IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. N. AGBAKOBA
DATED 30TH March, 2017 SUIT NO: NICN/ABJ/236/2015
BETWEEN:
- NATIONAL UNION OF POSTAL AND
TELECOMMUNCATION EMPLOYEES (NUPTE) CLAIMANTS
- NIGERIAN LABOUR CONGRESS
AND:
- NIGERIAN POSTAL SERVICE
- SENIOR STAFF ASSOCIATION OF COMMUNICATIONS, DEFENDANTS
TRANSPORT AND CORPORATIONS (SSACTAC)
REPRESENTATION:
- J. ROBEERT ESQfor the Claimants
- E. A. EKAWON ESQfor the 1stDefendant
- J. OKECHUKWU ESQfor the 2ndDefendant
J U D G E M E N T
The Claimants instituted this suit via Originating Summons filed on 27th July, 2015 and dated 23rd July, 2015, claiming for the determination of the following questions:
- Whether the 1st Defendant was correct in relying on the decisions of this Honourable Court in Suits No. NIC/5/93 and NICN/ABJ/4/2010 between the Nigeria Civil Service Union v. Association of Senior Civil Servants of Nigeria, as a basis for compelling its employees on grade level 07 who were members of the 1st Claimant Union to become members of the 2nd Defendant Association, in spite of the fact that those decisions were based on their own peculiar facts and on the state of the law before the enactment of the Trade Unions (Amendment) Act, 2005 which introduced a new sub-section 12(4) to the Trade Unions Act and the principle of voluntarism in determining membership of registered and recognized trade unions in an industry or organization.
- Whether the action of the 1st Defendant in restricting the membership of the 1st Claimant, in the 1st Defendant’s organization to employees on grade levels 01 to 06 and compelling employees of the 1st Defendant who are on grade level 07 and who had been members of the 1st Claimant to now become members of the 2nd Defendant, is not in breach of the provisions of Section 12(4) of the Trade Unions Act (as amended by the Trade Unions (Amendment) Act 2005).
- Whether the action of the 1st Defendant in refusing to pay to the 1st Claimant, the check-off dues deducted from the salaries of employees of the 1st Defendant on grade level 07, who are still subsisting members of the 1st Claimant union, but instead paying over same to the 2nd Defendant, does not amount thereby to a violation of Sub-section 12(4), and Section 16A of the Trade Unions Act, Cap T14, Laws of the Federation of Nigeria 2004, (as amended by the Trade Unions (Amendment) Act, 2005).
- Whether it is not unlawful and unconstitutional for the 2nd Defendant Association to claim to be unionizing employees of the 1st Defendant on grade level 07 and to be collecting from the 1st Defendant check-off dues deducted from the salaries of the said employees when the 2nd Defendant Association is aware that the said employees have always been members of the lst Claimant union and have not voluntarily relinquished their membership thereof nor opted to become members of the 2nd Defendant Association
In the event of the determination of all the questions positively in favour of the Claimants, the Claimants hereby claim the following reliefs:
1) A DECLARATION that by virtue of sub-section 12(4) of the Trade Unions Act (as amended by the Trade Unions (Amendment) Act 2005), employees of the 1st Defendant on grade level 07 who are members of the 1st Claimant Union and who have not voluntarily opted out of the membership of the said Union, cannot be forced, coerced or compelled by the 1st Defendant and/or the 2nd Defendant Association to join and become members of the 2nd Defendant Association.
2) A DECLARATION that employees of the 1st Defendant on grade level 07 being members, and having not voluntarily opted out of or relinquished their membership of the lst Claimant Union, the 1st Defendant is obliged to deduct check off dues from the salaries of the said employees and pay same to the registered office or the designated bank account of the 1st Claimant Union as statutorily prescribed in section 1 6A of the Trade Unions Act (as amended by the Trade Unions (Amendment) Act 2005).
3) A DECLARATION that it is unlawful and unconstitutional for the 2nd Defendant Association to claim the right to unionize forcefully employees of the 1st Defendant on grade level 07 and to be collecting from the 1st Defendant check-off dues deducted from the salaries of the said employees when to the knowledge of the 2nd Defendant Association the said employees have always been members of the 1st Claimant Union and have not voluntarily relinquished their membership of the 1st Claimant Union nor consented or opted to become members of the 2nd Defendant Association.
4) A DECLARATION that the action of the 1st Defendant in restricting the membership of the 1st Claimant to employees of the 1st Defendant on grade levels 01 to 06 is in breach of the provisions of Sub-section 12(4) of the Trade Unions Act (as amended by the Trade Unions (Amendment) Act 2005).
5) A DECLARATION that it is wrongful for the 1st Defendant to force or coerce its employees on grade level 07 to relinquish their membership of the 1st Claimant Union and join the 2nd Defendant Association by placing reliance on the decision of this Honourable Court in Suit No. NIC/5/93 and Suit No. NICN/ABJ/2010 which were between the Nigeria Civil Service Union and Association of Senior Civil Servants of Nigeria, when the 1st Claimant Union and the 2nd Defendant Association were not parties to the said Suits and when the decision in Suit No. NIC/5/93 was reached prior to the enactment of sub-section 12(4) of the Trade Unions (Amendment) Act 2005 and the decision in Suit No. NICN/ABJ/2010 merely adopted the earlier decision on the principle of estoppel per rem judicata.
6) AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant hereof jointly and severally, whether by themselves or through their servants, agents, privies or in any other capacity whatsoever, from forcing, coercing or compelling employees of the lst Defendant on grade level 07 to be members of the 2nd Defendant Association without the said employees voluntarily opting to be such members.
7) AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant hereof from demanding for payment of and/or collecting from the 1st Defendant check-off dues deducted from the salaries of employees of the 1st Defendant on grade level 07 when such employees are members and remain members of the Claimant Union and have not voluntarily opted to become members of the 2nd Defendant Association.
8) AN ORDER OF MANDATORY INJUNCTION COMPELLING the 1st Defendant to pay all check-off dues collected from the employees of the Defendant on grade level 07, who are members of the 1st Claimant, to the registered office or designated bank account of the lst Claimant in accordance with the provision of Section 16A of the Trade Unions Act Cap T14, Laws of the Federation of Nigeria 2004 (as amended by the Trade Unions (Amendment) Act, 2005).
9) AN ORDER OF MANDATORY INJUNCTION COMPELLING the Defendants jointly and severally to render an account of all the check off dues so far deducted from the salaries of grade level 07 employees of the 1st Defendant from November 2014 and either paid over to the 2nd Defendant Association or retained by the lst Defendant and pay same over to the Claimant within two months from the date the Judgment of this Honourable Court is delivered.
WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS
ISSUE
Whether or not the Claimants are entitled to have all the questions for determination resolved in their favour and be granted all the reliefs sought by them from the court.
Learned Counsel submitted that neither the 1st Claimant Union nor the 2nd Defendant Association were parties to Suit No. NIC/5/93 reported as Nigerian Civil Service Union v. Association of Senior Civil Servants of Nigeria (2004) 1 NLLR (pt.3) 429 and that there is also no evidence before the court that either of them was privy to any of the parties in those suits. Therefore, that they are neither bound nor affected by the result of the cases. Usung v. Nyong (2010) 2 NWLR (pt.1177) 83 @ 114(D-E), per Omokri, JCA.
He submitted that unlike the Nigerian Civil Service Union the only cadre of postal and telecommunication services employees excluded from the membership of the Claimant Union are professional and administrative cadres, thus, that the specific mention of professional and administrative cadres in this regard means the exclusion of all other cadres of communication workers. In effect, all these other cadres are within the membership coverage of the 1st Claimant Union. Agbareh v. Mimra (2008) 2 NWLR (pt.1071) 378 @ 437(J)-F) (per Akintan, JSC).
It is counsel’s contention that it is not the business of an employer to interfere in trade union membership or determine which union an employee should belong to. Its statutorily prescribed role, once a union is registered and recognized in the industry, is to deduct check off dues from the salary of the employee and pay it to the registered office of the Union. Section 16A of the Trade Unions Act (as amended by the Trade Unions (Amendment Act 2005).
He argued that although explanatory notes are not generally part of a piece of statute, recourse can be had to it as an aide to the correct interpretation of the statute. UWAIFO V. ATTORNEY GENERAL OF BENDEL STATE (1982) NSCC 231 @ 242(LINES 15-25) WHERE THE SUPREME COURT, Per Idigbe, JSC.
1st Defendant filed a 22 paragraph COUNTER AFFIDAVIT on 4th March, 2016, deposed to by Caiphas Yahaye.
WRITTEN ADDRESS OF THE FIRST DEFENDANT IN RESPONSE TO CLAIMANTS’ ORIGINATING SUMMONS.
ISSUES
(i) Whether by the provisions of Section 12(4) of the Trade Union (Amendment) Act 2005, voluntarism and the right of a worker to decide which union to belong is absolute and not subject to the jurisdictional scope of each particular union.
(ii) If the answer to the above issue one is in the negative, whether the first defendant has acted unlawfully in remitting the check off dues of her employees on grade level 07 to the second defendant.
ON ISSUE 1
Whether by the provisions of Section 12(4) of the Trade Union (Amendment) Act 2005, voluntarism and the right of a worker to decide which union to belong is absolute and not subject to the jurisdictional scope of each particular union.
Counsel submitted that the primary basis for the classification of trade unions in Nigeria is on the categorization of junior and senior staff and that in the Public Service as well as the condition of service between the first defendant and her employees, junior staffs are categorized as employees on grade level 03 — 06 while senior staff are employees on grade level 07 and above. Public Service Rules, Sections 1.9 and 1.10 of the Condition of Service between the 1st defendant and her employees. N.C.S.U. v A.S.C.S.N 2004 1 NLLR 429.
Furthermore, that this basic division of unions into junior and senior staff is recognized under the Trade Unions Act CAP T14, LFN 2004 as well as the Trade Union (Amendment) Act 2005. THIRD SCHEDULE to the Trade Union Act 2004. Part b of the schedule to the Act lists all Unions referred to as workers Union.
Counsel submitted that the definition of the term “workers” by the Claimants to include senior employees does not hold water as a number of Judicial authority/decisions support the fact that particularly in the Public Sector, junior staff on grade 01 — 06 belong to the workers union while senior staff on grade 07 and above belong to the Senior Staff Association. NIGERIAN UNION OF RAILWAYMEN (NUR) v NIGERIA RAILWAY CORPORATION (NRC) 1984/85 NWLR at Page 95; METALLIC AND NON-METALLIC UNION v METTALIC AND NON-METTALIC SENIOR STAFF ASSOCIATION 1987 N.I.C.L.R 34.
ON ISSUE 2
If the answer to the above issue one is in the negative, whether the first defendant has acted unlawfully in remitting the check off dues of her employees on grade level 07 to the second defendant.
It is counsel’s submission that the first defendant has not acted unlawfully in effecting the check off deductions of her employees on grade level 07 and remitting same to the second defendant.
He submitted that voluntarism and freedom of employees to decide which trade union to join or not to join not being absolute but subject to the jurisdictional scope of a particular trade union, the 1st defendant has not acted unlawfully.
2nd defendant filed a 17 paragraph COUNTER AFFIDAVIT on 7th March, 2016 deposed to by Aminu Maidanan Suleiman.
WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT
ISSUE
- Whether employees/staff on grade level 07 in the public service of federation including the Nigerian postal service are senior staff?
- If the answer to the above is in the affirmative, whether the 1st defendant was right to deduct check-off dues of its staff on grade level 07 for remittance to the 2nd defendant?
ON ISSUE 1
Whether employees/staff on grade level 07 in the public service of federation including the Nigerian postal service are senior staff?
Counsel submitted that it is trite that where there is apparent conflict in two conflicting affidavits especially in an action begun by Originating Summons, the court would refer to the exhibits in resolving the conflict. GBILEVE v. ADDINCI (2014) 16 NWLR (PT. 1433) at 417 para. F.
He submitted that where affidavit or document is filed supporting a state of facts, the party who desires the court to disbelieve the fact must file a counter affidavit or reply affidavit, failing such rebuttal the facts stand unchallenged and it will be proper for the court to accept thereon.
CHAIRMAN, EFCC V LITLECHILD (2016) 3 NWLR [PT. 1498] 72 CA AT 91 PARAS F- H.
Furthermore, that it is trite that where a party produces a document and relies on it, it is bound by that document for better or for worse as this is clearly an admission against interest which needs no further prove. WALTER v. SYKYLL (NIG.) LTD. (2001) 3 NWLR (PT. 201) 438 at 462
Paras. B-C; AJIBULU v. AJAYI (2014) 2 NWLR (PT 1392) 483 at 497 paras. B-C.
Counsel argued that authoritative case law of this Honourable Court is eloquent in exposition of the schematic restructuring of trade unions in Nigeria over the past three decades and that the
outcome of this restructuring was the streamlining of workers, staff and employers unions in the Third Schedule of the Trade Unions Act and the assignment of jurisdictional scope to each recognized trade union in Part 5 of the said schedule. NIG. SEAFARERS COLLABORATING UNIONS v. NUPENG & ANOR. (2013) 31 N.L.L.R. (PT. 88) 84 at 131-132 paras B-B, per Kanyip, J.
It is counsel’s submission that there is therefore sound justification in law for the demarcation of unions into workers unions and senior staff associations as illustrated by this Honourable Court in NUPCE v. KWARA STATE UTILITY BOARD (2007) 9 N.L.L.R. (PT. 24) 193 at 243 paras.
E-G, per Atilade, J.
He maintained that this court has thus remained consistent in its pronouncement on the classification of trade unions into junior and senior staff. NCSU v. ASCSN (2004) 1 N.L.L.R. (PT. 3) 429 at D-G; PERESSA v. SSACGOC (2009) 14 N.L.L.R. (PT. 39)306 at 3241 paras. E-H.
Counsel posing the question: “Who then is junior or senior staff in the 1st Defendant, Nigerian Postal Service?” replied with the authority of NCSU v. ASCSN (Supra) at 487 paras. G-H, per Atilade, J.
