IN THE NATIOANL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 8TH FEBRUARY, 2018
SUIT NO: NICN/EN/32/2017
BETWEEN:
AGRICULTURAL AND ALLIED EMPLOYEES UNION
OF NIGERIA ====================================== CLAIMANT
AND
- ATTORNEY GENERAL OF ENUGU STATE ===========DEFENDANT
REPRESENTATION:
Anthony Itedjere Esq. for the Claimant.
- U. Madu Esq., (Chief Legal Officer Ministry of Justice Enugu State) for the Defendant
JUDGMENT
The claimant in this case by an originating summons dated and filed on the 5th June, 2017 sought the determination of the following questions by this court:
- Whether or not without any order of court to that effect the Enugu State Government can on its own volition pay check off dues of members of Agricultural and Allied Employees Union of Nigeria (AAEUN) with the Enugu State Government into a suspense account as against the provision of section 17 of Trade Unions Act; that all check of dues of registered and recognized Trade Union by Registrar of Trade Unions be paid to its National Headquarters.
- Whether an employer of labour (ENUGU) State Government can of his own volition without a specific order of court deduct check of dues of members of the claimant in the state government without remitting same to t he claimant.
- Whether or not a change of name of a Trade Union affects the legal personality, liability and obligation of a Trade Union or it produces a new Trade Union which can demand for check of dues from members of the claimant.
Upon the determination of the above questions the claimant sought the following relieves.
(1) A declaration that the deduction of check off dues from member of the claimant in Enugu State without remitting same to the claimant is illegal, unlawful null and void, therefore unconstitutional and of no effect whatsoever.
(2) A declaration that only a validly registered Trade Union by the Registrar of Trade Union that can unionize members and collect check off dues from such members.
(3) A declaration that the decision to change of name of a trade union does not nullify the process for change of name as provided by S. 27 of Trade Union Act nor does it obviate such trade union of any of its legal duties responsibilities and liabilities.
(4) A declaration that all check off dues deducted by Enugu State Government from members of the claimant in the state government establishment with all accruing interest should be remitted to the claimant forthwith.
(5) An order restraining the defendant from recognizing any other trade union or persons as a trade union with powers to unionize agricultural workers in Enugu State.
(6) An order of perpetual injunction restraining the defendant from withholding claimant’s members deducted check off dues in Enugu State Government establishment.
In support of the originating summon is 21 paragraph affidavit deposed to by Rev. Peter Agoziem, the state secretary of the claimant. Annexed to the affidavit are 5 exhibits to wit:
Exhibit A1 is the Certificate of Amalgamation of the claimant with Agricultural and Allied Senior Staff Association issued on the 10th April, 2008 by the Registrar of Trade Union.
Exhibit A2 is the Certificate of Registration of Agricultural and Allied employees Union of Nigeria.
Exhibit A3, a letter written by the Ministry of Labour and Productivity to the Head of Service of Enugu State Government informing the latter that the claimant is the only registered association entitled to collect check off dues.
Exhibit A4 is a letter written by the Hon. Minister of Labour and Productivity to the General Secretary of the claimant informing them that Agricultural and Allied union of Nigeria is not a registered trade union and cannot unionize any employee in the agricultural sector.
Exhibit A5 is a letter from the Federal Ministry of Labour and Productivity to the Head of Service of Enugu State Government and the Attorney General of Enugu State regarding the status of the claimant as a registered trade union.
Also in support of the originating summons is written address of the claimant’s counsel.
The defendant filed a counter affidavit of 6 paragraph on the 16th November, 2017 in opposition to the originating summons and annexed thereto are Exhibit MOJ 1 and MOJ 2 which are judgment in Appeal No CA/L/92/10, and Suit No: FHC/L/CS/311/2009 which was the subject of the first mentioned appeal. Also in support of the counter affidavit is the written address of the defendant’s counsel.
In his written argument the learned counsel for the claimant A. Itedjere Esq. adopted question 1,2, and 3 of the question for determination earlier set out above as the issue for determination.
The learned counsel for the defendant S. U. Madu Esq. formulated 2 issues for determination to wit.
- Whether the applicant has the locus standi to initiate this proceedings before this court.
- Whether the applicant is the authentic and recognized trade union to be paid check off dues of all agricultural workers in Enugu State.
From the issues formulated by the counsels for the parties it is clear that there is connection between them. Also since the issue of locus standi goes to the root of this originating summons it shall be considered first. It is noted here that the issue of locus standi raised by the defendant counsel in his issue No 1 is the same issue raised in issue No 3 by the claimant’s counsel.
The issue (2) formulated by the defendant’s counsel is the same as issue 1 and 2 formulated by the claimant’s counsel and shall be so treated in this judgment.
On the issue of locus standi the defendant counsel is asking this court to determine in his issue No 1:
Whether the applicant has the locus standi to initiate this proceedings before this court
Also the defendant counsel in his issue No 3 is seeking the determination
Whether or not the change of name of a trade union affects the legal personality, liability and obligation of a Trade Union or it produces a new trade union which can demand for check off dues from members of the claimant
These issues relate to the legal status of the claimant which both parties have made an issue in these proceedings.
The defendant in paragraph 4 (i) (ii) (iii) (iv) and (v) of the affidavit in support contend in summary that the claimant is not the only registered trade union for both senior and junior staff employees in the agricultural sector in Nigeria. That the claimant ceased to be a registered trade union since 20th November, 2012 when the Court of Appeal in Appeal No. CA/L/92/10 which arose from suit No. FHC/L/CS/311/2009 entered a consent judgment based on a terms of settlement entered into by the National President of the claimant which he exhibited as Exhibit MOJ 1 and MOJ 2. He also states in paragraph 4 (vi) and (vii) of the counter affidavit that the applicant herein merged with Agricultural and Allied Workers Union of Nigeria (AAWUN) and as such ceased to exist as a legal entity by virtue of the consent judgment. In his written address learned counsel for the defendant argued that the applicant having ceased to exist as a trade union immediately forfeited all the attributes enjoyed as a legal personality including the right to sue in its name. The claimant he contend lacks the locus standi to initiate proceedings before this court. Counsel call in aid the case of United Tipper Drivers Association (Akesan Branch) V The Registered Trustee of the Redeemed Christian Church of God & 1 ors (without citation) see also Carlen (Nig) Ltd v. University of Jos. & Anor. [1994] 1 NWLR (pt 323) at 631. Thomas Vs. Local Government Service Board [1965]1 All NLR 168.
Counsel also raised the issue of estoppel and relied on S.169 of the Evidence Act to contend that the claimant has waived their right to exist. Counsel urged the court to strike out the suit on the authority of Ataguba & Co V. Gura [2005] 8 NWLR (pt 927) at 429 pg. 445
The claimant in support of issue 3 in his affidavit in support of the originating summons states, in paragraph 4, 5, 6, 7, 8 and 9 in summary that on the 10th April 2008 the Agricultural and Allied Workers Union of Nigeria was amalgamated with Agricultural and Allied Senior Staff Association and was issued with a Certificated of Amalgamation and a Certificate of Registration by the Registrar of Trade Union which counsel annexed as Exhibits A1 and A2. That the claimant by Exhibit A2 is duly registered trade union under the extant laws with the power to unionize all employees in the agricultural sector under his branches in the 36 states of the federation including Enugu State of Nigeria and the Federal Capital Territory.
In his written argument claimant counsel submits that by virtue of Exhibit A2 the claimant is the only recognized trade union that can unionize all employees in the agricultural sector in Nigeria. He cited the case of Agricultural and Allied Union of Nigeria V. Agricultural and Allied Employees Union of Nigeria Suit No: NICN/JOS/18/2016 decided by this court which recognized the claimant as a duly registered trade union with legal capacity to sue and be sued, while also holding that Agricultural and Allied Union of Nigeria has no existence known to law.
I have carefully listened to the submission of both counsels to the parties, I have also read the affidavits in support as well as the exhibits attached to the affidavit I have also considered the extensive arguments made by both parties in their written address and oral submissions in support of their positions. The question which this court is sadded with on the issues raised by the parties and under consideration here is;
whether the claimant has the requisite legal capacity to institute this action.
The defendants counsel position is that by reason of the merger the claimant ceased to exist and therefore lacks the locus standi to institute this action. I have read and considered Exhibit A1, i.e the Certificate of Amalgamation dated 10th April, 2008 issued by the Registrar of Trade Union. The certificate is evidence of amalgamation of Agricultural and Allied Workers Union of Nigeria with Agricultural and Allied Senior Staff Association under the name Agricultural and Allied Employees Union of Nigeria (AAEUN). Also Exhibit A2 is the Certificate of Registration of Agricultural & Allied Employees Union of Nigeria (AAEUN) duly issued by the Registrar of Trade Union. It is clear that after the amalgamation and adoption of the claimant’s name as evidenced in Exhibit A1. The claimant re-registered its name as evidenced by Exhibit A2. Exhibit A2 complies with S.27 of the Trade Union Act which provides that a change of name shall only become effective upon its registration. The law is settled and it is that an action can only be brought by or against a human being (natural person) or an artificial person who by statute, incorporation or the common law is expressly or impliedly empowered as a legal person under the name by which it may sue or be sued.
See United Tipper Drivers Association (Akesan Branch) V. The Registered Trustee of the Redeemed Christian Church of God & 1 Ors [2016] LPELR – 40101 (CA) see also Aatguba & Co. V. Gura (Nig.) Ltd [2005] 8 NWLR pt 927 at 429 pg. 445.
It is crystal clear that on the strength of Exhibit A2 that the claimant is a registered trade union whose Certificate of Registration is valid and subsisting and has not been cancelled or withdrawn by the Registrar of Trade Union. This court in an earlier decision in the case of Agricultural and Allied Employees Union of Nigeria Vs. Attorney General of Cross River State (unreported) Suit No: NICN/CA/55/2016 decided on the 10th July 2017 by my learned brother M.N. Esowe J. had already pronounced on the legal personality of the claimant and this court has no reason not to follow that decision.
Also in the case of Agricultural and Allied Employee’s Union of Nigeria (AAEUN) V. Nigerian Union of Local Government Employees & Anor. (unreported) Suit No. NICN/ABJ/276/2015, my learned brother and President of this court laid to rest the controversy surrounding the status of the claimant when he affirmed the registration status of the claimant. It is therefore the view of this court that the defendant’s contention that the claimant had ceased to exist after the amalgamation is without any legal justification and is therefore discountenanced. This court agrees with the submission of the learned counsel for the claimant A. Itedjere Esq. that the claimant is a duly registered trade union under the extant laws with requisite jurisdiction to sue and be sued in it registered name. Thus issue 3 formulated by the claimant counsel which was considered along with the defendant’s issue 1 is resolved in favour of the claimant. Accordingly this court holds that the claimant is a duly registered Trade Union with the requisite capacity to sue and be sued and according had the capacity to institute this action.
I will consider issue I and 2 as formulated by claimant counsel along with issue 2 as formulated by the defendant’s counsel. These three issues are very related and in summary counsels for the parties are asking this court to determine
Whether the claimant is the recognized trade union to receive the check off dues collected by the Enugu State Government and paid into a suspense account which has not been remitted to the claimant.
On this issue the claimant in paragraph 8, 9 and 10 to 18 of the affidavit in support of the originating summons, in summary states that the claimant is the only recognized trade union in the agricultural sector that is known to law that is authorized to unionize all agricultural employees in Nigeria including Enugu State and therefore entitled to receive check off dues which the Enugu State Government has refused to remit to the claimant since 2016. In support of the above position he placed reliance on Exhibit A3, Exhibit A4, and Exhibit A5 of the claimant’s affidavit. Counsel contend in his written submission that the claimant is the only registered trade union in line with the Trade Union Act with the right to receive check off dues deducted from its members. It is his contention that the Enugu State government has refused to remit the check off dues to the Claimant. He urged the court to give effect to S.17 of the Trade Union Act which is the extant law on deduction and remittance of check off dues.
On the other hand, the learned counsel for the defendant contend in response to paragraph 13 of the claimant’s affidavit in the defendant’s counter affidavit that the defendant did not agree to remit money to the claimant following the subsisting judgment of the court of Appeal (ie referring to the consent judgment in Appeal No: CA/L/92/10). Counsel submits that the claimant is not the authentic and recognized union to be paid check off dues of all Agricultural Workers in Enugu State and as a result, it is not entitled to receive any remittances in the form of check off dues from the respondent. He also contends that the claimant and another parallel union ie Agricultural and Allied Workers Union of Nigeria (AAWUN) have been contesting for the control of check off dues both at the state and federal government resulting in Suit No: FHC/L/CS/311/2009 at the Federal High Court Lagos which proceeded to the Court of Appeal Lagos in Appeal No: CA/L/92/2010 (Agricultural & Allied Workers Union of Nigeria (AAWUN) V. The Registrar of Trade Union & 2 Ors.) He contended that there is a valid and subsisting order of the court of Appeal and parties are bound to obey the same and cited the case of Cremer (1846) 1 Coop Temp. cott 342 47 ER 884 and also Oba Amos Babatunde & Ors V. Mr. Simon Olatunji & Anor IB[2000] 2 NWLR (pt646) 557 at 572. He urged the court to dismiss the claimant’s action.
First, I must address the issue surrounding the consent judgment in Appeal No: CA/L/92/10 I agree with the learned counsel for the defendant that there is a valid an subsisting order and or judgment of the Court of Appeal for which this court is bound to follow. However the question is what is the terms of the judgment and how does it effect the subject matter of this action. Specifically the 1st order in the consent judgment in the above mentioned appeal reads.
It was unanimously accepted that this honourable court to make an order directing the 1st respondent to change and issue a new certificate in the name Agricultural and Allied Union of Nigeria (AAUN) or the process for the change of the union’s name to Agricultural and Allied Union of Nigeria (AAUN) be commenced immediately.
From the terms of the above order it is clear that the order did not create a parallel trade union. Rather the order simply directed the execution or carrying out of of 2 alternative act which could have on completion given a legal status to the name Agricultural and Allied Union of Nigeria (AAUN) The judgment did not create a trade union by the above mentioned name. This is so because no trade union can be created by an order or judgment of a court. This court in the case of Agricultural and Allied Union of Nigeria & 2 Ors Vs. Agricultural and Allied Employees Union of Nigeria (AAEUN) (unreported) Suit No. NICN/JOS/18/2016 in the judgment of my learned brother R.H. Gwandu J. while considering the consent judgment in Appeal No CA/L/92/10 held that it is only the Registrar of Trade Union that can confer legal personality on the Agricultural and Allied Union of Nigeria (AAUN). My learned brother also held that (AAUN ) was still an unregistered association see also Agricultural and Allied Workers Union of Nigeria (AAWUN) V. Nigeria Labour Congress (unreported) Suit No:NIC/ABJ/16/2011 decided on the 24th July, 2013.
I am therefore unable to agree with the counsel to the defendant that there is a parallel trade union empowered to unionize employees in the agricultural sector of Nigeria for which any dispute as to who should receive remittances of check off dues is contested. This present suit and the subject matter thereof does not in my view conflict with the decision of the court of Appeal in Appeal No: CA/L/92/10 and I so hold.
Coming back to the issue of check off dues, having determined that there is no parallel or rival trade union recognized by law which can contest or lay claims to the deducted check off dues withheld by the Enugu State Government, I shall now determined whether there is any legal basis for the claim of the check off dues by the claimant. The claimant exhibit A3 is a letter written by the Zonal Director of the Federal Ministry of Labour and Productivity addressed to the Head of Service of the Government of Enugu State wherein in paragraph I (i) and (ii) informed the government that the claimant is the only trade union legally registered and recognized to unionize employees of the agricultural sector in Nigeria and that Agriculture and Allied Union of Nigeria (AAUN) is not a registered trade union and therefore not entitled to check off dues as provided for in section 17 of the Trade Union Act cap T14 LFN 2004. The letter in paragraph 3 also advice the Government of Enugu State to pay the check off deductions of Agricultural employees to the Agriculture and Allied Employees Union of Nigeria (AAEUN) (ie the claimant) to avoid any action that may likely upset the industrial peace and harmony in the State. Also the claimant’s Exhibit A4 also speaks in the same manner as Exhibit A3. Furthermore the claimant’s Exhibit A5 addressed to the Head of Service of Enugu State and the Hon. Commissioner of Justice of Enugu State advising the duo to comply with the judgment of this court in Suit No: NICN/JOS/18/2016 delivered on the 8th December, 2016 which recognized and affirmed the claimant as the registered trade union with registration number 0112 empowered to unionize employees in the agricultural sector in the Nigeria and advised the Enugu State Government to fully comply with the judgment of the National Industrial Court. This court has also seen and considered the evidential value of Exhibit A2 which is the prima facie evidence of registration of the claimant as a trade union under S. 2 of the Trade Union Act. I am satisfied that the claimant has satisfied all the requirement of the law which has enabled him to operate as a trade union. To this end this court holds that the claimant has been vested with the right to take benefit and or enforce the provisions of S.17 of the Trade Union Act cap T14 LFN 2004 which provides;
S.17 upon the registration and recognition of any of the trade union specified in the third schedule to this Act the employer shall:
(a) make the deductions from wages of every worker who is a member of any of the trade unions for the purpose of paying contributions to the trade union so registered
(b) remit such deductions to the registered office of the trade union within a reasonable period or such period as may be prescribed from time to time by the Registrar.
In the light of the above adumbrated reasons this court resolves issue 1 and 2 formulated by the claimant counsel and issue 2 formulated by the defendant counsel in favour of the claimant. On the whole this originating summons succeeds. This court hereby declares as follows:
(1) The deduction of check off dues from members of the claimant in Enugu State without remitting same to the claimant is unlawful.
(2) That only a validly registered trade union by the Registrar of Trade Union that can unionize members and collect check off dues from such members.
(3) That the decision to change of name of a trade union does not nullify the process for change of name as provided by S.27 of Trade Union Act, nor does it obviate such trade union of any of its legal duties, responsibilities and liabilities.
This court further orders as follows:
(4) All check off dues deducted by Enugu State Government from members of the claimant in the State Government establishment with all accruing interest should be remitted to the claimant forthwith.
(5) The defendant is hereby restrained from recognizing any unregistered trade union or persons as a trade union with powers to unionize agricultural workers in Enugu State.
(6) The defendant is hereby restrained from withholding claimant’s deducted check off dues in the Enugu State Government establishment.
It is also the order of this court pursuant to Order 47 Rule 7 that the defendants are to comply with the terms of this judgment within 30 days of the date of this judgment.
Judgment is entered accordingly.
Hon. Justice I.J. Essien Ph.D
(Presiding Judge)
