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BEFORE THEIR LORDSHIPS: Hon. Justice M. N. Esowe - Presiding Judge Hon. Justice F. I, Kola-Olalere - Judge Hon. Justice J, T. Agbadu-Fishim - Judge DATE: NOVEMBER 18, 2010 SUIT NO. NIC/ABJ/02/2010 BETWEEN: 1. CHIEF JOSEPH AGHWEFEADA (Deputy Zonal Chairman/Acting Zonal Chairman PTD, Warri Zone Branch of NUPENG). 2. COMRADE MURPHY OTOIBHI (Vice Chairman, Petroleum Tankers Drivers, Warri Zone Branch of NUPENG) 3. COMRADE AKPOVIRI GERMAN (Secretary, Petroleum Tankers Driver, Warri Zone Branch of NUPENG). - Claimants/Respondents AND 1. COMRADE REV. J. B. ASEMOTA (Vice President, Nigerian Union of Petroleum And Natural Gas Workers, Warri Zone Branch, NUPENG) 2. COMRADE MATHIAS OTE (Warri Union Chairman, PTD Warri Zone Branch of NUPENG) - Defendants/Applicants REPRESENTATIONS. D. O. Duru Esq for the Defendant/Applicants R. O. Irikefe Esq for the Claimant/Respondents RULING This suit was fled in this Court on January 27, 2010 wherein the Claimants claimed thus: (1) A declaration that having been elected as Vice President and/or member of the National Executive Council of the National Union of Petroleum and Natural Gas Workers on 4th December, 2009, the term of office of 1st Defendant as Chairman, Warri Zone of Petroleum Tankers Drivers Branch of Natural Union of Petroleum and Natural Gas Workers - ceased/lapsed with his election a (sic) National Vice President on 4/12/2009. (2) A declaration that the 1st Chairman being the Zonal Deputy Chairman of Warri Zone of Petroleum Tanker Drivers, is the Zonal Chairman of Warri Zone of Petroleum Tanker Drivers on cessation of office of 1st Defendant as Zonal Chairman of Warri Zone of Petroleum Tanker Drivers Branch of Nigerian Union of Petroleum and Natural Gas Workers. (3) A declaration that the 1st, 2nd and 3rd Claimants having been elected into office Zonal Deputy Chairman, Zonal Vice Chairman and Zonal Secretary respective Warri Zone of Petroleum Tankers Drivers Branch of NUPENG on 11th April, 2007 tenure of office extend to 10th April, 2011. (4) An Order of permanent injunction restraining the 1st Defendant whether by himself, their servants, agent or privies from parading himself as Chairman, Warri Zone Petroleum Tankers Drivers, Branch of Nigerian Union of Petroleum and Natural Gas Workers (5) An Order restraining the Defendants, whether by themselves or individually, their servants, agents, or privies from howsoever taking any step or doing anything capable of having effects of depriving 1st Claimant from acting as Chairman and/or Deputy Chairman, Zone of Petroleum Tanker Drivers, Branch of Nigerian Union of Petroleum and IS Gas Workers until the expiration of Claimants term of office on 10th April, 2011. (6) An Order of perpetual injunction restraining the defendants whether by them; servant, agent, privies or whosoever from preventing the Claimants from performing functions of their respective offices until the expiration of their tenure of office on April, 2011 and/or conducting any election to the offices occupied by the Claimant the expiration of their tenure of office in 2011. The Defendant/Applicant entered appearance on 10/02/2010 and on the 11/02/2010 filed a Notice of Preliminary Objections. On 22/04/2010 however the Defendant/Applicant sought and obtained the Court to file a new Notice of Preliminary Objection, which was accompanied by a written address in support of the Preliminary Objection Both were dated and filed on 30/4/2010, wherein Defendant/Applicants prayed as follows: That the Honourable Court lacks jurisdiction to entertain the entire action and the afc motions inter partis upon the grounds set out in the schedule to this Notice hereunder". 1. This Honourable Court lacks jurisdiction to entertain the Claimants action, as same does not constitute a Trade Dispute. 2. This Honourable Court lacks jurisdiction to entertain the Claimants action in the conditions precedent to an invocation of the jurisdiction of this Hon. Court have not been satisfied. 3. Claimants action is a gross and flagrant abuse of the process of this Honourable Court that by Claimants own admission, there is a case, pending before the High Court of Delta, Effurun in Suit No. EHC/6/2010 between: Comrade Chief Joseph A. Aghwefeada others V. Comrade Rev. J. B. Asemota & anors where the self same Claimants herein Claimants therein, claiming exactly the same reliefs in the High Court of Delta 'E as they now claim before this Court. The Defendants/Applicants filed a written address in support of the Notice of Preliminary Objection March 30, 2010 and filed on 30th April, 2010. The Claimant/Respondents filed a Counter Affidavit paragraphs in opposition to the Defendant/Applicants, Notice of Preliminary Objection and a address in opposition of the said Preliminary Objection in compliance with the consensus of the parties argue this caseon record, and the Court's Order to that effect. In his written address in support of the Preliminary Objection, the Defendants/Applicant formulated three issues for determination to wit:, (a) Whether this Honourable Court has jurisdiction to entertain this matter in th. is not a trade dispute. (b) Assuming but not conceding that this matter is a trade dispute, whether this Honourable Court has jurisdiction to entertain it in that the conditions precedent to the invocation of her jurisdiction have not been satisfied? (c) Whether this suit does not constitute a gross abuse of the judicial process. On the 1st issue, that is to say whether this Honourable Court has jurisdiction to entertain this matter in that same is not a Trade Dispute, learned counsel for the applicant submitted that it is now trite law that in the determination of the subject matter of a suit and the jurisdiction of Court to determine same, it is the Writ of Summons and Statement of Facts, (in this case, the compliant and statement of Facts) that the Court should have regards to and that a collegiate scrutiny of the compliant and Statement of Facts, in this case would reveal that the subject matter of this suit and hence the bone of contention is the disputation of rights to office and/or appropriate time of election into an office of a Branch of a recognized and Registered Trade Union. He submitted then that it is in the complaint and Statement of Facts of the Claimants ONLY and not the deposition of the Defendants in this case that the Court must have resort to, citing the case of Federal Ministry of Commerce and Tourism V. Chief Benedict Eze (2000) All FWLR (part 323) 1704 @ 1723 para E-F and Inegbedion V. Selo Ojemen (2004) All FWLR (part 221) 1445 @ 1458 paras F-G Counsel contended that the subject matter of this action is outside the jurisdiction of this Court. According to the learned Counsel, in the case of Federal Ministry of Commerce and Tourism V. Chief Benedict Eze (Supra) at 1723 - 1724 paras F-A, a Court was said to have the requisite jurisdiction and competence to hear and determine a matter before it in the following instances: a) If it is properly constituted with respect to number and qualification of the membership. b) The subject matter of the action is within its jurisdiction. c) The action is initiated by due process of law, and d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. On (b) above counsel submitted that the issues the claimants have brought before this Court classically do not revolve around what has been described as Trade Dispute and/or on an industrial relationship dispute. In Road Transport Employers Association of Nigeria & Anor V National Union of Road Transport Workers and 5 ors [2005] All FWLR (Part 254) 920 at 930 paras G-H Trade dispute was defined as "any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment and physical condition of work of any person". The same interpretation, he said, was given by the Court of Appeal in Attorney General. Of Oyo State V. Nigeria Labour Congress, Oyo State Chapter and Ors [2003] 8 NWLR Part 831) 1 at 23 paras B-D) To counsel, section 47 Trade Disputes Act Cap 432 Laws of the Federation of Nigeria 1990 (as amended) now section 48 Trade Dispute Act Cap T8 Laws of the Federation of Nigeria 2004 provides that a trade dispute is any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment and physical condition of work of any person and in Attorney-General of Oyo State V. NLC, Oyo State Chapter & 4ors (supra) at part 28 para D-H, the Court further held that for a dispute to be declared a Trade Dispute, within the meaning of Section 48 Trade Disputes Act Cap T8, Laws of the Federation of Nigeria 2004, the following ingredients must all be present. (a) there must be a dispute (b) the dispute must involve a trade (c) the dispute must be between (i) employers and workers (ii) workers and workers (d) the dispute must be connected with: (i) the employment and non-employment (ii) the terms of employment (iii) the physical condition of work of any person. Counsel further submitted that in the same case above, (AG of Oyo V. NLC Oyo State Chapter Supra) the Court of Appeal, in interpreting the said Section 48 of the TDA Cap. T8 LFN 2004 made it absolutely clear that all the condition therein must be present for a Trade Dispute to arise. In the instant case therefore, Counsel submitted that though there is a dispute, the dispute does not involve a trade, neither is the dispute connected with the employment or non-employment of any person; nor the physical condition of work of any person. He therefore urged the Court to decline jurisdiction to entertain this suit in that the dispute fails the test of a Trade Dispute according to law. Counsel urged the Court, on this plank, to strike out the action. On the 2nd issue for determination, learned counsel for the applicant submitted that assuming without conceding that the Applicants are held wrong on their 1st ground of objection that they further contend that the original jurisdiction of this Court cannot be invoked unless under the special circumstances provided for in Part I of tie Trade Disputes Act. In support of this position, counsel urged the Court to consider the following extant and unambiguous provision of the said part I of the Trade Dispute Act. Counsel then reproduced verbatim the provisions of sections 4, 5, 6, 7, 9, 17, and 21 of the TDA 2004. Counsel went on to contend that these provisions of the TDA make it abundantly clear that the original jurisdiction of this Court can only be exercisable under those circumstances in both inter and intra-union disputes (where they actually exist) as an appellate or referred jurisdiction and not original. In other words, Part I of the TDA Supra must be exhausted and satisfied before the intervention of this Court can be sought. Again, only parties to a collective agreement (where such exists) or the Minister of Labour and productivity (under special circumstances) may approach this Court - whether in its original or appellate jurisdiction. In the present case, there is neither a collective agreement nor a ministerial referral. Counsel went on to state that it is only based on the special and exceptional circumstances enumerated in Section 17 of the TDA that the minister (only) is entitled to direct reference to the National Industrial Court, without recourse to Section 17 of the said TDA. In this circumstance counsel submitted that the Claimants have not shown that they have exhausted all the processes prescribed by the law towards amicable resolution of the matter, neither have they established that the action comes within the exceptions anticipated by law which can only be possible if it is referred to the Court by the Minister of Labour, and concluded that the institution of this case before the Court by the Claimants is clearly misconstrued and premature and urged this Court to dismiss same with costs. On the 3rd issue, that is it whether this action does not constitute an abuse of Court (sic) and is thus liable to be dismissed, learned Counsel submitted that the concept of abuse of Court process which is imprecise has been defined as where a party institutes multiplicity of actions between the same parties, over the same subject matter in different Courts. He referred the Court to the case of African Reinsurance Corporation V. SDP Construction Nigeria Limited [2005] FWLR (Part 153) at 270 paras B-D. where the Supreme Court defined abuse of Court process as follows: Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexations or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process as in this case. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. There is said to be an abuse of process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue. (Emphasis supplied by Counsel.) Counsel continued that the jurisdiction of this Court is further ousted as this action constitutes an abuse of judicial processes in that the issues at state here are essentially the same issues on an earlier and still subsisting proceeding in Suit No. EHC/6/2010 between Comrade Chief Joseph A. Aghwefeada & 2ors V. Comrade Rev. J. B. Asemota & ors pending before the Delta state High Court sitting at Effurun and the parties herein are substantially the same as the parties therein. He invited the Court to take judicial notice that the reliefs claimed by the Claimant in the High Court sitting at Effurun., which was annexed to the affidavit in Support of Claimant Motion dated 5th Feb, 2010 and which was filed by their present Counsel who represented them there, are in every detail the same as in the relief the Claimants are seeking in this Court. The Court is entitled to take judicial notice of documents in their possession, he added. To him what amounts to an abuse of Court processes is imprecise but is usually also involves some other deliberateness and mischief by bringing multiplicity actions asking for essentially the same reliefs against the same parties. In the present case, the Claimants, knowing fully well that the case is still pending and has not been extinguished in the High Court of Delta State, Effurun, ran to this Honourable Court to seek the same reliefs against the same defendants, an action, which clearly constitutes a multiplicity of action, giving both Courts the unenviable opportunity to arrive at possible different decisions on essentially the same set of facts. When an abuse such as this occurs, the latter case, such as that in this Court, ought to be dismissed and counsel urged the Court to so hold and accordingly demiss the action, relying on the cases of Chime 7. Onyia [2009] All FWLR (part 480) pg 673 at 695 - 696 paras G-D; Best Western Co. Ltd. V. Udombor [2002] FWLR (pt 97) page 749 at 761 - 763 para F-A; African Reinsurance Corporation V. JDP Construction Nigeria Limited [2003] FWLR (part 153) 251 at 270 para B-D; Christian Outreach Ministries Inc. 7. Cohbam (2006) All FWLR (Part 310) 1675 at 1692 E-H 1693 - 94 paras H-B, 1693 paras D-G. Counsel submitted further that because of the imprecise nature of the concept of abuse of Court process, Courts have been mandated to always watch any proceeding with an eagle eye to detect any abuse of the process so that the exalted citadel of justice may not be dragged in the mud by desperate litigants as the Claimants herein, relying on the authorities of Nwaogwugwm V. President F. R. N. [2007] All FWLR (part 385) page , 151 at 1174 paras D- E. Counsel concluded his submission by urging the Court to hold that in the circumstance, the Court is devoid of the requisite jurisdiction to entertain this action and in doing so, dismiss the action. In their reaction, the Claimant/Respondent formulated an issue for determination by this Court that is whether this Court has jurisdiction to entertain this suit, opting to take the issues formulated by the applicant seriatim and making reference to relevant laws and decided cases as they progress. Firstly, they submitted that applicants Notice of Preliminary objection lacks merit and should be dismissed. On the first ground of objection, namely that it is, the Claimants claim that determines jurisdiction and not necessarily what this Respondents label it, Counsel agreed with the principle, citing the case of Onuora V. K. R. P. C. Ltd. [2005] 6 NWLR (part 921) 393 at 405 paras E-F Counsel further submitted that the jurisdiction of the National Industrial Court is statutory and is set out in section 7(1) of the NICA 2006 and he carefully reproduced the provisions of the said Section 7(1) and (2). According to counsel, a careful reading of the complaint and statement of facts establishing a cause of action of the Claimants discloses the following facts: (a) The Claimants and Defendants are members and officers in various capacity of Petroleum Tankers Drivers (PTD) Warri zone which is a branch of the Nigerian Union of Petroleum and Natural Gas Workers (NUPENG) (b) The activities and condition of the parties in relations to the aforementioned trade union are regulated under and by the constitution of NUPENG and the bye laws of Petroleum Tankers Drivers. More so, that the claims of the Claimants/Respondents relate to: (a) The legality or otherwise of the 1st Defendants refusal and neglect to hand over power and the paraphernalia of office to the 1st Warri Zone of Petroleum Tankers Driver after 1st Defendant elections as a National officer of NUPENG within the meaning of NUPENG constitution and Petroleum Tanker Driver Bye Laws. (b) The validity of the steps, action and or election purportedly taken and or conducted by 1st Defendant after 1st Claimant was elected as National Officer of NUPENG and whose tenure thereby ceased by the such election. (c) The duration of the tenure of office of the Claimants and their rights to remain and function in office until April 10, 2011 as guaranteed by the Petroleum Tankers Driver Bye Laws and NUPENG Constitution. Counsel supplied the relevant provisions of NUPENG and Petroleum Tankers Driver constitutions which grounds the claims of the Claimant as Rule 8(ii) a Rule 13(i), Rule 8(xix) and Rule 36(a) the constitution of NUPENG and Petroleum Tanker Driver is Bye Law which documents are before the Court. In all Counsel submitted that the clear and express provisions of Section 7(1) (c) (iv) of the NIC A 2006 confer this Court with jurisdiction to hear and determine Claimant's action in so far as it relates to the interpretation of the Constitution of a Trade Union citing the case of UMOREN AND AKPAN [2008] 16 NWLR Part 1T, 3 pg 231 para G where the Court of Appeal held that the National Industrial Court has jurisdiction in an intra Union dispute, the subject matter being an argument as to the proper conduct of elections within the Union. (The question for determination in that case was the validity of the union's election by a member of the union) The Court held further that an intra union dispute is an argument or dispute within the unions and rightly the sort of dispute over which this court has jurisdiction. The Court of Appeal further considered the provisions of Section 1(A) of the TDA as amended by decree 47 of 1992 and held that only the National Industrial Court has jurisdiction over inter and intra union dispute Umoren V. Akpan (Supra). Counsel continued his submission by saying that in MADU V. N. U. P. [2001] 16 NWLR part 735 page 350 the Court held that the National Industrial Court is the only Court with jurisdiction where the subject matter in dispute relates to inter or intra union dispute which relates to the dissolution of the executive Committee of the two faction of Nigeria Coal Corporation Branch of Nigeria Union of Pensioners and the setting up of ;m alternative eight man committee which appellants contended was contrary to the constitution of me Union. On this 1st issue, counsel concluded by saying that the subject matter of this suit is properly within the jurisdiction of this court and urged it to dismiss the 1st ground of the Defendant/Applicants objection. On the 2nd ground of the applicant's preliminary objection learned Counsel to the Respondent submitted that the conditions precedent to the invocation of the Courts jurisdiction in this case is contained in Order 3 of the National Industrial Court Rules and not Part 1 of the IDA Cap 432 LFN 1990 as amended. The dispute between the parties not being a trade dispute but the interpretation of a trade union constitution, Part 1 of the TDA (as amended) is inapplicable and Defendants/Applicants argument thereon is misconceived. That S.21 of the TDA cited by the Applicant has been repealed in the TDA LFN 2004. Counsel submitted further that the defendants/applicants had not made any reference at all, in the formulation of their various ground of objection, to the NICA 2006 and NICR 2007; otherwise, they would have discovered that the conditions precedent to the exercise of this Court's jurisdiction had been satisfied. Counsel submitted that it is a common ground between the parties that the suit as constituted is not a Trade Dispute referring the Court to paras 3.1.2 of Defendant/Applicant written Address, S.47 of the TDA and 54 of NICA 2006. The issue in controversy rather is set out in Claimants complaint particularly paras 1, 2, 3, 4, 5, 6, 8, 11, 12 & 13 of the statements of facts establishing a cause of action as the interpretation of the Constitution of NUPENG and Petroleum Tanker Driver vis-a-vis the conduct of the defendants. He reproduced para 3:1.1 thus: A collegiate scrutiny of the complaint and statement of facts would reveal that the subject matter of this suit is disputation of rights to office and or appropriate time of election into an office of a Branch of a recognized and Registered Trade Union. The above summary therefore, to Counsel, shows that since the Claimants claims, is not anchored on Trade Dispute, the Applicants argument on TDA is inapplicable in this suit. Counsel further reproduced the provision of Order 3(i) of the NIC Rules 2007, sub 4 thereto and submitted that the claimants here filed their complaint and statement of fact, list of witnesses and list of every document to be relied upon at the trial of this suit filed on 21/1/2010 at this Court's Registry in Abuja and also the date, time and stamp of the Registry is visible and Claimants have even gone further to file witnesses' statement on Oath and as such that contention of the defendant/applicant the Original jurisdiction of this Court cannot be invoked in inter and intra union disputes (when they actually exist) but only in appellate capacity holds no water. Also their contention that only parties to a collective agreement or the Minister of Labour and Productivity may approach this Court in its original or appellate jurisdiction is groundless and misconceived and Section 7 and 17 of the TDA referred to are inapplicable to the facts and circumstances of this case. (see Umaren V. Akpan & anor supra) and section 7, of the NICA 2007 which provides as follows: The Court shall have and exercise exclusive jurisdiction in civil causes and matters- c) Relating to the determination of any question as to the interpretation of: iv) Any trade union constitution Counsel reproduced Section 7(i) of NICA 2006 and S. 54 of the same act and discussed them at length. He submitted thereafter that Claimants herein have derived authority to approach this Court in it original jurisdiction pursuant to the provisions of S7 of NICA 2006 not S7 and Section 17 TDA. By applicants own argument in para 3.2.1 of their written address the issue of collective agreement or amicable solution referred to in their para 3.2.3 and 3. 24 of the said address arise in a trade dispute situation where "there exist agreed means for settlement of the dispute apart from the act. To Counsel, it is only in such situation that recourse to Arbitration or the Minister of Labour's intervention becomes necessary, beside any law that restricts access to the Court would be unconstitutional and contrary to Section 6 and 36 of the 1999 Constitution. Counsel finally urged the Court to dismiss ground 2 of Applicants objection as lacking merit. On the 3rd ground of Defendant/Applicant Preliminary Objection, which attacks the jurisdiction of this Court to try this matter on the ground that the processes filed by Claimants constitute an abuse of Court processes, Counsel for the Respondents drew the Court attention to the presence, in the Claimant file, of their 7 paragraphed counter affidavit in opposition to this 3r ground of objection which affidavit clearly establishes cleaily that suit No. EHC/6/2010 is non-existing before the High Court of Delta, Effurun. Exhibits A & B attached to the Counter Affidavit he said, are conclusive proof that there is no such pending case, as case No. EHC/6/2010 has since been discontinued and struck out. That grounds of objection by the defendants are therefore baseless misconceived and consequently lack merit. Counsel then urged the Court to dismiss same and all other grounds and to hold that the Claimant Respondent have established that: 1) The subject matter of this suit which is an intra union dispute that borders on the interpretation of NUPENG Constitution and PTD Bye Law is within the jurisdiction of this Honourable Court. 2) The conditions precedent to this Court's jurisdiction in the circumstance of this case are not those set out by the Defendant/Applicants but those contained in Order 3 of the NICR 2007. Besides, the Constitution of the Federal Republic of Nigeria grants unimpeded access to Court, Any other law to the contrary is unconstituted, null and void. 3) There is no suit against the Defendant/Applicants with similar reliefs as those in the suit before this Court pending in the Delta State High Court, Effurun, suit No. EHC/6/2010 had since been discontinued and struck out. The learned Counsel for the Defendant/Applicants replied on points of Law and straight away described the Claimant/Respondents Counter Affidavit to the Applicants Notice of Preliminary Objection as "novel", legally strange and absurd and an attempt to place the parties at unequal footing. The Respondents filed no affidavit to which the Claimants/Respondents can legally file a Counter Affidavit. To him, a Counter Affidavit must legally and factually be in response to an assertive or supporting affidavit. Where the applicant as in the instant case, has filed no affidavit, the party responding cannot file a Counter Affidavit and he urged the Court so to hold, on the provisions of Order 11 Rule 1 of the National Industrial Court Rules 2007 Counsel reminded the Court that it is the originating processes, in this case the complaints/statement of facts, and motion inter partis that determine the jurisdiction of Court and not any subsequent process filed, especially after the Court's jurisdiction based on the originating processes filed have been put in issue. He urged the Court to hold that in the circumstances it is only the complaint/statement of fact and Motion inter partis upon which the jurisdictional challenge rests that the Court can look at in determining this application and accordingly discountenance wholly the Counter Affidavit. He relied on authority of Federal Minis ay of Commence and Tourism V. Chief Benedict Eze (Supra) and Inegbedion V Selo Ojemen Supra Still on the filling of a Counter Affidavit by the Claimants, the Respondents Counsel pointed out that by Order 23 Rule 5 of the High Court of Delta State (Civil Procedure) Rules 2009, a party who has taken out a summons or filled a motion in a pending cause or matter may not withdraw it without leave of Court and the procedure for withdrawal with leave of Court is provided for in Order 23 Rule 3 of the High Court of Delta State (Civil Procedure) Rules 2009 by which such an applicant is expected to come by way of Summons on Motion and not by the mere filing of a Notice of discontinuance, but by Claimants own showing in this pending Motion inter partis before this Court, there is a pending Motion with parties before the High Court of Delta State seeking similar injunctive reliefs as sought for here which indeed has not been and was not discontinued or withdrawn by leave of the High Court. It then means, he said, that the action in the High Court of Delta is still pending. He went further to submit that assuming without conceding that the Action in the High Court of Delta State has been effectively discontinued as claimed .by the Claimant in their Counter Affidavit, it remain to be seen if a subsequent action on substantially the same grounds and reliefs can be commenced against the Defendant when cost awarded against the Claimant in the first action has not been paid or shown to be paid. He referred the Court to the Order 23 Rule 5 of the High Court of Delta State (Civil Procedure) Rules 2009 to hold that this action cannot be commenced and maintained against the Defendant until and unless the cost awarded to the Defendants have been paid. Continuing in his submission, Counsel said that the discontinuance of an action does not necessarily result in a striking out of the action as same may be dismissed especially in instance where learned Counsel to Claimants sought to discontinue as had earlier been canvassed. It is necessary that from the foregoing, the proper and only order the High Court of Delta State could have made in the circumstance is an order of dismissal and not one of striking out, and it is trite, he said, that an order of dismissal is a bar to parties re-litigating the same action on appeal. As such, the Claimant cannot re-litigate the same issue in this Court, Counsel claimed being aware of exhibit B and indeed Exhibits A & B which are public documents and which ought to be duly certified in accordance with Section 97, 109, 111 and 113 of the Evidence Act, Cap El4, LFN 2004 before it can be admitted or looked at by this Court. To him, it is axiomatic that whereas Exhibit, A was duly certified, Exhibit B was not. He urged the Court to discountenance Exhibit B and accordingly dismisses the Action. To Counsel, by the provision of Section 7(i) of NICA 2006 that this Court has exclusive jurisdiction to determine any question as to the interpretation of any Trade Union Constitution is completely besides the point, as the issue in this Court is not the exclusively of jurisdiction but the mode of gaining access to that exclusivity. The Counsel to the Claimant had admitted that the case is an intra Union Dispute and by the clear interpretation of Section 7(2)(3) of the NICA 2006 this Court had in a line of cases including this, held that Part 1 of the TDA must be exhausted before this Court can assumed jurisdiction. He referred the Court also to these cases. Corporate Affairs Commission V. Amalgamation Union of Public Corporation Civil Service and Recreational Service Employees [2004] I NLLR (pt. 1; Mix and Bake flour Mills Industries Ltd V. National Union of Food, Beverages and Tobacco Employees (2004) 1 NLLR (part 2) 247; and the yet to be reported cases of Suit No.NIC//6/2007 Peter Ohafor & ors V. Anthony Ugozor & ors; Suit No, NIC/12/2007 Association of Senior Staff of Banks Insurance and Finance Institution V. Union Bank of Nigeria Pic. & Ors; Suit No. NIC/12/2007; Association ofSernior Staff of Bank Insurance and Financial Institution V. United Bank of Africa PIC & Ors and Suit No. NIC/26/2008 (2008); Comrade Udea^alanya Anthony & ors V. Comrade Francis Iloduba & Ors. Counsel disagreed with Counsel to the Respondents submission that by the provision of the Trade Disputes Act, recourse to Arbitration or the Ministry of Labour and productivity only becomes necessary where there exits agreed means for settlement of the dispute apart from the Act; saying that section 4(i) of the TDA which Claimants Counsel paraphrased is immediately followed by Section 5 of the TDA and Counsel went on to lay out the said Section 5 (i) and 2 (a) (b). Finally, Counsel submitted that the Applicant made no bone about the existence or non-existence of Suit No. EHC/5/201Q and that exhibits A & B attached to the Counter Affidavit of Claim does not refer to the said Suit No. EHC/5/2010. He urged the Court to discountenance Claimant/Respondents averment in their paragraph 6.00 and 6.01 of their written address as same is baseless and does not relate to any point canvassed by Defendant/Applicants. We have carefully considered all the submissions, arguments and exhibits tendered by both parties. The only issue that calls for determination is whether this Court has the jurisdiction to hear and determine the matter at hand. It is fundamental that it is the claim of the plaintiff that determines the jurisdiction of the Court which entertains the claim. In the case of Adeyemi and ors v. Oyeyeri (1976)/FNLR 148 it was held that the subject matter of a suit is what determines whether or not the Court has jurisdiction to determine a suit. A cursory look at the Claimant's complaint and statement of facts in this case will show that the Claimant is challenging the denial of a right to an office of a Branch of a recognized and Registered Trade Union and also asking the Court, among other reliefs, to restrain the Defendant /Applicants whether by themselves servants, agents, privies or whosoever from preventing the Claimants from performing the functions of their respective offices until the expiration of their tenure of office on 10th April, 2011 and/or conducting an election to the offices occupied by the Claimants until the expiration of their tenure of office in 2011. The Claimant/Respondents and Defendants/Applicants are members of the same Union and therefore their dispute in an organizational dispute in respect to the election of officials to the Union. The reliefs sought by the Claimants in their Originating Summons are for declaratory Orders or reliefs against the defendant. Before the coming into effect of the NICA 2006, this Court held in a line of authorities [See Aminu Umar & 3 ors V. A. D. Binguda & 2 ors (Unreported) Suit No. NIC/16/2008 delivered 14th Jan. 2009 AAWUN V. Abdullahi Bugunda & 4ors (unreported) Suit No. NIC/22/2008 delivered 6th October 2008; Association Senior Staff of Banks, Insurance and Financial Institution (ASSIBIFI) V. Union Bank Plc. & 2ors (unreported) Suit No. NIC/11/2007 delivered 24th January 2009. However, it is our view that since the claims of the Claimant are for declaratory reliefs, they are such as are enshrined in the Part I of the TDA and such that the lower tribunals cannot accommodate them. In other words, it is this Court alone, not the conciliator, mediator or the IAP, that has the powers under the provisions of Sections 16-19 of NICA 2006 to grant remedies under prerogative writ which include injunction, declaration etc and this being the case, a claim that essentially relates to disputes and/or ones occupation of seats and/or election of officials of a trade union is an organizational dispute for which the NICA 2006 has vested power in this Court to adjudicate upon. It is clear that the claim of the Claimants come within this category of disputes and we therefore hold that this Court has jurisdiction, on this head, to entertain and determine the subject matter of this suit. On whether there is a gross abuse of judicial process in that there is a pending case in the High Court of Edo State (Suit No. HCE/5/2010) between the same parties and for the same subject matter, we must state, quickly, that the legal concept of the abuse of judicial process or the abuse of the procedure of the Court is very wide but in every and all cases, the general principle is that an abuse of the process of Court, as in this case, is constituted when more than one suit is instituted by a Plaintiff against a Defendant in respect of the same subject matter to the harassment, irritation and annoyance of the Defendant and in such a manner a;; to interfere with the administration of justice. See Okafor V. Attorney General Anambra State (1991) 6 I\WLR 659; The Vessel "Saint Roland V. Osinloye (1997) 4 NWLR 387. In the instant case, both parties are agreed that Claimants had instituted an action before the High Court of Delta State, Effurun in Suit No. HCE/5/2010 against the same Defendants. In this Court's, file are Counter Affidavit in opposition to Defendants/Applicants Notice of Preliminary Objection dated 17/03/2010, Wherein the 3r Claimants Comrade Akpoviri German averred as follows: (i) Suit No. EHC/6/2010; Comrade Chief Joseph A Aghwefeada & 2nors V. Comrade Rev. J. B. Asemota & anor was filed on 19/1/2010 at the Registry of the Delta State High Court Effurun. (ii) Upon a consideration of Notice of Discontinuance filed by the Claimants/Applicant on 25/1/2010, the Delta State High Court Struck out the Suit on 21/1/2010. The copies of the Notice of Discontinuance as well as the Court order striking out the suit are exhibited 'herewith and marked Exhibits A & B respectively. (iii) On 27/1/2010 when Suit No. NIC/ABJ/2/2010 Comrade Chief Joseph A. Aghwefeada & 2ors and Comrade Rev. J. B. Asemota & anors was filed in the registry of this Honourable Court no suit was pending in the Registry of the Delta State High Court Effurun or any High Court against the defendants. This assertion was in a Counter Affidavit dated and filed on 27/5/2010 and attached to it is a Certified True Copy of a Notice of Discontinuance dated 25/1/2010 and signed by Mr. R. O. Irikeje Counsel to Claimant both in the High Court of Delta State, Effurun where the Notice was filed, and here in this Court. There was also an Order of Court striking out the case with a N3,000.00 cost to the Defendants for the discontinuance of the case by Claimants in the High Court. This Court documents (Exhibits A & B) were filed and served on the parties before the Defendants reply on point of law on 15th June, 2010. The Applicant's answer to the issue of discontinuance was that leave to discontinue was required of the High Court and submitted that according to the provision of Order 23 Rule 2 of the High Court of Delta State (Civil Procedure) Rule 2009, an action can be discontinued without leave of Court by Claimants at anytime but not later than 14 days after the service of the Defence on him.. He said the Claimants did not show in their Counter Affidavit whether 25/1/2010 was 14 days after Claimants receipt of Statement of Defence. He neither informed this Court as to what date he filed his Defence for the Court to compute the time. Further submissions by Counsel had been reproduced earlier. We shall pause here and look at the position of this issue of abuse of Court process vis-a-vis Discontinuance in law. It is the law that multiplicity of suits by the same Plaintiff against the same Defendants, in respect of the same subject matter is prima facie vexations, oppressive, and an abuse of the process of Court. The abuse lies in the multiplicity of the actions rather than in the exercise of the right. See NV_Scheep V. MV 'SAraz' (2001) FWLR 582 Ratio 5i but conduct which is prima facie abuse of Court process is curable where it is subsequently shorn of the elements of vexation, annoyance irritation and harassment. Where there is an effective and valid discontinuance of one of the two suits constituting the abuse, leaving only one of the suits in the hearing of the application, the essential ingredient of abuse is not complete. The abuse will only be proved where there is the intention to proceed with the multiplicity of suit. It does not come within the accepted principle where by virtue of a valid Notice of Discontinuance the Plaintiff is left with a suit against the Defendant. In essence the crucial and essential ingredients of vexation, annoyance and irritation caused by harassment of the Defendant by means of a vexation litigation would be absent in hearing of the application. (See NV Scheep V. M.V. 'S Araz' Supra). In the case at hand, the CTC of the Notice of Discontinuance at High Court, Effurun was on 25/1/2010, the Court's Order, albeit uncertified, was dated same day. The suit before the National Industrial Court was commenced on 27/1/2010, definitely after the Notice and Order for Discontinuance. The applicant's Counsel unwittingly agrees with this when he submitted that the cost awarded by the Court to the Defendants had not been paid. The Order for cost was made on 25/1/2010; and it has been held by Courts that a plaintiff may without leave of Court discontinue a suit against all or any of the Defendants in an action before the hearing of the case. See Obienu V. Orizu (1972) 2 ECSLR 606; Izieme V. Ndokwu (1976) NWLR 230 referred. This present case is on all fours with the case of NV Scheep V. MV S-Araz Supra" where Karibi Whyte JSC P 591 Paras A-B saw fit to say. "In my view institution of multiplicity of suit against the same Defendant in respect of the same subject matter, though prima facie an abuse of the judicial process, is not conclusive of the fact. Hence, .f before the Writ of Summons or any of the processes in respect of the suit is served, and before hearing of the second suit a Notice of Withdrawal of the earlier suit is filed, it is clearly indicative of lack of intention to irritate, annoy or harass the Defendant by instituting a multiplicity of actions ". This is the position in this case as indicated by the valid Notice of Discontinuance filed in FHC/L/CS/213/95 before the hearing of the second suit on 16th May, 1995. We therefore are not of the opinion that these was an abuse of process. For all the reasons stated above, the Preliminary Objection fails in its entirely, and is struck out, The matter shall proceed to hearing. We make no order as costs. Hon. Justice M. N. Esowe Presiding Judge Hon. Justice F. I. Kola-Olalere Hon. Justice J. T. Agbadu-Fishim Judge Judge