IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JULY 16, 2018
SUIT NO. NICN/LA/221/2017
BETWEEN
1. Bethel Ezego
2. Miracle Nwankwere
3. Innocent Moses
4. Eloko Obaro
5. Eyam Boniface
(Suing for themselves and on behalf of Non-Management
Staff of Beloxxi Industries Limited) – Claimants
AND
1. National Union of Food, Beverage and Tobacco Employees (NUFBTE)
2. Beloxxi Industries Limited – Defendants
REPRESENTATION
A, Labi-Lawal, with Miss A. O. Obe, for the claimants.
Temidayo Adeyemi, with Miss Mnena Kakwagh, for the 1st defendant.
Adeleke Benedict, for the 2nd defendant.
JUDGMENT
1. The claimants had commenced this suit by way of an originating summons filed on 8th May 2017. This originating summons by order of Court granted on 7th February 2018 was amended. By the amended originating summons, the claimants are praying for the determination of the following questions:
(1) Whether having regard to the provisions of section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 12(4) of Trade Unions Act 2005 (as amended), the claimants can be regarded and/or treated as automatic members of the 1st defendant’s union without the claimants’ voluntary consent and/or approval to be members.
(2) If question No 1 is answered in the affirmative, whether in view of the claimants’ letter dated 12th April 2017 which the claimants used to contract out of the 1st defendant’s union in line with the provisions of section 5(3) of the Labour Act, the claimants can still be regarded and/or treated as members of the 1st defendant’s union.
(3) Whether having regard to the provisions of section 5(3) of the Labour Act and the claimants’ letter dated 12th April 2017, the 2nd defendant can lawfully make deductions from the wages and salaries of the claimants for the purpose of voluntary contributions to the 1st defendant.
(4) Whether having regard to the provisions of section 12(4) of the Trade Unions Act (as amended) and section 5(4) of the Labour Act, the 2nd defendant can lawfully make deductions from the wages and salaries of the claimants for the purpose of paying contributions to the 1st defendant when the claimants have not accepted in writing to make such contributions.
2. The claimants then claimed against the defendants jointly and severally as follows:
(1) A declaration that by the provisions of section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 12(4) of the Trade Unions Act (as amended), the membership of any trade union, including the 1st defendant, by employees, including the claimants, shall be voluntary and the claimants cannot be compelled to join the 1st defendant.
(2) A declaration that by the provisions of section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 12(4) of the Trade Unions Act, the defendants cannot compel and/or treat the claimants as automatic members of the 1st defendant without the claimants’ consent and approval.
(3) A declaration that by the provisions of section 12(4) of the Trade Unions Act, section 5(3) of the Labour Act and the letter dated 12th April 2017, the 2nd defendant lacks the statutory power and duty to deduct the claimants’ wages and salaries as voluntary contribution of the claimants to the 1st defendant.
(4) A declaration that by the provisions of section 12(4) of the Trade Unions Act, section 5(4) of the Labour Act, and the letter dated 12th April 2017, the 2nd defendant lacks the statutory power and duty to deduct the claimants’ wages and salaries as voluntary contributions of the claimants to the 1st defendant without the claimants’ acceptance in writing to make such contributions.
(5) Injunction restraining the 1st and 2nd defendants from treating the claimants as members of the 1st defendant pending when the claimants, collectively and/or individually, voluntarily decide to be members of the 1st defendant.
(6) Injunction restraining the 2nd defendant from deducting from the salaries and wages of the claimants and/or any of the claimants as contribution to the 1st defendant pending when the claimants, collectively and/or individually, accept in writing to make such contributions to the 1st defendant.
3. In support of the amended originating summons is an affidavit, accompanying exhibits, a written address, reply affidavit and a reply on points of law.
4. In opposition, the 1st defendant filed a counter-affidavit, accompanying exhibits and a written address. The 2nd defendant is not contesting the originating summons but it filed a reply affidavit to the counter-affidavit of the 1st defendant. This suit is accordingly a contest between the claimants and the 1st defendant.
THE CASE OF THE CLAIMANTS
5. To the claimants, they are all non-management staff of the 2nd defendant. The 1st defendant requested that the 2nd defendant to deduct check-off dues from the wages of the claimants for the purpose of remitting contributions or union dues to the 1st defendant on the ground that the claimants are all automatic members of the union. Consequently, the 2nd defendant notified the claimant by an internal memo dated 03 April 2017 that it shall commence the deduction of check-off dues from the remuneration of the claimants from 01 May 2017. The claimants subsequently appealed to the 2nd defendant not to deduct any check-off dues from their remuneration as they are not members of the 1st defendant’s union. The 2nd defendant, however, further indicated its firm resolve to proceed with the deduction of check-off dues from the wages of the claimants. Thereafter, the claimants wrote a letter to the 1st defendant dated 12th April 2017 stating that even if by any operation of law they are deemed to be automatic members of the 1st defendant’s union they are opting out of such automatic membership and as such no check-off dues should be deducted from their remunerations. The gravamen of this action, therefore, is the protection of the claimants’ fundamental human right in view of the intransigent assertions of the defendants that the claimants are automatic members of the 1st defendant’s union and the firm resolution of the 2nd defendant to proceed with the deduction of check-off dues from the wages of the claimants.
THE CASE OF THE 1ST DEFENDANT
6. To the 1st defendant, the 2nd defendant had commenced Suit No. NICN/LA/437/2016 vide an originating summons dated and filed on the 29th June 2016, wherein it sought for the determination of a number of questions and number of reliefs. A preliminary objection was field against the suit which this Court in a considered ruling sustained. on 30th March 2017. That shortly after the Court delivered its considered ruling, precisely on 3rd April 2017, the 2nd defendant issued an Internal Memo addressed to all staff on the subject matter of deduction of union dues, giving notice to all non-management members of staff that commencing from 1st May 2017, deduction shall be made from their salaries, representing union dues for being automatic members of the National Union of Food Beverage and Tobacco Employees (NUFBTE), as per the union’s letter to the company dated 3rd June 2016 in which the union informed the company that all non-management staff are automatic members of the union. That on the very day Exhibit O was written to all staff, a letter dated the same day, 3rd April 2017, on the subject matter of the letter from Non-Management staff BELOXXI INDUSTRIES LIMITED was purported to have been written by the non-management staff of the 2nd defendant in acknowledgement of Exhibit O wherein they appealed to the 2nd defendant not to deduct union dues from their salaries as they were not automatic members in anyway of the said union, the 1st defendant herein, and that they do not agree to any automatic deduction of their salaries.
7. In an Internal Memo dated 4th April 2017 and captioned RE: DEDUCTION OF UNION DUES, and addressed to all staff, the 2nd defendant informed the staff that it had received and considered their appeal as stated in their letter of 3rd April 2017 to the effect that the staff do not want their salaries deducted as union dues. However, the 2nd defendant was purported, in the said Internal Memo, to have regrettably informed the staff that the company has no choice in the matter, especially, in the light of the ruling of this Court delivered on 30th March 2017 in respect of the matter which the 2nd defendant took to court against the union, the 1st defendant herein. In a document headed NON-MANAGEMENT STAFF OF BELOXXI INDUSTRIES LIMITED, and not addressed to any person in particular, the under listed persons were purported to have held a meeting at the factory situated at C21/5A Anioma Road, Agbara Industrial Estate, Agbara, Ogun State, on Friday 7th April 2017 with the following resolutions:
(1) That we shall challenge the decision of the Company (BELOXXI) TO DEDUCT NUFBTE union dues from our salary despite the fact that we protested and appealed to the Company against the move by our letter of 3rd April, 2017.
(2) That to that end we shall employ a lawyer to sue the union (NUFTE) and the Company (BELOXXI) to court to protect our interest.
(3) That the following shall be our representatives in Court since all of us cannot be attending Court proceedings all the time.
(a) BETHEL EZEGO
(b) MIRACLE NWANKWERE
(c) INNOCENT MOSES
(d) ELOKO OBARO
(e) EYAM BONIFACE
The document was purported to have been signed by the unnamed Presiding Officer and Recording Officer, respectively.
8. In reaction to Exhibit R above, the claimants purportedly acting solely on their own behalf, in a letter dated 12th April 2017 and addressed to the Chairman, National Union of Food Beverage & Tobacco Employees (NUFBTE), the 1st defendant herein, and copied to the Chairman of the 2nd defendant’s Branch of the 1st defendant, and captioned RE: MEMBERSHIP OF NATIONAL UNION OF FOOD BEVERAGE & TOBACCO EMPLOYEES (NUFBTE), informed the 1st defendant that they got a notice from the 2nd defendant that with effect from 1st of May 2017, the 2nd defendant was going to start deducting union dues from the claimants’ salaries because, as per the 1st defendant’s letter dated 3rd June 2016, the claimants were automatic members of the union. That in Exhibit S, the claimants declared that they were not members of the union, and that if before then they were regarded as members of the union, they were thereby withdrawing their membership and do not wish to be regarded as members any longer, and that they do not agree that their salaries be deducted for whatever reason. The case of the 1st defendant, therefore, is that the claimants are automatic members of the 1st defendant who must pay check-off dues to it, meaning that the 2nd defendant has a duty deduct the check-off dues of the claimants any pay same to the 1st defendant.
THE SUBMISSIONS OF THE CLAIMANT
9. The claimants submitted three issues for determination, namely:
(1) Whether having regard to the provisions of section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Articles 10 and 29 of the African Charter on Human and Peoples’ Right (Ratification & Enforcement) Act and section 12(4) of Trade Unions Act as amended by the Trade Unions (Amendment) Act 2005, the claimants can be regarded as or taken by law to be automatic members of the 1st defendant.
(2) Even if the claimants are deemed to be automatic members of the said union (which is denied) whether or not in the light of the claimants’ letter dated 12th April 2017 notifying the 1st defendant that they are opting out of such automatic membership and having regards to the provisions of section 5(3) of the Labour Act, the claimants can still lawfully be regarded as members of the 1st defendant’s union liable to deduction of check-off dues without such act constituting a violation of the claimants’ Fundamental Human Right to freedom of association.
(3) Whether by the combined provisions of sections 12(4), 17A, 17(B) of the Trade Unions Act as amended by the Trade Unions Act, 2005, the 2nd defendant has any statutory powers to effect deductions from the salaries or wages of the claimants for the purpose of paying contributions or union dues to the 1st defendant when the claimants are not members of the 1st defendant.
10. On issue (1), the claimants submitted that their fundamental right to freedom of association is enshrined under section 40 of Chapter IV of the 1999 Constitution, which provides thus: “Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest”, referring to Igbozor v. Offiong & ors [2016] LPELR-40100(CA). That flowing from the foregoing, the claimants may choose to form or belong to any trade union for the protection of their interest or refrain completely from joining any union. That the factual circumstances of the action instituted by the claimants is that the 1st defendant has insisted that the entire non-management team of the 2nd defendant i.e. Beloxxi Industries Limited are automatic members of the National Union of Food Beverage and Tobacco Employees. That consequent upon the foregoing, the 1st defendant demanded that the 2nd defendant should deduct from the wages of the claimants for the purpose of remitting contributions or union dues to the 1st defendant on the grounds that the claimants are all automatic members of the union. That at all times material to the commencement of this action, the claimants had made it unequivocally clear that they are not members of any union and are not inclined to become members of the 1st defendant’s union. That it follows, therefore, that in view of the clear and unambiguous provisions of section 40 of the 1999 Constitution, the actions of the 1st defendant by vehemently postulating that the claimants are all members of its union is an infringement of the claimants’ fundamental human right to freedom of association. Furthermore, that the 2nd defendant has notified the claimants via an internal memo dated 03 April 2017 and titled “DEDUCTION OF UNION DUES” stating that the 2nd defendant would commence deductions from the salaries or wages of the claimants from 01 May 2017 on the ground that the applicants are deemed to be automatic members of the 1st defendant. That this too is an infringement of their right under section 40 of the 1999 Constitution.
11. The claimants the asked what their redress is. They referred to section 46(1) of the 1999 Constitution, which stipulates thus: “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress”. Referring to Uzoukwu v. Ezeonu II [1991] 6 NWLR (Pt. 200) 708 at 761 – 762, the claimants submitted that all they need to prove is that their fundamental rights under Chapter IV of the Constitution has been contravened by the defendants or are under the imminent threat of being infringed and they would be entitled to redress. The claimants then prayed the Curt to hold that they cannot be compelled to become members of the 1st defendant as this would amount to a clear infraction of their constitutional right enshrined under section 40 of the 1999 Constitution.
12. The claimants continued that as a corollary to the principle of law stated above, membership of a trade union is voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member of any such trade union. That this principle of law is statutory, citing section 12(4) of the Trade Unions Act (as amended), which provides as follows: “Notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member”. That the right of an employee to join or form a trade union devoid of any compulsion was further enunciated in Anigboro v. Sea Trucks (Nig) Ltd [1995] 6 NWLR (Pt. 399) 35. Also referred to is Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors [2017] LPELR-41738(SC), which stressed the freedom of association. That from the combined interpretation of section 40 of the 1999 Constitution and section 12(4) of the Trade Unions Act, membership of a trade union is voluntary and by choice, and it is unlawful for the 1st defendant to compel the claimant to belong or not to belong to a trade union or association. The claimants then urged the Court to hold that section 40 of the 1999 Constitution and section 12(4) of the Trade Unions Act and the various other legislative enactments that have been cited herein provides that membership of a trade union is voluntary and by choice, and as such the claimants cannot be compelled to become automatic members of the 1st defendant’s union or regarded as taken by law to be automatic members of the 1st defendant.
13. For issue (2), the claimants submitted that membership of a trade union is voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member of any such trade union, citing section 12(4) of the Trade Unions Act (as amended). That assuming, without conceding, that the principle of automatic membership is applicable despite the provision of section 12(4) of the Trade Unions Act (as amended), it is important to address the principle of automatic recognition which postulates that the recognition of a trade union by an employer is compulsory and automatic by the combined effect of sections 5(7) and 25(1) of the Trade Unions Act, 2004 and by section 5(3)(a) and (b) of the Labour Act 2004, referring to National Industrial Court Management of Tuyil Nigeria Limited v, National Union of Chemical, footwear, Rubber, Leather and Non-Metallic Product Employee Suit No. NIC/9/2003 delivered on January 23, 2008 where it was held thus: “By section 16A of the Trade Unions Act, eligibility of being a member of a trade union is the yardstick, test or standard for determining deductibility of check-off dues for which the employer has no choice in the matter. The duty to deduct check-off dues is mandatory and no employer is permitted to choose whether or not to defect”. That while the principle of automatic recognition has been established in several judicial authorities, the principles of “opting out” is clearly stipulated in the section 5(3) of the Labour Act, which provides thus:
Upon the registration and recognition of any of the trade union specified in Part A of Schedule 3 to the Trade Unions Act, the employer shall –
(a) make deductions from the wages of all workers eligible to be members of the union for the purpose of paying contributions to the trade union so recognised; and
(b) pay any sum so deducted to the union,
but a worker may contract out of the system, in writing and where he has done so, no deductions shall be made from his wages in respect of contributions mentioned in paragraph (a) of this section.
14. To the claimants, the import of the clear and unambiguous provision of section 5(3) of the Labour Act provides that the decision on whether to remain or opt out of the membership of a trade union is voluntary and by choice of the employee. That it is clear from a reading of the foregoing provisions that the intention of the legislature was to protect the fundamental rights of employee to freedom of association as enshrined in and guaranteed by section 40 of the 1999 Constitution as also stipulated in international conventions such as the ILO Convention C87 – Freedom of Association. That as can be gleaned from the averments contained in the supporting affidavit, the claimants had written a letter dated 12th April 2017 to the 1st defendant notifying the 1st defendant that even if by any operation of law they are already deemed to be automatic members of the 1st defendant’s union, they are opting out of such automatic membership. That the legal consequences of Exhibits HOA7 and the clear provisions of section 5(3) of the Labour Act, is that the claimants, having exercised their statutory right to opt out of any automatic membership by the operation of the law, cannot in anyway howsoever be regarded as members of the 1st defendant’s union and as such any deductions of check-off dues from the remunerations of the claimants is unlawful and lacks any basis in law, referring to Nestoil Plc v. National Union of Petroleum and Natural Gas Workers Suit No: NIC/LA/08/2010 delivered on 8 March 2012. That the ultimate question now is, in view of Exhibits HOA7 and the clear provisions of section 5(3) of the Labour Act, can the claimants be compelled to become or remain members of the 1st defendant’s union? Put differently, in view of Exhibits HOA7, can the 2nd defendant proceed to deduct check-off dues from the remunerations of the claimant? The claimants answered in the negative and the submitted that even if they were ab initio deemed to be automatic members of the 1st defendant’s union, by Exhibits HOA7 they cease to be members of the 1st defendant’s union, urging the Court to hold that any attempt by the defendants to compel the claimants to become or remain members of the 1st defendant’s union would be a severe violation of the claimants fundamental human right to freedom of association.
15. As regards issue (3), the claimants submitted that the resolute decision of the 2nd defendant to commence deductions from the salaries or wages of the claimants is predicated on the erroneous conception that the claimants are automatic members of the 1st defendant’s union. That section 17 of the Trade Unions Act provides that:
Upon the registration and recognition of any of the trade unions specified in the Third Schedule to this Act, the employer shall –
(a) make deductions from the 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; and
(b) remit such deductions to the registered office of the trade union within a reasonable time period or such period as may be prescribed from time to time by the Registrar.
To the claimants, the 1st defendant’s trade union is recognized under the law but the obligation of the 2nd defendant to deduct contribution or union dues from the salaries of the claimants for remittance to the claimants will arise from the point when the claimants made a choice to belong to the trade union of the 1st defendant or any other trade union recognized under the law. That in the circumstance, however, the claimants have made it unequivocally clear that they are not members of the 1st defendant’s union and are unwilling to join the 1st defendant’s union. That section 17(a) of the Trade Unions Act cited above makes it crystal clear that deductions can only be made from the wages of every worker who is a member of the trade union. That this section of the Act implies that a worker has a right to choose not to be a member of any union. Hence, the proposed deduction of union dues from the claimants who are not members of the 1st defendant’s union is unlawful and amounts to a breach of the claimants’ fundamental human right.
16. The claimants went on that the interpretation and operation of section 17A of the Trade Unions Act cannot be considered in isolation and must be considered in consonance with the provisions of section 12(4) of the Trade Unions Act. That the provisions of section 12(4) of the Trade Unions Act commence with the phrase “Notwithstanding”. To the claimants, the legislators have drafted section 12(4) of the Trade Unions Act in a manner to preserve its exclusiveness and stated unequivocally that membership of a trade union is voluntary. That section 12(4) of the Trade Unions Act provides: “Notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member”. That the legislator had the intention to make it absolutely clear that the membership of a trade union is voluntary regardless of any other enactment capable of impeding the full interpretation of the provision of section 12(4) of the Trade Unions Act and thus inserted the proviso “Notwithstanding” in the manner indicated above. That had the legislators intended the provision of section 12(4) of the Trade Unions Act to be subjected to other provisions in the Trade Unions Act, they would have left no one in doubt and used the proviso “subject to the provision of…” On this point, the claimants referred to Ladoja v. INEC & ors [2007] 12 NWLR (Pt. 1047) 934 at 995. That flowing from this judicial authority, “notwithstanding” as used in section 12(4) of the Trade Unions Act is meant to exclude an impinging effect of any other legislation so that the said section may fulfill itself. That from section 12(4) of the Trade Unions Act membership is a precondition for the deduction from the salaries of the claimants. The acts of the 1st defendant in attempting to coerce the claimants into joining their association and the proposed deduction by the 2nd defendant is against the tenets of the law particularly the clear provisions of section 40 of the Constitution. The claimants then urged the Court to hold that they, being non-members of the 1st defendant, cannot be compelled to become members of the 1st defendant and the proposed deductions by the 2nd defendant is unlawful and unconstitutional. In conclusion, the claimant prayed the Court to grant their claims.
THE SUBMISSIONS OF THE 1ST DEFENDANT
17. The 1st defendant merely adopted the three issues submitted by the claimant for determination; and answered all three in the affirmative. On issue (1) i.e. whether the claimants can be regarded as or taken by law to be automatic members of the 1st defendant, the 1st defendant first referred to section 1(1) of the Trade Unions Act 2014 where a “trade union” is defined; and paragraph 8 of the 1st Schedule to the Trade Unions Act, which stipulates that each trade union constitution shall state the qualifications for membership of the trade union which shall include a provision to the effect that such a person shall be normally engaged in the trade or industry or elected or appointed to represent workers’ interest in the said trade or industry. To the 1st defendant, clearly, therefore, trade union membership is a fundamental right of workers, and this right is guaranteed in section 40 of the 1999 Constitution. Also referred to is NASU v. Vice Chancellor, University of Agriculture, Abeokuta [2012] 29 NLLR (Pt. 83) at 258 and Panya Anigboro v. Sea Trucks Nigeria Limited [1995] 6 NWLR (Pt. 299) 35 at 62. That from all of this, “eligibility” is what qualifies a worker for membership of a trade union of junior employees, the category to which the 1st defendant herein belongs. That the implication of this is that the membership of the non-management employees of the 2nd defendant in the 1st defendant is automatic. That is to say, there is no legal requirement for a consent form or any formal authorisation to be a member, as membership “is deemed”. Nevertheless, that each worker reserves the legal right to “contract out” or “opt out” of the union voluntarily in writing, upon which no further deductions would be made from his wages for the purpose of making contributions to the trade union.
18. To the 1st defendant, in paragraphs 9, 10, and 11 of the affidavit in support of the originating summons, the claimants averred that they are not members of the 1st defendant union or any trade union for that matter, and in arguing the issue number (1) herein, had relied on the provisions of section 12(4) of the Trade Unions (Amendment) Act 2005 to support the claim that the exercise of the Fundamental Right to Freedom of Association in section 40 of the 1999 Constitution, is voluntary and as such no employee may be compelled to join or from joining a trade union. It is the 1st defendant’s submission, however, that the exercise of the Fundamental Right to Freedom of Association in section 40 of the 1999 Constitution is not absolute as it is made subject to the provisions of section 45 of the Constitution to the effect that:
Nothing in sections 37, 38, 39 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedoms of other persons.
That in contemplation of the above provisions of section 45 of the 1999 Constitution, the Legislature enacted laws for public order and good governance in the formation, registration, activities, and general administration of trade unions in Nigeria, including trade union membership and funding.
19. The 1st defendant went on that whereas section 40 of the 1999 Constitution guarantees the right to freely form and belong to trade unions, the Trade Unions Act Cap T14 LFN 2004 regulates formation, registration, membership and general activities and administration of trade unions in Nigeria. In other words, under the Act, no association shall function as a trade union unless it has first been registered. Once registered, a trade union, by operation of law, enjoys automatic recognition, citing section 3(2). That by section 5(4) of the Trade Unions Act 2004 empowers the Registrar of Trade Unions not to register any such subsequent trade union where it appears to him that the existing trade union is sufficiently representative of the class of persons whose interest the subsequent union is intended to represent. That this position of the law was reinforced in Osawe & ors v. The Registrar of Trade Unions [2004] 1 NLLR {Pt. 1} 34 at 48, where the Supreme Court held that it was to maintain public order over the chaotic position of trade unions that necessity the restructuring of trade unions in the country to what we have today, s structure that mandated the Registrar f Trade Unions not to register any trade union where there is already one existing and catering for the dame interest as the one applying for registration. That the Supreme Court went on to charge the law courts to protect organised labour so that it is not thrown into confusion, to the detriment of its registered trade unions, by mushroom unions, ostensibly aimed for the same purpose, springing up here and there. And that as is well known, many of those mushroom unions emerge after personality clashes in the leadership echelon, each leader wanting, in most cases, to carve out an empire of his own. That Osawe was followed in The Registered Trustee of National Association of Community Health Practitioners of Nigeria & ors v. Medical and Health Workers Union of Nigeria & ors [2008] 1 SC (Pt. III) 1. The 1st defendant accordingly submitted that the right to freedom of association in section 40 of the 1999 Constitution is not absolute in the same way as the exercise of the right to voluntary trade union membership is not absolute.
20. The 1st defendant proceeded that it is trite that the right to pick and choose which union to belong to is not absolute but must be exercised within the limits of the Trade Unions Act 2004, citing PERESSA v. SSACGOC [2009] 14 NLLR (Pt. 39) 342 and NCSU v. ASCSN [2004] 1 NLLR (Pt. 3) 429. That this Court in a plethora of authorities has held that membership of a trade union at the junior category is deemed, until the individual writes to opt out, citing Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt 82) at 155. That thus is the injunction of section 5(3) of the Labour Act Cap L1 LFN 2004. Accordingly, the 1st defendant urged the Court to resolve issue (1) in its favour.
21. Regarding issue (2) i.e. whether in the light of the claimants’ letter dated 12th April 2017 notifying the 1st defendant that they are opting out of automatic membership, the claimants can still lawfully be regarded as members of the 1st defendant union liable to deduction of check-off dues without such act constituting a violation of the claimants’ Fundamental Human Right to freedom of association, the 1st defendant submitted that by virtue of section 5(7) of the Trade Unions Act, the trade unions listed in Parts A and C of Schedule 3 to the Trade Unions Act have automatic registration and recognition. More importantly, that section 5(3) of the Labour Act 2004 makes complementary provisions for automatic recognition, membership as well as automatic check-off system for the said trade unions listed in Part A of Schedule 3 to the Trade Unions Act. In other words, section 5(3) of the Labour Act as well as section 16A of the Trade Unions Act, both make provisions stipulating for compulsory recognition and deduction of check-off dues in respect of workers who are eligible to be members of a union. Where, however, the worker no longer wishes to be a member, he is free to opt out of the union. In other words, eligible members of a union are deemed to be members unless they voluntarily, and in writing, decide otherwise. Workers can only opt out individually and in writing. Representative action is not permitted in this regard, citing Corporate Affairs Commission v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees DJNIC [1978 – 2006] and Tuyil Nig. Ltd. v. NUCFRLNMPE [2009] 14 NLLR (Pt. 37) 109.
22. The 1st defendant then recounted that in paragraphs 10, 11, 12, 15, 16, 17, and 18 of the claimants’ affidavit in support of the originating summons, the claimants purported to have taken steps aimed at opting out of membership of the 1st defendant, more importantly, to avoid the deduction of check-off dues from their monthly wages. That the purported steps taken by the claimants included constituting a team of non-management staff to appeal to the 2nd defendant not to deduct (para 10); a letter dated 3rd April 2017 purportedly addressed to the 2nd defendant (Exhibit HOA-4) (para 11); purported meeting of all non-management staff of the 2nd defendant and the resolution to approach this Court, evidenced by a copy of the Minutes of the said purported Meeting (HOA-6) (para 15); letter dated 12th April 2017 addressed to the 1st defendant on the purported opting out of the 1st defendant and insisting on non-deduction of check-off dues from their wages (Exhibit HOA-7) (para 17); and purported briefing of counsel of Habeeb Oredola and Associates to enforce the fundamental human rights of the claimants, respectively. Nevertheless, that section 5(3) of the Labour Act has clearly stipulated the modality for opting out by workers or employees, including those of the 2nd defendant, from membership of the trade union, including the 1st defendant herein, which modality is that “…a worker may contract out of the system in writing…” The 1st defendant also stressed that eligible members of a union are deemed to be members unless they voluntarily, and in writing, decide otherwise; and that workers can only opt out individually and in writing; representative action is not permitted in this regard, citing Corporate Affairs Commission v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees (supra). That Exhibits HOA-4, HOA-6, and HOA-7 are purported collective or representative correspondence and do not meet the legal requirement for opting out of the union. For the opting out to be effective and legal, it must be voluntary, and must be made individually, and in writing. Effectively, therefore, that the purported representative correspondence constituted in Exhibits HOA-4, HOA-6, and HOA-7, respectively, is not in compliance with the legal stipulations for opting out and should, therefore, be discountenanced by the Court, urging the Court to so do.
23. The 1st defendant continued that contrary to the depositions in paragraphs 10 to 18 and other paragraphs of the affidavit in support of the originating summons, which state or impute that the claimants held discussions and agreed with other employees of the 2nd defendant either to withdraw their membership of the 1st defendant or to oppose deduction of check-off dues or both, the 1st defendant averred in paragraphs 15, 16, 17, 18, and 19 of its counter-affidavit that no meeting was held among the junior staff of Beloxxi Industries Limited on Monday 3rd April 2017 nor was any meeting held on Friday 7th April 2017. More importantly, that the 1st defendant had averred in paragraphs 16, 17, and 18 of its counter-affidavit that the 2nd defendant, being a manufacturing company, operates a 4 Shift System comprising Morning, Afternoon, and Night Shifts, with an overlapping 4th Shift to cover the off-days of those on Morning, Afternoon, and Night Shift, respectively. In consequence, the 1st defendant submitted that only workers on a particular shift could be at work at the same time. In other words, there cannot be 2 Shifts present and working in the factory of the 2nd defendant at one and the same time as to justify the claim of the claimants that the large number of non-management staff of the 2nd defendant attended their purported meetings held in the factory premises on 3rd April 2017 and 7th April 2017, respectively.
24. The 1st defendant went on that in paragraph 10 of the affidavit in support of the originating summons, the claimants’ averment is to the effect that upon their receipt on 3rd April 2017 of the 2nd defendant’s Internal Memo, Exhibit O, dated the same day, 3rd April 2017, and addressed to all staff on the subject matter of deduction of union dues, giving Notice to all non-management members of staff that commencing from the 1st day of May 2017, deduction shall be made from their salaries, representing union dues for being automatic members of the National Union of Food Beverage and Tobacco Employees (NUFBTE), they constituted a team among their rank to appeal to the 2nd defendant not to deduct union dues from their wages as they are not members of the 1st defendant union or any other trade union whatsoever. That in support of their averment, the claimants purportedly wrote their Exhibit HOA-3 without any evidence as to how and who convened the meeting, if a meeting was actually held; evidence of request for, and the permission granted to which association for the convening of the said meeting, and by who; and an indication of when the purported meeting was actually held, and at which venue that accommodated about 204 non-management staff who purportedly attended and signed the said Exhibit HOA-3. To the 1st defendant, all of this signified that no meetings of the non-management staff of the 2nd defendant were ever held, and that Exhibits HOA-4, HOA-6 and HOA-7 respectively were procured for the purpose of this suit at the prompting of the 2nd defendant through Exhibit HOA-3, after a trade dispute over its non-recognition of the 1st defendant in the company had arisen.
25. The 1st defendant proceeded that assuming without conceding that the said meetings were ever held, it is trite law that the said Exhibits HOA-4, HOA-6 and HOA-7 respectively convey collective or representative resolutions of the non-management staff of the 2nd defendant purporting to opt out of membership of the 1st defendant, contrary to the requirement that opting out must be voluntary, by the individual, and in writing. Consequently, the 1st defendant submitted that Exhibits HOA-4, HOA-6 and HOA-7 respectively fail to meet the requirements for opting out of trade union membership as provided for in section 5(3) of the Labour Act 2004, urging the Court to so hold.
26. It is also the argument of the 1st defendant that Exhibit HOA1 and Exhibit HOA2 attached to the affidavit in support of the originating summons were written by the union’s branch Executive Committee and the 1st defendant, respectively, and addressed to Mrs Rosaline Izaye, and the Company Secretary of 2nd defendant, respectively. It is, therefore, curious how the claimants, acting on their own volition, could be in possession of documents not addressed to them, and in custody of the 2nd defendant, without laying the proper foundation for their possession of same before exhibiting the documents in evidence before this Court. Importantly, it is the further argument of the 1st defendant, that Exhibits HOA1 and HOA2 having not been addressed to the claimants in the first instance, and same having not been made available to the claimants by the 1st defendant or its Branch Executive Committee, it is logical to come to the inevitable conclusion that the exhibits were made available to the claimants by the 2nd defendant, a fact which goes to show that the purported actions of the claimants in opting out of membership of the 1st defendant, predicated upon the said Exhibits HOA1 and HOA2, are not voluntary, contrary the clear provisions of section 5(3) of the Labour Act. In paragraph 6 of its counter-affidavit, the 1st defendant averred that it is not the practice of the 2nd defendant to inform its employees of statutory deductions in the manner it purportedly did in Exhibit O, it also being a statutory deduction, thus raising the inevitable presumption that Exhibit O was deliberately issued to prompt the eligible members of the 1st defendant to opt out of the union so that it could accord with the fanciful aversion of the 2nd defendant to the existence of trade union in the company.
27. The 1st defendant also contended that the 2nd defendant had ample time, from the 23rd March 2016 to implement the automatic check-off system if it sincerely and genuinely wanted to. However, it had to wait till the ruling on 30th March 2017 in Suit No. NICN/LA/437/2016 on union recognition and check-off deduction, a whole year, before issuing Exhibit O with the promise, and all the grandstanding, to Comply with the law by effectively commencing the deductions by 1st May 2017. The 1st defendant then submitted that the purported opting out of membership of the 1st defendant by the non-management staff of the 2nd defendant who are eligible members of the union, as contained in Exhibits HOA-4, HOA-6 and HOA-7, is not voluntary as same is being orchestrated by the 2nd defendant, and thus fails to meet the requirement for opting out of the trade union under the provisions of section 5(3) of the Labour Act 2004, urging the Court to so hold.
28. Issue (3) is whether the 2nd defendant has any statutory powers to effect deductions from the salaries or wages of the claimants for the purpose of paying contributions or union dues to the 1st defendant when they are not members of the 1st defendant. Once again, the 1st defendant referred to section 12(4) of the Trade Unions Act as amended by the Trade Unions (Amendment) Act 2005. On the claimants’ argument that given section 40 of the 1999 Constitution, section 12(4) of the Trade Unions Act must be read and interpreted as giving an unfettered freedom to workers to voluntarily join any union of their choice stressing that the membership of a trade union is voluntary regardless of any other enactment capable of impeding the full interpretation of the provision of section 12(4), the 1st defendant denied ever coercing or attempting to coerce the claimants into joining the trade union. The 1st defendant then submitted that the claimants have applied section 12(4) out of context. That this Court had admonished against such a misapplication or misinterpretation of the voluntary membership of trade unions as provided in section 12(4) of the Trade Unions Act, citing National Union of Shop and Distributive Employees (NUSDE) v. The Steel and Engineering Workers Union of Nigeria (SEWUN) [2013] 35 NLLR (Pt. 106) 606 at 648 and PERESSA v. SSACGOC [2009] 24 NLLR (Pt. 39) 306.
29. The 1st defendant also referred to section 17(a) and (b) of the Trade Unions Act, as amended by the Trade Unions (Amendment) Act 2005, which provides as follows:
Upon the registration and recognition of any of the trade unions specified in the Third Schedule to this Act, the employer shall –
(a) make deduction from the 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; and
(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.
The claimants had argued that section 17(a) of the Trade Unions Act makes it crystal clear that deductions can only be made from the wages of every worker who is a member of the trade union, and that the claimants have made it unequivocally clear that they are not members of the 1st defendant union and are unwilling to join the 1st defendant union; as such the proposed deduction of union dues from the claimants who are not members of the 1st defendant union is unlawful and amounts to a breach of the claimants’ fundamental human right. To the 1st defendant, this submission of the claimants is grossly misplaced and woefully missed the point, citing CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 at 31 – 32 and Nestoil Plc v. NUPENG (supra), which held that junior staff (as the claimants herein) are deemed to be members of a union until they individually and in writing opt not to be; while senior staff are deemed not to be members until they individually and in writing opt to be.
30. It is the further submission of the 1st defendant that the claimants and the other non-managerial employees of the 2nd defendant who are junior employees, are deemed to be (automatic) members of the 1st defendant, and consequently, the 2nd defendant has an obligation and a legal duty at that, to make deductions from the wages of every worker who is a (deemed) member of the 1st defendant for the purpose of paying contributions to the trade union, in compliance with section 17(a) of the Trade Unions Act. Curiously, that the claimants argued that they had made it unequivocally clear that they are not members of the 1st defendant union and are unwilling to join the 1st defendant union. However, that from the facts of the this case and the affidavit evidence in support of the originating summons, there is nothing to support the claimants’ argument or assertion that they, as well as the other non-managerial employees who are junior employees of the 2nd defendant, are not members of the 1st defendant, or that they have relinquished membership of the 1st defendant. That even Exhibits HOA-3 to HOA-7, which are collective or representative correspondences, relied upon by the claimants, do not meet the legal requirement for opting out of the union.
31. The claimants had also argued the proposed deduction of union dues from the claimants who are not members of the 1st defendant union is unlawful and amounts to a breach of the claimants’ fundamental human rights. To the 1st defendant, this argument is misplaced. That it is trite that the claimants, being junior employees like their other non-managerial counterparts in the employment of the 2nd defendant, are deemed to be or taken as automatic members of the 1st defendant and, therefore, the deduction of union dues from their wages is lawful and not in breach of the claimants’ fundamental human rights, citing CAC v. AUPCTRE (supra), which considered and held as constitutional the automatic deduction of check-off dues, sting in the process that although recognition of trade unions is mandatory and deduction of check-off dues automatic, each worker has the freedom and liberty to opt out of trade unionism; that this freedom exists certainly cancels out whatever compulsion can be said to exist and so would have rendered the law unconstitutional. This Court went on to hols that freedom to associate under section 40 of the 1999 Constitution certainly includes the freedom to disassociate or not to associate; and sections 5(3) of the Labour Act and 16A of the TUA, now Section 17(a) and (b), certainly accommodate this and so are also constitutional. The 1st defendant then submitted that the automatic membership and deduction of check-off dues in respect of the claimants and the non-managerial employees who are junior employees in the employment of the 2nd defendant are lawful and constitutional, and accords with their fundamental human rights to freedom of association under section 40 of the 1999 Constitution. Consequently, that the 2nd defendant has statutory powers, by the combined provisions of sections 12(4}, 17A, 17(B} of the Trade Unions Act as amended by the Trade Unions Act 2005 to effect deductions from the salaries or wages of the claimants for the purpose of paying contributions or union dues to the 1st defendant, citing CAC v. AUPCTRE (supra).
32. In conclusion, the 1st defendant submitted that as per the injunctive orders that the claimants are praying for, the purported and alleged withdrawal of membership by the claimants is unlawful and negates the clear provision of the law which is that the junior category of workers can only terminate their membership of their union by opting out individually and in writing; and Exhibit HOA-7 is not in conformity with the position of the law. Relying on UAC v. Macfoy [1961] 3 All ER 1169 and Emenike v. PDP & ors [2012] LPELR-7802(SC), the 1st defendant contended that the claimants have failed to prove or establish, by their own evidence, that they are entitled to the declaratory reliefs being sought and so their case should be dismissed with substantial cost.
THE CLAIMANTS’ REPLY ON POINTS OF LAW
33. In their reply on points of law, the claimants submitted that it can be safely concluded that the entire submission of the 1st defendant bothers on the provisions of section 5(3) of the Labour Act, section16A of the Trade Unions Act 2004 and various judicial decisions on the interpretation and application of the said sections. The claimants conceded that both sections 5(3) of the Labour Act and 16A of the Trade Union Act 2004 once existed in our laws, meaning they were once existing laws in Nigeria and the combined effect of the two (2) laws, at the time of their existence, gave rise to the above mentioned principles. However, that as at today, both sections 5(3) of the Labour Act and 16A of the Trade Union Act are no longer existing laws within the contemplation of the provisions of section 315(4)(b) of the Constitution of the Federal Republic of Nigeria 1999 and no Court, in Nigeria vested with the requisite jurisdiction can give effect to those provisions if the attention of the Court is called to the state of their relevance. To the claimants, an exposition on the gradual directional change which led to the disappearance of the laws relied on by the 1st defendant from the community of laws in Nigeria is necessary.
34. The claimants went on that the principles of eligibility, automatic check-off dues and opting in and opting out were introduced into our legal system, or better still, the labour/trade union matters via section 7 of Decree No 17 of 1986, which provides as follows:
(3) Upon the registration and recognition of any of the trade unions specified in Part A of Schedule 3 to the Trade Unions Act, the employer shall –
(a) make deduction from the wages of all workers eligible to be members of union for the purpose of paying contributions to the trade union so recognised; and
(b) pay any sum so deducted to the trade union,
but a worker may contract out of the system, in writing, where he has done so, no deduction shall be made from his wages in respect of contributions mentioned in paragraph (a) of this section.
(4) No deductions shall be made from the wages and salaries of persons who are eligible members of any of the trade unions specified in Part B of the Third Schedule of the Trade Unions Act except if the person concerned has accepted, in writing, to make voluntary contributions to the trade union.
35. To the claimants, section 7 of Decree No 17 of 1986 is in pari materia with sections 5(3) and (4) of the present Labour Act. That it should be noted that sub-section (3) of the above quoted law referred to Part A of the Trade Unions Act while sub-section (4) referred to Part B of the same Trade Union Act. That prior to the promulgation of the said section 7 of Decree No 17 of 1986, in 1973, Decree No 31 of 1973 known as the Trade Union Decree 1973 was promulgated. Part A of the Decree, which was referred to in Decree No 17 of 1986, is the Workers’ Unions while Part B applied to the Senior Staff Unions. Therefore, as at 1986, by implication, sections 5(3) of the Labour Act could only be interpreted to mean that upon the registration and recognition of any workers’ unions, the employer shall make deductions from the wages of all workers eligible to be members of the union for the purpose of paying contributions to the trade union so recognised and pay any sum so deducted to the trade union. But a worker may contract out of the system, in writing, where he has done so; no deduction shall be made from his wages in respect of said contributions. Also, that as at 1986, by virtue of sections 5(4) of the Labour Act, no deductions shall be made from the wages and salaries of persons who are eligible members of any of the Senior Staff Unions except if the person concerned has accepted, in writing, to make voluntary contributions to the trade union. That as at 1986, by a community reading, and combined effect, of section 5(3) and (4) of the Labour Act and Part A and B of the Third Schedule of the Trade Unions Act, the principle of eligibility existed, the principle of automatic check-off dues for eligible members of the workers’ unions existed, the principle of opting in and opting out for senior staff and junior staff respectively existed but the principle of automatic membership was neither mentioned nor implied.
36. The claimants continued that ten (10) years after the promulgation of Decree No 17 of 1986, in the year 1996, Decree No 31 of 1973 (Trade Union Act) was amended via section 3 of Decree No 4 of 1996, and the said amendment introduced the provisions of section 16A to the Act, which provides as follow:
Upon the registration and recognition of any of the trade unions specified in the Third Schedule to this Act, the employer shall –
(a) make deduction from the wages of every worker who is eligible to be a member of any of the trade unions for the purpose of paying contributions to the Trade Union so registered; and
(b) pay any sum so deducted directly to the registered office of the Trade Union after deducting what is due and payable to the Central Labour Organisation.
To the claimants, the legal implication of the above amendment is that section 16A of the Trade Unions Act, reiterated the principles of eligibility and automatic check-off dues for every worker who is eligible to be a member of any trade union specified in the Third Schedule of the Act (not just Parts A or B). That further to the inclusion of section 16A in the Trade Union Act, section 10 of the said Decree No 4 of 1996 also provided thus: “The Third Schedule to the principal Act is hereby amended by substituting therefore the following new schedule that is…” That by the amendment occasioned by section 10 referred to above, Part A of the Third Schedule became the list of 29 re-structured trade unions affiliated with the Central Labour Organization while Part B became the jurisdictional scope of each of the 29 re-structured Trade Unions and Part C, newly introduced, contained the list of Senior Staff and Employers’ Associations. To the claimants, it should be noted that section 5(3) and (4) of the Labour Act was not amended despite the amendment of the Third Schedule of the Trade Unions Act. Therefore, the provision of section 4(1) of the Interpretation Act automatically applies to the interpretation and the application of section 5(3) and (4) of the Labour Act.
37. Going forward, that in the same year 1996, by section 5 of Decree No 26 of 1996, the provisions of section 16A of the Trade Unions Act was further amended by the addition of a proviso which then made the section to read thus:
Upon the registration and recognition of any of the trade unions in the Third Schedule to this Act, the employer shall –
(a) make deduction from the wages of every worker who is eligible to be a member of any of the trade unions for the purpose of paying contributions to the Trade Union so registered; and
(b) pay any sum so deducted directly to the registered office of the Trade Union after deducting what is due and payable to the Central Labour Organisation:
provided that compliance with the provisions of this section of this Decree shall be subject to the insertion of a “No strike” clause in the relevant Collective Bargaining Agreements between the workers and their employers.
38. Furthermore, that in the year 1999, by Decree No 1 of 1999, section 16A was again amended to read:
Upon the registration and recognition of any of the trade unions in the Third Schedule to this Act, the employer shall –
(a) make deduction from the wages of every worker who is eligible to be a member of any of the trade unions for the purpose of paying contributions to the Trade Union so registered; and
(b) pay any sum so deducted directly to the registered office of the Trade Union;
provided that compliance with the provisions of this section of this Decree shall be subject to the insertion of “No strike” and “No Lock-Out” clause in the relevant Collective Bargaining Agreement between the workers and their employers.
That the only difference between the 1996 and 1999 amendments is the abolishment of remittance of dues to the Central Labour Organization which is contained in paragraph B of the 1996 Decree.
39. Thereafter, subsequent to the inauguration of the 3rd National Assembly, in the year 2005, the National Assembly repealed the provisions of Section 16A of the Trade Unions Act and substituted same with section 17 of the Trade Unions Act. The said section 17 reads as follows:
Upon the registration and recognition of any of the trade unions specified in the Third Schedule to this Act, the employer shall –
(a) make deduction from the 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; and
(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.
Also, that Part A of the Third Schedule was amended as to the list of restructured trade unions affiliated with the Central Labour Organization, while Part B as to the jurisdictional scope of each of the re-structured Trade Unions and Part C contains the list of Senior Staff and Employers’ Associations.
40. To the claimants, despite these series of amendments of the Trade Unions Act, section 5(3) and (4) of the Labour Act was not amended and Part A of the Third Schedule remains the list of re-structured trade unions affiliated with the Central Labour Organization while Part B remains the jurisdictional scope of each of the re-structured trade unions and Part C remains the list of Senior Staff and Employers’ Associations. It is thus the claimants’ submission, going by the present state of the law, that section 5(3) of the Labour Act still refers to Part A of Schedule 3 of the Trade Unions Act which has the list of re-structured trade unions affiliated with the Central Labour Organization. On the said list, the name of the 1st defendant is No. 11 on the list. Similarly, that section 5(4) of the Labour Act also refers to Part B of Schedule 3 of the Trade Unions Act which is the jurisdictional scope of each of the re-structured trade unions, and just like as in Part A, the name of the 1st defendant is also No.11 on the list.
41. The claimants proceeded that a reference in an enactment to another enactment shall, where the other enactment has been amended, be construed as reference to the other enactment as amended. That this is the injunction of the provision of section 4(1) of the Interpretation Act which provides as follows: “a reference in an enactment to another enactment shall, if the other enactment has been amended, be construed as reference to the other enactment as amended. That the literal and statutory interpretation and the application of the above provision of the law is that, a reference in section 5(3) of the present day Labour Act to Part A of the Third Schedule of the Trade Unions Act, shall now be construed as reference to the list of restructured Trade Unions affiliated with the Central Labour Organization, while a reference in section 5(4) of the present day Labour Act to Part B of the Third Schedule of the Trade Unions Act, shall now be construed as reference to the jurisdictional scope of each of the re-structured Trade Unions. That where there is a statutory provision and injunction for the rule of interpretation to be applied in the interpretation of a statute, the court is not allowed to look elsewhere in search of the applicable rule of interpretation because the court is compelled, in law, to apply the interpretation which is contained in the Statute of Interpretation or the interpretation section of the particular statute, citing section 1 of the Interpretation Act and Unilorin v. Adeniran [2007] 6 NWLR (Pt. 1031) 498 at 529.
42. That as earlier submitted, Parts A and B of the Trade Unions Act now has the same list of workers’ union pursuant to the amendment occasioned by the provision of section 10 of Decree No 4 of 1996, and the name of the 1st defendant appears on No 11 of each of the lists, a situation that is the same under the TUA 2005 (as amended). That the legal implication of the said amendments is that subsections (3) and (4) of section 5 of the Labour Act are now in conflict as the two provisions can no longer stand together. This is because section 5(3) provides for automatic check-off dues for all workers eligible to be members of the 1st defendant and section 5(4) of the same Act prohibits automatic check off dues for the same workers who are eligible members of the 1st defendant. Therefore, that in the resolution of the conflicts mentioned above, the law is where a preceding section of an Act is in conflict with a succeeding section of that same Act, the succeeding section of the Act is said to have impliedly repealed the preceding section, citing Arak v. Egbue [2003] 17 NWLR (Pt. 848) 1 and Akintokun v. LPDC [2014] AFLWR – the page is not supplied. Therefore, that since the year 1996, section 5(4) of the Labour Act has repealed the provision of section 5(3) of the same Act by virtue of the amendment of the content of Part B of the Third Schedule of Trade Unions Act. That the mentioned amendment and the implied repeal of provision of section 5(3) of the Labour Act then set section 5(4) of the Labour Act in collision against the provision of section 16A of the Trade Unions Act. That in year 2005, perhaps this conflict was realized by the legislature who then repealed the provisions of section 16A of the Trade Unions Act and substituted same with section 17 of the Trade Unions Act 2005 (as amended). The said section 17 of the Trade Unions Act provides thus:
Upon the registration and recognition of any of the trade unions specified in the Third Schedule to this Act, the employer shall –
(a) make deduction from the 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; and
(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.
That where the provision of the law is clear, the court must ascribe its ordinary meaning, citing Kraus Thompson Org. v. NIPSS [2004] 17 NWLR (Pt. 901) 44.
43. To the claimants, section 17 quoted is clear and the legal implication of its introduction is that the principle of eligibility which is the basis for automatic deduction of check-off dues and which was then in conflict with the provisions of section 5(4) of the Labour Act was taken care of and the situation was corrected by removing the principle from our laws, referring to NNPC v. Zaria [2014] LPELR-22362. Therefore, that the principle of eligibility, as it relates to the deduction of check off dues from the wages and salaries of workers, no longer exists in labour/trade union affairs. That the law, as at today, is that upon registration and recognition, the employer can only make deduction from the wages and salaries of a worker who is a member of any trade union and not a worker eligible to be a member of any of the trade union. It is the claimants’ submission that among the four (4) principles of eligibility, automatic membership, automatic check-off dues and concept of opting in and opting out, three and half (31/2) of the principles are gone, as in they no longer exist in our laws. The only half (1/2) left is the concept of opting in for workers (including junior staff) by virtue of the provision of section 5(4) of the Labour Act.
44. The claimants the asked if there was intention, on the part of the legislature, to remove the concept of eligibility from section 17 of Trade Unions Act, why they did not remove same from the provision of section 5(4). That the simple answer is that it is no longer necessary because the combined effect of the provisions of section 17 of the Trade Unions Act and section 5(4) of the Labour Act takes away the principle of eligibility in its totality. That perhaps this is the reason the Legislature included the provisions of section 12(4) in the TUA (as amended), section that frowns against the concept of automatic membership and provides the concept of voluntary membership of union. That the 1st defendant suggested that because the right of the non-management staff of the 2nd defendant to opt out of the membership of the 1st defendant is reserved and preserved, the voluntary principle and provision contained in section 12(4) is neither eroded nor affected. To the claimants, the purported right to opt out given to the claimants only negates the prohibition as to being forced to remain a member of a trade union, which means the claimants cannot be forced to remain members of the 1st defendant. Therefore, they can opt out of the union in writing. The claimants then asked: Now, where is the right or the principle of law which negates the fact that the claimants cannot be forced to join the 1st defendant in the first place? They answered in that there is none. That the ‘much touted’ principle of automatic membership of the claimants amounts to the claimants being forced to join the 1st defendant, which is a violation of the provision of section 12(4) of TUA, referring to Registered Trustees of Association of Tippers and Quarry Owners of Nig v. Yusuf [2011] LPELR-5024(CA).
45. The claimants went on that Nestoil Plc v. NUPENG as cited by the 1st defendant is inapplicable as this Court’s attention was not drawn to section 5(4) of the Labour Act and the fact that section 5(3) of the same law had been impliedly repealed. The 1st defendant also cited CAC v. AUPCTRE, which to the claimants was decided on the provisions of section 16A of TUA 2004 and section 5(3) of the Labour Act which are no longer the law. Also, that the 1st defendant relied on the decision of this court in NUSDE v. SEWUN. To the claimants, in the face of the provision of 5(4) of the Labour Act, this judicial authority is no longer applicable. That the issue of voluntariness decided in PERESSA v. SSACGOC was not voluntariness in respect of membership of a union but rather voluntariness in respect of choice of union. That what the decision suggests is that a worker’s choice of union is not at large but within the context of the law. The decision did not override the principle of voluntariness of membership entrenched in section 17 of the TUA 2005. Therefore, that since section 5(3) of the Labour Act is no longer the law, the 1st defendant or any of the defendants cannot fault the mode and the manner in which the claimants chose to register their non-membership, and/or the desire not to be members, of the 1st defendant. In conclusion, the claimants urged the Court to hold that section 5(3) of the Labour Act has been impliedly repealed by the provisions of section 5(4) same Act consequent upon the amendment of Part B of the Third Schedule to the Trade Union Act; and to hold that section 16A of the Trade Unions Act 2004 has been repealed consequent to the introduction of section 17 of the Trade Unions Act 2005.
COURT’S DECISION
46. After due consideration of the processes and submissions of the parties, I start off with the fact of the 2nd defendant not contesting the originating summons and yet filing a reply affidavit to the 1st defendant’s counter-affidavit. Given that this procedure is strange, I have conveniently chosen to ignore the reply affidavit of the 2nd defendant. I note that the 2nd defendant had on 29th June 2016 taken up an originating summons against the 1st defendant and 2 others praying that given section 17(a) of the Trade Unions Act (TUA) LFN 2014 and section 40 of the 1999 Constitution it is not bound to deduct check-off dues and pay same to the 1st defendant, and an order restraining the defendants from picketing or disturbing the day-to-day operations and running of the claimant’s offices and factories on the pretext that it is violating the extant labour laws of Nigeria. In a considered ruling, this Court held the 2nd defendant (as claimant) to be interfering in union matters and as lacking the locus to sue. That suit was Beloxxi Industries Limited v. National Union of Food, Beverage and Tobacco Employees (NUFBTE) unreported Suit No. NICN/LA/437/2016, the ruling of which was delivered on 30th March 2017. The issues (ends) in the instant suit are not different from the ends the 2nd defendant sought in NICN/LA/437/2016. So having to be sued as 2nd defendant in the instant suit and stating that it is not contesting the originating summons and yet filing a reply affidavit to the 1st defendant’s counter-affidavit is simply working towards a desired end. What the 2nd defendant could not get in NICN/LA/437/2016, it wants to get through the backdoor. I seriously wonder why legal practitioners play this kind of legal pranks and think that the Court will not see through the pranks. These pranks are becoming common place in the world of work where the rule is one of non-interference in union matters by an employer. What we see often is an employer hiding in the background and controlling events as it wishes. If the claimants in the instant case succeed, it is the 2nd defendant that ultimately succeeds since it was the first to approach this Court but failed. Like I pointed out, I have chosen to ignore the reply affidavit of the 2nd defendant in the instant suit.
47. The claimants moved their originating summons, and parties adopted their written addresses. The 1st defendant, after urging this Court to note Patrick Eze & ors v. Sergius Udeh 2017] LPELR-42716(CA), also urged the Court to note that the claimants’ reply on points of law went outside of the questions posed in the amended originating summons and the remit of a reply on points of law. Once again, one sees legal pranks at work. The claimants cleverly submitted in paragraph 3.2 of their reply on points of law that the 1st defendant’s submissions introduced four principles i.e. those of eligibility, automatic membership, automatic check-off dues and concept of opting in and opting out, as if it was in fact the 1st defendant who first talked of these issues. All through the claimants’ submissions, these issues featured if not directly certainly impliedly. In thus making its assertion in the said paragraph 3.2, the claimants then went on their road trip discussing issues it should have discussed in their written address in the first place but did not. In doing this, the claimants raised further issues knowing fully well that especially the 1st defendant cannot respond to them; for to ask the 1st respondent to respond would mean prolonging this case – after all, parties’ submissions must stop at a point.
48. Now, a reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. A reply on points of law is thus not meant to improve on the quality of a written address; it is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). So, strictly speaking only paragraphs 3.58 to 3.60 of the claimants’ reply on points of law validly qualify as a reply on points of law. Despite all of this, however, I have chosen to factor in the claimants’ reply on points of law just so that a categorical statement can be made by this Court since during the moving of their originating summons, the claimants’ counsel made it look like all the decisions of this Court granted previously on the issue they raised in the originating summons were given per incuriam. After intimating this Court in paragraphs 3.3 and 3.4 of the reply on points of law that sections 5(3) and 16A of the Trade Unions Act (TUA) are no longer existing laws within the contemplation of section 315(4) of the 1999 Constitution, hear the claimants’ counsel in paragraph 3.5 of the reply on points of law:
For a genuine legal appreciation and understanding of the above submission, we, with respect, invite this honourable court to follow us on the exposition on the gradual directional change which led to the disappearance of the laws relied on by the 1st defendant from the community of laws in Nigeria.
49. The Court awaits this exposition. Meanwhile, I note the phrase “with respect” used by the claimant’s counsel. It was Lord Neuberger who in a Lecture in memory of John Gilling delivered at St Mary’s Bourne Street, London on 22 June 2016 titled, “The Grace of God is in Courtesy?”, and available at https://www.supremecourt.uk/docs/speech-160622.pdf as accessed on 15th July 2018, at paragraph 30 alluded thus:
Rudeness by advocates to judges has to be more subtle…So, when the judge makes what the advocate thinks is a stupid point, the advocate will often begin his answer with the words, “My Lord, with great respect…”; if he thinks the point is particularly stupid, the advocate may begin his answer by saying, “My Lord, with the greatest respect….”. I leave it to your imagination as to what an advocate thought of a point I once made to him in argument when he started his answer with the words, “My Lord, with the very greatest respect possible…”.
50. Before going into the merit of the submissions of the parties, I need to clarify a submission of the claimants. The claimants had stated that under section 46 of the 1999 Constitution, they are entitled to redress. I only need to quickly point out here that section 46 applies to the High Court, not this Court. This Court is not a High Court for purposes of section 46 of the 1999 Constitution. See SSAUTHRIAI v. Olotu [2016] 14 NWLR (Pt. 1531) 8 at 18 and Alozie Chimezirim Manasse v. Sterling Bank Plc & EFCC unreported Suit No. NICN/LA/173/2017, the ruling of which was delivered on 16th February 2018.
51. The claimants’ case is hinged on a faulty assumption. The claimants assume that the distinction between junior and senior staff in terms of unionism is no longer the law. It is this assumption that led the claimants to come to this Court by way of an originating summons instead of the more appropriate process of a complaint with pleadings. This being the case, in describing themselves as “suing for themselves and on behalf of Non-Management Staff of Beloxxi Industries Limited”, the claimants did not appreciate the fact that in fact and in conception, “Non-Management Staff” could connote senior or junior staff as any staff who is not in management may be junior or senior staff. In fact all through their affidavit in support, the claimants kept referring to themselves as non-management staff. This being the case, a fundamental premise for the resolution of this case is missing i.e. whether the case is about unionization of senior staff or unionization of junior staff. For unless this question is answered, there is no way that the merit of the case can be answered. What the claimants have thus presented to this Court as a case are issues that can only be answered by conjecturing; that is to say, the answer from this Court will be in the nature of: if the claimants are senior staff, then the answer is “X”, and if they are junior staff, the answer is “Y”. This is not how disputes are resolved in courts. The claimants’ affidavit in support does not even describe who the claimants are other than that they are non-management staff. Only the 1st claimant is described in paragraph 1 as “a Marketing Executive with Beloxxi Industries Limited…”, presumably a senior staff; the 1st defendant acknowledged in paragraph 4(a) of its counter-affidavit that the 1st claimant is a senior staff. Nothing is said of the other 4 claimants in the affidavit in support other than that they are non-management staff of the 2nd defendant. The 1st defendant, however, in paragraph 4(b) to (e) of its counter-affidavit described them as junior staff. This description by the 1st defendant cannot, however, be conclusive as being non-management staff does not connote being junior staff.
52. The originating summons itself is meant to resolve disputes where the facts are fairly not in dispute. The 1st defendant in its counter-affidavit had challenged the averments of the claimants in paragraphs 10 of the affidavit in support that a meeting of junior staff held; and in paragraphs 44 to 48 of its written address, the 1st defendant depicted how impossible it can be for such a meeting to have held. Secondly, and quite fundamentally I would say, I indicated that the distinction as to junior or senior staff is crucial to determining the issue of union membership and hence determining the instant case. The 1st defendant maintains that the claimants are junior staff; in fact all though its submissions this assumption runs through. See, for instance, paragraph 4(b) to (e) of its counter-affidavit and paragraphs 65, 67 and 75 of the 1st defendant’s written address. In paragraph 4(a) of its counter-affidavit, the claimants averred that the 1st claimant is a senior staff. So what we have fundamentally lacking is the issue of the status (whether junior staff or senior staff) of the claimants. Like I indicated earlier, the claimants assume that this distinction is irrelevant. So while it is incorrect for the claimants to assume that the distinction is irrelevant, it is equally incorrect for the 1st defendant to assume that non-management staff necessarily means junior staff. Only concrete evidence can show who amongst the claimants is a senior staff or junior staff. Even the description of the 1st claimant in paragraph 1 of the supporting affidavit as “a Marketing Executive” is not conclusive that the 1st claimant is or is not a senior staff. As it is, only pleadings could have resolved these issues of facts; but no, lawyers want shortcuts, hence an originating summons.
53. The point is that in Adegbuyi v. APC & ors [2014] LPELR-24214(SC), relying on National Bank of Nigeria v. Alakija [1978] 9 – 10 SC 59, it was held thus:
The principle has become trite that the originating summons procedure is not for causes in which facts remain hostile and in conflict. The procedure is ideal for the determination of short and straight forward questions of construction and interpretation of documents or statutes. It is never the applicable procedure in controversial cases where the facts on which the court is invited to construe or interpret the document or legislation in relation to remain violently in conflict.
See also Famfa Oil Limited v. AG of the Federation & anor [2003] LPELR-1239(SC); [2003] 18 NWLR (Pt. 852) 453; [2003] 9 – 10 SC 31 and Njideka Ezeigwe v. Chief Benson Chuks Nwawulu & ors [2010] LPELR-1201(SC); [2010] 4 NWLR (Pt. 1183) 159 SC. In thus choosing to come by way of an originating summons as they did, the claimants have delimited their case to just the questions they posed and the facts they present, which I stated are even wanting. See Sylvanus Eze v. University of Jos [2012] LPELR-20072(CA). The matter must thus be resolved within the limits of the claimants’ affidavit evidence since by law having to come by way of originating summons instead of a complaint does not signify that the case is incompetent. See Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor unreported Suit No. NICN/LA/74/2014, the judgment of which was delivered on 30th January 2015. As enjoined by NJC v. Hon. Justice Jubril Babajide Aladejana [2014] LPELR-24134(CA), therefore, the resolution of the instant case (since it is an originating proceedings) must be restricted to the issues raised in the originating summons.
54. I must however reiterate that in general this Court has in a number of cases lamented the stratagem of lawyers preferring the originating summons over the complaint and hence pleadings. See, for instance, Dr Olusola Adeyelu v. Lagos University Teaching Hospital (LUTH) & 2 ors unreported Suit No. NICN/LA/94/2017, the judgment of which was delivered on 25th April 2017 and First Bank of Nigeria Limited v. Nigeria Union of Pensioners & 3 ors unreported Suit No. NICN/LA/48/2016, the judgment of which was delivered on 12th July 2016. Since in the instant case the claimants chose the process of an originating summons, they must stand or fall on it.
55. From the questions posed by the claimants and the reliefs they seek, their case is simple: that they are not members of the 1st defendant union, whether in law or in fact; that they have an unfettered right to join or not to join the 1st defendant union; and that even if they are deemed by law to be members of the 1st defendant union, they have contracted or opted out of it. In all of this, however, the claimants posit that the junior/senior staff distinction as to unionism is no longer relevant as it is no longer the law to insist on that categorization when determining who is a member of trade union. I indicated earlier that this assumption is wrong. I shall in the main show this.
56. The 1st defendant’s case on the other hand is that “eligibility” is what qualifies a worker for membership of a trade union of junior employees, the category to which the 1st defendant herein belongs. That the implication of this is that the membership of the non-management employees of the 2nd defendant in the 1st defendant is automatic. That is to say, there is no legal requirement for a consent form or any formal authorisation to be a member, as membership “is deemed”. The answer by the claimants to this is that this was the law; and now, it is no longer so.
57. In a line of cases, cases that the claimants’ counsel brushed aside, this Court had occasion to consider the issue of unionization especially under the current constitutional dispensation. I shall quote extensively from these cases just so as to show the stance of this Court in that regard. Thereafter, I shall consider the claimants’ exposition that he invited this Court to follow. The first of the cases considered by this Court was PERESSA v. SSACGOC [2009] 14 NLLR (Pt. 39) 306, a case decided on February 11, 2009 i.e. some 4 years after the 2005 Amendment to the Trade Unions Act was enacted. In that case, this Court held as follows –
The 2005 Trade Unions (Amendment) Act did not repeal, amend or substitute any of the provisions of the Third Schedule Parts A, B and C of the Trade Unions Act Cap. T14 LFN 2004. It was left intact. On the issue of voluntarism, the right of a worker to decide which union to belong to is not absolute but must be exercised within the limits of the Trade Unions Act Cap. T14 LFN 2004. Voluntarism and the freedom to choose which union to belong to is limited to the unions empowered to operate within a clearly defined jurisdictional scope. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU v. ASCSN [2004] 1 NLLR (Pt. 3) 429 and Osawe v. Registrar of Trade Unions, supra. Even the fundamental rights guaranteed in Chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) and (b) provides for derogation from these rights…The right to choose which union to belong to is a qualified right.
58. The second case is NUPENG v. MWUN [2012] 28 NLLR (Pt. 80) 309 NIC, and this Court held thus:
We must state that the dire need to streamline trade unions as a result of proliferation and a chaotic labour regime led to the restructuring of trade unions beginning with the restructuring exercise as contained in the legal notice No. 92 Re-structuring of Trade Unions, official Gazette of the Federal Republic of Nigeria No. 6 of 8th February 1978. This culminated in the restructuring exercise under Decree 4 and 26 of 1996 where trade unions were restructured into named unions listed out and their respective jurisdictional scope provided for, all in Third Schedule Parts A, B and C to the Trade Unions Act, as amended. See Osawe v. Registrar of Trade Unions [1985] 1 NWLR (Pt. 4) 755, a case decided during the 1979 – 1983 democratic dispensation. It is, therefore, an error for counsel to submit that “jurisdictional scope” is not made pursuant to any section and is at best directory and not mandatory. The 2005 Trade Unions Amendment Act did not repeal, amend or substitute any of the provisions of the Third Schedule Parts A, B and C of the Trade Unions Act (TUA) Cap. T14 LFN 2004.
59. Coming closer home to the issues of section 40 of the 1999 Constitution and section 12(4) of the TUA, this Court in NUPENG v. MWUN had this to say:
The appellant’s counsel has argued that by the combined provisions of section 12(4) of the Trade Unions Act and section 40 of the 1999 Constitution, the individual workers of Polmaz Nig. Ltd are at liberty to join any union of their choice which they freely did by applying in writing to join the appellant union. Voluntarism and the freedom to choose which union to belong to is limited to the unions empowered to operate within a clearly defined jurisdictional scope. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU v. ASCSN [2004] 1 NLLR (Pt 3) 429, PERESSA v. SSACGOC [2009] 14 NLLR (Pt. 39) 345, Osawe v. Registrar of Trade Unions (supra). The fundamental rights guaranteed in Chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) and (b) provides for derogation from these rights. The right to choose which union to belong to is a qualified right. We hold that the jurisdictional scope as contained in the Third Schedule Parts A, B and C to the Trade Unions Act is still applicable to all the trade unions and that there is no inconsistency between the Third Schedule Part B as contained in the Trade Unions Act and section 40 of the 1999 Constitution, as amended. The decisions in the cases of Ekong v. Oside (supra), Sea Trucks Nig. Ltd v. Pyne (supra), Anigboro v. Sea Trucks Nig. Ltd (supra) and Osawe v. Registrar of Trade Unions still remain the position of the law today; and good law at that. The decisions have not been affected by the 2005 amendment to the Trade Unions Act neither has any of the decisions been over-turned on appeal. The argument of counsel to the appellant that the 2005 amendment to the TUA gives unfettered freedom to workers to join any union of their choice is an erroneous interpretation of the 2005 Act. If the argument of counsel were correct the restriction placed, for instance, on the registration of a Federation of Trade Unions will not have been the case. By section 35(1)(b) of the Trade Unions Act, as amended by the 2005 Amendment Act, a new Federation of Trade Unions can only be registered if none of its composing trade unions is already a member of another registered Federation of Trade Unions.
60. The third case is NUSDE v. SEWUN [2013] 35 NLLR (Pt. 106) 606 NIC, where the argument advanced by the appellant was that coupled with section 40 of the 1999 Constitution, section 12(4) must be read and interpreted as giving an unfettered freedom to workers to join any union of their choice. In this sense, according to the appellant, the workers who exhibited their intention to join NUSDE from SEWUN must be allowed to do so without any hindrance. Now, the almighty section 12 of the Trade Unions Act, relied upon by the appellant in NUSDE as well as the claimants in the instant case, has as its heading “membership of trade union not to be restricted on discriminatory grounds”. In this context it may be useful to state what the whole section says, which is –
(1) A person who is otherwise eligible for membership of a particular trade union shall not be refused admission to membership of that union by reason only that he is of a particular community, tribe, place of origin, religion or political opinion.
(2) If any person is refused admission to membership of a trade union in contravention of subsection (1) of this section, the union and every official thereof shall be guilty of an offence against this Act.
(3) If any provision in the rules of a trade union is inconsistent with subsection (1) of this section, that provision shall, to the extent of the inconsistency, be void.
(4) Notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimised for refusing to join or remain a member.
61. In considering section 12(4) of the TUA in NUSDE, this is what this Court said:
The first problem with the argument of the appellant is that it is citing section 12(4) out of context. That provision must be understood within the context of the whole section, which is that it is a provision given under the context of “membership of trade union not to be restricted on discriminatory grounds”. It is not a provision that has given an unfettered freedom to workers. In stating that “membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimised for refusing to join or remain a member” section 12(4) merely restates what is already the law.
Section 9(6)(a) and (b) of the Labour Act Cap. L1 LFN 2004 was then given as an example. This Court went on to state thus:
What this means is that before 2005, membership of trade unions was voluntary, incorporating as it were the right to associate or disassociate as the case may be. For junior staff, the rule was that membership was deemed with a right to “opt out”, while for senior staff they were not deemed to be members and so had to voluntarily “opt in”. In other words, junior staff could only “contract out” of trade union membership, while senior staff could only “contract into” to be members. Has the 2005 Amendment to the Trade Unions Act changed these principles? This remains the question.
62. The answer this Court gave to the question posed, still in NUSDE, was this:
The argument of the appellant is that it does. Let us restate the key provision of section 12(4) which is that “membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimised for refusing to join or remain a member”. This provision cannot be understood in isolation; and this leads to the second problem with the argument of the appellant. The provision must be considered alongside other provisions of the Trade Unions Act as well as the 1999 Constitution. To the take the 1999 Constitution, as amended, section 40, in providing for the right to peaceful assembly and association, states that “[e]very person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests”. The qualification here is that the trade union to be formed or joined has to be one “for the protection of [the worker’s] interest”. The case of Sea Trucks (Nig.) Ltd v. Pyne [1999] 6 NWLR (Pt. 607) 514 was quite emphatic in holding that the phrase “for the protection of his interest” does not give a citizen unrestrained freedom to join any trade union as a person proposing to join a trade union must show it protects his interest. And the question that naturally arises in the instant case is: workers who are or had been members of SEWUN, what interest do they have in NUSDE? Neither the appellant nor the IAP showed or indicated what the affected workers’ interest in NUSDE is.
63. This Court still in NUSDE turned to other provisions of the TUA in these words:
We now turn to other provisions of the Trade Unions Act itself. Section 31 deals with admission of further trade unions to membership of registered federation. In subsection (1), it provides that:
Subject to this section, a trade union may become a member of a registered Federation of Trade Unions, whether or not members of the trade union wishing to join the registered Federation of Trade Unions are employed in trades, occupations or industries which are similar to the trades, occupations or industries of the trade unions which formed the registered federation which the trade union seeks to join.
A look at the italicized part of the provision shows that in terms of admission of a trade union to membership of a registered Federation of Trade Unions it does not matter whether or not the members of the joining trade union are employed in trades, occupations or industries which are similar to the trades, occupations or industries of the trade unions which formed the registered federation. The point is that there is a specific provision in this regard where the commonality of interest in terms of the area of economic activity is excluded. There is no such provision throughout the Trade Unions Act regarding membership of trade unions by individual workers.
Secondly, section 35, which deals with powers of the Federation of Trade Unions and application of certain provisions of Part I of the Act, provides in subsection (1)(a) and (b) that a Federation of Trade Unions may be registered by the Registrar if its main objective is to represent the interest of employees and it is made up of 12 or more trade unions none of which shall have been a member of another registered Federation of Trade Unions. Section 35(1)(b) is quite emphatic that a member of a registered Federation of Trade Unions cannot opt out to form another Federation of Trade Unions. Now, if the 2005 Amendment to the Trade Unions Act gave unfettered freedom to workers, would this be the case? We do not think so.
64. Earlier, CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 had considered and held as constitutional the automatic deduction of check-off dues, holding in the process that although recognition of trade unions is mandatory and deduction of check-off dues automatic, each worker has the freedom and liberty to opt out of trade unionism; that this freedom exists certainly cancels out whatever compulsion can be said to exist and so would have rendered the law unconstitutional. This Court went on to hold that freedom to associate under section 40 of the 1999 Constitution certainly includes the freedom to disassociate or not to associate; and sections 5(3) of the Labour Act and 16A of the TUA, now section 17(a) and (b), certainly accommodate this and so are also constitutional.
65. This is the framework within which the claimants’ counsel invited this Court to his exposition. In counsel’s exposition, I need to clarify a thing or two; and this relates to the historical excursion of the claimants’ counsel. First, section 16A of the Trade Unions Act as introduced by Decree 4 of 1996 talks about workers even though it also talked about the Third Schedule to the TUA (not just Part A or B as pointed out by the claimants). Secondly, to the claimants by the amendment occasioned by section 10 of Decree 4 of 1996, Part A of the Third Schedule became the list of 29 re-structured trade unions affiliated with the Central Labour Organization while Part B became the jurisdictional scope of each of the 29 re-structured Trade Unions and Part C, newly introduced, contained the list of Senior Staff and Employers’ Associations. The claimants got it wrong here. Decree 4 of 1996 did not have a Part C; it had only Parts A and B, both dealing with the industrial unions. Part A listed the industrial unions and Part B listed out their respective jurisdictional scopes. Decree 4 was silent as to the Senior Staff and Employers Associations. This led to case law authorities holding that the process of the repeal of a statutory provision must be specific and direct as a statutory provision cannot be repealed by implication. As held in The State v. Governor of Osun State, AG, Osun State and NURTW (Joined by order of Court ex parte: RTEAN [2006] LPELR-11771(CA) “courts will lean against implied repeal of an existing legislation”. It was Decree 1 of 1999 that reintroduced Part C, the Senior Staff and Employers’ Associations, to the Third Schedule of the TUA.
66. The gravamen of the claimants’ exposition is that given the various amendments to the TUA, while the Labour Act was not so amended, subsections (3) and (4) of section 5 of the Labour Act are now in conflict as the two provisions can no longer stand together. This is because section 5(3) provides for automatic check-off dues for all workers eligible to be members of the 1st defendant and section 5(4) of the same Act prohibits automatic check off dues for the same workers who are eligible members of the 1st defendant. The claimants’ counsel continued that section 17 of the TUA is clear and the legal implication of its introduction is that the principle of eligibility which is the basis for automatic deduction of check-off dues and which was then in conflict with the provisions of section 5(4) of the Labour Act was taken care of and the situation was corrected by removing the principle from our laws. Therefore, that the principle of eligibility, as it relates to the deduction of check off dues from the wages and salaries of workers, no longer exists in labour/trade union affairs. That the law, as at today, is that upon registration and recognition, the employer can only make deduction from the wages and salaries of a worker who is a member of any trade union and not a worker eligible to be a member of any of the trade union.
67. Since the crux of the claimants’ counsel’s submission is that subsection (3) is in conflict with subsection (4), both of section 5 of the Labour Act, and as such subsection (4) must be preferred over subsection (3), the question is whether these two subsections are really in conflict with each other in the manner canvassed by the claimants’ counsel. It may thus be necessary to reproduce what these subsections state. Section 5 dealing with deductions including deductions for overpayment of wages provides in subsections (3) and (4) as follows:
(3) Upon the registration and recognition of any of the trade unions specified in Part A of Schedule 3 to the Trade Unions Act, the employer shall
(a) make deductions from the wages of all workers eligible to be members of the union for the purpose of paying contributions to the trade union so recognised; and
(b)pay any sum so deducted to the union,
but a worker may contract out of the system, in writing, and where he has done so, no deductions shall be made from his wages in respect of contributions mentioned in paragraph (a) of this section.
(4) No deductions shall be made from the wages and salaries of persons who are eligible members of any of the trade unions specified in Part B of Schedule 3 to the Trade Unions Act except if the person concerned has accepted, in writing, to make voluntary contributions to the trade union.
68. The assumption of the claimants here (once again the claimants are assuming) is that there is a conflict between subsection (3) and subsection (4) of section 5 of the Labour Act. In section 5(3) of the Labour Act, the word used is “workers”; but in section 5(4), the word used is “person”. Now it may appear that the word person used in section 5(4) is generic as to cover all persons, but it must be noted that it is qualified thus: “persons who are eligible members of any trade unions specified in Part B of the Third Schedule to the Trade Unions Act…” Now, the question is: who are the “persons” eligible to be members of the trade unions specified in Part B of the Third Schedule to the TUA? The answer is “workers” because Part B deals with industrial unions who are essentially trade unions for workers. The term “worker” is defined in section 91 of the Labour Act 2004 to consist of junior staff given that by interpretation, senior staff are excluded. Specifically, persons exercising administrative, executive, technical or professional functions are excluded from the definition of “worker” under section 91 of the Labour Act. See Evans Bros. (Nig.) Publishers Ltd v. Falaiye [2003] 13 NWLR (Pt. 838) 564. The “person” referred to in section 5(4) of the Labour Act being qualified by the phrase “who are eligible members of any trade unions…” can only refer to workers who by definition in both the Labour Act and the TUA are junior staff, and who the TUA states are the category of individuals that are deemed to be members of the industrial unions.
69. Even if, to take the argument of the claimants, that the Part B referred to is not the current Part B but some other, then if that Part B relates to senior staff associations we will still be left with subsection (3) of section 5 which talks of deductions from the wages of workers eligible to be members of the union and who can contract out of the check-off system. Either way, the claimants are making an issue out of nothing. I do not see any conflict between the two subsections. I accordingly hold that subsection (3) of section 5 of the Labour Act has not been impliedly repealed by subsection (4) of same Act as contended by the claimants’ counsel.
70. The Court of Appeal decision in Registered Trustees of Association of Tippers and Quarry Owners of Nig v. Yusuf [2011] LPELR-5024(CA) cited by the claimants is inapplicable as it deals with an association registered under Part C of the Companies and Allied Maters Act (CAMA), not a trade union. By section 43 of the TUA, CAMA is inapplicable to trade unions.
71. It is the alternative submission of the claimants that even if they are deemed to be automatic members of the 1st defendant union, they opted out of it in writing, referring to Exhibits HOA4 and HOA7. Exhibit HOA4 is dated 3rd April 2017 and appeals to the 2nd defendant not to deduct any check-off dues from the salaries of the undersigned. Exhibit HOA7 is dated 12th April 2017 and declared that the undersigned are not members of the 1st defendant and if before then they were regarded as members, they are withdrawing their membership and so no deduction whatsoever should be made from their salaries. Exhibit HOA4 is group-signed by a list of persons. Exhibit HOA7 is signed by Miracle Nwankere (the 2nd claimant in the instant suit) but there is attached a list consisting of names of persons who signed in group. If (and I repeat, if) the claimants or appropriately those who group-signed are junior staff, are Exhibits HOA4 and HOA7 sufficient proof that they individually and in writing opted out of the 2nd defendant? The answer is a resounding NO.
72. In NUPENG v. MWUN [2015] 61 NLLR (Pt. 214) 403 at 465, what came for resolution was whether 23 named persons signing on a single document could be said to have individually and in writing opted out of the trade union in question. This Court distinguished between collective letters and individual letters of withdrawal and held thus: “Collective resignation is not permitted and so is invalid. In the instant case, Exhibit C does not meet the requirement given that it was supposedly signed by the 23 named persons in the attached sheet of paper. In like manner, Exhibit E, an email written on behalf of all the aggrieved workers suffer the same setback of not being for an individual…” As for individual letters as typified by Exhibit D, this Court went on to hold: “Exhibit D, a collection of individual letters meets the requirements of the law”. See also Mr Eyiaromi Christopher Oladele & 4 ors v. The Attorney-General, Lagos State & 5 ors unreported Suit No. NICN/LA/102/2013, the judgment of which was delivered on 6th June 2017. In like manner, in the instant case, the argument of the claimants that especially Exhibit HOA7 is evidence that they individually and in writing opted out of the 1st defendant is not sustainable, assuming that they are junior staff in the first place.
73. For the 1st claimant, there is some evidence (even if not conclusive) that he is a senior staff. At least, the 1st defendant acknowledged that he is a senior staff. If this is correct, then being a senior staff, he is not by law deemed to be member of a trade union until he opts in as an individual and in writing. Since he is not a member of any trade union until he opts in, it will be inappropriate to make any order as claimed in this suit in his regard. In any event, no case was even made in that regard in this suit.
74. On the whole, I see no merit whatsoever in this suit. It fails and is hereby dismissed.
75. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
