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National Industrial Court

Comrade Ekwem Chinedu & 2 ORS -VS- Comrade Ibrahi Khaleel & 4 ORS

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  IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                                             IN THE OWERRI JUDICIAL DIVISION

                                                          HOLDEN AT OWERRI

DATE: 6TH FEBRUARY 2020                                   SUITNO: NICN/OW/66/2019

BETWEEN:

  1. COMRADE EKWEM CHINEDU
  2. COMRADE ONWUACHU HENRY                                                            CLAIMANTS/RESPONDENTS
  3. COMRADE UGHALA UZOAMAKA UGOEZI

AND

  1. COMRADE IBRAHIM KHALEEL

(for himself and as representing all the national

officers of the Nigerian union of local Government                          DEFENDANTS/RESPONDENTS

Employees (NULGE) whose tenure of office

commenced on 24/3/2015)                                              

  1. NIGERIAN UNION OF LOCAL GOVERNMENT

EMPLOYEES (NULGE)

  1. COMRADE CHUKWUEMEKE AGUONYE
  2. COMRADE VICTOR ADEBAYO
  3. COMRADE NANKPAK MIRI NJOMIR

(for himself and as representing the members of the National caretaker Committee of the Nigeria Union of Local Government Employees (NULGE)

 REPRESENTATION:

  • Chief E.O. Onyema for the Claimants/Respondents.
  • F.T Sotikare; Jimoh Balogun for the 1st to 3rd Defendants/Applicants.
  • G.C Okpala; U.B. Nwankwo for the 4th Defendant.
  • H. Iheanacho for the 5th Defendant.

RULING:

In this action, these Claimants/Respondents, who are allegedly members of the 2nd Defendant Union (NULGE), instituted this action here by way of originating summons, on 12/9/2019 questioning the length of the tenure of office of the 1st Defendant as National President along with the other National Officers of the said National Union of Local Government Employees which purportedly commenced on 24/3/2014, and the propriety of the elongation of the tenure of the officers of the union at all levels, from the constitutional four year term to six years and thus basically seek inter alia for a declaration that their tenure as national union officials, ended by effluxion of time on 24/3/2019 in accordance with the 2005/2016 NULGE Constitutions. They also seek for numerous other injunctive reliefs to restrain the Defendants/Applicants from further acting as and or parading and or holding out themselves as National Officers of NULGE and particularly from administering, controlling, managing or directing the administration, management and control of the affairs of the said union at the National, States and Local Branch levels. The 1st, 2nd and 3rd Defendants as applicants, upon filing their pleadings and other processes in their behalf, proceeded to file this preliminary application on 5/11/2019 urging and arguing that this suit is an abuse of judicial process inter alia being that the subject matter of this same suit is similar to that instituted against them in the Abuja division of this Court and therefore urging this Court to consider it proper to strike out this cause stemming from the pendency of the matter in the Abuja division in the interest of justice.

This suit was commenced by these Claimants/Respondents by way of an Originating Summons accompanied by a 34 paragraphed affidavit, a written address and other originating processes dated 9/09/2019 but filed on 12/09/2019. They seek the resolution of four questions which are summarized below thus:

  1. Whether having regard to the combined provisions of Rules 5, 21 and 24 of the NULGE Constitution 2016, and Rules 5, 13, 16, 17 and 29 of the NULGE 2005 Constitution, the tenure of office of persons elected at the National, States and Local Government levels is 4 years;
  2. Whether with regards to those provisions, the tenure of office of the 1st Defendant did not commence on 24/3/2015 and terminate on 24/3/2019;
  3. Whether with regards again to those provisions, any officer of the union at any level, has the power to hold office beyond the elected period of his term in office;
  4. Whether with respect to Section 29 of the Trade Unions Act and with respect to the above listed provisions, any person has the power to enlarge or elongate the tenure of office of the officers of the union at any of the levels beyond the four year constitutional term;

The Claimants ultimately seek for the grant of 8 declarative reliefs as summarized  hereunder:

  1. A declaration that in accordance with the relevant provisions of the NULGE Constitution, the tenure of the 1st Defendant along with his other officials, begun on 24/3/2015 and ended on 24/3/2019;
  2. A declaration that any resolution to elongate the tenure of office of the officials of the union from four to six years is unconstitutional;
  3. A declaration that no officer of the union at all the levels, is entitled to hold such offices beyond the period of four years as specified under its constitution;
  4. A declaration that having exhausted his four year tenure in office as National President on 24/3/2019, the 1st Defendant can no longer administer, manage or control the affairs of the union.
  5. A declaration that all actions taken on behalf of the union beyond 24/3/2019 be declared a nullity.
  6. A declaration that all actions taken by any officer at any level beyond their constitutional tenure in office, be nullified;
  7. An order of perpetual injunction restraining the Defendant from parading or holding themselves as National Officers of the union and from managing or controlling the affairs of the union in that regard; and
  8. An order of perpetual injunction restraining the other 2nd, 3rd, 4th and 5th Defendants from recognizing the 1st Defendant as the National President of NULGE.

Consequently, the Defendants/Applicants after filing their joint pleadings in response, also filed this preliminary objection on 05/11/2019 challenging this Court’s jurisdiction as well as the Claimants’/Respondents’ claims on the following grounds:

  1. The action constitutes a gross abuse of Court process and cannot therefore be entertained by this Court.
  2. There is already pending before the Abuja Division of this Honourable Court in suit No. NICN/ABJ/249/2019: — Nigerian Union of Local Government Employees (NULGE) & Ors v. Comrade Ibrahim Khaleel & Ors, filed on 20th day of August 2019 in which the Claimants in the suit are already seeking the same reliefs being sought before this Court.
  3. The parties, subject matter and reliefs sought in this suit as well as those claimed in Suit No. NICN/ABJ/249/2019 — Nigerian Union of Local Government Employees (NULGE) & Ors V. Comrade Ibrahim Khaleel & Ors, are essentially the same.
  4. The Claimants/Respondents are estopped from re-litigating in this suit, an issue that was decided by this Honourable Court in Suit No. NICN/OW/36/2018: Com. Uzoma Ekeanyanwu V. Richard Eze & ors (judgment delivered on 11/07/2019) relating to the tenure elongation in the Nigerian Union of Local Government Employees) (NULGE) pursuant to the Resolution of the Union dated 13/10/2016 and which is already the subject of appeal in suit No. CA/OW/281/2019.

ALTERNATIVELY

  1. Contend that this action as constituted is incompetent because the suit raises substantial disputes of facts and ought not to be commenced by Originating Summons as was done in this case.

 Additional grounds of objections raised by the 1st set of Defendants are as follows:

  1. The entire action raises disputed facts as to:
  2. Whether the process leading to the Resolution of the Nigerian Union of Local Government Employees (NULGE) made at Akure on 13th day of October 2016 followed the due process as set out in the reviewed Constitution of the Nigerian Union of Local Government Employees (NULGE) 2005 and in accordance with the provisions of the Trade Union Act.
  3. Whether in view of the facts and exhibits as put forward by the Claimants in the 34 paragraph Affidavit in support of the Originating Summons relating to the schedule and holding of the Congress of the Union on 13/10/2016 on the tenure elongation of the officers of the union and the Resolution duly passed, it is necessary to afford parties a fair hearing by ordering of pleadings to test the veracity of the claims in the suit.

iii.               Whether the contention of the only three (3) Claimants as individual members of NULGE is capable of overriding the collective decision of over a million members of the Union as represented and decided at the Special Delegates Conference held on 13/10/2019.

  1. Having regard to the seriously disputed issues of facts, the action ought to have been commenced by a writ of complaint and statement of facts to afford the parties a fair hearing and opportunity to lead evidence in proof of their claims at the trial.

The said preliminary objection has three exhibits attached to it marked Exhibits “A”, “B” and “C” which are the Writ of Complaint filed before the Abuja Division of this Court as suit no NICN/ABJ/249/2019; motion on notice for stay of execution filed before this Court on the 12/7/2019; and a motion for leave to appeal filed before the Court of Appeal, Owerri Division on the 12/7/2019.

Against the 1st, 2nd and 3rd Defendants’/Applicants’ preliminary objection, the Claimants/Respondents filed a 9 paragraphed Counter affidavit duly deposed to by the 1st Claimant accompanied with a written address and one exhibit labeled Exhibit 1 jointly filed on 25/11/2019. Consequent upon which the Applicants filed a further affidavit of 9 paragraphs deposed to by Ajewole Ayodele Emmanuel on the 20/12/2019 which was also accompanied by their Counsels’ written address and submissions.

The 4th and 5th Defendants did not file any processes either in support or against the preliminary objection. The arguments for and against the preliminary objection were adopted on 23/1/2020 and adjourned to today, 6/2/2020 for ruling on same. Being therefore that the said preliminary objection challenges the jurisdiction of this Court, it becomes necessary to consider it first before possibly determining the substantive action filed by these Claimants/Respondents.

ARGUMENTS ON THE PRELIMINARY OBJECTION:

In arguing their motion of 5/11/2019, their lead Counsel, Jimoh Balogun, for the objectors submitted two issues for determination thus:

  1. Whether this suit does not amount to an abuse of court process in view of the pendency of suit no. NICN/ABJ/249/2019 filed on 20/8/2019 and the earlier decision of this Court in suit no NICN/OW/36/2018 on specific issues raised in this action which are pending on appeal in suit no CA/OW/281M/2019?
  2. Whether in view of the serious issues in dispute from the questions formulated for consideration by the Claimants with respect to the resolution leading to the tenure elongation of the offices of all officers of the union at all levels, it is proper to commence this suit by way of an originating summons and not by a writ of complaint?

Arguing the 1st issue adumbrated above, learned Counsel stated that there is a pending suit No. NICN/ABJ/249/2019 — Nigerian Union of Local Government Employees & Ors V. Comrade Ibrahim Khaleel & Ors — before the Abuja Division of the National Industrial Court, which was filed prior to the institution of this suit with similar claims and reliefs as the one now sought here by these Claimants/Respondents. Accordingly, where a party replicates multiple actions on the same reliefs and claims, the Court must regard such duplication to be an abuse of judicial processes. He referred the Court to the decisions in AFRICAN RE CORP V. JDP CONSTRUCTION COY  and on SARAKI V. KOTOYE (citations supplied) inter alia. He remarked that where a suit constitutes an abuse of the Court’s processes, it touches on the jurisdiction of the Court to entertain same. Therefore, if considering what was exhibited as Exhibit A entirely, it should be easy for this Court to find in favour of the objectors that suit no NICN/ABJ/249/2019 is the same in facts, claims and reliefs sought with this one now before this Court. Accordingly, should this Court find there is indeed an abuse of its process, the proper thing to do is to dismiss this subsequent suit.

On whether the parties are the same with the ones here, he stated that even though the Claimants before the Abuja Division are not the same as the ones here, the most prominent fact is that the Claimants before the Abuja Division also claim to be representing the interests of the union and so the reliefs and claims sought against particularly the 1st Defendant and the National EXCO of NULGE are the same. He submitted that these Claimants are privies to the suit in Abuja because they stand to either benefit or lose should the matter be determined eventually. Besides, that nothing prevents the Claimants here from joining the suit in Abuja should they wish rather than instituting a separate suit for the determination of the same claims, issues and reliefs.

On the question of the pending appeal against this Court’s judgment in suit number NICN/OW/36/2018, the objectors accordingly deposed in their paragraphs 29 and 30 as well as by relying on Exhibit B to demonstrate that there is a pending appeal against the judgment of this Court. He said the appeal was not referred to by the Claimants here possibly as ruse to hoodwink this Court into believing that there is no pending appeal against its previous judgment. That the objectors exhibited the motion for leave to appeal filed before the Court of Appeal sitting in Owerri to establish that there is indeed a pending and subsisting appeal before her and that until the issues have been properly laid to rest, the Claimant should not begin to initiate a fresh action seeking those same reliefs as this will amount to an abuse of judicial process. The case of LEVENTIS NIG PLC V. AKPU (citation supplied) was relied upon. That although the motion for leave is what was exhibited by the objectors, the fact still remains that under Order 1 rule 5 of the Court of Appeal Rules 2016, an appeal includes an application for leave to appeal. He urged this Court to hold that hearing and deciding this cause will amount to duplication of suits since there is a pending appeal over the decision of this Court in NICN/OW/36/2018. He urged therefore that this suit must be considered as an abuse of process.

On the question of relitigating an already decided issue, Counsel urged that should this Court proceed to try this cause, there is likelihood it shall be allowing relitigation on an already decided issue which questions the propriety of the resolution on tenure elongation of the NULGE officials which was purportedly taken by the union representatives at the 2nd Special Delegates’ Conference (SDC) on 13/10/2016. He quoted pages 30 to 33 of the said judgment attached as Exhibit B to the application (and Exhibit C7 to the Claimants’ originating summons) where this Court had made various findings and concluded that the resolution made by the SDC was illegal. Therefore, argued learned Counsel, for this Court to entertain these proceedings any further, it shall amount to sitting on reviewal of its previous judgment and this is a course not open to this Court or by any other Court of coordinate jurisdiction. He relied on the decision in LIASU AND OTHERS V. SALAU AND OTHERS (citation supplied) where the appellate Court in a similar scenario as this, had held that issue estoppel binds the parties as well as the Court. On how an issue estoppel must be treated, he cited the case of APC V PDP (citation supplied) where in the holding of the Supreme Court, the doctrine of estoppel is that where an issue had been decided by a competent court, the Court will not allow it to be relitigated by different parties. Thus said, he urged this Court not to allow these Claimants to relitigate an issue that had already been decided upon by this Court in its judgment of 11/07/2019.

Moving on to the arguments canvassed on his issue number 2 raised, which is whether it is proper to commence this suit by way of an originating summons and not by a writ of complaint giving the nature of the serious issues raised in the substantive originating summons, Counsel is of firm believe that the issues raised and reliefs claimed by the Claimants are not such that should ordinarily be instituted for by way of originating summons. He cited Order 3 rule 3 of this Court’s rules 2017 and stated that like in the case of NBN V. ALAKIJA (citation supplied), originating summons should only be applicable in circumstances:

  1. Where there is no dispute in question of facts or even the likelihood of such disputes;
  2. Where it should not be used as a substitute for initiating contentious matters;
  3. Where the affidavit of the Plaintiff leaves no matters for conjecture. Where it does, an originating summons is not the appropriate procedure to use.

Learned Counsel reckoned that convening of the SDC, the schedule of the agenda there, the question of quorum, representation and whether the resolution was reached correctly are all contentious issues and have both mixed issues of facts and laws requiring a just consideration by this Court. He said that the resolution reached at the SDC cannot stand alone without testing the facts and circumstances that led to its passage. And since it is a question of mixed facts and law, it was ultimately not safe to commence this action by way of an originating summons. He cited OWUAMA AND OTHERS V. OBASI AND OTHERS (citation supplied) inter alia to submit that where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons cannot be used to initiate a cause. As such, from all the processes filed in this main contention including the various exhibits, respective depositions of the applicants and the respondents, as well as the numerous issues now raised, it suffices for this Court to convert this action to a civil complaint and to allow the testimonies of witnesses and exhibits thereby. He submitted and relied on the judicial decision in OSSAI V. WAKWAH (citation supplied) and finally urged this Court to find in favor of the objectors and strike out this cause.

ARGUMENTS IN OPPOSITION TO THE PRELIMINARY OBJECTION:

Counsel to the Respondents relying on their counter affidavit and exhibit, stated that even though they were not aware of the alleged pendency of suit no NICN/ABJ/249/2019 filed against these Defendants at the Abuja Division of this Court, but by the Certified True Copy of the record of proceedings of the said Court as contained in their Exhibit 1, it shows that the said suit had been withdrawn and struck out on 12/11/2019. The said suit is accordingly no longer pending. The law is accordingly settled that where a suit relied upon to canvass a case of multiplicity of suits and abuse of Court process has been discontinued or struck out, there are no longer multiple suits or actions to sustain an allegation of an abuse of judicial or Court processes — See MESSRS NV SCHEEP & ANOR V. THE MV “S. ARAZ” & ANOR (2000) LPELR -1866 (SC).

It was also submitted that the existence of an application for leave to appeal to the Court of Appeal against the decision in suit No. NICN/OW/36/2018 does not impugn upon the rights of the Claimants herein to file this suit nor does it make this suit an abuse of Court process. Accordingly also, these Claimants/Respondents herein are not re-litigating issues already decided in the said suit No.NICN/OW/36/2018. In this suit, whereas the Claimants are challenging the continued stay in office of the 1st Defendant and his cohorts after their tenure of office presumably expired on 24/3/2019, the Claimants in Suit No. NICN/OW/36/2018 who are different parties from the Claimants in this present suit, challenged the continued stay in office of the officers of the Imo State Branch of NULGE after their own tenure of office expired on 14/6/2018. Both suits were filed by different parties to redress different grievances, stated learned Counsel. That the judgment in the said suit No. NICN/OW/36/2018 is rather being relied upon in this suit, as permitted by law, to support a plea of estoppel on the issue of the status of the purported Akure Resolution of 13/10/2016 against these Defendants. Counsel relied on  Sections 173 and 174 of the Evidence Act, 2011.

It was submitted further that the arguments by the 1st – 3rd Defendants’ Counsel in paragraphs 3.23 – 3.30 of his written address to the effect that the decision of the Court in suit No. NICN/OW/36/2018 on the status of the purported Akure tenure elongation resolution is binding on the parties and constitutes issue estoppel, justifies the Claimants attempt to rely on same at reaching a fair and just decision by this Court. Relying upon and making use of a judgment as estoppel does not amount to re-litigating the issues decided in the judgment, but rather giving effect to such judgment as pronounced. Counsel relied on the Supreme Court decision in AGBOGUNLERI V. DEPO & ORS (citation supplied).

On the question of the propriety to initiate this cause by originating summons, it was canvassed that this suit was properly initiated by Originating Summons as there are no hostile facts in the proceedings. The case of the Claimants is that the 1st Defendant and the other National Officers of the NULGE were elected into various offices for a four year constitutional tenure which commenced on 24/3/2015. The Claimants further stated that the said 4 year tenure expired on 24/3/2019 but that the 1st Defendant and his cohorts refused to vacate their elective positions alleging that there was a resolution granting them two years tenure elongation. In the Counter affidavit filed by all the Defendants, the above facts on which the Originating Summons are based are accordingly unequivocally admitted. It follows therefore that what this Court is being called upon to do is to interpret the relevant provisions of the NULGE Constitution and the Trade Unions Act to determine whether the tenure elongation being claimed by the 1st – 3rd Defendants is constitutional and legal. There is absolutely no dispute as to facts to make these proceedings hostile, argued learned Counsel.

Accordingly, it is trite law that the fact these Defendants filed a Counter affidavit does not per se make the proceedings hostile — OSSAI V. WAKWAH (Supra); PAM V. MOHAMMED (2008) 161 LRCN 216 @ 245-246. For there to be conflicts in the affidavits that will receive the attention of the Court, such conflict must be material and fundamental to the live issues in the case, argued the learned Chief Onyema.  Presumably therefore, even if any conflicts existed, they must be such that will become impossible to resolve on the basis of the affidavits and documents filed in support of and in opposition to the originating summons — ALFA V. ATTAI (2018) 5NWLR (PT.1611)59. In the instant suit therefore, there are accordingly neither conflicts nor substantial conflicts in the affidavits filed in the substantive originating summons. Counsel animadverted that this suit is properly initiated by Originating Summons and there is no justification under the law to order pleadings. He concluded by urging this Court to dismiss all the grounds of the preliminary objection raised by the 1st – 3rd Defendants for being frivolous and lacking in merit and to proceed, in the interest of justice to determine this suit as constituted on the merits .

REPLY ON POINTS OF LAW:

In response to the Claimants’/Respondents’ Counter Affidavit and arguments, the 1st to 3rd Defendants/Applicants filed a further affidavit of 9 paragraphs along with written submissions dated and filed on 20/12/2019 wherein their Counsel submitted the following thus:

  1. On effect of discontinuance of suit no NICN/ABJ/249/2019, it was submitted that the law is settled that it is not the existence or pendency of the previous suit that causes the problem of abuse for the Claimants in suits but the institution of fresh suits between the parties on the same subject matter when the previous suit was not disposed of — A.B.C.V. NWAIGWE (2011) 7 NWLR (PT. 1246) 380 @ 394 PARA C-G (SC). It was submitted by Counsel that provided there has been an abuse of the process of Court, the Court will still lack the requisite jurisdiction to entertain the suit notwithstanding that one of the suits abated or was discontinued to keep alive the other suit.

Accordingly, as in ALHAJI LATEEF AKINSOLA V. NURTW & ORS (2013) 33 NLLR (PT.96) 399, the court held

“….it is the law that for there to be an abuse of Court process, there must exist a multiplicity of suits between the same parties on the same subject matter and on the same issues which pre-conditions are mutually inclusive as they are conjunctive, furthermore, it is an abuse of the judicial process for the plaintiff to file discontinuance so that he may have his way in a new suit. See OLAWORE V. OLANREWAJU (1998)1 NWLR (PT.534) 436 at 455”

  1. On what Counsel referred to as action by privies and piecemeal litigation, it was submitted that the Claimants/Respondents have not disputed the fact that the subject matter and issues in suit No. NICN/ABJ/249/2019 are the same with the present suit. This is taken and deemed to have been admitted by the Claimants/Respondents in this case and in respect of the preliminary objection — BOTTLING INDUSTRY LIMITED V. U.B.N PLC (2010) ALL FWLR 510, page 786 at 804. That these Claimants/Respondents have not denied that they and the Claimants in Suit No. NICN/ABJ/249/2019 are all members of the 2nd Defendant/Objector Union. Again, the Claimants/Respondents are deemed to have admitted such and their contention suggesting parties are not the same is only contained in their deposition in paragraph 3 of their Counter Affidavit and paragraph 2.01 of their Written Address. That in ALEXANDER OBIOHA V. AERO MARITIME NIG LTD &ANOR (2013) 32 NLLR (PT.91) 155 where different Claimants who are members of the same association and employees of the same company had instituted similar actions claiming similar reliefs against the same company and their employer, his lordship B.B KANYIP, J held that the multiplicity of the actions was an abuse of the process of Court because the parties and the issues in the various suits are similar. The fact that not exactly the same persons are in those suits is immaterial. It was submitted that, the implication of the foregoing statement of the law as encapsulated and reiterated by Honourable Justice B.B KANYIP is that, it is not a question of whether the Claimants are aware or not of the other suit or that they are not exactly the same persons. According to Counsel, what this Court is entitled to inquire into here is if the parties are similar in the multiple suits. It is settled law that so far the Claimants in the various suits are members of the same industry or association, the filing of similar suits in different Courts on similar issues and subject matter will amount to an abuse of Court process.

Again, it was reiterated that the Claimants in the present suit as members of NULGE are no doubt privies to the Claimants in suit No.NICN/ABJ/249/2019 as well as the Claimants in suit No.NICN/OW/36/2018. This is because they are all members of NULGE who have approached this Court seeking similar reliefs on the same issue and subject matter almost contemporaneously. He cited Incorporated Trustees of Nigerian Governors Forum & Anor V. Riok (Nig) ltd & Anor (2018) LPELR-44915 at Pp. 72-78, (paras. C-A) (CA) and urged this Court to rely on the decision. As such, that the fact that these Claimants/Respondents are relying on the same sets of facts, claims and reliefs as in suit no. NICN/ABJ/249/2019 and suit no. NICN/OW/36/2018, presupposes that these Claimants/Respondents could have maintained the same action against these Defendants/Objectors in the same suit No. NICN/ABJ/249/2019 or even suit No. NICN/OW/36/2018 without the necessity of instituting this present suit. The law, abhors piecemeal litigation and same has been held to amount to an abuse of the Court in SHUAIBU V. MAILAYA (2017) LPELR – 43192 (CA). He also referred to ALLANAH V. KPOLOKWU (2016) 6NWLR part 1507 page 1 at 27-28 para G-C, the Supreme Court held what constitutes an abuse of Court process.

Interestingly, the learned Counsel for the objectors reopened his arguments on the same issues and arguments he already advanced and as summarized above. Therefore, as can be gleaned from pages 5, 6 and 7 of their written address in reply on points of law, the submissions are a recapitulation of the arguments proffered on the issue of abuse of Court process and on the alleged contentious nature of issues in this suit which shall require the filing of pleadings for there to accordingly be a just and fair resolution.

However, learned Counsel did not stop there but went ahead to construct and raise a fresh issue not hitherto contemplated by his notice of preliminary objection or in the grounds which he preferred to rely upon in arguing his preliminary objection. In page 8 paragraph 1.18 which he referred to as the “failure to fulfill a condition precedence”, he elicited several submissions and arguments, relying on plethora of judicial authorities on why this suit should not have been initiated because the Claimants had not taken any prior steps to complain about their grievance in accordance with Rule 5 of the NULGE Constitution 2016 through the appropriate channel before filing this action. His arguments on this issue spreads from pages 8 to 11 of the said reply. I therefore agree with the learned Counsel for the Claimants/Respondents when he stated orally on the 23/1/2020 that the 1st to 3rd Defendants’ Counsel cannot introduce fresh issues not originally captured in his preliminary objection and argue on them for the purpose of determination. Therefore, this fresh issue is without compunction, jettisoned and same cannot become the basis for the findings I shall make shortly.

COURT’S DECISION:

Having expended considerable efforts and given due consideration to the arguments for the application by way of preliminary objection as well as the response made against it as well as perused thoroughly the response made by way of arguments on points of law, I believe the issues germane for determination are as raised by the Applicants herein which are:

  1.  Whether this suit does not amount to an abuse of court process in view of the pendency of suit no. NICN/ABJ/249/2019 filed on 20/8/2019 and the earlier decision of this Court in suit no NICN/OW/36/2018 on specific issues raised in this action which are pending on appeal in suit no CA/OW/281M/2019?

  1. Whether in view of the serious issues in dispute from the questions formulated for consideration by the Claimants with respect to the resolution leading to the tenure elongation of the offices of all officers of the union at all levels, it is proper to commence this suit by way of an originating summons and not by a writ of complaint?

With respect to issue 1 above, there are three pronged questions raised which shall require this Court to determine. Meanwhile, I agree with both Counsels’ submissions on the meaning and on what constitutes or amounts to an abuse of a Court’s judicial processes — NV. Scheep v. MV. S.Araz (2000) 15 NWLR (Pt.691) 622 is apposite and suffices.  However, I can straight forwardly state that should I find that the Exhibit 1 attached to the Claimants’/Respondents’ counter affidavit which is the CTC of the record of proceedings in suit number NICN/ABJ/249/2019 to be believable, it will mean that the fate of these Applicants’ arguments on the issue of abuse of this Court’s judicial processes, almost hangs in the balance. This is because based on that exhibit alone, the said suit number NICN/ABJ/249/2019 no longer exists having been withdrawn and accordingly struck out by the Abuja Division on the 12/11/2019 per Oyewumi, J. The issue doesn’t yet completely fail at this point nonetheless since I still must determine the questions of issue estoppel raised and the propriety to further entertain this suit in the pendency of an alleged appeal at the Court of Appeal as suit number CA/OW/281M/2019.

Consequently, the remaining two questions which now rare their heads for determination with respect to the issue of abuse of Court or Judicial processes are:

  1. The propriety of determining this action in the pendency of the purported appeal filed against this Court’s decision in suit no NICN/OW/36/2018; and
  2. Whether entertaining this action amounts to relitigation of an issue previously decided by this Court.

On the first question, the Applicants’ argument is that there is an appeal against this Court’s previous judgment and for all intents and purposes, it shall be necessary to stay these proceedings in the very least, pending the determination of the appeal. They tendered two exhibits to support this view which are the application for stay of execution (Exhibit B) and a motion for leave to appeal (Exhibit C) both filed on 12/7/2019. Against their arguments, the Claimants/Respondents denied the existence of any appeal and submitted that assuming there was even any, this does not affect or impugn on the Claimants’ rights to institute and prosecute this matter. That being an originating summons this Court can proceed to determine same particularly since leave is yet to be procured from the appellate court. Besides, the fact that the parties in that suit and this one are accordingly different and the grievances determined previously which were with respect of the tenure of the Imo State NULGE officers and not that of the National body (until this suit now filed), the Applicants do not merit their arguments therefore that this suit is or likely to be an abuse of court processes.

Allow me to state without further deliberating on this question that the mere fact that a motion was filed for appeal at the Appellate Court does not mean that an appeal has been duly entered. In STANBIC IBTC BANK PLC v. LONG TERM GLOBAL CAPITAL LIMITED & ORS (2016) LPELR-40517(CA) “… the law is well settled that giving Notice of appeal is not sufficient to consider the appeal as having been properly entered. An appeal is deemed to be properly entered when the records of appeal are compiled and transmitted to the Court of Appeal by the Registrar — See Order 4 Rule 10 of the Court of Appeal Rules 2011 which provides that “An appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court”” Per ABUBAKAR, J.C.A. (Pp. 46-47, Paras. E-A). Therefore, although I concede that the Defendants have filed a notice of appeal, it is yet to be duly entered having not yet compiled and transmitted the records of proceedings. Besides, these Applicants are still required by the Constitution 1999 (as amended) to obtain the leave of the appellate court to prosecute the appeal, it not being filed as of right though against the final decision of this Court. Thus found, the question here is resolved against these Applicants the implication of which is that the existence of a pending appeal cannot impugn on the Claimants’/Respondents’ rights to institute this action, and I so pronounce.

On the application for stay of execution filed by them on the 12/7/2019 (Exhibit B), although the said motion is yet to be argued and considered, but it is important to state in passing since the question was raised anyway, that the reliefs granted previously in suit number NICN/OW/36/2018 were declaratory in nature and thus being the case, I wonder if there is any executory judgement sought to be stayed? — See ALIMS NIGERIA LIMITED V. UNITED BANK FOR AFRICA PLC (2013) LPELR-22000(CA). My opinion made obiter notwithstanding does not fetter their prerogative to pursue the said application. Why I like the following pronouncement of the Supreme Court beats me, but according to Lord Rhodes-Vivour in ARAGBIJI OF IRAGBIJI OBA RASHEED AYOTUNDE OLABOMI & ANOR V. OLABODE OYEWINLE & ORS (2013) LPELR-20969(SC) — a declaratory judgment or order is one that proclaims or declares the existence of a legal relationship, but does not contain any order which may be enforced against the defendant. Once rights declared in a declaratory judgment are infringed fresh proceedings are needed for enforcement. Declaratory judgments cannot be enforced by execution, as there is nothing to enforce. So where a court delivers a declaratory judgment, the party appealing may be granted an injunction if he deserves it but never a stay of execution pending the determination of the appeal.

I shall return to the issue of the declaratory orders made by this Court in that judgment shortly.

On the second question which is whether it is proper to relitigate on an issue that had already been determined in a previous decision as parties and their privies and or any person likely to benefit from such determined issue, are estopped from relitigating on same, I concede and as was decided in the case of ALHAJI SHEHU USMAN ALIYU YAMMEDI & ANOR. V. ALHAJI AHMED AUDI ZAREWA & ORS.(2009) LPELR-5111(CA) that  — “It is a known principle of law that there must be an end to litigation meaning therefore, that a party cannot be allowed to reopen or re-litigate on an issue already determined by the Court simply because fresh or new evidence had been obtained. Once an issue had been raised and distinctly determined between the parties to a suit, neither party can be allowed to litigate that issue all over again — UKACHUKWU V. UBA (2005)18 NWLR (Pt.956) p.1. Further in AJIBOYE V. ISHOLA (2006)13 NWLR (Pt.998) p.628, the Supreme Court stated that it is normal to find within a single cause of action several issues which call for determination and are necessary for the determination of the whole case. As a general rule, once one or more of any such issues have been distinctly raised in a cause of action and determined between the same parties in a court of competent jurisdiction, neither party, his privies, agents or servants is allowed to re-open or relitigate any of such issues all over again in another action between the parties. The situation of precluding a party from contending or relitigating over a matter will never arise if the same questions were not decided in both proceedings.” Per ORJI-ABADUA, J.C.A.(Pp. 27-28, paras. C-A).

For issue estoppel to apply, the following ingredients must be presented: (1) The parties must be the same in the previous and present actions, (2) the same question that was decided in the previous action must arise in the present action in respect of the same subject matter, and (3) that question must be a final decision of a competent Court — the issue must have been resolved in the previous suits — SAKA V. ADEBOIYE AND OTHERS (2009) LPELR-4920(CA). Issue of estoppel thus arises where an issue has been adjudicated upon by a court of competent jurisdiction and the same issue has arisen in question in a subsequent proceeding between the same parties or their privies — IKOTUN V. OYEKANMI (2008) 10 NWLR (Pt.1094) 100.

In order to understand the dilemma of the question here, the applicants said that the decision of this Court on 11/7/2019 with respect to suit no NICN/OW/36/2018 between EKEANYANWU AND OTHERS V. RICHARD EZE AND OTHERS specifically nullified the purported resolution taken or issued on 13/10/2016 at Akure to elongate the tenure of all the elective officers of the union at all levels, for an additional two years. This Court had held that no resolution, prior to its registration or recognition by a Registrar of Trade Unions is in effect, a law. Therefore, for the Claimants/Respondents to now institute this action as representatives of the said union and seek for the same declaration, amounts to relitigating the issue which had already been put to bed by this Court and is purportedly one of the issues raised on appeal. Learned Counsel for these Applicants also narrated how the issue of the tenure elongation is the bedrock of their action and without that resolution, there cannot be any action between these grieving Claimants and the Defendants. He said also that having been nullified in the previous judgment by this Court, the same resolution cannot again be challenged in this Court as these subsequent parties are estopped by the principle of res judicata from relitigating the same issue. That it impugns on the jurisdiction of this Court or any other Court of coordinate jurisdiction to entertain this same issue again.

Counsel for the Claimants/Respondents on the other hand, believes that the issue having been determined, becomes a matter which can be used against the Defendants and it was thus proper for them to commence this action by way of originating summons for the purpose of obtaining the reliefs they seek to effect the removal of the Defendants from the elective offices they now hold unlawfully.

In all these arguments raised however, (and by the way I quite agree with both submissions), none of them considered the nature of the judgments handed down by this Court from the previous decision. A perusal of the said reliefs granted in that suit shall indicate that the judgments were mostly declaratory in nature. The borne of contention is whether my decision nullifying the resolution can be relitigated? The answer to this is both yes and no. No, because the issue has been put to rest and cannot be reopened in this Court for the purpose of making the same pronouncement and yes, because being in the nature of a declaratory judgment, the only way to secure its enforcement against parties affected by it is by instituting a subsequent action. Let me further simplify it this way: by filing a subsequent originating summons — like these Claimants did which basically have the same claims, prayers and reliefs sought with the previous case determined by this Court — what they eventually seek are substantially the same declaratory reliefs as is expressly gleaned from their originating processes. From that stand point alone, it does amount to relitigating on virtually the same issues that were decided upon previously even though the Claimants are not the same. However, in order to enforce the portion nullifying the resolution of the SDC which is declaratory in nature, the Claimants must come by way of a writ of complaint to enforce the rights which they believe inured to these Claimants from the Court’s previous declarations. The opinion may seem tacky until it is given due consideration from the point of view of the reliefs claimed here in comparison with the reliefs sought previously. While it is not disputed that pursuant to Order 3 rule 3 of this Court’s rules, civil proceedings may be commenced by way of originating summons on matters relating principally to the interpretation of any instrument (in this case that includes judgments), however under Order 3 rule 17 (2) where a suit commenced by originating summons raises substantial issues and disputes of facts, the court shall not strike out the matter but may order its conversion to a Complaint and direct the parties to file and exchange pleadings and conduct the trial in accordance with the rules of the Court governing trials. After all, the aim of an action commenced by originating summons is to simplify and speed up procedure and can only be useful where there is no serious dispute concerning facts — JOSEPH OWUAMA & ORS. V. ANTHONY OBASI & ORS. (2010) LPELR-4371(CA).

From my opinion above therefore, it does amount to a classical case of an abuse of judicial process to relitigate on an issue which had already been determined by my previous judgment on the 11/7/2019. Parties and their subsequent privies, are estopped from raising issues that have already been determined under the principle of res judicata, and I so hold. I shall come to the effect of this finding shortly.

On the second issue raised for determination, automatically and consequent on my finding beforehand, I have no difficulty in conceding to the second issue raised for determination by this Court, that this action cannot be prosecuted via originating summons in view of the serious issues raised herein.

Ultimately, I believe these Claimants/Respondents ought to have realised from the outset that there is likely to be serious disputation on some of the facts they raised giving the nature of the claims they seek and so they ought to have prepared themselves to present evidence through pleadings and witnesses should the occasion demand. It is probably even evinced from the volume of processes already filed on behalf of the respective parties. I concede therefore that there are in fact and in law, serious issues raised which may make it impracticable for this Court to determine this action by way of affidavit evidence and I so hold.

Now coming down to the effect of my findings above, the question to determine is having found that the parties are estopped from relitigating an issue which had already been determined previously and that this suit should be converted to a complaint pursuant to Order 3 rule 17 (2) of the rules of this Court, whether the suit as it is presently constituted should be struck out or simply converted to a complaint? This question is properly understood from the point of view that the first question bothers on the legality of the action as it touches on this Court’s jurisdiction whereas the second, is based on procedure which may be regularized.

Before I answer this question, I had cause to carry out investigation concerning a fact deposed to though jettisoned by this Court initially since it was in fact raised as a fresh issue without leave of this Court in response to the counter affidavit filed by the Respondents. Upon inquiry by this Court’s registry as to the purported fact that there are several other matters filed and pending against these Defendants (particularly the 1st) in other divisions of this Court — deposed to in paragraph 5 of the further affidavit filed on 20/12/2019 by these Applicants, — it was discovered that in truth, there are similar other suits pending before my learned brothers in Uyo, Awka, Ibadan and Yenagoa Divisions. The suit in Uyo for instance which is suit number NICN/UY/40/2019, was filed on the 19/9/2019 between COMRADE EFIOK ASUQUO UDOH AND OTHERS V. NULGE, COMRADE IBRAHIM KHALEEL AND 2 OTHERS and it contains verbatim, the same claims and reliefs sought for by these Claimants/Respondents herein. While it is arguable that this Court went an extra mile in bringing up an issue outside those raised by these parties, it is absolutely necessary for this Court to do what it presumes to be substantial justice as well.

Therefore, reverting back to whether this cause should be struck out or converted to a complaint, it does seem easy for me to take the former course since besides, the objection on the question of issue estoppel is sustained. Striking out this cause would even have been the proper thing to do considering that the objection succeeds in part. However, that will not ordinarily have fettered the Claimants’ rights to reinstitute the same action should they choose. But considering that the other suits exist and they are likely to be challenged for their multiplicity, it will mean that for as long as they are still pending in those Courts, these Claimants as they are presently constituted, cannot refile or reinstitute this action before this Court for the same claims and reliefs which are already pending before my learned brothers for adjudication. As a matter of fact, I believe it is high time the parties became unison in pursuing what they foresee to be a common front. Take it or leave it a complete broom will always be stronger and more dependable, than a single broom stick. Giving the foregone opinions therefore, striking out this suit is for the time being, with prejudice against these Claimants’ rights to reinstitute same, and I so declare.

Consequently, this preliminary objection is partly upheld. This suit is an abuse of judicial process and the case is therefore struck out for the above opinions and reasons given only.

Parties are to bear their respective costs of this action.

Delivered in Owerri this 6th day of February, 2020.

Hon. Justice Ibrahim Suleiman Galadima

Presiding Judge,

NICN, Owerri Division

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