IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
DATE: 5th February 2020 SUIT NO. NICN/LA/356/2019
1. MOTORMECHS AND TECHNICIANS ASSOCIATION
2. ENGR. SULEIMAN AKINOLA OSENI
3. MR. PAUL ABAYOMI OLATUNDE
4. MR. ADEBOLA OYEDELE
5. ABDUL RASAQ YUSUF … CLAIMANTS
6. MOSHOOD OLANIYAN
7. VICTOR OKEYOMO
8. ANTHONY OKEY IHEKUNA
[Suing by themselves and on behalf of other
National Executive Council]
1. CHIEF SAMUEL OLUSOLA SOLAGBADE
2. CHIEF KAYODE OBANEYE
3. ALHAJI YAYA ADESHIN
4. ENGR. ADENIYI JONES ODUSANYA
5. PRINCE JOSEPH ADEBAYO OMOTOSHO
6. ALHAJI MORUFUDEEN AROWOLO
7. ENGR. SAMSON IDOWU
8. ENGR. SHIJI ABOWABA … DEFENDANTS
9. DR. ISMAILA ALANI
10. CLEMENT OLAOYE
11. MUFUTAU ABIBU
12. LUKE MEHOR
13. EDWARD JULIUS
14. TAIWO SHEIDU
15. INSPECTOR DAVID
1. By notice of preliminary objection dated 16th September 2019and filed on 17thSeptember 2019 brought pursuant to Order 17 rule 1, National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and under the inherent jurisdiction of this Honourable Court, the Defendant prayed the Court for:
a. A declaration that the Honourable Court lacks the requisite jurisdiction to determine the Claimant’s suit for want of competence.
b. An order of the Honourable Court dismissing and/or striking out the Claimant’s suit for incompetency and want of jurisdiction to entertain same.
c. And for such further or otherorders as the Honourable Court may deem fit to make in the circumstances.
Upon the following grounds
[a] That Motormechs and Technicians Association of Nigeria [MOMTAN] [the Claimants] is not a proper person to commence this action.
[b] That the Claimants’ action discloses no cause of action against the 1st – 14th Defendants in this suit.
[c] That the Claimants lack the locus standi to commence this action against 1st – 14th Defendants in this suit.
[d] That this Honourable Court lacks the jurisdiction to entertain this suit.
The preliminary objection is supported with 15 paragraphs affidavit deposed to by Alhaji MorufdeenArowolo,Chairman of Motormechs and Technicians Association of Nigeria. Attached to the affidavit aretwo exhibits marked as exhibits A and B, which are copies of the certificate of incorporation and constitution of the Incorporated Trustees of Motormechs and Technicians Association of Nigeria. In compliance with the Rules of the Court, the Defendants filed a written address dated 16th September 2019. In opposition to the application, the Claimantsfiled a counter affidavit dated19th November 2019 deposed to by Mr. Quadri Olatunji, a litigation executive of AdepojuAjala’s Chambers. Attached to the affidavit is one document marked exhibit A1, which is a ruling of the High Court of Lagos State declining jurisdiction. In compliance with the Rules of this Court, the Claimants filed a written address dated 18th November 2019.
2. Arguing the application on 20thNovember 2019, Mr. Eke, learned counsel for the Defendants relied on the affidavit in support and adopted the written address as his argument in support of the application and urged the Court to strike out the suit because it is incurably bad and no form of amendment can be made the Court having lacked jurisdiction to entertain it. He referred to Socio-Political Research Development v. Ministry of Federal Capital Territory  1 NWLR [pt.1653] 313 at 321-323.He adverted to the counter affidavit filed by the Claimants, ostensibly in response to a motion dated 24th September 2019, and explained that the Claimants have not exhibited any document giving them capacity to sue. He, therefore, argued that the 1st Claimant does not have the capacity to sue while the 2nd to 8th Claimants suing on behalf of other National Executive Council are not recognized by law and not being juristic persons in law, the Court cannot assume jurisdiction over the case.Mr. Oyeniyi, learned counsel for the Claimants adopted his counter affidavit together with the attached exhibit and written address and urged the Court to dismiss the application.
3. In the written address filed in support of the application, learned counsel for the Defendantsformulatedthree issues for determination to wit:
a. Whether the 1st Claimant is a competent party entitled to commence this suit against the 1st – 14th Defendants before the Honourable Court?
b. Whether the Honourable Court lacks the jurisdiction to entertain this suit?
c. Whether the commencement of the suit by the 2nd – 8th Claimants in their personal names and on behalf of other National Executive Council is proper?
On issue one, he submitted that the general rule is that only natural and artificial persons are entitled to sue and be sued and relied on Fawehinmi v. Nigerian Bar Association  2 NWLR [pt.105] 558 at 595. He posited that for a court to have the requisite vires to adjudicate over a suit, the ingredients contained in Madukolu v. Nkemdilim  ANLR [pt.2] 581 at 583must be fulfilled. He argued that the 1st Claimant as expressed on the complaint is not a juristic person and as such incapable of instituting this action. Relying on section 596 and  of the Companies and Allied Matters Act, he argued that it appears statutorily established that legal personality is inextricably tied to the name given to the incorporated trustees.He submitted that the 1st Claimant is not a proper Claimant in the suit and where the Claimant is not a legal person, the action is liable to be struck out. The cases of Green v. Green  2 NWLR [pt.61] 480 at 493 and Moses v. NBA  8 NWLR [pt.1673] 59 at 67 were cited in support.
On issue two, he submitted that a Court must possess jurisdiction before it can determine a matter, which is activated when certain conditions are fulfilled including the presence of competent parties. He referred to Madukolu v. Nkemdilim [supra] amongst others.
On issue three, learned counsel referred to section 254C of the 1999 Constitution and argued that this Court lacks jurisdiction to entertain this suit as presently constituted in that the 2nd– 8th Claimants are not proper parties that can bring such action. The Court was urged to grant the application.
In his response, learned counsel for the Claimants argued that a party to an action is the person whose presence is crucial and fundamental to the resolution of a matter. He referred to the case of Okelue v. Medukam  2 NWLR [pt.1230] 176. He contended that the Claimants are members of the National Executive Council of the 1st Claimant, and contrary to the argument of the Defendants that the Claimants ought to sue in the name of ‘Registered Trustees of Motormechs and Technicians Association of Nigeria’, the National Chairman is one of the trustees of the 1st Claimant. He urged the Court to discountenance the application with substantial costs.
4. The issue for determination in this application, in my respectful view, is whether this Court has jurisdiction to entertain this suit as presently constituted? Learned counsel for the Defendants answered the question in the negative. It should be noted that the words ‘lacks jurisdiction’ connote two things. The first sense is that the Court is precluded from entertaining the action because of the subject-matter of the action, regardless of the parties involved. In the second and broader sense, a court may lack jurisdiction because of the incapacity of the Claimant[s] to institute the action or because of the status of the defendant. See Elufioye&Ors. v. Halilu&Ors.  LPELR-20126[CA] 45-46. Clearly, by the combined effect of section 254C[a], [b] and [j][vi] of the 1999 Constitution as amended, this Court has jurisdiction over matters relating to trade unions and trade unions constitution. However, the application deals with the second sense in which the words are used which, in this case, arises from the alleged incapacity of the Claimants. In buttressing his argument that the Claimants do not possess the requisite capacity to maintain this action, learned counsel for the Defendants fractionalized the Claimants. He maintained that the 1st Claimantis not a legal person; while the 2nd– 8th Claimants lack capacity to sue in their personal names.
It is settled law that in determining whether a Court has jurisdiction to entertain an action, the processes to be considered are the processes filed by the Claimants. See Anyanwu v. Ogunewe&Ors.  LPELR-22184[SC] 45. It is equally settled law that the issue of juristic personality of any of the parties to the suit touches on the jurisdiction of the Court to entertain the matter. See Socio-Political Research Development v. Ministry of Federal Capital Territory [supra] at page 340.
From the endorsement on the complaint and statement of facts, it is clear that this suit is maintained by the Claimants for themselves and on behalf of other National Executive Council [members]. Paragraph 1 of the statement of facts introduces the 1st Claimant as a registered association under the Companies and Allied Matters Act. The 2nd, 3rd, 4th and 5th Claimants are said to be the President, Secretary, Treasurer and Vice President of the 1st Claimant, while the 5th – 8th[sic] Claimantsare part of the National Executive of the 1st Claimant. In contending that the 1st Claimant lacks capacity to sue, counsel hinged his objection on omission of the words “The Incorporated Trustees of” and relied on the case of Socio-Political Research Development v. Ministry of Federal Capital Territory [supra]. Without doubt, that case is inapplicable to this case. In that case, the Claimant had no evidence of registration under the Companies and Allied Matters Act. In this case, exhibit A, tendered by the Defendants shows that the 1st Claimant is registered under Part C of the Companies and Allied Matters Act. It is, therefore, a person known to law. The non-inclusion of the words ‘The Incorporated Trustees of’ is, in my considered opinion, a misnomer which should not be allowed to defeat the justice of the case. A misnomer has been held to occur where there is a mistake with regard to the name of a litigant in an action. It is a mistake as to the name and not as to the identity of the party. See Access Bank Plc v. Agege Local Government & Anor.  LPELR-40491[CA] 17. That this is so is evident in paragraph 6.4 of the Defendants’ written address in support of the application, wherecounsel argued that:
“In addition, if by any extension, the 1st Claimant is an unregistered trade union which we do not concede because it is registered, ….”
Clearly, the Defendants are not mistaken as to who the 1st Claimant is, but as to how it was described. The description of the 1st Claimant does not rob it of the capacity to sue since the law accords it legal personality. See section 596 of the Companies and Allied Matters Act. The Defendants’ issue one is thus resolved against the Defendants.
The next sub-issue is whether the 2nd – 8th Claimants can maintain this action. The Defendants admit that the 2nd – 8th Claimants are natural persons and the 2nd – 5th Claimants were former executives of the 1st Claimant. As natural persons they have legal capacity to sue and be sued. It is my considered view that being members of the 1st Claimant does not derogate from their capacity to sue. Section 6[b] of the 1999 Constitution provides:
“ The judicial powers vested in accordance with the foregoing provisions of this section –
[b] shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
I have painstakingly read the Rules and Constitution of the 1st Claimant and there is nothing therein prohibiting the action taken by the Claimants. Assuming it did, which is not the case, it would be inconsistent with the provisions of the 1999 Constitution and to that extent, null and void. See section 1 of the 1999 Constitution and the cases of The Registered Trustees of Association of Tippers and Quarry Owners of Nig. v. Chief Ramoni Yusuf &Ors.  LPELR-5024[CA] 25 and Elufioye&Ors. v. Halilu&Ors. [supra] 42-43.
In the final analysis, I hold that the Claimants have legal capacity to initiate and prosecute this suit and consequently this Court has jurisdiction to determine same.
Ruling is entered accordingly.
IKECHI GERALD NWENEKA
Attendance: Claimants, 3rd, 4th, 6th – 8th, 11th – 15th Defendants are absent, others are present.
Adeola Adelusi Esq. holding the brief of Frank Eke Esq. for the Defendants
No legal representation for the Claimants