Anthony Oluwadare Adetoye -VS- Layo Babade & 3 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO

DATED: 15^TH OCTOBER, 2018 SUIT NO: NICN/AK/30/2017

BETWEEN

ANTHONY OLUWADARE ADETOYE ……………….. CLAIMANT

AND

LAYO BABADE
KAYODE ANIMASAUN

(SUING THEM AND ON BEHALF OF ENTIRE MEMBERS

OF ELECTORAL COMMITTEE OF NIGERIA UNION OF

JOURNALISTS, UNION STATE COUNCIL)

NIGERIA UNION OF JOURNALISTS (NUJ) ……… DEFENDANT
MR JAMES SOWOLE

(CHAIRMAN OF ONDO STATE COUNCIL OF NUJ).

FOR AND ON BEHALF OF OTHER MEMBERS/

OFFICERS OF ONDO STATE COUNCIL OF NUJ

REPRESENTATION:

Charles Titiloye with Kehinde Olowe for the Claimants.

O.B Farounbi for the 1^st -3^rd Defendants.

T.O Aguda for the 4^th Defendant.

JUDGMENT

The Claimant by a complaint on the 25^th of October, 2017 instituted this action against the defendants wherein he claimed against the defendants as follows:

A declaration that the three (3) years Constitutional tenure of Mr. James Sowole, (the 4^th Defendant) as the Chairman of Ondo state Council of Nigeria Union of Journalists (NUJ) and of the entire Officers of Ondo Council of Nigeria Union of Journalists expires on the 30^th of October, 2017 and the entire officers of the said state Council are bound to vacate their respective offices on the 30^th of October, 2017.
A Declaration that the tenure of all Committees set up by the 4^th Defendant including the Electoral Committee of Ondo State Council of Nigeria Union of Journalists (2017) expires on the 30^th of October 2017 and the said NUJ Electoral Committee cease to exist after 30^th of October, 2017 and cannot legally, validly and constitutionally conduct election into the Ondo State Council of Nigeria Union of Journalists on 3^rd of November, 2017.
IN ALTERNATIVE TO THE ABOVE

A declaration that Ondo State Council of Nigeria Union of Journalists Electoral Committee 2017, is unconstitutional an illegal having been handpicked, solely appointed and foisted on the union by Mr. James Sowole, the outgoing Chairman of Ondo State Council of Nigeria Union of Journalists (also an aspirant for the position of chairman) without regard to Constitution of Federal Republic Of Nigeria and the Constitution of the Nigeria Union of Journalist as to the committee’s independence, impartiality and compulsory good financial standing of members of the committee at the time of their appointment.

A declaration that the Screening of Aspirants contesting for elective State offices of Ondo State Council of Nigerian Union of Journalists by the Electoral Committee of Nigerian Union of Journalists (NUJ) Ondo State Council set up by the 4^th Defendant, is illegal unconstitutional, null and void as the Electoral Committee has no legal power to perform the screening function of credentials Committee separately provided for under article 9(b)(c)(d) Constitution of Nigeria Union of Journalists.
An order of perpetual injunction restraining Nigeria Union of Journalists (NUJ), Ondo State Council, Electoral Committee 2017 set-up by James Sowole, (the 4^th Defendant) and led by the 1^st and 2^nd defendants as Chairman and Secretary respectively from conducting election on the 3^rd of November 2017 or anytime thereafter into offices of Ondo state Council of NUJ.
An order of this court dissolving the Electoral Committee of Ondo State Council of Nigeria Union of Journalists (NUJ) 2017 led by the 1^st and 2^nd Defendants as Chairman and Secretary respectively and directing the constitution of fresh Electoral Committee and a separate credential committee for Ondo State Council of NUJ in accordance with the constitution of the Union to guarantee its independence and impartiality.

It is worthy of note that there was a motion for interlocutory injunction and a preliminary objection contesting the jurisdiction of this court, filed in this matter, but parties agreed on the 25^th of January, 2018 that all applications should be taken within the substantive, whilst the court granted accelerated hearing in this matter. In line with settled principles of law, the preliminary objection has to be determined before anything else as it is the determining factor for the continuity of this suit because it borders on jurisdiction.

I will therefore go on to settle the matter of jurisdiction first.

RULING

The 1^st, 2^nd & 3^rd defendants filed a Notice of preliminary objection on the 10^th of November, 2017 contesting the jurisdiction of this court and urging the court to dismiss this suit in its entirety. The grounds for the application are;

The court lacks jurisdiction to entertain the matter on the following grounds:

The suit was not initiated or constituted by due process of law.
The suit is incompetent and not maintainable in law.
The suit does not confer jurisdiction on the Honourable court to entertain it based on its constitution.
The suit is non-justifiable and not ripe for institution.
The Claimant’s Pleadings is not accompanied with recognized witnesses’ statements on oath as mandated by the Oath Act, Laws of the Federation of 2004.

In support of the application is a 75 paragraph affidavit deposed to by Bamigbola Gbolagunte male of Nigeria Union of Journalists Press centre, Ondo state Council, Behind Cultural Centre, Adegbemile, Akure, Ondo State. Also in support is a written address wherein five issues were formulated for determination to wit;

Whether the suit is instituted in accordance with the due process of law.

Whether the suit is maintainable or competent in the eyes of the law.

Whether the Court can close her eyes to the failure of the Claimant to exhaust all administrative remedies as provided by the body of Nigeria Union of Journalists (NUJ).
Whether the Claimant is not stopped from approaching the court when he has agreed to be bound by the decision and policy of the union in accordance with its Constitution.
Whether it does not amount to a waiver, on the part of the Claimant, having declared and attested and undertaken to abide by the decision of the committee whose authority he submitted himself to.
Whether the Honourable Court can exercise its jurisdiction in respect of this matter that does not satisfy mandatory requirements; considering the fact that the Claimant’s pleadings are defective, same not conforming with the mandatory provisions of the Oaths Act, Laws of the Federation of Nigeria 2004, as relates to the recognized form/content of witnesses’ statements on oath in the eyes of the law.

On issue one, counsel submitted that for a court to properly assume jurisdiction to adjudicate over a matter, “due process” must have been followed in bringing the case to court. He cited the case City Eng. (Nig) Ltd. V. NAA [1999] 11 NWLR (Pt.625) 80 and other cases. Counsel further submitted that the Claimant in its Originating processes, sued a body that is not juristic and not legally recognizable or known to law, that is, the third defendant; thus the court has been robbed of the jurisdiction to adjudicate in respect of a matter where proper parties are not before the court.

On issue two, counsel submitted that where a statute prescribes a legal line of action for the determination of an issue, an aggrieved party must exhaust all the remedies prescribed by the statute before instituting an action in court until the remedies available in that law are exhausted, any resort to court would be premature. He cited Aribisala v. Ogunyemi [2001] FWLR (Pt.317) 2867 @ 2879 C.A and some others. Counsel further submitted that the Claimant in this suit decided to go against the provisions of the Constitution of the Nigeria Union of Journalists as he failed to explore and exhaust the internal mechanisms for resolving disputes and he has broken his oath of undertaken. he urged the court to so hold.

On issue three, counsel submitted that based on the fact that the Claimant did not exhaust the internal mechanisms for resolving disputes as provided by the Constitution of the union, he is estopped from instituting this action in court as he is subject to the authority of the Nigeria Union of Journalists Constitution. Counsel cited Maya V. Oshuntokun [2001] FWLR (Pt.81) 1777 @ C.A. and some other cases.

On issue four, counsel submitted that the Claimant did not act timeously in raising his objections as to the eligibility of the 4^th Defendant, or the jurisdiction of the Credential/Election committee when he presented himself to the committee for screening purpose.

On issue five, counsel submitted that the failure of the Claimant to comply with the requisite provisions of the Oaths Act, Laws of the Federation of Nigeria 2004, renders the processes defective, inchoate and incomplete and he urged the court to dismiss the suit in its entirety.

Counsel to the Claimant on the 17^th of November, 2017 filed a 7 paragraph counter affidavit to the preliminary objection of the 1^st to 3^rd defendant applicant deposed to by the Claimant. In support of the application is a written address wherein counsel formulated three issues for determination to wit;

Whether the suit instituted by the claimant/respondent is competent.
Whether the claimant/respondent has right to judicial intervention where his rights have been encroached upon by the defendants.
Whether this Court can rule on issues of Jurisdiction raised by 1^st to 3^rd Defendant without prejudging the substantive suit.

Arguing the issues together as one, counsel submitted that the typographical error in the name of the 3^rd defendant is a misnomer which cannot vitiate the proceedings of the court and urged the court to so hold. Counsel also urged the court to hold that the issues raised by the defendants on exhausting all administrative remedy and estoppel from approaching the court are not jurisdictional issues which can be decided from the claim of the Claimant, and at this stage without any evidence from parties in this suit, this court cannot decide those issues. Furthermore, counsel submitted that the right to be heard by an aggrieved party is a personal fundamental right enshrined in the constitution which cannot be taken away in an agreement or by decision of an association or union. Lastly, counsel submitted that the Claimant complied with the Oath Act and the Evidence Act 2011in his witness statement on oath and the objection is a technicality that can be cured, as the witness statement on oath will still be adopted by the witness after being sworn during the trial of the matter. Counsel urged the court to dismiss the preliminary objection as unmeritorious and a mere ploy to delay the trial of this suit.

I have carefully gone through all the processes filed in this court by the parties, the Notice of Preliminary Objection of the 1-3^rd defendants, submissions and authorities cited by counsel to the parties, in their respective written addresses as adopted in this court on the preliminary objection.

The 1^st, 2^nd and 3^rd defendants has contended that the Claimant in its Originating processes, sued a body that is not juristic and not legally recognizable or known to law, that is, the third defendant; thus the court has been robbed of the jurisdiction to adjudicate in respect of a matter where proper parties are not before the court. They further contended that the Claimant in this suit decided to go against the provisions of the Constitution of the Nigeria Union of Journalists as he failed to explore and exhaust the internal mechanisms for resolving disputes and he is therefore estopped from instituting this action in court as he is subject to the authority of the Nigeria Union of Journalist Constitution.

1^st – 3^rd Defendants argued that the Claimant did not act timeously in raising his objections as to the eligibility of the 4^th Defendant or the jurisdiction of the Credential/Election committee when he presented himself to the committee for screening purpose. Finally, counsel posited that the failure of the Claimant to comply with the requisite provisions of the Oaths Act, Laws of the Federation of Nigeria 2004, renders the claimant’s processes defective, inchoate and incomplete and he urged the court to dismiss the suit in its entirety.

The Claimant on the other hand argued that the typographical error in the name of the 3^rd defendant is a misnomer which cannot vitiate the proceedings of the court and urged the court to so hold. Counsel urged the court to hold that the issues raised by the defendants on exhausting all administrative remedy and estoppel from approaching the court are not jurisdictional issues which can be decided from the claim of the Claimant and at this stage, as without any evidence from parties in this suit, this court cannot reach a decision on these grounds. Counsel submitted that the right to be heard by an aggrieved party is a personal fundamental right enshrined in the constitution which cannot be taken away by an agreement or by decision of an association or union. Lastly, counsel submitted that the Claimant complied with the Oaths Act and the Evidence Act 2011in his witness statement on oath and not stating the sworn declaration in the Oaths Act verbatim is a technicality that can be cured, since the witness statement on oath will still be adopted by the witness after being sworn during the trial of the matter, moreover what is contained in the deposition is in compliance with the provisions of the Oaths Act. Counsel urged the court to dismiss the preliminary objection as unmeritorious and a mere ploy to delay the trial of the suit.

On the 1^st ground of the objection, I find that the issue as to the juristic name of the 2^nd Defendant has been resolved by this court on the 25^th of January, 2018, I will therefore not dwell on this issue.

On the 2^nd and 3^rdand 4^th grounds of objection, which raises the questions as to whether the Claimant failed to explore and exhaust the internal mechanisms for resolving disputes and if he is estopped from instituting this action in court as he is subject to the authority of the Nigeria Union of Journalists Constitution, and whether the Claimant has not waived his rights to contest the decision of the committee, having submitted himself to their authority, declared and undertaken to abide by the decision of the committee. In treating these grounds, the constitution of the Nigeria Union of Journalist Exhibit A3, Article 7 (2) (v) was examined and it provides thus;

“Members who resort to legal action against the Union without exhausting all internal mechanisms for resolving disputes shall automatically be suspended from the Union”

A pertinent question now which begs to be answered is, “What are the internal mechanisms for resolving disputes within the confines of the NUJ?” and can this in anyway curtail the power of the court or any individual from seeking judicial redress where his perceived rights is been trampled upon?, Sections 6 (b) and 36 of the CFRN 1999, gives unfettered rights and access to court to all whose perceived civil rights is/under an apprehension of been affected. Moreover, I find that these grounds cannot be sustained, as it has to do with facts yet to be adduced at the preliminary objection stage. it has been settled by a long line of authorities that it is the plaintiffs case that confers jurisdiction and not the action or inaction of the parties in the course of litigation See AMAECHI V. INEC (NO.2) [2007] 18 NWLR (PT 1065) @98 also in the case of WOHEREM J.P V. EMEREUWA & ORS [2004] 13 NWLR (PT 890) @398 Iguh J.S.C stated “….if facts exist which must be adduced or established by evidence to enable a point of law to be sustained, the preliminary objection may not be properly taken”

Premised on the above therefore, I find that grounds 2, 3 and 4 of the preliminary objection cannot be taken at this stage, as there is need to take evidence, which can only be discovered in the substantive suit, these grounds therefore fails for the above reasons and I so hold.

On the 5^th ground, which is whether the failure of the Claimant to comply with the requisite provisions of the Oaths Act, Laws of the Federation of Nigeria 2004, renders the processes defective, the Oaths Act requires a voluntary sworn declaration, and the last paragraph of the Claimant’s written statement on oath reads “That I make this oath in accordance with the Oath Act in good faith and believing same to be true and correct”, this in my opinion suffices as a sworn declaration. Moreover, the court in the case of Udeagha & Ors v. Omegara & Ors [2010] 11 NWLR held per Ogunwumiju, J.C.A that “the statements of witnesses which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which were not subjected to cross examination…where a witness is in court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on oath what is contained in the irregular deposition and as I opined earlier, such adoption on oath makes all the evidence in the written deposition admissible.”

In line with this decision, it is on record that the Claimant, Anthony Oluwadare Adetoye testifying as CW1 on the 22^nd of February, 2018, was deposed and his written deposition on oath was adopted before this court. This is sufficient affirmation of his Oath in accordance with the Oaths Act. It is in the light of this, that I find that the witness statement on oath of CW1 is competent before this court, I so hold.

In all, I find that the notice of preliminary objection filed by the 1^st, 2^nd & 3^rd defendants is misconceived and unmeritorious, and it is therefore discountenanced and overruled. This court has the jurisdiction to entertain this suit. I so hold.

JUDGEMENT

The claimant filed along with the complaint all the accompanying processes i.e. the statement of facts, witness statements on oath, list of witnesses and documents to be relied upon.

The claimant’s case is that he is a member of Nigeria Union of Journalists and aspirant to the position of chairman NUJ. He averred that he applied to contest for the chairmanship position in the election of Ondo State Council of Nigeria Union of Journalists slated for 3^rd of November, 2017. He further averred that he satisfied all the conditions stipulated by the constitution of Nigeria Union of Journalists and he is eligible to contest for the said position.

He reiterated that in accordance with NUJ constitution, it is the function of the Electoral Committee to supervise the conduct of the election while the credential committee is to screen the credentials of all aspirants that will participate in the said election. He averred that by the constitution of NUJ, the electoral committee and credential committees must be set up in a manner to guarantee its independence and impartiality. According to the said provision, the State Chairman, Mr James Sowole who is also an aspirant re-contesting for the position of the chairman is precluded from appointing and/or participating in the selection of the membership of electoral committee to ensure its independence and neutrality. He also stated that the said outgoing chairman of NUJ of Ondo State Council, Mr. James Sowole on Wednesday, 26^th of July, 2017 unilaterally and without consultation with members of state working committee appointed an eleven member electoral committee for the conduct of the said election and the members of Ondo State Executive Council (SEC) of NUJ were not allowed to deliberate on the list presented by the chairman and ratify it at the said meeting.

He further averred that on Thursday 27^th July, 2017 at the congress meeting of the NUJ, Ondo State Council, the state chairman handpicked a Chairman and Secretary for the said electoral committee and announced for and on behalf of the electoral committee, its officers namely chairman (1^st Defendant) and secretary (2^nd Defendant) who will supervise the affairs of the electoral committee. He stated that the said Electoral Committee under the control and direction of the 4^th Defendant published a guideline for the conduct of election and took over the responsibility and function of the credentials committee contrary to the constitution of NUJ and screened all aspirants contesting for position in the state offices of the Union. This the claimant believed was done in order to elongate the tenure of the 4^th defendant as chairman, the election was thereafter fixed for 3^rd of November 2017 knowing fully well that the tenure of the 4^th defendant will lapse on the 30^th of October, 2017.

It is the Claimants case that it is unconstitutional for any ad hoc committee appointed by any state officer to continue to function after the expiration of tenure of such state officer, and it was wrong for the 4^th defendant whose tenure is meant to lapse on 30^th October, 2017 to have filed his nomination to re-contest as the chairman NUJ Ondo State Council before the same electoral committee which he unilaterally imposed on the Ondo State Council of NUJ.

He stated that his disqualification on allegation that he did not resign as chairman of a chapel of NUJ before the election slated for 3^rd November, 2017, contrary to the guideline issued by the electoral committee, was without basis as there was nothing in the guideline specifying the time within which an aspirant holding a position at the Chapel Chapter is supposed to resign before the election. He also alledged that some committee members are not financial members of Ondo State Council of NUJ and are therefore not eligible to be appointed and their unconstitutional membership invalidated all the actions and steps taken by the said electoral committee.

He therefore claimed against the defendants as aforestated.

The 4^th defendant on the 31^st October, 2017 and the 1^st, 2^nd and 3^rd defendants on the 10^th November, 2017 filed their statements of defence and joint statement of defence respectively, this was done together with witness statements on oath, list of witnesses, copies of documents, as well as list of documents to be relied upon. The defendants filed the same line of defence and the contents have been jointly summarized as follows;

The defendants admitted certain paragraphs of the Statement of Facts and denied all the averments that relates to the allegations. The defendants stated that the 1^st defendant is the Chairman of the Nigeria Union of Journalists Election Committee (NUJECO) of Ondo State “also known as CREDENTIALS COMMITTEE” set up for the purpose of conducting and overseeing the screening of aspirants as well as the inauguration of the emerging candidates to their respective offices. They also averred that the Ondo State Council NUJECO serves as both Electoral and Credential Screening committee for the purpose of the 3^rd Defendant’s Constitution.

The defendants stated that the 4^th defendant was re-elected unopposed into the office as the chairman of the Ondo State Council of the Nigeria Union of Journalists and this was ratified by the issuance of a Certificate of Return to him.

It is the defendants’ case that the disqualification of the claimant was based on the fact that he did not resign from his position as Chapel Chairman and/or cease from representing his Chapel at Union meetings, while contesting for the chairmanship of the union, an act which runs foul of the provision of the 3^rdDefendant’s Constitution. The defendants also alleged that the claimant did not explore and exhaust the provision as to internal mechanism of resolving disputes which is contrary to his Undertaken in his Nomination form.

According to the Defendants, the disqualification of the claimant was ratified and approved by the National Secretariat in its letter titled “RE: 2017 Council Election” having not satisfied prerequisites to contest as provided for by Exhibit A3.

The Defendants averred that in line with the constitution of the union that the credentials of the aspirants and the NUJECO Findings/Report be forwarded to the National Secretariat for final ratification and approval, this was done, consequent upon which three of the four aspirants to the chairmanship position including the claimant were disqualified, and the 4^th defendant was returned unopposed having emerged the sole candidate after the disqualification.

The defendants stated that the event of 3^rd day of November, 2017 was not an election exercise, as the screening exercise produced unopposed candidates who were to be inaugurated into their respective offices, the 4^th defendant inclusive, and was done having satisfied the requisite provision of the Constitution of the union and the screening conducted by the NUJECO and the National Secretariat.

The defendants finally averred that the claims of the claimant are frivolous, unwarranted, incompetent, unmaintainable in law, and constitutes a gross abuse of court processes, therefore pray the court to dismiss the case in its entirety with cost.

The Claimant opened his case on the 22^nd of February, 2018 by testifying on behalf of himself as CW1, he called one additional witness one Sola Obagbemisoye who testified as CW2, they both adopted their witness statements on oath and were duly cross examined, CW1 also tendered several exhibits admitted as Exhibits A1-A5

Thereafter the 1^st, 2^nd, and 3^rd Defendants opened their case on 20^th of March, 2018, they called three witnesses who testified as DW1- DW3. They adopted their written statements on oath and were also cross examined. DW3 tendered several Exhibits which were admitted and marked Exhibits B1-B7.

The 4^th Defendant opened his case on the 21^st of March, 2018 and testified for himself as DW4, he also adopted his witness statement on oath, and was cross examined.

The Defendants thereafter closed their cases, and the case was adjourned for the adoption of written addresses. Parties filed their respective written addresses which were adopted on the 20^th of July, 2018.

The 4^th defendant’s counsel T.O Aguda filed a final written address on the 20^th of April, 2018 in which four issues were formulated for determination to wit:

Whether the Nomenclature of and Misnomer in naming Nigeria Union of Journalist Electoral Committee (NUJECO) can vitiate the duty of conducting Election and screening candidates which it is saddled with.
Whether the Nigeria Union of Journalist Electoral Committee (NUJECO) 2017 Credentials Committee constituted at the Ondo State council of NUJ State Executive Councils (SEC) meeting held on the 26^th day of July, 2017 as evident in Exhibit B6 can be said to be an illegally or unconstitutionally constituted committee and whether the assertion of the claimant that the 4^th defendant handpicked all the Nigeria Union of Journalist Electoral Committee (NUJECO) members at the said meeting does not amount to credible evidence.
Whether having submitted himself to the jurisdiction of Nigeria Union of Journalists Electoral Committee (NUJECO)/Credentials Committee to screen candidates’ credentials for the Nigeria Union of Journalists, Ondo State Council election, the claimant can now renege.
Whether the disqualification of the claimant having failed to resign from his post as the chairman of the State Information Chapel as stipulated by the Nigeria Union of Journalists (NUJ) constitution is void.

On issue one, the counsel submitted that a mistake in the name of a thing is never prejudicial, the name of a thing or a place does not limit its function or duty. NUJECO is known by the parties as the committee saddled with the responsibility of screening candidates for election and going by the constitution of the NUJ (Exhibit A3), particularly Article 5A (9a-f), the Electoral Committee and Credential Committee are one, they can be used interchangeably to refer to one and the same.

On issue two, the counsel submitted that by virtue of the evidence of the DW3, DW1 and CW1, the claimant was present at the SEC meeting and the congress where the composition of the Electoral/credential committee a.k.a NUJECO was ratified and approved, but did not at any point object to the nomination and final approval of the composition of the NUJECO, or the appointment of the chairman and the secretary of the committee, it can be concluded therefore that the claimant’s assertion is baseless. Counsel cited the case of OLUSOLA FATUNBI & ANOR v. EBENEZER O. OLANLOYE & ORS 18 NSCQR Pt. 11, 810 at 822.

On issue three, counsel for the 4^th defendant submitted that Exhibit A3 (NUJ Constitution) particularly Article 4 (1a) and Exhibit B 4 proves the fact that the 4^th defendant’s check off due is deducted from his head office and claimant’s claim that the 4^th defendant’s salary has not been paid in the past two years is baseless and frivolous. He argued that it is trite that where the claimant has no equity on his side and has behaved recklessly, the court will have to be on the side of the truth and the law in support of the case. And whoever comes to equity must come with clean hands. He argued that the claimant cannot by this act of failing to object to the appointment of the NUJECO and after submitting himself to their mandate now turn around to renege. He submitted that it is trite that the court has the duty to prevent injustice in any given circumstances and avoid rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act.

On issue four, counsel submitted that Exhibit A3 contains the rules guiding the activities of the Nigeria Union of Journalists and it is expected of the members to follow the constitution strictly. He further argued that the contents of Exhibit A3 are binding on all officers of the NUJ and submitted that the claimant did not resign before collecting the nomination form neither did he resign before his screening. The 4^th Defendant finally submitted that from the totality of the evidence before the Court, the claims of the Claimant are all baseless and frivolous and same should be dismissed in its entirety. He urged the court to dismiss the case of the Claimant.

The 1^st – 3^rd defendants through their counsel O.B Farounbi filed their final written address on the 20^th of April, 2018 formulated a lone issue for determination to wit:

“Whether the claimant has proved his case with preponderance of evidence to warrant the reliefs being sought before this Honourable court?”

On the issue, counsel submitted that the evidence led before this court is unequivocal on the roles being played during the election and the constitutional duty of the 3^rd defendant concerning State Council election. He argued that the claimant failed woefully to seek any redress against the 3^rd defendant, so the reliefs being sought under paragraph 44(i) – (vi) of the statement of facts by the claimant are against the 1^st, 2^nd and the 4^th defendants. If the reliefs are granted it would be impracticable or cumbersome to achieve the remedy, as the Nigeria Union of Journalist, the 3^rd defendant is powerless to act further:

On relief (i) of paragraph 44 of the claimant, he stated that it is settled from the evidence led.

On relief (ii), he submitted that the tenure of the NUJ Electoral Committee does not expire on the 30^th October, 2017 since election was held on November 3^rd, 2017. From evidence led, the tenure of the Electoral Committee of the NUJ expired at the inauguration of the new members of the State Working Committee of the NUJ, which is 3^rd November, 2017 as the committee is bound to perform the objective and purpose of his composition which was the election.

On reliefs (iii) and (iv), he argued that the claimant is bound to adduce credible and cogent evidence to warrant the relief which he has failed to do.

On relief (v), counsel stated that the act complained of is a completed act, and the relief is vague at every material time.

On relief (vi), counsel submitted that it would be impracticable to grant the relief as same is also vague, as if the relief is granted, no authority or body is asked to take further control of the Union in Ondo State as the claimant even has no relief against the 3^rd defendant who has power to control and direct the affairs of the Union in Ondo State. He argued that since the 3^rd defendant is a necessary party to this suit whose presence is essential for the effectual and complete determination of the claim before the court. See the case of Mbanefo vs. Moluku & Ors (2014) 4 SCM 159, the 1^st, 2^nd and 3^rd Defendants’ Counsel O.B Farounbi posited that considering the pleading and the reliefs sought by the claimant, there is no established case against the 3^rd defendant. He also submitted that the 1^st– 3rd Defendants in this matter have adduced credible and cogent evidence before the Court. He finally urged the Court to dismiss the Claimant’s case with punitive cost.

The claimant’s counsel, Charles Titiloye of counsel filed a final written address on the 20^th of April, 2018 in which he formulated four issues for determination to wit:

Whether the Electoral Committee of the NUJ Ondo State Council was properly constituted by their appointment solely by the 4^th defendant on the 26^th of July, 2017.
Whether it is constitutional for the Electoral Committee of NUJ Ondo State Council to perform the constitutional role and function of independent credential committee provided for under the NUJ constitution.
Whether the actions and steps taken by the Electoral Committee of NUJ Ondo State Council in the conduct of the said NUJ election which led to the disqualification of claimant herein was lawful and constitutional.
Whether the swearing of the 4^th defendant on the 3^rd of November, 2017 after the commencement of this suit is lawful and not an act of disrespect, disregard and contempt for the ongoing proceeding in respect of this matter.

On issue one, it is the contention of the claimant that the members of the NUJECO were unilaterally appointed by DW4 who was also an aspirant in the same election, and without consultation with the members of the State Executive Committee (SEC) of NUJ, Ondo State Council. The counsel argued that the foundation upon which the electoral committee was built was not only illegal but also unlawful and all other acts perform by such illegal body is unconstitutional, null and void.

On issue two, whether it is constitutional for the Electoral Committee of NUJ Ondo State Council to perform the constitutional role and function of independent credential committee provided for under the NUJ constitution. The counsel submitted that NUJ Constitution by Article 5(9) (b) gave the credential committee of NUJ the exclusive power to screen candidate for election in the Union. And the same article provides that the committee shall act independently of the National and State executive officers of the Union. The report of the 1^st and 2^nd defendant as NUJECO members disqualifying the claimant cannot stand because it was issued by a committee not recognized by the constitution to screen an aspirant contesting the election. Since they are not members of credential committee of NUJ, they acted ultra vires their powers and perform illegal duties not assigned to them by the NUJ constitution. Therefore, he submitted that this court has a duty to dissolve the illegally constituted electoral committee who abused their statutory function of electoral committee and they acted with impunity.

On issue three, Mr Titiloye submitted, that the action of the electoral committee is despicable to have made a return for the office of the chairman while other aspirants are still protesting against their disqualifications and seeking internal means of redressing their grievances within the Union. He submitted that the electoral committee was partisan in favour of the 4^th defendant and the fact that the election was fixed for 3^rd of November, 2017 when the three year tenure of the current chairman of NUJ Ondo council expired on 30^th October, 2017. He therefore urged the court to nullify the election of the NUJ Ondo Council which was purportedly held on the 3^rd of November, 2017 and dissolve the highly compromised electoral committee.

On issue four, whether the swearing of the 4^th defendant on the 3^rd of November, 2017 after the commencement of this suit is lawful and not an act of disrespect, disregard and contempt for the ongoing proceeding in respect of this matter. The counsel submitted that the trial court has an inherent disciplinary power to ensure that parties who disregard court processes and carry out the act being sought to be restrained while an action is pending in court will not be allowed to profit or benefit from such misconduct or disrespect for the court of law. The trial court will reverse such an action even if it has been completed. Cited the case of OKOMU OIL PAL COMPANY VS.TAJUDEEN (2015) All FWLR PT 806 Pg 350 Pp @ 386-387 Para G-A. He also urged the court to make restorative orders necessary in the interest of substantial justice in this matter based on Section 18 of National Industrial Court Act, 2006 which provides as follows:

“In any case where any person acts in an office in which he is not entitled to act, the court may grant an injunction restraining him from so acting and may (if the case so requires) declare his office vacant”.

The counsel urged the court to grant the claimant’s/applicant’s prayers as contained in his motion.

T.O Aguda of counsel for 4^th defendant filed a reply on point of law to the claimant’s final address on the 7^th of May, 2018, counsel argued that the claimant’s counsel’s brilliant submission cannot take the place of evidence and neither can it shift the burden of proof from the claimant to the defendants, as it is trite that oral evidence cannot vary the content of documentary evidence, a mere averment in pleading proves nothing unless admitted by the other party. He further argued that the court is bound to act on the facts before it because the court is not an investigative body. He cited the case of TALLEN & ORS v. JANG 7 ORS [2011] LPELR 9231B (CA), the Court of Appeal held thus:

“It is not permitted by our system of adjudication that the court should on its own and in the comfort of its recess engage in sorting out a party’s case for purpose of sound footing”.

He further argued that since the claimant is not a member of State Working Committee (SWC) and he did not call any member of the said SWC to testify to his assertion and neither did he tender any minutes of meeting of the SWC wherein it shows that they were not consulted, it is therefore incredible how he came about the information that SWC was not consulted in the nomination of NUJECO/Credential Committee.

Furthermore, the counsel pointed out that Exhibit A1 is explicit enough as to the reason for the disqualification of the claimant because it is expected of a bona fide member of a Union to be abreast of the constitution of the union, how much more an aspirant to the position of the Chairman of NUJ Ondo State Council. He submitted that as an aspirant he cannot hide under the fact that Exhibit A3 did not stipulate the time within which an aspirant must resign before the date of the election.

He further submitted that the inauguration of the SWC was conducted by the National Secretariat (3^rd Defendant) who was not served with the court process in this suit as at 3^rd November, 2017.

Finally, the 4^th Defendant’s counsel urged the court to discountenance all the averments of the claimant and the counsel’s submissions as same is baseless, unsupported, unsubstantiated, unproven and frivolous and should in its entirety be dismissed.

I have carefully read all the processes in this suit, and listened to the oral evidence of witnesses and observed their demeanor, I have also painstakingly read all the submissions of counsel in their final written addresses and their oral submissions before this court. I have thereafter come up with the following issues for determination;

Whether or not the Claimant’s exclusion from contesting the election was fair.
Whether or not the Electoral Committee of the NUJ Ondo state Council was properly constituted for the purposes of the election of 3^rd November, 2017.
Whether or not the swearing in of the 4^th defendant on the 3^rd of November, 2017 despite the service on the defendants of the pending application for interlocutory injunction in this suit is not a flagrant disregard of the authority of this court.

On the 1^st issue, the contention of the defendants is that the claimant ought to have resigned his position as Chapel Chairman and/or cease from representing his Chapel as Chairman at any Union meeting. The claimant’s failure to resign they argued is contrary to the provision of Article 5 Subsection 7 of Exhibit A3.

The Claimant on the other hand contended that the guideline issued by the electoral committee did not provide the time range within which an aspirant holding a position at the Chapel Chapter is supposed to resign before the election and for this reason his disqualification from contesting the election was unfair.

Article 5 sub 7 of the NUJ Constitution, i.e. Exhibit A3 provides that:

“A member holding elective office of the Union at the state level who chooses to contest a position at the national level shall first resign from the state office. Same shall apply to holders of positions in chapels opting to contest state council offices.”

Sub 8;

“The name of registered delegates shall be forwarded to the National Secretary of the Union by the State Council Secretaries who shall collect them from the Chapels. Each state council shall forward its list to reach the National Secretariat not later than two months before the conference.”

In Owoseni v. Faloye [2005] 14 NWLR (Pt.946) 719 the court per Oguntade J.S.C held that “ it is settled law that where the legislature clearly stipulates the procedure to be followed when an act or a decision is challenged, the party aggrieved can only challenge the decision successfully in the manner laid down in the enabling statute.”

Also in Yemisi v. FIRS [2012] LPELR-7964 (CA) the court per Kekere-Ekun J.C.A held that “where the statute has laid down the procedure to be adopted, which the respondent failed to comply with, it cannot be heard to say that there was substantial compliance. The Rules must be complied with fully…”

CW1 under cross examination stated;

I was not holding any position at the time of the election, but I was an officer of a chapel of NUJ before the election.
I tendered my resignation letter before the date of the election

Exhibit A2 which is the “Report of the NUJECO Ondo State Council on the status of aspirants to positions in the forthcoming November 3^rd, 2017, delegates conference”, reads

“Anthony Adetoye”- he presented his original documents which were verified by all members of the committee. Anthony Adetoye was asked why he did not add his resignation letter as the chairman of the chapel to the nomination form as stated in the constitution, Article 5(B) 7 he claimed that he was not aware of such constitutional provision. A copy of NUJ constitution was provided for him to read the section that says he shall first resign from the chapel office.

After reading, Anthony Adetoye responded that there was a chapel (State information) congressional decision that he should continue as chairman having ended his tenure and another election in the chapel had not been concluded.

He was asked if there was any letter written to inform Ondo State Council of the expiration of his tenure as the Chairman. He said there was none.

Anthony Adetoye was questioned why he stood up to represent his chapel as the chairman at the August council congress 31-08-2017 even after he had submitted his nomination form to contest, he said he did that because his chapel had asked him to continue as their chairman.

It is clear that CW1 did not resign before he made his intention known to contest the election and when he was asked he said his chapel asked him to continue as their chairman and he also stated that he was not even aware of the constitution of the NUJ which provides that he should resign. This was as in September which was two months to the election. Now if as at two months to the election when he made his intention known to contest the election he had not resigned, I do not see how he was unfairly excluded from contesting the election as he obviously did not follow the laid down rules in the constitution and ignorance is not an excuse in law. I find therefore that the Claimant was not unfairly excluded from contesting the elections of 3^rd November, 2017 and I so hold.

On the 2^nd issue, whether or not the Electoral Committee of the NUJ Ondo state Council was properly constituted for the purposes of the election of 3^rd November, 2017.

Article 5 sub 9 of Exhibit A3 provides;

There shall be a Credentials Committee which shall examine the good financial standing of each registered delegate before the conference and the name of any delegate not in good financial standing shall be withdrawn from the list of delegates.
The Credentials Committee shall also have powers to screen candidates for election into national offices of the Union.
The Credentials Committee shall act independently of the National President, National Secretary and any other National or State officer of the Union.
Membership of the Credentials Committee shall be drawn from among members of the Union in good financial standing who have no intention to vie for offices in the said elections.
In the event of a member of the electoral Committee withdrawing from the Committee, such a member stands ineligible to contest that election and his/her state council shall find a replacement.

The contention of the Claimant is that Exhibit A3 by Article 5(9) (b) gave the credentials committee of NUJ the exclusive power to screen candidate for elections in the Union. The same article provides that the committee shall act independently of the National and State executive officers of the Union. Thus, counsel for the claimant, Charles Titiloye of counsel, argued that the report of the 1^st and 2^nd defendant as NUJECO members disqualifying the claimant cannot stand because it was issued by a committee not recognized by the constitution to screen an aspirant contesting election. Since they are not members of credential committee of NUJ, they acted ultra vires their powers and perform illegal duties not assigned to them by the NUJ constitution.

O.B Farounbi of counsel to the 1^st, 2^nd and 3^rd defendants and T.O Aguda for the 4^th Defendant on the other hand contended that a mistake in the name of a thing is never prejudicial, the name of a thing or a place does not limit its function or duty. The NUJECO is known by the parties as the committee saddled with the responsibility of screening candidates for election and going by the constitution of the NUJ (Exhibit A3), particularly Article 5A (9a-f), the Electoral Committee and Credential Committee are one, they can be used interchangeably to refer to one entity.

I am inclined to agree with the defendants on this because it is obvious from a holistic reading of the Article 5(9a-f) that the credential committee and electoral committee are used interchangeable. I find that the Credential Committee and electoral committee are one and the same and I so hold.

Was the NUJECO properly constituted? By Exhibit B6 paragraph 3 it is stated that the presiding Chairman informed the members of the SEC that the State Officers had selected eleven member Credential Committee to conduct election that would produce the Executive Officers for the State Council after the expiration of the incumbent’s’ tenure in three months’ time.

Now who are the state officers? By Article 5(pg 22 sub d) of Exhibit A3 officers of the state Council shall be:

Chairman
Vice chairman

State secretary

Assistant state secretary
Treasurer
Financial secretary

Internal auditor

Article 5(9)(c) &(d) of the same Exhibit provides that the Credentials Committee shall act independently of the National President, National Secretary and any other National or State officer of the Union. Also Membership of the Credentials Committee shall be drawn from among members of the Union in good financial standing who have no intention to vie for offices in the said elections. The 4^th Defendant/DW4 in his written statement on oath testified that even though Exhibit A3 (constitution of the NUJ) is silent on how NUJECO is to be constituted, but by “…… norm and accepted practice……”, the State Working Committee (SWC) who are also state officers of the council, are the ones to nominate members of the NUJECO/CREDENTIALS Committee, the State Executive Council (SEC) ratifies and the State Congress approves. I agree with the submissions of the 4^th Defendant to the extent that there is no specific provisions in Exhibit A3 on how the members of the credential committee should be selected, but as to his argument that it is an accepted practice, there is no evidence to support this “……accepted practice….” and in the light of the constitution of the Union i.e. Exhibit A3, particularly Article 5 (B) 7 @ page 7 and Article 5 under the sub head STATE COUNCILS (1) h @ page 23, quoted below

ARTICLE 5 (B) 7;

“NEC shall have powers to interpret the constitution and to determine any question where the constitution maybe silent”

Article 5 under the sub head STATE COUNCILS (1) h @ page 23 states

“The SEC shall perform similar functions as NEC at the State Council level, SWC shall perform similar functions as the CWC at the State Council level.”

It is on record that Exhibit B6 which was tendered by DW3 and relied upon by the Defendants (minutes of the Ondo State SEC meeting held on 26/07/2017) reads in its opening paragraphs thus;

“The presiding Chairman informed the members of the SEC that the State Officers had selected eleven member Credential Committee to conduct election that would produce the Executive Officers for the State Council after the expiration of the incumbent’s’ tenure in three months time…”

It is settled law that a condition precedent is defined as one which delays the vesting of a right, until the happening of an event see;

NIGERCARE DEV.CO.LTD V. A.S.W.B [2008] 9 NWLR (PT 109)3 @498. It is also the position of the law that “documentary evidence is the best form of evidence in proof of a case…..And oral evidence is inadmissible to vary or contradict the contents of a document-Bongo vs Governor of Adamawa State [2013] 2 NWLR (pt.339) 403. Documentary evidence is the hangar upon which the court tests the veracity of oral evidence and where oral evidence is supported by documentary evidence, it is deemed more credible” see Kabiru Musa Rangaza v. Micro Plastic Company Limited [2013] LPELR-20303 (CA)

It is my finding based on the above, that Exhibit A3 made provisions for instances such as this, and for the State officers to have picked the members of the Credential/Electoral committee, without the determination and clarification of NEC/SEC, only relying on a norm and practice which was not supported by any evidence, runs contrary to Exhibit A3, which specifies that NEC/SEC is the appropriate body empowered to take such a decision, and as there is no evidence before me that NEC/SEC was involved in the selection of the members of NUJECO or mandated the State officers to select the members of NUJECO, I find that the selection of the members of the Credential committee (NUJECO) by the state officers is ultra vires the provisions of the NUJ constitution and all norms of equity and fairness as enshrined in the CFRN 1999, particularly Section 36 (1) which provides as follows;

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person can be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”

The body is therefore illegal, and its actions invalid and void ab initio. It is a basic principle of law that you cannot place something on nothing, and since the constitution of members of the “NUJECO” has been declared illegal, it stands to reason that the screening of aspirants, financial standing/qualifications of the members of NUJECO and/aspirants resulting into the selection/election of state officers of the NUJ Ondo State Council on 3^rd November, 2017 goes to no issue and is hereby set aside. A new election/ credential committee is hereby ordered to be constituted in accordance with the constitution of the union and fresh elections to the state offices is hereby ordered to be conducted within 30 (thirty) days hereof, I so hold.

On issue 3, it is on record that the claimant in this case initiated this action and filed a motion for interim injunction which the court refused to take but directed that the Defendants should be put on notice, the Defendants were served with the motion on notice for interlocutory injunction in the following order; 1^st, 2^nd and 4th Defendants were served on 2^nd November, 2017, while the 3^rd was served on the 6^th of November, 2017.

It is however surprising that DW4 having been served with the motion for interlocutory injunction made himself available for inauguration on the 3^rd of November, 2017, despite being put on notice, the 1^st ,2^nd and 4^th Defendants chose to wilfully ignore the pending application for interlocutory injunction in flagrant disregard of whatever decision this court will take on the application, the only defence offered by T.O Aguda of counsel to the 4^th Defendant in the reply on point of law is that the 3^rd Defendant was not served with the application, and so went on to inaugurate the state officers, this is unacceptable and unbecoming, as the 1^st ,2^nd and 4^th who were served with the application actively participated in the inauguration. The position of the Law is that parties cannot foist a fait accompli on the court and in Balarabe. M .Abubakar & Ors v. Unipetrol Plc [2002] 8 NWLR (Pt.769) it was settled that the following things are required in an application to restore status quo;

That the act complained of was performed while an application was pending before this court and the other party had notice of it
That such act was capable of obstructing whatever order this court might wish to make on this application.

Every court has the duty to see that the res, the subject matter of litigation is preserved. See Amaechi v. INEC No 2 [2007] 18 NWLR Pt.1065 @ 98; Gov. of Lagos State v. Ojukwu [1986] 1 NWLR (PT.18) 621 at 636 whereby the courts have repeatedly opined that an unsuccessful application for interlocutory injunction does not entitle parties to alter the res.

Section 18 of the National Industrial Court Act, 2016 provides thus;

“In any case where any person acts in an office which he is not entitled to act, the court may grant an injunction restraining him from so acting and may (if the case so requires) declare the office to be vacant.”

Having said this, I find that Restorative or mandatory injunction by its very nature is designed to judicially instill discipline on an erring party in order for the court to maintain, restore and preserve its dignity and respect. See Ezegbu v. F.A.T.B. [1991] 1 NWLR (Pt.220) 669 at 725. In consonance with the findings in this Judgement I hereby order that the certificate of return issued to the 4^th defendant, returning him as chairman NUJ Ondo Council be withdrawn, I so hold.

I also find it necessary to make a consequential order in this case, consequential orders are orders that flows as a result of an inference flowing or resulting indirectly from the decision of the court, see AG. Kwara State& Ors v. National Judicial Council & Anor [2010] LPELR-5009(CA).

I hereby order the 3^rd Defendant to constitute a caretaker committee to manage the affairs of the Nigeria Union of Journalist, Ondo State Council, pending the time when fresh elections will be conducted into the various offices of the branch.

Finally, I find and hold that the Claimant’s claims succeed in part and for the avoidance of doubt I declare and order as follows;

The three (3) years Constitutional tenure of Mr James Sowole, (the 4^th Defendant) as the Chairman of Ondo state council of Nigeria Union of Journalist (NUJ) and of the entire members Ondo State Working Committee (SWC) of Nigeria Union of Journalist expired on the 30^th of October, 2017 and the entire officers of the said state executive council are bound to vacate their respective offices on the 30^th of October, 2017.
The selection of the Ondo state Council of Nigeria Union of Journalist Electoral/Credential Committee a.k.a NUJECO is contrary without regard to constitution of Federal Republic of Nigeria and the constitution of Nigeria Union of Journalist as to the committee’s independence, impartiality and compulsory good financial standing of members of the committee as at the time of their appointment and, as a result, all acts by the said Electoral committee is hereby declared illegal and void ab initio.
A fresh Electoral/ Credential Committee of Ondo State Council of Nigeria Union of Journalist in accordance with the constitution of the Union, should be constituted to conduct fresh elections within 30 days, into the various offices of the NUJ, Ondo State Council.
I hereby order that the certificate of return issued to the 4^th defendant, on the 3^rd of November, 2017, returning him as chairman NUJ Ondo State Council be withdrawn forthwith.
A consequential order is hereby issued on the 3^rd Defendant to constitute a caretaker committee to manage the affairs of the Nigeria Union of Journalist, Ondo State Council, pending the time when fresh elections will be conducted.