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National Industrial Court

MEDICAL AND HEALTH WORKERS’ UNION OF NIGERIA & 2 Ors -VS- COMRADE CHRISTOPHER UCHE EZEKIEL & 6 ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I. S. GALADIMA

 

 

Dated: 21st October, 2019.                                             SUIT NO: NICN/OW/51/2014

 

Between:

 

  1. MEDICAL AND HEALTH WORKERS’ UNION OF NIGERIA                         
  2. COMRADE U.U. OBIGWE                                                              CLAIMANTS
  3. COMRADE OMINI E. OJAH

 

AND

 

  1. COMRADE CHRISTOPHER UCHE EZEKIEL
  2. COMRADE ENYINNAYA OGBONNAYA                                    
  3. COMRADE CHIMEZIE NWANGANGA
  4. COMRADE S. I. ARUNSI                                                                DEFENDANTS
  5. COMRADE EZEKWEM UCHE C.
  6. COMRADE LAWSON NWACHUKWU
  7. COMRADE NWADINOBI PRINCEWELL            

REPRESENTATION:

  • UKPAI O. UKAIRO; M.E. AZOROH FOR THE CLAIMANTS/DEFENDANTS
  • CHIEF G.I CHIONYE; C. E. AZUARU FOR THE DEFENDANTS/COUNTER CLAIMANTS.

JUDGMENT:

The facts of this case simply are that the 2nd and 3rd Claimants allege to have been legally elected as Executive State Chairman and union secretary of the 1st Claimant Union Abia State Council and that the executive tenure in office of particularly the 2nd Claimant was accordingly till September 2015. The Defendants however, purportedly interrupted with the Claimants’ remaining period in office by claiming to be constituted caretaker committee members of the same 1st Claimant Union by letter dated 17/1/2014 and therefore sought to usurp the executive functions of the elected officials (2nd and 3rd Claimants) including the collection of check off dues from members of the 1st Claimant Union. The 1st Defendant was purportedly expelled from the 1st Claimant Union by letter dated 4/4/2014 for constituting himself illegally as a caretaker Committee Chairman, a position which is accordingly alien to the 1st Claimant Union Constitution.

Consequently, these Claimants filed a writ of complaint on the 14/5/2014 seeking for the following reliefs:

  1. A declaration that the unilateral declaration by the Defendants that the 1st Defendant is the caretaker committee chairman of the Abia State Council of the 1st Claimant Union while the other Defendants are Executive Committee Members of the Caretaker Committee, is null and void for being inconsistent with the Constitution of the 1st Claimant Union.

  1. A declaration that the 2nd Claimant is and remains the Chairman of the Abia State Council within the Constitution of the 1st Claimant Union until the effusion of his tenure in accordance with the Constitution of the 1st Claimant Union upheld and ratified at the National Executive Council meeting of the 1st Claimant while the 3rd Claimant is the lawful secretary of the said union.

  1. A perpetual injunction restraining all the Defendants from holding themselves as Chairman and members of the Executive Committee respectively of the Abia State Council of the 1st Claimant as the setting up of a caretaker committee is inconsistent with the Constitution of the 1st Claimant Union and the 1st Defendant, having ceased to be a member of the association, cannot hold any position at all.

  1. An order directing the Defendants to account to the 1st Claimant, all monies received and or collected as check off dues by the Defendants and to remit to the 1st Claimant such monies in accordance with the constitution.

  1. N5,000,000.00 only being general damages arising from the disruption of the activities of the union and general disaffection.

The said complaint was duly accompanied by other processes including a witness’ deposition.

In response, the Defendants entered appearance and filed their joint Statement of Defense and counter claim dated 23/9/2014. In their counter claim, the Defendants seek the following reliefs:

  1. A declaration that the refusal of the Claimants and his executive members to handover to the new executive committee officers of the Medical and Health Workers’ Union of Nigeria, Abia State Council after having exhausted their two terms (8 year) tenure from 2005 to 2012 as stipulated within the Constitution of the 1st Claimant Union, is wrongful and ultra vires the said Constitution.

  1. A declaration that the Claimants particularly the 2nd and 3rd including their cohorts, are not competent persons as their conducts are adverse to the interests of the Union (MHWUN) Abia State Council.

  1. An order that the Claimants render account of all check off dues collected at the behest of the 1st Claimant from the time they took office as officials to date, that is from 2005 to 2012 and thereafter until this suit is finally determined.

  1. An order that the Defendants as mandated caretaker committee Chairman and members elected by the majority of financial members of the said union, are entitled to hold same pending the conduct of fresh elections which the 2nd and 3rd Claimants in spite of repeated appeals, have ignored since 2012 to date contrary to the MHWUN Constitution.

  1. An order compelling the 2nd Claimant to relinquish power to the 1st Defendant in consonance with a written and irreversible agreement dated 21/5/05 in order to maintain industrial peace and harmony in MHWUN as it affects Abia State Council.

  1. A perpetual injunction restraining the Claimants that is, the 2nd and 3rd Claimants from controlling, managing, directing or howsoever interfering with the affairs of the union and parading themselves as executive officers of the union having served out their tenure and to allow the caretaker committee of the Defendants to conduct a proper process of elections in the manner prescribed in the Constitution and Rules/regulations of the MHWUN Abia State Council amongst other reliefs.

  1. N5,000,000.00 as general damages arising from false imprisonment, loss of reputation and the liberty of the Defendants and on account of derailing the administration of a duly constituted caretaker committee set up by a majority of financial members since the 2nd Claimant exhausted his two terms in office.

Hearing in this matter initially commenced before my learned brother Anuwe, J on 12/6/2014 and got to the stage of defense before she was transferred from the Owerri division. It came up again for trial de novo before Arowosegbe, J on 23/10/2017 and by 11/10/2018, the matter unfortunately again came up before me for trial de novo when I assumed duty to adjudicate the suit afresh. This explains the protraction of this cause for four years now. Trial thus commenced earnestly from 29/10/2018 and was concluded by 7/11/2018. Initially, this Court ordered the parties’ Counsel to adopt their final written addresses on 15/1/2019. Surreptitiously, this matter never came up till 16/5/2019 for adoption. Unfortunately, proceedings were subsequently adjourned twice from 16/5/2019 to 27/6/2019 and 18/7/2019. Finally, on 16/9/2019 both parties’ Counsel eventually adopted their respective final written addresses necessitating this here judgment today.

In prove of the Claimants’ case, they called one witness named “COMRADE OMINI ETENG OGAH”  who testified on their behalf on the 29/10/2018. He tendered two exhibits labeled C 1 and C 2 thus –

  • EXHIBIT C1 – letter dated 9/10/2013 titled “Internal and External Resolutions Of the 38th National Executive Council (NEC) Meeting of Our Union.

  • EXHIBIT C2 – letter dated 4/4/2014 titled “Expulsion From the Union”.

CW 1 was cross examined by the Defendants’ Counsel on the same day whereupon the Claimants’ Counsel closed their case. Portions of the Claimants’ witness testimony may be referred to where necessary in the course of making this Court’s pronouncement.

The Defendants’ opened their defense on 7/11/2018 by calling into evidence, the testimony of a sole witness too, one COMRADE CHRISTOPHER UCHE EZEKIEL. Relying on his deposition of 23/9/2014, DW1 tendered a total of 6 documents labeled Exhibits D 1 – D6 thus-

  • EXHIBIT D1 – letter dated 3/7/2014 titled “Visit Of A 2 Man Committee To Your State Council.

  • EXHIBIT D2 – letter dated 24/1/2014 titled “Re: Notification Of NHWUN State Caretaker Committee”.

  • EXHIBIT D3 – letter dated 21/01/2014 titled “Notification Of MHWUN State Caretaker Committee”.

  • EXHIBIT D4 – letter dated 14/7/2014 titled “Application For Payment Of Our Check-Off Dues In Line With Trade Union Act Cap T14 LFN 2004”.

  • EXHIBIT D5 – letter dated 14/3/2014 titled “Notification Of Your State Council Caretaker Committee”.

The witness also further led evidence on the Counter Claim made by the Defendants. DW 1 was cross examined on the same date and one other document was tendered through him by the Claimants’ Counsel which was admitted thus –

  • EXHIBIT D6 – Constitution of the Medical and Health Workers’ Union of Nigeria.

Upon conclusion of the cross examination of the witness, the Defendants’ Counsel also closed their case. This led the matter to be adjourned to 30/1/2019 for adoption of final written addresses having given the parties’ Counsel the required and adequate time to file their various written addresses in accordance with the rules of this Court. However, as explained above and due to no fault of this Court, the parties’ Counsel did not take advantage of the opportunity to adopt their addresses timorously until the 16/9/2019 almost 9 months and several adjournments after since they were given the opportunity to file their addresses.

DEFENDANTS’ FINAL ADDRESS AND SUBMISSIONS:

 

The Defendants’ Counsel filed his final address and submissions on the 4/12/2018. In it, he first of all queried with and raised the fact that the Claimants’ witness whose name as the 3rd Claimant is spelled “COMRADE OMINI E. OJAH”, had accordingly claimed to be the maker of the sworn deposition of 14/5/2014 which however bears the name “COMRADE OMINI ETENG OGAH”. However, under cross examination, CW 1 had admitted that he was not the maker of the sworn deposition since it bears the name “OGAH” and not “OJAH”. He went on to raise a sole issue for determination which is “whether considering the pleadings of the parties and the evidence adduced in this case who between the Claimants and the Defendants have proven their case on preponderance of evidence as to be entitled to the reliefs sought?”

On this issue, learned Chief Chionye argued that the Claimants’ case is vague and bereft of any evidence to justify the grant of the reliefs sought. He argued on that as at 2014 when this suit was filed, neither the 1st nor the 2nd Claimants had the locus to initiate this suit having by then ceased to be Abia State Chair and Secretary respectively of the 1st Claimant Trade Union. He referred to the evidence of CW1 where he had stated this fact. Accordingly reliefs 1 and 2 cannot be granted by this Court. As far as he was concerned also, reliefs 3, 4 and 5 sought by these Claimants are also not grantable either because this Court lacks such jurisdiction and or because the Claimants do not know exactly how much check off dues are sought against the Defendants and or because there are insufficient evidence to substantiate the grant of the reliefs. Besides, said learned Counsel, the depositions relied upon by these Claimants were not made by the alleged deponent since they do not bear the same name. As far as he is concerned therefore, no witness appeared on behalf of the Claimants and should this Court find this as a fact, then the Claimants’ claims must fail. He urged this Court to therefore dismiss this suit with substantial costs.

With regards to the Defendants’ counter claim, learned Counsel is convinced the claims were proven more so since the Claimants never filed any defence to the counter claim. That since a counter claim is a sword and not a shield, the claimants ought to have independently defended the counter claims raised by the Defendants if they so willed and failure of them so to do, shall entitle the counter claimants to judgment. He cited inter alia, OKOEBOR V. POLICE COUNCIL (citation supplied) to support his assertion. He finally relied on the decision of the Supreme Court in NZERIBE V DAVE (citation supplied) concluding therefore by saying that where a counter claim is not defended, “the onus of proof in such a case is naturally discharged on a minimal of proof”. He urged this court to grant judgment in favor of these Defendants.

CLAIMANTS’ FINAL ADDRESS AND SUBMISSIONS:

 

The Claimants’ Counsel, the learned U.O Ukairo, caused a final written address to be filed on the 14/1/2019 on their behalf. He raised two issues for determination thus – First, whether the Claimants have proved their case on the balance of probability? And secondly, whether the counter claim ought to be dismissed?

His arguments on the 1st question raised goes thus – that the Claimants’ pleaded facts were accordingly unchallenged by the Defendants as such they must be regarded as proven. He relied on IONA AND ANOR V. EDIM AND ORS (citation supplied) to remark that a material averment contained in paragraph 2 of the Statement of Facts established that the 2nd Claimant as Chair of the 1st Claimant Trade Union, remained in office until September, 2015. Accordingly, this fact was never contradicted by the Defendants who in fact admitted this in paragraph 2 of their joint statement of defence. Giving this admission therefore, there is ordinarily no further need for the Claimants to prove the same fact. He relied on the decision in SODIPO V. OGIDAN (citation supplied). Learned Counsel said that however, the Defendants turned about to state a contrary view in paragraph 3 of their joint statement of defence where they averred that particularly the 2nd Claimant’s tenure elapsed in 2012. Mr. Ukairo wants this court to believe that paragraph 3 of the Statement of Defence contradicts their paragraph 2 and as such “confers on the statement of defence a dubious status that gives room for doubt or speculation as to its real intent”. In his view therefore, both paragraphs 2 and 3 of the Statement of Defence ought to be struck out and once this is done, the averments contained in the Statement of Facts remain unchallenged. He again made reference to paragraph 7 of the Statement of Facts where it was averred that the Defendants having unilaterally composed themselves into a caretaker committee, went about to write to the Head of Service of the State that they were duly composed to collect check off dues. Against this set of facts, the Defendants had averred in their paragraph 6 of their joint defence that though they deny paragraphs 5, 6, and 7 of the Claimants’ Statement of Facts, but a cursory look at these paragraphs indicate they in fact admitted what the Claimants had alleged. Said learned Counsel therefore, these inconsistencies in the case of the Defendants makes their case completely inefficacious and unreliable.

Mr. Ukairo believes that the Defendants are bound by the decisions and resolutions made on behalf of the Trade Union as pronounced and recognized in the FOSS V. HARBOTTLE locus classicus and followed in a long line of cases by the Nigerian Courts including ELUFIOYE V. HALILU (citation supplied). That since the Defendants accordingly constituted themselves into a caretaker committee, they had the evidential burden to prove that their appointment was in consonance with the trade union constitution. The Claimants accordingly want this Court to reckon with the fact that the Defendants have no legal right to make any decisions on behalf of the Abia State trade union (1st Claimant) giving what is contained in its Constitution. In light of this view therefore, this Court is obliged to grant the first three reliefs made by these Claimants.

As for relief 4 made by the Claimants, this Court is accordingly also obligated to grant same based on the Defendants’ admission that they were collecting and remitting check off dues on behalf of the 1st Claimant Union. As such, since they claim such, they also should be made to provide a detailed account of such collections and remittances for the periods they conducted those activities. They are duty bound to provide such accounts therefore since they acknowledge that they had collected such dues on behalf of the 1st Claimant.

As far as relief 5 goes, the Defendants who had admitted that they forcibly took over the affairs of the union officials because they allege that the Claimants had been acting corruptly, did so illegally and with impunity without regards to the union constitution. Learned Counsel impressed on me to ignore any reference made by the Defendants’ Counsel to the erroneous use of the name “OGAH” on the witness’ deposition instead of “OJAH” and to treat same as a slip in order for this court to do substantial justice in this cause. In learned Counsel for the Claimants’ view, the 2nd and 3rd Claimants had their tenure elongated by the 1st Claimant and so as at the time of bringing this cause they were presumed to have the legal right to act on behalf of the 1st Claimant trade union. “It is thus the elongation of tenure that is in focus in the case and which is the period covered by the relief sought”, adumbrated the Claimants’ Counsel. He said further that “this relief can only be faulted if the Defendants demonstrate that the 1st Claimant had no power to extend the tenure and that the Defendants had the right to forcibly take over the affairs of the 1st Claimant.” In summation, the learned Counsel for the Claimants wants this Court to ignore the Defendants Counsel’s prayers and grant the reliefs sought by the Claimants.

With regards to the counter claim, learned Ukairo stated that the failure to file a defence to a counter claim is not necessarily fatal. He relied on the case of USMAN V. GARKE (citation supplied). He adopted his earlier submissions mutatis mutandis as his reasons why the counter claim must be dismissed and urged the court not to lend weight to support the illegality of taking over the affairs of the Claimants by the Defendants.

 

DECISION:

Having considered the entire processes, the evidences led by facts and testimonies as well as the addresses and submissions by the respective Counsel in this suit, I am convinced that the issue for determination is whether either of the parties successfully made out any case to justify the grant of the reliefs sought from this Court. In determining this issue, a grave question requires a definitive finding – whether either the Claimants or the Defendants have the locus standi or legal capacity to initiate this cause? To ascertain whether a party has the legal capacity to institute an action, it is a plaintiff’s statement of claim that will be examined. In the case of ADESANOYE V. ADEWOLE (2006) 14 NWLR (PT. 1000) 247 AT 274, Tobi, JSC affirmed that: “It is elementary law that in order to determine locus standi of the plaintiff, the only court process to look at is the statement of claim. It is the statement of claim that should exclusively donate locus standi” — cited with approval in UNITED BANK FOR AFRICA PLC & ANOR. V. MRS. UGOENYI & ANOR. (2011) LPELR-5065(CA).

The question of locus standi must of importance be determined first by this Court as it touches on jurisdiction. This is more so because whereas the 2nd and 3rd Claimants allege that as at the time of instituting this cause in 2014, their tenure had been elongated by the 1st Claimant following the general resolutions reached by the National Executive Council, the Defendants on the other hand query this and claim that by 2012, the 2nd and 3rd Claimants had ceased to be officials of the 1st Claimant Union and as such they (the Defendants), were constituted as caretakers to take over the affairs of the union pending the conduct of fresh elections of new officials of the union.

Now, from the statement of facts filed before this Court, the Claimants allege as follows:

“2. The second Claimant is the Chairman of the said Abia State Chapter and his tenure will expire before September, 2015 when the State Delegates’ Conference will hold after the National Delegates’ Conference must have been held in March, 2015. (The communique of the 1st Claimant issued at the end of the 37th and 38th sessions of the National Executive Committee of the 1st Claimant is hereby pleaded).”

 

It is curious to note that throughout  the length and breadth of the statement of facts, the Claimants left out any material facts establishing when they were elected as State Officials of the union and specifically when they were to cease to become such officials. Of equal curiosity is the fact that they did not specifically highlight the portions of the alleged communique issued at the 38th National Executive Council meeting extending their tenure in office as officials of the 1st Claimant union — from the contents of Exhibit C1 tendered. To my utter bewilderment, the Claimants either neglected and or refused to refer to portions of the union constitution stating the duration of tenure of the state executive officials and particularly to any reference granting a tenure elongation. It almost seems the Claimants want this Court to embark on a voyage of self discovery to ascertain whether they have the requisite legal capacity to institute this cause. This certainly is not what any court of law is allowed to do. It’s either that or they belief this will not be a subject of debate by their opponent. Is this however the situation?

According to the Defendants on the other hand in their Statement of Defence filed on the 23/9/2014, paragraphs 2 and 3 read thus:

….

“2. The defendants admit paragraph 2 of the Statement of Facts establishing the cause of action.

  1. The defendants deny paragraph 2 of the said statement and in further answer or reply aver as follows:

(i) that the 2nd Claimant was formerly the chairman of Abia State Chapter of the 1st Claimant and whose tenure has since expired in 2012…”

 

Sequel to this and in what is contained in their counter claim, the Defendants stated that—

“8. The Defendants aver that by reason of the 2nd Claimant and in concert with the 3rd Claimant’s tenure which has expired (sic) in 2012, their inability to account for all check off dues collected on members coupled with violence against the Defendants, the Defendant (sic) have suffered damages and accordingly hereby claim as follows:

  1. A declaration that the refusal of the Claimants and his executives for the (sic) new executive officers of the Medical and Health Workers Union of Nigeria, Abia State Council, the Claimants having exhausted their two terms of Eight (8) years duration from 2005 to 2012 as stipulated in the constitution of the said MHWUN Abia State Council is wrongful and ultra vires the said constitution as it affects the Abia State Council.” ….

From these portions of the joint Statement of Defence reproduced above, it is clearly obvious that the Defendants challenged the continued stay of the Claimants in office beyond 2012. It is therefore up to the Claimants to establish by reasonable probability, that they have the mandate to continue in office till 2014 when this action was filed. Whether this has been established therefore shall be determined from the facts before this court and evidence adduced so far.

Therefore, considering that the tenure of office of the Claimants is of paramount significance, this Court had called on their Counsel in open court to address it on the 16/9/2019 shortly before the final written addresses were adopted. According to the 2nd Claimant, — and pursuant to Order 44 rule 1 of the rules of this Court — who was asked directly by this Court on when they were duly elected, he responded that — “we were elected 2005 to 2009. Then we were re-elected in 2009 to end in 2013. But there was extension of tenure by the national body for 2 years. Therefore, our tenure should have expired in 2015. In 2014, the defendants self appointed themselves as caretakers”.

When further probed by this Court whether the Claimants were still in office to date, their Counsel responded that — “in 2015, the national body gave a circular for elections to be conducted in October, 2015. This was done which led to the emergence of the current Chairman, Comrade Okoro Ogbunnaya. The second claimant is currently an official of NLC and he is in his second term”.

 

When asked if at the time of instituting this suit the Claimants believed they had the locus to initiate this action, their counsel responded that — “yes they did because of the tenure elongation made by the national body”.

 

It is thus clear that the duration of the tenure of office of the officers of the 1st Claimant Union is a four year term renewable by another period of four years. There is therefore no further contention that having been first elected as officials in 2005, their first tenure extinguished in 2009. After re-election in 2009, they were expected to have left office by 2013. This is supported by the contents of Rule 7 L (x) of the MHWUN Constitution (page 13) tendered as Exhibit D 6 which specifically provides that — “no elected national or state officer shall serve in the same position for more than two terms of four years each.”

 

The curious and legal aspect of this cause is the tenure elongation purportedly granted the Claimants to stay on till October, 2015. Whereas the Claimants state that the national body of the union had unanimously extended the tenure of the State EXCO by an additional 2 years, the Defendants believe this is untrue and if it was, then it will be unconstitutional and illegal. In proving that there was such an elongation, the Claimants had tendered Exhibit C 1 dated 9/10/2013 which is an “Internal and External Resolutions of the 38th National Executive Council (NEC) Meeting of Our Union.”

Interestingly, the direct portion where such tenure elongation was made at the 38th NEC meeting remains elusive to this Court to date. Not only was such portion not highlighted, a cursory read through the entire document does not suggest that the Claimants were expressly and or specifically granted any tenure elongation by the national body of the union. As a matter of fact in item 10 contained in Exhibit C1, it reads:

The NEC – in session looked at the history of the union as it affects extension of tenures and came to the conclusion that the Comrade Y.O.Ozigi led administration was extended from 1980 – 1990. Equally, Comrade Emeka Okonkwo’s led administration was extended from 1990 – 1996; which clearly indicated that extensions by NEC had become a norm fully backed by our constitutional provision of Rule 5 (i).

 

In view of the foregoing, the NEC – in – session resolved to postpone the tenure of the Comrade (Dr.) Ayuba P. Wabba, mni, led administration, for the last time, till March 2015, in order to actualize the mandate of Imo 2011 NEC and the National Industrial Court cases.

 

This Court cannot make any permutation on facts and evidence beyond what is presented before it. If the union constitution specifically provides under its Rule 7 L (x) that the tenure of the executive officers both at the national and states levels is four years, then the interpretation to be given by this Court must be a strict and literal one. There is therefore no ambiguity as to the issue of tenure of officers of the 1st Claimant Union. If however majority members of the union decide to amend such provision including the power to extend the tenure of its officials, there is no question of doubt in my mind that such power must expressly be provided for in the constitution and any resolution reached for tenure elongation, be properly registered with the Registrar of Unions in consonance with Section 29 of the Trade Union Act, 2004. This is in light of this Court’s decision in EKEANYANWU AND OTHERS V. EZE AND OTHERS (suit no: NICN/OW/36/2018) delivered on 11/7/2019 where I held inter alia that

“…in order for a decision or resolution of the National Delegates’ Council to supersede any provision of the Constitution, it must have been made formally — that is in writing, and possibly signed by all the (majority) members present at the NDC and very importantly, registered with the Registrar of Trade Unions pursuant to Section 29 of the TUA 2004. This latter reasoning is because in order for the union not to run foul of Section 29 (1) TUA 2004, it is required that any resolution for the alteration or amendment of the rules of a trade union, be registered before it can be given any legal effect.”(reemphasized here).

Unfortunately for these here Claimants, Exhibit C 1 tendered by the Claimants does not meet the requirement of a valid resolution made by the majority of the members of the union since it does not  contain any evidence to show that it was signed by the majority of members present who had taken such decision and even if this isn’t the case, there is no evidence to suggest that any resolution reached for tenure elongation of the union’s officials — if at all it is even contained therein, — was registered with the Registrar of Trade Unions and properly receipted and certified in accordance with the Trade Union Act, 2004. Besides, it is easy to concede that Exhibit C 1 was a communique — as properly titled by the makers of that document. A “communique” is not and cannot be a “union resolution”. Whilst a communique is an official message that is sent between people or to a media outlet or any sort of formal announcement, report, or statement especially if someone in authority issues it, a “resolution” is a formal expression of opinion or intention agreed on by a union body, legislative body, committee, or other formal meeting, typically after taking a vote and signed by all the members or a majority thereof in attendance who had voted. A communique merely informs or communicates the outcome of any resolution(s) reached by a formal body or union.

It is important to note here briefly that by virtue of the Union’s Rule 11, the Secretary of the Union is a constituent member of the State Executive Council (EXCO) although an appointee of the Union. He is therefore not expected to act independent of the State Executive Committee which he is appointed by the Union to serve as its Secretary.

Consequently, the Claimants’ mandate as officials of the State Chapter of the 1st Claimant Union, factually and legally extinguished in 2013 and as such, as at the time of filing this suit, they lacked the legal capacity or standi to have initiated and prosecuted same against these Defendants.

Thus found, it is impossible for this court to award any of the 5 reliefs sought by the Claimants in this here suit by reason of the fact only that they do not have the requisite locus standi to institute this action as State Officers of MHWUN Abia State Chapter or as representatives of the officials of that union. Their action therefore fails and it is here refused.

DEFENDANTS’ COUNTER CLAIM:

 

Moving on to the Defendants’ counter claim, they seek 7 reliefs from this Court as reproduced beforehand. However, for the sake of elucidation, they are as follows:

  1. A declaration that the refusal of the Claimants and his executives (sic) for the new executive officers of the Medical and Health Workers’ Union of Nigeria, Abia State Council, the Claimants having exhausted their two terms of eight (8) years duration from 2005 – 2012 (sic) as stipulated in the constitution of the sad (sic) MHWUN Abia State Council is wrongful and ultra vires the said constitution as it affects the Abia State Council.
  2. A Declaration that the Claimants particularly the 2nd and 3rd Claimants including their cohorts are not competent persons and that their conduct was adverse to the interest of the Union (MHWUN) Abia State Council.
  3. An order that the Claimants render account of all check-off dues collected at the behest of the 1st Claimant from the time or period when they took over the mantle of leadership/office till date, that is from 2005 to 2012 (sic) and thereafter until the suit is finally determined.
  4. An order that the Defendants as mandated caretaker committee chairman and members by the majority of financial members of the said Union are entitled to the same pending the conduct of fresh election which the 2nd and 3rd Claimants inspire of repeated appeals have ignored since 2012 till date contrary to the MHWUN constitution.
  5. An order compelling the 2nd Claimant to relinquish power to the 1st Defendant in consonance with a written and irreversible agreement dated the 21/4/2005 in order to maintain industrial peace and harmony in MHWUN as it affects Abia State Council.
  6. A perpetual injunction restraining the Claimants that is the 2nd and 3rd Claimants from controlling, a managing, directing or how so ever interfering with the affairs of the union and parading themselves as executive officers of the union having served out his tenure and allow the caretaker committee of the Defendants to conduct a proper process of election in the manner as contained in constitution and rules/regulations of the Medical and Health Workers’ Union of Nigeria (Abia State Council) amongst other reliefs claimed and or sought.
  7. N5,000,000.00 being general damages arising from false imprisonment, loss of reputation, and liberty of the Defendants and on account of derailing the administration of a duly constituted caretaker committee set up by a majority of financial members since the 2nd Claimant has exhausted his two terms in office and applied tenor – infested controversies to remain perpetually in office.

Suffice it to say that reliefs 1, 2 and 6 have already been dealt with by this Court’s findings above and it is therefore unnecessary to reopen those issues again.

Outrightly, relief number 7 sought by the Counter Claimants cannot be granted having not been established before this Court. Indeed, insufficient facts were placed before this Court either in the witness’ deposition or oral testimony before me or by evidence suggesting that these Claimants (now Defendants to this Counter Claim), caused the arrests either legally or falsely of these Counter Claimants or the procurement of any other illegal means to cause the loss of reputation or liberties of these Counter Claimants. They can not be granted any damages as sought in respect of unproven allegations. Relief number 7 of the Counter Claim is therefore spurious. It is thus refused, and I so hold.

Primarily, “a counter-claim is a legal procedure which allows the defendant to maintain an action against the plaintiff in the same proceedings. It is thus a cross-action. It is very much like a statement of claim and it is governed by the same rules of pleadings. SEE: N.P.A. V. C.G.F.C. (1974) 12 SC P. 81; OYAGBOLA V. ESSO W.A. (1966) 1 ALL NLR P. 170. Once a counter-claim is filed and served, the plaintiff is expected to file his defence in his reply. Where no defence is filed the facts averred to in the counter-claim would be regarded as admitted. See – N.H.D.S. V. MUMUNI (1977) 2 SC P. 57.” Per RHODES-VIVOUR, J.C.A. (Pp.10-11, Paras.G-B) in ADMIRAL MIKE AKHIGBE (RTD.) & ORS V. PAULOSA (NIG.) LIMITED & ANOR. [2006] 12 NWLR (pt.994).

Although the Claimants failed to file a defence to this Counter Claim, the success or otherwise of the counter claim or cross action will surely depend on the availability of convincing and probable evidence by this Court. Therefore, as in the decision in USMAN V. GARKE (1998) LPELR-5283(CA) which was cited by the learned Counsel for the Claimants in his closing arguments, “it is trite law that the failure of a plaintiff to file a defence to a counter-claim may not be (necessarily) disastrous for the plaintiff if he succeeds in his claim. Where, as in this case, the counter-claim of the defendant is for declaratory right, the defendant will still have to satisfy the court that he is entitled to the declaration regardless of the failure of the plaintiff to file a defence. See Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647.”PER EDOZIE, J.C.A.”

 

It is interesting to note that the Counter Claimants have not made or filed any separate witness’ deposition with respect to the counter claims made electing therefore to rely on the same deposition made by their witness against the original suit dated 23/9/2014.

The declarative and executory reliefs sought by these Counter Claimants are particularly that they were legally appointed caretakers of the 1st Claimant Union (MHWUN) by virtue of the documents exhibited as D1, D2, D3, D4 and D5 respectively. These Counter Claimants also allege that they were given the consequential rights and duties to inclusively, collect all check off dues and remit same to the coffers of the 1st Claimant. It was also alleged that their appointment as caretakers was with the direct approval of the overwhelming members and stakeholders of the union therefore ascribing their legality to act in that guise pending the conduct of elections of new officials to takeover and run the affairs of the union.

Even though the Claimants did not file any defense to the cross action as already observed beforehand, they had in the main suit alleged otherwise stating that the union’s constitution neither makes nor provides for the constitution or appointment of a caretaker committee in an event such as the one that existed between 2012 to 2015, the periods in controversy in these actions.

The burden of proving the legality of their purported appointment as caretakers indeed lies with them. In doing so, I believe their first duty is to establish before this court that the union’s constitution enables such appointment. This is so because the MHWUN constitution which was admitted as Exhibit D6, clearly provides under its Rule 5 (g) that — “any supplementary rule which contradicts, derogates from or is inconsistent with the provisions of the constitution, shall to that extent be regarded as null and void and of no effect whatsoever”. The parties are bound by the constitution which forms the guidelines for their legality as a union. In keeping with the tenets of the rule of law and to ensure that there is harmony amongst the members of the union therefore, they must be bound strictly by the wordings and provisions of the constitution of their union. Exhibit D6 is the only document worth considering in deciding whether or not these Counter Claimants are entitled to the remaining reliefs 3, 4 and 5 as sought. Moreover, it is equitable to say that since the Counter Claimants question the constitutional validity of the tenure of the Defendants in this cross action beyond 2012, theirs too should and must be subjected to the same test.

It is my candid view that not only have these Counter Claimants failed in highlighting and or referring to the portions of the union’s constitution wherefrom they derive their constitutional validity, this Court could not find any iota of provision therein justifying their purported appointment as caretakers of the union. It therefore goes without saying that the Defendants acted unconstitutionally and illegally as a caretaker body of the Abia State’s MHWUN when they did so within the period under the review, and I so hold. In effect therefore, they are not entitled to any of the remaining reliefs sought for. These counter claims are without compunction, hereby refused and the same are dismissed in limine.

It must be pointed out that where any member has any grievance against how the affairs of the union is run or conducted, such person has unencumbered right to initiate action at his own expense before this Court. At least this is what is provided for under Rule 5 (h) of the union’s constitution — Exhibit D6 (and of course in keeping with the exceptions against the rule in FOSS V. HARBOTTLE and ELUFIOYE AND OTHERS V. HALILU (Supra)). The unbridled and willful usurpation of any union’s activities without legal or judicial backing must be abhorred as such acts are not only despicable but must be considered as undemocratic and indeed barbaric. The Counter Claimants herein never acted in the best interest of the Union when they went ahead to constitute themselves into an illegal caretaker committee and solicited the support of relevant government organs in a bid to perpetrate and enjoy the gains of this union. It is equally disturbing that the Claimants in the main suit had not conducted elections immediately their tenure elapsed in order to allow a new set of officials take over the affairs of the union legally. Moreover, the members of the union ought to have taken all legal and necessary steps to abet these problems. This action should have been commenced by the members in their capacity as such but not as purported officials or caretakers of the union.

Giving my findings therefore, the remaining question raised in the final address and submissions of the learned Counsel for the Defendants/Counter Claimants to wit the fact that the Claimants’ witness’ deposition bore a slightly different name from the witness who testified as CW1, becomes merely academic. By the way, the name on the witness deposition is clearly written as “COMRADE OMINI ETENG OGAH” whereas the witness who had testified on behalf of the Claimants said in open court that his name is “COMRADE OMINI ETENG OJAH”. Clearly, the name “OGAH” was misspelled and it appears to have been a slip as explained by the Claimants’ Counsel. This typographical error would not  ordinarily be utilized technically to defeat the ends of substantial justice.

In summary and for the reasons already outlined in my findings above, these Claimants’ action as well as these Defendants’ cross action are all together dismissed. The parties are to bear their individual costs of prosecuting these matters.

Delivered in Owerri this 21st Day of October, 2019.

Hon. Justice Ibrahim Suleiman Galadima,

Presiding Judge,

NICN OWERRI DIVISION.

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