COMRADE IKPONMWOSA ORHUE & ORS -VS- EDO STATE GOVERNMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE AKURE JUDICIAL DIVISION HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATE: 10TH JANUARY, 2019

SUIT NO: NICN/BEN/02/2018

BETWEEN

1. COMRADE IKPONMWOSA ORHUE (THE EDO STATE BRANCH CHAIRMAN OF NATIONAL BUTCHERS UNION OF NIGERIA)

2. THE INCORPORATED TRUSTEES OF THE NATIONAL BUTCHERS UNION OF NIGERIA

CLAIMANTS

AND

1. EDO STATE GOVERNMENT

2. TAIWO AKERELE (CHIEF OF STAFF TO THE GOVERNOR OF EDO STATE)

3.AKHERE PAUL ODIJIE

4.ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, EDO STATE

DEFENDANTS

REPRESENTAION

S.E. Ezenwa for the claimants

B.F. Omage- Dimowo Principal Legal Officer, Ministry of Justice Edo State for the 1st, 2nd and 4th defendants.

Solomon Igbirinere for the 3rd defendant

JUDGMENT

The claimant instituted this action by way of an Originating Summons filed on 26th January, 2018 for the determination of the following questions:

1. Having regard to the Registered Constitution of the 2nd claimant particularly Article 7 Section 4 sub-section B paragraphs 9 and 10, whether the 1st, 2nd and 4th defendants have the power to give recognition to the 3rd defendant who is not the elected Chairman as the bonafide Chairman of Edo State Branch of National Butchers Union of Nigeria.

2. Whether in view of Article 7 Section 4 subsection B paragraphs 9 and 10 and Article 7 Section 26 Subsection 1 of the 2nd claimant’s Constitution, the 1st, 2nd and 4th defendants have the powers to impose the 3rd defendant herein or any person of their choice on the claimants as the Edo State Chairman of National Butchers Union of Nigeria.

3. Whether the letter emanating from the office of the 2nd defendant dated 7th day of December, 2017 on behalf of the 1st defendant given recognition to the 3rd defendant as the Edo State Chairman of National Builders (Sic) Union of Nigeria is illegal and ultra vires of the powers of the 1st, 2nd and 4th defendants and against the spirit and intendment of the Registered Constitution of the National Butchers Union of Nigeria.

WHEREOF the claimants pray the court for the following reliefs:

1. A Declaration that the 1st, 2nd and 4th defendants have no power to give recognition to the 3rd defendant as the Edo State Branch Chairman of National Butchers Union of Nigeria in view of the fact that the 3rd defendant is not the elected Chairman of Edo State Chapter of National Butchers Union of Nigeria and as such the recognition is null and void.

2. A Declaration that the letter dated 7th day of December, 2017 emanating from the office of the 2nd defendant on behalf of the 1st defendant and in favour of the 3rd defendant is ultra vires, the powers of the 1st, 2nd and 4th defendants and therefore null and void and of no effects.

3. A Declaration that the 3rd defendant not being the elected Chairman of Edo State Chapter of the National Butchers Union of Nigeria cannot be accorded recognition by the 1st, 2nd and 4th defendants as the bonafide Chairman of Edo State Branch of National Butchers Union of Nigeria.

4. An Order of perpetual injunction restraining the 1st, 2nd and 4th defendants whether by themselves, privies, servants, agents, successors-in-office or anyone connected to them in any manner whatsoever and however from imposing the 3rd defendant or any other person(s) on the claimants as the Chairman of Edo State Branch of National Butchers Union of Nigeria and/or from interfering with the activities of the claimants in the state or concerning the appointments or elections of officers of the Edo State Branch of National Butchers Union of Nigeria.

5. An Order of perpetual injunction restraining the 3rd defendant whether by himself, agents, servants, privies, representatives or anybody connected to him in any manner whatsoever and howsoever from parading himself or presenting himself in any manner whatsoever and howsoever as the Chairman, Edo State Branch of National Butchers Union of Nigeria.

In support of their Originating Summons is a 44 paragraph affidavit deposed to by one Comrade Ikponmwonsa the 1st claimant wherein he stated on oath that he was the Deputy State Chairman to one Bright Ojo in year 2012 who was elected as Edo State Branch Chairman of the 2nd claimant. That in year 2013, the said Bright Ojo was suspended by the Union owing to acts of misconduct and that he was consequently appointed by the National body in accordance with the Union Constitution to take over from him on acting capacity to complete the three years tenure(15th June, 2012 – 15th June, 2015) and was presented to the former Governor of Edo State during a courtesy visit and that the Governor through the Ministry of Agriculture and National Resources gave a recognition to him as the State Chairman in a letter dated 22nd of October, 2013. That at the expiration of the said tenure, an election was conducted in August, 2015 which he won as the substantive Branch Chairman for a tenure of three (3) years starting from August 2015 to August, 2018. He stated further that the 3rd defendant was appointed as Taskforce Chairman for three (3) months tenure from 1st day of August, 2017 to 31st November, 2017, owing to the attempt or information reaching them that certain persons were planning to be killing unwholesome animals for commercial purpose, to checkmate such attempt. That consequent upon the appointment, the 3rd defendant started parading and presenting himself to the government officials as the substantive Edo State Branch Chairman of the union and that his (1st claimant) attention was drawn by the National President and a member of the 2nd claimant to a letter dated 7th December, 2017 addressed by the 2nd defendant on behalf of 1st defendant that the 3rd defendant is the government recognized bonafide Chairman of Edo State Branch of the union. That there is no letter from the National Body informing the State Government that the 3rd defendant is the elected or appointed Branch Chairman as it is the duty of the Union to elect or appoint a State Branch Chairman. That the Union legal Adviser was directed to reply the 1st, 2nd and 4th defendants the said letter, which was done through a letter dated 27th December, 2017 explaining the process under which a State Chairman can emerge but no response to the letter up till now.

He stated that the action of the 1st, 2nd, and 4th defendants through their letter amount to imposing a person on the Union and usurpation of the powers of the Union and the National President, that the Constitution subscribed to by all the members of the Union has always been the guiding rules for all officers and members of the Union and that the 2nd defendant that originated the said letter dated 7th December, 2017 is not a member of the Union.

In support of the Originating summons and supporting affidavit, the claimants filed a written address on 26th January, 2018 wherein the following issues/questions are raised for determination, viz:

3. Whether the letter emanating from the office of the 2nd defendant dated 7th day of December, 2017 on behalf of the 1st defendant given recognition to the 3rd defendant as the Edo State Chairman of National Builders Union of Nigeria is illegal and ultra vires of the powers of the 1st, 2nd and 4th defendants and against the spirit and intendment of the Registered Constitution of the National Butchers Union of Nigeria.

The learned claimant’s counsel argued issues 1 and 2 together and submitted that the claimants has its Constitution that clearly stipulate the way and manner executive position of its Union can be constituted and placed reliance on Article 7 Sub B (9) – (10) and Sub 26 sub-section 1 of the Constitution of the National Butchers’ Union. Counsel went on to submit that where the words used in the interpretation of statute are plain and unambiguous, such must be given their plain, ordinary and literal meanings as the Court was referred to the cases of Amasike v. The Registrar General of CAC [2010] 13 NWLR (Pt. 1211) pg. 337 @ 346 R 9 and State v. Anibijuwon 11 [2009] 1 NWLR (pt. 1123) pg. 597 @ 602 R. 10. It is counsel’s further submission that where a statute has expressly provides for a particular method of performing a duty, such has to be complied with or followed strictly, reference was made to the case of Nnabude v. G.N. (GW/A) Ltd [2010] 15 NWLR (Pt. 1216) pg. 365 @ 370 and while relying on the case of S.E.C v. Kasunmu [2009] ALL FWLR (Pt. 475) 1684 @ p. 1706 paras E-G, counsel further submitted that it is trite law that in construction of a statutory provision where a statute mention specific things or persons, those not mentioned are not intended to be included. It is submitted that the butchers’ union of Edo State is a body under its national body and not under 1st defendant and has no power whatsoever to dictate or impose a Chairman on the State body without recourse to the claimant’s Constitution and that the act of the 1st defendant imposing 2nd defendant on the branch of the claimant amounts to a breach of its Constitutional provision and that where this situation arises, it behoves on the Court to examine the act complained of and compare it or them with the relevant statutory provision. The cases of Amasike v. Registrar General of CAC (supra) R 10 and R 14 was referred to. Finally, it is the submission of counsel that even in the interpretation of ambiguous provisions of statutes, the Court is bound to interpret same in a manner that will resonate with common sense as to make it realistically operative. Relying on the case of Onjedebelu v. Nwaner [2009] ALL FWLR (pt. 453) 1264 @ 1294 paras F-G, counsel urged the Court to resolve this issue in the claimants’ favour.

On issue three, it is the claimants’ counsel contention that having argued earlier that the Constitution of the National Butchers Union of Nigeria does not make any provision for any State Government to decide who will be the State Branch Chairman or give recognition to a person not being elected or appointed by the union, it is unlawful and illegal for a State Government to do so even when the tenure of the current Chairman is still running as that act amounts to imposition by a power outside the union, which is illegal and that this Court has the powers to declare the actions of the defendants null and void. The following cases were relied upon: A.G. Lagos State v. Eko Hotels Ltd &Anor [2006] LPELR 3161; A.G. Anambra State v. Okafor [1992] 2 NWLR (Pt. 224) p. 396, Ratios 3 & 5; Further submission is that the 3rd defendant who subscribed to the constitution of the union is bound to abide by the provisions of the constitution or decisions of the union or check out from the union and this is buttressed with the decision in the case of Akunwata Ogbogu Mbanefo v. Nwakibie Henry Molokwu &Ors [2008] LPELR – 3696.

In the circumstances, the Court was urged to resolve this issue in favour of the claimants and against the defendants and finally to grant the claimants their reliefs sought in this suit.

The 3rd defendant filed a 23 paragraph counter affidavit dated16th March, 2018 to the affidavit in support of Originating Summons, which he deposed to and stated that he is the recognized Chairman of Edo State Branch of the National Butchers Union of Nigeria as surrogative tenure of the 1st claimant has ended. That the 1st claimant was imposed on him and other members of the union as the Chairman. He went on to state that on request of the Edo State Governor to settle and maintain peace after disagreement and tension caused by the high-handedness of the 1st and 2nd claimants in handling the affairs of the union, an election was duly conducted and that he was elected as the Chairman of the Union on the 1st day of December, 2017 and was presented to the Governor hence a letter (Exhibit D) of recognition was written to that effect by the 2nd defendant herein and that the 1st and 2nd claimants allowed the conduct of the election by creating a faction in the union, which is headed by the 1st claimant. He deposed that the procedure explained by Exhibit E is a ruse and not the usual convention of the union and that he is still the bonafide member of the union till date. He stated further that the reliefs sought by the claimants vide their originating summons are pre-mature and same be dismissed with cost.

In support of counter affidavit in opposition to Originating Summons, a written address was filed by the 3rd defendant and two issues were formulated for the determination of this court, viz:

1. Whether the reliefs of the claimants are grantable.

2. Whether the claimants are not enjoined to exhaust internal remedies as enshrined in the constitution of the union

On issue one, the 3rd defendant urged the Court to refuse the relief two of the claimants as he says by his affidavit that he was not elected but appointed to hold forth for the State chapter of the Union to complete the tenure of one Mr. Bright Ojo who was suspended which led to the conduct of election that brought him (3rd defendant) as the Chairman in line with the Union’s Constitution and that his position was accorded recognition by the trustees of the Union, that if the position was different, he would have had recourse to disciplinary actions under the union constitution (Exhibit F).

On issue two, it is submitted that the claimants did not exhaust any domestic remedies or avenues to amicably deliberate on the internal wrangling in the union before approaching the Court for reliefs, which is against the intendment of the Union’s Constitution as to Discipline and Punishment. Reference was made to pages 16 – 18 of the said Constitution. In light of this, the 3rd defendant submitted that the claimants have not complied with the provisions of the Union Constitution and as such, cannot take benefit of this Court jurisdiction to grant the reliefs sought, he referred the Court to the case of Eguamwense v. Amahizemwen [1993] 9 NWLR (Pt. 315) at page 1 and on this score, urged the Court to dismiss the reliefs of the claimants and make consequential order as to amicable settlement of the parties in dispute.

The 1st, 2nd and 4th defendants filed a 8 paragraph counter affidavit dated 27th March, 2018 to the originating summons which was deposed to by one Ezimah Mabel, a Litigation Secretary in the Department of Legal Drafting and Advisory Services, Ministry of Justice, Benin City, Edo State and stated she was informed on the 14th of March, 2018 by V.F. Omage-Dimowo (Mrs) in the above department, which she believes, she stated that the 3rd defendant is the recognized and duly elected Chairman of the Edo State Branch of the National Butchers Union of Nigeria, that the 1st claimant was forced on the Union by his appointment after the suspension of Bright Ojo, that there were a lot of complaints and disputes within the State after the 1st claimant’s appointment and subsequent purported election as a result of the mode of his appointment, which brought about a breach of peace and a breakdown of law and order and as a result, they visited the 1st defendant’s office and that the 1st defendant appointed the 3rd defendant as a Taskforce Chairman to regulate the killing of unwholesome animals and to forestall unhealthy practices within the State. That the 1st, 2nd and 4th defendants stated that the 3rd defendant and members of the Association informed them that an election had been duly conducted on the 1st of December, 2017 and that the 3rd defendant elected as the Chairman of the Union, that the 1st, 2nd and 4th defendants never appointed the 3rd defendant as Chairman of the Union but recognized it by virtue of his election as the Chairman, that they have no personal interest in this manner except to ensure that security and public health is guaranteed. She stated that paragraphs 21, 23, 25- 29 of the claimants’ affidavit are untrue, baseless and speculative and that it would be in the interest of justice and the people of Edo State if the reliefs sought by the claimants are refused.

The 1st, 2nd and 4th defendants, alongside the counter affidavit filed a written address on the 27th March, 2018 and raised three issues for the determination of this suit, which are:

1. Whether this Honourable Court has jurisdiction to hear this matter.

2. Whether the 1st, 2nd and 4th defendants can recognize the 3rd defendant as the Chairman of the National Union of Butchers Association, Edo State Chapter.

3. Whether this suit is one this court can determine by Originating Summons.

In addressing issue one, counsel to the 1st, 2nd and 4th defendants submitted that it is trite law that the issue of jurisdiction is very fundamental and elementary to adjudication as it has been variously described as the life blood of any adjudication, the fiat and the stamp of authority to adjudicate and that a court is competent to adjudicate its jurisdiction over a suit when: it is properly constituted as regards its members and qualifications of the members of the bench and no member is disqualified for one reason or another; the subject-matter of the case is within jurisdiction and there is no feature in the case that prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. The cases of Adesola v. Abidoye [2001] 2 WRN 39, [1999] 14 NWLR (Pt. 637) 28 at 52; Kaito v. CBN (1991) NSCC 736 at 751 – 752; [1991] 9 NWLR (Pt. 213) 126 at 149 and W.A.E.C v. Adeyanju [2008] 9 NWLR (Pt. 1092) 270 at 294, paras C-G were relied upon. Counsel submitted further that in the instant case, the defect in the jurisdiction of this Court arises out of the fact that the subject matter of this suit does not fall under that which this Court is empowered to adjudicate upon, again reliance was made to the case of Ufomba v. INEC (2017) 31 WRN 59 at 92, lines 15 – 45. Relying further on the cases of Conoil Plc v. Industrial Training Fund Governing Council &Anor [2013] LPELR-22472 and PDP & Anor v. Timipre Sylva &Ors [2012] LPELR-7814 SC, counsel submitted that in law it is the Originating process, which in this case, is the Originating Summons and the Affidavit in support that the Court examines to determine if it has jurisdiction and that a look at the questions the claimants are urging this Court to determine and the reliefs they are praying the Court to grant, suggests that the complaint bothers on the 1st, 2nd and 4th defendants’ (Government) action in recognizing the 3rd defendant as Chairman and that the depositions in the Affidavit and the reliefs being claimed does not suggest or show that this matter comes within any of the matters which this Court has jurisdiction to handle. Counsel referred to Section 254C (1) of the Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act, 2010 and Section 7(1) of the National Industrial Court Act 2006.

It is submitted further that the parties cannot import any issue into the proceedings to vest the Court with jurisdiction as jurisdiction cannot be determined by or upon the evaluation of evidence or upon viewing the response or Counter -Affidavit of the defendants and that the Court cannot look outside the initiating processes to determine the issue of jurisdiction. That in the instant case, the reliefs claimed do not disclose any intra party dispute or trade union issue for which this Court is asked to determine any question from the originating processes, the court is humbly urged to so hold as the cases of Ogundare v. Executive Governor of Lagos State [2017] 29 WRN 142 at 163 lines 5 – 10 and Ufomba v. INEC (supra) at p 87 – 88 lines 40 – 5 are commended to the Court. The Court is humbly urged to strike out this suit as it lacks jurisdiction to adjudicate on same as this is the proper order to make where the court finds that it lacks jurisdiction to determine a suit. See W.A.E.C v. Adeyanju (supra) at 296 paras C-D and Ngere v. Okuruket [2016] WRN 113 at p. 139 line 1.

On issue two, counsel argued that in the instant case, the 1st, 2nd and 4th defendants deposed to facts in their counter-affidavit which show that there is a threat to law and order by virtue of the activities of the claimants and that the public health of the people of Edo State is also at stake and that there was of necessity a need for Government to speak to the parties involved to ensure that peace is maintained in the State and also that the act of recognizing (not imposing as alluded to by the claimants), a duly elected Chairman of the Union presented to the 1st defendant by members of the 2nd claimants is in consonance with the need to ensure that security, law and order is maintained within the State. Relying on the case of Akunwata Ogbogu Mbanefo v. Nwakaibie Henry Molokwu & Ors [2014] LPELR-22257 (SC), counsel submitted further that since the 1st defendant can regulate the formation and provide guidelines for the Registration of Butchers Association, the act of recognizing a party as a Chairman after a duly conducted election is still in the spirit of ensuring that law and order is maintained in the State. Reliance was again placed on Section 168 of the Evidence Act, 2011 and the cases of Saleh v. Mohammed [2010] 12 NWLR (Pt. 1209) 613 at 630, paras F-H; Adighije v. Nwaogu [2010] 12 NWLR (Pt. 1209) 419, paras A-F and Maduabum v. Nwosu [2010] 13 NWLR (Pt. 1212) 623 at 661, paras A-F.

The Court was urged to hold that the act of the 1st, 2nd and 4th defendants being official acts were done rightly and regularly and also to hold that they can recognize the 3rd defendant as the Chairman of the National Union Butchers, Edo State Chapter

On issue three, 1st, 2nd and 4th defendants’ counsel posited that from the facts deposed to in the claimants’ affidavit, this suit is not one which this Court can decide by Originating Summons as the claimants cannot alleged that this is an intra-union dispute and at the same time commence this suit by an Originating Summons. It is argued further that the grouse of the claimants is against the 1st, 2nd and 4th defendants and the Affidavits deposed to by all the parties in this suit are conflicting widely and contentious which suggest that an Originating summons is not the proper mode for the issues in this suit to be properly decided. Reference was made to Ossai v. Wakwah & Ors [2006] LPELR-2813 SC; W.U.F.P.B.K v. Bala [2018] 2 WRN 160 at p 183 – 184 lines 45 – 20 and Eze v. UNIJOS [2017] 41 WRN 38 at 50 lines 20 – 40. In furtherance of this argument, it is the contention of counsel that it is trite law that in order to reconcile conflicting affidavits, a Court must resort to viva voce evidence instead of engaging in the abominable practice of picking and choosing which of the affidavit evidence to believe and that it is only in calling oral evidence that the justice of this case will be met and also that where facts in an affidavit are conflicting, the Court cannot make a finding of fact, in the instant case, it is posited that making a finding of fact is important as the Court will need to determine who is the elected Chairman of the Union. Ezeadukwa v. Maduka [1997] 8 NWLR (Pt 518) 635 at 664, paras G-H was relied upon.

Finally, the Court was urged to resolve the issues raised by the 1st, 2nd and 4th defendants in their favour and hold that this Court lacks jurisdiction to adjudicate in this suit and that if the Court however holds that it has jurisdiction, the 1st, 2nd and 4th defendants have argued in the alternative that they can recognize the 3rd defendant for the reasons stated in the counter affidavit and the submissions in the written address, hence the claimants’ reliefs should be refused as doing otherwise will not meet the justice of this case.

The claimants, on the 14th May, 2018 filed a 46 paragraph further affidavit in support of originating summons which was deposed to by one Chief Osamede Adun (JP), the President of National Butchers Union of Nigeria wherein he stated that paragraphs 4(b – n), 7 and 8 of the counter affidavit of the 1st, 2nd and 4th defendants is false to his knowledge and in response, he stated that the 1st, 2nd and 4th defendants were only using the relationship the 3rd defendant has with some members of the Edo State Government to destabilize the union in the State. He stated that nobody laid any complaint to the 1st, 2nd and 4th defendants in respect of any wrong doing in the affairs of the Union or in respect of the 1st claimant’s election and that the State branch of the union has no problem or disputes among its members let alone creating a breach of peace and breakdown of law and order in the State or anywhere and that there was no time the union seek the assistant of the 1st defendant to resolve any problem or visit its office to lament about any problem facing the union. It is deposed also that it is the union that appointed the 3rd defendant as Taskforce Chairman and not the 1st defendant as stated in paragraph 4(i) and (j) of the 1st, 2nd and 4th defendants’ counter affidavit, that he was the Taskforce Chairman up to 31st day of November, 2017. He went to state that it is the duty of the National President and Secretary to call for election whenever there is vacancy in any State Executive and not for the State Government to give recognition to a person not presented to it by the National President as the State Branch Chairman and that there was no election conducted in Edo State Branch of the Union in 2017 by which the 3rd defendant emerged as the State Branch Chairman. He stated that all through the period the 3rddefendant functioned as taskforce Chairman under the 1st claimant’s tenure, did not find any fault in the State Branch and that he did not lay any complaint to the National body or the State Branch as the union has internal mechanism through which it resolves its internal problem or dispute, but used the 1st and 2nd defendants to hijack the union in the State. He averred also that there is no faction in the Edo State Branch of the union except for the one created by 3rd defendant and contrary to the averment in paragraph 14 of the 3rd defendant’s counter affidavit, the 1st claimant is not a fractional head but the Chairman of the union in the State and that there is no issue to be resolve that the National body or the 2nd claimant will put machinery in place to resolve.

Finally, he stated that it is in the interest of justice to grant the claimants the reliefs sought.

Also filed alongside the further affidavit is a reply on point of law to the counter affidavit wherein the claimants argued that the 1st, 2nd and 4th defendants’ challenge of the jurisdiction of this Court is misconceivedand on the issue of jurisdiction of this Court to hear this case in terms of subject matter, they submitted that aside Section 254C(1) cited by the counsel to the 1st, 2nd and 4th defendants, there are other sub sections and paragraphs of the Constitution that clothed the National Industrial Court of Nigeria with jurisdiction to hear wide ranges of cases, they referred to Section 254C(j) and Order 3 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and thus, it is the interpretation of the National Butchers Union of Nigeria’s Constitution, vis-a-vis the letter of recognition given to the 3rd defendant by 1st and 2nd defendants that is submitted to this court to determine.

In regard to the view that the action of the 1st, 2nd and 4th defendants is based on the facts that the 3rd defendant told them that he is duly elected State Chairman of the National Butchers Union of Nigeria and in the interest of security in the State, the claimants argued that the argument of the counsel and all the authorities cited do not apply to the facts of this case, that assuming without conceding that there is issue of insecurity in the State occasioned by the claimants’ union, such information should come through the Security Services in the State to 1st and 2nd defendants and not through the 3rd defendant and that there is single police report before the court to suggest that there is a dispute in the union which is threatening the peace of the state. It is also contended that the defence of 1st, 2nd and 4th defendants is a mere ruse and fabricated story with a view to justify their plan.

On conflict of facts in Affidavit Evidence, the claimants submitted that the argument of 1st, 2nd and 4th defendants’ counsel in the event of conflict of facts is misconceived, that assuming without conceding that there is likelihood of conflict of facts, it is not substantial and that there are sufficient documentary evidence to resolve any conflict of facts in this case. They placed reliance on the following cases: Joseph Onuama & Ors v. Anthony Obasi & Ors [2010] LPELR-4371and Festus Keyamo v. House of Assembly, Lagos State &Ors [2002] LPELR 1689 (SC) and further submitted that for a proceedings to be regarded as hostile proceedings, there must be substantial dispute of facts and not that there will not be any dispute as to facts. Reliance is furthermore placed on the cases of Sanbell Investment Limited v. Emlo Holdings Limited & Ors [2014] LPELR 22991 (CA) and Okada Airlines Limited v. Federal Airport Authority of Nigeria [2014] LPELR – 23342 (CA). The claimants went on to contend that the arguments of the defendants that the 3rd defendant was elected on 1st day of December, 2017 is a ruse because as at that date, the tenure of the 1st claimant still subsist, that the 3rd defendant did not state the day the 1st claimant’s tenure ended and that he failed to prove that he was elected by credible evidence. Arguing further, the claimants stated that it is the law that where there is conflicting affidavit evidence, the Court can resolve same without calling for oral evidence where it has enough documentary evidence at its disposal, it can suo motu resolve the conflicting affidavit evidence by resorting to documentary evidence. The cases of Onogoruwa v. Adeniji [1993] 5 NWLR (Pt 293) 317 @ 347, paras A-C; Ezegbu v. FATB [1992] 1 NWLR (Pt. 220) 699 @ 720, paras A-B; Anammco v. First Marina Trust Ltd [2000] 1 NWLR (Pt. 640) 309 @ 316, para E and Okada Airlines Limited v. Federal Airport Authority of Nigeria (supra). Furthermore, they submitted that assuming without conceding that this action was wrongly commenced by Originating Summons, the proper order of court to be made in the circumstances is to order pleadings and not striking out or dismissal. (Order 3 Rule 17(2)).

In response to 3rd defendant’s written address, the claimants submitted that the argument of counsel did not appreciate the claimants’ position in this suit as it is their case that the 1st claimant completed the tenure of Bright Ojo in 2015 and subsequently in the same year, was elected as substantive Chairman of the State Branch of the Union for a period of three years which has not expire up till now. See Okada Airlines Limited v. Federal Airport Authority of Nigeria (supra).

On the issue of condition precedent, they submitted that the condition precedent the 3rd defendant is relying on envisage a situation where a member of the Union intend to institute an action against the Union and not where the Union want to institute action against a person who plotted coup d’état against the Union using forces outside the control of the Union like in the instant case and more so, that the 1st and 2nd defendants whose actions were the reason for instituting this action are not members of the Union and as such, they cannot be disciplined internally by the Union through its Constitution. They urged the court to disregard the defendants’ Counter Affidavit and the Written Addresses and grant the claimants their reliefs.

On the 12th of July, 2018, the Court whilst writing the judgment in this case, discovered that there is a need for parties to further address it on pertinent issues, specifically on whether or not Companies registered under Part C of CAMA and not under the Trade Union Act can ventilate their grievance in this Court and whether or not this suit qualifies as a Trade dispute for which this Court can adjudicate. The claimants on the 19th of June, filed a further written address wherein counsel on their behalf raised two issues for the Court’s determination;

Whether the National Industrial Court has the jurisdiction to hear and determine a suit filed by a body registered under Part C of the Company and Allied Matters Act.

Whether from the circumstances of this case, this suit qualify as intra union dispute.

One issue one, counsel submitted that from the questions submitted to the Court for determination in the claimant’s originating summons and the reliefs sought, the issue to determine by this Court is that of intra union dispute wherein the 3rd defendant, a member of the National Butchers Union of Nigeria abducted the powers and position of the 1st claimant using the support of the 1st, 2nd and 4th defendant and in which this Court is vested with powers to adjudicate vide Section 254(i)(j) of the 1999 Constitution as amended. He relied on the cases of Medical and Health Workers Union of Nigeria v Dr. Alfred Ehigiegba Appeal No CA/B/401/2013 Unreported delivered on the 4th day of June, 2018 by Frederick O. OHO JCA; Patrick Eze & Ors v Sergius Udeh & ors [2017 LPELR 42716 CA; Attorney General & Commissioner for Justice, Lagos State v The Registered Trustees of the Cattle Dealers Association Lagos State & Ors [2016] LPELR 40475 CA and urged the Court to so hold and resolve issue on in favour of the claimant.

On issue two, counsel posited that the main crux of this suit borders on inter union dispute as stated supra. He submitted however that in the unlikely event that this Court comes to the conclusion that it does not have the jurisdiction to hear and determine this suit, he urged that the suit be transferred to the Court which has jurisdiction in the regards pursuant to Section 24 of NICA 2006 and Order 62 Rule 1 of NIC Rules 2017. Counsel urged the Court to so hold.

The 1st, 2nd and 4th defendants filed their further written address on the 25th of September, 2018 wherein they framed two issues for the Court’s determination as follows;

Whether this matter is a Trade Dispute?

Whether the 2nd claimant having being registered under Part C of the Company and Allied Matters Act, 2004 can ventilate its grievance before this Honourable Court.

On issue one, counsel stated that from the facts of the case and the questions the claimants have submitted for determination before the Court, it is clear that this suit is not a trade dispute as it has nothing to do with employment or non-employment of employees, the term of employment or the physical conditions of the employment of workers as provided for under Section 48 of the Trade Dispute Act, 2004 and Section 54 of the National Industrial Court Act, 2006. He placed reliance on the case of Power Holding Co. of Nigeria Plc & Anor v Attorney General, Sokoto State & Anor [2014] LPELR 23825. He urged the Court to strike out the suit as it has no jurisdiction to hear same.

On issue two, counsel submitted that by Section 5(6) of the Trade Union Act, it is obvious that a trade union cannot operate as one unless it is registered under the Trade Union Act the Registrar of Trade Unions and a certificate issued to that effect. He stated that in the instant case, claimants exhibited a certificate of registration under Part C of Companies and Allied Matters Act and not under the Trade Union by the Registrar of Trade Union and as such, the 2nd claimant cannot enjoy the benefits of being one and also that the Court cannot assume jurisdiction over the 2nd claimant as Section 254C of the 1999 Constitution as amended, gives the Court jurisdiction over trade unions and not incorporated trustees. He urged the Court to decline jurisdiction.

The 3rd defendant on the 25th of September, 2018 filed a further written address where in counsel on his behalf framed two issues for the determination of the Court;

Whether the 2nd claimant the INCORPORATED TRUSTEES OF THE NATIONAL BUTCHERS UNION OF NIGERIA have requested our(sic) part C of CAMA Company and Allied Matters Act of 1990 has the legal power to institute this actions and whether the National Industrial Court has the jurisdiction to hear and determine a suit filed by a body registered under Part C of Company and Allied Matter Act, 1990 CAMA.

Whether from the circumstance of this case, the suit qualify as intra union dispute to empower this Court to have jurisdiction.

On issue one, counsel posited that the 2nd claimant is a union registered under Part C of the Company and Allied Matters Act and not a trade union and as such cannot institute an action in this Court as the Court by Section 254C of the 1999 Constitution as amended and Section 7 of the National Industrial Court Act supra does not have the jurisdiction to adjudicate on matter that falls under the Company and Allied Matter Act. He also stated that Section 45 of the Trade Union Act supra is clear to the effect that Company and Allied Matter Act shall not apply to any trade union and the registration of any such body under the Act shall be void. He urged the Court to decline jurisdiction on this regard.

On issue two, counsel submitted that the claimant’s action or claim is not a trade dispute rather it is a political wrangling or tussle for a leadership within the union. He stated that by virtue of Section 7(1) (a) of the National Industrial Court Act supra, it is clear that a registered trade union has the right to come before the Court to ventilate it grievance, however, since the 2nd claimant is not obviously a trade union, there is no intra union dispute. He urged the Court to so hold and dismiss this suit with substantive cost.

After a careful consideration of the originating summons, the accompanying processes filed in this suit by the claimants, the counter affidavit of the defendants and the written submissions and further arguments of all counsel, it is in the calm view of the Court that the issues germane for the court’s determination are;

Whether or not this Court is vested with the requisite adjudicatory powers to superintend over this suit and

If the answer to issue one is in the positive, whether the claimants are entitled to their prayers.

On issue one, it is the arguments of the 1st, 2nd and 4th defendants that this Court does not by virtue of Section 254C of the 1999 Constitution as amended and Section 7 of the National Industrial Court Act, 2006 has jurisdiction to adjudicate over this suit as a glance from the Originating processes discloses that the questions the claimants are urging this Court to determine and the reliefs they thereto suggests that the complaint bothers on the 1st, 2nd and 4th defendants’ (Government) action in recognizing the 3rd defendant as Chairman and that the depositions in the Affidavit and the reliefs being claimed does not suggest or show that this matter comes within any of the matters which this Court has jurisdiction to handle. The claimants on the other hand argued that the matter before the Court is within the jurisdiction of this Court to hear this case in terms of subject matter, that the case bothers on the interpretation of the National Butchers Union of Nigeria’s Constitution, vis-a-vis the letter of recognition given to the 3rd defendant by 1st and 2nd defendants that is submitted to this Court to determine.

At this Juncture, I must state that jurisdictional issues are fundamental that must be dispensed with to determine whether or not a Court is competent to superintend on any given matter. Jurisdiction can be raised at any stage in the cause of proceedings before Judgment is delivered, See the case of Ecobank Nig. Ltd v. Anchorage Leisures Ltd & Ors LER[2018]SC.407/2016. Yaki v. Bagudu [2015] 18 NWLR, (Pt. 1941) 288 at 298 ratio 6. As such it is in the interest and best administration of justice that where the issue is raised, it should be dealt with at the earliest opportunity, See, the cases of Gafar v., Government Kwara State [2007] 4 NWLLR (pt 1024) PG 375, Tukur v. Government of Gongola State [1989] 4 NWLR (PT 117) PG 517. In order to ascertain whether this Court possesses the requisite jurisdiction to entertain this suit, the Claimants Originating Summons and their Affidavit in support must be considered. See Adeyemi v. Opeyeri [1976]9-10SC 31. From the preponderance of documents before this Court, I have perused Claimants Originating Summons and their Affidavit in support and it is evident that the crux of the claimant’s claims bothers on the interpretation of Article 7 Section 4 sub section B paragraphs 9 and 10 and Article 7 Section 26 subsection 1 of the Constitution of the 2nd claimant vis-a-viz the appointment of the 3rd defendant by the 1st defendant vide a letter dated 7th December, 2017 as the bonafide Chairman of the National Butchers Union of Nigeria Edo State Chapter.

Now a germane question to ask is does this Court has the vires to determine this suit? This is in view of the fact that from a careful perusal of the documents before me the 2nd claimant by Exhibit G was registered under Part C of the Companies and Allied Matters Act on the 5th of November, 1988 as Incorporated Trustees. In answering this question, recourse is to be had to the provisions of Section 254C of the 1999 Constitution as amended supra and Section 7 of the National Industrial Court Act, 2006. By Section 254C (1)(a) of the 1999 Constitution as amended supra it provides that;

“(1) Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-

Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from work place, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;”

Also, by Section 254C (1) (j) (vi) of the 1999 Constitution as amended supra it provides that;

“relating to the determination of any question as to the interpretation and application of any-

(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour industrial relations or work place”

Section 7 (1) (a) (i) (iv) of the National Industrial Court Act, supra provides that;

“The Court shall have and exercise exclusive jurisdiction in civil cause and matters;

relating to

labour, including trade unions and industrial relations; and

(iv) any trade union Constitution,”

From the above cited provisions of the Constitution and the National Industrial Court Act, it is clear that this Court has to the exclusion of other Courts the jurisdiction to adjudicate on the issues bordering amongst others as succinctly provided for, on the issue of trade union and industrial relations. I so find and hold. Now it is claimants’ argument that the crux of this matter is one of an intra-union dispute, which is a trade dispute within a union and as such it activates the jurisdiction of the Court. The Defendants contrary to the submission of the claimant have posited that this suit is not within the contemplation of the jurisdiction of the Court by Section 254C of the 1999 Constitution as amended and Section 7 of the National Industrial Court Act, 2006 as the 2nd claimant is a Company registered under Part C of the Companies and Allied Matters Act. In juxtaposing the arguments of the parties in this suit, I will have to give a brief insight of the meaning of a Trade Union, Trade Dispute and Intra-union dispute. A trade union as defined by Section 1 of the Trade Union Act, cap T14, LFN, 2007 as “any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the term and condition of employment of workers, whether the combination in question would not, apart from this Act, be an unlawful combination by reason of any of these purposes being in restraint of trade, and whether its purpose do or do not include the provision of benefits for its members.” By Section 54 of the of the National Industrial Court Act, supra an intra-union dispute is defined as “means dispute within a trade unions or an employer’s association” Section 48 of the Trade Dispute Act, cap T8 LFN, 2007 provides that a Trade dispute “means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of works of any person”

From the above cited statutes, it is crystal clear that a trade union must be an organization of workers or employers to form an association with the same objectives and for the common good of the association, Also a Trade dispute on the other hand is any clash and or disagreement arising from the workers or employers of the association. This clash may be an intra-union dispute which is within the purview of the union or inter union, i.e. between the union and another union. Having said that an offshoot question to answer is can the said dispute as contemplated by the claimants be regarded as one of an intra-union dispute having regards to the fact that the 2nd claimant in this suit is not a registered trade union? I answer this question in the negative, this is in view of the fact that Section 45 of the Trade Union Act, supra provides that;

“The companies and Allied Matters Act shall not apply to any trade union or to any Federations of Trade Unions and the registration of anybody such under that Act shall be void”

It is clear that a Registered Body Corporate cannot function as a trade union and in the event it does, the act done shall be null and void. In the case of The Registered Trustees of the Forum of Federal Health Institutions Nurses and Midwives (FFHINNAM) v. National Association of Nigerian Nurses and Midwives unreported Suit No NICN/ABJ/20/2011 delivered on the 5th of June, 2012, the Court, per Hon. Justice Babatunde Adejumo, the Hon. PNIC, in answering whether or not the preliminary objection raised by the applicant has merits questioned whether or not this Court lacks the competence to adjudicate on the suit held thus;

“In answering this question, I will take the issue of whether or not using the phrase ‘incorporated trustee of as mandated by Section 591(1) (a) of CAMA. It provides thus;

Application under Section 596 of this Act shall be in the form prescribed by the Commission and shall state’

The name of the proposed corporate body which must contain the words ‘Incorporated Trustee of;

The key word in this provision is the word ‘must’ which governs the provision. Going by legal effect of must, it follows that since the word ‘must’ implies compulsion; any name of corporate body registered pursuant to Section 591 must contain those words.

However, that is not the end of the matter. Section 596 states the effects of registration; amongst others, these include investing the registered body with the power to sue and be sued. There is no disagreement between the parties that the claimant has been registered by the Corporate Affairs Commission. Ordinarily, one would have said that until the incorporated body is deregistered, all authorities must continue to give recognition accorded it by law, but Section 45 of the Trade Unions Act, cap T14, LFN, 2004 cast a big doubt on this. It provides that

The companies and Allied Matters Act shall not apply to any trade union or to any Federations of Trade Unions and the registration of anybody such under that Act shall be void

It is not in doubt that the respondent is set up with the sole aim of performing the functions of a trade union see paras 6 and 7 of the Statement of Facts which show clearly the objects of incorporating the respondent. When the words of a statute are clear and not contrary to the purpose of the statute, a Court of law is bound to give effect to it see Lawrence Okwueze v Emmanuel Ejiofor [2000] 15 NWLR (Pt 690) 389 at 410 paras D-E…. The registration of the respondent under CAMA is therefore declared null and void’ …”

It is clear from the foregoing, that since the subject matter of this suit is not covered by Section 254C (1) of the 1999 Constitution as amended and was not registered under the Trade Union Act but under part C of CAMA, it will amount to probing into the internal affairs of the 2nd claimant should this Court proceed with this matter. This Court will definitely be going outside its bounds or undertaking a futile exercise if it refuses to decline jurisdiction at this point. It is in consequence that I decline jurisdiction. I so find and hold.

It is the claimants further prayer that where this Court finds that it has no jurisdiction, it should transfer the case to the appropriate High Court clothe with jurisdiction. Cited in support is Section 24 of NICA 2006 and Order 62 Rule 1 of NIC Rules 2017. I find none of the defendants challenge or controvert this. The law is long settled that where a party who had the opportunity to challenge a contention or application fails to do so, such is deemed admitted and the Court is to act on same. See Osesa v. Tulip Cocoa Processing Ltd [2018] LPELR-45003CA. This Court has power by Section 24(2) of NICA 2006 and Order 62 Rule 1 of NIC Rules 2017 to transfer a case it has no vires to entertain to either the Federal High Court, States High Court or the High Court of the FCT. By Section 251(1)(e) of the 1999 Constitution, the Court that has jurisdiction over bodies registered under CAMA is the Federal High Court and not this Court as agreed by both parties. Having held that this Court has no jurisdiction to entertain this suit, the appropriate order to make in view of the claimants’ application in the circumstance, is to transfer this suit to the Federal High Court; it is therefore pursuant to Section 24(2) of the National Industrial Court Act 2006 and Order 62 Rule 1 of NIC rules 2017, that I transfer this suit to the Federal High Court Benin Division for trial. I so Order.

I make no award as to cost.

Hon Justice Oyewumi Oyebiola Oyejoju

Presiding Judge