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OBED OMAH VS GABRIEL NWANETANYA & 3ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 4TH MARCH, 2019                          

SUIT NO: NICN/PHC/81/2018

BETWEEN:

OBED OMAH

CLAIMANT

AND

 

  1. GABRIEL NWANETANYA
  2. ONIMIM WOKOMA

(for themselves and on behalf of the Screening

and Credential Committee of the Nigeria Union

of Journalists, Rivers State Council)

  1. GBEMIGA BAMIDELE

(Assistant National Secretary, Nigeria Union

of Journalists)

  1. NIGERIA UNION OF JOURNALISTS

 

DEFENDANTS

REPRESENTATION:

 

Dr. C. N. Nwankwo for the Claimant

Elder David O. Abuo with J. E. Apreala and Nkechi O. Uduma for the Defendants

 

JUDGMENT

By an Amended Originating Summons dated and filed on 20th December, 2018, the Claimant commenced this suit against the Defendants, and submitted these two questions for the determination of the court:

  1. Whether having regard to the provisions of ARTICLE 6 (7) (a)(b) of the Constitution of the Nigeria Union of Journalists, (NUJ) the claimant is eligible to contest for the Office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ).

 

  1. Whether the disqualification and exclusion of the claimant from contesting for the office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ) is not arbitrary, unconstitutional, void and of no effect whatsoever.

The Claimant therefore claims the following reliefs against the Defendants:

  1. A declaration that the claimant is eligible to contest for the office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ) having fulfilled/satisfied all the requirements/conditions set out by ARTICLE 6 (7) (a) (b) of the Constitution of the Nigeria Union of Journalists (NUJ).

 

  1. A declaration that the disqualification/exclusion of the claimant from contesting for the Office of state Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ) at the elections to State offices of the Union at Port Harcourt by the Defendants is arbitrary, unlawful, unconstitutional and void.

 

  1. A declaration that the claimant is a contestant at the said election.

 

  1. An order setting aside the purported disqualification of the Claimant as a contestant in the election to the Office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ).

 

  1. An order setting aside any purported election to the Office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ) whilst the claimant was unjustly and unlawfully excluded.

 

  1. An order restraining the Defendants from excluding or whatsoever interfering with the Claimants(sic) vested right to participate as a contestant in the election to the office of the chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ).

 

In support of the Amended Originating Summons is an affidavit of 29 paragraphs deposed to by the Claimant. Annexed to the Affidavit are five (5) documents marked as exhibits A, B, C, D and E.

In compliance with the Rules of Court, the Claimant filed along with the Originating Summons a Written Address wherein this sole issue is submitted for the determination of the court:

Whether from the facts and circumstances of this case, the claimant is entitled to a resolution of the questions for determination in his favour and a grant of the reliefs sought.

In opposition to the Originating Summons, the Defendants filed 8 paragraphs Counter-Affidavit deposed to by Ike Wigodo (the Secretary of the Nigeria Union of Journalists, NUJ Rivers State Council) on 16th January, 2019. In compliance with the Rules of Court, the Defendants accompanied the Counter-Affidavit with a Written Address.

It is pertinent to note that at the hearing of this suit on the 21st of January, 2019, the learned Claimant’s counsel Dr. C. N. Nwankwo also adopted and relied on the Claimant’s Further and Better Affidavit of 7 paragraphs deposed to by the Claimant on 15th of November, 2018. Annexed to the Further and Better Affidavit are nine (9) documents marked as Exhibits FB1, FB2, FB3, FB4, FB5, FB6, FB7, FB8 and FB9. Filed along with the Further and Better Affidavit is a Reply on Points of Law which was equally filed on the 15th of November, 2018.

CLAIMANT’S CASE.

It is the case of the Claimant that he has been working with Radio Rivers in Port Harcourt since 1999, and is presently the Assistant Director Current Affairs Department of the radio station. He is a qualified journalist and a member of the Nigeria Union of Journalists (NUJ) who had served as a Secretary of the Radio Rivers Chapel of the Union between 2006 to 2009, and as Chairman of the Chapel between 2011 to 2014.

According to the Claimant, when the Union lifted ban on election to fill the executive positions of the Rivers State Council sometime in April, 2018, an Electoral Body was set up to ascertain the eligibility of members to fill the positions. That he presented himself to contest for the Office of the Chairman of the Port Harcourt Branch of the Union, having fulfilled the requirements and qualified for the post in line with Article 6 of the NUJ Constitution. That he was cleared to contest, and the list of eligible candidates including himself was published and pasted on the Notice Board of the Union’s State Secretariat.

The Claimant further states that, after his clearance on the 9th of July, 2018, another list of contestants was published on 10th July, 2018 wherein his name was omitted for the election scheduled to hold on 12th of July, 2018.  That despite his efforts to ascertain from the Defendants the reason for the omission of his name, no reason has been given to him.

That he was neither invited nor confronted with any reason for his disqualification and he has never breached any provision of the Union’s Constitution.

That his disqualification has caused him embarrassment, and the defendants’ action of excluding his name amounts to an infringement of his right and a breach of the NUJ Constitution; hence the court should grant the prayers in the Originating Summons.

DEFENDANTS’ CASE

The Defendants’ case on the other hand is that, the 1st Defendant who was never served with any process in this suit is known by the name Gabriel Nwanetanya and not Gabriel Nwa. That there is no officer in the Port Harcourt Secretariat of the NUJ known as Onimim Wokoma and no such person was served with any process in this suit. That the same applies to the 3rd Defendant who was equally not served with the court process in this suit.

That the persons presenting themselves as Claimant in this suit (ObedOmah, Obed Omah, Obed Oma and Omah Obed A.) are not known to the Defendants to have presented themselves to contest election for the post of Chairman of NUJ Rivers State Council, Port Harcourt.

That no published list of cleared contestants is brought before the court by the Claimant and non of the purported disqualification by any of the Defendants is tantamount to the violation of any right of the Claimant or a breach of the NUJ Constitution, and the instant suit is therefore not necessary.

CLAIMANT’S SUBMISSIONS.

The Claimant distilled one Issue for the court’s determination, to wit: Whether from the facts and circumstances of this case, the claimant is entitled to a resolution of the questions for determination in his favour and a grant of the reliefs sought.

While arguing this lone issue, it is submitted that Originating Summons procedure is adopted where the suit calls for the interpretation of statutes and documents, referring to Pam V. Mohammed (2008) 5 SCNJ 286 and Din. V. A.G. Federation (1986) 1 NWLR (Pt. 17) 471 at 485-486.

That the instant suit relates to the determination of the Claimant’s rights as a member of the 4th Defendant, hence it should be considered by the court. See Elufioye V. Halilu (1990) LPELR 20126(CA).

The learned counsel to the Claimant reproduced the provisions of Article 6(7)(a)(b) of the 4th Defendant’s Constitution and submits that, a contestant for an office in a State Council (branch) of the NUJ must meet these conditions: be in active service for seven years; be in good financial standing with the Union, and been an officer in a Chapel of the Union.

That since the defendants did not indicate which of the conditions enumerated above was not met by the Claimant; the Claimant fulfilled all the requirements and should not have been disqualified.

That the Claimant has discharged the onus of proof placed on him referring to exhibit ‘A’ annexed to the Originating Summons, and the case of Oredola Okeya V. B.C.C.I. (2014) NSCQR (Pt.1) 230 at 254-255, as well as paragraphs 4-10 of the supporting affidavit.

That since the Constitution of the 4th Defendant is a contract between the 4th defendant and its members, and between the members, the court should resolve the sole issue in favour of the Claimant, and grant the reliefs sought by the Claimant in this suit.

 

The learned Claimant’s counsel also placed reliance on the Further and Better Affidavit of 7 paragraphs deposed to by the Claimant on 15th November, 2018, as well as the annexed documents. In the Written Reply filed along with the Further and Better Affidavit, it is argued that the Defendants’ counter affidavit is defective because it contains legal arguments and conclusions, and the deponent did not disclose the source of his information contrary to the provisions of section 115 of the Evidence Act.

On the issue of service, it is submitted that, apart from personal service that was effected, it is also proper service to serve the defendants in their place of business or in their union office. That since the court bailiff has deposed to an affidavit of service, same is conclusive proof of service,  referring to J & J Technology (Nig) Ltd V. Y.H.C.S. Ltd (2015) 8 NWLR (Pt. 1460)1 at 10 and Estate of Late Chief H. I. S. Idisi V. Ecodril (Nig) Ltd (2016) 12 NWLR (Pt. 1527) SC (Incorrect citation).

That the name Obed Omah, ObedOmah is the same and one person which can be regarded as a misnomer that can be amended by an application. See Maersk Line V. Adide Investment Ltd (2002) 11 NWLR (Pt. 778) 317.

DEFENDANTS’ SUBMISSIONS

The Defendants submitted one (1) issue for the determination of the court, to wit: Whether apart from the gross incompetence of the suit which we have addressed my lord on, whether the Claimant has shown by his affidavit evidence that his right to contest election as the chairman of the Nigeria Union of Journalists has been infringed upon by any and or all of the Defendants to entitle the consideration of the questions posed in his favour and the consequential grant of any or all of the reliefs in his favour.

It is submitted on this lone Issue that, the Claimant who referred to himself differently as Obedomah, Obed Omah, Obed Omar, Obed Oma and Omah Obed A. did not produce before the court a baptismal certificate or any document to show change of name, and the claim ought to be dismissed in the circumstance since the claimant has not proved that he is one and the same person.

 

It is further argued that, the claimant has also failed to show the court the lists of the persons that were cleared/screened to contest the said election, and these are the documents that will assist the court in the determination of this suit. That since there is nothing before the court to even show that the claimant collected a form or expression of interest to contest the election, the absence of these documents makes the suit speculative and liable to fail.

That since declaratory reliefs are not granted for the asking, the claimant must establish the material facts alleged by him, and since the claimant has failed to provide material facts to establish his case before the court, the court should refuse the reliefs being sought by the claimant.

It is pertinent to note that at the hearing of this suit on the 21st of January, 2019, the Originating Summons, the Claimant’s Application to set aside the election conducted by the defendants on 12th July, 2018, as well as the Defendants’ Notice of Preliminary Objection were all argued together in line with the provisions of Order 18 Rule 2 of the Rules of Court, 2017.

The Claimant filed a Motion on Notice on 18th July, 2018 seeking the following reliefs from the court:

  1. An order nullifying the election conducted by the defendants on 12/7/2018 during the pendency of this suit.

 

  1. And for such order or further order(s) as this Honourable Court may deem fit to make in the circumstances.

The Grounds for the application are as follows:

  1. Suit No.: NICN/PHC/81/2018 was filed prior to the election conducted on 12/7/2018.

 

  1. The defendants were duly served the originating processes of this suit prior to the said election.

 

  1. The defendants were fully aware that the suit challenged the conduct of the said election.

 

  1. The action of the defendants was calculated to foist to the court a situation of helplessness.

In support of the application is an affidavit of 16 paragraphs deposed to by the Claimant on 18th of July, 2018. Annexed to the Application is one (1) document marked as exhibit ‘A’. In compliance with the Rules of Court, the learned Claimant’s counsel filed along with the application a Written Address wherein one (1) issue is distilled for the determination of the court, to wit: Whether the applicant have(sic) shown good and sufficient reason to warrant the grant of this application.

Arguing this lone issue, learned Claimant’s counsel submits that, once an issue has been submitted to the court for determination, parties are to await the outcome of the case and not to resort to self help in dealing with the subject matter in issue, referring to Anyaoha V. Obioha (2014) 5 NWLR (Pt. 1404) 445 at 456.

That where a defendant is aware of the pendency of a suit by a plaintiff against him, the defendant is expected to maintain status quo pending the determination of the suit having been put on notice of the pendency of the suit.. See Ebebi V. Speaker Bayelsa State House of Assembly (2012) 5 NWLR (Pt. 1293) 1 at 47, A.G. Anambra State V. Okafor (1992) 2 NWLR (Pt. 224) 396, NDIC V. S.B.W. Plc (2003) 1 NWLR (Pt. 801) 311 and Bass & Matt Ent Nig Ltd V. Keystone Bank (2015) 1 NWLR (Pt. 1441) 609.

That since in the instant case the defendants were served the originating processes prior to the conduct of the election and they went ahead to conduct the election on 12th July, 2018, their conduct is an affront on the court, and the court should therefore set aside or nullify the said election.

In opposition to the Application, the Defendants filed a Counter-Affidavit of 3 paragraphs deposed to by Ike Wigodo (the Secretary of the Nigeria Union of Journalists NUJ Rivers State Council) on the 17th of January, 2019 but deemed as properly filed and served on 21st January, 2019.

 

Filed along with the Counter-Affidavit is a Written Address wherein learned counsel to the Defendants submitted one issue for the determination of the court, to wit: Whether apart from the proven incompetence of the motion and affidavits of the claimant/applicant, applicant has supplied all the material required upon which my lord can depend to exercise his discretion in this(sic) favour.

It is submitted that, the court lacks the jurisdiction to entertain this application at this stage of the proceedings because granting the application at the interlocutory stage will involve the consideration of the substantive suit.

According to the learned counsel to the Defendants, while the Claimant in the instant suit is Obed Omah, two different individuals have deposed to different affidavits in the suit because the signature on the supporting affidavit to the Originating Summons is different from the signature in the instant application under consideration. That the affidavit is therefore incompetent because it bears different names of deponents (Obed Omah, Obed Omar and Obed Oma).

That paragraphs 8, 9, 10, 12 and 16 of the affidavit in support of this application under consideration offends section 115(1), (2), (3) and (4) of the Evidence Act, 2011 because they do not relate to issues of facts but constitute legal arguments, legal conclusions and prayers. That the affidavit is also based on the 1963 Oaths Act as against the Laws of the Federation of Nigeria, 2014.

That the Claimant has not shown the court any act of self-help on the part of the Defendants such as the conduct of the election itself as no result of any election is produced before the court. The court is therefore urged to dismiss the application for want of merit.

It is instructive to note that the Defendants filed a Notice of Preliminary Objection dated 20th August, 2018 and filed on 24th August, 2018, praying the court to dismiss the suit in limine for being incompetent on the following grounds:

  1. The character(s), name(s) and person(s) of the claimant(s) is/are hazy, as it is not clear whether the claimant(s) is/are Obed Omah, and/or Obed Oma, and/or Omah, Obed A. and/or ObedOmah, and/or even Obed Omar.

 

  1. All the persons in ground (i) above cannot crystallize or roll into one person the claimant/applicant/respondent in the name and style of Obed Omah to have the competence and locus standi to institute the instant action on behalf of all the said persons, the suit not having been commenced in a representative capacity.

 

  1. The Originating Summons is not signed by the Registrar.

 

  1. The 4th Defendant is not a juristic person that can sue and be sued eo nomine (i.e. in the name it is sued).

 

  1. The suit is grossly incompetent and no form of amendment can save the same from the ill-fated collapse.

 

  1. There is no competent affidavit before the Honourable Court on which to act in favour of the Claimant(s).

In support of the Notice of Preliminary Objection is a Written Address wherein these two issues were identified for the court’s determination:

  1. Whether given the myriad of persons posing as the Claimant in the instant suit, there is a precisely competently (sic) institute and maintain the instant suit.

 

  1. Whether the 4th Defendant/Applicant is a legal or juristic person that can sue and or be sued eo nomine (in the name herein sued).

It is argued on issue one (1) that, while the Claimant in the Originating Summons is one Obed Omah, the document dated 29th April, 2010 referred to one Obed Oma, the document of 24th March, 2009 referred to one Omah, Obed A. and by the affidavit sworn on 11th July, 2018 the deponent is one ObedOmah in the beginning and one Obed Omah in paragraph 29 of the said affidavit. That by section 119(4) of the Evidence Act, where two or more persons join in making an affidavit, their several names shall be written in the jurat that each of them has been sworn to the truth of the matters stated in the affidavit, and since the Claimant failed to do so, the affidavit is incompetent and the court should discountenance same. See CBN. V. Ahmed (2013) 11 NWLR (Pt. 1365) 352 at 368-370 Paras H-B.

That since the claimant in this suit is referred to as Obed Omah, ObedOmah, Obed Oma and Obed Omar, there is no competent claimant before the court, hence the suit itself is incompetent and should be dismissed by the court.

On issue two (2) it is submitted that while the organization referred in the 4th Defendant’s Constitution is the Nigeria Union of Journalists (NUJ), the Claimant has sued the Nigerian Union of Journalist which is not a juristic personality.

That the claimant who alleged to have occupied senior executive offices in the Radio Rivers Chapel of the Union ought to know the correct name of the Union. The court is therefore urged to strike out the name of the 4th Defendant from the suit for not being a legal entity or juristic person.

The court is finally urged to uphold the Objection and dismiss the suit for being incompetent.

In response to the Notice of Preliminary Objection, the Claimant filed a Reply dated and filed on 15th November, 2018.

In response to the Defendants’ Issue one (1) argued in the Written Address in support of the Notice of Preliminary Objection, it is argued that, in order to determine the parties to a suit, it is only the originating processes that should be considered or looked at. That from the originating process before the court, there is only one claimant by the name Obed Omah, and there is no any Obed Oma, ObedOmah or any other person as argued by the Defendants.

According to the Claimant, the defendants’ argument goes only to the admissibility of the documents allegedly bearing names different from that of the Claimant which is by implication an issue of technicality, and courts are to do substantial justice in matters presented for adjudication. See Oloruntoba-Oju V. Abdul-raheem (2009)13 NWLR (Pt. 1157)83; Abubakar V. Yaradua (2008) 4 NWLR (Pt. 1078) 465; Akan V. BOB (2010) 17 NWLR (Pt. 223) 421 and Order 5 Rule 6(3) of the Rules of Court 2017.

That there is nothing before the court to show that two or more persons deposed to the affidavit because Obed Omah and Obedomah is the same person/name. It is further argued that, section 119(4) of the Evidence Act relating to jurat does not apply to this case because there is nothing in the affidavit supporting the originating summons to show that the claimant is either blind or an illiterate to necessitate a jurat.

With regard to issue two (2) of the written address in support of the Notice of Preliminary Objection, it is submitted in response that the court has the power to correct a name not correctly spelt upon an application in that regard. See Order 13 Rule 5 of the Rules of Court 2017.

That even though the 4th Defendant’s name was wrongly spelt, an application to correct the name had been filed before the court, and the court should do substantial justice by considering the application for correction of the defect. See Makinde V. Orion Engr Service Ltd (2014) 11 NWLR (Pt. 1471) 1 and Order 5 Rule 6(3) of the Rules of Court.

That the wrong spelling of the name of the 4th Defendant is a misnomer which can be corrected upon an application to the court. See J. & J. Techno Ltd V. Y.H.Q.S. Ltd (2015) 8 NWLR (Pt. 1460) 1 at 6 and Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669.

On the Defendants’ submission that the Originating Summons was not signed by the court’s registrar, it is the Claimant’s response that, that is the registrar’s fault as a party filing a suit in court after paying the assessed fees has no duty to endorse the signature of the Registrar because that is the responsibility of the court registry. And the party cannot be punished for the tardiness and neglect of the court officials. See C.B.N. V. S.C.S.B. (No.2) (2015) 11 NWLR (Pt. 1469) 1, and SBM Services (Nig) Ltd V. Okon (2004) 9 NWLR (Pt. 878) 529.

That the Claimant duly paid for the processes thereby performing his own responsibility. It is therefore not proper to visit the neglect of the court officials in failing to endorse the processes on the Claimant, referring to the case of Ede V. Mba (2011) 18 NWLR (Pt. 1278) 236.

The court is therefore urged to refuse the Notice of Preliminary Objection.

COURT’S DECISION

In view of the fact that, the substantive suit was argued together with both the Claimant’s Application to set aside the election conducted by the Defendants as well as the Defendants’ Notice of Preliminary Objection, I shall determine the Notice of Preliminary Objection first since it challenges the jurisdiction of the court, and then consider the Claimant’s Application before considering the substantive suit.

The first ground of the Defendants’ Objection is with respect to the personality of the Claimant. According to the defendants, since the claimant is referred differently as Obed Omah, Obed Oma, Omah Obed A., ObedOmah and Obed Omar, the persons cannot be one and the same. It is therefore argued in Issue one (1) that the suit is incompetent and should be dismissed.

Having looked at the Amended Originating Summons, it is clear that the identity of the Claimant is not in dispute. The Claimant in this suit clearly identified himself on the face of the originating processes as Obed Omah. I do not think that the defendants are in the dark as to the identity of the Claimant who has brought them to court.

From the claimant’s processes filed before the court, the identity of the claimant has been clearly stated. I so find and hold.

The era of technicalities in the determination of cases are gone for good. Courts are now to do substantial justice in terms of the real issues in controversy as disclosed before the court. See the case of Hon. Prof. Chudi Uwazuruike V. Chief Austin Nwachukwu and Others (2012) LPELR-15353(CA), where the appellate court held thus: “Today, the attitude of the court is to lean towards doing substantial justice without undue regard to technicality more especially where reliance on technicalities may lead to injustice. One basic principle of law is the object of the court to decide the rights of the parties and not to punish them for mistakes they make in the litigation process. The judiciary malfunctions and is discredited when it is bogged down by technicalities, so the preferred option is to do substantial justice. See Bossa V. Julius Berger Plc. (2005) 15 NWLR (Pt. 948) 409; NNDC V. Preasion Associates Ltd. (2006) 16 NWLR (Pt. 1006) 527; Inajoku V. Adeleke (2007) 4 NWLR (Pt. 1025) 423.”

In the circumstance, Issue one (1) is hereby resolved against the Defendants/Applicants.

The second Issue formulated by the Defendants/Applicants relate to the juristic personality of the 4th defendant. That while Article 1 of the 4th Defendant’s Constitution refers to Nigeria Union of Journalists (NUJ), the party sued is referred to as the Nigerian Union of Journalists.

May I state that since at the hearing of this suit on the 21st of January, 2019, the learned counsel to the Defendants applied to the court to withdraw the arguments in paragraphs 2.5 to 2.7 of the Written Address in support of the Notice of Preliminary Objection which relate to the juristic personality of the 4th Defendant, the said argument are deemed abandoned and hereby struck out.

In any case, the amended Originating Summons filed on the 20th of December, 2018 has cured whatever defect(s) in the 4th Defendant’s name.

Having struck out the arguments in respect of Issue two, it will therefore be an academic exercise to consider the said issue.

In the final result, the Notice of Preliminary Objection fails and is hereby dismissed.

I shall now consider the Claimant’s application to set aside or nullify the election conducted by the defendants on 12th July, 2018.

The main grouse of the Claimant is that since the instant suit had been filed and the defendants fully aware of the suit, they should have awaited the outcome of same.

That the defendants’ attitude by going ahead to conduct the election despite being aware of the pendency of the suit amounts to self help aimed at foisting on the court a situation of helplessness.

I have looked at all the processes filed in respect of this application, including the defendants’ processes and it would seem that the main ground of the defendants’ opposition to the application is that since the issues in the application are the same as those in the substantive suit, the court should avoid delving into them at the interlocutory stage.

I have compared the sole relief in this application with the reliefs being sought in the substantive suit, and it is discovered that the said relief is one of the reliefs in the substantive suit. While the sole relief in this application is for ‘an order nullifying the election conducted by the defendants on 12/7/2018 during the pendency of this suit’, relief 5 of the Amended Originating Summons is for ‘an order setting aside any purported election to the office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ) whilst the claimant was unjustly and unlawfully excluded.’

While I agree with the learned Claimant’s counsel that once a court of law is seised of a matter, parties are to allow the legal process run its full course and not to do anything whatsoever aimed at foisting on the court a fait accompli or situation of helplessness, I do not think the issues in the application can be decided at this interlocutory stage without delving into the substantive matter. See Prince Abdul Rasheed A. Adetono and Another V. Zenith International Bank Plc (2011) LPELR-8237(SC), and Mobil Oil Nigeria Plc and Others V. Kena Energy International Limited (2000) LPELR-5863(CA).

In the circumstance, this application is refused and same is hereby dismissed.

Having resolved both the Notice of Preliminary Objection and the Claimant’s Application, I shall now consider the substantive suit before the court.

Having looked at the Issues formulated by the parties, I shall adopt the sole Issue identified by the Claimant for determination, to wit: Whether from the facts and circumstances of this case, the claimant is entitled to a resolution of the Questions for determination in his favour and a grant of the reliefs sought.

The case of the Claimant is simply that, he vied for the position of the Chairman of the 4th Defendant’s Rivers State Council, and after fulfilling the conditions/requirements as provided in Article 6 (7) (a) and (b) of the 4th Defendant’s Constitution, he was screened/cleared to contest the election.

That on the 9th of July, 2018, a list of eligible contestants which contained his name was released and published/pasted on the Notice Board of the 4th Defendant’s Rivers State Secretariat but suddenly another list of contestants was published/released on the 10th of July, 2018, wherein his name was omitted for the election scheduled for 12th of July, 2018.

For the purpose of clarity, may I reproduce paragraphs 12, 13, 16, 17, 18, 19, 20 and 21of the affidavit in support of the Amended Originating Summons.

“12. That I have satisfied the above conditions as contained in NUJ Constitution and presented myself to the defendants to contest for the office of the Chairman of the Port Harcourt branch of the Nigeria Union of Journalist.”

“13. That I had early (sic) presented myself to the defendant having fulfilled the requirements to contest for the post of the chairman of NUJ Rivers State Council and was rightly cleared to contest and the list of the eligible contestants including me was published and pasted in the Notice Board of our State Secretariat.”

“16. That to my surprise, after having early (sic) cleared by the defendants on 9/7/2018, another list of contestants was published on 10/7/2018 and my name was wrongly omitted while the election was scheduled to hold on 12/7/2018.”

“17. That consequent upon (16) above I have made several calls to the defendants to ascertain the reason of the omission of my name in the said list published on 9/7/2018, but till now, no reason whatsoever has been given in this regard.”

“18 That after the publication of the names wherein my name was omitted, my supporters and well-wishers has (sic) been calling me to know the reason of my disqualification but there has never been any clear picture to that effect.”

“19 That I have not been invited or confronted with the reason of my sudden disqualification.”

“20. That I am a law abiding citizen and a bonafide member of the Nigeria Union of Journalist Rivers State Council chapter and has never been found wanting in our union activities.”

“21. That I have not breached any section of our constitution.”

Since the contention of the claimant is that he fulfilled the requirements of Article 6(7) of the 4th Defendant’s Constitution (exhibit C), may I also reproduce the said provision for clarity.

“6 (7)(a) only those who have been actively involved in the practice of journalism for a period of five years and are in good financial standing in the Union shall be eligible to contest for the offices in the Chapel.

(b) For the State Council offices, such candidates must have been in active service for seven years, and be in good financial standing and must have been officers in a Chapel.” 

Having looked at the processes in this suit (including the exhibits), it is obvious that the Claimant’s membership of the 4th Defendant is not in doubt. The facts relating to the Claimant’s membership of the 4th Defendant were clearly set out in paragraphs 4, 5, 6, 14 and 15 of the affidavit in support of the Amended Originating Summons. While exhibit ‘B’ annexed to the Originating Summons is a copy of the claimant’s ID Card issued by the 4th Defendant, Exhibits ‘D’ and ‘E’ are letters written by the 4th Defendant’s Zone ‘F’ and the National Secretariat addressed to the Chairman/Secretary of the Rivers State Council, Port Harcourt affirming the membership of the claimant. In any case, the defendants have not denied the claimant’s membership of the 4th Defendant.

It is also clear and evident from the processes in this suit (including the exhibits) that the Claimant was duly qualified to contest for the election into offices of the Rivers State Council of the 4th Defendant, and met the conditions stipulated in Article 6(7)(a) and (b) of the 4th Defendant’s Constitution. The Claimant deposed in paragraphs 1, 2, 3, 4, 5 and 6 of the supporting affidavit that he started work with Radio Rivers Port Harcourt in 1999 and is currently the Assistant Director Current Affairs Department of the radio station.

He further deposed in the said paragraphs of the supporting affidavit that, being a qualified journalist, he regularly pays his practicing fee to the 4th Defendant, and had served as Secretary Radio Rivers Chapel between 2006 – 2009, and also as Chairman Radio Rivers Chapel between 2011 – 2014. These facts having not been clearly denied by the defendants, I shall have no hesitation in accepting them as having been proved and established. I so find and hold.

The defendants’ main argument in opposition to the Claimant’s suit is that, since the claimant is alleging his exclusion from the 4th defendant’s election, he ought to have produced before the court the list of candidates published by the defendants, and that the non-production of any list is fatal to the case of the Claimant.

I must state that, even though I have held that the claimant is a member of the 4th defendant and eligible to contest election into posts in the 4th defendant’s Rivers State Council having met the conditions provided in Article 6(7)(a) and (b) of the 4th Defendant’s Constitution, it must however be noted that his case before the court is simply that of disqualification.

I therefore agree with the defendants that the list(s) of candidates cleared for the elections is/are sine qua non to the determination of this case. It is noted that, none of the exhibits annexed to the Originating Summons show that the Claimant contested any election not to talk of being disqualified from contesting any elective office. Exhibit ‘A’ is a Notification of Result of Postgraduate Diploma in Journalism; exhibit ‘B’ is the Claimant’s Identification Card of membership of the 4th Defendant; exhibit ‘C’ is a copy of the 4th Defendant’s Constitution; exhibit ‘D’ is a letter written by the 4th Defendant’s Zone ‘F’ on the 29th of April, 2010; while exhibit ‘E’ is a copy of letter written by the 4th defendant’s National Secretariat dated 13th July, 2009. Even though the learned Claimant’s counsel stated in paragraph 5.1 of the Written Address that, the Claimant after fulfilling the conditions stipulated in Article 6(7)(a)(b) of the  4th Defendant’s Condition paid the sum of Thirty Thousand Naira (N30, 000.00) as nomination fees imposed by the 4th defendant, I have gone through all the paragraphs of the Claimant’s Affidavits and there is nowhere the claimant deposed to the fact that he paid for nomination form. No receipt or document is forwarded to the court as evidence of any payment made by the Claimant. The law is trite that address of counsel no matter how gorgeously written cannot take the place of evidence. See  Mallam Yusuf Olagunju V. Chief E. O. Adesoye and Another (2009) 9 NWLR (Part 1146) 225.

I have equally looked at the Claimant’s Further and Better Affidavit filed on the 15th of November, 2018 (prior to the amendment of the Originating Summons), and the only relevant documents annexed to the said process are exhibits ‘FB6’ ‘FB8’and ‘FB9’. While exhibit ‘FB6’ is a copy of the Claimant’s Nomination Form for the post of Chairman of the Rivers State Council of the 4th defendant, exhibits ‘FB8’ and ‘FB9’ are copies of the Claimant’s Campaign Poster and Manifesto respectively. I do not think with these documents alone (without the list of the candidates), the claimant can establish a case of exclusion from an election.

The onus is therefore on the Claimant who is asserting his exclusion from the election to prove by way of credible and overwhelming evidence that even though he was duly nominated for the election, the election was conducted and concluded with a winner emerging without his name being included among the candidates/contestants. See Nasiru Mohammed and Another V. Kingsley O. C. Oriaku (2008) LPELR-4499(CA), and Hon. (Major) Satty W. Gogwim V. Hon. Zainab G. Abdulmalik and Others (2008) LPELR-4210(CA).

It is also noted that, the principal reliefs being sought by the Claimant in this suit are declaratory in nature. The law is settled that a Claimant seeking for declaratory relief must succeed on the strength of his case and not to rely on any weakness (where available) on the case of the Defendant. In fact, even where the facts are admitted by the Defendant, the law still enjoins the Claimant to establish his case by credible and convincing evidence to be entitled to the court’s exercise of discretion in his favour. In the case of Dumez Nigeria Limited V. Peter Nwakhoba and Others (2008) 18 NWLR (Part 1119) 361 S.C., the apex court held thus on the burden of proving declaratory relief:

 

“The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to the satisfaction of the court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declarations of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case, cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witnesses. See Wallersteiner v. Moir (1974) 3 All ER 217 at 251, where Buckley, LJ., said: It has always been my experience, and I believe it to be a practice of long standing, that the court does not make declarations of right either on admission or in default of pleading ——– but only if the court was satisfied by evidence. See also Metzger V. Department of Health and Social Security (1977) 3 All ER 444 at 451. This statement of the law was adopted by this court in Vincent I. Bello V. Magnus Eweka (1981) 1 S.C. 101; (1981) 1 S.C. (Reprint) 63, and also applied in Motunwase V. Sorungbe (1988) 12 S.C. (Pt. 1) 130; (1988) 5 NWLR (Pt.92) 90 at 102.”

See also Engr. George T. A. Nduul V. Barr. Benjamin Wayo and 3 Others (2018) LPELR-45151(SC).

 

In the circumstance, having held that the Claimant has established or proved his eligibility to contest for the office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ) having met the conditions set out in Article 6(7)(a)(b) of the Constitution of the Nigeria Union of Journalists (NUJ), question one (1) submitted for the court’s interpretation is resolved in favour of the Claimant. Consequently relief one (1) hereby succeeds and is granted.

However, since the Claimant has failed to establish or prove his disqualification or exclusion from contesting for the office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ), question two (2) submitted for the court’s interpretation is hereby resolved against the Claimant. Reliefs 2, 3, 4, 5 and 6 fail and are refused.

In the final result, the Claimant’s case succeeds in part only to the extent that he is qualified and eligible to contest for the office of the Chairman of the Rivers State Council of the Nigeria Union of Journalists (NUJ) having met the requirements/conditions stipulated in Article 6(7)(a)(b) of the 4th Defendant’s Constitution (exhibit C).

 

Judgment is entered accordingly.

 

I make no order as to costs.

 

 

Hon. Justice P. I. Hamman

Judge

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