STATE SECURITY SERVICE & ANOR v. NIGERIA UNION OF TEACHERS
(2018)LCN/11965(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/A/54/15
RATIO
COURT AND PROCEDURE: WHETHER THE COURT CAN INTERFERE WITH THE JUDGMENT OF THE TRIAL COURT
“We were urged to interfere with the judgment of the lower Court as it is not perverse; reliance was placed on the case of APGA VS. INEC (2012) LPELR 199952 (CA), ATOLAGBE VS. SHORUN (1985) NWLR (PT. 2) 360; OJO VS. GOVERNOR OF OYO STATE (1959) 1 SC (PT. 1) amongst others. It was the submission of the learned counsel that the provisions of the Constitution be liberally and holistically construed and not piecemeal. We were urged to construe Sections 40 and 318 of the 1999 Constitution together to determine the ownership and public status of the members of the Respondent rather than Section 45 (1). On the alleged error by the trial Court, it was submitted that if the order to reinstate some teachers was an error, it was just and right considering the circumstances of the suit and further that it is not every error in the judgment of a Court that will lead to the said decision being set aside. See, ODUKWE VS. OGUNBIYI (1998) 8 NWLR (PT. 561) 339 at 350, ANYANWU VS. MBARA (1992) 1 NACRP 85 at 97 PARAS. D – E, OLADEJO ADEWUYI VS. FADEKE AKANNI & 10 ORS (1993) 9 NWLR (PT. 316) 182 at 205. It was argued that the order to reinstate the teachers in the motion of 6th July, 2010 in the judgment was a necessary harmless inclusion which did not water down the correctness of the judgment of the trial Court. See, I.T.P.P. LTD VS. UNION BANK NIG. PLC (2006) 5 SC (PT. 11) 52 at 62 and OLUBODE VS. SALAMI (1985) 2 NWLR (PT. 7) 232 amongst others.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. STATE SECURITY SERVICE
2. DIRECTOR GENERAL OF STATE Appellant(s)
AND
NIGERIA UNION OF TEACHERS Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
The appeal is against the decision of the National Industrial Court (NIC) delivered on the 17th day of September, 2014 presided over by B.A. Adejumo, J. President of NIC. The Respondent herein as claimant at the lower Court instituted the action against the Appellants vide a writ of summons in which the following reliefs were sought.
1. A DECLARATION that members of the plaintiff in the employment of the 1st Defendant at Community Staff Schools, Asokoro are public servants within the intendment of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and by virtue of their contact of employment.
2. A DECLARATION that members of the plaintiff in the said employment of the 1st Defendant are entitled to enjoy the Conditions of Service applicable to all persons employed by the Federal Civil Service Commission.
3. A DECLARATION that the members of the plaintiff in the said employment of the 1st Defendant at Community Staff Schools are entitled to associate freely as members of the Nigeria Union of Teachers without any threat, harassment and intimidation by the Defendants and their officers, agents, subordinates and privies.
4. A DECLARATION that the suspension of the promotion exercise in the Community Staff Schools by the Defendants on the ground that some members of the Plaintiff in the said school have unionized staff of the Community Staff Schools is an atrocious violation of Section 40 of the Constitution of the Federal Republic of Nigeria and is therefore unlawful, unconstitutional, oppressive, and unfair.
5. A DECLARATION that the act of the Executive Secretary of Community Staff Schools ordering the members of the Plaintiff in the employment of the 1st Defendant to remove Tee-Shirts bearing the inscription of the plaintiff during the celebration of the World Teachers? Day is a violent violation of their fundamental right to associate freely guaranteed by Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 and is therefore unlawful, unconstitutional, and grossly unfair.
6. AN ORDER of perpetual Injunction restraining the Defendants whether by themselves, officers, subordinates, agents, privies, representatives, associates or anybody acting on their behalf howsoever from in any way curtailing or abridging the free exercise of the right of members of the plaintiff in the employment of the 1st Defendant to associate freely and from issuing any threat to discipline them for the exercise of their trade union rights.
7. A DECLARATION that members of the plaintiff in the employment of the 1st Defendant at community Staff Schools AN ORDER of perpetual Injunction restraining the Defendants whether by themselves, officers, subordinate, agents, privies, representatives, associates or anybody acting on their behalf howsoever from dismissing, disengaging or terminating the employment of or disciplining members of the plaintiff in the 1st Defendant?s employment or locking out the members of the plaintiff in its employment at all or on the basis of their activities in the plaintiff and without complying with the existing Public Service Rules or Civil Service Rules.
The trial Court granted the declaratory and injunctive reliefs which the defendants were unhappy with, thus this appeal.
The background facts on the part of the Appellants are that the 1st Appellant is a creation of statute and the primary domestic intelligence agency of Nigeria, responsible for the protection and preservation of all non-military classified matters concerning the internal security of Nigeria. The officers of the 1st Appellant are authorized to bear arms. The 1st Appellant was said to have established the Community Staff School (CSS) Asokoro for quality education and the safety of the wards of its officers. The 1st Appellant employed personnel as teachers in the staff school on the conditions of Service/Promotion Policy for Community Staff Schools, Asokoro. It was made out that the teachers were made to take the same oath of allegiance as its officers and were to be bound by the code and ethics of operation of the 1st Appellant along the line of Exhibit CW5, pages 357 ? 363 of the printed records of appeal. Also, Section 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 11 of the Trade Unions Act, Cap T14, Laws of the Federation of Nigeria, the oath of allegiance of the 1st Appellant and the conditions of service/Promotion Policy for Community Staff Schools, Asokoro.
The Respondent is a trade Union acting on behalf of the teachers employed by the Community Staff School, Asokoro, a school owned by the 1st Appellant and administered by the 2nd Appellant. It was contended that the Respondent who was not a party to the agreement between the Appellants and her personnel (teachers in the Staff School) introduced unionism into the Staff School of the Appellants. It was made out that teachers under the employment of the Appellants, like its officers, cannot form or participate in a Trade Union while under the employment of the 1st Appellant and that the Board of the Community Staff School reserved the right to discipline its staff in the case of disobedience. The teachers who joined the Respondent?s union were dismissed from the 1st Appellant’s employment. It was alleged that by the action at the lower Court, the Respondent sought to have the teachers join the union which the trial Court granted hence, this appeal.
The appellant distilled two issues for determination of the appeal thus:
1. Whether, having found that the disengaged teachers are employees of the 1st Appellant, the lower Court was right to hold that they can simultaneously be members of the Respondent, having recourse to Section 11(b) of the Trade Unions Act and Section 45 of the Constitution of the Federal Republic of Nigeria, 1999. Grounds 1,2,3 and 4 of the Notice of Appeal.
2. Whether the trial Court was right to find that the Respondent had locus standi and a cause of action to enable the lower Court exercise jurisdiction on the matter. Grounds 5 and 6.?
The Respondent on its part also distilled two (2) issues for the determination of the appeal thus:
1. Whether the Appellant can put up a different case on appeal from the case they put forward at the lower Court with respect to the status of the teachers employed at the CSS and as against the evidence adduced by the parties at the lower Court.
2. Whether the lower Court was right in finding for the Respondent base upon it (sic) establishing Act by granting all the reliefs sought by the Respondent in the suit and making appropriate order to avoid multiplicity of suit/action considering the circumstances of the case.?
In arguing the appeal, the learned counsel to the appellants Ayotunde Ogunleye relied on his brief of argument filed on 11/10/16 but, deemed filed on 22/2/17, and his reply brief filed on 23/5/17, in urging us to allow the appeal. In arguing his first issue, it was submitted that the lower Court erred when it found that the teachers under the employment of the 1st Appellant could belong to the Trade Union of the Respondent.
The Appellants’ case was summarized as the issue whether persons employed by the 1st Appellant can enjoy the right granted by Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in view of the qualified nature of the said right by virtue of the provisions of Section 45 of the same Constitution.
It was submitted that the persons under the employment of the 1st Appellant willingly executed Exhibit CW5, (page 23 of the records) aware of the 1st Appellant’s position on the issue of joining a trade union. Further, that Section 11 of the Trade Union Act, Cap T14 LFN, 2004 prohibits those under the employment of the 1st appellant from being members. It was argued that the 1st Appellant and its staff fall within the ambit of Section 11 and Section 45 of the Constitution not to be part of any union. It was argued that the Court cannot impose a contract for the parties or create a non-existent right for a party in the interpretation of a contractual document, see, OMEGA BANK NIG. PLC VS. O.B.C. LTD (2005) 8 NWLR (PT. 928) 547 at 576. Also, that the right of association has limitations as decided in N.U.E.E. VS. B.P.E. (2010) 7 NWLR (PT. 1194) PAGE 536 at 574 – 575 PARAS. F – C and UKPABIO & ANOR VS. N.F. V.C.B. (2008) 9 NWLR (PT. 1092) PAGE 219 at 248 PARA. E.
It was the contention of the learned counsel that all the staff of the Community Staff School as well as the 2nd Appellant took the oath of allegiance evidenced by CW5 and can therefore not lawfully claim not to be bound by the rules and regulations applicable to persons in the employment of the 1st Appellant, reliance was placed on MBANEFO VS. MOLOKWU (2014) 6 NWLR (PT. 1403) PAGE 377 at 409, PARAS. B ? D, JADESIMI VS. OKOTIE-EBOH and RE LESSEY (1989) 4 NWLR (PT. 113) PAGE 113 at PAGE 125 PARAS. B – C.
In alternative argument, it was submitted that assuming without conceding that the provisions of Section 45 of the 1999 Constitution and Section 11 of the Trade Unions Act are inapplicable to the teachers said to be represented by the Respondent, the teachers, having voluntarily taken the oath of allegiance in Exhibit CW5 and agreed to the conditions of Service/Promotion Policy for Community Staff Schools, Asokoro are bound by the said agreement and conditions and are estopped from opting out of the terms therein. See, UWAH VS. AKPABIO (2014) 7 NWLR (PT. 1407) PAGE 472 at 489 PARA. E.
It was submitted that the finding by the lower Court that the teachers in the employment of the 1st Appellant are not personnel of the 1st Appellant bound by its oath of Allegiance is contrary to the agreement between the 1st Appellant and the teachers it employed, occasioned a grave miscarriage of justice to the Appellants. See, also A.G. FERRERO & CO. VS. H.C. (NIG) LTD (2011) 13 NWLR (PT. 1265) PAGE 592 at 606. While relying on the case of EMIRATES AIRLINE VS. NGONADI (2013) LPELR 22053 (CA) it was contended that the learned trial judge granted orders in excess of claims sought by the Respondent. It was submitted that the consequential orders of the trial Court are unenforceable for lack of clarity, to the effect that the Appellants should re-instate and pay entitlements to the disengaged teachers, was argued to be unenforceable as there was no clarity as to who the teachers are. We were urged to jettison the orders.
The appellants’ second issue is whether the trial Court was right to find that the Respondent had locus standi and a cause of action which conferred jurisdiction on the trial Court? Locus standi was defined basically as the standing which a party has to enable him invoke the judicial powers of the Court, the resultant effect of the absence, is that he cannot invoke the said judicial powers, he would then not have the jurisdiction to adjudicate over the dispute presented to it. Reliance was placed on the case of AKEBONO INDUSTRIAL COMPANY NIGEIRA LTD and ORS VS. OBINYA PLASTICS LTD and ORS (2013) LPELR 21903 (CA).
It was submitted that some of the members of staff of the 1st Appellant ought to have been made parties to the action. It was argued that until the teachers are declared members of the Respondent they cannot be rightly represented by the Respondent. See, also BAKARE VS. AJOSE – ADEOGUN (2014) 6 NWLR (PT. 1403) 320 at 350 – 351, PARAS. G – D, YAR’ADUA VS. YANDOMA (2015) 4 NWLR (PT. 1448) 123 at 173, PARAS E – H AND K. LINE INC. VS. K.R. INT. LTD (1993) 5 NWLR (PT. 292) 159 at 176, PARA. G.
It was the contention of the learned counsel that the trial Court erred when it held that the Respondent had the locus standi to institute the action in that the Respondent has not shown sufficient interest in the subject matter. It was argued that there is nothing to show that the Respondent was mandated by the aggrieved employees of the Community School to represent them. It was argued that the aggrieved persons are the proper persons to have taken the action. It was argued that there was no cause of action against the Respondent for it to have filed the action, reliance was placed on the cases of IBRAHIM VS. OSIN (1987) 4 NWLR (PT. 67) 965 and ADIMORA VS. AJUFO (1988) NSCC (PT. 1) 1005. It was concluded on this issue that the Respondent lacked the locus to maintain this action.
The learned counsel to the Respondent, Anthony Itedjere Esq. in response adopted and relied on his brief of argument filed on 22/2/17 in urging us to dismiss the appeal. The learned counsel argued his issues one and two together. It was contended that the case of the Appellant’s put up on appeal is different from their case as pleaded and argued at the lower Court. It was submitted that the case of the Appellants at the lower Court was that the CCS is a private school and that the Appellants have no business with its management while on appeal, it has been argued that the teachers are its personnel who cannot belong to any trade union as they are an arm bearing agency of the government. It was argued that the appellant’s ought to be consistent with their case. See,NNPC VS. ZARIA & ANOR (2014) LPELR 22362 amongst others.
On the respective letters of appointment of the teachers, it was alleged that the Appellants agent (Management of the CSS) used different conditions of service unknown to its members and that three of such conditions of service were tendered through the Appellants’ witness at the trial as against the Public Service Rules on the letters of appointment, see, Exhibit CW4, page 21, Vol. 1 on the printed records. It was argued that there was no finding by the lower Court that the teachers for whom the Respondent instituted the action were employed in the same manner that other employees of the 1st Appellant were employed contrary to the submissions of the learned counsel to the Appellants. It was argued that a counsel’s brief of argument cannot replace evidence. See, A.N.P.P. VS. USMAN (2008) 12 NWLR (PT. 1100) 1, BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) at 286, ODUWOLE VS. WEST (2010) 10 NWLR (PT. 1203) 598, NEKA B.B.B. MANUFACTURING CO. LTD VS. A.C.B. (2004) 1 SC NJ 193 at 205.
We were urged to interfere with the judgment of the lower Court as it is not perverse; reliance was placed on the case of APGA VS. INEC (2012) LPELR 199952 (CA), ATOLAGBE VS. SHORUN (1985) NWLR (PT. 2) 360; OJO VS. GOVERNOR OF OYO STATE (1959) 1 SC (PT. 1) amongst others. It was the submission of the learned counsel that the provisions of the Constitution be liberally and holistically construed and not piecemeal. We were urged to construe Sections 40 and 318 of the 1999 Constitution together to determine the ownership and public status of the members of the Respondent rather than Section 45 (1).
On the alleged error by the trial Court, it was submitted that if the order to reinstate some teachers was an error, it was just and right considering the circumstances of the suit and further that it is not every error in the judgment of a Court that will lead to the said decision being set aside. See, ODUKWE VS. OGUNBIYI (1998) 8 NWLR (PT. 561) 339 at 350, ANYANWU VS. MBARA (1992) 1 NACRP 85 at 97 PARAS. D – E, OLADEJO ADEWUYI VS. FADEKE AKANNI & 10 ORS (1993) 9 NWLR (PT. 316) 182 at 205. It was argued that the order to reinstate the teachers in the motion of 6th July, 2010 in the judgment was a necessary harmless inclusion which did not water down the correctness of the judgment of the trial Court. See, I.T.P.P. LTD VS. UNION BANK NIG. PLC (2006) 5 SC (PT. 11) 52 at 62 and OLUBODE VS. SALAMI (1985) 2 NWLR (PT. 7) 232 amongst others.
Further, on the issue of the Respondent’s locus to sue, it was submitted that by the Trade Union Act, the Respondent is a legal personality that can sue and be sued for actions and/or interest of its members. Reliance was placed on the third schedule, parts A and B of the Trade Union Act. It was submitted that a trade union can institute an action for the benefit of its members; reference was once again made to the provisions of Section 40 of the 1999 Constitution, as amended. See, ONUORAH VS. K.R.P.C. (2005) 6 NWLR (PT. 921) 393.
It was refuted that the case at the lower Court was never to determine if teachers employed by the CSS could be members of the Respondent. It was concluded that trade unions like the Respondent are formed to protect its members.
In their reply brief, it was submitted that Exhibit CW2 was not a threat to the teachers of CSS but, a reminder that the Appellants would not allow their premises to be used for union activities. The Appellants refuted making out a different case from their case at the lower Court. The points argued in the main brief of argument were reargued; there would be no need to review same once again.
In resolving the appellant’s first issue, it is necessary to look into the status of the teachers of the Community Staff School (CSS), Asokoro set up by the 1st Appellant. Exhibit CW4 – CW4(a) (tendered and admitted in evidence through one Olatunde Fasibi who was a teacher at CSS, Asokoro) the letter of probationary appointment of the witness dated 17th July, 2001 which was written on the letter headed paper of the Board of Trustees of the Community Staff School. There is nothing to show that the appointment of the witness is as a personnel of the 1st appellant (State Security Service (SSS)), page 21 – 22 of volume 1 of the printed records of appeal.
The witness testified that the above exhibit is the only letter of appointment issued to him and he swore to the oath of allegiance/secrecy in the form of Exhibit CW5 produced by the 1st Appellant, his evidence is at pages 20 – 23 of volume 2 of the printed records. Also, Exhibit CW7 – CW7(E), on the letter head of the Community Staff School, Asokoro, dated 23rd February, 2009 addressed to the 2nd appellant is a letter of Appeal headed ‘An Appeal for Regularization of our Appointments into the main stream of the Federal Civil Service’ which was written by the Staff of CSS, Asokoro with their 118 (One Hundred and Eighteen) names listed, with their signatures and date against each name, page 31 – 38 of the printed records, volume 1. If the CSS, Asokoro Staff were personnel of the 1st Appellant as argued by the learned counsel to the appellant, the above Exhibit would not have been made.
Further, the sole witness of the appellants, the DW1 (Ezekiel Olusegun Daramola), a Board member of the school testified that the agitation led to the institution of the action leading to this appeal. The evidence of DW1 is at page 27 of volume 2 of the printed records as follows:
”The agitation is for regularization as a member of the first Defendant that is the Department of State Services… What I know before leaving here as the agitation of the claimants was that they wanted regularization as member of the Department of State Services.”
The same witness in his statement on oath, at page 354 of volume one, of the printed records had stated thus:
3. That I know that though the Community Staff Schools, Asokoro is owned by the State Security Service, it is a private enterprise and is managed by a Board of Trustees. The school has a separate identity from the State Security Service, SSS.
4. I know as a fact that the staff of the schools are employed by the Board of Trustees of the schools, and are not members of the staff of the 1st DEFENDANT’S and that the 1st DEFENDANT does not have in its employment people who are of the PLAINTIFF. The teachers in the Community Staff Schools, Asokoro, Abuja were employed by the Board of Trustees of the schools and not by the 1st and 2nd DEFENDANT. Their letters of appointment were signed by the Board of Trustees of the Community Staff Schools, Asokoro and the terms of employment of each staff are contained in the letters of appointment and confirmation of appointment issue to deserving staff after the probationary period.
Further, in paragraphs 5 and 6 of the same statement, the witness made stated clearly that the teachers in the Community Staff School are not staff of the State Security Service, the 1st Appellant. There is no evidence that the teachers in the CSS are personnel of the 1st appellant. The agitation that led to the case that gave rise to the appeal, as stated above, is that the teachers who are not personnel of the 1st appellant wanted to be treated as other public servants based on their letters of appointment and in line with Section 318 of the 1999 Constitution (as amended) of the Federal Republic of Nigeria. From the statement and oral evidence of the appellants’ sole witness at the lower Court, the appellants admitted the fact that the teachers at the CSS even though established and managed by the Board of Trustees, put together by the appellants, are not personnel of the 1st appellant, whose method of appointment and conditions of service are different.
The staff of the CSS also, do not carry arms. The law is that admitted facts do not need further proof. See, Section, 123 of the Evidence Act, 2011 and in ALAHASSAN & ANOR VS. ISHAKU & ORS (2016) LPELR 40083 (SC) P. 73, PARAS. B – C, his lordship, Sanusi, JSC on there being no need to prove admitted facts held thus:
”It is trite and well settled law, that where a party admits a fact in issue such fact in issue does not require any proof again. The Courts do not need proof of fact already admitted and further dispute if such facts should not be entertained since admission is the strongest and highest of the fact in issue.”
See, also OUR LINE LIMITED VS. S.C.C. NIGERIA LIMITED & ORS (2009) LPELR 2833 SC; (2009) 17 NWLR (PT. 1170) P. 382; (2009) 6 – 7 SC P. 145, EHINLANWO VS. OKE(2008) LPELR 1054 (SC) and SUNDAY OFFOR & ANOR VS, THE STATE (2012) 12 SC 11 P. 21; (2012) 18 NWLR (PT. 1333) P. 421.
The learned President of the National Industrial Court (NIC) (the trial Court) found that the disengaged teachers are employees of the 1st Appellant and also members of the 1st Respondent by virtue of the terms of their contract of employment. I would hereunder reproduce portions of the finding of the trial Court, at pages 441 – 442 of volume one of the printed records:
”In determining the status of an employee, recourse must be had to the contract of employment between the employee and the employer. In the instant case, Exhibit CW4 dated 17th July, 2001 states in part as follows: ‘That your appointment will be subject, in all respects, to the conditions as provided for in the Public Service of the Federation.
The clear intention of the parties going by the Clause reproduced above is that these employees are part and parcel of the Public Service of the Federation. At least, that is the intendment of the contract of employment between the parties. The Supreme Court has decided that it is not the duty of the Court to make contracts for the parties. It is principally within the province of the Court to give effect to what the parties have agreed to in the contract. See the case of BAKER MARINE NIG. LTD VS. CHEVRON NIG. LTD (2006) LPELR 715 (SC).”
I am therefore of the candid view that the 1st Defendant clearly intended the staff of the CSS, Abuja to be part of the Public Service of the Federation by reason of their contract of employment. The 1st Defendant having employed the teachers of the CSS, Abuja through the 2nd Defendant acting as the proprietor will not be allowed to breach the contract of employment by asserting otherwise. In furtherance of its intention to employ the teachers of the CSS, Abuja as members of the Public Service of the Federation, they were required to swear to an Oath of Allegiance (as per Exhibit CW5). By this oath, the members of staff swore to owe their allegiance to the Federal Republic of Nigeria and the 1st Defendant. It is common knowledge that only public officials are required to swear to such Oath of allegiance in Nigeria.
Still on this point, Section 318 of the Constitution of the Federal Republic of Nigeria 1999 as amended relied upon by learned counsel for the claimant is apposite. I am therefore in agreement with learned counsel that the effect of the section is that staff of educational institution established or financed principally by the Government of the Federation are integral part of the Public Service of the Federation.
On the basis of the evidence and legal authorities that I have expatiated above, I am of the candid view that the members of the claimant in the employment of the 1st Defendant at the CSS, Abuja are public servants by virtue of their contracts of employment and by virtue of Section 318 CFRN 1999 as amended. I reject the strange proposition of learned counsel that the affected staff of the CSS, Abuja cannot be adjudged as public servants because they were not employed by the Federal Civil Service Commission. I hold the view that their non-recruitment through the Federal Civil Service Commission, but by an educational institution established and funded by the Government of the Federation through one of its agency does not negative their status as public servants. In the case of OKOMU OIL PALM LTD. VS. ISERHIENRHIEN (2001) 6 NWLR (PT. 710) 660, the Court decided that appointment into public offices in the Federal Civil Service may be done by an agreement between the officer and the Federal Government or its appointment agents.
Having held that members of the claimants in the employment of the 1st Defendant at the CSS, Abuja are public servants, it follows that they are entitled to enjoy the conditions of service applicable in the Public Service of the Federation. I should add that the conditions of service applicable in the public service are as contained in the Public Service Rules or any other applicable Regulations.
The above view of the trial Court is unassailable; I am at one with same and cannot fault it. As rightly held by the trial Court, it is from the letters of appointment that the terms and conditions of service can be determined. Exhibit CW5 is only an oath of allegiance/secrecy to the Appellants. From Exhibit CW4 the public service rules is the applicable conditions of service agreed upon by the parties. I hold that the teachers at the CSS are members of the Respondent who do not bear arms but, teach and are not personnel of the 1st appellant. Further, this Court would only interfere with the findings of the trial Court if the findings are perverse or the Court did not utilize the opportunity of seeing and hearing the witnesses or the judge shut his eyes to the obvious. Such situation did not arise here. The trial Court comprehensively analyzed the evidence before it in arriving at its decision that the disengaged teachers even though employees of the CSS set up by the 1st Appellant can be and are members of the Respondent. I resolve issue one against the Appellants.
On the Appellant’s second issue, no doubt the Respondent is a legal personality that can sue and be sued for actions and/or interest of its members. The appellants have not challenged the Respondent’s status as a Trade Union under the Trade Unions Act. The Respondent’s witness (Olatunde Fasisi) as I stated above, was a teacher at the CSS tendered Exhibit CW3 – CW3c a letter dated 31st March, 2009, headed: ‘Registration as members of Nigeria Union of Teachers (NUT)’ at pages 15 – 20, volume one of the printed records. It is the application of the teachers at the CSS to be members of the Respondent. The appellants have not made out that they were not aware of Exhibit CW3 series, with the names of the teachers of CSS attached and signed. The letter was addressed to the Respondent. The Appellants therefore, were aware of the establishment of the Respondent’s branch at the CSS. At paragraph 4 of the Respondent’s (as claimant) statement of claim Exhibit CW3 was pleaded. In Paragraph 9 the reaction/hostility of the appellants to the teachers who became part of the Respondent was also pleaded. At pages 436 – 437 of the printed records, the learned President of the NIC held on evaluation of CW3 along with the pleadings thus:
”It is remarkable that the 1st & 2nd Defendants did not at any time dispute the validity of CW3 by which the teachers of the CSS, Abuja applied to join and were consequently recognized as/members of the claimant. There is evidence that the admission of the said teachers as members of the claimant was duly communicated to the 1st Defendant through the 2nd Defendant. The position of the law is settled and needs no citation that once the evidence adduced by a party is credible and unchallenged by the other party who has the opportunity to do so, it is open to the Court to accept and act on such evidence. I therefore find that the teachers actually applied to join the claimant. I also hold that the teachers were duly admitted as members of the claimant.”
I am of the view that the learned President of the NIC properly evaluated the evidence before it. No doubt the natural conclusion is that the teachers of the CSS, Abuja under the employment of the 1st Defendant are members of the Respondent. Having held that the teachers of the CSS are members of the Respondent, I hold that the Respondent had the locus standi to have instituted the action at the lower Court to protect the interest of its members. This is in tandem with the finding of the trial Court, at page 439 of the printed records where the Court held as follows:
”The facts of this case clearly reveal that the interests of the members of the claimant in the employment of the 1st Defendant are at stake. There are issues relating to non-regularization of their appointments. There is also the issue of interference with the constitutional right of these members to join and engage in union activities. Viewed from this perspective, I am in total agreement with learned counsel for the claimant that there is no legal basis to deprive the claimant the capacity to sue in the promotion of the interest of its members. Certainly, there is a cause of action in respect of which the claimant could institute this action as a trade union on behalf of its affected members.”
The Appellants have not disputed the fact that Trade Unions can institute an action for the benefit of its members but, their grouse is that the teachers at the CSS are not permitted to be members of the Respondent as personnel of the 1st appellant. The members of the Respondent under the employment were listed in the attachment to Exhibit CW3. By the provisions of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) every person is entitled to form or belong to a trade union amongst several other associations, the teachers of the CSS inclusive. I resolve issue two against the appellants.
In the final analysis, I hold that the appeal is without merit, I dismiss it in its entirety and affirm the judgment of the trial Court.
Parties to bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother, Chidi Uwa, JCA. I agree with the reasoning and conclusion. I also dismiss the appeal. I abide with the order as to costs.
HAMMA AKAWU BARKA, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA, and totally agree with the reasoning and conclusions in the Judgment that the appeal lacks merit. I also join my Lord in dismissing the appeal, thereby abiding on order as to costs made in the lead judgment.
Appearances:
Ayotunde Ogunleye with him,
Tejumola Abiola Oloke, Esq.For Appellant(s)
Anthony Itedjere, Esq.For Respondent(s)
