NON-ACADEMIC STAFF UNION OF EDUCATIONAL & ASSOCIATED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: OCTOBER 9, 2018 SUIT NO: NICN/YEN/48/2015

BETWEEN:

NON-ACADEMIC STAFF UNION OF EDUCATIONAL &

ASSOCIATED INSTITUTIONS (NASU)

RIVERS STATE SUBEB BRANCH PH, RIVERS STATE ……………. CLAIMANT

AND

NIGERIA CIVIL SERVICE UNION,

RIVERS STATE COUNCIL

THE CHAIRMAN NIGERIA CIVIL SERVICE UNION,

RIVERS STATE COUNCIL

STATE UNIVERSAL BASIC EDUCATION BOARD DEFENDANTS

RIVERS STATE

THE EXECUTIVE CHAIRMAN AND MANAGEMENT

OF STATE UNIVERSAL BASIC EDUCATION BOARD,

RIVERS STATE

REPRESENTATION

Mr. M.A Oha Esq for the Claimants.

I.M Ibin Esq for the 1^st and 2^nd Defendants.

Mr. Patrick Enepeli Esq (Principal State Counsel) for the 3^rd and 4^th Defendants.

JUDGMENT

The Claimant commenced this action by an Originating Summons dated the 10^th day of July, 2015 and filed on the 13^th of July, 2015. The Originating Summons was supported by a 21 paragraphs Affidavit sworn to by one Comrade Daniel Oyaghiri. Attached to the Affidavit was 11 exhibits marked as Exhibits A, B, C, D1-D7 and E. Also attached to the Originating Summons is an Affidavit of Verification and a Written Address.

CLAIMANT’S CASE IN BRIEF

The brief fact of the case as contained in the Claimant’s Affidavit in Support of its Originating Summons (paragraphs 1-19) is that the Claimant is a Trade Union and first registered on August 15, 1978 with registration No.63 under Trade Union (Amendment) Decree No. 22 of 1978 with its headquarters at Ibadan, Oyo State, with State Council offices across the States of the Federation and a liaison office at Abuja. The 1^st Defendant is also a Trade Union with the 2^nd Defendant as its Chairman. While the 4^th Defendant is the Chairman of the 3^rd Defendant.

The Claimant avers that its membership is made up of non-academic staff employees in public and privately owned educational, research and associated institutions regardless of status or salary grade levels. That a misunderstanding/misinterpretation during the administration of Olusegun Obasanjo led to the break-up of its members resulting to some members joining the “Civil Service”. These breakaways later came back to cause problems in the State Universal Basic Education Board, Rivers State (the 3^rd Defendant).

Also that the 1^st and 2^nd Defendants have been collecting half of the check-off dues from workers because the 3^rd and 4^th Defendants accorded them recognition. The Claimant also state that it has been making frantic efforts to persuade the 1^st and 2^nd Defendants to leave the 3^rd Defendant to no avail despite several letters and annexures including its Exhibits A, B and C respectively.

SUBMISSION OF THE CLAIMANT

The Claimant seeks the following reliefs from this court:

A DECLARATION that by the combined effects of Section 40 of the constitution of Federal Republic of Nigeria, Section 8 and 12 of Trade Unions Act 2004, S. 9(6) Labour Act 2004, the proper/right Trade Union to operate in the Rivers State Universal Basic Education Board is the Non-Academic Staff Union of Educational and Associated Institutions (NASU) and not the Nigeria Civil service Union (Rivers State Council).

A DECLARATION that consequent upon relief (i) above, the recognition accorded the 1^st and 2^nd Defendants by the 3^rd and 4^th Defendant – State Universal Basic Education Board, Rivers State, the Executive Chairman and Management of State Universal Basic Board, Rivers State is illegal and violates “S.8 of the Trade Union Act, 2004:

A DECLARATION that consequent upon reliefs (i and ii) above, the 2^nd Defendant is to render account of all check-off dues illegally paid to him by the 4^th Defendant and remit same to the Claimant.

A DECLARATION that the Defendants have no legal rights to stop the deduction and payment of check-off dues to the registered office of the Claimants, being the only lawful Union recognized under the Trade Union Act S.17(a)(b) and S.5(3)(a)(b) of Labour Act, 2004 to operate in the State Universal Basic Education Board, rivers State.

AN ORDER of perpetual injunction restraining the 4^th Defendant from further paying part of the check-off dues to the 1^st and 2^nd Defendants. Instead to start paying the whole (check-off dues) to the Claimants as the only lawful Union entitled by law to be paid same in accordance with section 17(a)(b) of the Trade Union Act, 2004 and S.5(3)(a)(b) of Labour Act, 2004

AN ORDER of the Honourable Court directing the 4^th Defendant to recover all the check-off dues which otherwise belonged to the Claimants but illegally paid to the 1^st and 2^nd Defendants and same paid over to the Claimants.

AN ORDER of the Hon Court directing the 1^st and 2^nd Defendants to pay to the Claimants a legal fee of N3,000,000.00 (Three Million Naira Only) which their illegal action led the Claimants to spend on the engagement of the services of a lawyer to file and prosecute this action.

The Claimant, in its Written Address, raised the following issues for determination by this court:

Whether the purport of section 40 of the Constitution of the Federal Republic of Nigeria 1999, Sections 8 and 12 of the Trade Union Act, 2004 and Section 9(6) of the Labour Act, 2004; is that a Trade Union can unionize workers in any trade group outside the trade group which that particular union belongs to and whether a union can opt out of a trade union as a group or it is an individual member who can do so.

Whether the recognition and consequent payment of half of the check-off dues to the 1^st and 2^nd Defendants by the 3^rd and 4^th Defendants is lawful and in accordance with Trade Union Act and Labour Law

Whether consequent upon issues 1 and 2 above, the claimant is not entitled to all the check-off dues illegally paid to the 1^st and 2^nd Defendants/its chairman by the 3^rd Defendant through the Executive Chairman

Whether the Defendant have any legal right to stop the deduction and payment of check-off dues from members of staff of the 3^rd Defendant

Whether, if issues (1) to (3) above are answered in favour of the Claimant, it was not legal/proper to issue a perpetual injunction against the 3^rd Defendant and its Executive Chairman from further recognizing, dealing and or paying check-off dues to the 1^st Defendant and its Chairman.

Whether, if the Honourable Court holds that the encroaching into the membership of the 3^rd Defendant by the 1^st and 2^nd Defendants was illegal, which led to the filing and prosecution of this suit that the 1^st and 2^nd Defendants shall pay back all the legal fees incurred by the Claimant to engage a lawyer in order to file and prosecute this action.

In his argument in support of his claims, the Claimant’s Counsel submitted that it is without doubt that by a community reading of the provisions of sections 40 of the constitution, 12 of the Trade Union Act and 9(6) of the Labour Act, workers have the freedom to associate with any trade union of their choice. He contends however that such freedom was not absolute as section 8 of the Trade Union Act limits the freedom of a worker’s membership of a trade union to a trade union that normally engages in the trade or industry in which such worker is engaged.

It is his further submission that the 3^rd Defendant are eligible to be members of the Claimant union and not that of the 1^st Defendant by virtue of the third Schedule, Part B of the Trade Union Act. That the purpose for organizing unions along industrial lines is in the interest of public order and not only to check the proliferation of desperate and unviable trade unions. A trade union must ascertain the trade group workers belong before unionizing them. He relied on the authorities of FOOTWEAR, LEATHER AND RUBBER PACKING NIG. LTD and NASU VS EXECUTIVE CHAIRMAN & MANAGEMENT BENUE STATE UNIVERSAL BASIC EDUCATION (Digest of Judgment of NIC) [1978-2006] 248 AT 249.

On his issue two, Learned Counsel to the Claimant contends that the 1^st and 2^nd Defendants are not the lawful trade union to operate within the 3^rd Defendant institution as such the 4^th Defendant should be restrained from recognizing the 1^st and 2^nd Defendants and paying half of check-off dues to them.

In urging the court to resolve that the 1^st and 2^nd Defendants are not entitled to check-off dues being paid to them by the 3^rd and 4^th Defendants, Learned Counsel relied on the combined provisions of sections 17(a) & (b) of the Trade Union Act and 5(3)(a) & (b) as well as the case of CAC VS AMALGAMATED UNION OF PUBLIC CO-OPERATIONS, CIVIL SERVICE, TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES (2004) NLLR (PART 1) PG 5.

Learned Counsel also argued in his Written Address in Support of the Originating Summons that the (3^rd and 4^th) Defendants do not have the requisite authority to stop the deduction and payment of check-off dues to the trade unions concerned. In buttressing his submission, Counsel contended that remission of such dues to the trade union is mandatory and that the Claimant having satisfied their registration conditions, are entitled to full payment of the check-off dues from the 3^rd and 4^th Defendants and not half as currently being disbursed. He asked the court to see the case of METAL PRODUCTS WORKERS UNION OF NIGERIA VS DORMAN LONG AND AMALGAMATED ENGINEERING LTD. (Digest of Judgment of NIC, 1978-2006)

It was Learned Counsel’s argument that having successfully proved his case for the Claimant this court should grant an injunction restraining the 3^rd and 4^th Defendants from further recognizing, dealing and or paying check-off dues to the 1^st and 2^nd Defendants. Lastly, Counsel prevailed on this court in its 6^th issue for determination to hold that the Defendants should pay back the Solicitor fees expended by the Claimant. He relied on Claimant’s EXHIBIT E – the official receipt of its Solicitors: M.A. OHA Esq.

He concluded by urging the court to grant all its reliefs.

THE CASE OF THE 1^ST AND 2^ND DEFENDANTS

The 1^st and 2^nd Defendants filed their Memorandum of Appearance dated the 1^st day of February, 2016 alongside a Motion on Notice for Extension of Time within which to file and serve their 12 paragraphs Counter Affidavit together with its Annexures (EXHIBITS NCSU 1 – 3) and a Written Address. The Motion was moved and granted on the 12^th of April, 2016 and the Counter Affidavit dated 1^st of February but filed on the 2^nd of February was deemed as properly filed and served.

The 1^st and 2^nd Defendants in their Counter Affidavit which was deposed to by the 2^nd Defendant averred that the Claimant’s action is grossly incompetent and that the Court lacked the jurisdiction to entertain the suit. He stated that that the 1^st Defendant is one of the 29 registered Trade Unions affiliated to the Nigeria Labour Congress and it is authorized to unionize workers by law. He further stated that by virtue of his EXHIBITS NCSU 1 and NCSU 2, it was the individual workers of the 3^rd Defendant who voluntarily applied to become members of the 1^st Defendant union and that in the past, the Head of Service had by EXHIBIT NCSU 3 confirmed that a civil servant is free to join any trade union of his choice. He therefore urged the court to dismiss the suit.

THE SUBMISSIONS OF THE 1^ST AND 2^ND DEFENDANTS

Learned Counsel on behalf of the 1^st and 2^nd Defendants formulated three (3) issues for determination as follows:

Whether the Honourable Court has the jurisdictional competence to adjudicate over this action as presently constituted.

Whether the membership of a trade union is not voluntary.

iii. Whether the Defendants are liable in law to pay the Claimant’s Solicitor’s professional fees for the prosecution of this suit.

In arguing its issue one, the 1^st and 2^nd Defendants submits that the instant action is grossly incompetent in law. Its grounds being that the Claimant failed to frame or formulate any issues for determination in the Originating Summons as required by law. Grant of the reliefs sought in the Originating Summons is usually preceded by and predicated upon the court’s answer to the question(s) posed for determination in the Originating Summons. He cited the cases of OLLEY VS TUNJI (2013) 10 NWLR (PT.1362) PG 275 AT 313-315; OKEKE VS CBN (2012) 9 NWLR (PT.1304) PG 89 AT 100-101 and DAGAZAU VS BOKIR INTERNATIONAL CO. LTD (2011) 14 NWLR (PT.1267) PG 261 AT 338-339. He prayed that the matter be dismissed for lacking in merit.

Learned Counsel submitted in his issue two that by the inclusion of subsection (4) to section 12 of the Trade Union (Amendment) Act, membership of a trade union became voluntary. Section 12(4) reads thus:

“Notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member”

Counsel contended that this provision is in tandem with section 40 of the Constitution which provides for the freedom of association. He further submitted that it was the workers of the 3^rd Defendant themselves who voluntarily opted to join the 1^st Defendant trade union as per its EXHIBIT NCSU 1 and NCSU 2. It was also his submission that the provision of paragraph 8 of the first schedule to the Trade Union Act is inconsistent with section 40 of the constitution and should be so declared upon the invocation of section 1(3) of the 1999 Constitution.

In arguing its issue three the 1^st and 2^nd Defendants relied on the authority of SPDC VS OKONEDO (2008) 9 NWLR (PT.1091) PG 85 AT 122-123 where the court held that it is unethical and an affront to public policy to pass the burden of solicitor’s fees to the opponent in a suit. Counsel also placed reliance on the decision of the Court of Appeal in the case of GUINESS (NIG) PLC VS NWOKE (2000) 15 NWLR (PT.689) PG 135 AT 150, PARAS A-E.

The 1^st and 2^nd Defendants finally urged this court to dismiss the action for being speculative, frivolous and a futile exercise at gold-digging.

THE CASE OF THE 3^RD AND 4^TH DEFENDANTS

The 3^rd and 4^th Defendants filed their Memorandum of Appearance and Counter Affidavit dated the 28^th October, 2015, in opposition to the Claimant’s Originating Summons and it was deemed properly filed on the 16^th of May, 2016. Also filed alongside its Counter Affidavit is one annexure marked as EXHIBIT A and its Written Argument in support of its Counter Affidavit.

The 4-paragraph Counter Affidavit was deposed to by one Harry Tonjo Meshach, the Head, Maintenance Section in the office of the 3^rd Defendant. While admitting paragraphs 1-9 of the Affidavit in Support of the Originating Summons, he denied the rest of the Claimant’s averments, stating in contrast that the workers of the 3^rd Defendant joined the 1^st Defendant out of their own volition. He also averred that the 3^rd and 4^th Defendants do not have the legal vires to declare the 1^st Defendant illegal and that the Treasury section of the Rivers State Government is now in charge of check-off dues deduction from workers’ salaries.

THE SUBMISSION OF THE 3^RD AND 4^TH DEFENDANTS

The 3^rd and 4^th Defendants formulated a lone issue for determination, to wit:

Whether the Claimant has proved its case that joining a trade union of one’s choice is not voluntary.

Counsel argued that the Claimant has failed in discharging its burden of proving its assertions. He contended that the 1999 Constitution determines the right of individuals to belong to any union of their choice. He urged the Court to give effect to the clear and unambiguous provisions of the constitution. He submitted that the Claimant is imputing extraneous objectives to the clear and unambiguous intent and purport of the Constitution and urged the Court to hold that all citizens have the freedom to join union of their choice.

1^ST AND 2^ND DEFENDANTS MOTION APPLICATION

I have carefully perused through all the processes filed before this Court by learned counsel for the Claimant and the Defendants respectively. I have also looked at the application filed by the Learned Counsel for the 1^st and 2^nd Defendants. However before I look into the Written Addresses filed by Parties in the substantive suit, the law is trite that I dispense with the interim application filed by Counsel to the 1^st and 2^nd Defendants.

The said Motion which is dated 27^th day of March, 2018 was filed on the 30^th of April, 2018. It prays this Honourable Court for an order directing the Parties to file pleadings in accordance with the rules of this Court and for such further orders as this Court may deem fit to make in the circumstance. In its supporting 12 paragraphs Affidavit, deposed to by one Joy Mgbado, a Counsel in the office of D.O. Okoro & Associates, Counsel averred that substantial dispute of facts were raised by Parties in their Affidavits which cannot be resolved without recourse to pleadings and oral evidence. Counsel specifically drew the attention of this Court to paragraphs 12-14 of the Claimant’s Affidavit in Support of its Originating Summons and paragraphs 4-7 of the 1^st and 2^nd Defendants’ Counter-Affidavit. And also stated that Exhibit NCSU 3 required to be further proved by oral evidence.

Counsel further stated that paragraph 19 of the Claimant’s Affidavit in Support of its Originating Summons cannot be resolved without recourse to pleadings and oral evidence. Counsel reminded the Court of its rules that an action which raises substantial dispute on the facts cannot be commenced or heard by way of an Originating Summons but by Complaint.

In the Written Address in Support of the Motion, Counsel to the 1^st and 2^nd Defendants raised a sole issue for determination to wit:

“Whether it is appropriate for the Honourable Court to order pleadings in the circumstance of this case.”

Further argued that commencement of an action by Originating Summons procedure can only be adopted where the facts are not materially in dispute but where the court is called upon to determine any question of construction arising from documents, instruments, enactment or the Constitution. That where facts are materially in dispute or likely to be in dispute in an action, pleadings will be ordered. Counsel submitted further that the Claimant’s depositions in its Affidavit in Support of the Originating Summons disclosed disputed facts and are of a hostile nature. He hinged his argument on the Claimant’s contention of an implied acknowledgment by the 4^th Defendant of the illegal encroachment by the 1^st and 2^nd Defendants on the membership of the Claimant and the deliberate refusal of the 1^st and 2^nd Defendants to respond to their entreaties to desist from same. He also contended that Parties have joined issues on substantial facts and has thrown up very contentious issues requiring resort to pleadings and oral evidence.

To buttress his arguments, Learned Counsel relied on the authorities of NGOGO VS CPC (2012) 14 NWLR (PT.1321) PG 518 AT 536, PARAS C-D, ETIM VS OBOT (2010) 12 NWLR (PT.1 207) PG 108 AT 156, PARAS G-H and ALFA VS ATTAI (2018) 5 NWLR (PT.1611) PG 56 AT 85-86, PARAS H-B and 91, PARAS C-F. Counsel further referred this Court to the proviso to ORDER 3, RULE 17(1) of its Rules which provides that:

“Provided that where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by Originating Summons, but by Complaint as provided for in rules 8 and 9 of this Order”.

He concluded by urging this Court to resolve the issue in its favour and to grant its Application.

CLAIMANT’S COUNTER AFFIDAVIT TO THE 1^ST AND 2^ND DEFENDANTS’ APPLICATION

The Claimant/Respondent by way of Counter-Affidavit dated and filed on the 11^th of May, 2018 and deposed to by one Comrade Daniel Oyaghiri, the Branch Chairman of the Non-Academic Staff Union of Educational and Associated Institutions (NASU), SUBEB Branch, Port-Harcourt, Rivers State; reinstated that the reason for approaching this Court was for the Court to look at the law and determine whether it is the Claimant or the 1^st Defendant that should unionize in the 3^rd Defendant institution. He stated that it was a question of law rather than facts.

The Claimant/Applicant raised two (2) issues for determination in his Written Address in Support of its Counter Affidavit in opposition to the 1^st and 2^nd Defendants’/Applicants’ Motion on Notice, to wit:

Who is to unionize in the 3^rd Defendant’s institution, whether it is the Claimant or the 1^st Defendant and its agents

Whether it is an individual that can opt out of a union or a union as a body

I must state here that Counsel to the Claimant/Respondent did not directly react to the arguments of the 1^st and 2^nd Defendants on the issue raised in their application. The Claimant’s Counsel went on an adventure which radically departs from the issue itself. This however does not mean that this Court must agree with the arguments of the Counsel to the 1^st and 2^nd Defendants as contained in their Written Address. This Court is not bound by the address of Counsel, hence this Court must still evaluate the arguments in other to reach a just decision. See the case of EYA VS OLOPADE (2011) 11 NWLR (PT.1259) PG 505. In the case of EDONKUMOH VS MUTU (1999) 9 NWLR, (PT. 620) PG 633 AT 652, PARAS E-F, the Court, per Ibiyeye JCA held that:

“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”

Claimant’s Counsel did state, however, in paragraph 5.03 of his Written Address in Support of the Counter-Affidavit that the substantive suit is based on the interpretation of the 1999 Constitution (As Amended), the Trade Union (Amendment) Act and the Labour Act relating the facts of the case. I would therefore discountenance the issues for determination raised by the Claimant and his arguments thereof save for paragraph 5.03.

Paragraph 5.03 of the Written Address of the Claimant/Respondent in support of its Counter Affidavit reiterated Counsel’s contention that the Claimant’s action seeks the interpretation of the Trade Union (Amendment) Act, the Labour Act and the Constitution of the Federal Republic of Nigeria, by this Court. He further urged the Court to refuse the Application of the 1^st and 2^nd Defendants and to grant the Claimant’s substantive reliefs.

COURT’S DECISION ON THE MOTION ON NOTICE FILED BY THE 1^ST AND 2^ND DEFENDANTS/APPLICANTS

The issue raised by the 1^st and 2^nd Defendants’ Counsel is that the Court should direct Parties to file pleadings since it is his argument that contentious issues requiring oral evidence have been raised. I am in agreement with learned counsel to the 1^st and 2^nd Defendants that Originating Summons is only appropriate where the issues sought to be determined involves the interpretation of a statute or instrument or the constitution. See the case of FAMFA OIL LTD VS ATTORNEY GENERAL, FEDERATION (2003) FWLR (PT.184) 795

The law is however settled that it is not for the Party to a case to conclude that there is likelihood of disputes in the case and as such that Originating Summons is inappropriate. That duty is for the Court and the Court will reach such a decision based on its reading and understanding of the processes filed by the Parties. Whether a matter is or is not contentious does not depend on whether the parties say it is or is not. A Respondent to an Originating Summons cannot by deliberately swearing to facts which are irrelevant and/or remote to the real issues submitted for determination, turn an otherwise non-contentious case to a contentious one. The matter must be left to the Judge to use his good sense of justice, guided by the applicable rules of the game, to weigh all the materials placed before him with a view to determining whether the matter is really contentious or non-contentious. See the case of DAGOGO & ANOR VS ATTORNEY GENERAL OF RIVERS STATE (2002) FWLR (PT.131) PG 1956 AT 1981.

I do not find any issue that is substantially contentious to warrant the matter to be transferred to the general cause list. The principal prayer of the Claimant is one that dwells on the interpretation of certain provisions of the Trade Union (Amendment) Act, the Labour Act and the Constitution. The paragraphs referred to as being contentious are merely resultant actions of the application of the laws the Claimant seeks this Court to interpret. The letter from the Head of Service speaks for itself and does not require further proof.

The application by Learned Counsel is merely an afterthought and is not based on concrete facts. The issue for determination is resolved against the Defendants/Applicants. The 1^st and 2^nd Defendants/Applicants’ application is overruled and accordingly dismissed. I hold that the appropriate mode to commence this action is by originating summons.

COURT’S DECISION ON THE SUBSTANTIVE SUIT

This brings us back to the substantive matter before this Court.

I have analysed the depositions contained in the Affidavit in Support and Counter-Affidavits opposing same in the substantive suit. I have examined all the Exhibits attached and have also read and understood the arguments of Learned Counsel in support of their averments. I have concluded that the contention of Parties dwell principally on the interpretation of the provisions of Sections 40 of the Constitution of the Federal Republic of Nigeria, the Trade Union (Amendment) Act, and the Labour Act; especially as it relates to the jurisdictional scope of the Trade Unions involved and the voluntariness or otherwise of membership of the Trade Unions. I have also observed the issue of jurisdiction of this Honourable Court raised by Learned Counsel to the 1^st and 2^nd Defendants. I have thus narrowed the issues for determination to the following:

Whether this Court is clothed with the requisite jurisdiction to adjudicate on this matter.

Whether on the proper interpretation of the provisions of sections 12 and paragraph 8 of the First Schedule of the Trade Union (Amendment) Act, 2005, 5(3) & 9(6) of the Labour Act, 2004 and 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended); the Claimant is entitled to any of the reliefs sought in its Originating Summons

On the issue of jurisdiction, the law is trite that whenever the issue of jurisdiction is raised, it must be accorded the highest degree of priority and consideration over and above any other issue, as it is very fundamental. See the case of OKEKE VS SEC & ORS (2013) LPELR-20355. Jurisdiction is the limits imposed on the power of a validly constituted Court to hear and determine issues between Parties. Where a Court embarks upon a decision in any given matter without the requisite jurisdiction, that decision is null and void and liable to be set aside. The case of A.G. LAGOS STATE VS DOSUNMU (1989) 3 NWLR (Pt. 111), 552 is of the moment.

The 1^st and 2^nd Defendants have argued that the Claimant had failed to frame or formulate issues for determination in its Originating Summons and as such, the Originating Process is incapable of igniting the jurisdiction of the court. I am deeply at loss as to the processes being referred to by Learned Counsel to the 1^st and 2^nd Defendants. The Originating Summons before this Court is dated 10^th day of July but was filed on the 13^th of July, 2015 as opposed to the 29/12/2014 contended by Counsel. The Claimant, in accordance with the rules of this Court, formulated six (6) issues for determination as contained in its Written Address in Support of the Originating Summons.

The implication of this is that the processes being quoted by Learned Counsel to the 1^st and 2^nd Defendants is totally different from that which is before the Court. The Court is enjoined to look and determine matters based on the facts and evidence before it and not otherwise. Therefore, this Court has the jurisdiction to entertain this suit as presently constituted, and I so hold. Issue 1 is resolved in favour of the Claimant. See also section 254(c) (1) (b) of the CFRN 1999 as amended.

On Issue two (2), Parties are in agreement as to the clear and unambiguous purports of the provision of section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). One of the principal canons of interpretation of the Constitution is that all its provisions must be construed without ambiguity. Its provisions ought to be given meaning and interpretation even with the imperfection of the legal draftsman. See the case of OWENA V. NSE LTD (1997) 8 NWLR PT.515.

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

The germane issue before this Court over which Parties have made vigorous submissions is whether the provisions of ‘Paragraph 8, First Schedule of the Trade Union (Amendment) Act’ runs foul or is inconsistent with section 40 of the Constitution which allows for or guarantees fundamental rights to peaceful assembly and association.

It is rather misleading that Learned Counsel to the Claimants would call upon this Court to look at section 8 of the Trade Union Act and then cite the provisions of paragraph 8 of the first schedule of the same statute. Even so, the provision so cited is not in tandem with the correct position of the statute. Counsel must ensure that they are prudent and they use original statute books while making their written submissions so as to guide the Court into reaching a judicious judgment and not to mislead the Court.

That point having been made, it is important to give insight into the relevant provisions of the Constitution and the Trade Union (Amendment) Act. Section 40 of the 1999 Constitution reads:

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

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

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

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

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

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

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

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

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

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

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

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

Paragraph 8 of the First Schedule is one of the requirements which the Rules of a Trade Union must contain before registration and should be so provided, for the reasons aforementioned. I am therefore in disagreement that section 8 of the Trade Union (Amendment) Act infringes on the freedom of association as enshrined in the Constitution or violates the voluntariness of membership of a trade union as stipulated in section 12(4) of the Trade Union (Amendment) Act.

As a point in fact, and with due respect to Learned Counsel to the 1^st and 2^nd Defendants, his arguments on section 12(4) of the Trade Union Act is tantamount to carrying inaccurate argument too far. The section is clear and unambiguous. Its legislative intent of section 12 of the Trade Union (Amendment) Act is to allow for the registration of a worker who is eligible to join a particular trade union without discrimination and that the willingness to join should be without any force or coercion whatsoever. The key phrase therein is “eligibility for membership”, which is what the Act through the provision of paragraph 8, First Schedule of the Trade Union (Amendment) Act demands of Trade Unions to include in their rules to help ascertain those who are eligible to be members of the particular Trade Union.

The Claimant is an existing trade union which is sufficiently representative of the interests of the 3^rd Defendant as provided for in the Trade Union (Amendment) Act. Workers of SUBEB (the 3^rd Defendant), which is an educational and associated institution, are only eligible to join the Claimant Trade Union by virtue of its jurisdictional scope. However, they are not under any compulsion to join or remain members of the Claimant trade union.

It is my candid view that since there already exists a trade union to represent the interests of workers of the 3^rd Defendant there was no need for the recognition of the 1^st Defendant by the 4^th Defendant within its institution. Exhibit NCSU 3 is only an advisement from the Head of Service and the Ministry of Justice and are not binding on this Court. The Head of Service had also suggested that aggrieved persons may take up the matter in a Court of law and I believe that is what the Claimant has done.

I must also note here too that payment of check off dues is a scheme incidental to trade unionism. It is a system whereby union dues are directly deducted from the salaries of workers engaged in a particular trade or industry and who are members or eligible members of the trade union that represents their interests.

I agree entirely with the submission of Learned Counsel to the Claimant that by section 5(3) of the Labour Act, deductions to pay check off dues is mandatory. The law empowers the employer to make the deduction and pay to the trade union that engages in the trade or industry of the worker concerned. This payment is based on the worker’s eligibility to be a member of the trade union concerned and not based on membership simpliciter. The worker can however opt out of this system by writing to his employers after which such deductions from his wages will cease. See the case of UDOH V. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (1990) 4 NWLR (PT. 142) 52

Any worker of the 3^rd Defendant who wishes to join the 1^st Defendant trade union as an individual member is free to do so however, check-off dues are not to be deducted from their salaries and paid to the 1^st Defendant and or 2^nd Defendant in that regard. The system of payment of check-off dues in parts to different trade unions runs foul to the intendment of the Trade Union (Amendment) Act, 2005 and should stop henceforth.

On the reliefs sought by the Claimant praying for the rendering of accounts and recovery of sums already paid as check-off dues, the 3^rd and 4^th Defendants have stated in paragraph 2(e) of their Counter-Affidavit that “the Treasury Section of the Rivers State Government has been in charge of the deduction since 2007 following the takeover of payment of salaries of staff by the government”. It will be impossible for them to render accounts nor recover such check-off dues already paid to the 1^st Defendant as they would not be in any position to give same. Therefore any order by this Court in that regard would be inoperable.

In conclusion, issue two (2) is also resolved in favour of the Claimant only to the following declarations and order by this Court:

By the combined effects of section 40 & 45(1)(a) of the 1999 Constitution, section 12 & Paragraph 8, First Schedule of the Trade Union (Amendment) Act, 2005 and section 5(3) and 9(6) of the Labour Act, 2004; the Claimant are the proper trade union having jurisdictional scope over workers of the 3^rd Defendant not the 1^st and 2^nd Defendants and the 3^rd and 4^th Defendants are to accord only the Claimant the recognition as such.

The 3^rd and 4^th Defendants or any other agency or department saddled with the role of making deductions of check-off dues cannot stop the deductions and payments of check-off dues of workers who are eligible to be members of the Claimant trade union having regards to the provisions of sections 17 of the Trade Union Act and 5(3) of the Labour Act.

The 4^th Defendant or any other agency or department so responsible with the duty of deducting and paying the check-off dues is hereby restrained from further paying half of the check-off dues or any check-off dues to the 1^st and 2^nd Defendants on behalf of the workers of the 3^rd Defendant. Payment of the full check-off dues are to be made henceforth only to the Claimant trade union being the proper and legal trade union having jurisdictional scope over workers of the 3^rd Defendant.

All other reliefs fail. The Parties are to bear their respective costs. I so hold

Judgment is hereby entered accordingly.

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE