Pt 81) 129; Sanni V. Olateju (2013) LPELR 21377

The Order of this Honourable Court in Suit No NIC/10M/2003 delivered on 06/10/2008 is subsisting and valid as it has not been set aside by the Court or an Appellate Court. It binds all parties and the Court itself. See S.P.D.C. Ltd V. X.M Ltd (2006) 16 NWLR (Pt. 1004) 189; Agoro V. Hon Minister of Federal Capital Territory (2018) LPELR 44452

  1. Mr. Fatogun had submitted that none of the judgments relied upon by the Defendant took into cognizance the new innovation by the Trade Union Act (as amended) which was the basis for the judgments tendered by the Defendant. This is turning a blind eye to the obvious. The counsel is very much aware that the said judgement is binding and valid until same is set aside by this Court or the Appellate Court. There is no record before this Court that the judgement has been appealed. It constitutes an abuse of process for the Claimant to raise a suit against the same Defendant on the same subject matter and on issues which have been previously decided between the Claimant and the Defendant by this Honourable Court and when the Claimant has flagrantly refused to obey the order of
    Court.
  2. I am thus inclined to agree with the learned Defendant’s counsel and subscribe to the standpoint that in such a given circumstance, the process of the Court if allowed would have been used mala fide, improperly and would negate the subsisting order of Court delivered on 06/10/2008. That being the case, and without any further ado, my conclusion and Judgment is that the Claimant’s action is frivolous and vexatious; and indeed devoid of any merits or substance whatsoever. It must be and is hereby accordingly dismissed.

ISSUE TWO

  1. In resolving this issue, permit me to first deal with the issue of admissibility of the documents, marked as Exhibits DA1 – DA42, the State by State eligible members and the sum remittable by Claimant to the Defendant.

In proof of its case, the Defendant/Counter –Claimant relied on a computation stating a State by State check-off dues due for remittance by each State to the Defendant/Counter – Claimant marked as Exhibits DA1 – DA42. These documents were apparently electronically generated evidence; but no foundation whatsoever was laid for their admissibility and reliance as required by the well known provisions of Section 84(4) of the Evidence Act 2011.

The intendment of the draftsmen is explicit, clear and understandable. In construing these provisions, the Court cannot look outside or beyond the clear words used therein; or be tempted to add, remove or substitute its views with those provisions. In Agwuna Vs. AG Federation [1995] 5 NWLR (Pt.396) 418, 418-435, the Supreme Court held, per Iguh, JSC (as he then was) that:

“… a court of law is concerned with law, as it is, and not with law, as it ought to be. Accordingly, it is not the business of the court of law, indeed, a court of law is not permitted to ascribe meanings to the clear, plain and unambiguous provisions of a statute in order to make such provisions conform with the court’s own views of their meaning or of what they ought to mean in accordance with the tenets of sound social policy. .. I do not conceive that it is the duty the courts by means of ingenious arguments or propositions to becloud, change, qualify or modify the clear meaning of the provisions of a statute … once such provisions are plain, unequivocal and unambiguous. ..”

See also AG Lagos State Vs. Dosunmu [1989] 3 NWLR (Pt. 111) 552 @ 578-579.

  1. Having failed to satisfy the requirements relating to admissibility of electronically generated documents in this regard, the said documents are hereby declared inadmissible and as such I hereby expunge them from the records of proceedings in the suit.
  2. I now turn to the Counter Claim of the Defendant whereby it claimed principally declaratory relief, remittance of check-off dues deducted or deemed to be deducted by the Claimant from the Defendant’s eligible members and the claim for damages.
  3. I have examined the totality of the evidence adduced by the Defendant’s sole witness, Mr. David Polang, and it would seem to me that the Defendant’s visible grudge against the Claimant is the failure, refusal and/or neglect of the Claimant to deduct check off dues from eligible members of the Claimant in the Defendant’s union as ordered by the judgement of this Honorable Court.
  4. The case of the Defendant is that “eligibility is what qualifies a worker for membership of a trade union. In other words, there is no legal requirement for a consent form or any formal authorisation to be a member, as membership “is deemed, hence by the principle of automatic deduction of check – off dues, the Defendant/Counter-Claimant is entitled to demand remittance or payment of check – off dues of about fifteen thousand eligible members from the Claimant.

The Defendant further testified that the Claimant is obligated to enforce the judgement of the Court of 06/10/2008 and that it was due to the persistent refusal of the Claimant to obey the order of Court that the Defendant wrote several letters inclusive of Exhibits C1 and C2 and that it visited the Claimant in its headquarters and its respective state offices with a view to securing enforcement of the orders of the Court.

  1. The answer by the Claimant in Paragraphs 3 and 4 of its Defence to Counter-Claim is that all the judgments referred to and exhibited by the Counter-Claimant do not represent the present position of law. CW1 also testified while answering questions under cross examination that he was in the service of the Claimant when the Court ordered that check-off dues should be deducted from the workers of the Claimant from level 7 and above.
  2. The implication of this is that the Claimant admitted that there is a valid and binding judgement which is enforceable by the Defendant but the contention of the learned Claimant’s counsel however, is that by the amended provision of the Law, they are not members of the Defendant union, whether in law or in fact; and that they have an unfettered right to join or not to join the Defendant union.
  3. It is settled law that a decision or judgment of a Court of competent jurisdiction subsists until it is set aside by the Court itself or by a higher court on appeal. See Babatunde V. Olatunji (2000) 2 NWLR (Pt. 646) 557. There are no facts on record that the judgement of this Honourable Court in Exhibit C3 that is, Suit No NIC/10M/2003 delivered on 06/10/2008 has been appealed. I therefore find and hold that the said Judgment remains valid and binding on the Claimant until same is set aside.
  4. The Defendant had equally in its Counter-Claim claimed for order of this Court directing the Claimant to remit the check-off dues deducted by the Claimant from its senior staff.

My earlier decision is that the Exhibits DA1- DA42 which the Defendant/Counter-Claimant relied upon to proof its case to the sum being claimed is inadmissible.

  1. This being the case, the totality of the oral and documentary evidence which the Defendant/Counter-Claimant assiduously mustered to establish that the Claimant is entitled to remit the assessed sum of N360,564,337.44 (Three Hundred and Sixty Million, Five Hundred and Sixty-Four Thousand, Three Hundred and Thirty Seven Naira, Forty Four Kobo) has not been proved. And I so hold.
  2. Furthermore, the Defendant/Counter-Claimant had pleaded in paragraph 13 of its Counter-Claim the judgments of the Court and the letter by the Attorney General of the Federation. In the paragraph 14 of the Witness Statement on Oath DW1 testified as follows:

“That I also verily believe that since the issues raised by the Claimant/Defendant to Counter-Claim have been settled in earlier judgments between the parties, the suit by the Claimant/Defendant to Counter Claim is vexatious and the Court lacks the jurisdiction to entertain it.”

Attached to Exhibit C3 is the letter dated 22/06/2010 of the Attorney of the Federation written to the Chairman of the Claimant by which it advised the Claimant to obey the judgements and order of the Court.

Also attached to Exhibit C3, is a copy of the Ruling of this Court in Suit No NICN/10M/2003 delivered on 27/05/2014. The Honourable Court ordered inter-alia as follows:

“IT IS HEREBY ordered that the Garnishee order Nisi made by this Honourable Court on 13th February, 2014 be and is hereby made absolute.

IT IS FURTHER ordered that the sum of N183,908,687.81k set aside by the Garnishees by virtue of the Garnishee order nisi of 13th February, 2014 shall be paid by the Garnishees to the judgement creditor forthwith.”

  1. Now, having regards to the Garnishee Order, can the Counter- Claimant seek for an order of this Court directing the Claimant to remit the sum claimed? Or to put it in another way is the Counter-Claim not an attempt to irritate and abuse of the process of this Court process?

I had earlier stated in this judgement the situations where abuse of court process could occur. The Counter-Claimant herein is re -litigating on the same issue which has already been litigated upon between him and the Claimant on facts on which a decision has already been reached. See Fasakin Foods (Nig.) Co. Ltd. V. Shosanya (supra); Arubo V. Aiyeleru (supra).

  1. It is my firm decision that the Counter- Claim is frivolous, vexatious and oppressive, it amounts to abuse of legal procedure or improper legal process.

As such, I must hold that Defendant/Counter-Claimant’s claim against the Claimant for remittance of the sum of N360,564,377.44 (Three Hundred and Sixty Million, Five Hundred and Sixty-Four Thousand, Three Hundred and Thirty Seven Naira, Forty Four Kobo) is hereby dismissed.

  1. The Defendant/Counter–Claimant also claims for damages and cost of this action. I refuse the Defendant/Counter-Claimant’s claims for legal fees and expenses. The same, together with the consequential relief for damages shall be and are hereby accordingly dismissed.
  2. In the final analysis, the Defendant’s Counter-Claim against the Claimant is hereby dismissed in its entirety.

I make no orders as to costs.

 

SINMISOLA O. ADENIYI

(Presiding Judge)

10/12/2018

Legal representation:

Eyitayo Fatogun Esq.with Messers A.Anyogu, F. Akinmusuti, I. Nwabuoku for Claimant

Johnson Esezoobo Esq. for Defendant/Counter-Claimant

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