INCORPORATED TRUSTEE OF CONFERENCE OF SECONDARY SCHOOL TUTORS & NIGERIA UNION OF TEACHERS (KEBBI STATE WING) & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP: HON. JUSTICE LAWAL MANI, PhD.

DATE: 25^th January, 2018 SUIT NO: NICN/KN/14/2015

BETWEEN:

INCORPORATED TRUSTEE OF CONFERENCE OF

SECONDARY SCHOOL TUTORS (for & on

Behalf of all members of Conference of

Secondary Schools Tutors, Kebbi State

Chapter)

IBRAHIM BARBA
MOHAMMED AWWAL ABUBAKAR
KUDU ABUBAKAR CLAIMANTS
SHEHU BAGUDU
MAINASARA DAN ABASHE
MOHAMMED SANI MATSERI
ISAH ADAMU GULMA (For themselves and on behalf of

Kebbi State Secondary School tutors)

AND

NIGERIA UNION OF TEACHERS (KEBBI STATE WING)
MINSTRY OF EDUCATION, KEBBI STATE
MINISTRY OF SCIENCE AND TECHNOLOGY, KEBBI STATE
MINISTRY OF FINANCE, KEBBI STATE DEFENDANTS
KEBBI STATE JOINT NEGOTIATION COUNCIL
ATTORNEY GENERAL AND COMMISSIONER

FOR JUSTICE, KEBBI STATE

NIGERIAN LABOUR CONGRESS, KEBBI STATE COUNCIL
THE CHIEF REGISTRAR, KEBBI STATE JUDICIARY

REPRESENTATIONS:

Garba Abubakar Shehu Esq. ……………………..for the claimants

P.O. Oshoture Esq. ……………………………………for the defendants

JUDGMENT

INTRODUCTION:

By originating summons dated 12^th day of June, 2017, the claimants sought the following reliefs:

A declaration that the 1^st claimant has a civil right to exist and does exist from 9^th March, 2001 for the purpose of its objectives as incorporated under the Companies and Allied Matters Act, 1999.
An order of perpetual Injunction restraining the defendants by themselves, their agents, privies, servants or officers of whatever designation from further deducting or allowing, causing or counseling the deduction whether as check-off dues or by whatever name called from the salaries and wages of the claimants for the benefit of the 1^st defendant unless as may be expressly authorized by any member of the 1^st claimants individually in writing.
A declaration that any deductions or infractions from the wages and salaries of the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th 8^th claimants and all members of the 1^st claimants or any one of them for any purpose whatever without their/his consent and approval in writing is unlawful and therefore refundable.
A declaration that the 1^st defendant is not entitled to any check-off dues deducted from salaries of the claimants and members of 1^st claimants from 19^th June, 2006 not being members of the union.
A declaration that the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th claimants and all members of the 1^st claimant have a civil right to choose or to join any union of their choice without interference by the 1^st defendant.
A declaration that the claimant and all members of Conference of Secondary Schools Tutors Nigeria (COSST) in Kebbi State are entitled to a reimbursement of all deductions from their wages and salaries amounting to over SEVNTY ONE MILLION, ONE HUNDRED AND EIGHTEEN THOUSAND, ONE HUNDRED AND SIXTY-SEVEN NAIRA, THIRTY FIVE KOBO (N71, 118, 167.35) being deductions without their consent from October 2013 to May 2015 when the claimants through the 2^nd to 8^th claimant effectively notified the defendants through the 2^nd defendant to stop remitting their monthly subscriptions to the 1^st defendant.
An order of this Honourable Court directing the 7^th and 8^th defendant to pay back to the claimant the sum of SEVENTY ONE MILLION, ONE HUNDRED AND EIGHTEEN THOUSAND, ONE HUNDRED AND SIXTY SEVEN NAIRA, THIRTY FIVE KOBO (N71, 118, 167.35) remitted or paid over to it on account of the claimants and all members of the 1^st claimant by 4^th defendants from October 2013 to May 2015, now in their custody to the members of 1^st claimants through their authorized representative.

The originating summons was accompanied with an affidavit sworn to by one Ibrahim Garba, male, muslim, citizen of Nigeria of Nagari College, Birnin Kebbi, Kebbi State. Several documents were annexed in support of the summons.

CLAIMANTS’ AFFIDAVIT

In the affidavit in support of the originating summons, the claimants averred that the 1^st claimant is the Incorporated Trustees of Conference of Secondary School Tutors (COSST) otherwise called Academic Staff Union of Secondary Schools under whose name the 1^st claimant is applying to be registered as a Trade Union with existing chapter in Kebbi State. That the 2^nd to 8^th claimants are officials of Conference of Secondary Tutors (COSST) in Kebbi State who have already formed a local chapter of their National Body. That the 1^st defendant (NUT) is a registered trade union in Nigeria with a State wing in Kebbi State while the 2^nd and 3^rd defendants as the supervisory of all primary and secondary schools teachers of Kebbi State. The 4^th defendant is responsible for the payment of salaries of all members of the 1^st claimant in Kebbi State while the 5^th defendant received cheques raised by the 4^th defendant from the del motion made by the 4^th defendant from the salaries of the members of the 1^st claimant and the 6^th defendant is the Chief Law Officer of Kebbi State. The 7^th defendant kept all the check of dues for the months of October 2013 to May 2015 illegally deducted from the salaries of the claimants and all members of 1^st claimant in its amount No. 1011674512 with Zenith Bank Plc, Birnin Kebbi. That the 8^th defendant directed the Kebbi State Head of Service to direct the release of the check of dues from the months of October 2013 to May 2015 illegally deducted from the salaries of the claimants and all members of 1^st claimants and kept in the Bank Account of the 7^th defendant to which the 7^th defendant did comply.

The claimants also averred that after a long association with the 1^st defendant, the Secondary School Tutors of Nigeria (including Secondary School Tutors of Kebbi State) believed that their interests are not protected by the 1^st defendant. That as a result of this development, Secondary School Tutors met and formed themselves into a body corporate known as Conference of Secondary School Tutors (COSST) which has already been registered with the Corporate Affairs Commission as a corporate body. That this right of Secondary School Tutors has been recognized by many states of the Federal Republic of Nigeria except Kebbi State Government and more particularly the 1^st to 4^th defendants. That the 1^st and 2^nd defendants have failed and or neglected to recognize the rights of Kebbi State Chapter of Conference of Secondary School Tutors (COSST). That it is the desire of Secondary School Tutors in Kebbi State to cease to be members of the 1^st defendant (NUT) and to now belong to conference of Secondary School Tutors (COSST).

That in furtherance of their desire to contract the claimants urged the 1^st defendant to stop collecting the check off dues of the claimants from the 2^nd, 3^rd and 4^th defendants but the 1^st defendant ignored the warning from the claimants and went ahead collecting the aforesaid check-off dues. That the check-off dues of the claimants were deducted from source by the 4^th defendant from the claimants’ salaries and remitted to the 1^st defendant despite the fact that they no more belong to the 1^st defendant’s association by the notice served on 1^st defendant. That as free citizens of Nigeria, the Secondary School Tutors (COSST) as a legitimate body.

Claimants also stated that the 1^st defendant is presently refusing or rather challenging the claimants from exercising their legal right of associating with Conference of Secondary School Tutors (COSST) as a body and at the same time taking away the claimants’ check-off dues to the detriment of the claimants who are no more members of the 1^st defendant. That the defendants have no reason whatsoever to prevent the claimants from expressing their legal right, that pursuant to their intention and desire to join Conference of Secondary Tutors (COSST) the claimants and other members of Secondary School Tutors in Kebbi State whom they represent served the 1^st defendant with their notice of withdrawal of their membership from their union but the 1^st defendant’s officials refused service. That the claimants and all members of 1^st claimant (i.e Secondary School Teachers in Kebbi State) have individually written letter of withdrawal to the Executive Secretaries of the then Secondary School Management Board (SSMB) Science and Technical Education Board. That all members of the 1^st claimant mandated 2^nd to 8^th claimants to represent them.

That sometimes in June 2006 the claimants were served with a purported Resolution of the NUT (1^st defendant) where the claimants became satisfied that their right to exist and contract out of the 1^st defendant is under threat. The claimants have their constitution governing their association, in which no clause operates to cause any disharmony within and outside Nigeria to warrant any refusal on the part of the defendants.

That in the legitimate pursuit of their registration as trade union obtained the approval of the Hon. Minister of Labour to Registrar of Trade Union to be registered as Academic Staff of Secondary schools (ASSUS). The 1^st defendant’s National body filed an action before the Federal High Court challenging the approval. That sometime in the month of October 2013 one Aminu Usman from the office of the 6^th defendant wrote a letter to His Excellency, the Deputy Governor of Kebbi State advising him to direct the stoppage of remitting check-off dues to the COSST/ASSUS against the clear orders of Kebbi State High Court of 16^th March 2007. Consequently, all cheques raised by the 4^th defendant were remitted to the 5^th defendant to be kept in an Account opened by the 7^th defendant. Now the part of the wages/salaries of the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th claimants and all other members of 1^st claimant has been deducted and kept with the 7^th defendant from the month of October, 2013 to May, 2015. That the 7^th defendant was directed to release the money to the 8^th defendant which it did vide letter dated 11^th June, 2015.

That all members of 1^st claimant now mandated 1^st– 8^th claimants to represent them in this action. That if the prayers of the claimants are refused, the claimants will be greatly prejudiced in that their hard earned salaries shall continue to be deducted and remitted to the 1^st defendant where they are not members and cannot benefit from same at all.

1^ST AND 7^TH DEFENDANTS COUNTER AFFIDAVIT.

In their response to the affidavit in support of the originating summons, the 1^st and 7^th defendants filed their Counter Affidavit dated 29^th day of June, 2017 annexed to which are several annexures. The Counter Affidavit was sworn to by one Lawal Ibrahim Kangiwa, male, Adult of Lango Sule Government Secondary School, Kangiwa, Kebbi State.

In their counter affidavit the 1^st and 7^th defendant averred that the 1^st-7th claimant and all secondary school teachers in Kebbi State are members of the 1^st defendant in Kebbi State. That the 1^st defendant is the only legally recognized Trade Union registered to unionize Primary and Secondary School Teachers in Nigeria and Kebbi State in particular. That all secondary School Teachers in Kebbi State are employed by the 2^nd defendant. That since the registration and recognition of the 1^st defendant, it has performed it statutory duties of protecting the interest of all teachers, especially in labour and employment matters in Kebbi State. That in addition, the 1^st defendant is also ensuring the welfare of all teachers in Kebbi State. That there is a total of 6, 183 Secondary School Teachers in Kebbi State.

That the Kebbi State Government refused to recognize the 1^st claimant as a Trade Union because it is not a registered Trade Union under the Trade Union Act. That contrary to paragraphs 12 and 13 of the supporting affidavit, no teacher or any authority wrote to the 1^st defendant to stop collecting check-off dues from its members who are secondary School teachers. That contrary to paragraph 14 of the supporting affidavit, no one communicated the grievances of 1^st – 8^th claimants to the 1^st defendant, which is entitled to check-off dues from the salaries of all its members as a matter of legal right.

That contrary to paragraph 15 of the supporting affidavit, the 1^st defendant was never served with either Exhibits R1 to 96 nor any other document intimating it of the 1^st – 8^th claimants or any group of people’s intention to contract out of 1^st defendant. That the claimants never gave any warning to either the 1^st or 2^nd defendant to refrain from deducting or collecting check-off dues from the salaries of secondary school teachers. That the 1^st defendant has never challenged the right of the claimants to freely associate. However, the 1^st defendant challenged and still challenges the right of the 1^st claimant to transform into a Trade Union and collect check-off dues. That the 1^st defendant challenges the right of the 1^st to 8^th claimants to cajole and mobilize secondary school teachers to contract out of the 1^st defendant en masse. That there was never a time when the claimants served the 1^st defendant with a Notice of withdrawal. That Exhibit D1- D89 were never addressed to the 1^st defendant or any other authority and it is being fraudulently used for a purpose it was never meant to serve.

That no member of the 1^st defendant whether secondary school teachers or primary school teachers has individually written to the 2^nd defendant who is the Employer of Teachers in Kebbi State. That sometime in 2014 the Solicitor-General of Kebbi State realized that the claimants were being paid check-off dues whereas they are not a Trade Union, hence, he advised the Kebbi State Government to stop payment of the check-off dues. That part of the wages of the claimants referred to in paragraph 40 of the supporting affidavit is actually check-off dues deducted from salaries of all secondary school teachers and kept in the account of the 7^th defendant between October 2013 to May 2015, pending the outcome of the 1^st defendant’s appeal before the Court of Appeal, Sokoto Division. That the 1^st defendant’s appeal succeeded hence the 8^th defendant who is the Chief Sheriff of Kebbi State asked the 7^th defendant to deposit the money with the registry of the High Court of Kebbi State for onward transmission to the 1^st defendant. Consequently, the 8^th defendant released the cheque of dues to the 1^st defendant who is the legally registered and recognized Trade Union to receive check-off dues from teacher’s salaries in Kebbi State. That the judgment of the Court of Appeal, Sokoto Division still subsists as no one has appealed against same up till this moment.

That the deduction of the check-off dues from salaries of secondary school teachers in Kebbi State and payment of same to the 1^st defendant is lawful on the 1^st defendant as a trade union registered to unionize all teachers in Kebbi State. That the check-off dues are being used to run and maintain the 1^st defendant to ensure its smooth administration. That notwithstanding the problems the claimants are causing the union, the 1^st defendant still maintains the Zonal Government of secondary Schools in Kebbi State to date. That it is in the interest of justice to dismiss this application as the claimants shall not be prejudiced by the dismissal thereof.

CLAIMANTS’ WRITTEN ADDRESS

In support of Originating Summons, the claimants filed a written address dated the 12^th day of June, 2017.

Learned Counsel to the claimants started by stating that the applicants brought this originating summons for the interpretation of S.39, 40 and 41 of the constitution of the Federal Republic of Nigeria, 1999, S. 3 (a) and (b) and 5 (4) of Labour Act, and S. 2 of the Trade Union Amendment Act, 2005. Learned Counsel formulated four issues for the determination of this court, viz:

Whether the registered trustees of conference of Secondary School tutors (COSST) as a registered corporate body and has a right upon incorporation on 9^th March, 2001 under part C of Companies and allied Matters Act (CAMA) to exist for the purpose of achieving and actualizing its corporate objectives and can represent its members in this case.
Whether the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th claimants and all members of the 1^st claimants could suffer deduction from wages and salaries without their consent and approval under S. 3 (a) and (b) and S. 4 of Labour Act read together with S. 2 of the Trade Union Amendment Act, 2005.
Whether on a proper construction of S. 39, 40 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and S. 2 of the Trade Union Amendment Act 2005, the claimants have a civil right to contract out of the 1^st defendant, Nigerian Union of Teachers and join any association or Union of their choice other than the 1^st defendant.
Whether it is first and equitable for the 1^st, 2^nd, 3^rd and 4^th defendants to attach and continue to attach the salaries of individual teachers (or any part thereof) and/or salaries of all the members of 1^st claimants who have not subsrubed to the membership of the 1^st defendant and remit same to the account of the 1^st defendant.

On issue 1, learned counsel to the claimants submitted that the 1^st claimant has from 9^th March 2001 become a legal personality and that it can carry out lawful activities for the benefit of its members, relying on the case of ONUEKWUSI V. R.T.C.M.Z.C. (2011) 6 NWLR (PART 1242) 341 AT 363-365 and ANOZIA V. A.G. LAGOS STATE (2010) 15 NWLR (PART 1216) 202 AT 239. Counsel also submitted that in view of the above and the purpose for which the first claimant was formed it can effectively represent its members, urging this court to resolve the issue in favour of the applicants.

On issue 2, Learned Counsel submitted that the basis of deducting wages of an employee is his voluntary membership of the trade union he chose to join. The moment he notifies the union in writing that he withdraws his membership nobody has a right to deduct his salary and pay to the said association he withdrew from, relying on S. 5(a) of the Labour Act. Counsel continued that there is no time the claimants and all members of the 1^st claimant accepted in writing to make voluntary contribution to the 1^st defendant, but the 4^th defendant has been deducting their wages illegally and has been paying it to the 1^st defendant without their consent, which is illegal and unlawful, urging the court to so hold and resolve this issue in favour of the claimants. That in the instant case, the claimants have individually written to the 1^st defendant as well as the Employers of the Secondary School Teachers.

On issue 3, Learned Counsel submitted that all members of the claimants have a right to contract out of the 1^st defendant and join any association of their choice as free citizens of this country, relying on S. 39, 40 and 41 of the 1999 Constitution, particularly S. 40, S. 5(3) (a) and (b) of the Labour Act. Counsel also submitted that by the combined effect of these provisions, the claimants can refuse to be members of the 1^st defendant and can equally join the 1^st claimant if that is their choice, citing INEC V. ALH. BALARABE MUSA (2003) 1 SCNJI AT 40 and EROMIMI V. EROMIMI (2015) 14 NWLR (PT. 1373) 32 AT 50.

Counsel contended further that S. 40 of the constitution is not subject to the provision of the constitution of the 1^st respondent, in fact, the constitution of the Federal Republic of Nigeria is superior to any legislation in this country and binding on all persons and authority in Nigeria, referring this court to ARGUNGU V. ARGUNGU (2010) ALL FWLR (PT. 510) 681 AT 796. Therefore it is trite that since the applicants and all members of the applicants have served exhibit D1 to D89 on the defendant and Exhibit R1 to R96 manifesting their withdrawal from the 1^st defendant and gave their mandate to the applicant who was formed to protect their interest the 2^nd – 4^th defendants must respect their wish as they have no discretion in that as there is no statutory provision which says whoever is employed as a teacher must be a member of the Nigeria Union of Teachers or any Trade Union, relying on AMIGBORO V. SEA TRUCKS NIG. LTD (1995) NWLR (PT. 399) 35 C.A.

Counsel then urged the court to resolve issue 3 in favour of the applicants as there is no time the applicants applied to be joined as members of the 1^st defendant.

On issue 4, Learned Counsel submitted that the basis for the deduction from the salaries of all members of the 1^st claimant as check-off dues by 2^nd to 4^th respondents to pay the 1^st defendant in the membership of the applicants. It follows therefore, since there is a change in their membership when they gave their mandate to the leadership of the 1^st claimant as an association vide Exhibit A i.e 2^nd and 8^th claimants, there is no justification whatsoever for continuous deduction of the members of claimants wages for the purpose of remitting it to a body they did not belong and use same to run the affairs of that body.

Counsel further contended that the claimants have written Exhibit C since October, 2006 protesting illegal deduction of the salaries on check-off dues but yet the deduction continues disregarding their protest as if the deduction is not based on the membership of the 1^st defendant which they have denounced.

SUBMISSION ON BEHALF OF 1^ST AND 7^TH DEFENDANTS WRITTEN ADDRESS

In their written address in support of their counter affidavit, the 1^st and 7^th defendants adopted the issues formulated by the claimants and argued same seriation.

On issue 1, i.e whether the Registered Trustees of Conference of Secondary School Teachers of Nigeria (COSST) as a registered corporate body has a right upon incorporation on 7^th March 2001, under Part C of the Companies and allied Mattes Act to exist for the purpose of achieving and actualizing its corporate objective and can represent its members in this case. Learned counsel to the 1^st and 7^th defendants submitted that the 1^st claimant cannot represent its members in this as the grant of Exhibit ‘A’ which is Certificate of Incorporation was not a blank cheque to the claimants. The object has changed as there is nothing in Article (i-xi) which suggests that the object of registering the 1^st claimant was to function as a Trade Union. That the 1^st claimant cannot represent the secondary school teachers in Kebbi State as that will amount to a change which is tantamount to divergence from the objects of the 1^st claimant for which it was granted.

Learned Counsel posited also that the claimants lack the locus standi to represent the secondary school teachers. The first claimant has not been registered under the Trade Unions Act and cannot lawfully represent the claimants and other secondary school teachers, citing S. 2 (1) of the Trade Union Act. Counsel further submitted that the claimant’s registration under CAMA is void by S. 45 of the Trade Unions Act which provides that CAMA shall not apply to any trade union; relying on the case of THE REGISTERED TRUSTEES OF THE FORUM OF FEDERAL HEALTH INSTITUTION, NURSES AND MIDWIVES V. NATIONAL ASSOCIATION OF NIGERIAN NURSES AND MIDWIVES (UNREPORTED SUIT NO. NICN/ABJ/20/2011.

On issue 2, i.e whether the claimants can suffer deduction from their salaries without their consent, counsel submitted that the answer in the positive because they are all members of the 1^st defendant and the 1^st defendant is the only statutorily registered Trade Union saddled with the responsibility to unionize teachers, relying on S. 16 (a) of the Trade Union Act and CAC V. AMALGAMATED UNIONS OF CIVIL CORPORATION, CIVIL SERVICE EMPLOYERS (UNREPORTED) SUIT NO. NICN/14/2001 PER HON. JUSTICE B. ADEJUMO. He also argued that by the provision of S. 5(3) of the Labour Act which stipulates that any worker who does not wish to be a member of the union has a duty to notify his employer in writing and this duty is exercisable only by the individual worker and not in group action, relying on the C.A.C.’s case above. That the salaries of the claimants can be deducted and paid to the 1^st defendant without any authority from them because there is no where it is shown that any teacher in Kebbi State has contracted out of the 1^st defendant.

On issue 3, whether on a proper construction of Ss. 39, 40 and 41 of the 1999 Constitution the claimants have a civil right to contract out of the 1^st defendant, Counsel first conceded that the constitution no doubt guarantees the right of freedom of citizens to associate freely. However, granting the reliefs sought by the claimants could amount to dividing the NUT into two invitation to anarchy and a violation of rights of associates of secondary teachers who are neither loyal to nor support the cause of the claimants. In addition, Counsel relies on paragraph 26 Part B, there Schedule to the Trade Unions Act which defines the jurisdictional scope of the 1^st defendant to include teachers in all educational institutions excluding Universities, Polytechnics, Colleges of Education and other tertiary institutions.

Moreover, Learned Counsel referred to S. 3 (2) of the Trade Unions Act which provides that no combination of workers shall be registered as a trade union save with the approval of the Minister but and no trade union shall be registered to represent workers or employers in a place where there already exists a trade union. That S. 3(2) above is not inconsistent with the provisions of S. 37, 38, 39, 40 and 41 of the Constitution, urging the court to resolve the issue against the claimants.

Counsel further contended that Exhibits D1-D89 are undated and not addressed to anyone in particular and constitute an application for withdrawal made collectively which is not tenable labour circles as representative action is not allowed in notification for withdrawal from a trade union, citing C.A.C. V. AMALGAMATED UNIONS OF CIVIC CORPORATION, CIVIL SERVICE EMPLOYERS (UNREPORTED) SUIT NO. NICN/14/2001 where it was held that eligible members of a union are deemed to be members unless they voluntarily and in writing decide otherwise.

Furthermore, it is Counsel’s submission that Exhibits R1-R96 are self defeatist to the case of the claimant as they are not in custody of the purported certifying authorities. That the said exhibits are worthless as they are not duly certified in accordance with S. 105 of the Evidence Act 2011, relying on the case of KEANI V. EZENAKA BROTHER & ORS (2013) LPLLLR 12399 (CA) and ONOBOMCHERE V. EZEGINE (1986) 1 NWLR (PT. 19) 799. Counsel added that this court cannot countenance Exhibits D1-D89 and R1-R96 because they run foul of due process prescribed under the Civil Service Rules 2002 as they were not channeled through the principals of the authorities or through any other superior officer and were written directly to STEB and SSMB who are not even their employers.

Learned counsel concluded that the claimants as teachers do not have the right to freely associate with any union of their choice unless such union has been validly registered under the Trade Union Act. They however, individually contract out of the 1^st defendant. The claimants and all other teachers are as at today are members of the 1^st defendant and having not validly contracted out of same, they cannot be heard to say that their right of association has in any way been in fringed upon, urging the court to so hold.

With regard to issue 4, i.e whether it is just and equitable for the 2^nd, 3^rd and 4^th defendants to attach and continue to attach the salaries of the individual teachers (or any part thereof) or salaries of teachers who have not subscribed to the membership of the 1^st defendant and remit same to the account of the 1^st defendant, Learned counsel submitted that the 2^nd – 4^th defendants were on sound footing in deducting at source and remitting to the 1^st defendant, check-off dues of the claimants and, in deed all secondary school teachers in the State. This is because, once a trade union is registered and recognized, an employer has no choice or discretion on whether to deduct check-off dues for the benefit of such a union referring the court to S. 16 (a) of the Trade Unions Act and the case of AMALGAMATED UNION OF PUBLIC CORPORATIONS, CIVIL SERVICE, TECHNICAL AND RECREATIONAL SERVICES EMPLOYEES (SUPRA) where it was held that the duty to deduct check-off dues is mandatory and no employer is permitted to choose whether not to deduct. This duty can only be oviated if an eligible member notifies them in writing to stop the deduction and remittance of his check-off dues to the 1^st defendant. But no such matter directive has been served on the 2^nd – 4^th defendants or the 1^st defendant by any of the claimants or any member of the 1^st defendant, urging the court to resolve issue four in favour of the 1^st defendant and dismiss the case of the claimants with substantial cost to the 1^st defendant.

8^TH DEFENDANT’S COUNTER AFFIDAVIT

In response to the originating Summons and affidavit of the claimants, the 8^th defendant filed a counter affidavit dated 7^th August, 2017. The counter affidavit was deposed to by one Hamza Attahiru Wala, male, Adult Nigerian of Aminchi Law Chambers, Birnin Kebbi, Kebbi State.

From its counter affidavit, the 8^th defendant case is that the sum of N71, 118, 167.35 claimed against the Chief Registrar of Kebbi State High Court of Justice in reliefs 6 and 7 of the amended Originating Summons was never released to the office of the Chief Registrar by the 7^th defendant or anybody. That the Chief Registrar never concocted any order of the Court of Appeal, Sokoto Division. That upon complaint by the claimants to the Chief Justice of Nigeria against the Chief Registrar alleging concoction of an order of the Court of Appeal, Sokoto Division, a panel of Inquiry was set up to investigate whether the said Order was concocted. The panel investigated and found out that the Order of the Court of Appeal was not concocted.

That all what the Chief registrar did relating to this matter was only to give effect to the judgment of the Court of Appeal, Sokoto Division which set aside the judgment of Kebbi State High Court by reversing parties to status quo before the judgment of the State High Court.

SUBMISSION ON BEHALF OF 8^TH DEFENDANT

In response to the Originating Summons, the 8^th defendant who filed a written address dated 7^th day of august 2017. Learned Counsel to the 8^th defendant started by stating that of all the reliefs sought by the claimant, it is only reliefs 6 and 7 that relate directly to the 8^th defendant. Thus, the claim against the 8^th defendant is solely with report to the receiving of liquidated sum of N71, 118, 167.35 Learned counsel then formulated 3 issues for determination namely:

Whether the 8^th defendant is a person known to law that can sue and be sued in its name.
Whether the action or claim against the 8^th defendant is not statute barred and thus robs the court of the jurisdiction to entertain same.
Whether the claimants have established their entitlements to the reliefs 6 and 7 of the amended originating summons sought against the 8^th defendant with credible and cogent evidence.

On issue 1, Learned Counsel submitted that the name sued as the 8^th defendant in his case is not a person or entity known to law. This not a juristic person and thus cannot be sued in that name, relying on THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. NAMA (2014) LPELR- 22372-SC PAGES 18-19. Counsel added that there is no such name as the “Chief Registrar, Kebbi State Judiciary” sued in this case on the 8^th defendant as it is not descriptive of a juristic person capable of being sued, citing MAESH LINE & ANOR V. ADDIDE INVESTMENT LTD & ANOR (2000) LPELR- 1811 (SC) PAGES 30-31 and ADMINSTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA V. EKE-SPIFF & ORS (2009) LPELR- 3152 (SC) PAGES 50-51. Counsel the urged the court to strike out the name of the 8^th defendant from this suit.

With regard to issue 2, i.e whether the action or claims against the 8^th defendant is not statute barred and thus robs the court of jurisdiction to entertain this suit, Counsel submitted that the aspect of this action as it relates to the 8^th defendant is caught by the Statute of limitation as enshrined in S. 2(a) of Public Officer Protection Act, cap 379, LFN 1990 which is in pari materia with Section 2 (a) of the Public Officers Protection of Law in Kebbi State, 19990. The Chief registrar as a public officer by virtue of the aforementioned instruments.

Counsel also stated that in determining whether the action against the 8^th defendant is statute barred, the court is to examine the period between the arrival of the cause of action and the date the case was filed. It is the amended originating summons filed on the 13^th day of june, 2017 that determines whether or not this action is statute barred, citing F.U.T. MINNA & ORS V. OKOH (2011) LPLER- 9053 (CA) PAGES 47 AND 48. Counsel argued that the cause of action arose in the 2015 while amendment on the amended originating summons shows that this case was filed on the 13^th day of June 2017, a period of about 2 years, well beyond the three months stipulated for bringing an action against a public officer acting in an official capacity. Counsel posited that the law is settled that where an action is statute barred the right of the claimants to approach the court is extinguished totally by variation of time, relying on P.N. UDON TRADING CO. LTD V. ABERE & ANOR (2001) LPLER (SC) PAGES 15-16.

Counsel stated further that clearly the claimants filed this action against the 8^th defendant in flagrant violation of Section 2 (a) of the Public Officers Protection Act as it is outside the 3 months prescribed by the statute, urging the court to so hold.

On issue 3, whether the claimants have established their entitlements to reliefs 6 and 7, counsel submitted that, assuming without conceding that the 8^th defendant is a juristic person and the action is not caught by section 2 (a) of POPA, it is his contention that the claimants have not established their entitlements to the special damages in the sum of N71, 118, 167.35 claimed against the 8^th defendant in terms of reliefs 6 and 7 of the amended originating summons. To counsel, the nature of the claim falls within the genre of special damages which require strict proof, citing NGILARI V. MOTECHEAT LTD (1999) LPELR- 1998 (SC) PAGES 28-29.

Learned counsel submitted that there is no cogent oral or documentary evidence on record to suggest that the sum of N71, 118, 167.35 was released to the 8^th defendant. Therefore the case of the claimants against the 8^th defendant is conspicuously bereft of credible evidence. Counsel further contended that it is doubtful whether the sum claimed against the 8^th defendant is correct and /or in constr of the 8^th defendant and the court cannot speculate on whether the money was actually released to the 8^th defendant or not, relying on AJIP (NIGERIA) LTD V. AP INTERNATIONAL & OR (2010) LPELR (SC) 205, PAGES 66. Counsel concluded that aside the fact that the claimants have not proved with precision the existence of the money claimed, it is also doubtful whether such amount was indeed released to the 8^th defendant, urging the court to resolve issue 3 in favour of the 8^th defendant.

FURTHER AND BETTER AFFIDAVIT TO 8^TH RESPONDENT’S COUNTER AFFIAVIT/ REPLY ON POINTS OF LAW TO THE 8^TH DEFENDANT’S WRITTEN ADDRESS

In response to the counter affidavit of the 8^th defendant, the claimants filed a further and better affidavit and a written address.

In the further and better affidavit, deposed by one Ibrahim Garba of Nagari College, Birnin Kebbi, claimants averred that contrary to paragraph 3(b) of the 8^th defendant’s counter affidavit, the office of Chief Registrar, Kebbi State Judiciary refers to the Chief Registrar, Kebbi State High Court. That contrary to paragraph 3 (c) the 1^st defendant has stated on oath that the 8^th defendant actually requested the 7^th defendant to release the money kept in its account and that the 8^th defendant released the said amount to the defendant. That contrary to paragraph 3 (d) and (e) the court that delivered the judgment has already derived the orders of 8^th defendant to the Head of Service for the release of the money, as orders not emanating from its judgment vide reply to the letter of Olayiwola Afolabi. That the Chief Registrar of Kebbi State High Court has no power to add or reduce from the judgment of the Court of Appeal. That the 8^th defendant’s order being unlawful is not availed by S. 2(a) of POPA.

The claimants also filed a reply on point of law dated 9^th October 017 in reaction to 8^th defendant’s written address.

Claimant’s counsel pointed out that the 8^th defendant is opposing the amended originating summons raised three issues for determination which are different from the issues raised by the claimants, hence the need to reply on issues raised.

On issue of no person known to law as the Chief Registrar, Kebbi State Judiciary, Learned Counsel to the claimants submitted that there is no dispute as to the fact that Chief Registrar is an office in the Kebbi State Judiciary and 8^th defendant knew very well by combined reading of the affidavit evidence and exhibits attached thereto particularly Exhibit ‘S’ addressed to the Registrar, Kebbi State High Court that it is the actual defendant referred to in the amended Originating Summons but inadvertently brought before this court with a wrong name which is a misnomer within the meaning of the word, relying on MAERS LINE V. ADDIDE INVESTMENT LTD (2002) 11 NWLR (PT. 778) 317 AT 377 and ACCESS BANK V. AGEGE L.G. & ANOR (2016) LPELR- 40491 CA.

Counsel submitted also that giving by the exhibit attached to the amended originating Summons particularly Exhibit ‘S’ and the argument canvassed by the 8^th defendant in issue 2, it is very much aware that the name refers to it but was only mistakenly referred to by the use of the word “Judiciary” instead of the word “High Court”.

In respect to issue 2, i.e on statute barred, learned counsel the argument canvassed by the 8^th defendant can only be valid if the orders/directive given by the 8^th defendant were actually lawful. This because Exhibit T and its attachment was written to the Court of Appeal to verify if the Judgment of the Court of Appeal contained similar orders/directives issued by the 8^th defendant to the 7^th defendant and were lawfully issued as the judgment of the Court of Appeal, Sokoto Division on suit No. CA/S/48/2010. Counsel further stated that since the action of the 8^th defendant in issuing the order are not lawfully made then Public Officers Protection Law of Kebbi State or POPA cap 379, LIN cannot avail it, relying on F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 and AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS V. AKPAN (2013) LPELR- 22105 (CA).

Counsel therefore urged this court to resolve issue 2 in favour of the claimants and hold that the act of the 8^th defendant of issuing orders not lawfully made not contained in the judgment of the Court of Appeal in suit No. CA/S/48/2011 and therefore the statute of invitation cannot avail him.

On issue 3, counsel submitted that the assumption by the 8^th defendant portrays his ignorance as to the nature of the claimants’ action which is not a claim for damages this because a claim for damages can only be made for a breach of contract or civil wrong i.e tortiuous wrong none of which applies here, citing the case of UNION BANK OF NIGERIA PLC V. MR. N.M. OKPARA CHEMAZA (2014) 58 NSCQR 155 AT 182. Counsel stressed that the issuance of damages is to compensate.

However, in the instant case, according to counsel, what the claimants are seeking is reimbursement of their money deducted not from breach of contract or tortuous wrong which is equitable, relying on OLAM (NIGERIA0 LTD V. INTERCONTINENTAL BANK LTD (2009) LPELR- 8275 CA that in the instant case, claimants are simply saying there is no justification for keeping the money deducted from the 2^nd to the 8^th claimants salaries all the 1^st claimants members for the purpose of giving it to the 1^st defendant, a union they no longer belong to as members. The money should be paid back, which is the issuance of money had and released. Therefore, the submission of the 8^th defendant’s counsel on proof of special damages is misplaced, urging the court to so hold and resolve this issue in favour of the claimants.

Learned counsel further submitted that paragraph 3(9) of the 8^th defendant’s counter affidavit is a legal argument/conclusion which contravenes S. 11 (2) of the Evidence At, 2011 which is not supposed to be in the affidavit and should, ipso facto, be struck out.

COURT’S DECISION

As a prelude the claimants instituted this action by way of Originating Summons for the interpretation of Sections 3(a) and (b) and 5(4) of the Labour Act, Sections 39, 40 and 41 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, Section 2 of the Trade Union (Amendment) Act, 2005 as well as other related enactments and instruments. In my humble opinion, there are 6 issues for determination as formulated by the claimants and the defendants, namely:

Whether the incorporated trustees of conference of secondary tutors, Nigeria (COSST) as a registered corporate body has a right upon in corporation on 9^th March, 2001 under Part C of the Company and Allied Matters Act, (CAMA) to exist for the purpose of achieving and actualizing its corporate objectives.
Whether the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th and 8^th claimants and all members of the 1^st claimants could suffer deduction from their wages and salaries without their consent and approval under Sections 3(a) and (b) and 5(4) of Labour Act read together with Section 2 of the Trade Union (Amendment) Act, 2005.
Whether on a proper construction of Section 39, 40 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and Section 2 of the Trade Unions (Amendment) Act, 2005 the claimants have a civil right to contract out of the 1^st defendant, Nigerian Union of Teachers and join any association or union of their choice other than the 1^st defendant.
Whether it is just and equitable for the 2^nd, 3^rd and 4^th defendants to attach and continue to attach the salaries of the individual teachers (or any part thereof) and /or salaries of all the members of the 1^st claimant who have not subscribed to the membership of the 1^st defendant and remit same to the account of the 1^st defendant.
Whether the 8^th defendant was sued in its proper name and whether the orders given by the 8^th defendant to the Head of service to release the money in the custody of the 7^th defendant to it were made pursuant to its power to so do.
Whether the N71, 118, 167.35k deducted from the wages of the claimants members of the 1^st claimant is a claim for special damages.

On issue 1, the claimants submitted that from 9^th March, 2001 1^st claimant is a legal personality and that it can carry out lawful activities for the benefit of its members. On the other hand, the defendants claimed that the 1^st claimant cannot represent its members in this case merely because it is incorporated under the Corporate Affairs Commission. This is because Exhibit 1 attached to the constitution of the 1^st claimant is the Constitution of the 1^st claimant contains nothing in Article 2 (i-xi) which suggests the purpose of registering the 1^st claimant and consequently issuing Exhibit A was to function as a Trade Union.

In the first place, the question is: is the 1^st claimant a registered trade union? Section 1(1) of the Trade Unions Act defines “trade union” as any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would not, apart from this Act, be an unlawful combination by reason of these purposes being in restraint of trade, and whether its purpose do or do not include the provision of benefits for its members. Section 1 (2) provides thus:

A trade union shall not perform any act in furtherance of the purpose for which it has been formed unless it has been registered under this Act.

From the above definition, though the Certificate of Incorporation from the Corporate Commission may confer legal personality to the 1^st defendant, it does not confer it with the status of a Trade union and cannot therefore function as one and unionize or poach the secondary school Teacher in Kebbi State as it has not been registered under the Trade Unions Act. The claimants’ registration under Part C of the Companies and Allied Matters Act as shown in paragraph 9 of the supporting affidavit is void by Section 45 of the Trade Unions Act. Section 45 of the Trade Unions Act provides:

The Companies and Allied Matters Act shall not apply to any Trade Union or any federation of Trade Union, and the registration of such a body under this Act shall be void.

Moreover, there are restrictions on the requirements for registration of Trade Union. There can be no registration of a trade union, whether of workers or of employers, except with the approval of the Minister on being satisfied that it is expedient to register the trade union by regrouping existing trade unions, registering a new trade union or otherwise however. Section 3 (2) of the Trade Unions Act stipulates that:

No Trade Union shall be registered to represent workers or employees in a place where there already exists a union.

The provision was given effect to in the case of OSAWE V. REGISTRAR OF TRADE UNION (1985) 1 NWLR (PT. 4) 755 where the appellants applied to the Registrar of trade unions for registration as “Nigerian Unified Teaching Service Workers Union”. The registrar rejected the application on the grounds that another union that was sufficiently representative of the interest of the applicants was already in existence and registered as the Non-Academic Staff Union of Education and Associated Institutions.

In the instant case Section 34 (3) third Schedule, Part B of the 1999 Constitution No. 26 provides for the jurisdictional scope of the Nigerian Union of Teachers as hereunder:

Teachers employed in educational institution of all types but excluding universities, polytechnics, Colleges of Education and other tertiary institutions.

It is instructive- to note that the 1^st defendant is statutorily empowered to cater for the interest of teachers of secondary schools in Kebbi State.

Flowing from the above, it is evident that the 1^st defendant is a registered Trade Union in existence to foster the interest and welfare of Secondary Tutors in Kebbi State whereas the 1^st claimant is not a registered trade union which may not registable as such, considering the provisions of Section 45 of the Trade Union Act and the scope of jurisdiction accorded the 1^st defendant.

The 1^st and 7^th defendants also submitted that the claimants lack the locus standi to represent the secondary school teachers in Kebbi State as they are members of the 1^st defendant, who are cajoling and poaching other members to contract out of the 1^st defendant. That the claimant cannot represent its members in this case merely because they are registered as a corporate body under the Corporate Affairs Commission. On the other hand, the claimants argued that he 1^st claimant has from 9^th March 2001 became a legal personality and that it can carry out lawful activities for benefit of its members.

However, Section 2(1) of the Trade Unions Act stipulates that:

A Trade Union shall not perform any act in furtherance of the purpose for which it has been formed unless it has been registered under this Act.

Therefore, the Trade Unions Act outrightly prohibits the conduct of the claimants. However, in the case of IFEKWE V. MADU (2001) FWLR (PT. 38) 1252 it held that:

A registered trade union can sue in its registered name but if unregistered, it can sue or be sued by representative members.

It follows therefore that by virtue of the decision in the above case, the claimants can maintain an action in a representative capacity even though it is unregistered; that is it can sue or be sued by its representative members.

In the light of the foregoing, the claimants though unregistered as a union, can sue or be sued by representative members. Consequently, they have locus standi, and I so hold. Issue 1 is therefore partly resolved in favour of the claimants to the extent allowed by the decision in IFEKWE’S CASE, but not by virtue of incorporation under part C of CAMA.

With regard to issue 2, whether the 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and all members of the 1^st claimants could suffer deduction from the wages and salaries without their consent and approval under S. 3 (a) and (b) and 5 (4) of Labour Act read together with Section 2 of Trade Union Amendment Act 2005. Learned counsel to the claimants submitted that the basis of deducting wages of an employee is his voluntary membership of the trade union he chose to join. The moment he notifies the union in writing that he withdraws his membership nobody has the right to deduct his salary and pay to the association he withdraws from. Conversely, the defendants contend that the claimants and all secondary school teachers can suffer deductions of salaries as check off dues because they are all members of the 1^st defendant and the defendant is the only statutorily registered Trade Union saddled with the responsibility to unionize teachers of both primary and secondary schools in Kebbi State. That contrary to the submission of the claimants that the basis of deduction of check-off dues is voluntariness of member, the basis for deduction of check-off dues is eligibility of the member.

Now the question of deduction of check-off dues is quite important, because unless it is resolved, a trade union is in no position to discharge its functions towards its members. Consequently, the question is one that is connected with the employment or non-employment or terms of employment or conditions of work of any person. The question as to what deductions to make from a worker’s wages or salaries, is a matter that is also statutorily provided for under Section 5 of the Labour Act. Section 5 (3) of the Trade Unions (Amendment) Act No. 4 of 1996 made deductions from wages of workers as union dues automatic for all “eligible” members. In the case of CORPORATE AFFAIRS COMMISSION V. AMALGAMATED UNION OF PUBLIC CORPORATION, CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES SUIT NO. NIC/1/2003 DELIVERED ON 28^TH JANUARY 2004, the Hon. President of NICN,Hon. Justice B.A. Adejumo stated that:

The duty to deduct check-off dues is mandatory and no employer is permitted to choose whether or not to deduct to the extent that this is the provisions of the law, it is not unlawful. The worker is not, under the law, expected to specifically authorize the employer to deduct check-off duties. All he can do is if he so wishes, write to the employer directing him to stop the deduction of the check-off dues. This he must do as an individual and in writing. This is because Section 16 (a) of the Trade Unions Act as amended by Decree No. 4 of 1996 obliges an employer to be a member. Eligibility, therefore, is the yardstick, test or standard for determining deductibility and the employer has no choice in this matter.

It is noteworthy that the Trade Unions (Amendment) Act No. 4 of 1996 altered the law without amending Section 5(3) which provides for automatic check-off from wages of workers. The Trade Union (Amendment) Act No. 4 of 2005 substitutes “every worker who is a member of any of the trade unions” for “eligible” without any direct link to Section 5 (3) of the Labour Act. It is also noteworthy that by Section 5 (3) (b) of the Labour Act any worker who does not wish to be a member of the union has a duty and right to notify his/her employer in writing. And this right is exercisable individually and not in a representative action as affirmed in AMALGAMATED UNIONS’ CASE ABOVE.

In the instant case, the claimants contend that the claimants and all other members of the 1^st claimants have individually written to the 1^st defendant as well as the employers of the Secondary School Teachers, Secondary School Management Board (SSMB) Arabic and Islamic Education Board vide Exhibits D1 to D89 and R1 to R 96. On this score, I agree with the submission of the learned counsel to the defendants that throughout the case of the claimants, there is no where it is shown that any teacher in Kebbi State has contracted out of the 1^st defendant as Exhibits R1 – R96 and D1 – D 89 relied upon by the claimants were never addressed to the employers of the teachers in Kebbi State which is the 2^nd defendant. And Exhibit D1 – D89 was neither addressed to the 2^nd defendant nor served on it. The law is trite that where a statute has prescribed a mode of doing a thing no other method will be permitted. In the instant case the law stipulates that service of notice should be made on the employer by an individual worker but the claimants have failed to prove to the court that these conditions have been fulfilled.

Consequently, I find and hold that the claimants being employed as teachers in Kebbi State and all other secondary school teachers in Kebbi State are deemed members of the 1^st defendant, and the 2^nd defendant does not need any authorization from them to deduct check-off dues from their salaries in favour of the 1^st defendant, having not received any notice or directive from any member the 1^st defendant advising it to stop such deduction. Issue 2 is resolved in favour of the defendants.

On issue 3, whether on a proper construction of Sections 39, 40 and 41 of the 1999 Constitution of the Federal Republic of Nigeria as amended, and Section 2 of the Trade Unions Amendment Act, 2005 the claimants have a civil right to contract out of the 1^st defendant (the NUT) and join any association or union of their choice. Learned counsel to the claimants submitted that all members of the claimants have a right to contract out of the 1^st defendant and join association of their choice as free citizens of this country, relying on Section 39, 40 and 41 of the 1999 constitution as amended. Counsel also refers to Section 2 of the Trade Union (Amendment) Act 2005 to corrobate the right of the applicant to join or to refuse to join any trade union. That by the combined effect of these provisions, the claimants can refuse to be members of the 1^st defendant and can equally join the 1^st claimant if that is their choice.

Counsel also argued that since the applicants and all members of the applicant have served Exhibit D1- D89 on the defendant and Exhibit R1 to R96 manifesting then withdrawal from 1^st defendant and gave their mandate to the applicants who was formed to prevent and protect their interest, the 2^nd to 4^th defendants must respect their wish or freedom to belong to a trade union is also reflected in Section 12 of the Trade Unions Act, cap T14 LFN 2004. It provides:

Any person who is otherwise eligible for membership of a particular trade union shall not be refused admission to the membership of that summon by reason only that he is a particular community, tribe, place of origin, religion or political opinion.

Similarly, Section 9 (2) of the Labour Act states that no contract shall make it a condition that a worker shall not relinquish membership of a trade union. It would seem from the provisions that workers can freely form or join a trade union of their choice. But it is no wholly so; there are exclusions and restrictions.

For instance, there can be no registration of a trade union whether of worker or employees, except with the approval of the Minister on being satisfied that it is expedient to register the union or otherwise, however, no trade union shall be registered to present workers or employees in a place where there already exists a trade union. See SECTION 3 (2) OF THE TRADE UNIONS ACT. In the case of OSAWE V. REGISTRAR OF TRADE UNIONS (SUPRA). The appellants rejected the as they have no discretion in that case.

On the other hand, the 1^st and 7^th defendants conceded that the constitution no doubt, guarantees the right and freedom of citizens to associate freely, but this right is not unlimited. This submission find support in section 45 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Counsel also cited paragraph 26 part B, third Schedule to the Trade Unions Act which defines the jurisdictional scope of the 1^st defendant as well as Section 3 (2) of the Trade Unions Act.

Now the law relating to the right to freedom of association, the right to form or to belong to a trade union, is contained in two main sources, the constitution of the Federal Republic of Nigeria, 1999 and the Trade Unions Act as amended.

There is a constitutionally guaranteed freedom of association under the constitution of the Federal Republic of Nigeria 1999, as amended. Section 40 of the constitution provides:

Every person shall be entitled to assemble freely and associate with other persons, and may form or belong to any political party, trade union or any other association for the protection of his interests.

In OSAWE’S CASE in any event such a restrictive union requires was justified under the equivalent provision of Section 45 of the 1999 Constitution. Section 45 (1) of the Constitution 1999 of the Federal Republic of Nigeria, as amended provides:

Notwithstanding, in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:

(a) In the interest of defence, public order, public morality or public health, or

(b) For the purposes of protecting the rights and freedom of other persons.

Exhibits D1- D89 contain a total of 1, 508 persons who are allegedly loyal to the cause of the claimants. On the other hand, Exhibits NUT C1 – C135 contains 1, 957 Secondary School teachers who are loyal members of the 1^st defendant, and who have not authorized the claimants to act on their behalf. I therefore agree with the submission of the learned counsel to the defendants that in the circumstance, that granting the reliefs sought by the claimants herein would amount to dividing the NUT into two, and an invitation to anarchy and confusion. Thus it would seem from these provisions that workers can freely form or join a trade union of their choice. But it is not wholly so, there are exclusions and restrictions. For instance, Section 3(2) provides that:

No trade union shall be registered to represent workers or employees in a place where there already exists a trade union.

In OSAWE V.REGISTRAR OF TRADE UNIONS (1985) 1 NWLR (PT. 4) 755 the registrar rejected an application on grounds that another union, that was sufficiently representative of the interest of the applicants was already in existence and registered as the Non-Academic Staff Union of Educational and Associated Institutions.

In OSAWE’S CASE, the High Court Judge held that the Amendment Act contravened the fundamental rights of the workers as stipulated in Section 37 of the 1979 Constitution, that finding was overturned by the Supreme Court which held that the 1978 statute was aimed at restoring sanity and order in trade unionism in Nigeria and was therefore not unconstitutional (per Oputa JSC at P. 57). The apex Court said that the freedom to associate with other people exists within and not outside all existing laws. In SEA TRUCKS (NIG) LTD V. PYNE (2004) NLLR 58 AT P. 69 the Court of Appeal said that “if it were the intention of the makers of the constitution to make the right to join a trade union unfettered or unrestrained it would have used the word “of his own choice” but that was not to be the case. The Supreme Court in OSAWE’S CASE (supra) even went on to confirm the constitutionality of a restrictive union regime in the country. To the Supreme Court, Section 37 of the 1979 Constitution (now section 40 of the 1999 Constitution) was not infringed by such a restrictive trade union regime. In any event, such a restrictive trade union regime was justified under the equivalent provision of section 45 of the 1999 Constitution. Going by OSAWE therefore, it would seem that the current restrictive and highly compartmental trade union is constitutional.

Furthermore, in CORPORATE AFFAIRS COMMISSION V. AMALGAMATED UNION OF PUBLIC CORPORATION, CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES (SUPRA) the National Industrial Court said:

Having the restrictive though unions along rigid lines of named unions with circumscribed memberships, as we indicated, was necessitated by the need to check the proliferation of trade unions, which is capable of yielding to a chaotic labour regime. The Supreme Court gave its stamp of approval to this fact in Osawe’s case.

In the instant case, Exhibits D1- D89 contains 1, 508 persons who are allegedly loyal to the cause of the claimants. On the other hand, Exhibits NUT C135 contains the names of 1, 957 Secondary School teachers who are loyal members of the 1^st defendant, who have not authorized the claimants to act on their behalf. Section 45 (1) of the Constitution of the Federal Republic of Nigeria, as amended, provides thus:

Notwithstanding, Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society.

(a) In the interest of defence, public safety, public order, public morality or public health, or

(b) For the purposes of protecting the rights and freedom of other persons.

In view of the circumstances of this case discussed above, I agree with the submission of the Learned Counsel to the defendants that granting some of the reliefs sought by the claimants herein would amount to dividing the Nut into two and an invitation to anarchy and confusion. In addition, it would amount to a violation of the rights of thousands of Secondary school teachers who are neither loyal to nor support the cause of the claimants. Issue 3 is therefore resolved in favour of the defendants in order to promote industrial harmony which is an aspect of public order and public safety.

On issue 4, whether it is just and equitable for the 2^nd, 3^rd and 4^th defendants to attach and continue to attach the salaries of individual teachers (or any part thereof) and or salaries if individual teachers who have not subscribed to the membership of the 1^st defendant and remit same to the account of the 1^st defendant. Counsel to the claimants submitted that the basis for the deduction from the salaries of all members of the 1^st applicant as check-off dues by the 2^nd – 4^th defendants is the membership of the applicants. There is therefore change in their membership when they gave their mandate to the leadership of the 1^st claimant as association vide Exhibit ‘A’. There is therefore no justification whatsoever for continuous deduction of members of claimants’ wages and use same to run the affairs of that body. On the other hand, the 1^st and 7^th defendants submitted that the 2^nd – 4^th defendants were on sound footing in deducting at source and indeed remitting to the 1^st defendant, check-off dues of the claimants and indeed, all secondary teachers in the state because, as earlier contended, once a trade union is registered and recognized, an employer has no choice under Section 16 (a) of the Trade Unions Act but to deduct check-off dues for the benefit of such a union.

Now having found earlier that deduction and remittance of check-off dues is mandatory and no credible evidence has been furnished to this court to establish that the teachers have individually and in writing contracted out of the 1^st defendant, and by virtue of Section 16 (a) of the Trade Unions Act as amended by Decree No. 4 of 1996 coupled with the ratios in the OSAWE’S CASE AND AMALGAMATED UNION OF PUBLIC CORPORATIONS’ CASE as well as the provision of Section 45 of the 1999 Constitution as amended and Section 5(3) of the Trade Unions Act, I resolve issue 4 in favour of the defendants.

In his address in support of his counter affidavit which he filed separately, the 8^th defendant, formulated 3 issues for determination, viz:

Whether the 8^th defendant is a person known to law that can sue and/or be sued.
Whether the action or claims against the 8^th defendant is not statute barred.
Whether the claimants have established their entitlement to reliefs 6 and 7 of the amended Originating Summons against the 8^th defendant with credible and cogent evidence.

On issue 1, learned counsel to the 8^th defendant submitted that the name of the 8^th defendant in this case is not a person or entity known to law. It is not a juristic person and thus cannot sue or be sued. That there is no such name as “Chief Registrar, Kebbi State Judiciary” sued as the 8^th defendant. In reaction, the claimants stated that writing the word “Judiciary” instead of the word “High” is a misnomer within the meaning of the word.

Now a misnomer has been defined as mistake or an error in naming a person or a thing, see MTN NIGERIA COMMUNICATIONS LTD V. MR. AKINYEMI ALUKO & ANOR (2013) LPELR – 204073 (CA). In NJOKU V. UAC (SUPRA) it was held that a misnomer occurs when the correct person is brought to court under a wrong name. It is normal to allow amendment in such a context.

In the instant case, the Chief Registrar is an office in the Kebbi State Judiciary. The misnomer occurred by writing the word “Judiciary” instead of the word “High Court” where there is an error only on to the correct name of a party to a suit an amendment sought into proper manner may be allowed to rectify the error. It is usual to allow amendment in such a context. See NKWOCHA V. FEDERAL UNIVERSITY OF TECHNOLOGY (SUPRA).

In the instant case, by Exhibit ‘S’ the 8^th defendant is much aware that the name refers to it but was only mistakenly referred to by the use of the word “Judiciary” instead of the word “High Court”.

There was already a motion for amendment of the name which was granted. I therefore resolve issue 1 in favour of the claimants.

On issue 2, the 8^th defendant submitted that the action against him is statute barred as the action accrued in 2015 when the 8^th defendant gave orders to the Head of Service to release the money in the custody of the 7^th defendant, thus the instant action is statute barred as it is caught by the statute of limitation in Section 2(a) of the Public Officers Protection Act, cap 379 LFN 1990 which is in pari material with section 2(a) of the Public Officers Protection Law of Kebbi State 1999. Section 2 (a) of the Act provides:

Where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution of intended execution of any Act or Law or any public duty or authority or in respect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect:

(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained off or in case a continuance of damages or injury within three months next after the ceasing thereof.

The 7^th defendant was directed to release the money to the 8^th defendant which it did vide letter of 11^th June, 2015. The endorsement of the amended originating Summons shows that the cause of action arose in this case in the year 2015. Counsel stated further that the endorsement of the amended originating summons shows that the case filed on the 13^th June, 2017, a period of two years, well beyond the three (3) months stipulated for bringing an action against a public officer acting or purporting to act in official realm in good faith. The aspect of this action against the 8^th defendant is therefore statute barred, according to the counsel. As such the right of the claimant to approach the court is extinguished to tally.

On the other hand, claimants contended that the 8^th defendant argument could be valid only if the orders/directive given by the 8^th defendant were lawful. This is because the directive/order given by the 8^th defendant was issued outside the authority of the public officers’ duty. It is trite that Section 2(a) applies to the public officers while acting within the colour of his office. The protection does not avail him where he acts outside the colour or official duties of his office.

In the instant case, Exhibit ‘T’ and its attachment was written to the Court of Appeal to verify if its judgment contains similar orders/directives issued by the 8^th defendant to the 7^th defendant and were lawfully issued as part of the judgment of the Court of Appeal in Suit No. CA/S/48/2010/

The 8^th defendant, Chief Registrar being administrative officer making orders as contained in Exhibit T attached to further affidavit is not within his statutory duty or power. I therefore agree with the submission of the claimants that the 8^th defendant, by issuing orders not lawfully made has acted outside the colour of his office and the provision under Section 2(a) of POPA cannot therefore avail him. Consequently, this action is not statute barred. Issue 2 is resolved in favour of the claimants.

With regard to issue 3, whether the claimants have established their entitlement to reliefs 6 and 7 of the amended originating summons sought against the 8^th defendant with credible and cogent evidence.

Relief 6 reads: A declaration that the claimants and all members of Conference of Secondary School Tutors (COSST) in Kebbi State are entitled to a re-imbursement of all deductions from their wages and salaries amounting to N71, 118, 167.35.

Relief 7: An order of this Honourable Court directing the 7^th and 8^th defendant to pay back to the claimants the sum of N71, 118, 167.35 remitted or paid over to it on account of the claimants and all members of the 1^st claimant by the 4^th defendants from October 2013 to May 2015, now in their custody to the members of 1^st claimants their authorized representative. Counsel to the defendants submitted that the claimants have not established their entitlement to special damages in the sum of N71, 118, 167. 35 claimed against the 8^th defendant. That the law is trite that such claim must be strictly proved as it falls within the germ of special damages which require strict proof. Counsel further submitted that it is doubtful whether the sum claimed against the 8^th defendant is correct and the court cannot speculate on that. In their response, the claimants countered that the 8^th defendant wrongly contends that the sum of N71, 118, 167.35 is a claim for special damages which requires strict proof and such a claim can only be made for either a breach of contract or civil wrong, i.e. tortuous wrong which does not apply in this case.

What then are damages generally? The answer has been provided in the case of UNION BANK OF NIGERIA PLC V. MR. N.M. OKPARA CHIMAEZE (2014) 58 NSCQR 155 AT 182 where the Supreme Court defines damages as:

Money claimed by or ordered to be paid to a person as compensation for loss or injury. In other words, damages are the sum of money which a person wronged is entitled to receive from the wrong doer as compensation for the wrong.

Therefore, the issuance of award of damages is to compensate the plaintiff for loss or injury which he has suffered. In addition, special damages may also be awarded as punishment to serve as deterrent.

In the instant case the claimant is seeking for re-imbursement of the money deducted not from any breach of contract or tortuous liability. It is a case of money had and received which is equitable and to prevent the defendants from unjust enrichment. On this score, I agree with the claimants that the money claimed is not compensation for special damages as contended by the defendants.

However, considering my earlier findings, the claimants have not justified why the said N71, 118, 167.35 deducted should be handed over to the 1^st claimant, as it is not a registered union under the Trade Unions Act, coupled with the other issues resolved against them.

Consequently, for the avoidance of doubt and in view of the statutory and judicial authorities cited, as well as the reasons adduced, I find and hold as follows:

Relief 1 is hereby granted only to the extent allowed for representation in the decision in AFEKWE V. MADU (SUPRA) but not by virtue of incorporation of the 1^st claimant under CAMA.
Reliefs 2, 3, 4, 5, 6 and 7 are hereby refused.
Orders of this court shall be complied with within 30 days from the date of this Judgment.

Judgment is entered accordingly. I make no order as to cost.

…………………………………

Hon. Justice Lawal Mani, PhD.