IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 26^TH FEBRUARY, 2026                                             SUIT NO: NICN/KN/15/2024

 

BETWEEN:

 

UNION OF TIPPER AND QUARRY EMPLOYERS

OF NIGERIA (KANO STATE CHAPTER)     ……………               CLAIMANT

 

AND

 

1.      ADO UMAR SANTAR-LUNGU(Chairman)

2.       MURTALA DAHIRU(Sola)

3.      INUSA MUKHTAR (Dan Inu)                                                DEFENDANTS

4.      IDRIS UMAR (Idi yakuza)

5.      MALAMI (secretary, Ungogo)

(1^st -5^th Defendants sued on behalf of KANO STATE TIPPER

DRIVERS ASSOCIATION (K.S.T.D.A)

 

REPRESENTATION:

 

E. O. EKAUN FOR THE CLAIMANT

ABDULRAHMAN MUKTAR ABDULLAHI FOR THE DEFENDANT

 

JUDGMENT

 

On 12^th March, 2024, the Claimant filed an Originating Summons against the Defendant praying for the determination of the following questions:

 

1.      Having regards to the clear, lucid and unambiguous provisions of Sections 1, 2 and 4 of the Trade Unions Act (as amended) (2005), Exhibit A and Rule 3 of Exhibit B Vis-a-Vis the circumstances of this case, whether the defendant’s act of compulsory or forceful issuance of tickets to drivers of trucks/tippers at quarry sites in Kano is not ultra vires and violation of the jurisdictional scope of the claimant?

 

2.      Considering the clear and express provisions of section 1, 2 and 4 of the Trade Union Act (as amended), Exhibit A and Rule 3 of Exhibit B Vis-a-Vis the circumstances of this case, whether it is not illegal, wrongful, and unlawful for the defendants, their servants, privies, agents or anyone acting on its behalf not being a registered trade union to interfere with the claimant’s jurisdictional scope of unionization of drivers tippers/trucks at quarry and issuance of tickets to drivers of tippers/trucks at quarry sites in Kano?

 

3.      Considering the clear and express provisions of section 1, 2 and 4 of the Trade Union Act (as amended) Vis-a-Vis the circumstances of this case, whether it is not illegal, wrongful, and unlawful for the defendants, their servants, privies, agents or anyone acting on its behalf not being a registered trade union to parade themselves as a Union?

 

In the determination of these questions, the Claimant sought for the following Reliefs:

 

1.     A DECLARATION that the compulsory or forceful issuance of tickets by the defendants, their servants, privies, agents or anyone acting on its behalf  to drivers of tippers/trucks at quarry sites in Kano is unlawful, illegal, ultra vires and violation of the jurisdictional scope and powers of the Claimant union.

2.     A DECLARATION that the defendant not being a registered or recognized trade union cannot interfere with the jurisdictional scope of the claimants by compulsion of members of the claimant’s union to join the association and forcefully issue tickets to members of the union as purported members of the association.

3.     A DECLARATION that the defendant, their servants, privies, agents or anyone acting on its behalf privies cannot act or parade themselves as a Trade Union without being registered as same by the Registrar of Trade Unions in accordance with the Trade Unions Act (as amended).

4.     AN ORDER of perpetual injunction restraining the defendants, their servants, privies, agents or anyone acting on its behalf from forcefully issuing tickets to drivers of tippers/trucks at quarry sites in Kano State.

5.     AN ORDER of perpetual injunction restraining the defendants, their servants, privies, agents or anyone acting on its behalf from intimidating, harassing, interfering in the claimant’s jurisdictional scope or compelling members of the claimant union to join the association and forcefully issue tickets to members of the union as purported members of the association.

6.     AN ORDER of perpetual injunction restraining the defendants, their servants, privies, agents or anyone acting on its behalf from parading themselves as trade union of drivers of tippers/trucks at quarry sites.

7.     Cost of instituting and prosecuting this suit in the sum of N2, 000, 000.00 (Two Million Naira) payable by the Defendant.

8.     AND for such order or further order(s) as this Honourable court may deem fit to make in the circumstances of this case.

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

1.      That by virtue of the provisions of Sections 1 and 2 of the Trade Unions Act (as amended), only a registered trade union recognized by law possess the requisite powers to unionize employers/workers and conduct itself as a registered trade union.

 

2.      That by virtue of Sections 1 and 2 of the Trade Unions Act (as amended), the defendant Kano State Tipper Drivers Association (KSTDA) cannot act as trade unions without being registered as same by the Registrar of trade union or other relevant authority in accordance with the Trade Unions Act.

 

3.      That by virtue of Sections 1 and 2 of the Trade Unions Act (as amended), Exhibits A and B, the defendant Kano State Tippers Drivers Association (KSTDA) and its servants or privies  not being a recognized trade union cannot forcefully issue tickets to members or drivers of trucks/tippers at quarry sites in Kano State.

 

4.      That by virtue of Sections 1 and 2 of the Trade Unions Act (as amended), Exhibits A and B, the defendant Kano State Tippers Drivers Association (KSTDA) and its servants or privies cannot interfere with the claimant’s jurisdictional scope of unionizing drivers of trucks/tippers at quarry sites in Kano State.

 

5.      That by virtue of Sections 1 and 2 of the Trade Unions Act (as amended), Exhibits A and B, the defendant Kano State Tippers Drivers Association (KSTDA), the intimidation, harassment and interference or compulsion of members of the claimant union to join the association and forcefully issue tickets to members of the union as purported members of the association is unlawful.

In support of the Originating Summons, the Claimant filed 19 paragraphs affidavit deposed to by Comrade Isah Jafar, Financial Secretary of the Claimant and a written address settled by E. O. Ekaun in accordance with the rules of this court. The Defendants filed a Memorandum of Conditional Appearance, a Notice of Preliminary Objection and a motion to regularize on the 27^th May, 2024. This is in addition to filing a Counter Affidavit of 4 paragraphs and a written address settled by Abdurrahman Mukhtar Abdullahi. On the 26^th January, 2026, the Claimant moved its motion filed the 4^th July, 2024 for an order striking the names of 2^nd to 5^th Defendants and for amending the 1^st Defendant to read “Incorporated Trustees of Kano State Tipper Drivers Association.” In opposition to this application, the Defendants filed a Counter Affidavit and a written address on the 16^th July, 2024. On the 26^th January, 2026, the court granted the Defendants’ application for extension of time and  resolved to take all the pending applications, to wit: Motion for the striking out the names of 2^nd to 5^th Defendants and amending the name of the 1^st Defendant; Notice of Preliminary Objection and the Substantive Suit. All these applications were taken on the 26^th January, 2026 and case adjourned to 26^th February, 2026 for judgment.

 

CLAIMANT’S MOTION FOR STRIKING OUT/AMENDMENT

 

On the 4^th July, 2024, the Claimant filed a Motion on Notice pursuant to Orders 15 Rule (1), 17 and 26 of the National Industrial Court (Civil Procedure) Rules, 2017 praying for:

 

1.      AN ORDER of this Honourable Court striking out the name of the 2^nd, 3^rd, 4^th and 5^th Defendants/Respondents in this suit.

 

2.      AN ORDER of this Honourable court granting leave to the Claimant/Applicant to amend the name of the 1^st defendant suing on behalf of the Kano State Tipper Drivers Association to read “Incorporated Trustees of Kano state Tipper Drivers Association.”

 

3.      AND for such Further Order(s) as this Honourable Court may deem fit to make in the circumstance. 

 

The Claimant stated the grounds in support of application as follows:

 

(a)   That the Kano State Tipper Drivers Association is registered as an incorporated trustee that can only be sued through its registered trustees.

 

(b)  That the 1^st defendant/respondent sued on behalf of the Kano State Tipper Drivers Association is a trustee of the Kano State Tipper drivers Association.

 

(c)   That the 2^nd - 5^th defendants are not trustees of the Kano State Tipper Drivers Association, thus, ought to be struck off from this suit.

 

(d)  That the 1^st defendant being a trustee of the Kano State Tipper Drivers Association is the correct person to be sued but has been sued in a wrong name. Thus, a misnomer.

 

(e)   That the correct name to address the 1^st defendant is the “Incorporated Trustee of Kano State Tipper Drivers Association”.

 

In support of this application, the Claimant filed an Affidavit of 4 paragraphs deposed to by Comrade Muhammad Awwal with 2 exhibits and a written address by E. O. Ekaun.

 

SUBMISSIONS OF THE CLAIMANT IN SUPPORT OF THE MOTION

The Claimant’s submissions on the sole issue for determination, namely whether the Applicant is entitled to the reliefs sought in the application, are firmly grounded on the settled principles of law governing amendment of pleadings and the correction of misnomer in judicial proceedings. The Claimant submits that the consideration in applications for amendment is the interest of justice, and that courts are enjoined to grant such applications liberally, provided that no injustice is occasioned to the opposing party and that the application is not brought mala fide.

Relying on the decision of the Supreme Court in First Bank of Nigeria (Nig.) Plc v. M.O. Kano & Sons & Co. (1999) 9 NWLR (Pt. 619) 484, the Claimant submits that an amendment should be allowed unless it would cause injustice to the respondent or inflict an injury that cannot be adequately compensated by costs or other remedial orders. The Claimant argues that the amendment sought in the present case does not introduce a new cause of action, does not alter the substance of the dispute, and does not prejudice the respondents in any manner. Rather, it is aimed at bringing the real issues and the proper parties before the Court for a just and effective determination of the case.

The Claimant further submits that this Court is fully empowered by its Rules to grant amendments at any stage of proceedings. Specific reliance is placed on Order 26 of the Rules of this Court, which confers wide discretionary powers on the Court to allow amendments of processes in order to determine the real questions in controversy between the parties. It is contended that this discretionary power ought to be exercised judicially and judiciously in favour of allowing amendments that promote substantial justice rather than technicality.

The Claimant explains that the proposed amendment is necessitated by the need to correct a misnomer in the description of the 1^st Defendant, who was originally sued as a trustee of the Kano State Tipper Drivers Association rather than in the proper name of the incorporated trustees of the association. The Claimant submits that the affidavit evidence and the exhibits before the Court clearly show that the 1^st Defendant is indeed a trustee of the Kano State Tipper Drivers Association and is therefore the proper and necessary party for the maintenance of the suit. Conversely, the Claimant contends that the 2^nd to 5^th Defendants, who are not trustees, are not proper parties and ought to be struck out.

In advancing this argument, the Claimant placed reliance on the decision of the Court of Appeal in Yohanna & Ors v. Gabriel & Ors (2020) LPELR-49948 (CA), where the Court undertook an elaborate exposition of the distinction between a misnomer and the situation where a wrong party is sued. The Claimant highlights the holding of the Court that a misnomer arises where the correct party is before the Court but is described by a wrong or incorrect name, in which case an amendment is permissible and ought to be allowed in the interest of justice. The Claimant acknowledges the further clarification by the Court of Appeal in the same case that where the wrong person is sued, as opposed to a wrong name being used for the correct person, such a defect is not a mere misnomer and cannot be cured by amendment. The Claimant submits, however, that the facts of the present case fall squarely within the category of misnomer, as the real and intended defendant, being the trustees of the Kano State Tipper Drivers Association, is already before the Court, albeit under an inaccurate description.

The Claimant therefore contends that suing the 1^st Defendant “on behalf of the Kano State Tipper Drivers Association” rather than in the name of the “Incorporated Trustees of Kano State Tipper Drivers Association” amounts to nothing more than a wrong description of the correct party. Such an error, it is submitted, does not vitiate the proceedings and is curable by amendment. In further reliance on Yohanna & Ors v. Gabriel & Ors (supra), the Claimant reiterates the holding of the Court of Appeal that it is well settled law that where the correct person is brought before the Court under a wrong or incorrect name, the Court is obliged to allow an amendment to correct the mistake in the interest of justice.

In conclusion, the Claimant submits that, having regard to the affidavit evidence placed before the Court, the applicable Rules of Court, and the binding judicial authorities cited, this is a proper and deserving case for the exercise of the Court’s discretion in favour of granting leave to amend the processes as sought. The Claimant accordingly urges this Court to resolve the issue for determination in favour of the Applicant and grant the reliefs sought in the application.

DEFENDANTS’ SUBMISSIONS IN OPPOSITION TO THE MOTION

 

In opposition to the application for amendment, the Defendant filed a Counter Affidavit of 4 paragraphs and a written address by Abdurrahman Mukhtar Abdullahi. The Defendants’ objection to the application for amendment is predicated on the firm contention that the Claimant is not entitled to any of the reliefs sought, the application being frivolous, misconceived, and lacking in merit. The Defendants submit that the motion was filed as an afterthought, prompted solely by the realization that the pending notice of preliminary objection squarely challenges the competence of the Originating Summons. According to the Defendants, the Claimant instituted the action against five named individuals purportedly on behalf of “Kano State Tipper Drivers Association,” an association which, by law, is a juristic person capable of suing and being sued only in its own name or through its registered trustees. The present application, they argue, is a tactical attempt to avert the fatal consequence of that fundamental defect.

On the central issue whether the application qualifies as a mere correction of misnomer, the Defendants submit that the Claimant’s reliance on misnomer is entirely misplaced. They contend that the problem with the composition of parties in the Originating Summons transcends a simple mistake in name and amounts instead to a fundamental error as to the proper parties before the court. Misnomer, it is argued, occurs only where the correct party is before the court but is described by an incorrect or inaccurate name. In support of this settled principle, the Defendants place reliance on Ihunda & Ors v. Dufil Primas Foods Plc (2023) LPELR-61215(CA), where the Court of Appeal reiterated that misnomer arises when the appropriate party is brought to court under a wrong name. This principle, they submit, accords with the authoritative pronouncement of the Supreme Court in Registered Trustees of Airline Operators of Nigeria v. NAMA (2014) LPELR-22372(SC); (2014) 8 NWLR (Pt. 1408) 1, where Okoro, JSC explained that a misnomer is simply a mistake in naming a person who sues or is sued, not a mistake as to the identity of the party itself. Reference was also made to Emespo J. Continental Ltd v. Corona S. & Co. (2006) 11 NWLR (Pt. 991) 365, where the Supreme Court emphasized that misnomer presupposes that the correct person is before the court, albeit in a wrong name.

Flowing from these authorities, the Defendants submit that there is no mistake whatsoever in the names of the 1^st to 5^th Defendants as contained in the Originating Summons. The Claimant clearly and deliberately sued the named individuals, correctly stating their names and even providing descriptive identifiers such as offices held, nicknames, and other particulars. There is therefore no wrong name to be corrected. The Defendants argue that the Claimant’s assertion that it intended to sue only the 1^st Defendant in his capacity as incorporated trustee is unconvincing and inconsistent with the clear structure and content of the Originating Summons, which names and describes five distinct individuals. In their submission, the identity of the parties sued is not in doubt, and where identity is certain, misnomer cannot arise.

Further reliance is placed on Rabiu & Anor v. Sinohydro ABJ Ltd (2023) LPELR-60601 (CA), where the Court of Appeal drew a clear distinction between suing a party in a wrong juristic name, which may amount to misnomer, and suing the wrong party altogether, which cannot. The court emphasized that misnomer occurs when a proper party is incorrectly named, not when there is a mistake in the party’s identity. Applying this principle, the Defendants submit that the Claimant’s application seeks not to correct a name but to substitute parties and reconstitute the suit entirely, a step unknown to law under the guise of amendment.

The Defendants further submit that even if the Claimant’s narrative were to be believed, the amendment sought is still untenable in law and practice. An association registered or incorporated under Part C of the Companies and Allied Matters Act can only be sued through its registered trustees collectively, not through a single trustee as the Claimant now proposes. This position, they argue, is settled by the decision of the Court of Appeal in Akpan & Ors v. Umoren & Ors (2012) LPELR-7909 (CA), which affirms that actions involving incorporated associations must be brought by or against the registered trustees in their representative capacity.

Most fundamentally, the Defendants submit that the Originating Summons is incompetent ab initio for failure to sue the proper and competent parties, and that this defect goes to the jurisdiction of the court. An incompetent originating process, they argue, cannot be salvaged by amendment. On this point, they rely heavily on Akekuta & Ors v. Nurudeen & Anor (2022) LPELR-57153 (CA), where the Court of Appeal held emphatically that an incompetent process cannot be amended, restating the trite principle that one cannot place something on nothing and expect it to stand, as it will inevitably collapse. Since the foundation of the Claimant’s suit is defective, any amendment built upon it must equally fail.

In conclusion, the Defendants urge the court to hold that the alleged mistake sought to be corrected is not a misnomer but a fundamental blunder as to parties, which is incurable by amendment. They accordingly invite the court to refuse the application in its entirety and uphold the objection to the competence of the Originating Summons.

NOTICE OF PRELIMINARY OBJECTION

 

On the 27^th May, 2024, the Defendants filed a Notice of Preliminary Objection challenging the competence of the Originating Summons and praying for the striking out of same on the following grounds:

 

1.      The Claimant in the Originating Summons is not a juristic person.

 

2.      The Kano Tipper Drivers Association on behalf of whom the Defendants are herein sued is a juristic person duly registered under the Companies and Allied Matters Act.

 

3.      Being a corporate body duly registered under the extant laws, Kano Tipper Drivers Association can only sue and be sued in its own name or through its registered trustees.

The Notice of Preliminary Objection is supported by a 4 paragraphs affidavit and 1 exhibit, the Certificate of Incorporation of Kano Tipper Drivers Association and a written address. In support of their Notice of Preliminary Objection, the Defendants/Applicants formulated a sole issue for determination, namely whether, having regard to the affidavit in support of the objection, Exhibit A attached to the affidavit in support of the Originating Summons, the decision in Incorporated Trustees of Holy Apostles Church, Ayetoro & Ors v. Incorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro & Ors (2016) LPELR-41368 (CA), and the settled principle of juristic personality, the present Originating Summons is not incompetent and therefore liable to be struck out. In canvassing arguments on this issue, learned counsel for the Defendants/Applicants divided their submissions into two principal grounds, both of which challenge the competence of the action and the jurisdiction of this Court to entertain it.

On the first ground, the Defendants/Applicants contended that the Claimant as constituted in the Originating Summons is not a juristic person known to law and therefore lacks the legal capacity and locus standi to institute the action. It was submitted that the Claimant is described as “Union of Tipper and Quarry Employers of Nigeria (Kano State Chapter)” and that this description is confirmed by paragraph 2 of the affidavit in support of the Originating Summons, which expressly states that the Claimant is the Kano State branch or chapter of the Union of Tipper and Quarry Employers of Nigeria. Learned counsel argued that this admission is fatal to the competence of the suit, as a branch or chapter of an association does not, by that fact alone, possess juristic personality unless such personality is conferred by statute or proved by a valid certificate of registration in that exact name.

In an attempt to establish juristic personality, the Claimant attached a Certificate of Registration of Trade Union marked as Exhibit A. However, the Defendants/Applicants submitted that the said certificate bears the name “Union of Tipper and Quarry Employers of Nigeria” simpliciter, whereas the Claimant before the Court is “Union of Tipper and Quarry Employers of Nigeria (Kano State Chapter).” It was argued that the two names are clearly not the same and that the addition of “Kano State Chapter” constitutes a material alteration which renders the Claimant a different and unknown entity in the eyes of the law. Counsel emphasized that the law is settled that juristic personality is strictly proved by the production of a certificate of registration or incorporation bearing the exact name of the party seeking to sue or be sued.

In support of this position, reliance was placed on Motorcycle Transport Union of Nigeria & Ors v. Delta State Motorcyclists Association & Ors (2010) LPELR-4503 (CA), where the Court of Appeal, per Nwosu-Iheme, JCA, held that the best and indeed conclusive evidence of juristic personality is the production of a certificate of registration or incorporation. Reference was also made to the classical authorities of Apostolic Church, Ilesha v. Attorney-General, Mid-West State (1972) 4 SC 150 and Iyke Medical Merchandise v. Pfizer Inc. & Ors (2001) MJSC 136, which underscore the principle that only entities whose legal existence is established by law can validly initiate or defend actions in court.

The Defendants/Applicants further submitted that the instant case is on all fours with the decision of the Court of Appeal in Incorporated Trustees of Holy Apostles Church, Ayetoro & Ors v. Incorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro & Ors (2016) LPELR-41368 (CA), where a branch of an incorporated association instituted an action using the name of the parent body with an added geographical description. In that case, the Court of Appeal held unequivocally that the only name clothed with juristic personality is the name appearing on the certificate of incorporation and that any addition or subtraction amounts to an alteration of name which can only be effected with the approval of the Corporate Affairs Commission. The Court further held that a branch of an incorporated association does not possess juristic personality and therefore lacks the capacity to sue. Learned counsel submitted that, by parity of reasoning, the Claimant herein, being merely a Kano State chapter of a registered union, is a non-juristic entity and cannot validly commence the present action.

Flowing from this, it was argued that the Claimant’s lack of juristic personality renders the entire suit incompetent. Counsel relied again on Incorporated Trustees of Holy Apostles Church, Ayetoro & Ors v. Incorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro & Ors (supra), where the Court of Appeal held that an action instituted by a non-juristic person is a nullity and a complete non-starter, as there can be no activation of the jurisdiction of a court by a non-existent legal person. The Court emphasized that jurisdiction is a threshold issue and that where a plaintiff lacks the legal capacity to sue, the court must decline jurisdiction and strike out the action. Further reliance was placed on Dikko & Sons Limited v. Corporate Affairs Commission (2022) LPELR-61152 (SC), where the Supreme Court reaffirmed the fundamental nature of juristic personality and locus standi as conditions precedent to the assumption of jurisdiction by a court of law.

On the second ground of objection, the Defendants/Applicants argued that the action is equally incompetent because the Claimant sued the 1^st to 5^th Defendants on behalf of the Kano Tipper Drivers Association, instead of suing the association directly in its registered name or through its registered trustees. It was submitted that the Kano Tipper Drivers Association is a corporate body duly registered under the extant laws and that, by settled principles of corporate personality, such an entity can only sue and be sued in its own registered name or through its legally appointed trustees. Learned counsel maintained that suing individual members or officials “on behalf of” a registered association offends this fundamental principle and renders the action incompetent.

In elaboration, counsel relied heavily on the decision of the Supreme Court in Ostankino Shipping Company Limited v. Owners of the MT Bata 1 & Ors (2021) LPELR-58308 (SC), where the apex court, per Ogunwumiju, JSC, restated the age-long doctrine of corporate personality as laid down in Salomon v. Salomon (1897) AC 22, emphasizing that upon incorporation, a body acquires a separate legal personality with the capacity to sue and be sued in its own name. Reference was also made to The Registered Trustees of Master’s Vessel Ministries Nigeria Incorporated v. Rev. Francis Emenike & Ors (2017) LPELR-42836 (CA), which reaffirmed that only natural persons and juristic persons recognized by law can be proper parties to an action.

Further reliance was placed on Shakarho & Ors v. Jeje & Anor (2023) LPELR-60965 (CA), where the Court of Appeal reiterated that only natural persons and juristic persons are competent to sue and be sued, and that any action instituted otherwise is liable to be struck out. Learned counsel emphasized the rationale behind this principle, namely that litigation involves the determination of legal rights and obligations, which can only vest in entities recognized by law. Consequently, where a party is not a legal person, the defect goes to the root of the action and may be raised by way of preliminary objection, with the inevitable consequence of the suit being struck out if the objection succeeds.

In addressing the legal consequence of failing to sue a registered organization in its registered name or through its registered trustees, the Defendants/Applicants submitted that the consistent position of the superior courts is that such a failure renders the action incompetent. Reliance was placed on Fawehinmi v. Nigerian Bar Association (No. 2) (1989) 2 NWLR (Pt. 105) 558, as well as Dana Foods Ltd v. Nigeria Customs Service & Ors (2022) LPELR-59249 (CA), where the Court of Appeal held that where either party to an action is not a legal person capable of exercising legal rights and obligations, the action is liable to be struck out upon a successful preliminary objection.

In conclusion, the Defendants/Applicants submitted that the combined effect of the arguments and authorities cited is that the Claimant is not a juristic person known to law and therefore lacks the capacity to institute the action, and that the Kano Tipper Drivers Association, being a registered body, can only sue or be sued in its registered name or through its registered trustees. The failure to comply with these fundamental requirements, it was argued, renders the Originating Summons incompetent and deprives the Court of jurisdiction, thereby warranting an order striking out the suit in its entirety.

SUBMISSIONS OF THE CLAIMANT/RESPONDENT IN OPPOSITION

In opposition to the Notice of Preliminary Objection, the Claimant/Respondent distilled two central issues for determination: whether the Plaintiff is a proper party capable of suing and being sued, and whether the suit as presently constituted is liable to be struck out. On both questions, the Claimant urged the Court to dismiss the objection and allow the matter to proceed on its merits.

On the first issue, learned counsel submitted that it is firmly established in the jurisprudence of the National Industrial Court of Nigeria that a state branch or chapter of a registered trade union possesses the requisite legal personality to institute and maintain an action before the Court. Counsel emphasized that this position has been consistently upheld in order to prevent the unnecessary joinder of the national or parent body of a union in disputes that are essentially local or peculiar to a branch.

Strong reliance was placed on the decision in Dr. O. Odusote & Anor v. Lagos State Government & 3 Ors, Suit No. NICN/LA/158/2012 (delivered on 24 May 2012), where Hon. Justice B.B. Kanyip (as he then was) reiterated that although non-juristic persons are generally not competent to sue or be sued, this Court has carved out a well-recognized exception in respect of trade union branches and chapters. In that case, drawing from Oyo State Government v. Alhaji Apapa & Ors and Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria (2008) 33 NLLR (Pt. 33) 407, the Court affirmed that by virtue of Item 17 Part C of the Third Schedule to the Trade Unions Act (as amended), senior staff associations are recognized trade unions and that variants or branches of such associations are entitled to access the Court to ventilate their peculiar grievances. The Court made it clear that since inception, it has acknowledged the right of union branches or units to sue without necessarily dragging the national body into litigation.

Further reinforcement was drawn from Union of Tipper & Quarry Employers of Nigeria v. National Union of Road Transport Workers, Ogun State Chapter & Anor, Suit No. NICN/LA/265/2017 (judgment delivered on 5 May 2022), where Hon. Justice (Prof.) Elizabeth A. Oji reaffirmed the consistent position of the Court. In Road Transport Employers Association (RTEAN) Osogbo, Ogun State v. National Union of Road Transport Workers (NURTW) Osogbo, Osun State, NIC/33/2007, Coram: Adejumo, Kanyip and Dadda JJ., the Court unequivocally dismissed the argument that branch unions lack standing, holding that branch unions or unit chapters have the right of audience before the Court. The Court further relied on Alhaji Lateef Akinsola v. National Union of Road Transport Workers (2013) 33 NLLR (Pt. 96) 399, where it was expressly held that the law recognizes units, branches, and chapters of trade unions as having legal personality and capacity to sue and be sued in their own right, especially where their interests are not necessarily conterminous with those of the national body.

Against this settled backdrop, the Claimant/Respondent submitted that being a unit, chapter, or branch of a duly registered trade union, it enjoys the legal capacity to institute the present action. Counsel contended that the authorities cited by the Defendants, particularly Incorporated Trustees of Holy Apostles Church, Ayetoro & Ors v. Incorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro & Ors (2016) LPELR-41368 (CA), are distinguishable. That decision concerned the juristic personality of a state branch of an incorporated trustee under the Companies and Allied Matters Act, whereas the present case involves a branch of a registered trade union whose standing before this specialized Court has been repeatedly affirmed. The Claimant/Respondent therefore urged the Court to discountenance the Applicants’ arguments challenging its juristic personality.

On the second issue, namely whether the suit as constituted is liable to be struck out, the Claimant/Respondent addressed the Applicants’ contention that the Kano State Tipper Drivers Association, being a registered incorporated trustee, can only be sued in its registered name or through its registered trustees. The Applicants had relied on the certificate of incorporation of the Association and argued that the failure to sue it strictly in the name of its registered trustees rendered the action incompetent.

The Claimant/Respondent conceded the general principle of law that upon registration under the Companies and Allied Matters Act, an incorporated trustee acquires juristic personality and can only sue or be sued in its registered name through its trustees. In support, reliance was placed on Akpan & Ors v. Umoren & Ors (2012) LPELR-7909 (CA), where the Court of Appeal held that by virtue of section 679 (1) of the repealed CAMA (now section 830 (1) (c) of the Companies and Allied Matters Act, 2020), registered trustees, upon incorporation, acquire legal personality and the capacity to sue and be sued in the name indicated on the certificate of registration.

However, the Claimant/respondent contended that the decisive question is whether any of the Defendants sued in a representative capacity are in fact trustees of the incorporated association. Referring to the Counter-Affidavit and Exhibit CR1 annexed thereto, counsel submitted that the 1^st Defendant, Ado Umar, is indeed a registered trustee of the Kano State Tipper Drivers Association, his name appearing on the certificate of incorporation. Consequently, he is competent to be sued in a representative capacity on behalf of the Association.

The Claimant/Respondent distinguished the decision in Yohanna & Ors v. Gabriel & Ors (2020) LPELR-49948 (CA), which was cited for the proposition that only registered trustees can sue or be sued on behalf of an incorporated body. In that case, the Court of Appeal struck out the names of individuals who were not registered trustees and therefore were wrongly sued in a representative capacity. Per Onyekachi Aja Otisi, JCA, the Court clarified the distinction between a misnomer—where the correct party is sued under a wrong name—and a situation where the wrong person is sued entirely. The latter is not curable as a misnomer.

Relying on the reasoning in Yohanna, the Claimant/Respondent argued that the present case falls within the category of misnomer rather than misjoinder of a wrong party. Unlike in Yohanna, where the persons sued were not trustees at all, the 1^st Defendant herein is an admitted trustee. Therefore, at worst, the action reflects an incorrect description of the proper juristic entity—suing a trustee in a representative capacity rather than expressly suing “The Incorporated Trustees of Kano State Tipper Drivers Association.” Such an error, counsel submitted, is a mere misnomer which does not vitiate the proceedings and is amenable to correction by amendment.

The Claimant/Respondent further relied on the settled principle, restated in Yohanna v. Gabriel, that where the correct person is brought before the Court under a wrong or inaccurate name, the Court is obliged, in the interest of justice, to permit an amendment to correct the mistake. Since the existence of the Kano State Tipper Drivers Association is not in dispute and at least one of its trustees is properly before the Court, striking out the suit would elevate form over substance and defeat substantial justice.

In conclusion, the Claimant/Respondent urged the Court to hold that it is a proper party with capacity to sue as a branch of a registered trade union under the well-established jurisprudence of the National Industrial Court. It further urged the Court to find that the manner in which the Defendants were sued does not render the action incompetent, as any defect amounts at most to a curable misnomer. On these premises, the Claimant/Respondent prayed the Court to dismiss the Notice of Preliminary   Objection and allow the matter to proceed to determination on its merits.

CASE OF THE CLAIMANT

The case of the Claimant as presented in the affidavit in support of the Originating Summons is founded on its status as a duly recognized and registered trade union operating within the quarry sector in Kano State and the alleged unlawful interference with its statutory and constitutional functions by the Defendants.

The deponent, Comrade Isah Jafar, deposes to the affidavit in his capacity as the Financial Secretary of the Claimant and asserts that by virtue of his office he is conversant with the facts and circumstances giving rise to the action. He explains that the Claimant is the Kano State branch or unit chapter of the Union of Tipper and Quarry Employers of Nigeria (UTQEN), operating from its address at Gidan Tifa, Na’ibawa (Unguwar Kwari), Kano State. The parent body, UTQEN, is described as a trade union duly registered under the Trade Unions Act, and its certificate of registration is exhibited to demonstrate its legal personality and statutory recognition.

The affidavit further traces the constitutional foundation of the union’s authority. It states that the Union’s amended Constitution, altered by its General Assembly on 18 November 2022, regulates its operations. Following that amendment, the Union sought and obtained the requisite approval of the Registrar of Trade Unions in accordance with the Trade Unions Act. The approval and the relevant publication in the Federal Republic of Nigeria Official Gazette are exhibited, underscoring that both the registration of the union and the amendment of its constitution comply strictly with statutory requirements.

The deponent outlines the principal objectives of the Union as provided under its Constitution. These include the unionization of members within the quarry sector, specifically owners of quarries, drivers who own the trucks or tippers they operate, and employers of drivers of such vehicles who are registered members of the Union. The Union is also mandated to regulate and promote the business undertakings of its members engaged in activities connected with quarriable minerals, including digging, dredging, sales, supply, and other commercial activities relating to materials such as gravel, sand, granite, laterite, barite, and allied products. This mandate extends to the sale, purchase, and supply of tippers and lorries used for transporting such materials at quarry sites.

The affidavit asserts that since its registration in April 2013, the Union has carried out these objectives peacefully in Kano State until the emergence of the Defendants under the name Kano State Tipper Drivers Association (KSTDA). According to the Claimant, the Defendants are not a registered trade union, yet they have commenced activities that allegedly encroach upon and undermine the statutory jurisdiction and recognized functions of the Claimant within the quarry sector.

It is deposed that the Defendant association has been unionizing drivers of trucks and tippers within the quarry sector, issuing tickets, and collecting dues and levies from such drivers in Kano State. Copies of tickets allegedly forcefully issued to drivers who are members of the Claimant Union are exhibited in support of this assertion. The deponent further alleges that members of the Defendant association intimidate and harass members of the Claimant Union, compelling them to join the association and issuing tickets to them as purported members of the Defendant body.

The Claimant’s case also includes allegations that the Defendants mobilize at quarry sites across Kano State to disrupt the collection of union dues and the issuance of tickets by the Claimant, thereby interfering with its operations. It is contended that the Defendants have effectively taken over the role of unionization of persons within the quarry sector—owners, drivers, and employers alike—in clear contravention of the jurisdictional scope of the Claimant as a registered trade union. The affidavit maintains that the Defendants have also assumed regulatory and organizational functions over activities connected to the quarry business, contrary to the constitutional mandate of the Claimant’s Union.

Central to the Claimant’s position is the assertion that UTQEN and its Kano State chapter are the recognized trade union for drivers of tippers and trucks at quarry sites, and that the Defendant association, not being registered under the Trade Unions Act, lacks the legal capacity to act or parade itself as a trade union. The Claimant therefore contends that the Defendants are usurping the statutory powers, rights, and privileges vested in it by law.

On the basis of these facts, the Claimant seeks the intervention of the Court to restrain the Defendants from further encroachment upon or infringement of its jurisdiction and powers. The affidavit concludes with the assertion that granting the reliefs sought would serve the interest of justice and promote public order within the quarry sector in Kano State.

CASE OF THE DEFENDANTS

The defence of the Defendants, as disclosed in their Counter Affidavit deposed to by Ahmad Abdurrahman, a Litigation Secretary in the firm of Abdurrahman Mukhtar & Co., is a comprehensive denial of the material allegations contained in the affidavit in support of the Originating Summons. The deponent states that he is conversant with the facts of the case by virtue of his position and that he deposes to the affidavit with the authority of his employers and the Applicant. He further explains that the facts deposed to were relayed to him by the 1^st Defendant after a review of the processes filed by the Claimant, and that he believes those facts to be true.

At the heart of the defence is the contention that the affidavit in support of the Originating Summons is substantially untrue and represents a distortion of the real facts. The Defendants specifically challenge the Claimant’s status, asserting that the Claimant is not a registered trade union as alleged. They categorically deny the accusation that the Kano Tipper Drivers Association has engaged in any activity amounting to sabotage or infringement of the rights and roles of any association, organisation or union, including the Claimant. The Defendants further deny that the Kano Tipper Drivers Association has ever paraded itself as a registered trade union.

A central plank of the defence is the distinction drawn between the Kano Tipper Drivers Association and the Union of Tipper and Quarry Employers of Nigeria. The Defendants maintain that the two bodies have entirely different objectives and constituencies. According to them, the Kano Tipper Drivers Association is limited strictly to drivers of tippers, whereas the Claimant union is concerned with tipper and quarry employers. It is further asserted that members of the Kano Tipper Drivers Association are not registered with the Claimant and do not fall under its constitutional coverage, particularly in the case of drivers who do not own the tippers they operate.

The Defendants also firmly deny allegations that they issue tickets to non-members or collect monetary contributions from persons who are not duly registered members of their Association. They state that the Association does not resort to force or violence in collecting contributions from its members and has never engaged in harassment or intimidation of any person, including members of the Claimant. In addition, they disclaim responsibility for Exhibits D1 and D2 attached to the Claimant’s processes, asserting that those documents were not issued by the Kano Tipper Drivers Association and could not be verified by its officials.

In response to the Claimant’s allegations of interference with the collection of dues, the Defendants deny ever disrupting or interfering with the Claimant’s collection of dues from its members. Instead, they accuse the Claimant and its officers of engaging in acts of harassment and intimidation against members of the Kano Tipper Drivers Association in the course of their lawful work as tipper drivers. The Defendants allege that the Claimant has arrogated to itself the role of a tax authority by attempting to impose and enforce payment of dues and levies on persons who are not its members, sometimes under threat of consequences. They further allege that, in certain instances, leaders or officials of the Claimant have gone as far as sealing quarry sites that refused to comply with what the Defendants describe as illegal demands.

The Defendants maintain that their members merely resist attempts by the Claimant’s officials to impose unlawful levies upon them and that any altercations that arise are precipitated by the violent conduct of the Claimant’s officials. They also deny having any dealings with quarry owners, workers, or drivers who own the tippers they operate, distancing themselves from the broader operational sphere attributed to them by the Claimant.

In conclusion, the Defendants urge the Court to dismiss the Originating Summons in its entirety, contending that the action is unfounded and that its dismissal would serve the interest of justice without occasioning any prejudice to the Claimant. The Counter Affidavit is thus presented as a total repudiation of the Claimant’s narrative and a reaffirmation of the Defendants’ position that they have acted lawfully and within the confines of their association’s defined objectives.

SUBMISSIONS OF THE CLAIMANT IN SUPPORT OF THE ORIGINATING SUMMONS

The Claimant’s submissions are anchored on a unified consideration of the issues formulated for determination, which collectively call for an interpretation of the relevant provisions of the Trade Unions Act (as amended) in the light of the undisputed facts before the Court. The gravamen of the Claimant’s argument is that the Defendant, Kano State Tipper Drivers Association, lacks the legal competence to engage in acts reserved exclusively for registered trade unions and that its forceful issuance of tickets to drivers of trucks and tippers at quarry sites in Kano constitutes an unlawful encroachment on the statutory and constitutional jurisdiction of the Claimant Union of Tipper and Quarry Employers of Nigeria and its Kano Chapter.

The Claimant submits that the dispute turns fundamentally on the proper construction of Sections 1, 2 and 4 of the Trade Unions Act (as amended). Section 1 of the Act defines a trade union as any combination of workers or employers, whether temporary or permanent, formed for the purpose of regulating the terms and conditions of employment of workers. The provision further clarifies that the existence of additional purposes or powers does not preclude registration under the Act and that a trade union may apply its funds for any lawful purpose authorized by its rules. The Claimant contends that this definition establishes the legal character and scope of a trade union and makes clear that the regulation of employment terms and conditions is a core statutory function reserved to duly registered bodies.

Reliance is also placed on Section 2 of the Trade Unions Act, which unequivocally provides that a trade union shall not perform any act in furtherance of the purpose for which it has been formed unless it has been registered under the Act. The Claimant emphasizes that this provision is couched in mandatory terms and constitutes a condition precedent to the lawful exercise of trade union functions. The legal effect, it is argued, is that any association not duly registered as a trade union is precluded from acting in furtherance of trade union purposes, including the regulation, unionization, or imposition of levies upon workers or employers.

Further reliance is placed on Section 4 (1) of the Act, which mandates every trade union to have registered rules containing provisions with respect to matters set out in the First Schedule to the Act. The Claimant submits that this statutory requirement underscores the regulated nature of trade union operations and reinforces the principle that only bodies recognized and registered in accordance with the Act may lawfully function as trade unions within Nigeria.

In advancing these submissions, the Claimant invokes the settled principle of statutory interpretation that where the words of a statute are clear, plain, and unambiguous, they must be accorded their ordinary grammatical meaning without resort to extraneous considerations. The authorities of Kassim v. Sadiku & Ors (2021) LPELR-55334 (SC) and Nwankwo & Ors v. Yar’adua & Ors (2010) LPELR-2109 (SC) are cited in support of this canon of interpretation. In those decisions, the Supreme Court reaffirmed that courts are bound to give effect to the express words of a statute where such words admit of no ambiguity. The Claimant submits that the provisions of Sections 1, 2 and 4 of the Trade Unions Act are clear and admit of only one interpretation: that registration is a mandatory prerequisite for the lawful exercise of trade union functions.

Applying these principles to the facts, the Claimant contends that it is a duly registered trade union recognized under the Trade Unions Act. Reference is made to Exhibits A, B, C1 and C2 annexed to the affidavit in support, which evidence the registration of the umbrella union and acknowledgment of its activities by the Registrar of Trade Unions. The Claimant further relies on Rule 3 (A) (i) of its Constitution, contained in Exhibit B, which sets out its principal objective as the unionization of all members, including quarry owners, drivers who own the trucks or tippers they operate, and employers of drivers of trucks and tippers who are registered members. It is submitted that this constitutional provision clearly delineates the jurisdictional scope of the Claimant and affirms its statutory mandate to regulate and unionize the relevant category of workers and employers.

The Claimant argues that, by virtue of its statutory registration and constitutional objectives, it possesses the exclusive jurisdiction to unionize drivers of trucks and tippers operating at quarry sites within Kano State. The Defendant, not being a registered trade union under the Act, lacks the legal capacity to parade itself as a union or to perform acts in furtherance of trade union purposes. The forceful and compulsory issuance of tickets to drivers, particularly members of the Claimant union, is characterized as an act in furtherance of trade union objectives undertaken without lawful authority, and therefore ultra vires the Defendant’s powers.

The Claimant maintains that the facts relating to the Defendant’s non-registration and its compulsory issuance of tickets are not in dispute, as deposed in the affidavit evidence before the Court. In the absence of registration under the Trade Unions Act, the Defendant cannot lawfully interfere with the Claimant’s statutory jurisdiction or impose obligations on drivers operating within the Claimant’s recognized scope of unionization. Such interference, it is argued, constitutes an unlawful usurpation of the Claimant’s statutory functions and a violation of the Trade Unions Act.

On the totality of its submissions, the Claimant urges the Court to hold that only a duly registered trade union recognized under the Trade Unions Act can lawfully regulate, unionize, or impose levies in relation to workers and employers within its defined jurisdiction. Consequently, the actions of the Defendant in issuing tickets compulsorily to drivers at quarry sites and in presenting itself as a union are said to be illegal, wrongful and ultra vires. The Court is therefore invited to resolve all the issues for determination in favour of the Claimant and to grant the declaratory and injunctive reliefs sought.

SUBMISSIONS OF THE DEFENDANTS AGAINST THE ORIGINATING SUMMONS

The Defendant’s submissions are predicated on a firm opposition to the questions posed in the Originating Summons and the declaratory and injunctive reliefs sought by the Claimant. The Defendant adopts the issues as formulated by the Claimant but contends that, upon a proper construction of the relevant statutory provisions and constitutional guarantees, the Claimant is not entitled to the reliefs claimed. Central to the Defendant’s case is the argument that the Claimant seeks, under the guise of statutory interpretation, to establish a monopoly over unionism and quarry-related activities in Kano State, a position said to be inconsistent with both the Trade Unions Act and the Constitution of the Federal Republic of Nigeria 1999 (as amended).

At the threshold, the Defendant submits that the allegations of forceful issuance of tickets, intimidation, and unlawful interference have been expressly denied in the Counter-Affidavit and that there is no credible evidence before the Court establishing that the Defendant issued tickets to members of the Claimant or imposed dues on non-members. It is contended that the association on whose behalf the Defendant is sued is a duly registered association under extant laws in Nigeria and that it neither forcefully nor peacefully imposed tickets or levies on persons who are not its members. In the absence of cogent and uncontroverted affidavit evidence, the Defendant argues that the declaratory and injunctive reliefs sought cannot be granted.

On the substantive legal issues, the Defendant submits that Sections 1, 2 and 4 of the Trade Unions Act do not confer a monopoly of unionism or exclusive jurisdictional scope on the Claimant within Kano State. Particular reliance is placed on Section 12 (4) of the Trade Unions (Amendment) Act 2005, which provides that membership of a trade union by employees shall be 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 Defendant argues that this provision is clear and unequivocal in abolishing compulsory or automatic membership of trade unions and in affirming voluntariness as the governing principle of union membership. Consequently, it is submitted that the Claimant cannot assert an exclusive jurisdiction that would, in effect, compel all persons engaged in quarrying or tipper operations within Kano State to become its members.

In reinforcing this argument, the Defendant draws attention to Rule 4 of the Constitution of the Union of Tipper and Quarry Employers of Nigeria, which prescribes detailed procedures and conditions for membership, including application, recommendation, completion of forms, and payment of prescribed registration fees. It is contended that these provisions demonstrate that membership of the Claimant union is neither automatic nor compulsory but subject to clearly defined voluntary processes. The Defendant submits that unless these constitutional procedures are complied with, no person can lawfully be regarded as a member of the Claimant union. Therefore, any assertion of automatic or blanket jurisdiction over all operators in the sector would contradict the Claimant’s own constitutional framework.

The Defendant further anchors its case on the constitutional guarantee of freedom of association under Section 40 of the 1999 Constitution, which entitles every person to assemble freely and associate with others, including forming or belonging to any trade union or other association for the protection of his interests. The Defendant relies heavily on judicial authorities interpreting this provision. In Abdullahi v. Sabuwa & Ors (2015) LPELR-25954 (CA), the Court of Appeal, per Abiru, JCA, affirmed that the right to freedom of association gives every citizen the right to choose the association he wishes to belong to and that no one can be mandated to belong to any association against his choice. The Court reiterated that this right cannot be derogated from, citing authorities such as Agbai v. Okogbue (1991) 7 NWLR (Pt. 204) 391, Nkpa v. Nkume (2001) 6 NWLR (Pt. 710) 543, Musa v. INEC (2002) 11 NWLR (Pt. 778) 223 and Attorney-General of the Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1.

Of particular significance to the Defendant’s case is the decision in Registered Trustees of Association of Tippers and Quarry Owners of Nigeria v. Yusuf & Ors (2011) LPELR-5024 (CA). In that case, the Court of Appeal, per Kekere-Ekun, JCA (as he then was), held that the right to freely associate is unfettered and that no association can arrogate to itself the authority to compel all persons within a particular class to become its members. The Court declared it unconstitutional for an association to seek to compel all classes of tippers and quarry owners throughout the Federation to register as its members. The Defendant submits that this authority is directly on point and dispositive of the issues in the present case, as the Claimant’s reliefs similarly seek to establish a form of compulsory alignment with its union.

The Defendant also relies on the pronouncement of the Supreme Court in Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & Ors (2017) LPELR-41738 (SC), where Eko, JSC held that the right to freedom of association works both ways and that the persons one seeks to associate with must be willing to associate. The Court emphasized that none can be imposed by order of court on another and that the right to associate equally includes the right to dissociate. This authority is cited to underscore the argument that granting the Claimant’s reliefs would amount to judicially compelling the Defendant and others to associate with the Claimant, in violation of constitutional guarantees.

Further reliance is placed on the concurring opinion of Adumein, JCA in Registered Trustees of Association of Tippers and Quarry Owners of Nigeria v. Yusuf & Ors (supra), where the Court held that the constitutional right to freedom of association can only be derogated from as provided by the Constitution or a valid Act of the National Assembly. The Court reasoned that incorporation under Part C of the Companies and Allied Matters Act does not justify coercing every person to join an association and warned that granting reliefs compelling membership would be unconstitutional. The Defendant submits that, by parity of reasoning, the Claimant’s registration under the Trade Unions Act does not confer authority to compel all quarry operators or tipper drivers in Kano State to join its union or to prevent them from forming or belonging to other associations.

The Defendant therefore contends that Sections 1, 2 and 4 of the Trade Unions Act, when read together with Section 12 (4) of the same Act and Rule 4 of the Claimant’s Constitution, do not establish exclusivity or monopoly but rather operate within a legal regime that prioritizes voluntariness and freedom of association. The concept of “jurisdictional scope” as advanced by the Claimant, it is argued, cannot override constitutional and statutory guarantees of voluntary membership. To hold otherwise would amount to judicial endorsement of compulsion in matters of association.

In conclusion, the Defendant submits that resolving the issues in favour of the Claimant would effectively coerce the Defendant and other non-members to join the Claimant union or refrain from forming or participating in alternative associations, thereby infringing the constitutional right to freedom of association. Such an outcome, it is argued, would run contrary to Section 40 of the Constitution and the judicial authorities cited. The Court is accordingly urged to refuse the declaratory and injunctive reliefs sought and to dismiss the Originating Summons in its entirety.

CLAIMANT’S REPLY ON POINTS OF LAW

In his Reply on Points of Law to the Defendants’ written address filed on 27^th May, 2024, the Claimant maintains that the Defendants’ submissions are misconceived both in fact and in law and urges the Court to discountenance them in their entirety. The gravamen of the Claimant’s response is that credible and uncontroverted affidavit evidence has been placed before the Court establishing interference by the Kano State Tipper Drivers Association in the statutory jurisdiction of the Claimant as a registered trade union, and that the Defendants have failed to meet the evidential burden shifted upon them.

The Claimant submits, in answer to the arguments contained at pages 7 and 8 of the Defendants’ written address, that once it exhibited documentary evidence, particularly tickets issued by the Kano State Tipper Drivers Association, demonstrating acts of interference within the quarry industry, the burden of proof shifted to the Defendants. Rather than specifically traversing those facts, the Defendants merely offered general and sweeping denials. The Claimant places strong reliance on the decision of the Court of Appeal in Nwobodo v. M.O. Nyiam & Associates (2014) LPELR-22668 (CA), where the Court emphatically held that a mere general denial is ineffectual against specific depositions and that such unchallenged and credible affidavit evidence must be accepted and acted upon by the trial court. Per Onyeka Aja Otisi, JCA, the Court reiterated that where evidence, including affidavit evidence, is uncontroverted, it is deemed admitted and the court is bound to rely on it. On the strength of this authority, the Claimant contends that the evidence of interference stands un-assailed and ought to be accepted.

Responding to the Defendants’ invocation of the constitutional right to freedom of association under section 40 of the 1999 Constitution (as amended), the Claimant clarifies that the present suit does not seek to compel any person to join a particular union. Rather, it seeks to restrain unlawful encroachment into the jurisdictional scope statutorily conferred upon the Claimant as a registered trade union. The Claimant argues that the right to freedom of association, though constitutionally guaranteed, is not absolute and must be exercised within the confines of the Trade Unions Act and other relevant labour legislation.

In support of this proposition, the Claimant relies heavily on Governing Council of NTI, Kaduna & Anor v. NASU (2018) LPELR-44557 (CA), where the Court of Appeal held that by virtue of section 8 of the Trade Unions Act, eligibility for membership of a trade union is restricted to persons normally engaged in the trade or industry represented by that union. The Court, per Abubakar Datti Yahaya, JCA, made it clear that section 40 of the Constitution is subject to section 45 (1), which preserves laws reasonably justifiable in a democratic society for the protection of public order and the rights of others. The Trade Unions Act and the Labour Act were held to be consistent with this constitutional limitation. The Claimant submits that this authority affirms the principle that unionization is circumscribed by statutory jurisdiction and cannot be exercised arbitrarily.

Further reliance is placed on Executive Chairman & Management of Benue SUBEB v. NASU (2021) LPELR-55724 (CA), where the Court of Appeal, per Affen, JCA, underscored that while section 40 of the Constitution guarantees freedom of association, that right is qualified and subject to section 45 (1). Drawing from the Supreme Court decision in Osawe v. Registrar of Trade Unions (1985) 1 NWLR (Pt. 4) 755, the Court reaffirmed that freedom of association in trade union matters is not unfettered and cannot invalidate legislation regulating trade unions. The Supreme Court had earlier held that it is in the interest of public order to have systematised and responsible trade unions, thereby justifying statutory restrictions. The Claimant contends that these authorities conclusively establish that voluntarism in trade union matters exists only within the structure and limits imposed by statute.

The Claimant further draws a clear legal distinction between a registered trade union and a mere incorporated association. While a trade union derives its powers and jurisdiction from the Trade Unions Act and the Third Schedule thereto, an association registered under the Companies and Allied Matters Act does not acquire the statutory authority to unionize workers or employers within a defined trade. In this regard, the Claimant relies on the decision of the National Industrial Court in Nigerian Union of Mine Workers & Ors v. Registered Trustee of Quarry Products Sellers, Marketers & Logistic Provider Association & Ors (Suit No. NICN/IB/52/2019, judgment delivered on 6^th  May, 2020 by Hon. Justice J. D. Peters). The Court held unequivocally that registration as an incorporated trustee does not clothe an association with the status or powers of a registered trade union, nor does it permit encroachment into areas statutorily allocated to a trade union. The Court advised that an association desirous of operating as a trade union must seek registration from the Registrar of Trade Unions.

The Claimant also relies on Union of Tipper & Quarry Employers of Nigeria v. The Incorporated Trustees of Lagos Ogun Tipper Workers Welfare Association of Nigeria (LOTWWAN) & Ors (Suit No. NICN/LA/49/2015, judgment delivered on 9^th  December 2021 by Hon. Justice O.A. Obaseki-Osaghae. In that case, the National Industrial Court held that the jurisdictional scope of trade unions in Nigeria is statutorily regulated and derived from the Trade Unions Act. The Court emphasized that voluntarism and freedom of choice must operate within the limits of the law and cannot extend beyond the defined jurisdictional boundaries of registered trade unions. Relying also on NCSU v. ASCSN (2004) 1 NLLR (Pt. 3) 429 and Osawe v. Registrar of Trade Unions (supra), the Court held that the right to choose which union to belong to is a qualified right and subject to statutory regulation.

Applying these authorities to the facts of the present case, the Claimant submits that the Kano State Tipper Drivers Association, not being a registered trade union under the Trade Unions Act, lacks the statutory authority to unionize persons within the quarry industry or to issue tickets purporting to regulate members operating within the Claimant’s jurisdictional scope. The Claimant argues that its jurisdictional scope, as recognized by the relevant statutory framework and administrative authorities, covers the unionization of tipper and truck owners and employers in the quarry industry, including drivers who own the trucks they operate. Any attempt by the Defendant association to operate within that space constitutes unlawful interference.

Finally, the Claimant submits that having established through affidavit evidence that the Defendants have intimidated, harassed, and issued tickets to persons within the Claimant’s statutory domain, this Court is empowered to grant injunctive relief. The Claimant again relies on Nigerian Union of Mine Workers v. Registered Trustee of Quarry Products Sellers, Marketers & Logistic Provider Association & Ors (supra), where the National Industrial Court granted an order of injunction restraining the defendant association from interfering with the claimant union’s jurisdiction. On the authority of that decision, the Claimant urges this Court to similarly restrain the Defendants from further acts of interference.

In conclusion, the Claimant contends that the Defendants’ reliance on section 40 of the Constitution and the authorities cited in their written address is misplaced and inapplicable to the facts of this case. The Claimant therefore urges the Court to reject the Defendants’ submissions, uphold the statutory exclusivity of the Claimant’s jurisdictional scope and grant the reliefs sought.

DECISION OF THE COURT

This action was commenced by Originating Summons filed on 12^th March 2024. The Claimant seeks the interpretation and application of Sections 1, 2 and 4 of the Trade Unions Act (as amended) in relation to the activities of the Defendant at quarry sites in Kano State. The principal complaints are that the Defendant, not being a registered trade union under the Act, has forcefully issued tickets to drivers of tippers and trucks at quarry sites, interfered with the Claimant’s jurisdictional scope of unionization, and paraded itself as a trade union.

The Defendant filed a Counter-Affidavit denying the material allegations and contending that it is merely an association of tipper drivers exercising their constitutional right to freedom of association under Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Both parties filed written addresses and the Claimant filed a Reply on Points of Law.

However before going to the merit of the case, it is imperative to consider two (2) interlocutory applications, starting with the motion to strike out the names of the 2^nd to 5^th Defendants. I have carefully read and considered the motion paper, the affidavit evidence and exhibits, the Counter Affidavit, as well as the written submissions of learned counsel on both sides. I have also considered the processes already before the Court and the applicable Rules and authorities cited by counsel. The sole issue for determination, as adopted by both parties, is whether the Claimant is entitled to the reliefs sought in the application.

The law on amendment of processes is settled and well known. Amendment is aimed at bringing the real issues in controversy before the court for effective adjudication, and courts are enjoined to grant amendments liberally in the interest of substantial justice, provided no injustice is occasioned to the adverse party which cannot be compensated by costs. See First Bank of Nigeria (Nig.) Plc v. M.O. Kano & Sons & Co. (1999) 9 NWLR (Pt. 619) 484; Ojah v. Ogboni (1976) 4 SC 69; Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214. This discretionary power is clearly donated to this Court by Order 26 of the NICN Rules, 2017.

However, this liberality is not without limits. It is equally settled that an amendment will not be granted where it will substitute a completely different cause of action, introduce a new and distinct party where none existed before, or where the original process is fundamentally incompetent. Courts have consistently drawn a distinction between a curable defect and a fundamental vice that goes to jurisdiction.

A crucial aspect of this application is whether the amendment sought is merely to correct a misnomer or whether it is an attempt to cure a fundamental defect relating to parties. Misnomer, in law, refers to a situation where the correct party is before the court but is described by a wrong or inaccurate name. It does not apply where the wrong party is sued. This distinction has been firmly settled by the Supreme Court and the Court of Appeal in a long line of authorities. See Registered Trustees of Airline Operators of Nigeria v. NAMA (2014) 8 NWLR (Pt. 1408) 1; Emespo J. Continental Ltd v. Corona S. & Co. (2006) 11 NWLR (Pt. 991) 365; Yohanna v. Gabriel (2020) LPELR-49948 (CA); Rabiu v. Sinohydro ABJ Ltd (2023) LPELR-60601 (CA).

In Registered Trustees of Airline Operators of Nigeria v. NAMA (supra), the Supreme Court made it clear that misnomer occurs when the correct person is brought before the court under a wrong name, not where there is a mistake as to the identity of the party sued. Similarly, in Yohanna v. Gabriel (supra), the Court of Appeal emphasized that where the wrong party is sued, such a defect is not a misnomer and cannot be cured by amendment.

Applying these settled principles to the facts of the present case, I agree with the Defendants that the amendment sought goes beyond the correction of a mere misnomer. From the Originating Summons, the Claimant clearly and deliberately sued five named individuals, describing them with specific personal names and additional identifications. There is nothing on the face of the originating process suggesting that the Claimant merely misstated the juristic name of an already intended corporate or incorporated body. Rather, identifiable natural persons were sued.

The present application seeks, first, to strike out four of those persons and, secondly, to transform the suit against the remaining individual into one against “Incorporated Trustees of Kano State Tipper Drivers Association.” This, in substance, is not a correction of name but a substitution of parties. It is an attempt to replace the originally sued defendants with a different juristic entity altogether. The law is clear that such a fundamental alteration does not fall within the purview of misnomer.

Furthermore, the affidavit evidence relied upon by the Claimant to show that the 1^st Defendant is a trustee of the association does not cure the fundamental problem. An association incorporated under Part C of the Companies and Allied Matters Act can only sue or be sued in the name of its incorporated trustees, collectively, and not through a single trustee sued in his personal name. This position has been consistently affirmed by the Court of Appeal, including in Akpan & Ors v. Umoren & Ors (2012) LPELR-7909 (CA).

I am therefore persuaded that the Claimant’s application is not aimed at correcting a mere descriptive error but at reconstituting the suit by substituting the proper defendant. In the final analysis, I find merit in the Defendants’ opposition. The application lacks merit and is hereby refused.

Next is the Notice of Preliminary Objection. This calls for a careful examination of two related but distinct questions: whether the Claimant, as constituted, possesses the requisite juristic personality to institute this action, and whether the Defendants were properly sued having regard to the corporate status of the Kano Tipper Drivers Association. Both questions touch on the competence of the action and, by necessary implication, the jurisdiction of this Court, for it is elementary that jurisdiction is activated only when there is a competent Claimant and a competent defendant before the Court.

The law is firmly settled that only natural persons and juristic persons can sue and be sued. A juristic person is one whose legal existence is recognized by law, either expressly by statute or by incorporation under a statutory regime. The Supreme Court in Dikko & Sons Limited v. Corporate Affairs Commission (2022) LPELR-61152 (SC) reaffirmed that juristic personality and locus standi are foundational conditions precedent to the assumption of jurisdiction by a court of law. Earlier authorities such as Apostolic Church, Ilesha v. Attorney-General, Mid-West State (1972) 4 SC 150 and Iyke Medical Merchandise v. Pfizer Inc. (2001) MJSC 136 underscore the same principle. Where an action is instituted by a non-juristic entity, the proceeding is incompetent and liable to be struck out.

The Defendants/Applicants contend that the Claimant, described as “Union of Tipper and Quarry Employers of Nigeria (Kano State Chapter),” is not the same entity as the body named in the Certificate of Registration of Trade Union, which bears the name “Union of Tipper and Quarry Employers of Nigeria” simpliciter. They argue that the addition of “Kano State Chapter” creates a distinct and unknown legal person, and that only the precise name appearing on the certificate enjoys juristic personality. Heavy reliance was placed on Incorporated Trustees of Holy Apostles Church, Ayetoro v. Incorporated Trustees of Oneness Faith of Christ Ministry, Ayetoro (2016) LPELR-41368 (CA), where the Court of Appeal held that a branch of an incorporated trustee under the Companies and Allied Matters Act lacks juristic personality separate from the parent body.

There is no doubt that in the context of incorporated trustees under the Companies and Allied Matters Act, the principle is strict: the only juristic person recognized is the incorporated trustees in the exact name appearing on the certificate of incorporation. The doctrine of corporate personality, rooted in Salomon v. Salomon (1897) AC 22 and reiterated in Ostankino Shipping Co. Ltd v. Owners of the MT Bata 1 (2021) LPELR-58308 (SC), admits of no variation. A branch of an incorporated trustee does not, without more, acquire separate legal existence.

However, the present case does not concern an incorporated trustee under CAMA but a registered trade union under the Trade Unions Act. The distinction is not cosmetic; it is substantive. Trade unions occupy a special statutory position in our labour jurisprudence. By virtue of their registration under the Trade Unions Act, they acquire legal personality. More importantly, the practice and jurisprudence of the National Industrial Court have long recognized the peculiar operational structure of trade unions, which function through branches, state councils, and units that prosecute disputes arising from local industrial relations realities.

The decisions of this Court in Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria (2008) 33 NLLR (Pt. 33) 407 and subsequent cases have acknowledged that branches and units of registered trade unions may properly approach the Court to ventilate grievances peculiar to them. In Dr. O. Odusote v. Lagos State Government (Suit No. NICN/LA/158/2012, delivered 24 May 2012), the Court expressly affirmed this practice, recognizing that to insist on the joinder of the national body in every dispute would unduly hamper access to justice and frustrate the effective resolution of labour disputes. Similarly, in Union of Tipper & Quarry Employers of Nigeria v. National Union of Road Transport Workers, Ogun State Chapter (Suit No. NICN/LA/265/2017, judgment delivered 5^th May, 2022, this Court reiterated that branch unions have the right of audience before it.

The authority of Incorporated Trustees of Holy Apostles Church (supra), heavily relied upon by the Applicants, is therefore distinguishable. That decision was rendered in the context of incorporated trustees under CAMA, not in respect of registered trade unions operating within the framework of the Trade Unions Act and the specialized jurisdiction of this Court. The structural and statutory differences between the two regimes cannot be ignored. To transplant wholesale the CAMA principle on branches of incorporated trustees into the realm of trade unions would be to overlook the unique character of labour relations and the long-standing jurisprudence of this Court.

In the circumstances, I am persuaded that the description of the Claimant as “Union of Tipper and Quarry Employers of Nigeria (Kano State Chapter)” does not create a separate and unknown legal entity but merely identifies the local branch of a registered trade union acting within its recognized operational sphere or space. The addition of the geographical description does not amount to the creation of a new legal personality; rather, it denotes the locus of the dispute. In labour adjudication, substance must prevail over technicality. I therefore hold that the Claimant, as a branch of a duly registered trade union, is competent to institute this action before this Court.

The second limb of the objection concerns the propriety of suing the 1^st to 5^th Defendants “on behalf of” the Kano Tipper Drivers Association, which is said to be a registered incorporated trustee. The general principle is beyond dispute: once incorporated, trustees acquire legal personality and can sue or be sued in the registered name indicated on the certificate of incorporation. Section 830 (1) (c) of the Companies and Allied Matters Act, 2020 so provides. The Court of Appeal in Akpan v. Umoren (2012) LPELR-7909 (CA) affirmed that such bodies must litigate in the name reflected on the certificate. Where persons who are not trustees are sued in a representative capacity on behalf of an incorporated body, the action may be incompetent, as illustrated in Yohanna v. Gabriel (2020) LPELR-49948 (CA).

The crucial factual question, however, is whether any of the Defendants sued in a representative capacity are indeed registered trustees of the Association. The materials before the Court, particularly Exhibit CR1 attached to the Counter-Affidavit, indicate that the 1^st Defendant is a registered trustee of the Kano Tipper Drivers Association. His name appears on the certificate of incorporation. This fact distinguishes the present case from Yohanna v. Gabriel, where the individuals sued were not trustees at all.

Where the correct legal person is before the Court but is described in an inaccurate or incomplete manner, the error is one of misnomer rather than a fundamental defect. The Supreme Court has consistently held that a misnomer, as opposed to suing a non-existent or wrong party, is curable by amendment. The underlying rationale is that the Court is concerned with substance and not mere technical description. If the incorporated trustees are effectively represented by one of their registered trustees properly before the Court, the ends of justice would not be served by striking out the action on a purely formal ground.

In the present case, at least one registered trustee of the Association is properly sued and is before the Court. The existence of the Association is not in dispute. The complaint is essentially that the incorporated body was not sued in its precise registered name. In my considered view, this is at worst an irregularity in description, amenable to correction by amendment, and does not go to the root of jurisdiction. To hold otherwise would elevate form above substance and defeat the overriding objective of this Court to dispense substantial justice in labour matters.

For these reasons, I find that the Claimant, as a branch of a registered trade union, possesses the requisite capacity to institute this action before this Court. I further hold that the manner in which the Kano Tipper Drivers Association has been sued does not render the suit incompetent, any defect therein being a curable misnomer rather than a fundamental vice. The Notice of Preliminary Objection accordingly lacks merit and is hereby dismissed. The case shall proceed to hearing on the merits.

Now, to the merits of the case. Having carefully examined the Originating Summons, the affidavit evidence, the exhibits annexed thereto, the Counter-Affidavit, the written submissions of counsel and the authorities cited, this Court is of the considered view that the questions submitted for determination may conveniently be resolved together. The central issue is whether a body not registered as a trade union under the Trade Unions Act can lawfully perform acts in furtherance of trade union purposes within the jurisdictional scope statutorily allocated to a registered trade union, and whether the Defendant’s acts, as established by the evidence, amount to unlawful interference.

At the outset, it is not in dispute that the umbrella body of the Claimant, the Union of Tipper and Quarry Employers of Nigeria (UTQEN), is a registered trade union under the Trade Unions Act. The certificate of registration and the Gazette publication evidencing amendment of its constitution were exhibited. There is also no credible evidence before the Court that the Defendant is registered as a trade union under the Trade Unions Act. The Defendant did not exhibit any certificate of registration as a trade union; rather, its case is that it is an association of drivers.

The legal framework is clear. Section 1 of the Trade Unions Act defines a trade union as any combination of workers or employers formed for the purpose of regulating the terms and conditions of employment of workers. Section 2 (1) of the Act provides in mandatory terms that a trade union shall not perform any act in furtherance of the purpose for which it has been formed unless it has been registered under the Act. Section 4 requires every trade union to have registered rules regulating its internal governance.

The language of Section 2 (1) is plain and admits of no ambiguity. The Supreme Court in Kassim v. Sadiku & Ors (2021) LPELR-55334 (SC) and Nwankwo v. Yar’Adua (2010) LPELR-2109 (SC) reiterated that where the words of a statute are clear and unambiguous, they must be given their ordinary meaning. Applying that canon, it is evident that registration is a condition precedent to the lawful performance of trade union functions.

The Defendant has strongly relied on Section 40 of the Constitution and on Registered Trustees of Association of Tippers and Quarry Owners of Nigeria v. Yusuf & Ors (2011) LPELR-5024 (CA) to argue that freedom of association is unfettered and that no monopoly can be created in favour of the Claimant. This Court accepts, without hesitation, that freedom of association is a fundamental right and that membership of a trade union is voluntary. Section 12 (4) of the Trade Unions (Amendment) Act 2005 reinforces that no employee shall be compelled to join a trade union.

However, constitutional rights are not absolute. Section 45 (1) of the Constitution expressly permits laws that are reasonably justifiable in a democratic society for the protection of public order and the rights of others. In Osawe v. Registrar of Trade Unions (1985) 1 NWLR (Pt. 4) 755, the Supreme Court held that freedom of association in the context of trade unions is subject to statutory regulation and that such regulation is justified in the interest of public order. This position was reaffirmed in Governing Council of NTI, Kaduna v. NASU (2018) LPELR-44557 (CA) and Executive Chairman, Benue SUBEB v. NASU (2021) LPELR-55724 (CA), where the Court of Appeal emphasized that unionization operates within statutorily defined jurisdictional boundaries.

The distinction between a registered trade union and an incorporated association has also been judicially recognized. In Nigerian Union of Mine Workers v. Registered Trustees of Quarry Products Sellers, Marketers & Logistic Provider Association (NICN/IB/52/2019, judgment delivered on the 6^th May, 2020, the National Industrial Court held that registration under the Companies and Allied Matters Act does not clothe an association with the powers of a registered trade union nor permit it to encroach upon areas statutorily allocated to a trade union. This reasoning is persuasive and accords with the clear provisions of Section 2 of the Trade Unions Act.

The Defendant’s argument that the Claimant seeks to compel universal membership is, with respect, a misconception of the reliefs sought. The reliefs do not compel any person to join the Claimant union. Rather, they seek to restrain the Defendant from forcefully issuing tickets, compelling persons to join its association, and parading itself as a trade union. There is a fundamental difference between protecting statutory jurisdiction and imposing compulsory membership.

On the affidavit evidence, the Claimant exhibited copies of tickets allegedly issued by the Defendant at quarry sites. The Defendant denied issuing those tickets but did so in general terms and did not provide any documentary evidence. The Court of Appeal in Nwobodo v. M.O. Nyiam & Associates (2014) LPELR-22668 (CA) held that a mere general denial is insufficient to controvert specific depositions supported by documentary exhibits. Where affidavit evidence is unchallenged and credible, the Court is bound to act on it. In the present case, the Defendant’s denial is bare and unsupported.

Furthermore, even on the Defendant’s own showing, it collects dues and issues tickets to its members at quarry sites. If such acts are undertaken in furtherance of regulating drivers within the quarry industry, they fall within the statutory conception of trade union activities. By virtue of Section 2 (1) of the Trade Unions Act, such acts cannot lawfully be undertaken by a body not registered as a trade union.

This Court must stress that the issue is not whether drivers may form an association. They may. The issue is whether such an association may usurp statutory trade union functions in a sector for which a registered trade union exists and has defined jurisdiction. The Trade Unions Act was enacted precisely to prevent chaotic multiplicity and conflict in industrial relations. As observed in Osawe v. Registrar of Trade Unions (supra), systematized and responsible trade unionism is in the interest of public order.

On the totality of the evidence and the law, this Court finds that the Defendant, not being a registered trade union under the Trade Unions Act, cannot lawfully perform acts in furtherance of trade union purposes within the quarry industry in Kano State. Any forceful issuance of tickets, compulsion of drivers, or interference with the Claimant’s statutory jurisdiction constitutes an unlawful encroachment.

Accordingly, the questions for determination are resolved in favour of the Claimant.

Reliefs 1, 2 and 3, being declaratory in nature and supported by credible evidence and the applicable law, are hereby granted.

Reliefs 4, 5 and 6, seeking orders of perpetual injunction restraining the Defendant, its servants, agents or privies from forcefully issuing tickets at quarry sites, interfering with the Claimant’s jurisdictional scope, compelling members of the Claimant to join the association, or parading itself as a trade union, are also granted.

Judgment entered accordingly with no order as to cost.

 

 

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HON. JUSTICE M. A. NAMTARI