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COMRADE SOYEIBIBO H. FUBARA -VS- PETROLEUM AND NATURAL GAS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

 

Date: January28, 2020        Suit No: NICN/PHC/01/2019

Between:

Comrade Soyeibibo H. Fubara                                                     ———-Applicant

And

 

  1. Petroleum and Natural Gas SeniorStaff

Association of Nigeria (PENGASSAN)

  1. Comrade Terry AkpoebidimieNisakpo

(Chairman, Nigerian National Petroleum Corporation

Research and Development Division Port Harcourt,

Chapter Executive Committee of (PENGASSAN).

  1. Nigerian National Petroleum Corporation                    ———    Respondents

Research and Development Division Port Harcourt,

Chapter Executive Committee of (PENGASSAN)

  1. Petroleum and Natural Gas Senior Staff

Association of Nigeria, Port Harcourt

Zonal Executive Council of (PENGASSAN)

  1. The National President (PENGASSAN)

 

Representation:

  1. J. Anabraba for the Claimants.

R.U. Ezeani for the Defendants.

 

COURT’S JUDGMENT

  1. On January 8, 2019 the Applicantcommenced this action against the Respondents by way Originating Summons for the determination of the following questions:
  2. Whether having regard to the clear, unequivocal and sacrosanct provisions of Rule 19. 5 of the Petroleum and Natural Gas Senior Staff Association of Nigeria Constitution, 2013 as amended (which provides for the eligibility of any elected officer who has served two consecutive tenuresatoneorgantobere-electedintothatorganafterthe expiration of one tenure), the 2nddefendant who had served for two consecutive tenures in the 3rdDefendant’s Executive Committee, was qualified or eligible to be elected for the 3rdtenure as the Nigerian National Petroleum Corporation, Research and Development Division, Port Harcourt, Chapter Executive Committee, Chairman, of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN).

 

  1. Whether by virtue of Rule 19.5 of the constitution of the Petroleum and Natural Gas Senior Staff Association of Nigeria, 2013 as amended; the purported Election conducted by the 4thdefendant on the 20thMarch 2018, which brought about the emergence of the 2nddefendant as the Chairman of the Nigerian National Petroleum Corporation Research and Development Division, Port Harcourt, Chapter Executive Committee of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN), is not a nullity for being in gross violation of rule 19.5 of the (PENGASSAN) constitution, 2013 as amended.

 

  1. In the event that this Honourable Court answers issue No. 1 inthe negative and issue No. 2 above in the affirmative, whether all or every appointment(s) and nomination(s)made bythe2nddefendant withinthe period he acted as chairman of the Nigerian National Petroleum CorporationResearchanddevelopmentDivisionPortHarcourt,Chapter Executive Committee of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN), should be declared null and void.

 

  1. From the Origination Summons, the applicant is seeking for the following reliefs from the respondents:
  2. A Declaration that by virtue of Rule 19.5 of the Petroleum and Natural Gas Senior Staff Association of Nigeria Constitution, 2013 as amended; the 2ndDefendant was  not  eligible  to  have  contested  for  the Chairmanship position of the Nigerian National PetroleumCorporation Research and Development Division Port Harcourt, Chapter Executive Committee ofthe 1stdefendant in theelectionconducted atPort Harcourt on the 20thMarch, 2018 by the 4thdefendant.
  3. A Declaration that the Nigerian National Petroleum Corporation, Research and Development Division Port Harcourt, Chapter Executive Committeeof(PENGASSAN) ChairmanshipElection,conductedbythe4thdefendant on the 20thMarch, 2018is a nullity and of no effect whatsoever.

iii.      AnOrderoftheHonourableCourtdirectingthe1stand4thdefendantto immediately conduct a fresh Chairmanship Election at the Nigerian National Petroleum Corporation, Research and Development Division Port Harcourt, Chapter Executive Committee of (PENGASSAN).

  1. AnOrderofperpetualinjunctionagainstthe2nddefendantfromfurther holding himself out, parading, acting even through his agents or previse as the Nigerian National Petroleum Corporation Research and Development Division Port Harcourt, Chapter Executive Committee Chairman of (PENGASSAN).
  2. ADeclarationthateveryappointment(s)ornomination(s)madebythe2nddefendant withintheperiod he acted as the said Chairman of the 3rddefendant is null and void and of no effect whatsoever.

 

The Originating Summons is supported by statement and a 19 paragraphed affidavit deposed to by the applicant together with a written address.

  1. Preliminary Objection

On March 29, 2019 counsel to the respondents filed a Notice of Preliminary Objection pursuant to Order 5 Rule 2, Order 17 Rule 1(1) & Order 18 Rules 2(2) of the National Industrial Court of Nigeria(Civil Procedure) Rules, 2017 and under the Inherent Jurisdiction of the Court; praying for the following orders:

  1. An Order striking out the names of the 3rd, 4th and 5thdefendants
  2. An Order striking out this suit for lack of jurisdiction.
  3. An Order dismissing this suit as an abuse of Court process.
  4. Such Order or further Order(s) as the Honourable Court may deem fit to make in the circumstances.

 

  1. The grounds of the Notice of Preliminary Objection are:
  2. That the 3rd, 4thand 5thdefendants are not juristic persons but mere organs of the 1stdefendant/Applicant.
  3. That this Honourable court lacks the jurisdiction to entertain this suit.

iii.      This suit is an abuse of court process

 

In support of the Notice of Preliminary Objection is a 4 paragraphed affidavit deposed to by Emmanuel Akinyemitogether with a written address wherein counselformulated issues for determination this way:

  1. Whether the 3rd, 4thand 5thdefendants can be sued.
  2. Whether this court lacks jurisdiction to entertain this suit.

iii.            Whether the suit is an abuse of court process.

 

  1. Arguing issue one, counsel referred the court to paragraphs 4 and 5 of the Applicant’s Affidavit in support of the Originating Summons and submitted that the 3rdand 4threspondents/applicants being organs/branches of the 1strespondent/applicant have no live outside the 1strespondent and that they are not juristic persons capable of being sued; citing Agbanelo v Union Bank of Nigeria Warri Branch [2000] 7 NWLR (Pt. 666) 534 SC; White Diamonds Property Development Co. Ltd v. Trade Wheels Ltd [2018] LPELR- 44572(CA) andIyke Medical Merchandise v. Pfizer Inc&Anor [2001] 10 NWLR (Pt. 722) 540. On the 5threspondent, counsel submitted that it is just a title given to an office/organ of 1strespondent and lacks juristic personality. He went on that the 1st, 3rd, 4th and 5threspondents in this suit are one and the same person. To him, it is incongruous to name a person twice as a respondent in the same case, which bothers on abuse.

 

  1. Arguing issue two of whether this court lacks jurisdiction to entertain this suit, counsel referred to the case of Rivers State Govt. v. Specialist Konsult[2005] 7 NWLR (Pt.923) 145 SC P.G 171-172 paragraphs H-A. He submitted that the due process of law, which is the condition precedent to the exercise of jurisdiction has not been fulfilled before the filing of this case and that the applicant in the instant case failed to exhaust internal dispute resolution mechanisms of PENGASSAN before filing of this case as he did not go through conciliation and arbitration under Part  1  of  the  TDA and  as provided for in the constitution of the respondents before filing the case before this court; citing NUPPPPW v. Thomas Wyatt unreported Suit No: NICN/LA/52/2013 judgment of which was delivered on February 24, 2014 by Oyewumi J; Section 7(3) of the National Industrial Court Act, 2006 (NICA); Ss.2, 4 & S.4 (2) of the Trade Dispute Act Cap T8 LFN 2004 and generally Part 1 ofTDA.

 

  1. Counsel went on that the condition precedent before the court can assume jurisdiction over matters stated in section 7(1)(a) of the National Industrial Court Act,  2006 the  internal  dispute  mechanism agreed to by or binding upon the parties must be exhausted. Also, the processes of mediation, arbitration or conciliation pursuant to the TDA must be exhausted before a suit such as this is commenced before this court. He maintained that these conditions precedent were not fulfilled before the Claimant/Respondent rushed to this court to institute this matter; at least there is no pleading on that whatsoever, citing Schedule 3 to the PENGASSAN Constitution and Section 7(3) of the National Industrial Court Act, 2006 (NICA). He continued that the constitution of an association represents a collective binding agreement between the members and the Association, relying onChief Nwanelo Bernard Anaelo&Ors v. Chief Victor Maduagwuna&Anor (2018) LPELR-44884(CA).

 

  1. Counsel submitted that the general rules cannot over ride, govern or control the specific rules made in the constitution for bringing up or settling election disputes. He went on that the maxim is generaliaspecialibus non derogant; meaning,the general rules must yield to special or specific rules on a matter citing Schroeder & Co v. Major & Co [1989] 2 NWLR (Pt. 101) SC 1 andAbubakar v. A.G. Federation [2007] 6 NWLR (Pt. 1031) SC 626. To him this case is premature and the court lacks jurisdiction to entertain it.

 

  1. Arguing issue three of whether the suit is an abuse of court process, counsel submitted that having not exhorted the internal or available domestic remedies before the filing this suit; this case is an abuse of court process, as it was filed with the intention to harass the defendant, citingFasakin Foods (Nig.) Co Ltd v.Shosanya [2003] 17 NWLR (Pt. 849) CA 237 andSaraki v. Kotoye [1992]11-12 SCNJ 26: [1992] 23N.S.C.C (Pt.3)331.

 

  1. Responding to theNotice of Preliminary Objection the applicant/respondent filed a 5 paragraphed counter affidavit and a written address wherein counsel formulated one issue for determination of the court this way:

Whether in the circumstances and fact of this case, the Honourable Court has the Jurisdiction to entertain this suit.

  1. Arguing the said issue, counsel submittedthat the 3rd,4thand 5thRespondents are organs of the 1stRespondent and that the 5thRespondent being the national head; it can be sued in their capacity considering the exercise of their functions and powers vis-a-visthe rights of third party. Counsel went on that assuming without considering that the 3rd,4thand 5thRespondents cannot be sued in the capacity upon which they were sued, it is his argument that it would amount to an injustice if such third party as the Claimant/Respondent in this case cannot seek for redress on any wrong done inthe circumstances of this case; he referred the court to Carlen (Nig.) Ltd v. University of Jos [1994] 1 NWLR (Pt. 323) pg. 658 paragraphsC-Calso toratio8; the Lord Denning M. R’s case of Willis &Anorv. Association of University of the British Common Wealth [1964] 2 All E.R 39 and  to Rule 15.9 of the PENGASSAN constitution 2013 as amended.

 

  1. Counsel further argued that Rule 15.9 of the PENGASSAN constitution shows that the 4thdefendant wields enormous powers in the activities of the 1stdefendant’s Association and that in the circumstances of this case, it can sue and be sued in that capacity. He further argued that the cases of Agbanelov. Union Bank of Nigeria Warri Branch [2000] 7 NWLR (Pt. 666) 534 and Iyke Medical Merchandise v. PFIZER Inc&Anor [2001] 10 NWLR (Pt. 722) cited by counsel to the defendants are not applicable considering the circumstances of the case at hand and considering the fact that no two cases are exactly the same because cases are decided based on their individualities andpeculiarities.
  2. On the 2ndissue raised by the Defendants/Applicants that the suit has not been brought by due process and therefore incompetent on the basis that the Claimant/Respondent has not satisfied the condition precedent prescribed by S.7(3) of the National Industrial Court Act, 2006 and the provisions of Part 1 of the Trade Dispute Act Cap T8 Laws of the Federation 2004; counsel submitted that the subject matter of this suit which has to do with the eligibility of person and tenure of an elected official is not within the confines of trade dispute as contemplated by S.7 (3) of the NICAct,2006and inPart1oftheTDA, 2004. He went on that the dispute between the parties in this action is not a trade dispute as averred by the Defendants/Applicants citing the case ofNational Union of Road Transport Workers v.Ogbodo [1998] 2 NWLR (Pt. 537) 189.

Counsel also argued that assuming but not conceding that the definition of trade dispute covers the facts and circumstances of this case; to him, the Claimant/Respondent activated the internal dispute resolution mechanism vide his exhibits “F1” “F2”, G1, G2”, J1” and J2” respectively, annexed to the Claimant/Respondent’s affidavit in support of the originating summons filed on January 8, 2019.

  1. On the issue that the Claimant failed to exhaust all internal dispute resolution mechanism provided by the constitution of the 1stDefendant’s association, counsel submitted that bythe claimant’s exhibits“F1”“F2”,G1,G2”,J1”andJ2”;theinternaldispute resolution mechanism set out in the 1stdefendant’s constitution was activatedbytheClaimant/Respondent;also byconsideringthefactsthat all officers were copied constructive notices of the complaint as it relates to the subject matter of this suit.Counsel further contended that assuming but not conceding that the Claimant did not ventilate his grievance through the appropriate channel as alleged by the defendants, he submitted that schedule 3 of the PENGASSAN constitution on the entire dispute resolution mechanism is in contravention of sections 36 and 6 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

 

  1. Counselreproducedschedule3of Rule3.8ofthe PENGASSAN constitution; which to him, contravenes citizens’ right to fair hearing and right to institute an action in a competent court of law,relying onSeyiGambo&Anor v. the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) & OR,unreported delivered by Hon. Justice SanusiKado, in SuitNo:NICN/ABJ/12/2016; SirIkechukwu Foster & 3 Orsv. PENGASSAN & 6 Orsin Suit No: ABJ/185/2017 also unreported. He went on that Schedule 3, Rules 11.3.20, 11.3.21, 11.3.22 of the PENGASSAN constitution 2013 as amended, section 7(3) of the National IndustrialCourtAct,2006andPart1oftheTradeDisputeAct LFN 2004 cannot be superior to section 6(6) (c) of the Constitution of the FRN, 1999 as amended which vested Judicial powers on the Court.

 

  1. On the issue of this suit being an abuse of Court process, counsel adopted his earlier argument and further submitted that this case is not an abuse of court processes, relying ofFasakinFoods(Nig.)Co.Ltdv.Shosanya[2003]17NWLR(Pt.849) andSaraki v.Kotoye[1992] 11-12 SCNJ, 26: [1992] 23 NSCC (Pt. 3) 331.

 

  1. Counsel to the respondent/applicant filed reply on point of law in respect of the Preliminary Objection and contended that in the counter affidavit of theapplicant/respondent,he introduced new facts and exhibit, which he relied on in his arguments. He went on that it is the law that only averments contained in the originating summons, the witness statement on oath and exhibits are relevant for the determination of preliminary objection, citingOjukwu v. Yar’Adua [2008] 4 NWLR (Pt. 1078) 435 at Pp. 454- 455, paragraphs A-B;Adegun v. Ayinde [1993] 8 NWLR (Pt. 313) 516 andOkoiv. Ibiang [2002] 10 NWLR 776 (Pt.468) paragraphs G-H.

 

  1. On the juristic status of the3rd,4thand 5thdefendants; counsel stated that the law is that only a legal person can sue or be sued and that the power to sue or be sued may be conferred expressly or by necessary implication, citingChief GaniFawehinmiv. Nigerian Bar Association &Ors No. 2 [1989] 2 NWLR (Pt.105)558. He contended that the case of Carlensv. University of Jos which the clamant relies on does not apply to this case because the Court of appeal in that caseheld that the Vice Chancellor couldbesuedbecausealawi.e.astatutevestedhimwithpowerstosueor be sued by necessary implication, contrary to the position of the 3rd-5thdefendants in this case.

 

  1. Onthe compulsory arbitration, mediation or conciliation prior to litigation/adjudication as prescribed by section 7(3) of the NIC Act, 2006 and inPart 1 of the TDA, counsel submittedthat intra-union disputes are compulsorily required to go through the processes stipulated in Part 1 TDA;citingComrade Undeagalanya Anthony Anor v. Comrade Francis Llodua& 11 Ors unreported suit no: NIC/36/2008 delivered on January 20, 2009 and to the case ofAssociationofSeniorStaffofBanks, Insurance and Financial Institutions (ASSBIFI) v. United Bank of Africa &Ors unreported Suit No: NIC /12/2007 delivered on January 24, 2008.

 

  1. On the provisions of Schedule 3 of the PENGASSAN constitution 2013 as amended as violating citizens’ right to fair hearing, counsel referred the court toAdvertising Practitioners Council of Nigeria (APCON) v. The Registered Trustees of International Covenant Ministerial Council (ICMC) & ORS [2010] LPELR-3630(CA). To counsel, the doctrine of exhaustion of internal remedies does not oust the jurisdiction of the court or affect the right to access a court as enshrined in section 36(1) of the Constitution of the FRN, 1999 as amended; it merely prescribes some procedural steps to be taken to resolve a dispute before embarking on actual litigation; citing Prosafe Production Services Ltd v. Osbir [2018] 18 NWLR (Pt.1650) 86 @112 andOwoseni v. Faloye [2005] 14NWLR (Pt. 946) 719.

Summary of the Substantive Case; the Originating Summons

  1. The Originating Summons is supported by statement, a 19 paragraphed affidavit deposed to by the applicant and a written address wherein counsel formulated a sole issue for determination this way:

Whether having regards to the facts and Exhibits as disclosed in the Affidavit in Support of the Originating Summons and in view of the Relevant Provisions of the Petroleum and Natural Gas Senior Staff Association of Nigeria constitution 2013 as amended, the Claimant is not entitled to the reliefs Sought in this action.

  1. Counsel elected to argue the above issue together with the three issues formulated in the Originating Summons. He maintained that the provisions of Rule 19. 5 of the Petroleum and Natural Gas Senior Staff Association of Nigeria Constitution 2013, as amended is on the eligibility of any elected officer who has served two consecutive tenures at one organ; to be re-elected into that organ after the expiration of one tenure. He contended that the 2ndRespondent, who had served for two consecutive tenures in the 3rdRespondent’s Executive Committee was not qualified to be elected or eligible for the 3rdtenure as the Nigerian National Petroleum Corporation, Research and Development Division, Port Harcourt, Chapter Executive Committee Chairman. He submitted that this issue is to be answered  in  the  negative  and  that  the  2nddefendant  was  not  eligible  as  at  March 20,2018  to  run  for  the chairmanship position of their Chapter Executive Committee Election of PENGASSAN.

 

  1. Counsel referred to paragraphs 5,6,7,8,9,10,11,12 and 13 of the affidavit in support of this originating summonsand the Exhibits attached thereto. He submitted that at the expiration of the 2nddefendant’s position in the year 2015, the 2nddefendant contested for the Nigerian National   Petroleum Corporation, Research and Development Division Port Harcourt, Chapter Executive Committee Chairmanship Election, which the 2nd defendant won and served in that respect for one clear tenure of three years that ended in March 2018. That the law is settled that, where the provision of a document is clear and unambiguous, there is no need to give them any other meaning than its ordinary natural and grammatical meaning, citing Amadi v. INEC [2013] 4 NWLR (Pt. 13 45).

 

  1. Arguing issue two in the Originating Summons on whether by virtue of Rule 19.5 of the constitution of the Petroleum and Natural Gas Senior Staff Association of Nigeria, 2013 as amended;counsel contended that the purported  Election  conducted  by  the  4thRespondent  on March 20, 2018; which brought about the emergence of the 2ndRespondent as the Chairman of the Nigerian National Petroleum Corporation Research and Development Division, Port Harcourt Chapter Executive Committee of the Petroleum and natural Gas Senior Staff Association of Nigeria (PENGASSAN), is not a nullity for being in gross violation of Rule 19.5 of the (PENGASSAN), Constitution 2013 as amended. Counsel referred the court to paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the supporting affidavit and that the said actions carried out by the 2nd and 4thRespondents are tainted with illegality and were done mala fide. He maintained that all transactions emanating from illegality are void.

Referring to Rules 2.2 and 2.4 of the (PENGASSAN) Constitution 2013 as amended, counsel submitted that no member of the association is above the Constitution of (PENGASSAN), not even the 2nddefendant on record. The said election is a nullity for being in gross violation of rule 19.5 of the (PENGASSAN) constitution 2013 as amended; and that the 2nddefendant was not  eligible  to  have  contested  for  the  position  of  the Chairman of the NNPC, R&D Port Harcourt Chapter Election Conducted on the  20thMarch,  2018  having  breached  rule  19.5  of  the  PENGASSAN constitution.

  1. On issue three3 of the originating summons that in the event that this Honourable Court answers issue No. 1 in the negative, and issue No. 2 above in the affirmative, whether all or every appointment(s) and  nomination(s)  made  by  the  2nddefendant  within  the period he acted as Chairman of the Nigerian National Petroleum Corporation Research and Development Division Port Harcourt, Chapter Executive Committee, of the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN), should be declared null and void.

Counsel readopted his arguments on issues (1) and (2) and urged the court to answer issue three (3) in the affirmative that 2nd defendant’s appointment(s) and nomination(s)is null and void because such cannot stand the test of time in law having violateda mandatory provision of the (PENGASSAN) constitution 2013 as amended. Counsel further argued that the 2nd defendant not being qualified to run for the said election on 20thMarch 2018 and his inclusion in the said election was against the rule of law, unconstitutional null and void.Therefore it means that every action(s) carried out by the 2nddefendant within the period he acted as the chairman of the 3rd defendant’s Executive Committee as its Chairman is a nullity ab initio and of no effect whatsoever, citing of Macfoy v.U. A. C [1962] AC 150.

  1. Responding to the Originating Summons, the respondents/applicants filed a 4 paragraphed counter affidavit deposed to by one Sarah Sanni together with a written address in which counsel formulated issues for determination of the court as followings:
  2. Whether this suit is Justiciable.
  3. Whether the claimant consented to the election of the 2nddefendant or waived his right to complain about it.

 

  1. Arguing the first issue, counsel submitted that thissuit is not justiciable and that it is an academic exercise.Therefore, this Honourable lacks the requisite jurisdiction to entertain it, citing Rivers State Govt. v. Specialist Konsult [2005] 7 NWLR(Pt.923)145SCpages171-172paragraphsH-A; Ibarahim v. Gaye [2002] 13 NWLR (Pt. 784) 267 @296&LawrenceElendu&Anor.v.FelixEkwoaba&Ors.[1995] 3 NWLR (Pt. 386) at pages 704.

 

  1. Counsel went on to refer the court toparagraph 4(q) of the counter affidavit and contendedthat the 2nd defendant voluntarily resigned from the position of the chairman of the 3rd defendant on the 31stof January, 2019 at an emergency congress of the Nigerian National Petroleum Corporation (NNPC) (3rddefendant) after the claimant continued to harass and frustrate the administration. He continued that by virtue of the resignation, the activities of the 2nddefendant such as rescinding the appointment of ex-offico members of the executive became a mere academic exercise. To counsel, it is well settled that a Court of law exists to adjudicate between parties in relation to their competing legal interests and never to engage in academic discourse no matter how erudite or beneficial it may be to the publicatlarge; citing Bhojwaniv.Bhojwani[1996]6NWLR(Pt.457) 661;Agbakoba v. INEC [2008] 18 NWLR (Pt. 1119) 489 &Salikv. Idris [2014]15 NWLR (Pt.1429) 36 @61.

Counsel continued that the granting of the injunction against the 2nddefendant will be futile since the act complained about no longer exists in its entirety. He cited in support the case ofOdufuwa v. Johnson [1971]1All NLR 142 andAG v. Colney Hatch Lunatic Asylum [1868] 4 CH P146. He contended that this suit has been overtaken by events in its entirety and that it will be of no effect to the positionofeitherpartyasnoneofthereliefssoughtbytheclaimantcan be granted in the circumstances.

  1. Arguing issue two ofwhether the claimant consented to the election of the 2nd defendant or waived his right to complain about it; counsel submitted that the claimant contested at the said election for the position of the chairman in opposition to the 2nddefendant. The claimant alongside other contestants on the day of the election voluntarily stepped down for the 2nddefendant, after which the 2nddefendant was declared the winner and the chairman. Furthermore, that the claimant aware of the ineligibility of the 2nddefendant to contest in the election, failed to raise a petition at the floor of the election, also failed to submit any petition with the election panel created by the constitution of PENGASSAN; clause 11.3.222 of the constitution of PENGASSAN as amended provide all petitions which are not made on the floor of the conference shall be submitted to the panel in writing not more than two weeks from the date of the elections.

 

  1. Counsel went on that the claimant was appointed by the 2ndRespondent as an ex officio member of his administration, this duty and position was accepted by the claimant thereafter, he attended a one-week induction course held in Owerri in 2018 for the newly elected executives. Counsel maintained that a party who has benefitted from a wrong is not allowed to come back to complain of its illegality. Hence, he submitted that the claimant has waived his right to make this complaint, citing the cases of Ariori&Ors v. Elemo [1983] 1 SCNLR 1; Fasadev. Babalola [2003] 11 NWLR (Pt.830) 26 at 47 andPDP &Ors v. Ezeonwuka&Anor [2017] LPELR-42563(SC). Counsel submitted that the claimant was aware of the said ineligibility and consented to the election of the 2nddefendant; by so doing he has waived his righthence, he has no legal right toseek redress from this court on the same issue.

 

  1. In reaction to the defendants’ counter affidavit and written address, counsel to the claimant further filled a 3 paragraphed further affidavit and a Reply on Points of Law wherein counsel referred the court to Owuru v.Adigwu [2018] 1 NWLR (Pt. 1599) particularly at page 27 paraE;Inakoju v.Adeleke [2007] 4 NWLR (Pt. 1025) 427 at 684 – 685;Ogoejeofo v. Ogoejeofo [2006] 3 NWLR (Pt. 966) 205 andMoses Ola & Sons v. B.O.N. Ltd. [1992] 3 NWLR (Pt. 229) particularly at page 390 paragraphs B-D. Thereafter, counsel went on to reargue his case in the said rely on point of law.

 

Counsel to the applicant further filed a reply on Points of Law to the Respondents ‘address in opposition to the originating Summons, in which he too reargued his case.

 

  1. COURT’S DECISION

I have painstakingly read through the facts of this case, the questions raised in and against the Preliminary Objection together with the contentions for and in counter of the originating summons before the Court. From all of this, I am of the considered view that the following issues need to be resolved by the Court in this case:

  1. ON THE PRELIMINARY OBJECTION
  2. Whether or not the 3rd, 4th and 5threspondents can be sued.
  3. Whether the nature of dispute between the parties is one that qualifies as trade dispute under section 48 of Trade Dispute Act and so requires going through mediation, conciliation and arbitration under sections 2 and 4 of the TDA.

iii.         Whether or not this case is competent

  1. Whether or not the suit is an abuse of court process.

 

  1. ON THE SUBSTANTIVE MATTER; THE ORIGINATING SUMMONS

Whether or notthe applicant is entitled to the reliefs he is seeking for in view of the provision ofPENGASSAN’s constitution,2013.

  1. Before going to the merit or otherwise of the preliminary objection and those of the originating summons, I need to make some points. At page 152 of the record, the respondents’ counsel referred the Court to an unreported authority ofNUPPPPW v. Thomas Wyatt Suit No: NICN/LA/52/2013 delivered on February 24, 2014 by Oyewumi JNICN at paragraph 4.2.3 of his written address in support of his preliminary objection, without supplying certified copy of the judgment as required by the provision of Order 45 Rule 3 (1) of NICN (Civil Procedure) Rules,2017. In the circumstance, the cited unreported case is accordingly discountenanced in this judgment.

 

The law is that Jurisdiction of a court is its lifeline on any action. It is the blood that gives life to the survival of an action in a court of law. A court without jurisdiction therefore, automatically lacks the competence to try thecase; and so, it has no power to make orders affecting the subsequent determination of that case on its merit, neither can it pronounce on the rights between theparties in such matter; see the cases of Dada v.FRN [2016] 5 NWLR (Pt. 1506 CA 471 at 578-579 paragraphs G-B and Effiong&Ors v. Ebong[2015] 63 NLLR (Pt. 223) 310 at 340. Since the Preliminary Objection in this case is challenging the jurisdiction of this court, it will be resolved first before determining the issues in the substantive matter as raised in the Originating Summons.

 

34.Whether the 3rd, 4th and 5threspondents can be sued.

In paragraphs 4.1 to 4.1.9 of the written address in support of the notice of preliminary objection; counsel to the respondents/applicants contended that the 3rd, 4thand 5th respondents are not juristic persons, therefore; they are not capable of being sued in this case. However, counsel to the applicant/respondent contended in paragraphs 4.0 to 4.1.3 of his written address in opposition to the notice of preliminary objection that the three respondents can and were properly sued in this case;referring toCarlen (Nig.) Ltd v. University of Jos [1994] 1 NWLR (Pt. 323) pg. 658 paragraphsC-Calso toratio8.The court held in the referred authority thus:

Considering powers, duties and functions of the University Council and the Vice-Chancellor it cannot be doubted that in the exercise of their functions, rights of the third party would be affected and it will amount to an injustice if such third party cannot seek redress for any wrong done to him”. The Court went further to hold that “In the instant case, although the University of Jos Act has not expressly conferred on the Council of the University or on its Vice Chancellor such right to sue or be sued eonomine, considering the nature or functions, and the powers, duties and responsibilities conferred on them by the University of Jos’ Act, the Council of the University and the Vice Chancellor are deemed to have been given the power to sue and be sued”. Also see the case of Thomas v. Local Government Service Board [1965]1 NMLR 310.

 

  1. On similar issue, this Court gavea considered ruling delivered on September 28, 2016 in the unreported case with Suit No: NICN/IB/89/2014 betweenMr. James K. Adebayo v. University of Ilorin Teaching Hospital, Ilorin. The Court held this way:

— The law is that if the Legislature has created a thing which can own property, can employ servants and inflict injury; then it must be taken to have impliedly given the power to make that created thing suable in a court of law for injuries purposely done by its authority and procurement. See the case of Taff Vale railway Co. v. Amalgamated Society Railway Servants [1901] AC 426 at 436. See also the book titled Civil Litigation in Nigeria by M. M. Stanley-Idum and J. A. Agaba published in October 2015 pages 202 to 204 thereof. Paragraph 5.3 of this Book at page 202 is sub-titled: Main Types of Juristic Non Corporate Bodies; 1) Non-Corporate Statutory Bodies created by Statutes. The Authors wrote inter alia that:

‘The statutes creating the bodies that fall under this group do not state that they are bodies corporate. But the statutes have vested them with certain functions which can result in injury. For this reason, the courts hold that this implies that these bodies can sue and be sued in their names. This, no doubt is to avoid the possibility of injustice occurring, if for instance, by certain actions they take, they can cause injury to others but cannot be held liable’.

An example of such situation is provided in the case of Thomas v. Local Govt. Service Board [1965] NMLR 310. The facts were that the appellant sued the Local Government Service Board, which was a body created by section 93 of the Local Government Law (West). It was not a corporate body but it was vested with power under section 5 of the Customary Courts Law (West) to appoint (and, therefore, to remove) members of Customary Courts. The appellant sued for a declaration that the termination of his appointment by the Board as President of a Customary Court was illegal and ineffective. The Board contended that the action must fail because the Board was not a body corporate capable of suing or being sued. The Supreme Court rejected this contention. It stated per Brett JSC as follows:

We reject the contention that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for a Declaration, and we do so more readily since the statutory provision relating to the appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings.

 

  1. The Case law position inCarlen (Nig.) Ltd v. University of Jos [supra] cited by the applicant/respondent is in respect of a statutory body created with powers and functions that could affect a third party. Furthermore, inKpebimoh v. Board of Governors, Western Ijaw Teachers Training College [1966] NWLR 130, the Board in that case was created by section 3 of the Education Law, Cap 32 of the Laws of the Western Region and it was conferred with the power of general financial management of the College etc. The Board was sued for breach of contract and payment for work done in relation to those functions.

 

Nevertheless, the 3rd, 4th and 5threspondents/applicants in the instant case are not bodies created by any statute or law; rather they were created by a constitution of an Association, which is a private arrangement among members of the Association. Therefore, I find that those case laws are not applicable to the respondents/applicants.

  1. It is the law thatparties to an action must be juristic persons or natural persons existing at the time the action was commenced, otherwise the action will be incompetent and the court will lack jurisdiction to entertain the matter. Suing a non-juristic person renders whatever proceedings conducted thereon a nullity, see the case of LASTMA v. Esezobo [2017] 5 NWLR (Pt. 1559) CA 350 at pp. 335-336 paragraphs F-A. Since the 3rd, 4th and 5threspondents/applicants are not bodies created by law with statutory powers and functions; the exception in the cases of Carlen (Nig.) Ltd v. University of Jos (supra) andKpebimoh v. Board of Governors, Western Ijaw Teachers Training College[supra] are not applicable to them. In the circumstances, I find and hold that the 3rd, 4th and 5threspondents/applicants are not juristic persons in this case and their names are accordingly struck as respondents to thesubstantive case.

 

38.Whether the dispute between the parties is a trade dispute under section 48 of Trade Dispute Act and that it requires going through mediation, conciliation and arbitration under sections 2 and 4 of the TDA.

The crux of this matter in the case at hand is that the applicant/respondent is challenging the election of the 2ndrespondent as the Chairman of the Nigerian National PetroleumCorporation Research and Development Division, Port Harcourt Chapter Executive Committee of the 1strespondent in the election conducted in Port Harcourt on March 20, 2018 by the 4threspondent. In essence, the applicant and the 2nd respondent are members of PENGASSAN Research and Development Division, Port Harcourt Chapter. See paragraphs 4.2.3 to 4.2.7 of the written address in support of the preliminary objection at page 152 of the record and paragraph 1.15 of the written address of the applicant/respondent in support of his counter affidavit against the Preliminary Objection at page 198 of the record. See also page 2 of the record and paragraphs 2 to 18 of the affidavit in support of the Originating Summons. This is an intra-union matter, an internal issue between members of Trade Union.

  1. Section 48 of the Trade Dispute Act provides that “trade dispute” means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person.

 

Section 54 of the NIC Act, 2006 expatiates more on section 48 of the TDA and provides that “Trade Dispute” means any dispute between employers and employees, including disputes between their respective Organizations and Federations, which is connected with- (a) the employment or non-employment of any person, (b) terms of employment and physical conditions of work of any person, (c) the conclusion or variation of a collective agreement, and (d) an alleged dispute.

In NUT v. COSST [2006] 5 NWLR (Pt. 974) 590 an intra-union matter is said to be no other than a dispute between members of a Trade Union. In Tidax (Nig) Ltd v. Maskew [1998] 3 NWLR (Pt. 542) 404 it is the law that an intra-union dispute or dispute within a trade Union cannot be a trade dispute as defined in section 48 of the Trade Dispute Act. The case of National Union of Road Transport Workers v. Ogbodo [1998] 2 NWLR (Pt. 537) 189, cited by counsel to the Applicant, where the court stated that; in order to come within the Trade Dispute Act, the contention between the parties must be a trade dispute is also apt in this case.

  1. As shown above, the relationship between the applicant and the 2ndrespondent is not that of employer and employee neither is it a dispute between their respective organizations and federations connected with the employment or non-employment of the applicant, his terms of employment and physical conditions of his work, the conclusion or variation of a collective agreement or on an alleged dispute and I so find. Consequently, I hold that the dispute between the parties in the instant case is not a Trade Dispute as contemplated in section 48 of the TDA and section 54 of the NIC Act, 2006.

 

41.On whether this suit is competent or Whether schedule 3 of the PENGASSAN constitution relating to dispute resolution mechanism is in contravention of sections 36 and 6 (6) (b)  of the Constitution FRN, 1999 as amended.

 

The position of counsel to the applicant/respondentis that schedule 3 of the PENGASSAN constitution on the entire dispute resolution mechanism is in contravention of sections 36 and 6 (6) (b) of the Constitution of the FRN, 1999 as amended. He cited in support unreported decisions of the NICN in Suit No: NICN/ABJ/12/2016 between Comrade SeyiGambo&Anor v. The Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) &Ors delivered by Hon. Justice SanusiKado and the case of Comrade Sir. Ikechukwu Foster & 3 Ors v. PENGASSAN & 6 Ors in Suit No: NICN/ABJ/185/2017, see paragraph 4.2.7 of his written address in support of his counter affidavit at page 201 of the record.

42.The said judgments were in respect of Schedule 3 of the PENGASSAN constitution and the court is band by it. However, the judgments are not on Rule 11.3.22 PENGASSAN constitution (as amended) which is on election petition guidelines. The matter before the court in the instant case is in respect of eligibility of the 2ndrespondentto contestfor the Chairmanship position of the Nigerian National PetroleumCorporation Research and Development Division Port Harcourt, Chapter Executive Committee ofthe 1strespondent’s electionconducted atPort Harcourt on theMarch 20, 2018 and whether the said election is not a nullity. Therefore, those unreported cases are distinguishable from the instant case; I so find and hold.

 

43.Whether the case is competent in view of  PENGASSAN constitution, 2013.

Rule 11 of the 1st respondent/applicant’s(PENGASSAN) constitution is on election petition guidelines. Rule11.3.22 of the said constitution provides:

All petitions which are not made on the floor of the conference shall be submitted to the panel in writing not more than two weeks from the date of the elections. Any petition not received within two weeks from the date of the elections shall not be entertained.

Rule 11.3.23 states:The panel shall within four weeks of receipt of any petition, resolve all issues on such petition(s) thereafter stand dissolved.”

  1. In paragraphs 13 & 14 of the affidavit in support of the originating summons, the applicant avers thaton the day of the said election the applicant drewtheattentionofthe4thRespondentto the fact that the 2ndRespondentwas not eligible to contest the Chairmanship Electionandlaterwroteaprotestletter tothe4thRespondentthroughthe4thRespondent’ssecretary andviaRedstar express (Courier Services) and also copied other executive officers of the1stdefendant with thesaidletterdatedJune 2,2018.Exhibits “F1”and“F2”;The complaint letter in respect of election conducted on March 20, 2018 was not written within two weeks from the date of the election as provided for under Rule11.3.22 of the 1strespondent’s constitution as it was written two months and thirteen days after the election was conducted, instead of same being written within two weeks of that election.
  2. It is trite law that the constitution of a trade union is a contract between the members of the Union. By that constitution, members of the Union have subsumed their several rights into the letters of that Union’s constitution; see the case ofNigeria Civil Service Union v. Essien[1985] 3 NWLR (Pt. 12) 306. In the circumstance, I hold that having subsumed his right to the PENGASSAN constitution as its member, the applicant/respondent is bound by the provisions of the Union’s constitution. I further hold thatthe provisions of PENGASSAN constitution are not in contraventionof the applicant/respondent’s right under the Constitution of the FRN, 1999 (as amended).

In addition, I hold that having not filed his petition within two weeks after the said election against the 2ndrespondent, the applicant/respondent can no longer challenge/complain/petition against the 2ndrespondent on the said election.

  1. Whether the suit is an abuse of court process.

A common feature of all cases on abuse of Court process is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of Court process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right; which is to harass, irritate and annoy the adversary, and to interfere with the administration of justice. It is the inconveniences and inequities in the aims and purposes of the action that constitute abuse of Court Process; see the case Union Bank Plc. v. Olatunji[2013] LPELR-CA/K/95/2011 PerAbiru, JCA.

I have held above that having failed to file his petition within two weeks after the election being complained about as provided in the constitution of the 1strespondent, the applicant/respondent has lost his right to challenge that election. Consequently, I hold that the applicant/respondent instituted this action to irritate and annoy the respondents/applicants in this case, which is an improper use of judicial process. Therefore, I further hold that the filing of the case is an abuse of Court’s process. In the circumstances, this Preliminary objection has merit and it is accordingly upheld.

47.B. ON THE SUBSATNTIVE MATTER; THE ORIGINATING SUMMONS

 

Even though I have held above that the Preliminary Objection of the respondents/applicants has merit and the prayer therein upheld, I will still resolve the issues framed on the substantive matter (on the originating summons) because I also adopted the final written addresses of counsel on it together with their addresses on the preliminary objection.

 

48.Whether the applicant/respondent is entitled to the reliefs he is seeking for, in view of the provision of PENGASSAN’s constitution’s 2013.

From the Origination Summons, the applicant is seeking for the following reliefs from the respondents:

  1. A Declaration that by virtue of Rule 19.5 of PENGASSAN constitution, 2013; the 2nd respondent was  not  eligible  to  have  contested  for  the Chairmanship position in question of March 20, 2018 conducted by the 4threspondent.
  2. A Declaration that the (PENGASSAN) ChairmanshipElection in question,conductedbythe4threspondent onMarch 20, 2018;is a nullity and of no effect whatsoever.

iii.               AnOrderoftheHonourableCourtdirectingthe1stand4threspondentsto immediately conduct a fresh Chairmanship Election at the Nigerian National Petroleum Corporation, Research and Development Division Port Harcourt, Chapter Executive Committee of (PENGASSAN).

  1. AnOrderofperpetualinjunctionagainstthe2ndrespondentfromfurther holding himself out, parading, acting even through his agents or previse as the Nigerian National Petroleum Corporation Research and Development Division Port Harcourt, Chapter Executive Committee Chairman of (PENGASSAN).
  2. ADeclarationthateveryappointment(s)ornomination(s)madebythe2ndrespondentwithintheperiod he acted astheChairmanofthe3rdrespondent is null and void and of no effect whatsoever.

 

49.However, by the provisions of Rule11.3.22 of PENGASSAN constitution,all petitions against any PENGASSAN Election, which are not made on the floor of the conference, shall be submitted to the panel set up by the Union in writing within two weeks from the date of the elections. Any petition not received within two weeks from the date of the elections shall not be entertained.

 

50.By the applicant’s averment in paragraph 10 of the affidavit in support of the Originating Summons, the election being complained of was conducted on March 20, 2018 and by his averment in paragraph 14 of the same affidavit in support, the applicant avers that on the day of the said election, he drewtheattentionofthe4thRespondent toandlaterwroteaprotestletter tothe4threspondent—; the letter in question isdatedJune 2,2018. The applicant’s letter of protest in this instance represents his petition against the election of the 2nd respondent as the Chairman ofPENGASSAN Research and Development Division Port Harcourt Chapter Executive Committee as stated in Rule 11.3.22 of PENGASSAN constitution. But contrary to that provision of PENGASSAN constitution, the applicant filed his letter/petition against that election two months and thirteen days after the said election. Therefore, having made the said complaint/protest/petition after the limited period; the petition is barred by PENGASSAN constitution and it can no longer be entertained and I so hold.I further hold that the applicant is not entitled to the declaratory reliefs he is seeking for, having filed his petition against PENGASSAN election outside the period allowed by the Union constitution. This matter is accordingly dismissed.

 

  1. On the whole, I hold and order as follows:
  2. I declare and hold that the 3rd, 4th and 5threspondents are not juristic persons in this case; therefore, their names are accordingly struck out as respondents in this case.
  3. I hold that this Court lacks the jurisdiction to entertain this suit because it is incompetent.

iii. I hold that this suit is not a trade dispute as contemplated in section 48 of the TDA and section 54 of the NIC Act, 2006

  1. I hold that the complaint of the applicant is time limited by Rule 11.3.22 of PENGASSAN constitution
  2. I hold that this suit is an abuse of court process as it was filed by the applicant to harass and intimidate the respondents.

vii.             The case is accordingly dismissed for lacking in merit.

viii.          The applicant/respondent is to pay N250,000.00 to the respondents/applicants within 30days from today.

 

Judgment is entered accordingly.

 

 

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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