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National Industrial Court

Comrade Okon B. Akpan & ORS -VS- Obong E. D. Ekpo(State Chairman

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 13TH JUNE, 2018                                       SUIT NO: NICN/UY/31/2018

 

BETWEEN:

  1. Comrade Okon B. Akpan (Pension No. UTC 9903)

Member, Nigeria Union of Pensioners,

Uyo Branch, Akwa Ibom State.

  1. Comrade Godwin Enneh (Pension Mo. UY 412)

Member, Nigeria Union of Pensioners,

Uyo Branch Akwa Ibom State.

(Suing for themselves and on Behalf of Aggrieved

Pensioners in Akwa lbom State)

 

AND

 

  1. Obong E. D. Ekpo,

State Chairman, Nigeria Union of Pensioners,

Akwa Ibom State Council.

  1. Obong Cosmas M. Essien,

State Secretary, Nigeria Union of Pensioners,

Akwa Ibom State Council.

(For themselves and as Representing Nigeria Union of Pensioners/ Akwa lbom State Council).

  1. Dr. Abel Afoloyan,

National President, Nigeria Union of Pensioners,

National Executive Council, National Headquarters,

Abuja.

  1. Elder Actor ZAL ,

General Secretary, Nigeria Union of Pensioners,

National Executive Council, National Headquarters,

Abuja.

  1. Comrade Bunmi Ogunkolade,

Principal Staff, Nigeria Union of Pensioners,

National Executive Council, National Headquarters,

Abuja.

(Representing Nigeria Union of Pensioners,

National Executive Council, National Headquarters,

Abuja).

REPRESENTATION:

 

EKANEM ITIOKIAT FOR THE APPLICANTS.

EKPA B. EKPA FOR THE RESPONDENTS.

JUDGMENT

The Applicants are members of the Uyo Local Branch of the Nigeria Union of Pensioners, Akwa Ibom State. The 1stand 2nd Defendants are officers of the Akwa Ibom State Council of the Union while the 3rd to 5th are National Officers of the Union. On 12th September, 2018, the Applicants filed originating summons for themselves and on behalf of “aggrieved pensioners in Akwa Ibom State” against the Respondents praying for the determination of the following questions:

  1. Whetherhaving regard to the provisions of the Third Schedule Section 5 (7), 17, 34, 1996 No. 26; part A of the Trade Unions Act CAP. T. 14; T.15 Trade Unions (International Affiliation) Act, CAP T.15 of the Laws of the Federation of Nigeria, 2004 – Cap T. 14 and T. 15, Nigeria Union of Pensioners, is a Trade Union, registered by the Registrar of Trade Unions under the Trade Unions Act, Laws of the Federation of Nigeria 2004?

  1. Whether having regard to the clear provisions of Section 29 (1) (3), 47, 47 (c) 47 (e) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, and of Rules 1 (iii), 5 (iv) of the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners, it shall be the statutory duty of the Registrar of Trade Unions to cause notice of any alteration of the rules of a Trade Union and any change in the situation of the registered address to be published by the Registrar of Trade Unions in the Federal Gazette as condition precedent, before such alteration and change shall take effect and be valid?

  1. Whether the 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners has been registered and is approved by the Registrar of Trade Unions, and if so, whether such registration and approval has been duly registered and duly published in the Federal Gazette by the Registrar of Trade Unions, as envisaged under Rule 1 (iii), Rule 5 (iv) of the 2008 Constitution and Code of conduct of Nigeria Union of Pensioners, and pursuant to Sections 29 (1), 29 (3), 47, 47(c) and 47(e) of the Trade Unions Act, Laws of the Federation of Nigeria 2004?

  1. Whether by the provisions of Section 29 (1), (3), 47, 47 (c) and 47 (e) of the Trade Unions Act, Laws of the Federation of Nigeria 2004; and of Rules 1 (iii) and 5 (iv) of the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners, the 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners, having not been duly registered and not duly approved by the Registrar of Trade Unions, is invalid, and if so, whether all acts, directives, and meetings conducted by virtue of the provisions of same, is illegal, invalid, unconstitutional, null and void and of no consequences whatsoever?

  1. Whether by the provision of Section 48 (1) (a) (b), 48 (3) and 48 (4) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, any person who supplies or lends to any member of a Trade Union, a copy of any rules or any alteration of any rules other than those actually in force at the time, on the false pretence that the material supplied or lent represents the rules of the Trade Union as the rules in force, he shall be guilty of an offence and shall be liable on summary conviction to a fine of two hundred naira or to imprisonment for a term of Six months?

  1. Whether by the provision of Section 48 (1) (a) (b), 48 (3) and 48 (4) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, the 2017 Constitution and Code of Conduct of Nigeria Union Pensioners, lent and supplied to members of Nigeria Union of Pensioners, is with intent to defraud and mislead members of Nigeria Union of Pensioners, and if so, whether the Defendants/Respondents have defrauded and misled the members of Nigeria Union of Pensioners and are guilty of an offence.

  1. Whether by the provision of Section 13 (1) (2) (3) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, a person convicted of certain offences is disqualified from holding office as an official of a Trade Union, and if so, whether a person who supplied or lent to members of Nigeria Union of Pensioners, a copy of any rules other than those actually in force at the time,on the false pretence that the material supplied or lent represents the rules of the Union, shall be disqualified from holding office as an official of a Trade Union?

  1. Whether by the provision of Section 13 (1) and 13 (3) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, the Defendants/Respondents, with intent to mislead and defraud members of Nigeria Union of Pensioners, who lent and supplied copies of unregistered and unapproved 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners, on the false pretence that the material supplied or lent represents the rules of Nigeria Union of Pensioners, shall be disqualified from holding offices as officials of Nigeria Union of Pensioners?

  1. Whether under the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners, State Administrative Committee (SAC) of Nigeria Union of Pensioners, is a body or organ of the Nigeria Union of Pensioners and as such has powers to expel a member or members of Nigeria Union of Pensioners?

The Respondents also sought for the following declarations:

 

  1. A declaration that by the provisions of the Third Schedule Section 5 (7), 17, 34, 1996 No. 26 part A of the Trade Unions Act, Laws of the Federation of Nigeria 2004 Chapter T14 and T15 Trade Unions Act CAP. T14, Trade Unions (International Affiliation) Act CAP T 15, Nigeria Union of Pensioners is a Trade Union, registered as Number 24 by the Registrar of Trade Union under the Trade Unions Act Laws of the Federation of Nigeria 2004.

  1. A declaration that by the provisions of Section 4 (1) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, every Trade Union, Nigeria Union of Pensioners inclusive, shall have rules of the Trade Union, registered by the Registrar of Trade Unions in accordance with the provisions of the law, and the rules of Nigeria Union of Pensioners is its Constitution and Code of Conduct.

  1. A declaration that subject to the provisions of Section 29 (1) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, a Trade Union, Nigeria Union of Pensioners inclusive, may alter its rules, but no alteration of the rules shall take effect until the alteration is duly registered by the Registrar of Trade Unions in accordance with the Trade Unions Act, Laws of the Federation of Nigeria 2004.

  1. A declaration that subject to the provision of rule 5 (iv) of the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners, alterations and amendments to the said 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners by whatever process shall not be valid until the alterations and amendments have been duly registered by the Registrar of Trade Unions in accordance with the Trade Unions Act, Laws of the Federation of Nigeria 2004.

  1. A declaration that by virtue of Section 47, 47 (c) and 47 (e) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, it shall be the statutory duty of the Registrar of Trade Unions to mandatorily cause notice of the registration of any alteration and amendment of the rules of a Trade Union, Nigeria Union of Pensioners inclusive, and to cause notice of any change in the situation of the registered office of a Trade Union, the Nigeria Union of Pensioners inclusive, to be duly registered and published in the Federal Gazette, of the Federal Republic of Nigeria as condition precedent for validity of such alterations and amendments.

  1. A declaration that by the community provisions of Section 47, 47 (c) and 47 (e) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, and of Rule 5 (iv) of the 2008 Constitution and Code of Conduct of the Nigeria Union of Pensioners, the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners has not been duly altered and not duly amended.

  1. A declaration that by the provisions of Section 48 (1) (a) (b), 48 (3) and 48 (4) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, any person with intent to mislead and defraud, supplies or lends to any member of Trade Union, Nigeria Union of Pensioners inclusive, a copy of any rules or any alteration or amendments of any rules other than those actually in force at the time, on the false pretence that the material supplied or lent represents the rules of the Trade Union, Nigeria Union of Pensioners inclusive, as the rule in force, shall be guilty of an offence and shall be liable on summary conviction to a fine of two hundred naira or to imprisonment for a term of six months.

  1. A declaration that by the provision of Section 48 (1) (a) (b), 48 (3) and 48 (4) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, the National President of Nigeria Union of Pensioners – Dr. Abel Afolayan; the General Secretary of Nigeria Union of Pensioners – Elder Actor Zal; the Akwa Ibom State Chairman of Nigeria Union of Pensioners, Obong E. D. Ekpo; and the Akwa Ibom State Secretary of Nigeria Union of Pensioners, Obong Cosmos M. Essien, having lent or supplied members of Nigeria Union of Pensioners copies of the 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners, same having not duly altered and duly amended, the 2008 Constitution and Code of Conduct of Nigeria Union Pensioners, and same having not been duly registered and published by the Registrar of Trade Unions, as envisaged under the provisions of the Trade Unions Act, Laws of Federation of Nigeria 2004, have defrauded and have misled members of Nigeria Union of Pensioners on the false pretence that the 2017 Constitution and Code of Conduct is, as then in force in the Nigeria Union of Pensioners, are guilty of an offence and are liable on summary conviction to a fine or imprisonment.

  1. A declaration that by a community provisions of Rule 5 (iv) of the 2008 Constitution and Code of Conduct of Nigeria Union Pensioners, and of Section 29 (1) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, the  2017 Constitution and Code of Conduct of Nigeria Union of Pensioners having not been duly registered and duly approved by the Registrar of Trade Unions in strict accord with the law, is invalid, and all acts, directives resolutions, decisions, approvals, meetings conducted with the said 2017 Constitution and Code of Conduct, is illegal, unconstitutional, null and void and of no effect whatsoever, to the extent of its non-existence and on the ground of inconsistency with and its violation of the Trade Union Act, Laws of the Federation of Nigeria 2004.

  1. A declaration that by a community provision of Rule 5 (iv) of the 2008 Constitution and Code of Conduct of Nigeria Union Pensioners, and Section 29 (1) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, the 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners is not in existence in the Nigeria Union of Pensioners as it is not known to the Trade Unions Act, Laws of the Federation of Nigeria 2004, and all organs of the Nigeria Union of Pensioners created by the said 2017 Constitution and Code of Conduct does not therefore exist in the Nigeria Union of Pensioners as same is illegal and invalid.

  1. A declaration that the said 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners is a lie and deceptive; the framers are dishonest in their duties in the Union, as they have misled and have defrauded members of Nigeria Union of Pensioners on the false pretence that it is the Constitution and Code of Conduct of the Union in force, when they know same to be deceitful, and their act is dishonest in their management of affairs as officers of Nigeria Union of Pensioners.

  1. A declaration that by the provision of Section 13 (1), 13 (3) (b) of the Trade Unions Act, Laws of the Federation of Nigeria 2004, a person with intent to mislead or defraud, supplies or lends to any member of a registered body, Nigeria Union of Pensioners inclusive, a copy of any rules other than those actually in force at the time, on the false pretence that the material supplied or lent, shall be disqualified from holding office as an official of a Trade Union, Nigeria Union of Pensioners inclusive.

  1. A declaration that by the provisions of Section 13 (1), 13 (3) (b) of the Trade  Unions Act, Laws of the Federation of Nigeria 2004, the 1stto 5th Defendants/Respondents, with intent to mislead or defraud, supplied or lent to members of Nigeria Union of Pensioners, copies of unregistered and unapproved 2017 Constitution and Code of Conduct of Nigeria Union of  Pensioners on the false pretence that they are the rules of Nigeria Union of Pensioners, shall be disqualified from holding offices as officials of Nigeria Union of Pensioners.

  1. A declaration that the State Administration Committee (SAC) created by the purported 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners has no power or Authority to expel any member of the Nigeria Union of Pensioners, the applicants inclusive.

 

Therefore the Applicants prayed the court for the following Orders:

  1. An order that the 2017 Constitution and Code of Conduct of the Nigeria Union Pensioners has not altered and duly amended the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners in accordance with the law, and is therefore invalid.

  1. An order setting aside all organs of Nigeria Union of Pensioners in Akwa Ibom State set up in accordance with the 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners, same being invalid.

iii.               An order that the 2017 Constitution and Code of Conduct of Nigeria Union of  Pensioners is an intent to mislead and defraud the members of the Nigeria Union of Pensioners in Akwa Ibom State, and is an offence liable on summary conviction to a fine of two hundred naira or to imprisonment for a terms of Six Months.

  1. An order that the National President of the Nigeria Union of Pensioners – Dr. Abel Afolayan; the General Secretary of the Nigeria Union of Pensioners –Elder Actor Zal; the Chairman, Akwa Ibom State Branch of Nigeria Union of Pensioners Mr. E. D. Ekpo and Akwa Ibom State Secretary of Nigeria Union of Pensioners, Obong Cosmos M. Essien, having defrauded and mislead members of the Nigeria Union of Pensioners in Akwa Ibom State on the false pretence that the 2017 Constitution and Code of Conduct Nigeria Union of Pensioners is the rule in force, are guilty of an offence and are liable on conviction to a fine of two hundred naira each or imprisonment for a term of Six months each.

  1. An order directed at the National Administrative Committee (NAC) of the Union to set up an 8-Man caretaker Committee to run the affairs of the Nigeria Union Pensioners in Akwa Ibom State, as all organs of the Nigeria Union of Pensioners set up in compliance with the said the 2017 Union Constitution and of Conduct, are invalid.

  1. An order that all acts, directives and meetings conducted by virtue of the 2017 Constitution and Code of Conduct of the Nigeria Union of Pensioners, are invalid, unconstitutional, null and void and of no effect whatsoever.

vii.             An order that the 1st to 5th Defendants/Respondents are disqualified from holding the following offices: State Chairman, Nigeria Union of Pensioners, Akwa Ibom State; State Secretary, Nigeria Union of Pensioners, Akwa Ibom State; National President, Nigeria Union of Pensioners; the Secretary General, Nigeria Union of Pensioners and the Principal Staff Officer, Nigeria Union of Pensioners.

viii.          An order that all members of Nigeria Union of Pensioners purportedly expelled by the State Administrative Committee (SAC), is null and void, and the members are hereby reinstated as full members of Nigeria Union of Pensioners with its attendant rights and Privileges.

  1. And any other Order or Orders that this Honourable Court may deem fit to make.

In support of the Originating Summons, the Applicants filed a 44 paragraphs affidavit with 12 Exhibits deposed to by the 1st Applicant and an unsigned Counsel’s Address. In his reaction, the Respondents filed a 42 paragraphs counter-affidavit with 10 exhibits deposed to by the 2nd Respondent and a written address settled by Ekpa B. Ekpa. With this processes intact, the parties with leave of court adopted their final written addresses on the 3rd of December, 2018.

 

APPLICANTS’ CASE

The Applicants are members of the Uyo Local Branch of the Nigeria Union of Pensioners, Akwa Ibom State. The 1stand 2nd Defendants are officers of the Akwa Ibom State Council of the Union while the 3rd to 5th are National Officers. According to the Applicants, the 1st to 5th Respondents are the persons who framed, made and supplied the 2017 Constitution and Code of Conduct of the Nigeria Union of Pensioners to members. And since the 2017 Constitution and Code of Conduct of the Nigeria Union of Pensioners were not duly registered, published and Gazetted in accordance with the law, it cannot alter or amend the 2008 Constitution and Code of Conduct. The Applicants contended that the 2008 Constitution and Code of Conduct for Pensioners still remained subsisting, binding and the basis of the contract between the Union and its members and wrote to the State Chairman and State Exco on 23rd May, 2018 and 4th June, 2018 respectively demanding for the withdrawal of the 2017 Constitution in circulation. In order to exhaust internal mechanism for the resolution of this, the Applicant wrote similar letters to the National Administrative Committee and National Executive Committee of the Union on 12th June, 2018 and 6th July, 2018 respectively. It is against this background that the Applicants filed originating summons for themselves and on behalf of “aggrieved pensioners in Akwa Ibom State” against the Respondents alleging among others: That having supplied members of the Nigeria Union of Pensioners, Akwa Ibom branch with copies of the 2017 Constitution and Code of Conduct on the false pretence that it is the authentic one in force, the Respondents are guilty of an offence and liable on summary conviction to a fine of Two Hundred Naira or imprisonment for a term of six months each. That persons so convicted are disqualified from holding office in Nigeria Union of Pensioners. That the 2017 Constitution and Code of Conduct having not been duly registered and published in the Gazette of the Federal Government, it is invalid, illegal, unconstitutional, null, void and of no consequence whatsoever. That the invalid 2017 Constitution and Code of Conduct cannot create organs such as State/Sectoral Administrative Committee (SAC) and the State/Sectoral Executive Committee not to talk of using these purported organs to expel some members from the Union as was done on 18th July, 2017.

 

RESPONDENTS’ CASE

The Respondents refuted that they framed, made and supplied the 2017 Constitution and Code of Conduct of the Nigeria Union of Pensioners and posited that the amendments were duly effected at National Delegates Conference held in Kaduna on 24th June, 2017. The Respondents went ahead to give documentary evidence of the registration of the alterations/amendments by Registrar of Trade Unions. The Respondents therefore denied committing any criminal offence for which they should be either convicted or fined to deny them eligibility to the offices they occupy. The Respondents attacked the suit on so many fronts which will come to the fore in due course.

 

APPLICANTS’ SUBMISSIONS IN SUPPORT OF THE ORIGINATING SUMMONS

 

The Respondents framed, what they tagged Statement of Legal Issues but did not advance any argument in support. The legal issues are as follows:

  1. Whether the Constitution binding the relationship between the Applicants and Respondents is the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners.

  1. Whether there is any organ or body known or called the State Administrative Committee (SAC) in the said 2008 Constitution and Code of Conduct of the Union.

  1. Whether the purported 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners is not a ruse, made to deceive and defraud members of Nigeria Union of Pensioners.

  1. Whether the Respondents have not committed an offence as specified under the Trade Unions Act, Laws of the Federation of Nigeria, 2004.

  1. Whether the purported expulsion of the Applicants by the Respondents is not null, void, and of no consequence what so ever.

  1. The document, 2017 Constitution and Code of Conduct of Nigeria Union of Pensioner is not known to the Union since it has not been registered in compliance with the law.

  1. The purported expulsion of the Applicants is null and void having been made by an organ not known by the 2008 Constitution and Code of Conduct of the Union.

RESPONDENTS’ SUBMISSIONS IN OPPOSITION TO THE ORIGINATING SUMMONS

In opposing this suit, the Respondents formulated five (5) issues for determination, which are as follows:

  1. Whether the applicants who were not plaintiffs in Suit Nos. (HU/92/2011) (EXhibit 3) and HU/285/2012 (Exhibit 12) then aggrieved are the same members of the Nigeria Union of Pensioners expelled from the Union on 24th June, 2017 in Exhibit 10, or have the locus standi or legal capacity to institute this action.

  1. Whether the applicants, in the facts and circumstances of this case have clearly identified the area or nature of their grievances as members of Uyo Local Branch of the Nigeria Union of pensioners in this suit.

iii.               Whether the respondents by their respective nomenclatures/offices described by the applicants can be sued in those capacities instead of suing the Nigeria Union of Pensioners (NUP) at the National Level which amended the 2008 Constitution of the Union.

  1. Whether in the facts and circumstance of this case which raise controversial and disputed facts, this suit is properly instituted in the so-called Originating Summons.

  1. Whether the applicants, in the facts and circumstances of this case have proved fraud, false pretence or any other crime against the respondents for them to be convicted or fined.

The Respondents argued issues i) to iv) together and issue v) separately.

 

The Respondents submitted on issues i) to iv) as follows:

  1. That the applicants’ writ of summons is neither signed by the Registrar of the court nor the Honourable Judge especially when the so called writ without any legal support gives the defendants 8 days within which to enter appearance in the suit.

  1. That the amendment/alteration of the Constitution and Code of conduct of the Nigeria Union of Pensioners which was done by delegates all over the country and the applicants were duly represented at the Delegates Conference of the Union which held in Kaduna on 26thApril, 2017 by delegates from their Uyo Branch of the Union. They were duly represented. See the case of Comrade Cleverc Nnorom vs. Comrade Nwauzor & 4 Ors (2008) 12 NNLR (pt. 32) 236 @ 243 ratio 8 (paragraphs A – B) it became imperative in law for the Nigeria Union of Pensioners to be sued and/or made a defendant and/or a respondent.

iii.       That in view of the serious contentions and substantial disputed facts by the respondents in this case, this action ought to have been properly commenced by Writ of Summons instead of Originating Summons.

The Respondents distinguished the Applicants as members a group called “concerned members” from the so-called aggrieved members in Suits Nos. HU/92/2001 (Exhibit 3) and HU/285/2012 (Exhibit 12) and posited that the Applicants cannot therefore claim to represent Aggrieved Members’ of the Union when they are not the plaintiffs in the above suits nor expelled members in the Exhibit 10.  It is the submission of the Respondents that those aggrieved were in addition to being known and identified clearly, stated their grievance in the originating summons, unlike in the instant suit.

On the claim that the respondents are the persons who framed, made and who supplied the 2017 Constitution and Code of Conduct of Pensioner to members of Nigeria Union of Pensioners in Akwa Ibom State and in Nigeria, the Respondents submitted that it was the National Delegates Conference of the Union, involving delegates from all states of the Federation including Akwa Ibom State and the Federal Territory, Abuja at its meeting of 24th June, 2017 that amended the 2008 Constitution and Code of Conduct of the Union. And so the allegations that the 2017 Constitution was lent or supplied on the false pretence thereby making them liable for fraud on summary conviction to a fine or imprisonment are unfounded. It is the further submission of Respondents that in Suit Nos. HU/92/2011 and HU/285/2012, the plaintiffs represented their various branches of the Union in the State and sued for and on behalf of those branches for identified and common interest. The applicants in the instant suit lack such common interest in Exhibit 10 of their affidavit and cannot claim to represent them as was the case in those two suits.

 

On the allegation of unilaterally expulsion of some members of the Union, the Respondents contended that the Constitution and Code of Conduct of the Nigeria Union of Pensioners 2008 at Rule 21 (ii) (C) which is in pari materia with Rule 22 (ii) (c) of the amended Constitution and Code of Conduct, 2017 provides for the discipline of erring members in the instant case inter-alia that:

“The National Council shall have the power to impose disciplinary measure in cases of serious misconduct of any member or office of the Union as follows: (a) fine (b) suspension and (c) social expulsion”

It is also the contention of the Respondents that the expulsion of the recalcitrant members was done by the National Council of the Union on the recommendation of the State Executive Committee (SEC).

The Respondents submitted that, in the light of the contentious and substantial disputed facts, this case should not be heard and determined in an originating Summons citing the case of Ukwuom vs. Federal Ministry Of Sports And Social Development & 4 Ors (2005) 8 NLLR 275 @ 288 (P. 304 Paragraphs F-H) (C.A) Ratio 24, where it was held that:

 

“Originating Summons is only applicable where there is no dispute on questions of facts or the likelihood of such dispute. An Originating Summons would be appropriate where the issue is to determine short questions of construction and not matters of such that the justice of the case would demand the settling of pleadings.”

Similarly, the Respondent cited the case of Alfa vs. Altai (2018) 275 LRCN 133 @ 140 (SC) Ratio 7, where the Supreme Court held that:

 

“Originating Summons is used where the sole or principal question at issue is or is likely to be one of the construction of a written law or of any instrument made under any written law or any deed, will, contract or other document or some question of law, or in any proceedings where there is unlikely to be any substantial dispute of fact“.

The Respondents alleged that the Applicants failed to exhaust internal remedies before instituting this action. The Respondents referred to paragraphs 15 and 16 of their counter affidavit where they admitted that the applicants wrote to them letters on 4/6/2018, 12/6/2018 and 6/7/2018 without giving them enough intervals to convene meetings of the respective organs of the Union for the purpose of responding to those letters, and without considering the pertinent fact that the members of these organs live in different parts of the Akwa Ibom State and Nigeria. The Respondents quoted Rule 26 of the 2017 Amended Constitution of the Union which is in pari materia with Rule 25 of the 2008 Constitution inter-alia that:

 

”Institution of legal action against the Union either at the Local, State/Sectoral or National level must follow laid down procedures within a reasonable interval of 3 months at each stage.

  1. a)        Any aggrieved member of the Union must exhaust the following procedures for redress before resorting to litigation against the Union.
  2. i)         Formal complaints in writing to the leadership of the SAC for redress.            
  3. ii)       If his grievances are not properly addressed by the SAC; he is at liberty to take his complaint to the State/Sectoral Executive Council (SEC).

 iii)     In the event of dissatisfaction with the outcome of his case with the SEC he should lodge his complaints with the State/Sectoral Council (SC).

  1. iv)     If he is not satisfied with the outcome, then he should forward his case to the National Administrative Committee (NAC) for deliberation.
  2. v)        If he is not satisfied with the outcome of his case with NAChe should lodge his complaints with the NEC. 
  3. vi)       Thereafter, if he/she is not satisfied, he/she may now proceed to the court of law to seek redress after giving one month notice to the affected branch of the Union.

 vii)  Any aggrieved member/States/Sectoral branch who fail to exhaust the above laid down procedure before resorting to court action should consider his case null and void and of no effect.”

On issue no. 5 which is whether the Applicants have proved fraud, false pretence or any other crime for the Respondents to be convicted or fined, the Respondents posited that the Applicants have failed to give particulars as required by law to warrant prosecution. To buttress this the Respondents called in aid the case of Olalomi Industries Ltd. vs. Nigeria Industrial Development Bank Limited (2010) 178 LRCN 50 @ 56 (At pages 67JJ & 68A (SC) ratio 2:

 

“Fraud must be pleaded with due particulars supplied and evidence led on same. Fraud requires a higher degree of probability in its proof. … Allegation of fraud must be proved beyond reasonable doubt. It requires proof in the realm of probability not fantastic possibility”.

 

Similarly, the Respondents argued that by virtue of section 3 (1) of the Trade Union Act, officials like them, should only lose their office upon been prosecuted in a court of law in accordance with section 51 of the Act. The applicants have not in the instant case even remotely proffered or caused to be proffered any offence committed by the respondents.

The Respondents observed and submitted that paragraphs 32, 33, 34, 35, 38, 39, 42, 43 and 44 of the Applicants’ affidavit are arguments, conclusions and even judgments and in breach of Section 115 (2) of the Evidence Act and urged the Court to strike out the offending paragraphs.

It is also the submission of the Respondents that declarative reliefs are not granted as a matter of course and the applicants are required to lead convincing evidence to be so entitled.

Finally the Respondents submitted that this suit has no cause of action and should be dismissed.

 

APPLICANTS’ REPLY ON POINTS OF LAW:

By way of a reply on points of law, the Applicants posited as follows:

  1. i)         The Applicants are aggrieved members of the Union and have the locus standi to commence this action for themselves and on behalf of all the aggrieved members of the Union.

  1. ii)        The Respondents are sued in their personal names and post because Akwa Ibom State High Court, Uyo Division in suit No: HU/285/2012 struck out the names of the 3rd– 4thRespondents simply on the ground that they were not sued in their personal names and that every official, who occupies a public office is liable for his actions.

iii)       The senior counsel suggests that there are controversial facts and disputes, without naming them.

  1. iv)       Applicants’ averments merely reproduced the relevant parts of the Act, which the Respondents appear to be ignorant off, not as legal arguments, but as facts to prove that the necessary procedure for the amendment of the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners had not been followed.

  1. v)        The Applicants have exhibited five (5) letters written to the leadership of the Union; and three (3) letters to the Registrar of Trade Unions, all on the sole issue – the validity of the 2017 Constitution and Code of Conduct of Nigeria Union of Pensioners, said to have been approved on 26thApril 2017, by the Registrar of Trade Unions. Rather than answering the queries raised, the Respondents hastily expelled some aggrieved members from the union.

  1. vi)       The preconditions specified in the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners, for internal mechanism had being duly followed. But the 2ndRespondent had no intention of addressing the question raised.

vii)      The averments in the counter affidavit of 16th October 2018 and further counter affidavit of 1st November 2018, taken as a whole, confirms and supports the contention of the Applicants, namely that the 2008 Constitution and Code of Conduct of Nigeria Union of Pensioners, had not been amended in compliance with its rules and in conformity with the Trade Unions Act, Laws of the Federation 2004. The Respondents have not challenged nor contraverted the averments of the Applicants referring to National Insurance Corporation of Nigeria vs. Power and Industrial Engineering Company Ltd. (1986) 1 NWLR (pt. 14).

viii)    The Applicants are simply stating that the Trade Union Act specifies certain preconditions before any Constitution of a Union can be amended; and stipulated the pre actions that the Registrar of Trade Unions must take before approving any new rules.

  1. ix)       The new rules shall become effective on a date later than the date the Registrar approves and Registers the new rules as held inOzobia vs. Aboh (1999) 5 NWLR (pt. 601)per Mohammed, JCA (as he then was):

 

“…where a law places certain conditions precedent to the performance of a given act such act cannot be said to have been duly performed without the fulfilment of the stated condition …”

  1. x)        It is trite law that an Affidavit which is sworn on oath, if it contains contradictions should be disregarded by the court. The Respondents Affidavits are full of contradictions. Their Exhibit J – letter to the Registrar of Trade Unions contradicts their averment No 23; Their Exhibit H 1 Gazette publishing the proposed amendments; and letter No. HL.ITU/68/V.111/157 of 20thNovember 2017 from the Registrar of Trade Unions, not exhibited but attached, states that the alterations had been approved and registered with effect from 20th November 2017. That is seven (7) clear months after 26th April, 2017.

 

DECISION OF THE COURT:

Having gone through the originating summons and all the other processes filed in this suit, I have come to the conclusion that before the determination of any other issue, the justice of the case demands that the issues raised by the Respondents be considered first.  In doing this, I will take the issues presented by the Respondents randomly and will only have a recourse to the arguments of parties where necessary.

The issues raised by the Respondents in their written address are about seven (7) but I will only consider three (3) for reasons to be manifest anon. Some of the issues raised go to the substance of the case while the chosen three (3) can be taken at the preliminary stage. Issues which fall into the former category includes failure to proof fraud, depositions against provisions of the Evidence Act, Applicants lacking common interest, lack of locus etc. Some of the issues also lacked specifics and any legal impetus. These are issues on writ of summons not signed by the judge and case having no cause of action which were merely mentioned without any attempt at elucidation. It is imperative to note here that in spite of issues raised by the Respondents, the Applicants’ reply represented only a half-hearted response to the issues. When this is added to the fact that the Applicants filed a written address without argument, it goes without saying the court is not only deprived of the benefits of such arguments but it also signifies, to some extent, the acceptance of the positions of the Respondents on the issues so raised. Be that as it may, it is my lot to consider the issues any way.

One of the issues is whether it is proper given the controversial and disputed facts of this suit, to have instituted it by Originating Summons. Generally, commencement of action by originating summons is a procedure which is used in cases where the facts are not in dispute or there is no likelihood of being in dispute. It is also a procedure reserved for issues like the construction of instruments, will, contract, written law or some questions of law and where there is no substantial dispute of facts. See Ibadan S.E v. Adeleke (2007) 1 S.C.N.J. 41,  Ezeigwe v. Nwawulu (2010) 41 N.S.C.Q.R 522 and Atago v. Nwuche (2012) 12 S.C.N.J. 1015.

Now, the question here is, do facts in the instant case disclose disputed facts? To answer this important question recourse must be made to the reliefs/claims of the Applicants as that is what determines if the matters submitted can appropriately be taken by Originating Summons. This is the Supreme Court case of Anyanwoko v. Okoye (2010) 41 N.S.C.Q.R. 69, per F. F. Tabai, J.S.C. Not only that, the disputed facts must be substantial to render the initiation of this suit by originating summons inappropriate. It was Niki Tobi, J.S.C. (of blessed memory) in (Mrs.) Amanda Peters Pam & Anor v. Nasiru Mohammed & Anor (2008) 16 NWLR (Pt. 1112) 1; (2008) 5 – 6 SC 5 (Pt. l) 83:

 

“The law is that the dispute on facts must be substantial, material, affecting the live issues in the matter. Where disputes are peripheral not material to live issues an action can be sustained by originating summons”  

Based on this, the onus is on the Respondents to identify the offending reliefs and paragraphs in the affidavit to render the initiation of this suit by originating summons inappropriate. What we have here is a general statement that the facts are controversial and disputed without more. There is yet another matter and this is the filing of Counter-Affidavit in spite of his misgivings on the impropriety of the originating summons as an initiating process. This act amounts to a waiver of right and a submission to procedural jurisdiction. My Lord, Mary Peter-Odili, J.S.C., captured this elegantly in Nagogo v. CPC (2012) 7 S.C.N.J. 308, when she said:

“The situation is the more covered where in this instance the Appellant who has woken up to contest the viability of the suit at the trial court because it was commenced by originating summons instead of by a Writ of Summons had himself filed a counter affidavit and a written address. The Supreme Court had put paid to such late “sleep-in” when it held that a waiver of a procedural jurisdiction occurs when a litigant submits to the jurisdiction of the Court in spite of his misgiving of the initiating process. Also has to be emphasised that there is jurisdiction as a matter of substantive law. While procedural jurisdiction as in the case in hand can be waived by a litigant such cannot be waived where it is a contention against jurisdiction as a matter of substantive law. That distinction has to be made since admittedly a thin line between the two may appear and sometimes seem opaque; however the distinguishing mark is still available. I place reliance on Jikantoro v Dantoro (2004) All FWLR (Pt. 216) 390 or (2004) 13 NWLR (Pt. 889) 187; Mobil Unlimited v LASEPA (2002) 18 NWLR 20 (Pt. 798) 1 at 33; Etim v Obot (2010) 12 NWLR (Pt. 1207) 108”

For all the foregoing, this issue is reconciled in favour of Applicants.

The next grouse of the Respondents is that declarative reliefs are not granted as matter of course and that Applicants are required to lead convincing evidence to be entitled to such reliefs. It is true and trite that a Declaratory Relief cannot be granted upon admission and/or without oral evidence. See the case of Eke v. Okwaranyia (2001) 4 S. C. N. J. 322, where S. O. Uwaifo, J.S.C. quoted with approval the dictum of Megarry V.C. in Helzger v. Department of Health of Sound Welfare (1977) 3 All E.R. 444 at 451 thus:

 

“The court does not make declarations just because the parties to litigation have chosen to admit something. The court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are no declarations without argument that is quite plain.”

The above principle is however not without exceptions. Two judicial authorities comes to mind. The first is CBN v. Amao & 2 Ors (2010) 5-7 S.C. 30, where Walter S. N. Onnogehen, J.S.C. (as he was now CJN) said:

 

“In any event and as demonstrated supra, by the peculiar nature of the proceedings by way of judicial review, a Declaratory Relief is grantable, in appropriate circumstances, upon Affidavit evidence as under the Rules of Court. Affidavit evidence is not Pleadings but evidence which the Court can act upon in considering whether to grant the Relief or not to do so.”

The second is Adeogun v. Fasogbon (2011) 3 S.C.N.J. 364, where C. M. Chukwuma-Eneh, J.S.C. had this to say:

 

“It is settled law that a declaratory relief is not granted solely on admission; even also see Motunwase v. Sorgbe (1988) 5 N.W.L.R. (pt.92) 90, Bello v. Emeka (1981) 1 S.C. 101, Udo v. C.RS.C.N.C. (2001) 12 N.W.L.R. (pt. 732) 116 at 160 and Amaechi v. INEC (2008) 5 N.W.L.R. (pt. 1050) 227 at 311-313. That said; I agree with the reasons and reasoning in Amaechi’s case (supra) as in this case that the fact that no viva voce evidence has been called at the trial court on the pleading on the issue of declaratory reliefs as claimed here does not ipso facto render the proceedings before the trial court void.”

Since on the authority of Abu v. Odagbo (2001) 7 S.C.N.J. 317, the exercise of discretionary powers of the court in declaratory action goes to the merit of the case and not jurisdiction to entertain the action, I am prepared to discountenance the objection of the Respondent at this stage of the proceedings.

The next issue canvassed by the Respondent is failure of the Applicants to exhaust the internal remedies as provided by Rule 26 of the Union Constitution 2017 which is in pari materia with Rule 25 of the Union Constitution of 2008. The Respondents submitted that the Applicants wrote letters to them on 4/6/2018, 12/6/2018 and 6/7/2018 without regard to the provisions of Rule 25 of the 2008 Constitution and Rule 26 of 2017 Constitution which makes it mandatory for Applicants to give 3 months interval between each stage. This is with a view of allowing enough time for meeting by members scattered all over the Federation. The provisions of Rule 26 of the 2017 Constitution has been reproduced in page 12 of this judgment and it is not necessary to do so again. Suffice it to state here that the provisions of Rules 26 of the 2017 Constitution (the disputed constitution) and Rule 25 of the 2008 Constitution are the same. A quick check at the dates of the Applicants said letters shows a clear non-compliance with the envisaged three months interval. The one month notice before the institution of any case, was not also complied with. I am therefore in agreement with the Respondents that the institution of this action is done without exhausting the internal mechanism envisaged by Rules 25 or Rule 26 of the union’s Constitution whichever is applicable.

It is settled law that where a statute prescribes a legal line of action for the determination of an issue, be it administrative, chieftaincy or any other matter, the aggrieved party must exhaust all the remedies before going to court. See the case of Owoseni v. Faloye (2005) 7 S.C.N.J. 370 per Dahiru Mustapher, J.S.C. (later C.J.N. and of blessed memory). A condition precedent like Rule 25 of the 2008 Constitution of the National Union of Pensioners or Rule 26 of the 2017 Constitution of the National Union of Pensioners (whichever is applicable) puts the jurisdiction of the court on hold pending the compliance with the conditions. This position of the law was given judicial approval in the case of Nigercare v.  Adamawa (2008) 3 S.C.N.J. 36 thus:

 

“In my respectful view, the provision is a condition precedent as far as suits against the 1st defendant/respondent are concerned. Therefore, the failure of the appellant to comply with it clearly makes the suit incompetent. Contrary to the submission of the learned counsel for the appellant, the provision does not seek to oust forever the jurisdiction of the court but only temporarily. It just provides that unless the condition precedent is complied with a complaint or plaintiff cannot sue or initiate any action against the 1st defendant. Period!”

Based on the foregoing I find and hold that this suit is incompetent for being instituted without exhausting the internal mechanism envisaged by either the 2008 or 2017 Constitution of the union whichever is applicable.

It is on this score alone that I find and hold this suit is incompetent for being prematurely instituted or embarked upon. The effect of this is that the foundation of the case is not only shaken but is entirely broken and the substantive claims cannot be heard on the merits. Accordingly, the case is hereby struck out with no order as to cost.

Judgment entered accordingly.

………………………………………

HON. JUSTICE M. A. NAMTARI

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