IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BAUCHI JUDICIAL DIVISION
HOLDEN AT GOMBE
BEFORE HIS LORDSHIP HON. JUSTICE MUSTAPHA TIJJANI
JUNE 16, 2022
SUIT NO: NICN/BAU/05/2022
BETWEEN
DR. IBRAHIM DANJUMA ---------------------------------------------- CLAIMANT
AND
1. THE ACADEMIC STAFF UNION OF UNIVERSITIES (ASUU)
2. THE PRESIDENT, ACADEMIC STAFF UNION OF
UNIVERSITIES (ASUU)
3. PROF. LAWAN G. ABUBAKAR,
THE ZONAL COORDINATOR, ACADEMIC STAFF
UNION OF UNIVERSITIES (ASUU), BAUCHI ZONE
4. DR. YUSUF MUSA YAHAYA,
THE CHAIRPERSON, ACADEMIC STAFF UNION OF
UNIVERSITIES (ASUU),
BAUCHI STATE UNIVERSITY GADAU CHAPTER
5. ISMAIL HASSAN,
THE SECRETARY, ACADEMIC STAFF UNION
OF UNIVERSITIES (ASUU),
BAUCHI STATE UNIVERSITY GADAU CHAPTER
6. ISMAIL HARUNA,
ASSISTANT SECRETARY, ACADEMIC STAFF UNION
OF UNIVERSITIES (ASUU),
BAUCHI STATE UNIVERSITY GADAU CHAPTER DEFENDANTS
7. SULAIMAN GARBA AMINU,
FINANCIAL SECRETARY, ACADEMIC STAFF UNION
OF UNIVERSITIES (ASUU),
BAUCHI STATE UNIVERSITY GADAU CHAPTER
8. DAHIRU MOHAMMED UMAR,
WELFARE OFFICER, ACADEMIC STAFF UNION
OF UNIVERSITIES (ASUU),
BAUCHI STATE UNIVERSITY GADAU CHAPTER
9. DR. ABDULKADIR ABUBAKAR,
CONVENER, ASUU-BASUG ELECTORAL COMMITTEE
10. DR. SHUAIBU UMAR GOKARU,
SECRETARY, ASUU-BASUG ELECTORAL COMMITTEE
11. KAMAL MOHAMMED JIBRIN,
MEMBER, ASUU-BASUG ELECTORAL COMMITTEE
12. ABDULLAHI AYUBA,
MEMBER, ASUU-BASUG ELECTORAL COMMITTEE
REPRESENTATION:
M.M Muhammad Esq. for the Claimant.
Umar Abdurrahman Esq. for the Defendants.
JUDGMENT
1.0. INTRODUCTION:
The Claimant initiated this action against the Defendants vide an Originating Summons dated January 24, 2022 and filed the February 1, 2022 seeking the determination of the following three questions:
1. Whether the 1st, 2nd, and 3rd Defendants by virtue of the provisions of Article 14 (2a and b) and Appendix II of the Constitution of the Academic Staff Union of Universities (As Amended in 2018) which provided for the Supplementary Rules on Branch election have the power to interfere and or direct the postponement of a Branch election barely less than 24 hours to the said election?
2. Whether or not having regard to the provision of Article 10(vi) of the 1Constitution of the Academic Staff Union of Universities (As Amended in 2018), the 4th to 8th Defendants’ term of office have elapsed as leaders of the Academic Staff Union of Universities, Bauchi State University Chapter having assumed their respective offices sometime in June, 2018?
3. Whether or not having regard to the provision of Appendix II (xxv) of the Constitution of the Academic Staff Union of Universities (As Amended in 2018), the 9th to 12th Defendants can accept, treat and or give credence to any petition, observation or criticism made by any member of the Union outside the prescribed period for the receipt of the said petitions, observation or criticism in the 2021 General Election Schedule supplied and duly authenticated by the Electoral Committee?
The Claimant, upon the determination of the above questions, claims against the Defendants the following reliefs as copiously set out on the face of the Originating Summons, thus:
1. A DECLARATION that the interference and or directives of the 1st, 2nd and 3rd Defendants to the Electoral Committee of the Academic Staff Union of Universities (ASUU), Bauchi State University Chapter which postponed its general election slated to hold on the 18th day of November, 2021 barely less than 24 hours to the said election is illegal, null and void having regard to the provision of Article 14 (2a and b) and Appendix II of the Constitution of the Academic Staff Union of Universities Constitution (As Amended in 2018).
2. A DECLARATION that the 4th to 8th Defendants’ term of office have elapsed having spent more than the constitutionally guaranteed 2 years in consonance with the provision of Article 10(vi) of the Constitution of the Academic Staff Union of Universities (As Amended in 2018) the leadership having assumed office in June, 2018.
3. A DECLARATION that the 9th to 12th Defendants cannot accept, treat and or give credence to any petition, observation or criticism made by any member of the union outside the prescribed period for the receipt of the said petitions, on the ground that the petitioners having slept over their rights to raise any issue timeously to the electoral committee.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st, 2nd and 3rd Defendants from further interfering into the conduct of the General elections of the Academic Staff Union of Universities(ASUU), Bauchi State University Chapter and allow the Independent Electoral Committee duly constituted by the Congress of the Union to conclude the election process lawfully initiated and in consonance with the Constitution of the Union forthwith as enshrined in Article 14 (2a and b) and Appendix II of the Constitution of the union (As Amended in 2018).
5. AN ORDER OF MANDATORY INJUNCTION compelling the 4th to 8th Defendants to immediately vacate office as leaders of the Academic Staff Union of Universities (ASUU), Bauchi State University Chapter having over stayed their Constitutional terms without any constitutional backing or reason forthwith as provided for by Article 10(vi) of the Constitution of the Academic Staff Union of Universities (As Amended in 2018).
6. AN ORDER DIRECTING the 1st, 2nd and 3rd Defendants not to recognize the 4th to 8th Defendants as Chairperson, Secretary, Assistant Secretary, Financial Secretary and Welfare Officer of the Academic Staff Union of Universities (ASUU), Bauchi State University Chapter.
7. AN ORDER DIRECTING the 9th to 12th Defendants being the Independent Electoral Committee duly constituted by the Congress of the union to immediately conclude the election process lawfully initiated and in consonance with the Constitution of the Union forthwith as enshrined in Article 14 (2a and b) and Appendix II of the Constitution of the Union (As Amended in 2018) which provided for the Supplementary Rules on Branch election.
The Originating Summons is supported by an Affidavit of 7 paragraphs deposed to by one Mohammad Lawan Bala, Litigation Secretary in the Law Firm of the Claimant’s Solicitors. Attached to the Supporting Affidavit are 7 Exhibits marked asA – G respectively.
Exhibit A: Copy of the Constitution of the Academic Staff Union of Universities (ASUU) as amended in 2018,
Exhibit B: Copy of the Branch Electoral Committee 2021 General Schedule for Branch Election,
Exhibit C: Copy of the Branch Electoral Committee Bulletin tagged Announcement issued on the 18th day of September, 2021,
Exhibit D: Copy of the Branch Electoral Committee published List tagged Display of Screened and Cleared Nominees, Proposers and Seconders,
Exhibit E: Copy of Petition dated 24th day of October, 2021 by Comr. Ismail Haruna and the 6th Defendant written to the Branch Electoral Committee via its Chairman,
Exhibit F: Copy of Petition dated 24th day of October, 2021 by Kabir Hassan Sambo written to Branch Electoral Committee and received by the 12th Defendant on the 25th day of October, 2021,
Exhibit G: Copy of Dr. Ibrahim Gambo’s Letter of Resignation.
The Claimant also filed along with the with the Originating Summons a Written Address containing the arguments on the issues for determination formulated by the Claimant.
In addition to the above, the Claimant filed a Further and Better Affidavit of 5 paragraphs dated the 17th of February, 2022, deposed to by same Deponent of Muhammad Lawan Bala and accompanied with a Written Address wherein the Claimant further formulated two issues for determination thus:
1. Whether from the processes filed in this suit this Honourable Court has the requisite Jurisdiction to determine this suit and whether having regard to the provision of Article 5 of the Constitution of the Academic Staff Union of Universities, this suit is properly constituted?
2. Whether or not paragraphs 10, 12, 33, 34, 35, 40, 41, 42, 43, 44, 47 and 48 of the Defendants Counter Affidavit are liable to be struck out for being argumentative and conclusion as same offend Section 115 of the Evidence Act, 2011?
The Defendants entered a conditional appearance and jointly reacted to the originating processes vide a Counter Affidavit of 45 paragraphs dated 15th of February, 2022 and deposed to by the 4th Defendant on record on behalf of all the Defendants. Attached to the Counter Affidavit are Exhibits A1, B, C and D. Exhibit A1 is a copy of Court Order. Exhibit B is a copy of Notice of Discontinuance dated 4th January, 2022 and filed on the 5th January, 2022 in the High Court of Bauchi State, Azare Division in Suit No: BA/KJD/36M/2021; Between Dr. Ibrahim Danjuma v. The Incorporated Trustees of the Academic Staff Union of Universities (ASUU) & 11 Ors. Exhibit C is a copy of Claimant’s and seven others’ Letter dated 18th November, 2021 written to the 4th Defendant while Exhibit D is a copy of 4th – 8th Defendants’ Reply Letter dated 24th November, 2021 written in response to Exhibit C.
The Defendants filed along with the with the Counter Affidavit, filed a Written Address wherein they formulated three issues for determination by this Honourable Court, thus:
2.0. FACTS AS LED BY PARTIES
The facts relied on by the Claimant is as contained in the Affidavit in Support of the Originating Summons as well as the Further and Better Affidavit filed by the Claimant in this suit. Claimant as an active and financial member of the Union and also a Nominee into the office of the Vice Chairperson in the aborted election is aggrieved that the 4th to 8th Defendants continue to steer the affairs of Bauchi State University Gadau Branch of the 1st Defendant despite their tenure of office had elapsed since the 5th day of June, 2020 and without any lawful reason. That the Congress of the Union had on 26th day of August, 2021 met and constituted a 5-member Independent Electoral Committee which include the 9th, 10th, 11th, 12th and one Dr. Ibrahim Gambo to conduct the general elections into the offices of the Branch of the Union and consequent to which the Electoral Committee swung into action putting all necessary processes in place for the election including the time frame for the submission of petition/complaint by any aggrieved member. That it was long after the close of receipt of such petitions, some members wrote to the Electoral Committee over its screening exercise and sought for some contestants to be disqualified on certain grounds. That the said petitions, observations or criticism were well presented to the Electoral Committee outside the window provided for the members to petition any of the process of the election and that all the petitions and or complaints written at that stage were done long after the close of receipt of such petitions or complaints but the 2nd and 3rd Defendants interfered and pressured the 9th to 12th Defendants into postponing the election in the night of its eve i.e on the 17th day of November, 2021 without any cogent reason. That the postponement was ill motivated in order to truncate the smooth transition of power in the Union at the expense of all members of the Union. That the 2nd and 3rd Defendants have interfered in bad faith to truncate the election and that made one of the members of the electoral committee by name Dr. Ibrahim Gambo to resign, that the reasons for his resignation was attributed to high level interference from some personalities which hampered the independence of the committee. That it was after the failure of the 4th – 8th Defendants to constitute Caretaker Committee for the purpose of transition that he filed the action against the Defendants. Aggrieved by all these development, the Claimant has brought this Originating Summons for this Honourable Court to construe the governing constitution of the 1st Defendant’s Union vis-à-vis the action of the 2nd and 3rd Defendants as well as the 4th – 8th Defendants.
On their part, the Defendants’ position is that the 4th - 8th Defendants have organized elections two times into their offices in line with the provisions of the Constitution of the Union but the Claimant has refused to allow the process to go on smoothly. That this is the second time the Claimant filed action against the Defendants on election matters of the Union without even exhausting internal mechanisms which is contrary to the Constitution of the Union. That the 1st Defendants’ Constitution did not make provision for the constitution of an interim leadership especially when elections can be practically conducted and there are adequate mechanisms to address all disputes in the Union. That the stay in office of the 4th - 8th Defendants is lawful and within the confines of the law. That the action of the Claimant including the filing of this case against the Defendants is not in line with the grievance procedure of the Constitution of the Union. That the 2nd and 3rd Defendants never interfered directly or indirectly with the conduct of the election in issue in any way. That the 2nd and 3rd Defendants never pressurized the 9th - 12th Defendants to postpone the election in issue on the eve of 17th November, 2021. That there are good reasons why the election was postponed and it was to ensure compliance with the Constitution of the Union. That the 2nd and 3rd Defendants did not at any time pressurized Dr. Ibrahim Gambo directly or indirectly on matters of the election in his capacity as a member of the Electoral Committee or in any other capacity and their names are not mentioned in Exhibit G.
3.0. THE SUBMISSIONS OF THE CLAIMANT
Learned Counsel to the Claimant relied on all the depositions and attached Exhibits of the Affidavit in Support as well as the Further and Better Affidavit and adopted the Claimant Written Address in support of the Originating Summons as well as the Written Address in support of the Further and Better Affidavit as his oral submission and legal argument to urge this Honourable Court discountenance the arguments of the Defendants and resolve all the issues formulated for determination in favour of the Claimant to grant the reliefs sought.
On question 1 and issue 1, Learned Counsel submitted that the 1st, 2nd, and 3rd Defendants by virtue of the provisions of Article 14 (2)(a)(i) & (ii) and (b) and Appendix II of the Constitution of the Academic Staff Union of Universities (As Amended in 2018) which provided for the supplementary Rules on Branch election do not have the power to interfere and/or direct the postponement of a Branch election barely less than 24 hours to the said election.
Learned Counsel contended that the above provisions are what set out or laid down a formidable foundation for the election of the Branch Executive by the Constitution of the Academic Staff Union of the Universities and no provision was made whatsoever empowering the 1st, 2nd & 3rd Defendants to interfere with the election and the operation of the Electoral Committee of a Branch. Moreover, Learned Counsel argued that Appendix II at page 51 of the Constitution thereof provided for the Supplementary Rules on Branch elections and that no where it is provided that the 1st, 2nd & 3rd Defendants or any of their officers or subordinate were empowered to interfere or disrupt a peaceful election process and operation of the 9th – 12th Defendants Electoral Committee of a Branch.
Learned Counsel thus urged this Honourable Court to see merit in resolving this issue in favor of the Claimant and hold that the 1st, 2nd, & 3rd Defendants lack any power to interfere and/or postponed the general election of his Branch in this case.
On question 2 and issue 2, Learned Counsel submitted that having regards to the mandatory provision of Article 10(vi) of the Constitution of the Academic Staff Union of Universities (As Amended in 2018), the 4th - 8th Defendants’ term of office have elapsed as leaders of the Academic Staff Union of Universities, Bauchi State University Chapter, having assumed their respective offices sometime in June, 2018.
Learned Counsel contended that by the above mandatory provision, the term of office is two years, and being that the 4th – 8th Defendants have been in office since 6th of June, 2018, the term has long expired at least on 5th of June, 2020 and that nowhere did the Constitution of the 1st Defendant provide for elongation of tenure of office. As such, there is no basis for the continuous illegal holding over of office by the 4th - 8th Defendants. Learned Counsel submitted that the above provision is mandatory by the use of the word “SHALL”. He cited and relied on the judicial authorities of Shettima v Goni (2011) 18 NWLR (Pt 1179) 413 at 454 paras A-B, Ratio 5, Minister of Petroleum Resources & Anor v. S.P.D.C (2021) LPELR-55436 (CA) and Aiyewumi & Ors v. Owoniyi & Ors (2021) LPELR-54565 (CA).
Learned Counsel thus urged this Honourable Court to resolve this issue in favour of the Claimant and mandate the 4th – 8th Defendants to vacate the offices, their term of office having elapsed and there being no room for elongation under the Constitution of the Union.
On question 3 and issue 3, Learned Counsel submitted that having regard to the provision of Appendix II (xxv) of the Constitution of the 1st Defendant, the 9th - 12th Defendants cannot accept, treat and or give credence to any petition, observation or criticism made by any member of the Union outside the prescribed period for the receipt of the said petitions, observation or criticism in the 2021 General Election Schedule supplied and duly authenticated by the Branch Electoral Committee.
Learned Counsel argued that the provision of Appendix I of the Constitution of the 1st Defendant provides for code of practice section 12 of which made it incumbent on all members including the 1st – 3rd Defendants to uphold and not to obstruct the conduct of a free and fair election. Learned Counsel submitted that based on the equitable principle of volenti non fit injuria, all members of the Union were mandated going by the 2021 General Election Schedule contained in Exhibit B attached to the Claimant’s Affidavit in Support, opportunity was given to all members to file petitions and serve with the Electoral Committee objections against any of the candidate/nominee.
Learned Counsel referred to Exhibits E, F, and G attached to the Claimant’s Affidavit in Support to note that the said petitions were brought outside the prescribed timeframe by the petitioners, having filed same on or after the 24th of October, 2021 long after the 7th - 14th October, 2021 the window for the receipt of petitions on proposers, seconders and the nominees which no individual or group has the authority to extend same. Learned Counsel argued that this undue delay amounts to waiver of the right to make the petition.
On consequence of waiver, Learned Counsel cited and relied on the judicial authority of Ariori & Ors v. Muraino Elemo & Ors (1983) 1 S.C 13. He also relied on the judicial precedents of Ezomo v. Oyakhire (1985) LPELR-1216 (S.C) and Dakwak v. Jos South Local Government Council (2021) LPELR-55143 (CA) to submit that the petitioners including the 6th Defendant can no longer be heard that their belated petition was not treated. Learned Counsel argued that at that stage, even if any member has a meritorious petition or complaint over the conduct of the election, same would only be entertained by the Independent Committee to entertain electoral complaint as enshrined in Appendix II Section XXV of the Constitution of the 1st Defendant. Learned Counsel urged this Honourable Court to direct the 9th to 12th Defendants to proceed and conclude the conduct of the election earlier commenced at Bauchi State University Gadau.
4.0. THE SUBMISSIONS OF THE DEFENDANTS
Learned Counsel to the Defendants formulated 3 issues for determination in the written address in support of the counter affidavit thus:
1. Whether having regard to the facts and circumstances of this case, this Court has jurisdiction to entertain the case.
2. Whether having regards to the facts and circumstances of this case, it is proper for the Claimant/Applicant to commence this action by way of Originating Summons.
3. Whether it will not amount to speculation to grant prayers 1 and 4 of the Claimant/Applicant
On Issue 1, Learned Counsel cited and relied on the judicial precedents of Abbas v. Tera (2013) 2 NWLR (Pt 1338) 284, Madukolu v. Nkemdelin (1962) 2 SCNLR 341, and RASSEK Vs A.C.B. LTD (1993) 5 NWLR (Pt 312) 352 to list the conditions precedent before a court can assume its jurisdiction over a matter brought before it. Learned Counsel submitted that in this instance there are conditions precedent for the commencement of this action not fulfilled by the Claimant as well as some features that prevent this Court from exercising its jurisdiction to entertain this matter. Learned Counsel referred to Article 5 under Appendix I of the Constitution of the 1st Defendant and submitted that the Claimant did not exhaust this internal grievance procedure before rushing to this Court.
Learned Counsel submitted that this action is therefore premature since it deprived the Defendants of the opportunity to investigate the Claimant’s complaint in line with the provision of the Constitution of the 1st Defendant, and much more so when the Claimant did not show by his affidavit evidence that he complied with the provisions of Article 5 above and that the Defendants have refused to handle his complaint in line with the procedure provided for under the Article 5 of the Constitution of the 1st Defendant. Learned Counsel argued that even Exhibit B written to the Defendants was promptly responded to in Exhibit C, and as such the Claimant has not shown the reason for bringing this action prematurely.
Learned Counsel also referred to the depositions in paragraphs 15,16,17,18,19,20,21,22,23,24,25 to 26 of the Counter Affidavit and submitted that the Claimant is in flagrant violation of Article 5 of the Constitution of the 1st Defendant and as such, the Claimant should not be allowed to invoke the provisions thereof. Learned Counsel argued that the Claimant deliberately failed to bring the fact of this breach to the notice of this Court by only presenting the non-contentious facts while leaving out the contentious ones just to bring his action within the originating summons procedure. Learned Counsel relied on Dagogo Vs Attorney General of Rivers State (2002) FWLR (Pt 131) 1956 at 1981 (CA) to the effect that this Court has a duty to hold that originating summon is not the appropriate mode of commencing the action. Learned Counsel urged this Honourable Court to hold that it is robbed of jurisdiction to entertain this Suit.
On issue 2, Defendants Learned Counsel submitted that this suit, being very contentious with highly disputed facts which will require oral evidence, is improperly constituted under the originating summons procedure. Learned Counsel referred to paragraphs 3(l)(x)(y)(z) and 4 of the Claimant’s Affidavit in support vis-à-vis paragraphs 27 to 36 of the Counter Affidavit and submitted that there is no way the issues raised in those averments can be resolved without calling oral evidence in a proper trial.
Learned Counsel relied on Federal Polytechnic, Ida v. Onoja (2003) FWLR (Pt 146) 931 (CA) and submitted that the law is that, where the affidavit is conjectural, leaving the court to do guesswork, originating summons procedure would be said to have been wrongly used. Learned Counsel contended that the Claimant has not filed a verifying affidavit to verify the facts deposed in the Affidavit in support and it is trite that where originating summons is filed without a verifying affidavit to verify the facts alleged in the Summons, such originating summons is incompetent and must be struck out. Learned Counsel relied on the judicial precedents of Adeleke v House of Assembly Lagos State (2003) FWLR (Pt 146) 925 (SC) and Dalhatu Vs Attorney General of Katsina State (2008) ALL FWLR (Pt 405) 1651 at 1676-1677 (CA).
Learned Counsel rode on the back of the provisions of Order 3 Rule 17(1) of the Rules of this Court and submitted that originating summons procedure cannot be used for hostile proceedings or where there is likelihood of dispute as in this case. Learned Counsel cited the cases of Michael v Mima Project Ventures Limited (2003) FWLR (Pt 140) 1780 (CA); Kayemo v House of Assembly, Lagos State (2003) FWLR (Pt 146) 925 (SC), Oyewumi v Osunbade (2007) ALL FWLR (Pt 368) 1004 (SC), Atago v. Nwuche (2013) 3 NWLR (Pt 1341) 332 (SC) and Ejira v. Idris (2006) ALL FWLR (Pt 318) 646 (CA).
Lastly, Defendants Learned Counsel submitted that prayers 1 and 4 of the Applicant are not part of the sole or principal questions brought under the Constitution of the Union and moreover, there are no evidence to support the depositions on the basis of which they can be granted and there is no way they can be established unless through oral evidence. Learned Counsel contended that this Honourable Court will be engaging in speculation and conjecture if it should grant those prayers under this circumstances. Learned Counsel relied on Federal Polytechnic, Ida v. Onoja (2003) FWLR (Pt 146) 931 (CA).
Defendants Learned Counsel adopted the arguments canvassed with respect to Issue 2 above to apply mutatis mutandi to Issue 3 and submitted that it will amount to speculation for this Honourable Court to grant Prayers 1 and 4 of the Claimant without evidence adduced by the Claimant to establish the facts upon which it is predicated. Learned Counsel urged this Honourable Court to dismiss the suit accordingly.
5.0. CLAIMANTS REPLY ON POINT OF LAW
In his further Written Address, Learned Counsel to the Claimant submitted on point 1 thereof that this Honourable Court has the requisite jurisdiction to hear and determine this matter, notwithstanding the provisions of Article 5 of the Constitution of the 1st Defendant. Learned Counsel referred to Order 2 Rule 2(3) of the Rules of this Honourable Court, Section 254(C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and Section 7(1)(c) of the National Industrial Court Act, 2006, and submitted that this suit falls within the purview of the requirements of the Nigerian Constitution, the Act establishing this Court and the Rules of this Court, being a suit bordering on the interpretation of a written instrument, the Constitution of the 1st Defendant, a Union. Learned Counsel argued that by the above provisions, any person claiming any legal or equitable right in a case where the determination of the question of construction whether he is entitled to the right depends upon a question of construction of an enactment/instrument, may apply by originating summons for the construction of such question and for declaration as to the right claimed.
Learned Counsel relied on the judicial precedents of Jumbo v. Sasime & Ors (2019) LPELR-48668 (CA) and Okezie & Ors v. CBN & Ors (2020) LPELR-50995 (SC) to the effect that the settled position of the law is that an originating summons procedure is adopted where the sole or principal questions to be decided is the construction of a written law, statute, documents, contracts or agreement or where there is likely no or any substantial dispute of law or any deed, will, contract or other document or some question relevant to the determination of the issue in controversy such as this suit.
Learned Counsel contended that by the provision of Article 5(iii) of the Constitution of the 1st Defendant, any supplementary rules which contradict, derogate from or are inconsistent with the provisions of the Constitution is to that extent null and void and of no effect. Learned Counsel submitted that Article 5(viii) of Appendix I, the Code of Practice, which is a supplementary provision relied on by the Defendants to contend that the Claimant did not exhaust internal dispute mechanism, cannot override the provision of Article 5(iv) of the Constitution of the 1st Defendant which gives member the right to initiate action at his or her own expense in connection with (and for the enforcement of) any provision of the Constitution. Learned Counsel urged this Honourable Court to hold and declare that Article 5(viii) of Appendix I is to this extent of its derogation and inconsistency with the main provision of the Constitution null and void. Learned Counsel urged the Court to hold that the Claimant has rightly initiated this action by virtue of Article 5(iv) of the Constitution of the 1st Defendant.
On point 2, Claimant Learned Counsel submitted that paragraphs 5, 26, 28, 32, 37, 40 and 43 of the Defendants’ Counter Affidavit offend the provision of Section 115(1) and (2) of the Evidence Act, 2011 for containing extraneous matter by way of legal argument and conclusion and ought to be struck out. Learned Counsel relied on the judicial authority of Emeka V. Chuba-Ikpeazu (2017) 15 NWLR 1589 at 356, Ratio 15.
Learned Counsel for the Claimant contended that in an action commenced by Originating Summons, the affidavit in support performs the dual functions of a pleading and evidence, and in fact the affidavit evidence is the only evidence on which the court can base its decision. Learned Counsel argued that by those offensive paragraphs of the Counter Affidavit, the Defendants drew conclusion that the Claimant’s deposition is not supported by evidence, the Defendants knowing full well that the affidavit takes the place of the evidence in this matter. Relying on the judicial authority of Zakirai v. Muhammad (2017) 17 NWLR (Pt 1594) Ratio 12, Learned Counsel submitted that it is trite that where facts are deposed to in an affidavit, the purpose of a counter affidavit is to contradict those facts and not merely to set up a distinct fact as a defence as the Defendants did by their arguments in paragraphs 18 and 37 of their Counter Affidavit. Learned Counsel urged this Honourable Court to strike out the offending paragraphs of the Counter Affidavit and resolve all the issues for determination in favour of the Claimant to grant the reliefs sought accordingly.
6.0. THE COURT’S DECISION
After careful consideration of the processes filed with the submissions of Learned Counsel for both sides in their respective written addresses with the authorities cited, this Court shall first and foremost address the frontal attacks launched by the Defendants against its jurisdiction in their first and second issues submitted for determination, the outcome of which will determine whether this Court shall proceed to determine the Questions submitted for determination by the Claimant along with Issue 3 of the Defendants. The two issues are set out herein Sunder thus:
1. Whether this Suit is not properly commenced by Originating Summons?
2. Whether this Honourable Court is not robbed of jurisdiction to entertain this suit as presently constituted on the contention of lack of exhaustion of internal dispute resolution mechanism of the 1st Defendant?
If the above issues are resolved against the Defendants, this Court will address the issue of the propriety or otherwise of the depositions in paragraphs 5, 26, 28, 32, 37, 40 and 43 of the Defendants Counter Affidavit vis-à-vis the provision of Section 115 of the Evidence Act, 2011.
7.0. RESOLUTION OF ISSUES
The Defendants also argued that considering the facts and circumstances of this case, it is improper for the claimant to came in way of originating summons. Citing paragraphs 3 (i) (x) (v) (z) 4 of the Affidavit in support of the originating summons and paragraph 27 – 36 of the counter affidavit. That no verifying affidavit was filed by the claimant in support of the facts deposed to at paragraph 3 (i) (x) (y) and (z) and 4 of the affidavit in support of the originating summons. The claimant’s reaction in this regard from the written address in support of the further affidavit is that O2 R3 of the extent rules of the Court, section 256 of the CF-RN 1999 and section 7 (1) (c) of the NICA, 2006 the claimant is empowered to apply via originating summons for this Court to determine the questions set out in the suit predicated on the construction of the constitution of the Academic Staff Union of Universities the 1st Defendant therein.
Now, it is settled law that the originating summons procedure is used to determine questions of construction arising under a deed, will or other written instrument or for the interpretation of statutes. Originating summon procedure is best suited for cases where there are no substantial disputes of facts or likelihood of facts. It is not the law that every matter commenced by originating summons procedure are devoid of disputes as long as the dispute in the matter do not affect the live issues in the matter.
The law is that the dispute of facts must be substantial, material, affecting the live issues in the matter; where disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. After al there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that give rise to Litigation. See Sani V. Kogi State House of Assembly & Ors (2019)LPELR-46404 (SC).
It is also the law that where the reliefs sought in an originating summons are predicated on facts, such should be brought before the Court by affidavit evidence. It is only then that the Court can know whether the facts are non-contention so as to determine the property of commencing the proceeding by originating summons. See Keyamo V House of Assembly, Lagos State (2002) LPELR (SC). In the instant case, the Claimant averred at paragraph 3 (x) and (y) that the 2nd 3rd Defendants have interfered with election process by presuming the 9th to 12 Defendants into postponing the election in the right of its one this forms the basis of reliefs 1 and 4 in the originating summons in this case, it is what doubt that these reliefs one based on facts have by the claimant which facts have been denied by the Defendants at paragraphs 27, 28, 29, 30, 31, 33 and 36 of the Defendants counter affidavit in response to the originating summons. Ordinarily, Claimant ought to have depose to an affidavit to verify those allegation of facts in support of reliefs 1 and 4 but the claimant did not do so. The fact having been denied by the Defendants are now in dispute. The question to ask at this junction is, is it the law that every matter commenced by originating summons must be devoid of dispute? I think not: the only condition is that the dispute must not affect the live issues in the matter. See Sani V Kogi State House of Assembly (supra). Another question to ask is: did the alleged interference of the 2nd & 3rd Defendants affect the live issues in this matter? Live issues in a case are propositions of law or fact which is/are so cogent, weighty and compelling that determination in forum of one party will entitle him to the decision. The corollary to this that Court has no business using its precisions judicial time to answer merely academic question put before it by Litigants see Mr. Bulus Pam Dareng V First Bank of Nigeria Plc (2020) LPELR-51492 (CA). That was the problem of whether the 2nd and 3rd Defendants have interfered with the conduct of the Election in the matter. The question is in my view academic given that it is not in dispute that the tenure of the 4th, 5th, 6th, 7th and 8th Defendants has elapsed, it is also not in dispute that Electoral Committee was constituted, equally not in dispute is the fact that election scheduled to hold on 18th of November, 2021 but was postponed on November 17, 2021.
Now, whether or not the 2nd 3rd Defendants’ have interfered with the conduct of the lection remains academic and does not affect the live issue between the parties in my view I find I so hold. It follows therefore that failure of the Claimant to depose to a verifying affidavit in support of facts forming the basis of reliefs I and 4 of the originating summons have nothing to do with the live issues in this claimant’s case. I so hold. See Dareng V F.B.N (2020) LPELR-51492 (CA), Odutola & Ors Mabogunye (2013) LPELR-19909 (SC). Court should restrict hearing to the consideration of live issues only.
Having identified the material and live issues, this Honourable Court will consider the next question which is whether the contentious or disputed facts, which the Defendants have submitted required further or oral evidence or proper trial, will affect the resolution of the live issues or whether the live issues can be safely completely and conclusively resolved upon the construction of the governing instrument or document submitted before this Honourable Court. All the meaningful contention of the Defendants bothers on the issue which this Honourable Court held to be academic in the earlier part of this judgment. This academic issue also affects Prayers 1 and 4 of the Originating Summons. I shall come to this at the later part of this Judgment. I find that this dispute of facts between the parties herein is not material to the substantial and live issues before this Honourable Court. I so hold.
On the second yardstick, whether the live issues can be exhaustively and conclusively determined upon the construction of the Constitution of the Union, it is very clear that both the Claimant and the Defendants relied on the Constitution and other governing Instruments of the Union for court’s interpretation to determine the rights of parties. All the provisions that call for court interpretation are not outside but within the Constitution and other instruments of the Union. This Honourable Court is called upon to determine whether the 4th – 8th Defendants can continue to hold onto their office, their tenure having expired and whether election should be conducted to the offices based on the provisions of the Constitution of the Union. I am of the view that these live issues do not require any oral evidence or full trial but can be conclusively determined upon the construction of the instruments of the Union. I so hold.
This case is in no doubt a proper scenario where an originating summons can be utilized for the interpretation of Constitution binding between parties to determine the rights of parties accordingly. The presence of dispute in facts which is minor, inconsequential, and infinitesimal to the live issues for determination in this action do not render the use or employment of originating summons in this instance inappropriate or improper. This issue is therefore resolve in favour of the Claimant and against the Defendants. I find and I so hold.
On whether the Grievance Procedure provided under Appendix I to the 1st Defendant’s Constitution which the Claimant did not exhaust before filing this suit has robbed this Court of jurisdiction to entertain this Suit, the law is trite that the constitution of an Association like the 1st Defendant’s herein, is the organic instrument which confers power and also creates rights and limitations. It regulates the affairs of the members, binding the members by its provisions. It is the supreme guide for all its activities, where the constitution lay down a procedure by which certain actions must be taken, those actions cannot be said to have been properly taken without the letters of the constitution. See Imonikhe V. Attorney General of Bendel State (1992) 6 NWLR Pt. 248 pg396 at Rg411 Para B.C; C.PC V. Senator Yakubu Garba Lado (2011) LPELR 3997 and Mohammed & Ors V. Sokoto (2019) LPELR-49618 (CA).
There are few provisions that require the attention of this Honourable Court in this regard. The main provision of the 1st Defendant’s Constitution at Article 5(iv) thereof states thus:
“Any member shall have the right to initiate action at his or her own expense in connection with (and for the Enforcement of) any provision of this Constitution”, Article 5(iii) provides that “Any supplementary rules (such as the Code of Practice or those made by a Branch) which contradict, derogate from or are inconsistent with the provisions of this Constitution, shall to that extent be regarded as null and void and of no effect.”
However, the same Constitution provides in Article 22 thereof thus
“All officers and staff of the Union shall observe and conform to the Code of Conduct specified in the Appendix I to this Constitution.”
Whereas in Appendix 1, Article 5 of the Code of Practice provides for the Grievance Procedure thus:
i. Any aggrieved member(s) shall write to the Branch Executive in the first instance, stating clearly his or her grievance. The Branch Executive shall respond within two weeks of the receipt of the letters.
ii. If the complaint is not addressed to the satisfaction of the complainant, he or she shall be free to bring the complaint before the branch congress.
iii. For the purpose of (ii) above, the Chairperson shall summon the Congress within 14 days of the receipt of the expression of dissatisfaction of the member(s).
iv. Where the complaint is against an officer of a Branch, the EXCO shall first try to resolve the matter failing which it shall forward the complaint to the appropriate committee of Congress who shall make its report to Congress within 14 days of the receipt of the compliant from the EXCO.
v. Where the complaint is against the Chairperson of the Branch, the finding and recommendation of the Congress shall be forwarded to NEC for confirmation or otherwise.
vi. Where the complaint is against a National Officer in a Branch, such complaints shall be forwarded to NEC for necessary action.
vii. In all cases, other than (v) and (vi) above, the member(s) shall have right of appeal to NEC, whose decisions shall be final.
viii. No Branch(es) or member(s) shall institute any legal proceedings against the Union (or any Branch) in any court of law without exhausting the domestic remedies provided for in the Grievance Procedure contained in this Constitution or any other rule and procedure as may be provided by NEC or the Branch congress as the case may be.
Article 6 of the Code of Practice provides the penalty for the breach of the Code. It states that sanction for breaches of this Code shall be a fine, suspension of membership, affiliation.
The Defendants have contended that the Claimant did not exhaust the above Grievance Procedure which by Article 22 is binding and mandatory for every member to comply with. The Claimant has argued otherwise that the provision of Article 5(iv) supersedes this Grievance Procedure enshrined as a supplementary provision to the Constitution and by Article 5(iii), and where there is conflict, the Grievance Procedure must give way for Article 5(iv) to pass.
The question is what is the status and nature of the internal dispute mechanism in this case. It is now trite that parties cannot by an agreement or instrument or private act oust the jurisdiction of the court of law except in cases of arbitration clause or other alternative dispute resolution mechanism and in such cases it only put the jurisdiction of the court in abeyance until the internal remedies or condition precedent are fully exhausted. See, BPE v Assurance Bank Plc & Ors (2009) LPELR – 3896 (CA), A.B.U. v VTLS Inc. (2020) LPELR – 52142 (CA), Sonnar (Nigeria) Ltd & Anor v Partenreedri M. S. Nordwind Owners of the Ship M. (1987) LPELR – 3494 (SC).
Also, it is settled beyond controversy that where parties have agreed to an internal dispute procedure for resolving their dispute before approaching the court, that procedure becomes a condition precedent, the exhaustion of which is fundamental, before any of the party can approach the Court, exempting where the other party waives his right to insist on the procedure. See, APC v Aguma & Ors (2020) LPELR – 52574 (CA), Sino-Afric Agriculture & Ind. Company Ltd & Ors v Ministry of Finance Incorporation & Anor (2013) LPELR – 22370 (CA), Alabi & Ors v Kwara State Polytechnic & Anor (2012) LPELR – 9213 (CA).
I have taken time to look at the Grievance Procedure in this instance and cannot but disagree that same ousted the jurisdiction of this Court and neither does it conflict with the provision of Article 5(iv) of the Constitution. While Article 5(iv) of the Constitution specifically provides for the member’s right to approach the Court for protection and enforcement of the provisions of the Constitution, the Grievance Procedure provides for the internal/domestic procedure to be taken before a court action can be taken out by aggrieved member(s) against the Union. In my humble but firm view, there is nothing unconstitutional or inconsistent in the operation of a domestic dispute resolution mechanism so long as it does not bar member from accessing the court after the exhaustion, failure or impossibility of such internal mechanism. The doctrine is thus subject to the maxim lex non cogit ad impossibilia where compliance has become impossible due to the non-existence or non-constitution of the body to attend to the issue. See, Ebe v COP (2008) LPELR – 984 (SC) 10 paras B – E, Obayuwana v Gov Bendel State & Anor (1982) LPELR – 2160 (SC) 29 – 30 paras D – A, Sodeke v NDLEA (2021) LPELR – 54665 (CA) 9 – 11 paras D – E.
Having examined the peculiar nature and circumstances of this case, the Grievance Procedure requires the aggrieved member to write the complaint to the Branch Executive, whereas in this case is the Claimant’s argument that there is no valid existing Branch Executive which can validly and legally entertain such petition or complaint and the Defendants obviously admitted that the tenure of 4th – 8th Defendants has elapsed. In my view, this failure and collapse complained about is sufficient reason for the provision of the Grievance Procedure to be put in abeyance for the operation of Article 5(iv) of the Constitution to sail. To bar the Claimant in this instance upon insistence on compliance with the Grievance Procedure which has no validly existent body or machinery to operationalize, is tantamount to deprivation of the Claimant’s right under Article 5(iv) of the Constitution as well as under the Constitution of the Federal Republic of Nigeria, 1999 as amended.
Another reason is while the Grievance Procedure is a general provision governing resolution of dispute in the 1st Defendant Union while Article 5(iv) of the Constitution is a specific provision for the enforcement of the provision of the Constitution. Definitely that provision intended to derogate from the general grievance procedure when it used the words “shall have the right” and further specially provide its specific subject, “enforcement of the provision of the Constitution.” The maxim is generalia specialibus non derogant, specialia generalibus derogant. In Ardo v Nyako & Ors (2014) LPELR – 22878 (SC) per Walter Samuel Nkanu Onnoghen, JSC at 47 paras A – D, the apex court held thus:
“It is the law that in considering situations where general and special provisions are seen to apply to a subject matter, the law takes the course which does not permit a general provision to derogate from a special provision. It follows that where a subject matter is covered by both general and special provisions, the special provision applies to it in such a way that one general provision does not derogate from its effect.”
It is not one of the canons of interpretation for the Court to merely adopt the wishful thinking of a litigant in its interpretative jurisdiction Lord Goddard, CJ in Barnes V Jarris (1953) I WLR 649 at 652 had advocated that a Court, in construing a statute or document, must apply certain amount of common sense. See Gana V. SDP & Ors (2019) LPGLR-47153 (SC). Applying the earlier principle above and common sense to the interpretation of the relevant constitutional provisions, I find that the instant case having to do with the breach of the constitution of the 1st Defendant, is excluded from the application of section 5 of Appendix I to the 1st Defendant’s constitution and I so hold. The claimant is therefore right in approaching the Court. In other words, the specific provision of Article 5(iv) of the Constitution supersedes the general provision of the Supplementary Rules in Appendix I of the 1st Defendant’s Constitution. See also, Orubu v NEC & Ors (1988) LPELR – 2776 (SC) 59 paras F – G, Aqua Ltd v Ondo State Sports Council (1988) LPELR – 527 (SC) 19 – 20 paras E – A and FMBN v Olloh (2002) LPELR – 1271 (SC) 11 – 13 paras E – A.
This issue is also resolved against the Defendants. I so hold.
Regarding whether the depositions in paragraphs 5, 26, 28, 32, 37, 40 and 43 of the Defendants Counter Affidavit offended the provision of Section 115 of the Evidence Act, 2011, I have intimately with judicial microscope looked at the said depositions. Section 115(1) – (4) of the Evidence Act, 2011 provides that every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion. When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief. When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.
I shall now take the liberty to reproduce the said paragraphs of the Counter Affidavit below:
“5. That I know as a fact that the actions of the Claimant/Applicant towards the 1st Defendant/Respondent and its branch at Bauchi State University, Gadau does not in any way, portray him as an astute member of the 1st Defendant/Respondent.
26. That I know as a fact that paragraph (x) of the affidavit in support of Originating Summons is misleading and not correct at all.
28. That I know as a fact that the Claimant/Applicant has not supported his deposition in paragraph (x) of the affidavit in support of Originating Summons with any evidence whether in the form of document or otherwise.
32. That I know as a fact that paragraph (y) of the affidavit in support of Originating Summons is misleading and not correct at all.
37. That paragraph 4 of the affidavit in support of Originating Summons is misleading and not correct completely.
40. That paragraphs 5 and 6 of the affidavit in support of Originating Summons are misleading and not correct completely.
43. That Ahmed Salisu Garba Esq counsel informed me while taking my statement on the 11th of February, 2022 on this cases at about 3pm at my office at the Yuli campus of Bauchi State University, which information I believed to be true and correct as follows:
a. That this case is incompetent and this court lacked jurisdiction to entertained it.
b. That the Claimant/Applicant did not exhaust the internal mechanisms for resolving dispute in line with Article 5 of the constitution of the Union.
c. That Article 5 of the constitution of the Union is not an ouster clause.
d. The suit is contentious in nature and there is a substantial dispute on the material facts of the case and therefore cannot validly be commenced by Originating Summons
e. That some material facts are mere speculations without any evidence to support.
f. There is no verifying affidavit to verify the depositions.”
The Learned Counsel to the Defendants’ has argued that the above depositions amount to legal argument and conclusion. It is thus very important to understand what legal argument or conclusion is in the law of affidavit evidence. The infallible court in the decided case of Bamaiyi v State & Ors (2001) LPELR – 731 (SC) set out the test for identifying extraneous matters in an affidavit at 26 to 27 paras D – C: thus:
“The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.”
See also PDP v ANDP & Ors (2020) LPELR – 50993 (CA) 8 – 12 paras C – B, Agip (Nig) Plc v Ossai & Ors (2016) LPELR – 40976 (CA) 16 – 18 and Enwo-Igariwey & Anor v Anozie & Ors (2018) LPELR – 45766 (CA).
I have married the said paragraphs with the factual test catalogued above to discover if the paragraph has flouted or respected the law. It is my humble view that paragraphs 5, 26, 28, 32, 37, 40 and 43 of the Counter Affidavit are not only legal arguments which ought to be left for Counsel to urge upon the Court but also inferences and conclusions which is the prerogative right of the Court to draw from the facts and legal argument, and as such, the paragraphs have violated Section 115(1) and (2) of the Evidence Act, and the penalty is striking out the offensive paragraphs. As regards paragraph 43 in which the deponent catalogued what a legal practitioner informed the deponent, if the lawyer himself cannot be permitted to make the deposition, the person to whom he passes that opinion cannot be allowed to depose to it. See Adedipe v Frameinendur (2011) LPELR – 14271 (CA) 13 – 17 paras A – C.
Flowing from the above holding and finding, I hereby strike out paragraphs 5, 26, 28, 32, 37, 40 and 43 of the Defendant’s Counter Affidavit, for flouting the provision of section 115 of the Evidence Act, 2011. I so hold.
Now to the merit of the case, it is a settled principle in the rules of construction of documents that in interpreting the texts, the document should be read as a whole and not disjointedly and the court is enjoined to accord the words employed therein their ordinary grammatical meaning without any embellishments. See, Bank of Agriculture v Gordy (2021) LPELR – 53822 (CA), Airtel Networks Ltd v Plus Ltd (2020) LPELR – 51383 (CA), and Nigerian Army v Aminun-Kano (2010) LPELR – 2013 (SC).
Regarding the 1st question, I have thoroughly burrowed through the Constitution of the 1st Defendant, and most particularly the provisions of Article 9 on establishment of Branches, Article 10 on Officers and Staff, Article 14 on Elections, specifically under 14(2), and Article 15 of the Constitution, as well as all through the provisions of Appendix II, Supplementary Rules on Branch Elections, but in all my vigorous excursion into all these texts, I found nowhere the 1st – 3rd Defendants was given any power to interfere and or direct the postponement of a Branch election. All I found are only related and pertain to the reserve of the National Executive Council of the 1st Defendant in Article 9(iv), 15 of the Constitution and Rule (iii) of the Supplementary Rules on Branch Elections in Appendix II which particularly gives NEC the powers. It provides that NEC reserves the right to postpone/suspend the announcement or intended announcement of any date as contained in (ii) above where, in its judgment, the Branch is considered to be in crisis.
Notwithstanding the above finding, having held in the earlier part of this Judgment that Prayers 1 and 4 of the Originating Summons are of no legal use having become academic exercise. In addition, I have thoroughly examined the affidavit evidence and exhibits put forth by the Claimant, that asides the ipse dixit averments, there is no credible and concrete evidence showing any interference and or directives of the 1st, 2nd and 3rd Defendants to the Electoral Committee of the Academic Staff Union of Universities (ASUU), Bauchi State University Chapter to postpone its general election slated to hold on the 18th day of November, 2021 barely less than 24 hours to the said election. Exhibit G attached upon which the Claimant relies as a proof of such assertion does not show in any material particular the interference or directive by the 1st, 2nd and/or 3rd Defendants in the conduct of the election. This Honourable Court hereby finds the bare assertion of the Claimant in this regard unsubstantiated. It is the law that he who assert must proof. See, section 131 of the Evidence Act, 2011. In the absence of credible and concrete proof of the assertion, I find and hold that Prayer 1 and Prayer 4 is predicated on the events of Prayer 1 have all failed and are accordingly dismissed.
On the remaining live issues, Question 2 is, Whether or not having regard to the provision of Article 10(vi) of the Constitution of the Academic Staff Union of Universities (As Amended in 2018), the 4th to 8th Defendants’ term of office have elapsed as leaders of the Academic Staff Union of Universities, Bauchi State University Chapter having assumed their respective offices sometime in June, 2018. There is no dispute as to the fact that the 4th – 8th Defendants assumed their respective offices in June, 2018. The issue is whether in view of the provision of the Union Constitution, the tenure has elapsed; and if it has elapsed, is there provision for elongation?
In resolving the above issue, recourse is again had to the provisions of the Constitution of the 1st Defendant, particularly Article 10(ii), (vi), (viii) thereof. Article 10 (ii) provides thus:
“The Branch officers of the Union shall include the Chairperson, the Vice Chairperson, the Treasurer, the Secretary, the Internal Auditor, the Financial Secretary, the Welfare Officer, the Investment Secretary, the Assistant Secretary, and the Immediate Past Chairperson (IPC).”
Paragraph (vi) provides thus:
“All officers of the Union, except the General Secretary, shall be elected for a term of two years at a time provided that no person shall hold same elected position for more than two consecutive terms.”
Paragraph (viii) states thus:
“Subject to the provisions of this Constitution, an officer of the Union shall assume the position of the Immediate Past Chairperson (IPC) upon successful completion of his or her term of office as Branch Chairperson.”
In order to err on the side of the surplus, I have looked critically for any provision as to elongation or holding over after expiration of term of office but very unfortunately, found none. From the foregoing, it is without controversy that the term of office of the 4th – 8th Defendants who were elected into their respective offices in June 2018 has expired since June, 2020 and there is no justification for them to hold on to the offices after the term’s expiration except there is a provision for such in the Union Constitution. I therefore resolve this issue in favour of the Claimant against the Defendants.
Regarding the last Question 3, in resolving this issue, I will examine the provisions of the Constitution and most particularly on the conduct of Branch Election. The provision of Article 14(2)(a)(i) of the Constitution provides thus:
“A Branch election shall be conducted in accordance with this Constitution and the Supplementary Rules as contained in the Appendix II to this Constitution.”
Rules (iv), (ix), (x), and (xxv) of the Supplementary Rules on Branch Election in Appendix II of the Constitution are the germane provisions in this regard. Rule (iv) provides thus:
“Once NEC has given clearance for the conduct of an election in a branch, the Branch Congress shall set up an Electoral Committee whose responsibility shall be to conduct a free and fair election for the branch. Where the Branch is in crisis, and it is in NEC’s judgment that there shall be an election, NEC will conduct the election.”
Rule (ix) provides thus:
“The Electoral Committee shall at the close of nomination, publicise the list of all nominated candidates and their nominees and seconders at least ten (10) days to the date of elections for the purpose of objection(s).”
Rule (x) states thus:
“Any petition on any of the candidates shall be made to the Electoral Committee for the purpose of screening.”
Rule (xxv) provides thus:
“The Branch Congress shall, where it deems fit, set up an Independent Committee to entertain electoral complaints arising from such elections. Otherwise, all such electoral complaints shall be dealt with summarily by the Congress under the supervision of the NEC representatives/observers.”
The Claimant has contended that having regard to the provision of Appendix II Rule (xxv) of the Constitution of the 1st Defendant, the 9th to 12th Defendants as an Electoral Committee cannot accept, treat and or give credence to any petition, observation or criticism made by any member of the Union outside the prescribed period for the receipt of the said petitions, observation or criticism in the 2021 General Election Schedule, supplied and duly authenticated by the Electoral Committee. I have keenly observed that the Defendants did not canvass any argument in respect of this issue. It is trite law that where a party has raised and canvassed argument in respect of an issue and the opponent chose to keep mute on same, the opponent will be deemed to have conceded to that position as canvassed by the other party. See, Akin-Taylor v Boja Investment Co. Ltd & Ors (2013) LPELR – 21468 (CA) 13 – 14 paras. F – A.
Now, the even Claimant attached Exhibit B issued by the Electoral Committee wherein 7th – 14th October, 2021 was scheduled for the receipt of petitions. It is very clear from the above provision of Rule (x) of Appendix II that the petition in this regard is for the purpose of screening. Exhibit D is the outcome of the screening exercise, showing the List of screened candidates. I am in total agreement with the Claimant’s Counsel that after that window of 7th – 14th October, 2021 had closed, any petition brought by any person will not be channeled to the Electoral Committee since the screening exercise has been done and concluded. The only venue available to such an aggrieved person is as provided in Rule (xxv) of Appendix II, and no more to the Electoral Committee. In the light of the foregoing, this issue is hereby resolved in favour of the Claimant against the Defendants. I find and I so hold.
In the final analysis, for all the reasons stated, I find that the Claimant’s case succeeds in part. While I refuse Reliefs 1 and 4 of the Claimant, I have no reason not to accede to Reliefs 2, 3, 5, 6 and 7 the Claimant having established his entitlement with credible and concrete affidavit evidence and exhibits placed before this Court. In light of the foregoing, this Court hereby declared as follows:
1. That the 4th to 8th Defendants’ term of office have elapsed having spent more than the constitutionally guaranteed 2 years in consonance with the provision of Article 10 (vi) of the Constitution of the Academic Staff Union of Universities (As Amended in 2018) the leadership having assumed office in June, 2018.
2. That the Branch Electoral Committee cannot accept, treat and or give credence to any petition, observation or criticism made by any member of the Union outside the prescribed period for the receipt of the said petitions.
Given that the 1st Defendant’s Constitution does not provide for the setting up of a Care Taker Committee and in order not to create a vacuum in the leadership of the Bauchi State University Chapter of the 1st Defendant Union, this Court hereby ordered as follows:
1. That reliefs 1 and 4 having failed, are hereby dismissed.
2. That the 4th to 8th Defendants are by order of mandatory injunction compelled to vacate office as leaders of the Academic Staff Union of Universities (ASUU), Bauchi State University Chapter on or before the 16th day of August 2022.
3. The 1st, 2nd and 3rd Defendants SHALL, from August 16, 2022, not accord recognition to the 4th to 8th Defendants as Chairperson, Secretary, Assistant Secretary, Financial Secretary and Welfare Officer respectively of the Academic Staff Union of Universities (ASUU), Bauchi State University Chapter.
4. That the 9th to 12th Defendants being the Independent Electoral Committee duly constituted by the Congress of the Union SHALL, before August 16,2022, conclude the election process.
Judgment is entered accordingly. I make no order for cost.
……………………………………… .
HON. JUSTICE MUSTAPHA TIJJANI