IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP HON. JUSTICE M.N. ESOWE
DATED: 16TH OCTOBER, 2019 SUIT NO: NICN/CA/58/2016
NIGERIAN UNION OF PENSIONERS …………. CLAIMANT
1. THE ATTORNEY GENERAL AND COMMISSIONER
FOR JUSTICE, CROSS RIVER STATE
2. REGISTERED TRUSTEES OF CROSS RIVER STATE DEFENDANTS
LOCAL GOVERNMENT PENSIONERS
CHIEF ONYEBUIKE, F.O Esq. for Claimant
IKOI E. IKONA Esq. for 1st Defendant
VICTOR EDIM Esq. for the 2nd Defendant
This suit was instituted by an Originating Summons, dated and filed on the 23rd December, 2016, it was amended on the 19th of June, 2017 and filed same day. The Claimant sought the determination of the following questions:
1. Whether the advice of the 1stDefendant as contained in the letter of 24thday of October, 2016 to the Local Government Pension Board overrides the statues and the judgments in NICN/CA7'82/2014, NICN/CA/11/2015 and NICN/CA/4/2016.
2. Whether such an advice is not in contempt of the judgment and orders as mentioned above and with a view to rubbishing the aforesaid judgments.
3. Whether a legal advice can be used to set aside a judgment of a Court.
Whereof the Claimant claims from the Defendants as follows:
a. A declaration that the legal advice as contained in the 1stDefendant's letter of 24th day of October, 2016 to the Local Government Pension Board is in utter disregard to the statues in respect of payment of check-off dues and the decisions/judgments in Suit Nos. NICN/CA/82/14, NICN/CA/11/15 and NICN/4/2016.
b. An order of Court restraining the 2ndDefendant from relying on the 1st Defendant legal advice as such a legal advice is highly condemnable and contemptuous.
SUMMARY OF FACTS
It is the Claimant’s case that it obtained judgment in its favour in suit NICN/CA/4/16 where it was declared that check off dues should be paid to the Claimant only. However, the 1stDefendant in this instant case wrote a legal advice to the Local Government Pension Board advising the board not to pay check off dues to the Claimant. The Claimant believes that the said letter is highly contemptuous hence, the relief sought in this suit.
AFFIDAVIT IN SURPORT OF CLAIMANT’S ORIGINATING SUMMONS
In support of the Originating Summons is a 12-paragraphed Affidavit, deposed to, by Comrade E. B. Ettah, a member of the Claimant.
The gist of the affidavit in support of originating summons is that the Claimant is a registered trade union and the 2nd Defendant which is a breakaway fraction of the Claimant formed an association under the Company’s Act and tried to corner off check off dues meant for the Claimant.
That the 1st Defendant wrote a legal advice on the 1st of November 2013 which was in favour of the 2nd Defendant. That based on this legal advice, the 2nd Defendant brought an action at the National Industrial Court in Suit No: NICN/CA/82/2014 and the action was dismissed whereby Court held that check off dues are meant for members of a trade union.
The Defendant also took action in Suit NICN/CA/11/2015 where the legal advice dated 1st November, 2013 was used, the said suit was dismissed for being incompetent and constituting an abuse of Court process.
In 2016, the Claimant obtained judgment against the 2ndDefendant in NICN/CA/4/16 where it was declared that check off dues should be paid to the Claimant and not the 2ndDefendant.
However, the 1stDefendant wrote a letter to the Local Government Pension Board directing the board not to pay check off dues to the Claimant. The Claimant believes that the said letter is highly contemptuous hence, the relief sought.
WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS
In compliance with the Rules of this Court, Claimant also filed a Written Address in support of the Originating Summons. Counsel on behalf of Claimant formulated a sole issue for determination, that is:
Whether the letter of 24th October, 2016 to the Local Government Pension Board by the Defendant overrides the statutes in NICN/CA/82/14, NICN/CA/11/15 and NICN/CA/4/2016
Learned Counsel to the Claimant submitted that a legal advice by the office of the Defendant cannot override a statute or judgment of a Court. He stated that the letter dated 1/11/2013 from the office of the 1stDefendant was made before the judgment in NICN/CA/82/14, NICN/CA/11/15 and NICN/CA/4/16, yet the 1stDefendant reaffirmed and maintained its stand by a letter dated 24/10/2016.
Learned Counsel argued that the 1stDefendant was a party in suit NICN/CA/11/15 where the letter dated 1/11/2013 was considered and suit was dismissed.
He also submitted that the legal advice dated24/10/2016 purports that an appeal has been file against the judgment in suit, and somewhat suggests that the appeal operates as a stay of execution; however, on the contrary, an appeal is not a stay of execution.
He further submitted that it can be deduced from the letter that its motive is to rubbish the judgment of this Court.
1ST DEFENDANT’S COUNTER-AFFIDAVIT OPPOSING CLAIMANT'S ORIGINATING SUMMONS
The 1st Defendants, upon receipt of the Claimants Originating Summons, filed a 5-paragraph Counter Affidavit dated the 28th of September, 2017 and deposed to by EDET OKPO ENI, a Litigation Officer in the Department of Civil Litigation, Ministry of Justice, Calabar.
The summary of the 1st Defendant’s affidavit is that the letter dated 1st of November 2012 was not given in favour of any party and that the said letter was not written to disregard the judgment of the Court. The Defendants further stated that an appeal was filed on the 14th day of July, 2016 against the judgment obtained in NICN/CA/04/16 and that the 11th Defendant in suit NICN/CA/4/2016 was never served with the originating process.
WRITTEN ADDRESS OF THE 1ST DEFENDANT IN SUPPORT OF COUNTER AFFIDAVIT OPPOSINGORIGINATING SUMMONS
A Written Address in support of the Counter Affidavit opposing the Originating Summons was also filed in accordance with the rules of this Court.
The 1st Defendant formulated3 issues for determination:
1. Whether the letter dated the 24th day of October 2016 was written in contempt of the judgments of this court in suit nos NICN/CA/82/14, NICN/CA/11/15 and NICN/CA/4/16.
2. Whether given the contentious nature of the dispute, an originating Summons is the proper process to have used to commence this suit.
3. Whether the suit amounts to an abuse of court process.
ON ISSUE 1: Whether the letter dated the 24th day of October 2016 was written in contempt of the judgments of this court in Suit Nos NICI/CA/82/14, NICN/CA/11/15 and NICN/CA/4/16.
Learned Counsel submitted that the letter dated 24th October, 2016 was not written to override or disregard the judgment of this Court. Rather, it was written to notify the Local Government Pensioners board of the existing appeal against the judgment delivered in suit NICN/CA/4/2016 and also that the record of appeal has been transmitted and an application for stay of execution has been made. Relying on the case of Denton-West V. Muoma (2008) 6 NWLR (pt. 1083) 418 @ 450 para E Counsel to the Defendants submits that since there is an application for stay of execution before the appellate court, status quo ought to be maintained.
ON ISSUE 2: Whether given the contentious nature of the dispute, an originating Summons is the proper process to have used to commence this suit.
Learned Counsel submitted that an action must be initiated by due process before a Court can be said to have jurisdiction to entertain the matter. He placed reliance on Order 3 Rule 1, Order 29 Rul2 2 of the National Industrial Court Rules 2007.
He further submitted that where facts are in dispute, an originating summons should not be used to initiate an action, he referred the Court to that case of Famfa Oil Limited v. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453
ON ISSUE 3: Whether the suit amounts to an abuse of court process.
Counsel to the 1stDefendant submitted that abuse of court process is not limited to commencement of multiplicity of action on same subject matter. It could also arise where there is no law supporting a court process or where it is premised on frivolities. He referred the court to the case of Denton-West v. Muoma supra where the court held that:
I am therefore of the opinion that the appeal having been entered in this court, any complaint regarding steps taken towards the enforcement of the judgment appealed against could only be ventilated in this court.
He therefore urged the Court to dismiss this suit.
2ND DEFENDANT’S COUNTER AFFIDAVIT IN OPPOSITION TO CLAIMANT’S ORIGINATING PROCESS
In opposition to the Claimant’s process, 2nd Defendant deposed to a 12-paragraph affidavit on the 26th of September, 2017 with 4 exhibits attached and a written address in compliance with the rules of this Honourable Court. The said affidavit was deposed to by one Ntol C. Nkom who identified himself as Vice Chairman of the 2nd Defendant.
SUMMARY OF 2ND DEFENDANT’S COUNTER AFFIDAVIT
The gist of the counter affidavit is that the 2nd Defendant, that is, Registered Trustees of Cross River State Local Government Pensioners, is registered under Part C of CAMA which has over 500 members. 2nd Defendant does not collect check-off dues but monthly dues.That the decision of the Court in NICN/CA/4/2016 canvased by the Claimant herein has been appealed against.
2ND DEFENDANT’S WRITTEN ADDRESS
In 2nd Defendant’s written address dated and filed 26th September, 2017, Learned Counsel to 2nd Defendant formulated three (3) issues for determination:
1. Whether the advice of the 1st Defendant contained in the letter of 24th day of October, 2016 to the Local Government Pension Board overrides the statutes and the judgments in NICN/CA/82/2014; NICN/CA/11/2015 and NICN/CA/04/2016
2. Whether such an advice is not contempt of the judgment s and orders as mentioned above and with a view to rubbish the said judgments
3. Whether a legal advice can be used to set aside a judgment of a Court.
ON ISSUE 1: Whether the advice of the 1st Defendant contained in the letter of 24th day of October, 2016 to the Local Government Pension Board overrides the statutes and the judgments in NICN/CA/82/2014; NICN/CA/11/2015 and NICN/CA/04/2016
Learned Counsel to the 2nd Defendant submitted that the judgments above have been appealed against. Therefore, the judgments being appealed against are ineffectual until the appeal is determined. In this vein, the letter of the 1st Defendant dated 24/10/2016 to the Local government Board was to avert levying of execution of judgment that is a subject of appeal.
ON ISSUE 2: Whether such an advice is not contempt of the judgment s and orders as mentioned above and with a view to rubbish the said judgments
Learned Counsel to 2nd Defendant, while relying on the Oxford Dictionary definition of contempt, urged the Court to hold that this Court became functus officio on delivering judgment and that the 1st Defendant advising on the judgment appealed against and averting the Claimant from levying execution of judgment; a judgment that has been properly appealed against; and records of appeal entered at the registry is not contemptuous of Court.
ON ISSUE 3: Whether a legal advice can be used to set aside a judgment of a Court.
Learned Counsel to 2nd Defendant/Respondent submitted that a Court can set aside its judgment same way a superior record can. However, a legal advice cannot set aside a judgment of Court but can be used to stall or avert execution of judgment already appealed against.
He therefore urged the Court to dismiss this case.
Having gone through the Claimant’s case, 1st and 2ndDefendants’ defence and the written submissions of all Counsel, the Court, while adopting all the issues raised by all Counsel, has distilled a sole issue for determination, to wit:
Whether the Claimant has proved its case to be entitled to the reliefs sought.
Having adopted issues formulated by Counsel, this Court shall address, when necessary, in the body of its judgment. Furthermore, it is worthy to note that on the date parties adopted their processes before Court, 2nd Defendant’s Counsel was not in Court to adopt their process. Given the circumstances, the Court will deem their processes in the Court file adopted and make reference to same when necessary.
The main claim of the Claimant is that the 1stDefendant issued an advice to the 2ndDefendant which in the view of the Claimant is contrary to the judgment of this Court in suits NICN/CA/82/2014, NICN/CA/11/2015, and NICN/CA/04/2016.
The brief background of this case is that the Claimant in this instant case obtained judgment in its favour in suit NICN/CA/82/2014 where the main claim of the Claimant in that suit (i.e. Registered Trustees of Association of Cross River State Local Government Pensioners) was the collection of check-off dues and freedom of association.
The Court held in that suit that “I agree with the 1stDefendant that the Claimants do not have the requisite competence or locus standi to approach this Court for the reliefs they seek. Check-off dues have been held to be exclusive right of trade unions. The Claimant not being a trade union cannot expect to be permitted to claim the attributes of a trade union.”
In NICN/CA/11/2015, a group of persons instituted a suit on behalf of Cross River State Local Government Pensioners basing its claim on the same subject matter already decided in suit NICN/CA/82/2014 by this Court. The Court held that the suit was incompetent and constituted an abuse of Court process. It was therefore dismissed.
In NICN/CA/04/2016, the Nigeria Union of Pensioners (Claimant in this instant suit) brought a suit before this Court praying for the following:
i. A declaration that the collection of check off dues by the 1st and 10thDefendant and not being a trade union is in utter violation of the provisions of the provisions of 2(1) and 45 of the trade union Act and the findings and judgment of this Court in NICN/CA/82/2014 and NICN/CA/11/2015.
ii. An order of the Court to the 1st-1oth Defendants or any member of cross river state local government pensioners to give account and refund the check off dues already collected from the local government pension board in violation of the provision of the trade union act and the judgment of this Court in NICN/CA/82/2014 and NICN/CA/11/2015.
iii. Perpetual injunction restraining the 1st-10thDefendants from further collecting check off dues from the 11thDefendant an injunction restraining the 11thDefendant from further paying check off dues from the 1stDefendant or to any other person other than the Claimant.
The Court in its judgment in suit NICN/CA/O4/2016 ordered as follows:
i. It is hereby declared that the collection of check off dues by the 1st – 10thDefendants or any other person not being a trade union is utter violation of the provisions of 2(1) and 45 of the Trade Union Act.
ii. The 11thDefendant is hereby restrained by order of this Court from further paying check off dues to the 1st-10thDefendant or to any other person other than the Claimant.
For emphasis sake, the 11thDefendant in suit NICN/CA/04/2016 is the Local Government Pension Board and the judgment was delivered on the 12th of July, 2016.
It is settled law that orders of a Court of competent jurisdiction must be obeyed as long as it subsists. It is obligatory that the obedience of an order of Court must be total and not partial. See Oshiomole V. F.G.N. (2005) 1 NWLR (Pt 907) p. 414.
By the records of this Court, the 2ndDefendantin this instant case, despite the judgment in NICN/CA/04/2016, wrote a letter to 1stDefendant (i.e. the Attorney General) dated 14th of October 2016 requesting for advice relating to the judgment in the aforementioned suit.
The 1stDefendant in reply to the said letter referred the 2ndDefendant to its letter dated 1st of November 2013. The summary of said the letter is that the Pensioners were protesting and requesting that deductions of their check off dues be paid to Association of Cross River State Local Government Pensioners rather than the Nigeria Union of Pensioners. The 1st Defendant concluded the letter by advising that “the practice of deducting check-off dues from pensions in the State and Local Government Pensioners does not have any legal backing and should be discontinued. Pensioners that belong to any association should pay their dues to the Association outside the mechanism of compulsory deduction.”
I am minded to state that even though the letter dated 1st November 2013 was written before any of the judgments of this Court earlier considered, the 1stDefendant upheld the content of the said letter in a subsequent letter dated 24th of October, 2016, where it reiterated that there is no instrument, legal or administrative in force in the state authorizing deduction of check off dues from pensioners stipends.
The letter/legal advice further listed conditions to consider before the judgment in suit NICN/CA/04/2016 could be complied with. The conditions are hitherto listed below:
i. The said judgment did not set aside the advice of the learned attorney general dated 1st of November, 2013. The advice is still subsisting.
ii. The State government was not joined as a party to that suit, was not aware of the pendency of the suit and was not heard before judgment was delivered in the suit.
iii. The Local Government Pensioner, listed as the 11thDefendant, was not served with the originating processes in the matter to defend itself and your board did not also notify the Attorney General before the judgment was given on the 12th of July 2016.
iv. There is an appeal against the judgment of 12th of July 2016 under reference filed on the 14th of July 2016 by Bassey B. Okosinand others and a motion was filed for stay of execution of the said judgment.
v. The record of the pending appeal have been complied and transmitted to the Court of Appeal, Calabar for adjudication.
vi. The Nigerian Union of Pensioners has written to the Attorney General through their counsel F.O. Onyebueke for payment of the check off dues to them and we advise them to wait until the pending appeal is determined.
The 1stDefendant concluded by advising that status quo be maintained and that check off dues be paid to the 2ndDefendant until the determination of the pending appeal (underlining mine for emphasis sake)
This advice to my mind is a gross disregard to the decision of this Court in suit NICN/CA/04/2016 which specifically ordered that check off dues be paid to no other party except the Claimant in this instant suit. The judgment of a competent Court must be carried out as specified by the words in its order unless and until such a decision is set aside by another Court of appellate jurisdiction or a stay of execution of such a decision has been granted; this is not only desirable but necessary.
When a party is displeased by the decision of a competent Court, such party by virtue of the Constitution of the Federal Republic of Nigeria 2011 (as amended) has a right to appeal. It is settled law that an appellate Court has the duty to set aside a perverse finding, judgment or decision of a lower Court see the cases of Lawal V. Dawodu (1972) 8 and 9 SC p. 83 at pages 114-117; Ayanru V. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) p. 462 at p. 479.
Flowing from the above, the 1stDefendant does not have the requisite authority to interpret or decide the extent to which the judgment of this Court is to be complied with. Indeed, the act in itself is ultra vires of the duties assigned the 1stDefendant by the constitution which is the ground norm of the country.
On the position of the 2nd Defendant that the members of the 2nd Defendant are over 500 and what they collect is not check-off dues but monthly dues, this Court wishes to state that the freedom of association envisaged by the 1999 Constitution is not freedom to take money legally assigned to another body. Check-off dues are not for companies registered under Part C of the Company and Allied Matters Act but Union registered under the Trade Union Act. If the 2nd Defendant wants to collect what it termed monthly dues, such cannot be collected from the salaries of the affected persons at source as it is being done in the case herein. Such money does not even have to involve the 1st Defendant as it is in this case; such money ought to be voluntary contribution of members and not deduction from their salaries as it is being done in this case. The 2nd Defendant should wait for her members to come pay the dues themselves and not turn what is supposed to be deducted at source as check-off dues to the monthly dues of its members, and I so hold.
In Part B of the third Schedule, number 24 of the Trade Union Act, Chapter T14 LFN 2004 it is provided thus:
Nigeria Union of Pensioners: Area of Jurisdiction
All pensioners from the civil service of the federation including local government, statutory corporations, government owned companies, educational institutions for which the Government of the federation is responsible. All such similar establishments. Also private sector pensioners.
The Act itself having included all pensioners under the jurisdictional scope of the Claimant has robbed any pensioner of electing to be or not to be a member, and I so hold. In this regard, the only person(s) who can elect to be or not be a member in line with Section 12(4) of the Trade Union Act are those who no longer qualified as pensioners, and I so hold. In this sense, membership of the 2nd Defendant does not rob the Claimant in this case from collecting the Check-off dues of such members inasmuch as they are pensioners.
Be that as it may, the subject matter of the case of the Claimant herein is not about the voluntariness or involuntariness of the members of the 2nd Defendant to be members of the Registered Trustees of Cross River State Local Government Pensioners but about the subsisting judgments of this Court which the Defendants are yet to comply with. In this regard, it is only the arguments of Counsel to 2nd Defendant on the compliance or non-compliance of the subsisting judgments of this Honourable Court that are relevant to the suit herein.
The arguments of the Learned Counsel to the 2nd Defendant on the subsisting judgments of this Honourable Court in Suit Nos NICN/CA/82/2015; NICN/CA/11/2015 and NICN/CA/4/2016 is that the said judgments have already been appealed against and the advice of the 1st Defendant is to stall or avert the levying of execution of a judgment already appealed against. Whatever Learned Counsel to 2nd Defendant meant, this Court cannot see a copy of the Court of Appeal staying the execution of the judgment of this Honourable Court delivered in the suits mentioned above. Therefore, any action of the 1st Defendant to stall or avert as referred to by Counsel to 2nd Defendant are acts which can only be carried out by those who have no respect for the Court, which by the very nature of such acts, are in contempt of the Court. As far as the Court of Appeal is yet to set aside the judgments of this Court giving rise to this proceeding, the judgments of this Court in Suit Nos NICN/CA/82/2015; NICN/CA/11/2015 and NICN/CA/4/2016 still remain, subsist, valid, and I so hold
Furthermore, the 1stDefendantalso stated numerous times in their process that an appeal has been entered and records have been compiled and transmitted to the Appellate Court. I have painstakingly gone through the records of this Court and there is nothing in the records to show that an Appeal has, indeed, been validly entered or there is an application for stay of execution of the judgment in suit NICN/CA/04/2016 which was moved and granted whether by this Court or the Appellate Court. I am minded to state that this Court is a Court of records and is bound by its records; likewise, it is trite that the law has no room for speculations and does not rely on it. It behoves the Defendants who are asserting that there is an appeal, a valid one at that, to prove same before me. It is not enough for them to just say it. Thus, in the absence of any proof of a valid appeal, this Court cannot help but discountenance the arguments of Counsel to the 1st and 2nd Defendants on this head, and I so hold.
On whether an originating Summons is the proper process to have used to commence this suit, it is trite that the originating summons procedure is a means of commencement of proceedings where facts are not in dispute or the sole question is one that has to do with the construction of a written law, constitution, will, deed or any document. In Famfa Oil Limited v. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453 the Supreme Court held that:
The very nature of an originating summons is to make things simpler for hearing, it is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest.
In the instant case, a look at the subject matter and the reliefs sought by the Claimant shows that it seeks a construction of the letter dated 24th of October 2016as it relates to the judgment of this Court in suit Nos NICN/CA/82/2014, NICN/CA/11/2015 and NICN/CA/04/2016 and for a declaration that the said letter is in disregard and contemptuous to the judgment of this court. This in my view falls within the ambits of matters that can be commenced by the originating summons procedure, and I so hold.
For all that have been said above, this Court holds that the letter dated 24th of October 2016 is in disregard to the decision and order of this Court in suit Nos NICN/CA/82/2014, NICN/CA/11/2015 and NICN/CA/04/2016. The said letter is hereby considered to be contemptuous to the authority of this court.
Consequently the suit of the Claimant succeeds as follows:
RELIEF 1 Succeeds
RELIEF 2 Succeeds.
For the avoidance of doubt, the orders/declarations of the Court are as follows:
1. THE COURT HEREBY DECLARES that the legal advice as contained in the 1st Defendant's letter of 24th day of October, 2016 to the Local Government Pension Board is in utter disregard to the statutes in respect of payment of check-off dues and decisions in NICN/CA/82/14, NICN/CA/11/15 and NICN/4/2016.
2. THE COURT HEREBY MAKES AN ORDER restraining the 2nd Defendant from relying on the 1st Defendant legal advice as such legal advice is highly condemnable and contemptuous
Judgment is entered accordingly.
HON. JUSTICE M.N ESOWE