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National Industrial Court

UNION OF TIPPER AND QUARRY EMPLOYERS OF NIGERIA. & 9 Ors –

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA

ON THE 27TH DAY OF JUNE, 2019

 

SUIT NO: NICN/MKD/04/2019

BETWEEN:

  1. UNION OF TIPPER AND QUARRY

EMPLOYERS OF NIGERIA.

  1. FIDELIS AHURAZA
  2. JINGALI EMMNUEL
  3.  ORYINA AKER                                                  CLAIMANTS
  4. JOHN BUTER
  5. HON. AKAAJIME IDYOROUGH
  6. TERKIMBI TAMEN
  7. TERNA KWAGH
  8. IORNUMBER EMMANUEL
  9. FELICIA TSEGBA

AND

  1. INCORPORATED TRUSTEES OF TIPPER

DRIVERS’ ASSOCIATION MAKURDI

  1. VERSHIMA ASOR ELIJAH                                      DEFENDANTS
  2. GBADEN AKIGHIR
  3. CHRISTOPHER ALANYI

REPRESENTATION:

Parties present

Kelvin Iorzenda Esq. with T.A. Usue and G.I. Akponko Esq. for the Claimants

E.O. Agena Esq. with Vershima Akaangee Esq. and J.E. Eyam Esq. for the Defendants.

JUDGMENT

By an originating summons filed on the 29th January 2019, the Claimants seek the determination of the following questions;

 

“(1)    Whether or not upon a calm and dispassionate interpretation of section 1 of the Trade Unions Act 2004, Rules 4(vii) and 3(1) of the Constitution of the Union of Tipper and Quarry Employers of Nigeria 2013, and by the nature of business and operations of the Defendants, the 1st Defendant is a Trade Union that must be registered under the Trade Unions Act and not the Corporate Affairs Commission before operating as such. 

 

(2)      Whether or not, upon a calm and dispassionate interpretation of section 2 of the Trade Unions Act 2004, and by the nature of business and operations of the Defendants, the Defendants can validly form another parallel association (Registered Trustees of Tipper Drivers Association) and purport to secede from the Union Of Tipper and Quarry Employers of Nigeria which is duly registered under the Trade Unions Act.

 

(3)      Whether or not, upon a calm and dispassionate interpretation of the Trade Unions Act 2004 and other extant laws, the Corporate Affairs Commission is the proper and lawful body with which the Defendants should be lawfully registered for the purpose of carrying out trade union activities among its members”.

Claimants seek the following reliefs upon resolution of the above questions;

 

  1.  A declaration that the 1st Claimant having been duly registered under the Trade Unions Act is the only recognized union or body by the relevant laws to regulate and promote the general quarry business but not limited to digging, dredging, gathering, sales, supply, loading, transportation and offloading items such as gravel, sharp sand, laterite and allied products, and the operations of all kinds of Tippers and lorries (and their drivers and owners) used in the transportation of the above mentioned items and materials at the quarry sites to the desired destinations of end users. 

                  

  1.  A declaration that the 1st Defendant, her officers and members by virtue of the nature of their work, business and operations were and are members of Union Of Tipper and Quarry Employers of Nigeria and therefore bound by the provisions of its Constitution in accordance with Rule 4 (vii) of the said Constitution and in accordance with sections 1 and 2 of the Trade Unions Act except any of them decides to disengage from quarry business or allied work. 

                      

  1.  A declaration that the formation and purported registration of the 1st Defendant under part C of CAMA with the Corporate Affairs Commission for the purpose of operating as a trade union is improper, illegal, null and void.

                            

  1.  A declaration that the said certificate of registration with the Corporate Affairs Commission (CAC) cannot be used for the purpose of operating in the quarry industry or for transacting the business of gathering, sales, supply, loading, transportation and offloading of items such as gravel, sharp sand, laterite and allied products, or the operation of all kinds of Tippers and Lorries by their drivers and owners for the transportation of the above mentioned items and materials at the quarry sites to the desired destinations of end users as it is done by the Defendants. 

 

  1.  An order of court nullifying and voiding the Certificate of Incorporation of the 1st Defendant registered under Part C of CAMA as same is improper as it is being used for the purpose of transacting illegal quarry business contrary to section 2 of the Trade Union Act. 

 

  1.  A declaration that the operations of the Defendants under the umbrella of Incorporated Trustees of Tipper Drivers Association Makurdi, without being registered in accordance with the Trade Unions Act is a gross violation of section 2 of the Act and such actions and operations are therefore an invitation to and capable of causing the breakdown of peace in the society, a breach of law and order and so illegal and improper and condemnable. 

                                

  1.  An order of the Honourable Court directing the Defendants jointly and severally to withdraw and cease all illegal operations in the name of Incorporated Trustees of Tipper Drivers Association Makurdi as there cannot be a Trade Union within an already existing trade union registered and recognised by law. 

                              

  1. An order of perpetual injunction by the Honourable Court restraining all the Defendants or any person claiming to be acting for or in the name or umbrella of Incorporated Trustees of Tipper Drivers Association Makurdi or in whatever name or guise, from transacting any quarry business or operations relating to the  dredging, digging, gathering, sales, supply, loading, transportation and offloading of items such as gravel, sharp sand, laterite and allied products, or the operation of all kinds of Tippers and Lorries by their drivers and owners for the transportation of the above mentioned items and materials at the quarry sites to the desired destinations of end users. 

                         

  1.  An order of the Honourable Court restraining all the Defendants jointly and severally from holding themselves out and parading themselves as a parallel union/association dealing in quarry business and allied materials either as drivers, loaders or suppliers, and from collecting dues, bookings or any other payments from any person under the umbrella of Incorporated Trustees of Tipper Drivers Association Makurdi.

 

  1.  The sum of N10, 000, 000.00 (Ten Million Naira) only, in favour of the Claimants as punitive and general damages.

                       

  1. The cost of this action.

In support of the originating summons thereof, is a 46 paragraph affidavit deposed to by the 2nd claimant, Fidelis O. Ahuraza on behalf of himself and nine other Claimants and the following Exhibits were also attached to the said affidavit. Exhibit UTQ1 (Certificate of Registration of the 1st Claimant), exhibit UTQ2 (Federal Republic of Nigeria Official Gazette No.3 of 17th January 2013),  exhibit UTQ3 (Constitution of the 1st Claimant), Exhibit UTQ4 (Solicitor’s letter from Messrs. F.T. Anongo & Co. dated 28th Feb. 2018),  exhibit UTQ5 (Solicitor’s letter from S.A. Nguekwagh & Co. dated 13th March 2018), exhibit UTQ6 (Cash receipts of the 1st Defendant), exhibit UTQ7 (Formal complaint against the Defendants to the Department of State Security Services dated 25th June 2018), exhibit UTQ8 (Memorandum of Understanding dated 26th June 2018), exhibit UTQ9 (Petition to the Commissioner of Police, Benue State dated 6th December 2018), exhibit UTQ10 (Letter to Commissioner of Police dated 31st December 2018), exhibit UTQ11 (First Information Report), and exhibit UTQ12 (Letter of Complaint to the Commissioner of Police Benue state dated 5th January 2019).

Claimants’ counsel also filed a written address to accompany the originating summons.

In response to the originating summons, the Defendants filed a 42 paragraph counter- affidavit deposed to by the 2nd Defendant (Vershima Asor Elijah) and the following Exhibits were also attached to the counter affidavit. Exhibit TD1 (Certificate of Incorporation of the 1st Defendant), exhibit TD2A (Admission Form of the 2nd Defendant), exhibit TD2B (Admission Form of the 3rd Defendant), exhibit TD2C (Admission Form of the 4th Defendant), exhibit TD2D (Letter of Admission of the 2nd Defendant), exhibit TD2E (Letter of Admission of the 3rd Defendant), exhibit TD2F (Letter of Admission of the 4th Defendant), exhibit TD3 (Solicitor’s letter from F.T. Anongo & Associates dated 28th February 2018), exhibit TD4 (Police Invitation addressed to the 2nd Defendant & members), exhibit TD5 (First Information Report) and exhibit TD6 (Minutes of general meeting of the Tipper Drivers Association dated 1st July 2018).

A written address was also filed by the defendants’ counsel. Defendants’ processes were deemed properly filed and served on 1st April 2019 via a motion dated and filed on 29th March 2019.

The Claimants thereafter filed a 22 paragraph further affidavit deposed to by one Emmanuel Jingali (3rd Claimant) in reply to the Defendants’ counter- affidavit on 27th March 2019 with a written address and exhibit UTQ-FA13 (Letter to the State Comptroller of Labour dated 22nd January 2019), exhibit UTQ-FA14 (Letter to the Secretary, Union of Tippers & Quarry Employers of Nigeria dated 25th January 2019), exhibit UTQ-FA15 (Invitation letter to the Union of Tipper & Quarry Employers of Nigeria, Benue state Chapter dated 11th October 2018) and exhibit UTQ-FA16 (Constitution of the Incorporated Trustees of Tippers Drivers Association Makurdi) were attached to the further affidavit.

Both parties through their respective counsel adopted their respective processes on 1st April 2019.

The gist of the Claimants’ case is that the 1st Claimant is a union registered under the Trade Unions Act and it covers the affairs of the Defendants hence the Defendants cannot register a parallel body with similar/same duties under the Companies and Allied Matters Act. In support of their assertion, the Claimants in their written address raised three issues for determination to wit;

“1        Whether or not upon a calm and dispassionate interpretation of section 1 of the Trade Unions Act 2004, Rules 4(vii) and 3(1) of the Constitution of the Union of Tipper and Quarry Employers of Nigeria 2013, and by the nature of business and operations of the Defendants, the 1st Defendant is a Trade Union that must be registered under the Trade Unions Act and not the Corporate Affairs Commission before operating as such. 

 

  1.  Whether or not, upon a calm and dispassionate interpretation of section 2 of the Trade Unions Act 2004, and by the nature of business and operations of the Defendants, the Defendants can validly form another parallel association (Registered Trustees of Tipper Drivers Association) and purport to secede from the Union Of Tipper and Quarry Employers of Nigeria which is duly registered under the Trade Unions Act.

 

  1. Whether or not, upon a calm and dispassionate interpretation of the Trade Unions Act 2004 and other extant laws, the Corporate Affairs Commission is the proper and lawful body with which the Defendant should be lawfully registered for the purpose of carrying out trade union activities among its members.”

On Issue 1, the Claimants’ counsel urged the court to answer the question in the affirmative because by the provisions of section 1 of the Trade Unions Act 2004, Rule 4 (vii) and Rule 3(1) of the Constitution of Tipper and Quarry Employers of Nigeria coupled with the nature of business and operations of the Defendants, the 1st Defendant is a trade union that must be registered under the Trade Unions Act and not Corporate Affairs Commission.

Counsel cited section 1 of the Trade Unions Act and Rule 4 (vii) and Rule 3(1) of the Constitution of the 1st claimant. (Exhibit UTQ 3).

Claimants’ counsel submits that by the above provisions, the fundamental aims of the 1st Defendant and that of the 1st Claimant are one and same and therefore, the Defendants cannot opt out by forming a parallel union christened the “Incorporated Trustees of Tipper Drivers Association Makurdi” (1st Defendant).

Claimants argued that the 1st Defendant is a trade union and can only be registered under the Trade Unions Act with the Ministry of Labour before it can operate as such.

Counsel submits on behalf of the Claimants that the Defendants have gone ahead to print stickers in the name of the 1st Defendant and booking receipts which they give to members, they collect dues, bookings and other payments and seek to protect interest of their members and are also engaged in general quarry business and operations like the Claimants. The Defendants also engage in digging, dredging, gathering, sales, supply, loading, transportation and offloading of items such as gravel, sharp sand, laterite, and allied products and operate all kinds of tippers and Lorries just like the Claimants thus the Defendants are a trade union which can only be registered under the Trade Unions Act and not the Corporate Affairs Commission.

Counsel submits that by virtue of rule 4(vii) of exhibit UTQ3 cited above, all classes of tippers/trucks and quarries throughout the Federation shall compulsorily be registered members of the 1st Claimant with the exception of government or public utilities/establishments. Thus the Defendants as tipper drivers must be registered with the 1st Claimant whose membership is open to all employers in the industry including owners of quarries and tippers/trucks as well as their drivers who operate within and around the quarry sites.

Counsel submits further that the purported registration of the 1st defendant with the Corporate Affairs Commission for the same purposes and objectives as the 1st Claimant and acting as a trade union is improper, illegal, null and void and the said certificate issued by the Corporate Affairs Commission be set aside.

On issue 2 raised above, Counsel to the Claimants urged the court to answer the question in the negative and hold that by the definition and meaning of section 1 of the Trade Unions Act, the Defendants are active traders in the quarry industry thus the Defendants cannot form a parallel union or association with the same objectives and manner of operation when there is already one in existence which was duly registered under the Act, officially gazetted and recognized by the Federal Ministry of Labour.

Counsel submits that section 2 of the Trade Unions Act and the constitution of the 1st Claimant prohibit the formation of a parallel union or association having same manner of operations, same receipts, same aims and objectives and operating at the same place as the 1st Claimant and fighting, harassing, assaulting, opposing and violently antagonizing lawful officials of the 1st Claimant.

Counsel submits that if the Defendants are allowed to operate as such, there is bound to be perpetual clash/conflict of interest which is not supposed to be.

On issue 3, counsel also urged the court to answer the question in the negative and hold that upon a calm and dispassionate interpretation of the Trade Unions Act 2004 and other extant laws, the Corporate Affairs Commission is not the proper and lawful body to register the 1st Defendant for the purpose of carrying out trade union activities among its members. And it is only the Ministry of Labour and Employment that is the proper and legal body with which a trade union/association such as the Defendants can be registered and the right law is the Trade Unions Act and not the Companies and Allied Matters Act (CAMA).

Counsel submits that by the above provision no trade union/association is allowed to operate as such as being done by the Defendants unless such a union or association has been duly registered under the Trade Unions Act. Counsel contends that it is clear from the actions of the Defendants that they are and have been doing several acts and performing many acts in furtherance of the purposes for which the 1st Defendant has been formed without registering same under the Trade unions Act or recognized by the Ministry of Labour and Employment. Therefore, the printing of receipts in the name of the 1st Defendant, collecting dues, levies, subscriptions and other financial levies  from drivers are illegal acts prohibited by the Trade Unions Act, and that the certificate of incorporation issued by the Corporate Affairs Commission does not give requisite legal backing to the Defendants to function or operate as a trade union.

Counsel submits that the proviso to section 2 of the Trade Unions Act which talks about taking steps in doing things incidental to the registration of a union does not avail the defendants. Though the Defendants claim to be registered, they are not duly registered as a trade union under the Trade Unions Act as they are merely registered as Incorporated Trustees of Tipper Drivers Association, Makurdi under part C of CAMA thus cannot operate on the basis of such registration.

Counsel submits that it is trite law that where a statute (in this case section 2 of the Trade Unions Act) provides a method for doing a thing, only that procedure or process must be followed, counsel cited the cases of Adeyela V. Adeyeye & Ors. (2010) LPELR 3618 (CA) 49-50, Tanko V. The State (2009) 14 WRN 1 at 12 and CCB (Nig.) Plc V. Attorney- General (Anambra State) (1992) 8 NWLR (pt.261) 528 in support of his submission.

The court was then urged to grant the reliefs sought by the Claimants as the action of the Defendants is premised on illegality of registering with the Corporate Affairs Commission and consequently acting as a trade union or association which cannot be allowed to stand. Counsel referred the court to the case of Abubakar & Ors. V. Nasamu & Ors. (2012) LPELR-7826 (SC).

Counsel urged the Honourable Court to answer all the above issues and questions in favour of the Claimants against the Defendants in the interest of justice for peace and sanity to return to quarry site and Tipper Park in Makurdi, Benue State.

In opposing the submissions of the Claimants, the Defendants via their counsel adopted the three issues raised by the Claimants and added a fourth one thus;

“Whether considering the evidence adduced before this Honourable Court and the provisions of the Constitution of Union of Tippers and Quarry Employers of Nigeria 2013, the members of the 1st Defendants are members of the 1st Claimant.” 

Counsel to the Defendants argues that issue 1 raised by the Claimants be answered in the negative because by virtue of section 1 of the Trade Unions Act 2004, the 1st Defendant is not a trade union that must be registered under the Trade Unions Act. Counsel reproduced sections 1 and 2 of the Trade Unions Act to contend that for an association or group to be classified as a trade union, it must be a combination of workers or employers who must come together for the purpose of regulating the terms and conditions of workers. Therefore, the Claimants must present evidence before the court to show that the 1st Defendant is made up of a combination of workers duly constituted for such purposes.

Counsel submits that the Claimants have woefully failed to discharge the burden placed on them as required in civil cases. Counsel referred the court to sections 131,132 and 133 (1) of the Evidence Act 2011 and the case of Bullet Int’l (Nig.) Ltd. V. Olaniyi (2017) 17 NWLR (pt.1594) 260 at 296 paragraphs E-F. That the Claimants have stated in paragraphs 5, 14, 16, 42 and 43 of their supporting affidavit that the 1st Defendant is a trade union  and it is trite law that in an originating summons, the affidavit in support and counter affidavit thereof constitute the pleadings of the parties. See the case of N.N.P.C. V. Famfa Oil Ltd. (2012) 17 NWLR (pt.1328) 148 at 189 paragraphs F. 

The Defendants’ counsel submits also that the Claimants have averred that the 1st Defendant is an illegal and parallel union formed within the 1st Claimant but the Claimants have failed to prove the assertion. Counsel cited the cases of Amadi V. Amadi (2017) 7 NWLR (pt.1563) 108, Imana V. Robinson (1979) 3-4 SC 1, Elemo V. Omolade (1968) NMLR 359, Atane V. Amu (1974) 10 SC 237, Fashanu V. Adekoya (1974) 6 SC 83 and Kate Enterprises Ltd. V. Daewoo (Nig.) Ltd. (1985) 2 NWLR (part.5) 116 in support thereof.

Counsel on behalf of the Defendants contends that there is nothing in the affidavit evidence of the Claimants to show that the Defendants are workers or employers of the Claimants. Thus the court can not speculate on these facts. Counsel referred the court to the cases of I.B.N. Ltd V. A.G Rivers State (2008) All FWLR (pt. 417) 1, Overseas Construction Co. (Nig.) Ltd. V. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (pty.13) 407, Bakare V. ACB Ltd. (1986) 5 SC 48 and Ezezie V. Anuwu (2008) All FWLR (part.422) 1005 at 1049.

Counsel submits that it is settled principle of law that a party seeking declaratory reliefs must succeed on the strength of his case alone and not on the weakness of the of the case of the Defendant and being declaratory reliefs, they are not granted even by admission of a Defendant. See the cases of Ogah Ikpeazu (2017) 17 NWLR (pt.1594) 299 at 336-337, Dumez (Nig.) Ltd, V. Mwakhoba (2008) 18 NWLR (pt.1119) 361 and Omisore V. Aregbesola (2015) 15 NWLR (part.14820) 205.

Counsel submits that even though Claimants relied heavily on Rules 4 (vii) and 3 (i) of the Constitution of the 1st Claimant in arguing that the fundamental aims of the 1st Defendant are the same with those of the 1st Claimant, the affidavit evidence did not state as such and thus submissions by counsel not supported by evidence should be discountenanced. The court is referred to the cases of Adegbite V. Amosu (2016) 15 NWLR (pt.1536) 405, Nitel Ltd. V. Okeke (2017) 9 NWLR (pt.1571) 439, Dike V. KA-Kay Construction Ltd. (2017) 14 NWLR (part.1584) 1.

 

Counsel submits further that the submission by the Claimants’ counsel that the printing of stickers, booking receipts and collection of dues by the Defendants from members makes the 1st Defendant a trade union is misconstrued and misconceived as the provisions of section 1 of the Trade Unions Act are clear and unambiguous hence no contrary interpretation can be introduced to circumvent its true intention no matter the explanation or ingenuity. Counsel referred the court to the cases of Skye Bank Plc. V. Iwu (2017) 16 NWLR (pt.1590) 24, A.G. Kwara State V. Adeyomo (2017) 1 NWLR (part. 1546) 210 and Setraco (Nig.) Ltd. V. Kpaji (2017) 5 NWLR (1558) 280.

Counsel submits that the Claimants made heavy weather on the Defendants taking part in quarry business alongside the Claimants thus making the Defendants a parallel or illegal union but quarry business is not a restricted business thus anyone interested in it can carry on with it even aliens. Therefore, the Defendants have every right to participate in the quarry industry as no law has placed restriction on it not even the Trade Unions Act.

On issue 2 and the 4th one raised by the Defendants, Counsel urged the court to answer the two issues in the negative as by the evidence led in this suit and the provisions of the constitution of the 1st Claimant as well as section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and the Trade Unions Act 2004, the 2nd- 4th Defendants are not bound by the provisions of the 1st Claimant’s Constitution.

Counsel to the Defendants submits that the conditions for membership are as stated in Rule 4 of exhibit UTQ3  (Constitution of Union of Tipper and Quarry employers 2013) and the Claimants can only prove membership of the Defendants by the production of applications made for membership, evidence of payment of registration fees, membership certificates and membership cards of the Defendants. Failure to do so is fatal to the case of the Claimants.

Counsel submits further that the question whether or not the Defendants can validly form a parallel association or union and purport to secede from the 1st Claimant does not arise as a parallel association or union can only be formed from an existing association by members of the already existing union.

Counsel contends also that Rule 2 (iii) of exhibit UTQ3 is binding on members only and Defendants cannot be held to be members of the 1st Claimant to be so bound and that there is nothing preventing the Defendants from forming or operating an association or trade union of their choice as enshrined under section 40 of the Constitution of the Federal Republic of Nigeria 1999, which is to the effect that every citizen of Nigeria has the right to join or form any association or union of his choice. Thus any provision of the Constitution of the 1st Claimant which is contrary to the Constitution of the Federal Republic of Nigeria is null and void and of no effect whatsoever.

On issue 3, Counsel to the Defendants urged the court to decline the jurisdiction to answer the question as to whether or not the Corporate Affairs Commission is the proper and lawful body with which the Defendant should be lawfully registered for the purpose of carrying out trade union activities among its members, as the Claimants lack the locus standi to seek the determination of this question before the court. Counsel contends that it is only the registrar of trade unions or the Minister of Labour and Employment that has the requisite locus to challenge the registration of the 1st Defendant under the Corporate Affairs Commission. Counsel referred the court to the cases of Wushishi V. Imam (2017) 18 NWLR (pt. 1579) 175 and A.G. Federation V. A.G. Lagos State (2017) 8 NWLR (part. 1566) 20.

Counsel argued further that there is no evidence anywhere in the supporting affidavit to show that any of the Claimants is a Registrar of trade union or Minister of Labour or Attorney- General of the Federation or that they were authorized to challenge the competence of the 1st Defendant’s registration because a party can only have a locus standi where he has a stake in the subject matter or outcome of the case. See B.B. Apugo & sons Ltd, V. O.H.M.B. (2016) 13 NWLR (pt.1529) 206, Okwu V. Umeh (2016) 4 NWLR (pt. 1501) 120 and Ige V. Farinde (1994) 7 NWLR (part.354) 42.

Counsel submits that assuming without conceding, that the court holds that the Claimants have locus standi, issue 3 should still be answered in the negative as it is only when the Claimants have proved by cogent evidence that the 1st Defendant is a trade union in line with the intendment of section 1 of the Trade Unions Act 2004 that the validity of registration of the 1st Defendant with the Corporate Affairs Commission can be questioned. Counsel urged the court to dismiss the entire suit for lacking in merit.

The Claimants in their reply address to the submissions of the Defendants argue that the nature of operations and business of the Defendants show that they are a combination of workers and the aims and objectives enshrined in exhibit UTQFA16 (Constitution of 1st Defendant) expressly prove that they are a trade union. Also by exhibit UTQ4 (Defendant’s Solicitor’s letter dated 28th February 2018), the Defendants admitted being members of the 1st Claimant and admitted seceding from membership of the 1st Claimant to form their own association. Thus admitted facts require no further proof. See the cases of Aweto V. Federal Republic of Nigeria (2018) LPELR- 43901 (SC) and United Bank for Africa V. Alhaji Babangida Jargaba (2007) 31 NSCQR 144.

Counsel submits that even though the Defendants are free under section 40 of the Constitution of the Federal Republic of Nigeria 1999 to belong to or form any association or union, such must be done properly and under relevant laws as in this case the Trade Unions Act which has stipulated the mode for such registration. Thus where there is no statute regulating unions or associations, there will be disorderliness and chaos in the society thus section 2 of the Trade Unions Act is not in conflict with section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).

Counsel further submits that a person has locus standi if he has shown sufficient interest in the action and his civil rights and obligations have been or are in danger of being infringed as held in the case of A.G. Adamawa State & Ors. V. A.G. Federation (2005)1 NWLR (pt.958) 581. 

Claimants’ counsel contends that the Claimants have shown sufficient interest in the action that their rights and obligations have been and are in danger of being infringed upon as the Defendants under the cloak of registration with the Corporate Affairs Commission have been collecting dues and levies, harassing claimants, blocking roads to tipper parks, making the environment hostile e.t.c. Counsel urged the court to answer the questions in favour of the Claimants.

COURT’S DECISION .

I have carefully considered the processes filed by the parties and the submissions of counsel to both parties and I think that the issue of whether the claimants are entitled to the reliefs claimed can conveniently resolve all the issues raised by the parties.

In determining this, let me refer to section 1 of the Trade Unions Act which provides as follows ;

“Section 1(1) In this Act -“trade union” means any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and weather its purposes do or do not include the provision of benefits for its members.”

See also the case of Oju V Dopamu(2002) LPELR – 12325(CA) Where in applying the above definition to the Academic Staff Union of Universities, (ASU), the court held that it is very clear that the body qualifies as a trade Union.

Trade Unions are special because they are usually formed to collectively negotiate either on behalf of employers or employees, as the case may be, about work-related matters or issues, such as salaries, emoluments, benefits and work conditions. See The Registered Association of Tippers and Quarry Owners of Nig. V Yusuf (2011) LPELR – 5024(CA).

                      

Let me also refer to the claimants’ question No.1 so raised which states as follows:

 

“Whether or not upon a calm and dispassionate interpretation of section 1 of the Trade Unions Act 2004, Rules 4(vii) and 3(1) of the Constitution of the Union of Tipper and Quarry Employers of Nigeria 2013, and by the nature of business and operations of the Defendants, the 1st Defendant is a Trade Union that must be registered under the Trade Unions Act and not the Corporate Affairs Commission before operating as such.”

                        

It is evident by virtue of Exhibit UTQ1 that the 1st claimant is a trade Union registered under the Trade Unions Act. And by rule 3 (i) of the constitution of the 1st Claimant, its principal objectives is to among others regulate and promote the business undertakings of members engaged in the digging, dredging, sales, supply and the commercial undertakings of any kind in such items as gravels, sand, laterite and allied products, but not excluding the selling, buying and supply of all kinds of tippers/lorries used in transportation of these items at quarry sites.

Rule 4 (vii) of the said Constitution also provides that “All classes of tipper/trucks and quarries throughout the Federation shall compulsorily be registered members of this union with the exception of government or public utilities/establishments.” 

In the Registered Association of Tippers and Quarry Owners of Nig. V Yusuf (supra), the court of Appeal while addressing chapter 3(¡¡) of the appellants’ constitution which is in pari-materia with Rule 4 (vii) above said that “The foregoing provisions in the appellants’ constitution which compulsorily or mandatorily require” All classes of Tippers and Quarry Owners throughout the Federation of Nigeria” to be members of the appellants’ association are clearly contrary to section 40 of the constitution of the Federal Republic of Nigeria and, therefore void.”

The court also referred to section 1(3) of the constitution of the Federal Republic of Nigeria, 1999 to say that any law that is inconsistent with the constitution is void to the extent of that inconsistency.

It is instructive to point out that, in the case of the Registered Association of Tippers and Quarry Owners of Nig. V Yusuf (supra), the plaintiffs/appellants were registered under part C of CAMA but the court of appeal still opined that even if the appellants were a Trade Union, they would not have the right to insert that clause in their constitution.

However, this is not to say that the right under section 40 of the 1999 constitution is not a qualified right. The fundamental right to freedom of association to form or join a trade union enshrined under section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) is not absolute as the same Constitution has under section 46 made provision for a derogation from the fundamental right on grounds of public safety, public order, public morality or health, interest of defence or to protect the rights and freedom of other persons. In the case of Osawe & Ors. V. The Registrar of Trade Unions (1985) 1 NWLR (pt.4) 775 at 756, the Supreme Court held that “the right to freedom of association guaranteed under section 37 (now section 40) of the Constitution like the other rights in Chapter IV of the constitution is not an absolute right but a qualified right that can be derogated from in accordance with provisions of section 41 (now section 45) of the of the Constitution.

Arising from the above, I am not inclined towards granting a declaration that the 1st claimant has the exclusive preserve to regulate and promote the general quarry business. I am not also making a declaration that the Defendants and or all Classes of tippers/trucks and quarries throughout the Federation shall compulsorily be registered members of the 1st claimant. Reliefs No.1 and 2 are therefore refused.

Claimants’ question No.2 which is reproduced states as follows :

“Whether or not, upon a calm and dispassionate interpretation of section 2 of the Trade Unions Act 2004, and by the nature of business and operations of the Defendants, the Defendants can validly form another parallel association (Registered Trustees of Tipper Drivers Association) and purport to secede from the Union Of Tipper and Quarry Employers of Nigeria which is duly registered under the Trade Unions Act.”

Section 591(1) of CAMA provides that the aims and objectives of an association to be registered under part C “must be for the advancement of any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose and must be lawful.”

In satisfaction of the requirement of part C of CAMA, Article 6 of the 1st defendant’s constitution states the aims and objectives of the Association’s constitution as follows:

“a)      Promotion and fostering of unity among members. 

  1. b)Regulation and control of the activities of members. 
  2. c)To ensure and maintain safety of members and welfare of members and the general public in the course of its activities. 
  3. d)To improve the quality and progress of life of people within the Association by rendering financial assistance to members. 
  4. e)Create awareness on the reckless driving among the drivers. 
  5. f)Advancement of social development and welfare of members. 
  6. g)Protection of the interest of members. 
  7. h) To do all such other lawful things as may be considered to be incidental or conducive to the attainment of the above aims and objectives of this Association.”

 

Going by this, and from the affidavit evidence before me, it has not been established by the Claimants that the 1st defendant is a Trade Union or it has by its operations constituted itself to be a Trade Union. The claimants have made series of allegations of blockade, threats, assault and violent harassment of innocent citizens, intimidation and attempts to attack members of the 1st Claimant by the Defendants but there has not been any evidence to substantiate the allegations. These allegations can only be proved by oral evidence and not affidavit evidence.

I am of the firm belief that the aspect of the Defendants being engaged in illegal activities or operating their business illegally will be handled by the relevant regulatory government agencies that are legally empowered to handle such cases.

In the light of the forgoing, question No.2 raised by the Claimants is resolved against the Claimants.

Moving on to  question No.3, it says thus:

“Whether or not, upon a calm and dispassionate interpretation of the Trade Unions Act 2004 and other extant laws, the Corporate Affairs Commission is the proper and lawful body with which the Defendant should be lawfully registered for the purpose of carrying out trade union activities among its members.”

Let me quickly state that as a matter of fair hearing that since the Corporate Affairs Commission has been mentioned and it is not joined as a party, then it will be contrary to the laid down principle of fair hearing to proceed against it and declare its action void without hearing from it.

On this score, relief 3 and 5 are refused.

However, I will not hesitate to state that the fact that the 1st defendant registered as Incorporated Trustees under part C of  CAMA does not make it a Trade Union or that the status or privileges of a Trade Union are conferred on it. The 1st defendant is still a trustee and cannot act as a trade Union. I must at this juncture draw a distinction between a trade union and a trustee. A trade union is a voluntary association formed for the purpose of protecting common interest of its members, promote members’ welfare, and protect members’ economic, political and social interest. On the other hand a trustee is a person or individual so appointed on behalf of an organization or body and who obtains legal personality. A trustee does not do business and does not distribute profits as it is a non- profit association whose main objective is to ensure that an organization or association is solvent, well managed and delivering charitable outcomes for which it is set up. See Section 603 of the Companies and Allied Matters Act.

On the whole, the claimants’ case fails for lack of sufficient evidence to prove that the Defendants are operating or carrying out their activities as Trade Union but this is without prejudice to the criminal cases filed against the Defendants for an allegation of any offence at the appropriate courts.

Judgment is entered accordingly. I make no order as to cost.

  ___________________________________

HON. JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)

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