Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Date: January 20, 2016 SUIT NO: NICN /OW/16/2013 Between 1. THE REGISTERED TRUSTEES of Tricycle Owner/Riders Association Abia State 2. MR. EMMANUEL IDUME 3. MR. ALEXANDER OLIVER 4. MAlI ABEL KANU CLAIMANTS 5. MR. NDUBUISI OKORO For themselves and as representing the Tricycle Owners/Riders Association of Abia State (TORA) excluding the Defendants AND 1. CHIEF AMBROSE CHIBUZOR OMEONU 2. MR. ANTHONY OKWU DEFENDANTS 3. BENJAMIN NZENWATA Representation: C. O. Azubuike for the Claimant J. O. Agwu for the Defendant JUDGMENT The Claimants by a complaint filed on the 19th day of September 2013, claimed against the Defendants thus: 1. A declaration that the refusal by the 1st Defendant as former or ex-president and his illegally handpicked or appointed Executives for new Executives Officers of Tricycle Owners/Riders Association Abia State (TORA), the 1st Defendant having been impeached and removed on the 19th day of May 2012 at a duly constituted emergency Joint Trustees and Executive Committee meeting held at the Prisons POWA Shop, Aba Road, Umuahia in Umuahia North Local Government Area of Abia State and have continued in spite of same to hold on to the said office threatening violence against the Claimants is wrongful and ultra vires TORA constitution and as it affects the Abia State Council. 2. A declaration that the Defendants/Respondents are not competent persons and that their conduct was adverse to the interest of the said union (TORA) Abia State Council. 3. An Order that the 1st Defendant/Respondent and his handpicked Executives who are the 2nd and 3rd Defendants render account from the time or period when the 1st Defendant/Respondent took over the mantle of leadership till date, that is from 25th October 2011. 4. An Order that the 1st Defendant/Respondent and his so called Executives formally hand-over the said union documents in their custody which they have refused to surrender or release to the Claimants inspite of all entreaty/appeals namely: (a) Original Certificate of Incorporation (TORA) (b) Union Seal (c) Membership Register (d) Keke (Tri-cycle) Register (e) Union Card Register with N5,000.00 (Five Thousand Naira) physical cash. (f) Membership Passport Envelope 150 (One Hundred and Fifty passports photographs) (g) Daily Sales Record Account Book (h) Monthly Record Account Book (i) Attendance Register (j) Another Envelope containing the sum of Fifty Thousand Naira (N50,000.00). (k) One Calculator (I) 9 (nine) Receipts Booklets (m) Emblem from Umuahia North Local Government Council (n) Emblem from ASEPA Daily Ticket (0) 5 (five) booklets of Infrastructure daily ticket (p) 5 (five) Booklets of ASPIM daily tickets (q) 5 (five) Booklets of Local Government Council levy receipts for Umuahia North. (r) Stapler Machine (s) 1 packet of pin etc. 5. A perpetual injunction restraining the Defendants/Respondents from controlling, managing, directing sales of TORA Tickets or howsoever interfering with the affair of the union and parading themselves as the Executives Officers of the Union having been sacked for high-handedness corrupt enrichment, running the affairs of the Union as a personal enterprise and threatening violence on any real or imaginary enemies amongst other reliefs The complaint was filed alongside Statement of Facts, the Claimants’ written statement on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The 1st, 2nd and 3rd defendants on the 3rd day of December 2013, entered appearance and filed their Statement of Defence and Counterclaim along with their witness’s written statement on oath and list of witnesses. Hearing commenced on the 24th day of June 2014. The 2nd Claimant testified on behalf of the Claimants as CW1, and called one witness, tendered 8 Exhibits CT1 - CT8. The Defendants called two witness and tendered 3 Exhibits CT9, CT10 and CT11, which was opposed by Claimants’ counsel on grounds of its non-admissibility. Leave was granted to counsel to incorporate the arguments on the objection to Exhibits CT9, CT10 and CT11 in the Final written Address. Hearing was concluded on 13th day of March 2015, and the parties were ordered to file their final written addresses in accordance with the rules of this Court. In the defendants’ Final Written Address filed on the 23rd day of September 2015 vide a motion for extension of time, Counsel urged the court to hold that the objection of the Claimants’ Counsel is misconceived in law and raises no legal grounds that attack the basis of admissibility of a document as an Exhibit. Counsel further stated that they sought to tender Exhibits CT9, CT10 and CT10 same having been pleaded in the statement of defence but inadvertently not frontloaded. Thus, when the DW2 Chief Ambrose Omeonu identified these exhibits and Counsel sought to tender same, Claimants’ Counsel objected on the basis that the Claimants do not know the documents and that it was brought in to deceive the court. On this basis, counsel submitted that objections to the admissibility of a document as an Exhibit is predicated on its relevance and the proper foundation must be made to enable the court admit same. The foundations are that the document must be relevant to facts in issue, pleaded, front loaded, and if necessary notice to produce be given in order for the court to administer justice. Counsel stated that these documents were pleaded in the statement of defence and contained in the list of documents the Defendants intends to rely in defence of this suit. He submitted that the basis of admissibility of a document is its relevance and not form or custody. See the case of TORTI UFERE vs. CHIEF UKPABI & 2 ORS (1984) 1 SC at Pg. 370 at 391. Counsel urged the court to admit the CT9, CT10 and CT11 as exhibits as they are relevant to this suit. Four issues were subsequently distilled in the defendants’ final written address, thus: 1. Whether the suit of the claimants is competent based on their non compliance with the provisions of S.682 part C of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria (LFN) 2004 and the Constitution of Tricycle Owners/Riders Association of Abia State in removing the president and one of the trustee members of the Union. 2. Whether the court has jurisdiction to entertain the claim of the Claimants. 3. Whether the Claimants have proved their case against the Defendants on the preponderance of evidence. 4. Whether the Defendants have successfully defended their case on the strength of their evidence and equally proved their counter claim. Counsel submitted that the Claimants have not complied with the above said Section 682 of the Companies and Allied Matters Act in removing and or sacking their President and Trustee members. The said Section 682 reads: 1) Where a body or association intends to replace some or all its trustees or to appoint additional trustees, it may by resolution at a general meeting do so and apply in the prescribed form for the approval of the commission. 2) Upon such application the provisions of subsections (2) to (4) of Section 679 of this Decree shall apply to this section as they apply to the change of name and object. 3) If the commission assents to the application, it shall signify its assent in writing to the corporation and appointment shall become valid as from the date of the resolution appointing the trustee. Section 683 reads: “Any change or alterations purported to be made in contravention of Section 680, 681 or 682 of this Decree shall be void.” The preceding sections prescribe the mode to remove; impeach and replace a trustee of an Association under Part C of CAMA to include moving a motion for the removal of the 1st Defendant, taking necessary steps to register the removal at the Corporate Affairs Commission and publicize same at least in 2 of the National newspapers for 28 days for any objection to be made before any action. It is counsel’s contention that when a law or rule provides a mode for the commencement of an action and failure to comply with such renders the action a nullity. See the cases of: 1. MADUKOLU vs. NKEMDILIM (1962) SCNLR 341, 2. OLOBA vs. AKEREJA (1988) 3 NWLR Pt. 84 - 508. Counsel argued that parties are bound by their pleadings, the Claimants in paragraphs 2, 3, and 8 of their Statement of Claim stated that they sacked, removed and impeached the 1st Defendant but never said that or pleaded that they took necessary steps to comply with the Provisions of Section 682 of the Company and Allied Matters Act. This non-compliance with the provisions of the law guiding Incorporated Trustees is fatal to the instant suit. With respect to the second issue, counsel contended that the reliefs contained in the particulars of claim and Statement of Claim are declaratory and injunctive in nature. the National Industrial Court lacks the jurisdiction to entertain this suit. He stated that jurisdiction is a fundamental issue and it is the Claimants claim that determines whether the court has jurisdiction to try same or not. see the case of ATTORNEY GENERAL OF THE FEDERATION vs. GUARDIAN NEWSPAPERS LTD. (1999) 9 NWLR (Pt. 618) 187. Counsel submitted that Section 15 of the Trade Disputes Act 1976 confers jurisdiction on the National Industrial Court. The said section did not provide jurisdiction to make declarations and to order injunctions as in the instant case. See the case of WESTERN STEEL WORKERS LTD. vs. IRON AND STEEL WORKERS UNION OF NIGERIA (1986) 3 NWLR (Pt. 30) 617. Counsel urged the court to so hold and order the entire proceeding a nullity as it lacks jurisdiction to entertain the suit. Addressing the third issue, it is counsel’s contention that the claimants have failed to prove that they are bonafide trustees and members of Tricycle Owners/Riders Association, Abia State (TORA) excluding the Defendants, as pleaded in paragraph 1 of the Statement of Claim. He stated that from CW1’s evidence elicited during cross examination on the 24/6/2014, CW1’s insistence that his names are both "Emmanuel Idume" and “Soromtochukwu Emmanuel” makes his evidence contradictory. It is trite law that where the evidence of a witness materially contradicts itself under cross examination the suit ought to fail. Counsel submitted that there are contradictions in the evidence of CWl which renders their suit a nullity. Again, CW1 stated further during cross- examination that the headquarters of TORA is at 1 Adelabu Street, Umuahia North L.G.A contrary to paragraph 4(iii) of their Defence/Reply to the statement of defence, which reads “that the Headquarters of TORA is Shop 7 POWA PLAZA opposite Golden Guinea Breweries Plc Umuahia…” Based on the foregoing, counsel urged the court to find as a fact that the witness has materially contradicted their pleadings. It is not the duty of the court to determine what evidence is correct and reliable. See the case of JAWODO vs. BAKARE (2006) All FWR (Pt. 332) 1590 where the Court of Appeal held thus: “Where a party contradicts itself in evidence, the court will not choose which to believe and which not to believe in the inconsistent evidence. The court does not have that duty. Rather the court shall treat that evidence in whole with circumspect since it is not credible.” Counsel urged the court to hold that the Claimants have woefully failed to prove their case against the Defendant and dismiss this suit. It is the submission of counsel that the Plaintiff will succeed on the strength of his evidence and not on the weakness of the Defendants. Therefore, the Plaintiff must satisfy the court that he is entitled to the declaration sought from his pleadings and evidence. See the case of BELLOCO vs. EWEKA (1981) l SC 101.Counsel submitted that the Defendants have adduced evidence to show that the Claimants are not entitled to the reliefs sought from the court as they did not impeach or sack the 1st Defendant who is still the President and one of the trustees and founder of TORA and still commands the affairs of TORA at its Corporate Office, Chekwas Cinema opposite Central Police Station Umuahia Abia State. The Claimants having not complied to the requirement of the Corporate Affairs Commission in removing a trustee makes their case fatal. More so, the DWl and DW2’s testimonies were not impeached under cross examination. Counsel urged the court to resolve the issues argued above in favour of the Defendants and dismiss the suit with punitive cost while granting the counter claim. In the Claimants’ Final Written Address filed on the 6th day of November 2105, counsel submitted that the constitution of TORA was applied to the letter resulting into the impeachment or sack of the 1st Defendant. Therefore, it is illegal for the 2nd and 3rd Defendants to be included as officers of TORA. The 1st defendant could not validly appoint the 2nd and 3rd Defendants as his executive members in breach of the TORA Constitution. It is counsel’s contention that the power to appoint includes the power to remove. In other words, a willing servant cannot be imposed on an unwilling master. See the case of LONGE vs. FIRST BANK OF NIGERIA PLC (2006) 3 NWLR (Pt. 967) Pg. 228 at 265 G-H Pg. 268 PARAS B-H. Counsel submitted that the 1st Defendant's action appointment of the 2nd and' 3rd Defendants as executive members of TORA when he has been sacked is an exercise in futility. See the case of GUINNESS (NIG) LTD vs. UDEANI (2000) 14 NWLR (Pt. 687) at Pg. 388- 389. Counsel contended that the judgment in suit No HU/40M/2012 delivered by Justice S. O. E Nwanosike reveals the illegality of the Defendants’ averments. Also, this Court has the powers to grant the reliefs sought by the Claimants against the Defendants. Counsel referred the Court to the following cases: 1. WESTERN TEXTILE INDUSTRIED COMPANY LIMITED vs. ADO-KITI WESTERN CO WORKERS UNION NIC LR (PART 1) 11 AUGUST, 1978 IN SUIT NO NIC/18/78. 2. NIGERIAN SUGAR COMPANY LIMITED vs. NATIONAL UNION OF FOOD BENVERAGES AND TOBACCO EMPLOYEES NIC LR (PART 1) SUIT NO NIC/13/78. Furthermore, counsel submitted that Exhibits CT 9, CT10 and CT 11 cannot be admitted in evidence as pleadings were not exchanged in respect of these Exhibits sought to be tendered by the Defendants during the hearing of this Suit. It is trite that no one party is allowed in Law to spring surprises on the other party. Also, apart from admissibility, a party who intends to tender documents must comply with the rules precedent to admissibility. One of such rules being frontloading, to enable the adverse party have a pre-knowledge of the documents he is going to meet in court during hearing. Thus, TORTI UFERE vs. CHIEF UKPABI & 20RS (1984) I SC 370 at 391 cannot be a shield to the Defendants who have failed to comply with the Rules of court. Counsel urged the court to hold that this breach is fundamental. See the case of JABITA vs. ONIKOYI (2004) All FWLR (Pt. 333) 1625. After this foregoing argument, the Claimants’ counsel proceeded to respond to the defendants’ issue by submitting that the claimants did comply with the relevant sections in the CAMA and the constitution of TORA at removing the 1st Defendant DW1. The Resolutions passed by the general House of TORA and which was exhibited by the Claimants show that due process was followed. The claimants acted in good faith when the 1st Defendant was duly removed because he was running TORA as his private enterprise. The High Court One, Umuahia of Abia State confirmed the same in its judgment which is before the court and remains unchallenged till date. The 1st Defendant and the 2nd and 3rd Defendant have no business with TORA as they are not financial members of TORA having been sacked by virtue of their conduct which is inimical to the progress of TORA. Counsel contended that the legal authorities of MADUKOLU vs. NKEMDILIM (supra) OLOSA vs. AKEREJA (supra) cited by the defendants’ counsel does not vitiate the removal of the defendants from office. Counsel urged the court to hold that the claimants’ claims are competent. Again, counsel argued that the subject matter in the instant suit falls within the ambit of the civil jurisdiction of the National Industrial Court as is expressly provided for in Section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. The Section 254C referred to above reads: Notwithstanding, the provisions of section 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court (shall have and exercise jurisdiction to the exclusion of any other court) In civil causes and matters. (a) Relating to or connected with any labour, employment, trade unions, industrial relations, and matters arising, from workplace the conditions of service, including health, safety welfare of labour, employee worker and matter incidental thereto or connected therewith. (b) Relating to or connected with or arising from factories Act, Trade Dispute Act, Trade Union Act, Workmen's Compensation or any other Act or law relating to labour, employment, industrial relation, workplace or any other enactment replacing the Acts or laws. (c) Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lookout or any industrial action or any conduct in contemplation or in furtherance of a strike, lock out or any industrial action and matter connected to therewith or related thereto. (d) Relating to or connected with any dispute over, the interpretation and application of the provisions of chapter IV of this constitution as it relates to any employment, labour, Industrial relations, association or any other matter which the court, has jurisdiction to hear and determine etc It is counsel’s argument that the NIC has the power and jurisdiction to entertain this suit, as well as hear and determine the declaratory and injunctive reliefs sought by the claimants. See Section 254C (1) (a) of the 1999 constitution of the Federal Republic of Nigeria (As Amended). Thus, the legal authorities cited by the defendants holds no moment upon the amendment to the 1999 constitution and the Act establishing the National industrial court (NIC) of Nigeria. Counsel submitted that the claimants have proved their case on the preponderance of evidence. The CW1 Mr Emmanuel Idume is also known as Soromtochukwu Emmanuel and to the knowledge of the D.W.2 Chief Ambrose Chibuzor Onemonu CW1 is one of the trustees of TORA including the other claimants. English names were preferred to Igbo names when this suit was filed. Thus, CW1’s is not contradictory as contended by the defendant because his photograph is embossed on the documents of the TORA in respect of the TORA's incorporation with the CAC. Counsel urged the court to discountenance the submissions of the Defendants in this regard as it lacks merit. The DW2 during cross- examination stated that the CW1 is one of the trustees and members of TORA. This Admission needs no further proof, thus no material contradictions exist in CW1's evidence. Finally, it is counsel’s argument that the counter-claim ought to fail. This is owing to the fact that no evidence was ever led in respect of the counter claim which is a separate claim that needs to be proven. In conclusion, counsel urged the Court to grant the Reliefs sought by the Claimants against the defendants in the interest of justice Court’s Decision Having heard learned counsels to the parties in their final written address, I will now proceed to determine the case presented by both set of parties to see which of them succeeds in their respective claims. Before I embark on that duty, let me quickly settle some issues raised by counsels in their addresses. The defendants counsel raised an objection to the jurisdiction of this court when he argued in his address that the claim of the Claimants as contained in the particulars of claim and statement of claim are declaratory and injunctive in nature, as such, the National Industrial Court lacks the jurisdiction to entertain the suit. Counsel based his argument on Section 15 of the Trade Dispute Act 1976 and argued that by virtue of the section, the jurisdiction conferred on this Court did not include jurisdiction to make declarations or to order injunctions. I find this argument without any merit in view of the powers granted to this court in Section 254D (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which include the power to make declarations or injunctive orders where necessary. Furthermore, Sections 16 and 19 (b) of the National Industrial Court Act 2006 specifically gave this court powers to grant injunctions and make declaratory orders. I must also mention that the subject matter of this action is an internal dispute of an association of Tricycle owners and riders (I shall be referring to it in this judgment as TORA); which raises the question as to the interpretation and or application of the constitution of the association. The subject matter of this suit is one within the subject matters this court is conferred with jurisdiction to entertain. See particularly Section 254C (1) (j) (vi) of the CFRN 1999 (as amended). In view of the foregoing, the defendants counsel’s objection to the jurisdiction of this court to entertain this suit is discountenanced. The claimants counsel too raised an objection to the admissibility of EXHIBITS CT 9, CT10 and CT 11. The ground of his objection is that the documents were not front loaded by the defendants along with the statement of defence. I recall the ruling of this court in an application filed on 13th May 2015 by the defendants for leave to front load the documents listed in their list of documents, having not front loaded them along with the statement of defence. The said application was moved on 13th May 2015 without objection from the claimants counsel. In my ruling of same day, I ruled that “the documents attached to the application are deemed as properly filed and served”. The effect of this ruling is to take the documents as having been filed along with the statement of defence. Those documents are the ones the claimants counsel has now submitted are not admissible because they were not front loaded. The objection to the admissibility of exhibits CT9, CT10 and CT11 is overruled. I can now attend to the main matter. In proof of their claims, the claimants called one witness. He is the 2nd claimant who said he is a member of a registered association called Tricycles Owners/Riders Association (TORA). He testified that the 1st defendant was appointed the president of the association on 25th October 2011. 1st defendant became arrogant and entreaties to him by the Trustees and Executives to abide by his oath of office and the constitution of the association had no effect. A joint emergency meeting of the Trustees and Executives was convened where it was decided that the 1st defendant be suspended. The 1st defendant became violent upon his suspension and in company of some thugs; he invaded the secretariat of the association and took away some items belonging to the association. The 1st defendant also appointed some members of the association as acting secretary and PRO in breach of the constitution of the association. CW1 stated that the impeachment, sack or removal of the 1st defendant as the union president is irreversible and he concluded his evidence by saying that the claimants claim are as per the claims in the Statement facts. The defendants called two witnesses in defence of the claims against them. The witnesses are the 1st defendant and 2nd defendants as DW2 and DW1 respectively. DW1 said he is the 2nd defendant and a member of TORA. TORA was registered under the Companies and Allied Matters Act (CAMA) with its headquarters at Chekwas Cinema, Opposite CPS, Umuahia. He said the 1st defendant was elected president of the union on 25th October 2012 together with other officers. CW1 said he was originally a full member of TORA until he was elected the secretary of TORA at a general meeting of the union held on 17th May 2012. At that time, the 2nd to 5th defendants have started to run a parallel union at No. 7, POWA Shop, Aba Road Umuahia and carrying out anti union activities. When they were confronted on their activities, the 2nd to 5th claimants resorted to using security personnel to intimidate the union. The present executive of the union is led by the 1st defendant as president. The union is intact and fast growing. The 2nd to 5th defendants were suspended because they failed to account for the monies they made from selling tickets. The 2nd to 5th claimants have acted contrary to the constitution of the union which acts have adversely affected the union. He said that the defendants are recognized executives of TORA. DW2 testified that he is the founder and the 1st president of TORA and he is also a full member as well as the 2nd and 3rd defendants. He said the 2nd to 5th claimants are not Trustees of TORA but are merely members of TORA who were admitted after the union was registered. According to DW2, he is still the president of TORA and in full control of its activities having been elected for a 4 year tenure from 25th October 2011. There was no time he was impeached as the constitution of the union did not make provision for impeachment of elected officers. It is his evidence that the head office of the union is at Chekwas, Opposite Central Police Station, Umuahia where meetings of the union are to be held. Upon being elected, DW2 said he asked the 2nd to 5th claimants to open an account in the name of the union which they did but the account was being run by the secretary, Financial Secretary and the treasurer who were busy embezzling the funds in the account without the knowledge of DW2. When he discovered this, he demanded for accounts from them but when they could not, he reported a case of stealing to the police but the claimants broke away from the union and opened their own union office at No.7, POWA Building, Umuahia and took with them items of the union to run their factional office and continued to embezzle TORA funds. DW2 also said the 2nd to 5th claimants were allowed by him to register new members and the registration fee was N2,500 each member. The claimants did register about 930 persons but could not account for the monies realized. DW2 relied on the membership register, which is Exhibit CT9. DW2 said that the claimants brought this suit when they could not account for the registration fees and monies they made from selling of tickets in order to avoid rendering account. That in an executive meeting of TORA held on 25th April 2012, whose agenda was for the 2nd to 5th claimants to render accounts of the union fund and to explain why they held meetings outside union office but the meeting ended in a deadlock. This resulted to involvement of the police. DW2 further testified that he does not run TORA as his personal business and does not hold TORA’s funds as he is not the financial secretary or the treasurer of the union. DW2 said further that there was no time he was suspended from the union and he remains the president of TORA up till now. It was rather the 2nd to 5th defendants that were suspended for anti union activities. The 2nd to 5th claimants were also expelled from the union in a general meeting held on 17th May 2012. He referred to the Exhibit CT10 letter to the Commissioner of Police, Abia State. It is also the testimony of DW2 that when the 2nd to 5th claimants opened their separate office, they used the documents they took from the union’s office to operate and received tricycle dues to the union from the government. It was through the police that the membership register was recovered from the claimants. The facts of the claimants’ case as to the status of the 1st defendant in the association are quite confusing and contradictory in all material respects. In paragraph 8 of his evidence, CW1 said that the 1st defendant was suspended at a joint emergency meeting of the Trustees and Executives of the Association while in paragraph 15, CW1 said “the impeachment, sack or removal of the 1st defendant as the union’s president is irreversible” without any explanation whatsoever as to how and when the alleged impeachment, sack or removal was done. In their statement of facts, the claimants pleaded in paragraph 2 thereof that “the 1st defendant was an ex-president of TORA and was impeached and removed by the Trustees and financial members of the union on 19th May 2012 in line with the union constitution particularly section 13 (b)…”. This is not contained in the evidence of CW1. Then in relief 1 claimed by the claimants, they sought this court to declare that it is wrongful and against the constitution of TORA for the 1stDefendant, who is a former or ex-president of the association, having been impeached and removed on the 19th day of May 2012, to continue to hold unto to the office. The claimants pleaded in paragraph 3 (a) of the statement of facts the resolution of the said meeting of 19th May 2012 where the 1st defendant was allegedly “impeached and removed” and the letter with which the 1st defendant was communicated the resolution. This document is in evidence as Exhibit CT1. The letter, addressed to the 1st defendant reads in its first paragraph as follows- “After due consultation, in an emergency joint trustees and executive committee meeting of Tricycle Owners/Riders Association (TORA) Abia State held at 7, Prisons POWA Shop, Aba Road, Umuahia on Saturday 19th May 2012 by 11am prompt resolved as follows that: i. Chief Ambrose Omeonu has been expelled from the union…” From the pleadings, reliefs, evidence of CW1 and Exhibit CT1, words as “suspended”, “impeached”, “removed” and “expelled” were used by the claimants to describe the present status of the 1st defendant with respect to the association. It must be pointed out that while the pleadings of the claimants, the 1st claim on the complaint and the evidence of CW1 are to the point that the 1st defendant was removed as president of the association, the content of Exhibit CT1 quoted above suggests that the resolution made at the said meeting was the expulsion of the 1st defendant from the union. That is to say while the claimants contend in this case that the 1st defendant was removed from his position of president, the document they rely on in that contention talks about a different thing. The fact that the 1st defendant was expelled from the association was never pleaded nor in the evidence of CW1. This is quite a conflict in the claimants’ case. However, what I can piece together from the facts and Exhibit CT1 is that the claimants alleged that the 1st defendant had been removed as president of the association and also expelled from the association. Notwithstanding the obviously conflicting case presented by the claimants, I shall consider whether the 1st defendant has truly been removed from the office of president of the association and also expelled from the association. I decided to do this so as to determine all the controversies that have been raised as to the standing of the 1st defendant in the association. While the claimants’ case is that the 1st defendant had been removed as president of the association and also expelled from the association, the defendants denied these facts. The defendants further contended that the 1st defendant remains a member and the president of the association. The task before this court from this dispute is to determine if the 1st defendant had been removed as president of the association and expelled from the association as alleged by the claimants. It is also my view that the determination of this issue will answer all the claims of the claimants in this suit. As I have mentioned earlier, the claimants’ proof of the removal of the 1st defendant is Exhibit CT1. There is also Exhibit CT7. This is an affidavit deposed to by some persons who described themselves as the executive members and representatives of TORA. Paragraph 2 of the affidavit is to the same effect as Exhibit CT1. It contains that “After due consultation, in an emergency joint trustees and executive committee meeting of Tricycle Owners/Riders Association (TORA) Abia State held at No. 7, Prisons POWA Shop, Aba Road, Umuahia on Saturday 19th May 2011 by 11am prompt resolved as follows: i. Chief Ambrose Omeonu has been expelled from the union…” There is nothing in these exhibits to the effect that the 1st defendant had been removed as the president of the association. I do recognize however that expulsion from the association will signify loss of positions held in the association. The 1st defendant has been shown to be a member of the association, a trustee member and the president of the association until the alleged expulsion. CW1 told this court in paragraph 4 of his evidence that the 1st defendant was elected president of the association on 25th October 2011. The constitution of the association provided that he has a 4-year tenure but the constitution is silent on how to remove an executive officer from office. In Section 11 (c) of the constitution, it is provided that a trustee may hold office for life but shall cease to hold office if, among others, he or she ceases to be a member of TORA. Therefore, the expulsion, as I have observed earlier, has the effect of removing all the status the 1st defendant has in the association from him. It can thus be taken that the purport of Exhibits CT1 and CT7 is to show that the resolution at the said meeting is both to remove him as president and expel him from membership and Trusteeship of the association. It is stated in these exhibits that the action to expel the 1st defendant was taken in accordance with the constitution of the association. It was also pleaded by the claimants in paragraph 2 of the statement of facts that the 1st defendant was removed “in line with the union (TORA) constitution particularly section 13 (b)”. It is thus clear that the claimants relied on the constitution of the association as the foundation of their action. The said constitution is in evidence as Exhibit CT2. Whether or not the 1st defendant had been removed or expelled will depend on the provisions of the constitution. I have read the said constitution of the association. I shall set out only the provisions which are relevant to the determination of this issue. In Section 1, the address of the association is stated to be at Chekwas Cinema, Opposite Central Police Station, Umuahia. Section 5 (b) provides that meetings shall be held in the office complex and Section 5 (c) provides that there shall be three (3) types of meetings which are Executive, General and Emergency meeting. While Section 7 lists the officers/executives of the association to be the president, vice president, secretary, assistant secretary, financial secretary, Treasurer, provost, assistant provost, PRO, patrons/ex-officers and legal adviser, Section 10 (a) provides that the tenure of office will be 4 years. Section 13 (b) states that disciplinary actions include fine, suspension and expulsion and the section defines some offences and their punishments as follows- i. Disruption of the association in session by fighting, quarrelling, or using abusive words- fine. ii. Disrespect, insolence, and negligence of duty- punishment to be determined by executive committee iii. Disturbance of the association in any gathering – fine iv. Stealing- expulsion v. Lateness to meeting- fine vi. Absence from meeting- fine vii. Inactive membership- not eligible for election and shall be deprived right and privileges viii. Any other offence not specifically mentioned shall be dealt with by the executive committee and report back to the general house. In Exhibits CT1 and CT7, the 1st defendant was expelled from the association “in an emergency joint trustees and executive committee meeting of Tricycle Owners/Riders Association (TORA) Abia State held at No. 7, Prisons POWA Shop, Aba Road, Umuahia on Saturday 19th May 2011”. This fact is also disclosed in relief 1 sought by the claimants in the Complaint. That is to say the meeting in which the 1st defendant was expelled was an emergency joint trustees and executive committee meeting and the meeting was held at No. 7, Prisons POWA Shop, Aba Road, Umuahia. The 3 types of meeting which the association can hold, as provided for in its constitution are the Executive, General and Emergency meetings. A meeting as “emergency joint trustees and executive committee meeting” is not provided anywhere in the constitution. The meetings can be Executive meeting or Emergency meeting but nothing like joint trustees and executive emergency meeting. Furthermore, the constitution specifically provides that its office is at Chekwas Cinema, Opposite Central Police Station, Umuahia and that meetings must be held in that address. Exhibits CT1 and CT7 show that the address at which the meeting was held was at No. 7, Prisons POWA Shop, Aba Road, Umuahia. In Exhibits CT1 and CT7, the offences alleged against the 1st defendant which caused him to be expelled were listed. They include anti union activities, illegal printing and selling of union tickets, refusing to go on suspension, trying to hijack the union as his personal property, failure to remit monies realized from sale of tickets, unlawfully detaining the executives and board of trustees with false accusation and forcefully removing the union properties. These offences are not specifically provided for in Section 13 of the Association’s Constitution. In such a situation, what is expected by the constitution in Section 13 (C) is for the executive committee to determine the appropriate punishment and report back to the general meeting. Therefore, it could only be the executive committee of the association that can take decision on the punishment of the 1st defendant in view of the offences alleged against him. In Exhibit CT1, those who attended the meeting in which the punishment was taken against the 1st defendant are- 1. Comrade Mazi Abel J. Kanu – Exco 2. Kelechi Nkemjika - Trustee 3. Chief Ukpabi Okoronkwo - Exco 4. Comrade Udubuisi Okoro - Exco 5. Chikezie Arungwa - Trustee 6. Ugochukwu Izuwa - Exco 7. Comrade Emmanuel Idume - Exco 8. Alexander Ilua - Exco 9. Oliver Mark - Exco 10. Nneji Nkejiaka - Trustee 11. Success Kalu - Exco 12. Chidiebere Nwosu - Exco 13. Nwanosike Onyekachi - Exco This list shows that the participants of the meeting include both executive officers and trustees of the association. Section 7 of the constitution has set out the officers who constitute the executive. It does not include trustees of the association. The presence of the 2nd, 5th and 10th participants as Trustees of the association in that meeting to decide the allegations against the 1st defendant vitiates the decision taken against the 1st defendant in that meeting. I also cannot find any averment or evidence from the claimants to the effect that after the decision was taken in the meeting, it was reported to and ratified in a general meeting. The parties are agreed that the association was registered with the Corporate Affairs Commission (CAC) and the claimants tendered the certificate of registration which is in evidence as Exhibit CT6. In Exhibit CT6, Chief Ambrose Omeonu, Sorontochukwu Emmanuel, Chikezie Arungwa, Solomn Ndubuisi, Alexander Ilua, Kelechi Nkemjika, Wilson Okoronkwo, and Nneji Nkejiaka were registered as the Trustees of Tricycle Owners/Riders Association of Abia State. It is clear from this registration that the association was registered under Part C of the Companies and Allied Matters Act, LFN 2004 (hereinafter referred to as CAMA). Section 599 (1) of CAMA provides that replacement or appointment of Trustees can only be done by resolution at a general meeting and there must be an application in the prescribed form for the approval of CAC. Section 600 provides that any change or alteration purported to be made which contravenes Section 599 shall be void. From the facts adduced by the claimants and as reflected in Exhibit CT1 and CT7, the provision of Section 599 of CAMA was not complied with by the claimants in respect of the removal of the 1st defendant as a Trustee of the Association. The meeting in Exhibit CT1 is not a general meeting neither was any application made to CAC for approval to remove the 1st defendant as trustee. Failure to comply with the provision of the law with respect to any purported expulsion of the 1st defendant as a trustee of the association renders the expulsion void. Even more importantly, throughout the case of the claimants, they didn’t at anywhere show that the 1st defendant was present in the meeting where he was expelled or that he was heard before the decision was taken against him. That is to say the claimants have not shown that the 1st defendant was given a hearing at all on the allegations against him before he was purportedly expelled from the association. Any such purported expulsion without opportunity of fair hearing cannot stand. From the foregoing, I find that the 1st defendant has not been validly expelled or removed. His purported expulsion or removal as contained in Exhibits CT1 and CT7 is invalid for being contrary to the constitution of the Association and CAMA. The effect is that the 1st Defendant remains a member of the Association and holds his position of Trustee and the president of the association. The other reliefs sought by the claimants include an order to the defendants to render account and also return the properties of the association. Let me refer the claimants to the duties of the president of the association as provided for in the constitution. It contains that the president shall be at the head of all the affairs of the association. This implies that as the 1st defendant is still the president, he is responsible for the accounts and property of the association. I have also considered all other reliefs sought by the claimants and I find that they were sought based on the belief that the 1st defendant has been removed from office or expelled from the association. Now that it is clear the 1st defendant has not been removed or expelled, the reliefs are baseless. In all, the reliefs sought by the claimants fail completely and the claims are hereby dismissed. I shall now turn to the counter claim. In a separate process dated 12th November 2013, the counter claimants, who are the defendants to the claimants claims, counter claimed for some reliefs stated in the process against the claimants. They also filed a separate process titled “particulars of counter claim” which contain the facts in support of the counter claims. The counter claim was not built into the statement of defence. The way it was filed, the counter claim was meant to be a separate action from the defence to the claimants’ action. Being a separate action, and having its own facts for the claims, the counter claimants are expected to also file the evidence in proof of the claims along with it. It is however surprising that the counter claimants did not file any witness statement on oath along with the counter claim. The depositions adopted by DW1 and DW2, who are the 2nd and 1st counter claimants respectively, are those filed along with the statement of defence and in proof of the averments in the statement of defence. However, in the oral examination of DW2, he told this court that he relies on his statement on oath in proof of the counter claim. As for DW1, he said thus: “I wish to adopt it as my defence in this suit”. The implication is that the deposition of DW1 is only for the defence of the claimants’ action. Therefore, the counter claim shall be considered in the light of the evidence of DW2. His evidence has earlier been summarized in this judgment. I need not repeat it again. On the other hand, the defendants to the counter claim filed a reply to the counter claim dated 24th January 2014 but there was no witness statement on oath in proof of the averments therein. I have considered the evidence of CW1 but I find that the evidence is materially divergent from the averments in the reply to the counter claim. The evidence of CW1 does not answer the counter claim. The effect is that no evidence was adduced in respect of the defence to the counter claim. The counter claim therefore remained undefended. In relief (1) of the counter claim, the counter claimants sought this court to declare that the defendants to counter claim have been expelled from the association. In his evidence, DW2 stated that in a general meeting of 17th May 2012 held at TORA head office, the defendants to counter claim and some other members were expelled. This was contained in a letter dated 18th May 2012 to the Commissioner of Police, Abia State. The said letter is Exhibit CT10 and it contain that “After a general meeting of the Tricycle Owners/Riders Association (TORA) Abia State Chapter held on Thursday the 17th day of May 2012 at their Headquarters via Chekwas Cinema, Opp. CPS Umuahia, it was resolved as follows: 1. That these men listed below have been expelled from the union…” Among those so expelled include the 2nd to 5th defendants to counter claim. From the evidence of DW2, the 2nd to 3rd defendants to the counter claim were members of the association until the alleged expulsion. When I was considering the claims of the claimants, now defendants to counter claim, I examined the provision of Section 13 of the constitution of the association relating to discipline of members of the Association. The offences contained in Exhibit CT10 for which the 2nd to 5th defendants to counter claim were expelled include embezzlement of union money, holding illegal meetings, threatening the life of the president and trying to cause riot in the state. These offences for which they were allegedly expelled are not specifically provided in Section 13 of the constitution. In such a situation, the constitution provides that the executive committee must first act on the allegation, take a decision on the appropriate punishment and then report to the general meeting. But in Exhibit CT10, the expulsion of the defendants to counter claim was taken directly at the general meeting. It was not shown that the decision to expel the defendants to counter claim was taken by the executive committee. The expulsion was not done in accordance with the provision of the constitution of the association. Consequently, the declaration sought in relief (1) of the counter claim cannot be made. The relief is dismissed. It was my finding earlier in this judgment that the 1st defendant remains the president of the association, his purported removal or expulsion having been found to be invalid and contrary to the constitution of the association. With that finding alone, all other claims in the counter claim ought to succeed. Whosoever was running the association from the moment of the purported removal of the 1st counter claimant must account for all that transpired since the wrongful take over. I have considered the evidence of DW2 and it is my view that a case has been made out for the counter claim. The 2nd to 5th defendants who, from their claims in this suit have admitted running the association after the purported impeachment of the 1st counter claimant as president, should account to the association for all funds and materials they received for or on behalf of or in the name of the Association. Except relief 1 of the counter claim which is dismissed, all other reliefs are accordingly granted. In rounding up this judgment, let me admonish the parties on the legal position of TORA. In the pleading of the parties and even in the evidence of the witnesses, TORA has continuously been referred to as a Union. It appears to me TORA has been operating as a Trade Union rather than a mere Association that it is. I have observed somewhere in this judgment that the Trustees of TORA were registered under Part C of CAMA as an association. Its constitution also recognizes it as an Association and no more. A Trade Union is defined in Section 1 (1) of the Trade Unions Act 2004 as any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers. Trade Unions are registerable only under the Trade Unions Act. Section 3 (1) of the TUA provides that an application for the registration of a trade union shall be made to the Registrar of Trade Unions. Any body of persons not registered as a trade union cannot function as one. See section 3 of TUA. TORA is not a trade union within the Trade Unions Act. The reference to it by its members as a Union or its functioning as a Trade Union is a misnomer and offends the law. Parties are to bear their costs. Judgment is delivered accordingly. Hon. Justice O. Y. Anuwe Judge