Senior Staff Association of Statutory Corporations & Government Owned Companies -VS- Federal Housing Authority

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP, HON. JUSTICE R.B. HAASTRUP

DATE: MAY 20, 2020 SUIT NO. NICN/ABJ/103/2019

BETWEEN:

Senior Staff Association of Statutory

Corporations and Government Owned Companies………. Claimant

(SSACGOC)

AND

Federal Housing Authority…………………………………………. Defendant

REPRESENTATION:

Tope Ajayi for claimant

D.T Najime for defendant

Aduojo Abah for Applicant (Party seeking to be joined)

JUDGMENT

The claimant’s originating summons application is dated and filed 26^th day of April, 2019, seeking the determination of the following questions:

Whether by the provisions of the Constitution of the Senior Staff Association of Statutory Corporation and Government Owned Companies, Rule 3(i), and Section 4 (2) of the Federal Housing Act Cap F14 LFN 2004, the claimant is the right union to organize the senior staff of the Federal Housing Authority.

The claimant is seeking for the following reliefs:

1. A declaration that the claimant is the rightful labour union to organize the senior staff of Federal Housing Authority.

2. An order perpetually restraining the Federal Housing Authority, its officers, staff, agent or privies from stopping the claimant from exercising its jurisdiction within the bounds of the law.

The claimant has filed a thirteen (13) paragraph affidavit and a written address in support of originating summons application, and the affidavit is deposed to by one Ayo Olorunfemi, Secretary General to the claimant in this action; and annexed to the affidavit are Exhibits 1A (Certificate of Registration), 1B (Gazette of FRN. No.6. vol. 65), Exhibit 2(Membership Forms), Exhibit 3(Letter from FHA), Exhibit 4A (Constitution of claimant, Exhibit 4b (Act creating defendant) Exhibit 5(CTC Judgment of this Court) and Exhibit 6(Pay slip of one of the claimant’s members). The claimant relied on all the Exhibits as documentary evidence before the Court, and adopted written address filed along with the originating summons application as its oral argument in support of application.

This matter was in the first instance adjourned for judgment to the 12^th day of December, 2019, after the adoption of addresses by counsel, which was on the 12^th day of November, 2019. However, the Court was unable to deliver judgment on the scheduled date, and further adjourned to the 20^th day of February, 2020, when an application for joinder was filed before the Court on 9^th day of January, 2020, when this Court had initially fixed matter for judgment. With the leave of Court and upon agreement of counsels, the applicant was allowed to regularize its processes to enable the claimant counsel respond to the application, since claimant’s counsel had informed Court that he had joined issues with the applicant on the application for joinder. The defendant did not file any process regarding the application for joinder.

It is however pertinent to first of all deal with the pending application, and rule on same,and where necessary, the Court will not hesitate to proceed accordingly with the substantive suit. In any event, by the Rules of this Court, every motion filed before the Court, shall be set down and ruled upon before the final judgment is delivered in the matter. See Order 17 Rules 10 and 11, Order 18 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. In this wise, this Court shall proceed accordingly.

APPLICATION FOR JOINDER

The Applicant/Party seeking to be joined in this suit, filed its application on 21^st day of February, 2020, which is dated 20^th day of February, 2020, and the applicant is praying the Court for the following:

1. An order joining Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) as the 2^nd defendant in this suit.

2. An order granting leave to the applicant to file counter affidavit and written address to the claimant’s Originating Summons application dated 26^th day of April, 2019 in this suit.

3. An order deeming the counter affidavit and written address already filed and served as properly filed and served.

4. And for such order or other orders that this Honourable Court may deem fit

to make in the circumstances of this case.

The grounds of the application are as follows:

1. The applicant and claimant/respondent are duly recognized trade unions in the Federal Housing Authority (Defendant) unionizing both senior and junior workers who voluntarily subscribed to be their members.

2. The subject matter of this suit touches on the quest of the claimant to exclusive jurisdiction to unionize senior staff in Federal Housing Authority who are mostly members of the applicant.

3. The claimant has constituted this suit without joining the applicant who will be adversely affected if the reliefs in the originating summons are granted by this Honourable Court.

4. The joinder of the applicant in this suit is necessary to effectually, effectively and completely resolve the issues nominated for determination in this suit.

5. The joinder of the applicant as a defendant will afford it fair hearing in the determination of issues that will affect the applicant in this suit.

6. Leave of this Honourable Court is required to file counter affidavit and written address in opposition to the originating summons dated 26^th day of April, 2019 having been heard and adjourned for judgment.

The application for joinder is brought pursuant to Order 13 Rules 14 (3) and 15(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, Section 36(1) Constitution of the Federal Republic of Nigeria 1999(As Amended), and under the inherent jurisdiction of Court. The application is supported by sixteen (16) paragraphs affidavit, deposed to by one Comrade Shaibu Siyaka, branch Chairman of the applicant in the Federal Housing Authority(Defendant); and counter affidavit of applicant in opposition to originating summons ofclaimant, annexed to affidavit in support of the application, and written address was also filed alongside, dated 20^th day of February, 2020. The sole issue for determination, as contained in the written address, is stated thus:

“Whether having regards to the circumstances of this case, the Applicant is entitled to the prayers endorsed on the Motion Paper?

It is the submission of counsel that the applicant/party seeking to be joined as well as claimant/respondent are already recognized trade unions in the defendant, and the case of the claimant as set out in the originating summons application is not about recognition of the claimant as a trade union in the defendant. That the case is a surreptitious attempt to move this Honourable Court to determine the claimant as the trade union with the exclusive rights to unionize the senior staff of the defendant contrary to the inherent rights of workers to choose a trade union that best protect their interest in the defendant.

Counsel submitted that the claimant ought to have joined the applicant at the onset but deliberately omitted to do so, and equally concealed the facts and issues set before this Honourable Court for determination; and assuming the claimant succeeds in this suit, it will compel certain grade levels of members of the applicant to become automatic members of the claimant. That it is in the interest of justice to consider the application for joinder of the applicant, to afford it the opportunity to be heard when issues affecting their members and the Union in the defendant is to be determined, and the claimant and defendant will not in any way be prejudiced as justice will be served on all parties in the circumstance. It is the further argument of counsel that the applicant herein is a necessary party to be joined in this suit, for the effectual and complete determination of the rights of parties in the suit as the applicant will be directly affected by whatever outcome of this suit, relying on NDP vs. INEC (2012) LPELR – 19722 (SC) Pp. 38-39 Paras. E-A; Panalpina World Transport (Nig) Ltd vs. J.B. Olandeen International & Ors (2010) LPELR – 2902 (SC) Pp. 28-29, Paras. F-A; Order 13 Rule 14 (3) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

Counsel reiterate that the joinder of the applicant will not prejudice the respondents to this application in any way but further the cause of justice in this Honourable Court. He admitted that the application is coming very late, as pleadings have been closed, arguments taken and matter already scheduled for judgment. That the applicant had no knowledge of this suit until the 12^th day of December, 2019 when the matter was called up for judgment, and the applicant immediately swung into action by filing this application. That the applicant has not been indolent and the Court ought to exercise its discretion in favour of the applicant. And where Court finds merit in the application, counsel urged the Court to exercise its discretion by granting leave to the applicant to file appropriate processes in defence of the suit in the interest of justice.

In response to the motion for joinder, the claimant/respondent filed an eleven (11) paragraph counter affidavit dated and filed 25^th day of February, 2020, and deposed to by one Elijah Williams, with a written address in support. The written address in support of application has a sole issue for determination, thus:

“Whether the motion dated 20^th February, 2020 for joinder is otherwise frivolous, scandalous and an abuse of Court process.”

Counsel answered the above question in the affirmative. He referred the Court to Exhibit A annexed to claimant’s counter affidavit; that it is the judgement of this Court in Suit No. NICN/ABJ/125/2019, delivered 17^th December, 2019,with the parties in the judgment as the present applicant and the claimant; and in that judgement, His Lordship, Per O.Y. Anuwe J. determined the status of both applicant and the claimant, and the judgement has not been set aside by the Court of Appeal. It is the submission of counsel that the attempt by the applicant to have same issue litigated again, by same parties offends the principle of law, as expressed in the maxim “Estoppel per rem judicatam”.

In aid of his argument on the above issue, counsel relied on the case of Momoh vs. Adedoyin (2018) 12 NWLR @ Page 351, where the court in that case laid down the conditions for the application of the rule of Res Judicata, as follows:

a. The parties in the previous and present action are the same;

b. The subject matter in the two actions are the same;

c. The issues in the two matters are the same and

d. The decision in the previous action must be final and by a Court of competent jurisdiction.

He submitted that upon a cursory look at the judgement in Suit No. NICN/ABJ/125/2019, it shows that all the conditions stated by the Court of Appeal in Momoh vs. Adedoyin (Supra) for the proof of Res Judicata are all present in this case, urging the Court to so hold. Counsel further submitted that where the plea of res judicata succeeds, a Court of Law is stripped of the requisite jurisdiction to determine the matter in which it is raised, relying on Momoh vs. Adedoyin (Supra). Counsel submitted that by the decision of the Supreme Court in Yanaty Petrochemical Ltd vs. EFCC (2018) 5 NWLR, wherein the Court validated the decision of the Court of Appeal in Momoh vs. Adedoyin (Supra), this Court is equally stripped of the jurisdiction to hear and determine the issue of jurisdiction between the applicant and the claimant, as this Court is already functus officio.

He further submitted that the applicant has by their action sought to arrest the judgement of this Court fixed for the 12^th day of February 2020, and the Court has held in Ardo vs. INEC (2017) 13 NWLR Para H, that arrest of judgment is alien to Nigerian rules of Court, it connotes brigandage and lawlessness which are things abhorred by law. Counsel then prayed the Court to dismiss the application for joinder, for being an abuse of Court process and for offending also the principle of res judicata, urging the Court to proceed and award cost of N200, 000.00(Two Hundred Thousand Naira only) as cost in favour of the claimant.

The applicant/party seeking to be joined, filed a further affidavit of eleven (11) paragraphs and reply on points of law, dated and filed 26^th day of February, 2020. The further affidavit is deposed to by one Comrade Shaibu Siyaka, branch Chairman of the applicant in the Federal Housing Authority(defendant) in this suit.

In his written address on point of law, counsel argued that the case of Momoh vs. Adedoyin (Supra) relied upon by respondent is inapplicable to the instant case, and argument thereof misconceived. That the application for joinder has not been made before any Court, neither has same been determined by any Court. The application is therefore not caught up by the principle of res judicata, urging the Court to discountenance the arguments of the claimant/respondent. More so, that the decision of His Lordship, O.Y. Anuwe in the case referred to by claimant/respondent, is not binding on this Honourable Court but persuasive in deserving circumstance, as it is a decision of Court of coordinate jurisdiction and not a decision of the Court of Appeal or Supreme Court. Again, the decision referred is already subject of Appeal before the Court of Appeal, Abuja in Appeal No. CA/A/14/2020, and the present application has nothing to do with decision referred to.

Counsel further submitted that it is a misconception for respondent to argue that this application is brought to arrest the judgment of this Court, as the applicant ought to have been joined in this suit from the onset before the determination of its rights, and the applicant is only praying this Court that it should be heard before its rights are determined. Counsel urged the Court to discountenance all arguments of respondent in its entirety as same do not apply to the facts and circumstances of this case. He further urged the Court to grant the prayers of the applicant as set out in the motion on notice dated 20^th February, 2020, as the granting of the application will not prejudice the respondent in any way but serve the interest of justice.

COURT’S DECISION ON MOTION FOR JOINDER

I read the questions for determination, reliefs sought by claimant and the facts contained in the affidavit in support of the originating summons application. I have equally perused Exhibit A (judgement of this Court in Suit No. NICN/ABJ/125/2019, delivered 17^th December, 2019, Per O.Y. Anuwe, annexed to claimant’s counter affidavit, in opposition to the application for joinder. I observed from that judgment that the applicant in this application was the defendant (AUPCTRE) in that case, while the claimant/respondent in this case was the 1^st claimant in that case. The crucial issues for the Court to determine in that case, were: (i) whether the defendant (Applicant in this application) is of senior staff cadre in the Federal/States statutory corporation and Government owned companies having regard to its prescribed jurisdiction vide the Trade Union Act.

(ii) And if answered in the negative, whether defendant can unionise members of the claimant/applicant (claimant/respondent in this application), i.e. the senior staff of the Federal/States statutory corporation and Government owned companies.

I have taken a cursory look at the applicant’s proposed counter affidavit opposing the originating summons application of the claimant, and the issues formulated therein for determination of the Court. I have also noted ground 2 in the application for joinder, and paragraphs 5 & 6 of the affidavit in support. It is clear from all these that the applicant is seeking to be joined in this suit, such that the Court can determine the issues regarding unionizing the senior staff of defendant (Federal Housing Authority). In other words, whether it is the applicant or respondent which has the right to unionize the senior staff of the Federal Housing Authority (defendant in this suit), which bothers on jurisdiction. See particularly paragraph 4.2 of written address of applicant in support of application for joinder, and it states thus:

“………the case of the claimant as set out in the Originating Summons is not about recognition of the claimant as trade union in the defendant. The case is surreptitious attempt to move this Honourable Court to determine the claimant as a Trade Union with exclusive rights to unionise the senior staff of the defendant contrary to the inherent rights of workers to choose a trade union that best protect their interest in the defendant.”

Having read extensively the judgement of my learned brother, Hon. Justice O.Y. Anuwe, in Suit No. NICN/ABJ/125/2019, delivered 17^th December, 2019,I can safely conclude that the same issues which were already settled or resolved in that case, are the same issues which the applicant in this application is now bringing before the Court for determination. Again, the parties in that case are the same parties in this case with same subject matter also. For purpose of precision, an excerpt of the judgment of the Court in the aforementioned case is hereby reproduced, particularly in paragraphs 3 of page 6, and 1 of page 10.

Paragraph 3 page 6: “………………Despite the clear demarcations in the jurisdiction of the 1^st claimant and the defendant, the defendant has continued its act of unionizing or attempting to unionize members of the claimant in Standard Organization of Nigeria(SON), Corporate Affairs Commission (CAC), Federal/States Water Corporation and others. It is for these reasons the claimants have brought this action for it to be determined whether the defendant can unionize members of the 1^st claimant.” (Emphasis Mine).

Paragraph 1 of page10: “………The issue raised by the claimants in this suit is with respect to the category of workers in Public or Statutory Corporations who can be members of either union. Put in another way, what category of workers can either union unionize?”(Emphasis Mine).

I must say that I have no difficulty in agreeing with submissions of respondent’s counsel to the effect that this Court is functus officio, and applicant herein cannot re-litigate on issue regarding category of workers in the defendant that can be unionized by the applicant or claimant. It is clear to me as crystal that the applicant’s motion for joinder is an offshoot to the judgment in Suit No. NICN/ABJ/125/2019, delivered 17^th December, 2019, by His Lordship, Hon. Justice O.Y. Anuwe. Therefore, it is not far-fetched to conclude that the motion for joinder in question was caught in the web of estoppel per rem judicatam, and I so hold.

Further argument of applicant in his reply address on point of law, is that the application for joinder has not been made or determined by any Court, and it is therefore not caught up by the principle of res judicata. His further submission is that the decision referred (Exhibit A) annexed to counter affidavit of respondent, is already subject of Appeal before the Court of Appeal, Abuja in Appeal No. CA/A/14/2020, and the present application has nothing to do with the said decision. From all I had earlier on stated in this ruling, the argument of learned applicant’s counsel cannot stand, this Court having discovered that there is a nexus between the present application and the issues dealt with by the Court in its judgment in Suit No. NICN/ABJ/125/2019, delivered 17^th December, 2019, wherein the applicant and respondent herein were parties in that suit, with same subject matter in this application, which has been addressed in that judgment. It is inconsequential that the motion has not been determined before the Court, as the Court cannot deal with the issues or reliefs sought in the motion paper of applicant, having discovered that the application is caught by the principle of res judicata. See case of Yusuf vs. Adegoke & Anor (2007) 11 NWLR (Pt.1045) 332 @361-362, Per Aderemi JSC, wherein this principle was well established by the Apex Court, and the Court held thus:

“It has become well entrenched in our Civil Jurisprudence that once a matter has been finally and judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate such matter in Court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to challenge nor can it be contradicted. The term derives its force from good public policy which says there must be an end to litigation…….”

In the circumstance, the arguments of counsel to applicant are all rejected.

It must not also be forgotten that the applicant had informed the Court that there is an appeal pending regarding judgment in Suit No. NICN/ABJ/125/2019. This being the case, the best bet for the applicant is to await the determination of that appeal. The applicant is quite aware of the issues determined by the Court in the aforementioned suit but still went on to file this application with same issues before this Court, which qualifies as an abuse of Court process. It is settled law that concept of abuse of process applies to proceedings which are bereft of good faith, which are not only frivolous, but also vexatious or oppressive, and meant to irritate or annoy the opponent and the efficient and effective administration of justice. See FRN vs. Dairo (2015) 6 NWLR (Pt.1454) Page 141 @172 Para B-E.

Again, the applicant knew that this application for joinder shouldn’t have been filed when judgment was already slated to be delivered. It shows the clear intention of applicant to arrest the judgement of this Court. Parties had already adopted their written addresses in the substantive suit before the application for joinder was filed. I find this application for joinder incompetent before this Court; the application is not in compliance with Order 47 Rule 15(2) of the Rules of this Court, which provides thus:

“A motion or an application which has been filed and an advance copy of same has been served on the respondent(s) within fourteen (14) days before the date fixed for delivery of the Judgment and seven (7) days before the date fixed for delivery of the Ruling may be allowed and heard.”

An application as the present one is incompetent, and meant to delay or arrest delivery of judgment in this suit.See Order 47 Rules 14 and 15(1) of the Rules of this Court as applicable in the circumstance, and same is reproduced thus:

47 Rule 14:“Where a matter is fixed for judgment or ruling, no motion shall be allowed to prevent the Judge from delivering the Judgment, Order or Ruling.

Rule 15(1):“Any motion filed in contravention of rule 14 of this Order may be incompetent and may not be allowed to be used to delay or prevent the delivery of the Judgment, Order or Ruling of the Court.”

Judgment in this case was to be delivered in the first instance on 12^th day of December, 2019, after the adoption of written addresses by counsel. The applicant had filed his initial application for joinder on 9^th day of January, 2020, which is in clear contravention with the aforementioned rules of this Court, and with the intention of arresting judgment of this Court. In any event, and from the foregoing, the application for joinder is underserving of any merits, as I find same frivolous and vexatious. In circumstance, the application is refused and also dismissed, with cost of N100, 000.00 (One Hundred Thousand Naira) awarded against the applicant/party seeking to be joined, in favour of the claimant/respondent in the application.

I will accordingly proceed and deal with the substantive matter.

ORIGINATING SUMMONS/SUBMISSIONS OF CLAIMANT

The claimant has in the written address distilled a sole issue for determination, thus:

“Whether by the provisions of the Constitution of the Senior Staff Association of Statutory Corporation and Government Owned Companies, Rule 3(i) and Section 4(2) of the Federal Housing Act Cap F14 LFN 2004, the claimant is the right union to organise the Senior Staff of the Federal Housing Authority.”

Claimant’s counsel in written address reproduced the aforementioned laws as follows:

Rule 3(i) Constitution of the Senior Staff Association of Statutory Corporation and Government Owned Companies:

“Any senior staff of the Federal and State Statutory Corporations and Government Owned Companies other than those engaged in activities which are strictly commercial shall become a member of the Association.”

Section 4(2) of the Federal Housing Act Cap F14 LFN 2004:

“For the avoidance of doubt, it is hereby declared that the provision of sub section (1) of this section relate only to capacity of the Authority as a Statutory Corporation and nothing in those provisions shall be construed as authorising the disregard by it of any enactment or rule of law.”

It is in light of the above, that counsel submitted that the claimant is the right labour union to organise the senior staff of the defendant herein, relying on Exhibit 5 annexed to the affidavit in support of application, which is judgment delivered on 11^th April 2009, in Suit No. NIC/25/2007 in Precision, Electrical & Related Equipment Senior Staff Association (PERESSA) vs. Senior Staff Association of Statutory Corporation and Government Owned Companies, wherein the Court held at page 15, para.1 line 8, thus:

“The 1^st defendant must remain within the confines of its statutory mandate as the counterpart to Amalgamated Union of Public Corporations, Civil Services Employees (AUPTRE)….”

Counsel equally relied on the case of Air Transport Senior Staff Association of Nigeria (ATSSAN) vs. Senior Staff Association of Statutory Corporation and Government Owned Companies (SSASGOC), Judgment delivered on 24^th June, 2007, and the Court held thus:

“……. when a court rules, that junior staff union invariably, the Senior Staff of the Company or establishment can be unionized by the counterpart junior staff union, invariably, the Senior Staff union of the company or establishment would likewise be unionised only by counterpart senior staff.”

It is the submission of counsel that section 4(2) of the Federal Housing Act, describes the Federal Housing Authority as a Statutory Corporation, and the junior union presently organising the junior staff of the Federal Housing Authority is Amalgamated Union of Public Corporations, Civil Services Employees (AUPTRE), as evidenced by staff pay slip of FHA which shows the column for AUCPTRE Union dues, which this Court held in the case of Precision, Electrical & Related Equipment Senior Staff Association (PERESSA) vs. Senior Staff Association of Statutory Corporation and Government Owned Companies(Supra), as the counterpart junior union to the claimant. Therefore, following the decision in ATSSAN vs. SSASCGOC(Supra), the claimant should be the union to lawfully organise the senior staff union in Federal Housing Authority; urging the Court to so hold.

Counsel further relied on section 25 of the Trade Union Act Cap T14, to say that the recognition of a trade union is obligatory on the part of an employer, where its employees are members of the union, and it is offensive for an employer to refuse to accord recognition to a labour union registered under the Trade Unions Act, relying on sub sections (1) and (2) of section 25 of the Trade Unions Act. Counsel then urged the Court to issue an order of perpetual injunction restraining the Federal Housing Authority, its officers, staff, agent or privies from stopping the claimant from organising the senior staff in its employment. Counsel relied on the case of Babatunde Adenuga & 5 Ors (2001) 2 NWLR (Pt.696) 184 @ 195; Ojukwu vs. Gov. of Lagos State (1986) 3 NWLR (Pt.26) 39, and further urged the Court to hold in favour of the claimant.

Defendant’s counter affidavit in opposition to claimant’s originating summons application, was filed 25^th day of September, 2019, it is of thirteen (13) paragraphs and deposed to by one Linus Terna Staphen, Litigation Secretary in the law firm of Usman Dalhatu & Co, counsel to defendant in this suit. The defendant has adopted the sole issue distilled by claimant for determination, as follows:

Counsel for defendant relied on the provision of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999(As Amended), to the effect that the Constitution guarantees the right of every person to freely associate and belong to any Trade Union, and that the rights are qualified subject to Section 45(1) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).

Counsel went on and relied in particular on Section 45 (1) (a) and (b) as relevant to the instant suit. It is the contention of counsel that nothing in Sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society: (a) in the interest of defence, public safety, public morality or public health; or (b) for the purposes of protecting the rights and freedom of other persons. To counsel, this is the only basis upon which it is only right for the claimant and for the sake of public order be allowed to organise Staff of the defendant among other reasons. In support of his arguments on the issue, he relied on Sections 12, 3(2) TradeUnions Act, 9(2) Labour Act, and the International Labour Organization Convention No.87, which is the International Instrument on Freedom of Association and Protection of the Right to Organize Convention 1948, and the cases of Jack vs. University of Agriculture, Makurdi (2004) 5 NWLR (Pt.865) Page 208 @ 225; Osawe vs. Registrar of Trade Union (1985) 1 NWLR (Pt.4) 755, to say that workers have the right to belong to or join a trade union of their choice.

In his oral reply on point of law, counsel for the claimant relied on the case of Vincent Egharevba vs. Dr. Orobor Osagie (2009) LPELR – 266/2003, and submitted that it is the decision of the Supreme Court in that case that where there are two conflicting oral evidence, documentary evidence should be the yardstick in resolving issues. He again referred the Court to Exhibit 6(Pay slip of one of the claimant’s members), and submitted that AUPTRE is junior Union to claimant and effective till date in defendant’s organization, urging the Court to so hold.

COURT’S DECISION ON ORIGINATING SUMMONS

I have read the questions for determination and the reliefs sought by the claimant, as well as the facts contained in the affidavit in support of the originating summons. Parties have both argued same issue formulated for determination in their respective addresses, and the Court will deal with the issue to wit; “whether by the provisions of the Constitution of the Senior Staff Association of Statutory Corporation and Government Owned Companies, Rule 3(i) and Section 4(2) of the Federal Housing Act Cap F14 LFN 2004, the claimant is the right union to organise the Senior Staff of the Federal Housing Authority.”

The claimant wants the Court to interpret the above provisions in line with its jurisdictional scope in the defendant (Federal Housing Authority). It is the contention of the claimant that it has from inception being the labour union organising the senior staff of the defendant, while the union organising the junior staff in the defendant is Amalgamated Union of Public Corporations, Civil Services Employees (AUPTRE), a junior union to the claimant.The claimant relied on Exhibits 1A & B, 2, 3, 4A & B, 5 and 6 (Federal Republic of Nigeria Official Gazette No.6, of 8^th February, 1978, samples of membership forms of some claimant’s members, letter from the Managing Director of defendant dated 18^th September, 2018, Constitution of the SSASCGOC, 8^th Edition 2016, Federal Housing Authority Act CAP F14 LFN 2004 and Exhibit 6 which is pay slip of claimant’s member and staff of the defendant.

The defendant’s contention is that the claimant is not the only Trade Union engaged in organising members of the defendant. It does not also agree that Amalgamated Union of Public Corporations, Civil Services Employees(AUPTRE) is the junior union to the claimant organising junior staff in the defendant. The argument of the defendant is that workers are free to form or join a trade union of their choice, relying on Section 45(1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), Sections 12, 3(2) Trade Unions Act, 9(2) Labour Act, and the International Labour Organization Convention No.87, which is the International Instrument on Freedom of Association and Protection of the Right to Organize Convention 1948, among other authorities cited.

I have done an extensive reading of Exhibits 1A(Constitution and Code of Practice of SSASCGOC), & 4B (Federal Housing Authority Act) relied upon by the claimant. By Section 4(2) of Exhibit 4B, it is clear that the provisions relate in particular to the defendant (Federal Housing Authority) and its capacity as a statutory corporation. Again, Rule 3(i) of Exhibit 1A is to the effect that any senior staff of the defendant shall become a member of the claimant(SSASCGOC). This provision was reproduced by the claimant in his address, but at the risk of repetition, it is again reproduced hereunder:

Rule 3(i): “Any senior staff of the Federal and State Statutory Corporations and Government Owned Companies other than those engaged in activities which are strictly commercial shall become a member of the Association.”

The above provision does not make reference to any other union with the right to unionize the senior staff of the defendant other than the claimant herein. Furthermore, in the order of arrangement of the 71 industrial unions as contained in Exhibit 1B (Federal Republic of Nigeria, Official Gazette, 8^th February, 1978, Vol. 65, No.6), Section 66 of the Gazette, made out a list of existing trade unions to which the junior employees of Federal and State Statutory Corporations and Companies, etc., including the defendant herein belong. The same is applicable to the senior staff of the defendant; in its case, Sections 67 and 68 of the Gazette are applicable. And these sections list the unions to which the senior staff of Federal and State Statutory Corporations and companies belong, which includes the defendant herein.

I think the provisions are clear and unambiguous as it concerns senior staff of the defendant and the right union they should belong to, which is the claimant(SSASCGOC) herein. Undoubtedly, the argument of defendant counsel regarding provisions of Section 40 of the 1999 Constitution with other constitutional provisions cited may not be totally wrong, which states that “every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any trade union……” I have equally read the case of Osawe vs. Registrar of Trade Union (Supra)relied upon by defendant counsel in support. In that case, the applicants applied to the Registrar for the registration of a trade union called ‘the Nigeria United Teaching Service Workers Union’ otherwise called the Nigeria Administrative Staff Union of Primary and Post Primary Schools’. The Registrar refused to register the Association on the ground that there was in existence a trade union which sufficiently catered for the interest of members of the proposed union as prohibited by section 3(2). The applicant appealed to the High Court, which made an order compelling registration. That order was however set aside by the Court of Appeal and the Supreme Court affirmed the Court of Appeal decision.”

In my understanding of the decision of the Apex Court in that case and having also read the facts of the present case, it is clear that the right guaranteed is not absolute but qualified and can be derogated from in accordance with the provisions of Section 45 of the Constitution, which is to the effect that nothing in Section 37 shall invalidate any law that is reasonably justifiable in the interest, amongst others of public order. For example, in the context the right does not include freedom to proliferate and duplicate unions and efforts in places where they already exist. In the instant case, the claimant(SSASGOC) is being in existence as the union that is eligible to unionize senior staff of the defendant as recognized by Exhibits 1A and 1B relied upon by the claimant. I need to point out here that whilst noting that the right of a worker to decide which union to join is not absolute, that right must however be exercised within the limits of the Trade Unions Act Cap T14 LFN 2004. Thus the freedom to join a trade union or choose which union to join is limited to the unions empowered to operate within a clearly defined jurisdictional scope. In other words, voluntarism as established by the 2005 Trade Unions (Amendment) Act must exist within and not outside all existing laws. See PERESSA vs. SSACGNOC (2009) 14 NLLR (Pt.39) 306 @342 paras D-F, NCSU vs. ASCSN (2004) 1 NLLR (Pt.3) 429.

Furthermore, a cursory look at Part C of the 3^rd schedule of the Trade Unions Act(TUA), indicates the list of trade unions and their respective areas of jurisdiction, wherein the claimant is listed as No.16 on the list as “Senior Staff and Employers’ Association, and this in my thinking clearly indicate that the workers to belong to the union of the claimant are the senior staff of the in Statutory Corporations and Government owned Companies. By virtue of Section 4(2) of the Federal Housing Act Cap F14 LFN 2004, defendant herein is a Statutory Corporation. Also, by a combined reading of Part C of the 3^rd schedule of the Trade Unions Act(TUA), and Sections 67 and 68Federal Republic of Nigeria, Official Gazette, 8^th February, 1978, Vol. 65, No.6), which list the unions to which the senior staff of Federal and State Statutory Corporations and companies belong, and includes the defendant herein, one cannot but agree with the argument of claimant’s counsel herein that the claimant is the rightful union to organise the senior staff in the Federal Housing Authority(defendant), and I so hold.The law is trite that where the words used in a statute are clear and unambiguous, they must be given their ordinary meaning unless such interpretation would lead to an absurdity and injustice. The words used in the aforementioned provisions of the statutes are very clear and unambiguous, they do not need an importation of extrinsic words or aid to interpret them or to get the real intention of the law makers which was to ensure that trade unions operate within their jurisdictional scope and avoid chaos in the labour circles which has the tendency of destabilizing the society. It is therefore in the interest of public order that the right union be allowed to unionize workers who belong to that union as its members, and as prescribed by law. In this case, it is the claimant (Senior Staff Association of Statutory Corporation and Government Owned Companies), which is the union that is eligible to unionize the senior staff of the defendant (Federal Housing Authority) in this suit. I so hold. See also the decisions of this Court in the following cases relied upon by claimant’s counsel in this suit:

Precision, Electrical & Related Equipment Senior Staff Association (PERESSA) vs. Senior Staff Association of Statutory Corporation and Government Owned Companies, judgment delivered on 11^th April 2009, in Suit No. NIC/25/2007, particularly,at page 15, para.1 line 8; Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC), judgment delivered on 17^th day of December 2019, in Suit No. NICN/ABJ/125/2019(Exhibit 2) annexed to the claimant’s originating summons application.

The above cases are apt and very much applicable to the instant case, and at this juncture, I cannot resist to resolve the sole issue for determination in favour of the claimant in this suit. Consequently, reliefs 1 and 2 sought by the claimant are accordingly granted.

For avoidance of doubt, this Court hereby declare that the claimant is the rightful labour union to organise the senior staff of Federal Housing Authority(defendant) in this suit. It is also, the order of this Court that the defendant, its officers, staff, agent or privies shall not prevent or stop the claimant from exercising its jurisdiction within the confines of the law.

No cost is awarded regarding this originating summons.

Judgment is hereby entered.

Hon. Justice R.B. Haastrup

JUDGE