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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip — Presiding Judge Hon. Justice F.I Kola Olalere — Judge Hon. Justice O.A Obaseki-Osaghae — Judge DATED 9th June, 2010 SUIT No. NlC/LA/28/2009 BETWEEN 1. Road Transport Employers Association of Nigeria (RTEAN) Ekiti Branch 2. Mr. Rotimi Joseph – Chairman, (RTEAN) Ekiti Branch 3. Mr. Sesan Ogunlade – Secretary, (RTEAN) Ekiti Branch - claimants AND 1. National union of Road Transport Workers(NURTW) Ekiti Council 2. Mr. Omolafe Aderiye – Chairman (NURTW) Ekiti Council 3. Governor of Ekiti State 4. Attorney General, Ekiti State 5. Commissioner of Police, Ekiti State 6. Director of State Security Service (SSS), Ekiti State — Defendants REPRESENTATION: Fred Agbaje, and with him is Kennedy Osunwa, for the clamants Chief A.A Adeniyi, and with him is M.A Umar, for the 1st and 2nd defendants Kasoki Olekanma for the 3rd and 4th defendants RULING The claimants filed a complaint against the respondents on the 2nd October 2009 seeking the following: — 1. A declaration that by virtue/and or in line with the Court of Appeal judgment in Appeal No. CA/B/21/2003 between the parties herein inclusive of their predecessors/successors, which judgment was delivered on Friday the 7th day of May, 2004, the claimants are entitled to continue their constitutional operations/activities in all the motor parks in Ekiti State in line with the relevant laws and constitution of the claimants. 2. An order of perpetual injunction restraining the defendants, their agents/privies from further preventing or harassing members of the claimants Idiom operating iii all the motor parks in Ekiti State and its environs particularly Akure route. The 1st and 2nd defendants reacted by entering appearance and filing a notice of preliminary objection dated 2nd November 2009 but filed on the 11th November 2009 upon the following grounds: 1) The subject matter of the dispute between the claimants and the 1st and 2nd defendants was ventilated in Suit No: FHC/AK/CS/84/99 wherein the 1st and 2nd defendant sought the interpretation of Decree No. 4 of 1996 a fotiori the jurisdictional scope of 1st I and 2nd defendants’ operation. (ii) The matter which came up for determination at the Federal High Court, Akure was appealed to the Court of Appeal, Benin, which also had proceeded on appeal to the Supreme Court in Appeal No. SC/22/2005 which had been listed for 7th June, 2010 in Abuja. (iii) By virtue of section 11(2) National Industrial Court Act, 2006, the subject matter of the dispute submitted before this Court having been decided by the Federal High Court and the Court of Appeal, the said issue cannot be reopened or re—litigated upon - (iv) The matter submitted for determination by the claimants is not a trade dispute contemplated or covered by section 2 of the Trade Disputes Act (TDA) Cap. 18 Laws of the Federation of Nigeria Volume 15. The notice of preliminary objection is supported by an 11—paragraphed affidavit sworn to by Raphael Adewunmi a litigation officer. By the preliminary objection, the 1st and 2nd defendants are praying for an order dismissing the claimants’ claim in its entirety for want of jurisdiction The 3rd and 4th defendants entered a conditional appearance while the 5th and 6th defendants have not been represented by counsel nor taken any part in the proceedings, Parties agreed to file written addresses. The 1st and 2nd defendants’ written address is dated 28th January 2010 and filed on the same day. The 3rd and 4th defendants’ written address is dated l5th March 2010 but filed on the 17th March 2010. The claimants filed an 11 -paragraphed counter-affidavit to the preliminary objection on the 9th February 2010 and their written address dated 8th February 2010 was also filed on the 9th February 2010. The 1st and 2nd defendants also filed a reply on points of law which is dated 26th February 2010 but filed on 5th March 2010. The 1st and 2nd defendants’ counsel formally adopted the written address and relied on the press filed. He informed the court that he wished to cite the following two additional authorities not contained in the written address in support of their contention that this action is an abuse of judicial process. The additional cases are: National Inland Waterways Authority v. Standard Trust Bank Plc [2008] 2 NWLR (Pt. 1072) 487 at 500 501 and Ojo v. A.G Oyo State [2008] 15 NWLR (Pt. 1110) 309 at 328 —333. Learned counsel raised two issues for determination as follows: (1) Whether this Court has the jurisdiction to hear and determine the case of the claimant when the issue of whether the Federal High Court or the National Industrial Court has jurisdiction to hear the dispute between the parties is on appeal before the Supreme Court. (2) Whether it is not an abuse of court process for the claimant to file this case before this Court when an appeal on the same issue is before the Supreme (‘nun On issue 1, learned counsel submitted that the subject matter of the dispute in this suit, which is whether or not the claimants can carry passengers for reasonable consideration, is the same issue in Road Transport Employers Association of Nigeria (RTEAN) Ekiti State v. National Union of Road Transport Workers (NURTW) Ekiti State unreported Suit No. FHC/AK/CS/84/99 which was determined in favour of the present 1st and 2nd defendants by the Federal High Court sitting at Akure. He stated that the claimants herein who were dissatisfied with the judgment of the Federal High Court appealed to the Court of Appeal in Suit No. CA/13/21/2003 on whether or not the Federal High Court has Jurisdiction to entertain the matter and that the appeal was decided in favour of the present claimants. That on being dissatisfied with the Court of Appeal judgment, the 1st and 2nd defendants herein appealed to the Supreme Court. Counsel referred to paragraph 8 of the all affidavit in support of the notice of preliminary objection where it deposed to the fact that the issue of whether the Federal High Court rightly entertained the matter or whether it is a matter that falls within the jurisdiction of the National Industrial Court has been fixed for hearing by the Supreme Court on June 7, 2010. Also exhibited is the hearing notice issued by the Supreme Court marked exhibit NURTW 1. The 1st and 2nd defendants’ counsel further submitted that this court lacks the jurisdiction to hear this matter as the same issue has been litigated upon by the parties both at the Federal High Court and the Court of Appeal. That final appeal in the matter is pending before the Supreme Court and it would, therefore, be premature for this court to act in one way or the other. He argued that until the decision of the Supreme Court on which court has jurisdiction to entertain the matter is determined this court lacks the jurisdiction to hear the case, citing Gabriel Madukolu & ors v. Johnson Nkemdilim [1962] ANLR 58!. On issue 2, learned counsel submitted that the action of the claimants in this case is an abuse of court process because they are aware of the matter at the Supreme Court and they are also aware of the date fixed for its hearing. He cited Agwashim v. Ojichie [2004] 4 SC (Pt. 11) 160 at 164 - 165 and further submitted that this court lacks the jurisdiction to entertain this suit until the decision of the Supreme Court is given and that if there is the need for an injunction to preserve the peace in the motor parks in Ekiti State, the Supreme Court is competent to grant same either before the date of the substantive hearing or during the hearing on the 7th June 2010. Supporting the preliminary objection, learned counsel to the 3rd and 4th defendants adopted their written address in which they raised three issues for determination as 111 lows: i ) Whether in law and in fact there is an appeal at the Supreme Court respecting (sic) the subject matter of this suit. (ii) Whether the outcome of’ the Supreme Court decision wil1 affect the subject matter of this suit. iii) Whether’ there is an abuse of court process on the part of’ the claimant in commencing this suit. On issue i, counsel referred to paragraphs 8 of the 1st and 2nd defendants affidavit in support of the preliminary objection and stated that even though this deposition was challenged by the claimants in paragraphs 6, 7, 8, 9 and 10 of the counter affidavit, it is impliedly supported by the claimants contention that the 1st defendant’s appeal at the Supreme Court is not diligently prosecuted by the defendant. Learned counsel argued that these facts show that there is a consensus that the alleged subject matter of this suit had actually been ventilated in Appeal No: SC 22/2005 pending at the Supreme Court. That the courts have repeatedly held that where a court has actual or constructive notice that an appeal has been lodged in respect of a matter, it is under a duty to take suitable steps to prevent the appeal from being rendered nugatory. He referred to United Spinners v. Chattered Bank [2001] 7 SC (Pt. 11) 171 at 184 line 10 — 25 and Stevr Nig. Ltd v. De Luke M. Ent. Ltd [1999] 12 NWLR (Pt. 631) 458 at 466 para G and posed the folllowing question: is this court aware that the subject matter of this instant suit it is being asked to deliberate on is ventilated as alleged by the 1st and 2nd defendants in Appeal No. SC 22/2005 at the Supreme Court? Counsel answered the question in the affirmative and argued that the onus shifts to the claimants to show that there is no substantive appeal at the Supreme alert. He urged the court not to take steps that will render the appeal nugatory. On issue ii, counsel argued that if after hearing the appeal the Supreme Court holds that the federal High Court Akure, Ondo State rightly assumed jurisdiction to hear and determine the suit, this court will not be able to proceed to hear and determine the subject matter, as the case would be res judicata; therefore, the court should at this stage decline jurisdiction, He cited Obikpong v. Offiong [2000) 13 NWLR (Pt. 648) 324 at 333 paras F - G and argued further that if the Supreme Court agrees with the Court of’ Appeal that the Federal High Court lacks the jurisdiction to entertain the subject matter of the suit, only then and not earlier that this court can assume jurisdiction. Counsel submitted that this suit is premature having been instituted during the pendency of the appeal in the Supreme Court. On issue iii, counsel argued that from the depositions in paragraphs 3 to 15 of the claimants’ affidavit in support of their motion on notice bra interlocutory injunction dated and filed 15th October 2009, it is quite obvious that the claimants only want this court to deliberate on what they allegedly agreed has been statutorily and “judicially favoured and guaranteed’’ which is that the claimants and the St and 2IId defendants “purportedly” have to operate in all motor parks in Ekiti State and its environs. Counsel argued that if The two parties’ rights to operate in all motor parks in Ekiti State have been “judicially favoured and guaranteed” as alleged, then it clearly amounts to an abuse of court process the claimants to commence this suit whose sole aim is to harass, irritate, annoy the defendants and interfere with the administration of justice, He cited Ogoejeofo V. Ogoejeofo [2006] 3 NWLR (Pt. 966) 205 at 222 — 223 paras A — G and Dumez (Nig) Pc v. UBA Plc [2006] 14 NWLR (Pt. 1000) 515 at 526 paras D — G and 527 paras l l and urged the court to dismiss this suit as this court lacks the competence at this stage assume jurisdiction. In reply to the defendants, learned counsel to the claimants adopted in its entirety the counter—affidavit as well as the written address of the claimants, lie submitted that no and better affidavit was filed by the defendants to controvert the facts alleged in counter—affidavit, He referred to paragraphs 5, 6, 8 & 9 of the counter—affidavit and referred to the following authorities not contained in the claimants’ written address which sought to include: section 287(2) of the 1999 Constitution on the bindingness of Court Appeal decisions on lower courts, Aritho v. Aiyeleau [1993] 3 NWLR (Pt. 280) 126 at 130 on abuse of court process and Abdul-Raheem v. Oloruntoba-Oju 12006] 15 NWLR 1003) 581 at 587. The claimants’ counsel began the written address by giving a background of the facts which led to this suit. He stated that the 1st defendant and one Adewole Ojo (JP) commenced Suit No. FHC/AK/CS/84/99 at the Federal High Akure to determine, among other questions, “whether by Decree 4 of’ 1996, the plaintiffs (now defendants in this suit) are the rightful parties to engage in transportation passengers and goods by road at the motor parks at various towns and villages in Ekiti of Nigeria”. ‘that the claimants on becoming aware of this suit applied to he joined and 6 defendants and subsequently filed a notice of preliminary object ion challenging the jurisdiction of the Federal High Court to entertain the suit on grounds that main issue in question was a trade dispute between trade unions which only the National Industrial Court has jurisdiction to hear and determine accordingly. That the Federal High Court overruled the objection and assumed jurisdiction to determine the substantive suit. Counsel further stated that the claimants herein being dissatisfied with said judgment went on appeal, to determine among other reliefs, “whether the lower has jurisdiction to try the matter which is in the main a trade dispute between the 1st claimant and 1st defendant in this suit.” That the Court of Appeal allowed their appeal declared the trial and judgment of the Federal High Court null and void and of no effect. Learned counsel then stated that the defendants have been fomenting trouble against the claimants claiming to have exclusive right to engage in transportation of’ passengers and In Ekiti State whereas no court of competent jurisdiction had made any order or pronouncement to that cued and this is what has given rise to the present suit. He framed two issues for determination as follows: a) “Whether this court has jurisdiction to hear and determine the case of the claimant when the issue of whether the Federal High Court (or) the National Industrial Court has jurisdiction to hear and determine the dispute”. (b) Whether the claimants’ suit constitutes an abuse of court process due to a purported appeal before the Supreme Court of Nigeria. In arguing issue (a), counsel submitted that jurisdiction has been defined by the Supreme Court in the case of A.G Lagos State v. Dosunmu [1989] 3 NWLR (Pt. III) 553 as “the limits imposed on the powers to a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the person between whom the issues are joined, or to the kind of relief sought.” That the provisions of section 1 A( I ) and (2) of’ Trade Disputes (Amendment) Decree No. 47 oil 992 ousted the jurisdiction of the Federal High Court to hear and determine any trade dispute or any inter or intra—union dispute at first instance, He referred to the definition of trade dispute as contained in section 47 of the TDA (Cap. 432) LFN 1990 and the provisions of section IA (I) of Decree No. 47 of 1992 and submitted that the Decree does not define the words “inter” and “intra” but that the Black’s Law Dictionary defines “inter” as (Latin) among and “intra” as (Latin) within. That from the above definitions any dispute between or among trade unions or within the same trade union shall not be commenced in any court of law from the (late the above provision came into force on 1st January 1998. The further contended that the two parties RTEAN and NURTW being registered trade unions, the Federal High Court Akure had no jurisdiction to hear and determine the said dispute. Learned counsel also referred to section 7(l) of the National Industrial Court Act 2006 and stated that jurisdiction to hear cases dealing with trade disputes is concurred exclusively on the National industrial Court. That Decree 47 of 1992 was applied by the Court of Appeal in NURTW Abuja v. RTEAN Abuja [2001] 14 NWLR (Pt. 733) 313; and the aims and objectives of decree 47 of 1992 and section 7(1) of National Industrial Court Act 2006 are to prevent the proliferation of trade union cases in the light Courts and ensure that only the National Industrial Court has exclusive eights to hear and determine such cases. He cited Udo v. Orthopedic Management Board [1993] 2 NWLR (Pt. 30) 139, NURTW v. Ogbodo [l981] 2 NWLR (Pt. 537) 189 and New Nigeria Bank v. Osoh [2001] 13 NWLR (Pt. 729) 232 at 261 and submitted that pursuant to the judgment of the Court of Appeal nullifying the decisions and entire proceedings of the Federal High Court, the issues in contention between the parties have not been resolved and the plea of estoppels per rem judicator cannot he sustained, He further submitted that the National Industrial Court has jurisdiction to hear and determine the issues in controversy and urged the court to resolve this issue in favour of the claimants in line with the subsisting Court of Appeal decision. In respect of issue (b), learned counsel Submitted that this instant case does not amount to an abuse of court process because of the judgment of the Court of Appeal which is that this case be heard by the National Industrial Court. He referred to Okafor v. A.G Anambra [1991] 6 NWLR (Pt. 200) 659 SC, Saraki v. Kotoye [1992] 9 NWLR. (Pt. 264) 156 SC, Mohammed v. Husseini [1998] 14 NWLR (Pt. 584) 108 SC and Messr. NVSCHEEP v. the MV SARAZ [2000] 12 SC (Pt. 1) 64. Counsel also submitted that the lodging of an appeal does not operate as a stay of’ execution. That the defendants have not shown any proof such as notice of appeal, application for slay of execution, hearing notice or any written brief of argument in support of the appeal neither are they diligent in the prosecution of the said appeal and as such they cannot prevent this court from carrying on its statutory duties in the interest of justice. lie argued that the circumstances of’ the filing of’ this instant case is not one of multiplicity of suits, referring to Registered Trustees of the Living Christ Mission v. Aduba [2002] 2 SC 1 but on compliance with the directives of the Court of Appeal to the effect that the substance of this suit is a matter for the National Industrial Court. The refusal to obey will amount to contempt of the Appeal Court decision and a violation of the clear provisions of section 287(2) of the 1999 constitution. Counsel finally urged the court to hold that this suit does not amount to abuse of judicial process and dismiss the 1st and 2nd defendants’ application with substantial costs. Replying on points of law, learned counsel to the 1st and 2nd defendants submitted that the claimants counsel misconceived the point argued by the objectors. That the points canvassed by the claimants’ counsel are irrelevant to the issue relating to hierarchy of courts which is clearly stated as their issue 1. He submitted that the fact of the Supreme Court being the highest in the hierarchy of judicial authority is settled, and when an appeal is before it on any matter, particularly when it involves the interpretation of’ the provisions of a statute as in this case, it does not require that there be a stay of execution before other persons should stay further action on such subject, referring to the case of Military Government Lagos State v. Ojukwu [1986] ANLR 233. He submitted that the instant case is tantamount to an abuse of court process and that the claim of the 1st and 2nd respondents which is on appeal at the Supreme Court is for a declaratory relief which in law is not enforceable by way of’ execution. He cited Albion Const. Ltd v. Rao Invest Pro Ltd [1992] 1 NWLR (Pt. 219) 588 at 596—597. We have easefully considered the facts of this case, submissions of counsel to all the parties and all the authorities cited. The main issue to be determined by this court is whether it has the jurisdiction to hear and determine this matter when there is an appeal pending herbier the Supreme Court on the issue of jurisdiction between the Federal High court and this Court. Jurisdiction is the power of the court to adjudicate in the subject matter of the suit before it. It is so fundamental that it takes precedence over other issues and it is necessary that it be resolved first in the interest of justice and to avoid wasting time and other resources on a trial which may end up becoming a nullity. See Nwosu v. Imo State Environmental Sanitation Authority & ors [1990] 2 NWLR (Pt. 35) 688., Madukolu & ors v. Nkemdilim [1962] 1 ANLR. 589 and A. G. Lagos State v. Dosunmu [1989] 3 NWLR (Pt. 111) 552. All the parties agree that there is an appeal pending before the Supreme Court on the issue of jurisdiction. We also find that the appeal has been entered in the Supreme Court as Appeal No. SC/22/2005 and is listed for hearing on the 7th June 2010 as evidenced by the hearing notice attached to the affidavit in support of the preliminary objection. In the circumstance, the matter is prematurely before this court. It will amount to judicial rascality to continue to hear this matter when there is the possibility, even if a remote one, that the Supreme Court may rule that the federal High Court, and not this court, has the jurisdiction to hear and determine the matter. Consequently, the matter is hereby struck out. Ruling is entered accordingly. _____________________________ Hon. Justice B.B. Kanyip Presiding Judge ______________________ _____________________ Ion. Justice F.I. Kola-Olalere Hon. Justice O.A. Obaseki-Osaghae Judge Judge