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NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU) -vs- O.A. AJAGBE & ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS.

 

                                                                           SUIT NO: NICN/LA/407/2017

BEFORE HIS LORDSHIP, HON. JUSTICE  (DR) I. J. ESSIEN

DATE:- 14TH FEBRUARY, 2019

BETWEEN:-

NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND

 ASSOCIATED INSTITUTIONS (NASU)                                            Claimant

AND

( 1)  O.A. AJAGBE

(2)   WENYA MUMIYO .R.

       (Sued us the Coordinators and representatives of

       Obafemi Awolowo University (0.A.U) Workers; going                Defendant

       By the name NIGERIA UNIVERSITY ADMIN AND

       TECHNICAL STAFF UNION, O.A.U).

(3 )  OBAFEMI AWOLOWO UNIVERSITY ILE-IFE.

REPRESENTATION.

  1. A. Ogunleye Esq. for the claimant
  2. T. A Raji Esq. for the 1stand 2nddefendant.

No representation for the 3rd defendant.

 

JUDGMENT.

The claimant in this action which is a registered trade Union by an originating summons dated and filed on the 23/8/2017, suit sought the determination of the following questions;

1)    Whether by the Provisions of Section 5(3) (a) and (b) of the Labour Act Cap Ll, LFN 2004, the purported collective or group dis-engagement from and denunciation of their membership of the claimant, Non Academic Staff Union of Educational and Associated Institutions (NASU) by some of the Obafemi Awolowo University (OAU) workers whose names and signatures appeared on the list of attendees of the alleged workers congress held on the 6th day of July 2017 attached to a letter dated 31st July, 2017 and signed by the 1st

2)    and 2nd defendants as coordinators and representatives of the OAU workers operating an unregistered and illegal Union called Nigeria University Admin and Technical Staff Union (NUATSU) OAU is not unlawful, wrongful, null and void and of no effect whatsoever.

3)    Whether by the provision of Section 2(1) of the Trade Unions Act, Cap. Tl4 LFN 2004, the Nigeria University Admin and Technical Staff Union, (NUATSU), OAU Coordinated and represented by the 1st  and 2nd  defendants can operate and perform the functions of a Trade Union when same has not been dully registered under the Trade Unions Act or any other law in Nigeria.

4)    Whether by the Provision of Section 3(2) of the Trade Unions Act, Cap. T14, LFN 2004, the Nigeria University Admin And Technical Staff Union (NUATSU), OAU being Coordinated and represented by the 1st and 2nd defendants can be registered as a Trade Union to represent the Non Academic Staff of the Obafemi Awolowo University where there already exists a Trade Union such as the claimant.

5)    Whether by the Provision of Section 25 of the Trade Unions Act, Cap. T 14, LFN 2004, the 3rd defendant, the Obafemi Awolowo University, Ile Ife is bound under the provisions of this law to recognize and continue with the recognition of the Claimant as a registered Trade Union specified in Part A & B of the Third Schedule to the Trade Unions Act for as long as the claimant remain a registered Trade Union conferred with the jurisdictional scope of unionizing all eligible Non-Academic Staff of the 3rd Defendant.

6)    Whether by the Provisions of Section 17 (a) and (b) of the Trade Unions Act Cap. Tl4 LFN 2004 and Section 5(3) (a) and (b) of the Labour Act, Cap. L1, LFN 2004, the stoppage or suspension of the deduction of check-off dues or the failure or refusal to resume or continue with the deduction of check-off dues by the 3rd defendant from the salary of all eligible members of the claimant in the employment of the 3rd defendant and remitting same to the claimant and the payment of the claimant’s check-off dues to the illegal Union known as the Nigeria University Admin and Technical Staff Union ((NUATSU), O.A.U is unlawful, wrongful and against Trade Unionism and International Best Labour Practice.

7)    Whether by the Provisions of Section 2 and 25 of the Trade Unions Act Cap. T14, LFN 2004, the Nigeria University Admin and Technical Staff Union (NUATSU), OAU Coordinated and represented by the 1st and 2nd Defendants qualified to be recognized as a Trade union under this law by the 3rd Defendant.

Upon the determination of the these questions, the claimant seeks the following relieves from the court.

  1. a)A DECLARATION that by the Provisions of Section 5(3) (a) and (b) of the Labour Act, Cap. L1, LFN 2004, the purported collective or group dis-engagement from and denunciation of their membership of the Claimant by the 3rd Defendant’s Non-Academic Staff whose names and signatures appeared on the list of attendees of the alleged workers congress held on the 6th day of July 2017 attached to the 1st and 2nd defendants’ letter dated 31st day of July 2017 and signed by them as coordinators and representatives of the O .A. U workers operating an unregistered and illegal Union called the Nigeria University Admin and Technical Staff Union (NUATSU), O.A.U is unlawful, wrongful, null and void and of no effect whatsoever.

  1. b)A DECLARATION that by the Provision of Section 2 ( 1) of the Trade Unions Act, Cap. Tl 4 LFN, 2004, the Nigeria University Admin And Technical Staff Union (NUATSU), OAU Coordinated and represented by the 1st and 2nd Defendants cannot operate and perform the functions of a Trade Union when same has not been duly registered under the Trade Unions Act or any other law in Nigeria.

  1. c)A DECLARATION that by the Provision of Section 3(2) of the Trade Unions Act, Cap. Tl 4, LFN 2004, the Nigeria University Admin And Technical Staff Union (NUATSU), OAU as being called, Coordinated and represented by the 1st and 2nd Defendants cannot be registered as a Trade Union to represent the Non-Academic Staff of the 3rd Defendant where there already exists a Trade Union such as the Claimant in the institution.

  1. d)A DECLARATION that by the Provision of Section 25 of the Trade Unions Act, Cap. Tl4 LFN 2004, the 3rd defendant, the Obafemi Awolowo University is bound under the provision of this law to recognize and continue with the recognition of the claimant as a registered Trade Union specified in Part A and B of the Third Schedule to the Trade Unions Act for as long as the Claimant remain a registered Trade Union conferred with the jurisdictional scope of unionizing all eligible Non-Academic Staff of the 3rd

  1. e)A DECLARATION that by the Provisions of Section 17 (a) and (b) Of the Trade Unions Act, Cap. Tl4 LFN 2004 and Section 5(3) (a) and (b) f the Labour Act, Cap. Ll, LFN 2004, the stoppage or suspension of the deduction of check-off dues or the failure or refusal to resume the deduction of check-off dues by the 3rd Defendant from the salary of all eligible members of the Claimant in the employment of the 3rd Defendant from and remitting same to the Claimant and the payment of the Claimant’s check-off dues to the unregistered Union called Nigeria University Admin and Technical Staff Union ((NUATSU), O.A.U is unlawful, wrongful and against Trade Unionism and International Best Labour Practice.

  1. f)A DECLARATION that by the Provisions of Section 2 and 25 of the Trade Unions Act, Cap. Tl 4 LFN 2004, the unregistered OAU workers Union called Nigeria University Admin And Technical Staff Union ((NUATSU), O.A.U Coordinated and represented by the 1st and 2nd Defendants is not qualified to be recognized as a Trade Union under this law by the 3rd

  1. g)AN ORDER of this Honourable Court nullifying and setting aside the purported collective or group dis-engagement or denunciation of their membership of the claimant by those whose names and signatures appeared on the said list of attendees attached to the 1st and 2nd Defendants, letter dated 31st July, 2017.

  1. h)AN ORDER of this Honourable Court restraining the 1st and 2nd defendants, their led executive body and members from operating or performing the functions of a Trade Union since the said Union Nigeria University Admin and Technical Staff Union ((NUATSU), 0.A.U which they sought to operate and represent is not a registered one.

  1. i)AN ORDER of this Honourable Court compelling and directing the 3rd defendant to recognize and continue recognizing the claimant as a registered Trade Union with the jurisdictional scope of unionizing all its eligible Non-Academic Staff with the exclusion of all other unions.

  1. j)AN ORDER of this Honourable Court compelling or directing the 3rd defendant to resume and continue with the deduction of check-off dues from the salary of all eligible members of the Claimant in its employment and remit same to the headquarters of the claimant within 30 days from the grant of this order.

  1. k)AN ORDER of this Honourable Court restraining the 3rd defendant, its agents, privies, representatives howsoever called from recognizing, dealing, relating or engaging with the 1st and 2nd defendants or with the said unregistered union called Nigeria University Admin And Technical Staff Union ((NUATSU), O.A.U, they sought to Coordinates or represent on Trade Union affairs matter whatsoever or howsoever.

  1. l)AN ORDER of this Honourable Court restraining the 3rd Defendant from victimizing the loyal members of the claimant in its employment in whatever way howsoever as a result of their stand not to Join or engages themselves in the activities of the Nigeria University Admin And Technical Staff Union (NUATSU).

  1. m)AN ORDER of this Honourable Court compelling or directing the 3rd defendant to refund to the claimant all money due to the claimant as a result of deducted check-off dues from all eligible members of the claimant in O.A.U that was wrongfully paid to the Nigeria University Admin and Technical Staff Union (NUATSU), O.A.U by the 3rd  by defendant within 30 days from the day of judgment in this case.

  1. n)AND FOR SUCH FURTHER ORDER OR OTHER ORDERS OR RELIEFS just and fair this Honourable Court may deem fit to grant in the circumstances.

The originating summons is supported by a 31 paragraph affidavit deposed to by one Adetunji Ademisoye the Deputy Secretary of the claimant. Annexed to the affidavit is exhibit ‘A’ The resolution of congress denouncing NASU membership with signatures of members of the staff of the 3rd defendant under the umbrella of (NUATSU)  dated 31/07/2017.  Also in support of the originating summons is the written address of the claimant counsel.

Upon being served with this originating summons the 1st and 2nd defendant filed a joint counter affidavit on the 2/3/2018 . Attached to the affidavit is Exhibit A1 to A8 and also Exhibit B1 and B2. Filed also along with the affidavit is the written address of the defendant counsel. The defendant counsel in his written submission also raised a preliminary objection to issues 1, 2 and 3 formulated by the claimant in his written address. His contention is that the issues are hypothetical and academic.

On the 16th January 2019 when parties were before the court counsels adopted their various processes. The claimant counsel urged the court to grant the reliefs sought for in the originating summons while the defendant counsel urged this court to dismiss the originating summons.

First I must state that I have carefully considered the issues 1, 2 and 3 formulated by the claimant counsel in his written address. The issues are in no way academic or hypothetical. As claimed by the defendant counsel. Accordingly, this court will go ahead to consider those issues on the merit in this judgment.

While counsel for both parties have formulated issued for determination in their addresses, this court would rather than consider the issues formulated by the parties, adopt the  questions raised by the claimant for determination in this originating summons as the issues to be considered.

 

ON ISSUE 1

Whether by the Provisions of Section 5(3) (a) and (b) of the Labour Act Cap Ll, LFN 2004, the purported collective or group dis-engagement from and denunciation of their membership of the claimant, Non Academic Staff Union of Educational and Associated Institutions (NASU) by some of the Obafemi Awolowo University (OAU) workers whose names and signatures appeared on the list of attendees of the alleged  workers congress held on the 6th day of July 2017 attached to a letter dated 31st July, 2017 and signed by the 1st and 2nd defendants as coordinators and called Nigeria University Admin and Technical Staff Union (NUATSU) O.A.U is not unlawful, wrongful, null and void and of no effect whatsoever.

On this issue the claimant counsel argued that by section 5(3) (a) and (b) of the Labour Act, a worker is free to opt out of membership of a recognised trade union as a way of exercising his freedom of association. However the freedom to opt out of membership of a trade union can only be exercised individually and in writing to the union and his employer. He argued that the law does not recognise collective or group opting out of a union. He relied on the case of CAC .Vs. AUPCTRE (2004) 1NLLR (Pt1) 1 at  30 ratio 15. He also relied on the unreported decision of this court decided on the 23/7/2013 by my learned brother Justice O.A. Shogbola in the case of NASU . Vs. Governing Council of National Teachers Institute, Kaduna & Anor at pg 22. Counsel argued that exhibit ‘A’ i.e. the resolution of congress denouncing NASU membership by the non academic staff of the 3rd defendant wherein attached is the signatures of the 3rd defendant staff acting under the auspices of Nigerian University Admin and Technical Staff Union (NUATSU) is in violation of section 5(3) of the Labour Act. Therefore wrongful, unlawful, null and void and of no effect whatsoever.

On the other hand the defendant counsel in his argument contend that the non academic staff of the defendant have unfettered right to opt out of membership of the claimant that this they have done through their directive to the bursar of the 3rd defendant to stop the deduction of check off dues from their salary. He argued that the membership of the claimant were not effected through any formal process other than the endorsement of a  form at the point of entry into the employment of the 3rd defendant, directing and / or authorizing the Bursar of the institution to deduct their union dues in favour of the claimant. And that by exhibit A1 to A8 (that is the letter directing the bursar to stop deduction of check off dues by 16 staff of the 3rd defendant) they have complied with the procedure in withdrawing their membership of the claimant.

I have carefully considered the argument of counsels on this issue. The question is whether any of the staff of the 3rd defendant concerned has opt out of membership of the claimant as required by law. I must first of all note that from the legal regime of trade union law, it must be appreciated that trade unionism is basically regulated by statute. In that its registration, operation, membership and dissolution of trade union is statutorily regulated. And compliance with any matter pertaining to trade unionism is compulsory and mandatory. Having said this the provision of section 5(3) of the labour Act provides;

Upon the registration and recognition of any of the Trade Unions specified in Part ‘A’ of Schedule 3 to the Trade Unions Act, the employer shall –

(a) Make deductions from the wages of all workers eligible to be members of the Union for the purpose of paying contributions to the Trade Union so recognized; and

(b) Pay any sum so deducted to the Union but a worker may contract out of the system, in writing and where he has done so, no deductions shall be made from his wages in respect of contributions mentioned in paragraph (a) of this Section (underlining mine for emphasis].

I must state clearly that having regards to the nature of trade union as a statutory regulated association Section 5(3) (a) clearly established the statutory foundation for the deduction of check off dues. The argument of the defendant counsel that the membership of the claimant were not effected through any formal process other than the endorsement of a  form at the point of entry into the employment of the 3rd defendant, directing and / or authorizing the Bursar of the institution to deduct their union dues in favour of the claimant is without any authority, such argument is misconceived and made out of clear misunderstanding of the operation of trade union. Membership of trade union and deduction of check off dues at the point of entry is compulsory because of the wordings of section 5(3)(a) which mandates the employer to deduct check off dues of workers eligible to be members of the union. This statutory duty is not done in consultation with eligible workers. Therefore membership of a trade union cannot be effected by filling of forms authorising deduction of check off dues as argued by the defendant counsel. In any case the defendant counsel failed to  exhibit the alleged forms he claims formed the basis of membership.

Furthermore, from the tenure of the above law the section clearly mentions ‘a worker’ and it is a cardinal rule of interpretation that express mention of one thing in a statute excludes every other. ‘expressio unis exclusio atterius’  See Adaohaugo-Ngaji V. FRN (2015) LPELR-24824 . See also APC V. Omisore & Ors [2014] LPELR-24074. It follows that the provision of section 5(3)b envisages a single employee opting out of a trade union. A collegiate denunciation of a trade union has never been recognised by statute or by legal authority. In the case of CAC ,Vs, AUPCTRE (2004) 1 NLLR (Pt.1) 1 at 30 ratio 15. ADEJUMO J. the learned President of NIC held that;-

Where any junior staff wishes to opt out of a union, he or she is free to, in writing, to so opt out, The freedom to associate under Section 40 of the 1999 Constitution certainly includes the freedom to disassociate or not to associate. This must however, be done individually, and not collectively, as the proviso to Section 5 (3) of the Labour Act Cap. 198 LFN 1990 talks of ‘a worker’ may contract out of a system in writing… Representative action in this regard is not permitted.  

The law is settled and it is that a worker has the constitutional right to exercise his freedom of association guaranteed under section 40 of the 1999 constitution and in doing so may form and join trade union for the protection of his own interest. The right to join a trade union is one side of the coin, the right to opt out or exit membership of the union is the other side of the coin granted by section 40 of the 1999 constitution. However the exercise of that right is subject to extant laws governing the operation of trade unions in this country. The exercise of this right does not also give the worker the unfettered right to join any trade union of his own choice. In the case of Sea Trucks (Nig) Limited V, Pyne [2004] 1NLLR (pt 1)58. The Court of Appeal held while considering section 37 of 1979 constitution (now Section 40 of 1999 constitution)

BY virtue of section 37 of the Constitution of the Federal republic of Nigeria 1979, 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 interest. The phrase “for the protection of his interest” does not give the citizen an unrestrained freedom to join any association. (P. 69, paras. B- D).

The court went further to state;

It is not a freedom at large but rather, it is one that is certainly restrictive. If it were the intention of the makers of the constitution to make the right of association unfettered or unrestrained, it would have used the words “of his own choice” as was done in section 33(6)© of the same Constitution on the right of a citizen to be represented by a counsel of his own choice. (P. 69, paras. C – G).

The implication of this decision is that even though the right to opt out of a trade union is allowed, an employee cannot join any union of their choice as they sought to do by signing the annexure to exhibit ‘A’ as members of the unregistered Nigerian University Admin and Technical Staff Union (NUATSU), and as a group trying to opt out of membership of the claimant.

It logically follows from section 5(3) of the Labour Act, that the law requires a single worker who desires to opt out of a trade union membership to write to the employer as well as the trade union notifying them of his intention to denounce membership of the trade union. I have examined exhibit ‘A’ attached to the claimant affidavit. That exhibit does not satisfy the requirement of the law as regards opting out of the membership of the claimant by the staff of the 3rd defendant insofar as it is a resolution of a congress of employees of the 3rd defendant. Also exhibit A1 to A8 attached to the affidavit of the defendant is also in violation of the requirement of section 5 (3) b of the Labour Act. A letter addressed to the bursar of the defendant by 16 out of 404 employees of the 3rd defendant requesting the stoppage of deduction of check off dues cannot satisfy the requirement of the law in this regard. On the strength of the above cited authority this court resolves issue one in favour of the claimant against the defendant.  Accordingly the purported renunciation of membership of the claimant by staff of the 3rd defendant is hereby declared unlawful, wrongful, null and void and of no effect whatsoever.

ISSUE 2 and 3

Whether by the provision of Section 2(1) of the Trade Unions Act, Cap. T14 LFN 2004, the Nigeria University Admin and Technical Staff Union, (NUATSU), OAU Coordinated and represented by the 1st and 2nd Defendants can operate and perform the functions of a Trade Union when same has not been dully registered under the Trade Unions Act or any other law in Nigeria. And

Whether by the Provision of Section 3(2) of the Trade Unions Act, Cap. L14, LFN 2004, the Nigeria University Admin And Technical Staff Union (NUATSU), O.A.U being Coordinated and represented by the 1st and 2nddefendants can be registered as a Trade Union to represent the Non Academic Staff of the Obafemi Awolowo University where there already exists a Trade Union such as the Claimant.

 

 On these issues  the claimant submits that the Nigeria University Admin and Technical staff Union (NUATSU) being an unregistered association cannot perform the function of a registered trade union he relied on section 2(1) of the Trade Union Act. And the case of SSAUTHIRIAI & 6 Ors V. Federal Ministry of Health & Social Services and Anor (Digest of Judgment of NIC [1978-2006] 404 at pg. 406. He argued that NUATSU, OAU has been performing the functions of a registered trade union when the same is not registered. He argued that NUATSU, OAU being coordinated by the 1st and 2nd defendant is prohibited from performing the functions of trade union since it is not registered in accordance with section 2 of the Trade Union Act. He further argued that the only union registered and authorised by law to unionise non-academic staff of the 3rd defendant is the claimant. That by the provision of section 2(2) of the Trade Union Act, the NUATSU OAU cannot be registered to represent the workers of the 3rd defendant where the claimant which has already been   registered and recognised to unionise non-academic staff of  the 3rd defendant OAU. He further place reliance on paragraph No.27 of part B of the third schedule to the Trade Union Act. He relied on the case of Osawe V. Registrar of Trade Union [1985] 1NWLR (pt. 4) at 755.

On this issue, the defendant counsel argument which can be deduced from the argument in his preliminary objection when he objected to issue I and 2 is that there is no juristic person which the court can determine the question sought against. He argued that the only time the court can determine whether an association can be registered as a Trade Union is when such an association has submitted its app1ication for registration to the Registrar of Trade Union.

 I have carefully considered the argument put forward by counsels on this issue. The pertinent question is whether Nigeria University Admin and Technical Staff Union (NUATSU) O.A.U is a registered trade union, which can vest in it the right to unionise non-academic staff of the 3rd defendant or perform the functions of a trade union. Also can (NUATSU) operate as a trade union in the 3rd defendant where the claimant operates?.

First, section 2(1) of the Trade Union Act provides;

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. 

 

Also Section 3(2) of the trade Union Act provides;

No combination of workers or employers shall be registered as a trade union save with the approval of the Minister on his being satisfied that it is expedient to register the Union either by regrouping existing trade union or otherwise howsoever, but no trade union shall be registered to  represent workers or employers in a place where there already exists a trade union.

The defendant counsel in his argument admits that NUATSU is not a juristic person likewise the claimant counsel in their respective written addresses. Having not been registered the law does not allow the 1st and 2nd defendant who are being sued as coordinators of NUATSU to project the association as a trade union authorised to unionise non-academic staff of the 3rd defendant as they did in Exhibit ‘A’ .  I have examined the content of the said exhibit which is ‘A Resolution Of Congress Denouncing NASU Membership’ emanating from OAU workers, (formerly NASU). The annexure which is the signed register of members of NASU has the heading ‘Nigeria University Admin and Technical Staff Union (NUATSU) OAU. This is a clear indication that the workers of the 3rd defendant under the coordination of the 1st and 2nd defendant have forms another trade union which they intend to unionise and carry out union activities in the 3rd defendant, in place of the claimant which is duly registered trade union and duly recognised by the third schedule to the Trade Union Act CAP T14 LFN 2004, in paragraph ‘A’ –No 27. This is what the provisions of section 3(2) of the Trade Union Act expressly prohibit. I do not also see any merit in the defendant counsel argument that that because NUATSU is not a juristic person no question can be determined against it. It is on record that NUATSU is not a party to this proceedings. Rather it is the 1st and 2nd defendants that are sued as coordinators of NUATSU. therefore any question can be entertained against the legality of the unregistered association which they represent. After all the law has long been established in the case of Ifekwe V. Madu [2000]14 NWLR (Pt.688) that ‘A registered association or Trade Union can sue in its registered name, if registered; if unregistered, it can sue or be sued by representative members.’ (underlining mine).

This court therefore resolves issue 1 and 2 against the defendant in favour of the claimant.

ISSUE 4 AND 6

In this issues, the claimant seeks the determination whether by section 25 of the Trade Union Act, the 3rd defendant is bound to continue to recognise the claimant as a trade union authorise to unionise the workers of the 3rd defendant for as long has the claimant remains a registered trade union and also whether NUATSU by the combined effect of section 2 and section 25 of the Trade Union Act can be recognised as a trade union by the 3rd defendant.

These issues are basically the same is so far as it is to determine between the claimant and the NUATSU which should be recognise by the 3rd defendant as the trade union authorised to unionise non-academic staff of the 3rd defendant.

On this issue the claimant counsel argued that by the provision of section 25(1) of the Trade Union Act, the 3rd defendant is to accord complete and compulsory recognition to the claimant as a registered trade union in Nigeria. He argued that the wordings of section 25(1) gives no discretion to the 3rd defendant whether or not to recognise the claimant. He relied on the case of CAC  Vs. AUPCTRE (supra) [2004]1NLLR (Pt1)1 and also Mix and Bake Flour Mill Industries Limited .Vs. NUFBTE (2004) 1 NLLR (Pt.2) 24 7 o.t 275 – 276 & 111.

Counsel argued further that by virtue of sections 2 and 25 of the Trade Union Act, Nigeria University Admin and Technical Staff Union, O.A.U. Coordinated and represented by the [1st and 2nd Defendants do not qualify to be recognized as a union under the TUA by the 3rd Defendant. Counsel relied on the case of Management of Joki (Nig) Ltd .Vs. Union of Shipping, Clearing and Forwarding Agencies (Digest of Judgment of NIC, 1978-2006) 200 at pg.201.

The defendant counsel did not proffer any argument or response to these issues in his written argument. I have carefully considered the argument put forward by the claimant counsel. For the avoidance of doubt the provision of section 25(1) of Trade Union Act  provides;

  1. (1) Subject to this section, where there is a trade union of which persons in the employment of an employer are members , that trade union shall, without further assurance on registration in accordance with the provisions of this Act, be entitled to recognition by the employer.

(2) If an employer deliberately fails to recognize any trade union pursuant to the provision of sub section (1) of this section, he shall be guilty of an offence and be liable on summary conviction to a fine of N 1,000

The effect of the above provision is that once a trade union has been registered pursuant to section 2 (1) of the Trade Union Act, an employer is under a statutory duty to recognise the trade union as the only union with the requisite authority to unionise staff of the employer. This is so because by the provision of section 3(2)of the Trade Union Act, no trade union shall be registered to represent workers or employers in a place where already exist a trade union. In the case of CAC. Vs. AUPCTRE. ‘supra’  this court as far back as 2004 had laid this position to rest when considering  section 24(1) and (2) of Trade Union Act 1990 which is ipari-materia with section 25 under consideration in this case. The court held;

Recognition of trade unions by an employer is compulsory and automatic by the combined effect of section 5 (7) and section 24(1) of the Trade Unions Act l 990 as amended by Decree No. 1 of 1999 and by section 5(3)(a) and (b) of the Labour Act, 1990. (P.29. para.H)

It is in evidence that the employees of the 3rd defendant were and are still members of the claimant. It is not also in doubt that the claimant is and still remains a registered trade union recognised under the 3rd schedule to the Trade union Act. So long as the claimant still remains a registered trade union, no trade union can be registered to unionise non-academic staff of the 3rd defendant. On the strength of the above position taken by this court which is in line with extant statutory provisions this court hereby resolves question 4 and 6 in favour of the claimant against the defendant. Accordingly the 3rd defendant is under a statutory duty to recognise the claimant as the registered union statutorily empowered to unionise all the non-academic staff of the 3rd defendant. The 3rd defendant cannot recognise  ‘Nigeria University Admin and Technical Staff Union (NUATSU) O.A.U or any other union by whatsoever called as a trade union to unionise non- academic staff of the 3rd defendant so long as the claimant remains a trade union.

 

ISSUE 5

In this issue the claimant seeks a declaration that by the Provisions of Section 17 (a) and (b) of the Trade Unions Act Cap. T14 LFN 2004 and Section 5(3) (a) and (b) of the Labour Act, cap. L1, LFN 2004,  the stoppage or suspension of the deduction of check-off dues or the failure or refusal to resume or continue with the deduction of check-off dues by the 3rd defendant from the salary of all eligible members of the claimant in the employment of the 3rd defendant and remitting same to the claimant and the payment of the claimant’s check-off dues to the illegal Union ((NUATSU), O.A.U is unlawful, wrongful and against trade unionism and international best labour practice.

 

The claimant counsel argued that by Section 17(a) and (b) of the TUA and Section 5(3) (a) and (b) of the Labour Act, the 3rd Defendant has two duties to the claimant; (a) to make deduction from the wages/salary of every worker eligible to be a member of the claimant and (b) to pay or remit the whole sum so deducted to the headquarters of the claimant. The act of the 3rd defendant is a violation of the above mentioned section of the Trade Union Act and the Labour Act. It is also wrongful for the 3rd defendant to remit the check off dues to an illegal association NUATSU, OAU.  Counsel relied on the case of Udoh Vs. Orthopaedic Hospital Management Board [1990] 4 NWLR (Pt.142) 52,  CAC VS. AUPCTRE  (2004) 1 NLLR (Pt. l) 1. N.U.T. VS. Otufunke Fadugba. & Anor [2011] 16 NLLR (Pt.52) 61 at 83, ASCSN .VS. Government of Yobe State, Bauchi State and Niger State (2010] 19 NLLR (pt.54) 272 at 332. Counsel urged the court to resolve the question in favour of the claimant.

Again the defendant counsel did not make any argument in response to the argument of the claimant counsel in this issue. I have carefully considered that argument of the claimant counsel and the law relied upon as well as the cases cited by the claimant counsel in support of his argument on this issue.

For the avoidance of doubt section 17 of the Trade Union Act provides;

Section 17: 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 eligible to be a member of any of the Trade Unions for the purpose of paying contributions to the Trade Union so registered; and

(b)Pay any sum so deducted directly to the registered office of the Trade Union,

Further to the above, the provision of section 5(3) (a) and (b) is impari-material with section 17 of the Trade Union Act reproduced above. I have held in this judgment that the claimant is and still remains the only trade union recognised to unionise non-academic staff in the 3rd defendant. I have also held in this judgment that the 3rd defendant cannot recognise any other trade union except the claimant who is the registered and recognised trade union authorised to unionise non-academic staff of the 3rd defendant. The implication of the decision of this court therefore is that the 3rd defendant is under a duty to comply with the provisions of section 17 of the Trade Union Act as well as Section 5(3) (a) and (b) of the Labour Act. This statutory duty which is imposed on the 3rd defendant has been given judicial sanction in the case of CAC VS. AUPCTRE  (2004) 1 NLLR (Pt. l) 1, where this court Held

Regarding the workers’ unions, which the respondent union is one, the combined effect of section 24(1) and (2) and section l 6(A) of Trade Unions Act as amended is that the law intends and stipulates for compulsory recognition and deduction of check-off dues in respect of workers who are eligible to be members of a union. (P. 30, paras. E-H; p.31, paras. B – D)

 

The 3rd defendant cannot stop the deduction and payment of the check off dues of all eligible non-academic staff of the 3rd defendant. The 3rd defendant is under a duty to remit the check off dues to the claimant. This court hereby resolves issue 5 in favour of the claimant  against the defendant.

This origination summons hereby succeeds accordingly, upon the determination of the questions in this originating summons, this court hereby make the following declarations.  It is hereby declared as follows;

1)    That by the Provisions of Section 5(3)(a) and (b) of the Labour Act, Cap. Ll, LFN 2004, the purported collective or group dis-engagement from and denunciation of their membership of the Claimant by the 3rd Defendant’s Non-Academic Staff whose names and signatures appeared on the list of attendees of the alleged workers congress held on the 6th day of July 2017 attached to the 1st and 2nd Defendants’ letter dated 31st day of July 2017 and signed by them as coordinators and representatives of the O.A.U workers operating an unregistered and illegal union called the Nigeria University Admin and Technical Staff Union (NUATSU), O.A.U is unlawful, wrongful, null and void and of no effect whatsoever.

 

2)    That by the Provision of Section 2 (1) of the Trade Unions Act, Cap. T14 LFN 2004, the Nigeria University Admin And Technical Staff Union (NUATSU), OAU coordinated and represented by the 1st and 2nd Defendants cannot operate and perform the functions of a Trade Union when same has not been duly registered under the Trade Union Act or any other law in Nigeria.

 

3)    That by the Provision of Section 3(2) of the Trade Unions Act, Cap.   T14, LFN 2004, the Nigeria University Admin And Technical Staff Union (NUATSU), OAU as being called, coordinated and represented by the 1st and 2nd Defendants cannot be registered as a Trade Union to represent the Non-Academic staff of the 3rd defendant where the claimant already exist  as a Trade Union in 3rd  defendant institution.

 

4)    That by the Provision of Section 25 of the Trade Unions Act, Cap. T14 LFN 2004, the 3rd defendant, the Obafemi Awolowo University is bound under the provision of this law to recognize and continue with the recognition of the claimant as a registered Trade Union specified in Part A and B of the Third Schedule to the Trade Unions Act for as long as the claimant remain a registered Trade Union conferred with the jurisdictional scope of unionizing all eligible Non-Academic Staff of the 3rd defendant.

5)    That by the Provisions of Section 17 (a) and (b) of the Trade Unions Act, Cap. T14 LFN 2004 and Section 5(3) (a) and (b) of the Labour Act, Cap. L1 LFN 2004, the stoppage or suspension of the deduction of check-off dues or the failure or refusal to resume or continue with the deduction of check-off dues by the 3rd defendant from the salary of all eligible members of the claimant in the employment of the 3rd defendant and remitting same to the claimant and the payment of the claimant’s check-off dues to the unregistered union called Nigeria University Admin and Technical Staff Union ((NUATSU), O.A.U is unlawful, wrongful and against Trade Unionism and International Best Labour Practice.

6)    That by the Provisions of Section 2 and 25 of the ‘Trade Unions Act, CAP T14 LFN 2004, the unregistered OAU workers union called Nigerian University Admin And Technical Staff Union (NUATSU),    OAU coordinated and represented by the 1st and 2nd defendants is not qualified to be recognized as a Trade Union under the law by the 3rd defendant.

Upon the strength of the above declaration this court hereby orders as follows;

  1. a)The court hereby nullify and set aside the purported collective or group dis-engagement or denunciation of their membership of the claimant by those whose names and signatures appeared on the said list of attendees attached to the 1st and 2nd defendants’ letter dated 31st July, 2017.

  1. b)The 1st and 2nd defendants and their led executive body and members are hereby restrained from operating or performing the functions of a Trade Union since the said union, Nigeria University Admin and Technical Staff Union ((NUATSU), 0.A.U which they sought to operate and represent is not a registered one.

  1. c)The 3rd defendant is hereby directed to recognise and continue recognise the claimant as a registered trade union with the jurisdictional scope of unionising all its eligible Non-Academic Staff with the exclusion of all other unions.

  1. d)The 3rd defendant is hereby directed to resume and continue with the deduction of check-off dues from the salary of all eligible members of the claimant in its employment and remit same to the headquarters of the claimant within 30 days from the grant of this order.

  1. e)The 3rd defendant is hereby directed to refund to the claimant all money due to the claimant as a result of deducted check-off dues from all eligible members of the claimant in O.A.U that was wrongfully paid to the Nigeria University Admin and Technical Staff Union (NUATSU), O.A.U by the 3rd Defendant within 30 days from the date of this judgment.

It is further ordered that the 3rd defendant shall not do anything to victimise any staff of the 3rd defendant consequent upon their stand to still remain members of the claimant pursuant to this judgment.

Judgment is entered accordingly.

DATED THIS ____________ DAY OF ________________________2019

SIGN _____________________________________________

HON. JUSTICE (Dr.) ISAAC J. ESSIEN.

(PRESIDING JUDGE)

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