IN THE NATIONAL COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD
DATE: MAY 5, 2022 SUIT NO: NICN/AWK/33/2015
1. Comrade Believe Alakri
2. Comrade Eveso Moses
For themselves and on behalf of National
Union of Road Transport Workers
(Heavy Truck Branch Isoko South
Local Government Area - Claimants
1. Comrade (Chief) Ifeanyi Obi
2. Comrade Anthony igwebuike - Defendants
Chief K.O. Uwubiti for the claimants
F.T. Eluri-Ede, ACIArb, NP with M.E. Ode for the defendants
1. The claimants filed this complaint against the defendants on 17 September 2015. By Order of Court granted on 16 October 2019, the claimants further amended their amended complaint and statement of claim and accompanying processes. The claimants’ claim against the defendants as follows:
a) A declaration that under the Constitution of the National Union of Road Transport Workers 2003 as amended the 1st and 2nd defendants are not eligible to present themselves, apply and or contest the elections into executive positions of Chairman, Assistant State Secretary and/or any other position of the National Union of Road Transport Worker (sic), Delta State of Nigeria on the grounds of illiteracy and anti-trade union activities.
b) An order of perpetual injunction restraining the 1st and 2nd defendants from presenting themselves, applying and/or contesting the positions of Chairman, Assistant State Secretary and any other position of the National Union of Road Transport Workers, Delta State Council Asaba Delta State slated for October 2015 or thereabout on the ground that the 1st defendant is an illiterate person who cannot read and write while both defendants have been engage in anti trade Union activities.
c) A declaration that the returning of the 1st and 2nd defendants as the State Chairman and the Assistant State Secretary of the National Union of Road Transport Workers, Delta State Council, Asaba without election after their tenure expired on or before 19th day of October 2015 is unconstitutional and to that extent null and void.
d) An order of perpetual injunction restraining the 1st and 2nd defendants from presenting, performing and/or parading themselves as State Chairman and Assistant State Secretary of the National Union of Road Transport Workers, Delta State Council, Asaba.
e) An order of Court declaring null and void the purported dissolution of the Isoko South Heavy Truck of National Union of Road Transport Workers, Oleh Branch via a letter dated the 21st day of Decemer, 2015 during the pendency of this suit.
f) An order declaring null and void the purported suspension of the 1st claimant via a letter dated the 16th day of March, 2016 and the purported appointment of Caretaker Committee for Isoko South Heavy Truck Branch, Oleh dated the 16th day of January, 2017 during the pendency of this suit.
g) Cost of this suit.
2. At the trial, Comrade Believe Alakri, a Transporter of No. 4 Alari Crescent, off Odero Road, Oleh, Isoko South Local Government Area Delta State testified as CW1 and tendered the Following documents:
1. Constitution of the National Union of Road Transport Workers (NURTW) (Exhibit CW1/1)
2. NURTW National Secretariat, Abuja, State Delegates Conference Form ‘C’ for Comrade Suku Edah (Exhibit CW1/2)
3. NURTW National Secretariat Abuja, State Delegates conform ‘C’ for Abanum Benson (Exhibit CW1/3)
4. Judgment in unreported Suit No NICN/EN/99/2012 between Comrade Believe Alakri & 9 ors v. Comrade Chief Ifeanyi Obi, the judgment of which was delivered on April 7, 2014 (Exhibit CW1/4)
5. Letter from claimants to General Secretary NURTW Garki Abuja Nigeria dated 16/03/2012 titled: Unlawful and Illegal Creation of Heavy Truck Branch ‘B’ of NURTW in Isoko South LGA of Delta State by the defendants (Exhibit CW1/5)
6. Letter from claimants to General Secretary NURTW Garki Abuja Nigeria dated 27 July 2012 titled: Unlawful and Illegal Creation of Heavy Truck Branch ‘B’ of NURTW in Isoko South LGA of Delta State by the defendants (Exhibit CW1/6)
7. Letter from members and officers of NURTW Delta State Council Asaba to the General Secretary NURTW National Headquarters Abuja dated 29 August 2015 titled ‘Saved our Souls (SOS) (Exhibit CW1/7)
8. Letter from NURTW Delta State Council Asaba to the Director S.S.S Delta State Command Asaba dated 10 October 2014 titled: Information (Exhibit CW1/8)
9. Letter from NURTW Delta State Council Asaba to the General Secretary NURTW National Headquarters Abuja dated 11 December 2014 titled: Information (Exhibit CW1/9)
10. Letter from NURTW Delta State Council Asaba Delta State to Comrade Believe Alakri dated 16 March 2016 titled: Suspension Letter (Exhibit CW1/10)
11. Letter from NURTW Delta State Council Asaba Deta State to the Chairman NURTW Isoko South Heavy Truck, Oleh dated 21/12/2015 tiled “DISSOLUTION LETTER” (Exhibit CW1/11).
3. The defendants filed a memorandum of conditional appearance through their counsel, F.I. Eruli-Ede, Esquire, ACIArb, NP dated 16 October 2015. Defendants filed a motion on notice on 20 October 2015 praying the Court for an order striking out this suit on ground that the Court has no jurisdiction to entertain this suit and that the claimants/respondents have no locus standi to initiate the suit. The defendants did not file a statement of defence in this suit.
4. At the close of trial, counsel to the claimants urged the Court to foreclose the defendants from cross-examining the CW1 in the absence of the defendants and counsel representing defendants. The defendants were accordingly forclosed as prayed.
THE CASE BEFORE THE COURT
5. It is the case of the claimants that the 1st defendant is not qualified to contest the position of the State Chairman of the Union and/or any other position at all; that the 1st defendant is an illiterate and cannot read and write contrary to the Constitution of NURTW 2003 (as amended); that 1st defendant was erroneously elected as State Chairman of NURTW as the 1st defendant was not screened by the Electoral Committee of the National Headquarters of NURTW, Abuja before the contest on 19 October 2011 (a four years tenure ) which will expire in October 2015. That the claimants shall rely on Article 42 sub 4 paragraph v of the Constitution of NURTW 2003 (as amended) to show that the 1st defendant being an illiterate cannot occupy the position of the Chairman of the Union and not eligible to contest for such position.
6. The claimants went on that the defendants are engaged in Anti Trade Union activities contrary to the Trade Union Act; that the NURTW is an affiliate of the Nigeria Labour Congress (NLC) as a registered Trade Union under the Trade Union Act which forbids Anti Trade Union Act; that the 2nd defendant is the Assistant State Secretary of the State Councilof the Union, Asaba and also the Branch Chairman of the Union, Ika North East ‘B’ Local Government Area whose tenure will expire in October 2015. That the elections which was fixed for 19 October 2015 did not take place due to the unconstitutional acts of the defendants who returned themselves as the State Chairman and Assistant Secretary of the State Council of the Union, Asaba respectively; that what the defendants did was unconstitutional.
7. The claimants continued that 1st claimant showed intent to contest for the position of the Financial Secretary of the Council at the State Council; and purchased the form for the position of the State Financial Secretary; that Comrade Benson Abanum nominated Comrade Igumbor A. Augustine for the position of State Chairman of the Union; that 1st and 2nd defendants connived with the National President of the Union to deprive the 1st claimant and the said Comrade Igumbor A. Augustine from contesting for the positions of the Financial Secretary and State Chairman after they had collected their nomination forms and returned them. That by the acts of the defendants the 1st claimant and his nominee were deprived of their rights to contest into the Executive position of the Union at the State Council, Asaba and also suffered financial loss.
8. The claimants added that consequent upon the deprivation of the 1st claimant and his nominee to contest for the aforementioned position, the Isoko South Branch of the Heavy Truck were prevented from presenting a candidate to State Council of the Union, thus depriving them of a voice at the State level of the Union; that due to the fact that the 1st defendant is an illiterate who cannot read and write, the 1st defendant with the connivance of the 2nd defendant and their cohort are engage in maladministration at the State level to which the NURTW Heavy Truck Branch, Isoko South LGA Oleh, Delta State contribute financially every month to the State purse of the Union; that this financial and administrative deficiency led to among others the illegal creation of Branch A and B of the Isoko South Local Branch of the NURTW (Heavy Truck). That this maladministration and unconstitutional acts were declared null and void by the National Industrial Court sitting in Calabar. See CTC of the judgment filed along with the process.
9. To the claimants, they had severally complained in writing to the National Headquarters in 2012 complaining of the acts of maladministration of the State Council of the Union by the defendants. See copies of the letters dated 16 March 2017, 27 July 2012 and 29 August 2015 amongst others and filed along with this process. That these petitions and/or complaints were not addressed by neither the National Headquarters of the Union or the Zonal office of the Union.
10. That the tenure of the 1st and 2nd defendants expired on or before 19 October 2015; that the defendants have perfected plans to apply and collect forms to contest election into the positions of the State Chairman of the Union and Secretary respectively; that they are not eligible to contest for any executive position of the Union the 1st defendant being an illiterate while both defendants engage in anti trade union activities. That the Constitution of the NURTW governs all activities of the Union members and bind all members of the Union. That the defendants without the decision of the State Council of the Union caused a letter dated 10 October 2014 to the Director of State Security Service (SSS) Asaba Delta State; that when the 1st claimant confronted the defendants at the State Executive meeting of the Union at Asaba with the said letter, the 1st defendant instructed 2nd defendant to write the letter to the Director of SSS, Asaba.
11. The claimants continued that the defendants have the backing and support of the Union of Tipper and Quarry Employer (sic) of Nigeria (UTQEN), an affiliate of Trade Union Congress (TUC); that the State Executive meeting of the Union held in Asaba in August 2014 and 1st defendant introduced one Comrade Chukwudumebi Elueka and other officers as Executives of UTQEN in Delta State and further states (sic) that the defendants have agreed with UTQEN Executives to share proceeds from NURTW and UTQEN activities in Delta State. That other executive members of the State Council of the Union disassociated themselves from the defendants because the aforementioned acts amount to anti-trade union activities and thus the defendants are not eligible to contest the elections in any manner whatsoever.
12. The claimants continued that when the anti-trade union activities got to a crescendo, the 1st Vice Chairman (Comrade Chief Mike Ajuya) and two other persons caused a letter dated 11 December 2014 to be addressed, written and delivered to the General Secretary of the Union, Abuja. That the defendants through the 2nd defendant via a letter dated 21/12/2015 acting ultra vires the Union Constitution purportedly dissolved the Isoko South Heavy Truck of NURTW, Oleh while this matter is pending; that the defendants purportedly without legal justification suspended the 1st claimant via a letter dated 16/3/2016 while this suit is still pending. That the defendant during the pendency of this suit unlawfully appointed a caretaker committee in respect of the aforementioned branch via a letter dated 16 January 2017 and same is froantloaded with this process. That the claimants shall rely on the doctrine of LIS PEND to set aside all the acts carried out in relation to the subject matter of this pending suit; that in spite of repeated warning, the defendants still engage in anti-trade union activities inimical to the Union Constitution of NURTW.
13. The claimants did not file final written address.
14. I have carefully considered the processes filed by the parties. I pointed out that the defendants filed their memorandum of conditional appearance by counsel representing them, but did not file any defence process. Counsel to the claimants closed his case for the claimants after their testimony and sought for a date for adoption of final written address. Same was granted by the Court. None was filed by both counsel to the claimants and defendants.
15. On whether the right to present a final address by a party or counsel can be waived, the Court of Appeal held in Joseph Udoh John v. The State (2015) LPELR-40424 (CA) per Otisi, JCA thus:
“The importance of final written address is not in doubt. Section 294 (1) of the 1999 Constitution, as amended, provides that:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”. By virtue of these provisions, a trial Court is obliged to give opportunity to parties in a cause or matter before it to deliver their respective final written addresses before it delivers judgment. The Supreme Court, per Belgore, JSC (as he then was) held in Obodo v. Olomu (supra), relied upon by the Appellant, that: “the addresses, I hold, are not directed at the Court alone. The purport of the address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court … “…The most important factor for consideration is whether an opportunity to address the Court was indeed afforded the parties as constitutionally guaranteed. If the opportunity provided for the purpose, there cannot be said to be lack of fair hearing. Rather, the party will be deemed to have waived his rights to address the Court. Ezomo v. Oyakhire (supra); Lawson v. State (2014) LPELR-23647 (CA) … I am also guided by the decision of the Supreme Court in Newswatch Communications Ltd v. Atta (2006) 4 SC (Pt. 11) 114, (2006) 12 NWLR (Pt. 993) 144 as follows: “It is the duty of the Court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantages of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing … A trial judge can indulge a party in the judicial process for sometimes but not for all times” … There is no law that stipulates that the Court cannot go ahead to deliver judgment on the matter, taking account of the facts of the case, the evidence adduced and the law to be applied.”
16. The law is that even if a defence was not entered, under the minimal evidence rule, the claimant is still not absorbed from still proving his case. See Plateau State Health Services Management Board & anor v. Inspector Philip Fitoka Goshwe (2012) LPELR-9830 (SC), Larmie v. Delta Processing Maintenance & Services Ltd (2005) LPELR-1756 (SC), Ogunjumo & ors v. Ademolu & ors (1995) LPELR-2337 (SC), Baba v. Nigerian Civil Aviation & anor (1991) LPELR-692 (SC), Uwahianvi & anor v. Onyemaizu & anor (2017) LPELR-41672 (CA) Erokwu & anor v. Erokwu (2015) LPELR-41515 (CA). In any event, relief (a) sought for by the claimants, and it seeks a declaratory relief. The law is that where a party seeks a declaratory relief, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any); such a relief will not be granted, even on the admission of the defendant. see Nyeson v. Peterside & ors (2016) LPELR-40036 (SC), Okereke v. Umahi & ors (2016) LPELR-40035 (SC), Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 297-299, Uche v. Elechi (2012) 13 NWLR (Pt. 1317) 230, Mohammed v. Wammako & ors (2017) LPELR-42667 (SC) and Bulet International (Nig) Ltd & anor v. Olaniyi & anor (2017) LPELR-42475 (SC).
17. The claimants claim against the defendants under relief (a) is the Court’s declaration that under the Constitution of NURTW 2003, as amended, the 1st and 2nd defendants are not eligible to present themselves, apply and/or contest the election into executive positions as Chairman, Secretary and/or any other position of the NURTW, Delta State, Asaba or any other positions of any of the Branches in Delta State of Nigeria on the grounds of illiteracy and anti-trade activities. In Federal University of Technology Akure & anor v. Academic Staff Union of Universities (ASUU) (2013) LPELR-20323 (CA), the Court of Appeal in the meaning of “eligible”, held per Gumel, JCA thus:
“The word “eligible’ has variously been defined as “to do something satisfying appropriate conditions.” See Concise Oxford English Dictionary Revised 10th Ed. at page 463. Also, at page 559 of Black’s Law Dictionary, 8th Edition, eligible was provided to mean: “fit and proper to be selected or to receive a benefit; legally qualified for an office, privilege or status …” Another Webster New Explore Encyclopedic Dictionary to mean: “Choose or elect, worthy of being chosen.” The Chambers 21st Century Dictionary Revised Edition at p. 427 defines (it as), “suitable or deserving to be chosen for a job, etc., having right to something.”
18. The claimants averred in paragraph 3 of their statement of claim that the 1st defendant is not qualified to contest the position of Chairman of the NURTW and/or any other position at all. In their deposition, 1st claimant (CW1) stated at paragraph 5 that he shall rely on Article 42 sub 4 paragraph v of the NURTW Constitution (Exhibit CW1/1) to show that the 1st defendant being an illiterate cannot occupy the position of the Chairman of the Union and not eligible to contest for such position. Paragraph 3 of the CW1’s statement of claim (Emphasis the Judex). So, while it is conceded that Article 42 sub 4 paragraph v of NURTW Constitution (Exhibit CW1/1) provides that: “No illiterate shall be elected or appointed President, Secretary, Treasurer or any similar office in the Union” that provision in itself does not show that the 1st , 2nd defendants are illiterates and cannot occupy the positions they held. The allusion to maladministration and unconstitutional acts by the defendants, in my contemplation view, does square up to acts of illiteracy. I so hold. It is even more so when the claimants themselves stated in paragraph 20 of their further amended statement of claim that: “…the tenure of the 1st and 2nd defendants expired on or before the 19th day of October, 2015”; and in paragraph 21 of the claimant further amended statement of claim, that: “… the defendants have perfected plans to apply and collect forms to contest election into the positions of the State Chairman of the Union and Secretary respectively.” These in my humble view, are not acts of people who are illiterates. I so hold.
19. In Peter Chidebelu & anor v. Probate Registrar High Court of Anambra State & ors (2013) LPELR-21213 (CA), the Court of Appeal held per Agim, JCA thus:
“It is clear from the evidence that the late Jeremiah Okonkwo Chidebelu, though an illiterate, signed the will by writing “J.O.C” and there is also uncontradicted evidence that this is the usual manner of executing documents. Therefore the contention of the appellants that the deceased did not sign the will (Exhibit C) because he was an illiterate is not valid. Just like a literate person can choose to thumb impress a document instead of signing it, an illiterate person can choose to sign a document instead of affixing his or her thumb impression on it. Whether a person signed or thumb impressed a document or not is a question of fact that must be resolved on the evidence before the Court. It is not a matter that can simply be presumed or assumed from the mere fact that such a person is literate or illiterate. This Court sitting in Ibadan in Adeykuno v. Adeyemo & ors (2010) LPELR-3621 held per Kekere Ekun, JCA following the Supreme Court decision in Otitoju v. Governor, Ondo State (1994) 4 NWLR (Pt. 340) 518 at 529 that there is nothing in law that prevents a literate person from fixing his thumb impression to a document and the fact that one is able to write or sign one’s name on a document does not mean that one is literate.”
The point to note here is that whether a person is an illiterate or not is a question of fact that must be resolved on the preponderance of evidence before the Court. It is not a matter that can simply be presumed or assumed from the mere fact that such a person is literate or illiterate. Claimants have not shown that 1st & 2nd defendants are illitrates. I so hold. Relief (a) accordingly fails and so is hereby dismissed.
20. Relief (b) is a prayer for an order of perpetual injunction restraining the 1st and 2nd defendants from presenting themselves, applying and/or contesting the positions of Chairman, Secretary and any other position of the NURTW Delta State Council Asaba Delta State slated for October 2015 or thereabout on the ground that the 1st defendant is an illiterate person who cannot read and write while both defendants have been engaged in anti-trade union activities. On the issue of illiteracy, I have already ruled in consideration of relief (a) that claimants have failed to show that defendants are illiterates. Regarding anti-trade union activities, the claimants averred in paragraph 22 of their further amended statement of claim that the defendants by the Trade Union Act are not eligible to contest for any executive position of the Union on grounds of their engagement in Anti-Trade Union activities. To the claimants, the defendants’ letter to the Director SSS Delta State Command Asaba (Exhibit CW1/8) intimating the Director of defendants’ collaboration with Union of Tipper and Quary Employers of Nigeria (UTQEN) as a team for peaceful coexistence among the two unions and other developments in Delta State all constituted anti Trade Union activities. The claimants however did not cite the provisions of the NURTW Constitution 2003 (Exhibit CW1/1) and the Trade Union Act that were breached by the defendants. Proof cannot be sustained by the ipse dexit of claimants. This being so, the question of anti-Trade Union activities remains unproven under the minimal evidence rule. Relief (b) accordingly fails and is hereby dismissed.
21. Relief (c) seeks the Court’s declaration that the returning of the 1st and 2nd defendants as the State Chairman and the Assistant Secretary of the NURTW Delta State Council, Asaba, without election after their tenure expired on or before 19 October 2015 is unconstitutional and to that extent null and void. I stated ealier in this judgment that in paragraph 21 of claimants’ further amended statement of claim they averred that “the defendants have perfected plans to apply and collect forms to contest election into the positions of the State Chairman of the Union and Secretary respectively after their tenure expired on or before the 19th day of October, 2015. Aside the purported plans perfected by the defendants, the claimants have failed to place before the Court evidence of a subsequent election carried out by NURTW Delta State Council Asaba returned the defendants as Chairman and Secretary respectively. The law, as stated ealier in this judgment, is that where a party seeks a declaratory relief, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any); such relief will not be granted, even on the admission of the defendant. See Okwor & ors v. Ugwu & ors (2016) LPELR-40184 (CA), Yakubu v. Alagbon & anor (2015) LPELR- 40735 (CA), Hadejia v. Abbas (2016) LPELR40234 (CA). As it is, therefore, relief (c) must fail and so is hereby dismissed for lack of proof under the minimal evidence rule.
22. The claimants as per relief (e) seek an order of Court declaring null and void the purported dissolution of the Isoko South Heavy Truck of NURTW, Oleh Branch via a letter dated 21 December 2015 during the pendency of this case. The claimants rely on the doctrine Lis Pendis (sic) in urging the Court to set aside all the acts carried out in relation (sic) the subject matter of this pending suit. The claimants however did not address this Court on the principle/doctrine of Lis Pendis (sic).
23. On the meaning of “lis pendens”, the Supreme Court held in Enekwe v. International Merchant Bank of Nigeria Limited & ors (2006) LPELR-1140 (SC) per Tobi, JSC thus:
“The expression is made up of two latin words. The first is lis. The second is pendens. The word lis means a piece of litigation, a controversy. The word “pendens” conveys the connotation of pending. The two words put and read together generally mean a pending law suit. The expression is a useful Latinism that has given its name to a notice required in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit must be subject to the outcome of the litigation. Traditionally, this notice was called the notice of lis pendens, but 25th century American Lawyers have shortened the phrase to merely lis pendens. See Bryan Garner, A Dictionary of Modern Legal Usage, Second Edition, page 350. This reflects and confirms the traditional racing colloquial language of the Americas and the Americans”
24. By the doctrine of lis pendens actions or steps taken by a party during the pendency of a suit, which are calculated to prejudice or overreach the adversary in the suit are avoid. See Walri Alabo Victor Ibimina Jumbo & ors v. Chief H. F. Jumbo & ors (2010) LPELR-8673 (CA). See also Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 82 at 197-198; Oshinowo v. National Bank of Nigeria Ltd (1998) 11 NWLR (Pt.574). See further Amaechi v. INEC & ors (2008) LPELR-446 (SC) in which the Apex Court held, per Aderemi, JSC thus:
“The doctrine of lis pendens find expression in the assertion that it prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or hopelessness on the parties or the Court during the pendency in Court of an action and even after. By that doctrine, the law does not allow to litigant parties or give to them during the currency of the litigation involving the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallows any transfer of rights or interest in any subject matter that is being litigated upon during the pendency of litigation in respect of the said subject matter.
25. Exhibit CW1/11 dated 21 December 2015 is a letter from the NURTW Delta State Council to the Chairman NURTW Isoko South Heavy Truck, Oleh. It state thus:
In line with the Union Constitution which stated in Article 42 Sect 5 (Discipline) Sub Sect (V) that non-compliance with the orders, directives or decisions of any of the organs of the Union having jurisdiction over the member under the Constitution.
In view of this, I am directed by the authority of the State Council to formally inform you that your branch Isoko South Heavy Truck of NURTW Oleh has been dissolved on 17th December 2015, you are by this letter directed to hand over all Union properties in your possessions to the appointed Caretaker Committee members with immediate effect.
… …. …. … …
Please accept the assurances of my esteemed regards.
26. Section 42 (1) (a) of the Trade Union (Amendment) Act, 2005 provides that:
1(a). No person shall subject any other person to any kind of constraint or restriction of his personal freedom in the course or persuation.
In Emeka v. Okoroafor & ors (2017) LPELR-41738 (SC), the Supreme Court held, per Eko, JSC that: “The right under Section 40 of the Constitution, the right to assemble and freely associate with others, works both ways. The others you want to associate with must be prepared to associate with you. None can be imposed, by order of Court, on the other. The right to freedom of association also connotes the right of the others to freely associate with or dissociate from whosever. The right to peaceful assembly and association entitles every person to associate freely with others. This right does not place a duty on any person to associate with any others. See Okafor & ors v. Ntoka & ors (2017) LPELR-42794 (CA). And by section 39 of the 1999 Constitution, as amended every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. See Okafor & ors v. Ntoka & ors (supra). The NURTW Delta State Council, Asaba, by law as clearly stated above, does not have the unfettered right to ostensibly sanction members of the NURTW Isoko South Heavy Truck, Oleh on grounds of refusal to comply with the directive or decision of any committee having jurisdiction over the members under the Constitution of the Union. The dissolution of the NURTW Isoko South Heavy Truck, Oleh by the NURTW Delta State Council is therefore illegal, unconstitutional, draconian and an abuse of office. I so hold. Relief (e) accordingly succeeds and so is hereby granted.
27. Relief (f) is for an order of Court declaring null and void the purported suspension of the 1st claimant via a letter dated 16 March 2016 and the purported appointed of Caretaker Committee for Isoko Heavy Truck Branch, Oleh dated 16 January 2017 during the pendency of this suit. The letter of suspension served on the 1st claimant (Comrade Believe Alakri) by the defendants dated 16 March 2016 is directly linked to a suit purported filed by the 1st claimant against the defendants. The defendants hinged their suspension of 1st claimant on Article 42 section 5 subjection (sic) (v) and section 6 subsection (ii) of Exhibit CW1/1 (NURTW Constitution 2003) for anti union activities. I read through the NURTW Constitution 2003 and there is nothing to show in Article 42 section 5 (v) and section 6 (ii) of the NURTW Constitution 2003 that a union member and Executive Officer be suspended ostensibly for anti union activities or at all. The defendants did not refer to any rule of the law or Constitution of NURTW 2003 making the provision for domestic remedies to be exhausted before a union member can access the Court.
28. The yardstick for challenging a suspension is whether the suspension is necessary, reasonable, valid and hence lawful. While it is acknowledged that in an employer/employee relationship, the employer has the right to suspend, the law as stated in Hotel Imperial v. Hotel Workers’ Union (1995) 1 LLJ 554 (SC) is that in the regulation of an employment relationship, the power to suspend an employee is not an implied term in an ordinary contract between employer and employee. The Supreme Court in Longe v. First Bank of Nigeria Plc (2010) 6 NWLR (Pt. 1189) 1 at 60 acknowledged this much too. Such a power can only be the creation of either a statute governing the contract or of an express term in the contract itself; and, in the absence of it, the employer would have no power to suspend an employee and, if he does, he will have to pay wages during the so-called period of suspension. The learned author, EM Rao, in the book, Industrial Jurisprudence: A Critical Commentary (LexisNexis Butterworths: New Delhi, India) 2008 stated at pages 236-237 that there are two types of suspension: ‘Suspension pending enquiry’ and ‘Suspension as a punishment’. Suspension pending enquiry is not a punishment per se, for if the employee is not found guilty, the suspension has to be lifted and he has to be paid to full wages for the period, as if he was never suspended. On the other hand, suspension imposed on the establishment of guilt is in the nature of punishment. The power of suspension is not an unfettered power; the power has to be exercised sparingly, reasonably and on good grounds. See also Adekunle v. United Bank for Africa Plc (2016) LPELR-41124 (CA).
29. Was there suspension of 1st claimant by the defendants necessary, reasonable, valid and hence lawful? I think not. Does the Constitution of NURTW 2003 say that filing a suit against other officials for the Court’s opinion on issues affecting the NURTW an infraction worthy of suspension? I did not see such provision in Exhibit CW1/1 (NURTW Constitution) 2003. Even granted that an official of the Union can be sanctioned, did the defendants exercise the power of suspension sparingly, reasonable and on good grounds? NO. What all of this portends is that relief (f) succeeds and so is grantable. I so hold.
30. Relief (g) is a claim for cost of this suit. The general rule is that costs follow events and a successful party is entitled to cost. The award of costs or refusal to award costs is at the discretion of the Court provided the Court’s discretion must be seen to have been exercised judicially and judiciously. See NNPC Pension Ltd v. Vita Construction Ltd (2016) LPELR-41259 (CA). See also NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC).
31. In all, and for the reasons given, the claimants’ case succeeds but only in terms of reliefs (e) and (f) as indicated ealier. Accordingly, I make the following declarations and orders:
1) It is hereby declared that the purported dissolution of the Isoko South Heavy Truck Branch of National Union of Road Transport Workers, Oleh Branch via a letter dated the 21st day of December 2015 during the pendency of this suit is null and void.
2) It is hereby declared that the purported suspension of the 1st claimant via a letter dated the 16th day of March 2016 and the purported appointment of a Caretaker Committee for Isoko South Heavy Truck Branch, Oleh dated the 16th day of January, 2017 during the pendency of this suit is null and void. I so order.
3) Cost is assessed at Two Hundred Thousand Naira (N200, 000.00) only payable by the defendants to the claimants within 30 days of this judgment.
32. Judgment is entered accordingly.
Hon. Justice J.I. Targema, PhD