IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE:  5^TH NOVEMBER 2024                            

SUITNO: NICN/IB/09/2022

 

BETWEEN

Mr. Oyediran Oyewale                                                                                Claimant

 

b

1. Association of Science Laboratory Technologists of Nigeria

    (Oyo State Chapter)

2. Oyewumi Titiloye John

    (Chairman, ASLTON Electoral Committee 2021)

3. Salami Olanitan Musiliu

    (Secretary, ALSTON Electoral Committee 2021)                                Defendants

REPRESENTATION

Babatunde Oni for the Claimant

C. U. Okoli for the Defendants

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant, Mr. Oyediran Oyewale, by his General Form of Complaint dated and filed 25/2/22 accompanied by a Statement of Facts and other relevant originating processes of same date commenced this suit and by his Amended General Form of Complaint dated 5/7/22 sought the following reliefs against the Defendants –

1.         A Declaration that the disqualification of the Claimant by the 2^nd and 3^rd Defendants from participating in the 11^th August 2021 Election of the Oyo State Chapter of the Association of Science Laboratory Technologists of Nigeria is unlawful and against principles of fairness, equity and justice.

2.         A Declaration that Section 9 of the Association of Science Laboratory Technologists of Nigeria (ASLTON) Constitution is the only lawful electoral guidelines for election into elective positions in Association of Science Laboratory Technologists of Nigeria (ASLTON).

3.         A Declaration that the Election of the Oyo State Chapter of the Association of Science Laboratory Technologists of Nigeria conducted by the 2^nd and 3^rd Defendants on the 11^th August 2021 is null and void having failed to adhere to Section 9 of the Association of Science Laboratory Technologists of Nigeria (ASLTON) Constitution.

4.         An Order of this Honourable Court directing the Defendants to re-conduct the Oyo State Chapter of Association of Science Laboratory Technologists of Nigeria, 2021 election in line with Section 9 of the Association of Science Laboratory Technologists of Nigeria (ASLTON) Constitution.

5.         The sum of =N=2,000,000.00 (Two Million Naira) as General Damages for unlawfully disenfranchising the Claimant in the said election.

6.         Cost of this Action.

 

2.         The Defendants filed a Memorandum of Appearance on 27/5/22 and a joint statement of defence on 20/10/22 along with witness statement on oath, list as well as copies of documents to rely on at trial.

 

2.         Case of the Claimant

3.         Claimant opened his case on 24/7/23 when he testified as CW1. He adopted his witness deposition of 25/2/23 as his evidence in chief and tendered 8 documents as exhibits. the documents were admitted in evidence and marked as Exh. 001 -Exh. 008. CW1 also adopted his additional statement on oath of 7/11/22 as his additional evidence in chief.

 

4.         The case put forward by the Claimant as revealed in his pleadings and evidence led is that he is a financial member of the 1^st Defendant; that he obtained Form to contest for the position of Vice Chairmanship in the 11^th August 2021 Election of the 1^st Defendant Executives; that the 2^nd Defendant who was the Chairman of the Electoral Committee announced his disqualification at the venue of the election when the election was about to start orally and without justification and thus disenfranchised him from participating in the election. It is the case of the Claimant that letters were written on his behalf demanding explanation and apologies from the Defendants but to no avail and that mediation meetings held to resolve the issue amicably proved abortive hence this case was instituted.

 

5.         In the course of cross examination, CW1 testified that as at 11/8/21 he was a practicing professional Technologist/Scientist; that to be a professional technologist/scientist one must have sat for and passed the examination; that to practice one needs a yearly practicing licence issued by the Nigerian Institute of Science Laboratory Technologists attached to the Federal Ministry of Science & Technology; that to qualify for a yearly practicing licence a member must pay yearly dues and that as at 11/8/21 he was a financial member of the 1^st Defendant. CW1 added that the Chairman of the Electoral body disqualified him because he did not produce the practicing licence for that year; that he does not know why the Nigerian Institute of Science Laboratory Technologists is not a party to this suit and that he does not know that the Constitution of the 1^st Defendant makes provision for petition.

 

3.         Case of the Defendants

6.         The Defendants opened their case on 25/7/23. The 2^nd Defendant testified as DW1 for the Defendants, adopted his witness statement on oath of 20/10/22 as his evidence in chief and tendered 4 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D4. Witness further adopted his deposition of 5/12/22 as his additional evidence in chief.

 

7.         The case of the Defendants is that the Claimant was one of the 10 candidates who applied to contest for elective offices of the 1^st Defendant; that a major condition for qualification for the election is that of financial membership of the Association; that the Electoral Committee sent the names of all the candidates to the Nigerian Institute of Science Laboratory Technology which is the mother body of the 1^st Defendant to verify the financial status of the 10 candidates; that the report from the Institute came on 11^th August 2021 and 3 contestants including the Claimant were disqualified for not having paid their practicing fees for the year 2020 and 2021 as stipulated in the Electoral Guidelines and that the disqualification of the Claimant was because he was not a financial member of the 1^st Defendant as at the date of the election.

 

8.         The Claimant elected not to cross examine DW1. The case of the Defendants was accordingly closed and case adjourned for adoption of final written addresses.

4.         Final Written Addresses

9.         On 3/5/24 the Claimant filed a 7-page final written address. It was dated 1/5/24. In it learned Counsel set down a lone issue for determination thus –

 

Whether or not the disqualification of the Claimant by the 2^nd and 3^rd Defendants from participating in the 11^th August, 2021 Election of the Oyo State Chapter of the Association of Science Laboratory Technologists of Nigeria is in line with Section 9 of the Association of Science Laboratory Technologists of Nigeria (ASLTON) Constitution which is the only lawful electoral guidelines for election into elective positions in Association of Science Laboratory Technologists of Nigeria (ASLTON).

 

10.       In arguing this lone issue, learned Counsel submitted, citing Daudu v. FRN (2018) LPELR-43637, that the evidential burden of proof is the burden of adducing evidence to prove or disprove a particular fact and that when a party wishes the Court to believe any fact, the burden of proving that fact rest on that party; that his main contention is that by virtue of Section 9 of the Association of Science Laboratory Technologists of Nigeria Constitution, he was eligible to contest and participate in the 11^th August, 2021 election of the Oyo State Chapter of the Association and that his disenfranchisement by the Defendants minutes before the commencement of the election is unlawful and against principles of fairness, equity and justice citing  Iniama v. Akpabio (2008)17 NWLR (Pt. 1116) 225 & Oke v. Mimiko (2014)12 NWLR (Pt. 1388) 322. Learned Counsel submitted further that the Defendant’s witness statement on oath dated 5/11/22 and filed same date was not timeously served on the Claimant. Counsel urged the Court to discountenance same citing Order 15 Rule 8 of the Rules of this Court. Counsel submitted that the Defendants did not justify the treatment meted to the Claimant; that the Defendants did not act in compliance with the provisions of the Association’s Constitution. Learned Counsel thus urged the Court to hold that the Claimant has sufficiently discharge the evidential burden on him and grant all the prayers sought.

 

11.       On 10/7/24 the Defendants filed their final written address. It was dated 5/7/24 and of 8 pages. In it learned Counsel set down a lone issue for determination as follows –

 

Whether the Claimant has proven his case in accordance with the law having regard to the pleadings and evidence before the Court to entitle him to the declaratory reliefs sought.

 

12.       Arguing this lone issue, learned Counsel submitted that in a claim for declaratory relief as in the instant case, it is mandatory for the Claimant to lead credible and cogent evidence to establish his entitlement to the declarations sought; that declaratory reliefs are not granted on default of defence or even admission citing Kwajaffa & Ors v. B.O.N Ltd (2004) LPELR-1727(SC) & APC v. Adeleke & Ors (2019) LPELR-47736(CA); that it is trite that no one wins a case on the weakness of the other party in civil proceeding but rather on the strength pf his or her case citing Abalaka v. Akinsete & Ors (2023)LPELR-60349(SC). Counsel submitted that Claimant’s claims were not proved on the balance of probability and that the purported pieces of evidence in support of the claims are not worthy to be relied upon by the Court. Learned Counsel submitted further that Claimant failed to prove that his disqualification from the elections conducted on 11^th August 2021 by the 2^nd and 3^rd Defendants is unlawful and against the principles of fairness, equity and justice.

 

13.       According to Counsel, Claimant did not produce his practicing licence which is the prima facie evidence of membership of the Association issued yearly to each member; that by Exh. P4 it is clear that the Claimant was owed practicing fees from 2019. In addition learned Counsel submitted that Section 9(iii)(d) of Exh. P5 clearly states that only current financial member of the Association can nominate and second candidate(s) and vote and be voted for and hence the election of the Association of 11^th August 2021 was held in compliance with the Constitution of the Association. Counsel submitted that Claimant has failed to prove his case and that same should be dismissed.

 

5.         Decision

14.       The facts of this case appear to me to be simple and straightforward. The  

 Claimant is a member of the 1^st Defendant. The 2^nd and 3^rd Defendants were members of the Electoral Committee of the 1^st Defendant set up to conduct the 2021 election of the Association. Claimant applied to contest for the position of Vice Chairman of the Association in the election of that year. His name and those of 2 other candidates for the election were disqualified by the Nigerian Institute of Science Laboratory Technology which is the mother body of the 1^st Defendant on the ground inter alia that the disqualified candidates were not financial members of the Association as required by the applicable Electoral Guidelines for the election. 2^nd and 3^rd Defendants accordingly prevented the Claimant to participate in the election. It is on the basis of the above abridged facts that the Claimant approached this Court for judicial intervention.

 

15.       I read and clearly understood all the processes filed by the parties on either side. I listened patiently to the oral testimonies of all the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted at trial. Having done all this, I set down these issues for the just determination of this case thus –

 

1.         Whether any of the processes filed by the parties is incompetent and should be discountenanced.

2.         Whether the Claimant has led sufficiently cogent and credible evidence in proof of his case to merit an award of some or all the reliefs sought.   

 

16.       In paragraph 3.3 of his final written address, learned Counsel to the Claimant urged the Court to discountenance and strike out of the Court record the Defendants’ witness statement on oath dated 5/11/22 and filed on 5/12/22. The contention of the learned Counsel is that the said process was not served timeously on the Claimant and hence Claimant declined to cross examine DW1 on it. It is the argument of the learned Counsel that Claimant’s additional written statement on oath dated 7/11/22 was filed and served on the Defendants on the same day; that the Defendants’ witness statement on oath filed 5/12/22 was filed out of time within which to react to the Claimant’s process and that the Defendants did not seek and obtain the leave of Court to file an additional statement on oath. It is on this basis that learned Counsel urged the Court to not only discountenance but strike out the Defendants’ witness deposition of 5/12/22. I find of a truth that the Defendant filed its witness deposition of 5/12/22 out of time. I also find that leave of Court was not sought and obtained to regularise same. Accordingly and pursuant to the application of the learned Counsel to the Claimant the Defendants’ witness statement on oath dated and filed on 5/12/22 is here discountenanced and expunged from record of this case.  

 

17.       Aside from this I also note that although the Claimant filed his originating processes on 25/2/22 same were amended on 5/7/22. This was pursuant to an application to that effect by the Claimant which was granted on 22/6/22. Pursuant to the order for amendment, Claimant filed an amended General Form of Complaint dated 5/7/22 on the same day. It was accompanied by a Statement of Claim dated 4/7/22, list of witness dated 4/7/22, witness statement on oath of the Claimant dated 5/7/22 and a list of documents also dated 4/7/22. The amended General Form of Complaint was not accompanied by copies of documents to be relied on at trial. I need to point out that in the initial General Form of Complaint filed on 25/2/22 the Claimant sought only 4 reliefs comprising of 2 declaratory reliefs, an order for the payment of the sum of =N=2,000,000.00 as general damages and Cost of action. On the other hand in the amended process filed on 5/7/22, Claimant sought 6 main reliefs comprising of 3 declaratory reliefs, an order of Court directing the Defendants to re-conduct the Oyo State Chapter of Association of Science Laboratory Technologists of Nigeria 2021 election in line with Section 9 of the Association of Science Laboratory Technologists of Nigeria) ASLTON) Constitution and Cost of action.

 

18.       It is imperative to bear in mind that with the amendment effected the amended processes are dead, buried and consigned to the dustbin of history. They ceased from the date of the amendment to define the issues in controversies between the parties. Therefore for all intents and purposes, the pleadings of the Claimant which properly placed the case of the Claimant before the Court, for which the Claimant is bound and which the Court is to take cognizance of are the Amended General Form of Complaint of 5/7/22. Those are some of the consequences of amendment.

 

19.       The trial of this case commenced on 7/3/23 and continued on 24/7/23 when the Claimant testifying as CW1 adopted his witness deposition of 25/2/22 as his evidence in chief. This is in oblivion of the fact of amended processes filed by the Claimant on 5/7/22. What then is meant by amendment and its purports? An answer to this enquiry is found in the Judgment of Amiru Sanusi JCA in New Nigerian Bank Plc v. Denclag Limited & Anor (2004) LPELR-5942(CA) thus -

 

"...what is the meaning of 'amendment'? The Blacks Law Dictionary, 6th Edition, Centennial Edition (1891 - 1991) defines amendment to mean: "'Amend - To improve. To change for the better by removing defects or faults. To change' (See page 81 thereof)."

 

20.       His lordship further quoted the words of wisdom of Oputa JSC (of blessed memory) in Chief Adedepo Adekeye & Ors. v. Chief Akin Olugbade (1987) 3 NWLR (Pt.60) 214, (1987) 6 SCNJ 127 at 135 thus –

 

"An amendment is nothing but the correction of an error committed in any process, pleadings or proceedings at law or in equity and which is done either as on course or by consent of the parties or upon notice to the Court in which proceeding is pending."

 

21.       The purpose of an amendment is to present the real issues between the parties before the Court and also to enable the Court decide the real issues in contention between the parties. Hamma Akawu Barka, JCA brought this point to the fore without mincing words in Mrs. Florence Osita v. Mrs. Uche Ani (2022) LPELR-59587(CA) in the following words –

 

"Let me say that amendment of pleadings is ultimately to enable the Court decide the real issues in controversy between the parties. That amendment relates to the original pleadings and all amendments before the final amendment cease to be pleadings to be relied upon in the trial. See John Oforishe vs. Nigerian Gas Company Ltd (2017) LPELR - 42766 (SC), Rotimi & Ors vs. Macgregor (1974) 11SC 133."

 

22.       Once an amendment is sought and granted as the Court of Appeal pointed out it relates to the original pleadings. The amended process takes the place of the original or earlier process which ceases to define the issues in controversy between the parties.

 

23.       I dare say that the position of the law as stated in the foregoing is nothing new but rather a mere reinstatement of the law. For as far back as 1974 His Lordship George Baptist Ayodola Coker JSC (of blessed memory) while commenting on effect of an amendment of pleadings in Colonel Olu Rotimi & Ors v. Mrs. F. O. Macgregor (1974) LPELR-2957(SC) had quoted with approval the observation of Hodson, L.J in Warner v. Sampson & Anor (1959) 1 Q.B. 297 at p. 321 thus:

 

"I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried. Here the defendant has obtained leave to amend, and there has been no appeal against that order; and, whatever may have taken place at the hearing of the application to amend, the court must, I conceive, regard the pleadings as they stand, the purpose of amendment being to determine the real question in controversy between the parties..."

 

24.       The appellate judicial authorities are in ad idem on the effect and consequences of amendment as already highlighted above. It is therefore wrong for the Claimant to have based his case on the amended pleadings of 25/2/22 when indeed the pleadings which defined the issues in controversy between the parties is the amended process filed on 5/7/22. The proper step to take in the circumstance is to discountenance the witness statement on oath of 25/2/22 as well as with all other documents tendered and admitted along with it. I so do.   

 

25.       The second issue for determination is whether the Claimant has led sufficiently cogent and credible evidence in proof of his case to merit an award of some or all the reliefs sought. The burden of proof is always on he who asserts. It is discharged on preponderance of evidence in civil proceedings. Both the statute law and the case law support this proposition. The proof required is by cogent, credible and admissible evidence which may be oral or documentary evidence or both.

 

26.       I deem it imperative to bring to the fore the available pleadings of the Claimant upon which he is to found his case. On record I find an Amended General Form of Complaint dated 5/7/22 in which the Claimant seeks 6 reliefs; a 12-paragraph statement of claim, a list of witness and a list of documents all dated 4/7/22 and a 16-paragraph witness statement on oath of the Claimant dated 5/7/22.

 

27.       At trial Claimant did not lead evidence in support of any of his averments in the pleadings filed. Indeed Claimant did not adopt his witness deposition of 5/7/22 and did not tender any of the documents as contained in his list of documents filed. In any event no copies of documents to be relied upon at trial were frontloaded as Order 3 Rule 9 of the Rules of Court required. It is trite that parties are bound by their pleadings. As earlier noted, amended pleadings ceases to define the issues in controversy between the parties. In the resolution of issue 1, this Court has discountenanced the witness statement on oath of 25/2/22 adopted by the Claimant along with all the exhibits tendered via same because that process no longer defined the issues in controversy between the parties. Having done so, it is apparent that the case of the Claimant becomes empty and without a foundation upon which to build same. I accordingly resolve this issue against the Claimant and hold that he failed to lead sufficiently cogent, credible and admissible evidence in support of his claims.

 

28.       This case was filed in 2022. 1^st Defendant is a professional body to which the Claimant belongs. 2^nd and 3^rd Defendants are members of the 1^st Defendant who were appointed by the 1^st Defendant to carry out special assignment for and on behalf of the Association. All the Defendants have been subjected to some financial outlays for the purpose of defending this avoidable suit. This is aside from time invested also in the defence of this case. Cost, it is said, follows events. I hold that the Defendants are entitled to cost of this action. Accordingly, the Claimant is ordered and directed to immediately pay to each of the Defendants the sum of One Hundred and Fifty Thousand Naira only as cost.

 

6.         Conclusion

29.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment I dismiss the case of the Claimant in its entirety.

 

30.       The Claimant is ordered and directed to immediately pay to each of the Defendants the sum of One Hundred and Fifty Thousand Naira only as cost of this action.

 

31.       Judgment is entered accordingly.

 

 

___________________

Hon. Justice J. D. Peters

Presiding