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This action was instituted by the Claimant against the defendants vide a General Form of Complaint dated 15th December, 2011 and filed the same day. The General Form of Complaint was accompanied with the Claimant’s Statement of Facts, List of Witnesses, Constitution of the Senior Staff Association of Universities, Teaching Hospitals, Research Institutes and Associated Institutions [hereinafter referred to as SSAUTHRIAI]. It was not until 16th January, 2012 that the 1st & 2nd defendants herein filed their Memorandum of Appearance. On 19th January, 2012, the claimant filed a motion on notice dated the same day. By this motion, the claimant sought to join the 4th defendant herein. The 1st & 2nd defendants filed their joint statement of defence vide a motion on notice dated 31st January, 2012 and filed on 17th February, 2012; by which they prayed the Court for an order extending the time within which to file their statement of defence, list of witnesses and copies of documents to be relied upon and a deeming order in respect of the processes already filed and served. Now, to the issue at hand, the 4th defendant/applicant filed a motion on notice dated 29th May, 2012 which was filed on 31st May, 2012. The motion on notice brought pursuant to Order 15 of the National Industrial Court Rules, 2007 [NIC Rules] was supported by an affidavit of 12 paragraphs deposed to by the 4th defendant herein. The motion on notice is seeking an order of the Court dismissing and or striking out the suit against the 4th defendant/applicant for want of jurisdiction. The motion on notice is predicated on the ground that: “A pre-condition for bringing an action against the 4th Defendant has not been complied with as required by law, See S. 5(2) Trade Unions Act 2004.” The 4th defendant/applicant also filed a written address in support of the motion on notice. The written address dated 29th May, 2012 was filed along with the motion on notice and Annexure A – E. On its part, the claimant responded by filing a counter-affidavit dated and filed on 11th December, 2012 along with a reply to the written address of the 4th defendant/applicant. Consequent upon the response of the claimant herein, the 4th defendant/applicant also filed a further affidavit in support of the motion on notice and a written address in further support of the 4th defendant/applicant’s objection to the claimant’s suit. Both processes were dated and filed 8th January, 2013. Furthermore, by an order of the Court, the 4th defendant/applicant on 10th January, 2013 also filed a response to the claimant’s oral submission/amplification of its case. I will return to this later in the course of this ruling. The 4th defendant/applicant’s motion on notice praying for the dismissal or striking out of this suit came up for hearing on the 8th of January, 2013. On that day, the claimant was absent while the 4th defendant/applicant was in Court. Mr. Ranti Ajeleti of counsel represented the claimant. Mr. Nnanna O. Ibom of counsel, with him E. J. Okemini, Esq., appeared for the 1st & 2nd defendants. The 4th defendant/applicant was represented by Chief Theo Nkire of counsel with him Chimere Akoma, Mis Victory Abebe and Ozichi Nkire appeared for the 4th defendant/applicant. While moving his motion, learned counsel for the claimant, Chief Theo Nkire submitted that the motion on notice praying for an order of the Court dismissing or striking out this suit was brought under Orders 15 & 11(1) of the NIC Rules. Counsel moved in terms of the motion paper and adopted the written addresses dated 29th May, 2012 and the written address in further support of the motion on notice dated 7th January, 2013. Counsel also sought to rely on the affidavit and further affidavit in support of the motion on notice. Learned counsel submitted that section 3(2) of the Trade Unions Act Cap T14, LFN 2004 [TUA, 2004] is in conflict with section 40 of the 1999 Constitution as amended. Let me now consider the arguments of the 4th defendant as per his written addresses, affidavit and further affidavit earlier referred to. In his written address dated 29th May, 2012, the 4h defendant/applicant formulated 5 issues for determination as follows: 1.0.1 Whether an objector to the registration of a trade union can without lodging an objection with the 1st Defendant as required by S. 5(2) of the Act proceed to Court in an effort to protest the registration of the Union? In other words, does Section 5(2) of the Trade Union Act provide for a precondition to an action against the 4th Defendant? 1.0.2 If the answer to 2.0.1 (sic) above is in the negative, did the plaintiffs fulfill that precondition before they came to Court? 1.0.3 What is the effect of non-compliance with a precondition to an action? 2.0.4 What is the proper interpretation of S.3 (2) of the Trade Union Act? Can the phrase “in a place where there already exists a trade union” apply to a union formed by “regrouping existing trade unions” such as the 4th Defendant? 2.0.5 Is S.3 (2) of the Trade Union Act not in conflict with S.40 of the Nigerian Constitution 1999? Counsel for the 4th defendant/applicant submitted that he would argue the first three (3) issues together. Learned counsel quotes the provision of section 5(2) of the TUA, 2004 thus: “The Registrar shall cause a notice of the application to be published in the Federal Gazette, stating that objections to the registration of the trade union in question may be submitted to him in writing during the period of three months beginning with the date of the Gazette in which the notice is published.” Counsel submitted that it is not within the contemplation of the law that an objector can proceed to court without first submitting an objection to the 1st defendant herein in compliance with the provision quoted above. It was further contended by counsel that section 5(3) of TUA provides another timeline of three months during which the 1st defendant is to consider the objections received during the first three months. He submitted that it could not have been the intention of the law that two different subsections of the Act would each stipulate a period of three months during which certain events are to take place only for the same Act to render nugatory the effect of the subsections. He therefore submitted that it is a condition precedent for an objector to the registration of trade union to first file an objection with the 1st defendant. And that it is only when the objector is dissatisfied with the decision of the 1st defendant that he can proceed to Court. According to the counsel for the 4th defendant/applicant, where the objector fails to fulfill the condition precedent, the non-compliance would have robbed the court of jurisdiction to entertain his action. He submitted that 4th defendant/applicant’s application for registration was made to the 1st defendant and that the application was approved by the 2nd defendant as required by law. He stated that the notice of the registration of the 4th defendant/applicant was published in the Federal Gazette (Annexure “A”) on 2nd June, 2011. He also submitted that by the said publication, objectors had three months within which to file their objections and that no objection was received by the 1st defendant within the said 3 months period. He submitted that a court is said to have jurisdiction when: (a) It is properly constituted as regards the number and qualification of its members and when no such member is disqualified for one reason or the other; (b) 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 (c) the case comes before the Court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction. On this proposition, counsel cited the cases of MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 UBA V. ADEMOLA (2009) 8 NWLR (Pt. 1142) 113 at 129 Paras. A-C and GOBANG V. SHELIM (2003) 3 NWLR (Pt. 807) 286 at 298, Paras. C-D. On the basis of the authorities he has cited, counsel submitted that in the absence of an objection first filed by the claimant herein and considered by the 1st defendant, this Court will lack necessary competence to adjudicate in this matter as against the 4th defendant/applicant. Learned counsel submitted that section 5(2) TUA, 2004 constitutes a condition precedent to an action against the 4th defendant/applicant. He submitted that the claimant did not comply with the condition precedent and that this Court is consequently robbed of jurisdiction and the action of the claimant rendered nugatory. On issue No. 4 relating to the proper interpretation of section 3(2) TUA counsel for the 4th defendant/applicant referred to the provision of S.3(2) TUA which provides that: “No combination of workers or employers shall be registered as a trade union save with the approval of the Minister on his being satisfied that it is expedient to register the union either by regrouping existing trade unions, registering a new trade union or otherwise howsoever, but no trade union shall be registered to represent workers or employers in a place where there already exists a trade union.” Interpreting S.3 (2) TUA above, counsel contended that by this provision, the Minister may approve the registration of a trade union if he is satisfied that it is expedient to register the union: (a) by regrouping existing trade unions; (b) by registering a new one; and (c) or otherwise howsoever. It was argued by learned counsel that the word “otherwise” is defined by the Concise Oxford Dictionary of Current English at page 966 to mean [i] “in the circumstances other than those considered.” He therefore submitted that the Minister is not limited in his power of approving an application seeking the registration of a trade union, as he may register a union by regrouping an existing union, create a new union or approve a union arising from circumstances other than those two methods specifically mentioned. In the contention of counsel for the 4th defendant/applicant, the Minister’s power to approve an application for the registration of a trade union by regrouping an existing union can only be exercised “in a place where there already exists a trade union.” Other than this, counsel contended that it is difficult to think of how a trade union can arise from the regrouping of a trade union where there does not already exist a trade union. Counsel submitted that there must be something on the ground for the Minister to regroup or else, the power is meaningless. On behalf of the 4th defendant/applicant, it was further submitted that the proviso that no trade union may be registered “in a place where there already exists a trade union” can only apply to an application for a new trade union. But that it cannot apply to an application for the registration of a trade union formed by regrouping an existing trade union. He argued that the attempt by the claimant to extend the application of the proviso to apply to the situation of the 4th defendant where the emerging trade union has arisen from the regrouping of an existing trade union (that is the claimant) would lead to absurdity. Counsel urged the Court not to allow such an extension of interpretation. Issue No. 5 formulated by the 4th defendant/applicant is as follows: “Is S.3 (2) of the Trade Unions Act not in conflict with S.40 of the Nigerian Constitution 1999?” On this issue, counsel submitted that even if the proviso ‘in a place where there already exists a trade union” is assumed (without conceding) to apply to a trade union formed by regrouping, then such an interpretation will offend S.40 of the 1999 Constitution as amended. S.40 provides that: “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.” He said that it is significant that the section specifically mentions only 2 associations, which are “trade union” and “political party.” He also submitted that it is significant that the proviso to section 40 of the 1999 Constitution as amended curtails or abridges the citizen’s right to form or belong to a political party it does not curtail or abridge the right of the citizens to form or belong to a trade union of his choice. He contended that the right of the citizen (4th defendant) in this respect cannot be curtailed or abridged by S.3 of the TUA. Counsel submitted that such attempt to curtail the right of the 4th defendant must fail by virtue of S.1 (3) of the 1999 Constitution as amended. Finally, counsel urged the Court to strike down S.3 (2) of TUA and allow the citizen (4th defendant) enjoy his unfettered right to freedom of association as guaranteed under the Constitution. After the submissions made by counsel for the 4th defendant/applicant, it was the turn of counsel for the 1st & 2nd defendants to react. Learned counsel for the 1st & 2nd defendants aligned himself with the position of the defendant/applicant’s counsel, particularly, on S. 5(2) of TUA. On his part, learned counsel for the claimant submitted that he had filed a counter-affidavit of 12 paragraphs coupled with a written address dated 7th December, 2012. Counsel applied to the Court for the adoption of the counter-affidavit and the written address. Counsel argued that Exhibit “G” when compared with Annexure “A” will reveal that Annexure ‘A” does not exist. He also submitted that both Annexure “A” and Exhibit G are public documents and can only be admitted in evidence in the form of certified true copies. He submitted that the two documents are in conflict. Counsel urged the Court to discountenance Exhibit G and Annexure “A.” Learned counsel for claimant referred the Court to the motion on notice dated 01/12/11 and filed on 15/12/11, paragraphs 9-10 of the affidavit in support of the motion and, in particular, Exhibit A – which is Notice of Objection. Let me also consider the reactions of the claimant as contained in his written address. The claimant chose to react to issues 1, 2, & 3 formulated by counsel for the 4th defendant/applicant. Counsel for the claimant submitted that Annexure “A” attached to the affidavit in support of the 4th defendant/applicant’s motion on notice shows that the said notice, if it was a notice at all, took effect from 1st December, 2011 and not 2nd June, 2011 as canvassed by the applicant herein. He submitted that the TUA does not limit the presentation of an objection to a specific mode and that this action filed on January 4, 2011 (within a month from 1st December, 2011) represents a more effective way of raising an objection to the registration of a trade union. He said that the claimant had all along protested to the 1st & 2nd defendants about the registration of the 4th defendant’s group. He argued that the claimant proceeded to Court when it realized that the 1st & 2nd defendants were taking side with the 4th defendant/applicant. Furthermore, counsel submitted that the non-reference to Annexure “A” by the 1st & 2nd defendants cast a shadow on the existence of the Annexure. He therefore urged the Court to discountenance all other questions raised by the 4th defendant/applicant in respect of Annexure “A”. Learned counsel for the claimant submitted that S. 3(2) of TUA cannot by any stretch of imagination be extended to breaking up of “existing Trade Union.” Counsel argued that the regrouping of an existing trade union can happen where there emerges new interest that is never covered by an existing union. He therefore argued that the applicant has to show that an existing union to be broken up could not or has not covered the interest of the union to be created or else, the provision of S.39 (2) of TUA is strict on the fact that an existing union cannot be broken into pieces. Counsel for the claimant urged the Court to strike out issue No. 4 formulated by the 4th defendant/applicant. It was submitted on behalf of the claimant that S.3 (2) of TUA is not in conflict with S.40 of the 1999 Constitution as amended. He argued that in interpreting S.40, the intention of the makers of the Constitution must be considered, and that it was not intended that every Dick and Harry should set up a trade union. He submitted that this was the reason why the Ministry of Labour was established to superintend the formation of trade union bodies, and that this was necessary in order to avoid a situation where we have a deluge of trade unions. It was the contention of counsel that the freedom of association guaranteed by the Constitution is not of extreme nature or else, the society will pay for it. Finally, counsel submitted that the absolute freedom advocated by the applicant herein negates the provision of S. 45(1) of the 1999 Constitution as amended. While orally amplifying his counter-affidavit and written address, counsel for the claimant submitted that Exhibit G and Annexure “A” are in conflict. Counsel referred the Court to the claimant’s motion dated 01/12/11 and filed 15/12/11 and paragraphs 9 & 10 of the supporting affidavit, and more particularly, Exhibit A – which is a notice of objection. Finally, counsel referred the Court to the following cases on the constitutionality of the claimant’s cases: 1. NIGERIAN NURSES ASSOCIATION & ANOR V. A.G. FEDERAL (1981) 11-12 SC 1; 2. ERASMUS OSAWE & 20 ORS V. REGISTRAR OF TRADE UNIONS (1985) 1 NWLR (Pt. 4) 755; 3. OKAFOR V. OKAFOR (2000) FWLR (Pt. 1) 17 at 25. Counsel urged the Court to dismiss the 4th defendant/applicant’s preliminary objection and proceed to hear this matter on its merit. After the claimant’s counsel had finished his argument in opposition to the applicant’s motion on notice, counsel for the 4th defendant/applicant orally sought leave of the Court to react to some of the cases cited by counsel for the claimant/respondent when amplifying his reply address. Counsel based his application on the ground that these cases were not cited in the reply address of the claimant/respondent before the Court. Based on the oral application of counsel for the 4th defendant/applicant, the Court ordered the claimant to furnish the authorities cited to the Court and counsel for the 4th defendant/applicant. The Court also ordered the counsel for the 4th defendant/applicant to file its reactions to the authorities within 7 days of service of the authorities on him. It is therefore now appropriate for me to consider the 4th defendant/applicant’s reaction to the authorities cited on behalf of the claimant/respondent. I have earlier stated that the counter-affidavit and written address filed by the claimant prompted the applicant herein to file a further affidavit and a written address. I will now summarize the arguments of the 4th defendant/applicant in both his “WRITTEN ADDRESS IN FURTHER SUPPORT OF 4TH DEFENDANT’S OBJECTION TO CLAIMANT’S SUIT” dated 7th January, 2007 and filed on the following day and also in his “4TH DEFENDANT’S RESPONSE FILED BY ORDER OF COURT TO CLAIMANT’S ORAL AMPLIFICATION IN OPPOSITION TO 4TH DEFENDANT’S APPLICATION TO STRIKE OUT CLAIMANT’S SUIT” dated 8th January, 2013 and filed on 10th January, 2013. The latter was filed in reaction to the cases cited and relied upon by counsel for the claimant while amplifying his written address. I will start with the written address in further support of the 4th defendant’s objection to the action of the claimant. Learned counsel reacted to the following arguments made by the claimant’s counsel wherein it was argued on behalf of the claimant that S. 3(2) of TUA is not in conflict with S. 40 of the 1999 Constitution as amended. That if the gate were left opened, there would be a deluge of trade unions such that the 1st & 2nd defendants would find it difficult to cope and the freedom the 4th defendant/applicant is seeking is curtailed by S. 45(1) of the 1999 Constitution as amended. Learned counsel submitted that the claimant’s recourse to S. 45(1) of the Constitution reveals an intrinsic admission that S. 3(2) conflicts with S. 40 of the Constitution. Counsel amplified this by stating that it was because the claimant realized that S. 3(2) TUA conflicts with S. 40 of the Constitution that the claimant sought to invoke S. 45(1) of the Constitution to reasonably justify the provision of the TUA under reference. Counsel submitted that the phrase “reasonably justifiable in a democratic society” has been given judicial interpretation in a number of cases. In this regards, counsel cited the case of AWOLOWO V. FEDERAL MINSTER OF INTERNAL AFFIARS (1962) LLR 1777 where the Federal Supreme Court, per Bairamian, F.J. stated that: “[t]hese words ‘reasonably justifiable in a democratic society’ must be read in the contest of the Constitution, and more particularly, of Chapter III (now our Chapter IV) in which they occur. The Chapter confers certain fundamental rights which are regarded as essential and which are to be maintained and preserved; and they are to serve as a norm of legislation under majority rule, which is the form of rule pervading the Constitution. If they are to be invaded at all, it must be only to the extent that is essential for the sake of some recognized public interest and may not be farther.....what really matters is the application of laws and regulations to the individual case.” Learned counsel further submitted that the Courts have held that: “[i]n order to determine whether a law is reasonably justifiable in a democratic society or not, the history of that law and the surrounding circumstances in which that law came into our statute books, the underlying object of that law and the mischief or evil it was aimed at preventing must of necessity be considered; see the Indian case of Virendra v. Punjab (1958) SCR 308; Air 1957 SC 896 considered; State v. Ivory Trumpet Publishing Ltd. (No. 2), 1983 (1) NCR 203 at 227 HC Anambra State”. In the light of the above decision, counsel submitted that it is necessary to enquire whether S. 3(2) of TUA which abridges the citizen’s right to form a trade union “in Place where there already exists a trade union” is for the sake of some recognized public interest or whether it goes “farther” than some recognized public interest. Counsel submitted that the TUA came into being in 1973 soon after the Nigerian civil war when there was proliferation of trade unions in Nigeria. He argued that the aim of the law and the mischief or evil it was enacted to curtail was the number of trade unions and streamline them for greater performance and efficiency. He submitted that the claimant was the only trade union in the entire education sector. He further submitted that with the passage of time, it became obvious that the claimant was too large, amorphous and utterly incapable of catering for the numerous interests of the various groups that constituted the union, namely, the Universities, the Research Institutes, the Polytechnics, the Colleges of Education; even the National Library. He said that overtime; many trade unions have been formed from within the place where the claimant already existed. Flowing from the above, counsel submitted that today, the University sector alone has two unions namely, the Academic Staff Union (ASSU) and the Senior Staff Association of Universities (SSANU), and that now, there is the SSUCOEN. It was the contention of counsel that the emergence of these new unions has neither led to a proliferation nor a “deluge” as alleged by the claimant. He said the new unions have rather led to a stronger and more efficient trade union movement in Nigeria making the workers to be happier and more productive. The 4th defendant/applicant’s counsel argued that the United State and India are two countries having provisions similar to S. 45(1) of our Constitution. Relying on the views expressed in Basu’s Commentary on the Constitution of India (pages 155-157) and adopted in CHERANCHI (DAHIRU) V. CHERANCHI (Alkali) 1960 NNLR 24 HC North, counsel for the applicant submitted that under the Constitution of the U.S.A., the test of reasonableness of a restriction upon a fundamental right are as follows: “[i]t must have a just relation to the protection of the public within the scope of the “police power.” In other words, the restriction must be reasonably necessary in the interests of public health, morals, safety or welfare. It must have a real and substantial relation to the object sought to be attained by the restriction or regulation, and such object must be one in the interest of which the state is entitled to exercise its police power. (ii) The restriction must not be in excess of the requirement. In other words, the freedom must not be abridged or curtailed unduly or arbitrarily.” Learned counsel also cited the Indian case of STATE OF MADRAS V. G. RAO, All Indian Reports, 1952 SC 196 at 199-200, the Court stated that no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter to judicial verdict. Counsel submitted that the Court in CHERANCHI (supra) stated that in order to be “reasonable” under the Indian Constitution, the restriction must have a reasonable relation to the object which the Legislature seeks to achieve and must not go in excess of that object. It was submitted by counsel that there is no reason to suppose that the standards adopted in the U.S.A. and India should not be applied in Nigeria. He submitted that under S. 45(1) (a) & (b), laws that are reasonably justifiable in a democratic society may not be invalidated even if they offend against S. 40 of the Nigerian Constitution provided they are made in the interest of defence, public safety, public order, public morality or public health or they are made for the purpose of protecting the rights and freedom of other persons. According to the counsel for the 4th defendant/applicant, a number of questions could be asked in relation to S. 3(2) of TUA thus: First, whether S. 3(2) of TUA which forbids the registration of the 4th defendant ‘in a place where there already exists a trade union’ is reasonably justifiable in a democratic society? He submitted that if this question is answered in the negative, then that would be the end of the enquiry. He submitted that if the provision is found to be reasonably justifiable, then some other questions would follow such as: (i) whether the provision is in the interest of defence; (ii) whether it is in the interest of public safety; (iii) whether it is in the interest of public order; (iv) whether it is in the interest of public morality; (v) whether it is in the interest of public health; or (vi) whether it is made for the purpose of protecting the rights and freedom of others? Responding to the above questions, counsel for the applicant herein submitted that S. 3(2) of TUA which forbids the registration of the 4th defendant/applicant is not reasonably justifiable in a democratic society such as Nigeria. And that it is an unnecessary abridgment of the unfettered right of the citizen to associate freely with others and in particular, to form a trade union for the protection of her interests as provided for in section 40 of the 1999 Constitution as amended. In the event that the Court holds that the provision is reasonably justifiable, counsel submitted that the 4th defendant/applicant which is an Association of teachers and school administrators poses no threat to public defence, and its prohibition cannot be in the interest of public safety, public order, public morality or public health. According to the applicant’s counsel, the court in CHERANCHI V. CHERANCHI supra, in adopting the view of Basu earlier referred to stated that the freedom sought to be invaded must not be curtailed unduly or arbitrarily. He stated that the word ‘undue” is defined at page 1524 of the Concise Oxford Dictionary of Current English as “excessive, disproportionate, not suitable...” While the same Dictionary defines the word “arbitrary” at page 63 as “based on or derived from uninformed opinion or random choice; capricious.” Based on the above definitions, counsel submitted that the freedom in question must neither be curtailed excessively nor curtailed disproportionately. It was contended that a situation where the Universities are allowed to form 2 trade unions while restricting the freedom of the 4th defendant/applicant from doing the same may be construed as unaccountable or whimsical change of mind or conduct in the application of the law. Relying on the earlier cited case of AWOLOWO, counsel submitted that “what really matters is the application of laws and regulations to the individual case.” On some other tests of reasonableness, counsel referred to the case of MANDRAS supra. Learned counsel submitted that in considering the case of the 4th defendant/applicant, the Court should consider the circumstances of its application, the prevailing circumstances at this time where the various units that made up the claimant have been allowed to go while at the same time preserving the original intendment of the law which is to prevent a proliferation of trade unions or what the claimant has called a deluge of trade unions. On the argument of the claimant (on issue No. 4 formulated by the applicant) that the issue of regrouping can only occur where there a new interest arises which is not covered by an existing union, counsel for the 4th defendant/applicant submitted that the claimant has neither disclosed the source of its theory nor revealed what new interest arose when it allowed the registration of ASSU, SSANU, ASUP etc. He submitted that there is no need for new interest to arise before a new trade union can be formed from an existing one but that all that is required is for applicants to comply with the requirements stipulated by law and for them to have common interest in forming the trade union and; seek and obtain “the approval of the Minister on his being satisfied that it is expedient to register” just as the 4th defendant has done in this instance. The applicant’s counsel urged the Court to hold that S. 3(2) of TUA is inconsistent with the provisions of S. 40 of the Constitution as amended and that the said S. 3(2) of TUA is not reasonably justifiable in a democratic society since it is neither in the interest of defence, public safety, public order, public morality, or public health. He finally submitted that S. 3(2) of TUA is not for the purpose of protecting the rights and freedom of other persons. On the case of ERASMUS OSAWE V. REGISTRAR OF TRADE UNIONS supra cited by the claimant’s counsel, the 4th defendant’s counsel submitted that what happened in the case of Osawe was different from the facts of this case. He submitted that in Osawe’s case, the Registrar of Trade Unions refused to register the union. This meant that the Registrar exercised his discretion against the appellant. This prompted the appellant to invite the court to substitute its discretion for that of the Registrar by ordering the Registrar to register the trade union. The Supreme Court in affirming the decision of the Court of Appeal refused the invitation of the appellant. According to counsel, the facts of this case differ from that in Osawe’s case in that the Minister exercising his discretion registered the 4th defendant herein. Counsel referred the Court to Annexure G. He stated that the decision of the Registrar prompted the claimant (like the appellant in Osawe) to invite this Court to substitute its discretion for that of the Minister. According to counsel, the case of the 4th defendant (like the defendant in Osawe’s case) is that the Court should not substitute its discretion for that of the Minister since it is not in the nature courts to do so except where the discretion has not been exercised judicially and judiciously. The case of UBEH V. ETUK (2012) 15 NWLR (Pt. 1323) 387 at 403) was cited. It was the contention of the 4th defendant that the claimant herein has not alleged that the Minister did not exercise his discretion judicially and judiciously. Furthermore, counsel for the 4th defendant/applicant submitted that the Minister under the law has unfettered power to either to register or not register a trade union. He submitted that the Minister was satisfied that it was expedient to register the 4th defendant as conveyed in Annexure G while the Registrar in Osawe’s case was satisfied that it was not expedient to register the appellant. Counsel for the 4th defendant urged the Court to ignore claimant’s reliance on Osawe’s case as authority on its invitation to His Lordship to substitute His Lordship’s discretion for that of the Minister as the trial court did in Osawe’ case but reversed on appeal. Counsel urged the Court to take cognizance of the prevailing conditions in the trade union movement where today smaller but stronger and more efficient trade unions have emerged from the 70 trade unions listed in Gazette No. 6 vol. 65 of 8th February, 1978. He argued that the modern trend is to register smaller and more efficient trade unions that are more service-oriented, noting that this explained why unions like ASSU, SSANU, ASUP, SSANIP have emerged from the claimant: all created from a place where there already existed a trade union. On the other case of NIGERIAN NURSES’ ASSOCIATION & ANOR V. A.G. FEDERATION supra cited by the claimant, counsel submitted that the case is not an appropriate for the issue at hand. He stated that in the case of Nigerian Nurses’ Association, the issue of whether or not the Minister was satisfied that it was expedient to register a trade union did not arise but that the case dealt with the legal competence of the appellant to sue after her name was removed from the list of trade unions. Counsel urged the Court to disregard the authority and allow the Minister’s exercise of discretion to stand. Counsel also submitted that the Court should grant the application of the 4th defendant/applicant by dismissing/striking out the claimant’s suit. I have painstakingly read and considered the processes filed, annexure referred to, arguments of counsel and the authorities cited on behalf of the parties to the suit. I am inclined to determine this application on the basis of the issues formulated for determination by learned counsel for the applicant. It suffices to state that in my considered view, resolution of the first 3 issues formulated by the 4th defendant/applicant will sufficiently dispose of this application. I arguing issues 1-3, learned counsel for the 4th defendant submitted that the claimant herein failed to comply with the precondition provided in 5(2) of TUA. It is not expedient for me to reproduce the provision of S. 5(2) of TUA here having reproduced it above. Specifically, counsel argued that the claimant failed to lodge an objection to the registration of the 4th defendant/applicant within three months from the date of publishing the notice of the registration of the applicant in Annexure “A.” The 4th defendant argued that the claimant ought to have lodged an objection to its registration with the 1st defendant within three months from 2nd June, 2011 when the notice of registration was published in Annexure “A”. Learned counsel also stated that by virtue of S. 5(3) of TUA, the 1st defendant has three months within which to consider any objection received. He stated that it is only when an objector is dissatisfied with the decision of the 1st defendant regarding any objection raised that the objector can proceed to court. Counsel argued that this Court is robbed of jurisdiction to hear this suit because the claimant has failed to lodge any objection within 3 months as required by S. 5(2) of TUA. By way of response, learned counsel for the claimant submitted that Annexure “A” is dubious and therefore, does not exist. He further submitted that the notice in Annexure “A”, if a notice at all, took effect from 1st December, 2011 and not 2nd June, 2011 as contended by the 4th defendant. Based on this, it was submitted that this action which represents a more effective way of raising an objection to the registration of a trade union was filed within one month of the notice published in Annexure “A”. In other words, this action was filed within one month from the publication of the notice of the registration on 1st December, 2011. Learned counsel for the claimant urged the Court to note that the provision of S. 5(2) of TUA does not specify a particular mode of raising an objection which makes the filing of this suit a valid objection. However, it was submitted on behalf of the claimant that the claimant had all along protested to the 1st defendant on the registration of the applicant. It is crystal clear from all of the above that the claimant does not dispute that by virtue of S. 5(2) of TUA a party seeking to object to the registration of a trade union such as the 4th defendant is required to file an objection with the 1st defendant within three months from the publication of the notice of such registration by the 1st defendant herein. Rather the claimant urged Court to disregard Annexure “A” wherein the notice of the registration of the 4th defendant is published, since according to the claimant, the Annexure is non-existent. I have taken a critical look at the Annexure and there is nothing legally precluding this Court from relying on the Annexure. I am fortified in my position by the clear provision of section 148 of the Evidence Act, 2011 which provides that: “148. The Court shall presume the genuineness of every document purporting to be: (a) the Official Gazette of Nigeria or of a State. (b)........................................” By virtue of the above provision, Annexure “A” is presumed to be a genuine copy of the Official Gazette of the Federal Government of Nigeria. Consequently, the express or perceived objection to the genuineness of Annexure by the claimant in the absence of strong and convincing evidence cannot hold water. It is further necessary to examine the contention of the claimant that it complied with the condition precedent imposed by S. 5(2) of TUA when it filed this action within one month from the 1st of December, 2011 when it argued that the notice of the registration of the 4th defendant/applicant was published in Annexure “A”. Let me pause to ask this question. Did the filing of this action satisfy the condition precedent contemplated by S. 5(2) of TUA? Could it be said that the claimant complied with the provision when it filed this action? The contention of the claimant above compelled me to re-read the provisions of S. 5(2) & (3) of TUA again and again. My conclusion is that the provision is couched in a seamless, clear and unambiguous language. There is no ambiguity in the wording of the section. In the case of CALABAR CENTRAL CO-OPRATIVE THRIFT & CREDIT SOCIETY LTD & 2 ORS V. BASSEY EBONG E. EFFANGA (2008) All FWLR (418) 198 at 222, Paras. A-B, the Supreme Court held that: “Where the words of a statute or Constitution are clear and unambiguous, they call for no interpretation; the duty of the court in such a circumstance is to apply the words as used by the legislature. In the instant case, the applicable law demanded the consent of the Governor before the mortgage in question could be made, the consent was not obtained, therefore, the trial court rightly held that the mortgage was invalid.” Similarly, the Supreme Court in the case of OWNERS OF THE MV “ARABELLA” V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) All FWLR (Pt. 443) 1208 at 1231-1232, Paras. G-H held that: “The cardinal principle of law in the construction or interpretation of a statute is that where the words are clear, the court should give the words used their ordinary meanings without resort to any internal or external aid.” I have said before that S. 5(2) of TUA required the claimant herein to lodge an objection with the 1st defendant within three months of the publication of the notice of the registration of the 4th defendant/applicant in Annexure “A”. This was not done by the claimant who in its wisdom filed this action claiming that same satisfies the requirement under S. 5(2) of TUA. Nothing can be further from the truth. I have no hesitation in holding that this action filed by the claimant did not or does not meet the condition precedent imposed by S. 5(2) of TUA; and I so hold. I have also taken a look at Exhibit “A” attached to the affidavit in support of the claimant’s motion on notice filed on 15/12/2011. The Exhibit is titled “RE: APPLICATION FOR THE REGISTRATION OF SENIOR STAFF UNION OF COLLEGES OF EDUCATION OF NIGERIA [SSUCOEN].” The Exhibit written apparently by the claimant in protest of the intended registration of the 4th defendant was dated 12th October, 2011. By its own admission, Annexure “A”, that is, the Official Gazette in which the notice of the registration of the 4th defendant was published was dated 21st December, 2011. It is therefore evidently clear that the letter of protest dated 12th October, 2011 pre-dated the publication of the registration of the 4th defendant/applicant on 21st December, 2011. For this reason, Exhibit “A” cannot by any stretch of imagination be regarded as a protest lodged in fulfillment of S. 5(2) of TUA against the registration of the 4th defendant/applicant. Having come to the conclusion that the claimant did not comply with the mandatory provision of S. 5(2) of TUA, the next step is to determine the effect of such non-compliance. In the case of NIGERCARE DEVELOPMENT CO. LTD V. ADAMAWA STATE WATER BOARD & 3 ORS (2008) All FWLR (Pt. 422) 1052 at 1071, Paras. B-C; E-F, the Supreme Court held that: “Condition precedent ordered to be done before a litigant is entitled to sue; by reason of the provisions of certain statute is not an ouster clause and not a device adopted by the government to prohibit a judicial review. It is an additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to the courts, is not contrary to section 6(6)(b) of the 1979 Constitution...” The Supreme Court in that case further held that: “Where there is non-compliance with a statute that is shown to be mandatory, the suit and/or proceedings is/are a nullity howsoever well conducted.” Also, in the case of N.N.P.C. V. TIJANI (2007) All FWLR (Pt. 344) 129 at pp. 140-141, Paras. H-B, the Court of Appeal had this to say on the effect of failure to serve pre-action notice before the commencement of an action: “Generally, omission to serve required notice in a deserving case would be fatal to the suit. The court will be right to decline the exercise of jurisdiction as it will be futile to exercise same where there is none. Where the mandatory notice was not given as required by section 12(2) of the NNPC Act, the proper order to make is one striking out the suit. The notice is not only statutory, it is mandatory. It cannot be ignored. Failure to serve same renders the action ineffective and liable to be struck out.” See also the case of A.G. FEDERATION V. GUARDIAN NEWSPAPERS LTD. (1999) 9 NWLR (Pt. 618) 87. What is the effect of non-compliance with the provision? The Supreme Court answered this question in the case of MADUKOLU V. NKEMDILIM supra when it held that a court will have jurisdiction to entertain a suit where the case comes before it initiated by due process of law upon the fulfillment of any condition precedent to the exercise of jurisdiction. The reverse side of this decision is that a court lacks jurisdiction to entertain a matter where the matter is not initiated by due process of law arising from non-fulfillment of a condition precedent as in this case. On the basis of the Supreme Court’s authorities I have just referred to, I have come to the irresistible conclusion that this Court lacks the jurisdiction to entertain the this suit on the ground that the claimant herein failed to file an objection with the 1st defendant within 3 months from 21st December, 2011 when the notice of the registration of the 4th defendant/applicant was published in Annexure “A”. In the circumstance, I hold that S. 5(2) of TUA provides a condition precedent to filing an action against the 4th defendant by the claimant. I also hold that the claimant herein has failed to fulfill the condition precedent as required. In the light of my decision that this action is incompetent since the claimant herein did not file the objection with the 1st defendant as required by S. 5(2) of TUA before filing this action, there is no need for me to determine the other issues formulated and admirably argued by counsel for the 4th defendant/applicant. To do so would be a mere academic exercise. In the final analysis, I am compelled to hold, and I so hold, that this application is meritorious. Arising from this, the prayer of the applicant for an order striking out this suit for non-compliance with section 5(2) of TUA is hereby granted. Consequently, this action is struck out forthwith. See the case of OCHEJA EMMANUEL DANGANA & ANOR V. HON. ATAI AIDOKO ALI USMAN & ORS (2012) LPELR – 7827 SC ratio 7. I make no order as to cost. …………………………………………………………………. Hon. Justice B. A. Adejumo, OFR President, National Industrial Court of Nigeria