IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT ABUJA BEFORE THEIR LORDSHIPS: Hon. Justice B.B. Kanyip - Presiding Judge Prof. M. B.B. Dadda - Judge Mr. M.A. B. Atilola - Judge DATE: FEBRUARY 13, 2007 SUIT NO. NIC/2/2007 BETWEEN Comrade Clever C. Nnorom - Applicant AND 1. Comrade Nkem Nwauzor (Chairman Credentials Committee) 2. Comrade R. O. Idumajogwu (Chairman Conference Committee) 3. Comrade John E. Odah (general Secretary, NLC) 4. Comrade Adams Oshioruole (President, NLC) 5. Nigerian Labour Congress Respondents REPRESENTATION E. C. Chukwu, for the applicant Femi Falana, with him I. Maduabuchi, for the respondents JUDGEMENT This is a matter brought by way of originating summons filed on 25th January 2007 wherein the applicant is praying the court for an order of injunction restraining the respondents, their servants, agents, or privies from conducting the Nigerian Labour Congress (NLC) elections on 15th and 16th February 2007 until the applicant is put back or restored to his rights to contest the NLC election under a free and fair atmosphere. The rights of the applicant, according to the applicant include- (a) Extension of time to return filled nomination forms. (b) Publication of the applicant's name along with other contestants in a national daily or dailies. (c) Taking cognizance of reliefs (a) and (b) above, the NLC elections to take place on a date to be fixed by the court other than the 15th and 16th February 2007. Alongside this injunctive relief, the applicant also sought for an order of mandamus but which had in a considered ruling on 9th February 2007 been struck out for want of jurisdiction given the non-observance of due process on the part of the applicant. The applicant also filed a motion on notice on 25th January 2007 pursuant to section 16 or the National Industrial Court (NIC) Act No. 1 of 2006 and Rule 17 of the NIC Rules Cap. 432 LFN 1990, praying the court for among other reliefs an order of interim injunction as well as accelerated hearing of the suit. The accelerated hearing which this court granted this suit even when the motion for it was not formally moved meant that the prayer for interim injunction was subsumed with the main injunctive prayer in the originating motion. Consequently, by the agreement of the parties, all the issues raised in the motion on notice were to be addressed in the arguments made in relation to the originating summons. In the originating summons, the applicant raised five questions for the determination of this court, namely: 1. Whether or not the plaintiff is a bona fide member of the Nigeria Union or Pensioners (NUP); and as such member, whether he is not entitled to seek nomination and to contest the forthcoming NLC election in February 15 and 16, 2007 under the platform or the NU P. 2. Whether or not the constitution of the NLC allows the respondents to deny the plaintiff or refuse him the nomination forms when the applicant was physically present and demanding for such forms. 3. Whether or not the 3rd and 4th respondents acting in conjunction or separately have discretion as to who to give or not to give nomination forms for the Forthcoming election or any NLC election. 4. Whether or not the refusal to give the nomination form to the applicant does not amount to a breach of the applicant's rights to fair hearing, to freedom of association, and to freedom from discrimination both under the 1990 Constitution and the constitution of the NLC. 5. Whether or not the forthcoming NLC elections can be said to be fair, when already the applicant who had previously contested the NLC elections in 1999 and 2003, with the incumbent 4th respondent, being deliberately sidelined, despite his intention to do so come February 2007. Attached to the originating summons is a 22-paragraphcd affidavit in support with 5 exhibits annexed. The applicant later filed a 13 paragraphed further affidavit in support with 4 exhibits attached. In reaction to all the processes filed by the applicant, the respondents filed a 3- paragraphed counter affidavit with 2 exhibits attached. In addition, the respondents raised a preliminary objection as to the competence of this court to hear and determine the matter. In a considered ruling on February 9, 2007 the preliminary objection was partly granted when the applicant's prayer for mandamus was struck out but not that for injunctive relief. From the totality of the processes filed and the submissions made in this matter, the applicant's case can be said to principally hinge on the question whether, in virtue of his membership of the NUP, he has personal rights in the NLC that have been infringed; for unless an applicant can show that he has rights or entitlements which have been infringed, this court may not be of much assistance. The applicant is arguing that he has a right to contest the forthcoming NLC elections, which right has been denied when the nomination form for the election was denied to him. Consequently, he is praying this court for compelling orders to have him factored into the election as a candidate. To be able to do this, however, he is also praying this court to halt the forthcoming NLC Unions so that he will have the opportunity to be a contestant. All of this is aminable only when it is ascertained if the applicant has any election right(s) against respondents to warrant the reliefs he seeks from this court. And we cannot answer this Union without regard to the NUP and NLC constitutions - the documents the applicant is this court to interpret. The first place, it is the argument of the applicant that in virtue of being a member of NUP, and given the fact that the NUP is an affiliate member of the NLC, his denial of registration form for the NLC must be interpreted to mean the infringement of his registration right(s). But is the applicant a member of the NUP'? Rule 3(i) of the NUP constitution reproduces the jurisdictional scope of the NUP in the Trade Unions Act as amended when it states that the following persons automatically become members of the NUP immediately they retire from the service and placed on pensions: All pensioners from the Civil Service or the Federation including Local Governments, Statutory Corporations, Government-owned Companies, Educational Institutions for which the governments of the Federation are responsible and all similar establishment. Also private sector pensioners, 3(iv) then goes on to provide that a member of the union shall maintain his/her membership in a branch of his/her choice. Rule 3(v) gives each member the right to transfer his/her membership for good cause from one branch of the union to another. By the 3(vii), member shall have the right to have his grievance processed by the union. Rule 3(ix) provides that a member shall pay his/her contribution to the union funds particularly through the check-off system. Exhibit A attached to the originating summons is a letter dated 14th September 2006 from applicant to his former employer, the Nigeria Airspace Management Agency (NAMA), authorizing them to deduct 1% of his monthly pension for a period of 2 years 7 mouths and pay same to the NUP. NAMA replied the applicant vide a letter dated September 2006 (Exhibit B attached to the originating summons) stating that 'action commenced as per your request and you would be duly informed when the remittance made. No where in the processes filed in this matter is it ascertainable that remittances of the applicant's dues to the NUP were actually made. Even when Exhibit C, a letter written by the applicant to the NUP President/General Secretary and dated 9th January 17, refers to attached documents evidencing the payment of check-off dues, these documents were actually not attached or exhibited before the court. Rule 3(ix) enjoins regular payment or dues by members. What the applicant could show was a request on part to have NAMA deduct arrears or dues of over two and half years and pay same to NUP. This is certainly not the regular payment of dues that Rule 3(ix) enjoins. The conclusion here must be that the applicant simply made this request to fulfill all righteousness so that he can contest the NLC election. But even at that, it is still not ascertainable if the applicant is actually a fee paying member of the NUP since there is no proof that remittances were actually made by NAMA to the NUP. This court was also not for the branch of the NUP that the applicant belongs to as enjoined by Rule 3(iv) and of this paints a doubtful picture of the membership status of the applicant in the NUP. And more worrisome is why the applicant chose not to utilize Rule 3(vii), which unions that a member shall have the right to have his grievance processed by the union. As a dispute of this sort against the NLC, one would have expected that the applicant would make the NUP a party to the action given that in truth it is affiliate unions that are members of the NLC and not individuals. Rule 4 of the NLC constitution provides that members of the NLC shall be only bona National Trade Union Organisations affiliated to the NLC in the manner prescribed Article 24. Article 24 then provides that all registered trade unions except Employers ' Senior Staff Associations shall be eligible for affiliation to the NLC. Both parties cc that the NUP is an affiliate member or the NLC. To underscore this, Article 25 vides for affiliate member unions to pay monthly dues to the NLC. Is it, therefore, individuals or affiliate unions that can lay claims on the NLC in terms of rights and entitlements? More specifically, when the applicant stales that he was denied a nomination form, was it his individual right or that of the NUP that was infringed? Interactively put, in an NLC election does the right to vote and be voted for belong to the individual or to affiliate unions? In relation to the matter at hand, we were referred to lick 30(I) or the NLC constitution, which provides as follows-- Nominations [or the election or National Officers or the Congress shall be endorsed and forwarded by the President and General Secretary (or any other authorized officers(s) or the affiliated union from where the candidate emerges. Curriculum Vitae of nominees shall be submitted to the General Secretary or the Congress at least 5 weeks before the forthcoming Congress-in-Session. Every such nomination shall be seconded by another union. The interpretation of this Article, the applicant sought to make a distinction between nomination simpliciter and nomination form; and that this provision does not preclude individuals from picking up the nomination forms pending endorsement/seconding by cir respective unions. The agreement that Article 30(1) is silent as 10 the question of nomination forms. This is where c other provisions or the NLC constitution must be brought to bear in order to discern the general import of the provisions or the constitution. We indicated earlier that it is affiliate unions that can be members of the NLC. A general look at the provisions or the LC constitution reveals that rights and obligations arc couched either in favor or against the affiliate member unions. For instance, Article 30(3) provides that should an affiliated union withdraw its nominee before the election and leave insufficient indicates to fill the existing number or scats or additional scats created, fresh dominations shall be accepted regardless of anything to the contrary in "these Article]s] and the Standing Order'. If we are still in doubt that the right belongs to the affiliated unions, then recourse must be had to Article 36(2) dealing with 'Rights' and Obligations' of affiliated members. Useful for the present matter is Article 36(2)(a)(ii), iii) and (iv), which provides as follows - (ii) ... Any delegate or affiliated organization shall have the right to vote on any issue before the Congress-in-Session and shall enjoy the right to be voted for, and to serve in any capacity in any organ of the Congress. (iii) Any affiliated organization shall have the right to challenge any action of the congress which it considers detrimental to the interests of the Trade Union Movement. (iv) Any affiliated organisation shall have the right to appeal to the Congress-in-Session on any decision or the National Executive Council which it deems to have been unjustly applied to it. From all of this, the right to vote and be voted for belongs to the affiliated unions; and the right to complain or appeal against a decision within the NLC also belongs to the affiliated unions. This presupposes that where individual members of affiliated unions are aggrieved by an NLC decision, the right of complaint must be pursued through or in conjunction with the sponsoring affiliated union. In other words, the applicant in the present case can only complain through or in conjunction with his sponsoring union, the NUP. The right in issue is first and foremost the right or the affiliated union. Although in appropriate circumstances this right may crystallize into a personal right, this been shown to be the case in the present matter where doubt even exists as to membership status of the applicant in the NUP. We, therefore, agree with the respondents that the applicant has not succeeded in convincing us that he has a right that has been infringed by the respondents. Even if such a right exists, the main complainant should be his union. He has not shown that his union is hostile or overtly indifferent to his plight as to warrant his having to embark on this suit in his personal capacity. This being the case, arguments on the validity or otherwise or the affidavits filed in this matter are not helpful in the resolution of the matter at hand. It is, for instance, unfortunate that the applicant would bring the respondents to court and yet depose to an affidavit (para. 8 of the further affidavit in support of the originating Summons) stating that 'the President, Adams Oshiomole and others are not competent to defend this suit, in view of the expiration of their tenure on 6th February 2007'. For all the reasons given above, we hold that the applicant has not made out a case to warrant the grant of the injunctive orders he prayed for. His case must, therefore, fail and is hereby dismissed. Judgment is entered accordingly. Hon. Justice B.B. Kanyip Presiding Judge Hon. Justice M.B. Dadda Hon. Justice M.A.B. Atilola Judge Judge.