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NIN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: July 10, 2014 SUIT NO. NIC/OW/15/2014 Between 1. Imo Transport Company Limited 2. Global Ginikana Services Limited Claimants And 1. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) 2. Emeka Okoro (Chairman ITC Unit of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees) (AUPCTRE) 3. Eugene Ogoke 4. Collins Nwosu Defendants 5. Ethelbert Nwoke 6. Collins Aguocha 7. Lawrence Onyekachi 8. Basil Echeozo 9. Leonard Anyanwu 10. Opara Peter N. (For themselves and as representing members of AUPCTRE) Representation: L. M. Alozie; with him, Azubuike Nwankenta, O. U. Ikwu, Obiora Eze, Faith Akpotaire and C. K. Nnabugu, for the Claimants Uche Wisdom Dureke; with him, Nnadozie Ohanyere and Chika Okechukwu (Miss), for the Defendants RULING This suit was commenced by way of Originating Summons on the 24th day of February 2014, seeking the determination of the following questions of law: 1. Whether having regard to the Trade Dispute Act Laws of the Federation of Nigeria Cap T8 the defendants can embark on acts of hooliganism lawlessness by way of blocking gates to the claimant’s business premises and molesting members of staff of the claimant who are willing to work in a purported bid to redress their grievances. 2. Whether the defendants are entitled under the trade dispute Act to lock out and prevent willing workers and even passengers of the claimants from entering the claimant’s offices and operational premises without due process and at a time when the claimants suit over some alleged grievances in suit No. NIC/EN/209/2012 pending before the National Industrial Court. 3. Whether the conduct of the defendants does not amount to an infringement of the claimant’s fundamental rights and their workers to freedom of movement, dignity of human person, personal liberty and right to freedom of Association as enshrined in sections 34, 35, 38 and 40 of the 1999 constitution of the federal Republic of Nigeria as amended. 4. Whether the defendants are entitled to compel every worker in the employment of the plaintiffs to pay them N2,000.00 per month upon receipt of their monthly salary whether or not such persons belong to their union or share their views even when the defendants collect check off dues from their salary. Upon the determination of the above questions, the Claimants seek the following reliefs: 1. A declaration that the defendants are not entitled to resort to any act of hooliganism and lawlessness/thugry (sic) in their purported bid to enforce any perceived grievances against the claimants. 2. A declaration that the claimants, their officials and workers are entitled to free access, entry, egress and ingress into the premises of the claimant to carry out their lawful business/duty without any molestation including locking them in or out of their business premises. 3. A declaration that the defendants have no right to impose and enforce any compulsory levy either in the sum of N2,000.00 or any other sum on members of staff or employees of the claimants from whose salaries check off dues are deducted at source for the benefit of the defendants union. 4. A declaration that having regard to the provisions of sections 39 and 40 of the 1999 constitution of the Federal Republic of Nigeria as amended the defendants have no right to compel any worker to belong to their union or to participate in their activities. 5. A declaration that the conduct of the defendant as highlighted above constitutes an infringement of the claimants and their loyal staff to their rights to dignity of human person, freedom of association, freedom of movement, personal liberty as enshrined under sections 34, 35, 38 and 40 of the 1999 constitution of the Federal Republic of Nigeria as amended. 6. A declaration that the defendants having absented from work are not entitled to be paid. 7. A declaration that the management of the claimants have the right to discipline any staffs who does not come to work including the defendants. 8. An injunction restraining the defendants from blocking the gate of the plaintiffs business premises or in any manner harassing, molesting, intimidating the officials and staff including the passengers of the plaintiffs and also from preventing them from entering or leaving their offices and motor parks. In support of the Originating summons, Counsel to the Claimants filed a 25 paragraph affidavit and a written address wherein he formulated the following 4 issues for determination. 1. Whether having regard to the trade dispute Act laws of the Federal of Nigeria Cap T8 the defendants can embark on acts of hooliganism and lawlessness by way of blocking the entrance gates to the claimant’s business premises and molesting members of staff of the claimants who are willing to work in a purported bid to redress their grievances. 2. Whether the defendants are entitled under the trade dispute Act to lock out and prevent willing workers and even passengers of the claimants from entering the claimant’s offices and operational premises without due process and at a time when the claimants suit over some alleged grievances in suit No. NIC/EN/209/2012 is pending before the National Industrial Court. 3. Whether the conduct of the defendants does not amount to an infringement of the claimant’s fundamental rights and their workers to freedom of movement, dignity of human person, personal liberty and right to freedom of association as enshrined in Section 34 (1)(a), 35 (1), 38 and 40 of the 1999 constitution of the Federal Republic of Nigeria as amended. 4. Whether the defendants are entitled to compel every worker in the employment of the claimants to pay them N2,000.00 per month upon receipt of their monthly salary whether or not such persons belong to their union or not or share their views even when the defendants collect check off dues from their salary. In arguing issue one counsel to the claimants cited Section 4 (1) of the Trade Disputes Act LFN 2004 Cap T8 which provides thus: “if there exists agreed means of settlement of the dispute apart from this Act, whether by virtue of the provisions of any agreement between organizations representing the interest of employers and the organization of workers or any other agreement, the parties to the dispute shall first attempt to settle it by that means”. He further stated that by virtue of Section 4 (2) of the Trade Dispute Act, if the attempt to settle the dispute as in S. 4 (1) fails or if no such agreed means of settlement as mentioned in S. 4(1) exists, the parties shall within 7 days of the failure or if no such means exists, within 7 days of the date on which the dispute arises or is first apprehended meet together by themselves or their representatives under the presidency of a mediator mutually agreed upon and appointed by or on behalf of the parties with a view to the amicable settlement of the dispute. By Section 6 of the Act, if within 7 days of the date on which a mediator is appointed in accordance with S.4(2) of the Act the dispute is not settled, the dispute shall be reported to the minister by or on behalf of either of the parties within 3 days of the end of the 7 days. By Section 6 (2) the report as mentioned in S. 6(1) must be in writing. It is submitted that by the combined reading of S. 4 and 6 of the Trade Dispute Act the resort to acts of hooliganism, blocking the gates of the claimants business premises, molestation and intimidation of the plaintiffs and members of their staff is in total violation of the Act and therefore unlawful. Counsel urged the court to so hold and resolve issue one in their favour. In arguing issue two, counsel submitted that by the provisions of Section 18 of the Trade Dispute Act, an employer shall not declare or take part in a lock out and a worker shall not take part in a strike in connection with any trade dispute where the procedure specified in Section 4 or 6 of this Act has not been complied with in relation to the dispute or if the matter is pending before the National Industrial Court. Counsel argued further that it is the evidence of the claimants that the defendants filed a suit in a bid to ventilate their alleged grievance and before the matter could be heard they resorted to locking out and locking in the claimants and members of their staff including resort other acts of lawlessness, molestation and hooliganism and intimidation, blocking and locking the claimants in and out of their business premises when their alleged grievance is pending before the court are in violation of the Trade Dispute Act and therefore urged the court to resolve issue No. 2 in favour of the claimants. In arguing issue three (3), Counsel to the claimants submitted that it is clear from the affidavit of the claimants that the defendants locked them in and out of their business premises as well as members of their staff and even passengers, attacking and assault the management and staff of the claimants and also force members of the claimant’s staff or employees to join them in their inordinate demands. By virtue of section 34 (1) of 1999 constitution of the Federal Republic of Nigeria (as amended), every individual is entitled to respect for the dignity of his person and no person shall be subjected to torture or to inhuman or degrading treatment. Section 35 of the said constitution guarantees every person right to his personal liberty and no person shall be deprived of such liberty. By section 39(1), every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and import ideas and information without interference. Section 40 of the said constitution 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 right. It is counsel’s submission that the act of locking the claimants out and in of their business premises by the defendants over a dispute or alleged grievance by the defendants is an infringement of the claimant’s fundamental right to freedom of movement and personal liberty and urge the court to so hold. Counsel cited the cases of Okere v. Arogundade (2009) 10 CHR Pg. 22 @ 25; Ofulue vs. FGN (2005) 3 NWLR (pt 913) 571 CA. See also Scott Emukapor v. Ehiwario (2004) 13 NWLR (Pt. 809) 10 SCA. the court held that any physical restraint of a person without any justifiable reason amounts to a violation of the right to personal liberty. See also Counsel went further that the act of assaulting, intimidating and molesting members of the staff of the claimants because they refused to join them in their act of locking out and in the claimants premises amounts to an infringement of their rights of freedom of expression and association as guaranteed under section 39 and 40 of the 1999 constitution. Chukwuma v. COP (2009) 8 NWLR (pt927) 278, by virtue of S. 40 of the 1999 constitution every person is entitled to any associate with other persons and may form or belong to any political party, trade union or any other associate for the protection of his right. He submitted that the defendants have no right to compel the employees of the claimants to join them in their inordinate demands and urged the court to so hold. In arguing issue 4, counsel cited Section 39(1) of the 1999 constitution guarantees a person’s freedom to express himself, hold opinions and views including ideas. Section 40 of the said constitution permits a person to freely assemble and associate, form or belong to any association for the protection of his interest. In support, Counsel cited the case of Registered Trustees of Igbo Community Oyo State vs. Cyril Akabueze & Ors 2011 CHR Pg. 1 @ 2. It is counsel’s submission that the act of molesting, intimidating and attacking the employees of the claimants because they refused to join the defendants or sympathize with their views and also the act of compulsorily collecting money from the employees of the claimants for the purpose of this organization when the said employees are not their members is a gross violation of Sections 39 and 40 of the 1999 Constitution of the Federal Republic of Nigeria as amended and urged the court to so hold and resolve issues No. 1 to 4 in favour of the Claimants. In opposition to the Claimant’s Originating Summons, Counsel to the Defendants on the 28th day of April 2014, filed a 39 paragraph Counter Affidavit deposed to by Comrade Emeka Okoroh wherein the Claimants denied engaging in the alleged acts of lawlessness and criminalities, including resorting to acts of hooliganism, molestation contained in the Plaintiffs’ Affidavit in Support of the Originating Summons. Counsel also filed a written address wherein he pointed out by way of introduction that the defendants were not served the processes, but rather, the processes were served on a staff of the 1st Plaintiff who is not a party in the suit, and that this was deliberate to overreach. He went on that the defendants heard of the suit as a rumour and entered an appearance on protest on record on 8th April 2014, and on 9th April 2014, the Defendants through their Counsel filed and served a Notice of Preliminary Objection to which the Plaintiffs have reacted and leave granted that the Originating Summons be heard along with the Preliminary Objection of the Defendants. Counsel proceeded to formulate a sole issue for determination, to wit: Have the plaintiffs proved their claims in the instant suit as to be entitled to judgment? He submitted that the Claimants have not proved their case as to be entitled to judgment in the suit, and that their affidavit evidence is hearsay, incredible and lacking cogency. It is trite law that he who asserts must prove. It is counsel’s submission that the plaintiffs have not provided any “good and credible evidence’ in support of their case and therefore bound to fail. Counsel cited the case A.G Bayelsa State vs. A.G Rivers State (2007) 8 WRN 1 at 50 where Mukhtar JSC stated that “…….it is incumbent on a party who is claiming a relief against his opponent to prove what he asserts, for unless he provides good and credible evidence to discharge the burden of proof placed on him by law, his case is bound to fail.” Also Section 132(2) of the Evidence Act, 2011 provide that “When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Counsel submitted that the nature of the allegations made by the plaintiffs in Paragraphs 8, 10, 19, 20, 22, and 23 of the affidavit in support of the summons are criminal in nature and are to be proved beyond reasonable doubt and that the affidavit in support of the originating summons did not disclose the relevant materials or particulars in proof of their case. Counsel further submitted that the deponent never averred to the fact that the facts are within his knowledge which renders his allegation and averments hearsay and incredible to be relied upon. It was Counsel’s further submission that the agreement in Exhibit ‘A’ which the claimants are relying on in making their case is a public document in law. It was made and signed by the Imo state Government. It is settled law that only the certified true copy of a public document is admissible in law. Exhibit A is a mere photocopy. It is not a certified true copy, and there is no deposition in the Claimant’s affidavit as to why Exhibit A is not certified, and ought to be rejected. He went further that if Exhibit A is rejected, it is fatal to the case of the claimants, and it takes away the locus standi of the 2nd Claimant to bring this action. He then submitted that the name of the 2nd Claimant and all claims by it should be struck out. Counsel cited the authorities of Abdul Ojo vs. Primate Adejobi & Ors (1978) 3 SC 65 @ 73; and Ernest Nzekwu vs. Madam Christiana Nzekwu (1989) 2 NWLR (Pt. 104) 373 @ 404. He also cited the case of Justice E.O Araka vs. Justice Don Egbue (2003)33 WRN 1 at 15 where Niki Tobi JSC stated that “….the only acceptable secondary evidence of a public document is a certified true copy of the document.” Counsel further submitted that in paragraphs 3.03 of the Claimants written address, they have relied on Section 4(1) of the Trade Disputes Act LFN 2004 Cap T8 which is not applicable. He argued that the section is only applicable where “there exists agreed means of settlement of dispute amongst the parties”, and that the Claimants have not exhibited the agreement upon which the submission is based; and that the legal implication is that if the agreement is exhibited, it will be unfavourable to the Claimant. He urged the court to discountenance that argument of the Claimant, as it has no foundation. Counsel also stated that there is no evidence by the Claimants that they activated the provisions of Section 4(2) of the Trade Dispute Act and the defendants refused to be bound by it. This onus he said, is on the Claimants. The Section does not state that it is a trade union or its members that will activate the provision in any event. It means that the provision can be activated by the Claimants too. He went on that the onus is on the Claimants to show that they activated the provision and the defendants refused to submit themselves to the said amicable settlement procedure of an industrial dispute. So, by the facts of this case the provisions are inapplicable and not helpful to the Claimants. Also Counsel submitted that Section 6 of the Trade Disputes Act is also not applicable as no mediator was proposed nor appointed, therefore the Claimants are wrong to state that the defendants ignored the procedures stipulated by the Trade Dispute Act. That the defendants were not involved in hooliganism, molestation and intimidation of the plaintiffs as no evidence was led to this effect. That no law was referred to, to show that the defendants were under an obligation or duty under the Act to activate the said conciliation process. It was therefore submitted that either of the parties could have activated the said procedures if the need arose. The Claimants are not exempted from activating the procedures; therefore they cannot accuse the defendants of not activating them. It was the submission of counsel to the defendants that there is no cogent and credible evidence by the Claimants as required by law to show that the defendants were involved or engaged themselves in the various alleged acts of hooliganism, molestation and intimidation of the Plaintiffs and members of their staff, and lawlessness. There is no iota of admissible evidence that the defendants locked or blocked the gates of the business premises of the Plaintiffs as alleged or engaged in the alleged acts of lawlessness. He went on that the defendants in their Counter Affidavit, paragraphs 22 – 34, frontally denied these allegations; that by the denials, the onus is squarely on the Claimants who are asserting, to prove these serious allegations against the defendants; and that they have failed to discharge this burden of proof. Counsel therefore urged the court not to resolve issue one in favour of the Claimants. On the application of Section 18 of the trade Disputes Act on strike and lock out, it was the Claimants’ submission that the section does not apply. The case of the Claimants is not one of strike and or lock out; and that their claims speak for themselves. Counsel went on that there is no evidence on record that the Defendants were involved in any lock out or strike action. The issue of engaging in a strike action and lock out in a workplace are clearly matters of evidence. They are not matters of assumption or presumption. The party alleging it must prove it. In this case, the defendants have denied all the allegations or claims against them by the Plaintiffs. Counsel therefore urged the court not to resolve issue No 2 in favour of the Claimants. On the allegation of violations or infraction of the fundamental human rights of persons in the premises of the Claimants by the defendants, the Defendants submitted that there is no evidence on record in support of the claims. More so, the defendants have frontally denied the allegations, the Plaintiffs are chasing shadow. The defendants did no wrong to be held liable for violation of the fundamental rights of persons. What are the names of the persons whose fundamental human rights are violated? When were these violations? Was there any report to the Police or any other relevant authorities of the alleged violations? Counsel also submitted that the claimants have not led evidence on the allegation of violations or infraction of the fundamental human rights of a person in the premises of the claimants by the defendants and no police reports was also submitted in this regards. Specifically, there is no evidence that the defendants were making “inordinate demands” before talking of compelling the employees of the Claimants to join. Counsel therefore urged the court not to resolve issue No 3 in favour of the Claimants. The last issue raised by the Claimants is that the defendants are compelling workers of the Claimants to pay Two Thousand Naira (N2,000.00). In paragraph 32 of their Counter Affidavit, the defendants unequivocally denied the allegation as false. The Claimants never stated when the alleged sum was imposed and how. They did not state the employees that the sum was forcefully collected from or otherwise? Assuming that there is a levy of Two Thousand Naira by the union for its members, the Claimants have not shown that the union has no authority to levy its members. Neither have they shown how it affects them. The plaintiffs are simply anti-union, concocting every manner of allegation to stop the 1st defendant from operating in the 1st Claimant. He went on that the Claimants are clearly busy bodies on this. There is no employee on record who has complained or is complaining. So, what is the right of the plaintiffs to complain? He further submitted that a trade union has a right to levy its members and if there is complaint, it should by the individual members in accordance with the union’s constitution and the relevant trade union laws. An employer has no right of complaint as it does not concern it. It is an internal organizational affair of the trade union. Counsel therefore, urged the court not to resolve Issue No. 4 in favour of the Claimants. In totality, counsel to the defendants submitted that the Claimants have not made any case against the defendants or any of them, and urged that the case should be struck out with substantial cost. The Claimants on the 14th day of May 2014 filed a reply on points of law wherein they contend that the defendants have not challenged the originating summons, except an attack on the quality of evidence. It is settled law that in an originating summons proceedings, it is the case put forward by the plaintiffs that the court looks at in determining if the facts are contentious or not, and not the averments in the defendant’s counter affidavit. It is again settled law that where a plaintiff claims a declaratory relief based on interpretation of statute, the declaration can be made in the light of the law submitted, notwithstanding the nature of the evidence before the court. In IKINE V. EDJERODE (2001) 18 NWLR PT 745 PG 446, the Supreme Court held at pages 482 – 483 paragraphs F – H, that: “A declaratory relief or declaration can be made even when there is no cause of action…. This court has held in several cases that a declaration can be granted to a party who conceives that it has a right even if there is no cause of action…..” See ADIGUN vs. A.G. OYO STATE (19787) 1 NWLR Pt. 53 Pg. 678; BEREGUGO vs. COLLEGE OF SCIENCE TECHNOLOGY (1991) 4 NWLR Pt. 184 Pg. 651; A.G. OF KADUNA vs. HASSAN (1985) 2 NWLR (Pt. 8) Pg. 483. The defendants objected to the admissibility of the plaintiff’s exhibit A to the originating summons. The ground of this submission is that Exhibit A was not certified as the true copy of the original. It is submitted that Exhibit A is not a public document within the meaning of Section 109 of Evidence Act 2011. That document is an agreement between the government and the Claimants. It is submitted that the Claimants being private persons are entitled to tender in evidence the copy given to them after execution without having same certified. Exhibit A was not a unilateral document of a government official neither is the government the sole custodian of that document. The plaintiffs are entitled to tender the document given to them at the time of execution which is in their private custody. Secondly, Exhibit A does not qualify as a public document, in that is not a document made for the benefit of the public or with a view that members of the public will have access to or refer to it for purpose of making reference on application and of payment of fees. See SHYLLON vs. UNIVERSITY OF IBADAN (2007) 1 NWLR Pt. 1014 Pg. 1 at PG. 14 – 15 (RATIO 1 & 2); DALE POWER SYSTEM PLC vs. WITT & BUTSH LTD. All FWLR Pt. 394 Pg. 383; LAMBERT vs. NIGERIA ARMY (2006) 7 NWLR Pt. 980 Pg. 514 at 544-545; GOVERNOR OF EKITI STATE vs. OSHO (2006) 17 NWLR Pt. 1007 Pg. 95 at 129 PARA B-D. The defendants have not told the court who is the statutory custodian of Exhibit A, to whom application for certification can be made. It is further submitted that no objection can be taken to a document annexed to an affidavit as evidence. See OSITA NWOSU vs. IMO STATE ENVIRONMENTAL SANITATION AGENCY (1990) 2 NWLR Pt. 135 Pg. 688 (being an originating summons proceedings as in the instant case) CROSS RIVER PROPERTY DEVELOPMENT AND INVESTMENT AGENCY vs. EBONGHA (2008) 8 NWLR Pt. 670 Pg. 751; BATURE vs. SAVANNA BANK PLC (1998) 4 NWLR Pt. 546 Pg. 438; DAGASH vs. BULAMA (2004) 3 NWLR PT 892 PG 144. Counsel to the Claimants therefore urged the court to discountenance the argument of defendants and enter judgment for the Claimant having regard to the Trade Dispute Act and the Constitution of the Federal Republic of Nigeria whose provisions are sought for interpretation in the instant suit; and that it is by so interpreting that the parties will be guided as to their rights and mode of enforcement of same. By a Notice of Preliminary Objection dated the 8th day of April 2014 and filed on the 9th day of April 2014, the defendants sought for “An order that the suit is incompetent, abuse of process of law, and that the trial court has no jurisdiction to hear the suit, and therefore ought to be struck out.” The grounds upon which the objection is brought are: 1. The 1st Claimant is a registered trade union in Nigeria. 2. The 2nd – 10th Defendants were not served. 3. The 2nd – 10th Defendants are agents and servants of the 1st Defendant, a known principal. 4. The Plaintiff’s complaints are tortuous acts. 5. The Plaintiff’s action is contentious and hostile and ought not to be initiated by Originating Summons. The Counsel to the defendants in his written address in support of the preliminary objection stated the grounds of the objection as being: a. That the Defendants appeared on protest. b. The defendants have complained to the court that they were not served with the court processes. Counsel proceeded to formulate the following three (3) issues for the court’s determination: 1. Is the Claimant’s action competent in law? 2. 2nd – 10th Defendants being agents and servants of the 1st Defendant, a disclosed principal, can they be validly sued in law? 3. In view of the averments by the Plaintiffs’ Affidavit in Support of the Originating Summons, can it be said that the Claimants adopted the procedure? In arguing issue No 1, Counsel to the Defendants submitted that the Plaintiff’s suit is bad in law. That the 1st defendant is a registered trade union in Nigeria, and it is listed as Number Two in the Third Schedule Part A of the Trade Unions Act Cap T14 Laws of the Federation, 2004. He went on that by Section 21 (1) of the Trade Unions Act 2004, all communications and notices are to be served at the registered office of the Union. He stated that a review of the plaintiffs’ affidavit in Support of the Originating Summons will not disclose that the registered office of the 1st defendant is Imo Transport Company Limited for it to be served. Counsel buttressed his argument by the fact that the 2nd defendant is sued as the “CHAIRMAN, ITC UNIT AMALGAMATED UNION OF PUBLIC CORPORATIONS CIVIL SERVICE TECHNICAL AND RECREATIONAL SERVICE EMPLOYEES”. This is an admission on record that what is in Imo Transport Company Limited is a Unit or branch of the 1st defendant, and not the registered office. He submitted that ‘ITC Unit AUPCTRE’ is not a legal personality but a Unit or branch of the registered trade union. It cannot sue or be sued.in the company. It was Counsel’s further submission that the plaintiffs in the quest to obtain judgment against the rules of court lied on oath that the 1st defendant is a staff of the 1st plaintiff. He referred to paragraph 4 of the Affidavit in Support of the Originating Summons. The 1st defendant is a corporate entity like the 1st plaintiff, and that the plaintiffs lied so that they could serve the 1st defendant in the 1st plaintiff, and that this is wrong and an abuse of process. He stated that a court has jurisdiction only in respect of natural and artificial persons within its jurisdiction, and that the onus is on the plaintiffs in this case to show that the court has jurisdiction over the persons that they have sued. He urged the court to strike out the suit since there was no such evidence before the court. He went on that the defendants have stated that they were not served the summons. The onus is, therefore, on the plaintiffs who are claiming that the defendants were served to show by cogent and credible evidence that each of the defendants was, indeed, served. By the peculiar facts of this case, Counsel said, even an affidavit of service by a Bailiff of this honourable court, if any, will not suffice. The honourable court is urged to take judicial notice of the fact that the action was brought during the alleged lock-out of the plaintiffs by the defendants. It was a time that the Claimants alleged that their lives were in danger; therefore it would have been impossible for their officers who were said to be on the run to act as pointer for the bailiff of this court to serve the defendants? This, Counsel argued, raises the onus of proof of service on the plaintiffs. It is natural that service could not have been possible in the situation claimed by the plaintiffs. The court bailiff had not met the defendants before to say that they were personally known to him. A bare affidavit of service, if any, is not enough, especially as there was no order for substituted service made. Counsel therefore urged the court to strike out the suit as it is bad in law. In arguing Issue No 2, it was the submission of Counsel to the Defendants that the plaintiffs have admitted that the Amalgamated Union of Public Corporations Civil Service Technical & recreational Service Employees is the principal of the defendants; and that it is settled law that the agents of a disclosed principal cannot be sued in law. He contended that the plaintiffs’ action is bad for suing agents of a known and disclosed principal. He therefore prayed the court to strike out the names of the 2nd – 10th defendants. He went on that it is settled law that an agent of a known and disclosed principal incurs no liability in law because his act is the act of the principal. It is the principal in the eyes of the law that did or omitted to do whatever the agent did or omitted to do. In UBA V. OGUNDOKAN (2009) 31 WRN 21, Adekeye, JCA (as he then was) held as follows: “An action against an agent in its private capacity for acts done on behalf of a known and disclosed principal is incompetent.” Counsel made further reference to the Supreme Court decision in the case of NIGER PROGRESS LTD. vs. NEL CORPORTATION (1989) 3 NWLR (Pt. 107) 68. Counsel to the defendants went on that the 2nd – 10th defendants are sued as members of the 1st defendant by the claimants in respect of acts allegedly carried out as members of the Union; and that this makes the action incompetent. It is trite that an agent of a known and disclosed principal cannot be joined as a party with his principal in a claim arising from the agency and if joined, the court will strike out the case against the agents. The claimants in paragraph 16 of the Affidavit in Support of the Summons stated that the 1st defendant “rallied the others defendants and they blocked the gate”. The allegations arose in the course of discharging their duties and responsibilities as members of the 1st defendant. Counsel urged the court to strike out the names of the 2nd – 10th Defendants. In arguing Issue No 3, it was the submission of Counsel to the defendants/applicants that the claimants’ action is of a hostile nature. The Claimants claimed that the Defendants locked the company gates, blocked roads, assaulted persons, etc. he said these are matters for trial that will require testimonies by the parties and cross-examination. The procedure adopted will not allow the defendants to ventilate their case adequately. He cited the case of S. A. I. OSSAI V. ISAAC WAKWAH & ORS (2006) 16 WRN 136 at 166, where Oguntade JSC held that “it is well settled that a civil suit should not be commenced by Originating Summons where there is a dispute or likelihood of a dispute on the facts.” He said that in this case, there is likelihood of dispute of those serious material allegations of illegality by the plaintiffs, and this makes the case one of hostile proceedings. If therefore the court holds that the case is competent, counsel urged that the Court should order the parties to file their pleadings for a trial of the action on its merits. In totality, counsel urged the court to strike out the suit of the Claimants as it is bad in law. In opposition to the Defendant/Applicants’ preliminary objection, the Claimants filed a reply wherein they canvassed seriatim, arguments in opposition to the 3 issues formulated by the applicants. In reaction to Issue No 1, Counsel to the Claimants submitted that it is clear from the records of the court that the defendants were served in accordance with the rules of this court. The 2nd to the 10th defendants are officers of the 1st defendant union at the ITC Unit. All actions carried out by them giving rise to its action where carried out in the name of the 1st defendant. They are therefore principal officers of the 1st defendant. He went on that the argument in paragraph 4.04 of the applicant’s address is clearly not tenable as it is apparent on the face of the processes filed that the plaintiff did not sue the ITC unit of AUPCTRE but rather the union as an entity. He went on that the 2nd defendant being sued in the capacity in which he carried out the actions of the subject matter of this suit cannot affect the competence of this suit. The suit is competent even with the 1st defendant alone. The 2nd – 10th defendants where sued because of the roles they played purportedly on behalf of the first defendant. The action against them in a representative capacity is therefore proper in law as they purported to be acting in the name of the union. Counsel submitted further that the argument in paragraph 4.05 of the defendants’ address is legally misconceived and grossly frivolous, as there is a cause of action as shown in the claimants’ affidavit in support of the originating summons. It was counsel’s further submission that the suit cannot constitute as an abuse of court process merely because there is an error or misnomer in the description of the first defendant which does not in any way mislead the parties or the court. He submitted that the description of the 1st defendant as a staff of the 1st plaintiff is a misnomer which has in no way misled the parties. See OGBORU vs. IBORI (2004) 7 NWLR Pt. 871 Pg. 192; NJOKU vs. U.A.C. FOODS (1999) 12 NWLR Pt. 632 Pg. 557. He further submitted that this misnomer alone cannot render the action incompetent. The same can also not render the suit as an abuse of court process. A further argument proffered on this point is that the ingredients of abuse of court process has been well clearly spelt out in a plethora of authorities including R- BENKAY NIG. LTD. vs. CADBURY NIG. PLC. (2012) 9 NWLR (Pt. 206) Pg. 596 and TSA IND. LTD. vs. FIRST BANK OF NIG. LTD (2012) 14 NWLR (Pt. 1320) Pg. 326. It was Counsel’s further submission that this notice of preliminary objection was not supported by any affidavit evidence. The submissions based on facts therefore ought to be facts derived from the originating summons itself. The argument in paragraph 4.05, 4.06and 4.07 of the preliminary objection are essentially arguments on facts which counsel urged the court to discountenance, in the absence of any affidavit verifying the same. It is elementary law that the submission of counsel does not take the place of evidence. It is also elementary law that to challenge a bailiff’s affidavit of service requires a counter affidavit deposed to by the party said to have been served. See FATOKUN vs. SOMADE (2003) 1 NWLR (Pt. 802) pg. 431 @ 438, where it was held that; “Where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing of a counter affidavit to controvert the affidavit of service. The failure by the Appellant to file such a counter affidavit is fatal to his case and his oral argument on the hearing date that he was not served with the motion and other processes in the suit cannot avail him” Counsel took further shelter in the case of I.B.W.A. vs. Sasegbon (2007) 16 NWLR (Pt. 1059) Pg. 195 @ 203 ratio 5, where it was held that; “where an affidavit of service has been sworn to by the bailiff, the presumption is that proper service has been effected”. It is again elementary law that where a person has not been served or has been irregularly summoned to court, all that they can do is to apply to the court to set aside the alleged irregular service so that he can be properly served and not to challenge the jurisdiction of the honourable court. Counsel therefore submitted that issue No 1 should be resolved against the defendants. In reaction to issue No. 2, it was the submission of counsel to the claimants that the 2nd -10th defendants where sued for the illegal acts carried out by them by blocking the entrance gates of the plaintiffs’ business premises; that they have not shown that they have the mandate of the 1st defendant to do so, therefore, they can be sued personally for their own wrongful act. They were not therefore sued in their capacity as agents of the 1st defendants. Nevertheless, the law is that to make a master vicariously responsible for the act or misconduct of the agent, the servant must be made a party. See MGT ENTERPRISES LTD. VS. OTUSANGA (1987) 2 NWLR PT 55 PG 17. On this premise, Counsel urged that issue No. 2 also be resolved against the defendants. In reaction to issue No. 3, it is the submission of Counsel to the Claimants that this action seeks for an interpretation of the Trade Disputes Act as cited in the written address in support of the Originating Summons. The questions for determination are clearly questions of law bordering on interpretation of that law with a view to determine the extent of the powers of the defendants and indeed how a trade union or members ought to ventilate or pursue their grievance or rights. He went on that the primary question is whether the members of trade union can resort to acts of hooliganism or lawlessness on the purported exercise of their rights as such members without due process or compliance with the provisions of the Trade Disputes Act. The supporting affidavit is to ventilate the cause of action that is to say the conduct of the defendants giving rise to the suit. Those allegations have not been denied. They therefore cannot be said to be contentious issues. The acts of locking the gates of the plaintiffs, occurred in the full glare of the public, hence the court sitting within jurisdiction can take judicial notice of it. On this premise, Counsel urged the court to resolve issue No. 3 against the defendant. On the grounds of objection, Claimants’ Counsel submitted that the 1st Defendant carries on its business in Imo state using its representatives; hence it can also be served within jurisdiction through those members. He also submitted that grounds 2, 3, 4 and 5 as contained on the notice of preliminary objection are clearly misconceived and ought to be dismissed. Counsel urged the court to dismiss the preliminary objection of the defendants and to proceed to determine the originating summons on its merits. I have carefully considered the processes filed and arguments proffered in the substantive suit and the preliminary objection, both of which were heard together on the 14th day of May 2014. The preliminary objection of the defendants touches on jurisdiction; therefore it is expedient that it ought to be first considered and determined. The defendants’ notice of preliminary objection filed on 9/4/2014 prays this court to strike out this suit for reason of incompetence, abuse of process and lack of jurisdiction. The grounds upon which the objection is raised are- i. The 1st Claimant is a registered trade union in Nigeria. ii. 2nd - 10th Defendants were not served. iii. 2nd - 10th Defendants are agents and servants of the 1st Defendant, a known principal. iv. The Plaintiff's complaints are tortuous acts. v. The Plaintiffs' action is contentious and hostile, and ought not to be initiated by Originating Summons. In his written address in support of the preliminary objection, counsel to the defendants, Mr. Dureke Esq., formulated the following issues for determination, which issues, I have observed, have been adopted by the claimants’ counsel in his reply: i. Is the Claimants' action competent in law? ii. 2nd - 10th Defendants being agents and servants of the 1st Defendant, a disclosed principal, can they validly be sued in Law? iii. In view of the averments by the plaintiffs' Affidavit in Support of the Originating Summons, can it be said that the Claimants adopted the procedure? For the purpose of this ruling, I shall adopt the 3 issues formulated by the defendants counsel but I prefer to reframe them in the following manner- 1. Whether there is proper service of the originating process on the defendants? 2. Whether the 2nd to 10th defendants can be made parties in this suit they being agents of a disclosed principal, which is the 1st defendant? 3. Whether Originating Summons is the proper process to commence this suit in view of the nature of the facts deposed in the affidavits of parties in this suit. ISSUE ONE: The contention of the defendants counsel on this issue is two pronged. The first is that the 1st defendant was not served the originating process at its registered office as required by Section 21 (1) of the Trade Unions Act. According to the defendants counsel, the originating process was served on the 1st defendant at the ITC unit of the 1st defendant. This mode of service, counsel submitted was wrong service as the ITC Unit is not the registered office of the 1st defendant. Secondly, counsel contended that the 2nd to 10th defendants were not served the originating process at all. I have looked at the originating summons in this suit and I have seen that the address indicated thereon for which service is to be effected on the defendants is “Imo Transport Company Limited, No. 16/28, MCC/Uratta Road, Owerri, Imo State”. I have also seen the affidavit of service deposed to by the bailiff of this court on 24th March 2014. The bailiff has deposed that on the 21st March, 2014 and again on the 24th March 2014, he went to the 1st defendants’ office at 16/28 MCC/Uratta Road, Owerri with the Originating Summons and other processes to serve on the 1st to 10th defendants but they were not seen at the office at both dates and the office was locked up. The bailiff then left the processes for service on the 1st to 10th defendant at the entrance door to their office at No. 16/28 MCC/Uratta Road, Owerri. The question then is: “With this affidavit of service by the bailiff, can it be said that the defendants have not been served?” The procedure for service of process of court is usually as provided in the rules of the court. See DAEWOO NIG LTD vs. UZOH (2008) All FWLR (Pt. 399) 457 at 471/472. By Order 7, Rule 1 (1) of the National Industrial Court Rules 2007, originating processes for service on a party, among other modes under the rules, may be “left at that person’s address for service”. Furthermore, Rule 6 of the Order provides that originating process to be served on any organization or body corporate may be served by delivery to a director, secretary, trustee, or any senior, principal, responsible officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction. Section 21 (1) of the Trade Unions Act cited by defendants counsel provides that: “Every trade union shall have a registered office to which all communications and notices may be addressed”. In my view, this provision has not mandated service of court process only on the registered office of the 1st defendant. I cannot infer any insistence by that provision that court processes must be served at the registered office of the 1st defendant as contended by the defendants counsel. In I.B.W.A vs. SASEGBON (2007) All FWLR (Pt. 388) 1099 at 1117, it was held that one of the ways of effecting service on corporate organizations is by leaving the process at the registered office or by leaving it at the principal place of business within jurisdiction. In that case, taking Order 7, Rule 6 of the Rules of this court into consideration, processes of this court can be served on the 1st defendant in any of its places of business. Place of business could be a branch, a subdivision or a unit of the 1st defendant. It has been shown that the 2nd to 10th defendants are officials of the ITC unit of the 1st defendant. The said ITC premises, as shown in paragraphs 12 of the affidavit in support of the originating summons, is at 16/28 MCC/Uratta Road, Owerri, which address is within the jurisdiction of this court. The 1st defendant has a unit at ITC and the processes were left for the defendants in that address. From the bailiff’s affidavit of service, it is clear that the service has not offended the rules of this court in any way. Where an affidavit of service has been sworn to by the bailiff, the presumption is that proper service has been effected. See I.B.W.A vs. SASEGBON (SUPRA) at 1118. The burden is on the party disputing service to prove the non-service. The way to do that is to depose to a counter affidavit to rebut the bailiff’s affidavit. See FATOKUN vs. SOMADE (2003) 1 NWLR (Pt. 802) 431 at 438. The defendants did not do that in this case, rather they raised this preliminary objection. Perhaps if there was an affidavit in support of the objection, facts therein may have bourne the semblance of an objection to facts deposed to by the bailiff of court in the affidavit of service. Unfortunately there is no affidavit to that effect. Neither is there a counter affidavit in opposition to the affidavit of service deposed to by the bailiff of court. Since the bailiff’s affidavit of service has not been challenged, and in view of the service on the defendants in accordance with the Rules of this Court, I find that the 2nd to 10th defendants have been served and the service on the 1st defendant is proper and valid service. I so hold. Assuming without holding that the service was irregular or invalid, let me point out that as much as service is of huge importance in a suit, it has been held that the purpose of service on parties is to bring the process to the notice and attention of the adverse party. This has been settled by the Supreme Court in ELMISKO IND. vs. EXQUISITE INDUSTRIES (2003) FWLR (Pt. 151) page 184 at 186. Per Ogundare JSC. In KIDA vs. OGUNMOLA (2006) 13 NWLR (Pt. 997) 377, the Supreme Court again held that: “The object of the service is to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him.” In the instant case, the defendants have become aware of the claims against them in the originating summons. They have proceeded to file their counter affidavit to the originating summons and have infact file a preliminary objection raising issues that are now being determined in this ruling. In ETIM & ORS vs. OBOT & ORS (2009) LPELR-4128(CA), the Court of Appeal held that once the existence of the suit has been brought to the notice of the adverse party and they have taken steps in the matter, they are deemed to have waived the irregularity complained of. Uwani Musa Abba Aji JCA again held in the case of MAKO vs. UMOH (2010) LPELR-4463(CA) that an application to set aside an originating process will only succeed if the defendant has not taken fresh steps in the matter. Taking fresh steps will amount to a waiver of the irregularity complained of. By TOTAL INT. LTD. v. AWOGBORO (1994) 4 NWLR (Pt.337)147, if the service complained of actually succeeded in attracting the knowledge of the party it was addressed to, and they have indeed appeared and taken further steps as in this case, then the perceived irregularity should not render a trial nugatory. Issue One is resolved against the defendants. ISSUE 2: In his argument on his issue 2, it is the view of counsel to the defendants that since the 2nd – 10th defendants are the agents of the 1st defendant, who is already a party in the suit; the 2nd – 10th defendants cannot be sued. It is counsel’s contention that the 2nd - 10th Defendants are sued as members of the 1st Defendant in respect of acts allegedly carried out as members of the 1st defendant. Counsel submitted that an agent of a known and disclosed principal cannot be joined as a party with his principal in a claim arising from the agency. Counsel consequently prayed this court to strike out the names of the 2nd - 10th defendants from the suit. It is trite that before a person can be made a party to a suit, it must be shown that there is a cause of action against that person. I have read the affidavit in support of the originating summons and I have seen that paragraphs 8 to 24 thereof disclose sufficient cause of action against the 2nd to 10th defendants. It is disclosed in these paragraphs that the 2nd to 10th defendants, being staff of the 1st plaintiff and members of the 1st defendant, were involved in acts of hooliganism, molestation and intimidation of the plaintiffs staffs and passengers; locking of the gates to the plaintiffs’ premises; preventing people from entering or leaving the premises, and forcefully collecting N2000 from workers. Although acting as members of the 1st defendant in furtherance of a perceived trade dispute, the 2nd to 10th defendants were alleged to have perpetrated the acts personally. With these allegations made against the 2nd to 10th defendants, they have become necessary parties to the suit. I cannot see how the questions and issues in this case can be effectively and completely determined unless they are parties to the suit and are given opportunity to answer to the allegations. Furthermore, the questions submitted in the originating summons for determination by this court arose from the acts of the 2nd to 10th defendants. The resultant reliefs sought by the claimants also relate to the alleged acts of the 2nd to 10th defendants. Reliefs 6, 7 and 8 specifically and particularly directed at the 2nd to 10th defendants. How can they not be made parties to the suit? It is settled principle that a person who will be affected by the outcome or result of a suit must be made a party thereto. This is to make the result of the case binding on him. See OJO vs. OGBE (2008) All FWLR (Pt. 433) 1344 at 1356. It is also trite that a court has no jurisdiction to make an order which affects the interest of a person who has not been joined as a party. See OKONTA vs. PHILLIPS (2011) All FWLR (Pt. 568) 977 at 980-981. These principles of law in view, the prayer of the learned counsel for the defendants that I strike out the name of the 2nd to 10th defendants has no merit. Considering the allegations against the defendants and the reliefs sought against them, the prayer of the defendants counsel is tantamount to asking this court to deny the 2nd to 10th defendants their constitutional right to be heard on their own side of the dispute. This court cannot be so swayed. I cannot also agree with the submission of counsel to the defendants that the 2nd – 10th defendants cannot be sued along with their principal; the 1st defendant. In my view, in order to make the 1st defendant liable for the acts of the 2nd to 10th defendants, they must be joined with the 1st defendant in the suit. See MGT ENTERPRISE LTD vs. OTUSANGA (1987) 2 NWLR (Pt. 55) 17. I find that the 2nd to 10th defendants are proper parties to this suit and their presence is necessary for the effective determination of the suit. I resolve this issue against the defendants. ISSUE 3: In arguing his 3rd issue, the defendants counsel submitted that the depositions in the plaintiffs’ affidavit in support of the originating summons disclose a hostile proceeding. Counsel is therefore of the view that such proceedings ought not to be by originating summons. In his reply to this point of the objection, counsel to the Claimants submitted that the suit is merely seeking for the interpretation of sections of the Trade Dispute Act. It is his submission that the suit is not contentious as the questions for determination border on interpretation of law with a view to determine the extent of the powers of the defendants and how a trade union or its members should pursue their grievances. Originating summons is usually employed to commence actions 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. It is used for non-contentious actions or matters. See DAPIANLONG vs. DARIYE (2007) 4 S.C. (Pt. III) 118 at 167-168; OSSAI vs. WAKWAH 2006 All FWLR (Pt. 303) 239 at 255. Thus, where the facts are likely to be in dispute, it is improper to commence such action by originating summons. See F.G.N vs. ZEBRA ENERGY LTD (2003) FWLR (Pt. 142) 154 at 192/193. The Claimants’ affidavit in support of the preliminary objection contains allegations to the effect that the defendants engaged in acts of hooliganism, molestation and intimidation of the Claimant’s staffs and passengers. The defendants was said to have further locked the gates of the Claimants’ premises thereby preventing anybody, including passengers and workers of the plaintiffs, from either leaving or entering the premises. The defendants, who have vowed to continue to harass, intimidate and molest the management of the Claimants as well as their staffs including their passengers unless their demands are met, also demanded and forcefully collect payment of N2000 from every member of staff of the claimants. These facts were denied by the defendants in their counter affidavit wherein the defendants made separate allegations against the Claimants. From the affidavit of the parties, it is clear that a dispute of facts have arisen. These facts can only be resolved and determined by pleadings and taking oral evidence. 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. vs. ABUBAKAR (2007) VOL. 41 WRN 61 at 88. The Claimants’ allegations against the defendants do not border mainly on, or are not limited to interpretation of the said sections of the Trade Disputes Act; but it is woven around acts of wrongdoings, criminality and illegality by the defendants. 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. These matters cannot be resolved under the originating summons procedure. See Dr. AKINOLA E. OMOJOLA vs. DADA OYATE (2007) LPELR-8359. I am of the view, and I agree with the defendants counsel, that originating summons is not a suitable procedure to adopt in this suit. I hold therefore that this action was wrongly commenced by means of originating summons. The proper procedure for an action of this nature ought to be by way of Complaint and not by Originating summons. Issue 3 is therefore resolved against the claimants. In this scenario, the proper order to make would be to order pleadings and not to strike out the case. I am guided to take this decision by the decided case of OSUNBADE vs. OYEWUMI (2007) 18 NWLR (Pt. 368) 1004 at 1015 where the Supreme Court held 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.” I hereby order the parties herein to file and serve their pleadings. The claimant shall within Fourteen days from today, file and serve his Statement of Facts and other relevant processes in accordance with Order 3 Rule 4 of the Rules of this Court. The defendants shall file and serve their Statement of Defence and other defence processes within Fourteen days of receiving the Statement of Facts. The case will then proceed to hearing. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge