REGISTERED TRUSTEES OF TIPPING OWNERS UNION v. NIGERIA UNION OF MINE WORKERS & ORS
(2010)LCN/4080(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of December, 2010
CA/C/25/2008
RATIO
STANDARD OF PROOF: STANDARD OF PROOF REQUIRED TO PROVE ALLEGATIONS OF EXTORTION AND ILLEGAL COLLECTION OF LEVIES
Since extortion and illegal collection of levies are alleged which are criminal in nature, the allegations must be proved beyond reasonable doubt. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICE
KUMAI BAYANG AKAAHS justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU justice of The Court of Appeal of Nigeria
Between
REGISTERED TRUSTEES OF TIPPING OWNERS UNIONAppellant(s)
AND
1. NIGERIA UNION OF MINE WORKERS.
2. CHRIS WHITE NWAHIE
3. CHINEDU UKWURespondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivered the Leading Judgment): The Plaintiff commenced the action by Originating Summons in the High court of cross River state, Calabar Division on 20/11/2006 as suit No. HC/410/2006. on the 7/2/2007. Ita J. of Calabar Division to whom the matter was assigned asked for a transfer of the said suit to Akamkpa Judicial Division and it surfaced before Eneji, J. as Suit No.. HK/7/2007. The plaintiff sought for a determination of the following questions:
“1. Whether the 1st, 2nd and 3rd Defendants are entitled or empowered by any law to impose or collect taxes, levies, dues or any money by whatever name called from the Plaintiff and its members under the following laws:
(i) Trade Union Act Cap T14(Vol.15) Laws of the Federation of Nigeria 2004.
(ii) The Constitution of Federal Republic of Nigeria 1999.
2. Whether the 1st, 2nd and 3rd Defendant are entitled or authorized by any law to force the Plaintiff and its members to belong to the 1st defendant or to prevent the Plaintiff from existing or conducting its affairs under the following laws:
(i) Trade Union Act Cap T14 (Vol. 15) Laws of Federation of Nigeria)
(ii) The Constitution of Federal Republic of Nigeria 1999
(iii) Companies and Allied Matters Act, 1990.”
The Plaintiff then sought for the following declaratory reliefs jointly and severally against the Defendants.
“1. A DECLARATION that 1st, 2nd and 3rd Defendants are not authorized or empowered by any law whatsoever to impose or collect union dues, taxes, levies or any monies by whatever name called from the Plaintiff and members of the Plaintiff or from the proceeds of the haulage trucks belonging to thee Plaintiff and its members, the plaintiff and its members not being members of the 1st defendant.
2. A DECLARATION that the dues or levies imposed on the Plaintiff and its members by the Defendants are arbitrary, unlawful, illegal, null, void and of no effect whatsoever
3. A DECLARATION that the plaintiff has a legal/civil right to exist and does exist as an incorporated body from 1992 for the purpose of its objectives as incorporated under companies and Allied matters Act, 1990.
4. A DECLARATION that members of the plaintiff have the constitutional right to freedom of association and to freely belong to any Association of their choice without molestation by anybody including the defendants.
5. AN ORDER of perpetual injunction restraining the Defendants, their agents, servants, or privies from enforcing the N800.00 (Eight Hundred naira) union dues or levy or any money by whatever name called on the Plaintiff and its members or further harassing the plaintiff and its members and threatening to prevent the plaintiff and its members from conducting their legitimate business.
6. AN ORDER of perpetual injunction restraining the defendants, their agents, servants or privies from arbitrary imposition of dues or levies on the plaintiff and its members and from tampering with the right of freedom of association of members of the Plaintiff.”
On 7/5/2007 the defendants filed a counter-claim and sought the following reliefs from the Plaintiff:
“1. That the asking or collection of union dues and levied from the said members of the Plaintiff of the Plaintiff does not in law and in fact amount to the plaintiff and its members paying union dues or levies or taxes or any sum to the Defendants.
2. That the Plaintiff and its members should stop forthwith from interfering or hindering the 1st Defendant and its officers from asking and/or collecting union levies an dues from the said drivers.
The Defendants also sought for a determination of the following questions:
1. Whether the 1st Defendant is not entitled to ask and collect its agreed levies and dues from the members without recourse to or restriction from the plaintiff though the said members of the 1st Defendant are employees of the members of the plaintiff.
2. Whether the Plaintiff has any legal right, power, duty or authority pursuant to its status to stop the defendants from asking and/or collecting union levies and dues from the members of the 1st Defendant.
The Originating Summons was supported with a 25 paragraph affidavit and annexures marked A, B, C and D which was sworn to by Chief Augustine Ngwudike, the President of Registered Trustees of the Tipping Trailer Owners Union. Comrade Chris White Nwaehie, the 2nd Defendant deposed to a 28 paragraph Counter-Affidavit on behalf of all the Defendants and also annexed Exhibits A and B. The 2nd Defendant also swore a further and better counter-affidavit of 14 paragraphs after which the Plaintiff deposed to a 17 paragraph further further affidavit in reply to which he annexed several Exhibits.
Thereafter learned counsel to the parties filed written addresses ordered by the court. In his judgment delivered on 14/12/07, the learned trial Judge referred to a letter No. GO/LEP/S/8/Vol. V111/1393 dated 20/09/06, signed by Ekaete E. Okon, for the Special Assistant on Labour Matters and held that it emphatically settled the dispute between the Plaintiff and the 1st Defendant and dismissed the Plaintiffs action. He allowed the counter-claim. Aggrieved by the decision the Plaintiff appealed in its Notice of Appeal filed on 18/12/07. The said Notice contained six grounds of appeal. Leave to amend the Notice of Appeal was granted on 26/11/08. Six additional grounds of appeal were added in the amended Notice numbered grounds 7 – 12 respectively. The appellant formulated 4 issues based on original grounds 1,4,5 and additional grounds 7, 8, 9, 10, 11 and 12. He applied to abandon grounds 2, 3 and 6 respectively.
The issues formulated are:
1. Having regard to Exhibit ‘B’ and the Trade Union Act Cap T14 LFN 2004 whether the trial court was right in holding that the Plaintiff/Appellant is a member of the 1st Defendant/Respondent (Grounds 1 & 8).
2. Whether the learned trial Judge was right in relying on a document not before the court in arriving at its judgment that the Plaintiffs members and drivers are members of 1st Defendant and not exempted from payment of levies imposed by the Defendants/ Respondents (Grounds 4 & 9).
3. Whether the learned trial Judge had the jurisdiction to grant reliefs not claimed and against persons who were not parties to the suit.
(Grounds 5, 10 and 1).
4. Whether the trial court was right in holding that the Plaintiff/Appellant failed to prove allegation of extortion or collection of illegal levies and dues by the Defendants (Grounds 7 & 12).
The Respondents raised the following 6 issues contained on page 3 of their brief for determination:
1. Whether at the trial court the Plaintiff did discharge the onus of proof on it to show that the Defendants were extorting or collecting illegal levies and dues from it and its members (Ground 7.
2. Is there no Union in Exhibit ‘B’ referred to as Truckers Union (Ground 8).
3. Whether in the interest of justice, the trial Judge was not right in relying on the letter No. GO/LEP/S/8/Vol. VII/1393 signed by Ekaete E. Okon on behalf of the Cross River State Government (Ground 9).
4. In view of the facts and claims in the suit, is the order of the trial Judge permitting the Defendants to collect their union dues from its members, i.e. drivers hauling chippings, who are workers of the Plaintiff’s members not justified as an ancillary order not requiring the individual drivers being joined in the suit before it was made? (Ground 10).
5. Is the Order of the trial Judge permitting the Defendants to collect their union dues (N800.00) from the members of the 1st Defendant but employees of the Plaintiff’s members not right in the circumstances of the suit (Ground 11).
6. Whether by the facts and circumstances of the suit, it can be said that the judgment of the trial Judge is against the weight of evidence in the suit (Ground 12).
I consider issue 2 in the Appellant’s brief as the main issue in the appeal since the judgment of the learned trial Judge was based on the document which neither of the parties annexed to their affidavits in the suit. Since it is the kernel of the appeal, I will reproduce in extenso the judgment of the court. The learned trial Judge dealt with the letter at pages 83 – 84 of the record where he said:
“Letter No. Go/LEP/S/8/Vol. VIII/1393 dated 20/09/06, signed by Ekaete E. Okon, for the Special Assistant on Labour Matters, emphatically settled the dispute between the plaintiff and the 1st defendant, when it directed thus:
1) All drivers working with the Mines Industry are members of Mines Workers Union.
2) Drivers (Private) who occasionally transact business with chippings might not necessarily be members of the Union.
3) Even drivers who statutorily should be members of the Union may opt out since the extant Labour Amendment Act, has removed all elements of compulsion from any Union membership.
4) No Drivers, however, can escape or exact exemption from payment of such levies or haulages as may be imposed for loading chippings on the grounds of non-membership of the union.
The contents of the said letter settled the issues in dispute between the plaintiff and the 1st defendant, once and for all.”
Learned Senior Counsel for the Appellant argued that the letter was not tendered by either of the parties to the suit and that it is only the trial Judge who knew where and how this said letter crept into the court’s custody and formed a major evidence upon which the judgment of the court was based.
In his own reaction learned counsel for the Respondents submitted that parties knew about the content of the letter when they were before the cross River state police command and the letter is stated in the Undertaking signed by both parties on 21st September, 2006. He submitted that the plaintiff cannot rely on the Undertaking and fail to exhibit the said letters from cross River state Government which is the basis of the Undertaking. He continued the argument that failure and/or refusal of the plaintiff to exhibit the said letter from the Cross River State Government is contrary to Section 149 (d) of the Evidence Act. He contended that the plaintiff did not deny paragraph 25 of the counter Affidavit where the Defendants clearly stated that the “Gross River state Government in its letter dated 7th November, 2006 to the police” re-stated the Defendants right or authority to collect union levies and dues from its members. Learned counsel went further to state that the parties on both sides and their counsel are aware of the existence of the document which was tendered in a sister case: suit No. HK/22/2006 – NIGERIA UNION OF MINE WORKERS v. REGISTERED TRUSTEES OF TIPPING TRAILER OWNERS UNION & ANOR and submitted that the use of the letter from the Government of cross River state by the trial Judge accords with the interest of substantial justice as the document was before the trial High court, Akamkpa and so the trial Judge could utilize it. He therefore urged this court to reject the submission of learned Senior Counsel for the Appellant on the issue.
In paragraph 13 of the affidavit in support of the Originating Summons, it was deposed as follows:
“13. That the police on 21/9/06 advised the defendants to reduce the Union Dues or Levy and thereafter instructed the parties to sign an undertaking to maintain the peace which the parties to sign an without the Police adequately addressing the kernel of plaintiff’s compliant. The said undertaking to maintain the peace signed at Cross River State Police Headquarters, Calabar is hereto annexed and marked Exh. “C”.
Exhibit “C” is reproduced as follows:
“AN UNDERTAKING TO BE OF GOOD BEHAVIOUR AND TO MAINTAIN PEACE (BOND TO MAINTAIN PEACE)
The entire executives and members of both T. T. O. U and Nigerian Union of Mines workers in Calabar are hereby under the instruction of the Commissioner of Police, Cross River State bounded over to maintain peace and order in Cross River State in general and old Netim, Akamkpa in particular.
Consequent to the advice as contained in a letter from the special Assistant on Labour Matter, GO/LEP/S/8/Vol. VIII/1393 dated 20th September, 2006 is relevant.
T. T. O. U:
1. Chief Augustine Ngwudike (Chairman) Signed
2. Mr. Uche Nwosu(Secretary) Signed
3. Chief Mbachu B. O. (Vice Chairman) Signed
4. Sir B. C. Okeke Signed
MINES WORKERS UNION
1. Comrade Whyte C. Nwaehie(Chairman) Signed
2. Comrade Chinedu S. Ukwu (Secretary) Signed
3. Comrade Francis Chibueze Signed
4. Comrade Joseph Amasiatu Signed
OBSERVERS
1. Comrade Charles Ekpenyong Signed
(N.L.C. Chairman)
Cross River State.
2. Comrade A. O. Laliyan Signed”
I do not accept the argument by the learned senior counsel that since the letter was not tendered as Exhibit, only the trial Judge knew where and how the said letter crept into the court’s custody and formed a major evidence upon which the judgment of the court was based. The appellant commenced the action by Originating Summons and the evidence which the court relied on were the affidavits filed by the parties. The proposition of the law as expounded in S.E.S. NEWSPAPER v. ANWARA (1975) 9 – 11 SC 5 is that a document can properly be tendered by referring to it specifically in an affidavit and this is what the appellant did when Chief Augustine Ngwudike who signed Exhibit “D” deposed to the fact of the existence of the document in paragraph 13 of the affidavit in support. See: also NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (pt.135) 688 at 735 per Agbaje JSC.
The explanation made by learned counsel to the Respondents is more plausible where he said at paragraph 6.5 of his brief at page 18 that “the parties on both sides and their counsel are aware of the existence of the document which was tendered in a sister case: suit No. HK/22/2006 – NIGERIA UNIION OF MINE WORKERS v. REGISTERED TRUSTEES OF TIPPING TRAILER OWNERS UNION & ANOTHER. The following cases cited by learned Senior Counsel for the appellant on the issue are therefore not relevant: OPARAJI v. OHANU (1999) 9 NWLR (Pt.618) 290; E. S. EDOHO v THE STATE (2004) 5 NWLR (pt. 865) 17; QUEEN v WILCOX (1961) 2 SCNLR 296; HARUNA v MODIBBO (2004) 16 NWLR (pt.900) 487; ATIKPEKPE v JOE (1999) 6 NWLR (pt. 607) 438 and OWE v OSHINBANJO (1965) 1 All NLR 72.
what the learned trial Judge needed to have done was perhaps to state in the judgment that the letter mentioned in Exh. “C” has teen tendered in the sister case. The failure to specifically state this fact did not mean that the evidence was manufactured by the learned trial Judge or surreptitiously brought into the suit as to render the judgment null and void.
Issue No. 1 deals with Exh. “B” The complaint by learned senior counsel for the Appellant is that “the Truckers Union” said to be one of the unions that merged with the 1st Defendant’s Union is only a creature of the learned trial Judge and cannot be found anywhere in Exh. “B”. Despite the submission of learned counsel that they went through Exh. “B” with the aid of a magnifying lens, they were unable to come up with an alternative to the Truckers Union the learned Judge was said to have imported into the evidence. It was the Appellant as Plaintiff who in the first instance annexed a copy of the Exhibit to the affidavit in support of the originating summons. He is in a better position to state the fourth union in Exh. “B” since he had access to the original document from which the copy was produced. I therefore find no substance in the complaint on issue 1.
I intend dealing with the 4th issue in the Appellant’s brief before treating issue No. 3. The allegation is that of extortion or collection of illegal dues/levies- The learned trial Judge held that the plaintiff did not prove the allegation of extortion or collection of illegal levies and dues by the Defendants when he stated at page 79 of the records:
“The allegation of extortion or collection if illegal levies and dues, presupposes either that the law does not prescribed such dues, or that such dues are being collected in excess of the prescribed rate. Both ways, the Plaintiff had failed to convince the court with cogent evidence, that the Defendants are extorting monies from them illegally. The Plaintiffs argument and submission that the Defendants are illegally collecting dues and levies from them is not sustained and is hereby overruled.”
Learned Senior Counsel referred to paragraphs 8, 9, 1 0, 11, 12,13, 14 and 15 of the supporting affidavit to the Originating Summons to which was annexed Exh. “D” and paragraphs 12, 14 and 16 of the Further Affidavit fired on 25/5/07and paragraphs 14, 15 and 25 of the counter-Affidavit fired on 7/5/07 and submitted that the Appellant proved sufficiently that the Respondents were extorting money or collecting illegal dues/levies from members of the plaintiff. He also referred to Exhibits CAC 11, CAC 12 and CAC 13 which are receipts issued by the Respondents bearing the vehicle numbers of the Appellant’s members vehicles. He said the Respondents admitted collecting N600.00 from the appellants but referred to it as union dues collected from the drivers of the appellant members. He argued that what makes this “so called dues” illegal is that it is being collected from non members of the 1st Respondent and on a dairy basis or per trip of every vehicle and not authorized by law. He further contended that a careful perusal of Exh. “D” will reveal the following:-
(i) There is (was) a rift between the Appellant and Respondents on
(ii) That the Union Dues were reduced from N1000.00 to N800.00.
(iii) That is not indicated in Exh. “D” that the payment of Union dues will be made by drives of members of the Appellant.
(iv) That the demand for payment of N800.00 was made to the Appellant by the Respondents.
From the facts as disclosed in the affidavits learned Senior Counsel submitted that ab initio the Union dues were being paid by the appellants members and not drivers as alleged by the Respondent. He therefore submitted that Exh. “D’ is a clear and sufficient proof that the Respondents were collecting illegal dues/levies from the Appellant and urged this court to resolve the issue in the affirmative.
Issue 4 of the Appellant’s brief is covered by issues 1 and 6 of the Respondents, brief. Learned Counsel for the Respondents argued that the onus of proof as provided in Section 135(1) & (2) Evidence Act is on the Appellant who asserted that the Respondents were extorting or collecting illegal levies and dues from its members which prove is beyond reasonable doubt since crime is alleged. He then referred to paragraph 10,12,13,14,15,17,24 and 25 of the Counter-Affidavit contained on pages 21-22 of the Records and the Further and Better Counter-Affidavit and submitted that the combined effect of the said counter-Affidavits was an effective and unequivocal denial of the allegations of the Plaintiff in its suit. And since the plaintiff was asking for declaratory reliefs it can only succeed on the strength of its case and not on the weakness of the Defendant’s case. In paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of the supporting affidavit to the Originating Summons, it was deposed as follows:
“8. That Defendants had in the past few years subjected the Plaintiff and its members to various questionable dues, taxes and levies one of which was N600.00 Union dues or levy paid to the 1st Defendant by the Plaintiff and its members per tipper load of chippings on a daily basis which levy/Union dues the defendants claimed belonged to government.
9. That Plaintiff and its members, as law-abiding citizens had continued to pay the aforesaid Union dues, levied to the Defendants for ever six years without knowing that the dues/levies were not authorized by government.
10. That Defendant on or about 1st September, 2006 increased the levy or Union dues from N600.00 to N1000.00 per tipper load whereof the Plaintiff and its members protested and refused to pay and have questioned the propriety or legality of the levies and/or dues as the plaintiff and its members are not members of the 1st Defendant.
11. That despite protest, the Defendant continued the enforcement of the Union dues/levies on the members of the Plaintiff and their haulage vehicles/trucks belonging to members of the Plaintiff for refusal to pay the questionable levy or Union dues.
12. That to avoid breakdown of law and order, and as law-abiding citizens, the plaintiff on 7/9/06 petitioned the Commissioner of Police, Cross River State over extortion and unlawful imposition of Union dues/levies on plaintiff and its members by the defendant.
13. That the Police on 21/9/06 advised the Defendant to reduce the Union dues or levy and thereafter instructed the parties to sign an undertaking to maintain the peace, which the parties complied with, without the Police adequate addressing the kernel of plaintiff’s compliant. The said undertaking to maintain the peace signed at Cross River State Police Headquarters, Calabar is hereto annexed and marked Exh. “C”.
14. That on 22/9/06 the 1st Defendant wrote the plaintiff informing plaintiff that 1st defendant has reduced the Union dues N1000.00 to N800.00 per tipper toad of chippings. The said letter is hereto annexed and marked Exh. “D”.
15. That Defendants are now demanding the immediate payment of the N800.00 “Union Dues”, tax or levy from the plaintiff and through the proceeds of haulage trucks belonging to plaintiff and its members. Defendants are threatening to prevent the loading of the said haulage vehicle and trucks or to distrain same unless the said Union dues and/or levies are paid”. (See pages 8-9 of the Records.)
Paragraphs 12, 14 and 16 of the Further Affidavit fired on 25/5/07 contain the following depositions:
“12. That paragraph 2 of the Counter Affidavit is false and hereby vehemently denied. I state that defendants subjected the plaintiff and its members to questionable dues, taxes and levies up till November 2006 when this case was filed. The said dues, taxes or levies are extorted by defendants from the proceeds of the Tipper vehicle belonging to the members of the plaintiff. Copies of the receipts issued by Defendants through the drivers to members of the Plaintiff with Registration Numbers of members tipper vehicle written on the receipts are hereto annexed and marked Exhibit CAC 11, CAC 12 and CAC 13 respectively.
14. That paragraph 14 and 15 of the Counter Affidavit are false and denied. Defendants collect dues, levies, taxes and force Plaintiff and its members who are not members of the 1st Defendant to pay levies, Unions dues or moneys despite protests from plaintiff and its members. The monies, levies or dues extorted from the drivers by Defendants at source from the proceeds of trucks and tippers per tipper load of chippings or other products on a daily basis are moneys which belong to plaintiff and its members. The said drivers are employees, servants or agents of the plaintiff and its members to the knowledge of defendants.
16. That neither the plaintiff, members of the plaintiff not the Tipper, Tipping Trailer or truck drivers held any meeting with defendants or agreed to pay N600.00 as levy or any other sum at all to the defendants. The defendant are not authorized by law to demand or collect dues or levies from non-members of 1st Respondent which include Plaintiff and its members.”
The Respondents’ answer to these depositions are contained in paragraphs 10, 11, 12,13,15,17,24 and 25 of the Counter-Affidavit filed on 7/5/07 and they are reproduced as follows:
“10. That the 1st Defendant is a registered and recognized trade union in the country pursuant to the Trade Unions Act and operates in the quarries and has the tipping trailer, truck, tipper and heavy duty drivers involved in carrying chippings or stones from the quarries as its members.
11. That because of the oppressive and harsh conditions the plaintiff and the members have subjected the said tipping trailer, truck, tipper and heavy duty drivers, they are opposed to the Defendants who they see and call liberators. The 2nd and 3rd Defendants are Chairman and Secretary of the 1st Defendant’s branch union at Old Netim, Akamkpa.
12. That contrary to Paragraph 5 of the supporting affidavit which alleged that the Defendants “subjected the plaintiff and its members to various questionable dues, taxes and levies one of which was N600.00 union dues or levies”, the Defendants state that there was no imposition of union dues and/or levies (whether questionable or not) on the plaintiff and its members and that the Defendants never asked for or collected taxes from the plaintiff and it members.
13. That Defendants are law abiding citizens and will not engage themselves in such illegal acts like collecting taxes and do state here that this is one of those false and reckless allegations that the plaintiff and its members make to blackmail the Defendants and in their desperate bid to cover the truth of the matter.
15. That contrary to paragraph 7 of the supporting affidavit the dues and levies being paid by the drivers were as agreed by all in a general meeting, which all indicated and signed for the amount to be paid and at the end the majority voted for the said Six Hundred naira (N600.00) being collected by the Defendants. The document is exhibited hereto and marked “A”.
17. That contrary to Paragraphs 5, 6, 7 and 8 of the supporting affidavit the defendants state unequivocally that they never asked from or forced the plaintiff or its members to pay any form of dues or levies and that both bodies have never had any financial relationship whether legal or illegal, authorized or otherwise as the plaintiff collects tolls from its members, which they are entitled to.
24. That contrary to Paragraphs 14, 15, 16, 17, 18 and 19 of the supporting affidavit the defendants state that they are not in any way or manner forcing the plaintiff or its members to join the 1st defendant and also that know that the plaintiff and its members are not members of the 1st defendant and do respect this position of thing.
25. That contrary to paragraph 14 of the supporting affidavit the Defendants state that they have only insisted that the 1st Defendant has the right as a trade union pursuant to the Trade Union Act to collect the agreed levies and union dues from its members, which was restated by the Cross River State Government in its letter dated 7th November 2006 to Police.”
Learned Counsel for the Respondents submitted and I entirely agree with him that by at the averments in the various affidavits, the suit was a hostile one and oral evidence should have been adduced even if the trial court dispensed with pleadings. The depositions in paragraphs 8, 9, 10, 11, 12, 15, 16, 17, 20, 22, 23 and 24 of the Affidavit in support are hearsay evidence since the deponent did not give particulars of the persons involved and/or sources of the information therein, like the names of the victims, the dates of the incidents as required by sections 86, 88 and 89 of the Evidence Act.
Since extortion and illegal collection of levies are alleged which are criminal in nature, the allegations must be proved beyond reasonable doubt. Exhibits CAC 11, CAC 12 and CAC 13 bear no nexus with any of the Appellants, members. In fact the receipts bear no name of a member of the Appellant. There is nothing on their face to connect them to any member of the Appellant. Even the vehicle numbers, there is nothing to show that they belong to any member of the Appellant’ Exh’ “D” is not an admission by the Respondents that they were collecting illegal dues/levies from the Appellant. Exh. “D” was based upon a peace settlement brokered by the police and meant to sustain peaceful co-existence at the quarry between the plaintiff and the Defendants. To properly interprete Exh. “D”, evidence must be called as to the circumstances that brought it into existence. In any event, it was not one of the documents that the plaintiff sought to be interpreted in the Originating Summons. Consequently, I agree with the learned Judge’s finding that the allegation of extortion or collection of illegal levies and dues by the Defendants was not proved by the plaintiff.
” Issues 4 and 5 in the Respondents Brief is the same as issue No. 3 of the Appellant’s Brief. The learned trial Judge held that the counter-claim succeeded and ordered that the defendants are at liberty in law and are hereby authorized to collect the N800.00 Union dues as already proposed by them to at drivers hauling chippings with effect from the date any such driver stopped paying union dues to the 1st defendant to date. The appellant has complained and rightly too that the order was made against the drivers who were not parties to the suit and were not heard before the order was made. In the counter-claim the defendants had sought for a determination of the two questions earlier reproduced in the judgment. The defendants were seeking for a declaration and the learned trial Judge exceeded his bounds by granting to the defendants a relief they did not ask for.
The order authorizing the defendants to collect N800.00 Union dues from at drivers hauling chippings from the date of judgment is set aside. In the main the appeal fails and it is hereby dismissed. The parties are to bear their own costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading an advance copy of, the leading judgment of my learned brother, Kumai Bayang Akaahs, JCA. I agree with the lucid reasoning, succinct review of counsel’s submissions on the issues adopted for resolution and conclusion reached thereon, with the effect that this appeal should fail. I have nothing to add. I adopt the said leading judgment as mine and also abide by the consequential orders made therein regarding costs and otherwise.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, K.B. Akaahs, JCA gave me the privilege of reading the draft of his judgment in this appeal. I agree that the appeal is lacking in merit and should be dismissed. I too dismiss it without an award of cost.
>
Appearances
Chief Soto Akuma, SAN with Chidi AgorFor Appellant
AND
Uche Wisdom DurekeFor Respondent
