NATIONAL UNION OF ROAD TRANSPORT WORKERS & 3 Ors. -VS- TRICYCLE OWNERS ASSOCIATION OF NIGERIA (TOAN) & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: APRIL 12, 2019 Suit No: NICN/YEN/74/2017

BETWEEN:

NATIONAL UNION OF ROAD TRANSPORT WORKERS (NURTW)
COMRADE MEDRIAL OTOTO

(Chairman, Tricycle Branch, NURTW, Bayelsa State Chapter)

COMRADE PROSPER ALBERT

(Vice Chairman, Tricycle Branch, NURTW, Bayelsa State Chapter)

COMRADE ESEIMOKUMO BOULOZIGHA

(Secretary, Tricycle Branch, NURTW, Bayelsa State Chapter)

(The 2^nd to 4^th Claimants are suing for themselves and as representing

the Tri-cycle Branch of the National Union of Road Transport Workers

(NURTW) Bayelsa State Chapter)

AND

TRICYCLE OWNERS ASSOCIATION OF NIGERIA (TOAN)
HON. GODWIN ADOKEME

(Chairman, TOAN, Bayelsa State Chapter)

COMRADE JOHN T. ALALI

(Task Force Chairman, TOAN, Bayelsa State Chairman)

(For themselves and as representing the Tricycle Owners

Association of Nigeria (TOAN) Bayelsa State Chapter)

REPRESENTATION

Mr. Delime Julius Esq with Ifieni Amery Esq for the Claimants.

Lilian Hycinth Mbaegbu Esq holding the brief of Ndeze Anthony Esq for the Defendants.

JUDGMENT

The Claimants commenced this action by a Complaint dated and filed on the 22^nd day of December, 2017. The Claimants claims against the Defendants are as follows:

A DECLARATION that in the operation of transportation business in Yenagoa Metropolis and its suburbs, no registered Transport Trade Union, including the Defendants has the right to harass, molest, arrest and forcefully convert the registered members of any of the unions to its membership.

A DECLARATION that the continuous harassment, intimidation, molestation and forceful conversion of the duly registered members of the Claimants by the Defendants and their agents is unlawful, illegal, unconstitutional, null and void, and therefore runs contrary to the extant provisions of the Trade Union Law and the Constitution of the Federal Republic of Nigeria.

AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their privies, agents, servants or whosoever acting through them or acting in their behalf from further harassing, intimidating, molesting and forcefully converting the duly registered members of the Claimants to their membership.

Award of General Damages in the sum of N10, 000, 000.00 (Ten Million Naira) only.

The sum of N1, 000, 000.00 (One Million Naira) only as representing the cost of this action.

Accompanying the Complaint were the Statement of Facts, Witness Deposition on Oath, List of Witnesses and the List of Documents to be relied upon at the trial. A Memorandum of Appearance dated the 9^th day of January, 2018 but filed on the 12^th day of January 2018 was entered on behalf of the Defendants by Ndeze Anthony Esq and accompanied same with a Joint Statement of Defence dated the 9^th day of January, 2018 and filed on the 12^th day of January, 2018.

The Claimants, vide a Motion on Notice dated the 2^nd day of February, 2018 sought and obtained the leave of this Honourable court for extension of time to file their reply and defence to Counter-Claim, and to deem the said reply and defence to Counter-Claim as properly filed. Also in the said Motion of 2^nd February, 2018, the Claimants sought and obtained the leave of this Honourable Court to file an additional written address on oaths of Comrade Medrial Ototo and also call two additional witnesses and to file their respective Written Statement on Oaths so as to rely on same during the trial and to deem same as properly filed and served.

The Defendants sought and obtained the leave of this Honourable court to join the Tricycle Owners Association of Nigeria (TOAN), both the Claimants and the Defendants were ordered by this Honourable court to consequentially amend their processes to reflect the order of the Honourable court.

The Defendants filed the consequential amendments of their Joint Statement of Defence on the 24^th day of August 2018. Similarly, the Claimants also filed the consequential amendment of their Complaint and other accompanying processes on the 12^th day of October, 2018. The Defendants also counter-claimed against the Claimants as follows:

A DECLARATION that the Tricycle Owners Association of Nigeria (TOAN), which the 2^nd to 3^rd Defendants/Counter-Claimants are its Bayelsa State Executive Members is a duly registered Trade Union as evidenced in its Certificate of Registration dated the 26^th day of January, 2016.

A DECLARATION that sequel to the registration of Tricycle Owners Association of Nigeria (TOAN), they are empowered to carry on its union activities as per tricycles owners and operations to no other.

AN ORDER OF PERPETUAL INJUNCTION restraining the Claimants, its privies, allies, servants or whatsoever name as they may be called from further usurping the functions of the Tricycle Owners Association of Nigeria (TOAN) which the Defendants represent and belongs to.

AN ORDER directing the Claimants to pay the sum of N500, 000.00 (Five Hundred Thousand Naira) only as special damages being money paid to counsel in defence of this suit.

AN ORDER directing the Claimants to pay the sum of N2, 000, 000.00 (Two Million Naira) only to the Defendants Counter Claimants as general damages and exemplary damages.

At the trial, the Claimant called two witnesses Comrade Medrial Ototo testifying as CW1 on the 25^th day of April, 2018 and cross examined on the 24^th October, 2018. Comrade Chukwuma Nweke testifying as CW2 on the 24^th day of October, 2018 and cross examained on the same date. The Claimants tendered 5 Exhibits (EXHIBITS CW1 NURTW 001, CW1 NURTW 002, CW1 NURTW 003, CW2 NURTW 004, CW2 NURTW 005).

Although the documents accompanying the Statement of Defence showed that the Defendants intended to call 3 witnesses at the trial, at the opening of their defence on the 25^th October, 2018, the Defendants called only one witness DW1 (one Comrade Nwafor Collins) who was cross examined on the same date by Claimant’s counsel. Consequently, it is safe to hold that the statement of other witnesses having not been adopted are discountenanced.

In their defence, the Defendants tendered 4 documents which was admitted in evidence, marked as EXHIBITS DW1 TOAN 001, DW1 TOAN 002, DW1 TOAN 003, DW1 TOAN 004, and thereafter closed their case. This court consequently ordered parties to file their written addresses which were filed and same adopted on the 15^th day of January, 2019.

CLAIMANT’S CASE IN BRIEF

By his Written Deposition, the 1^st Claimant is a registered Trade Union under the Trade Union Act, which activities cut across the various states of the Federation including Bayelsa State, whereas the 2^nd, 3^rd and 4^th Claimants are the Chairman, Vice Chairman and the Treasurer respectively of the Tricycle Branch of the 1^st Claimant, Bayelsa State Administrative Council who are in charge of Tricycle popularly known as Keke. That the Claimants’ powers cover all vehicles including Tricycles Operators/Drivers/Workers who are not owners of same who undertake the transportation of persons and goods by roads. The letter from the Registrar of Trade Union on the jurisdictional scope of the NURTW was tendered in evidence as EXHIBIT CW1 NURTW 001.

The grouse of the Claimants is the Defendants’ continuous harassment, intimidation, arrest and forceful conversion of the members of the 1^st Claimant to the 1^st Defendant’s members under the false cloak and belief that by the sheer registration of the Tricycle Owners Association of Nigeria (TOAN) all operators of tricycles in Bayelsa are within the exclusive jurisdiction of the Defendants, including new and old members of the Claimants. It is also the Claimants case that the Defendants and members of their group harassed, intimidated and unlawfully and illegally forced CW2 to register with the 1^st Defendant and forced their ticket on CW2. The TOAN daily ticket forcefully imposed on CW2 was tendered in evidence as Exhibit CW2 NURTW 004.

The Claimant stated that there were lots of registered Transport Trade Unions operating within the Yenagoa Metropolis, which resulted to unhealthy competition among themselves and in a bid to curb such conflicts the Bayelsa State Government reduced the numbers to only three to wit: the National Union of Road Transport Workers (NURTW), Road Transport Employers Association of Nigeria (RTEAN) and Tricycle Owners Association of Nigeria (TOAN). The Claimants state that as directed by their modus operandi in Bayelsa State, the Claimants undertake the registration of new tricycle members who are (not owners and self employed) but operators and workers who willingly and voluntarily identify with the Claimants for registration as members without engaging in the registration of members that have already been registered with the Defendants’ Union or RTEAN.

The Claimants state that whenever the Defendants sees any commercial tricycle operator in Bayelsa State duly registered with the Claimants with its emblem, and stickers the Defendants would arrest and force such operator to become their member. Despite many efforts to forestall the re-occurrence of such brazen acts of the Defendants and their agents, especially the 3^rd Defendant to stop such illegal and unlawful acts prove abortive and hence the institution of this suit.

During cross examination CW1 reiterated the position that although he doesn’t have anything to show that NURTW is a trade union, there are evidence to show that the members of the 1^st Claimant are being harassed by the Defendants to become their members. Cw2 during cross examination also stated that the members of the 1^st Defendant do harass and intimidate them but he never reported the matter to the police but reported the matter to his union, and the union met with the 1^st Defendant and they all went to the police. The Claimants closed their case on the 24^th day of October, 2018.

THE CASE OF THE DEFENDANTS

The Defendants in their Written Deposition on Oath, averred that the Tricycle Owner Association of Nigeria (TOAN) is a duly registered Trade Union with registration Certificate No 0124 dated the 26^th day of January, 2016 and that the 2^nd and 3^rd Defendants are the duly elected executives members of the Tricycle Owners of Nigeria (TOAN), Bayelsa State Chapter. Its jurisdictional scope covers and oversees all tricycles in operation within the state, hence the voluntary registration of its members with them. And have never coerced, forced or intimidated anyone against his/her will to become its member.

Under cross-examination, DW1 stated that he was once an executive member of NURTW and member of Tricycle Branch of NURTW then. He stated that he joined NURTW around February, 2013 and when he joined NURTW they have no jurisdiction to operate tricycle. He denied that his members have never gone out to issue tickets or attack members of the Claimants. Neither as an exco of TOAN ever gotten any report on the issue of members of the Claimants being attacked.

THE SUBMISSIONS OF THE DEFENDANTS

Learned counsel on behalf of the Defendants formulated two (2) issues for determination to wit:

Whether the Claimants are sequel to their pleadings and all oral and documentary evidences in this case, entitled to the reliefs sought by them.

Whether the Defendants are not entitled to the counter claims as sought by them.

In arguing its issue one, learned counsel to the Defendants submits that the Claimants have failed to establish and prove their case as a cursory look at the reliefs sought by them and the evidences before this Honourable court inevitably affirms same. He argued that the Claimants failed to establish and or prove the alleged molestation, harassment, arrest and forceful conversion of their members, as it is in evidence as duly testified under cross-examination by CW1 & CW2 that they had nothing to show that the Defendants carried out the said alleged acts. They went further to tell the court that they never reported the matter to the police nor made a formal complaint to the Police or any other relevant or appropriate authority. CW2 told this court that he is still a member of the 1^st Claimant till date.

It is the contention of Learned counsel that the allegations as contained in relief one, which gives breath to the entirety of the Claimants reliefs sought before this Honourable court, suggest acts of criminality which their pleadings and evidences fails to establish. Learned counsel argued that the law is clear that he who asserts has the burden of prove. Refers to the case of LONGE V F.B.N PLC (2006) 3 NWLR (PT. 967) 228 and MANI V SHANONO (2006) 4 NWLR (PT. 969) 132 C.A. Compendium of Laws 2^nd Edition Volume 1 @ 666 – 667 and Section 133 of the Evidence Act, 2011.

It is the contention of the Learned counsel that the Claimants have failed to prove the allegations against the Defendants beyond any form of doubt. He argued that the Claimants relief one having not been substantiated, inevitably overtakes and takes away breath and life from the entirety of the reliefs sought urged the court to so hold and dismiss the Claimants case accordingly. Refers to OKIRI V IFEAGHA (2001) FWLR (PT. 73) 140 RATIOS 3 AND 4 AND MOGAJI V ODOFIN (1978) 4 SC 91.

On issue two, whether the Defendants are not entitled to the Counter Claims as sought by them. Learned counsel submit that it is uncontroverted evidence that the 1^st Defendant is a registered trade union as evidenced in Exhibit CW1 TOAN 001 which is regulated by Exhibit DW1 TOAN 002 and which was the basis for its registration by the Registrar of Trade Unions, conferring and unequivocally stating its membership, functions and scope which ordinarily is a pre-requisite for the registration of any Trade Union by the Registrar of Trade Unions of the Federal Ministry of Labour and Employment as accordingly prescribed by the provisions of Section 3 (1) & (6), Section 4 (1) of the Trade Unions Act.

Learned counsel argued that the Defendants have clearly pleaded and led evidence to the fact that 1^st Defendant being a registered trade union has the jurisdictional scope over Tricycle Owners and Operators as empowered by its constitution (rules) and duly so approved by the Registrar of trade unions which is copiously provided for under Rules 3 (objective of the union) and Rule 4 (membership). Learned counsel submit that sequel to the above, the objective and membership of the 1^st Defendant is unambiguous having been registered. He submit that sequel to Section 73 of the Evidence Act the court can take judicial notice that associations wanting to become trade unions (which in this case is an existing trade union), choose their names in a manner reflecting or suggestive of their catchment areas. Refers to UDOH Vs. O. H. M. B (1990) 4 NWLR (PT. 142) 52.

It is the contention of Learned counsel that the Defendants via DW1 testified that the 1^st Defendant which 2^nd and 3^rd Defendants are her Bayelsa State Executive members, by its jurisdictional scope covers and oversees all Tricycles Owners, this evidence was never controverted under cross-examination. DW1 further testified that same was the reason himself and others registered with the 1^st Defendant and the Defendants have never forced or coerced anybody to join their union.

Learned counsel submit that the Claimants tendered Exhibits NURTW 001 which it claimed spelt out their jurisdictional scope, but which never stated the jurisdictional scope of the Defendants which shows that the scope of the Defendants were never sought or requested to be given, this was corroborated under cross examination when CW1 told the court that the EXHIBIT CW1 001 never requested for the jurisdictional scope of the 1^st Defendant. He further submit that EXHIBIT CW1 NURTW 002 is self explanatory as the court held that the KORAN was not a registered trade union and cannot act as such. The 1^st Defendant as a registered trade union was never a party to the said suit.

It is the submission of Learned counsel that EXHIBIT CW1 NURTW 003 is a proof of the Claimants illegitimacy, the Claimants have no constitution (rules) as claimed and the constitution which is a pre-requisite for the registration of a trade union for the purpose of determining the scope of an intending union by Registrar of trade unions. The Claimants have testified that the 1^st Claimant was introduced few years ago cannot be over emphasized, and further shows the legitimacy of EXHIBIT DW1 TOAN 001 & EXHIBIT DW1 002. He submit that EXHIBIT CW1 003 does not exist, as same being an alleged amended rules, runs contrary to the provisions of Section 29 (1) of the Trade Unions Act.

A look at Exhibit CW1 003 shows that same is incurably at variance with the above stated section, a fact which was further corroborated by CW1 under cross examination when he told this court that EXHIBIT CW1 NURTW 003 was an amended constitution but bears no attestation or approval from the Registrar of Trade Unions especially or any official of the Federal Ministry of Labour and Employment. Exhibit CW1 NURTW 003 does not exist or have any legal force or backing, same having not been approved and or registered accordingly. Refers to Section 29 (3) of the Trade Unions Act. He submit that Exhibit CW1 NURTW 003 is in conflict with this statutory provision hence its illegality and by effect non existence. Refers to the case of NIGERIA CIVIL SERVICE UNION V ESSIEN (1985) 3 NWLR (PT. 12) 306.

Counsel argued that contrary to the illegal document paraded by the Claimant as EXHIBIT CW1 NURTW 003 the Defendants have a legal document in EXHIBIT DW1 TOAN 002 which clearly spells out their objectives and membership as duly recognized, approved and registered by the appropriate body (The Federal Ministry of Labour and Employment) via the Registrar of Trade Unions.

Finally, learned counsel submits that the Defendants have proven their Counter Claims and urged the court to grant the Defendants their Counter Claims in its entirety accordingly.

SUBMISSION OF THE CLAIMANT

The Claimants in their Final Written Address, raised the following issues for determination by this court:

Whether sequel to the purported registration of the 1^st Defendant as a Trade Union on the 26^th day of January, 2016, the 1^st Defendant has the exclusive jurisdictional scope to control, regulate and manage the affairs of all Tricycle Workers, Employer/Riders and or Operators in Nigeria, and in particular Bayelsa State to the exclusion of the Claimants?

If question 1 above is resolved in the negative, whether the Claimants have proved their case on a preponderance of evidence to be entitled to reliefs 2, 3, 4 and 5 sought as per the complaint?

iii. Whether the counter claim of the Defendant/Counter Claimants discloses any reasonable cause of action against the Claimants?

In his argument on the first issue, the Claimant’s counsel submitted that the above question is in the negative. It is the law that where issues in the pleadings are not in contention, the parties are not required by law to adduce evidence in proof of it. Where the facts as to the existence of a state of affairs are shown to have been admitted by the parties in their pleadings, no further evidence is required in respect of the issues admitted and the court is duty bound to act upon it. He relied on the case of LAWANI & ANOR VRS. MRS RISIKATU GRILLO & ORS (2018) LPELR – 44914 (CA). He submits that it is also the law that facts which the courts are required to take judicial notice need no further proof. Refers to the cases of ULI MICRO FINANCE BANK NIGERIA LTD Vs. ANYASOR OKECHUKWU M (2018) LPELR – 44956 (CA), SECTION 122 (2) of the EVIDENCE ACT 2011, NWANKWO & ORS Vs. YARADUA & ORS (2010) 12 NWLR (PT. 1209) 518, ADO IBRAHIM & CO LTD Vs. BENDEL CEMENT CO LTD (2007) 15 NWLR (PT. 1058) 528 amongst others.

Learned counsel contends that the 1^st Claimant is a registered Trade Union and which jurisdictional scope extends to all workers engaged in the transportation of persons and goods by road are facts which this Honourable court is bound by law to take judicial notice of. Refer to the Third Schedule, Part B, Item 16 of the Trade Union Act, Cap. T. 14 LFN, 2004. He argued that by virtue of Article 3 (9) of the EXHIBIT CW1 NURTW 003, that by the constitution of the 1^st Claimant, the 1^st Claimant is empowered to organize tricycle operators through the Federation of Nigeria. That in pursuance of this objective, the 1^st Claimant created the Tricycle Unit/Branch to cater for Tricycle Riders/Workers/Operators in its union. Refers to Article 3 (9) of EXHIBIT CW1 NURTW 003. He submit that the status and jurisdictional scope of the 1^st Claimant has not been altered which extends to all workers engaged in the transportation of passengers and goods by road, including tricycle owners. This position was confirmed in a recent letter addressed to the State Controller, Federal Ministry of Labour and Employment, Akure by the Registrar of Trade Unions which said document was admitted as EXHIBIT CW1 NURTW 001. He contends that DW1 (Mr. Nwafor Collins) admitted under cross examination that he was a member of the 1^st Claimant and that the 1^st Claimant has already created a branch of the tricycle of which DW1 was the assistant secretary before DW1 left the 1^st Claimant in 2016. He submit that if the 1^st Defendant’s jurisdictional scope covers all tricycle operators in Nigeria, to the exclusion of the 1^st Claimant, and other trade union like RTEAN who are engaging in the transportation of persons and goods by road, then EXHIBITS DW1 TOAN 001 and DW1 TOAN 002 would have expressly stated so.

Counsel states that the law is that where a document is clear, the operative words in it are to be given their simple and ordinary grammatical meaning. A document duly pleaded and tendered once admitted is the best evidence of its content and therefore speaks for itself. Refers to RICHARD IDOWU AKANMODE & ANOR Vs. MELAYE DANIEL DINO & ORS (2008) LPELR – 8405 (CA) (PP. 31 – 32) PARAS E – A; IKEMEFUNA & ORS Vs. OBIORA ILONDIOR & ORS (2018) LPELR – 44840 PG 18 PARAS D – E. He submits that the name of the 1^st Defendant speaks for itself and it goes to reinforce the clear intention of the Registrar of trade union, who conscious of the fact that the 1^st Claimant jurisdictional scope covers all workers/passengers engaged in the transportation of persons and goods by road, registered the 1^st Defendant. He contends that it is not the place of the Defendants to ascribe meaning and functions to themselves as none exist from the nature of EXHIBIT DW1 TOAN 001 and EXHIBIT DW1 TOAN 002. The name of the 1^st Defendant as can be gleaned from EXHIBIT DW1 TOAN 001 is called Tricycle Owners Association of Nigeria implies is a union of tricycle owners who are self employed and therefore it falls under the category self–employed workers contemplated under the Third Schedule, Part B, Item 16 of the Trade Union Act. He submits to read otherwise will be tantamount to promoting industrial disharmony, which runs contrary to the intention why the Registrar of Trade Unions actually registered the 1^st Defendant as a trade union. Refers to the provisions of Rule 3 Sub Rule 1 of EXHIBITS DW1 TOAN 002 which refers to Tricycle Owners Association of Nigeria as the name implies and not all workers/employers as erroneously postulated by the Defendants. A combine reading of EXHIBIT DW1 TOAN 001 and EXHIBIT DW1 TOAN 002 reveals that the union of workers/employers as referred to in EXHIBIT DW1 TOAN 001 is specifically referring to workers/employers who are owners of tricycle in Nigeria and not otherwise.

The Supreme Court has emphasized in a plethora of cases for courts to interpret words in a document based on their ordinary meaning. Refers to FIRST BANK OF NIGERIA PLC & ORS Vs. ALHAJI SALMANUMAIDA & ORS (2012) LPELR.

It is the contention of learned counsel that if the purpose of the formation of the 1^st Defendant was to organize, regulate and promote the business of all tricycle owners, operators and riders in Nigeria, the name would have been clearly reflected and presumably read: Tricycle Owners and Riders Association of Nigeria and not Tricycle Owners Association of Nigeria, and the Registrar of Trade Union would not have registered the 1^st Defendant. Refers to GEORGE IKELI & ANOR V TERUNGWAR AGBER (2014) LPELR – 22653 (CA) PP. 34 – 35 PARAS F – A. He submit that assuming without conceding that the jurisdictional scope of the 1^st Defendant also extends to workers/employers who are not only self–employed as reasonably contemplated under the Third Schedule, Part B, Item 16 of the Trade Union Act, the law frowns at the registration of a trade union to represent workers or employers in a place where there already exists a trade union with similar objectives. Refers to Section 3 (2) of the TRADE UNION ACT, ERASMUS OSAWE & ORS V REGISTRAR OF TRADE UNIONS (1985) LPELR – 2792 (SC). He submits that the purport of the above provision and case is to uphold the interest of peace, order and industrial harmony.

Learned counsel submit that the expression “all workers engaged in the transportation of passengers and goods by road” as used in the Trade Union Act gives the Claimants the latitude to create branches/units of the various means of transportation by road. This court lacks the jurisdiction to deviate from the ordinary grammatical meaning of the expression “all workers engaged in the transportation of passengers and goods by road.” If the intendment of the law was to strip the 1^st Claimant of its control over tricycle by virtue of the 1^st Defendant coming into existence, then it would have so stated in EXHIBIT CW1 NURTW 001. He submits that the law is trite that the question of the interpretation of a document is a matter of law and one of the cannons of interpretation is that words used in a document must be given effect and no word must be added or subtracted or ignored. The whole document must be considered in totality and not in isolation so as to ascertain the intention of the parties. He relied on several authorities including AFROTECH SERVICES NIG LTD Vs. M.A & SONS LTD & ANOR (2002) 12 SCNJ 298, ADETOUN OLADEJI NIG LTD V NIGERIAN BREWERIES PLC (2007) 1 SCNJ 375, PARAS F – A, amongst others. And urged the court to resolve issue one in favour of the Claimants.

On his issue two, learned counsel to the Claimant submit that if issue one is resolved in the negative, for the Claimants to be entitled to the reliefs 2, 3, 4 and 5 then the burden of proof would lie on the Claimants. It is an elementary principle of law that in civil matters the burden of proof generally lies on the Claimant. Refers to the case of MRS ETHEL ONYEMAECHI DAVID ORJI V DORJI TEXILES MILLS (NIG) LTD (2009) LPELR 2766.

Learned counsel submit that considering the pleadings of both the Claimants and the Defendant vis-a-vis the evidence before this Honourable court the Claimants have discharged burden of proof and therefore entitled to the reliefs sought as per the complaint. This is predicated on the fact that the Claimants alleged in their Statement of Facts as well as the Reply and Defence to Counter Claim that the Defendants particularly the 3^rd Defendant harassed, intimidated, molested and forcefully converted duly registered members of the 1^st Claimant to the 1^st Defendant. This fact is not specifically denied in the Defendant’s pleadings. Rather what is contained in the Defendants’ Joint Statement of Defence is a defence and justification to their brazen acts of illegality, oppression and forceful conversion of the members of the 1^st Claimant. He referred the court to paragraphs 12, 13 & 14 of the Claimant’s Statement of Fact dated and filed on the 12^th day of October, paragraphs 2 (e) and (f) of the Claimants’ Amended Reply and Defence to Counter-Claim.

Learned counsel submit that paragraphs 14 and 15 when read together would reveal that the Defendants have admitted that they have rights to arrest any tricycle operator in Bayelsa State pursuant to EXHIBIT DW1 TOAN 001 and DW1 TOAN 002. He contend that the evidence of CW2 that the 3^rd Defendant arrested him and forced EXHIBIT CW2 NURTW 004 on him is not in any way denied by the Defendants, and the 3^rd Defendant was not called to deny such allegation. He submits that under cross examination DW1 admitted that he does not go out to the road, and that his members informed him that nobody was arrested or molested amounts to admission of the evidence of CW2. It is trite law that an admission in pleadings basically puts an end to proof. Refers to AKANINWO & ORS Vs. NSIRIM & ORS (2008) LPELR 321 (SC) P 50 PARAS D – E. The submissions of Learned counsel for the Defendants to the effect that the issue of arrest and forceful registration of CW2 by DW1 was not reported to the police is grossly misconceived and submit that it was predicated on the facts of the Defendants, particularly the 3^rd Defendant that the Claimants instituted this action so as to bring industrial harmony in the transport system and urged the court to grant reliefs 2, 3, 4 and 5 as prayed.

On his issue three learned counsel submit that gleaning from paragraphs 1 to 16 of the Joint Statement of Defence, which the Defendants adopted as their Counter-claim do not disclose any reasonable cause of action against the Claimant. There is no where in the Defendants’ pleading which the Defendants have alleged a particular wrong committed by the Claimants against them. It is trite law that for a court of law to possess the jurisdictional vires to entertain a cause or action brought by a party same must disclose a reasonable cause of action against the Defendant. He referred the court to the cases of SPEDC NIG LTD & ANOR VRS X.M FEDERAL LTD & ANOR (2006) LPELR – 3047; BARBUS & COMPANY NIG. LTD & ANOR VRS. MRS GLADYS OYIBOKA OKAFOR – UDEJI (2018) LPELR – 4450. He submit that nothing show that the counter claim disclose any reasonable cause of action, which entitled the Defendants/Counter Claimants to the reliefs sought and urged the court to strike out the Defendants/Counter-Claimants’ case for want of jurisdiction.

Finally, Learned counsel urge the court to resolve all the issues in favour of the Claimants and dismiss the counter – claim, being that same does not disclose any reasonable cause of action against the Claimants.

DEFENDANTS’ REPLY ON POINTS OF LAW

The Defendants filed a Reply on Points of Law dated and filed on the 15^th day of January, 2019. The Learned counsel to the Defendants argued in the reply to issue one that the Claimants cannot seek for declarations and or prayers not sought in their pleadings and in this case their complaint, as a combine reading of the reliefs sought are at variance with the submissions and reliefs sought in the claimant counsel’s final address which is irreparably at variance with the elementary principle of law that parties are bound by pleadings and that prayers not sought by parties cannot be granted. Refers to the case of I.N.E.C Vs. ATUMA (2013) ALL FWLR PT 697 @ 640 – 741. He submit that the Claimants never contested or sought to challenge the jurisdictional scope of the Defendants or sought the declaration of this court to that effect, hence the address and or submissions of counsel cannot be a basis to seek same and the issues canvassed in the Claimants final address cannot take the place of their pleadings and reliefs sought and urged the court to discountenance issue one. Refers to BOSMA VRS. AKINOLE (2013) ALL FWLR PT 708 @ 935 CA.

On issue two, Learned counsel submit that the Claimants have failed to prove their case sequel to the burden placed on them by law. The case of the Claimants as sought in their reliefs is anchored on the alleged harassment, intimidation, molestation and forceful conversion of their duly registered members which is a criminal coloration or deduces the commission of an offence which must be proven beyond reasonable doubt. Refers to OLADIMEJI VRS. STATE (2000) FWLR PT 131 @ 2004 RATIO II; SECTION 138 (i) of the Evidence Act. He submits that the Claimants have failed to prove this fundamental principle of law. He contends that the mere testimony that the Defendants harassed and forced members of the Claimants with no evidence of reporting same to the constitutionally empowered authorities to investigate same is fundamental and goes to the root of the Claimants case and urged the court to so hold and discountenance this issue as canvassed by the Claimant counsel.

On issue three, Learned counsel submit that the submission of the Claimants counsel that the Defendants Counter Claim discloses no cause of action is misconceived as counsel cannot be blowing hot and cold. Refers to BARBUS & COMPANY NIG LTD & ANOR Vs. MRS GLADYS OYIBOKA OKAFOR – UDEJI (2018) LPELR – 4450: He submits that the Defendants’ Counter Claim discloses a reasonable cause of action which they have established pursuant to Section 3 (6) and Section 4 (i) of the Trade Union Act and EXHIBIT DW1 TOAN 002, contrary to EXHIBIT CW1 NURTW 003 which is by law a non existing document which cannot be relied upon pursuant to the provisions of Section 29 (3) of the Trade Unions Act, same being an altered constitution falling short of the requirement of same.

Finally, he submits that the Claimants have failed in proving their case and urged the court to so hold.

COURT’S DECISION

I have carefully and thoughtfully read through all the processes filed by Learned Counsel for and on behalf of the parties in this suit. I have listened to the witnesses who testified under oath and also observed their demeanours and I have judiciously evaluated the exhibits tendered and admitted by this court. I have also heard the Oral Submissions of the Learned Counsel for the parties on the issues raised and I distilled the issues for determination raised by parties as follows:

Whether the Claimants sequel to their pleadings including Oral and Documentary Evidence have proved their case on a preponderance of evidence to be entitled to the reliefs sought.

Whether the Defendants are not entitled to the Counter Claims as sought by them.

On the first issue of whether the Claimants sequel to their pleadings including Oral and Documentary Evidence have proved their case on a preponderance of evidence to be entitled to the reliefs sought. One of the principal canons of interpretation of the Constitution is that all its provisions must be construed without ambiguity. Its provisions ought to be given meaning and interpretation even with the imperfection of the legal draftsman. See the case of OWENA V. NSE LTD (1997) 8 NWLR PT.515.

The Court of law is without power to import into the meaning of a word, clause or section of the Constitution or Statute what it does not say. Where the provisions of a statute are clear and unambiguous effects should be given to them as such unless it would be absurd to do so having regard to the nature and circumstance of the case.

The germane issue before this Court over which Parties have made vigorous submissions is whether the provisions of ‘Paragraph 8, First Schedule of the Trade Union (Amendment) Act’ runs foul or is inconsistent with section 40 of the Constitution which allows for or guarantees fundamental rights to peaceful assembly and association. That point having been made, it is important to give insight into the relevant provisions of the Constitution and the Trade Union (Amendment) Act. Section 40 of the 1999 Constitution reads:

“Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.

Provided that the provision of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which the commission does not accord recognition.”

Thus the right to freely associate is unfettered except with regard to political parties not accorded recognition by the Independent National Electoral Commission (INEC). It is the right of every citizen to decide which association or group of persons are in the best position to protect his interests. No association or group of persons can arrogate to itself the authority to make that determination on behalf of another. See the case of ABUBAKAR VS A. G. FEDERATION (2007) 3 NWLR (1022) 601 AT 638 B – G

On the other hand, Paragraph 8, First Schedule of the Trade Union Act states that:

“The qualifications for membership of the trade union which shall include a provision to the effect that such a person shall be normally engaged in the trade or industry or elected or appointed to represent workers’ interest in the said trade or industry”.

Having regards to the facts of this case and on the basis of the issue sought to be determined, I am inclined to look at the provisions of section 45(1)(a) of the 1999 Constitution which provides thus:

“Nothing in sections 37, 38, 39, 40 and 41 of the constitution shall invalidate any law that is reasonably justifiable in a democratic society –

(a) In the interest of defence, public safety, public order, public morality or public health; …

The rights provided for by section 40 is not absolute by virtue of the restrictions in section 45(1) (a) of the Constitution and it cannot undermine a law that is reasonably justifiable in a democratic society especially for the interest of public order and sanctity.

It is trite law that to ascertain if a law is reasonably justifiable in a democratic society, the Court has to consider the circumstance in which the law was enacted, the mischief it was aimed at preventing and the aims and objectives of the law. It is not doubtful that the Trade Union (Amendment) Act is a law that is reasonably justified in our current democratic society and both the 1^st Claimant and the 1^st Defendant are Trade Unions registered and recognized under the Trade Union Act by virtue of item 16, Third Schedule, Part B of the Trade Unions Act and EXHIBIT DW1 TOAN 002 respectively.

It is common knowledge that the Federal Military Government had, because of the proliferation of trade unions with divergent aspirations and objectives, regrouped and reorganized trade unions in Nigeria reducing their number to 71 (currently they are 29) from a stunning 800 and upon which the Trade Union (Amendment) Decree was promulgated in 1978. These Trade Unions and their jurisdictional scopes are still relevant. See the Third Schedule, Part A and B of the Trade Union (Amendment) Act, 2005.

By that exercise, the Nigerian Government brought order and sanity to the trade union movement of this country and I do not think it will be in the interest either of the unions or the country at large to re-introduce a free for all in the Trade Union Movement using the provisions of Section 40 of the constitution or section 12(4) of the Trade Union (Amendment) Act as a shield. See the case of DPP VRS CHIKE OBI (1961) ALL NLR 186; HEALTH PRACTITIONERS & 2 ORS VRS MED & HEALTH WRKS. & ORS. (2008) 1 S.C. (PT. III) 1.

Paragraph 8 of the First Schedule is one of the requirements which the Rules of a Trade Union must contain before registration and should be so provided, for the reasons aforementioned. Section 12(4) of the Trade Union (Amendment) Act is clear and unambiguous. Its legislative intent of section 12 of the Trade Union (Amendment) Act is to allow for the registration of a person who is eligible to join a particular trade union without discrimination and that the willingness to join should be without any force or coercion whatsoever. The key phrase therein is “eligibility for membership”, which is what the Act through the provision of paragraph 8, First Schedule of the Trade Union (Amendment) Act demands of Trade Unions to include in their rules to help ascertain those who are eligible to be members of the particular Trade Union.

That said, the reason why the Claimants instituted this action against the Defendants is for this court to make a declaration that in the operation of transport business in Yenagoa Metropolis and its suburbs the Defendants have no right to harass, molest, arrest and forcefully convert the registered members to its membership. And for this court to grant a declaratory relief in their favour by declaring the act of the Defendants of molesting, harassing and intimidating the members of the Claimant as unlawful, illegal, unconstitutional, null and void and runs contrary to the extant provisions of the Trade Union Law and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and also to issue a perpetual injunction against the Defendants from further exhibiting such acts against the Claimants.

Its trite that in civil cases the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities. See LONGE VRS F.B.N (2006) 3 NWLR (PT. 967) 228; DAODU VRS N.N.P.C (1998) 2 NWLR (PT. 538) 355 SC. The Claimants in this case in paragraphs 3, 12, 13, 15 of their Statement of Facts alleged that they brought this action against the Defendants because of the Defendants’ illegal acts of harassment, intimidation, molestation forceful arrest and conversion of the members of the 1^st Claimant to the 1^st Defendant. From the pleadings filed by the Claimants and reliefs one and two, one can see that same has imputation of crime or deduces the commission of an offence which must be proven beyond reasonable doubt. In other words imputation of crime requires higher degree of probability for its proof. See DURBAR HOTEL LTD VRS KASABA UNITED LTD. (2017) 2 NWLR (PT. 1549); FAMUROTI VRS AGBEKE (1991) 5 NWLR (PT. 189) PG 1.

From the evidence adduced by the Claimants through CW1 and CW2, CW1 in both his Written Deposition on Oath and under cross examination alleged that the Defendants do harass, intimidate and arrest members of the 1^st Claimant with a view to force them to be members of the 1^st Defendant but has not placed any cogent and verifiable facts to prove this assertion. Cw2 who alleged that he was arrested, intimidated, harassed and was also forced to buy a ticket on 8^th December, 2017 which is meant for members of the 1^st Defendant (EXHIBIT CW2 NURTW 005) despite the fact that he is a member of the 1^st Claimant as shown in EXHIBIT CW2 NURTW 004, But under cross examination told this court that he has not reported the incidence to the Police but only notified the Executives of the 1^st Claimant who also did not report the matter to the Police. To make issues worse, CW2 informed this court under cross examination that he signed his Witness Deposition on Oath at the 1^st Claimant’s office. From all these facts one can see that the Claimants having impute the issue of crime in this matter, same requires a higher degree of probability for its proof. See DURBAR HOTEL VRS KASABA UNITED LTD (SUPRA). And the Claimants having failed to meet such required standard of proof. The main claim of the Claimants failed. And the main claim having failed, the ancillary claims (Reliefs 2 – 5) which are ancillary to the main claim can not stand.

I therefore resolved the first issue in favour of the Defendants and hold that the Claimants were unable to prove their claims as such they are not entitled to the reliefs sought.

On the second issue of whether the Defendants are not entitled to the counter claims as sought by them. On the authorities, it is an established principle in our jurisprudence that a counter claim is a distinct action by the Defendant against the Complainant which is independent and separate from the original/main claim. It has a distinct existence and demands the same respect as the original suit/action. See ALHAJI U. DAN HAUSA & CO LTD VRS PANATRADE LTD (1993) 6 NWLR (PT. 298) PG. 204; AIR VIA LTD VRS. ORIENTAL AIRLINES LTD (2004) 9 NWLR (PT. 878) PG 298. The roles of the parties therefore switch and the Counter Claimant is given the opportunity to prove his claims on the preponderance of evidence. The Counter Claimant, as is required under our civil jurisprudence, most succeed on the strength of its evidence and not on the weakness or failure of the Defendant’s case. See HENSHAW VRS EFFANGA & ANOR (2009) 11 NWLR (PT. 1108) PG. 507.

That said, after reviewing the circumstances of the case before me, the pleadings and evidence led in support, it is crystally clear that the Counter Claim filed by the Defendants/Counter Claimants all borders on declaratory reliefs. And the purpose of declaratory action is essentially to seek an equitable relief in which the plaintiff prays the court in the exercise of his discretionary jurisdiction to pronounce, or declare an existing state of affair in law, in his favour as may be discernible from the averment in the Statement of Claim. See AKANDE VRS ADISA (2012) 15 NWLR (PT. 1324) PG 538 SC.

Although declaratory reliefs are discretionary remedy which can be granted by the court, the exercise of the discretion is subject to well defined conditions and must be exercised sparingly and with a proper sense of responsibility. See ADESINA VRS OJO (2012) 10 NWLR PG 552. A critical look at the Counter Claim gleaning from paragraphs 1 to 16 of the Joint Statement of Defence, which the Defendants adopted as their Counter Claim do not disclose any reasonable cause of action against the Claimants. There is no where in the Defendant’s pleadings where the Defendants have alleged a particular wrong committed by the Claimant against them. And it’s a trite law that for a court of law to possess the jurisdictional vires to entertain a cause of action brought by a party same must disclose a reasonable cause of action against the Defendant.

The term cause of action means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third person. It means every fact which is material to be proved to entitle the plaintiff to succeed. See CHARLES VRS GOV, ONDO STATE (2013) 2 NWLR PG 294.

Having said this its my ardent view that the Defendants/Counter Claimants’ action failed to disclose any reasonable cause of action against the Claimants and also has failed to led evidence to prove same. And same is hereby dismissed.

I resolved the second issue in favour of the Claimants and hold that the Counter Claim failed to disclosed any reasonable cause of action against the Claimants and same is hereby dismissed. And I so hold.

Let me briefly comment on the nature and the processes filed by the respective parties. The gamut of this case is all centered on the delineation of the jurisdictional scope of both parties as to who is to unionise the operation of Tricycles in Bayelsa State. Whether that responsibility is the exclusive rights of the 1^st Defendant or that both the 1^st Defendant and the 1^st Claimant shares the same right. And from the pleadings filed both parties failed to plead these issues, But rather choose to argue same in their Final Written Addresses. And its trite that written address no matter how brilliantly couched cannot take the place of pleadings. See UCHA VRS ELECHI (2012) 13 NWLR (PG 330) SC; OLATUNJI VRS WAHEED (2012) 7 NWLR PG 24; AYORINDE VRS SOGUNRO (2012) 11 NWLR PG 460 SC. And this court both as a court of law and court of justice can not on its profolic move decides issues which are not before the court.

Finally, for the avoidance of doubt both the main claim and the counter claim fail.

Parties are to bear their respective costs

Ruling is hereby entered accordingly.

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HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE