IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE - JUDGE
DATE: 24TH JULY, 2020 - SUIT NO: NICN/KN/19/2019
AUWALU MOHAMMAD KAIGAMA ……………………….CLAIMANT
NON-ACADEMIC UNION OF EDUCATIONAL AND
ASSOCIATED INSTITUTIONS (NASU)..............................RESPONDENT
REPRESENTATION: Claimant present. Defendant absent.
M.L Garba with Z.A Tata.
M.S Idris for the Defendant.
The claimant filed the Originating summons on the 29th of April 2020 seeking the determination of the following questions:
1. Whether the conduct of the defendant and its agents by planning and seeking to disqualify the claimant from contesting in the defendant’s Bayero University Kano branch election on the basis of rule 14 or any other provision of the “General Guidelines for the year 2019 Branch General Meeting/Election Taking place between March-July, 2019” or any other ground is not likely to violate the fundamental right of the claimant.
2. Whether having regards to the Constitution of the defendant, the guidelines as contained in “General Guidelines for the year 2019 Branch General Meeting/Election Taking place between March-July, 2019” are valid and of any legal effect.
3. Whether the provision of rule 14 of the “General Guidelines for the year 2019 Branch General Meeting/Election Taking place between March-July, 2019” can operate and have legal effect of disqualifying the claimant from contesting in the defendant’s election at the branch level.
1. DECLARATION that the conduct of the defendant and its agents, that is, the State Council and Bayero University branch by planning and or seeking to disqualify the claimant from partaking by contesting in the defendant’s 2019 Bayero University branch Quadrennial election into the office of chairman on the basis rule 14 or any other provision of the “General Guidelines for the year 2019 Branch General Meeting/Election Taking place between March-July, 2019” or any other ground without been previously found liable or guilty by any court of law or other recognized judicial body or any defendant’s disciplinary body on that ground, amounts to breach of right to fair hearing of the claimant.
2. DECLARATION that any conduct of the defendant and its agents, that is, the State Council and Bayero University branch denying or disqualifying the claimant from partaking by contesting in the defendant’s 2019 Bayero University branch Quadrennial election into the office of chairman on the basis rule 14 or any other provision of the “General Guidelines for the year 2019 Branch General Meeting/Election Taking place between March-July, 2019” or any other ground, without been previously found liable or guilty by any court of law or other recognized judicial body or any defendant’s disciplinary body, is illegal, void and amounts to breach of right to fair hearing of the claimant.
3. DECLARATION that the “General Guidelines for the year 2019 Branch General Meeting/Election Taking place between March-July, 2019” dated 1st November, 2018 as issued and or approved by the National Executive Council of the defendant on 27th and 28 September, 2018 is invalid and void.
4. DECLARATION that by provision of the defendant’s Constitution, the claimant has right and is entitled and qualified to partake and contest in the defendant’s 2019 Bayero University branch Quadrennial election into the office of chairman.
5. AN ORDER SETTING ASIDE and voiding any disqualification of the claimant from partaking by contesting in the defendant’s 2019 Bayero University branch Quadrennial election into the office of chairman on the basis rule 14 or any other provision of “General Guidelines for the year 2019 Branch General Meeting/Election Taking place between March-July, 2019” or any other ground, without been previously found liable or guilty by any court of law or other recognized judicial body or any defendant’s disciplinary body.
6. AN ORDER SETTING ASIDE any defendant’s 2019 Bayero University Branch Quadrennial election that may be conducted sequel to or upon any unlawful disqualification of the claimant from contesting in the election.
The originating summons was supported by the affidavit of Auwalu Kaigama the claimant in this suit. In the affidavit the claimant averred that he is a registered financial member of the defendant through its Bayero University Kano and had been a member since May 2000 when he was employed into Bayero University Kano where memberships dues and other levies are deducted from source during salary payment by the Bayero University and remitted to the defendant through its branch.
The claimant avers that he was elected and served as the Bayero University Kano branch secretary of the Defendant between 2003 and 2007. That he was never summoned to appear before any disciplinary committee of the Defendant at National State or Branch level and he was never found liable at any time respecting running of affairs of the BUK branch during the period he served as secretary.
He averred that presently he is an aspirant seeking election into the office of chairman of the BUK branch of the defendant. That he obtained his nomination form to this effect on 1st April 2019 and returned a fully completed form on 4th April 2019 which he annexed as exhibit 1. That he knows as a fact that every member of the defendant is free and is entitled to contest for any elective position at National State or Branch level having read Rule 22(10) of the extant constitution (Rule and Order of Business) of the defendant as approved by the sixth Rules conference of the Defendant on Thursday 4th December, 2007. A copy of the constitution of the defendant was annexed as exhibit 2.
That on 1st November, 2018, the National Executive Council issued a circular to all branches of the defendant with reference number NASU/CD/351/01 and titled “General Guidelines for the 2019 Branch General Meeting/Election Taking place between March-July 2019” (the guidelines) was attached as exhibit 3. He averred that having read Rule 14 of the Guidelines which states: “Branch Officer/member who obtained loans in the name of the Union from any bank or any other source without approval of the National Headquarters shall be deemed to be illegible to contest” He averred that as familiar as he was with the affairs of the defendant Union’s affairs, there is no valid rule or regulation in operation which prohibits seeking or obtaining of loan by branches or other organs of the defendant, before talking about consequences of such action.
That upon his reading of Rule 4 (2) and Rule 7 (1) and (4) of the constitution, he understood the fact that the only organ of the defendant that has power to make new rules or any guidelines is the Rules Conference of the defendant and not the National Executive Council (NEC) or any other organ or subordinate body of the defendant. That in fact the NEC is required to have representation in the Rules conference.
Claimant averred further that there was a plan to disqualify him from contesting in the 2019 BUK branch election. That he got the information from officers of Kano State Council and BUK branch of the defendant that he would be disqualified and denied the right to contest in the Branch election for position of chairman based on rule 14 of the guidelines claiming that he had obtained a loan from intercontinental Bank in 2006 as Branch Secretary.
He averred that the truth was that as Branch Secretary of BUK branch of the defendant, when the branch obtained a loan in 2006 from intercontinental Bank with consent of members to purchase items sold to members and paid in instalments. The congress of the branch approved the loan, and it was received by the then chairman (now late) on behalf of the branch and he did not personally obtain any loan at anytime in the name of the Union.
That after he was told that he would be so disqualified, he decided to contract the National Headquarters of the Defendant to seek a clarification and advice accordingly. A copy of the letter was annexed as exhibit 4. And when there was no response, on the previous letter written he averred that a letter written and delivered to the Defendant at its National Headquarters through registered courier service EPS whose Airway bill was attached as exhibit 5. That up to the time of filling this suit there had been no response from the National Headquarters to either state its position or give any required directive to its Kano State council or BUK branch which the claimant averred that the silence of the National Headquarters is giving a serious impression of tacit approval of the intention of some officers of state council and BUK branch and possible connivance.
He averred that he knows as fact that denying him the right to contest on any ground without firstly hearing from him and finding him liable will be illegal and a breach of his fundamental right to fair hearing. And that he knows also as a fact and from experience that the provision of any regulation cannot have retrospective effect as he served as branch secretary of Bayero University Branch of the defendant from 2003 to 2007 and the loan obtained by the Branch was in 2006 and the guidelines issued and approved by NEC on 28th September, 2019.
In response the Defendant in the counter affidavit of one Mustapha Isma’il admitted that the claimant is a staff of Bayero University Kano and is a member of a branch Union of the University and he intended to contest an election in the branch Union. And, to the best of his knowledge, there was no plan from the branch or Union or any other body to disqualify the claimant in whatsoever position.
That the claimant mentioned the General Guidelines for the year 2019 Branch General Meeting/Election taking place between March-July 2019 of which the branch Union was not the body that made the guidelines and that the guidelines for the elections are meant for any intending aspirant for election.
That the Rule 14 of the General Guidelines for the year 2019 Branch General Election/Meeting taking place between March-July, 2019 is part of the constitution of the Union assented since 2007, while the General Guidelines were made on 27-28 September, 2018 and signed by the Secretary General of the Union according to the rules of the constitution. And Bayero University Branch of the Union is not only party to the forming of the constitution adopted by the members of the Union nationwide, Kano branch inclusive.
That the branch election was set according to the constitution which was adopted by the members since 1/11/2018 and many aspirants obtained the forms for the elections and started returning them. And at this juncture without any alarm from the head office of the Union or any branch of the Union Kano branch inclusive, the claimant filed the action before the NICN at Kano claiming some unforeseen event that does not exist.
That the claimant is seeking for unwarranted declarations which he felt the court could assist him with.
That nobody has the right to unlawfully stop any aspirant from contesting any position including the chairmanship which the claimant aspires to. That up to this date, the claimant failed to prove his sources that led him to assume that he felt some where someone was trying to prevent him from partaking in the election. That being in a pre-election mood in a branch does not mean the activities of a Trade Union election is conducted that warrants the Honourable court to invade for the reliefs.
THE WRITTEN ADDRESSES
In the written address of the claimant a sole issue was formulated for determination:
“Whether the claimant is entitled to contest in the 2019 defendant’s Bayero University Kano branch election”.
It was argued for the claimant that the answer to the above issue is in the affirmative. That the claimant has rights and is qualified to contest in the 2019 defendants Bayero University Kano Branch. Placing reliance on Rule 22 (10) of the Union Constitution that membership is the sole requirement to contest for an elective position where it states that every member of NASU shall be free to aspire to any elective office.” That the membership of the claimant had not been in doubt and his aspiration has also been established with exhibit I.
The Defendant in its written address in support of the counter affidavit had argued that the contentious issue before the court is that, the constitution of the Union of which the claimant is a member by virtue of Rule 22 (10) of the Union constitution, that allowed him to aspire for any elective office. It was argued further that the issue of writing a letter to the National office of the Union at Ibadan Oyo State by the claimant’s counsel over whatsoever pertaining the branch Union election and failure to reply the letter would not be a ground that leads to victimization from the branch Union. That the affidavit evidence over the ground of obtaining loan in the Union in 2006 by the claimant is not a subject matter before the branch Union and even the National Union did not name anybody over the loan which warranted the claimant to assume that someone is witch-hunting him for disqualification. And therefore insisted that the issuance of the General Guidelines for the year 2019 Branch General Meeting/Elections taking place between March-July, 2019, dated 1st November 2018, approved by the National body of the Union in September 2018 is valid until proved otherwise.
In conclusion the Defendant argued that the claimant has no cause of action to file the suit before the court. Here I refuse to mention the case cited to support the Defendant for incomplete citation of an authority on the point that a fear of suspicion real or imagined that the Defendant may in future, wrongly or rightly lay claims against the claimant, does not constitute a cause of action to enable the claimant sue the defendant.
In coming to a decision out of the arguments of the parties from the written addresses and the averments respectively made in the affidavits they relied on. One thing that is clear is that the Defendant in its counter affidavit made some admissions which had been stated earlier in this Ruling/Judgment. The Defendant had said in the counter affidavit that there was no plan to disqualify the claimant in whatsoever position. This at paragraph of the counter affidavit among other admissions reproduced earlier in this Ruling/Judgment. Leading the court to conclude then and now that there has been no substantial issue in dispute in the facts of the case, hereby lending credence to claimant’s use of the originating summons as an originating process. See ETIM V. OBOT (2010) 12 NWLR (pt 1207) 108 CA where it was held that it is best suited for cases where there are no substantial disputes of facts. I find that has been the case here.
Having settled that there are no substantial issues in dispute as regard the fact. I next turn to the determine the issue formulated for determination by the claimant whether he is entitled to contest in the 2019 defendant’s Bayero University Kano branch election.
In determining this issue right away I hereby reproduce the provision of Rule 22 (10) of the defendant’s constitution which states “Every member of NASU shall be free to aspire to any elective office...”
This being the provision of the Defendants constitution and the Defendant itself not disputing the membership of the claimant of the Union, the answer to the issue on these bases is unequivocally in the affirmative. As the Defendant had even gone on to aver that there was no plan to disqualify the claimant in its counter affidavit.
Now, having determined the sole issue for determination in the affirmative, I turn to the 3 questions sought for determination by the claimant and here I do begin to consider the Defendant’s arguments and averments that the claimant has not named or proved the sources of the claim that he would be disqualified from contesting and to an extent by the affidavit evidence before me this seems to have some credence.
However, looking broadly at the whole case and the content in which it was brought to court it would not be out of place for candidates leading up to an election to nurture such fears of disqualification and the like. It is a good thing, though, that the Defendant has denied that there is no such thing or more at paragraph 15 of the counter affidavit. I would therefore not dismiss his claim as being unwarranted so that he is able to contest the election wherever it is scheduled to hold by the Defendant.
Therefore in invoking the court’s equitable jurisdiction because the claimant fears (quia timet) I hold and do find that the declaration and injunctive relief (in 5&6) he seeks be and are hereby granted.
See DR. TUNJI BRAITHWAITE V. STANDARD CHARTER EDBANK 2011 (CA) CA/L/427/2011 (R)
Where the court held that where a claimant claims a quia timet injunction in tort it is founded on a motion of apprehension of a threatened violation of a right. Section 46 (1) of the 1999 constitution allows access to court in the circumstance. Such a violation or threatened violation of right confers the Applicant locus standi to sue quia timet (because he fears) for the protection of this right against its threat and imminent interference or erosion. Here in this case in exercising the court’s equitable powers/jurisdiction, see sections 13, 14 and 15 of the National Industrial Court Act 2006, I have considered the arguments of the parties and I remain firmly convinced that the claimants claim succeeds as I do not see how the Defendants would be prejudiced by the success of the claims, neither do I see what the Defendant could lose by the court granting the reliefs sought which are hereby, all granted.
Judgment is entered accordingly.
HON. JUSTICE E. D. E. ISELE