Comrade Aliu Salihu v Comrade Benjamin Anthonyand 1 Other

• Judge: Hon. Justice B. B. Kanyip, Phd
• Judgment Date: 14 October 2021
• Respondent: Comrade Benjamin Anthonyand 1 Other
• Appellant: Comrade Aliu Salihu
• Docket Number: NICN/ABJ/67/2021
• Court: National Industrial Court (Nigeria)

INTRODUCTION

1. The claimant took out this action on 3 March 2021 vide an originating summons. The originating summons is supported by an affidavit with an exhibit and a written address. The claimant is praying this Court to determine the following questions:
(1) Whether in the light of the judgment of this Honourable Court in Senior Staff Association of Statutory Corporations and Government Owned Companies v. Federal Housing Authority, Suit No: NICN/ABJ/103|2019 and in Senior Staff Association of Statutory Corporations and Government Owned Companies v. (SSASCGOC) & anor v. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Services Employees (AUPCTRE), Suit No: NICN/ABJ/l25/20l9 to the effect that the former (SSASCGOC) is the proper union to register and unionize senior staff of the Federal Housing Authority, can the 1st defendant be rightly held to be a member of the 2nd defendant union?
(2) If the answer to question 1 is in the negative, whether the 1st defendant can rightly hold elective office in the 2nd defendant union.
(3) If the answer to question 2 above is in the negative, whether the 1st defendant can legally continue to hold elective office in the 2nd defendant union.

2. If the answer to question 3 above is in the negative, the claimant prays the Court for the following reliefs against the defendants:
(1) A declaration that the office of the President of Amalgamated Union of Public Corporations, Civil Service, Technical and Recreational Service Employees (AUPCTRE) is vacant since the 1st defendant cannot properly (sic) regarded as a member of the union is thus not qualified to contest or occupy elective position in the union.
(2) A declaration that the person with the second higher votes in the election that produced the 1st defendant as President of the union be immediately returned and sworn in as the President of the 2nd defendant union.
(3) An order of this Honourable Court restraining the 1st defendant from further parading himself either as a member or the President of the 2nd defendant union.
(4) Any other orders which this Honourable Court may deem fit to make.

3. In reaction, the defendants filed two processes: the counter-affidavit to the originating summons; and a preliminary objection to it. The preliminary objection prays that the originating summons be struck out or dismissed for want of jurisdiction.

4. In reaction to the defendant’s preliminary objection, the claimant filed on 2 July 2021 a counter-affidavit and a written address urging the Court to dismiss or strike out the preliminary objection. The defendant did not file any reply on points of law regarding the claimant’s reaction.

5. In response to the defendant’s counter-affidavit to the originating summons, the claimant filed on 23 July 2021 a further affidavit and a reply on points of law.

6. I shall take the defendant’s preliminary objection first before looking into the merit of the originating summons.

THE DEFENDANT’S PRELIMINARY OBJECTION

The Submissions of the Defendant as to the Preliminary Objection
7. The defendant’s preliminary objection is brought pursuant to section 4(1) of the Trade Disputes Act (TDA) and under the inherent jurisdiction of the Court. It questions the competence/jurisdiction of this Court to hear and determine this suit as presently constituted and prays the Court for an order striking out/dismissing this suit for lack of jurisdiction.

8. The grounds of the objection are:
(1) The cause of action in this suit relates to intra union dispute within the contemplation of Rule 27, constitution of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (as amended) and section 4(1) of the Trade Disputes Act.
(2) The claimant/respondent filed this suit before this Honourable Court without first exhausting the dispute resolution mechanism enthroned in Rule 27, constitution of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) as enjoined under section 4(1) of the Trade Disputes Act.
(3) The claimant/respondent’s having not compiled with Rule 27, constitution of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) the suit is incompetent and has denied this Honourable Court the jurisdiction to hear and determine same as presently constituted.

9. The defendant submitted one issue for determination, namely: whether in the circumstance of this case, this suit is not incompetent and this Honourable Court lacks jurisdiction to hear and determine the suit as presently constituted.

10. To the defendant, this issue touches on the competence and jurisdiction of this Court to hear and determine this suit as presently constituted. That jurisdiction is a threshold issue and fundamental to the powers of the Court to hear and determine a suit before it. It is the lifeline of all suits and a hearing without jurisdiction is a nullity, citing Petrojessica Enterprises Ltd. & anor v. Leventis Technical company Ltd [1992] LPELR-2915(SC).

11. The defendant went on that a court can only assume and exercise jurisdiction when it is competent (in terms of constitution of the members, the subject matter is within jurisdiction, and the case is initiated through due process) to hear and determine the suit before it, citing Tukur v. The Government of Taraba State & ors [1997] LPELR-3219(SC).

12. That the claimant/respondent is a member of the 2nd defendant and was the immediate past National Treasurer of the 2nd defendant. That the claimant along with all other members of AUPCTRE including the 1st defendant agreed and subscribed to the provisions of the constitution of AUPCTRE, which embodied the terms of their agreement. Members, therefore, derive rights to challenge perceived infraction in the application of the constitution including occupation of the office of National President of the union. That the same constitution sets out how that right is to be exercised.

13. To the defendant, Rules 6(F)(i)(d), 8(B) and 15(1)(i) of AUPCTRE constitution provide for the office of the National President of AUPCTRE and election into the office. That the claimant in his reliefs as endorsed on the originating summons is seeking the removal from office of the 1st defendant and praying this Court to return another member of the union as the President of the union. The defendant then submitted that the issues nominated in the originating summons relates to dispute between members of AUPCTRE and therefore is an intra union dispute within the meaning and contemplation of Rule 27 of AUPCTRE’s constitution.

14. That where the dispute is intra union, the members of AUPCTRE have agreed in their constitution that they shall first resolved the dispute through the dispute resolution mechanism set out in Rule 27 of their constitution. Rule 27 of AUPCTRE’s constitution provide as follows:
(a) In the event of the occurrence of intra-union dispute(s) any aggrieved member or branch shall in the first instance report the matter in writing to the General Secretary.
(b) ……..
(c) ……..
(d) ……..
(e) ……..
(f) No aggrieved member or branch shall employ other processes including court litigation to resolve intra-union dispute in AUPCTRE without exhausting the laid down procedure enumerated in this Rule.

15. The defendant continued that the claimant ought to have exhausted the intra union dispute resolution mechanism in Rule 27 of AUPCTRE’s constitution before commencement of this suit as it is a condition precedent to the commencement of intra union dispute by members of AUPCTRE before this Court.

16. That section 4(1) of Trade Disputes Act recognizes agreement by members of a trade union to resolve disputes in the manner set out in Rule 27 of AUPCTRE’s constitution. Such agreement to settle disputes must be attempted before parties can resort to litigation in court. That section 4(1) of the Trade Disputes Act provides as follows:
If there exist agreed means for 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 organization of workers or any other agreement, the parties to the disputes shall first attempt to settle it by that means.

17. To the defendant, the combined effect of section 4(1) of the Trade Disputes Act and Rule 27 of AUPCTRE’s constitution is that exhausting the processes under Rule 27 of AUPCTRE’s constitution constitutes a condition precedent to activation of the jurisdiction of this Court in the instant case. That section 4(1) of Trade Disputes Act represents a statutory condition precedent to the exercise of jurisdiction over intra union disputes in AUPCTRE, citing Shugaba v. Union Bank of Nigeria Plc [1999] LPELR-3068(SC), which held that where a statute provides for the fulfillment of a condition before an action is commenced, failure on the part of the plaintiff to fulfill the condition will render the entire action and the subsequent trial a nullity, however ably it was conducted.

18. The defendant then submitted that the claimant has not satisfied the condition precedent to activate the jurisdiction of this Court over the issues nominated in the originating summons. That this suit is, therefore, incompetent and this Court lacks jurisdiction to hear and determine the suit as presently constituted.

19. In conclusion, the defendant submitted that the claimant, having not complied with the condition precedent to the exercise of jurisdiction in the circumstance of this case, this suit is premature, incompetent and ought to be struck out or dismissed in its entirety with a cost of N500,000 (Five Hundred Thousand Naira). The defendant urged the Court to uphold the objection, decline jurisdiction in this suit and strike out/dismiss the suit in the interest of justice.

The Submissions of the Claimant in Opposition to the Preliminary Objection
20. The claimant also submitted one issue...