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COMRADE ADENIYI BABATUNDE SOLARU -VS- COMRADE AHMED

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED 31ST JANUARY 2018                                              

SUIT NO: NICN/ABJ/369/2014

 

IN THE MATTER OF TRADE UNION ACT

 

BETWEEN:

COMRADE ADENIYI BABATUNDE SOLARU           ……………………    CLAIMANT

AND

  1. COMRADE AHMED MANZO D.G                
  2. COMRADE GBENGA POPOOLA
  3. COMRADE IHUOMA M.C
  4. COMRADE LEON ESEBANME
  5. COMRADE BATURE Y.
  6. ASSOCIATION OF SENIOR CIVIL SERVANT OF NIGERIA (ASCSN)

      FEDERAL MINISTRY OF AGRICULTURE CHAPTER.

  1. NIGERIAN CIVIL SERVICE UNION, FEDERAL MINISTRY OF

     AGRICULTURE CHAPTER                                                                                                                     DEFENDANTS

  1. NIGERIAN UNION OF CIVIL SERVICE SECRETARIAL AND STENOGRAPHIC

     WORKERS, FEDRAL MINISTRY OF AGRICULTURE CHATPER

  1. AGRICULTURE & ALLIED EMPLOYEES UNION OF NIGERIA, FEDERAL MINISTRY

     OF AGRICULTURE CHAPTER

  1. AMALGAMATED UNION OF PUBLIC CORPORATIONS, CIVIL SERVICE TECHNICAL

       & RECREATIONAL SERVICE EMPLOYEE,  And FEDERAL MINISTRY OF

        AGRICULTURE CHAPTER.

  1. HONOURABLE MINISTER OF AGRICULTURE AND RURAL DEVELOPMENT
  2. PERMANENT SECRETARY, FEDERAL MINISTRY OF AGRICULTURE AND RURAL

       DEVELOPMENT.

REPRESENTATION

  1. O. AWEDA for the claimant

No appearance for the defendants

JUDGEMENT

 

  1. The claimant, by a General Form of Complaint with the accompanying frontloaded documents, approached the Court for the following reliefs:

  1. A DECLARATION that the body known and called the Joint Negotiation Council (JNC) Federal Ministry of Agriculture and Rural Development Chapter Abuja is an illegal body unknown to the constitution of the 6th -10th Defendants particularly the 6th Defendant.

  1. A DECLARATION that all activities and programs being carried out and/or proposed to be carried out for and on behalf of the 6th Defendants by the 1st -5th Defendants in the name of the said Joint Negotiation Council, Federal Ministry of Agriculture and Rural Development Chapter Abuja is illegal, null and void

  1. AN ORDER of this Honourable Court restraining the 11th and 12th Defendants from recognizing, patronizing or dealing with the 1st -5th Defendants for and on behalf or in place of 6th — 10th Defendants particularly the 6th Defendant on matters relating to staff/members welfare and other related issues.

  1. AN ORDER of this Honourable Court restraining any person(s) particularly the 1st — 5th Defendants in the name of Joint Negotiating Council (JNC) from taking any action(s) in the name, on behalf of or carrying out the responsibilities of the individual unions of 6th – 10th Defendants particularly the 6th Defendant of the Federal Ministry of Agriculture and Rural Development Chapter, Abuja without the 2/3 majority resolution, approval and written consent sought and obtained from the various Executive/member.

  1. A PERPETUAL INJUNCTION restraining the 1st — 5th Defendants jointly either as individuals or as a body known as Joint Negotiation Council (JNC) Federal Ministry of Agriculture and Rural Development from parading themselves and/or carry on any activity pertaining to staff/members welfare, training and Human Resources related issues in the name of individual unions i.e 6th -10th Defendants particularly the 6th Defendant in the Federal Ministry of Agriculture and Rural Development Chapter Abuja.

  1. The Defendants/Applicants filed a NOTICE OF PRELIMINARY OECTION on 19th Ma y, 2015 and dated same day, praying the court for AN ORDER of this Honourable Court dismissing Claimant’s suit.

  1. GROUNDS FOR THE APPLICATION
  2. That this Honourable Court lack jurisdiction to entertain this matter.
  3. That the claimant/respondent has no locus stand to institute this action.
  4. That the condition precedent to institute this action has not been fulfilled.

  1. WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARYOBJECTION

 

  1. ISSUES
  2.                            Whether this Honourable Court has jurisdiction to entertain this matter.
  3.                            Whether the claimant has fulfilled the condition precedent to institute this matter.

 

  1. Learned counsel to the defendants submitted that Jurisdiction is the live wire that gives life to a cause of action and that this Honourable Court does not have the jurisdiction to entertain and determine the Claimant’s case for the following reasons:

  1. a)The claimant lacks the locus standi to institute this action.
  2. b)The claimant has not fulfilled the condition precedent to institute this matter.
  3. To justify our foregoing position, we shall proceed to argue the two issues.
  4. I.N.E.C. V. OKORONKWO (2009) ALL FNLR PT488 PAGE 245 PARAS F-G.

 

  1. He submitted that in the instant case, the claimant is not a proper party to sue in this Honourable Court as he lacks the locus standi”. UZOHO V N. C. p (2007) ALL FWLR (L 394) page 395 para. E.

 

  1. Furthermore, that it is trite law that for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent claimant and competent defendant. AJIBOLA V. PSTSC. EKITI STATE (2007) ALL FWLR (PT350) PG. 1355, PARAS. E — F.

 

  1. Counsel assuming without conceding the claimant is a staff of the Federal Ministry of Agriculture and Rural Development and as well a member and Vice Chairman of the above Ministry’s chapter of the Association of Senior Civil Servant of Nigeria, submitted that his act of filing this matter before this Honourable Court contravened Rule 40 of the Association of Senior Civil Servant of Nigeria which requires any aggrieved member to follow certain led down procedures before approaching a court of law.

  1. He submitted that if a law requires the fulfillment of precondition in any aspect of Nigerian legal system, non-fulfillment of such condition will be prejudicial to the party in default as the party must scale the initial hurdles first and that is the fulfillment of the condition. Adesanaje V. Adewale (2006) 10 MJSC I @ 15-16 per Tobi JSC; AGIP V. AGIP (2010) I MISC 98 @ 139; INI OKU UTUK V. THE OFFICIAL LIQUIDATOR (2009) ALL FWLR PT 475 PAGE 1 780.

 

  1. The Claimant/Applicant filed a 20 paragraph COUNTER AFFIDAVIT TO NOTICE OF PRELIMINARY OBJECTION deposed to by the Claimant/Applicant.

  1. CLAIMANT’S WRITTEN ADDRESS IN SUPPORT OF COUNTER AFRDAVIT

  1. ISSUE

Whether having regard to Exhibit FMA 1 (annexed by the Applicants herein) and section 40 of the Constitution of the Claimant’s Association of Senior Civil Servant of Nigeria (ASCSN), this Honourable Court has jurisdiction to adjudicate this suit.

 

  1. Claimant Counsel agreeing with the Defendants/Applicants submitted that Jurisdiction is the live wire that gives life to a cause of action. And with the position of the Court in INEC V. OKORONKWO (2009) ALL FNLR PT.488 Pg. 245 Para F-G. He submitted further that what determines jurisdiction of the court is the cause of action of action of the plaintiff in the Writ of summons. OMNIA NIGERIA LIMITED v. DYKTRADE LIMITED (2007) 7 S.c (No.2) Pg 55, Para 25-35; NV SCHEEP v. ARAZ (2000)N12 S.C (Pt.1) 164:
  2. (2000)15 NWLR part 691 Pq.668; AYORINDE v. ONI (2000) 2 S.C. 33; (2000) 3 NWLR Pt649 Pq.348 NNADI V. OKORO (1998) 1 NWLR (Pt. 535) Pg.573.

  1. ISSUES

(i)                 Whether or not the Claimant have the Locus Standi to institute this action

(ii)               Whether this Honourable Court has jurisdiction to entertain this matter.

(iii)             Whether Stanley Solaru B and Adeniyi Babatunde Solaru are same persons.

 

  1. Counsel to the Claimant submitted that Locus Standi had been defined as the right to appear and be heard in court, a legal capacity to institute an action or proceeding in a court of law, and that a person is said to have Locus Standi where the relief claimed would confer personal and (or) peculiar interest. ADESANOYE V ADEWOLE (2006) 14 NWLR (PT 1000) at 242.

 

  1. He submitted that the deponent lacks locus to represent the two unions at the same time.

 

  1. On whether this Honourable Court has jurisdiction to entertain this matter.

 

  1. Counsel submitted that the extant law creating this Court confer on it the necessary Jurisdiction as spelt out in Section 254 C of the Constitution of the Federal Republic of Nigeria; Section 7 (1) (c) of the National Industrial Court; MADUKOLU Vs NKEMDILIM (1992) 9 NWLR (Pt. 263) @ 80. He submitted that the claimant had met all the conditions aforelisted and that what ultimately determine Jurisdiction is the relief claimed before the court. AKINFOLARAN Vs AKINOLA (1994) PT 335 page 654.

 

  1. On whether Stanley Solaru B and Adeniyi Babatunde Solaru are same persons.

 

  1. Counsel contended that the Defendants cannot claim to be ignorant of the correct and proper name of the Claimant, as he had been working with them for years and that the employers who posted Stanley Solaru B. out of the ministry cannot also claim to be ignorant of the true name of the Claimant, they confirmed him, they promoted him, they issued identity card to him. There is also a nominal roll for them to cross check. NJEMAZE Vs SHELL BP PORT HACOURT (1966) 1 NLR page 8, per Bairamia, JSC page 1 0-11.

 

  1. In the processes of considering the application the court discovered that the defendants had earlier filed the very same preliminary objection on the 19th May 2015, which was struck out in a ruing of this court delivered on the 26th January 2016.

  1. Without any leave of court the defendants filed the self-same objection on the very same grounds on the 14th April 2016 and in their accompanying written address urged the court to uphold their objection of 19th May 2015. I find that the defendants preliminary objection is not properly before this court.

  1. However in the interest of justice and  in the event that the superior courts do not agree with regard to the above  finding and bearing in mind the pronouncement of the apex court in AFRO CONTINENTAL NIG LTD V COOPERATIVE ASSOCIATION OF PROFESSIONALS INCORPORATED (2003) 5 NWLR (PT. 813) 330 AT 317 -138 followed in in NYAWEN v. BADON & ORS (2016) LPELR-40825(CA) that lower court should determine all issues before them , I shall proceed to determine this objection on its merit.

 

  1. On the             15th November, 2017 the court in line with Order 45 rule 7 adopted the defendants’ preliminary objection of 14th April 2016 and the claimant adopted his written address, and adumbrated his positions accordingly, this matter then was adjourned for ruling.

Court’s Decision

  1. Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendant’s application.
  2. The defendant’s contend that this court lacks jurisdiction on the grounds that
  3. The claimant lacks the locus standi to institute this action and that
  4. The claimant has not fulfilled the condition precedent to institute this matter

 

  1. The claimants in reaction filed their counter affidavit with accompanying exhibits and written addresses to wit they raised the issues;-

(i)                 Whether or not the Claimant have the Locus Standi to institute this action

(ii)               Whether this Honourable Court has jurisdiction to entertain this matter.

(iii)             Whether Stanley Solaru B and Adeniyi Babatunde Solaru are same persons.

  1. The position of the law in determining locus standi in a matter in limine it was state in the case of ADENUGA V. ODUMERU [2002] 8NWLR (PT. 821) 163 AT 184, which held that “in order to ascertain whether a plaintiff has locus standi, the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated”.

 

  1. This court has held  in SUIT NO. NICN/LA/586/2014 MRS OBIAGELI IKEH UNEKWE  VS. ZENITH BANK PLC & 4 ORS delivered March 8, 2017  that Locus Standi will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely effected. See also  BENEDICT OJUKWU VS. LOUISA CHINYERE OJUKWU  & ANOR( [2008] 12 SC (PT. III)1  P173 Digest of Judgement of the Supreme Court para 19691 2012 Vol. 1.

  1. It must be shown to the Court that the plaintiff has the requisite legal capacity to institute the suit. That the establishment of a legal capacity to bring an action before the Court is a condition precedent to the determination of a suit on the merit, relying on THOMAS V. OLUFOSOYE [1986] 1 NWLR (PT. 18) 669. That IN B.M. LTD V. WOERMANN LINE [2009] 13 NWLR (PT. 1157) 149 AT 199, the Supreme Court considered the issue of locus standi and held that –
  2. …locus standi is unequivocally a threshold issue. It is not dependent on the merits of        a case but on the showing of the Plaintiff’s case in his statement of claim. In other     words, the question whether a plaintiff has locus standi to sue is determinable from      the totality of the averments in the statement of claim. And there is no requisite locus    standi to sue by a plaintiff it is not necessary to consider whether there is a genuine            case on the merit.

  1. The Supreme Court held further at pages 179 – 180 as follows –
  2. The term locus standi denotes the legal capacity to institute an action in a court of law. It is a status which the plaintiff must have before being heard in court. It is a condition precedent to determination on the merits. In order to achieve the status of locus standi, the claim of the plaintiff must reveal:

(a)                A legal or justiciable right.

(b)               Show sufficient or special interest adversely affected.

(c)                Show a justiciable cause of action.

  1. In the suit the claimants reliefs are as follows;-

  1. A DECLARATION that the body known and called the Joint Negotiation Council (JNC) Federal Ministry of Agriculture and Rural Development Chapter Abuja is an illegal body unknown to the constitution of the 6th -10th Defendants particularly the 6th Defendant.

  1. A DECLARATION that all activities and programs being carried out and/or proposed to be carried out for and on behalf of the 6th Defendants by the 1st -5th Defendants in the name of the said Joint Negotiation Council, Federal Ministry of Agriculture and Rural Development Chapter Abuja is illegal, null and void

  1. AN ORDER of this Honourable Court restraining the 11th and 12th Defendants from recognizing, patronizing or dealing with the 1st -5th Defendants for and on behalf or in place of 6th — 10th Defendants particularly the 6th Defendant on matters relating to staff/members welfare and other related issues.

  1. AN ORDER of this Honourable Court restraining any person(s) particularly the 1st — 5th Defendants in the name of Joint Negotiating Council (JNC) from taking any action(s) in the name, on behalf of or carrying out the responsibilities of the individual unions of 6th – 10th Defendants particularly the 6th Defendant of the Federal Ministry of Agriculture and Rural Development Chapter, Abuja without the 2/3 majority resolution, approval and written consent sought and obtained from the various Executive/member.

  1. A PERPETUAL INJUNCTION restraining the 1st — 5th Defendants jointly either as individuals or as a body known as Joint Negotiation Council (JNC) Federal Ministry of Agriculture and Rural Development from parading themselves and/or carry on any activity pertaining to staff/members welfare, training and Human Resources related issues in the name of individual unions i.e 6th -10th Defendants particularly the 6th Defendant in the Federal Ministry of Agriculture and Rural Development Chapter Abuja.

  1. And upon a careful perusal of the claimant statement of fact particularly from paragraphs 16 and 19 reproduced below:-

  1. The Claimant further avers that he was shocked to note that the 1st – 5th           Defendants formed the illegal body known as Joint Negotiation Council (CJN)        Federal Ministry of Agriculture and Rural Development without the collective   decision of members and purportedly acting for and on behalf every member           of 6th – 10th Defendants on issues of staff welfare, right and privileges with the      Ministry.  The Plaintiff hereby pleads and shall at trial rely  on some of the      memo published to all staff of the 6th – 10th by the said JNC.

  1. The Claimant further states that the surreptitious activities  of the 1st – 5th   Defendants on the platform of the said JNC have created confusion and           misrepresentation in the minds of the management and staff of the Federal             Ministry of Agriculture and Rural Development Abuja.

  1. I find that the main claim or thrust of the claimant’s case is the question of the legality or otherwise of the Joint Negotiating Council and the activities of its members within the Ministry of Agriculture and Rural Development.

  1. The claimant in the instant case is a member of the 6th defendant and is  asking for a determination of the legality of the existence, activities of an amalgam or aggregate of certain unions, therefore, it is my finding and holding that the case of the claimant discloses a reasonable cause of action. This plank of the defendant’s motion on notice accordingly lacks merit and so is hereby dismissed.

  1. The defendants also contend that the claimant has not fulfilled the condition precedent to institute this matter to wit: this action contravened Rule 40 of the Association of Senior Civil Servant of Nigeria which requires any aggrieved member to report, at first instant the matter in writing to the Secretary -General.

  1. The claimant in response argued that the extant law creating this Court confer on it the necessary Jurisdiction relying on Section 254 C of the Constitution of the Federal Republic of Nigeria; Section 7 (1) (c) of the National Industrial Court; MADUKOLU Vs NKEMDILIM (1992) 9 NWLR (Pt. 263) @ 80. He also submitted that the claimant had met all the conditions afore listed and that what ultimate reliefs of the claimant.

  1. The pre condition to instituting an action commonly known as a pre-condition or pre action notice and in DOMINIC E. NTIERO V. NPA [2008] LPELR-2073(SC); [2008] 10 NWLR (PT. 1094) 129 SC; [2008] 5 – 6 SC (PT. II) 1, which suggests that pre-action notice may be a product of a contract, the case held that though the non-service of a pre-action notice is an irregularity, it connotes some form of legal notification or information required by law or impacted by operation of law, contained in an enactment, agreement or contract which requires compliance by the person who is under legal duty to put on notice the person to be notified, before the commencement of any legal action against such a person.

  1. In CHIEF BERTHRAND E. NNONYE V. D. N. ANYICHIE & ORS [2005] LPELR-2061(SC); [2005] NWLR (PT. 910) 623; [2005] 1 SC (PT. II) 96 (a case where section 41(1) of the Sheriffs and Civil Process Law, branded by the Supreme Court as a section enjoining a pre-action notice, was interpreted) puts it, thus non-service of a pre-action notice does not abrogate the right of a plaintiff to approach the Court or defeat a cause of action; it merely puts the jurisdiction of the Court on hold pending compliance with the pre-condition. In other words, the case is incompetent given that the requirement of pre-action notice is a condition precedent which must be met before the Court could exercise its jurisdiction. By these authorities, the non-service of a pre-action notice is an irregularity which can be cured by, say, waiver by the defendant. It is when the defendant does not waive it that it then becomes a condition precedent and so has the capacity of rendering the suit incompetent.

  1. What then is the actual nature and hence effect of Rule 40 of the 6th defendants Constitution which states that “in the event of the occurrence of a intra union dispute any aggrieved member, , Branch, Chapter or unit shall in the 1st instance report the matter in writing tot eh Secretary General” and the provisions stipulate the various actions to be taken by the Secretary-General

(b)        gives 30 days to the SC to refer to CWC and the

(c)        CWC have 90 days to settle the dis or sent it to the NWC

(d)       NWC has 90 to settle same

(e)        members must exhaust the laid down procedure

(f)        contravention of these provisions attract immediate suspension upon service of court processes.

  1. I find these provisions, although not emanating from a statue constitutes a pre-condition or pre action notice that if not waived by the defendants renders the suit irregular and and has the legal effect of suspending the court’s jurisdiction.

  1. Bearing in mind that the court’s view in relation to  the stipulation above, is that non services of a pre-condition is an irregularity, and suspends the court’s jurisdiction. Relying on NAFDAC v. ONWUKA (2014) 4 NWLR (PT. 1398) 593 @ 596 – Where it was held that “Non-service of a pre-action notice is a fundamental vice that strikes at the root of the case. The requirement must be complied with before an action can be said to be properly instituted. Failure to comply with the same will invariably lead to the action being declared incompetent. See UGWUANYI v. NICON INSURANCE PLC (2013) 11 NWLR (PT. 1366) 546 referred to.] P. 618, PARAS. C-D.
  2. Now considering that the main claim of the claimant is against the defendant 1st -6th Defendants I find that the claimant being a member of the 6th  defendant, and having found that he derives his entitlement to bring this action primarily from the said membership, I find that by that token, the claimant is required to serve pre action notice particularly on the 1st -6th Defendants, in addition to any other pre condition incidental to bring an action against the other defendants before coming to court. The claimant has not shown the court that he had complied with the provision for pre action notice. I find this action was commenced without satisfying the necessary pre conditions, puts on hold this court’s jurisdiction. This suit I find is therefore premature.

  1. The claimant had raised issues as to whether Stanley Solaru B and Adeniyi Babatunde Solaru

are same persons. I find that this is not an issue to be determined in limine, this, I find, is a subject that can only be properly resolved upon and after the hearing of evidence and such cannot be entertained at this stage.

  1. Having found that this case was commenced without recourse to the laid down procedure and without fulfillment of the requisite pre-condition, the judgement of this court is that as the suit suspends the court’s jurisdiction due to the irregularity, this case is premature and  is hereby struck out.

  1. This is the court’s judgement and it is hereby entered.

…………………………………….

HON. JUSTICE E. N.AGBAKOBA

JUDGE.

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