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INCORPORATED TRUSTEES OF THE NATIONAL ASSOCIATION vs ALHAJI MUSA KONTO & ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. N. AGBAKOBA

 

 

 

DATED 17TH JUNE 2019                                            SUIT NO: NICN/ABJ/260/2018

 

BETWEEN

 

  1. INCORPORATED TRUSTEES OF THE

NATIONAL ASSOCIATION

COMMUNITY HEALTH

PRACTITIONERS OF NIGERIA

 

  1. THE PRESIDENT,

NATIONAL ASSOCIATION OF                                  CLAIMANTS

COMMUNITY HEALTH

PRACTITIONERS OF NIGERIA

 

  1. THE GENERAL SECRETARY,

NATIONAL ASSOCIATION OF

COMMUNITY HEALTH

PRACTITIONERS OF NIGERIA

 

AND

 

  1. ALHAJI MUSA KONTO
  2. IRABOR VICTOR O.
  3. JAFARABDULLAHI
  4. MUH’D YAHAYA
  5. ELIJAH ZAKWOYI            DEFENDANTS
  6. BALA SALE
  7. ENOCH EMMANUEL
  8. YAKUBU A. ZAKSHI
  9. IBAMA ASITON A.S

REPRESENTATION:

  1.             The Claimants instituted this action via Originating Summons filed on 12th October, 2018 supported by a 4 paragraph affidavit deposed to by Ebenezer Chigoziri Egwuatu, against the Defendants praying this Honourable court for the determination of the following questions:
  1. Whether by the Provision of the Constitution of the National Association of Community Health Practitioners of Nigeria, the      Acting Registrar of the Community Health Practitioners       Registration Board has the Power to convene any meeting of   members of the Association without the consent, approval and      inputs of the President and General Secretary of the Association in      compliance with the constitution of the Association.
  1. Whether the meeting of members of the Association held on the       12th of September, 2018 which was summoned by the Acting     Registrar of the Community Health Practitioners Registration         Board is not ultra vires the powers of the said Acting Registrar and     therefore the deliberations, resolutions and directives reached in       the said meeting null, void and of no effect whatsoever same             having been held in contravention of the constitution of the 1st       Claimant Association.
  1. Whether the vote of no confidence passed against the 2nd      Claimant at the said meeting summoned by the said Acting Registrar held on the 12th of September, 2018 without according       the 2nd Claimant requisite fair hearing as required by the         constitution of the 1st Claimant is not illegal null, void and of no      effect whatsoever.
  1. Whether the financing, sponsoring and instigation of members of      the 1st Claimant by the said Acting Registrar to host the meeting       held on the 29th September, 2018 to victimise the leadership of        the 1st Claimant is not malicious, illegal and ultra vires his powers     as enshrined in the Act establishing the Board.
  1. Whether the purported National Executive Council meeting of the      Association which purportedly held on the 29th day of September,       2018 at Summit Villas Hotel, Abuja duly financed, sponsored and            instigated by the Acting Registrar to maliciously witch hunt the       2nd and 3rd Claimants and other leaders of the 1st Claimant for         daring to challenge his illegal appointment as the substantive            Registrar of the Community Health Practitioners Registration         Board in suit No. FHC/ABJ/CS/956 Pending at the Federal High            Court Abuja is not, malicious, illegal, null and void and of no effect          whatsoever.
  1. Whether by the provision of Rule 17(l) (b) and Rule 17 (V) (b) and       (c) of the Constitution of the National Association of Community          Health Practitioners of Nigeria, the purported meeting held on the       29th day of September, 2018 at Summit Villas Hotel, Abuja was       properly convened and held same having not been summoned or       convened by neither the President of the Association nor the    General Secretary of the Association in compliance with the            Constitution of the Association and the general convention      relating to the powers of President and General Secretaries of the        Association to summon and convene meetings of the Association.
  1. Whether by the Provision of Rule 28(b) of the Constitution of the       National Association of Community Health Practitioners of Nigeria,   the purported National Executive Council meeting purportedly         held on the 29th day of September, 2018 at Summit Villas Hotel,       Abuja had the requisite number of members in attendance to form the quorum as required by Constitution of the Association to      pass the purported resolution so passed at the purported National       Executive Council meeting.
  1. Whether the purported resolution passed at the purported     National Executive Council meeting purportedly held by the          Defendants on the 29th day of September, 2018 at Summit Villas      Hotel, Abuja is valid in the eye of the law, such purported meeting     not being convened and held in accordance with the provisions          the Constitution of the National Association of Community Health        Practitioners of Nigeria.
  1. Whether the purported resolution passed at the purported     National Executive Council meeting purportedly held by the          Defendants on the 29th day of September, 2018 at Summit Villas      Hotel, Abuja is valid in the eye of the law, such purported         resolution not being passed by the requisite quorum to attend the            National Executive Council meeting and pass binding resolutions    at such meeting not formed by those in attendance, as provided       by the Constitution of the National Association of Community            Health Practitioners of Nigeria, assuming but not conceding that       the purported National Executive Council meeting of 29th day of          September, 2018 held at Summit Villas Hotel, Abuja was properly      convened by the Defendants.
  1. Whetherthe purported resolution of the purported National Executive Council meeting of the Association held on the 29th         September, 2018 which inter alia expelled the 2nd Claimant from     the membership of the 1st Claimant is not illegal, null, void and of     no effect whatsoever same having been made without according      the 2nd Claimant fair hearing as enshrined in the constitution of           the 1st Claimant.

WHEREFORE THE CLAIMANTS SEEK THE FOLLOWING RELIEFS:

 

  1. A DELARATION BY THIS HONOURABLE COURT that the Acting            Registrar of the Community of Health Practitioners Registration       Board has no power whatsoever under the constitution of the 1st   Claimant to summon a meeting of members of the 1st Claimant       without the approval, consent and input of the 2nd Claimant- the      National President of the 1st Claimant.
  1. A DELARATION BY THIS HONOURABLE COURT that the purported     meeting of members of the t Claimant, which meeting was      summoned and convened by the Acting Registrar of the       Community of Health Practitioners Registration Board on the 12th     September, 2018, ultra vires the powers of the Acting Registrar of     the Community of Health Practitioners Registration Board.
  1. AN ORDER OF THIS HONORABLE COURT, reversing and declaring       the vote of no confidence passed on the 2nd Claimant at the           purported meeting of members of the 1st Claimant, which meeting was summoned and convened by the Acting Registrar of       the Community of Health Practitioners Registration Board on the        12th day of September, 2018, null, void and of no effect          whatsoever.
  1. A DELARATION BY THIS HONOURABLE COURT that the purported     National Executive Council meeting of the National Association of          Community Health Practitioners of Nigeria purportedly convened    and held by the Acting Registrar in concert with the Defendants on     the 29th day of September, at Summit Villas Hotel, Abuja is null,         void and of no effect whatsoever, as the Defendants lacks the        constitutional power to convene such meeting.
  1. A DECLARATION BY THIS HONOURABLE COURT that the          purported resolution passed by the Defendants at the purported          National Executive Council meeting of the National Association of      Community Health Practitioners of Nigeria purportedly convened       and held by the Acting Registrar in concert with the Defendants on   the 29th day of September, at Summit Villas Hotel, Abuja is null,          void and of no effect whatsoever as the Defendants had no       Constitutional power to convene the purported meeting and the        requisite quorum provided by the constitution to pass such      resolution, assuming the meeting was properly convened, was not          constituted.
  1. A DELARATION BY THIS HONOURABLE COURT that the purported     National Executive Council meeting of the National Association of          Community Health Practitioners of Nigeria purportedly convened    and held by the Defendants on the 29th day of September, at Summit Villas Hotel, Abuja was contrary to the express provision    of Rule 17(i) (b) and Rule 17 (V) (b) and (c) of the Constitution of    the National Association of Community Health Practitioners of       Nigeria.
  1. AN ORDER OF THIS HONOURABLE COURT reversing, nullifying           and setting aside the purported resolution passed at the     purported National Executive Council meeting of the National   Association of Community Health Practitioners of Nigeria         purportedly convened and held by the Defendants on the 29th         day of September, at Summit Villas Hotel, Abuja, the said    resolution having not been reached in line with the provisions of        the Constitution of the 1st Claimant.
  1. AN ORDER OF PERPETUAL INJUNCTION restraining the            Defendants their Servants, Agents and Privies from giving effect   howsoever described to the said purported resolution of the            purported National Executive Council meeting of the National             Association of Community Health Practitioners of Nigeria    purportedly convened and held by the Defendants on the 29th          day of September, at Summit Villas Hotel, Abuja.
  1. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st      Defendant from parading himself as the Acting National President         of the 1st Claimant.
  1. AN ORDER OF PERPETUAL INJUNCTION restraining the            Defendants their Servants, Agents and Privies from ever calling           for, summoning, organizing, convening or convoking a National      Executive Council meeting of the 1st Claimant except as expressly       provided in the constitution of the 1st Claimant.
  1. THEcost of this suit.

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT ARE AS FOLLOWS:

  1. That on the 12th day of September, 2018, the Acting Registrar of       the Community of Health Practitioners Registration Board,         without the consent, approval and input of the 1st Claimant   convened a purported meeting of members of the 1st Claimant.
  1. That the Acting Registrar of the Community of Health Practitioners    Registration Board, has not powers, right or authority whatsoever     under the constitution of the 1st Claimant to convene the         purported meeting of 12th September, 2018 without the consent,     approval or input of the 1st Claimant.
  1. That at the illegal, unlawful and unconstitutional meeting         purportedly convened by the Acting Registrar of the Community      of Health Practitioners Registration Board, a resolution was       reached and a vote of no confidence was purportedly passed on         the 1t Claimant by the Defendants.
  1. That the Acting Registrar of the Community of Health Practitioners    Registration Board instigated the Defendants to convene a          purported meeting of members of the 1st Claimant on the 29th          day of September, 2018, which meeting was purportedly held at        Summit Villas Hotel, Abuja without the knowledge of the 2nd and   3rd Claimants
  1. That by the provisions of Rule 17(l) (b) and Rule 17 (V) (b) and (c)        of the Constitution of the National Association of Community          Health Practitioners of Nigeria (1st Claimant), the 2nd and 3rd         Claimants are constitutionally empowered to attend every       meeting of the 1st Defendant and in this particular instance the      National Executive Council Meeting.
  1. That the Defendants, in total violation and flagrant disregard for         the constitution of the 1st Claimant surreptitiously convened and    held a clandestine meeting on the 29th of September, 2018 at        Summit Villas Hotel Abuja, and purportedly dubbed the said   meeting a National Executive Council Meeting of the 1st Claimant,      which meeting was not attended by the 2nd and 3rd Claimants        who are constitutionally empowered and mandated to attend       every meeting of the 1st Defendant by reason of the sensitive             position they occupy respectively in the 1st Defendant.
  1. That at the purported National Executive Council Meeting        convened and held by the Defendants on the 29th of September,           2018 at Summit Villas Hotel Abuja, which meeting was clandestine   and convoked in bad faith and in total disregard for the            constitution of the 1st Claimant, hence the 2nd and 3rd Claimants were not notified of the meeting for the 2nd and 3rd Claimants to      jointly determine the items to be included in agenda in line with       powers of vested on the 2nd and 3rd Claimants under Rule 8(vi) of     the Constitution of the 1st Claimant; the Defendants purportedly      passed some resolutions, among which were:
  1.             The indefinite expulsion of the 2nd Defendant from the Association. –
  2.             The appointment of the 1st Defendant as the Acting National President, who is currently parading himself as such, thereby usurping the position of the 2nd Claimant.

                                                    III.            The setting up of a disciplinary committee to mete out disciplinary action against the 2nd Claimant who is actively and efficiently serving the association.

  1. That the 1st Defendant, in giving effect to the purported           resolution reached at the purported National Executive Council meeting convened and held by the Defendants on the 29th of   September, 2018 at Summit Villas Hotel Abuja in flagrant        disregard for the provision of the constitution of the 1st Claimant,   has been parading himself as the Acting National President of the        1st Claimant, thereby usurping the position of the 2nd Claimant.
  1. That the purported resolutions reached at the clandestine and            purported National Executive Council meeting convened and held           by the Defendants on the 29th of September, 2018 at Summit Villas Hotel Abuja in flagrant disregard for the provision of the       constitution of the 1st Claimant have subjected the 2nd and 3rd         Claimants to severe emotional, psychological, and psycho-social trauma as they are now being treated as social pariah.
  1. That the under Rule 8 (vi) of the constitution of the 1st Claimant, the and 3rd Claimants are empowered to jointly determine the        items to be included in the agenda of the National Executive Council meeting of the 1st Claimant, however, the agenda of the        purported National Executive Council meeting convened and held       by the Defendants on the 29th of September, 2018 at Summit     Villas Hotel Abuja in flagrant disregard for the provision of the       constitution of the 1st Claimant was not prepared by the 2nd and      3rd Claimants as stipulated by the Constitution of the 1st        Claimant, thereby making the purported National Executive Council meeting and the resolutions passed thereat illegal,       unlawful, unconstitutional, illegitimate, null, void and of no effect      whatsoever.
  1. That under Rule 9 (x) of the constitution of the 1st Claimants, the Defendants have no power whatsoever to convene, convoke, call             for, summon or hold the purported National Executive Council            meeting convened and held by the Defendants on the 29th of       September, 2018 at Summit Villas Hotel Abuja in flagrant        disregard for the provision of the constitution of the 1st Claimant.
  1. That the 1st Claimant and its members are being directly affected by the illegal and unlawful acts of the Defendants in brazen,                 flagrant and blatant disregard of the clear provisions of        constitution of the 1st Claimant.
  1.             The Claimants/Applicants also filed a MOTION EX-PARTE on October, 2018 supported by a 4 paragraph affidavit deposed to by Ebenezer Chigoziri Egwuatu, praying the Honourable Court for the following orders;
  1. AN ORDER of Interim injunction restraining the Defendant either        by themselves, agents, servants and or privies or any other    person(s) howsoever described or called from giving effect to the        purported Vote of No Confidence purportedly passed by them on       the 12th of September, 2018 on the leadership of the 2nd          Claimant/Applicant as the .President of the 1st Claimant pending     the hearing and determination of the Originating summons.
  1. AN ORDER of Interim injunction restraining the Defendants either      by themselves, agents, servants and or privies on any other   person(s) howsoever described or called from acting on the       purported Expulsion of the 2nd Claimant/Applicant by denying or      depriving the 2nd Claimant/Applicant any of his rights and/or   privileges as the President of the 1st Claimant under the            Constitution of the 1st Claimant pending the hearing and         determination of the Plaintiffs/Applicants Originating Summons.
  1. AN ORDER of Interim injunction restraining the Defendants either      by themselves, agents, servants and or privies or any other    person(s) howsoever described or called, from taking any step or      further steps or doing anything to the harassment, prejudice or          embarrassment of the 2nd and 3rd Claimants/Applicant pursuant    to or in furtherance of the purported Resolution reached by the         Defendants on the 29th of September, 2018 pending the hearing       and determination of the Originating Summons.
  1. AN ORDER of Interim injunction restraining the Defendants     whether by themselves, agents, servants and/or privies or         otherwise howsoever from Expelling from membership or further       expelling from membership, passing a vote of no confidence or           taking any steps or decision to expel the 2nd and 3rd        Claimants/Applicant from the Association or terminating the 2nd     and 3rd Claimants membership of the 1st Defendant pending the       hearing and determination of the Originating Summons.
  1. AN ORDER of Interim injunction restraining the Defendants their        Servants, Agents and Privies from giving effect howsoever   described to the said purported resolution of the purported            National Executive Council meeting of the National Association of       Community Health Practitioners of Nigeria purportedly convened       and held by the Defendants on the 29th day of September, at            Summit Villas Hotel, Abuja Pending the hearing and determination        of the Originating Summons.
  1. AN ORDER of Interim Injunction restraining the Defendants their        Servants, Agents and Privies from ever calling for, summoning,       organizing, convening or convoking a National Executive Council            meeting or any other meeting of the of the 1st Claimant pending        the hearing and determination of the Originating Summons.
  1. AN ORDER of Interim Injunction restraining the 1st Defendant            from parading himself as the Acting National President of the 1st     Claimant pending the hearing and determination of the            Originating Summons.
  1. AN ORDER of Interim Injunction restraining the Defendants from        writing further letters indicating that they have taken over the         affairs of the association or any other further letter on behalf of         the 1st Claimant to any person, group of person or persons and          purporting to act on behalf of the 1st Claimant pending the       hearing and determination of the Originating Summons.
  1. AN ORDER of Interim Injunction restraining the Defendants from        holding meetings and further going around the Country holding      meetings and conducting affairs in the name of and or on behalf         of the 1st Claimant pending the hearing and determination of the       Originating Summons.

GROUNDS IN SUPPORT OF THE APPLICATION

  1. There exist a very urgent need for the res of the litigation to be           preserved by an order of injunction, as the Defendant in concert           with the acting Registrar may take steps, any moment from now,        to expel or if not expel, deny the 2nd and 3rd      Claimants/Applicants the rights and/or privileges due to them as    President and General Secretary of the 1st Claimant/Applicant.
  1. Unless the Defendants are restrained, further steps may be taken       against the Claimant with a view to harassing, prejudicing and/or embarrassing the 2nd and 3rd Claimants/Applicants.
  1. This application is extremely necessary to preserve the res of this       Suit and prevent the foisting of a fait accompli on this Honourable            Court.
  1.             In their WRITTEN ADDRESS IN SUPPORT OF MOTION EXPARTE they raised the following ISSUE.

Whether having regards to circumstances of this case and the Affidavit in Support of this application, the Claimants/Applicants is entitled to an order of interim injunction in the terms sought in this application.

 

  1.             Learned Counsel submitted that in an application of this nature which seeks the grant of an order of interim injunction, the applicable principles guiding its grant or refusal are well settled by a plethora of judicial decisions. Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; Obeya Memorial Hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325; Akapo v. HakeemHabeeb (1992) 6 NWLR (PT. 247) 266; Buhari & Ors. v. Obasanjo & Ors. (2003) 17 NWLR (Pt. 850) 587.

 

  1.             He submitted that from the depositions and questions for determination contained therein, the Claimants’ suit raises serious and substantial questions of law of grave Constitutional importance. Onyesoh v. Nnebedum & Ors. (1992) 3 NWLR (Pt. 229) 315 at p. 318.

 

 

On Balance of Convenience

 

  1.             The Claimant Counsel posited that BELGORE, JSC (as he then was) in Buhari v. Obasanjo (supra) set out the questions which a court faced with determining balance of convenience should ask itself. They are:

(1)    Who will suffer more inconvenience if the application is granted?

(2)    Who will suffer more inconvenience if the application is not granted?

Akapo v. Hakeem-Habeeb (supra) at p. 293, para. C; Missin & Ors. v. Balogun (1968) 1 All NLR 318.

 

  1.             He argued that if the reliefs sought by the Claimant/Applicant in this application are not granted, it is the Claimants that will suffer more. ACS v. Awogboro (1991) 2 NWLR (Pt. 176) 711 at p. 719, per TOBI, JCA (as he then was).

 

  1.             The Claimants/Applicants further filed a MOTION ON NOTCE on 22nd October, 2018 supported by a 4 paragraph affidavit deposed to by Ebenezer Chigoziri Egwuatu, Esq. praying the Honourable Court for the following orders;
  1. AN ORDER of interlocutory injunction restraining the Defendant         either by themselves, agents, servants and or privies or any other   person(s) howsoever described or called from giving effect to the         purported Vote of No Confidence purportedly passed by them on       the 12th of September, 2018 on the leadership of the 2nd     Claimant/Applicant as the President of the 1st Claimant pending     the hearing and determination of the Originating summons.
  1. AN ORDER of interlocutory injunction restraining the Defendants       either by themselves, agents, servants and or privies on any other person(s) howsoever described or called from acting on the       purported Expulsion of the 2nd Claimant/Applicant by denying or      depriving the 2nd Claimant/Applicant any of his rights and/or   privileges as the President of the 1st Claimant under the            Constitution of the 1st Claimant pending the hearing and         determination of the Plaintiffs/Applicants Originating Summons.
  1. AN ORDER of interlocutory injunction restraining the Defendants       either by themselves, agents, servants and or privies or any other   person(s) howsoever described or called, from taking any step or           further steps or doing anything to the harassment, prejudice or       embarrassment of the 2nd and 3rd Claimants/Applicant pursuant      to or in furtherance of the purported Resolution reached by the       Defendants on the 29th of September, 2018 pending the hearing       and determination of the Originating Summons.
  1. AN ORDER of interlocutory injunction restraining the Defendants       whether by themselves, agents, servants and/or privies or        otherwise howsoever from Expelling from membership or further      expelling from membership, passing a vote of no confidence or           taking any steps or decision to expel the 2nd and 3rd   Claimants/Applicant from the Association or terminating the 2nd     and 3rd Claimants membership of the 1st Defendant pending the       hearing and determination of the Originating Summons.
  1. AN ORDER of interlocutory injunction restraining the Defendants       their Servants, Agents and Privies from giving effect howsoever        described to the said purported resolution of the purported            National Executive Council meeting of the National Association of       Community Health Practitioners of Nigeria purportedly convened       and held by the Defendants on the 29th day of September, at            Summit Villas Hotel, Abuja Pending the hearing and determination        of the Originating Summons.
  1. AN ORDER of Interlocutory Injunction restraining the Defendants       their Servants, Agents and Privies from ever calling for,          summoning, organizing, convening or convoking a National       Executive Council meeting or any other meeting of the of the 1st        Claimant pending the hearing and determination of the        Originating Summons.
  1. AN ORDER of Interlocutory Injunction restraining the 1st         Defendant from parading himself as the Acting National President         of the 1st Claimant pending the hearing and determination of the      Originating Summons.
  1. AN ORDER of Interlocutory Injunction restraining the Defendants       from writing further letters indicating that they have taken over   the affairs of the association or any other further letter on behalf   of the 1st Claimant to any person, group of person or persons and     purporting to act on behalf of the 1st Claimant pending the       hearing and determination of the Originating Summons.

GROUNDS IN SUPPORT OF THE APPLICATION

  1. There exist an urgent need for the res of the litigation to be     preserved by an order of injunction, as the Defendant in concert           with the acting Registrar may take steps, any moment from now,        to expel or if not expel deny the 2nd and 3rd Claimants/Applicants     the rights and/or privileges due to them as President and General       Secretary of the 1st Claimant/Applicant.
  1. Unless the Defendants are restrained, further steps may be taken       against the Claimant with a view to harassing. Prejudicing and/or embarrassing the 2nd and 3rd Claimants/Applicants.
  1. This application is extremely necessary to preserve the res of this       Suit and prevent the foisting of a fait accompli on this Honourable            Court.

WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTCE

ISSUE

Whether having regards to circumstances of this-case and the Affidavit in Support of this application, the Claimants/Applicants is entitled to an order of interlocutory injunction in the terms sought in this application.

  1.             Learned Counsel submitted that in an application of this nature which seeks the grant of an order of interim injunction, the applicable principles guiding its grant or refusal are well settled by a plethora of judicial decisions. Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; Obeya Memorial Hospital v. A.-G., Federation (1987) 3 NWLR (Pt. 60) 325; Akapo v. HakeemHabeeb (1992) 6 NWLR (PT. 247) 266; Buhari & Ors. v. Obasanjo & Ors. (2003) 17 NWLR (Pt. 850) 587.

 

  1.  He submitted that from the depositions and questions for determination contained therein, the Claimants’ suit raises serious and substantial questions of law of grave Constitutional importance. Onyesoh v. Nnebedum & Ors. (1992) 3 NWLR (Pt. 229) 315 at p. 318.

 

On Balance of Convenience

 

  1.  Counsel posited that BELGORE, JSC (as he then was) in Buhari v. Obasanjo (supra) set out the questions which a court faced with determining balance of convenience should ask itself. They are:

(1)    Who will suffer more inconvenience if the application is granted?

(2)    Who will suffer more inconvenience if the application is not granted?

Akapo v. Hakeem-Habeeb (supra) at p. 293, para. C; Missin & Ors. v. Balogun (1968) 1 All NLR 318.

 

  1.  He argued that if the reliefs sought by the Claimant/Applicant in this application are not granted, it is the Claimants that will suffer more. ACB v. Awogboro (1991) 2 NWLR (Pt. 176) 711 at p. 719, per TOBI, JCA (as he then was).
  1.  On the 21st November 2018 the Claimant Counsel sought to move his exparte application and the court asked to be addressed on the propriety of the claimants bringing this suit to this court considering the provision of Section 45 of the Trade Union Act vis a viz their incorporation documents attached to this motion paper.
  1.  The Claimant Counsel had submitted in open court, on the 22nd November 2019, in response to the issues raised duo moto by the court, that by virtue of Section 254C 1999 CFRN this court is imbued with jurisdiction and argued further that the issues in this suit relate to trade unions and as they {the claimants} were already carrying out the activities of s Trade Union the Court should deem the Claimants a Trade Union. Submitting further that in the events that the Court finds that it lacks the jurisdiction due to the provisions of Section 45, the court should make a preservation order in their favour,

To the Claimants their registration was due to the refusal of the Minister of Labour to register them as a Trade Union, referring the Court to NICN ABJ 27 2017.

 

  1.  The Claimants/Applicants filed a MOTION EXPARTE FOR AMENDMENT on 23rd November, 2018 supported by a 2 paragraph affidavit deposed to by Ebenezer Chigoziri Egwuatu, praying the Honourable Court for the following orders;
  1. AN ORDER of Court Striking out the name of the Incorporated            Trustees – of the National Association of Community Health    Practitioners of Nigeria as the 1st Claimant in this suit.
  1. AN ORDER OF COURT granting leave to the Applicant to amend         the names of the 2nd and 3rd Claimant on the Originating    summons filed on the 12th Day of October, 2018 by including their     personal names, as the breach complained of in this suit is against     their person. Their names being 1. Comrade Jude O. Akor 2.        Comrade Lawrence O. Ewdrujakpo, Esq.
  1. AN ORDER OF COURT Amending the name of the Claimant on the     Originating Summons to reflect as Comrade Jude O. Akor and   renumbering same as the 1st Claimant in this suit.
  1. AN ORDER OF COURT Amending the name of the 3rd Claimant on     the Originating Summons to reflect as Comrade Lawrence O.            Ewdrujakpo, Esq. and renumbering same as the 2nd Claimant in        this Suit.

 

WRITTEN ADDRESS

ISSUE

Whether the Claimants have made out a case for the grant of an order amending their Originating Summons.

  1.  Learned Counsel submitted that the principles governing an amendment of pleadings/originating processes was again recently restated in the case of Olagbegi —v. Ogunyoye (1996) 5 NWLR (Pt. 448) 332. That in summary, the court will allow an amendment if:

(1)    It will assist the court in resolving the issues in controversy between the parties;

(2)    It will not prejudice the other party;

(3)    The proposed amendment is not overreaching and relates to a fact in issue between the parties. Adekeye —v- Olubgade (1987) 3 NWLR (Pt. 60).

 

  1.  Counsel submitted that the relevant Court’s power to grant an amendment is provided in Order 26 of the National Industrial Court Civil Procedure Rules 2017. And that the Court will ordinarily grant an amendment if the purpose is to ensure a determination of the real question in controversy between the parties in the suit. Cropper v Smith (1884) 26 Ch. V 700,710,711, per Lord Bowen, L. J.; Ojah & Ors v Ogboni & Ors (1976) 1 NMLR 95; Amadi v Thomas Aplin & Co. Ltd (1972) All NLR 409.
  1.  Counsel further submitted that it is trite law that mistake of Counsel should not be visited on the litigant. Emmanuel S. Daniang V. Teachers Service Commission (1996) 5 NWLR (Pt. 446) 97.

Court’s Decision

 

  1.  I have carefully summarized the arguments of Claimant’s counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the Claimant’s contentions and written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises.
  1.  Before I delve in /to the merits of this case it is necessary to address some preliminary issues. Firstly the no evidence of service of the OS, or motion on notice and then the motion for exparte for amendment. Contrary to our rules.
  1.  The issues for determination in this suit, at this time, to my mind, are; –
  2. whether the Claimants can properly approach this court with the reliefs sought in this suit and
  3. whether the court can entertain their exparte motion for amendment.
  1.  Issue 1. Is a jurisdictional question and is required to be addressed before anything else. See the case of ALIMS (NIG.) LTD. V. U.B.A. PLC. (2013) 6 NWLR (PT. 1351) 613 S.C. Where it was held that “Jurisdiction of court is very fundamental. It should be determined at the earliest opportunity when raised. If a court lacks jurisdiction to hear and determine a case, the proceedings of the court is a nullity no matter how well conducted and decided. This is because, a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication: ”See also DAILY TIMES (NIG.) PLC v. D.S.V. LTD (2014) 5 NWLR (PT. 1400) 327 @ 355 C.A. Where the Court of Appeal held that “Jurisdiction is the blood that gives life to the survival of an action in a court of law. Without jurisdiction, the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be abortive exercise. Therefore, a court without the necessary jurisdiction automatically lacks the competence to try the case in the first place. (UTIH v. ONOYIVWE (1991) 1 NWLR (PT. 166) 166 referred to.] (P. 361, PARAS. F-H).The Court continued on the importance of jurisdiction the importance of jurisdiction is why the issue can be raised at any stage of a case, be it at the trial, or on appeal. A court can even raise the issue suo motu. [IJEBU-ODE L.G. v. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (PT. 166) 136; OLUTOLA v. UNILORIN (2004) 18 NWLR (PT. 905) 416. The Court of Appeal in held “The issue of jurisdiction is very fundamental as it affects the very foundation of the entire proceeding of the court. (P. 208, para. F).

 

  1.  It was held in UGBA V. SUSWAM (2013) 4 NWLR (PT. 1345) 427, that “The jurisdiction of a court is granted by statute or the Constitution but not by the court. No court has the jurisdiction to go beyond the provisions of the enabling law; otherwise any action by it will be ultra vires.
  1.  The jurisdiction of this court is determined by the Law setting up the Court. The jurisdiction of this court is as of now and in the main governed by Section 254 C (1) , (2), (3), (4) AND (5)  OF the 1999 CFRN See (unreported) NICN/LA/123/2012 FEMI BABALOLA Vs. ACCES+S BANK delivered on the 23rd  January 2013.  And sub Section (1) (a) & (k) particularly provides.

“The National Industrial court shall have and exercise jurisdiction to the exclusion of any other court or civil causes or matters-

Relating or connected to any labour, employment, trade union, industrial relation and matters arising from the workplace, condition of services, including health and safety, welfare of labour, employee, worker and matters incidental to or connected therewith.”.

 

  1.  Also in the case of S.C.C. (NIG.) LTD. V. SEDI (2013)1 NWLR (PT. 1335) 231 held  that; – “Where a statute has identified a court and donated to it an exclusive jurisdiction over a particular cause of action, the jurisdiction of other courts not similarly mentioned would appear to have been ousted.” LEVENTIS TECHNICAL LTD. V. PETROJESSICA ENTERPRISES LTD. (1992) 2 NWLR 459 C.A.
  1.  Although the claim of the claimant falls within the jurisdictional ambit of this court the provision of Section 45 of the Trade Union Act 2004 which states that for purposes of the TUA under CAMA is void. See MINISTRY OF WORKS & TRANSPORT ADAMAWA STATE v. YAKUBU (2013) 1 MJSC (PT. 11) 65 @ 69.
  1.  The claimants registered Companies and Allied Matters Act (CAMA) and are requesting requires this court to deem it a trade union. Now a Trade Union is defined………….
  1.  It is pertinent to note here that labour Law has been described as an amalgam or consists of pre employment, employment as well as post-employment issues, furthermore the Supreme Court in the case of MADU Vs. NIGERIAN UNION OF PENSIONERS [2001] 16 NWLR (Pt. 730) 346 held that “Since the Nigerian Union of Pensioners is listed and named as a Trade Union in the 3rd Schedule to Decree No. 4 1996 the court cannot find otherwise”. This court too cannot find otherwise.
  1.  I find and hold that the claimants having registered under CAMA, cannot perform functions of a trade union. SECTIONS 2(1) and 45 of the TRADE UNION ACT. And thus do not fall within the ambit of this court.

 

 

 

 

 

 

 

 

 

 

 

 

 

RESEARCHED AUTHORITIES

CHIEF SAMUEL ADEBISI FALOMO VS OBA OMONIYI BANIGBE & ORS. (1998 Legalpedia SC BZ93) (suit number: SC. 127/1995)

ESSENCE OF INTERLOCUTORY INJUNCTION

An interlocutory injunction is granted before the trial of an action and its primary object is to keep matters in status quo ante bellum until the question at issue between the parties can be finally determined by the court, thus facilitating the administration of justice at the trial. Per Iguh J.S.C.

BASIS FOR THE GRANT OF INTERLOCUTORY INJUNCTION

It is not necessary that for the plaintiff to succeed, the court in an application for interlocutory injunction should find a case which would entitle him to relief at all events. That is not the law. It is quite sufficient if the court finds a case which shows, as in the present case, that there is a substantial question to be investigated and that matters ought to be preserved in status quo ante bellum until that question can be finally dispose. Per Iguh J.S.C.

PARTY NEED NOT BE HEARD BY A PARTICULAR JUDGE

It is clear to me that it is not the constitutional right of any party to be heard by a particular judge. Per Iguh J.S.C.

FRANCIS EDET EKPENYONG & ANOR HON. OROK OTU DUKE & 5 ORS. CA (2008 Legalpedia CA FPK9) (Suit number: CA/C/NAEA/16/2008)

INTERLOCUTORY INJUNCTION – ISSUE RAISED THEREON-NATURE OF DISCRETION CONFERRED ON THE COURT IN RESPECT OF AN APPLICATION FOR INTERLOCUTORY INJUNCTION

“An application for interlocutory injunction raises the issue of exercise of discretion by the trial Court. The discretion conferred on the Court is not absolute as it is subject to its being exercised judicially and judiciously. PER THERESA NGOLIKA ORJI-ABADUA, JCA

EXERCISE OF DISCRETION-OBJECTIVE OF THE COURT THERETO

“The primary duty and objective of the Court in the exercise of its judicial discretion must be to attain substantial justice. The interests of both parties must be considered along with peculiar facts and circumstances of the case in order to arrive at a just and fair decision. It is then the Court can truly be said to have exercised its discretion both judicially and judiciously in accordance with established principles of law”. PER THERESA NGOLIKA ORJI-ABADUA, JCA

EXERCISE OF DISCRETION -WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH

”Unless it is shown that the trial Court exercised its discretion wrongfully, arbitrarily, illegally or mala fide, the exercise of the discretion shall not be interfered with by the appellate Court. It is immaterial that the appellate Court would have exercised the discretion differently”. PER THERESA NGOLIKA ORJI-ABADUA, JCA

EXERCISE OF DISCRETION BY A TRIAL COURT-WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH

“However, the appellate court is entitled to interfere with an exercise of discretion by a trial court if it is satisfied that it is in the interest of justice to do so. Apart from the rules and principles for the grant of the discretion sought, the court is also required to consider the doing of justice and equity to both parties under the circumstances of the case.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INTERLOCUTORY INJUNCTION- SCOPE OF

”Interlocutory injunction is concerned principally with the protection of the res and maintaining the status quo. It is only where the subject matter will be permanently destroyed and cannot be recovered or replaced or be completely distorted or defaced that an order of interlocutory injunction will be appropriate to maintain the status quo until the final determination of the substantive suit. The status quo to be maintained by the grant of an order of interlocutory injunction is the status quo ante bellum i.e., the state of affairs before the beginning of hostilities and not the status quo ante litem, which is, the state of affairs before the parties began to litigate.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INJUNCTION-WHEN A PARTY CAN SUE FOR INJUNCTION IN TRESSPASS ”It is also instructive to note that a person can only sue for injunction for trespass only if he is in possession”. PER THERESA NGOLIKA ORJI-ABADUA, JCA

POSSESSION-MEANING OF

“Possession of property or parcel of land means the occupation or physical control of the property or parcel of land either personally or through tenants, an agent or servant of the claimant”. PER THERESA NGOLIKA ORJI-ABADUA, JCA

POSSESSION-WHEN AN ORDER OF INJUNCTION WILL LIE THERETO

“Once a plaintiff has established that he is in possession of the land in dispute, an order of injunction would naturally flow to protect his possession unless the defendant proves a better title”. PER THERESA NGOLIKA ORJI-ABADUA, JCA

INJUNCTION-NATURE OF RIGHT OF AN APPLICANT THERETO

”The right of an applicant for injunction which would be protected by the grant of the order are the rights existing with regard to the state of things prevailing before the acts complained of by the applicant.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INTERLOCUTORY INJUNCTION-EFFECT OF TRANSFERING POSSESSION TO THE OPPOSING PARTY

”It is also an established principle of law that the granting of an interlocutory injunction as a result of which possession would be transferred from the party in possession to the opposite party will be contrary to the principle in maintaining status quo in the case until the determination of the suit.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INTERLOCUTORY INJUNCTION-FACTORS TO BE CONSIDERED BY THE COURT BEFORE GRANTING AN INTERLOCUTORY INJUNCTION

”I must state that the Supreme Court had, in a plethora of cases, held that in hearing an application for interlocutory injunction, the Court must consider the following factors in order to decide whether to grant or refuse the application. They are:

  1. There must be a subsisting action. The subsisting action must clearly donate a legal right which the applicant must protect;
  2. The applicant must show that there is a serious question to be tried, i.e that the applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence (if any);
  3. The applicant must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it;

4 The applicant must show that damages cannot be adequate compensation for the injury he wants the court to protect, if he succeeds at the end of the day;

  1. The applicant must show that there was no delay on his part in bringing the application.
  2. The applicant must make an undertaking to pay damages in the event of wrongful exercise of the court’s discretion in granting the injunction.

So, no order for an interlocutory injunction should be made on notice unless the applicant gives a satisfactory undertaking as to damages save in recognized exceptions. Where the court of first instance fails to extract an undertaking as to damages; an appellate court ought normally to discharge the order of injunction on appeal.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INTERLOCUTORY INJUNCTION- PRINCIPLE GOVERNING THE DETERMINATION OF BALANCE OF CONVENIENCE

”The principle governing determination of balance of convenience is that if the position is such that the applicant will suffer inconvenience more than the respondent if the order for interlocutory injunction is refused then the court will make the order. But if the applicant will not suffer any inconveniences or if the respondent to the application will suffer more inconvenience than the applicant if the order is made, then in such a case the order will not be made.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INTERLOCUTORY INJUNCTION-GRANT OF-FACTORS CONSIDERED BY THE COURT

”It is a well-established principle of law that hardship to the Defendant is a relevant consideration in the cases of injunctions. It is particularly of more insignificance and weight in cases of interlocutory injunctions than in those of final or permanent injunctions. Where hardship will be caused to the Defendant or indeed to third parties or to members of the public by the grant of the relief, this consideration will be taken into account by the court in determining whether it is just and convenient that an interlocutory injunction should issue and court of equity will not ordinarily and without special necessity interfere by injunction where this will have the effect of very materially injuring the rights of third persons not before the court. So even if there is no hardship to the defendant, an injunction may be refused if it would prejudice an innocent third party.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INTERLOCUTORY INJUNCTION-WHEN CAN BE GRANTED

”It is the law that when a court is asked to restrain a party from doing an act pending the decision in a matter before it, but the act has been done, no order to restrain will be made. This is so because what is sought to be prevented had happened. In other words an interlocutory injunction is not a remedy of an act which has already been carried out, and will not be granted where the act complained of is irregular.” PER THERESA NGOLIKA ORJI-ABADUA, JCA

INTERLOCUTORY INJUNCTION- PURPOSE OF

”The purpose of an interlocutory injunction is to maintain the status quo pending the determination of the substantive suit. Status quo is the state of affairs existing during the period immediately preceding the issuance of the writ.” PER JEAN OMOKRI JCA

HON. JUSTICE T.A.A. AYORINDE VS A-G AND COMMISSIONER FOR JUSTICE OYO STATE & ORS. (1996 Legalpedia SC WAY5) (Suit number: SC.54/1995); [1996] 3 NWLR (PT. 434) 20 S.C.

BASIS FOR THE GRANT OF INTERLOCUTORY INJUNCTION

As a matter of practice and principle interlocutory injunctions are not granted as a matter of course. Per UWAIS, CJN

Cases on amendment

SSACTAC & ANOR. v. NRC & ORS. (2014) 48 NLLR (PT. 157), per Adejumo, (PJ)

On Purpose of an amendment

The purpose of an amendment is to ensure that the issues or questions in controversy between the parties are determined and thereby put an end to litigation.

On When amendment will be refused

An amendment will be granted except there is evidence of bad faith or such prejudice that cannot be compensated in cost. (A.U. AMADI v. THOMAS APLIN & CO. LTD (1972) 1 ALL NLR (PT. 1) 413 @ 421-423.

NIG. BOTTLING CO. PLC v. UBANI (2013) 12 (PT. II) M.J.S.C. 1 @ 9

On Circumstances when the Court will permit amendments of pleadings –

The Law allows amendments of pleadings at a trial even up to and before judgment so long as the averments are material and intended to bring out the real issues in controversy between the parties before the court for adjudication once and for all in order to avoid multiplicity of action. (CONCORD PRESS LTD. v. OBIJO (1990) 7 NWLR (PT. 162) 303.

Ologun V. Fatayo (2013) 1 NWLR (pt. 1335) 303 at 305,

On Aim of an Amendment and When it can be granted or refused –

“The aim of an amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on a litigant. The courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time be used to perpetuate an injustice on the opposite party. The test as to whether a proposed amendment should be allowed is therefore whether or not the party applying to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs.”. Akaninwo V. Nsirim (2008) 9 NWLR (pt. 1093) 439.

On Purpose of Amendment –

“…Amendment enables the slips, blunders, errors and inadvertence of counsel to be corrected in the interest of justice, ensuring always that no injustice is occasioned to the other party.”

Kode V. Yussuf (2001) 4 NWLR (pt. 703) 392.

On Discretionary power of Court to grant an Amendment –

“The power to grant or refuse an amendment is discretionary. As with the exercise of all discretionary powers, the discretion must be exercised judiciously and judicially taking into account competing rights of the parties to justice.”

NIGERIAN DYNAMIC LTD. V. DUMBAI (2002) 15 NWLR (PT. 789) 139 AT 154, PARAS. C-D, per Obadina, JCA

On discretionary power of court to grant amendment of pleadings –

“A court is bound to grant leave to amend a pleading If the amendment becomes necessary for the purpose of determining the real question or questions in controversy between the parties, unless where the applicant is acting malafide or where by his blunder, he has done some injury to the respondent which cannot be compensated for by costs or otherwise. In other words, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case.

On principles guiding amendment of pleadings –

“An amendment of pleading for the purpose of determining the real question in controversy between the parties ought to be allowed at any stage of the proceedings unless such amendment will:

  1. a)Entail injustice or surprise or embarrassment to the other party; or
  2. b)The applicant is acting malafide; or
  3. c)By his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise.

In other words, the discretion ought to be exercised so as to do what justice and fair play may require in the particular case. Adetutu V. Aderohunmu (1984)1 SCNLR 515 referred to.] (p.153, paras. F-G)

On objects of courts –

“The object of courts is to decide the rights of the parties, and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise in accordance with their rights. There is no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct if it can be done without injustice to the other party.

On objects of courts –

“Courts do not exist for the sake of discipline, but of the sake of deciding matters in controversy, and so an amendment to correct an error which is not intended to overreach or which is not fraudulent should be granted and such an amendment is not a favor or grace. Thus, as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right. In the instant case, the proposed amendment would not be unjust to the respondent, on the contrary, it raised points which were to be vital to the respondent’s case and unless they are adjudicated upon, the real issue between the parties will be left undecided. The trial court was therefore in error when it refused the application for amendment. Oguntimehin V. Gubere (1964) 1 ALL NLR 176 referred to.] (p. 156-157, paras. H-G)

On Factors court considers in application for amendment of Pleadings –

“The inherent power of the court to amend pleadings is not mechanically applied. Each case must be considered on its merit. The court must therefore consider:

  1. a)The attitude of the parties;
  2. b)The nature of the amendment sought in relation to the main suit;
  3. c)The questions in controversy;
  4. d)The time factor;
  5. e)The state at which the proceedings had reached; and
  6. f)All the circumstances surrounding the case.

Oyegoke V. Hamman (1990) 4 NWLR (pt. 143) 206 referred to.] (p. 154, pars. B-D)

 

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