Nigerian Union of Pensioners VS The Honourable Minister, Federal Ministry of Labour and Employment and ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

2^ND APRIL 2019 SUIT NO. NICN/ABJ/341/2017

BETWEEN:

Nigerian Union of Pensioners

AND

The Honourable Minister, Federal Ministry of Labour and Employment
The Registrar Trade Unions
Chief Temple Ubani

(For himself and on behalf of Electricity Sector/Retirees Welfare Association of Nigeria)

REPRESENTATION:

A. Bello, Jnr Esq; For the claimant
N. Ndukwe, Esq; Director Federal Ministry of Justice for the 1^st and 2^nd Defendants

JUDGMENT.

This is a suit instituted via originating summons dated 22/11/17 and filed on the 23/11/17. The claimant submitted three questions for determination as follows:-

Whether, in the exercise of the powers vested on the 1^st and 2^nd Defendants by Section 3 of the Trade Unions Act (Amendment Act) 2005 (hereinafter referred to as “The Act “), they can lawfully register a combination of pensioners as a New Trade Union to cater for the interest of their members while the claimant is still in existence and serving the same purpose?
Whether the power to register a New Trade Union by the 1^st and 2^nd Defendants “when it is expedient to do so for the purpose of re-grouping an existing “Trade Union” as contained in section 3(2) of the Act, can be interpreted or construed to mean power to register another Trade Union for Pensioners in Nigeria within the Area of jurisdiction specified in the Act.
Whether in the circumstances of this case, the 1^st and 2^nd Defendants can lawfully register splinter Groups headed by the 3^rd Defendant or any other combination of pensioners for that matter as a trade Union which is already covered by the claimant.

In anticipation of favourable resolution of the questions for determination, the claimant is seeking for the Reliefs stated below:-

A declaration of this Honourable Court that the claimant is an existing Trade Union comprising of All pensioners from the Civil Service of the Federation including Local Government, Statutory Corporations, Government owned companies, Educational institutions for which the Government of the Federation is responsible, All such similar establishments and Private sector Pensioners, and therefore its registration and recognition in that capacity have not been withdrawn by any enabling law, or in any way howsoever.
A declaration of this Honourable Court that being an existing Trade Union, the 1^st and 2^nd Defendants have no power in law to register other Trade Union to represent a combination of Pensioners specified within the Area of jurisdiction as contained in the 3^rd Schedule Part (B) of the Act.
An Order of injunction restraining the 1^st and 2^nd Defendants jointly and/ or severally by themselves, Agents or Privies, Servants or anybody deriving authorities from them from registering any combination of Pensioners as a Trade Union.
A declaration of this Honourable Court that having not being de-registered under the enabling law, the claimant is the lawful Trade Union in Nigeria to represent the interest of all categories of Pensioners specified in the Areas of Jurisdiction under the Act.

The originating summons is supported by a 25 paragraphs affidavit deposed to by one Elder Actor Zal, the General Secretary of the claimant. A written address was also filed along with originating summons canvassing argument on the three questions posed for determination.

The gist of the facts forming the basis of the claimant’s grouse before the court are that; Prior to 1978, there was over 800 different registered trade unions in Nigeria with various aims and objectives that because of the proliferation of these unions, there was unhealthy rivalry and completion among them all seeking for membership by whatever means. The situation became very chaotic and worrisome that the federal government came to the rescue in 1978 where the unions were reduced from 800 to 71 registered trade unions as presently constituted. It was stated that the main purpose of the said restructuring was to prevent proliferation to sanitize system. According to counsel this situation was captured by the Supreme Court in the case of OSAWE V REGISTRAR OF TRADE UNION (2004) 1 NLLR 34, where the apex court opined that the restructuring of trade union was to maintain public order and good governance. The main purpose of the restructuring carried out by government in 1978 was to prevent the proliferation of trade unions that pervaded during the pre 1978 era.

Counsel referred to the definition of trade union under the 2005 amendment Act, and the case of UDOH V O.H.M.B (1990) 4 NWLR (PT.142)52 AT 67, where the Court of Appeal gave the primary reasons for the existence of a trade Union to be regulation the terms and conditions of employment of workers i.e the union is to ensure that the terms and conditions given to workers by employers are suitable. Counsel submitted that it was because of this reason that the claimant was registered to regulate the terms and conditions of pensioners derived from their former employer or to ensure that those terms are suitable to the pensioners. Counsel asked having the above at the back of the mind does the law permit the 1^st and 2^nd defendants to register new trade union in favour of splinter groups from claimant.

Counsel reproduced the provision of section 3 (2) of the Act which provides thus;

3(2) No combination of workers or employer shall be registered as a trade union save with the approval of the Minister on his being satisfied that it is expedient to register the Union either by regrouping existing trade Unions, registering a new trade Union or otherwise however, but no trade union shall be registered to represent workers or employers in a place where there already exists a trade union.

According to counsel the 1^st and 2^nd defendants’ contention is that it is expedient to register new trade union from the claimant in order to re-group the claimant. This idea was influenced by the phrase contained in the body of section 3(2) of the Trade Unions Act, which provides:

‘‘…………………. On his being satisfied that it is expedient to register the union either by regrouping existing trade unions’’.

Counsel argued that it would appear from the ordinary meaning and grammatical expression of this section that the Minister is vested with the power to approve a new trade union if it is expedient to do so for the purpose of regrouping the existing one. According to counsel interpreting the law along this line will lead to manifest contradiction and absurdity of the purpose of the enactment, because that will mean that the Minister can approve the registration of one or more trade union from Nigeria Union of Pensioners all in the name of trying to re-group the union either because is too large otherwise. Counsel contended this court has a duty to apply the right interpretation that will make section 3(2) sensible and intelligible in order to give it its true meaning and in doing so this court is enjoined to read the entire section of the statute as a whole.

There is no doubt that sections 3(2) and 5(4) of the Trade Unions Act vest right in the claimant to carter for its members, and the right that its union be not thrown into confusion through proliferation of unions within the same area of jurisdiction, the principle of law which has been applied by the courts over years is that statutes that vest rights on an individual should be interpreted to respect such rights even when there are ambiguity in the section of the statute vesting that right and the court would adopt a construction which will favour the vested right of the individual DIDE V SELEKTIMIBI (2010) ALL FWLR (Pt.509) 583. In the instant case it is the duty of the Honourable court to interpret the vested right of the claimant in section 3(2) of the Act to respect the right of the claimant.

Counsel referred to the proviso to section 3(2) of the Act, where it states;

“But no trade union shall be registered in a place where there already exists a trade union’’.

Counsel also referred to definition of proviso in Black’s Law Dictionary 5^th Edition page 1102, means:-

‘‘A clause or part of a clause in a statute, the office of which is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it extent’’.

In NDIC V OKEM LTD (2004) 4 SCNJ 244 at 279, the Supreme Court held that:-

‘‘The object of a proviso is normally to cut down or qualify or create exceptions to or relax in a defined sense the limitations imposed or powers conferred by a section of an enactment, or to exclude some possible ground of misinterpretation of its extent, or to modify the main part of a section of a statute to which it relates or to restrain its absoluteness or generality…’’.

Counsel argued that the power vested in the minister to register new trade union when it is expedient for the purpose of re-grouping the existing trade unions are not whittled down by the said proviso which precludes him or restraining from approving for registration, a new trade union where one is already in existence

It is submitted by counsel that section 3(2) of the Act should not be given construction that will have the effect of defeating the very purpose of the Act. Such interpretation will bring back trade unionism in Nigeria to the bitter and unbridled rivalry and competition that existed before 1978, should be avoided in the case of UDOH V OHMB (supra) the court of appeal in construing a similar provisions of the above Act held that no more than one union shall exist in one industry or establishment.

The Supreme Court in the case of OSAWE’S case where the court interpreted sections 3(1) and (2) of the 2005 Amendment Act, stated thus:

‘‘In my view, this new provision makes it mandatory for the registrar of trade union on receiving application to register any trade unions to ensure that there is no other registered trade union in existence which caters for the same interest as the one applying for registration. If there is, it becomes incumbent in my view for the registrar as the custodian of such information, to decline to proceed to put into effect the machinery for the registration of the new trade union as set out under section 5(2) of the Trade Unions Act 1973’’.

Section 5(4) provides:

‘‘The Registrar shall not register trade union if it appears to him that any existing trade union is sufficiently representative of the interest of the class of persons whose interest in the union is intended to represent’’.

It is the submission of counsel that that in the instant case, the claimant was registered to represent all pensioners in Nigeria. The area of jurisdiction of the claimant, are clearly spelt out in Part B of the 3^rd Schedule and therefore the interest of all the splinter groups that seeks registration of a new trade union have been specifically taken care of.

It is further submitted that the interpretation given to section 3(2) of the Act by the 1^st and 2^nd defendants will do more violence to the intention of the law makers. It is submitted a new union can be registered for the purpose of regrouping the existing ones if and only if there is a new crop of workers that comes into existence whose status did not fit into the membership of the existing trade union. The claimant argued that the 1^st and 2^nd Defendants can only register a new trade union for purpose of re-grouping the existing ones if and only if there is a new crop of workers that comes into existence whose status did not fit into the membership of the existing trade union.

Counsel also posited that in interpreting statutory provisions where there is a general provision on an issue followed by a specific provision on the same issue, the specific, the specific provision will prevail over the general provisions. In the instant, case the provisions of section 3(2) and 5(4) of the Act are specific provision of the statute, they are mandatory provisions which admits of no discretion. On this counsel cited and relied on OSAWE’S CASE (supra), where the Supreme Court stated that if an application received by the registrar is caught by the provisions of this section, it is incumbent on the registrar of trade unions to refuse registration without publication of the application and writing objection to the registration.

It is the position of counsel that where the law or statutes places a duty on a public officer, it is always necessary and indeed mandatory to exercise such duties or powers within the confinesof the statute on this counsel relied on the case of OSAFILE V ODI (1)(1990)3 NWLR (PT.137) 130 AT 161 PARA F.

It is the contention of counsel that the 1^st and 2^nd defendants have no discretion in this matter and they will be acting contrary enabling statute if they proceed to register any new trade union in an area where the claimant is already representing, to do otherwise will not only violate the law but will amount to undo what was done in 1978 in preventing proliferation of trade union in Nigeria a return to chaos and disorderliness.. OSAWE’S case referred to.

It is the submission of counsel that the various agitations for registration of a new trade union out of the Nigeria Union of Pensioners and/or the purported re-grouping exercise to be carried out thereby are self-serving. It has been recognized that the government has no business forming a trade union for workers, or to determine which union the workers should belong. The interest of government should be there should be trade union for workers who can regulate the term and condition of employment of workers’. UDOH V O. H. M. B. (supra).

Counsel while relying of the dictum of Oputa, JSC of blessed memory in OSAWE’S case urged the court to hold that the 1^st and 2^nd defendants cannot legally register a combination of pensioners as a trade union under the pretext of re-organizing the claimant. Anything done along that line will be ultra vires the 1^st and 2^nd defendants, null and void and of no effect.

In reaction to the claimant’s originating summons, the defendants filed counter-affidavits and written addresses.

The 1^st and 2^nd defendants on 4/10/18, filed a 31 paragraphs counter-affidavit sworn to by one Mrs. Grace Onoja, a litigation clerk in the Legal Unit of Federal Ministry of Labour & Employment.

N Ndukwe, Esq; Director, (FMJ), who appeared for the 1^st and 2^nd defendants in oral adumbration before the court relied on the depositions contained in the affidavit in support and adopted the written address as his argument.

In the counter-affidavit of the 1^st and 2^nd defendants it was averred that the 1^st and 2^nd defendants are empowered by law to register new trade union on being satisfied that it is expedient to do so or by regrouping an existing trade union. The claimant’s jurisdiction covers as stated in trade dispute Act all pensioners from the civil service of the federation including local government statutory corporation government owned companied educational institutions for which the government of the federation is responsible, all such similar establishment and also private sector pensioners. The government restructure trade unions for the purpose of public order and good governance. The 1^st and 2^nd defendants did not register any splinter group of the claimant. The 1^st and 2^nd defendant were not represented at the emergency special national delegate congress that was held on 25^th April 2017. There were several applications pending before the claimant for registration as trade unions amongst which is the one for Association of retired public servants of Nigeria. The claimant cannot confirm the assertion of the claimant since there are several applications before the 1^st claimant. The defendants are processing many applications for registration as trade unions and any one deemed qualified may be approved for registration by the 1^st defendant as empowered by the trade union Act. The 1^st and 2^nd defendants have not registered any union in the name of regroupings as claimed by the deponent. There are laid down procedure in trade unions Act for registration.

In arguing the three issues together counsel submitted that granting the reliefs sought in the originating summons will amount to usurpation by the court of powers that validly reside in the executive. In making this submission counsel referred to the provisions of section 3(1 & 2) of Trade Unions Act, which provides the responsibilities and powers of the 1^st and 2^nd defendants, as follows:-

‘‘An application for the registration of a trade union shall be made to the Registrar in the prescribed form and shall be signed.

In the case of a trade union of workers, by at least fifty members of the union ; and
(b) in the case of of a trade union of employers, by at least two members of the union

(2) “No combination of workers or employer shall be registered as a trade Union save with the approval of the Minister on his being satisfied that it is expedient to register the union either by regrouping existing trade unions .. registering a new trade union or otherwise however, but no trade union shall be registered to represent workers or employers in a place where there already exists a trade union. ”

Section 5 read:

Where an application for the registration of a trade union is received by the Registrar, the following provisions of this section shall apply:

Provided that if the application appears to the Registrar to be defective in any respect, he shall notify the applicant accordingy and shall take no further action in relation thereto until the application has been amended to his satisfaction or a fresh application is made in place thereof.

The Registrar shall cause a notice of the application to be published in the federal gazette stating the objection to the registration of the trade union in question may be submitted to him in writing during the period of three months beginning with the date of the gazette in which the notice is published.
Within three months after the end of the said period of three months the Registrar shall consider any objections submitted to him during that period and if satisfied.
That no proper objection has been raised
That none of the purpose of the trade unions is unlawful; and
That the requirements of this Act and of the Regulation with respect to the registration of trade unions have been complied with,

Counsel argued that the provisions of section 3(2) of the Trade Union Act as amended gives the 1^st defendant powers to register a new trade union by regrouping an existing trade union on the condition that it is expedient for him to do so. That the claimant remains a registered trade union therefore means that it is subject to extant laws and is subject to the provisions of section 3(2) of the Act. Counsel argued that the system of government and governance practice in Nigeria, an arm of government is prohibited from exercising the powers that are constitutionally vested in another arm of government. On this contention counsel relied on the case of AG ABIA STATE V AG OF THE FEDERATION (2003) LPELR-610(SC) counsel also while relying on the case of EHI EDOBOR UZAMERE V PHARMA MATHEW AISAGBONRIDON URHOGHID & ORS. (2009) LPELR- to the effect that legislature does not employ words in vain. The trade union Act vested the powers to register and regroup unions at the discretion of the 1^st defendant and until that Act is amended, it remains the sole function of the 1^st defendant and not otherwise.

In concluding his submission counsel submitted that allowing this suit will do violence to the basic and settled principle of separation of powers and therefore urged this court to dismiss this suit with substantial costs as it is an invitation to the court to prevent the 1^st and 2^nd defendants from carrying out their lawful exercise of statutory duties.

The claimant filed a reply on point of law wherein counsel argued that the 1^st and 2^nd defendants clearly misapprehended the purport of an originating summons proceedings and in particular the claims before the honourable court herein. To buttress his submission counsel referred to Order 3 Rule 16(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, which provides as follows:-

16.—(1) Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may by originating summons apply to the Court for the determination of any question of construction arising from the instrument and for a declaration of the rights of the person(s) interested, in so far as such question of construction arises from a subject matter over which the Court has jurisdiction.

(2) A party activating the interpretative jurisdiction of the Court shall indicate with sufficient particularity the provisions or part of the document sought to be interpreted.

Counsel submitted that in the instant case the claimant has activated the interpretative jurisdiction of this court calling on it to examine the provisions of section 3 of trade Unions Act 2005, as amended and to determine the question formulated in the originating summons. This arose out of the facts that there is an attempt on the part of the 1^st and 2^nd defendants to take some steps which are contrary to the provisions of the said section to the detriment of the claimant.

Counsel contended that after determining the questions then the court will look at the reliefs and see whether it can grant all or any of the said reliefs or at all. Counsel wonders how granting reliefs being sought will amount to usurpation of power of the executive. Counsel insist the issue in contention in this originating summons is for the court to determine the extent/limit of the exercise of their executive powers under section 3 of the Trade Unions Act (as amended) by interpreting the said section. Counsel urged court to discountenance submission of counsel.

The 3^rd defendant in opposition to the originating summons filed a 27 paragraphs counter affidavit on 26/2/18. The counter-affidavit was sworn by one Chief Temple Ubani, the 3^rd defendant himself. It was averred that the claimant was creation of military fiat of 1978 backed up by Decree nos. 21 and 22 without taking into cognisance the distinct peculiarities of the different categories of pensioners in Nigeria. There are different pensioners in Nigeria which can be broadly categorised into the following groups amongst other existing under the claimant.

Local government pensioners
State government pensioners
Federal civil service pensioners
Federal parastatal pensioners
Federal academic institutions pensioners under the contributory pension’s scheme
Private sector pensioners.

It was also averred that the creation of the claimant was principally designed with the state and local governments’ pensioners in focus and both have the highest number of pensioners than all the other categories of pensioners put together. It was stated that as a result of the creation of the claimant, other groups of pensioners were not under the claimant as an umbrella union to all the sectors. The electricity retirees has no application for registration before the 1^st and 2^nd defendants.

In the written address counsel formulated three issues for determination as follows:-

Whether the reliefs sought by the claimant if granted by this court will not amount to a usurpation of the powers and duties of the executive.

If the first question is resolved against the 3^rd defendant:

Whether the facts disclosed in the counter-affidavit of the 3^rd Respondent do not justify the registration/regrouping of a new union for some categories of pensioners.
Whether the provision of the trade unions Act restricting the creation of trade unions in areas where there are existing ones are not inconsistent with the fundamental rights to free association enshrined in the 1999 constitution of the federal republic of Nigeria (as amended), particular regard being had to the historical backdrop of the promulgation of the Act.

In arguing issue one counsel placed reliance on sections 3(1 & 2) and 5 of the Trade Union Acts and submitted that having regard to the powers of the 1^st and 2^nd defendants as contained in the provisions of this Act it will amount to violation of the sacred doctrine of separation of power between the three arms of government. In support of this contention counsel relied on the cases of AD ABIA STATE v AG OF THE FEDERATION & RS. (2003) LPELR-610(SC) AND CHEVRON NIGERIA LIMITED V IMO STATE HOUSE OF ASSEMBLY & ORS.(2016) LPELR-41563(CA). Counsel submitted that the provisions of Trade Unions Act are very clear on the duties to be performed by the 1^st and 2^nd defendant in respect of receipt of application for registration and its consideration. These duties are imposed by statute. From the reliefs being sought it is clear that the claimant wants this court to exercise the powers and duties of the 1^st and 2^nd defendants. This means the minister will not be in a position to determine if the new union seeking registration is within the area of jurisdiction of in schedule 3 of the Act and power of the Minister to refuse registration of new union, if he comes to the conclusion that schedule 3 to the Act already capture the new union.

The reliefs meant to make the court to do what the minister is conferred by law to do. On this submission counsel relied on the case of AJAKAIYE V IDEHAI (1994) 8 NWLR (Pt.364) 504. The power to make declaration regarding trade union recognition of existing unions registration of any trade union or regrouping is vested in the government. Counsel urged the court to dismiss this suit as an invitation to supplant the 1^st and 2^nd defendants in the trade union registration process. The grant of the reliefs will prevent the lawful exercise of duty.

It is also the submission of counsel that this action is meant to prevent the 1^st and 2^nd defendants from exercise of lawful powers and functions that the legislature assigned to them. The claimant by its affidavit has acknowledged that the 1^st and 2^nd defendants have power to receive and consider applications for registration/regrouping of trade unions and to direct registration and regrouping of trade union. It is also clear from the affidavit that the claimant admitted receipt of application for registration the defendants are yet to exercise their powers.

Any declaration by the court on the issue of regrouping or registration will effectively undermine the ability of 1^st and 2^nd defendants to determine as they have been statutorily tasked to do if pending application for registration satisfies the requirement of registration. The TUA categorically stated that the Registrar I the appropriate and competent person to determine registration.

Since the 1^st and 2^nd defendant have not exercise their power court cannot construe its powers of review as doing so will prevent exercise of the powers. It is the contention of counsel that without the 1^st and 2^nd defendants exercising their powers under the TUA this court cannot construe its powers of review to be permission to prevent the exercise of those powers. And there can be no doubt that this action in its current constitution is designed to prevent the exercise of executive power. Counsel wonder if the registrar of trade union is not allowed to register union then what should he be permitted to do.

Counsel contended that the power of court to review the activities of executive is not power to render executive redundant. The claimant cannot invoke jurisdiction of the court with regards to registration of trade union. The claimant will only be entitled to approach the court to contest any determination by the 1^st and 2^nd defendants which the claimant is convinced is adverse to it. The claimant must wait the outcome and not to pre-empt the decision of the 1^st and 2^nd defendants rushing to court to play the role of 1^st and 2^nd defendants or prevent them from playing their lawful role. WABARA V NNADEDE (2009) 16 NWLR (Pt.1166) 204.

It is the contention of counsel that since the law forbid usurpation of power, to entertain the claimant’s claims is to engage in speculation and engaged in academic debates and squabbles. The speculative dimension of this suit is that the clamant has concluded without any shred of logic or justification that the 1^st and 2^nd defendants will permit the registration of a new union. This is an assumption. The courts do not tolerate or act on assumptions, speculation of guesses even where they are plausible or likely. In IVIENAGBOR V BAZUAYE (1999) 9 NWLR (Pt.620) 552, (1999) 6 SCNJ 234, the Supreme Court cautions against speculations.

On academic dimension counsel submitted that the claimant’s suit is that as the 1t and 2^nd defendants have the power and duty to determine the registration of a rival pensioner union, that power is due to be exercise anytime soon. That power, as already argued, must be exercised in favour of registration of a new union. If that power is exercised in favour of registering the union, this suit automatically becomes academic as the option to automatically restrain is lost as court cannot grant injunction on completed act.

It is also argued that grant of this application will defeat the intention of legislature. This is because in interpretation of statutes or constitution the court is obliged to give effect to the true intention and wishes of the legislature. AMAECHI V INEC (2008) 5 NWLR (Pt.1080) 227 SC, (2008) LPELR-446(SC), FESTUS IBIDAPO ADESANOYE & ORS.V PRINCE FRANCIS GBADEBO ADEWOLE & ANOR.(2000) LPELR-142(SC), AHMED V KASSIM (1972) 3 FSC 51.

In concluding argument on this issue counsel submitted that the claimant’s suit offends the principle of separation of power as it urges judicial usurpation of powers of the 1^st and 2^nd defendants, a prevention of the discharge of lawful functions of the 1^st and 2^nd defendants, a disregard for clearly expressed intention of the legislature and a fetter of executive discretion. Counsel urged the court to resolve issue one in favour of the defendants.

ISSUE TWO

In arguing this issue counsel submitted that a law, whether constitutional or otherwise, is to be interpreted having regard to the intention of the legislature and in a bid to give effect to that intention. An enactment must be interpreted having regard to the mischief it sought to resolve and making sure that every interpretation of that enactment has the effect of curing that mischief. IFEAZU V MBADUGHA & ANOR.(1984) LPELR-1437(SC).

Counsel submitted that the Trade Unions Act does not envisage the registration of a fresh trade union where any existing trade union sufficiently representative of the interests of the class of persons whose interest the union is intended to represent. By the use of the word which we have emphasised above, the Act clearly shows the mischief that it seeks to prevent to wit: the proliferation of representations of the same class of persons by multiple unions. It is clear that Trade Union Act will not prevent a registration/regrouping where the existing union does not sufficiently represent the interest of intended members of the new union. Which led to internal crisis amongst members and leadership of the union.

It is submitted where there is insufficient representation as in the case of 3^rd claimant, the 1^st and 2^nd defendants have the licence to register new unions or regroup existing ones to address the insufficiency suffered by the complaining class.

The 3^rd defendant distinguished this case with the case of UDOH & ORS. V O. H. M. B. & ANOR (supra) relied by the applicant in that in the case of Udoh the plaintiffs who had left the 2^nd defendant trade union (Medical & Health Workers Union of Nigeria) to join another trade union of Nan-academic staff union of educational association (NASU) dis not alleged insufficient representation nor did they apply to the Minister for registration or regrouping they unilaterally joined another union. While the case at hand is against regrouping of an existing union or the registration of a new union. In Udoh’s case neither Minister nor Registrar is a party counsel contended a case is only authority for what it decided and the legal position it expounds is only applicable to the extent of the similarity of facts. INTERDRIL NIG. LTD V UBA PLC (2017) 13 NWLR (Pt.1581) 52 counsel argued UDOH is inapplicable to this suit.

With regard to OSAWE V THE REGISTERED TRUSTEES OF TRADE UNIONS (1985) 1 NWLR (Pt.4) 755, counsel submitted the question of sufficient representation was not raised or argued whether before the registrar or before any court. The plaintiff had applied to register a new trade union which application was rightly refused by the registrar on the ground of existence of a trade union sufficiently catering to the applicants’ interest. In their suit at the trial court and in all other appeals to the Supreme Court, the applicants did not once contend that they were insufficiently represented. In fact the only contention was that the registrar failed to comply with provisions of TUA which required the publication of an invitation for objection. The case is inapposite to this action. Counsel urged the court to resolve this issue in favour of the 3^rd defendant.

ISSUE THREE

In arguing this issue counsel contended that paragraphs 7 – 9 of the affidavit in support of the originating summons shows that before 1978, different unions had been formed to agitate the labour rights of their members. The existence of these union were an irritation to the Military government of the day such that the military government moved to snuff life out of these groups and remove their ability to congregate at grassroots level. To do this, the military did not consult with the unionists, the military did not hold public hearing and the military did not subject its intentions to public debate of any parliament, the military unilaterally imposed its own classification of unions on the nation and by compulsion, thrust persons who do not know each other, who did not at any time agree to align forces and whom perhaps had different aspirations for their constituencies into the same bed.

Counsel submitted with section 40 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) every Nigerian is free to belong to a trade union of his own choice. Indeed, the right of a person to membership of a trade union is not just restricted to the right to belong to but extends to the right to form a trade union. This right is constitutional, this right is fundamental. This right has been infringed by the provisions of TUA.

Counsel conceded to limitations the provision of section 45 created, but was quick to argue that there is nothing about the formation of trade unions which is injurious to defence public safety order, morality or health if anything it is actually in the interest of public order to allow persons who are disgruntled with the leadership of their union to exit that union rather than stay trapped in it. It is also argued that Decrees 21 and 22 of 1978 are not decrees of a democratic society and the constitution could only have been deliberate in limiting the enacted law limitation to fundamental rights to democratically justifiable laws. Counsel contended TUA cannot fall within valid exception to free association, to prevent registration of new unions in areas where there are existing unions.

Counsel urged the court to dismiss this suit with substantial cost.

CLAIMANTS REPLY ON POINTS OF LAW

Counsel started his reply by quarrelling with the three issues formulated by the 3^rd defendant. It is the submission of counsel that this is rather strange and unprecedented in Originating Summons Proceedings. Order 2 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is the enabling provisions that entitled the Claimant to file this action before the Honourable Court. It provides that:-

‘’3 Civil Proceedings that may be commenced by way of Originating Summons includes Matters relating principally to the interpretation of any Constitution, enactment agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court hasjurisdiction by virtue of the provisions of Section 254(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by any Act or law in force in Nigeria.

Also Rule 16(1) thereof provides that:-

“Any person claiming to be interested under an enactment, Constitution, agreement or any other written instrument may by Originating Summons apply to the Court for the interpretation of any question of construction arising from the instrument and for the declaration of the rights of the person(s) interested’’.

These provisions are very clear and ambiguous. It enables the Claimant to approach the Honourable Court in matters relating principally to the interpretation of the provisions of Section 3(2) of the Trade Unions Amendment Act 2005. In other words, it is the Claimant who claims to be interested under the said enactment, that is seeking the interpretative
jurisdiction of the Honourable Court over the questions formulated on the body of the Originating Summons and therefore the only thing the 3^rdDefendant can do is to respond to the Claimant’s Originating summons and proffer its own argument is based on issues formulated therein. The 3^rd defendant has no right to formulate his own question as a response to the Claimants’ Originating Summons, except he has a Counter Claim.

It is submitted that it is the Claimant in the Originating Summons that determines what questions to be interpreted from the enactment or instruments stated in the Summons, and not the Defendants as in this case. In the case of NJC V. ALADEJANA (2015) ALL FWLR (PT.772) 1798 AT 1825 PARA F.The Court held as follows:-

“ln Originating Summons Proceedings, the issues to be addressed are those raised in the Originating Summons. It does not lie in the mouth of a Respondent to formulate hisown issues for determination. If a Respondent alleges that he has any claim or is entitled to his own relief, he may counter claim: ACHU V. CROSS RIVER STATE (2009)3 NWLR (PT. 1129) 475, 507. Furthermore, issues in a case are circumscribed by the claims before the Court as constituted by the prayers. AI arguments and finding not related to the prayers are amiss .

In the instant case the questions for the Court’s determination and the reliefs sought in the Originating Summons have been clearly set out by the Claimant, and neither the Defendants nor the Court can go outside it with due respect and humility. Consequently, it is submitted that the 3 issues formulated by the 3^rdDefendant’s Counsel in his Written Address are totally outside the questions formulated by the Claimant and should therefore be disregarded by theHonourable Court.

It is further submitted that to be able to answer the said two issues, the Claimant would need to further affidavit and present fresh argument, which were never contemplated in the extant Originating Summons. Notwithstanding this, issues 1 and 3 contained therein will be responded to.. In respect of the first issue formulated by the 3^r^dDefendant which is whether:-

“The reliefs sought by the Claimant if granted by this court will amount to a usurpation of the powers and duties of the executive’’.

It is submitted that the issue of whether the Honourable Court can grant all or any of the reliefs claimed in the Originating Summons, can only arise after the Court has embarked on the interpretation of the questions formulated as arising from the provisions of the Trade Unions Amendment Act. It is submitted that the failure of the 3^rd Defendant to respond to the arguments canvassed by the Claimant in the interpretations of the said enactment, tantamount to a concession to all the legal submission advanced by the Claimant. In the case of I. A. &AC LTD. V. USA PLC (2014) ALL FWLR (PT.739) 1080 AT 1094 PARA G. It was held that: Where an opponent fails or neglects to respond to arguments of his adversary in a brief or oral presentation before a Court, the defaulting party is taken as having admitted all the points raised by the other party.

The 1^st relief claimed by the Claimant is that the Court should find and hold that its registration as a Trade Union has not been withdrawn. This is a declaration which the Court has the power to make on the strength of the affidavit evidence before it.

The 2^nd and 4th reliefs are that after the Honourable Court has determined that the Claimant is the only Trade Union that has the right to represent Pensioners, the Court should apply the law, that is Section 3(2) of the Trade Unions Act, and hold that the 1^st and 2^nd Defendants have no power in law to register any group of Pensioners other than the Claimant. This prayer is strictly on point of law.

The 3^rd relief is an order of injunction which is a remedy that normally flows from the threatened violation of the legal right of the Claimant. The law is very clear that where a statute vests a legal right on a citizen, a Court of law will be willing and ready to resist any attempt by anybody and by whatever method to deny such citizen the enjoyment of the right so conferred by law. LONGE V. FIRST BANK (2010)3 SCNJ (PT. 1) 295 AT 319 (Supreme Court) please see also EBIRIM V. AGBUGBA (2016) ALL FWLR (PT. 827) 675 AT 718 PARA E.

It is the submission of counsel that none of these reliefs are the powers and duties of the Executive called in issue. The position is well acknowledged that the i” and 2^nd Defendants have the powers to register New Trade Unions. However the question in this Suit is whether the 1^st and 2ⁿ^dDefendants can register New Trade Union comprising of members of the Claimant? The answer to this question arising from Section 3(2) of the Trade Union Act can only be answered by the Honourable Court which is vested with the power to do so by Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) If the answers to the questions are to the effect that the 1^st and 2^nd Defendants cannot register New Trade Unions comprising members from the Claimant, then the Court must make declarations of that right in its Judgment in favour of the Claimant. This is the sole responsibility of the judiciary and not the Executive. Consequently, it is submitted that all the authorities cited in the address under references were cited out of context, inapplicable to this case and mere spacious academic exercise.

ON ISSUE NO.3

The summary of the argument of Counsel on this issue can be found at Page 30 para 6.14 which is to the effect that:-

‘‘It is therefore manifest beyond cavil that the TUA, (Trade Union Act) in so far as it restrict the formation of Trade Unions based on the existence of existing Unions in that area is an affront to the Constitutional rights to free association, particular regard being had to motivation of the government of the time.”

In other words, that the provisions of Section 3(2) of the Trade Union Act should be struck down because it violates the right to freedom of Association provided in the Constitution of the Federal Republic of Nigeria (1999) as amended.As rightly conceded by the 3^rd Defendant’s Counsel in his submission at Page 28 Para. 6.7 and 6.8 the said Constitutional right is not absolute, as it is made subject to laws, that is reasonably justifiable in a democratic society.

It is the submission of counsel that the entire provisions of the Trade Unions Act under reference is one of such laws that is reasonably justifiable in a democratic society. Particularly Section 3(2) thereof which was intended to curb the chaotic situation existing before 1978 and sanitize the Trade Union in Nigeria. It was intended to maintain public order and good government. The Supreme Court put it succinctly clean in the case of OSAWE &ORS V. REGISTRAR OF TRADE UNION (supra) AT PAGE 53 PARA C – F PER ANIAGOlU JSC (as he then was)

“Finally, although Section 37 of the Constitution of 1979 gives right to peaceful assembly and association, Section 41 thereof provides that nothing in S.37 shall invalidate any law that is reasonably justifiable in a democratic society, in the interest among others (see S. 41. (l)(a) of “public order” the proliferation of Trade Unions clearly lends itself to chaos in labour circle – a fact which has the tendency of destabilizing society by its tendency to wild-cat strikes and work – stop pages called by all sorts of desperate and unviable Unions. It is therefore, in the interest of public order that systematized, cohesive and responsible Trade Unions be established for the good of society’’.

In his own contribution OPUTA JSC (as he then was) at Page 57 of
the report, he had this to say:

“Now the right to assemble freely, to associate with other people and to form political parties, or Trade Unions no doubt exists. But the freedom to exercise that right is an entirely different thing. That freedom exists within and not outside all existing and relevant laws. Under section 41(a) of the same 1979 Constitution laws can be made curtailing the rights to associate, and form Trade Unions under Section 37. One has been made Act No.22 of 1978 which introduced the new Section 3(2) which stipulates that “no Trade Union shall be registered to represent workers or employers in a place where there already exists a Trade Union MR. NWADIAL0₁SAN, for the Respondent, on the other hand, discussed the history behind the promulgation of the Trade Union Act of 1978 and submitted that it was in the public interest to bring a little order into Trade Union structure and activities in the country. I agree that sanity and public order was served by instilling a little discipline into the rank and file of the Trade Unions movements ..’’.

Counsel urged the court to grant the claimant’s originating summons.

THE 3^RD DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION

This is a preliminary objection filed by the 3^rd Defendant/Applicant challenging the competence of this suit and pray this Honorable Court for an order striking out the suit in limine or dismissing the action in its entirely on the following grounds:

This Honourable Court lacks the jurisdiction to entertain the action of the Claimant as the Claimant’s action disclose no cause of action in that:
By the Claimant’s own pleadings, the application of the 3^rd Respondent to register a rival trade union is still pending before the 1^st and 2^nd Defendants who have not decided the application one way or another.
The Claimant’s action is presumptuous, pre-emptive and speculative as it challenges decisions of the 1^stand 2^nd defendants which have not been taken.

In line with the rules of this court the Claimant filed a written address, which was adopted by counsel as his argument on the application. There was no affidavit filed in support because the objection is on ground of law. However, we invoke and place reliance on all the process already foiled before the Court.

In the written address single issue was distilled for determination to wit:

‘’Whether the Claimant’s suit which of its own accord reveals that the 1^st and 2^nd Defendants have not determined the 3^rd Defendant’s union registration application disclose a reasonable cause of action’’.

In making this application, counsel placed reliance solely on the pleadings of the Claimant. Particularly, the facts to which there is no dispute which for easy reference are reproduced hereunder:

the Claimant is a trade union of pensioners in Nigeria;
the 3^rd Defendant is a member of the Claimant and he and the persons he represents constitute at section unit of the Claimant;

iii. there have been skirmishers and disagreements within the Claimant particularly with regard to the welfare of the 3^rd Defendant and the sect oral unit he represents

as a result of the disagreements, the 3^rd Defendant and his sectorial unit resolved to break away from the Claimant in furtherance of which they made an application to the 1^st and 2^nd Defendants, as required by law;
the 1^st and 2^nd Defendant has convened and held meetings with all the relevant stakeholders, including the Claimant and the Claimant was present in at least one of such meeting a; and
the 3^rd Defendant’s application is still pending and the 1^st and 2^nd Defendants have not determined that application one way or the other.

ARGUMENT.

It is submission of counsel that the issue formulated ought to be resolved in favour of the 3^rd Defendant/Applicant. The contention of the 3^rd Defendant/Applicant is that the action of the Claimant, in its current constitution, disclose no reasonable cause of action against the Defendants.

Counsel asked the question; What is a cause of action? To answer this poser, counsel resorted to the position of the Supreme Court in Ibrahim v. Osim (1998) NWLR (Pt. 82) 257 where the Supreme Court per Uwais JSC (as he then was) in defining reasonable cause of action said:

“ I think ‘reasonable cause of action’ means a cause of action with some chance of success, when (as required by paragraph (2) of the rule) only the allegations in the pleading are considered. If when those allegation are examined it is found that the alleged cause of action ids certain to fail, the statement of claim should be struck – out.

Similarly, in Rinco Const. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (pt. 929) 85 at 96, the Supreme Court held that:

“Reasonable cause of action mans a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks.” (Emphasis supplied).

It is the contention of counsel that from the above therefore, it is fairly obvious that a suit will disclose a reasonable cause of action if it disclose facts which if uncontroverted by a Defendant, will guarantee success to the Plaintiff. Put different in the words of the Supreme Court in Rinco, a suit will disclose a reasonable cause of action if it set out the Plaintiff’s legal rights as well as the failure of the defendant to fulfil its corresponding obligation.

Counsel contended that the Claimant’s suit fails to disclose a reasonable cause of action. This is because in terms of settling out the rights of the Claimant and the failure of the 1^st and 2^nd defendants the Claimant’s suit is wanting. The right being asserted by the Claimant is quite clear- it is the right to solely represent the interest of pensioners as a registered trade union in Nigeria.

It is the contention of counsel that the affidavit of Elder Actor Zaldid not disclose any wrong doing.

According to counsel the 1^st and 2^nd Defendants have done nothing yet to threaten, diminish, impugn or infringe upon the claimant’s right to represent the interest of pensioners in Nigeria. At best, the 1^st and 2^nd Defendants may threaten that right someone in the future but at the moment, there is no present threat. All the claimants have proceeded upon in instituting this action, is an apprehension, a fear, a suspicion and a supposition, there is no allegation, let alone evidence, that the 1^st and 2^nd Defendants have taken a decision on the 3^rd Defendant application. With respect to a Trade Union sung to assert the integrity of its membership pool or jurisdictional sphere. It is submitted that the cause of caution when there is a positive action that undermines that membership pool or jurisdiction sphere. Accordingly and within the particular context of this suit, the Claimants cause of action will only be triggered when the 1^st and 2^nd Defendants permit the regrouping of the Claimant in such a way that it is compelled to part ways with some of its members and also forced to sphere the pensioners’ representation space with a new union. Then and only then will a right of action accrue. Interestingly however, the Claimants suit does not just fail to state that the 1^st and 2^nd Defendants have permitted the regrouping of the claimant, it has actually stated the opposite that the 1^st and 2^nd Defendants have not taken that decision. Where then is the failure of the 1^st and 2^nd Defendants to fulfil their statutory obligation to the Claimants?

Counsel argued that the non-determination of the application of the 3^rd Defendants by the 1^st and 2^nd Defendants is crucial regard being had to the settled position of the law that with regard to executive duties, the Courts restrict and restrain themselves only to the performance of corrective and review roles. The law is settled and has so been for a whole now that a Court, as an arm of government from exercising powers conferred on them by the statute. In this action, there can be no doubt that 1^st and 2^nd Defendants have the power to register new trade unions or to regroup existing ones. The claimants, in paragraph 19 of the affidavit in support of the Originating Summons, has stated that the “proposed” regrouping of the claimants is to be done by the 1^st and 2^nd Defendants “in accordance with the Power vested on them by the Trade Union Act.” The Claimant clearly therefore recognizes that this power lies in the Claimants.

Counsel referred to the case of Attorney-General Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396, and submitted that the Court deprecated the pre-emptive exercise of judicial powers in a manner that interferes with executive function and identified the peril of allowing such judicial misadventure . The Court held:

“The courts in conclusion can therefore in proper circumstances declare a recognition illegal after the Governor has exercised his primary powers of recognition. Where it is exercised arbitrarily and without recourse to procedure provided by enabling statute, his exercised power can be challenged.”

It is the contention of counsel that to prevent the executive from exercising his statutory function swill strike a dangerous blow on the doctrine of separation of powers. It will in my view amount to judicial usurpation of executive function. (Emphasis Supplied)

It is the contention of counsel that the power of the Courts to review the activities of the executive arm of government is not a license to the court to render the executive arm redundant by usurping the duties of the executive. Counsel argued that his contention is not that the Claimant cannot invoke the jurisdiction of this Court with respect to the registration of a rival union. It is the submission of counsel that the claimant will only be entitled to approach the court for any determination by the 1^st and 2^nd Defendants which the Clamant is convinced is adverse to it. The Claimant however must await that determination rather than pre-empt the 1^st and 2^nd Defendants and rushing to urge this Court to play the role of the 1^st and 2^nd Defendants or to prevent them from playing their lawful rules. In Wabara v. Nnadede (2009) 16 NELR (Pt. 1166) 204 C.A.

“ We must here revert again to the doctrine of separation of powers’ which the learned Attorney-General himself did not dispute is still the structure of our system of government . In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and Judiciary.

It is instructive to state that our Courts have undoubted judicial tradition of exercising considerable self-restraint in usurping plainly executive functions or else preventing the executive arm from exercising its functions. It however, has preferred to exercise a corrective or review role in relation to executive acts. In the case of Merchant Bank Ltd. v. Federal Minister of Finance (1961) All NCR 598 at 603, the apex Court held thus:

“The powers under section 14 of the ordinance are administrative powers which are properly vested in the Minister, and not the Courts to exercise those powers. Inn those circumstance, the function s of the Courts begin if and when it is alleged (which is not the case here) that the administrative powers have not been exercised in accordance with the ordinance. It is functions of the Court which are protected by Constitution.”

Flowing from the above case therefore, the judicial powers of this Court will only be when it is alleged (as has been done here) that the 1^st and 2^nd defendants have not exercised their administrative powers in accordance with the Act. The 1^st and 2^nd defendants having not exercised their administrative powers at all (whether in accordance or at variance with the Act), have put the judicial functions of the Court (which pertain to review and correction only in abeyance. This principle is such an entrenched legal principle so much so that even when the executive errs in making a finding that it is statutorily required to make, the Courts can only invalidate the said finding but cannot go further to replace that finding with findings of its own, as the power to make such findings have been placed elsewhere by statute. This much was made clear by the Supreme Court in Ajakaiye v. Idehai (1994) 8 NWLR (Pt.364) where at pages 532-533 paras. D.A the Court held as follows:

‘‘The Court cannot under any guise exercise the jurisdiction outside the powers conferred expressly by the legislature on bodies other than courts outside the court’s judicial authority as enacted in sections 6 and 236 of the 1979 Constitution of the Federal Republic of Nigeria, as amended. Now, section 3, 4 and 6 of the Traditional Rulers and Chiefs law, 1979 No. 16 of 18979 of the defunct Bendel (now Edo) State laid down the procedure for making a Chieftaincy declaration. This law gives to the various bodied of persons functions to perform and the courts cannot usurp such powers and functions and start on their own to draw up chieftaincy declaration based on their findings in open court as happened on this occasion.

What the learned trial judge in the instant case had indeed done was to usurp the functions of the law making body-in this case, the IvbiosakonDistrict Council – by drawing up a chieftaincy declaration for the people of Otuo. As Omolotu-Thomas J.S.C. aptly put in the Adigun and others v. Attorney General of Oyo State, Suit No: CA/I/154/84 of 5^th December 1985, a dictum approved by this Court in Adigun & Others V. Attorney General of Oy State (1987) 1 NWLR (Pt.53) 678 and recently re-stated also by this Court in Adigun & Others. V. Attorney General of Oyo State (1987) 1 NWLR (Pt.53) 678 and recently re-stated also by thus Court in Equamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at Page 41:

“It is not the business of the Court to make declarations on Customary Law relating to the selection of Chiefs under that law. The exercise of such functions is not directly related to the general jurisdiction of the Courts under Section 236 of the general jurisdiction of the Courts under Section 236 of the Federal constitution of 1979 so long as the powers exercised in good faith as being a power lawfully conferred by the legislative (carltona Ltd. v. Commissioners for Works (1943) 2 All ER 560 at 564 per Lord green M.R. In the exercise of the courts judicial function under Section 236 of the Constitution, orders, declaratory of the functions or powers under the law can be made for example with a view to determine the validity or otherwise of the exercise of a particular custom, in contradistinction from the making of ‘DECLARATION’ as a form of sub-legislation under the law.”

Elsewhere in that judgment the Court held as follows:

“Where there is a statutory provision for making an order or declaration and the making of same is reposed in a named office, whether Minister or Commissioner or indeed whether the president of the Republic or Governor of a State , such function cannot be usurped by the Court. The further a court can go is to declare as to validity or otherwise of that order or declaration of the public officer, but the court has not got the jurisdiction to take over the function of such public officer by making its own order or declaration as against the statutory provisions.”

It is thus clear that this suit, being one that complain of facts that have not been performed, is incompetent on itself and fails to disclose a reasonable cause of action against the 1^st and 2^nd Defendants. It is important to state that the Claimant, apart from acknowledging in its affidavit that the power of the 1^st and 2^nd Defendants have not been exercised in relation to the trade union registration application of the 3^rd Defendant/Applicant, also acknowledges this facts in the manner of reliefs it seeks before this Court. Reliefs 3 in its Originating Summons, reads thus:

“An order of injunction restraining the 1^st and 2^nd Defendants Jointly and/or severally by Themselves, Agents or Privies, Servants or anybody deriving authorities from them from registering any combination of Pensioners as a Trade Union.”

It is trite law that an injunction cannot lie against a completed act. Thus by seeking an order of injunction, the Claimant clearly demonstrates to this Court its acknowledgement of the fact that the registration of any combination of pensioners as a trade union in Nigeria (other than the Claimant) has not been done or has been a completed act. Consequently therefore, the 1^st and 2^nd Defendants have not failed to discharge their statutory obligations to the Claimant and have not however impacted the Claimant’s right to associate as a trade union or as the alleged sole union for pensioners in Nigeria.

It is further submitted that this suit is an invitation to the Court to flourish in speculation and to invite the Court into academic debated and squabbles. The speculative dimension of this suit is that the Claimant has concludedwithout any shred or logic or jurisdiction that the 1^st and 2^nd Defendants will permit the registration of anew union. This is an assumption. The Courts to do not tolerate or act on assumptions, speculations or guesses even where they are plausible or likely. In Ivienagbor v. Bazuaye, (1999) 9 NWLR (Pt. 620) 552, (1999) 6 SCNJ 234 at 243-244, the Supreme Court, per Uwaifo, J.S.C; cautioned thus:

“Speculation is a mere variant of imagination guess which, even where it appears plausible, should never be allowed by a court of law to fill any hiatus in the evidence before it”. (Emphasis Supplied)

The law is so repulsed by the adoption or utilization of speculations and assumption that any judgment entered on the basis thereof would on that score be faulty (we refer to Mbam v. State (2016) LPELR-40966(CA)). Speculation was defined by Augie, JCA (at the time) in Isah v. State (2007) NWLR (Pt.1049) 582 at 614, Paras A-B (CA) as “the art of theorizing about a matter as to which evidence is not sufficient for certain knowledge”. Using that definition, is there certain knowledge that the Minister intendeds to register a rival pensioner union? Is there certain knowledge /evidence as to whether the Minister will approve the registration of a rival pensioners union? The answer is no. indeed, in paragraphs 19-22 of their affidavit in support of the Originating Simmons already reproduced above, the Claimant acknowledges that all it has to go on (and to urge on the court are perceptions and apprehensions.Thus, even if the Claimant is correct and the registration of a rival union is an act that the 1^st and 2^nd Defendants are intent on doing, they must await the execution of that intention for until it is executed, an intention is moot, dead and inactive. In Iden v. The State (1994) LPEPR-14608(CA), the Supreme Court had this to say about mere intention:

“An intention is a design or fixation of the mind on a particular line of act or conduct. And until intention is overly applied or executed in a particular way or direction, it is lost to any human being other that the Almighty God”.

It is argued by counsel that it is only reasonable that the 1^st and 2^nd defendants may approve the new union, they may reject the union or they may choose not to act altogether, all of which options the Claimant cannot be dissatisfied with. This Court can therefore not voyage, as the Claimant does, on the speculative expedition of envisaging that the 1^st and 2^nddefendants will permit the registration of a rival pensioner unionor that the new union will eventually be a rival union at all. That is the speculative Dimension of the claimant’s suit.

The academic dimension of the Claimant’s suit is that as the 1^st and 2^nd Defendants have the power and duty to determine the registration of a rival pensioner union, that power is due to be exercised anytime soon. That power, as already argued, may be exercised in favour of or against the registration of a new pensioner union. If that power is exercised in favour or registering the union, this suit automatically becomes academic as the option to restrain the 1^st and 2^nd defendants will become automatically lost seeing that the court cannot grant injunction on a completed act. If the power is exercised against registering the new union, this suit also becomes academic as the 1^st and 2^nd defendants will refuse the registration because they essentially agree with the contention of the claimant in this suit.

To conclude in proper perspective, perceptive, counsel refers again to the definition of a cause of caution in Rinco’s case. We then ask, based on that definition, “having regards to the fact that the claimant avers and asserts that the 1^st and 2^nd defendants have not registered a rival union, can this suit, even if undefended, succeed?” Put differently, “does this suit have a good (if any) chance of success in securing an order against the 1^st and 2^nd defendants when by the claimant’s own depositions, the defendants have only received an application and have not acted on its?” The answer is an obvious no.

In concluding his submission counsel argued that:

a suit only disclose a reasonable cause of action when it clearly sets out the right of the Claimant and the corresponding facts of the failure by the Defendants to fulfil their statutory obligations to the Claimant;
by the Claimant’s own depositions, the 1^st and 2^nd Defendants have not, as yet, taken any decision on the 3^rd Defendant/Applicant’s union registration application which may be regarded as a breach of the claimant’s right to association or sole representation in the pensioners jurisdiction of the trade unions.
the judicial powers of this court (which are limited to the review and correction of executive powers) have been put in abeyance by the non-exercise, by the 1^st and 2^nd Defendants, of their powers to allow the 3^rd Defendant/Applicant’s application to register a new pensioner trade union.
the law frowns on the utilization of suppositions and assumptions any judicial exercise and any judgment obtained upon a supposition is a faulty one; and
as the Claimant’s suit is filed pre-emptively on the supposition and assumption that the 1^st and 2^nd Defendants will resolve the 3^rd Defendant/Applicant’s application in favour of the 3^rd Defendant and against the Claimant. The suit is incompetent and liable to be struck out;

finally, counsel urged the court to allow this application and dismiss the claimant’s suit.

CLAIMANT’S RESPONSE TO THE PRELIMINARY OBJECTION

ISSUE FOR DETERMINATION

Whether the Originating Summons discloses a cause of action.

The preliminary objection is predicated on the assumption that this
action is premature, academic and an invitation of the Court to invade the powers of the Executive in an egalitarian society that embraces the doctrine of separation of powers between the Executive and the Judiciary.

It is clear from the harvest of legal submissions of Counsel for the Objector that Counsel was unmindful of the peculiar nature of this case, consequent upon which he proceeded to advance erroneous submissions as it were, backed by irrelevant and inapplicable judicial authorities. The law is very clear and that is, every cases must be decided according to their peculiar circumstance.

By this Originating Summons, the Claimant is inviting this Honourable Court to deploy its interpretative jurisdiction to examine the provisions of Section 3(2) of the Trade Union Act (Amendment) Act 2005, to determine whether the 1^st and 2^nd defendants can lawfully create another Trade Union from the claimant, which is the only Trade Union registered to take care of Pensioners in Nigeria, under the guise or pretext of re-grouping.

It is submitted that the power of the 1^st and 2^nd defendants to create New Trade Union where no one is in existence, is sacrosanct, not contested and incontestable. This is not the claim before the Honourable Court. Section 3(2) of the Act provides as follows:-

3(2). “No combination of workers or employer shall be registered as a trade Union save with the approval of the Minister on his being satisfied that it is expedient to register the union either by regrouping existing trade unions registering a new trade union or otherwise however, but no trade union shall be registered to represent workers or employers in a place where there already exists a trade union. ”

This case is centeredon the proviso of the said Section which states that:-

“But no Trade Union shall be registered to represent workers or employers in place where there already exist a Trade Union.”

Counsel argued that the claimant is contending that being the umbrella body of all Pensioners in Nigeria, it was registered as a Trade Union and therefore no Trade Union can be registered for the Pensioners except and until that Section of the law is altered or amended. The effect of the above provision is far reaching and they are:-

(A) It creates a vested right and obligation on the Claimant to be the only registered Trade Union to represent all Pensioners in Nigeria.

(B) It assures that all applications for registration of New Trade Unions for the benefit of group of Pensioners in Nigeria other than the Claimant shall be rejected and struck down.

(C) It creates an assurance for the Claimant that, until the contrary is stated under the enabling law, the Claimant and no other Union shall represent all Pensioners in Nigeria.

This vested legal right and obligations are inviolable and must be respected by all and protected by the Court resolutely. In the case of LONGE V. FIRST BANK (2010)3 SCNJ (PT.1) 295 AT 319, The Supreme Court held that:-

“When a law vests a right on a citizen a Court of law will resolutely resist any attempt and by whatever method to deny the citizen the enjoyment of the right conferred by law.”

Also in the case of OSAWE &ORS V. REGISTRAR OF TRADE UNIONS (2004)1 NWLR 34 AT 53, the Supreme Court held that:

“An existing registered Trade Union has a vested right to cater for the interest of its members within its registered objects,rules and regulations. Such a registered Trade Union has a right which the law Courts should protect. That its organized labour be not thrown into confusion, to the detriment of its registered Trade Union, by mushroom Unions, ostensibly aimed for the same purpose, springing up here and there.”

The allegations contained in the Affidavit in Support of the Summons is that there is a serious threat to the legal right and obligation vested on the Claimant by the above Section, by a combination of the following facts.

(A) That a group of pensioners from among the Claimants represented by the 3^rdDefendant, have filed applications before the 1^st and 2^nd Defendants, seeking to be registered as a New Trade Union.

(B) That the applications are pending before the 1^st and 2^nd Defendants and have not been rejected or struck down.

(C) That Principal Officers of the Claimant and the 2^nd Defendant met to deliberate on the issue with a view of resolving some of the problems that brought about the applications for registration.

(D) That after the deliberations, it was manifestly clear from the discussions that the 1^st and 2^nd defendants have made up their minds to register a new trade union from the claimants union under the pretext or guise of re-grouping the unions.

The claimant approached this court to determined what this court intends to do does not amount to invasion of the legal right of the claimant under the guise of re-grouping the existing of trade union. The 3^rd defendant has however, come up with an objection contending that the application have not been registered and that this action is pre-mature. It is submitted that the moment there is threat of violation or infraction of a person’s legal right such person has the requisite cause of action to proceed to court to seek an injunctive remedy to restrain the threatened infraction of his legal right. LONGE V FIRST BANK PLC (supra). It is submitted that it is a very wrong proposition of the law to say and insist that, the cause of action can only be triggered when the applications have been approved and a New Trade Union registered from among the Claimant’s members, in other words that the act complained about must have been carried out before there exist a cause of action. It is argued that a cause of action can exist even when the act complained about has not been carried out. In the case of EBIRIM V. AGBUGBA (2016) ALL FWLR (PT.827) 675 AT 717 PARA D – E. The Court defined a Cause of action while citing with approval ”The law of pleadings under Codes of Civil Procedure as follows:-

“What is a Cause of Action? Jurists found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be

(a) A primary right of the Plaintiff actually violated by the Defendant or

(b) The threatened violation of such right which violation the Plaintiff is entitled to restrain or prevent as in the case of actions for injunction or

(c) It may be that there are doubts as to some duty or right or claim which the Plaintiff is entitled to have clear up, that he may safely perform the duty or enjoy his property’’.

While the Objector confined his own definition of cause of action to the 1^st meaning (A) In the above judicial decision, the Claimant’s cause of action is circumscribed in definition (B) and (C) therein. In other words, under the definition in (B) The Claimant has identified the threatened violation of its vested right to remain the only registered Trade Union for the Pensioners by the refusal of the 2^nd Defendant to reject the applications for registration of the 3^rd Defendant as a New Trade Union, from the existing Trade Union (Claimant). Yet the law was properly stated by the Supreme Court in the case of OSAWE &DRS V. REGISTRAR OF TRADE UNIONS (SUPRA) AT PAGE 51 PARA A. That:

“Having regard to the mandatory provisions of this Section. If an application received by the Registrar is caught by the provisions of this Section, it is incumbent on the Registrar of Trade Union to refuse registration without publication of the application …’’.

Not only that the Claimant has also identified the threat of violation of its legal right by the clear intention manifested by the 1^st and 2^nd Defendants to create another Trade Union of Pensioners under the guise of re-grouping. The word “Threat” has been defined in Black’s Law Dictionary 5^thEdition at Page 1327

“The term “threat” means an avowed present determination or intent to injure presently or in the future.

“A declaration of intention or determination to inflict punishment, loss or pain on another or to injure another by the commission of some unlawful Act.H

“A menace;especialy, any menace of such a nature and extent as to unsettle the mind of the person on whom it operates.

The Oxford Advance Learners Dictionary defines the word “Threatened” at Page632 to include.

“To seem likely to happen or cause something unpleasant.It defines ‘threat’ at the same Page to include “The possibility of trouble, danger or disaster.”

The Oxford Advanced Learner’s Dictionary defines the word ‘Threatened’’ at page 632 t include:

‘to seem likely to happen or cause something unpleasant ‘.

It defines ‘threat’ at the same page as ‘an atmosphere that makes you feel threatened or frightened. Arising from the above definitions are the following fat that is:

It is the contention of counsel that refusal or failure of the 1^st and 2^nd Defendants to reject and strike down the applications for registration of a New Trade Union for the benefit of Pensioners represented by the 3^rdDefendant coupled with the intention to create another Trade Union from the Claimant by the 1^st and 2^nd Defendants under the guise of re-grouping are serious threats that seem likely to happen, which is unpleasant to the Claimant.

The 3^rd Defendant Objector in his paragraph 4.6 of Page 6 of the
Written Address argued that:

“All the Claimants have proceeded upon in instituting this action, is an apprehension, a fear, a suspicion. There is no allegation, let alone evidence, that the 1^st and 2^nd defendants have taken a decision on the 3^rd Defendant’s application …. ”

It is submitted that even if that is the position, such apprehension, fear and suspicion constitutes the requisite state of mind and the requisite ground that the 1^st and 2^nd Defendants intends to create another Trade Union from the existing one, is sufficient threat to cloth the claimant with the required cause of action.

It is the submission of counsel that the claimant need not wait until its legal right is violated before belatedly filing this action. The Court held in the case of EBIRIM V. AGBUGBA (SUPRA).

The 3^rd definition of Cause of action mentioned under (c) above consists in the fact that, the Claimant needed to know the extent of its legal right created under Section 3(2) of the Act and also the extent of the powers of the 1^st and 2^nd Defendants, in the Registration of New Trade Unions, and that the Court will exercise its interpretative jurisdiction donated by Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria (1999) as amended to determine whether the Claimant’s legal right will be violated if a New Trade Union is registered by way of re-grouping.

Section 6(6)(b) of the said Constitution provides as follows:-

“The judicial powers of vested in accordance with the foregoing provisions of this Section.

“(b) Shall extend to all matters between government or authority and to any person in Nigeria, and to all actions and proceedings there to for the determination of any questions as to the Civil rights and obligation of that person’’.

The present action is an invitation of your Lordship to invoke the Constitutional powers donated by the above provisions to determine the various questions formulated in the Originating Summons as it affects the Civil rights and obligations of the Claimant arising under the Trade Union Act. The Claimant sought for injunction and order of Court to stem its threatened right to remain the only Trade Union to represent all Pensioners in Nigeria s provided under Section 3(2) of the Act. It is submitted that the court cannot shut the door of the throne of Judgment seat of the Honourable Court against the Claimant.

It is also argued that the Claimant has sufficient rights and interest which are likely to be violated and therefore has a Cause of Action to confer the Honourable Court with the requisite jurisdiction to entertain its reliefs in the interest of justice.

In concluding his submission counsel urged the courtto refuse the preliminary objection and consider the originating summons on the merit.

REPLY ON POINTS OF LAW

In reply on points of law. Counsel address centers on the said issues under the following sub-headings:

Statutes should be interpreted holistically.
The inaction of the 1^st and 2^nd Defendant does not give rise to a cause of action.
The case of EBIRIM V AGBUGBA (2016) ALL FWLR (PI 827) 675 cited by the Claimant is not applicable to the present case.

Statutes should be interpreted holistically.

Counsel began his argument by referring section 3(2) of the Trade Union (Amendment) Act, hereinafter referred to as ‘’the Act”, the interpretation of which is the subject matter of this suit:

3(2) Nocombination of workers or employers shall be registered as a trade Union save with the approval of the Minister on his being satisfied that it is expedient to register the union either by regrouping
existing trade unions, registering a new trade union or otherwise however, but no trade union shall be registered to represent workers in a place where there already exists a trade union.”

The Claimant, at paragraphs 2.3 – 2.4 of its response to the 3^rdDefendant/Objector’s preliminary objection, stated as follows:

”This case is centered around the proviso of the said section which states
that:-

‘But no Trade Union shall be registered to represent workers or employers in place where there already exists a Trade Union.”

The claimant is contending that being the umbrella body of all Pensioners in Nigeria, it was registered as a Trade Union and therefore no Trade Union can be registered for the Pensioners except and until that section of the law is altered or amended. The effect of the above provision is far reaching and they are-

It creates a vested right and obligation on the Claimant to be the only registered Trade Union to represent all Pensioners in Nigeria.
It assures that all applications for registration of New Trade Unions for the benefit of group of Pensioners in Nigeria other than the Claimant shall be rejected and struck down.
It creates an assurance for the Claimant that, until the contrary is stated under the enabling law, the Claimant and no other Union shall represent all Pensioners in Nigeria.”

The 3^rd Defendant humbly submits, with respect, that the Claimant, at paragraphs 2.3 – 2.4 of its response to the 3^RD Defendant/ Objector’s preliminary objection, failed to interpret section 3(2) of the Act holistically by myopically focusing on the proviso of the section which states that:

‘But no trade unions shall be registered to represent workers or employers in place where there already exist a Trade Union.”

The failure on the part of the Claimant to interpret section 3 of the Trade Union Act holistically, but instead focus and interpret a portion of section 3(2) solely, in exclusion to all other provisions of the Act, has led to a limited understanding of the intendment of the drafters of the Act.

The law is trite that statutes must be interpreted holistically and not in piecemeal. In BUHARI V. OBASANJO (2005) ALL FWLR (PT. 273) 1 AT 144, the Supreme Court, per Ejiwumi, J.S.C., held that:

‘It must be borne in mind that in construing the provisions of a section of a statute, the whole statute must be read in order to determine the meaning and effect of the words being interpreted.”

The claimant, with respect, failed to avert its mind to the preceding portion of section 3(2) of the Act which states that

“No combination of workers or employers shall be registered as a trade Union save with the approval of the Minister on his being satisfied that it is expedient to register the union either by regrouping existing trade unions, registering a new trade union or otherwise however, … ”

Section 3(2) then goes on to state as follows:

” …but no trade unions shall be registered to represent workers or employers in place where there already exist a Trade Union.”

It is the submission of counsel that a holistic interpretation of section 3(2) of the Act reveals the following:

Any registration of workers or employers under the Act requires the Approval of the Minister.
Before granting his approval, the Minister must be satisfied that it is expedient to register a new trade union either by regrouping existing trade unions, registering a new trade union or otherwise.
In the exercise of his discretion to approve the registration of a new trade union, the Minister must take into consideration the fact that no trade union shall be registered to represent workers or employers in a place
where there already exists a trade union.

Counsel submitted that from the above, it can be gleaned that the decision as to whether a trade union represents workers in a place where there already exists a trade union lies solely with the Minister. In exercising his powers as to whether to grant the approval of the registration of a new trade union, the Minister, and no one else, is to decide whether there exists a similar trade union or not.

It is argued by counsel that for clarity sake, the 3^rd defendant/objector does not oppose the claimant’s argument on the impropriety of registering a new trade union where there already exists a similar trade union which represents workers in the same place. It is clear from section 3(2) of the Act that where a new trade union seeking to be registered which represent workers in a place where there already exists a trade union, the Minister must not grant his approval for the registration of such a union.

However, the argument of the 3^rd defendant/objector is that it is for the Minister and, with the utmost humility and respect, not the Claimant nor this Honourable Court to decide whether there already exists a trade union in the same place pursuant to section 3(2).

In the case of OSAWE V REG. TRADE UNIONS (1985) 1 NWLR (PT 4) 755 @
762 – 763, PARA: F – B, KAZEEM, J. S. C. has stated that it is the responsibility of the registrar of trade union to no trade union shall be registered to represent workers or employers in a place where there already exists a trade union.

It is submitted that the provision of section 3(20 of the Trade Union Act has made it mandatory for the Registrar of Trade Unions, on receiving an application to register any trade union, to ensure that there is no other registered trade union in existence which caters for the same interest as the one applying for registration. If there is, it becomes incumbent in him, view, for the Registrar, as the custodian of such information, to decline to proceed to put into effect the machinery for the registration of the new trade union as set out under the Trade Union Act.

In the present case, the reliefs which the Claimant seeks to obtain from this Honourable Court are aimed at usurping the powers of the Minister to decide whether a trade union seeking to be registered carries out the functions of an already registered trade union and reassigning those powers to this Honourable Court.

It is further submitted that it is not the legislaturesintention that this Honourable Court, or any other Court, should exercise these powers. A holistic reading of the Act shows that it is the intention of the Legislature that the decision as to whether a trade union seeking to be registered carries out the function of an already registered union lies solely on the Minister and the Registrar of Trade Unions. This Honourable Court is humbly urged to reject the invitation by the Claimant to interfere in the Administrative powers of the Minister and strike out this suit. As the inaction of the 1^st and 2^nd defendant does not give rise to a cause of
action

It is the contention of counsel that the question which logically flows from its argument above is; upon the application of the 3^rd Defendant, has the 1^st and 2^nddefendants failedto consider whether there is any trade union in existence which caters for the same interest as the one which the 3^rd defendant seeks to be registered, so as to give rise to a cause of action in favour of the Claimant?Counsel answered the above poser in the negative.

Counsel submitted that ‘cause of action’ is defined as the totality of facts that give rise to a Plaintiff’s claim. In SAVAGE V. UWAECHIA (1972) 1 ALL N.L.R 255 @ 261 Fatayi-Williams, J. S. C. defined cause of actionas follows:

‘A cause of action is defined in Stroud’s dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage.”

From the above it is clear that the elements of a cause of action are (l) The wrongful act and (2)Damage which flows from the wrongful act. In the present case, there are no facts before this Honourable Court which reveal any wrongful act(s) by the Defendants. There are also no facts showing any damage suffered to the Claimant.

It is submitted that in the present case, a cause of action can only arise in favour of the claimant where the Minister in granting the application of the 3^rd defendant/objector fails to take into consideration the fact that no trade union shall be registered to represent workers in a place where there already exists a trade union.

Contrary to the Claimant’s assertion, a cause of action cannot arise in its favour merely because there has been an application for registration of a trade union which the claimant feels a trade union already exists in the place where the trade union sought to be registered is to operate. This is because, as has been submitted earlier, the sole prerogative of determining whether or not a similar trade union exists lies with the Minister.

It is only where the Minister has failed to exercise its power to determine whether a similar trade union exists, or has exercised that power in an unconscionable way that a cause of action can accrue in favour of the Claimant.

Counsel submitted that the law is trite that in order to discover the ’cause of action’ in a case, the Court is to look into the originating process of the Claimant. In a case instituted by way of originating summons, to satisfy itself as to whether a cause of action accrues in favour of a Claimant, the Court is to look into the Affidavit in support of the originating summons.

Counsel invited the court to take judicial notice of the claimant’s affidavit in support of the originating summons which forms part of the records of this Honourable Court. A perusal of the said affidavit will reveal that the claimant did not make any deposition with regards to the lack of consideration by the Minister as to whether a similar trade union to the one which the 3^rd Defendant seeks to register exists. Also, the 3^rd defendant did not depose to any facts as to whether the Minister has granted or made any steps towards granting the said application.

It is the contention of counsel that the Claimant relies on paragraph 19 of the affidavit in support to found as accruing a ’cause of action’ in its favourthe said averment is reproduce below:

“19. That after the end of the discussion with the 2”^d Defendant on all the issues, it became clearer to me that what the 1^st and 2″^d Defendants intended to do is to register a New Trade union from among the Claimants in favour of the Splinter Groups all in the name of ‘Re-grouping’ the Claimant in accordance with the power vested on them by the Trade Union Act.”

It is clear from paragraph 19 of the Claimant’s affidavit that all the claimant is relying on are inklings and suspicions which are not backed up by any evidence whatsoever that the 1^st and 2^nd Defendant intends to register a new trade union from among the Claimant.

However, in an attempt to mislead this Honourable Court, the Claimant at paragraph 7.2 of its response to the 3^rd Defendant’s preliminary objection stated as follows:

“I therefore humbly submit that the refusal or failure of the 1^st and 2″^d Defendants to reject and strike down the applications for registration of a New Trade Union for the benefit of Pensioners represented by the 3^rd Defendant coupled with the intention to create another Trade Union from the Claimant by the 1^s^t and 2″^dDefendant under the guise of re- grouping are serious threats that seem likely to happen, which is unpleasant to the Claimant.”

It is the contention of counsel that the Claimant cannot possibly determine whether the 1^st and 2^nd defendants have failed to reject or strike down the application for registration of a new trade union by the 3^rdDefendant when the 1^s^t and 2^nd Defendants have not taken any action with regards to the application.

The claimant has portrayed the absence of any action as a purposeful, albeit negative, act i.e. refusal or failure to strike down the application for registration by the 3^r^dDefendant. This refusal to strike down the application cannot operate in a vacuum. The 3^rd Defendant humbly submits that a refusal to strike down the application must necessarily accompany an acceptance to allow the application.

It is submitted that from the affidavit of the claimant the 1^s^t and 2^nd defendants have not taken any step with regards to the application by the 3^r^ddefendant. The absence of any action by the 1^st and 2^nd defendants is neither an acceptance nor refusal of the 3^rd defendant’s application.

The 3^rd defendant/objector, with respect, submits that the Claimant is attempting to mislead this Honourable Court. This Honourable Court is humbly urged to discountenance the argument of the Claimant in this regard and allow the preliminary objection.

COURT’S DECISION.

I have carefully and painstakingly studied the originating process commencing this suit, the notice of preliminary objection, the counter-affidavits and further and better affidavits and the various addresses filed by the parties in this suit.

It behooves on me to quickly resolve certain preliminary issues before dealing with the preliminary objection and the originating summons.

It is an age long settled principle of law that claim in an action is circumscribed by the reliefs sought before the court. The duty of a claimant therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. This means that any issue not coming within the reliefs sought will be discountenance for being irrelevant and incompetent. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47: this also is a pointer to the settled principle of law that a defendant in an action is only to restrict his answer to the claim to facts that form his defence and cannot without putting up a counter claim make a case different from the case put forward by the claimant. It is based on this settled principle of law that I shall restrict my consideration of issues to the issues raised by the claimants claim before the court.

The 3^rd defendant apart from filing counter-affidavit in opposition to the originating summons also filed a notice of preliminary objection wherein he sought for an order of this court dismissing this suit on the ground that there is no cause of action disclosed by the originating summons.

On ……………… the originating summons and the preliminary objection to this suit were heard by the court on ……………….., at which the respective learned counsel for the parties adopted and adumbrated upon their respective written addresses to both the notice of preliminary objection and the originating summons in support and in opposition.

I have carefully considered the totality of the objection, the originating summons and also taken due benefits of the totality of the written and oral arguments vigorously canvassed by the respective learned counsel.

It is elementary principle of law that there must be a cause of action for an action to be maintained before a court of law. This is an indispensable pre-requisite for successful prosecution of a suit before a court of law. A suit is vindication of some legal rights. Such a right can only arise if certain material facts exist.

Cause of action had been defined by plethora of decision to simply means ‘factual situation the existence of which entitles one person to obtain from the court a remedy against another person’ or ‘’the facts which constitutes the essential ingredients of an enforceable right or claim’’. The phrase comprised every fact which is material to be proved to enable the plaintiff to succeed. See EGBE V ADEFARASIN (1985) 5 SC 50, ALESE V ALADETUYI (1995) 7 SCNJ 40. By another definition cause of action ‘is in effect, the facts or combination of facts which gives rise to a right to sue and it consists of two elements, the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage’. See SAVAGE V UWEICHIA (1972) 1 ALL NLR (PT.1) 251, EGBUE V ANKA (1988) 2 NWLR 598, (1988) LPELR-1038(SC), ADESOKAN V ADEGOROLU (1997) 3 SCNJ 1. It is also referred to as ‘the act on the part of the defendant which give the plaintiff his cause of complaint’. A cause of action is constituted by the bundle of aggregate of facts which the law recognize as giving the plaintiff a substantive right to make a claim for remedy or relief. It is, in short, the factual ingredients of a legal right or claim. A cause of action simply means the facts which when proved will entitled a plaintiff to a remedy against the defendant. See OSHOBOJA V AMUDA (1992) 7 SCNJ 317. The factual situation which the claimant relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed against the defendant. It has also been stated that having regards to the provisions of section 6(6) of the constitution a cause of action is the question as to rights and obligation of the plaintiff founding the action to be determined by the court in favour of one party against the other party.

However, it must be pointed out that it is the substantive law of the subject matter of litigation that one should look to find out what facts constitute the cause of action for the particular claim. This will be determined by looking at the writ of summons and statement of claim, in the case at hand it the originating summons and the affidavit in support that will be looked at to discover if there is a cause of action disclosed. See KUSADA V SOKOTO NA (1968) 1 ALL NLR 377, ADESOKAN V ADEGOROLU (1997) 3 SCNJ 1. Where statement of claim discloses no cause of action and the court is satisfied no amendment no matter how ingenious will cure the defect, the statement of claim will be struck out and the action dismissed. THOMAS V OLUFOSOYE (1986) 1 NWLR 664

The statement of defence is irrelevant in considering issue of cause of action, but the entire circumstance of the claim will be considered.

In the case at hand since the issue bothers on declaration of right and injunction, the law based on which the declaration and injunction is being sought will be considered vis-à-vis the depositions in the affidavit which stand as the statement of claim. The relevant averment in the claimant’s affidavit in support are:

“19, That after the end of the discussion with 2^nd Defendant on all the issue it became clearer to me that what the 1^st and 2^nd Defendants intended to do is to register a New Trade Union from among the Claimants in favour of the Splinter groups all in in the name of ‘Re-Grouping’ the Claimant in accordance with the Power vested on them by the Trade Union Act.

That the intended re-grouping of the Claimant by registering a New trade Union was to solve the perceived problems and challenges the Spinster Groups are facing.
That I know as a fact that the Union which the 1^st and 2^nd Defendants proposed to register through the said re-grouping is the one seeking the same interest as the Claimant.
That I know as a fact that registering another Union from the Claimant as is been proposed will throw the Claimant into total confusion, and it will not be in the interest of public order and good government.”

The reliefs being sought have been reproduced in the earlier part of this judgment, therefore there is need not to be reproduced them again.

The reliefs being sought in this suit are predicated on sections 3(2) and 5(4) of the Trade Unions act. The content of the law has been reproduced above in the argument of counsel for both parties and need not be reproduced again.

However, it suffice to state that giving the provisions of the law a global view i.e to say an interpretation that holistically construe the provisions of the law under consideration will show that there are rights and obligations conferred by the law to both the claimants and the defendants.

The sections clearly allows receipt of application for registration of new trade union or request for re-grouping of existing trade union. It is also without any doubt that it is the law that conferred on the 1^st and 2^nd defendants the right to receive and process application for registration and regrouping of trade union. This function can only be performed by the Minister and the Registrar of Trade Unions i.e 1^st and 2^nd defendants and no other person or body can perform such function. If the declaration being sought by the claimant are granted that will impede and encumber on the statutory function imposed by law on the 1^st and 2^nd defendants.

It is also without any doubt that the deposition in affidavit in support of the originating summons clearly shows that the 1^st and 2^nd defendants have not performed their functions in respect of the alleged registration or regrouping of the claimant. The facts as disclosed in the affidavit in support of the originating summons only speculated on what the 1^st and 2^nddefendants’might do. There is no certainty of what the 1^stand 2^nd defendant would do regarding the application for new trade union or regrouping. The affidavit evidence did not conclusively establish that the 1^st and 2^nd defendants have taken or decided on the application for the purported regrouping or registrationwhich may impact on the claimant’s legal right or injured the legal right.

All that has been put up by the claimant in the affidavit is no more than conjecture, imagination and speculations. Court of law areenjoined to always not to engage in guess work. Court are for serious business they deal with live issues not academic or speculations. A judge is to restrain from deciding issues in a case or the whole case if his effort will amount to academic exercise. Court is to expend valuable judicial time to determine live issues and not moot issues. In a long line of cases it has been said over and over again that courts are constituted to determine live issues and not to engage in academic exercise. See OYENEYE V OGUGBESAN (1972) 4 SC 244, ADELAJA & ORS. V ALADE & ANOR.(1999) 6 NWLR (PT.608) 544, BAMGBOYE V UNILORIN (1999) 10 NWLR (Pt.622) 290.

It is therefore clear that the claimant has not disclosed reasonable cause of action against the defendants in this case as the claimant has failed to show wrongful act of the defendant that impact or will impact on the claimant’s legal right. It is also to be noted that legal right alone cannot yield to an enforceable right. There must be factual situation to support the claim on the legal right.

It is to be noted that the law is well settled that exercise of statutory function or lawful enjoyment of a legal right cannot be stopped by way of injunction. See AKIBU V ODUTAN (1991) 6 SCNJ 34.

In the case at hand the claimant has not shown that the 1^st and 2^nd defendants have no power to receive application for registration of trade union or that of request for reorganization. It has not also been shown that the 1^st and 2^nd defendants have failed or neglected to exercise their statutory power. Rather what the claimant is seeking is to stop the 1^st and 2^nd defendant from performing their statutory function. In the circumstance I agree with the counsel for the defendants that this suit has not disclosed reasonable cause of action and is therefore pre-mature.

This finding is enough to dispose of this suit. But, I shall proceed to determine the merit of the originating summons, so that if there is appeal the court of appeal will have the benefit of knowing the mind of the court on the substantive matter.

It is beyond any doubt that a claimant succeeds or falls in respect of declaratory relief on the strength of his own case. By law, a claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the defendant. See OKEREKE V UMAHI & ORS.[2016] LPELR-40035(SC) and NYESOM V PETERSIDE & ORS.[2016] LPELR-40036(SC); and a declaratory relief is never granted on the basis of admission or default of pleading. See BULET INTERNATIONAL NIG. LTD V DR. OMONIKE OLANIYI& ANOR. [2017] Vol 6 – 12 MJSC (Pt. III) 6. The vital question to be answered is has the claimant in this suit been able to by the affidavit averred facts that are cogent and credible in proof of the claims before the court.

The claimant placed heavy reliance on exhibit A to show that there is plan by the 3^rd defendant to procure registration of a new union or have the claimant regrouped by the 1^st and 2^nd defendants. However, the said exhibit ‘A’ being relied by the claimant is a photocopy of the original document. The claimant has not produced the original of exhibit ‘A’ for inspection of the court as required by law and has not told this court what happened to the original. Having not produce the original of exhibit ‘A’ as required by law the claimant has kept the court in the dark regarding the whereabouts of the originals of theexhibit.

It is to be remembered that this suit was commenced vide originating summons and Order 3 Rules 1(1) (b) and 3, of the National Industrial Court of Nigeria Rules 2017, which requires affidavit evidence and exhibits attached thereto in proof.

Having regard to the reliefs being sought before the court i.e declaratory and injunctive reliefs, the claimant has to succeeds or fails on the strength of his case and not on weakness of the defence or admission.

It must be borne in mind that the purpose of a declaratory relief sought from court is essentially an equitable relief in which the party asking for it prays the court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernible from the averments in the deposition. A discretionary relief is not confined to cases where there is a complete or subsisting cause of action, but may be employed in all cases where the claimant conceives he has a right. See ADIGUN V AG OYO STATE NO.1, (1987) 1 NWLR (PT.53) 678, IGBOKWE V UDOFIA 1992 3 NWLR PT.228 214, ANTATA V MOHAMMED 2007 7 NWLR PT.664 176.However, It must also be remembered that when a declaratory relief is sought, it is to make the court declare as established a legal and factual state of affairs in respect of the cause of action. Thus, the court will not readily without good, cogent, credible and sufficient materials/evidence exercise its discretion to grant a declaratory relief or order. Thus, why declaratory relief cannot be granted without cogent and compelling evidence even where the defendant expressly admits liability in the pleadings.See A-G CROSS RIVERS STATE V AG FEDERATION (2005) 6 SCNJ 152, OGOLO V OGOLO (2006) 2 SCNJ 235.

Given the state of the law in cases where declaratory and injunctive reliefs are sought, as in the present case, and the fact that the defendants did file counter-affidavit to contradict or controvert the facts deposed to in the affidavit in support to challenge the position of the claimant, the claimant is under an obligation to satisfy the court by cogent and reliable evidence in proof of the reliefs. See AGBAJE V FASHOLA & ORS. (2008) LPELR 3648 CA. The reason being that remedy of declaratory relief is not granted as a matter of course it must be based on a very strong and cogent evidence adduced in support of the claim. The claimant must satisfy the court under the circumstances that he is entitled to the relief. See NETWORK SECURITY LTD V DAHIRU (2008) ALL FWLR (PT.419) 4750.

At the risk of being repetitive, the vital question to be answered here is has the claimant in this suit been able to, by the affidavit evidence averred facts that are cogent and credible in proof of the claims before the court.

The affidavit in support of the originating summons has attached to it exhibits ‘A’ which the claimant placed heavy reliance on in seeking the reliefs before the court. The law is in no doubt settled that exhibit attached to affidavit evidence for use in an action commenced by originating summons must comply with the requirement of evidence Act on admissibility otherwise such exhibits have no value in the eyes of the law. In the case of THE KANO STATE HOUSE OF ASSEMBLY & ORS. V ALHAJI MUHAMMADU FALALU UMAR (2014) LPLER-24008 (CA), where the Court has this to say on issue of exhibits attached to affidavit in proof of substantive matter.

‘‘The law is that documents attached to affidavits and especially to originating summons where no oral evidence is taken must fully comply with the requirement of the Evidence law to be acted upon by the court. It makes no difference that same are only attached to the motion or the originating summons, in so far as they are intended to be acted upon by the court to determine any matter, they must meet the requirement of admissibility. Where such documents, as in the instant case, are by their nature public documents, they must be certified to be admissible in evidence and or be relied upon’’.

I must quickly add here that the issue of admissibility would have been different if the objection is at preliminary stage where an interlocutory application is being considered by the Court see NWOSU V IMO STATE ENVIRONMENTAL PROTECTION AGENCY (1990) 4 SCNJ 94, ADEJUMO GOVERNOR OF LAGOS STATE (1970 ALL NLR 183.

The exhibit attached to the affidavit in support of the originating summons being relied upon to establish the claims of the claimant before the court, is a photocopy of original and not original. The said exhibit ‘A’ not being original and no explanation as to where about of the original is not admissible in law. The court has a duty in law to reject inadmissible evidence this is arising from its duty to act only on legal evidence. See INTERNATIONAL BANK OF WEST AFRICA LTD V IMANO 2001 3 SCNJ 160,

Exhibit A being photocopy has no evidential value, I therefore reject it for not satisfying the requirement of admissibility under the evidence Act.

In view of the appraisal of exhibit ‘A’ attached to the affidavit in support, based on which the reliefs before the court are sought. It is without any doubt to say that the claimant has woefully failed in its duty of bringing before the court cogent and credible evidence that can sway the court to exercise its discretion in making declarations in favour of the claimant. The failure of the declaratory reliefs means failure of the injunctive reliefs, this is because court cannot make order based on speculation.

In the absence of cogent, compelling and admissible evidence the claimant’s action is therefore being laid on speculation and uncertainty, it must fail. As courts of law cannot rely or based their decision on speculation and uncertainty.

In view of my finding that exhibit ‘A’ attached to the affidavit in support of the originating summons not being admissible in law is hereby discountenanced. With this holding there is nothing before the Court to interpret as the court cannot engage in interpretation in vacuum as there are no basis or foundation on which the interpretation can be made since it is to declare right of the party it must have basis and the basis exhibit ‘A’ having been found to be in admissible the foundation has been knocked off from the bottom, as there are no factual situation to be used in interpreting the bare law which the claimant wants the court to interpret. Therefore, the claimant failed to prove the reliefs being sought from the court due lack of cogent, compelling and credible evidence to support the case of the claimant. This case therefore lacks merit, it has collapsed like pack of cards and deserved to be dismissed. The originating summons having not been backed up with credible and cogent evidence is hereby dismissed.

Judgment entered accordingly.

SanusiKado,

Judge.