Rivers Transport And Investment Co-Operative Union Limited -V- NIGERIA UNION OF ROAD TRANSPORT WORKERS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 4^TH FEBRUARY, 2020 SUIT NO: NICN/PHC/124/2018

BETWEEN:

RIVERS TRANSPORT AND INVESTMENT

CO-OPERATIVE UNION LIMITED (RTICUL)

MR. TUBONIMI M. B. WOKOMA

(PRESIDENT RTICUL)

MR. NEMI TAMUNO (SECRETARY RTICUL) CLAIMANTS
MR. MOSES ISAAC (FINANCIAL RTICUL)

(The 2^nd – 4^th Claimants institute this suit on behalf

of themselves and all the members of Rivers Transport

and Investment Co-operative Union Limited as

self-employed Commercial Road Transport Workers).

AND

NIGERIA UNION OF ROAD TRANSPORT

WORKERS (NURTW)

MR. O. D. KALANGO (STATE CHAIRMAN)
MR. CHUKS BOMS (SECRETARY)
MR. BOMA TOM-GEORGE (ZONAL CHAIRMAN DEFENDANTS

TAXI BRANCH, PORT HARCOURT)

(The 2^nd – 4^th defendants are sued on behalf of themselves

and all members of National Union of Road Transport

Workers, (NURTW) gainfully employed).

JUDGMENT

By an Originating Summons dated and filed on 5^th November, 2018, the Claimants initiated the instant suit against the defendants and submitted the following questions for the determination of the court:

Whether having regards to the facts of this case, the 1^st Claimant and 1^st Defendant are distinct bodies and as such independent of each other?

Whether the 1^st Defendant has the right to unionize and/or compel the members of the 1^st Claimant to become members of the 1^st Defendant?

The Claimants are therefore asking for the following reliefs against the Defendants:

A declaration that the 1^st Claimant and all its members who are self employed and engaged in transportation of goods and passengers with any type of vehicle such as cars, buses and tricycles in Rivers State are independent of the 1^st Defendant who are employed workers.

A declaration that the 1^st Claimant is the only body entitled to regulate the terms and conditions of its members engaged in transportation of passengers and goods by road with taxis, buses and tricycles.

An order of perpetual injunction restraining the Defendants herein and all class of persons and bodies they represent, their servants, agents and privies from doing any act or continuing in furtherance of any act, including issuing tickets and or emblems/stickers to, intimidating and threatening members of the 1^st Claimant (Rivers Transport Investment Co-operative Union Limited).

In support of the Originating Summons is an affidavit of 16 paragraphs deposed to by Mr. Tubonimi Wokoma, the 2^nd Claimant on record on the 5^th day of November, 2018. Annexed to the Affidavit are three (3) documents marked as exhibits ‘A’ ‘B’ and ‘C’.

In compliance with the Rules of Court 2017, the Claimants filed along with the Originating Summons a Written Address wherein the following two (2) issues were identified for the determination of this court:

Whether having regards to the facts of this case, the 1^st Claimant and 1^st Defendant are distinct bodies and as such independent of each other?

Whether the Defendants have the right to unionize and/or compel the members of the 1^st Claimant to become members of the 1^st Defendant?

It was submitted on issue 1 that, since the 1^st Claimant is a co-operative body registered under section 5(1) of the Nigerian Co-operative Societies Act, Cap C98 LFN 2004, while the 1^st Defendant is a registered Trade Union under the Trade Unions Act, Cap T14 LFN 2004, they are distinct and separate entities independent of each other.

Reference was made to section 40 of the 1999 Constitution (as amended) on the point that every citizen is allowed the right to freely associate and to choose which association, political party or trade union to belong to.

That it was on the basis of the constitutional provisions guaranteeing the right to freedom of association that the claimants who are self-employed commercial drivers formed themselves into a co-operative society (the 1^st Claimant on record). That the Constitution being the supreme law in the country, its provisions must be followed and observed as any deviation from same will render any act unconstitutional, null and void. See Hope Democratic Party V. Obi (2012) All FWLR (Pt. 612) 1620 at 1625, and Udenwa V. Uzodinma (2013) All FWLR (Pt. 674) 1.

The court was finally urged to hold on this issue that, the 1^st Claimant and 1^st Defendant being distinct and independent bodies and registered for different purposes have equal constitutional right under section 40 of the 1999 Constitution (as amended).

On issue two (2) learned counsel to the Claimants drew the court’s attention to the provisions of section 40 of the 1999 Constitution (as amended) and the First Schedule to the Trade Unions Act and submitted that, since the Trade Unions Act excludes in the membership of the 1^st Defendant “…Transportation undertaken by self employed persons” then the 1^st Defendant cannot forcefully register the members of the 1^st Claimant who are not workers but self-employed persons. That any attempt to compel people to register as members of the 1^st Defendant through issuance of permits, tickets and stickers will offend the provisions of section 40 of the 1999 Constitution (as amended). Learned counsel drew the court’s attention to its decision in the case of NURTW &Ors V. Rivers Drivers Transport Co-operative Union Limited & Ors (Suit No. NICN/YEN/448/2016) delivered on 19^th April, 2018, which according to learned counsel is on all fours with the instant case under consideration.

The court was finally urged to grant the reliefs on the Originating Summons.

Upon service of the originating processes on the Defendants, they filed a Memorandum of Conditional Appearance dated and filed on 12^th November, 2018. In opposition to the Originating Summons, the Defendants filed 13 paragraphs Counter-Affidavit deposed to by one Chief Monday Eleazar JP, the State Deputy Chairman of the 1^st Defendant on 22^nd November, 2018. Annexed to the Counter-Affidavit is one document marked as exhibit ‘A1’.

The Defendants also filed along with the Counter-Affidavit a Written Address wherein this lone issue was submitted for the court’s determination, to wit:

Whether or not this Honourable Court has the jurisdiction to entertain this suit bearing in mind that the Claimant is an ordinary co-operative.

It was submitted on the lone issue that, the jurisdiction of a court is derived from its enabling statute, referring to the case of Ohakim V. Agbaso (2011) 47 NSCQR 324 at 389. That the source of this court’s jurisdiction is section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

That this court was established to adjudicate on matters arising from labour union, employment, trade union, industrial relations and or matters connected with or arising from Factories Act, Trade Dispute Act, Trade Union Act, Labour Act, Employment Compensation Act etc, and that the Claimants who are not Trade Unions cannot maintain an action against the Defendants (a registered Trade Union).

According to learned counsel, since the Claimants are ordinary association and not a registered Trade Union this court lacks the jurisdiction to entertain this suit. References were made to the cases of Auto Bike Owners Association of Nigeria (AOWAN), Ebonyi State Branch & Ors V. Three Wheelers (Keke) Owners and Riders Association of Nigeria & Ors (unreported) Suit No. NICN/EN/19/2010 delivered on 17^th February, 2012; and Comrade Tonye Nwaobakata & Anor V. Comrade Emenike Osigor & 3 Ors (Suit No. NICN/PHC/110/2017.

That for a court to be competent to determine a suit the following must be satisfied:

It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;

The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

The case comes before the court initiated by due process of law; and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 594; Nwabueze V. Okoye (2002) 10 WRN 123 at 155; Sken Consult Nig. Ltd V. Ukey (1981) 1 S.C. 6 at 26.

That in order to determine whether a court has jurisdiction to determine a matter, it is the plaintiff’s claim before the court that should be looked at. See Adeyemi V. Opeyori (1976) 10 S.C. 31 at 51, and AG Federation V. AG Abia State & Ors (2001) 40 WRN 1.

It was further argued by learned counsel that the issue of jurisdiction which is pivotal to any court proceeding can be raised at any stage either before the trial court or on appeal even at the apex court; and that once such issue has either been raised by a party or the court suo motu it must be considered one way or the other. See Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508; Ifeanyi Okonkwo V. INEC (2003) 33 WRN 93 at 111 amongst other cases cited and relied upon by the Defendants’ counsel.

The court was finally urged to strike out this suit for want of jurisdiction with cost of Five Hundred Thousand Naira only (N500,000.00).

It is pertinent to note that, the Claimants filed a Further and Better Affidavit of 10 paragraphs deposed to by Mr. Tubonimi Wokoma (the 2^nd Claimant on record) on 8^th February, 2019. In the written address in support of the Further and Better Affidavit, the learned Claimants’ counsel submitted three (3) issues for the determination of this court, to wit:

Whether following the facts of this suit, the 1^st Claimant and 1^st Defendant are unions capable of suing and being sued?
Whether this Honourable Court has jurisdiction to hear this suit?
Whether members of the 1^st Defendant can force members of the 1^st Claimant to join the 1^st Defendant as members?

Learned counsel submitted on issue one (1) that, since the 1^st Claimant was registered under section 5(1) of the Nigerian Co-operative Societies Act, Cap C98 LFN 2004, it is a trade union and entitled to carry out its objectives for which it was registered, and can sue and equally be sued just as the 1^st Defendant. That the 1^st Claimant is not a mere association as argued by the Defendants.

On issue two (2) it was contended that, this court has the jurisdiction to hear this suit in view of the court’s decision in the case of NURTW &Ors V. Rivers Drivers Transport Co-operative Union Limited & Ors (Suit No. NICN/YEN/448/2016) delivered on 19^th April, 2018.

The court was urged to discountenance the arguments of the Defendants and assume jurisdiction in this suit.

On issue three (3) learned counsel to the Claimants merely re-emphasized his argument that the Defendants have no right to coerce members of the 1^st claimant to join the 1^st Defendant since the two bodies are distinct and independent of each other as doing that will violate the provisions of section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

COURT’S DECISION

Having carefully considered the processes, the affidavits and submissions of counsel in this matter, the issue for determination in this suit to my mind is whether the Claimants’ case is competent so as to entitle them to the reliefs being sought in this suit.

The summary of the Claimants’ case against the defendants is that since the 1^st claimant is a registered co-operative society and distinct from the 1^st defendant which is registered trade union, its members cannot be forced by the 1^st defendant to join its membership. The relevant paragraphs of the affidavit in support of the Originating Summons are hereunder reproduced for ease of reference:

That the 1^st Claimant is a co-operative society with other affiliate unions/societies made up of self-employed members with its offices at No. 34 Ikwerre Road and No. 4 Churchill, Port Harcourt, Rivers State, Nigeria having been duly registered under the law.

That the 1^st Claimant is a body known to law and so can effectively bring this action within the jurisdiction of this court. The 1^st Claimant’s Certificate of Registration is hereby attached and marked as Exhibit “A”.

That the 1^st Defendant is a registered Trade Union under the Trade Union Act. Cap. T14 Laws of the Federation of Nigeria, 2004 and as such, can sue and be sued. The Certificate of Registration of the 1^st Defendant, National Union of Road Transport Workers is hereby attached and marked as Exhibit “B”.

That I know as a fact that the 1^st Defendant is a trade union registered under the relevant laws of the Federation of Nigeria and not a Co-operative society.

That the 2^nd Defendant is the State Chairman, the 3^rd Defendant is the Zonal Chairman, Taxi Branch, Port Harcourt of the 1^st Defendant.

That membership of the 1^st Claimant is voluntary and it is for economic reasons.

10.That my counsel, I. W. Bob-Manuel Esq. informed me in his office on 17^th October, 2018 and I verily believe him that members of the 1^st Defendant ought to be only road Transport Workers who are gainfully employed by Transport Companies earning salaries and not open to self-employed road transport workers at the motor parks, bus stops, loading bays, taxi stops etc.

11.That since Registration there has been pressure by the 1^st Defendant to coerce the 1^st Claimant as its member which has always met strong resentment.

12.That the Defendants have made forceful conscription of members of the 1^st Claimant by imposing various National Union of Road Transport Workers tickets and stickers on members of the 1^st Claimant. Copies of the said tickets and stickers are hereby attached and marked as Exhibit “C”.

13.That it is very urgent for this court to interpret the law as regards the operation of both the 1^st Claimant and the 1^st Defendant and as it affects its respective members to enable both parties operate their transport business freely without interference by one party on the others.

What is clearly not in doubt in this suit is the fact that while the 1^st Claimant on record is a co-operative society registered by the Rivers State Government on the 12^th of April, 2001 pursuant to the Nigerian Co-operative Societies Decree No. 90 of 1993 (now Cap. N98 LFN, 2004), the 1^st Defendant on the other hand is a trade union registered on the 15^th of August, 1978 pursuant to the Trade Unions (Amendment) Decree No. 22 of 1978 (now Cap. T14 LFN, 2004). See exhibits “A” and “B” annexed to the Originating Summons.

The pertinent question in this case considering the status of the 1^st Claimant is whether this court has jurisdiction over this matter, the 1^st Claimant being a co-operative society.

The learned counsel to the Defendants submitted that, by virtue of section 254C(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this court has no jurisdiction to determine this suit because the 1^st Claimant on record is an association and not a registered trade union.

The law is trite that, court’s jurisdiction is provided for by law be it the Constitution or the statute establishing the court. The jurisdiction of this court is clearly provided for by section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 254C(1) (a) and (b) provides thus:

“254C(1)Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a)relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

(b)relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Laws relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws.”

It is evident from the constitutional provisions providing for this court’s jurisdiction reproduced above that, this court has exclusive jurisdiction over trade unions duly registered under the Trade Unions Act, Cap. T14 Laws of the Federation of Nigeria, 2004, and from exhibit “A” annexed to the Originating Summons, the 1^st Claimant is not a registered trade union but a co-operative society. The only organizations eligible to submit inter or intra union disputes for resolution before this court are registered trade unions, and not any other association. To therefore argue that this court has jurisdiction over co-operative societies/associations as argued by the learned Claimants’ counsel is to turn the law on its head. This court whose jurisdiction is circumscribed by section 254C of the Constitution does not have jurisdiction over associations such as the 1^st Claimant. The 1^st Claimant not being a trade union registered under the Trade Unions Act, Cap. T14 Laws of the Federation of Nigeria, 2004 but an association or co-operative society though registered under the law (the Nigerian Co-operative Societies Decree No. 90 of 1993 (now Cap. N98 LFN, 2004), and since the subject matter of the suit has nothing to do with employer/employee relationship, this court has no jurisdiction to entertain this suit. See the decisions of this court in the cases of Comrade Tony Nwaobakata & 1 Other V. Comrade Emenike Osigor & 3 Others (Unreported) Suit No. NICN/PHC/110/2017, decision of Hon. Justice Auwal Ibrahim, PhD (of blessed memory) delivered on 22^nd February, 2018; Auto Bike Owners Association of Nigeria (AOWAN), Ebonyi State Branch & Ors. V. Three Wheelers (Keke) Owners and Riders Association of Nigeria & Ors. (Unreported) Suit No. NIC/EN/19/2010 delivered on 17^th February, 2012.

The learned Claimants’ counsel drew the court’s attention to the case of National Union of Road Transport Workers (NURTW) & Ors. V. Rivers Drivers Transport Co-operative Union Limited & Ors (Unreported) Suit No. NICN/YEN/448/2016, and urged the court to hold that it has jurisdiction to hear and determine this matter since the facts of the two cases are on all fours.

Having gone through the case of National Union of Road Transport Workers (NURTW) & Ors. V. Rivers Drivers Transport Co-operative Union Limited & Ors (Unreported) Suit No. NICN/YEN/448/2016 delivered on 19^th April, 2018, I do not agree with the argument of the learned counsel to the Claimants that the facts of the case are the same as that of the instant case. While in that case the 1^st Claimant (NURTW) a duly registered trade union instituted the suit asking the court to declare that the 1^st Defendant and all other class of persons who engage in transportation of goods and passengers with any type of vehicle such as cars, buses and tricycles in Rivers State without being registered as a trade union, under the Trade Unions Act, Cap. T14 LFN, 2004 lack the power to do so, and that they cannot perform the activities of the 1^st Claimant (a registered trade union), in this case the 1^st Claimant that initiated the suit being a co-operative society (not a registered trade union) cannot confer jurisdiction on the court.

In the circumstance, this court cannot grant the reliefs in this suit as the suit lacks merit and same is hereby struck out for want of jurisdiction.

Judgment is entered accordingly.

I make no order as to cost.

Hon. Justice P. I. Hamman

Judge

REPRESENTATION: