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NICN - JUDGMENT

 

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

 

 

DATE: 22ND JULY, 2025                         

SUIT NO. NICN/ABJ/102/2024

 

BETWEEN 

  1. EMMANUEL IBEKWE ONWUEZOBE
  2. STEPHEN CHUKWUDI OSAMADE              -             CLAIMANTS

 

AND

 

  1. COMRADE ADEDAMOLA ADENIRAN
  2. AMALGAMATED UNION OF APP-BASED

TRANSPORTERS OF NIGERIA                                 -            DEFENDANTS

 

REPRESENTATION:

Ifeoluwa Adigun, Esq., for the Claimants

Austin O. Otah, Esq., with Philia E. Ejete, Esq., for the Defendants

 

JUDGMENT

  1. By an Originating Summons dated 18th of April, 2024 the Claimants prayed to the Court for the determination of the following questions-
  2. WHETHER on the interpretation of Article 2 of the constitution of the 2nd Defendant the constitution of the said union is binding on all members of the 2nd Defendants and the union (2nd Defendant)?
  3. WHETHER on the interpretation of Article 4 of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria membership of the union is open to persons who are not self – employed App-Based Transporters in the Federal Republic of Nigeria?
  4. WHETHER on the interpretation of Article 30 (5) of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria a public officer can stand for nomination and be elected as an officer of the Amalgamated Union of App-Based Transporters of Nigeria?
  5. WHETHER on the interpretation of section 318 of the 1999 Constitution as amended a person in the employment of the National Institute of Police Studies is a public officer?
  6. It is the case of the Claimant that if question 1 and 4 are answered in the positive and questions 2 and 3 are answered in the negative, the Claimant therefore seeks the following reliefs:
  7. A Declaration that Article 2 of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria is binding on all members of the union and the union and the 2nd defendant is bound to comply with Article 4 and 5 of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria.
  8. A Declaration that the 1st Defendant is a public officer?
  9. A Declaration that the 1st defendant is not a self-employed App-Based Transporter to qualify for membership of the 2nd Defendant.
  10. A Declaration that the 1st Defendant cannot become an officer of the 2nd defendant being a public officer
  11. An Order directing the 2nd defendant to remove the 2nd defendant as the officer of the 2nd defendant and forward same to the appropriate authorities and the Registrar of Trade Union
  12. An injunction restraining the 1st defendant from parading himself as an officer (President) of the 2nd Defendant.

 

  1. Accompanying the Originating Summons is a Thirteen (13) Paragraphs Affidavit deposed to by the 1st Claimant, wherein he averred that by virtue of Article 2 of the Constitution of the 2nd Defendant is binding on the members of the 2nd Defendant and the 2nd Defendant. Also, by virtue of Article 4 of the Constitution of the 2nd Defendant membership of the 2nd Defendant is open only to persons who are self-employed App-Based Transporters in the Federal Republic of Nigeria. it is equally his averment that by virtue of Article 30 (5) of the Constitution of the 2nd Defendant a public officer cannot be an officer of the 2nd Defendant and that after the 1st Defendant became an officer of the 2nd Defendant the Claimants found out that the 1st Defendant is a public officer employed in the service of the National Institute of Police Studies. That he stumbled on a document from the said Institute to that effect as far back in 2021 wherein the said Institute put a notice to the whole world that the 1st Defendant is in their employment and that he duly informed that 2nd Defendant that the 1st Defendant is a public servant hence cannot be a member or officer of the 1st Defendant but to no avail. He further averred that the 1st Defendant still parades himself as an officer of the 2nd Defendant and that he knows that by Article 16 of the Constitution of the 2nd Defendant the office of the President of the 2nd Defendant which the 1st Defendant occupies is a full time job that needs full attention and that is why the Union prohibits a Public officer from being an officer of the Union. that it is in the interest of justice to grant this Originating Summons.

 

  1. Also filed is a written address wherein four issues were raised for the determination in this suit, which is:
    1. WHETHER on the interpretation of Article 2 of the constitution of the 2nd Defendant the constitution of the said union is binding on all members of the 2nd Defendants and the union (2nd Defendant) and thus the Claimant are entitled to Relief 1?
    2. WHETHER on the interpretation of Article 4 of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria membership of the union is open to persons who are not self – employed App-Based Transporters in the Federal Republic of Nigeria and thus the Claimants are entitled to Reliefs 2,3,4, 5 and 6?
    3. WHETHER on the interpretation of Article 5 
    4. of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria a public officer can stand for nomination and be elected as an officer of the Amalgamated Union of App-Based Transporters of Nigeria and thus the Claimants are entitled to Relief 2,3,4.5 and 6?
    5. WHETHER on the interpretation of section 318 of the 1999 Constitution as amended a person in the employment of the National Institute of Police Studies is a public officer and thus the Claimants are entitled to Reliefs 2,3,4,5 and 6?

 

  1. On issue one Counsel submitted that this Court ought to resolve same in the positive. He went on to state that by virtue of Article 2(1) of the Constitution of the 2nd Defendant, it is clear that the Constitution is binding on the 2nd Defendant and its members. He made reference to paragraphs 1 and 5 of the Affidavit in support of the Originating Summons and that case of Elufioye v. Halilu [1993] 6 NWLR (Pt. 301) 570. He urge the Court to hold that Claimants are entitled to Relief 1.

 

  1. Taking issues 2-4 together learned Counsel started by praying the Court to resolve the questions in favour of the Claimants and grant Reliefs 3-6. Counsel went on to rely on the case of Utih v. Egorr [1990] 5 NWLR (Pt.153) 771 @ 781 Paras F-G; C.B.N V. Njemanze [2015] 4 NWLR (Pt. 1449) 276 @ P 287 Paras C-D; 287-288 Paras H-G and Section 318 of the 1999 Constitution as amended wherein Public Officer is defined reiterating it has been established that the 1st Defendant is a Public Officer and thus by virtue Articles 4 and 5 of the Constitution of the 2nd Defendant cannot be a member and or officer of the 2nd Defendant consequently cannot equally parade himself as an officer and or member of the 2nd Defendant. In Conclusion, Counsel posited that based on the arguments above, he urge the Court to resolve all the issues in favour of the Claimants and grant all the reliefs as contained in face of the Originating Summons.

 

  1. In opposition to the Originating summons, the 2nd Defendants Counsel filed a 4 paragraph counter affidavit deposed to by one Comrade Ayoade Muslim Ibrahim wherein he averred that by the provision of Article 2 of the Constitution of the 2nd Claimant, the Constitution is binding on the members of the 2nd Claimant and that 2nd Claimant and that by virtue of Article 4 of the Constitution membership is only open to persons who are self-employed App-Based Transporters in Nigeria. He equally averred that by virtue of Articles 30(5) of the Constitution of the 2nd Claimant a public officer cannot be an officer and or member of the 2nd Claimant. More so it is the against that Public Service Rules for a public officer to engage in other work like a Transporter. In furtherance to the above he averred that it was after the 1st Claimant became an officer of the 2nd Claimant that members discovered that he is a public officer but that he knows of a fact that the 2nd Claimant has now received a petition to that regard and are equally in possession of a document from the said Institute to that effect. That the 2nd Defendant is ready to uphold its Constitution and remove any person who ought not to be its member and also ready to abide by the verdict of this Court in this suit.

 

  1. Also filed is a written address wherein Counsel for the 2nd Defendant framed sole issue for the Court’s determination;

Whether or not the Claimants are entitled to reliefs sought

  1. It is the argument of the 2nd Defendants Counsel that the 2nd Defendant is ready to uphold its Constitution. He equally stated that the 2nd Defendant was not aware that the 1st Defendant was a public officer as at the time the 1st Defendant was admitted as a member and official of the 2nd Defendant and that it is ready to abide by the Constitution and remove any person who ought not to be a member of the 2nd Defendant. That the 2nd Defendant prefers this Court to interpret whether the 1st Defendant can be a member of the 2nd Defendant.

 

  1. 1st Defendants in response filed a notice of preliminary objection dated 11th day of November, 2024 pursuant to Order 15 Rule 1(a) and Order 17 Rule (9) of National Industrial Court (Civil Procedure) Rules 2017 and under the inherent jurisdiction of this Court praying the Court for the following orders;

[

  1. AN ORDER striking out or dismissing this suit for being incompetent and in breach of the Rules of this Honurable Court.
  2. AN ORDER that this Court lacks jurisdiction to entertain this suit.
  3. AND FOR SUCH further order (s) as this Honourable Court may deem fit to make in the circumstances.

The Grounds upon which this application is predicated is as follows; 

  1. The Claimants/Respondents [‘Respondents’] are not proper parties in this suit as they have no locus standi and having no standing to institute this suit renders it incompetent and void ab initio.
  2. The Respondents have not demonstrated that they are members of the Amalgamated Union of App-Based Transporters of Nigeria (AUATON) in accordance with Article 4 of the Union’s Constitution and so do not have capacity as they have not shown cogent proof of their membership at the time of institution of this suit or at all therefore cannot competently institute this suit.
  3. The Respondents even if they were members which is truculently denied, would have failed to comply with the requirements under the Union’s Constitution for dealing with grievances and by their conduct have breached Article 4 (h) and 4 (n) of the said Constitution. This suit therefore is premature ab initio. They have not pursued to any logical conclusion any grievance they may have internally within the Union.
  4. This suit discloses no reasonable cause of action whatsoever against the 1st Defendant/Applicant [‘Applicant’] and should be dismissed or struck out in his favour with costs. Mere allegations/s alone without cogent reasons and demonstrable proofs is/are not enough to establish a reasonable cause of action.
  5. The Respondents have failed to comply with the requirements under the National Industrial Court (Civil Procedure) Rules 2017. See O 38 R 35.
  6. The depositions of the Respondents in their affidavit in support of their suit and their exhibits contradict each other factually and materially:
    1. Paragraph 6 of the Affidavit of the Respondents clearly states that the membership of the 2nd Defendant is only open to persons who are self-employed App-Based Transporters in the Federal Republic of Nigeria but the evidence they provided in support against the Applicant does not support their averment that he is not qualified to be a member of the 2nd Defendant.
    2. The Respondent aver in Paragraphs 7-8 of their Affidavit that the Applicant is a public officer in employment with the National Institute of Police Studies [‘NIPS’] but their Exhibits contradicts their averment as clearly states that the Applicant was a ‘Part time Research Fellow” at NIPS. He however had not carried out any further research there since 2020.
    3. Paragraph 11 of the Respondents’ Affidavit states that the office of the President of the 2nd Defendant/Respondent that is the Union AUATON is full time job but they failed to show yet again that the Applicant is full employment. 
  7. The Counter Affidavit filed by the Applicant in this suit contradicts in all material particulars, all the relevant depositions in the Affidavit in support of the Respondents’ Originating Summons.
  8. This suit is therefore a gross abuse of Court process not only on the grounds of fraudulent misrepresentation but that this suit should not even have been brought by Originating Summons as it is settled law which is supported by rules of Court that an Originating Summons is used for actions which border on the interpretation of statutes and documents and not for suits where the facts as in this case are wholly disputed and contested by the parties. It should therefore have come by way of Complaint.
  9. The actions of the Respondents are misleading and deceptive in that they have failed to follow the AUATON Constitution in first airing their grievances with the Union before proceeding to Court which is in breach of Article 4 (h).
  10. It is in the interest of justice that the claim against the Applicant be dismissed or struck out with substantial costs and that he be discharged from this suit forthewith.
  11. It is merely a frivolous suit without substance or merit seeking to mislead the Honourable Court.
  12. This suit should therefore be dismissed by reason of being incompetent for lack of locus standi for lack of compliance with Rules of Court for abuse of Court process and being based on the Respondents’ false, fraudulent and misleading claims and misrepresentations of their status and capacity with AUATON at the time of filing this suit with substantial costs.

 

  1. Accompanying this Notice of Preliminary Objection is a 11 paragraphs affidavit deposed to by the 1st Defendant who is National President of Amalgamated Union of App-based Transporters of Nigeria. Also filed is a written address wherein Counsel for the Defendants framed sole issue for the Court’s determination;

[           Whether the 1st Defendant/Applicant herein is entitled to the relief/s sought in this preliminary objection. 

  1. It is the position of Counsel that the answer to this issue for determination is in the affirmative. With respect to proper party, Counsel argued that for an action to succeed parties must be shown to be proper parties to whom rights and obligations arise from the cause of action and they must show that the subject matter or cause of action is such that cannot be settled unless they are made a party. He equally posited that the Respondent failed to supply any evidence to prove their membership with the Union and the absence of such proof has not demonstrated more ardent and significant interest than actual members of AUATON to justify them competently bringing and being a party in this suit. He placed reliance on the case of Ehidimhen v. Musa [2000] FWLR (Pt. 21) 930 @ 962 Para E-H. Counsel equally posited that the issue jurisdiction is vital and any matter dealt with without the Court having jurisdiction is a nullity. He placed reliance Amadiume & Anor v. Ibok & Ors 2005 LPELR 5730 Pp.10-11 Para C; Alhaji Lawan Sarkin Tsaha v. Union Bank of Nigeria Plc [2002] FWLR (Pt. 97) 765 @ 771 Para. E-F and Transmission Company of Nigeria P.H.C.N v. Adamawa State Board of Internal Revenue [2020] Legalpedia (CA0)01819. It is equally the position of Counsel that the subject matter of this suit relates to the internal domestic affairs of the Union, a voluntary association which is not justiciable before this Court reiterating that the Respondents have not exhausted all appeals before instituting this suit. He cited in support of his assertion the case of Adeyemi v. The National Iron Ore Mining Co Ltd [1999] 6 NWLR (Pt. 607) 504 and Article 4(h) and 6 (b) (ii) of AUATON Constitution. Regarding cause of action, it is the position of Counsel that Claimant’s suit also fails because it does not disclose any reasonable cause of action against the Defendant/Applicant as the grounds for their claims are not within the sphere of the Union’s Constitution. He further stated that it is a trite3 position of law that where a suit discloses no reasonable cause of action it will be struck out by the Court. He relied on the case of Babatope v. Sadiku & Anor [2017] LPELR -41966 (CA) P.14 Paras D-F; Mcfoy v. UAC Ltd [1962] 1 AC 100 @ P.160; Okafor v. Nweke [2007] 10 NWLR (Pt.1043) 521; Alfred Akporido & Ors v. Petroleum Training Institute [2012] LPELR-9819 (CA); S.A Akinola v. Wema Bank Plc [2014] LeagalPedia CA 149E and Chevron Nigeria Limted v. Lonestar Drilling Nigeria [2007] 7 SC (Pt. II) 27. On the whole learned Counsel posited that Claimant/Respondent who cannot show that he has a legal right or interest in the matter in controversy or that thye reliefs he seeks would directly affect or benefit him cannot maintain an action in Court. The Court should not entertain a suit brought by a party without legal standing or sufficient interest on the subject matter of the litigation. He urge the Court to grant this application on the ground that it has merit and in the interest of justice.

 

  1. Also the 1st Defendant filed a 7 Paragraph counter affidavit to the 2nd Defendant’s affidavit dated 11th Day of November 2024 deposed to by 1st Defendant himself wherein he averred that the 2nd Defendant did not grant and could not have granted consent to the purported deponent on its behalf one Mr. Ayoade Muslim Ibrahim to depose to this or any affidavit of counter affidavit on behalf of the Union’s  behalf  because he had been removed or sacked from the office and executive role of General Secretary. That the Union wrote the Court that Mr. Ibrahim is fraudulently misrepresenting to the Public that he is still the current official of AUATON. Furthermore, the 2nd Defendant’s exhibit AM1 shows a purported AUATON ID card for a member of AUATON but there is no evidence to show that the deponent is an official of the Union more so AM1 does not look like official AUATON ID card. It is equally his averment that Mr. Ibrahim is no longer an executive official of AUATION having been dismissed from the position as General Secretary. He went on to aver that the evidence produced by the Claimants attached to their affidavit in support of their Originating Summons does not support their averment rather it contradicts them and that records of full details of his employment status would show qualification to contest for position of president wherein he was duly elected. That the 2nd Defendant has since heard and determined the petition brought against him and absolved him of the accusations. He averred that he knows of a fact that all the internal complaint procedures of the 2nd Defendant have not been exhausted by the Claimants.

 

  1.   Filed alongside the counter affidavit is a written address wherein Counsel on behalf of the 1st Defendant formulated a lone issue for the Court’s determination thus;

 

Whether a valid cause of action has been disclosed against the 1st Defendant.

 

  1. Learned Counsel adopted his arguments as contained in his objection on the grounds that it applies herein and equally applies to the 2nd Defendant. He went on to state that Claimants are not proper parties in this suit as they have no locus standi and having no standing to institute this suit renders it incompetent and void ab initio. Again, he posited that the Claimants have not demonstrated that they are members of AUATON hence do not have capacity as they have not shown cogent proof of their membership at the time of instituting this suit or at all and that even if they are failure to comply with the requirements under the Constitution for dealing with grievances and by their conduct have breached articles 4 (h) and 4 (n) of the said Constitution. The Claimants have equally failed to comply with the requirements under the National Industrial Court (Civil Procedure) Rules 2017. He placed reliance on Order 38 Rules 35 of NIC Rules. Furthermore, this suit does disclose any reasonable cause of action against the 1st Defendant and that 2nd Defendant counter –affidavit itself is incompetent and should be dismissed or struck out in favour of the 1st Defendant having been mischievously founded upon gratuitous misrepresentations and fraud. He relied on the case of S.A. Akinola v. Wema BanK Plc [2014] LegalPedia CA 149 E and Chevron Nigeria Limited v. Drilling Nigeria Limited [2007] 7 S.C (Pt. II) 27.  It is the position of Counsel that the law is trite that he who assert must prove. He cited in support of his assertion the case of Section 131 of the Evidence Act 2011 and the case of Mrs. Betty Darego v. A.G. Leventis (Nigeria) Ltd & 3 Ors. LER [2015] (CA)-July 2015 and Ajibi v. Olaewe [2003] 8 NWLR (Pt.822) 233.

 

  1. It is the submission of learned Counsel that the Claimants and the deponent of the 2nd Defendant by their pleadings have not demonstrated capacity to even borrow a hanger let alone buy one, they have truculently asserted but proving nothing. He equally submitted that the objection of the 1st Defendant go to the root of this suit being so fundamental to its continued sustenance and should that Court find in 1st Defendant favour it would have the effect of collapsing this rest of this suit. He placed reliance on the case of UBN v. Sogunro & Ors [2006] 16 NWLR (Pt. 1006) 504 and Ben Electronic Company Nigeria Limited v. ATS & Sons & Ors [2013] LPELR-20870 (CA). Counsel contended that in the circumstances that the 2nd Defendant’s counter affidavit does not establish any cause of action against that 1st Defendant and is also unhelpful to the Claimants’ case which it seems to lean towards. He submits that it is thus of little or no effect in this suit except to note that it is a party in this suit. what is even more noteworthy are those who claim to have its consent firstly to make depositions on its behalf and secondly those who claim to be acting for the 2nd Defendant. He placed reliance on Rules 1, 15 ,26, 27 and 32 of the Rules of Professional Conduct. It is the position of Counsel in sum that this suit is incompetent ab initio and should be struck out base on the argument above reiterating that the jurisdiction of this Court has not been and cannot be activated in the circumstances and so it cannot entertain this suit as constituted. He urge the Court to dismiss this suit with substantial cost in favour of the Defendants to act as deterrence against such spurious, frivolous and harassing claims meant solely to visit injury to the 1st Defendant. 

 

  1. On the 28th day of November 2024 Claimant filed counter affidavit to 1st Defendant Preliminary Objection deposed to by one Stephen Chukwudi Osamade wherein he averred that as regards whether or not the 1st Defendant/Applicant can still continue to parade himself as the National President of the 2nd Defendant/Respondent is still before the Court and that the Claimants/Respondents are members of the 2nd Defendant /Respondents. He equally averred that Ayoade Ibrahim is still the General Secretary of the 2nd Defendant /Respondent and that the 1st Defendant/Applicant in its affidavit has acknowledged that Ayoade published the petition submitted by the Claimants concerning whether the Constitution of the 2nd Defendant permits the 1st Defendant to be both a public servant and president of the 2nd Defendant, yet Claimant was never invited to substantiate the said publication and the Claimant approached this Court. That the said Ayoade published the petition because he received same from the Claimants who are members of the 2nd Defendant in line with the Article 4(h) of the Constitution of the 2nd Defendant. He further averred that the Claimants opened their account, obtained ID Cards, completed their registration process and became members and were able to fund their wallet which only members of the 2nd Defendant are eligible hence exhibit AA1 is not proper. The ID Cards of the Claimants herein are proper and authentic. That Claimants have not acted in a way prejudicial to the 2nd Defendant and that it is in the interest of justice to dismiss the preliminary objection of the Applicant herein.

 

  1. Claimants in support filed a written address wherein Counsel on their behalf distilled a sole issue for the determination of this Court thus;

 

Whether the 1st Defendant/Applicant is entitled to the relief sought in the preliminary objection.

 

  1. Learning Counsel in praying the Court to resolve the above issue in favour of the Claimants urge the Court to resolve the following sub-issues:
    1. Whether 1st Defendant/Applicant has proved that the Claimants are not members of the 2nd Defendant and allegations of forgery against the Claimants in the light of contradictory evidence by the 1st Defendant that petition were received from the Claimants (members) and that the Claimants (members) were allegedly invited to substantiate their petition
    2. Whether the 1st Defendant/Applicant has demonstrated that the Claimants failed to exhaust internal remedies, considering the contradictory evidence that petitions were received from the Claimants and the 1st Defendant’s inability to substantiate claims that invitations were sent to the Claimants regarding the said petition?
    3. Whether there is a reasonable cause of action in this suit?
  2. It is the position of Counsel on sub issue one that the Claimants have shown that only members of the 2nd Defendant are permitted to submit petitions to the 2nd Defendant thus it is puzzling why the 2nd Defendant would publish a petition that allegedly did not emanate from its members. One wonders why the 2nd Defendant allegedly invited the Claimants to substantiate their petition if the petition did not originate from its members. He cited in support of his position Paragraphs 4(a) and 4(h) of the 1st Defendant affidavit in support of the Preliminary Objection and paragraphs 4 (a-e) of the Claimants counter affidavit to the said Preliminary Objection. In respect of forgery Counsel contended that it must be proven beyond reasonable doubt reiterating the contradictory evidence provided by the 1st Defendant/Applicant has cast doubt on the allegations, leaving the claims unsubstantiated and that the Court cannot selectively choose which part of depositions in the 1st Defendant/Applicant affidavit to believes. He placed reliance on the case of Magaji v. A.P.C [2024] 1 NWLR (Pt. 1918) 1 @ P.38; Yusuf v. Obasanjo [2005] 18 NWLR (Pt.956) 96 @ 213 and Ola v. Unilorin [2014] 15 NWLR (Pt. 1431) 453. He urge the Court to dismiss the 1st Defendant/Applicant contentions regarding the Claimants’ membership status and allegation of forgery.

 

  1. Respecting sub issue two Counsel posited that the assertion is flawed andS contradictory as the 1st Defendant has admitted that the Claimants submitted a petition which was received and published by the 2nd Defendant and the 1st Defendant has failed to prove that an invitation was sent to the Claimants regarding the said petition. That the law is trite that he who assert must prove. He relied on the case of N.B.A v Koku [2006] 11 NWLR (Pt. 991) @ P. 451 Paras F-G. He urge the Court to dismiss the contention that internal remedies were not exhausted before institution of this suit.

 

  1. On sub issue three it is the submission of Counsel that the Claimants have also shown that a genuine disputes exists in this matter as seen in the Originating process paragraphs 10-11 of the affidavit in support. Counsel contended that the 1st Defendant’s position exhibits inconsistency in that on one hand he argued there is no cause of action while simultaneously suggesting that a petition with respect to the issues in this suit has been received by the 2nd Defendant which approach borders on approbation and reprobation. He cited in support of his assertion the case of Are v. Ipaye [1986]3 NWLR (Pt. 29) 416. Continuing, he stated that by joining issues on the core subject matter the 1st Defendant have implicitly acknowledged existence of dispute between parties. He relied on the case of Prince Oduneye v. Prince Efunuga [1990]12 SCNJ 1,8. In conclusion Counsel posited that the Claimants have not only demonstrated that the 2nd Claimant has that locus standi to institute this action but have also successfully established the existence of the real dispute between the parties. He urge that Court to dismiss the objections raised by the 1st Defendant and grant the reliefs sought by the Claimants as just demands that the Court protects the legal rights and interests of the Claimants.

 

  1. Equally filed on same date by the Claimants is 8 paragraphs further affidavit in opposition to the 1st Defendant counter affidavit to their Originating Summons deposed to by one Stephen Chukwudi Osamade wherein he averred that Claimants are members of the 2nd Defendant and that the 2nd Defendant knew about the employment details of the 1st Defendant when the Claimant submitted the petition to the 2nd Defendant. He equally averred that Mr. Ibrahim Ayoade is still the secretary of the 2nd Defendant. That it is in the interest of justice to grant this Originating Summons.

 

  1. Filed along the further affidavit is a written address wherein Counsel formulated a sole issue for the Court’s determination viz;

 

Whether this suit is competent?

 

  1. Learning Counsel in praying the Court to resolve the above issue in favour of the Claimants urge the Court to resolve the following sub-issues:
    1. Whether 1st Defendant/Applicant has proved that the Claimants are not members of the 2nd Defendant and allegations of forgery against the Claimants in the light of contradictory evidence by the 1st Defendant that petition were received from the Claimants (members) and that the Claimants (members) were allegedly invited to substantiate their petition
    2. Whether the 1st Defendant/Applicant has demonstrated that the Claimants failed to exhaust internal remedies, considering the contradictory evidence that petitions were received from the Claimants and the 1st Defendant’s inability to substantiate claims that invitations were sent to the Claimants regarding the said petition?
    3. Whether there is a reasonable cause of action in this suit?

 

  1. It is the position of Counsel on sub issue one that the Claimants have shown that only members of the 2nd Defendant are permitted to submit petitions to the 2nd Defendant thus it is puzzling why the 2nd Defendant would publish a petition that allegedly did not emanate from its members. One wonders why the 2nd Defendant allegedly invited the Claimants to substantiate their petition if the petition did not originate from its members. He cited in support of his position Paragraphs 4(a) and 4(h) of the 1st Defendant affidavit in support of the Preliminary Objection and paragraphs 4 (a-e) of the Claimants counter affidavit to the said Preliminary Objection. In respect of forgery Counsel contended that it must be proven beyond reasonable doubt reiterating the contradictory evidence provided by the 1st Defendant/Applicant has cast doubt on the allegations, leaving the claims unsubstantiated and that the Court cannot selectively choose which part of depositions in the 1st Defendant/Applicant affidavit to believes. He placed reliance on the case of Magaji v. A.P.C [2024] 1 NWLR (Pt. 1918) 1 @ P.38; Yusuf v. Obasanjo [2005] 18 NWLR (Pt.956) 96 @ 213 and Ola v. Unilorin [2014] 15 NWLR (Pt. 1431) 453. He urge the Court to dismiss the 1st Defendant/Applicant contentions regarding the Claimants’ membership status and allegation of forgery.

 

  1. Respecting sub issue two Counsel posited that the assertion is flawed and contradictory as the 1st Defendant has admitted that the Claimants submitted a petition which was received and published by the 2nd Defendant and the 1st Defendant has failed to prove that an invitation was sent to the Claimants regarding the said petition. That the law is trite that he who assert must prove. He relied on the case of N.B.A v Koku [2006] 11 NWLR (Pt. 991) @ P. 451 Paras F-G. He urge the Court to dismiss the contention that internal remedies were not exhausted before institution of this suit.

 

  1. On sub issue three it is the submission of Counsel that the Claimants have also shown that a genuine disputes exists in this matter as seen in the Originating process paragraphs 10-11 of the affidavit in support. Counsel contended that the 1st Defendant’s position exhibits inconsistency in that on one hand he argued there is no cause of action while simultaneously suggesting that a petition with respect to the issues in this suit has been received by the 2nd Defendant which approach borders on approbation and reprobation. He cited in support of his assertion the case of Are v. Ipaye [1986]3 NWLR (Pt. 29) 416. Continuing, he stated that by joining issues on the core subject matter the 1st Defendant have implicitly acknowledged existence of dispute between parties. He relied on the case of Prince Oduneye v. Prince Efunuga [1990]12 SCNJ 1,8. In conclusion Counsel posited that the Claimants have not only demonstrated that the 2nd Claimant has that locus standi to institute this action but have also successfully established the existence of the real dispute between the parties. He urge that Court to discountenance the submissions of the 1st Defendant and uphold the claims of the Claimants and grant the reliefs sought in this suit.

 

  1. On the 28th day of November 2024 the 2nd Defendant filed its counter affidavit to the 1st Defendant/Applicant Notice of Preliminary Objection deposed to by one comrade Ayoade Muslim Ibrahim wherein he averred that the Claimants/respondents are members of the 2nd Defendant and that he is still the General Secretary of the 2nd Defendant/Respondent and that the 1st Defendant/Applicant in their affidavit acknowledged that I published the petition submitted by the Claimants concerning whether the Constitution of the 2nd Defendant permits the 1st Defendant to be both a public servant and president of the 2nd Defendant. it is equally his averment that the Claimants have not acted in a way prejudicial to the 2nd Defendant and that it is in the interest of justice to dismiss the Preliminary Objection of the Applicant herein. 

 

  1. Also the 2nd Defendant in support filed a written address and formulated a lone issue for the Court’s determination viz;

 

Whether the 1st Defendant/Applicant is entitled to the relief sought in the preliminary objection?

 

  1. Learned Counsel submitted that the Claimants have demonstrated their membership status thus he urge the Court to dismiss the contention of the 1st Defendant/Applicant. He equally stated that the evidence provided by the 1st Defendant/Applicant is contradictory and has cast doubt on the allegations leaving the claims unsubstantiated. He placed reliance on the case of Magaji v. A.P.C [2024] 1 NWLR (Pt. 1918)1 @ P.38 Paras f-h; Yusuf v. Obasanjo [2005] 18 NWLR (Pt. 956) 96 @ P. 213 Paras D-F and Ola v. Unilorin [2014] 15 NWLR (Pt.1431) 453. He urge the Court to dismiss the 1st Defendant/Applicant contention regarding the Claimant’s membership status and allegation of forgery. Regarding the allegation of not exhausting internal remedies, it is the position of Counsel that the assertion is flawed and contradictory as the 1st Defendant having received and publish petition and failure that an invitation was sent to the Claimants regarding the said petition is fatal to its case. The law is trite that he who assert must prove. He placed reliance on the case of N.B.A v. Koku [2006] 11 NWLR (Pt. 991) @ P. 451 Paras F-G. With respect to reasonable cause of action it is the position of Counsel that the Claimants have also shown that a genuine dispute exist in this matter and that by joining issues on the core subject matter, the 1st Defendant have implicitly acknowledged the existence of disputes between parties.  He cited in support of his assertion the case of Prince Oduneye v. Prince Efunuga [1990] 12 SCNJ 1,8 and urge the Court to dismiss the objection raised by the 1st Defendant and grant the reliefs sought by the Claimants.

 

  1. On the 28th day of November 2nd Defendant  filed an affidavit in reply to the 1st Defendant’s counter affidavit to 2nd Defendant’s counter deposed to by one comrade Ayoade Muslim Ibrahim wherein he averred that the 1st Defendant vide paragraph 7c of his counter affidavit acknowledged that a petition was brought against him and that the said petition relates to the complaint in this suit and that despite publication of the petition by the 2nd Defendant Claimants were never invited to substantiate it. As a result, Claimants were compelled to seek redress before this Court. He also averred that his ID Card is the valid one issued to him by the 2nd Defendant and that he is still the Secretary of the 2nd Defendant. That exhibit C and D were written after this suit had already commenced and that in his counter filed 23rd day of April 2024 are some typographical errors noting that the 1st Defendant and Claimants are not in confusion with respect to the typographical error as they have join issues on same.  it is his averment that it is in the interest of justice to grant this Originating Summons.

 

  1. Accompanying the reply is a written address wherein Counsel formulated a sole issue for the determination of the Court viz;

 

Whether a valid cause of action has been disclosed against the 1st Defendant?

 

  1. Counsel posited that by joining issues on core subject matter the 1st Defendant have acknowledged the existence of dispute between parties and that the 1st Defendant did not dispute being employed as a public servant but rather contended that his employment is on part-time basis and argued that this part-time status does not classify him as public servant. It is the submission of Counsel that in whatever capacity one is employed as a person employed by Federal Government Agency such a person is a Public Servant. He placed reliance on the case of Prince Oduneye v. Prince Efunuga [1990] 12 SCNJ 1,8 and Section 318 of the Constitution of the Federal Republic of Nigeria 1999 as amended. that it has been established that the 1st Defendant is a Public Officer. He cited in support Articles 4 and 5 and Articles 30(5) of the Constitution of the 2nd Defendant. In conclusion, he reiterated that there is an existence of a real dispute between parties. Counsel went on to state that the 1st Defendant has failed to prove the allegation of forgery against Mr. Ayoade in that a perusal of the Counter affidavit of the 1st Defendant, there is nowhere the 1st Defendant pleaded particulars of fraud and that forgery must be proven beyond reasonable doubt. He urge the Court to discountenance the submission and dismiss same. 
  2. As regards the authenticity and validity of Exhibit B, Counsel contended that assuming but conceding that Exhibit B is genuine, he requests the Court to examine whether its contents conclusively demonstrate that Mr. Ibrahim has been removed as the General Secretary. He posited that the interpretation of words and phrases within the said Exhibit B must be guided by their plain and ordinary meaning. He relied on the case of Arije v. Arije [2011] 13 NWLR (Pt.1264) 265.  Again, he posited that assuming but conceding that Exhibit B is genuine the 1st Defendant has not placed any recommendation of NEC before the Court that the 2nd Defendant have been removed. 

 

  1. Furthermore, it is the position of Counsel that the Court ought not to rely on Exhibit C and D and that the Court to discountenance same because it lacks credibility as it was issued after initiation of the current proceedings and that that the allegation of perjury in Exhibit C cannot be proved by affidavit evidence. He placed reliance on the case of Anagbado v. Faruk [2019] 1 NWLR (Pt.1653) 292 and Isa v. A.P.C [2023] 11 NWLR (Pt.1896) 479. He urge the Court to discountenance Exhibit C and D. It is equally the position on legal representation that the 2nd Defendant has the right to any legal practitioner of his choice and the 1st Defendant have no right to complain on same thus the contention of the 1st Defendant with respect of legal representation of the 2nd Defendant ought to be discountenanced. He relied on the case of Ezenwo v. Festus (No.1) [2020] 16 NWLR (Pt. 1750) 324 @ P 338 Paras F-G.

 

  1. The 2nd Defendant on the 8th Day of April filed a thirteen paragraphs counter affidavit in opposition to Claimants’ Originating Summons deposed to by one Comrade Emeka Emerole the Chairman of South East Regional of AUATON wherein he averred that the Claimants were not registered members as at the date of this suit but were interested parties as they had registered wallets on the Union’s database and website so could not have been issued with the Union’s authentic and original membership identity cards then. He equally averred that the Union is not only guided by its Constitution but by all relevant extant laws and regulations affecting Trade Unions in Nigeria and that the Union has a various vetting process in place to ensure that only self-employed individual is admitted as members. He went on to state that the Union has seen Exhibit 3 of the Claimants’ Originating Summons and having reviewed same does not see how it disqualifies the current National President and that the Claimants’ petition has been dealt with. That the internal complaint procedures of the 2nd Defendant have not been exhausted by the Claimants hence instituting this suit is premature and in breach of Article 4(h) and 4(n) of the Constitution of the Union. Thus it is in the interest of justice to dismiss this suit.

 

  1. Filed alongside the Counter is a written address wherein Counsel on behalf of the 2nd Defendant raised two issues for the Court’s determination thus;

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  1. Whether a person in part time employment as a researcher of the National Institute of Police Studies (NIPS) is a Public Officer? And
  2. Whether a reasonable cause of action has been disclosed by the Claimants?

 

  1. Counsel started by answering in the negative. He posited that the Claimants have not demonstrated that they are members of the AUATION in accordance with Article 4 of the Union’s Constitution hence lacks capacity or locus as they have shown cogent proof of their membership at the time of institution of this suit or at all and therefore cannot competently institute this suit. He equally contended that this suit discloses no reasonable cause of action whatsoever against the 2nd Defendant and should be dismissed or struck out in its favour with costs, reiterating that mere allegations alone without cogent reasons and demonstrable proofs is not enough to establish a reasonable cause of action. Mores so, it is trite position of law that he who assert must prove. He placed reliance on the case of S. A Vv. Wema Bank Plc [2014] Legalpedia CA 149E; Chevron Nigeria Limited v. Lonestar Drilling Nigeria Limited [2007] 7 S.C (Pt.II) 27; Mrs. Betty Darego v. A.G Leventis (Nigeria) Ltd & 3 Ors [2015] CA/L/481/2011 (CA)-July 2015 and Ajibi v. Olaewe [2003] 8 NWLR (Pt.822) 233. 

 

  1. In furtherance to the above it is the position of Counsel that the questions presented for determination are not in dispute as the 2nd Defendant agrees with the Claimants that they should be answered in the affirmative however on the issue in question C, the 2nd Defendant notes that the Claimants did not place any evidence in front of this Court to entertain this question hence the Court cannot manufacture evidence of a question. He contended that being a Public Officer goes to no moment.  He relied on Article 4 (a) and (b) of the AUATON Constitution. On the whole Counsel submitted that this suit is incompetent ab ignition and should be dismissed or struck out with cost against the Claimants for bringing a premature, frivolous suit.

 

  1. Claimants’ on the 9th day of April 2025 filed a seven paragraphs further counter affidavit to 2nd Defendant Counter affidavit to their Originating Summons deposed to by one Emmanuel Ibekwe Onwuezobe wherein he averred that Comrade Emeka Emerole is no more the official of 2nd Defendant and that he does not have the consent of the 2nd Defendant to depose to this affidavit. He equally averred that the 2nd Defendant has instituted a suit against the said Comrade Emeka Emerole with him as the 5th Defendant in suit No. NICN/ABJ/104/2024 and that the suit is seeking amongst other reliefs an injunction restraining the said Emeka from parading himself as member and officer of the 2nd Defendant. It is also his averment that by Article 16 (iii) of the Constitution of the 2nd Defendant the President of the 2nd Defendant shall be a full time officer and that Exhibit 3 of the Claimants’ Originating Summons is incompatible with the full time status of the 1st Defendant. That it is in the interest of just to grant this Originating Summons.

 

  1. In support of the counter affidavit is a written address wherein counsel formulated two issues viz;
    1. Whether a person in part time employment as a researcher of the National Institute of Police Studies (NIPS) is a Public Officer
    2. Whether a reasonable cause of action has been disclosed against the 1st Defendant?

 

  1. Taking the two issues together Counsel pray the Court to resolve in favour of the Claimant in the following sub-issues
    1. Whether 2nd Defendant has proved that the Claimants are not members of the 2nd Defendant in the light of contradictory evidence by the 2nd Defendant that petition were received from the Claimants (members) and that the Claimants (members) were allegedly invited to substantiate their petition?
    2. Whether the 2nd Defendant has demonstrated that the Claimants failed to exhaust internal remedies, considering the contradictory evidence that petitions were received from Claimants and the 2nd Defendant’s inability to substantiate claims that invitations were sent to the Claimants regarding the said petition?

 

  1. Regarding the sub-issue one Counsel contended that the 2nd Defendant’s contentions on Claimants membership status cannot be accepted particularly in the light of the contradictory evidence provided by the 2nd Defendant wherein the 2nd Defendant admits that the Claimants’ petition was received by the 2nd Defendant more so Claimants have shown that only members of the 2nd Defendant are permitted to submit petitions to the 2nd Defendant. Again the 1st Defendant has not proved the allegations that membership cards of the Claimants are not authentic. He urge to disregard the entirety of the 2nd Defendant’s counter affidavit as it cannot selectively choose which part of the depositions to believe. He placed reliance on the case of Yusuf v. Obasanjo [2005] 18 NWLR (Pt. 956) 96 @ P.213 Paras D-F and Ola v. Unilorin [2014] 15 NWLR (Pt.1431) 453. Continuing, Counsel stated that the 2nd Defendant has failed to prove that an invitation was sent to the Claimants regarding the said petition, the law is trite that he who assert must. He cited in support of his assertion the case of N.B.A v. Koku [2006] 12 NWLR (Pt. 728) 524 @ P.574 Paras E-F. That there was no service of the processes leading to the alleged sitting was served on the Claimants and thus right of fair has been breached. Consequently, the Claimants rightly approached this Court after the 2nd Defendant failed to issue an invitation to the Claimants regarding the petitions. He urged the Court to dismiss the 2nd Defendant’s contention on non-exhaustion of internal remedies before institution of this suit. Counsel Submitted also that the 1st Defendant employed by the National Institute of Police Studies a Federal Government agency is unequivocally a public officer under Nigerian law irrespective of his part time employment status. This classification combined with the contractual obligations enshrined in the Constitution of the 2nd Defendant renders him ineligible to serve as President a full time position. He cited in support Article 16 (iii) of the Constitution. It is his position that the relationship between trade union and its members is contractual, governed by the Union’s Constitution. He placed reliance on the case of Elufioye v. Halilu [1993] 6 NWLR (Pt.301) 570 and Article 30 (5) and 16 (iii) of the Constitution of AUATON. In Conclusion the 1st Defendant as a Public Officer under Section 318 of 1999 Constitution as amended is barred from membership and office in the 2nd Defendant. He relied on Article 4 and 30 (5) and 16 (iii) and posited the 1st Defendant continued tenure as President of 2nd Defendant violates the 2nd Defendant’s Constitution.

COURT’S DECISION

  1. I have considered the Originating Summons filed by the Claimant and the reaction to it by the Defendant and the reply on point of law to the Defendant’s counter affidavit. I have also carefully considered the Notice of Preliminary Objection filed by the Defendant challenging the competence of this suit pending before this court thereby usurping the jurisdiction of this Court. The counter affidavit of the claimant with the written address was carefully studied. Also considered is the reply on point of law filed by the Defendant to the Notice of Preliminary Objection. I will like to point out that the Notice of Preliminary Objection substantially forms the gravamen or substance of the case of the Defendant in his defence to the Originating Summons. This is clearly seen at page 9 paragraph 2.01 of the 1st Defendant Final Written Address and page 7 paragraph 2.00 of 2nd defendant’s Final Written Address in support of their counter affidavit to the Originating Summons. In the light of the foregoing, I will adopt the questions raised on the Originating Summons as the issues to be considered in determining this suit.

 

  1. Let me start by saying that the 2nd defendant is a registered trade union going by the annexures and depositions of parties in this suit. It follows therefore that 2nd defendant is a legal person and the birth and death of legal persons in this context are determined not by nature but by the law. The 2nd defendant came into existence at the will of the law, and it endures during its pleasure. The 2nd defendant’s extinction is called dissolution as provided by the law that birth it. See Nigerian Nurses Association & Anor v. AG Federation & Ors (1981) LPELR-2027(SC).

 

  1. In this Court Order 3 Rule 3 of the Rules of this court provides for Originating Summons to be used in commencing matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the court has jurisdiction by virtue of the provisions of section 254C (1) of the 1999 Constitution as amended. Order 3 Rule 2 (a) specifies that Originating Summons is only to be used where the claim relates to interpretation by the Court. Thus, an Originating Summons in this Court is used in commencing actions involving interpretation of written instruments without any likelihood of disputed facts. It is therefore the appropriate mode of commencement of interpretation of collective agreements and trade union constitutions, interpretation of international labour standards and labour conventions applicable to labour and employment issues, matters relating to or connected with the interpretation and application of the provisions of Chapter IV of the 1999 Constitution as it relates to any employment, labour, industrial relations, trade unionism, and other matters which this Court has jurisdiction to entertain.

 

  1. I am mindful that in the use of this method of commencing an action, facts do not have a pride of place but only play a negligible role. The cynosure is the applicable law and its construction by the court. Thus, where an action predominantly involves interpretation of written instruments, an OS would be inappropriate where there is any likelihood of substantial dispute of facts arising from the claim in the originating process. This is provided for in Order 3 Rule 17 (1) where it provides that: “… a suit which raises substantial dispute of facts or where substantial dispute of facts is likely to be involved shall not be commenced by an OS, but by complaint as provided in Rules 8 and 9 of this Order.” 

 

  1. In arguing his preliminary objection, Counsel to 1st Defendant/Applicant argued that the Claimants are not properly before this Court as they lack the locus standi to institute this suit. The argument of 1st defendant/Applicant is that Claimant fail to exhaust internal mechanism available for members as provided under Article 4 (h) of the 2nd defendant’s constitution before approaching this court. The 1st Defendant/Applicant filed a Notice of Preliminary Objection urging this Court to strike out or dismiss this Originating Summons for being incompetent and in breach of the Rules of this Court thereby usurping the jurisdiction of this court under Article 6 [B] [ii] of the Union constitution. Counsel avers that claimant fail to comply with the requirements of Order 38 Rule 35 of the rules of this Court. In his response Counsel to Claimant argued that it is the same claimants that wrote a petition and was received considered as members of the 2nd defendant and were invited to substantiate the petition and referred to paragraphs 4 (a) and 4 (h) of 1st defendant/Applicant affidavit in support of the Notice of Preliminary Objection and paragraph 4 (a-e) of the Claimants’ counter affidavit to the Notice of Preliminary Objection.

 

  1. I have taken a look at the provisions of Article 4 (h) which gives a member the right to have his grievances processed by the Union and Article 6 [B] [ii] of the Constitution relied upon by the 1st Defendant which gives the National Delegate Conference power to receive, consider and take decision on appeals from any appointed officer. And in the interpretation of documents, we are admonished that the words in a document must first be given their simple and ordinary meaning and under no circumstances may new or additional words be imported into the text unless the document would be, by the absence of that which is imported, impossible to understand. The presumption is that the parties have intended what they have in fact said so that their words must be construed as they stand. See Incorporated Trustees of United Visionary Youth of Nigeria v. Sukubo [2021] LPELR-52916 (CA), Solicitor General, Western Nigeria v. Adebonojo (1971) 1 ALL NLR 1978, Gana v. SDP & Ors [2019] LPELR-47153 (SC); Omoijahe v. Umoru & Ors [1999] LPELR-2645(SC). I therefore find that 2nd Defendant has ample power to receive, consider and take decision on appeals from any appointed officer which is an avenue of resolving disputes within the 2nd Defendant. On the submission on Order 38 Rule 35 of the rules of this court, the provision provides thus:

 

  1. Where an action relating to or connected with contract of employment or contract of services is pending before the Court and in the contract of employment or contract of services the mode of settlement of dispute or an internal dispute resolution mechanism is stated, the Court may order the parties in the matter before it to exploit the stated mode of settlement or the internal dispute resolution mechanism for the settlement of the dispute before proceeding with the matter.

When any party may apply for participation by the other parties in the use of stated mode of or internal dispute resolution.

  1. The 2nd Defendant going by its preamble is a product of an agreement among its members coming together as a united body dedicated to the promotion of “labour and industrial relations activities that would improve the welfare of its members.” They solemnly resolved and adopted this document known as the constitution that binds all its members. Nowhere in this Constitution is it provided that a member “shall” exhaust all internal mechanisms of dispute resolution before approaching the Court. The import of Article 4 is to provide an avenue to ventilate grievances that may arise. The constitution did not make that provision as a condition precedent to approaching the Court. In like manner the relevance of Order 38 Rule 35 cannot be brought to bear in this circumstance.  I find the submission of learned Counsel to the 1st Defendant in this regard as not only unsustainable but misleading and is hereby discountenanced.

 

  1. 1st Defendant’s Counsel also raised the issue of Claimants not being members of the union in line with Article 4 of the Constitution and thereby having no capacity to institute this action. Counsel to 1st Defendant argued that no reasonable cause of action against the defendants was made out as it is not within the sphere of the 2nd Defendant’s Constitution. Counsel to 1st Defendant repeated the point that he is a self-employed App-Based Transporter rather than being in full employment. In response to this, Counsel to Claimants argued that paragraph 10-11 of its affidavit in support of Originating Summons shows that Claimants have established a reasonable cause of action to warrant initiating this suit. I have noted the depositions of the Claimants at paragraph 10 -11 of the affidavit in support of the Originating Summons and I am convinced that the Claimant has establish a reasonable cause of action to warrant coming to this court. On the submission on membership, Article 4 (a) provides that “membership of the union shall be open to self-employed App-Based Transporters in the Federal Republic of Nigeria.” The Claimants submitted that they are members of the second Defendant and that is why their petition to 2nd Defendant was received and the 2nd Defendant also invited them to defend same. I have tried to read the provision of Article 4 severally to understand it and further read paragraph 4 (a) of the affidavit in support of the Notice of Preliminary Objection and paragraph 3 of the counter affidavit to the Notice of Preliminary Objection and I have no doubt that the Claimants are members of the 2nd Defendant and therefore competent to initiate this action.

 

  1. For the reasons giving I have no doubt that the Notice of Preliminary Objection fail woefully and is hereby accordingly dismissed. 

 

  1. The Claimants in commencing this suit raised 4 questions for the determination of this suit as follows:

[

  1. WHETHER on the interpretation of Article 2 of the constitution of the 2nd Defendant the constitution of the said union is binding on all members of the 2nd Defendants and the union (2nd Defendant)?

ii.   WHETHER on the interpretation of Article 4 of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria membership of the union is open to persons who are not self – employed App-Based Transporters in the Federal Republic of Nigeria?

iii.  WHETHER on the interpretation of Article 30 (5) of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria a public officer can stand for nomination and be elected as an officer of the Amalgamated Union of App-Based Transporters of Nigeria?

  1. WHETHER on the interpretation of section 318 of the 1999 Constitution as amended a person in the employment of the National Institute of Police Studies is a public officer?
  1. In attempting to answer the questions, the claimant attempted to address this court on all the question seriatim. However, on a review of the FWA of the 1st Defendant I discovered this submission at page 19 of 1st Defendant’s Final Written Address where he submitted in these words: “My Lord, the questions presented for determination are not in dispute as the 1st Defendant agrees with the claimants that they should be answered in the affirmative. However, on the issue of Question C the 1st defendant notes that the claimants did not place any evidence in front of this court to entertain this question.”

In a similar fashion, the 2nd defendant at page 7 of its FWA submitted that “… the 2nd Defendant does not dispute issues [i], [ii], and [iii] of the claimant’s issues for determination except for [iv] to the extent that the 2nd defendant frames as its issue…”

  1. From the foregoing it appears from the narration above, that 1st defendant is not contesting questions 1, 2, and 4 while 2nd defendant is not contesting questions 1, 2, and 3. It follows from this development above that the question remaining to be answered for the 1st Defendant is:

WHETHER on the interpretation of Article 30 (5) of the constitution of the Amalgamated Union of App-Based Transporters of Nigeria a public officer can stand for nomination and be elected as an officer of the Amalgamated Union of App-Based Transporters of Nigeria?

  1. From the question posed above, Counsel to Claimants in discussing this decided to discuss it in the light of reliefs 2, 3, 4, 5 and 6. Counsel submitted that the 1st Defendant is in the public service and cannot be a member and or an officer of the 2nd Defendant. Counsel argued that the National Institute of Police Studies where the 1st Defendant works is a government organization thereby making 1st Defendant becoming a public officer. And it follows that by Article 4 and 5 of 2nd Defendant’s constitution the 1st Defendant cannot be a member and or officer of the 2nd Defendant, and he cannot parade himself as an officer and or member of the 2nd Defendant. In its response, 1st and 2nd Defendants argued that by a combined reading of Article 4 (a) and (b) of the 2nd defendant’s Constitution, it is not as to what else a potential member may be doing as long as he can demonstrate that he is also a self-employed App-Based transporter.

 

  1. Despite the mixture in terms of numbering and the incoherent description of the questions and the sections of the 2nd defendant’s constitution, I have taking my time to understand the issues at stake of which the claimant seeks to urge this court to answer. Now claimant only need some interpretation in respect of Article 30 (5) of the 2nd defendant’s constitution as it relates to the depositions in paragraph 4, 7, 8 and 9 of 1st claimant’s affidavit in support of the OS. The provisions of Article 30 (5) of the 2nd defendant’s constitution read thus:

[[[[[

  1. No person shall hold or retain elected or appointed office of the trade union or a public officer or who has been convicted of any crime while elected in office involving moral turpitude, dishonesty and other malpractices offensive to trade union morality or interest, or any other misdemeanors of felonies

 

  1. The Claimants in trying to prove this claim that 1st Defendant is not a self-employed App-Based transporter he did not stop at the provision of Article 30 (5) but tendered Exhibit 3, a letter from the National Institute of Police Studies entitled “To whom it may concern” where 1st defendant is said to have facilitated in a workshop on restorative justice in 2020. In paragraph 4 (e) of the counter affidavit to the Originating Summons, 1st Defendant submitted that he is serving on part-time does not conflict with his position as president of the 2nd Defendant.

 

  1. The question which Counsel to Claimants seems to give so much attention to is the conclusion to be drawn that 1st Defendant is a public officer in light of the bare facts avaibale to this Court. The law is without controversy that a public officer is any person who is directly employed in government, public service, civil service or any public agency. See Atanda v. Kwasu [2020] LPELR-52509(CA); Momoh v. Okewale & Anor [1977] LPELR-1908 (SC); Okomu Oil Palm Co. v. Iserhienrhien [2001] 6 NWLR (Pt. 710) 660; Eze v. Okechukwu [2002] 18 NWLR Pt. 799 page 348. The Statutory meaning of the term "Public Officer" has been set by the apex Court in the following words: "The term ''Public Officer" is used synonymously with the term "Public Department" and is defined as follows- "'Public Officer' or 'Public Department' extends to and includes every officer or department invested with or performing duties of a public nature". See: Ibrahim v. Judicial Service Commission (1998) 14 NWLR Pt. 584 page 1. 

 

  1. The question is whether the Claimants have been able to prove that 1st Defendant is a Public Officer in the light of Article 30 (5) of the constitution. The law is well settled that for employment contract to be proved either by the employee or a third party it needs to be place before the court the terms and conditions of the employment that provides for the rights and obligations of the employee. See Okoebor v. Police Council [2003] 12 NWLR (Pt. 834) 444; Okumu Oil Palm Co. v. Iserhienrhien [2001] 6 NWLR (Pt. 710) 660; Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589. In the case of Mainstreet Bank Registrars Ltd V. Ukandu [2017] LPELR-43646(CA) the Court of Appeal had cause to observe that: "Contract of employment is founded on the twin pillars of services and wages, it is on these that a contract of employment rest. A contract of employment is either grounded in statute or common law in which case the employment letter stipulates the terms of the contract.”

Also the Supreme Court in the case of Shena Security Company Ltd v. Afropak (Nig) Ltd & Ors [2008] LPELR- 3052 (SC) described contract of employment in the following words: "A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and the other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap 198) LFN, 1990."

  1. I must state here that none of the elements to establish an employment has been place before this Court. Exhibit 3 referred to by Counsel to the Claimants is not addressed to anybody and does not fall into any of the categories of the documents required to establish an employment. I succinctly admit that going by the provisions of Article 30(5) a public officer cannot hold any office in the 2nd Defendant. However, from the evidence presented before this Court, I am not persuaded that the 1st defendant has an employment relationship with the said National Institute of Police Studies. To answer question 3 and 4 therefore I find that a public officer cannot stand for nomination and be elected as an officer of the 2nd Defendant. And by the interpretation of section 318 of the 1999 constitution as amended a person in the employment of the National Institute of Police Studies simpliciter is not a Public Officer but can be a Public Officer if it can be proved that he is an employee of the National Institute of Police Studies. For the avoidance of doubt and in the context of the evidence before this Court, the 1st Defendant is not a public officer under section 318 of the 1999 Constitution as amended. This I so hold.

 

  1. Having answered the questions posed it flows that reliefs (i) succeed. However, reliefs (ii), (iii), (iv), (v), and (vi) fails.

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  1. On the whole for the reasons giving and for the avoidance of doubt a declaration is hereby granted that Article 2 of the Constitution of the 2nd Defendant is binding on all members of the union and the members and the 2nd Defendant are bound to comply with Article 4 and 5 of the 2nd Defendant Constitution.

 

  1. Judgment is hereby entered. A cost of ?300, 000.00 is hereby awarded.

   

 

                                                                                         …………………………….

                                                                                         Hon. Justice E. D. Subilim

                                                                                                        JUDGE