IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: OCTOBER 31, 2018. SUIT NO. NICN/YEN/119/2016
BETWEEN:
IKIROMA O. IBIBA (Local Chairman)
NSAGANE, U.S (Vice Chairman)
HIGH CHIEF KROHAM JOEL (Treasurer)
ISEGIBOMA, D.T (Auditor)
B.C WODIKE (Ex-Officio)
MRS. MILLER ROSE (Ex-Officio)
ABIYE WOKOMA (Ex-Officio) CLAIMANTS
CHIEF M.B NWIYOR (J.P) (Ex-Officio)
ALICE OPUWARI (MRS) (Local Secretary)
(Suing in their personal capacity;
as Executive Committee Members and
as representatives of Nigeria Union of Pensioners,
Rivers State Local Government Branch)
NIGERIAN UNION OF PENSIONERS
(Rivers State Local Government Branch)
AND
EDWARD FESTUS ABIBO, (STATE CHAIRMAN)
J.J AGBO (STATE SECRETARY)
(Suing them in their Personal Capacity;
as Members of the State Executive Committee
and as representatives of NIGERIAN UNION OF PENSIONERS
(Rivers State Council)
NIGERIAN UNION OF PENSIONERS
RIVERS STATE LOCAL GOVERNMENT STAFF PENSIONS BOARD
RIVERS STATE LOCAL GOVERNMENT SERVICE COMMISSION
NIGERIAN LABOUR CONGRESS
APPEARANCE
Mr. B.O Georgewill Esq for all the Claimants.
Mr. S.O Enuku Esq for the 1st and 2nd Defendants.
Mr. Godson C.G. Dike Esq for the 4th Defendant.
JUDGMENT
The Claimants commenced this action by an Originating Summons dated the 27th day of June, 2016 and filed on the same date. The Originating Summons was supported by a 33 paragraphs affidavit sworn to by one Ikiroma O. Ibiba, the 1st Claimant in this suit. Attached to the affidavit are nine exhibits marked as Exhibits NUPBY, Exhibit D CERT and Exhibits B1 – B7, and Exhibit NUP: RS respectively. Claimant also filed another 23 paragraphs of Further-Affidavit and a Written Address dated 21st June, 2018 and another 13 paragraphs dated 14/09/16.
THE CLAIMANT’S CASE IN BRIEF
The brief fact of the case as contained in the Claimant’s Affidavit in Support of the Originating Summons (Paragraphs 1 – 32) is that the Claimants are members of the 3rd Defendant, and 2nd – 9th Claimants are the duly elected Executive Committee of the 10th Claimant. The Claimants instituted this action for a proper sharing formula of the check-up dues deducted from the Local Government Pensioners. It is the contention of the Claimants that the practice is that the check-up dues realized is normally being shared by giving the Local Branches 25%, State Councils 30%, National Secretariat 35% and Nigeria Labour Congress 10%, But the 1st and 2nd Defendants now without any justification varied the percentage formula and mode of payment as stipulated in the Constitution of the 3rd Defendant. Hence this action.
SUBMISSION OF THE CLAIMANTS
The Claimants formulated five issues for determination as follows:
Whether the 1st to 9th Claimants as duly elected officers (Executive Committee) of the 3rd Defendant in the Rivers State Local Government Branch, have a constitutional responsibility to render true account of their stewardship to the members, including the responsibility to remit to the National Secretariat levies and check up dues of their members?
If the answer is in the affirmative, whether the 1st and 2nd Defendants can assume the constitutional duties and responsibilities of the 1st to 9th Claimants.
Whether any action by the 1st and 2nd Defendants purporting to vary the percentage of allocation or mode of payment (remittance) with the guise to collect/receive, appropriate, disburse and expend check-up dues of the Claimants in the custody of the 4th Defendant and purporting to give to the Claimants the sum of N104,000,000 only or any other sum as 25% of the Claimants’ share of allocation of the Union’s Fund on quarterly basis without disclosing how much sum was actually collected or received within the quarter is not illegal, unlawful, null and void and contrary to Rule 20 (ix) and the Code of Practice at page 47 paragraph (iv) (k) and page 48 para (7) of the Constitution of Nigerian Union of Pensioners with Registration No. 0067.
Whether by Rule 20 (vii), (a) of the Constitution of Nigeria Union of Pensioners, with Registration No. 0067, the Claimants are not entitled to 25% of the entire Funds of the Union, or 25% of the check–up dues of the 1st and 2nd Defendants as they (1st and 2nd Defendants) are entitled to 30% of the check-up dues of the Claimants on quarterly basis.
Whether Rule 3 (1) of the Constitution of Nigeria Union of Pensioners, with Registration No. 0067 which made all Pensioners in Nigeria, including the Claimants automatic members of the Union is not oppressive, obnoxious, null and void, against International Labour Law and contrary to the provisions of Section 12 (4) of the Trade Union’s Act, Cap T14 Laws of the Federation of Nigeria 2005 as amended and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended?
The Claimants’ claim is for:
A DECALARATION that the 1st to 9th Claimants as duly elected officers (Executive Committee) of the 3rd Defendant in the Rivers State Local Government Branch, have a constitutional responsibility to render true account of their stewardship to the members, including the responsibility to remit to the National Secretariat levies and check-up dues of their members in line with Rule 20 (vii) (a) of the Constitution of Nigerian Union of Pensioners, with Registration No. 0067.
A DECLARATION that, any action by the 1st and 2nd Defendants purporting to assume the duties of the 1st to 9th Claimants as duly elected Officers of the Union in collecting, appropriating, disbursing and expending the check-up dues of the Claimants and purporting to give to the Claimants the sum of N104, 000, 000 only or any other sum as 25% of the Claimants’ share of allocation of the Union’s Fund on quarterly basis without disclosing to the members how much sum was actually collected or received within the quarter is an infringement on the constitutional rights of the 1st to 9th Claimants and will undermine the stewardship to be rendered by them.
A DECLARATION THAT, any action by the 1st and 2nd Defendants purporting to vary the percentage of allocation or mode of payment (remittance) with the guise to collect/receive, appropriate, disburse and expend check – up dues of the Claimants in the custody of the 4th Defendant and purporting to give to the Claimants the sum of N104,000,000 only or any other sum as 25% of the Claimant’s share of allocation of the union’s funds on quarterly basis without disclosing how much was actually collected or received within the quarter is illegal, unlawful, null and void and contrary to Rule 20 (ix) and violates the Code of Practice at page 47 paragraph (iv) (k) and page 48 para (7) of the constitution of Nigerian Union of Pensioners, with Registration No. 0067.
A MANDATORY ORDER, directing the 1st and 2nd Defendants to account fully to the Union and the Claimants for all sums, deductions, contributions and check-up dues of the Claimants collected or received from the 4th Defendant from up till when judgment is delivered.
A DECLARATION that by Rule 20 (vii), (a) of the constitution of Nigeria Union of Pensioners, with Registration No. 0067, the Claimants are entitled to 25% of the entire funds of the union, or 25% of the check-up dues of the 1st and 2nd Defendants as they (1st and 2nd Defendants) are entitled to 30% of the check up dues of the Claimants on quarterly basis.
A DECLARATION that, Rule 3(1) of the Constitution of Nigerian Union of Pensioners, with Registration No. 0067 which made all Pensioners in Nigeria, including the Claimants automatic members of the Union, is oppressive, obnoxious, null and void, against International Labour Law and contrary to the provisions of section 12 (4) of the Trade Union’s Act, and contrary to the provisions of section 12 (4) of the Trade Union’s Act, Cap T14 Laws of the Federation of Nigeria 2005 as amended and section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
In determining this application Learned Counsel to the Claimants further formulated another four issues for determination as follows:
Whether the 1st to 9th Claimants as duly elected officers (Executive committee) of the 3rd Defendant in the Rivers State Local Government Branch, have a Constitutional responsibility to render true account of their stewardship to the members, including the responsibility to remit to the National Secretariat levies and check-up dues of their members in line with Rule 20 (vii) (a) of the Constitution of Nigerian Union of Pensioners, with Registration No. 0067.
If the answer is in the affirmative, whether the 1st and 2nd Defendants can assume the Constitutional duties and responsibilities of the 1st to 9th Claimants.
Whether any action by the 1st and 2nd Defendants purporting to vary the percentage of allocation or mode of payment (remittance) with the guise to collect/receive, appropriate, disburse and expend check-up dues of the claimants in the custody of the 4th Defendant and purporting to give to the Claimants the sum of N104, 000, 000 only or any other sum as 25% of the Claimants’ share of allocation of the union’s fund on quarterly basis without disclosing how much was actually collected or received within the quarter is not illegal, unlawful, null and void and contrary to Rule 20 (ix) and the Code of Practice at page 47 paragraph (iv) (k) and page 48 para (7) of the constitution of Nigerian Union of Pensioners, with Registration No. 0067.
Whether by Rule 20 (vii) (a) of the Constitution of Nigeria Union of Pensioners, with Registration No. 0067, the Claimants are not entitled to 25% of the Funds of the Union or 25% of the check-up dues of the 1st and 2nd Defendants as the 1st and 2nd Defendants are entitled to 30% of the checkup dues of the Claimants on quarterly basis.
Whether Rule 3 (1) of the Constitution of Nigerian Union of Pensioners, with Registration No. 0067 which made all Pensioners in Nigeria, including the Claimants automatic members of the union, is not oppressive, obnoxious, null and void, against International Labour Law and contrary to the provisions of section 12 (4) of the Trade Union’s Act, Cap T14 Laws of the Federation of Nigeria 2005 as amended and section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
In his submission on issue one that is, whether the 1st to 9th Claimants as duly elected officers (Executive committee) of the 3rd Defendant in the Rivers State Local Government Branch, have a Constitutional responsibility to render true account of their stewardship to the members, including the responsibility to remit to the National Secretariat levies and check-up dues of their members in line with Rule 20 (vii) (a) of the Constitution of Nigerian Union of Pensioners, with Registration No. 0067, Its the submissions of counsel that by Rule 5 (ix) of the Constitution of Nigerian Union of Pensioners the Government of the Union shall be vested in the National Delegate Conference, National Executive Council, Central Working Committee, National Administrative Committee, State Councils, Federal Parastatal/Sectoral Unit and Local Branches. That the above provision recognized the Local Branches of the Union as part of the Government of the Union. And that by Rule 13 (v) (a) of the same constitution establishes the offices of the 1st to 9th Claimants. And that the Claimants had deposed in paragraphs 4, 15 (d) and 20 of the Affidavit in Support of the Originating Summons that the 1st to 9th Claimants were duly elected as the executive committee of the 10th Claimant on the 6th August, 2015. It is also the contention of the Claimants that the Code of Practice of the Nigerian Union of Pensioners which is also provided in the Constitution is that the 1st to 9th Claimants is to render a true account of their stewardship to the members of the union. Refers to paragraph 7 of the Code of Practice at pages 47 (k) and 48 of the constitution of NUP (National Union of Pensioners).
And that the Funds of the Union is defined by the constitution to include check-up dues, levies, and proceeds from economic and social activities. Refers to Rule 20 (v) and Rule 20 (iv) of the constitution. And every member is required to pay same. And that these dues are expected to be collected by the branch officers and forwarded to the national secretariat through the general secretary of the union. Refers to Rule 22 (i) of the NUP constitution and Exhibit NUPBY.
Counsel further submitted that the sharing formula as contained in Rule 22 (i) of the constitution of NUP is as follows:
Local Branches 25%.
State Councils 30%.
National Secretariat 35%.
Nigeria Labour Congress 10%.
Refers to paragraphs 10 and 11 of the Affidavit in Support of the Originating Summons and Exhibit NUPBY. And that this formula can only be altered by the manner provided by the constitution and not by any other means as doing otherwise will be an infraction of the constitution. That in clear violation of the constitution, the 1st and 2nd Defendants usurped the powers of the 1st to 9th Claimants by collecting check-up dues of the Claimants in the custody of the 4th Defendant even while they still collect check-up dues from their own members and refused to remit any percent to the Claimants as required by Rule 20 (vii) (a) of the Constitution.
Also, that the 1st and 2nd Defendants in September, 2015 collected check-up dues from the 4th Defendant and only gave the Claimants N104, 000.00 (One Hundred and Four Thousand Naira) only alleging that is 25% their share of allocation without disclosing how much was actually collected which he said is against the democratic principle of trade unionism. And allowing the 1st and 2nd Defendant to perform dual function is autocratic. Since they do not even contribute to the funds in the custody of the 4th Defendant. The funds and check-up dues are primarily contributed by the claimants. And they are also not elected officers of the 10th Claimant. Urged this court to resolve issue one in favour of the Claimants based on the collective reading of the rules and other documents.
On the second issue, that is whether any action by the 1st and 2nd Defendants purporting to vary the percentage of allocation or mode of payment (remittance) with the guise to collect/receive, appropriate, disburse and expend check-up dues of the Claimants in the custody of the 4th Defendant and purporting to give to the Claimants the sum of N104, 000, 000 only or any other sum as 25% of the Claimants’ share of allocation of the Union’s Fund on quarterly basis without disclosing how much was actually collected or received within the quarter is not illegal, unlawful, null and void and contrary to Rule 20 (ix) and the Code of Practice at page 47 paragraph (iv) (k) and page 48 para (7) of the Constitution of Nigerian Union of Pensioners, with Registration No. 0067. Counsel referred this court to Rule 20 (iv) of the Union’s Constitution which provides how the funds of the Union shall be applied, while Rule 20 (viii) and Rule 20 (ix) provides the mode how the check-up dues shall be payable. And this clearly forbade the 1st and 2nd Defendants from varying the mode of payment (remittance) of check-up dues. That the remittance of check-up dues is that same is deducted from Local Government Pensioners and is paid directly from the Local Government Staff Pensions Board in to the account standing in the name of the local branch of the union. The role of the 1st and 2nd Defendants is merely supervisory. Also refers to rule 22 (i), rule 22 (viii) of the Union’s constitution, which categorically stated that payments made payable to the National Secretariat shall be done by the branch officers of the union. And that its trite where an individual is enjoined by a rule or law to do or refrain from doing a particular act, he has a duty to carry out that rule or act. Refers to the case of ADESANOYE & ORS VS PRINCE ADEWOLE (2006) 7SC (PT. III) 19 AT 30 PER TOBI JSC.
On the third issue that is whether by Rule 20 (vii) (a) of the Constitution of Nigeria Union of Pensioners, with Registration No. 0067, the Claimants are not entitled to 25% of the Funds of the Union or 25% of the check-up dues of the 1st and 2nd Defendants as the 1st and 2nd Defendants are entitled to 30% of the checkup dues of the Claimants on quarterly basis, Learned Counsel referred to Rule 20 (v) of the Constitution of the union and urged this court to give the said provisions their literal meaning in interpreting the said provisions as to the mode of allocation of the funds of the union. And hold that the local branches are entitled to 25% of the entire funds of the union or in other words 25% of the check-up dues of the state councils and the National Secretariat. Since the word “allocated” as used in the constitution means sharing of the union funds from check-up dues. Since the allocation is reciprocal. And by Exhibit NUPBY the Claimants are entitled to 25% of the check-up dues of the State Council in Rivers State or that of 1st, 2nd, 3rd and 6th Defendants. And any departure from the express stipulation of these provisions will negate the spirit and letter of the contract between the union and its members.
On the fourth issue that is whether Rule 3 (1) of the Constitution of Nigerian Union of Pensioners, with Registration No. 0067 which made all Pensioners in Nigeria, including the Claimants automatic members of the union, is not oppressive, obnoxious, null and void, against International Labour Law and contrary to the provisions of section 12 (4) of the Trade Union’s Act, Cap T14 Laws of the Federation of Nigeria 2005 as amended and section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended. It is the submission of the Learned Counsel that the judicial power to interpret laws or provisions of the statute or any other enactment is vested in the courts. Referred to section 6 (i) of the Constitution of the FRN 1999 (as amended). And that this court is vested with the jurisdiction to interpret the provisions of Rule 3 (i) of the Union constitution vis-à-vis the provisions of section 12 (4) of the Trade Union Act and section 40 of the constitution of the FRN 1999 (as amended) which falls within the jurisdiction of this court. And urged this court to hold that Rule 2 (i) of the Constitution of the Nigerian Union of Pensioners as oppressive in nature and that same is in violation with the provisions of section 12 (4) of the Trade Union Act and section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Refers to the provisions of section 254(1) (c) of the Third Alteration Act, 2011.
Finally Learned Counsel urged this court to grant all the declaratory reliefs sought by the claimants, the consequential reliefs and any other consequential orders that may stem from the orders of this court.
THE CASE OF THE 1ST AND 2ND DEFENDANTS
The 1st and 2nd Defendants filed their Memorandum of Appearance dated 12/07/2016 and filed on the 13/07/2016. Also the 1st and 2nd Defendants filed a 33 paragraphs counter affidavit deposed to by one Joseph Jeremiah Agbo, the 2nd Defendant in this suit which is in opposition to the Originating Summons. The counter affidavit is dated 19/06/2018 and filed on the same date. The 1st and 2nd defendants also filed a Notice of Preliminary Objection dated 19/7/2018 and filed on the same date; also filed a Written Address and annexed eight Exhibits.
In the address the Learned Counsel formulated a lone issue for determination. That is whether this suit is competent/valid and has merit in law. It is the contention of Counsel that reliefs 1, 2, 3, 4 and 5 claimed by the Claimants in the Originating Summons and issues i, ii and iii formulated by the Claimants in the address accompanying same, concern only the members of the 3rd defendant trade union in respect of the funds of the 3rd Defendant as contained in its constitution, that same are not justiciable based on the provisions of section 23 (i) and (2) (b) & c of the Trade Unions Act. And that all the check-up dues collected by the 4th Defendant from the members of 3rd Defendant belongs to the 3rd Defendant. And that both rule 4 and rule 20 (i) of the union’s constitution stipulates that the funds of all units of the union shall be the property of the union. Also that section 5 (3) of the Labour Act permits only a registered trade union as the 3rd Defendant to collect the said check-off dues. Therefore the claimants have no right to their claims in this suit to assert that they have the right to collect and manage the fund of the association. And by Rule 8 (i) of the constitution only the National Executive Council of the union that has the power/right to administer the union and also to guard and further the interest of the members of the union, the claimants have no such power. They not being a registered union. Referred this court to Exhibit H to the counter affidavit which is a judgment of this court delivered by Hon. Justice E.N Agbakoba in Suit No: NICN/CA/04/2016. And referred to page 19 of the said exhibit.
It is also the contention of the learned counsel that by Rule 20 (viii) of the NUP constitution it categorically stated that all deductions from pensions under the check-off dues system shall be made payable by crossed cheques to the National Secretariat of the Union through the National Secretary. The Claimants therefore have no right to receive any such check-off dues for the 3rd Defendant by the 4th Defendant. That it’s the right of the union or its delegate to receive same before sharing it based on the formula/ratio stated in the constitution. Therefore urged this court to answer issue one formulated by the Claimants in the negative.
It is the also the contention of the 1st and 2nd Defendants that the Code of Practice (paragraph 7) relied upon by the Claimants in paragraphs 4.6 of their address has not elevated the Claimants to the tall position of being a trade union with a mandate to collect check-off dues. Also that the Claimant purport to have brought this action on behalf of the 10th Claimant and that the 10th Claimant is the Nigerian Union of Pensioners Rivers State, Local Government Branch which is distinct form the 3rd Defendant (the Nigerian Union of Pensioners). And the 10th Defendant has no legal capacity or personality to institute this suit. Referred to paragraph 4 of the supporting affidavit and the case of FAWEHINMI VS N.B.A (NO.2) (1989) 2 NWLR (PT. 105) 558 AT 645 PARAS F – G. And that the 1st to 10th claimants are not registered trade union under the trade union act and as such can not act as one with regards to collection of check-off dues. But the 3rd Defendant is listed as No. 24 of the list in the 3rd Schedule to the Trade Unions Act.
That on the second issue formulated by the Claimants of the 1st and 2nd Defendants that by paragraphs 12, 16, 23, 26, 27, 29, and 31 of the Supporting Affidavit and paragraphs 5.6 and 5.9 of the Claimant’s address under reference, the Claimants tinged with an allegations of fraud, criminality and misappropriation of money against the 1st and 2nd Defendants, it is the duty of the Claimants to prove same beyond reasonable doubt since it is an allegation of crime. And these are all issues of facts which cannot be commenced by Originating Summons. Referred this court tot the case of OMOJA VS OYATERU (2009) ALL FWLR (PT. 453) 1318 RATIO 3 AT PG 1333 PARAS D – F; AGIRI VS OGUNDELE (2000) ALL FWLR (PT. 250) 81 AT 85 RATIO 5. And sections 135 (1) and 138 (1) of the Evidence Act.
Furthermore, the 1st and 2nd Defendants contend that the Claimants failed to satisfy a condition precedent before instituting this action in line with the provision of the Trade Disputes Act, 2004. By paragraphs 1 – 6 and 10 – 32 of the Affidavit in Support of the Originating Summons one can see that the dispute between the Claimants and the Defendants qualifies as a trade dispute looking into the relationship between the claimants and the 1st, 2nd and 3rd Defendants. And that the Claimants failed to satisfy the conditions stated in the Trade Dispute Act 2004 before instituting this action. Refers to Part 1, sections 2, 4, 5, 6, 8, 9. 12. 13 and 14 of the Trade Disputes Act 2004. As such the claimants have no locus to institute this action.
Similarly on issues three and four, the 1st and 2nd Defendants stated that the Claimants only made a general/sweeping allegations, but they failed to state now much money was due to them every month and how much less of same was paid to them by the 1st and 2nd Defendants. And they have equally not stated how the 1st and 2nd Defendants allegedly varied the percentage of the union funds which is 25% payable to the local branch. That the claimants left these pertinent questions but rather delve into speculations, assumptions and baseless allegations which court can not act on speculations. Referred to the case of OKOYA VS SANTILLI (1994) 4 SCNJ (PT. 2) 333 AT 381 – 382 PER IGUH JSC. That the Claimants failed to produce facts so as to justify their claims. And in law their claim is bound to fail. And once their claims (reliefs 1, 2 and 3) failed which are the substantive reliefs, relief 4 is ancillary to the main claims, and same is bound to fail. Refers to the case of WESTERN STEEL WORKS LTD VS IRON & STEEL UNION OF NIGERIA & ANOR (1987) 2 SC 11 AT 28 – 29 (LINES 29) PER KARIBI WHYTE JSC; EMENIKE VS PDP (2012) 5 SCNJ 373 AT 398.
Finally, urged this court to hold that this suit is incompetent, lacks merit and dismissed same.
THE CASE OF THE 4TH DEFENDANT
In opposition to the Claimant’s Originating Summons, the 4th Defendant filed a Memorandum of Appearance dated 28th July, 2016 and filed on the 3rd August, 2016. And also filed a 24 paragraphs of Counter Affidavit dated 28th August, 2016 and filed on the same date. Also attached with the counter affidavit are annextures Exhibits A – H. In the address counsel to the 4th defendant formulated a lone issue for determination that is whether the claimant’s suit against the 4th Defendant is competent. Counsel contends that it is trite where the statement of claim discloses no cause of action, the action is to be strike out. Refers to THOMAS VS OLUFOSOYE (1986) 1 NWLR (PT. 18) PG 669 AT PG 682 PARA H PER OBASEKI JSC LABODE VS OTUBU (2001) 7 NWLR (PT. 712) 256, PER ONU JSC.
It is the contention of the 4th Defendant that the instant suit failed to disclose any cause of action against the 4th Defendant. And also the law that established the 4th Defendant required that the Claimant has to serve the 4th Defendant with a pre-action notice before instituting this action, a condition precedent which the Claimant failed to fulfill, therefore the suit is incompetent. Refers to the case of MOBIL PRODUCING (NIG) LTD VS LASEPA (2002) 18 NWLR, PT. 789, PG 1 AT 30, PARA E – H PER AYOOLA JCA.
THE PRELIMINARY OBJECTIONS
The 1st, 2nd and 4th Defendants filed Preliminary Objections challenging the competence of this suit.
THE 1ST AND 2ND DEFENDANTS/APPLICANTS MOTIONS
The 1st and 2nd Defendants filed two different applications. The 1st application is dated 12th July, 2016 and filed on the 13th July, 2016. The application is supported by 4 paragraphs affidavit and a written address. The 1st and 2nd Defendants also filed a Notice of Preliminary Objection dated 19th July, 2018 and filed on the same date. And the application is supported by 4 paragraphs affidavit and a written address where counsel urged this court to strike out the further affidavit in opposition to the 1st and 2nd Defendants’ Counter Affidavit filed on 21/6/2018 in this suit on the grounds that paragraphs 3 – 27 is incompetent as it contravenes the mandatory provisions of section 115 (1), (2), (3) & (4) of the Evidence Act, 2011. That the said paragraphs of the counter affidavit are incompetent as it contains legal arguments and conclusions and the submissions are based on speculations or assumptions.
On the first application dated 12th July, 2018 the 1st and 2nd Defendants/Applicants are praying for the following:
AN ORDER striking out this suit and/or setting aside all the processes filed by the claimants/respondents in this suit on the grounds of incompetence, non-justiciability and lack of jurisdiction.
AND FOR SUCH FURTHER OR OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this case.
The grounds for the application are as follows:
This suit is irregular and incompetent, having not been commenced by the due process of law as prescribed in the National Industrial Court Rules.
This suit is incompetent and this Honourable Court lacks the jurisdiction to entertain same as the Claimants lack the locus standi to institute and maintain an action over the subject matter of this suit (the collection/entitlement to collect check-off dues from Trade Union members and trade union rights/functions) and
This suit is not justiciable and this Honourable court consequently lacks the jurisdiction to entertain same as it bothers on the internal affairs of a voluntary society or organization and it is not permissible under the Trade Unions Act.
In the written address Learned Counsel formulated three issues for determination:
Whether this suit and the Claimants’ process therein having not been in accordance with the prescriptions/stipulations of the rules of this court are not liable to be struck out/set aside for not having been initiated by due process of law.
Whether in view of the reliefs and subject matter of this suit which involves check-off dues and the rights, functions and duties of a registered trade union within the context of the law, this suit is not vitiated on the grounds of incompetence and lack of jurisdiction based on lack of locus standi on the part of the claimants to institute/maintain same.
Whether, as this suit involves the domestic or internal affairs of a voluntary society/organization or association such as the 3rd Defendant, it is justiciable and this court has the jurisdiction to entertain same.
On the first issue Learned Counsel to the 1st and 2nd Defendants contends that the Claimant failed to institute this action in line with the provisions of Order 3 of the N.I.C Rules 2007 when this suit was instituted, but by the provisions of Order 1 Rule 2 and 8 of the N.I.C.N Rules 2017 the defect was cured, so I will not dwell on this issue as part of those to be determined by this court. On the second issue, it’s the contention of the applicants that the claimants have no locus standi to institute this action on behalf of the 10th Claimant which is distinct from the 3rd Defendant. Also since the Claimants’ action borders on the issue of collection of check-off dues which falls within the mode of the trade unions, and the Claimants since they are not trade unions lacks the locus standi to institute this action. Referred to section 5 and 45 of the Trade Unions Act, 2004.
On the third issue which is on the non-justiciability of this suit, it is the contention of the applicants that from paragraphs 4 – 6 of the affidavit in support of the originating summons. The claimants admitted that both the claimants and the 1st and 2nd Defendants/Applicants are all members of the 3rd Defendant (a trade union). And this suit arose out of the dispute between the Claimants and the 1st and 2nd Defendants over the check-off dues of the union as it relates to the sharing of the said check-off dues in line with the provisions of the 3rd Defendant’s constitution. However, instead of the Claimants to seek an internal resolution of the matter, the Claimants decided to come to court. Refers to the cases of FOSS VS HARBOTTLE (1843) 2 HARE 461; ABDULKADIR VS MAMMAN (2003) 14 NWLR (PT. 879) 1 AT 30 PARAS A – B.
Finally learned counsel urged this court to grant the application of the 1st and 2nd Defendants and strike out this matter.
THE 4TH DEFENDANT MOTION ON NOTICE
The 4th Defendant/Applicant filed a Motion on Notice dated 28th July, 2016 and filed on the 3rd august, 2016. The motion is supported by eight paragraphs affidavit. The applicant is seeking for an order of this court for:
AN ORDER striking out the 4th Defendant/Applicant’s name from this suit on the ground being no cause of action against the 4th Defendant/Applicant.
That the pre-action notice served on the 4th Defendant is not known to law and therefore robs the court of jurisdiction to entertain this suit.
The joinder of the 4th Defendant/Applicant is a misjoinder of a party.
And the grounds upon which this application is brought are as follows:
There is no complaint against the 4th Defendant/Applicant for which it will be expected to provide an answer or a response.
The purported pre-action notice served on the 4th Defendant is a covering letter and not a pre-action notice as stipulated in law.
Throughout the issues for determination ((sic), reliefs sought and affidavit in support filed by the claimant, the Claimant has not disclosed any cause of action against the 4th Defendant/Applicant.
The 4th defendant/applicant is not a necessary or nominal party in this suit.
The court lacks the jurisdiction to entertain this suit.
I don’t think its necessary to review the written address filed in support of this application since the issues and the submissions are the same with the one I earlier reviewed in opposition to the Originating Summons. But I must state here that the applicants equally filed a Reply on Points of Law dated 26th September, 2016.
THE CLAIMANTS/RESPONDENTS’ REPLY IN OPPOSITION TO 1ST, 2ND AND 4TH DEFENDANTS NOTICE OF PRELIMINARY OBJECTION DATED 12/7/2016 BUT FILED 13/7/2016 AND THE ONE DATED 28/7/2016 BUT FILED 3/8/2016 RESPECTIVELY.
In opposition to the said applications, the Claimants/Respondents filed a five paragraphs Counter Affidavit deposed to by the 1st Claimant dated 14th September, 2016 and filed on the same date. The Claimants also filed a Written Address.
In the Written Address, the Claimants/Respondents on the issue of whether they have the locus standi to institute this action, it is the submission of the Learned Counsel that the Claimants have interest which permits them to institute the present action under the law. Referred to paragraphs 1, 2, 3 and 4 of the Affidavit in Support of the Originating Summons to the effect that the Claimants are members of a Trade Union (the 3rd Defendants). Refers to section 19 (i) of the Trade Union Act, 2005. On the issue of whether the Claimants are members of a Trade Union to be entitled to seek the reliefs sought, counsel submits that it is erroneous to presume that only a Trade Union can seek legal action over matters bordering on check-off dues. That any aggrieved member like the Claimants can seek legal remedy in a court of law. All that is required of an aggrieved member is to establish his membership with the trade union. Refers to Rule 25 of the 3rd Defendant’s Constitution. Also refers to the cases of ADESANYA VS PRESIDENT OF NIGERIA & ANOR (1981) 12 NSCC 146 AT 168; A.G ANAMBRA STATE VS EBOH (1992) 1 NWLR (PT. 218) PG 499.
On the issue of whether this suit is justiciable, counsel submit that there are exceptions to the rule in FOSS VS HARBOTTLE (SUPRA) that the reason why the claimants approached this court is to restrain and prevent the 1st and 2nd defendant/applicants from their continued illegal act. Refers to section 254C (i) of the constitution of the FRN 1999 (as amended) and Rule 25 of the 3rd Defendant’s constitution. In reply to the 4th Defendant’s Preliminary Objection it is the submission of counsel that the memorandum of appearance and motion on notice for preliminary objection dated 28/7/2016 but filed on 3/8/2016 respectively as well as the written addresses filed by the 4th Defendant are incompetent in that the said processes do not have the mandatory seal of the counsel as required by the law. Refers to YAKI VS BAGUDU (2015) 18 NWLR (PT 1491) PGS 316 PARA B – H. Also that the Deponent, CHIEF AZUBUIKE GEORGEWILL (JP) does not have the requisite consent and authority or board’s resolution of the 4th Defendant to deposed to the facts contained in the affidavit and Counter Affidavit. And also that the Notice of Preliminary Objection is not supported by any affidavit and as such the 4th Defendant/Applicant has thus abandoned the reliefs sought in the Preliminary Objection. That the verifying affidavit attached with the motion is incompetent. The Learned Counsel maintained that this action is competent as the reliefs sought in the complaint are all within the competence of this court. On the issue of serving the 4th defendant with a pre-action notice before instituting this action, counsel maintained that by Exhibits B6 and B3 and paragraphs 17 and 29 of the affidavit in support of the originating summons signifies that 4th Defendant was served with a pre-action notice and urged this court to so hold.
Finally, counsel urged this court to dismiss all the Preliminary Objections filed by 1st, 2nd and 4th Defendants as same are frivolous, misconceived and totally lacking in merit and award substantial cost against the applicants.
COURT’S DECISION
I have analysed the depositions contained in the Affidavit in Support and Counter Affidavits opposing both the Substantive Suit and the Preliminary Objections filed. I have equally examined all the exhibits attached and have also read and understood the arguments of learned counsel in support of their averments. I have concluded that the contention of parties dwell principally on the interpretation of the provisions of the constitution of Nigerian Union Pensioners, Trade Union (Amendment) Act, Trade Disputes Act and the constitution of the FRN 1999 (as amended). I have thus narrowed the issues for determination to the following:
Whether this court is clothed with the requisite jurisdiction to adjudicate on this matter.
Whether taking in to consideration the circumstances of this case, the Claimants are entitled to all or some of the reliefs sought.
On the first issue of whether from the facts of this case, there exists a trade dispute between the parties thereby clothing this court with jurisdiction to entertain same, by the provisions of Section 48, of the Trade Disputes Act Cap T8, Laws of the Federation of Nigeria, 2004, trade disputes 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. See the case of CARNAUD METAL BOX (NIG) PLC VS AGWELE (2009) 17 NWLR (PT. 1171) 487. In essence, before a dispute would qualify as a trade dispute, it must be:
A dispute between a worker and workers, or
A dispute between a worker and his trade union;
A dispute having some industrial colouration.
See the case of APENA VS N.U.P.P.P.P (2003) 8 NWLR (PT. 822) 426. And that its only the national industrial court of Nigeria that has the exclusive jurisdiction to entertain issues pertaining to trade disputes. See Section 254 C (1) (b) (j) (v) of the constitution of the Federal Republic of Nigeria 1999 (as amended); section 19 (1) and 20 (1) of the Trade Disputes Act 2004.
Furthermore, jurisdiction is defined as 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 joined, or to the kind of reliefs sought. See A.G LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (Pt. III) at page 552 S.C.
Furthermore, NIKI TOBI JSC in the case of INALOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) pg 425 at pg 588 paras E-H, heralded the principal importance of jurisdiction where he stated as follows:
“Jurisdiction is a radical crucial question of competence because if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided they might be as a defect in competence is not intrinsic, but rather extrinsic, to the entire process of adjudication. Jurisdiction is the nerve centre of adjudication; It is the blood that gives life to the survival of an action in a court of law in the same way blood gives life to human beings and the animal race”.
See also LADOJA Vs. INEC (2007) 7 NWLR (Pt. 1047) PG 1; DAPLANLONG VS DARIYE (2007) 8 NWLR (Pt. 1036) at pg 333 S.C. Also the question of Jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. And if the court proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. See NNONYE Vs. ANYICHIE (2005) 2 NWLR (Pt. 910) 623 SC; A.G LAGOS STATE VS. DOSUNMU (supra). And in considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the Writ of Summons and the Statement of claim. See TUKUR VS. GOVT. of GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 S.C; GAFAR VS GOVT. KWARA STATE (2007) 4 NWLR (Pt. 1024) pg 375 S.C.
Furthermore, courts are creatures of statute and it is the statute that created a particular court that will also confer on it, its jurisdiction. Jurisdiction may be extended, not by the courts, but by the legislature. See GOVT. OF KWARA STATE VS. GAFAR (1997) 7 NWLR (Pt. 511) Pg 51 C.A; OKULATE Vs. AWOSANYA (2000) 1 S.C Pg 107. Furthermore, it is settled that a court is competent when the court is properly constituted as regards to numbers and qualification of the members of the bench, the subject matter of the case is within its jurisdiction, and the case comes before the court is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. And all the requirements must co-exist conjuctively before jurisdiction can be exercised by the court. See MADUKOLU Vs. NKEMDILIM (1962) 1 ALL NLR 587 SC; Sken Consult Vs. Okey (1981) 1 SC Pg 6; LUFTHANSA AIRLINES Vs. ODIESE (2006) 7 NWLR (Pt. 978) 39 C.A.
Having said all these, I have painstakingly perused and analysed the Originating Summons and all the Exhibits accompanying the Originating Processes, it is apparent that by paragraphs 1 – 6 and paragraphs 10 – 32 of the affidavit in support of the Originating Summons one can see that the dispute between the Claimants and the Defendants qualifies as a trade dispute looking in to the relationship between the Claimant and the 1st, 2nd and 3rd Defendants, and as such the Claimant can not ignite the jurisdiction of this court without complying with the provisions of sections 2, 4, 5, 6, 8, 9, 12 and 13 of the Trade Disputes Act, 2004; or to ignite the jurisdiction of this court pursuant to section 14 of the same act based on the fact that the 3rd Defendant is a Trade Union pursuant to the Trade Unions Act.
It is of legal importance to note that inter or intra union dispute qualifies as a trade dispute like in this case. See the case of N.U.R.T.W VS R.T.E.A.N (2001) 14 NWLR (PT. 733) 313. Also, an intra union dispute is a dispute within the union either between the members or between members and the union. See the case of UMOREN VS AKPAN (2008) 16 NWLR (PT. 1113) 223. The whole gamut of this centered on the allocation and sharing formula of check-off dues realized from the members of the 3rd Defendant in line with the provisions of the constitution of the 3rd Defendant which is a trade union therefore the action falls squarely within the intra union disputes. And the 3rd Defendant having listed as No. 24 among the recognized trade unions under the law as well as in the 3rd schedule to the trade unions act this court can not find otherwise. The provisions of the trade disputes must first be complied with before igniting the jurisdiction of this court. See the case of MADU VS NIGERIAN UNION OF PENSIONERS (2001) 16 NWLR (PT. 739) 346.
Furthermore, the Calabar Division of this court presided by Hon. Justice E.N AGBAKOBA in Suit No: NICN/CA/04/2016 between NIGERIAN UNION OF PENSIONERS VS MR. BASSEY B. OKOSIN & ORS, AT PAGE 15, it was held as follows:
“But with regard to the 1st – 9th (defendants) being pensioners the question would arise as to whether this court is the proper venue to resolve a dispute between the Claimant and its members especially as any dispute between the Claimant and its members qualifies as a trade dispute to which by law must be subjected to the mediation conciliation and arbitration provision of the Trade Dispute Act. The law is that a trade dispute (inter union disputes) must go through the dispute resolution processes of mediation, conciliation and arbitration before adjudication before this court arise. See Part 1 of the TDA. In other words, as relates to trade disputes, the jurisdiction of this court over such disputes is one that is appellate, not original; and this remains so despite Section 254C (1) of the 1999 Constitution as amended. This is because, the jurisdiction of this court has not in any way been taken away by insisting that such disputes go through mediation, conciliation and arbitration before adjudication before the court is undertaken. The jurisdiction of this court is merely contingent on the processes of Part 1 of the TDA being exhausted first before this court can be approached. It is accordingly my findings that the complaint of the Claimants as regards their claims against the 1st – 9th (and by extension the 10th Defendants constitute as a trade dispute. This being the case, this court has no original jurisdiction over it.”
Finally, based on the reasons I enumerated ab-initio its my ardent belief that this suit is incompetent, the claimants having failed to comply with the Trade Disputes Act. The Preliminary Objection raised by Counsel to the 1st, 2nd and 4th Defendants succeeds. And I resolved the first issue in favour of the 1st, 2nd and 4th defendants.
Having resolved the first issue in favour of the 1st, 2nd and 4th Defendants, I think there is no need to consider the second issue which was formulated by this court, since doing that will amount to an academic exercise. In view of that the matter is hereby struck out. Parties are to bear their respective costs.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
Signed
