MOTORCYCLE TRANSPORT UNION OF NIGERIA (M.T.U.N.) & ORS. v. DELTA STATE MOTORCYCLIST ASSOCIATION (D.S.M.A.) & ORS. (2010)

MOTORCYCLE TRANSPORT UNION OF NIGERIA (M.T.U.N.) & ORS. v. DELTA STATE MOTORCYCLIST ASSOCIATION (D.S.M.A.) & ORS.

(2010)LCN/3789(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of May, 2010

CA/B/353/2006

RATIO

EVIDENCE: WHAT IS THE BEST EVIDENCE TO PROVE THE JURISTIC PERSONALITY

CONSTITUTIONAL LAW: WHETHER THE CHOICE OF COUNSEL TO REPRESENT A LITIGANT IS A CONSTITUTIONAL RIGHT

it is trite that the choice of counsel to represent a litigant in a court of law is a constitutional right, PER CHIOMA EGONDU NWOSU-IHEME, (Ph.D), J.C.A.

JUSTICES

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

1. MOTORCYCLE TRANSPORT UNION OF NIGERIA (M.T.U.N.)
2. MIKE EKIOJA
3. NATIONAL UNION OF ROAD TRANSPORT WORKERS (N.U.R.T.W.) Appellant(s)

AND

1. DELTA STATE MOTORCYCLIST ASSOCIATION (D.S.M.A.)
2. EMMANUEL IGBOGIDI
3. PRINCE OKIMUTE MILLER Respondent(s)

CHIOMA EGONDU NWOSU-IHEME, (Ph.D), J.C.A. (Delivering the Leading Judgment): The Appellants (as Plaintiffs in the court below) instituted the action leading to this appeal by an originating summons in the High Court of Delta State sitting in Asaba. The Appellants challenged the operation and activities of the 1st Respondent (1st Defendant in the court below) in rendering services in the nature of transportation of goods and or persons by road by means of motorcycles, and or serving as an umbrella body or association for all workers or persons engaging in the transportation of persons and goods by road despite not being a registered trade union.
By a Writ of Summons dated 13th April, 2005, the Appellants claim against the Respondents as follows:
“(1) A declaration that the 1st Defendant not being a registered Trade Union, is not entitled to render essential services in the nature of transportation of goods and persons.
(2) An order of perpetual injunction restraining the Defendants, their servants, agents and privies from, in any manner whatsoever, engaging in the business of transportation of goods and persons by road.”
They went on to formulate three questions for the determination of the lower court.
“(A) Whether, on a proper interpretation of the Provisions of S. 9(i) (b) (iii) of Trade Disputes (Essential Services Act Cap 433 Laws of Nigeria 1990, the 1st Defendant can render essential services in the nature of transportation of persons and goods by road.
(B) Are” the Defendants, on a proper interpretation of the provisions of 5. 2(i) Trade Unions Act Cap 437 Laws of Nigeria 1990 (as amended) and 5.44 Trade Unions Act Cap 437 Laws of Nigeria 1990 (as amended) not guilty of an offence under” the Act?
(C) Whether the fact of Incorporation per se, entitles the 1st Respondent to engage in the rendition” of essential services as provided under S -11 (i) of the 1999 Constitution.”
Pleadings were filed and exchanged by way of affidavit and counter affidavit.
On the 4th of August, 2005, the court in a considered Judgment dismissed the action of the Appellants.
Dissatisfied with the said Judgment the Appellants have appealed to this court on three Grounds set out in the Notice and Grounds of Appeal dated 4/12/05 which without their particulars read:
(A) ERROR IN LAW
The learned trial Judge erred in law when he held that the 1st Defendant being an association of self employed persons who are engaged in the business of transportation does not come under the Jurisdictional scope of N.U.R.T.W. under the Trade Unions Law and came to a wrong decision which occasioned a miscarriage of Justice.
(B) The learned trial Judge erred in law when he held, upon reliance on S. 40 of the 1999 Constitution and the case of MUSA v. INEC (2003) 13 MJSC 1 at 20, that the Defendant as a person was free to assemble freely and associate with other persons and they have so, and came to a wrong decision which occasioned a miscarriage of Justice.
(C) The learned trial Judge misdirected himself when, in evaluating the submissions of one B.N. Okpuzor, Esq., he held that the inclusion of the name of the 5th Plaintiff N.U.R.T. W., rather than give credibility to the action has helped in bringing it down and came to a wrong decision which occasioned a miscarriage of Justice.”
In his brief of argument, learned counsel for the Appellants I.M. ANAH ESQ, formulated three issues for determination as follows:
“3.1.
Whether the 1st Defendant not being a registered trade union or the 5th Plaintiff/Appellant can operate, function or engage in the rendition of essential service of transportation of persons and goods by road and or can act as the umbrella body with an area of jurisdiction extending to all workers or persons engaging in transportation of persons and goods by road.
(GROUND A)
3.2
Whether the learned trial Judge was right in holding that the constitutional right of persons to assemble freely and associate with other persons as provided in Section 40 of the 1999 Constitution and the case of MUSA V. INEC (2003) 13 MJSC 1 at 20 means and includes a right to form an association contrary to law.
(GROUND B)
3.3.
Whether the learned trial Judge was right in giving audience to one B.N. Okpuzor as counsel for the 5th Plaintiff – National Union of Road Transport Workers (N.U.R.T.W.) and in relying on the submission of the said MR. OKPUZOR as the 5th Plaintiff’s counsel to hold that the inclusion of the 5th Plaintiff has helped to bring down the Plaintiffs’ action rather them give credibility to it.
(GROUND C)
It should be noted that counsel for the Defendants at the lower court did not file any brief for the Respondents in this appeal, nor did the Respondents in this appeal file any brief themselves. However, I hasten to add that this failure does not imply automatic victory for the Appellants, for this court will have to consider his Grounds of Appeal, the issues formulated thereon and the arguments proffered in his brief against the background of the entire case as presented at the lower court as well as the Judgment of that court flowing therefrom before reaching a conclusion on the success or failure of the appeal.
I have looked at the three issues formulated by learned counsel for the Appellants, and in my view the three issues can be summarized in one broad issue namely:
“Whether the learned trial Judge was right in holding that the 1st Respondent not being a Registered Trade Union or the National Union of Road Transport Workers (3rd Appellant) can operate, function or engage in the service of transportation of persons and goods by road.”
All arguments of counsel for the Appellants hinge on this broad issue. It is, therefore, on the basis of this single issue that I propose to determine this appeal.
In his argument in support of the appeal, learned counsel for the Appellants, I.M. ANAH ESQ. referred to the Trade Unions Act Cap 114 Laws of the Federation of Nigeria 2004, Third Schedule Part B which provided for the only known restructured Trade Unions in Nigeria. He argued that under No. 16 of the recognized Trade Union is the National Union of Road Transport Workers (NURTW) (the 3rd Appellant), which the Act has provided as the only legally recognized umbrella body, association or Trade Union for all workers engaged in the transportation of passengers and goods by road. He further argued that the 1st Respondent did not adduce evidence to show that it was a Trade Union registered as required by the Trade Unions Act or that there is an Act of National Assembly enabling it in that behalf to act. That the 1st Respondent hanged on its registration or incorporation under Part C of the Companies and Allied Matters Act and submitted that Section 45 of the Trade Unions Act had rendered such registration void.
Counsel contended that the learned trial judge had no, basis in law to hold that the 1st Respondent can exist and engage in the business of transportation of passengers and goods or operate as an umbrella body, union or association for persons or workers engaged in transportation of passengers and goods by road, which he described as an area of Jurisdiction of the NURTW as provided under the Trade Union Act. He called on this court to interfere and referred to the case of UZOEGWU v. IFEAKANDU (2001) 17 NWLR (Pt.741) Pg. 49.
MAKIDE v. AKINWALE (2002) 2 NWLR (Pt.645) S.C. 435 ratio 16.
He argued that it was wrong for the lower court to hold that the 1st Respondent having been registered was entitled to freedom of association placing reliance on Section 40 -of the 1999 Constitution as well as the case of INEC v. MUSA(2003) 3 MJSC 1 at 20.
He further argued that by allowing a total stranger by name B.N. Okpuzor to appear as counsel for the 3’d Appellant (NURTW) rather than Mr. Philip Umeadi (Jnr), the learned trial Judge was swayed by the negative submissions made by the said B.N. Okpuzor whom counsel described as a Spoiler who appeared to spoil the case of the Appellants (Plaintiffs at the lower court). He urged the court to discountenance same and allow the appeal.
I will start the consideration of the issue in this appeal first by reference to portions of the law which I consider essential and germane to this case. To this end, Section 40 of the 1999 Constitution comes into play. It provides:
“Every person shall be entitled to assemble freely and associate with others, and in particular he may form or belong to any political party, trade union, or any other association for the protection of his interest ……” (Underlining mine).
It is admitted that both the 1st Appellant and the 1st Respondent were duly registered by the Corporate Affairs Commission as per Exhibits G3 and AA15, their respective Certificates of Incorporation.

It is trite that the best evidence of the Juristic personality such as the 1st Appellant and the 1st Respondent as incorporated persons is the production of their Certificate of Registration or Incorporation, See APOSTOLIC CHURCH ILESHA v. AG MID-WEST STATE (1972) 4 SC 150 at 169.
IYKE MEDICAL MERCHANDIZE v. PFIZER INC. & ORS (2001) MJSC 136 at 148 -149.
The Corporate Affairs Commission was established by a Law of the National Assembly. The 1st Respondent having been registered, it is my humble but firm view that it can carry out its lawful activities within its limits.
The 1st Respondent having been duly registered is entitled to associate freely. Section 40 of the 1999 Constitution reproduced earlier makes it clear that any person shall be entitled to assemble freely and associate with other persons or any association for the protection of his interest.
The Supreme Court in the case of INEC v. MUSA (2003) 3 MJSC 1 at 20 considered this section in relation to the right of every person to form or belong to a political party. This right is a constitutional right of the 1st Respondent, which they have taken advantage of. There is no evidence that in the exercise of this constitutionally guaranteed right, they have stepped on the rights of other citizens or individuals to warrant or justify the intervention of this court.
It is also clear that from the affidavit in support of the originating summons, neither the 1st Appellant, nor the 1st Respondent are registered Trade Unions. While the 1st Respondent made it clear that it is not a registered Trade Union, the 1st Appellant maintained that it was affiliated to the 3rd Appellant which is a registered Trade Union. I will not want to dwell on the legality or otherwise of the 1st Appellant being affiliated to the 3rd Appellant, or whether or not that recognition was withdrawn, but suffice it to say that as long as the 1st Respondent has categorically stated that it is not a Trade Union, it is not, and cannot be bound by Section 44 of the Trade Union Act, particularly as its activities are confined and limited to Delta State within the confines of its registration and incorporation, and in line with its objectives.
On the issue of B.N. Okpuzor Esq. who was said to have been allowed by the learned trial Judge to appear for the 5th Plaintiff (now 3rd Appellant) it is trite that the choice of counsel to represent a litigant in a court of law is a constitutional right, it is not on record that the 3rd Appellant protested in open court. Besides, it is my humble view that the appearance of the said B.N. Okpuzor has in no way occasioned a miscarriage of justice, one way or the other. It is therefore in my humble view, inconsequential in the determination of this appeal.
It is also my humble but firm view that the 1st Respondent, Delta State Motorcyclist Association (D.S.MA) not being a Registered Trade Union or the National Union of Road Transport Workers (3rd Appellant) can operate, function or engage in the rendition of essential service of transportation of persons and goods by road and can act as an umbrella body to workers or persons engaged in transportation of persons and goods by road in Delta State of Nigeria.
In the final result and having regard to all I have said above, I answer the sole issue in this appeal in the affirmative. All the Grounds of Appeal fail: The appeal is unmeritorious, it is hereby dismissed. The Judgment of the lower court is affirmed. I make no order as to costs.

GEORGE OLADEINDE SHOREMI, J.C.A I had the privilege of reading in draft the judgment of my learned brother Nwosu-Iheme J.C.A. I agree with the reasoning therein and I hold that the appeal is unmeritorious and therefore ought to be dismissed and it is hereby dismissed by me for all the reasons advanced by my learned brother.
I make no order as to cost.

ALI ABUBAKAR BABANDI GUMEL, J.C.A: I agree.

Appearances

CHIEF I.M. ANAHFor Appellant

AND

UnrepresentedFor Respondent