THE REGISTERED TRUSTEES OF AKESLAU DRIVERS ASSOCIATION -VS- NATIONAL 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: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 3^rdday of March, 2020 SUIT NO: NICN/PHC/17/2019

BETWEEN:

THE REGISTERED TRUSTEES OF AKELSLAU DRIVERS

ASSOCIATION PORT HARCOURT

ENGR. ABAZU ONYEDIKACHI ELVIS———————- CLAIMANTS

AND

NATIONAL UNION OF ROAD TRANSPORT WORKERS (NURTW)

PORT HARCOURT BRANCH

EJEKWU IHIEJIRIKA IBE
OGUN CHARLES

(DPO ELELENWO POLICE STATION)

COMMISSIONER OF POLICE

RIVERS STATE POLICE COMMAND———————— DEFENDANTS

Representations:

C. Wombu for the Claimants.

M.O. Nwabali for the Defendants.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 30^th of January, 2019 along with an affidavit in verification of complaint, statement of fact, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

The Claimants are by the Complaint and statement of fact claiming against the Defendants as follows:

A DECLARATION that the AKELSLAU DRIVERS ASSOCIATION PORT HARCOURT is a Lawful Association of Tricycle (Keke) Drivers and have right to operate, use the road and identify themselves as same without being members of the National Union of Road Transport Worker (NURTW).
A Declaration that the AKELSLAU Drivers Association Port Harcourt as self-employed Tricycle Drivers has (sic) right to print stickers and ticket in its name and sell same to its members for purpose of identifying and promoting the general welfare of its member.
A Declaration that the Defendants does not have right to determine the status and direct the modus operandi of AKELSLAU Drivers Association Port Harcourt.
A Declaration that it is illegal and unlawful for the Defendants to arrest, detain, torture and charge the members of AKELSLAU Drivers Association Port Harcourt to court for not being members of National Union of Road Transport Workers or any other Association.
The sum of Ten Million Naira (N10,000,000.OO) Only representing general damages for loss of earning, trauma, torture, unlawful arrest and detention of the Claimant Members by the Defendants
A perpetual Order of this Honourable Court restraining the Defendants, its agents or privies from arresting, detaining, torturing, persecuting and prosecuting member of AKELSLAU Drivers Association Port Harcourt for purpose of compelling them to belong to or join National Union of Road Transport Workers (NURTW) or any other Association.

In reaction to the claims, the 1^st and 2^nd Defendants entered appearance on the 13^th of March 2019 and filed statement of defence on the same date. The said statement of defence was accompanied by list of documents, list of witnesses, witness statement on oath and copies of the documents to be relied upon.

The 3^rd and4^thDefendants made no formal appearance nor filed any process in defence of this suit.

Trial commenced on the 7^th of October, 2019 with the Claimants opening their case by calling one witnesses in person of Engr. Abazu Elvis as CW1 and he adopted his witness statement on oath which was marked as C1. Through the said CW1, 3 documents were tendered and admitted in evidence as C2 – C4.

Arising from the statement of fact and witness statements on oath, the case of the Claimants is that the 3^rd and 4^th Defendants are used by the 1^st and 2^nd Defendants to declare the 1^st Claimant, its meetings and activities as illegal, unlawful and conduct likely to cause breach of peace solely because they are not members of National Union of Road Transport Workers (NURTW). They added that the problem started sometime in February 2018 when the 2^nd Defendant began to parade himself as the Chairman of Joint Union Forum, an Association that was not known among Tricycle (Keke) Drivers in Port Harcourt or Elelenwo, Akpajo and Slaughter Routes where the 2^nd Defendant was extorting money from Tricycle (Keke) Drivers. They averred further that whenever the Drivers are arrested they are usually bailed between five and ten thousand naira including impoundment and detention of their tricycles for the whole day as punishment for refusing to comply with the directive of Ibe Ejekwu and the Police officers and same led the 2^nd Claimant to lead the Association to complain directly to the DPO Elelenwo Police Station, the 3^rd Defendant. The 2^nd Claimant was however told that the Tricycle Drivers should liaise with Ibe Ejekwu, the 2^nd Defendant and “his men” as “they are the owners of the road”. The Claimants added that upon meeting with the 2^nd Defendant, he was told that the 3^rd Defendant D.P.O directed that the Drivers should remit the sum of N 20,000.00 weekly to his office.He added that the said sum was too much for the drivers to bears but they eventually gave in for peace to reign. The Claimants averred further that before the end of March, 2018, the 2^nd Defendant and police officers increased the usual daily ticket of N 200.00 to N 600.00 and further introduced Obio/Akpor Revenue and Board of Internal Revenue which was never part of any revenue known to the drivers and the drivers refused it while the refusal led to another harassment and detention of Drivers and their tricycles by the 2^nd and 3^rd Defendant. The Claimants averred that in June, 2018, the Tricycle Drivers formed an Association to protect its common interest on the road, printed stickers and distributed same to its members who also stamped same on their tricycles but this led the 2^nd and 3^rd Defendant to launch an assault on the Claimants’ members and their association as the 2^nd and 3^rd Defendants continued to harass, intimidate, extort, detain drivers for being members of AKELSLAU Driver’s Association and insisting that the Claimants had no right to form such association in the face of the existence of the 1^st Defendant. Claimants averred that they were also told to denounce their membership of the Association and belong to National Union of Road Transport Workers (NURTW) before they can ply the routes.

Upon cross examination, CW1 stated that he started 1^st Claimant association in 2018 and before that, he was driving the tricycle while he belonged to a co-operative society. He admitted that after registering the trustees in 2018, he operated and sold tickets to members for their welfare. He refuted the fact that the Governor gave a directive not to cross Elelenwo bridge at slaughter and his association did not stage any protest while admitting that what brought his association together with the NURTW is the harassment that started in 2018. He also admitted that one of their members is standing trial at Magistrates Court. He also insisted that he cannot buy the ticket of NURTW since he is not a member. CW1 admitted that there is another case with similar reliefs pending at the High Court while he does not have any personal claim against the NURTW.

Claimants closed their case upon the discharge of CW1 while the 1^st and 2^nd Defendants opened theirs by calling one witness in person of Ejekwu Ihiejirika Ibe who as DW1 adopted his witness statement on oath marked as D1. Through the said DW1, 1 document was tendered and admitted under protest as Exhibit D2.

Upon a consideration of the statement of defence and statement on oath, I find that same were made in response to a certain originating summons which is not before the court. That notwithstanding, what can be deduced from the said processes is that the 1^st and 2^nd Defendants deny the allegations of the Claimants by stating that sometimes in February 2018, the State Governor directed that tricycles (keke) should not cross the bridge to slaughter and they eventually complied but the 2^nd Claimant approached the 2^nd Defendant and suggested they protest upon which the 2^nd Claimant made himself a self-acclaimed leader. It was also averred that the Claimants protested against an increase in the price of tickets as introduced by the LGA and Commissioner for transport. They added that before the 1^st Claimant was registered, there were three associations which were issuing tickets and they were arrested by the State Council of NURTW. Upon the arrest, the associations got affiliated with NURTW state Chapter and obtained authority in the name of Autonomous Federated Keke Branch, Elelenwo. They averred that upon the 2^nd Claimant registering their association and issuing and selling tickets, the same State Council of NURTW accused them of usurping their functions while the police did not declare their association illegal but merely advised them to get affiliated to a trade union if they want to operate in the level they desire.

Upon cross examination, DW1 stated that his business is in the supplies of chippings and sand and not a keke driver nor a bus driver, nor a tipper driver. He stated that he does not know that the 1^st Claimant is an association of keke drivers and also does not know that the 2^nd Claimant is a keke driver. DW1 posited that he did not know the claimants until they fought his boys, tore his boy’s cloth and made away with his money. He added that he has a problem with the claimants operating on the road as they have no authority to sell tickets to other keke riders and NURTW members in Elelenwo. In narrating how he became the NURTW Chairman, DW1 stated that the Commissioner of Transport called them to his office and asked them to join the NURTW as that is the only body licenced to collect tickets but the 2^nd Claimant said he needs commission which was refused andso the Autonomous Keke drivers joined the NURTW but Elvis (2^nd Claimant) refused to join. DW1 stated that he does not know if there is any law that says an association must be affiliated with a trade union

Upon the discharge of DW1, case was adjourned for the adoption of final written address and the 1^st and 2^nd Defendants filed their final written address on the 27^th of November, 2019 and arising therefrom, counsel to the 1^st and 2^nd Defendant,M.O. Nwabali Esq. formulated a sole issue for determination to wit:

Whether the claimant can be parallel union operating side by side and performing same duties without being a registered trade union?

In arguing the sole issue, counsel submitted that the 1^st Claimant is an association registered under the Company and Allied Matter Act and as such, activities performed by the association which is contrary to the activities of a registered trade union is regarded as illegal.

Counsel cited section 45 of the Trade Union Act to contend that the registration of an association under the Company and Allied Matters Act does not apply to a registered trade union but rather it declares their activities as void as it relates to a registered trade union.

He added that the Claimants’ intention is to setup a parallel union to compete for members of the 1^st Defendant in order to unionize and organize them. Counsel cited section 2 (3) and 3(2) of the Trade Unions Act to submit that the Defendant cannot exist side by side with the Claimants or perform the same duties with the Claimants or interfere with the duties and the functions of the Claimants as a trade union.

Counsel further argued that the members of the 1^st Defendant union has a duty as a citizen of the Federal Republic of Nigeria to report to a law enforcement agency on suspicion of commission of a crime and to do so in good faith. He cited the case of OSIL VS BALOGUN (2012) 38 WRN.

Counsel also argued that the claim of the Claimants that they are self-employed persons carrying on business of transportation of goods and services by road, is actually false, as there exist a registered trade union known and called TRICYCLE OWNERS ASSOCIATION OF NIGERIA (TOAN), which gained their registration as a trade union under the lacuna created by the provisions of Article 16 Part A of the 3rd schedule of the Trade Union’s Act Cap T14 Laws of the Federation (LFN) 2004.

Counsel contended that this suit is an abuse of court process as the Claimants’ witness admitted under cross examination as to the fact that he instituted another suit against the same parties in the High Court of Rivers State seeking the same reliefs as he seeks before this Honourable Court. Counsel cited the case of AGWASIM VS OJICHIE (2004) 18 NSCQR Pages 359 to 361 Ratio 2 and in conclusion urged the court to dismiss the case of the Claimants as it lacks in merit and award cost of One million Naira (#1,000,000.00) against the Claimants.

Reacting to the final written address of the 1^st and 2^nd Defendants, the Claimants filed their final written address on the 2^nd of December, 2019 and arising therefrom, counsel to the Claimant, N. C. Wombu Esq. formulated two issues for determination to wit:

Whether the Claimants have successfully established their case and are entitled to the reliefs contained in their particulars of claim.
Whether the Defendants have established any defence against the Claimants’ case.

In arguing issue one, counsel contended that the Claimants’ case is that they are incorporated Trustees under the laws of Federation of Nigeria and its members are self-employed tricycle drivers in Port Harcourt while its objective is for protection and seeking the general welfare of its member to raise funds from its members to promote its activities which is recognized by law.

He added that the 2^nd Defendant (DW1) merely justified his action that the Claimants were advised to affiliate with a trade union which they refused, but refused to show this court any particular or particulars of any Association which he is a member that was affiliated to NURTW (a trade union) upon which he has become a member of a trade union by affiliation to disturb the activities of the Claimants.

Counsel argued further that it is obvious that all the complain of the Claimants as contained in the statement of facts are real and had never been denied by the Defendants especially the 3^rd and 4^th Defendants who were duly served with the processes of this honorable court but never denied the facts or challenged the evidence of the Claimants in this suit. He cited section 123 of the Evidence Act to contend that facts admitted need no proof.

In arguing issue two, counsel contended that by section 1 of the Trade Union Act, the primary purpose of forming a trade union is the regulation of the terms and conditions of work of the of its members. He added that by the provision of Article 16, Part A of the 3^rd Schedule to the Trade Union Act, the Claimants are not within the meaning of trade union as they are self-employed within the exception of the persons to be registered as trade union and therefore cannot be compelled to join a trade union.

Counsel also argued that the 1^st Defendant did not show the activities of the Claimants that bring them in parallel with a trade union or any law that permits a trade union to affiliate transportation undertaken by self-employed persons into a trade union and that makes Exhibit D2 null and void.

Counsel also relied on section 40 of the Constitution of Federal Republic of Nigeria 1999 to contend that it is not in doubt that the Claimants are self-employed tricycle drivers with freedom of association for the purpose of protecting its members, projecting the welfare of the members and promoting their welfare.

He added that there is nothing placed before this court to restrict the activities of the Claimants while the court is duty bound to uphold their constitutional right.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for the determination of this suit is to wit:

Whether or not in view of the facts and evidence before this court, the Claimant is entitled to the reliefs sought.

Before I address the said issue, I find it apposite to address the status of the exhibit D2 which was admitted under protest in the course of trial.

With regards to the said document, counsel to the Claimant objected to the admissibility of same on the ground that the document listed as No.2 says ‘Autonomous Federated Keke Branch Elelenwo’ but the document tendered is a letter from NURTW and does not have any relationship with the document sought to be tendered.

Counsel to the Defendant responded that the Defendant was given a letter by NURTW as affiliates and the said letter was pleaded in paragraph 8(5) (of the statement of defence).

In view of the foregoing, I have taken a look at the said exhibit D2 and find that the said document is indeed a letter written by NURTW and addressed to the 2^nd Defendant. The letter which is dated the 12^th of December, 2017 duly informed the 2^nd Defendant that the NURTW Rivers State Council has created autonomous federated keke branch covering the entire Elelenwo as an affiliate of the State council.

I have also taken a look at the list of documents and paragraph 8(4) of the statement of defence and find rightly so that the document tendered as Exhibit D2 is what was pleaded and intended to be tendered. The said paragraph 8(4) narrated how three associations got affiliated with NURTW and was issued with a letter of authority in the name of Autonomous Federated Keke Branch Elelenwo.

Consequent upon the foregoing finding, the objection of counsel to the Claimant with regards to the admissibility of the said exhibit D2 is misplaced and same is accordingly overruled. Consequently, the said exhibit D2 is admitted in evidence.

I also find it apposite to address the contention of counsel to the 1^st and 2^nd Defendant that the suit before this court is an abuse of court process on the ground that the Claimants have instituted similar suit before the High Court of Rivers State. Counsel referred to the testimony of CW1 during cross examination where he admitted that there is a case pending at the High court and that the reliefs sought are the same. Counsel to the 1^st and 2^nd Defendant at the point of adopting final address also filed a copy of the judgment of the court in the suit filed at the High Court.

Counsel to the Claimants did not address the contention in his final address but in the course of adoption of final written addresses, posited that the suit at the High Court is not on the same subject matter but for the interpretation of the powers of the Police.

Consequent upon the foregoing contention, I reckon rightly so that an abuse of court process arises where there are multiplicity of action between the same parties and on the same subject matter for the same reliefs. The court in the case ofIDRIS & ANOR v. AGUMAGU & ORS(2015) LPELR-24504(CA) posited with regards to abuse of court process that:

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation…This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues…. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se…” Per OGBUINYA, J.C.A. (Pp. 40-42, paras. F-C).

While the foregoing is the meaning of abuse of court process, the Court in TONY-ANTHONY HOLDINGS LIMITED & ANOR v. COMMERCIAL BANK FOR AFRICA(2013) LPELR-20286(CA)posited on the effect of finding that a suit is an abuse of court process when it held that:

“The issue of abuse of court process is also an issue of jurisdiction (and) it is settled that once a court is satisfied that any proceeding before it is an abuse of court process, it is empowered and it behoves on it to dismiss such a proceeding”. [Per Omoleye, JCA]

The effect of the foregoing is that the contention of counsel to the 1^st and 2^nd Defendant touches on the jurisdiction of this court and same makes it imperative for this court to determine same at this stage in order to determine whether or not to proceed with the issue formulated for the determination of this suit.

In order to make a finding of whether this suit is an abuse of court process, I have taken into account the copy of the judgment of the High Court filed by counsel to the 1^st and 2^nd Defendant while also bearing in mind the admission of CW1.

Arising from the copy of the said judgment, I find that the suit at the High Court was instituted by and against the same parties before this court but same was by way of Originating summons seeking for the interpretation of certain questions including whether the police has power to arrest persons for belonging to the AKELSAU Drivers Association or the power to compel the members of AKELSAU to join the NURTW.

Although the facts in support and opposition of the originating summons are not generally before this court, it is deducible from the judgment that the facts in the said case are similar to what is before this court though the reliefs sought and the issues formulated in both suits are different.

More importantly, at the time the issue of abuse of court process was raised by counsel to the 1^st and 2^nd Defendant in his final written address, the suit at the High Court had come to a conclusion and the Honorable Judge who presided over the said suit had dismissed the suit for want of jurisdiction.

The Court in the penultimate paragraph of the judgment stated thus:

“The entire suit is centered on the activities of persons/unions involved in Road Transport business. Section 254(c)(1) of the Constitution of the FRN 1999(as amended)otherwise known as the Third Alteration has given exclusive jurisdiction to the National Industrial Court in matters relating to or connected with any labour employment, trade union, industrial relations and matters arising from work place, the condition of services, including worker and matters incidental therefore or connected therewith. To this end, it is obvious that this court lacks jurisdiction to entertain this suit.”

In view of the foregoing, it is apparent that the High court in the said suit declined jurisdiction to entertain the said suit which means that the only suit left is the one before this Court and there is no gainsaying as this court had earlier held in the ruling deliveredon the 15^th of July 2019 that this court is possessed of jurisdiction to entertain this suit.

Upon a consideration of the circumstances of this suit vis-à-vis the status of the suit initially filed at the High Court, in the interest of justice, this court finds it apposite to overrule the contention that this suit is an abuse of court process and finds thereon that this court is adequately clothed with jurisdiction to entertain same based on the provisions of section 254(C) (1) CFRN 1999 (as amended).

Having said that, I turn to the sole issue for determination which touches on the reliefs sought by the Claimants. Four of the reliefs sought by the Claimants are declaratory and consequently places a burden on the Claimants to establish by Cogent and convincing evidence that they are entitled to the said declarations notwithstanding the weakness of the case of the Defendants.

In this regard, the court in DIAMOND BANK PLC. V. YAHAYA & ANOR.(2011) LPELR-4036(CA) held that:

“The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187.” Per ONYEMENAM J.C.A. (P. 27, paras. B-D).

In similar terms, the court in P.D.P v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 546 – 547 Paras. D – A (CA)held that:

“In civil cases, before a court can grant a declaratory relief sought by a plaintiff he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will in no way relieve the plaintiff from the onus placed on him of proving his claim. The plaintiff has the bounding duty to satisfy the court by evidence, and not through admission in the pleading of the defendant, that he is entitled to the declaration sought. The court has a discretion to grant a declaration or refuse same. The outcome will depend on how cogent and strong the claimants case is. In other words, courts do not make a declaration of right on admissions. See Bello v. Eweka (1981) SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254; Mortune v. Balonwu (2000) 5 NWLR (Pt. 655) 87; Nkwocha v. Ofurum (2002) 5 NWLR (Pt. 761) 506; Igbinovia v. U.B.T.H. (2000) 8 NWLR (Pt. 667) 53; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Kupoluyi v. Phillips (2001) 13 NWLR (Pt. 731) 736.” Per. Adekeye JCA.

It is upon the foregoing that the declaration sought by the Claimant are to be considered accordingly. The first three declarations sought by the Claimants are predicated on some of the facts averred by the Claimants and the highlight of which is that the 1^stClaimant is a registered association under Part C of the Companies and Allied Matters Act to cater the welfare of the members who are self-employed tricycle drivers and the said registration of the association became necessary upon the harassment, intimidation and extortion meted out on the said tricycle drivers by police officers as orchestrated by the 1^st and 2^nd Defendant. The Claimants also alleged that their association also have stickers and tickets which is sold to their members but the Defendants will have none of it, rather the 2^nd and 3^rd Defendants insisted that the tricycle drivers have no right to form an association and that the drivers must denounce their membership and join the 1^st Defendant Union before they can ply the routes.

The Claimants tendered exhibits C2 as the certificate of Incorporation of the Trustees of their association along with the Constitution of same tendered as Exhibit C3 while Exhibit C4 is the letter of introduction of the association to the Divisional Police Officer, Elelenwo.

The foregoing exhibits only goes as far as establishing that an association was registered with the Corporate affairs commission and the strength of the Claimants’ case with regards to other allegation therefore rests on the oral testimony before the court.

While the defendant has denied the allegations stated by the Claimants, the 1^st and 2^nd Defendant posited that it is the State Council of the NURTW that is accusing the Claimants’ association of usurping the power of the NURTW which is a trade union.

The only piece of evidence which the Defendant placed before the court is Exhibit D2 which is a letter addressed to the 2^nd Defendant by the 1^st by which the 2^nd Defendant and other persons were given authority to act.

The foregoing indicates clearly that there is dearth of evidence for the general determination of the instant suit. However, I must quickly add that the matter which the parties presented before this court deals more with law than evidence. This is so for the fact that the law regulates clearly the establishment and practice of trade unionism in Nigeria just as there is a law on the establishment of associations. So also, there is a primus law that that overrides all other laws which is the Constitution of the Federal Republic of Nigeria 1999 (as amended) which regulates the rights of every citizen of this country.

In the light of the foregoing and in the interest of justice and attainment of peace between the parties before the court, I find it apposite to consider the declaratory reliefs sought by the Claimants within ambit of the law in other to ascertain the rights of each party towards one another.

The first declaratory relief is for “A DECLARATION that the AKELSLAU DRIVERS ASSOCIATION PORT HARCOURT is a Lawful Association of Tricycle (Keke) Drivers and have right to operate, use the road and identify themselves as same without being members of the National Union of Road Transport Worker (NURTW)”.

To determine the said relief, I have stated that Exhibit C2, C3 and C4 establishes and proves the fact that the Claimants registered an association with the Corporate affairs commission and that is to the satisfaction of this court. Hence, the first limb of the relief is grantable without hesitation.

The second limb however requires a proper evaluation which is to the effect that the Claimant being an association has the right to form such association by virtue of section 40 of the Constitution of Federal Republic of Nigeria, 1999 (as amended). The said section for the sake of clarity states thus:

“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”.

The foregoing provision clearly shows that a citizen can choose to belong to a trade union, political party or association of his or her choiceand same right has been upheld in a plethora of cases including that of Chukwuma V. C.O.P. (2005) 8 NWLR (Pt. 927) 278 at 287 (CA) where the court held that:

“It is constitutionally provided that every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political, trade union or any other association for the protection of his interests, see section 40 of the 1999 Constitution” Per. Abdullahi JCA.

It must however be said that the association of persons must be within the framework of other laws as section 45 of the Constitution reckons with circumstances where there can be derogation from certain rights guaranteed under the Constitution including right to freedom of association. The court in the same case of Chukwuma V. C.O.P. (2005) (supra) added in this regard that:

“However, it is to be observed that the rights provided supra are not without limitations, hence section 45(1) of the said Constitution provides thus:- 45(1) Nothing in sections 37, 38, 39, 40 and 41 of this 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; or (b) for the purpose of protecting the rights and freedom of other persons.” Per. Abdullahi JCA.

Bearing the above limitation in mind, this court finds that the association of the Claimants have not exceeded the limits of the law in belonging to an association and the exhibits before the court shows manifestly that the association is a lawful one.

I must add that the Claimants by the declarations want their members to enjoy their right to carry on their business of driving their tricycles and be identified as members of their association without being compelled to join the NURTW.

In the light of this claim, I must foremost state that the law regulating an association is different from that regulating a trade union and while a trade union comprises either workers or employers and is established for the purpose of regulating the terms and condition of employment of workers, the registration of an association is usually to promote welfare of members and to give the trustees legal status other than that of a union. I must also posit that the law establishing a trade union does not compel membership of such trade union. As a matter of fact, members of trade union have the right to opt in and opt out of a trade union. This was the clear position of the law as stated in section 12(4) of the Trade Union (Amendment) Act which provides that:

“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.”

In view of the foregoing provision, it is preposterous for any person or group of persons to attempt to compel any person or group of persons to join a trade union which he does not want to join.

I am not oblivious of the argument of counsel to the Defendant that the activities of the Claimants’ association which are contrary to the activities of a trade union is illegal because the association is registered under the Companies and Allied Matters Act. With regards to the said argument, I must state that Exhibit C2 does not support the assertion that what was registered with the Corporate Affairs Commission is a Union, rather it is the trustees of an association with aims and objectives which includes the promotion of welfare amongst members. In addition, the Defendants have not stated what activities the Claimants are performing that are made exclusive to trade union by the Trade union Act such as collection of check off dues or embarking on strike etc.

It must also be said that, I have taken into account the submission of counsel to the Claimant to the effect that the member of the Claimants’ association are self-employed drivers and consequently exempted from being registered as members of trade union. counsel referred to Article 16, Part A of third schedule to the Trade Union Act.

Upon a careful perusal of the said provision, I findthat the said Article 16 merely names the 1^st Defendant as one of the Workers Union affiliated to the Central Labour Organization. Going further, I find that Part B provides a description of the trade unions and with respect to the 1^st Defendant, it was described as:

“All workers engaged in transportation of passengersand goods by road, excluding the transportation of petroleum by road and transportation undertaken by self employed persons.”

In view of the said description which has been made by the law, the members of the Claimants association having not been employed by anyone nor working for anyone are indeed excluded from registration as members of NURTW.

Consequent upon the foregoing, this court is satisfied that the Claimants are entitled to relief one as sought and same is accordingly granted.

Relief two is for “a Declaration that the AKELSLAU Drivers Association Port Harcourt as self-employed Tricycle Drivers has (sic) right to print stickers and ticket in its name and sell same to its members for purpose of identifying and promoting the general welfare of its member.”

In consideration of the said relief, I reckon the testimony of CW1 who stated that the Claimants’ association printed stickers and tickets to sell to their members but that the 2^nd and 3^rd Defendants harassed and detained their members upon doing so. While the Claimants did not present any evidence of harassment or arrest, I must posit that I reckon the testimony of DW1 who stated that he has a problem with the Claimants’ association as they are not authorized to sell tickets on the road.

Upon the consideration of the foregoing state of affairs, I must state clearly that members of an association are bound by the constitution of an association and an association has the right to direct their affairs as they so please as long as it is within the ambit of the law. Therefore, if tickets are printed by the association and the members are willing and able to buy same, the Defendants have no business in stopping the Claimants from printing and selling same to their members. This is more so as the Defendants have not presented any law that is violated by the Claimants with regards to the printing and selling of the stickers and tickets.

The court in MBANEFO v. MOLOKWU & ORS (2014) LPELR-22257(SC) held that:

“This must be said loudly and clearly, unless it has violated its own Constitutional provisions the court would not interfere. The court will not substitute its own will for that of a political party or any other voluntary association. Those who join clubs, or associations or political parties must be made aware of the perils of membership. The majority will must prevail whether it is reasonable or unreasonable.” Per PETER-ODILI, J.S.C. (Pp. 32-33, paras. C-C).

In the light of the foregoing authority and upon the consideration of section 40 of the Constitution of Federal Republic of Nigeria 1999 (as amended) which allows the establishments of association for the purpose of the protection of members’ interests, I must state that it is the duty of the State government to register and regulate all the operations of various associations within the state. in the absence of any such regulation placed before the court stating that it is only the NURTW that is permitted to sell tickets on the road, the Claimants have the right to print and sell stickers and tickets that bear the name of its association and since they are not members of the NURTW, they cannot be compelled to buy the tickets of the NURTW.

Consequent upon the foregoing, the Claimants are entitled to relief 2 and same is accordingly granted as prayed.

With regards to relief 3 which is for “A Declaration that the Defendants does not have right to determine the status and direct the modus operandi of AKELSLAU Drivers Association Port Harcourt”, I have earlier stated that an association is clearly distinct from a trade union and since the association of the Claimants is exempted from registration as trade union, the NURTW which is a trade union for the purpose of regulating the terms and condition of employment of workers in the transportation sector which it has jurisdictional scope over, with the exclusion of the Claimants, is not in position to regulate or direct the affairs and mode of operation of the Claimants.

Consequent upon the foregoing, and the general consideration of the grant of reliefs 1 and 2, the Claimants are found to be entitled to relief 3 and same is accordingly granted as prayed.

Relief 4 is for“a Declaration that it is illegal and unlawful for the Defendants to arrest, detain, torture and charge the members of AKELSLAU Drivers Association Port Harcourt to court for not being members of National Union of Road Transport Workers or any other Association”

The said relief unlike the first three declarations are not solely dependent on law, rather it is dependent on the finding of facts alleged. The Claimants by the said relief 4 wants the court to declare the act of the Defendant in harassing, detaining, torturing and prosecuting its members but failed to present any piece of evidence in relation to any of the alleged acts.

In this regard while it is needless to prove law, it is settled and trite that he who asserts facts must prove same. See FASUBA v. ADUMASI & ANOR (2015) LPELR-24548(CA).

In the instant case, the Claimant has failed to provide concrete, cogent and convincing evidence in proof of either harassment, detention, torture, or prosecution of anyone and the failure to so prove is fatal to the claim for a declaration that the act is illegal or unlawful.

Consequently, relief 4 fails for dearth of proof and same is accordingly refused.

Relief 5 is dependent on the success or failure of relief 4 as same is a claim for “the sum of Ten Million Naira (N10,000,000.00) Only representing general damages for loss of earning, trauma, torture, unlawful arrest and detention of the Claimant Members by the Defendants”.

While I reckon that the said claim is in general damages, it must be said that general damages are granted upon proof of the alleged act for which a complaint is laid before the court. Although general damages itself need no specific pleading and the sum claimed need not be strictly proved, the basis upon which same will be granted must be convincingly established. See EFCC v. INUWA & ANOR(2014) LPELR-23597(CA).

In the instant case, the Claimants have failed to establish by concrete and convincing evidence that there was harassment or detention or torture of any person whatsoever. Consequently, the claim for general damages for same fails and same is accordingly refused.

Relief 6 is for“a perpetual Order of this Honourable Court restraining the Defendants, its agents or privies from arresting, detaining, torturing, persecuting and prosecuting member of AKELSLAU Drivers Association Port Harcourt for purpose of compelling them to belong to or join National Union of Road Transport Workers (NURTW) or any other Association.”

The foregoing claim is considered in the light of the declaration made by this court that the Claimants have the right to form an association of their choice and the members of same are free to join the said association without any form of oppression or intimidation or interference from the Defendants so long as the activities of the Claimants are within the ambit of the law. This court also holds firmly that no person is to be compelled to join any association or trade union as the membership of such association or trade union must be voluntary. This right is subject to other provisions of the law such as enactments by the State or simply regulations on who can form a toll gate on the road and collect money from the road users, otherwise, the society will turn chaotic when everyone begins to sell tickets on the road.

Consequent upon the position of the law and the grant of reliefs 1 to 3, this court is inclined to restrain the Defendants from compelling the Claimants’ members to join the NURTW or any other trade union or association which they do not wish to join. The said relief 6 is consequently granted as prayed.

In the final analysis, the sole issue for determination is largely resolved in favourof the Claimants and the case of the Claimants is found to be meritorious in the extent to which the reliefs 1,2,3 and 6 have been granted while same lacks merit in the extent to which reliefs 4 and 5 have failed and have been refused.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.