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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HONOURABLE JUSTICE AUWAL IBRAHIM DATE: 16th February, 2016 SUIT NO.: NICN/EN/774/2014 BETWEEN: 1. Mr. KENNETH OKONKWO 2. Mr. PETER UGWU 3. Mr. EZEKWUCHE JOSEPH 4. Mr. SIMEON NWOBODO 5. Mr. BROWN AJUZOGU 6. Mr. CHIDIEBERE ARO 7. Mr. GODFREY ONOH 8. Mr. IKECHUKWU UKWUANI 9. Mr. LUKE OKENWA Mr. 10. Mr. (Suing jointly as the bonafide Branch Working Committee of the Amah Breweries Branch of NATIONAL UNION of ROAD TRANSPORT WORKERS (NURTW) AND 1. Mr. OSONDU OJOBOR 2. Mr. SAMUEL AGU 3. Mr. IKENNA OZOIKE 4. Mr. EBELE NGWU 5. Mr. INNOCENT 6. Mr. NICHOLAS AGBO 7. Mr. LIVINUS AGU 8. Mr. DANIEL OKWO 9. Mr. GABRIEL ONU (Sued jointly for parading themselves as the Executive Committee Of the Amah Branch of the National Union OF road Transport Workers) 10. Mr. AUGUSTINE AGU 11. Mr. SYLVANUS AGU 12. NATIONAL UNION OF ROAD TRANSPORT WORKERS, ENUGU STATE COUNCIL TO: THE RESPONDENTS: 1. Mr. OSONDU OJOBOR 2. Mr. SAMUEL AGU 3. Mr. IKENNA OZOIKE 4. Mr. EBELE NGWU 5. Mr. INNOCENT REPRESENTATION: Ifeanyi Edemba Esq. appeared with Ikenna Ekwom Esq. for the Claimants/Respondents. P. A. Ogwuche Esq. appeared for the Defendants/Applicants. RULING The Claimants initiated this action by way of a Complaint dated 15th day of September, 2014 filed on the same date. In paragraph 36 of the Statement of Facts the claimants claim against the Defendants the following reliefs: 36. Wherefore the claimants’ claim is for: a. A DECLARATION that the claimants are the only genuine and bona fide Executive Committee of the Amah Breweries branch of NATIONAL UNION of ROAD TRANSPORT WORKERS (NURTW). b. A DECLARATION that the “overthrow”, removal or dissolution of the claimants by the respondents is unlawful, illegal, without just cause or foundation and thereby invalid, null and void. c. AN ORDER OF MANDAMUS directing the respondents to immediately return and restore all the office equipments(sic), appurtenances, money and documents they carted away from the claimants’ offices on 14th July 2014. d. AN INJUNCTION restraining the 1st to 9th respondents from acting or parading themselves as the constituted Executive Committee of NATIONAL UNION OF ROAD TRANSPORT WORKERS (NURTW), Amah Brewery Branch, or usurping the functions of the claimants. e. AN INJUNCTION restraining the 10th, 11th and 12th respondents from howsoever encouraging or precipitating crises, or unduly interfering in the claimants’ smooth running of the affairs of NATIONAL UNION OF ROAD TRANSPORT WORKERS (NURTW), Amah Brewery Branch. f. GENERAL DAMAGES in the sum of Nine Million (N9,000,000) from the defendants for the public embarrassment, insult and dishonor flowing from the defendants’ unlawful acts against the claimants. The Complaint is accompanied by a Statement of Facts, list of witnesses, written statements on oath of witnesses and copies of documents to be relied on at trial. Upon being served with the processes of the Claimants, the defendants entered appearance in the matter dated and filed on the 10th day of November, 2014. They also filed their Statement of Defence with all its accompanying processes. Subsequently on 28th day of November, the Defendants further filed a Motion on Notice dated 28th day of November, 2014 praying the Honourable Court for the following: (a) Order dismissing this suit for want of jurisdiction; (b) In the event if (a) is not granted, an order striking out the name of the 12th defendant as non-juristic personality. AND for such further order(s) as the court may deem fit to make in the circumstance. The grounds on which the application is brought are that: (1) The Claimants/Respondents have failed to utilized(sic) the parties binding constitutional provisions as a pre-condition to seeking remedy in court (i.e.) Article 42 No. 8(i). (2) The 12th defendant/applicant is not a juristic person known to law that can sue or be sued. The motion is supported by a 7-paragraph affidavit deposed to by Uche Anyikwa Esq. a legal practitioner in the law firm of the defendants’ Solicitors. There are two exhibits attached (Exhibits A and B) to the said affidavit. There is also a written address in support of the motion on notice. Upon being served with the said motion on notice the Claimants/Respondents on 12th March, 2015 filed a Counter-Affidavit of 9 paragraphs deposed to by Simeon Nwobodo, the 4th Claimant in this suit. Accompanying the said Counter Affidavit is a written address. Thereafter on 26th of February, 2015, the Defendants/Applicants filed a reply on points of law. The parties adopted their respective written addresses. In his written address in support of preliminary objection challenging the competence of this suit, learned defendants counsel formulated and argued the following issues for the court’s determination: 1. Whether the jurisdiction of the Court has been properly invoked to entertain the suit? 2. Whether the 12th Defendant is a juristic entity that can sue and be sued? The learned counsel for the Claimants’/Respondents adopted the two issues in his written address and argued same. Having heard the parties on this application and also having gone through their processes arguments and submissions, the two issues argued by the parties are apposite for the determination of the application. On the first issue, which is whether the jurisdiction of the Court has been properly invoked to entertain this suit, it is the view of the defendants/applicants that the Claimants have not properly invoked the jurisdiction of this court for it to entertain the suit. This is because a condition precedent has not been fulfilled by the Claimants. This condition precedent is the provisions of Article 42 No. 8 (i) of the Constitution of the National Union of Transport Workers (NURTW) which provides that: Any member or group of members or local branch or State council that feels dissatisfied with any form of disciplinary measures taken against them either individually or collectively shall have the right of appeal to next higher organ of the Union provided that he or they shall first of all comply with the said punishment until the appeal is determined by the appropriate body. Right of appeal for redress should not be limited only to immediate organ. It shall continue until it is finally decided by the National Delegate Conference which is the highest decision/supreme organ of the union. It is only when he is not satisfied by the decision of the N.D.C. that he can report the case to the Ministry of Labour or take legal action at his own expense. According to the learned defendants/applicants counsel the claimants have not complied with this provision and such failure means that their suit before the court is incompetent. Not only that the suit is incompetent but that the Court itself is not competent to assume jurisdiction in the matter He relied on the case of NAAC vs Econet Wireless Ltd (2006) 37 WRN 120 at 125 where the Court of Appeal defined competence of court to mean that: The case comes before the court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction (See Porbeni vs P.F. & Invest. Co. (2002) 3 NWLR (Pt. 754) 452). Learned Counsel argued further that the Claimants being members of the NURTW are bound by the provisions of the Constitution of the Union and cannot approach the Court before fulfilling the condition precedent by following through the appeal process as stipulated in the Constitution. On the other hand, the learned Claimants Counsel focused his argument on the issue of jurisdiction wherein he submitted that while the Defendants/Applicants posit that the provisions of Article 42 No. 8(i) of the NURTW Constitution deprives this Honourable Court of Jurisdiction, the ouster of the court’s jurisdiction is not a matter for the parties will, agreement or conjecture. He referred to Manuwa vs N.J.C. (2013) 2 NWLR (Pt. 1337) 1 at 25 paragraph H. He added that the court’s jurisdiction is only conferred by the Constitution or statute and not parties. He relied on authorities such as ACN vs INEC (2013) 13 NWLR (Pt. 1370) 161 at 208 para G, Coca-Cola (Nig) Ltd vs Akinsanya (2013) 18 NWLR (Pt. 1386) 255 para G and Peretu vs Gariga (2013) 5 NWLR (Pt. 1348) 415 at 435 para D. In considering this issue of the competence of the Claimants’ suit I have to state that the yardstick for determining the jurisdiction of a court has been settled in our jurisprudence. It clearly consists of the fulfillment of preconditions that a party has obligation to do.In the case of Abubakar Umaru Abba Tukur vs The Government of Taraba State & Ors (1997) LPELR-3273, the Supreme Court, per Ogundare JSC at pages 39-40, paras D-A,stated as follows: The competence of a court to exercise jurisdiction in relation to an action before it depends on certain conditions which Bairamian, F.J. (as he then was) set out in Madukolu & Ors vs Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587, at p. 595, His Lordship stated, inter alia, as follows: Before dismissing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when:- (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. The 3rd condition above makes the fulfillment of a pre-condition an issue of competence of a Court to assume jurisdiction so that where there is non-fulfillment of such a condition then the court cannot assume jurisdiction. In the instant case, the Claimants seem to insist that the Court is competent to assume jurisdiction in the matter going by the fact that what the parties want is the determination of whether or not the actions of the Defendants were Constitutional and therefore right. I think there is no doubt about the Jurisdiction of the Court to entertain the subject matter of this suit. However, the objection of the Defendants/Applicants is that the Constitution of the Union itself has provided a pre-condition which must be fulfilled before the suit can be filed. It is quite clear to me that the provisions of Article 42 No. 8(i) of the NURTW Constitution does not oust the jurisdiction of the Court. What it has done is that it has provided a pre-condition which should be met by members, whether as individuals or groups, who feel that they have been wrongfully treated, to exhaust the internal processes enshrined in the Constitution before resorting to either litigation of the aid or the Minister of Labour. This pre-condition must be exhausted before the Claimants can approach this court for the determination of their dispute. In a recent decision of this court in a similar case, where the members of a trade union prematurely approached the Court, Comrade Uchenna & Ors vs Comrade Nkah& Ors (unreported) Suit No. NICN/EN/789/2014 Judgment in which was delivered on 11th December, 2015,it was held as follows: The case of the Respondents/Applicants is that going by the provisions of Rule 5(iii)(a) and (b) of the NULGE Constitution the Claimants’ right to come to court has not yet matured. The said provisions read as follows: Rule 5 (i)……….. (ii)………. (iii)……. (a) Any member shall have the right to initiate action at his/her own expense in connection with any breach of the provisions of the Constitution subject to an appeal to higher organs of the Union before such an action could be initiated. (b) Grievance arising from the decision of the National Executive Council (NEC) or conduct of the National Delegates Conference (NDC) should be reported to the National Executive Council (NEC) for adjudication before the aggrieved person can initiate any further action. Strict compliance to this provision shall be observed by all Members of the Union. This provision as rightly argued in my view by the learned counsel for the Respondents, is quite clear and needs to be given its clear meaning which is that the Claimants have to exhaust the internal process before coming to court. This requirement is to be fulfilled by the Claimants by submitting their grievance to the NEC of the Union or any higher body and receive the decision of the NEC or such a body before approaching the Court. The Claimants maintained that they have complied with the said provision. See paragraph 9(a-e) of the Counter-Affidavit in opposition to the Preliminary Objection. I have read the provisions in paragraph 9(a-e) of the Counter-Affidavit and what they show is that the Claimants have written to the National President of NULGE complaining about fraud in Ebonyi Branch of the Union. Reference was also made to the constitutional provision relating to when States Delegates Conference should be held, i.e. within 30 to 60 days before the expiration of the tenure of the sitting EXCO and not before. There is however nothing to show that any decision has been given by the President or the NEC or any other higher body of the Union. The provisions of Rule 5(iii)(b) in particular refers to a decision being made before the member can approach the Court. Thus I do not agree with the submission of the learned Counsel for the Claimants/Respondents that there was no need for any decision to be made before the aggrieved person can approach the Court because that is contrary to the express provision of the NULGE Constitution which must be given its clear meaning.