Download PDF
The Claimants instituted this action on 20th July 2016 using the Originating Summons process. The Claimants, who described themselves as members of the 1st Defendant association in paragraphs 3 and 4 of the affidavit in support of the Summons, submitted the following questions for determination in the suit: 1. Whether by the provisions of the Trade Union Act as amended by Trade Union (Amendment) Act Cap. 432 Laws of Federation of Nigeria 1990 as Amended by the Trade Union (Amendment) Decree No.4 of 1996 and the combined effect of Article 6 (B) (iv, viii, xi), Article 6 (C) (i - iii), Article 26 (e) and Code No. 12 of the Code of Conduct of the Constitution of Road Transport Employers Association of Nigeria (RTEAN), its general intendment and division of powers in its strata of organization, elections of Executives of State Branches of the Association should be conducted by and at the National Secretariat FCT, Abuja. 2. Whether by the provisions of the Trade Union Act as amended by Trade Union (Amendment) Act Cap. 432 Laws of Federation of Nigeria 1990 as Amended by the Trade Union (Amendment) Decree No.4 of 1996 and the combined effect of Article 6 (B) (iv, viii, xi), Article 6 (C) (i - iii), Article 26 (e) and Code No. 12 of the Code of Conduct of the Constitution of Road Transport Employers Association of Nigeria (RTEAN), its general intendment and division of powers in its strata of organization, the National Secretariat is conferred with powers to indiscriminately fix the amount and collect monies for the purchase of election forms and other monies incidental thereto. 3. Whether having regard to questions (1) and (2) above, the Defendants should remit the proceeds of the sales of forms and other incidental fees collected back to the Zonal or State Secretariat who will account to it thereafter and be restrained from taking steps or further steps in the conduct of the election. Upon the determination of the above questions, the Claimants sought the following reliefs from this court: 1. A Declaration that by the provisions of the Trade Union Act as amended by Trade Union (Amendment) Act Cap 432 Laws of Federation of Nigeria 1990 as Amended by the Trade Union (Amendment) Decree No.4 of 1996 and the combined effect of Article 6 (B) (iv, viii, xi), Article 6 (C) (i - iii), Article 26 (e) and Code No. 12 of the Code of Conduct of the Constitution of Road Transport Employers Association of Nigeria (RTEAN), its general intendment and division of powers in its strata of organization, the National Secretariat is not conferred with powers to conduct and/or fix the election for the State Branch of the Association at the National Secretariat FCT, Abuja. 2. A Declaration that by the provisions of the Trade Union Act as amended by Trade Union (Amendment) Act Cap. 432 Laws of Federation of Nigeria 1990 as Amended by the Trade Union (Amendment) Decree No.4 of 1996 and the combined effect of Article 6 (B) (iv, viii, xi), Article 6 (C) (i - iii), Article 26 (e) and Code No. 12 of the Code of Conduct of the Constitution of Road Transport Employers Association of Nigeria (RTEAN), its general intendments and division of powers in its strata of organization, it is the Zonal or the State Secretariat of RTEAN that is conferred with the powers to and remain the place for the conduct of the election of State officials and subsequently report to the National Secretariat. 3. A Declaration that the scheduled election of the Abia State Executive Officers of the Association slated to hold on the 25th to 26th day of July, 2016 at RTEAN National Headquarters FCT, Abuja by the National Executive Council of RTEAN is contrary to the Constitution of Association, its general intendments and division of powers within its strata and is tantamount to usurpation of the powers of the Zonal or State Secretariat of RTEAN and as such constitute a breach of the Constitution of the Association and is therefore wrongful, illegal and unconstitutional. 4. A Declaration that the indiscriminate fixing and/or collection of fees for the purchase of candidates' forms for election into executive positions in Abia State branch of RTEAN by the National Secretariat of RTEAN through the National Treasurer is contrary to the intendment and provisions of the Constitution of the Association and as such ultra vires and constitute an infraction of the Constitution of the Association and therefore illegal, wrongful and unconstitutional. 5. An Order of Injunction perpetually restraining forthwith the National Executive Council of RTEAN from proceeding with any arrangements or further arrangements to conduct the said election of officials into executive positions in Abia State Branch of RTEAN at the National Secretariat, Abuja or to conduct the election at all. 6. An Order of Injunction restraining forthwith the National Secretariat of RTEAN through the National Treasurer from indiscriminately fixing and/or collecting any further fees realized from the purchase of election forms preparatory to the election of officials into executive positions of the Abia State Branch of RTEAN. 7. An Order mandating forthwith the South East Zonal Secretariat to undertake, control and oversee modalities to the conduct and to conduct the election of officials into the executive positions of Abia State branch of RTEAN at the Abia State Secretariat. The Claimants also itemised the grounds for seeking the above reliefs as follows: 1. By the provisions of the Trade Union Act as amended by Trade Union (Amendment) Act Cap 432 Laws of Federation of Nigeria 1990 as Amended by the Trade Union (Amendment) Decree No.4 of 1996 shall have registered Rules, which shall contain such provisions with respect to the various matters mentioned in the First Schedule of the Acts; that is to say a constitution of the Union. 2. By the provisions of the Trade Union Act as amended by Trade Union (Amendment) Act Cap 432 Laws of Federation of Nigeria 1990 as Amended by the Trade Union (Amendment) Decree No. 4 of 1996 all Trade Unions including the Road Transport Employers Association has its registered rules (that is the Constitution of the Association). 3. By the first schedule to the said Trade Union Act as amended by Trade Union (Amendment) Act Cap 432 Laws of Federation of Nigeria 1990 as Amended by the Trade Union (Amendment) Decree No. 4 of 1996, there shall be a provision for the appointment and removal of appointed and elected officers in the said Constitution. 4. That the Constitution of the Association clearly divided the powers of the various organs of the Association at every level and as such any conduct beyond the powers allotted a given organ amounts to usurpation of powers and is ultra vires and consequently invalid. 5. That by the combined effect of Article 6 (8) (iv, viii, xi), Article 6 (C) (i - iii), Article 26 (e) and Code No. 12 of the Code of Conduct of the Constitution of Road Transport Employers Association of Nigeria (RTEAN), its general intendment and division of powers in its strata of organization, the election of National executives is conducted at the National Secretariat, Abuja, the election of Zonal Executives is conducted at the Zonal Secretariat, the election of State Executives is conducted at the State Secretariat and the election of the Chapel Executives conducted at the Local Government level. 6. That by the combined effect of Article 6 (8) (iv, viii, xi), Article 6 (C) (i - iii), Article 26 (e) and Code No. 12 of the Code of Conduct of the Constitution of Road Transport Employers Association of Nigeria (RTEAN), its general intendments and division of powers in its strata of organization, it is the National Executive that conducts election for the Zonal officials of RTEAN, the Zonal Executive conducts the election for State officials and reports to the National Secretariat while the State Executive conducts election for the Chapel officials and reports to the Zonal Secretariat. 7. That the scheduled election of the Abia State Executive Officers of the Association slated to hold on the 25th to 26th day of July, 2016 at RTEAN National Headquarters FCT, Abuja and the notice issued relative thereto by the National Executive of RTEAN is contrary to the Constitution of the Association, its general intendments and division of powers within its strata and is tantamount to usurpation of the powers of the Zonal or State Secretariat of RTEAN. 8. It is the relevant body in charge of conducting the election that fixes the amount payable for the nomination forms and collects same provided they render account to the body immediately above it to ensure due process, transparency and accountability. 9. That the indiscriminate fixing and/or collection of fees for the purchase of candidates' forms for election into executive positions in Abia State branch of RTEAN by the National Secretariat of RTEAN through the National Treasurer is contrary to the intendment and provisions of the Constitution of the Association and as such ultra vires and constitute an infraction of the Constitution of the Association. 10. That the conducts of the Defendants in arrangements to undertake, control and oversee modalities to the conduct and to conduct the election of officials into the executive positions of Abia State branch of RTEAN is wrongful, illegal and unconstitutional. 11. That the attempt to conduct the election into executive positions in Abia State branch of RTEAN at the National Secretariat, Abuja is unusual to the Association, most inconveniencing, expensive and disenfranchising of the members of RTEAN Abia State Branch and its constituent Chapels as most of the members will not be able to bear the cost implications and thus stand to be disenfranchised. 12. That the disenfranchisement of most members of the Association is undemocratic and in breach of their rights as members and thus will lead to chaos, unpopular leadership, disloyalty by aggrieved members and will in general upset the association and a possible division into factions. 13. That the best interest of an Association lies at yielding to the positive agitations of its members in line with her Constitution and to ensure that members' rights are jealously protected, enforced and guaranteed. 14. That the actions of the Defendants are not only illegal or unlawful but constitute an infraction of the Constitution of the Association and a breach of the rights of the Claimants. On 30th August 2016, the Defendants filed a notice of preliminary objection challenging the competence of the suit. The grounds of the objection are these: a. The Requisite leave to issue and serve outside the jurisdiction of this Honourable court has not been obtained. b. The Claimants lack locus stand to institute this suit as they are not members of the 1st Defendant. c. By virtue of Article 12 (1) (e) & (f), Article 18 (b) and (c), the Claimants lack the requisite Locus stand to sue on behalf of the Abia State chapter of the 1st defendant. d. Inclusion of dead persons as party in this suit renders the suit incompetent. Both the substantive suit and the preliminary objection were heard together. This judgment is also to include the ruling on the Defendants’ preliminary objection. It is observed that the preliminary objection of the Defendants touches on the jurisdiction of this court to entertain or determine the Claimants’ suit. It is the law that once the issue of a court’s jurisdiction is raised, it must be determined first before any other step is taken in the matter. The Supreme Court, in ISAAC OBIUWEUBI vs. CENTRAL BANK OF NIGERIA (2011) 7 NWLR (Pt.1247) 465 at 494 held: “It is thus mandatory that courts decide the issue of jurisdiction before proceeding to consider any other matter. Usually, where a court’s jurisdiction is challenged by the defence, it is better to settle the issue one way or the other before proceeding to hear a case on the merits. Any failure by the court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders further step taken in the proceedings a nullity.” It was similarly held in A.P.G.A. vs. ANYANWU (2014) All FWLR (Pt.735) 243 at 256-257, that- “The law by now is well settled that jurisdiction is the life blood of any adjudication and where it lacking, it will render any proceedings, no matter how well conducted, liable to be set aside for being a nullity. Jurisdiction is so fundamental that once the court’s jurisdiction to hear a matter is challenged, it must be dealt with and resolved first before taking another step in the proceedings. It is because it is so fundamental that it can be raised at any time, in any manner and at any stage of the proceedings. This court further observes that the grounds of the objection were also contained in the defendants counter affidavit to the originating summons. It implies that the issues of the jurisdiction of this court and the competence of the suit are going to come up even in the substantive suit. It is the more reason it is imperative that the preliminary objection raised by the defendants be dealt with first and foremost before going into the merits of the Claimants’ suit. The Claimants seem to contend in paragraph 26 of their counter affidavit to the Notice of Preliminary Objection that the NPO is not competent. It was averred in the paragraph that their counsel U. B. Nwankwo Esq. informed the deponent that the NPO is incompetent for the reasons that: (a) there was delay by the defendants to file the NPO and (b) the memorandum of appearance and the NPO do not have the NBA seal of the defendants counsel. On the 1st aspect, it is trite that objection to jurisdiction of the court can be raised at any time, in any manner and at any stage of the proceedings. See A.P.G.A. vs. ANYANWU (supra). A court cannot close its eyes to an objection to its jurisdiction on the ground that there was delay in bringing the objection and proceed to hear the matter. All the efforts will amount to nullity at the end of the day if it is found that the court had no jurisdiction to entertain the case in the first place. As for the NBA seal, the copies of the Memo of appearance and the NPO in the record of this court have affixed to them the NBA stamp/seal of Oshomegie Christopher, who is the counsel to the defendants in this matter. In the result of the foregoing, I will determine the defendants’ objection first before proceeding to examine the main case if it survives the objection. The affidavit of the defendants in support of the NPO was deposed by Comrade Yusuf Adeniyi, the National Secretary of the 1st Defendant. He averred in the 4 paragraphs affidavit that the person named as the 4th defendant in this suit died since October 2015 and that the claimants are not members of the 1st defendant. While the 1st claimant has never been a member of the 1st defendant Union, 2nd claimant has been expelled from the Union. The claimants are also not officers or executives of the Abia State Chapter of the 1st defendant. By Article 12 and 18 of the 1st Defendant's constitution, it is only the National Executive, the National Legal Adviser of the 1st Defendant that can authorize any suit in the name or on behalf of the 1stDefendant but no such consent or authority was given in respect of this matter neither was the National Executive or National Legal Adviser aware of this suit. All the defendants, except the 4th defendant, are residents in Abuja. A search conducted at the registry of this court shows that leave to issue and serve the processes out of jurisdiction on the defendants was not obtained. In his written address in support of the Notice of Preliminary Objection, learned counsel to the Defendants raised the following issues: 1. Whether having regard to Order 7 Rule 10 of the National Industrial Court Rules 2007, Section 97 and 99 of the Sherriff and Civil Processes Act CAP S6 Laws of the Federation 2004 is this suit competent in the light of the Claimants’ failure to seek for the mandatory leave of this Honourable Court to issue and serve outside jurisdiction? 2. Whether the Claimants have the requisite locus standi to institute this suit. 3. Whether this suit is competent in the face of the violation of Article 12 & 18 of the Defendant's constitution that imposes a condition precedence before institution of any action by or on behalf of the association of the 1st Defendant. 4. Does the inclusion of a dead person- the 4th Defendant in this suit not injurious to its competence? 5. Is this suit not utterly incompetent and frivolous? With respect to issue one, counsel submitted that the Claimants failed to comply with Section 97 of the Sheriff and Civil Processes Act that makes it mandatory for a writ to be served outside jurisdiction to be so marked on its face, and that the Rules of this court in Order 7 Rule 10 prescribes that a writ or process to be served outside jurisdiction must be done with the leave of this Court. It is counsel’s submission that the failure of the Claimants to seek the leave of this court to issue and serve the originating summons on the Defendant divests this Court of the jurisdiction to hear this suit. Counsel urged the Court to strike out this suit in line with these lines of authorities: 1. SKENCONSULT (NIGERIA) LTD vs. UKEY (1981) 1 SC 6 2. NWABUEZE vs. OKOYE (1988) 4 NWLR (Pt. 91) 644 3. NPA vs. EYAMBA & 4 ORS (2006) All FWLR (Pt. 320) 1022 4. ONONYE & 2 ORS vs. CHUKWUMA (2005) All FWLR (Pt. 287) 951 With regard to issue two, it is the contention of counsel that having regard to Paragraphs 3(b),(e) & (g) of the Applicant’s affidavit and the exhibits annexed to it, the Claimants are not members of the 1st Defendant, and they cannot act or speak on behalf of the 1st Defendant because they have no locus standi to institute this suit. Counsel contended further that owing to the fact that locus standi is a variant of jurisdiction, the absence of which impact on the jurisdiction of the court, this suit is incompetent because the Court has no jurisdiction to hear it. The cases of MADU vs. MADU (2008) 6 NWLR (Pt. 1083) 304 and OGUMOKUN vs. MILITARY ADMINISTRATOR OSUN STATE (1999) 3 NWLR (Pt. 594) 361 were cited by counsel in support of his contention. It is counsel’s further submission that locus standi is a variant of jurisdiction and the absence of locus standi impact on the jurisdiction and thus robs the Court of the jurisdiction to adjudicate on a particular matter as in this suit. Counsel also relied on the cases of ONUKUSI vs. R.T.C.M.Z.C (2011) 6 NWLR (Pt.1243) 345 and the unreported case of RTEAN vs. ASUZU in Suit No. NICN/ABJ/113/2013, to the effect that a court will lose jurisdiction where a party has no locus standi. Further, counsel submitted that a suit instituted by a party without requisite authority should be dismissed, on the authority of OLORIODE vs. OYEBI (1984) SC 1 and OWODUNNI vs. REGD. TRUSTEES OF C.C.C. (2000) 6 S.C. (Pt. III) 60. Again, it is the argument of counsel that the Claimants have failed to show that they are members of the 1st Defendant to warrant them having Locus Standi in this suit, and all the submissions made by their Counsel in his written address goes to no issue. With respect to Issue 3, counsel argued that article 2(a) of the said Constitution of the 1st Defendant makes it the supreme law that governs its members and which all must obey. Any act or conduct that is contrary to the 1st Defendant Constitution by its members is void and of no effect. Similarly, counsel argued further that by virtue of Article 5 (a) (b) (c) of the said Constitution members are bound to unconditionally obey all decision of the 1st Defendant. It is the contention of Counsel that the Claimants failed to meet a condition precedent in Article 12 of the constitution of the 1st Defendant, which reads: “No member of the Association shall have right to institute any legal proceeding in connection with any branch of the Association, without first referring same to the National Executive Council of such intention. Where such action is taken without clearance, it will be purely on individual member expenses and such member will be dealt with accordingly.” Article 18 stipulates that the consent and approval of the 1st Defendant and its Legal Adviser must be sought before an action like the sort in the present case is commenced. It is counsel’s argument that no such consent or approval was given by the 1st Defendant, none was shown in the Originating Summons, and since a prior consent of the 1st Defendant is a condition precedent that will give validity to the institution of this suit; this extant action is incompetent. See 1. DOMICE NITIERO vs. NIGERIA PORT AUTHORITY (2008) All FWLR (Pt. 430) 701-702 2. ODOEMELAM vs. AMADIUME (2008) All FWLR (Pt. 405) 1760 at 1767. Counsel submitted that non-compliance with a condition procedure goes to the root of the case, that will not be treated as an irregularity but capable of nullifying the entire proceedings, in line with the decisions in the cases of AGIP (NIG) LTD vs. AGIP PETROL INTL. (2010) All FWRL (Pt 520) 1198 at 1233. AMADI vs. NNPC (2000) All FWLR (Pt. 9) 1510 at 1553. At this juncture, counsel referred to several authorities on the consequence of failure to fulfill a condition precedent by serving a pre-action notice, namely: 1. MOBIL PRODUCING (NIG) UNLIMITED vs. LAGOS STATE ENVIROMENTAL PRODUCTION AGENCY & ORS (2002) 12 SC 1 2. NTIERO vs. NIGERIAN PORTS AUTHORTY (2008) 5-6 S.C. (Pt. 11) 8 3. NIGERIA DEV. CO LTD vs. ADAMAWA STATE WATER BOARD (2008) 2-3 SC (Pt. 11) 202 It is counsel’s submission that the failure of the Claimants to obtain the consent/approval of the 1st Defendant has rendered this suit incompetent and the Court lacks jurisdiction to hear it. Counsel relied on the case of ELABANJO vs. DAWODU (2006) 15 NWLR (Pt. 1001) 76 where the Supreme Court held that: “The issue of jurisdiction is a threshold issue and a lifeline for continuing any proceedings therefore, objection ought to be taken at earliest opportunity, if there are sufficient materials before the Court to consider it and a decision reached on it before any other steps in the proceedings are taken. This is because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted.” Counsel argued that this suit is incompetent having been filed in contravention of the 1st Defendant’s Constitution, because the clear intent and purpose/interpretation of its Article 12 (e), is that the consent/permission of the National Executive Council is a condition precedent to the institution of this suit. Thus, since the Claimants have not said or shown in their originating summons and all the accompanying Affidavits that they sought and obtained the consent of the National Executive Council or the National Legal Adviser, this suit is incompetent and should be dismissed. With regard to issue four, counsel submitted that as shown in paragraph 3(a) and (b) of the 1st Defendant’s Counter affidavit, the 4th Defendant died in October 2015, his inclusion in this suit has impaired its competence because a dead person cannot be a participant in litigation. Counsel argued that the dead defendant cannot be a Party in this suit, and he cannot be substituted but may only be excised from this suit. This argument was based on the decisions in MERIBE vs. EGWU (1976) 1 ANLR 266 at 275, OKETIE vs. ALUGOR (1995) 5 SCNJ 217 at 226. It is counsel’s further argument that where either the Plaintiff or Defendant is incompetent, a Court of law has no jurisdiction, and until the issue of the 4th Defendant is sorted out, this suit remains incompetent. See ADELAKUN vs. ORUKU (2006) All FWLR (Pt. 308) 1360 at 1374. It is counsel’s opinion that from the foregoing, this suit has become merely academic and this Court has no jurisdiction to adjudicate on academic issues. See PLATEAU STATE vs. A.G FEDERATION (2006) All FWLR (Pt. 305) 590. Counsel urged the Court to dismiss this suit for being frivolous and incompetent. In opposing the NPO, the Claimants filed a counter affidavit of 28 paragraphs on 27th October 2017. The counter affidavit was deposed to by the 2nd Claimant. It was averred therein that the recent correspondences from the National Secretariat of the 1st Defendant has represented the 4th Defendant as the National Treasurer and no evidence of the death of the 4th Defendant was reflected in the correspondences of the 1st Defendant. In addition, the 2nd to 4th Defendants were all sued in this action in their official capacities as officers of the 1st Defendant. The Claimants satisfied all requirements for membership of the 1st Defendant Association contained in its Constitution and are therefore bonafide members of the Association. The Claimants are also officers of Association. Upon registration as members of the Association, the Claimants were issued with membership Identity Cards signed by the National President and National Secretary General of the 1st Defendant. The Identity Card of the 2nd Claimant discloses that he was the 1st National Vice President of the 1st Defendant as at November, 2014. The 1st Claimant lost his own Identity Card but he made an Affidavit of Loss on the 14th December, 2015. In 2014, the National Executive Council embarked on a digital data capture project for a digital identity card. The Claimants enrolled, paid and were issued receipts of payment and registration numbers but the new digital Identity Cards have not been issued to members up to date. The suspension and expulsion letters exhibited by the Defendants were made up to deprive the 2nd Claimant of capacity to institute this suit. Besides that the suspension or expulsion letters did not show they were received by the 2nd Claimant, the Defendants, at all times up till this moment, have continued to recognize and accord the 2nd Claimant the respect of his office as the Chairman of Abia State Branch of the 1st Defendant. In that capacity, the Defendants recently wrote him a letter dated 22nd day of June, 2016 which was a notice of strategic meeting towards the election of executive officers for Abia State Chapter. The 2nd Claimant was also the one who remitted monies realized from the sale of election forms to the National Treasury. Article 12 and 18 of the 1st Defendant's Constitution only applies to situations where a member intends to bring an action for and on behalf of the Association but does not apply where a member or branch of the 1st Defendant intends to sue the National Executive Council. The National Executive Council and the Zonal Executive officers are both created by the Association’s constitution. The National Executive Council has no powers to disband the Zonal Executive. Until an election is conducted, the elected Executives of Abia State Chapter of the Association are the 2nd Claimant, Chief James Egwuonwu, Phillip Nwaigbo, Nnamdi Chikwe and Emeka Ogu as Chairman, Vice Chairman, Secretary, Financial Secretary and Treasurer respectively. The requirement for leave to issue and serve originating processes of this court out of jurisdiction does not apply to service within states in Nigeria. The Claimants’ counsel submitted in his written address in support of the counter affidavit, distilled five issues for determination, thus: 1. Whether the Claimants/Respondents possess the locus standi to institute this action. 2. Whether the Claimants/Respondents are required by law in this circumstance to obtain the leave of court before issuing and serving the Originating processes in this suit. 3. Whether the Claimants/Respondents in the circumstance are in violation of Article 12 and 18 of the 1st Defendant's Constitution in bringing this action before the court. 4. Whether the commencing of this suit against the 4th Defendant/Applicant in his official capacity as the National Treasurer survives the death of the occupant and on whom lies the duty to show death. 5. Whether this Notice of Preliminary Objection is competent in law. On issue one, Counsel submitted that the Claimants have the locus standi to institute and prosecute this action. Counsel cited the case of A.G. KADUNA vs. HASSAN (1985) 2 NWLR (Pt. 8) 453 at 496 where locus standi has been defined thus: "Locus standi means the right to be heard in Court or other proceedings or the competence to institute proceedings in a Court of law for redress or assertion of a right enforceable at law" In the case of ADESANYA vs. PRESIDENT FRN (1981) 5 SC 112 at 148, it was held that "Locus standi is the right of a party to appear and be heard on the question before any Court or Tribunal". According to Counsel, the Claimants have by their averments in the Counter Affidavit in opposition to the NPO and the relevant exhibits annexed thereto, show that they are not just members of the 1st Defendant/Applicant Road Transport Employers Association of Nigeria Abia State Branch, but are officers of same. This is exercise of their rights to peaceful assembly and association as guaranteed by Section 40 of the Constitution of Federal Republic of Nigeria which provides that "Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest". The constitution of Road Transport Employers Association of Nigeria provides in Article 4 (III) for who is a member and states thus: "A possession of membership card/certificate as the case may be, duly signed by the Chapel Chairman and affirmed by the National President is the only evidence of membership of the Association". According to counsel, the membership card, affidavit of loss of staff identity card, data capture receipt for issuance of new membership identity card of the Claimants are unassailable evidence of their membership. The Trade Union Act together with the Constitution of the Federal Republic of Nigeria gives an aggrieved party the right to approach the court on matters relating to declaration of his rights, duties and obligations and to seek reliefs where those rights are breached. The Trade Union Act particularly gives a member of a union the right to seek redress in Court when aggrieved by the conduct of other members especially the executive members of the union which is referred to as an "intra union dispute". Counsel referred to Section 36 (1) of the 1999 Constitution which provides that: "In the determination of his civil rights and obligations, including any question or determination by or against any government on authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure to independence and impartiality". Section 54 of the Trade Union Act Cap T 14 LFN 2004 defines a trade dispute as follows; " Trade dispute means any dispute between employers and workers or between workers and workers which is connected with the employment or non- employment or the terms of employment or conditions or work of any person". The same Section 54 of the Trade Union Act defines a member of Trade Union thus: " A member of Trade Union means a person normally engaged in a trade or industry which the Trade Union represents and a person either elected or appointed by a Trade Union to represent workers interest", According to counsel, the Claimants have demonstrated in their counter affidavit that the said letters of suspension, warning and dismissal were merely concocted to deprive them of the capacity to sue and that the consistent relationship even till date clearly negates the said letters which were simply backdated and as such there is nothing that robs them of locus standi. Counsel submitted that the Claimants are members/officers of Road Transport Employers Association of Nigeria Abia State Branch, and as such, possess the locus standi to bring this action against the National Executive Council since a branch or chapter of a union can always approach the Court so that the Court will pronounce on the construction or interpretation of the Constitution of the Association and make relevant declarations on the rights of parties. On issue two, it is counsel’s submission that the Claimants are not required to in law to first seek and obtain the leave of Court to issue and serve originating processes "out of the Jurisdiction" where "out of jurisdiction" means from a particular state to another within Nigeria. According to the Claimants, the jurisdiction of the court referred to in Order 7 Rule 10 of the National Industrial Court Rules 2007 means territorial jurisdiction. By Section 6(1) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act which provides that "There shall be a National Industrial Court of Nigeria", it is glaring that the territorial jurisdiction of the National Industrial Court being a Federal Court is Nigeria, and comprises of the entire states therein, as well as the Federal Capital Territory Abuja. The National Industrial Court is just but one court in the entire nation called Nigeria with judicial divisions created just for convenience and have Nigeria as its territorial jurisdiction and as such cannot require a party seeking to initiate an action before it to seek its leave to issue and serve originating processes on parties resident in Nigeria. The provision of Order 7 Rule 10 of the National Industrial Court Rules 2007 therefore makes reference to issuance and/or service of originating processes outside Nigeria at which time leave to issue and serve such processes must be first sought and obtained. The authorities cited by the Defendants refer to the State High Courts and are therefore inapplicable to the circumstances of this case. According to counsel, Section 97 (1) of the Sheriffs and Civil Process Act mentioned by the Defendants do not regulate service of processes in the National Industrial Court but applies only the State High Courts. On issue three, it is the submission of counsel that the Claimants did not in any way violate the provisions of Article 12 and 18 of the Constitution of Road Transport Employers Association of Nigeria. Article 12 (E and F) provides as follows: "no member of the Association shall institute any action for or on behalf of the Association without a prior approval/consent of the National Executive Council through the National President of the Association".. "Any member who institutes any action against the Association shall be expelled except the National Executive Council decide otherwise by a resolution to show mercy". From the above provisions and clear words of the Constitution, the bar on commencement of law suit without first seeking the consent and/or authority of the National Executive Council of the 1st Defendant/Respondent or her legal advisers only relates to where a party seeks to initiate an action in Court for and on behalf of the 1st Defendant. It naturally follows that where a party seeks to maintain an action in that behalf, the consent and/or authority of the person to be represented who is actually the main party must be first sought and obtained for a valid suit, since he is not expected to be ignorant of a suit where he is the Claimant. This according to counsel, does not in any way contemplate a situation where a member, officer or a branch of the Association seeks to maintain an action against the National Executive Council of the 1st Defendant as the Constitution of the Federal Republic of Nigeria grants every citizen the opportunity and right to approach the Court to make declarations as regard his rights, obligation, duties and liabilities. As such any other law, by-law, regulation etc. that negates the provision of the Constitution is void ab initio to its extent of inconsistency. Counsel submitted that the provision of Article 12 (F) is also void ab initio since it seeks to expel anyone who dares challenge the action of the National Executive Council which actually is the precursor of the purported letter of suspension, warning and/or dismissal which has since been used as an instrument of terror and intimidation on the members of the Association who feels aggrieved. On issue four, counsel submitted that it is the responsibility of the Defendants/Applicants to show by positive evidence especially by reflecting same in its correspondences that a member of the National Executive Council whose name is contained in its letter headed paper as an Executive member is dead. Where a person is sued in his official capacity, such office survives the death of the occupant. It is trite law that an office occupied by a person in an association or corporate body is distinct from the occupant and as such the death of the occupant does not in any way determine the existence of the office. The Claimants sued the 2nd to the 4th Defendants in their official capacity as National Executive Council members of the 1st Defendant under their respective offices. According to counsel, it is clear that they were not sued in their personal capacity but as officers of the 1st Defendant. Where an occupant of any of the offices dies, the next occupant is held totally liable. It is also the sole responsibility of the Defendants to reveal the successor of the 4th Defendant if actually he is dead, as such a party is a necessary one. On issue five, it is the submission of counsel that the Notice of Preliminary Objection is incompetent and as such should be dismissed. According to counsel, Order 9 Rule 1 of the National Industrial Court Rules 2007 gives the Defendants/Applicants 14 days within which to enter appearance and file their defence or counter affidavit. By the Counter Affidavit of the Claimants, it has been clearly demonstrated that this suit was served on the Defendants on the 25th day of July, 2016 but the Defendants only filed a response by way of Notice of Preliminary Objection on the 30th day of August 2016, well out of time. By the Rules of Court, where an application is filed, it shall be served within five days from the date of its filing. The Claimants have also demonstrated that the Notice of Preliminary Objection filed on 30th August 2016 was served on the Claimants on the 20th day of October 2016. Counsel added that it is trite that where a lawyer files a process in Court the seal of the lawyer must be affixed to such processes authenticating same, and where such is missing, the process is rendered incompetent. The Notice of Preliminary Objection is therefore incompetent and should be struck out. The Defendants filed a further affidavit of 4 paragraphs on 31st January 2017. It is deposed to by the same Comrade Yusuf Adeniyi who stated that the 1st Defendant constituted a Caretaker Committee for Abia State in January 2016 and the Committee was formally constituted in July 2016. The 2nd Claimant, besides his expulsion from the Association, ceased to be an officer of the 1st Defendant since January 2016. The digital identity card has since been given to members. Samples of those for the deponent, national president, and some other members were exhibited. The deponent maintained that the 1st Claimant is not known to the 1st Defendant Association. Lost identity card of members is reported to the 1st Defendant who issues another one within two weeks. No letter was addressed to the 2nd Claimant after he was already suspended. The deponent exhibited the death certificate of the 4th Defendant. In his reply on points of law, the Defendants’ counsel submitted in response to the Claimants’ address that they had failed to show that they are members of the 1st Defendant to warrant them having locus standi to institute this action. He referred to various exhibits and depositions in the both the affidavit in support of the NPO and the further affidavit filed in response to the Claimants’ Counter Affidavit, which clearly show that the 1st Claimant is not a member of the 1st Defendant, and the 2nd Claimant has been expelled; fact which has not been denied or challenged. They therefore have no locus standi. Counsel submitted further that the Claimants’ submissions with regard to territorial jurisdiction of the NICN is of no moment. Citing the case of MV ARABELLA vs. NAIC (2008) All FWLR (Pt. 443) 1228, counsel argued that Sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act ought to have been complied with, as the NICN is a Federal Court just like the Federal High Court to which the said decision was directed. The fundamental defect of non-endorsement and failure to obtain leave, according to counsel, has rendered the Originating Summons defective and consequently robbed this court of jurisdiction to adjudicate on the matter. Counsel reiterated his earlier submissions relating to the membership of the Claimants and urged the court not to engage in academic exercise. He urged the court to dismiss the suit. COURT’s DECISION Having examined the facts of the Notice of Preliminary Objection and the submissions of counsels to the parties for and against the Preliminary Objection, it seems to me proper to determine the Preliminary Objection along the lines of the issues arising from the grounds of the Notice of Preliminary Objection. The 3 issues which, in my view, arose from the grounds of the NPO are the following: 1. Whether the Claimants are required to seek leave of this court to issue and serve the originating processes on the Defendants. 2. Whether the Claimants possess the locus standi to institute this suit? 3. Whether the 4th defendant is a competent party to this suit? ISSUE 1: The 1st ground of the Preliminary Objection is that the Claimants did not obtain leave of this court to issue and serve the originating processes on the Defendants outside the jurisdiction of the court. The deposition in paragraph 3 (h) of the affidavit in support of the Preliminary Objection discloses that the 1st, 2nd and 3rd Defendants were served the processes in Abuja, Nigeria. It was on this basis the Defendants’ counsel argued that while Section 97 of the Sheriffs and Civil Processes Act require that the processes for service out of jurisdiction of court must be marked for service out of jurisdiction, Order 7, Rule 10 of the Rules of the Court requires leave of the court to be obtained to serve the processes out of jurisdiction. The issue raised by the Defendants in the instant ground of the Preliminary Objection concerns the applicability of the provision of Section 97 of the Sheriff and Civil Processes Act to the originating process issued from this court and the need to seek and obtain leave of the court to issue and serve the originating processes from the state of issue into another state. The counsels to the parties filed additional addresses on this issue where they disagree on which between the 2007 or 2017 Rules should apply to determine this issue. The counsel to the Defendants submitted that the suit was filed under the 2007 Rules, as such, it is that rule that will apply and not the 2017 rules which cannot have retroactive effect to the date of filing of the suit and service of the processes on the Defendants. Counsel also cited Order 1 Rule 8 of the 2017 Rules to show that the rules apply to continuation of actions filed before the rules or further steps to be taken in the matter. Counsel to the Claimants on the other hand argued that the applicable rule is not the one in force when the suit was filed but the one in force at the time the suit was heard. Counsel cited a number of cases on this point and concluded that the applicable rule is the 2017 Rules in force at the time the application was heard. Let me state that at the time this suit was filed and service of the originating processes were effected on the Defendants, the Rules of court in operation was the 2007 Rules. I do not think there should be any argument as to which Rule of this court applied at the time. It was the 2007. At the time the originating processes in this action were issued and served on the Defendants, the provisions of the 2007 Rules on issuance and service of processes applied. Under that Rule, which has now been revoked by the 2017 Rules, it was not a requirement to seek and obtain leave before service of the processes of this court in another state in Nigeria. Section 21(1) of the National Industrial Court Act 2006 makes it very clear that the whole of the Federation of Nigeria is a single jurisdiction for the NICN. The divisions of the NICN in various states are for administrative and adjudicatory convenience only and as such, they do not have exclusive territorial jurisdiction restricted to the division or state where the division is situate. Therefore, Order 7 Rule 10 of the revoked 2007 Rules applied to situations where the processes are to be served out of the Federation of Nigeria. It is only when the processes are to be served outside Nigeria that leave of court is required under the 2007 Rules. This has been the view of this court in the following cases decided under the 2007 rules: Suit No. NIC/LA/46/2009: DR. AINA SIMEON ADEODUN & 3 ORS. vs. GOVERNING COUNCIL, OYO STATE COLLEGE OF EDUCATION delivered on 8th February, 2011; Suit no. NICN/EN/14/2012: IFINEDO NORRIS EBIBUM vs. AFRIBANK NIGERIA PLC. (NOW MAINSTREET BANK LTD) delivered on the 24th day of August, 2012; Suit no. NICN/OW/38/2013: UGOALA CHIDINMA JOY (MRS.) vs. ABIA STATE UNIVERSAL BASIC EDUCATION BOARD delivered on 28th April 2014 and Suit no. NICN/CA/75/2012: BRIGHT CHINEDU WODI vs. DIFFERENTIAL ALUMINIUM AND STEEL COMPANY LTD & ANOR delivered on the 21st day of January 2014. In the above cases, this court held that service of the processes of this court on any Defendant in another state in Nigeria is not service out of jurisdiction as to require the endorsement in Section 97 of the Sheriffs and Civil processes Act or the need to seek leave to issue and serve the Complaint in another state. The 2007 Rules is not as explicit on the issue as the 2017 Rules which has now specifically distinguished between service within jurisdiction and service outside jurisdiction. The 2017 Rules has now expressly taken care of the issue. In the first place is when it clearly defined “out of jurisdiction” with respect to the NICN to mean out of the Federal Republic of Nigeria in Order 1, Rule 10. In the second place, Rules 15 and 16 of Order 7 of the 2017 Rules clearly explained that it is when a party to be served a process of this court is out of the territory of Nigeria that leave of the court is required to effect service out of Nigeria. Their provisions read: 15-(1). The National Industrial Court has one jurisdiction throughout the Federal Republic of Nigeria; and it is only divided by the President of the court into Judicial Divisions or Registries for adjudicatory and administrative convenience. (2). All originating processes or other court processes filed by any party before the court shall be served on any other party in any part of the Federation without leave of court. 16. All originating processes or other processes filed by any party before the court which are to be served on any other party outside the Federal Republic of Nigeria shall be with leave of the court. In view of the position of this court under the 2007 Rules of this court and the provisions of the current rules of the court, I find no merit in this ground of the Defendants Preliminary Objection. I hold that the Claimants were not required to seek and obtain leave of this court to issue and serve the originating summons on the Defendants who were served in Nigeria. Since the processes were not served outside the territorial jurisdiction of the NICN, the endorsement prescribed in Section 97 of the Sheriffs and Civil processes Act is not also required in the circumstance. ISSUE 2: The Defendants have also contended that the Claimants lack the locus standi to institute this suit. It was averred in the affidavit in support of the Preliminary Objection that the Claimants are not members of the 1st Defendant association. The 1st Claimant was never a member while the 2nd Claimant had been expelled from the Association. The expulsion letter of the 2nd Claimant was exhibited to the Defendants’ affidavit as Exhibit 00C3. It was deposed further that the Claimants lack locus standi to institute this suit as they are not members of the 1st Defendant. The Claimants, on the other hand, contended that they are bonafide members of the 1st Defendant association after they were duly registered as members of the Abia State branch and were issued membership identity cards. The 2nd Claimant said he was at no time expelled from the Association. The term locus standi (or standing) denotes the legal capacity to institute proceedings in a Court of Law. The term is usually used in connection with the Claimant who has instituted an action and the question usually is whether in law, he can commence or prosecute the suit he has commenced. Before a Claimant can be said to have locus standi, there must be the connection between the subject matter of the suit and the Claimant’s interest in the subject matter touching him as a party and giving him the right to sue. Once a party’s standing to sue is challenged, such a party must show that he has sufficient interest in the subject matter of the suit or that his interest therein is likely to be adversely affected. Where such a party cannot show sufficient interest in the subject matter of the suit or in the outcome of the suit or if he has not suffered or does not stand to suffer any injury either by the enforcement, or threatened exercise of some power, authority or right, he cannot be said to have locus standi in the suit. See METILELU vs. OLOWO-OPEJO (2006) All FWLR (Pt. 337) 418 at 429; EAST HORIZON GAS CO. LTD vs. EFIOK (2012) All FWLR (Pt. 605) 386 at 395; ADETONA vs. ZENITH INTERNATIONAL BANK PLC (2012) All FWLR (Pt. 611) 1443 at 1465. In this case having to do with issues arising from the constitution of an association, membership of the association is what gives the Claimants the locus to institute actions in respect of constitutional matters of the association. Also, the interest of the Claimants in the subject matter of the suit could only arise from being members of the association. Accordingly, the question at this point is: Are the Claimants’ members of the 1st Defendant association as to give them the locus standi to institute this action? It is the law that where the locus standi of a party is challenged, the burden is on that party to establish his locus standi. The allegation of the Defendants that the Claimants are not members of the 1st Defendant effectively puts a burden on the Claimants to prove that they are members of the 1st Defendant association. ARTICLE 4, Part A Paragraph (iii) of the constitution of the 1st Defendant provides thus: “A possession of membership card/certificate, as the case may be, duly signed by the Chapel Chairman and affirmed by the National President is the only evidence of membership of the Association". Going by this provision, the only evidence required from the Claimants to show that they are members of the 1st Defendant is their membership identity card or certificate. It is deposed in the counter affidavit of the Claimants that upon registration with the 1st Defendant, they were issued membership Identity Cards but the 1st Claimant lost his Identity Card. He has however deposed to an Affidavit of Loss of Staff Identity Card on 14th December 2015 at the High Court Registry Abia State. The affidavit was exhibited as Exhibit D. I find the affidavit not helpful to the 1st Claimant’s assertion. In the affidavit, the 1st Claimant deposed in Paragraph 2 thus: “I am a staff of Road Transport Employee”. In paragraph 3 he said “I was issued a with a staff identity card by the above mentioned union (Rtean)”. It is observed that the identity card the 1st Claimant alleged to have lost is the staff identity card. What the Defendants have challenged is membership and what ARTICLE 4, Part A paragraph (iii) of the constitution of the 1st Defendant require as evidence of membership is membership identity card or certificate. The 1st Claimant also deposed in the affidavit that he was a staff of Road Transport Employee. The said employer cannot be the 1st Defendant association in this case. It is also observed that no photocopy or sample of the alleged identity card was attached to the affidavit. Let me make the point that the said affidavit is not enough evidence of having been issued a membership identity card of 1st Defendant or registration with the 1st Defendant. The Claimants could not satisfy this court that the 1st Claimant is a member of the 1st Defendant. As for the 2nd Claimant, he has shown his own membership identity card. The Defendants are not even disputing the fact that the 2nd Claimant was a member of the association. The Defendants’ case is that he had been expelled from the Association. The 2nd Claimant said he was not expelled and went further to give some activities he performed for the association even after the date the Defendants alleged he was expelled. Exhibit 00C.3 exhibited by the Defendants is the expulsion letter. It was dated 30th June 2016 and addressed to the 2nd Claimant. It contains that the National Executive Council (NEC) of the 1st Defendant Association held a meeting on 29th June 2016 where it deliberated on allegations of gross and grave misconduct against the 2nd Claimant. The NEC resolved that the 2nd Claimant be expelled from the Association from that date. The letter also contains that the 2nd Claimant’s membership had ceased forthwith. The letter was signed by National President and the National Secretary of the Association. This document shows that the National Executive Council of the 1st Defendant association had expelled the 2nd Claimant from the Association with effect from 29th June 2016. The 2nd Claimant has said in paragraph 15 of the counter affidavit that he did not receive the letter. He said the letter of expulsion does not show on its face to have been served on him but was received by Philip Nwaigbo who is a member of the National Executive Council of the Association. On the face of the expulsion letter, it shows that it was received by one Philip Nwaigbo on 30th June 2016. Obviously, that person is not the 2nd Claimant. The Defendants have also not shown that the 2nd Claimant received the expulsion letter. However, the letter reveals quite clearly that the National Executive Council of the 1st Defendant has taken the decision to expel the 2nd Claimant effective from 29th June 2016. ARTICLE 6, Part A2, paragraph (m) of the Constitution of the 1st Defendant provides that the National Executive Council has power to impose penalties where and when found necessary on member(s). This provision gives the NEC power to take decision on discipline of members of the Association. If the NEC, pursuant to that power, had resolved that the Claimant be expelled from the association as contained in the expulsion letter, the fact that the Claimant was not served the letter does not matter. What matters is the decision taken on the 2nd Claimant’s membership by NEC and which decision would have taken effect from the date of the resolution of NEC. The 2nd Claimant has also alleged in paragraph 20 of the counter affidavit that the expulsion letter was back-dated with a view to intimidate the Claimant. The 2nd Claimant has however has not been able to dislodge the fact that NEC had a meeting on 29th June 2016 or that such a resolution expelling him from the Association was reached in the meeting. In the absence of any contrary proof from the 2nd Claimant, it seems to me that NEC of the 1st Defendant has expelled the 2nd Claimant from the Association since 29th June 2016. ARTICLE 4, Part B (ii) of the Constitution of the 1st Defendant provides that a person shall cease to be a member of the association if he is suspended or expelled from the Association. Exhibit 00C.3 shows that the 2nd Claimant had been expelled from the association by the NEC of the 1st Defendant. The implication is that he ceased to be a member of the Association from the date of the NEC meeting being 29th June 2016. The Claimants commenced this action on 20th July 2016. As at that date, the 2nd Claimant was no longer a member of the Association. The 1st Claimant could not be shown to have ever been registered as a member of the Association. I find in the result that both Claimants are not members of the 1st Defendant as at the date they instituted this action. In view of the subject matter of the questions the Claimants sought to be determined in this suit and the reliefs they claimed thereby, it is my view that the Claimants do not have the locus to bring such an action. Since the reliefs claimed would not confer any benefit on the Claimants, they do not have the requisite locus to maintain the suit. Only members of the Association could have interest in the election procedure of the 1st Defendant or in the interpretation of the constitution of the association as it affects them as members. Only members of the 1st Defendant association have the locus to institute this nature of suit. It follows that it is no longer necessary to consider whether there is a genuine case on the merits since the Claimants lack locus standi to bring this action. The case must be struck out as being incompetent. OWODUNNI vs. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt. 675) 325. Consequently, the case is hereby struck out. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge