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National Industrial Court

Ahmed M. Adama & 3 ORS -VS- Nigeria Union of Local Government

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N.  AGBAKOBA

 

DATED 13TH NOVEMBER, 2019                          SUIT NO.: NICN/ABJ/43/2016

 

IN THE MATTER OF TRADE UNION ACT.

 

BETWEEN:

  1. AHMEDM.ADAMU

Aspirant as Deputy President

2.ATURU KEHINDE

 Aspirant as Publicity Secretary                              CLAIMANTS/APPLICANTS

  1. OTUOZE RABI

Aspirant as State Trustee

  1. SULEIMAN ISMAILA

Aspirant as Treasurer

 

AND

  1. NIGERIA UNION OF LOCAL GOVERNMENT

EMPLOYEES (NULGE)

  1. IBRAHIM KHALEEL, National President of NULGE
  2. JOSHUA IRAPAKOR, General Secretary of NULGE
  3. THOMAS ABUTU, State President of NULDEDEFENDANTS/
  4. JACKSON G. NANYISO, State General Secretary of NULGE RESPONDENTS

(For themselves and on behalf of the State and

National Executive Council of the Union)

 

REPRESENTATION

  1. S. AKPALAandD. O. OJOTULE for the Claimants
  2. KADIRDirector, Ministry of Justice, Kogi State for the Defendants

 

JUDGEMENT

 

  1. The Claimants filed Originating Summons on 5th February, 2016 for the determination of the following questions:

 

  1. In view of the pendency of the Originating Summons instant before this Hon. Court between (1) AHMED M. ADAMU, aspirant as Deputy President (2) ATURU KEHINDE, aspirant as Publicity Secretary (3) OTUOZE RABI, aspirant as State Trustee, (4) SULEIMAN ISMAILA, aspirant as Treasurer AND (1) NIGERIA UNION OF LOCAL GOVERNMENT EMPLOYEES (NULGE), (2) THE NATIONAL PRESIDENT OF NULGE, (3) THE GENERAL SECRETARY OF (NULGE), (4) THE STATE PRESIDENT OF NULDE, KOGI STATE, (5) THE STATE GENERAL SECRETARY OF NULGE, KOGI STATE can the 1st 2nd 3rd and 4th Defendants conduct an election into the Kogi State Executive Council of the Union pursuant to the Form sold and intended to be used contrary to Form NDC/E1 in Rule 6(11)the 1985 Electoral Regulations.

 

  1. Whether the Defendants have any powers under the constitution of the Nigeria Union of Local Government Employees (NULGE) 2005 or the Electoral Regulations to sell Forms to aspirants.

 

  1. Whether there was a State Delegates conference held in the state in compliance with Rule 10(1) (c), (ix) and (x) of the constitution of Nigeria Union of Local Government Employees (NULGE) 2005 to nominate 7 delegates as required prior to the election stated for the 11th February 2016.

 

  1. Whether Kogi State has been zoned for the purposes of NULGE elections for some aspirants to be disqualified based on zoning been applied by the executives.

 

  1. Whether the constitution and the Electoral Regulating of the Union 2005 and 1985, makes provisions for payment for forms.

 

(B) GROUNDS FOR THE RELIEF SOUGHT

 

  1. The Claimants are bona-fide members of the Nigeria Union of Local Government Employees (NULGE), Kogi State Branch and as members of the State Branch of the Union, are entitled to aspire to any position in the Union as the case may be.

 

  1. The 2nd 3rd and 4th Defendants are the National President, the General Secretary, the Kogi State Branch President and Kogi State Branch General Secretary are sued for themselves and on behalf of the National Executive Council and the State Executive Council of the Nigeria Union of Local Government Employees (NULGE).

 

  1. The Claimants are aspirant into the various post indicated in Forms NDC/E1 purchased for the election scheduled for the 11th February, 2016 into the various posts in the State Executive Council of the Union.

 

  1. The President State Executive Council of the Union in Kogi State, is due to vacate office on the 261h April 2016, after their tenure.

 

  1. That sometime on the 10th of December 2015, the State Executive Council and / or in conjunction with National Executive Council of the Union started selling forms to aspirants vying for elective positions into the State Executive Council.

 

  1. That prior to these sales of forms, the Nigeria Labour Congress had called for a strike and same was in progress in Kogi State thereby making it impossible for all aspirants not to be aware of the sales of forms by the State Executive Council.

 

  1. That beside the State Executive Council and/or the National Executive Council not publishing the sales of forms in Kogi State, the Forms were sold in a manner that disenfranchised other aspirants from participating in seeking elective positions into the State Branch of the Union.

 

  1. That Nigeria Union of Local Government Employees has a Constitution and an Electoral Regulation which guides the operations of the Union.

 

  1. That in the process of obtaining forms, the aspirants were asked to pay for the forms which have never happened in previous elections except this one scheduled for the 11th February, 2016.

 

  1. That all effort made by the aspirants and/or claimants to ascertained the reasons for charging fees for the forms by the State Executive Council, fell on deaf ears

 

  1. That the Defendants only have powers under the constitution of the Union and the Electoral Relations on what are provided therein as conditions for obtaining forms and other processes.

 

  1. That the Electoral Regulations or the Constitution of the Union did not make any provisions for payments for forms as presently donned.

 

  1. That neither the Constitution of the Union nor the Electoral Regulations has been reviewed or amended to accommodate payments or fees for forms to be obtained by aspirants.
  2. That no State Delegates Conference was held in Kogi State in which 7 elected Local Branch Delegates are represented in compliance with Rule 1O(viii) (c) and (ix) of the Constitution.

 

  1. That the Constitution and the Electoral Regulations of the Union did not zone the State for purposes of elective positions into the State Executive Council.

 

  1. That some aspirants were deprived of vying for particular positions because the State Executive Council, claimed they were zoned.

 

  1. That all efforts made by the aspirants and for the claimants to dissuade the practice for payment for forms, zoning and holding elections without a State Delegates Conference held in compliance with the provisions of the Constitution, were not heeded to.

 

  1. If the answers to questions 1, 2, 3, 4, 5 and 6 above are negative, the claimants seek the following reliefs.

 

(C).             RELIEFS

 

  1. A DECLARATION that the redesigning of Form NDC/El as presently seen and sold to the claimants and I or aspirants without a prior amendment to the Electoral Regulations of the Union, is null, void and unconstitutional.

 

  1. A DECLARATION that the sale of Form NDC/El to the claimants and / or aspirants by the State Executive Council and / or the National Executive Council of the Union, is alien to the Constitution of the Union and offend against Rule 6 (ii, iii) of the Electoral Regulations of the Union.

 

  1. A DECLARATION that by virtue of Rule 6(u) of the Electoral Regulations of the Union, only a replica of the Form NDC / El attached at pages 8 — 9 of the Electoral Regulations can be used for Elections.

 

  1. A DECLARATION that no State Delegates Conference was held in Kogi State in 2015 or 2016, in which 7 elected Local Branch Delegates represented each Local Government Branch before the elections scheduled for the 1 1th February, 2016.

 

  1. A DECLARATION that the powers of the State Executive Council to conduct elections into the various offices under the watchful eyes of the National Executive Council must be done in compliance with the provisions of the constitution of the Union and the Electoral Regulations.

 

  1. A DECLARATION that at no time a National Congress of the Nigeria Union of Local Government Employees was held in which the Constitution and the Electoral Regulations of the Union was amended to give the State Executive Council and / or National Executive Council to redesign Form NDC/E1 as presently seen and to charge fees for Forms.

 

  1. AN ORDER of perpetual injunction restraining the defendants, their servants, privies and agents from conducting elections on the 1 1th February 2016, and thereafter with the redesigned Form NDC / El herein attached being a contravention of the Constitution and the Electoral Regulations of the Union.

 

  1. AN ORDER of mandatory injunction compelling the defendants to withdraw the redesigned form NDC/El from being used for the election on 11th February 2016, or thereafter but to use the Form NDC/E1 at pages 8 — 9 of the Electoral Regulations.

 

  1. AN ORDER setting aside the said Form, the payment of fees for being contrary to the provisions of the Constitution and the Electoral Regulations of the Union and an order to refund to the claimants all fees paid for Forms.

 

  1. AN ORDER setting aside all actions, decisions or any act of the Defendants already taken, which contravenes the provisions of the Constitution and the Electoral Regulations of the Union.

 

  1. AND for such order or further order(s) as the Hon. Court may deem fit to make in the circumstances of this case.

 

WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

 

The Claimants raised 4 issues

(a)   Whether the 2nd – 5th Defendants have power under the constitution and the Electoral Regulations of the 1st Defendants to that the redesigning of Form NDC/El as presently done, contrary to what is provided for at page 8 -9  of the Electoral Regulations.

 

(b)   Whether any State Delegates Conference was held in which 7 elected Local branch Delegates are represented in compliance with the 2005 Constitution.

 

(c)    Whether the Constitution of the Union makes provision for fees to be paid for obtaining forms or zoning for aspirants into the elected offices.

 

(d)   Whether the provisions of Rule 5(iii) and (b) of the Constitution of the Union is ultra vires the provisions of the 1999 Constitution of the Federal Republic of Nigeria.

 

  1. The 4th& 5th Defendants filed a 28 paragraph COUNTER AFFIDAVIT TO ORIGINATING SUMMONS on 13th April, 2016 and deposed to by Jackson Nanyso.

 

WRITTEN ADDRESS IN SUPPORT OF 4TH & 5TH COUNTER AFFIDAVIT

 

ISSUES

(1)   Whether the State Executive Council of the Union have not substantially complied with the stipulated format of the nomination form by the mere inscription “Kogi 2015 and the clearance column”.

 

(2)   Whether the State Delegates Conference held on 11th February, 2016 is not substantial enough for the conduct of election of the Union in Kogi State.

 

(3)   Whether the State Executive Council of the Union has power to impose or approve levy on members of the State Union by way of sale of Nomination Form.

 

(4)   Whether the provision of Rule 5(iii) (a) & (b) of the Union constitution is ultra vires the provision of the 1999 constitution of the Federal Republic of Nigeria, 1999 (As amended).

 

 

ON ISSUE 1

Whether the State Executive Council of the Union have not substantially complied with the stipulated format of the nomination form by the mere inscription “Kogi 2015 and the clearance column’’.

 

  1. The 4th and 5th Defence Counsel citing Rule 6 (ii) of the 1985 Electoral Regulations of the Union submitted that by mere addition of “Kogi 2015 and clearance column” without any form of omission as to the contents of nomination form, the State Executive Council of the union has substantially complied with the stipulated format of the nomination form. As all issues raised by the claimants are mere matters of technicalities relating only to form and not substance aimed at just faulting the already conducted election of the Union. My lord, there is nothing to show that the claimants were misled in any way.

 

ON ISSUE 2

Whether the State Delegates Conference held on 11th February, 2016 is not substantial enough for the conduct of election of the Union in Kogi State.

 

  1. The 4th and 5th Defence Counsel submitted that the Delegate’s Conference held on 11th February, 2016 is valid as same held in full compliance with the relevant Union Rules sufficient for the concluded election of the Union to stand. Rule 10(vii) (c) of the Constitution of Nigeria Union of Local Government Employees (NULGE) 2005.

 

ON ISSUE 3

Whether the State Executive Council of the Union has power to impose or approve levy on members of the State Union by way of sale of Nomination Form.

 

  1. The 4th and 5th Defence Counsel argued that on the strength of Rule 20(iii) of the NULGE Constitution 2005 and in the absence of any law prohibiting sale of nomination forms to members of the Union, that the State Executive Council of the Union has powers to impose or approve levy on members at the State Union by way of sale of nomination form.

 

ON ISSUE 4

Whether the provision of Rule 5(iii) (a) & (b) of the Union constitution is ultra vires the provision of the 1999 constitution of the Federal Republic of Nigeria, 1999 (As amended).

 

  1. It is the 4th and 5th Defence counsel’s contention that a closer look at Rule 5(iii)(a) & (b) of the NULGE Constitution and that of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, it is to this effect that it is not in conflict in any form and also, that it does not ultra vires the other rather the provision of the NULGE Constitution is mostly foundational toward exercising their fundamental human right.

 

 

  1. 5th Defendant/Respondent filed a 26 paragraph COUNTER AFFIDAVIT dated 30th March, 2016 and deposed to 5th Defendant.

 

WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT

 

ISSUE

Whether the applicants are entitled to the grant of this application.

 

  1. To the 5th Defendant, a careful perusal of the counter affidavit reveals that the act (i.e. the conduct of election) the claimants/applicants are seeking this Honourable Court to prevent has long been done and no court will knowingly act in vain. OKE v. MIMIKO (2013) ALL FWLR (pt. 693) p. 1853, at 1879, Para G.

He submitted that where a claimant alleges that the defendant’s acts are wrongful and in violation of his legal right and has sued the defendant, there is no law that prohibits the defendant from continuing the wrong not withstanding that there is a case against the defendant. TANIMOWO V. ODEWOYE (2008) ALL F.W.L.R (PT.424) P. 1513 AT P.1531, PARA C-E.Furthermore, that it is settled law that where an act is said to have been completed, the court cannot entertain an injunction to restrain such act. OKAFOR V. ATTORNEY GENERAL (1992) 2 S.C.NJ. at p. 235; UWAIFO V. GOVERNOR, LAGOS STATE (2008) ALL F.W.L.R. (PT. 417) P. 184 AT PP. 194-195, PARAS H-A; UDO V. I.T.C.M.E.C. (SUPRA) AT P. 106, PARAS C-D.

 

 

  1. The 4th and 5th defendants filed a NOTICE OF PRELIMINARY OBJECTION on 13th April, 2016 and supported by a 7 paragraph affidavit deposed to by Jackson Nanyiso, praying the Honourable Court for AN ORDER striking out this suit for lack of competence and/or jurisdiction.

 

4TH & 5TH DEFENDANTS’ WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION

 

ISSUE

Whether the Honourable Court has the jurisdictional competence to effectively determine this case; the Claimants having failed or omitted to make an appeal to higher organs of the Union a mandatory condition precedent to initiating the suit.

 

  1. Citing Rule 5 (iii) a & b of the Constitution of the Nigeria Union of Local Government Employees (NULGE), 2005, Learned Counsel to the 4th and 5th Defence posited that it is very clear and unambiguous that any aggrieved member of the Union must first and foremost makes appeal to higher organs of the Union before initiating legal action; and that this in no way ultra vires the fundamental human right to fair hearing as provided by the 1999 Constitution of the Federal Republic of Nigeria.He argued that the claimants having willfully subscribed to the constitution of the Union as members, they are therefore bound by the clear provisions of the Union’s constitution. And that for a Court to be competent to determine issues brought before it, there are conditions that must be fulfilled. LAFIA L.G vs. EXEC, GOVT NASARAWA STATE (2013) AU FWLR (Pt. 668) Ratio 6. Learned Defence Counsel posited that where words used in statutes are clear, the court is bound to give the words their ordinary meaning without resort to any internal or external aid. EGBELE v. POST MASTER GENERAL (2011) ratio 5.

 

  1. The Claimants filed an 11 paragraph FURTHER AFFIDAVIT IN SUPPORT OF THE ORIGINATING SUMMONS on 5th December, 2016 deposed to by Aturu Kehinde.

 

 

WRITTEN ADDRESS IN SUPPORT OF FURTHER AFFIDAVIT

 

ON ISSUE ONE AS RAISED: Whether the State Executive Council of the Union have not substantially complied with the stipulated format of the nomination form by the mere inscription “Kogi 2015 and Clearance Column”.

 

  1. Learned Counsel to the Claimant noted that the National Union of Local Government Employees has only one National Executive Council and one National Delegates Conference; and nothing subsist either in the 1985 Electoral Regulations or the 2005 Constitution of the Union mandating the Kogi State Executive Council to usurp the function of the National Executive Council outlined in the Electoral Regulations. Furthermore, to the submission of the 4th and 5th Defendants’ Counsel that: “Kogi 2015’ and ‘Clearance Column’ have not in any way altered the format of the nomination form, rather it give rooms for specification of the Branch of the Union and also to ensure that contestants who shall contest for the Union Electoral positions must be genuine members who are on clear financial standing with their Local Branches of the Union.”
  2. Claimant Counsel submitted that where a person has no capacity or authority to perform an act, anything done by such person is a nullity and avoid ab-initio. MACFOY Vs. U.A.C. (2000) 15 W.R.N. 185 at ratio 9 (P. 194) para 35 —40.Arguing that the Counsel to the 4th and Defendants who feels that the nomination Form NDC/E1 in the 1985 Electoral Regulations is too old, and hence, advised his clients to modify it without recourse to the National Executive Council for same to be done by Resolution, has done them a great disservice. SUBERU Vs. STATE (2010) 31 WRN I at ratio 12 (Pp. 25 — 26) lines 45 — 15, per Adekeye, JSC.The Claimant Counsel also noted that the simple question is, ‘’if the nomination form NDC/El — Exhibit ‘3’ meets the requirements of the Regulations, why would the Kogi State Executive Council add anything to it and claim substantial compliance?’’ Responding, he submitted that while they gave no any reason beside saying they did substantial compliance, the law is not looking for substantial compliance but strict adherence to the contents of Form ‘ NDC/E1 as contained in the Regulations. IKPE Vs. ELIJAH (2012) 8 W.R.N. 95 at ratio 5 (P. 103) lines 5 — 10, per Eko, JCA.

 

ON ISSUE TWO AS RAISED: Whether the State delegates Conference held on the 11/02/2016 is not substantial enough for the concluded election of the Union.

 

  1. It is Claimant Counsel’s submission that any purported election claimed to have been held on the 11/02/2016 after the service of court process and restraining order of this court is an exercise in futility, not backed by law, as it is the law that when an order to maintain the status quo ante bellum until the motion on notice is held and determined, no action can be done until the motion is heard. N.D.I.C. Vs. SAVANNAH BANK PLC (2002) 51 WRN 19 at ratio 9 (P. 71) line 20, per Musdapher, J.C.A.Noting, that, the provision of Rule 10(vii) of the Constitution used the word ‘shall’ which connotes a mandatory provision that must be adhered to. ONOCHIE Vs. ODOGWU (Supra) cited at paragraph 3.5 of their address in support of the originating summons.

 

ON ISSUE FOUR: Whether the provision of Rule 5(iii)(a) & (b) of the Union Constitution is ultra vires the provision of the 1999 Constitution of the Federal Republic of Nigeria.

 

  1. Claimant Counsel contended that the crux in the Constitution that: “Strict compliance to this provision shall be observed by all members of the Union”, contravenes the constitutional right of the Claimants to seek redress and thus, ultra vires constitution.

 

 

17.                   The 4th Defendant/Applicant filed a 23 paragraph FURTHER AFFIDAVIT IN SUPPORT OF PRELIMINARY OBJECTION on 27th March, 2017 and deposed to by him.

 

The 4TH & 5TH DEFENDANTS FILED A WRITTEN ADDRESS IN SUPPORT OF FURTHER AFFIDAVIT IN SUPPORT OF PRELIMINARY OBJECTION.

 

  1. It is counsel’s submission that Order 13 Rule 5(1/i) (a) & (b) of the constitution of NULGE 2005, which imposes obligation on the Claimants/Respondents to appeal to higher organs of the Union before initiating this action, does not contradict the constitution of the Federal Republic of Nigeria, 1999 (as amended), as it does not affect the right of the claimants to seek redress in court but same is a pre-action procedure necessary for the maintenance of the action. And that the observance of pre-action procedure before instituting an action is recognized by the rules of this Honourable Court, 2017. Order 3 Rule 23 Rule (1) & (2).

 

  1. It is counsel’s contention that the failure of the Claimants/Respondents to exhaust the statutory pre-action remedy provided in Rule 5 (iii) (a) & (b) of the constitution of NULGE, 2005 before having recourse to court in the instant case, has made this action premature and incompetent in the eye of the law. KASUNMU Vs. SHITIA -BEY 9(2007) ALL FWLR; PT. 356, P. 741 at 783, Paras B-E.Counsel to the 4th Defendant submitted that an action instituted without compliance with pre-action procedure or pre-conduction for initiating legal process as in the instant case is incompetent and the Honourable Court lacks jurisdiction to entertain same. DING YADI vs. INEC (2011) ALL FWLR PT. 581 P. 1426 at 1456 paras. F.G.He argued that the Claimants/Respondents in the instant case came to court in utter contravention of the provision of their union constitution 2005 (i.e. Rule 5(110 (a) & (b) which made it mandatory for them to appeal to higher organ of the union before initiating any legal process, consequent upon, which this suit has become incompetent and this Honourable Court lacks the jurisdiction to entertain same, urging the Court to strike it out accordingly. And that where a statute has prescribed the procedure for seeking remedy it must be corn plied with. CUNSIN NIGERIA LIMITED vs. L G.P (2008) AII FWLR [PT. 411] p. (959 at 968 paras D-E.It is 4th Defendant’s Counsel’s submission that where the law prescribes the mode for doing a thing only that method and no other must be adopted. MARWA vs. NYAKO (2012) PT. 622 P.1621 at 1715 para. B. Submitting also, that the Claimants/Respondents herein, having voluntarily subscribed to the constitution of NULGE, 2005 as members are bound by the entire provisions of the constitution including Rule 5(ii,)(a) & (b) under consideration; and thus, can’t approbate and reprobate at the same time. On the bindingness of the provisions of the union constitution on the Claimants/Respondents, counsel relied on MBANEFO vs. MOLOKWU (2010) All FWLR PT.512 P.1159 at 1179, paras E.G, per TSAMIYA, JCA.

 

  1. 4th Defendant filed a 32 paragraph FURTHER COUNTER AFFIDAVIT TO THE ORIGINATING SUMMONS on 27th March, 2017 deposed to by him.

 

WRITTEN ADDRESSS IN SUPPORT OF FURTHER COUNTER AFFIDAVIT

TO ORIGINATING SUMMONS

 

  1. Learned Counsel to the 4th Defendant submitted that the deliberate refusal of the learned counsel to look at Rule 10(vii) (a) & (C) together on the member of delegates from each branch is misleading; as the rule is that subsections of statutory provisions cannot be read in isolation. IWAKOJU vs. ADELEKE (2007) All FWLR PT. 353 p. 1 at 200 Paras B-C.He maintained that flowing from the combined reading of Rule 10(vii) (b)&(c) of the Union constitution, the lists of elected delegates from the local branches marked as Exhibits Kogi NULGE 4 (a-u) complied with the law, urging the Court to so hold.

 

 

  1. The Claimants filed a 10 paragraph FURTHER COUNTER AFFIDAVIT TO THE PRELIMINARY OBJECTION on 8th June, 2018 and deposed to by Aturu Kehinde.

 

WRITTEN ADDRESS IN SUPPORT OF THE FURTHER COUNTER AFFIDAVIT

 

ISSUE

The Applicants raised a sole issue to wit: whether the Hon. Court has the jurisdictional competence to effectively determine this case; the Claimants having failed of omitted to make an Appeal to Higher Organs of the Union, a mandatory condition precedent to initiating the suit.

 

  1. Learned Counsel to the Claimant  submitted that it is glaring from the deposition on record that the Applicants would want this Honourable Court to speculate over a fact they have no positive and conclusive evidence on and that the law frowns at the court to make such speculations. ISAH Vs. STATE (2006) 32 W.R.N. 57 at ratio 10, (P. 95) 35 — 5,per Augie, JCA.He noted that the word “shall” as used in the Statute or Rules of court connotes a mandatory provision that must be adhered to. ONOCHIE Vs. ODUGWO (2006) 17 W.R.N. 1, at ratio 11 (Pp. 34 — 35) lines 40 — 10, per Ogbuagu, JSC. Claimant Counsel contended that although Order 3 Rule 23(1 )(2) of this Honourable Court is clear on pre-.action notice, the combined reading and interpretation of Rule 5(iii)(a)(b) of the Union’s Constitution 2005 does not connote, represent, suggest that a higher body means a pre-action notice nor did the Applicants cite any clause, Section or provision in the 2005 Constitution of the Union which made a pre-action notice a statutory requirement before an aggrieved member can go to court and seek redress. Furthermore, that a careful perusal of the above provision contemplate where the action is ‘a breach of the provisions of the Constitution’. That it did not talk about breach of the provisions of the 1985 Electoral Regulations of the Union. He urged the Court to take a judicial notice of the processes filed by the Respondents in which a copy of the 1985 Electoral Regulations of the Union is attached by virtue of Section 122(2m) of the Evidence Act, 2011 as amended.

 

  1. Claimant Counsel posited that the doctrine of fair hearing as held in the case of AGBITI Vs. NIGERIAN NAVY (2001) 13 WRN I at ratio 14, is that: “The term fair hearing connotes the impression given to an ordinary reasonable person watching the proceedings. If he goes with the impression that the person has not been treated fairly then there is a breach of fair hearing. That in Nigerian Legal System, fair hearing is not a common law right but a constitutional right and that by virtue of Section 36(1) of the 1999 Constitution, the purport is that in the determination of the civil rights and obligations, a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law.

 

 

WRITTEN ADDRESS PURSUANT TO THE ORDER OF THE HONOURABLE COURT ON 11TH DAY OF FEBRUARY, 2019 AS TO WHETHER OR NOT SUIT NO: NICN/ABJ/176/2016 IS ONE AND THE SAME WITH SUIT NO: NICN/ABJ/43/2016 TO CONSTITUTE AN ABUSE OF COURT PROCESS filed on 25th February, 2019.

 

ISSUE

Whether Suit No: NICN/ABJ/176/2016 is one and the same as Suit No NICN/ABJ/43/2016 to constitute an abuse of judicial process.

 

  1. Counsel responding in the negative, submitted that the two cases are not one and the same to constitute an abuse of Court process as parties to SUIT NO: NICN/ABJ/43/2016 are not the same as parties to SUIT NO: NICN/ABJ/176/2016.

 

  1. He argued that the issue of parties to a case cannot be over emphasized as it is trite that no one who is not a party to litigation can benefit from the orders of court. HON. MARTIN OKONTA VS KINGSLEY NONYE PHILIPS & ORS (2011) ALL FWLR (Pt. 568) pg. 977 at 980-981 paras. G-A.It is counsel’s contention that the issue of failure to join a proper/a necessary party in the proceedings is a very fundamental one which affects the fundamental rights to fair hearing of a party. HON. MARTINS OKONTA VS. KINGLEY NONYE PHILIPS (Supra) at 981 Paras. AD.
  2. Counsel maintained that the cause of action and state of affairs as at when case was instituted in both cases differ from each other. That while Suit No: NICN/ABJ/43/2016 qualifies as a pre-election case in a failed attempt to stop the conduct of election, suit No: NICN/ABJ/176/2016 qualifies as a post-election case meant to stop unlawful interference with a democratically elected Kogi State Executive Council of NULGE. Suit No: NICN/ABJ/43/2016 is a Pre-election matter meant to stop the conduct of election to the various offices of NULGE, Kogi State and all the reliefs are to that effect. Furthermore, that the filing of two motions not seeking the same reliefs by a party is not an abuse of Court Process. AMOSUN v. I.N.E.C (2007) All FWLR part 391 p.1712 at 1741-1742 Paras G-B and D-F; at 1742 Para B-F.Counsel submitted that the law does not say that once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process, that is the position of the Supreme Court in P.D.P v. Umeh (No.1) (Supra) All FWLR at (291 Paras E- F), where the Supreme Court held thus:

“The Law does not say that once a party files another Suit before another Court on the same subject matter, there is abuse of Court Process.

A subject matter may give rise to different rights. In other words, different Suits can emanate from same subject matter but with different rights and reliefs. In the instants case, where the appeal of the appellants was based on judgement of lower Court ordering fresh election, the Supreme Court held that the other appeal challenging their exclusion from participation in the election did not constitute abuse of Court Process.”

 

 

WRITTEN ADDRESS ON ABUSE OF COURT PROCESS filed on 25th March, 2019.

 

ISSUE

Whether Suit No.: NICN/ABJ/I76/2016 is one and the same as Suit No.: NICN/ABJ/43/2016 to constitute an abuse of judicial process.

 

  1. Counsel argued that the acts of the 1st, 2nd 3rd 4th and 5th Defendants are tacit admission by them that they were aware of this Suit No.: NICN/ABJ/43/2016 subsisting before this Honourable Court to determine whether an election could be held without resolving the issues raised before the purported winners as seen in Suit No.: NICN/ABJ/176/2016 can have the capacity to sue. Thus, that it is an admission against the interest of the 4th and 5th Defendants as well as the 1st, 2nd and 3rd Defendants that this suit subsists in court. ODUTOLA Vs. PAPERSACK (NIG) LTD, (2007) 3 J.N.S.C. (Pt. 36) 533 at Ratio 9.He submitted that the concepts of abuse of Court process have been pronounced upon by several decisions of the superior courts including ABUBAKAR Vs. BEBEJI OIL & ALLIED . LTD. () 15 W.R.N. I at ratio 16 (Pp. 56 — 57) lines 45 15, per Ogbuagu, JSC; at pages (61 — 62), lines 45 — 5 of the above case, per Ogbuagu, JSC.Counsel submitted that the Claimants in Suit No.: NICN/ABJ/176/2016 cannot have any legitimacy where this Suit No.: NICN/ABJ/43/2016 is challenging the processes and documents to be used for the election of 11th February 2016, have not been proven to sustain the claim of the purported Claimants and giving a platform to stand on. As it is the law that you cannot put something on nothing and expects it to stand, it will collapse. MACFOY Vs. U.A.C. (2000) 15 WRN 185 at ratio 9 (P. 194) paras. 35—40; TAIWO Vs. AKINBOLAJI (2011) 9 W.R.N. 161 at ratio I (P. 171) lines 30 — 40, per Mshelie, JCA.

 

  1. Counsel posited that the 4th and 5thDefendants in this Suit No.: NICN/ABJ/43/2016 having made a choice of defending same, and being bound by the order of the Honourable Court, do not-have the capacity to conduct any election which could legally produce the 1st — 8th Claimants in Suit No.: NICN/ABJ/176/2016. Hence, that none of them can take any advantage in the suit for their wrongs. TERIBA Vs. ADEYEMO (2010) 47 W.R.N. 155 at ratio 4 (P. 175) line 45, per Tabai, JSC; GREEN Vs. GREEN (SUPRA) 45 W.R.N. 90 at ratio 11.

 

  1. Furthermore, that the 1st 2nd 3rd 4th and 5th Defendants in this Suit No.: NICN/ABJ/43/2016 cannot create the situation leading to their being made the 1st, 2nd and 3rd Defendants in Suit No.: NICN/ABJ/176/2016. AGWASIM Vs. OJICHIE (2004) 26 WRN I at 2 (P. 11) lines, 5 — 30, per Edozie, JSC.It is counsel’s submission that abuse of court process is not merely an irregularity that can be pardoned but constitute the fundamental defect. DINGYADI Vs. INEC (2011) 40 W.R.N. I at ratio 1 (Pp. 41 — 42) lines 15 — 25; per Fabiyi, JSC at (P. 66) lines. 10 — 15 (supra).Counsel argued that the status quo ante bellum subsisting when this suit was filed on the 5th February 2016 and an order made by the court on the 10th February, 2016 and served on the Defendants was that no election was conducted in which the Claimants in Suit No.: NICN/ABJ/I76/20I6 were elected. N.D.I.C. Vs. SAVANNAH BANK PLC (2002) 51 WRN 19 at ratio 9 (P. 71) line 20,per Musdapher, J.C.A.

 

  1. He contended that while the case of Amosun v. INEC (supra) at 1742 para. B — fis on filing two motions which don’t necessarily seek the same or similar reliefs , would not amount to abuse; it will constitute an abuse if it is coupled with an intention to harass, intimidate, irritate and annoy the Respondent and to interfere with the administration of justice.

 

  1. The grouse of the Claimant is that  they had been precluded from taking part in the elections due to inter alia the illegally imposed form fees with which they take stock, they also consider the 11th February 2015 Delegates Conferences unconstitutional querying the zoning principle as unconstitutional, arguing that the 2nd – 5th Defendants have no power under the constitution or the Electoral Regulations of the 1st Defendants to redesign Form NDC/El making the said form at variance with what is provided for at page 8 –9  of the Electoral Regulations.

 

  1. The claimant also posed the question whether the provisions of Rule 5(iii) and (b) of the Union Constitution is ultra vires the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
  2. To the 4th and 5th Defendants they merely added “Kogi 2015” and “clearance column” to the nomination form, and they argue that by so doing the State Executive Council of the union had substantially complied with the stipulated format of the nomination form Rule 6 (ii) of the 1985 Electoral Regulations of the Union. To the 4th and 5th Defendants all the issues raised by the claimants were technical relating only to form and not substance aimed at just faulting the already conducted election of the Union. Arguing that the claimants failed to show that they were misled in any way.

 

  1. To the 4th and 5th Defendants the Delegate’s Conference of 11th February, 2016 was held in full compliance with the relevant Union Rules sufficient for the concluded election of the Union to stand. Rule 10(vii) (c) of the Constitution of Nigeria Union of Local Government Employees (NULGE) 2005.

 

  1. To the 4th and 5th Defendants there is nothing in any law prohibiting sale of nomination forms to members and that the State Executive Council of the Union has powers to impose or approve levy on members of the Union Counsel; -Rule 20(iii) of the NULGE Constitution 2005.

 

 

  1. To the 4th and 5th Defendants, Rule 5(iii)(a) & (b) of the NULGE Constitution and section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, are not in conflict in any form and the other provisions of the NULGE Constitution are mostly foundational.

 

  1. The 5th Defendants contend that the election the claimants/applicants are seeking this Honourable Court to prevent has long been done and no court will knowingly act in vain. OKE v. MIMIKO (Supra) Arguing the even where the defendant’s acts are wrongful and in violation of the claimants’ legal right and such claimants have sued the defendant, that there is no law that prohibits the defendant from continuing the wrong not withstanding that there is a case against the defendant. TANIMOWO V. ODEWOYE (Supra). Furthermore, the court cannot restrain by injunction a complete act. OKAFOR V. ATTORNEY GENERAL (Supra) and two other authorities.

 

  1. To the 4th and 5th Defendant any aggrieved member of the Union must first and foremost makes appeal to higher organs of the Union before initiating legal action; Citing Rule 5 (iii) a & b of the Constitution of the Nigeria Union of Local Government Employees (NULGE), 2005, arguing that this is in no way ultra vires the fundamental human right to fair hearing as provided by the 1999 Constitution of the Federal Republic of Nigeria.

 

  1. Especially as the claimants as members are bound by provisions of the Union’s constitution. And that these conditions must be fulfilled for a Court to be competent to determine issues brought before it. LAFIA L.G vs. EXEC, GOVT NASARAWA STATE (Supra).

 

  1. The Claimants in their written address in support of their further affidavit in support of the originating summons of 5th December 2016 counter argued that the National Union of Local Government Employees has only one National Executive Council and one National Delegates Conference; and nothing in the 1985 Electoral Regulations or the 2005 Constitution of the Union mandate the Kogi State Executive Council to usurp the function of the National Executive Council outlined in the Electoral Regulations. and where a person has no capacity or authority to perform an act, anything done by such person is a nullity and avoid ab-initio. MACFOY Vs. U.A.C. (2000) 15 W.R.N. 185 at ratio 9 (P. 194) para 35 —40.Hence the Kogi State Executive Council are not empowered to modify the electoral form in any way whatsoever without recourse to the National Executive Council for a Resolution. Arguing that the law is not looking for substantial compliance but strict adherence to the contents of Form ‘ NDC/E1 as contained in the Regulations. IKPE Vs. ELIJAH (Supra).

 

  1. To the claimant any purported election, held on 11/02/2016, after the service of court process and restraining order of this court is not backed by law, as it is the law that when an order to maintain the status quo ante bellum until the motion on notice is determined, no action can be done until the motion is heard. N.D.I.C. Vs. SAVANNAH BANK PLC (Supra)

 

  1. To the Claimant noting the provision of Rule 10(vii) of the Constitution and the use of the word ‘shall’ which connotes a mandatoriness. And that Rule 5(iii)(a) & (b) of the Union Constitution is ultra vires the provision of the 1999 Constitution of the Federal Republic of Nigeria. And the requirement of “Strict compliance to this provision shall be observed by all members of the Union”, contravenes the constitutional right of the Claimants to seek redress and thus, ultra vires constitution.

 

  1. The 4th Defendant/Applicant filed a written address in support of their further affidavit in support of preliminary objection of 27th March, 2017. I find that these processes present a re-argument or at best a re-beautification of their argument in support of their counter affidavit and as such does not warrant any further address.

 

 

  1. The 4th Defendant in their FURTHER COUNTER AFFIDAVIT TO THE ORIGINATING SUMMONS on 27th March, 2017, argued that Rule 10(vii) (a) & (C) ought to be read together as the rule is that subsections of statutory provisions cannot be read in isolation. And that the lists of elected delegates from the local branches marked as Exhibits Kogi NULGE 4 (a-u) complied with the law.

 

  1. On the issue of failure to appeal to higher organs the claimants argued in their written address to their FURTHER COUNTER AFFIDAVIT TO THE PRELIMINARY OBJECTION of 8th June, 2018 that the combined reading and interpretation of Rule 5(iii)(a)(b) of the Union’s Constitution 2005 does not connote, a pre-action notice. Arguing further such interpretation amounts to a breach of the provisions of the Constitution.

 

  1. In response to the first question posed by the Court as to whether or not suit no: NICN/ABJ/176/2016 is one and the same with suit no: NICN/ABJ/43/2016 to constitute an abuse of court process the 4th defendant

WRITTEN ADDRESS PURSUANT TO THE ORDER OF THE HONOURABLE COURT ON 11TH DAY OF FEBRUARY, 2019 filed on 25th February, 2019.

 

ISSUE

Whether Suit No: NICN/ABJ/176/2016 is one and the same as Suit No NICN/ABJ/43/2016 to constitute an abuse of judicial process.

 

  1. Counsel to the 4th and 5th Defendant responded in the negative and submitted that the two cases are not one and the same to constitute an abuse of Court process as parties to SUIT NO: NICN/ABJ/43/2016 are not the same as parties to SUIT NO: NICN/ABJ/176/2016.He argued that the issue of parties to a case cannot be over emphasized as it is trite that no one who is not a party to litigation can benefit from the orders of court. HON. MARTIN OKONTA VS KINGSLEY NONYE PHILIPS & ORS (2011) ALL FWLR (Pt. 568) pg. 977 at 980-981 paras. G-A.It is counsel’s contention that the issue of failure to join a proper/a necessary party in the proceedings is a very fundamental one which affects the fundamental rights to fair hearing of a party. HON. MARTINS OKONTA VS. KINGLEY NONYE PHILIPS (Supra) at 981 Paras. AD. Maintaining that the cause of action and state of affairs as at when case was instituted in both cases differ from each other. That while Suit No: NICN/ABJ/43/2016 qualifies as a pre-election case in a failed attempt to stop the conduct of election, suit No: NICN/ABJ/176/2016 qualifies as a post-election case meant to stop unlawful interference with a democratically elected Kogi State Executive Council of NULGE. Suit No: NICN/ABJ/43/2016 is a Pre-election matter meant to stop the conduct of election to the various offices of NULGE, Kogi State and all the reliefs are to that effect. Furthermore, that the filing of two motions not seeking the same reliefs by a party is not an abuse of Court Process. AMOSUN v. I.N.E.C (2007) All FWLR part 391 p.1712 at 1741-1742 Paras G-B and D-F; at 1742 Para B-F.

 

  1. The 4th and 5th Defence Counsel submitted that the law does not say that once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process, that is the position of the Supreme Court in P.D.P v. Umeh (No.1) (Supra) All FWLR at (291 Paras E- F), where the Supreme Court held thus:

“The Law does not say that once a party files another Suit before another Court on the same subject matter, there is abuse of Court Process.

A subject matter may give rise to different rights. In other words, different Suits can emanate from same subject matter but with different rights and reliefs. In the instants case, where the appeal of the appellants was based on judgement of lower Court ordering fresh election, the Supreme Court held that the other appeal challenging their exclusion from participation in the election did not constitute abuse of Court Process.”

 

 

WRITTEN ADDRESS ON ABUSE OF COURT PROCESS filed on 25th March, 2019.

 

ISSUE

Whether Suit No.: NICN/ABJ/I76/2016 is one and the same as Suit No.: NICN/ABJ/43/2016 to constitute an abuse of judicial process.

 

  1. The Claimant Counsel argued that the acts of the 1st, 2nd 3rd 4th and 5th Defendants are tacit admission by them that they were aware of this Suit No.: NICN/ABJ/43/2016 subsisting before this Honourable Court to determine whether an election could be held without resolving the issues raised before the purported winners as seen in Suit No.: NICN/ABJ/176/2016 can have the capacity to sue. Thus, that it is an admission against the interest of the 4th and 5th Defendants as well as the 1st, 2nd and 3rd Defendants that this suit subsists in court. ODUTOLA Vs. PAPERSACK (NIG) LTD, (2007) 3 J.N.S.C. (Pt. 36) 533 at Ratio 9.He submitted that the concepts of abuse of Court process have been pronounced upon by several decisions of the superior courts including ABUBAKAR Vs. BEBEJI OIL & ALLIED PROD. LTD. (2008) 15 W.R.N. I at ratio 16 (Pp. 56 — 57) lines 45 15, per Ogbuagu, JSC; at pages (61 — 62), lines 45 — 5 of the above case, per Ogbuagu, JSC. Submitting that the Claimants in Suit No.: NICN/ABJ/176/2016 cannot have any legitimacy where this Suit No.: NICN/ABJ/43/2016 is challenging the processes and documents to be used for the election of 11th February 2016, have not been proven to sustain the claim of the purported Claimants and giving a platform to stand on. As it is the law that you cannot put something on nothing and expects it to stand, it will collapse. MACFOY Vs. U.A.C. (2000) 15 WRN 185 at ratio 9 (P. 194) paras. 35—40; TAIWO Vs. AKINBOLAJI (2011) 9 W.R.N. 161 at ratio I (P. 171) lines 30 — 40, per Mshelie, JCA.

 

  1. To the Claimant Counsel,  the 4th and 5thDefendants in this Suit No.: NICN/ABJ/43/2016 having made a choice of defending same, and being bound by the order of the Honourable Court, do not-have the capacity to conduct any election which could legally produce the 1st — 8th Claimants in Suit No.: NICN/ABJ/176/2016. Hence, that none of them can take any advantage in the suit for their wrongs. TERIBA Vs. ADEYEMO (2010) 47 W.R.N. 155 at ratio 4 (P. 175) line 45, per Tabai, JSC; GREEN Vs. GREEN (SUPRA) 45 W.R.N. 90 at ratio 11.Furthermore, that the 1st 2nd 3rd 4th and 5th Defendants in this Suit No.: NICN/ABJ/43/2016 cannot create the situation leading to their being made the 1st, 2nd and 3rd Defendants in Suit No.: NICN/ABJ/176/2016. AGWASIM Vs. OJICHIE (2004) 26 WRN I at 2 (P. 11) lines, 5 — 30, per Edozie, JSC.

 

  1. It is counsel’s submission that abuse of court process is not merely an irregularity that can be pardoned but constitute the fundamental defect. DINGYADI Vs. INEC (2011) 40 W.R.N. I at ratio 1 (Pp. 41 — 42) lines 15 — 25; per Fabiyi, JSC at (P. 66) lines. 10 — 15 (supra).Counsel argued that the status quo ante bellum subsisting when this suit was filed on the 5th February 2016 and an order made by the court on the 10th February, 2016 and served on the Defendants was that no election was conducted in which the Claimants in Suit No.: NICN/ABJ/I76/20I6 were elected. N.D.I.C. Vs. SAVANNAH BANK PLC (2002) 51 WRN 19 at ratio 9 (P. 71) line 20,per Musdapher, J.C.A.He contended that while the case of Amosun v. INEC (supra) at 1742 para. B — fis on filing two motions which don’t necessarily seek the same or similar reliefs , would not amount to abuse; it will constitute an abuse if it is coupled with an intention to harass, intimidate, irritate and annoy the Respondent and to interfere with the administration of justice.

 

Court’s Decision

 

  1. Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the Claimants application.

 

  1. The Claimants filed this suit by way of Originating Summons on 5th February, 2016 seeking 11 reliefs and also filed a written Address in support of the Origination Summons. The 4th& 5th Defendants filed a Counter Affidavit TO Originating Summons on 13th April, 2016 and a Written Address in Support of 4th & 5th Counter Affidavit. The 5th Defendant/Respondent filed a Counter Affidavit dated 30th March, 2016 and Written Address In Support of Counter Affidavit. The 4th and 5th defendants then filed a Notice of Preliminary Objection on 13th April, 2016.

 

  1. The Claimants filed an 11 paragraph Further Affidavit in support of the Originating Summons on 5th December, 2016 with a Written Address in support of Further Affidavit, The 4th Defendant/Applicant filed A Further Affidavit In support of Preliminary Objection on 27th March, 2017 and Written Address in Support Of Further Affidavit in support of Preliminary Objection. The 4th Defendant filed a Further Counter Affidavit to the Originating Summons on 27th March, 2017.

 

 

  1. The Claimants filed a 10 paragraph Further Counter Affidavit to the Preliminary Objection on 8th June, 2018.

 

  1. Now the rules of this court provide for the  filing of an OS and its accompanying processes, Affidavit in support and a written address,  the Respondent in response   files a counter affidavit and a written response thereafter the Applicant files a reply on point of law and if he finds the need to present additional facts before the Court he would then file a further affidavit. See Or3 r17, Or 15 r5.

 

  1. In the event that the defendant files a NPO the procedure is that document is accompanied by a written address and the claimant is required to file a Counter affidavit and written addresses. And the Objector is at liberty to file a Reply on Point of Law and a written address, Or19 r9, 10 and 11.

 

  1. These are the only processes supported by the rules of this Court.

Or5 r5 provides for departure from the rules on the application of parties  by way of motion, parties are also permitted to seek leave of Court to file of the processes not covered by the rules of Court. In the instant case neither party sought leave of court before filing their further counter and further affidavit to NPO.

 

  1. In the course of this matter the court had cause to direct address this court at two separate times on the following issues 1. WHETHER OR NOT SUIT NO: NICN/ABJ/176/2016 IS ONE AND THE SAME WITH SUIT NO: NICN/ABJ/43/2016 TO CONSTITUTE AN ABUSE OF COURT PROCESS and 2.whether there were still any live issue left in this matter and whether the suit had not become academic – as the law requires that Court’s hear from parties before resolving such  issue.

 

  1. In respect of the Preliminary Objection; – Whether the Honourable Court has the jurisdictional competence to effectively determine this case; the Claimants having failed or omitted to make an appeal to higher organs of the Union a mandatory condition precedent to initiating the suit.

 

  1. The Courts attention being drawn to Rule 5 (iii) a & b of the Constitution of the Nigeria Union of Local Government Employees (NULGE), 2005, which provides as follows; –

 

  1. 5. (iii).         No new Rules of the Constitution shall be made or any Rules altered, amended or rescinded unless agreed to by majority votes of members in secret ballot at the National Delegates Conference of the Union.

(a). Any member shall have the right to initiate action at his/her own expense in connection with any breach of the provisions of the Constitution subject to an appeal to higher organs of the Union before such an action could be initiated.

(b).  Grievance arising from the decision of the National Executive Council (NEC) or conduct of the National Delegates Conference (NDC)Should be reported to the National Executive Council (NEC) for adjudication before the aggrieved person can initiate any further action. Strict compliance to this provision shall be observed by all Members of the Union.

 

  1. I find that this provision do not rise to the level of a pre action notice which in law has expound in the following cases UGWUANYI V. NICON INS. PLC. (2013) 11 NWLR (PT. 1366) S.C. 546 @ 558 – 559thus; – Pre-action notices are recognized procedural provisions. They give a defendant time to enable the defendant determine whether or not to make reparation to the plaintiff. Also see UGWUANYI V. NICON INS. PLC. (2013) 11 NWLR (PT. 1366) S.C. 546 @ 558 – 559.
  2. Having said that I find that the dictum of Tukur JCA in GARBA v. NIGERIAN ARMY & ORS [2019 –[Court of Appeal] is most instructive and I quote “…It is however a settled principle of law, that where there exists a valid condition precedent to the institution of a matter, created by statue or contract, failure to fulfil the condition would mean that the Court is estopped from accommodating such litigant, and in fact is devoid of jurisdiction until the needful is done. The Apex Court in the case of YARDUA & ORS V. YANDOMA & ORS (SC.4/2014)(LPELR) (P. 105, PARAS. D-F), gave a nod to the above, where per Peter-Odili JSC held thus: “Where a statute or rules of Court prescribe a condition precedent to the assumption of jurisdiction, that condition precedent must first be fulfilled before there is jurisdiction. A case to the Appellant. For ease of understanding the point, Section 178 (1) and (3) of the Act are reproduced here under viz:- “178(1) if an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtained the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the forces council.” While Section 178 (3) further provides ‘subject to Subsection (1) of this Section, an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this section of this Act before embarking on any other action.” Now the basis for the preliminary objection filed by the Respondents against the claims of the Appellant in the lower Court was that the Appellant failed to must therefore come before the Court only when initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” See: ATIBA IYALAMU SAVINGS & LOANS LTD V. SUBERU & ANOR (2018) LPELR-44069(SC); BRONWEN ENERGY TRADING LTD V. CRESCENT AFRICA (GHANA) LTD (2018) LPELR-43796(CA); AND FCDA STAFF MULTI-PURPOSE (COOP) SOCIETY & ORS V. SAMCHI & ANOR (2018) LPELR-44380(CA). In the instant case and from the processes filed before the lower Court as disclosed in the record of appeal, it is not in doubt as found by the learned trial Judge that there was nothing before the lower Court to show that the voluntary retirement of the Appellant was accepted by the Respondents at the material time and that being the case, I share the views expressed by the learned trial Judge that the provisions of Section 178 of the Armed Forces Act applied exhaust the administrative remedies available to him before approaching the lower Court. On its part in its Ruling, the lower Court struck out the suit for being incompetent for failure to comply with the provisions of Section 178 of the Armed Forces Act. Now a cursory reading of the said provisions of Section 178 of the Act shows clearly that it is mandatory on any officer who has any complaint against any superior officer or authority to firstly lay his complaint to the appropriate officer or authority designated for the settlement of such complaint before embarking on any other action. Compliance with the said provisions of Section 178 of the Act is therefore a condition precedent to the assumption of jurisdiction by the lower Court. The right of the Appellant to sue the Respondents in this case is therefore dependent upon exhausting the internal administrative remedies available to him as an officer of the Armed Forces of the Federal Republic of Nigeria. See: ATOLAGBE & ANOR VS AWUNI & ORS (1997) LPELR 593 (SC); SHAKS VS CHIEF OF AIR STAFF & ANOR 2018 LPELR – 45277 (CA). Since the Appellant is subject to services law, Section 178 of the Armed Forces Act is in full effect and operates to rob the lower Court of jurisdiction until the administrative steps have been duly exhausted.” Per TUKUR, J.C.A. (Pp. 9-13, Paras. F-A.

 

  1. Looking at the wordings of Rule 5 (iii) a & b of the Constitution of the Nigeria Union of Local Government Employees (NULGE), 2005, I find that these provisions although not rising to the realm of a pre action notice I do make a finding of fact that these provision amount to specific internal remedies which parties are obligated by their constitution to exhaust before approaching court.

 

  1. Furthermore, these provisions are not in anyway, whatsoever, ultra vires the provisions of the 1999 Constitution of the Federal Republic of Nigeria. Bearing in mind that internal remedies just the same way pre action notices pend the court’s jurisdiction, the court’s jurisdiction cannot be activated unless such pre- conditions are met and fulfilled.

On Jurisdiction; – See FUGBARA JOHN & ORS v. SIR UCHE AMAECHI & ORS – (2016) LPELR-40982(CA).

 

  1. ALHAJI JIBRIN BALA HASSAN VS. DR. MUAZU BABANGIDA ALIU & OTHERS (2010) 11 SCM 69 at 93 E, per ONNOGHEN, JSC who said: ‘’It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision resulting therefrom.” Per IGE, J.C.A. (Pp. 24-25, Paras. E-A).

 

  1. SCOA NIG. PLC. & ANOR. V. METHODIST CHURCH & ANOR. (2016) 8 C.A.R. 204 @ 207Jurisdiction is generally a crucial and radical question. If a court lacks jurisdiction to determine a matter then all proceedings undertaken by the court becomes a nullity however well conducted. That makes jurisdiction a threshold matter. The apex court in the case of NDIC v. Central Bank of Nigeria (2002) LPELR – 2000 (SC) held thus:

“jurisdiction is the very basis on which any tribunal tries a case; it is lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this court; a fortiori the court can suo moto raise it” [P. 215, Paras. E-G].

 

  1. Bearing in mind the time honoured legal observation as to jurisdiction and the competence of a court; – put briefly, is as follows; “….. a court is competent when

(1)   it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(2)   the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and

(3)   the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

 

  1. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” Per Bairamian, F.J. (Pp. 16-17, paras. D-A)

 

  1. The law is that the Court’s jurisdiction is put in abeyance and until all the necessary steps prior to approaching court are observed, it is only on fulfillment of these condition that the jurisdiction of a Court can be properly evoked. So, the question of controverting or usurping or even prevention a litigant access to court. I find, in these circumstances does not exist. Iresolve this issue against the Claimant.
  2. The import of this finding is that the Claimants came to court prematurely, their argument as to the defendant acting in flagrant disregard to the Court processes I find cannot stand as they were not properly before the court. The famous case of UAC Vs. McFoy 1960 AC 1 readily comes to mind.

 

  1. Having made this determination all other issues become academic.

I am however aware of the Supreme Court Authority that requires Lower Court to resolve all issues, in the event that the Supervising Court does not uphold the Lower court’s finding.TRIOVERSAL DESIGN ASSOCIATES v. COMMISSIONER FOR HEALTH AND HUMAN SERVICES, YOBE STATE & ANOR2029 LPELR (CA)where it was held that  “The higher Courts have warned severally that where a Court is not the highest Court in the judiciary hierarchy, it is wrong for it to determine a matter on the strength of one of the issues canvassed before it by the parties, and to leave the other issues unresolved. It is incumbent on such a Court to, after resolving that issue, even if it is an issue jurisdiction, proceed to resolve all the other issues, so that where the higher Court disagrees with its decision on the issue, as in the instant case, it would have before it the benefit of the opinion of the Court on the other issues” – STOWE VS BEN-STOWE (2012) 9 NWLR (Pt 1306) 450 NATIONAL UNION OF ROAD TRANSPORT WORKERS VS ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA (2012) 10 NWLR (Pt 1307) 170, UNIVERSITY OF CALABAR VS AKINTUNDE (2013) 3 NWLR (Pt 1340) 1.

 

  1. On the issues raised by the court suo moto I am satisfied that this present suit is not the same as ABJ 175 and as such although, it is noted, that the two suits do in fact, dovetail, both suits could be properly handled in consolidation. By and large this suit cannot be considered as an abuse of ABJ 175 nor vice versa I find.

 

  1. With reference to the question as to the existence of live issues in this suit. I am not inclined to agree of any of the submissions raises by either of the parties. i shall evaluate this question with the other remaining issues.

 

  1. Starting with the sub issues of denial of participation; I find the claimant have not substantiated this fact to the satisfaction of this court neither have they as the defendants rightly pointed out shown the court how they suffered injury by the additions made to the said application form. Nor have they presented to this court any evidence prohibiting the defendants from raising money through or even selling forms simplicituer, nor have the defendants put forward any resolution of the branch wherein they were authorized to make the alterations and charge fees. Therefore, to make any pronouncement on them would be to make decision based on conjecture and speculations, same goes for the question of live issues.  I find and hold.

 

  1. It is trite that the subsistence of a court action even without the pronouncement of injunctive reliefs  requires that parties refrain from any action that would countermand the Court’s authority See MARINE & GENERAL ASSURANCE CO. LTD v. HON. MINISTER OF FINANCE & ORS(2018) LPELR-43518(CA)and I agree with the Claimant that after the service of court process and restraining order of this court ; -an order to maintain the status quo ante bellum until the motion on notice is determined, no action can be done until the motion is heard in that wise having served the defendants with Court processes the defendant ought not have proceeded with their action;  an election. The words status quo ante bellum, where examined in the case of ADOKI v. ROBINSON (2009) LPELR-3950(CA) and it was held reviewing decided case that “In the case of AKAPO VS HAKEEM-HABEEB (1992) 6 NWLR (247) 266 at 303 F – G. it was held per Nnaemeka-Agu, JSC that:” … The literal meaning of status quo ante bellum) is the state of affairs before the beginning of hostilities.” In the same case, Ogundare, JSC at page 311 C opined thus:- “It [status quo ante bellum} can only mean the situation prevailing before the defendants’ conduct complained of by the plaintiff.”The status quo to be maintained is the state of affairs at the time of filing the action as at is, at a stage when no further activity can be restrained. See: AYORINDE VS A.G. OYO STATE (1996) 3 NWLR (434) 20; OKAFOR VS A.G. 11992) 2 SCNJ 219; ADEWALE VS GOV. EKITI STATE (2007) 2 NWLR (10119) 634 at 658 F – G”PER Kekere-Ekun, J.C.A (Pp. 20-21, Paras G-C).

 

  1. In RT. HON. MICHAEL BALONWU & ORS -V- GOVERNOR OF ANAMBRA STATE & ORS (2008) LPELR – 4907 (CA) Bage JCA (as he then was) held on page 44 paragraphs E – F that:- “A decision or judgment of a Court of competent jurisdiction subsists until set aside by the Court itself or by a higher Court”. In the same authority cited in (2007) 5 NWLR {Pt. 1028} Page 488 at 564 – 565 paragraphs B – G per Denton-West JCA this Court held thus:- “An order of Court whether valid or not must be obeyed until it is set aside. An order of Court must be obeyed as long as it is subsisting by all no matter how lowly or lightly placed in the society. An act of disobedience towards an order of Court can render any further act by those who have acted disobediently to sanctions from other Courts because no Court would want its orders flouted. This is what the rule of law is all about hence the Courts have always stressed the need for obedience of Court orders. In the instant case, the Appellants, instead of obeying the order of a Court of competent jurisdiction went ahead with the process of removal of the 1st Respondent from office. Their failure to obey the mandatory order of Amaechi J. rendered the removal process invalid…”
  2. Now, had this matter been properly before this Court, ie if the case had come before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, this court would have been in a position to  evoke the provisions of Section 18 of NICA 2006 an injunction in lieu of quo warranto inter alia, which would have the effect of declaring that the occupant of a seat: – is wrongly occupying same and that that seat was in fact therefore vacant which would mean ordering fresh elections.
  3. All in all having found merit in the 4th and 5th Defendants NPO, I find that this matter is before this court prematurely and hence this suit is incompetent and struck out.

 

  1. This is the Courts judgment and it is hereby entered I make no order as to cost.

 

 

…………………….

Hon. Justice E. N. Agbakoba

Presiding Judge

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