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COURT’S JUDGMENT On October 20, 2016 the Applicants filed this Originating Summons against the Respondents seeking for the following reliefs: 1. Declaration that under and by virtue of the provisions of Rule 3(v) and Rule 5(iii)(a) of the Reviewed constitution of Nigeria Union of Local Government Employees 2005, Applicant has right to have his grievance (Appeal) processed and determined by Respondents being the higher organ of the Union. 2. Declaration that failure and refusal by Respondents to process the grievance/appeal of Applicant in terms of exhibit “2”, amounts to a flagrant breach of the provisions of Rule 10(v) and Rule 29(6) (d) of the Reviewed Constitution of Nigeria Union of Local Government Employees, 2005. 3. An Order Compelling 1st and 2nd Respondents jointly and severally forthwith to process and determine the Applicant’s grievance/appeal in terms of exhibit “2”. 4. An Order awarding the sum of N1,000,000.00 (One Million Naira) jointly and severally against the Respondents as general damages in favour of Applicant. 5. An Order awarding the sum of N580,000.00 (Five Hundred and Eighty Thousand Naira) as special damages in favour of Applicant. By this Originating Summons, the applicant formulated the following questions for determination of the Court: 1. Whether Applicant has right under the provisions of the Union Constitution to have his grievances processed by Respondents. 2. Whether failure and refusal by Respondents to process the Applicant’s grievance as represented by exhibit “2” does not amount to breach of the provisions of the Union Constitution by Respondents. 3. Whether based on facts and evidence before this Honourable Court, Respondents can be compelled to process and determine Applicant’s appeal/grievances in terms of exhibit “2” 4. Whether Applicant is not entitled to recover in damages against Respondents. In support of the Originating Summons the applicant deposed to a 16 paragraphed affidavit, to which he attached 4 Exhibits. His counsel also filed a written address in support; formulating issues for the Court’s determination this way: 1. Whether Applicant has right under the provisions of the Union Constitution to have his grievances processed by Respondents. 2. Whether failure and refusal by Respondents to process the Applicant’s grievance as represented by Exhibit “2” does not amount to breach of the provisions of the Union’s constitution by Respondents. 3. Whether based on facts and evidence before this Honourable Court, Respondents can be compelled to process and determine Applicant’s appeal/grievances in terms of Exhibit “2” 4. Whether Applicant is not entitled to recover in damages against Respondents Arguing the first issue, counsel submitted that the Applicant through his Solicitor, made his grievances known to the Respondents in terms of Exhibit “2” dated 27/9/16 by a way of an appeal and that he demanded the Respondents as represented by its agent, the State Executive Council to act on the said appeal/grievances within 15days; referring to paragraphs 9, 10, 11 and 12 of the supporting affidavit, in which he set out facts to be relied upon on the provisions of Rule 3(v), Rule 5(iii)(a) of the Union constitution. The applicant continued that the golden rule of interpretation of Statute is that where the words used in a statute are clear and unambiguous, they must be given their natural and ordinary meaning unless to do so, would lead to absurdity or inconsistency with the rest of statute; citing Dankwambo v. Abubakar [2015] 9SCM at page 17 Paragraphs C-F and Lockpobiri v. Ogola & Ors [2015] in SCM 62 at Paragraphs E-F. Arguing issue two of whether failure and refusal by Respondents to process the Applicant’s grievance in Exhibit “2” does not amount to breach of the provisions of the Union Constitution by Respondents, counsel referred the Court to Rule 10 (v) and Rule 29(4)(ii) of the Union Constitution (Exhibit 1) and submitted that it is the duty of the Respondents particularly the 1st Respondent to see to the proper organization of the Union at State level to represent the interest of its members; one of whom is the Applicant is. To counsel, this is not a matter of discretion, rather it is mandatory hence; the use of the word “Shall” in the Union’s constitution, exhibit “1” by the drafters of the said constitution; which connotes compulsion. Counsel referred the Court to paragraphs 3, 4, 4(a), 4(b), 4(d), 5, 6, 9(a), 9(b), (c), (d), (e) and (f), 10, 11, 12 and 13 of the affidavit in support and to the case of Amoshima v. The State [2011] 8 SCM 30, Paragraphs C-E. Arguing issue three of whether the Respondents can be compelled to process and determine the appeal/grievances of the applicant in Exhibit “2” based on facts and evidence before this Court; counsel submitted that exhibit “1” being a legal document that defines the rights, duties, entitlements, liabilities of parties inter se, the said rights/entitlements of the Applicant having been breached by Respondents in the instant suit, this Court has unfettered competence to compel Respondents to carry out its duty/obligation to enforce the Applicant’s rights. On issue four of whether the Applicant is not entitled to damages against Respondents, counsel referred to paragraphs 14 and 15 of the supporting affidavit and submitted that General damages are such that the law presumes follows from the type of wrong complained of and do not need to be specifically claimed. He continued that the applicant in this case is entitled to same. In opposing the application, counsel to the Respondents filed a 30 paragraphed counter affidavit deposed to by one Oguntimehin Adetola Joseph; the Secretary to the 1st defendant, he also attached 10 Exhibits to the counter affidavit. The respondents’ counsel again filed written address to counter the application and framed six issues for determination of the Court thus: 1. Whether the Applicant’s Suit is not premature where the administrative and/or domestic remedies in the Constitution governing members of the 1st Respondent have not been exhausted before the invocation of the judicial powers of the National Industrial Court. 2. If it is established that Applicant’s Suit is premature, whether the Honourable Court has jurisdiction to entertain a premature suit. 3. If it is established that Applicant’s Suit is premature, whether the Suit is not an abuse of court process. 4. Whether the Suit of the Applicant is competent where the Affidavit in support of the Originating Summons offends Section 115 (1)-(4) of the Evidence Act, 2011. Alternatively, in the unlikely event that the Honourable Court finds and holds that the Applicant’s Suit is not premature and that the Court has jurisdiction, the Respondents humbly invite the Court to determine the following issues: 5. Whether Originating Summons, which the Applicant used in commencing this action can competently invoke the jurisdiction of the Court where the nature of the material facts deposed to in the Affidavit in support discloses the likelihood of disputable facts and hostile proceedings. 6. Assuming but without conceding that this Honourable Court finds and holds that Originating Summons can competently invoke the adjudicatory powers of this Court in the context of disputable facts, whether the Applicant is entitled to the reliefs claimed within the context of Rule 8(iv), Rule 10(xviii) and Rule 8 (vii-xvi) of the 1st Respondent’s constitution, the 15 days ultimatum given by the Applicant within which his “grievances/appeal” be investigated and resolved as well as the state of the law. Arguing the first issue, counsel submitted that the Applicant’s Suit is premature where the mandatory domestic remedies in the constitution governing members of the 1st Respondent Union have not been exhausted before the invocation of the judicial powers of the National Industrial Court, citing Akintemi v. Onwumechili [1985] 1 NWLR (Pt. 1) 68 at 85; Lawal v. Morohunfola [1998] 1 NWLR (Pt. 532) 111 and the unreported case of Comrade Ade Haastrup & 2 ors v. SSAEAC & 2 ors Suit No: NICN/LA/114/2014. Counsel argued that Rule 5(iii) (a) of the constitution governing all members of the 1st Respondent and the relationship between the Applicant and the Respondents prescribes that an aggrieved member shall first lodge his/her grievance/complaint at an appropriate lower organ such as the Local Branch Executive. If unsatisfied with the decision of the lower organ, the aggrieved person shall appeal against the decision of the lower organ to the next higher organ. He went that Rule 5(iii) (a) of the Reviewed constitution of the Union constitution does not permit the aggrieved person to commence his/her complaint with an appeal to a higher organ as done by the applicant. Again counsel submitted that Rule 5(viii) of the Reviewed Constitution of Nigeria Union of Local Government Employees (NULGE) 2005, the appropriate higher organ to the Local Branch level is not the State Executive Council; the next higher organ to which the Applicant ought to have appealed is the “State Administrative Working Committee”. The State Executive Council is next after the “State Administrative Working Committee” and urged the Court to so hold. Arguing issue two of if the suit is premature, whether the Court has jurisdiction to entertain it, counsel submitted that where it is established that the Applicant’s Suit is premature, the court lacks jurisdiction to adjudicate in the matter, citing University of Ilorin v. Oluwadare [2006] 14 NWLR (Pt. 1000) 751 at 773, which reiterated the holding of the Court in Akintemi v. Onwumechili [1985] 1 NWLR (Pt. 1) 68 at 85; Ajakaiye v. Idehai [1994] 8 NWLR (Pt. 364) 504 at 525-526 & 532. Arguing issue three of if the suit is premature, whether it is not an abuse of court’s process; counsel submitted that the premature nature of the Applicant’s Suit makes it an abuse of court process. To counsel the applicant has improperly initiated the judicial process to the irritation and annoyance of his opponent/the respondents and against the efficient and effective administration of justice, citing Saraki v. Kotoye [1992] 11-12 SCNJ 26); Alhaji Muhammadu Maigari Dingyadi and anor v. Independent National Electoral Commission and 2 ors [2011] 4 SC (Pt. I) 1); Arubo v. Aiyeleru [1993] 3 NWLR (Pt. 280) 126 at 142, paragraph B). Arguing issue four of whether the suit is competent where the Affidavit in support of the Originating Summons offends section 115 (1)-(4) of the Evidence Act, 2011; counsel submitted that paragraph 15 of the Applicant’s Affidavit contains a statement, which qualifies as an opinion, bordering on law or legal conclusion. Thus, the Suit is incompetent as a result of the fact that paragraph 15 offends section 115 (1)-(4) of the Evidence Act, 2011; citing Bamaiyi v. State [2001] 8 NWLR (Pt. 715) 270 at 289, paras C-E, Abiodun v. A.G. Federation [2007] 4 FWLR (Pt. 398) at 7153 Arguing issue five of whether Originating Summons is the appropriate mode of commencing this action given that the nature of the material facts deposed to in the Affidavit in support discloses the likelihood of disputable facts and hostile proceedings; counsel submitted and resolve this issue in the negative, citing Ossai v. Wakwah [2006] 4 NWLR (Pt. 969) 208 at 229, Paras. E – F; S.C.S. Co. v. Council, O.A.U, Ile-Ife [2011] 15 NWLR (Pt. 1269) 193 at 204 – 205, Paras. F – B; 205, Paras. G – H; 213, Paras. C – D. On the originating process, counsel submitted that the Applicant ought to have commenced their suit by means of Complaint. Referring to relief number 3, Paragraphs 11 to 13 of the Affidavit in support and the Counter Affidavit of the Respondents, particularly, paragraphs 12 &16; 27(f) &(g); 27(b) & (e); 11, 12 & 16; 7, 8, 9 & 10; 27(b) & (d) and Paragraph 27(a), respectively. Counsel argued that the identified facts in the Applicant’s Affidavit are contentious; therefore, incompetent; citing S.C.S. Co. v. Council, O.A.U, Ile-Ife (supra) at 208, paras A – B. Arguing issue six of whether the Applicant is entitled to give the respondent the 15 days ultimatum given within the provision of Rule 8(iv), Rule 10(xviii) and Rule 8 (vii-xvi) of the 1st Respondent’s constitution, counsel submitted in the negative. He went on that the constitution of the 1st Respondent-Union does not permit investigation, consideration and determination of grievances and/or appeals within the 15 days ultimatum given by the Applicant’s counsel on behalf of the Applicant; within which the 1st Respondent should determine his “appeal” assuming without conceding that the said “appeal” was properly brought before the 1st Respondent, citing Saraki v. F.R.N [2016] 3 NWLR (Pt. 1500) 531 at 597-598, paras C-A; 643, paras G-H; 648, paras C-F; Ratio 42; P.H.C.N Plc. v. Offoelo [2013] 4 NWLR (Pt. 1344) 380 at 409-410, paras G-B, Ratio 13. On the solicitor’s fee, counsel submitted that it is unethical and an affront to public policy for a litigant to pass on the burden of his solicitor’s fees to an opponent in a suit, citing Ola Suleiman v. Hongzing Steel Company Limited, unreported Suit No: NICN/LA/73/2011, Judgment of which was delivered on February 26, 2015 by Hon. Justice B. B. Kanyip, PhD. Counsel went on that the Applicant claims for general damages without being able to show that the Respondents have breached the 1st Respondent’s constitution, which governs the relationship between the 1st Respondent’s members including the Applicant; and so, the Applicant’s Suit is premature. Responding to the written address of the respondents, the applicant filed a further affidavit of 21 paragraphs and his counsel filed reply on point of law and formulated two issues for determination as follows: 1. Given the facts and evidence before this Honourable court, whether this suit as constituted is premature. 2. Whether the Applicant is entitled to all the reliefs sought as per the originating summons filed before this Honourable Court. On these issues framed in the reply on point of law, counsel went on to reargue his case. Since his is not allowed in law, these re-arguments are discountenanced in this judgment. COURT’S DECISION I have gone through the facts of this case together with the affidavit evidence for and in counter of this Originating Summons. I have also read through the written arguments of counsel for and against this case; from all of this, I am of the considered view that the following issues call for determination of this Court: 1. Whether or not this action was properly initiated by Originating Summons. 2. Whether or not the suit is pre-mature. 3. Whether or not the applicant is entitled to his reliefs. Whether this suit was properly commenced before this Court by Originating Summons It is worthy of note that the applicant filed this Originating Summons on October 20, 2016 against the respondents; seeking for two declaratory reliefs this way: that he has right to take his grievance to higher organ of their Union under the provisions of Rule 3(v) and Rule 5(iii)(a) of the Reviewed Constitution of Nigeria Union of Local Government Employees, 2005 and that the failure or refusal of the respondents to process the said grievance as stated in his appeal letter to their representative in his Exhibit “2”; is a breach of the provisions of Rule 10(v) and Rule 29(6) and (d) of the Union’s constitution. The applicant then prayed for three orders thus: to compel the 1st and 2nd respondents to process and determine his said grievance, to award the sum of N1,000,000.00 against the Respondents as general damages in his favour and also to award him the sum of N580,000.00 as special damages. In essence, this suit was filed under the old Rules of this Court before their repeal and prior to the commencement of the current Rules of the Court. The particular old Rule applicable to this case is Order 3 Rules 5(A) (1) of the National Industrial Court of Nigeria Practice Direction, 2012. This Direction states that “any person claiming to be interested under an enactment, constitution, agreement or any other written instrument; may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the right of the persons interested”. See also the provisions of Order 3 Rule 3 NICN (Civil Procedure) Rules, 2017 for similar provision. The Proviso to the provision of Order 5(A) (2) (c) of the NICN Practice Direction, 2012 was to the effect that Originating Summons are not to be used to commence a suit, which will raise substantial dispute of facts. In paragraphs 10 and 14 of the affidavit in support of this Originating Summons, the applicant deposed thus: 10. That I know that the affairs of the Local Branch of the union wherein I maintain my membership that is, Saki East Local Government Council of Oyo State (local branch) are not being governed and operated in accordance with the provisions of the union constitution and I instructed my solicitor, D.S. Olabode of Counsel to make a formal appeal to Respondents in respect of the conducts of one of my fellow members of the union, Com. Adelodun Wasiu Atilade in relation to the affairs of my Local Branch to express my grievances. 14. That refusal and neglect by Respondents to process and determine my grievance/appeal made me to incure huge financial expenses of N500,000.00 (Five Hundred Thousand Naira) in preparation, filing and prosecution of this suit before this Honourable court; this is in addition to the N80,000.00 (Eighty Thousand Naira) I paid as the cost of preparing the appeal (exhibit “2”) by my Solicitor, D.S. Olabode. Herein attached to this affidavit are the copies of payment receipts date 25/9/2016 and 15/10/2016 from the office of my solicitor marked as exhibits “3” and “4” respectively. (a) That failure and refusal of Respondents to look into my grievance has caused me financial loss to the tune of N580,000.00 so far. From the endorsement on this Originating Summons and from the reproduced depositions in the affidavit in support, the case of the applicant is not merely for the determination of any question of construction arising under their Union’s constitution and for a declaration of his right; but it is one for Executary judgment, which raises substantial dispute of facts. It is trite that where the facts of a dispute are likely to be in dispute, the procedure of Originating Summons ought not to be used in resolving the dispute; see the case of Ikpeazu v. Ekeagbara & Ors [2016] LPELR-40847(CA). Going by the Proviso under the now repealed Order 5(A) (2) (c) of the NICN Practice Direction, 2012; but under which this case was filed, I find and hold that, initiating this suit by Originating Summons is not proper because of the substantial dispute of facts involved in the suit. I further hold that this action ought to have been commenced by complaint in this Court, so as to be able to properly determine the disputes between the parties. In the circumstance, I again hold that this suit was wrongly instituted in this Court by Originating Summons. On whether this case is pre-mature Rule 5(iii) of the Reviewed constitution of Nigeria Union of Local Government Employees (NULGE), 2005 prescribes as follows: a) Any member shall have the right to initiate action at his/her own expense in connection with any breach of the provisions of the constitution subject to an appeal to higher organs of the Union before such an action could be initiated. b) Grievance arising from the decision of the Nation Executive Council (NEC) or conduct of the National Delegates Conference (NDC) should be reported to the National Executive Council (NEC) for adjudication before the aggrieved person can initiate any further action. Strict compliance to this provision shall be observed by all members of the Union. Rule 5(viii) of the Reviewed constitution of the Union (NULGE), 2005 sets out the hierarchical governing organs of the Respondents Union like this: viii). the governing bodies of the Union shall be vested in the following organs: a. National Delegates Conference b. National Executive Council c. Working Committee d. State Delegates Conference e. State Executive Council f. State Administrative Working Committee g. Local Branch Congress h. Local Branch Executive Committee. In paragraph 10 of the affidavit in support of this Originating Summons, the complaint of the applicant is that ‘the affairs of the Local Branch of the union; that is, Saki East Local Government Council of Oyo State (Local Branch) are not being governed and operated in accordance with the provisions of the union constitution’. By the provision of Rule 5(iii) (a) of the Reviewed Constitution of Nigeria Union of Local Government Employees (NULGE), 2005 the applicant has right to initiate action in connection with any breach of the provisions of the constitution subject to an appeal to higher organs of the Union before such an action could be initiated in Court. The argument of the applicant is that he had complied with this Rule by appealing to the 1st respondent before filing this suit. On the other hand, the respondents’ argument is that the applicant ought to have 1st of all presented his complaint in his Exhibit 2 to the Local Branch Congress and to the State Administrative Working Committee before sending his appeal to the State Executive Council. Furthermore, Rule 5 (ix) of the Reviewed constitution of NULGE states that: In event of any question arising as to the interpretation of any Rule of this constitution, the issue shall be referred to the National Executive Council for final determination. As shown above, the 1st relief of the applicant in this case is for a declaration that he has right under the provision of Rule 3(v) and Rule 5(iii) (a) of the Reviewed Constitution of Nigeria Union of Local Government Employees, 2005 to take his grievance to higher organ of their Union. This means that the applicant is seeking for the interpretation of these Rules of his Union’s constitution. However, this question on interpretation of Rules 3 and 5 of NULGE constitution was not taken to the National Executive Council of the Union at all as required by Rule 5 (ix) of the NULGE constitution before initiating this suit in this Court. It would have been a different thing if the question of interpretation of the union constitution was 1st taken to the National Executive Council of NULGE and it was not satisfactorily resolved before the filing of this action; then, the applicant would be seeing to be exercising his fundamental right under the Constitution of the FRN, 1999 (As Amended) by filing this suit. Section 254C (1) (j) (vi) of the Constitution of the FRN, 1999 (As Amended) provides that this Court has jurisdiction on matters relating to the determination of any question as to the interpretation and application of Trade Union constitution etc. This means that this Court has jurisdiction to interpret the NULGE constitution provided that all the conditions to comply with in activating the Court’s interpretative power are satisfied, which is not the case here. Because the applicant did not take the issue of interpretation of the Union Rules to the Union’s NEC 1st as part of the union’s internal ways of resolving its disputes before this Court’s jurisdiction can be activated on the matter. In this circumstance, I find and hold that the applicant has not complied with the provision of Rule 5 (ix) of NULGE constitution, which is part of the Union’s domestic mode of resolving its disputes before initiating this action. I further find and hold that this suit is premature; hence, it is too early to determine the merit of the applicant’s reliefs. Consequently, I decline jurisdiction to handle this suit and the case is accordingly struck out. Judgment is entered accordingly. I make no order as to cost. Hon. Justice F. I. Kola-Olalere Presiding Judge