Trade Union Congress
-
ASCSN crisis-The Industrial Court Judgment
- By solomon2day
- On 29/11/2024
- In Special Report
The National Industrial Court delivered judgment on the leadership crisis in the Association of Senior Civil Servants of Nigeria (ASCSN). However, members of the association are curious to know the details below:
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE 0.0. OYEWUMI
DATE: 9TH JULY, 2024
BETWEEN
COMRADE INNOCENT BOLA-AUDU
SUIT NO: NICN/ABJ/341/2023
AND
1. ASSOCIATION OF SENIOR CIVIL SERVANT OF
NIGERIA (ASCSN)
2. MR. ALADE BASHIR LAWAL
3. MR. TONY ETIM OKON
CLAIMANT
DEFENDANTS
REPRESENTATIONS
Babatunde Adewusi Esq with Oyindamola Bamidele Esq and Precious Patient Eze-ewere Esq for Claimant
Johnson O. Esezoobo Esq with M. M. Ayinla Esq for Defendants
JUDGMENT
1. This action was commenced by a General Form of Complaint filed on the 13" day of July, 2022, wherein Claimant prays the Court for the following
viz:
1. A DECLARATION that the Claimant is the lawful substantive
National President of the 1' Defendant.
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2. AN ORDER of the Honourable Court mandating the 1" Defendant
and all its organs to unconditional reinstate the Claimant back to his elected position as National President of the 15 Defendant with immediate effect.
3. AN ORDER of the Honourable Court mandating the 1" Defendant, its agents and privies to ensure that the Claimant serve out his elected tenure of four years without any interruption.
4. A DECLARATION that the emergency meeting of the CWC requisitioned by the 2nd Defendant and held in Lagos on the 9th of March 2021 which purportedly reached a decision that the Claimant should step aside and appointed the 3" Defendant as the Acting President to replace the Claimant is irregular, unlawful illegal void ultra-vires its powers and in contravention of the Constitution of the 1" Defendant.
5. A DECLARATION that the purported resolution passed by the CWC for the appointment or selection of the 3rd Defendant, sic (as acting President) is irregular, unlawful illegal void and ultra-vires its powers and in contravention of the Constitution of the 1s Defendant.
6. A DECLARATION that the Claimant did not violate the Constitution of the 1 Defendant nor have been found guilty of any criminal charge by NAPTIP to warrant the purported decision taken by the 1* Defendant's CWC.
7. A DECLARATION that the incidence deliberations and decision of the emergency NEC meeting held on the 16th of March 2021 which sought to affirm the decision of the CWC of the 9th of March 2021 asking the Claimant to step aside from his office as National President of the Defendant is irregular, unlawful, illegal unlawful void ultra-vires its powers in contravention of the Constitution of the 1a Defendant and in contravention of the order of the Honourable for parties to maintain status quo.
8. A DECLARATION that the incidence deliberations and decisions of the emergency NEC meeting held on Monday the 16th of August 2021 and Tuesday 17th August 2021 which sought to expel the Claimant from membership of the 1 Defendant is irregular, unlawful, illegal void and ultra-vires its powers in contravention of
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the Constitution of the 1st Defendant of the Order of the Honourable Court for parties to maintain status quo.
9. A DECLARATION that the 3rd Defendant has retired from the
Civil Service and no longer a member of the 1" Defendant. 10. A DECLARATION that by the continued stay in office of the 3rd defendant is unlawful, contrary to public policy, equity and the Constitution of the 1" Defendant.
11.AN ORDER of the Honourable Court Directing the 3rd Defendant to vacate the office of the National President of the 1s Defendant with immediate effect.
12.An injunction restraining the Defendants, agents, privies and representatives from interfering with the lawful business of the Claimant as the National President of the 1" Defendant.
13.The sum of N3, 000, 000.00 (Three Million Naira) only being the cost incurred by the Claimant for bringing of thus suit against the Defendants.
2. The case of the Claimant is that he was arrested and detained by National Agency for Prohibition of Trafficking (NAPTIP) and while in detention the 2nd defendant requisitioned an emergency meeting of the 1 defendant's Central Working Committee(CWC); where it was resolved that he step aside as the President pending the resolution of all criminal related issues brought against him by NAPTIP and appointed the 3 defendant as the Acting President and that the resolution is irregular, unlawful illegal void and ultra- vires its powers and in contravention of the Constitution of the 1" defendant. According to him he approached the Court to enforce his fundamental human rights and the Court made an order that parties should maintain status quo. That in flagrant disregard and disobedience to the order of Court, the National Executive Council of the 1" defendant eventually removed him as President illegally. He was subsequently expelled from membership of the 1 defendant illegally. Hence this suit.
3. The defendants in response filed their joint statement of defence which was amended wherein they admitted that the Claimant was National President of the defendant but was suspended and subsequently expelled from the Association. That the 2 defendant duly retired from service having attained retirement age but was thereafter appointed on contract for one year three
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months by NEC of the 1st defendant in accordance with the Conditions of service. They further averred that after the CWC of the 1st defendant examined the issue of arrest/detention of the Claimant, he was asked to step aside as President for the 3"" defendant to act as President. They also averred that the defendants did not act unlawfully in every step taken to suspend the Claimant and subsequently expelled him and that same being an internal affair, the Court has no jurisdiction to look into it. They maintained that this action ought to be dismissed.
4. Claimant opened his case by calling one Solomon Onaghinon who testified as CW1, he adopted his written statement on Oath dated 6/2/23. He was cross-examined by learned defence counsel and a document which was admitted and marked as Exhibit S was tendered through him under cross examination. One Lauretta Chinyem Amarachi equally testified as CW2 by adopting her written statement on oath of 6/2/23 as her oral evidence and was subsequently cross examined by the defence counsel. One Comrade Abba Hassan testified as CW3 by adopting his written statement on oath of 13/7/2022. He was equally cross-examined by the defendants and document admitted and marked as Exhibit Abba was tendered through him. Claimant testified as CW4 by adopting his witness statement on oath of 13/7/22 and 28/4/23 as his oral evidence and documents admitted and marked as Exhibit B1-B20 were tendered through him in his examination in chief. He was also cross examined by the learned defence counsel who tendered exhibits B21- 1324 through him. The defendants opened their case by calling one Comrade Bobboi Bala Kaigama who testified as DWI. He also adopted his written statement on 20/2/23 as her evidence in this case, Ile was subsequently cross-examined by the Claimant. The 2 defendant testified as DW2. He equally adopted his written statement on oath of 29/7/22 as his evidence in this case. Documents admitted and marked as Exhibit L-1.7 were tendered through him by the defendants. Ile was later crossed examined by the Claimant's counsel while document marked as Exhibit 1.8 was tendered through him by the Claimant.
5. After an in-depth and a careful consideration of the processes filed in this case, the submission of learned counsel to both parties and the authorities cited in support of their respective arguments, it is in the light of all this that I frame these issues for the just determination of this suit.
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1. Whether this Court is clothed with jurisdiction to entertain
Claimant's case?
2. Whether the Claimant can amend his process as he sought to do
in the Motion filed on 12/4/2024.
3. Whether the Claimant has proved his claims to be entitled to the
reliefs sought?
6. With regards to issue one, it is the contention of learned counsel for the defendants that Claimant did not comply with the provisions of Rule 40(a) and (b) of the 1st defendant's constitution which is a condition precedent to the institution of this action. According to him the rule provides a pre- condition that a Claimant as a member of the union must first comply with before approaching the Court and that failure to comply with the said pre- condition ought to oust this Court of its jurisdiction. He cited in support of his assertion the cases of Haladu v. Access Bank [2021] 13 NWLR (Pt. 1974) 434 @@ 458-459; Atolagbe v. Awumi [1997] 9 NWLR (Pt. 522) 536; Waziri v. PDP [2023] 7 NWLR (Pt. 1882) 57 @ 103-104; Oyewo v. Governor of Ekiti State [2023] 17 NWLR (Pt. 1912) 47 @ 68-69; Governor of Imo State v. Amuzie (2019) 10 NWLR (Pt. 1680) 331 @ 348-349. Learned Claimant's counsel on his own part submitted that the Court has the requisite jurisdiction to entertain and determine the issues submitted by the Claimant for determination in this suit, Ile stressed that the technical objection raised by the defendants are misconceived iterating that the days of technicalities are long gone embracing the current vogue of doing substantial justice to both parties in that cases are heard and determined on merit. He cited in support of his assertion the case of Bello v. Attorney General Oyo State [1986] 12 SC and Fawehinmi v. Akilu [1989] 3 NWLR (Pt.112) 643. It is the position of Claimants' counsel that from the issues formulated, learned defence counsel obviously failed to appreciate the case of the laimant by coming to conclusion that this action is intra union dispute. That it was the defendants who precipitated the crises in the 1 defendant when it purported to remove the Claimant from his position as National President in an unlawful manner but that it must be noted that Claimant initiated this suit after the defendants had allegedly expelled him thereby shutting him out and disconnecting him from every rights and obligation which accrue to him as a member of the 1" defendant. Which according to him, includes the right to explore internal mechanism for dispute resolution
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prescribed by Rule 40 of the 1 defendant's Constitution, maintaining that Rule 40 does not apply to the Claimant in the instant suit because Claimant's case is unlawful interference with his lawful mandate leading to his unlawful removal without recourse to the provisions of the same constitution by members of the 1st defendant is a violation of the constitution of the 1st defendant that cannot give rise to Rule 40. He cited the case of Amasike v. The Registrar General C.A.C &Anor [2010] LPELR-456 (SC) P106-106 Paras B-D. He further submitted that by subscribing to the jurisdiction of the 1st defendant under Rule 40, the Claimant would have acquiesced on his right and by implication validated the action of the members of the 1s defendant thereby allowing the defendants to be judges in their own case. He cited in support of this assertion the case Sifax (Nig) Ltd v. Phoenix Capital Ltd & Anor [2023] LPELR-59979 (SC) and Section 15 of the National Industrial Court Act, 2006. He maintained that Claimant having been denied of his membership rights cannot be expected to explore Rule 40 of the 1s defendant's Constitution at the time this suit was instituted. He urged the Court to discountenance as well as dismiss the objection raised by the defence counsel on the basis that Claimant has failed to activate the said
Rule 40.
7. In addressing the above preliminary but germane issue, I must first say that the importance of jurisdiction in the life of a suit cannot be over emphasized; this is because it is the foundation and the blood that runs through the veins of an action without which a case cannot thrive. Thus, a Court must be shown to have the vires to entertain and adjudicate on a matter. By the locus classicus case on this subject MADUKOLU V. NKEMDILIM 1962 NSCC 374, it was held that in order for a Court to have jurisdiction to entertain an action, all these ingredients must be present: a. The Court must be properly constituted us regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; b. The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its Jurisdiction; and c. The case comes before the Court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See; C.O.P Anambra State & Anor v. A. A. Omokhui International Ltd [2018] LPELR-48693(CA)1@ 6 purus. A; Nduul v. Wayo & Ors [2018] LPELR-45151(SC)1(a) 29-30 parus. E and;
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Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd [1992] LPELR-2915(SC)1@23-24 paras. E. Needful to state that all these preconditions must be present and the absence of any one of them will deprive the Court of the competence to entertain a suit. See Ashaka v Nwachukwu [2024] LPELR-61796(SC); Network Securities Ltd v. Dahiru [2022/14 NWLR (Pt. 1850)351@375, Paras F-G; 376, Para A; N.C.C. v. Motophone Ltd [2019/14 NWLR (Pt. 1691)1@30, Paras A-B. However, there is a clear distinction between jurisdictional incompetence which is evident on the face of the proceedings based on the provisions of an enabling statute and one which is dependent on ascertainment of facts and claims of the Claimant. Jurisdictional matters are categorized into two for the purpose of waiver and these are; substantive jurisdiction and procedural jurisdiction. None of the parties has power to waive the former and same cannot be conferred on Court by acquiescence, while the latter can be waived in law. There is no doubt that any condition for the filing of an action has a flavor of jurisdiction but matters of procedural steps such as this, fall under procedural jurisdiction which must be raised timeously in order to be heard. See: Fasade v. Babalola [2003] 11 NWLR (Pt 830) 26. This is because a defendant who submits to the jurisdiction of a Court or tribunal in spite of the defect in jurisdiction procedurally cannot because of waiver complain later. See Thiabe v. Zakari [2012/12 NWLR (Pt. 1315)517@533, Paras F- G; Ndayako v. Dantoro (2004/13 NWLR (Pt. 889)187. The defendants in this case did not at the earliest opportunity raise the issue of non-compliance with the condition precedent in Rule 40 of the 1 defendant's Constitution till when trial has commenced and the Claimant has almost concluded his case. In other words, the defendants raised this issue after they have infact, submitted to the jurisdiction of this Court.
That said, it is however, expedient at this stage to consider the stipulation of the said Rule 40 of the 1" defendant's constitution as to exploring an internal mechanism before an action in Court may be instituted by a member to see if failure of the Claimant to comply with same will affect the jurisdiction of this Court. It is clear from the said rule that the organs of the 1st Defendant that shall consider the report made by an aggrieved member with a view to using internal mechanism to resolve an intra union dispute in the 1st defendant is the Central Working Committee and the National Executive Council. The Claimant's grouse in this case and which is the subject of this
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action is the action of the Central Working Committee (CWS) suspending him from his position as the President of the Union and the subsequent act of the National Executive Council (NEC) permanently removing him from office as President of the Union and appointment of another person in his place and also his expulsion from the Union by the NEC of the 1st defendant. As such, the organs who are at the center of the Claimant's contention/grouse in this case are the ones who will consider the report in Rule 40 of the 1st defendant constitution. Section 36 (1) of the 1999 Constitution, 1999 as amended (hereinafter referred to as "the Constitution) encompasses the twin pillars of justice, namely: "(a) Audi alteram partem (hear the other party). (b) Nemo judex in causa sua (Do not be a Judge in your own cause. As such, it is a standing principle of our jurisprudence that no one can be a Judge in his own cause expressed in the latin maxim; Nemo Judex in causa sua. To expect that Claimant ought to have complied with Rule 40 of the 1st defendant in which case his report of the dispute herein would have to be considered by the CWC and the NEC whose actions brought about the dispute in the first place will be a negation of some of the very well-known principles/tenet upon which our common law is founded. Of great and utmost concern is that such will be a total derogation of one of the major pillars of the principles of natural justice; where it is not allowed for one to be a Judge in his own case. See Federal University Of Agriculture, Makurdi & Ors v. Adaiponu [2021] LPELR-54772(CA)1@ 44-46 paras. B; Agbubiaka 2. First Bank of Nigeria Plc [2020] 6 NWLR (Pt 1719) 77@100 Para B-II and; Sylva v. Independent National Electoral Commission [2015] 16 NWLR (Pt 1486)576@620-621, Para H-C. In my humble view, complying with the provision of Rule 40 would have been a breach of Claimant's right to fair hearing. This Court is a Court of both. common law and equity by the provisions of Section 13 of National Industrial Court Act, 2006 (hereinafter referred to as "the NICA). It is a notorious maxim of equity that equity follows the law. See Oboh & Anor v. Aigeria Football League Ltd & Ors [2022) LPELR-56867(SC) Iw8 paras. E and Akila v. Fawehinmi (no.2) [1989] LPELR-339(SC)1@ 82 paras. A- 4. In this instance both common law and equity will not sanction the doing of an