IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON JUSTICE BASHAR A. ALKALI

DATE: THURSDAY 30th SEPTEMBER, 2021                        Suit No: NICN/YEN/37/2019

BETWEEN:

1.      Mr. Kalama John Tonpre

2.      Mr. Hector Johnson

{For themselves and on behalf of the members                    CLAIMANTS

Of the Nigerian Union of Teachers

Bayelsa State Chapter}

 

AND

 

1.       Comrade Igbudu Pedro Dennis

2.      Comrade Ibietan Simeon F.

3.      Comrade Lucky N. Teingiomonigha Sampson

4.      Comrade Ohis Quincy Ovufzirie                                     1ST SET OF DEFENDANTS

5.      Comrade Godspower O. Nancy

6.      Comrade Ogidikpe Ebipreye S.

7.      Comrade Kenigbola Izi

8.      Comrade Bariki Andayigha

AND

COMMISSIONER OF POLICE, BAYELSA STATE  …………   2ND DEFENDANT

 

REPRESENTATION

Mr. Stanley Damabide Esq for the Claimants.

Counsel to the 1st set of Defendants absent.

Counsel to the 2nd set of Defendants absent.

 

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimant by an originating summons dated and filed on the 2nd day of August, 2019 claims for the determination of the following questions:

1.      Whether by virtue of sections 2 (1) and 5 (6) of the Trade Unions Act, Cap T14, Laws of the Federation of Nigeria 2004 the 1st set of Defendants and persons they represent and lead, can operate or run a parallel Trade Union in any unregistered trade union name, including the Academic Staff of Secondary Schools {ASSUS}?

 

2.      Whether by virtue of sections 4 & 6 of the Police Act, Cap P 19 Laws of the Federation of Nigeria 2004 the 2nd Defendant has an obligation in law to prosecute any person {s} including the 1st set of Defendant who acts in breach of section 2 of the Trade Union Act, Cap T14 Laws of the Federation of Nigeria 2004 and punishable under section 50 of the same Act?

 

If the answers to the foregoing are in the negative {question 1} and in the positive {question 2} the claimants claim as follows:

 

a.       A Declaration to the effect that the 1st set of Defendants and persons they represent and lead cannot operate or run a parallel Trade Union for Teachers in Bayelsa State in any unregistered trade union name: including the name; “Academic Staff Union of Secondary Schools {ASUSS}.

 

b.      An Order of perpetual injunction restraining the 1st set of Defendants or their assigns, associates and privies from operating or running a parallel Trade Union for Teachers in any registered Trade Union name including the name “Academic Staff Union of Secondary Schools {ASUSS}.

 

c.       A Declaration that the 1st set of Defendants operation or running of a parallel Trade Union for Teachers in Bayelsa State in any unregistered trade union name; including the name: “Academic Staff Union of Secondary Schools {ASUSS}; is in breach of section 2 of the Trade Unions Act Cap T 14, LFN 2004 and constitutes an offence punishable under section 50 of the Trade Unions Act as aforesaid.

 

d.      An Order compelling the 2nd Defendant to prosecute the 1st set of Defendant in accordance with relief {c} above.

 

The originating summons is supported by an 11 paragraphs affidavit deposed to by the 2nd Claimant. Attached to the affidavit are five {5} annexures marked as “exhibits A – E” and a written address.

 

In response to the originating summons the 1st set of Defendant filed a Memorandum of Conditional Appearance dated the 6th day of November, 2019 and filed on the 7th day of November, 2019. The 1st set of Defendants also filed a twenty five paragraphs counter affidavit dated the 2nd day of January, 2020. Attached to the counter affidavit are five {5} annexures marked as exhibit A – E” alongside a Motion on Notice for extension of time within which the 1st set of Defendants may file their counter affidavit and written address in opposition to the Claimants’ affidavit in support of originating summons dated the 2nd day of January, 2020 was moved and granted by the Honourable court on the 4th day of February, 2020. In further response, the 1st set of Defendants brought a Notice of Preliminary Objection. The 2nd set of Defendant in response to the Claimants originating summons filed an eleven paragraphs counter affidavit and a written address dated the 6th day of February, 2020.

 

THE 1ST SET OF DEFENDANTS’ NOTICE OF PORELIMIANRY OBJECTION

 

The 1st set of Defendants filed a Notice of Preliminary Objection dated the 9th day of July, 2020 and filed on the 14th day of July, 2020. The application is brought under the inherent jurisdiction of this Honourable court. The Defendants /Applicants are praying for the following:

 

 

1.      An Order of this Honourable court striking out this suit for lack of jurisdiction to entertain, hear and determine same.

 

2.      An Order of this Honourable court striking out this suit on the ground that it is incompetent.

 

3.      An order striking out this suit as same is an abuse of court process

 

And for such further order {s} as this Honourable court may deem fit to make in the circumstances of this case.

 

The grounds upon which this application is predicated is set out in the schedule as follows:

 

1.      That the 2nd set of the Defendant is a Federal Government agency and it is only the Federal High Court that is vested with the jurisdiction to issue an order of mandamus against it.

 

2.      The Claimants have not fulfilled the conditions precedent to the issuance of mandamus before filing this suit.

 

3.      That Academic Staff Union of Secondary Schools {ASUSS} and the purported persons the 1st set of Defendants represent and lead are not parties to this suit and this Honourable court cannot make an order against a person who is not a party to the suit before it.

 

4.      That the issue whether the 1st set of Defendants can operate under the name of Academic Staff Union of Secondary Schools {ASUSS} or in any other name is the subject of litigation in Suit FHC/ABJCS/31c/08 and an interlocutory appeal pending at Supreme Court in No. SC/433/2014 between Charles O. Faluyi & Anor vrs Nigeria Union of Teachers.

 

5.      That this suit is multiplication of action and as such an abuse of court process.

 

6.      That the right being claimed in this suit is the right of Nigeria Union of Teachers {NUT} and not that of the Claimants and Nigeria Union of Teachers {NUT} is not a party to this suit.

 

7.      That the Claimants lack the locus standi to file this suit.

 

The application is supported by a six {6} paragraphs affidavit. Attached to the affidavit is one annexure marked as “exhibit A” and a written address. In the written address learned counsel to the 1st set of Defendants/Applicants formulated a sole issue for determination as follows:

 

            “Whether in the circumstances of this case, this Honourable court has the            jurisdiction to entertain, hear and determine this suit?

 

 

In arguing the sole issue for determination learned counsel submitted that this court lacks the jurisdiction to entertain, hear and determine this suit based on the following grounds:

 

1.      The 2nd set of Defendant is a Federal Government Agency and by the provisions of section 251 {1} {p} of the constitution of the Federal Republic of Nigeria, 1999 as amended only the Federal High Court can grant an order of Mandamus against the 2nd set of Defendant.

 

2.      Learned counsel submitted that the condition precedent to be fulfilled before filing a suit of this nature has not been fulfilled. The law is that before an applicant for order of mandamus institute an action in court, the applicant must show that he has made application to the appropriate authority to act and it was refused. There is no such evidence before this court. He relied on the case of Allison Akene Yida & Ors vrs Town Planning Authority & Anor {2013} LPELR 20410 {SC} pp 19 – 20 paras E – C.

 

3.      Learned counsel further submitted that the Academic Staff Union of Secondary Schools {ASUSS} and the persons the 1st set of Defendants represent and lead as alleged by the claimants are not parties to this suit. It is trite law that a court cannot make an order against a person who is not before the court as the court lacks jurisdiction. He relied on the case of Oyeyemi & Ors vrs Owoeye & Anor {2017} LPELR 41903 {SC} pp 27 – 28 paras D – A. Learned counsel submitted that the filing of this suit constitute an abuse of court process as the reliefs being claimed by the Claimants herein is being claimed by the Nigerian Union of Teachers against members of Academic Staff Union of Secondary Schools {ASUSS} in Suit No: FHC/ABJ/CS/31c/2008 and Appeal No: SC/433/2014 as shown in the exhibit attached to the affidavit. Learned counsel submitted that abuse of court process of court also consists of an improper use of issue of judicial process or process already issued to the irritation or annoyance of the opponent. Equally amounting to abuse is to institute an action during the pendency of another one claiming the same reliefs as in the instant case. It does not matter whether the matter is on appeal or not, as long as the previous action had not been finally decided, any subsequent action would constitute an abuse of court process. He relied on the cases of Nyah vrs Noah {2007} 4 NWLR {pt. 1024} 320 @ 337 para E – F pg 338 para G – H pg 339 para E – F and the locus classicus case of Chief Sodipo vrs Limminkainenoy & Anor {1992} 8 NWLR {pt. 258} 229 @ 242. Learned counsel submitted that if somebody institutes proceeding to obtain a relief in respect of a particular subject where exactly the same issue is raised in proceedings already instituted same will be abuse of court process. He cited the case of Nnama vrs Nwanebe {1991} 2 NWLR {pt. 172} 181. Learned counsel contended that in view of the Suit No: FHC/ABJ/CS/31c/08 and Appeal No: SC/433/2014 which is pending before the filing of this suit, it amount to improper use of the judicial process by the Claimants in litigation to interfere with the due administration of justice. He cited the case of Saraki vrs Kotoye {1992} 9 NWLR {pt. 264} 156 @ 188 – 189. Learned counsel submitted that no court will support or encourage abuse of its process. He cited the case of Shifarm Ode & Ors vrs Balogun & ors {1999} 10 NWLR {pt. 622} 214 @ 226 – 227. Learned counsel argued that this suit is brought in bad faith and where abuse of process is adjudged like the instant case, a court worth its salt must be ready to prevent the improper use of its machinery.

 

4.      Learned counsel submitted that the Claimants not being a Trade Union lack the locus standi to file this suit on the ground that the reliefs sought in this suit is for the benefit of the Nigeria Union of Teachers {NUT} who is not a party to this suit. The Claimants in paragraph 1 of their supportive affidavit stated that Nigeria Union of Teachers they are fronting for is a registered trade union. In other words the Nigeria Union of Teachers can sue and be sued in its registered name and not through surrogates like the Claimants. The Claimants herein have no personal interest in the subject matter of this suit. He relied on the cases of Shibkau vrs A.G. Zamfara State {2010} 10 NWLR {pt. 1202} p. 312 @ p337 {paras G – H} and Yesufu vrs Governor of Edo State & Ors {2001} 13 NWLR {pt. 731} p. 517. Learned counsel submitted that the absence of locus standi on the part of the Claimants gives the Defendants the right to complain and it also goes to the competence of any court to exercise the judicial powers vested in court by the constitution. He relied on the case of Sehindemi vrs A.G Lagos State & Ors {2006} 10 NWLR {pt. 987} 1 @ page 12 ratio 25.

 

In conclusion, learned counsel urged this Honourable court to strike out this suit as this Honourable court lacks the jurisdiction to entertain same.

 

CLAIMANTS’ COUNTER AFFIDAVIT TO THE 1ST SET OF DEFENDANTS’ NOTICE OF PRELIMINARY OBJECTION

 

In response to the 1st set of Defendants’ preliminary objection, the Claimants filed a six paragraphs counter affidavit dated and filed the 28th July, 2020 and a written address. In the written address learned counsel to the Claimants formulated three issues for determination as follows:

a.       Whether the parties and the subject matter in Suit No: FHC/ABJ/CS/31c/08 and Appeal No: SC/433/2004 are one and the same as this suit?

 

b.      Whether by the provisions of sections 254c {i} {a} and {b} of the 1999 constitution of the Federal Republic of Nigeria {as amended} and section 17 {1} and {2} of the National Industrial Court Act, 2006 this Honourable court can order the 2nd Defendant to act in preservation of the provisions of the Trade Unions Act Cap T 14, Laws of the Federation of Nigeria, 2004?

 

c.       Whether the Claimants have the requisite locus standi to institute this action.

 

In arguing the first issue for determination learned counsel submitted that the subject matter in Suit Number FHC/ABJ/CS/31c/08 and Appeal Number SC/433/2014 is obviously not the same with the present suit.  Learned counsel argued that Suit No FHC/ABJ/CS/31c/08 have as its subject matter the issue of the propriety of registration of any other trade union for Teachers outside the Nigeria Union of Teachers while the subject matter of the present suit is whether the 1st set of Defendants can run or operate any parallel trade union in any unregistered name and whether the 1st Defendant should not be prosecuted by the 2nd Defendant for doing so, giving the provisions of sections 2{1}, 5 {6} and 50 of the Trade Unions Act, Cap T14 Laws of the Federation of Nigeria, 2004? Learned counsel further submitted that it is obvious from the records that the parties are also not the same. While the Claimants herein are suing for themselves and on behalf of the members of the Nigerian Union of Teachers, Bayelsa Chapter against the 1st set of Defendants in their individual and collective capacities as well as the Commissioner of Police, Bayelsa State. Suit No: FHC/ABJ/CS/31c/08 is between the Nigeria Union of Teachers and the Ministry of the Employment, Labour and Productivity: the Registrar of Trade Unions and Messrs Charles O. Faluyi and Olusola Adojutelegan. The later were sued for themselves and on behalf of the Academic Staff Union of Secondary Schools {ASUSS} formerly Conference of Secondary School Tutors Nigeria {COSST}. The parties are obviously not the same. He cited the case of Agwasim vrs Ojichie {2004} 18 NSCQR {pt. 1} 359 @ 360 - 361, where the Supreme Court held that for an action to constitute an abuse of court process, there must be court processes involving the same parties pursuit of the same right or relief.

 

On the second issue whether by the provisions of sections 254c {i} {a} and {b} of the 1999 constitution of the Federal Republic of Nigeria {as amended} and section 17 {1} & {2} of the National Industrial Court of Nigeria Act, 2006 this Honourable court can compel the 2nd Defendant to act in preservation of the provisions of the Trade Union Act? Learned counsel submitted that it is trite law that the jurisdiction of courts in Nigeria is as conferred either by the constitution of the Federal Republic of Nigeria or the enabling statute which established the court. He cited the case of Mailantarki vrs Tongo & ors {2017} 27, LRCN 119 @ 126 ratio 2. Learned counsel contended that by virtue of section 254 1 {b} of the 1999 constitution of the Federal Republic of Nigeria {as amended} this Honourable court has to the exclusion of any other court, jurisdiction on civil cases and matters relating or connected with or arising from some statutes including the Trade Unions Act, Cap T14 Laws of the Federation of Nigeria, 2004. Also by virtue of the provisions of section 17 {1} and {2} of the National Industrial Court Act, 2006, this Honourable court has powers to make an order of mandamus requiring any act to be done or an order of prohibition notwithstanding that the order is made against an officer or authority of the Federal State, or Local Government as such. Learned counsel submitted that Black’s Law Dictionary Page 980 {8th Edition} mandamus was defined as “a writ issued by a Superior Court to compel a Lower Court or a Government Officer to perform mandatory or purely ministerial duties correctly”. In strict legal sense, the Claimants’ relief sought against the 2nd Defendant is not an order of mandamus but an order that this Honourable court can exercise pursuant to the available statutes.

 

Learned counsel submitted that assuming without conceding that this Honourable court lacks the jurisdiction to make an order compelling an agent of the Federal Government to do an act, the 1st set of Defendants/Objector are not contending that this Honourable court lacks powers to grant the other reliefs being sought. It is settled law that a court’s jurisdiction will not be ousted simply because it lacks jurisdiction to grant some of the reliefs claimed as long as the subject matter is within the court’s jurisdiction. He relied on the case of Garba vrs Mohammed & Ors {2017) 263 LRCN 85 @ 91 Ratio 2. Learned counsel argued that the subject matter borders on the interpretation and the implications of the Trade Unions Act, Cap T14 Laws of the Federation of Nigeria, 2004 which is within the jurisdiction of this Honourable court and urged this Honourable court to so hold.

 

On the third issue whether the Claimants have the requisite locus standi to institute this action. Learned counsel answered in the affirmative and submitted that the facts adduced and the applicable law is what determines the right and obligations of the parties. A party who has been aggrieved by another naturally has the right to sue which is same as locus standi. He cited the case of Daniel vrs INEC & ors {2015} 247, 157 @ 170 ratio 11. Learned counsel contended that in the instant case, the 1st set of Defendants acting in breach of the Trade Union Act 2014 are running and operating a parallel trade union which is affecting the smooth operations of the Claimants registered trade union hence this suit. Learned counsel contended that locus standi lies in favour of the Claimants and urged this Honourable to so hold.

 

In conclusion, learned counsel urged this Honourable court to dismiss the preliminary objection raised by the 1st set of Defendants as no basis exists for a positive consideration and grant of same.

 

The preliminary objection was taken together with the substantive suit as permitted by Order 18 Rule 3 of the National Industrial Court Rules 2017. The preliminary objection was thus argued on same 3rd day of November, 2020 before the originating summons.

 

CASE OF THE CLAIMANTS

 

By the affidavit in support of the originating summons deposed to by Mr. Hector Johnson {the 2nd Claimant}, it is their case that the 1st Claimant and himself as the Chairman and Secretary respectively of the Bayelsa State Chapter of the Nigerian Union of Teachers, while the 2nd Defendant is the Officer in charge of the Bayelsa State Command of the Nigerian Police Force, the 1st set of Defendants are members of the Executive Council of an unregistered Trade Union that was named the Academic Staff Union of Secondary Schools {ASUSS}. The 2nd Claimant states that the Claimants are members of the Nigerian Union of Teachers {NUT} a registered Trade Union that protects and promotes the interest of all Teachers across all levels of the educational strata in Nigeria, Bayelsa State inclusive and has so been since 1982. In 2017, the 1st and 2nd Defendants in the 1st set of Defendants and 10 others as Claimants instituted Suit No: NICN/YEN/1m/2017 where they claimed for an order of perpetual injunction restraining the Claimants and the Nigerian Union of Teachers as respondents from infringing on their right to assemble or associate under the name ASUSS. However, the action was struck out {ASUSS not being a registered Trade Union} but the 1st set of Defendants continue to operate under the same name and parading themselves as a Trade Union and harassing members of the Nigerian Union of Teachers. This action caused him to write a letter to the Ministry of Labour seeking for clarification on the status of the Academic Staff Union of Secondary Schools {ASUSS} and in reply the State Controller of the Bayelsa State Office of the Federal Ministry of Labour wrote them a letter informing them that the Academic Staff Union of Secondary Schools is not a registered Trade Union and such cannot operate as one. The 2nd claimant stated that the peace and stability of the Trade Union Community as well as the well being of its members are being threatened by the afore stated action of the Defendants who have been acting and writing letters to some Bayelsa State Government offices as a parallel Trade Union hence this suit.

 

CASE OF THE 1ST SET OF DEFENDANTS

The first set of Defendants in response to the originating summons filed a twenty five paragraphs counter affidavit dated the 2nd day of January, 2020. Attached to the counter affidavit are five annexures marked as “exhibits A – E” respectively.

 

The counter affidavit deposed to by Comrade Ohis Quincy Owezirie {the 4th Defendant in this suit}, it is the 1st set of Defendants’ case that the Nigerian Union of Teachers {NUT} particularly its leadership does not protect and promote the interest of its members, hence Secondary School Teachers have massively withdrawn their membership from the Nigerian Union of Teachers {NUT} and requested from their employers to stop deduction of check off dues from their salaries in favour of Nigerian Union of Teachers and following this withdrawal the Claimants and Nigerian Union of Teachers Officers embarked on campaign of calumny against the Secondary Schools Teachers who have withdrawn their membership from Nigerian Union of Teachers with a view to continue the deduction of check off dues even though they have withdrawn their membership from the Nigerian Union of Teachers. It is their case that the Claimants engaged the officers of the Nigerian Police to intimidate and harass them for withdrawing their membership, it was against this backdrop that they filed Suit No: NICN/YEN/1m/2017 between Comrade Ebredent Oyenemi & Ors vrs Kalama John Tonpre & Ors. He averred that Academic Staff Union of Secondary Schools has never operated or paraded itself as a registered Trade Union neither did they at anytime harass any member of Nigerian Union of Teachers. He stated that ASUSS is a body in process of registering its association as a Trade Union. That sooner after ASUSS commenced its registration as a Trade Union and same was approved by the Minister of Labour and Productivity the Nigerian Union of Teachers quickly rushed to court to stop the completion of the registration by the Registrar of Trade Union. That ASUSS know its status in all the states of the Federation and has conducted itself in orderly manner but because Nigerian Union of Teachers does not want to stop the deduction of check off dues from the persons that have withdraw that membership from the union, it always attack ASUSS for its failures to care for its members which led to many teachers opted out from the union. That both the Nigerian Union of Teachers and ASUSS are presently in courts both in the Federal High Court, Abuja and Supreme Court of Nigeria over the issue bothering on the registration of ASUSS, even the Federal Ministry of Labour is a suit in the party and the suit filed in National Industrial Court of Nigeria, Enugu Judicial Division by Nigerian Union of Teachers which is similar to this suit, the Federal Ministry of Labour and Productivity is a party and their counsel filed a counter affidavit which is germane to this case.

 

CASE OF THE 2ND DEFENDANT

 

The 2nd Defendant in response to the originating summons filed an eleven paragraphs counter affidavit dated and filed on the 6th day of February, 2020. Attached to the counter affidavit is a written address.

 

By counter affidavit deposed by one Sergeant Nwaigwe Darlington an Administration Officer of the Legal/Prosecution Unit, SCID of the Nigerian Police Force, Bayelsa State Command, Yenagoa. It is the 2nd Defendant’s case that the 2nd Defendant has no interest whatsoever in the subject matter of this suit and therefore ought not to have been joined in this suit as a Defendant. That no paragraph of the supporting affidavit as well as the reliefs sought in this suit made reference to the 2nd Defendant except relief {d} which is not grantable as the 2nd Defendant can only prosecute suspects upon the outcome of investigations by the 2nd Defendant if any. He states that the Nigerian Police Force, Bayelsa State Command under the 2nd Defendant performs its duties in accordance with laid down rules and law and not liable to any of the Claimants claims in terms demonstrated in the originating summons.

 

CLAIMANTS’ ARGUMENT

 

In their written address in support of the originating summons, Claimants raised two issues for determination to wit:

 

i.        Whether by virtue of sections 2 {1} and 5 {6} of the Trade Unions Act, Cap T14, Laws of the Federation of Nigeria 2004, the 1st set of Defendants and persons they represent and lead, can operate or run a parallel Trade Union in any unregistered Trade Union name, including the Academic Staff Union of Secondary Schools {ASUSS}?

 

ii.  Whether by virtue of sections 4 & 6 of the Police Act, Cap P19, Laws of the                      Federation of Nigeria, 2004 the 2nd Defendant has an obligation in law to prosecute                any person {s} including the 1st set of Defendants who acts in breach of section 2             of the Trade Union Act, Cap T14, Laws of the Federation of Nigeria 2004 and                   punishable under section 50 of the same Act?

 

In arguing the first issue for determination, learned counsel submitted that it is trite law that where the sole or principal question in an action is that of construction of a written law or of any instrument made under any written law or of a document or some other question of law, originating summons is an appropriate mode for commencement of such action. He cited the case of Ezeigwe vrs Nwawulu & Ors {2010} 2 NWLR 245 @ 258 para 30. Learned counsel further submitted that the Trade Unions Act makes provisions with respect to the information, registration and organization of trade unions. He referred to the preamble to the Trade Unions Act, Cap T14, LFN 2004. Learned counsel contended that the Nigerian Union of Teachers which the Claimants belong to and are leaders of the Bayelsa State Chapter is registered pursuant to the provisions of the Trade Unions Act to represent the interest of Teachers excluding those in the Universities. Learned counsel argued that the 1st set of Defendants operating under unregistered names including the Academic Staff Union of Secondary Schools {ASUSS} an organization not registered pursuant to the Trade Union Act, have been parading themselves as a Trade Union and have been coercing members of the Nigerian Union of Teachers claiming that they are the recognized body authorized to represent the interest of Secondary Schools Teachers and this is highly prohibited by section 2 {1} of the Trade Union Act. Learned counsel submitted that the provisions of the Trade Unions Act Cap T14 LFN 2004 cited above are clear and unambiguous and must be given their ordinary meaning vis a vis the applicable facts. He cited the case of Ardo vrs Nyako {2014} 10 NWLR pt. 1416, 591 @ 598 Ratio 3. Learned counsel further submitted that the construction of the afore cited relevant sections of the Trade Unions Act Cap T14 LFN 2004 vis a vis the actions of the 1st set of Defendants is that the 1st set of Defendants cannot operate as a Trade Union under any unregistered trade union name including the Academic Staff Union of Secondary Schools {ASUSS} as such will be in breach of the express provisions of the Trade Unions Act and urged this Honourable court to so hold.

 

On the second issue, learned counsel submitted that the Nigeria Police Force is vested with general powers to detect and prevent crimes and also enforce the compliance with all laws and regulations in Nigeria. He referred to sections 4 and 6 of the Police Act, Cap P. 19 Laws of the Federation of Nigeria 2004. Learned counsel argued that as deposed to in the Claimant’s supporting affidavit and evidenced by exhibit E and their claims as contained in exhibit B, the 1st set of Defendants have been parading themselves as a Trade Union, writing letters claiming to be members of a Trade Union and trying to coerce members of the Claimants’ Nigerian Union of Teachers alleging that they are the union that represents the interest of Secondary School Teachers, without first complying with the provisions of the Trade Unions Act with regard to registration. This action is clearly in breach of the provisions of section 2 and punishable under section 50 of the Trade Unions Act. Learned counsel submitted that by the provisions of section 6 of the constitution of the Federal Republic of Nigeria, 1999 as amended, this Honourable court has the inherent powers to compel the 2nd Defendant to perform his duties as contained in sections 4 and 6 of the Police Act, Cap P 19 Laws of the Federation of Nigeria 2004 by prosecuting the 1st set of Defendants for being in breach of the provisions of section 2 of the Trade Unions Act, 2004.

 

In conclusion, learned counsel urged this Honourable court to grant reliefs of the Claimants.

 

1ST SET OF DEFENDANTS’ ARGUMENT

 

Learned counsel to the 1st set of Defendants before arguing his issue for determination responded to the issues for determination raised by the Claimants’ counsel and submitted that the issues couched by the Claimants for determination of this case do not follow from the facts of this case thereby making them academic issues and the courts do not embark on academic questions. Learned counsel contended that the first issue formulated by the Claimants borders on the registration of ASUSS as a Trade Union. The issue whether ASUSS should be allowed to operate or not and whether ASUSS should be registered or not are the subject matter between NUT and ASUSS in Suit No: FHC/ ACJ/CS/31c/08 before Federal High Court Abuja and Supreme Court of Nigeria in SC/433/2014 between Charles O. Faluyi & Anor vrs Nigeria Union of Teachers and Ors. Thus, this suit is a multiplicity of suit which is an abuse of court process. Learned counsel argued that there is no evidence to show that the 1st set of Defendants are threatening members of the Nigerian Union of Teachers. However, from Suit No NICN/YEN/1m/2017 exhibited by the Claimants, it is clear that from the reliefs sought the Claimants have been using the Law Enforcement Agency to threaten the 1st set of Defendants. The Claimants cannot be allowed in law to concoct falsehood and ask the court to put its seal on it and authenticate the falsehood. Learned counsel submitted that the duty of courts is to determine live issues and not to answer academic or imaginary questions. He relied on the case of Ashikh vrs Yale {2012} All FWLR {pt. 625} p. 297 @ 306 para D – F.

 

Learned counsel submitted that the law does not prohibit unregistered union from existing but as a matter of fact the provisions of the Trade Union Act recognise the existence of unregistered union and even provide for deduction of levies to be made from salaries of its members to enable it registered. He referred to section 2 {1} of the Trade Union Act. Learned counsel argued that it is clear that the issue in controversy is the deduction of check off dues from the salaries of Secondary School Teachers who have withdrawn their membership from the Claimants and not whether ASUSS is registered or whether ASUSS can operate or not as none of these issues arose but the illegal deduction of check off dues by the Claimants from none members of Nigeria Union of Teachers and the use of the officers of Nigeria Police to harass the 1st set of Defendants. Learned counsel argued that other things the Claimants are talking about are mere scheme to blindfold this court from seeing the real issues. He relied on the case of Chief of Air Staff vrs Iyen {2005} 6 NWLR {pt. 922} 496 @ 547. Learned counsel submitted that it is clear that the Claimants want to use both the court and officers of Nigeria Police to compel the 1st set of Defendants to remain members of the Nigerian Union of Teachers by filing this type of frivolous suit and false allegations to the Police. Learned counsel further submitted that membership of Trade Union in Nigeria is voluntary and no Trade Union including Nigerian Union of Teachers is allowed to victimize those who have contracted out from the union. He relied on section 12 {4} of the Trade Union Act and section 40 of the constitution of the Federal Republic of Nigeria as amended which provides for freedom of association.

 

It is against this background that the only issue for determination is:

 

            “Whether from the circumstances of this case and in view of section 40 of the       constitution of the Federal Republic of Nigeria 1999 {as amended} section 5 {4} of    the Labour Act, 2004 and section 12 {4} of Trade Union Act the members of the 1st       set of Defendants’ Association can withdraw their membership from the Nigeria         Union of Teachers and demand for the stoppage of check off dues from their             salaries in favour of the Nigeria Union of Teachers”.

 

In arguing the sole issue for determination, learned counsel submitted that by virtue of section 40 of the constitution of the Federal Republic of Nigeria, section 12 {4} of the Trade Union Act and section 5 {3} of the Labour Act, the 1st set of defendants have unfettered and unhindered right to contract out of the Nigeria Union of Teachers and demand for stoppage of check off dues from their salaries in favour of the Nigeria Union of Teachers. He relied on the case of Mr. Eyiaromi Christopher Oladele & Ors vrs the Attorney General Lagos State in Suit No: NICN/LA/102/2013 {unreported} delivered on 6th day of June, 2017 by His Lordship Hon. Justice B.B Kanyip PHD. Learned counsel further submitted that the right to contract out of an association has become a statutory right. He referred to section 5 {3} of the Labour Act and section 12 {4} of the Trade Union Act which equally provide of the right of members of any Trade Union or Association to take exit route without being hindered by anybody or association as being done by the Claimants in the instant case. He placed reliance on the case of Taraba State vrs Nigerian Union of Teachers Taraba State & 5 Ors {2005} 2 NWLR {pt. 568} p. 391 – 592.

 

Learned counsel contended that the right to form or join any association, political party or trade union is exclusively that of the individual citizen and not for the Claimants to use the money they illegally deducted from the 1st set of Defendants to force them to remain members under duress. He relied on the cases of Musa vrs INEC {2002} 11 NWLR {pt. 778} p. 223 @ 312 and Nkpa vrs Nkume {2001} 6 NWLR {pt. 710} p. 543.  Learned counsel urged this Honourable court to resolve this issue in favour of the 1st set of Defendants and hold that the members of ASUSS have the constitutional right to associate and to contract out of Nigeria Union of Teachers.

 

On the case of Comrade Ebreedeni Oyeneni & ors vrs Kalama John Tonpre & ors relied by the Claimants, learned counsel submitted that the case was struck out on the ground that ASUSS is not a juristic person not because it is an illegal body. Learned counsel urged this Honourable court to rely on the said authority and strike out this suit as ASUSS cannot sue and be sued and the reliefs sought in this case is against ASUSS. The Claimants in their reliefs sought to make non parties to the suit to be bound by the outcome of this suit. The law is clear that a court lack jurisdiction to make an order against persons who are not part of the suit.

 

In conclusion, learned counsel urged this Honourable court to dismiss this case with substantial cost as same is vague, frivolous and vexatious.

 

CLAIMANTS’ REPLY AFFIDAVIT

 

In response to the 1st set of Defendant Counter Affidavit, the Claimants filed a seven paragraphs reply affidavit dated and filed on the 4th day of February, 2020. Attached to the reply affidavit is a written address.

 

In the written address, learned counsel argued that the submission of the 1st set of Defendants that the Claimants’ case is a mere academic exercise that is not supported by facts does not hold water because it is the examination of the reliefs sought, the grounds upon which they are sought and the facts relied upon that will determine the true state of the case and not the submissions of counsel to any of the Defendants. He cited the case of Sea Trucks Ltd vrs Amgboro {2001} 5 NSCQR 120 @ 122 Ratio 2. He further submitted that it is the Claimants’ processes and not the Defendants’ arguments that is looked at to determine the presence of cause of action which arises from a combination of the Defendants’ wrongful act. He cited the case of Bakare vrs NRC {2007} 32 NSCQR 176 @ Ratio 3. Learned counsel submitted that the Supreme Court held in Atiku Abubakar vrs Yar’adua {2008} 33 NSCQR pt 11, 650 @ 653 – 654 that an academic matter is one raised for the purpose of intellectual argument which does not affect live issues. Learned counsel argued that the 1st set of Defendants did not deny paragraph 4 of the Claimants’ supporting affidavit which states that the 1st set of Defendants constituted an executive committee to be carrying out trade union related activities and this is the core of the matter. This is where the cause of action arose which glaringly shows that this matter is not an academic exercise.

 

In response to the 1st set of Defendants submission that section 2 {11} of the Trade Union Act Cap T14 recognises the existence of an unregistered trade union. Learned counsel submitted that the provision thereof only allows for the taking of steps to register and to collect dues for registration purposes. The case against the 1st set of Defendants is their insistence on representing the interest of Secondary School Teachers as a trade union in the guise of an association even when they are not registered as a trade union. Learned counsel further submitted that the reference to section 12 {4} of the Trade Union Act and section 40 of the 1999 constitution of the FRN as amended on freedom of association are clearly irrelevant to the issue at hand as the interpretation sought by the Claimants is not a challenge of right of association but a challenge of right to operate as a trade union when same is not registered.  The authorities cited thereto by counsel to the 1st set of Defendants are thus irrelevant and should be discountenanced.

 

In conclusion, learned counsel urged this Honourable court to grant the Claimants the reliefs sought.

 

2ND DEFENDANT’S COUNTER AFFIDAVIT

 

In response to the originating summons filed by the Claimants, the 2nd set of Defendant filed an eleven paragraphs counter affidavit dated and filed on the 6th day of February, 2020. Attached to the counter affidavit is a written address. In the written address learned counsel formulated two issues for determination to wit:

 

a.       Whether the originating summons as well as the supporting affidavit in this suit discloses any reasonable cause of action against the 2nd Defendant to warrant the joining o the 2nd Defendant in this suit.

 

b.      Whether the 2nd Defendant can validly institute criminal proceeding against any of the 1st set of Defendant or any person{s} without a valid complaint and/or investigation and finding.

 

In arguing the first issue for determination, learned counsel answered in the negative and submitted that it is trite law that in determination whether a cause of action is disclosed against any Defendant, the court should only consider the writ of summons and the statement of claim filed in that suit. He relied on the cases of Seven Up Bottling Company vrs Abiola & Sons {2001}13 NWLR {part 730} pg 469 @ 495 paras C – E. Learned counsel contended that in this instant case commenced by the originating summon, what the court will consider whether there is reasonable cause of action against the 2nd Defendant is the supporting affidavit. He relied on Order 13 Rule 15 and Order 13 Rule 6 {2} of the National Industrial Court Rules 2017. Learned counsel submitted that these provisions of the rules of this Honourable court empowers the court to strike out the name of any Defendant once it is shown from the complaint and statement of facts that no reasonable cause of action is disclosed against such Defendant. Learned counsel argued that the Claimants did not at any point in their statement of facts state that the 2nd Defendant the Commissioner of Police Bayelsa State was in any way involved on the issue affecting their union and as clearly stated in their counter affidavit that the 2nd Defendant does not have any interest whatsoever in this suit to warrant the joining of the 2nd Defendant as a party in this suit. Learned counsel submitted that in effect that the 2nd Defendant was wrongly joined in this action, learned counsel urged this Honourable court to strike out the name of the 2nd Defendant from this suit for misjoiner. He cited the case of Tigris International Corporation vrs Ege Gipping Limited {1999} 8 NWLR {part 608} page 901.

 

On the second issue, whether the 2nd Defendant can validly institute criminal proceeding against any of the 1st set of Defendants or any person {s} without a valid complaint and/or investigation and findings. Learned counsel argued that assuming without conceding that His lordship holds that the instant suit discloses any cause of action against the 2nd Defendant,  learned counsel submitted that the answer to the issue two formulated for determination is in the negative, and thus this Honourable court cannot effectively grant relief {d} sought by the Claimants in this suit. Learned counsel submitted that administration of justice in criminal case starts with the complaint made by the complainant at the police station to officers whose duty is to hear and investigate such complaint. He referred to the case of Sagbanmu vrs C.O.P {1946 – 89} WACA 3256 @ 357. Learned counsel contend that in the instant case no complaint was received from the Claimants or anyone, neither is there an investigation by the officers of the Police Force under the command of the 2nd Defendant pointing to the commission of a crime by anyone to which the 2nd Defendant should be compelled by this Honourable court to prosecute anyone. Learned counsel submits that the administration of Criminal Act, 2015 requires that the Police carry out its duty of receiving complaint, investigation and prosecution only on what the law stipulates as offence. He cited the case of State vrs Uzor {1956} N. M. L. R. 208 @ 215.

 

In conclusion, learned counsel urged this Honourable court to dismiss this suit in its entirety for lacking in merit, frivolous and abuse of court process with substantial cost of N500, 000. 00 {Five Hundred Thousand Naira} awarded against the Claimants and in favour of the 2nd Defendant.

 

COURT’S DECISION

 

 I have carefully examined the processes filed by both parties, I have duly evaluated the averments contained in both the Supporting and Opposing Affidavits together with the exhibits. But before I go further, let me start with the Notice of Preliminary Objection filed by the 1st set of Defendants challenging the jurisdiction of this court.

 

The Defendants/Applicants prayed to this court to strike out this suit for lack of jurisdiction. The Defendants/Applicants raised so many issues of law. Let me take the issues in seriatim.

 

Firstly, that 2nd set of Defendant is a Federal Government Agency and it is only the Federal High Court that is vested with the jurisdiction to entertain this matter. This is a total misconception of the law. What indeed actually determines the jurisdiction of the court? The answer to this question is given in Anyike Stores vrs Adebogun {2008} 10 NWLR {pt. 1076} 612 at 630 paras F – H. Note that courts are creatures of statute and it is the statute that created a particular court that will also confer on it, its jurisdiction. See Okulate vrs Awosanya {2001} 1 SC pg 107.

 

Having said these, section 254 {c} {1} of the Constitution of the Federal Republic of Nigeria 1999 {as amended} provides thus:

 

            “Notwithstanding the provisions of sections 251, 257, 272 and anything    contained        in this constitution and in addition to such jurisdiction as may be conferred         upon it by an act of the National Assembly, the National Industrial Court shall          have and exercise jurisdiction to the exclusion of any other court in civil      causes and matters:

 

{a}       Relating to or connected with any labour, employment, trade unions … and         matters incidental thereto or connected therewith;

 

{b}       Relating to or connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, … or any other enactment replacing the acts or          laws; …”

From the originating processes filed one can see that the Claimants approached this court for the interpretation and enforcement of the provisions of the Trade Unions Act. And by section 254 {c} {1} of the Constitution one can see that its within the exclusive preserve of this court since what determines jurisdiction of a court is the nature of the plaintiff’s claim before the court. See the dictum of Onnoghen JSC in A.S.T.C vrs Quorum Consortium Ltd {2009} 9 NWLR {Pt. 1145} at pg 1. Therefore, not minding the parties in this matter this court is the best avenue to adjudicate this matter. I so hold.

 

On the second issue that the suit is an abuse of the process of this court, that the subject matter in Suit No: FHC/ABJ/CS/31c/2008 and Appeal No. SC/433/2014 are the same with this suit, I wish to state that I have carefully examined the processes {ext. C} and I came to the conclusion that the parties are not the same and likewise the reliefs sought. Therefore, this suit is not an abuse of the processes of this court. The latter borders on the interpretation of some provisions of the Trade Unions Act which borders on operating parallel Trade Union, the former borders on the issue of registering another Trade Union intended to cater for Teachers after there was an already existing registered trade union operating or catering on that aspect. Therefore, same cannot be an abuse of the process of this court. I so hold.

 

On the third issue that the Claimants lack the locus standi to file this suit. Locus standi or standing to sue is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. A person is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed. See Inakoju vrs Adeleke {2007} 4 NWLR {pt. 1025} 423 SC. And the burden is on the plaintiff to prove that he has the locus standi to commence an action and failure to discharge the burden, the action must fail. See Contract Resources {Nig} Ltd vrs Wende {1998} 5 NWLR {pt. 549} 5 NWLR {pt. 549} pg 243.

 

Having said all these, the 1st and 2nd Claimants instituted this action for themselves and on behalf of the members of the Nigerian Union of Teachers, Bayelsa State Chapter. Supposedly, the Claimants are all members of the NUT. While I agree that the Claimants as members of NUT can institute this action even without joining NUT as a party in this suit, but before doing that the Claimants must adduce evidence to actually show that they are registered members of the NUT {Bayelsa State Chapter} before they can have the locus standi to institute this action. This the claimants can do by either attaching or annexing their identification cards or receipts evidencing payment of check off dues which the Claimants failed to do. In view of that its my ardent belief that the Claimants had failed to show that they have a legal right to institute this action and as such this action must fail. I so hold.

 

But assuming that the Court of Appeal in its superior wisdom felt otherwise, I will go ahead and treat issues raised by parties in the originating summon. The Claimants filed this action seeking for this court to interpret the provisions of sections 2{1} and 5 {6} of the Trade Unions Act, Cap T14, LFN 2004. The Claimants are contending that the 1st set of Defendants cannot operate or run a parallel unregistered Trade Union including the Academic Staff of Secondary Schools {ASSUS}. And that the 1st set of Defendants having violated section 2 of the Trade Unions Act, they want this court to compel the 2nd set of Defendant to arrest and prosecute them.

 

In other to determine this matter I formulated a lone issue for determination.

 

            Whether from the processes filed by the Claimants, whether the Claimants are     entitled to all or some of the reliefs sought.

 

There is no any doubt that by the combined provisions of section 2 {1} and 5 {6} of the Trade Unions Act, before any Trade Union can act and operate as one, same must be registered and a certificate of registration must be issued. And section 50 of the Act criminalizes the operation of any Trade Union without registration.

 

However, the Third Schedule of the Trade Unions Act cannot be interpreted or read in isolation without considering the entire content of the Act. Moreso the provisions of section 12 {4} specifically clarified this issue and provided thus, that membership of any Trade Union is voluntary rather than compulsory and no employee can be forced to becoming a member of a Trade Union. The aforementioned provision of the trade unions act is reproduced hereunder for ease of reference:

 

            Notwithstanding anything to the contrary in this act membership of a Trade         Union by employees shall be voluntary and no employee shall be forced to          join any Trade Union or be victimized for refusing to join or remain a member.

 

 

It is submitted that the provision of the Trade Unions Act is also consistent and in conformity with the provision of section 40 of the Constitution of the Federal Republic of Nigeria 1999 {as amended} which provides thus:

 

            “Every person shall be entitled to assemble freely and associate with other persons,            and in particular he may form or belong to any Political Party, Trade Union or any            other association for the protection of his interests

 

From the above provision of the Constitution it is beyond debate that the right of workers or persons to form or join a Trade Union is guaranteed by the Constitution of the Federal Republic of Nigeria.

 

Furthermore, the supremacy of the Constitution of the Federal Republic of Nigeria cannot be over emphasized. Hence, in view of the express provisions of section 40 of the Constitution of the Federal Republic of Nigeria 1999 {as amended} which guarantees freedom of association, it is unequivocally clear that the membership of any association or Trade Union such as the Nigeria Union of Teachers {Bayelsa State Chapter} is voluntary and the existence of such Trade Union does not preclude the formation of other body be it a Trade Union or an association for the purpose of protecting the interest of its members.

 

In view of the above analysis, it is therefore submitted that the members of ASUSS are not bound to be members of the Nigeria Union of Teachers {Bayelsa State Chapter} they thus, acted within their constitutionally guaranteed right and within the ambits of the law when they formed the Academic Staff Union of Secondary Schools in other to cater for the welfare and interest of their members, though not a Trade Union.

 

It is worthy to note that just like other Trade Union registered under the Trade Unions Act the Nigerian Union of Teachers is regulated by and subject to the Trade Unions Act Cap T14 LFN, 2004, Labour Act Cap l1 LFN 2004 and Pension Reform Act 2014 etc. There is nothing in this laws or any other law that empowers the Nigeria Union of Teachers to regulate other associations or Trade Unions with similar objectives. The Nigeria Union of Teachers therefore, has no power to accredit or issue waiver to ASUSS or any other association to enable them operate.

 

The issue of right and procedure of collection of check-off dues by a Trade Union is set out in section 5 {3} and {4} of the Labour Act Cap L1 LFN, 2004. For ease of reference same is reproduced as follows:

           

            “5 {3} Upon the registration and recognition of any of the Trade Unions specified in         Part A of Schedule 3 to the Trade Unions Act, the employee shall

 

            {a}      Make deductions from the wages of all workers eligible to be members of the                    union so required; and

 

            {b}      Pay any sum so deducted to the Union.

 

            But a worker may contract out of the system, in writing and when he has done so, no        deductions shall be made from his wages in respect of contributions mentioned in        paragraph {a} of this section.

 

            {4}      No deductions shall be made from the wages and salaries of persons who are         eligible members of any of the Trade Unions specified in Part B of the Schedule 3 of        the Trade Union Act except if the person concerned has accepted, in writing to make      voluntary contributions to the Trade Union.

 

It is opined that the position of the law in respect of deductions of wages of workers under the Labour Act, specifically section 5 {4} of the Labour Act is clear. In this regard, it states that the consent of a person, who is eligible as a member of a Trade Union specified in Part B of Schedule 3 to the Trade Unions Act, is a condition precedent for the deduction from his wages and salaries of any sums for the purpose of remitting same to the Trade Union.

 

In other words a worker or in this circumstance each individual has to accept or consent in writing before deductions can be made from his/her wages and salaries assuming but not conceding that he/she is a member of the Nigeria Union of Teachers {Bayelsa State Chapter}. The implication of the provisions of section 5 {4} of the Labour Act is that there must be voluntariness of a member or an eligible member to contribution to the Trade Union, the absence of which invalidates and deduction from his/her wages.

 

One major question for consideration is, whether there is any document to show that members of ASUSS consented in writing, that their wages and salaries be deducted by the Nigerian Union of Teachers {Bayelsa State Chapter}? Upon a careful perusal of the exhibits enclosed herein, there is no document emanating from ASUSS evidencing consent by each member of ASUSS to the deduction of a percentage of their wages as check – off dues in favour of the Nigeria Union of Teachers Bayelsa State Chapter.

 

It is submitted that the law imposes a condition precedent to the deduction of any sums of money from the wages and salaries of the employees including Teachers. That condition has to be satisfied before the NUT can validly act by deducting the check-off dues from the members of ASUSS.

 

Assuming but not conceding that there is anything to show that members of ASUSS are recognized members of the Nigeria Union of Teachers, Bayelsa Sate Chapter {NUT}, each individual member is still at liberty to validly opt out of the check –off system in line with the provisions of section 5{3} of the Labour Act and upon doing so, no deductions shall be made out of his/her wages.

 

Unfortunately, there is nothing to show that the members of ASUSS are members of the NUT and had individually consented in writing that the said check off dues be deducted from their wages by the NUT. Any deductions made in this regard without having first obtained their consent becomes invalid. Infact Exhibit A had attested to the fact that some members of ASUSS had opted out.

 

See Governing Council of NTI, Kaduna & Anor vrs NASU {2018} LPELR – 44557 {CA} where the Court of Appeal held the issue is not whether the appellants are bound to recognize the respondent. The issue is that before any deduction can be made from the wages and salaries of the employees, they must consent in writing.

 

In view of the Court of Appeal’s decision, the issue therefore is not whether the Academic Staff Union of Secondary Schools is recognized/registered or not. The issue is that before any deduction can be made from the members of ASUSS by the Nigeria Union of Teachers {Bayelsa State Chapter}, each of the members of ASUSS must consent in writing otherwise any deductions from the wages of the ASUSS members by the NUT without his/her consent is invalid.

 

Moreso, the fact that ASUSS is not duly registered as a Trade Union does not prevent or preclude it from collecting dues or subscription from its members which may be necessary for the purpose of getting the Association registered as a Trade Union.

 

The above position of the law is evidenced in the Proviso to section 2 {1} of the Trade Unions Act and for ease of reference same is hereby reproduced as follows:

 

            “{1} A Trade Union shall not perform any act in furtherance of the purposes for    which it has been formed unless it has been registered under this Act:

           

            Provided that nothing in this subsection shall prevent a Trade Union from taking any         steps {including the collection of subscriptions or dues} which may be necessary for     the purpose of getting the union registered {underlining for emphasis}.

 

It is also pertinent to note that the above provision of section 2 {1} of the Trade Unions Act cited above is without prejudice to the constitutional right to freely assemble and form an association for the purpose of protecting their interest. In this vain, ASUSS Bayelsa State are not mandated to metamorphose into a Trade Union by registering as a Trade Union under the Trade Unions Act. This is because the supremacy of the Constitution of the Federal Republic of Nigeria 1999 {as amended} cannot be over emphasized. The Constitutionally guaranteed right under section 40 to a person to assemble freely and associate with other person and in particular to form or belong to any political party, trade union or any other association for the protection of their interests, implies that individuals are allowed to form an Association for the protection of their interest, it is immaterial whether or not the association so formed is registered as a Trade Union or not. Thus, an Association registered under the Companies and Allied Matters Act, Cap C20 LFN, 2004 is valid and can freely operate for the purpose of protecting the interest of its members as enshrined under the Constitution, which includes the right of collection of dues from its members who have freely formed and /or joined the said Association for the purpose of protecting their interest.

 

In view of the foregoing analysis of both statutory and case law authority and upon a careful perusal of the exhibits presented by the parties, it is my considered view that:

 

i.                    The right of workers/or persons to form or join a Trade Union is guaranteed by the Constitution of the Federal Republic of Nigeria specifically section 40 of the Constitution of the Federal Republic of Nigeria 1999 {as amended}. Therefore, ASUSS acted within their right in forming the Association to care for the welfare and interest of their members eventhough not as a trade union.

 

ii.                  Going by the provisions of section 12 {4}of the Trade Unions Act, Cap T14, LFN, 2004, it is unequivocally clear that membership of a Trade Union is voluntary and no person or individual shall be forced to join any Trade Union or be victimized for refusing to join or remain a member of a Trade Union.

 

iii.                In accordance with the provision of section 5 {4} of the Labour Act, Cap L1, LFN, 2004 the deduction of the check off dues by any Trade Union, from the wages and salaries of any employee is not mandatory but voluntary, based on agreement or consent of the employee.

 

iv.                There is no evidence of the fact that members of ASUSS are members of the Nigeria Union of Teachers {Bayelsa State Chapter} and no document to show that NUT obtained the consent of each member of ASUSS to the deduction of a percentage as check-off dues. Any deduction of check off dues and payment of same to the Nigeria Union of Teachers {Bayelsa State Chapter} without consent from the person whose wage is to be deducted is a nullity as same lacks validity for failure to fulfil the condition precedent prescribed by the law.

 

 

v.                  The Nigeria Union of Teachers {Bayelsa State Chapter} has no power to grant waiver, accredit or regulate ASUSS {Bayelsa State} or any other association.

 

vi.                By the express provision of section 2 {1} {the Proviso} an Association is not precluded from collecting dues or subscription from its members provided that same is necessary for the purpose of getting the Association registered as a Trade Union. Thus, ASUSS Bayelsa State may collect dues deducted from their members, as may be necessary for the purpose of getting registered as a Trade Union.

 

vii.              The Constitutionally guaranteed right under section 40 to a person to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or any other association for the protection of his interests, implies that individuals are allowed to form an Association for the protection of their interest, it is immaterial whether or not the Association so formed is registered as a Trade Union or not.

 

This leads to the inescapable conclusion that an Association registered under the Companies and Allied Matters Act, Cap C20 LFN, 2004 is valid and can freely operate for the purpose of protecting the interest of its members as enshrined under the Constitution, which includes the right of collection of dues from its members who have freely formed and/or joined the said Association for the purpose of protecting their interest.

 

In view of the foregoing facts as enumerated above and by paragraph 10 of the Defendants’ Counter Affidavit in opposition to the Claimants’ affidavit in support of the Originating Summons filed on the 2nd January, 2020 the 1st set of Defendants had unequivocally denied operating as a Trade Union a fact which the Claimants had failed to controvert in their Further and Better Affidavit which I will deemed that as admission pursuant to section 123 of the Evidence Act, Its my ardent belief that the Claimants are not entitled to any reliefs sought.

 

Therefore the matter is hereby dismissed. Parties are to bear their respective cost.

 

Judgment is hereby entered accordingly.

 

 

 

__________________________________________

HON. JUSTICE BASHAR A. ALKALI

 

PRESIDING JUDGE

 

YENAGOA DIVISION

 

NATIONAL INDUSTRIAL COURT OF NIGERIA