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COMRADE SAMUEL AKPAN & 2 ORS -VS- BARR. MARTINS EFFIONG

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

DATE: 11TH JUNE, 2018                                                  

SUIT NO: NICN/UY/11/2017

 

BETWEEN:

 

  1. COMRADE SAMUEL AKPAN……………CLAIMANTS
  2. COMRADE HILARY OKON AKPAN
  3. COMRADE DONALD EKONG

 

AND

 

BARR. MARTINS EFFIONG ………………DEFENDANT

 

REPRESENTATION:

 

Toyo Jimmy for the Claimants.

Femi Aborisade with Micheal Itorobong for the Defendant.

 

JUDGMENT

 

On 10th May, 2017, the claimants took up an originating summons against the defendant praying for the determination of the following questions:

 

  1. Whether the Bureau of Cooperative and Food Sufficiency is one of the departments or parastatals of government recognised by the Constitution of the Nigerian Union of Local Government Employees (NULGE) as a place of work for members of the Union?

 

  1. Having been transferred from the Local Government Service of Akwa Ibom State and deployed to the Bureau of Cooperative and Food Sufficiency (where he has been made a Director), can the Defendant who was elected in October 2014 as President of Nigeria Union of Local Government Employees, Akwa Ibom State Branch, still retain his position as the President of the said Union?

 

In the determination of these questions, the Claimants sought for the following Reliefs:

 

  1. A declaration that by Rule 3 (1) (ii) of the Constitution of NULGE, 2005 (as reviewed), the Bureau of Cooperative and Food Sufficiency is not one of the institutions or parastatals or departments of government where members of NULGE can work.

 

  1. A declaration that having been transferred from the Local Government Service of Akwa Ibom State and deployed to the Bureau of Cooperative and Food Sufficiency, the Defendant has lost his membership of NULGE and therefore ineligible to continue to occupy the office of President of NULGE, Akwa Ibom State Branch.

 

  1. An order of court vacating Barr. Martins Effiong forthwith from the office of President, Nigeria Union of Local Government Employees (NULGE) Akwa Ibom State Branch, for reason that his membership of the Union has lapsed by operation of law as a result of his transfer from the Local Government Service of Akwa Ibom State to the Bureau of Co-operative and Food Sufficiency.

 

  1. Any further order as this Honourable Court may deem fit to make in the circumstances of this application.

 

In support of the Originating Summons, the Claimants filed a 19 paragraphs affidavit with 4 Exhibits deposed to by the 1st Claimant and a written address settled by Ekemini Udim in accordance with the rules of this court. In his reaction, the Defendant filed a 38 paragraphs affidavit with 10 exhibits deposed to by the Defendant and a written address settled by Femi Aborisade. With this processes intact, the parties adopted their written addresses on 16th April, 2018.

 

CLAIMANTS’ CASE:

 

The 1st Claimant is an Assistant Market Superintendent in the Finance and Revenue Mobilization Department of Uyo Local Government Area of Akwa Ibom State. The 2nd and 3rd claimants are employees of the Local Government Service Commission. And by virtue of that are members of Nigeria Union of Local Government Employees (NULGE).

 

The Defendant who according to the Claimants was the Head of Personnel, Etinan Local Government Council was elected as President Nigeria Union of Local Government Employees, Akwa Ibom Branch and sworn in sometimes in December, 2014 for a term of four years. Sometimes in 2016, the Defendant was transferred to the Bureau of Cooperative and Food Sufficiency as Director thereby losing his membership of NULGE by operation of law.

 

The Claimants are of the strong view that the Union admits only employees from departments and parastatals of government specifically mentioned Rule 3 (i) and (ii) of the Constitution of NULGE, to wit:

  1. Any person who is employed in the following Local Government and Allied Services shall become a member of the Union:
  2. a)Local Government or Municipal Government Service.
  3. b)Public Utility Service.
  4. c)Town and Country Planning Services.
  5. d)Joint Transport Service established under the Local Government Edict or Law.
  6. e)Local Government Service Commission.
  7. f)Local Government Pension Board.
  8. g)Waste Disposal Services.
  9. h)Environmental Sanitation Authority and;

 

  1. Any other undertaking established under Local Government Edict or Law enacted by any State of the Federal Republic of Nigeria.

 

It is the Claimants’ contention that by the Constitution of NULGE, 2005, the Bureau of Cooperative and Food Sufficiency is not one of the places of employment/work for members of NULGE. And since the defendant is no more working in any of the Local Government Councils of Akwa Ibom State or any of the related departments or parastatals specifically mentioned in Rule 3 (i) (ii) of the Constitution of NULGE, the Defendant’s membership of NULGE has lapsed by operation of law and for that reason, the Defendant is no more competent to continue in office as President of NULGE, Akwa Ibom State Chapter.

 

DEFENDANT’S CASE:

 

The Defendant was not a staff of Etinan Local Government Council as at the time he was elected the State President of the Nigeria Union of Local Government Employees, Akwa Ibom State in 2014 but rather, a staff of Essien Udim Local Government Council. The Defendant disputed that he was deployed and not transferred from Eket Local Government Council to the Bureau of Cooperative and Food Sufficiency and that as the time of his deployment he was “Head of Local Government Service” and not the “Head of Personnel”. The Defendant further deposed to the following facts:

 

  1. The Akwa Ibom State Public Service Rules requires that an inter-service transfer involves the Staff who desires to be transferred to freely apply voluntarily and since he did not apply, he was deployed against his wish.

 

  1. His employment into the Unified Local Government Service qualifies him to be a member of the Nigeria Union of Local Government Employees and to be elected as State President of the Union.

 

iii.               It never happened that elected union leaders are deployed outside the Local Government Service during their tenure of office.

 

  1. His deployment was done to victimize him on account of his trade union activities and to undermine the position and functions of the President of NULGE.

 

  1. It is not true that he has lost the membership of the Union and its presidency.

 

  1. His deployment outside the Local Government Service is being processed as an employment grievance or a trade dispute against the State Government as well as against the Akwa Ibom State Local Government Service Commission by NULGE as provided under Rule 3 (v) of NULGE’s Constitution.

 

vii.             The NLC and the TUC have maintained that inspite of the deployment, he will complete his tenure as the President of NULGE, Akwa Ibom State and that stance was communicated to Governor of Akwa Ibom State.

 

viii.          It is the position of the NLC and the TUC, that the right to elect, appoint and/or remove appointed/elected leaders belongs exclusively to Union members alone and that this right cannot be overturned or affected by transfer and/or deployment of the elected union officer.

 

  1. Apart from processing the issue of the deployment as an employment grievance or a trade dispute, the National Secretariat of NULGE, has also reiterated that the Defendant will continue to preside over the affairs of the Union and offer leadership and direction to the officers and members of NULGE in Akwa Ibom State.

 

  1. 17 other elected branch Chairmen of NULGE have been similarly transferred from the Local Government Councils (where they were elected chairmen) to other Local Government Councils.

 

  1. The National Secretariat of NULGE has formally declared a trade dispute against the issues of the inter-service deployment from the Local Government service to the State Civil Service.

 

xii.             The Minister of Labour has directed the State Controller, Federal  Ministry of Labour and Employment, Akwa Ibom State to conduct conciliatory meetings over the inter-service deployment and intra-service transfer of the Defendant and the other 17 elected Branch Chairmen of NULGE.

 

xiii.          The State Controller, Federal Ministry of Labour and Employment, Akwa Ibom State has held meetings on two Occasions with the Government of Akwa Ibom State, the Local Government Service Commission, Akwa Ibom State and NULGE on 12/4/17 and 12/5/17 over the inter-service deployment and the intra-service transfer of other 17 elected branch Chairmen of NULGE.

 

xiv.           The issue of the deployment outside the Local Government System is still going through the process of mediation, conciliation and arbitration.

 

  1. The Local Government Service Commission has been sponsoring division and imposing unelected workers to take the positions of elected officers and the present suit is a continuation of the sponsored divisions and crisis in NULGE, Akwa Ibom State.

 

xvi.           The Local Government Service Commission, Akwa Ibom State has withheld union dues from the elected NULGE officers under the Defendant’s leadership and has been funding those handpicked leaders.

 

xvii.        The Constitution of NULGE provides for internal mechanisms for resolution of disputes as Rule 5 (iii) (a) of NULGE Constitution provides that aggrieved members at the Akwa Ibom State level have a duty to appeal to organs of NULGE that are higher in rank to the Akwa Ibom State Executive Council.

 

xviii.      In particular, Rule 5 (ix) of NULGE Constitution provides that questions dealing with interpretation of the NULGE’s Constitution are required, first, to be referred to the National Executive Council.

 

xix.           It is a fact that the Claimants have not brought their grievances about the Defendant’s continued Presidency of NULGE at the State level to the State Executive Council (SEC) with a view to obtaining a decision of the State Executive Council which they may appeal against to the organs higher in rank to the State Executive Council (SEC).

 

  1. The Claimants have not referred any issue of interpretation of NULGE’s Constitution to the National Executive Council before they came to this Honourable Court.

 

xxi.           The Claimants have not explored mediation, conciliation and arbitration mechanisms, which require the involvement of the Ministry of Labour before they invoked the adjudicatory powers of this Honourable Court.

 

xxii.        The interest of justice will be better served if the reliefs sought by the Claimants in their Originating Summons are refused.

 

CLAIMANTS’ SUBMISSIONS IN SUPPORT OF THE ORIGINATING SUMMONS

 

 

The Claimants framed two issues for determination by this Court, which are taken one after the other:

 

Issue No. 1:

 

  1. Whether the Bureau of Cooperative and Food Sufficiency is one of the departments or parastatals of government recognised by the Constitution of the Nigerian Union of Local Government Employees (NULGE) as a place of work for members of the Union?

 

The Claimants started by stating that the Constitution is the grundnorm and fundamental law of any union as it regulates the establishment, membership and offices of the union, amongst other items thereby making its supreme and binding on all members. To this end, the Claimants referred to Rule 5 (ii) of the Constitution of Nigeria Union of Local Government Employees, 2005 (as reviewed):

 

“The Constitution shall be the basis of the contract between the members to establish and operate the Union.”

 

The Claimants submitted that Rule 3 of the Constitution makes provision for the membership of the Union and specifically itemised the places of work or government establishments from which membership of the Union can be drawn as follows:

 

“Rule 3: Membership –

  1. Any person who is employed in the following Local Government and Allied Services shall become a member of the Union:
  2. a)Local Government or Municipal Government Service.
  3. b)Public Utility Service.
  4. c)Town and Country Planning Services.
  5. d)Joint Transport Service established under the Local Government Edict or Law.
  6. e)Local Government Service Commission.
  7. f)Local Government Pension Board.
  8. g)Waste Disposal Services.
  9. h)Environmental Sanitation Authority and;

 

  1. Any other undertaking established under Local Government Edict or Law enacted by any State of the Federal Republic of Nigeria.

 

It is the submission of Claimants that by the express mention of the institutions or establishments of government or places of work from which membership of NULGE can be drawn, the Constitution has clearly excluded every other place of work not specifically listed in the said provision of the Constitution. Claimants referred to the Latin maxim “Expressio unius est exclusion alterius”. “The express mention of one thing is the express exclusion of another.” Because of this, the Claimants strongly submitted that membership of the union is only open to persons working in the places of work listed in Rule 3 (i) (ii) of the Constitution of NULGE, 2005 to the exclusion of every other persons. For this reason, any person whose place of work is not listed in Rule 3 of the Constitution of NULGE cannot be a member of NULGE.

 

To the Claimants, a careful reading of Rule 3 (i) (ii) of the Constitution of NULGE reveals clearly that the Bureau of Cooperative and Food Sufficiency is not one of the places of work recognised by the Constitution from which membership of the Union can be drawn.

 

Finally, the Claimants submitted that since the Bureau of Cooperative and Food Sufficiency is not one of the departments or parastatals of government recognised by the Constitution of NULGE, 2005 as a place of work for members of the Union, the issue should be resolved in their favour.

 

Issue No. 2:

 

Having been transferred from the Local Government Service of Akwa Ibom State and deployed to the Bureau of Corporative and Food Sufficiency (where he has been made a Director), can the Defendant who was elected in October, 2014 as President of the National Union of Local Government Employees, Akwa Iborn State Branch, still retain his position as Chairman of the said Union?

 

The Claimants invited the court to hold that since the Defendant is now working in the Bureau of Cooperative and Food Sufficiency, an establishment not contemplated by the Constitution of NULGE, the Defendant’s membership of NULGE has lapsed by operation of law.

 

The Claimants contended that when interpreting the provision of a Constitution, courts of law are usually enjoined to look at the intendment of the makers of the constitution and that if it was the intention of the makers of the constitution of NULGE that its President should be a person whose place of work is not a Local Government Council nor any of the department or agencies of government, they would have specifically said so in clear terms.

 

The Claimants prayed the court to employ the literal rule of  interpretation in the interpretation of Rule 3 (i) (ii) of the Constitution of NULGE, 2005 and cited the case of Cotecna International Limited v. Churchgate Nigeria Ltd (2010) 18 NWLR (Pt. 1225) 346 where the Supreme Court held, per Galadima, J.S.C. that:

 

“The fundamental rule of interpretation of a statute is that every statute is to be expounded to its manifest and expressed intention. Where the words are clearly expressed, the court is duty bound to give the words their literal meaning. “

 

The Claimants forcefully submitted that the wording of Rule 3 (i) (ii) of the Constitution of NULGE, 2005 (as reviewed) are very clear and leaves no room for ambiguity or conjecture and that a dispassionate reading of the Rule can lead to only one conclusion/meaning, that is, that the President of NULGE, Akwa Ibom State Branch, can only be a person working in any of the Local Government Councils or any of the other places of work specifically mentioned or listed in the Constitution of the Union. The Defendant cannot be a member of the Union let alone its President.

 

Finally, the Claimants urged the Court to hold that having been transferred from the Local Government Service of Akwa Ibom State and deployed to the Bureau of Cooperative and Food Sufficiency, the Defendant has lost his membership of NULGE and therefore ineligible to continue to occupy the office of President of NULGE, Akwa Ibom State Branch.

 

DEFENDANTS’ SUBMISSIONS IN OPPOSITION TO THE ORIGINATING SUMMONS

 

In opposing this suit, the Defendant formulated three issues for determination, which are as follows:

 

Issue No. 1:

 

Whether the court has original jurisdiction to hear and determine the Plaintiffs’ intra­-union dispute suit where the mandatory provisions of Part I of the Trade Disputes Act have not been exhausted and the existing trade dispute declared by NULGE, which is being processed under Part 1 of the Trade Disputes Act is yet to run its full course.

 

First of all, the Defendant informed the Court that the subject matter of the Claimant’s Suit is already the subject of a trade dispute being processed by the Ministry of Labour and Employment. To him, paragraphs 20-25 of the Defendant’s Counter Affidavit have shown beyond controversy that the deployment of the Defendant from the Local Government Civil Service to the State Civil Service is a product of deep intra-union dispute sponsored by the State Government of Akwa Ibom State and the Local Government Civil Service Commission. He further informed the Court that a trade dispute has been declared due to his deployment and the dispute is already going through the processes of mediation, conciliation and arbitration as statutorily required under Part 1 of the Trade Disputes Act (TDA).

 

Based on the above, the Defendant argued that this Court, in a plethora of precedents, has held that observance of the statutory processes in Part 1 of the TDA is a condition precedent before this Court can competently exercise its jurisdiction and that this Court lacks original jurisdiction to hear and determine the Plaintiffs’ Originating Summons dated and filed on 10th May 2017. The Defendant relied on the following constitutional, statutory and judicial authorities, namely: section 254 C (1) (L) (iii) of the Constitution of the Federal Republic of Nigeria, 1999, as amended; Section 7 (1) (a), (3) & (4) of the National Industrial Court Act (NICA); Sections 2 (1) & (3), 4 (2), 8 and 9 of the Trade Disputes Act, (TDA) and the cases of Arinze & 6 Ors v. TUC & 10 Ors (Suit No. NICN/ASB/12/2015, judgment of which was delivered on 20/4/16); Anthony & anor v. Iloduba & ors (2010) 18 NLLR (Pt. 50) 229; National Union of Hotels and Personal Services Workers (NUHPSW) v. NUFBTE (2004) 1 NLLR (Pt. 2) 286; University of Ilorin v. Oluwadare (2006) 14 NWLR (Pt. 1000) 751, Akintemi v. Onwumechili (1985) 1 NWLR (Pt. 1) 68; Ajakaiye v. Idehai (1994) 8 NWLR (Pt. 364) 504; Saraki v. Kotoye (1992) 11-12 SCNJ 26; Alhaji Muhammadu Maigari Dingyadi and anor v. Independent National Electoral Commission and 2 ors (2011) 4 SC (pt. I) 1 and Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126.

 

The Defendant contended that Section 2 (1) of the Trade Disputes Act (TDA), CAP T8, LFN, 2004, excludes the jurisdiction of this court in intra and inter union disputes in the following words:

 

“Subject to the provisions of section 21 (3) of this Act, no person shall commence an action, the subject matter of a trade dispute or any inter or intra union dispute in a Court of Law.”

 

He submitted that this court has in a plethora of cases maintained that Claimants in intra-union (as well as inter-union disputes) are mandatorily obliged to fully exhaust the processes in Part 1 of the Trade Disputes Act (particularly sections 4 (2), 8 and 9) which involve mediation, conciliation and arbitration at the Industrial Arbitration Panel (lAP), before the jurisdiction of the NIC can be competently invoked. Any suit brought without exhausting Part 1 of the TDA has always been held to be incompetent and that the Court is deprived of jurisdiction. To buttress this point and emphasize the appellate jurisdiction of this in intra and inter union matters, the Defendant cited and quoted extensively from the cases of Arinze & 6 Ors v. TUC & 10 Ors (Supra) and NUHPSW v. NUFBTE (supra).   On this point, the Defendant also cited the views of Learned Justice B. B. Kayib, in an online article, “Overview of the Trade Disputes Act and its Application to Trade Disputes in Nigeria” as follows:

 

” … matters within the purview of section 7 (1) (a) (of the NIC Act), that is, matters in respect of ‘labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto’, which had to go through the processes of Part I of the TDA will continue to go through those processes even after the passing of the NIC Act. In other words, those issues which, for instance, the lAP entertained before the passing of the NIC Act will continue to be entertained by that body in the spirit of section 7 (3) of the NIC Act. It is not that the jurisdiction of this court has been ousted; only that it is contingent upon the processes of Part I of the TDA being exhausted. This means, therefore, that, like trade disputes, intra-union (and by extension, inter-union) disputes are contemplated under section 7 (1) (a) of the NIC Act for the purpose of section 7 (3) and so would NOT come under the purview of the original jurisdiction of this court.”

 

Secondly, it is the submission of the Defendant that Rule 5 (iii) (a) of the NULGE Constitution prescribes that an aggrieved member has the right to initiate court action but subject to an appeal to a higher organ, as a condition precedent before filing an action in court. The said Rule 5 (iii) (a) of NULGE’s Constitution, 2005 provides as follows:

 

“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.”

 

The Defendant further submitted that the interpretation of Rule 5 (iii), (ix) and (iii) of NULGE Constitution is to the effect that the Claimants are required, first, to refer the matter to the National Executive Council (NEC) for final determination. For the avoidance of doubt, Rule 5 (ix) of the NULGE’s Constitution was produced:

“In the event of any question arising as to the interpretations of any Rule of this Constitution, the issue shall be referred to the National Executive Council for final determination.”

 

He argued that the Claimants in this case, have failed, refused and/or neglected to observe the constitutional provisions before they rushed to court. It is the further argument of the Defendant that since the Claimants seeking the orders of this Court to enforce the provisions of NULGE’s Constitution, they are required, to first observe the conditions precedent provided by the same Constitution, before invoking the adjudicatory powers of this Court. He who seeks equity is obliged to first do equity.

 

On the premature nature of this suit and its effects thereof, the Defendant referred to the case of Univenity of Ilorin v. Oluwadare (2006) 14 NWLR (Pt. 1000) 751 at 773, where the Supreme Court reiterated the holding of the Court in Akintemi v. Onwumechili (1985) 1 NWLR (pt. 1) 68 at 85 that when a litigant prematurely takes issues belonging to the domestic affairs to the arena of litigation, the court would lack jurisdiction arising from the incompetence of the suit. Tabai, J.S.C., reiterated in the same case (Unilorin v. Oluwadare (supra) at page 781) that where a litigant:

 

“rushes to court without first exhausting all the remedies for redress available to him within the domestic forum, as was the case of Akintemi v. Onwumechili (supra) he would be held to have “jumped the gun” and the matter would be declared bad for incompetence”.

 

Similarly, Obaseki, J.S.C. in Akintemi v. Onwumechili (1985) 1 NWLR (Pt. 1) 68 at 85, had this to say:

 

“If a matter is justiciable in Nigeria, the domestic nature of the dispute does not, under the 1979 Constitution oust the jurisdiction of the Court. See section 6 (6) (b) of the 1979 Constitution. It can only mean that until the remedies available in the domestic forum are exhausted any resort to court action would be premature.”

 

It is his further contention that a premature action deprives the court of jurisdiction, citing the Supreme Court case of Ajakaiye v. Idehai (1994) 8 NWLR (Pt. 364) 504 at 525-526,532, in which it was held that where issues of domestic affairs are rushed to the court before exhausting domestic remedies, the court has not got the jurisdiction to take over, prevent or usurp the functions of administrative bodies. What the court is allowed to do is to pronounce on the validity, fairness or otherwise of the actions of such bodies, and only after all internal mechanisms or domestic remedies have been observed.

 

The Defendant also introduced the issue of Abuse of Court Process, arguing that since the Claimants have not exhausted domestic remedies before instituting this suit, the suit is an abuse of court process. He maintained that the Supreme Court in Saraki v. Kotoye (1992) 11-12 SCNJ 26) held that the employment of the judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent. Similarly, the apex court has held that the issues of abuse of court process have been identified as an issue of jurisdiction and the court thus reserves the prerogative and jurisdiction to protect itself from abuse of its processes. A case in point is Alhaji Muhammadu Maigari Dingyadi and anor v. Independent National Electoral Commission and 2 ors (2011) 4 SC (Pt. I) 1).

 

The Defendant thereafter urged the court to hold that the suit is an abuse of court process for failing to exhaust the conditions precedent for invoking the adjudicatory powers of this Court and to dismiss same as it has a duty to protect itself from abuse as enjoined in the case of Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142.

 

Issue NO. 2:

 

Assuming without conceding that the Court would hold that it has original jurisdiction to entertain the Plaintiffs’ Suit, whether this Honourable Court has the jurisdiction to entertain a suit which seeks orders simultaneously affecting the interests of a party that has not been joined as a party.

 

The Defendant submitted that this Court lacks the jurisdiction to entertain a suit which seeks orders simultaneously affecting the interests of a party that has not been joined as a party and cited a quotation in Bamgbose, 0.1. (2014) Digest of Judgments of the Supreme Court of Nigeria vol. 1 page 194, Authority Serial No. 2247:

 

“It is only when proper parties are before the court which makes a court competent to adjudicate on the suit. The issue of necessary party being before the court had been considered in various decisions of the court. A court has no jurisdiction to make an order which affects the interest of a person who has not been joined as party. Hon. Martin Okonta v. Kingsley Nonye Phillips & ors (2010) 7-12 SC 173.”

 

The Defendant stated that in this instance, reliefs sought will not only affect the Defendant but also simultaneously deprive NULGE of its State President in Akwa Ibom State without joining NULGE as a party. On the authority of Hon. Martin Okonta v. Kingsley Nonye Phillips & ors (supra), the Defendant prayed the court to resolved this issue in favour of the Defendant and declined jurisdiction to entertain this suit.

 

Alternatively, in the unlikely event in which the Honourable Court finds and holds that it has jurisdiction to entertain the Plaintiffs’ Suit and to make orders affecting the interests of a party that has not been joined, then the Defendant humbly invites the court to determine issue No. 3.

 

 

Issue No. 3:

 

Whether Originating Summons which the Plaintiffs used in commencing this action can competently invoke the jurisdiction of the Court where the nature of the material facts deposed to in the Affidavit in support (relating to deployment of the Defendant outside the Local Government Service) discloses the likelihood of disputable facts and hostile proceedings.

 

To the Defendant, the Originating Summons which the Claimants used to commence this action is incompetent to invoke the jurisdiction of the Court. This is because the material facts deposed to in the Affidavit in support (relating to deployment of the Defendant outside the Local Government Service) discloses the likelihood of disputable facts and hostile proceedings. In Ossai vs. Wakwah (2006) 4 NWLR (Pt. 969) 208 at 229, Paras. E – F, the Supreme Court held that:

 

“It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial court, … the nature of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings.”

 

The Defendant maintained that the same principle was reiterated in S.C.S. Co. v. Council, O.A.U, Ile-Ife (2011) 15 NWLR (Pt. 1269) 193 at 204 – 205, Paras. F – B; 205, Paras. G – H; 213, Paras. C – D (Ratio 1), as follows:

 

“Originating summons should only be applicable in circumstances where there is no dispute on questions of facts or even the likelihood of such dispute. Originating summons should not be used to initiate a suit in which there are contentious issues of fact. Where the affidavit of the plaintiff leaves matters for conjecture, and where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings, an originating summons is not appropriate. A writ of summons would suffice in such circumstances. Originating summons should be used only where the proceeding involves question of law rather than disputed facts. Even where the facts are not disputed, originating summons should not be used if the proceedings are hostile. In the instant case, there was likelihood of dispute of facts in the appellant’s suit. In the circumstance, it should not have been commenced by an originating summons. (Oyewumi v. Osunbade (2001) FWLR 1919; N.B.N Ltd. v. Alakija (1978) 9 – 10 SC 59; Ejura v. Idris (2006) 4 NWLR (Pt. 971) 538; Doherty v. Doherty (1968) NMLR 241 referred to.) (Pp. 204 – 205, Paras. F – B; 205, Paras. G – H; 213, Paras. C – D).”

 

As far as the Defendant is concern, an incompetent originating summons, as in this case, robs the court of competence and jurisdiction relying, yet again on S.C.S. Co. v. Council, O.A.U, Ile-Ife (supra) at 208, Paras. A – B:

 

 “An incompetent originating process by which an action is begun robs a court of its competence or jurisdiction to entertain the matter. (Madukolu v. Nkemdilim (1962) 2 SCNLR 341; E.B.N v. Halilco (Nig.) Ltd. (2006) 7 NWLR (Pt. 980) 568 referred to.] (P. 208, Paras. A – B).”

 

Applying this principle to the facts of this case, the Defendant submitted that the Claimants ought to have commenced their suit by way of Complaint. The counter affidavit of the Defendant has shown that the issue of his inter-service deployment (along with the intra service transfers of seventeen (17) other local Chairmen of NULGE) is not only a highly contentious matter but it is also a punitive measure against the defendant on the ground of his trade union activities. In addition, the union to which the Plaintiffs claim they belong has formally declared a trade dispute, which is going through the procedure prescribed under Part 1 of the Trade Disputes Act. And by the nature of the material facts disclosed, originating summons is not the proper way of initiating the instant suit.

 

CLAIMANTS’ REPLY ON POINTS OF LAW:

 

Reply on Issue No. 1:

 

Contrary to the contention that the subject matter of this suit is already the subject of a trade dispute being processed by the Ministry of Labour and Employment, the Claimant submitted that this Court that jurisdiction to entertain this suit.

 

To the Claimant, the present suit is not about trade dispute; it is for the interpretation of a document (the Constitution of NULGE). The Claimants are simply inviting this Court to determine whether in the face of the transfer or deployment (as the case may be) of the Defendant from the Local Government Service of Akwa Ibom State to the Bureau of Cooperative and Food Sufficiency, the Defendant can continue to function as the President of Nigerian Union of Local Government Employees (NULGE), Akwa Ibom State Chapter.

 

The Claimants posited that the Defendant tried so hard to give this court the impression that the present suit involves trade dispute by his depositions in paragraphs 12 – 36 of the Counter Affidavit by alluding to facts that have no bearing to the claims sought in the instant suit and urged the court disregard them for being irrelevant.

 

The Claimants further submitted that the Defendant misconceived the law when it copiously cited these authorities when the simple issue before this court is the interpretation of the Union’s Constitution. It is therefore submitted that the authorities cited by the Defendant have no relevance whatsoever in the present suit and should be discountenance.

The Claimants contended that the duty of interpreting laws, rules and regulations and constitutions of associations is reserved for the courts and this Court has the requisite jurisdiction to entertain this present suit under Section 254 (C) (1) (j) (vi) of the 1999 Constitution:

 

“254C (1) – Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in Civil Causes & matters:

 

(j)        relating to the determination of any question as to the interpretation and application of any-

 

(iv)        trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relation or workplace.”

 

It is submitted that section 254C (1) (I) (iii), which forms the main plank of the Defendant’s argument in issue 1, is totally unconnected with the issue at hand. The relevant constitutional provisions that govern this suit is section 254C (1) (j) (vi) and not 254C (1) (I) (iii) relied upon by the Defendant.

 

On the issue of not exhausting the domestic remedies before instituting the action in accordance with Rule 5 (iv) of NULGE Constitution and therefore robbing this court jurisdiction to entertain the matter, the Claimant argued that the law as stated by the Defendants is misconceived. The Claimant further argued that section 6 (6) of the 1999 Constitution bestows on every court (including this court) judicial powers. Further to that, the Constitution in Section 254C (1) (j) (vi) expressly empowers this Court to determine any question as to the interpretation and application of any trade union Constitution. It is therefore submitted that Rule 5 (ix) of the NULGE Constitution derogates from the interpretative powers and judicial powers of this Court under sections 254 c (1) (j) (vi) and 6 (6) of the 1999 Constitution respectively.

 

It is the further argument of the Claimants that since Rule 5 (ix) of the NULGE Constitution is inconsistent with Section 254 (C) I (j) (vi) of the Constitution, same is null and void. The Claimants cited Egbuchu v. Continental Merchant Bank Plc (2016) 8 NWLR (Pt. 1513) 192 at 212, para. B and Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531 at 647, para. D on the supremacy of the Constitution and urged the court declare Rule 5 (ix) null and void.

 

On the issue of abuse of Court process, the Claimants urged the court to discountenance argument as no process of law has been abused. The Claimants invitation to the court to interpret the relevant provisions of NULGE Constitution cannot by any stretch of imagination, amount to abuse of court process. According to the Claimant the facts of this case did not fit in the definition of the term given in the case of F.R.N v. Nwosu (2016) 17 NWLR (Pt. 1541) 226 at 293 as the multiplicity of proceedings between the same parties and in respect of same or similar subject matter, taken out by one party with the intention of overreaching or annoying the other party.

 

Reply on Issue No. 2:

 

On the lack of the jurisdiction to entertain a suit which seeks orders affecting the interests of a party that has not been joined, the Claimants urged the court to discountenance the argument of the Defendant on this subject while asserting that the order sought was against the Defendant and not the Nigerian Union of Local Government Employees (NULGE). In further reaction, the Claimants asserted that they are at liberty to sue whoever they want and it is not the business of the Defendant to direct them on who to sue.

 

It is the contention of the Claimants that NULGE is not a necessary party to this suit and it is only the non-joinder of a necessary party to an action that will rob the court of jurisdiction to entertain the matter. The Claimants cited the case of Anabaronye v. Nwakaihe (1997) 1 SCNJ 161 at 166, ratio 3 which defined a necessary party as a party whose presence is necessary for the effectual and complete determination of issues in a suit and submitted that this suit can be effectually and completely determined without the presence of NULGE.

 

In any case, the practice is always that where a party wants another party to be part of a particular suit, the party applies to the court for the joinder of the other party or where a party feels that his interest may be affected in a suit, applies to be joined in the suit. In the instant case, the Defendant has failed to do in this case. NULGE, on its part, has not applied to be joined as a party. This is because both the Defendant and NULGE know that NULGE is not a necessary party to this suit.

 

Reply to Issue No. 3:

 

As for the improper use of Originating Summons in the commencement of this suit,  the Claimants faulted the basis of the Defendant’s contention on the issue. The Defendant in paragraph 6 of his Counter Affidavit of 19th June, 2017 has disputed the term “transfer” and stated instead that the Defendant was “deployed.” To the Claimant, whether the Defendant was “transferred” or “deployed” is inconsequential. What is consequential is that the Defendant, who was hitherto working at the Eket Local Government Council but now working at the Bureau of Cooperative and Food Sufficiency. In the circumstance, it is submitted that the mode of Originating Summons employed by the Plaintiffs in the commencement of this suit is most appropriate mode for the interpretation of the clear words of the NULGE Constitution.

 

According to the Claimants, the law in determining whether the facts in support of originating summons are contentious, it is the nature of the claim and the facts deposed to in the affidavit in support of the claims. The case of Oguebego v. PDP (2016) 4 NWLR (Pt. 1503) 446 at 485, Para. C-D. is cited in that regard. For the Claimant, the affidavit in support of the claim are straight­forward and brook no dispute or hostile facts. It is submitted that taking a careful look at the claim of the Plaintiffs and the facts in support, the proper mode of commencing this action is by Originating Summons.

 

 

 

DECISION OF THE COURT:

 

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

 

My first port of call is whether this Honourable Court has the jurisdiction to entertain a suit which seeks orders simultaneously affecting the interests of a party that has not been joined as a party. The contention here is that this court lacks jurisdiction to entertain this suit because the reliefs sought by the Claimants would adversely affect the Nigerian Union of Local Government Employees (NULGE) who is not a party in this case.

 

It should be noted always that this is not an application for joinder by an interested party. It is also not application by the Defendant that a third party should be joined. Rather it is a challenge to jurisdiction for non-joinder of a party purported to be a necessary party. So the question here is, is NULGE a necessary party in this proceeding? The Supreme Court in a number of cases laid down the test for the courts as to who is a necessary party. See Lagos State v. Purification (2012) 12 S.C.N.J. 724-725, Anyanwoko v. Okoye (2010) 41 N.S.C.Q.R. 73 and Emmanuel Bello  v. INEC (2010) 41(pt.2) N.S.C.Q.R. 1390.  In the Case of Chief Abusi David Green v. Dr. E. T. Dublin Green (1987) 3 NWLR (Pt. 60) 480, Oputa, J.S.C., asked 4 questions regarding who is a necessary party:

 

“(a)     Is the cause or matter liable to be defeated by non-joinder?

(b)     Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant?

(c)     Is the 3rd party a person who should have been joined in the first instance?

(d)     Is the 3rd party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter.”

The Defendant who has the onus of bringing this matter within the above guidelines, only made a feeble assertion that the reliefs sought by the Claimants is capable of depriving NULGE of the President of its Akwa Ibom Branch without more. In support of this assertion however, the Defendant reproduced the reliefs of the Claimant verbatim. That is how it should be for the law is that, it is the claim of the plaintiff which determines who is the proper party. My lord, O. O. Adekeye, J.S.C. in the case of Emmanuel Bello v. INEC (2010) 41(pt.2) N.S.C.Q.R. 1389, held:

“It is the prerogative of the plaintiff to determine the defendants in a suit. The liability of each of the parties in the suit would be determined having regard to the pleadings and evidence led by the claimant in the light of the applicable laws. Therefore in order to determine whether a party is a proper defendant to a suit all the court needs to do is to examine the claim of the plaintiff before the court. It is the plaintiff’s claim that gives him the right to initiate the action for the alleged wrongful act.”   

 

I have examined the originating summons and the claims in this case and cannot find any relief made against NULGE as a union. I am therefore in agreement with the Claimant when he said the orders he sought for in this case, is against the Defendant only and he is at liberty to sue whoever he wants and it is not in the place of the Defendant to direct otherwise. After all, the law is settled that it is improper to join a party against whom the Claimant has no cause of action and against whom he had no claim. See the Supreme Court cases of Ayorinde  v. Oni (2000) 2 S.C.N.J.  19-20 and Ajayi v. Jolayemi (2001) 5 S.C.N.J. 271-272.

 

Assuming I am wrong, can the failure to join NULGE rob this court of the jurisdiction to entertain the suit? I think not. For a complete answer, I take refuge in the pronouncement of O. O. Adekeye, J.S.C., in Emmanuel Bello  v. INEC (supra) @ 1391-1392:

“The failure to join as a party a person who ought to have been so joined gives rise to the mistake of non-joinder of party. The fact that necessary party to the action has not been joined will not render the action a nullity. The proceedings of a court of law will not be a nullity on the ground of lack of competence of the court or lack of jurisdiction merely because a plaintiff fails to join a party who ought to have been joined. The court cannot dismiss a suit because a party who ought to have been joined was left out. Onibudo v. Abdullahi (1991) 2 N.W.L.R. (pt. 172) pg. 230, Atuegbu v. Awka South Local Government (2002) 15 N.W.L.R. (pt. 791) pg. 635,  Ayorinde v. Oni (2000) 3 N.W.L.R.(pt. 649) pg. 348, Ifeanyi Chukwu (Osondu) Ltd. v. Saleh Boneh Ltd. (2000) 5 N.W.L.R. (pt. 656) pg. 322, Orayemi v. Okunubi & Anor. (1965)1 ALL N.L.R. pg. 362, Warri Refinery & Petrochemical Co. Ltd. v. Omo (1999) 12 N.W.L.R. (pt. 630) pg. 312.”

 

From whatever angle one look at it, the issue is bound to be reconciled in favour of the Claimant. Not only did the Defendant failed to convince this court that NULGE is a necessary party, the state of the law on the subject does not support his position.

 

This takes me to the alternative issue of whether the Originating Summons used in this action can competently invoke the jurisdiction of the Court given the likelihood of disputable facts and hostile proceedings as disclosed in the Affidavit in support of the originating summons.

 

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

Now, the question here is, do facts in the instant case disclose disputed facts and likelihood of hostile proceedings? To answer this important question recourse must be made to the relief/claim of the Claimants as that is what determines if the matters submitted can appropriately be taken by originating summons. This is the Supreme Court case of Anyanwoko v. Okoye (2010) 41 N.S.C.Q.R. 69, per F. F. Tabai, J.S.C. It is evident that from the originating summons and the affidavit in support thereof, the Claimants’ reliefs are, at the risk of repetition, three:

  1. A declaration that by Rule 3 (1) (ii) of the Constitution of NULGE, 2005 (as reviewed), the Bureau of Cooperative and Food Sufficiency is not one of the institutions or parastatals or departments of government where members of NULGE can work.

 

  1. A declaration that having been transferred from the Local Government Service of Akwa Ibom State and deployed to the Bureau of Cooperative and Food Sufficiency, the Defendant has lost his membership of NULGE and therefore ineligible to continue to occupy the office of President of NULGE, Akwa Ibom State Branch.

 

  1. An order of court vacating Barr. Martins Effiong forthwith from the office of President, Nigeria Union of Local Government Employees (NULGE) Akwa Ibom State Branch, for reason that his membership of the Union has lapsed by operation of law as a result of his transfer from the Local Government Service of Akwa Ibom State to the Bureau of Co-operative and Food Sufficiency.

 

From the facts in support of this reliefs sought by the Claimants and the reaction of the Defendant thereof, I can identify only two areas of inconsequential disagreement. One is on the use of the words “transfer” and “deployment” in stating the sojourn of the Defendant from Eket Local Government to Bureau of Co-operative and Food Sufficiency by the Claimants and Defendant respectively. The other is on position of the Defendant while he was in Eket Local Government. While the Claimants said he was “Head of Personnel”, the Defendant averred that he was “Head of Local Government Service.” Either way, the fact remains that the Defendant is now working at the Bureau of Co-operative and Food Sufficiency which is outside the Local Government System. And this is the fulcrum of the Claimants’ action against the Defendant. In any case, are these disagreements sufficient enough to render the initiation of this suit by originating summons inappropriate? My answer is in the negative and I take judicial cover in the dictum of Niki Tobi, J.S.C. (of blessed memory) in (Mrs.) Amanda Peters Pam & Anor v. Nasiru Mohammed & Anor (2008) 16 NWLR (Pt. 1112) 1; (2008) 5 – 6 SC 5 (Pt.l ) 83:

 

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

 

There is yet another matter and this is the conduct of the Defendant in filing a Counter-Affidavit in spite of his misgivings on the impropriety of the originating summons as an initiating process. This act amounts to a waiver of right and a submission to procedural jurisdiction. My Lord, Mary Peter-Odili, J.S.C., captured this elegantly in Nagogo v. CPC (2012) 7 S.C.N.J. 308, when she said:

 

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

 

I cannot leave this issue without a comment on the Court of Appeal case of S.C.S. Co. v. Council, O.A.U, Ile-Ife (supra) cited by the Defendant. This is to the effect that an incompetent originating summons robs a court of its competence and jurisdiction to entertain the matter. But this is not the position maintained by the Supreme Court in several cases.  To the apex court the proper order a trial court should make where the action is wrongly commenced by way of originating summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case. In Osunbade v. Oyewunmi (2007) 5 S.C.N.J. 126, S. A. Akintan, J.S.C. has this to say:

“The main issue in the appeal is whether it was proper for the action to have been initiated by originating summons having regard to the fact that there were a number of disputed facts and issues. The law is settled that where there are disputed facts, such actions could not be initiated by originating summons.  Similarly, I believe and hold that the proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case.”

Again, Suleiman Galadima, J.S.C. in Atago v. Nwuche (2012) 12 S.C.N.J. 1008

held on the same issue:

 

“The form of commencement of an action does not necessarily make it incompetent. It does not matter whether the action was begun by writ of summons or by originating summons. What is most important is the question of justice of the case.”

 

It goes without saying and in the face of these formidable authorities, the case of S.C.S. Co. v. Council, O.A.U, Ile-Ife (supra) cited by the Defendant will pale into insignificance and have to take the proverbial back seat.

 

For all the foregoing, I strongly believe that the originating summons adopted in this suit is very appropriate in initiating this suit and I so hold.

 

The next is the main issue for determination by the Defendant. For clarity, I will reproduce it again: Whether the court has original jurisdiction to hear and determine the Plaintiffs’ intra­-union dispute suit where the mandatory provisions of Part I of the Trade Disputes Act have not been exhausted and the existing trade dispute declared by NULGE, which is being processed under Part 1 of the Trade Disputes Act is yet to run its full course.

 

This issue as presented by the Defendant are actually two fold. One is the court lacking original jurisdiction because the subject matter of the suit is a trade dispute. The other is the failure of the Claimants to refer the matter to the National Executive Council of NULGE before coming to court. I will take the issues in turns.

 

On the first issue, the question that agitates the mind is, does this suit as presently constituted allow the Defendant to raise this issue for determination by this court? For an answer recourse had to be made to some basic principles inherent in jurisdiction. First, jurisdiction is the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are founded or to the kind of relief sought. See the case of Goldmark v. Ibafon (2012) 3 S.C.N.J. 597. Second, jurisdiction of a court is donated by the Constitution, Statutes creating it or other enabling statutory provisions. See Adelakan v. Ecu-Line NV (2006) 5 S.C.N.J. 144. Third, it is the claim of the plaintiff that determines the jurisdiction of the court to entertain a suit before it. See the cases of Alsthom. v. Saraki (2000) 4 S.C.N.J. 255-256, NV. Scheep v. MV. S. Araz (2000) 12  S.C.N.J. 67, Abu v. Odugbo (2001) 7 S.C.N.J. 299, Edjerome v. Ikine (2001) 12 S.C.N.J. 215, Aremo II v. Adekanye  (2004) 7 S.C.N.J. 231, A.D.H.L. v. Amalgated (2006) 5 S.C.N.J. 41, Abdulhamid v. Akar (2006) 5 S.C.N.J. 54, Balogun v. Ode (2007) 2 S.C.N.J. 126-127, Obi v. INEC (2007) 7 S.C.N.J. 24-25, Oduko v. Ebonyi  State (2009) 4 S.C.N.J. 85, Oloruntoba-Oju v. Abdul-raheem (2009) 6 S.C.N.J. 30, Adetayo  v. Ademola (2010) 42 (pt. 2) N.S.C.Q.R 1052-1053, Adetayo v. Ademola (2010) 42 (pt. 2) N.S.C.Q.R. 1065, Elelu-Habeeb v. A-G, Federation (2012) 2 S.C.N.J. 561-562 and Agbule v. Warri Refinery (2012) 12 S.C.N.J. 810 to mention but a few. On this principle which is pertinent to the instant case, Bode Rhodes-Vivour, J.S.C., hit the nail on the head, in the case of PDP v. Sylva (2012) 4 S.C.N.J. 199, when he said:

“Jurisdiction of a court to entertain a suit is resolved by a scrupulous examination of the writ of summons, the statement of claim and the reliefs claimed. No other document should be examined. Where the originating process is an originating summons the affidavit filed in support of the originating summons serves as the plaintiff’s pleadings (statement of claim). Jurisdiction would be resolved by examining only the originating summons, the reliefs contained therein and the affidavit filed in support.”

From the foregoing, it is imperative to examine the originating summons of the Claimant to see if the reliefs therein can accommodate the issues raised by the Defendant. It is quite clear from the reliefs sought by the Claimants that same is rooted on the interpretation of the Constitution of NULGE (Exhibit C) and the fate of the Defendant as President of NULGE Akwa Ibom Branch who is now working outside the Local Government System. Neither the originating summons or the affidavit in support disclosed any reliefs against NULGE as a trade union or any issue of trade dispute. I am therefore of the firm view that the heavy weather made by the Defendant on original jurisdiction, trade dispute, inter/intra-union dispute and all the copious authorities thereof are of no moment and are hereby discountenanced. To do otherwise against the background and the litany of authorities cited will amount to “judicial rascality” which to borrow a cliché from my Christian brothers “is not my portion.” Based on the originating summons and in view of the provisions of section 254 (C) (j) (vi) of the 1999 Constitution, this court is eminently clothed with jurisdiction to entertain this suit being the interpretation of a union’s Constitution.

 

Closely connected with this is the second prong of the issue raised by the Defendant. This relates to the condition precedent set out in Rules 5 (iii) (a) and 5 (ix) of the NULGE Constitution (2000) before any aggrieved member can institute a suit. For clarity and emphasis the rules are reproduced:

 

Rule 5 (iii) (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.”

 

Rule 5 (ix):

“In the event of any question arising as to the interpretations of any Rule of this Constitution, the issue shall be referred to the National Executive Council for final determination.”

 

It is therefore the contention of the Defendant that since the Claimant did not comply with these rules, the case as presently constituted is premature for failure to exhaust domestic remedies of the union and this court does not have the competence to entertain same. To the Claimants the provisions of the NULGE Constitution cannot override the clear provisions of the 1999 Constitution in sections 254 (1) (j) (vi) and 6 (6) dealing with interpretation and judicial powers of this court respectively. And since Rules 5 (iii) (a) and (ix) of the NULGE Constitution is inconsistent with 1999 Constitution, the Defendant invited the court to declare the rules as null and void. I am afraid, I cannot accept that invitation because that is not my understanding of the law. It is settled law that where a statute prescribes a legal line of action for the determination of an issue, be it administrative, chieftaincy or any other matter, the aggrieved party must exhaust all the remedies before going to court. See the case of Owoseni v. Faloye (2005) 7 S.C.N.J. 370 per Dahiru Mustapher, J.S.C. (later C.J.N. and of blessed memory). A condition precedent like Rules 5 (iii) (a) and (ix) of the NULGE Constitution merely puts the jurisdiction of the court on hold pending the compliance with the condition. This position of the law was given judicial approval in the case of Nigercare  v.  Adamawa (2008) 3 S.C.N.J. 36 thus:

 

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

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

Judgment entered accordingly.

 

 

………………………………………

HON. JUSTICE M. A. NAMTARI

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