IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA

 

DATE: 24th September 2024.                        SUIT NO: NICN/JOS/22/2024

 

BETWEEN:

·                    COMRADE LUCKY OYINBO  

·                    REV. SAMUEL ADEWALE                                                              CLAIMANTS

(For themselves and on behalf of Pensioners of Federal Parastatals of 1. Nigerian Postal Service (NIPOST) 2. National Metallurgical Development Centre (NMDC) 3. National Institute for Policy and Strategic Studies (NIPSS) 4. Nigeria Mining Corporation (NMC) 5. National Museum and Monuments (NMM) 6. Industrial Training Fund (ITF) 7. National Veterinary Research Institute (NVRI) 8. University of Jos (UNIJOS) 9. Nigerian Telecommunications Limited (NITEL) 10. Nigeria Police Force (NPF).

AND

·                    THE MINISTER OF LABOUR AND EMPLOYMENT

·                    THE PERMANENT SECRETARY, MINISTRY

OF LABOUR AND EMPLOYMENT                                    DEFENDANTS

·                    FEDERAL PARASTATALS AND PRIVATE SECTOR

PENSIONERS ASSOCIATION OF NIGERIA (FEPPPAN)

 

REPRESENTATION:

·                    Thomas M. Ochigbo for the claimants.

·                     Defendants unrepresented.

JUDGMENT:

1.                 The claimants in this suit are pensionable retirees and members of the Nigeria Union of Pensioners (NUP), as such their check-off dues are usually deducted by the Pension Transitional Arrangement Directorate and remitted to the NUP. However, they were still members of the NUP when in 2020, the 3rd defendant sent a copy of a letter dated 22/06/20220 with reference number: ML/ITU/ 30/VI/113) to the 1st claimant’s mobile phone number 0803*****66, which letter was in effect directing the Executive Secretary of Pension Transitional Arrangement Directorate to remit deducted check-off dues of retirees of federal government parastatals (including those from which the claimants retired); also federal establishments now privatized (which are operating the defined scheme); and private organizations to another union, which is the 3rd defendant herein. The claimants obviously found this development unsettling, since it was without their consent. The claimants believe that as citizens of Nigeria they reserve the right to belong to trade unions and associations of their choice and not for one to be imposed on them. Hence, the institution of this suit for the redress of their grievances. .

 

CLAIMANTS’ RELIEFS AGAINST THE DEFENDANTS:

2.                  The claimants’ complaint was originally filed on 23/10/2020 and dated same day. The claimants, however, amended their Complaint and accompanying documents (by the order of Hon. Justice P.A Bassi) on 20/5/2022 vide motion on notice dated 4/5/2022 and filed on 5/5/2022.  By the said amended complaint, the claimants seeks the following reliefs:

 

                                        i.      A DECLARATION that the claimants as citizens of the Federal Republic of Nigeria and as Pensionable retirees of the Federal Government Parastatals enjoys constitutional liberty and/or freedom to form and/or join Trade Union of their choice.

                                      ii.      A DECLARATION that the claimants are members of the Nigeria Union of Pensioners (NUP).

                                   iii.      A DECLARATION that the presumption by the 3rd defendant that the claimants were members of the 3rd defendant without the consent of the claimants is illegal null and void.

                                   iv.      A DECLARATION that the letter written by the 1st and 2nd defendants to the executive secretary, Pension Transitional Arrangement Directorate (PTAD) dated 22/6/2020 for deduction of check-off dues of the claimants’ and to remit same to the 3rd defendant without the consent and authority of the claimants is illegal, null and void.

                                      v.      Two Hundred Million Naira (N200,000,000.00) only as general damages.

                                   vi.      20% interest on the judgment sum until the final liquidation thereof.

                                 vii.      Cost of the action.

 

3.                  Before this court, the claimants opened their case on 12/1/2024. The first claimant (Comrade Lucky Oyinbo) relying on his testimony as the sole witness, testified as C.W.1 and had 2 documents tendered through him (Exhibits A and B). He was not cross examined by the defendants due to their absence, whereupon the claimants eventually closed their case on the same day, 12/1/2024.

 

4.                  Meanwhile, the defendants did not defend this suit since its inception. They were conspicuously absent on record and unrepresented throughout the proceedings thus far. Consequently, the defendants were foreclosed on 24/6/2024 on the application of the claimants’ counsel and after adequate time for defence had been allowed in accordance with the rules of this court.

 

5.                  At the end of trial, on 24/6/2024 the claimants’ counsel addressed the court and applied for judgment to be entered in this suit for default of appearance in accordance the rules of this court, whereupon this court adjourned to this day for judgment.

 

CLAIMANTS’ FACTS:

6.                  As gleaned from the claimants’ amended statement of facts, they aver that the 1st claimant is a pensionable retiree of National Institute for Policy and Strategic Studies (NIPSS) and currently the secretary of Nigeria Union of Pensioners. The 2nd claimant is identified as a pensionable retiree of Nigeria Mining Corporation (NMC) and currently the chairman of Nigeria Union of Pensioners.

 

7.                  The 1st defendant is the Minister of Labour and Employment, while the 2nd defendant is identified by the claimants as the most Senior Civil Servant in the Ministry of Labour and Employment. The 3rd defendant is also identified as a newly registered trade union.  

 

8.                  These claimants aver that they have the right to belong to any trade union or association of their choice, and that they are members of Nigeria Union of Pensioners, which body is responsible for organizing pensioners throughout the Federal Republic of Nigeria since 15th day of August 1978. They aver that they instituted this suit with the consent of the members of the NUP having been sought and obtained.

 

9.                  The claimants aver that their check-off dues are usually deducted by the Pension Transitional Arrangement Directorate and remitted to the NUP.

 

10.                They further aver that the members of NUP were at peace until the 3rd defendant sent an electronic message to the 1st claimant through his WhatsApp no. 08032****66, inviting him to a meeting at the Commission for College of Education, Central Business District Opposite Federal Ministry of Finance, Abuja. A printout of the said message was pleaded as Exhibit A.

 

11.              The claimants further aver that the said 3rd defendant also went ahead to send a copy of a letter (dated 22/06/20220 with reference number: ML ITU/ 30/VI/113) to the same mobile phone of the 1st claimant (letter marked as exhibit B by the claimants). According to the claimant the said letter which emanated from the 1st and 2nd defendants, and signed by the 2nd defendant was originally written to the Executive Secretary of Pension Transitional Arrangement Directorate. The said letter instructs the deduction of check-off dues of retirees of federal government parastatals (including those from which the claimants retired); also federal establishments now privatized (which are operating the defined scheme); and private organizations.

 

12.              The claimants aver that their rights and privileges will be affected if the letter is implemented without their consent. The claimant aver further that the actions of the defendants in coercing them to join the 3rd defendant without their consent first sought and obtained is uncivilized, embarrassing, traumatic, unacceptable, illegal, unconstitutional, null and void.

 

13.              The claimants aver that the deduction of check-off dues as contained in the said letter will adversely affect the interest of the claimants, which has already caused the claimants psychological trauma and/or emotional torture.

 

The claimants tendered 2 documents in evidence in this suit which are:

 

a.      A printout of a WhatsApp message sent to the 1st claimant by the 3rd defendant-  Exhibit A.

b.     Copy of a letter dated 22/06/20220 with reference number ML ITU/ 30/VI/113- Exhibit B

 

 

 

CLAIMANT’S EVIDENCE:

14.              On 12/01/2024, the 1st claimant (CW1) adopted his written deposition on oath of 23/5/2022. CW1 in his evidence in chief re-stated the facts as contained in the statement of facts, which this court has keenly reproduced in this judgment. The 2 documents (Exhibits A and B) were tendered through the CWI.

 

15.              The CW1 ended his evidence in chief without any cross examination by the defendants, whereupon the claimant closed their case accordingly on the same day.  

 

16.               It need be reemphasized that these defendants had put up no appearance or pleadings in this suit. The defendants have not deemed it fit to defend this suit and they were duly and accordingly foreclosed after due time as reserved in the rules of this court was exhausted.

 

 

COURT’S DECISION:

17.              I carefully considered the entire processes filed in this suit, the testimonies given, and the evidence in this suit. The prevalent situation in this suit is one that falls under Order 35 of the Rules of this court, which makes provisions regarding default of pleadings. Rule 3 (2) provides as follows:

 

“where damages are to be ascertained and (sic) in all cases where declaratory reliefs are sought, the court shall set down the matter for trial”. (underlined for emphasis)

 

18.              It goes without saying that the situation does not derogate from the duty of the claimant to establish their claims. It must be born in mind at all times that in the current Nigerian jurisprudential dispensation an applicant/claimant in a civil suit is bound to discharge the onus probandi (i.e. burden of proof) and until he so does, the respondent/defendant may need not prove the contrary. Put differently, the litigant who alleges a breach of his right or his entitlement to any legal rights or remedies in a civil suit must succeed on the strength of his evidence. The required standard of proof is on the balance of probability. See section 131 & 135 of the Evidence Act 2011.

 

19.              The law is trite and long settled that a litigant who seeks declaratory reliefs shall only succeed on the strength of his own case and not on the weakness of the opposition. SEE: JUMEZ NIG. LTD. V. NWAKHOBA (2008) 18 NWLR (PART. 119) 361; EMENIKE V. PDP (2012) 12 NWLR (PART 1315) 556

 

20.              Hence, in line with the Rules of this court, this suit was set down for trial on 12/1/2024. Thus said, it is imperative to identify that the issue that suffices for determination for the purpose of this judgment is whether by the combined effect of the facts and evidence before this court, the claimants are entitled to the reliefs sought in this suit?

 

21.              I must iterate without fear of being monotonous that the claimants fielded a lone witness, the 1st claimant (CW1) who testified in chief and tendered exhibits A and B. The synoptic version of the evidence of the CW1 is that he and the 2nd claimant represent other retirees and also pensioners in the federal parastatals aforementioned in this judgment. They are all members of NUP.

 

22.              According to the CW1, giving the potency of exhibits A and B, the 1st and 2nd defendants purport to organize the claimants and all other persons who retired from the federal government parastatals(s), federal establishment now privatized (operating the defined benefit scheme), and private sector organizations into a newly registered body known as the Federal Parastatals and Private Sector Pensioners Association of Nigeria (FEPPPAN). It is also the evidence of CW1 that Exhibit B directed the Pension Transitional Arrangement Directorate to remit the deducted check-off dues of the claimants (which was hitherto remitted to NUP) to FEPPPAN. This development miffed the claimants to institute this action against the defendants.

 

23.              Paragraphs 11 and 12 of the CW1’s deposition on oath of 23/5/2022 state that exhibits A and B were differently sent to the CW1 by the 3rd defendant through his WhatsApp number: 0803*****66. Exhibits A and B are computer generated evidence, tendered by the claimants in compliance with section 84 of the Evidence Act 2011 and they were duly admitted by this court. Exhibit B is a copy of the letter from the office of the permanent secretary, Federal Ministry of Labour and Employment, dated 22/6/2020 and addressed to the Executive Secretary, Pension and Transitional Arrangement Directorate, and signed by William Alo for the Hon. Minister. For the purpose of clear emphasis, I reproduce the content of the body of Exhibit B hereunder:

 

“I am directed to refer to a letter No. FEPPAN/20/03/04 dated 6th March 2020 from the Federal Parastatals & Private Sector Pensioners Association of Nigeria (FEPPPAN) and to inform you that the Federal Parastatals & Private Sector Pensioners Association of Nigeria has been duly registered as a trade union of workers to organize all persons who have retired from any federal establishment now privatized (operating the defined benefit scheme), and private sector organizations.

 

2. Accordingly, the deducted check-off dues of the above stated pensioners are to be remitted to the Federal Parastatals & Private Sector Pensioners Association of Nigeria

 

3. Accept my warm regards”.

 

24.              The claimants claim that they are members of the National Union of Pensioners, a body that exists since 1978. It is their assertion, and rightly too, that they have the right to belong to a union or association of their own choice in accordance with Nigeria’s constitution.

 

25.              It must be added that the right to freedom of association is constitutionally enshrined, hence it merely states the obvious to emphasize that the claimants, and indeed all persons in Nigeria have the right to belong to lawful associations of their choice. I refer to section 40 of the Constitution of the Federal Republic Of Nigeria 1999 (as amended) 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 political party, trade union or any other association for the protection of his interest…”

 

26.              The Labour and the Trade Unions Act further consolidates this provision by providing for the right and freedom of persons to belong to trade unions without any intimation. Section 12 (4) of the Trade Unions Act states as follows:

 

“Notwithstanding anything to the contrary in this Act, membership of a trade union 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…”

 

 

27.              Furthermore, section 9 (6) of the Labour Act makes it explicit that no contract shall make it a condition of employment that a worker shall not join a trade union or shall relinquish membership of any trade union.

 

28.              On the subject of check-off dues of members of an association, the claimants herein aver that their check-off dues had often been deducted by the Pension Transitional Arrangement Directorate and remitted to the NUP. First on this, I wish to emphasize the position that the deduction of check – off dues is lawful and regulated by extant laws. Section 5(2) of the Labour Act states as follows:

 

“An employer may with the consent of an employee make deductions from the wages of the worker and pay to the appropriate person any contributions to provident or pension funds or other schemes agreed to by the worker and approved by the state authority”.

 

29.              Subsection (4) of the same section 5 further provides that 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 schedule 3 of the Trade Unions Act except if the persons concerned have accepted in writing, to make voluntary contributions to the trade union. Part B of Schedule 3 of the Trade Unions Act provides for senior staff trade associations. The claimants are retirees, and the main plank of the claimants’ grievance is that the defendants directed the remittances of their check-off dues to the 3rd defendant in whom they hold no membership.

 

30.              Flowing from the extant laws expounded hereinbefore, this court is inclined to hold the view without hesitation that the defendants jumped the gun by issuing exhibit B which sought to redirect the treasury of the claimants’ check-off dues from NUP to FEPPPAN without their consents. It is even more anachronistic to do so when the claimants are members of another trade union which serves the same purpose.

 

31.              Against the backdrop of the foregone and by virtue of the facts supported by evidence, I believe that the claimants have sufficiently proven their entitlement to the declarations sought in numbers 1 to 4 of the reliefs. They are hereby granted as sought. The sum of N2,000,000.00 is awarded as general damages.

 

32.              Finally, it must be emphasized that this suit first came up for mention before Hon. Justice K.J Amadi (Phd) on the 23/2/2021 and later before Hon. Justice P.A Bassi on 6/10/21, and finally before me on 12/1/2024. Throughout the 4-year judicial sojourn, the defendants remained uninterested, absent, and unrepresented despite evidence of service of processes and hearing notices on them as evidenced in the records of this court. The defendants’ attitude is both reprehensible and condemnable. It is unacceptable by this court.

 

33.              Judgment is entered accordingly.

 

DELIVERED THIS 24th DAY OF September 2024.

 

 

Mr. Justice I.S. Galadima,

Judge.

 

 

 

 

 

 

 

 

 

 

 

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