COMRADE SANUSI UMAR & 3 ORS -VS- IBRAHIM GARBA & 11 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP: HON. JUSTICE LAWAL MANI, PhD.

DATE: 25^th January, 2018 SUIT NO: NICN/KN/14/2016

BETWEEN:

COMRADE SANUSI UMAR
ALH. ARZIKA UMAR ISAH
COMR. BELLO BAWA ARGUNGU CLAIMANTS

(FOR AND ON BEHALF OF THE NIGERIAN UNION OF

TEACHERS, KEBBI STATE

THE NIGERIAN UNION OF TEACHERS

AND

IBRAHIM GARBA
MOHAMMED AWAL ABUBAKAR
KUDU ABUBAKAR
SHEHU BAGUDU
MAINASARA DAN-ABASHE
MUHAMMED SANI MATSERI
ISAH ADAMU GULMA DEFENDANTS

(FOR THEMSELVES AND ON BEHALF OFMEMBERS OF THE

CONFERENCE OFSECONDARY SCHOOL TUTORS

IN KEBBI STATE

INCORPORATED TRUSTEE OF CONFERENCE OF

SECONDARY SCHOOL TUTORS

ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, KEBBI STATE
MINISTRY OF EDUCATION, KEBBI SATE DEFENDANTS
MINISTRY OF FINANCE, KEBBI STATE
ACCOUNTANT-GENERAL, KEBBI STATE

REPRESENTATIONS:

P.O. Oshoture Esq.………………………………………………..for the claimants

Garba Abubakar Shehu, Esq ……………………for the 1^st– 8^th defendants

Bagudu U. Abubakar, Esq…………………….. for the 9^th – 12^th defendants

JUDGMENT

INTRODUCTION AND CLAIMS

The claimants approached this court via an Originating Summons dated 9^th March, 2016 sought the following reliefs:

A declaration that the Academic Staff Union of Secondary Schools, Kebbi State (ASUSS) formerly called Conference of secondary School Tutors, Kebbi State is not a Registered Trade Union under the Trade Union Laws in Nigeria.
A declaration that the Academic Staff Union of Secondary Schools Kebbi State, not being registered Trade Union is not eligible to enjoy privileges of recognition by Kebbi State Government and enjoyment of check off dues from its members and other benefits and privileges of registration and recognition.
A declaration that the action of the Academic Staff Union of Secondary Schools, Kebbi State of mobilizing, cajoling and inducing Secondary School Teachers in Kebbi State to contract out of Nigeria Union of Teachers Kebbi State wing en masse is illegal.
An order of injunction restraining the 1^st -8^th defendants from arrogating to themselves and the members of the ASSUS the status and privileges of a Registered Trade Union and enjoyment of all benefits and privileges of a registered and recognized Trade Union.
An order of injunction restraining the 1^st – 8^th defendants from parading themselves as a Registered Trade Union and from mobilizing, cajoling and/or inducing Secondary School Teachers in Kebbi State to contract out of the Nigerian Union of Teachers, Kebbi State.
An order of injunction restraining the 9^th – 13^th defendant from according the 1^st – 8^th defendants or ASSUS Kebbi State any form of recognition or privileges of a Registered Trade Union.
An order of Honourable Court on the 9^th – 13^th defendants to release forthwith to the claimant all monies deducted as check off dues from salaries of Secondary School Teachers in Kebbi State and kept in a suspense account since September, 2015.
An order of the Honourable Court on the 9^th – 13^th defendants to remit monthly and in perpetuity, all monies deducted as check off dues from the salaries of Secondary School Teachers in Kebbi State, to the claimants and the same shall not be kept in suspense account henceforth.
CASE OF THE CLAIMANTS

By their affidavit sworn to by Mal. Isah Arzika of Gesse phase 1, Birnin Kebbi, the case of the claimants is that since its registration as a trade union, the 4^th claimant, Nigerian Union of Teachers has been performing its statutory duties of taking care of the welfare of its members and protecting its interest in labour and employment matters. That sometime in 2001 the defendants founded an association known as Academic Staff Union of secondary Schools and got it registered under the Companies and Allied Matters Act. That since the said registration ASSUS, the 8^th defendant has assumed the status and powers of a Trade Union in Kebbi State. That sometime in 2006, ASSUS/COSST attempted to register as a trade union but their application was denied because there already exists a Trade Union sufficiently representing the interest of the class of workers it seeks to represent.

That sometime in 2007 the defendant authored a mandate form purporting to state that some secondary school teachers have disengaged from the claimant and are now members of ASSUS. That pursuant to that the defendants wrote to the State Government requesting for a deduction of N500 from the salaries of their members, a request which the Government obliged them. That pursuant to that letter, the Permanent Secretary, establishment, Pension and Training wrote to the Ministry of Finance the 11^th defendant to stop payment of check-off dues deducted from the salaries of secondary school teachers to the 4^th claimant. Sequel to this development, the 11^th defendant has been remitting check-off dues to the 1^st – 8^th defendants since September, 2015 to the detriment of the claimants. That the continuous deduction and payment of the claimants check-off dues to the 1^st – 8^th defendants is hampering the smooth running of the 4^th claimant. That inspite of these representation and series of warning and advice given to ASSUS.COSST, the Kebbi State Branch of the Association still engages itself in Trade Union activities pursuing the State Government to allow it to enjoy check-off dues of its members. That unless the defendants are restrained by the court, they will continue to parade themselves as members of a Trade Union and might be recognized as such by the Kebbi State Government.

CLAIMANT’S WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

In their written address in support of originating summons, claimants formulated the following issues for determination:

Whether the Association called Conference of Secondary Tutors (COSST) otherwise called Academic Staff Union of Secondary Schools (ASSUS) is a body duly registered under the Trade Union Act, 1973 as amended.
If the answer to issue 1 above is in the negative, whether the Conference of Secondary School Tutors (COSST) otherwise called Academic Staff Union of Secondary Schools (ASSUS) has the power to enjoy the benefits and privileges of registration and recognition by the Kebbi State Government including check-off dues collected from the its members.
Whether having regard to the Labour Act, the Trade Union Act of 1973 as amended and Section 40 of the 1997 Constitution of the Federal Republic of Nigeria, the Conference of Secondary School Tutors (COSST) otherwise known as the Academic Staff Union of Secondary Schools (ASSUS) can mobilize and represent Secondary School Teachers to contract out of the 4^th claimant en masse.

On issue 1, learned counsel to the claimants submitted that the answer on issue 1 ought to be in the negative as COSST/ASSUS is only registered under the Companies and Allied Matters Act and not clothed with the status of a Trade Union since it was not registered in accordance with the provisions of the Trade Unions Act 1973 as amended and have its name included in the list of registered Trade Unions Act 1973, relying Section 45 of the Trade Unions Act and the case of REGISTERED TRUSTEES OF THE FORUM OF FEDERAL HEALTH INSTITUTIONS, NURSES AND MIDWIVES (FHINNAN) V. NATIONAL ASOCIATION OF NIGERIAN NURSES AND MIDWIVES (UNREPORTED) SUIT NO. NICN/ABJ/20/2011 delivered on 5^th June, 2012.

Learned counsel also posited that the 1^st to 7^th defendants are permitted to associate freely under Section 40 of the Constitution, once the association wants to transmute to become a Trade Union under the same registration, it automatically becomes an illegal body. This is because all citizens are free to associate with whomsoever they wish to associate with; the proper registration according to the law is demanded, referring the court to REGISTERED TRUSTEES OF NACHPN V. M & HNVN (2008) NWLR (PT. 1072) 575 and MOHAMMED RAWU MODU & 3 ORS V. ABDULLAHI M. YANKO & 5 ORS, SUIT NO. NICN/JOS/18/2012 decided on 2^nd October, 2013.

With regard to issue 2, learned counsel to the claimants submitted that the answer is negative. He submitted that the 1^st – 8^th defendants having failed to get their association (ASSUS) registered in accordance with the provisions of Sections 3, 4 and 5 of the Trade Unions Act, 1973 as amended, is not entitled to be accorded any recognition by the Kebbi State Government; adding that the 1^st – 8^th defendants are also not entitled to enjoy all the benefits of registration and recognition by the Government. In the same token the 1^st – 8^th defendants are not also qualified to receive check-off dues deducted from salaries of their members, citing the provisions of Section 5(3) of the Labour Act as amended and the case of UDO V. OHMB (1990)4 NWLR (PT. 147) 52 and Section 17 of the trade Unions Act 1973 as amended.

Learned counsel continued that once a trade union has been so registered recognition and payment of check off dues by an employer is automatic. However, any unregistered and recognized Trade Union, relying on Section 2(1) and (3) of the Trade Unions Act. That from the wording of Section 2 above, the action of the 1^st – 8^th defendants amounts to illegality this is became the approval by the Minister for Labour and Productivity could not be used to register ASSUS of as a court injunction, yet it carries on and projects itself a registered trade union and collects check-off dues, rights which ought to be enjoyed only by a registered and recognized Trade Union, citing the case of MUHAMMED K. MOOH & 3 ORS V. ABDULLAHI M. YANKO (SUPRA).

On issue 3, i.e whether from the combined reading of section 5(3) of the Labour Act, Section 2 of the Trade Union Amendment Act 2005 and Section 40 of the 1999 Constitution, the 1^st – 8^th defendants can mobilize, induce, cajole and represent the Secondary School Teachers to contract out of the NUT en masse without first being duly registered as a trade Union under the Trade Unions Act as amended. Counsel submitted that the right to represent a worker is derived from being registered; the right to recognition is automatic. However, the same Trade Union Act forbids an association like the defendants from doing any act in furtherance of the object for which they were formed without first being duly registered under the Act. He further submitted that the 1^st – 8^th defendants not being registered as a Trade Union, lacks the capacity to represent the Secondary School Teachers where there already exists a trade union sufficiently representing their interest. He also contended that the power to contract out of a union under Section 5 (3) (b) of Labour Act is donated to an individual and not a group; relying on SECTION 5 (3) (B) OF THE LABOUR ACT AND CORPORATE AFFAIRS COMMISSION V. AMALGAMATED UNIONS OF PUBLIC CORPORATIONS, CIVIL SERVICE, TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES, SUIT NO. NIC/1/2003 DELIVERED ON 28^TH JANUARY 2004.

1^ST – 8^TH DEFENDANT’S COUNTER AFFIDAVIT

In opposition to the Originating Summons the 1^st – 8^th defendants filed a counter affidavit dated 7^th December, 2006. The defendants denied paragraph 1, 6, 7, 8, 9, 11, 14, 15, 17, 18, 20, 21 and 23 of the claimants’ affidavit. That there is no association known as Academic Staff Union of Secondary Schools registered under CAMA. That COSST has never engaged the state on Trade Union matters but only on welfare activities of its members with their consent. That COSST has never applied for registration as a trade union. That after refusal to register Academic Staff Union of Secondary Schools dated 5^th October, 2007; the Minister of Labour has reversed that stand by giving his approval to register Academic Staff Union of Secondary Schools. That the secondary teachers in Kebbi State have individually a written letter of withdrawal to the Executive secretaries of the then Secondary School Management Board and STEB, who are the employers of the secondary school teachers in Kebbi State.

1^st – 8^th defendants averred also that they requested for the subscription of their members only, not check-off dues based on the Exhibit NUT F and NUT E. that the monthly subscription is only for the registration of their prospective union stalled by litigation. That Exhibit NUT D was written as a result of initial individual letters written by each and every secondary school teacher in Kebbi State to Executive Secretaries and STEB indicating their individual resolve to disengage from the 4^th claimant. That the defendants have never remitted any money to the 1^st – 8^th defendants as check-off dues since December, 2015. That the ASSUS and/or 8^th defendant Kebbi State branch has never engaged itself in any trade union activities or pressurize Kebbi State Government to allow it to enjoy check-off dues.

That the 9^th, 10^th, 11^th and 12^th defendants are public officers. That any act done against them for the discharge of their official duties must be commenced within 3 months. That the claimants’ action is status barred.

1^ST – 8^TH DEFENDANTS’ WRITTEN ADDRESS

The 1^st – 8^th defendants filed their written address dated 2^nd day of December, 2016 in sufficient opposition to the Originating Summons.

The 1^st – 8^th defendants submitted first that Exhibit NUT D, NUT E and NUT F attached to the affidavit in support of the issues formulated did not capture the real issues in dispute between the parties. That the claimants did not attach the certificate of Registration of ASSUS by C.A.C. similarly, the claimant did not attach a request by ASSUS for collection of check-off dues or approval of the 9^th to 12^th defendants allowing ASSUS to collect check-off dues. Similarly, the claimants did not attach the request by COSST demanding deduction for check-off dues.

Similarly, from the content of Exhibit NUT B and NUT F it is clear that the issue for determination No. 1 did not arise because even the ASSUS itself never claimed it is registered Trade Union and the claimant did not state the union activities the ASSUS is undertaking.

For the reasons, the 1^st to 8^th defendants formulated the following 4 issues for determination:

Whether the ASSUS is entitled to collect subscriptions from its members for the purpose of setting it registered pursuant to the mandate given to it by its members.
Whether the 9^th – 12^th defendants were right to recognize the ASSUS and individual members of cost who signified their intention in writing to contract out of their salaries for the purpose of remitting it to the NUT, not being members of the 4^th claimant.
Whether the claimant action is caught up by the Kebbi State Public Officers (Protection) Law and therefore robs this Honourable Court of its jurisdiction to entertain same.
Whether the Honourable Court can proceed to determine the claimants’ action against the 1^st – 8^th defendants against the where it found it has no jurisdiction on the 9^th – 12^th defendants.

On issue 3, 1^st – 8^th claimants’ counsel submitted that by the combined effect of paragraph 16 and 18 of the claimants’ affidavit in support, the 9^th – 12^th defendants obliged the request of the 1^st – 8^th defendants since September, 2015. But the claimants folded their arm and went to sleep until 1^st March 2016 when they filed their originating Summons challenging the defendants’ action after 7 months. Counsel further submitted that the claimants right to action having accrued in August 2015 when they were copied and the deduction stopped in September 2015 while subscription commenced their right of action is empty and cannot be entertained for being brought outside the limited period allowed by law. There acts are within their duties as public officers. Therefore, the claimant can file their action against 9^th – 12^th defendants with 3 months from the date of the stoppage of the deduction of check-off dues.

On issue 4, 1^st – 8^th defendants contended that the claim against the defendants is joint considering the reliefs sought. Counsel asked the question: what will be the case of other defendants? That the answer is simple, as it is settled that where there is a joint cause of action against certain defendants as in this case the discharge of one automatically releases other defendants relying on KADZE INT. LTD V. KANO TANNERY CO. LTD (2004) 12 WRN 131 AT 161.

With regard to issue 4, Learned Counsel submitted that the ASSUS though not registered as a Trade Union applies on Exhibit NUT D, but is pursuing registration as all preliminary steps have been completed as the Minister has approved it registration, if not for an interim order restraining the Registrar of Trade Union from registering it.

Learned Counsel cited Section 2(1) of the Trade Union Act 1973 permitting collection of subscription or dues which may be necessary for the purpose of setting the Union registered. It is therefore clear that what the law prohibits is the collection of check-off dues not subscription because check-off dues is only payable to a trade Union duly registered and is access ad valerem. Whereas subscription is a flat rate contribution agreed by members.

On issue 4, Learned Counsel submitted that from the content of Exhibit NUT E it is clear that it is not the ASSUS that instigated or cajoled Secondary Schools Tutors to contract out of the 4^th claimant rather they individually wrote to their various employers since 2005 that they have contracted out of the claimant. Counsel submitted further that the power of NUT to collect check-off dues is only limited to its members, relying on NIGERIA UNION OF TEACHERS V. COMRADE M. AMIGALA (UNREPORTED) SUIT NO. NICN/EN/88/2012 delivered on 2^nd December, 2014.

Counsel further submitted that there is no time the 1^st – 8^th defendants and all members of 8^th defendants accepted in writing to make voluntary contribution to the claimants but the 10^th – 12^th defendants have been deducting their wages and have been paying to the claimants without their written consent as provided by S. 5(4) of the Labour Act which is illegal and unlawful.

6 CLAIMANTS FURTHER AND BETTER AFFIDAVIT IN ANSWER TO THE 1^ST – 12^TH DEFENDANTS COUNTER AFFIDAVIT

The claimants also filed a further and better Counter Affidavit 10^th May, 2017 in answer to the 1^st – 8^th defendants. It was duly sworn to by one Arzika Abubakar Isah of Geese phase 1, Birnin Kebbi.

They averred that contrary to the averments of the defendants, failure to attach the signature page of Exhibit NUT E was not deliberate but an oversight and the complete document has now been marked “NUT E1”. That NUT “E” was made during the pendency of Suit No. NICN/KN/14/2015 filed by 1^st – 8^th defendants before this court. That since Exhibit NUT “EI” was issued by the 1^st – 8^th defendants lost in interest in the prosecution of Suit No. NICN/KN/14/2015 pending before this court.

They averred further that COSST/ASSUS has been usurping the function of the 1^st claimant in Kebbi State and indeed filed a suit n this court demanding for a right of all Secondary Schools Teachers to withdraw from NUT and stop remittance of their check-off dues to the 1^st claimant. That COSST/ASSUS i.e 1^st – 8^th defendants collected check-off dues pursuant to an adjoin they obtained from the Kebbi State High Court from 2007 to October 2013 when the Kebbi State Government stopped paying them the check-off dues based on the advice from the then Solicitor-General of Kebbi State. That in 2014, the 1^st – 8^th defendants unsuccessfully prosecuted the 1^st claimant, the Hon. Commissioner of Education and the Attorney-General of Kebbi State in a court proceeding in suit No. KB/HC/M.89/2014 because of check-off dues.

Learned Counsel further submitted that Suit No. NICN/KN/14 is all about the check-off dues which was not paid to the 1^st to 8^th defendants between September 2013 and January 2015. That Exhibits AB1-30 were never in existence until recently and was made purposely to answer this claim that Alh. Bello Ibrahim who purportedly certified Exhibits AB2, 3, 4, 5, 6, 7, 9, 11, 13, 15, 17, 18, 20, 23, 25, 26 and 28 is not the custodian of these documents and is not the appropriate person to certify same. That contrary to paragraph 11 and 12 of the Counter Affidavit of 1^st – 8^th defendants, COSST/ASSUS has obtained a judgment and were collecting check-off dues at the time Exhibit NUT C-3 was made. That the activities of COSST/ASSUS in Kebbi State has caused and is causing serious upheaval in the affairs and smooth running of the 4^th claimant, that up to this moment, the 9^th -12^th defendants have continued to deprive the 4^th claimant of its legitimate check-off dues from the salaries of secondary school teachers in Kebbi State on a monthly basis. That the continued deprivation of fund to the 4^th claimant has made it difficult for it to maintain its working and retired staff.

Claimant further submitted that Secondary School Teachers are ably represented and their Kebbi State has a representative in NUT. That it is in the interest of justice to grant this application.

CLAIMANTS REPLY ON POINTS OF LAW TO 1^ST – 8^TH DEFENDANTS’ COUNTER AFFIDAVIT AND WRITTEN ADDRESS.

Claimants further filed a reply on points of Law to 1^st – 8^th defendants’ Counter Affidavit and Written Address dated 9^th May, 2017.

They averred that the law is elementary and requires no citation that the right to collect check-off dues is an incidence of due registration of an association as a trade union. It is also abundantly clear that the 1^st – 8^th defendants are not a registered trade union. That the action of the defendant amounts to performing the function of a registered trade union.

Counsel also argued that from the evidence before the court Exhibits AB1-30 and AC1-70 attached to the Counter Affidavit of the 1^st – 8^th defendants were not in custody of the purported certifying authorities and the said exhibits are worthless in this proceeding because by the provision of Section 105 of the Evidence Act 2011, only duly certified copies of public documents are admissible, relying on the case of KERRI V. ERUMAKA BROTHERS & ORS (2013) LPLERL (CA) and OKIRIN V. JAGUN (1988) 1 NSCC AT 57.

Learned Counsel further submitted that this court cannot countenance Exhibits AB1-30 and AC!-20 because they run foul of the due process as prescribed under the CIVIL SERVICE RULES, 2012.

8 REPLY TO 9^TH – 12^TH DEFENDANTS’ COUNTER AFFIDAVIT AND WRITTEN ADDRESS.

In the above reply, claimants submitted that the entire affidavit of the 9^th -12^th defendants is the personal ground as related by him to the deponent. The law is trite that one cannot be a counsel and a witness at the same time in a matter before the court.

Counsel also contended that the law is trite that an affidavit shall only contain a Statement of Facts and shall not contain extraneous matters by way of objection or prayer, legal argument referring to Section 115 (1) and (2) of evidence Act 2011. Against this background, Counsel submitted that paragraphs 4 (f), (g), (h), (i), (m), (n), (o), (p), (r), (s) and (t) of the 9^th -12^th defendants counter affidavit in that they contain extraneous matter in form of legal arguments, objections and conclusions.

Counsel further argued that the issue of whether or not the 1^st – 7^th defendants are members of the 4^th claimants is pending before this Honourable Court in Suit No. NICN/KN/14/2015. Accordingly, it is inappropriate and sub-judice for counsel to be canvassing the same issues in this case, urging the court to discountenance paragraphs 4(o), (p) and (r) of the 9^th – 12^th defendants’ affidavit. Counsel further contended that the opinion expressed in the aforementioned sub-paragraphs of the 9^th – 12^th defendants’ counter affidavit and decide their entire affidavit is not the position of the 9^th – 10^th defendants in this case; they are the expressions of the opinion of the personal opinion of their comment. When he postulated that the 1^st to 9^th defendants are not members of the 4^th claimant.

COURT’S DECISION

I have perused all the processes filed in this case and attentively listened to the presentations and arguments of the Learned Counsel on both sides. In my humble opinion, the issues for determination are 4 namely:

Whether the claimants’ action is caught up by the Kebbi State Public Officers (Protection) Law and therefore robs this court of the jurisdiction to entertain same.
Whether having regards to sections 2, 3, 5, 45 and 17 of the Trade Unions Act, cap 14 LFN 2004, the Conference of Secondary School Tutors otherwise known as Academic Staff Union of Teachers, Kebbi State Chapter is registered as a union under the Trade Unions Act 1973, as amended.
Whether the Academic Staff Union of Secondary School Tutors, Kebbi State, otherwise known as Conference of Secondary School Tutors, Kebbi State, can enjoy benefits of recognition as a trade union and collection of check-off dues and subscriptions from members.
Whether by virtue of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, Section 5(3) of the Labour Act, Section 25 of the Trade Unions Act, Section 45 of the Trade Unions Act, Members of the Academic Staff Union of Secondary School Teachers (ASSUS) otherwise known as Conference of Secondary School Teachers can contract out of the 1^st claimant and join or not join any union of their choice.

On issue 1, that is whether this suit is statute barred, Counsel to the defendants contended that by the combined effect of paragraph 16 and 18 of the claimants Affidavit in support, the 9^th to 12^th defendants obliged the request of the 1^st to 8^th defendants since 2015. But the claimants folded their arms and went to sleep until March 2016 when they filed this Originating Summons challenging the defendants after about 7 months. Defendant further submitted that the right to action having accrued in August 2015when they were copied and the deduction stopped in September 2015 while deduction of N500 subscription commenced the claimant right of action is empty and cannot be entertained for being brought outside the limited period for being any action against the Public Officers in Kebbi State. Therefore the claimant can file their action against the 9^th to 12^th defendants within 3 months from the date of the stoppage of deduction of check-off dues and the commencement of monthly subscriptions in favour of the leadership of Academic Staff Union of Secondary Schools.

In their response, the claimants countered that even though the general function of the law is that where it is found that the date pleaded by the plaintiff in his writ of Summons and Statement of Claim with respect to sue accrued is beyond the limitation period of three months under POPA the action is statute barred and thus incompetent, this legal position is not absolute as it admits some exceptions. In this regard, the law is trite that the Public Officers (Protection) Act cannot avail an officer who acted outside the scope of his authority. Claimants then stated that Exhibit NUT E cannot be protected by POPA or any other statute of limitation premising their stand on three issues.

Firstly, claimants argued that the issues determined in Exhibit NUT E are sub-judice and as such it is a usurpation of the judicial powers of the Honourable court. Secondly, claimants reasoned that the Public Officers Protection Law cannot avail the defendants in this case because the injury or damage occasioned in Exhibit NUT E is of a continuous nature referring to paragraphs 20 and 21 of the affidavit in support and paragraph 25 of the further and better affidavit where the claimants have averred that the 9^th – 12^th defendants have continued to deprive them of their legitimate check-off dues from the salaries of secondary school teachers in Kebbi State on a monthly basis. Thirdly, claimants further submitted that the defendants cannot rely on POPA to perpetrate or validate NUT E before the court.

The issue of statute- barred is a fundamental one because it has strong bearing on the jurisdiction of the court. In fact, if is raised, can rob the court of jurisdiction. And jurisdiction can be raised at any stage of the proceedings. Jurisdiction takes precedence in adjudication; hence it must be given preference by the court tackling it first before taking any further step. See OFIA V. EJIM (2006) 11 NWLR (PT. 992) 652 AT 663 and BOGHAN V. DIWHERE (2005) 16 NWLR (PT. 951) 274 AT 304. But saying the issue of jurisdiction should be resolved first, however does not mean that it should be resolved separately. It can be taken along with other arguments on merits of the case. The important thing is that the court should first express its view on jurisdiction before considering the merit.

It is trite that the ingredients and determinants of jurisdiction include the plaintiff’s Statement of Claim and the Plaintiff’s writ of Summons. A court does not chicken out in searching for whether or not it has jurisdiction because a Statement of Claim is not filed. More often than not, it may be that the only process before a court is the Writ of Summons. In such a case a Court is enjoined to browse through the Writ of Summons to fathom out if it has the jurisdiction to hear the matter. See IKERE V. EFJIERODE and A-G, KWARA STATE V. OKWOLE (1993) NWLR (PT. 272) 645 AT 675.

Section 2 of the Public Officers (Protection) Law of Kebbi State is in pari material with Section 2 of the Public Officer (Protection) Act provides:

Where any action, prosecution or other proceedings is commenced against any person or any act done in pursuance or execution or intended execution of any law or of any alleged neglect or any default in the execution of any such law, duty or authority the following provision shall have effect:

(a) The action, prosecution or proceeding shall not lie or be institutes unless it is commenced within three months next after the act, neglect or default complained off or in the case of a continuance of damage or injury, within the three months next after the ceasing thereof.

Exhibit NUT E1 is also reproduced below for further clarity on some of the key issues raised: The letter reach as follows:

The Permanent Secretary,

Ministry of Finance,

Birnin Kebbi.

DISENGAGEMENT OF MEMBERS OF ACADEMIC STAFF UNION OF SECONDARY SCHOOL (ASSUS) FROM NIGERIAN UNION OF TEACHERS (NUT) AND REQUEST FOR PAYMENT OF WELFARE CONTRIBUTION/SUBSCRIPTION

I have been directed to intimate you that we have received a request from representative of Academic Staff Union of Secondary School (ASSUS) indicating individual commitment in writing of their disengagement from the Nigeria Union of Teachers (NUT) or any union as guaranteed by section 40 of the 1999 Constitution as amended and sections 2 (1) and 12 (4) of the Trade Union Amended Act 2005.

Our consultations with the Ministry of Justice for legal advice indicates as per letter attached that the association is free to disengage from the Nigerian Union of Teachers (NUT) and could also approach the State Government for assistance, to deduct, from source, any welfare contribution/subscription from its members. Consequently, you may wish to proceed with the deduction of the N500 welfare contribution as per the list of members enclosed. It is pertinent to note that these members have ceased to belong to NUT and hence their check-off dues should no longer be remitted to the NUT.

While expecting your necessary action in this matter please accept the Permanent Secretary’s highest regards at all times.

Idris Abdullahi Sauwa

Director Labour & Productivity

For: Permanent Secretary

From the above instruments the first leg of the Public Officers (Protection) Act of Kebbi State has stipulated that a period of three months within which a party who alleges that his civil rights and obligations are stamped on should approach the court for redress. If such a wronged party fails or neglects to institute an action on schedule, as permitted by that enactment, his suit becomes stale and statute barred. Such a party is taken to be an indolent who has slept over his rights. His allowing grass to grow under statutory period makes the court to lose the jurisdiction to entertain his claim. The Supreme Court approved this position of the law in the case of AJAYI V. MILITARY ADMINISTRATOR OF ONDO STATE (1993) 5 NWLR (PT. 504) 237 AT 254 Where ESN JSC stated:

The issue of whether or not an action has been statute-barred is one touching on jurisdiction of court for once an action has been found to be statute-barred, although a plaintiff may still have his cause of action, his right of action, that is, legal right to prosecute that action has been taken away by statute. In that circumstance no court has the jurisdiction to entertain his action.

In the instant case, the defendants argued that from the date stated in Exhibit E exhibited in paragraph 17, and paragraph 16 and 18 of the affidavit in support the date when the Originating Summons was filed before this court, i.e on the 1^st day of March 2016, is almost 7 months which is clearly outside the limited 3 months prescribed by the Public Officers Limitation Law of Kebbi State and the effect is that the court lacks the jurisdiction to entertain same.

However, it is trite that the Public Officers (Protection) Act is not absolute as there are exceptions to the Limitation Law, that the limitation law is riddled with exceptions.

Such exceptions have been enumerated in the case of AJAO V. PERMANENT SECRETARY, MINISTRY OF ECONOMIC PLANNING, BUDGET AND CIVIL SERVICE PENSIONS OFFICE AND ANOR (2016) LPERLR 41407 CA as follows:

Consequently, the Public Officers Protection Law does not provide a blanket protection for public officers. Thus the apex court has recognized that there are certain exceptions provided for under the law. These exceptions are (a) Instance of Continuance of damage or injury. (b) Situation where the Public officer acted outside the bounds of his office or statutory or constitutional duty. (c) Cases of recovery of land; (d) breaches of contract, (e) claims for work and labour done; and (f) good faith.

In the instance case, the claimants contended that the law does not apply in cases of continuous injury or damage. Of course, this position of the law is supported by the provision of the second leg of the law itself which provides thus:

(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury within the three months next after the ceasing thereof.

Claimants added that the Public Officers Protection Law cannot avail the defendants in this case because the injury or damage occasioned by exhibit NUT E is of a continue nature. It is also noteworthy that paragraph 20 and 21 of the affidavit in support and paragraph 25 of the further and better affidavit, the claimants have averred that the 9^th – 12^th defendants have continued to deprive them of their legitimate check-off dues from the salaries of secondary school teachers in Kebbi State. In the case of A.G. RIVERS STATE V. A.G. BAYELSA STATE (SUPRA) the Supreme Court enthused as follows:

In case of continuous change on injury the Act permits actions to be brought on the cessation thereof outside three months. From the annexed Statement of Claim and as equally deposed to in his counter affidavit, the plaintiff averred that he continued to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such situation of continuance of damage or injury which has not ceased, the defence is not exercisable to the 1^st defendant.

Flowing from the above, I am on all fours with the claimants that the defence of Public Officers Protection Law of Kebbi State does not avail the 9^th to 12^th defendants as the injury or damage occasioned by Exhibit NUT E is continuous in nature. The 4^th claimant is a trade union and there is no evidence before the court that the objectionable action of the 9^th – 12^th defendants has abated. Consequently, this court has the jurisdiction to entertain this suit and I find and so hold.

I also agree with the claimants’ position that the author of Exhibit NUT E acted outside the colour of his office or beyond his statutory duties and therefore hold that the act cannot be protected by the Public Officers Protection Law as Exhibit E was made during the pendency of a suit before this Honourable Court.

On issue 2, claimants counsel submitted that the Conference of Secondary School Tutors (COSST) otherwise known as Academic Staff Union of Secondary Schools (ASSUS) are not duly registered body under the Trade Unions Act, 1973, as amended as it has not been clothed with the status of a Trade Union because it has not been registered as such and does not have its name included in the list of registered trade Unions contained in Schedule 3 of the Trade Unions Act. Moreover, the registration of the 8^th defendant as incorporated is voided by the provision of section 45 of the Trade Unions Act 1973 as amended.

On the other hand, counsel to the 1^st – 8^th defendants submitted that from the content of Exhibit NUT D and NUT F it is clear that the issue for determination No. 2 did not arise because even the Academic Staff Union of Secondary Schools itself never claimed it is a registered Trade Union.

Notwithstanding, the above scenario, it behoves on me to reiterate unequivocably that Section 1(1) of the Trade Unions Act defines a Trade Union:

A Trade Union as any combination of workers or employees, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not apart from this act has an unlawful combination by reasons of its purposes being in restraint of trade…

It is clear that the COSST/ASSUS is not a Trade Union as it has not been registered in accordance with the provisions of the Trade Unions Act, 1973, as amended and does not have it’s a name included in the list of registered Trade Unions contained in Schedule 3 of the Trade Unions Act. I also agree with the submission of the Counsel to the claimants that even the registration of the 8^th defendant as incorporated is voided under the provision of section 45 of the Trade Unions Act, 1973, as amended which provides:

The Companies and Allied Matters Act shall not apply to any trade union or to any Federation of Trade Unions and the registration of any such body under the Act shall be void.

Consequently, issue 2 is resolved in favour of the claimants.

On issue 3, 1.e whether the Academic Staff Union of Secondary Schools Tutors, Kebbi State otherwise known as Conference of Secondary School Tutors (COSST) Kebbi State can enjoy benefits of recognition as a trade union, collect check-off dues and subscriptions from members. Counsel to the claimants submitted that COSST/ASSUS has no power to enjoy the benefits of recognition and collection of check-off dues. From its members since they are not registered in accordance with the provisions of Sections 3, 4 and 5 of the Trade Unions Act, 1973 as amended. It is not therefore entitled to be accorded any recognition by the Kebbi State Government. He also submitted that the 1^st to 8^th defendants are not also qualified to enjoy all benefits of registration and recognition by the Government. In the same vein, the 8^th defendant is not eligible to receive check-off dues deducted from the salaries of their members.

On their side the 1^st – 8^th defendants, the claimants did not prevent the request by Conference of Secondary School Tutors demanding for the deduction of check-off dues because Exhibit NUT D did not emanate from Conference of Secondary School Tutors, Kebbi State and it is not a request for deduction of check-off dues.

In seeking answers to the issues raised, we should resort to relevant statutory and judicial authorities. Section 17 of the Trade Unions Act 1973, as amended, provides thus:

Upon registration and recognition of any trade union specified in the third schedule to this Act, an employer shall:

Make deductions from the wages of every worker who is a member of any of the Trade Union for the purpose of paying contribution to the trade union so registered.
Remit such deductions to the Registered office of the Trade Union within a reasonable period at such period as may be prescribed from time to time by the Registrar.

Also Section 5(3) of the Labour Act, 1972 as amended, stipulates that:

Upon registration and recognition of any of the Trade Union specified in Part A of the 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 recognized, 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 contribution mentioned in paragraph (a) of this section.

In the case of UDO V. BHMB (1970) 4 NWLR (PT. 147) 52 AT 66 it was confirmed that once a trade union has been registered and recognized, it is entitled to check-off dues from the employer.

Flowing from the above, it is evident that for a Trade Union to enjoy check-off dues, it must be registered and recognized. Once a Trade Union has been so registered, recognition and payment of check-off dues by an employer is automatic.

It is therefore trite that the duty to deduct check-off dues is mandatory and no employer is permitted to choose whether or not to deduct. The worker is not under the law, expected to specifically authorize the employer to deduct the check-off dues. In HABU V. NUT TARABA STATE (2005) it was held that:

The deduction from salaries and wages as check-off dues of a worker and remittance of same to a trade union in an incidence of membership of the worker whose statutory right is mandatory provided for or rested by the Labour Act.

Furthermore, in the case of CORPORTAE AFFAIRS COMMISSION V. AMALGAMATED UNION OF PUBLIC CORPOATIONS, CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES (SUPRA) it held that:

Recognition of trade union is meaningless unless related to or tied to the deduction of check-off dues. By virtue of Section 16 of the Trade Unions Act, as amended, regarding workers union, there is no doubt that the law intends and stipulates for compulsory recognition and deduction of check-off dues in respect of workers who are eligible to be members of a union…

In fact, the question of recognition of a trade union and deductions of check-off dues by the employers are matters provided for in the Trade Unions Act, as amended by Decree No. 4 of 1996 and Decree No. 1 of 1999.

Flowing from the above, it is obvious that the defendants are not registered as a Trade Union and therefore not entitled to recognition and collection of check-off dues. In other words, the ASSUS/COSST is not entitled to check-off dues neither is it eligible to recognition as it is not a registered trade union. In the case of MOHAMMED K. MOCHI & 3 ORS V. ABDULLAHI M. YANKO & 5 ORS (SUPRA) the Jos Division of the National Industrial Court had this to say:

“It is my considered view that none of these provisions support the action and submissions of the 1^st and 2^nd respondents in its quest to parade itself as a Trade Union so called. Even ASSUS reliance on the letter from the Minister of Labour approving its registration as a Trade Union in line with provision of section 3(3) of the Trade Unions Act is not helpful to it as the Minister’s approval alone without more cannot elevate ASSUS to the status of a Trade Union. For it to be a Trade Union, it must first be registered by the Registrar of Trade Unions. If there is no evidence that an Association is registered as a Trade Union, it cannot parade itself or function as one.

This is the tenor of section 2(1) which clearly prohibits unregistered Trade Union from functioning as one or performing any acts that can only be performed by the Registered Trade Unions. In the instant case, even though the Minister of Labour gave approval for the registration of ASSUS, the Federal High Court, Abuja in NUT Vs. Hon. Minister of Employment, Labour and Productivity & 3 Ors, Suit No. FHC/ABJ/CS/310/2008 delivered on the 23^rd May, 2008, halted the process. In the circumstance there is no evidence that ASSUS had been registered as a Trade Union, it is my view that it cannot parade itself as one. I therefore find and hold that ASSUS is not a registered trade Union. Having held that ASSUS is not a registered Trade Union, it is not entitled to be accorded recognition as a Trade Union. It is also prohibited from collecting check off dues. By collecting check off dues, the 1^st and 2^nd respondents are embarking on illegality. See ATSSSAN Vs. NIG. AVIATION PROFESSIONALS ASSOCIATION (2009) 14 NLLR (pt. 39) P 370… I cannot close my eyes on this illegality. I therefore frown at this illegality because it confers undeserved benefits to an Unregistered Union. This is because to allow this kind of illegality by an unregistered Trade Union will defeat the whole essence of Trade Unionism in this country. Consequently, I hold that the Academic Staff Union of Secondary Schools is not one of the Unions under the said part A of the third schedule to the Trade Unions Act, neither is there proof that it has been registered by the Registrar of Trade Unions. The applicants’ suit therefore succeeds.”

However, still on deductions, there appears to be different types of contribution, the check-off dues and subscriptions. On this seqment, counsel to the defendants submitted that the proviso to section 2 (1) of the trade Unions Act 1973, as amended permits collection of subscriptions which are necessary for the purpose of getting the union registration. That it clear what the law prohibits is the collection of check-off dues not subscription because check-off dues is only payable to a Trade Union duly registered and is access ad valerem. Whereas subscription is a flat rate contribution agreed by members. Counsel further contended that since what is in contention in the instant case is not collection of check-off dues but collection of subscription which is within the powers of Academic Staff Union of Secondary Schools, urging this court to so hold.

On this score, the claimants’ counsel contended that if the 9^th – 12^th defendants are not restrained, they may end up according the 1^st – 8^th defendants the privileges of a registered trade union even though they are not one.

Now section 2 (1) of the Trade Unions Act 1973 provides thus:

A trade union shall not perform any act in furtherance of the purpose for which it has been formed unless it has been registered under this Act, Provided: that nothing in this section shall prevent a trade union from taking steps (including the collection of subscriptions or dues) for the purpose of which may be necessary for the purpose of getting the association registered.

In my view, the wordings of the section particularly the proviso are clear and unambiguous and should therefore be given their ordinary and literal meaning. The proviso explicitly provides a leeway for unregistered association to levy members a flat rate contribution to get it registered. In this context, and going by proviso to Section 2(1) above, I am of the view that it is lawful for the Academic Staff Union of Teachers, Kebbi State to collect subscription or dues from their members who are willing and agree to the extent that the subscription or due is solely geared towards its registration as a Trade Union, and I so hold.

With reference to issue 4, i.e whether by virtue of Section 40 of the 1999 Constitution, as amended, Section 5(3) of the Labour Act, Section 2 of the Trade Unions Act, and Exhibit AB1-30 as well as Exhibit D1-D20 whether the Academic Staff Union of Secondary Schools and other defendants can contract out of the 4^th claimant and mobilize their members.

Claimants admitted that the 1^st – 7^th defendants are permitted to associate freely as provided by Section 40 of the 1999 Constitution. It becomes a trade union only after it has been duly registered. They added that the defendants have not been registered in accordance with the law. Counsel also refers to paragraph 13 of the affidavit in support where it was stated that an attempt to get COSST/ASSUS registered in 2008 was blocked by the Minister by a Court injunction. Therefore the 1^st – 8^th defendants having failed to get their association (ASSUS) registered in accordance with the provisions of sections 3, 4 and 5 of the Trade Unions Act 1973, as amended, are not qualified to enjoy all the benefits of registration including the right to mobilize and contract out members of the 4^th claimant.

In response the 1^st to 8^th defendants argued that there is no statutory provision which says whoever is employed as a Teacher must be a member of the Nigeria Union of Teachers (NUT). Defendant counsel therefore added that if the 4^th defendant believes that the secondary school teachers are its members then let it present the written consent of those secondary school teachers who agreed in writing to contribute to the claimant in accordance with section 5(4) of the Labour Act. That there is no time the 1^st – 8^th defendants accepted in writing to make voluntary contribution to the claimants but the 10^th to 12^th defendants have been deducting their wages and paying it to the claimants without their written consent as provided by Section 5(4) of the Labour Act, which is illegal and unlawful.

Specifically on contracting out, counsel to the 1^st – 8^th defendants submitted that from the content of Exhibit NUT E which the claimants relied upon, it is clear that it is not the Academic Staff Union of Secondary School that instigated or cajoled secondary school teachers to contract out of the 4^th claimant, rather they individually wrote to their various employers since 2005 that they have contracted out of the claimant. That on receipt of this individual commitment the 9^th – 12^th defendants acted in accordance with the law and stopped the deduction of check-off dues of the concerned teachers since it’s the right of any secondary school Teacher who wishes to contract out is guaranteed.

One of the questions that bogs the mind is: Is the right to freedom of association and assembly conferred on persons by the 1999 Constitution absolute or unfettered? Section 40 of the Constitution provides:

Every person shall be entitled to assemble freely and associate freely with other persons and belong to any political party, trade union or any other association for the protection of his interest.

Freedom to belong to a trade union is also reflected in Section 5(3) of the Trade Unions Act cap T14 LFN 2004 which stipulates that:

Any person who is otherwise eligible for membership of a particular trade union shall not be refused admission to the membership of that union by reason only that he is of a particular community, tribe, place of origin, religion or political opinion.

Section 9(2) of the Labour Act states that no contract shall make it a condition of employment that a worker shall or shall not join a trade union or shall relinquish membership of a trade union.

It would appear from the above provision that a worker can freely form or join a trade union of his choice. But it is not so. The right to assemble and associate freely is not absolute; it has its limitations.

One of such limitations is that there can be no registration of a trade union whether of workers or of employers, except with the approval of the Minister as being satisfied that it is expedient to register the union either by regrouping existing trade unions or otherwise howsoever. By Section 3(2) of the Trade Unions Act:

No trade union shall be registered to represent workers or employers in a place where there already exists a trade union.

In the case of OSAWE V. REGISTRAR OF TRADE UNIONS (1985) 1 NWLR (PT. 4) 755 the appellants applied for registration as the “Nigerian Unified Teaching Service Workers’ Union”, the Registrar rejected the application on the grounds that another union, that was sufficiently representative of the interest of the applicants, was already in existence and registered as the Non-Academic Staff Union of Educational and Associate Institutions. The High Court Judge held that the amendment Act contravened the fundamental rights of the workers as stipulated in Section 37 of the 1979 Constitution, that finding was overturned by the Supreme Court. It held that the 1978 Statute was aimed at restoring sanity and order into trade unionism in Nigeria and therefore not unconstitutional. The apex Court said that freedom to associate with other people exists within and not outside all existing and relevant laws. In SEA TRUCKS (NIG.) LTD. V. PRYNE (2014) NLLR 58 AT P. 69 the Court of Appeal said that “if it were the intention of the makers of the Constitution to make the right to a trade union unfettered or restrained it would have used the word “of his own choice” but that was not the case.

In the case of CORPORTAE AFFAIRS COMMISSION V. AMALGAMATED UNION OF PUBLIC CORPOATIONS, CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES (SUPRA) the Supreme Court gave its stamp of approval to this fact in the case of OSAWE V. REGISTRAR OF TRADE UNIONS (SUPRA) and even went on to confirm the constitutionality of a restrictive trade union regime in the country. To the Supreme Court:

…Section 37 of the 1979 Constitution (now section 40 of the 1999 Constitution) was not infringed by such restrictive trade union regime. In any event such restrictive trade union regime was justified under the equivalent provision of section 45 of the 1999 Constitution. Going by Osawe, therefore, it would seem that the current restrictive and highly compartmentalized trade union in Nigeria is constitutional.

Flowing from the above provisions and judicial authorities the right to freedom of association accorded citizens by Section 40 of the 1999 Constitution, as amended is not absolute but limited. Hence the freedom of association canvassed by the Academic Staff Union of Secondary School Tutors (ASSUS) Kebbi State is equally limited. By the position of the law discussed above, it might be unlikely to register the ASSUS/COSST since there is already a trade union in the name of Nigeria Union of Teachers, Kebbi State Chapter which caters for the interest and welfare of the Teachers and I so find and hold.

Related to this issue is the freedom to contract out of a union. In the case of CORPORTAE AFFAIRS COMMISSION V. AMALGAMATED UNION OF PUBLIC CORPOATIONS, CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES (SUPRA) the National Industrial Court held that:

Registration of trade union is meaningless unless related or lied to the deduction of check-off dues. By virtue of Section 16A of the Trade Unions act, as amended, regarding workers unions, there is no doubt that the law intends and stipulates 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.

Again in the same case on duty of an employer to deduct check-off dues, it was held inter ahia that:

…the worker is not, under any the law expected to specifically authorize the employer to deduct the check-off dues. All he can do if so wishes, to write to the employer directing the employer to stop the deduction of the check-off dues. This he must do as an individual and in writing. This is because section 16A of the Trade Unions Act, as amended, by Decree No. 4 of 1996 obliges an employer to make the deduction in respect of a worker who is eligible to be a member. Eligibility therefore, is the yard stick, test or standard for deductibility. And the employer has no choice in the matter.

Considering the above two quotations as the position of the law, the question is: have the members of the Academic Staff Union of Secondary School Tutors, Kebbi State complied with the above provisions to be legally considered as having contracted out of the 4^th defendant?

The defendants have claimed that the claimants did not attach a request by the Academic Staff Union of Secondary Schools for collection of check-off dues or approval of the 9^th – 12^th defendants allowing the Academic Staff Union of Secondary Schools to collect check-off dues. Similarly, the claimants did not present the request by the Conference of secondary School Teachers demanding for the above check-off dues. The defendants further argued that the content of Exhibit NUT E which the claimant relied upon, it is clear that it is not the Academic Staff Union of Secondary Schools that instigated or cajoled Secondary Schools Tutors to contract out of the 4^th defendant rather they individually wrote to their various Employers since 2005 that they have contracted out of the claimant. Defendants also contended that there is no statutory provision above which says whoever is employed as a Teacher must be a member of the Nigeria Union of Teachers as any trade union. Therefore, if the claimants believe that the Secondary School Teachers are its members then let it present the written consent of those Secondary School Teachers who agreed in writing to contribute to the claimant.

It is noteworthy that by the law as stipulated in the C.A.C’s cases above, there is no requirement the authorization of a member of a union before an employer can deduct check-off dues, that the deduction is mandatory and the employer has no choice but to deduct the dues irrespective of authorization by a member or not. Therefore, the defendants’ submission above that an eligible member shall authorize deduction of check-off dues does not hold water, as the basis of deductibility is eligibility and not authorization by members to do so.

On issue of contracting out, the defendants presented Exhibit AB1-30 and AC1-20 as samples of letters from the Teachers of Secondary Schools, individually written to their respective employers intimating them that they have contracted out of the 4^th claimant, in an attempt to meet the requirement of the law. No doubt the letter Exhibits AB1-30 and AC1-20 would appear to signify the intention to contract out of the 4^th claimant individually.

However, a closer look at the said Exhibits will reveal that they are defective as they do not meet the requirement of the law. Firstly, the said exhibits AB1-30 and AC1-20 attached by 1^st – 8^th defendants are intended to be viewed as public documents which are secondary evidence as ones attached are required to be certified under the provision of Section 105 of the Evidence Act before they can be admissible in evidence. In the case of KERRI V. EZUNAKA BROTHERS & ORS (2013) LPLELR- 12399 (CA) AT 14-15 the Court of Appeal, Enugu Division, held thus:

The evidence Act at section 97 (2) prescribes Secondary evidence admissible and by sub section 6, only certified copy is to be admissible in the case of a public document. Furtherance, the Supreme Court’s authority of ONOBRUCHERE V. EZEGINE (1886) 1 NWLR (PT. 19) 1999, Their Lordships held that: copies of official records are inadmissible unless they are duly certified. The same Supreme Court held in further authority of NZEKWU V. NZEKWU (19890 2 NWLR (PT. 373) AT 404, that copies of official receipts are inadmissible unless they are duly certified.

Now, how are public documents certified? In the case of OKIKI V. JAGUN (1988) 1 NSCC AT 57 the Supreme Court laid out the requirements a public document must meet before it can be regarded as duly certified as hereunder:

Under the Evidence Act, there are fine essential requirements that are necessary for a public document to be regarded as certified copy. They are:

The Legal fees must be paid.
There must be a certificate at the foot of such document that it is a certified copy of the original thereof.

iii. It must be dated.

It must be subscribed by the officer issuing the document indicating his name and his title, designation or rank; and
It must be sealed.

See also Section 104 (1) and (2) of the Evidence Act, 2011.

It is easily observable that in the case of Exhibit AB1-30 there is no name of the certifying officer, no endorsement as to any fees paid and no rank or designation of certifying officer. What we have on then is the stamp of a certain director and the inscription “certified true copy” these fall short of the requirement under Section 104 of the Evidence Act. The fact that there is a stamp on the Exhibit does not cure the defect as anyone can access the stamp. With regards to Exhibits AC1-20, the stamp on them simply states “received”. This obviously falls short of the legal requirements for the admissibility of public documents.

Furtherance, Exhibits AB1-30 and AC1-20 cannot be countenance by this court because they run foul of due process prescribed under the Civil Service Rules 2003. Specifically, Chapter II, Rules II 204 – II 209. Thereof which stipulate that where a civil servant intends to write any correspondence, to his employer, he shall do so through his superior in the institution under which he/she works. In the instant case, the authors of Exhibits Ab1-30 and AC1-20 are Secondary School Teachers. This implies that their superiors are the principals of the various secondary schools under whom they were working at that material time. A cursory look at the said Exhibits indicates that they were not channeled through their principals or through any other superior officer but were written directly to their employers. This practice runs foul of the protocol and procedure stipulated under the Civil Service Rules to be followed by any Civil servant who deems to write any correspondence to his employer.

Consequently, by virtue of their being short of requirements for admissibility under Section 104 of the Evidence Act, complied with the breach of protocol in rooting official correspondence under the Civil Service Rules. I hereby discountenance Exhibits AB1-30 and AC1-20 and I so hold.

The issue of contracting out seems to be synonymous or with the concept of that the defendants have been cajoling and instigating their members to contract out of the 4^th claimant en masse. In the case of CORPORTAE AFFAIRS COMMISSION V. AMALGAMATED UNION OF PUBLIC CORPOATIONS, CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES (SUPRA) the term “poaching” is said to occur.

…in a trade union parlance when one trade union tries to unionize workers who according to existing law, belong to another trade union.

Section 12(4) of the Trade Unions Act, as amended by the Trade (Amendment) Act expressly makes employees membership voluntary. It states that:

…no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member.

That it is the duty of every responsible trade union to woo workers and convince them to join the union without coercion. Therefore, by implication, the law allows or recognizes “poaching” in the trade union perspective. In the case at hand, the Academic Staff Union of Tutors (Kebbi State) cannot “poach” members of the NUT essentially because “poaching” or wooing and convincing workers to join the union without coercion is allowed under the law between one registered trade union and another duly registered trade union thus excluding non-registered body or association under the law. This is moreso, as the law prohibits contracting out in a representative capacity and I so hold issue 4 is therefore resolved against the defendants.

On the whole, for the avoidance of doubt and in views of the both statutory and decided authorities cited and reasons adduced, I find and hold as follows:

This suit is not statue-barred and this court has jurisdiction to entertain same.
Reliefs 1, 2, 3, 4, 5, 6 and 7 are hereby granted.
Relief 8 is granted subject to deletion of the phrase “in perpetuity” therefrom.
ASSUS has the right to collect subscription from its members who agree for the purpose of representation as a Trade Union only.
These orders shall be complied within 30 days from the date of this judgment.

Judgment is entered accordingly. I make no order as to cost.

……………………………….

Hon. Justice Lawal Mani, PhD.