IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA (VIRTUAL)

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN ---- PRESIDING JUDGE

DATE: FRIDAY 6TH MARCH, 2026      SUIT NO: NICN/YEN/06/2025

BETWEEN:

BISHOP EBI ABIA                                                            --------- CLAIMANT

(Trading under the name & style of

The Bishop Interworld Motto Park Enterprise)

 

AND


 

  1. COMRADE EMINAH DINYOERINYU

           (The Chairman, National Union of Road Transport 

           Workers, Bayelsa Chapter).

  1. COMRADE OYINKURO EREBOR                                           DEFENDANTS

           (The Chairman Road Transport Employers Association    

            of Nigeria, Bayelsa Chapter).

  1. CHAIRMAN, YENAGOA LOCAL GOVERNMENT AREA
  2. MR. LONG LIFE PAUL ROBINSON

           (Chairman, Ekeki Park Management Committee).

 

JUDGMENT

  1. The Claimant commenced this suit by way of Originating Summons dated and filed on the 25th day of March, 2025, and submitted this single question for the determination of the court:

 

Whether or not by the joint interpretation of the provisions of section 40 of the 1999 Constitution of the Federal Republic of Nigeria as amended, section 1 and section 12 of the Trade Unions Act Cap T14, Laws of the Federation, 2006 and the Directive of the Executive Governor of Bayelsa State on the 31st day of December 2024, the 1st and 2nd Defendants are authorized to have vesting authorities to determine the rights of transport enterprises to operate within or outside Bayelsa State, where such transport enterprises are properly registered with the state Government under the Registration of Business Places Law of Bayelsa State Cap R3, Laws of Bayelsa State.

 

  1. The Claimant therefore claims the following reliefs against the Defendants: 

 

  1. A declaration of this Honourable Court, that the membership of the plaintiff to the 1st and 2nd Defendant Trade Unions is voluntary and not mandatory.

 

  1. A declaration of this Honourable Court that the plaintiff is empowered to carry out his trade of transportation in Bayelsa State, having been properly registered with the Corporate Affairs Commission and the Bayelsa State Register of Business Places, with or without his membership of the 1st and 2nd Defendant trade unions.

 

  1. A declaration of this Honourable Court that the business of transportation within the Bayelsa metropolis is not the exclusive monopoly of the 1st and 2nd Defendant trade unions in Bayelsa State.

 

  1. A declaration of this Honourable Court that the executive order/directive of the Executive Governor of Bayelsa State, Sen Douye Diri, moving all independent transport enterprises to operate in two central parks (Igbogene Central Transport Terminal & The Ekeki Motor Park) does not vest powers and authority on the 1st and 2nd Defendant trade unions to determine the rights of transport companies within the Yenagoa Metropolis, to engage in the business of transportation in Bayelsa State.

 

  1. A declaration of this Honourable Court that the designated parks (Igbogene Central Transport Terminal & The Ekeki Motor Park) wherein all transport enterprises were relocated to, by the executive order/directive of the Governor of Bayelsa State, does not belong to the 1st and 2nd Defendants trade unions.

 

  1. An Order of Perpetual Injunction, restraining the 1st and 2nd Defendants, their executives, privies, acolytes and anyone claiming under them or through them from restricting, intimidating and interrupting the peaceful co-existence of the claimant transport enterprise amongst other transport enterprises in the Bayelsa State Government designated parks (Igbogene Central Transport Terminal & The Ekeki Motor Park) for engaging transportation business within and outside the Yenagoa metropolis.

 

  1. An Order of this Honourable Court directing the 4th Defendant to allocate a space to the plaintiff in the Bayelsa State Government designated parks (Igbogene Central Transport Terminal & The Ekeki Motor Park) for the smooth running of the plaintiff’s transport trade.

 

  1. An Order of this Honourable Court directing the 1st and 2nd Defendant unions to allow the smooth operation of the plaintiff in a space to be created for him in the Bayelsa State Government designated parks (Igbogene Central Transport Terminal & The Ekeki Motor Park).

 

  1. An Order of this Honourable Court awarding the sum of One Hundred Million Naira (N100,000,000.00) each against the 1st and 2nd Defendants union in favour of the plaintiff for unlawfully intimidating, restraining, interrupting and restricting the plaintiff transport enterprise from carrying out his lawful transportation business in the parks designated by the Bayelsa State Government.

 

  1. An Order of this Honourable Court awarding the sum of Ten Million Naira only (N10,000,000.00) against the 1st and 2nd Defendants as cost of litigation expended by the plaintiff to initiate this suit for the declaration of his rights to run his business.

 

  1. In support of the Originating Summons is an affidavit of 36 paragraphs deposed to by Bishop Ebi Abia (the Claimant on record), as well as annexed documents marked exhibits BM 1 – BM 8.

 

  1. In compliance with the Rules of this Court, the Claimant filed along with the Originating Summons a Written Address wherein the claimant adopted and argued the single question for determination as the Issue for determination in the suit. The Issue for determination as crafted by the Claimant’s Counsel is: Whether or not by the joint interpretation of the provisions of section 40 of the 1999 Constitution of the Federal Republic of Nigeria as amended, section 1 and section 12 of the Trade Unions Act Cap T14, Laws of the Federation, 2006 and the Directive of the Executive Governor of Bayelsa State on the 31st day of December 2024, the 1st and 2nd Defendants are authorized to have vesting authorities to determine the rights of transport enterprises to operate within or outside Bayelsa State, where such transport enterprises are properly registered with the state Government under the Registration of Business Places Law of Bayelsa State Cap R3, Laws of Bayelsa State.

 

  1. In arguing the lone Issue, the Claimant’s Learned Counsel submitted that, by the clear provisions of section 40 of the Constitution, every individual is entitled to the right to freedom of association, and no individual shall be forced to be part of any association or union, relying on the case of F.R.N. V. Kanu (2024) 11 NWLR page 359, paras G-H (incomplete citation) which affirms the supremacy of the Constitution by virtue of section 1 (1) and (3) of the Constitution.

 

  1. That the Claimant is a juristic person entitled to the rights enshrined in the Constitution because once a company is incorporated under the relevant laws, it becomes a separate person from the individual members, and has the legal capacity to sue and be sued in its name. It may also own property in its own right, and its assets, liabilities, rights and obligations are distinct from that of its members. See section 814(1) and (3) of CAMA and the cases of New Res Int’l V. Oranusi (2011) 2 NWLR (Pt. 1230) 102 and Southbeach Co. Ltd V. Williams (2022) 8 NWLR page 182 paras E-F (incomplete citation). That by section 36 of CAMA, the certificate of incorporation is prima facie evidence that all the requirements of the Act with respect to registration and other incidental matters have been complied with, relying on the case of G&T Invest. Ltd. V. Will & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500.

 

  1. Learned Counsel reproduced the provisions of sections 1 and 26 of the Trade Unions Act and section 1 of the Bayelsa State Registration of Business Places Law, and posited that the 1st and 2nd defendants are trade unions, and that membership of a trade union by employees shall be voluntary, and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member. That once a company is registered in Bayelsa State pursuant to the Registration of Business Places Law, such a company can automatically carry out business without registering with any trade union like the 1st and 2nd Defendants. That the 1st and 2nd defendants have therefore erred in law by taking monopoly of transportation in the designated parks in Bayelsa State and restrict persons from carrying on their lawful businesses. The Court was urged to take judicial notice of the relevant laws in question pursuant to section 122 of the Evidence Act, relying on the case of Maduekwe V. Anambra State Govt (2024) 11 NWLR pages 400-401 paras. G-D.

 

  1. With respect to the claims for general damages, it was argued that, the 1st and 2nd defendants caused damage to the claimant by restricting the claimant from carrying out his lawful trade thereby causing him losses for months. That cost follows events, hence the reliefs for damages and cost of litigation should be granted. See Nitel Trustees Ltd V. Syndicate Inv. Holdings Ltd (2023) 5 NWLR pages 123 – 124, paras. G-B. That the award of general damages is squarely at the court’s discretion which is exercised on the basis of the evidence before the Court, relying on the case of Ezennaka V. C.O.P. Cross River State (2022) 18 NWLR page 417 paras. D-F. The Court was urged to enter judgment for the claimant and grant the reliefs in the suit.

 

  1.  In opposition to the Originating Summons, the 1st Defendant filed a Counter Affidavit of 7 paragraphs deposed to by Comrade Eminah Dinyoerinyu (the 1st Defendant on record) to which is annexed one document marked exhibit NURTW1 on the 14th day of May, 2025. In the Written Address filed in support of the Counter-Affidavit, the Learned Counsel to the 1st Defendant identified these two (2) Issues for the determination of the Court:

 

  1. Whether the directive of the Governor of Bayelsa State designating Ekeki park as intra-city/intra-state park confers any contractual right on the Claimant to have unregulated access to the Ekeki park to carry out his transportation business?

 

  1. Whether same directive confers any contractual obligation on the Yenagoa Local Government Council to admit any transport business operator to the Ekeki Motor Park without the right to do so on its own terms and conditions?

 

  1. In arguing the two Issues together, learned counsel submitted that, even though Government policies or directives are usually contained in official administrative documents (usually in documentary form), the Claimant failed to produce the said directive/policy issued by the Executive Governor of Bayelsa State before the Court. That oral evidence of the existence of a government decision or practice or fact of a public nature is legally inadmissible, relying on sections 124(1), 89(e), 90(1)(c) and 54 of the Evidence Act and the case of Satoil (Nig) Ltd V. Induction (Nig) Ltd (2021) 1 NWLR (Pt. 1774) 1 at 122-123, paras B-B and G-H. That exhibit BM4 being relied upon by the Claimant is a news report of the Government directive/policy referred to and not an official document containing the said directive or policy.

 

  1. That the directive of the Bayelsa State Governor for all parks to be moved to the Transport Terminal at Igbogene did not entitle the park owners to indiscriminately enter the premises to operate, but same was done on the basis of control and management by an authority which has been put in charge of the facility. That it is the formal allocation of loading and office spaces to their union that has enabled the NURTW to operate at the said Igbogene Transport Terminal till date. And it was also upon the directive and designation of Ekeki Motor Park as an intra-state/intra-city park that the 1st Defendant got formal admittance and permit to operate at the park from the Yenagoa Local Government Council as shown in exhibit NURTW1. That even the 2nd Defendant and the Bayelsa Transport Company did not enter the park arbitrarily to operate but with due permission and authority from the appropriate authority. That there is no contractual right inuring to the Claimant to gain unregulated access to the Ekeki Motor Park to carry out his transportation business by dint of the directive of the State Governor, and the claimant has no enforceable right in the circumstances of this case, relying on the case of Ebhota V. P.I.&P.D. Co. Ltd (2005) 15 NWLR (Pt. 948) 266 at 289, paras D-E.

 

  1. It was further submitted that, there is no contractual obligation on the Yenagoa Local Government Council to open its facility (the Ekeki Motor Park) to all and sundry transport operators to have unregulated access without obtaining the requisite permit or authority from the Local Government Council. That since the Ekeki park belongs to the Yenagoa Local Government Council, the Council has the right to determine how the facility would be used, and has therefore granted the 1st and 2nd defendants including the Bayelsa Transport Company the exclusive right to use the facility. That in law the owner of a property reserves exclusive right to use the property as he desires, relying on the case of Okpoko V. Hon. Minister of Environment, Housing & Urban Devt and Ors (2021) LPELR-53191(CA). That the claimant’s relief ‘g’ is not grantable because same will violate the rights of the Yenagoa Local Government Council since there is no contractual obligation on the Council to allocate a space to the claimant pursuant to the directive of the State Governor designating the Ekeki Motor Park as the intra-state/intra-city park. That a court should not lend itself to aid the perpetuation of illegality, relying on the case of S.D.C. Cem. (Nig) Ltd V. NAGELCO Ltd (2003) 4 NWLR (Pt. 811) 611 at 637, paras F-G.

 

  1. The Court was urged to resolve the two (2) Issues in favour of the 1st Defendant, and dismiss the suit.

 

  1. It is pertinent to note that at the hearing of the suit on the 9th day of December, 2025, the learned counsel to the 1st Defendant further submitted by way of adumbration that, exhibits BMR1 and BMR2 annexed to the claimant’s Further Affidavit filed on the 20th of May, 2025 should be discountenanced because they were made during the pendency of the suit, hence inadmissible in evidence. Reference was made to the case of Anagbado V. Faruk (2019) 1 NWLR (Pt. 1653) 292 at 312.

 

  1. It is apposite to note that, the Claimant filed a Further Affidavit of 22 paragraphs in response to the 1st defendant’s Counter Affidavit on the 20th May, 2025. Annexed to the Further Affidavit are documents marked exhibits BMR 1A, BMR 1, BMR 2, BMR 3 and BMR 4.

 

  1. The Learned Counsel to the Claimant also filed a Reply on Points of Law wherein is was submitted that having admitted the fact of the directive of the Governor of Bayelsa State in paragraphs 5(m)(i)(ii) of the Counter Affidavit, the 1st Defendant cannot turn around to deny same, as admitted facts need no further proof. The 1st defendant cannot approbate and reprobate at the same time. See Nig. Shipbuilders Ltd V. Tamuno (2024) 12 NWLR pages 186, paras. E-F, Aliero V. Saidu (2023) 16 NWLR page 119, paras. D-G, Sylvia V. INEC (2018) 18 NWLR (Pt. 1651) 310 and Ude V. Nwara (1993) 2 NWLR (Pt. 278) 638.

 

  1. That contrary to the submissions of the 1st defendant at paragraph 1.06 of the written address, the claimant does not seek a legal right against the Government of Bayelsa State over its policies but against the 1st and 2nd defendants for their highhandedness at the park as can be gleaned from exhibits BMR 2 and BMR 3. That the facts of the suit speak for themselves (res ipsa loquitor), hence the Court can draw inference from the facts, relying on the case of Ugbechi Nigeria Ltd and Anor V. Alhaji Lukeman Falke (2017) CA/J/81/2008 and Chud Verdical Co. Ltd V. Ifesinachi Industries Nig Ltd and Anor (2018) SC 449/2012.

 

  1. That apart from the directive of the Executive Governor of Bayelsa State, the 3rd and 4th Defendants have a working relationship with the claimant but only donated the right to supervise the loading turns of transport companies in the park to the 1st and 2nd defendants to avoid conflict. It is the same loading right that has been expanded unilaterally by the 1st and 2nd defendants to include a right to exclude transport companies from operating in the park. That someone with delegated authority cannot override the individual who originally delegated his authority which is expressed in the principle ‘delegatus non potest delegare. The delegate is expected to exercise the delegated power within the scope of the delegation, and cannot act beyond those boundaries to contradict the original instruction. See Ekpo V. Calabar Local Government Council (1993) 3 NWLR (Pt. 281) 324. That by exhibit BMR 2, the extent of the 3rd defendant’s authority delegated to the 1st and 2nd defendants does not extend to excluding any transport company from operating in the park. The Court was urged to discountenance all the submissions of the 1st defendant and grant the reliefs in the suit.

 

  1. In opposition to the Originating Summons, the 2nd Defendant filed a 42 paragraphed Counter Affidavit deposed to by Comrade Dorgu Jeremiah (the State Deputy Chairman (Administration) on the 26th day of May, 2025. Annexed to the Counter Affidavit are four (4) exhibits marked exhibits RTEAN 1 – RTEAN 4. In compliance with the Rules of Court, the 2nd defendant filed a Written Address wherein these two Issues were submitted for the Court’s determination:

 

  1. Whether there is substantial dispute of fact from the Claimant’s affidavit and 2nd Defendant’s counter affidavit which renders the instance suit an improper case for originating summons?

 

  1. Whether from the totality of the affidavit evidence before the Court and the state of the law, the Claimant is not entitled to any of the reliefs claimed in the originating summons; and the Honourable Court is entitled to resolve the sole question for determination set out in the originating summons against the Claimant and dismiss the instant suit, while granting the counter claim?

 

  1. It was submitted on Issue one (1) that, originating summons is not a proper procedure for commencement of an action with substantial dispute of facts, relying on the provisions of Order 3 Rules 3 and 17 of the Rules of this Honourable Court 2017 and the cases of Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423(SC), Amasike V. Registrar General CAC (2010) 13 NWLR (Pt. 211) (CA) and Olayo V. Alegbe (1983) 2 SCNLR 35 at 67.

 

  1. That from the averments in the claimant’s affidavit in support of the Originating Summons and the 2nd Defendant’s Counter Affidavit, there is serious conflict of facts which takes the suit out of the realm of originating summons. The Court was urged to resolve Issue one (1) in favour of the 2nd Defendant, convert the suit to Complaint and order parties to file relevant pleadings in the suit.

 

  1. With respect to Issue two (2), the Learned Counsel to the 2nd Defendant posited that while it is true that membership of trade unions is voluntary pursuant to the constitutional right of freedom of association, in the instant case the 2nd defendant has not compelled the Claimant to join its trade union (RTEAN). That having admitted in paragraph 31 of the claimant’s affidavit in support of the originating summons that he has been a lawful member of RTEAN which the 2nd defendant admitted in paragraph 26 of his Counter Affidavit, the question of the claimant’s right of association or his membership of the 2nd defendant (RTEAN) is not in issue, relying on the case of Unity Bank Plc V. Bouari (2008) 2-3 SC (Pt. II) 1.

 

  1. That contrary to the claimant’s submissions that upon registration of his business name same became a separate or distinct legal entity, in law a business name upon registration is regarded together with the proprietor as one and the same person unlike a company which is a separate legal entity different from the owner. See FCDA V. Unique Future Leaders Int’l Ltd (2014) 17 NWLR (Pt. 1436) 231. That the registered name of a company or business can be ascertained from the Certificate of Incorporation, and by exhibit BM1 annexed to the affidavit in support of the originating summons, the name registered with the CAC by the Claimant is ‘The Bishop Interworld Motto Enterprise’ with the objects of automobile sales, Import and Export Services and General Contractors. That the business of motor park operation is not among the objects of the business name. See Njemanze V. Shell BP Port Harcourt (1966) LPELR-25295(SC).

 

  1. With respect to the claimant’s contention that having registered under the Bayelsa State Registration of Business Places Law he is automatically allowed to carry out business without registering with the 1st and 2nd defendants, it was argued that the authority to establish, maintain and regulate motor parks in Yenagoa Metropolis including the Ekeki Motor Park is the Yenagoa Local Government Council pursuant to section 36 of the Local Government Law, Cap. L10, Laws of Bayelsa State 2006. It was pursuant to the powers that the Local Government Council executed the Agreement for the management and control of the Ekeki Motor Park dated 19th February, 2025 (exhibit RTEAN 2). That exhibit RTEAN 2 therefore prevails over exhibit RTEAN 4 which is inadmissible by virtue of section 83(3) of the Evidence Act as same was prepared during the pendency of the suit. See Anagbado V. Faruk (2018) LPELR-44909(SC) and Oseni-Yekini and Anor V. Olegbade (2014) LPELR-41101(CA), where it was held that documents made by an interested party during the pendency of an action or in contemplation of litigation are inadmissible.

 

  1. That the claimant who does not have any vehicle of his own with which to engage in the transportation business could not have made any profit or lost any profit as claimed by him. That the Claimant has failed to discharge the legal burden or onus of proof placed on him under section 136(1) of the Evidence Act, relying on the cases of Eguridu and Anor V. Ughakpoteni (2023) LPELR-60864(CA) and FBN Ltd V. Cacod Dynamics Services Ltd (2021) LPELR-56717(CA). The Court was urged to dismiss the claimant’s case.

 

  1. With respect to the 2nd Defendant’s Counter Claim, it was posited that a defendant can counter claim in an originating summons, relying on the case of Transocean Support Services (Nig) Ltd and Ors V. NIMASA and Anor (2019) LPELR-48163. That RTEAN being a voluntary organization, it is independent over its internal affairs and can take any decision it considers appropriate against its members, and such decision cannot be challenged. See Echendu V. Ugonna and Ors (2022) LPELR-58890(CA), Mbanefo V. Molokwu and Ors (2008) LPELR-3696(CA) and Aguma V. APC and Ors (2021) LPELR-55927(SC). The Court was urged to resolve Issue two (2) in favour of the 2nd Defendant, dismiss the suit and grant the 2nd Defendant’s Counter Claim.

 

  1. It is pertinent to note that the Claimant filed a 32 paragraphed Further Affidavit deposed to by the claimant on the 30th day of May, 2025. Annexed to the Further Affidavit are three exhibits marked exhibits A, BMR 1 and BMR 2. The Learned Counsel to the Claimant also filed a Reply on Points of Law on the same 30th May, 2025 wherein it was further argued that, since the existence of a directive of the Governor was admitted by both the 1st and 2nd defendants in their counter affidavits, same cannot be denied by the 2nd defendant in his written address as facts admitted need no further proof, relying on the cases of Nig. Shipbuilders Ltd V. Tamuno (2024) 12 NWLR pag186 paras E-F, Aliero V. Saidu (2023) 16 NWLR page 119 paras D-G and page 121 paras E-H and section 123 of the Evidence Act.

 

  1. That the 2nd defendant cannot now turn around to claim the existence of substantial dispute of facts in the suit. That the authorization of the registration of business places by the laws of Bayelsa State and the authority of the Yenagoa Local Government to give license to transport companies operating in the Local Government Area is one that is of common knowledge and needs no proof pursuant to section 124(1)(b) of the Evidence Act.

 

  1. That the letter written by the Chairman of the Local Government Council is admissible under section 14(b), 15(a-g), 20, 22 and 23 of the Evidence Act because irrespective of the circumstances under which a document is obtained, same will be admissible unless the court is of the opinion that the desirability of admitting the evidence is outweighed by the undesirability of admitting same. That for a document made during the pendency of a suit to be inadmissible, same must have been made by a person interested when proceedings are pending or anticipated involving a dispute as to any fact which the statement tends to establish, relying on the cases of Barkway V. South Wales Transport Co. Ltd (1949) 1 KB 54 and Bearmans Ltd V. Metropolitan Police District Receiver (1961) 1 All ELR 634.

 

  1. That where however the interest of the maker of a document is purely official or as a servant or employee without a direct interest of a personal nature, the document is not excluded pursuant to the provision of section 91(3) now section 83(3) of the Evidence Act. That the 3rd defendant has nothing to gain or lose from the instant proceedings, nor personal interest in the instant proceedings but is only joined as a party to the suit in the official capacity he occupies. That the letter of the 3rd defendant is therefore admissible in the interest of justice. See Macfoy V. Chola (2023) 17 NWLR page 207, paras E-H.

 

  1. That the principle of res ipsa loquitor applies because by exhibits BMR2 and BMR3 the Local Government Council did not give any exclusive powers to the 1st and 2nd defendants unions and the claimant has an operational permit from the Local Government Council, relying on the case of Ugbechi Nigeria Ltd and Anor V. Alhaji Lukeman Falke (2017) CA/J/81/2008 and Chud Vertical Co. Ltd V. Ifesinachi Industries Nig Ltd and Anor (2018) SC/449/2012. That in law a delegate is expected to exercise the delegated power within the scope of the delegation and cannot act beyond those boundaries to contradict the original instruction, relying on the case of Ekpo V. Calabar Local Government Council (1993) 3 NWLR (Pt. 281) 324. The Court was urged to grant the reliefs in the suit, and dismiss the 2nd defendant’s counter claim.

 

  1. It may be pertinent to note that the 2nd defendant filed a 16 paragraphed Further Counter Affidavit deposed to by the 2nd defendant to which are annexed exhibits RTEAN A – RTEAN E on the 19th day of June, 2025. While the claimant’s counsel submitted by way of adumbration that the Further Counter Affidavit of the 2nd defendant is incompetent and should be struck out because it was not filed within time as provided in Order 15 Rules 5 and 6 of the Rules of this Honourable Court 2017, the contention of the Learned Counsel to the 2nd defendant is that the said process is competent because it is a response to the new facts raised by the claimant, relying on the case of Coscharis Tech V. Geoffrey and Anor (2018) LPELR-49322(CA).

 

  1. I have seen that the Claimant’s Further Affidavit filed on the 20th day of May, 2025 was served on the 2nd Defendant on the 5th day of June, 2025 while the 2nd defendant filed the Further Counter Affidavit on the 19th day of June, 2025. I have also considered the provisions of Order 17 Rule 1 (10) and (11) of the Rules of this Honourable Court 2017, and seen that the Claimant raised new facts and issues in the Further Affidavit by pleading new exhibits A, BMR1 and BMR2. The 2nd defendant is entitled to challenge such new facts and issues hence the Further Counter Affidavit filed on the 19th day of June, 2025. In the case of Terzungwe Samson Abeh V. The Inspector General of Police and Ors (2021) LPELR-54856(CA) at pages 22 – 24, the appellate Court quoted the decision in the case of Zenith Bank Plc V. Bankolans Investment Ltd (2011) LPELR-CA/L/946/08 thus:

“I am therefore of the humble view that where new facts are introduced in a further affidavit, the opposing party is entitled to file a further counter affidavit especially when hearing is yet to commence. In other words, a further affidavit cannot therefore be said to be the last permissible process as erroneously held by the learned trial Judge.

It is true that the rules did not expressly provide for the filing of further counter affidavit. However, the same rules did not also state that further counter affidavit cannot be filed in any circumstance. While I agree with respondents’ counsel that Courts should not encourage filing of processes endlessly, I am however, of the humble view that every case has to be considered according to its given set of facts and circumstances. See further U.T.C. Nig. Ltd vs. Pamotei (1989) 2 NWLR Pt. 103, pg. 244; Adamu vs. Akukalia (2005) 11 NWLR Pt. 936, pg. 263; and Ariyo vs. Julius Berger Nig. Ltd. (2016) 11 CAN Pt. 1, pg. 1, ratio 3, 32.

Clearly there should be an end to the filing of processes and thus to litigation. However, since the applicant was the first to veer off the usual practice by raising new issues in his further affidavit, the respondents ought to be allowed a bite at the cherry by allowing them file a further counter affidavit as they have done. In the circumstances of this case and interest of justice and fairness, the respondents were entitled to react to those new issues vide their further counter affidavit. Moreover, the applicant did not show in any way he was injured by the filing of the respondents’ further counter affidavit.”

 

  1. I therefore hold that, the Further Counter Affidavit filed by the 2nd Defendant on the 19th day of June, 2025 is competent and same shall be relied upon in this suit.

 

  1. In response to the Originating Summons, the 3rd and 4th Defendants filed a Composite Counter Affidavit of 17 paragraphs deposed to by the 4th Defendant on the 30th day of May, 2025. Annexed to the said Counter Affidavit is one document marked exhibit NURTW 1. The Learned Counsel to the 3rd and 4th Defendants filed a written address in support of the Counter Affidavit wherein this lone Issue was identified for the Court’s determination: Whether or not there exist any controversy warranting the instant suit.
  2. It was posited on the lone Issue that the facts leading to the instant suit are preventable because the directive of the Governor of Bayelsa State is sacrosanct being an executive order that should be obeyed. That the Local Government Council is the only authorized body to restrict any transport company from operating in the Ekeki Motor Park as the park is owned by the Yenagoa Local Government Council. That both the Claimant and the 1st and 2nd defendants are recognized by the Local Government Council, and they should co-exist in the Local Government owned Ekeki motor park to avoid any unnecessary acrimony. That the authority delegated by the Local Government Council to the 1st and 2nd defendants to manage loading of vehicles at the park is not an exclusive authority and can be withdrawn, relying on the case of Ekpo V. Calabar Local Government Council (1993) 3 NWLR (Part 281) 324, where it was held that any act done beyond a delegated authority is null and void.

 

COURT’S DECISION:

 

  1.  Having considered the processes filed by the parties, this court shall determine this suit on the basis of the Claimant’s sole question which is the sole Issue submitted by the Claimant for determination, and the 2nd Defendant’s Issue one which challenges the competence of the suit. The Issues for determination are: 

 

  1. Whether there is substantial dispute of fact from the Claimant’s affidavit and 2nd Defendant’s counter affidavit which renders the instant suit an improper case for originating summons?

 

  1. Whether or not by the joint interpretation of the provisions of section 40 of the 1999 Constitution of the Federal Republic of Nigeria as amended, section 1 and section 12 of the Trade Unions Act Cap T14, Laws of the Federation, 2006 and the Directive of the Executive Governor of Bayelsa State on the 31st day of December 2024, the 1st and 2nd Defendants are authorized to have vesting authorities to determine the rights of transport enterprises to operate within or outside Bayelsa State, where such transport enterprises are properly registered with the state Government under the Registration of Business Places Law of Bayelsa State Cap R3, Laws of Bayelsa State.

 

  1. The contention of the 2nd defendant on Issue one (1) is that since from the claimant’s affidavit in support of the Originating Summons there are substantial disputes of facts, the suit was improperly commenced by way of Originating Summons, and the Court should order parties to file pleadings in the suit.

 

  1. The law is as rightly argued by Learned Counsel to the 2nd defendant that Originating Summons procedure is principally for matters relating to the interpretation of any Constitution, enactment, agreement or any other instrument, and where there are no substantial disputes or issues of facts. See Order 3 Rules 3 and 17 of the Rules of this Court, 2017. In the case of Yombe Dauka and Others V. Kongo Komi (2023) LPELR-60732(CA), the Court of Appeal per Shuaibu, JCA held as follows on when originating summons is appropriate to commence an action at pages 6-7 paras. B-C of the report, “The key issue is the propriety or otherwise of commencing the suit at the lower Court vide Originating Summons. Parties are ad idem that for Originating Summons to be an inappropriate originating process, the dispute on fact must be substantial, affecting the live issue in the matter. Where the dispute on the facts are peripheral, not material to the live issues, the action can be sustained by the originating summons. This is so because there can hardly be case without facts. It is facts that make a case and dispute in facts that give rise to litigation. See Tanko V. Modi (2019) 8 NWLR (Pt. 1675) page 387. By and large, substantial dispute imputes a real material dispute or controversy of considerable importance as opposed to an imaginary, peripheral dispute. The question now is the dispute before the lower Court substantial which could only be resolved upon calling oral evidence based on pleadings? In determining whether a suit brought by an originating summons raises substantial dispute of facts, it is the nature of the claim and facts, deposed to in the affidavit in support of the Originating Summons that is to be considered. Thus mere filing of a counter Affidavit to oppose the claims in an originating summons does not make the facts contentious and proceedings hostile in nature. Ossai V. Wakwah (2006) 4 NWLR (Pt. 969) 208, F.G.N. V. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162 and Jimoh V. Aleshinloye II (2014) 15 NWLR (Pt. 1430) 277.”

 

  1. I have looked at the facts deposed to by the Claimant in the affidavit in support of the instant Originating Summons and seen that the claimant is simply asking the Court to determine whether by the provisions of section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), sections 1 and 12 of the Trade Unions Act and the provisions of the Registration of Business Places Law of Bayelsa State, the 1st and 2nd defendants can determine the rights of transport enterprises operating within or outside Bayelsa State. What the claimant therefore seeks from the Court is the interpretation of the laws submitted for interpretation with respect to the statutory powers of the 1st and 2nd defendants to determine the rights of others to engage in the transportation of goods and services in Bayelsa State.

 

  1. It is obvious from the affidavits of the Claimant that the facts are not really contentious as to require oral evidence in the suit. Even if they are contentious, I hold the considered view that the disputes of facts are not so substantial such that they cannot be resolved vide affidavit evidence/Originating Summons. In the circumstance, Issue One (1) is resolved in favour of the Claimant. The Court shall now proceed to determine Issue two (2) relating to the merit of the Originating Summons.

 

  1. It is however apposite to resolve the contention of the 1st and 2nd defendants that exhibits BMR1 and BMR2 annexed to the Claimant’s Further Affidavit filed on the 30th day of May, 2025 are inadmissible in evidence because they were made during the pendency of the instant suit.

 

  1. The law is trite that any evidence or document obtained during the pendency of a suit by an interested person is inadmissible and cannot be relied upon by a court of law. This is the intendment of section 83(3) of the Evidence Act (2011) which state that, “nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

See  the cases of U.T.C. Nigeria Plc V. Alhaji Abdul Wahab Lawal (2013) LPELR-23002(SC) and Samuel Friday Nwogu V. Federal Republic of Nigeria (2024) LPELR-73202(CA).

 

  1. I have seen that while the claimant filed the suit on the 25th day of March, 2025, the Claimant’s Counsel wrote exhibit BMR1 on the 15th of May, 2025. There is no doubt that the claimant’s Counsel wrote the letter on behalf of the claimant who is an interested party to the instant suit. The clamant has a personal interest in the suit and its outcome. It is therefore disingenuous of learned counsel to have written to the 3rd defendant seeking clarification over issues that have been tabled before the court for determination. Whatever clarifications he needed from the 3rd defendant should have been sought and obtained before commencing the suit, and not to do so after submitting the issues before the court for interpretation and determination. I therefore agree with the 1st and 2nd Defendants that both exhibits BMR1 and BMR2 made during the pendency of the suit are inadmissible in evidence. The said exhibits are hereby discountenanced and rejected. See also the case of Surf Oil and Gas and Anor V. Ecobank Nigeria Plc (2023) LPELR-60240(CA), where it was held as follows:

“It is trite that document made in the course of proceeding in the Court for the purpose of the pending suit by interested parties are inadmissible in law by virtue of Section 91(3) of the Evidence Act and the case of M.W.T. (Nig) Ltd. v. P.T.F. (2007) 15 NWLR (Pt. 1058) 451 at 495 to 496 Para F-A.”

 

  1. I have seen from the lone question submitted for the Court’s determination and the state of the Claimant’s pleadings that the claimant is seeking the interpretation of section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), sections 1 and 12 of the Trade Unions Act and the provisions of the Registration of Business Places Law of Bayelsa State on whether the Claimant is at liberty not to join the 1st and 2nd Defendants trade unions and to operate his transport business free of intimidation having registered under the Registration of Business Places Law of Bayelsa State.

 

  1. It may therefore be apposite to reproduce the provisions of the laws submitted by the claimant for the purposes of clarity:

 

Section 40 of the 1999 Constitution (as amended) provides thus:

 

“40. Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:

 

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

 

Section 1 of the Trade Unions Act Cap. T14 LFN provides as follows:

 

  1. Meaning of “trade union” in this Act
    1. In this Act –

“trade union” means any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether its purposes do or do not include the provision of benefits for its members.

  1. The fact that a combination of workers or employers has purposes or powers other than the purpose of regulating the terms and conditions of employment or workers shall not prevent it from being registered under this Act; and accordingly, subject to the provisions of this Act as to the application of funds for political purposes, a trade union may apply its funds for any lawful purpose for the time being authorised by its rules, including in particular, if so authorised, that of providing benefits for its members.
  2. A trade union within the meaning of this Act shall not be treated as having been formed by reason only of –
    1. Any agreement between an employer and persons employed by him as to the terms and conditions of that employment; or
    2. Any agreement for the instruction of any person in a profession, trade or handicraft; or
    3. Any agreement between partners as to their own business or any trading agreement between employers; or
    4. Any agreement imposing restrictions in connection with the sale of the goodwill of a business.”

 

Section 12 of the Trade Unions Act provides thus:

 

“12. Membership of trade union not to be restricted on discriminatory grounds.

  1. A person who is otherwise eligible for membership of a particular trade union shall not be refused admission to membership of that union by reason only that he is of a particular community, tribe, place of origin, religion or political opinion.
  2. If any person is refused admission to membership of a trade union in contravention of subsection (1) of this section, the union and every official thereof shall be guilty of an offence against this Act.
  3. If any provision in the rules of a trade union is inconsistent with subsection (1) of this section, that provision shall, to the extent of the inconsistency, be void.
  4. Notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member.

 

Section 3 (not section 1 as cited by the claimant’s counsel) of the Registration of Business Places Law Cap. R3, Laws of Bayelsa State 2006, provides as follows:

 

“3. Registration of business places

  1. Subject to the provisions of this Law there shall be registered in the manner prescribed the place of business of every company, firm or individual carrying on any business in the State:’

Provided that such registration shall not be required-

  1. Where the business is carried on by a trustee in bankruptcy under any court order or by the Administrator-General or any person acting under or appointed by the Administrator-General or Public Trustee by virtue of any powers conferred on him by any law; or
  2. Where the business is carried on directly by any Government in Nigeria or by any Government Agency.
  1. Power of Governor to exempt

The Governor may by notice signed by him and published in the Gazette exempt from registration under this Law the business place of any company, firm or individual carrying on business in the State.”

 

  1. There is no doubt that both the 1st and 2nd defendants are sued in their official capacities as representing the National Union of Road Transport Workers (NURTW) Bayelsa State Chapter and the Road Transport Employers Association of Nigeria (RTEAN) Bayelsa State Chapter. These are duly registered trade unions as the National Union of Road Transport Workers (NURTW) is listed as No. 16 in the List of Re-Structured Trade Unions Affiliated to the Central Labour Organisation in Part A of the Third Schedule of the Trade Unions Act, with the jurisdictional scope of all workers engaged in transportation of passengers and goods by road, excluding the transportation of petroleum by road and transportation undertaken by self-employed persons. The Road Transport Employers Association of Nigeria (RTEAN) on the other hand is listed as No. 29 of Part C of the Third Schedule of the Trade Unions Act.

 

  1. While the law is trite as rightly argued by the Claimant’s counsel that the right to freedom to peaceful assembly and association in section 40 of the Constitution is sacrosanct, and no individual is to be forced to be part of any association or trade union, I have however seen that the Claimant is not a trade union but a business name registered under the Companies and Allied Matters Act as can be gleaned from the Certificate of Registration of Business Name exhibit MB1 annexed to the affidavit in support of the originating summons. The provisions of section 12 of the Trade Unions Act prohibiting discrimination which is the fulcrum of the claimant’s case is to the effect that a person who is otherwise eligible for membership of a trade union shall not be refused admission to membership by reason only that he is of a community, tribe, place of origin, religion or political opinion. The case of the claimant is not that he is qualified to be registered with the 1st and 2nd defendants but he was refused registration or admission on any of the discriminatory grounds listed in the Act. The allegation that the 1st and 2nd defendants have taken monopoly of the Ekeki Motor Park and have allegedly restricted the claimant from doing business in the park has nothing to do with denial of membership of the trade unions to bring the provisions of section 12 of the Trade Unions Act into play in this suit. To further buttress this point, sub-section (4) of section 12 of the Trade Unions Act talks about membership of a trade union by employees being voluntary, and that no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member. The emphasis here is ‘membership of a trade union by employees’, and there is no indication that the Claimant is an employee to take coverage under the said provisions. Since the Claimant is neither a trade union, an employer nor an employee, and the instant suit does not relate to denial of membership of a trade union on any discriminatory ground, but for the permission to conduct businesses at the Ekeki Motor Park unhindered, I hold the considered view that the claimant cannot take shelter under the provisions of sections 1 and 12 of the Trade Unions Act notwithstanding the provisions of section 40 of the 1999 Constitution (as amended) relating to right to peaceful assembly and association.

 

  1. It is also pertinent to note that even though by exhibit BM3 dated 1st June, 2019 annexed to the affidavit in support of the originating summons, the claimant not being a trade union was affiliated to 2nd defendant trade union, I have however seen that the affiliation has been withdrawn by the 2nd defendant as the claimant refused to work under the 2nd defendant at the Ekeki Motor Park. These facts were also pleaded at paragraphs 7 – 24 of the 2nd defendant’s Counter Affidavit, and exhibit RTEAN2 annexed to the 2nd Defendant’s Counter Affidavit is the letter of withdrawal of affiliation dated 21st February, 2025. Having not been affiliated with any trade union under the transport sector, I do not know how the Claimant can undertake trade union activities considering the provisions of section 2 (1) of the Trade Unions Act which prohibits the carrying out of trade union activities by unregistered trade unions. The jurisdiction of this Honourable Court as circumscribed by section 254C (1) of the 1999 Constitution (as amended) does not extend to associations registered under the Companies and Allied Matters Act like the claimant except if such association is either sued by a trade union as a defendant or the suit by the association as a claimant relates to the registration of such association by the Registrar of Trade Unions. Since the issues in contention do not relate to registration, and the Registrar of Trade Unions is not a party to the suit, the claimant clearly lacks the locus standi to approach this Honourable Court for redress. I so find and hold. See the case of AG Enugu State V. National Association of Government General Medical and Dental Practitioners (NAGGMDP) & 1 Anor (2014) 47 NLLR (Pt. 153) 427, where it was held thus at page 468 paragraphs B – F of the report: “It is not in doubt that the defendants are not a trade union. It is equally not in doubt that they are engaged in services for, or in connection with, hospitals and the treatment of the sick as per paragraph 2(d) of the First Schedule to the Trade Disputes Act – the defendants having admitted this fact in paragraphs 2 and 3 of their statement of defence. The argument of the defendants that the provisions of the Trade Disputes Act must be read as separate from those from the Trade Unions Act cannot be tenable because the Trade Unions Act defines the term essential services by reference to the Trade Disputes Act. Equally not tenable is the argument of the defendants that because they are not a trade union, they are not bound by the Trade Unions Act. This is because the provisions of the Trade Unions Act are meant to regulate the activities of not only bodies registered as trade unions but those who are not so registered but are keen on doing things that only registered trade unions can do such as the defendants. So when the defendants acknowledged in paragraph 10 of their statement of defence that the 2nd defendant vide a letter of 2nd December, 2010 gave 21 days’ notice of strike to the claimant, it is an admission of the fact of doing a thing that only registered trade unions are permitted to do. Not only is this unlawful, it is criminal.”

 

  1. In the final result, I hold that since the claimant’s affidavits in support of the originating summons have no correlation with the provisions of sections 1 and 12 of the Trade Unions Act submitted for interpretation, he has failed to prove his case before the Court. The lone question submitted by the claimant which is the lone Issue for determination is hereby resolved against the Claimant. The suit lacks merit and is hereby dismissed for want of proof. 

 

  1. With respect to the 2nd Defendant’s Counter-Claim, it may be apposite to restate the legal position that a Counter-Claim which is also a cross-action is governed by the same rules of pleadings as applicable to Statement of Facts. Such counter-claim is an independent and separate suit which is merely added to the main case for the purpose of convenience and expeditious trial. The onus is therefore on the Counter-Claimants who allege to prove their case by producing sufficient, cogent and verifiable evidence to the satisfaction of the Court. See Michael Sunday Oroja & Ors. V. Ebenezer Ilo Adeniyi & Ors (2017) LPELR-41985(SC) and Ornguga Adieku & Ors. V. Torhile Tarchir (2021) LPELR-53300(CA).

 

  1. I have however seen that the 2nd defendant is asking for a declaration that the withdrawal of the Claimant’s affiliation by the 2nd defendant/counter claimant is lawful, an order of perpetual injunction restraining the claimant/defendant to the counterclaim from parading himself as an affiliate of the 2nd Defendant (RTEAN) and the sum of N100,000,000.00 as general damages against the claimant for the embarrassment, expences and inconveniences occasioned by the claimant’s suit, as well as the sum of N5, 000, 000.00 as cost of this suit.

 

  1. The principal relief one (1) of the Counter Claim is a declaratory relief which the law expects the counter-claimant to prove and not to rely on any weakness in the case of the Defendant to the Counter-Claim. The point being made is that this relief which is declaratory in nature cannot even be granted in the face of an admission by the defendant to the counter claim or default of pleadings. See the cases of Engr. Nelson Oseloka Onubogu V. Ifeyinwa Anazonwu and Ors (2023) 17 NWLR (Pt. 1914) 425, Godfrey Ifediora and Ors V. Eugene Okafor and Ors (2019) 16 NWLR (Pt. 1698) 322 and Alhaji Shehu Yusuf V. Bem Tilley Gyado and Others (2023) LPELR-60678(CA), where the Court of Appeal per Ibrahim Ali Andenyangtso, J.C.A. held thus on proof of a declaratory relief at pages 16-17, paras. C-D of the report, “The main claim being a declaratory relief, the 1st Respondent was bound to prove his case on the balance of probability and by preponderance of evidence. He has to do this by cogent, credible and plausible evidence and must succeed on the strength of his case and not on the weakness of the adversary. See A.G. River State VS. A.G. Bayelsa (2013) 3 NWLR (PT. 1340) 123 (SC), NWOKIDU VS. OKANU (2010) 3 NWLR (PT. 1181) 362, DANTATA VS. MOHAMMED (2000) 7 NWLR (PT. 664) 176. In the case of DA’APE & ANOR VS. MUSA & ORS. (2019) LPELR-48846 (CA) P. 18 PARAS A, this Court per Abiriyi JCA held as follows: “The Appellants sought before the Tribunal declaratory reliefs. Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. A declaratory relief will be granted where the party seeking it is entitled to the relief in the fullest meaning of the word. The person seeking the declaratory relief must plead and prove the claim for declaratory relief without relying on the evidence called by the defendant. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the Plaintiff’s claim. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C. (Nig) Ltd (1993) LPELR-864 SC page 64-65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693, Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184 CA and Mbodan vs. Dabai (2019) LPELR-46739 CA.”

 

  1. Having pored over the affidavit in support of the Counter Claim, I am not satisfied that the 2nd defendant/counter-claimant has proved or established the counter claim as required by law. Having withdrawn the claimant’s affiliation, it is not for this Court to pronounce on the legality of the withdrawal, and the 2nd Defendant/counter claimant has not referred the court to any statutory or case law authority in that regard. 

The Counter Claim is also bound to fail, and same is accordingly dismissed for want of proof.

 

Judgment is entered accordingly. The parties are to bear their costs.

 

 

Hon. Justice P. I. Hamman

Presiding Judge

 

REPRESENTATION:

D. O. S. Abila with Samuel Abila, Michael Onyia and S. G. Munemune for the Claimant.

C. F. Famateigha for the 1st Defendant.

Peter-Great Temedie with T. V. Garr for the 2nd Defendant.

E. E. Wilcox for the 3rd and 4th Defendants.