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BEFORE THEIR LORDSHIPS Hon. Justice B.B. Kanyip Presiding Judge Hon. Justice V.N. Okobi Judge Hon. Justice O.A Obaseki-Osaghae Judge DATE: June 17, 2010 SUIT NO. NIC/LA/06/2010 BETWEEN 1. Medical and Health Workers Union of Nigeria (MHWUN) 2. Comrade Femi Adebisi Chairman, Osun State MHWUN 3. Comrade Johnson Oyelade Vice-Chairman, Osun State MHWUN 4. Comrade (Alhaja) Sherifat O.Akanbi Treasurer, OsunState MHWUN 5. Comrade I. O Olukutan Auditor, Osun State MHWUN 6. Comrade R.S Alade Trustee, Osun State MHWUN 7. Comrade Tajudeen Animashaun, Publicity Secretary, Osun State MHWUN - Claimants AND 1. Comrade G.O Oyebode 2. Comrade Wemimo Olowokere 3. Comrade Kola Oriowo 4. Comrade Samson A. Popoola 5. Comrade (Alhaja) Aolat Rabiu 6. Comrade M.O Muraina 7. Comrade H.F Ogunbambi 8. Comrade Silifat O. Salawu 9. Attorney-General of Osun State 10. Head of Service, Osun State 11. Osun State Hospitals Management Board - Respondents REPRESENTATION Chief G.Adetola-kaseem, SAN, and with him is Miss O.Onabowale, for the claimants. M.O Agboola, for the 2nd and 3rd respondents. Jide Obisakin, Chief State Counsel, Ministry of Justice Osun State, for the 9th – 11th respondents. RULING The claimants took out a complaint dated and filed on March 2010 against the respondents praying for the following relief’s — 1. A declaration that the election of the 2nd to 7th claimants as officers and members of (The Osun State Executive Council of the claimant union at the Osun State delegates Conference of Medical and Health Workers Union of Nigeria (MHWUN) held at on 10th December 2009 is in accordance with the provision of Rule 10 of the constitution of the union and, therefore, valid. 2. A declaration that 1st to 8th respondents are not officers of the MHWUN, Osun State Council having been elected as such officers at a duly convened State delegates Conference as provided in Rule 10 of the constitution of the union or at any other recognized forum of the union and the caretaker committee of the union to which the 1st to 8th respondents have constituted themselves is alien and unknown to the constitution of the MHWUN. 3. A declaration that the Osun State Council of the MHWUN comprising the 2nd to 7th claimants and other officers provided in Rule 11 of the constitution of the union is entitled to official recognition by the Osun State Government and all its organs, functionaries and agencies. 4. A declaration that it is wrongful of the Osun State Government, its organs, functionaries and agencies to accord recognition to the 1st to 8th respondents as caretaker committee which is alien and unknown to the constitution of the MHWUN and to he dealing with and be paying check-off dues deducted from the salaries of members of the union in the employment of the Osun State Government and its agencies to the 1st to 8th respondents who are not elected officers of the union. 5. An order of injunction restraining the 1st to 8th respondents from further parading themselves as officers of the MHWUN and from further collecting check-off dues all or any organization or institution in Osun State where members of the MHWUN are employed. 6. An order of injunction restraining the Osun State Government or any of’ its agencies further dealing with or paying check off dues to the 1st to 8th respondents on behalf of the MHWUN. 7. An order of injunction compelling the Osun State Government and all its organs and agencies who employ members of the MHWUN to pay check-off dues deducted from the salaries of such workers to the registered office of the union as provided in section 16A of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act 2005 or directly to the Bank account of the union at Skye Bank Plc, Osogbo Branch, Account No. 202 I 770002336 henceforth. 8. An order of injunction compelling all the respondents hereof jointly and severally to render an account of all the check-off dues paid to or collected by the 1st to 8th respondents hereof or any of them from October 2009 to date and pay over such sums to the coffers of the MHWUN at its registered office as provided in section 16A of the Trade union Act Cap. T14 LFN 2004, as amended by the Trade Union (Amendment) Act 2005 or pay over such sums to the Bank Account of the No. 2021770002336 at Skye Bank Plc, Osogbo Branch. The claimants had earlier through a motion ex parte dated 10th March 2010 but filed on 11th March 2010 prayed against the respondents, which were not granted. The claimants were asked to put the respondents on notice regarding its motion on notice dated 10th March 2010 but filed on March 2010. The said motion on notice is though pursuant to sections 16 and 19 of the National Industrial Court (NIC) Act 200, (11 Rules I and 2 to the NIC Rules 2007 and the inherent jurisdiction the court. by time motion on notice, are praying for three reliefs, namely- 1. An order of interlocutory injunction restraining the Osun State Government or any its organs and agencies represented by the 9th to 11th to respondents hereof from further dealing with or paying check—off dues to the 1st to 8th respondents on behalf of the MHWUN, the 1st claimant hereof, henceforth pending the hearing and determination of this action. 2. An order of interlocutory injunction restraining the 1st to 8th respondents herein further collecting check—off dues from all or any organization or institution in Osun State where members of the MHWUN are employed henceforth pending the hearing and determination of this action. 3. Any such further or other order or orders as this court may deem fit to make in the circumstances. The motion on notice is supported by a 4—paragraphed affidavit sworn to by one Ibrahim Abiodun Anifowoshe, a Litigation Executive in the chambers of the claimants’ counsel. Annexed to the affidavit are 12 exhibits, Exhibits IAA.1 —— IAA. 12. In orally moving their motion on notice, learned SAN, counsel to the claimants, first urged the court to note that there is no counter—affidavit or any other process filed in opposition to time said motion on notice. That this yields to the conclusion that the contents of the affidavit in support of the motion are deemed to be admitted as correct by the respondents. Moving in terms of the motion papers, learned SAN then went on to urge the Court to grant the reliefs sought in the motion because they are designed to preserve the which is the checkout dues of the claimant pending when the court will determine the appropriate person(s) to collect the check—off dues on the merit of the case. Counsel to the 2nd and 3rd respondents in his reaction urged the court not to grant the application, submitting in the process that before the court can make the order sought, there should be in the record of the court adequate proof that the originating processes have been served so as to vest the court with jurisdiction over the parties so served. Counsel then the court to Order 7 Rules 1, 8 and 12 of the NIC Rules 2007. Counsel continued that the 1st to 8th respondents, particularly the 2nd and 3rd, were sued personally and not and so leaving the originating processes in their outer will not satisfy the provision of order 7 Rules I and 8. That any process server must comply with order 7 Rule 12. Counsel concluded by submitting that presumption of service will only arise when service is done by registered post under Order 7 Rule 2 and not when the process server happens to be a courier company. That service of process is fundamental and goes to the juried id ion of the court and not the quality of the adjudication. Counsel then urged the court to refuse the application for absence of proof in view of the constitutional provisions of fair hearing or at least order the claimants to show that there is proof of service in the case file. Counsel to the 9th to 11th respondents adopted the submissions of counsel to the 2nd and 3° respondents. Additionally, counsel to the 9th to 11th respondents then submitted that as a matter of law, the constitution of the MHWUN specifically in Rule 28(5) enjoins that internal remedies to resolve conflicts should he exhausted before recourse to this court. In particular, that the provision is a conflation precedent to this court assuming jurisdiction. Counsel then urged the court to refuse the application. In reacting on points of law, learned SAN submitted that, regarding the submissions on Rule 28(5) of’ the constitution of MHWIJN, it is inappropriate at this stage of the proceedings given that there is no preliminary objection before this court as to the competence of the present action. More importantly, that the claimant is the union itself. It is the party claiming against the wrongful payment and collection of its revenue by the respondents. Learned SAN then referred the court to paragraph 3(d, e, f and g) of the affidavit in of the motion and exhibit IAA.2, which show that in spite of the fact that it is the union that is wronged by the act of the respondents, the union still went out of its way to convene a reconciliatory meeting with the representatives of the 2nd to 7th claimants and the 1st to 8th respondents before it conducted the election that brought forth the 2nd to 7th claimants as the legitimate officers of the 1st claimant. On the submissions of counsel to the 2nd and 3rd respondents, learned SAN submitted that Order 7 Rule 1 regarding service of process by the claimants has been complied with and so there is no cause for complaint by any of the respondents. That Order 7 Rule I is different in content and application to the provisions of other courts regarding personal service. Consequently, that the authority that says personal service must be made before jurisdiction is assumed is inapplicable in this court. The learned SAN, Order 7 Rule 1(2) is not limited to service by registered post as contended by the counsel to the 2nd and 3rd respondents. That ‘post’ as postulated in the Rule covers all manner of posts including courier service. In any event, that this court has granted leave ex parte to the claimants to serve the originating and all other processes by courier on the respondents as the court is entitled to do under Order 7 Rule 1(3). That in any case, the pubescence of learned counsel on behalf of his clients is conclusive proof (lint those clients have been properly served with the processes of court. That counsel has not in any event filed conditional appearance to protest irregular or improper service. Finally, learned SAN submitted that the fair hearing principle under the Constitution does not postulate that a party must he heard in any event before the proceeding can he valid. That it is enough if a party is given an opportunity to be heard. In the present case, that all parties have been given the opportunity by being served with the processes. Learned SAN then urged the court to discountenance the arguments of the opposing counsel in this application for interlocutory injunction. A careful look at the issues will reveal that learned SAN, counsel to the claimants is seeking for interlocutory injunctions against the respondents pending the determination of the substantive matter before the court. By section 16(1) and (2) of the NIC Act 2006 this court may grant an injunction in all cases in which it appears to the court to be just or convenient so to do, and such order may be made either unconditionally or on such terms and conditions as the court thinks just. And by section 9 of the same Act, this court may in all cases and where necessary make any appropriate order, including among others the grant of urgent interim reliefs. It is under these provisions that the claimants have applied for the grant of interlocutory injunctions against the respondents. In the substantive suit, the claimants are seeking for declaratory and injunctive orders against the respondents. The complaint of the claimants is that the respondents are acting as officers of the 1st claimant when in fact the 2nd to 7th claimants are the proper and appropriate officers validly elected to so act. While this issue is pending resolution, the claimants have applied for interlocutory injunctions against the payment and receipt of check-off dues meant for the 1st claimant to anyone. In order words, the claimants want the payment of check—off dues to be suspended until the substantive matter in this suit is resolved. The main argument of the counsel to 2nd and 3rd respondents and adopted by the counsel to the 9th to 11th respondents is that the respondents were not served the originating processes in this case and so this court cannot grant any order against the respondents until the issue of service is resolved. The question that arises, therefore, is whether the respondents have been served with the originating processes. In the first place, we agree With the submission of the learned SAN that the fact that the 2nd, 3rd and 9th to 11th respondents are represented by counsel in court means that there were actually served; and that the interlocutory injunction sought are in the main directed at the 9th to 11th respondents. As regards the other respondents, there is the need to ascertain whether they have been served the originating processes. From the records of this case, this court at its sitting of April 22, 2010, granted ex parte a prayer of the claimants to serve the originating processes by courier. This was done and there was no report from the courier company indicating any returned mail. The presumption, therefore, is that there was service. Service of processes is regulated by Order 7 of the NIC Rules 2007. In Rule 1, the said Order provides as follows — (1) Any notice or other document required or authorized by these Rules to be served on, or delivered to any person may he served on that person personally by registered post or courier or left at that person’s address for service or, where no address for service has been given, the registered office, principal place of’ business or last known address, and any notice or other document required or authorized to be served on, or delivered to the court may he sent registered or courier or delivered to the Chief Registrar. (2) A document served by post shall be presumed, in the absence of evidence to the contrary, to have been delivered in the normal course of post. (3) The Court may direct that service of any document he dispensed with or he elected otherwise than in the manner prescribed by these Rules. The point to note about this provision is that personal service is one of several modes of service, not the primary mode as may be found in the rules of practice and procedure oh at her courts. So the rule that personal service midmost first be mimed which obtains in other courts is inapplicable in this court given the rules of this court. Personal service or service by courier commands the same status and have the same effect as the as the rules are concerned. The 2nd and 3rd respondents raised the argument that the presumption of service will only arise when service is done by registered post under Order 7 Rule 2 and not when the process server happens to he a courier company. But by this Rule 2, to be a process server, the President of the court must specifically appoint the courier company to he such process server. It is when this happens that the courier company will become duty bound under Rule 2 to depose to an affidavit of service. Simply because the President of the Court via an ex parte hearing ordered service to be by courier does not amount to appointing that courier company that effected the service as a process server. This is because of this court can when hearing cases order that service be made by courier. This cannot translate to appointing the courier company as a process server. The power to so appoint is presidential, to be performed by the President of the Court when acting in that capacity. In the words of Order 7 Rule 2(l) — Service of originating process shall be made by a Sheriff, Deputy Sheriff, Bailiff or other officer of the Court. The President of the Court may also appoint or any other person to serve court processes and such person shall be called process server (the emphasis is ours). As can he seen, therefore, the power to appoint a courier company as a process server has to be specifically done as such and only by the President of the Court. So far, this has been done by the President of the Court. The argument of the 2nd and 5th respondents that the presumption of service only arises when service is done by registered post cannot, therefore, hold given that service by courier has time same effect as service by registered post. They are both avenues of assured service of documents among other things. The truth of the matter is that both the registered post (public sector post) and courier (private sector post) are all regulated by the same regulatory agency, NIPOST. We agree with the submission of the learned SAN that ‘post’ as postulated in the Rules covers courier service. Having and so held that the originating processes were served on the respondents, this means that they were given the opportunity to defend themselves in this application the interlocutory. If they declined to utilize the opportunity, they cannot complain that their right to fair hearing has been denied. Service according to the Rules of this court has been appropriately effected. Having resolved the issue of service of the originating processes, what remains is whether to grant the prayers of the claimants. The substantive matter deals with the issue of who appropriately is an officer of the claimant. The main stay of a trade union is the check-off dues. At the root of the current dispute, therefore, is the question of who has power of control over the check dues meant for the 1st claimant. Only appropriate officers of a trade union have control over check-off dues. So if there is a dispute as to who appropriately are the outliers of a trade union, it may be necessary to order the suspension of the payment of the check—off dues until the substantive matter is resolved. The claimants have made out a case for such a suspension. Accordingly, we hereby grant the application of the claimants for interlocutory injunction in only the following terms — 1. an order of’ interlocutory injunction restraining the Osun State Government or any of its organs and agencies represented by the 9th to 11th respondents from further dealing with or paying check—off dues to the 1st to 8th respondents on behalf of the MHWUN, the 1st claimant, henceforth pending the hearing and determination of this action 2. An order of interlocutory injunction restraining the 1st to 8th respondents from hither collecting check-off dues from all or any organization or institution in Osun State where members of’ the MHWUN are employed henceforth pending time hearing and determination of this action. These interlocutory orders shall operate pending the determination of the substantive matter in this case. Ruling is entered accordingly. _____________________________ Hon. Justice B.B. Kanyip Presiding Judge ______________________ _____________________ Ion. Justice V.N. Okobi Hon. Justice O.A. Obaseki-Osaghae Judge Judge