BEFORE THEIR LORDSHIPS Hon. Justice B B. Kanyip - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. F. Agbadu-Fishim - Judge DATE: FEBRUARY 23, 2011 SUIT NO. NIC/LA/2M/2009 BETWEEN: Alhaji Lateef Akinsola Applicant AND National Union of Road Transport Workers Respondent REPRESENTATION Babatunde Akinola, for the applicant No counsel in court for the respondent JUDGMENT The applicant commenced this action by way of a process he termed an originating motion on notice. The said originating motion on notice is dated and filed on the 27th October, 2009 and brought under Orders it and 22 of the National Industrial Court Rules 2007, wherein the applicant by way of Judicial Review seeks the following orders: (a) A declaration that the National Secretariat of the respondent has no authority to constitute any committee to act upon any purported vote of No Confidence purportedly made by officer of Zone 2 Council. (b) A declaration that any meeting of the Zonal Executive Council Zone 2 of the union called without the knowledge or consent of the applicant and any decision made thereat is unconstitutional, null and void. (c) A declaration that the purported vote of No Confidence purportedly passed on the applicant without giving him notice of any allegation or affording him a hearing is unconstitutional, null and void. (d) An order of injunction restraining the respondent, its agent, privies or assigns from interfering with the applicant or the administration of Zone 2 Council of the respondent. The originating motion on notice is supported by a twenty three-paragraphed affidavit deposed to by the applicant. Also attached is a statement of facts, a verifying affidavit and Exhibits A, B, C, and D. The applicant also filed a written address dated 13th November 2009 but filed on the 16th November 2009. In his written address, the applicant raised three issues for determination, namely — 1. Whether the letter of vote of no confidence is valid particularly in the absence of fair hearing to warrant the setting up of committee by the respondent. 2. Whether the acts of the respondent is not inimical to the principle of fair hearing. 3. Whether the National Executive Council of the respondent has the power to discipline an elected Chairman of a Zonal Council qua chairman. On the first issue, the applicant’s submission is that the letter of vote of No Confidence is not valid by reason that the applicant was not given fair hearing before such action was taken. The applicant referred this court to De Smith‘s Judicial Review of Administrative Action 4th Edition, at page 240, where it was stated as follows- Depending on the circumstances of the case, a decision reached or proceedings conducted in breach of the audi alteram partem rule will be reviewable by means of certiorari, prohibition, mandamus and injunction or declaration. If a man is deprived of his liberty without the hearing to which he was entitled, he will be able to secure his release on an application for habeas corpus. To the applicant this court has the inherent power to review any decision made in breach of the audi alteram portem rule by means of prohibition and declaration which are the main reliefs in this case. The applicant further referred this Court to Jibrin v. NEPA  2 NWLR (Pt. 856) 210 at 229 paras a — c where the Court of Appeal held that — It is true that a body whether judicial, quasi judicial, administrative or executive in inception acts judicially when determining the civil rights and obligations of a person in finding aim liable of a fault, the body must give him a hearing before any issue can be properly decided. This is the intendment of section 36(1) of the 1999 Constitution. The applicant argued that the said Exhibit C explicitly stated that there was receipt of a letter of vote of No Confidence by 25 principal officers of the six States that constitute the Zone. That this presumes there had been a meeting of the Zone 2 Executive Council, and allegation had been made against the applicant. The applicant then referred to the Oxford Advanced Learner’s Dictionary, 67th Edition where the word ‘vote’ was defined as — a formed choice that you make in an election or at a meeting in order to choose [somebody] or decide [something]. That in this case there could not have been a vote (whether of confidence or no confidence) without a meeting. The applicant further contended that he never called any meeting of Zone 2 Executive Council at all material times nor did he receive notice of any such meeting, neither did he receive any allegation mad against him. That (in fact the names of the so-called 25 principal officers were not stated). In order words, that up till now, he is not aware of any allegation purportedly proved which warranted the purported vote of no confidence. The applicant, therefore, submitted that ab initio the letter of vote of No Confidence purportedly received by the National Executive Council is void and of o effect and should be set aside, referring this court to Alabi v. Lawal  2 NWLR (Pt. 856) 134 at 149. Furthermore, the applicant argued that it is obvious from the allegation made against the writer of Exhibit C that the other twin pillar of fair hearing i.e. nemo judex in causa sua would be breached as it is clear that those who wanted set up a committee and take final decision are already biased and will be judges in their own case. That they were the people who did not hear the applicant’s side on a spurious allegation of murder nor allowed him to be charged to court before finding him guilty and replacing him as the state Chairman with their candidate who was not even the Deputy Chairman as required by the union’s constitution. To the applicant, is obvious that the attempt to set u a committee on a vote of confidence is contemptuous of this court as it is meant to overreach the applicant or force him to withdraw the case pending before this court. The applicant further argued that a careful look at the union’s constitution shows that there is no provision for disciplining an elected zonal officer qua that office as there is no sanction available against any officer of the Zonal Executive Council. Rather, article 14(4) (l) of the union’s constitution provide inter alia thus - The elected officers shall remain in office for 4 years until next election. The applicant to continued that Article 10(3) of the union’s constitution provide for the powers and functions of the National Executive Council (NEC). That nowhere in that sub-article is it stated that the NEC has the power to receive or act on any decision (either vote of confidence or no confidence) of f e Zonal Executive Council or power to take disciplinary action against any elected officer o. that council. That the union’s constitution in this regard can be likened to the 1999 Constitution which provides for the Federal, State and Local Government Councils. Also That the President. Has no power to sanction either the State Government or Local Government elected officers. The applicant, therefore, wondered on what basis then did the NEC want to set up a committee to look into the purported vote of No Confidence. The applicant then submitted that the NEC of the respondent has no power to set up any committee to look into the affairs of the applicant as Chairman of the Zonal Executive Council and urged the court to grant the reliefs being sought. The respondent was not represented in this matter; neither did it put up an appearance nor file any defence. Having gone through the submissions of the applicant in this matter, it is clear that the applicant is essentially seeking for prerogative reliefs of judicial review against the respondent, a trade union. The applicant’s action was commenced by a process he termed an originating motion on notice. To the applicant the justifying Order under which the action is commenced is essentially Order 22 of the NIC Rules 2007. That Order makes provision for application for judicial review. This means that the applicant’s action is one for judicial review. The relevant rule in this regard is Rule 3(2) of order 22 which states that an application for judicial review shall be made by originating proc s. Order 1 Rule 3(2) then goes on to define originating process as a complaint or any other court processes by which a suit is initiated. Two questions are pertinent for present purposes. The first question is whether an action for judicial review can be maintained against a trade union, as a against public institutions, The second question is whether an action for judicial review commenced by way of an originating motion on notice fits the requirement of Order 22 Rule 3(2) of the N1C Rules. Regarding the first question, in the case of Aihaji Lateef Olarewaju (Branch Chairman Lagelu mini Bus) of NURTW Oyo State Chapter & ors v. Alhaji Lateef Salako a.k.a Eleweomo & anor unreported suit No: NIC/LA/1M/2009 the judgment of which was delivered on July 27, 2010. this court held that the prerogative writs of certiorari, mandamus and prohibition in other words, the prerogative writs of judicial review) lie against only government institutions for which trade unions do not qualify. This means and we so hold that the present action of the applicant for judicial review against a trade union is incompetent and so must fail. The second issue is whether the manner of commencing an action for judicial review by way of an originating motion on notice is appropriate as the applicant has done in the present case. As indicated earlier, Order 22 Rule 3(2) of the NIC Rules is specific that such an action can only be commenced by way of an originating process defined in Order I Rule 3(2) as a complaint or any other court processes by which a suit is initiated. The question then is whether a suit can be commenced by way of an originating motion on notice. We do not think so. The present action of the applicant is one commenced by a process not known to law; and because the reliefs sought are substantive they cannot be adjudicated upon by a motion on notice which is a process meant for interlocutory matters. Aside from all these reasons there is also the issue that the reliefs sought for by the applicant have essentially been pronounced upon by this court in Alhaji Lateef Olarewaju (Branch Chairman Lagelu mini Bus) of NURTW Oyo State Chapter & ors v. Alhaji Lateef Salako a.k.a. Eleweomo & nor, supra. To our mind, therefore, the applicant is in this suit reopening and/or re-litigating issues that have already been judicially pronounced upon by this court. For all the reasons adduced, we hereby hold that this application is incompetent and is, therefore, dismissed. We make no order as to cost. Judgment is entered accordingly.