IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: 29 MARCH 2022
SUIT NO. NICN/ABJ/139/2021
BETWEEN
Stella Okoh-Esene
(Chairperson of Nigeria Association of Women Journalists [NAWOJ]) - Claimant
AND
1. Nigeria Association of Women Journalists (NAWOJ)
2. Nigeria Union of Journalists (NUJ)
3. The Chairman, Nigeria Union of Journalists (NUJ)
4. The Chairman, Credentials Committee (2020) (NAWOJ) Elections,
Nigeria Association of Women Journalists, FCT Chapter
5. Anna K. Daniels - Defendants
REPRESENTATION
Kanu Oko Agabi, for the claimant.
Osuagwu Ugochukwu, for the 1st, 2nd, 3rd and 5th defendants.
Olufemi M. Balogun, for the 4th defendant.
JUDGMENT
INTRODUCTION
1. The originating summons in this case was filed on 5 July 2021 by the claimant. The claimant prays this Court to determine the following three questions:
(1) Where upon a lucid interpretation of the clear provisions of Articles 3, 5, 6 and 7 of the Constitution of the 1st and 2nd Defendants, under which the rights of a person to become a member, contest elections or be disciplined by the 1st and/or 2nd Defendant(s) is specified and guaranteed, the 1st and/or 2nd Defendant(s) can disqualify the Claimant from contesting the 2020 Elections purportedly held by the Nigeria Association of Women Journalists (on 12/12/2020), on the grounds that her certificate in Advanced Diploma in Journalism is not recognized and that the Claimant lacks of the requisite 7-year qualification to contest the post of Chairperson of the 1st Defendant, despite the fact that Nigeria Union of Journalists and Nigeria Association of Women Journalists both recognize a Certificate in Advanced Diploma in Journalism and the Claimant has practiced journalism for more than 20 years.
(2) Whether upon interpretation of Article 7 of the Constitution of the 1st and 2nd Defendants, under which a member of the Union can be suspended, the 2nd Defendant’s purported letter of suspension issued on March 8, 2020 arbitrary, unlawful, null and void and of no effect, having not afforded the Claimant the opportunity to be heard, even though she exhausted the internal mechanism for dispute resolution before going to court, which mechanism was clearly bias against her, as they never responded to her appeals, and went ahead with the elections into the office of the Chairperson of the FCT Chapter of the 1st Defendant (NAWOJ) held on the 12/12/2020.
(3) In the circumstance of affirmative answers to questions 1 and 2 above, whether the Claimant is not entitled to be reinstated as the Chairperson of the Nigeria Association of Women journalists [NAWOJ], pending when a valid election is conducted.
2. The claimant then prayed for the following 13 reliefs:
(1) A DECLARATION that upon a lucid interpretation of the clear provisions of Article 3, 5, 6 and 7 of the Constitution of the 1st and 2nd Defendant under which the rights of a person to become a member, contest elections or be disciplined, by the 1st and/or 2nd Defendant(s) is specified and guaranteed, the Defendants cannot disqualify the Claimant from contesting the 2020 Elections purportedly held by the Nigeria Association of Women Journalists (on 12/12/2020), on the grounds that her certificate in Advanced Diploma in Journalism is not recognized and that the Claimant lacks the requisite 7-year qualification to contest the post of Chairperson of the 1st Defendant, despite the fact that Nigeria Union of Journalists and Nigeria Association of Women Journalists both recognize a Certificate in Advanced Diploma in Journalism and the Claimant has practiced journalism for more than 20 years.
(2) A DECLARATION that the disqualification of the Claimant by the 4th Defendant and purported elections held by the 1st, 4th and 5th Defendants on 12/12/2020, to elect the Chairperson of the FCT Chapter of the 1st Defendant is illegal and unconstitutional, being that the only opponent of the 5th Defendant in the said election was wrongly and unlawfully dismissed, leaving the 5th Defendant unopposed in the said elections.
(3) A DECLARATION that the Claimant, in the absence of an election held through a constitutional and democratic process, remains the only substantive and duly elected Chairman of the 1st Defendant (Nigeria Association of Women Journalists), or IN THE ALTERNATIVE, AN ORDER reinstating the Claimant as the Chairman of the Abuja Chapter of the Nigeria Association of Women Journalists (NAWOJ).
(4) A DECLARATION that the candidacy of the 5th Defendant in the purported elections held on the 12th day of December, 2020, and her subsequent appointment/installation as Chairperson of the 1st Defendant by the 3rd and 4th Defendants is invalid and in gross violation of the 1st and 2nd Defendants' Constitution.
(5) AN ORDER of this Honourable Court directing the 1st, 3rd, 4th and 5th Defendants to continue to recognize and work with the Claimant as the validly elected/substantive Chairman of the Nigeria Association of Women journalist (FCT Chapter) in the absence of a valid and constitutional election, until a valid election is conducted through a democratic and constitutionally guaranteed process.
(6) AN ORDER of this Honourable Court directing the 1st, 2nd, 3rd and 4th Defendants not to recognize in any manner or to have any dealing whatsoever with the 5th Defendant with regards to the leadership/Chairmanship or in any official capacity of the 1st Defendant's FCT Chapter.
(7) AN ORDER of perpetual injunction restraining the 1st, 2nd, 3rd, and 4th Defendants from disqualifying and or stopping the Claimant from contesting in any future elections; and/or preventing or stopping the Claimant from carrying out her functions as the duly elected and substantive Chairman of the 1st Defendant, pending the conduction of a valid election.
(8) AN ORDER of this Honourable Court declaring as illegal and unconstitutional and vacating the decision of the Defendants which disqualified the Claimant from contesting NAWOJ elections.
(9) A DECLARATION that the purported letter of dismissal issued by the 2nd Defendant on May 8, 2021 is unlawful, null and void and of no effect whatsoever, and the 2nd Defendant acted arbitrarily when they suspended the Claimant, even though she exhausted the internal mechanism for dispute resolution before going to court.
(10) AN ORDER of this Honourable Court nullifying the purported indefinite suspension of the Claimant made by the 2nd Defendant on Monday 8 March, 2021.
(11) AN ORDER OF PERPETUAL INJUNCTION restraining the 1st – 5th Defendants by themselves, their agents, servants, privies or any other person or persons acting through them from further suspending, threatening, harassing, or victimizing the Claimant or in any other manner violating/infringing on the Claimant’s rights to peaceful assembly and association.
(12) AN ORDER directing the 1st, 3rd and 4th Defendants to pay to the Claimant the cost of Three Million Five Hundred Thousand Naira (N3,500,000) only being the cost of litigating this action.
(13) AN ORDER directing the 1st, 3rd and 4th Defendants to pay the Claimant the cost of Seven Million Naira (N7,000,000) only as general damages.
3. The grounds upon which the reliefs are sought are 23. They are:
(1) The Claimant is a member of the 1st Defendant and the duly elected Chairman of the Abuja Chapter of the 1st Defendant.
(2) The 1st Defendant is the Nigeria Association of Women Journalists. The 2nd Defendant is a registered body for all practicing journalists in Nigeria, and a supervisory body to the Nigeria Association of Women Journalists [NAWOJ], the 1st Defendant in this suit.
(3) The 3rd and 4th Defendants are officials of the NUJ and (NAWOJ) respectively, while the 5th Defendant was the only other contestant standing against the Claimant before her disqualification from contesting the NAWOJ Chairmanship elections purportedly held on the 12/12/2020.
(4) The Claimant was disqualified by the 4th Defendant (Chairman, Credentials Committee of the Nigeria Association of Women Journalists [NAWOJ], FCT CHAPTER) on the grounds that her Certificate in Advanced Diploma in Journalism is not recognized by the Committee, and that the Claimant does not have the requisite 7 year qualification to contest the post of Chairperson of NAWOJ, despite the fact that she has practiced journalism for more than 20 years.
(5) The 1st and 4th Defendants have no right to disqualify the Claimant on the above grounds because her Certificate is recognized as it was awarded by the Times Journalism Institute, Nigeria’s first Journalism Institute and there is no such law that precludes the Claimant from contesting the said elections purportedly held on the 12/12/2020, on the ground that she converted from the graphics unit of the Federal Ministry of Information to an information officer in the same Ministry which does not in any way affect the fact that she has accumulated more than 20 years experience.
(6) The Claimant has the requisite qualification, experience and standing and is by all standards of the Constitution of the Nigeria Union of Journalists (NUJ) eligible to contest for the office of the Chairperson of the Nigeria Association of Women Journalists [NAWOJ].
(7) The Claimant did not at any time before her purported disqualification and invalid elections held on the 12/12/2020 withdrawn (sic) her candidacy in the said elections, but was wrongfully disqualified.
(8) There is nothing in the Constitution of the Nigeria Union of Journalist (which is adopted and ratified by the Nigeria Association of Women Journalists) that precludes the Defendant from contesting in the election of the 1st Defendant.
(9) Because of the fraudulent and wrongful disqualification of the Claimant, the 5th Defendant stood unopposed in the purported elections held on the 12/12/2020, against the interest of the members of the Association.
(10) The election held on the 12/12/2020 is not only invalid, but is in contravention of the Constitution of the Federal Republic of Nigeria, and held in gross violation of the Claimant’s rights and the Constitution of the 1st and 2nd Defendants.
(11) Assuming without conceding that the Claimant stood to be disqualified from contesting the 12/12/2020 election, the procedures laid down to be followed for disciplinary actions against journalists as provided in Article 7(2i) of the constitution of the Nigeria Union of Journalists were not followed.
(12) The disqualification of the Claimant is malicious.
(13) The Claimant was threatened on several occasions by the Presidents of the 1st and 2nd Defendant for not supporting their candidate at the general elections into offices of the Nigeria Association of Women Journalists.
(14) After the threat, the Claimant was invited by the credential committee to appear before them to defend allegations contained in a Petition, which the Claimant did.
(15) The Claimant was shocked three days after to see that the Secretary of the credentials committee had pasted a Notice of Disqualification addressed to the Claimant.
(16) Her disqualification came just a few days to the said elections that took place on the 12/12/2020, and despite the short notice before the disqualification, the Claimant still exhausted the internal mechanism, and only resorted to court when she found out that they were being bias, and were still going on with the elections, in spite of the unjust manner in which she was disqualified.
(17) When the Claimant and her supporters saw the disqualification notice, they appealed to the President of the 1st and 2nd Defendants against the Claimant’s disqualification and the Claimant wrote to the President of the 1st Defendant appealing same to no avail.
(18) The Claimant appealed to various members and officers of the 1st and 2nd Defendants to no avail.
(19) Aggrieved, Claimant through her Counsel approached the High Court of the Federal Capital Territory in error, for the determination of the issues between her and the Defendants.
(20) The matter was not heard, but 1st – 4th Defendants were represented by their Counsel in the person of Barrister Osuagwu, on March 8, 2021 when the matter first came up, and their Counsel craved the Court’s indulgence to adjourn so that parties can attempt to resolve out of court.
(21) The Claimant was thereafter wrongly and maliciously suspended without any reason whatsoever, on the same day that the High Court of the Federal Capital Territory asked parties to make an attempt at settling out of court (March 8, 2021).
(22) Her suspension came despite the fact that the Claimant had exhausted the internal mechanism for resolution of the issues between her and the Defendants to no avail, before going to court.
(23) The 1st and 2nd Defendants acted in gross violation of the Constitutionally guaranteed rights of the Claimant and in violation of the Constitution of the 1st and 2nd Defendants.
4. The 5th defendant in reaction filed only a preliminary objection — she did not even react to the originating summons. The other defendants merely reacted to the originating summons by filing counter-affidavits and written addresses.
5. I shall accordingly take the 5th defendant’s preliminary objection first before addressing the merit of the originating summons.
THE 5TH DEFENDANT’S PRELIMINARY OBJECTION
The Submissions of the 5th Defendant
6. The 5th defendant’s preliminary objection is brought pursuant to Order 18 Rule 2(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the inherent jurisdiction of the Court. The objection prays the Court for an order striking out and/or dismissing this suit for lack of jurisdiction.
7. The grounds upon which the objection is based are:
(1) The Originating summons was not served personally on the 5th DEFENDANT/APPLICANT nor was she served through an order for substituted service.
(2) The instant suit, commenced by way of Originating summons instead of Complaint is incompetent.
(3) The instant suit constitutes an abuse of Court process as similar suit is pending before an Abuja High Court in suit No. CV/075/2021 same not properly discontinued.
8. The 5th defendant submitted three issues for determination, namely:
(1) Whether the 5TH DEFENDANT/APPLICANT who from the records of the court was not personally served with the originating processes is entitled to have this suit set aside and or struck out for lack of jurisdiction.
(2) Whether the Plaintiff is said to have properly commenced this suit by using ORIGINATING SUMMONS in the face the contentious facts deposed to by her in her Affidavit in Support of the Originating Summons.
(3) Whether this Suit does not constitute an abuse of Court process considering the existence of SUIT NO. CV/075/2021 pending before an ABUJA High Court between both parties and not shown to be properly discontinued prior to filing this suit.
9. On issue (1), the 5th defendant submitted that from the records of this Court, there is no proof that the 5TH DEFENDANT was personally served with this suit and there is also nothing in the Court’s file to show that the plaintiff obtained an ORDER FOR SUBSTITUTED SERVICE. Accordingly, that the 5TH Defendant is entitled to object to the competence of the plaintiff's suit and the jurisdiction of this Court to entertain same on this ground. Thus, that once the objection to jurisdiction of the Court is raised, the Court has inherent power to consider this application first even without the 5TH DEFENDANT filing is defence, citing Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd [1992] 5 NWLR (Pt. 244) 675 at 693. That in Ihedioha & anor v. Okorocha & ors [2015] LPELR-SC.660/2015, it was held thus:
Ordinarily, the form of service required is personal service unless otherwise directed by the Court. In other words, where personal service is required and service is effected without leave of Court for substituted service, any such service will be void and will not be countenanced by the Court.
10. On effect of failure to serve originating process(es), the 5th defendant referred to Harry v. Menakaya [2017] LPELR-42363(SC), which held that the service of the originating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity. Put differently, that a court will not be clothed with jurisdiction to adjudicate on any matter if one of the parties has not been served with either the initiating process or the hearing notice for a particular day or proceedings, citing also New Nigerian Newspapers v. Oteh [1992] 4 NWLR (Pt. 237) at 626 and Julius Berger (Nig.) Ltd v. Femi [1993] 5 NWLR (Pt. 295) 612. That service ensures jurisdiction. Every other process filed in the absence of service of the originating process has nothing to stand on to say the least being countenanced by a court of law, citing Miden Systems Ltd v. Effiong [2011] 2 NWLR (Pt. 1231) 354 at 366 and Ndasuko v. Mohammed [2007] 2 WRN 178. In the case at hand, there is no affidavit of service to show that the originating summons was personally served on the 5th defendant having been sued in her personal capacity as “ANNE DANIEL” and not even as NAWOJ CHAIRPERSON. The 5th defendant then urged the Court to decline JURISDICTION in the face of non-service of the ORIGINATING SUMMONS ON the 5th DEFENDANT and strike out this suit.
11. For issue (2), the 5th defendant submitted that to answer the issue, a journey to the mode of commencement of actions in this Court will be of help. That section 3(1) of the NIC Rules 2007 has this to say:
Any action for determination by the court shall be commenced by way of complaint which shall be filed and sealed. The complaint shall be in Form I with such modifications or variations as circumstances may require.
That under the National Industrial Court (NICN) Practice Direction 2012, Order 3 Rule 5 has an additional rule “A” as follows:
5A(1) Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the right of the persons interested.
12. That from these rules quoted above the mode of commencement of actions in this Court have been limited to complaints and originating summons. Originating summons is not originating motion. Moreover, where originating summons is to be used, it must be limited to questions of construction of instruments where substantial dispute of facts are not likely, citing Doherty v. Doherty [1964] NMLR 144, Jumoh v. Olawoye [2003] 10 NWLR (Pt. 828) 307 and Mudashiru v. Abdulahi [2009] 17 NWLR (Pt. 117) 547 at 568. The 5th defendant submitted that the originating summons in this suit is incompetent, same having been issued in contravention of the mandatory provisions of Order 3 Rules 1 - 7 of the National Industrial Court Rules 2007. That the Rules of Court are made to be obeyed, observed and followed by the parties to a suit, particularly as they regulate matters in court and help parties to present their case within the procedure made to achieve a fair and quick trial of cases. That there will be no order in judicial process where the rules governing the process are not obeyed. That parties in litigation do not have options but to comply with the requirements of the rules, referring Afribank (Nig.) Ltd v. Akwara [2006] 5 NWLR (Pt. 974) 568 at 646 and 655 and ERN Ltd v. Halilco (Nig.) Ltd [2006] 7 NWLR (Pt. 980) 568 at 584.
13. The 5th defendant went on that an originating summons is used where the court is being invited to interpret a document, instrument or statute in a matter where the facts are not in substantial dispute. That based on the affidavit filed by the plaintiff herein, the issues for determination raised under the originating summons make it incumbent on this Court to take testimony and make findings of fact prior to coming to a decision in law in this case. That an originating summons is a court process best suited where the facts are not in contention and in dispute. That it is best suited where any person is claiming an interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for declaration of his interest, relying on Famfa Oil Ltd v. AG, Federation [2003] 18 NWLR (Pt. 852) 453 at 467.
14. The 5th defendant continued that by virtue of Order 3 Rule 5A of “the National Industrial Court 2007”, originating summons is only permitted to be used where there are no dispute as to the facts or where the issue in controversy borders and touches on interpretation of statute or document or terms of contract. From the provisions of the above mentioned rules it is clear that originating summons proceedings cannot be used where there are contested or there is likely hood that the proceedings would be hostile and requiring that evidence be led or adduced in support of facts asserted. That from the features on texture of the case the claimant has employed the wrong proceedings to commence his action. That the law is that where the court finds that an originating summons should not have been used as in the instant case, it ought to strike out the case, citing Emezi v. Osuagwu [2005] 12 NWLR (Pt. 939) 340 at 369 where it was held “That originating summons stands no chance of conversion to a writ of summons and ought to be struck out”.
15. It is the submission of the 5th defendant that this suit cannot be resolved without calling oral evidence considering the serious accusations made against the 2nd and 3rd defendants who were accused of threatening the plaintiff with disqualification. That a cursory look at the plaintiff's affidavit in support of the originating summons will show that paragraphs 13, 14, 18, 19, 20, 22, 24, 28, 30, 34, 36, 37, 42 and 44 are contentious and disputable facts requiring calling for oral testimonies. The 5th defendant then urged the Court to so hold that this proceeding can only best be adjudicated using complaint and not originating summons. That his Court should accordingly strike out this suit or at best order the plaintiff to commence this suit using the complaint procedure, not originating summons.
16. In issue (3), the 5th defendant argues that this suit is an abuse of court process given the existence of Suit No. CV/075/2021 pending before an Abuja High Court between both parties and not shown to be properly discontinued prior to filing this suit. That the plaintiff exhibited a photocopy of a NOTICE OF DISCONTINUANCE marked EXHIBIT AK 11 purportedly claiming that Suit No. CV/075/202l pending before the ABUJA HIGH COURT has been discontinued. That Notice of Discontinuance is a public document and cannot be received in evidence by mere filing of photocopy. That it must be by certified true copy. That the said NOTICE OF DISCONTINUANCE is not certified.
17. The 5th defendant then asked if it is proper or not to raise an objection concerning a photocopy of a public document attached to an affidavit as an exhibit where such document is not a certified true copy (CTC) of the original document; and answered in the affirmative. That it is not in dispute that admissibility of a document, including an exhibit, is governed by the provisions of the Evidence Act. That by virtue of sections 89(e) and 90(c) of the Evidence Act 2011, only a certified true copy of a secondary evidence of a public document (exhibit) is admissible. That it will amount to a gross violation of the above clear requirement of the law where parties and the court allow an uncertified exhibit to be admitted in evidence or relied upon. That the law is settled that the only admissible secondary evidence of a public document is the certified true copy of such document, citing Araka v. Egbue [2003] 17 NWLR (Pt. 848) 1 and section 104 of the Evidence Act, which provides for how a public document is to be certified.
18. The 5th defendant then asked whether the mere filing of notice of discontinuance amounts to discontinuance. She answered in the negative. That notice of discontinuance not served on the other parties to a suit leaves the suit alive and kicking and not discontinued. That a cursory look at the court’s file will show that Exhibit AK 11 has no proof of service of the discontinuance notice on the defendants. That to discontinue a claim or part of a claim, a claimant must (a) file a notice of discontinuance, and (b) serve a copy of it on every other party to the proceedings. That by the express provision of Order 24 Rule 1(1) of the ABUJA HIGH COURT CIVIL PROCEDURE RULES:
The Claimant may at any time before receipt of the defence or after the receipt, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the Defendants or withdraw any part or parts of his claim. He shall pay the Defendant’s costs of action, or if the action be not wholly discontinued, the costs occasioned by the matter withdrawn.
19. That there is no proof of service of the notice of discontinuance on the parties (defendants) thus rendering the said notice of discontinuance as invalid and rendering this suit an abuse of court process due to multiplicity of pending actions; referring to Umeh v. Iwu [2008] 8 NWLR (Pt. 1089) 225 at 243 - 244. The 5th defendant, therefore, urged the Court to terminate this suit in the light of the pendency of Suit No. CV/075/2021 pending before the Abuja High Court same not property discontinued before this present suit was filed.
20. In conclusion, the 5th defendant submitted that flowing from the jurisdictional issues of law raised above and arguments canvassed, this Court lacks the vires and jurisdiction to entertain this matter and so same should be struck out and/or dismissed with cost.
The Submissions of the Claimant in Opposition to the 5th Defendant’s Preliminary Objection
21. In replying to the submissions of the 5th defendant, the claimant adopted the three issues submitted by the 5th defendant.
22. On issue (1), the claimant submitted that the 5th defendant was served. That the 5th defendant’s argument on this issue, as to not being personally served or an order of substituted service obtained, is baseless is baseless for the singular fact that she alongside the other defendants have been represented by Osuagwu Ugochukwu, Esq, who filed a memorandum of appearance on 22 July 2021, and entered appearance for the defendants, including the 5th defendant. The claimant then asked: if the 5th defendant had not received the originating processes, who then briefed Osuagwu Ugochukwu, Esq who entered appearance on her behalf? That the claimant never served any process on the counsel. The processes were served on the 5th defendant. That the question that begs for an answer is, how then did the originating processes get to the counsel who has now entered appearance on behalf of the defendants, including the 5th defendant.
23. Furthermore, that ORDER 7, RULE I of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 provides thus:
any process or document required to be served on any person who is a party in a matter may be served as follows:
any process or document required to be served on any person who is a party in a matter may be served as follows:
(a) By handing a copy of the process or document to the person or to the person’s counsel; or
(b) By leaving a copy of the process or document at the person’s or the person’s counsel’s residence or place of doing business;
(c) by leaving a copy of the document or process at the person’s place of employment
(d) …………………………..
(e) …………………………..
That by this provision of the Rules of this Court, a parry to a suit can be served at their place of business.
24. To the claimant, it is worthy of note that nowhere in the Rules of this Court was it mentioned or contemplated that a party to a suit must be served personally. That the 5th defendant’s argument is totally misconstrued, and as such baseless. It is thus the claimant’s case that the 5th defendant was duly served in accordance with the Rules of this Court, urging the Court to so hold. That the case of Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd [1992] 5 NWLR (Pt. 244) 675 does not in any way give credence to this issue, urging the Court to hold that the 5th defendant has been duly served and this Court has inherent jurisdiction to entertain this suit, as service was effected on the 5th defendant by the bailiffs of this Court in accordance with the Rules. The claimant also urged the Court to discountenance the preliminary objection of the 5th defendant on this issue.
25. Regarding issue (2) i.e. whether the form of commencement of an action is enough to vitiate same, the claimant referred to ORDER 3, RULE 17(2) of the Rules of this Court, which confers on the Court the power to make the appropriate order, if in its opinion, a claimant’s case ought not to be determined on originating summons. That the Court has the jurisdiction to convert an originating summons to complaint before conducting the trial of the case. That Atago v. Nwuche [2013] 3 NWLR (Pt. 1341) 337 SC reiterated the effect of the form of commencement of action on competence of action, which is to simply order pleadings and not to strike out the suit, relying on Famfa Oil Ltd. v. A.G, Fed. [2003] 18 NWLR (Pt. 852) 453 and PDP v. Abubakar [2007] 3 NWLR (Pt. 1022) 515. That the defect in form of commencement of an action relates only to procedure and does not affect the competence of the suit, citing Chisco Int’l Ltd v. PMA Ltd [2016] 3 NWLR (Pt. l499) 249 and Ejealor & ors v. Gov of Imo State [2017] LPELR-42290(CA).
26. That the court shall not jettison a suit because it was initiated through a wrong form. It is taken as a mere irregularity that is not fatal to the jurisdiction of the court. Furthermore, the use of a wrong form in initiating the originating process in a suit is a mere procedural irregularity which can be cured. It does not affect the jurisdiction of the court to hear the suit, citing NELM Ltd v. Omotusi [2016] 17 NWLR (Pt. 1541) 314. That in the exercise of its powers as may be conferred by the provisions of the Rules, the Court may take into consideration the exigency of the matter and the interest of justice and equity, citing ORDER 5, RULE 5(4) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
27. The 5th defendant had argued that the Rules of this Court are mandatory, and cited some case law authorities. To the claimant, the said authorities are no longer acceptable/applicable in our Nigerian Courts, let alone the National Industrial Court which seeks to be flexible in order to accommodate litigants and decide their matter on the merit, rather than letting technicalities overshadow justice, citing ORDER 5, RULES 1 and 6(3) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. That the courts have long moved away from the position canvassed by the 5th defendant. That the 5th defendant even conceded to the fact that this Court has the inherent power to order pleadings.
28. The claimant continued that to urge the Court to drive away the claimant from the seat of justice on the ground of the form in which she brought her case as the 5th defendant, is grossly antithetical to the spirit of our laws and the current judicial attitude of enthroning substantial justice over technical justice. The claimant then urged the Court to direct the suit to proceed and that the matter be properly brought by the filing of pleadings (complaint) for proper determination of the dispute between the parties, as the Rules of this Court permits.
29. On issue (3) i.e. whether given the existence of Suit No. CV/075/2021 pending before an Abuja High Court between both parties and not shown to be properly discontinued prior to filing this suit, the instant suit is thereby an abuse of court process. To the claimant, a matter ceases to exist once notice of discontinuance is dully and validly filed. That Suit No: CV/075/2021 has been discontinued. That a plaintiff has an unqualified right to discontinue his matter before any court. And the claimant in this suit has discontinued Suit No: CV/075/2021.
30. The claimant went on that the 5th defendant made an issue of the fact that a notice of discontinuance is a public document and as such a photocopy of same cannot be admissible. That it is pertinent to note at this point that the notice of discontinuance has no evidential value at all to the issues between the parties brought before the Court for determination. That the purpose of attaching the notice of discontinuance is just to prove to this Court that the previous matter has been discontinued, and as such, there is no question of abuse of court process.
31. That assuming without conceding that the notice of discontinuance had any bearing whatsoever on the issues between the parties, and as such was of great significance to the determination of this matter, Order 5, Rule 6(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules permits the Court to regulate its procedure as it thinks fit in the interest of justice, being that this Court is a specialized court, and as such, the Court may depart from the Evidence Act where necessary.
32. Once again, that the courts have long moved away from the position as canvased by the 5th defendant that notice of discontinuance must be served on parties. That Suit No: CV/075/2021 has been discontinued, and the discontinuance of the previous is not in question as shall be shown by judicial authorities in the subsequent paragraphs. On the effect of filing a notice of discontinuance, that the Court of Appeal reiterated the claimant’s position that notice of discontinuance once filed at the Court, operates to terminate a matter, citing Esogwa & ors v. Nwosu [2020] LPELR-50610(CA), The Vessel "Saint Roland” & anor v. Adefemi Osinloye [1997] LPELR-3234(SC), Aderibigbe v. Akinyemi & ors [2019] LPELR-47550CA and Tailor & ors v. Balogun & ors [2012] LPELR-19673(CA). That Tailor went even further to state that it is firmly established that once a notice of discontinuance is filed at the registry of the Court where a matter is pending, same puts an end to the existence of the matter.
33. That in the instant case, the matter before the High Court was not even ripe for hearing. It was only mentioned once and the same counsel in this matter (Osuagwu Ugochukwu, Esq) appeared on the first and only date the matter was mentioned and announced his representation for the defendants. He never even filed a memorandum of appearance in the said CV/075/202l, let alone any court processes and/or pleadings. That nothing was filed by the defendants. The claimant then urged the Court to hold in her favour that Suit No: CV/075/2021 has been effectively discontinued, the notice of discontinuance having been filed at the High Court to that effect, and that the institution of this suit at the National Industrial Court is not an abuse of court process in any way.
34. In conclusion, the claimant referred to Nneji v. Chukwu [1988] 6 SCNJ 132, which held that it is undesirable to give effect to rules which will merely enable one party to score, not victory on the merit, but to technical knock-out at the expense of a hearing on the merits, and then urged the Court to dismiss the 5th defendant’s preliminary objection, order the conversion of the originating summons to complaint and direct parties to file and exchange pleadings and hear this matter on the merit in the interest of justice and equity as the claimant’s legal rights are at stake.
COURT’S DECISION ON THE PRELIMINARY OBJECTION
35. The 5th defendant’s preliminary objection is premised on three grounds: that there was no personal service of the originating processes on the 5th defendant; the suit was commenced vide an originating summons instead of by way of a complaint; and the suit is an abuse of court process because another suit (Suit No. CV/075/2021) between the parties is pending at the High Court of the Federal Capital Territory (FCT). I will take these grounds one after the other.
36. But first, on the face of the her preliminary objection, the 5th defendant described the claimant as “Plaintiff/Respondent”; and throughout her written address in support of the objection, she variously referred to the claimant as plaintiff. While this cannot be held or used against the claimant herself, yet this very fact immediately shows the 5th defendant’s counsel to be unfamiliar with the trappings of this Court especially in its character as a specialised Court. Nowhere in the Rules of this Court or even in its enabling laws is the word “plaintiff” used to describe the originator of a suit in this Court. The appropriate word used throughout is “claimant”. That the 5th defendant’s counsel chose to use the word “plaintiff” instead of “claimant” could only mean one thing — counsel is carrying over to this Court the hangover of his High Court practice.
37. And nothing typifies this fact than the first ground of the objection itself i.e. that there was no personal service on the 5th defendant, and no order for substituted service was obtained. Only a counsel used to the practice in the High Court will make this a ground of objection in this Court. If counsel had cared to check the Rules of this Court, he would have found that Order 7 of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017) makes novel and comprehensive rules on service of processes on litigants. See Akwaji Henry Omang v. Mr Sylvester Effefiom Nsa [2020] LPELR-50225(CA). Under the NICN Rules 2017, personal service is just one of several other methods of service and it is not mandatory or a prerequisite to other methods of service. There is no rule in this Court that personal service must first be attempted before some other form of service is used except “where there is failure of service by electronic means as envisaged under Order 7 Rule (1) - (7), (9), (10) and (11) of the said Rules”, as Omang v. Nsa (supra) held. If counsel had taken time to read through the Rules of this Court, he would not have wasted the time of this Court with a ground of objection such as this. I am satisfied that the 5th defendant was served and so that ground of objection is rejected and accordingly dismissed.
38. If counsel to the 5th defendant carried the hangover of his High Court practice to this Court, I do not know what to make of his submission in respect of issue (2) i.e. that the claimant did not properly commence this suit by using originating summons in the face of the contentious facts deposed to by her in her affidavit in support of the originating summons. Counsel then relied on section 3(1) of the NIC Rules 2007 and Order 5A(1) of same Rules as inserted by the National Industrial Court (NICN) Practice Direction 2012. These are Rules that have been repealed and replaced by the current NICN Rules 2017. For counsel to rely on outdated and repealed Rules of Court is something that I cannot fathom. Has legal practice degenerated to this low? The surprising thing is that the 5th defendant brought her preliminary objection “pursuant to Order 18 Rule 2(2) of National Industrial Court of Nigeria Civil Procedure Rule 2017”. So, counsel cannot claim ignorance of the NICN Rules 2017. If counsel thus knew that the 2017 Rules exist, how come he did not know that the 2007 Rules and the 2012 Practice Directions have been repealed?
39. The argument of the 5th defendant that there are contentious facts in the instant suit for which originating summons is an inappropriate mode of commencing this suit (and so the suit should be struck out) misses the law. The 5th defendant had submitted that the law is that where the court finds that an originating summons should not have been used, as in the instant case, it ought to strike out the case. This is not the law. The law is that pleadings should be ordered. His Lordship Suleiman Galadima, JSC delivering the lead judgment in Suleiman Atago v. Mr Ibiso Nwuche & ors [2012] LPELR-19656(SC) explained the correct position of the law in these words:
The General Principle of Law as I understand it is that where the Court comes to the conclusion that the action ought not to have been commenced by originating summons, it shall proceed to order pleadings. Where however nothing will be achieved by an order for exchange of pleadings, an order for pleadings will not be made. This is the current judicial thinking as stated by the Supreme Court in Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) pg. 340 at 347.
40. So as the 5th defendant can see, Emezi v. Osuagwu, which she cited and relied on, comes in only where nothing will be achieved by an order for exchange of pleadings — in which event, an order of pleading will not be made. In any event, the Rules of this Court are quite specific that “where in the opinion of the Court, a suit commenced by Originating Summons raises substantial issues and dispute of facts, the Court shall not strike out the matter, but may order its conversion to Complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the Rules of the Court governing trial”. See Order 3 Rule 17(2) of the NICN Rules 2017.
41. The concurring judgment of Akintan, JSC in Oba Adegboyega Osunbade Adeyelu II & ors v. Oba Jimoh Oladunni Oyewunmi & ors [2007] LPELR-167(SC) confirms this as the settled law. In His Lordship’s words:
…The law is settled that where there are disputed facts, such actions could not be initiated by an originating summons.
Similarly, I believe and hold that the proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case.
See also Sylvanus Eze v. University of Jos [2017] LPELR-42345(SC), where His Lordship Rhodes-Vivour, JSC delivering the lead ruling said: “So once a suit has been filed by Originating Summons and it becomes obvious that facts are in dispute or the proceedings are likely to be hostile a Writ of Summons would be ordered”.
42. The 5th defendant gave paragraphs 13, 14, 18, 19, 20, 22, 24, 28, 30, 34, 36, 37, 42 and 44 of the affidavit in support of the originating summons as the paragraphs containing contentious and disputable facts requiring oral testimony. I looked through the averments in these paragraphs. While it is true that they are statements of facts that would require clarification if they are denied by the defendants, they are, however, not averments that go to the substance of the questions posed by the claimant for interpretation. It must be noted, as held by this Court in Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/259/2013, the judgment for which was delivered on 20th May 2019, that:
…The interpretation of documents is not the function of a witness. It is a function of law meant for the Court.
43. At the risk of repetition, a look at the questions the claimants posed for determination will reveal that:
- Question (1) is whether, given Articles 3, 5, 6 and 7 of the Constitution of the 1st and 2nd defendant, the claimant can be disqualified from contesting the 2020 elections “on the grounds that her certificate in Advanced Diploma in Journalism is not recognised and that the Claimant lacks of the requisite 7-year qualification to contest the post of Chairperson of the 1st Defendant”.
- Question (2) is whether given Article 7 of the Constitution of the 1st and 2nd Defendants, the claimant was appropriately suspended having not been afforded the opportunity to be heard.
- If questions (1) and (2) are answered in her favour, question (3) then seeks her reinstatement as “Chairperson of the Nigeria Association of Women journalists [NAWOJ], pending when a valid election is conducted”.
44. I am satisfied that this suit was appropriately commenced using the originating summons procedure. Accordingly, I hold that the suit is competent; as such, this Court has jurisdiction over it.
45. The third issue/ground of objection by the 5th defendant is that the instant suit is an abuse of court process given the existence at the Abuja High Court of Suit No. CV/075/2021, which suit is between the same parties and same issues as in the instant case. In arguing this ground, the 5th defendant complained that the notice of discontinuance filed by the claimant in Suit No. CV/075/2021 is a photocopy that is not even certified, it being a public document. In answer, the claimant stated that Suit No. CV/075/2021 has been discontinued, referring to Exhibit AK 11 attached to the affidavit in support of the originating summons. Exhibit AK 11 is the notice of discontinuance brought pursuant to Order 24 Rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules. To the 5th defendant, merely filing a notice of discontinuance does not amount to discontinuance.
46. In Chief Ufikairo Monday Edet v. INEC & ors [2011] LPELR-8109(SC), the Supreme Court held thus:
I am as well in support of the argument that discontinuance…cannot be a defence to a subsequent action for the same or substantially the same cause of action.
……..
Withdrawal or discontinuance of an action connotes the termination or removal of that action from the cause list of that Court. It exists no more before that Court. It has slumped down, fainted and ultimately died, only waiting for resurrection where there will be one.
47. Earlier in The Vessel “Saint Roland”" & anor v. Adefemi Osinloye [1997] LPELR-3234(SC), the Supreme Court was emphatic in holding thus:
I think it ought to be noted that a Notice Discontinuance once duly and validly filed cannot be recalled for the suit ceases to exist the moment it is effectively discontinued. See Obienu v. Orizu and others (1972) 2 ECSLR 606.
48. What I gather from these case law authorities is that the filing of a notice of discontinuance brings to an end the suit in respect of which the notice of discontinuance is filed. The entry on the notice of discontinuance (Exhibit AK 11) shows that it was filed on 1 April 2021. The instant suit was filed on 5 July 2021. This being so, I am satisfied that Exhibit AK 11 brought to an end Suit No. CV/075/2021; as such, the instant suit is not an abuse of court process. I so hold.
49. On the whole, there is no merit whatsoever in the preliminary objection of the 5th defendant. It fails and so is hereby dismissed.
50. I now turn to the merit of the originating summons.
THE ORIGINATING SUMMONS
The Submissions of the Claimant in Support of the Originating Summons
51. The claimant started with what she termed as brief statement of facts. To her, on 23 November 2020, pursuant to her intention to seek nomination as the candidate for election into the office of the Chairperson of the FCT Chapter of NAWOJ, she bought Nomination Forms. The said forms were duly filled and returned to the 1st defendant. She was screened and cleared to participate in the election to be held on 12/12/2020.
52. On 14 and 15 November 2020, NAWOJ held a delegate conference in Minna, Niger State, where there were four candidates contesting for the office of President of NAWOJ. That as the Chairman of NAWOJ FCT Chapter, she was directed by the NUJ Chairman of the FCT Council, Comrade Emmanuel Ogbeche to campaign and vote for Aisha Ibrahim, a Presidential candidate from Borno State. Unknown to her, the NUJ President (Chris Isiguzo), and Chairman of the FCT Council of NUJ (Emmanuel Ogbeche) were playing double games, whereby the President and the Chairman suddenly openly supported Ladi Bala, another Presidential Candidate in what appeared to be a sharp deviation from the earlier plan to support Aisha Ibrahim.
53. That before the election held in Minna, the claimant, being the Chairperson of the FCT Chapter of NAWOJ, held a congress where the five-man credential committee was constituted with the mandate to screen candidates for the elections to be held on 12/12/2020. That she bought Nomination Form and expressed interest to contest for election into the office of the Chairperson of the FCT Chapter of NAWOJ and was duly screened and cleared to contest for the said office of the Chairperson. That a list of candidates that were cleared was posted on the Notice Board of the FCT Chapter of NAWOJ, wherein one Rebecca Bolanle was disqualified for not having requisite years of experience and Chinasa Udeze Millicent was disqualified for not meeting 50% attendance of monthly congress.
54. That after picking the Nomination Form, she was told by the NUJ President, Chris Isiguzo, and the newly elected NAWOJ President, Ladi Bala, that nobody has ever contested two terms in NAWOJ FCT Chapter. They threatened to remove her from office and to deal with her. That both Chris Isiguzo and Ladi Bala accused her of not supporting Ladi Bala in the presidential elections held in Minna and they vowed to deal with her. After the threat by Chris Isiguzo, Emmanuel Ogbeche and Ladi Bala, the claimant was invited by the Credentials Committee to appear before them to defend allegations contained in a petition made by Gloria Essien of Voice of Nigeria, which the claimant did. After defending the petition written by Gloria Essien, the claimant was shocked after about three days to see that the Secretary of the Credentials Committee had pasted a Notice of Disqualification signed by Ruth Tene (The Secretary of the Credentials Committee) and addressed to the claimant. That as the incumbent Chairperson of the FCT Chapter of NOWAJ, she has gone through the exact same process of screening before she was elected the Chairperson of the FCT Chapter of NOWAJ by majority votes cast at the election; and she was not disqualified that first time she contested.
55. The claimant continued that her certificate is recognized as it was awarded by the Times Journalism Institute, Nigeria’s first Journalism Institute and there is no such law that precludes her from contesting the said elections on the ground that she converted from the graphics unit of the Federal Ministry of Information to an Information Officer in the same Ministry, which does not in any affect the fact that she has accumulated more than 20 years experience.
56. That having bought nomination forms and was cleared to contest for the office of the Chairperson of the FCT Chapter of NOWAJ for the second time, the 1st defendant does not have the right to unjustly disqualify her from contesting or participating in the purported elections held on the 12/12/2020. That he disqualification came just a few days to the said elections that took place on 12/12/2020, and despite the short notice before the disqualification, she still exhausted the internal mechanism, and only resorted to court when she found out that they were being bias, and were still going on with the elections, in spite of her complaints about the unjust manner in which she was disqualified.
57. That when she and her supporters saw the disqualification notice, they appealed to the President of the 1st and 2nd defendants against the claimant’s disqualification and the claimant wrote to the President of the 1st defendant appealing same but to no avail. That the claimant appealed to various members and officers of the 1st and 2nd defendants to no avail.
58. Aggrieved, the claimant through her counsel approached the High Court of the Federal Capital Territory in error, for the determination of the issues between her and the defendants. The matter was not heard, but the 1st – 4th defendants were represented by their counsel in the person of Barrister Osuagwu on March 8, 2021 when the matter first came up, and their counsel craved the court’s indulgence to adjourn so that parties can attempt to resolve out of court. The claimant was thereafter wrongly and maliciously suspended without any reason whatsoever, on the same day that the High Court of the Federal Capital Territory asked parties to make an attempt at settling out of court (March 8, 2021). That her suspension came despite the fact that she had exhausted the internal mechanism for resolution of the issues between her and the defendants to no avail, before going to court.
59. To the claimant, the 1st and 2nd defendants acted in gross violation of the constitutionally guaranteed rights of the claimant and in violation of the constitution of the 1st and 2nd defendants. That she has not violated any aspect of the 1st and 2nd defendants’ constitution to warrant her being disqualified, being threatened to be removed from office, or being suspended. That this Court is empowered to stop the defendants from embarking on any act of lawlessness targeted at undermining the claimant's right, the mandate of the members of the association or truncating the claimant’s tenure in office, hence this action is brought to stop the defendants from their arbitrary exercise of powers.
60. The claimant’s issues for determination are couched in terms of the questions posed for determination. Accordingly, the issues for determination are:
(1) Whether upon a lucid interpretation of the clear provisions sections 3, 5, 6 and 7 of the constitution of the 1st and 2nd Defendant, under which the rights of a person become a member to contest elections or be disciplined by the 1st and/or 2nd Defendant(s) is specified and guaranteed, the 1st and/or 2nd Defendant(s) can disqualify the Claimant from contesting the 2020 Elections purportedly held by the Nigeria Association of Women Journalists (on 12/12/2020), on the grounds that her certificate in Advanced Diploma in Journalism is not recognized and that the Claimant lacks the requisite 7-year qualification to contest the post of Chairperson of the 1st Defendant, despite the fact that Nigeria Union of journalists and Nigeria Association of Women Journalists both recognize a Certificate in Advanced Diploma in Journalism and the Claimant has practiced journalism for more than 20 years.
(2) Whether upon interpretation of Article 7 of the Constitution of the 1st and 2nd Defendants, under which a member of the Union can be suspended, the 2nd Defendant was right to have arbitrarily suspended the Claimant having not afforded her the opportunity to be heard, even though she exhausted the internal mechanism for dispute resolution before going to court, which mechanism was clearly bias against her as they never responded to her appeals.
(3) In the circumstance of affirmative answer to questions 1 and 2 above, whether the Claimant is not entitled to be reinstated as the Chairperson of the Nigeria Association of Women Journalists [NAWOJ], pending when a valid election is conducted.
61. On issue (1), the claimant submitted that the defendants having made laws to regulate their affairs must be bound by the dictates of the laws so made by them. That there is no gain saying the fact that the activities of the defendants are regulated by the association’s constitution (in this case, the Nigeria Union of Journalist (NUJ) Constitution which has been ratified and adopted by the Nigeria Association of Women Journalists), which clearly provides for modes of becoming a member, disqualifying and disciplining of members. That by the provision of the 1st and 2nd defendants’ constitution, the claimant is qualified to contest for the office of the Chairperson of NAWOJ, as she has the requisite educational qualification.
62. On Qualification to be a Member of NAWOJ/NUJ. The claimant submitted that NAWOJ does not have a constitution, and as such the association uses the NUJ constitution, referring to Article 9(1)(b) of the NUJ constitution, which states thus:
The Union shall take notice and deem Nigeria Association of Women Journalists (NAWOJ), the Sports Writers Association of Nigeria (SWAN), and the Nigeria Guild of Editors (NGE), etc as its affiliates (the emphasis is the claimant’s).
63. That from the foregoing, the constitution of the NUJ provides for condition under which one can become a member of both NAWOJ and NUJ. Membership of NUJ automatically makes you a member of NAWOJ if you are a woman. Also, the requirement to be qualified as a member is the same requirement that qualifies you to contest for the Chairmanship position of the FCT Chapter of NAWOJ. This is provided for in Article 3(2)(a) of the NUJ constitution. Article 3(1)(a), 3(2)(a), 3(3)(c) and 3(3)(d) of the 1st and 2nd defendants’ constitution reads:
3(1)(a) A person shall not be a member of the Union, except if registered by the National Secretariat of the Union on the recommendation of the state council.
3(2)(a) In addition to the provision in Article 3(1), a person to be so qualified shall also possess a minimum of Diploma and cognate experience in Journalism or Mass Communication obtained from a recognized institution, with a working experience of not less than 12 months in a recognized, media establishment.
3(3)(c) A journalist who moves out of the profession after seven years of active practice shall be accorded his length of service period in the profession, if such a person decides to return to journalism practice.
3(3)(d) To be registered as a professional journalist, a member should have satisfied the provisions of Article 3(1), and (2) of this constitution. In addition, each applicant shall be expected to complete an application form and swear to an oath of allegiance of the Constitution and Code of Professional and Ethical Conduct.
64. To the claimant, by Article 3(2)(a) of the constitution, to qualify to be a member of the union/association, what is required is the minimum of a diploma and a cognate experience in journalism or Mass Communication from a recognized institution with a working experience of not less than 12 months in a recognized media establishment. That the claimant has an advanced diploma in journalism awarded by the Times Journalism Institute a highly recognized institution in the field of journalism.
65. That it is interesting to note that contrary to the position of the defendants, that the claimant converted from the graphics unit of the Federal Ministry of information to an Information Officer in the same Ministry, and as such, does not have requisite 7 year experience to contest for the position of Chairman of the 1st defendant, Article 3(3)(c) of the NUJ Constitution reproduced above states that a journalist who moves out of the profession after seven 7 years of active service and decides to return to journalism practice shall be accorded his length of service years in the profession. That suffice it is to say that Article 3(3)(c) in effect states that once you have actively practiced journalism for 7 years, and you leave the profession to do something else unrelated to journalism, whenever such a person decides to return to journalism practice, in considering the number of years such a person has practiced, the initial 7 years together with the other number of years spent out of the profession shall be considered. So, assuming the person spends initial 7 years in active practice and spends another 3 years doing something outside journalism, in computing the number of years such a person would be said to have practiced, the Article states that such a person shall be said to have practiced for 10 years. That this narration is assuming but not conceding that the claimant left journalism practice. That in the instant case, the claimant is still actively in journalism practice and has so been for the past 20 years.
66. The claimant then submitted that there is nothing in the NUJ constitution to support the defendants’ claims that the claimant lacks the requisite 7 year experience to contest for the position of Chairman of the 1st defendant because she converted from the graphics unit of the Federal Ministry of Information to an Information Officer in the same Ministry (which is still in the field of journalism), and even if it was the case that she left journalism practice by so doing, she will still have the requisite 7 year experience to run for the office of Chairman of the 1st defendant as long as she had put in 7 years of active service in the profession before doing so.
67. On Eligibility as Delegate/Contestant. To the claimant, Article 5(B)(6) of the constitution prescribes the condition for eligibility as a delegate thus:
5(B)(6) To be eligible as a delegate, a member of the union must be in good financial standing and must have been involved in the affairs of the union and chapel and state council levels for five consecutive years preceding the Delegates Conference.
That the Credentials Committee is mandated by Article 5(B)(9)(c) of the constitution of the NUJ to act independently of the National President, National Secretary and any other National or State officer of the union. That this was not the case when the claimant was disqualified. That it is obvious that the disqualification of the claimant is in fulfillment of the threat by the 3rd defendant who happens to be the Chairman of the NUJ FCT Chapter. That this is unconstitutional and must not be allowed to stand.
68. The claimant went on that Article 6(7)(b) states that to contest for State Council offices (State Chapter in the case of NAWOJ), such candidate must have been in active service for seven years. Article 6(7)(b) of the NUJ Constitution states thus:
For the State Council offices, such candidates must have been in active service for seven years, and be in good financial standing and must have been officers in Chapel.
That the claimant in the instant case was vying for the office of the Chairman of the FCT Chapter of NAWOJ, which is the equivalent of a State Council office as it is called by the NUJ. She has been in active practice for over 20 years, contrary to one of the reasons why she was disqualified by the Credential Committee of NAWOJ (the 1st defendant).
69. The above provisions notwithstanding, the claimant submitted that the defendants have purportedly removed her as the Chairman of NAWOJ and purportedly conducted an election wherein the 5th defendant emerged unopposed, as Chairman of NAWOJ. It is in the light of this state of affairs that the claimant brought this action asking for determination of the questions set out in the originating summons and upon favourable answers seeks the reliefs contained therein.
70. To the claimant, in the face of the extant provision of the 1st and 2nd defendants’ constitution reproduced above, one wonders the justification for the show of force that is being displayed by the defendants in its apparent attempt at removing the claimant from her position as Chairman of NAWOJ at all cost. That there is no justification whatsoever for such brazen lawlessness. That the 1st and 2nd defendants are duty bound to uphold the provisions of their constitution and to do otherwise as in this case is nothing but a gross violation of the constitution of the union/association. It is the claimant’s submission that the internal democracy of unions/associations is directly related to the democratic emergence of office holders including the Chairman of the 1st defendant. In effect, the Nigeria Association of Women Journalists and the Nigeria Union of Journalists MUST comply with democratic norms and procedures in the process of electing office holders within their Association. Accordingly, that the defendants cannot disqualify the claimant like they intend to do, when in fact the claimant has the requisite academic qualification and experience required by the constitution of the 1st and 2nd defendants.
71. To the claimant, she has a valid and existing legal right to participate in the scheduled election into the post of Chairperson of the FCT Chapter of the Nigeria Association of Women Journalists [NAWOJ] having bought nomination forms and was cleared to contest for the office of the Chairperson of the FCT Chapter of NOWAJ for the second time and due to the fact that her certificate is recognized as it was awarded by the Times Journalism Institute, Nigeria's first Journalism Institute, and there is no such law that precludes the claimant from contesting the said elections on the ground that she converted from the graphics unit of the Federal Ministry of Information to an Information Officer in the same Ministry which does not in any way affect the fact that she has accumulated more than 20 years’ experience. Thus, that she has satisfied every aspect of the constitution of the NUJ, especially Articles 3, 5 and 6 and is eligible to contest for office. She then urged the Court to resolve this issue in her favour.
72. The claimant took issues (2) and (3) together i.e. whether she can be suspended, and whether she is entitled to be reinstated pending when a valid election is conducted. The claimant referred to Article 7(2) of the constitution of the Nigeria Union of Journalists, which provides:
2. Procedure
(i) Where a complaint has been made against a particular Journalist, the Journalist shall be notified of such a complaint in writing and given at least twenty-one days notice within which he shall prepare his defence and appear before the committee.
(ii) ……………………………………………………………
(iii) ……………………………………………………………
(iv) ……………………………………………………………
(v) Members who resort to legal action against the Union without exhausting all internal mechanisms for resolving disputes shall automatically be suspended from the Union.
PENALTY:
(a) When a journalist is found liable by the committee for professional and or ethical misconduct, the committee shall recommend to NEC to reprimand, or suspend such a member from the Union for a period not exceeding twelve 12 months.
(b) The guilty Journalist shall however, have the right to appeal to the Appellate Ethics Disciplinary Committee within fourteen days of the findings of the State Ethics Committee.
73. From the foregoing, that the defendants acted arbitrarily when they ignored the fact that this matter was already in court and went ahead, in violation of the NUJ constitution to suspend the claimant without any written notice or hearing. Also, the claimant was not given time at all to defend herself, whereas the NUJ constitution stipulates that such a person should be given twenty-one days’ notice to defend herself. That the 1st 2nd and 3rd defendants are in the constant habit of arbitrarily suspending members without recourse to the constitution of the NUJ. To the claimant, even though under very tight timeframe, she appealed to the 1st, 2nd and 3rd defendants to no avail, before embarking on her journey to seek justice from the courts, referring to Exhibit AK5 & AK6 respectively, copies of her appeals to the President of NAWOJ (1st defendant) and the President of the Nigeria Union of Journalists (2nd defendant) against the claimant’s disqualification. That Article 7(2) of the said constitution also stipulates penalty for a journalist found liable of any ethical or professional misconduct to be from 0 - 12 months. That the suspension handed down to the claimant did not only fail to spell out the offence for which the claimant is being suspended for, it also does not even stipulate the duration of the said suspension. That this is not in consonance with the principle of fair hearing enshrined under the 1999 Constitution.
74. On the Propriety of Otherwise of Article 7(2)(v) of the constitution of the NUJ. To the claimant, assuming but not conceding that the claimant violated Article 7(2)(v) of the constitution of the Nigeria Union of Journalists, which purports to restrain members of the union from going to court until internal mechanisms for resolving disputes are exhausted and also purports to give the union powers to suspend members automatically, Elufioye v. Halilu [1993] 6 NWLR (Pt. 301) 570 SC at 595 defined the relationship between a member of a trade union and the union thus:
The relationship between a member of a Trade Union and the Union itself is contractual, and the terms of the contract are to be found in the rules of the Union. A member of a trade union has in general the right to take proceedings to enforce compliance with the Union’s own rules in relation to matters such as election of officers and other internal regulations (the emphasis is the claimant’s).
75. The claimant went on that courts should guard and preserve their jurisdiction very jealously. That the 1st and 2nd defendants have in the past twisted and applied the provisions of Article 7(2)(v) of the constitution of the NUJ, as they seek to do now, in a bid to deprive members of the union of their right of access to the court, and to arbitrarily and unjustifiably suspend and punish members who oppose office holders within the union. That the said NUJ constitution did not define what amounts to “exhausting all internal mechanisms” for resolving disputes. As shown in Exhibits AK5 and AK6 (copies of the claimant’s appeals to the President of NAWOJ, 1st defendant, and the President of the Nigeria Union of Journalists, 2nd defendant, against the claimant's disqualification), the claimant did all that was within her power to appeal her disqualification to no avail. The disqualification was done after she was initially screened and cleared to contest the said elections, and was calculated and executed just a few days to the elections to frustrate her efforts at exhausting the “internal mechanisms” in order that Article 7(2)(v) may be invoked if she ever approaches the courts.
76. From the foregoing, that the Supreme Court has even held that a member of a trade union has the right to take proceedings to enforce compliance with the union’s own rules in relation to matters such as election of officers and other internal regulations as in the instant case, urging the Court to so hold, in resolving this issue in favour of the claimant.
77. When the law provides a mode of doing a thing, only that mode must be followed. The claimant went on that the reign of impunity that has bedeviled our democratic practice in recent times calls for judicial intervention hence the Court should save even unions such as the Nigeria Union of Journalists from the stranglehold of people who seek to occupy political offices at every level, and who pride themselves in total disregard for the due process of law. That the law is now set in stone that once a procedure is provided for the doing of an act regulated by law, only such procedure and no other must be followed to the later. In other words, once the law prescribes a specific mode for the performance of an act regulated by law, only that mode and none other is permissible, citing Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 429 SC, Okpalauzuegbu v. Ezemenari [2011] 14 NWLR (Pt. 1268) 492 at 524 - 525 and Abubakar v. Nasamu (No. 2) [2012] 17 NWLR (Pt. 1330) 407 SC at 590.
78. That the notice of disqualification handed down to the claimant defined the reason for her disqualification, which is now being challenged before this Court. The claimant then urged the Court to hold that such notices no matter how authoritarian and how couched must contain the reason for disqualification and/or suspension, and must also contain the duration for such suspension as the constitution of the NUJ prescribes a maximum period of 12 months. That it will, therefore, before (sic) unjust and in defiance of the NUJ constitution to suspend a member indefinitely as the 2nd defendant has done in Exhibit AK10.
79. It is the claimant’s submission that the 1st, 2nd, 3rd and 4th defendants are bereft of and power to remove the claimant from office or suspend her arbitrarily as they did, in spite of the fact that she had contested the same position in the past and one (sic) on the same credentials and qualification, and is presently so qualified to contest for the same position, and also considering the fact that she had, in compliance with the constitution of the NUJ, appealed her suspension to the 1st, 2nd and 3rd defendants to no avail.
80. The claimant urged the Court to also take into consideration the timing of her suspension, juxtaposed with the event of 12/12/2020 (being the election into the office of the Chairperson of NAWOJ), a position which the claimant held at the time of her disqualification, and was vying to be re-elected into. That suffice it to say that she was disqualified just a few days to the elections being complained about with the calculated move to frustrate her compliance with Article 7 of the NUJ constitution, which stipulates that internal mechanisms must be exhausted before resorting to courts. That despite this calculated move by the defendants, she was able to appeal to the 1st and 2nd defendants, and upon realizing that the aery “internal mechanisms” which she was appealing to were set up, mq.de up of, and supported by the some people perpetrating the injustice she was complaining about, she approached the courts.
81. That in the instant case, the defendants having failed to comply with the disciplinary procedure set out in the constitution of the NUJ (as outlined above), “the arbitrary suspension of the served on the claimant” is null and void and of no effect whatsoever. Accordingly, that the claimant in the circumstance is entitled to all the reliefs sought in this case, urging the Court to grant the reliefs sought herein and put an end to the regime of impunity that has bedeviled the Nigeria Union of Journalists and its associated unions, a regime that has become notorious for its unruly and hasty decisions. The claimant concluded by urging the Court to grant the reliefs she seeks in the interest of justice.
The Submissions of the 1st to 3rd Defendants in Opposition to the Originating Summons
82. Counsel for the 1st to 3rd defendants had filed the defence processes on behalf of the 1st to 4th defendants. But the 4th defendant appeared with a separate legal representation who filed defence processes separately on behalf of the 4th defendant. Though counsel for the 1st to 3rd defendants objected to this, this Court at its sittings of 12 January 2022 and 2 February 2022 recognised the separate legal representation of the 4th defendant and the defence processes filed in that respect. And so all the processes filed on behalf of the 1st to 4th defendants are now read as filed on behalf of only the 1st to 3rd defendants. Indeed all references to 1st to 4th defendants in the processes will be read as 1st to 3rd defendants. And this is reflected as such in this judgment.
83. The 1st to 3rd defendants submitted two issues for determination, namely:
(1) Whether plaintiff was validly and lawfully disqualified by the 1st and 3rd defendants after plaintiff failed to effectively defend petitions written against her brought before the 4th defendant.
(2) Whether Article 7(2), which provides that members who resort to legal action against the union without exhausting all internal mechanisms for resolving dispute shall automatically be suspended from the union, stipulates that plaintiff must be heard before the section in the article 7 can come into force.
84. On issue (1), the 1st to 3rd defendants submitted that the plaintiff’s disqualification is well detailed in Exhibit AK 4 based on Petitions 1 and 3. That Petition 1 in Exhibit AK 4 clearly shows that the plaintiff did not meet the requirement in Article 6(7) of the NUJ constitution. Article 6(7)(b) states:
For the state council offices, such candidates must have been in active service for seven years and be in good financial standing and must have been officers in a Chapel.
That the plaintiff in her affidavit failed to state which office she occupied in a chapel. No evidence was furnished that she was in any chapel, let alone being an officer in a Chapel.
85. The 1st to 3rd defendants went on that the plaintiff by virtue of Exhibit NUJ 1B became a practicing journalist upon her conversion from Arts production (a non-journalism portfolio) to Assistant Executive Officer (information) (a journalism portfolio) in 2015, which clearly shows that as at December 2020, the plaintiff was only in active practice of journalism for FIVE (5) years and not SEVEN (7) years.
86. That it should be noted that the plaintiff when requested to produce her letter of employment, which she failed to attach in her nomination form, failed to produce it before the Credentials Committee and no explanation was given by her for the non-production. The question then is: is the Credentials Committee right to disqualify the plaintiff having failed to present her letter of employment upon request or not? The 1st to 3rd defendants answered in the affirmative.
87. On Petition No. 3, the plaintiff was accused of not having the requisite academic credentials, thus questioning her membership of the union. That the plaintiff was accused of amongst others, of not having evidence of Lower Diploma in journalism which should precede an Advance Diploma. The Credentials Committee hence requested the plaintiff to produce evidence of Lower Diploma considering that the plaintiff failed her SSCE. The plaintiff failed again to furnish the Committee with her Lower Diploma certificate. Coupled with the fact that the plaintiff’s membership of the union as per the ID card i.e. Exhibit AK1 expired on 06/10/2020 and which membership she has not renewed, all casted doubt on the membership status of the plaintiff and thus was found wanting in meeting Article 3 requirement of the union's constitution. That the plaintiff having failed to prove she met requirement of Articles 6(7)(b) and Articles l, 2 and 3 of the union's constitution, was validly and lawfully disqualified by the 1st and 4th defendants.
88. For issue (2), that the question or issue is whether in executing Article 7(2) of the NUJ constitution, the plaintiff who dragged the union to court without first exhausting all internal mechanisms of the union constitution is entitled to be heard first before she can be suspended by the 2nd defendant. Article 7(2) of the constitution states: “members resort to legal action against the union without exhausting all internal mechanisms for resolving disputes shall automatically be suspended by the union”.
89. That assuming without conceding that the plaintiff is a member of the union, the question is whether she is bound by the provisions of Article 7(2) no matter how draconian it may be. That the answer is in the affirmative. The plaintiff cannot pick and choose which sections or articles of the union constitution she is to be bound with constitutionally. That having subscribed to the union’s constitution, the plaintiff cannot now claim the union’s constitution is draconian simply because it’s her turn to be bitten by termite.
90. That Article 7(2) is an automatic provision which comes into effect with or without Exhibit AK10. Article 7(2) never envisaged a hearing before its implementation. Besides, what was issued the plaintiff was a mere ‘suspension’, which is not permanent and which matter will be referred to the NEC of the union for further consideration. The 1st to 3rd defendant then referred this Court to the decision of “Justice P. O. Affem” in Ejumetowo Anthony Asuotu v. University of Abuja unreported Suit No. FCT/HC/CV/0647/2018 as authority for the need to exhaust all internal dispute resolution mechanisms in terms of section 19(7) of the University of Abuja Act. Also referred to was Chinwo v. Owhonda [2008] 3 NWLR (Pt. 1074) 341 CA at 360, where it was held that court has no jurisdiction to set aside or change a decision made by members of a voluntary association, hence a member of a union or political party is bound by the provision of its constitution or bye laws no matter how draconian it may be; and alleged infringement of rights can only be resolved by a majority decision of members. In other words, wrongs done to a voluntary association or disputes arising from a debate should be resolved by the majority decision of the voluntary club or association. The 1st to 3rd defendants also referred to Ibrahim v. Gaye [2002] 13 NWLR (Pt. 784) 247 as authority for the proposition that domestic affairs of voluntary organizations like lawyers, journalists and political parties fall outside the perimeters within which the court can interfere except where crime is committed.
91. Internal/Domestic Affairs of Associations and Courts’ Jurisdiction. It is the submission of the 1st to 3rd defendants that where it is established that an action is premature, the Court lacks jurisdiction to adjudicate on the matter, relying on University of Ilorin v. Oluwadare [2006] 14 NWLR (Pt. 1000) 751 SC at 773, where it was held that when a litigant prematurely takes issues belonging to the domestic affairs to the arena of litigation, the Court lacks jurisdiction for the incompetence of the suit. Also referred to was Akintemi v. Pro. C. A. Onwumechili & ors [1985] All NLR 94. That the constitution of the 1st defendant binds all members and the 1st defendant can only be governed in accordance with the provisions of the said constitution. That having brought issues of domestic affairs of the 1st defendant to the Court without first exhausting the domestic remedies, the action is incompetent and the incompetence affects the jurisdiction of the Court to adjudicate on same, citing Madukolu v. Nkemdilim [1962] NSCC 374 at 379 - 380.
92. That it is settled that where a statute provides for dispute resolution before resort to litigation, failure to exhaust those remedies is a bar to litigation and puts the jurisdiction of the Court on hold, citing Attorney General of Kwara State & anor v. Alhaji Saka Adeyemo [2017] All FWLR (Pt. 868) 610, Eguamwense v. Amaghizemwen [1993] 9 NWLR (Pt. 325) 1, Chief Israel Aribisala & ors v. Talabi Ogunyemi & 2 ors [2005] All NWLR (Pt. 252) 451 and L. O. Owoseni v. Joshua lbiowotisi Faloye & anor [2005]14 NWLR (Pt. 946) 719.
93. In conclusion, the 1st to 3rd defendants submitted that the plaintiff’s suit is liable to be STRUCK OUT WITH COST as she has not exhausted all internal remedies provided for in the union’s constitution before resorting to litigation.
The Claimant’s Reply on Points of Law
94. In replying on points of law, the claimant started off by asserting that the 1st to 3rd defendants in their counter-affidavit and written address failed to respond to some salient points of law canvassed by the claimant. Instead, they raised and misapplied certain issues of law thus necessitating this reply. That in replying, the claimant will address first the issues of law to which the defendants offered no response whatsoever.
95. Issues raised by the Claimant in the Originating Summons that were not responded to. These are:
(i) Paragraph 41 of the affidavit in support of the originating summons was not denied so it is deemed admitted.
(ii) The defendants said nothing in response to paragraph 4.11 of the claimant’s written address in support of the originating summons to the effect that Article 5(B)(6) of the NUJ constitution prescribes the condition for eligibility as a delegate.
(iii) In paragraph 4.08 of her written address in support of the originating summons, the claimant argued that Article 3(3)(c) of the NUJ constitution states that once a member has actively practiced journalism for 7 years and leaves the profession to do something else unrelated to journalism, whenever such a person decides to return to journalism practice, in considering the number of years such a person has practiced, the initial 7 years together with the other number of years spent out of the profession shall be considered. The 1st to 3rd defendants failed to respond to or join issues with the submissions.
(iv) At paragraphs 4.19 of her written address in support of the originating summons, the claimant argued that she has a valid and existing legal right, to participate in the scheduled election into the post of Chairperson of the FCT Chapter of the 1st defendant (NAWOJ) having bought nomination forms and was cleared to contest for the second time and due to the fact that her certificate is recognized as it was awarded by the Times Journalism Institute, Nigeria’s first Journalism Institute, and there is no such law that precludes the claimant from contesting the said elections on the ground that she converted from graphics unit of the Federal Ministry of Information to an Information Officer in the same Ministry which does not affect the fact that she has accumulated more than 20 years’ experience. The 1st to 3rd defendants failed to respond or join issues with the said submissions.
(v) In paragraph 5.02 of her written address in support of the originating summons, the claimant argued that the 1st to 3rd defendants acted arbitrarily when they ignored the fact that the claimant had instituted an action in court and went ahead to suspend the claimant without a written notice nor hearing as stipulated by the NUJ constitution. The 1st to 3rd defendants failed to respond to or join issues with the submission.
(vi) The 1st to 3rd defendants led no argument or evidence to rebut the argument of the claimant contained in paragraph 5.03 of the written address in support of the originating summons to the effect that the “The 1st 2nd and 3rd Defendants are in the constant habit of arbitrarily suspending members without recourse to the Constitution of the NUJ. We submit my Lord, that the Claimant even though under very tight timeframe, appealed to the 1st, 2nd and 3rd Defendants to no avail, before embarking on her journey to seek justice from the courts”.
(vii) They didn’t respond to paragraph 5.04 of the written address in support of the originating summons to the effect that the penalty stipulated by the NUJ constitution is suspension from 0 - 12 months, and that the suspension handed down to the claimant is unconstitutional as it is indefinite and does not even spell the offence committed by the claimant, quite apart from the fact that it does not stipulate the duration of the said suspension.
96. To the claimant, issues submitted need no further proof. That the defendants have admitted, by not responding to paragraph 41 of the affidavit in support of the originating summons and paragraphs 4.11, 4.08, 4.19, 5.02. 5.03 and 5.04 of the written address in support of the originating summons. That their failure to respond to or silence on the issues raised therein amount to an admission, and such admission is evidence before this Court that the content is true. That it is trite that issues admitted need no further proof. On whether admission/admitted facts need further proof, the claimant referred to Skymit Motors Ltd v. UBA Plc [2020] LPELR-52457(SC) and Nwankwo v. Yar’Adua [2010] All FWLR (Pt. 534) 1. The claimant then urged the Court to hold that the issues canvassed by the claimant that have been cleverly neglected by the 1st to 3rd defendants stand admitted.
97. Claimant Exhausted all Internal Mechanisms of the Union in an Attempt to Resolve the Issue of Her Disqualification Before Going to Court. The reply on points of law of the claimant on this issue is merely a rehash of her argument in the main address. On the unreported case of Ejumetowo Anthony Asuotu v. University of Abuja, the claimant submitted that the 1st to 3rd defendants are misconceived, and this can be deduced by juxtaposing the facts given here with the facts of the said case. That in the instant case, the claimant exhausted all internal mechanisms before going to court.
98. The 1st to 3rd defendants had cited Chinwo v. Owhonda [2008] 3 NWLR (Pt. 1074) 341 at 30 to the effect that a court has no jurisdiction to set aside or change the voluntary decision made by members of a voluntary association. To the claimant, that is not the case here. That once again, the 1st to 3rd defendants misconstrued and failed to appreciate the purport of that authority. That the last sentence of Chinwo v. Owhonda (supra) reads thus:
…in other words, wrongs done to a voluntary association, or disputes arising from a debate, should be resolved by the majority decision of the voluntary club or association of which his view was in the minority.
That there is no evidence before this court that the decisions of the 3rd defendant are the decisions of the majority of the association.
99. That Elufioye v. Halilu [1993] 6 NWLR (Pt. 301) 570 SC at 595 defined the relationship between a member of a trade union and the union thus:
The relationship between a member of a Trade Union and the Union itself is contractual, and the terms of the contract are to be found in the rules of the Union. A member of a trade union has in general the right to take proceedings to enforce compliance with the Union’s own rules in relation to matters such as election of officers and other internal regulation.
100. The claimant submitted that the members of a trade union and/or an association can take the association/trade union to court. As such, the submissions made by the 1st to 3rd defendants in paragraphs 3.16 to 3.19 of their written address is misconceived, and this is obvious from the singular fact that they contradict each other, being that Ejumetowo Anthony Asuotu v University of Abuja (supra) says in one breath that members of an association “shall not resort to a law court without proof of having exhausted the internal avenues for settling disputes”, whereas, Chinwo v. Owhonda (supra) in clear contrast, states that courts have no jurisdiction to entertain matters involving decisions made by trade unions or associations. That this is quite apart from the fact that the rest of the arguments in paragraphs 3.19 to 3.22 of the 1st to 3rd defendants’ written address also suggest that courts actually have jurisdiction to entertain matters bordering on internal issues of a trade union, but the condition precedent is that such a member suing must first exhaust the internal mechanisms for dispute resolution before going to court. That even though the 1st to 3rd defendants seem to be confused as to what the correct position is, as to whether this Court has jurisdiction to entertain a matter that borders on decisions made by trade unions and or associations, the claimant is not confused at all. The claimant’s case still remains that this Court has jurisdiction to entertain this matter, which jurisdiction is activated by proof of having exhausted the internal avenues for settling disputes, which in the claimant’s case is Exhibit AK51. The claimant then urged the Court to hold in her favour that she exhausted the internal mechanisms of the union before going to court, and that her suspension was done arbitrarily, and so is null, void and in contravention of the provisions of the constitution of the NUJ.
101. The Suspension of the Claimant was Done Arbitrarily and not in Accordance with the Provisions of the NUJ Constitution. The submissions of the claimant on this issue are essentially new and raise points that seem to have been forgotten to be made in the initial submission. The talk about the Assistant National Secretary of the 2nd defendant not having the right to suspend the claimant is new and raised for the first time in a reply on points of law. Same is the talk of the claimant not suspended by NEC, and not suspended for dereliction of duty but for anti-union activity. Aside from this, all the other submissions of the claimant here are a rehash of already made submissions. I shall accordingly discountenance the submissions of the claimant in respect of the issue she raised here.
102. The Petition, the Basis of the Claimant’s Suspension, is not Before the Court. Once again, the submissions of the claimant here are a rehash of already made submissions or raise new things that seem to have been forgotten, etc. The talk of the claimant not seeing the petition by Gloria Essien (Exhibit NUJ 1A) but was only told of its content verbally is new. It was not stated as such in the main address. Also not raised in the main address but brought anew in this reply on points of law are the submissions regarding the petition of Josephine Bitrus said to be written on 1 December 2020 i.e. 10 days before the election, and it not being the petition that was used to disqualify the claimant.
103. The claimant, however, pointed out that the 1st to 3rd defendants’ reference to Exhibit AK4 as a petition is misleading because the said exhibit is a Report of the NAWOJ FCT CREDENTIALS COMMITTEE. That there was no other petition apart from that by Gloria Essien of Voice of Nigeria.
104. The Procedure Laid Down by the NUJ Constitution was not Followed in Disqualifying the Claimant. Again the submissions here are a rehash, etc.
105. The Claimant is Eligible to Contest the NAWOJ Elections by the Standard of the NUJ Constitution, and has Contested the Same Election and Won in the Past. Yet again, some of the submissions here are a rehash, etc.
106. However, the 1st to 3rd defendants had alleged that the claimant has not provided any evidence to show that she was a member of a chapel. In reply, the claimant asserted that she is a member of the Ministry of Information Chapel. That the fact that she had contested for and won the elections and sat as the Chairman of the 1st defendant goes to show that she has all the requisite qualification and has served as an officer in a chapel. That that is a fact that inures in her favour. That the defendants have not denied the fact that she had contested and won the said election. So if their case is that the claimant is not so qualified, the onus is on them now to prove that the claimant has not been a member of any chapel.
107. The 1st to 3rd defendants had alleged that Arts production is a non-journalism portfolio. It is the claimant’s case that Art Production is journalism, and they (sic) are so many members of the union who are Art producers. That Art Production emanated from journalism and advertising agencies. That journalism cannot survive a day without Art producers. That if Arts Production is not journalism, how then is the claimant a member of the 1st and 2nd defendants, both unions of journalists? On eligibility to contest elections, the claimant referred to Article 5(B)(6) of the NUJ constitution. That nothing in this Article of the NUJ constitution says anything about being a “practicing journalist". That the claimant produced all of her documents, same as she produced in the previous election that she won. Otherwise, what did the Credentials Committee use in screening the claimant.
108. The Claimant was cleared by the Credentials Committee. Further still, the submissions of the claimant here are a rehash, new, etc — making points that appear to have been forgotten to be made in the main address. The submission that the 1st to 3rd defendants in their counter-affidavit alleged that what was published was “provisional Screening”, for which the defendants led no evidence nor argument to back the fact that the screening was “provisional” screening is new.
109. The Claimant’s SSCE (Exhibit NUJ 1C) is not the Basis for Qualification or Eligibility to Contest NAWOJ FCT 2020 Elections. The 1st to 3rd defendants had alleged that the claimant did not attach employment letter and her school certificate result showed that she failed. To the claimant, one wonders the point that the defendants are trying to make, as Article 3(2)(B) provides that one can be registered as a journalist if they have not less than five (5) years experience as a journalist prior to the Nigerian Press Council Act 85 of 1992. That by this provision, one does not even need to have any qualification at all to become a journalist if you fit into the category of persons in Article 3(2)(B) of the NUJ constitution.
110. To the claimant, she began journalism practice in 1986. Between 1986 and 1992 when the Nigerian Press Council Act 85 of 1992 was enacted, she had spent more than 5 years in the practice of journalism as an Arts Production Assistant (the modern-day equivalent of graphic artist). That going by the NUJ constitution, she does not even need to present any further credentials to be registered as a journalist.
111. On the issue of eligibility to contest for the NAWOJ FCT 2020 elections for which the claimant was wrongly disqualified, that Article 5(B)(6) of the NUJ constitution only cares about financial standing and involvement in the affairs of the union, chapel and State Council levels for five (5) consecutive years preceding the election, all conditions which the claimant fulfilled. That for the State Council Offices, which the Chairman of NAWOJ happens to fall under, Article 6(7)(b) of the NUJ constitution provides in addition to the above that such candidate should be in active service for seven years, and be in good financial standing and must have been officers in chapel. That the claimant met every single one of these requirements.
112. That the Court will find the claimant has fulfilled the conditions enshrined in Article 5(B)(6) of the NUJ constitution by the fact(s) that:
(i) The defendants have not said that the claimant was not of good financial standing.
(ii) The claimant was the Chairperson of the 1st defendant since October 2017.
(iii) That the claimant was cleared to contest the elections that she won to become Chairman in October 2017.
(iv) That every requirement that she fulfilled to become Chairman in October 2017 is the same as the requirement for the December 2020 NAWOJ FCT Election, and nothing changed.
113. Exhibit NUJ 1B is not Admissible in Law. This issue is raised for the first time in this reply on points of law and so will not be considered given that the defendants have no opportunity to react.
114. In conclusion, the claimant urged the Court to discountenance the legal authorities cited and misapplied to the peculiar facts of this case by the 1st to 3rd sefendants, and grant the reliefs sought for by the claimant in the originating summons.
The Submissions of the 4th Defendant in Opposition to the Originating Summons
115. As I pointed out earlier, the 4th defendant made a separate submission from the 1st to 3rd defendants’. It is the 4th defendant’s submission that she is not liable for the disqualification and/or suspension of the claimant, having played her role as Chairman of the Credentials Committee for the 2020 NAWOJ election, in that she screened the candidates for the election and published the names of the candidates that were cleared to contest the said election.
116. The 4th defendant submitted a sole issue for determination i.e. whether the 4th defendant can be held to be liable in the outcome of this suit, having played an unbiased role as Chairman of the Credentials Committee for the NAWOJ elections that held in 2020. To the 4th defendant, the claimant has not disclosed any cause of action against her. From the facts given, there is nothing that entitles the claimant to a remedy against the 4th defendant, referring to CBN v. Harris [2017] 11 NWLR (Pt. 1575) 54 CA on the distinction between cause of action and right of action. It is thus the 4th defendant’s submission that the claimant has no remedy to enforce against the 4th defendant, being that the 4th defendant conducted the screening, cleared the claimant to contest the NAWOJ 2020 election, and published the names of the candidates so cleared including that of the claimant, and has no authority to suspend her. Accordingly, that the 4th defendant is not a competent defendant to this suit. That where there is no wrong, there can be no liability. That having cleared the claimant, the 4th defendant has not committed any wrong and, therefore, cannot be liable for the outcome of this suit. In conclusion, the 4th defendant urged the Court to find in favour of the 4th defendant that she is not liable to the claimant, nor can she be liable to the outcome of this suit, having advised the 1st and 2nd defendants against the disqualification of the claimant and also knowing nothing about the claimant’s suspension.
117. Neither the claimant nor any of the other defendants reacted to the 4th defendant’s processes (the counter-affidavit and supporting written address). I take it, therefore, that the 4th defendant’s submissions are unopposed.
COURT’S DECISION ON THE ORIGINATING SUMMONS
118. The merit of the originating summons throws up a number of issues. Including some preliminary ones. For instance, on the face of the originating summons, the claimant filed this suit as “Chairperson of Nigeria Association of Women Journalists [NAWOJ]”. In paragraph 1 of the affidavit in support of the originating summons, she described herself as “the incumbent Chairman of the F. C. T Chapter of the Nigeria Association of Women Journalists (NAWOJ), and the Claimant in this suit”.
119. In question (1) posed for determination, the claimant asked whether “…the 1st and/or 2nd Defendant(s) can disqualify the Claimant from contesting the 2020 Elections purportedly held by the Nigeria Association of Women Journalists (on 12/12/2020), on the grounds that her certificate in Advanced Diploma in Journalism is not recognised and that the Claimant lacks of the requisite 7-year qualification to contest the post of Chairperson of the 1st Defendant…”
120. And in relief (1), the claimant prayed for a declaration that “…the Defendants cannot disqualify the Claimant from contesting the 2020 Elections purportedly held by the Nigeria Association of Women Journalists (on 12/12/2020), on the grounds that her certificate in Advanced Diploma in Journalism is not recognized and that the Claimant lacks the requisite 7-year qualification to contest the post of Chairperson of the 1st Defendant…”
121. And in her written address in support of the originating summons, the claimant variously submitted that she cannot be stopped from contesting for the Office of Chairman of the 1st defendant. See, for instance, paragraphs 4.10, 4.16 and 5.15 of the said written address. And in paragraph 5.8 of her reply on points of law, the claimant talked of contesting, winning and sitting as Chairman of the 1st defendant.
122. Now, the 1st defendant is Nigeria Association of Women Journalists [NAWOJ], not NAWOJ FCT Chapter. Accordingly, can the claimant take up an originating process (and ask for a relief in that regard) as Chairperson of NAWOJ, in its wider body, when in fact she is merely the Chairperson of a Chapter, the FCT Chapter? In suing as Chairperson of NAWOJ, when she is only Chairperson of a Chapter (the FCT Chapter), is the suit competent? I must state that none of the parties raised this issue. And so I say no more.
123. I indicated earlier that, and pointed out how, the claimant’s reply on points of law is a rehash of her main submissions or brought up new things that were not canvassed in the main address. By law, a reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points arising from the opposing brief. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. It is not a form to engage in arguments at large. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA), Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC), Ojo v. Okitipupa Oil Palm Plc [2001] 9 NWLR (Pt. 719) 679 at 693, Ogboru v. Ibori [2005] 13 NWLR (Pt. 942) 319 and Cameroon Airlines v. Mike Otutuizu [2005] 9 NWLR (Pt. 929) 202. The effect of non compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 590) 204, ACB Ltd v. Apugo [1995] 6 NWLR (Pt. 399) 65 and Arulogun & ors v. Aboloyinjo & anor [2018] LPELR-44076(CA). I have accordingly discountenanced all that part of the reply on points of law that were re-arguments or meant to improve on the quality of the initial submissions or put right initial arguments of the claimant or bring in points that were forgotten or new.
124. In paragraph 3.14 of their written address in opposition to the originating summons, the 1st to 3rd defendants referred this Court to the decision of “Justice P. O. Affem” in Ejumetowo Anthony Asuotu v. University of Abuja unreported Suit No. FCT/HC/CV/0647/2018 as authority for the need to exhaust all internal dispute resolution mechanisms. The 1st to 3rd defendants did not supply the date the judgment was delivered. Nor did they supply the certified true copy of the judgment, since it is unreported.
125. Order 45 Rule 3(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules (NICN Rules) 2017 stipulates that where any unreported judgment is relied upon, the Certified True Copy shall be submitted along with the Written Address. And in Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor [2019] LPELR-46413(SC), this is what Her Ladyship Augie, JSC said:
It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon - see Chidoka & anor v. First City Finance Co. Ltd [2013] 5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)…
What all of this means is that the 1st to 3rd defendants do not want this Court to use Ejumetowo Anthony Asuotu v. University of Abuja. The said case shall accordingly be discountenanced for purposes of this judgment. I so hold.
126. The 4th defendant is the Chairman of the Credentials Committee 2020 NAWOJ Elections of the FCT Chapter. Sued as such, there are claims against her i.e. reliefs (2), (4), (5), (6), (7), (11), (12) and (13). In paragraph 8 of the 4th defendant’s counter-affidavit, she averred that the Credentials Committee screened and cleared the claimant for the NAWOJ FCT 2020 Elections, after meeting all the necessary requirements for the position. In paragraphs 9, 10 and 15 of her counter-affidavit, she advised against the suspension of the claimant but to no avail. Thus having cleared the claimant, the 4th defendant does not know what wrong she has committed to be sued as a defendant in this suit. As such, she cannot be liable for the outcome of this suit, having also advised the 1st and 2nd defendants against the disqualification of the claimant and also knowing nothing about the claimant’s suspension. None of the other defendants and the claimant reacted to this i.e. both the counter-affidavit and written address of the 4th defendant. I take it, therefore, that she spoke the gospel truth. There is no basis to have her a defendant in this suit. I so hold. The claims against her are hereby dismissed.
127. This leaves out the claims against the 1st, 2nd, 3rd and 5th defendants. The claimant as Chairperson of NAWOJ FCT Chapter stood reelection for the same office. By the narration of the 4th defendant (contrary to that of the claimant who says that it was the 4th defendant who disqualified her — see ground 4 of the grounds upon which the claimant seeks her reliefs), the claimant was screened and cleared by the Credentials Committee to stand for the election. However, she was still disqualified (a few days to the election) from standing for the office of Chairperson in the election and the 5th defendant stood unopposed for the office. To the claimant, she would even be indefinitely suspended vide Exhibit AK10 of 8 March 2021. And despite all her appeals, she was disqualified for the election (and suspended) — hence this action. The question for determination is, therefore, whether despite her clearance by the Credentials Committee, her disqualification and suspension is lawful.
128. In proof of her case, the claimant filed her affidavit in support and a number of exhibits. Unfortunately, Exhibits AK1 and AK3 are just not readable. Nothing can thus be made of them.
129. I must clarify a point at the outset. The claimant intuited all through her submissions that she stood election and won on the same requirements that are now being held against her in the bid for reelection. But I must state that the fact that the claimant was Chairperson of NAWOJ FCT Chapter and stood reelection based on the same criteria that gave her the initial office does not mean that if there are disqualifying requirements on her part, she cannot be subsequently disqualified from standing reelection.
130. In paragraph 22 of her affidavit in support, the claimant averred that when she and her supporters saw the disqualification notice, she appealed against it to the President of NAWOJ and the President of Nigeria Union of Journalists (NUJ). As evidence of this, she referred to Exhibits AK5 and AK6. Now, Exhibit AK5 is a letter by the claimant to the President of NAWOJ dated 7 December 2020 and is titled “Appeal Against My Disqualification as a Candidate in the NAWOJ FCT Chapter 2020 Elections”. The letter ended with a demand for immediate clearance. On the face of Exhibit AK5, it appears that certain offices were copied: The NUJ President, The National Secretary NUJ, The Vice President NAWOJ Zone D, The Zonal Secretary NAWOJ Zone D and The National Secretary NAWOJ. There is, however, nothing on the face of Exhibit AK5 to show that it was received by any of the recipients. The 1st to 3rd defendants denied receiving Exhibit AK5 and stated in paragraph 13 of their counter-affidavit that there is no evidence of any acknowledgement either by stamp endorsement or signature to show receipt. In answer, the claimant stated in paragraph 10 of her further affidavit that the defendants refused to receive the said Exhibit AK5.
131. The claimant in same paragraph 10 of her further affidavit stressed Exhibit AK6 as an appeal coming form her support group. Exhibit AK6 is a letter dated 7 December 2020 from “Concerned Colleagues of Stella Okoh-Esene Campaign Organisation (SOCO)” to the President NUJ. The signatories to Exhibit AK6 are not discernible as the names are blurred and not readable. And there are an unreadable stamps on its first and last pages. Even if these were not the case, Exhibit AK6 coming from other than the claimant cannot be the appeal that the union constitution envisages. An appeal for purposes of satisfying all internal mechanisms must come from the claimant, not some amorphous group calling itself “Concerned Colleagues of Stella Okoh-Esene Campaign Organisation (SOCO)”. Exhibit AK6 cannot, therefore, be evidence of an appeal as the claimant argues. I so hold.
132. The claimant’s case is hinged on the interpretation of Articles 3, 5, 6 and 7 of the constitution of the Nigeria Union of Journalists (NUJ) — Exhibit AK7. Article 3 deals with membership. Article 5 with organs of the union. Article 6 with elections and Article 7 with discipline. In this regard, and as it relates to the case at hand, I need to make an important clarification. Article 5(A) of the NUJ constitution states thus: “The Nigeria Union of Journalists shall be organized at the National, Zonal, State and Chapel levels”. Accordingly, the office of Chairperson over which the present dispute is hinged on is a State level office, and so the provisions necessary for resolving the dispute must be the provisions that relate to State Councils. As such, the reliance by the claimant on Article 5(B)(6), which comes under “National Delegates’ Conference” must be read as relating to the National organ of the NUJ. Article 5(B)(6) provides thus:
To be eligible as a delegate, a member of the union must be in good financial standing and must have been involved in the affairs of the Union and Chapel and State Council levels for five consecutive years preceding the Delegates Conference.
133. The claimant placed reliance on Article 3 of the NUJ constitution. Various sub-articles of Article 3 were referred to by the parties. They are:
3(1)(a) A person shall not be a member of the Union, except if registered by the National Secretariat of the Union on the recommendation of the state council.
3(2)(a) In addition to the provision in Article 3(1), a person to be so qualified shall also possess a minimum of Diploma and cognate experience in Journalism or Mass Communication obtained from a recognized institution, with a working experience of not less than 12 months in a recognized, media establishment.
3(3)(c) A journalist who moves out of the profession after seven years of active practice shall be accorded his length of service period in the profession, if such a person decides to return to journalism practice.
3(3)(d) To be registered as a professional journalist, a member should have satisfied the provisions of Article 3(1), and (2) of this constitution. In addition, each applicant shall be expected to complete an application form and swear to an oath of allegiance of the Constitution and Code of Professional and Ethical Conduct.
134. The claimant specifically relied on and so interpreted Article 3(3)(c) as in effect saying that once you have actively practiced journalism for 7 years, and you leave the profession to do something else unrelated to journalism, whenever such a person decides to return to journalism practice, in considering the number of years such a person has practiced, the initial 7 years together with the other number of years spent out of the profession shall be considered. To the claimant, assuming the person spends initial 7 years in active practice and spends another 3 years doing something outside journalism, in computing the number of years such a person would be said to have practiced, the Article states that such a person shall be said to have practiced for 10 years.
135. I do not agree with the claimant that this is the correct interpretation of the article. At the risk of repetition, Article 3(3)(c) states thus:
A journalist who moves out of the profession after seven years of active practice shall be accorded his length of service period in the profession, if such a person decides to return to journalism practice.
The length of service Article 3(3)(c) talks about is the seven years of active service, not the seven years plus whatever years the journalist spent outside of the profession, as the claimant seems to think. If the intendment of Article 3(3)(c) was to toe the line of the claimant’s interpretation, then there would have been no need to even insert it in the constitution. The construction of Article 3(3)(c), I must reiterate, does not factor the years spent outside of the profession when computing length of service — only the period of service spent in the profession is factored in. I so hold.
136. Of the 13 reliefs claimed by the claimant, 5 are declaratory. And proof of declaratory reliefs is very strict — and must be on the strength of the claimant’s evidence, not the weakness of the defence. See Okereke v. Umahi & ors [2016] LPELR-40035(SC), Nyesom v. Peterside & ors [2016] LPELR-40036(SC) and Mrs Catherine Udeogu & 11 ors v. Federal Airports Authority of Nigeria (FAAN) unreported Suit No. NICN/LA/326/2017, the judgment of which was delivered on 16th February 2018. Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1 insists that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant. See also Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4th December 2018. The burden of proof placed on the claimant is one that is strict and high.
137. The key question before this Court is whether the claimant was lawfully disqualified to stand reelection. Only the interpretation of the NUJ constitution can give us an answer. The defence of the 1st to 3rd defendants is that the claimant was not even qualified to stand reelection. The decision to disqualify the claimant amongst others and the grounds upon which the disqualification was made was communicated to the Credentials Committee Chairperson by the National Secretary of NAWOJ vide Exhibit AK 4 dated 4 December 2020. Accordingly, the 1st to 3rd defendants relied on the said grounds in justification of the disqualification of the claimant. The first is Article 6(7)(b) of the NUJ constitution, which states:
For the State Council offices, such candidates must have been in active service for seven years and be in good financial standing and must have been officers in a Chapel.
138. To the 1st to 3rd defendants, the claimant in her affidavit failed to state which office she occupied in a chapel. No evidence was furnished that she was in any chapel, let alone being an officer in a Chapel.
139. The answer to this given by the claimant is that she is a member of the Ministry of Information Chapel. The question is: where is the proof of this? The defendant’s argument is that the claimant did not show in this instant suit the proof of her being an officer in a Chapel.
140. Now, by the said Article 6(7)(b), for a candidate to be qualified to stand election to a State Council office (the FCT approximates to a State Council), such candidate must satisfy three requirements: be in active service for 7 years; be in good financial standing; and must have been an officer in a Chapel. The claimant says she is qualified to stand reelection to the office of Chairperson of FCT Council. The burden is on her to proof these three requirements. The argument of the claimant in paragraph 5.8 of her reply on points of law is that:
…the fact that Claimant had contested for and won the elections and sat as the Chairman of the 1st Defendant goes to show that she has all the requisite qualification and has served as an officer in a Chapel. That is a fact that enures in favour of the Claimant. The Defendants have not denied the fact that the Claimant has contested and won the said election. So if their case is that the Claimant is not so qualified, the onus is on them now to prove that the Claimant has not been a member of any chapel.
141. Aside from this being evidence by conjecture or inference (which cannot ground a claim for a declaratory relief), the claimant is trying to shift the burden of proof from herself to the defendants. Article 6(7)(b), for instance, requires that the claimant “must have been [an officer] in a Chapel”. The question is: where is the proof of this? The claimant gave none as far as this case is concerned. To say that having held the office of Chairperson must be read to mean that the claimant “has served as an officer in a Chapel” is not the kind of proof needed to sustain the claims of the claimant. To say that “the onus is on [the defendants] now to prove that the Claimant has not been a member of any chapel” is to shift the burden of proof. As it is, I hold that the claimant has not proved (to the satisfaction of this Court) the requirement of having been an officer in a Chapel, one of three requirements needed to qualify her to stand reelection as Chairperson of the FCT Chapter of NAWOJ.
142. The second ground upon which the 1st to 3rd defendants hinged their defence is that the claimant in virtue of Exhibit NUJ 1B became a practicing journalist upon her conversion from Arts Production (a non-journalism portfolio) to Assistant Executive Officer (Information) (a journalism portfolio) in 2015, which clearly shows that as at December 2020, the plaintiff was only in active practice of journalism for five (5) years and not seven (7) years. Exhibit NUJ 1B dated 8 June 2016 is a letter to the claimant from the Director Human Resources Management of Federal Ministry of Information informing the claimant that the Federal Civil Service Commission approved her “Conversion from the post of Chief Art Production Assistant Salary Grade Level 07, to the post of Assistant Executive Officer (Information) Salary Grade Level 06, with effect from 1st January, 2015”.
143. In answer, the claimant relied on Article 5(B)(6) of the NUJ constitution, which I indicated earlier relates to “National Delegates’ Conference” and so must be read as relating to the National organ of the NUJ, not State Council. The argument of the claimant that the defendants are not backing up their submissions with any NUJ constitutional provision is begging the question. For declaratory claims, the defendants do not need to back up anything. The claimant wins on the strength of her case, not the weakness of the defence.
144. The 1st to 3rd defendants said that Arts Production is a non-journalism portfolio. The answer of the claimant in paragraph 5.10 of her reply on points of law is: “If Arts Production is not journalism, how then is the Claimant a member of the 1st and 2nd Defendants, both unions of journalists?” The claimant cannot be serious here. The claimant cannot by conjecture or inference prove that Arts Production is a journalism portfolio. The burden is on the claimant to show by direct and positive evidence that Arts Production is a journalism portfolio. This she has not done to the satisfaction of this Court. I so hold.
145. It is also the case of the defence that it was when the claimant converted to Assistant Executive Officer (Information) in 2015 that she became a journalist. And so, when in 2020 she stood reelection, she did not meet the 7 years minimum requirement needed for her to qualify to stand reelection.
146. To the claimant, there is nothing in the NUJ constitution to support the defendants’ claims that she lacks the requisite 7 year experience to contest for the position of Chairperson of the 1st defendant because she converted from the graphics unit of the Federal Ministry of Information to an Information Officer in the same Ministry (which is still in the field of journalism), and even if it was the case that she left journalism practice by so doing, she will still have the requisite 7 year experience to run for the office of Chairperson of the 1st defendant as long as she had put in 7 years of active service in the profession before doing so.
147. Article 6(7)(b) of the NUJ constitution specifically insists that “candidates must have been in active service for seven years”. The claimant’s reference to Article 5(B)(6) of the NUJ constitution and the assertion that this Article says nothing about “practicing journalist” does not answer the question posed by Article 6(7)(b), which is even the more applicable provision to Article 5(B)(6), that a candidate for State Council office must have been in active service for seven years. The defence said that the claimant became a journalist in 2015, and so was only five years in active service when in 2020 she stood reelection. It is for the claimant to show by direct and positive evidence that she has put in seven years of active service. This she has not done to the satisfaction of this Court. I so hold.
148. The third ground of the defence is that the claimant does not even have the requisite academic credentials, thus questioning her membership of the union. The defence hinges this argument on Exhibit NUJ 1A dated 1 December 2020, which is a protest by Josephine Bitrus, former Treasurer Correspondents Chapel FCT, against the clearing of the claimant to contest for the office of NAWOJ Chairperson. The protest is addressed to the Chairperson of the 2020 NAWOJ FCT Credentials Committee. In the protest, the claimant was accused, amongst others, of not having evidence of Lower Diploma in journalism which should precede an Advanced Diploma. She was also accused of, inter alia: having a Testimonial that accounts for only one year secondary education; of not obtaining the statement of results from the West African School Certificate Examination which she sat in May/June 1984; of discrepancies in her Convocation Call-up, etc.
149. In consequence of this protest, the 1st to 3rd defendants submitted that the Credentials Committee requested the claimant to produce evidence of Lower Diploma considering that she failed her SSCE, but the claimant failed to furnish the Committee with her Lower Diploma certificate. That coupled with the fact that the claimant’s membership of the union as per the ID card i.e. Exhibit AK1 expired on 06/10/2020, which membership she has not renewed, all cast doubt on the membership status of the claimant and was thus found wanting in meeting Article 3 requirement of the union’s constitution. That the claimant, having failed to prove she met requirement of Articles 6(7)(b), l, 2 and 3 of the union’s constitution, was validly and lawfully disqualified by the 1st and 4th defendants.
150. There are a number of discrepancies in the argument of the 1st to 3rd defendants here. For one, there is no evidence before the Court that Exhibit NUJ 1A was forwarded to the claimant to respond to the charges in there. Secondly, the 1st to 3rd defendants talked of the claimant failing her SSCE. However, Exhibit NUJ 1C brought in by them shows that the claimant has 3 passes. This cannot be the failure intuited by the defence.
151. Thirdly, Exhibit NUJ 1A, on membership, talked of a person possessing either a Higher National Diploma (HND) or a degree or its equivalent in Journalism or Mass Communication from a recognised institution. It went on to talk of a proviso that allows holders of Postgraduate Diploma (PGD) or Masters Degree in Journalism or Mass Communication or any relevant certificate in the profession to become members. It is on this basis that the petitioner hinged her argument about the claimant having an Advanced Diploma without showing a Lower Diploma.
152. A look at Article 3(2)(a) of the NUJ constitution will show that no where in it is any provision made as to HND, PGD and Masters Degree. All the article states is this:
In addition to the provision in Article 3(1), a person to be so qualified shall also possess a minimum of Diploma and cognate experience in Journalism or Mass Communication obtained from a recognized institution, with a working experience of not less than 12 months in a recognized, media establishment.
Article 3(1a) on its part only provides that to be a member of the union, one has to be registered by the National Secretariat on the recommendation of the State Council. Where then is HND, PGD and Masters Degree mentioned?
153. The evidence of the 4th defendant, as Chairman of the Credentials Committee, is that the claimant was cleared to stand reelection. However, the counter-affidavit of the 1st to 3rd defendants deposed to by Dorcas Jonah, who was a member of the Credentials Committee, is to the effect that the claimant was never cleared. See paragraph 19 of the said counter-affidavit. That what was published was “provisional Clearance”. And in paragraph 11 of same counter-affidavit, it was averred that a petition was also received from one Gloria Essien. First, the “Provisional Clearance” is not before the Court. Secondly, the petition of Gloria Essien is also not before the Court. So, the assertion that the claimant was never cleared is accordingly doubtful and has no basis at all.
154. What all this means is that the third ground upon which the 1st to 3rd defendants disqualified the claimant is not sustainable. The ground is accordingly rejected. I so rule. Grounds one and two relied upon by the 1st to 3rd defendants in disqualifying the claimant, however, stand. I so hold. This means that the 1st to 3rd defendants have successfully justified the disqualification of claimant. The claimant has not been able to show otherwise. Question (1) posed by the claimant is accordingly answered against the claimant on the basis of the just referred grounds one and two relied on by the 1st to 3rd defendants in disqualifying the claimant.
155. The second complaint of the claimant is that she was wrongly suspended. This is the crux of question (2) posed by her. The yardstick for challenging suspension is whether the suspension is necessary, reasonable, valid and hence lawful. The basis of the claimant’s complaint is that she was not “afforded the…opportunity to be heard”. I must right away point out that the authorities are pretty clear that when it comes to suspension, the question of fair hearing and/or natural justice is immaterial. For instance, Longe v. FBN Plc [2010] 6 NWLR (Pt. 1189) 1 held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights. See also Ayewa v. University of Jos [2000] 6 NWLR (Pt. 659) 142, Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt. 923) 87 and Shell Pet. Dev. Co. v. Lawson Jack [1998] 4 NWLR (Pt. 545) 249. So, not afforded an opportunity to be heard, cannot be a valid ground of challenging the suspension of the claimant. I so hold.
156. The claimant was suspended by the NUJ vide a letter from the Assistant National Secretary to the Chairman/Secretary of NUJ Abuja Chapter dated 8 March 2021 (Exhibit AK 10). The claimant was copied the said Exhibit AK 10. It simply states thus:
This is to convey to you the indefinite suspension of STELLA OKOH-ESENE for anti union activity.
She should be warned to stay away from all Union activities pending when the suspension will be reviewed.
157. The reason for the suspension of the claimant is said to be “anti union activity”. Analogous to the duty placed on an employer to justify the reason for a dismissal of an employee where one is given by the employer, the same rule applies where a reason for suspension is given. Thus in saying that the claimant was suspended for anti union activity, the defendants gave a reason for the suspension. The duty is thus on them to justify this, if her suspension is not to be held as invalid and unlawful. The claimant had filed Suit No. CV/075/2021 on 14 January 2021 at the High Court of the FCT. See paragraph 39 of the affidavit in support of the originating summons as well as Exhibit AK 9. So when by Exhibit AK 10 dated 8 March 2021 the claimant was suspended, this was after the filing of Suit No. CV/075/2021. In paragraph 41 of the affidavit in support of the originating summons, the claimant explained that on 8 March 2021, the High Court of the FCT directed that parties should attempt settling the matter out of court — only for Exhibit AK 10 to be issued instead of the settlement.
158. In their counter-affidavit, the 1st to 3rd defendants did not say anything regarding the suspension of the claimant. In fact, they said nothing on paragraph 41 of the claimant’s affidavit in support. Even the general denial couched in paragraph 6 of the counter-affidavit of the 1st to 3rd defendants does not even have the claimant’s paragraph 41 as one of the paragraphs denied. So, effectively, the defendants admit the claimant’s paragraph 41. I so hold.
159. The law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See Akande v. Adisa & anor [2012] LPELR-7807(SC), El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246; Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 183) 586; Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460; UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 288; Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359.
160. Effectively, therefore, it is because the claimant went to court that influenced the defendants suspending her. Article 7(2)(v) of the NUJ constitution states that “Members who resort to legal action against the Union without exhausting all internal mechanisms for resolving disputes shall automatically be suspended from the Union”. This is the only Article that can justify what the defendants did by suspending the claimant for anti union activity. This is because Article 7(3)(a), which provides that “When a journalist is found liable by the committee for professional and or ethical misconduct, the committee shall recommend to NEC to reprimand, or suspend such a member from the Union for a period not exceeding twelve 12 months”, is one that applies when a journalist is found liable for professional and or ethical misconduct. Exhibit AK 10 did not say that the claimant is guilty of “professional and or ethical misconduct”, and it did not suspend the claimant for a period not exceeding 12 months. It suspended the claimant indefinitely and for anti union activity, which I read as filing a suit against the defendants.
161. The very fact that Article 7(2)(v) penalises members for going to court can only mean one thing: it is an unfair labour practice provision, which must be ruled down on; as was done by this Court in Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC. The appeal against this decision was rejected by the Court of Appeal in University of Ilorin Teaching Hospital Management Board & anor v. Mrs Abdulrahaman Yetunde Mariam [2016] LPELR-41673(CA).
162. Having thus not justified the reason given for the suspension of the claimant, having not explained away the averments of the claimant in that regard, and having held that Article 7(2)(v) of the NUJ constitution is an unfair labour practice provision, the suspension of the claimant by the defendants must be declared unreasonable, unlawful, and so null and void. The question whether the claimant exhausted all internal mechanisms for resolving disputes does not even arise given that the defendants offered no justification for the suspension in the first place. Accordingly, I find (and so hold) that the suspension of the claimant by the defendants is unreasonable, unlawful, and so null and void.
163. I accordingly answer question (2) posed in favour of the claimant but only in so far as it relates to the defendants not justifying the reason they gave for her suspension. I so hold.
164. I answered question (1) against the claimant; and question (2) partly in her favour. This leaves out question (3), which incidentally is hinged on affirmative answers to both questions (1) and (2). Question (3) seeks the reinstatement of the claimant but only in terms of the office of Chairperson of NAWOJ. So, in answering question (1) against the claimant, it means that the claimant cannot be reinstated as Chairperson of NAWOJ. I accordingly answer question (3) against the claimant. I so hold.
165. Given the answers to the questions posed by the claimant, and the reasons adduced thereby, I rule thus in respect of the reliefs claimed:
(1) Relief (1) is not granted.
(2) Relief (2) is not granted.
(3) Relief (3), including its alternative, is not granted.
(4) Relief (4) is not granted.
(5) Relief (5) is not granted.
(6) Relief (6) is not granted.
(7) Relief (7) is not granted.
(8) Relief (8) is not granted.
(9) Relief (9) is granted but only as it relates to the indefinite suspension of the claimant and in terms presently made, not dismissal as claimed. Accordingly, the purported letter of indefinite suspension issued by the 2nd defendant on 8 May 2021 is unlawful, null and void and of no effect whatsoever.
(10) Relief (10) is granted. Accordingly, the indefinite suspension of the claimant made by the 2nd defendant on Monday 8 March 2021 is hereby nullified.
(11) Relief (11) is not granted.
(12) Relief (12) is not granted as it was not proved.
(13) I declared and held the indefinite suspension of the claimant as unlawful, null and void. The claimant is accordingly entitled to general damages in that regard, which I hereby assess at Five Hundred Thousand Naira (N500,000.00) only payable by all but the 4th defendant to the claimant. Accordingly, it is hereby ordered that the 1st, 2nd, 3rd and 5th defendants shall within 30 days of this judgment pay to the claimant the sum of Five Hundred Thousand Naira (N500,000.00) only being general damages for indefinite and unlawful suspension of the claimant.
166. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
