IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: WEDNESDAY 5TH FEBRUARY, 2020
Suit No: NICN/YEN/08/2018
BETWEEN:
- ROAD TRANSPORT EMPLOYERS’ASSOCIATION
OF NIGERIA BAYELSA CHAPTER CLAIMANTS
- COMRADE ANTHONY OKPEKU
AND
- MR. OLAYIWOLA OLABODE DEFENDANTS
- OBORO EXPRESS MOTORS
REPRESENTATION
Mr. W.D. Lambard Ogbari Esq with Z.E. Apprela Esq for the Claimants.
E.R. Aminu Esq holding the brief of J.A. Gbadamosi Esq for the Defendants.
JUDGMENT
The claimant initiated the process of this action by way of an amended originating summons dated the 31st day of October, 2018 and filed on the 1st day of November, 2018. He raised a sole issue for determination as follows:
Whether by virtue of the provisions of the Trade Unions Act, the defendants herein can carry on the business of road transportation in Bayelsa State as a union with members subscribing to his park.
It was upon this question that the claimant sought for the following reliefs from this court?
- A DECLARATION that the Defendants are not enabled by law to function as a trade union in the Road Transportation Sector and to solicit members subscription for the purposes of loading and transporting commuters and goods in a motor park.
- A DECLARATION that the defendants to engage in road transportation business, they must subscribe to or affiliate with one of the two unions recognized by law in the road transportation sector.
- AN ORDER of perpetual injunction restraining the defendants from carrying on the business of road transportation as a trade union in any motor park or at all by collecting subscription and/or membership fee from drivers.
The Claimant accompanied his summons with an affidavit and a written address.
The first Defendant entered a Conditional Appearance on the 11th day of June, 2018 before filing its Counter Affidavit dated 11th June, 2018. The 2nd Defendant who was not formally joined in the suit was joined via a motion for joinder filed by the 2nd Claimant dated the 19th day of June, 2018. The 2nd Defendant filed a Notice of Preliminary Objection dated the 3rd June, 2019.
CLAIMANT’S CASE IN BRIEF
The Claimant states as a fact that it is one of the two trade unions registered and recognized to carry on road transportation business in Nigeria. The 1st Defendant prior to the cause of action was the park manager (agent) of Oboro Express Motors (the 2nd Defendant) which had a park by the premises of the Claimants. The 2nd Defendant had branded vehicles which belonged to the company used for transportation business and about April 2017 it folded up as all its vehicles have packed up. The Claimant further states that the 1st Defendant remained on the premises of the 2nd Defendant and started to interfere in the operations of the Claimant and luring the Claimant’s drivers members to his premises for quick loading and collecting loading fee and daily ticket from them.
Upon becoming aware of the activities of the 1st Defendant, the 2nd Claimant accosted him and demanded for an explanation but the 1st Defendant retorted that he cannot be stopped. Claimant states that despite several warnings to the 1st Defendant to desist from his actions proved abortive, and the 1st Defendant even bragged about his connections in high places. The Claimant states that he involved the Police to restrain the Defendants from causing a breach of the peace but the Police could not make an order to the effect that the Defendants cannot carry on road transportation business as union, hence this suit.
THE SUBMISSIONS OF THE CLAIMANT
In their submission, the Claimants referred this Honourable court to section 1 (i) of the Trade Unions Act. Learned counsel submit that the definition of a trade union in the above stated provision establishes a trade union for a limited or specified purpose. Refers to section 2 (1) of the Trade Unions Act. Learned counsel argued that the 1st defendant and any individual person cannot carry on road transport business as a union unless it has been registered under the trade unions act as such, and until such registration, it cannot perform any act in furtherance of carrying on as a union in the transport business.
Learned counsel submit that the 1st claimant is listed as number 29 in Part C of the 3rd Schedule to the Trade Unions Act and its scope is adapted to that of the National Union of Road Transport workers which stipulates that all workers engaged in transportation of passengers and goods by road, excluding the transportation of petroleum by road and transportation undertaken by self employed persons. This position was confirmed by the Supreme court in the case of N.U.R.T.W Vrs. RTEAN (2012) 10 NWLR PT 1307 page 170 @ 196 paras A –F. Refers to Section 3 (2) of the Trade Unions Act. Learned counsel submit that a combination of all the applicable sections of the Trade Unions Act prohibits the Defendants from carrying on as a Trade Union in Road Transportation and more particularly to cause members of the Claimants’ union to join and pay fees to them to the detriment of the Claimants.
In conclusion, learned counsel submit that the issue for determination raised by the claimants should be resolved in their favour and this Honourable court grants all the prayers contained in the originating summons.
THE CASE OF THE 1ST DEFENDANT/RESPONDENT
The 1st Defendant/Respondent in response to the claimant’s originating summons filed a seventeen paragraphs counter affidavit dated the 11th day of June, 2018 and filed on the same date. Attached to the counter affidavit are two annexures marked as ‘exhibit OE1 and OE2’. The counter affidavit is supported by a written address. In the written address the 1st Defendant/Respondent formulated three issues for determination as follows:
- Whether the affidavit in support of the originating summons meets the requirement of the law and or whether the applicants have placed all the necessary materials and or facts before the court warranting the Honourable court to grant their reliefs.
- Whether the Claimants’ claim had disclosed any reasonable cause of action against the defendant warranting the claimant to have locus standi to institute this suit.
- Whether Claimants’ suit as presently constituted is competent and or whether the Honourable court lack the vires and or competence to entertain the manner.
On issue one, whether the affidavit in support of the originating summons meets the requirement of the law and or whether the claimants have placed all the necessary materials and or facts before the court warranting the Honourable court to grant their reliefs. Learned counsel submit that the applicants failed to place all relevant materials before the court warranting the Honourable court to grant their reliefs. The Claimants failed in their depositions to place before the court material facts with respect to the names and detail of their drivers allegedly lured by the 1st Defendant to his premises for the quick loading and collection of loading fee and daily ticket. Learned counsel referred this Honourable court to paragraphs 7, 8, 9, 10, 11, 12, 13 & 14 of the Defendant’s Counter Affidavit and Exhibits OE1 & OE2 which proves that Oboro Express has being and still in existence and never folded up nor their vehicles packed up. Learned counsel argued that it is trite law that any affidavit evidence that contains falsehood and or vague depositions is to be struck out as same cannot be relied upon. Cited the case of Mokie vrs Ezeuko (2001) FWLR (PT. 38) 1275 @ 1289 paras C – D. Learned counsel urged this Honourable court to strike out the Claimants’ affidavit.
On issue two, whether the Claimants’ claim had disclosed any reasonable cause of action against the Defendant warranting the claimant to have locus standi to institute this suit. Learned counsel answered in the negative. He said it is the cause of action that makes an action in court possible and it is the affidavit in support of the claimant’s originating summons in the instant case that determines the accrual of cause of action to the claimants. Learned counsel referred this Honourable court to paragraphs 3 – 11 of the Claimants’ affidavit in support of the originating summons. Learned counsel argued that the case of the Claimants as seen in their affidavit in support is that they are one of the two recognized union by law to carry on road transport business and that the Defendant folded up but still remained on the premises and collecting loading fee and daily ticket from them. Learned counsel contend that the act of the Defendant did not affect the right of the Claimants nor caused any injury to the Claimants. For the Claimants to maintain this action they are duty bound to establish evidence that proves that the land/premises where the Defendants are operating belong to them.
Learned counsel submit that the 1st Defendant in his counter affidavit deposed that he is only a manager to Oboro Express and that the premises he is operating belong to his employer as well as the vehicles loading therein. The claimants confirmed these averments in paragraphs 4, 5 and 6 of their affidavit in support of their originating summons. Learned counsel contend that the claimants affidavit has disclosed no cause of action. Referred to the cases of Society BIC S.A vrs Charzin Industries Ltd (2014) ALL FWLR (pt. 739) page 1212 – 1217 ratio 6; Bessoy Ltd vrs Honey Legon (Nig) Ltd (2010) ALL FWLR (PT. 503) 1380 – 1388 ratio 10 & 11. Learned counsel submit that the Claimant did not disclose any cause of action and as such a party will be de-robed of locus standi to institute the suit. Cited Adelusi vrs Gov. Lagos State (2016) ALL FWLR (part 821) 1572 – 1578 ratio 3. Learned counsel further submit that the provisions of the trade union interpreted by the claimants to establish their cause of action does not in any way confer or donate reasonable cause of action or locus standi to them. Learned counsel reproduced sections 1 (1), 2 (1) and section 3 (2) of the Trade Union Act. Learned counsel argued that it is trite law that ordinary meaning should be given to a clear and explicit language used by the law makers in a statute and the court is bound to give effect to it. He said the provisions of section 1(1), 2 (1), 3 (2) and Part C, Third Schedule of Trade Union Act are simple and clear without any ambiguity. Refers to the case of Amuda Yusuf Animashaun & Anor vrs Olayinka Ogundimu & Ors (2015) LPELR 25979 (CA).
Learned counsel argued that the said provisions of the trade union act is only applicable to those who formed union for the purpose of either transport trade or any other business. In fact, part c to the 3rd schedule categorically excludes the self employed individual which is the case of the defendant in this suit. Learned counsel contend that the claimants have failed to discharge the burden imposed on them to justify competence of this suit against the defendant. Refers to the case of S.O & S.S Ltd vrs Adun (2016) ALL FWLR (PT. 860) page 1102 – 1105 ratio 3.
Learned counsel submit that assuming without conceding that this Honourable court hold that the Claimants have disclosed a cause of action or that the provision of section 1 (1), 2 (1), 3 (2) and Part C of the 3rd Schedule of the Trade Union Act are applicable to the Defendants, Learned counsel submit that the provisions of the Trade Union Act is inconsistent with the provisions of section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended which conferred right to peaceful assembly and association to every citizen of this country. Giving credence to the said provision of trade union in line with the position of the Claimants is to forcefully make the defendant to join their trade union before he can engage in his self employed transport business. Referred to Section 40 of the constitution Federal Republic of Nigeria 1999 as amended. On supremacy of the constitution counsel referred to Section 1 (1) & (3) CFRN, 1999 as amended, Ugboji vrs State (2018) ALL FWLR part 926 page 68 – 73 ratio 4. Learned counsel urged this Honourable court to declare all the provisions of the Trade Union Act cited as void in the context of this matter.
Learned counsel submit that the suit of the Claimant was not initiated through the due process of the law. Originating summons, which is the procedure by which this suit was initiated is not the appropriate procedure by which this suit was initiated because the facts of the case are contentious and can only be initiated by a complaint in accordance with the rules of this court. Cited Order 3 Rule 1 (a) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. Learned counsel submit that from the facts of the affidavit in support of the application the issue is not for the interpretation of an instrument, agreement, enactment or constitution but the right of the defendant to engage in individual transportation business. The dispute between the parties in this suit is contentious and so cannot be decided in an originating summons proceedings and can only be decided after all parties that are interested in the dispute are given opportunity to be heard and cannot be done by only affidavit evidence.
Learned counsel contend that the fact deposed to in paragraphs 3, 4, 5, 6, 7, 8, 9 & 10 of the claimant’s affidavit are contentious facts as they are mainly statement of things which the Claimants alleged happened at a particular time which the 1st Defendant denied in paragraphs 5 – 17 of his counter affidavit. Learned counsel submit that the dispute between the parties in this case are contentious and can only be decided in a case commenced by complaint. See Famfa Oil Limited vrs Attorney General of the Federation (2003) 18 NWLR (part 852) pg 453 @ pg 467 paras D – G.
On issue three, whether the Honourable court has the vires and or competence to entertain this suit. Learned counsel submit that jurisdiction is a fundamental issue in litigation and no litigant can confer it on a court where the constitution does not give the court such jurisdiction. Cited the cases of UBA Plc & Ors vrs Ademola (2008) LPELR – 5066 (CA); Madukolu vrs Nkemdilim (1962) 1 ALL NLR 587. Learned counsel argued that the Claimants’ suit did not disclose any reasonable cause of action and by implication the claimant lack locus standi to institute this suit, hence rob this court of its jurisdiction to entertain same. Learned counsel submit that jurisdiction is determined by the claim of the Claimant. Refers to Okulate vrs Awosanya (2000) 2 NWLR (pt. 647) 56 pp 37 – 38. The affidavit in support of the originating summons filed by the claimants does not disclose any cause of action and this Honourable court cannot assume jurisdiction to entertain same. Learned counsel submit that jurisdiction is fundamental to adjudication and ought to be settled before trial. Refers to Uti vrs Onoyiwe (1991) 1 SCJN 25 @ 49.
In conclusion, learned counsel urged this Honourable court to refuse all the reliefs sought by the Claimants and accordingly dismiss and or strike out the Claimants’ suit with substantial cost.
THE DEFENDANTS’ PRELIMINARY OBJECTION
In opposition to the Claimants Originating Summons, the 2nd Defendant filed a Notice of Preliminary Objection dated the 3rd day of June, 2019 and filed on the same date. The application is brought pursuant to section 6 (6) a of the constitution of the Federal Republic of Nigeria 1999 as amended. The 2nd Defendant/Applicant is praying this Honourable court for an order dismissing this suit or striking it out. The ground upon which the objection is brought is that this Honourable court lacks the vires and or competence to entertain the matter.
In support of this application, the applicant filed a written address where the applicant formulated a sole issue for determination as follows:
Whether the Honourable court lacks the vires and or competence to entertain this suit.
Learned counsel submit that it is trite law that for a person to be made a party to an action such a person must either be a natural or artificial person which is a body vested with the power to sue or be sued. Learned counsel contend that the 2nd Defendant/Applicant does not exist and lacks juristic personality. The suit constituted against the 2nd defendant is not competent and same rob the Honourable court jurisdictional power to entertain same. Learned counsel contend that it is trite law that the issue of jurisdiction is fundamental in litigation and no litigant can confer it on a court where the constitution does not give the court such jurisdiction. Cited UBA Plc & Ors vrs Ademola (2008) LPELR 5066 (CA); Madukolu vrs Nkemdilim (1962) 1 ALL NLR 587. He said the second Defendant does not exist as a legal entity as it lacks the capacity to sue and be sued. By the originating summons filed Oboro Motors was named as the 2nd Defendant, the name which is not known to law. Therefore, the Claimant’s suit is bereft of a proper party before the court which is a condition precedent to the institution of this suit. Learned counsel submit that the issue of jurisdiction is fundamental and ought to be settled before trial in order not to render the whole process a nullity where the court has no jurisdiction. Cited Uti vrs Onoyiwe ((1991) 1 SCJN 25 @ 49; Ajayi vrs Adebiyi (2012) ALL FWLR (PT 634) 1 @ 5 ratio 5. Learned counsel contend that jurisdiction is determined by the claim of the Claimant. Refers to Okulate vrs Awosanya (2000) 2 NWLR (pt. 646) 56 at 37 – 38 (paras G – B).
Learned counsel argued that the claimant referred the 2nd Defendant as a company which forms the capacity of suing as 2nd Defendant in paragraph 5 of their affidavit in support of the originating summons. Learned counsel contend that the onus is on the Claimants who claim juristic personality of the 2nd Defendant to prove that status and the Claimants failed to do so. That it is trite law that juristic personality of a party is very fundamental to the assumption of jurisdiction of the court. Refers to Principal Govt. Sec. Sch. Ikachi vrs Igbudu (2006) ALL FWLR (pt. 299) 1420 @ 1422 – 1423 ratios 1, 2, 3 & 4. Learned counsel further submit that once the juristic personality of a corporate body is challenged, the claimant is duty bound not only to prove the existence of the 2nd Defendant as a corporate body but also to provide certificate of incorporation to establish such fact. Refers to Goodwill & Trust Inv. Ltd vrs Witt & Bush Ltd (2011) ALL FWLR (PT. 576) 517 @ 523 ratio 8. And for a court to assume jurisdiction, parties before it must be competent, learned counsel submit that the 2nd Defendant is not a proper party since its neither a natural nor artificial person or a corporate body. Cited Good Will & Trust Inv. Ltd vrs Witt & Bush Ltd (Supra). Learned counsel submit that by the provisions of the constitution the court is clothed with wide inherent powers to exercise its discretion for the purpose of doing justice. Cited section 6 (6) (a) of the constitution of the Federal Republic of Nigeria as amended, and Ikechukwu vrs Nwoye (2014) ALL FWLR (Pt 724) 1010 @ 103 – 104 ratios 1 & 3.
Finally, learned counsel urged this Honourable court to dismiss and or strike out the suit with substantial cost.
The Claimants/Respondents did not file any process.
COURT’S DECISION
After a careful analysis and x-raying of the entire proceedings and the processes filed and/or admitted in this Court as well as a thorough observation of the actions, inactions, arguments and all the processes filed through the trial, by the Parties in their final arguments and address them seriatim.
Now before I examine the cardinal issue that has reared its head in this trial, it is relevant that I first touch on some questions that are impossible to ignore and which are remarkably important.
I must first comment on the threshold issue of jurisdiction, which argument was set in motion by the Defendant’s Counsel. It is an elementary principle of law that Jurisdiction is the lifeblood of any adjudication, hence, whenever it is challenged, the general rule is that the objection is taken first to resolve the challenge before taking any step in the substantive matter. See Olutola v Unilorin (2004) 18 NWLR (pt.905) P. 416; Ogboru & Anor v Uduaghan & Ors (2012) 2-3 SC, p. 66; A.G. Lagos State v Dosumu (1989) 3 NWLR (pt.111) P. 552. It will indeed be futile and a lack of wisdom for a court to embark on the journey of determination of the substantive matter without first seeking direction as to its jurisdictional competence.
Learned Counsel for the Defendants made submissions on this subject on the grounds that the Claimants’ action is bad for the fact that the originating processes filed by the Claimants does not disclose any cause of action against the Defendants.
Now the term ‘cause of action’ has been defined severally by the Courts as ‘the entire set of circumstances giving rise to an enforceable claim. It is a fact or combination of facts which when proved would entitle the Claimant to a remedy against the Defendant’. In determining whether a cause of action exists in a case, the court has to look at and consider the facts as pleaded in the statement of claim filed by the Claimants on which the claims made are predicated. The facts must be such that prima facie, they show a right in the Claimant which has been violated or infringed upon by the acts of the Defendant that would entitle the Claimant to approach the court for remedy. See Ayabode v Balogun (1990) 5 NWLR (pt. 151) P. 392; SPDC Ltd v Nwaka (2003) FWLR (Pt.144) P.506; Seagull Oil Ltd & Ors v Moni Pulo Ltd & Ors (2011) 15 NWLR (Pt. 1271) P. 525.
Whatever the case, the law is trite that the Court has to look at the Originating Processes to determine any question regarding cause or causes of action. From the Originating Processes filed by the claimants, the claimants had instituted this action for this court to make a declaration that the defendants cannot operate as a Trade Union in the Road Transportation Sector, and also that the defendants must subscribe to or affiliate with one of the two unions recognized by law in the Transportation sector, and also for this court to restrain the defendants from carrying on Transport business in Bayelsa State as a Trade Union.
Therefore from these issues outlined in the originating processes its not correct to say that the suit discloses no reasonable cause of action against the defendants. Hon. Justice Niki Tobi JSC (of blessed memory) in Rinco Construction Co. Ltd vrs Veepee Industries Ltd (2005) 9 NWLR (pt. 929) pg 85 defined cause of action to mean all those facts or combination of facts which gives the plaintiff a right against the defendant with some chances of success. That chance no matter how infinitesimal, must be considered. The mere fact that a case is weak or unlikely to succeed is not sufficient ground for striking out the suit. See Barbus & Co. Nig. Ltd and Anor vrs Okafor Udeji & Anor (2018) LPELR – 44501 (SC).
Let me state here, on the authorities that it is only where the originating processes discloses no cause of action and the court is satisfied that no amendment, however unserious, will cure the defect that the statement of claim will be struck out and the action dismissed. In the instant case the cumulative effect of the material facts stated in the originating summons, although scanty, but still shows ex-facie that there is cause of action. And I so hold.
On the issue of the absence of locus standi of the Claimants to institute this very action, the term ‘Locus Standi’, on the authority of Ojukwu v Ojukwu & Anor (2008) 18 NWLR (pt. 1119) pg. 439; denotes legal capacity to institute proceedings in a court of law. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint laid before the Court.
In every civil suit, depending on the fact of each case, a Claimant ought to show that he has adequate or exceptional interest which is adversely affected by the acts or conduct of his opponents. The extent of protection to be accorded such interest or whether the interest is worth any form of protection is, however, a matter of judicial discretion, which often varies according to the remedy sought. Ojukwu v Ojukwu & Anor (supra)
There are two (2) tests for determining if a person has locus standi, which include (i) The action must be justiciable and (ii) There must be a dispute between the parties. See the case of Barbus & Co. Nig Ltd & Anor v Okafor-Udeji & Anor (supra). A peep into the Claimants’ processes show some elements of misunderstanding and dispute between the Parties. The Claimants have prayed this Court for grant of certain orders including an order restraining the Defendants from interfering in their activities as well as to prevent Defendants from superimposing themselves with the activities of the Claimants. And the claimants were able to show that the 1st Claimant is a registered Trade Union saddled with the responsibility of Transportation business, and that the Defendants not being a Trade Union but still are super imposing themselves on the Transport business which is the exclusive jurisdiction of the 1st Claimant, therefore its not the correct position of the law to state that the Claimants have no locus standi to institute this action. And I so hold.
Now the weather having become cleared, I will now delve into the substantive suit. The main crux of this suit is that the Claimants instituted this action by a way of originating summons for this court to interpret some provisions of the Trade Unions Act. The Claimants contend that the Defendants are not enabled by law to function as a Trade Union in the Road Transportation Sector. And that they cannot solicit for members to subscribe for the purpose of loading and transporting commuters and goods in a motor park. And that if at all the Defendants intends to carry out a Transportation business, then they must subscribe or affiliate with one of the two unions recognized by the law in the Road Transportation Sector.
In their own part, counsel to the Defendants submits that the provisions of the Trade Unions Act is only applicable to those who formed union for the purpose of either trade or other business. He said Part C to the 3rd Schedule categorically excludes the self employed individuals which he said is the case of the Defendants in this suit. It is also the contention of the counsel to the Defendants that the provisions of section 1 (1), 2 (1), 3 (2) and Part C of the 3rd Schedule to the Trade Unions Act are inconsistent with the provision of Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which confers the right of peaceful assembly and association to every citizen of this country. He said given credence to the said provisions of the Trade Unions Act in line with the position of the Claimants is to forcefully make the 1st Defendant to join their trade union before he can engage in his self employed transport business. Counsel also argued that this suit cannot be commenced by a way of originating summons, which I quite disagree with the line of reasoning. In the sense that what the claimants wants from this court is the interpretation of some provisions as contained in the Trade Unions Act, and which is one of the issues that a Claimant can have recourse to originating summons.
The germane issue before this Court over which Parties have made vigorous submissions is whether the provisions of sections 1 (1), 2 (1), 3 (2) and Part C 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. 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 vrs 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.
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 vrs Chike Obi (1961) ALL NLR 186; Health Practitioners & 2 Ors vrs 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. Section 12(4) of the Trade Union (Amendment) Act is clear and unambiguous. Its legislative intent of section 12 of the Trade Union (Amendment) Act is to allow for the registration of a person 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.
That said, there is nothing before this court which tends to suggest that both the 1st and 2nd Defendants are trade unions. The 1st Defendant deposed in paragraphs 7 – 16 of the Counter Affidavit that he is the General Manager of the 2nd Defendant. And that the 2nd Defendant is into Transportation business shuttling Amassoma – Yenagoa axis. And that they only rented a parcel of land for the purpose of using same as a motor park, and that they never acted or performs the functions of a trade union. And all these facts deposed were never controverted by the claimants; and this court must deemed same as admitted by the Claimants. And its trite that facts admitted need no further proof. See section 123 of the evidence act.
Furthermore, it’s not correct to say that the defendants must subscribed to or affiliate to any of the recognized trade union before the defendants can indulge in Transportation business, because to say that it amounts to taking Trade Unionism too far and a negation to Section 40 of the CFRN 1999 (as amended). Its only when one ascribed to the membership of a Trade Union that one must be bound by the provisions of the Rules and Regulations of that Trade Union. As such the Defendants cannot be forced against their wish to join any trade union. I so hold.
Even if the defendants are desirous to join any affiliated Trade Union which deals with Transportation business, the Defendants being self employed, by the provisions contained in Part A & B of the Trade Unions (Amendment) Act 2005 and section 12 (4) of the same Act, the 1st Claimant’s jurisdictional scope is only limited to workers engaged in transportation of passengers and goods by road excluding transportation by road or transportation undertaken by self employed persons.
Therefore, the defendants being self employed cannot fit into the union of the 1st Claimant, and I so hold.
In all, I found no merit in this suit and as such the matter is hereby dismissed. Parties are to bear their respective costs.
Judgment is hereby entered accordingly.
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HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
YENAGOA DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
