Incorporated Trustees of Tricycle Owners & 3 ORS -VS- Federal MINISTRY OF LABOUR AND EMPLOYMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: THURSDAY MAY 31^ST 2018 SUIT NO. NICN/LA/504/2016

BETWEEN:

INCORPORATED TRUSTEES OF TRICYCLE

OWNERS AND OPERATORS ASSOCIATION OF NIGERIA

COMRADE JOSEPH ODUSANYA CLAIMANT
ALHAJI GANIYU DAUDA
ALHAJI SHAKIRUDEEN AROWOYE

AND

FEDERAL MINISTRY OF LABOUR AND

EMPLOYMENT

HONOURABLE MINISTER FOR LABOUR

AND EMPLOYMENT

REGISTRAR OF TRADE UNIONS
TRICYLE OWNERS ASSOCIATION OF NIGERIA DEFENDANT
COMRADE AUGUSTINE APEH
MR. BABATUNDE AYENOGUN

(The 5th and 6th Defendants sued in their capacity as

National Executives of the 4^th Defendant)

Representation:

Gbade Oladije with Sunday Ameh appears for the Claimants

Femi Aborisade with Mark Nosa Imonitie appears for 4^th – 6^th Defendants

F O Bossman with P T Adaramewa appears for 7^th – 8^th Defendants

JUDGMENT

Claimants commenced this action by way of Originating Summons on the 2^nd August 2016. They amended their Originating Summons pursuant to the orders of Hon. Justice BB Kanyip made on the 23^rd day of May 2017. The Claimants’ seek for the determination of the following questions:

Whether the registration of the 4^th Defendant by the 3^rd Defendant, upon the application of the 5^th and 6^th Defendants with a name and for a purpose/object similar to that of the 1st Claimant infracts/violates the scope, power and authority of the 1^st Claimant.
Whether the failure of the 5^th and 6^th Defendants to disclose the existence of identity of the 1^st Claimant, an incorporated trusteeship, identical in name and in purpose/ objects as that of the 4^th Defendants, renders the registration of the latter to be fraudulent and liable to cancellation pursuant to Section 7 (1) (a) of the Trade Unions Act
Whether the registration of the 4^th Defendant by the 3^rd Defendant, upon the application of the 5^th and 6^th Defendants, despite the latter’s awareness of the existence of the 1^st Claimant is tantamount to an unlawful/improper act capable of portending serious disharmony and delusion amongst members of the 1^st Claimant.
Whether the registration of the 4^th Defendant as a distinct trade union by the 3^rd Defendant, pursuant to the application of the 5^th and 6^th Defendants is proper, despite the subsistence of the National Union of Road Transport Workers, a parent union/body, to which all road transporters/workers, including the 1^st plaintiff is affiliated/ accredited to.

In the event of answering these questions in the affirmative, the Claimants’ pray for the following reliefs:

A DECLARATION that the registration of the 4^th Defendant by the 3^rd Defendant, upon the application of the 5^th and 6^th Defendants, despite being aware of the existence of the 1^st Claimant constitutes an usurpation of the authority and power of the 1^st Claimant and same is likely to cause disharmony and delusion amongst members of the 1^st Plaintiff.

A DECLARATION that the registration of the 4^th Defendant pursuant to the application of the 5^th and 6^th Defendants despite being aware of the existence of the 1^st Claimant is improper and fraudulent and as such renders the registration of the 3^rd Defendant liable to cancellation pursuant to Section 7(l)(a) of the Trade Union Act.

A DECLARATION that the 1^st Claimant is the proper and only authorised association to collect levies, rates and dues from all tricycle operators and owners in Nigeria.

A DECLARATION that the registration of the 4^th Defendant by the 3^rd Defendant pursuant to the application of the 5^th and 6^th Defendants with a name and for a purpose similar to that of the 1st Claimant contravenes the provisions of Section 7 (l){a) of the Trade Union Act.

A DECLARATION that the registration of the 4^th Defendant by the 3^rd Defendant pursuant to the application of the 5^th and 6^th Defendants was obtained by fraud and as such, the registration of the 4^th Defendant is liable to cancellation pursuant to Section 7(l)(a) of the Trade Union Act.

AN ORDER setting aside any provisional recognition or authorisation granted by the 7^th And 8^th Defendants to the 4^th Defendant authorising/ permitting the latter to commence the administration and management of all tricycle operation and related activities in Lagos.

AN ORDER OF PERPETUAL INJUNCTION restraining the 5^th and 6^th Defendants forthwith from parading themselves as executives of the 4^th Defendant association and from collecting levies, dues or rates form tricycle operators or owners in Nigeria.

AN ORDER OF PERPETUAL INJUNCTION restraining the 7^th and 8^th Defendants from according provisional recognition to the 4^th Defendant as the association/body responsible for administering tricycle activities in Lagos state and from overseeing the affairs of tricycle operators and owners in Lagos State.

AN ORDER directing the 3^rd Defendant to immediately cancel the registration of the 4^th Defendant for being in contravention of Section 7(1)(a) of the Trade Union Act.

AN ORDER directing the 3^rd Defendant to immediately strike out the name of the 4^th Defendant from the Register of Trade Unions.

The summons is supported by a 39-paragraph affidavit deposed to by Alhaji Shakirudeen Arowoye and supported by 8 exhibits. In addition and as is required by the Rules, the summons is accompanied by a written address in support of the originating summons.

Status of the Parties:

As deciphered from the affidavits in support and in opposition of the Originating Summons, The 1^st Claimant is a body corporate duly registered as an incorporated trusteeship pursuant to Part C of the Companies and Allied Matters Act, 2004. The 2^nd Claimant is the National and State Chairman of the 1^st Plaintiff. The 3^rd Claimant is the Lagos State Treasurer of the 1^st Claimant and also the Chairman of the Ajegunle branch. The deponent is the Lagos State Assistant Secretary of the 1^st Claimant and the Branch Chairman of the Isolo branch of the 1^st Claimant. The 4^th Defendant was registered as a Trade Union by the 5^th and 6^th Defendants. The 5^th Defendant is the National Chairman of the 4^th Defendant. The 6^th Defendant used to be a member of the 1^st Claimant and is the National Vice-Chairman of the 4^th Defendant. The other Defendants are members of the Executive arm of the Government of the Federation and of Lagos State Government.

Case of the Claimant:

Claimants’ contend that The 6^th Defendant while member of the 1^st Claimant was the branch secretary of the Ojo branch, Lagos until he was expelled from 1^st Claimant. Executives of the 1^st Claimant on the 29^th day of July, 2016 were informed by their respective branch officers/levy collectors that tricycle members declined remitting funds due as levies and dues for the said day. Their further inquiries revealed that several strange persons purporting to belong to the 4^th Defendant stormed the parks and already collected levies (running into millions of naira). Investigations disclosed that the 6^th Defendant in conjunction with the 5^th Defendant upon exiting the 1^st Claimant proceeded to register the 4^th Defendant with the 3^rd Defendant, with a name and for an object/purpose similar to that of the 1^st Claimant.

Claimants aver that the registration of the 4^th Defendant was not sanctioned/approved by tricycle operators and owners in Nigeria; rather is an invention of the 5^th and 6^th Defendants. That the 5^th and 6^th Defendants, since registering the 4^th Defendant as a trade union has operated same as the 1^st Claimant, by issuing out levies/dues tickets to members of the 1^st plaintiff and in so doing diverted/dissipated the funds/resources due to the 1^st Claimant. The 5^th and 6^th Defendants have also proceeded to converge meetings, at the National, state and branch levels and also constituted factional national, state and branch executives, whose scope of operations are greatly in conflict with that of the 1^st Claimant. 1^st Claimant states that it is duly affiliated and accredited to the National Union of Road Transport Workers.

Claimants further state that the registration of the 4^th Defendant was obtained by fraud and non – disclosure of material facts and information since the 3^rd Defendant would not have registered the 4^th Defendant, if information regarding the existence and scope of operations of the 1^st Claimant were disclosed or made available to him at the time of applying for the registration of the 4^th Defendant; and that notwithstanding the existence/pendency of the instant suit, the 4^th – 6^th Defendants have applied and obtained provisional recognition from the 8^th Defendant.

Submissions in favour of the Claimant:

In their Written Address in support of the Originating Summons, Claimants raised the following issues as relevant for determination:

Whether the prior existence of the 1^st plaintiff negates the subsequent registration of the 4^th Defendant
Whether the registration of the 4^th Defendant was obtained by fraud and as such renders same liable to cancellation pursuant to Section 7(1)(a) of the Trade Unions Act.

Claimants upon reproducing sections 3 and 5 of the Trade Unions Act notes that in as much as provisions of the Trade Unions Act is unambiguous regarding the registration of a trade union, the Act fails to make provisions for instances where an association has been registered under a different statute and/or agency by a certain class of persons (i.e. the registration of an incorporated trustee pursuant to The Companies and Allied Matters Act 2004) and then subsequently some other class of persons who are not of the same association now proceed to register a similar association with the same name and for a similar purpose under a different statute, as is the case in the instant case. Rather all the Act makes provisions for is the cancellation of the registration of a trade union (i.e., where same was obtained by fraud or a result of mistake).

claimants point out that the registration of 1^st Claimant was on 3^rd February 2011, whereas the 4^th Defendant was registered on 26^th January 2016 confirming that 1^st Claimant was registered about 5 (five) years before the subsequent registration of the 4^th Defendant with a name and for the same object/purpose as that of the 1^st Claimant. They contend that the problem of conflict of registration of the 1^st Claimant and the 4^th Defendant, albeit under different statutes could be attributed partly to a lacunae on the part of the draftsman of the Trade Union Act for failure to make provisions in that statute empowering the Registrar of Trade Unions to conduct search at registry of other agencies, (i.e. the Corporate Affairs Commission) for the purpose of ascertaining the identity of any entity with a name and for a purpose similar to an applicant applying for registration pursuant to the Trade Unions Act. This explains the reason why the 3^rd Defendant could have been easily deluded by the 5^th and 6^th Defendants into registering the 4^th Defendant.

Claimants argue that, notwithstanding this lacuna in the Trade Unions Act, it behoves of an applicant to disclose all material details in his application, at the time of applying for registration.

On the issue of fraud, Claimants submit that the knowledge by the 6^th Defendant of the existence of the 1^st Claimant and the consequent act of him in proceeding to obtain a registration of the 4^th Defendant as a trade union with a name and for a purpose identical to that of the 1^st plaintiff constitutes a hoax and as such, this Court is entitled while relying on the provisions of Section 7 (l)(a) of the Trade Unions Act to cancel the registration of the 4^th Defendant, for same was obtained by fraud.

Case of the 4^th – 6th Defendants:

4^th – 6^th Defendants contend that the 4^th Defendant was not registered with the intention to clandestinely operate as 1^st Claimant’s association. That the prescribed procedure for the registration of Trade Unions was observed before the 4^th Defendant was registered and issued a Certificate of Registration duly signed by the Registrar of Trade Unions and dated 26^th January, 2016. They contend that though the 6^th Defendant was formerly a member and officer of the 1^st Claimant, the 6^th Defendant renounced his membership of the 1^st Claimant and exited the 1^st Claimant before forming, along with other tricycle owners and operators, the 4^th Defendant. They contend that the 1^st Claimant, not being a registered trade union, is not entitled to collect any dues or levies from members of the 4^th Defendant and the 4^th Defendant has only been collecting dues, levies or proceeds from sale of tickets from tricycle owners and operators who willingly and/or voluntarily joined the 4^th Defendant, without any form of coercion or force. They state that the application to register the 4^th Defendant as a trade union was undertaken when members of the 4^th Defendant learnt that a body registered under Part C of the Companies and Allied Matters Act (CAMA) cannot engage in profit making and profit sharing activities and cannot operate as a trade union.

4^th – 6^th Defendants argue that the registration of the 4^th Defendant was not obtained by fraud and the 4^th Defendant is not a faction of the 1^st Claimant and that in the process of registering the 4^th Defendant, the they made available to the 3^rd Defendant all required information necessary and adequate for the registration of a trade union before the 3^rd Defendant registered the 4^th Defendant. They note that there is a difference between the name of the 1^st Claimant (an incorporated Trustee, a non-trade union body) and the name of the 4^th Defendant, which is a registered trade union; while the 1^st Claimant has “& Operators” in its name, the 4^th Defendant does not have “& Operators” in its name.

Submissions in favour of the 4^th – 6^th Defendants:

In their Written Address, 4^th – 6^th Defendants raised the following three issues for determination:

Whether the 1^st Claimant, an association registered under Part C of the Companies and Allied Matters Act, and the 2^nd – 4^th Claimants who are officers of the 1^st Claimant have the requisite locus standi to institute this suit.
Whether, by the provisions of Section 254C(1)(L)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 3 Rule 5(1) of the National Industrial Court Rules, 2017, this Honourable Court has original jurisdiction to entertain the Suit of the Claimants.
Whether, by virtue of its Certificate of Registration issued under the Trade Unions Act, the 4^th Defendant is the proper and lawful union entitled to organize tricycle owners and operators, as a trade union, as opposed to the 1^st Claimant registered under Part C of the Companies and Allied Matters Act (CAMA).

Issue 1:

4^th – 6^th Defendants submit that the 1^st Claimant, an association registered under Part C of the Companies and Allied Matters Act, and the 2^nd – 4^th Claimants who are officers of the 1^st Claimant lack the requisite locus standi to institute this suit on the ground that Claimants are not ‘person’ as contemplated by section 6(6)(b), Constitution of the Federal Republic of Nigeria, 1999, as amended.

They also referred to the case of Uwazuruonye v. Gov. Imo State (2013) 8 NWLR (Pt. 1355) 28 at 52, Para. D; 54, Para. D; 57, Paras F – G (ratio 1), where the Supreme Court held that locus standi means title to sue, or the legal capacity of a party to institute an action in a court of law. It is only if a plaintiff has locus standi that he can file and maintain an action relating to his rights and obligations. (See also Bakare v. Ajose-Adeogun (2014) 6 NWLR (Pt. 1403) 320)(See also the Court of Appeal decision in Fawehinmi v. President, Federal Republic of Nigeria (2007) 14 NWLR (Pt. 1054) 275 at 330 and 331).

They submit that the Federal High Court (Abuja Judicial Division) in National Union of Road Transport Workers (NURTW) v. Registered Trustees of Self Employed Commercial Drivers Association, Abuja & Corporate Affairs Commission (Suit No. FHC/ABJ/CS/211/2009, Judgment of which was delivered on 28^th March, 2013) has held that Incorporated Trustees registered under Part C of CAMA cannot lawfully carry on commercial activities or engage as a trade union anywhere in Nigeria. They argue that the legal consequence of the holding of the Court in National Union of Road Transport Workers (NURTW) v. Registered Trustees of Self Employed Commercial Drivers Association, Abuja & Corporate Affairs Commission (supra) is that the Claimants (in the instant case), lack any legally enforceable right against the 4^th – 6^th Defendants, as far as registration of the 4^th Defendant is concerned. They argue that this lack of a legally enforceable right deprive the Claimants of the requisite locus standi to institute this suit.

They referred to the case of Registered Trustees of Motorcycle Transport Union of Nigeria v COP Bayelsa (Suit No. NIC/EN/36/2011, judgment of which was delivered on 11^th May, 2012) where this Court held that it lacks the jurisdiction to entertain cases from parties or persons incorporated under Part C of the Companies and Allied Matters Act for the purpose of section 254( c )(1)( d).

They also referred to the Ruling of this Court in The Registered Trustees of Three Wheeler Beneficiaries Operators Association, Lagos State v. Road Transport Employers Association of Nigeria (Suit No. NICN/LA/407/20 13, the judgment of which was delivered on 10/5/17), where this Court held that bodies registered under Part C of the Companies and Allied Matters Act (CAMA), not being registered trade unions under the Trade Unions Act, lack the locus standi to sue at the National Industrial Court seeking the type of reliefs sought by the Claimants in the instant case.

Issue 2:

4^th – 6^th Defendants submit that by the provisions of Section 254C(I)(L)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 3 Rule 5(1) of the National Industrial Court Rules, 2017, this Court lacks original jurisdiction to entertain the Suit of the Claimants. That by Order 3 Rule 5(1) of the National Industrial Court Rules, 2017, the jurisdiction of this Court on decisions of administrative bodies such as the decision of the Registrar of Trade Unions is appellate not original. Section 254C(1)(L)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), vests appellate jurisdiction on this Court on appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith.

They refer to the Ruling of this Court in Premier Lotto Limited v. National Union of Lottery Agents and Employees and Registrar of Trade Unions (Suit No. NICNILAl218/2016), the Ruling of which was delivered on 9^th November 2016, where this Court applied the provisions of Section 254C(1 )(L)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), by holding that:

Even at this, the cancellation must be based on the request being directed to the Registrar of Trade Unions first. If the 1^st defendant should not have been registered as relief (a) suggests, the natural consequence is cancellation of the registration; and this is a function of the Registrar of Trade Unions. It is the outcome of the decision of the Registrar of Trade Unions that can be appealed against to this Court. In filing this action, however, the claimant asked this Court to nullify the registration of the 1^st defendant and rectify the register of trade unions. By choosing the words, “nullifying” and “rectify”, the claimant cleverly thinks it can side-track having to first complain to the Registrar of Trade Unions and come straight to this Court. This stratagem must not be allowed; as to do so would defeat the very essence of the TUA in making elaborate provisions regarding the grounds upon which the registration of a trade union can be cancelled.” (Page 5, Paragraph 12 of the Ruling).

4^th – 6^th Defendants note that the Originating Summons of the Claimants, in the 9^th and 10^th reliefs sought, respectively seeks “An order directing the 3^rd Defendant to immediately cancel the registration of the 4^th Defendant for being in contravention of Section 7(1)(a) of the Trade Unions Act” and “An Order directing the 3^rd Defendant to immediately strike out the name of the 4^th Defendant from the Register of Trade Unions.” They contend that there is no affidavit evidence to the effect that the Claimants had complained to the 3^rd Defendant (Registrar of Trade Unions) before invoking the adjudicatory powers of this Court.

They also argue that the 8^th Relief is not the function of the 7^th and 8^th Defendants as this Court had held in The Registered Trustees of Three Wheeler Beneficiaries Operators Association, Lagos State v. Road Transport Employers Association of Nigeria (Supra) that only the Registrar of Trade Unions (under the directives of the Minister of Labour of the Ministry of Labour and Employment) has the power to register, recognize or not to accord recognition to trade unions that may organize in specific areas of the economy, not any other public officer of any State or even of the Federal Government, no matter how highly placed. See also Premier Lotto Limited v. National Union of Lottery Agents and Employees and Registrar of Trade Unions (Suit No. NICNILA/218/2016 (supra.

Issue 3:

4^th – 6^th Defendants submit that by virtue of its Certificate of Registration issued under Part C of the Companies and Allied Matters Act (CAMA), the 1^st Claimant is not entitled to organize tricycle owners and operators as a trade union; rather, it is the 4^th Defendant that is lawfully empowered, by virtue of its Certificate of Registration, signed by the 3^rd Defendant to organize tricycle owners, as a trade union.

They further submit that 1^st Claimant, being a body registered under Part C of the CAMA, is not a trade union, and cannot operate as a trade union and cannot engage in commercial activities as do the members of the 1^st Claimant currently. They argue that by section 603 of CAMA, it is illegal for associations registered as Incorporated Trustees under Part C of the Companies and Allied Matters Act to engage in profit-making activities, as members of the 1^st Claimant do. .

The 4^th – 6^th Defendants also submit that the right that the 1^st Claimant lacks on its own cannot be derived from being an affiliate of the NURTW since, as held in Mcfoy v. UAC (1962) AC 152 at 160, one cannot put something upon nothing and expect it to stand; it will collapse and crash. They argue that this is because, first, the NURTW is not recognized under the Trade Unions Act as an umbrella or central labour organization to which other registered unions or unrecognized bodies may affiliate. Two, the NURTW is purely a union of road transport workers, exclusively, and the law does not permit the presence of employers in NURTW, road transport employers being organized under the Road Transport Employers Association (RTEA). It is therefore an anomaly, and unlawful at the same time, for the 1^st Claimant which comprises “Owners” and “Operators” being affiliated to an industrial union comprising exclusively of workers, which also lacks the power to operate as a central labour organization. Third, the Third Schedule, Part B to the Trade Unions Act excludes from the membership of the NURTW, persons engaged in “transportation undertaken by self-employed persons”, a category to which the concepts of “owners” and “operators” in the name of the 1^st Claimant belong.

Submissions of 7^TH – 8^TH Defendants:

7^th – 8^th Defendants in opposition to the Originating Summons filed a counter-affidavit and a written address. In their Counter-affidavit, the averred that they were not aware of the pendency of this suit in Court when the 4^th – 6^th Defendants applied for recognition and approval as the body/entity responsible for administering/managing tricycle activities in Lagos State. That the 8^th Defendant gave effect and recognition to the 4^th Defendant as a Trade Union having been duly registered by the Registrar of Trade Unions before granting a provisional approval/recognition to the 4^th Defendant to commence the administration/management of tricycle activities in Lagos State vide letters dated 13^th day of January, 2017 with Reference umbers MOT/AG. 301/VOL. 111/140 and MOT/AG. 301/VOL. 111/548. They further state that the 8^th Defendant have not taken any step which is at variance with the interest of Justice and that the Claimants did not at any time whatsoever appeal/prevail on the 8^th Defendant to suspend/postpone all further processes of granting the 4^th Defendants application to commence the administration/management of tricycle activities in Lagos State pending the complete determination of the instant suit.

7^th – 8^th Defendants formulated one issue for determination to wit: “Whether the 8^th Defendant acted lawfully by granting the provisional approval/ recognition to the 4^th Defendant”.

They contend that what the Claimant is seeking for are acts that have been completed and there is nothing to restrain any longer and that the 8^th Defendant complied with the requisite procedure before granting the provisional approval/recognition to the 4^th Defendant not been aware of the pendency of the suit in Court, and that the claimant having failed to notify the Office of the 8^th Defendant of the matter in Court cannot seek to restrain an act that has been completed.

Claimants’ Reply:

On the issue of locus standi, Claimants’ contend that the basis upon which the 4^th– 6^th Defendants have relied upon in challenging the competence to initiate the instant suit relates solely to the 1^st Claimant only; and that the 4^th – 6^th Defendants, failed to avert their mind to the identities of the 2^nd – 4^th Claimants, who are also juristic persons, capable of suing and being sued. They contend that a person has locus standi to sue in an action if he is able to show to the satisfaction of the court that his civil rights and obligations have been or are in danger of being infringed …” To have locus standi, the Plaintiffs statement of claim must disclose sufficient legal interest and show how such interest arose in the subject matter of the action – Pacers Multiplex Dynamics Ltd v. M.V Dancing Sister (2015) I SC (Pt.1) 75 and submit that the claimants amended originating summons spells out the scope/civil rights of the claimant, and the infringement of the 1^st Claimants rights by the registration of the 4^th Defendant.

Claimants also contend that the Registered Trustees of Motorcycle Transport Union of Nigeria v. COP, Bayelsa State and National Union of Road Transport Workers (NURTW) v. Registered Trustees of Self Employed Commercial Drivers Association, Abuja & Corporate Affairs Commission are distinguishable from this case in that:

The Claimants in that case were a registered incorporated trusteeship pursuant to Part C of the Companies and Allied Matters Act, 2004 and sought to invoke the provisions of Section 254 C (I) (d) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 which vests the National Industrial Court with exclusive jurisdiction in matters bothering on the interpretation and applicability of the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria, particularly as it relates to trade unionism, employers association or any other matter which the Court has jurisdiction to hear and determine.
It was against the backdrop of that provisions that the claimants initiated that action seeking to enforce their fundamental human rights on the basis that the Defendants were compelling the said Claimants to abandon their association and join the Balyelsa State Motorcycle Association being run by the Defendants.

iii. The Court in taking cognizance of the unequivocal provisions of the Trade Union Act as well as Section254 C (I) (d) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 could not situate the Claims of the Claimants within the provisions of section 254 C (I) (d) since the Claimants complaint did not relate to any employer, labour and industrial relations, trade unionism, employers association or any other matter for the purpose of the invocation of Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).

They argue that same does not constitute an authority upon which to hold that the Claimants in the instant action lack the locus standi to maintain the instant action.

Notice of Preliminary Objection:

The defendants on the 26^th of September 2017 filed a Notice of Preliminary Objection on behalf of the 4^th to 6^th Defendants pursuant to Order 17 Rule 1(6), (9), Section 254C(I)(L) (i), Proviso to Section 254C(3) CFRN 1999, section 36(2) (A) & (B) CFRN and under the inherent jurisdiction of this Court challenging the competence of the Claimants’ suit and the jurisdiction of this Court to hear the Claimants on the grounds that:

The Claimants’ Amended Originating Summons dated and filed on 1^st June 2017 is incompetent on the ground that the claimants lack the locus standi to institute a Suit claiming the reliefs sought.
The 1^st Claimant is an association registered under Part C of the Companies and Allied Matters Act (CAMA).
The 2^nd – 4^th Claimants are officers of the 1^st Claimant registered under Part C of the Companies and Allied Matters Act (CAMA).
The Claimants’ Suit is an abuse of court process.

Out of the four grounds set out by the Defendants/Applicants in the NPO, the first three are also the issues raised in their arguments in opposition to the Originating Summons. There is therefore no need to reproduce them again. The third issue set out for determination is:

If this Honourable Court is persuaded to find and hold that it lacks jurisdiction over a body and officers of a body registered under CAMA and/or that the suit is premature, whether the Claimants’ Suit is not an abuse of court process.

Issue No. 4 in respect of the NPO:

4^th – 6^th Defendants contend that if this Court is persuaded to find and hold that it lacks jurisdiction over a body and officers of a body registered under CAMA and/or that the suit is premature, then the suit is an abuse of court process. They contend that the employment of the judicial process would be regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice – Saraki v. Kotoye (1992) 11-12 SCNJ 26) and urge the Court to hold that the suit of the Claimants’/Respondents’ is an abuse of court process and dismiss it – Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142, paragraph B).

Response in Opposition to the NPO:

In response to the NPO, Claimant filed a counter-affidavit and a written address, wherein they addressed the issues raised by 4-6^th Defendants in their NPO. Claimants adopted the issues distilled by the 4^th – 6^th Defendants in the NPO. The Response is in the same terms as the Reply to 4^th – 6^th Defendants arguments in opposition to the Originating Summons already considered as Issues 1 and 2. Claimants did not however respond to the 3^rd issue raised by the 4^th – 6^th Defendants on abuse of Court Process

COURT DECISION

By consent of the parties, it was agreed that Ruling on the Preliminary Objection and Judgment on the Originating Summons be taken together pursuant to Order 18 Rule 3 of the Rules of this Court. In pursuance of this, and having gone through the processes filed in both the Originating Summons and the Notice of Preliminary Objection; and having also listened to arguments of Counsels on both processes, I identify the following issues for determination:

Whether the 1^st Claimant and the 2^nd – 4^th Claimants have the requisite locus standi to institute this suit.
Whether this Court has original jurisdiction to entertain this Suit.
Whether the registration of 4^th Defendant is defective by reason of the existence of 1^st Claimant.
Which body, between 1^st Claimant and 4^th Defendant is entitled to Organise Tricycle Owners and Operators as a trade union.

Issue 1:

When a suit is filed in Court, it is usually the plaintiff who is questioned as to whether he is a proper person, that is to say a plaintiff and indeed a party in a suit must be a natural or legal person – See Nigerian Nurses Association & Anor v. A.G. Federation (1981) 12 NSCC p.441 Per RHODESVIVOUR, J.S.C. (P. 12, Paras. C-D). In Dairo & Ors v. Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR-42573(SC). The Supreme case in this case also noted that

The law is trite that the plaintiff who takes out an action must be competent to institute such an action. Whenever his competency to institute the action is challenged the onus is on him to prove that he has legal capacity to institute the action. The competency to institute an action also determines the competency of the action itself. See Olorunkemi Ajao v. Sonola & Anor. (1973) 5 SC 119. Thus, in Amodu Rufai Shitta & Ors. v. Momodu Ugali & Ors. (1941) 16 NLR 23,

Claimants have shown by their exhibit TO1 that 1^st Claimant is registered under Part C of the CAMA. Registration under that law grants certain rights and privileges. The question is whether the status is such that grants it locus to bring this suit. This question is important because, as noted in the case of Dairo & Ors v. Registered Trustees of the Anglican Diocese of Lagos (Supra), “For a Court to be competent and have jurisdiction over a matter, it is necessary that the condition that the proper and competent parties must be identified must be fulfilled”.

In this case, the 1^st Claimant, from whom the rights of the 2^nd – 4^th Claimants emanate is an association registered under part C of CAMA. This Court has held severally that Associations registered under Part C of CAMA, though they have capacity to sue and be sued, they do not have capacity to sue before the National Industrial Court. By the provision of entire section 254C of the 1999 Constitution of the Federal Republic of Nigeria, the provision envisages that parties before the Court must be persons deriving rights as listed and as constituting the jurisdiction of this Court. Claimants derive their status under the Company and Allied Matters Act which this Court has not been vested with jurisdiction to implement; unless as persons created by that Act but deriving rights and obligations as may have been determined by the Constitution (particularly section 245C or any Act of the National Assembly.

I do not agree with Claimants’ contention that the cases of National Union of Road Transport Workers (NURTW) v. Registered Trustees of Self Employed Commercial Drivers Association, Abuja & Corporate Affairs Commission (Suit No. FHC/ABJ/CS/211/2009, Registered Trustees of Motorcycle Transport Union of Nigeria v COP Bayelsa (Suit No. NIC/EN/36/2011, and The Registered Trustees of Three Wheeler Beneficiaries Operators Association, Lagos State v. Road Transport Employers Association of Nigeria (Suit No. NICN/LA/407/2013 do not apply to this suit. One fact is common to this case and the cases referred to, and that is, they are all suits by associations registered under Part C of the CAMA seeking to enforce rights of the association before this Court. The decision that owing to their status as associations registered under part C of CAMA they cannot have audience before this Court, applies fully here.

In the case of National Commercial Tricycle and Motorcycle Owners and Riders Association, Edo State Chapter & 2 Others v. Road Transport Employers Association of Nigeria, Edo State Chapter & 1 other Suit No: NICN/BEN/16/2015, judgment of which was delivered on 2017-06-01 per Oyewumi J, this Court further held that an association registered under Part C is not a trade union and therefore any dispute between it and a trade union cannot be a trade dispute. In furtherance of this point, I refer to the case of Incorporated Trustees of Civil Society Action Coalition of Education for All(CSACEFA) v. Government of Abia State & Anor Suit No: NIC/EN/49/2011 judgment of which was delivered on 2012-11-20 by Hon. Justice Auwal Ibrahim where he held that:

The first question though is whether the Applicant has the capacity to institute this action. It is clear from its affidavit in support of its motion that it is not a trade union representing the members of the applicant organization. It is an Incorporated Trustees registered by the Corporate Affairs Commission pursuant to the Companies and Allied Matters Act. See Exhibit A annexed to the affidavit in support of the application. The capacity to bring an action before a court of law is crucial if the court is to assume jurisdiction and determine such a matter. See the case of Umar v. W.G.C. (2007) 7 NWLR (pt. 1032) p. 117 at 151 where the Court of Appeal held that locus standi touches on the question of jurisdiction of court, in that, if a plaintiff or an appellant does not have locus or the required standing to institute an action, the court cannot properly assume jurisdiction to entertain the matter…

Further, in the case of The Registered Trustees of the Forum of Federal Health Institutions, Nurses and Midwives (FFHINNAM) v. National Association of Nigeria Nurses and Midwives Suit No: NIC/ABJ/20/2011 Ruling of which was delivered on 2012-06-05, Hon. Justice B.A. ADEJUMO, OFR President of this Court had cause to strike out the suit on the grounds that the Claimant though not registered as a trade union was set up to perform the functions of a trade union.

The contention of Claimants that 1^st Claimant is affiliated to the National Union of Road Transport Workers (NURTW) is of no moment, as the NURTW is not the Claimant in this case. There is no need considering the appropriateness of their affiliation and if any rights derives from that affiliation because, as held by Hon. Justice BB Kanyip in The Registered Trustees of Three Wheeler Beneficiaries Operators Association, Lagos State v. Road Transport Employers Association of Nigeria (Suit No. NICN/LA/407/2013 judgement of which was delivered on 10^th May 2017, on this point:

The applicant went on that it is affiliated to the National Union of Road Transport Workers (NURTW) as directed by Lagos State Government (the emphasis is the Court’s). Issues of trade unionism come under item 34 of the Exclusive Legislative List of the 1999 Constitution; and under the Trade Unions Act (TUA) Cap. T15 LFN 2004, it is the Registrar of Trade Unions that has the power to register a trade union, and by extension to direct or recognize the affiliation of a body to a trade union subject of course to the overriding review powers of this Court.

The legal status of the 1^st Claimant as an association registered under part C of CAMA is not in doubt. That status robs it of locus before this Court. I therefore find that the 1^st Claimant and all the other Claimants deriving their positions through it, lack the competence to bring this suit; and I so hold.

Issue 2:

The second issue is whether this Court has original jurisdiction to entertain this Suit. This suit clearly challenges the action of the Registrar of Trade Unions in registering 4^th Defendant and seeks for the cancellation of the registration. 4^th – 6^th Defendants contends that this suit should have come by appeal pursuant to Section 254C(1)(L)(i) after an application may have been made to the Registrar of Trade Unions for the cancellation of the registration of 1^st Claimant upon the facts relied on in this suit. This issue was raised by 4^th – 6^th Defendants in their counter-claim in opposition to the Originating Summons and as a ground for their Notice of Preliminary Objection. In their Reply to 4^th – 6^th Defendants Counter-affidavit and Notice of Preliminary Objection, Claimants did not address this issue. It is therefore taken as admitted that they did not challenge the registration of 4^th Defendant before the Registrar of Trade Unions.

Section 7 of the Trade Unions Act provides for circumstances when the Registrar can cancel the registration of a trade union as:

(1) Subject to the provisions of this section and of section 10(2) of this Act, the Registrar shall cancel the registration of a trade union if it is proved to his satisfaction-
(a) that the registration of the union was obtained by fraud or as the result of a mistake; or

(2) Where the Registrar proposes to cancel the registration of a trade union under subsection (1) of this section, he shall send to the trade union at its registered office a notice in the prescribed form-
(a) stating that he proposes to cancel the registration of the union, and specifying briefly the ground or grounds on which he proposes to do so;

This section clearly empowers the Registrar of Trade Union to entertain application for the cancellation of the registration of trade unions. Section 8 of the Trade Unions Act provides that on appeal, the appropriate court may make such order as it thinks proper, and the court shall exercise all the powers vested in the Registrar of Trade Union. It is at the point of appeal, that this Court by virtue of section 254C(1)(L)(i) and Order 3 Rule 5(1) comes in.

There is no evidence that any step was taken by Claimants to challenge the registration of 4^th Defendant before the Registrar of Trade Unions before commencing this suit. This suit is therefore premature and the Court therefore lacks jurisdiction to entertain this suit.

The combined effect of my finding in issues 1 and 2 dissipates the need to make further findings on the remaining issues. This is in line with judicial authorities that:

Where the issue of jurisdiction is raised in a matter, once the court determines jurisdiction in the suit, it need not proceed further to consider any other issue since there is no longer the jurisdiction for doing so… (Umannah v. Obong Victor Attah) (2006) 17 NWLR (Pt. 1009) 503 at 525 paras D-F per Tobi JSC)

This has recently been restated by the Supreme Court in Skye Bank PLC v. Victor Anaemem Iwu (2017) LPELR-42595(SC) where it held that, per Peter-Odili JSC:

The situation on ground throws up the matter of jurisdiction of Court and it is trite that jurisdiction is the bedrock of any adjudication to the extent that it affects the very foundation of every cause of action before a Court of law. The reason is simple since without jurisdiction, the decision of a Court or tribunal without the requisite jurisdiction is a nullity, dead on arrival and of no effect whatsoever. The principle applies to Courts whether of trial or appellate. The description is very aptly made in the case of Utih v. Onoyivwe (1991) 1 SC (Pt. 1) 65 at 96-97 per Bello CJN thus”…jurisdiction is blood that gives life to the survival of an action in Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” See also the decision of the Supreme Court of Nigeria in the old case of Madukolu v. Nkemdilim(1962) 2 SC NLR 341.

I therefore hold that this Court does not have jurisdiction to hear this suit. In the circumstances of the findings made in this suit, this suit is liable to be dismissed, and is hereby dismissed..

I make no order as to cost.

Judgment is entered accordingly.

……………………………………

Hon. Justice Elizabeth A. OJI, PhD