IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 17TH DAY OF MAY, 2019
SUIT NO: NICN/MKD/03/2018
1. PETER KYADO
2. STELLA PETERS
3. INNOCENT AGBO
4. FRANCIS AUR
5. JAMES MAC MTSOR
6. SAMUEL AUDU ADANU
7. EJEMBI ADOKOLE
8. SUNDAY OMENKA
9. MRS. ANN ADEBAYO
10. DR. JOSHUA D.N. ABUKU
11. SAMUEL N. ISHONGO
12. HON. SYLVESTER ELACHI CLAIMANTS/RESPONDENTS
13. ABRAHAM EKIRIGWE
14. JOSEPH KAASE
15. DOOSHIMA ORAHII
16. MR. ALFRED ABAH
17. HON. STEPHEN SHAGBUM
18. MR. AMOKAHA ORTESE
19. MR. BABA AZA
20. CHIEF H.I. EGBOGU
21. MR. BENJAMIN GWAR
22. MR. HENRY IORKUBUR
23. JEROME ASONGO NONGO
24. EMMAUNEL GOGO
25. GEOFFREY NWENIZE
26. ADUE GE
27. MICHAEL VEMBEH
1. NIGERIA UNION OF PENSIONERS,
BENUE STATE CHAPTER.
2. JOSEPH IKYUME
3. VAKAA AHURA
4. VICTOR GABRIEL CHARLES
5. AUGUSTINE ADA OMAJI
6. NGIBO NATHANIEL DEFENDANTS/APPLICANTS
7. MARK T. YOOSU
8. PETER UDEH
9. DANIEL OKOLIKO
10. DANIEL NUNCHIR
11. INNOCENT GBEGI
12. DENNIS ASUE
13. UGBEDE SYLVESTER
F.A. Nomor, Esq appears with G.A. Iorpenda, Esq for the Claimants/Respondents.
N.O. Okereke, Esq for the Defendants/Applicants.
The Claimants vide originating summons dated and filed on the 16th January 2018 seeks the determination of the following questions;
"1. Whether the EXCO of the Benue State Chapter of the Nigeria Union of Pensioners (NUP) is entitled to suspend the Claimants.
2. Whether the purported suspension of the Claimants by the Defendants is legal having regard to the Constitution of the Nigeria Union of Pensioners.
3. Whether the purported suspension is not null and void having regard to the fact that the rule of natural justice of audi alterem partem and nemo judex in causa sua has been breached.
4. Whether the suspension of claimants amounts to a breach of the Claimants’ right to freedom of association.
5. Whether the Court has powers to set aside the purported order of suspension."
The Claimants seek the following reliefs upon resolution of the above questions;
"A. A declaration that the EXCO of the Benue state Chapter of the Nigeria Union of Pensioners (NUP) is not entitled to suspend the Claimants.
B. A declaration that the purported suspension of the Claimants by the Defendants is illegal having regard to the Constitution of the Nigeria Union of Pensioners.
C. A declaration that the purported suspension is null and void having regard to the fact that the rule of natural justice of fair hearing has been breached.
D. A declaration that the purported suspension is null and void and of no effect whatsoever.
E. A declaration that the purported suspension was null and void and therefore a breach of the Claimant’s right to Freedom of Association.
F. An order setting aside the purported suspension of the Claimants.
G. Any other order(s) this Honourable Court may deem fit to make in the circumstances of this case."
In support of the originating summons, is a nine paragraph affidavit deposed to
by the first claimant, Peter Kyado on behalf of the Twenty-Six other Claimants
and exhibit FA1 which is the letter of suspension and exhibit FA2 which is a copy
of the Constitution and Code of Conduct of the Nigeria Union of Pensioners
were attached. It was also accompanied by a written address.
The Defendants instead of filing a counter affidavit to the originating summons
filed a notice of preliminary objection dated 16th October 2018 and filed on the 17th October 2018 challenging the jurisdiction of the court to entertain the suit of the Claimants on the ground that the conditions precedent as provided in Rule 25 of the Constitution of the Nigeria Union of Pensioners was not complied with before this action was instituted. The Defendants/Applicants in support of their notice of preliminary objection filed a four paragraph affidavit and exhibit A which is the Constitution and Code of Conduct of the Nigeria Union of Pensioners was attached to the affidavit. The objection was accompanied by a written address.
The Claimants/Respondents in opposition to the Notice of Preliminary Objection filed by the Defendants filed a counter- affidavit and written address dated and filed on the 9th November 2018 which was deemed properly filed and served on the 14th February 2019. The Defendants/Applicants also filed a further affidavit and a written address to the Claimants/Respondents’ counter- affidavit dated and filed on the 25th February 2019.
The Defendants/Applicants through their counsel adopted their arguments as contained in the Notice of preliminary objection and the further affidavit on 6th March 2019 while the Claimants/Respondents equally adopted their written address accompanied to their counter affidavit on the same date.
Defendants/Applicants stated that the State Executive Committee at its meeting of 7th December 2017 unanimously agreed to suspend the Claimants/Respondents who were operating an unregistered group and causing embarrassment to the Union and general public.
That the Claimants were duly suspended due to their anti-Union activities but did not exhaust the internal conflict resolution mechanism provided in the 1st Defendant's constitution before instituting this action.
The Defendants/Applicants in arguing their preliminary objection raised a lone issue for determination thus;
"Whether the Claimants/Respondents have complied with the conditions precedent necessary to commence the suit before instituting same."
The basis of the Defendants'/Applicants’ objection is that Rule 25 of exhibit A which is same as exhibit FA2 exhibited by the Claimants/Respondents (that is the Constitution and Code of Conduct of the Nigeria Union of Pensioners) has laid down procedures to comply with in ventilating grievances by members of the Union before resorting to litigation.
Counsel to the Defendants/Applicants argued that the Constitution of the Union is a contract that binds the members and where in carrying out designated functions, the Union errs or violates any of its provisions, the same constitution has made provisions on how such grievances can be handled before resorting to court action. Counsel referred to Rule 25 of the NUP Constitution which states that;
"Institution of legal action against the Union either at the Local/State/Sectorial or National level must follow the following laid down procedures:
(a) Any aggrieved member of the union must exhaust the following procedures for redress before resorting to litigation against the Union.
¡. Formal Complaints in writing to the leadership of the State Exco for redress.
¡¡. If these grievances are not properly addressed by the State Exco, he is at liberty to take his complaint to the State Executive Council (SEC).
¡¡¡. In the event of dissatisfaction with the outcome of the case with the SEC, he should lodge his complaint in the National Administrative Committee.
¡v. If he is not satisfied with the outcome, then he should forward his case to the National Executive Council (NEC) for vetting.
v. Thereafter if he/she is not satisfied, he/she may now proceed to court of law to seek redress.
Any aggrieved member who fails to exhaust the above laid down procedures before resorting to court action should consider the case null and void, and of no effect and so shall it be."
Counsel submits that the above provisions clearly show that the Constitution of the Union recognizes the constitutional rights of members to seek redress in court but that every member of the Union is obligated to first utilize the internal conflict resolution mechanism before instituting court action against the Union.
Counsel submits that the court owes a duty to keep the Claimants bound by the above provisions and cited the author of Chitty on contract at paragraph 688 of page 448 that “the relationship between a member of a Trade Union and the Union itself is contractual and the terms of the contract are to be found in the rule of the Union”.
Counsel cited the case of INEC V. Iniama (2008) 8 NWLR (pt.1088) 182 @ 202 to define the word “Must” to mean mandatory and imperative and admits of no discretion.
Counsel submits on the unreported case of Chief Michael A. Inegbaedion V. The Nigeria Union of Pensioners (unreported) Suit No. NICN/ABJ/126/2013 delivered by this court on 10th June 2016 that it is only when all steps are taken and complainants are not satisfied that they can seek redress in court and that rule 25 of the NUP constitution is akin to a condition precedent which involves the exhaustion of internal dispute resolution mechanism before approaching the court. Counsel also referred the court to the cases of Co-operative Bank V. Elcane (2010) All FWLR (part.511) 833 @ 847 and Dalhatu V. Turaki (2003) 15 NWLR (part.843) 310 @ 347.
Counsel to the Defendants/Applicants urged the court to give effect to the provisions of Rule 25 of the NUP constitution as the constitution is a contractual agreement freely entered into by members of 1st Defendant including the Claimants/Respondents to encourage peaceful resolution of disputes among members. Thus the failure of the Claimants/Respondents to comply with Rule 25 of the NUP Constitution renders the suit null and void as it is a condition precedent, the absence of which has robbed the court of jurisdiction to try same.
The Claimants/Respondents in opposing the preliminary objection of the Defendant's filed a 4 paragraph counter affidavit where it was averred that at the time of filing this suit, the claimants were suspended and therefore not members of the Union. That they did at no time carry any anti-Union activities. That due process was not followed before they were suspended and the suspension was done in bad faith.
Claimants in their written address raised a lone issue for determination thus;
"whether Claimants/Respondents having regards to their suspension as members of the Nigeria Union of Pensioners are entitled to exhaust the procedure laid down under rule 25 of the NUP Constitution before filing the substantive suit."
Counsel to the Claimants/Respondents argued that as suspended members of the Union, they are no longer members of the Union hence cannot be subject to the constitution of the Union. Counsel cited Rule 3 (vi) of the NUP constitution which provides thus “A member shall have the right to have his/her grievance processed by the Union” and argues that these rights are available to members of the Union only and do not extend to the Claimants/Respondents who are on indefinite suspension.
Counsel submits that even if Claimants/Respondents were members of the Union, they still reserve the right to relinquish their rights and privileges accorded them by the Constitution. Counsel cited the case of Akinyemi V. Odu’s Investment Co. Ltd. where the Supreme Court held thus;
Where the law has conferred a right on a person and the person, for some reasons, decided to abdicate or abandon or relinquish that right, it is not the duty of a court and the court has no power to restore that right on such a person as one cannot force an unwilling horse to drink water.
Counsel submits further that a person on indefinite suspension cannot be expected to comply with rule 25 of the NUP constitution before having access to court as the Blacks’ law dictionary defines suspension to mean “a temporary cutting off or debarring one from the privileges of one’s profession”, and when it is indefinite it connotes timelessness, without fixed boundaries. Thus by exhibit FA1, the Claimants are on indefinite suspension that’s why they have approached the court to be restored as members. Counsel cited the case of Mobil Producing Nig. Unltd. V. Effiong (2013) All FWLR (pt.673) 1942 at 1963 and also Longe V. First Bank of Nigeria Plc (2010) All FWLR (pt.525) 258 at 288.
Counsel submits also that statutes which over reach the citizens’ rights of access to court are subject to very strict interpretation and referred the court to the case of Abuah V. Okosi (2015) 15 NWLR (pt.1484) 147 @ 168 and also the case of Ikpeazu V. Ogah (2017) 6 NWLR (pt.1562) 439 wherein the courts are obliged by section 6(6) of the 1999 Constitution to give opportunity to each litigant to ventilate his grievance and such right cannot be taken away by any authority or person.
Counsel distinguished the unreported case of Chief Michael A. Inegbaedion V. The Nigeria Union of Pensioners and the instant suit by stating that in the earlier suit, the Claimant was still a member of the Union while in the instant one, the Claimants were no longer members of the Union by virtue of their indefinite suspension. Hence the Claimants/Respondents cannot be bound by Rule 25 of the NUP Constitution until their membership is restored.
Counsel therefore urged the court to dismiss the preliminary objection raised by the Defendants/Applicants as being misconceived and lacking in merit.
Having considered the arguments of both counsel and the relevant documents relied upon by them, the pertinent question for determination here is whether the non-compliance with a condition precedent can vest jurisdiction on this Honourable Court.
A condition precedent is something that must be done or must happen in a particular case before a person is entitled to institute an action. Therefore where a pre-condition for doing an act has not been complied with, no act subsequent thereto can be regarded as valid. In the case of Atolagbe & Anor V. Awuni & 2 Ors. (1997) 9 NWLR (part.522) 537 at 565, the Supreme elucidated condition precedent thus;
Condition is a provision which makes the existence of a right dependent on the happening of an event, the right is then additional as opposed to absolute right. A true condition where the event on which the existence
of the right depends is in the future and uncertain.
A ‘condition precedent’ is one that delays the vesting of a right until the happening of an event.
Also in the case of Drexel Energy & 2 Ors. V. TIB & 2 Ors. (2008) 36 NSCQR (part.II) 1219 at 1232, the Supreme Court held that when everything has happened which vests in a party a certain right of action but there is something further or more to be done before he is entitled to sue either by reason of provision of some statute or because the parties have expressly so agreed to, that something more is condition precedent to the exercising of the right to sue. This means that non- compliance with the said provision robs the court of jurisdiction to adjudicate on the matter. In the case of Atiku Abubakar V. A.G. Federation & Ors. (2008) All FWLR (part.441) 870 at 908, the Supreme Court held that where a statute has prescribed for a particular method of performing a duty regulated by it, such method and no other must be adopted. Similarly the Supreme Court held in the case of Chief F.A. Bamisile V. Francis Ojo Osasuyi & 5 Ors. (2008) All FWLR (part.423) 1300 at 1338 that “where remedies are statutorily provided for determining an issue, the aggrieved party must exhaust all the remedies available to him before going to court. See also the case of Owoseni V. Faloye (2005) 14 NWLR (part.946) 719.
In the instant suit, the defendants/Applicants are relying on Rule 25 of the Constitution and Code of Code of the Nigeria Union of Pensioners (NUP) which has provided an internal mechanism for resolution of disputes and disagreements among members and the Union before initiating an action in court. Rule 25 of the NUP Constitution has stipulated a four step procedure of internal dispute resolution within the union before seeking redress in court. This condition precedent according to the Defendants/Applicants has not been followed by the Claimants/Respondents before initiating this suit. The Claimants/Respondents on the other hand are contending that by virtue of their indefinite suspension, they were no longer members of the Union hence cannot comply with the provisions of Rule 25 of the NUP Constitution.
I wish to state that suspension is one of the methods of discipline provided by the NUP constitution and suspension for a timeless period does not mean loss of membership. The Blacks’ Law dictionary has defined suspension to mean a temporary stop of a right, a law and the like, and a suspended right is susceptible of being revived as opposed to where the right is extinguished. Therefore, the suspension of the Claimants/respondents does not terminate their membership with the Union but a temporary stay off from the activities of the Union pending the resolution of the act leading to the disciplinary action.
The Claimants/Respondents having been suspended by the Defendants/Applicants still have the right to challenge their suspension through the channels stipulated under Rule 25 of the Constitution and Code of Conduct of the Nigeria Union of Pensioners before suing. This condition precedent forms part of the contract of the Union which members have all agreed to, however, this does not deny members the right to sue but to ensure that members first find a harmonious way to resolve their issues failing which they can resort to the court of law.
The failure therefore, of the Claimants/Respondents to exhaust the internal mechanisms provided by the Constitution and Code of Conduct of the Nigeria Union of Pensioners to which they voluntarily agree to and never challenged same takes away the jurisdiction of this Honourable Court to entertain same as such non-compliance with a condition precedent vitiates the action ab initio. See the case of Odofin V. Agu (1992) 3 NWLR (part.229) 350.
In the case of Gambari V. Gambari (1990) 5 NWLR (152) 572 at 577- 578, the court held that “where there is non-compliance with a stipulated pre-condition for setting a legal process in motion, any suit instituted in contravention of the pre-condition is incompetent and the court is equally incompetent to entertain the suit”. Thus the Supreme Court held in Kida V. Ogunmola (2006) 13 NWLR (pt.997) 377 that it is only compliance with condition precedent to initiating an action that confers jurisdiction on the court to hear the matter.
The apex court has categorically pronounced in the case of A. G. Kwara State & Anor V. Alhaji Saka Adeyemo & 7 Ors. (2016) LPER No. SC.650A/2013 that where there is a provision to be complied with before instituting an action, non- compliance with such a precondition will not confer jurisdiction on the court to adjudicate on the matter as jurisdiction is the pillar under which the entire case stands and once it is shown that the court lacks jurisdiction, the case is not only shaken but entirely broken and in effect there is no case before the court.
Additionally in Akintemi V Onwumechili(1985) LPELR - 357(SC),the Supreme Court said that, it seems to be incontestable that the issues with which the appeal before it is concerned belong to the domestic domain of the University as enshrined in the statute establishing it and are such not justiciable in a court of law. See also UniIlorin V Oluwadare (2006)LPELR - 3417(SC) where the Respondent upon his expulsion from the University Instituted an action against the University and the Supreme Court held that the action was not initiated by due process of law and the condition precedent to the court's jurisdiction because the domestic mechanism was not exhausted before instituting the action.
Therefore, the failure of the Claimants/respondents to comply with Rule 25 of the Constitution of the Nigeria Union of Pensioners and exhaust the internal remedy available to resolve their disagreement with the Union completely robs this court of the jurisdiction to adjudicate on this case.
Consequently, the preliminary objection raised by the Defendants/Applicants dated 16/10/2018 and filed on the 17/10/2018 succeeds and on that score, this Suit is hereby struck out for lack of jurisdiction by the court to entertain same.
Ruling is entered accordingly. I make no order as to cost.
HON. JUSTICE S. H. DANJIDDA