IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

 

DATE: May 19, 2021                                                  SUIT NO. NICN/LA/262/2016

BETWEEN                                

  1. IKEJA ELECTRICITY DISTRIBUTION PLC                         CLAIMANTS/
  2.  NEW ELECTRICITY DISTRIBUTION LTD                                 APPLICANTS             

AND

  1. INCORPORATED TRUSTEES OF CITIZEN

 ACCESS TO ELECTRITY INITIATIVES

  1. COMRADE ABDULSALAM ALIU FASHOLA                    DEFENDANTS/

For himself and as NATIONAL co-ordinator of citizens  Access to              RESPONDENTS

Electricity initiatives

  1. SEGUN ESAN

For himself and as General Secretary of Nigerian union of  Nigerian

Union of Railway Workers.

  1. NIGERIAN LABOUR CONGRESS

 

REPRESENTATION:

Inam Wilson, with Akinyemi Akiniyi  for the claimants.

Chukwuyem Atewe for the1st to 3rd defendants.

Adewunmi Adebayo, with W.J Roberts for the 4th defendant.

JUDGMENT

Introduction and claims

[1] The claimants filed this complaint against the defendants on 20th April 2016 seeking the following reliefs:

(a)       A Declaration that the defendants did not comply with the procedure for embarking on a strike, picketing or industrial action prescribed under the Trade Dispute Act and Trade Union (Amendment) Act and accordingly had no right to embark on a strike, picket, lock-up or in any other manner howsoever described occupy or restrict and/or prevent access to the claimant’s offices at Obafemi Awolowo Way, Alausa, Ikeja Lagos and other business units in Lagos as they purported to do on 18th April, 2016 and their action are accordingly illegal, null and void.

(b)      A Declaration that the defendants have no right to (i) enter upon 1st claimant’s offices at Obafemi Awolowo Way, Alausa Ikeja, Lagos and other business units and/or the 2nd claimant’s offices, without the claimants’ consent, or (ii) obstruct and/or prevent the claimants’ staff and employees from carrying out their lawful duties.

(c)       A Declaration that the defendants’ picketing of the 1st claimant’s offices at Obafemi Awolowo Way, Alausa Ikeja, Lagos and other business units and consequent disruption of the claimants’ businesses when there was no trade dispute or dispute of right with the claimants amount to trespass on the 1st claimant’s premises and a wrongful interference with the contact of employment between the claimants and their employees.

(d)      An Order of Perpetual Injunction restraining the defendants, by themselves or through their agents, privies, affiliate or associates, or through any other person(s), association(s) or entity(ies) however described, from wrongfully picketing the claimants’ business premises, offices and /or business units or in in any way whatsoever disrupting the claimants business operation.

(e)       An Order of Perpetual Injunction restraining the defendants, by themselves or through their agents, privies, affiliate or associates, or through any other person(s), association(s) or entity(ies) howsoever described, from obstructing/preventing the claimants’ employees from performing their contract of employment with the claimants.

(f)       The sum of N20,000,000 (Twenty Million Naira) daily from 18th April, 2016 until date of abatement of picketing as general damages from the defendants’ trespass on claimants’ offices and/or business units.

(g)       The sum of N150,000,000 (one Hundred and Fifty Million Naira) as reasonable estimate of specific damages for the losses suffered by the claimants as a result of the defendants’ interference with the contract of employment between the claimants and their employees.

(h)      Cost of this action on a full indemnity basis (including but not limited to the claimants’ counsel’s legal fees).

Accompanying the complaint is the statement of facts, witness deposition, copies of documents, a motion ex parte, affidavit of urgency, and a motion on notice. The motion ex parte seeking interim restraining injunctive reliefs was heard on the 21st April 2016 and granted.

The 1st, 2nd and 3rd defendants filed their statement of defence, accompanying processes and a Notice of Preliminary Objection on July 12, 2016. The 4th defendant filed its statement of defence together with the accompanying processes and a motion on June 15, 2016.

Case of the claimants

[2] The case of the claimants on the pleadings is that the 1st claimant engaged in the business of electricity distribution in Ikeja and its environment; and the 2nd claimant during the privatization of the 1st claimant by the Federal Government of Nigeria (FGN) bought the FGN’s 60% (sixty percent) interest in the 1st claimant. The claimants stated that the 1st claimant is considered Essential Services under the Trade Disputes (Essential Services) Act and its employees do not belong to a trade union. The claimants stated that on 18 April, 2016, persons purporting to be members of the Citizen Access of Electricity Initiative (CATEIN) a non-Governmental Organization, which is also not a registered trade union under the leadership and prompting of the 2nd and 3rd defendant and members of the 4th defendant unlawfully picketed the business premises of the 1st claimant and disrupted its operations causing it business losses. The claimants stated that the defendants in furtherance of their picketing of the 1st claimant’s offices and business units have threatened to escalate their actions to the 1st claimant’s investors’ offices including the 2nd claimant who is the majority investor.

[3] The claimants stated that the 2nd defendant is the national co-ordinator of CATEIN, the 3rd defendant is the General Secretary of Nigeria Union of Railway Workers, a registered trade union and an affiliate of the 4th |defendant. The claimants stated that the 3rd defendant was one of those who actively participated in the picketing of the 1st claimant’s office on 18 April, 2016. The claimants stated that the 4th defendant is a registered and recognized trade union under the Trade Union Act whose main objective is to represent the interest of its members or members of its affiliated union. The claimants averred that no union exists and operates in the 1st claimant and that its staff are not members of the 4th defendant or its affiliated unions. The claimants stated that the 1st defendant is active on the social media platform Facebook and that on April 16, 2016 it put up a publication captioned “PRESS RELEASE” on its Facebook page and accused the 1st claimant among other things of anti-labour policies and announcing that “this body has decided to start our campaign against IKEDC on Monday 18/04/2016” and called out all Nigerians to join the mass action/ movement to occupy IKEDC.

[4] The claimant’s stated that the 1st and 2nd defendant organized a massive picketing of the 1st claimant’s primary business offices at Obafemi Awolowo Road, Alausa Ikeja as well as its various business units and locations including but not limited to -: Ayangburen Undertaking Ijede, Ogba undertaking, Oba Akran, Ojodu, Ipaja Gowon Estate, Abule Egba Business unit Ikotun, Oke Afa, Igando, Oshodi Business unit office, Shomolu Business unit office, Igbobi undertaking. The claimants stated that the 3rd defendant participated in the picketing as well as the 4th defendant whose members were seen waving the 4th defendant’s flags and other emblems in support of the picketing. The claimants stated that the defendants members on 18 April, 2016 at the start of business gathered in large crowds in front of the 1st claimant’s office and its various business units, carrying banners and placards and effectively blocking off ingress and egress to these premises.

[5] The claimants stated that at the entrance to the 1st claimant’s Obafemi Awolowo office the defendants put up a banner across the gate that had the 1st defendant’s name and the words “Catein In Colloboration With Civil Society Group” and “Protest In Action” and a number of labour related assertions in bullet points. That the defendants, their members and supporters stood guard at the entrance to the premises and the various business units of the 1st claimant, waiving their banners, placards and other emblems and chanting solidarity choruses and parked a bus bearing their banner right in front of the entrance to the 1st claimant’s offices to ensure no vehicles are able to go in or exit the premises. The claimant’s stated that the defendants refused to allow employees and customers of the 1st claimant access to transact business and threatened to use coercive force against any person that attempted to do so; and resumed the activities described on 19 April 2016 threatening to continue with their actions for many weeks to come.

[6] The claimants stated that the defendants purported to picket the 1st claimant’s offices and business units when there was no trade dispute or dispute of right and most importantly the allegations made by the defendants which allegedly informed their action did not relate to the terms and conditions of employment of their members. The claimants further stated that the Trade Union (Amendment) Act and the Trade Disputes Act (“TDA”) sets out the procedure to be followed before any strike, picketing or industrial action can be taken by any person, employer, employee or trade union; and the procedure was not followed by the defendants before they embarked on picketing of the 1st claimant’s offices and disruption of the claimant’s business operations. The claimants stated that the defendants’ action amounts to an unlawful trespass to the offices and business units of the 1st claimant. The claimants stated that the defendants did not come to the 1st claimant’s offices by invitation or in furtherance of or contemplation of a trade dispute; and they never had any prior contact with the 1st and 2nd defendants until they showed up on 18 April 2016.

[7] The claimants stated that the defendants prevented their employees and customers from gaining entry to the offices and business units and refused to leave in spite of its repeated demands. The claimants stated that the defendants’ action amounts to wrongful interference in the employment contract with its employees as the defendants clearly intended and ensured that majority of their employees were not able to perform their duties their customers were unable to transact business. The claimants averred that the defendants who are not a trade union and with whom they have no employment relationship were not acting within any legally cognizable right when they picketed their premises and business units. They stated that the intention and actions of the defendants occasioned financial losses to them in terms of man-hours and revenue from their employees and customers respectively; and that a summary of the 1st claimant’s turnover in the months of January, February and March is:

 

Month

January

February

March

Post Paid

5,697,834,318

6,717,624,850

6,004,264,162

PPM/AMI

470,065,499

462,852,031

506,471,967

Total (postpaid & prepaid)

6,167,899,817

7,180,476,881

6,510,736,129

No. of days in a month

                31

             29

            31

Amount lost in a day

198,964,510

247,602,651

210,023,746

 

[8] The claimants’ witness is the Head of Legal in the 2nd claimant Emmanuel Gbahabo (CW). He adopted his statement on oath. It was in terms of the pleadings and he relied on the claimants admitted documents. Under cross-examination, CW confirmed that he was aware of the existence of the 4th defendant (NLC) and what it does. He told the court that he was not aware of any correspondence or engagement between the claimants and the 4th defendant prior to the day of picketing or on the day it happened. CW stated that the publication was downloaded from the face book page of the 1st to 3rd defendants and did not emanate from the website of the 4th defendant. CW said he was not aware the 4th defendant was made up of affiliate unions and that he does not know any of the officers of the 4th defendant protesting. CW told the court he saw flags of the 4th defendant being carried during the protest and for this reason he believes that the 4th defendant was part of the protest and therefore joined it in this action.

[9] CW told the court that he knows a trade union is different from a pressure group or an NGO. He said the 1st defendant came to protest labour policies of the claimants. CW informed the court that he knows the 3rd defendant is the General Secretary of the union of railway workers, and stated that he did not know him to be an elected officer of the 4th defendant. He confirmed that he did not see the 3rd defendant carrying the flag of the railway workers union. CW told the court the protest started on the 18th April through the week but he could not recollect precisely when it ended. He said the claimants could not carry on business on the day of the protest. CW said he did not know whether the defendants were his customers or had meters, neither did he have a database of the customers. He said he had no records that the defendants complained as customers using the available channels for complaints and that he did not provide the responses to customer complaints because he did not consider it relevant. He told the court that there is a platform provided by the Nigeria Electricity Regulation Commission for resolution of disputes. CW said they lost N150 Million during the week of the protest and admitted that they do not give their customers notices when they are unable to provide electricity. The case of the claimants was then closed.

Case of the 1st, 2nd, 3rd defendants

[10] The case of the 1st, 2nd, and 3rd defendants (hereinafter referred to as the defendants) on the pleadings is that the 1st defendant is a non-governmental organization duly registered and with objectives to organize a platform for Electricity consumers and support them in terms of needs and demands. The defendants stated that their objectives are also to provide better service to consumers and to interface with stakeholders and serve as a link between Government and investors in policy formation affecting the masses. The 1st – 3rd defendants averred that the 1st defendant has been inundated with complaints from various communities in Lagos State that the claimants who are their Electricity provider has been providing them with poor power supply services and astronomical monthly Electricity bills not commensurate with the poor services provided. The defendants stated that the 1st defendant wrote to the claimants intimating them of complaints received from its various Electricity consumers which required urgent attention by the claimants; and on the 15th February, 2016 the 1st defendant wrote a reminder referring to its letter of the 18th day of November, 2015 that complaints and the issues stated therein has not been resolved. 

[11] The defendants stated that there were complaints and press briefings on the on the poor services and outrageous estimated billing by Ikeja Electric (IE) to consumers in Ikeja, Akowonjo, Abule Egba and Ikotun business units made by the community development councils. They averred that on the 12th April, 2016 the 1st defendant gave a press release drawing the attention of the claimants to the poor services, estimated billing, non provision of prepaid meters and other sundry issues; and on 15th April, 2016 the 1st defendant again issued another press release drawing the attention of the claimants to the poor services to consumers, and other issues contained in the press of release of the 15th day of April, 2016 and called for mass action to register their protest for the failure of the claimants to come resolve their complaints. The defendants stated that upon the failure of the claimants to resolve the complaints, the consumers under the auspices of the 1st defendant staged a peaceful protest to register their grievances to the claimants; and the Nigeria Police were at the protest to ensure that there was security, peace and order in the course of the protest.

[12] The defendants averred that they are not a trade union and neither was the protest by organized labour, and therefore the protest does not fall under the provisions of the Trade Union Act or the Trade Disputes Act as there is no trade dispute with the claimants. They stated that not being a Trade Union, their peaceful protest to register their grievances cannot be likened to picketing by labour unions. The defendants averred that they did not interfere with the employment contracts of the claimants and its employees. They stated that from the turnover claims of the claimants, the poor electricity supply and other sundry issues complained of by consumers amounts to a rip-off by the claimants. The defendants averred that the court lacks the jurisdiction to entertain this suit.

[13] The 1st, 2nd & 3rd defendants witness is Abdulsalam Aliu Fashola (DW). He adopted his statement on oath. It was in terms of the pleadings and he relied on the admitted documents. DW told the court that 18th April 2016 was the day they visited the claimants’ premises to protest and he was present there. He said it was not possible for the protest to be held anywhere else. DW informed the court that the 1st defendant is not a trade union. He said it is a Non Governmental Organization (NGO), and a pressure group with its aims and objectives approved by the Corporate Affairs Commission. DW told the court that the objective of the 1st defendant is to interact with the public on how best to have cost effective electricity, have a forum to interact with policy makers on electricity and how best the public can have electricity and that this includes protest. DW said the role of the 1st defendant does not include fighting for the welfare of workers against their employers and that he does not know anything about picketing.

[14] DW informed the court that the 1st defendant has no relationship with the 4th defendant the NLC, and did not involve the NLC or invite the NLC to the protest, neither was any role assigned to the NLC. DW stated that the 4th defendant did not take part in the exercise. DW stated that prior to the protest on 18th April 2016, there was correspondence with the claimants in respect of their complaints on electricity services; and that their letters were acknowledged. DW confirmed that the 1st defendant published on its face book page before the protest and he identified the publication, the banner and the photographs taken during the protest. DW said the protest was at the claimant’s premises, was peaceful with no violence; and after the protest they left the claimants premises. The 1st, 2nd, 3rd defendants closed their case.

Case of the 4th defendant

[15] The case of the 4th defendant on the pleadings is that it was not involved in any of the activities leading to the institution of this action, and states that this suit discloses no reasonable cause of action against it. The 4th defendant states that the suit is frivolous and vexatious and as such ought to be dismissed as against the 4th defendant with substantial costs. The 4th defendant cross-examined CW and DW and did not call oral evidence. It elected to rest its case on the evidence adduced.

Final address

[16] The 1st, 2nd, 3rd defendants final address is dated 5th November 2019 and filed on 6th November 2019. The 4th defendant’s final address is dated 28th February 2020 and is filed on 2nd March 2020. The claimants’ final address is dated 29th January 2020 and is filed the same day. The defendant’s reply on point of law is dated 17th June 2020 and is filed on the 25th June 2020. The parties adopted their respective final addresses.

Learned counsel to the 1st, 2nd, 3rd defendants submitted the following issues for determination:

  1. Whether the case of the claimants as presently constituted can be subject of determination by the National Industrial Court as a case of first instance?

 

  1. Whether the acts of the 1st – 3rd defendants is not borne out of contractual relationship between the parties.

 

  1. Whether from the pleadings and the evidence led the claimants have made out a case to be entitled to the reliefs sought in this suit.

[17] On issue 1, learned counsel stated that the reliefs sought by the claimants is built on the provisions of the Trade Dispute Act (TDA). He referred to section 48 of the TDA and section 54 of the National Industrial Court Act 2006 for the definition of a trade dispute and submitted that a trade dispute relates to employers and employees, workers and workers and or their respective organizations and the dispute must be connected with the employment or non employment of any person, terms of employment, physical condition of work. It was learned counsel’s submission that in the absence of a trade dispute or a dispute of rights between the parties the court can not determine the case as a trade dispute as the parties are not properly constituted. Learned counsel further submitted that assuming without conceding that there exists a trade dispute, the claimants did not comply with the procedure laid down in section 1 (1) and (2) of the TDA; and therefore the court lacks the jurisdiction to adjudicate on this suit as a court of first instance citing National Union of Hotels and Personal Services Workers v National Union of Food Beverage and Tobacco employees (2004) NLLR (Pt 2) 286, National Union of Mine Workers v Regal Mineral Industries Limited (2007) 7 NLLR (Pt 18) 272. Counsel submitted that the defendant’s cannot be validly sued before this court in claims unrelated to employment issues.  

[18] On issue 2, learned counsel submitted that the relationship between the parties is contractual and that each party has a right to express its displeasure or acceptance of services provided and monies paid; and that the protest was a consumer/customer expression of displeasure against poor power supply and estimated billings.  He submitted that the relationship between the parties is borne out of an implied contract distinguishable from a trade dispute or a dispute of rights and thus the claims of the claimants under the TDA must fail. He submitted that it is within the defendant’s collective social responsibility to protest and that Section 40 of the 1999 Constitution as amended gives the defendants the right to assemble freely and associate or form any association for the protection of their interest; and Section 39 of the Constitution that gives the defendants the right to hold opinions. On issue 3, learned counsel submitted that the claims of the claimants are at variance with their pleadings. He argued that while the main claim is rooted under the TDA, the pleadings reveal that there is no trade dispute and as such the main claim and the ancillary claims must fail. He submitted that there is no proof of monetary losses and/or special damages claimed and he urged the court to dismiss the suit with substantial cost against the claimants for in lacking merit.

 

[19] Learned counsel to the 4th defendant formulated two issues for determination as follows:

  1. Whether the 4th defendant is a proper party to this suit in view of all the material facts and evidence placed before the court that the 4th defendant was never part of any activities leading to the cause of action in this suit?

 

  1. Whether going by the material evidence placed before the court, it can be said under any guise that this suit discloses any cause of action against the 4th defendant?

On issue 1, he submitted that the 4th defendant is neither a necessary nor proper party to this suit and that the evidence of CW is at variance with the claimants’ pleadings as it relates to the 4th defendant. It was his contention that from the evidence elicited during the cross-examination of CW and DW, the alleged involvement of the 4th defendant in the pleadings is a conjecture, a mere supposition and presumption not based on cogent, verifiable, or credible evidence and the pleading goes to no issue. He referred to Ihunwo v Ihunwo (2004) LPELR-12608 (CA), Eze v Okoloagu (2009) LPELR-3922, Ogbeide v Osula (2004) 12 NWLR (Pt 886) 86 on the probative value of evidence elicited under cross-examination. Learned counsel submitted that the claimants failed to lead credible evidence on the role or involvement of the 4th defendant other than the show of the NLC flag, and that the 4th defendant is not defined by its flag or logo. He further submitted that only the court has the power to make an inference or deduction from fact and a witness must give evidence of fact and not inference, speculation, or deduction citing Ali v Kano State (2018) LPELR-44201 (CA), MTN v Mundra Ventures (Nig) Ltd (2016) LPELR-40343 (CA) 77-78.

[20] Learned counsel submitted that the claimants simply joined the 4th defendant to clothe the court with jurisdiction and that aside from the wrongful joinder, the subject matter is a protest that is outside the jurisdiction of this court. He further submitted that where proper parties are not before the court, the court lacks jurisdiction to adjudicate citing CBN v Interstella Communications Ltd (2017) LPELR-43940 (SC), Bakare v Ajose-Adeogun (2014) LPELR-22013 (SC). He referred to Order 14 Rules 1 and 2 and urged the court to strike out the name of the 4th defendant. On issue 2, learned counsel submitted that the claimants have not disclosed a cause of action against the 4th defendant citing Ibrahim v Osim (1988) 1 NSCC Vol 19, 1184 at 1194, Amaechi v Gov of Rivers State (2017) LPELR-43065 (CA). He then urged the court to dismiss the suit against the 4th Defendant with substantial costs against the claimants.

[21] Learned counsel to the claimants submitted two issues for determination:

  1. Whether the defendants unlawfully picketed the offices of the 1st claimant and disrupted its business activities.

 

  1. Whether from the pleadings and evidence led at the hearing of this suit, the claimants have made out a case to entitle them to the monetary reliefs sought in this suit.

On issue 1, he submitted that the court had in a considered and decided the issue of jurisdiction, and immediately became functus officio and cannot sit on appeal over its own decision citing Olowu v Abolore (1993) LPELR 2603 SC. He further submitted that the 1st -3rd defendants’ arguments on the jurisdiction is unfounded the court having already decided that it has the requisite jurisdiction. Learned counsel submitted that the 1st defendant not being a Trade Union under the Trade Union Act (TUA) acted illegally in occupying and picketing the claimants’ business premises. He argued that assuming but not conceding that the 1st defendant is a trade union, it did not comply with the procedures prescribed under the Trade Disputes Act before an industrial action can be deemed valid referring to the provisions of Sections 4, 5, 6 and 18 of the TDA.

[22] Learned counsel submitted that picketing the claimants’ premises was illegal; and that the defendants’ have misconstrued the meaning of picketing. He referred to the definition of picketing in Black’s Law Dictionary (9th Edition) as “the demonstration by one or more persons outside a business or organization to protest the entity’s activities or policies and to pressure the entity to meet the protesters demand; esp., an employees’ demonstration aimed at publicizing a labour dispute and influencing the public to withhold business from the employer…” Learned counsel submitted that picketing and protest are the same and can be used interchangeably. He submitted that on the evidence adduced, the defendants picketed the claimants’ premises and the 4th defendant’s flag was displayed in the course of the exercise. It was his contention that there is a presumption that the 4th defendant is aware of the protest and sanctioned same as it failed to rebut the presumption. Learned counsel submitted that the defendants position that the protest was simply a consumer/customer expression of poor services is a misrepresentation of facts and an attempt to mislead the court. He submitted that the Electricity Power Sector Reform Act 2005 provides remedies and redress mechanisms for aggrieved customers through the Nigerian Electric Regulatory Commission (NERC) created under section 31 of the Act and empowered under sections 45 to 50 to conduct hearings after receiving complaints from customers.

[23] Learned counsel argued that the defendants resorted to self help rather than operate within the confines of the law citing Military Governor of Lagos State v Chief Ojukwu & Ors (1986) All NLR 233, Achebe v Mbanefo (2017) LPELR 41884 (CA). He submitted that the right under Section 40 of the CFRN is not absolute and must be exercised without infringing on rights of other persons citing FRN v Abacha (2014) LPELR 22355 CA. On issue 2, learned counsel submitted that the claimants are entitled to both special and general damages for the financial losses they suffered as a result of the unlawful picketing of its business premises referring to Badmus Adegunde (1999) 11 NWLR (Pt 627) 493 at 502H-503C. He submitted that the claimants are entitled to an order of perpetual injunction restraining the defendants or their privies and assigns from further picketing the offices of the claimants. He then urged the court to grant the claimants claims in its entirety.

[24] Replying on point of law, learned counsel to the 1st, 2nd, 3rd defendants referred to section 42 of the Trade Union Act as amended by the Trade Union (Amendment) Act, 2005 and submitted that an organization that is not a trade union is not subject to the Trade Union Act and the laid down procedures in the Trade Dispute Act.

Decision

[25] I have carefully considered the processes filed, the evidence led, written submissions, arguments and authorities cited. I begin with the fundamental issue of jurisdiction raised by the defendants. The 1st, 2nd and 3rd defendants had by a Notice of Preliminary Objection (NPO) filed on the 12th July 2016 challenged the jurisdiction of the court to entertain this complaint. In a considered ruling delivered on September 12, 2017 the court overruled the objectors and assumed jurisdiction. The defendants elected not to file an appeal against the ruling. By raising this issue again in final address, both counsel to the defendants are asking this court to sit on appeal over its own decision, revisit and review it, and then set it aside. This court is functus officio and cannot assume an appellate status over its decision, see Citec International Estate Ltd v Francis & Ors [2014] LPELR-22314 (SC), Augustine Ene v Chief Asuquo Asikpo [2010] 10 NWLR (Pt 1203) 477. The ruling remains the correct position and stands until set aside by the Court of Appeal. It amounts to an abuse of the process of court for learned defence counsel to once again in final address bring up the same issues in the Preliminary Objection upon which the court has given a considered ruling.

[26] It is the law that a claim is circumscribed by the reliefs claimed; and the duty of a claimant is therefore to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same, Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47. It is the law that once a party asserts, he must prove the assertion, section 131 (1) & (2) of the Evidence Act 2011. The main reliefs of the claimants particularly reliefs a, b, & c are hinged on the Trade Disputes Act (TDA) and the Trade Union Act (TUA). The issues that arise for determination therefore are as follows:

  1. Whether the defendants are subject to the provisions of the Trade Disputes Act and the Trade Union Act.

 

  1. Whether the 4th defendant and its members protested and/or picketed the claimants offices/business units on the 18th April 2016.

3. Whether the claimants are entitled to the reliefs they are seeking.

[27] It is the law that parties are bound by their pleadings, Woluchem v Gudi (1981) 5 SC 291 at 320. The claimants have averred in their pleadings that the 1st defendant is a Non-Governmental Organization, and is not a registered Trade Union; that the 2nd defendant is the National Coordinator of the 1st defendant and the 3rd defendant is the General Secretary of Nigeria Union of Railway Workers, a registered Trade Union and an affiliate of the 4th defendant. It is also the averment of the claimants that the 4th defendant is registered under the Trade Union Act. The evidence of CW and DW is that the 1st defendant is not a Trade Union but a Non Governmental Organization. In this regard therefore, it follows logically that the 2nd defendant is simply a member of a Non Governmental Organization/pressure group, and its National Coordinator. There is no evidence before the court that the 3rd defendant is a member of a Trade Union, or the General Secretary of Nigeria Union of Railway Workers who are not parties to this action. Under cross-examination CW stated that he was not familiar with the 3rd defendant, neither did he know him as an elected officer of the 4th defendant or see him carry the flag of the Union of Railway Workers during the protest. The evidence of DW is that he does not know the 3rd defendant.

[28] Consequently, I hold that the 1st defendant not being a Trade Union, the 2nd and 3rd defendants not being members of a Trade Union are not subject to the provisions of the Trade Union Act and the Trade Disputes Act. This Court takes judicial notice of the fact that the 4th defendant Nigeria Labour Congress is a Trade Union registered under the Trade Union Act and represents the interest of its members and members of its affiliated unions. The 4th defendant is therefore subject to the provisions of the Trade Union Act and the Trade Disputes Act. The averment of the claimants in the pleadings is that “no union exists and operates in the 1st claimant and its staff are not members of the 4th defendant or its affiliated unions”. The question then is was there a trade dispute between the claimants and 4th defendant at the material time; and did the 4th defendant and its members protest/picket the claimants offices/business units? Section 48 of the TDA defines trade dispute to mean “ any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person.”

[29] By the claimants’ pleadings, there was no trade dispute or dispute of right with the 4th defendant. The evidence (exhibit C1) reveals that on April 16, 2016 the 1st defendant issued a press release on its face book page at 10.53am signed by the 2nd defendant stating that it was going to begin a campaign against the 1st claimant on 18/04/16 to express its feelings about the poor electricity services, outrageous estimated billings and anti-labour policies after the claimants failed to respond to their letters of complaint. The banners of the 1st defendant (exhibits C4a & C4b) have the inscription: ‘CATEIN IN COLLABORATION WITH CIVIL SOCIETY GROUP; PROTEST IN ACTION’ together with a list of 15 complaints, 6 of which are labour related issues. I find two protesters in the photograph (exhibit C3) holding the flag of the 4th defendant during the protest. The claimants did not identify these two persons at the trial as executives or members of the 4th defendant. CW stated that he believed the 4th defendant was part of the protest as a result of the presence of persons holding the 4th defendant’s flag at the protest. He also said he did not know any of the officers of the 4th defendant protesting. The evidence of DW is that the 1st and 2nd defendants did not involve the 4th defendant, nor did they invite it to the protest or assign any role to it.

[30] It is my considered view applying the test of the reasonable man that in the circumstances, CW cannot be faulted for his belief rightly or wrongly that the 4th defendant and its members were present at the protest as some of the grievances of the protesters were in relation to labour issues.  However, civil suits are decided on the balance of probabilities, on the preponderance of evidence. Each party has adduced credible evidence on the issue of the presence or non-presence and/or participation or non- participation of the 4th defendant at the protest. I find from the totality of the evidence adduced, that the defendants evidence has more weight or preponderate over the evidence of the claimants. The 1st defendant’s press release (exhibit C1) is unequivocal that it is the organizer of the protest, and its banners at the protest set out their complaints (exhibits C4a and C4b). Furthermore, those two persons who carried the 4th defendant’s flag were not identified. For this reason, I find that the 4th defendant Nigeria Labour Congress did not organize the protest and played no part or role in the protest. It was simply a supposition/conjecture by CW and the claimants that the presence of the 4th defendant’s flags at the protest was proof that it played a role at the protest, see Ali v Kano State (2018) LPELR-44201 (CA), MTN v Mundra Ventures (Nig) Ltd (2016) LPELR-40343 (CA) 77-78. I hold that the 4th defendant was not involved in any industrial action, picketing or protest at the claimants’ offices in Ikeja Lagos and its other business units in Lagos.

[31] The photographs (exhibits C2 to C5) show the 1st defendant’s members protested on 18th April 2016 in front of the 1st claimant’s gate and on the street under the watch of men of the Nigeria Police Force. The 1st claimant’s gate was locked and so the protesters could not get into the claimants offices. The 2nd defendant (DW) admitted that he protested. There is no evidence that the protesters entered the 1st claimant’s offices and/or prevented the claimants’ employees from carrying out their lawful duties. It is a fundamental right of the defendants to assemble freely and associate with other persons, form or belong to any association for the protection of their interest, express themselves  and hold opinions. These are rights guaranteed by the provisions of Section 39(1), and Section 40 of the 1999 Constitution (as amended). I find that there was no trespass on the 1st claimant’s premises; no evidence that the claimants’ employees were prevented from carrying out their duties; and no evidence of a wrongful interference with the contract of employment between the claimants and its employees occasioned by the protest that was under the watch of the Nigeria Police Force. I hold that the 1st defendant and its members in exercise of their constitutional rights staged a peaceful protest on the street under the watch of the Nigeria Police Force on the 18th April 2016 to ventilate their ongoing complaint in respect of the claimants’ electricity tariffs and services.

[32] Consequent upon all of the findings and holdings above, the three declaratory reliefs sought by the claimants must fail. They are hereby refused. The restraining injunctive orders predicated on the grant of the declaratory reliefs are refused. The claimants have made a claim for the sum of One Hundred, and Fifty Million Naira as a reasonable estimate of specific damages. This claim is in the realm of special damages that must be specially pleaded, particularised and strictly proved. In other words the claimants are to give necessary particulars in the pleadings, adduce credible evidence and satisfy the court as to how the sum claimed was quantified because special damages are awarded for actual or exact losses suffered, see Luke Nwanewu Onyiorah v Benedict Onyiorah LER [2019] SC 254/2008, Ngilari V Mothercat Ltd [1993] 3 NWLR (Pt 636) 626, Abeh V Jabusco Nig Ltd [2008] 3 NWLR (Pt 1075) 526. The claimants adduced no evidence of how it arrived at this sum. The claimants stated that the sum is “a reasonable estimate of specific damages for the losses suffered.”  This is an indication that there is no proof of the sum claimed and must therefore fail.

[33] The claim for the sum of Twenty Million Naira per day as general damages for trespass on the claimants’ offices or business premises fails as there is no proof the protesters entered into the offices/business units of the claimants. The claim for costs and the claimants’ counsel legal fees is refused. The position of the law is that a claim for counsels fees which does not form part of the claimants cause of action is not one that can be granted, see Ibe v Bonum (Nig) Ltd (2019) LPELR-46452 (CA), Michael v Access Bank (2017) LPELR-(41981) 1 at 48-49; and it is unethical for a litigant to pass the burden of his legal fees to his opponent, see Guiness Nigeria Plc v Nwoke (2000) 15 NWLR (Pt 689) 135.

 [34] On the whole, the claimants have failed to prove their claims. The case is hereby dismissed. Each party is to bear its own costs.

Judgement is entered accordingly.

                                                            Hon Justice O.A.Obaseki-Osaghae

                                                                                 Signed