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National Industrial Court

CHIEF ANTHONY OKO EWA & 3ORS VS MR. OJEMBA DONATUS & 2ORS

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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 9th May 2018                                      

SUIT NO. NICN/EN/04/2016

 

BETWEEN

 

  1. CHIEF ANTHONY OKO EWA [JP                                 
  2. COMRADE EBUDE SUNDAY [JP]
  3. MR. GABRIEL AKAM                   ]
  4. ODOMU SAMPSON                     ]

[For themselves and on behalf of National Union

of Road Transport Workers [NURTW] Ebonyi State]

    CLAIMANTS

AND

 

  1. MR. OJEMBA DONATUS           ]                                    
  2. MR. GODFREY BABBY               ]                                
  3. MR. GODWIN NWANKWO      ]

[For themselves and on behalf of Road Transport

Employers Association of Nigeria [RTEAN]]

DEFENDANTS

REPRESENTATION:

 

Festus Sunday Chukwu Esq. with Emmanuel Chukwuma Onwosi Esq. and Tobenna Kingsley Nwokwu Esq. for the Claimants

No legal representation for the Defendants

JUDGMENT

 

  1. The Claimants commenced this suit by a writ of summons dated 3rd February 2016 and filed along with it a statement of claim,  list of witnesses,  written depositions of the witnesses, list of documents, copies of documents and seek the following reliefs:

  1. An order of perpetual injunction restraining the Defendants, agents, those collecting authority from the Defendants from trespassing into the motor parks mentioned in paragraph 14 by collecting any money or do anything that will be prejudicial to the activities of the Plaintiffs.

  1. A declaration that the Defendants have no right/locus to collect money from any association that there are not members without as may be directed by a competent authority which must be formal.

  1. N4 million special and aggravated damages
  2. Cost of this suit at N300, 000.

  1. The Defendants were served with the originating processes on 12th February 2016 and several hearing notices but did not enter appearance or file any defence processes. This suit is therefore undefended. After several adjournments, trial commenced on 6th March 2018 and was concluded on 22nd March 2018. The Claimants called two witnesses, the 1st Claimant, Chief Anthony Oko Ewa, CW1 and the 3rd Claimant, Mr. Gabriel Akam, CW2. CW1 adopted his statement on oath dated 3rd February 2016 and tendered three exhibits: exhibit A is a copy of the Constitution of NURTW, exhibit B copies of receipts issued by RTEAN to Claimants’ members and exhibit C is copy of letter from Federal Ministry of Works dated 20th January 2015 to RTEAN. CW2 adopted his statement on oath dated 3rd February 2016. Although the case was adjourned twice for cross examination of the Claimants’ witnesses and hearing notices issued, the Defendants were not available to cross-examine them. The case was thereafter adjourned to 9th April 2018 for adoption of final written addresses. The Claimants’ Counsel, Mr. Onwosi, adopted his final written address dated 29th March 2018 filed on 4th April 2018 as his argument in support of the claim. The case was consequently set down for judgment. On 13th April 2018, the Claimants’ Counsel filed additional final address.

CLAIMANTS’ CASE

  1. The Claimants’ case is that they are representatives of National Union of Road Transport Workers [NURTW], a registered trade union, Ebonyi State chapter and their members are professional drivers. On 19th August 2015, the Defendants invaded Hosanna Park, Old Park, Speara-Indeo Park, Christ Nwankwo Park, Ezzamgbo Park and Effium Park where the Claimants’ members operate and began to collect N100 dues from them. The Claimants challenged them and demanded an explanation for their action. As justification for their action, the Defendants presented exhibit C which is a letter from Federal Ministry of Works captioned FMW/RTEAN Partnership programme. After reading the letter the Claimants discovered that it did not authorize the Defendants to collect dues from the Claimants’ members. As a result, the Claimants advised the drivers not to pay and dislodged the Defendants but they re-grouped on 20th August 2015 and continued to collect the dues whereupon the Claimants reported to the Commissioner of Police. The Commissioner of Police sent Police Officers and arrested some of them. It is the Claimants case that the Defendants threatened to return to the Parks on Monday, 24th August 2015 hence this suit.

 

SUBMISSION ON BEHALF OF THE CLAIMANTS

 

  1. The Claimants raised one issue for determination in the final written address filed by their Counsel, to wit, whether the Plaintiffs have proved their case to be entitled to judgment?

Arguing this issue, learned Counsel explained that the evidence of the Claimants’ witnesses are unchallenged and deemed to be admitted by the Defendants and this entitles the Claimants to judgment. Learned Counsel submitted that the law is that unchallenged evidence is deemed admitted and relied on Akpan v. UBN Plc [2011] 2 NWLR [pt.1231] 399. It was argued that exhibit C speaks for itself and did not authorize the Defendants to collect dues from the Claimants’ members. Continuing, learned Counsel contended that assuming without conceding that the Federal Ministry of Works authorized the Defendants to collect the dues, then exhibit B should bear the names of Federal Ministry of Works and RTEAN and the Defendants must be accompanied with a staff of the Federal Ministry of Works, which was not done in this case. He urged the Court to enter judgment in favour of the Claimants.

 

COURT’S DECISION

  1. I have reviewed the processes filed in this suit and the exhibits tendered at the trial. I have also considered the submissions of learned Counsel for the Claimants. Before going into the merit of the case, I would like to make a few comments. First, learned Counsel appearing in this Court should take pains to read the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. It is wrong to use the forms and processes for the High Court in this Court as was done by learned Counsel for the Claimants. Also, the Claimants’ processes are strewed with grammatical errors raising concern whether learned Counsel read the processes before filing it. As has been observed by Onnoghen, J.S.C. [as he then was] in Emmanuel Okafor & 2 Ors. v. Augustine Nweke & 4 Ors. [2007] 10 NWLR  [pt.1043] 521 at 532:

“Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.”

Secondly, learned Counsel filed additional final address after adoption of the Claimants’ final written address on 9th April 2018. What Counsel should have filed is a list of additional authorities not additional address. Learned Counsel should know that after adoption of final written addresses none of the parties can file any other process unless by leave of Court. The Claimants’ additional final address is incompetent and it is hereby struck out.

  1. Thirdly, the Supreme Court in the case of The Road Transport Employers Association of Nigeria v. The National Union of Road Transport Workers [1992] 2 NWLR [pt.224] 381 attached by learned Counsel for the Claimants did not hold that the Defendants [Appellants in that case] did not have a locus standi to maintain the action as represented by learned Counsel. The appeal was allowed [in favour of the Appellants] and the decision of the Court of Appeal was set aside. Counsel should strive at all times not to mislead the Court. As Achike, J.C.A. [as he then was] cautioned in Co-operative and Commerce Bank [Nigeria] Plc v. Ogochukwu Okpala & Anor. [1997] LPELR-6278[CA] at pages 27-28:

 

“Counsel, while putting across his client’s case is duty bound to do so fearlessly and courageously but he is not permitted to descend to the arena of mischief or calculated attempt to misguide or mislead the court with submission that border or [sic] ridicule and which if erroneously acted upon by the court will precipitate a miscarriage of justice. Counsel, I must reiterate, is an officer of the court and nothing in the determination of any matter by the court in which he serves in that respectable capacity should derail him from comporting himself outside [sic] the four walls of that exalted position.” 

  1. Having said this, I will adopt the lone issue formulated by learned Counsel for the Claimants, with modification, in determination of this suit, to wit, whether the Claimants have proved their case on a balance of probability to be entitled to judgment?

The law is settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] at pages 23-24, Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1 and Rev. Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604[CA] at page 26. It is equally trite that Claimants in an action for a declaration must succeed on the strength of their evidence and not on the admission or default of pleading by the Defendants. See the cases of Dumez Nigeria Limited v. Peter Nwakhoba & Ors. [2008] LPELR-965[SC] at pages 13-14, Chief Mohammed Shittu & Ors. v. Chief James Olawumi & Ors. [2011] LPELR-3955[CA] at pages 33-34 and Sunday Udo Akpan v. Union Bank of Nigeria Plc [2011] 2 NWLR [pt.1231] 399 at 413. Thus, to succeed the Claimants must put forward cogent and credible evidence in support of the reliefs sought.

  1. The Claimant’s first relief is for an order of perpetual injunction restraining the Defendants, agents, those collecting authority from the Defendants from trespassing into the motor parks mentioned in paragraph 14 by collecting any money or do anything [sic] that will be prejudicial to the activities of the Plaintiffs.   It is the law that an order of perpetual injunction has a form of finality and permanence and can only be granted to protect an established right. See the cases of Badagry Petroleum Refinery Limited & Anor. v. Alhaji Rasaki Awayewaserere [2002] LPELR-12174[CA] 26-27, Prince Rasak Yesufu Ogiefo v. HRH Jafaru Isesele 1 & Ors. [2014] LPELR-22333[CA] 59 and Pa Tayo Ojo v. Chief Jerome Akinsanoye [2014] LPELR-22736[CA] at page 60. In Prince Rasak Yesufu Ogiefo v. HRH Jafaru Isesele 1 & Ors. [supra], Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

The burden of proof is on the Claimants to establish on a balance of probability that they are entitled to the right sought to be protected by an order of perpetual injunction. I have read through the pleading and depositions of witnesses and there is nothing therein showing that the Claimants are exclusively entitled to the Parks. The Claimants’ constitution was tendered as exhibit A, but neither in the statement of facts nor in the depositions of witnesses was reference made to any section of exhibit A granting the Claimants exclusive right to the Parks. It is trite that he who asserts must prove by credible evidence, see section 131[1] of the Evidence Act, 2011. It is not enough to dump documents on the Court. There must be oral evidence to bring the documents to life. In MV Courageous Ace & 2Ors. v. Nigerdock Nigeria Plc [2016] LPELR-40223[CA] at pages 20-21, Oseji, JCA, held:

 “It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties to explain their essence in the suit. The court cannot be drawn into the arena of litigation to explain the use or relevance of documents dumped on it.”

 

The only clause in exhibit A that is relevant to the issue before this Court is Article 3 rule 9 under the aims and objectives of the Union. It provides:

“To organize all professional commercial drivers [i.e.] Taxi, township/inter State bus service, trailer and lorry drivers operating in the Local Government owned motor parks who convey passengers, goods and foodstuffs and workers in motor transport corporation, motorcycle [okada], and tricycle operators throughout the Federation of Nigeria and including Abuja, the Federal Capital Territory.”

In my opinion, this is a statement of intention. It is a declaration of the goal of the Union. It is trite that the constitution of NURTW is an internal document binding on the members. It does not and cannot regulate the affairs of non-members of the Union. See Nigeria Civil Service Union & Anor. v. O. G. Essien & Anor. [1985] 3 NWLR [pt.12] 306. It cannot be the basis for a declaration of right in favour of the Claimants against the Defendants. The Claimants must do more. They must establish that they have exclusive right to the motor parks. This becomes necessary as Rule 9 refers to “Local Government owned motor parks”. If the motor parks are owned by the Local Government, then, in my humble view, there should be an agreement between the Local Government and the Union conferring exclusive right to the Parks on the Claimants’ Union. There is no such document before this Court and the Local Governments, whose the motor parks are were not made parties to the action. In J. Sunkanmi Dairo & Ors. v. The Registered Trustees of the Anglican Church [2002] LPELR-11624[CA] at page 29, it was held that an order of perpetual injunction is never granted at the instance of a limited owner when the owner of the absolute interest is not a party to the suit. Furthermore, the grant of the relief of perpetual injunction is a consequential order which should flow from the declaratory order sought and granted by the Court. The essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suits in respect of every repeated infringement. See the case of Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. [2012] LPELR-9349[SC] at page 65. There is no prayer for declaration of right to the motor parks. The declaratory relief sought in prayer 2 does not relate to the motor parks listed in paragraph 14. In the circumstance, I find and hold that the Claimants have not proved relief 1 and it is hereby refused.

 

  1. The second relief is a declaration that the Defendants have no right/locus to collect money from any association that there are not members [sic] without as may be directed by a competent authority which must be formal. Indisputably, the sphere of influence of a trade union is limited to its members. A trade union cannot regulate the affairs of another Union unless by affiliation. By the combined effect of Articles 3 and 29 of exhibit A, it is the responsibility of the Claimants’ Union to organize its members engaged in commercial transportation and to collect dues and levies from them. The Defendants cannot collect dues and levies from the Claimants’ members. To do so, they must be duly authorized by the Claimants’ Union. Exhibit B shows that the Defendants sought to collect dues from members of the Claimants’ Union without due authorization. In the circumstance, I find relief two proved and it is granted. The third relief is for N4million special and aggravated damages. Special damages are not such that the law will presume. It must be specifically pleaded and strictly proved. See the cases of Stephenson Standard Company Limited v. Yifa Nigeria Limited [2012] LPELR-9707[CA] at pages 20-21 and Ecobank Plc v. Alhaji Rabiu Mohammed [2014] LPELR-23990[CA] at pages 20-21. There is nothing in the Claimants’ pleading and depositions of the witnesses to show the damage suffered or how they arrived at the sum of N4 million. This Court is not a Father Christmas that dishes out gifts to every suppliant. I find and hold that this claim has not been proved and it is hereby dismissed. The fourth relief is N300, 000 cost of the action. Costs follow events. See Union Bank of Nigeria Plc v. Charles Olusola Toyinbo [2008] LPELR-5056[CA] page 67. However, the Claimants have not proved their claims on a balance of probability. Order 55 rule 1 National Industrial Court [Civil Procedure] Rules, 2017, makes award of costs discretionary. I am not persuaded that the Claimants in the circumstances of this case are entitled to costs. Accordingly, I make no order as to costs.

  1. On the whole, the Claimants’ case succeeds in part. For the avoidance of doubt, reliefs 1, 3 and 4 fail and are hereby dismissed. Relief 2 is granted. The Defendants have no right to collect dues from non-members of their association unless duly authorized to do so. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

9/5/18

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