IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

 

DATE:      MAY 22, 2019                                                       Suit No: NICN/YEN/07/2018

 

 

BETWEEN:

 

The Registered Trustees of the

Iron and Steel Senior Staff Association

Of Nigeria (ISSSAN) (Bayelsa State Chapter)

1.      Perekekeme Ignatius

(Chairman ISSSAN Bayelsa State)                                     

2.      Comrade Samuel Adaga

(State Secretary)                                                                             CLAIMANTS

3.      Comrade Francis King Edolor

(State Treasurer)

 

(For themselves as Executive and Representing

Iron and Steel Senior Staff Association of

Nigeria Bayelsa State Chapter ISSSAN)

 

AND

 

1.      The Registered Trustee Of Nigeria Welders

Association (Bayelsa State Chapter)

2.      Mathew Alero

3.      Boboye Ayakeme                                                                            1ST SET OF

4.      Samuel Ekpedi                                                                                  DEFENDANTS

5.      Amangala Azibalua                                                            

(For themselves as Executives and Representing

Nigeria Welders Association Bayelsa State Chapter)

           

 

 

AND

 

6.      The Registered Trustees Of Fitters

Senior Staff Association of Nigeria

(FISSAN Bayelsa State Chapter)

7.      Abaye Ambaiowei

(President)               

8.      Morrister Idebia                                                                               2ND SET OF

(General Secretary)                                                                                    DEFENDANTS

9.      Samara Ataria

(State Chairman)

(For themselves as Executives and Representing

 Fitters Senior Staff Association of Nigeria, Bayelsa

State Chapter)

             

AND

 

10. The Government of Bayelsa State

11. The Attorney General Bayelsa State

12. Hon. Markson Fefegha

(Commissioner for Mineral Resources                                      3RD SET OF

Bayelsa State)                                                                                DEFENDANTS

13. Hon. Branoke Stanley

(The Director General Office of

Bayelsa State Partnership Agency)

 

REPRESENTATION

G.U.J Wohane Esq holding the brief of W.O. Amaechi Esq. for the Claimants.

Amber Prosper Esq holding the brief of Amos Atim Esq. For the 1st, 3rd and 5th set of Defendants.

Rotina Orubo Esq with Dim Bonus Esq and S.C Okoro Esq for the 3rd set of Defendants.

 

 

 

 

RULING

The Claimant instituted this action vide a Complaint dated the 29th day of January, 2018 and filed on the same date. The Claimant’s claims against the Defendants are as follows:

1.     A DECLARATION of this Honourable court that the 1st Claimant having been duly registered under the provisions of the Trade Unions Act Cap T.14 Laws of the Federation of Nigeria 2004 as amended by the Trade Unions (Amendment) Act, 2005 as a Trade Union, has the power and capacity to function as such and act as a trade union within Bayelsa State and beyond.

 

2.     A DECLARATION of this Honourable court that by virtue of the Trade Union Act Cap T.14 Laws of the Federation of Nigeria, 2004, as amended the 1st Claimant has the powers, capacity and authority to enter into negotiations in relation to Trade Union related matters, activities and issues connecting to and incidental, or related to employments, welfare of its members, jobs, pipe welding, pipe fittings activities, fabrications, specialized welding, and other specialized fabrications and construction work with companies operating in Bayelsa State and beyond.

 

3.     A FURTHER DECLARATION of this Honourable court that the 2nd – 4th Claimants being the Executive members and leaders of the 1st Claimant in Bayelsa State has the powers and capacity to negotiate and discuss with companies operating in Bayelsa in all matters relating to, connecting and incidental to fabrications pipe welding, structural pipe fittings, employment of its members, contract, collection of dues and implementing the best practice and other professionalized skilled fabrications, welding and fittings works.

 

4.     A FURTHER DECLARATION of this Honourable court that the 1st Set of Defendants having been registered under the land (perpetual succession) Act Cap 98 and having also registered under Part C of the Companies and Allied Matters Act 1990 with the Corporate Affairs Commission were not registered under the Trade Union Act Cap T.14 of 2004 as amended by Trade Union and cannot function as a Trade Union in Bayelsa State and beyond.

 

5.     A FURTHER DECLARATION of this Honourable court that the 2nd set of Defendants though a Trade Union have no define area of operation in line with the Trade Union Acts and cannot claim to have control over Welders and Fitters in Bayelsa State.

 

6.     A FURTHER DECLARATION of this Honourable court compelling and directing the companies operating in Bayelsa State to negotiate, discuss, deal and transact only with the Claimants in Bayelsa State on matters and issues relating to, connected or incidental to employment of professionalized and skilled welders and fitters, contracts of fabrications and structural fittings, collection of dues and welfare packages and other related jobs arising from their operations in Bayelsa State.

 

7.     Perpetual injunctions restraining the 10, 11, 12 and 13 Defendants either by themselves, agents, servants, privies or howsoever called from super imposing themselves with the activities of the Claimants, holding out themselves as professional welders and fitters sections (sic) employments or jobs or works meant for the Claimants, receiving or collecting dues or welfare packages meant for Claimants, meddling and disturbing the affairs of the Claimants or negotiating, transacting and discussing with companies operating within Bayelsa State and its environs or and sending or recommending Welders and Fitters names to companies to work within Bayelsa State and beyond.

 

8.     A FURTHER PERPETUAL INJUNCTION restricting the 1st set of Defendants, their agents, representatives, assigns and their members or however called their members from entering into negotiation with companies operating in Bayelsa in relation to Trade Union related activities, employment, jobs, collecting dues from the said companies in Bayelsa State.

 

9.     A FURTHER PERPETUAL INJUNCTION restricting the 1st set of Defendants and the 2nd set of Defendants from throwing themselves or meddling into the Claimants negotiations with companies in Bayelsa State and beyond.

 

 

THE THIRD SET OF DEFENDANTS NOTICE OF PRELIMINARY OBJECTION

The third set of Defendants filed a Notice of Preliminary Objection dated the 26th day of October, 2018 and filed on the 29th day of October, 2018. The application is brought pursuant to Order 17 Rule 1 of the National Industrial Court Rules 2017 and under the inherent jurisdiction of this Honourable court. The third set of Defendants are praying for the following:

 

1.     AN ORDER of this Honourable court to dismiss and/or strike out this suit together with all the processes for want of jurisdiction.

 

2.     AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable court may deem fit to make in the circumstances.

 

The grounds upon which this application is made are as follows:

 

a.     Whether the Claimants as constituted is a juristic person that can sue and be sued as provided under the law?

 

b.     Whether the 1st, 2nd, 3rd and 4th Claimants have locus standi to institute this action.

 

 

c.      Whether the Claimants have disclosed a reasonable cause of action against the 3rd set of Defendants.

 

d.     Whether the Complaint on the Originating Process which does not have the stamp and seal of a Legal Practitioner affixed to it is not defective.

 

In support of this application, the applicant filed a written address. In the written address the applicant formulated four (4) issues for determination as follows:

 

a.     Whether the Claimants as constituted is a juristic person that can sue and be sued as provided under the law?

 

b.     Whether the 1st, 2nd, 3rd and 4th Claimants have locus standi to institute this action.

 

c.      Whether the Claimants have disclosed a reasonable cause of action against the 3rd set of Defendant.

 

d.     Whether the complaint on the Originating Process which does not have the stamp and seal of a Legal Practitioner affixed to it is not defective.

 

On the first issue whether the Claimants as constituted is a juristic person that can sue and be sued as provided under the law? Learned counsel submit the law is settled that all persons (natural or artificial) not subject to any legal disability can sue or be sued. Refers to OBASANJO VRS BUHARI (2003) 17 NWLR (PT 580) P. 1. It is also trite law that only juristic persons can be competently preceded against in a court of law. The courts have made it clear that the categories of legal persons are not closed and that the principal jural units to which the law ascribes legal personality are:

 

a.     Human beings

 

b.     Companies incorporated under the various companies act

 

 

c.      Corporated sole with perpetual succession

 

d.     Trade unions

 

 

e.      Partnership

 

f.       Friendly societies.

 

Referred to the cases of FAWEHIMI VRS N.B.A & ORS (NO.2) NWLR PT 105 PT. 155; AKAS VRS MANAGER AND RECEIVER (2001) 8 NWLR (PT 715) 468 AT 437 RATIO 1 AND 2; IYKE MEDICAL MERCHANDISE VRS PREIZER INC. & ANOR (2001) 10 NWLR (PT. 722) 540 @ 543 RATIO 2.

 

Learned counsel argued that the law is that right to sue and be sued borders on the jurisdiction of the court. Refers to ATAGUBA & CO VRS GURA NIG LTD (2005) 8 NWLR (PT. 927) 429.

 

Learned counsel submit that the Claimants on record are not juristic person. By the annexure to the suit filed and the affidavit in support of the Originating Summons, it is shown that the first Claimant was incorporated under Part C of the Companies and Allied Matters Act (CAMA). The legal incidence of a company incorporated under Part A of CAMA is to sue and be sued in its incorporated name. However, this is not the position with respect to organizations incorporated under Part C of CAMA in which case they can only sue or be sued in the name of its incorporated trustees. Referred to Section 679 (1) of CAMA. From the above statutory provision, it is clear that the legal personality with respect to Part C of the CAMA has been donated to the Trustee or Trustees to sue or be sued in the registered name of the organization. Referred to AGBROKO & ANOR VRS THE DIVINE CHURCH OF GOD & ORS (2013) LPELR – 20884 (CA). He argued that it is trite law that it is the duty of the court to uphold statutory provisions and to give effect to same. Refers to DAPLANLONG VRS DARIYE (2007) 4 SC (PT. III) 118.

 

Learned counsel submit that it is important to state that when an objection is raised before a court challenging its jurisdiction, the courts simply rely on the Writ of Summons and Statement of Claim or the Originating Summons or particulars of claim. Refers to NIKE FISHING CO. LTD VRS LAVINA CORP (2008) 6 – 7 SC (PT. 4) P. 200 @ P. 212 PARAS 5 – 10. It is therefore the duty of the Claimants to bring to the court a party whose presence is not crucial to the resolution of the case but also a person who can sue and be sued. The law is quite settled that the question of whether a party is a juristic or juridical person is strictly a question of law and cannot be conferred by the acquiescence of any other party. Referred to the cases of ONYEKWULUNNE VRS NGWE (1997) 7 NWLR (PT. 512) P. 250 @ 271 PARAS G – A, LION OF AFRICA INSURANCE COMPANY LTD VRS MR & MRS E.A ESAN (1999) 8 NWLR (PT. 614) 197 – 198 RATIO 1.

 

Learned counsel submit that the Claimants/Respondents lack the legal capacity to institute the substantive suit. The Registered Trustee of Iron and Steel Senior Staff Association of Nigeria, Bayelsa State Chapter as claimed by the Claimants does not exist as seen in the publication published by the then National President attached herein as Exhibit 301, and the 2nd – 4th Claimants are not members of ISSAN, they are only self acclaimed ISSAN Bayelsa State Chapter members who are not employees of any manufacturing and fabrication of Basic Iron and Steel Company, they can therefore not place something on nothing and expect it to stand. Its trite law that only the Registered Trustees of an Association are entitled or have the legal capacity to represent and have the locus standi to bring an action before the court of law on behalf of the Association. The question is are the Claimants in this suit the Registered Trustees of Manufacturing and Fabrication of Basic Iron and Steel Company? Learned counsel answered in the negative, he argued that judging from the available facts nothing shows that the Claimants/Respondents are the Registered Trustee of the Manufacturing and Fabrication of Basic Iron and Steel Company and therefore have no locus standi to institute this action. They are self acclaimed Executives of ISSAN Bayelsa State Chapter which is obviously not in existence, the piece of Exhibits attached to the affidavit in support proves otherwise of their legal status to institute this action. Learned counsel submit that the Claimants are not the proper party to institute this action and urged this Honourable court to decline jurisdiction and consequently dismiss this suit.

 

On issue two, whether from the facts before this Honourable court, the 1st, 2nd, 3rd and 4th Claimants have the locus standi to institute this action. Learned counsel submit that a party instituting an action in court must have a locus standi, he must have the legal capacity to invoke the judicial power entrenched in section 6 (6) of the 1999 constitution of the Federal Republic of Nigeria (as amended). Refers to LIBA VRS KOKO (2017) 11 NWLR (PT. 1576) 335 AT 355 – 356 PARAS H – C, JUKOK INT’L LTD VRS DIAMOND BANK PLC (2016) 6 NWLR (PT. 1507) 55 AT 94 PARA A.

 

Learned counsel submit that the Claimants’ Statement of Claim does not disclose action that is justiciable against the 3rd set of Defendants, where they did not hijack or interfere with the activities of the Claimants only a mere invitation to restore peace and the Claimants failed to show in their Statement of Claim that the intervention of the 12th and 13th Defendant is a continuous act, according to paragraph 6 of their Statement of Claim the only complain is the purported recommendation letter, which invariably was for the sole purpose of peace mission and that the 13th Defendants settling of the warring associations was the problem. He submits that the Claimants do not have any justiciable action against the 3rd set of Defendants and also no dispute against them. Refers to A.G FEDERATION VRS A.G LAGOS STATE (2017) 40 NWLR (PT. 1566) 20 @ 55 PARA E – H.

 

It is the contention of learned counsel that the Claimants/Respondents lack the legal capacity to institute the substantive suit, the Registered Trustees of Iron and Steel Senior Staff Association of Nigeria Bayelsa State Chapter does not exist as seen in the publication published by the then National President attached as Exhibit 301 and the 2nd – 4th Claimants are not members of ISSAN this can be seen in the annexed documents attached as Exhibt 301, they are only self acclaimed ISSAN Bayelsa State Chapter members who are not employees of any manufacturing and fabrication of Basic Iron and Steel Company. He argued that it is trite in corporate law that only the Registered Trustees of an Association that are entitled or have the legal capacity to represent and have the locus standi to bring an action on behalf of the Association. Learned counsel submit that the Claimants are not proper party to institute the action and urged the court to decline jurisdiction and dismiss this action.

 

On issue three, whether the Claimants have disclosed a reasonable cause of action against the 3rd set of Defendants. Learned counsel submit that a  reasonable cause of action means a cause of action with some chances of success, when only the allegation in the Statement of Claim are considered, this was the decision of the Supreme Court in the case of SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD & ANOR VRS X.M FEDERAL LIMITED & ANOR. He argued that the Claimants have not shown any cause of action in their Statement of Claim owing to the fact that in paragraphs 8 (9) (b) (c) and part of Paragraph 9 of their Statement of Claim they expressly stated that there was serious crisis amongst the associations (FISSAN, NWA and ISSAN) which even led to the arrest of some persons and led to the blocking of oil pipeline forcing DON JUSTINE NIG LTD to stop work. It was in the midst of this that Dun Justine Nig. Limited invited the Hon. Commissioner for Mineral Resources and Hon. Braboke to intervene in terms of crisis by virtue of the various offices. This was explicitly admitted by the Claimants in their paragraph 9 (b) which shows that there was crisis amongst the various association and the associations involved could not handle the situation and is within the jurisdictions of the 12th and 13th Defendants that is why they were invited to intervene and bring peace to enable the associations and oil companies work under conducive atmosphere which they did and retired back to their other duties.

 

It is the contention of learned counsel that in that period of crisis, money was paid to the Director General’s Office of Bayelsa State Partnership Agency, because the associations were in supremacy tussle for an onward transfer to the various associations including the Claimants which was confirmed by the Claimants in paragraphs 8 (b) of their Statement of Claim, the recommendation was done for the sole purpose of peace and with the full consent of the Claimants. Learned counsel submit that the Claimants have disclosed no reasonable cause of action at all against the 3rd set of Defendants as the 3rd set of Defendants only intervene to bring peace and not to hijack the activities of the Claimants as they claim, and so this entire suit should be dismissed. He submits that a cause of action is the aggregate of facts designating and constituting a subject matter. Refers to MILAD BENUE STATE & ORS VRS CAPTAIN CLEMENT ABAYILO (2001) FWLR (PT. 45) P. 002 AT 615. The law is that there must be lis inter parties – an existing controversy between the disputants. Refers to OKORO & ANOR VRS GOVERNOR OF IMO STATE & ORS (2000) (WLR) (PT. 77) P 932 AT 944, 939 and 940. There is no demonstrated controversy between the Claimants and the 3rd set of Defendants. He argued that the Statement of Claim has not shown any real controversy between the parties, the 12th and 13th Defendants were invited and money was paid and same distributed to all associations including the Claimants (ISSAN). Learned counsel submits that the suit is frivolous against the 3rd set of Defendants. Refers to IDOKO VRS OGBEIKWU (2003) FWLR (PT. 149) P. 1530. He argued that there is no legal basis for filing of this suit against the 3rd set of Defendants since they did not hijack the activities of the Claimants but rather work for the good and benefit of all. Cited the case of LABODE VRS OTUBO (2001) FWLR 9 (PT. 43) P. 207. Learned counsel submit that the entire action be dismissed for being frivolous and vexatious.

 

On issue four whether an Originating Process will not carry with it the consequence of rendering such legal documents incompetent for want of stamp and seal. Learned counsel referred the Honourable court to Rule 10 (1) Rules of Professional Conduct for Legal Practitioners 2007 which requires a lawyer acting in his capacity as a Legal Practitioner or Adviser of any Government Department or Ministry or Corporation who signs or files a legal document to affix any such document a seal and stamp approved by the Nigerian Bar Association the documents so signed or filed shall be deemed not to have been properly filed or signed. Refers to ALL PROGRESSIVE CONGRESS (APC) VRS GENERAL BELLO SARKIN YAKI SC/722/15, MEGA PROGRESSIVE PEOPLE PARTY (MPP) VRS INEC & ORS SC 1655/2015. Learned counsel submit that the Claimants counsel having failed to affix the NBA stamp and seal on his Originating Summons as provided for in the Rules of Professional Conduct for Legal Practitioners 2007 renders the Claimants Originating Summons incompetent as there is nothing before this Honourable court against the 3rd set of Defendants.

 

Finally, learned counsel urged the Honourable court to dismiss the entire action of the Claimant/Respondents on the grounds that the Claimants/Respondents suit does not disclose any reasonable cause of action nor does it have the locus standi to sue the 3rd set of Defendants.

 

 

CLAIMANT’S COUNTER AFFIDAVIT IN OPPOSITION TO THE 3RD SET OF DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION.

 

In response to the Preliminary Objection filed by the 3rd set of Defendants. The Claimants/Respondents filed a 10 paragraphs Counter Affidavit dated the 10th day of December, 2018 and filed on the same date. Attached to the Counter Affidavit is one annexure marked as “Exhibit A” and a Written Address. In the written address the Claimants formulated three issues for determination as follows:

 

i.                   Whether the Claimants lacks the locus standi to bring this suit.

 

ii.                 Whether the Claimants Originating Process or Complaint does not discloses reasonable cause of action.

 

 

iii.              Whether the suit is incompetent for want of stamp and seal of the Legal Practitioner who settled the pleadings as endorsed on the Originating Process.

 

On issue one, whether the Claimants lack the locus standi to bring this suit. Learned counsel submits that it is trite law that it is the Statement of Facts of the Claimants as endorsed on the Complaint that determines the jurisdiction of the court to entertain a matter. Thus in determining the merit or otherwise of a preliminary objection of this nature, it is only the complaint and the Statement of Facts filed by the Claimants that the court is entitled to look at for the purpose of determining the competence of the claim and the locus standi of the Claimants viz a viz the jurisdiction of the court to hear the case. Refers to WOHEREM VRS EMEREUWA (2004) 13 NWLR (PT. 830) 399 AT 419; F.G.N VRS OSHIOMOLE (2004) 14 WRN No @ 133, THOMAS VRS OLUSOFOYE (1986) 1 NWLR (PT. 18) 669 @ 671, ADESOKUN VRS ADEGOROLU (1999) 3 SCN 1 @ 15. Learned counsel urged this Honourable court to consider the issues arising for determination in this application in the light of the admitted facts in the Statement of Facts of the Claimants and come to the conclusion that the Preliminary Objection is baseless, frivolous and misconceived. Learned counsel invited the court to note the following issues which will assist her in coming to a just decision in this application.

 

1.     The Claimants/Respondents are bonafide members of Iron and Steel Senior Staff Association of Nigeria.

 

2.     The Claimants/Respondents are registered financial members of ISSAN.

 

 

3.     That the Claimants brought this action for themselves and as Executives members of ISSAN.

 

4.     That the Registered Trustees of Iron and Steel Senior Staff Association of Nigeria is a party to this suit and in fact the 1st Claimant who is distinct in law and has capacity to bring this action.

 

5.     That the 1st Claimant is a registered Trade Union in Nigeria under the Trade Union Act and by strict adherence to the process enshrined under the Trade Union Act, the 1st Claimant and its members has locus standi to institute and/or sustain the suit.

 

In respect of issue one, learned counsel submit that by virtue of the registration of Iron and Steel Senior Staff Association by Registrar of Trade Unions in Nigeria, the union automatically acquires the capacity and legal right to sue and be sued in its corporate name as such by its trustees. He argued that the 2nd – 4th Claimants on record in this case have identified themselves in paragraph 1 of their Statement of Fact as “Chairman State Secretary and State Treasurer of the Union.” This specific identity as “Trustee” affords them the locus standi to institute this action, therefore the Defendants/Applicants contention that the Claimants have no locus standi to initiate this action cannot be correct as the Claimants brought this claim in a dual capacity as seen in the endorsement of the parties on the complaint and paragraph 1 of the Statement of Facts. The Claimants are suing “for themselves as registered financial members of Iron and Steel Senior Staff Association of Nigeria.” Learned counsel contend that even if the 2nd – 4th Claimants are adjudged to have no locus standi to sue for and on behalf of the union of which they are trustees, which is not conceded the 2nd – 4th Claimants are still entitled to sustain this claim in their personal individual capacities as financial members of the union whose civil rights and obligation are in issue in this case. There is nothing which can be construed or interpreted to take away this right of access to the court by aggrieved members of the union which is protected under section 6 (5) of the 1999 constitution of Nigeria as amended. Refers to ADEDIRAN VRS INTERLAND TRANSPORT LTD (1991) 9 NWLR (PT. 214) 155 @ 180 PARA C – E.

 

Learned counsel submit that the Claimants on record, both as individual members and as registered trustees representing Iron and Steel Senior Staff Association of Nigeria, have the locus standi to institute this action against the Defendants/Applicants. The subject matter of this suit is all about the wrongful acts of the Defendants in interfering with the Claimants right to function as a union. These are matters for which both the union and 2nd – 4th Claimants are invested with the capacity and locus standi to ventilate in court of law. Relied on the case of LADEJBI & ORS VRS OGUNTAYO & ORS (2004) 9 – 12 SCM (PT. 1) PG 125, 126. Learned counsel further submit that by the provisions of section 6 (6) of the constitution of the Federal Republic of Nigeria 1999 as amended a person who is in imminent danger of any conduct of an adverse party has locus standi to commence an action. A person who has locus standi not only because he is connected or in close proximity with the suit, but have right to litigation outside him, where he feels that the action will directly affect his legal rights and obligations and to his detriment. He contends that it will be an aberration for the Defendants/Applicants to contend that the claimants have no locus standi as to seek to take away a constitutional provided right of the claimants to bring an action before a court where their civil rights are as take.

 

On issue two, Learned counsel submit that the suit of the Claimants is not an abuse of court process, for the Defendants suit in Port Harcourt Division of this court is not in all fores with the present suit in this court. Learned counsel contends that cause of action is a fact which if proved would entitle a plaintiff to a remedy against a defendant. Referred to BELLO VRS A.G OYO STATE (1986) 5 NWLR (PT. 45) 828. The Claimant’s suit establish reasonable cause of action against the 3rd set of Defendants. Paragraphs 3, 8, a, b, c, d and paragraph 9, a, b, c all shows reasonable cause of action against the 3rd set of Defendants/Applicants. Refers to OGBIMI VRS OLOLO (1993) 7 NWLR (PT. 304) 128. Learned counsel contend that paragraphs 10, a, b of the Claimant’s Statement of Facts shows with clarity reasonable cause of action against the 3rd set of Defendants who are amongst the other Defendants. Refers to paragraphs 3 of the Claimant Statement of Fact which shows reasonable cause of action against the 3rd set of Defendants and in effect this Honourable court have jurisdiction to hear and determine the suit. Refers to OKONWA VRS MILITARY GOV. IMO STATE (1997) 6 NWLR (PT. 507) P. 154 @ 167. Learned counsel argued that it is settled law that when an objection is raised that the Statement of Claim does not disclose a reasonable cause of action it is the Statement of Fact that has to be examined to ascertain whether or not there is a reasonable cause of action. He argued that the Claimant’s Statement of Facts as endorsed in their Originating process before this Honourable court, there is enough reasonable cause of action to warrant this court to assume jurisdiction on this matter. Refers COOKEY VRS TOMBO (2005) 22 NSCQR 411 @ P. 422 PARAS D – E.

 

On issue three, learned counsel submit that the none affixing of the stamp and seal of the Claimant’s counsel who settled their pleadings does not make the originating process incompetent, it is only a mere irregularity which can be cured by affixing of the stamp and the seal of the counsel or by the production of evidence which in this case is the bank teller evidencing payment. The Claimants counsel had already paid for the stamp and seal on the 16/2/2018 and was not issued with the stamp and seal by the NBA Port Harcourt Branch reason being it is not in stock which is not the claimant’s counsel’s fault. Learned counsel contend that by the production of the bank teller evidencing payments as in the instant case and attaching it on the originating process and/or other court process and filed by the claimants counsel, it automatically cures the irregularity and make the court process as filed by the Claimants Counsel regular and competent thus with this position the claimants originating processes before this Honourable court is competent and thereby making the court to assume jurisdiction on it.

 

Finally, learned counsel urged this Honourable Court to resolve all the issues for determination in the negative and dismiss the Preliminary Objection of the Defendants/Applicants for being misconceived and with substantial cost. The 3rd set of defendants did not filed any reply on point of law, and other defendants did not filed any response with regards to this application.

 

 

COURT DECISION

 

I have carefully read and understood all the processes filed by the learned counsel to the 3rd set of defendants/Applicants and that of the claimants/Respondents each canvassing both on point of law and of facts. The crux of this application as filed by the 3rd set of defendants is that, the claimants as constituted are not jusristic persons and as such lack the locus standi to institute this action. And that the suit failed to disclosed any reasonable cause of action against the applicants. Also the complaint and other accompanying processes are defective reason being that same does not have the stamp and seal of a legal practitioner.

In other to effectively and effectually determine this application, I adopted the issues formulated by the applicants with little modifications as follows:-

a)     Whether the claimants as constituted are juristic persons that can sue and be sued as provided under the law. And if the answer is in the affirmative, whether this suit as constituted confers the claimants the locus standi to institute this action.

b)    Whether the complaint and other originating processes which does not have the stamp and seal of a legal practitioner affixed to it is not defective. And if the answer is in the negative, whether the claimants have disclosed a reasonable cause of action against the 3rd set of defendants/applicants.

On the first issue of whether the Claimants as constituted are juristic persons that can sue and be sued, and if the answer is in the affirmative, whether this suit as constituted confers the claimants the locus standi to institute this action. It is of legal importance to note that before any court of law determines or adjudicate on a cause or matter, the court must be competent and must always have the requisite jurisdiction to adjudicate on the matter. It is trite that commencement of an action with the competent parties vests the requisite jurisdiction on the court to effectively adjudicate on the matter. In other words for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent Plaintiff and a competent Defendant. And as general principle, only natural persons, that is human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. See ATAGUBA & CO VRS GURA NIG. LTD (2005) ALL FWLR (PT. 265) 1219 S.C; GOV. KWARA STATE VRS LAWAL (2007)13 NWLR (PT. 1051) PG 347 AT 379 PARA B-C. Consequently, where either of the parties is not a legal person. The action is liable to be struck out as being incompetent. This is because an action can only be maintained against a juristic person. See ATAGUBA & CO VRS GURA NIG. LTD (Supra); NWOKEDI VRS R.T.A. LTD (2002) 6 NWLR (PT. 762) at 181.

 

Having said all these, it is the contention of the Applicants that the first Claimant was incorporated under part C of CAMA like in the instance case can only sue or be sued in the name of the incorporated trustees, referred to section 679 (1) of CAMA. But looking at the statement of facts and complaint one can see that the 2nd, 3rd and 4th claimants are registered financial members of ISSSAN. And that they brought this action for themselves and also as executive members of ISSSAN. And that ISSAN is a registered Trade Union in Nigeria under the trade union act. Infact its registered as No. 31 part C, appendix X of the trade union act cap T14 LFN. See paragraph 2 (a) and (b) and 5, of the statement of facts.

 

From my own understanding, the applicant’s main issue is with the 1st claimant, the Registered Trustees of Iron and Steel Senior Staff Association of Nigeria (ISSSAN) (Bayelsa Chapter) whom counsel to the applicants contends that was registered under part C of CAMA, And as such only the Registered Trustees can institute an action on its behalf. But by paragraph 1 of the statement of facts, And also as argued by the learned counsel to the claimants, counsel contends that the 1st Claimant is a registered trade union under the Trade Union Act Cap T14 LFN, 2004. But by looking at the certificate of registration of the 1st Defendant dated 13th day of February, 1981one can see that the certificate of registration bears the name of the Iron and Steel Senior Staff Association of Nigeria and not as Registered Trustees of ISSSAN. And also there is nothing to show that an association known as registered trustees of ISSSAN was incorporated under Part C of CAMA apart from registering ISSSAN as Trade Union. But even at that, the 2nd, 3rd and 4th Claimants being them natural persons and also registered financial members of ISSSAN and also the executive members of the Bayelsa State Chapter, can institute this action on behalf of ISSSAN. And on the face of the originating processes it is indicated that the 2nd, 3rd and 4th Claimants have instituted this action for themselves as executive and representing ISSSAN Bayelsa State Chapter. And in the case of PRIZER INCORPORATED & ANOR VRS PROF. IDRIS MOHAMMED (2013) 16 NWLR (PT.1379) at 155 it was held that the party incorrectly named can be corrected but not where the mistake is of identity. See also OMISORE VRS AREGBESOLA & ORS (2015) 15 NWLR (PT.1482) 205.

 

In view of the foregoing it is my ardent belief that the 2nd, 3rd and 4th Claimants being them natural persons and registered financial members of the ISSSAN can bring this action on behalf of ISSSAN, Bayelsa State Chapter. I so hold.

 

Having answered the first leg of this issue in affirmative, I will not find it difficult in ascertaining whether the claimants have the locus standi to institute this action. The term locus standi denotes to legal capacity to institute legal proceedings in a court of law. It is the right of a party to appear and be heard on a question before the court. In order to have locus standi to commence an action a person must have sufficient interest in the action as well as show that his legal rights or obligations have been or are in danger of being infringed. See MAKINDE VRS ORION ENGR. SERVICES (U.K) LTD (2014) 11 NWLR (PT. 1471) PG 1; PAM VRS MOHAMMED (2005) 16 NWLR (PT 1112) PG. 1; CHARLES VRS GOV., ONDO STATE (2013) 2 NWLR PG. 294.

 

In determining if a party has the locus standi to institute an action, resource must be made to the originating processes filed. By looking at the complaints and the statement of facts the 2nd, 3rd and 4th Claimants are executives and registered financial members of ISSSAN.  And there is a dispute as to the jurisdictional scope between ISSSAN (1st Claimant) and the 1st and 2nd set of Defendants. And it was as a result of that dispute that the 3rd set of Defendants/Applicants now intervened so as to avert the dispute which the Claimants felt the 3rd set of Defendants have no right to act or intervene in Trade Union disputes. And the Claimants having felt that their legal rights and obligations are in danger now decided to institute this action so as to protect same. See Paragraphs 2 (a) (b), 3, 4 (a) (b), 5, 6, 7 (a), 8 (a-d), 9 (a-c), 10, 12 (a-i), of the statement of facts.

 

In view of the foregoing facts, I resolved the first issue for determination in favour of the Claimants/Respondents and holds that the claimants have the juristic competence or personality to institute this action and they equally have the locus standi to institute this action. And I so hold.

 

On second issue on whether the complaints and other originating processes which does not bear or have the stamp or seal of a legal practitioner affixed to it is not defective. And if the answer is in the negative, whether the Claimants/Respondents have disclosed a reasonable cause of action against the 3rd set of Defendants/Applicants. There is no any doubt about it that by Rule 10 (1) of the Rules of Professional Conduct of Legal Practitioners 2007 which requires a lawyer acting in his capacity as a legal Practitioner or Adviser of any Government Department, Ministry or Corporation who signs or filed a legal document to affix any such document a seal approved by the Nigeria Bar Association. And failure to comply with this provision deemed the said document not be properly filed or signed. But does that Ipso facto renders this suit incompetent? On this issue, the supreme court has settled the position in the case of NYESOM VRS PETERSIDE & ORS (2016) LPELR – 40036 (SC) where it was held as follows:-

         

          with regards to the lack of NBA stamp and seal on the position, I refer to the recent decision of this court in Gen. Bello Sarkin Yari v Senator        Abubakar Atiku Bagudu in SC. 722/2015 delivered on 13/11/2015when this        court held that the failure to affix the approved seal and stamp of the NBA       on a process does not reder the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming    order.”

 

The authorities of TODAY ATMS CARS LTD v LASACO ASSURANCE PLC & ANOR (2016) LPELR-41260 (CA); ADEWALE & ANOR v ADEOLA & ORS (2015) LPELR-25972 (CA) and GEN. BELLO SARKIN YAKI v SENATOR ABUBAKAR ATIKU BAGUDU & ORS (2015) LPELR-25721 all support the position above stated. The failure to affix NBA stamp and seal does not render the process null and void, rather is an irregularity which can be remedies by a Motion on Notice for extension of time and deeming order to regularize such irregularity.

 

The Claimants’ Counsel annexed an Access Bank teller and payment receipt dated 21st February 2018 as exhibit stating that he had applied for the seal but has not been issued. Although it is no fault of his that his stamp is yet to be issued, he is required to attach print out of such payment to his process instead of attaching same as an exhibit. See the dictum of OGAKWU J. C. A. in TODAY’S CARS LTD VRS LASACO ASS. PLC (2016) LPELR 41260 (CA). Also the Claimant’s Counsel having filed a Motion for extension of time within which to regularize his processes dated 4th December, 2018 and filed on the 10th December, 2018 which same was moved and granted on the 14th February, 2019, then I can conveniently say that the originating processes are competent and by extension the suit is not defective. I so hold.

 

On the second leg of the second issue for determination as to whether the Claimants/Respondents have disclosed a reasonable cause of action against the 3rd set of Defendants/Applicants, a cause of action is the factual situation which a Plaintiff relies upon to support his claim, recognized by the law as give rise to a substantive right capable of being claimed or enforced against the Defendants. The yardstick is that the factual situation must, however, constitute the essential ingredients of an enforceable right as claimed. See the case of NICON INSURANCE CORPORATION VS OLOWOFOYEKU (2006) 5 NWLR (Pt. 973) 244 C.A; and ASABORO VS PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (Pt. 971) 595 C.A. And in other to determine whether or not a suit discloses a cause of action, and relief sought, the courts are required to examine the averments in the pleadings and see if they disclose cause of an action. Once a statement of claim raises some issue of law or fact calling for determination by the court, the mere fact that the case is weak and not likely to succeed is not ground to strike it out. Thus, a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claim the Defendant is required to meet. See NICON INSURANCE CORPORATION vs OLOWOFOYEKU (SUPRA).

 

Having said all these, a cursory look at the complaint and the statement of facts (originating processes) one can see that there is a dispute with regards to the jurisdictional scope between the 1st claimant and the 1st and 2nd set of Defendants. And it was as a result of that dispute that the 3rd set of Defendants/Applicants intervened so as to avert the dispute which the Claimants/Respondents felt that the 3rd set of defendants have no right to act on issues which borders on Trade Union disputes. That the 3rd set of defendants have no right to mediate into the affairs of the Trade Unions. See paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 of the Statement of Facts. Therefore, it is not right to say that this suit failed to disclosed any reasonable cause of action against the 3rd set of Defendants/Applicants. I so hold. I resolved the second issue for determination in favour of the Claimants/Applicants and hold that the originating processes filed before this Court are competent and that the suit disclosed a reasonable cause of action against the 3rd set of Defendants/Applicants. Before I draw the curtain let me briefly comment about an unknown procedure adopted by the Claimants/Respondents when replying to this application. The Preliminary Objection filed by the 3rd set of Defendants/Applicants is purely on point of law. But to my dismay, the 2nd Claimants/Respondents deposed to a 10 paragraphs counter affidavit in opposition to the notice of Preliminary Objection filed by the 3rd set of Defendants/Applicants dated 10th December, 2018. I wonder which depositions or averments he is trying to counter when there is none. You can not put something on nothing and expect it to stand, it will certainly collapse. See U.A.C vs MCFOY.  The Counter Affidavit can not stand on its own; as such same is hereby discountenanced.

 

In view of the foregoing reasons enumerated ab-initio I resolve all the issues in favour of the Claimants/Respondents and holds that this court has the jurisdictional vires or competence to preside over this matter having been properly filed. The Preliminary Objection is hereby dismissed. I declined to award any cost.

 

Ruling is entered accordingly.

 

 

 

 

 

_________________________________

HON. JUSTICE BASHAR A. ALKALI

Presiding Judge