Download PDF
This suit was filed on the 13th of August 2013. The claimant came by way of Originating summons, supported by a 38 paragraph affidavit, praying the court for the following reliefs: 1. A Declaration that loading of vehicle on Port-Harcourt Unit, Arugo/control park Owerri Branch of the NATIONAL UNION OF ROAD TRANSPORT WORKERS shall be on the basis of first come first saved (sic). 2. A Declaration that no one other than a commercial driver should be admitted into the NATIONAL UNION OF ROAD TRANSPORT WORKERS in Port-Harcourt Units/Arugo control part Owerri 3. A Declaration that no one including the 2nd Defendant is authorized to run for chairmanship or by any other name it is called to head the Port-Harcourt Unit Arugo/control park Owerri branch Of the NATIONAL UNION OF ROAD TRANSPORT WORKERS for more than two (2) terms consecutively. 4. A Declaration that the office of the chairman and vice Chairman, Secretary, Treasurer, Auditor of the Port-Harcourt Unit Arugo/control Park Owerri branch of the NATIONAL UNION OF ROAD TRANSPORT WORKERS or by whatever name it is called is vacant. 5. A declaration that no one including the claimant should be suspended from the NATIONAL UNION OF ROAD TRANSPORT WORKERS contrary to the provisions of the Unions constitution. 6. A declaration that the new election should be conducted in accordance with constitution of NATIONAL UNION OF ROAD TRANSPORT WORKERS as amended. The Originating summons is asking for the determination of the following issues: 1. Whether on the proper construction of Article 20(2) iii of the constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS as amended, the 2nd Defendant, as agent of 1st Defendant is not supposed to observe the orderly loading of vehicle on the bases of first come first serviced. 2. Whether on the proper construction of Article 5(1) and Article 20 of the constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS as amended any person who is not a commercial driver should be admitted into the NATIONAL UNION OF ROAD TRANSPORT WORKERS. 3. Whether on the proper construction of Article 42(4)vi of the Constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS as amended new election is not supposed to be conducted at Port-Harcourt Unit, Arugo/control park Owerri. 4. Whether on the proper construction of Article 5(vii-x) of the constitution of NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 as amended the Claimant is supposed to be suspended by any one for complaining over what seems to him a violation of the union’s constitution. 5. Whether on the proper construction of Article 42(4) vii 8 vii of NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 the 2nd defendants or any one authorized to run for chairmanship of Port-Harcourt Unit, Arugo/control Park Owerri branch for more than two (2) terms consecutively. The claimant filed an affidavit and a written Address in support of the originating summons on the 13th day of August 2013. By the Claimant’s written address in support of the Originating summons, the Claimant’s case is that he is a member of the 1st defendant and duly registered; and that he plies the Owerri/Port Harcourt route. That the 2nd defendant acting as chairman (though not elected) has been violating the constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 (as amended), and each time the claimant complains, it will lead to threat of life or not loading his vehicle for the day. The claimant has written to different authorities to get redress but all was to no avail, hence this suit. The claimant raised 5 questions for determination: (a) Whether on the proper construction of Article 20(2iii) of the constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 (as amended), the 2nd defendant is not supposed to observe the orderly loading of vehicle on the basis of first come first served basis. On this point, counsel cited the provision of Article 20(2)iii of the said constitution thus: “the unit administration shall undertake the following functions: iii. Ensure the orderly loading of vehicles on the basis of first come first served.” Counsel said doing otherwise is a clear violation of the constitution. (b) Whether on the proper construction of Article 5(1) and Article 20 of the constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 (as amended), any person who is not a commercial driver should be admitted into the NATIONAL UNION OF ROAD TRANSPORT WORKERS. On this point, claimant’s counsel submitted that a member of the union is any person who is engaged in the road transport service or employed by in the public transport companies. He submitted that the NURTW never intended to admit any person who is not a commercial driver, and any person so admitted is not a member of the union. (c) Whether on the proper construction of Article 5(vii-x) of the constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 (as amended), the defendants are supposed to suspend the claimant for agitating that the constitution of the union be observed. On this, the claimant urged the court to stop the defendants from suspending the claimant. (d) Whether on the proper construction of Article 42 (4) vi and vii of constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 (as amended), new election is not supposed to be conducted at Port Harcourt unit, Arugo/control park Owerri NURTW. On this point, counsel submitted that the said articles provided that elections ought to be conducted every 4 years, and no one can hold elective office for two tenures consecutively except the paid officials, and that the 2nd defendant has been in his position for more than 10 years, and is no longer due to be elected into the position. (e) Whether on the proper construction of Article 5 (vii-x) of the constitution of the NATIONAL UNION OF ROAD TRANSPORT WORKERS 2003 (as amended), the claimant is supposed to be suspended by anyone for complaining over what seems a violation of the union’s constitution. Counsel submitted on this point that it is the duty of members of the union to uphold and maintain the constitution. And that the claimant ought not to be suspended for airing his grievances through petitions written to different authorities. In reaction to the originating summons, the 2nd and 3rd defendants filed a 34 paragraph counter affidavit on the 25th day of September 2013, wherein the 2nd defendant deposed to facts stating why the suit should not be commenced by way of originating summons. The defendants also filed a written address canvassing arguments in opposition to the originating summons. Relying on the case of PDP vs. CPC (2011) All FWLR (Pt. 603) 1786, Defence counsel submitted that this case is not within the orbit of the court’s jurisdiction, and urged the court to decline jurisdiction in the matter, claiming that it was a private dispute. He submitted further that the issues raised in the case have raised so many substantial disputes of facts, and it amounts to a hostile action which cannot be sustained in an originating summons. He relied on the case of OMOJOLA vs. OLATERU (2009) All FWLR (Pt. 453) 1328@1333; and UBA vs. EKPO (2005) All FWLR (Pt. 241) 376. It was held in GEB Plc. vs. ODUKWU (2009) All FWLR (Pt. 491) 924 @949 that “the aim of an originating summons is to simplify and speed up procedure since it is envisaged that there is no serious dispute as to the facts in the case because what is in dispute is the construction of an enactment or instrument made under any law upon which the plaintiff is basing his right to a declaration or a claim in his favour, where there is a serious dispute as to the facts then a writ of summons must be issued.” In DAGAZAU vs. BOKIR INT’L CO LTD (2011) 14 NWLR (Pt. 1267) 261 CA, it was held that “The caveat against employing an originating summons to commence a suit applies where there are facts or likely facts to be in dispute that may require the calling of oral evidence to resolve conflicts before the court can determine the question in controversy.” Counsel submitted that the allegation made by the claimant against the defendant cannot be resolved without calling oral evidence to resolve such weighty allegations and reliefs. That the parties having joined issues on certain controversies, the proper procedure is a writ of summons and not originating summons, and he urged the court to so hold. The 1st defendant also opposed the originating summons and filed a 20 Paragraph counter affidavit on the 19th day of December 2013, along with a written address canvassing arguments against the filing of this suit by way of originating summons. The arguments of the 1st defendant counsel were basically the same as that of the 2nd and 3rd defendants in all material content. The Claimant replied on points of law and submitted that he had complied with the constitutional provisions by writing to different authorities before coming to court. He submitted that the court has jurisdiction to entertain the suit. The 1st Defendant went further to file a Notice of Preliminary objection on the same day 19th of December 2013, along with a 6 paragraph affidavit and a written address. The Notice of preliminary objection is for: 1. An order of this court striking out this suit for want of jurisdiction. 2. And for such further order(s) as the Honorable Court may deem fit to make in the circumstance. The Preliminary Objection is premised on the following grounds 1. That the dispute is very contentious and hostile. 2. That oral evidence is required to determine this suit. 3. That Section 254 (C) (1) of the 1999 Constitution as amended and section 7 of the National Industrial Court Act does not empower the court to adjudicate over this matter. 4. That by article 42 (8) of the constitution of the National Union of Road Transport Workers the action is premature and incompetent. 5. That by virtue of the above the court has no jurisdiction to entertain this suit In challenging the jurisdiction of this court, the 1st Defendant’s counsel raised some issues for determination. First, whether this court has jurisdiction to entertain this suit. In arguing this point, the defendant’s counsel referred to the case of S.C.S. Co. vs. Council O.A.U lle Ife (2011) 15 NWLR (pt. 1260) 193 CA, where the court held that an originating summons should only be used where the proceedings involves questions of law rather than disputed facts, where there is likelihood of dispute of facts, it cannot be commenced by originating summons. Thus where there is dispute of fact or even likelihood of such dispute, an action cannot be commenced by originating summons. The defendant argued that a perusal of the affidavit in support of the originating summons shows that there is a dispute of fact or likelihood of same. That the court in S.C.S. Co. v. Council OAU Ile Ife (supra) stated: "Where the affidavit of the Plaintiff leaves matters for conjecture, and where it is obvious from the state of the affidavit that there would be an air of friction in the proceeding, an originating summons is not appropriate." The 1st defendants’ counsel further submitted that the applicant, having initiated this suit by originating summons, the originating process therefore becomes incompetent and as such robs the court of its jurisdiction to entertain the suit. He referred the court to the cases of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341, SCS Co. vs. Council OAU Ile Ife (supra). Counsel further submitted that in the case of Ogoh v Enpee Ind Ltd. (2004) 17 NWLR (PT.903) 449, the court held that a suit not commenced by the procedure provided by law cannot be proceeded upon by the court. They urged the court to so hold and that the court also stated in the case of Dagazau vs. Bokir int'l co. Ltd (2011) 14 NWLR (pt. 1267) 126 CA that "The caveat against employing an originating summons to commence a suit applies where there are facts or likely facts to be in dispute that may require the calling of oral evidence to resolve conflicts before the court can determine the question in controversy…” He submitted that the allegation made by the claimant against the defendants cannot be resolved without calling oral evidence to resolve such weighty allegations and reliefs, that going by the affidavit evidence before the court in this matter, which counsel claims are very hostile and involves substantial dispute of facts between the parties, that the Claimants resort to the use of Originating Summons to settle such burning questions to finality is wrong. He referred the court to the cases of Omojola vs. Oyateru (2009) All FWLR (pt. 453) 1328, 1333, UBA vs. Ekpo (2005) AII FWLR (pt. 24L) 376; and GEB vs. Odukwu (2009) ALL FWLR (Pt. 491) 924, where the court stated thus; "That the aim of an originating summons is to simplify and speed up procedure since it is envisaged that there is no serious dispute as to facts in the case because what is in dispute is the construction of an enactment or instrument made under any law upon which the plaintiff is basing his right to a declaration or claim in his favor, where there is a serious dispute as to facts then a writ of summons must be issued…” It is Counsel’s further submission that by virtue of Section 254 (C)(1) of the 1999 Constitution (as amended), the NICN lacks jurisdiction to entertain this suit, that by the section the court only has jurisdiction only to determine disputes between an employer and employee or Trade Union dispute, industrial actions etc. That the central plank of the plaintiff's case who claims to be a member of the 1st defendant in this matter is a dispute he had with another member of the 1st Defendant i.e. the 2nd defendant, on the way he should load his vehicle at the Park. It is a private dispute between the claimant and the 2nd defendant which at most gives the claimant right of action in tort using the appropriate originating process, that such a private dispute cannot confer jurisdiction on this court being a court set up to entertain disputes arising from trade union disputes and labour disputes etc. That the provisions of Section 254C (1) of the 1999 Constitution (as amended), is very clear and unambiguous and must be given their ordinary and simple meaning and also Section 7 of the National Industrial Court Act provides that the NICN completely lacks jurisdiction to determine this suit. Section 7 provides thus; “The court shall have and exercise exclusive jurisdiction in civil cause and matters; A. Relating to - i. Labour, including Trade Union and Industrial Relations and ii. Environment and conditions of work, health, safety and welfare of labour, matters incidental thereto. Section 7 (b) provides for grant of an order to restrain any person from embarking on strike or any industrial action while Section 7 (c) provides for jurisdiction pertaining to any collective agreement or any award made by a tribunal, terms of settlement of any labour dispute and any trade union constitution. Counsel again submitted that the central plank of the applicants claim does not fall within the jurisdiction of this court in that his claim arises from the dispute he has with the 2nd Defendant who he claims stopped his bus from loading on the first come first serve basis until he pays 120,000 Naira. The defendants’ counsel referred the court to the case of PDP vs. CPC (2011) All FWLR (pt. 603) L786 SC, where the court held that; "Where the words of a constitution is clear the court must follow them in their simple, grammatical and ordinary meaning." Counsel Further submitted that by the provisions of Article 42 (B) (i) (ii) of the Constitution of National Union Road Transport Workers, this dispute is premature and incompetent. The said section provides thus: “Any member or group of members or local branch or state council that feels dissatisfied with any form of the disciplinary measures taken against them either individually or collectively shall have the right to appeal to the next higher organ of the union provided that he or they shall first of all comply with the punishment until the appeal is determined by the appropriate body. Right of appeal for redress should not be limited only to immediate organ. It shall continue until it is finally decided by the National Delegate Conference which is the highest decision/supreme organ of the Union. It is only when he is not satisfied by the decision of the NDC that he can report the case to the Ministry of Labour or take legal action at his own expense." That by paragraph 7of the Applicant's Affidavit the claimant admitted being a full member of the 1st Defendant and is therefore bound by the constitution of the 1st Defendant. That the Affidavit of the Applicant shows that the National Delegate Conference which is the highest decision making body has not looked into his complaints or disciplinary measure taken against him by the 2nd defendant before the applicant rushed to court and filed this suit. That the law is trite that where a statute prescribes a legal line of action for the determination of an issue, an aggrieved party must exhaust all the remedies before instituting an action in court. The 1st defendant’s counsel concluded by referring the court to the cases of Aribisala vs. Ogunyemi (2001) FWLR (pt 31) @ 2807, Okoro & Anor vs Governor Imo State &. Ors (2001) FWLR (pt.77) 932@ 941-944 and urged the court to hold that it no jurisdiction to entertain this matter. The claimant/respondent filed a reply to the preliminary objection on the10th day of January 2014. The claimants counsel argued that this court has jurisdiction to entertain this suit on the grounds that the claimant is a full member of the National Union of Road Transport Workers, that the defendants who are denying that the claimant is not a member of the union did not in any way attach their own identification card in this suit to show or prove its difference with the claimant identification card. That it is trite law that evidence which ought to be provided and not provided or produced would be presumed to be unfavorable to the party withholding it. Referring to the counter-affidavit of the 2nd and 3rd defendants, counsel argued that it was stated that the 1st defendant is a registered trade union under the Laws of the Federal Republic of Nigeria. Section 254C sub-section (j), (vi) of the 1999 constitution as amended which provides that (i) Relating to the interpretation and application of any (vi) Trade union constitution, the constitution of an association of employer or any association relating to employment, labour, industrial relations or work place. That the claimant never had any dispute against the 2nd defendant or has any claim against the defendants. What the claimant is asking this court for is the interpretation of the union constitution and nothing more. That oral evidence is not needed for the determination of the relief sought because the claimant does not have any damages against the defendant and that the court can resolve the dispute without calling oral evidence. Claimant’s Counsel referred the court to Section 12 sub-section 2(c) (i), (v) National Industrial Court Act, 2006 which provides that; (c) Relating to the determination of any question as to the interpretation of: (i) Any collective agreement; (iv) Any trade union constitution. That the 2nd and 3rd defendants admitted in paragraph 3 of Counter Affidavit that the 1st defendant is a registered trade union under the laws of the Federal Republic of Nigeria, and that it is trite law that any facts admitted need not be proved. See Section 123 of Evidence Act 2011 as amended. The claimant also submitted, relying on section 12 Sub Section 2(C) I (iv) of the National Industrial Court Act, 2005 supra that this honorable court has jurisdiction to entertain this suit on the ground that the claimant is only asking for interpretation of the said union constitution which does not need oral evidence. Counsel referred the court to the case of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 which has lucidly stated those essential qualities that must exist in a court or case for a court to have Jurisdiction to hear a matter, they are as follows: (1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another, (2) The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising jurisdiction (3) The case comes before court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Claimants counsel submitted that the claimant has fulfilled the condition required by the constitution of the National Union of Road Transport Workers by writing to different organs of the union before commencing this action. That an action may be commenced by originating summons where the sole or principal question in issue is, or is likely to be, one of constitution of a written law or, any instrument made under any written law, or of any deed, will, contract or document or some other question of law, there is unlikely to be any substantial dispute of fact. It is Counsel’s further submission that, it is trite law that where there is a question in issue or likely to be one of constitution of a written law, originating summons will be used in the determination of such questions and written law which confers this court with jurisdiction to hear this matter. See Exhibits D and E and Paragraphs 21 of Counter-affidavit of the 2nd and 3rd defendants where the 2nd defendant deposed that when the claimant complained to the state chairman of the union, he looked into the matter and ignored him, meaning that the state chairman was biased, and it is applicable to other branches of the union who also ignored claimant because they are working hand in hand. That the defendants want to frustrate the claimant on ground that when the claimant wrote to different organs of the union to lodge complaint, none of the organs replied him or invited him to resolve the issues before them. Article 8(1) of the Constitution of the National Union of Road Transport Workers provides that the National Delegates Conference shall be composed of the following: 1. All members of the National Administrative Council. 2. Zonal Chairman and Secretaries 3. State Chairman, Secretaries and Treasurers 4. Two Members from each of the State including Abuja Federal Capital Territory 5. All past presidents of the union are special National Executive Council members having right to contribute/participate on advisory capacity but have no voting right. He submitted that all organs that comprise the National Delegate Conference were aware of the claimant’s complains. See Exhibit D and E; and that the claimant wrote to the National Delegate Conference through the National President of the Union. Counsel referred the court to Article 42(B) which provides that: “Any member or group of members or local branch or state council who feels dissatisfied with any form of disciplinary measure taken against them either individually or collectively shall have the right of appeal to the next higher organ of the union provided that he or they shall first of all comply with the said punishment until the appeal is determined by the appropriate body. Right of appeal for redress should not be limited only to immediate organ. It shall continue until it is finally decided by the National Delegate Conference which is the highest decision/supreme organ of the union. It is only when he is not satisfied by the decision of the National Delegate Conference that he can report the case to the ministry of labour or take legal action at his own expense.” In conclusion counsel submitted that article 42(8) (i) is very simple and clear in interpreting the case of PDP v CPC (2011) All FWLR (Pt. 603) 1786 SC where the court held that where the word of a constitution is clear the court might follow them in their simple grammatical and ordinary meaning. That the claimant was not satisfied with the attitude of the different organs of their union because they ignored him, denied him and they did not reply to any of his letters, he decided to take legal action at his own expense according to Article 42(8) (i) supra. Finally counsel submitted that this matter is not very contentious and hostile, so oral evidence is not required to determine this suit on ground that the claimant is not asking for any claim for damages against the defendants. What the claimant is asking court is interpretation of the union constitution and court will do that without calling oral evidence to resolve it. This action is mature and competent and this honorable court has jurisdiction to entertain this suit which is in respect of the interpretation of the union constitution. Counsel urged the honorable court to so hold. For the purpose of this ruling, all the arguments relating to both the originating summons and the preliminary objection are considered holistically. I have formulated two issues for determination: 1. Whether the facts of the case brings it within the ambit of cases triable under the Originating Summons procedure. 2. Whether from the claims, this court has jurisdiction to try the case. I have chosen to first deal with the second issue as regards whether or not the court has jurisdiction to entertain the suit. A perusal of the reliefs sought reveal that they are indicative of matters falling within Section 254 (C) (j) (vi) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which confers jurisdiction on the National Industrial Court to hear and determine “matters relating to the determination of any question as to the interpretation and application of any trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or workplace.” The case of Madukolu vs Nkemdilim (1962) 2 SCNLR 341 has stated those essential qualities that must exist in a court or case for a court to have Jurisdiction to hear a matter: (1) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another, (2) The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising jurisdiction (3) The case comes before court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. I am of the view that the subject matter of the case falls within the jurisdiction of this court. Anything to the contrary is determinable only if the court is seised of more facts obtainable from pleadings of the parties. This court will therefore assume jurisdiction to hear the matter. Now to the first issue as regards whether the facts of the case brings it within the ambit of cases triable under the Originating Summons procedure, Onnoghen JSC has held in the case of Dapianlong & 5 Ors. v. Dariye & Anor. (2007) 4 S.C. (Pt. III) 118 at 167-168, Lines 30-20 (SC) that: "The Originating Summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute.” Alagoa JCA has held in the case of DOCTOR AKINOLA E. OMOJOLA vs. DADA OYATE (2007) LPELR-8359(CA) that: “Allegations of criminality or illegality certainly do not fall under actions within the contemplation or purview of the originating summons procedure." In P.D.P. vs. Abubakar (2007) Vol. 41 WRN 61 at 94, lines. 20 - 30 (CA) the Court of Appeal held that “Originating summons procedure is appropriate where there is no substantial dispute of facts between the parties, or likelihood of such dispute. The respondents in his claim asked the court to determine whether there was a breach of fair hearing by the appellants and further prayed the court to make declaratory reliefs - based on conflicting affidavit evidence before the court, these cannot be resolved without settlement of pleadings - recourse to the use of originating summons is obviously inappropriate in the circumstance. Olumide v. Ajayi (1997) 9 NWLR (Pt. 517) page 433, Unilag v. Aigoro (1991) 3 NWLR (Pt. 179) page 376, Adeyemo v. Beyioku (1999) 13 NWLR (Pt. 635) page 472." Per Adekeye, JCA. Indeed, the case of ADEBAYO & ORS. v. PDP & ORS. (2012) LPELR-8430(CA) is instructive as regards the circumstances where originating summons should be applicable: "Originating Summons should only be applicable in such circumstances as where there is no dispute on questions of facts (even) the likelihood of such dispute. Originating Summons is reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the case would demand the settling of pleadings." “It would therefore appear that where a claim is purely for interpretation of statutes, deeds, documents like the Constitution of the PDP; guidelines for primary election of the PDP and other documents as tendered by the parties; which do not entail hostile disputes as to facts, then the Originating Summons procedure is ideal." Per AGUBE J.C.A (P 71, Paras C-G). From the bundle of affidavit evidence before the court, it is clear that the reliefs sought by the claimants have raised disputes or indeed, real issues of fact that are determinable only when the totality of the case is placed before the court by way of pleadings of the parties. Where the disputed facts are substantial as in the present case, the proper mode of commencing such action is by writ of summons so that pleadings can be filed and exchanged to determine the issues in controversy between the parties. See P.D.P. v. Abubakar (2007) Vol. 41 WRN 61 at 88, lines. 20 - 25 (CA) The brief facts of the case as gathered from the affidavit evidence before the court bothers on various wrongdoings and non-observance of provisions of the Union’s Constitution relating to the orderly loading of vehicles and the suspension of the claimant from loading his buses, which led to his reporting the matter to various authorities, yet the matter remained unresolved. A look at these simple facts, and other averments in the claimant’s affidavit, reveals apparent hostilities between the parties which a mere interpretation of certain sections of the union constitution without more can resolve. It is easily discernable from the various affidavits and counter-affidavits that while the affidavit in support of the originating summons is full of assertion of facts as deposed to by the claimant, the counter affidavits are replete with denials of those state of affairs asserted by the claimant. I am of the view that the contentious issues thrown up by the various affidavits are not immaterial or inconsequential. They are relevant to a just determination of the issues in this case. I am constrained to disagree with submission of the Claimant’s Counsel that “this matter is not very contentious and hostile, so oral evidence is not required to determine this suit on ground that the claimant is not asking for any claim for damages against the defendants. What the claimant is asking court is interpretation of the union constitution and court will do that without calling oral evidence to resolve it.” I do not see how these areas of factual disputations or disagreements can be adequately resolved so as to unearth the truth in the absence of a procedure that allows for pleadings to be filed and exchanged and for witnesses to adduce oral evidence and be cross-examined. It follows that once it is clear or envisaged that there would be substantial or contentious issues of facts as in the case at hand, it would be improper to commence the action by means of originating summons. See Dagazau vs. Bokir int'l co. Ltd (2011) 14 NWLR (pt. 1267) 126 CA. On the contrary, such proceedings should be initiated by way of ordinary writ of summons. It is my holding therefore that this action was wrongly commenced by means of originating summons. The proper procedure for an action of this nature in this court ought to be by way of Complaint and not by Originating summons. In the case of OSUNBADE vs. OYEWUMI (2007) 18 FWLR (Pt. 368) 1004 @1015, the Supreme Court has given a useful guidance on the proper order to make in this circumstance when it stated thus: “the proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons, is to order pleadings and not to dismiss such action or pronounce on the merit of the case.” On the strength of the Supreme Court decision in OSUNBADE vs. OYEWUMI (Supra), and by virtue of the National Industrial Court Rules 2007, I hereby order the parties herein to file and serve their pleadings. The claimant shall file and serve his statement of facts and other relevant processes within two weeks from today in accordance with the relevant provisions of Order 3 of the Rules of this Court. The defendants shall file and serve their Statement of Defence within two weeks of receiving the Statement of Facts from the Claimant. The case will then proceed to hearing. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge