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The Claimants instituted this action via Amended Complaint with the accompanying frontloaded documents filed on 10th April, 2015, against the defendants for the following reliefs: a. A Declaration that denying indigenes of Rivers/Bayelsa State and Claimants the rights to registration/membership violates sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Rule 3(i) of the NUPENG Constitution and Rule 15 (1) (m) and (n) of Petroleum Tanker Drivers’ Bye-Laws. b. A Declaration that subjecting Claimants and their predecessors to torture, brutality, humiliation and degrading human treatment contravenes sections 34 (a) and (b) and 35 (1) of the 1999 Constitution (as amended) c. A Declaration that denying indigenous members rights to head the union as being practiced in other depots throughout the Federation contravenes the rights of the Claimants against freedom from discrimination entrenched in section 42 of the 1999 Constitution (as amended). d. A Declaration that systematically manipulating the leadership machinery and apparatus to restrict the population of indigenous members of the union contravenes Claimants rights to freedom from discrimination enshrined in section 34 of the 1999 Constitution (as amended), Rule 3(i) of the NUPENG Constitution and Rule 15(1) (m) & (n) of the P.T.D Bye-Laws providing against polarization of the union. e. A Declaration that it is unconscionable and unjust in any modern society for indigenous members of a trade union to be excluded from the leadership and control of the union in their home States whereas their counterparts (indigenous members) in other states are in control of the union in their home states of the same Federation. f. A Declaration that it is not in the interest of justice and peace for the indigenous members of the P.T.D Branch of NUPENG in the Port Harcourt Depot, Rivers State to be excluded from the leadership, rulership, control and management of the union for 31 years, contrary to cardinal union practice common in Depots across the States of the Federation. g. A Declaration that the Claimants having been duly nominated as Caretaker Committee Members of the Petroleum Tanker Divers Branch of NUPENG (P.T.D), Port Harcourt Refinery Depot, Rivers State, are the only persons recognized and entitled as having the authority to head the Chapter. h. An Order of perpetual injunction restraining the Defendant, their Agents, servants, Privies, their successors etc. from electing and/or appointing non-indigene of Rivers and Bayelsa States as Executives of the Petroleum Tanker Drivers Branch of NUPENG (PTD), Port Harcourt Refinery Depot, Rivers State In Violation Of The Usage, convention and practice applicable to all petroleum depots all over the federation of Nigeria. The Defendant filed a NOTICE OF PRELIMINARY OBJECTION on 14th November, 2016, objecting to the hearing of this suit for incompetence and lack of jurisdiction by this Honorable court. Grounds for Preliminary Objection: 1. The Claimants have not disclosed the locus standi for commencing this suit. 2. The Claimants have not exhausted the internal dispute resolution processes under the Claimants’ .Union Constitution before commencing this action. 3. The Claimants have not exhausted the dispute settlement mechanism prescribed in Part 1 of the extant Trade Disputes Act pursuant to Section 7(3) of the National Industrial Court Act, 2006 before commencing this Suit. 4. This action is outright incompetent, the Claimants having failed to fulfill the conditions precedent to the exercise of the jurisdiction of Court in this case. In consequence thereof, this Honourable Court lacks jurisdiction to hear and determine this Suit as it is presently constituted. The defendants filed a WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION with the following ISSUE Whether the conditions precedent to the activation of this Court’s jurisdiction have been fulfilled to enable this Court to assume jurisdiction over this case. Learned Counsel A. Akambi Miss, submitted that a Court is competent and has jurisdiction in a case if, inter alia, the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; EYIOLAWI V. MAERSK LINE AGENCY NIG. LTD. & ANOR. (2010) 21 NLLR (PT.58) 154 NIC 2 162 PARA.E-F. She argued that it has been settled by this Court that intra union, inter union and group trade disputes are still governed by the provisions of Part 1 of the extant Trade Disputes Act and that this is a matter that the law provides for the initiation of dispute settlement mechanism commencing from the declaration of dispute, mediation, conciliation, arbitration and then adjudication. Furthermore, that the by virtue of the provisions of Section 7(3) of the National Industrial Court Act, 2006, the jurisdiction of the National Industrial Court on inter and intra union disputes is appellate and not original. In other words, the processes of Part 1 of the TDA must be exhausted before the intervention of the National Industrial Court can be sought. COMRADE ANTHONY AND ANOR V. COMRADE ILODUBA AND ORS. (2010)18NLLR (PT.50)229@240 PARA.D-F. It is the Defendants Counsel’s submission that, if the Court has no jurisdiction to entertain the matter, it naturally, logically and legally follows that it will not exercise its discretionary powers in favour of the Applicant. Such power will only be exercised when the parties are properly before Court. ASUZU & ANOR. v. AJEWOLE & ORS. (2009) 14 N.L.L.R (Part 39). The claimants in reaction filed what the tagged ‘CLAIMANTS/RESPONDENTS’ REPLY ON POINT OF LAW IN OPPOSITION TO THE DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION’ which was dated 22nd November, 2016. Wherein the claimants formulated one sole ISSUE Whether the Honourable Court is instilled and/or clothed with jurisdiction to entertain this suit. The Learned Counsel to the Claimant Gabriel Okpata Esq. submitted that Honourable Court is empowered by the provisions of Section 6(6) of the 1999 Constitution of the FRN as amended to hear and determine this suit. He submitted that it has been decided in a plethora of cases that the jurisdiction of a court is the dignity which the court has to do justice in a cause or complaint ,brought before it. It is the limits imposed upon the power of a validly constituted court to hear and determine issues with reference to subject matter, the parties and the relief sought. SOCIETY BIC S.A & ORS. VS. CHARZIN INDUSTRIES LTD (2014)2 S.C. (PT.) 57 @ 8586 PARAS. 35-5; NYESOM VS. PETERSIDE (2016) 7 NWLR (1512) 452 @ 514 PARAS. A-B. Claimant’s Counsel further submitted that where a preliminary objection did not deal strictly with law, there will be need for a supporting affidavit to be filed along with it. A.G FEDERATION VS. ANPP (2003) 18 NWLR (PT.851) 182 AT 207 PARAS.A-D. Contended that furthermore, that rules of court cannot override or supersede the provisions of a substantive law. ELAIGWU VS. TONG ELAIGWU VS. TONG (2016) 14 NWLR (1532) 165 AT 188-189 paras. F-A. The defendants filed their ‘DEFENDANT’S REPLY ON POINTS OF LAW TO CLAIMANTS AFFIDAVIT AND WRITTEN ADDRESS DATED 22ND DECEMBER, 2016 ‘(filed on 13th December, 2016 and dated 8th December, 2016). In response to the Claimants/Respondents’ submission at Paragraphs 3.7 and 3.8 of their written address, counsel submitted that, it is still mandatory for inter and intra union disputes such as in this case to go through the settlement process of Part 1 of the Trade Disputes Act, Cap. T8, LFN 2004; ASUZU & ANOR. v. AJEWOLE & ORS. (2009) 14 N.L.L.R (Part 39). Submitting further that even after the 3rd Alteration to the 1999 Constitution, the case of COMRADE ANTHONY AND ANOR v. COMRADE ILODUBA AND ORS (SUPRA) is still the law, on inter and intra union trade disputes. UZOARU & ANOR. v. DANGOTE CEMENT PLC. & ANOR. [2013] 31 N.L.L.R (PART 89) 313. On 13th December 2016 parties adopted their written addresses, adumbrated their respective positions and this matter was adjourned for this ruling. Court’s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendants application. The defendants grouse is that the Claimants have not disclosed their locus standi for commencing this suit, neither have they exhausted the internal dispute resolution processes under the Claimants’ .Union Constitution or the dispute settlement mechanism prescribed in Part 1 of the extant Trade Disputes Act pursuant to Section 7(3) of the National Industrial Court Act, 2006 before commencing this action, thereby making this action outright incompetent for failure to fulfill the conditions precedent to the exercise of the jurisdiction of Court in this case. In consequence this Honourable Court lacks jurisdiction to hear and determine this Suit. The claimants in rebuttal simply refuted the objection maintaining that they possess the requisite locus standi and that they had attempted ADR and that had failed. The defendants in their written address made heavy weather of the contention that the claimants had not subjected their dispute to the dispute settlement mechanism prescribed in Part 1 of the extant Trade Disputes Act pursuant to Section 7(3) of the National Industrial Court Act, 2006. For that reason I shall address this point first before the question of locus standi per se. The substratum of this issue is whether or not the jurisdiction of this court to entertain this matter is original, now Section 254(C)1 of the 1999 Constitution as amended provides; Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- relating to or connected with any labor, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labor, employee, worker and matters incidental thereto or connected therewith; relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labor Act, Employees' Compensation Act or any other Act or Law relating to labor, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws; relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto; relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labor, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine; (j) Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from; relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from; trade union dispute or employment dispute as may be recorded in a memorandum of settlement; trade union constitution, the constitution of an association of employers or any association relating to employment, labor, industrial relations or work place; Furthermore, Section 7 (1) of the National Industrial Court Act 2006, provides: “The Court shall have and exercise exclusive jurisdiction in civil causes and matters- (a) relating to – (i) labour, including trade unions and industrial relations; and (ii) environmental and conditions of work, health, safety and welfare of labour, and matters incidental thereto (b)..... (c) relating to the determination of ant question as to the interpretation of- (i)..... (ii)..... (iii) ... (iv) any trade union constitution This means that this court has the exclusive jurisdiction to determine civil clauses and matters relating to trade unions by Section 254 (1) of the 1999 Constitution and Section 7(1) (a) and (c)(iv) of the National Industrial Court Act 2006. The jurisdiction of this court is subject matter based. The defendants have argued that the claimants are required to go through the procedure of mediation, conciliation and arbitration provided in Part 1 of the Trade Dispute Act Cap T8 LFN 2004. Section 48 of the Trade Dispute Act Cap T8 LFN 2004 provides that “trade dispute means any dispute between employers and workers or between workers and workers which is connected with employment or non employment, or terms of employment and physical condition of work of any person”. The claimants’ reliefs are as follows’ a. A Declaration that denying indigenes of Rivers/Bayelsa State and Claimants the rights to registration/membership violates sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Rule 3(i) of the NUPENG Constitution and Rule 15 (1) (m) and (n) of Petroleum Tanker Drivers’ Bye-Laws. b. A Declaration that subjecting Claimants and their predecessors to torture, brutality, humiliation and degrading human treatment contravenes sections 34 (a) and (b) and 35 (1) of the 1999 Constitution (as amended) c. A Declaration that denying indigenous members rights to head the union as being practiced in other depots throughout the Federation contravenes the rights of the Claimants against freedom from discrimination entrenched in section 42 of the 1999 Constitution (as amended). d. A Declaration that systematically manipulating the leadership machinery and apparatus to restrict the population of indigenous members of the union contravenes Claimants rights to freedom from discrimination enshrined in section 34 the 1999 Constitution (as amended), Rule 3(i) of the NUPENG Constitution and Rule 15(1) (m) & (n) of the P.T.D Bye-Laws providing against polarization of the union. e. A Declaration that it is unconscionable and unjust in any modern society for indigenous members of a trade union to be excluded from the leadership and control of the union in their home States whereas their counterparts (indigenous members) in other states are in control of the union in their home states of the same Federation. f. A Declaration that it is not in the interest of justice and peace for the indigenous members of the P.T.D Branch of NUPENG in the Port Harcourt Depot, Rivers State to be excluded from the leadership, rulership, control and management of the union for 31 years, contrary to cardinal union practice common in Depots across the States of the Federation. g. A Declaration that the Claimants having been duly nominated as Caretaker Committee Members of the Petroleum Tanker Divers Branch of NUPENG (P.T.D), Port Harcourt Refinery Depot, Rivers State, are the only persons recognized and entitled as having the authority to head the Chapter. h. An Order of perpetual injunction restraining the Defendant, their Agents, servants, Privies, their successors etc. from electing and/or appointing non-indigene of Rivers and Bayelsa States as Executives of the Petroleum Tanker Drivers Branch of NUPENG (PTD), Port Harcourt Refinery Depot, Rivers State In Violation Of The Usage, convention and practice applicable to all petroleum depots all over the federation of Nigeria. And translate to a situation where the claimants are complaining that without being permitted to register or become members of the defendants union, this relief is somewhat suspect as the claimants maintain that they are in-fact members of the union but I shall come back to this, being subjected to inhuman treatment and humiliation, deprived from emerging as heads of union, through inter alia systematic manipulation the claimant have been deprived of their rights under the constitution, the NUPENG Constitution and the Petrol Tanker Drivers By-Laws, to which they seek various declarations including that the action of the defendants in excluding the claimants for 31 years is contrary to depot practice and that the claimants are entitled and are the only persons with authority to so head a union in the Depot. The claimants are also asking for a perpetual injunction restraining the defendants from election or appointing any other to head their branch of the union. I find that the claimants are complaining that in breach of the constitutional provisions, the procedure provided in the Union Constitution, and the Petrol tanker Drivers Bye Laws the defendant have prevented the claimants from emerging as union heads. The claimants are therefore challenging their exclusion for union leadership by unconstitutional means. I find that this matter is not a trade dispute within the interpretation of the TDA, as to require subjecting the matter to Part 1. I find, instead that it is a matter squarely within the realm of Section 254 C (1) (d) of the 1999 CFRN as amended and Section 7 (a) (i) and (c) of NICA 2006 and as such the claimant can access this court directly. See the unreported cases of NICN/LA/153/2011 COMRADE OKANDEJI FIDELIS Vs. COMRADE IGWE ACHUZIE & ANOR delivered on the 18th April 2012, and NICN/LA/26/2012GEORGE UZOARU & ANOR Vs. DANGOTE CEMENT PLC & ANOR delivered on 25th May 2012. It is also necessary to bear in mind that seven (7) of the claimants eight (8) reliefs are for declaratory orders. Now to the issue of Locus standi, the defendant maintains that the claimants have not disclosed their locus standi to institute this matter. The position of law is as was stated in the case of AJAYI Vs. ADENIYI [2012] 11 NWLR (pt. 1310) page 137 at 175 para E-F; 176 para G-H. “Locus standi is the Legal right of a party to an action to be heard in litigation before court of law or a tribunal. The term includes the legal capacity of instituting or commencing an action in a court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. The issue of locus standi is a condition precedent to the determination of a case on merit”. The case went on hat “where a plaintiff has no locus standi to bring an suit, the suit becomes incompetent and the court lacks jurisdiction to entertain it, the only order the court can make in the circumstances is that of dismissal”. The defendants have argued that in determining the issue of locus standi the court is required to look at the claimant’s pleadings, whereas the claimant arguing relying on AJAYI Vs. ADEBIYI [2012] 11 NWLR 138 relying the dictum of Adekeye JSC at page 180 para C “the reason veing that the issue of jurisdiction can be raised at anytime. In addition, the relevant things to be considered by the court in determining issues of jurisdiction are the facts as deposed to in affidavit, the writ of summons and the statement of claim where one has been filed and served” in a bid to make a case for the consideration of their affidavit. The use of the word “affidavit” next to the word “writ of summons” lend to the argument that consideration may have been made to affidavits as in originating processes particularly as the sentence goes on to mention “a statement of claim where one is filed and served”, furthermore earlier in the judgement particularly in ratio 16 at page 152 and at page 181-182 the court lists the relevant documents, “depending on what is available” to include (c) by a motion supported by affidavits giving full facts upon which reliance is placed. Also worthy of consideration is the following legal position; The Supreme Court has stated time without number that in determining the competence of a suit; WAEC V. AKINOLA OLADIPO AKINKUNMI [2008] LPELR-3468(SC); [2008] 9 NWLR (PT. 1091) 151 SC; [2008] 4 SC 1 held that, the determining factor is the plaintiff’s claim. However, it is not the manner in which the claim is couched, nor the categorization given to the claim by the defendant, that matters; what matters is that the Court has the duty to carefully examine the reliefs claimed to ascertain what the claim is all about. And by ALHAJI TSOHO DAN AMALE V. SOKOTO LOCAL GOVERNMENT & ORS [2012] LPELR-7842(SC), referring to ADEYEMI V. OPEYORI [1996] 10 SC 31, “the appellant’s claim should determine the nature of the suit and a fortiori its competence”. However, TAOFK DISU & ORS V. ALHAJA SILICATE AJILOWURA [2006] LPELR-955(SC); [2006] 14 NWLR (PT. 1000) 783; [2006] 7 SC (PT. II) 1, referring to IMADE V. MILITARY ADMINISTRATOR EDO STATE [2001] 6 NWLR (PT. 709) 478, held that where the opponent is challenging the capacity of a party to sue i.e. its locus, a statement of defence is very necessary in order to assist the Court in deciding the competence of the case before it. Having mentioned all this “The guiding principles to determine whether a person has locus standi or not are: he must be able to show that his civil rights and obligations have been or are in danger of being infringed; The fact that a person may not succeed in the action is immaterial; Whether the civil rights and obligations have been infringed depends on the particulars of the case; The court should not give an unduly restrictive interpretation to the expression locus standi”. AJAYI Vs. ADENIYI (Supra) Pp 175-176, paras G-A. The case went on to state that the tests for determination of the locus standi of a person are : The action must be justiable There must be a dispute between the parties, There must be a dispute between the parties. AJAYI Vs. ADENIYI (supra) P.176 paras A-C. Also see EGHAREVBA & ORS. v. SSAUTHRIAI & ORS. (2014) 42 NLLR (PT. 129) 137 NIC @ 143 CHARLES v. GOVERVOR OF ONDO STATE (2013) 2 NWLR (PT. 1338) 294 @ 309. In the instant case the claimants grouse is that they are union members and the defendants have contravened both the Constitution of the Federal Republic, and the constitution of their Union as well as their Bye Laws in depriving a section of the union members from holding certain posts in the union. And from the statement of facts and complaint I find that the claimants have a justiciable interest and have also raised a question of having suffered injury in respect of which they ought to be heard. I am fully aware that in determining this application the court is to refrain from delving into the substantive issue and this stage and I am also very much aware that the fact that the claimant may not succeed in this action is of no moment in determining jurisdiction. For the reasons given above the preliminary objection fails and is hereby dismissed, this matter is to proceed to trial accordingly. I make no order as to costs. This is the court’s ruling and it is entered. .................................... Justice E. N. Agbakoba