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The suit on which the application necessitating this ruling is based was filed on the 8th of February, 2012 via a Complaint dated the 7th February, 2012. This Complaint was accompanied with the claimant’s Statement of Facts, which asked for the following reliefs in its paragraph 14: I. A DECLARATION that by virtue of section 12 [4] of the Trade Unions [Amendment] Act 2005, the Claimant and its members cannot be coarsed [sic], forced or compelled to join or be subsumed by the 1st or 2nd Defendants or any other Union however described. II. A DECLARATION that by virtue of section 12 [4] of the Trade Unions [Amendment] Act 2005 the claimant, having express [sic] its willingness and that of its members to be independent and to exist as a Separate [sic] entity from any other trade Union whatsoever called, is entitled to be so registered as an independent trade union. III. AN ORDER of Court mandating the 3rd and 4th Defendants to accord the Claimant with all necessary recognition as a separate and independent Union in accordance with the provisions of the Trade Unions [Amendment] Act 2005. IV. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Defendants, their privies, agents, assigned or howsoever described from interfering in whatsoever manner and howsoever described from the activities, existence and independent being of the Claimant/Applicant. To this suit the 1st Defendant/Applicant filed on 18th May, 2012 a Notice of Preliminary Objection [NPO] dated same day. The grounds of the NPO are as stated below: a) The Claimants [sic] are stopped from re-litigating the issues before this honourable Court as they are caught by the principle of res judicata, the issue and subject matter being the same and the parties [except for the addition of the 2nd Defendant] also being the same as those in Suit No. FHC/IL/8/2004 before the Federal High Court, Ilorin; Appeal No. CA/IL/30/2004 before the Court of Appeal, Ilorin Division [Judgment delivered on 13th April 2005 [sic] and reported in [2005] 17 NWLR [Part. 953]120]; and Appeal No. SC/201/2005 at the Supreme Court of Nigeria [Judgment delivered on 11th January, 2008 and reported in [2008] 2 NWLR [Part. 1072] 575]. b) The action constitutes a gross abuse of court process and cannot therefore be entertained by this Honourable [sic] This NPO was supported with an 8-paragrph affidavit dated and filed the same day with the NPO. A Written Address in support of the NPO dated the 28th day of June, 2012, was filed on the 3rd of July, 2012 by the Applicant’s counsel. To the above, the Claimant/Respondent filed a Written Address in opposition and it is dated the 16th of July, 2012, on the 17th July, 2012. The Claimant/Respondent equally filed a 10-paragraph Counter Affidavit in opposition on the 17th July, 2012. To the Written Address of the Claimant, the 1st Defendant/Applicant filed a reply on Points of Law dated 6th August, 2012 on the 7th August, 2012. Mean while, the 3rd & 4th Defendants had earlier on filed a Notice of Preliminary Objection dated the 18th of May, 2012 and filed on the 28th June, 2012. This Notice of Objection was subsequently withdrawn on the 13th December, 2012 by Counsel to the Applicants; and accordingly struck out. Equally, all processes relating to the 1st Defendant’s NPO filed late by the parties at both sides were deemed regularly filed and served by this Court on the 9th August, 2012 when the NPO came up for hearing. On that same 9th of August, 2012 parties adopted their respective Written Addresses for and in opposition to the NPO. And I shall proceed to review what is contained in the addresses in question, starting with that of the 1st Defendant/Applicant. In arguing its application, the 1st Defendant/Applicant formulated the following issues: 1) Whether this honourable Court can competently revisit and adjudicate on the registrability of the Claimant’s Association as a trade union by the 3rd and 4th Defendants having regard to the previous decisions of the Court of Appeal and the Supreme Court on the issue.[sic] 2) Whether the addition of the 2nd Defendant which did not participate in Suit No. FHC/IL/CS/2003 and the subsequent Appeals to the Court of Appeal and the Supreme Court thereon, as one of the defendants in this Suit [sic] will affect the result [sic] 3) Whether the amendment of the Trade Unions Act by the addition of sub-section 12[4] thereto by the Trade Unions [Amendment] Act 2005 affects the procedure for the registration of Trade Unions by the Registrar of Trade Unions, or even the right of the Claimant to be registered as a trade union [sic] 4) Whether having regard to the facts deposed to in the Affidavit [sic] in support of the Preliminary Objection, the institution of several Suits [sic] by the Claimant against the defendants on the same subject matter, does not amount to an abuse of the course [sic] process. [sic] Issues Nos. 1 and 2 were argued together by the Applicants. Counsel spelt out the three ingredients of res judicata and cited AJIBOYE V. ISHOLA [2006] 13 NWLR [PT. 998] 628 AT 644 PARAS. B – C and GEGE V. NANDE [2006] 10 NWLR [PT.988] 256 AT 279 PARA. H. It is submitted that the issue that arose in the earlier suit which got to the Supreme Court was whether the Minister of Labour and the Registrar of Trade Unions, who were parties in the earlier suit and the also parties in this suit, were right in refusing to register the Registered Trustees of the National Association of Community Health Practitioners of Nigeria, who was the applicant in the earlier suit and the claimant in the extant suit. It is also submitted that the subject matter in the earlier suit and the extant one is the constitutional right of the claimant to be registered as a trade union. Counsel stated that the 1st, 3rd and 4th Defendants in this suit were also the 1st, 2nd and 3rd Respondents to the Claimant’s earlier suit; but that however, the present 2nd Defendant in the extant suit was not a party in the earlier suit. Counsel then posed the question whether the joinder of the 2nd Defendant now would disturb the operation of the doctrine of res judicata. Counsel opined that it would not because the main relief claimed in the earlier suit, which is the same now, was directed against the 3rd and 4th defendants in the earlier suit as in the present suit. Counsel therefore submitted that the mere joinder of the present 2nd Defendant who during the pendency of the earlier suit and even now did not show interest is at best a nominal party; and a ruse to becloud the Court. It was also the contention of counsel to the applicant that this case is caught by issue estoppel having been previously litigated to the Supreme Court and decision rendered. Counsel cited BAMGBEHIN V. ORIARE [2009] 13 NWLR [PT. 1158] 370 AT 386 – 387 PARAS. F – F and ANWOYI V. SHODEKE [2006] 13 NWLR [PT.996] 34 AT 50, PARAS. A – F. Counsel contended further that the reason for the refusal to register the claimant in the first instance which the Supreme Court confirmed is anchored on section 3 [2] of the Trade Unions Act which gave the Minister of Labour unfettered discretion in matters of registration of trade unions. Having completed arguments on issues Nos. 1 and 2 argued jointly, the counsel to the applicant moved to Issue No. 3. Counsel argued that the Trade Unions [Amendment] Act has no bearing on registration of trade unions and as such cannot have any effect on the present suit. Counsel submitted that the said amendment to the Trade Unions Act had come into operation before both the Court of Appeal and the Supreme Court determined the appeals on the case without the counsel to the claimants raising it as a fresh point of law. Counsel argued that their conduct in this instance is tantamount to acceptance of the fact that the change in law had no effect on their action. Counsel submitted that subsection 21 [4] introduced by the amendment had nothing to do with registration of trade unions but only gives workers the right to choose which union they want to join or to opt out completely. Counsel submitted that the procedure to register trade unions as prescribed by sections 3 and 5 of the TUA is not in conflict with section 40 of the Constitution of the Federal Republic of Nigeria, 1999 [1999 Constitution] and Counsel referred the Court to REGISTERED TRUSTEES OF THE ASSOCIATION OF COMMUNITY HEALTH PRATITIONERS OF NIGERIA V. MEDICAL AND HEALTH WORKERS OF NIGERIA [2008] 2 NWLR [PT. 1072] 575. Counsel equally submitted that the provisions of section 12 [4] newly introduced are not in conflict with those of sections 3 and 5 of TUA. Counsel moved to Issue No. 4. Counsel submitted that the institution of several other suits by the claimant against the same parties as the present one after the judgment of the Supreme Court on the same issue amounted to abuse of court process. Counsel anchored his submission herein on AGWASIM V. OJICHIE [2004] 10 NWLR [PT. 882] 613 AT 622 PARAS. E – G; OGOEJEOFOR V. OGOEJEOFOR [2006] 3 NWLR [PT. 966] 205 AT 220; and SARAKI V. KOTOYE [1992] 9 NWLR [PT.264] 156 AT 188 - 189. Counsel also submitted that both the Court of Appeal and the Supreme Court having adjudicated to finality on the issue raised in this suit between the same parties, this Court has no vires to now reopen the issue determined therein as the Court is bound by the doctrine of stare decisis. Counsel referred the Court to PEOPLES DEMOCRATIC PARTY V. PETER OBI [2009] 3 NWLR [PT. 1128] 327 AT 336 PARAS. C – D, 340 PARA. C; and NWANGWU V. UKACHUWU [2000] 6 NWLR [PT. 662] 674 AT 690, PARAS. B – C. Counsel submitted further that the attitude of the claimant herein negates the principle that there should be an end to litigation. The following authorities were referred to: PEOPLES DEMOCRATIC PARTY V. PETER OBI SUPRA AT 339 – 340 PARAS. E – B; OJO & ORS. V. OLAWORE & ORS. [2008] 6 – 7 SC [PT. 11] 54; ADIGUN V. GOVERNOR OF OGUN STTAE [1995] 3 NWLR [PT. 385] 543 AT 549; and ADEBAYO V. BABLOLA 7 NWLR [408] 383 AT 403. In conclusion, counsel therefore urged the Court to dismiss this action as it was done in DUME [NIG.] PLC V. UBA [2006] 14 NWLR [PT. 1000] 515 AT 528 PARAS. A – B. We shall now move on to the Written Address of the claimant in opposition to that of the applicant just treated above. The counsel to the claimant/respondent [hereinafter referred to as “respondent”] commenced his submissions by saying that this Hon. Court in NIC/ABJ/7/2009 having held that it has examined the Court of Appeal and the Supreme Court cases on which the applicant anchored its preliminary objection on the ground of res judicata and found that the parties were not the same and that as such the objection could not stand; the applicant is stopped from bringing this same objection to the suit of the respondent; which in any case is filed in compliance with the advice of this Court – Counsel referred to Exhibits CHP 1 and CHP 2 attached to the Counter Affidavit of the respondent. Counsel conceded that the respondent’s suit in question was struck out but that it was struck out for being premature in that it had not approached the Registrar of Trade Unions before commencing the action. Counsel therefore contended that the present invitation to the court by the applicant is to enable it sit on appeal on its previous decision, which the law forbids it from doing. Counsel relied on ALLI V. AYINDE [2010] ALL FWLR [PT. 540] 1315 AT 1337 PARA. C. Counsel argued further that the conditions precedent to application of issue estoppels are against the applicant’s preliminary objection; and counsel cited SAKA V. ADEBOYE [2010] ALL FWLR [PT. 549] 1156 AT 1170 – 1171 PARAS. A – F. Counsel argued in justification that the same issues raised by the applicant in the previous preliminary objection and on which this Court had made final pronouncement are being raised again against the same parties. Counsel argued also that the arguments of the applicant on the interpretation of section 12 [4] of the TUA is misconceived in that it delved into the substantive question to be determined by the Court at an interlocutory stage. To anchor this argument counsel referred the Court to NNAMDI AZIKIWE UNIVERSITY, AWKA V. NWEKE [2008] ALL FWLR [PT. 428] 343 AT 350 PARAS. E – F. Counsel submitted that a close perusal of the previous case referred to by the applicant which was pursued to the Supreme Court would show that section 12 [4] of the TUA was not considered by the courts and that what the Court considered was section 3[2] of the TUA. Counsel submitted further on this issue that a further close perusal of Exhibit C attached to the respondent’s Statement of Facts would reveal that the respondent’s application to the 3rd defendant [that is, the Hon. Minister of Labour] was premised on the Trade Unions [Amendment] Act, 2005 and not on the Trade Unions [Amendment] Act, 1996 as claimed by the applicant. Counsel argued that arising from the above, it is clear that the issues raised in the present suit are not the same with the issues raised in the earlier suits referred to by the applicant. Counsel submitted further at paragraph 5.4 of his address that section 12 [4] of the Trade Unions [Amendment] Act, 2005 created a new right which allows workers voluntariness of belonging to a union of their choice and that it is forbidden for anybody to victimize employees for exercising this right. Counsel argued also that the use of the clause ‘Notwithstanding anything to the contrary in this Act…’ which introduced section 12 [4] of the Trade Unions [Amendment] Act, 2005 shows that all the provisions of the Act, including that of section 3[2] are to be read subject to section 12[4]: LADOJA V. INEC [2007] ALL FWLR [PT. 377] 934 AT 995, PARAS. D – G, 996 PARAS. E – F; where the effect of ‘notwithstanding’ in a statute was considered. Counsel proceeded further to contend that the argument of the applicant that the joinder of the 2nd defendant is just to becloud the Court is misconceived in that the various documents showing the fierce battle between the 1st and 2nd defendant for the monthly dues of the respondent would show that the 2nd defendant is not a nominal party as the other side would want the Court to believe. Counsel argued further that the case of AJIBOYE relied upon by the applicant would not avail it as the authority talked of ‘parties or their privies were the same as the parties or their privies to the proceedings in which the estoppels is raised’ as this condition has not been fulfilled in the present action. Counsel then referred this Court to JIMOH V. AKANDE [2009] ALL FWLR [PT.468] 209 AT 232, PARAS. A – D; where the preconditions to applicability of res judicata were restated; and the Court held that each of these preconditions must be proved and that they are not matters to be drawn by inferences. Counsel also submitted that the contention of the applicant that the reason why the 3rd and 4th defendant did not register the respondent had been decided upon is misconceived in that the application of the respondent to the 3rd and 4th defendants was not premised on section 3[2] but rather on section 12[4] of the Trade Unions [Amendment] Act, 2005. Counsel submitted further that the respondent’s contention in the present suit as contained in paragraphs 10, 11 and 12 of their Statement of Facts is that the decision of the 3rd and 4th defendants to refuse to register it is malicious having regard to the fact that the 3rd and 4th defendants are aware of the fierce battle between the 1st and 2nd defendants on who is entitled between them to unionize the respondent and the persistent refusal of the respondent not to be subsumed by either of the two. Counsel submitted that the contention in the present case is that the respondent’s members have the right to opt out of any union without being victimized. Counsel submitted that the reasons for filing FHC/ABJ/CS/465/08 have been articulated in paragraph 8 of the respondent’s Counter-Affidavit. It was therefore submitted that if a suit is struck out for non-compliance with rules of court, subsequent re-filling of the suit cannot amount to abuse of court process; and the case of IWAGOLU V. AZYKA [2007] 5 NWLR [PT. 1028] 613 AT 634, PARAS. D – E was cited in this respect. In conclusion, counsel invited the Court to discountenance the preliminary objection of the applicant. We shall now consider the reply on points of law filed by the applicant in response to the written address of the respondent. But let me say now that I would limit myself strictly to what I consider to be replies on points of law. Counsel to the applicant replied to the respondent by saying it is procedurally wrong for a preliminary objection to be answered by another preliminary objection. To ground this submission, counsel referred this Court to MANSON V. HALLIBURTON ENERGY SERVICES LTD. [2007] 2 NWLR [PT. 1018] 211 AT 227 – 228, PARAS. H – B; and Order 11, Rule 1[4] of the Rules of this Court as amended by the Practice Direction issued on the 1st of July, 2012. Counsel made alternative submission to the effect that this Court can review its decision in Suit No. NIC/ABJ/7/2009 wherein it held that the suit was not caught by the doctrine of res judicata since the decision was arrived at per incuriam. Counsel cited the cases of PERM. SEC., MINISTRY OF WORKS & ANOR V. BALOGUN [1975] N.S.C.C. [VOL. 9] 292 AT 293 LINES 20 – 25; BWACHA V. IKENYA [2011] 3 NWLR [PT. 1235] 610; IKENI V. EFAMO [2001] 16 NWLR [PT. 720] 1 AT 17 – 18, PARAS. H – A; Order 19, Rules 18 and 19 of the Rules of this Court; and NATIONAL UNION OF LOCAL GIVERNMENT EMPLOYEES V. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA [2005] NLLR [PT. 4] 166 AT 181, PARAS. F – G., to buttress his submission. Counsel argued that the claim of the respondent that the struggle between the 1st and 2nd defendants as to who to unionize the respondent is false and the struggle between them as shown in Suit Nos. NIC/19/95 and NIC/9/2000 is really as to who has the power to the exclusion of the other to unionize health workers in all the Local Governments throughout the country. Counsel referred this Court to the case of NATIONAL UNION OF LOCAL GOVERNMENT EMPLOYEES V. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA [2005] NLLR [PT. 4] 166 supra.; where similar dispute was resolved between the parties by this Court. Counsel submitted that the argument of counsel to the respondent that to delve into the interpretation of section 12[4] of the Trade Unions [Amendment Act] now would amount to delving into the substance of the suit is misconceived. This he claimed it is so because the principle only applies to interlocutory matters which do not have the tendency of finally disposing the substantive matters and not to preliminary objections, which if upheld will finally dispose of the matter. Counsel relied on, MARGI V. YUSUF [2009] 17 NWLR [PT. 1169] 162 AT 180, PARA. H; for this line of reasoning. Counsel to the applicant also replied to the contention of the respondent’s counsel that section 12[4] allows people to form another union by opting out of a previous union that the argument is misconceived. He submitted that if this is allowed it would have defeated the essence of sectorial unions brought by the 1978 restructuring of trade unions. Counsel cited UDOH V. OHMB [1990] 4 NWLR [PT. 142] CA 52 AT 67, PARA. H, 68, PARAS. A – B; and that a statute must not be interpreted to produce absurd result relying on UDOH V. OHMB [1993] SC NWLR [PT. 304] AT 147, PARA. E, 148 PARAS. C – D. Counsel submitted that a close examination of the pleadings of the respondent shows clearly that the issue at stake is stricctly whether the 3rd and 4th defendant rightly refused to register the respondent having regard to section 12[4] of the Trade Unions [Amendment] Act, 2005 and that this does not require oral evidence as it is strictly a matter of law. Counsel submitted that the Court can competently proceed to determine it now instead of wasting time on substantive trial that would result in the same thing. I have considered the arguments of counsel for and against the NPO alongside all relevant documents referred to and the facts relevant to the NPO. In my humble opinion, two questions need to be determined in resolving the arguments on the NPO; and these are: 1. How does section 12 [4] of the Trade Unions [Amendment] Act, 2005 affect the PNO; and 2. What is the effect of joinder of the 2nd respondent on the PNO? The applicant has argued that res judicata and issue estoppel negatively affect the action of the claimant. There seems to be a consensus from the authorities cited by the two sides on what res judicata and issue estoppels are. But the point of disagreement would seem to be whether section 12 [4] of the Trade Unions [Amendment] Act pursuant to which the present action is brought constitutes another issue giving the claimant fresh cause of action. It is not in dispute that the previous action, which was prosecuted to the Supreme Court and on which it decided the issues amongst the parties to finality, was brought pursuant to section 3[a] of the Trade Unions Act, 1996; and that the issue of section 12 [4] of the Trade Unions [Amendment] Act, 2005 was never discussed or raised till the case was decided to finality at the Supreme Court. The contention of the claimant is that section 12[4] thereof gave their members fresh cause of action and that based on it, new application for registration had been made to the Registrar of Trade Unions and the Minister of Labour which had been turned down; thus this action. The applicant contended on the other in opposition that because the claimant had not raised the issue of section 12[4] which came into existence before the Court of Appeal and the Supreme Court decided on the previous case, the claimant had accepted that the section is not relevant to their case. Unfortunately, the applicant’s counsel did not cite any authority to show that that is the effect of failure to cite a law which came into force during the pendency of a case. The claim of the claimant here is that fresh application had been made for registration of its members pursuant to section 12 [4] of the Trade Unions [Amendment] Act, which has changed the law relating to registration by giving them the right to opt out and form another union voluntarily. Whether this contention is right or not is a question for trial at the substantive stage. It would seem to me that the applicant’s arguments amount to saying that even if the effect of section 12[4] is that people can now opt out of a union and form another union, the members of the claimant would be precluded from doing this simply because they had applied before and denied that right under the previous law; and because they had the opportunity of canvassing 12[4] before the Supreme Court finally determined their previous case, which they failed to explore. The Supreme Court outlined the conditions precedent to the application of issue estoppels as follows: The elements necessary for determining whether issue estoppel is applicable are: (a) whether the parties in the previous proceedings and the current proceedings are the same; (b) whether the issues are the same; (c) whether the issues are material to the cause of action in the previous and in the later case; and (d) whether the issue has been resolved in the previous case. [see BWACHA V. IKENYA [2011] SC 3 NWLR [PT. 1235] 610 AT 633, PARAS. B -D] The above do not seem to be different with regards to preconditions to application of the plea of res judicata – see MARGI V. YUSUF [2009]CA 17 NWLR [PT. 1169] 162 AT 191 PARAS. G – H. An issue is a point of law or fact put in issue: that is the question which was raised in and the court determined in the matter – see IKENI V. EFAMO [2001] SC 10 NWLR [PT.720] 1 AT 15, PARAS. C- D. The issue or point of law pursuant to which the previous action was filed is without doubt different from the present. That action was filed pursuant to section 3[a] of the Trade Unions Act, 1996 under which the present claimant claimed it was entitled to registration but the current action is brought pursuant to section 12 [4] of the Trade Unions [Amendment] Act, 2005 which claimant now claimed gave its members the right to opt out and form a new union of their choice. To that extent, the issues or the points of law canvassed in the two cases were not the same. Thus the issue of section 3[a] of the Trade Unions Act, 1996 is not directly material to this present cause of action even though the cause of action is the same: i.e. refusal to register the claimant. The question calling for determination is what effect has section 12[4] on the right of the members of the claimant to be registered as a trade union. It follows also that the Court did not determine or adjudicate on section 12 [4] on which the present action is predicated. As to the argument of the applicant that the respondent had the opportunity to raise the issue of section 12 [4] and failed to do so. It is my humble opinion that if the issue had been raised then, the Court would not have been possible to determine it to finality. This is because since the application refused in the previous suit was not brought pursuant to the new section 12[4], it would have simply directed that the applicant should go and apply under the section and that it is after the refusal by the Registrar of Trade Unions and the Minister of Labour that it could come to court – see the decision of this Court in NIC/ABJ/7/2009 – THE REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA V. THE MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & 3 ORS.; where a full panel of this Court held that it would be premature to bring an action on registration of trade unions on the basis of the Trade Unions [Amendment] Act, 2005 without first approaching the Registrar of trade unions and the Minister of Labour pursuant to the new Act; and that it is only after their refusal that a formal action could be competently brought. The claimant in the previous action who did not apply under the new Act could not have complained that is was not registered under it. Based on the above, I hold the view that the preconditions listed in paragraphs [b], [c] & [d] of the authority of BWACHA V. IKENYA supra, have not been met. I now come to the issue of the effect the joinder of the 2nd respondent has in this case. Is the 2nd respondent a necessary party in this action? The claimant in this action has deposed to facts that the 1st and the 2nd respondent have engaged in fierce battle to unionize the claimant and laid claim to their monthly deductions. Though this has been countered by the applicant, but the fact remains that the 2nd or 1st respondent has not denied this. Even if they did; it simply means issues have been joined for substantive trial. It would seem to me that no reasonable court would hold that the 2nd respondent is not a necessary party; so that all issues regarding the right of the claimant to registration as a union could be finally and completely determined in order to avoid multiplicity of suits. I hold the view therefore that the 2nd respondent or any of the 4 respondents is not a nominal party to this action as claimed by the applicant: they are all necessary parties. Arising from the above and in consonance with the decision of this Court in NIC/ABJ/27/2012 supra, it follows that precondition [a] as listed in BWACHA V. IKENYA supra has not also been met. In the final analysis, I hold the view, based on my reasoning above and the authorities cited therein, that a case has not been properly made for the application of the plea of res judicata or that of issue estoppel. Consequently, the PNO of the applicant is hereby dismissed. The matter shall proceed to hearing on the merits. I make no order as to cost. ……………………………………………. Hon. Justice B.A. Adejumo, OFR President, National Industrial Court of Nigeria