A National Industrial Court (NIC) judgment delivered by the Honourable Justice Sanusi Kado on 25th October, 2019 has continued to resonate by unsettling the Nigeria Civil Service Union (NCSU), Nigeria’s acclaimed oldest trade union which was founded in 1912.
Order than the amplification of a 1st of November 2018 ruling which nullified the union’s Delegates’ Conference held on the 25th and 26th January 2018, there was no profound pronouncement in the October 25th judgment which should rattle the union.
Although the Comrade Lawrence Amaechi leadership of NCSU which inherited the case from the Comrade Kiri Mohammed Presidency of the union, has appealed the judgment to the Court of Appeal, there is still a great deal of uncertainty facing the NCSU in the event of the appellate court upholding decision of the NIC.
The NIC had barely three weeks ago, on May 14, 2020, thrown out an application for stay of execution of the ruling and judgment filed before it by the NCSU for lack of jurisdiction, further stressing the Amaechi leadership and putting the entire membership of NCSU in a quandary.
While the litigation is likely to endure even to the apex court notwithstanding the outcome at the Court of Appeal, National Record findings reveal that head or tail, peace is unlikely to return to NCSU’s fold without serious intervention from the Nigeria Labour Congress along with its key affiliate unions and other stakeholders in the trade union movement.
A source, who pleaded anonymity, told National Record that no court decision will enforce peace in the union. The source said peace can only come through a process of dialogue mediated by the NLC and other strong unions by bringing the factions in the crisis together to find a common solution to the disagreement.
The case began on January 27, 2016 when two members of the NCSU, Comrade Benson Ekasa and Comrade Menele Ziadam Nzidee (1st and 2nd claimants respectively) approached the National Industrial Court in Abuja with a number of prayers which can be summarised into five. However, before the beginning of hearing, there were objections from the defendants on the mode of proceeding, which the court granted and the matter commenced fully on 10th July, 2017.
The Origin of the Litigation
The case began on January 27, 2016 when two members of the NCSU, Comrade Benson Ekasa and Comrade Menele Ziadam Nzidee (1st and 2nd claimants respectively) approached the National Industrial Court in Abuja with a number of prayers which can be summarised into five. However, before the beginning of hearing, there were objections from the defendants on the mode of proceeding, which the court granted and the matter commenced fully on 10th July, 2017.
Comrades Ekasa and Nzidee, among other prayers, asked the court for; one, a declaration that the “expulsion of Comrade Benson Ekasa” from the NCSU “is unlawful, unconstitutional, null and void and an order of reinstatement back to the union;” two; a declaration “that it is unconstitutional and a gross violation” of NCSU’s constitution for any of its officials who had retired from service, either at the state or federal level, “to be a member, participate in any electoral process or to still hold any post” in NCSU.
The third prayer sought is a declaration that the membership of Comrade Kiri Mohammed, the then President of NCSU, and who is the first defendant in the matter, “in the union has ceased, having been long retired from Jigawa State Civil Service and his continuous stay in the union unconstitutional and illegal.”
Fourth, the claimants prayed for a declaration “that the position of the President of the union is vacant” as well as an “order restraining the 1st Defendant [Comrade Kiri Mohammed] and any retired official of the union from parading themselves as the president or official of the union.”
Fifth, Comrades Ekasa and Nzidee requested the court to give an order “directing the Registrar of Trade Unions not to recognize nor register any amendment of the union’s constitution that allows for retired officials to continue to act for the union.”
The fifth prayer further asked for an order “mandating the 2nd Claimant [Comrade Menele Ziadam Nzidee] as the most senior Deputy President of the union to steer its leadership until an election is conducted.”
Defendants’ Responses
The Defendants in the matter include Comrade Kiri Mohammed, the then National President of NCSU (1st defendant), the NCSU (2nd defendant) and the Registrar of Trade Union (3rd defendant).
Comrade Mohammed and the union, in their joint statement of defence claimed that Comrade Ekasa wrote an open letter with the intention to impugn the character of the union’s President as well as paint the union in bad light. They further claimed that as a result of this, he (Comrade Ekasa) was expelled following his refusal to appear before the panel set up by the union to answer the allegations against him like other signatories to the letter who were queried along with him, and who had apologised for their action.
While countering the claim by the claimant that NCSU was being run by retirees, Comrade Mohammed and the union, in their statement of defence, averred that the tenure of Comrade Kiri Mohammed as the President of NCSU was due to expire in October, 2017 thereby dismissing the claim as false.
Comrade Mohammed and the union also dismissed as untrue the claim by Comrade Nzidee that he was at that point the most senior Deputy National President of the union. They further asserted that the union has the right to amend its constitution through the union’s organs and therefore cannot be stopped from doing so.
Justice Sanusi Kado, while delivering the judgment on the main matter on 25th October, 2019 re-echoed the interlocutory injunction of 1st November, 2018, stating that “as at today, there are no legally elected executives” of the NCSU “in the eyes of the law; since the recognized executive members of the union have had their tenures expired.”
Nullification of NCSU Delegates’ Conference
In the course of the litigation, the claimants brought a motion praying for an interlocutory injunction seeking to restrain the union from conducting its National Delegates’ Conference. However, before the determination of the motion, the NCSU went ahead to hold the said conference.
In its ruling on the motion delivered on the 1st November, 2018, the NIC ordered the nullification of NCSU’s National Delegates’ Conference “purportedly held on the 25th and 26th day of January 2018, in defiance of a pending ruling on interlocutory injunction seeking to restrain the defendants from conducting such conference which was slated to be delivered on 6/2/18.”
Justice Sanusi Kado, while delivering the judgment on the main matter on 25th October, 2019 re-echoed the interlocutory injunction of 1st November, 2018, stating that “as at today, there are no legally elected executives” of the NCSU “in the eyes of the law; since the recognized executive members of the union have had their tenures expired.”
Justice Kado further stated: “In order not to allowed [sic] vacuum to exist in the running of the affairs of the 2nd Defendant [NCSU] due to lack of duly elected executives, it is within the power of this Court and in fact its duty and obligation to make consequential orders in the interest of justice and fairness.
“In the circumstance of this case, I hereby pursuant to section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, make order for appointment of a Public Trustee to oversee the administration and finances of the 2nd Defendant for a period of three Months.
“The Public Trustee shall organize and convene National Delegates Conference of the 2nd Defendant to elect new executive members for the purposes of running the affairs of the union in line with its Constitution.
“At the conclusion of his assignment the Public Trustee to be appointed vide this order shall report back to the Court on the assignment entrusted to him.”
The Judgment on Substantive Suit
Justice Kado revealed in the course of delivering judgment on the matter that despite numerous opportunities given to the defendants, they all failed to open their defence. As a result, they were thus foreclosed by the Court on 11th February, 2019 upon an application by the claimants from defending the suit.
He however noted that based on the issues highlighted by the court based on the arguments of the claimants and statements of defence by defendants, the court was able to take decisions in the interest of justice, even if the defendants failed to properly defend themselves.
With regards to the expulsion of Comrade Benson Ekasa from the union, the Court held that his expulsion was wrongful as it is unambiguously clear from evidence before it that the he was expelled without fair hearing as required by the union’s constitution, and that from the available evidence, Comrade Ekasa was expelled because he instituted the suit. On this issue, the Court declared his expulsion wrongful and ordered that he be reinstated without loss of his entitlement.
On the claim by Comrades Ekasa and Nzidee asking the court to declare Comrade Mohammed’s membership of the union to have ceased, and therefore declare his position as President of the union vacant, as well as an order restraining him from acting or parading himself as the President of the union and mandating Comrade Menele Nzidee to be the most senior National Deputy President of the union; Justice Kado held that the claimants were not able to efficiently discharge the burden of proof placed on them by the law.
On this matter, Justice Kado decided thus: “The Claimant instituted this action on 27/1/16. While this suit was pending the 1st and 2nd Defendants vide exhibit CL71-2, expelled the 1st Claimant from the 2nd Defendant without giving him fair hearing as required by the Constitution of the 2nd Defendant.
“The Defendants in their pleading stated that the 1st Claimant was expelled based on anti-union activities and refusal to respond to exhibit CL61-2. Curiously exhibit CL71-2, is clear and unambiguous as to why 1st Claimant was expelled. It is because of institution of legal action against the 1st Defendant, thus, why 1st Claimant was expelled from the 2nd defendant…
“Therefore, it is clear to me from the evidence before the court that the 1st Claimant was expelled simply because he had instituted this action against the 1st Defendant… The expulsion of 1st Claimant was on wrong premise, it is wrong and cannot be allowed to stand. If the 1st and 2nd Defendants felt that the 1st Claimant has done anything inimical to the interest of the party they should have counter claim against the 1st Claimant or allow the court to determine the issue first before taking any action.
“The action of the 1st and 2nd Defendants amount to putting the cart before the horse. The expulsion of 1st Claimant was wrongly done since it was done because of this suit. The expulsion of the 1st Claimant is hereby declared null and void and of no effect whatsoever. An order for his reinstatement without loss of his entitlement is hereby made. It will be wrong for anybody or person to expel a citizen from an association or union because of instituting court case to ventilate his grievance. In fact, the 1st Claimant deserves commendation for not taking law into his hands.”
On the claim by Comrades Ekasa and Nzidee asking the court to declare Comrade Mohammed’s membership of the union to have ceased, and therefore declare his position as President of the union vacant, as well as an order restraining him from acting or parading himself as the President of the union and mandating Comrade Menele Nzidee to be the most senior National Deputy President of the union; Justice Kado held that the claimants were not able to efficiently discharge the burden of proof placed on them by the law.
Justice Kado held that despite the defendant’s failure to open defence, it is commonplace notion in law that, he who asserts must prove in order to succeed. He said: “As pointed [out] at the debut of this judgment there is no concrete evidence adduced by the Claimants to establish that the 1st defendant was long overdue to retire as at the time of filing this case nor was there evidence to show that the 1st Defendant has retired from the civil service of Jigawa State as alleged by the Claimants… This is because apart from relief 7, the other reliefs are declaratory in nature and the law is well settled that the Defendant has not duty to assist the Clamant in proving his claim.”
In other words, the court declared that Comrades Ekasa and Nzidee failed to produce any evidence to prove that Comrade Mohammed had retired or his tenure had elapsed; neither was there any proof to show that Comrade Nzidee was then the most senior Deputy President as there are provisions for two senior Deputy Presidents.
Delivering judgment on the claim by Comrades Ekasa and Nzidee asking the court to direct the Registrar of Trade Union not to recognise nor register any amendment of the constitution of the union that will allow retired officials to continue as officials of the union; Justice Kado held that the union’s move to allow all National Administrative Council members at both the state and federal levels to serve out their tenure whether retired or not is a clear violation of Trade Unions Act and the constitution of the union.
“The membership of the 2nd Defendant [NCSU] is provided for under item 19 of part B of the Third Schedule to the Trade Unions Act to be made up of all workers of the federal and states Governments, but excluding enforcement employees in customs, immigration services, technical, stenographers, medical, nurses and midwives and recognized administrative cadres. By this provision of the law, retired employees are excluded from being members of the 2nd Defendant. This also means that any person that retired from service will ceased [sic] to be a valid member of the 2nd Defendant,” Justice Kado held.
He ordered the Registrar of Trade Unions to neither recognise nor register any amendment of the constitution of the union that allows any official of the union to continue to act for the union after retiring from state or federal civil service.
The Stay of Execution Filed by NCSU
The NCSU, on the 8th of November, 2019, about two weeks after the judgment filed a motion on notice praying the NIC to grant a stay of execution of the 25th October, 2019 judgment delivered by the court pending the determination of the appeal against the said judgment. The union argued that the court had statutory and inherent jurisdiction to grant its prayer.
However, counsel to Comrades Ekasa and Nzidee argued that the application was incompetent as the union had earlier brought the same application in the course of initial hearing of the suit, on the 5th of November, 2018, praying the court to stay execution of the court’s ruling of 1st November, 2018.
Counsel to Comrades Ekasa and Nzidee further argued that the court, based on an application from NCSU to withdraw the motion on 16th November, 2018, struck out same motion on same date. They further argued that the union cannot ask for a stay of execution to appeal a ruling that was granted during the pendency of the suit after judgment had been delivered.
The Ruling on Stay of Execution
The Court, presided over by Justice Kado, on 14th May, 2020, ruled that in addition to not agreeing with the appeal processes, he is duty bound to abide by the law as it is well established in law that once it is shown that appeal has been entered and where the record of proceedings has been transmitted to the record of the Court of Appeal and an appeal number assigned, the trial court lacks every jurisdiction to take any proceedings in that matter.
The court struck out the union’s application as it ruled that it lacks jurisdiction to entertain the application since there was clear evidence that the matter has been appealed and is before the Court of Appeal.
This implies or means that the nullification of the National Delegates Conference of the NCSU held by the union on 25th and 26th of January, 2018, by the court’s ruling of 1st November, 2018, and reaffirmed in the October 25th 2019 judgment, still stands until the Court of Appeal decides otherwise.
NCSU’s Appeal
While the NCSU’s application for stay of execution of the order for the appointment of a national trustee has been thrown out by the NIC on May 14, 2020 for lack of jurisdiction, the appeal the union filed on 28th February 2020 is praying the Court of Appeal to reverse the consequential order for a court appointed national trustee for the union although there is no prayer for its stay of execution.
Essentially, the issues being sought for determination by the NCSU include whether the NIC has the jurisdiction to make consequential orders for holding of a fresh National Delegates’ Conference for the union, which was subject of a pending appeal and whether the NIC has the power to grant a consequential order not arising from the principal claims before it.
The Union in its appeal argument stated that “even though appeal had been entered in this Honourable Court on the issue of the Appellant’s National Delegates Conference, the court below impermissibly exercised jurisdiction on it by making consequential orders affecting it. According to the union, the consequential order contained in the decision of the NIC does not flow from the main reliefs sought from the court by the claimants.
“From all the reliefs sought for by the Respondents in their initiating processes in the suit of this appeal as compiled at pages 1-97 of the record of appeal, no one asked for the appointment of public a trustee to manage the affairs and finances of the appellant, but the Lower Court in its judgment, ordered for the appointment of one when it was not sought for. It is settled principle of law that, the Court cannot grant or award an order that is not sought for.”
“We contend that having refused to grant relief C (stated as relief 3 in lower court’s judgment), which sought to declare the leadership of the Appellant vacant after the 1st defendant’s tenure, the Lower Court had no jurisdiction to order the appointment of a public trustee to oversee the administration, affairs and finances of the Appellant when there was no relief seeking to stop the smooth and seamless transition of power in the Appellant. Your Lordships, it is a popular aphorism that “POWER ABHORS A VACUUM”, so it is rather befuddling that despite a pending challenge to the Lower Court’s order nullifying a free, fair and transparent process to elect new leaders for the Appellant (which the Lower Court was aware of), the lower court still went ahead to make needless consequential orders for the appointment of public trustee to oversee Appellant’s affairs.
“…What is more, the Lower Court erred in consequentially ordering for the appointment of a Public Trustee to oversee the administration and finances of the Appellant in the absence of any principal claim on such before it, thus rendering the entire proceeding a nullity. After the decisions in Akinbobola and Noerker supra, it is clear that only a prayed and granted relief can be accompanied by consequential order.
“Any decision of a Court of Law, if delivered without jurisdiction as in the instant case, no matter how well conducted, becomes a nullity ab initio, and in such a situation the court has power to set aside its judgment/order. We urge the Court to so construe and hold.
“From all the reliefs sought for by the Respondents in their initiating processes in the suit of this appeal as compiled at pages 1-97 of the record of appeal, no one asked for the appointment of public a trustee to manage the affairs and finances of the appellant, but the Lower Court in its judgment, ordered for the appointment of one when it was not sought for. It is settled principle of law that, the Court cannot grant or award an order that is not sought for.”
As the litigation lingers at the Court of Appeal, it is unclear if key actors in the trade union movement will intervene to bring to an end the aura of uncertainty and prolonged acrimony that the court case has engendered and free the union to live to the tenets of its slogan: “Service for Progress”.
