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BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo - Presiding Judge Hon. Justice B.B. Kanyip - Judge Hon. Justice F.I. Kola-Olalere - Judge DATE: JANUARY 12, 2010 SUIT NO. NIC/33/2007 BETWEEN Road Transport Employers' Association of Nigeria (RTEAN) Osogbo, Osun State - Applicant AND National Union of Road Transport Workers (NURTW), Osun State - Respondent REPRESENTATION Edmond Z. Biriomoni Esq., for the applicants and with him is Miss Ajeoma N. Nwichi. Kayode Adeleke Esq., for the respondent. JUDGMENT The applicant initiated this action by way of originating summons in which it set out three questions for the Court's determination. The questions are: 1. Whether in view of the Court of Appeal judgment in The State v. Governor of Osun State & ors, ex pane RTEAN Appeal No. CA71/161/98, which judgment was delivered on Monday 11th day of December, 2006, the applicant is an employer’s union recognized by law and free to operate from public motor parks in Osun State. 2. Whether the respondent in this suit has the right and/or the authority to disallow the full operation of the applicant in all motor parks and designated loading points in Osun State. 3. Whether the respondent in this suit has the power whatsoever to decide on the loading ratio of 5 to 1 in its favour in all motor parks and loading points in Osun State. The applicant then prayed for the following reliefs: 1. A declaration that the respondent by itself, servants or agents has no power whatsoever to decide, the loading ratio in all motor parks and designated loading points in Osun State. 2. A declaration that the action of the respondent in deciding the loading ratio of 5 to 1 in all motor parks and designated loading points in Osun State is null and void. 3. A declaration that the applicant has the full right with the respondent to operate freely in all motor parks and designated loading points in Osun State. 4. A declaration that the applicant is a registered and recognized trade union in the transportation industry in Nigeria. 5. A declaration that the applicant is a duly registered trade union by virtue of the Federal Republic of Nigeria Official Gazette No. 1, Vol. 86, of 1999 at page A8. 6. A declaration that the applicant should not be prevented from operating freely in all the Local Government owned motor parks and designated loading points in Osun State. 7. An order of perpetual injunction directing the respondent to forthwith desist from interfering with the operation of the applicant as a transport union in all motor parks and designated loading points in Osun State. 8. An order directing the respondent from entering into any communications with Osun State or any other person(s), which communication is calculated to bring the applicant into scorn or to be regarded as an unregistered transport union. 9. An order directing the respondent from referring to the applicant as an interloper. 10. An order of perpetual injunction restraining the respondent from deciding the loading ratio or activities of the applicant in all motor parks and designated loading points in Osun State. 11. An order directing both the applicant and the respondent to maintain a loading ratio of 1 to 1 in all motor parks and designated loading points in Osun State. 12. An order of perpetual injunction restraining the respondent from further interfering with the operation and activities of the applicant in all motor parks and designated loading points in Osun State. This originating summons is supported by a thirteen-paragraphed affidavit deposed to by one Hon. Oladimeji Salami the Secretary of the applicant. Averments in the supporting affidavit are to the effect that the facts leading to the dispute arose as far back as 1995. The applicant went on to say that the present dispute was as a result of the respondent's conduct and allegation that the applicant is not a legally recognized trade union hence it is not competent to operate in any motor park or designated loading point in Osun State. That the respondent's claim was based on an official gazette of Osun State on the control/establishment and management of motor parks bye-laws 1996, which law was referred to in the peace meeting between the executives of NURTW and RTEAN of Osun-Ilesha unit held on 1st April, 1995. See Exhibit A attached to the supporting affidavit. The respondent's position in question led to a law suit in the Osun State High Court, which was finally resolved in favour of the applicant at the Court of Appeal. Exhibit B attached to the supporting affidavit is a copy of the Court of Appeal's judgment on the referred case. The applicant averred further that the respondent did not appeal against the decision of the Court of Appeal in that case. Instead of complying with the decision of the Court of Appeal, the respondent continued to act in contempt by writing to the applicant that the applicant still has no legal status hence the respondent will not accord them equal loading right at motor parks and designated loading points in Osun State; therefore they are only conceding to loading ratio of 5 to 1 against the applicant. See Exhibit C attached to the supporting affidavit. The applicant deposed that it replied Exhibit C through Exhibit D, rejected the loading ratios and this led to the present action before the Court. The present action commenced in this Court on the 23rd of July, 2007. During the hearing of the matter, the applicant's counsel prayed that the case be heard on record, which the court obliged despite the fact that the respondent's counsel was not in court. The court then gave each of the parties 14 days within which to file their respective written addresses. Hearing notice was ordered to be issued and served on the respondent and its counsel to that effect and this was complied with by the court's registry. The case came up on 4th of May, 2009 for the adoption of written addresses but the respondent and its counsel, were absent without any reason or apology. The applicant formally filed its address in writing out of time on that day. The case was adjourned for adoption to enable the respondent reply in writing. On 6lh of July, 2009 this matter came up for adoption. The respondent and its counsel were once again absent. However, the respondent's counsel, Mr. Kayode Adeleke wrote intimating the court of his inability to further appear for the respondent as counsel in this case because of his new appointment as President of a Customary Court in Osun State. The letter, though not dated, was received on 3rd July, 2009 in the Court's Registry. Mr. Kayode Adeleke, therefore, urged the Court to allow the respondent bring in another counsel for its defence. This Court obliged the respondent and adjourned the case to 12th October, 2009 for adoption to enable the respondent brief another counsel and then file its reply written address. On 12th of October, 2009, this matter came up for adoption of written addresses but the respondent was absent and no counsel appeared on its behalf even though it is on record that hearing notice together with certified copy of the respondent's former counsel's letter and a copy of the applicant's written address were served on the respondent. There was no reason given by the respondent to explain or excuse its absence from court. Bearing in mind the provisions of Order 19 Rule 2 of National Industrial Court Rules 2007, the court allowed the applicant to adopt its written address. The applicant adopted its written address together with the four documents it attached to the affidavit in support of the originating summons and urged the court to grant its relief as prayed. The case was then adjourned for judgment. From the record of this court, the respondent did not file any reply to the applicant's written address. The respondent did not even file any counter-affidavit to controvert the averment deposed to in the supporting affidavit to the originating summons, despite the ample opportunity it had to do so. In our considered view, the facts deposed to in the applicant's affidavit in support of its originating summons stand uncontroverted and so would be treated as such and on merit by this court. In its written address, the applicant raised three issues. The first is whether in view of the Court of Appeal's judgment in The State v. Governor of Osun State & ors, exparte RTEAN Appeal No. CA/1/161/98 delivered on Monday 11th of December, 2006, the claimant is an employers' union recognized by law and free to operate in public motor parks in Osun State. The applicant submitted that since the respondent did not appeal against the decision of the Court of Appeal in The State v. Governor of State & ors, supra, it has no right to refer to the applicant as interlopers because the applicant is a registered trade union under section 2 of the Trade Unions (Amendment) Decree No. 1 of 1999 and so duly listed under 'Senior Staff & Employers Associations' as No. 29 of Part C to the Third Schedule to the Trade Unions Act Cap. T14a LFN 2004. See also NURTW v. RTEAN [2001] 14 NWLR (Pt. 733) 317. The second issue is whether the respondent has the right or authority to disallow the full operation of the applicant in all motor parks and designated loading points in Osun State. On this, the applicant submitted that the respondent has no such right and authority. To the applicant, in the transport industry in this country, both parties in this case have been legally recognized since 1978. See Schedule 3 of the Trade Unions (Amendment) Decree 2 of 1978, which listed RTEAN and NURTW as Nos. 55 and 54 respectively. The applicant reiterated that if the respondent is allowed to continue to prevent the applicant from fully operating in Local Government owned motor parks and designated loading points in Osun State, peace and security of the state would be threatened because such action would result to break down of law and order. The third issue raised by the applicant is whether the respondent has power to decide on the loading ratio of 5 to 1 against the applicant in all motor parks and designated loading points in Osun State. Here, the applicant submitted that there is a presumption that words in a statute or Constitution are not mere surplusage or tautology. They are meant to be interpreted and applied. See AG Abia v. AGF [2003] FWLR (Pt. 152) 201. To the applicant, Local Governments have been conferred with power to create and manage motor parks in their respective States in Nigeria. See Schedule l(e) of 1999 Constitution. Hence there is no law that empowers the respondent to determine the loading ratio of 5 to 1 between the parties and against the applicant since the two of them are equally recognized as valid trade unions in the transport industry. The applicant submitted that by determining the loading ratio between the parties unilaterally, the respondent acted illegally contrary to the 1999 Constitution of Nigeria and also acted in violation of the Trade Unions Act. The applicant finally submitted that since the motor parks and the designated loading points in Osun State are owned by the Local Government Councils/Authorities and not by the respondent, it is illegal and unconstitutional for the respondent to unilaterally decide on the loading ratio against the applicant and urged the court to so hold. After a careful consideration of the facts, arguments and authorities before us on this dispute we are of the considered view that the main issue to be resolved is whether or not the applicant's union is a registered union known in our statutes. To establish its legal status, the applicant cited some statutory and decided authorities. We have looked into these authorities. In the Trade Unions Act Cap. 437 LFN 1990, Third Schedule Part B under Senior Staff Unions, the name of the applicant is listed as No. 31 while the name of the respondent is listed in Part A of the same Third Schedule as No. 24. In the Trade Unions (Amendment) Decree No. 1 of 1999, which commenced on 1st September 1998, the applicant is listed as number 29 in Part C of that Decree as a trade union under Senior Staff and Employers' Associations. In the unreported case of The State v. Governor of Osun State Appeal No CA/1/161/98 delivered on Monday 11th December 2006 at pages 13 and 14 His Lordship Hon. Justice J. A. Fabiyi JCA (as he then was) has this to say - From the tone of the recitals, it is clear to me that the lawmaker did not contemplate legislating the 35 Senior Staff Unions out of existence by implication as gleefully presented on behalf of the respondents. To say that the 35 Senior Staff Unions which include inter alia Academic Staff Union of Universities (ASUU), Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASON) and Nigeria Employers' Association of Banks, Insurance and Allied Institutions and the appellant are all legislated out of existence by implication and that they should be pronounced 'dead' sounds like a child's play. I take judicial notice of the fact that ASUU from 1996 - May 1999 continued to perennially agitate sometimes to the point of boredom even under maximum military rule without much inhibition. And under the current democratic dispensation, protracted agitation continued until a while ago when common sense appears to be prevailing. I do not buy the idea that 35 Senior Staff Unions have been legislated out of existence by implication. It is my considered opinion that to get any of the 35 Senior Staff Unions in Part B of the Third Schedule to the principal Act proscribed or legislated out of existence, such must be expressly made. It cannot be done by surreptitious means. If a union has ceased to exist, section 7 of the Principal Act provides for cancellation of its registration by the Registrar. It has not been shown that such a step was taken against any of the 35 Senior Staff Associations, appellant inclusive in Part B. Refer to Nigerian Nurses Association & anor v. Alt. Gen. Federation & 2 ors (supra) at p. 12. I quite appreciate that the appellant, being a trade union, has legal personality. Refer-to Bonsor v. Musicians Union [1956] AC 104. The appellant's registration has not been shown to be cancelled. As well, its certificate has not been proved as having been cancelled. Its existence has not been terminated. It is a legal person whose 'birth' and 'death' are determined not by nature but by law on paper, not by implication. With all these statutory provisions showing that the applicant is a trade union duly registered and recognized, and also with his Lordship's pronouncements in the unreported case cited above we have no reason not to apply, and indeed comply with, the Court of Appeal's decision that the applicant is a trade union fully registered and recognized in Nigerian statutes and also by our judicial system. We hereby hold that the applicant in this case, The Road Transport Employers' Association of Nigeria (RTEAN), is a trade union registered and recognized to operate in the transport industry in this country. We also painstakingly went through the relevant statutes on this dispute and we do not find any one with the provision stating that the respondent's union is superior to the applicant's union in the transport industry in Nigeria; neither did we find any authority that permit's the respondent to have control over the loading of passengers or the operations of the applicant in any motor park or designated loading unit in Osun State. This Court does not know how the respondent arrived at the loading ratio of 5 to 1 against the applicant. The respondent did not even file any statement of defence neither did it address the court on this dispute despite all the ample opportunities given to it for that purpose. We therefore hereby hold that the relevant statutes on this dispute do not make the applicant subservient to the respondent neither does any of them permit the respondent's union to exercise any control over the applicant especially on the loading of passengers in motor parks or in designated loading points in Osun State in particular. For the avoidance of doubt, the instant judgment is given in line with the provisions of Order Rule 2 of the National Industrial Court Rules 2007. We hold that the applicant is a trade in duly registered and recognized under Nigerian laws. We also hold that the respondent ha;-right or authority to exercise any form of control over the applicant particularly in deciding loading ratio 5 to 1 against the applicant in motor parks and designated loading points in O State, the respondent having failed to show the court the authority under which they so ac Both unions, the RTEAN and NURTW, are equal before the law and must enjoy equal treatment. The loading ratio must, therefore, be 1 to 1 in all motor parks and designated load points in Osun State. All the reliefs prayed for by the applicant are hereby granted. We, however make no order as to cost. Judgment is entered accordingly. Hon. Justice B. A. Adejumo President Hon. Justice B. B. Kanyip Hon. Justice K I. Kola-Olalere Judge Judge