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NIGERIAN UNION OF TEACHERS KEBBI -VS- IBRAHIM GARBA & 7 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

 

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON FRIDAY THE 12TH TH DAY OF OCTOBER, 2018

 

SUIT NO.NICN/KN/17/2015

BETWEEN

NGERIA UNION OF TEACHERS

(KEBBI STATE WING)……………….……………….………………………….……… CLAIMANT

AND

  1. IBRAHIM GARBA
  2. KUDU ABUBAKAR
  3. SANI MATSERI
  4. MAINASARA DAN ABASHE
  5. MUH’D LAWAL
  6. ISAH ADAMU GULUMA

7.SHEHU BAGUDU                                ……………………………………………… DEFENDANTS

  1. INCORPORATED TRUSTEES OF

CONFERENCE OF SECONDARY

SCHOOL TUTORS (COSST)

ALSO KNOWN AS ACADEMIC STAFF

UNION OF SECONDARY SCHOOL (ASUSS) KEBBI

STATE CHAPTER

 

REPRESENTATION

P.O. Oshoture with S.O. Omora for claimants

Garba Abubakar Shehu for defendants

JUDGMENT

  1. INTRODUCTION

This judgment centers on which of the parties before this Court is entitled to the check-off dues deducted from the salaries of Secondary School Teachers in Kebbi State between January 2007 and September, 2013.

The claimant sued the 1st to 7th defendants before this Court on 4/9/2015 at Kano Judicial Division before same was transferred to the Sokoto Judicial Division. The suit is accompanied by all the necessary documents required by the Rules of this Court.

The defendants filed their statement of defence on 21/9/2015.

The claimant, by leave of Court joined the Incorporated Trustees of Secondary School Tutors (COSST) as the 8th defendant.

The claimant seeks from the defendants the following reliefs;

  1. An order commanding the defendants to give account of all the monies they received as check-off dues from the month of January 2007 to the month of October 2013 when the Kebbi State Government stopped the payment of check-off dues to them.
  2. An order for the defendants jointly and severally to pay all the monies found to have been collected by them as check off dues from January 2007 to October 2013, to the claimant.
  3. Cost of this action

The extant processes before the court are the claimant’s amended complaint dated and filed on 29/11/2017, the defendants’ further amended statement of defence dated and filed on 21/2 /2018 and the claimant’s reply dated and filed on 20/4/2018. Witnesses were heard on 10/7/ 2018 and 20/7/ 2018. Both counsel adopted their final written address on 27/9/2018.

  1. RELEVANT FACTS

The defendants sued the claimant as 1st respondent, Ministry of Education Kebbi State as 2nd respondent and the Attorney General of Kebbi State as 3rd respondent for the enforcement of their Fundamental Human Rights at the Kebbi State High Court in suit No.KB/HC/M.86/2006.The Kebbi State High Court in a judgment dated 16/3/2007 granted the prayers of the defendants, then plaintiffs. In particular, reliefs 3,4 and 5 read as follows:

  1. That applicants having formed Conference of Secondary School Tutor, (COSST) are entitled to receive their check-off dues from the 2nd respondent monthly and in perpetuity and that same shall not be remitted to the first respondent
  2. That from the date of service upon the respondent of notice of withdrawal of membership, applicants as Conference of Secondary School Tutors (COSST/ASUSS)are entitled to receive their check-off dues; and
  3. That pursuant to 4 above, the 2nd respondent is hereby ordered to remit forthwith to (COSST/ASUSS) amounts standing to their credit as check-off dues from the date of service of notice of withdrawal of membership from the 1st respondent.

Aggrieved by the said judgment, the claimants, then 1st respondent, appealed to the Court of Appeal Sokoto Division in Appeal No. CA/S/48/2010. The court of Appeal in its judgment dated 19/5/2015 allowed the appeal and ordered as follows;

”That the judgment of the lower court delivered on 16th day of March, 2007 in suit NO.KB/HC/M.86/2006 is hereby set aside”.

The claimant then instituted this suit claiming from the defendants for an account and refund of check- off dues they received pursuant to the judgment of the Kebbi State High Court delivered on 16/3/2007 in suit No.KB/HC/M.86/2006 which claimant claims should be rightly paid to it by reason of the judgment of the Court of Appeal Sokoto Division in Appeal NO.CA/S/48/2010 setting aside the said judgment of the Kebbi State High Court.

The defendants on the other hand contend that the monies were not collected on behalf of the claimants and so they are not obliged to give any accounts; moreso, that the Court of Appeal did not in its judgment, order them to refund the said check off dues, but rather recognized their right not to be coerced into any association.

3.CASE OF THE CLAIMANTS

The claimant’s 16 paragraph amended statement of facts is accompanied by the witness statement of Mallam Isa Umar Arzika, he is the chairman, NUT Kebbi state wing, he testified as CW1 on 10/7/2018.  His witness depositions are materially in line with the claim. His testimony is to the effect that sometimes in 2006, the defendants sued the claimants to withdraw from the claimant and the Court granted the prayers on 16/3/2007. Before then the Court had ordered that the check off dues be paid into Court pending judgment and the claimants started paying the check off dues into Court. That in spite of an appeal and an application for injunction, the High Court ordered execution and since then until October, 2009, all check-off dues were paid to the defendants through the registrar of the Court and they were given receipts by the registrars.(exhibits CWA1-CWA25). That the Court of Appeal determined the appeal in their favour on 19/5/2015 and the defendants have not appealed against the judgment of the Court of Appeal. That the 1st to 7th defendants received the check-off dues on behalf of the 8th defendant without right as the 8th defendant is not a registered Trade Union. That the defendants have refused to render accounts and make refunds of the collected check-off dues to the claimants.

Under cross examination, CW1 testified that Alhaji Chika is alive and was the NUT accountant who remitted most of the check-off dues to the Kebbi State High Court, particularly exhibits CWA4 to CWA25.That there are some payments that the High Court did not give us receipts and there are some receipts that got lost in our custody. I do not have any evidence to show that the High Court transmitted the money to COSST. NUT Kebbi State never at any time mandated the defendants to collect check-off dues on its behalf.

CW1 tendered 5 documents in evidence which were admitted and marked as follows;

  1. Receipts of check off dues remitted through the registry of Kebbi State High Court by the claimant’ treasurer. = Exhibit CWA1 -CWA25
  2. Judgment order of Kebbi State High Court in suit NO.KB/HC/M86/2006 dated 16/3/2007 = Exhibit CWB
  3. Judgment order of Court of Appeal Sokoto in appeal NO:CA/S/48/2010 dated 19/5/2015 = Exhibit CWC

4.Judgment of National Industrial Court of Nigeria in suit NO:NICN/KN/14/2015 dated 25th January, 2018 =Exhibit CWD

  1. Judgment of National Industrial Court of Nigeria in suit NO: NICN/KN/14/2016 dated 25th January ,2018 =Exhibit CWE

The claimant had filed a reply to the defendant’s amended statement of defense but this reply has no witness depositions.

4.CASE OF THE DEFENDANTS

The defendants 15 paragraph further amended statement of defense is accompanied by the witness statement of Ibrahim Garba, the 1st defendant, he testified as DW1 on 20/7/2018.  His witness depositions are in line with the statement of defense. His testimony is to the effect that the defendants and all secondary school teachers in Kebbi State have never applied to be members of the claimant. That the secondary school teachers resolved to and withdrew their forced membership by writing withdrawal list to the claimant signed by the teachers.(exhibit IG.1) That the said withdrawal list was served on the former secretary of the claimant but he rejected service on 19/6/2006.That each individual teacher served letters on relevant authorities in Kebbi State. That the defendants and secondary school teachers were not recognized by the Kebbi state Government and continued to deduct their check off dues thus their suit at the High Court for which he and the other defendants   were mandated by the secondary school teachers. (the mandate forms are  exhibit IG.2) That the High court ordered that the check off dues be kept with the Ministry of Education pending determination off suit number KB/HC/M86/2006 and were never paid to the defendants. That the defendants did not collect money from January 2007 from the Registry of Kebbi State High Court and even the various sums they collected were collected on behalf of COSST as indicated in the Court Order and the amount collected is not even close to the amount the claimant is claiming. That the judgment of the Court of Appeal in appeal NO:CA/S/48/2010 did not contain any order directing the refund of any amount to the claimant. That all the defendants acted for themselves and on behalf of COSST and the claimant has no legal or moral right to collect check-off dues of any secondary teacher who has withdrawn his membership and gave mandate to the defendants as executive members of COSST/ASUSS.

 

Under cross examination, DW1 testified that it was because of the judgment of the High Court that they started collecting check-off dues. The Court of Appeal set aside the judgment of the High Court and we did not appeal. Exhibit IG1 is not addressed to any one and it does not show on it that it was served on anybody. COSST is registered as a welfare association. ASUSS has applied for registration as a trade union, it is not registered but there is litigation now at the Supreme Court. As of now, ASUSS is not yet a registered trade union.

DW1 tendered 5 documents in evidence and three were admitted and marked as follows;

  1. Withdrawal of membership from Nigeria Union of Teachers, 64 in number. = Exhibit IG.1
  2. Mandate forms, 47 in number = Exhibit IG.2
  3. Judgment of Court of Appeal Sokoto in appeal NO:CA/S/48/2010 dated 19/5/2015 = Exhibit IG.3

Two other documents tendered by the defendants were objected to by the claimant’s counsel and ruling on those documents were reserved until judgment.

5.ISSUES FOR DETERMINATION

The defendants’counsel has formulated four issues for determination thus;

1.Whether the claimant has established their(sic) entitlement to the check off dues allegedly collected by the defendants on behalf of the members of 8th defendants to warrant granting the reliefs contained in the claim.

2.Whether there is a relationship of agency or trusteeship between the claimant and the defendants to warrant the defendant being held as “an accounting party” and liable to account to the claimant.

3.Whether in view of the averment in paragraph 11 of the claimant’s statement of fact, the claimant’s claim for account to be given, is competent against the defendants. 

4.Whether the claimant has established their(sic) claim of 133, 566, 800.00 as money collected by the defendants from January, 2007 to October 2013 on the preponderance of evidence.

While the claimant’s counsel formulated two issues for determination thus;

  1. Whether the Defendants can keep benefits conferred on them by a judgment which has been set aside on appeal?
  2. Whether the Claimant has proved its right to the money in this case.

This court is of the opinion that issue 1  formulated by the defendants can adequately dispose of all other issues as formulated, issue 1 of the defendants’ counsel is accordingly adopted as the issue for determination herein.

6.LEGAL SUBMISSIONS OF DEFENDANTS’ COUNSEL

The defendants’ counsel submitted in his issue one that there is nowhere the Court of Appeal declared or make an order that the claimants are entitled to the refund of the money allegedly collected by the defendants on behalf of the secondary school tutors in Kebbi state.

That the claimant did not establish that they are entitled to the money as Check off dues in line with Section 5(4) of the Labour Act which provides for a condition precedent to contracting in a check off due systems. That the claimant did not present any written consent in line with section 5 (4) of the Labour Act to show that members of 8th defendant and 1st-7th  defendants have earlier on agree in writing to contribute their check off dues to them.

In his issue two, defendants’ counsel submitted that for an order to give account to be made by the court, there must be a relationship which established that one party collected or received money on behalf of the other either as agent trustee in such a way that the party who collected the money can be held as “an accounting party· Counsel relied on 1. Fidelis Mwadialo’s CIVIL PROCEDURE IN NIGERIA 2nd edition page 1119. 2. JIMBO v. ASANI suit No: 373/57 Of 13/3/1970 3.  GODWIN V. CAC (1998) LPELR·1327(Sc), {1998) 12 SC p. 1 or (1998) 14 NWLR (part 584) P.162 also cited in Electronic law companion as OGBONNAYA N. T V. THE CHRIST APOSTOLIC CHURCH (1998) NSCQR 34.That the claimant did not establish that the money allegedly collected were collected on its behalf by the defendants and even the CW 1 on cross examination stated that the claimant have never authorized the defendants to collect check of dues on its behalf .

In his issue three, defendants’ counsel submitted that in view of the averment in paragraph 11 of the claimant’s statement of facts the amount claimed is ascertained since the claimant have clearly stated that by its calculation the defendants received the sum of N133,566,800.00K from January2007 to October, 2013. If the above statement is true then there is no need for the Court to order the defendants to give account rather the claimant shall present the evidence supporting their entitlement to the said amount and how the money reached the said amount by their calculation. OGBONNAYA N. TV. THE CHRIST APOSTOLIC CHURCH (1998) NSCQR 344.

In his issue four, defendants’ counsel submitted that the claimant woefully failed to establish with credible evidence that the defendants collected the sum of Nl33, 566,  800 .00K from January 2007 to October, 2013 to warrant the court making the orders against the defendant to pay such amount. That the defendants denied paragraph 5 of the claimants statement of  fact and  further avers in paragraph 10 that the money they received did not reach even close to the amount stated by claimant, now it is for the claimant to prove that the money paid to the registry were eventually paid to the defendants given the defendants’ denial.  AMADI  V. NWOSU (1992) 6 SCNJ. 59 at 71.

That Alhaji Chika who paid the said check-off dues to the registry and was issued exhibits CWA4-CWA23 was not called to tender them neither was the High Court Registrar who issued them and so Exhibit CWA4 -CWA23 amount to documentary hearsay(JULIUS BERGER NIGERIA PLC & ANOR V. OGUNDEHIN (2013) LPELR·20421(CA) and it is the law that hearsay evidence cannot form the basis of  any judgment.  EKPO V. STATE (2O0l) 6WRN pg.165. Counsel therefore urged the court to expunge these exhibits from its record. BUHARI V. OBASANJO (200S) 7 NWLR (Pt 910) 241 at 435.  That similarly there is no any evidence tendered which shows the amount paid to the defendant by the Kebbi State Government from October 2009 to September 2013 let alone the amount of N 13 3,566,800.00K. That the defendants having denied that fact in paragraph 7 of their further amended statement of defence, the claimant carries burden of proving same. See JULIUS BERGER NIGERIA PLC & ANOR v. OGUNDEHIN (supra). That exhibits D & E are documents tendered from the bar but claimant did not in any way give evidence that relate it with his case. Because the only witness called by the claimant did not even mention it in his testimony let alone relating it to the case at hand and a party who wants to rely on a document to prove his case must relate that document with his case he cannot just dump it before the court and expect the court to relate it to any aspect of his case on his behalf See BABAN-LUNGU & ANOR V.ZAREWA &  ORS (2013) LPELR-20726(CA)

7.LEGAL SUBMISSION OF CLAIMANT’S COUNSEL

Submitting on his issue one learned claimant’s counsel said the law is trite that the burden of proving any fact is on the party who will lose if no evidence were adduced at all, also trite is the law that the standard of proof in civil proceedings is on preponderance of evidence or balance of probability. Exhibit IG1 is intended to serve as evidence of the withdrawal of membership of the Defendants from the Claimant. In this connection,   it is our humble submission that neither the 1st _ 7th defendants nor any other secondary school teacher in Kebbi State has withdrawn their membership of the Claimant.  That exhibit IG l is undated and therefore, cannot be held to constitute evidence in support of paragraph   1 9 of the defence witness’ deposition on oath. That Exhibit IG 1 was not addressed to any body and as such, cannot be held to constitute evidence of withdrawal.  The right of withdrawal granted by the law is to an individual worker and not a group of workers as is purported in this case with Exhibit lG 1. CORPORATE AFFAIRS COMMISSION VS AMALGAMATED UNION OF PUBLIC CORPORATIONS, TECHNICAL & RECREATIONAL SERVICE EMPLOYEES (UNREPORTED) SUIT NO: NICN/1/2003, delivered on 28th January, 2004 by the Hon. Justice B.A. Adejumoh.

Submitting further, learned claimant’s counsel referred the Court to defence witness’ testimony under cross-examination where he admitted that it was pursuant to Judgment of the High Court that they started collecting check-off dues. That the Judgment which entitled the defendants to collect check-off dues has been set aside on appeal. The law in this regard is trite that a judgment not appealed against remains binding on all the parties. ADEJOBI VS STATE (2011) 46.2 NSCQR 737@756. It logically follows therefore, that keeping the benefits conferred on them by that judgment amounts to unjust enrichment. This action is therefore for “money had and received”. OLAM (NIG) LTD VS INTERCONTINENTAL BANK LTD (2009) LPE LR 8275 CA)   FBN Vs OZOKWERE (2013) 56.1 NSCQR 503    @ 543, IBE VS LBHAZE (2016) LPELR- 51556 (CA) @25.

That even the defence witness affirmed the case of the Claimant when he admitted under Cross-examination that Conference of Secondary School tutors otherwise known as Academic Staff Union of Secondary School (COSST/ASUSS) is not a registered trade union. The law is trite that collection of check—off dues is an exclusive preserve of registered Trade Unions, Section 2(1) of the Trade Unions Act. That the defendants cannot hide under the proviso to the section because the check-off dues they received was not to aid their registration, but a benefit of registration. That the duty to deduct check-off dues is mandatory and no member is permitted to choose whether or not to deduct. The worker is not under the law expected to specifically authorize the employer to deduct check-off dues. All he can do is, if he so wishes; write to the employer directing him to stop the deduction of his check-off dues.

On the issue of duty to render accounts, counsel submitted that none of the authorities cited by the defendants in this respect created an exhaustive list of instances where the duty to give account may arise.

In answer to paragraph 3.21 of the defendants address, claimant’s counsel conceded that the amount paid through the High Court Registry can be ascertained by adding up the figures contained on Exhibits CWA1 to CWA25.

That Paragraph 10 of the defendants’ statement of defence did not contain any denial of the fact that they received money from the Registry of the High Court. What is contained therein is a disputation as to the time they started receiving money and the amount received, which are facts within the knowledge of the defendants. The Claimant is not required to prove a fact which has not been denied in the pleadings.

That even if exhibits CWD and CWE were tendered through a witness, no evidence could have been led on them as the law clearly prohibits the reception of oral evidence on the contents of the Judgment of a Court.

8.REPLY OF DEFENDANTS’ COUNSEL ON POINTS OF LAW

In his reply on points of law, the defendants counsel submitted that a party cannot change his claim in the final address because the subject matter of a claim of the parties is determined by the pleadings. The subject matter of the claimant’s claim is an action for account to be taken. There is nowhere in its pleadings the claimant made any claim for “money had and received” therefore it cannot change its claim at the address stage.

That the decision in  CAC V. AMALGAMATED UNION OF CIVIC CORPORATION, CIVIL SERVICE, TECHNICAL AND RECRATIONAL SERVICE EMPLOYEES SUIT NO. NIC/1/2O03 delivered on 28th January, 2004 is no longer the position of the law because the provision of Section 16A of the Trade Union Act 1996 has been amended by  section 3 of the Trade Union Amendment Act 2005 which came into force one Year after the decision in CAC V. AMAGAMATED UNION OF CIVIL CORPORATION CIVIL SERVICE TECHNICAL & RECREATION SERVICE’S EMPLOYEE. The provision of new section 16A of the Trade Union Act  substituted the phrase ‘eligible member’ and replace it with the phrase ‘who is a member.

That section 5(4) of the Labour Act clearly states that no deduction can be made from the salaries of persons who are eligible members of any of the trade unions specified in part B of Schedule 3 to the Trade Union Act except if the person concerned has accepted, in writing to make voluntary contribution to the trade union. 

  1. COURT DECISION

Before delving into the issue for determination, it is pertinent to address some preliminary matters. As earlier pointed out, the defendant tendered two documents which were objected to and ruling reserved till judgment. These documents are;      1. A petition letter written by P.O.OSHOTURE & CO on behalf of the NUT, claimant, against the 1st to 7th defendants. The objection to this document was that it was uncertified, having been addressed to the commissioner of police and not copied to any of the defendants. I have considered the submissions of both counsel. I find that the petition was neither addressed to nor copied to any of the defendants. The document was addressed to the Commissioner of Police Kebbi State yet what is tendered in Court is a photocopy without any certification. It is my view that this document does not require much legal verbiage to be rejected by the Court. The document is marked as rejected.

The second document is a summons to an accused person, particularly the 6th defendant. This document was objected to on the ground that it was not front loaded. It is true that this document was not front loaded. In the present case, the document sought to be tendered seeks only to show that the claimant complaint against the 6th defendant at the Jega Magistrate Court, Kebbi and no more. It has no bearing on the issues before this court. The interest of justice is therefore not at stake, the document is rejected for the failure to frontload same.

The defendants counsel has urged the Court to expunge exhibits CWD and CWE as having been dumped on the Court. It is true that the claimant’s reply in which these documents were pleaded and front loaded does not contain a witness statement and these documents were tendered from the bar. By the rules of pleading and practice and procedure, these documents were dumped on the Court and ought to be discountenanced.

The only reference made to any of these documents is in paragraph 5.6 of claimant’s final written address where counsel made reference to Suit NO NICN/KN/14/2015 (exhibit CWD) thus;

“We further wish to bring to my Lord’s notice the fact that the issue of whether the Defendants are members of the Claimant has been resolved against the Defendants in Suit No: NICN/KN/14/2015 in a judgment delivered on the 25th January, 2018 by the Hon. Justice Lawal Mani of blessed memory at pages 32-33 of the Judgment…”

Without tendering the said judgment in Court, the claimant counsel is entitled to rely on same in his address provided he supplies a certified true copy of same to the Court. This document may be relied upon by this Court only on that ground if needs be.

As for exhibit CWE, the claimants themselves have discountenanced it in not relying it in any way.

Issue1: Whether the claimant has established its entitlement to the check off dues allegedly collected by the defendants on behalf of the members of 8th defendant to warrant granting the reliefs contained in the claim.

In considering this issue, it is pertinent to consider the pleadings in order to establish what is in contest. In summary, the claim of the claimants is that the defendants received check-off dues from January 2007 to September 2013 sequel to a judgment of the Kebbi State High Court which judgment was set aside on appeal and so the check-off dues so collected by the defendants should be accounted for and refunded to the claimant since the defendants are not a registered Trade Union. The relevant pleading and evidence are as in paragraphs 4,5,6,8,13 and14 of the amended statement of facts and paragraphs 3,4,5,6,7,10,11,12,and 13 of the CW1 witness statement.

In particular, paragraphs 5 and 6 of the pleadings are reproduced hereunder;

  1. The Claimant avers that pursuant to the ruling/judgment of the High Court, defendants were being paid various sums of money on monthly basis through the Registry of the Kebbi State High Court from January 2007 to September 2009.
  2. The Claimant further avers that between October, 2009 to September, 2013, the defendants were being paid directly by Kebbi State government and no more through the Court.

The witness statement on oath is materially in line with the pleading and paragraphs 5, 6 and 7 of CW1 witness statement are reproduced hereunder;

5.That before judgment was given, the Court ordered that check off dues from salaries of secondary school teachers in Kebbi State should be paid into Court pending the judgment of the Court and we started paying the check off dues to Court.

  1. That the Court delivered its judgment on 16/03/2007 and pursuant to that judgment all check off dues that was paid into the Court was released to the Defendants.

7.That though the Claimant filed an appeal against the Judgment and also an application for injunction pending appeal, the Court ordered execution and since that time until October 2009, all check off dues from salaries of secondary school teachers in Kebbi State were paid to the defendants through the registrars of the Court and we were given receipt by the various registrars.

On the other hand, the pleadings of the defendant and witness statement answering to these are as in paragraphs 5,6,8,10 and 13 of the further amended statement of defence and paragraphs 8,9,13,14,15,16,17 and 19 of the witness statement of DW1.

The pleadings in paragraphs 6 and 10 of the statement of defense particularly read as follows:

  1. The defendant denied paragraphs 4 & 5 of the claimants statement of facts and further avers that the various sum of money were collected for themselves and on behalf of Conference of Secondary School Tutors (COSST) and all the secondary School Tutors in Kebbi state as indicated in the court order.
  2. The defendants denied paragraph 10 of the claimant’s statement of facts and put the claimant to the strictest proof of same. Further to the denial avers that the money received by the defendant on behalf of the Kebbi state Secondary School Teachers are not from January 2007 and did not reach even closed (sic) to N133.566.800:00K

Paragraphs 13,14,15 and 16 of the witness statement of DW1 particularly reads as follows.

  1. That by the order of the High Court the money were kept with the Ministry of Education pending the determination of  suit No KB/HC/M.86/2006. And were never paid to the defendants.

14.That the defendants did not collect money from January 2007 from the Registry of Kebbi State High Court.

15.The even the various sum of money we collected were collected for ourselves and on behalf of Conference of Secondary tutors (COSST) and all the Secondary School Tutors in Kebbi State as indicated in the Court order.

  1. That the money collected is not even close to the amount the complainant is claiming.

It is based on this that the claimants’ counsel submitted that paragraph 10 of the defendants’ statement of defence did not contain any denial of the fact that they received money from the Registry of the High Court. What is contained therein is a disputation as to the time they started receiving money and the amount received, which are facts within the knowledge of the defendants.

Given the state of pleadings and evidence above reproduced, this court agrees with the claimant’s counsel that the defendants did not deny collecting the check-off dues from the Registry of the Kebbi State High Court. What is denied is the period within which they collected the dues and the amount collected.

As for the period that check –off dues were collected through the Registry of the Kebbi State High Court, which is consequent upon the judgment and order of the High Court, it is instructive to note that by paragraph 5 of CW1 witness statement,  the High Court ordered the dues to be  paid into Court(or Ministry of Education by paragraph 13 of the statement of DW1) pending determination of the case.  Exhibits CWA1- CWA25 covers a period of January 2007 to September, 2009. By the judgment order of the Court, particularly the 5th order, the said check- off dues were to be released to the defendants and the DW1 admitted under cross examination that they collected check off dues pursuant to the judgment of the High Court.

 

It is therefore not enough for the defendants to say they did not receive money from January 2007 from the Registry of Kebbi State High Court and that the sums were collected for themselves and on behalf of COSST and that the money collected was not even close to what the complainant is claiming; having tacitly admitted collecting money from the Registry of Kebbi State High Court for themselves and on behalf of the 8th defendant; the defendants must also state from what time they collected such money and bring evidence of how much they collected to controvert the evidence of the claimant. I find therefore that the defendants collected check off dues from the High Court Registry from January 2007 to September 2009.

As for the dues collected directly from the state government, the claim is as in paragraphs 6 and 8 of the statement of fact and they are further reproduced for relevance;

6.The Claimant further avers that between October 2009 to September 2013, the defendants were being paid directly by Kebbi State government and no more through the Court.

  1. The Claimant avers that as from October 2013, Kebbi state Government stopped the payment of check off dues to the defendants and started keeping the money in a designated account for safe keeping pending the determination of the Claimants appeal before the Court of Appeal Sokoto in appeal No: CA/S/48/2010·

These averments are not covered by the evidence of the claimant. The law is trite that pleading not covered by evidence is deemed abandoned and the defendants have no duty to deny or disprove any averment that has been abandoned by the claimant.

See 1.ALHAJI KARIMU OKE YESUFU & ORS v. OKE BAALE (OSOGBO) N. U. T. CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED & ANOR (2014) LPELR-22102(CA)
2.CBN V. AITE OKOJIE (2015) 8 SCM 21 at 41

3.OKECHUKWU V. OKAFOR (1961) 2 SCNLR P.369.

I hold that the claimant has abandoned its claim that the defendants collected any check- off dues directly from the Kebbi State government from October 2009 to September 2013.

Having so found, the main question now is as to who is entitled to the check-off dues collected between January 2007 to September 2009.

There is no doubt that the money so collected was deducted from the salaries of Secondary School Teachers as check- off dues and the defendants collected same from the Kebbi State High Court Registry as check off dues following the judgment in Suit No: KB/HC/M.86/2006.That the said judgment was set aside by the Court of Appeal in  appeal No: CA/S/48/2010 is evident from the Judgment and the order of the Court (exhibits IG3 and CWC). It is also not in doubt that the defendants were not and are still not a registered Trade Union.

The question of whether or not the defendants had withdrawn their membership of the claimant and whether or not the defendants have consented in writing to be members and for their check-off dues to be deducted are therefore not relevant in the circumstance of this case. This is so because this suit is not one by the defendants challenging the legality of deductions of check- off dues from their salaries, having withdrawn from membership of claimant. What is relevant now is who is entitled to the check-off dues of Kebbi State secondary school teachers deducted between January 2007 and September 2009?

The defendants received the said check-off dues sequel to the Judgment of the Kebbi State High Court, which judgment was set aside by the Court of Appeal. What then is the effect of the Judgment of the Court of Appeal in Appeal No: CA/S/48/2010 on the Judgment of the High Court of Kebbi State in suit NO.KB/HC/M.86/2006?

In ALHAJI SALISU IBRAHIM v. ADAJI OJONYE (2011) LPELR-3737(CA) the court of appeal held;

“Let’s assume, as learned counsel rightly put it, that the said judgment was valid and in existence as at the time the said execution was levied thereupon and the movable properties attached as a result, were auctioned, the question then is, when the appeal filed against the said judgment was eventually heard and determined and the appellate Court came to the conclusion that he, the Appellant, was not the one who supposed to have been entitled to that judgment, but, the Respondent, and, then set aside the judgment, what does this phrase “set aside” connotes? And what does it imply? What happens to the properties that ab initio belonged to the Respondent, but, which the Appellant had already taken and discarded? Doesn’t the Respondent have the right to collect his personal properties back, and, even where they were lost, or sold by the Appellant, isn’t he entitled to have the monetary value of them?
……….
It is a basic principle of law that the moment a judgment is set aside every other action taken upon the said judgment must immediately fall with it having no longer efficacy or life in it.
If by an appellate Court’s decision, a judgment of the lower Court was set aside, it means, therefore, that the person who was then adjudged to have been entitled to the said judgment was not, in the least, or from the onset, entitled to the judgment, and, that any execution levied upon the said judgment, is equally cancelled or revoked”.

Applying this case to the case at hand, this Court finds and holds that the effect of the judgment of the Court of Appeal in appeal No: CA/S/48/2010 setting aside the judgment of the Kebbi State High Court in suit No.KB/HC/M.86/2006 which gave the defendants herein the right upon which they collected check off dues deducted  from the salaries of Secondary School Teachers in Kebbi State from January 2007 to September 2009 is that the defendants were not, in the least, or from the onset, entitled to the judgment, and, that any collection of check-off dues based upon the said judgment, is equally cancelled or revoked.

In PEOPLES DEMOCRATIC PARTY & ORS v. BARR. SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR-42563(SC) the Supreme Court held;

Indeed, learned senior counsel is right that where an incompetent action or order therefrom is set-aside by a competent Court, having been embarked upon or decreed by a Court without the necessary jurisdiction and either or both, thereafter, become(s) an issue, then, in law and for all practical purposes, the incompetent action or the equally null and void order arising from the incompetent action, as erased by the order of the competent Court, will be deemed to have never occurred originally”.

Applying this case to the case at hand, it follows that suit No.KB/HC/M.86/2006 and the Judgment therein never was and the defendants must justify their collection of check-off dues deducted from the salaries of Secondary School Teachers in Kebbi State from January 2007 to September 2009 or else must refund same to the Claimant. The argument that the Court of Appeal did not order the defendants to refund the collected check –off dues is untenable as that issue was not before the Court of Appeal and the claimants have not in any way lost their right to demand for a refund after the judgment of the Court of Appeal.

Similarly, in ETUBOM EKPO OKON ABASI OTU & ANOR v. ETUBOM (DR.) ANTHONY ASUQUO ANI & ORS  (2013) LPELR-21405(CA) the court of Appeal held thus;

 “The known legal effect of the nullification or setting aside of a process leading to an act is such that it renders the completed act as if it never happened or come into being at all. There can be no valid product from an invalid process it is garbage in, garbage out, as the popular saying goes. The order setting aside the process leading to the selection of a new Obong had the effect of nullifying the process from the beginning or ab initio”. 

In the same vein, the right to, and the collection of the said check-off dues by the defendants has been nullified by the judgment of the court of appeal in Appeal No: CA/S/48/2010.

The law is equally settled that only a registered Trade Union is entitled to the collection of check off dues. By Section 17 of the Trade Union Act, only a registered Trade Union is entitled to collect check-off dues. Section 17of the Trade Union Act provides;

  1. Deductions from wages of union members.

Upon the registration and recognition of any of the trade unions specified in the Third Schedule to this Act, the employer shall—

       (a)        make deduction from the wages of every worker who is a member of any of the trade unions for the purpose of paying contributions to the trade union so registered; and

       (b)        remit such deductions to the registered office of the trade union within a reasonable period or such period as may be prescribed from time to time by the Registrar.

 

By section 2(1) of the Act an unregistered Union is prohibited from doing any act, including collecting check off dues, except subscription for registration. The section provides thus;

  1. Unregistered trade union prohibited from functioning.

(1)  A trade union shall not perform any act in furtherance of the purposes for which it has been formed unless it has been registered under this Act:

Provided that nothing in this subsection shall prevent a trade union from taking any steps (including the collection of subscriptions or dues) which may be necessary for the purpose of getting the union registered.

 

In THE ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA & ORS. V. JUSUN (2014) 51 NLLR PART 170 P317 AT P404. The Court of Appeal per  Goergewill JCA held thus;

“By the combined effects of sections 1(1), 2(1), 5(6), 17, and 45 of the Trade Union Act, 2004, an association, not being a duly registered trade Union lacks the 1ega1 capacity to remittance of any check off dues to it and therefore lacks the locus standi to sue to recover any check off dues, which is by law not entitled to its remittance. In the instant case and in line with the applicable law at the time this suit was filed, it is clear and contrary to the findings and decisions of the Court below, the 1st Respondent being not a registered Trade Union lacks the legal capacity to remittance of any check off dues to it and therefore lacks the locus standi to sue to recover any check off dues, which it is by law not entitled to its remittance”.

See also PATRICK EZE & ORS v. SERGIUS UDEH & ORS (2017) LPELR-42716(CA)
 

Accordingly, since the defendants, as at 2007 to 2009, were not a registered trade union, they were not for any reason entitled to any monies deducted from the salaries of workers as check-off dues.

The claimant’s counsel was on solid legal ground when he submitted that “The law is trite that collection of check—off dues is an exclusive preserve of registered trade unions, Section 2(1) of the Trade Unions Act. That the defendants cannot hide under the proviso to the section because the check-off dues they received was not to aid their registration, but a benefit of registration”

 The contention that the defendants collected the said check-off dues on behalf of the secondary school teachers based on mandate will not suffice because by section 17 of the Trade Union Act, only a registered Trade Union is legally entitled to collect check-off dues, the check –off dues therefore becomes property of the union and not that of the individual members who can mandate any person or group of persons to collect on their behalf. I so find and hold.

On accounts and refund, the claimant is asking for an account of check-off dues collected between January 2007 and September 2013.This period is divided into two; the first period is January 2007 to September 2009 during which time the defendants were paid through the Kebbi State High Court, while the second period is from October 2009 to September 2013 during which period the defendants were said to have been  paid directly by the Kebbi State Government.

As for the first period, the check-off dues were first collected by the claimants before same were remitted to the defendants through the Kebbi State High Court in compliance with the order and subsequent Judgment of the High Court. The amount for this period cannot be above what the claimant remitted through the High Court Registry. The claimant owes itself and the spirit of accountability a duty to keep records of all the monies it remitted to the defendant through the registry of the High Court, and this is moreso when it was on appeal against the judgment sequel to which it was remitting the said check off dues. As expected, the check off dues remitted through the High Court Registry were receipted by the Registry and these receipts have been tendered in evidence as exhibits CWA1 to CWA25, accordingly, there can be no doubt that the amount of money remitted by the claimant to the defendants through the Registry is ascertainable; this, the claimant’s counsel has admitted in his written address, even though he failed to  take that opportunity to make the calculations, thus failing in his duty to assist the Court as a minister in the temple of justice. The absence of some receipts cannot justify calling on the defendants to first render accounts because the claimants said they lost some of the receipts or failed to collect same from the High Court Registry.

The total sum from exhibits CWA1- CWA25 is N12,807,300 (twelve million, eight hundred and seven thousand, three hundred naira) In the absence of any contrary evidence from the defendants as to how much was remitted to them from January 2007 to September 2009, this amount stands as proven against the defendants and the claimants are entitled to a refund of the said sum of N12,807,300.00 from the defendants covering the period of January2007 to September 2009. I so find and order.

The defendant’s counsel argued that the receipts, exhibits CWA4 to CWA23, were documentary hearsay because they were neither tendered by Alhaji Chika who paid the said dues to the High Court Registry nor was it tendered by the Registrar who is the maker of those documents.

On the face, exhibits CWA1, CWA2, CWA3, CWA24 and CWA25 indicate that the monies were paid into the High Court Registry by CW1 as claimants treasurer while exhibits CWA4 to CWA23 were paid in by Alh Chika as accountant of the claimant. In the circumstances of this case, the claimant was entitled to tender exhibits CWA4 to CWA23, being receipts issued to it, through any of its witness,( in this case, CW1was its treasurer) and not through the registrar who issued them or through Alhaji Chika who paid the said sums to the High Court Registry; as the receipts were issued in favour of the claimant who acted through Alhaji Chika, its  accountant, and in respect of the judgment in suit No. KB/HC/M.86/2006. All the exhibits are similarly worded as in exhibit CWA4 thus;

KEBBI STATE JUDICIARY

HIGH COURT II,

BIRNIN- KEBBl.

Kebbi – State.

Date:   15:09-2007

I the registrar High Court II, Birnin Kebbi hereby acknowledge the receipt of checque of N530,000.00 from Alh. CHIKA  N.U.T accountant which is in respect of SUIT NO;KB/HC/M86/2006 .

Registrar,

The documents by their wordings reveal that it was NUT, the claimant, who, in respect of SUIT NO;KB/HC/M86/2006, that made the payments through its accountant and the receipts were issued in favour of the claimant and so the documents are not documentary hearsay just because they were neither tendered by the High Court Registrar who issued them nor by the claimant’s accountant who paid in the sums. See JOH F. ALARIBE V CHIEF JERRY OKWUONU (2015) LPELR-24297(CA) where the Court held;

“Of course, it is not at all times that documentary evidence must be tendered by the maker, as the person to whom it is made can also produce it in court.”

With respect to the claim for check off dues collected directly by the defendants from the Kebbi State government from October 2009 to September 2013, this court earlier found that this arm of the claim has been abandoned for want of evidence in support of pleadings. This arm of the claim is accordingly hereby dismissed,

  1. COURT ORDER

On the whole, the claim of the claimants succeed in part and it is hereby ordered as follows;

  1. The defendants are hereby ordered, jointly and severally, to refund to the claimant the sum of N12, 807,300.00 (Twelve million, eight hundred and seven thousand, three hundred naira) only, being check -off dues of Secondary School Teachers in Kebbi State collected between January 2007 to September 2009 by the defendants.
  2. Cost is assessed in favour of the claimants in the sum of N100,000.00 (One hundred thousand naira) only.
  3. The defendants are to pay the above judgment sum and cost to the claimant within 30 days of this judgment, failure after which the judgment sum and cost shall attract 10% interest per annum.

Judgment is read and entered accordingly.

…………………………….

HON. JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN SOKOTO

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