RULING. 1. This deals with an Application fled on 9/10/19 by the 1st Defendant/Applicant paying for the reliefs stated below:- 1. A Declaration that the Applicant/t" Defendant have (sic) ceased to be a member of the 2nd Defendant by virtue of his due retirement from the Jigawa State Civil Service. 2. A Declaration that by virtue of the retired status of the Applicant/1st Defendant, all the reliefs sought against him has (sic) become otiose and a mere academic exercise. 3. An Order striking-out the name of the Applicant/1st Respondent from the instant suit. 4. And for further or other Orders this Court Honorable Court may deem fit to make in the circumstance. 2. The grounds for the aforementioned reliefs are:- I. The Applicant is sued in this suit by the Claimants as President of the 2nd Defendant sometime in 2016. II. That while this suit is pending, the Applicant was replaced in a convention duly held in compliance with the Constitution of the 2nd Defendant. III. That the said convention produced Comrade Lawrence Amaechi, as the new president of the 2nd Defendant as well as elect a new set of Executive Officers of the 2nd defendant. IV. That this Honorable Court granted an injunctive order restraining parties, after the convention was already held and the leadership in the 2nd defendant changed. V. The Defendants appealed the grant of injunction and nullification of the convention, to the Court of Appeal, which is still pending. VI. That the Applicant has now duly retired, after having served 35 years from the date stated on his Appointment letter and he has gone back to his home state Jigawa as a retiree. VII. The suit is now essentially between the new leadership of the Union under the superintendence of Comrade Lawrence Amaechi and the Claimants. VIII. That all the reliefs claimed in this suit against the applicant is otiose and merely academic, the Applicant having duly retired. IX. That the Applicant has ceased to be a proper party or a necessary party to this suit, by incidence of his retirement and the Constitution of the 2nd defendant. X. That the Applicant's continued presence in this suit will serve no purpose in view of the reliefs to this suit. 3. N. A. Idako, Esq; counsel for the 1st Defendant/Applicant in arguing this application relied on all the deposition in the 10 paragraphs affidavit in support of the motion on notice. Counsel also adopted the written address filed along with the motion on notice as his argument. In the written address a single issue was formulated for determination, to wit: "Whether the reliefs claimed in this suit against the 1st defendant has become spent by incidence of his retirement from the 2nd Defendant, hence excusing his presence in this suit". 4. In arguing the single issue for determination counsel answered the question posed in the affirmative and proceeded to contend that the reliefs of the Claimants herein have become spent and unnecessary against the 1st defendant by reason of his due retirement from the Nigeria civil service. To buttress his contention counsel referred to Exhibit A attached to the affidavit in support of the application. 5. Counsel also referred to Order 13 Rule 6 (1) and (2) of the National Industrial Court (Civil Procedure Rules 2017), and submitted that by the above provisions of the Rules, the Applicant has the right to bring an Application of this nature to the Court and indeed the Court has the power to grant the reliefs sought herein. 6. Counsel quoted the Question identified for the Court's determination and reliefs claimed in the amended originating summons application dated 9th of May 2016 and the reliefs claimed therein. 7. Counsel contended that the simple reaction to questions 1 and 2 above and the reliefs claimed is that the Claimants cannot prove the retirement of the Applicant in 2016, as alleged, now the Applicant herein has demonstrated to the Court by means of official document, duly certified and relevant to the instant issue, that he retired while this suit is pending, but after his tenure as president ended. It is submitted that the Current president Comrade Lawrence Amaechi is not retired and eligible to serve and defend his mandate in this suit. 8. It is the contention of counsel that the reliefs being claimed in the amended Originating summons have lapsed and are now spent, firstly because the tenure of the erstwhile executive elapsed and by the change in leadership of the 2nd Respondent, which produced Comrade Amechi, then the retirement of the Applicant. Relief 8 which seeks to compel the Applicant to produce his letter of appointment is very bizarre. 9. The onus of proof lies on the Claimant to prove his assertion, however the Applicant in acts of surplus-age and in the spirit of fairness and transparency placed before this Court his letter of Appointment into the Kano State Civil Service annexed to his defence and the confirmation of retirement, Exhibit A herein. In vehement denial of the Claim in this suit, the 1st Defendant filed a Counter affidavit dated 16th June 2016 and a statement of Defendant dated 31st July 2017. Counsel contended that the deposition in the counter-affidavit have shown that all the reliefs contained in this suit against the 1st Defendant has become academic and lost its utilitarian value by virtue of his retirement contained in Exhibit A. 10. Counsel contended that the declaratory reliefs sought, particularly reliefs 1 to 5 have all been overtaken by event, as the Applicant retired at the time of pendency of this suit. The 1st Defendant has exhausted his 2nd tenure as president of 2nd Defendant, as well as that of the 2nd Claimant's tenure as the vice president of the 2nd Defendant all came to an end, hence the conduct of the convention to appoint a new leadership in the Union, in order to prevent a situation of Vacuum in leadership of the 2nd defendant. 11. All other reliefs sought herein are incidental to the grant of the declaratory reliefs and are needless as against the 1st defendant who is now retired. The Applicant has placed before this Court his letter of appointment and the approval of his retirement, Notice of Change of Counsel and the Amended Constitution of the 2nd defendant. 12. Counsel contended that the provision of Order 13 Rule 6(2) of the Rules of this Honorable Court empower the Court to dispense with the Applicant's presence and the provisions of the Constitution of the 2nd defendant 2016, under Rule 4 contemplates that the membership in the union is drawn from the Civil Service of the State and Federation, this constitute the basis of the suit of the Claimants in the first place when they alleged the retirement of the 1st Defendant in 2016, a fact they are bound to prove by cogent and credible evidence. 13. It is submitted that the exercise of the Court's discretion depends on the facts and circumstances of each case. This Court is urged to exercise its discretion in favour of the Applicant by removing him as a party to this suit in consonance with Order 13 Rule 6(2) of the Rules of this court. 14. According to counsel the only live issue that may exist in this suit can properly be resolved without the presence of the 1st Defendant. It is contended that the 1st Defendant cannot be bound by the reliefs in this suit because he has ceased to be a member of the 2nd Defendant. It follows that his successor, Comrade Lawrence Amaechi ought to substitute the person of Comrade Mohammed S. Kiri who is now a retiree. The huge cost of coming down to Abuja from Jigawa State is inimical to the Applicant's interest and the Constitution of the 2nd Defendant has made ample provisions for the change in leadership of the 2nd Defendant. These facts as stated in the supporting affidavit compel the grant of this Application. 15. It is further contended that this Court has power by virtue of the Provisions of Section 18 and 19 of the National Industrial Court Act As amended 2006 to settle all leadership issues in the Union including appointing a trustee to man the affairs of the Union where there is a leadership tussle. 16. It is the contention of counsel that this Court can grant the relief sought herein, as the categorization of parties in a suit is determined by the interest of the party in question. On this position the case of Peenok Investment Ltd V. HOTEL PRESIDENTIAL LTD (1982) 12 SC, was referred to and relied upon. Counsel also cited and relied on the case of GREEN V GREEN 17. In concluding his submission counsel urged the court to grant all the reliefs sought in this Application in the interest of Justice. 18. In reaction to this application the Claimants filed a counter affidavit and a written address. Mr. Stephen Apeh, Esq; counsel for the Claimants in arguing in opposition placed reliance on the averments contained in the counter-affidavit. Counsel also adopted the written address as his argument on the application. In the affidavit in support counsel submitted lone issue for determination, as follows:- ‘’Whether the Application has merit to justify the grant of same.’’ 19. In arguing the lone issue counsel contended that the 1st Defendant’s application is baseless, frivolous and lacks merit. Counsel urged the court to dismiss same. Counsel contended that the reasons given by the Applicant in the affidavit in support are ridiculous. That it is the usual gimmick, always calculated, designed and desired to forestall the delivery or the judgment of the Court as long as they wish. 20. Counsel posited that the basis for this application is not only frivolous, baseless, annoying and irritating, but also it amounts to an abuse of Court process. To support this contention counsel relied on the decision of the Supreme Court in the case of SARAKI V KOTOYE (1992) 9 NWLR (PT. 264) 156. 21. It is also the contention of counsel that where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness as in this instant application, it could be termed an abuse of Court process. And we humbly urge the Court to so hold. Counsel also contended that the grounds of the application are not only nebulous and meaningless, but also are standing on a broken tripod which cannot stand in the eye of the law. 22. It is the contention of counsel that the record before this Honourable Court clearly shows that the Applicant has no iota of respect for this Honourable Court, as he had disrespected every order of this Court. He is a contemnor and the architect of the problems in the 2nd Defendant and cannot turn around now to file this very frivolous application asking the Court to strike out his name from this suit, knowing full well that this matter is slated for judgment. 23. Counsel argued that it is trite law that a party cannot be allowed to approbate and reprobate at the same time as the 1st Defendant is doing in this case. On this contention counsel relied on the case of NYAMCO PLC V ALL MOTORS (NIG.) PLC (2011) ALL FWLR (PT.600) 1226, where it was held that: "The law does not allow a litigant to change his colour like a chameleon. He cannot approbate and reprobate at the same time. Trial is not a fencing game of hide and seek neither is it a fencing game for litigant to engage in." 24. Counsel posited that a careful look at the grounds for this instant application and the depositions in the affidavit in support, shows that this application is standing on nothing to warrant the grant of the reliefs sought by the 1st Defendant/Applicant. On this position counsel relied on the case of ADERIGBE V. ABITOYE (2009) 4 M.J.S.C (PT 11) PG. 83 RATIO 8. Where it was held thus: " the law is that one cannot build something on nothing and expect it to stand, as the edifice will certainly collapse." 25. In concluding his submission counsel urged the court to refuse the application as it is mischievous, frivolous, baseless, annoying and lacking merit, an abuse of Court process. Counsel urged the court to so hold and dismiss same with heavy cost. COURT’S DECISION. 26. I have considered the 1st Defendant’s motion on notice, the affidavit in support, the Claimants counter-affidavit, the written addresses of counsel and the oral submissions of counsel for both parties. 27. Before proceeding to determine the main issue for resolution, I shall first and foremost consider the propriety or other wise of prayers 1 and 2 of the motion papers. The two prayers were seeking for court declaration. The said prayers are not such types of prayers that can be granted on a motion on notice of this nature. They are substantive prayers that can only be asked for in an action for declaration or in a counter-claim to a subsisting action. The 1st Defendant having not sought for those reliefs in a substantive action commenced for that purpose or as a counter-claim in an ongoing suit cannot in law have locus to have them considered in an application of this nature. Therefore, the two prayers are incompetent and are hereby struck-out, accordingly. 28. The counsel for the 1st Defendant/Applicant had by his own submission stated that the principal relief sought by this application is for Striking out the name of the 1st defendant, who is now a retiree and have ceased to be a member of the 2nd defendant as well as the fact that there are no real live issues for the Court to determine against the 1st defendant. This confirmed the position of the court that prayers 1 and 2 are not meant for this kind of application. They are added by counsel in his continued attempt of misleading the court 29. The counsel for the Applicant has in his bid to establish entitlement to grant of this application decided to deliberately quote copiously from the amended Originating Summons filed on the 10/5/2016, when knowing fully well that this Court had on 22/6/17 in a considered ruling directed parties to file pleadings for the suit to be heard on pleadings instead of affidavit evidence. The order of Court was made following the objection by the Defendants on propriety of commencing this suit via Originating Summons. 30. Interestingly, counsel for both the Claimants and the 1st and 2nd Defendants have all complied with the order for filing of pleadings. The Claimant filed his pleadings on 10/7/17 while the 1st and 2nd Defendants filed their joint statement of defence on 31/7/17. The 1st and 2nd Defendants joint statement of defence was filed by Mr. N. A. Idakwo, Esq; the counsel filing the present application under consideration. 31. It is trite law that once a court has ordered filing of pleadings in an action commenced by way of Originating Summons, the pleadings takes precedent and become the only processes to be considered by the Court in determining the suit. This goes to show that Mr. N. A. Idakwo, Esq; choosing to rely on the amended Originating Summons, when such process has been replaced by valid order of the Court goes to show that counsel was all out to mislead the court. 32. In the circumstances, all the paragraphs of the affidavit in support of this motion and the submissions of counsel relying on the amended Originating Summons cannot hold water and same are hereby discountenanced. 33. With the striking out of prayers 1 and 2, we are left with prayer 3 which is seeking for striking out of the name of the 1st Defendant on the ground that he had ceased to be member of the 2nd Defendant because he had retired from service and no longer in charge of the affairs of the 2nd Defendant because while this suit is pending he was replaced in a convention duly held in compliance with the Constitution of the 2nd Defendant, where one Comrade Lawrence Amaechi, is the current President of the 2nd Defendant and new set of executive elected. According to the 1st Defendant this suit is now between the Claimants, 2nd Defendant and Comrade Lawrence Amaechi, as the 1st Defendant is no longer a necessary party due to his retirement. 34. Looking at the antecedents of this suit, the reliefs being claimed in the statement of facts which are against the 1st Defendant/Applicant in respect of his stewardship at the helms of affairs of the 2nd Defendant, the 1st Defendant cannot be taken seriously to argue that he is not a necessary party in this suit. this application is pointer to the facts that all the delay tactics employed by the Defendants to forestall speedy hearing and determination of this suit were deliberate aimed at making sure that this suit did not see the light of the day talk-less of being heard to conclusion. I hereby overruled the 1st Defendant objection for being abuse of process of Court aimed at annoying the Claimants and frustrating their effort to have their grievances ventilated before the Court. The 1st Defendant/Applicant to my mind remains and is still a necessary party against whom the Claimants have claims against. 35. The position taken above is based on the principle that in an action seeking for declaration the court is called upon to ascertain and determine the rights of parties or a point of law. See ADIGUN V AG OYO STATE (1987) I NWLR (PT. 687. The law as declared may touch interests of other persons. It is therefore necessary to afford such persons the opportunity of being heard in the proceedings. It is in this respect that the 1st Defendant being the president of the 2nd Defendant becomes relevant and necessary party more particularly when there is a valid Court order nullifying National Delegate Conference of the 2nd Defendant conducted on the 25th and 26th day of January 2018, in violation of the order of this Court made on 6/12/17, ordering parties not to do anything that will in anyway affect the outcome of the ruling of the Court slated to be delivered on 6/2/18. See ADEGBENRO V ATTORNEY-GENERAL OF THE FEDERATION & ORS. (1962) 1 ALL NLR 431, where it was held declaration on appointment of premier cannot be granted in the absence of former premier. See also THOMAS V LOCAL GOVERNMENT SERVICE BOARD (1965)NMLR 310. 36. It is pertinent at this juncture to state that from the inception of this case to date the 1st Defendant has not shown any seriousness in defending this suit. This is because N. A. Idakwo, Esq; counsel for the Defendants (now for the 1st Defendant) only, kept filing one preliminary objection or the other in order which to my mind was deliberate to delay the timely conclusion of this suit. The antics of counsel to that effect could be seen from the record of the court. 37. For instance at the close of the Claimants case, the counsel for the Defendants asked for adjournment to enable him fetch documents necessary for conduct of his cross-examination. However, when the case came up on 1/11/17 for cross-examination, counsel for the Defendants informed the Court that Garba Usman Tetengi, SAN, lead counsel would like to conduct the cross-examination himself. But he was otherwise engaged with work of the committee set up by the Chief Justice of Nigeria to monitor corruption cases. The case was then adjourned to 6/12/17. 38. On 6/12/17, when this matter came up before the court counsel for the Claimants moved motion on notice for interlocutory injunction to restrain the Defendants from conducting National Delegate Conference pending the hearing and determination of this suit.N. A. Idakwo, Esq; counsel for the Defendants opposed the application for interlocutory injunction. After taking argument for and against the application, the suit was adjourned to 6/2/18, for ruling and the Court ordered the parties not to do anything that will in anyway affect or jeopardise the consideration of the application for interlocutory injunction. On 6/2/18 ruling was delivered wherein interlocutory injunction was granted. The case was then adjourned to 20, 21 and 22 March 2018 for continuation of hearing. 39. On 8/3/18 application for committal of the Defendants was argued and adjourned to 10/3/18 for ruling. On 10/3/18 ruling could not be delivered because of entry of appeal at Court of Appeal. 40. On 17/7/18, N. A. Idakwo, Esq; counsel for the Defendants cross-examined CW1, at the end of the cross-examination, counsel for the Defendants asked for a date to open their defence. The case was then adjourned to 1/11/18 for defence. On 1/11/18, when this matter came up for defence, N. A. Idakwo, Esq; informed the Court that lead counsel would like to lead defence witness as a result counsel asked for an adjournment. There and then, the Court drew the attention of counsel to pending ruling. The ruling was delivered wherein the National Delegate Conference conducted in violation of the order of court was nullified. The case was then adjourned to 11/12/18 for defence. 41. On 16/12/18, when this suit came up for defence one Ebah Idikwu, Esq; appeared for the Defendants. Instead of conducting defence, counsel moved motion for leave to appeal the application was heard. After consideration of the application it was refused for lacking in merit and same struck out. After the refusal of the Defendants application for leave to appeal. counsel began to move an application for stay of proceedings, but when his attention was drawn to the fact that there was no appeal filed by the Defendants counsel withdrew his motion and same was struck out. 42. On 12/12/18, the counsel for the Defendants came with another preliminary objection on ground of non-signing of originating process. However, when the court drew the attention of counsel to signature on the process, counsel then submitted no stamp on it was affixed. In the circumstance the court adjourned the matter to 11/2/19 to enable counsel for the Claimant bring his stamp and affix same on the process and also for defence. 43. On 11/2/19, when this suit came up for defence the Defendants and their counsel were absent. Consequently, the Defendants were foreclosed from defending. The case was then adjourned to 3/4/19 for adoption of final written address. 44. On 3/4/19, the defendants were represented by one Yahaya Idris, General Secretary and H. A. Ibrahim, Esq; appeared for the Defendants. Counsel for the Claimants adopted his final written address in the presence of H. A. Ibrahim, Esq; counsel for the Defendants, who appeared for the Defendants without any objection whatsoever. The case was then adjourned to 1/7/19 for judgment. However, before, the date for judgment counsel for the Defendants filed motion on notice seeking for order of Court to grant the Defendants time to open their defence. The application was heard and same adjourned to the 1/7/19 for ruling the day the judgment was fixed. 45. However, before the court date fixed for ruling and judgment, I received a copy of a petition from the president of the court written by the Defendants seeking for transfer of the case to another court. I promptly responded to the petition and the president of the Court in his own wisdom after considering my response, vide memo dated 23/9/19, returned the case file to me to conclude the matter. 46. I have decided to go this length in narrating my experience in this case so as to show how litigants and their counsel can go to frustrate hearing and determination of cases before courts. I need not to say more on this. 47. From the above facts will it be right to grant indulgence to the 1st defendant to strike his name from this suit, when he had by his admission disrespected this court decided to hand over the affairs of the 2nd Defendant despite the positive order of this court nullifying the purported National Delegate Conference that was organised during the pendency of this suit with aim of rendering the entire suit nugatory. No court will allow litigant to do whatever he likes when a matter is pending before the court. The 1st Defendant has by his own admission in the affidavit in support of his application told this court to its face that he has no respect for rule of law. 48. In the circumstance, such a party will not be allowed to benefit from his own wrong doing. To indulge the 1st Defendant by striking his name from this suit will amount to giving licence to litigants to ridicule the institution of the judiciary. Equity will not even permit that under any guise. To say the least, it is gross abuse for litigant to perpetrate delay for the sole aim of rendering a suit nullity or nugatory. 49. I find it difficult to phantom how the 1st Defendant who has willy-nilly vehemently through all sorts of indulgence refused to defend this suit and held the Claimants to ransom will now turn and asked the court to strike his name from the suit under any guise. The law has long been settled that a party should not benefit from his own wrong. See ADEDEJI V. OBAJIMI (2018) LPELR-44360(SC), ENEKWE V. INT'L MERCHANT BANK OF NIG LTD. & ORS (2006) LPELR-1140(SC) 50. The time "honoured principle is that no one can or shall take advantage of his own wrong doing, the Maxim is "NULLUM COMMODUM CAPERE POTEST DE INJURUA SUA PROPRIA" EX TURPI CAUSA NON ORITUR ACTIO. 51. The above discourse, alone, without more, is sufficient, in law, to put an end to this application. 52. In all the circumstances of the facts in respect of the case leading to this application as narrated earlier in this ruling, what is respectfully clear to me and which should and ought to be a signal or an eye opener to any litigant who thinks he is clever and wants to be clever, is that the law will not allow him to benefit from his own wrong. 53. I have deliberately gone this far, in order to show that it would be unconscionable for any party to use the process of the court to delay proceeding and then turn around to asked the Court to excused him from the action. To indulge the 1st Defendant will amount to allowing him to escape from justice. 54. In light of the above, I hereby hold that this application is lacking in merit and same is hereby dismissed. 55. Cost in the sum of N200,000.00 (Two Hundred Thousand Naira) only, is awarded against the 1st Defendant in favour of the Claimants. Sanusi Kado, Judge.