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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: NOVEMBER 18, 2014 SUIT NO. NICN/LA/14/2014 BETWEEN National Theatre and the National Troupe of Nigeria Board - Claimant AND Mr. Akogun Kokumo Ekundayo - Defendant REPRESENTATION Mohammed Adamu, and with him is Shamsideen Olaleye, for the claimant. Mrs. Bolanle Komolafe, and with her is Promise Asikpo, for the defendant. RULING The claimant by a complaint dated and filed on 20th January 2014 is claiming against the defendant for the following reliefs – 1. A declaration that the defendant is a projection of management staff being the Chief Technical Officer Grade Level 14 sitting on an extended management meeting within the claimant’s management structure. 2. An order of the Honourable Court declaring the defendant’s office vacant and illegal. 3. An (sic) such order or further orders as the Honourable Court may deem fit to make in the circumstance. Accompanying the complaint are a verifying affidavit, statement of fact, list of witness for the claimant, claimant’s witness statement on oath, list of documents to be relied upon by the claimant and copies of the documents. The defendant entered formal appearance by filing its memorandum of appearance. The defendant also filed his statement of defence which included a counterclaim, defendant’s list of witness, defendant witness written statement on oath, list of documents and copies of the documents In reaction, the claimant filed a reply to statement of defence, defence to defendant’s counterclaim and counterclaim to defendant’s counterclaim, witness statement on oath of counterclaimant to defendant’s counterclaim, counterclaimant’s list of documents to be relied on, counterclaimant’s list of witness and copies of documents. The defendant on his part then filed a notice of preliminary objection challenging the suit for incompetence and lack of jurisdiction by the Court. The grounds for the preliminary objection are – 1. The claimant’s suit as constituted did not disclose any reasonable cause of action for commencing this suit. 2. The suit is an abuse of court process being frivolous and having been instituted in bad faith. In support of the preliminary objection is a written address. The claimant reacted by filing its written address titled “Reply on Points of Law to the Defendant/Applicant’s Notice of Preliminary Objection Dated and Filed on 20th May 2014”. The defendant did not file any reply on points of law to the claimant’s reaction written address. The defendant framed one issue for the determination of the Court, namely: whether this suit ought to be struck out for want of jurisdiction. In arguing this issue, the defendant reiterated the grounds of his preliminary objection and then, for the meaning of cause of action, referred the Court to Abubakar v. BO & AP Ltd [2007] 18 NWLR (Pt. 1066) 319 at 361. That in determining whether a reasonable cause of action has been disclosed by the claimant, what the Court must look are the complaint and statement of fact, citing Abubakar v. BO & AP Ltd. To the claimant, the main grouse of the claimant against defendant is his union activities. That there is, however, no law which vests in an employer a right to have his employee removed from the leadership of a union whenever the employer is aggrieved at the union activities of the employee on the ground that he has been long in service and is a senior staff. That for this sole reason, this action must fail, referring to Chevron (Nig) Ltd v. LD (Nig) Ltd [2007] 16 NWLR (Pt. 1059) 168 where it was held that the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. It is the submission of the defendant that the claimant in this suit as an employer has no legal interest on who is to lead a trade union duly registered under the Trade Unions Act. Hence, the claimant has no right of action and is not entitled to the judicial remedy sought as it has suffered no wrongful or illegal act at the hands of the defendant and its reliefs are unknown to our labour laws, citing AG, Federation v. Abubakar [2007] 10 NWLR (Pt. 1041) 1 at 79. The defendant then submitted that this suit is liable to be struck out in line with Chevron (Nig) Ltd v. LD (Nig) Ltd, which held that a reasonable cause of action is a cause of action with some chance of success, when only the allegations in the statement of claim are considered; and if when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim ought to be struck out. The defendant went on that from the pleadings and documents of the claimant, this suit constitutes an abuse of court process and is liable to be struck out, citing Abubakar v. BO & AP Ltd, which held that it is an abuse of court process where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness; for the abuse lies in the inconveniences and inequities involved in the aims and purposes of the action. The defendant then invited the Court to take a second look at the originating processes to find that nowhere in them did the claimant disclose a reasonable cause of action. That the claimant has no competent suit to be determined before this Court. That the case is an abuse of court process and does not qualify for the invocation of the jurisdictional powers of this Court, urging the Court to accordingly strike out the case. In its reply written address, the claimant referred to the Black’s Law Dictionary’s definition of a cause of action as “A group of operative facts given rise to one or more bases for suing; also it is a factual situation that entitles one person to obtain a remedy in court from another person”. To the claimant, going by its complaint and statement of facts, it can safely be said that the claimant has a reasonable cause of action against the defendant. The claimant went on to frame one issue for the determination of the Court, namely: whether the claimant’s/respondent’s case has a reasonable cause of action against the defendant and amount to an abuse of the process of court. The claimant submitted that the suit has a reasonable cause of action against the defendant and no feature whatsoever that links same with an abuse of court process. That every organization has certain operative rules for management guidance and administration. To the claimant, “while in the instant case, the defendant being a Senior Management Staff who sits on an Extended Management meeting and the claimant’s Board decision to peak management level to start from Level 13 is on order as it offends no rational conclusion”. That the defendant’s reliance on the cases of Abubakar v. BO & AP Ltd [2007], Chevron (Nig) Ltd v. LD (Nig) Ltd [2007] and AG Federation v. Abubakar [2007] are all misapplied with respect to the present case. The claimant continued that the weakness of the claimant’s case is not a relevant consideration when the question is whether or not statement of claim had disclosed a reasonable cause of action, citing Mobil Producing Nig. Unlimited v. LASEPA [2003] All FWLR (Pt. 137) 1056. The claimant then urged the Court to hold as such and dismiss the preliminary objection as there is counterclaim action in the substantive suit. Regarding the submission of the defendant that there is no law restricting unionism, the claimant replied that the legal provision is aiming at checkmating conflicts of interest among individual with the organization, hence certain organization has some staff as projection of management who cannot hold union post but can belong to a union group. The claimant continued and submitted that this Court’s decision in Mbanefo v. Judicial Service Commission, Anambra State [2011] 26 NLLR (Pt. 73) 122 at 155 has not been set aside hence it remains a guiding principle and form the basis for the claimant’s prayers, in its suit and counterclaim action. In conclusion, the claimant submitted that it is unknown to law that employees who are involved in trade union activities should not be disciplined if found wanting and the whole aim of adjudication is to discover the truth as far as that is possible within human limitation, and to find the true bearing of the law on the facts as pleaded and as made issues from those pleadings. The claimant then urged the Court to dismiss the preliminary objection and set the matter for hearing on its merit. The defendant did not file any reply on points of law. I heard learned counsel and considered all the processes filed in this case. In considering the merit of the matter at hand, I must remark on some aspects of the submissions of the claimant’s counsel. First, in paragraph 3.2 of its written address, the claimant had argued thus: “while in the instant case, the defendant being a Senior Management Staff who sits on an Extended Management meeting and the claimant’s Board decision to peak management level to start from Level 13 is on order as it offends no rational conclusion”. I really cannot make any sense out of this submission of the claimant. A similar incomprehensible submission is to be found in paragraph 4.1 of the claimant’s written address. In that paragraph, the claimant submitted that “the legal provision is aiming at checkmating conflicts of interest among individual with the organization, hence certain organization has some staff as projection of management who cannot hold union post but can belong to a union group”. Not only is this submission incomprehensible, the legal provision it seems to be referring to is not disclosed to the Court. Secondly, this thing about reacting to cases cited by an opposing counsel and instead of making concrete submissions why a case(s) is inapplicable to an instant case, counsel merely states that such and such a case is inapplicable is a lazy and indeed bad form of advocacy. In paragraph 3.3 of its written address, the claimant simply stated that the defendant’s “reliance on the cases of Abubakar v. BO & AP Ltd [2007], Chevron (Nig) Ltd v. LD (Nig) Ltd [2007] and AG Federation v. Abubakar [2007] are all misapplied with respect to the present case”. How this misapplication is has not been told to the Court by the counsel to the claimant. This line of reasoning was repeated in paragraph 4.0 when the claimant simply stated that “in reaction to paragraphs 3.2, 3.3, 3.4. 3.5, 3.6, 3.7 and 4.1 of the applicants written address in support of the notice of preliminary objection, we humbly submit that the applicant’s submission is faulty”. How and what makes the submission faulty were not told to the Court. This lazy form of advocacy cannot help counsel. Thirdly, in arguing in its conclusion that “it is unknown to law that employees who are involved in trade union activities should not be disciplined if found wanting”, the claimant went beyond the pale and dovetailed to arguing the merit of the substantive suit. All of this aside, the issue before the Court is whether there is a reasonable cause of action before the Court. But first, what is a cause of action? In Comrade Ishola Adeshina Surajudeen v. Mr. Anthony Nted & anor unreported Suit No. NICN/LA/114/2013 the ruling of which was delivered on July 10, 2014 this Court (relying on ‘lai Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defined cause of action as – …the cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See also AG, Federation v. AG, Abia State & ors [2001] 11 NWLR (Pt. 725) 689 at 733 which is quite emphatic that the weakness of the claimant’s case or its unlikelihood to succeed are not factors to be considered in determining whether or not the claimant’s case discloses a reasonable cause of action. I looked through the complaint and the statement of facts. The case of the claimant is that the defendant, who is its employee in the rank of Chief Technical Officer on Grade Level (GL) 14, is equally the branch (National Theatre branch)) Chairman of the Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE). That as Chief Technical Officer on GL 14, the defendant is a management staff and so is a “projection of management”, in which position, the defendant cannot also be the branch Chairman of AUPCTRE given the conflict of interest visible and inherent in the discharge of the duties of both offices, hence this suit and essentially relief 1. See generally paragraphs 6, 9, 10 and 12 – 20 of the statement of facts. Do all of these disclose a cause of action and a reasonable cause of action at that? Except for relief 2, which seeks for an order of the Court declaring the defendant’s office vacant and illegal without indicating which exact defendant’s office, I will answer the question in the affirmative. But even at that, it will serve no useful purpose simply striking out relief 2 at this stage of the proceeding given that no issue in that regard was raised by the defendant. Even when the defendant argued that there is no law which vests in an employer a right to have his employee removed from the leadership of a union whenever the employer is aggrieved at the union activities of the employee (as can be seen in paragraphs 11 and 12 of the statement of facts) on the ground that he has been long in service and is a senior staff, and that for this sole reason, this action must fail, referring to Chevron (Nig) Ltd v. LD (Nig) Ltd [2007] 16 NWLR (Pt. 1059) 168 where it was held that the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant, the defendant did not avert its mind to the fact that, as indicated by the claimant, this Court had previously assumed jurisdiction over a similar scenario and case where an employer similarly complained. This was the case in Basil Ositadinma Mbanefo & ors v. Judicial Service Commission, Anambra State [2011] 26 NLLR (Pt. 73) 122 NIC. I must acknowledge that while in Basil Ositadinma Mbanefo it was the judiciary staff themselves that sued as claimants and urged the Court to hold inter alia that they were not “a projection of management within a management structure” within the definition of that phrase by section 3(4) of the Trade Unions Act Cap. 437 LFN 1990, the issue is no different from the instant case where it is the employer who came to Court. Accepted also that this Court in Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt. 82) 90 NIC as well as NASU v. Vice-Chancellor, University of Agriculture [2012] 29 N.L.L.R (Pt. 83) 221 NIC held that no employer is permitted to interfere, no matter how minutely it may be, in the internal running and management of a trade union, that being the exclusive preserve of members of the trade union itself. In consequence, and in Nestoil Plc v. NUPENG, this Court held that – …the claimant has no locus standi, and so is a busy body, regarding the question whether the defendant is the appropriate union to unionize its staff. The locus is with either the staff themselves or some other rival union that lays claim to jurisdictional mandate. The interest of the claimant regarding this question is passive and does not entitle it to come to court. Only two categories of persons have the locus to challenge the defendant in this regard. They are: a rival union challenging the jurisdictional mandate of the defendant over the staff of the claimant or the staff of the claimant indicating individually and in writing that they are opting out and so check-off dues should no longer be deducted. The instant case does not qualify and so is not such an interference of the Nestoil Plc v. NUPENG mould. The employer (the claimant in the instant case) in pleading the conflict of interest in the discharge of the responsibilities of the defendant in his role as a “projection of management” and branch Chairman of AUPCTRE has shown sufficient interest to warrant coming to Court. It is, therefore, my finding and holding that the case of the claimant discloses a reasonable cause of action. The defendant’s motion on notice accordingly lacks merit and so is hereby dismissed. The matter shall accordingly proceed to trial. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip