IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S.A. YELWA……….. JUDGE 

THIS …………….. DAY OF ………………2026

SUIT NO: NICN/LA/109/2025

 

BETWEEN:

1.COMRADE S.A. BABATUNDE……………………………………………1^ST CLAIMANT/RESPONDENT

    (General Secretary, National Union of Shop 7 Distributive Employees)

2.COMRADE I.M. JAJA

    (PRESIDENT, NATIONAL UNION OF SHOP & DISTRIBUTIVE EMPLOYEES) … 2^ND CLAIMANT/RESPONDENT 

3.NATIONAL UNION OF SHOP & DISTRIBUTIVE EMPLOYEES…………  ……3^RD CLAIMANT/RESPONDENT

AND 

FORMER NATIONAL TREASURER NUSDE

2. EMELA NWOKE                                                                2^nd DEFENDANT/APPLICANT (FORMER NEC MEMBER NUSDE)                  
3. THOMPSON EMANUEL                                                   3^rd DEFENDANT/APPLICANT

(NATIONAL TRUSTEE)

(FORMER DEPUTY GENERAL SECRETARY NUSDE 

(FORMER SAGS NUSDE)

(FORMER SAGS NUSDE

(FORMER ORGANIZING SECRETARY NUSDE)

(FORMER COMPUTER OPERATOR NUSDE)

(FORMER SECRETARY NUSDE)

(SHOPRITE DISTRIBUTION)

11. BETHRAND EJIKE NNAMANI (ENUGU)                      11^th DEFENDANT/APPLICANT
12. CHERISH OGENYI (ABUJA)                                           12^th DEFENDANT/APPLICANT
13. NDAGIWA MOHAMMED (ILORIN)                              13^th DEFENDANT/APPLICANT
14. TONY KWENTOA                                                           14^th DEFENDANT/APPLICANT
15. JUMOKE ADEBAYO                                                       15^th DEFENDANT/APPLICANT
16. PHIPLI DAMISSAH                                                         16^th DEFENDANT/APPLICANT
17. LAMINA TAIWO                                                             17^th DEFENDANT/APPLICANT
18. KOLAWOLE KOMOLAFE                                                18^th DEFENDANT/APPLICANT
19. WASILAT POPOOLA                                                       19^th DEFENDANT/APPLICANT
20. NGOZI UZOMA                                                              20^th DEFENDANT/APPLICANT
21. BENNARD IMOKHAI                                                     21^st DEFENDANT/APPLICANT
22. USMAN SAHEED                                                                  22^nd DEFENDANT/APPLICANT
23. SEUN OSHINNEYE                                                         23^rd DEFENDANT/APPLICANT
24. ODUNAYO ABDUL                                                         24^th DEFENDANT/APPLICANT
25. KEMI ONI                                                                              25^th DEFENDANT/APPLICANT
26. ERIC ESUMA                                                                   26^th DEFENDANT/APPLICANT
27. JOSEPH AKOWE                                                                   27^th DEFENDANT/APPLICANT
28. EDWARD ABULOKWE                                                   28^th DEFENDANT/APPLICANT
29. MR. FALONIPE AMOS O.                                              29^th DEFENDANT/APPLICANT

(REGISTRAR OF TRADE UNIONS FED. MIN. OF LABOUR AND EMPLOYMENT 

30. FIRST BANK OF NIGERIA                                              30^th DEFENDANT/RESPONDENT
31. CHRIS UYOT                                                                    31^st DEFENDANT/APPLICANT

 

RULING

By a notice of preliminary objection dated and filed on 27^th day of June, 2025 the defendants/ applicants sought from this court against the claimants/respondents the following reliefs: viz:

Or: in the alternative 

2. AN ORDER setting aside the originating processes of this suit for want of reasonable cause of action, locus standi, failure to observe fundamental condition precedent by first exploring the internal mechanisms for resolution of the dispute and incompetence;
3. AN ORDER striking out this suit for want of proper/necessary parties or striking out the names of the 29^th and 31^st Defendants/Applicants as agents of disclosed principals and incompetence.
4. AN ORDER striking out the names of the 1^st and 3^rd Claimants/Respondents for want of consent or authorization of the suit; and 
5. SUCH FURTHER ORDER (S) as this Honourable Court may deem fit to make in the circumstances of this suit. 

The applicant provided 8 grounds upon which the preliminary objection is brought on the face of the application. In support of the preliminary objection is a 12- paragraph affidavit deposed to by Comrade Augustine Uwakolam of No. 3 Olu Osifeso Close Onike, Yaba, Lagos and a written address of counsel in which 3 issues for determination were raised on the basis thereof arguments were canvased. In contest, the claimants/respondents filed a 22-paragraph counter affidavit, the deponent to which is Mr. Emeka Anago of Plot 109 Iba Housing Estate, Ojo, Lagos, annexed with some marked exhibits. Counsel also filed written address in opposition to the preliminary objection. Three (3) issues raised for determination by this court; are: 

1. Whether this suit is an abuse of the process of this Honourable Court. 
2. Whether the claimant’s suit is incompetent for want of consent of the 1^st and 3^rd Claimants’ locus standi to bring the action; and whether the claimants never sought for settlement of the matter before approaching this Honourable Court. 
3. Whether the 1^st claimant can claim lack of consent and authority in bringing this suit and whether this suit is not competent for joining the 29^th and 31^st defendant. 

Counsel maintained his submissions on the three issues raised herein above raised. 

This application is however predicated on the suit initiated by the claimants vide a General Form of complaint dated 9/5/2025, statements of facts accompanied with all necessary other processes and frontloaded documents filed on the same day constituting the Originating Processes. Similarly, claimants filed against the defendants a motion exparte seeking for injunctive orders on the basis of the grounds for bringing the application dated 29/4/2025 but heard and disposed on 2/7/2025 as same was refused. On 23/5/2025, claimants filed a motion on notice for perpetual injunction against the defendants. The said motion is still pending before this court. On 27/6/2025 the defendants through their counsel filed the notice of preliminary objection seeking from this court, principally an order of dismissal of the suit in limine as an abuse of the processes of this court.

On 3/12/2025 at the hearing of the preliminary objection, counsel adopted their respective written submissions variously filed as their arguments and urged this court to grant or refuse the preliminary objection as the case may be.

 

 

DEFENDANT’S/APPLICANT’S SUBMISSIONS:

Issue one: “Whether the suit is an abuse of the processes of this court.”

While submitting under his issue one, it is contended that the 1^st and 2^nd claimants by their suit, purportedly stated that they are incumbent officer (s), suing former officers of the 3^rd claimant. However, the facts before the court show that the reverse of the position is the case as nothing shows from their processes suggesting the 1^st and 2^nd claimants being principal members of the 3^rd claimant and having the authorization to institute the action. The 3^rd claimant is an artificial entity but without capacity to file the action. Counsel stated that by Exhibit B and E placed before the court, the 3^rd defendant has internal organs and avenue for settlement of disputes, but that the 2^nd claimant refused to call the meetings of the organs serving as avenues to settle the dispute, instead, by instituting the suit, he has jumped the gun to bring the suit before the court to which the suit filed amounts to embarrassment to the union and its officers and thus, an abuse of the processes of the court. In this regard, counsel cited the case of SARAKI v KOTOYE (1992) 9 NWLR PT 264 P.156 SC and also the case of ARUBO v AIYELERU (1993) 3 NWLR PT 280 P.126 SC and submitted the suit having been brought maliciously by the 2^nd claimant is clearly just to embarrass the defendants and upon false representation of facts. Consequently, this court was urged to dismiss the action in limine as an abuse of the process of the court.

Issue two:

Whether the claimant’s suit is not incompetent for want of consent of the 1^st and 3^rd claimants, locus standi to bring the action, reasonable cause of action and failure to first explore the internal mechanisms to resolve the dispute.

In arguing this issue, applicant’s counsel submitted that arguments on this issue and issue three would be necessary only if this court discountenanced that the suit amounts to an abuse of court process. In other words that the suit does not amount to abuse of the process of the court. Counsel further submitted that by the facts deposed by the claimants in paragraph 4, in support of their application which is supported by their Exhibit C, it shows that 1^st defendant/applicant was elected as the current president whereas the 2^nd,3^rd, 5^th-28^th defendants were elected into various other offices of the 3^rd claimant, while 4^th defendant was appointed as the substantive General Secretary and that the prayers in both the substantive suit and the motion on notice show that the 2^nd claimant is no longer the president of the 3^rd claimant. It contended that the 1^st claimant had resigned and conducted his handing over to the 1^st-28^th defendants upon their elections/appointments. This indicates 2^nd claimant was not authorized to sue the defendants upon the facts of this case and the 3^rd claimant would not authorize for the suit against its own members, officers and agents. The case of NIGERIA CIVIL SERVICE UNION v ESSIEN (1985) 3 NWLR PT 12P.306 the principles of law in it is reiterated in OLAWEPO v SEC (2011) LPELR-8694 CA, Where it was held that any suit instituted without authorization is liable to be struck out. Counsel went on to submit that it is clear that the 1^st claimant who was retired voluntarily from the 3^rd claimant, was the immediate past General Secretary of the 3^rd claimant. As it goes on, the 1^st and 2^nd claimants are not principal members who cannot have authority to institute the action for the 3^rd claimant so also have no capacity to act as representatives of all other members of the National Union of Shop & Distributive Employees as they however claimed in paragraph 8 of the supporting affidavit to the application. Counsel posite the claimants do not have any reasonable cause of action as the 1^st & 2^nd claimants lack locus standi to the case against the defendants, thereby robbing the court of any jurisdiction to entertain the action and cited GLOBAL EXCELLENCE COMMUNICATIONS LTD & ANOR v DUKE (2007) LPELR-7889CA where the court held that where a plaintiff lacks locus standi, the action is liable to be struck out. This court was urged to strike out names of 1^st & 2^nd claimant/respondents for want of locus standi while striking the name of the 3^rd claimant for lacking authorization to file the action and the suit for lack of reasonable cause of action. Further to the aforesaid submissions, counsel posited that assuming the claimants have fulfilled the conditions of having necessary authorizations, consents to bring the action and there appears to be a reasonable cause of action, (which the defendant’s counsel does not concede), it is plain that claimants have jumped the gun by failing to first explore the internal organs and avenues for resolution of their grievances before bringing the action to this court. It is the submission of counsel while referring to Exhibit B i.e. the constitution of the 3^rd claimant and the code of practice, it is plain that the internal mechanisms for settling grievances before bringing the action to this court was not explored as the claimants can only validly file the case if they can show that they have first exhaustively explore the internal organs and avenues for peaceful resolution of their grievances. In this case, they have failed to fulfil the requirements which is a condition precedent to bring the substantive suit. To this, the case of MADUKOLU v NKEMDILIM (1962)2 ALL NLR P.581 was referred to and in particular, the pronouncement of BAIRAMAN FJ at page589.

Counsel went on to submit that in the instant case, although the court has jurisdiction on the subject matter of the action, it nevertheless, cannot exercise the jurisdiction because the suit is incompetent before the court as the claimant has failed to activate the jurisdiction by satisfying a fundamental condition precedent as such the case is liable to be struck out.

Issue three “Whether 1^st claimant can claim lack of consent and authority to institute this suit

Counsel submitted that under law of agency, an agent for a disclosed principal cannot be sued personally for acts performed within the scope of their authority. It is stated that by paragraphs 7 &8 of their affidavit, the claimants admitted that the acts they are complaining of or purportedly carried out by the 29^th & 31^st defendants were carried out by them on behalf of their respective principals-the registrar of Trade Unions and the Nigerian Labour Congress, respectively. Counsel went further to submit that the law is settled where the principal of an agent is known or disclosed, the correct and proper person to sue for anything done or omitted to be done by the agent is the principal, and cited UKPANAH v AYAYA (2011)1 NWLR PT 1227 P.61. In the present case counsel submitted that the 29^th & 31^st defendants were known to have acted as agents for and on behalf of disclosed principals and therefore, cannot sue or be sued in their personal names or capacities. This court was urged to strike out the names of 29^th & 31^st defendants.

OPPOSITION TO THE PRELIMINARY OBJECTION

As stated earlier, the claimants/respondents filed on 2/12/2025 a 22 paragraphs counter affidavit attached with Exhibits 1-3 deposed to by Mr. Emeka Anago, which is accompanied by a written address in opposition to the preliminary objection. Counsel from the onset urged this court to discountenance the entire arguments of the defendants/applicants contending to have arisen from deceptive affidavit in support of the application. Claimant adopted the issues formulated by counsel for the applicants.

While arguing issue 1, it is submitted that preliminary objection should not be raised frivolously because it can lead to unnecessary delays of the process of law, increase cost of litigation and undermine the integrity of judicial process. In reaction to whether the suit filed is an abuse of the process of this court, counsel for the claimants/respondents opined that one will wonder whether the defendants before they file their preliminary objection did not see Exhibit D of the Originating process which is the outcome of the National Delegate Conference Elections held in Asaba on 26/5/2022, wherein the 1^st Claimant signed Exhibit D of the originating process as the General Secretary whose position is always by appointment and the 2^nd Claimant was elected as the president of the 3^rd Claimant. Arguing further, counsel contended that the 3^rd claimant is an artificial person who acts through the instrumentality of human persons which is the 1^st, 2^nd and 3^rd Claimant for decision making. It is added by counsel that at the time the tenure of office of the 2^nd Claimant is still subsisting as the president of the 3^rd Claimant and so the 2^nd Claimant has powers to sue the dissident members of the 3^rd Claimant.

Counsel reviewed submissions of the applicants’ counsel as in paragraph 4.2 of their written address and maintained that Exhibit E, at paragraph 18 and I, of paragraph 36 of the originating process showed that the 2^nd Claimant had minutes of reconciliatory meetings between the leadership of the 3^rd Claimant and the defendants to show that there was an attempt to reconcile the defendant but when the reconciliation failed, the claimant resorted to the last hope which is the court. This contradicts the contention of the defendants/applicants’ counsel that claimants did not explore settlement bidding of the dispute as provided by the constitution of the 3^rd Claimant. Moreover, it is argued that the 1^st claimant issued instructions to the counsel involved to institute the action in court while the said 1^st claimant could be said to have retired as the General Secretary to the 3^rd Claimant. It is the submission of counsel further that it is erroneous for the defendant to claim in paragraph 4.3 of their written address that the 3^rd claimant is suing his officers. The defendants are no longer officers of the 3^rd claimant but dissident, rebellious, trouble causing members of the 3^rd claimant who have refused to come into settlement with the claimants before the matter could come to this court. Counsel for the claimant disputed the defendants argument that there was no authorization by the 1^st claimant to file this suit and so the 2^nd claimant is the only party to the suit. Counsel rather argued that the defendants never knew that the 1^st claimant had already signed for the claimants to sue the defendant before the defendant lured him to join them, perhaps for juicy offer. Indeed, claimants maintained that the 1^st claimant signed an authority letter to lawyers to institute this action and in this regard, faulted the contention of the defendants that this case amounts to abuse of judicial process. Counsel drew the attention of this court to the counter affidavit that the president who being the 2^nd claimant had himself called series of meetings but the defendant rather ignored and went and met with the NLC who conducted an election fielding into the defendant by electing 1^st defendant as the president while the tenure of office of the 2^nd claimant was still subsisting. On these submissions, counsel urged the court to hold that it has jurisdiction to the case and also the claimants having locus standi in the suit.

STRIKING OUT 29^TH AND 31^ST DEFENDANTS AS AGENTS OF DISCLOSED PRINCIPALS AND WHETHER THIS SUIT IS INCOMPETENT FOR NON-JOINDER:

It is the submission of counsel that the acts of the 29^th & 31^st defendants by their letters (an exhibit before the court), this court should be why they should not be struck out for any conduct they carried out. COTECNA INT’L LTD v CHURCHGATE NIG. LTD & ANOR (2010) LPELR-897 SC where the court held that it is not in all situation that an agent is not liable for the act of the principal. As agent who exceeded the bounds of the limit of his authority, such agent will be liable, but unlike in this case. This court was urged to dismiss the P.O 

DECISION OF THE COURT

In determining this preliminary objection, I have carefully read through all the processes filed by both parties in the matter, considered the written submissions and oral arguments of their respective counsel on the basis of which, I adopt in slight terms the three issues formulated by the objectors for clarity.

1. Is the suit of the claimant an abuse of the processes of this court?
2. Is there no consent of the 1^st and 3^rd claimants to bring this suit, to wit divesting the claimants of locus standi and the suit being without any reasonable cause of action?
3. Is this suit incompetent by virtue of non-joinder or misjoinder of the proper/necessary parties? 

Before I delve into this ruling, let me state that on 3/12/2025 Mr. Taiwo Olafioya Esq of counsel moved this court by a Notice of Preliminary objection dated 27/6/2025 and filed in court for an order striking out the name of the 1^st claimant from the suit for lack of consent and concurrence to file the suit and upon consideration of same this court struck out the name of the 1^st claimant (Comrade S.A. Babatunde) from the suit No. NICN/LA/109/2025.

I now proceed to deal with the issues raised above. Issue one is about abuse of the processes of this court. Abuse of court process means simply the improper use of the legal process. It is realized when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effectual administration of justice. A proceeding which is wanting in bona-fide and therefore frivolous, vexatious and oppressive. See ADENIYI v FRN (2012) 1 NWLR PT 1281 P.284 and CBN v AHMED (2001) 11 NWLR PT724 P.369. However, an action cannot be an abuse of process of court when the plaintiff has locus standi and the statement of claim discloses a cause of action. In other words, a party who is exercising a constitutional right cannot be said to be abusing the process of a court. See ADESOKAN v ADEGOROLU (1997) 3 NWLR PT493 P.261. It is therefore plain if the party has locus standi, the statement of claim discloses cause of action and the party has constitutional backing to institute the suit, it cannot be said the party has abused the court process.

In assessing the yardstick of the law about abuse of the process of court, it is necessary to look into the materials placed before the court especially the statement of facts filed by the claimant and also the facts provided in the supporting affidavit to the application of the applicant. The claimant stated much about the basis of their suit in paragraphs 1-10,14-17(a)-(f),18,21-29,31,35(a)-(c),36&38 and the reliefs being claimed by the claimants clearly contain facts that require this court to properly see into through process of trial. Similarly, reading through the affidavit and counter affidavit in this matter, it is apparent that the only saving grace of this matter is to proceed to the trial or hearing of the entire suit so that the real issues in controversy could be treated on the basis of evidence, but not the affidavit evidence in this application. Arising from what I stated above, I find the suit not an abuse of the processes of this court in any way. I so hold.

Counsel challenged that the 3^rd claimant did not have the authority to institute the action since there has not been resolution of members granting the authority. To my mind, in an organization passing through leadership tussle as revealed from the facts of this case, it is not and could not be so ordinarily easy for such a resolution be obtained as contended by the applicant’s counsel. It is plain that facts deposed in the affidavit in support of the application are infiltrated with impossibilities to be fulfilled by the claimants in view of the exigencies surrounding the case. I agree with the submissions of the claimants’ counsel that the arguments of the defendants’ counsel are not centered on points of law in relation to the circumstances of the case but on facts. On this basis I find that it would be improper to dismiss or strike out a case at an interlocutory stage. It is certain that defendants/applicants counsel merely argued the facts rather than law. The 3^rd claimant is an artificial person that acts through the 2^nd defendant in the suit and also can sue. It is on record as on the face of the processes that the 2^nd claimant holds position as president of the 3^rd claimant and by this, I hold the 2^nd claimant as in the instant action having locus standi to sue as is done in the case at hand, since the 2^nd claimant herein maintains his real name by which he is known. It is shown from the counter-affidavit and indeed submissions of counsel that the 2^nd claimant is the president of the 3^rd claimant and has called for series of meetings, but the meetings were shunned away by the defendants who rather joined hands with the NLC and conducted another election. These facts as deposed before the court can only be resolved through a trial where the documents in issue annexed as Exhibits could be assessed, analyzed and evaluated. The applicant has indeed failed to show from the affidavit in support of the application that the claimants’ case lacked any legal basis or that it is one without merit. A close look into the statement of defence filed gives me an impression that the case proceeds to trial rather than terminating it at the interlocutory. It is pertinent not to make pronouncement on the facts averred by parties in their respective claims and defence at this point in disguise of determining the application as constituted.

Based on the above, I find no abuse of the processes of this court by the claimants as they are pursuing their constitutional rights of access to court to ventilate their grievances, after all, the 3^rd claimant being an artificial person and duly registered can sue and be sued in the legal palace by its corporate name as a legal entity in this case.

Now, could it be said that the claimants’ case is incompetent by virtue of the contention that there was no consent of the 1^st and 3^rd claimants to bring the action and also the failure of the claimants to explore the internal mechanism to resolve the dispute? Some contentious and unresolved facts are traded by the parties in this matter which will require insightful analysis of facts and law. This, if I venture to doing, will certainly lead me to touching on the substance of the main action. It is the rule that care must be taken not to delve into the substantive suit and decide same at this interlocutory stage. Doing this, risks prejudging the main trial. The role of this court at this stage, is to focus on the preliminary matter but not the core dispute. From the materials placed in this application, it is clear which I consider overlaps with the main case. The issue raised in above will lead this court go into analysis of the pleadings of the parties and the law to which outrightly touching on the substance of the case which I must avoid at this stage. See EFCC v KOGI STATE GOVT & ORS (2023) LPELR-60378 CA, per Mbaba JCA where it was held that a court must not delve into the substance of the case while taking the interlocutory or interim application. See also the Supreme Court in RE-ABDULLAHI (2018) LPELR-45202 SC where the Apex court held that the law frowns seriously on a court taking on substantive issues fit only for the appeal when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its ruling on the application which might prejudge the main issue in the proceedings relative to the said application.

It is therefore in place to hold that the action before the court is proper and there is a reasonable cause of action in view of my assessment. In fact, reasonable cause of action simply, is a valid lawsuit which the claimant maintains based on the facts in the pleadings that gives the claimant the right to bring the case and asks for remedy with chance of success or not. See Tobi JCA (as then he was) (of blessed memory) in SODIPO v LAMMINKAINEN (1992) 8 NWLR PT 258 P.229 @ 242 where he held about a reasonable cause of action as “The phrase comprises every fact which is material to be proved to enable the plaintiff to succeed, it means a factual situation the existence of which entitles the plaintiff to obtain from the court a remedy against the defendant, it means the plaintiff has some chances of success when the allegations in the pleadings are considered, notwithstanding the fact that the case may be weak or unlikely to succeed.”

The applicants further maintained that the 29^th and 31^st defendants name be struck out for nondisclosure of any cause. In other words, it is argued that the 29^th and 31^st defendants are not properly joined in the suit. Taking a close-range study of the facts before the court, it is shown that the defendants are those who wrote letters which are exhibited in the suit. It is therefore clear that they transacted in the process which culminated in the case. It is on this basis that I agree with the submissions of counsel for the respondents that the names of the 29^th and 31^st defendants be maintained as parties in the suit. Thus, I refuse to strike out their names as parties to the main suit.

The law is trite that a person to be joined must be someone whose presence is necessary and as such making him a party is that he would be bound by the result of the action, which cannot be effectually and completely settled unless he is a party. See the case of GREEN v GREEN (1987) 3 NWLR PT 61 P. 480 wherein the court held that proper party are ones who though not interested in the plaintiff’s case, but made parties for good reason. It should not be forgotten that by order of this court sought and granted, the 1^st claimant’s name was struck out for reasons contained in the ruling given by this court on 3/12/2025, however it was only after the ruling given, striking out the name of the 1^st claimant that counsel for the 2^nd and 3^rd claimants concluded the filing of their counter affidavit against the preliminary objection of the 1^st claimant. I find that it is too late and very strange for this court to visit the said counter affidavit for any purpose, the 1^st claimant is no more a party in this case as I ruled on 3/12/2025 and remain so.

Thus, from the foregoing, I resolve all the issues raised against the defendants/applicants in this preliminary objection. I find the preliminary objection unmeritorious which must be dismissed. Accordingly, it is hereby dismissed. I make no order as to cost. This ruling is accordingly entered.

 

 

……………………………………………..

HONOURABLE JUSTICE S.A. YELWA

(Judge)