IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 20TH MAY, 2020
SUIT NO: NICN/UY/34/2018
BETWEEN:
1. NIGERIA UNION OF LOCAL GOVERNMENT
EMPLOYEES (NULGE)
2. MRS. NKOYO OGBERE
3. COMRADE UFOT SUNDAY GEORGE
4. COMRADE RICHARD JACOB EKPE CLAIMANTS COMRADE EDEM EYO EDUOK
(For themselves and as representing the other
Branch Chairmen/Officials of NULGE Akwa
Ibom State)
AND
1. COMRADE ANESTINA IWEH
2. COMRADE OWOANAM AKPANWA
3. COMRADE ADEBAYO AKEEM DEFENDANTS
4. LOCAL GOVERNMENT SERVICE COMMISSION
5. STERLING BANK PLC
6. AKWA IBOM STATE GOVERNMENT
REPRESENTATION:
Ekanem Ekanem with Mercy Ibrahim for the Claimants/Respondents.
Uwem Umoh for 1st, 2nd and 3rd Defendants/Applicants
Ememobong N. Udoh for the 4th Defendant/Applicant
Betty Bassey for the 6th Defendant/Applicant.
JUDGMENT
On 22nd October, 2018, the Claimants filed an Originating Summons against the Defendants praying for the determination of the following questions:
1. Whether the 1st, 2nd Defendants and any other person can validly occupy and function in an office in the 1st Claimant into which they were not duly elected in view of the provisions of Rule 5 (iv) and 21 (i) of the Nigeria Union of Local Government Employees (NULGE).
2. Whether the 1st to 3rd Defendants can validly conduct election into state and local branch executive offices of the 1st Claimant when the State President had not given directive to that effect in view of the provisions of Rule 24 (xii) of the Nigeria Union of Local Government Employees (NULGE) Constitution and in view of the subsistence of tenure of offices of the Claimants and other persons validly elected into and validly occupying such offices and in view of the provision of Rule 21 (iv) of the Constitution of the Nigeria Union of Local Government Employees (NULGE) and the Industrial Arbitration Panel Award of 28/05/2018.
3. Whether the Defendants are authorized to deploy the funds of the 1st Claimant for any other purpose than the purpose of attaining the objective of the union in view of the provisions of Rule 26 (v) of the Nigeria Union of Local Government Employees (NULGE) Constitution.
4. Whether the funds of the 1st Claimant can validly be lodged with the 5th Defendant or any other bank other than the one designated at FCMB account number 3860963019 in view of the Industrial Arbitration Panel Award and the Nigeria Union of Local Government Employees (NULGE) Constitution.
5. Whether the 1st Defendant can usurp, validly occupy the office of, and function as the Akwa Ibom State President of Nigeria Union of Local Government Employees (NULGE) when Comrade (Barr.) Martins Effiong is validly occupying the said office in view of the provisions of Rule 21 (1) and 24 (xii) of the Nigeria Union of Local Government Employees (NULGE) Constitution.
6. Whether the 6th Defendant is empowered to deploy, redeploy, second or in any other manner or language remove the 1st Claimant's Akwa Ibom State President, Comrade (Barr.) Martins Effiong from the Akwa Ibom State Local Government Service where he was employed and served, to the Akwa Ibom State Civil Service without his consent.
7. Whether the transfer of the 3rd to 5th Claimants and other Branch Chairmen of the 1st Claimant from their respective local government of service by the 4th Defendant during the pendency/subsistence of their tenure of office was proper in the circumstance of this case.
In the determination of these questions, the Claimants claimed against the Defendants jointly and severally as follows:
1. A declaration that the 1st, 2nd Defendants and any other person cannot validly occupy and function in any office in the 1st Claimant into which they were not duly elected in view of the provisions of Rule (5) (iv) of the Nigeria Union of Local Government Employees.
2. A declaration that the 1st to 3rd Defendants cannot validly conduct election into state and local branch executive offices of the 1st Claimant when the State President, Comrade (Barr.) Martins Effiong has not given directive to that effect in view of the provisions of Rule 21 (iv) and 24 (xii) of the 1st Claimant’s Constitution.
3. A declaration that the tenure of offices of the Claimants and other persons validly elected and who are Occupying offices in the 1st Claimant is subsisting despite their transfer, deployment, redeployment or secondment.
4. A declaration that the Defendants are not authorized to deploy the funds of the 1st Claimant for any purpose, not being elected into offices of the union that would empower them to act as such in view of the provisions of Rule 26 (v) of the NULGE Constitution.
5. A declaration that the Funds of the 1st Claimant cannot be validly lodged with the 5th Defendant or any other bank other than the one designated at First City Monument Bank (FCMB) with account number 3860963019 in view of the Industrial Arbitration Panel Award and the provisions of the 1st Claimant's Constitution.
6. A declaration that the 1st Defendant cannot usurp or validly occupy the office of and function as the Akwa Ibom State President of the 1st Claimant, when Comrade (Barr.) Martins Effiong was elected into, and is validly occupying the said office in view of the provisions of Rules 5 (iv), 3 (x), (xi) and 21 (i) of the 1st Claimant Constitution.
7. A declaration that the 6th Defendant is not empowered, neither can it validly, in the circumstance of this case, deploy, redeploy, second or in any other manner or language remove the 1st Claimant's Akwa Ibom State President, Comrade (Barr.) Martins Effiong from the Akwa Ibom State Local Government Service, where he was employed and served, to the Akwa Ibom State Civil Service without his consent.
8. A declaration that the transfer of the 3rd to 5th Claimants and other local government Branch Chairmen of the 1st Claimant from their respective local governments of service by the 4th Defendant during the pendency/subsistence of their tenure of office was improper in the circumstance of this case.
9. A declaration that the 4th and 6th Defendants exercised undue dominance over the Claimants by reason of the transfers of the 1st Claimant's elected representatives away from their areas of service and by reason of the 4th and 6th Defendant's refusal to accede to petitions made by the 1st Claimant and its affiliated trade unions to reverse the transfers.
10. A declaration that Comrade (Barr.) Martins Effiong remains the Akwa State President of the 1st Claimant, and the 3rd to 5th Claimants, together with others elected along with them, remain Branch Chairmen of the 1st Claimant of the respective Local Governments where they were elected till the end of their tenure of offices.
11. An order directing the 4th and 6th Defendants to return or post back the 3rd to 5th Claimants and other Branch Chairmen of the 1st Claimant to their respective Local Government Areas and Local Government Chairmen/Councils respectively to enable them complete their tenure as elected branch chairman.
12. An order directing the 4th and 6th Defendants to return or post back the 1st Claimant's Akwa Ibom State President, Comrade (Barr.) Martins Effiong, to the Local Government Service where he is employed and served before his deployment/secondment to enable him complete his tenure as elected State President of the 1st Claimant.
13. An order restraining the 1st and 2nd Defendants from parading themselves as State President and Treasurer respectively of the 1st Claimant and from functioning as such.
14. An order directing the 4th and 6th Defendants to henceforth pay checkoff dues accruing to the 1st Claimant into the 1st Claimant's First City Monument Bank (FCMB) account number 3860963019 or through elected representatives approved by the 1st Claimant.
15. An order directing the 4th and 6th Defendants to fully implement all the resolutions contained in the 2015 post-strike Collective Agreement.
16. An order restraining the 1st, 2nd and 3rd Defendants from conducting or overseeing the conduct of elections into the executive and other offices of the 1st Claimant.
In support of the Originating Summons, the Claimants filed a 34 paragraphs affidavit with 24 Exhibits deposed to by the 3rd Claimant and a written address settled by Ekanem Ekanem in accordance with the rules of this court. In reaction, 1st, 2nd and 3rd Defendants entered a memorandum of appearance on 5th November, 2018 and by leave of court filed on 7th December, 2018 a Joint Statement Defence and a Preliminary Objection by the 1st, 2nd and 3rd Defendants. By leave of court, the 4th Defendant filed its Statement of Defence and Witness Statement on Oath by Inemesit Udofia on the 27th November, 2018. The 4th Defendant also filed a Notice of Preliminary Objection on the 22nd March, 2019. The Notice of Preliminary Objection of the 6th Defendant was filed on the 15th April, 2019 while the Counter Affidavit by the 6th Defendant and in opposition to the Originating Summons was filed with leave of court on the 6th May, 2019. The Notice of Preliminary Objections were taken and dismissed on 21st November, 2019 paving the way for the adoption of parties’ final written addresses on 24th February, 2021.
Claimants’ Case
The 2nd to 5th Claimants are members of the State Executive Council (SEC) of the 1st Claimant as State Treasurer and Local Branch Chairmen respectively. The 1st and 2nd Defendants are the State Secretary and Trustee of the 1st Claimant while the 3rd Defendant is the State Secretary posted from the National Secretariat of the 1st Claimant to Akwa Ibom State.
In its responsibility of regulating relations between the staff and government the 1st Claimant, through its officials met officials of the 6th Defendant on the grievances of staff and a resolution was reached. But instead of implementing the resolutions reached and generally addressing the grievances of staff, the 4th and 6th Defendants resorted to intimidating the 1st Claimant by purportedly deploying the 1st Claimant's State President, Comrade (Barr.) Martins Effiong from the service of the 4th Defendant to that of the 5th Defendant without his consent and declared his office vacant. The 4th and 6th Defendants further transferred the 3rd to 5th Claimants and other branch chairmen from the local governments which they were elected and served as chairmen to other local governments, all in a bid to weaken the 1st Claimant. The 4th and 6th Defendants supported the 1st and 2nd Defendants (who assumed the positions of State President and Treasurer respectively) to fraudulently change the signatories to the 1st Claimant's existing account with the 5th Defendant and diverted the 1st Claimant's check-off dues to the said account thereby abandoning the subsisting account in First City Monument Bank (FCMB) with Account number 3860963019.
The 1st Claimant declared a Trade Dispute which was referred by the Minister of Labour to the Industrial Arbitration Panel. The parties, including the 4th and 6th Defendants, were notified and duly participated in the proceedings at the Industrial Arbitration Panel, which made its Award on 25/05/2018 directing, among others, that the 1st Claimant, Comrade (Barr.) Martins Effiong be returned to his position in the Local Government Service and the branch chairmen earlier transferred from their Local Government of service, be returned to enable them complete their tenure. Despite all these Defendants still refuse to abide by any of the decisions/resolutions reached.
The 1st and 2nd Defendants have impudently concluded plans through the 3rd Defendant to conduct elections into branch executive positions in the 1st Claimant when they have no power to do so, and while the tenure of the 3rd and 5th Claimants is still subsisting, and yet to expire.
1st, 2nd and 3rd Defendants’ Case
The 1st Defendant was elected Deputy President of the Akwa Ibom State Executive Council of the 1st Claimant and presently serve as its Acting President by virtue of NULGE’s letter dated 25th September, 2018. Following the suspension of the 2nd Claimant as the State Treasurer in the State Executive Council of NULGE, the 2nd Defendant was appointed as Acting State Treasurer Monday 18th December, 2017 with a mandate to co-sign all financial instruments of the Union during a meeting of the Akwa Ibom State Executive Council of NULGE. The 3rd Defendant was Secretary of the 1st Claimant who was a representative and employee of NULGE posted to its Akwa Ibom State Secretariat.
It is the case of the 1st to 3rd Defendants that the 3rd Claimant is no longer the Branch Chairman of Nsit Atai Branch of the Claimant as he ceased to be so called since the 31st of January, 2017 when he was redeployed out of the Nsit Atai Local Government Council by the 4th Defendant and therefore no longer a member of the Akwa Ibom State Executive Council of the 1st Claimant or Chairman of the Conference of Branch Chairmen. The 3rd, 4th and 5th Claimants are no longer local Branch Chairmen of the 1st Claimant since they were redeployed to other Local Government Councils different from the ones in which they served as Branch Chairmen. More so, elections had long been conducted into the local Branches of the 1st Claimant in Akwa Ibom State and new officials have been legally elected into these positions.
On the issue of Check of dues, it is the defence of the 1st -3rd Defendants that it was the Branch Chairmen of all the Local Governments who wrote their respective Heads of Local Government Service in Akwa Ibom State not to release any of their check of dues pending when the leadership issue would be resolved. And it was only on the assumption of office of the 1st Defendant as the Acting President of State Executive Council of NULGE, the State Executive Council comprising of all the Branch Chairmen and the State Executive Officers passed a Resolution dated 4th April, 2017 approving the release of the check-off dues to the Branches, State and National body of NULGE, and Nigerian Labour Congress (NLC), and same was remitted to the above bodies till date. All these were done in tandem with the provisions of the Amended Constitution of Nigerian Union of Local Government Employees 2016.
4th Defendant’s Case
The 4th Defendant is a creation of Section 70 (1) and Section 72 Part VII of the Local Government Administration Law CAP. 80, Laws of Akwa Ibom State, 2000 with the responsibilities of appointing, deploying and exercising disciplinary control over persons holding those offices in the Local Government Service from Grade Levels 07 and above. It is the case of the 4th Defendant that the deployment of Martins Effiong as Head of Eket Local Government Council to the main stream of the State service is not novel, was not punitive, but in the interest of the Service as many others were so transferred. It is also argued that the 4th Defendant has never posted any staff of NULGE and NULGE staff are not employees of the 4th defendant as shown in the General Staff Posting dated 31st January, 2017. On the issue of 1st Claimant’s check off dues, it is the defence of the 4th Defendant that same is deducted at source by the salary consultant and remitted to the 1st Claimant without any interference of the 4th Defendant. And that it was upon the vacuum created by the secondment of Mr. Martins Effiong to the State Service, that the Branch Chairmen wrote to their respective Heads of Local Government Service in Akwa Ibom State not to release any of the their check of dues pending when the leadership issue would be sorted out. The 4th Defendant did not take over the running of the Akwa Ibom State Chapter of the 1st Claimant and has never directed or issued a directive on who runs the affairs of the 1st Claimant in Akwa Ibom State and it was on the assumption of office by the then Deputy President as the President of NULGE Akwa Ibom State Chapter, Comrade Anestina Iweh, that a resolution was passed by the State Executive Council of the Union comprising of all the Branch Chairmen and the State Executive Officers approved the release of the Check off dues to the Branches, State and National body of NULGE, and Nigerian Labour Congress (NLC), and same has been remitted to the above bodies till date. The issue of transfer, deployment and secondment between the Local Government and the State Government and vice versa is to strengthen the existing corporation in the deployment of staff between the arms of government. The 4th Defendant equally challenged the institution of suit by Originating Summons as there are so many conflicting issues that must be cleared through various stages of examination before this Honourable Court.
6th Defendant’s Case
The case of the 6th Defendant is that acting in accordance with Rules 020503 (iii) & (iv) of the Akwa Ibom State Public Service Rules and acting in Public Interest, it approved the Secondment of Barr. Martins Effiong, from the Local Government Service to the State Civil Service with effect from 14th October 2016. The action was not to intimidate the 1st Claimant in Akwa Ibom State, but to complement and strengthen the Public Service of the State. To the 6th Defendant the Secondment of Barr Martins Effiong from the Local Government Service to the State Civil Service is an inter-service transfer which is statutory and in accordance with the extant Law, the Contract of Service between the 6th Defendant and every Civil Servant in the State.
On the resolution of the Industrial Arbitration Panel, the 6th Defendant’s defence is that although it received notification of Industrial Arbitration Panel on Friday 24th February, 2018 and participated in the Industrial Arbitration, it is not true that the 6th Defendant agreed to the resolution/award of the Panel because till date, the 6th Defendant have not seen the Award of the Panel and same have not been sent to the 6th Defendant even after applying for the Resolution/Award of the Panel through the Industrial Arbitration Panel and the Ministry of Labour and Employment. So, as far as the 6th Defendant is concerned, there is no Arbitral Award as that the said Arbitration had lapsed between 28th February 2018 to 16th March, 2018 and the 6th Defendant could not have objected to what it has not yet seen.
Claimants' Submissions in Support of the Originating Summons
The Claimants argued all the issues formulated together.
The Claimants started by stating that the 1st and 2nd Defendants who were elected as Deputy President and Trustee respectively of the 1st Claimant abandoned their offices and usurped the offices of State President and Treasurer against Rule 5 (iv) of the Constitution of the Nigeria Union of Local Government Employees (as amended) which provides as follows:
“No person or group of persons shall take over the affairs of the union at any level, for whatever reason, except in accordance with the provisions of this constitution.”
The Claimants also submitted that the 1st and 2nd Defendants do not have the power to direct the 3rd Defendant to prepare for and conduct elections into 1st Claimant's offices as that power is vested on the State President in the person of Barr. Martins Effiong. In support of this assertion, the Claimants cited Rule 24 (xii) which clearly states:
“All staff posted to the state chapter shall work under the close supervision and directives of the State President…”
The Claimants submitted that the position of the President of the 1st Claimant is not vacant and cannot be occupied by the 1st Defendant even with the controversial transfer of the current President, Barr. Martins Effiong. This is because a member who is victimized by involuntary transfer, suspension, dismissal etc. by reason of union activities shall not lose his office, but shall remain to complete his/her tenure. This is the tenure and purport of Rule 3 (v) and (vi) of the 1st Claimant’s Constitution:
“(v) Any member who is involuntarily transferred, suspended, dismissed, retired or otherwise victimised, in any way not expressly mentioned under this section, shall retain the right of membership of the union, and the dues payable by such member, shall be deemed to have been waived during the pendency of the victimization.”
(vi) If the member in (x) above holds an office in the union, such victimisation shall not affect in any way, the holding of such the office, and shall not be used the performance of the duties of the office, and shall not be used as a ground for the members disqualification from re-contesting for that office, on expiration, or any other office in the union.”
The Claimants also submitted several resolutions and correspondence and the Arbitration Award have followed this constitutional provision by maintaining that Barr. Effiong remained the State President of the 1st Claimant in Akwa Ibom State Chapter.
Referring to Exhibit “S” in support of the affidavit in support of the Originating Summons, the Claimants posited that apart from the resolutions passed by the 1st Claimant and the NLC and TUC, the Industrial Arbitration Panel in its award of 28/05/2018 granted all the reliefs sought by the Claimants in this case. The Claimants invited the court to note that even though the Defendants have chosen or elected not to obey the Industrial Arbitration Panel Award, since the award was not objected to till date, it has the force of law and is binding on the parties who submitted to its jurisdiction. On this the Claimants referred to the case of Medical and Health Workers Union of Nigeria vs. Hon. Minister of Labour and Productivity (2008)12 NLLR (Pt. 33) 319 @ 322-323 R. 5 where the Court of Appeal held that an administrative act of the Minister of Labour in the manner akin to the one exercised by the Industrial Arbitration Panel, is a quasi-judicial act. The Claimants further submitted that this is in line with the definition of a Quasi-judicial action as given in the Black’s law Dictionary, sixth Edition at page 847 thus:
“A term applied to the action, discretion etc. of administrative officers or bodies who are required to investigate facts or ascertain the evidence of facts, hold hearing; weigh evidence and raw conclusion from them as a basis for their official action and to exercise discretion of a judicial nature."
The Claimants attacked the Defendants for not obeying the Arbitral Award for being an affront and onslaught on democracy and submitted that a party who knows of an order therefore, whether null or valid, irregular or regular cannot be permitted to disobey it referring to the case of Adams Oshiomhole & Anor vs. F.G.N & Anor (2007) 7 N.L.L.R (pt.18) 164 @ 171 R. 13 & 14; Iron and Steel Workers Union of Nigeria vs. Mgt. Federated Steel Mills Ltd. (2010) 18 N.L.L.R (pt. 51) 56 @ 58 -59, Steel and Eng. Workers Union of Nigeria vs. Avon Crowncaps & Containers Nig. Plc (2010) 18 N.L.L.R (pt.51) 288 @ 291.
The Claimants placed reliance on the case of National Investigation Company Ltd vs. National Union of Hotel And Personal Services Workers (2008) 12 NLLR (Pt. 33) 452 @ 455 R. 3 to contend that an award of the Industrial Arbitration Panel, which has not been objected to within the time allowed under the Trade Dispute Act. CAP T8, Laws of the Federation of Nigeria will be upheld and confirmed by the National Industrial Court.
On the irregularity of the “redeployment” and "secondment" of Barr. Martins Effiong, the State President of the 1st Claimant, which the Industrial Arbitration Panel took cognisance of in making its award, the Claimants contended that the transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorised labour officer as prescribed by section 10 (1) and (2) of the Labour Act, Cap L1, Laws of the Federation of Nigeria. It is therefore the submission of the Claimants that there is nothing to show that the conditions precedent to a valid transfer ascertainable have been complied by the 4th and 6th Defendants with in the instant case.
On the authority of Ogun State Hotels, Abeokuta vs. National Union of Hotels and Personal Services Workers (2010) 18 N.L.L.R (pt. 51) 399 @ 401 - 402 R. 1 & 2., the Claimants posited that where there is no evidence on record that the worker was specifically asked whether he consents to a transfer, the conclusion is that there was no valid transfer of the services of the worker from the old employers to the new employers and the act of victimization and maltreatment of the worker is hereby established without more.
The Claimants having considered the transfer of the President of the 1st Defendant and other local Branch Chairmen of the 1st Claimant as punitive because of their union activities and calculated to weaken and intimate the 1st Claimant, submitted that the law prohibits the punishment and intimidation of any worker for Trade Union activities as in the case of National Union of Food Beverages and Tabacco Employees vs. Sona Breweries Limited, Otta (2007) 9 NLLR (Pt. 24) 280 @283-284 R 5. On that note, it is the submission of the Claimants that the transfer of 3rd to 5th Claimants and the other Local Branch Chairmen of the 1st Claimant was also invalid in the circumstance and therefore liable to be set aside or reversed.
On check off dues, the Claimants noted the refusal of the 1st, 2nd and 4th Defendants to lodge check off dues deducted from staff salaries into the 1st Claimant’s designated Account with First City Monument Bank (Account number 3860963019) and submitted that it is criminal and sacrilegious to open a different account with the 5th Defendant with the 1st Claimant's funds. In fact according to the Claimants upon the registration and recognition of any trade union specified in part 'A' of the third schedule to the Trade Union Act and by Section 5 (3) of the Labour Act and Section 16 (a) of the Trade Union Act, an employer is enjoined to deduct check-off dues from wages and pay same to the Unions so recognised. Example was given of the case of Mix and Bake Flour Mill Ind. Ltd vs. National Union of Foods, Beverages and Tobacco Employees (2004) 1 NLLR (Pt. 2) 247 @ 254 R. 4 &. 6.
From the foregoing, it is the strong view of the Claimants that they have made out a case for the grant of their reliefs as claimed on originating summons in the interest of justice.
1st, 2nd and 3rd Defendants' Submissions in Opposition to the Originating Summons
The 1st -3rd Defendants formulated two (2) issues for determination:
1. Whether the 1st to 3rd defendants had violated the Amended Constitution of Nigeria Union of Local Government Employees 2016 by steering the affairs of the State Executive Council of NULGE seeing that Comrade Martins Effiong’s secondment by the 4th and 6th defendants had left a vacuum in the Union?
2. Whether the 2nd to 5th Claimants have the requisite locus standi to enforce the 2018 Industrial Arbitration Panel award.
Issue 1: Whether the 1st to 3rd defendants had violated the Amended Constitution of Nigeria Union of Local Government Employees 2016 by steering the affairs of the State Executive Council of NULGE seeing that Comrade Martins Effiong’s secondment by the 4th and 6th defendants had left a vacuum in the Union?
The 1st, 2nd and 3rd Defendants answered this in the negative and submitted that by Rule 21 (viii, sic iv) (ix, sic v) of the Amended Constitution of the National Union of Local Government Employees 2016, the Deputy State President naturally took over the reins of affairs of the Union and her actions were further approved by the National Executive Council of NULGE which intervened to stem the imbroglio the absence of Comrade Martins Effiong would have caused by issuing an authority for the 1st Defendant to act.
It is also submitted that the 2nd Defendant’s role as Acting Treasurer was also given legitimacy by the State Executive Council which suspended the 2nd Claimant for undermining the authority of the State Executive Council of NULGE as presently constituted while the 3rd Defendant is officially an employee of the Union posted to Akwa Ibom State and is therefore the livewire approving the actions of the State Executive Council so far.
Issue 2: Whether the 2nd to 5th Claimants have the requisite locus standi to enforce the 2018 Industrial Arbitration Panel award.
Responding to this issue in the negative, 1st, 2nd and 3rd Defendants submitted in paragraph 21 of his Affidavit in Support, the 3rd Claimant admitted that it was the National Executive Council of NULGE through its counsel, Femi Aborisade Esq. that initiated the trade dispute and therefore it was the National Executive Council of NULGE that received the arbitration award. The 1st, 2nd and 3rd Defendants cited the definition in Nwankwo vs. Ononeze-Mabu (2009) 1 NWLR (Pt. 1123) @ Ratio 2 as the: “Locus standi means the legal capacity to institute proceedings in a court of law.” 1st, 2nd and 3rd Defendants and submitted that it is therefore a no brainer that it is the National Executive Council of NULGE that can initiate the enforcement of the said arbitration award, not the 2nd to 5th Claimants and not even Comrade Martins Effiong. So it is the further submission of 1st, 2nd and 3rd Defendants that the institution of this suit by the 2nd to 5th Claimants under the guise of having the blessing of the National Executive Council of NULGE is misleading and an abuse of court processes and has only succeeded in widening a rift in the State Chapter of NULGE.
The 1st, 2nd and 3rd Defendants submitted that Order 17 Rule 15 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 prescribes the manner in which a party/litigant must enforce an arbitral award and that the process of an originating summons is therefore a crooked bow and abuses the natural order of court process.
In urging the court to strike out the suit for being incompetent, the 1st, 2nd and 3rd Defendants submitted that the claimants’ suit therefore fails on several fronts and therefore cannot stand the test of appeal.
4th Defendant’s Submissions in Opposition to the Originating Summons
The 4th Defendant formulated four (4) issues for determination as follows:
1. Whether the redeployment of the former President of the 1st Claimant (Comrade Martins Effiong) by the 4th Defendant to the service of the 6th Defendant was valid in law considering the spirit and letters of section 72 (1) (i) (ii) of the Local Government Administration Law, CAP 80, Laws of Akwa Ibom State, 2000.
2. Whether by the terms of Contract of Service the transfer or Posting of the 2nd to the 5th Claimants as employees of the 4th Defendant was proper.
3. Whether by the nature of this suit, the matter ought to be determined by Originating Summons procedure.
4. Whether this Honourable Court can adjudicate on this matter given the Exhibit LGSC 7 and Exhibit LGSC 8.
ISSUE 1: Whether the redeployment of the former President of the 1st Claimant (Comrade Martins Effiong) by the 4th Defendant to the service of the 6th Defendant was valid in law considering the spirit and letters of section 72 (1) (i) (ii) of the Local Government Administration Law, CAP 80, Laws of Akwa Ibom State, 2000.
The 4th Defendant started by stating that the applicable law guiding its operation is the Local Government (Administration) Law, CAP 80, Laws of Akwa Ibom State, 2000 and quoted Section 72 (1) to that effect:
“The Service Commission shall without prejudice to the powers vested in the Governor of the State, the State Judicial Service Commission and the State Civil Service Commission, have powers to:-
i) appoint persons to offices in the Local Government Service on Grade Level 07 and above; and
ii) deploy, dismiss, and exercise disciplinary control over persons holding such offices.”
The 4th Defendant then identified “shall” and “without prejudice” as two expressions in the above provision which requires judicial elucidation. For the word shall, the case of Aladejobi vs. Nigeria Bar Association (2015) EJSC (Vol.26) @ 84 held 3 was referred to the effect that the purport of the word ‘shall’ as employed in law denotes obligation or a command and gives no room for discretion as it imposes a duty and a peremptory mandate. As for the expression ‘without prejudice’ the 4th Defendant relied on the meaning as “not waving or detracting from” by Oputa, JSC in the case of Tukur vs. Gongola State (1989) 4 NWLR (Pt.117) 517 at 566. It is therefore submitted that the expression without prejudice to the powers vested on the Governor simply means that no rights or privileges of the Governor are to be considered as thereby waived or lost except in so far as may be expressly conceded by him citing the case of Nawa vs. Attorney General, Cross River State (2008) All FWLR (Pt.401) 807 at 836. Paras. C-H.
Applying the foregoing to the facts of the instant case, the 4th Defendant submitted that the 1st Claimant is first and foremost an employee on a service contract with the 4th Defendant and therefore subject to deployment, dismissal and disciplinary control as provided for under section 72 (1) (ii) of Local Government (Administration) Law CAP 80, Laws of Akwa Ibom State, 2000. The 4th Defendant thereafter argued that this why it is curious why Martins Effiong, Esq. did not and has not questioned the power of the 6th Defendant mandating all senior employees of the 4th Defendant to be writing Administrative Professional Officers Compulsory Examination yearly administered exclusively by the 6th Defendant before they can be promoted from Grade level 14 to 15.
It is also contended that the consent of the Claimant, who in any case is a statutory servant of the 4th Defendant and by extension the 6th Defendant is not a legal requirement before such action is taken in public service interest. So the redeployment of the former President of the 1st Claimant by the 4th Defendant acting on the directive of the Governor of Akwa Ibom State through the 6th Defendant was valid according to law.
ISSUE 2: Whether by the terms of Contract of Service the transfer or posting of the 2nd to the 5th Claimants as employees of the 4th Defendant was proper.
In answering this, the 4th Defendant emphasized the importance of the contract of service as the bedrock upon which an aggrieved employee must found his case calling in support of Aderemi, JCA (as he then was) in Omenka vs. Morison Industries Plc (2000) LPELR-10686 (CA), thus:
“I shall start by saying that it is axiomatic that the contract of service is the bedrock upon which an aggrieved employee must found his case; he succeeds or fails upon the terms or conditions contained therein. It follows therefore that in a written or documented contract of service, a court of law must not have resort to any other thing outside the terms stipulated or mutually agreed therein in deciding the rights and obligations of the parties....”
The 4th Defendant reiterated the powers donated by section 72 (1) (ii) of the Local Government (Administration) Law, CAP 80, Laws of Akwa Ibom State, 2000 to “Deploy, dismiss and exercise disciplinary control over persons holding such offices” and submitted that since the law places the responsibility of deployment of its employees on the 4th Defendant, who by default are members of the 1st Claimant, the propriety of such actions cannot be question by the claimant as they are bound by the terms of their contracts. According to the 4th Defendant, transfers or postings or deployment are routine actions of the 4th Defendant imposed by law to strengthen the service and the right of the Claimant as members of the 1st Claimant does not extinguish such legal duty.
It is therefore submitted that in the absence of proof by concrete evidence demonstrating in no certain terms, the undue dominance of the 4th defendant over the claimants by reason of their transfers or any loss or damage the 2nd to 5th Claimant had suffered individually, this court should not be used to invalidate a proper action imposed by law on the 4th Defendant.
Issue 3: Whether by the nature of this suit, the matter ought to be determined by Originating Summons procedure.
On this, the 4th Defendant relied on Order 3 Rules 3 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the proviso in Order 17 (1) to submit that
the reliefs sought by the Claimants are not matters relating principally to the interpretation of the 1st or the 4th Defendant’s Constitution, enactment, agreement or any other instrument relating to employment and labour relations in respect of which this Court has jurisdiction by virtue of provisions of section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by Act of law in force in Nigeria, 1999 (as amended). It is in fact posited by the 4th Defendant that, the Claimants are seeking interpretation and application of the law on matters which are provided under Section 254 (1) (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore, the proper process of instituting this suit would have been by compliant as provided in Order 3 (2) (2) (b). To buttress this, it is argued that paragraphs 6, 10, 11 and 12 of the Claimant’s originating summons, the declarations sought are all bothered on the extant provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which requires the interpretation and application of this Court. Again, that since the Claimants have disputed the fact that their redeployment and postings were done in the public interest and neither the former President of the 1st Claimant Comrade Martins Effiong, Esq. nor the 2nd to the 5th Defendants have adduced any evidence to prove the illegality of their redeployment and posting, the disputes cannot be resolved by affidavit evidence. In urging the court to strike or dismiss the suit for incompetence, the 4th Defendant submitted that given the contentious nature of the claims originating summons is not the proper mode of commencing this action.
Issue 4: Whether this Honourable Court can adjudicate on this matter given the Exhibit LGSC 7 and Exhibit LGSC 8.
The 4th Defendant reproduced Exhibits LGSC 7 and LGSC 8 to submit that the National Body of NULGE which is the 1st claimant cannot possibly issue Exhibits LGSC 7 and Exhibits LGSC 8 and then turn around to sue the officers of the Akwa Ibom State Branch of NULGE including the State Secretary Comrade Adebayo Akeem who is the 3rd Defendant in this suit and that this suit is merely to waste the precious time of this Court. Exhibit LGSC 7 is the Authority given to Comrade Anestina Iweh (1st Defendant) to act and direct the affairs of NULGE in Akwa Ibom State dated 25th September, 2018 and signed by Comrade Chukwuemeka Aguonye (Acting General Secretary). This decision was taken in line with Rule 24 (u) and (xiii) of NULGE Constitution at the end of a National Executive Council (NEC) meeting of the Union held on 5th July, 2018 in order not to allow a vacuum to be created in the affairs of the Union arising from the secondment of Comrade Martins Effiong, State President of NULGE, Akwa Ibom State from the Local Government Service to the State Civil Service. Exhibit LGSC 8 is the official statement or disclaimer on the instant suit No: NICIUY/34/2018 stating that the suit was filed without the consent and authority of the National Body of NULGE and denying ever engaging the services of Ekanem Ekanem, Esq. of Destiny Chambers or any other legal practitioner to institute this or any court action on our behalf against the chapter acting State President and other State Officers of NULGE, Akwa Ibom State. The Exhibit which was signed by the Acting General Secretary Comrade Chukwuemeka Aguonye also affirmed the content of Exhibit LGSC 7 and was copied to 13 others including the Registrar, National Industrial Court, Uyo, Akwa Ibom State.
The Court was therefore urged to reject the Claimant’s claim in its entirely and dismiss this suit as it is procedurally incompetent and fundamentally flawed in law.
6th Defendant’s Submissions in Opposition to the Originating Summons
In opposing this suit, the 6th Defendant adopted all the issues formulated by the Claimants, most particularly issue six (6) and also added one issue for determination, to wit: Whether a party to arbitration can be bound by an arbitral award when he has not yet seen the award or had an opportunity to object to the award.
The 6th Defendant noted the contention of Claimants that the Industrial Arbitration Panel Award, which has not been objected to till date, has the force of law, and is binding upon the parties who submit to its jurisdiction and privies alike and that a party who knows of an order therefore, whether null or valid irregular or regular cannot be permitted to disobey it referring to Medical and Health Workers Union of Nigeria vs. Hon Minister of Labour and Productivity (2008) 12 N.L.R. (pt. 33) 319 @ 322-323 R. 5 and Adams Oshiomole & Anor vs. F.G.N. & Anor (2007) 7 N.L.L.R (pt. 18) 164 .g 171 R 13 & 14.
The 6th Defendant therefore went on to submit that the authorities cited by Claimants Counsel are good authorities, but are not applicable in this circumstance. The 6th Defendant stated that although it was a party to the Industrial Arbitration, it cannot be bound by the purported Arbitral Award because the said award was never sent to it till date in spite of letters demanding for the award to the Industrial Arbitration Panel and the Ministry of Labour and Employment. Arguing that the case of National Investigation Company Ltd. vs. National Union of Hotels And Personel Services Workers (2008) 12 N.L.R (pt. 33) 452 @ 454-455 R 3 is not applicable in this case, the 6th Defendant submitted that there was no way the 6th Defendant can object to what it had not seen. It is the further submission of the 6th Defendant that this is contrary to Section 13 (2) (a) of the Trade Dispute Act T8, LFN 2004, which provided that: "The Minister on receipt of a copy of the Award of the tribunal, shall immediately cause to be given to the Parties, or their representatives, and to be published in such other manner (if any) as he thinks fit a notice, setting out the Awards."
Furthermore, the court was invited to note that the Industrial Arbitration Panel the 6th Defendant participated in, was that between the Nigeria Union of Local Government Employees (NULGE) and Akwa Ibom State and Local Government Service Commission and not that between Representatives of the 2015 retirees of First Bank of Nigeria Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) and First Bank of Nigeria (FBN) as stated in the first paragraph of Exhibit "S".
Based on the foregoing, the 6th Defendant rejected Exhibit "S" as not representing the Arbitral Award the 6th Defendant participated in and maintained that the document is not binding on the 6th Defendant and urged the Court to so hold.
On Claimant’s issue 6 which is the purported controversial transfer of the Barr. Martins Effiong, the 6th Defendant noted the argument of the Claimants that the said transfer was not valid because there was no evidence on record that he was specifically asked whether he consents to a transfer relying on the case of Ogun State Hotels, Abeokuta vs. National Union of Hotels and Personal Services Workers (2010) 18 N. L. L. R (pt. 51) 399 @ 401-402 R. 1 & 2 and section 10 (1) of the Labour Act, Cap L1, Laws of the Federation of Nigeria. Section 10 (1) provides thus:
“The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorized labour officer.
(2) Before endorsing the transfer upon the contract, the officer in question-
(a) shall ascertain that the worker has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as a result of misrepresentation or mistake; and
(b) if by the transfer the worker will - (i) change his form of employment from one which is the subject of an exemption order made under section 8 (2) of this Act; or (ii) be subject to such a change of conditions as in the officer's opinion renders such a course advisable, may require the worker to be medically examined or re-examined, as the case may be.”
In response to this, the 6th Defendant posited that it is the Akwa Ibom Public Service Rules which governs the employment, transfer and secondment of the Claimants and not section 10 of the Labour Act. The 6th Defendant further argued that the secondment/transfer of the Claimants especially that of Barr Effiong, was not a transfer from one employer to another but inter-service transfer within the same Government of Akwa Ibom State. The 6th Defendant went ahead to distinguished the case cited by the Claimants and the facts of the instant case. To the 6th Defendant this case was a case of inter-service transfer within the service of the state with all the accoutrements of the office intact while the case cited by Counsel was a case of transfer from a private company to the state Government service which led to the termination of employment of the workers. It is therefore the contention of the 6th Defendant that the secondment of Claimants including Barr. Effiong having been carried out within the law, and there being no maltreatment or victimization, is valid and not liable to be reversed.
Referring to Section 5 Rules 020503 (iv) of the Akwa Ibom State Public Service Rules, the 6th Defendant submitted that the 6th Defendant has the statutory right to approve the deployment, secondment or inter-service transfer of a Public officer in the service of the State. Rules 020503 (iv) says:
“If it is in the public interest to second an officer to the service of another Government or Approved Body, the period of secondment shall not be limited and the officer shall continue to hold his substantive post and be entitled to increment and promotion and will be treated as having been posted on special duty.”
The 6th Defendant then asked whether a Staff of a Local Government Service can be said to be in the Service of the Public Service of a State and answered in the affirmative. The 6th Defendant also relied on the definition of Public Service of a State in the case of Sharika & Sons Ltd v. The Governor of Kaduna State & Ors. (2013) LPELR-20379 (CA), to submit that the Secondment/lnter-service transfers of Barr. Effiong was lawful and proper.
Not only that, the 6th Defendant also submitted that the transfer/secondment of the Claimants were done in the Public Interest which simply means "public purposes within the state" as in the case of Aso Tim Doz Investment Co Ltd v. Abuja Management Ltd & Anor (2016) LPELR-40367 (CA). And the burden is on the Claimants to prove by their affidavit and attached Exhibits, that the secondment of Barr. Martins Effiong was not made in Public Interest or that it was not lawful which they failed to do in this case calling in support the case of Iwuji v. Federal Commissioner for Establishment & anor (1985) 4 SC (Part 3) Pg 77.
It is the further submission of the 6th Defendant that having not shown that the secondment/transfer was not made in the Public interest or that it was not lawful all their arguments and depositions in the Affidavit particularly paragraphs 7, 12, 15, 24 28, and 32 against the 6th Defendant in this case, are speculative urging the Court to so hold. For effects, the 6th Defendant quoted the dictum of Tobi, J.S.C. in the case of Attorney General of Plateau State v. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346 @ P. 419; Tobi JSC, thus:
"A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high on guesses. As Courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a "mirage" to deceive the defendant and the Court as to the reality of the Cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought."
On the authority the above case and in urging the Court to hold that the case of the claimants against the 6th Defendant is speculative, the 6th Defendant submitted that the allegations in the Claimants’ supporting affidavit as well as Counsel’s argument, are not supported with facts and cogent authorities but very high in guesses.
It is also the contention of the 6th Defendant that the Claimants having accepted the secondment/inter-service transfer cannot turn around to say it was improper as the law does not allow a party to approbate and reprobate it citing Longe v. FBN Plc (2006) 3 NWLR (pt. 967) 250 and Scoa Nigeria Plc v. Taan & Ors (2018) LPELR-44545 (CA) thus:
'The law does frown seriously at such attitude of parties approbating and reprobating in the Court thinking perhaps that they might in so doing win some very cheap points in issue if the Court was so gullible as they thought it to be, but alas they were stopped right in their tract by the Court which saw through their unstable attitude on this issue of the mutually agreed renewal of the sublease and told them the gospel truth by its finding that they have already so agreed on the renewal of the sublease. I cannot but commend the Court below for this sound, impeccable and unimpeachable finding! See A-G. Rivers State v. A-G, Akwa Ibom (2011) 29 WRN 1, where the Supreme Court had opined inter alia thus: "It is the rule of equity that one cannot approbate and reprobate ... It is a doctrine of justice and it is inequitable to blow hot and cold, this principle finds expression in Latin maxim 'Allegans Contraria Non Est Audiendus. "Per Georgewill, J.C.A ( P. 56, paras. A-E)
Similarly, the 6th Defendant submitted that the Claimants having accepted the secondment/inter-service transfer are estopped from challenging the legality or propriety of the said secondment on the authority of Abolarin v. Ogundele (2012) 10 NWLR PG. 253.
Decision of the Court
I have examined the Originating Summons and the affidavits for and against and the arguments of the parties in this suit and I think the justice of the case demands that I consider the issues as argued by the Claimants for being more germane.
But before I do that, it is imperative to dispose of the written addresses of parties to the two (2) issues raised by the court on the 9th November, 2020, to wit: (1) When the tenure of the Claimants as members of Akwa Ibom State Branch Executive Council ended and whether the Claimants are still competent to bring this suit, and (2) Whether the internal mechanisms for resolution of the dispute have been exhausted before this action was instituted. The 4th Defendant filed its written address on 26th November, 2020 while the Claimants and 1st to 3rd Defendants filed theirs on the 30th November, 2020. There is a consensus between the parties that the tenure of the Claimants in this case has expired on 17th December, 2020. The consequences of the date of expiration however does not enjoy such unanimity. The opinion of the 1st to 4th Defendants is that the Claimants are no more competent to pursue this case as the judgment will serve no useful purpose to them but to waste precious time of the court. This is in view of the fact that fresh elections were conducted and new executive officers awaiting to be sworn in. But as far as the Claimants are concerned since the case is competent on 22nd October, 2018 it is still competent as there is nothing to render it otherwise and that basically the case is to give effect to the Industrial Arbitration Panel award of 28th May, 2018. Although I am not in agreement with the submission of the Claimants on the award as there is nothing on record to justify that claim, I think the justice of the case demands that the case be heard on its merit for whatever it is worth. After all, it is a fundamental principle of law that the rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question particularly when the question that arose were purely of law and of interpretation of the relevant statutes. See Aremo II v. Adekanye (2004) 7 S.C.N.J. 231-232 and Mobil v. L.S.E.P.A. (2002) 12 S.C.N.J. 25. On the issue of internal mechanism, I must say straight away that in spite of the opposition that there is nothing like that from the Defendants, I agree with the assertion of the Claimants that the events leading to the declaration of trade dispute and the Industrial Arbitration Panel Award are all internal mechanisms for the resolution of the dispute before the institution of this case. It goes without saying that the two (2) issues raised suo motu are reconciled in favour of the Claimants.
There is yet another issue and that is the Notice of Withdrawal by Mrs. Nkoyo Ogbere, the 2nd Claimant in this case. This motion is dated 3rd August, 2020 and filed on 12th August, 2020 pursuant to Order 13 of the rules of this court. Since the parties did not deem it fit to say anything and I am enjoined not to leave any application unattended to before judgment, I have no hesitation in granting same. The name of Mrs. Nkoyo Ogbere is therefore hereby struck out from this suit.
Now to the crux of the matter. The following facts as borne out from the affidavit in support of the originating summons and documentary evidence remained undisputed: That by a letter 14th October, 2016 signed by the Head of Service, the State President of the 1st Claimant was deployed from the Unified Local Government Service to the State Civil Service as a Director of Administration. That by a circular dated 31st January, 2017, the Permanent Secretary, Local Government Service Commission of Akwa Ibom State posted seventeen (17) Branch Chairmen (including 2nd to 5th Claimant) of the 1st Claimant from the Local Government Council where they were elected to new Local Government Councils. That the 4th and 6th Defendants facilitated and assisted the 1st and 2nd Defendants to take over the running of the 1st Claimant. That at one point the 4th Defendant stopped the remittance of check-off dues by the Local Government Councils and directed how the check-off dues should be disbursed. That the 1st and 2nd Defendants have concluded plans to conduct elections into the respective branch executive offices and had caused notices to be issued in that regard.
As undisputed as these fact are, they are the subject of intense debate in this case. To the Claimants, the Defendants do not have the constitutional power to do the foregoing acts which are calculated to destabilise and levy war on the 1st Claimant. To the 1st to 3rd Defendants, by Rule 21 (viii, sic iv) (ix, sic v) of the Amended Constitution of the National Union of Local Government Employees 2016, the Deputy State President naturally took over the reins of affairs of the Union in the absence of Comrade Martins Effiong, the former president and this was approved by the National Executive Council of the 1st Claimant. To the 4th and 6th Defendants, the secondment/transfers of Claimants as employees were carried out by virtue of Section 5 Rules 020503 (iv) of the Akwa Ibom State Public Service Rules and therefore not intended as maltreatment or victimization.
From the expositions of the parties in this case, I can identify two (2) issues which requires resolution. In the resolution of the issues recourse should be had to the Nigeria Union of Local Government Employees Amended Constitution, 2016. Rule 5 (iii) of the Constitution has professed its supremacy and its binding nature on all organs, officials and members. The first is the takeover of the affairs of the 1st Claimant by the 1st to 3rd Defendants. The Defendants sought to explain away this by saying the 1st Defendant is the natural person to takeover in the absence of Mr. Comrade Martins Effiong relying on Rule 21 (v). Now, the Constitution of the union (NULGE) at Rule 5 (iv) decreed that no person or group of persons shall take over the affairs of the Union at any level, for whatever reason, except in accordance with the provisions of the constitution. The question here is can the takeover by the 1st, 2nd and 3rd Defendant be justified under Rule 21 (iv) and (v)? I think not. Rule 21 (v) provides “The National Executive Council or State Executive Council shall have the power to fill relevant vacancy in respect of any office created under this Constitution.” Rule 21 (iv) is to the effect that no vacancy in any of the organs shall invalidate the proceeding of the organ. There is nothing to show that the office of the State President or any the office occupied by the Claimants were declared vacant or they were relieved of their position for whatever reason. I have therefore no doubt in finding and holding that the taking over of the affairs of the union by the 1st to 3rd Defendants was a clear violation of the amended Constitution of Nigeria Union of Local Government Employees, 2016.
Closely connected with this is the second issue, which is the vexed transfer, secondment or deployment of Martins Effiong, 2nd to 5th Claimants and other Branch Chairmen/officials of the union in Akwa Ibom State. It is true that the 4th and 6th Defendants have the right as employers to redeploy, transfer or second the Claimants. But in appropriate cases, transfers may be unjustified; and the law frowns on such especially where they are punitive or mala fide as where the transfer is a product of and a punishment for trade union activities. See the unreported Suit No. NICN/LA/139/2014, the judgment of which was delivered on 17th December 2019 at paragraph 65. The transfers here have the trappings of punishment and mala fide written all over. Again, the impression being created by the Defendants is that the transfers have created a vacuum in the union since they ceased to occupy their various positions with the transfers/redeployment. This is however far from the truth. Rule 3 (v) and (vi) of the 1st Claimant’s Constitution have provided a complete answer to that fallacy thus:
“(v) Any member who is involuntarily transferred, suspended, dismissed, retired or otherwise victimised, in any way not expressly mentioned under this section, shall retain the right of membership of the union, and the dues payable by such member, shall be deemed to have been waived during the pendency of the victimization.”
(vi) If the member in (x) above holds an office in the union such victimisation shall not affect in any way, the holding of such office, or the performance of the duties of the office, and shall not be used as a ground for the member’s disqualification from re-contesting for that office on expiration, or any other office in the union.”
The letter of authority to the 1st Defendant to act and direct the affairs of the union dated 25th September, 2018 and signed by the Acting General Secretary which is at variance with the above is suspect and therefore illegal. Having so found what is the fate of the reliefs in this case?
To start with, reliefs 1, 2, 6 and 13 dealing with the occupation and the functions of the office by the 1st to 3rd Defendants are grantable in view of violations of the amended Constitution of Nigeria Union of Local Government Employees, 2016.
Reliefs 3 and 10 seeking for confirmation that the Claimants and other persons validly elected are still subsisting cannot be granted. The tenure of the Claimants in this case having expired on 17th December, 2020, the tenure has run out of time, spent, concluded, elapsed and gone. It cannot be made any longer. See the dicta of C. B. Ogunbiyi, J.S.C. in the case of Ogbolosingha v. Bayelsa State Electoral Commission (2015) 2 S.C.N.J. 181:
“From all deductions, there is nowhere provided by the Local Government Law or any other statute that section 27 (3) (a) under reference did clothe any court with the powers to grant an extension of tenure to a chairman whose term has been expended, truncated or is spent by another candidate of the same party. Again see Ladoja v. INEC and also Marwa v. Nyako (supra). Therefore, it is not within the court's competence and indeed not even this court, as the apex court, to set the precedent by extending the tenure of any political party beyond the time specified by the Constitution.”
In the same vein, the tenure of the of Comrade Martins Effiong led Executive Committee having been truncated and spent cannot be revived. See also Ugwu v. PDP (2015) 2 S.C.N.J. 57 and Odom v. PDP (2015) 2 S.C.N.J. 97-98. The same goes with the reliefs 7, 11 and 12 on transfer, redeployment and the return of the Claimants to their former posts.
The reliefs on funds and check-of dues in reliefs 4, 5 and 14 cannot be granted in view of the consequential orders to be made anon. Reliefs 8 and 9 on the conduct of the Defendants on the transfer of 3rd to 5th Claimants and the undue dominance of the 4th and 6th Defendants over the 1st Claimants respectively are grantable. Relief 15 which is the implementation of the 2015 post-strike having not made out cannot be granted. Relief 16 seeking for a restraining order against 1st, 2nd and 3rd Defendants from conducting or overseeing the conduct of elections into the executive and other offices of the 1st Claimant must be granted. This is in view of Article 3 of Convention No. 87 of the ILO which gives workers and employees right to decide for themselves the rules which should govern the administration of their organizations and the elections thereof without interference especially by the public authorities. This is the whole essence of freedom of association.
In the light of the foregoing and for the avoidance of doubt, it is hereby declared as follows:
1. That the 1st, 2nd Defendants and any other person cannot validly occupy and function in any office in the 1st Claimant into which they were not duly elected in view of the provisions of Rule (5) (iv) of the Nigeria Union of Local Government Employees.
2. That the 1st to 3rd Defendants cannot validly conduct election into state and local branch executive offices of the 1st Claimant when the State President, Comrade (Barr.) Martins Effiong has not given directive to that effect in view of the provisions of Rule 21 (iv) and 24 (xii) of the 1st Claimant’s Constitution.
3. That the 1st Defendant cannot usurp or validly occupy the office of and function as the Akwa Ibom State President of the 1st Claimant, when Comrade (Barr.) Martins Effiong was elected into, and is validly occupying the said office in view of the provisions of Rules 5 (iv), 3 (x), (xi) and 21 (i) of the 1st Claimant Constitution.
4. That the transfer of the 3rd to 5th Claimants and other local government Branch Chairmen of the 1st Claimant from their respective local governments of service by the 4th Defendant during the pendency/subsistence of their tenure of office was improper in the circumstance of this case.
5. That the 4th and 6th Defendants exercised undue dominance over the Claimants by reason of the transfers of the 1st Claimant's elected representatives away from their areas of service and by reason of the 4th and 6th Defendant's refusal to accede to petitions made by the 1st Claimant and its affiliated trade unions to reverse the transfers.
It is also hereby granted and ordered as follows:
1. The Akwa Ibom State Executive Council of Nulge headed by the 1st Defendant, Comrade Anestina Iweh, having assumed power in violation of the Nulge Constitution and under questionable circumstances cannot stand and is hereby declared illegal and dissolved.
2. The purported elections conducted or/and to be conducted thereof for the membership of the Akwa Ibom State Executive Council of Nulge is hereby annulled.
With this and the expiration of the tenure of the Martins Effiong’s led State Executive, it means there are no legally elected executives of the Akwa Ibom State Executive Council of Nulge in the eyes of the law. In order to forestall the existence of a vacuum in the running of the 1st Claimant in the State, I am inclined and duty bound to make a consequential orders for a proper and final determination of this matter. See the case of Kayili v. Yilbuk (2015) 2 S.C.N.J. 335. Accordingly, I make bold to make the following orders:
i) The National Executive Council (NEC) of Nulge shall organize and conduct elections for the Akwa Ibom State Executive Council of Nulge within three (3) months from today.
ii) Under no circumstances shoud the 3rd Defendant in this case, Comrade Adebayo Akeem, participate, under any guise whatsoever, in the organisation and/or conduct of the election to be conducted by the National Executive Council (NEC).
Judgment entered accordingly.
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HON. JUSTICE M. A. NAMTARI