Dr Adekunle Rolwaile -VS- Academic Staff Union of Research Institutions & 3 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 27^TH OCTOBER, 2021

SUIT NO. NICN/ABJ/230/2020

BETWEEN:

DR ADEKUNLE ROWAIYE ………………………………CLAIMANT

AND:

1. ACADEMIC STAFF UNION OF RESEARCH

INT1TUTIONS

2. COMRADE NNAMDI A. ONUNKA, PRESIDENT,

ACADEMIC STAFI UNION OF RESEARCH INSTITUTIONS

3. COMRADE THEOPHILUS NDUBUAKU, SECRETARY DEFENDANTS

GENERAL, ACADEMIC STAFF UNION OF RESEARCH

INSTITUTIONS

4. COMRADE BABA NMA MOHAMMED, PUBLIC

RELATIONS OFFICER, ACADEMIC STAFF UNION OF

REASECH INSTITUTIONS

REPRESENTATION

JOHN IYAFOKHA Esq. for the Claimant

GABRIEL OGENYI Esq. holding the brief of ANTHONY ITEDIERE Esq. for the Defendants

JUDGEMENT

1. The Claimant instituted this action via Originating Summons filed on 3^rd September, 2020 against the defendants seeking the determination of the following questions:

1. A DECLARATION that by the true construction and interpretation of Rule 11 (k) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 only the National Executive Council is vested with the power to remove any National Officer after due process and subject to right of Appeal to the National Delegates’ Conference.

2. A DECLARATION that by the true construction and interpretation of Rule 11 (m) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 only a Branch of ASURI that is vested with the power to remove any Officer and subject to confirmation by the National Executive Council.

3. A DECLARATION that by the true construction and interpretation of Rule 9 (c) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the Central Working Council is NOT clothed with the specific provision and power to remove any National Officer after due process and subject to right of Appeal to the national Delegates’ Conference or an Officer subject to National Executive Council.

4. A DECLARATION that by the true construction and interpretation of the combined provisions of Rule 11 (k) (m) and Rule 9 (c) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the power to remove an Officer or National Officer is ULTRA VIRES the Central Working Committee and therefore the purported suspension of the Claimant is null and void.

5. A DECLARATION that the Central Working Committee cannot arrogate to itself powers not specifically conferred on it by Academic Staff Union of Research Institute (ASURI) Constitution.

6. AN ORDER of this Honourable Court directing the Defendants to follow strictly the provisions of the ASURI Constitution.

7. AN ORDER of this Court directing the Defendants jointly and severally to pay to the Claimant the sum of N5,000,000 as general and exemplary damages as a result of the conduct of the Defendants.

8. AN ORDER of this Court directing the Defendants jointly and severally to pay the sum of 1,000,000 only being the cost of this suit.

WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

ISSUES

1. Whether by the true construction and interpretation of Rule 11 (k) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 it is the National Executive Council that is vested with the power to remove any National Officer after due process and subject to right of Appeal to the national Delegates’ Conference.

2. Whether by the true construction and interpretation of Rule 11 (m) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 it is a Branch of ASURI that is vested with the power to remove any Officer and subject to the National Executive Council.

3. Whether by the true construction and interpretation of Rule 9 (c) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the Central Working Council is clothed with the specific provision and power to remove any National Officer after due process and subject to right of Appeal to the national Delegates’ Conference or subject to National Executive Council.

4. Whether by the true construction and interpretation of the combined provisions of Rule 11 (k) (m) and Rule 9 (c ) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the power to remove an Officer or National Officer is not ultra vires the Central Working Committee and therefore no provision for due process and subject to right of Appeal to the National Delegates’ Conference or confirmation by the National Executive Council.

ON QUESTIONS 1 AND 2

2. Whether by the true construction and interpretation of Rule 11 (m) of the Constitution Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 it is a Branch of ASURI that is vested with the power to remove any Officer and subject to the National Executive Council’s confirmation.

2. The Claimant’s Counsel answering in the positive that it is the National Executive Council that is vested with the power to remove a national officer and after due process and subject to the right of appeal to the National Delegates’ Conference; and that the Branch of the Union is also vested with the power to remove any Officer subject to confirmation by National Executive Council. Counsel submitted that an express mention of one thing is the exclusion of the other. EHUWA v. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR 1056 S.C., per Akintan, JSC.

ON QUESTION 3

Whether by the true construction and interpretation of Rule 9 (c) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the Central Working Committee is clothed with the specific provision and power to remove any National Officer after due process and subject to right of Appeal to the National Delegates’ Conference or subject to National Executive Council.

3. Counsel responding to the question in the negative, posited that the Central working Committee is not vested with the power to remove any officer and that if the draftsmen had intended it they would have included it expressly as they did in Rule 11(k) and (m). That the powers of the Central Working Committee is spelt out in Rule 9(c) which reads:

The Central Working Committee shall be competent to deal with all matters affecting the Union in between the meeting of the National Executive Council.

4. Counsel argued that the power of the Central Working Committee is as it affects the Union as a body and not the power to carry out any removal or suspension of member or Officer, as the power to do so is strictly vested with the Branch and the National Executive Council in Rule 11 (k) and (m).Furthermore, that the Central Working Committee cannot arrogate to itself specific powers not assigned to it by the Constitution; as there is a specific provision for removal which is vested in NEC and the Branch and the Central Working Committee cannot rely Rule 9 (c ) to in the Light of the specific Rule 11 (k) and (m). CHIEF SHERIFF F. 0. OBOREVWORI & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2011) LPELR -9314 (CA), per NWOSU-IHEME, J.C.A. (P. 12, paras. A-B); SCHERODER & CO. V. MAJOR & CO. (NIG) LTD (1989) 2 NWLR (Pt. 101) 1 at 18 - 19.

ON QUESTION 4

Whether by the true construction and interpretation of the combined provisions of Rule 11 (k) (m) and Rule 9 (c ) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the power to remove an Officer or National Officer is not ultra vires the Central Working Committee and therefore no provision for due process and subject to right of Appeal to the National Delegates’ Conference or confirmation by the National Executive Council.

5. It is Counsel’s submission that the power to remove or suspend is ultra vires the Central Working Committee by virtue of the combined provisions of Rule 11 (k) (m) and Rule 9 (c) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990. OPUDA v. COP, Rivers State (2011) All FWLR Pt. 562, Per Kekere-Ekun JCA, Holding 2.Counsel contended that if an action is unauthorized, it therefore becomes ultra vires, null and void and so is the action of the Defendants to remove the Claimant void and of no effect. E.P. IDERIMA v. RIVERS STATE CIVIL SERVICE COMMISSION (2005) All FWLR page 431 (SC 45/2001), per Onu, JSC @ Holding 13.

6. The Defendants filed a 9 paragraph COUNTER AFFIDAVIT TO APPLICANT’S’ AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS FILED 3RD SEPTEMBER, 2020 (on 26^th March, 2021) and deposed to by the 3^rd Defendant, Dr. Theophilus Ndubuaku.

WRITTEN ADDRESS IN SUPPORT OF RESPONDENTS’ COUNTER-AFFIDAVIT

ISSUE

Whether considering the facts and circumstances of this case the Applicant made out a case of breach of 1^st Defendant/Respondent’s constitution by the Respondents and whether or not the suit is not premature considering the fact that the Central Working Committee’s decision is a product of the procedure for Applicant’s removal as Chairman of NABDA and its decision is subject to National Executive Council appeal/decision.

7. Counsel submitted that the suspension of the Applicant was an interim measure to forestall total breakdown of law and order in NABDA and the Union and that this in no means is not a case of removal from office of the Applicant. He urged the Court to hold that there is a remarkable difference between suspension from office and removal from office.

8. Counsel argued that in view of the Black’s law dictionary (11th Edition) meaning of the word suspension to mean; “the act of temporarily delaying, interrupting,...., the temporary deprivation of a person’s powers or privileges, especially of office or profession”, the Court is referred to the expression in the decision of the Court of Appeal in the BAMISILE Vs. NATIONAL JUDICIAL COUNCIL & ORS (2014) 50 N.L.L.R (PART 164), wherein the court held that; “suspension of an employee from work means suspension from ordinary duties assigned to him by virtue of his office (University of Calabar V. Esiaga (1997)4 NWLR(Pt.502) 719 referred to ) p.72 paras A-B)... suspension of an employee from working will not deny him of the payment of his salaries where the suspension was not specifically stated to be suspension without salary or half salary. Where no such specification is made, the suspended officer is entitled to his salaries and other emoluments during the period of the suspension”.

9. Counsel argued that the issues for determination is the suspension from Chairmanship position of a branch of 1st Defendant; and that it is therefore an internal issue of the union and that it is not a removal but a temporary situation which will require the NEC and NDC of the 1st Defendant to reach a final decision of removal of the Claimant/Applicant. And that this fact is already admitted and needs no further proof in the circumstances of this case. DIN v. AFRICAN NEWSPAPERS OF (NIG) LTD (1990) LPELR-947(SC); JITTE ft ANOR V. OKPULOR (2015) LPELR-25983(SC), Per OGUNBIYI, J.S.C (P. 26, para. E.

10. It is Counsel’s submission that for a court to determine an issue of her jurisdiction in a case of this nature, the requisite processes that should be considered are the processes filed by the Plaintiff/Claimant. EGE SHIPPING & TRADING IND. LTD. V FIGRIS INT’L CORP. (1999) 14 NWLR (Pt. 637) 70 @ 89 paragraph H; Adeyemi V Opeyemi (1997) 9-10 SC 31; Ayanboye & Ors V Balogun (1990) 5 (NWLR) (Pt. 151) 392.

11. Counsel posited that by the provisions of the 1999 Constitution of the Federal Republic of Nigeria as amended, the issue of internal dispute in a union can only come to this court as an appeal. Section 254 (k) (ii) of the 1999 constitution.

He contended that when a fact of a given case is hostile, it is inappropriate to use an originating summons. OSSAI Vs. WAKWAH (2006) ALL FWLR (Pt. 303) 239.

12. Counsel submitted that on the authority of FIB V Pegasus Trading Office (2004) 11 WRN 93 that a document speaks for itself and no evidence could be taken to alter, add to or vary the document. N.I.D.B. Ltd. V. OtaIom Ind. Ltd. (2002) FWLR (Pt. 98) 979 at 998 F-G, (2002) 5 NWLR (Pt. 761)532. He urged the Court to look at suspension letter and invitation by the Ministry of Labour Employment and Productivity respectively in determining this suit.

13. The Claimant filed a 7 paragraph FURTHER AND BETTER AFFFIDAVIT IN SUPPORT OF ORIGINATING SUMMON on 30^th March, 2021 deposed to by the Claimant.

CLAIMANT’S WRITTEN ADDRESS IN SUPPORT OF FURTHER AND BETTER AFFIDAVIT TO THE ORIGINATING SUMMONS

ISSUE

WHETHER THE CONSTITUTION OF ACADEMIC STAFF UNION OF RESEARCH INSTITUTIONS HAS A PROVISION FOR RATIFICATION OF AN ACTION CARRIED OUT ULTRA VIRES AND THEREFORE THE NATIONAL EXECUTIVE COUNCIL CAN RATIFY AN ILLEGALITY AND ACTION CARRIED OUT ULTRA VIRES.

14. Citing Rule 11 (m), Counsel argued that the said Sections/Rules did not mention the Central Working Committee as having the power to remove or suspend any National Officer or the Claimant as done by the Central Working Committee acting ultra vires its powers. That there is no such provision for ratification of such action by the National Executive Council as it relates to removal/suspension of a national officer or member. And that an express mention of one thing is the exclusion of the other. EHUWA v. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR 1056 S.C., per Akintan, JSC. Counsel submitted that the Central Working Committee has no power and therefore the National Executive Council cannot ratify the action, as it is trite law that you cannot put something on nothing and expect it to stand. UAC v McFoy; OPUDA v. COP, Rivers State (2011) All FWLR Pt. 562, per Kekere-Ekun, JCA, Holding 2.

15. REPLY ON POINT OF LAW TO THE DEFENDANTS’ WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT TO THE CLAIMANT’S ORIGINATING SUMMONS filed on 16^th December, 2020.

ISSUE

WHETHER THIS HONOURABLE COURT CAN ASSUME JURISDICTION AND GRANT THE CLAIMANT’S RELIEFS SOUGHT.

16. Learned Counsel posited that Section 7(1) (iv) of National Industrial Court Act 2006 cited by the Defendants in their written address and Section 254 (C) (1) (vi) of the Constitution of the Federal Republic of Nigeria (THIRD ALTERATION) ACT 2010 empowers this Court to exercise jurisdiction to the exclusion of other Courts; Section 254 (C) (1) (vi) of the Constitution of the Federal Republic of Nigeria (THIRD ALTERATION) ACT 2010. The Counsel maintained that what the Originating Summons is asking the Court to do is to look at the exhibited Constitution (Exhibit B) to determine whether the Defendants have the Constitutional power/vires to issue the Claimant with Exhibit A in the face of Rules 11(k) (m) and 9 (c) of Constitution of Academic Staff Union of Research Institutions registered under the Trade Union Act CAP 437 of 1990. Claimant Counsel assuming but not conceding that there is resolution from meeting with Federal Ministry of Labour and Employment, argued that the matter before the Court is the interpretation of the Constitution of the Trade Union as regards who has the power to remove or suspend a member/officer of Academic Staff Union of Research Institution as enshrined in the Constitution of the Union. The Counsel for the Claimant submitted that the Ministry of Labour, Employment and Productivity does not have the power to interpret the Constitution of a trade union, association...that what is before the Court is the construction and interpretation of Rules 11(k) and (m) and Rule 9(c) of the Constitution of Academic Staff Union of Research Institutions registered under the Trade Union Act CAP 437 of 1990) and as contemplated and clearly written in Section 7(1) (iv) of National Industrial Court Act 2006 and Section 254 (C) (1) (vi) of the Constitution of the Federal Republic of Nigeria (THIRD ALTERATION) ACT 2010.

17. The Defendants/Applicants filed a MOTION ON NOTICE on 16^th February, 2021 supported by a 9 paragraph affidavit deposed to by Gabriel Ogenyi Ochima, praying the Court for: AN ORDER of this Honourable Court striking out this suit for want of jurisdiction.

GROUNDS FOR THE APPLICATION

1. The action is premature as issues have not crystallized to institute this suit.

2. That the Claimant has not fulfilled the condition precedent required for this court to property assume jurisdiction to hear and determine this matter same being an intra union matter.

3. The action was not commenced through the appropriate means of commencing a suit of this nature as the facts to proof same are riotous.

WRITTEN ADDRESS IN SUPPORT OF THE MOTION ON NOTICE

ISSUE

Whether this Honourable Court can assume jurisdiction and determine this matter considering the failure of the Claimant to fulfil the mandatory legal requirement/Condition Precedent before instituting this Suit.

18. The Counsel submitted that it is the law that for a court to determine an objection of this nature the requisite processes that should be considered are the processes filed by the Plaintiff/Claimant. EGE SHIPPING & TRADING IND. LTD. V FIGRIS INT’L CORP. (1999) 14 NWLR (Pt. 637) 70 @ 89; Adeyemi V Opeyemi (1997) 9-10 SC 31; Ayanboye & Ors V Balogun (1990) 5 (NWLR) (Pt. 151) 392. It is Counsel’s submission that matters of inter and intra Union dispute must go through the provisions of Trade Dispute Act. That the effect is that the jurisdiction of this court is contingent upon the processes of Part 1 of the TDA being exhausted; and that Inter union disputes are contemplated under Sec. 7 (1) (a) of NIC Act for the purpose of Section 7 (3). The legal effect of the above provisions of the law is that inter union dispute must go through the process of conciliation/mediation and arbitration, therefore, that a matter of this nature can therefore be proper before this court after the above procedure had been followed. Counsel argued that by the provisions of the 1999 Constitution of the Federal Republic of Nigeria as amended, the issue of how the respective organs of a trade union act is a matter that can only come to this court as an appeal. Section 254 (k) (ii) of the 1999 constitution. Counsel contended that it is the Law is that when a fact of a given case is hostile it is inappropriate to use an originating summons. OSSAI V WAKWAH (2006) ALL FWLR (Pt. 303) 239.Counsel submitted that the elegant and well worded address of counsel cannot take the place of evidence. A.N.P.P V USMAN (2008) 12 NWLR (PT 1100) 1. He urged the Court not to be persuaded to hear this case on the premise of the affidavit in support of this originating summons in the unlikely event that this Court finds that the suit is not subject to conciliation and mediation which was commenced at the Ministry of Labour.

19. It is Counsel’s submission that having regard to the facts of this case, it is better to strike same out with cost. MADUKOLU & ORS V NKEMDILIM (1962) 1 ALL NLR 581. Counsel contended that the Claimant has failed and has rather flagrantly refused to make recourse to the internal dispute mechanism of the union before jumping statutory steps to head to this Honourable Court which robs the court of the jurisdiction to hear this matter. ALABI & Ors V. Kwara State Polytechnic & Anor (2012) LPELR -, 9213(CA), per OGBUINYA, J.C.A. (P. 38, Paras. B-F). He further submitted that where a condition precedent is created by a Statute as in this case, fulfillment of such conditions become very fundamental to the jurisdiction of the court. Niger Care Dev. Co. Ltd v. A.S.W.B (2008) 9 NWLR (Pt.1093) 498 at 520, paras. E-F; 521, paras. B-C; 522, paras. EF (SC), PER OGBAUGU, J.S.C.; ALABI & ORS V. KWARA STATE POLYTECHNIC (2012) LPELR -9213 (CA).

20. The Claimants filed a Counter Affidavit to the Defendants Motion of Notice of 16/2/2021 and a written address in support of his application wherein he raised one sole issue

WHETHER THE HONOURABLE CAN ASUME JURISDICTICTION, ENTERTAIN THE ORIGINATING SUMMONS AND GRANT THE CLAIMANTS RELIEF SOUGHT.

21. Learned Counsel submitted that Sec. 7 (1) (iv) of National Industrial Court Act, 2006 cited by the Defendants in their written address and Sec. 254 (c) (1) (iv) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 empowers this Court to exercise jurisdiction to the exclusion of other courts.

22. Counsel submitted that Rule 5 (a) and (b) Constitution of Academic Staff Union of Research Institutions registered under the Trade Union Act Cap. 437 of 1990 says:

(a) This document shall be the “Constitution of the Union’ and it may amended from time to time in strict compliance with Trade Union Act.

(b) The Constitution shall be deemed to be the basis of the contract between the members to establish and operate the Union.

23. It is Counsel’s position that the matter before the Court is the interpretation of the Constitution of the Trade Union as regards who has the power to remove or suspend a member/officer of Academic Union of Research Institutions as enshrined in the Constitution of the Union.

24. He argued that the provisions of he Trade Dispute Act cannot invalidate the provisions of the Constitution of the Federal Republic of Nigeria which is supreme on matters of interpretation of any constitution.

25. Counsel contended that the Ministry of Labour, Employment and Productivity does not have the power to interpret the Constitution of a trade union, association…that what is before the Court is the construction and interpretation of Rules 11k and (m) and Rule 9(c) of the Constitution of Academic Staff Union of Research Institutions registered under the Trade Union Act, CAP 437 of 1990 and as contemplated and clearly written in Sec. 7 (1) (iv) of National Industrial Court Act, 2006 and Sec, 254 (c) (1) (iv) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010.

WRITTEN ADDRESS IN OPPISITION TO APPLICANTS’ MOTION ON NOTICE DATED AND FILED 20TH AUGUST 2020.

ISSUE

Whether considering the circumstance and evidence before this Honourable Court it is in the interest of justice to grant this application.

26. Learned Counsel to the Claimant submitted that the grant of this application will overreach the main issue for consideration in this suit, urging the Court to rather grant speedy hearing of this suit. BAKARE & ANOR V. BAKARE & ORS (2011) LPELR8909 (CA).

27. Counsel submitted that the grant of an interlocutory order that will more or less determine the issue for consideration in the main suit at the interlocutory stage is not legally permissible. NIGERIAN CIVIL SERVICE UNION V. ESSIEN (1985) 3 NWLR (Pt. 12) 306 at 316, per Nnaemeka-Agu, JCA (as he then was); UMEJURU & ORS V. IMORDI & ORS (2009) LPELR-8744(CA).

28. It is Counsel’s position that the act the Applicant is urging the Court to restrain is a concluded act which is the subject of Litigation. And that it is imperative to note that the Applicant’s suit is premised on his suspension which he has come to contest as same according to him is ultra vires the power of the Central Working Committee of the 1st Respondent. That there is in place at the 1st Defendant’s branch an acting chairman who has from the exhibit attached herein effectively is carrying out the duties and functions of the chair of the branch presently.AG & COMMISSIONER FOR JUSTICE, ANAMBRA STATE & ORS V. OKAFOR G ORS (1992) LPELR-3156(SC); NNADI V. AMADI (2010) LPELR-4439(CA).

29. On the 27^th July 2021 the date slated for adoption of final written addresses, the Claimant Counsel was present but the Defendants counsel was absent. The Claimant Counsel adopted and adumbrated his processes (i.e. both the Originating Summons and the Claimant response to the Defendants objection) and the Court evoking Order 45 Rule 7adopted the all the Defendants processes for them and this matter was adjourned for this Judgement.

Court’s Decision

30. Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this judgement and specific mention would be made to them where the need arises. The issues for determination in this suit to my mind are; -

1) Whether there is any merit to the defendant’s objection and

2) Whether the Court can grant the reliefs sought in the Originating Summons.

31. The Defendants objection raised jurisdictional questions which by law must be resolved before any other issue is determined. See AKUME & ANOR V. LIM & ORS(2008) LPELR-3695(CA) Where it was held that “The issue of jurisdiction is a threshold issue and a life line for the continuance of any proceeding. Objections to the Court's jurisdiction ought to be dealt with at the earliest opportunity. A proceeding embarked on without jurisdiction is a nullity ab initio. See the case of ELABANJO V. DAWODU-(2006) 27 NSCQR p 32.Jurisdiction of court is a threshold issue and so once raised, it must be heard first and resolved one way or the other. Any proceedings conducted without jurisdiction no matter how brilliantly handled would amount to a nullity if the court had no jurisdiction to entertain the matter OPARA V. AMADI (2013) 12 NWLR (PT. 1369) 512 @ 517.

32. The Defendants objections are mainly on three flanks, that the action is premature and that the Claimant has not fulfilled the condition precedent for an intra union matter and in addition that the action was not commenced through the appropriate means especially as the nature of the facts of this case are riotous.

33. To the Defendants matters of inter and intra Union dispute must go through the provisions of Trade Dispute Act (the process of conciliation/mediation and arbitration). And that the jurisdiction of this court is contingent upon the processes of Part 1 of the TDA being exhausted; arguing that Inter union disputes are contemplated under Sec. 7 (1) (a) of NIC Act for the purpose of Section 7 (3). Arguing further that the respective organs of a trade union can only come to this court on appeal. Section 254 (k) (ii) of the 1999 constitution. To the defendants, when a fact of a given case is hostile it is inappropriate to use an originating summons. OSSAI V WAKWAH (2006) ALL FWLR (Pt. 303) 239.Urging the Court not to hear this case on the basis of affidavits.

34. The Defendants further contended that the Claimant has failed to make recourse to the internal dispute mechanism of the union before jumping statutory steps to head to this Honourable Court which robs the court of the jurisdiction to hear this matter. ALABI & Ors V. Kwara State Polytechnic & Anor (2012) LPELR -, 9213(CA),

35. To the Claimant, the letter of Suspension exhibited in the Originating Summons as exhibit A is the cause of action to which they seek the Courts interpretation of the 1^st Defendants Constitution Exhibit B and make a pronouncement as to the propriety of the Defendants actions considering the provisions of Rules 11(k),(m) and Rule 9(c). The Claimant continues that Section 254C (1) (vi) 1999 CFRN (as amended) and Section 7(1)(iv) of the National Industrial Court Act 2006 empowers this court to exercise jurisdiction. Arguing that Rule 5(a) and (b) of Exhibit B establish Exhibit B as the constitution as the basis of the contract between the 1^st Defendant members to establish and operate the union and that by Order 3 Rule 3 of the National Industrial Court Civil Procedure Rules 2017 permits the commencement of actions by way of Originating summons in matters relating to the “interpretation of any constitution”. Concluding that the Defendant’s objection was baseless and time consuming urging the Court to assume jurisdiction and determine the Originating summon and grant their reliefs.

36. With respect to the objection as to the Claimant having not fulfilled the condition precedent for an intra union matter, the defendant were relying on the provisions of the Trade Dispute Act LFN 22004; section 1(A) of the TDA, which bars commencement of an action relating to a trade dispute, inter or intra-union dispute in any court of law, and this means the intention of the framers of Decree 47 of 1992 must be that inter and intra-union disputes should first go through the processes of Part 1 of the TDA

“any dispute between employers and workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person”..

and section 54(1) of the National Industrial Court Act 2006.

“Trade dispute” means any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with —

a. the employment or non-employment of any person,

b. terms of employment and physical conditions of work of any person,

c. the conclusion of variation of a collective agreement, and

d. an alleged dispute;

37. And since sections 4 to 9 of the Trade Disputes Act provide the procedure for resolving a trade dispute and that before a dispute can be brought before any court it must have gone through the stages of mediation, conciliation and the Industrial Arbitration Panel (lAP); See BENSON & ORS NASU & ORS., SUIT NO. NIC/56/2007(unreported) delivered on 9/6/2008. H

38. Having considered the position of the legislature it is pertinent to note these provisions and mechanism are only open to unions, employer’s employer association and the like. Individuals such as the Claimant in this suit are not permitted in law to approach Part 1 of the Trade Dispute Act, to better put the provisions of Part 1 are not open to individual complaints like the claimant. See UKWUOM V. FEDERAL MINISTRY OF SPORTS & SOCIAL DEVELOPMENT & ORS. (2007) 7 N.L.L.R. (PT. 18) 275 CA Where the court looked at the Scope of Sec. 7 of NIC Act, 2006 –and held that “… the fact that given that the Trade Dispute Act dispensation, individuals cannot access the dispute resolution processes of Part 1 of the Trade Dispute Act, to shut them out of the National Industrial Court would be manifestly unjust. (p. 338, Para. H; P. 339 Paras. A-C. In this instant case I find that the internal remedies of mediation conciliation and etc do not avail the claimant. See OYELEKE & ORS. V. NICON INSURANCE & ANOR. (2008) 11 N.L.L.R. (PT. 30) NIC 322. Furthermore five of the eight reliefs sought by the Claimant five of which are declaratory in nature and such declaratory reliefs can only be granted in a court of law not via Part 1 of the TDA 2004, See A.G. ENUGU STATE v. NANNM & ORS. (2014) 40 NLLR (PT. 123) 379

39. For that reason the Claimant is in order to have commenced this suit in this manner. I hold.

40. The Defendants have also argued that the action was not commenced through the appropriate means especially as the nature of this case is riotous. I find that this their argument is in line with the previous stance of the law: that ….“The proper order a trial court should make where it finds that an action had been wrongly commenced by Originating Summons is to order pleadings and not to dismiss such action or pronounce on the merits of the case. However more recently in the case of CA/ABJ/14/2018 (NICNLKJ/03/2017) ALHAJI NUHU AHMED Vs, GOVERNOR OF KOGI STATE & 3 ORS. The Court of Appeal in an appeal against an order of this Court that parties in suit commenced by an Originating summons where directed to file pleadings in line with the age long practice, the Appellate Court held that this court, the lower court could have resolved the issue at hand on the questions formulated and the documents before it,. This appears to tbe the new yardstick in determining matters such as this. Can the court adequately resolve the questions on the affidaivits before the Court. See also SUIT NO: NICN/ABJ/89/2019 COMRADE GIMBO OLUWASEYI MOHAMMED & ANOR Vs. PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATIION delivered 29^th June 2020. Looking at the 4 questions and the 8 reliefs posited by the Applicant and the gravamen of this issues which are narrowed down to suspension and the interpretation documents. I am satisfied that the questions being asked can effectively be answered without recourse to further or oral evidence. This flank of the Defendants objection fails for lack of merit.

41. The jurisdiction of a court is granted by statute or the Constitution but not by the court. No court has the jurisdiction to go beyond the provisions of the enabling law; otherwise any action by it will be ultra vires. UGBA V. SUSWAM (2013) 4 NWLR (PT. 1345) 427.

42. It is well settled that it is the claim of the claimant that gives the court jurisdiction.

43. The supreme court in ONUEKWUSI Vs REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH. Held that the law is well settled, that the nature of the claim placed before the court that determines whether the court has jurisdiction over the subject matter. ADEYEMEI & ORS Vs OPEYON [1976]10 DC 31 at p51. And the court only needs to consider the complaint and the statement of facts A. G. ANAMBRA Vs. A.G. FEDERATION [1993] 6 NWLR (Pt. 302) 692, A.G. FEDERATION Vs. OSHIOMOLE [2204] 3NWLR (Pt.860) 305. The jurisdiction of this court is as of now and in the main governed by Section 254 C (1) , (2), (3), (4) AND (5) OF the 1999 CFRN See FEMI BABALOLA Vs. ACCESS BANK NICN/LA/123/2012 (unreported) delivered on the 23^rd January 2013. I will for the purposes of this ruling reproduce Section254 C(1) (a) & (k) as follows.

“The National Industrial court shall have and exercise jurisdiction to the exclusion of any other court or civil causes or matters-

44. Relating or connected to any labour, employment, trade union, industrial relation and matters arising from the workplace, condition of services, including health and safety, welfare of labour, employee, worker and matters incidental to or connected therewith.” and

45. I am satisfied that this matter is properly before this court and that this court has the requisite jurisdiction to hear and determine this suit. All in all I find that the Defendants objection lacks merit on all flanks and is hereby dismissed.

Now to the Originating summons,

46. The Claimants are seeking in reliefs 1-5, Declarations as to the true construction and interpretation of Rule 11 (k), Rule 11 (m), Rule 9 (c) of the Constitution of Academic Staff

47. Union of Research Institution (ASURI) with regards to who is empowered to remove any National Officer whether it is the National Executive Council only, or and a Branch of ASURI only subject to confirmation by the National Executive Council, or whether the Central Working Council is NOT clothed with the specific provision and power to remove any National Officer or ultra vires the power of the CWC so as to render the suspension of the Claimant is null and void and whether the CWC can arrogate to itself powers not conferred by the Constitution. While in reliefs 6-8 the Claimant is seeking separate orders directing the Defendants to strictly follow their Constitution, to pay the um if N5, 000 000.00 as damages, and 1, 000.0000 as costs of this suit.

48. The provision of Rule 11 (k), Rule 11 (m), and Rule 9 (c) provide as follows.

(k) The National Executive Council may remove any National Officer for just cause after due process, subject to the right of appeal to the National Delegates’ Conference.

(m) A branch shall have the power to remove any Officer elected or appointed by it, subject to confirmation by the National Executive Council.

RULE 9: CENTRAL WORKING COMMITTEE (CWC)

(a) The Union shall be administered in between the meetings of the National Executive Council by the Central Working Committee (CWC)

(b) The Central Working Committee shall consist of all National officers of the Union and such number of members as may be co-opted by the President as may be defined from time to time.

(c) The Central Working Committee shall be competent to deal with all matters affecting the union in between the meeting of the National Executive Council

49. ''The Law is already settled on interpretation of statute, that the court must first examine the ordinary literal meaning. The Supreme Court in the case of ATTORNEY GENERAL OGUN STATE V. ALHAJI A. ABERNAGBA & ORS. (1985) 4 S.C. (PART 1)288 AT 383, stated as follows:- "In the interpretation of statutes, the ordinary literal meaning must first be examined. If the word are clear and unambiguous then the ordinary literal meaning must be given to them for then the intention of the maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other canons of interpretation. See -AWOLOWO V. SHAGARI (1979) 6 -9 S.C. 51."On the interpretation of statutes, see also:- OYEYEMI V COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) SCJN 266 AT 280; ARTRA IND. NIG. LTD. V. NBCI (1998) 13 SCJN 97 AT 115; BAKARE V. NRC (2007) 17 NWLR (PT.1064) 639: ODUTOLAHOLDINGS LTD. V. LADEJOBI (2006) 12 NWLR (PT. 994) 321 AT 358: UNIPETROL V. E.S.B.I.R. (2006) 8 NWLR (PT.983) 624 AT 641; RIVERS STATE GOVERNMENT V. SPECIALIST KONSOLT (2005) 7 NWLR (PT.923) 145 AT 179." Per Bage, J.S.C (P. 32, paras. A-E).

50. INTERPRETATION OF STATUTE - RULES OF INTERPRETATION OF STATUTE - Guiding rule in the interpretation of provisions of statutes and/or documents

51. "The duty of a Court is to interpret the words the author of a document has used. Consequently, where in their ordinary meaning, the provision of a document are clear and unambiguous, effect should be given to such provisions. See PLATEAU INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LTD. V. PHILIP EBHOTA & ORS. (2001) 4 NWLR (PT. 704) 495 AT 518 PARA. C. CITY ENGINEERING (NIG.) LTD. V. NIGERIA AIRPORTS AUTHORITY (1999) 11 NWLR (PT.625) 76; A.-G., BENDEL STATE V. A.-G., FED. (1982) 3 NCLR 1referred to and applied. It will not be an over flogging to say that where a body is a creation of statute it must act in accordance with the law creating it. See ONDO STATE UNIVERSITY V. FOLAYAN (1994) 7 NWLR (PT. 354) 1 AT 36. Therefore in interpreting a law or laws, the Courts should do so as they ought to be. See ONYEANUSI V. MISCELLANEOUS OFFENCES TRIBUNAL (2002) 12 NWLR (PT. 781) 227 AT 250 PARAS. C - D. It is then clear that Courts are enjoined to apply the literal interpretation of words where such words are used in a statute without any ambiguity.

52. Now the provisions of under consideration are; -

(k) The National Executive Council may remove any National Officer for just cause after due process, subject to the right of appeal to the National Delegates’ Conference.

(m) A branch shall have the power to remove any Officer elected or appointed by it, subject to confirmation by the National Executive Council.

(c) The Central Working Committee shall be competent to deal with all matters affecting the union in between the meeting of the National Executive Council

53. With the canons of interpretation in mind Rule 11 (k)which states that “ The National Executive Council may remove any National Officer for just cause after due process, subject to the right of appeal to the National Delegates’ Conference”.

54. Clearly confers on the National Executive Council the author power or vires to remove any National Officer. While Rule 11(m) which states “A branch shall have the power to remove any Officer elected or appointed by it, subject to confirmation by the National Executive Council givers the branch authority, power or vires to remove any elected officer or officer appointed by it.

55. Reading through the whole gamut of the claimant’s constitution I find that apart from the National Executive Council and the Branch, no other Organ of the union is entrusted with the power to remove Officers. I find and hold.

56. Section 11(1) of the Interpretation Act, Cap. 192 of the Laws of the Federation of Nigeria, 1990 supports the axiom, that the power to appoint is the power to remove, Interpretation Act. provides as follows:-

"11(1) where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specific period or not the power includes:-

(a) ...

(b) power to remove or suspend him."

57. By application of the Interpretation Act the Defendants constitution having given the National Executive Council and the Branch the express power to appoint an Officer it means that only the said organs can remove or suspend the Claimant as it is an elementary rule of statutory interpretation and application that the express mention of one thing in a statutory provision exclude those not mentioned. See AZUBUIKE & ANOR. V. GOVERNMENT OF ENUGU STATE & ANOR(2013) LPELR-20381(CA).

58. Based on the foregoing I can answer questions 1. 2 and 3 in the affirmative

The 1^st defendants Constitution sets out the function of the Central Working Committee in rule 9.

(a) The Union shall be administered in between the meetings of the National Executive Council by the Central Working Committee (CWC)

(b) The Central Working Committee shall consist of all National officers of the Union and such number of members as may be co-opted by the President as may be defined from time to time

(c) The Central Working Committee shall be competent to deal with all matters affecting the union in between the meeting of the National Executive Council.

59. The Central Working Committee is charged with running the union between the meetings of the NEC."It is trite law, based on the principle of "expressio unis exclusio alterius", that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication with regard to the same issue. See DONBRAYE & ANOR v. PREYOR & ORS (2014) LPELR-22286; EGEONU v. INEC & ORS (2014) LPELR-22868

60. The defendants have argued that the action taken was in continuation of a process and that suspension was not a termination but part of a procedure. These considerations I find are untenable, the question is not the intentions of the defendants but the authority and proprietary of the defendants’ (CWC) action. The question is can the defendants Central Working Committee suspend the Claimant and the answer is that by the 1^st Defendants Constitution the answer would be in the negative. The Central Working Committee and the defendants acting as they did in the Letter of Suspension lack the requisite vires to suspend the Claimant. The dais letter of suspension is null and void and hereby set aside by order of this Court.

61. From the foregoing and looking at the questions posed by the claimant I can answer questions 4 and 5 in the affirmative.

62. In relief 7 the claimant is asking for N5m for exemplary and general damages apart from the averment that the CWC caused him much pain and embarrassment branding him with derogatory words and uncouth language, the Claimant has not shown the Court how he arrived at N5m. Embarrassment, Derogatory words and uncouth language painting the Claimant black all come within the realm of defamation and this is neither the procedure to recover such injury neither has the Claimant established the essentials of the actual defamatory word or publication. The Claim for exemplary damages.

63. The Claimants Case succeeds but only this far:

1. It is hereby declared that by the true construction and interpretation of Rule 11 (k) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 only the National Executive Council is vested with the power to remove any National Officer.

2. It is hereby declared that by the true construction and interpretation of Rule 11 (m) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 only a Branch of ASURI that is vested with the power to remove any Officer/

3. It is hereby declared that by the true construction and interpretation of Rule 9 (c) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the Central Working Council is NOT clothed with the specific provision and power to remove any National Officer.

4. It is hereby declared that by the true construction and interpretation of the combined provisions of Rule 11 (k) (m) and Rule 9 (c) of the Constitution of Academic Staff Union of Research Institution (ASURI) registered under the Trade Union Act CAP 437 of 1990 the power to remove an Officer or National Officer is ULTRA VIRES the Central Working Committee and therefore the purported suspension of the Claimant is null and void.

5. It is hereby declared that the Central Working Committee cannot arrogate to itself powers not specifically conferred on it by Academic Staff Union of Research Institute (ASURI) Constitution.

6. BY ORDER of this Court the Defendants are hereby directed to follow strictly the provisions of the ASURI Constitution.

7. BY ORDER of this Court the Defendants are hereby directed to jointly and severally pay to the Claimant the sum of N2,000,000 as general damages as a result of their conduct.

8. BY ORDER of this Court the Defendants are hereby directed to jointly and severally pay the sum of N500,000 only being the cost of this suit.

64. This is the Courts Judgement and it is hereby entered.

…………………………………………….

HON. JUSTICE E. N. AGBAKOBA

JUDGE

COURT 3 ABUJA