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National Industrial Court

Chinedu Michael Dim & 27 ORS -VS- Daniel Okeke & 13 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP, HON. JUSTICE I.S. GALADIMA.

 

DATE:  30th October, 2019.                                                    SUIT NO:NICN/OW/39/2018

BETWEEN:

  1. CHINEDU DIM MICHAEL
  2. ANTHONY OKEAFOR
  3. CHIZOBA IZUOGU
  4. OSITA EJEZIE
  5. CHIDOZIE ANYAOGU
  6. CHIMEZIE ANYIKWA
  7. CHUKWUEBUKA AWURIGWE
  8. EZENWAKA NDUBUISI
  9. IFEANYI MBAEGBU
  10. IBEKWE CHIBUZO
  11. ONYEDIKA MBAEGBU
  12. EBUKA ONYEEBUEKE
  13. CHINEDU NWAOKIKE
  14. ODIMEGWU ISDORELIVINUS
  15. ADIM ONYEBUCHI
  16. IKECHUKWU AMARAIBE
  17. IBEKWE KELECHI
  18. CHINEDU AZUBUOGU
  19. ROMANUS IHIONU
  20. UZOCHUKWU EMECHEBE
  21. MMADUABUCHI DURU
  22. CHRISTOPER UGWU
  23. SOMADINA AWURIGWE
  24. EMMANUEL AWURIGWE
  25. ODINAKA IBEKWE
  26. EMMANUEL AHUWA
  27. OFOMA AZUBUIKE
  28. OKECHUKWU ELEBEKE

AND

 

  1. DANIEL OKEKE
  2. ODINAKA OBIAGWU
  3. MICHEAL NWAGWU
  4. SUNDAY DIM
  5. OKE ELEMUO
  6. ECHEZONA DIM
  7. NWABUEZE OKERUO
  8. MICHAEL EZENWA
  9. NELSON EKEMEZIE
  10. INNOCENT MBAOJE
  11. PATRICK ONYEGIRI
  12. OBIESHIE AUGUSTINE
  13. COMRADE IZUCHUKWU OKEBARAM

(StateChairman, NURTW, Imo StateCouncil)

  1.  NATIONAL UNON OF ROAD TRANSPORT WORKERS

 

REPRESENTATION

  • O.U. Onuegbu; J.C. Anochiwa; D.O. Dike; Chidi Oguzie for the Claimants.
  • U.C Osuji; V. C. Uzoechi for the 1st, 2nd, 3rd, 5th, 7th, 8th, 9th, 10th,11th,12th, 13th,and 14th,   Defendants (1st set of Defendants).
  • Chinedu Agu for the 4th and6th Defendants (2nd set of Defendants).

 

JUDGEMENT:

In this action, these 28 Claimants allege to be bona fide members of the National Union of Road Transport Workers (NURTW), Ideato � North Branch of Imo State. They are aggrieved that these Defendants particularly the 1st, 2nd,7th, 8th,10th and 11th(beingsome of the executive officials of the above 14th Defendant union in Ideato � North Branch), have allegedly been serving as union officials since 1999 to date unconstitutionally and illegally and have thus constituted themselves as tyrants contrary to the Constitution of the NURTW as amended in 2015 which specifically stipulates a 4 year tenure for all elected officials and a maximum of 8 years upon reelection for a second term. The4th, 5th, 6th,and 12thDefendants who arealso indigenous members of Akwoka in Ideato � North LGA, were purportedly utilized as thugs by the 1st, 2nd, 3rd,7th, 8th, 9th,10thand 11thDefendants to deal with the Claimants or any other member of the Branch union who was opposed to the 1st set of Defendants above enumerated including beating up particularly the 1st Claimant and incarcerating him without lawful justification. That all entreaties on the relevant police and government authorities to prevail over this matter failed consequently the reason for this action. The Defendants deny all these allegations put up by these Claimants,rebutting that the Claimants are not registered members of the said 14th Defendant union and therefore cannot challenge the constitutional validity of the Defendants who are duly elected officials of the union. The Defendants also claim that the 4th and 6th Defendants who are blood and step brothers respectively to the 1st Claimant, are neither members nor elected officials of the said union. The claims against the13thDefendant were notspecifically outlined savewith regards to the declarations sought against the remaining Defendants. The 14thDefendant here named, is the NURTW.

Consequently, this suit was commenced by way of a writ of complaint duly accompanied by other originating processes dated and filed the 24/8/2018, wherein the Claimants claim against the Defendantsjointly and severally as follows:

  • A DECLARATION of this HonourableCourt that in line with the constitution of the National Union of Road Transport Workers (N.U.R.T.W), 2015 (As Amended) , the four (4) year tenure of the 1st, 2nd, 8th, 9th, 11th, and 12th   Defendants elapsed since 31st November, 2003, i.e. about fourteen (14) years ago.
  • AN ORDER of this Honourable Court directing the zonal administrative council of National Union of Road Transport Workers (i.e. the 13thDefendant) to take over the leadership of Ideato-North Branch of National Union of Road Transport Workers (N.U.R.T.W) Ideato-North Branch to forestall blood-shed and conduct fresh elections for the emergence of the new executives of the Ideato-North Branch (N.U.R.T.W) within three months after the determination of this suit.
  • AN ORDER of the Honourable Court restraining the Defendants, the Ideato-North Branch of National Union of Road Transport Workers (N.U.R.T.W), their tenure of office having elapsed fourteen (14) years ago.
  • AN ORDER of the Honourable Court declaring the continuous stay in the office and the past fourteen (14) years of sit �tight   leadership of the Ideato-North Branch of National Union of Road Transport Workers (N.U.R.T.W) by the 1st, 2nd,8th, 9th,11th, and 12th Defendants illegal, unconstitutional and ultra-vires the four years mandate of members Ideato � North Branch of National Union of Road Transport Workers (N.U.R.T.W) given to the 1st, 2nd, 8th 9th, 11th, and 12th Defendants on 31st November, 1999.
  • AN ORDER of the Honourable Court mandating the Defendants to render accounts of their stewardship to the members of Ideato-North Branch National Union of Road Transport Workers (N.U.R.T.W) for the past fourteen (14) years of their sit � tight leadership.
  • The sum of N2, 000, 000.00 being general and exemplary damages for filing and prosecuting this suit.

The 1st, 2nd, 3rd, 5th, 7th,  8th, 9th, 10th, 11th,12th, 13th, and 14thDefendants filed a conditional memorandum of appearance, Statement of Defence and other accompanying processes on the 20/9/2018. The 4th, and 6th Defendants also filed a conditional appearance on 9/10/2018 and a Defence and Counter Claim filed out of time on 25/1/2019. The Claimants again filed a reply against the 1st and 2nd sets of Defendants� Statements of Defence variously dated 21/1/2019 and 12/3/2019 respectively.

These proceedings commencedbefore me from the 23/10/2018. This Court intercepted the various preliminary applications,including an application for interlocutory injunctionfiled by the respective parties and instead opted for an accelerated hearing.

CLAIMANTS� CASE:

Now specifically, these Claimants� case was opened on the 13/3/2019. They presented their sole witness (Chinedu Dim Michael � also the 1st Claimant) who testified on their behalf as CW1. Adopting his written statement on oath as his evidence in chief, he tendered a total of 7exhibits lettered exhibits C1-C7all duly admitted. He also adopted both replies and his depositions on oath against the two sets of Defendants� pleadings. His deposition against the first set of Defendants is dated 21/1/2019 whereas the second is dated 12/3/2019. CW 1 also led evidence against the cross action filed by the 2nd set of Defendants. Thereafter,he was cross examined byboth Defendants� Counsel on the same day. Thedocuments collectively tendered by the CW1 are:

  1. Exhibit C1 � the Constitution of the National Union of Road TransportWorkers (N.U.R.T.W) asamended.
  2. Exhibit C2 (a) (b) (c) and (d)� copies of the individual Claimants� membership identity card of NURTW.
  3. Exhibit C3�The vehicle documents of CW1 Toyota Corolla Saloon Car with Registration Number: Lagos AP 273 BP, Chaises NO: 2T1BR38E13C721065, Engine: 1ZZ9662684 dated 23/7/13.
  4. Exhibit C4� petition written to (N. U. R. T. W) Imo State dated 12/2/2018.
  5. Exhibit C5 �Claimants� petition through Human Rights Legal Aid against 1st -13thDefendants to the Assistant Inspector General of Police dated 10/4/2017.
  6. Exhibit C6 � certificate of authenticity of pictures snapped with a digital camera dated 1st August 2018.
  7. Exhibit C7 (a) and (b) � pictures of vehicles/injuries sustained.

On the 22/5/2019, Innocent Dim (initially the 5thDefendant), was announced dead by Mr. Agu, who was initially the 4th, 5th and 7thDefendants�Counsel. Consequently, hisname was struck out from this cause as the 5th Defendant and the list adjusted to read 14 Defendants as against the original 15 on record.

CW1 concluded his testimony that same day. The Claimants went on to presenta second witness (CW2) Chizoba Izuogu (the3rdClaimant), who adopted his witness disposition filed on the 24/8/2018 and relied on same. He too was duly cross examined by the Defendants� Counsel whereupon the Claimantsfinally closed their case.

1ST, 2ND,3RD,5TH, 7TH,8TH,9TH,10TH, 11TH, 12TH,13TH,AND 14TH DEFENDANTS� CASE.

The first set of Defendants opened their case on the 6/6/2019.Okeke Daniel (the 1stDefendant),testified on behalf of the 1st setof Defendants as DW1. Adopting his deposition on oath, he tendered a total of 5 documents admitted and lettered exhibits D1-D5. He was cross-examined by Counsel to the Claimants. The documents tendered by the first set of Defendants� witness are:

  1. Exhibit D1 � Copy of charge sheet in charge No. MID/34C/2017 � COP V. Charles Ani & ors;
  2. Exhibit D2 � Copy of the petition to the office of the DeputyInspector General of Police dated 17/5/2017;
  3. Exhibit D3 � Copy of charge sheet No MID/84/2017 � COPV. Chinedu Dim & ors.
  4. Exhibit D4 �Copy of the judgment in suit No FHC/OW/CS/190/2017 delivered by Honourable Justice Inyang dated 28/6/2018.
  5. Exhibit D5 � Copyof the letter from the State Chairman of N.U.R.T.W of Imo   State to the 1st Claimant dated on the 13th of June, 2017.

DW1 was asked some questions specifically by this Court pursuant to Order 44 Rule 1 of this Court�s rules. This was in order to clarify the ambiguity concerning when the Defendants� witness believe the EXCO members were elected and when their tenure was supposedly to end. To these questions, he had answered that they were elected for their second tenure in September 2015 and the tenure shall end by September, 2019�See pages 35 � 38 of the Records of Proceedings. Thereafter, the 1st set of Defendants closed their case on that same day.

4TH AND 6THDEFENDANTS� CASE.

The second set of Defendants also opened their case on the same 6/6/2019. C. Agu,their learned Counsel, orally sought for leave to deem as properly filed and served, theirStatement of Defence/Counter Claim filed out of time on 23/1/2019. Same was granted whereupon the Claimants� Counsel applied consequentially for leave to deem as properly filed and served, theClaimants�Reply and Defence to the 4th and 6th Defendants�Statement of Defence/Counter Claim which isdated 12/3/2019.Upon granting both prayers,DW2 Echezona Dim (6thDefendant), testified as witness on behalf of the4thDefendant and himself. Again, adopting his written statement on oath as his evidence in chief dated 23/1/2019, he tendered one exhibit only which was admitted as Exhibit D6 � receipt by DW2�s lawyer dated 20/9/2018. He thereafter adopted his deposition in the Counter Claim against the Claimants.

Interestingly, exhibit D6 tendered by DW2 has obvious discrepancy as it is different from the front loaded copy filed with the other pleadings and processes by the second set ofDefendants. Whereas the front loaded copy is dated 27/9/2018 and was issued by one Ama Akalonu, the admitted Exhibit D6 was issued by one Credo Legal and dated 20/9/2019. It was however admitted by this Court despite the fact that no objection was raised by theClaimants�Counsel. This Court shall consider what weight to attach on Exhibit D6 in the course of making its findings shortly. Meanwhile, DW 2 was subsequently cross examined by theClaimants� Counsel on the same day.

Portions of all witnesses� testimonies in this cause may be relied upon in the course of making my findings.

Upon the conclusion of trial,the respective Counsel for these parties were granted the required number of days by leave of this Court, to file their respective Final Written Addresses and Submissions. Consequently, their final briefs having been exchanged, were adopted individually on 16/10/2019 whereupon this case was adjourned to today, 30/10/2019, for pronouncement of this here judgment.

FINAL ADDRESS AND SUBMISSIONS OF THE FIRST SET OF DEFENDANTS:

The first set of defendants filed their final written address on 25/06/2019.

They raised two issues for determination.

  1. Whether the Claimants have locus standi to inquire into the accounts and day to day running of Ideato� North branch of the National Union of Road Transport Workers having not proved their membership of the branch to the satisfaction of the court?
  2. Assuming without conceding that the Claimants are members of the 14thDefendant union, whether this suit is maintainable in law in view of the provisions of exhibit C1?

Their Counselfirst submitted that these Claimants did not prove their membership of the 14thDefendant Union (hereinafter known as NURTW) to be entitled to the reliefs sought pursuant totheir exhibit C1 which is the constitution of NURTW. As such, they have failed to establish their claims.

Counsel submitted further that ultimately, these Claimants� reliefs will either fail or succeed based on the fate of their exhibit C1 and exhibit C2 a � d (purported membership identity cards). Contrarily, the said exhibit C1 which is alleged to be the constitution of NURTW, is accordingly a document that has boldly written thereon the words �Com. Hon. Dominic Ezebunyi Vice State Chairman Anambra State�. That this casts serious aspersionsas to the membership of the Claimants.

Counsel further submitted that if none of the 28 Claimants personally hasa constitution of the union they allege they belong to, to the extent that they had to photocopy from Anambra State, it suggests therefore that their membership as purportedly sought to be established by their exhibit C2, is doubtful.

Counsel notwithstanding the above argument, relied uponthe provisions of Article 6 of exhibit C1, stating that certain fees are prescribed to be paid by individual members of NURTW. Accordingly also, by section 2 of the said article 6, these fees are to be duly receipted. The Claimants therefore did not show any evidence of payment of these daily fees or explanation why receipts were not obtained. They accordingly have not established their payment of any fees to the union.

Learned Counsel also referred to the description contained in exhibit C5, which is the letter purportedly written by theHuman RightsLegal Aid representative on behalf the Claimants and addressed to the AIG�s Office Zone 9 Umuahia, wherein the 1st Claimant wasdescribed as a �native of Akokwa Ideato-North Local Government, a lagos based trader with trading license- DIM Pastures LTD and shop address as DO 94 AbujaChester BBA Trade Fair Complex Badagry Express Road�. Accordingly, a successful business man cannot contrarily, become a member of NURTWIdeato-North Branch.

Mr. Osuji further submitted that judging from thecomplaint made in exhibit C5 as gleaned from the second to the last page of the said exhibit that is captioned �Background Antecedent�, it is clearly shown that the reasonfor petitioning of the AIG was subsequently changed after it was sent. That theClaimants� complaint in exhibit C5 was initially against the 2ndDefendant who they claimed was in charge of NURTWOkigwe, Orlu and Owerri units. It was alleged that they had complained to one Dr. Odozo, who is the Zonal Chairman of NURTW and he in turn referred them to 1stDefendant. As such, it was when the 1stDefendant refused to removethe 2ndDefendant as an official of NURTW that led to this suit meant to purportedlyunseat all executive officers of NURTW and not just the 2ndDefendant.

Counsel is convinced that theseClaimants have not established to thisCourt that they are members of Ideato �NorthBranch of NURTW. Therefore, they cannot ask for account of monies contributed by members and they can not also call for elections not being delegates of the Imo StateDelegates�Conference that elects officers. He referred toArticle 19(5) of exhibit C1. Counsel submitted on that by Article 42(4) (i) of same exhibit C1, any memberwishing to hold elective office shall start from the unit of the union. There is accordingly, no evidence that theseClaimants belong to any unit under the Ideato � North Branch. They cannot be delegates therefore to any branch election.

The Supreme Court case of Yar�adua v. Yandoma (2015) ALL FWLR (PT 770) 215, 1257-1258 was referred towhere it was purportedly held that a person is said to have locus standi if he has shown sufficient interest in the action and his civil rights and obligations have been or are being in danger of being infringed.

Counsel submitted that where a party has no locus standi, the Court will have no jurisdiction to hear and determine any claim/action � See Dada v. Ogunsanya (1991) 3NWLR (PT 232) 754.

Counsel concluded his submission on issue 1that the Claimants have not shown that they have locus standi to inquire into the account and day to day running of the Ideato – North branch of NURTW having not substantiated their membership of the said union branch.

On issue 2, learned Counsel submitted that even if the Claimants are members of the 14thDefendant union, it is doubtful that this suit is maintainable in law in view of the provision of exhibit C1. He also submitted that the Claimants are in court to challenge the purported over stay in office by the 1st set of Defendants and other breaches of exhibit C1 levied against his clients. Learned Counsel further stated that by the provisions of article 42 (8) of exhibit C1, a right of appeal against the decision to Orlu Zonal Office, then to Imo State Councilwhich the 13thDefendant is the Chairman of, from there to the South East Zonal Council and finally to the national delegate conference before any suit can lie. However, the only step taken by these Claimants is as contained in exhibit C4.

Counsel further submitted that before exhibit C4 was written on the 12th of February 2018, the13th and 14thDefendants had written to the 1stClaimant on the 13th of June, 2017, which was tendered as exhibit D5. Exhibit D5 made it clear that the Claimants are not members of the 14thDefendant union and are not entitled to inquire into the activities of the union. The Claimants having not taken any appropriate steps before filing this suit, renders same null and void as the conditions precedent for the settlement of disputeswere not followed by them.

Counsel also submitted that CW1 admitted during cross examination that the Federal High Court suit in exhibit D4 is substantially the same as this suit. It means he has come to this Court to relitigate on facts and issues already decided by a competent court of record and this suit is therefore incompetent.

Counsel also urged this court to hold this suit as premature and ought to be struck out.

In concluding issue two,Counsel suggested that the joinder of father and brothers of the 1stClaimant as parties in exhibit D4 and the present suit is reprehensible. The 1st and 2nd sets of Defendants accordingly deny that the 4th, and 6thDefendants particularly are members of the 14th Defendant union. But assuming without conceding that they are even members, it is agreed on both sides that they are not officers of the union, so why make them parties when they have no business with the management of the branch union?

Counsel finally urged the Court to hold that the evidence laid by the Defendants outweigh those of the Claimants� when placed on an imaginary scale and therefore urged the court to hold this suit incompetent and unsuccessful.

4THAND 6TH DEFENDANTS� FINAL SUBMISSIONS:

4th and 6thDefendants filed their final written address on 26/06/2019 wherein they raised two issues for determination, thus:

  1. Whether the statement of claim and evidence adduced by the Claimants disclosed any reasonable cause of action against the 4th and 6thDefendants.
  2. Whether the 4th and 6thDefendants are entitled the award of special and general damages against theseClaimants.

On issue one, Counsel started his submission by citing the SupremeCourt position in the case of Cookey v.Fombo (2005) All FWLR (pt.271) page 38-39 paragraph H to C where it was accordingly held that ��the factual situation on which the plaintiff relied on to support his claim must be recognized by law as given rise to a substantive right capable of enforcement or being claimed against the defendants�.Counsel further submitted that when an objection is raised that the statement of claim does not disclose any reasonable cause of action, it becomes the Court�s obligation to decide whether or not there is a reasonable cause of action against the Defendants � Cookey v. Fombo (supra). He iterated that a critical study of the statement of facts here will reveal there is no discernable cause of action against the 4th and 6thDefendants. As such, urged thisCourt to dismiss this suit as it concerns the 4th and 6thDefendants. He cited and relied on Chidi B . Nworka v. Mrs. Ann Ononeze-Madu & ors. (2019) LPELR- 46521 (SC) inter alia.

On issue number 2 which is whether the 4th and 6thDefendants are entitled to the award of special and general damages against the claimants learned Counsel argued that general damages are the loss which flow naturally from a party�s act. On this, counsel cited Adekunle (RTD) v. Rockview Hotel LTD (2003) LPELR -54- 14 (CA). Accordingly, the law defines �damages� as what the law presumes to have accrued from the wrong complained of for the reason that they are its immediate, direct and proximate result or such as necessary results from the injury � Abdulaziz and Anor V. Honourable Attorney-General of the Federation (2013) LPELR-22128 (CA).

Counsel opined that the wrong or injurythe 4th and 6thDefendants have complained of in this suit is the unreasonable and most ridiculous inclusion of their names as Defendants in this matter. It naturally follows therefore that since the Claimants have in a most insensible manner taken out a frivolous and vexatious suit against these two Defendants, they the (4th and 6thDefendants) are entitled to general damages.Counsel further cited the case of Aluminum Manufacturing Co. Nig.Ltd V. Volkswagen of Nigeria Limited (citation supplied) where it was held that �special damages are those damages which are given in respect of any consequence, reasonably and probably arising from the breach complained of. They impute pecuniary losses which have crystallized in terms of cash and values. Such special damages must be specifically pleaded and proved strictly�.Counsel argued that the 4thand 6thDefendants have proven they are entitled to special damages by the production of thereceipt tendered by them at the hearing.

In conclusion, learnedC. Agu argued that from the gamut of the facts and evidence provided by them, this suit discloses no reasonable cause of action against the 4th and 6thDefendants. The Claimants are therefore liable in damages for bringing a frivolous and vexatious suit against the said Defendants.

 

CLAIMANTS� FINAL SUBMISSIONS:

The Claimants�Counselin his final written address formulated two issues for determinations as follows:

  1. Whether the Claimants are members of the National Union of Road Transport Workers (NURTW)?
  2. Whether election has been conducted since 31st November 2003 up till date to elect the executive members of the National Union of Road Transport Workers, Ideato-North Branch in Imo State?

On the 1st issue, Mr. Onuegbu submitted that the Claimants pleaded in their paragraph 1 of their statement of facts and paragraph 4(a) of their reply to the statement of defence of the first set of defendants, that these claimants are bona fide members of the National Union Road Transport Workers, Ideato-North Branch. They accordingly tendered their union identity cards which were admitted in evidence without objection as Exhibits C2(A), (B), (C ), and (D).

 

Counsel added that on 6/6/2019, DW1 under cross examination was asked by court �How can you tell if a person is a member or not� and his reply was that �from theiridentity cards�. Counsel emphasized that facts admitted need no further proof. He relied onDR. G.S Obo V Commissioner OfEducation Bendel State Of Nigeria & Anor (1993) 2NWLR (PT. 273) 46 on page 58 paragraph H, Ratio 7, inter alia.Accordingly, in MahammaduBuhari & ANOR V. Chief Olusegun Aremu Obasanjo & 267 Ors (2005) 2NWLR (PT. 910) NSOFOR, J.C.A said that �now admissions are the strongest form of proof. What is admitted requires no further proof�.

 

Arguing further counsel cited section 167 (c) of the Evidence Act, 2011 on presumptions of the existence of certain facts in the common course of conducts, etc. As such, before one can be issued with an identity card of the NURTW, such a person must been registered as a member.The identity cards tendered by the Claimants and admitted in evidence speakfor themselves.  He stated further that the first Defendant alleged in paragraph 15 of their statement of defence that the said identity cards were forged but without pleading the particulars of forgery and proving same. The first set of Defendants have the burden to prove the alleged forgery beyond reasonable doubt. Counsel relied on Faith Enterprise Ltd v. BASF NIGERIA LTD (2001) 8NWLR (pt. 714) 242 on page 250, paragraphs C-D inter alia where Obaseki J.S.C. had said �fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly�.

Counsel continued his argument and pointed out the fact that DW1 admitted that members of the National Union of Road Transport Workers can be identified by their membership identity cards, therefore, he urged thisCourt to hold that theseClaimants as full fledged members of National Union Road Transport Workers.Furthermore, he added that the Claimants pleaded the document titled �Transgressing The Union Constitution With Impunity� dated 12/2/2018 which was admitted in evidence as exhibit C4 without any objection. Accordingly the 14thDefendant never responded to the said document.This document dated 12/2/2018 amounts to a business letter from members of NURTW Ideato- North LGA  branch addressed to the State branch of NURTW, Imo State. His conclusion on this point is that in law, a recipient of a business letter must reply to them, dispute or deny their contents if they are false, failing which the silence would be regarded as an admission of or agreement with the contents of such letter. Counsel cited SALEGWANI V. EMMANUEL M. EBULE (1990) 5NWLR (PT. 149) 201 on page 217 paragraph G � H, inter alia. He submitted that the case above is similar to the facts in issue. His position is that theseDefendants ought to have replied the Claimants� letter denying their membership and the fact that election has not been held since 2003, especially the 14thDefendant union per adventure the claims were falseas alleged.Thus, by their conducts, the Defendants must be deemed to have admitted the contents of the said letter (Exhibit C4).

 

On issue number 2 which is whether election of executive members of the NURTW of Ideato-North branch was held from 2003 to date, Counsel to the Claimants submitted that the burden of proof lies on the first set of Defendants to prove the fact that election was carried out and not on the Claimants who dispute the fact that no election has been conducted since 2003. He relied the averments in paragraphs 3, 4, 6, 7, 8, 9, 10, 11, and 12 of the Claimants� statement of facts and pointed out the fact that the first set of Defendants in their paragraph 7(a) of their statement of defence stated that elections were held in 2011 and in 2015 to elect executive officers of NURTWIdeato- North branch.

He cited and relied on HON ALPHONSUS UBAH IGBEKE V. SENATOR JOY EMORDI & 3ORS (2010) 11NWLR (PT. 1204) inter alia to submit thateven Ariwoola, JCA concurred in that case that the burden of proof lies with the party who asserts the positivity of a fact and not the negative � see REYNOLDS CONSTRUCTION CO. LTD V. OKWEJIMINOR (2001) 15 NWLR  (PT 735) 85 @ 98where the court held that �it is trite law that the burden of proof lies on whoever asserts the positive but not the negative.Where issues are joined by parties, the burden of proof lies on the party alleging the existence of the fact�. The Claimants� Counsel argued strenuously that where elections are alleged to have been conducted, it behooves on that party to establish positively, how, when and in what manner, such elections were indeed conducted. This will require the tendering of sufficient evidence likely enough to convince any tribunal of the truth of such assertion.

Counsel also cited the case of Great Ovedje Ogboru & Anor V. Dr. Emmanuel Ewetan Uduaghan & 2ors (2011) 2 NWLR (PT 1232) where per DONGBAN- MENSEM, JCA. restated the legal position on pages 590, para H, 591, para A-H, 592, Para A-H, 593, Para A-F.

Counsel iterated that perhapsnot well- known is that there is yet another kind of burden which is dictated by the nature of pleadings. This is known as burden of proof on the pleadings. Unlike the general burden referred to earlier. The burden of proof on thepleadings accordingly rests squarely on any party whether the Claimant or the Defendant who substantially asserts the affirmative of the issue. This category of burden is fixed at the beginning of the trial by the state of the pleadings, and it is unchanged throughout the trial, exactly where the pleadings place it. On this he cited and relied on the case of Imana V. Robinson (1974)6 SC 83.

It was further contended in this direction that the burden of proof on pleadings has an ancient ancestry. After tracing how the English Court derived the concept of burden of proof in civil causes, he submitted that they are no reasons whatsoever to depart from the eloquent exposition of law which in any event, is the correct restatement and consistent position of the apexcourt.As such, we are bound by it and under obligation to ignore any other decision including decisions of this court, which to employ the apt expression of the apex court, fail to distinguish between the two distinct and frequently confused meanings which have always been attached to the words �burden of proof� � See Elemo. and ors. V. Omolade and ors (Supra).

Counsel again cited the case of Dr. Olusegun Agagu V. Rahman Olusegun Mimiko & 17ors (2009) 7NWLR (PT 1140) 342 where it was held in the judgment delivered by Abdullahi, P.C.A on page 431 paragraphs C to E said:

�It was the first respondent�s case that there was no election held. The appellant who incidentally was the first respondent to the petition respondent that the election was conducted. The burden of introducing evidence otherwise known as evidential burden squarely rests on the party who substantially asserts the positive before evidence is adduced. Thereafter the burden of proof rests on the party who will fail if no further evidence is produced. Where this is done, the burden of proof will shift on the other party to introduce evidence, which if accepted, will then defeat the claim of the petitioner�.

Abdullahi, P.C.A on page 432, paragraph B concluded as follows.

�the appellant, it seems to me, who asserts substantially that the election was conducted has the evidential burden of proving that the election was held. He (however) did not�.

Counsel further submitted that none of the decisions of the Court of Appeal cited above have so far, been set aside by the Supreme Court and it is good law which is still binding on this court. He cited and relied on a host of other judicial authorities to further solidify his position on this issue and for added measures.

Counsel continues his submission that DW1 admitted under cross examination that the 14thDefendant has records of elections conducted in respect of executive members of NURTW Ideato-North Branch which they failed to produce in court to prove their positive assertion. Assuming without conceding that the records in their Ideato-North branch were even burnt down as they falsely claimed, the burden still rested on them to prove this assertion. Counsel urged the court to invoke the provision of section 169 (d) of the Evidence Act, 2011 and hold this issue in favor of the Claimants.

Moving on to issue number 1 formulated by Counsel for the 4th and 6thDefendants, Counsel to the Claimantssubmitted that the Defendants never challenged the averments of paragraphs 15, 16 and 17 of the Claimants� statement of facts over the 4th and 6thDefendants being members of the NURTW Ideato-North Branch, which evidence was amplysupplied through CW1.Accordingly, the failure to cross examine a witness upon a particular matter, impliesacceptance as the truth, of the evidence of such witness. On this he cited the case of Isaac Gaji and ors V. Emmanuel D. Paye (2003) 8NWLR (pt 823) 583, whereat Edozie JSC had held that �the effect of failure to cross examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness.

Learned Claimants� Counsel urged the court to resolve issue 1 of the 4th and 6thDefendants against them.

On issue 2 formulated by the 4th and 6thDefendants, Claimants�Counsel submitted that for a party to succeed in special damages, the party must specifically plead and strictly prove such damages. He rightly cited Simon Bodi V. Ishaya D. Agyo (2003) 44 @ 66, paras  A-B, Nzeribe V. Dave Eng. Co ltd (1994) 8NWLR (pr.361) 124 @ 140.

Counsel argued that the Receiptfront loaded by 4th and 6thDefendants dated 27/9/2019and which was prepared by AMA AKALONU & CO., is at variance withthe one tendered in court and admitted as exhibit D 6 dated 20/9/2019 and preparedbyCREDO LEGAL. Therefore, this piece of evidence goes to no issue and must be discountenanced. He cited Ezeonwu V. Onyedi (1996) 3NWLR ( PT 438) 499 @ 527, inter alia and urged the Court not to be swayed by the alleged deliberate wrong submissions by Counsel for the 4th and 6thDefendants and therefore dismiss their counter- claim for lacking in merit.

Reverting next to issue 1 raised by the first set of Defendants, learned Counsel submitted that the first set of Defendants� Counsel did not construe the purport of Article 6, Section 2 of exhibit C1 which accordingly provides as follows:

�All professional commercial drivers operating in local government owned motor parks, township buses and taxis shall pay 100naira per member per day upon which official printed receipts shall be issued to ensure proper accountability of the moneys collected from the members monthly�.

He submitted that emphasis is on �all professional commercial drivers� and therefore, Article 6, Section 2 of exhibit C1 is allegedly not applicable to theseClaimants. Accordingly, the 1stClaimant does not need to manage his business in Lagos personally and that the argument by theCounsel to the 1st set of Defendants about 1stClaimant being a successful business man is untenable.

He is convinced that by virtue of article 5, Section 8, exhibit C1, a member of the union can maintain his/her membership in either a branch or a unit. The Claimants have thus proved same by producing their membership identity cards.

He stated further that the 1st set of Defendants�Counsel misapplied Article 42 (4) (i) of exhibit C1, which states that a member of the union can maintain his/her membership in either a branch or a unit of the union.He said that theClaimants are not seeking for any elective offices in the union at the State level or National level but at the Local branch which is in line with the provision of Article 42(4) (i) of exhibit C1. The Claimants have accordinglysufficiently shown their interests and that they are members of the 14thDefendant union and so have the locus standi to institute this action.

On issue 2 formulated by Counsel for the first set of Defendants, Counsel to the Claimants submitted that the 1st set of Defendants made a deliberately wrong submission on Article 42(8) of exhibit C1 which provides for the right of appeal by any member or group of members who feels dissatisfied with any form of disciplinary measures taken against him/them.Counsel said that the pleadings of both parties do not show that any form of disciplinary measures was taken against the Claimants which require an appeal to any higher body before instituting an action in this court.Counsel again argued that without conceding that any disciplinary measures were taken against theseClaimants, they lodged a complaint to the State level of the union before initiating this action which satisfied the requirement of Article 42(8) of exhibit C1.Counsel referred to paragraph 21 of the statement of facts and exhibit C4. Finally, Counsel concluded that the Claimants have made out a case warranting the honourable court to grant the reliefs sought and to dismiss the cross action against them by the 4th ad 6th Defendants.

COURT�S DECISION:

I have carefully considered the processes filed and all evidence adduced including the exhibits admitted and perused the arguments and submissions of the respective learned Counsel to the parties. The main issue to be determined by the Court from the issues raised by the respective Counsel, in my view is whether from the totality of the evidence before the court, the Claimants are entitled to judgment in this suit.

As shown from the processes filed and evidence adduced by the parties, the fact in issue is that the Claimants allege that the present executives of the National Union of Road Transport Workers(NURTW), Ideato-North LGA Branch, have been in and held office from 1999 whereas their tenure ought to have expired since 31/11/2003, i.e they have held elective offices of NURTW Ideato-North Branch for about (14) years which ultra vires their union constitution (Exhibit C1). Accordingly , they want this court to order fresh elections to be conducted and to also mandate the Defendants to render accounts of their stewardship of the 14thDefendant union to the members. They also seek the award of the sum of N200, 000.00 being general and exemplary damages for filing this suit.

Whereas, the first set of Defendants on the one hand contend that the Claimants are not members of the 14thDefendant union, alleging that they do not know the 2nd -28thClaimantsand as such, theylack the requisite locus standi to institute this suit, the 4th and 6thDefendants on the other hand, deny even being members of the 14thDefendant union and so these Claimants have no reasonable cause of action against them. The inclusion of their names was accordingly as a result of a long family feud between them and their brother who is the 1stClaimant in this suit. They ask for the sum of N900,000.00 (Nine hundred thousand naira) as special damages and  N500,000.00 (Five hundred thousand naira) as general damages.

Several questions were raised by the respective Counsel in the course of making their arguments. Suffice at this stage to consider the issues raised by these 2nd set of Defendants first for the purpose of also determining their cross action filed against the Claimants. It must be noted that the 4th and 6th Defendants had raised a motion on the 9/10/2018 seeking for this Court�s order to strike out their names from this suit. The Claimants had reacted to this motion by the filing of a counter affidavit on the 23/10/2018. This Court had intercepted the adoption and arguments on the said application and instead, ordered an accelerated hearing believing it wise to allow the matter be determined in the final judgment of this Court.

 

CASE AGAINST THE 2nd SET OF DEFENDANTS:

The 4th and 6th Defendants� Counsel had raised two issues for determination in their final written address which were equally adopted by the Claimants� Counsel, to wit:

  1. Whether the statement of facts and evidence adduced by the Claimants disclosed any reasonable cause of action against the 4th and 6thDefendants?
  2. Whether the 4th and 6thDefendants are entitled to the award of special and general damages against theseClaimants?

Now therefore, in considering whether the 4th and 6th Defendants are members of the 14th union to the extent to which these Claimants have any reasonable cause of action against them, I had cause to examine the testimony given in open Court which were supported by the necessary depositions on oath by both the Claimants� witnesses and the 2nd set of Defendants� here. As a matter of fact, the first mention of the 4th and 6th Defendants is as contained from paragraphs 17 and 18 of the 1stClaimant�s deposition of 24/8/2018. It was stated therein that they (along with some of the Defendants), assaulted the 1st Claimant on the 20/1/2017 after the meeting he had with the executives of the union whereat he had opposed their continued holding of office as executive officers. He alleged that they are thugs and were responsible for attacking and pursing him while he tried to escape in his Toyota Corolla vehicle which fell into a ditch as a result of the pursuit � paragraph 19 of his deposition.

These 2nd set of Defendants denied these claims against them and stated that they are brothers to the 1st Claimant. In the witness� deposition of 25/1/2019, Echezona Dim (the 6thDefendant and DW 2), stated that he does not reside in Nigeria and he has never been a member of the NURTW. He said further that the 4th Defendant sued here, was also not a member of NURTW and that he (4th Defendant,)had sponsored the 1stClaimant to Malaysia and even given him N3M upon his return to Nigeria to start off his own business. He also mentioned that the 1st Claimant had harbored personal grievances against the family members which culminated to the suit instituted at the Federal High Court which was dismissed on28/6/2018 by Inyang, J. for lacking in merits. In their counter claim, they sued for N900,000 being the purported professional fees paid their Counsel for this suit instituted against them without reasonable cause.They however did not supply the name of the Counsel and the date they made the payment, or the manner in which it was made whether by cash or transfer etc, in their deposition.

Against this, the Claimants filed a reply and a defence to the Counter Claim and in the further written deposition made by the 1st Claimant (CW1) dated 13/3/2019, he had alluded that the 1st set of Defendants are union �hit men� utilized to deal with any one who was opposed them � paragraph 6, 18,  and 19.

Therefore, the burden on the Claimants is to prove the following facts:

  1. That 4th and 6th Defendants have been officials or members of the 14thDefendant union from 1999 till date as testified by CW 1 in his evidence.
  2. That   4th Defendant has been in the country from January 2018 till the commencement of this suit contrary to what he alleged.
  3. The activities of the union involving the 4th and 6th Defendants as purported members of National Union of Road Transport Workers Ideato- North Branch which were injurious to the Claimants� rights.

It is only when these Claimants have crossed these initial hurdles that the burden of proof in the instant case shall shift to the 4th and 6thDefendants. Note that the Claimants must rely on the strength of their case to enable them obtain judgment in their favour and not on the weakness of the Defendants� case � see AIC ltd V. NNPC (2005) NWLR (pt. 937).

 

It is trite law that the onus of prove is on he who asserts. Point blankly, theseClaimants� evidence before the court are quiteinsufficient to establish that the 4th and 6th Defendants are members of the 14thDefendant union or that they are hired thugs of the remaining Defendants as variously alleged in their depositions and testimonies under cross examination in open Court. Having denied that they were union members, the Claimants are obligated to produce concrete evidence in prove of the fact that the 2nd set of Defendants were union members. The Claimantswho could easily and conveniently set forth allegations before thisCourt, were unable to satisfy the Court of its authenticity. Their Counsel had relied effortlesslythough, on their averments made within their statement of facts and direct evidence given by CW1 and even stated that the implication is that the 2nd set of Defendants accepted as the truth, the evidence produced becauseit was not effectivelychallenged or contradicted under cross examination. I believe that without even analyzing any other evidence, Exhibit D4 which is the judgment of the Federal High Court in suit number FHC/OW/CS/190/2017 delivered by Honourable Justice Inyang dated 28/6/2018, there is justifiable cause to believe that no civil wrong or crime was properly made out against these 2ndset of Defendants. The judgment of the Federal High Court in the matter of the application for the enforcement of the 1st Claimant�s purported fundamental rights, found thatthe application was unmeritorious against these 2nd set of Defendants who were named there as the 8th and 11th Respondents. Specifically, the FHC stated that the alleged case of manhandling, seizure of vehicle of the 1st Claimant and severe beating, were unproven by the evidence adduced there � see Exhibit D 4. In view of that decision therefore, the issues akin to those now alleged against the 2nd set of Defendants are estopped from being raised again since they are considered res judicata. Section 174 (1) and (2) of the Evidence Act, 2011 is apposite. It provides that:

174. (1)            If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was or might have been decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue in any subsequent proceeding.

(2)        Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.

I therefore cannot accept that the surviving 2nd set of Defendants are members of the 14th union or that they were involved in thuggery and the alleged beating and manhandling of the 1st Claimant or the alleged seizure of his orany vehicle.

In fact, aside from the question of membership ofthe 14th Defendant union by the remaining Defendants, the issues of alleged thuggery, beating and or manhandling of the 1st Claimant and seizure of vehicle are equally estopped from being raised against the 1st set of Defendants in view of my finding above.

With regards to the cross action against the Claimants, I have absolutely no doubt in my mind that the special damages sought to be proved against them, must fail completely. This is because the special claim has no particulars upon which any finding can be positively made. The cross action simply mentioned that the 2nd set of Defendants claim the sum of a N900,000 as legal fees paid to their Counsel. A diligent particulars must establish when the money was paid, in what manner, to whom, possibly where and by whom. To make matters worst, the receipt tendered as exhibit by them, is at variance with the one they front loaded. Whereas the exhibit front loaded bears AMA AKALONU & CO. and is dated 27/9/2019,the one tendered in open court through DW 2 and admitted as exhibit D 6is dated 20/9/2019 and preparedbyCREDO LEGAL. There is no curing this piece of evidenceand no evidential weight can accordingly be derived from same. The claim for special damages raised by these 2nd set of Defendants is therefore refused. The cross action is thus dismissed.

Regardless, the 2nd set of Defendants are entitled to have these claims dismissed against them on the basis of my penultimate finding. They are also entitled to the award of general damages which I adjudge at the sum of N100,000.00 only against these Claimants at N50,000 each.

CASE AGAINST THE 1st SET OF DEFENDANTS:

The 1st set of Defendants raised two issues for determination.

  1. Whether theseClaimants have the requisite locus standi to inquire into the accounts and day to day running of Ideato-Northbranch of the National Union of Road Transport Workers having not proved their membership of the branch to the satisfaction of the court?
  2. Assuming without conceding that the Claimants are members of the 14thDefendant union, whether this suit is maintainable in law in view of the provisions of exhibit C1?

As regards the above two issues raised by the remaining Defendants which were equally adopted by the Claimants� Counsel in his final written address, this Court is first of all, convinced thatthe membership of these Claimants to the 14thDefendant unionis not in doubt because of their Exhibit C 2 (a) to (d) which were tendered before this Court. The 1st set of Defendants had argued strenuously against this being the basis for believing that the Claimants are union members of the 14th Defendant; however, they have failed to produceany scintilla of evidence tothe contrary to establish otherwise, that the Claimants are union members.I am persuaded to, based on a preponderance of available evidence therefore, accept the fact that these Claimants are in factcard carrying members of the 14th Defendant union both at the time of instituting this cause and as ofthe date of pronouncement of this here judgment. This perception is reinforced by the fact that Exhibits C 2 (a), (b), (c) and (d) tendered by the Claimants are indeed presumptive that they had complied with all the laid down guidelines and steps necessary as contained in their union constitution (Exhibit C1) before they were finally issued with identity cards thus recognizing them as bona fide card carrying members of the 14th Defendant union. Indeed, Section 167 (c) of the Evidence Act 2011 as cited by their Counsel, lends furthersupport to this opinion.

The Claimants having first asserted the positive claim that they are bona fide members of the 14th Defendant Union, it behooved on the Defendants to establish and provethe negativity and contrary assertion that they are not. It definitely would have satisfied this Court that the Claimants were not members if the Defendantshad produced any recordor document to show otherwise like a nominal roll of all members of the union. Although the Defendants claim that the union office was raised down by fire, it was up to them also to have produced verifiable evidence like a police extract accompanied by a duly sworn affidavit to establish that all documents which could have been used in these proceedings, were loss during the alleged fire incidence. Merely rejecting the Claimants as members of the 14th union will not suffice. In fact, theClaimants� identity cards as evidence of membership of the 14thDefendant union, was to some extent, admitted by DW 1 in his testimony before the court when he stated that a member of the union is recognized by his identity card. It is trite law that what is admitted needs no further prove of.

Thus said, issue one of the Defendants� raised issues for determination is hereby  partially answered in the affirmative.

I reckon however, that it is one thing to become a nominal union member and yet another to be qualified to hold elective office of the 14th Defendant union as provided for in Exhibit C 1 � Article 19 (5) (iii).It is quite another thing entirely to claim that a member is a financial stake holder of a union � (Articles 5 and 6). Nevertheless, since the Claimants have not sought for any relief to accord any of them with eitherrights to contest any electiveposition of the union or to be declared as financial or subscribed stake holders of the union, it is therefore pointless for this Court to make any further opinion on this. The above categorization is clear from the provisions of Article 5 of the union constitution on membership of the union.

What these Claimants specifically seek is for this Court to:

  • Declare that in line with the constitution of the National Union of Road Transport Workers (N.U.R.T.W), 2015 (As Amended) , the four (4) year tenure of the 1st, 2nd, 8th , 9th, 11th, and 12th  Defendants elapsed since 31st November, 2003, i.e. about fourteen (14) years ago;
  • AN ORDER of this Honourable Court directing the zonal administrative council of National Union of Road Transport Workers (i.e. the 14th Defendant) to take over the leadership of Ideato-North Branch of National Union of Road Transport Workers (N.U.R.T.W)to forestall blood-shed and to conduct fresh elections for the emergence of the new executives of the Ideato-North Branch (N.U.R.T.W) within three months after the determination of this suit.
  • AN ORDER of the Honourable Court restraining the Defendants, the  Ideato-North Branch of National Union of Road Transport Workers (N.U.R.T.W), their tenure of office having elapsed fourteen (14) years ago.
  • AN ORDER of the Honourable Court declaring the continuous stay in the office and the past fourteen (14) yearsof sit � tight   leadership of the Ideato-North Branch of National Union of Road Transport Workers (N.U.R.T.W) by the 1st, 2nd, 8th, 9th, 11th, and 12th Defendants illegal, unconstitutional and ultra-vires the four years mandate of members Ideato � North Branch of National Union of Road Transport Workers (N.U.R.T.W) given to the 1st, 2nd, 8th 9th, 11th, and 12th Defendants on 31st November, 1999.
  • AN ORDER of the Honourable Court mandating the Defendants to render accounts of their stewardship to the members of Ideato-North Branch National Union of Road Transport Workers (N.U.R.T.W) for the past fourteen (14) years of their sit � tight leadership.
  • The sum of N2, 000, 000.00 being general and exemplary damages for filing and prosecuting this suit.

At this juncture, it is imperative for this Court to determine the following questions:

  1. Although the Claimants are nominal, card carrying members of the 14th Defendant union, can they institute this action against these Defendants for the reliefs sought?
  2. Whether some of these Defendants who are officers of the NURTW Ideato-North, LGA of Imo State, have held those elective positions since 2003 as claimed by these Claimants?

Answering these two questions shall in effect, deal with the remaining unanswered part of the first issue raised and indeed, the second arm of the Defendants� issue for determination above which queried that �assuming without conceding that the Claimants are members of the 14th Defendant union, whether this suit is maintainable in law in view of the provisions of exhibit C1?�

Can these Claimants institute this action against these Defendants?The answer to this is definitely in the affirmative. This is in line with the concept of minority rights as enunciated a long time ago in the exceptions against the rule in FOSS V. HARBOTTLE (citation supplied below) and followed by our Courts in a plethora of decided cases � see ELUFIOYE AND OTHERS V HALILU AND OTHERS (1993) NWLR (Pt.301)570 where it was held that:

Under the rule, the company or the association is the real plaintiff. The action is to remedy a wrong done to the company. Hence the civil rights and obligations of the person bringing the action is not relevant to his competence to bring the action, which in any event is in the name of the company. Thus, the wrong or the irregularity complained of is against the company or association but the relief is against the majority of the members. This is why where the injury or wrong complained of can be cured by the resolution of a simple majority of its members, the court has always declined to interfere. This is because the court does not want to embark upon a futile exercise of its coercive powers. Where however, the wrong complained of cannot be sanctioned by an ordinary resolution of the members, or is ultra vires the company or association, an action can be brought in the name of the company against the wrongdoers to protect the interest of the company or association� Per Omo, JSC.

As far as I can tell, having shown that they are bona fide card carrying members of the union, they may question the validity of the tenure of office of the officers of the union which if established is ultra vires, shall entitle them to the grant of some of their reliefs like an order to remove the officials and an order the conduct of fresh elections.

However, as pointed out in the earlier portion of my finding above, the fact that a person is merely a card carrying member may not ordinarily entitle such personwith full rights or benefits to vote, contest for office or challenge how the accounts of the union are kept. This latter proposition is as expressly captured under Article 5 (11) of the NURTW constitution which provides that �a bona fide financial member of the union, upon notice of not less than thirty days through the General Secretary, State Secretary, Branch Secretary, or Unit Secretary as the case may be, shall have free access to the books of account of the Union�he shall bring to the notice of the union any question raised by him on the account and wait for explanation before taking further action�. 

Instructively, in order to be accorded the status of a financial member of the union, Article 5 (13) specifically and expressly provide that �a member shall pay his/her contributions to the funds of the union regularly. He/she shall endeavor to participate actively in the affairs of the union and shall refrain from any action which may bring the union into disrepute�.

Under Article 7(1) of the constitution, the union shall be governed by this constitution. Thus it suggests that all activities of the union members and officials must be done strictly within the vires of the 2015 NURTW Constitution. This court shall have absolutely no jurisdiction to add, amend, or remove any provision from this constitution which by the way is undeniably the one tendered by these Claimants as Exhibit C1. The foregone background is necessary in other to appreciate and understand the basis of the findings I shall make shortly.It is equally important to state here specifically that these Claimants have so far only established before this Court that they are card carrying members of the union but have failed to establish that they are financial members having not produced any single receipts ofpast payments and or subscriptions made in accordance with the union constitution and or records of such payments made. Nothing has been placed before this court to establish their financial stake in the union beyond the fact that they are recognized nominal, card carrying members. The burden to prove that they are financial members rested on them and this was not satisfactorily established and discharged. Therefore, this is my opinion and I so declare.

Having thus determined that these Claimants have a restrictive right to question the legality of the officials� tenure particularly if their purported illegal stay is injurious to their rights as members of the union, I am bound to consider what the tenure of the officers of the 14thDefendant Union is. By virtue of Article 42 (4) (vii) and (viii) of the NURTW constitution 2015:

(vii)     all elected officers of the union shall serve for a period of four years and shall be eligible for reelection.

(viii)    no candidate(s) for any elective office or position in the union shall be allowed to run for any of the offices for more than two terms consecutively.

Clearly, the 2015 union constitution provides only a four year term for the elected officials at all levels of the 14th Defendant Union, be it at the National, State or Unit Branches. It further provides an additional four year eligibility term and thereafter a ban against further contest.

The allegation by the Claimants is that some of the 1st set of Defendants have been serving asIdeato � North Branch Union officers since 1999 to date. Against this allegation, the 1st set of Defendants deposed that some of them were indeed elected for their second term in office in September, 2015 and so their term shall expire by September, 2019. The burden therefore shifted back to the Claimants to disprove this claim. Unfortunately, they failed so to do because no evidence was produced before this Court to establish when some of these Defendants were elected into those offices. Contrary to the arguments proffered by their learned Counsel Onuegbu, it was not up to the Defendants to have procured the records of the manner they were elected and the proceedings reflecting the date of their elections in this circumstance;but up to the Claimants to evince convincing and probable evidence to prove their assertion. It is not just the question of he who asserts must prove such assertion but also a claimant can only succeed on the strength of his case and not on the weakness of the defendant�s. As such, if like in this case the Claimants first made the assertion that the Defendants� tenure had long elapsed and the Defendants deny the same assertion, the burden again shifts back to the Claimants to evince probable evidence to establish their initial assertion. This burden, I dare say, was never discharged. I therefore find it improbable that the 1st set of Defendants have held elective positions of the 14thDefendant union contrary towhat is asserted by these Claimants, since 2003 to date.

Having thus found, I believe the 1st set of Defendants� claim when they said that some of them were reelected in September 2015 and their tenure consequently expired by September, 2019 particularly in light of the DW 1�s open admission when questioned by this Court. As such, reliefs 2, 3 and 4 of the main claims sought are hereby refused and same are accordingly dismissed.

Relief 5 can also not be granted having held that the Claimants who are although nominal card members, can not initiate proceedings to ask the Defendants to render accounts of their stewardship as union executives. They have not shown sufficientright in this bid and their membership as financial stake holders of the union is quite doubtful. As such, relief number 5 too is refused and same is dismissed.

Relief number 6 which seeks for general damages also fails following the reasons above adduced and the fact that the Claimants are unsuccessful in this cause.

Relief number 1 is granted only to the extent that the constitutional tenure of the Defendants as holders of office of the 14th Defendant Union is for a four years renewable term. Consequentially though, having admitted that their tenure elapsed in September, 2019 this Court shall order that fresh elections be conducted within one month from the pronouncement of this here judgment in other to enable new officers take over the affairs of the Ideato � North Branch of the NURTW if t had not already been done before today. The Claimants may regularize and upgrade their membership statusin accordance with the Constitution of their union should any of them declare or show any interest in any elective position or office. The 13th Defendant who is the State Chairman of the Union, is directed to appoint and delegate such committee as is necessary to immediately take over the affairs of the Ideato-North Branchof theUnionwith immediate effect for the next 30 days onlyfor the purpose of setting up the machinery for fresh elections if it has not already been conducted before today.

Accordingly, except for the consequential order immediately above made, this suit fails. It is hereby dismissed with costs awarded against these Claimants in the sum of N200,000.00.

Delivered in Owerri this 30th day of October, 2019.

 

Hon. Justice I. S. Galadima,

Presiding Judge, Owerri Division.

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