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National Industrial Court

NIGERIA UNION OF LOCAL GOVERNMENT EMPLOYEES & 4 Ors –

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 21ST NOVEMBER, 2019                           SUIT NO: NICN/UY/34/2018

 

BETWEEN:

 

  1.  NIGERIA UNION OF LOCAL GOVERNMENT

            EMPLOYEES (NULGE)

  1. MRS. NKOYO OGBERE
  2. COMRADE UFOT SUNDAY GEORGE
  3. COMRADE RICHARD JACOB EKPE                             CLAIMANTS/
  4. COMRADE EDEM EYO EDUOK                                     RESPONDENTS

            (For themselves and as representing the other

            Branch Chairmen/Officials of NULGE Akwa

Ibom State)

 

AND

 

  1. COMRADE ANESTINA IWEH
  2. COMRADE OWOANAM AKPANWA
  3. COMRADE ADEBAYO AKEEM                                         DEFENDANTS/      
  4. LOCAL GOVERNMENT SERVICE COMMISSION        APPLICANTS
  5.  STERLING BANK PLC
  6. AKWA IBOM STATE GOVERNMENT

 

 

REPRESENTATION:

 

Ekanem Ekanem with Mercy Ibrahim for the Claimants/Respondents.

Uwem Umoh for 1st, 2nd and 3rd Defendants/Applicants

Ememobong N. Udoh for the 4th Defendant/Applicant

Betty Bassey for the 6th Defendant/Applicant.

 

RULING

 

On 22nd October, 2018, the Claimants filed an originating summons against the Defendants praying for the determination of the following questions:

 

  1. Whether the 1st, 2nd Defendants and any other person can validly occupy and function in an office in the 1st Claimant into which they were not duly elected in view of the provisions of Rule 5 (iv) and 21 (i) of the Nigeria Union of Local Government Employees (NULGE).

 

  1. Whether the 1st to 3rd Defendants can validly conduct election into state and local branch executive offices of the 1st Claimant when the State President had not given directive to that effect in view of the provisions of Rule 24 (xii) of the Nigeria Union of Local Government Employees (NULGE) Constitution and in view of the subsistence of tenure of offices of the Claimants and other persons validly elected into and validly occupying such offices and in view of the provision of Rule 21 (iv) of the Constitution of the Nigeria Union of Local Government Employees (NULGE) and the Industrial Arbitration Panel Award of 28/05/2018.

 

  1. Whether the Defendants are authorized to deploy the funds of the 1st Claimant for any other purpose than the purpose of attaining the objective of the union in view of the provisions of Rule 26 (v) of the Nigeria Union of Local Government Employees (NULGE) Constitution.

 

  1. Whether the funds of the 1st Claimant can validly be lodged with the 5th Defendant or any other bank other than the one designated at FCMB account number 3860963019 in view of the Industrial Arbitration Panel Award and the Nigeria Union of Local Government Employees (NULGE) Constitution.

 

  1. Whether the 1st Defendant can usurp, validly occupy the office of, and function as the Akwa Ibom State President of Nigeria Union of Local Government Employees (NULGE) when Comrade (Barr.) Martins Effiong is validly occupying the said office in view of the provisions of Rule 21 (1) and 24 (xii) of the Nigeria Union of Local Government Employees (NULGE) Constitution.

 

  1. Whether the 6th Defendant is empowered to deploy, redeploy, second or in any other manner or language remove the 1st Claimant’s Akwa Ibom State president, Comrade (Barr.) Martins Effiong from the Akwa Ibom State Local Government Service where he was employed and served, to the Akwa Ibom State Civil Service without his consent.

 

  1. Whether the transfer of the 3rd to 5th Claimants and other branch chairmen of the 1st Claimant from their respective local government of service by the 4th Defendant during the pendency/subsistence of their tenure of office was proper in the circumstance of this case.

 

In the determination of these questions, the Claimants claim against the Defendants jointly and severally as follows:

 

  1. A declaration that the 1st, 2nd Defendants and any other person cannot validly occupy and function in any office in the 1st Claimant into which they were not duly elected in view of the provisions of Rule (5) (iv) of the Nigeria Union of Local Government Employees.

 

  1. A declaration that the 1st to 3rd Defendants cannot validly conduct election into state and local branch executive offices of the 1st Claimant when the State President, Comrade (Barr.) Martins Effiong has not given directive to that effect in view of the provisions of Rule 21 (iv) and 24 (xii) of the 1st Claimant’s Constitution.
  2. A declaration that the tenure of offices of the Claimants and other persons validly elected and who are Occupying offices in the 1st Claimant is subsisting despite their transfer, deployment, redeployment or secondment.

 

  1. A declaration that the Defendants are not authorized to deploy the funds of the 1st Claimant for any purpose, not being elected into offices of the union that would empower them to act as such in view of the provisions of Rule 26 (v) of the NULGE Constitution.

 

  1. A declaration that the Funds of the 1st Claimant cannot be validly lodged with the 5th Defendant or any other bank other than the one designated at First City Monoument Bank (FCMB) with account number3860963019 in view of the Industrial Arbitration Panel Award and the provisions of the 1st Claimant’s Constitution.

 

  1. A declaration that the 1st Defendant cannot usurp or validly occupy the office of and function as the Akwa Ibom State President of the 1st Claimant , when Comrade (Barr.) Martins Effiong was elected into, and is validly occupying the said office in view of the provisions of Rules 5 (iv), 3 (x), (xi) and 21 (i) of the 1st Claimant Constitution.

 

  1. A declaration that the 6th Defendant is not empowered, neither can it validly, in the circumstance of this case, deploy, redeploy, second or in any other manner or language remove the 1st Claimant’s Akwa Ibom State President, Comrade (Barr.) Martins Effiong from the Akwa Ibom State Local Government Service, where he was employed and served, to the Akwa Ibom State Civil Service without his consent.

 

  1. A declaration that the transfer of the 3rd to 5th Claimants and other local government branch chairmen of the 1st Claimant from their respective local governments of service by the 4th Defendant during the pendency/subsistence of their tenure of office was improper in the circumstance of this case.

 

  1. A declaration that the 4th and 6th Defendants exercised undue dominance over the Claimants by reason of the transfers of the 1st Claimant’s elected representatives away from their areas of service and by reason of the 4th and 6th Defendant’s refusal to accede to petitions made by the 1st Claimant and its affiliated trade unions to reverse the transfers.

 

  1. A declaration that Comrade (Barr.) Martins Effiong remains the Akwa State President of the 1st Claimant, and the 3rd to 5th Claimants, together with others elected along with them, remain branch chairmen of the 1st Claimant of the respective Local Governments where they were elected till the end of their tenure of offices.

 

  1. An order directing the 4th and 6th Defendants to return or post back the 3rd to 5th Claimants and other branch chairmen of the 1st Claimant to their respective Local Government Areas and Local Government Chairmen/Councils respectively to enable them complete their tenure as elected branch chairman.

 

  1. An order directing the 4th and 6th Defendants to return or post back the 1st Claimant’s Akwa Ibom State President, Comrade (Barr.) Martins Effiong, to the Local Government Service where he is employed and served before his deployment/secondment to enable him complete his tenure as elected State President of the 1st Claimant.

 

  1. An order restraining the 1st and 2nd Defendants from parading themselves as State President and Treasurer respectively of the 1st Claimant and from functioning as such.

 

  1. An order directing the 4th and 6th Defendants to henceforth pay check­off dues accruing to the 1st Claimant into the 1st Claimant’s First City Monument Bank (FCMB) account number 3860963019 or through elected representatives approved by the 1st Claimant.

 

  1. An order directing the 4th and 6th Defendants to fully implement all the resolutions contained in the 2015 post-strike Collective Agreement.

 

  1. An order restraining the 1st, 2nd and 3rd Defendants from conducting or overseeing the conduct of elections into the executive and other offices of the 1st Claimant.

 

On the 27th November, 2018, 4th Defendant entered appearance and filed a Statement of Defence and others processes. By leave of court on the 9th January, 2019, the 1st, 2nd and 3rd Defendants’ Joint Statement of Defence, Preliminary Objection and other accompanying processes were deemed properly filed and served out of time. The 4th Defendant and the 6th Defendants filed their Notice of Preliminary Objections on the 22nd March, 2019 and the 15th April, 2019 respectively. In opposition the Preliminary Objection by the 1st, 2nd and 3rd Defendants, the Claimants file a counter affidavit and a written address on the 25th March, 2019. The Claimants also filed a response to the Preliminary Objection on the 6th May, 2019. By way of a reply on points of law, the 1st to 3rd Defendants and 4th Defendants filed their replies on the 6th May, 2019 and 17th June, 2019 respectively. With these processes in place, the parties adopted their arguments for and against the preliminary objections on the 16th October, 2019.

 

NOTICE OF PRELIMINARY OBJECTION BY THE 1ST, 2ND AND 3RD DEFENDANTS

 

The 1st, 2nd and 3rd Defendants contended by way of preliminary objection that the court lacks jurisdiction to hear and determine this suit for being incompetent as presently constituted and should be struck out in limine. The grounds upon which the application is brought are as follows:

 

  1. That it amounts to fraudulent misrepresentation for the 2nd to 5th Claimants to commence this suit particularly in the 1st Claimant’s name, without express consent from the 1st Claimant.

 

  1. That the suit does not disclose a reasonable cause of action against the 1st to 3rd Defendants.

 

  1.  That the 2nd to 5th Claimants lack the locus standi to commence this suit in the first place.

 

NOTICE OF PRELIMINARY OBJECTION BY THE 4TH DEFENDANT

 

The Notice of Preliminary Objection of the 4th Defendant is praying the Court for the following orders:

  1. That this Honourable Court lacks jurisdiction to entertain this matter as this suit is inchoate, incompetent and in violation of the provisions of Section 2 (11) and (111) of the Akwa Ibom State Public Service Rules.

 

  1. Any further such Order as this Honourable Court may deem fit to make in the circumstance of this case.

 

The grounds upon which this application is brought is as follows:

 

  1. That the 2nd,  3rd, 4th, 5th claimants intentionally neglected the laid down procedures to be followed by any officer who intends to take his employer to Court as prescribed in the Akwa Ibom State Public Service Rules before rushing to this Court.

 

NOTICE OF PRELIMINARY OBJECTION BY THE 6TH DEFENDANT

 

The contention of the 6th Defendant is that this Court lacks jurisdiction to hear and determine this suit for being incompetent as presently constituted and should be struck out in limine.

The grounds for the Preliminary Objection are as follows:

  1. This Suit is incompetent having being filed outside the mandatory 3 Months period within which such could be filed pursuant to Section 2 (a) of the Public Officers Protection Act.

 

  1. This suit is inchoate.

 

SUBMISSION OF 1ST, 2ND AND 3RD DEFENDANTS

 

The 1st, 2nd and 3rd Defendants formulated four (4) issues for determination:

 

  1. Whether this suit is competent even when the 1st Claimant is fraudulently misrepresented.

 

  1. Whether there is a cause of action against the 1st to 3rd Defendants in this suit.

 

  1. Whether the 2nd to 5th Defendants have the locus standi to sue the 1st to 3rd Defendants for themselves and on behalf of a non-party.

 

  1. Whether the correct order the court has to make in the circumstance of this case is that of striking out the suit.

 

Issue one: Whether this case is competent even when the 1st claimant herein is fraudulently misrepresented.

 

The Defendants here answered this in the negative. The Defendants noted that the Claimants have instituted this suit by glaringly misrepresenting the 1st Claimant   and submitted that the law is trite that where a judgment is obtained as of fraud and or misrepresentation, such a judgment is void and must be upturned on appeal.

 

Relying in the case of Afegbai v. A.G. Edo State (2001) LPELR-193 (SC), went on to define fraudulent misrepresentation as a statement made knowingly, or without belief in its truth, or recklessly, careless whether it is true or false. On how to prove misrepresentation, the said Defendants quoted Georgewill, J.C.A. in Stanbic IBTC Bank v. Longterm Global Capital Ltd & Ors (2018) LPELR-44053 (CA) @ Ratio 21 thus:

 

“In law, to prove misrepresentation, the party so alleging must plead and prove the following elements constituting fraudulent misrepresentation, namely:

  1. the representation must be a statement of existing facts;
  2. the representation must be material and unambiguous; and
  3. the representee must show that he has acted in reliance on the misrepresentation.

It is thus important to note that in order to succeed in an allegation of fraudulent misrepresentation, the party so alleging and who carries the burden of proving these essential elements of fraudulent misrepresentation must faithfully on the balance of probability or preponderance of evidence discharge this burden to the satisfaction of the Court, failing which his claim must fail. See Afegbai v. Ag Edo State (2001) 14 NWLR (Pt.733) 425 @ p. 445. See Section 131 (2) Evidence Act.”  Per

 

Applying the above on the facts of this case, the Defendants submitted that they have proven that the claimants have fraudulently misrepresented the 1st claimant in this suit. To buttress this, the court was referred to paragraph 3 of the claimants’ affidavit in support of the originating summons, where the 3rd claimant stated on oath that he deposed to the affidavit with the knowledge, consent and authority of the 1st Claimant and on its behalf. The Defendants also referred to their exhibit DEF 2, in which the 1st Claimant issued a disclaimer and disassociated itself entirely from this suit.

 

Issue two: Whether there is a cause of action against the 1st to 3rd Defendants in this suit.

 

On the second issue, the Defendants have alluding to some basic principles on the concept of cause of action referred to the dictum of Suleiman Galadima, JSC on  what determines a cause of action in Hon. Goodluck Opia v. INEC & Anor, LER (2014) SC. thus:

 

“A cause of action is determined by reference to the plaintiff’s statement of claim. The immediate materials a court should look at are the Writ of Summons and averments in the statement of claim.”

 

From perusing the affidavit in support, the Defendants posited that the cause of action of this entire suit can is pronged into two phases, these are paragraphs 7 and 15 of the affidavit in support of the originating summons. Paragraph 7 is where the Claimants alleged that the 6th Defendant seconded the erstwhile President of Akwa Ibom State chapter of NULGE from the Unified Local Government Service to the Akwa Ibom State Civil Service. Paragraph 15 is the allegation that the 6th Defendant caused the 4th Defendant to transfer the 3rd, 4th and 5th Claimants and 17 others out of their respective Local Government Councils to new ones. It is the submission of the said Defendants that in both cases the 1st to 3rd Defendants are in no way responsible for the actions of the 6th Defendant and that the Claimants have failed to show any wrong or personal injury or damage they committed against the Claimants to ground a reasonable cause of action.

 

Issue three: Whether the 2nd to 5th Defendants have the locus standi to sue the 1st to 3rd Defendants herein for themselves and on behalf of a non-party.

 

The said Defendants answered the above poser in the negative and submitted that it is trite that for a claimant to sustain a claim of any kind against another party, that claimant must first of all possess the locus standi to do so citing the case of Nwankwo v. Ononeze-Madu (2009) 1 NWLR (Pt. 1123) @ Ratio 2 where the court held that:

 

“Locus standi means the legal capacity to institute proceedings in a court of law. Thus a person will have capacity to sue in a matter in which it has been clearly shown that his rights or obligations have been, or about to be, or are in imminent danger of being, violated or invaded or adversely affected by the act complained of, regard being had to the provision of section 6 (6) (b) of the 1999 Constitution.”

 

On how to determine locus standi can be then determined, the Defendants again quoted the case of Nwankwo v. Ononeze-Madu (Supra) @ Ratio 4 it held that:

 

“Whether or not a plaintiff has locus standi to sue in a matter is to be determined on the pleadings. There are no averments in the statement of claim that showed special interest on the part of the appellants.”

 

In line with the above case, a look at the claimant’s originating summons and the Questions for determination and Reliefs sought therein, make case for a non-party and beneficiary, Comrade Martins Effiong. It is therefore the bold submission of the Defendants that the locus standi in this suit rests squarely on the elusive Comrade Martins Effiong and not the 2nd to 5th Claimants. The said Defendants then went on to ask a barrage of questions which goes to the foundation of the case as regards locus standi: Whose rights or obligations have been, or are about to be, or are in imminent danger of being, violated or invaded or adversely affected in the circumstance? What is the legal right sought to be established by the 2nd to 5th claimants on behalf of a non-party? Can this honourable court safely grant reliefs that will manifestly benefit a non-party?

 

On the effect of lack of locus standi, the said Defendants made reference to the case of Frank Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113, where the apex court held in Ratio 3 thus:

 

“Locus standi denotes the legal capacity to institute proceedings in court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the court. Consequently, if the plaintiff does not have locus standi to institute the suit, the court would have no jurisdiction to entertain the suit. Usually, it is the plaintiff that is questioned as to whether he has locus standi.”

 

It is the further submission of the 1st to 3rd Defendants that the loss of legitimacy in the 1st Claimant (Akwa Ibom State chapter) has robbed them of the locus standi to institute this action in their former capacities. They cannot sue as Branch Chairmen of NULGE, neither as Members of its State Executive Council or on behalf of anyone in that stead. This incapacitation is beyond remedy taking into consideration the disclaimer from the 1st Claimant herein marked as Exhibit DEF 2.

 

Finally on the point, the 1st to 3rd Defendants submitted that the Claimants lack the locus standi to institute this action or to make claims benefitting a non-party either.

 

Issue four: Whether the correct order the court has to make in the circumstance of this case is that of striking out the suit.

 

On this issue and on the authority of Attorney General of Lagos State v. Attorney General of Federation (2014) 9 NWLR (Pt. 1412) 217 @ Ratio 7., it is submitted that where a court has found that it lacks the jurisdiction to hear and determine a suit, the apex court has held that the proper order would be that of striking out the suit.

 

SUBMISSION OF 4TH DEFENDANT

 

The 4th Defendant formulated three (3) issues for determination:

 

  1. Whether the Claimants have complied with the laid procedural rules in Chapter 10 Section 2 (ii) and (iii) of the Akwa Ibom State Public Service Rule of 2010, before embarking on the filing of this suit in this Honourable Court.

 

  1. In view of issue 1 above, whether the Claimant’s case has disclosed any reasonable cause of action.

 

  1. Whether the jurisdiction of this Honourable Court has been properly activated.

 

Issue 1:  Whether the Claimants have complied with the laid procedural rules in Chapter 10 Section 2 (ii) and (iii) of the Akwa Ibom State Public Service Rule of 2010, before embarking on the filing of this suit in this Honourable Court.

 

On this issue, it is the contention of the 4th Defendant that the originating summons filed by the 2nd – 5th Claimants and others represented is incompetent same being in violation of the provisions of Chapter 10 Section 2 (ii) and (iii) of the Akwa Ibom State Public Service Rule of 2010. He went on to state the provisions of sub-sections (ii) and (iii) thus:  

Sub Section (ii): “Without prejudice to one’s Constitutional rights, no officer shall seek redress in a court unless he has taken steps to exhaust all avenues provided in the relevant rules and circulars.”

 

Sub Section (iii): “Where an officer decides to seek redress in the law court, the officer should obtain permission from his employer and the permission should not be unreasonably withheld, or resign his appointment.”

 

To the 4th Defendant the above provisions have divested this Court of jurisdiction to entertain this matter for failure to comply with the condition precedent necessary to invoke the Court’s jurisdiction citing the case of Ayeni vs. Obasa (2011) All FWLR Pt. 586 p. 489 Ratios 1, 2, 3, 4 and 5. For effect, the 4th Defendant quoted the Supreme Court in the case of Adeola v. Ayeoba (2009) ALL FWLR (PT 458) 355 @ 362 Ratio 6 & 7:

 

“Where a statute prescribes a legal line of action for determination of an      issue, the aggrieved party must exhaust all the remedies in the law before going to court. Where an action is commenced and there is non-compliance with a stipulated pre-condition for setting the legal process in motion, the suit instituted in contravention of the condition precedent is incompetent and the court is incompetent to entertain it.”

 

On the point the 4th Defendant finally contended that it is clear from the reliefs sought, the claimants woefully failed to give due regards to the relevant provisions of the Akwa Ibom State Public Service Rule.

 

Issue 2:  Whether the Claimant’s case has disclosed any reasonable cause of action?

 

On this issue, the 4th Defendant submitted the cause of action in this case is determined by law regulating the affairs which is the Akwa Ibom State Public Service Rules which provides for when a cause of action arise and unless and until such point is reached, a matter is inchoate and cause of action does not accrue as in this case. As a result, the 4th Defendant cited the famous case of Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669, where it was held that:

 

“the Court would strike out a statement of claim where such statement of claim discloses no cause of action and the court is satisfied that no amendment however ingenious, will cure the defect, the statement will be struck out and the claims dismissed.”

 

Issue 3: Whether the jurisdiction of this Honourable Court has been properly activated.

 

The 4th Defendant submitted that so far as the Claimants did not exhaust the remedies prescribed by statutes before embarking on the action, the action is premature and does not give rise to a cognizable action to activate the jurisdiction of the court. To the 4th Defendant, the Claimants having not exhausted the remedies laid down by the relevant laws before embarking on this action have jumped the gun referring the case of Adigun v. Osaka (2003) 5 NWLR (Pt. 812) 95.

 

The 4th Defendant went on to cite a case not quite dissimilar to the instant case, Effiok v. Government of Cross River State & Ors (2011) All FWLR (Pt. 593) 1993 @ 1994, where the Court of Appeal had this to say:

“Where there is a non-compliance with stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the precondition provision of the relevant law is incompetent and a court of law is for that reason lacking in jurisdictional power to entertain it. In the instant case, the plaintiff commenced an action without compliance with the precondition; therefore, the trial court dismissed the action.”

 

SUBMISSION OF 6TH DEFENDANT

 

The 6th Defendant on its part formulated two (2) issues for determination:

 

  1. Whether the Claimants’ case is not statute barred thereby robbing the Court of its jurisdiction.

 

  1. Whether the Claimants’ suit is not inchoate and incompetent having regards to Chapter 10 Section (2) Rules 100201 (ii) a & (iii) and 100203.

 

Issue 1:         Whether the Claimants’ case is not statute barred thereby robbing the Court of its jurisdiction.

 

The 6th Defendant started by submitting that this action is statute barred thereby robbing the Court of its jurisdiction noting that an action is said to be statute barred if it is instituted at the expiration of the time allowed by the relevant law relying on Section 2 (a) of the Public Officers Protection Act and Section 1 of the Public Officers Protection Law Cap 104 Laws of Akwa Ibom State. Having noted that Section 2 (a) of the Public Officers Protection Act is in imparimateria with Section 1 of the Public Officers Protection Law Cap 104 Laws of Akwa Ibom State 2000, the 6th Defendant quoted the provisions of the former as follows:

 

  1.  “Where any action prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution of any law or of any public duty or authority or in respect of any alleged neglect or default in execution of any law, duty or authority.

 

(a)      The action, prosecution, or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing of such action”.

 

As to what determines the period of limitation, the 6th Defendant submitted that that has received judicial the answer in so many cases such as Okorocha v. Uba Plc (2011) NWLR Pt. 1228 Pg 373 PARA E, per Saulawa, JCA, Osuma v. J. C. Moulding (Nig.) Ltd. (2014) 6 NWLR (Pt. 1402) 17 38 and particularly referred to Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 619-620 in which Supreme Court held:

 

“In order to determine the period of limitation, consideration must be given to the writ of summons and statement of claim which alleged when the wrong was committed and by comparing that date with the date on which the writ of summons was filed. If the date the writ was filed is beyond the period allowed by the limitation law, then the action is statute barred”.

 

It is the further submission of the 6th Defendant that the cause that gave rise to this action according to the Claimants was the Letter of Secondment which took effect from 14th October, 2016, issued to Bar. Martins Effiong (whom the Claimants arc also suing on behalf) by the 6th Defendant and the wrong took place in October 2016, while this case filed in October 2018. It is therefore the case of the 6th Defendant that having filed this suit outside the statutory period of 3 Months, the case of the Claimants is statute barred.

 

On the effect of the Public Officers Protection Act and on the authority of Fadare v. Attorney-General of Oyo State (1982) 4 SC 1., the 6th Defendant submitted that the law removes the right of action, the right of enforcement and the right to judicial relief in a Plaint, it leaves the Respondent with a bare and empty or hollow cause of action which he cannot enforce.

 

On the question of when does time of the claimants begin to run for the purpose of limitation of action, the 6th Defendant argued that time will start to run when all the facts which constitute the Plaintiffs cause of action arose as in A.G Adamawa State v. A.G. Federation (2014) 14 NWLR (Pt. 1428) 515 @ 573, the Supreme Court said:

 

“for the purpose of the limitation of action, time begins to run from the moment the cause of action arose or accrued. Therefore, in determining whether an action is statute barred or not, it is pertinent to ask when time begins to run. Time begins to run when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the Plaintiff to succeed”.

 

It is therefore the submission of the 6th Defendant that the cause of action of the Claimant in this matter arose in 2016 and that was the time to file an action to recover his claim based on the Secondment. See the cases of Asaboro & Anor v. Pan Ocean Oil Corporation (Nig) Ltd & Anor (2017) LPELR41558 (SC); Fadare v. AttorneyGeneral of Oyo State (1982) 4 SC 1. As for the proper order to make under the circumstance, the 6th Defendant submitted that it should be for dismissal as happened in the case of Nasir v. C.S.C., Kano State (2010) 6 NWLR Part 1190 Pg. 253.

 

ISSUE 2:        Whether the Claimants suit is not inchoate and incompetent having regards to Chapter 10 Section (2) Rules 100201 (ii) a & (iii) and 100203.

 

On this issue, the 6th Defendant contended that the Claimants action is premature, inchoate and incompetent therefore robbing this Court of the requisite jurisdiction to entertain it. The 6th Defendant went on to cite the provisions of Chapter 10, Section 2, Rule 100201 (ii) & (iii) and Rules 100203 of the Akwa Ibom State Public Service Rules thus:

 

“(ii)    Without prejudice to one’s constitutional rights, no officer shall seek redress in a court unless he has taken steps to exhaust all avenues provided in the relevant rules and circular.

 

(iii)     Where an officer decides to seek redress in the law Court, the officer should obtain permission from his employer and the permission should not be unreasonably withheld, or resign his appointment.”

 

Rule:  100203: An officer must not bring political or other outside influence to support his individual claims. If he is dissatisfied, his proper course is to make representations to his immediate superior officer or permanent Secretary/Head of Extra-Ministerial Department. If his representations are not successful, it is open to him to submit a formal petition or appeal to the appropriate authority under Rule 1001010.”

 

Based on the above provisions, the 6th Defendant submitted that the Claimants was required by the Akwa Ibom State Public Service Rules to exhaust all avenues provided in the relevant rules and circular and seek permission before the institution of this case and since this was not done the suit is incompetent. The 6th Defendant also submitted that the law is trite that the effect of non-service of a pre-action notice, where it is statutorily required is an irregularity which renders an action incompetent. For judicial support, the 6th Defendant relied on the dictum of Muhammad, J.S.C. in the case of Dominic E. Ntiero v. Nigerian Ports Authority (2008) ALL FWL (PT.430) 638 AT 703-704:

 

“It may be mentioned that the effect of non-service of a pre-action notice, where it is statutorily required, as in this case is only an irregularity which, however, renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence … If, therefore, a defendant refuses to waive it and he raises it, then the issue becomes a condition precedent which must be met before the Court could exercise its jurisdiction”.

 

The 6th Defendant referred the court to paragraphs 10, 11, 12 and 13 of the supporting Affidavit to show the use of external influence to pursue this action against Rule: 100203 the Akwa Ibom State Public Service Rules.

 

It further argued by the 6th Defendant it is trite that the Civil/Public Service Rules have Constitutional force and Public Servants or Officers, are duty bound to obey the rules as enunciated in the Court of Appeal case of Omowaiye v. A.G. Ekiti State & Anor (2010) LPELR 4779 (CA). Finally on the point, the 6th Defendant submitted that the failure of the Claimants to comply with the above Rules being a Civil/Public Officers, renders this suit inchoate indeed incompetent and should be dismissed.

 

SUBMISSION OF CLAIMANTS’ ON 1ST, 2ND AND 3RD DEFENDANTS’ OBJECTION

 

The Claimants in opposition to the 1st, 2nd and 3rd Defendants’ submission formulated one (1) issue for determination, to wit:

Whether this Honourable Court can hear and determine this preliminary objection in the circumstance of this case.

The Claimants submitted that it is trite law that the purpose of a preliminary objection is to terminate a suit as being incompetent referring to the cases of Wechie vs. Okwuworlu (2015) 11 NWLR (pt. 1469) pg. 95, Galadima vs. Tambai (2000) 11 NWLR (pt.677) pg. l.

 

On what determines the competence of a suit and the claim thereof, the Claimants referred to the cases of Amale vs. Sokoto Local Govt. (2012) 5 NWLR pg. 181, Sea Trucks (Nig) Ltd. vs. Pyne (1999) 6 NWLR (pt. 607) pg. 514, Egbuomu vs. Borno Radio & Television Corp. (1997) 12 NWLR (pt. 531) pg. 29 and Tukur vs. Govt Of Gongola State (1989) 4 NWLR (pt. 117) pg.517.

 

The Claimants gave a run-down of the reasons for the 1st, 2nd and 3rd Defendants objections and denied same and sought to explain away the allegations. In doing this, the Claimants relied on the unsigned minutes of 1st Claimant’s meeting dated 05/07/2018 (Exhibit ‘A’) most particularly page 9 the said minutes thus:

 

“Atter exhaustive deliberations on the matter, the house resolved as follows:

  1. i)That a strong worded letter reaffirming the position of Comrade Martins Effiong as the State President be sent to the State Deputy President and that she is still the Deputy to Comrade Martins,
  2. ii)That members of COSPON as a matter of expedience should assist Martins financially as a colleague so as to assuage his suffering in the interim.”

 

The Claimants also submitted that position of NEC above is consistent with the provision of Rule 3 (x) and (xi) of the NULGE Constitution that:

 

“(x)     Any member who is involuntarily transferred, suspended, dismissed, retired or otherwise victimized, in any way not expressly mentioned under this section shall retain the right of membership of the union, and the dues payable by such member shall be deemed to have been waived during the pending of the victimization.

 

  1. xi) If the member in (x) above holds office in the union, such victimization shall not affect in any way the holding of such office, or the performance of the duties of such office, and shall not be used as a ground for the members disqualification from re-contesting for that office on expiration, or any other office in the union.”

 

Thereafter, the Claimants came with their own allegations to the effect that the letters purportedly written by the Acting General Secretary of the 1st Claimant dated 25/09/2018 (Exhibit DEF1) and 08/11/2018 (Exhibit DEF2) were not written by him.

 

The Claimants also submitted that a preliminary objection on points of law challenging the validity of the institution of a suit can only be determined at the initial stage by reference to the pleadings placing reliance on the Supreme Court decision in the case of Elebanjo vs. Dawodu (2006) 15 NWLR (pt. 1001) pg. 76 @ 137, per Ogbuagu, JSC. It is however the submission of the Claimants that such point of law ceases to be a preliminary one strictly speaking if it cannot be determined without evidence being led as in the instant case. Reference is given of the cases of Emecheta vs. Oguevi (1996) 5 NWLR (pt. 447) pg. 227 @ 239, Elebanjo vs. Dawodu (supra).

 

Finally, the Claimant submitted that this suit is competent and properly before this court and urged the court to dismiss the preliminary objection for being incompetent, premature, frivolous, vexatious and an abuse of court process.

 

SUBMISSION OF CLAIMANTS ON 4TH AND 6TH DEFENDANTS’ OBJECTION

 

The Claimants identified the objections raised by the 4th and 6th Defendants as similar and decided to take them together.

Permission of employer to institute action

On this objection of the 4th and 6th Defendants, the Claimants submitted that the Public Service Rules do not apply in this instance, as the cause of action is borne out of an infraction of the constitution of the 1st Claimant and not the employment and/or condition of service of any public officer. It is the further submission of the Claimants that the Public Service Rules is a contract of employment between the employer and the employee and being a contract, the agreement or conditions of service stated therein is the document which regulate the relationship between the employer and the   employee and no any other. See the case of Union Bank of Nig. Ltd. vs. Edet (1993) 4 NWLR (pt. 287) 288.

 

The Claimant further reiterated that while the Public Service Rules govern the terms and conditions of service of public officers and not labour matters or disputes, the relationship between a member of a Trade Union and the Union is contractual and terms of the contract are to be found in the Union Constitution. The Claimants maintained that a member or members of the union have, in general, the right to take out proceedings to enforce compliance with the Union’s own rules in relation to election of officers and other internal regulations as in the Supreme Court decision in the case of Elufioye vs. Halilu (1993) 6 NWLR (pt. 301) 570.

The court is therefore urged to discountenance this contention.

Public Officers Protection Act

On this issue, the Claimants submitted that the defence created under Section 2 (a) of the Public Officers Protection Act or Law, as the case may be, is for Public officers who had acted pursuant to their duties as public officers. The Claimants however noted that for the defence to avail a Public Officer, two conditions must exist:

(i)               It must be established that the person against whom the action is commenced is a Public Officer; and

(ii)            The act done by the officer in respect of which the action was commenced must be an act done in pursuance or execution or intended execution of any law or of any public duty or authority.

See Ekeogu vs. Aliri (1990) 1 NWLR (pt. 126) 345, Garba vs. Shuaibu (2001) 8 NWLR (pt. 716) 730 and Sani vs. President, F.R.N (2010) 9 NWLR (pt. 1198) 153.

The Claimants also submitted that the 4th and 6th Defendants are not Public Officers within the meaning and contemplation of the Public Officers Protection Act or Law as to benefit from the protection of the law relying on the case of F.G.N. vs. Zebra Energy Ltd. (2002) 3 NWLR (pt. 754) 471 @ 499, per Musdapher, J.C.A. (as he then was).

REPLY OF 1ST, 2ND AND 3RD DEFENDANTS TO CLAIMANTS’ SUBMISSION

ON POINTS OF LAW

 

By way of reply on point of law, the 1st, 2nd and 3rd Defendants noted that the document the Claimants relied for its defence, the minutes of the National Executive Council of 5/7/2018 (Exhibit A) is unsigned and submitted that the document is void and worthless in law. Relying on the cases of Brewtech Nigeria Limited v. Folageshin Akinnawo (2016) LPELR – 40094 (CA), Garuba v. Kwara Investment Co. Ltd (2005) 5 NWLR (Pt. 917) 160 and Gbadamosi & Anor v. Biala (2014) LPELR 24389 (CA), the Claimants again submitted that it is trite that an unsigned document is entitled to no weight and therefore cannot generate or initiate an action and cannot have effect before a court of law and is incapable of being used to resolve facts that are disputed in an action between the parties. See also Tsalisawa v. Habiba (1991) 2 NWLR (Pt. 174) 463.

 

REPLY OF 4TH DEFENDANTS TO CLAIMANTS’ SUBMISSION ON POINTS OF LAW

 

The 4th Defendant noted that Claimants have not filed any counter affidavit to challenge the facts averred in the 4th Defendant’s affidavit in support of the preliminary objection and submitted that the unchallenged facts remained uncontroverted and therefore deemed admitted and established. For this proposition of the law, the 4th Defendant relied on cases of Damusa Ahmodu & Anor v. Fatima Yunusa (2010) LPELR-8601 C.A.; Miss Ifeyinw A Ogoejeofo v. Daniel Chiejina Ogojeofo (2006) LPELR- 2308 S.C., (2006) 3NWLR (PT.966) 205; Nigeria Police & Ors v. MRS. Ljeoma Onu & Ors (2007) LPELR-8608 C.A; B.E. Orisakwe & Sons Ltd & Anor v. Afribank Plc (2012) LPELR -2009 C.A. and Rakol Clinic And Maternity Hospital v. Supreme Finance And Investment Co. Ltd (1999) 7 NWLR (Pt. 612), 613.

 

DECISION OF THE COURT

 

I have examined the Originating Summons and the affidavit in support and counter affidavits and the arguments of all the parties for and against the Preliminary Objections and it is my considered view the issue for determination is:

 

“Whether the Applicants have proved the objections to guarantee the success of the Preliminary Objections in this case.” 

 

It should be noted that there are three (3) Preliminary Objections filed by the 1st to 3rd Defendants, 4th Defendant and 6th Defendant in this case. I will consider the objections together and will ensure that each ground of objection or reason is considered but not in specific order or traced to a specific objector.

 

In the determination of Notice of Preliminary Objection, there are some notable principles to be reckon with. Firstly, the essence of a preliminary objection is to terminate at infancy, or as it were, to nip it at bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter. See the cases of Yaro v. Arewa Construction Ltd. & Ors. (2007) 6 S.C.N.J. 418 and Efet v. INEC (2011) 1 S.C.N.J. 194. Secondly, a preliminary objection is raised where a party fails to comply with the enabling law and or the rules of court and the proper stage to raise it is at the inception or early stage of the proceedings. See the cases of Carlen (Nig) Limited v. University of Jos (1994) 1 N.W.L.R. (pt. 323) 631 and Sani v. Okene (2008) 5 S.C.N.J. 252. Thirdly, it is firmly settled that a party to a suit can raise a point of law on a preliminary objection if the point of law will be decisive of the whole litigation. See the cases of Ntuks v. N.P.A. (2007) 5 S.C.N.J. 120 and Oketade v. Adewunmi (2010) 41 (Pt.2) N.S.C.Q.R. 1273. Fourthly, a party ought not to be precluded from putting across his case in a full hearing except on the clearest indication that the action is denuded of all merits even on the supposition that the averments in the statement of claim are deemed admitted by a defendant. This is the case of Chevron v. Lonestar (2007) 7 S.C.N.J. 257.

 

Having given a judicial framework of the concept of Preliminary Objection, it is now time to take the reasons or factors advanced by the Defendants/Applicants as grounds for the objections so as to determine if the factors therein can avail the Defendants/Applicants under the circumstances.

 

The first port of call is the objection on fraudulent misrepresentation by the 1st, 2nd and 3rd Defendants. The Applicants alleged that the 2nd to 5th Claimants did not get the consent of the 1st Claimant to institute this action particularly against the disclaimer issued by the 1st Claimant. Apart from the fact that this is a direct challenge to the basis of the suit itself, the Claimants/Respondents also came with allegation of their own to say that the disclaimer itself is a forgery. Without much ado I want to believe misrepresentation here is an issue of fact which cannot be reconciled without calling further evidence which the special procedure of Preliminary Objection is not suited for. This irreconcilable conflict even calls to question the commencement of this suit by originating summons. It is therefore my finding and holding that this objection is of no moment and is discountenanced for the purpose of this application.

 

Next is the issue of locus standi. Locus Standi denotes the legal capacity based upon sufficient interest in a subject matter to enable an aggrieved person institute proceedings in a court of law. The question here is are the Claimants clothed with the locus to institute this action as presently constituted? To answer this recourse had to be made to the Originating Summons and the affidavit in support of the Claimants alone as that is the only process the court should give attention to at this stage. See Owodunni v. Registered Trustees (2000) 6 S.C.N.J. 436 and Disu v. Ajilowura (2006) 7 S.C.N.J 156. To have locus standi the plaintiff’s statement of claim (in this case the Originating Summons and the affidavit in support) must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action. See the cases of Pacers v. Dancing Sister (2012) 1 S.C.N.J. 17-18, A-G. Lagos v. Eko Hotel (2006) 9 S.C.N.J 154 and Ibadan S.E. v. Adeleke (2007) 1 S.C.N.J 69. Not only that, the Supreme Court in a number of cases particularly A-G Kaduna State v. Hassan (1985) 2 N.W.L.R. (pt. 8) 483 and Taiwo v. Adegboro (2011) 5 S.C.N.J. 138, had advanced two (2) tests in determining locus standi of a person thus: 1. The action must be justiciable. 2. There must be a dispute between the parties.

Now, does the Originating Summons and the affidavit in support in this case disclose any dispute between the parties? I think the answer is yes. On a careful perusal of the reliefs sought by the Claimants and the affidavit in support, I cannot but come to the conclusion that there exist a dispute between the parties in this case. The bone of contention is the disputed positions in 1st Claimant and the attendant control of check-of dues and other incidentals thereof. So long as the Claimants are laying claims to being members of the 1st Claimants and to the converted positions therein, I think they have sufficient interest to institute this action. I so hold. After all, the law is settled that the issue of locus standi does not depend on the success of the merits of the case, but on whether the plaintiff has or the plaintiffs have sufficient interest or legal right in the subject-matter of the dispute. See the case of Ojukwu v. Ojukwu (2008) 12 S.C.N.J. (pt. 11) 614. I am also fortified in so holding by the wisdom of I. C. Pats-Acholonu, J.S.C. in the case of Ladejobi v. Oguntayo (2004) 7 S.C.N.J. 319-320, thus:    

“I believe that where the court conceived that a proponent of a matter is somehow connected to a dispute in which he feels that he should exercise his right of access to the Court to protect his own interest or indeed group interest, he should not be shut out as long as it can be discerned from the pleadings that he had a protectable interest of some sorts. I view with fear and apprehension any attempt by the court to shut off someone who can show he is affected by the dispute and decides to seek for a remedy and the court with a wave of a hand gives a decision barring him from ready access to the courts on the ground that he has not disclosed sufficient interest to show his connection or what he stands to lose. It is desirable and in fact essential that a party should be given as much latitude as possible the opportunity to canvass his case where the court would then sieve the wheat from the chaff. Let it not be said that plaintiff is chased out peremptorily from the temple of justice because the court does not feel strongly satisfied that he has shown a strong connection and interest in the matter.”

 

Closely connected with the issue of locus standi is the objection regarding lack of cause of action against the 1st, 2nd and 3rd Defendants. The question of locus standi is most of the times merged in the issue of cause of action. See the case of Owodunni v. Registered Trustees (2000) 6 S.C.N.J. 417. I have refrained myself from a detailed consideration of the averments which guaranteed the Claimants in this case a reasonable cause of action so as not to go into the merit of the case. Suffices to state for the reasons given that the Claimants have locus to institute this action, the pleadings of the Claimants have also disclosed some questions fit to be heard and decided. The Originating summons in this case cannot be rightly said to disclose no reasonable cause of action. I so find and hold. See the cases of A.G (Federation) v. A.Gs (all the states) (2001) 7 S.C.N.J. 32 and Mobil v. L.S.E.P.A. (2002) 12 S.C.N.J. 25.

 

The next objection is the one by the 4th and the 6th Defendants to the effect that the suit is in violation of the provisions of sections 2 (ii) and (iii) of the Akwa Ibom State Public Service Rules and therefore inchoate and incompetent. The argument here is that since the 2nd to 5th Claimants are public officers, they should exhausted all avenues and obtain permission before instituting this action. The provisions of the said Public Service Rules are not in doubt. All the cases law regarding the pre-action notice and condition precedent for the commencement of suit are also not in doubt. What is however in doubt is the applicability of the provisions to the facts of this case. I have read the pertinent process in this suit and cannot find any averment which bring this case in the realm of ordinary employer and employee relationship in the strict sense of it. I am therefore in total agreement with the submission of the Claimants that the cause of action is borne out of an infraction of the constitution of the 1st Claimant and not the employment conditions of any public officer. The case of Elufioye vs. Halilu (1993) 6 NWLR (pt. 301) 570 cited by the Claimants is also instructive.

 

There is also the objection that this suit is incompetent for being filed outside the mandatory three (3) months as stipulated by section 2 (a) of the Public Officers Protection Act. Assuming but not conceding that the suit involves a contract of employment or any contract of service, the Public Officers Protection Act is inapplicable to the case at hand given the current position of the law. In the very recent case of National Revenue Mobilization Allocation and Fiscal Commission & Ors v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 247 at 271, the Supreme Court in a unanimous decision laid to rest the application of the Public Officers (Protection) Act on contract of employment per Olukayode Ariwoola, J.S.C and Kumai Bayang Aka’ahs, J.S.C. @ page 279.

 

Last but not the least, is the submission of 4th Defendant on the failure of the Claimants to file a counter affidavit against the averments in its affidavit in support of Notice of Preliminary Objection, the effect of which rendered all the averments as admitted and established. I must say this is a total misconception of the special procedure of Preliminary Objection. To start with the affidavit in support is not necessary for the determination of the 4th Defendants application. All that is required for that purpose is the Originating Summons and affidavit of the Claimants. Second, in a preliminary objection the applicant deals with law and the ground is that the court process has not complied with the enabling law or rules of Court and therefore the issue of affidavit is not of upmost necessity. See the case of Abba v. Shell Petroleum (2013) 4 S.C.N.J. 103.

 

I have therefore no hesitation in finding and holding that the three (3) Preliminary Objections have no merit and are hereby dismissed.

 

 

Ruling is entered accordingly.

 

 

 

………………………………………

HON. JUSTICE M. A. NAMTARI

 

 

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