IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI
DATE: TUESDAY 10TH OCTOBER 2023
SUIT NO. NICN/LA/207/2017
BETWEEN
1. NIGERIA UNION OF PENSIONERS (NUP)
2. OTUNBA ARASHI LAWAL CLAIMANTS/APPLICANTS
(Substituted Comrade Dele Joseph-
AND
FASHOLA OLADIPUPO OLUWO DEFENDANT/RESPONDENT (Substituted Mr. Waheed O. Sanni)
Representation:
Marian Jones for the Counterclaimant
Audu Augustine for the Defendants to the Counterclaim
JUDGMENT
Introduction and Claims:
1. The Defendant to Counterclaim as Claimant in the original suit commenced this action by a General Form of Complaint dated the 2nd day of May, 2017 claiming the following reliefs:-
a. A perpetual injunction restraining the Defendant and his illegal association from further conducting activities in the name of Nigeria Union of Pensioners, (NUP) Lagos State Branch or any other name whatsoever Lagos State Branch and also parading themselves as Exco members of the Union of Pensioners, NUP Lagos State branch or any other name however.
b. A declaration that there is only one National Union of Pensioners (NUP) Lagos State Branch with Comrade Dele Joseph as its chairman with office as Suite 51, Tefawa Belewa Square via Terrance Race Course, Lagos Island, Lagos State.
c. An order directing the defendants to account for all illegal money collected from unsuspecting Union members from August, 2013 when Comrade Dele Joseph’s Union Exco was inaugurated till date.
d. Cost of this action being N300,000:00
2. The Counterclaimant filed a Statement of Defence and counterclaim to the suit of the Claimant. In the cause of the proceeding, the Claimant filed a Notice of Discontinuancedated 20th October 2017 in accordance with the Rules of this Court and the Claimant’s case ceased to exist. However, the Defendant continued with his counterclaim before this Court. The Counter Claimant filed an amended counterclaim dated the 19th day of August 2022 and seeks the following reliefs:-
1) A Declaration that the NUP Federal Civil Service Branch, Lagos State exists as a State branch of the Federal Civil Service Pensioners Sectoral Branch that has a signed agreement with the 1st Claimant’s vide communiqué in the office of the Registrar of Trade Unions on the 31/10/2006.
2) A Declaration that the 1st Claimant’s conduct of election on the 16th of August 2013 at a delegates conference for the 2nd Claimant and other named persons in the letter dated 2/9/2013 as it concerns/affects the office of the Counter Claimant is illegal, unconstitutional, null, void and of no effect whatsoever.
3) A Declaration that the Defendant; Comrade Waheed Olalekan Sanni was validly elected on 22/5/2014 in Lagos as the Chairman NUP Federal Civil Service Pensioners Branch, Lagos State by the organized Federal Civil Service Pensioners Association Sector Lagos State branch.
4) A Declaration that the 1st Defendant to Counter Claim conduct of election on the 16th of November 2017 at a delegates conference for the 2nd Defendant to Counter Claim and other named persons named is illegal, unconstitutional, null, void and of no effect whatsoever.
5) An Order setting aside the elections conducted on 16th August 2013 and 16th November 2017 respectively both by the 1st Defendant to the Counter Claim which produced the 2nd Defendant to Counter Claim as Chairman of the NUP FSCP Branch is illegal, unconstitutional, null and void.
6) An Order that the 1st Claimant’s letter dated 15/5/2014 is in violation of laid down agreement between the 1st Claimant and the Federal Civil Service Pensioners Association and breached its Constitution and Code of Practice which disapproves poaching; being a violation of the of trade union solidarity that breeds antagonism, unrest, disaffection and disunity, industrial strain and conflict among union workers.
7) An order of perpetual injunction restraining the Claimants by themselves, agents, privies and any affiliate whatsoever from further threatening, harassing the Defendant, the NUP Federal Civil Service Pensioners Branch internal affairs with different law enforcement agents in Lagos State or elsewhere.
8) N5,000,000.00 aggravated, special and general damages.
3. The Defendants to Counter-Claim filed their Defence to Counter-Claim dated 26th day of October 2022; while the Counter-Claimant filed an Amended Reply to the Defence of te Defendant to the counterclaim dated 19th day of August 2022. Trial commenced on the 6th of March, 2019 with the counterclaimant opening his case with the 1st witness (Pius Nwa Chukwurah), who was also cross examined the same day. The 2nd witness was taken on the 25th of October, 2022 and was also cross examined on the same day. The Defendants opened their defense on the 26th of October, 2022. The Defendant’s witnesses, comrade Sunday Omezi Onyemakere, Comrade Otunba Arashile Lawal and Olateju Michael Abiodun as DW1, DW2 and DW3 gave evidence and were cross-examined. The matter was adjourned for adoption of final written addresses. The final written addresses were adopted on 20th July 2023. During their evidence in chief, the Counterclaimant’s witnesses tendered in evidence, the following documents:
1 Exhibit C1: Communiqués/M.O.U between the Nigeria Union of pensioners Branch and NUP Federal Civil Service Pensioners Association dated 31/10/2006.
2 Exhibit C2: Bundles of letters written by Chukwura
3 Exhibit C3: NUP letter reference no. NUP/HQ/2/08 dated 19th September 1995.
4 Exhibit C4: Letter dated 26th May 2014 with Calendar
5 Exhibit C5: Letter dated 2nd September 2013
6 Exhibit C6A C6B: - NUP CONSTITUTION [OLD AND NEW]
7 Exhibit C7: NUP Federal Civil Service Pensioners Association Sector/Branch letters dated 27/2/2013
8 Exhibit C8: NUP Federal Civil Service Pensioners Association Sector/Branch letters 11/4/2013.
9 Exhibit C9: The PUNCH newspaper dated 19/8/2013
10 Exhibit C10: Letter of protest dated 20th November 2013
11 Exhibit C11: National General Secretary Comrade Pius Nwa Chukwurah protested via letter dated 16/12/2013.
12 Exhibit C12: letter dated 9th May 2014
13 Exhibit C13: Notification of proposed election vide letter dated 9/5/2014
14 Exhibit C14: List of the 32 organised state branches/rules and guidelines.
15 Exhibit C15 A-C: Defendant’s [Counterclaimant] letter dated 4/9/2015
16 Exhibit C16: Certificate of election dated 22/5/2014.
17 Exhibit C17:List of the 32 organised state branches/rules and guidelines.
18 Exhibit C18: Personal Data Verification from the Pension Transitional Arrangement Directorate PTAD, letters written to him as chairman NUP FCSP Branch dated 22/12/2014 and 14/5/2015 respectively
19 Exhibit C19: NUP FCSP Branch Lagos State Identity Card.
20 Exhibit C20: NUP Letter dated 2/9/2013
21 Exhibit C21: Counter Affidavit of Dele joseph
22 Exhibit: C22: Sunday Omezi Statement on oath dated 2/5/2017
23 Exhibit C23: The Nigeria Tribune Newspaper dated 6/12/2017
24 Exhibit C24: letter dated 11/1/2016 to IGP
4. The Defendants relied on the following exhibits:
a. Exhibit D1: Letter titled Re: Threat by Dele Joseph to invade the FSC Club, Lagos FSC Pensioners Meeting to damage properties dated 8th September, 2015.
b. Exhibit D2: NUP Constitution 2009
c. Exhibit D3: NUP Constitution 2017
d. Exhibit D4: Letter of Introduction of newly elected officers dated 2nd September, 2013.
e. Exhibit D5: Letter addressed to Governor of Lagos State dated 14th May, 2014 calling his attention for attempted violation of Union's Constitution.
f. Exhibit D6: Letter titled: NUP Federal Civil Service Branch Election of Officers into the Lagos State Branch Sector, disassociating NUP from counter claimant's group dated 15th May, 2014.
g. Exhibit D7: Petition dated 3rd September, 2015 addressed to the Inspector General of Police, about illegal activities of counter claimant.
h. Exhibit D8: Letter titled Re: In personation as, chairman NJP Lagos Branch dated 22nd September 2015.
i. Exhibit D9: Counter claimants letter dated 9th October, 2015 in response to Letter of In personation.
j. Exhibit D10: Counter claimants letter dated 11th November, 2015.
k. Exhibit D11: Defendant's Letter dated 29th October, 2015 giving notice in pending court action.
l. Exhibit D12: The Invitation to National Executive Council (NEC) Meeting dated the 8th day of April,2014.
m. Exhibit D13: The claimant's statement of Account from 1st day of January, 2022 to 15th day of December 2022
CASE OF THE COUNTER-CLAIMANT
5. The Counter-Claimant retired from the Federal Civil Service, and a member of the National Union of Pensioners(NUP) Federal Civil Service Pensioners Branch, in Lagos State. It is the case of the Counter-Claimant that Dele Joseph and Otunba A. Lawal (the the 1st Defendant) pseudo election as chairman and vice chairman is illegal, unconstitutional, null and void, and against all existing communiqués/M.O.U between the 1st Claimant; Nigeria Union of Pensioners and the Federal Civil Service Pensioners Association Sector/Branch. The Defendant to Counter-Claim never organized or consulted the Federal Civil Service Pensioners Branch Members in the 20 local government Areas of Lagos State before the election on 16/8/2013 and Branch elections are not conducted at the delegate conference. As at the time the election took place, the Lagos branch/sector had not been launched, and the National officers of the NUP Federal Civil Service Pensioners Branch, vested with powers to conduct elections, neither organized a delegate conference nor conducted such election (for 2nd Claimant) pursuant to the agreement of the parties at the 2006 meeting and signed communiqué. About 272 members of the NUP Federal Civil Service Pensioners Association Lagos Sector/Branch wrote to the 1st Claimant and protested such imposition via signed letter of protest dated 20th November 2013 and the National General Secretary Comrade Pius Nwa Chukwurah protested via letter dated 16/12/2013 to the 1st Claimant but, to no avail. The 2nd Defendant to Counter-Claimant had misrepresented himself to the Court as shown on the 2nd Defendant to Counter-Claimant’s documents before the Court and there is no evidence that the 2nd Claimant is even a genuine Federal Civil Service Pensioner or part of the Federal Civil Service Pensioners Welfare Association upon which the negotiation was based.
6. It is further the Counter-Claimant’s case that the appointed National officers together with members of the Federal Civil Service Pensioners Association in the 20 Local Governments Areas in Lagos State, worked with the appointed National officers to organize and conduct a legal, credible and peaceful election on 22/5/2014 in line with Communiqués signed in 2006 with the Nigeria Union of Pensioners and the Federal Civil Service Pensioners Association Sector/Branch in which the Counter-Claimant was validly elected as the Chairman NUP Federal Civil Service Pensioners Branch, Lagos State and thereafter notified the 1st Defendant to Counter-Claim by the letter dated 25/5/2014. It is the case of the Counter-Claimant that the Defendants to the counter-claim have caused losses to the Counter-Claimant in terms of legal costs of defending the suit filed by the Counter-Claimant and that their acts are condemnable and irresponsible of a mother/umbrella union that is being financed by the check off dues deducted from the same Federal Civil Service Pensioners’/members’ monthly pensions. It is further the case of the Counter-Claimant that the 2nd Defendant to the Counter-Claim’s harassment or interference in the affairs of the NUP Federal Civil Service Pensioners Branch Lagos State, is in violation of laid down agreement and should be restrained from further harassment and interference in the affairs of the NUP Federal Civil Service Pensioners Branch Union.
CASE OF THE DEFENDANTS TO COUNTER CLAIM
7. It is the case of the Defendants to the counter claim that the 1st Defendant and Otunba A. Lawal were duly elected as Chairman and Vice Chairman respectively into the Lagos State Branch of the Union for a term of 4 years in 2013 and in 2017 in accordance with the Cconstitution of the Union after due consultation with members in all Local Government Areas of Lagos State and not at the delegate conference as erroneously stated by the Counter Claimant and that the constitution of the NUP is a superior document to any other extraneous so-called communiqué/MOU and that with the election of the 2nd Defendant to the Counter Claim and his Vice in 2013, the state branch of the Union was automatically declared launched in accordance with the Constitution of the Union. It is the case of the Defendant to Counter-Claim that Counter-Claimant is not a member of the National body at Abuja to determine rules for the conduct of elections and did not participate from in the election at the Lagos State Branch of the Union in 2013 and that the 1st Defendant to Counter Claim wrote through its General Secretary to the Counter Claimant and his group recognizing 2nd Defendant to Counter Claim and warning the Counter Claimant to desist from further activities with the group.
COUNTER-CLAIMANT’S REPLY TO DEFENCE TO COUNTER CLAIM
8. The Counter-claimant replied that the NUP National HQ as an umbrella body of Pensioners’ Unions (each with their own structures) in the country has no constitutional authority to hold delegates’ conference or conduct branch elections on behalf of the NUP FCSP Branch, National Executive or any of NUP’S affiliate Unions as claimed by the NUP in its letter dated 2nd September 2013 and that the NUP General Secretary Elder Actor Zal (signatory to the letter of introduction for newly elected officers) had no Authority to conduct and supervise the purported 2nd Claimant’s and others elections on 2nd September 2013. The 1st Defendant to the Counter Claim’s General Secretary (in defence of their illegal activity) has no constitutional right to write/warn NUP, FSCP in order to prevent Counter-Claimant from performing their constitutional duties and the Defendants to the counterclaim, having discovered that the name used to file their suit does not exist, desperately rushed to conduct another illegal unconstitutional 2nd term election whilst the counterclaim was still pending. The 1st Defendant to the Counterclaim formulation of new names as advertised in three newspapers attached to defence to counter claim (i) Daily Trust Wednesday 6/9/2017 as chairman Nigeria Union of Pensioners Federal Branch Lagos State and Daily Times of Thursday 12/10/2012 and process dated 31/5/2018 but (ii) differently in the daily times of 8/11/2017 as chairman Nigeria Union of pensioners Federal Civil Service Pensioners Branch Lagos (iii) Chairman Nigeria Union of Pensioners National Headquarters Abuja in the Certificate of Returns and photograph with the NUP national President is appalling.
SUBMISSIONS ON BEHALF OF THE DEFENDANT TO COUNTER-CLAIM
9. The Defendants to Counter-Claim in their Final Written Address raised three issues for determination as:
i. From the totality of the evidence before the Court and the facts of the case, who between the Counterclaimant and the 2nd Defendant herein is the rightful state executives of the Nigeria Union of Pensioners Lagos State Chapter?
ii. Whether the Federal Civil Service Branch, Lagos State chapter exist as state branch of the Federal Civil Service Pensioners distinct from Nigeria Union of Pensioners by virtue of a signed communique Exhibit C1 or subject to Rules, Regulations and Constitutions of Nigeria Union of Pensioners being the parent Union of any fragmented State Chapter and or Branch.
iii. Whether the Counter Claimants are entitled to the reliefs sought in their counter claim in view of issue I and II formulated herein.
10. Issue one and issue two were argued together. The Defendant to Counter-Claim argued that Exhibit C6A and B (Constitution of the Union) is superior and both parties must conduct their affairs in accordance with the Constitution; and that Exhibit C1 which the Counter-Claimant is relying on is not exempted from complying with the provision of the Constitution on the conduct of elections. The Defendants submit that by Paragraph 4 of Exhibit C1 any election by the Union must be supervised by one or two representatives of the National headquarters of the Union to ensure free and fair elections. The Defendants argue that under cross-examination, the Counter-Claimant admitted that no representative supervised their election in 2014 and further that the Counter-claimant admitted to the express violation of the provision of Exhibit C6 A and B and C1 on election of State Council executives of the Union. The Defendants submit that this fact having been admitted by the Counter-claimant’s witnesses, needs no further proof. The Defendant to Counter-Claim relied on Ayoade & Ors v Mil. Gov. Ogun State (1993) 3 NWLR (pt. 309) 111 at 123. The Defendants to Counter-Claim further argued that the 2nd Defendant’s predecessor’s election was conducted first and was indeed first in time and by Exhibit D6, the 1st Defendant to Counter-Claim warned the Counter-Claimant not to hold any unlawful election and the Counter-claimants vagrantly disobeyed the directive and authority of the National Executive Council to hold the Election in 2014 and that the election of the 2nd Defendant was approved by the National Executive Council of the 1st Defendant at its meeting held to deliberate on the election and same was communicated to the Counter-claimants through Exhibit D6 paragraph 8. The Defendants relied on the case of Gbadesire v. Registered Trustees of Ikoyi Club 1938 (2019) LPELR-51623(CA)(Pp. 9-10 paras. B) where the Court held among other things that a voluntary organization has the right to make rules for itself, within the bounds of lawful conduct, which its members shall be bound by. The Defendants to the counterclaim then urged the Court to hold that the election that produced the Counter-Claimant as chairman Lagos branch of the Union in 2014 is null and avoid. The Defendant to Counter-Claim argued that Exhibit D12 and D13 shows their involvement and recognition by the 1st Defendant in this case. Exhibit D12 is an invitation letter to NEC meeting and this has been a regular occurrence as the State Chairman and Secretary are members of the National Executive Council. Exhibit D13 is account statement showing monthly remittances of check off dues from the 1st Defendant as provided in the Constitution of the Union, and that recognition and remittance of the Union check off dues as provided in the Constitution on monthly basis to the Defendant is a strong indication that suggests that the Defendant is the rightful state executive council in Lagos State.
11. On the third issue raised by the Defendants to the Counter-claim, “whether the Defendants/Counter Claimants are entitled to the reliefs sought in their counter claim in view of issue I and II formulated herein”, the Defendants to Counter-Claim argued that the Counter-claimant has failed woefully to prove how the said election that produced the Defendant to Counter-Claim was unconstitutional and no evidence before this Court shows that the election was a delegate election apart from protest letters. The Defendants argue that no participant in that election was called to testify on the nature of the election that produced the 2nd Defendant to Counter-Claim. The Defendants submit that he who asserts the existence of a fact or facts must prove that which he asserts by relying on the case of Agu v. Anadi (2002) 18 NWLR (pt. 298) 103. The Defendants also submit that the Counter-claimant has not been able to show how Exhibit D6 is a violation of exhibit C1 warranting the Court’s declaration and has not proved how they are entitled to special damages and general damages.
SUBMISSION ON BEHALF OF THE COUNTER-CLAIMANT
12. The Counter-Claimant in his Final Written Address raised two issues for determination as follows:
1) Whether the 2nd Defendant to the Counterclaim or the Counter Claimant is the duly constituted NUP Federal Civil Service Pensioners Branch, in Lagos State? If the later, whether the actions of the Defendants to the Counter claim are legal?
2) Whether the Counterclaimant claims should be granted?
13. The Counter-Claimant argued that the 1st Defendant to the counter-claim’s communiqué issued on October 2006 to organize the Federal Civil Service Pensioners in the 36 States of the Federation brought about conducting of Lagos sector election of the Union in 2014; and before the election took place the 1st Defendant was notified by Exhibit C14 to C17 as demanded by Exhibit C1. The Counter-claimant submits that these exhibits were not challenged by the Defendants to the counter-claim at all neither did they link the existence of the 2nd Defendant to counter-claim to those documents. The Counter-Claimant further submits that there must be a clear denial or non-admission as held in the case of Cameroon Airlines v. Mr. Mike E.. Otutuizu NSCQR Volume 45 2011 Page 962. The Counter Claimant argued that as at the time the 2nd Defendant claimed the election was held in 2013, the Lagos branch was not launched and DW3 admitted during cross examination that he travelled to Abuja for the election as he was appointed to the post of secretary on the 16th of August 2013; the date all executives were supposedly elected and nominated. It is the submission of the Counter-claimant that elections pursuant to the agreement of the parties at the 2006 meeting and signed communiqué stated that after its organisation at all levels, officials of the Federal Civil Service Pensioners Association should be produced through elections. The Counter-Claimant submits that in the Newspaper publication (exhibit C9), the Defendants admitted as much that the election was held at the Delegates conference as against Rule 7, 12 and 13 of the Constitution which spells out the business of the conference. Therefore, the election conducted and supervised by officials of the 1st Defendant and published in Exhibits C9 was in violation of Nigeria Union of Pensioners Constitution and the existing Communiqués/M.O.U.
14. On the issue “whether the Counter-claimant’s claims should be granted”, the Counter Claimant argued that the Defendants conducted another election in 2017, despite knowing that there is a counter-claim against them, after withdrawing their case against the Counter-Claimant. The Counter-claimant submits that the conduct of the Defendant is unlawful and condemnable. The Counter-claimant submits that they are entitled to declaratory reliefs based on the establishment of their case by relying on the case of Ogolo v Ogolo (2004) 2 MJSC 174 and that the Counter-claimant is entitled to perpetual injunction to avoid bringing multiplicity of suits in respect of every repeated infringement as held in the case of Goldmark Nigeria Limited v.. Ibafon Company Limited NSCQR VOLUME 49 (2012) PAGE 1763.
THE DEFENDANT TO COUNTER-CLAIM’S REPLY ON POINT OF LAW
15. On the issue that the Counter-Claimant notified the 1st Defendant national headquarters before carrying out the election of the Lagos sector of the Union in 2014, the Defendant replied that the requirement of the Constitution of the Union is not notification of the election but supervision of the election by the officers of national headquarters in line with Exhibit C6 A and B - Exhibit C6A 11(13) and Exhibit C6B(g). On the issue that the Defendant did not deny the knowledge of the communique or show other documents contrary to it, and therefore they should be deemed admitted, the Defendant replied that in determining whether an averment in a particular paragraph of a statement of claim is traversed, one is not limited to a particular paragraph of the statement of defence but to the entire defence. The Defendant relied on the case of Adelusola v. Akinde (2004) 12 NWLR (pt. 887) 295. On the issue that the 2nd defendant’s election in 2017 was conducted during the pendency of the case, the Defendants replied that there was no subsisting order of this Honourable Court violated by the Defendant and that the doctrine of lis pendis does not apply in this case as the instant case has nothing to do with real property. The Claimant relied on the case of Olori Motors v. UBN Plc, (2006) 10 NWLR pt. 989, page 589 at 625 and urged the Court to discountenance the submissions of the Counter-claimant and to hold that the Defendants are the rightful executives of the Union in Lagos.
DECISION
16. I have considered the processes filed in this suit, the evidence led, the arguments of Counsel, and the exhibits tendered. The dispute between the parties, of which this Court is called to adjudicate revolves around elections held by the two parties, and the determination of which election produced legitimate executives for the Federal Civil Service Sector (Lagos State Branch) of the 1st Defendant to the Counter-claim. This suit was originally instituted by the Defendants to the counter-claim, as Claimants. When they withdrew the case on the 20th October 2017, the counter-claim continued as the only matter before the Court. I have considered the issues raised by the parties for determination; and set the following issues down for determination:
(i) Whether the Federal Civil Service Sector, Lagos State Chapter exists as a State branch of the Federal Civil Service Pensioners distinct from Nigeria Union of Pensioners?
(ii) Who, between the Counter-Claimant and the 2nd Defendant to the Counter-claim is the duly elected and rightful executive of the NUP, Federal Civil Service Pensioners Sector (Lagos State)?
(iii) Whether the Counter-Claimant is entitled to the reliefs sought in his counter-claim?
17. Issue one - Whether the Federal Civil Service Sector, Lagos State Chapter exists as a State branch of the Federal Civil Service Pensioners distinct from Nigeria Union of Pensioners? Both parties to this suit concede to being members of the 1st Defendant to the Counterclaim. It is the case of the Defendants to the counterclaim that Exhibits C6A and B (the NUP constitution) is superior to any other document guiding the affairs of the parties; thus parties are expected to conduct their affairs in accordance with the Constitution. They argue that the Counterclaimant is not independent of the 1st Defendant and is subject to the 1st Defendant’s Constitution, Rules and Regulations. The case of the Counter Claimant however, is that Exhibit C1 created the Federal Civil Service Sector of the NUP and clothed them with some independent existence.
18. The 1st Defendant to the counterclaim (NUP) is a Trade Union listed as No. 24 under parts A and B of the Third Schedule of the Trade Union Act and an affiliate to the central labour organisation. I have considered Exhibits C6A, C6B, D2 and D3; all various versions of the Constitution of the 1st Defendant. Rule III (i) of the Constitution clearly defines the scope of membership of the Union. It provides that:
The following persons automatically become members of the Union immediately they retire from service and place on pensions: Also private sector pensioners and Federal Parastatals pensioners. All pensioners from the Civil Service of the Federation including Local Governments Statutory Corporations, Government owned Companies, Educational Institutions for which the Governments of the Federation are responsible and all such similar establishments. Also private sector pensioners.
Rule 5 (ix) of exhibits C6B and D2 provide for the constitution and governments of the 1st Defendant to the counterclaim. Exhibit D3 dated 26th April 2017 and the amendments contained therein were made after the accrual of the cause of action in this suit and therefore is not the Constitution that was applicable at the time this suit was commenced. Rule 5(ix) of exhibits C6B and D2 provide that “the government of the union shall be vested in the following (f) federal parastatals/sectoral unit”. Exhibits C6B/D2, Rule 5 (ix) created state councils, sectoral units and local branches for the 1st Defendant.
19. How these local branches, state councils and sectoral units functioned can only be found in the practice that followed their establishment, as the constitution of the 1st Defendant is silent on their modus operandi. Exhibit C3 is a letter from the national headquarters of the 1st Defendant dated 19th September 1995, addressed to the Honourable Federal Minister, Federal Ministry of Establishments and Management Services. It informed the Hononourable Minister of the “creation of Federal Civil Service Branch of the NUP”. The creation of the FCSP branch of the NUP also led to the emergence of officers who were listed in the letter(Exhibit C3). The operational base of the Federal Civil Service branch was given as No. 16 Awolowo Road, Ikoyi, Lagos State. The letter to the Minister was copied to the Secretary, NUP, Federal Civil Service branch at No. 16 Awolowo Road, Ikoyi, Lagos state, and the State Secretary of NUP, Lagos. By the Communique issued at the meeting between the 1st Defendant (national headquarters) and Federal Civil Service Pensioners Association held under the auspices of the Registrar of Trade Unions on Tuesday, 31st October 2006, at the office of the Federal Ministry of Labour, it was resolved that the Federal Civil Service Pensioners should organise nationwide, in the 36 states of the Federation.
Exhibit C1 is the communique. It provides as follows:
(1) That the Federal Civil Service Pensioners should organise nationwide, in the 36 states of the Fdereation and Abuja.
(2) That Federal Civil Service Pensioners as a body be referred to as Federal Civil Service Pensioners Association.
(3) That the Association should exist as a sectoral branch under Nigerian Union of Pensioners.
(4) That in all activities of the Association both at state and the National levels the NUP should always be represented with particular reference to negotiations and elections.
(5) That remittance of check-off dues to the National Association and each branch should be in conformity with what is staed in NUP constitution. Ie. 30% - National Association, 25% State branches.
(6) That NUP National Headquarters should appoint an Assistant General Secretary to liaise with and handle matters with the sectoral units.
(7) That NUP Headquarters should from hence forth carry the Federal Civil Service Pensioners Association along in all its national programmes.
(8) That after its organisation at all levels, officials of the Federal Civil Service Pensioners Association should be produced through elections.
(9) That account of monies remitted to Federal Civil Service Pensioners Association by the parent body would be rendered in due course.
20. Exhibit C1 is sighed by representatives of NUP and Federal Civil Service Pensioners Association. In my view, by exhibit C1 (the communique) signed by the representatives of the NUP and the FCSP, the FCSP was brought within the constitutional provision of the NUP Constitution as a Sectoral Unit. This is clearly intended by paragraph 3 of the communique. Paragraph 2 constitutes the FCSP as a body to be referred to as Federal Civil Service Association. As a federal body, paragraph 1, empowers it to be organised nationwide, in the 36 states of the Federation and Abuja. Paragraph 4 recognises that the association can function at both the national and state levels. Paragraph 5 also gave the same recognition that the association’s national and state levels have quotas of their check off dues. The Defendants to counterclaim have not challenged the authenticity of Exhibit C1, but only argues that the FCSP must function within the confines of the NUP Constitution. The Defendants have not shown any form of unconstitutionality in their existence; nor have I found any.
21. The Federal Civil Service Association thereafter began to function as a sectoral unit in accordance with the communique. This is shown by the following:
(i) Letter written by the NUP, Federal Civil Service Pensioners Association Sector dated 13th February 2012, from their 16 Awolowo Road address, to the NUP national headquarters, asking for resolution of certain urgent matters relating to dispensation of check off dues. The letter is signed by A.O.Osoba(National Chairman) and Comrade Pius N. Chukwura(National Secretary). Both Osoba and Chukwura are listed in Exhibit C3 (dated 19/9/1995) as Assistant Secretary and Executive Committee member, at the creation of the association.
(ii) The launching of other state branches of the Federal Civil Service Pensioners Association Sector (FCSPAS) as shown in Exhibit C7 - letter written by the FCSPAS to the NUP national, informing the NUP of the launching of 13 state branches of the FCSPAS. The letter is again signed by A.O. Osoba and Pius N. Chukwurah from the No. 16 Awolowo Road Ikoyi, Lagos office..
(iii) In letter dated 19th November 2014, the FCSP wrote the NUP national, requesting for a meeting on the way forward; on how to resolve their dispute, including issues relating to unpaid check off dues.
(iv) More letters dated 4/2/15, 12/8/15, and 7/10/15 show the acknowledgement of the existence of the FCSP.
(v) The holding of various national delegates’ meetings (Makurdi 11/6/13, Lokoja7/8/14) as shown in exhibit C2 letter dated 19/11/14.
(vi) Notification of the launching of 23 states branches of the FCSPAS of the NUP via letter dated 11/4/2013 to the NUP national headquarters with the names of their officers.
(vii) Exhibit C14 shows the existence of 32 branches of the FCSPA in the country.
(viii) Rule 11 of the NUP constitution provides for State Councils. This refers to State Councils of the National Union of Pensioners. This is distinct from State Councils of Sectoral Units of the NUP, such as the Lagos State chapter of the FCSPA.
(ix) The fact that the 2nd Defendant gave the address of its body as suite 51, Tafawa Balewa Square via Terrance Race course, Lagos Island; an address not connected with the FCSP as shown consistently in its documents from inception in 1995.
22. Though the Defendants denied knowledge of the communique in paragraph 6 of the Defence to counter claim but the DW1 when shown the document admitted knowing about it and knowing CW1. Based on all the above, I am convinced that the Federal Civil Service Pensioners Association, had begun to function as a sectoral unit of the NUP; having its national officers, and state branches. I therefore resolve issue one with a finding that the Federal Civil Service Pension Association exits, not as a branch of the National Union of Pensioners, but as a sector, of the National Union of Pensioners. The Lagos State Chapter of the Federal Civil Service Pensioners Association exists as a State branch of the Federal Civil Service Pensioners Association, and not as a state branch of the NUP.
23. Issue two - Who, between the Counter-Claimant and the 2nd Defendant to the Counter-claim is the duly elected and rightful executive of the NUP, Federal Civil Service Pensioners Sector (Lagos State)? I have already found that the Lagos Chapter of the FCSPA is a branch of the FCSPA and not a branch of the NUP. Evidence before this Court has shown that upon the establishment of the FCSPA as a sectoral unit, officials of the FCSPA began the inauguration of branches of the FCSPA all over the nation. Exhibit C7 shows a communication from the FCSPA to the NUP national headquarters, informing them of the planned inauguration of 13 branches of the FCSPA, pursuant to Exhibit C1. Exhibit C8 further informs the 1st Defendant of the inauguration of 23 more state branches of the FCSPA. However, these 23 state branches of the FCSPA did not include Lagos State chapter. Without any evidence of inauguration, the 1st Defendant purports to have held an election for the Lagos chapter of the FCSPA as shown in Exhibit C5 - letter from the 1st Defendant introducing to the Head of Service of the Federation, newly elected officers of the NUP, FCSP sector, Lagos state branch. The letter stated that the election took place on the 16th of August 2013. The question this raises include:
(i) Why would the NUP national office, conduct the election of the FCSP, Lagos chapter while there existed national officers of the FCSP?
(ii) How can the NUP (national) conduct election for a yet to be inaugurated branch of the FCSPS?
24. These questions find no answers in the evidence led by the Defendants to the counter-claim. Since there is proof that the Federal Civil Service Pensioners Association had become a sectoral unit of the NUP, the Federal Civil Service Pensioners Association, Lagos state chapter could not legitimately be inaugurated and elections held for them by the NUP (national); after all, they did not inaugurate any of the other branches of the FCSPA branches in the other states. Neither could the 1st Defendant inaugurate the FCSPA, Lagos chapter, as a state branch of NUP. Assuming the 1st Defendant had the proper locus to conduct elections for the Lagos chapter of the FCSPA, which I do not find that they had, there is no evidence to show:
(i) that an election held,
(ii) who participated in the election, and
(iii) where the election held.
The only document before the Court is a communication of the products of the alleged election. Further, the 2nd Defendant’s 2013 election cannot stand under exhibit C6B/D2 as the provisions therein are for NUP National Executive Committee and its state branches. Assuming exhibits C6B/D2 were to apply, there is no proof that its provisions were complied with in the purported election that produced the 2nd Defendant. However, my finding is that there is no proof that an election held.
25. The Defendants made heavy weather of the fact that the 1st Defendant supervised the election that produced the 2nd Defendant to the counterclaim, without leading evidence to the existence of any structure upon which that election held. I see in exhibit D6 where the Secretary of the 1st Defendant disparaged the existence of the FCSPA as a national body, recognising only Federal Civil Service Pensioners, Lagos State branch, with office at No. 51 Tafawa Balewa Square via Terrace Race Course, Lagos Island. This is despite the existence of exhibits C1 and C3 which authenticity has not been impugned. Further, DW1 in his written deposition stated that he was the national chairman of the 1st Defendant, but in Court on 5/12/22 said he was national chairman of NUP Federal civil service pensioners. He did not rebut exhibits C1 and C3 or show another document to the contrary. At the time of testifying he was no longer chairman of the 1st Defendant and only claimed the Defendants acted in accordance with the constitution. Yet, exhibit D6 is not supported by any other evidence as all other documents starting from Exhibit C3 dated 19th September 1995 gives the FCSPA’s address as No. 16 Awolowo Road, Ikoyi, Lagos. Where is the communication to the national NUP to come and conduct election? Where is the record of the conduct of the election? The Defendants to the counterclaim have nothing to show the supervision and/or holding of election except their own documents stating so. The 1st Defendant could not have supervised a legitimate election, and the 2nd Defendant and his executive could not have emerged through a legitimate process in view of the non-existence of the Lagos branch of the FCSPA at the time, the lack of proof of the election itself, and the lack of locus of the 1st Defendant to conduct the said election. The fact that the 1st Defendant began to give cooperative recognition to the executives they produced as shown by Exhibits D1, D4, D5, D6 , D7, D12 and D13 does not in any way legitimise the process or the executives.
26. The Counter claimant gave evidence of the emergence of the FCSPA as a sectoral unit of the NUP, and how it began to inaugurate state branches based on Exhibit C1. The Counterclaimant gave evidence of communications to the 1st Defendant, informing it of its activities pursuant to Exhibit C1. The Counterclaimant rejected the purported election of 16th August 2013 and called for credible elections via exhibit C10. The Counterclaimant via letter dated 26/5/2014 Exhibit - C4, notified the 1st Defendant about the election planned and carried out on the 22/5/2014. From Exhibit C1, after its organisation at all levels, officials of the Federal Civil Service Pensioners Association should be produced through elections. This, in my view, was complied with when the National officers of the Federal Civil Service Pensioners Association, conducted the election that produced the Counterclaimant.
27. From the findings above, I hold that the purported election of the 2nd Defendant to the counter-claim did not follow due process, having not been held by the body with the requisite power to hold it. On the other hand, the election of the Counter claimant is the product of the body that should conduct it. I find that having duly informed the NUP national body of the scheduled election, and the NUP national body failed to attend to supervise the election, the NUP national body cannot fault the election, on that ground. In the circumstance, the Counter claimant is the duly elected officer of the FCSPA, Lagos state chapter.
Issue three - Whether the Counter-Claimant is entitled to the reliefs sought in his counter-claim? To determine this issue, I shall take the reliefs sought by the Counter claimant seriatim.
(i) Relief one is for “A Declaration that the NUP Federal Civil Service Branch, Lagos State exist as a State branch of the Federal Civil Service Pensioners Sectoral Branch that has a signed agreement with the 1st Claimant’s vide communiqué in the office of the Registrar of Trade Unions on the 31/10/2006.” From my findings under issue one set by the Court for determination, I hold that this relief is proved. I therefore declare that the Nigerian Union of Pensioners, Federal Civil Service Sectoral Unit (Branch), Lagos State chapter, exists as a State branch of the Federal Civil Service Pensioners Association Sectoral Unit (Branch) that has a signed agreement with the 1st Defendant to the counter claim vide communiqué in the office of the Registrar of Trade Unions on the 31/10/2006.
(ii) Relief two is for “A Declaration that the 1st Claimant’s conduct of election on the 16th of August 2013 at a delegates conference for the 2nd Claimant and other named persons in the letter dated 2/9/2013 as it concerns/affects the office of the Counter Claimant is illegal, unconstitutional, null, void and of no effect whatsoever”. Based on my findings under issue two set down by the Court, I find that the Counter claimant has established entitlement to this relief. I declare that the 1st Defendant to the Counter claim’s conduct of election on the 16th of August 2013 at a delegates conference for the 2nd Defendant to the counter claim and other named persons in the letter dated 2/9/2013 as it concerns/affects the office of the counter claimant is contrary to the Constitution of the NUP and the communique signed by the 1st Defendant with the FCSPAS. It is null and void and of no effect whatsoever.
(iii) Relief three is for “A Declaration that the Defendant; Comrade Waheed Olalekan Sanni was validly elected on 22/5/2014 in Lagos as the Chairman NUP Federal Civil Service Pensioners Branch, Lagos State by the organized Federal Civil Service Pensioners Association Sector Lagos State branch”. Again, based on my findings on issue two, I find that the Counter claimant has proved his entitlement to this relief. I therefore declare that Fashola Oladipupo (substituting Comrade Waheed O. Sanni, by order of Court) was validly elected on 22/5/2014 in Lagos as the Chairman NUP Federal Civil Service Pensioners Association Sectoral Unit(Branch) by the organised FCSPAS Lagos State branch.
(iv) The 1st Defendant to Counter Claim’s conduct of election on the 16th of November, 2017, at a delegates conference for the 2nd Defendant to the counter claim is part of the initial illegality and therefore is void and of no effect whatsoever.
(v) The elections conducted on 16th August 2013 and 16th November 2017 respectively both by the 1st Defendant to the Counter Claim which produced the 2nd Defendant to Counter Claim as Chairman of the NUP FSCP Branch is illegal, unconstitutional, null and void and is hereby set aside.
(vi) I hold that the 1st Defendant to the Counter Claim’s letter dated 15/5/2014 is in violation of laid down agreement (the communique) between the 1st Claimant and the Federal Civil Service Pensioners Association and breached its Constitution and Code of Practice.
(vii) I have found that the FCSPA is a sectoral unit of the 1st Defendant and that the Lagos State chapter of the FCSPA is a branch of the FCSPA. The 1st Defendant is restrained from treating the Lagos Chapter of the Federal Civil Service Pensioners as a branch of the NUP. I order a perpetual injunction restraining the 1st Defendant to the Counter claim by themselves, agents, privies and any affiliate whatsoever from further threatening, and harassing the Counter Claimant, and the NUP Federal Civil Service Pensioners Branch internal affairs.
(viii) I decline the order for N5,000,000.00 aggravated, special and general damages.
Cost of this action is set at N1,000.00. Judgment is entered accordingly.
…………………………………….
/Hon. Justice Elizabeth A. Oji PhD