IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 28 MARCH 2023                              SUIT NO. NICN/ABJ/269/2022

 BETWEEN

1.  The Incorporated Trustees of Social-Economic

Rights and Accountability Project (SERAP)

2.  Dongo Daniel Davou

3.  Oyebode Joshua Babafemi

4.  Ejie Kemkanma

5.  Peter Itohowo Aniefiok

6.  Imam Naziru                                                                                   -                          Claimants

AND

1.  President Federal Republic of Nigeria

2.  Minister of Labour and Productivity

3.  Attorney General of the Federation                                            -                        Defendants

REPRESENTATION

Miss Atinuke Adejuyigbe, for the claimants.

J. U. K. Igwe SAN, with E. D. Gbetsere, Valentine O. Nonso andMiss Florence Oku-Ita, for the defendants.

RULING

INTRODUCTION

1.   The 1st claimant is not a trade union. It is a civil society organization registered under the Companies and Allied Matters Act (CAMA) with the mandate to promote human rights, democracy, media freedom and anti-corruption in Nigeria, among other objectives. The 2nd to 6th claimants are respectively students of Plateau State University, Obafemi Awolowo University, University of Port Harcourt, University of Uyo and University of Ibadan. The claimants filed this suit on 8 September 2022 vide an originating summons. They posed two questions for determination, and prayed for six reliefs.

2.  The questions posed are:

(1)   Whether the refusal of the Defendants and their agents to implement the terms of the Nigerian Government and Academic Staff Union of Universities [ASUU] Renegotiated 2009 Agreements and the 2020 Memorandum of Action which has occasioned the prolonged strike action is unlawful, inconsistent and incompatible with Nigeria's human rights obligations and constitutes a violation of the citizens’ right to quality education guaranteed under Article 17(1) of the African Charter on Human and Peoples’ Rights, Articles 1 and 3 of the Convention against Discrimination in Education 1960 and Article 13(1) & (2)(c), (e) of the International Covenant on Economic, Social and Cultural Rights 1976.

(2)   Whether the acts of the Defendants and their agents in withholding the remunerations of the members of Academic Staff Union of Universities [ASUU] for the period of the strike while at the same time paying members of sister staff unions is discriminatory and in violation of ASUU members’ right to freedom of association, right to strike and collective bargaining guaranteed under Section 39 and 40 of the Nigerian 1999 Constitution [as amended], Article 87 of ILO Convention on Freedom of Association and Articles 2, 10, 15, and 24 of the African Charter on Human and Peoples' Rights and Articles 6, 7, 8(1) & (3) of the International Covenant on Economic, Social and Cultural Rights 1976 and Article 22 of the international Covenant on Civil and Political Rights 1976.

3.  The reliefs they prayed for are:

(1)   A DECLARATION that the refusal of the Defendants to implement the terms of the FGN-ASUU Renegotiated 2009 Agreements and the 2020 Memorandum of Action which has occasioned the prolonged strike action is unlawful, inconsistent and incompatible with Nigeria’s human rights obligations and constitutes a violation of the citizens’ right to quality education guaranteed under Article 17(1) of the African Charter on Human and Peoples’ Rights, Articles 1 and 3 of the Convention against Discrimination in Education 1960 and Article 13(1) & (2)(c), (e) of the International Covenant on Economic, Social and Cultural Rights 1976.

(2)   A DECLARATION that the acts of the Defendants and their agents in withholding the remunerations of the members of Academic Staff Union of Universities [ASUU] for the period of the strike while at the same time paying members of sister staff unions is discriminatory and in violation of ASUU members’ right to freedom of association, right to strike and collective bargaining guaranteed under Section 39 and 40 of the Nigerian 1999 Constitution [as amended], Article 87 of ILO Convention on Freedom of Association and Articles 2, 10, 15, and 24 of the African Charter on Human and Peoples’ Rights and Articles 6, 7, 8(1) & (3) of the International Covenant on Economic, Social and Cultural Rights 1976 and Article 22 of the International Covenant on Civil and Political Rights 1976.

(3)  AN ORDER directing the Defendants and their agents to implement forthwith the terms of the Renegotiated 2009 Agreement and the 2020 Memorandum of Action in order to put an end to the strike action and desist from further violation of the rights of the Nigerian students to quality education in line with Nigeria’s obligations under International human rights law especially Article 1 of the African Charter on Human and Peoples’ Rights, the International Covenant on Economic, Social and Cultural Rights and the Revised ECOWAS Treaty 1993.

(4)  AN ORDER mandating the Defendants and their agents to immediately release and pay all the withheld and outstanding remunerations, salary, allowances and other emoluments both for the period and outside the period of the current strike action to all members of the Academic Staff Union of Universities [ASUU].

(5)    AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants and their agents from unlawfully reneging, rescinding and/or refusing to implement the Renegotiated FGN-ASUU 2009 Agreement and the 2020 Memorandum of Action.

(6)      SUCH FURTHER orders the Honourable Court may deem fit to make in the circumstances of this suit.

4.     In opposing the originating summons, the defendants filed on 15 September 2022 a preliminary objection brought pursuant to section 254C(1)(a) of the 1999 Constitution, sections 17 and 43 of the Trade Disputes Act (TDA) Cap. T8 LFN and the inherent jurisdiction of this Court. And on 23 September 2022, the defendants filed their counter-affidavit with the supporting written address.

5.  In considering the case, the Court informed the parties that only the preliminary objection will be taken and considered first, not the merit of the originating summons. This ruling is accordingly on only the preliminary objection of the defendants.

6.  The preliminary objection of the defendants is praying for:

(1)   AN ORDER declaring that this Honourable Court has no jurisdiction and should not exercise any jurisdiction to entertain this suit as constituted by the Claimants to the originating summons on notice filed in the registry of this Honourable Court.

(2)   AN ORDER dismissing this suit or setting aside the proceedings on this suit by this Honourable Court for want of jurisdiction.

ALTERNATIVELY

(3)   AN ORDER striking out all reliefs stated in the Claimants’ originating summons dated 8 September and filed same 8 September 2022: Reliefs 1, 2, 3, 4, 5 and 6 as constituted by the Claimants for want of jurisdiction.

7.  The grounds upon which the preliminary objection is sought are:

(1)  ABSENCE OF LOCUS STANDI BY THE CLAIMANTS Particulars

(i)     The Claimants are not parties to the terms of ‘FGN-ASUU negotiated 2009 agreements’ and the ‘2020 Memorandum of Action’ which they claimed were breached by the Defendants in Relief Numbers 1 and 3 of the Reliefs being sought by the Claimant in their originating summons dated 8 September 2022 and filed same 8 September 2022.

(ii)       Not being parties to the ‘re-negotiated 2009 agreements and the 2020 Memorandum of Action’, the Plaintiffs lack the legal capacities to enforce the said ‘agreements' even if made for their own benefits.

(iii)     None of the Claimants is a trade union known to law or a member of the Academic Staff Union of Universities involved in any trade dispute against the Defendants and there is no trade dispute between the Claimants and any of the Defendants.

(2)  ACTION FOUNDED ON ILLEGALITY

(i)     The declarations sought in Relief Nos. 2 and 4 in the Claimant’s originating summons dated 8 September and filed same 8 September 2022 seek to enforce illegality having regard to the provisions of Section 43(1) of the Trade Disputes Act which statutorily requires,

Notwithstanding anything contained in this Act or in any other law –

(a)   where any worker takes part in a strike, he shall not be entitled to any wages or other remuneration for the period of the strike, and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly.

(ii)   An action founded an illegality is void.

(iii)     The Honourable Court has no jurisdiction to grant a declaration founded on illegality.

(3)   SPECULATIVE, HYPOTHETICAL AND ACADEMIC RELIEFS

(i)    Reliefs sought by the Claimants in the originating summons dated 8 September 2022 and filed 8 September 2022 are speculative, hypothetical and academic.

(ii)     This Honourable Court has no jurisdiction over speculative, hypothetical and academic suits.

(4)   ALLEGED BREACH OF NIGERIA’S HUMAN RIGHTS OBLIGATIONS CLAIMED BY THE CLAIMANTS ACCESSORY TO SUBSTANTIAL CLAIMS OF CHALLENGING THE IMPLEMENTATION OF THE TERMS OF THE FGN-ASUU RENEGOTIATED 2009 AGREEMENTS AND THE 2020 MEMORANDUM OF ACTION

(i)    The jurisdiction of this Honourable Court cannot be exercised (and renders this suit incompetent) where as in this case securing enforcement of fundamental rights is an accessory part of implementing the FGN-ASUU agreement 2009 as styled by the Plaintiffs and implementing the 2020 Memorandum of Action.

SUBMISSIONS OF THE DEFENDANTS ON THE PRELIMINARY OBJECTION

8.  To introduce their arguments, the defendants started off with what the main case is about. To them, members of the Academic Staff Union of Universities (ASUU), an organization registered as a trade union by the Registrar of Trade Unions under the “Minster of Labour and Employment” pursuant to sections 3, 4 and 5 of the Trade Unions Act (TUA) Cap T14 LFN, have been on strike since 14 February 2022 and “an (sic) currently on indefinite strike as declared by them”. That the strike continued despite the statutory apprehension of the Minister of Labour and Employment and despite the constitution of a conciliation process for the purpose of settling the trade dispute. Thus, there arose a trade dispute between the Federal Government of Nigeria (FGN) and the ASUU. That deeply concerned about the irreparable losses being caused to the nation by the strike action, the Honourable Minister of Labour and Employment through a notice referred the trade dispute between the FGN and ASUU to the National Industrial Court in the national interest pursuant to his powers under section 17 of the TDA Cap T18 LFN.

9.  After the Referral was instituted in this Court on 7 September 2022 pursuant to section 17 of the TDA and Order 3 Rule 1(f) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), the claimants filed an originating summons against the defendants.

10.   The instant application accordingly challenges the locus standi of the plaintiffs to maintain this suit and shows that in some of the reliefs, the plaintiffs are seeking to enforce illegality and speculations. Accordingly, the defendants through their counsel have filed this notice of preliminary objection dated 15 September 2022 with a 15-paragraph affidavit deposed to by Okechukwu Nwamba, a State Counsel in the Federal Ministry of Justice posted to the Federal Ministry of Labour and Employment as the Legal Adviser on behalf of the defendants. It is also supported by a written address also dated and filed on 15 September 2022. The defendants adopted all the processes in entirety while urging the Court to dismiss or set aside the originating summons.

11.  To the defendants, none of the applicants is a party to the trade dispute between the FGN and ASSU. None of them is a worker employed by the first defendant and none of them in this suit was a party to any of Memorandum of Understanding relied upon by them between the FGN and ASUU, which they seek to enforce through their originating summons dated 8 September 2022 and filed same 8 September 2022. Consequently, the claimants have no locus standing to maintain this action; they are not parties to the agreements which they seek to enforce; in seeking to enforce payment of salaries during the period of strike by persons other than themselves contrary to section 43(l) of the TDA, the plaintiffs’ action is founded on gross illegality and lawlessness and thus, cannot be maintained; the plaintiffs’ claim is speculative, hypothetical and academic; and the alleged breach of ‘Nigerian's human rights obligations’ as purportedly being claimed by the plaintiffs is accessary to the substantial claims of challenging the implementation of the terms of the FGN and ASUU renegotiated 2009 ‘agreements’ and the 2020 memorandum of action.

12.   The defendants submitted a lone issue for determination i.e. whether this Honourable Court has jurisdiction to entertain this suit. The defendants started off with what they termed settled principles of law in regards to jurisdiction, upon which their objection is premised. For instance: jurisdiction is the life wire of any adjudication, citing Drexel Energy and Natural Resources Ltd & 2 ors v. Trans International Bank Ltd [2008] 18 NWLR (Pt. 1119) 399 SC at 419; an action wrongly commenced is incompetent and this will rob the court of the jurisdiction to hear and determine same, citing Samba Petroleum Ltd. & 2 ors v. UBA Plc & 3 ors [2010] 5 - 7 SC (Pt. II) 22 at 42 - 43, Ohakim v. Agboso & 3 ors [2010] 6 - 7 SC 85 at 114 - 115 and Dexel Energy & 2

ors v. Trans Int. Bank Ltd & 2 ors [2008] 18 NWLR (Pt. 1119) 399 SC at 419; [2008] 12 SC (Pt II) 240; where a court purports to exercise jurisdiction which it does not have the proceedings before it and its judgment will amount to a nullity no matter how well conducted, citing Cotecna International Ltd v. Churchgate Nigeria Ltd & anor [2010] 12 SC (Pt. II) 140 at 186 - 187; and jurisdiction cannot be presumed or implied, citing Egharevra v. Eribo & 11 ors [2010] 3 - 5 SC (Pt. III) 93 at 113 and Timitimi & 6 ors v. Chief Amabebe [1953] 14 WACA 344 at 376..

13.    The defendants then proceeded to address the issue of absence of locus standi by the claimants. The defendants cited to paragraphs 4 and 5 of the affidavit of Joel Ekong dated 8 September 2022, which was averred to on behalf of the claimants thus:

(4)     That the 1st Claimant is a civil society organization established pursuant to the Companies and Allied Matters Act, Nigeria with the mandate to promote human rights, democracy, media freedom and anti-corruption in Nigeria, among other objectives. Certified true copes are the certificate of incorporation and Constitution of the first Claimant are attached and marked Exhibit OK1 and OK2 respectively.

(5)     That the 2nd to 6th Claimants are students of Plateau State University, Obafemi Awolowo University, University of Port Harcourt, University of Uyo and University of Ibadan respectively. Copies of identity cards and letter of admissions of the 2nd to 6th Claimants are attached and collectively marked Exhibits OK3(A), OK3(B), OK3(C), OK3(D) and OK3(E).

14.    That all through the length and breath of their affidavit in support of the originating summons, the first plaintiff provided not an iota of fact or particular(s) showing any injury done to it by the defendants. That the defendants have shown in paragraphs 8, 9 and 13 of the affidavit of Okechukwu Nwamba dated 15 September 2022 made on behalf of the defendants that:

(8)    The Claimants were not parties to the understanding which they referred to as an agreement made in October 2009 between the Federal Government of Nigeria and the Academic Staff Union of Universities which they seek to enforce.

(9)   The Claimants were not parties to conciliation meeting between the representatives of the Federal Government and leadership of Academic Staff Union of Universities held on 22 December 2020 at the instance of the Honourable Minister of Labour and Employment which they seek to enforce.

(10)    The Claimants are neither parties to any trade dispute nor involved in any trade or work negotiation whatsoever with the Federal Government of Nigeria and there is no trade or employment dispute between the Claimants and any of the Defendants.

(13) The Claimants have no interest in the remunerations, salary, allowances and other emoluments of members of the Academic Staff Union of Universities which they seek to enforce and have no contract(s) of employment with the Defendants.

15.   The case of the defendants, therefore is that the claimants are busybodies and meddlesome interlopers in filing this suit, relying on: Yar’Adua & 9 ors (Applicants seeking to be joined) v. Congress for Progressive Change [2011] 10 SC 7 at 30, Adesanaya v. President, Federal Republic of Nigeria & anor [1981] 5 SC 112; [1981] 5 SC (Reprint) 69; [1981] 12 NSCC 146 at 177, and Attorneys General of Rivers, Bayelsa & Akwa-Ibom States v. Attorney General of the Federation: In Re: Application By Lagos Chamber of Commerce (Intervener/Applicant) (now reported in [2019] 1 NWLR (Pt. 1652) 91 SC (decided on 17 October 2018 by the Supreme Court), where even a cost of N2 Million was awarded to each set of the Respondents to the application to be borne personally by counsel to the Intervener/Applicant and advised him to have a second look at the rules of conduct for legal practitioners. That in instant case, the plaintiffs seek to challenge the Federal Government on the agreements or understandings the plaintiffs alleged the Federal Government reached with ASUU in 2009 and Conciliation of 2020. Accordingly, that the originating summons dated and filed on 8 September 2022 by the plaintiffs ought to be refused with substantial costs awarded against the applicants.

16.  The defendants went on that it is obvious on the face of the record before this Court that the entity and persons seeking to enforce rights in a trade dispute involving the Federal Government of Nigeria and the Academic Staff Union of Universities are neither parties to the trade dispute nor parties to the various ‘agreements' and conciliations between the parties to the trade dispute: Federal Government of Nigeria and Academic Staff Union of Universities. Whether the agreements and conciliations were made in their own interests or on their behalf (not conceded) cannot cloth them with the rights of parties to the various agreements or conciliations nor with the legal capacities to enforce the said ‘agreements, settlements or conciliations’. That it is an elementary principle of Nigerian law that it is only parties who are privy to a contract that can sue and be sued on it. That in Akparabong Community Bank (Nig.) Ltd v. United Bank For Africa Plc & anor [2020] 8 NWLR (Pt. 1726) 201 at 213 - 214, the Supreme Court upturned the decision of the Court of Appeal and upheld the judgment of the trial court dismissing the application on similar grounds by a meddlesome interloper that lacked the locus standi to institute the action. Accordingly, that the originating summons dated and filed on 8 September 2022 seeking to implement terms of FGN-ASUU renegotiated 2009 ‘Agreements' and 2020 Memorandum of Action by non-parties to those understandings and memoranda ought to be dismissed.

17.     The defendants continued that the first claimant, being ‘a civil society organization established pursuant to the Companies and Allied Matters Act, Nigeria with the mandate to promote human rights, democracy, freedom and anti-corruption’ as claimed in paragraph 4 of their affidavit have not clothed them with the locus standi to institute this action, citing Uwazuruonye v. Governor of Imo State [2013] 8 NWLR (Pt. 1355) 28 SC, and Rebold Industries Ltd v. Magreolo & ors [2015] 1 NWLR (Pt. 1461) 210 SC.

18.    The defendants then referred to paragraphs 9 and 11 of the claimants’ affidavit dated 8 September 2022, where the first plaintiff, without showing how the plaintiffs (sic) did wrong to it averred as follows:

(9) That owing to the lack of proper funding, poor remuneration system, unconducive learning and training environments in public tertiary institutions in Nigeria, the Academic Staff Unions after a protracted strike action in 2009, went into negotiation with the Nigerian Government represented by various Ministries, Departments and Agencies (MDAs), including the 2nd and 3rd Defendants, which birthed the FGN-ASUU 2009 Agreement duly signed on 21 October 2009 (‘FGN-ASUU Initialled 2009 Agreement’) by the representatives of both the Defendants and the Academic Staff Unions, A copy of the FGN-ASUU 2009 20 Agreement duly signed on 21 October 2009 (‘FGN-ASUU Initialled 2009 Agreement’) is attached and marked as Exhibit OK4.

(11) That the Defendants are therefore put on notice to produce the original copy of the FGN-ASUU 2009 Agreement duly signed on 2l October 2009 (‘FGN-ASUU Initialled 2009 Agreement’).

19.   The defendants then cited Charles & anor v. Governor of Ondo State & 3 ors [2013] 2 NWLR (Pt. 1335) 294 CA, where it was held thus:

The Appellants are challenging the alleged violation of section 274 of the Constitution by the 1st Respondent. They must show not only what constitutional interest they seek to protect but also that such interest is substantial, tangible and not vague or caricature. They must also show a violation of their constitutional right for which they are seeking redress. The fact that they have pending cases before the court without more would not satisfy the requirement of locus standi. The Appellants contend that many of their clients are indigent and cannot afford to pay the increased fees. The identities of the alleged indigent clients are not disclosed. There is no averment by anyone of them stating his financial status and/or his inability to pay the new fees. There is also no averment by the appellants that they pay the legal fees of their indigent clients out of their own resources. In any event, it is pertinent to note that there are provisions in the rules of court of various jurisdictions to take care of indigent litigants…

20.  Also relied on are: Adesanya v. The President, Federal Republic of Nigeria [1981] All NLR 1 SC; and Taiwo v. Adegboro [2011] 11 NWLR (Pt. 1259) 562 SC, where Rhodes-Vivor JSC held thus:

The Rule about locus standi is developed primarily to protect the courts being used as a playground by processional litigants, or and meddlesome interlopers, busy bodies who really have no real stake or interest in the subject matter of litigation.

A Plaintiff must satisfy the court that he has locus standi if he is able to show that his civil rights and obligations have been or are in danger of being infringed. There must be a nexus between the Claimant and the disclosed cause of action concerning his rights or obligations and locus standi is determined by examining only the statement of claim.

21.  The defendant proceeded that the plaintiffs are not unaware of Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation SC 319/2013 delivered on 20 July 2018 (now reported in [2019] 5 NWLR (Pt. 1666) 518, 597 - 598, 591 - 592, where the Supreme Court upheld the locus standi of the appellant, a non-governmental organization on environmental degradation only. That in the leading judgment of Nweze, JSC, it was stated thus:

What is obvious, from the Appellants’ pleadings is that the Respondent, a public authority has by these acts complained of, acted in violation both of its constitutional obligation (Section 20 thereof) and its statutory obligations.

22.    To the defendants, this case, limited to environmental degradation wherein the Supreme Court found that the respondent breached its constitutional and statutory powers, is not on all fours with the instant case wherein:

(i)    The second Defendant, Minister of Labour and Employment acted within his statutory powers in apprehending the trade dispute between the Federal Government of Nigeria and the Academic Staff Union of Universities as required by sections 4, 5 and 6 of the Trade Disputes Act.

(ii)     The second Defendant, Minister of Labour and Employment set up a conciliatory process pursuant to section 8 of the Trade Disputes Act.

(iii)    The second Defendant referred the trade dispute between the Federal Government of Nigeria and the Academic Staff Union of Universities to the National Industrial Court in the national interest pursuant to section 17 of the Trade Disputes Act.

(iv)     The Federal Government acted within its constitutional and statutory powers in engaging in negotiations with the ASUU.

(v)   The Plaintiffs have provided no particulars or evidence of insincerity, inaction, abysmal actions and failure, intimidation of ASUU which the first Plaintiff accused the Federal Government at paragraphs 16, 18, 2I, 25 and 29 of its affidavit dated 8 September 2022 how much more, proof of those heinous allegations.

(vi)   The Plaintiffs have not shown any wrong done to them by the third Defendant, indeed, by any of the Defendants.

23.     Citing Centre For Oil Pollution Watch v. NNPC (supra) and Adesanya (supra), the defendants submitted that the facts of this case demonstrate a trade dispute between the Federal Government and Academic Staff Union of Universities already before this Court for adjudication by parties to the ‘agreement’, understandings and conciliations, which the plaintiffs herein seek to enforce. Accordingly, this suit will prejudice the case by the appropriate parties already instituted before this Court as referral made by the Minister of Labour and Employment pursuant to his statutory powers contained in section 17 of the Trade Disputes Act. This suit, therefore, by a non-party to the same trade dispute already before this Court, ought to be set aside.

24.  On the effect on the jurisdiction of this Court, the defendants contended that once there is no locus standi, the court cannot proceed to adjudicate over the matter in issue, citing Central Bank of Nigeria v. Okefe [2016] 4 NWLR (Pt. 1502) 345 at 355, Nyesom v. Peterside [2016] 7 NWLR (Pt. 1512) 452 and Sylvia v. INEC & 2 ors [2015] 3 - 4 SC (Pt. I) 20 at 60. Accordingly, that this Court lacks the jurisdiction to entertain this suit; and so it ought to be dismissed.

25.   The next ground of the objection of the defendants is that this Court has no jurisdiction to grant academic and speculative reliefs. That having not shown their participation in the negotiations or conciliations between the Federal Government and ASUU or any wrong doing done by the defendants against them, reliefs 1, 2, 3, 4 and 5 as sought by the plaintiffs in the originating summons are academic and speculative. That by their own admission in paragraphs 13, 14, 16, 21 and 25 of their affidavit, strike actions were embarked upon by the Academic Staff Union of Universities, not any of the defendants. More so, reliefs 2 and 4 in the originating summons seek payment of remuneration, salaries and allowances to members of the ASUU without complying with Order 3 Rule 12 of the Rules of this Court on particulars of the claim to be contained in a statement of claim as related to remuneration being claimed. That this Court has neither the jurisdiction to determine academic questions nor jurisdiction to grant academic reliefs, citing Ugba & anor v. Suswan & 2 ors [2014] 14 NWLR (Pt. 1427) 264 and 313 - 314,

and Oke & anor v. Mimiko & 4 ors [2014] 7 NWLR (Pt. 1388) 225 at 254 - 255 and 264. The result is that reliefs 1 - 5 in the originating summons dated and filed on 8 September 2022 are liable to be set aside by this Court. Having collapsed, the consequential relief 6 will have no basis to stand at law, citing Awoniyi & 2 ors v. The Registered Trustee of the Rosicrucian Order (AMORC) of Nigeria [2000] 6 SC (Pt. 1) 103 SC at 116, which relied on Hamason (Nigeria) Ltd v Pedrotech (Nigeria) Ltd [1993] 3 NWLR 548.

26.    The defendants moved on to the third ground of objection as to the implementation or otherwise of FGN-ASUU Renegotiated 2009 Agreements, 2020 Memorandum of Action and alleged non-payments of remunerations of members of ASUU in the guise of breach of fundamental rights and access to justice. To the defendants, from reliefs 1, 2, 3, 4 and 5 of the reliefs contained in the originating summons dated and filed on 8 September 2022 the plaintiffs are seeking –

(i)    Implementation of the terms of the ‘FGN-ASUU’ Renegotiated 2009 agreements and the 2020 Memorandum of Action (reliefs l, 3 and 5).

(ii)    Payment of remunerations of members of ASUU for the period of the strike (reliefs 2 and 4).

27.    That all these are claimed in the guise of inconsistency with the fundamental rights to freedom of expressions, and that of the press, right to peaceful assembly and association, (sections 39 and 40 of the Constitution), purported rights under Article 87 of the ILO Convention on Freedom of Association and alleged rights under Article 2, 10, 15 and 24 of the African Charter On Human and Peoples’ Rights, Articles 6, 7 and 8 of the International Covenant On Economic, Social and Cultural Rights 1976 and Articles 22 of the International Covenant on Civil and Political Rights. Accordingly, the main grievance of the plaintiff is the alleged non- implementation of FGN-ASUU agreements and conciliations and allegation of payment or non- payment of remuneration to ASUU. That the linkage of that grievance with unidentified breach of the fundamental rights of the plaintiffs becomes accessory to the main grievance of his challenge to the alleged non-implementation of ‘agreements/conciliations and non payment of remuneration'. That it is trite that to enforce fundamental rights, the aggrieved person must show his entitlement, the damages or injury suffered by him resulting from the actions or inactions complained about or likely infringement against him. That it was based on this that the Fundamental Right (Enforcement Procedure) Rules 2009 provides that to have a cause of action to claim for a breach of fundamental rights, including rights to fair hearing, must be by:

Any person who alleges thot any of the fundamental rights provided for in the Constitution or African Charter On Human and Peoples' Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or likely to be infringed, may apply to the court in the state where the infringement occurs or is likely to occur, for redress.

28.   Citing Maradesa v. Military Governor of Oyo State & anor [1986] 3 NWLR (Pt. 27) 125, Uwazuruonye v. Governor of Imo State (supra) and Rebold Industries Ltd v. Magreola & ors (supra), the defendants submitted that there is nothing before this Court to show the defendants in any way breached the first, second, third, fourth, fifth and sixth plaintiffs’ freedom of expression, including freedom to hold opinions and to receive and impact ideals ad information without interference as provided by section 39 of the Constitution. Also, that same applies to right to peaceful assembly and association. Nothing before this Court shows that the defendants violated the first plaintiff’s right to peaceful assembly and association with anybody. Same applies to the second to sixth plaintiffs. Accordingly, nothing before this Court shows violation of section 40 of the Constitution. Same applies to the bogus references to Articles 2, 10, 15 and 24 of the African Charter on Human and Peoples’ Rights, Articles 6, 7, 8(1) and (3) of the International Covenant on Economic, Social and Cultural Rights 1976 and Article 22 of the International Covenant on Civil and Political Rights 1976 without showing how the plaintiffs (sic) breached those rights as related to each of the plaintiffs and without showing any material (except for the African Charter on Human and Peoples Rights) that confirm the enactment of those international instruments by the National Assembly of Nigeria, referring to The Registered Trustees of National Association of Community Health Practitioners of Nigeria & anor v. Medical and Health Workers Union of Nigeria & ors (SC) [2005] 13 NLLR 156 at 191 - 192, and section 12(1) of the 1999 Constitution of Nigeria 1999, which provides thus: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”.

29.  That having not shown their entitlement to the claim of breach of fundamental right as known to the Constitution and international instruments cited by the first plaintiff, that claim becomes ancillary to the claim of a review or implementation or non-implementation of the ‘agreements/ conciliations’ between the Federal Government and ASUU and enforcement of payment of remuneration to ASUU members and cannot be commenced or secured through the mode chosen by the plaintiffs before this Court, referring to Amale v. Sokoto Local Government & 2 ors [2012] 1 SC (Pt. IV) 45 SC. Accordingly, that this Court will have no jurisdiction to determine the plaintiffs’ action as constituted, as same is incompetent.

30.  The fourth ground of objection is that reliefs 2 and 4 in the originating summons are founded on illegality. To the defendants, the declarations sought in reliefs 2 and 4 seeking that members of the Academic Staff Union of Universities be paid wages and remuneration by the Federal Government of Nigeria are illegal having regard to section 43(1)(b) of the Trade Disputes Act, which provides thus:

(1)   Notwithstanding anything contained in this Act or in any other law –

(b) where any worker takes part in a strike, he shall not be entitled to any wages or other remuneration for the period of the strike, and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly.

31.  To the defendants, an action or declaration founded an illegality is void and the Court has no jurisdiction to grant a declaration founded on illegality or aimed at subverting the rule of law, citing Aghedo v. Adenomo [2015] 13 NWLR (Pt. 1636) “2645” at 303, where the Supreme Court held that “The courts do not encourage illegality on the principle of ex turi causo nonrit-action”. Thus, where a statute provides for a particular mode of conduct or action, only that mode or conduct is valid. Doing the opposite will mean a breach of the statute and void, referring to Corporate Ideal Insurance Ltd v. Ajaokuta Steel Company Limited & 2 ors [2014] 2 SC (Pt. I) at 107, Adesanoye v. Adewole [2006] 7 SC (Pt. III) 19, Wada & 2 ors v. Bello [2016] 17 NWLR (Pt. 1542) 379 and Crutech v. Obetan [2011] 15 NWLR (Pt.1271) 588 at 608. Accordingly, that urging this Court to make an order that the Federal Government pays members of the Academic Staff Union of Universities wages and remuneration for the period that they have been on strike since 14 February 2022 is urging this Court to endorse illegality.

32.   Also, that both the Federal Government and Academic Staff Union of Universities and or parties in this matter are legally incapable of agreeing to waive the provisions of statute or agree to allow the court to make an order that will result in illegality. Parties cannot by agreement or consent waive illegality and confer jurisdiction on a court to enforce illegality. That it is trite that jurisdiction cannot be presumed or implied nor can it be conferred on a court by an agreement or purported agreement between the parties, citing Egharevra v. Eribo & 11 ors [2010] 3 - 5 SC (Pt. III) 93 at 113, Timitimi & 6 ors v. Chief Amabebe [1953] 14 WACA 344 at 376 and Huebuer v. Aeruonautical Industrial Engineering and Project Management Co. Ltd [2017] 14 NWLR (Pt. 1586) 397 SC. That this Court has no jurisdiction to make orders that will result in illegality or make orders that will endorse illegality, citing Cotecna International Ltd v. Churchgate Nigeria Ltd & anor [2010] 12 SC (Pt. 11) 140. Accordingly, this Court has no jurisdiction to grant prayers 2 and 4 as contained in the originating summons, as granting same will result in breach of the law.

33.   In conclusion, the defendants urged the Court to dismiss this originating summons or set it aside.

SUBMISSIONS OF THE CLAIMANTS IN OPPOSITION TO THE PRELIMINARY OBJECTION

34.   The claimants in opposition to the preliminary objection started off with whet they termed were the background facts; and here, they started with the falsehood that they commence this suit vide a writ of summons. The suit was commenced on 8 September 2022 vide an originating summons. To them, they instituted this suit as concerned interventionist organization and then as students or persons directly affected by the perennial strike actions arising from gross failure of

the defendants to implement the terms of agreements made with the Academic Staff Union of Universities (ASUU).

35.    That on Thursday, 14 December 2006, the defendants inaugurated the FGN/ASUU Re- negotiation Committee which met immediately after inauguration and re-affirmed mutual commitments to “address the identified rot in the University System, as evidenced in the dilapidated infrastructure and poor conditions of service”. In the course of their meetings, issues were raised, papers were submitted and proposals were made which reflected the views of ASUU on various issues in the 2001 FGN/ASUU Agreement. That the essence and terms of reference of the FGN/ASUU Re-negotiation Committee were:

(i)    To reverse the decay in the University System, in order to reposition it for greater responsibilities in national development;

(ii)    To reverse the brain, drain, not only by enhancing the remuneration of academic staff, but also by disengaging them from the encumbrances of a unified civil service structures (sic);

(iii)    To restore Nigerian Universities, through immediate, massive and sustained financial intervention; and

(iv)   To ensure genuine university autonomy and academic freedom.

36.  Consequently, a comprehensive agreement dated 21 October 2009 was executed between the defendants and the ASUU. However, that the defendants repeatedly failed, ignored, and grossly neglected to abide by the terms of the said agreement and indeed have no interest to honour same notwithstanding the concomitant effects of its failure and poor decisions on the claimants. That pursuant to its quest for accountability in public service and unfettered freedom of Nigerians, this suit was instituted as interventionist approach and as commitment to the educational welfare of the Nigerian Students who are also co-claimants in this suit, having witnessed and experienced the perennial effects of the defendants’ willful refusal to implement or honour the agreement under review.

37.   The claimants then submitted a lone issue for determination i.e. whether by the facts and circumstances of this case as constituted, the claimants have the required interest and locus standi to institute this case. To the claimants, the authors of the Halsbury's Laws of England, Volume 10, 4th Edition, at paragraph 715, page 323 stated correctly that jurisdiction is “a very fundamental and priceless commodity in the judicial process. It is the fulcrum, centre piece, or the main pillar upon which the validity of any decision of any Court stands and around which other issues relate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties”, also referring to Ofia v. Ejem [2006) 11 NWLR (Pt. 992) 652 SC and Okonkwo v. Ngige [2007] 12 NWLR (Pt. 1047) 191 SC.

38.      The claimants then referred to Centre for Oil Pollution Watch v. NNPC [2018] LPELR-50830(SC) — as to the meaning of locus standi and how it arose during an era when private law dominated the legal scene and public law had not yet been born; Modibbo Adama University of Technology, Yola & ors v. ASUU [2014] LPELR-24178(CA) — as to when a person is said to have an interest in a thing; and AG Bendel State v. AG Federation & ors [1981] LPELR-605[SC) — as to the need to indicate only a justifiable dispute for locus standi to arise.

39.   The claimant then submitted that in the determination of locus standi, it is the claimants’ counter-affidavit, statement of claim and the reliefs sought that should receive the attention of the Court. That it is the cynosure of the exercise, referring to Disu & ors v. Ajilowura [2006] LPELR-955(SC) and Adesokan v. Prince Adegorolu [1977] 3 NWLR (Pt. 493) 261. That the question, therefore, as to whether or not the claimants have locus standi in a suit is determinable from a totality of all the depositions and documents attached as exhibits to the originating summons. Thus, in dealing with the locus standi of claimants, it is the processes filed by claimants alone that has to be carefully scrutinized with a view to ascertaining whether or not they have disclosed an interest and how such interest has arisen in the subject-matter of the action, citing Disu & ors v. Ajilowura (supra).

40.   That in the instant case, the claimants’ case as contained in the originating summons is in respect of the systemic failure of and the deliberate refusal of the defendants to hold itself accountable to the process of quality education of its citizens by not committing itself to a valid and binding agreement made with ASUU. It is, therefore, not obscure to situate the rights and standing of the claimants in the circumstances. Accordingly, the Notice of Preliminary Objection of the defendants as constituted lacks merit and liable to be dismissed for the following but non- exhaustive reasons.

41.   First, the defendants’ prelude to and the actual arguments and submissions are premised on the erroneous notion that the claimants, not being a party to the FGN/ASUU Agreement, they lack locus to institute this action as constituted. To the claimants, the substantive issue in this case revolves on the parties, contents, extent, effects and enforcement of the FGN/ASUU Agreement. On that basis, the issue as canvassed especially in paragraphs 5.20 of the defendants’ written address cannot be determined at the preliminary stage, citing Sodeinde v. Allen & anor [2018] LPELR-46782(CA).

42.  Secondly, documents or exhibits attached to an affidavit form part of the affidavit in question and it is not possible to raise objection as to its validity, application or admissibility albeit, at the preliminary stage, without running counter to the relevant provisions of the Evidence Act, citing Ezechukwu & anor v. Onwuka [2076] LPELR-26055(SC). That even so, the documents as attached to the claimants’ originating summons clearly show that efforts were made by the claimants by way of letters and entreaties to resolve the lingering but needless issues forming part of the substance of this case, but the defendants neither took steps nor indicated interest to ameliorate the problem. That the claimants are, therefore, right to approach this Court being the last line of defence, urging the Court not to uphold the rights of the applicants in the circumstances as the last hope of the common man, citing Sahara Reporter & anor v. Saraki [2018] LPELR-49738(CA). The claimants then urged the Court to utilize its enormous statutory and inherent powers in “sections 254(1) (a) (b) (d) (f) of the Constitution” and particularly as relating or connected with unfair labour practice or international best practices in labour employment and industrial relation matters.

43.   Thirdly, the hyperbolic submission of counsel in paragraph 5.2 of their written address is patently incorrect. The parties as constituted in this suit entail extant students who are direct victims and also potential victims of the perennial poor handling and insincere commitment to educational process and institutions by the defendants. It is, therefore, illogical for counsel to argue and submit that injuries on them have not been disclosed. The very terms of reference of the FGN/ASUU Agreement encapsulates the welfare, rights and interest of especially the 2nd - 6th claimants who have decided to be heard in accordance with their rights of access to justice and fair hearing as guaranteed by sections 6(6)(c) and 36 of the 1999 Constitution. That the agreement if implemented would inter alia reverse the decay in the University system so as to reposition it for greater responsibilities in national development. The injured rights and interests of the claimants are, therefore, that the university system currently in rot and they are enrolled in a decayed process on account of the defendants and as such, they want to be heard in a calmed and sober setting as this Court and not on the streets. Even so, University students are priceless assets and are on the threshold of a world of useful service to the nation, citing Garba v. UniMaid [1981] 1 NSCC 25; and ABU, Zaria v. Obanla [2021] LPELR-55101(CA). They are to be encouraged to resolve issues concerning their rights and interests and not to be discouraged by frivolities of unfounded applications.

44.     Fourthly, parties have to be given opportunities to present their case, citing Federal University of Agriculture, Makurdi & ors v. Adaiponu [2021] LPELR-54772(CA) and Egbuchu v. Continental Merchant Bank Plc & ors [2016] LPELR-40053(SC). That it is clear from the affidavit evidence and documents attached that this suit as constituted is not restricted to only the defendants and ASUU as contended. The claimants are vicariously liable to the effects and intent of the agreement under review and there (sic) are indeed privy to the agreement and consequences and ought to be heard as per their claim and terminated in limine as contended by defendants’ counsel (sic). There can be no fair hearing or compliance with rules of natural justice without full and fair hearing of the totality of substantive issues raised by claimants.

45.  Fifthly, and further to the above, the defendants contended that the claimants are non-parties to the agreement under review. That this is also certainly not correct. That the concept of privity of contract is much more than that. A party can be privy to contract without being expressly mentioned. And the law also has been that the heading of a document is of no importance. Argument of counsel on the mere basis of the heading of the agreement between the FGN/ASUU is of no moment as the contents thereof encompass also the rights and interest of the claimants and this can only be determined during the hearing of the substantive suit. Argument, therefore, cannot be built only on the basis of a heading of a document as heading of a document is of less importance, referring to Nwachukwu v. Boji-Boji Microfinance Bank Nig Ltd [2013] LPELR-20309(CA).

46.  That it is a cardinal rule of interpretation of statutes that the heading cannot control the plain words of the statute (or an agreement) as in this respect, citing R v. Surrey Assessment Committee [1948] 1 KB 29 at 32. The claimants then submitted that the defendants cannot merely rely on the headings of the agreement and reach a conclusion albeit at the preliminary stage that the claimants are non-party to the agreement. Whereas the scope and effects of the agreement are rightly or wrongly binding and would have both imminent and potential effects on the claimants who are also students of the various Nigerian Universities being affected by the standoff. That they are certainly privy to the agreement under review.

47.   To the claimants, the word “privy” is much more than the scope and argument proffered or the view envisaged by the defendants in their application, citing Ndulue & ors v. Obinaguoha & ors [2013] LPELR-2257 6(CA), where Agim, JCA (as he then was) held thus:

The word privy refers to a person having a legal interest of privity with another in any matter, or property. Black’s Law Dictionary (9th Edition) at P. 1320 explains that - A person having a legal interest of privity in any action, matter, or property; a person who is in privity with another. Traditionally, there were six types of privies: (1) privies in blood such as an heir and an ancestor; (2) privies in representation, such as an executor and a testator or an administrator and an intestate person; (3) privies in estate, such as grantor and grantee or lessor and lessee; (4) privies in respect to a control - the parties to a contract; (5) privies in respect of estate and contract, such as a lessor and lessee where the lessee assigns an interest, but the contract between lessor and lessee continues because the lessor does not accept the assignee; and (6) privies in law, such as husband and wife. The term also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim.

48.   That from the foregoing, the rights, interest or locus of the claimants are not restricted or circumvented by the mere fact they were not expressly mentioned in the agreement upon which they seek judicial intervention. They are indeed privy to the said agreement and they are entitled to the derivative claim stated therein in the agreement. The notorious fact which is now before the Court is that the Nigerian students have been at the receiving end of the actions and inactions of the defendant and ASUU. It is only logical and encouraging that they have decided to seek the judicial intervention in the circumstance and to argue that they have no standing to do so is aberrant and must be discouraged by this Court. Further so, the defendants ought not to even lay claim to protection or safety of an agreement they do not respect or of which terms they continue to abuse and so this Court should not lend any support in the circumstance. The defendants, having failed to perform their obligations contained in the FGN/ASUU Agreement and upon which basis this action was instituted, therefore, cannot take advantage of or portend to disclaim that the claimants are not party to the agreement, referring to Ideh v, Zenith Bank & anor [2020] LPELR-51283(CA).

49.   Furthermore, that Uwazuruonye v. Governor of Imo State & ors [2012] LPELR-20604(SC) and such other cases cited by defendants are of no assistance to the defendants. That in

Uwazuruonye, the apex court held that “a cause of action is the fact or combination of facts which gives rise to a right to sue or institute an action in a Court of law or tribunal. The term also includes all things which are necessary to give a right of action and every material fact which is to be proved to entitle the plaintiff to succeed/relief”. That this further sustains the argument that dismissal of claimants’ claim at the preliminary stage is erroneous. Furthermore, unlike the cited case where the Supreme Court clearly pointed out that the “identities of the alleged indigent clients are not disclosed”, in the instant case, there is no issue on the identities of the claimants of which the 2nd to the 6th are undergraduates of the various Nigerian Universities. They are amongst the affected and they have rights to institute this action as constituted.

50.  Again, that the argument and submissions in paragraph 6 of the defendants’ written address is in error. It is indeed yet another reason why the matter should proceed to substantive hearing. That although the argument of counsel is now academic, owing to the ruling delivered on Wednesday, 21 September 2022 on application of the defendants by Hon. Justice P. I. Hamman in the sister case in Suit No. NICN/ABJ/270/2022, which is compelling ASUU to call off the strike. The further argument on issues of not stating particulars of claim on remuneration on the statement of claim is certainly an issue for the substantive hearing and which cannot be determined by the preliminary objection of defendant. The reliefs as contained in the claimants’ suit are alive, valid and subsisting and are in no way academic or consequent on another as such; cases referred to especially, in paragraph 6.1 are of assistance to the defendants.

51.   The claimants went on that the defendants’ arguments in paragraphs 7.1 - 7.8 are on the premise that reliefs sought by claimants are only within the precincts of rights to freedom of expression, press, peaceful assembly and association. That these are patently incorrect. The record is before the Court. That the questions submitted before this Court as contained in the substantive application are on gross failure of the defendants to abide by the terms of an agreement they executed and its ripple effects on the rights and interests of the claimants as pertaining to quality education process and institutional building. The terms of the agreements, if implement by the defendants, would address rot in the University system in which the claimants are students.

52.  Furthermore, the reliefs sought are for enhanced quality education as a right of the claimants. These rights were acknowledged and confirmed by the 1st defendant on Thursday, 29 July 2021, during a panel session at the Global Education Summit in London, United Kingdom, he noted thusly: “You can’t succeed outside your educational qualification. Anybody who missed education has missed everything. Nigerians are acutely aware of priority of education and parents are making sacrifices to ensure that their children and wards get educated”.

53.  That just recently, on Monday, 19 September 2022, the 1st defendant spoke while delivering Nigeria’s statement at Transforming Education Summit (leaders’ roundtable) organized on the margins of the 77th session of the United General Assembly, the 1st defendant stated in the following words: “As we are aware, improving equitable and inclusive access to quality educational opportunities is germane to ensuring the full development of our societies. No country can develop beyond the capacity of its educational system”.

54.  More so, the international human rights law guarantees the right to education. The Universal Declaration on Human Rights, adopted in 1948, proclaims in Article 26: ‘everyone has the right to education’. Since then, the right to education has been widely recognized and developed by a number of international normative instruments elaborated by the United Nations, including the International Covenant on Economic, Social and Cultural Rights (1966, CESCR), the Convention on the Rights of the Child (1989, CRC), and the UNESCO Convention against Discrimination in Education (1960, CADE). That the right to education has also been reaffirmed in other treaties covering specific groups (women and girls, persons with disabilities, migrants, refugees, Indigenous Peoples, etc.) and contexts (education during armed conflicts). It has also been incorporated into various regional treaties and enshrined as a right in the vast majority of national constitutions, referring to Wiri & ors v. Wuche & ors [1980] LPELR-3498(SC) on the importance of education.

55.   The claimants then submitted that from the foregoing, the reliefs they seek are just and meritorious and they have the right to do so as their interest to quality education is a fundamental right.

56.  The claimants continued that the arguments and submissions of the defendants in paragraphs

8.1 - 8.10 is a further issue on the substantive suit that is unfit for preliminary determination. More so, on Wednesday, 21 September 2022, on application of the defendants, this Court delivered a ruling in the sister case in Suit No. NICN/ABJ/270/2022, which compelled the claimants to call off the strike. That argument of counsel on this point is, therefore, academic. Conversely too, that the defendants are the guilty party in the circumstances. The defendants cannot fail to keep to terms of the FGN/ASUU Agreement and then turn around to take benefits thereof and then utilize the judicial process as a process of victimization, citing Ideh v. Zenith Bank & anor (supra). That the defendants, having failed to respect the agreed terms in the agreement under review, it would then be incongruous to seem to take benefits of the legal and equitable rights thereof. But then again, these are substantive issues that cannot and should not be resolved at the preliminary stage as contended by defendants. The claimants then prayed for the instant suit to be consolidated with the Suit No. NICN/ABJ/270/2022 for effective and effectual resolution of issues involved.

57.    Also, important, that the defendants’ affidavit in support of the Notice of Preliminary Objection dated 15 September 2022 was deposed to by legal practitioners in the office of the 3rd defendant. In the said affidavit, one Okechukwu Nwamba, a legal practitioner, a state counsel in the office of 3rd defendant is the deponent. The deponent is said to be very conversant with the facts of this case. That the depositions in the said affidavit are in direct conflict with the provisions of Order 20 (4) of the Legal Practitioners' Rules of Professional Conduct, 2007 and so must be discountenanced, citing Akinlade v. INEC [2020] 17 NWLR (Pt. 1754) 439 at 457, which discountenanced a counter-affidavit filed by a lawyer who was "a Legal Practitioner in the Law Firm of Ahmed Raji & Co, counsel to the Appellants”. Also cited by the claimants is Gov of Oyo State & ors v. Regd Trustees of Boys Scout of Nigeria [2020] LPELR-50279(CA), which denied Obafunso Ogunkeye Esq., of counsel the right of wearing two hats in the case — as both a counsel and a witness.

58.   That the deponent in the introductory paragraphs of the affidavit affirmed that he is very conversant with the facts of this case. That there is no doubt that the deposition is on contentious issues. That a legal practitioner cannot, therefore, be allowed to depose to a contentious affidavit as in the instant suit. That doing so would run counter to the above cited provisions of the Rules of Professional Conduct and the settled pronouncement of the higher courts. The claimants accordingly urged the Court to discountenance the said affidavit as held in Akinlade v. INEC (supra).

59.   In conclusion, the claimants urged the Court to discountenance the defendants’ application and the reliefs they seek.

REPLY ON POINTS OF LAW BY THE DEFENDANTS

60.  The defendants did not file any written reply on points of law. Instead, they filed additional authorities. In moving their preliminary objection, the defendants drew the attention of the Court to the fact that the deponent of the supporting affidavit, Okechukwu Nwamba, is not part of their legal team, and so he can depose to an affidavit, contrary to the argument of the claimants. That this is the essence of the additional authorities the defendants filed on 8 February 2023.

61.    The additional authorities submitted by the defendants in support of their preliminary objection are:

(1)   U. O. O Nigeria Plc v. Okafor & 13 ors [2020] 11 NWLR (Pt. 1736) 409 SC at 455 - 456 and 457:

Our jurisprudence does not recognise nor authorise busybodies to meddle in administration of justice. It also does not, as such, encourage mercenary actions. That is why as a pre-condition the claimant or plaintiff must disclose his locus standi for bringing the action. Locus standi is the legal right or standing the claimant has for bringing the action, and of course, by extension the legal right he has to be heard in litigation before a court of law or tribunal established by law.

Ajagungbude III v. Adeyelu II (2001) 16 NWLR (Pt. 738) 126. The locus standi the claimant has to approach the court and jurisdiction the court has to entertain his complaint are intertwined, and they relate to the competence the court has to entertain adjudicate on the suit. The right the litigant has to the direct and “easy accessibility” to the court secured and maintained by section 17(2)(e) of the 1999 Constitution, as amended, to invoke the judicial powers of the court of law in relation “to all matters” between the claimant und the defendant, under section 6(6)(b) of the Constitution, is only available to the persons, as claimants in whom the right to enforce the cause of action is legally vested without locus standi in the matter the plaintiff has no right of easy accessibility to the court of law to invoke its judicial powers… My Lords, the dictum of Bairamian, F. l. in Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 593; (1962) 2 SCNLR 341 that the court is only competent if, among other things the case comes before the court initiated by the due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction (cited with approval in Skenconsult (Nig.) Ltd. & Anor v. Ukey (1981) 1 SC 6), applies in full force to the instant case. The fact of the appellant lacking the requisite locus standi as condition precedent for taking out this suit to promote the private and personal legal interest of the PWI renders the suit incompetent. I agree with the respondent on this issue.

(2)   Paragraph 20(4) Rules of Professional Conduct for Legal Practitioners, 2007:

If, after undertaking employment in contemplated or pending litigation, a lawyer: learns or it is obvious that he or a lawyer in his firm ought to be called as witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, but he or a lawyer in his firm may testify in the circumstances enumerated in sub-rule (2) of this rule.

COURT’S DECISION

62.   I took my time to consider the processes and submissions of the parties. I start off with paragraph 5.12 of the claimants’ written address, where the claimants urged this Court “to utilize its enormous statutory and inherent powers in sections 254(1) (a) (b) (d) (f) of the Constitution and particularly as relating or connected with unfair labour practice or international best practices in labour employment and industrial relation matters”. There is no such provision as “sections 254(1) (a) (b) (d) (f) of the Constitution”. There is only a section 254 of the Constitution; and a section 254C(1)(a), (b), (d) and (f) of the 1999 Constitution.

63.    The defendants’ affidavit in support of the Notice of Preliminary Objection dated 15 September 2022 was deposed to by Okechukwu Nwamba (State Counsel), a legal practitioner in the office of the 3rd defendant, said to be very conversant with the facts of this case. The claimants complained that the depositions in the said affidavit are in direct conflict with Rule 20(4) of the Legal Practitioners’ Rules of Professional Conduct 2007 and so must be discountenanced.

64.  I am aware that generally the law frowns on legal practitioners deposing to affidavits, but this frown relates to legal practitioners who are counsel in a matter and who stand the risk of being called to testify on the sworn affidavit in issue, or vouch for the truth or accuracy of information derived from clients. See Ibeto & anor v. Oguh [2022] LPELR-56803(CA) per His Lordship Affen, JCA. Mr Okechukwu Nwamba, who deposed to the affidavit in support of the preliminary objection, is not a counsel in this matter. He never announced legal appearance in this matter. His appearance was announced only as representing the defendants as parties. See page 7 of the handwritten record of proceedings of this case. By this appearance, he can appear as a witness