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PASTOR (DR.) RICHARD EZE & 2 ORS -vs- COMR. IBRAHIM KHALEEL & 5

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: 30TH  APRIL 2018

 

SUIT NO. NICN/OW/66/2017

 

 

BETWEEN:

  1. PASTOR (DR.) RICHARD EZE
  2. COMR. ADAEZE OKORONKWO           CLAIMANTS
  3. COMR. OBODO JOHNBOSCO C.

 

 

AND

 

  1. COMR. IBRAHIM KHALEEL

(National President NULGE)

  1. COMR. CHUKS AGUONYE

(Secretary General NULGE)

  1. NIGERIAN UNION OF LOCAL

GOVERNMENT EMPLOYEES (NULGE)         DEFENDANTS

  1. COMR. UCHEGHARA NDUBUISI

(Chairman Caretaker Committee NULGE

Imo State)

  1. COMR. TONYE JAJA

(Secretary NULGE Imo State)

  1. CARETAKER COMMITTEE NULGE

IMO STATE

 

APPEARANCES:

  1. U.B. NWANKWO FOR THE CLAIMANTS
  2. J.N. OPARA FOR THE DEFENDANTS

 

JUDGMENT

INTRODUCTION

This suit was commenced by way originating summons on 17/11/2017. The reliefs sought are as listed hereunder:

  1. A DECLARATION that Rule 5 (ix) which puts the power of interpretation of the constitution on the National Executive Council of the 3rd Defendant is inconsistent with the power of the Courts [sic] to interpret Rules, laws and regulation[sic] brought before it for the purpose under the Constitution of the Federal Republic of Nigeria 1999 as amended and as such is void.
  2. A DECLARATION of the Honourable Court that the powers of suspension of the State Executive Council vested in the National Executive Council of the 3rd Defendant by Rule 10 (1) of the Union’s constitution must be in accordance with Rule 29 (4) (ii) of the same constitution and as such the suspension of the members of the Imo State Executive Council for undisclosed reasons and without been heard, or without lawful excuse and/or for any alleged act of any of her members is wrongful, unlawful and unconstitutional.
  3. A DECLARATION of the Honourable Court that the tenure of the 4th to 6th Defendants a Caretaker Committee constituted to run the affairs of Imo State branch of the Union for a temporary period is for a specified period of 3 months and the 1st to 3rd Defendants cannot in the guise of incessant and continuous extension perpetuate a Caretaker Committee as the substantive State Executive Committee to the detriment of Elected State Administrative Working Committee whose tenure of office is still subsisting and as such, the 5th to 6th Defendants’ continued running of the Imo State branch of the 3rd Defendant or conduct of any election for the Local branches and/or any exercise of power whatsoever by them by any means whatsoever is wrongful, illegal and unconstitutional.
  4. A DECLARATION of the Honourable Court that the 1st to 3rd Defendants are not empowered by the constitution of the 3rd Defendant to dissolve the State Administrative Working Committee which power is the exclusive reserve of the State Delegates Conference of the State branch of the 3rd Defendant and any such dissolution is ultra vires, wrongful, unlawful and unconstitutional.
  5. A DECLARATION of the Honourable Court that the Claimants [sic] purportedly suspended are entitled to their allowances and other benefits accruing to them within the period and till the expiration of their tenure of office in line with her constitution not having been expelled and the suspension being wrongful.
  6. A DECLARATION of the Honourable Court that the purported election sought to be conducted within seven days as against the usual minimum of one month notice and without observing the Union’s electoral procedure which consists of notification of expiration of office of the incumbent leadership, purchase of forms, screening, publication of list of successful candidates and resolution of objections if any before the election proper aimed at disenfranchising members is wrongful and unconstitutional and as a result same is void and of no effect whatever.
  7. AN ORDER of Court dissolving the Caretaker Committee and reinstating the Claimants back to their various executive offices to discharge their functions until the expiration of their tenure of office in line with her constitution.
  8. AN ORDER of Court that the full allowances, bonuses and other entitlements of the Claimants should be paid them with immediate effect.
  9. AN ORDER of injunction restraining the 4th to 6th Defendants from presenting themselves as leaders of the Imo State branch of the Union and from conducting any election for the local branches of the Imo State branch of the Union and/or exercising any executive powers especially remittance of check off-dues at all levels since the tenure of office of the Claimants still subsists.
  10. AN ORDER of injunction restraining the 1stto 3rd Defendants or any of their agents, privies or anybody acting for or under their instruction from dissolving the Imo State Executive Council of the Union [sic].
  11. AN ORDER of Court Invalidating and setting aside any purported election conducted and activities carried out and/or any executive function purportedly discharged by the 4thto 6th Defendants after the expiration of its tenure.
  12. N10,000,000.00 (Ten Million Naira) damages to Claimants for loses suffered as a result of the unlawful conducts of the Defendants.

 

The following questions were also submitted for the determination of the originating summons:

  1. Whether Rule 5 (ix) of the Constitution of the Nigeria Union of Local Government Employee (NULGE), 2005, which puts the power of interpretation of this constitution on the National Executive Council is not unconstitutional given that it is inconsistent with the powers of Courts granted by the Constitution of the Federal Republic of Nigeria 1999 as Amended.
  2. Whether by the Provisions of Rule 10 (i), Rule 27 (vii) and Rule 29 (4) (ii) of the Constitution of the Union of Local Government Employee (NULGE), 2005, the entire members of the Imo State Executive Council comprising of the Claimants and the Local branch Chairmen of the Union could be suspended by the 1st to 3rd Defendants without been heard and for undisclosed reasons or upon an act allegedly committed by any of her officer(s).
  3. Whether by the provisions of Rule 10 (i), Rule 16 (i) (d) and 29 (4) (ii) of the constitution of the Nigeria Union of Local Government Employees (NULGE), 2005, the 1st Defendant to 3rd Defendants have the right to lift the suspension of the elected local branch executives without lifting that of the Claimants both constituting the purportedly suspended State Executive Council (SEC).
  4. Whether by the provisions of Rules 6 (3) and Rule 10 (i) of the Nigeria Union of Local Government Employees (NULGE), 2005, the 1st to 3rd Defendants can be granting arbitrary continuous extension of time to the 4th to 6th Defendants to constitute the substantive State Executive Council of the Imo State branch of the Union and to continue in administering the Imo State branch of the Union to the detriment of elected State Executive Council whose tenure of office still subsists and/or conduct elections for the Local branches, after the expiration of its specified constitutional tenure.
  5. Whether by the provisions of Rules 10 (i) and 27 (vi) and (viii) of the Nigeria Union of Local Government Employees (NULGE) constitution 2005 the 1st to 3rd Defendants of the Union has the power to dissolve any elected State Executive Council of a State branch of the 3rd Defendant.
  6. Whether by the provisions of Rule 26 and Rule 27 (vi)-(vii) of Nigeria Union of Local Government Employees (NULGE) constitution, 2005, the members of the elected State Executive Council amongst which are the Claimants are not entitled to their allowances and bonuses having not been expelled or specifically indicted of any serious misconduct.
  7. Whether by the provisions of Rule 2 (vii) and Rule 29 (13) of Nigeria Union of Local Government Employees (NULGE) Constitution, 2005, the 4th to 6th Defendants can disenfranchise the members of the Imo State branch of the Union by hastily imposing a seven day period for election as against the minimum period of one month and refusing to observe the Union’s electoral procedures which consist of notification of expiration of office of the incumbent leadership, purchase of forms, screening, publication of successful candidates and resolution of objections if any before the election proper.

 

On the 12th April 2018, the case came up for hearing of both the Notice of Preliminary Objection [NPO] filed against the suit and the substantive suit [the originating summons]. On this date J.N. OPARA, of counsel to the defendants/applicants first adopted the written address filed in respect of the NPO dated and filed the 11th December 2017 and urged the Court to uphold the NPO. Thereafter, U.B. NWANKWO, of counsel to the claimants/respondents, relied on the counter affidavit filed against the NPO on 27/2/18 and adopted the written address dated the 26th February 2018 and filed the 27thFebruary 2018.

I cannot find any place where the counsel to the claimants asked for extension of time to file the counter affidavit against the NPO, obviously filed out of time. Order 17, Rule 10 of the NICN Rules gives the respondents 7 days to file counter affidavit and written address against the motion on notice. The counter affidavit of the claimants/respondents filed on 27/2/18 against the NPO filed on 11/12/17 is clearly filed out of time. Having failed to apply for extension of time to file it and leave to deem same as properly filed and served; and the Court, not being a Father Christmas, I hold that the counter affidavit and the written address of the claimants/applicants, filed against the NPO, are not cognizable by the Court.  I shall therefore not summarise or make reference to them in the resolution of the NPO.

I also observed that on the 15th March 2018, when this matter came up, the counsel to the claimants made an oral application to regularize the Further Affidavit and the Reply on Points of Law filed out of time. I noticed that the Court did not consider this application, instead, the Court moved to discharge its earlier order to maintain status quo ante and thereafter adjourned the substantive case for hearing, leaving this application hanging in the air. To compound matters, the counsel to the claimants did not draw attention of the Court to this either on that day or on the 12th April 2018 when the substantive matter came up for hearing. What is the way forward? I find guidance in the Supreme Court’s decision in United Bank for Africa Ltd. v. Dike Nwora (1978) LPELR-3401 (SC) 12, paras. F-G., where it was held that:

“We think it applies to cases where a defence has been filed out of time. In such cases, the parties can, by consent, regularize the position or the court, provided the Statement of Defence discloses a substantial ground of defence, can do so by either on application or suo motu”.

 

See also Ukiri v. Geco-Parakla (Nigeria) Ltd (2010) LPELR-3341 (SC) 16, paras. B-E. and Chief  J.L.E. Duke v. Rev. (Dr.) Peter Etim Duke (2014) LPELR-23095 (CA) 15.What is more, the claimants’ counsel actually moved the Court to grant extension of time and leave to file these processes out of time, but the Court inadvertently failed to ruleon the application. Should the fault of the Court be visited on the litigant? I think the answer is no. This is the type of error which the Court could correct before it becomes functus officio; more so, when the defendants counsel made no issue out of this throughout the hearing of the case. I also observed that, even though, the counsel to the claimants made the application for regularization orally, but I found a motion on notice dated 14th March 2018 and filed 15th March 2018 on behalf of the claimants asking for regularization of these very processes and I observed that the default fee of N1,400.00 was paid. So, on what ground would the Court deny the claimants the filing of the further affidavit in reaction to the counter affidavit of the defendants. This further affidavit stands in the position of reply to statement of defence, the case, being originating summons. I therefore grant the application of counsel to the claimants; and the further affidavit and the accompanying reply on points of law are deemed properly filed and served. The Court shall take cognizance of them.

Subsequently this same day, U.B. NWANKWO went on to the substantive suit. Counsel drew the attention of the Court to the fact that the originating summons dated 16th November 2017 commenced this suit on 17th November 2017. Counsel indicated that in support of the originating summons was 45-paragraph affidavit to which was annexed 18 exhibits. Counsel also drew the Court’s attention to the fact that a written address dated 16th November 2017 was filed in respect of the originating summons on 17th November 2017. Counsel thereafter adopted the written address and urged the Court to grant the reliefs contained in the originating summons.

Thereafter, J.N. OPARA, of counsel to the defendants, drew the attention of the Court to the fact that in opposition to the originating summons, the defendants filed a 34-paragraph counter affidavit on 11th December 2017; to which was annexed exhibit A. Counsel relied on all the paragraphs of the counter affidavit. Counsel also drew the attention of the Court to the written address dated and filed 11th December 2017 in support of the counter affidavit against the originating summons. Counsel thereafter adopted this written address as the arguments of the defendants against the originating summons; and urged the Court to dismiss the originating summons.

After the above, counsel to the claimants, U.B. NWANKWO, drew the attention of the Court to the fact that the claimants filed a 41-paragraph further affidavit on 15/03/18 with which was attached two exhibits.Counsel relied on all the paragraphs of the further affidavit. Counsel also drew attention of the Court to the reply on points oflaw dated 14th March 2018 and filed 15th March 2018. Counsel also adopted this reply on points of law, and urged the Court to grant the reliefs claimed in the originating summons. Thereafter, the case was adjourned to 24th April 2018 for judgment, but the judgment could not be delivered on this date, as it was not ready. It was therefore further adjourned off record to 30th April 2018.

The next thing for me is to summarise the cases of the parties as regards the NPO and the originating summons as contained in the relevant written addresses of counsel to the parties.

 

THE CASES OF THE PARTIES

 

  1. Address on the NPO:

I shall start first with a review of the address in support of the NPO. The grounds of the NPO are:

  1. That the facts of this case are so hostile in nature that it ought and should commence by general writ and not originating summons.
  2. That it is inappropriate for the merits of this case to be heard with reliance on the old constitution of NULGE.

 

In the written address in support of the NPO, the defendants/applicants submitted a sole issue for the determination of the NPO, to wit:

Whether it is proper for this suit to be commenced by originating summons [sic] having regard to the number of disputes facts and issues in the case. [sic]

 

Arguing this lone issue, the learned J.N. OPARA, who settled the written address, submitted that the claimants have raised contentious issues in this suit, which the defendants could only adequately respond to by oral testimony and cross-examination of the witnesses for the other side. Counsel submitted further that originating summons could only be used to determine issues of short questions of construction of law, constitution and interpretation and not for matters that are controversial. Counsel relied on Anatogu v. Anatogu & 5 ORS. (1997) 9 NWLR (Pt. 519) 49 at 70, paras. G-H; Alegbe v. Oloya (1983) 14 NSCC 315 at 335 lines 40-53; and Aeyelu II & 4 Ors. v. Oyewummi & Ors. (2007) 14 NWLR (Pt. 1053) 1 at 16, paras. A-B. Counsel argued that because the case is one involving very hostile and contentious facts, as evident in the affidavit of parties, the defendants are entitled to cross-examine the claimants for the Court to arrive at the justice of the case. Counsel therefore urged the Court to resolve this issue in favour of the defendants/applicants.

No reply on points of law was filed. I move to the cases of the parties on the merit of the originating summons.

 

  1. Addresses on the Originating Summons

I start with the claimants. The case of the claimants as made out in the written addresses is summarised hereunder. In arguing the written address dated 16th November 2017 and filed along with the originating summons on the 17th November 2017, the counsel to the claimants: G.C. OPARA and U.B. NWANKWO, adopted the 7 questions submitted and reproduced earlier on as the issues for determination of the originating summons.I shall now proceed to summarise this address under the issues formulated.

 

ISSUE 1:

Whether Rule 5 (ix) of the Constitution of the Nigeria Union of Local Government Employee (NULGE), 2005, which puts the power of interpretation of this constitution on the National Executive Council is not unconstitutional given that it is inconsistent with the powers of Courts granted by the Constitution of the Federal Republic of Nigeria 1999 as Amended.

 

Under the above issue, the learned counsel to the claimants submitted for the claimants that the provisions of Rule 5(ix) of the Constitution of the Nigerian Union of Local Government Employees [CNULGE, 2005] is void to the extent of its inconsistency with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 [1999 Constitution] as they run contrary to the powers of the courts to interpret and construe documents, rules, statutes and regulations by virtue of sections 1(3) & 6(1) of the 1999 Constitution; and more so, by making the interpretation of the National Executive Council [NEC] of the Nigeria Union of Local Government Employees [NULGE] final and conclusive. On this, counsel cited FRN v. Osahon (2006) 2 SCNJ 348 and Oloyede Ishola v. Olusegun Obasanjo (1994) 7-8 SCNJ 1to buttress the point.  I shall now move to issues 2 and 6, which were argued together by the counsel.

 

ISSUES 2 & 6:

  1. Whether by the Provisions of Rule 10 (i), Rule 27 (vii) and Rule 29 (4) (ii) of the Constitution of the Union of Local Government Employee (NULGE), 2005, the entire members of the Imo State Executive Council comprising of the Claimants and the Local branch Chairmen of the Union could be suspended by the 1stto 3rdDefendants without been heard and for undisclosed reasons or upon an act allegedly committed by any of her officer(s).

 

AND

 

  1. Whether by the provisions of Rule 26 and Rule 27 (vi)-(vii) of Nigeria Union of Local Government Employees (NULGE) constitution, 2005, the members of the elected State Executive Council amongst which are the Claimants are not entitled to their allowances and bonuses having not been expelled or specifically indicted of any serious misconduct.

 

Under these issues, counsel argued for the claimants that by virtue of Rules 10(i), 27(vi) & (vii) and 29(4)(ii) of the CNULGE, 2005, the State executive, of which the claimants were members, could not be suspended without being heard and for undisclosed reasons and in the absence of any reprehensible conduct of her officers; and that as such, the suspension is null and void. Counsel reproduced the provisions cited to buttress their submissions, and argued that, these rules ought to be construed together to arrive at a holistic intendment of the CNULGE 2005. Counsel submitted that by this logic, the provisions of Rule 29 of the CNULGE, 2005, which provides for fair treatment of members, fair play and rules of natural justice, has bearing on the entire provisions of the CNULGE, 2005. Counsel argued that, in virtue of the above, the 1st – 3rd defendants could not suspend the State Executive Council at their whims and caprices, but only in strict accordance with the provisions of Rule 29 of the CNULGE 2005. Counsel on behalf of the above contention cited Okike v. Legal Practitioner Disciplinary Committee (2005) 15 NWLR (Pt. 949) 471. Citing A-G Rivers State v. Gregory Ude (2006) 7 SCNJ 613,counsel submitted that, the NEC in suspending the claimants, constituted itself into a quasi-judicial body and as such, bound to observe the rules of natural justice. Counsel also argued that, even if an official is rightly suspended, s/he is still entitled to all allowances and bonuses by virtue of Rule 27(vi) & (vii) of the CNULGE 2005, which makes only an expelled officer unentitled to allowances and bonuses. Counsel submitted that by virtue of this Rule, since the claimants were only suspended and not expelled, they remained entitled to their allowances and bonuses. Thus, counsel ended their submissions with regard to issues 2 & 6 and moved to issue 3.

 

ISSUE 3:

Whether by the provisions of Rule 10 (i), Rule 16 (i) (d) and 29 (4) (ii) of the constitution of the Nigeria Union of Local Government Employees (NULGE), 2005, the 1st Defendant to 3rd Defendants have the right to lift the suspension of the elected local branch executives without lifting that of the Claimants both constituting the purportedly suspended State Executive Council (SEC).

 

Counsel submitted on behalf of the claimants on the above issue that, by virtue of Rules 10(i), 16(i)(d) and 29(4)(ii) of the CNULGE, 2005, since the NEC is empowered to suspend the SEC and also to recall it, it could only recall the executive council suspended as a whole and not members in piecemeal. Counsel submitted further that by Rule 5(ii) of the CNULGE 2005, the CNULGE 2005 constitutes the contract between the members and that any power not expressly granted therein could not be exercised. On this view, counsel cited Olaniyan v. UNILAG (1985) LPELR-2565 (SC) and Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) 755. Counsel submitted that since the wording of the CNULGE 2005 does not in any place empower the NEC, through the 1st-3rd defendants, to recall the suspended SEC members piecemeal, the 1st-3rd defendants thus acted ultra vires. Counsel ended submissions on issue 3, and moved to issue 4. But, I shall however summarise issues 4 & 5 together, because,in my own view, they are interconnected.

 

ISSUES 4& 5:

  1. Whether by the provisions of Rules 6 (3) and Rule 10 (i) of the Nigeria Union of Local Government Employees (NULGE), 2005, the 1stto 3rdDefendants can be granting arbitrary continuous extension of time to the 4th to 6th Defendants to constitute the substantive State Executive Council of the Imo State branch of the Union and to continue in administering the Imo State branch of the Union to the detriment of elected State Executive Council whose tenure of office still subsists and/or conduct elections for the Local branches, after the expiration of its specified constitutional tenure.

 

AND

 

  1. Whether by the provisions of Rules 10 (i) and 27 (vi) and (viii) of the Nigeria Union of Local Government Employees (NULGE) constitution 2005 the 1stto 3rdDefendants of the Union has the power to dissolve any elected State Executive Council of a State branch of the 3rd Defendant.

 

In arguing issue 4, counsel relied on Rule 6(iii) of the CNULGE 2005 and submitted that, the 1st-3rd defendants could not in the guise of caretaker committee, continue to constantly and arbitrarily extend the temporary tenure of the 4th-6th defendants in order to perpetuate them in office till the end of the tenure of the elected officers suspended and to the detriment of these officers. Counsel submitted that mutatis mutandis, the provision of 3 months for caretaker committee also applies to the State and that the CNULGE 2005 does not intend that a caretaker committee be constituted in perpetuity or used as a ploy to subvert the elected SEC and convert the caretaker committee to the substantive SEC and prevent the elected but suspended SEC from serving out their tenure. Counsel urged the Court to rely on the golden rule of interpretation to arrive at this view and not rely on the rules of literal interpretation, which contains a mischief, which the 1st-3rd defendants are already exploiting by perpetually extending the tenure of the caretaker committee to the detriment of the elected SEC. Thus, counsel ended submissions with regard to issue 4 and moved to issue 5.

In arguing issue 5, counsel argued that Rule 10(i) of the CNULGE 2005 only talks about the dissolution of the whole of the State Branch and not the SEC; and that, the power to dissolve the SEC is vested by the provisions of Rule 27(iii) of the CNULGE 2005. Counsel submitted that, it is thus unambiguously evident that, by this, while the power to dissolve the NEC lies with the National Delegates Conference [NDC], the power to dissolve the SEC lies with the State Delegates Conference [SDC]. Counsel thereafter urged the Court to resolve issue 5 in favour of the claimants and against the defendants.

 

ISSUE 7:

Whether by the provisions of Rule 2 (vii) and Rule 29 (13) of Nigeria Union of Local Government Employees (NULGE) Constitution, 2005, the 4th to 6th Defendants can disenfranchise the members of the Imo State branch of the Union by hastily imposing a seven day period for election as against the minimum period of one month and refusing to observe the Union’s electoral procedures which consist of notification of expiration of office of the incumbent leadership, purchase of forms, screening, publication of successful candidates and resolution of objections if any before the election proper.

 

In arguing issue 7, counsel submitted that the conducts of the 1st-6th defendants in concert in hastily fixing an election within seven days thereby circumventing the standard electoral procedure of the Union is wrongful, unconstitutional and thus meant to disenfranchise the members of the Imo State Branch of the Union. Counsel also submitted that election is conducted within a month of its announcement as deposed to in affidavit in support and that, notification of the expiration of the incumbent SEC is not given nor forms put out for sales and neither was screening of candidates, publications of successful candidates and resolution of objections done as enjoined by Rule 6(ix)-(xiii) of the CNULGE 2005. At this juncture, counsel urged the Court to so hold.

Finally, counsel urged the Court to grant all the reliefs sought by the claimants. Thus ended the address of counsel in support of the originating summons. I shall now turn to the case of the defendants against the originating summons as contained in their counter-affidavit and written address in opposition.

 

  1. Address of the Defendants

In the written address dated and filed 11th December 2017 alongside the counter-affidavit on the same date, the counsel to the defendants: J.N. OPARA, who settled the written address, formulated three issues for the determination of the originating summons, to wit:

  1. From the circumstances of the case, whether this suit ought to have been commenced by originating summons?
  2. Whether the Claimants [sic] are entitled to the reliefs [sic] which they seek from the Honourable Court by way of originating summons?
  3. Whether the interpretation and implementation of NULGE 2016 Constitutional provisions by NEC against erring members is unconstitutional and inconsistent with 1999 Constitution of FRN?

 

I shall not bother to summarise arguments canvassed under issue 1 as they are exactly the same arguments canvassed with respect to ground 1 of the NPO, which arguments have already been summarised before now. I shall instead move straight to issues 2 & 3.

 

ISSUE 2:

Whether the claimants are entitled to the reliefs, which they seek from the Honourable Court by way of originating summons?

 

Submitting under this issue, counsel to the defendants argued that the claimants, who were suspended for financial embezzlement and failure to remit check-off dues, had not shown by their affidavit that they have been unjustly treated or suffered absence of fair hearing. Counsel submitted that the law is that he who asserts must prove. On this, counsel cited Tangle Traditional Council v. Fawu & Anor. (2002) FWLR (Pt. 117) 1137 at 1164 and Cardoso v. Daniel (1998) 2 NWLR (Pt. 20) 1 at 36 E-F. Counsel submitted further that the CNULGE 2005 on which the claimants placed reliance is spent by virtue of the existence of the current CNULGE 2016, and that, as such, Exhibit A, the CNULGE 2005 is of no use, since, in the new constitution, there is no provision for the frame of time of one month within which to conduct election and that the claimants, who are on suspension, are also not entitled to their allowances. Counsel also submitted that the claimants’ reliefs 7-12 are reliefs that cannot be claimed through originating summons because of the hostile nature of the facts of the case. To buttress this submission, counsel cited Adeyelu II & Ors. v. Oyewummi (Ajagungbade III) & 2 Ors. (2007) 14 NWLR (Pt. 1053) 1 at 16. On the basis of the above, counsel urged the Court to dismiss these reliefs.Counsel thereafter moved to issue 3.

 

ISSUE 3:

Whether the interpretation and implementation of NULGE 2016 Constitutional provisions by NEC against erring members is unconstitutional and inconsistent with 1999 Constitution of FRN?

 

In arguing this issue, counsel submitted that the interpretation and implementation of the CNULGE 2016 against erring members of the Union by the NEC is not inconsistent with the provisions of the 1999 Constitution by virtue of Rule 5(xi) of the CNULGE 2016, which gives the NEC the power of final determination of disputes bordering on the interpretation of the CNULGE 2016; so far, the members of the NULGE chose to abide by this rule of their own volition. Counsel submitted that, it has been shown in paragraphs11-15 of the Counter-Affidavit that the claimants erred in their posts. Counsel also submitted that the courts could not interpret the constitution in favour of erring members for the purpose of evading the disciplinary measures of suspension spelt out in Rule 35(vi) of CNULGE 2016.Counsel thereafter submitted that the power to establish and dissolve a state chapter and the power too, to suspend any state’s executive and appoint a caretaker committee in its stead, if, in the opinion of the NEC the SEC has seriously violated the provisions of the constitution, are sacrosanct.

Counsel submitted that the claimants were adequately heard by the six-man committee as indicated in the report marked as Exhibit Cin the affidavit supporting the originating summons contrary to the assertion of the claimants. Counsel submitted that in virtue of this, the contentions of lack of fair hearing and failure to give reasons for the suspension were unfounded. Counsel argued that Rule 11(i) of CNULGE 2016 is the applicable Rule and not Rules 16(1) and 29(4). Counsel submitted that the claimants, within the period of their tenure, enjoyed all their allowances and bonuses until their indictment and that the recall of the LG Chairmen was based on the fact that they were not involved in the fraudulent activities of the SAWC for which the suspension provision was invoked. Counsel also argued that Rule 6(iii) of the CNULGE 2005 referred to by the claimants is inapplicable. Counsel thereafter argued that by para. 9 of the Counter-Affidavit, the NEC has the exclusive power to appoint or reappoint a caretaker committee in the place of SEC for a specified period and could extend the period as exigencies demand.

Counsel later submitted that the claimants having been found guilty by the six-man panel, the NEC exercised their power of suspension under Rule 35(vi) of the CNULGE 2016 to suspend them. Counsel submitted further that, having been found guilty; the claimants were not dissolved but suspended for financial misappropriation.  Relying on Rules 26 and 27(vi) & (viii) of CNULGE 2016, counsel submitted that,a suspended executive member is not entitled to bonuses and allowances. Counsel agreed that Rule 29 of CNULGE 2005,as cited by claimants provided for participation in election but that, the claimants of their own volition decided not to participate in the election and that more so, the CNULGE 2016 does not provide for election modalities and the time frame of one month but that the defendants applied rules of the thumb by providing for notice of sale of forms, screening of candidates, publication of successful candidates, time table, etc.Counsel finally urged the Court to find in favour of the defendants and dismiss the originating summons.

 

  1. Reply on Points of Law by the Claimants

C.M. EJIKE, G.C. OPARA, and U.B. NWANKWO, of counsel to the claimants,filed the reply on points of lawdated 14/03/18 on 15/03/18. Let me sound a warning that, I am only obliged to summarise what is legally reply on points of law; and that is exactly what I shall do here, leaving out extraneous matters. In reply to the allegations of fraud as the basis of suspending the claimants, counsel submitted that, the suspension and dissolution, which was don subjudice, do not conform to the extant CNULGE 2005 and even the purported CNULGE 2016; and that, the suspension equally infringed the principles of natural justice since the claimants were not afforded the opportunity of being heard nor any query or audit report rendered before the defendants proceeded to condemn them.

Counsel submitted that the claimants,afterthe suspension,exhausted all internal mechanisms for redress, and that, this action was commenced when after more than a year, there was no succor, and that, as a result of commencing this action, they were dissolved. Counsel submitted that the mere suspension of a person does not deprive him of entitlement to his salaries – Bernerd Longe v. First Bank of Nigeria Plc (2010) [no further details of citation given]. Counsel submitted that, the defendants’ concocted Committee Report, made during the pendency of this suit, is out to set a booby trap for the Court and that, it is settled that, courts of law cannot be used as an instrument of perpetuating fraud – Alero Jadesimi v. Fred Egbe (2003) 36 WRN 79 and LABABEDI v. Lagos Metal Industries (Nig.) Ltd (1973) NSCC 1 were cited in support. Counsel submitted further that since the purported Committee Report was made without explanation, it must be held as an afterthought, made simply for the purpose of this suit; and as such, inadmissible. For this submission, counsel relied on section 83(3) of the Evidence Act, Ikenye v. Ofunne (1985) 2 NWLR (Pt. 5) and Raimi v. Akintoye (unreported) Supreme Court case No. SC.226/1984.

Counsel went further to argue that, paras. 8, 9, 23, 24 and 30 of the Counter-affidavit are either augments or legal conclusions and as such, should be struck out by virtue of section 115(1) & (2) of the Evidence Act 2011. Counsel also argued that the deponent to the counter-affidavit Comr. Tonye Jaja was, as at the time he deposed to the counter-affidavit, not holding the office claimed, as he had been removed and replaced by Mustapha Jamilu. Counsel submitted that by virtue of section 115 of the Evidence Act [supra], since the depositions therein contained are ones that could only be garnered by occupying such office, the counter-affidavit is incurably bad and liable to be discountenanced.

Counsel stated that parties from both sides agreed to the existence of CNULGE 2005 and its bindingness on both sides. Counsel submitted that, where the repeal or change of such document is ordinarily supposed to be to the knowledge of both sides, the presentation of a new document in the place of the original document by one side, which document is to the exclusive knowledge of that sidealone, and the document is presented without cogent explanation as to its sudden existence and appearance, the said document would be deemed to have been made for the sole purpose of the suit, and would be inadmissible. Counsel submitted that, in the various affidavits of the claimants and the defendants, both sides agreed to the existence andbindingness of CNULGE 2005 on both sides up to immediately before the filing of this suit and that,all the communications till then were made on the basis of CNULGE 2005; and that,it was only after filing this suit that the defendant began to parade another document never referred to in any correspondence before filing this suit, except for the entire document the defendants concocted and backdated to frustrate this suit.Counsel submitted further that, where parties have submitted to the jurisdiction of a court, any action taken by one side to the detriment of the other and more so, by issuing document confirming this, such steps amount to contempt of Court. On the basis of the above, counsel urged the Court to hold that the CNULGE 2016 was concocted to frustrate this suit.

Counsel also argued that it does not lie in the mouth of the defendants to argue that claimants lack the consent of the other members of the Elected State Administrative Working Committee [SAWC] to institute this action, which is clearly instituted in representative capacity and the affidavits in support attesting to this, more so, when none of the members being represented has complained against the representation. Counsel urged the court to ignore the objection of the defendants; and finally urged the Court to grant all the reliefs prayed by the claimants in the interest of justice.

As could be seen, the cases of the two sides have been carefully summarised above. Having got to this stage, the next duty on the Court is to apply law to the facts of the case and give an appropriate decision in accordance with the law. And in doing this, I shall render my decision on the NPO first.

 

DECISION OF THE COURT ON THE NPO

 

Let me reiterate the fact that the NPO is going to be decided on only the processes filed by the defendants/applicants with regard to the NPO, since I have discountenanced those filed irregularly by the claimants/ respondents.But this does not relieve me of my responsibility to inquire into the merit of the NPO in law.

I have listened to the arguments of counsel to the defendants/applicants on the NPO. In this regard, what I found is that the objections of the defendants/applicants are three-pronged based: (1) that the CNULGE 2005 relied on by the claimants in instituting this action is spent, (2) that the facts of this case are in serious contest such that, only an order that pleadings be filed and testimony by oral evidence be conducted, could resolve them, and that,by this, the case ought to have been commenced via pleadings and not originating summons, and (3) that, originating summons is only appropriate for cases where there is just a short question of law to resolve, and that, in the instant case, there are too many and complicated questions to resolve.

I shall like to start first with the issue of CNULGE 2005 being spent. In this, I waste no time in holding that,the ground of the NPO relating to the CNULGE 2005 being spent, is deemed abandoned. What happened here, is that, the issue of relying on repealed CNULGE 2005 was made a ground of the NPO, but when issue was formulated in the written address, it was not covered nor any argument canvassed in its support. Hence, the ground of objection is deemed abandoned – see Dr. Kelvin Ochin & Ors v. Professor Onora Louis Victor Ekpechi (2000) LPELR-6819 (CA) 19, paras. A-D.Hence, I hold that the issue relating to the nullity of the CNULGE 2005 is deemed abandoned.

The next is the issue of whether the facts relating to the case, as deposed to in the affidavits and counter-affidavit of parties in the originating summons, are irreconcilable, such that,only pleadings and oral testimonies could do justice in the case. This issue could only be resolved if approached alongside the questions submitted by the claimants for the determination of the case and the evidence at the disposal of the parties, as presently contained in the affidavits of both sides. In this particular case, I observed that the questions to be answered all dovetail into the construction of the constitution of the parties, which is the contract between the parties. The main questionsare questions 1, 3,4, 5 and 7. For example, question 5 poses, “whether by the provisions of Rules 10(i) and 27(iv)-(vii) of the Nigeria Union of Local Government Employees (NULGE) constitution 2005 the 1st to 3rd Defendants of the Union has [sic] the power to dissolve any elected State Executive Council of a State branch of the 3rd Defendant”. I think this question, as it is, is squarely a question of construction of the provisions in question without even the need to resort to any facts of the case because, there is no dispute as to the fact that the claimants herein were suspended and not recalled.

Questions 1, 3, 4and 7 are similarly squarely questions of construction of the relevant provisions of the constitution cited based on the settled fact that the claimants were suspended. I thinkthe twoother questions are ancillary to these. Even if it is not so, I have combed through the affidavits and counter-affidavits of parties and could not find any issue of facts which could not be resolved by careful consideration of the documentary evidence adduced. As to the issue of a short question being suitable for originating summons, my take on this is that, the extent of shortness is not stated in the authority cited. Hence, whether or not a question is short, is therefore a relative term.Here, I found that the questions to be answered are cumulatively short, dealing with just 8 short rules of the hefty constitution of the parties’ union. Thus, the principal questions raised in this suit are strictly that of construction of the provisions of the constitution of the parties on settled facts and the documentary evidence adduced could settle the remainders. When situations like these occur, there is no need to order pleadings – see Jev & Anor v. Iyortyom & Ors. (2014) LPELR-23000 (SC) 46-47, paras. F-B. I therefore hold that this action is properly commenced by originating summons.

At the end, I found the NPO unmeritorious. It is accordingly dismissed in its entirety. I now proceed to my decision on the merit of the case.

 

DECISION OF THE COURT ON THE MERIT OF THE CASE

 

In deciding this case on its merits, I shall depart from all the issues formulated by the parties, for, in my view, they are too prolix, and shall formulate just two issues, which I feel are concise enough to take care of all the questions that arise for determination in the suit. They issues are:

  1. Whether the Constitution of the National Association of Local Government Employees, 2005,[CNULGE 2005] on which this action is based, is valid and subsisting?
  2. If the answer to issue 1 is in the affirmative, whether, on a proper construction of the relevant provisions of CNULGE 2005, the claimants are entitled to the reliefs claimed?

 

Before delving into the above issues formulated for the resolution of the case, there are twopreliminary points I wish to take first. The defendants raised, in paragraph 30 of their counter-affidavit, the issue of non-exhaustion of the internal administrative mechanism of dispute resolution before the claimants rushed to Court. First, let me say, I could not find where this issue was discussed in their written address. It means the issue has been abandoned – Shell Petroleum Development Company of Nigeria Limited v. Chief G.B.A. Tiebo & Ors. (2005) LPELR-3203(SC) 14, para. A. [supra].

Besides, the defendants, in paragraph 28 of their counter-affidavit acknowledged Exhibit E3, which is a reply of the defendants to the appeal of the claimants to look into the issue of their suspension, and introduced by paragraph 36 of the affidavit in support of the originating summons. Exhibit E3 was dated 10th August 2017. This suit was commenced on 17th November 2017: a period of about 3 months interval, yet the defendants never did anything to attend to the appeal of the claimants. Note that Rule 5(iii)(a)-(b) of the CNULGE 2005 did not provide for the specific length of time the claimants had to wait to get his petition attended to. In my view, I think a period of three months is sufficient for the defendants to attend to the petition of suspended elected members. So, I cannot understand what the defendants mean when they said, in their paragraph 30, that the claimants failed to explore the internal mechanism of settling disputes before rushing to Court. Do they mean the claimants should wait in perpetuity while the defendants continue to extend the tenure of people not voted for! That cannot be the intendment of Rule 5(iii)(a)-(b) of CNULGE 2005. In my humble but firm view, the claimants have exhausted all the administrative mechanisms before approaching the Court. For this and the earlier reason, the action is thus not premature. And I so hold.

I shall now take the two issues distilled above seriatim for the determination of this suit.

 

ISSUE 1:

Whether Constitution of the National Association of Local Government Employees, 2005, [CNULGE 2005] on which this action is based, is valid and subsisting?

 

In answering issue 1, my first duty is to investigate and make a decision on which of the two constitutions being touted by the opposing parties is to be relied on in this case. The claimants tout CNULGE 2005, while on the other hand, the defendants depend on CNULGE 2016, exhibited with the affidavit in support of their NPO. Both sides are agreed that the bedrock of the contract between the parties is the Constitution of the NULGE, but they are in sharp disagreement on which is the Constitution to use in arriving at a just decision in this case.

This puzzle raises the questions of when was the contract between the parties entered into and which constitution was in force at the material time and which constitution was in force as at the time the cause of action arose. The claimants were elected into their positions in the Imo State Branch of the NULGE on 14th June 2014 – see paragraph 10 of the affidavit in support. By paragraph 12 of the affidavit in support of the originating summons, the claimants were to occupy the offices into which they were elected for four years; meaning that their offices would have lapsed by 14th June 2018. By paragraph 13 of the affidavit in support of the originating summons, the tenure of the claimants were elongated by two years at the National Delegates Conference held in Akure on 13th October 2016. By paragraph 11 of the same affidavit, it was shown that the CNULGE 2005 was the applicable constitution constituting the contract between the parties.

In reaction to the depositions contained in the above stated paragraphs of the affidavit in support of the originating summons, the defendants in paragraphs 4 of their counter-affidavit, which reacts to paragraph 10 of the affidavit of the claimants, said the fact stated therein are within the knowledge of the claimants and that the defendants are not in a position to deny or affirm same. Now, the position of law is that evidence contained in an affidavit not denied by the other side in their counter-affidavit is deemed admitted – see Commissioner of Police v. Agholor (2014) LPELR-23212 (CA) 31, paras. A-C. In paragraph 5 of the defendants’ counter-affidavit, which reacted to paragraph 11 of the affidavit in support of the originating summons, it was stated that paragraph 11 of the affidavit in support of the originating summons is correct, save that, the referred Constitution, Exhibit A, is not the current Constitution of the Union. In effect, paragraph 5 of the counter-affidavit agreed that the CNULGE 2005 was the Constitution under which the claimants assumed office. In paragraph 6 of the counter-affidavit, the defendants reacted to paragraphs 12, 13, & 15 of the affidavit in support of the originating summons, and stated the depositions contained therein were correct.

In essence, there is no dispute on the depositions contained in paragraphs 10-13 of the affidavit in support of the originating summons. The only dispute is with regard to whether the CNULGE 2005 is still the current Constitution of the union. So, it is settled that the CNULGE 2005 was valid as at the time the election, which ushered in the claimants, were conducted till the time they assumed their offices and till the time of elongation of their tenure in Akure as at 13th October 2016. This is more so, when Exhibit B, which forms part of paragraph 13 of the affidavit in support of originating summons, which is stated to be correct in paragraph 6 of the counter-affidavit of the defendants, stated clearly in its 2nd paragraph that: “The Conference in sessions suspended Rule 13 vi(a) of the 2005 Constitution of NULGE until the expiration of the tenure renewed”. This shows plainly that everything up till that 13th October 2017 was done under the CNULGE 2005.By paragraph 25 of the affidavit in support of the originating summons, the letter of suspension,Exhibit D [the cause of action herein], is dated 6th September 2016. In the counter affidavit of the defendants, it was stated at its paragraph 18 that paragraph 25 of the affidavit of the claimants is correct, meaning that, there is no dispute on Exhibit D. So, when exactly did the CNULGE 2016 come into existence between 13th October 2016 and 31st December 2016? There is no answer to this.

The issue of whether the CNULGE 2016 is in existence is one of hot dispute between the parties. It behooves the party who relied on it to establish the circumstances of its coming into operation and when exactly it came into operation. Failing in this respect, the Court would have no option other than to hold that it is a cooked up document that only exits in the fabrication of the defendants. By the depositions in the counter-affidavit of the defendants, it is clear that the defendants are blowing hot and cold on the issue of which constitution is applicable to this action. If the defendants still relied on CNULGE 2005 as at 13th October 2016, that is, after the cause action arose on 6th September 2016, then, how come they could brazenly challenge the validity of CNULGE 2005?They are just simply inconsistent and self-contradictory on this issue and as such, could not be believed –see Onwunalu & Anor. v. Uche & Anor. (2009) LPELR-8274 (CA) 35, paras. A-B.

Now, section 29(1) of the Trade Unions Act, [TUA] CAP. T14, Laws of the Federation of Nigeria 2004 [LFN] provides, and I quote:

“Subject to this section, a trade union may alter its rules by any method of doing so provided for by its rules, but no alteration of the rules of a trade union shall take effect until the alteration is registered.”

 

By the provision of TUA quoted above, it is certain that the Constitution of the NULGE is a quasi-statutory enactment or enjoys statutory flavour, as it must receive the blessing of the Registrar of Trade Unions to become effective. The question arises, when, within the very short period of 13th October 2016 to 31st December 2016, was the CNULGE 2005 repealed and the CNULGE 2016 substituted? After all, the CNULGE 2016, the date “2016”, which it bears, implies that, it was enacted and came into effect in 2016. No other date of commencement is indicated in the CNULGE 2016. Even if CNULGE 2016 took effect in 2017, which has not been argued, the lacuna remains the same. And if made in 2017 after the cause of action arose, it would be affected by the doctrine that a document made by persons interested after a cause action arose and proximate to the institution of action was made in anticipation of such action, and as such, inadmissible – see Orjiekwe & Anor v. Orjiekwe & Anor. (2012) LPELR-20448 (CA) 66-67, paras. F-A. This action was commenced on 17th November 2017. And if made in 2018, it would be affected by the doctrine that a document made during the pendency of a suit by an interested person is inadmissible – see Orjiekwe & Anor v. Orjiekwe & Anor. (2012) LPELR-20448 (CA) 66-67, paras. F-A [supra]. The defendants in this case are the principal officers of the national union, who must be responsible for the making of the CNULGE 2016 and are presenting it to anchor their defence in the actionfiled against them, hence, CNULGE 2016 is clearly prejudiced and inadmissible; and I so hold.

More so, when was the CNULGE 2016 registered as required by section 29(1) of the TUA, which has been quoted above? It is only when this and other missing factsearlier raised above, are within the reach of the Court, that it could take cognizance of the CNULGE 2016. And the duty to establish these facts is squarely on the defendants who assert the existence of the CNULGE 2016 and not the claimants who denied its existence – see Oscar & Anor. v. Isah (2014) LPELR-23620 (CA) 24, paras. A-B. The fact of the existence of the CNULGE 2016 is peculiarly within the knowledge of the defendants who asserted its existence – see Bamaiyi & Anor. v. Na-Allah & Ors. (2008) LPELR-8640 (CA) 19, paras. E-G.The fact of its registration as enjoined by law is also peculiarly within the ambit of the defendants and has not been supplied. Since all these questions are left unanswered by the defendants, the existence of CNULGE 2016 is seriously in doubt and the Court cannot take cognizance of it.

There is yet another problem that bedeviled the CNULGE 2016. This is that, it contains no abatement clause. Since I have held that the constitution of NULGE is quasi-statutory or enjoys statutory flavour, it follows that, it is liable to the rule that the repeal of an enactment cannot affect any right conferred under the enactment before its repeal nor its previous operation or punishment and penalty incurred thereby, except there is a clear provision to that effect – see section 6(b)-(c) of the Interpretation Act, CAP. 123, LFN 2004. So, the rights and liability, inclusive of penalty and punishment, which accrued to the claimants under the CNULGE 2005, assuming without conceding, that, the CNULGE 2005 was validly repealed, remain sacrosanct, inclusive of the procedure of disciplining members.  In addition, it is settled principle that the law in place as at the time the cause of action arose would govern the determination of the rights of the parties –see West African Examination Council & Ors. v. Ikang (2011) LPELR-5098 (CA) 60-61, paras. G-A. The rules of CNULGE 2005, being in place as at the time the cause of action arose, and being quasi-statutory, would govern the determination of the case.

It is thus clear that the contract between the parties to this suit continues to be governed by CNULGE 2005; and I so hold. It follows that all things purportedly done pursuant to CNULGE 2016 must fail; as you cannot put something on nothing and expect it to stand: it must fall. I hold therefore that, all the actions of the defendants based on the CNULGE 2016 fails, except if justifiable under CNULGE 2005. I now move to issue 2.

 

ISSUE 2:

If the answer to issue 1 is in the affirmative, whether, on a proper construction of the relevant provisions of CNULGE 2005 the claimants are entitled to the reliefs claimed?

 

The answer to issue 1, as could be gleaned above, is in the affirmative. The CNULGE 2005 is valid and subsisting. Now, to go into issue 2, the question of conflict in the affidavits and counter affidavits of parties must first be resolved in relation to the reliefs claimed to enable the Court know the facts on which to base its decision.

First, with regard to relief 1, my take is that this relief, which relates to question 1 of the claimants involving Rule 5(ix) of the CNULGE 2005, which makes the decision of the NEC on the interpretation of the CNULGE 2005 final is inconsistent with the provision of Rule 5(a) & (b) of the CNULGE 2005. Although, Rule 5(ix) comes after Rule 5(a) & (b), which grants a right to approach the Court to members, the intendment of the CNULGE 2005 is very clear that it guarantees fair hearing and treatment to members at all time – see Rule 29(4)(ii) of the CNULGE 2005.

So, Rule 5(ix) of the CNULGE 2005 could not have meant that members would have the right to approach the court and at the same time mean that the court would be precluded from interpreting the CNULGE 2005 with respect to disputes submitted for its adjudication or that it would have to refer matters of interpretation of the CNULGE 2005 back to the NEC for interpretation. It simply meant that the finality of the NEC’s decision on matters of interpretation is with regard to its internal hierarchies and not in relation to the court, otherwise, there would not have been the need to grant members access to court. To this extent, the provision of Rule 5(ix), which is inconsistent with the provisions of Rule 5(a) & (b) and Rule 29(4)(ii), are superfluous, and void to the extent of its inconsistency with the general tenor of the CNULGE 2005. To interpret it as the defendants have wanted, would lead to absurdity and defeat the intendment of the drafters of the CNULGE 2005 – see Mr. Romanus Asimonye v. Mrs. Adora Asimonye (Nee Aniebue) (2009) LPELR-8285 (CA)20-21, paras. A-C and Badiru v. Bisiriyu (1996) LPELR-13803 (CA) 12-13, paras. G-E. Since CNULGE 2005 gave the right to members aggrieved to approach the court, it follows that, any provision, which attempts to take away the powers of the court to perform its functions must be declared inconsistent with the provisions of section 6(6)(b) of the 1999 Constitution, and as such, void to the extent of its inconsistency. So, relief 1 is rightly claimed, and granted accordingly.

I move to relief 2. The grouse of the claimants is that the defendants did not hear the claimants in accordance with Rule 29(4)(ii) before suspending them. How does the Court determine whether or not the claimants were heard as required by Rule 29(4)(ii) of CNULGE 2005? What evidence is required to proof the assertion? Now, the claimants cited Rule 29(4)(ii) as the rule, which the defendants failed to comply with. Rule 29(4)(ii) provides thus:

“Each member should have the right to fair treatment in the application of Union rules and constitution. Trade Unions disciplinary procedures should contain all elements of fair play and the rules of natural justice, that is, notice, hearing and judgment on the basis of evidence. A method of appeal to higher body should be provided to ensure that judgement is not the result of prejudice or bias”. [Underlining mine for emphasis]

 

The underlined portions clearly underscored the fact that the decision of the Union on a case submitted to it must be in writing and the decision must contain a review of the evidence presented before it, showing how this evidence supports its decision. In short, the decision must give cogent reasons for arriving at its conclusion.Apart from this, it is also clear that notice of the allegations against the member be furnished him/her to enable him/her be well prepared for the trial. The claimants tendered Exhibit D,the letter conveying their suspension as the decision of the NEC on the crisis in Imo State, through paragraph 25 of the affidavit in support of the originating summons. Through paragraphs 20-27, the claimants complained that the defendants did not justify the suspension handed over them in accordance with the CNULGE 2005. A close scrutiny of the said Exhibit D failed to reveal any reason given for the decision not to talk of attaching evidence that supports the decision. The defence of the defendants is to be found in paragraphs 12-20 of their counter-affidavit, especially 12, 14, and 15. Paragraph 12 indicated that a petition of financial recklessness was received against the claimants. Paragraph 15 stated that the reason for the suspension was that a case of misappropriation of funds and under-declaration of check off dues were established against the claimants. These conclusions were arrived at, based on a study of the report of the six-man committee set up.

Now, paragraph 14 of the counter-affidavit admitted that no terms of reference was given to the six-man committee. In Exhibit C, the letter of invitation to appear before the six-man committee, no issue of misappropriation and under-declaration of check off dues were raised as the case for the claimants to meet. In fact, from the tone of Exhibit C, it appears to be a reconciliation and peace committee and not an adjudicatory panel. Now, the report of the six-man panel on which the decision of the NEC was based was not tendered by the defendants to justify their assertion that the claimants were found guilty of misappropriation and under-declaration of check off dues. When this scenario is synchronized with the fact that the defendants admitted that no terms of reference was given to the six-man committee and the fact that issues of misappropriations and under-declaration of check off dues were never listed as issues on which the claimants were invited, it follows that, these issues were never discussed in the said meeting; and if they were, it follows that they were an ambush. It has not also been shown by the defendants that the said petition allegedly received against the claimants, and activating the setting up of the six-man panel, that the petition was ever served on the claimants and that the petitioner was invited to confront the claimants and made himself available for cross-examination. So, it follows that, even if the report of the six-man committee were exhibited, it would still not avail the defendants. In whatever way one views it, it is very clear that the claimants were not given fair hearing in accordance with the provisions of Rule 29(4)(ii) of the CNULGE 2005 which secured the rules of natural justice, rendering the decision reached fundamentally defective – see Obiageli v. Federal College of Education (FCE) Zaria & Ors (2014) LPELR-24010 (CA) 34-35, paras. F-B, where it was held that:

“It is now trite that it is not every failure to follow a laid down procedure or rules that will automatically affect the decision of any court or tribunal or body exercising judicial or quasi judicial function…Therefore any mere irregularity that does not affect a party’s fundamental right to be heard or that has not resulted in a substantial injustice against a party will not be disturbed, not even on appeal. However, where the right of a party before any court or body empowered to exercise judicial or quasi judicial function is fundamentally affected by failure to follow the stipulated procedure or rules and or that failure has occasioned a miscarriage of justice against a party, this court will surely set aside the proceeding and the decision arrived at”.

 

It would be observed that the allegations against the claimants and on which the decision to suspend them were purportedly based are allegations of serious crimes.In Dongtoe v. CSC, Plateau State (2001) LPELR – 959 (SC) at 34 – 35, paras. E – G, the Supreme Court held and I quote:

“It is well settled that where there is an accusation of the commission of criminal offences, the burden of proof to be established by the accuser before a criminal tribunal established by law is that the commission of the offence has been proved beyond reasonable doubt. There is no doubt that an administrative body cannot usurp the constitutional function of the courts by making a finding of guilt in such cases. However, where there is an admission of guilt, the question of establishing the legal burden of proof no longer arises, and no burden of proof rests on the accuser, the burden of proof having been discharged by the admission of the accused”.

 

It is clear that the purported six-man committee, if it made any such findings, had usurped the power of courts of law to adjudicate accusation of crimes and that of the police to investigate same, and in doing these, the rules of natural justice, which the CNULGE 2005 made mandatory were trampled without regard; there being no deposition that the claimants accepted the commission of the crimes in question. So, relief 2 is rightly claimed and succeeds.I now move to relief 3.

I need not waste too much time on relief 3. It seems to be a corollary to relief 2. Logically speaking, if the suspension of the claimants is wrongful and unlawful, it follows that relief 3, which raises the issue of continuous extension of the tenure of the 4th-6th defendants/members of the caretaker committee constituted to supplant the claimants, must be granted too. Why? This is because, if the 1st-3rd defendants, or the NEC wrongfully and unlawfully suspended the claimants, then, it axiomatically follows that the NEC and the 1st-3rd defendants illegally installed the members of the caretaker committee in the first instance. And if this is so, the NEC and the 1st-3rd defendants cannot legally extent the illegal tenure of the members of the caretaker committee. In the eye of the law, the caretaker committee never existed. The maxim holds: you cannot put something on nothing and expect it to stand. It would not stand. It must fall. The fulcrum of the existence of the 4th-6th defendants, having been pulled down, the 4th-6th defendants must fall with it.I therefore grant relief 3 as claimed.Relief 4, which is alsoa corollary to relief 2, is also granted.

As to relief 5, it is also a corollary to relief 2. If the suspension is declared illegal, null and void, it follows that the claimants, who in the eye of the law remain in office, must be entitled to all their allowances and bonuses. Besides this, I take cognizance of Rules 26 and 27(vi)-(vii) of the CNULGE 2005. Rule 27(vi) gives the NEC power to fine, suspend, and expel erring members. Rule 27(vii) specifically states that expelled members shall forfeit all the rights and privileges of membership. By this Rule, the doctrine holds that what is expressly mentioned excludes those not mentioned –Adaoha Ugo-Ngadi v. Federal Republic of Nigeria (2015) LPELR-24824 (CA) 21 paras. B-D.I have checked Rule 26 and observed that it makes the payment of allowances and bonuses to elected and non-elected members subject to the discretion of the NEC. But since the claimants were irregularly suspended from office by the fault of the defendants and unelected caretaker committee members made to supplant them illegally, it only follows that the defendants must not be allowed to benefits from their wrong doing by exercising their discretion not to pay the claimants the allowances and bonuses they would have been entitled to, had they not been illegally suspended – see the Administrators/Executors of the Estate of Gen. Sani Abacha v. Eke-Spiff & Ors. (2009)LPELR-3152 (SC) 44-45, paras. A-D. In line with the above reasoning, relief 5 is rightly claimed and accordingly granted. I now move to relief 6.

Relief 6 is concerned with the attempts to conduct elections into the offices of the claimants during the pendency of this action. One, following my holding on relief 2, relief 6, which is, in a way, also a corollary to relief 2, signifies that the defendants would lack the vires to conduct elections to fill the posts of the claimants or replace the executive of which they were members before the suspension. Besides, if any such election was conducted during the pendency of this action, such an election would amount to contempt of the Court and executive rascality liable to be set aside – see Chief Innocent Iwuji & Ors. v. Governor of Imo State & Ors (2014) LPELR-22824 (CA) 32-34, paras. F-C. Besides, I have checked the provisions of the Rules 2(vii) and 29(13) of the CNULGE 2005 and observed that the defendants failed to comply with the procedures geared towards ensuring free and fair election. For this reason also,relief 6 is rightly claimed: and is hereby granted.

Having granted all the declarative reliefs sought, it follows that the corollary orders to the declarative reliefs, which give the declarative reliefs flesh and life must be granted. I therefore grant the orders contained in reliefs 7, 8, 9, 10, & 11. Relief 12 is not granted. In view of the fact that I have granted reliefs 7 & 8, which reinstated the claimants into their offices with full payments of what they would have been entitled to had they not been unlawfully and illegally suspended; they claimants,seemed to me, therefore, not to be further entitled to damages. To grant damages again would amount to double portions or compensations – see Zenith Plastics Industry Ltd v. Samotech Limited (2007) LPELR-8260 (CA) 33-34, paras. G-C.

In Adelakun v. Oruku (2006) LPELR-7681 (CA) 28, para. A, the Court of Appeal held that: “costs normally follow the event. A successful party in any event is entitled to his costs”. In line with the above, I order costs of N100,000.00 [one hundred thousand naira] only against the defendants in favour of the claimants.

The claimants are to be reinstated with immediate effect, while the monetary aspects of the judgment are to be complied with within three months next; failing, which the monetary aspects would begin to attract an interest of 10% per annum until the debts are fully liquidated.

 

 

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

OWERRI DIVISION

NATIONAL INDUSTRIAL COURTOF NIGERIA

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