ADELEYE MARY ARIT & 2 Ors. -VS- ASSOCIATION OF SENIOR STAFF OF

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP. HON. JUSTICE. (DR.) I. J. ESSIEN

DATE: 20^th June 2019.

SUIT NO: NICN/ LA/238/2018

BETWEEN

ADELEYE MARY ARIT

IYANDA OMOLARA AYOTUNDE Claimants

ADEYEMO KEHINDE OLAPEJU & 37 OTHERS.

AND

ASSOCIATION OF SENIOR STAFF OF BANKS

INSURANCE AND FINANCIAL INSTITUTIONS Defendants

(ASSBIFI)

REPRESENTATION;

Kamoro Esq. with C. Adeyoriju Esq for the claimants
Atewe Esq for the defendant.

JUDGMENT.

The claimants by an originating summons dated the 7^th day of February, 2019 sought the determination of the following questions from this court;

Having regard to the nature of business carried on by the claimants· employers, do the claimants fall into categories of persons or individuals contemplated to be members of the defendant by virtue of the Part 3, Third Schedule of the Trade Unions Act, Cap Tl 4, LFN 2004? 2004?

Even if the claimants qualify as persons contemplated to be members of the defendant association (though not conceded), is it not a breach of the claimant’s fundamental rights to freedom of association for the defendants to compel the claimants’ membership of its association, in the face of the claimants’ resistance?

Upon the determination of the above questions, The claimants seeks the following declaration from the court.

a)A DECLARATION that the claimants being the Senior Staff of GTL REGISTRARS LTD, do not fall within the Jurisdictional scope and or category of membership of the defendant, having regard to the nature of business of the claimant’s employer and cannot therefore be required and or compelled to be registered as members of the defendant.
b)A DECLARATION that the claimants, even if they are within the Jurisdictional scope of the defendant, reserve the inalienable constitutionally guaranteed right to decide whether or not to Join the membership of the defendant freely and devoid of any coercion, threat and or compulsion from the defendant.
c)Further to (b) above. A DECLARATlON that the claimants, having respectively and Jointly decided against being admitted or registered into the membership of the defendant, it is unconstitutional and illegal of the defendant to continue to make demands from the claimants’ employer. GTL REGISTRARS LTD – for the recognition of the defendant as the industrial association in the matters relating to the claimants employments.
d)AN ORDER of perpetual injunction restraining the defendant whether by itself or through their officers and or members from relating with the claimants’ employers–. GTL REGISTRARS LTD-purportedly on behalf of the claimants or any of the claimants in any matter relating to the claimant’s employment or howsoever.
e)AN ORDER of perpetual injunction restraining the defendant whether by itself or through their officers and or members from embarking on any industrial action howsoever against the claimants’ employers .. GTL REGISTRARS LTD- under the guise of purportedly acting on behalf of the claimants or any of the claimants in any matter relating to the claimants’ employment or howsoever; or otherwise disturbing or interfering with the claimants’ lawful discharge of their respective employment duties.
f)Solicitors cost of this action as assessed by the court.
g)And such further orders or other orders as the Honourable Court may deem fit to make in the circumstances.

The originating summons is supported by a 36 paragraph affidavit deposed to by the 1^st claimant in this suit. Annexed to the affidavit are 9 exhibits numbers as Exhibit GTL 1 to Exhibit GTL 9. Also in support of the originating summons is a 4 paragraph further and better affidavit deposed to by the litigation clerk in the office of the claimant counsel. The claimant also filed a reply on point of law to the defendant address in support of the counter affidavit and counter claim.

The originating process was served on the defendant on the 8/2/2019. The defendant filed a counter affidavit to the originating summons on the 18/2/2019. In the counter affidavit the defendant included a counter claim wherein he sought the determination of the following questions.

Whether the claimants as members of the defendant/counter-claimant are not bound to pay their check off dues up till to the point of resigning their membership of the defendant/counter-claimant.
Whether the 41^st defendant is not bound to deduct and remit check off dues of union members to the union. (sic)

And thus if questions (a) and (b) above is answered in the affirmative. The defendant seeks the following orders from the court.

An order of this honourable court mandating the 41^st defendant to remit the counter-claimant’ 1^st to the 40^thmembers’ check off dues to the counter-claimant commencing from the month of October, 2011 to January 2018.

An order of this honourable court mandating the 41^st defendant to forthwith deduct and remit the counter-claimant’s 1^st to 40^th members’ check off dues to the counter-claimant commencing from the month of October, 2011 to January, 2018 in full compliance with its obligation under the law.
An order for the sum of N5, 000,000:00 (Five Million) Naira in favour of the counter-claimant against the 41^st defendant for specific denial of its use of the 1^st to 40^th claimant members check of dues for the development of its members and the counter-claimant.
The sum of N 2,000.000; 00 (Two Million) Naira as cost of this action.

The defendant/counter claimant with the leave of court also filed a reply on point of law to the claimant address in opposition to the counter claim on the 2/5/2019. This suit was heard on the 13/5/2019. The claimant and the defendant counter claimant adopted their respective processes and urged the court to grant their reliefs.

ON QUESTIO 1

Having regard to the nature of business carried on by the claimants· employers, do the claimants fall into categories of persons or individuals contemplated to be members of the defendant by virtue of the Part 3, Third Schedule of the Trade Unions Act, Cap Tl 4, LFN 2004? 2004?

The claimant contention is that by the nature of business carried on by the claimants employer, the claimants do not fall into categories of employees contemplated to be members of the defendant by virtue of Part 3 of the Third Schedule of the Trade Unions Act, Cap 114. LFN 2004. He argues that while the 3^rd schedule to the Trade Union Act recognises the defendant as a trade union, its jurisdictional scope to unionise employee is defined in part B of the 3^rd schedule to the Act, to cover;

Workers in banks and closely related institutions, such as mortgage companies, industrial loan institutions, agricultural credit agencies, cooperative credit societies, investment companies, holding companies, insurance carriers of all kinds; insurance agents and brokers; organizations servicing insurance carriers; consultants for policy holders; adjusting agencies; other closely related institutions not otherwise mentioned, all types of dealers in real estate.

Counsel argued that the business of the claimants employer are as stated in paragraph 15 of the affidavit in support of this originating summons which are stated to be;

The nature of the business of the claimants’ employer as Registrars, the services rendered are limited to: coordinating activities at clients’ general meetings; annual general meetings and extra-ordinary general meetings; attending to shareholders· requests and enquiries; updating shareholders· basic records and mandates; processing of dividend and coupon payments; distribution of annual reports other corporate reports to shareholders; verification and validation of shareholder’s/bondholder’s transactions; dematerialization of share certificates; registration of share transfers; filing of annual returns on behalf of clients with the Corporate Affairs Commission.

Counsel also argued that by section 65 of Banks and Other Financial Institution Act which provides for businesses to be categorised as financial institution as well as section 2 of the Insurance Act which stipulates activities designated as insurance activities, that none of the businesses of the claimant’s employers can be categorized as banking, insurance or financial activities. He relied on exhibit GTL 6 an electronic print out obtained from the CBN website listing classes of financial institution under the regulatory control of CBN to include “Deposit Money Banks , Discount Houses , Primary Mortgage institutions, Finance Companies, Bureaux-de-change, Development Finance Institutions, Micro Finance Bank.” He stated that the employees of any organisation whose activities falls outside this classification cannot be unionise by the defendant.

He stated that the activities of the claimants employers is regulated by Securities and Exchange Commission (SEC) and not by CBN and relied on exhibit GTL3 a letter from SEC to the Minister of Labour clarifying the status of the claimants employers as a non-financial institution. Counsel finally submitted that the onus is on the defendant to establish that the claimants employers is a financial institution.

In response to the argument put forward by the claimant counsel, the defendant counsel argues that it is the nature of the business carried on by the claimants employers that will determine whether it is a financial institution. And not the profile of the GTL Registrars Ltd. ie exhibit GTL4, urging the court to discountenance exhibit GTL4. He argued that the claimant employer has always been a financial institution and relied on Exhibit ASSBIFI 2. A letter from the state controller of the Ministry of Labour and Productivity addressed to the managing director of the defunct Union Registrars Ltd, stating that Union Registrars is a financial institution. Counsel argued that Exhibit GTL2 has no evidential value as it is not signed and relied on the case of Nasiru Garba Dantiye & Anor V. Ibrahim Yushua’uKanya [2000] 4 NWLR (Pt.1130) 13. He further argued that This court lacks jurisdiction to determine whether the claimants’ employer is a financial institution or not, as to fall within or not within the jurisdictional scope of the Association of Senior Staff of Banks, Insurance and Financial institutions. In that the jurisdiction to interpret the provisions of Section 66 of the Banks and Other Financial Institutions Act Cap B3 LFN 2004 and Section 315 of the Investments and Securities Act 2007 is vested in the Federal High Court by the provisions of section 215(1)(e) of the 1999 Constitution. He argued that it is the Federal High Court that has exclusive jurisdiction to determine matters arising from the operation of companies incorporated under the Companies and Allied Matters Act. And that any ancillary matters arising from the operation of companies cannot be entertained by this court as it would have no jurisdiction to entertain the main claim, counsel relied on the case of Tukur V Govt Of Gongola State [1989] NWLR (PT 117) at 517.

Counsel further argued in the alternative that assuming the court has jurisdiction to entertain this action, it is their position that the claimants employer is a financial institution within the meaning of section 66 of BOFIA 2004, he argued that to determine whether a company is a financial institution, the Memorandum of Association of the claimants employer BGL Registrars Ltd, has to be examined to know its authorised businesses and not to look at section 66 of the BOFIA Act 2004. He submitted that by exhibit ASSBIFI 4, (the Memorandum of Association of Union Registrars Ltd.) Counsel finally urged the court to resolve issue one against the claimant.

DECISION OF THE COURT

I have carefully considered the affidavit, the exhibits as well as the written submission of the counsels to the parties on this issue. It does appear from the argument put forward by the parties to this action, they both agree that it is only institutions classified as financial institution that its employees can be unionised by the defendant. The pertinent question becomes whether GTL Registrars Ltd. is a financial institution so as to subject the claimants to the unionised control of the defendant in this action. To determine what a financial institution is, reference must of necessity be made to extant laws. This issue cannot be open to the expression of opinion as to what it is, and what it is not by any person or institution in disregard to the law on this subject. The appropriate law is the BOFIA 2004. From the short title of this law, the BOFIA enactment regulates banks and other financial institution and the defendant can only unionise employees of banks and other financial institutions. While it is easy to determine what banking institution is, which the CBN has already classified, the word ‘other financial institution’ not being a word of art must therefore be understood in the context in which it is used in this statute so as to keep it away from the evil of ambiguous interpretation. To this effect, Section 66 of the Act defines other financial institution in the following words;

Other financial institution’ means any individual, body , association or group of persons whether corporate or unincorporated, other than the banks licensed under this Act, which carries on the business of a discount house, finance company and money brokerage and whose principal objects include factoring, project financing, equipment leasing, debt administration, fund management, private ledger service, investment management, local purchases order financing, export finance, project consultancy, financial consultancy, pension fund management and other business as the Bank may, from time to time, designate.

From the above it is clear that the business of ‘Registrar’ which the claimant has listed its activities in paragraph 15 of the affidavit in support of this originating summons is not included in the scope of the business activities of institution designated ‘other financial institution’ as quoted above. It does appear that the business of ‘Registrars’ has never been a financial institution business. This to my mind may have informed the decision of the CBN to direct and prohibit banks from undertaking non-banking activities via directive of 7^th September, 2010 as stated in paragraph 7 of the affidavit in support of this originating summons. This paragraph is admitted by the defendant in paragraph 7 of the counter affidavit. As admitted by both parties in their affidavit and written submissions this resulted in the business of ‘Registrar’ performed by the defunct Union Registrar Ltd being transferred to GTL Registrars Ltd, the employer of the claimants. However, the nature of such transfer is not clear to this court and no evidence has been led in that respect.

The defendant has relied on exhibit ASSBIFI 2, a letter addressed to the Manging Director of the defunct Union Registrars stating the position of the Ministry of Labour and Productivity. To rely on that letter in urging this court to recognise the employers of the claimants as a financial institution for the purpose of unionising the claimants is to put their claim on a very faulty foundation. As stated in the heading of the letter which reads

‘Position of the Ministry of Labour and Productivity on the – Industrial Dispute Between Union Registrars Ltd. And The Association of Senior Staff of Banks Insurance and Other Financial Institution (ASSBIFI)

That letter only expresses the position of the ministry which in the opinion of this court is wrong. As I have earlier stated in this judgment no institution person, ministry howsoever called can usurp the interpretative jurisdiction of any court of law in Nigeria over a statute that is considered in a matter before a court. The opinion of the Ministry of Labour and Productivity is of no moment in so far as it runs contrary to what is contained in section 66 of BOFIA 2004. Perhaps that wrong opinion may have been expressed when the business activities of ‘Registrars’ were run as an integral business of banking as was the case with Union Registrars Ltd in Union Bank before that activities was excised from core banking activities by the CBN. That letter exhibit ASSBIFE 2 was written to Union Registrars Ltd. and not GTL Registrars Ltd, which was not part of Union Bank. The opinion expressed in exhibit ASSFBI 2, cannot represent the law or be assumed to be binding on any person or authority in this country. I must also comment on exhibit ASBIFI 5 which the defendant also relied on in his argument. That exhibit is the Memorandum of Association of Union Registrars Ltd. This action is calling for the determination of the status of GTL Registrars Ltd, the employers of the claimant. The Memorandum of Association of Union Registrars Ltd cannot be used to determine the operational activities of another corporate entity. Even assuming but not conceding that the Memorandum of Association of Union Registrars Ltd could be used to determine the operational activities of GTL Registrars Ltd. the mere fact that there are clauses that suggest the engagement in financial activities would not qualify GTL Registrars Ltd as a financial institution in the absence of evidence that GTL Registrars Ltd, carry on such businesses. I agree with the learned claimant counsel that exhibit ASSBIFI 5 is without any evidential value in this action, and it will be so treated.

It is also the contention of the defendant counsel that this court lacks jurisdiction to interpret Section 66 of the Banks and Other Financial Institutions Act Cap B3 LFN 2004, and Section 315 of the Investments and Securities Act 2007. It is absurd that the claimant counsel prefers the opinion of the Ministry of Labour and Productivity as shown on Exhibit ASSBIFI 2 to the opinion of this court and therefore argues that this court cannot interpret the extant laws on this issue. Thus he argues that jurisdiction is vested in the Federal High Court by the provisions of section 215(1)(e) of the 1999 Constitution. Counsel argument on this point clearly misrepresents the law on the jurisdiction of this court. Section 254C(1)of the 1999 Constitution provides;

Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise Jurisdiction to the exclusion of any other court in civil causes and matters. relating to or connected with any labour, employment, trade unions, Industrial relations and matters arising from work the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.

From the tenure of the civil jurisdiction of this court stated above, it is clear that this court is vested with jurisdiction to the exclusion of any other court in civil causes and matters, relating to or connected with any labour, employment, trade unions… employee, worker and matters incidental thereto and connected therewith. It is trite rule of interpretation that words used in legislation are not used in vain. The use of the phrase matters ‘relating to’ or ‘connected with’ and matters ‘incidental thereto’ and ‘connected therewith’ are used to cover the field in areas where other matters may have connection to the subject matter which this court is vested with jurisdiction. It is a misconception of the defendant counsel that in this matter which concerns the defendant as trade union and the claimants as employees and which relates to the welfare of the claimants, is a matter in the determination of which this court cannot make reference to and invoke the interpretative jurisdiction of the court to consider and interpret the provisions of section 66 of BOFIA and section 315 of the · Investments and Securities Act 2007 in other to determine whether the claimants employer is a financial institution. The interpretation of these provisions of the law are incidental to and connected with the main subject matter which this court is vested with jurisdiction as earlier shown in this judgment. I must also add that by providing in section 254C-(1) of the Constitution to wit; ‘Notwithstanding the provision of section 251, 257,272 and anything contained in this constitution’. This proviso has the effect of making the above provision subject to the jurisdiction conferred on the National Industrial Court, and as such the exclusive jurisdiction of the Federal High Court conferred on the court by Section 251of the 1999 constitution is not completely exclusive in so far as it relates to matter that are connected with the subject matter of the jurisdiction of this court.

Drawing from the above position taken by this court, this court is vested with the jurisdiction to hear and determine this suit. It is also the decision of this court that GTL Registrars Ltd, is not a financial institution recognised by section 66 of the Bank and other Financial Institution Act 2004. Therefore the defendant cannot unionise the claimants who are the employees of GTL Registrars Ltd. This is so because the jurisdiction of the defendant to unionise worker in part B of the third schedule to the Trade Union Act clearly excludes the claimants who work for GTL Registrars Ltd which is not a financial institution. The first relief of the claimant succeeds and is hereby granted by this court.

ON QUESTION 2

Here the claimants submits this question for determination;

Even if the claimants qualify as persons contemplated to be members of the defendant association (though not conceded), is it not a breach of the claimant’s fundamental rights to freedom of association for the defendants to compel the claimants· membership of its association, in the face of the claimants’ resistance?

It is the contention of the claimant counsel that section 40 of the 1999 Constitution as amended guarantee the right of freedom to assemble freely and associate with other persons including the right to belong to a trade union or any other association for the protection of his interest. He argued that this right also finds expression in section 9(6) of the Labour Act, Section 12 of the Trade Union Act and section 12 of the International Labour Organisation Convention No 87. He further argued that by the provisions of section 12(4) of the Trade Union Act, the membership of any trade union is voluntary and no employee can be forced to join any trade union or be victimised for refusing to join or be a member of a trade. Counsel further contended that the right to associate also goes with the right to dis-associate from membership of a trade union and also contract out check off dues. The claimants he stated have done this vide exhibit GTL 8 (1-40) and exhibit GTL 9. He argued that the attempt by the defendant to forcefully unionise the defendant is a breach of the constitutional rights of the claimants.

The defendant counsel did not make any argument in response to the claimant counsel argument summarised above. In his oral adumbration the defendant counsel argued that the interest of the defendant is not in making the claimants members of the defendant union anymore in view of their individual resignation from the defendant as evidenced by exhibit GTL 8 and GTL9. Counsel stated further that what the defendant is interested in is the unpaid check off dues from October 2011 to January 2018 which they have counter claimed. I have in my concluding decision on the first issue submitted for determination above stated clearly that the claimant’s employer is not a financial institution and as such the claimants do not come under the umbrella of the defendant union. The position taken by the defendant counsel in response to the question sought to be determined here is an admission of the claims of the claimant in this originating summons. The position of the law is that by section 12(4) of the Trade Union Act membership of trade union is voluntary and a worker in any establishment are entitled to renounce their membership of a trade union and contract out their obligation to pay check off dues as allowed by the provision of section 5(3) of the Labour Act. This the claimants have done as evidenced by exhibits GTL 8 and GTL9. Therefore it follows that that the claimants have effectively denounced their membership of the defendant if at all they were members at any point in time. The counsel to the defendant having admitted they are no more interested in the claimants being members of the defendant I think the fears of the claimants have been laid to rest. The claimant can therefore not be compelled to become members of the defendant.

DEFENDANT COUNTER CLAIM.

The defendant in this suit in paragraph 32 of the counter affidavit filed in opposition to the originating summons and also counter-claimed against the claimants and GTL Registrars Ltd. as the 41^st defendant to the counter claim. The counter claim is contained in the counter affidavit in opposition to the originating summons deposed to by one Tony Eme a unionist of the counter claimant. In paragraph 15 of the affidavit in support of the counter claim the defendant counter claimant raised the following question for the determination of this court;

1) whether the claimants as members of the defendant/counter-claimant are not bound to pay their check off dues up till to the point of resigning their membership of the defendant/counter-claimant

2) whether the 41^st defendant is not bound to deduct and remit check off dues of union members to the union.

And thus if questions (a) and (b) above is answered in the affirmative, therefrom defendant/counter-claimant seeks for the following reliefs;

i) An order of this honourable court mandating the 41^stdefendantto remit the counter-claimants 1^st _40^th members check off dues of the counter-claimant commencing from the month of October 2011 to January 2018.
ii) An order of this honourable court mandating the 41^stdefendant to forthwith deduct and remit the counter-claimant’s 1^st to 40^th members check off dues to the counter-claimant commencing from the month of October. 2011 to January, 2018 in full compliance with its obligation under the law.
ii) An order for the sum of N5,000.000 (Five million) naira in favour of the Counter-claimant against the 41^stdefendant for specific denial of its use of the 1^st to 40^th members check of dues for the development of its members and the Counter-claimant
iv) The sum of N2.000,000 (Two Million) Naira as cost of this action.

The above set out questions and the reliefs are contained in the counter affidavit of the of the defendant counter claimant. This has raise serious question of the competence and or propriety of the counter claim in an affidavit. In other words can a party in in an action raise question and seek orders in a counter affidavit.

The provisions of section 115 of the Evidence Act 2011 provides what a content of an affidavit filed in a proceedings should contain thus;

S.115(1) Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes. Either of his own personal knowledge or from information which he believes to be true.

(2) An affidavit shall not contain extraneous matter, by way of objection. Prayer or legal argument or conclusion.

While it is the law that in a suit that is fought on affidavit evidence like in the present suit, the defendant counter affidavit serves as his statement of defence, such affidavit is not to violet the provisions of the Evidence Act. The Court of Appeal in the case of Abiodun V. Attorney General of the Federation [2007]LPELR-8550 CA. The court held.

Where the counter affidavit to originating summons contain paragraphs contrary to section 87 of the Evidence Act or extraneous matters and/legal arguments or conclusions such paragraphs are liable to be struck out.

Section 87 referred to in this judgment is now section 115 of the Evidence Act 2011. From the counter affidavit filed by the defendant/counter-claimant in this action wherein he raised a counter claim. Particularly paragraph 15, the questions raised in that paragraph for determination by this court amounts to legal argument. And the prayers sought for in the said paragraphs are nothing but prayers/conclusion which the defendant/counterclaimant wants this court to adopt. These paragraphs offend the provisions of the section 115 of the Evidence Act 2011 quoted above and are likely to be struck out. A party to an action who intends to claim in his action must raise the claim properly I think the counter claimant ought not to have raised his counter claim in an affidavit because an affidavit is not a proper process to raise a counter claim. A counter affidavit ought to be the process containing the facts upon which to establish the counter claims. For the reasons given above paragraph 15 of the affidavit in support of the counter claim is hereby struck out for bring in violation of section 115 of the Evidence Act 2011.

This being the case since there is no counterclaim before this court the affidavit in support of the non-existent counter claim goes to no issue. The argument in support of counter claim is in support of nothing. The prayers sought for in paragraph 3.11 of the defendant affidavit cannot be granted by this court, the prayers are accordingly dismissed.

Judgment is hereby entered in favour of the claimant in the following terms;

It is hereby declared that the claimants being the Senior Staff of GTL Registrars Ltd, do not fall within the jurisdictional scope and or category of membership of the defendant, having regard to the nature of business of the claimants· employer; and cannot therefore be required and or compelled to be registered as members of the defendant.
It is also declared that that the claimants, even if they are within the Jurisdictional scope of the defendant, reserve the inalienable constitutionally guaranteed right to decide whether or not to join the membership of the defendant freely and devoid of any coercion, threat and or compulsion from the defendant.
It is further declared that the claimants, having respectively and Jointly decided against being admitted or registered into the membership of the defendant, it is unconstitutional and illegal of the defendant to continue to make demands from the claimants’ employer – GTL Registrars Ltd – for the recognition of the defendant as the industrial association in the matters relating to the claimants· employments.
AN ORDER of perpetual injunction is hereby made restraining the defendant whether by itself or through their, officers and or members from relating with the claimants’ employer. GTL –Registrars Ltd purportedly on behalf of the claimants or any of the claimants in any matter relating to the claimants· employment or howsoever.
Claim no (e) is refused as there is no basis for making this order in view of relief No1 granted above.
Cost of N100,000 is awarded against the defendant.

Judgment is entered accordingly.

_______________________________

Hon. Justice (Dr.) Isaac J. Essien

(Presiding Judge)