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RULING. By motion on notice for preliminary objection dated 25th day of October 2017 and filed on the same day, the 2nd to 10th Defendants/Applicants are praying for:- 1. An order striking out this suit for lack of jurisdiction whereas the conditions precedent to filing the complaint have not been satisfied; and/or 2. An order striking out this suit for, respectively failure to disclose a reasonable cause of action as well as being malicious vexatious and thereby constituting a gross abuse of the process of this Honourable Court. 3. Any further or other order(s) as the Honourable Court may deem fit to make in the circumstances of this suit in the cause of justice. In moving the application before the Court F. Ademola, Esq; Counsel for the applicant informed the court that the application was brought pursuant to section 2 and 3 of the Trade Disputes Act, Schedule 3 of the Constitution of PENGASSAN, 2013 and order 17 of the National Industrial Court of Nigeria, (Civil Procedure) Rules 2017. The preliminary objection is supported by an affidavit. Counsel relied on all the averments contained therein. A written address was also filed which was adopted by Counsel as his oral argument. In the affidavit in support of the preliminary objection, it was stated that this case is an intra-union dispute as contemplated under Trade Dispute Act, being an internal dispute between members of Petroleum Equalization Fund (Management) Board Branch of the 1st Defendant. It was also averred that Trade Dispute Act has provided for sundry methods of dispute resolution in such circumstances which have not been complied with before the commencement of this suit. It was stated that Claimant’s case is predicated on the provisions of the Constitution of the Petroleum and Natural Gas Senior Staff Association 2013, which regulate the relationships, rights and responsibilities of its members and organs. It was also averred that Schedule 3 of the constitution of Petroleum and Natural Gas Senior Staff Association 2013, (hereinafter referred to as the ‘PENGASSAN Constitution’) contains provisions for the resolution of internal disputes such as those in the present suit. It was stated that the Claimants in this case have not exhausted the procedure provided for resolution of internal disputes before commencing this suit. In the written address the Counsel for the Defendants/Applicants submitted two issues for determination: to wit: 1. ‘‘Whether this Court this Court has the jurisdiction to entertain this suit where the conditions precedent to its commencement have not been satisfied’’. 2. ‘‘Whether this action as presently constituted discloses any reasonable cause of action; and is not a gross abuse of Court process’’. In arguing issue one, F. Ademola, Counsel for the Defendants/Applicants submitted that this court lacks jurisdiction to entertain this suit as it is presently constituted. Counsel advanced two reasons why this Court lacks jurisdiction to entertain this suit. Firstly, this case deals with an intra-union dispute as contemplated in section 2(1) of the Trade Unions Act. Counsel contended this section has prohibited entertaining this suit until it conforms to Trade Dispute Act. Counsel continued his submission by referring to the case of COCA-COLA VNIG. LTD AKINSANYA (2013) 18 NWLR (pt.1386) 255, relying on this authority, counsel submitted that this Court is bound by the Golden Rule of interpretation in interpreting the provisions of Trade Dispute Act i.e the words should be construed according to their natural meaning, unless such a construction would either render them senseless, or would be opposed to the general scope and intent of the instrument, or unless there be some very cogent reason of convenience in favour of a different interpretation. Secondly, It is contended that from the statement of claim and oath in support of this suit, the Claimants copiously and religiously relied on the Constitution of the Petroleum and Natural Gas Senior Staff Association (PENGASSAN) 2013, as the principal foundations fons et origo of their claims and admitted same as the Supreme binding legislation with respect to membership. It is submitted that the constitution as referenced by the Claimants, is the charter embodying all terms and conditions of their relationship and co-existence within the Association known as the 1st Defendant and such charters are promulgated to be final, binding and supreme over all its members with reference to membership in such Association. Counsel submitted that the Constitution of PENGASSAN as approved and registered with Registrar of Trade Unions under the Trade Unions Act provide specifically for procedure for internal dispute resolution of issues such as the content of claim in this suit. In support of this contention counsel relied on Schedule 3 page 154 of the constitution of the Petroleum and Natural Gas Senior Staff Association 2013, most specifically clauses 3.0 to 3.8. It is the submission of counsel that from the constitution which the claimants derived their locus standi has provided series of steps to be followed to internally resolved dispute before instituting an action, which the claimants did not complied with before stampeding this court. According to counsel contrary to the claimant’s averment in paragraph 30 of their statement of claim, this Honourable Court is not their only hope as there are other procedures as encapsulated by their constitution which they have not complied with, and therefore filing of this suit at this time is premature, pre-emptive and ill-conceived at this time, a classical case of putting the cart before the horse. On this submission counsel relied on ADEBAYO V OGUN STATE SPORT COUNCIL (2005) 45 WRN 172. It is the contention of counsel that parties cannot approbate and reprobate at the same time, and where the claimants seek to take benefit from an enactment or legislation (whether statutory or not), they must be prepared to also take the responsibilities contained thereat, except if, when and where they seek to quash or overturn the entire constitution of PENGASSAN 2013, which is not the case or purpose of this suit. Counsel submitted that the claimants cannot pick and choose for this Honourable Court which aspects of their constitution to choose, when only a comprehensive consideration of the constitution can do Justice to this case. On this submission counsel relied on FGN V OSHIMOLE (2004) 3 NWLR (PT.860) 305, TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517 Counsel submitted that the law is trite where a statute has provided for a legal line of action for the determination of an issue, an aggrieved party must exhaust all the remedies in that statute before proceeding to the court. On this proposition counsel relied on AKINTEMI & ORS V ONWUMECHI & ORS (1985) 16 NSCC (PT.1) 61; EGUAMWENSE V AMAGHIZEMWEN (1993) 9 NWLR (PT.315) 1; ARIBISALA & ANOR. V OGUNYEMI & ORS. (2005) 6 NWLR (PT.921) 212; AKINTOKUN V LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2014) LPELR-22941 and ALADEJOBI V NIGERIAN BAR ASSOCIATION (2013) LPELR-20940. Counsel urged the court to in the interest of justice strike out this suit since it is ill-advised attempt at obtaining a judicial relief through an improper use of legal procedure. On issue two, counsel submitted that abuse of court process is a concept that involves circumstances and situations of possibly infinite variety. The term generally connotes the improper use of the judicial process by a party to interfere with due administration of justice or for purposes of causing irritation or annoyance to his opponent. Simply put, it connotes proceedings which are mala fides, frivolous, vexatious, or oppressive, on this submission Counsel place reliance on AMAEFUNA V STATE (1988) 2 NWLR (PT.75) 156 @ 177, SARAKI V KOTOYE (1992) 9 NWLR (PT.264) 156@ 188 and SEVEN UP BOTTLING COP. LTD V ABIOLA & SONS LTD (1996) 7 NWLR (PT.463) 714. AFRICA RE. CORPORATION V JDP CONSTRUCTION NIGERIA LTD (2003) 13 NWLR (PT.838) 609 @ 635-636, CBN V AHMED (2001) 11 NWLR (Pt.724) 369. In concluding his submission counsel urged the court to strike out the entire suit with coasts against the Claimants for this gross abuse and misuse of the processes of this Honourable court. CLAIMANT’S OPPOSITION In opposition to this application the Claimants/Respondents filed a 4 paragraphs counter-affidavit and a written address. Baba Isa, Esq; Counsel for the Claimants/Respondents while arguing in opposition to this application relied on the 4 paragraphs counter-affidavit filed to counter the affidavit in support of the preliminary objection. Counsel also adopted the written address as his argument on the application. In the counter-affidavit, it was stated that in a bid to activate the internal dispute resolution mechanism stipulated in schedule 3 of the Constitution of the Petroleum and Natural Gas Senior Association of Nigeria (PENGASSAN) 2013, the Claimant vide exhibit W1, which is a letter dated 4/12/15, written to the 1st Defendant to complain and request for the intervention of the leadership of the 1st Defendant, but the said Defendants acknowledge the executive of the Branch, PEF(M)B to continue in office, thereby completely ignored the complaint of the Claimants. It was stated instead of addressing the complaint, the 1st Defendant vide exhibit W2, wrote to the Petroleum Equalization Funds Management Board to continue to recognize the executive officers whose tenure had expired. It was averred that the internal dispute resolution mechanism has been activated and failed before this suit was commenced. In the written address adopted in the course of oral argument, counsel submitted two issues for determination, to wit; 1. ‘‘Whether this court has the jurisdiction to entertain this suit where the conditions precedent to its commencement have not been satisfied’’. 2. ‘‘Whether this action as presently constituted discloses any reasonable cause of action; and is not a gross abuse of court process’’. In arguing the issue for determination, Counsel submitted that the dispute between the Claimants and the Defendants is not a ‘’Trade Dispute’’ as submitted by the Defendants/Applicants. Counsel referred to definition of Trade Dispute in section 1(2) of the Trade Dispute Act which define ‘dispute’ as ‘‘Trade dispute’’ and Section 48 define ‘Trade Dispute’ as ‘‘.. any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or terms of employment or physical conditions or work of any person..’’. counsel went on to submit that the Court of Appeal has given judicial anointing to the definition in section 48 of Trade Disputes Act., in the case of NATIONAL UNION OF ROAD TRANSPORT WORKERS V OGBODO(1998) 2 NWLR (Pt.537) 189, in that case the Court of Appeal listed what make up dispute a trade dispute as follows:- 1. There must be a dispute 2. The dispute must involve a trade 3. The dispute must be between workers and workers and/or workers and employers Counsel submitted that based on the decision of the Court of Appeal controversy bothering on election cannot come within the definition of Trade Dispute. Counsel went on to submit that dispute arising from election, selection, or appointment of persons in a workers association that goes contrary to the constitution of the said association cannot be said to be a trade dispute. Counsel submitted such a dispute is not connected with the employment or non-employment or the terms of employment or physical conditions or work of any person. On internal dispute resolution mechanism it is the contention of counsel that the claim that schedule 3 of PENGASSAN Constitution has not been complied with is a ruse or at best a misguided submission. Counsel referred the Court to schedule 3 of the PENGASSAN Constitution, paragraphs 3.2A, 3.3A and 3.4A, and submitted that vide exhibit W1 of the counter-affidavit, the Claimants have complied with the internal dispute resolution mechanism by complaining to the Central Working Committee of the Association, which failed or neglected to address the complaint. Counsel submitted Claimants were left with no option than to seek redress in court. Counsel submitted that the claimants did complain to branch because of expiry of tenure of office of the 2nd to 9th Defendants /Applicants which made them unqualified to run the affairs of the branch. Counsel submitted it is ludicrous ironic that the Defendants who failed, neglected and refused to resolved the issue via mediation, conciliation or arbitration when the Claimant activated the processes are the ones raising the issue in this matter. According to Counsel this like standing the truth on its head. It is the contention of Counsel that assuming without conceding that the Defendant/Applicants’ definition of ‘trade dispute’ is valid, their preliminary objection on this count will still fail in the face of the incontrovertible fact and evidence that, indeed, the Claimants did activate and exhaust the internal dispute resolution as provided by PENGASSAN constitution before embarking on litigation. On issue two, Counsel referred to the case of TONIQUE OIL & ANOR. V UBA (2016) LPELR-40071(CA), PEENOK INVESTMENT LTD V HOTEL PRESIDENTIAL LTD (1982) 12 SC, OSHOBOJA V AMUDA (1992) 6 NWLR (PT 250) 690 @ 702, where the Supreme Court defined cause of action and reasonable cause of action. Thus; ‘‘the words ‘’cause of action’’ has been defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. On this submission Counsel referred to BELLO V AG OYO STATE (1986) 5 NWLR (Pt.45) 828, EGBE V ADEFARASIN (1987) NWLR (PT.47) THOMAS V OLUFOSOYE (1986) 1 NWLR (PT.18) 669. Counsel submitted going by the definition of cause of action and reasonable cause of action that the Claimants’ have given facts in their facts establishing cause of action. On abuse of court process Counsel submitted that the Claimants have not abused the process of this Court. In concluding argument Counsel urged the Court to dismiss the preliminary objection as lacking in merit. REPLY ON POINTS OF LAW Counsel for the Applicants started his argument on reply on points of law by contending that the averments in the counter-affidavit are inadmissible, in that in law affidavit should contain only facts which the deponent states from his personal knowledge or from information which he believes to be true. Counsel continued his submission that affidavit should not contain conclusion, prayers or arguments. Where affidavit violates these rules, the affidavit will not be admissible. Counsel relied on section 115 of the Evidence Act and the case of Government of Lagos State V OJUKWU (1986) 1 NWLR (Pt.18) 621. Counsel submitted the averment in paragraph 4(a) to (p) of the counter-affidavit violate the provision of section 115 of the Evidence Act, the averments therein are hearsay they should be struck out. Counsel submitted if the averments in paragraph 4(a) to (p) are struck out for offending evidence Act there will be left nothing to counter the affidavit in support. Counsel urged the Court to accept the affidavit in support as unchallenged and uncontradicted. On this submission counsel relied on ADEJUMO V AYANTEGBE (1989)3 NWLR (Pt.110) 417. Counsel also submitted that contrary to submission of Counsel for the Claimants this matter is subject to compulsory arbitration or conciliation as prescribed by section 7(3) of the National Industrial Court Act 2006 and part 1 of the Trade Dispute Act. Counsel submitted every matter involving labour, including trade unions and industrial relations must go through the process stipulated in Trade Disputes Act. Counsel also submitted that the definition in section 48 of the Trade Disputes Act include intra-union Disputes. Counsel submitted the present intra-union dispute at hand, is connected with employment of workers. This is because workers become members of trade unions by virtue their employment lawfully expires and cease to be members when their employment. It is the contention of counsel that trade unionism is inseparably connected with employment of the person involved as the employment is the locus standi to becoming a member of any trade union. On this submission counsel relied on sections 12 and 54 of the Trade Union Act. Counsel further submitted that this court has in litany of cases held that the parties in an intra union dispute are compulsorily required to go through the processes stipulated in part 1 of TDA. Some of the cases are: COMRADE UDEAGALANYA ANTHONY & ANR. V COMRADE FRANCIS ILODUBA & 11 ORS. Unreported suit No. NIC/36/2008 delivered on January 20, 2009, ASSOCIATION OF SENIOR STAFF OF BANKS INSURANCE AND FINANCIAL INSTITUTIONS (ASSBIFI) V UNITED BANK FOR AFRICA PLC & ORS. Unreported suit No. OKAFOR & ANOR. V ANTHONY C. UDGOZOR & 44 ORS. Unreported suit No. NIC/6/2007 delivered March 111, 2008. Counsel for the Applicant submitted that the Claimants did not exhaust the processes stipulated in the constitution of the 1st Defendant/Applicant. Counsel contended Claimants did not comply with steps provided in schedule 3 of PENGASSAN Constitution 2013 for resolution of their grievances. Counsel submitted the provisions were clear and unambiguous and should be given their plain meaning. PRELIMINARY OBJECTION BY 1ST AND 11TH DEFENDANTS The Counsel for the 1st and 11th Defendants vide notice of preliminary objection dated 6/11/17 and filed on 8/11/17, is praying for:- 1. An order striking out this suit 2. An order setting aside the amended complaint for irregularity 3. Such order or orders as the Honourable court may deem fit to make in the circumstances. The grounds for seeking the above orders are;- 1. The conditions precedent to the institution of this suit was not met. Particulars a. Claimants did not exhaust the internal dispute resolution mechanism of PENGASSAN before filing this suit. b. The subject matter of this suit did not go through mediation conciliation or arbitration before this suit was filed in this court. 2. That this Honourable court has no jurisdiction to entertain this suit. Particulars. a. The suit has not been brought by due process and is therefore incompetent. b. By the combined effect of section 7 (3) of the National Industrial Court Act 2006 and section 4 of trade dispute Act this suit is not ripe for hearing. c. Numerous authorities abound to the effect that the jurisdiction of this court is only activated when a case such as this has gone through mediation, conciliation or arbitration. 3. There has been fundamental non-compliance with Order 3 Rule 1 of the Rules of this Honourable Court Particulars i. By order 3 rule 1 of the rules of this court all complaints must be in form 1. ii. It is mandatory for suits involving intra or inter union disputes to be headed as provided in note (a) to form 1. iii. This suit involves an intra-union dispute. iv. Non-compliance has led to a miscarriage of justice. This application was brought pursuant to Order 5 Rule 2 and Order 11 Rule 1(3) of the National Industrial Court Rules 2007 and the practice direction dated 15th June 2012 and the inherent jurisdiction of the court. However, during the oral argument counsel for the applicants applied for substitution of order 17 rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 with Order 11 Rule 1(3) of the National industrial Court Rules 2007 pursuant to which this application was brought. The application is supported by an 8 paragraphs affidavit. In line with rules of this court a written address was filed along with the notice of preliminary objection. Counsel for the applicants relied on all the averments contained in the affidavit in support and adopted the written address as his argument. In the affidavit in support it was stated that the Claimants are members of the 1st Defendant, a registered trade union, which has internal dispute resolution mechanism for resolving dispute among its members as enshrined inn schedule 3 of the Constitution of the union. It was stated that vide exhibit EU 1, the 1st Claimant was suspended by his branch from all activities of the branch, in February 2014. It was also stated that the 1st Claimant took no steps to set aside his suspension by his branch of PENGASSAN or to report to or ignite the internal dispute resolution mechanism of the association. Rather vide exhibit EU 2, the 1st Claimant commended the executive of the branch and regretted his actions. It was averred that on 30/11/2015, the 1st Claimant stormed the venue of the branch elections at Abuja with others and disrupted it. As a result of the actions of the 1st Claimant on that day a fracas ensued and the returning officer i.e the 11th Defendant aborted the elections. It was averred that at all material times the 1st Claimant had his office in Lagos and was based there and no business at the venue of the elections at Abuja. It was further stated that arrangement were made to the knowledge of the 1st Claimant for members of PEF (M) B branch PENGASSAN outside Abuja to vote in the elections electronically without leaving their stations; it was stated that PENGASSAN has an internal dispute settlement mechanism or a process for resolving disputes among its members enshrined in Schedule 3 of her constitution as amended. It was averred that none of the Claimants exhausted or indeed activated the said internal dispute mechanism before instituting this suit. It was stated that the dispute has not gone through any of the processes stipulated in part 1 of the Trade Dispute Act i.e mediation, conciliation or arbitration. It was stated that the dispute between the parties in this suit is an intra-union dispute. In the written address counsel for the applicant submitted two issues for determination, to wit:- i. ‘‘Whether this court has the jurisdiction to entertain this suit in view of the facts and law placed before this Honourable Court’’. ii. ‘‘Whether this case ought to be set aside for non-compliance with the rules of this Honourable Court’’. ARGUMENT ISSUE ONE Counsel submitted this Court lacks jurisdiction to entertain this suit in view of the facts placed before the Court. According to Counsel this suit did not come before this court with due processes of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Counsel referred to section 7(3) of the National Industrial Court Act 2006, Section 1(2) of Trade Disputes Act and submitted that cases such as this must go through process of part 1 of Trade Dispute Act i.e arbitration, conciliation or mediation. Counsel contended that section 4 (2) of Trade Dispute Act enjoined parties to exhaust all arrangements for amicable settlement of the dispute and where no arrangement is in place to submit the dispute to mediation. Counsel submitted there is arrangement made vide Schedule 3 of PENGASSAN constitution. Counsel contended the condition precedent has not been complied with before instituting this action. The failure to exhaust Schedule 3, this Court cannot exercise jurisdiction. Counsel submitted that importance of jurisdiction cannot be overemphasized FAYEMI V L.G.S.C. OYO STATE (2005) 6 NWLR (PT.921) 280. Counsel submitted that this court has held that matter involving intra union disputes must go through conciliation and arbitration under part 1 of TDA, UPPPPW V THOMAS WYATT NICN/LA/52/2013, delivered on 24th February 2014; AUPCTRE V FCDA & ORS. Unreported suit No. NIC/17/2016 DELUVERED 23RD November 2007. These authorities decided that it is mandatory to exhaust arbitration, conciliation processes before approaching this court for redress. ISSUE TWO On issue two, Counsel submitted that abuse of court process is a concept that involves circumstances and situations of possibly infinite variety. The term generally connotes the improper use of the judicial process by a party to interfere with due administration of justice or for purposes of causing irritation or annoyance to his opponent. Simply put, it connotes proceedings which are mala fides, frivolous, vexatious, or oppressive, on this submission Counsel place reliance on AMAEFUNA V STATE (1988) 2 NWLR (PT.75) 156 @ 177, SARAKI V KOTOYE (1992) 9 NWLR (PT.264) 156@ 188 and SEVEN UP BOTTLING COP. LTD V ABIOLA & SONS LTD (1996) 7 NWLR (PT.463) 714. AFRICA RE. CORPORATION V JDP CONSTRUCTION NIGERIA LTD (2003) 13 NWLR (PT.838) 609 @ 635-636, CBN V AHMED (2001) 11 NWLR (Pt.724) 369. In concluding his submission counsel urged the court to strike out the entire suit with coasts against the Claimants for this gross abuse and misuse of the processes of this Honourable court. It is submitted that the 1st Defendant is a registered trade union by virtue of section 5(7) of the Trade Unions Act and part C of the third schedule thereto. Counsel submitted by Order 3 Rule 1, the Claimants are required to indicate on the face of the complaint that this dispute is an intra union Dispute. Counsel referred to the General form of complaint form 1. Counsel submitted the use of the word ‘shall’’ in a provision import a command or compulsion or is merely directory depends on the context in which it was used. Counsel relied on AMALGAMATED TRUSTEES LTD V ASSOCIATED DISCOUNT HOUSE LTD (2007) 15 NWLR (Pt.1056) 118. According to Counsel the word ‘shall’ in Order 3 Rule 1 of the Rules of this Court import compulsion or a command and not merely directory. Counsel submitted that non-compliance with Order 3 Rule 1 of the Rules of this Court as to heading of complaint is not a mere irregularity that can be ignored with a wave of hand. Counsel contended it has led or likely to mislead to miscarriage of justice, making this Court to proceed without jurisdiction. According to counsel the importance of the heading prescribed is to ensure that conditions precedent are complied with i.e the processes of arbitration, conciliation or mediation are complied with. Counsel submitted this is a proper case to set aside the complaint for irregularity pursuant to Order 5 Rule 2. COMPLAINANTS OPPOSITION In opposing the preliminary objection, the Claimants filed a 6 paragraphs counter-affidavit wherein it was averred that the suspension of the 1st Claimant did not follow due process as schedule 2 of the Constitution of PENGASSAN 2013, was not followed particularly sub-rules 2.2.1-2.2.7, which set out the steps by step procedure to be explored in the discipline of an erring member or elected officer of the association was not adhered to before suspension of the 1st Claimant was invoked. It was stated the contained in schedule 2 were completely ignored by the branch executive committee of the association. It was also stated that the 1st Claimant was not given statutory notice in the circumstance to inform him of the charges against him and place of the disciplinary hearing of the charges against him. The 1st Claimant denied ever commending the executive of any branch for suspending him as per exhibit EU 2. The 1st Claimant denied going to the venue of election to disrupt the election, rather he went to the venue of the election to exercise his right to vote. It was stated that the 11th Defendant was of the Kaduna Zone of 1st Defendant and he was the returning officer of the botched elections of PEF(M)B Brach of the 1st Defendant scheduled to have taken place on 30th November 2015 in line with provisions of Rule 11.1 of the PENGASSAN Constitution, 2013. It was averred that the electoral Committee was set up and the 10th Defendant was appointed as the Chairman of the Committee with mandate to conduct and manage process of the said election in line with PENGASSAN Constitution. It was stated that in the preliminary course of the electoral process, the electoral Committee unilaterally and without any reason so given, disqualified the candidacy of some members of the branch and also cancelled the election for their selfish interest. It was stated that the Claimant have complied with internal dispute resolution mechanism of the 1st Defendant as enshrined in Schedule 3 of PENGASSAN Constitution 2013, this was done vide exhibit W1. It was stated instead of the Defendants taking steps to resolved the matter, the Defendants vide exhibit W2, decided to write to Petroleum Equalization Funds to recognise the Executive Officers of PEF(M)B branch despite the fact that their tenure has expired. It was averred that the internal dispute resolution mechanism has been activated but failed, thus why this action was commenced by the Claimants. The Claimants filed a written address and adopted same in the course of oral argument as their argument in opposition. In the written address Counsel identified two issues for determination. To wit: 1. ‘‘Whether this Court has the jurisdiction to entertain this suit in view of the facts and law placed before this Honourable Court’’. 2. ‘‘Whether this case ought to be set aside for non-compliance with the Rules of this Court’’. In arguing issue one Counsel submitted that the dispute between the Claimants and the Defendants is not a trade Dispute as submitted by the Defendants. Counsel referred to section 1(2) of the trade Dispute Act which defines ‘‘dispute’’ as ‘‘trade dispute’’ and section 48 which defines ‘trade dispute’ as ‘‘… any dispute between employers and workers or between workers and workers, which is connected with the employment of non-employment, or the terms of employment or physical conditions or work of any person..’’. Counsel referred to the case of NATIONAL UNION OF ROAD TRANSPORT WORKERS V OGBODO (1998) 2 NWLR (Pt.537) 189, where what constitute a trade dispute was enumerated as follows: 1. There must be a dispute 2. The dispute must involve a trade 3. The dispute must be between workers and workers and/or workers and employers 4. The dispute must be connected with the employment or non-employment or the terms of employment or the physical conditions or work of any person. Counsel submitted from what the Court of appeal enumerated controversy bothering on election of association of workers is not covered by the definition of trade dispute. Counsel submitted dispute arising from an election, selection or appointment of person in a workers association that goes contrary to the constitution of the said association be said to be a trade dispute. Counsel posited that issue of election cannot come within a trade dispute. On Schedule 3 of the PEMGASSAN Constitution, Counsel submitted that the contention of the Defendants is a ruse or at best a misguided submission. Counsel submitted that exhibit W1 a letter dated 4th December 2015 addressed to 1st Defendant activated the internal dispute resolution mechanism of the 1st Defendant, but it was ignored by the Defendants. It is the contention of Counsel that instead of addressing the grievances contained in exhibit W1, the Defendants decided vide W2, to write to Petroleum Equalization Funds to continue to recognize the executive officers of PEF(M)B Branch despite the fact that their tenure has expired. Counsel expressed surprise by the Defendants’ raising issue of resolution of dispute via mediation, conciliation or arbitration, when they failed or neglected to do that when exhibit W1 was written to them. It is the contention of counsel that even if the definition trade dispute given by the Defendants is valid, their preliminary objection will still fail in that the Claimant did in fact activated internal dispute resolution mechanism vide exhibit ‘W1”. ISSUE TWO In advancing argument on issue two, Counsel submitted that vide Order 5 Rule 1 of the Rules of this Court non-compliance shall be treated as irregularity. Counsel also referred to Order 5 Rule 6(3) where Court is enjoined to apply fair and flexible procedure and shall not allow technicalities to becloud doing justice to the party based on law, equity and fairness when considering any matter before the Court. Counsel urged this Court to treat the non-compliance as irregularity. COURT’S DECISION; I have read all the documents filed by the Counsel for all the parties in this suit in respect of the two preliminary objections. I have also looked at the reliefs by the Claimants as encapsulated in their complaint and the statement of facts. In my humble vies the issues calling for resolution as per the two preliminary objections are: 1. ‘‘Whether the provisions of section 7(3) of the National Industrial Court Act 2006 and section 1(2) of Trade Disputes Act can operate to deprive this Court of jurisdiction to entertain the Claim of the Claimants before the Court’’. 2. ‘‘Whether the complaint before the Court is incompetent for non-compliance with provisions of Order 3 Rule 1 and Form 1 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017’’. 3. ‘‘Whether the Claimants action has disclosed reasonable cause of action’’. Before delving into the issues for determination, I would like to first and fore most deal with the preliminary issue raised by the Counsel for the 2nd to 10th Defendants/Applicants in the reply on points of law. Counsel submitted that paragraph 4(a) to (p) of the counter affidavit of the counter-affidavit violated the provisions of section 115 of the evidence Act 2011, in that they contain conclusion, argument and hearsay. Counsel urged the Court to strike out those averment for allegedly offending the provisions of the Evidence Act 2011. I have perused the contents of the counter-affidavit filed in opposition to the affidavit in support of the motion for preliminary objection and I could not find paragraph 4(a) to (p) in the counter-affidavit. Paragraph 4 of the counter-affidavit does not have sub paragraphs (a) to (p) as being claimed by the Applicants. In the absence of paragraph 4 (a) to (p) in the counter affidavit, the objection of the Applicants has no basis it is hereby discountenance. It must be noted that the purport of reply on points of law is to give the party entitled to it to respond to new issues arising from the submission of the Respondent. It is not an avenue for counsel to re-argue or present more superior argument in support of his earlier submissions before the Court. It is never meant to be used for embellishment of points already argued as is done by Counsel in this case. RESOLUTION OF ISSUE ONE Both Counsel for the 2nd to 10th Defendants/Applicants and 1st and 11th Defendants/Applicants are of the view that this Court lacks jurisdiction to entertain this suit as it is presently constituted due to non-fulfilment of condition precedent to invocation of the jurisdiction of this Court, in that the present dispute bothers on trade dispute that requires resolution through the internal mechanism as provided in Schedule 3 of the PENGASSAN Constitution 2013, pursuant to section 7(3) of the National Industrial Court Act 2006 and section 1(2) of the Trade Dispute Act. However, the Claimants/Respondents in their response submitted that this Court has jurisdiction to entertain this suit and that the Claimants action is not based on trade dispute to warrant the application of section 7(3) of the National Industrial Court Act 2006, Section 1(2) of the Trade Dispute Act and the provisions of paragraphs 3.0 to 3.8 of Schedule 3 of PENGASSAN Constitution. It is a long settled principle of law that jurisdiction of Court is a threshold issue which goes to the vires and the root of a case, it is imperative to have it determined first before proceeding to the substantive matter since lack of it would deprive this court the power to pronounce on the main issue. See OBIUWEUBI V CENTARL BANK OF NIGERIA [2011] 7 NWLR 465; UTIH V ONIYIVWE (1991) 1 NWLR (Pt.166) 166. This Court is being empowered by virtue of the provisions of both Section 7 of National Industrial Court Act and Section 254 C (1) of 1999 Constitution as amended also known as the third alteration to adjudicate on civil cases and matters to the exclusion of any other Court, relating to or connected with any labour, employment, trade union, industrial relations, matters arising from workplace, condition of service, health, safety, welfare of labour, employee, worker, trade dispute Act, Trade Union Act, employees compensation Act. etc. It is the position of the Defendants that the Claimants by Section 7(3) of NICA ought to have explore and exhaust the internal dispute resolution mechanism as provided for in Schedule 3 of the PENGASSAN Constitution, 2013, or go through conciliation and arbitration as provided in sections 4 and 5 of the Trade Dispute Act, before they should be given a right of hearing in this Court. For their failure to do so the Court is urged to strike out this case for being incompetent. The Claimants on the other hand argued that considering the claims before this Court, it would be seen that their claims did not raise any issue bothering on the term ‘‘Trade Dispute’’. Rather the Claims before the Court is contesting validity of suspension, extension of tenure of executive officers of the Branch of the Union as well as claims of damages for breach of right to fair hearing and exemplary damages for the injustice perpetrated against the 1st Claimant. There are legion of case law authorities enjoining Court when faced with issue of determination of its jurisdiction to have recourse to the writ of summons and statement of Claim in deciding the issue. In this case it is the compliant and the statement of facts that will be looked at to see whether or not the Court is competent to adjudicate on a case. These cases are apt on this point, BANK OF NIGERIA PLC. V. ABRAHAM (2008) 18 NWLR (Pt. 1118) 172 S.C. ONUEKWUSI & ORS V. THEREGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH [2011] 6 NWLR 341; ADEYEMI & ORS VOPEYORI Supra; Having said that, now the competence of a Court is hinged on these age long conditions as enunciated in the locus classicus case of MADUKOLU V NKEMDILIM (1962) NSCC as follows:- 1. The court is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another. 2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction; and 3. The case comes before the Court by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction This objection is premised on the third criteria, which is whether or not the due process of law or condition precedent to the exercise of the Court jurisdiction has been followed by the Claimants before instituting this suit. The grouse of the Defendants is that the Claimant did exhaust Schedule 3 of PENGASSAN Constitution 2013 or go through conciliation and arbitration as prescribed by Section 7 (3) of National Industrial Court Act 2006, since this suit is one according to the Defendants that involved ‘‘Trade Dispute’’. However, the Claimants posited that this is not a trade dispute matter that would warrant compliance with the above law. A perusal of the complaint and the statement of facts filed before the Court clearly shows that the 1st Claimant was suspended from the 1st Defendant and thereby deprived of certain rights available to full members, this suit was meant to challenge the suspension of the 1st Claimant from the membership of the 1st Defendant. There is no doubt that for any action to qualify to go through the processes of part 1 of the Trade Dispute Act, the controversy between the disputing parties must come within the purview of what is termed as ‘Trade Dispute’. What is trade dispute has been categorically stated by the Court of Appeal in the case of NATIONAL UNION OF ROAD TRANSPORT WORKERS V OGBODO (1998) 2 NWLR (Pt.537) 189 @ 197 paras G-H. In this case the Court of Appeal was interpreting the definition of Trade Dispute in section 47 now 48 of the Trade Dispute Act. Applying the definition of ‘‘Trade Dispute’’ enunciated by the Court of appeal in the case quoted above to the claims of the Claimants before the Court, it will right to state that the dispute submitted for adjudication before this Court by the Claimants is not a ‘‘Trade Dispute’’ to warrant it to be subjected to the processes of part 1 of the Trade Dispute or exhausting the procedures provided in Schedule 3 of the PENGASSAN Constitution 2013, before approaching this Court for redress. The parties are at ad idem that Schedule 3 of the PENGASSAN Constitution, 2013, is a condition precedent to exercise of jurisdiction. For any party to approach Court for redress must fulfilled the condition precedent. The law is trite that for a Court of law to be competent to exercise jurisdiction over a matter all conditions precedents to exercise of jurisdiction must be fulfilled. This has not been disputed by the parties in this case. The only area of dispute is that to the Defendants/Applicants Schedule 3 of the PENGASSAN Constitution, Constitution has imposed condition precedent to be fulfilled before an action can be commenced by the Claimant. While the Claimants/Respondents on their part are contending that the so called condition precedent has been fully complied with via exhibit W1, which is a letter written to the 1st Defendant for the internal dispute resolution mechanism of the Union to be activated. But, the 1st Defendant failed or neglected to do anything instead decided to illegally extend the tenure of the executive officers of PEF(M)B Branch of the 1st Defendant to which the Claimants belong. For proper appreciation of the position of law, it is appropriate to examine the relevant provisions of Schedule 3 of the PENGASSAN Constitution 2013 in order to appreciate and discern if the provision really laid down condition precedent, I reproduce the relevant provision of the Constitution of PENGASSAN, Rule 28.1 provides as follows: “All internal disputes in the Association shall be subjected to Internal Dispute Resolution process ascertained in Schedule 3.” The relevant provisions in Schedule 3 to PENGASSAN Constitution include 3.1, 3.4 and 3.8. Schedule 3.1 provides that: “All internal disputes shall be subordinate through the following organs: Unit-Chapter-Branch-Zone- CWC-NEC in that order.” Schedule 3.4 provides that: “A member or Branch who is aggrieved with the decisions or actions of the CWC shall report the matter to NEC through the General Secretary.” Schedule 3.8 provides that: “A member/Branch who is not satisfied with the outcome of NEC intervention can appeal to National Delegates’ Conference which decision shall be final.” It is to be noted that the objective of any interpretation is to discover the intention of the makers of the document to be interpreted. The duty of the court is to interpret and give adequate and as close as possible accurate and ordinary meaning to the words used in the document, unless this would lead to absurdity or be in conflict with other provisions of the document. This means the clauses of the document should be construed as a whole and should be given an interpretation consistent with the object and general context of the entire document. Ardo V Nyako (2014) 10 NWLR (Pt. 1416) 591 @b 628, PWTH AG V. CEDDI CORP LTD (2012) 2 NWLR (pt 1285) 465 @ 489. Ekeagu V Aliri (1991) 3 NWLR (Pt. 179) 258 @ 377. Ministry of Education Anambra state (2014) 14 NWLR (Pt 1427) 351 @ 377. In interpretation, Court is enjoined to read every word or clause in the document and construe them not in isolation but with reference to the context and other clauses in the document so as to get the real intention of the parties. Amaechi V INEC (2007) 9 NWLR (Pt1040) 504 @ 536. It is equally important to point out here that the obscurity or doubt of any particular word or words in a document may be removed by reference to associated words, and the meaning of a term may be enlarged or restricted by referring to the object of the whole clause in which it is used, see Ekpo V Calabar Local Government (19993)3 NWLR (Pt. 281) 324 @341. In the case at hand reading the entire provisions of Rule 28, Schedule 3, of the PENGASSAN Constitution, will revealed that the intention of the makers of PENFGASSAN Constitution, 2013 is not to lay down procedure to be followed by any aggrieved member of the Union before instituting any action before a Court of Law including this Court. What the Rule meant to achieve is to deny members of the union access to Court of law to seek redress for any alleged violation of right or entitlement. With the finality of the decision of the NDC then there is no condition precedent to fulfil by any aggrieved member of the union wishing to institute an action. In the circumstance the Rule and the schedule are null and void to the extent of its inconsistency in denying aggrieved members of access to Court which the Constitution of the Federal Republic of Nigeria has granted to any aggrieved person wishing to ventilate his grievance in a competent Court of law. In view of my finding above, I am of the view that Rule 28, and schedule 3 of PENGASSAN Constitution did not lay condition precedent to be fulfilled by any litigant. The Claimants in this case have locus to institute this action. This means that the right of the Claimants to approach Court for redress has not been delayed or outed by operation of law. It is also my view that the provisions of Schedule 3 of PENGASSAN Constitution 2013, is against the rules of natural justice enshrined in the maxim ‘’Nemo Judex in causa sua’’ Schedule 3 is in contravention of the principle of natural justice. In view of the reasons given above issue one is resolved against the Applicants. RESOLUTION OF ISSUE TWO It is submitted that the 1st Defendant is a registered trade union by virtue of section 5(7) of the Trade Unions Act and part C of the third schedule thereto. By the provisions of Order 3 Rule 1, the Claimants are required to indicate on the face of the complaint that this dispute is an intra union Dispute. According to Counsel the word ‘shall’ in Order 3 Rule 1 of the Rules of this Court import compulsion or a command and not merely directory. Counsel submitted that non-compliance with Order 3 Rule 1 of the Rules of this Court as to heading of complaint is not a mere irregularity that can be ignored with a wave of hand. The Claimants on their part argued that vide Order 5 Rule 1 of the Rules of this Court non-compliance shall be treated as irregularity. Counsel also referred to Order 5 Rule 6(3) where Court is enjoined to apply fair and flexible procedure and shall not allow technicalities to becloud doing justice to the party based on law, equity and fairness when considering any matter before the Court. Counsel urged this Court to treat the non-compliance as irregularity. This action was commenced via a complaint which is one of the forms provided under Order 3 Rule 1. According to the rules of this Court a complaint is to specifically state the relief or reliefs claimed either singly or in the alternative. The complaint is to be accompanied with the processes stated hereunder:- I. A statement of facts establishing cause of action. II. Copies of documents to be relied at the trial III. List of witnesses to be called IV. Written statement on oath of all witnesses listed to be called. See order 3 Rules 9, and 13 of the National Industrial Court (Civil Procedure) Rules 2017. The practice and procedure in the Court in respect of institution, commencement and trial of suits are akin to, in most respect to those of the state High Courts with relevant modification to accommodate the peculiarities of the court’s jurisdictional scope. However, it must be pointed out here that the practice and procedure of this Court are designed with the ultimate goals of attaining a just, efficient and speedy dispensation of justice, as well as enabling the Court, as a specialist Court, to hear and determine cases expeditiously, fairly and equitably. The Court may therefore disregard any technical irregularity in the rules that does not and is not likely to result in a miscarriage of justice. This does not mean that the Court will ignore non-compliance with its Rules at a wave of hand. I agree with the Counsel for the Applicants that Rules of Court are meant to be obeyed. They are designed and made to regulate the proceeding for orderly determination of issues submitted to the Court by the parties. This however, does not mean that non-compliance with the Rules can be condoned. The party contesting non-compliance with the Rules of Court has a duty to do so timeously. Otherwise the objection will be overruled. Therefore, any delay to contest infraction of the Rules will be fatal to the party raising the objection. In the case at hand I have had a hard look at the complaint it was filed on 13th day of January 2016, at the registry of this Court. While the motion raising objection to the competency of the Complaint was filed on 8th day of October 2017, i.e after one year Seven Months from the date of filing. Order 3 Rule 21(2) of the Rules of this Court is very clear on this issue. In the circumstance I hold that the objection to the competency of the complaint is baseless, as in the eyes of the law there is no proper objection to the complaint before the Court. In view of this finding I hold that the complaint is saved from being nullified. Section 23 of the Interpretation Act, will come to play to save the erroneous use of none prescribed form for commencement of an action. An action cannot be defeated by that omission, more particularly when it has not been shown that the Defendant has been misled by the non-compliance with the prescribed form. The adoption of wrong procedure will be no more than irregularity and would not render the entire proceeding a nullity. See ADEJUMO V DAVID HUGHES & CO LTD (1989) 5 NWLR (Pt.120). The Apex Court of the Land was emphatic on use of wrong procedure to commence an action. In the case of UDO V THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS & STARS (2013) LPELR-19910 (SC) ‘‘Commencing an action by wrong procedure does not constitute a jurisdictional issue since the lapse, except where specifically stated by the rules of court, does not defeat the plaintiff’s cause of action. If the subject matter of the plaintiff’s is within the jurisdiction of the court, the cause of action would not be abrogated simply because it has been commenced by the wrong procedure. The lapse in that regard is only an irregularity that gives the Defendant the right to insist that the plaintiff adopts the proper procedure n approaching the court. Even then, I agree with learned Respondent’s counsel, that the objection must be raised within reasonable time’’. The law no doubt is that rules of Court should be obeyed. However, this Court has consistently held to the effect that as a general rule, non-compliance with rules of Court is an irregularity. Non-compliance cannot be a ground of nullity unless such non-compliance amount to denial of justice, it must always be remembered that rules of Court are rules of procedure made for the convenience and orderly hearing of case. Apart from the objection of the Defendant being incompetent, due in ordinate delay, it is also in my view based on technicality. This is against the prevailing trend in the judiciary of ensuring doing substantial justice. The courts have since moved away from technicality. See COLITO (NIG) LIMITED V HONOURABLE JUSTICE TITI DAIBU (2010)2 NWLR pt 1178 and JOSIAH OLUWOLE FRANCIS V CITEC INTERNATIONAL ESTATE LTD (2010) NWLR pt 1219 at pg 252 para 14. This Court will therefore tread on the path of current jurisprudential posture which emphasizes that at all times substantial justice should be seen to be done to parties and their rights determined on merits. This Court will at all times jettisoned any call to use technicality to defeat justice. Use of technicality arises where a party seeks to capitalize on procedural irregularity to defeat justice. The law no doubt is that rules of Court should be obeyed. However, this Court has consistently held to the effect that as a general rule, non-compliance with rules of Court is an irregularity. Non-compliance cannot be a ground of nullity unless such non-compliance amount to denial of justice, it must always be remembered that rules of Court are rules of procedure made for the convenience and orderly hearing of case. In view of the foregoing and the fact that the complaint was in substantial compliance with Order 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, issue two is resolved against the Applicants and in favour of the Claimants. It is my view that the complaint is competent. RESOLUTION OF ISSUE THREE It is submitted by the Counsel for the Applicants that abuse of Court process is a concept that involves circumstances and situations of possibly infinite variety. The term generally connotes the improper use of the judicial process by a party to interfere with due administration of justice or for purposes of causing irritation or annoyance to his opponent. Simply put, it connotes proceedings which are mala fides, frivolous, vexatious, or oppressive. The Claimants on their part submitted that the words ‘‘cause of action’’ has been defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. Counsel submitted going by the definition of cause of action and reasonable cause of action that the Claimants’ have given facts in their facts establishing cause of action. On abuse of court process Counsel submitted that the Claimants have not abused the process of this Court. It is apparent from the claims filed as well as the statements of facts that the Claimants have established a cause of action to entitle them to be heard by the Court. It must be at the back of the mind that in establishing cause of action all that is required is for if to plead facts that will show some triable issues. This has been done by the pleadings of the Claimants. The evidence in proof of the pleading is not required at this stage. From the totality of what I have been saying above, the consideration of the issues involved herein, clearly shows without any equivocation that the Applicants have woefully failed to establish that the controversy to be resolved in this suit touches on ‘trade Dispute’. They have also failed to prove that the complaint commencing this action was incompetent. The provisions of Schedule 3 of PENGASSAN Constitution 2013, is in violation of citizens right to institute an action, it is never meant to be a condition precedent since it makes the decision of NDC final leaving aggrieved member without any remedy. It is also manifest from the pleadings that the Claimants have a cause of action deserving consideration by the Court and there is nothing to establish abuse of the process of this Court. In view of reasons adduced above I hold that the Claimants action before the Court is competent. The preliminary objection by the Defendants failed and is hereby dismissed for lacking in merit. Sanusi Kado, Judge.