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National Industrial Court

Non-Academic Staff Union of Educational and Association v YUSUF MUHAMMED BABA and ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP, HONOURABLE JUSTICE K.D. DAMULAK

DATED THIS 26TH   DAY OF JUNE 2019

SUIT NO. NICN/ABJ/377/2018

BETWEEN

NON-ACADEMIC STAFF UNION OF EDUCATIONAL

AND ASSOCIATED INSTITUTIONS (NASU)              ………… CLAIMANT

AND

  1. YUSUF MUHAMMED BABA
  2. MUKTAR IBRAHIM RIJAU
  3. ALHASSAN GIMBA  ADAMA
  4. ZAINAB ASABE ADAMU                          …………. …DEFENDANTS
  5. AHMED MODIBO TANKO
  6. ISAH ALHASSAN
  7. SHUAIBU AUDU
  8. UMAR NDASHABA

REPRESENTATION

Rotimi Olujide Esq for the claimant

A.S. Salawu    Esq for the defendants

JUDGMENT

  1. INTRODUCTION

The claimant commenced this action vide a complaint dated and filed on 12/12/ 2018 accompanied by all the documents required by the Rules of this Court. The claimant prayed for the following reliefs;

  1. A DECLARATION that by the clear Provisions of Section 5(3) (a) and (b) of the Labour Act, CAP· LI, LFN 2004, the purported collective withdrawal of Claimant’s membership in the Niger State Universal Basic Education Board led by the 2nd – 9th Defendants vide a withdrawal of membership of Non Academic Staff Union letter dated 18th September, 2017 and solely signed by the 3rd Defendant as the secretary is unlawful, wrongful, null and void, and of no effect whatsoever.
  2.  A DECLARATION that by the Provisions of Section 5(3) (a) and (b) of the Labour Act, Cap. LI, LFN 2004, the content of the letter dated 28th November, 2017, in response to the Claimant’s letter with Ref  No: NASU/SC/205/VIII/138 affirming the withdrawal of Claimant’s, membership under the establishment of the 1st Defendant as led by 2nd to 9th Defendants is null and void, and of no effect whatsoever.
  3. A DECLARATION that by the clear provisions of Section 5(6)  of the Trade Unions Act of 2004, the 1st Defendant should release a list of the employees from whom deduction of check-off dues were made from August 2017 to October 2018 to the Claimant.
  4. AN ORDER setting aside the contents of both letters signed by 3rd Defendant, dated 18th September, 2017 and 28th November, 2017 purportedly withdrawing their membership from Claimant as null, void, and of no effect whatsoever.
  5. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant from further dealing, engaging or relating with 2nd to 9th Defendants in matters of trade union activities, and/or paying the check off dues meant for the Claimant in its establishment to the 2nd to 9th Defendants, their agents, assigns, or privies forthwith.
  6. The Claimant specifically claims jointly and severally from 2nd. 3rd 4th, 5th, 6th. 7th. 8th and 9th Defendants the sum of Nll.446,228.35 (Eleven Million, Four Hundred and Forty Six Thousand Two Hundred and Twenty Eight Naira, Thirty Five Kobo) being the total amount of check-off dues accrued and payable to the 2nd -9th Defendants by the 1st Defendant. The amount lawfully belonging to the Claimant from August 2017 till October 2018.
  7. 20% interest rate jointly and severally from 2nd to 9th Defendants on the sum of ,N11,446,228.35 (Eleven Million, Four Hundred and Forty Six Thousand, Two Hundred and Twenty Eight Naira Thirty Five Kobo) being the total sum of monthly check-off dues accrued and payable to the Claimant by the 2nd to 9th Defendants from 2017 to October, 2018. The sum which has been diverted and converted to individual use illegally and unlawfully by the 2nd to 9thDefendants.
  8. Interest rate on the total judgment sum until the judgment sum is fully and totally liquidated.
  9. Cost of this action assessed at N1,000,000.00 (One Million Naira Only) jointly and severally against the 2nd to 9th defendants.

 

 

  1. FACTS OF THE CASE

The 2nd to 9th defendants are elected members of the Executive Committee of the Claimant’s branch in the Niger State Universal Basic Education Board, Minna and were elected on the 16th day of April, 2015. Sometimes in 2017, Claimant alleged that the 2nd -9th Defendants were short-paying the Claimant in the remittance of check off dues and following the allegation of short payment, the 3rd  Defendant wrote the Claimant on behalf of other Defendants a letter dated 18th September, 2017 notifying the Claimant of the withdrawal of their membership from the Claimant’s Union. The 2nd – 9th Defendants have purportedly since August, 2017 stopped remitting the check off dues collected on behalf of the Claimant to the Claimant’s head office even after collecting same from 1st Defendant.

The suit was initially instituted against 9 defendants with the Niger State Universal Basic Education Board as the 1st defendant. It filed a memorandum of appearance, a statement of defence on 19/2/2019 and a preliminary objection on 13/3/2019 asking the court to strike out the suit or the name of the 1st defendant for want of cause of action and want of pre-action notice. The claimant did not file a counter affidavit. The preliminary objection was moved on 30/4/2019 after conclusion of hearing and the claimant did not object where upon the name of the 1st defendant was struck out.

Reference to the 1st defendant in the proceedings and cases of the parties is  therefore a reference to Niger State Universal Basic Education Board and 2nd – 9th defendants is a reference to the present 8 defendants.

  1. CASE OF THE CLAIMANT

One Abubakar Alhassan,Niger State secretary of Non- Academic Staff Union of Educational & Associated Institutions (NASU), Minna, Niger State, testified for the claimant as CW1 in line with the statement of facts as follows;

The Claimant is a registered trade union and the recognized umbrella body of Non-Academic Staff Union of Educational and Associated Institutions having branches across the country including the Niger State Universal Basic Education Board. The 2nd to 9th defendants are members of the Non-Academic Staff of Niger State Universal Basic Education Board, Minna and by extension members of the Claimant’s Union. 2nd – 9th defendants are elected members of the Executive Committee of the Claimant’s branch in the Niger State Universal Basic Education Board, Minna and were elected on the 16th day of April, 2015.  That upon the election and inauguration of the 2nd– 9th defendants as Executive Committee members of the Claimant Union, the Claimant as it is customary, sent a letter dated 5th May, 2015 with Ref No: NASU/SC/205/VOL.ill/68  confirming the election of the 2nd – 9th defendants as Executive Committee members to the Executive Chairman of the 1stdefendant.That sometimes in 2017, Claimant discovered that the 2nd -9th Defendants were short-paying the Claimant in the remittance of check off dues. That following the allegation of short payment, the 3rd  Defendant wrote the Claimant purportedly on behalf of other Defendants a letter dated 18th September, 2017 notifying the Claimant of the withdrawal of their membership from the Claimant’s Union.That the 2nd – 9th Defendants have since August, 2017 stopped remitting the check off dues collected on behalf of the Claimant to the Claimant’s head office even after collecting same from 1st Defendant.That by Claimant’s constitution, the monthly check-off dues collected by the 2nd – 9th Defendants which were to be remitted to the Claimant is N763,081.90k (Seven Hundred and sixty Three thousand Eighty One Naira, and Ninety Kobo)in which the Claimant takes 75% which is N572,3ll.42 (Five Hundred and Seventy Two Thousand, Three Hundred and Eleven Naira, Forty Two Kobo) whilethe remaining 25% which is N190.770.48 (One Hundred and Ninety Thousand, Seven Hundred and Seventy Naira, Forty Eight Kobo) is to be shared between the State Council of the Claimant and the branch.That the monthly check-off dues have been illegally diverted by the 2nd – 9th Defendants and they converted same to personal/individual uses.  The Claimant with intent to recover her dues and settle grievance, wrotethe defendants in a letter dated 20th of November, 2017 with Ref No: NASU/SC/205/VOL.III 138 inviting the Defendants for a meeting but the defendants replied Claimant in a letter dated 28th November, 2017 wherein they turned down Claimant’s invitation for a meeting. That the Claimant has been hampered from carrying out her financial obligations to other loyal and eligible members and has not been able to carry out her responsibilities properly due to this fraudulent diversion of her dues by the 2nd to 9th Defendants, and the anti- union activities of the 2nd to 9th Defendants in connivance with the 1st Defendant.

This witness tendered several documents in evidence and they were admitted and marked as exhibits AA1 to Exhibit AA11.

Under cross examination, he testified that he is the secretary of the claimant, a post earlier held by Mr. Ebiaku Davidson up to 2018. I became secretary on 1/3/2018 after the transfer of Davidson to Oyo State. The state branch has not constituted a new executive since the exit of the 2nd – 9th defendants. The returns on exhibit AA3 to AA9 were all made by Davidson.

  1. CASE OF THE DEFENDANTS

Yusuf Mohammed Baba testified for the then 2nd to 9th defendants, now 1st to 8th defendants, in line with the statement of defence as follows;

 The 2nd – 9th defendants are only staff of various Local Government education Authorities. The 1st defendant is 2nd – 9th defendants· supervisor. We ceased to be members of the claimant from the 18th September, 2017 when we forwarded our letter of withdrawal to it. That there was never a time I was confronted or a complaint made against me by the claimant on the short- payment of check- off dues. That the 3rd defendant wrote a letter of withdrawal dated 18th September, 2017 with the consent and knowledge of the collective members of the claimant within the branch in order to inform the claimant that they were withdrawing their membership from the claimant and not as a result of any allegation of short- payment. The reason for withdrawal is contained in the letter. We ceased to be members of the claimant from 18th September, 2017 when we forwarded our withdrawal letter, therefore it would not be possible for us to remit the monthly check – off dues to the claimant. We remitted the September1 2017 dues lo the claimant. That the dues we collect now from some of our members is being used to fund our new association “NON- TEACHING STAFF WELFARE ASSOCIATION”.That our response to the claimant in our letter dated 28th of November, 2017 was a re- affirmation of our resolve to withdraw from the claimant.  That the claimant has never done anything useful to its members with the check – off dues so far collected. That the withdrawal from the claimant was a collective decision of members of the claimant in our branch as shown in the letter dated 25th October, 2017 written to it by its then State Branch Secretary in person of EBIAKU DAVIDSON. We are free to join and withdraw from any association anytime the circumstances call for that.

This witness tendered exhibit YMB1.

Under cross examination, DW1 testified that exhibit AA1 is the confirmation of our branch election. Our committee continued to operate up to 18/9/2017. Our tenure was 4 years from March 2015 to March 2019. Exhibit AA2 was not written by me but by the branch secretary, I did not consent to the letter but majority consented. Our numerical strength by my estimation is about 360 to 370 members. We were 64 in number when exhibit AA2was written. We collectively formed the union. After exhibit AA2 our branch stopped paying check off dues to the National body. We started the None –Teaching Staff Welfare Association on 1/1/2018. The check off dues between September, 2017 up to date was not given to us since September 2017.Since we formed the None –Teaching Staff Welfare Association on 1/1/2018, we have not been collecting check off dues. Our Association, NOTWA, is not a registered union.

  1. FINAL WRITTEN ADDRESS OF DEFENDANT’S COUNSEL

In his final written address, learned H. A. Salawu Esq. of counsel for the defendants submitted in his issue 1 on the right of the defendants to withdraw from membership of the claimant that there is never a mode spelt out by the claimant for admitting its members into its fold other than being a civil servant with Local Government Education Authority. That since the claimant is a union just like any other union or association, admission in to it and withdrawal from it,  regardless of any extant laws, is subject to the provision of section 40 of the constitution 1999 as amended. The purpose of belonging to a trade union or an association as in the instant case is for the protection of interest as envisaged in the constitution and if that is not achieved, we strongly contend that the defendants were right declaring their intention to withdraw from the claimant.

Submitting on issue 2, whether the claimant has adduced evidence to entitle it to the reliefs sought in paragraph 21 (e), (f), (g), (h) and (i), learned counsel contended that the claimant’s reliefs in the said paragraph cannot be granted as no evidence has been led to prove the grant of the reliefs.

That claimant’s reliefs in paragraph 21 I and (e) are reliefs directed at the 1st defendant (Niger state universal Basic Education Board) who now ceased to be party to the suit and also the party against which the reliefs were sought ceased to be party in the suit.

That claimant’s reliefs in paragraphs 21 (f), (g), (h) and (i) cannot be granted to the claimant. The claimant alluded to the facts that the defendants have been the people collecting and remitting check off dues to the claimant; it is in evidence before the court that exhibit AA3 – AA.9 which were charts and cheques remitted to the claimant were not done by the defendants. That PW1, under cross examination, contradicted this assertion when he informed the court that all remittance to the claimant were normally done by the claimant’ s state Secretary as is clearly shown in exhibit AA3- AA9. Counsel submitted that the claimant failed to lead evidence to prove all its assertions on collection and non-remittance of check off dues by the defendants. JEREMIAH V STATE (2012) 14 NWLR (pt.1320) p.248.  OLUYEDE V ACCESS BANK PLC (2015) 17 NWLR (pt.1489) P.596; AKINFOSILE v IJOSE (1960) SCNLR 441.

Counsel submitted further that the claimant’s failure to object to the 1st defendant’s preliminary objection which led to the striking off of its name is fatal toclaimant’s case at least in proving the payment or collection of the dues.

Learned Counsel further made an alternative submission in the form of an objection to the jurisdiction of this Court thus;

“We submit by way of an alternative argument that the claimant‘s reliefs in paragraph 21 (f), (g), (h) and (i) bordering onpayment of check off dues are incompetent as the court lacks the vires / jurisdiction to grant that relief. Section 254c (l) (a-m) of the 1999 constitution as amended did not confer the Jurisdiction for collection of check off dues on the court”.

  1. FINAL WRITTEN ADDRESS OF CLAIMANT’S COUNSEL

Learned Benjamin A. Ogunleye Esq. of counsel for the claimant formulated 3 issues for determination and submitted in his final written address on his issue 1 which is whether the collective withdrawal made by 2nd defendant on behalf of all members is not null and void; that by section 5(3) of the labour Act and Part_ A and Third Schedule to the Trade Unions Act. It follows that the 2nd _ 9th defendants as  well as all other members of the Niger State Universal Basic Education Board, Minna are automatically members of the Claimant union. Nonetheless, in line with section 40 CFRN as amended, a member may decide to withdraw his membership at any time but it must be as provided by section 5(3)(b) of the labour Act which provides thus;

5(3)(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.

Counsel relied on 1.CAC V AUPCTRE (2004) 1 NNLR (PT 1) 1 at 32, para D-E,and2. NUPENG V MWUN (2015) 6 NNLR (Pt. 214) 354 NIC, where the Court also held that;

“The law is that workers who are members of a union and who are desirous of resigning their membership of that union can only resign individually and in writing. These two requirements most be met separately if the resignation is to be effective”.

Counsel also relied on and submitted the judgment of this court in NASU V A.O.AJAGBE&2ORS, SUIT NO: NICN/LA/407/2017, the judgment of which was delivered by my lord DR.I.J. Essien of the Lagos Judicial division on 14/2/2019.

Arguing on his issue 2 which is whether the defendants operate as 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; learned counsel submitted that  The new association “NON-TEACHING STAFF WELFARE ASSOCIATION” is not a registered Trade Union under Part A of the Trade Unions Act and so cannot be recognized and  cannot validly perform the functions of a trade union. By section 25(2) the “NON-TEACHING STAFF WELFARE ASSOCIATIONbeing an unregistered trade union is prohibited from performing the functions of a registered trade union. One of the acts which can be performed by a registered trade union ,s the collection of check off dues from their members as provided for by Section 5 (3) (a) of the labour Act. In paragraph 9 of the Statement of Defence, the Defendants stated that the dues which they are collecting is now being used to fund their new association; Non-Teaching Staff Welfare Association. They admitted collecting check off dues and remitting the dues to another unregistered association.

Arguing on issue 3 which is Whether Claimant has proved its case against the Defendants; learned counsel submitted that the election of the defendants as exco members conferred certain rights on them which include the collection of check off dues from all the eligible members in their branch and payment of same to the Claimant union. The collection of the check off dues is the sole responsibility of the Defendants. All that the State secretary does is to write a covering letter in respect of each bank draft that is forwarded to him by the 1st defendant. That paragraphs 9.10 and eleven of the claim are admitted by the defendants in paragraphs 5,7 and 8 of the defence and confirmed by exhibits AA3 – AA9. That the amount of check off dues collected is not denied but admitted. The defendants admitted collecting the check off dues and diverting it to another unregistered union.

  1. REPLY ON POINTS OF LAW BY DEFENDANT’S COUNSEL

Submitting in his reply on points of law, learned defendants counsel argued in response to issue 1 that section 5(3)(b) has been misconstrued by claimant’s counsel as the section for all intent and purposes provide for payment of and deduction of wages and is superseded by section 40 of the Constitution. (By this argument, counsel seeks to overlook judicial interpretation of the said section or to argue against judicial decisions. However, this court does not enjoy such a freedom which properly belongs to the Academia) Exhibit AA2 written and forward by the defendants which was further confirmed by Exhibit YMB 1 is enough requirements for pulling out from the claimant.

On issue 2, learned counsel submitted that issue two raised and argued by the claimant is not even before the court. So the claimant argument on that is at best, a fruitless academic exercise.

On issue 3, learned counsel submitted thatwe submit that there is no evidence before the court to grant the claimants reliefs in paragraphs 21 I, (e), (f), (g) (h)  and ( i) The striking out of the 1st defendant’s name on the 30th April, 2019 has made claimant’s reliefs relating to collection and payment of check of dues no longer live before the court. That there is no evidence before the court showing that the defendants actually collected the check off dues from September, 2017 when they withdrew membership till October, 2018. The sole defendants’ witness denied collecting check off dues for the claimant after their withdrawal from it. He only stressed in paragraph 11 of his statement on oath that they collect dues from some members to fund their new association and that is not and cannot be check off dues.

  1. ISSIUES FOR DETERMINATION

The defendant’s counsel formulated two issues for determination thus;

  1. Whether or not the defendants have the right and were right in withdrawing  from the membership of claimant via exhibit AA2 and YMB 1?
  2. Whether or not the claimant has adduced evidence to entitle it to reliefs in paragraph 21 I, (e), (f), (g),(h) and (i) as contained in its   Complaint form  and the statement of claim?

The claimant counsel also formulated three issues for determination as follows;

  1. Whether by the provisions of section 5 (3) (a) and (b) of the Labour Act, cap Ll, LFN 2004, the purported collective withdrawal made by the 2nd Defendant through Exhibit AA2 on behalf of all the members of Niger State Universal Basic education Board, Minna from the Claimant Union is not unlawful, wrongful, null and void and of no effect whatsoever.
  2. Whether by the provisions of section 2 of the Trade Unions Act, Cap T14, LFN 2004, the Non-Teaching Staff Welfare Association created by the Defendants can operate as 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.
  3. Whether by the totality of pleadings and evidence led in this case, the Claimant has proved her case against the Defendants to be entitled to judgment before this Honourable Court.

The questions formulated by the defendant are in substance the same with the 1st and 3rd questions formulated by the claimants, accordingly, the three questions formulated by the claimant are adopted by the Court. The fourth issue which is a challenge to the Jurisdiction of this court raised by the defendant, though not formulated as a distinct issue,  shall be treated as the first issue.

  1. COURT’S DECISION

Learned Counsel made an alternative submission in the form of an objection to the jurisdiction of this Court that the claimant‘s reliefs in paragraph 21 (f), (g), (h) and (i) bordering on payment of check off dues are incompetent as the court lacks the vires / jurisdiction to grant that relief. Section 254c (l) (a-m) of the 1999 constitution as amended did not confer the Jurisdiction for collection of check off dues on the court”.

The learned claimant’s counsel did not respond to this.

  1. Whether the National Industrial Court has jurisdiction over collection of check off dues.

As correctly submitted by learned counsel, the Jurisdiction of this Court is as per Section 254C of the 1999 Constitution as amended. Section 254C () provides as follows;

…………………….

From the above provision, it can be seen clearly that this court has jurisdiction over the subject matter which is check off dues. The National Industrial Court has the exclusive jurisdiction to entertain any dispute whatsoever arising from check off dues of workers unions. The objection fails and is dismissed.

  1. Whether Section 5 (3) (a) and (b) of the Labour Act, Cap Ll, LFN 2004,allows for collective or representative withdrawal from a trade union.

The claimant counsel has argued that by reason of the above provision, withdrawal from a trade union can only be individually and not collectively. Counsel also cited the cases of 1. CAC V AUPCTRE (2004) 1 NNLR (PT 1) 1 at 32, para D-E, and   2. NUPENG V MWUN (2015) 6 NNLR (Pt. 214) 354 NIC, and NASU V A.O.AJAGBE&2ORS, SUIT NO: NICN/LA/407/2017.

The response of the defence counsel isthat section 5(3)(b) has been misconstrued by claimant’s counsel as the section for all intent and purposes provide for payment of and deduction of wages and is superseded by section 40 of the Constitution.

By this argument, defendants’ counsel seeks to overlook judicial interpretation of the said section or to argue against judicial decisions. However, this court does not enjoy such a freedom which properly belongs to the Academia.

The provision of Section 5 (3) (a) and (b) of the Labour Act, Cap Ll, LFN 2004 has been severally interpreted by a line of judicial authorities including those relied upon by the claimant and this court is both persuaded and bound by those decisions.See also

PATRICK EZE & ORS v. SERGIUS UDEH & ORS (2017) LPELR-42716(CA)
where the Court of appeal per Bolaji-Yusuf JCA  held that;

It seems to me that the wordings of the proviso to Section 5 (3) of the Labour Act does not envisage a collective decision by some members of a trade union to contract out of check-off dues. By the use of the phrase “a worker”, it is clear that the intention of the law maker is that the decision to contract out of check-off system is that of an individual worker and the decision must be communicated to the concerned union in writing by the individual and when a worker has done so, the automatic deduction of check-off dues from the worker’s salary shall stop. In my view, the use of a singular pronoun in a statute is a reference to singular subject and it signifies an intention that the provision applies to each member of a class of persons separately. The use of the words “a worker”“He” and “His” in the proviso to Section 5 (3) of the Labour Act is a clear indication that an individual shall contract out of the system of check-off due in writing and not as a group. The appellants and those they represented not having contracted out individually in writing, exhibits Q – Q9, R – R15 and S – 516 on pages 24 – 42, 44 – 55, 89 – 97, 211 – 230, 250 – 281, 424 – 433, 439 – 453, 464 – 483, 499,521 and 645 – 665 are ineffective. The conclusion of the Court below that the appellants “have not opted out of the check-off system” cannot be faulted.

I accordingly find and hold that the purported withdrawal of the defendants from the claimant collectively via a letter written by its secretary on 18 /9/2017, (exhibitAA2) is null and void and of no legal effect whatsoever.

3.     Whether an unregistered union or association can carry out the functions of a registered trade union.

The learned counsel for the claimant contended that the defendants cannot collect dues and use for themselves as that is the exclusive right of a registered trade Union. Learned defendants’ counsel responded that such an issue does not arise in this case.

The defendant have averred in paragraphs 5, 9 13 and 19 of the statement of defence thus;

5. The 2nd– 9th defendants deny paragraph 9 & 10 of the statement of claim and in answer aver that they ceased to be members of the claimant from 18th September, 2017 they forwarded their withdrawal letter. Therefore, it would not be possible for the 2nd – 9th defendants to remit the monthly check – off dues to the claimant.

9. Further to paragraph 12, the 2nd – 9th  defendants aver that the dues they collect now from some of their member is being used to fund their new association “NON- TEACHING STAFF WELFARE ASSOCIATION”

13. The 2nd – 9th defendants deny paragraph 17 of the claimant’s statement of claim and in answer aver that the claimant has never done anything useful to its members with the check – off dues so far collected.

19. The 2nd -9th defendants deny paragraph 20 & 21 (a-i) of the claimant’s claim and in answer state that they are free to join and withdraw from any association anytime the circumstances call for that.

These pleadings were covered by the testimony of the DW1 who also testified under cross examination as follows;

“After exhibit AA2 our branch stopped paying check off dues to the National body”. “Our Association, NOTWA, is not a registered union”.

The formulation of this issue and the submission of learned claimants counsel are therefore in place.

The collection and use of the said check off dues is not denied by the defendants, their defence is a justification that they are free to join and withdraw from any association anytime the circumstances call for that, and the circumstances that called for that in this case is thatthe claimant has never done anything useful to its members with the check – off dues so far collected.

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;

17.   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;

2.   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) and  the judgment of this Court inNGERIA UNION OF TEACHERS(KEBBI STATE WING V IBRAHIM GARBA &7 ORS, SUIT NO:NICN/KN/17/2015  the judgment of which was delivered on 12/10/2018.

Accordingly, since the defendants association, “NON- TEACHING STAFF WELFARE ASSOCIATION” (NOTWA), as at August 2017 to October 2018, was not a registered trade union, they were not for any reason entitled to operate as and preform the functions of a trade union, to wit, the collection and use of check-off dues for the said association.

4.     Whether the Claimant in this case has proved its case against the Defendants to be entitled to judgment before this Honourable Court.

In order to properly determine this issue, it is important to remind ourselves that the main crux of this case is that the defendants are members of the Claimant in the Niger State Universal Basic Education Board branch, the defendants, as executive members of the said branch, collected and refused to remit to the claimant check off dues for the months of August, 2017 to October, 2018.

It is necessary to reproduce the relevant pleadings in the statement of facts and the statement of defence which are adequately covered by the evidence of the witnesses. The relevant pleadings are paragraphs 6, 9, 10, 11 and 12 of the statement of facts and paragraphs 2,5,6,7,9, 13 and 19 of the statement of defence.

Paragraphs 6, 9, 10, 11 and 12 of the statement of facts are reproduced hereunder.

  1. The Claimant avers that when the 2nd – 9th Defendants assumed their respective offices, they carried out their duties in line with Constitution of Claimant and were remitting the check-off dues deducted from the salaries of Claimant’s members in the Niger State Universal Basic Education Board to the Claimant accordingly.

 

  1. The Claimant avers that the 2nd-9thDefendants have since August, 2017 stopped remitting the check off dues collected on behalf of the Claimant to the Claimant’s head office.
  2. The Claimant avers that by her constitution, the monthly check-off dues collected by the 2nd– 9thDefendants which were to be remitted to the Claimant is N763,081.90k (Seven Hundred and Sixty Three thousand, Eighty One Naira, and Ninety kobo) in which the Claimant takes 75% which is N572,311.42 (Five Hundred and Seventy Two Thousand, Three Hundred and Eleven Naira, Forty Two Kobo) while the remaining 25% which is N190,770.48 (One Hundred and Ninety Thousand, Seven Hundred and Seventy Naira., Forty Eight Kobo) is to be shared between the State Council of the Claimant and the branch.

 

  1. The Claimant avers that the 2ndto 9thDefendants have stopped its remittance since August, 2017 even after collecting same from [sr Defendant. Copies of cheques and charts showing the amount remitted monthly by 2nd to 9th Defendants for the months of January to July, 2017 are hereby pleaded and shall be relied upon at trial.

 

  1. The Claimant avers that the monthly check-off dues have been illegally diverted by the 2nd– 9thDefendants and converted same to personal/individual uses.

These averments were covered by the witness statement of CW1 in paragraphs 6 to 15.

Paragraphs 2, 5, 6, 7, 9, 13 and 19 of the statement of defence in response to the above averments are reproduced hereunder.

  1. The 2nd9thdefendants admit paragraphs 4, 5 and 6 of the claimant’s statement of claim.
  2. The 2nd– 9thdefendants deny paragraph 9 & 10 of the statement of claim and in answer aver that they ceased to be members of the claimant from 18thSeptember, 2017 they forwarded their withdrawal letter. Therefore, it would not be possible for the 2nd – 9th defendants to remit the monthly check – off dues to the claimant.
  3. In further answer to paragraph 9 of the statement of claim, the 2nd– 9th defendant aver that contrary to the claimant’s averment that they stopped remitting monthly check- off due since August, 2017 , the 2nd – 9th  defendants remitted the monthly check off dues for the month of September, 2017 to the claimant. Copy of cheque and chart showing the remission of the month of September, 2017 is hereby pleaded and shall be relied on at the trial.
  4. Further to paragraph 12, the 2nd– 9thdefendants aver that the dues they collect now from some of their member is being used to fund their new association “NON- TEACHING STAFF WELFARE ASSOCIATION”
  5. The 2nd– 9thdefendants deny paragraph 17 of the claimant’s statement of claim and in answer aver that the claimant has never done anything useful to its members with the check – off dues so far collected.
  6. The 2nd-9thdefendants deny paragraph 20 & 21 (a-i) of the claimant’s claim and in answer state that they are free to join and withdraw from any association anytime the circumstances call for that.

These pleadings were covered by the evidence of the defendants in paragraphs 5, 8, 9,10, 11, 14 and 19 of the witness statement of DW1. Worthy of note and repetition is paragraph 10 of the witness statement which states as follows;

  1. That there was no way we could remit money to a union or association we no longer belong to pursuant to our withdrawal letter earlier referred to.

What appears clear and beyond per adventure from the statement of defence above is a case of admission and justification. The claimant did not need any further proof to show that the defendants collected or received the said dues but refused to remit same.

The evidence of the DW1 under cross examination that “The check off dues between September, 2017 up to date was not given to us since September 2017. Since we formed the None –Teaching Staff Welfare Association on 1/1/2018, we have not been collecting check off dues”.Does not only contradict the case of the defendants, it is an afterthought and is not worthy of believe.

The argument of the learned defendants counsel that the defendants were not the ones collecting and remitting the said check off dues is also weak in the face of the statement of defence and evidence of the defendants.If the defendants were not collecting check off dues before and after 19/9/2017, the statement of defence would definitely have said so, but the statement of defence and evidence only said the defendants withdrew their membership and so it was impossible to remit money to a union or association the defendants no longer belong to pursuant to their withdrawal letter earlier referred to.

Now, the Claimant avers that the 2nd-9th Defendants have since August, 2017 stopped remitting the check off dues collected on behalf of the Claimant to the Claimant’s head office.The defendants responded that they remitted the monthly check off dues for the month of September, 2017 to the claimant. Copy of cheque and chart showing the remission of the month of September, 2017 is hereby pleaded and shall be relied on at the trial. The said cheques were also tendered by the claimant and they were admitted and marked as exhibits AA3 to AA9, covering a period of seven months from January, 2017 remitted  in March,2017, to July, 2017 remitted in September, 2017. There is no evidence from the defendant showing remittance covering the months of August and September, 2017.

I find therefore that the defendants collected check off dues for the months of August, 2017 to the month of October, 2018 and refused to remit same to the claimants and that the claimants are rightfully entitled to a refund of the said check off dues.

Even though the defendants did not put the amount of monthly remittance due to the claimants in issue, which amount is also established by exhibits AA3 to AA9, the total of N11,446,228.35 arrived at by the claimant at N572,311.42 from August, 2017 to October, 2018, a period of 15 months, is mathematically incorrect. By my calculation, or rather, by my calculator;  which I trust more that  myself and both learned counsels for calculation, N572, 311.42 x 15 = N8,584,671.3.  Accordingly, I find that the amount of check off dues to which the claimant is entitled at N572, 311. 42 for 15 months from August, 2017 to October, 2018, is N8,584,671.3.

I also agree with learned counsel for the defendants that the striking out   of the name of the initial 1st defendant, Niger State Universal Basic Education Board, Minna renders the reliefs in paragraph 21 (c), (e) not grantable. Reliefs 21 (c), (e)  are hereby struck out as abandoned.

Relief 21(g) seeks for 21% pre judgment interest. pre -judgment interest is subject to proof of prior agreement on same by the parties. See

There is no proof of such prior agreement in this case. Relief 21(g) is refused.

  1. COURT ORDER

For all that has been found and held, and for the avoidance of doubt, the claimant’s case succeeds in part and the court declares and orders as follows;

  1. A DECLARATION that by the clear Provisions of Section 5(3) (a) and (b) of the Labour Act, CAP· L1, LFN 2004, the purported collective withdrawal of Claimant’s membership in the Niger State Universal Basic Education Board led by the 1st – 8thDefendants vide a withdrawal of membership of Non Academic Staff Union letter dated 18th September, 2017 and solely signed by the 2ndDefendant as the secretary is unlawful, wrongful, null, void, and of no effect whatsoever.

 

  1. AN ORDER setting aside both letters dated 18th September, 2017 and 28th November, 2017 purportedly withdrawing defendants’ membership from Claimant as null, void, and of no effect whatsoever.
  2. AN ORDER that the defendant shall pay to the claimant the sum of N8,584,671.3(Eight Million, Five Hundred and Eighty four Thousand, Six Hundred and Seventy one Naira, Three Kobo) being the total amount of check-off dues due to the claimants, collected by the  Defendants from August 2017 till October 2018.
  3. Cost of this action assessed at N100, 000.00 (One Hundred Thousand Naira) Only.
  4. The judgment sum and cost are to be paid within 30 days of this judgment failure upon which they shall attract 10% interest per annum.

This is the judgment of the Court and it is entered accordingly.

…………………………………….

HON. JUSTICE K.D.DAMULAK

JUDGE, NICN, ABUJA.

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