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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: APRIL 18, 2012 SUIT NO. NIC/LA/63/2011 BETWEEN Academic Staff Union of Universities - Claimant AND 1. Dr. S.Y. Omoiya 2. University of Ilorin - Defendants REPRESENTATION S.O. Kehinde for the Claimant. Kehinde Ajide for the 1st Defendant. N.N. Adegboye for the 2nd Defendant. RULING The claimant filed a complaint against the defendants on the 5th July 2011 claiming the following reliefs: 1. A declaration that all purported elections into the Executive offices of the Academic Staff Union of University, University of Ilorin chapter which was conducted without the authorization of National Executive Council of ASUU is unconstitutional, illegal, null and void. 2. A declaration that the Dr Oloruntoba Oju led Executive of the University of Ilorin branch of the Union is the substantive and only recognisable Executive of the Academic Staff Union of Universities University of Ilorin Chapter. 3. An order of court compelling the 2nd defendant to immediately remit to the claimant the union check-off dues and its arrears from 2002 till date through the Dr Oloruntoba Oju led Executive of the University of Ilorin Branch of the Union. 4. An order of court compelling the authorities of the 2nd defendant to recognise Dr Oloruntoba Oju led Executive as the only recognised Executive of the Academic Staff Union of Universities University of Ilorin chapter. 5. An order of perpetual injunction restraining the 1st defendant and members of the unrecognised Executive, their agents and privies from parading themselves either as members of ASUU or executive members of ASUU university of Ilorin chapter. Accompanying the complaint is the statement of facts, Names of witnesses to be called and the copies of the documents to be relied on at the trial. In reaction the 1st defendant filed a notice of preliminary objection on the 1st November 2011 praying the court to strike out/dismiss the suit for incompetence and want of jurisdiction. The grounds upon which the objection is premised are: (1) The claimant not being a juristic personality lacks the locus standi to institute this action. (2) The action is statute barred. (3) Having regard to the pleadings and reliefs sought the claimant has no locus standi to file this suit. (4) The suit is improperly constituted and does not disclose any reasonable cause of action. (5) The reliefs sought are not cognizable in law, incompetent and cannot be granted by this Honourable court. The 2nd defendant filed a statement of defence on the 26th October 2011 and a preliminary objection on the 9th December 2011 also challenging the competence of this suit as presently constituted and praying for its dismissal in limine on the following grounds: (1) The claimant is not a juristic person who can maintain an action. (2) The claimant lacks the locus standi to institute this case. (3) This case as presently constituted discloses no cause of action or any reasonable cause of action against the defendant. (4) The case is statute barred. (5) The case is academic. (6) The honourable court lacks jurisdiction to entertain this case. Both defendants filed written addresses in support of their objections. The 1st defendants address is dated 20th October 2011 while the 2nd defendants is dated 7th December 2011. The claimant filed its written address on the 30th November 2011 in opposition to both objections. The 1st defendant on the 14th February 2012 filed a reply on point of law. Counsel adopted their written addresses. The 1st defendant raised 5 issues for determination as follows: 1. Whether the claimant not being a juristic personality has the locus standi to institute this action. 2. Whether the cause of action in this suit is not statute barred. 3. Whether having regard to the pleadings and reliefs sought, the claimant has locus standi to file this suit. 4. Whether the suit is properly constituted and discloses any reasonable cause of action. 5. Whether the reliefs sought are cognizable in law, not incompetent and cannot be granted by this honourable court. The 2nd defendant raised one issue only: Whether this honourable court has jurisdiction to entertain this matter having regard to the facts and circumstances of this case. The same submissions have been made by the defendants and will be taken together. Learned counsel to both defendants submitted that before a litigant can bring an action in a court of law, he must be a juristic person and that incorporation is a condition precedent for a non natural person to institute an action for a claim in a court of law. They submitted that the claimant is not a natural person nor a legal person known to law not having produced its certificate of incorporation. They submitted that assuming without conceeding the claimant is a registered body or association, it can only maintain an action through the Trustees as provided by section 673 and 679 of the Company and Allied Matters Act CAP ……… LFN 2004. The following authorities were cited Anyaegbunam v Osaka [2000] 3 SCL (incomplete citation) NNPC v Lutin Investment Ltd [2006] 2 NWLR (Pt 965) 806, Fawehinmi v N.B.A (No.2) [1989] 2 NWLR (Pt 105) 558 at 632, Abubakar v Yar’Adua [2009] All FWLR (Pt 457) 1, Idachaba v Ilona [2008] All FWLR (Pt 425) 1747, AG Kwara State v Olawale [1993] 1 SCNJ 208, Bank of Baroda v Iyalabani Co. Ltd [2002] 13 NWLR (Pt 785) 551, Lion of Africa Ins. Ltd v Esan [1999] 8 NWLR (Pt 614) 197, ACB Plc v Emostrade Ltd [1998] 2 NWLR (Pt 536) 19. They submitted that the claimant has not been able to prove that it is a registered entity under the Companies Act and therefore lacks the capacity to sue and be sued. They then urged the court to decline jurisdiction and strike out this matter. Counsel submitted that this action is statute barred. The 1st defendant’s counsel submitted that by the combined provision of the Limitation Law and section 151 of the Evidence Act, the action is statute barred not having been instituted within six years. He referred to section 68 (1) of the Lagos State Limitation Law 1975 and cited Alao v University of Ilorin [2008] 1 NWLR (Pt 1069) 421 at 426. He submitted that the claimant by its in action over a period of 9 years before instituting this action has acquiesced to the status of the ASUU branch of the University of Ilorin and are estopped from seeking to alter that position in this suit. He cited Araka v Ejeagwu [2000] 12 SCNJ 200 at 218, Osun State Government v Danlami Ltd [2007] All FWLR (Pt 365) 438, Jall Co. Ltd v Owoniboys Ltd [2005] 4 SCNJ 256 at 270. Learned counsel to the 2nd defendant submitted that the 2nd defendant is a Public Officer and enjoys some protection from litigation not brought within 3 months of accrual of cause of action. He referred to Section 2 (a) of the Public Officers Protection Act CAP P14 LFN 2004 and cited Amao v C.S.C [1992] 7 NWLR (Pt 252) 214 at 223, Ita v Archibong [1995] 4 NWLR (Pt 387) 83, Shell Petroleum Development Co. v Farah [1995] 3 NWLR (Pt 382) 148 at 185. He submitted that the cause of action arose in the year 2002 and that the claimant having failed to institute this action within 3 months of the accrual of cause of action is caught by the provisions of the Public Officers Protection Act. The defendants counsel submitted that for the claimant to be clothed with locus standi, he must prove that he has a legal right or sufficient interest in the subject matter which can only be determined by looking at the statement of claim. They cited Ilorin v Benson [2000] 9 NWLR (Pt 673) 570 at 578, Basinco Motors Ltd v Woermann – Line [2009] All FWLR (Pt 485) 1634 at 1639, Ojukwu v Ojukwu [2009] All FWLR (Pt 463) 1243 at 1244, C.B.N v Kotoye [1994] 3 NWLR (Pt 330) 66, Contract Resources Nig. Ltd v Wende [1998] 5 NWLR (Pt 549) 243 at 264. The defendants submitted that the claimant has failed to establish any legal or justifiable right and any special interest of the claimant that has been adversely affected for which it is seeking redress. Both defendants further submitted that the claimant has failed to show by the pleadings that it has locus standi to institute this action. On cause of action, the 1st defendant’s counsel submitted that the claimants action has failed to disclose any reasonable cause of action having failed to establish its legal right that has been or is about to be breached. He submitted that the case is improperly constituted not having disclosed the obligations of the 1st defendant to the claimant which has given rise to this cause of action. It is his contention that to this extent the 1st defendant has been wrongly made a party in this suit. He submitted that the suit is improperly constituted as the 1st defendant lacks the capacity and authority to defend this suit in representative capacity having been sued in his personal capacity and as allegedly an expelled member of the claimant. He cited Administrators/Executives of Estate of General Sani Abacha (Deceased) v Eke-Spiff [2009] All FWLR (Pt 467) 1, Rinco Construction Co. Ltd v Vee Pee Industries Ltd [2006] 9 NWLR (Pt 929) 85 and urged the court to dismiss the suit for lack of jurisdiction and competence. The 2nd defendant’s counsel submitted that a plaintiff cannot sue a defendant whom he has no cause of action against citing Mil Adu Akwa Ibom State v Obong [2001] 1NWLR (Pt 694) 214, Amedi v Essien [1994] 7 NWLR (Pt 354) 91. He submitted that the averments in the statement of claim do not disclose a cause of action against the 2nd defendant which has robbed the court of the necessary vires to entertain this matter. He urged the court to decline jurisdiction and strike out the matter. The claimant submitted 3 issues for determination as follows: 1. Whether the claimant is a juristic person and as such has the locus standi to institute this action. 2. Whether having regard to the facts of this suit, the cause of action is regulated by laws of Lagos State or is statute barred. 3. Whether having regard to the pleadings and reliefs sought the claimant has locus standi to file this suit, the suit is properly constituted and discloses any reasonable cause of action and the reliefs sought are cognizable in law, competent and can be granted by this honourable court. Learned counsel to the claimant submitted that a party instituting an action must have legal capacity also referred to as locus standi citing Shibaku v A.G. Zamfara State [2010] 10 NWLR (Pt 1202) (Incomplete citation). He submitted that juristic or legal personality can only be determined by the enabling law which can either be the Constitution or a Statute and that Section 6 (6) (b) of the 1999 Constitution confers on the court power to adjudicate between natural persons or juristic persons established by statute. It was his submission that the claimant is an Association that is duly registered and recognized by the Trade Unions Act Cap T14, LFN 2004 and is listed as the fourth Association in Part C, 3rd schedule of the Act. He referred to Section 5 (7) of the Trade Unions Act which provides that the Registrar of Trade Unions shall register Trade Unions specified in Part A and Part C of the 3rd schedule and submitted that where a fact is contained in an enactment, the court shall take judicial notice of it and such fact need not be proved. He relied on Section 122 (1), (2) (a) (b) of the Evidence Act 2011 and submitted that by virtue of this provision, it is not required that the claimant tenders a certificate of registration as the court has taken judicial notice of its registration and existence. The claimants counsel submitted that the claimant is a juristic person registered and recognised by the Trade Unions Act and does not need to be incorporated under the Companies and Allied Matters Act to be a juristic person as it is not regulated by CAMA. He cited Irabor v Dr Ilavbare (unreported) Suit No. NIC/EN/08/2009 ruling delivered on July 22, 2010. On issue 2, he submitted that the law applicable to an action or cause of action is the prevailing law applicable in the jurisdiction when the action was instituted citing Osakue v Federal College of Education (Tech) Asaba [2010) 30 WRN 43. He submitted that the cause of action in this suit arose in Kwara State and therefore the Lagos State Limitation Law is not applicable. He submitted that the cause of action is not statute barred as the act of the defendants in representing to the public that the 1st defendant is the chairman of the claimants branch at University of Ilorin and the monthly deduction of union dues from the salaries of the claimants members remitted to an unrecognised executive is a continuous one and the basis of this suit. He submitted that the reliefs sought by the claimant are on the grounds of the continuous violation of the Trade Unions Act and the constitution of the claimant. He submitted that in order to determine whether a claim is statute barred, the court is to examine the applicable limitation period provided in the enabling statute citing JFS Inv. Ltd v Brawal Line Ltd [2010] 18 NWLR (Pt 1225) 495. He urged the court to hold that the suit is not statute barred. Learned counsel referred to Cookey v Fombo [2005] 15 NWLR (Pt 947) 182 for the definition of a cause of action as well as Osigwe v PSPLS Management Consort Ltd [2009] 3 NWLR (Pt 1128) 378. He submitted that the claimant has disclosed a legal right against the defendants and that a cause of action has been established by the breaches of the claimants constitution by the defendants. He submitted further that the claimant has locus standi, it has disclosed a cause of action and the reliefs sought are cognizable in law. He submitted that the action is not statute barred and the court has jurisdiction to entertain this matter. He urged the court to dismiss the preliminary objection. Replying on point of law, learned counsel to the 1st defendant submitted that the conferment of legal personality on a Trade Union like the claimant is regulated by Part C of CAMA and not the Trade Unions Act. He submitted that there is nothing in Section 122 (1), (2) (a) & (b) of the Evidence Act to suggest that the incurable defect of non registration can be regularised by the listing of the claimant as one of the bodies in Part C of the Trade Union Act. It was also his submission that by the provisions of Section 18 of Kwara State Limitation Edict CAP 89, 1991, the action is statute barred not having been brought within 5 years from the date the cause of action accrued. I have carefully considered the processes filed, submissions of counsel and the authorities cited. The issue to be resolved is whether this court has jurisdiction to entertain this matter. I will begin with the defendants submissions that the claimant is not a juristic person not having been registered by Part C of CAMA. This is not the correct position of the law as it relates to Trade Unions, the claimant being a trade union. As a general rule, only juristic persons have the right to sue and be sued in their names. Non legal persons or entities may neither sue nor be sued except where such right to sue or be sued is created and/or vested by or under a statute. In the case of Iyke Medical Merchandise v Pfizer [2001] 10 NWLR (Pt 722) 540 at 555 to 556, the Supreme Court on categories of juristic persons held as follows: Juristic persons who may sue or be sued eo nomine have been recognised to include: (a) natural persons, that is to say, human beings; (b) companies incorporated under the Companies Act; (c) corporations aggregate and corporations sole with perpetual succession; (d) certain unincorporated Associations granted the status of legal personae by law such as:- (i) registered Trade Unions; (ii) partnerships; and (iii) friendly Societies or Sole proprietorships. The claimant is an Association listed as the 4th in Part C, 3rd schedule of the Trade Unions Act CAP T14, LFN 2004 and by virtue of the provisions of Section 5 (7) of the Act the Registrar of Trade Unions shall register the claimant. This court has taken Judicial notice of the fact that the claimant has already been clothed with legal personality by the law in a plethora of cases. See the recent decision in Emmanuel Irabor & Ors v Dr K.O. Ilavbare & Ors (unreported) NIC/EN/08/2009 ruling delivered on July 22, 2010. I therefore hold that the claimant is a juristic person capable of suing and being sued whose activities are regulated by the Trade Unions Act CAP T14, LFN 2004. The defendants have argued that this action is statute barred as the cause of action arose 2002 and counsel to the 2nd defendant has submitted that regarding the 2nd defendant, the action is caught by the provisions of Section 2 (a) of the Public Officers Protection Act CAP P14 LFN 2004. The claimant on the other hand argues that the damage is a continuous one and is not statute barred. The general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the claimant, proceedings shall not be brought after the period prescribed by statute. A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the Limitation Law has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, FBN Plc v Associated Motors [1998] 10 NWLR (Pt 570) 441, Sadiq v Akinkunmi [2000] 2 NWLR (Pt 696) 101. The Law of Limitation recognises some exceptions. Where there has been a continuance of the damage, a fresh cause of action arises from time to time as often as damage is caused. See Aremo II v Adekanye [2004] All FWLR (Pt 224) 2113. It is pertinent at this stage to reproduce certain paragraphs of the statement of facts: 4. The claimant avers that some time in year 2002, it embarked on a nation wide strike involving all its members in all its affiliate Institutions. 5. That as a result of the strike some of their members in the University of Ilorin including the branch chairman Dr Oloruntoba Oju and the members of the executive of the University of Ilorin branch of the Union had their appointment illegally terminated which brought the University into confrontation with the claimant. 6. The sacked members filed an action in court to contest the illegal termination of their appointment. 7. While the action was pending in court and in accordance to the practice and convention of the claimant, the claimant gave specific instructions to its members at the University of Ilorin not to conduct any election for an elective position to the Executive of the Branch pending the resolution of the litigation in court. 8. The claimant continued to recognise the Dr Oloruntoba Oju led Executive as the duly elected Executive of the University of Ilorin Chapter of the Academic Staff Union of Universities. 9. After several years of litigation in court, the Supreme Court of Nigeria Re-instated the sacked members and the branch Executive to their employment with the University. 10. That in accordance with the constitution of the claimant, Election into Executive of various branches of the Union is determined by the National Executive Council of the Union at it meetings. The claimant pleads the constitution of the union and shall rely on it at the trial shall rely on same at the trial. 11. That contrary to the express instruction of the claimant and in flagrant breach of the claimant constitution, the 1st defendant in conjunction with the 2nd defendant purported to conduct an illegal election into the Executive offices of the University of Ilorin branch of the without the approval of the National Executive Council of the claimant. 12. As a result of above breach of the Constitution of the claimant, and other obvious misconduct, the 1st defendant and members of his unrecognised Executive branch were expelled from the union for anti-Union activities. The claimant shall rely on all correspondence relating to the expulsion of the 1st defendant from the Union. 14. That the Dr Oloruntoba Oju and his secretary has always being attending the NEC meetings as the recognised chairman and secretary respectively of the University of Ilorin Branch of the Union. 15. That since the illegal termination of the appointment of some members of the claimant in 2002, the 2nd defendant has continued to hold onto the check-off dues of the union without any justification. 16. That despite the deducting the check-off dues from the salaries of its members at the University of Ilorin Chapter of the union, the 2nd defendant has refused, neglected and failed to remit the check-off dues to the claimant. 17. The 2nd defendant is in arrears of 9 years check-off dues meant for the claimant. In the case at hand, the statement of facts shows that there was an earlier dispute between the parties which resulted in litigation, non remittance of check off dues to the claimant and two parallel Executives of the University of Ilorin chapter of the claimant. The general state of the law is that time does not run in the eyes of the law when a litigation in a matter continues and has not abated or come to an end. See ACB Ltd v Nnamani [1991] 4 NWLR (Pt 186) 486 at 496 – 497 per Tobi JCA. Moreover, the complaint of the claimant is that the 2nd defendant has continued to recognise the 1st defendant and his team as the Executive of the University of Ilorin chapter of the claimant and has continued to deduct union check off dues from the salaries of its members without remitting same to the claimant since 2002. This is in contravention of section 17(b) of the Trade Unions Act CAP T14 LFN 2004 which provides that check off dues should be remitted to the registered office of the trade union within a reasonable period. This in my view is a continuance of damage which has not abated since 2002 when the cause of action initially arose. I therefore hold that this action is not caught by the Limitation Laws of Kwara State or Section 2 of the Public Officers Protection Act CAP P14 LFN 2004. On the issue of locus standi, I find that the claimant has discharged the onus on it to show it has locus standi. It has shown from its statement of facts that it has a justiciable interest which has been continuously violated in respect of which it ought to be heard. See Adesanya v President FRN & Ors [1981] 12 NSCC 146, Owodunni v Registered Trustees of CCC & Ors [2000] 6 S.C (Pt iii) 60. I hold that the claimant has locus standi to file this action which is properly constituted and discloses a reasonable cause of action against the two defendants. For all the reasons given above, the two preliminary objections fail in their entirety and are hereby dismissed. The matter shall proceed to hearing. Costs of N10,000.00 is awarded against each of the defendants in favour of the claimant. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae