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COMRADE GEORGE KAISERYE & 5ORS VS COMRADE (MRS) BEATRICE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

 

BEFORE HIS LORDSHIP                   HON.  JUSTICE M.N. ESOWE

 

DATED: 27TH NOVEMBER, 2017   

SUIT NO: NICN/CA/10/2017

BETWEEN

 

  1. COMRADE GEORGE KAISERYE
  2. COMRADE ALERUCHIRACHAEL
  3. COMRADE PRINCE IBINABO LAZARUS
  4. COMRADE ENIGHENIIGENEWAR!     
  5. COMRADE EZE ALL WELL
  6. COMRADE SYLVESTER IDAYE

CLAIMANT

RESPONDENT

AND

 

  1. COMRADE (MRS) BEATRICE ITUBO
  2. COMRADE GIBOSON USENDI
  3. COMRADE WECHEONWU REUBEN C.
  4. MEDICAL & HEALTH WORKERS
    (UNION OF NIGERIA (MHWUN)
    RIVERS STATE COUNCIL                                             
  5. NIGERIA LABOURCONGRESS         

RIVERS STATE COUNSEL

  1. NIGERIA LABOUR CONGRESS

NATIONAL SECRETARIAT

  1. COMRADE AFONYE WILLIE JOE

DEFENDANT

APPLICANT

 

 

REPRESENTATION

ELIJAH C. BRIGGS ESQ.with MICHEAL ALLI for the claimant

  1. UWONNA Esq. with U. B. UBAIKA for the defendant

 

JUDGMENT

By an originating summons, dated the 5th day of March 2017 and filed on the 7th day of March 2017. The claimant brought this action, seeking the determination of the following questions to wit:-

 

1)Whether the 2nd term of the 1st defendant as State chairman of the 4th defendant and other elected officers has lapsed in 2nd September 2013 by virtue of the extant provision of rule 7x of the 4th defendant constitution?

 

2) Whether in view of the fact that the 1st defendant’s two term tenure as State chairman of the 4th defendant having expired since September 2013, the 1st defendant can completely remain in office and exercise rights and perform the  functions and obligations of  chairman of the 4th defendant in brazen contravention of the extant provisions of rule 7x of the 4th defendant constitution.

 

3) Whether having finished her tenure as chairman of the 4th defendant since September, 2013 the 1st defendant could acting as chairman, nominate and present delegates of the 4th defendant. In respect of the 5th delegate election?

 

4) Whether having finished her tenure as chairman of the 4th defendant since 3rd September 2013, the 1st defendant was pursuant to the extant constitution of the 4th defendant, eligible to offer herself for nomination and election as chairman of the 5th defendant? And if determined in the negative, whether the subsequent acts of the 1st defendant in parading herself as chairman of the 5th defendant is not illegal, null and void, to the extent of its inconsistency with the constitution of the 4th and 5th defendants respectively?

 

5) Whether or not the 1st defendant has  by virtue of the extant provisions of the 4th defendant constitution, the powers to nominate, appoint or divest her  responsibilities as chairman of the 4th defendant upon expiration of her constitutionally  accorded tenure to the 2nd defendant or any other person in 2017 without recourse  to the tenure and provisions of the said 4th defendants constitution?

 

Pursuant to the above, the claimant claimed against the defendants as follows:

 

1.ADECLARATION that from the end of her tenure in September 2013, the 1st defendant had ceased to be chairman of the 4th defendant and cannot completely remain in office to exercise the rights and perform the functions and obligations of chairman of the 4th defendant.

 

2.A DECLARATION  that having finished her tenure as chairman of the 4th defendant since September 2013, the 1st defendant cannot continue to act as chairman of the 4th defendant.

 

3.ADECLARATION that having finished her tenure as chairman of the 4th defendant, since September 2013, the 1st defendant cannot act as chairman to nominate herself or any one for that matter, on behalf of the 4th defendant, for election into the office of chairman, acting chairman, or caretaker chairman, or any office for that matter.

 

4.A DECLARATION that having finished her tenure as chairman of the 4th defendant since September 2013, the 1st defendant act/conduct in offering herself to be nominated and/or elected to the office of chairman of the 5th defendant is unlawful, unconstitutional, and of no effect whatsoever.

 

5.A DECLARATION that all acts, pronouncements and representations done by the 1st defendant in the capacity as chairman of the 5th defendant from 2015 till date is illegal, null and void, and consequently of no moment

 

6.AN ORDER of perpetual injunction restraining the 2nd defendant from further parading himself or continuing to act as chairman of the 4th defendant.

 

7.AN ORDER of injunction restraining the 6th defendant whether by themselves, their officers or officials, staff, directors, members, agents, proxies or privies from further dealing with, relating with or in any way recognizing the 1st defendant as Chairman of the 4th defendant.

 

AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMOMS

George Kaiserye the 1st claimant on record deposed to a 40 paragraphed affidavit in support of the originating summons. Briefly, the gist of the affidavit is that the claimants were constituted as a six man state caretaker committee to manage the affairs of the 4th defendant vide a special delegate conference held at the River State College of Health Science and Technology, Port Harcourt on the 6th of February 2017, whereas the 1st, 2nd, 3rd and 7th defendants were elected officials of the 4th defendants for 2 tenures whose 2 tenures according to them ended sometime in 2013.

 

According to the deponent on the lapse of the 1st defendants tenure as chairman of the 4th defendant, the 1st defendant acting in bad faith, availed herself to contest the 5th defendant’s election as represented of the 4th defendant after shunning all protests and efforts of members of the 4th defendant including the claimants to either step aside or convene the union delegate conference, which shall elect new officers and nominate of elect delegates to the said 5th defendants conference and elections, contrary to the constitution of the 4th and 5th defendants which stipulates that no elected state officer shall be in same office for more than 2 terms of 4 years each, whereas the 1st defendant has stayed in the office as chairman beyond  her combined 8 year tenure.

 

The deponent stated that the claimants demanded without success for the convening of the state  conference to elect new officers of the 4th defendant but the 1st defendant thwarted all such moves thereby unlawfully extending her stay in office, to enable her  appoint herself to contest the 5th defendant’s elections and also appoint her cronies as delegates to the 5th defendant conference.

 

The held the view that to be eligible to contest an office at the 5th defendant elections, a candidate shall be a delegate nominated or elected by her union and in this case, by a new executive civil of the 4th defendant.

 

The deponent stated further that till the date of filing the instant suit, the 5th defendant is having leadership tussle over its chairmanship, leading to a factionalisedlabour congress. Sequel to the above suit number NICN/OW/133/2015 was filed in the Owerri judicial Division of this court, to forestall any ensuing crisis, violence and breach of peace as each of forestall any ensuing crisis, violence and breach of peace as each of the said leaders of the 5th defendant with their supporters were giving up for a fight despite the pending of the suit, and upon being served the necessary originating processes, the 1st defendant and what the deponent called “Her Cohorts” still went ahead with the said purported elections and endorsed the 1st defendant as chairman of the 5th defendant, a position the defendant occupies till the date of filing of this suit.

 

The deponent averted that sometime in February 2017, the 1st  defendant, acting in capacity as the sitting chairman of the 4th defendant, did relinquish her position as chairman and publicly announced the appointment of the 2nd defendant as acting chairman of the 4th defendant, which to him is ultra vires her powers, and on 6/2/17, the claimants and other members of the  4th defendant, willingly  converted as state conference of the 4th defendant and decided that the claimants be appointed as caretaker executive council members, pending a legal, legitimate and  constitutionally empowered election to be conducted.

 

WRITTEN ADDRESS

In line with the rules of this court, learned counsel to the claimants filed a written address wherein the issues formulated on the face of the originating summons, were succinctly discussed.

 

ON ISSUE 1

Learned counsel referred the court to paragraph 11 in the affidavit in support of the application and exhibits C and D wherein the 1st defendant on record was elected into the office of the chairman of the 4th defendant for a second term of 4 years, to lapse in 2013.

 

He further referred the court to the provisions of Rule 7 (X) part 2 of the Constitution of MHWUN 2007 and argued that, in line with the Supreme Court’s decision in a plethora of cases, where the words used in a statute are direct, straight forward, and unambiguous, the construction of those words must be based on the ordinary plain meaning of the words.

 

He however urged this court to resolve the first issue in favour of the claimants, as same is in tandem with the spirit and letters of the 4th defendant constitution.

 

ON ISSUE 2

Learned counsel referred the court to paragraph 20-25 in the affidavit, and exhibit C and D wherein the 1st defendant refused to convoke a state delegate’s conference as clearly provided for in Rule 10 (d) (vi) constitution of MHWUN 2007, after the lapse of her tenure in 2013. He however answered issue.

 

ON ISSUE 3

Learned counsel referred the court to paras 26 – 34 of the affidavit and exhibits C, D, and E wherein the 1st defendant refused to convoke a state delegates conference as clearly provided for in Rule 10 (c) (d) (vi) constitution of MHWUN 2007 as well as Article 10 (4) vii, constitution of the Nigeria Labour Congress 2011, and also answered the above issue in the negative.

 

ON ISSUE 4

 

Learned counsel adopted their argument in issue 3 above to the extent that having her tenure as chairman the 1st defendant was not eligible to offer herself for nomination and election as chairman of the 5th defendant.

 

He submitted that the acts of the 1st defendant in parading herself as the chairman of the 5th defendant is illegal, null and void on the following premise to wit:-

  1. The 1stdefendant was not eligible to contest for the chairmanship of the 5thdefendant, her tenure as chairman of the 4th defendant having lapsed in 2013.
  2. The nomination of the 1stdefendant as candidate representing the 4thdefendant in the 5th defendant’s election was deeply flawed and illegal.
  3. The purported delegates presented, accredited and nominated to represent the 4thdefendant in the 5thdefendant election was also done in wanton disregard of constitutionally laid down rules.

 

He however referred the court to the decision of Lord Deming Mr. in the case of UAC VS MACFORY “when an action is void in law, it is incurable bad ….. You cannot put something on nothing and expect it to stand, it shall surely collapse” He urged this court to so hold.

 

ON ISSUE 5

 

Learned counsel referred the court to paras 35-39 of the affidavit and exhibit D. wherein the 1st defendant on record, ultra vires the 4th defendant constitution, imposed on the 4th defendant, the 2nd defendant as Acting Chairman, contrary to RULE 41(4) (1) (A), Rule 41 (5) (iv) (b), Rule 41 (ii) and other Rules cited above as regards the Constitution of MHWUN 2007.

 

He submitted that the said Act of the 1st defendant is contumacious, and for all intents and purposed, the 1st defendant gravely lacks the powers toward appoint or divest her responsibilities as chairman of the 4th defendant, upon expiration of her Constitutionally accorded tenure to the 2nd defendant or any other person in 2017 without recourse to the tenor and provisions of the said 4th defendant.

 

DEFENCE

In response to the originating summons filed by the claimant, the defendant, filed a counter affidavit dated the 23rd day of March 2017 and filed on the 29th of March 2017.

 

The counter affidavit was of 34 paragraphs, deposed to be Comrade (Mrs.) Beatrice Itubo, the 1st defendant on record wherein she attached exhibits A-D.

 

In the counter affidavit, the deponent deposed to the fact that the claimants are not financial members of the 4th defendant as their check off dues are not remitted to the 4th defendant, but to the National Union of Local Government Employees (NULGE) to the knowledge of the claimants, and that the claimants being monthly members of local Government Branches of the 4th defendant, lacks the locus standi to institute this action in their personal capacity.  She stated further that the constitution of the 4th defendant did not provide in any of the paragraphs that for a  person to contest for the office of the chairman of the 5th defendant, he or she must be chairman of an affiliate union of the 5th defendant, rather the only qualification required to contest for the chairmanship of the 5th defendant is the person seeking to contest for the said office must be a financial member and must be nominated and/or endorsed by the National Body of his/her parent union via the president and secretary thereof or any person/persons authorized to act and/or acting in that capacity.

 

The deponent averted that by Rule 6(a) of exhibit A the Supreme authority of the union is vested in the National Delegates Conference, and by rule 6 (E) the National executive Council shall have powers to summon an emergency or special delegates conference and that such conference was not commend to elect the claimants who are financial members of the union.

 

She argued that a breach of the provisions of the constitution of the 4th defendant can only be addressed by the financial members of the 4th defendant, with claimants.

 

She contended that her tenure as chairperson of the 4th defendant was voluntarily extended by the National Body of the 4th defendant at its special delegated conference held in Abuja on the 26th and 27th March 2013.

 

She was however nominated and endorsed by the National Body, and contested the 5th defendant’s election held on 23rd April 2015 which she won.

 

The deponent stated that this suit is premature, and speculative in nature, in that the claimants did not resort to the internal dispute resolution mechanisims of the 4th defendant before filing this suit, in accordance with Rule 28 (1) – (6).

 

She sated further that the claimants have earlier filed suit No. NICN/OW/33/2015 and NICN/YEM/62/2015, between the same parties and over the same subject matter, which was struck out.

 

WRITTEN ADDRESS IN OPPOSITION TO O.S

In his written address, learned counsel to the defendants, raised 2 issues for determination to wit:-

 

  1. Whether having regards to the doctrine of majority Rule Enunciated in the old English case of foss VS HARBOTTLE and adopted under section 229 of CAMA and in view of the facts and circumstance of this case, the claimants have the requisite locus standi to institute this action against the defendants herein?

 

  1. Whether the claimant’s suit as presently constituted is not incompetent, premature and liable to be dismissed for non-compliance with relevant condition precedents before filing same?

 

ON ISSUE 1

 

Learned counsel whole referring this court to the decision of this court per Peters J. in the case of BABATUNDE & ORS VS NITEL and ORS [2004] 49 NLLR (PT. 162) 410 and the case of ODENEYE VS EFONGA [19900 11 – 12 SC 122, submitted that to prosecute an appeal or a case, a party has to show that he has special interest, and that such interest has been adversely affected by the act or omission which he seeks to challenge.

 

He argued that the rule in foss vs Harbotle is to the effect that where a wrong is done to a company. It is only the company itself represented by a majority of its shareholders that can institute and/or bring action to redness same, and not individual shareholders or members of the company in their personal capacity, and that this rule has been held not only to incorporated bodies, but also to unincorporated associations and trade unions. He referred the court to the case of COTTER VS NATIONAL UNION OF SEAMEN [1921] 2 CH 58; ABUBAKRI VS SMITH

 

Learned counsel submitted that the claimant have failed woefully in the reliefs sought by them to state how the nomination of the 1st defendant by the 4th defendant to contest for the post of chairman of the 5th defendant congress has adversely affected their civil rights and obligation, or that such rights are   in danger of being violated or adversely affected.

 

He relied on OLAWOYIN VS AG NORTHERN NIG. [19961] 2 NSCC 165/KEYATIO VS LAGOS HOUSE OF ASSEMBLY [2000] 12 NWLR (PT. 680) 196.

 

In conclusion, learned counsel urged this court to resolve issue 1 as formulated above in the negative.

 

ON ISSUE 2

 

Learned counsel submitted that the issues raised by the claimants in this suit are not justiciable in a court of law because they relate to the internal domestic affairs or management of the 4thdefendant, and as such, these issues can only be remedied as provided in the union constitution itself. He referred the court to the case of Onuoha vs Okafor(1983) 2 SCNLR 244 @ Para G, Per Obaseki JSC, and submitted that MHWUN is a voluntary association and is governed by the principles of majority rule as such the doctrine of ultra vires does not apply, thus any decision or action taken by the union is subject to ratification by majority decision. He relied on Mbanefo Vs Molokwu (2009) 11 NWLR (Pt. 1153) 431 @454 Paras G- H; Ozigbo Vs PDP (2010) 9 NWLR (Pt. 1200) 601 @655, Paras G – H

 

Learned counsel however submitted that the dispute between the parties are intra union disputes which are redresable only through resort to the internal dispute resolution process provided for in the union constitution and do not fall within the jurisdiction of this court.

 

While reproducing the provisions of Rule 28 (1) – (6) of Exh C, learned counsel submitted that the suit is premature and incompetent because the claimants have failed to explore the internal dispute resolution mechanisms provided for in the constitution of the 4th defendant.

CLAIMANTS’ FURTHER AND BETTER AFFIDAVIT IN SUPPORT OF ORIGINATINGSUMMONS

 

The 1st claimant in response to the counter affidavit of the defendants, deposed to a 49 paragraphed further and better affidavit. Exhibits a and b were attached

 

Briefly, the deponent stated as follows;

 

  1. That it is not true that the Claimants are non financial members.
  2. That check off dues are deducted from the source in the claimants salaries
  3. That this court bestowed the right to collection of check off dues of the claimants on the 4th defendant in its decision in suit numbers NIC/19/95, and NIC/9/2001.
  4. That by the provisions of S. 5(3) (a) & (b) the LabourAct, Laws of the Federation of Nigeria, 2004 and S.3 (a) & (b) of the Trade Union Act, 2005 (as amended), it is the duty of the claimants employer to remit check-off dues to the 4th defendant, and not the claimants as being speculated by the 1st defendant.
  5. That if these deductions are being paid to a union other than the 4thdefendant to which the claimants belong, it is the duty of the 4 defendantto resolve same and not that of the claimants whose responsibility stops at ensuring that deductions are made from their salaries. This is because once these deductions are made, the claimants enjoy all the rights and privileges appertaining to members. This is evidenced by the claimants’ pay slip, showing the fact that, the claimants are full-fledged financial members of the 4th defendants.
  6. That the 4th defendant is being indolent in collecting the check-off dues deducted from the  claimants’ salaries  and wants this court, to aid it, by referring to the claimants as non financial members, when in fact, check-off dues are being deducted from the claimants’ salaries.
  7. That paragraph 5 of the defendants’ Counter-Affidavit which states that claimants are minority members of the 4th defendant is speculative in nature, as not all the claimants are members of Local Government branches of the 4th defendant.
  8. That by the strength of Rules 5 ( b) of the 4th defendant constitution which states that “any member shall have the right to initiate action at his own expense in  connection   with  any breach  of the  provision  of this constitution”, the claimants have the locus standi to institute this action in their personal capacity against the defendants herein.
  9. That contrary to paragraph 7 of the defendants’ counter affidavit, theconstitution of the 4th and 5th defendants did not provide in any paragraph  that   the   only   qualification   required   to   contest   for  thechairmanship of the 5th defendant is for the person seeking to contestforthe said office to be a financial member of his/her parent union and benominated and/or endorsed by the National body of his/her parent unionvia the president and secretary thereof or any person/persons authorizedto act and/or acting in that capacity.Rather, by  Article 29 (1) of the 6th defendant’s, nominations for election of National Officers of the 6th defendantshould be
    endorsed and forwarded by the president and general secretary (or anyother authorized officers) of the affiliated union from where the candidateemerges.
  10. That the constitution of the 4th defendant did not provide in any of the paragraphsthat the National delegates’ conference or National ExecutiveCouncilofthe 4th defendant, can convene a special delegate conferenceeitherinRivers State or any other state of Nigeria.

Aside the above depositions of the deponent, the deponent further held the view that paragraph 14 of the defendants’ counter affidavit is replete withblatant falsehood, as the constitution of the 4th defendant did not providein any of the paragraphs that a breach of the provisions of the 4th defendant’s constitution is a wrong done to the 4th defendant, which can only be redressed by the 4th defendant itself, represented by a majority of its financial members, rather Rule 5 (h) of the 4th defendant’s constitution categorically stated that “any member shall have the right to initiate action at his own expense in connection with any breach of the provisions of this constitution.

 

He further deposed to the fact that this court   has   in   a   previous suit  No. NICN/ABJ/15/2015 dismissed the position held by the 1st defendant, that the  claimants  are   not financial   members  of the  4thdefendants,  and qualification to contest election for any office of the 4″h defendant is not by being a financial member alone but both as stated therein in Rule 7 (c)  of
the 4′  defendant constitution, which provides that “To be nominated and elected a member of the National Executive Council a member must have been actively involved in union activities and must be knowledgeable in the business of the union”.

He stated that, Rule 7 (d) of the 4″ defendant’s constitution provides inter
aliathat: “To be elected a member of National Executive Council, a candidate may not be a delegate to the Quadrennial National delegates conference”. And Rule 7 (b) (i) of the 4~ defendant’s constitution states that: “the National Executive council shall consist of the following: The state chairman, in their absence the state vice-chairman.

The deponent averred that the 4th defendant’s Constitution did not provide in any of the rules thatthe tenure of elected officers of the union can be voluntarily extended in a special delegates conference at their expiration, by the National body of the 4th defendant, rather the 4th defendant’s constitution expressly stated in Rule 5 (c) that “Nonew rule shall be made or any rule altered, amended or rescinded unless agreed to by a majority vote in a secret ballot at the national delegates conference of the union”

By this clear and unambiguous section, any alteration, amendment orabrogation of any rule of the 4th defendant’s constitution   has to be agreed uponby a majority of delegates voting in a secret ballot at the National delegatesconference, and not at a special delegates conference, because the two areradically different.

Also, by Rule 6 (a) of the 4th defendant’s constitution, a National delegatesconference is held every four (4) years in the month of march but not exceedingthree (3) Months extension, that is, it has a constitutionally defined period, which is mandatory having used the expression “shall”, whereas by the provisionofRule6 (d), the special delegates conference   can be held at any time, and it is not mandatory having used the expression “may”

Furthermore, rule 6 (e) of the same constitution, makes holding of the specialdelegates conference subject to the provision of the 4th defendant’s constitution,whereas the National delegates conference, is not subject to the provisionofthe4th defendant’s constitution, as it is statutorily fixed, and not left in the power ofthe National Executive Council to decide, unlike the special delegates conference, where the power to convene it is left for the National Executive Council to decide.

He averred that the mere attachment of an unsigned and unverified minutes of thealleged special delegates conference as evidence to clothe the illegality done at the special delegates conference does not suomotu, give legitimacy to the alteration to the Constitution of the 4th defendant, neither isitstated anywhere inthe 4th defendant’s Constitution that the national body of the 4th defendant can in
a   special   delegate   conference   suspend   any   part  of  the   4th Defendant’s constitution, and extend the life span of elected officers.

 

That Rule 5 (d) of the 4th Defendant’s constitution, states that “alternationsand amendments to the constitution by whatever process shall only be valid, if it is registered by the Registrar of Trade Unions” and the 1st defendant having failed to show proof of such registration by the Registrar of Trade Unions asrequired by law, the purported alteration of the 4th Defendant’s Constitutionamounts to an exercise in futility.

 

 

PRELIMINARY OBJECTION

 

Meanwhile, by a Motion on Notice dated the 22nd day of March 2017, and brought pursuant to Order 11 Rule 1and 4 (a) of the National Industrial Court (Civil Procedure) Rules 2017 and under the Inherent Jurisdiction Of This Honourable Court the defendant/applicant for;

 

  1. An Order striking out this suit for want of jurisdiction

 

AND such further or other order(s) as this Honourable Court may deem fit to make in the circumstance.

 

The Grounds for this application were as follows:

 

  1. That the subject matter of the Claimants suit relates to the internaldomestic affairs of the Medical & Health Workers Union ofNigeria. Rivers State Council which are not justiciable before this Honourable Court.

 

  1. That the Claimants suit is premature and incompetent in that theydid not resort to and exhaust the remedies in the domestic forum ofthe Medical & Health Workers Union or the Nigerian LabourCongress constitutions, with a view to resolving the dispute before resorting to litigation in this case.

 

iii.That the Claimants lack the locus standi to institute this action, they not being financial member of the 4th Defendant Union, and not being adversely affected in any special way by the alleged conduct of the 1st to 4thDefendants.

 

  1. That the claimants filed Suit NO.NICN/OW/33/2015 at theIndustrial Court. Owerri between the same parties andthe said suit was recently struck out.

 

v That the Claimants also filed Suit NO. NICN/YEN/62/2015 at the National Industrial Court. Yenagoa between the same parties and over the same subject matter. The said suit was also recently struck out.

 

  1. That the present suit and Suit Nos. NICN/YEN/62/2015 andNICN/OW/33/2015 at the National Industrial Court Yenagoaand National Industrial Court Owerri respectively, are between thesame parties and over the same subject matter.

 

vii. That the cause of action in this present suit and those in Suit Nos. NICN/OW/33/2015 and NICN/YEN/62/2015 are substantially the same and are against the same parties and over the same subject matter.

 

viii.    That this present suit is an abuse of court process.

 

  1. That this Honourable Court lacks jurisdiction and cannot exerciseits jurisdiction to hear and/or entertain this suit.

 

AFFIDAVIT IN SUPPORT OF MOTION

 

COMRADE (MRS.) BEATRICE ITUBO the 1st defendant on record, deposed to a 26 paragraphed affidavit in support of the motion, wherein he attached exhibits A- E.

 

The gist of the affidavit is as reproduced above in the counter affidavit in opposition to the originating summons, and I shall not belabor myself, reproducing same again.

 

WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTICE

In compliance with the rules of this Court, Learned Counsel to the defendant/applicant formulated 3 issues for determination, to wit;

 

i.Whether this Honourable Court has the jurisdiction and can exercise its jurisdiction to hear and or entertain the Claimants suit in all the circumstances of this case?

 

  1. Whether the Claimants have the requisite Locus standi toinstitute this action?

 

iii. Whether this suit as constituted is not an Abuse of Court process?

 

ON ISSUE ONE (1):

 

Learned counsel submitted that the law is now well settled and trite that a Court of law can only have and properly exercise its jurisdiction to hear and determine a case before it where the following conditions are satisfied, namely:

 

  1. Where the proper parties are before the Court.

 

  1. Where the Court is properly constituted as to members and qualification.

 

  1. Where the subject matter of the case is within the jurisdiction and there are no feature  in the case which prevent the Court from exercising jurisdiction: and

 

  1. Where the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the assumption of jurisdiction.

 

He referred the Court to

 

  1. MADUKOLU vs. NKEMDILIM 1 1962) 1 ALL NLR 587at 595. (1962)2SCNLR341.2. C.B.N vs.   S.A.P. MG. <:005» 3 NAVLR (Pt. 911) 152 at 177.3. SALATI VS SHEHU [1986] 1 NWLR (PT. 15) 198  at 218.

 

He submitted that this suit is not initiated by due process of law, Condition precedents to the assumption of jurisdiction having not been fulfilled by the Claimants and there are features in this case which prevents this Honourable Court from exercising its Jurisdiction to hear and or entertain this suit, and they include;

 

  1. Non-Justiciability of the Claimants suit: Internal Domestic Affairs, ie the Claimants not being financial members of the defendants

 

  1. Failure to resort to or exhaust Internal Remediesvis a vis (Rule 28) of the Constitution of the 4th defendant, and Article 32 (1) and (2) of the 5th defendant’s constitution.

 

Based on the above and after a thorogh argument on the 2 feautures listed in the preceeding paragraph, Learned Counsel urged that Issue One (1) as formulated above be resolved accordingly in favour of the Defendants/Applicants and that this suit be struck out for being premature and incompetent.

ON ISSUE TWO (2):

Learned counsel first reproduced the decision of this court in the case ofBabatunde&Ors V. NITEL &Ors (2004) 49 NLLR (pt. 162) 410

at 444 (C) where this Court (per Peters, J) stated that “by locus standi, is meant the legal capacity of a party to institute proceedings in a court of law. See: Odeneye v. Efunuga (19900 11-12 SC 122. See also Adesanya V. President of Nigeria (1981) NSCC 146 at 156 (SC). In Babatunde’s case (supra) the learned trial Judge went on to say that:

“to be clothed with the garment of locus standi, a party approaching the court must show that his civil rights and obligation have been or are in danger of being violated or adversely affected. It is sufficient for a party to show that a civil wrong has been committed against it by an identifiable person or authority. This will only become evident in the Statement of Claim, or as in this case, Statement of Facts of the party suing.”

 

He submitted that for one to prosecute an appeal or a case, a party
has to show that he has special interest, that the interest is not vague or intangible, supposed or speculative or that it is not an interest which he shares with other members of society. Above all, he has to show that such interest has been adversely affected by the act or omission which he seeks to challenge. He referred the court to the case ofIn Re Ijelu (1992) 9 NWLR (pt. 266)414at422-423(H-A); Adesanya V. The President (supra) and InakojuV.Adeleke (2007) 4 NWLR (pt. 1025) 427 at 601-602(H-A)

Learned counsel submitted further that in this case, the Claimants not being financial members of the 4th Defendant and indeed the 5th Defendant, they lack the locus to question the appointment of delegates by the 4thDefendant Union to the   conference of the 5th Defendant Congress or the nomination of contestants to any office either in the 4th Defendant Union or 5th Defendant Congress. It cannot therefore be said that their interest isbeing curtailed or is in danger of being curtailed by the alleged actions or decisions of the Defendants with regard to the appointment of   delegates or nomination to contest for positions in the 5th Defendant NLC Rivers State Council conference and elections.

He also submitted that the Claimants have failed woefully in the
reliefs sought by them to state how the nomination of the 1stDefendantbythe 4th Defendant to contest for the post of Chairman of the 5th Defendant Congress has adversely affected their civil rights and obligation or that such rights are in danger of being violated or adversely affected.

He however urgedthis court  to resolve issue two (2) as formulated above in favour of the Defendants/Applicants.

ISSUE THREE (3):

Whether this suit as constituted is not an Abuse of Court process?

Learned counsel submitted that this suit as presently constituted is an abuseofcourtprocess, and we pray Your Lordship to so resolve issue one (1) in favor of the Defendants/Applicants.

 

To counsel, an abuse of court process means that the process of the
court has not been used bonafide and properly. In other words, an abuse of court process is not in the specie of sins commonly called an irregularity. It is a more fundamental vice which is deserving of dismissal.

 

An abuse of the process of the court may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice. For example, where two similar processes are used against the same party in respect of
the exercise of the same right and subject matter.

He relied on:  OKAFOR    VS   ATTORNEY   -GENERAL   ANAMBRA STATE (1991) (6 NWLR, PT. 200) 659.and

SARAKI VS KOTOYE ‘(1992)  9 NWLR (PT. 264) 156 PARA D-E

Counsel further reffred the court to the case of the case of NGIGE VS ACHUKWU & 2 ORS(2004)8NWLR(PT.875) Pg. 358 (0)358, where the Court of Appeal declared what amounts to Abuseof Court Process thus:

“Before applying the principle of abuse of court process to a case, the court must ensure that the:

Parties issues; and subject matter are the same”

 

Learned counsel submitted that the parties, issues and the subject
matter in this suit are the same with those of Suit Nos. NICN/OW/33/2015 and NICN/YEN/62/2015.   He referred the court to paragraphs 18, 19, 20, 21, 22 (a), (b) and (c) of the affidavit insupport of this application, and Exhibits“D and E” herein. He also referred this court to the case of AGWASIM VS OJICHIE (2004) 10 NWLR (PT. 882) Pg. 613 @ 615, where the Supreme Court unequivocally held as follows:

(a)     “Instituting a multiplicity of actions on the same subject
matter against the same opponent on the same issue

(b)     Instituting a multiplicity of actions on the same matter between
the same parties inter alia amounts to abuse of    court process”

To counsel, apart from the fact that this Suit is an abuse of Process of Court, the Defendants are sued in their personal capacity and not asrepresentative  of Medical &  Health  Workers Union of Nigeria, Rivers State Council. Nor were they should as leadership of the Medical & Health Workers Union of Nigeria. Consequently even if theCourt has Jurisdiction to hear and determine this Suit, it cannot still make any binding order against Medical & Health Workers Union of Nigeria, Rivers State Council because the Defendants are sued in their personal and/or individual capacity. Moreso, the Claimants themselves never sued/brought this action as representing the alleged Caretaker Committee of the Medical & Health Workers Union of Nigeria, Rivers State Council. He however urged this court to resolve issue three (3) as formulated above in favour of the Defendants/Applicants and against the Claimants/Respondents.

.

COUNTER AFFIDAVIT IN OPPOSITION TO .MOTION ON NOTICE/PR^IMINARYOBJECTION

GEORGE KAISERYE, the 1st Claimant on record deposed to a 25 paragraphed counter affidavit, in opposition to the Preliminary Objection, filed by the Claimant. Attached to the affidavit is Exhibit. The gist of the affidavit, is quite similar to the further and better affidavit deposed to by the claimant in support of the originating summons, and the facts thereat, are now of judicial knowledge.

CLAIMANTS/RESPONDENTS’ REPLY ON POINTS OF LAW

In his reply on point of law, Learned Counsel to the Claimant/Respondent adopted and discussed the three issues raised by counsel to the Defendant/Applicant.

ON ISSUE ONE

Whether this Honourable court has the jurisdiction and can exercise its jurisdiction to hear and/or entertain the claimants’ suit in all the circumstances of this case?

Learned counsel submitted thatThe contention of the Claimants remain that the position of the 4th Defendant Constitution which provides for internal dispute resolutionprocesses could not have been explored as the wrongdoers and tortfeasorsthemselves are the persons to whom the same application would have been made and that by the principle of Nemo Judex in Causa sua, no one is entitled to be a judge in his own case.

Moreso, this originating summons is not as a result of a dispute between the Claimants and Defendants, but that of a party approaching the Court to interpret in clear terms the extant provisions of the Union’s Constitution and NLC Constitution respectively

 

He referred the Court to Rule 28 (5), Constitution of the 4th Defendant which provides for resort to the National Industrial Court where internal organs have failed.

He argued thatRule 28(6) Constitution of MHWUN (4th Defendant) provides that each organ shall sit for a maximum of 3 months. The complaints/petitions of theclaimants have been ignored for years.

 

Referring the court to the decision of T. 0. OWOSENI VS. JOSHUA IBIO WOTISI FALOYE (2005) 14 NWLR (Pt. 946) 719 at 757 Paras B – C where OguntadeJSC Stated thus:

“It is important to stress that, laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting the jurisdiction of the court. Indeed; if such laws attempt to do so, they would be in conflict with the provisions of the constitution such laws only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it canbefore a recourse is had to the court”.

Learned counsel submitted that in the instant case, the internal dispute resolution organ “cannot” sit over their matter since they themselves are the tortfeasors and this court’s jurisdiction cannot be ousted as clearly evinced the supreme court decision cited above.

 

ON ISSUE TWO

Whether the claimants have the requisite locus standi to institute this action.

Leaened counsel while reffering the Court toRule 3(g), Constitution of MHWUN (4th Defendant) which provides that a member shall uphold and defend the Constitution of the union. And by virtue of Exhibit A in Paragraph 14 of the Claimants counter Affidavit, submitted that the facts speak for itself and need not spill gallons of jurisprudential ink on this issue.

He argued that the contention by the Defendants’ counsel that the Claimants are non-financial members is otiose and should be discountenanced. The Claimants clearly have the locus standi to initiate this action. He urged this court to resolve this issue in favour of the Claimants.

ON ISSUE THREE

Whether this suit as constituted is not an abuse of court process

Learned counsel reffred the Court to the case of NGIGE V. AKACHUKWU & 2 ORS (2004)8 NWLR (PT. 875) Pg. 358, wherein the Court of Appeal declared what amounts to abuse of court process thus:

“Before applying the principle of abuse of court process to a case, the court must ensure that:

  1. Parties
  2. Issues; and
  3. Subject matter are the same”

In the case of AGWASIM V. OJICHIE (20Q4) 10 NWLR (PT.882) Pg.613 @615where the supreme court unequivocally held as follows:

 

  1. Instituting a multiplicity of actions on the same subject matter against the same opponents on the same issue
  2. Instituting a multiplicity of actions on the same subject matter between the same parties inter alia; amounts to abuse of court process.

Learned counsel howver submitted that the parties, issues and subject matter in this suit are clearly not the same with that of NICN/OW/33/2015 and NICN/YEN/62/2015 and Learned Counsel to the Defendant admitted that those suits were struck out and not dismissed. Hence the contention as to this suit being an abuse of court process is highly misplaced in this circumstance.

 

He therefore urgedthe Court to discountenance same and resolve the said issue in favour of the Claimants.

 

DEFENDANTS’ FURTHER AND BETTER AFFIDAVIT INOBJECTION DATED THE 22NDMARCH 2017

 

COMRADE (MRS.) BEATRICE ITUBO, deposed to this 25 paragraphed affidavit and stated that the Claimants/Respondents including the 1st Claimant/Respondent are notfinancial members of the 4thDefendant/Applicantasthecheck-off duesdeducted from the Claimants’/Respondents’ salaries are never remitted tothe 4th Defendant. Rather, Claimants’ monthly check-off dues which arededucted from source are remitted to the National Union of Local Government Employees (NULGE) by the Local Government Councils where they work to the knowledge of the Claimants/Respondents.

 

The pay advice exhibited by the Claimants/Respondents only shows that their monthly check-off dues are deducted from source, but does not show that the said deductions are remitted to the 4th Defendant/ Applicant.

 

That all efforts made by the 4thDefendant Applicant to recover the said check-off dues from the National Union of Local Government Employees (NULGE) have been frustrated by the Claimant/Respondents themselves who kept insisting that they belong to NULGE  and not Medical and
Health Workers Union of Nigeria.

 

That the Claimants/Respondents by their conduct as shown in paragraph 5 of the affidavit, are in support of the remittance of their monthly check-offduesto the National Union of Local Government Employees (NULGE)towhich they claim to belong.

That in further  answer  to  paragraph  2   of Claimants’/Respondents’ Counter-Affidavit, the1stClaimant/Respondent is not and cannot be the chairman of any alleged caretaker committee of the4n Defendant/Applicant as he claims. The 4tn Defendant/Applicant has no caretaker committee whatsoever as the union constitution does not contain any provision for caretaker committee as alleged or at all.It exclusively lies within the powers of the National Executive Council (NEC) of the 4th Defendant/Applicant to convene a Special Delegates Conference of the Union, and to decide the date for the conference.

 

COURT

 

Having heard the originating summons of the claimant and the response of the defendant, their affidavits, as well as extensively digested the exhibits attached thereto, and written addresses of both counsel, for and against the application. Having also gone through the preliminary objection of the defendant, and the response of the claimant, which ruling shall be included in the body of this judgment, it is however my view that the following issues, if discussed, shall meet the justice of this case, to wit

 

  1. Whether the claimant has the locus standi, to institute this case?
  2. Whether the suit amounts to an abuse of court process?
  3. Whether the case of the claimant succeeds?

 

On Issue 1,

 

The defendant in their counter, affidavit, written addresses and preliminary objection, made heavy argument to the fact that the claimant is not a financial member of the 4th defendant, and as such they do not have any interest since the issues are within the majority members, who are also financial members of the 4th defendant. They argued that since the claimant’s check off dues are not remitted to the 4thdefendant; the claimant has no locus standi to question the decision of the 4th defendant, let alone instituting this suit, against the decision of the 4th defendant. To support their case, they relied heavily on the rule in the case of Foss vs Harbottle.

 

Locus standi is the legal right of a party to an action, to be heard in litigation before a court or tribunal. A person is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed. See the case of Okafor vs Asoh (1999) 3 NWLR (Pt. 593) 82 CA; Guda vsKitta (1999)12 NWLR (pt.629) 21 CA

 

It is trite that for a litigant to invoke the judicial power of the court, he must show sufficient interest or threat of injury he has or will suffer from the infringement complained of. This interest or injury test is the yardstick in determining the question of the locus standi of a complaint, and it is to be determined in the light of the facts or special circumstances of each case. See the case of AG Akwaibom State vs Essien (2004) 7 NWLR (Pt. 872) 288.

 

I must not forget to point out the fact that it is a well-established principle of law that a defendant who challenges in limine, the locus standi of a plaintiff, and in this case Claimant, is deemed to accept as correct, all the averments contained in the plaintiff’s statement of claim, and in this case, originating summons. See the case of Adesokan vs Adegorolu (1997) 3 NWLR (Pt. 493) 261 SC.

 

That said, Exh A attached to the claimant’s further and better affidavit shows sufficient proof to the fact that the check off dues of the claimant is being deducted from the claimants salary. This is a fact admitted by the defendant. Exh B is the ruling of this Court, per Hon Justice B. A. Adejumo, OFR, the Hon President of this Court. the claimant relied heavily on this document to state that this court ruled that the claimant are financial members of the 4td defendant, and that the 4th defendant have been reluctant to recover the check off dues of the claimants which is being deducted on a monthly basis and remitted to another union. The defendant did not oppose this fact, but rather stated that the conduct of the claimant has made it impossible for the 4th defendant to recover the check off dues of the claimant. The defendants however failed to profer evidence nor state how the claimant stopped them from collecting the check off dues from the employers of the claimants. Moreso, it is trite that the union has a duty to collect check off dues of its members. In making sure that it performs this duty, the union liaises with the employers of its members to ensure that the appropriate dues are deducted and remitted to them. It is never the duty of the employee, and in this case the claimants, to compel their employer to remit their check off dues to a particular union or the other. It is not the duty of the employee to make sure that the his check off dues is remitted to the right union because as at the time such dues are deducted, the employee does not have control of the money. The dues are deducted from the source, and the balance paid to the employee.

 

Furthermore, I have looked at the constitution of the 4th defendant. By paragraph h, rule 3 of that constitution, once a member pays his contributions to the funds of the union, he or she shall participate fully in the affairs of the union. Since the claimant’s dues are being deducted monthly, it means that they pay their contributions monthly. The 4th defendant whose duty is to ensure that those dues are remitted to them should go ahead and fight it out with the employers of the claimant, and the union to which those dues are remitted to, A man is not supposed to suffer for the sins of another man, or the negligence of duty of another man, and I so hold.

 

Consequently, and for the reason above, I answer issue 1 in the affirmative, and in favour of the Claimant. The claimants are members of the 4thdefendant, and have a reasonable interest in the affairs of the defendant.

 

ON ISSUE 2,

 

The defendant equally argued that this suit is an abuse of court process since the claimant had already instituted this suit in the Owerri and Yenegoa judicial divisions of this court, and the said suit, have the same parties, and the same subject matter.

 

There is no point dwelling too much on this issue. A quick look at the originating processes of the two suits, compared with this one reveals that the parties are different, the reliefs sought in the three suits are also different.

 

On the issue of exhausting internal dispute resolution mechanism, by rule 28(2) of Exh D attached to the originating summons, where there is dispute, appeal first lies to the state administrative council, executive council and working committee, and if dissatisfied, appeal lies to the zonal leadership, before the national leadership. Although it may be argued that that the state executive are the ones that has issues with the claimants and the defendants maybe part and parcel of the zonal and national leadership and as such the outcome of the various appeals the basic ingredients of fair hearing and natural justice, but the constitution of the 4th defendant makes it compulsory for recourse to be made to them before resorting to any external arbitration. This is a condition precedent the claimant must have to fufill before commencing this action. The court cannot usurp the powers of the zonal and national leadership of the 4th defendant to consider the issue first.

It is however on this note that I will resolve this issue in the affirmative and in favour of the defendant

 

On Issue 3,

 

Sadly issue 3 can no longer be determined at this stage as result of the fall out of issue 2.

 

Consequently, and for the few reasons given above, this court finds and holds that this suit is premature, and therefore liable to be struck out. The suit is hereby struck out and the defendants are hereby ordered to go back and exhaust all internal dispute resolution mechanism before approaching this court.

 

Judgment is entered accordingly.

 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

 

…………………………………………….

HON JUSTICE M. N. ESOWE

PRESIDING JUDGE, CALABAR DIVISION

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