IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI DATE: MAY 17, 2019 Suit No: NICN/YEN/50/2018
CHIEF INKO NAMATEBE
WILLIAMS OGOR CLAIMANTS
(For themselves and as representing the Executive Members
of the Tricycle Owners Association of Nigeria (TOAN)
Bayelsa State Branch)
HON. GODWIN ADOKEME ----------------- DEFENDANT
Mr. Ndeze Anthony Esq for the Applicants.
Gibson Esowa Esq for the Respondent.
The Claimant commenced this action by an Originating Summons dated 13th day of December, 2018 and filed on the same date. The Originating Summons was supported by a 22 paragraphs affidavit sworn to by one John T. Alali. Attached to the affidavit are 7 Exhibits marked as Exhibits JUS A, JUS B, JUS C, JUS D, JUS E, JUS F, JUS F1. Also attached to the Originating Summons is a Written Address.
CLAIMANTS CASE IN BRIEF
The brief fact of the case as contained in the Claimants’ Affidavit in Support of the Originating Summons is that the parties are members of the Tricycle Owners Association of Nigeria (TOAN), while the Defendant is the Chairman of the Bayelsa State Branch and the Claimants are his co executive members of TOAN. That upon their inauguration several decisions were made by their National Executive as well as other decisions prescribed by their constitution but the Defendant was in consistent breach of all their decisions and provisions of their constitution and the prevailing Labour Laws.
The Claimants aver that some of the decisions which was blatantly breached by the Defendant is the act of printing illegal TOAN daily tickets and employing the services of none TOAN members to sell and remit the proceeds to him for his personal use and the Defendant has not remitted the dues due to their National Secretariat despite collecting same from the Branch Financial Secretary.
Also that the Defendant has personalized their branch office and used same for various political meetings. Upon confronted and investigated over, the Defendant was impeached as their Branch Chairman but the Defendant rather than respecting the said decision he resulted to threats, confrontation and harassment of the Claimants with officers of the Nigerian Police and boasting to commence the formation of a parallel executive of the Bayelsa State Branch of TOAN.
SUBMISSION OF THE CLAIMANT
The Claimants seek the determination of this Honourable court on the following question:
Whether by the resolution of 2/3 members of Tricycle Owners Association of Nigeria (TOAN) Bayelsa State Branch dated the 24th day of November, 2018 impeaching the Defendant is legal, valid and subsisting.
And if the said question is decided in affirmative, the Claimants pray this Honourable court for the following orders:
A DECLARATION that the resolution of 2/3 members of Tricycle Owners Association of Nigeria (TOAN) Bayelsa State Branch dated the 24th day of November 2018 impeaching the Defendant is legal, valid and subsisting.
A DECLARATION that the Claimants are the legitimate Executive Committee Members of Tricycle Owners Association of Nigeria (TOAN) Bayelsa State Branch.
AN ORDER restraining the Defendant from parading himself and any other persons as Chairman and Executive Members of Tricycle Owners Association of Nigeria (TOAN) Bayelsa State Branch.
The Learned counsel to the Claimant in the Written Address formulated the following issue for determination by this court as follows:
“Whether the impeachment of the Defendant is valid and subsisting.”
In his argument the Claimants’ counsel submitted that the Defendant having been impeached by 2/3 majority of its members after exhausting all laid down procedures pursuant to the provisions of the constitution of TOAN 2015 and all relevant Labour Laws is legal, valid and subsisting. He contends that it is trite that a Trade Union cannot achieve its purpose unless it is run in accordance with some rules and procedures. A Trade Union’s rules and procedure are embodied in its Constitution referred to as the Rules of the Union. He referred to the provisions of Section 4 of the Trade Unions Act which prescribes that it’s mandatory for every Trade Union to have registered rules.
It is his further submission that the constitution contains the terms of contract of union relationship, also governs the rights of members and contains provisions for disciplining erring members who are in breach of it. He referred to the case of NIGERIA CIVIL SERVICE UNION VRS ESSIEN (1985) 3 NWLR PT 12 @ 306. Learned counsel argued that the Claimants in paragraph 3 states that they were the state executive committee members with the Defendant before the Defendant was impeached for the continuous breach of their Constitution. Learned counsel referred the court to the provisions in paragraphs 1 – 5 of the TOAN Constitution 2015. And by the provisions of Rule 2 of the Claimants constitution shows that the constitution is supreme and shall be binding on all members, authorities and persons in all offices of the association and by Rule 2 (v), the union shall be governed only in accordance with the provisions of TOAN constitution.
Learned counsel argued that it was averred that the Defendant was the then Chairman of Tricycle Owners Association of Nigeria (TOAN) but engaged in the gross breach of their rules by engaging in the illegal printing of fake daily tickets and converting the proceeds to his personal use and conversion of their agreed weekly savings of N40, 000.00 to his personal use. He referred to EXT. JUS A & EXT. JUS B. He also argued that the Defendant collected monies to be paid to their National Headquarters of TOAN and Trade Union Congress (TUC) without remitting same. He referred to paragraphs 8 and 9 of the affidavits in support. He further argued that as averred in paragraph 10 of the affidavit in support the Defendant deducted the allowances of his Executive Committee Members for his personal use and also personalized their Branch Office for his personal use by hosting political meetings in same, and the Defendant is presently a full time politician as he is presently the Special Adviser to the Governor of Bayelsa State. Learned counsel contend that all these acts of the Defendant as averred led to his impeachment sequel to the provisions of Rule 19, Rule 20 (f) and Rule 26 of the constitution of TOAN 2015 after his suspension and subsequent motion to the effect in ratification of the verdict of the five-man committee. He referred the Honourable court to paragraphs 15, 16 and 17 of the affidavits in support and EXT. JUS D, EXT. JUS E and EXT. JUS F.
Learned counsel argued that the Defendant despite his impeachment has resorted to the issuance of threats and using the Police to harass and intimidate the Claimants and threatened to form a Parallel State Executive of the Tricycle Owners Association of Nigeria (TOAN), Bayelsa State Branch and his continuous parading himself as the Chairman of the Bayelsa State Branch of TOAN hence this application. Learned counsel submit that the impeachment of the Defendant as the Tricycle Owners Association of Nigeria(TOAN) Bayelsa State Branch Chairman consequent of his actions and pursuant to the provisions of Rules 19, 20, and 26 of the Tricycle Owners Association of Nigeria Constitution, 2015 is legal, valid and subsisting and he urged the court to hold so accordingly. Learned counsel referred the court to the Affidavit in Support and Exhibit attached, and the case of NIGERIA CIVIL SERVICE UNION VRS ESSIEN (SUPRA), and the provisions of section 15 of the Trade Unions Act.
Learned counsel submit that the Defendant’s continuous parading of himself as the Chairman of TOAN Bayelsa State Branch despite his impeachment is illegal and urged this Honourable court to so hold and grant the Claimants the reliefs sought in this application.
He concluded by urging the court to hold that the Defendant’s impeachment is legal, valid and subsisting and grants the Claimants the reliefs as sought.
THE CASE OF THE DEFENDANT
The Defendant filed his Memorandum of Appearance dated the 15th day of January, 2019, alongside his 57 paragraphs Counter Affidavit together with its annexures (Exhibits A – F) and a Written Address.
The Defendant in his Counter Affidavit which was deposed to by the Defendant averred that the Claimants’ action is false and misleading. He stated that he is the Chairman of the Tricycle Owners Association of Nigeria (TOAN) Bayelsa State Chapter and equally the National Vice President of TOAN South-South Zone, and the Claimants have been acting as members of the Executive Committee of TOAN Bayelsa State Chapter. He further stated that he is currently a Special Adviser to the Executive Governor of Bayelsa State and have been a politician before he became a member of TOAN and his political appointment has never in any way affected his functions as the Chairman of TOAN, Bayelsa State Chapter. He stated that the TOAN constitution does not preclude any member or non paid officer from taking up a political appointment. He denied printing any illegal TOAN ticket for his personal consumption. He further averred that sometimes in April 2017 the Claimants wrote a petition to the National Exco of TOAN containing several allegations of embezzlement against him, and the Claimants refused to wait for the outcome of their petition to the National Exco of TOAN before embarking on the alleged impeachment against him. He further stated that the alleged suspension letter of 5th November, 2018 attached as EXHIBIT JUS D was single handedly signed by the Secretary of the State Chapter (the 3rd Claimant) who is his subordinate. He stated that no State Congress held on the 24th of November 2018 or any other date and that no resolution was passed by 2/3 majority of the Congress removing him as the Chairman of Bayelsa State Chapter of TOAN. He stated that the Claimants are not representing TOAN, Bayelsa State Chapter and their conducts is actuated by malice, envy and greed.
THE SUBMISSIONS OF THE DEFENDANT
In the written address learned counsel on behalf of the Defendant formulated a sole issue for determination as follows:
“Whether the alleged impeachment of the Defendant is valid and subsisting.”
Learned counsel submit that the alleged impeachment of the Defendant by the Claimants is invalid, illegal, null and void. Learned counsel canvased the written argument under 3 sub headings as follows:
Whether the Claimants have proved the allegations against the Defendant to warrant his alleged impeachment.
Whether the purported impeachment of the Defendant is in accordance with the TOAN Constitution.
Whether the purported impeachment of the Defendant is in accordance with the rules of natural justice.
On whether the Claimants have proved the allegations against the Defendant to warrant his alleged impeachment. Learned counsel submits that from the Claimants’ affidavit it is clear that the Claimants are making allegations that are criminal in nature. According to the Claimants, it was due to the indictment of Defendant that led to his purported suspension and impeachment. He referred to paragraphs 5, 6, 7, 8, 9, 10, 11, 14 and 15 of the Claimants’ Affidavit in Support of Originating Summons. Learned counsel argued that the Defendant in his Counter Affidavit vehemently and specifically denied every criminal allegation labeled against him and every other allegation of infractions of the TOAN Constitution. He referred to paragraphs 20 – 31 of the Defendant’s Counter Affidavit.
Learned counsel submit that where the commission of a crime by a party to a civil case is directly in issue, the party alleging the commission of the crime must prove it beyond reasonable doubt. He relied on the cases of AKINKUGBE VRS E.H (NIG) LTD (2008) 12 NWLR (PT. 1098) P. 3752@ 395, PARAGRAPH F, ABUBAKAR VRS YAR’ADUA (2009) ALL FWLR (PT. 457) P. 1 @ 129, PARAGRAPH H. He submit that the Claimants did not prove beyond reasonable doubt the criminal allegations against the Defendant that will justify his purported suspension and subsequent impeachment, neither has the Defendant been tried before any court where his guilt was proved by the Claimants. He submits that the purported suspension and subsequent impeachment is baseless and frivolous.
On whether the purported impeachment of the Defendant is in accordance with the TOAN constitution. Learned counsel submits that the purported impeachment of the Defendant is not in accordance with the TOAN constitution which is EXHIBIT B attached to the Defendant’s Counter-Affidavit. It is provided in TOAN Constitution that the provisions of the Constitution is supreme and binding. He referred to Rules 2 (ii) (v) and (viii). He argued that every organization is bound by its own Constitution. He referred to A.P.C VRS KARFI (2018) ALL FWLR (PT. 942) P. 328. Learned counsel submits that the TOAN constitution expressly stipulates the procedures for the suspension and impeachment of an officer of TOAN. He referred to Rule 19 of the TOAN constitution. Learned counsel submit that the Claimants did not comply with the procedure for the suspension and impeachment of a TOAN officer.
Learned counsel argued that it is clear from the Claimant’s affidavit and the Defendant’s Counter Affidavit together with all the exhibits annexed that the alleged suspension and impeachment of the Defendant as the Chairman of TOAN Bayelsa State Chapter was not done by the State Congress. The State Congress is constituted by members of the State Exco, Chairmen, Secretaries and two representatives from each Branch. He referred to Rule 11 (xi) of TOAN Constitution. He argued that the alleged suspension letter of 5th November, 2018 attached as EXHIBIT JUS D was single handedly signed and issued by the Secretary of the State Chapter (the 3rd Claimant) and not by the State Congress. Learned counsel submit that the suspension of the officer concerned by the State Congress is a foundational step for a successful impeachment and non compliance with this provision makes all the impeachment process a nullity. This is because you cannot place an impeachment upon an illegal suspension and one cannot put something on nothing and expect it to stand. He relied on MACFOY VRS UNITED AFRICA COMPANY LIMITED (1961) 3 W.L.R.P 1405 AT P 1409, OWNERS OF THE MV “ARABELLA” VRS N.A.I.C (2000) ALL FWLR (PT. 443) P. 1208 @ 1229 PARAGRAPH F.
Learned counsel argued that the purported appointment of the Five Man Investigative Committee was not done by the State Congress and nothing is placed before this Honourable court to show that the purported report of the kangaroo Investigation Committee was laid before the State Congress and that same was endorsed by 2/3 majority of accredited chapter/registered members. Neither was anything place before the court to show that a motion for impeachment of the Defendant was moved in a State Congress and seconded on, and nothing is placed before this court to show that voting was conducted for the impeachment of the Defendant at any State Congress where in a 2/3 majority of votes cast by accredited chapters/registered members of the union voted in support of such impeachment. All these are in violation of the TOAN constitution.
Learned counsel submit that the alleged resolution passed on the 24th of November, 2018 as attached to EXHIBIT JUS F in the Claimants’ affidavit was done in an alleged executive meeting and not in a State Congress meeting, and it is clear from the TOAN Constitution that the impeachment of an officer cannot be done in an executive meeting but only in a Congress. He argued that the alleged list of persons who were allegedly present at the meeting as attached to EXHIBIT JUS F did not append their signatures to show that they are co-authors of the purported resolution and the purported resolution in EXHIBIT JUS F was not signed by any person as the maker which makes it a worthless document. He relied on the case of BELLO VRS SANDA (2012) ALL FWLR (PT. 636) P. 462 @ 480. He urged this Honourable court to consign the purported resolution passed on the 24th of November, 2018 as attached to EXHIBIT JUS F into the judicial dustbin as same is worthless in law.
Learned counsel argued that Rule 26 of TOAN constitution does not apply to this case because it deals with the discipline of members and not Officers of the Union. But assuming without conceding that Rule 26 of the TOAN Constitution applies in this case, the Claimants did not comply with the same provision of Rule 26. He referred to Rule 26 (2) (a) of TOAN Constitution.
Learned counsel submit that no disciplinary action was taken against the Defendant by the State Congress subject to the overriding approval of the central working committee. Learned counsel contend that the National President of TOAN in expressing his disapproval of the conduct of the Claimants wrote a letter re-affirming the position of the Defendant as the Chairman of TOAN Bayelsa State Chapter and another letter stating the correct position of TOAN constitution. Both letters are dated the 21st of December, 2018. Referred to Exhibits E & F attached to the Defendant’s Counter Affidavit. Learned counsel argued that the Defendant as the Chairman of the State Chapter called and presided over an emergency Exco Meeting on the 26th of November, 2018 to deliberate on the kidnap of some of their members and the Claimants were in attendance. The minutes of the meeting showing the attendance are as contained in EXHIBIT D attached to the Counter Affidavit. He submits that the purported suspension and impeachment of the Defendant is unlawful, null, and void for none compliance with the TOAN constitution.
On whether the purported impeachment of the Defendant was carried out in accordance with the rules of natural justice, learned counsel submit that the purported investigation of the Defendant by an alleged five man committee did not comply with the rules of natural justice. The same complainants were the same members of the alleged investigative panel who wrote a letter to National Body for the approval of their conduct. He referred to paragraph 39 and 46 of the Defendant’s Counter Affidavit. He argued that nothing before the court to show that the Defendant was issued with any invitation to appear before any TOAN investigative Committee to defend himself or served any Hearing Notice of the sitting of the Investigative Committee before the purported report of the five man committee was concocted. He relied on paragraph 41 of the Defendant’s Counter Affidavit. He argued that this amounts to lack of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Learned counsel contend that the position of the law is that any act done in violation of the sacrosanct rules of natural justice is a nullity. He relied on the case of OSHENAKE VRS GBINIJE (2005) ALL FWLR (PT. 289) P. 1270 @ 1292.
Finally, Learned counsel submit that the purported suspension and impeachment of the Defendant is unlawful, null and void and the Defendant remains the Chairman of TOAN, Bayelsa State Chapter and urged the court to refuse the reliefs sought by the Claimants and dismiss the Claimants’ Originating Summons.
CLAIMANTS’ FURTHER AFFIDAVIT
The Claimants filed a Further Affidavit dated the 5th day of February, 2019 alongside a Motion on Notice for Extension of Time within which to file and serve their 5 paragraphs Further Affidavit together with its annexures (EXHIBITS JUS G, JUS H, JUS H1, JUS I, JUS J) and a reply. The Motion was moved and granted on the 12th day of February 2019 and the Further Affidavit dated the 5th day of February 2019 and filed on the same date was deemed as properly filed and served.
In the reply to the Defendant’s Counter Affidavit and the Written Address, learned counsel contend that the Defendant having been investigated, confronted with the allegations of financial impropriety which he admitted to and pleaded for leniency, he was impeached after being suspended and a formal petition to that effect made to the Commissioner of Police, Bayelsa State Command for his investigation and prosecution. He referred to EXHIBIT JUS H1. Learned counsel submit that facts admitted need no prove. He referred to the case of ADIKE VRS OBIARERI (2002) 4 NWLR PT 758 RATIOS 6 & 7, SECTION 123 EVIDENCE ACT 2011. He further referred to EXHIBIT JUS F. Learned counsel argued that the Respondent was legally impeached and the impeachment is still subsisting. Learned counsel relied and referred the court to Rule 19, 26 of EXHIBIT JUS A1.
Learned counsel submit that the Defendant’s suspension and subsequent impeachment was pursuant to Rule 26 (1) as he converted the Union Office and properties to his personal use and printing its fake tickets and selling same for personal consumption. Learned counsel argued that the refusal of the Respondent to ventilate his grievance and or explore the constitutional provisions of Rule 26 (3) of the EXHIBIT JUS A1 clearly establishes his admittance of the allegations and sanctions meted out on him by the Union. Learned counsel submit that words in the statute must be given their literal meaning where same are not ambiguous as in EXHIBIT JUS A1 and urged the court to so hold and discountenance the submissions of the Defendant and grant the reliefs sought by the Applicants.
I have analysed the depositions contained in the Affidavit in Support and Counter Affidavits opposing same in the substantive suit. I have equally examined all the exhibits attached and have also read and understood the arguments of the learned counsel in support of their averments. I have concluded that the contention of the parties revolves or dwell principally on whether the suspension and impeachment of the Defendant upon a resolution of 2/3 of members of Tricycle Owners Association of Nigeria (TOAN) Bayelsa State Chapter is legal, valid and subsisting.
Before I go further, let me state here that this court is not sitting as an investigative panel nor as a committee set up to investigate the alleged infractions of the Defendant. But rather the only duty of this court simpliciter is to make pronouncement upon its findings on the proprieteness or otherwise of the decisions taken by either the Congress or executive members of TOAN on the 24th day of November, 2018 with regards to the suspension and subsequent impeachment of the Defendant from his position as the Chairman of the TOAN Bayelsa State Branch. This clarification is necessary due to the fact that from the averments in support of the Originating Summons and the Written Submissions of the learned counsel to both the Claimants and the Defendant, both counsel had invited this court to make a pronouncement as to the guilt or otherwise of the Defendant with regards to the seeming allegations made against the Defendant and this is not the duty of this court.
That said, in other to effectively and effectually determine this suit, I adopted the issue earlier formulated by both parties as the only issue for determination to wit:
Whether the impeachment of the Defendant as the Chairman of TOAN Bayelsa State Branch is legal, valid and subsisting.
The Defendant was initially accused of illegal printing of fake TOAN daily tickets and giving same to none members of TOAN to sell same for his personal benefits, he was also accused of converting the agreed savings of N40,000.00 monthly for the union, none remittance to the National Headquarters of TOAN and Trade Union Congress of monies meant as their share of the proceeds generated by TOAN Bayelsa State Branch, deductions of the executives members allowances for his personal use, using the TOAN State Office for his personal political meetings, accepting political appointment as a Special Assistant to the Governor of Bayelsa State and also accepting nomination as the National Vice President of TOAN, South - South. See paragraphs 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17 of the affidavit in support of the Originating Summons and EXHIBITS JUS A, JUS B, JUS D, JUS E and JUS F.
It was consequent upon these allegations that the Defendant was advised to proceed on indefinite suspension after making these series of allegations to the TOAN National Headquarters while a five man investigative committee was set up to investigate the allegations against the Defendant. The committee investigated the issue and the report of the said committee indicted the Defendant. And during the meeting of the union on the 24th day of November, 2018, the Defendant was impeached based on the report of the five man committee. And the National Headquarters of TOAN was notified about the impeachment of the Defendant as the Chairman, Bayelsa State Branch of TOAN. See paragraphs 15, 16, 17 and 18 of the Supporting Affidavit and Exhibits JUS D, JUS E, JUS F and JUS F1.
By the provision of Rule 2 (i) (ii) (iii) (v) (viii) of EXT JUS A1 (TOAN Constitution, 2015) the constitution is supreme. And its provisions shall be binding on all members and persons in all offices of the Association. And its also the basis of the contract between members and the union shall be governed only in accordance with the provisions of the constitution, and every member of the union is expected to respect and uphold the provisions of the TOAN constitution. See NIGERIAN CIVIL SERVICE UNION VRS ESSIEN (SUPRA).
The Claimants in their submissions had earlier stated that the Defendant was impeached pursuant to the provisions of Rules 19, 20 and 26 of TOAN Constitution 2015, and Section 15 of the Trade Unions Act.
It is of legal importance to note that the Defendant being him an executive member of the union can not be punished pursuant to Rule 26 of the TOAN constitution. That rule is solely meant for the discipline of erring members of the union. The Defendant can only be proceeded against with regards to his suspension or impeachment pursuant to Rule 19 of the constitution being him an executive officer of the association. Also section 15 of the Trade Union Act is not applicable in this case since there is nothing which tends to show that the Defendant used the money belonging to the union or dues to advance the cause of any political party or candidate; while Rule 20 (f) borders on non remittance of revenues collected on behalf of the union by a member of the union to the appropriate authority shall face a disciplinary action, but the rule did not state the appropriate sanction or punishment like impeachment or suspension to be meted out to an erring member. Therefore, for the purpose of this action, this court will confine itself to the provisions of Rule 19 of the constitution which is applicable to the instant case.
For the avoidance of doubt Rule 19 of TOAN constitution 2015 provides as follows:
“Any of the elected member found wanting in the discharge of his duties by Congress shall be suspended to allow for investigation by a five man committee to be appointed by the Congress.
… Where report of an investigation committee indicting an elected officer(s) is endorsed by 2/3 majority of accredited chapters/registered members of the union, a vote of no confidence shall be deemed to have been passed and the process of impeachment may begin. Motions of such impeachment(s) shall be moved and seconded by representatives of accredited chapter(s) or members present at a chapter congress.
The impeachment shall be by 2/3 of votes cast by the accredited chapters/registered members of the union.
… The NEC shall be the final deciding authority on all matters of suspension and impeachment of members.”
It is trite that where certain actions are to be taken, such actions must be undertaken in accordance with due process and the rules/regulations as prescribed by the laws governing such acts. See PSYCHIATRIC HOSPITAL MANAGEMENT BOARD VRS EJITAGHA (2000) 11 NWLR (PT. 677) PG 154; EKPEROKUN VRS UNIVERSITY OF LAGOS (1986) 4 NWLR (PT. 34) PG 162. And when the provisions of a statute is a clear and unambiguous, effect must be given to those provisions without recourse to any other consideration. See SHETIMA & ANOR VRS GONI & ORS (2011)18 NWLR (PT. 1279) PG 413.
That said, from the wordings in Rule 19 of TOAN constitution its only the Congress that has the power to suspend an elected member of the union found wanting in the discharge of his duties. And thereafter the Congress will now appoint a five man committee who will look into the allegations labeled against the said elected member. I have gone through all the exhibits attached by the Claimants (EXT. JUS A TO JUS F1), and what I was able to deduced is that on the 26th November, 2018 vide Exhibit JUS F there was a meeting of the executives of the union where the 1st Claimant (Chief Inko Nematebe) moved a motion suggesting that the Defendant should step aside so that the union can run effectively which one John Alali and Umunna Egedonti seconded the said motion. And thereafter, the same 1st Claimant (Chief Inko Nematebe) moved another motion for vote of no confidence and the impeachment of the Defendant as the Chairman of the TOAN Bayelsa State Branch which same was also seconded by John T. Alali and Umunna Egedonti and thereafter the Defendant moved a motion for adjournment and one British Adike seconded the said motion for adjournment. The meeting came to an end at about 02:44p.m. And at the foot end of EXT. JUS F a resolution of the meeting was noted down as follows:
“The meeting finally comes to an end at exactly 02:44p.m with the passing of vote of no confidence and the impeachment of Godwin Adokeme. Therefore the whole state executives in pursuant of their constitutional right has deemed to impeach/remove Hon. Chief Godwin Adokeme as Bayelsa State Chairman.”
Furthermore, by looking at the attendance of the meeting the names that appeared on it are the names of the executive members of TOAN Bayelsa State. From the above, one can see that the Defendant was suspended and impeached at the executive meeting held on the 26th November, 2018. And by EXT. JUS D captioned “indefinite suspension” dated 5th November, 2018 which was signed by one Comrade Sir Williams Ogor (State Secretary) TOAN Bayelsa State, one can see that the Defendant by that letter was suspended even prior to the executive meeting held on the 26th November, 2018.
Also, in the report of the five man committee dated 19th November, 2018 where the defendant was indicted, I am inclined to say that three out of the five members of the investigative panel, (Comrade Umunna Egedonti (Vice Chairman) Comrade Williams Ogor (Secretary) and Chief Inko Namatebe Treasurer) were the same people who wrote the petition that necessitated for the establishment of the said investigative panel. In other words, they raised the allegations in a letter dated 6th April, 2017 to the National President of TOAN, and they also became members of the investigative panel. They served as accusers and judges in their own case which negates the principle of NEMO JUDEX IN CAUSA SUA (you can not be a judge in your own case) and the provisions of section 36 of 1999 constitution. No wonder it was based on all these discrepancies that the National President of TOAN, one Comrade Augustine Agbo Apeh wrote Exhibit E and F outlining all these discrepancies. And the argument canvassed by the learned counsel to the Claimants that the said National President TOAN was removed because he was shielding the Defendant can not serve as a sword for this court not to consider Exhibits E and F. This is because he wrote the said documents while in his official capacity as the National President of TOAN.
Furthermore, the position of the law is that even an administrative or domestic tribunal is bound to observe the principles of fair hearing. See N.E.P.A VRS ANGO (2001) 15 NWLR (PT. 737) 627 where the court held;
“It is agreed that some latitude or laxity must be permitted when persons not versed in the intricacies or technicalities of law are empanelled to deal with issues of law but it is not only in law but also morally wrong to shut out the person accused from the room of trial and later use the material obtained behind his back to find him liable. Fair hearing, even before an administrative or domestic tribunal, was held by the Supreme Court in Y.A GARBA & ORS. VRS UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550, 617 and 618 to imply the rights of the respondent to know what and what are being urged against him, what evidence or statements had been made concerning him and is entitled to the opportunity to correct or challenge them, meaning that the tribunal must not receive evidence behind his back.” See also OLATUNBOSUN VRS NISER (1988) 3 NWLR (PT. 80) 25, cited in the appellant’s brief.”
At page 52 of the report, the Supreme Court said that:-
“The right to a fair hearing will only arise where there is an allegation of misconduct which may result and in fact did result in some form of punishment, deprivation of some right or loss of means of livelihood to the appellant....in such a case, it is equally vitally important that the appellant be given ample opportunity to defend his conduct.”
Accordingly, I find that the Defendant was entitled to be informed of what was the accusation against him; he is entitled to know what evidence or statements had been made against him by who; he is entitled to an opportunity to correct or challenge them; that the disciplinary panel shut out the Defendant from the room of trial and later use the material obtained behind his back to find him guilty.
Furthermore, EXT. JUS F1 which represents the resolution of the meeting held on the 24th November, 2018 where the Defendant was impeached, one can see that by Rule 19 of the TOAN constitution (EXT. JUS 1), one can see a list of about 197 names which same names did not signed the said document signifying their consent. This signifies that the document was not co-authored by them. And its trite an unsigned document is a worthless piece of paper. See BELLO VRS SANDA (SUPRA). And the Claimants failed to inform this court the total number of members of the Bayelsa State Branch so as to ascertain what number constitutes the 2/3 of the members of the congress. And its not the duty of this court to go on voyage of discovery so as to fish evidence. See
I also wish to state that EXT. JUS 1 2J and JUS J 2M all dated 28th January, 2019 were made during the pendency of this trial and as such offends the provisions of section 83 (3) of the Evidence Act 2011 (as amended) and as such the said documents are hereby discountenanced forthwith. I so hold.
Assuming but no conceding to the fact that proper procedure was followed in impeaching the Defendant, according to Rule 19 of EXT. JUS 1 the NEC shall be the final deciding authority on all matters of suspension and impeachment of members.
And there is no any evidence to show that there was such ratification by NEC on the impeachment of the Defendant. EXT. JUS J 2M which was rejected by this court emanated from central working committee and not NEC.
Finally, the provisions of Rule 19 of EXT. JUS 1 is self explanatory, there are discrepancies showing that the Defendant was suspended prior to the meeting where decision was taken to suspend him as evidenced in EXT. JUS D and JUS F. And there is nothing to show that the Defendant was actually invited to appear before the five man investigative committee and state his own side of the story, which is fatal. See MIAPHEN VRS UNIVERSITY OF JOS CONSULTANCY LTD (2013) LPELR – 21904 (CA); A.G KWARA STATE VRS ABOLAJI (2009) 7 NWLR (PT. 1139) PG 199 AT 212; SECTION 36 of 1999 constitution (as amended). The suspension and subsequent impeachment of the Defendant was carried out at an executive meeting. The five man investigative committee was set up by the executives who in turn nominated themselves as members of the committee and they were the same set of people who made all the accusations against the Defendant, the outcome of their investigation (report) indicting the Defendant was not ratified or endorsed by 2/3 majority of the registered members of the union. No motion was moved at the Congress meeting for the impeachment of the Defendant and the Defendant was not impeached by the 2/3 of the vote cast by the registered members of the union. And there is no any evidence of ratification by the NEC affirming the impeachment of the Defendant.
In my candid opinion the Claimants failed to comply with the mandatory provisions of Rule 19 of EXT. JUS 1 governing the procedure of suspension and impeachment of the Defendant. And I have perused EXT. JUS 1 and there is no any provision which forbids the Defendant from venturing into politics or accepting an appointment as the Special Assistant to the Governor or doubling as the National Vice President South-South. As a way of advice, TOAN was registered as a Trade Union barely three years ago, the executives who are supposed to join hands together so as to nurture the union to attain an emiable height by competing with other transport related unions, are at each other’s neck which is not healthy and negates the spirit and principle of trade unionism. I urged all the warring parties to join hands on deck and forge ahead.
In view of the reasons enumerated ab-initio I have no difficulty in resolving the lone issue for determination in favour of the Defendant and hold that the suspension and the subsequent impeachment of the Defendant without recourse to the procedure stipulated in Rule 19 of the TOAN constitution (EXT. JUS 1) was ultra vires and therefore null and void and of no effect whatsoever. The said suspension and subsequent impeachment is hereby set aside. The case of the Claimants is hereby dismissed.
I declined to award any cost. I so hold.
Judgment is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI