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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Judge Hon. Justice 0. A. Obaseki-Osaghae Judge DATE: July 22, 2010 SUIT NO. NIC/EN /08/2009 BETWEEN 1. Mr. Emmanuel E. I. Irabor 2. Dr Patrick 0. Okolo 3. Mr. Henry A. Akirmibosun (For themselves and on behalf of members of Academic Staff - Claimants Union of Universities, University of Benin Congress excluding those who do not support this suit. AND 1. Dr K. O. Ilavbare 2. Mr. Idaevbor Bello 3. The Academic Staff Union of Universities (ASUU) - Respondents 4. National Executive Council (NEC) of the Academic Staff Union of Universities REPRESENTATION M. 0. Iguodala, for the claimants 0. K. Salawu, for the respondents RULING This is a notice of preliminary objection by the respondents dated and filed on the 20th January 2010 praying this court “that the entire appeal be dismissed for lack of jurisdiction”. The grounds of the objection are as follows: 1. That the claimants are suing on behalf of a non juristic person. 2. That the Academic Staff Union of Universities of Benin Congress is not registered union and not a juristic person. 3. That the claimants do not have the locus standi to institute this action. 4. That the claimants in this suit are vague and could not be ascertained. The claimants had filed a complaint against the respondents in this court seeking for the following reliefs: 1) A declaration that the 1st and 2nd respondents have been duly and validly removed as Chairman and Secretary of the Executive Committee (EXCO) of the Academic Staff Union of Universities (ASUU), University of Benin in accordance with the Academic Staff Union of Universities Constitution of 2006 as amended. 2) A declaration that the recognition of the 1st and 2nd respondents by the 4th respondent vide its resolution of the 5th and 6th December, 2009 as legitimate officers of the EXCO in the University of Benin is illegal, unlawful and contrary to the Academic Staff Union of Universities (ASUU) Constitution of 2006 as amended. 3) An order of this Court setting aside the 4th respondent’s resolution of 5th and 6th December, 2009 recognizing the 1St and 2nd respondents as the legitimate officers of the EXCO, University of Benin. 4) An order of perpetual injunction restraining the 1St and 2nd respondents from parading themselves as Chairman and Secretary of the Academic Staff Union of Universities, University of Benin. 5) An order of perpetual injunction restraining the 3 and 4th respondents from recognizing the 1st and 2nd respondents as legitimate officers of the EXCO in University of Benin. The respondents counsel contended that the Academic Staff Union of Universities (ASUU) University of Benin congress is not a registered trade union as provided in section 1 of the Trade Unions Act Cap T14, LFN 2004. That the only union that is registered is the 3t respondent, the Academic Staff Union of Universities; and consequently the claimants’ action on behalf of a non-existent body robs this court of jurisdiction to entertain this action because it goes to the issue of misjoinder of parties. He cited Amuda v. Ajobo [1995] 7 NWLR (Pt. 406) 170 at 182 and The G. 0. C. v. Fakayode [1994] 2 NWLR (Pt. 329) 744 at 761. The respondents’ counsel submitted that where there is a misjoinder of parties the jurisdiction of the court is ousted, citing G. 0. C. v. Fakayode, supra. He submitted further that the 4th respondent is not a juristic person as it is not a registered trade union and that joining the 4th respondent as a party in this action goes to the issue of a misjoinder of parties and so ousts the jurisdiction of this court to entertain the action brought by the claimants. He urged the court to strike out the case for want of jurisdiction and misjoinder. Counsel then informed the court that he was abandoning ground 3 of the objection. In reply, counsel to the claimants submitted that the preliminary objection is incompetent and grossly misconceived. That the parties to a suit and the court are bound by the notice of preliminary objection and the grounds so stated in the notice. He drew the court’s attention to the fact that the preliminary objection is predicated on an appeal that is pending as stated in the notice. That the grounds of the objection are points of law to which parties are bound, and that the point of 1av dealing with misjoinder of parties is not clearly stated in the objection; therefore the claimants are taken h surprise and the objection must, therefore, fail. He argued that rounds 1, 2 & 4 of the objection are points of law that require facts to sustain them and as such they cannot be properly raised at this stage. Counsel submitted that where a court establishes that a party to an action is not a juristic person, the proper order is an order striking out the name of the party from the suit. He cited Nkpornwi v. Ejime [2009] 9 NWLR (Pt. 1145) 131 at 179 CA. That ASUU University of Benin congress is merely an indicator to make clear the part of the union that is aggrieved. That ASUU is sued as a parent body and as the 3rd respondent, counsel argued that in determining whether there is a misjoinder of parties and the jurisdiction of a party in a suit, the court is enjoined to look at the totality of the claimant’s relief and the statement of facts before the court. He submitted that the claimants are juristic persons because they are natural individuals; specifically, three named individuals suing for themselves and on behalf of unnamed members of a congress who are clearly ascertainable as parties. He referred to the Black Dictionary 8th Edition at page 1005 for the meaning of the operative word ‘members’ and referred to the case of Balonwu v. Government of Anambra State [2009] 18 NWLR Pt. (1172) 13 which was a representative action in which a similar format as in this case as used. He also cited the case of Ndulue v. Ibezim [2002] 12 MJSCN 150 at 162 D – F for representative action relating to unnamed parties. The claimants’ counsel then went on to submit that the 4th respondent has not been misjoined and is a proper party to this action. That this is so because the claimants have shown in their reliefs 2, 3 and 5 of the complaint, that the 4th respondent is shown to be directly fixed with rights, interests and obligations arising from the controversy or ease of action upon which the court will render a final decree. Arguing further, he sub: that the 4th respondent is a juristic party falling within the exceptions because by a statute and the rules emanating from the exercise of statutory power relying on Government of Kwara State v. Lawal [2007] 13 NWLR (Pt. 1051) 347 at 379. Counsel to the claimants submitted that should the court find that any of the parties to this action is not juristic or has been misjoined, the court should strike out the party said to be misjoinder and not the suit, citing Adefarasin v. Dayekh [2007] 11 NWLR (Pt. 1044) at 121 CA. He also referred to the case of G. 0. C. v. Fakayode, supra which was by the respondents’ counsel and submitted that the ratio relied on by counsel respondents is actually an obiter which did not arise from the judgment of the court. That the case of Adefarasin v. Dayekh, supra, should as a later authority, be seen as superseding the earlier authorities cited by counsel to the respondents. He also referred Ogbebor v. INEC [2005] 15 NWLR (Pt. 948) 376 at 398 — 399 Ratio 4. He finally urged the court to dismiss the preliminary objection. Replying on points of law, the respondents counsel submitted that the case of Balonwu v. Government of Anambra State cannot be an authority to support of the issues before this court as the issues raised in that case are different from the issues in this instant case and a court cannot go outside the issues that are between the parties. He finally submitted that the 4th respondent is not a juristic person having not been created by a statutory enactment. He urged the court to strike out the suit for being incompetent. We have carefully considered the submissions of counsel to the parties and all the authorities cited. The issues to be resolved are (i) whether the notice of preliminary objection that is predicated on a pending appeal is competent and (ii) whether the Academic Staff Union of Universities (ASUU) University of Benin Congress (on whose behalf the claimants are suing) and the National Executive Council (NEC) of ASUU (the 4th respondent) are juristic persons who can sue and be sued. On the issue whether the preliminary objection is competent given that it is predicated on a pending appeal as stated on the face of the preliminary objection, we note that there is no appeal anywhere in the case file upon which the objection can be said to be based. Consequently, the preliminary objection is outrightly incompetent and we so hold. However, assuming there was in fact an appeal pending, the respondents raised other issues. To the respondents, the three claimants are natural persons who are suing in a representative capacity for themselves and on behalf of other members of ASUU, University of Benin congress excluding those who do not support the suit. It is trite law that natural persons such as the claimants may sue and be sued in their names as they are juristic persons. Non-legal persons or entities cannot sue or be sued except where such right to sue or be sued is created and/or vested by statute. Certain unincorporated Associations such as registered trade unions have been granted the status of legal personae. See Iyke Medical Merchandise v. Pfizer [2001] 10 NWLR (Pt. 722) 540. The Academic Staff Union of Universities, the 3rd respondent, is one of such unions granted the status of legal personae. The claimants represent ASU1J University of Benin Congress. The National Executive Council of ASUU, the 4th respondent, is a creation of the constitution of ASUU. Rule 5(ix) of the constitution provides as follows: The government of the union shall be vested in the following: (a) The National Delegates Conference (b) The National Executive Council (c) The Branches. The 3rd respondent ASUU has already been clothed with legal personality by the law. One of the bodies through which it carries out its functions is the 4th respondent who has been expressly named in its constitution. It is our view that the 4th respondent’s legal personify to sue and be sued flows directly from the ASUU constitution as it is recognized by that name. See Fawehinmi v. NBA No. 2 [1989] 2 NWLR (Pt. 105) 558. It is our view that the 4th respondent has been properly joined. This court has held in several cases that branch unions or unit chapters of unions have the right of audience in this court. See Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 decided on May 8, 2007 and Oyo State Government v. Alhaji Bashir Apapa & ors unreported Suit No. NIC/36/2007 delivered on October 3, 2007, RTEAN Oshogbo Osun State v. NURTW Osogbo Osun State unreported Suit No. NIC/33/2007 delivered on May 14, 2008. It is unreasonable to expect that parent unions will at all times be made parties to a dispute when they are not in any way concerned with it. Branch unions or unit chapters negotiate with employers independent of the parent unions and so we do not see any reason why members of ASD1J, University of Benin congress should not sue independently of the parent union. We agree with the submission of the claimants’ counsel that University of Benin congress is merely an indicator to make clear the part of the union that is aggrieved. The argument of the respondents’ counsel in this regard, therefore, fails. Furthermore, the respondents made an issue of the fact that the claimants are suing on behalf of members of Academic Staff Union of Universities, University of Benin Congress excluding those who do not support this suit. That, by excluding those who do not support this suit without indicating who these are, the suit is incompetent and so should be struck out. In reply, the claimants cited Balonwu v Government of Anambra State, supra, to show that a similar format was used in that case. Although, the respondents sought to distinguish Balonwu from the instant case, we agree with the claimants that that there is no problem with the format they used in filing this suit. The respondents’ objection in that regard is accordingly rejected. For all the reasons stated above, this preliminary objection fails in its entirety and is hereby dismissed. The matter shall proceed to hearing. We make no order as to costs. Hon Justice B.B Kanyip Presiding Judge, Hon. Justice V.N Okobi Judge, Hon Justice O. A Obaseki-Osaghae Judge