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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, PHD DATE: FEBRUARY 12, 2015 SUIT NO. NIC/LA/20/2014 BETWEEN 1. Mr. T. G. Aderemi 2. Mr. S. A. Bodunrin 3. Mrs. V. B. Okewumi 4. Mr. T. S. Adeleye 5. Mr. A. A. Tanimowo (Suing for themselves and as accredited representatives of Teacher Pensioners under the administration of the Teachers Establishment, and Pensions Office, Lagos State) - Claimants AND 1. Incorporated Trustees of Teacher Pensioners Association of Nigeria (TEPAN) 2. Nigeria Union of Pensioners Lagos State Council 3. Ministry of Establishment Training & Pensions, Lagos State 4. Attorney General of Lagos State - Defendants REPRESENTATION O. Idemudia, with are, A. Ajagbe and Miss Valentine Egboh, for the claimant. O. K. Salawu, with are Audu Augustine, Tolu Agbona, Miss Folakemi Praise and Mrs. Dupe Omo-Ekpadi, for the defendant. RULING By a complaint and statement of facts respectively dated 22nd January 2014 but filed on 23rd January 2014, the claimants are claiming against the defendants the following reliefs – (a) A declaration that the 1st defendant is not a trade union and cannot unionize under the Trade Unions Act. (b) A declaration that the exclusion of the claimants from the NUP State Council election held on 8th November 2012 was wrongful, unlawful, illegal and amounts to an infringement of the constitutional rights of the claimants. (c) An order nullifying the NUP State Council election held on 8th November 2012. (d) An order restraining the 1st defendant from carrying on its activities in the name of NUP Teachers Pensioners Branch in Lagos State. (e) A declaration that all the activities of the 1st defendant carried out in the name of NUP Teachers Pensioners branch were fraudulent misrepresentations and as such null and void ab initio. (f) An order compelling the 1st defendant to give full account of all disbursements/payments of check-off dues made to it by the 2nd defendant since 1st November 2010 till date and remit same unto the 2nd defendant’s coffers. (g) An order compelling the 2nd defendant to give account of all check-off dues paid to it by 3rd defendant since 1st November 2010 till date. (h) An order restraining the 3rd defendant from disbursing /paying or releasing any part of the check-off dues of the claimants to the 1st defendant in any manner howsoever. (i) Perpetual injunction restraining the 1st defendant from carrying on as a trade union in Lagos State. (j) An order declaring as wrongful, unlawful, illegal, unconstitutional, null and void, all acts and deeds of the 2nd defendant recognizing and dealing with the 1st defendant as a trade union. (k) General damages against the 1st and 2nd defendants in the sum of N2 million for the infraction of the constitutional rights of the claimants. At the Court’s sitting of 8th May 2014, the Court noted that as part of the defence processes of the 3rd and 4th defendants is an enrolled order of a consent judgment by the Lagos State High Court in Suit No. ID/853/2008, which accordingly raises the question whether this Court has the competence of assuming jurisdiction over this case. Parties were then asked to address the Court on the issue by filing written addresses as per the Rules of the Court starting with the claimants. The claimants’ written address is dated 21st July 2014 but filed on 6th August 2014. That of the 1st and 2nd defendants is dated 28th August 2014 but filed on 1st September 2014. The 3rd and 4th defendants’ written address is dated 30th September 2014 but filed on 3rd October 2014. The claimants did not file any reply on points of law. CLAIMANTS’ SUBMISSIONS The instant case is a representative suit brought by the claimants for themselves and as accredited representatives of Teacher Pensioners under the Teacher Establishment and Pension Office (TEPO) Lagos State. The claimants are members of the Nigeria Union of Pensioners (NUP) and also filed this action on behalf of other members of the union who are not members of the 1st defendant. From the claimants’ statement of facts, the following are the background issues leading to the filing of this suit – 1. The claimants and the members of the 1st defendant were together as members of Nigeria Union of Pensioners Teachers Pensioner branch up till 2002 when the members of the 1st defendant pulled out to form Teachers Pensioners Association of Nigeria. 2. The name of the 1st defendant was registered sometime in 2007. 3. The claimants were left under the Teacher Establishment and Pension Office in the Ministry of Establishment, Training and Pensions Lagos State i.e. a department of the 3rd defendant. 4. The 3rd defendant through its Permanent Secretary in the Teachers Establishment and Pension Office stopped the remittance of check-off dues to the 1st defendant in 2008 on the ground that the 1st defendant was not a trade union. 5. This was the basis of the 1st defendant’s action in Suit No. ID/853/2008 against the 2nd, 3rd and 4th defendants in the High Court of Lagos State. 6. Eventually, terms of settlement were entered into by the parties and adopted by the Court as the judgment of the Court, referring to the copy of same is attached to the claimants’ statement of facts before this Court. To the claimants, the claims in ID/853/2008 in contradistinction to those (already outlined) of the claimants in this suit are – a) A declaration that its members are constitutionally entitled to associate freely and belong to any group or form any association of their choice. b) A declaration that the claimant is an association registered under the relevant laws in Nigeria as the official representatives to Teacher Pensioners in Lagos State and therefore entitled to check-off dues from its members. c) An order compelling the 1st defendant to recognize the claimant as a body corporate and henceforth pay all monies collected as check-off dues to the claimants’ accredited representatives. d) An order of perpetual injunction restraining the 3rd defendant from further collecting the check-off dues belonging to the claimant. e) An order compelling the 3rd defendant to account to the claimant of all monies collected as check-off dues from 4/10/2006. The claimants then framed two issues for the determination of the Court, namely – 1. Whether or not the claimants have a reasonable cause of action in this suit. 2. Whether or not this suit is a re-litigation of Suit No. ID/853/2008 and, therefore, an abuse of court process. Before proceeding with arguments on these issues, the claimants prayed the Court to note that the only materials which the Court is permitted to look into in order to determine whether there is a reasonable cause of action in this suit are the claimants’ originating processes i.e. the claimants’ complaint, statement of facts establishing the cause of action and the accompanying documents given that the two issues framed go to jurisdiction, referring to MGSL Ltd v. WBS Ltd SC/178/2005; [2013] 1 NWLR page 581 (incomplete citation), UBA Plc v. BTL Ind. Ltd [2006] 19 NWLR (Pt. 1013) and NDIC v. Okem Enterprises Ltd [2004] 10 NWLR (Pt. 880) 107. Furthermore, that it is settled that once the plaintiff expresses on a writ or statement of claim that action is brought in a representative capacity, it is prima facie throughout conclusive evidence of authority by his group, family or community to sue in that capacity, referring to Shell Petroleum Development Nigeria Limited v. Chief Tigbara Edamkue & ors [2009] 7 MJSC (Pt. 1) 194, Alhaji Chief Otapo & ors v. Chief Sunmonu & ors [1987] 2 NWLR (Pt. 58) 603 and Busari v. Oseni [1992] 4 NWLR (Pt. 237) 557. Regarding issue 1, the claimants referred to the Supreme Court case of Edjrode v. Ikine [2001] 18 NWLR (Pt. 745) 446 which defined reasonable cause of action as the entire set of facts or circumstances giving rise to an enforceable claim. It includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed. Also referred to the Court are Sulgrave Holdings Inc v. Federal Government of Nigeria [2012] 17 NWLR 309 and Emiator v. Nigerian Army [1999] 12 NWLR (Pt. 631) 362. That a cause of action is constituted by the bundle of facts which the law will recognize as giving the plaintiff a right of action. Such facts or combination of fact may consist of two elements, viz: the wrongful act of the defendant which gives the plaintiff his cause of action, and the consequential damage flowing from the wrongful act(s), referring to Akibu v. Oduntan [2000] 13 NWLR (Pt. 685) 446 and Anukwu v. Eze [2012] 11 NWLR 50. That a careful reading of the claimants’ statement of facts reveals that the claimants allege against the defendants the following wrongful acts – 1. That the 2nd defendant unlawfully excluded the claimants’ group from NUP State Council election held on 8th November 2012 and that the election ought to be nullified. 2. That the 1st defendant had unlawfully been carrying on its activities in the name of NUP Teachers Pensioners branch thereby supplanting the rights and interest of the vast majority of Teacher Pensioners in the claimants’ group. 3. That the 2nd defendant had been dealing with and recognizing the wrongful activities of the 1st defendant as if it is a registered trade union. 4. That in view of the communiqué issued and signed by the claimants, the 1st defendant and 2nd defendant, the NUP Teachers Pensioners branch would come into existence after the fusion of the members of the claimants’ group and those of the 1st defendant. 5. That it is to the NUP Teacher Pensioners branch which would be so formed that the 2nd defendant would remit the 25% branch share of check-off dues. 6. That the 1st and 2nd defendants be compelled to give accounts of check-off dues paid to them by the 3rd defendant because a large part of same were deducted from the pension of the claimants who have been deprived and are still being deprived of participation in the running their pension affairs. 7. That since the 2nd defendant has failed to effect the fusion/merger of the claimants’ group with the members of the 1st defendant to form the NUP Teachers Pensioners branch, the 3rd defendant should be restrained from further releasing check-off dues to the 2nd defendant pending the formation of the NUP Teachers Pensioners branch To the claimants, the issues forming the basis of this action arose after the consent judgment was entered in the High Court in Suit No. ID/853/2008. That it was expected that the 2nd defendant would effectively achieve the merger of both members of the 1st defendant and claimants’ group to form the NUP Teachers Pensioners branch. The 2nd defendant was under a duty to organize an all inclusive election to put executive officers in place for the NUP Teachers Pensioners branch. The 2nd defendant woefully failed to carry out these obligations but went ahead to treat the 1st defendant alone as the NUP Teachers Pensioners branch to the total exclusion of the claimants. The 2nd defendant conducted election into NUP State council on 8th November 2012 to the total exclusion of the claimants thereby de-enfranchising them. The claimants, therefore, by this suit seek a correction of these irregularities in the affairs of Teachers Pensioners in Lagos State under the Nigeria Union of Pensioners. This present action accordingly relates to the exercise of powers vested in the NUP State Council which has been releasing check-off dues to the 1st defendant wrongfully. That the crux of this suit is the exclusion of the claimants by the 2nd defendant from the running of the affairs of Teacher Pensioners in Lagos State for no just cause. The claimants’ check-off dues are being deducted from source by the 3rd defendant and remitted to the 2nd defendant but the claimants are deliberately shut out of the activities of the umbrella body i.e. the defendant. The claimants are bona fide members of the NUP and their membership is not in dispute in any way. They are over 4,200 members whose union dues were being deducted from their pension every month as financial members of the NUP. Their status entitles them to maintain this action to protect and assert their rights as bona fide members of the NUP. The claimants accordingly submitted that all the reliefs being claimed by them in this suit are directed towards the protection and exercise of their membership rights. That they in paragraphs 30 to 50 of the statement of facts set out facts as to the manipulation of the 2nd defendant by the 1st defendant and the eventually collusion between them to continually deny the claimants of their rights and privileges of membership of the NUP in Lagos State. The claimants then submitted that they have a reasonable cause of action to institute this action. That without the intervention of the Court, they will continue to suffer deprivation of their rights as bona fide members of the Nigeria Union of Pensioners. On issue 2 i.e. whether or not this suit is a re-litigation of Suit No. ID/853/2008 and, therefore, an abuse of court process, the claimants submitted that the facts and claims of the 1st defendant as claimant in Suit No. ID/853/2008 relate to the decision of the 3rd defendant to stop the release of check-off dues to the 1st defendant. All the terms of settlement adopted as the judgment of the Court revolve around the check-off dues from the Ministry of Establishment, Training and Pensions i.e. the 3rd defendant to the NUP State Council i.e. the 2nd defendant as well as the branch share of 25% which was to be remitted by the 2nd defendant to the NUP Teacher Pensioner branch which was to be constituted after the judgment was delivered. That the cause of action in Suit No. ID/853/2008 is clearly distinguishable from the cause of action giving rise to this suit. The claimants went on that the issue of disenfranchisement of the claimants from NUP State Council election is a distinct issue which arose after the judgment in Suit No. ID/853/2008 was delivered. Also the issue of failure of the 2nd defendant to unify the claimants group and the 1st defendant to form NUP Teachers Pensioners branch so that the 25% of all check-off dues would be remitted to it. The disbursement of check-off dues by the 2nd defendant to the 1st defendant alone to the exclusion of the claimants, in spite of their majority status, is central to the present suit. Finally, another distinct issue is the claimants’ demand for a detailed account of the administration of the check-off dues wrongfully disbursed to the 1st defendant by the 2nd defendant subsequent to the judgment delivered in Suit No. ID/853/2008 i.e. from 2010 till date. That in the determination of whether this suit is a re-litigation of Suit No. ID/853/2008, this Court is obligated to compare the reliefs sought in the present case with the earlier concluded one in the High Court of Lagos State. The claimants then invited the Court to compare the claims in both suits and come to a decision thereon, submitting that the two cases are not similar because the subject matters are not the same. That whilst the subject matter of Suit No ID/853/2008 was the withholding of check-off dues by the Ministry of Establishment, Training and Pensions, Lagos State from the 1st defendant, the subject matter of this present suit is on the continuous disenfranchisement of the claimants in administration and participation in the running of the affairs of NUP Teacher Pensioner body at the local and State levels. That the claimants are aggrieved by the role being played by the 2nd defendant in the comatose state of the local branch which the 1st defendant’s group is consistently preventing from being formed. To the claimants, the constitution of the local branch of Teacher Pensioners in the NUP in Lagos State was meant to be achieved by the fusion/merger of the claimants group and the members of the defendant to form the Nigeria Union of Pensioners Teachers Pensioners branch. Rather than achieve the coming together of the fusion of the two groups, the 2nd defendant aligned itself with the 1st defendant alone and continuously released check-off dues to the 1st defendant alone to the detriment of the interest of the claimants group. That before the Court can arrive at a decision that a suit is a re-litigation of an earlier suit, the following must be present – 1. The parties must be the same. 2. The set of facts presented by the two cases must be similar in all material respect. 3. There must have been a definite decision on the issues of facts raised by the parties in the earlier suit. 4. The reliefs sought in the earlier case must have been adjudicated upon by the Court on a final basis. The claimants continued that the parties in the two suits are not the same. The present claimants were not a party in Suit No. ID/853/2008. The claimants are some of the Teacher Pensioners under the administration of Teachers Establishment and Training Office in the Ministry of Establishment, Training and Pensions, Lagos State. The suit at the High Court of Lagos State was instituted by the 1st defendant. On the issue of the facts of either suit, the facts placed before this Court are clearly different and distinct from those in Suit No. ID/853/2008. That the activities of the 1st and 2nd defendants which form the basis of the present suit were carried out after the judgment in Suit No. ID/853/2008 was delivered. In fact, the wrongful acts of the 1st and 2nd defendants are of a continuous nature even till now. In other words unless this Court assume jurisdiction on this suit, the claimants’ rights will continue to be trampled upon endlessly without any relief. The claimants also submitted that the Lagos State High Court in functus officio regarding Suit No. ID/853/2008 and cannot entertain any further proceedings on that suit. Finally, the claimants submitted that this Court is the Court empowered by law to entertain this suit by virtue of the National Industrial Court (NIC) Act of 2006 in its sections 7(1), 11 and 12 thereof. The claimants then commended to the Court the following cases in support of their contention that the present suit is a not a re-litigation of Suit No. ID/853//2008 decided by the Lagos State High Court in 2010. That for the defendants to raise the doctrine of estoppel per rem judicata or issue estoppel to preclude the claimants herein from bringing this suit they must satisfy the Court that the following conditions have been met – a) That the same question was decided in both proceedings; b) That the judicial decision said to create the estoppel was final; and c) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised. The Court was then referred to Taiye Oshobola v. Alhaji Surakatu Amida & ors Vol. 2 MJSC (Pt. 1) page 96 (incomplete citation), Nkanu & ors v. Onun & ors [1997] 5 SC 13, Iyayi v. Eyigebe [1987] 3 NWLR (Pt. 61) 523 and Fadiora v. Gbadebo [1978] 3 SC 219. The claimants in conclusion urged the Court to assume jurisdiction over this suit and allow the claimants vent their grievances legally. 1ST AND 2ND DEFENDANTS’ SUBMISSIONS The 1st and 2nd defendants in their written address opposed the competence of this suit and framed a sole issue for consideration: whether the present suit (i.e. Suit No: NICN/LA/20/2014) is not a re-litigation of Suit No: ID/853/2008 which has been decided by the Lagos State High Court. To them, when a Court of competent jurisdiction has had the opportunity to resolve an issue put before it by parties for determination, the Court as well as Courts of co-ordinate jurisdiction are said to be functus officio of that issue or matter. That in a nut-shell is the origin of that much hallowed legal concept of res judicata. That in Abubakar v B.O. & A. P. Ltd [2007] 18 NWLR (Pt. 1106) 319 at 373, Tobi JSC defined ‘res judicata’ and the circumstances when it arises as follows – The expression, res judicata, means “a thing adjudicated”. It came out from the original expression, res judicata. The aim of the principle is to put to an end, a matter that was previously litigated by a competent Court of law. It is to avoid duplicity or multiplicity of litigation. The principle is designed to save so much litigation. The essence of the principle is that a previous judgment or a judgment previously handed down will constitute a bar to a present action if certain conditions are satisfied. The conditions are as follows: 1. The parties in the previous action and the present or current action must be the same. 2. The subject-matter must be the same. 3. The issue must be the same. 4. The Court that decided the previous action must be a Court of competent jurisdiction. The essence of the principle is that there must be an end to litigation and a man should not be troubled twice for one and the same cause. See also Udo v. Obot [1989] 1 NWLR (Pt. 95) 59 at 71. In the light of the above reproduced decision of the Supreme Court, the 1st and 2nd defendants went on to apply the parameters set out above to the suit under discussion vis-à-vis the previous suit in the High Court of Lagos State with a view to ascertaining whether or not the present suit is caught up by the doctrine of res judicata. (a) Parties in both Suits In Suit No. ID/853/2008, the parties therein shows that the present 1st defendant herein was the claimant thereat. Suffice it to state that both the present claimants and the 1st defendant are in tandem with this point, referring to paragraph 2 of the claimants’ written address on the competence of this suit dated July 21, 2014. Conversely, the present defendants i.e. 2nd, 3rd and 4th were the 1st, 2nd and 3rd defendants respectively in the decided suit before the High Court of Lagos State. Suffice it also to state here that the present claimants before this Court were members of the 3rd defendant i.e. the Nigeria Union of Pensioners, Lagos State Council before the High Court of Lagos State. Incidentally the said 3rd defendant is now the 2nd defendant herein. This much the claimants attested to copiously in their statement of facts but more especially in paragraph 1 of the said statement of facts when they categorically stated that: “The Claimants are members of the Nigeria Union of Pensioners, Lagos State Branch…” This averment was also repeated by the claimants in the second paragraph of their written address on the competence of this suit dated July 21, 2014 but filed on the 6th August 2014. That based on the foregoing, it is therefore beyond argument that the claimants herein were the 3rd defendant in Suit No: ID/853/2008 already decided by the High Court of Lagos State. b) Subject-matter of both Suits According to the Black’s Law Dictionary, the phrase “subject-matter” implies: “The thing in controversy or the matter spoken or written about”. In the same vein, Webster’s New World Law Dictionary, 2010 defines subject matter as: “Whatever is in dispute: the actual cause of the law suit; the issue about which a right or obligation has been asserted or decided”. That going by these legal definitions, the subject-matter of the former suit involving the present parties i.e. Suit No: ID/853/2008 would be the prayers as contained in the statement of claim and which were granted by that Court. For ease of reference, they are – a) A declaration that its members are constitutionally entitled to associate freely and belong to any group or form any association of their choice. b) A declaration that the claimant is an association registered under the relevant laws in Nigeria as the official representatives to Teacher Pensioners in Lagos State and therefore entitled to check-off dues from its members. c) An order compelling the 1st defendant to recognize the claimant’s accredited representatives. d) An order of perpetual injunction restraining the 3rd defendant from further collecting the check-off dues belonging to the claimant. e) An order compelling the 3rd defendant to account to the claimant of all monies collected as check-off dues from 4/10/2006. Similarly, that in the present Suit i.e. NICN/LA/20/2014, the subject-matter as can be gleaned from the totality of the averments and reliefs sought are the claims that the 1st defendant the then claimant before the High Court of Lagos State who has been given the legal and constitutional backing to freely associate should not be so recognized by this Court. Again for ease of reference, and at the risk of repetition, the reliefs sought by the present claimants are – a) A declaration that the 1st defendant is not a trade union and cannot unionize under the Trade Unions Act. b) A declaration that the exclusion of the claimants from the NUP State Council election held on 8th November 2012 was wrongful, unlawful, illegal and amount to an infringement of the constitutional rights of the claimants. c) An order nullifying the NUP State Council election held on 8th November 2012. d) An order restraining the 1st defendant from carrying on its activities in the name of NUP Teachers Pensioners Branch in Lagos State. e) A declaration that all the activities of the 1st defendant carried out in the name of NUP Teachers Pensioners branch were fraudulent misrepresentations and as such null and void ab initio. f) An order compelling the 1st defendant to give full account of all disbursements,/payments of check-off dues made to it by the 2nd defendant since 1st November 2010 till date. g) An order compelling the 2nd defendant to give account of all check-off dues paid to it by 3rd defendant since 1st November 2010 till date. h) An order restraining the 3rd defendant from further disbursing/paying or releasing any part of the check-off dues of claimants pensioners to the 1st defendant in any manner howsoever. i) Perpetual injunction restraining the 1st defendant from carrying on as a trade union in Lagos State. j) An order declaring as wrongful, illegal, unconstitutional, null and void all acts and deeds of the 2nd defendant recognizing and dealing with the 1st defendant as a trade union. k) General damages against the 1st and 2nd defendants in the sum of N2 million for the infraction of the constitutional rights of the claimants. To the 1st and 2nd defendants, these are issues which have been deliberated upon and resolved by a Court of competent jurisdiction which incidentally is a Court of coordinate jurisdiction with this Court, referring to “section 1(3)(b) of the National Industrial Court (NIC) Act 2010 Cap. 314 LFN”. Thus, that there is no how that this Court would adjudicate on these issues without touching on the judgment of the High Court of Lagos State which is a sister Court, no matter how ingenious. That to do that would mean sitting on appeal over or reviewing the judgment of a court of coordinate jurisdiction, referring to LSDPC v. Adeyemi-Bero [2005] All FWLR (Pt. 252) 488 and Waghoreghore v. Agenghen [1974] 1 SC (page not supplied). That the claimants have argued and tried to make heavy weather that the present suit is materially different from the already decided suit by the High Court of Lagos State in that it seeks to curtail the continuous disenfranchisement of the claimants. That they seem to have, or chosen to forget, the fact that they equally requested of this Court to stop the 1st defendant from parading itself as an association as well as stop the 2nd defendant from further giving the 1st defendant its due of the check-off dues as ordered by the High Court of Lagos State. The 1st and 2nd defendants then asked: How much more can a suit be materially the same with a previous one? That in Madukolu v. Nkemdilim [1962] ANLR 583, the Supreme Court was of the position that: “Where a competent Court has determined an issue and entered judgment thereon, neither party to the proceedings may re-litigate that issue by formulating a fresh claim, since the matter is res judicata.” That hanging on to an alleged disenfranchisement is a devious attempt by the claimants to re-litigate an already decided matter, urging the Court to so hold. The 1st and 2nd defendants then continued that with the conclusion on the discussion of the subject-matter of the suit under reference, they have also indirectly touched on the question of the issue(s) agitated and resolved by the earlier case i.e. ID/853/2008 vis-à-vis the present case. This is bearing in mind that the legal definition of the phrase, “subject-matter”, as reproduced above incorporates the word, “issue”. Besides, the Black’s Law Dictionary (9th Edition) defines an issue as: “A point in dispute between two or more parties”. That in both suits, the issue or question of check-off dues is pivotal. In the same vein, that there is no gainsaying the fact that the High Court of Lagos State which heard and determined Suit No: ID/853/2008 and whose decision formed the basis of the judgment now sought to be re-litigated on by the claimants herein is a Court of competent jurisdiction. That in the locus classicus case of Madukolu v. Nkemdilim (supra) the apex Court held that: “A Court is competent when (1) it is properly constituted with respect to the number and qualification of its members, (2) the subject-matter of the action is within its jurisdiction; (3) the action is initiated by due process of law; and (4) any condition precedent to the exercise of its jurisdiction has been fulfilled”. That it is indubitable that the High Court of Lagos State had all these features to confer competence on it. The sum total of this argument is that this Court lacks the requisite competence to hear the claimants’ suit based on the fact that the subject-matter, issues canvassed by the claimants in the suit at hand are the same (just as the parties) with the ones already determined in a previous case between the same parties in Suit No: ID/853/2008. That the law is trite that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a Court of competent jurisdiction, then neither party nor his privy or agent is allowed to re-litigate that or those decided issues all over again in another action between the same parties or their privies on the same issues, referring to Adone v. Ike-budu [2011] 14 NWLR (Pt. 733) 385 and Oshodi v. Eyifunmi [2000] 7 SC (Pt. 11) 145 and urging the Court to so hold. In conclusion, the 1st and 2nd defendants urged the Court to resolve the lone issue canvassed in their written argument in their favour and dismiss the claimants’ suit with cost. 3RD AND 4TH DEFENDANTS’ SUBMISSIONS To the 3rd and 4th defendants, from the reliefs of the claimant it is obvious that the crux of their claim before this Court is the check-off dues while the other reliefs are ancillary; as such the instant reliefs are similar to the already listed reliefs sought in Suit No. ID/853/2008. Based on the contention of the claimants that the only document that this Court can look into in determining the competence of this suit is the claimants’ originating process, the 3rd and 4th defendants referred the Court to paragraphs 18 – 27 and 30 – 31 of the claimants’ statement of facts dated 22nd January 20114 wherein the claimants pleaded amongst others that it did not only participate in the Terms of Settlement which was adopted as the judgment of the High Court of Lagos State in Suit No. ID/853/2008 but was also a signatory to the same and then submitted that this is an admission against interest, citing Seismograph Nigeria Ltd v. Chief Efuaye [1976] 7 – 10 SC 135 at 146. That the 1st claimant, Mr. T. G. Aderemi, although referred to himself as Revd. T. G. Aderemi in the said Terms of Settlement (apparently for obvious reasons), was the representative of the claimants in the settlement Communiqué that led to the said judgment in Suit No. ID/853/2008. That the 1st claimant’s witness statement on oath filed before this Court is in line with the evidence already before this Court, having been elevated above the status of a pleading, citing Nichizawa v. Jehwani [1984] 12 SC 235. The 3rd and 4th defendants proceeded to reproduce paragraphs 10 – 15 of the 1st claimant’s witness statement on oath deposed to, on the 23rd January 2013. That from these paragraphs before the Court, the claimants’ witness has not only admitted that the reliefs being sought herein had already been granted by the High Court of Lagos State in Suit No. ID/853/2008 but that the claimant fully participated in the said suit and was a signatory to the Terms of Settlement adopted as judgment in the said suit. To the 3rd and 4th defendants, the question then is: can a person who is not a party to a proceeding execute a Terms of Settlement in the same proceeding? They then submitted that the claimants are only trying to be smart by half and only want to mislead this Court in order to achieve their selfish aim. Consequently, that the claimants are estopped in law from commencing this suit, citing Adebayo v. Babalola [1995] 7 NWLR (Pt. 408) 383 at 405, where the Supreme Court per Onu JSC held as follows: A party is precluded from contending in perpetuity any precise point which having been once distinctively put in issue has been properly determined against him. And even if the objects of the first and second actions are different (as in this case), the finding on a matter which came directly (not collaterally or incidentally vide Spans v. IRC [1970] 3 All ER 295 at 301; [1970] 1 WLR 1173 at 1187) in issue in the first action, provided it is embodied in a judicial decision that is final (so also in this case) is conclusive in a second action between the same parties and privies. Also referred is Olalekan v. Wema Bank Plc [2006] 13 NWLR (Pt. 998) 617 at 25. The 3rd and 4th defendants continued that the claimants’ witness had also stated in paragraph 15 of his statement on oath that the 1st defendant continues to disregard the judgment of the High Court of Lagos State thus confirming the subsistence of the said judgment as having determined the issues between the parties; as such the claimant is by this suit praying this Court to re-litigate on issues which had already been determined by the High Court of Lagos State (a court of coordinate jurisdiction with this Court) and in which the claimants duly participated as admitted by the claimants’ witness on oath. That the only remedy available to the claimants if they were not satisfied with the consent judgment of the High Court of Lagos State is to exercise their right of appeal under section 240 of the 1999 Constitution. Furthermore, that the claimants by filing this suit are nothing but professional litigants who have abused their constitutional right of access to Court as guaranteed under section 36 of the 1999 Constitution, referring to Senator Adesanya v. President of Nigeria [1981] 12 NSCC 146 at 179, where Uwais, JSC (as he then was) opined thus – It is of paramount importance and indeed most desirable to encourage citizens to come to court in order to have the constitution interpreted. However meddlesome interlopers, professional litigants or the likes should not be encouraged to sue in matters that do not directly concern them. In my view, to do so is to open the floodgate to frivolous and vexatious proceedings. I believe that such latitude is capable of creating undesirable state of affairs. In conclusion, citing Madukolu v. Nkemdilim [1962] 1 All NLR (Pt. 4) 557, the 3rd and 4th defendants urged the Court to strike out this suit with cost in favour of the defendants. The claimants did not file any reply on points of law. COURT’S DECISION I heard learned counsel in the matter and considered all the processes filed. The issue before the Court is whether given the enrolled order of a consent judgment by Hon. Justice J. E. Oyefeso of the Lagos State High Court in Suit No. ID/853/2008, this Court has the competence of assuming jurisdiction over the instant case. The parties in Suit No: ID/853/2008 are: Registered Trustees of Teachers Pensioners Association of Nigeria (TEPAN) who is the claimant, and The Ministry of Establishment, Training and Pension Lagos State, Attorney-General of Lagos State and Nigerian Union of Pensioners Lagos State Council who are the defendants. The claimants in the instant case are members of the 3rd defendant in Suit No. ID/853/2008; as such they are one and the same. The 1st defendant in the instant case is the claimant in Suit No. ID/853/2008. The 2nd defendant in the instant case is the 3rd defendant in Suit No. ID/853/2008. The 3rd defendant in the instant case is the 1st defendant in Suit No. ID/853/2008. And the 4th defendant in the instant case is the 2nd defendant in Suit No. ID/853/2008. Given all this, I am satisfied that the parties in the instant case and the parties in Suit No. ID/853/2008 are one and the same; and I so find and hold. By the enrolled order dated 1st November 2010, the Court made the following orders – 1. That the 1st defendant recognizes the right of members of the claimants to freely associate and belong to any group or form any association of their choice as constitutionally guaranteed. 2. That the claimant recognizes the legal position of the 3rd defendant as the only body/union to unionize all pensioners, retired teachers inclusive, and as well as collect all check-off dues relating to all pensioners in Lagos State. 3. That the 1st defendant shall pay to the 3rd defendant all the arrears of check-off dues withheld in respect of Lagos State Teachers Pensioners. 4. That the 1st defendant shall henceforth continue to remit all the Lagos State Teachers pensioners check-off dues to the 3rd defendant. In this regard, all cheques for check-off dues are to be issued in favour of “Nigeria Union of Pensioners, Lagos State Council”. 5. That the 3rd defendant shall henceforth remit 25% of all check-off dues collected in respect of Lagos State Teachers Pensioners Branch, to which the claimant belonged, as Branch share. 6. That the 3rd defendant shall also pay the said 25% Branch share from the withheld check-off dues upon its being released by the 1st defendant to the 3rd defendant. 7. That the respective claims and counterclaim of the parties relating to account of previous check-off dues collected be and is hereby dropped and discountenanced. 8. That each of the parties shall bear its own respective cost of this action. Now at the risk of repetition, the claimants’ reliefs in the instant case are – (a) A declaration that the 1st defendant is not a trade union and cannot unionize under the Trade Unions Act. (b) A declaration that the exclusion of the claimants from the NUP State Council election held on 8th November 2012 was wrongful, unlawful, illegal and amounts to an infringement of the constitutional rights of the claimants. (c) An order nullifying the NUP State Council election held on 8th November 2012. (d) An order restraining the 1st defendant from carrying on its activities in the name of NUP Teachers Pensioners Branch in Lagos State. (e) A declaration that all the activities of the 1st defendant carried out in the name of NUP Teachers Pensioners branch were fraudulent misrepresentations and as such null and void ab initio. (f) An order compelling the 1st defendant to give full account of all disbursements/payments of check-off dues made to it by the 2nd defendant since 1st November 2010 till date and remit same unto the 2nd defendant’s coffers. (g) An order compelling the 2nd defendant to give account of all check-off dues paid to it by 3rd defendant since 1st November 2010 till date. (h) An order restraining the 3rd defendant from disbursing /paying or releasing any part of the check-off dues of the claimants to the 1st defendant in any manner howsoever. (i) Perpetual injunction restraining the 1st defendant from carrying on as a trade union in Lagos State. (j) An order declaring as wrongful, unlawful, illegal, unconstitutional, null and void, all acts and deeds of the 2nd defendant recognizing and dealing with the 1st defendant as a trade union. (k) General damages against the 1st and 2nd defendants in the sum of N2 million for the infraction of the constitutional rights of the claimants. Except for reliefs (b) and (c) dealing with NUP State Council election, all the other reliefs prayed for by the claimants in the instant case are covered by the orders made in Suit No. ID/853/2008 i.e. they deal with payment, remittance and account of check-off dues. Order 1 in Suit No. ID/853/2008 recognizes the right of the claimant therein (1st defendant in the instant case) to associate freely. Reliefs (a), (d), (e), (i) and (j) all touch on the freedom to associate freely. I, however, note that order 1 in Suit No. ID/853/2008 only talks of freedom to associate in general terms, not in the specific term of trade unionism. Orders 2, 3, 4, 5 and 6 in Suit No. ID/853/2008 all talk of payment and remittance of check-off dues, which is what relief (h) in the instant case talks of. Order 7 talks of account of check-off dues, which is what reliefs (f) and (g) in the instant case are about. The point is that there is no way the instant case will be considered without delving into the merit of the consent judgment given in Suit No. ID/853/2008. What this means, therefore, is that the orders granted in Suit. No. ID/853/2008 are necessarily the prayers that the claimants are seeking in the instant case. The instant case is accordingly an attempt by the claimants to re-litigate issues already entered as consent judgment by all the parties. A similar attempt, this time to re-litigate a Kogi State High Court decision was rebuffed by this Court in Nigeria Union of Teachers (NUT) v. Kogi State Teaching Service Commission & anor unreported Suit No. NIC/34/2007 the ruling of which was delivered on May 20, 2008 on the ground that this Court cannot sit on appeal over the decision of a court of coordinate jurisdiction. This Court under section 7(1)(c)(iii) of the NIC Act 2006 and section 254C(1)(j)(iv) and (v) of the 1999 Constitution, as amended, respectively has jurisdiction over the determination of any question as to the interpretation and application of “the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement”, “any term of settlement of any trade dispute”, and “any trade union dispute or employment dispute as may be recorded in a memorandum of settlement”. The claimants are not in this Court for the interpretation of the terms of settlement enrolled as consent judgment in Suit No. ID/853/2008 but have filed a new suit seeking indirectly to re-litigate issues that a court of coordinate and competent jurisdiction has resolved. If the claimants have any problem with the enrolled orders entered in Suit No. ID/853/2008, their recourse is to the Court of Appeal, not this Court. That reliefs (b) and (c) dealing with NUP State Council election were brought into the fray in the instant case is nothing but to give the case a semblance of independence and separateness from Suit No. ID/853/2008 just so that this Court may be seen to be vested with immediate jurisdiction. On the whole, I am satisfied that the instant case is an attempt at re-litigating issues already settled in Suit No. ID/853/2008. The instant case, as filed, is accordingly incompetent and so is hereby struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD