Nigeria Union of Teachers & Ors V. Conference of Secondary School Tutors (Csst) & Ors (2005)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

This is an appeal against the ruling of the High Court of Justice, Agbor Judicial Division presided over by Ohwo, J. The ruling was delivered on 30th September 2002.

In an originating summons issued on the 27th day of June, 2002 against the appellants and the 5th and 6th Respondents, as defendants, the 1st – 4th Respondents, as plaintiffs, sought the determination of the following questions:

“A. Whether the 1st Plaintiff, having been duly registered by Corporate Affairs Commission, Abuja, under part C of companies and Allied matters Act, 1990 has no right to exist.

B. Whether the 2nd – 4th Plaintiffs and all members of the 1st Plaintiff have no right to resign as members of the 1st defendant and be members of the 1st Plaintiff for the protection of their interest having regard to the provision of section 40 of the Constitution of Federal Republic of Nigeria 1999.”

It was a representative action with the Plaintiffs suing for themselves and on behalf of members COSST, (the 1st Plaintiff) Delta State chapter and the 1st to 4th defendants sued as Trustees and representatives of Delta State Wing of N.D.T.

In addition to the determination of the two question reproduced above the plaintiffs claimed against the defendants the following reliefs:

“1. Declaration that 1st Plaintiff has right to exist, having been duly incorporated by Corporate Affairs Commission Abuja.

2. Declaration that the 2nd – 4th Plaintiffs and all members of 1st Plaintiff are at liberty to be such members of the 1st plaintiff for the protection of their interest.
3. Declaration that the 2nd-4th plaintiffs and all members of 1st plaintiff are not bound and cannot be forced to remain or be members of 1st defendant until retirement from service or death.
4. Declaration that the continued deductions and collection of check off dues from the salaries/earnings of the 2nd – 4th plaintiffs and all members of 1st plaintiff as tutors in the employment of Delta State Government by the defendants is unlawful and unjustifiable since the 2nd – 4th plaintiffs and all members of 1st plaintiff are no longer members of 1st defendant.
5. An order of perpetual injunction restraining the defendants either by themselves agents privies servants or whomsoever from deducting or causing to be deducted and/or collecting check-off dues or any sum whatsoever from the salaries/earnings of the 2nd – 4th plaintiffs and all members of 1st plaintiff as tutors or employees with Delta State Government.
6. An order directing the 1st-4th defendants to pay to the plaintiffs all money collected as check-off dues from the salaries/earnings of the 2nd – 4th plaintiffs and all members of 1st plaintiff with effect from the date of filing this suit to the date of Judgment.”

There is a 20-paragraph affidavit deposed to by the 2nd plaintiff with the consent and authority of the other plaintiffs on record and those they represent in support of the originating summons. Exhibited to the affidavit are, inter alia, resignation letters of the plaintiffs on record and those they represent as members of the 1st defendant. The resignation letters also demand that no further deduction be made from the salaries/earnings of those concerned by the 1st defendant. A letter reference No. A 159/Vol.V/26 (certified true copy) of 20/6/88 from Teaching Service Board, Benin City, Bendel State addressed to 11 people who are probably tutors in Amedokhian Secondary School Warri through the principal of the said School referred to “withdrawal from the NUT” and informed those it was addressed to “that motion has been taken to stop deduction from your monthly salary with effect from July 1988”

In reaction to the originating summons the 1st – 4th defendants brought a motion on notice pursuant to Order 2 Rule 1(2) High Court (Civil Procedure) Rules 1988, Bendel State as applicable to Delta State, section 6, (6)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria;

Section 74(1) (m) of the Evidence Act asking the Lower Court to strike out the originating summons on the following grounds:

“1. The Originating Summons is not properly before the court.

2. This Honourable Court has no jurisdiction to entertain this suit which raises a Trade Union Dispute vis-a-vis Trade Dispute Act 1990, Trade Dispute (Amendment) Act No.47 1992 and Trade Unions (Amendment) Decree NO.1 1999.
3. The 1st plaintiff has no locus standi to bring this action.” The motion was dated, and filed on, 10/6/02 and supported by a four paragraph affidavit sworn to by Dr. C.Y.O. Adei, counsel for the 1st – 4th defendants.

The 2nd plaintiff swore, with the consent and authority of the other plaintiffs, to a 9-paragraph counter-affidavit opposing the motion.

In a rather length ruling on the motion, an interlocutory matter, the court below, dismissing the application, held that “The end result is that this application is grossly misconceived and unmeritorious (sic). The application is accordingly hereby dismissed.” In addition, the lower court granted leave to “the plaintiffs/respondent to amend the name of the 1st plaintiff in the manner applied for by counsel on their behalf and the plaintiffs are given 14 days to amend and file their originating summons reflecting the amendment and serve same on all the defendants… ” The 1st – 4th defendants were dissatisfied with the said ruling and said so by appealing to the court on two grounds here under reproduced:

“1. The learned trial judge erred in law, when he held that he had jurisdiction to try the case and dismissed the objection challenging his jurisdiction to entertain the case.

2. The learned trial judge erred in law, when he held that the plaintiffs have resigned their membership of the 1st defendant and therefore being outsiders to the 1st defendant, there is no intra union dispute involved.”

In compliance with the rules of the court the parties herein, through their counsel, filed and exchanged briefs of argument, with the appellants filing a reply brief.

From the two grounds of appeal the appellants distilled the following two grounds of appeal for the court to resolve:

“(i) Whether the learned trial Judge was right to assume jurisdiction to try this case being an inter or intra union dispute notwithstanding the exclusionary provision of section 1A Trade Disputes Act, Cap 432, Laws of the Federation of Nigeria (LFN) 1990 as amended by section 1A Trade Disputes (Amendment) Act No.47 of 1992 and

(ii) Was the learned trial judge right when he held at the interlocutory stage that the plaintiffs have withdrawn their membership from the Nigerian Union of Teachers, when the issue of withdrawal is the Intra union dispute arising in the substantive action.”

The 1st-4th respondents also formulated two issues for determination.

These are hereunder reproduced:

“1. Whether the lower court has the right to assume jurisdiction to handle the claim of the 1st to 4th respondents as filed in the lower Court.

2. Whether the lower court by assuming only jurisdiction to try the Case had decided the matter on the merit by making use of the documents filed by the 1st to 4th respondents at the cower court.”

Also, the following two issues were presented for determination by the 5th and 6th Respondents.

“1. Whether the 1st – 4th respondent’s claim at the lower court raised the issue of Trade Union Dispute and if the answer to the above is in the affirmative, whether the lower court was right to assume jurisdiction to determine the said claim.

2. Whether it is right in law for a court to deal with the merits of the Substantive claim at the stage of an interlocutory application”

At the hearing of the appeal-learned counsel for the appellants Ifeanyi Egwuasi Esq: adopted, and relived on, the appellants’ brief dated 22/5/03 and filed on 23/5/03 and the reply brief dated, and filed on, 21/5/04. He referred to a list of additional authorities submitted by the 1st to 4th respondents and said the same does-not determine the issue before the court and urged us to allow the appeal. Learned Counsel for the 1st to 4th respondents B.O. Obioko Esq. adopted, and relied on, the respondent’s brief dated 2/1/04 and the list of additional authorities he filed on 17/5/05. He urged the court to dismiss the appeal. Orharhoro Esq. learned Counsel for the 5th & 6th respondents adopted, and relied on the brief dated 18/2/03 and filed on 19/12/03, Learned Counsel parted ways with the 1st – 4th respondents and urged us to allow the appeal.

In issue 1 in the appellants’ brief learned Counsel for the appellants referred to the finding of the learned trial Judge that the Trade Disputes (Amendment) Decree, 1992 completely excludes the jurisdiction of all courts, including the High Courts from determination of trade disputes including inter or intra union disputes. He contrasted the above with the subsequent finding that the High Court has Jurisdiction to entertain this suit. Learned Counsel submitted that it was erroneous for the learned trial Judge to hold that the provisions of Trade Disputes Act or Trade Disputes (Amendment) Decree, 1992, purporting to court the jurisdiction of the High Court of a state is inconsistent with the provisions of the 1999 Constitution and to that extent null and void. He contended that by section 1A Trade Disputes Act, Cap 432 1999 as amended by section 1A Trade Disputes (Amendment) Act No.47 of 1992, the High Court has no power to entertain any action based on trade disputes or inter or intra union disputes or make any orders therein. He referred us to S.19 (1) and 20 (1) – (4) of Trade Disputes Act as amended by Trade Disputes (Amendment) Act 1992 for the establishment of the National Industrial Court with exclusive jurisdiction to determine all matters relating to trade dispute and inter or intra Union disputes. Counsel submitted that contrary to the ruling of the learned trial Judge the Trade disputes Act as amended is in no way inconsistent with the provisions of the constitution of Nigeria, 1999.

Counsel referred to S.272 of the Constitution limiting the jurisdiction of a High Court of State by S. 251 and other provisions of the Constitution. He referred also to the establishment of the National Industrial Court by S.6 (5) (J) of the Constitution and S.316 (1) of the Constitution, preserving the power vested in the National Industrial Court prior to the promulgation of the 1999 Constitution. Counsel argued that S.272 of the Constitution is subject to sections 6 (5) (1) and 316 of the said constitution.

Based on the above provisions and Ajakaiye v. Idehan (1994) 8 NWLR (Pt.364) 504 at 525-526 and Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1 at 20. Counsel contended that the High Court lacks jurisdiction to entertain a matter within the exclusive jurisdiction of the National Industrial Court, since the claim raises an intra Union dispute. On the meaning of intra union dispute he referred to Daniel v. Fadugba (1998) 13 NWLR (Pt.582) 482 at 496 and NURTW v. Ogbodo (1998) 2 NWLR (Pt.537) 189 at 199 for its definition as an argument or dispute within a union and submitted that the High Court has no jurisdiction over such dispute. He relied on Udoh v. O.H.M.B (1993) 7 NWLR (Pt.304) 139 at 148-149; Madu v. N.U.P (2001) 16 NWLR (Pt.739) 346 at 361-362; NURTW v. RTEAN (2001) 14 NWLR (Pt.733) 313 at 326. He urged us to resolve the issue in favour of the appellants.

In issue 2, learned Counsel referred to a finding of the learned trial Judge to the effect that “the plaintiffs have resigned their membership of the 1st appellant, NUT and as such outsiders and that this suit is therefore between an outsider and a Trade Union and impugned the finding on the ground that the issue of resignation of the Respondents from the 1st appellant was the substantive matter before the trial Court. He argued that it was erroneous for the trial Court to dispose of the substantive issue in the case at the stage of interlocutory ruling. He relied on Elufioye Vs. Halilu (1993) 6 NWLR (Pt.301) 570 at 596 for the Supreme Court’s warning that trial Judges in interlocutory rulings desist from making any findings “which may prejudice the substantive case … ” Counsel referred also to Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt.26) 39 at 45; Nigeria National Supply Company Ltd vs. Sabana (1988) 2 NWLR (Pt.74) 23 at 39-40; Bepco Ltd v. Nasco Mgt Services Ltd (1993) 7 NWLR (Pt.305) 369 at 381; Brown v. Brown (1994) 7 NWLR (pt.355) 217 at 231 & 234; A-G, Edo State v. Oribhabor (2003) FWLR (Pt147) 1078 AT 1086. He argued that the trial court decided the substantive matter in the originating summons before the appellants could be heard on same and relied on Ndigwe Vs. Ibekendu (1998) 7 NWLR (Pt.558) 486 at 501; Hart Vs. TSKJ (Nig) Ltd (1998) 12 NWLR (Pt.578) 372 at 392 Societe Generale Bank (Nig) Ltd Vs. Integrated Farm Industry Ltd (2001) 1NWLR (Pt.640) 319 at 326. Learned Counsel urged us to resolve this issue in favour of the appellants.

In summary learned counsel contended the trial court has no jurisdiction to entertain the matter and that it was erroneous for the trial court to determine the main issue in the case at the stage of interlocutory ruling. He urged us to allow the appeal, set aside the decision of the trial court and strike out the case.

In the brief filed on behalf of the 1st – 4th respondent, learned Counsel, in respect of issue 1, referred to S. 1(1) of the 1999 Constitution for the supremacy of the Constitution and S.1 (3) on the effect of any other law being inconsistent with the provisions of the Constitution. He cited the following cases: Adisa v. Oyinwola (2000) 9 NWLR (Pt.674) 116, A-G. Abia State Vs. A-G Federation (2000) 6 NWLR (Pt.763) 264 at 298 Adediran and Anor. Vs. Interland Transport Ltd (1991) 9 NWLR (Pt.214) 155 at 179 Kalu Vs. Kalu (1992) 5 NWLR (Pt. 240) 130 at 188. Learned Counsel referred to pages 1-2, and 23-24 of the records of appeal and submitted that the claim before the lower court did not involve trade dispute or inter or intra union dispute but the fundamental rights of the plaintiffs as guaranteed by section 40 and 46(1) of the 1999 Constitution. He said it is the claim of the plaintiff and the applicable law in force when the cause of action arose that determine the jurisdiction of the court to entertain a suit. He relied on Adeyemi Vs. Oeyori (1976) 9 – 10 SC 31; Okulate Vs. Awosanga (2002) 2 NWLR (Pt.646) 530.

He cited A.G. Oyo State Vs. NLC (2003) 8 NWLR (Pt.821) 1 at 8 and submitted that for a dispute to be declared a trade dispute within the meaning of section 47 of the Trade Dispute Act the following ingredients must be present:

(a) there must be a dispute;

(b) the dispute must involve a trade;

(c) the dispute must be between:

(i) employers and workers;

(ii) workers and workers;

(d) the dispute must be connected with;

(i) the employment or non-employment;

(ii) the terms of employment;

(iii) Physical condition of work of any person.

Learned Counsel contended that the above ingredients do not exist in the case of the 1st – 4th Respondents and that the exclusive jurisdiction of the State High Court to make declarations and issue injunctive orders is not within the provisions of the Trade Dispute Act. He argued that even if the claim involved inter or intra Union dispute there is nothing in the Constitution to forbid the High Court assuming jurisdiction to entertain the claim. He said the jurisdiction of the High Court of a state is limited only by S.251 of the 1999 Constitution and that the Trade Dispute Act 1990 as amended by section 1A of the Trade Dispute (Amendment) Act No. 47 of 1997, does not form part of the 1999 Constitutions and except by direct and clear provision to that effect the constitution is not subject to any other act or enactment. He relied on Adisa v. Oyinwola (2000) 7 LRCN 2130 at 2194.

Relying on the dictum of Adekeye, JCA in A-G Oyo State v. NLC (supra) he contended that the cases relied in by the appellants were decided prior to 1999 Constitution “when the Decree was force” and do not apply to the facts and circumstances of this case.

In issue 2 learned Counsel expressed the view that issue 1 is the only live issue in the appeal.

However, he argued that the Court below did not make a decision on the merit of the case but merely exercised its right to make use of documents in the case file. He submitted that in an interlocutory application, the Court is obliged to hear aspect of the substantive case to enable it make appropriate order. He relied on the following cases:

Globe Fishing Industrial Ltd v. Coker (1990) 7 NWLR (Pt.162) 265 at 269-270; Agbaisi v. Ebikorele (199704 (sic) NWLR (Pt.302) 630 at 633; Tangale Traditional Council vs. Fawu (2001) 17 NWLR (Pt.742) 298 at 303 and Wellington Vs. Reed Trustees Ijebu-Ode (2000) 3 NWLR (Pt.647) 130.

In conclusion, learned Counsel described the appeal as frivolous and urged us to dismiss same especially in view of the Supreme Court’s judgment in Adisa’s case supra and the decision in A-G of Oyo State v. NLC (supra).

In issue 1 in his brief, learned Counsel for the 5th and 6th Respondents dealt with the meaning of “intra” union dispute. He said “intra” means within” while Dispute means “to make a subject of argument, to contend for, to oppose by argument, to call in question, to argue, to debate” Counsel argued that “intra Union dispute” is an argument or dispute within a union and by S.24 of the Trade Dispute Act Cap 432, Laws of the Federation of Nigeria 1990 as amended “intra Union disputes” are disputes arising from the organization and running of a Trade Union. He relied on Muyiwa Daniel & 4 Ors Vs. Mrs. Olufunke Fadugba & Anor (1998) 13 NWLR (Pt.582) 482, 494 FG 496 BC.

Learned Counsel referred to the originating summons and paragraphs 10, 11, 12, 13, 14 and 15 of the supporting affidavit and contended that there is an intra union dispute between the 1st – 4th Respondents and the 1st to the 4th Appellants.

Counsel referred to S. 2 of the Trade Disputes (Amendment) Decree No. 147 of 1992, and argued that the commencement of the action in the High Court is a contravention of the said section of the Decree which attracts a fine of N10,000.00 or a prison term of one year or both fine and prison term. He relied on Daniel & 4 Ors v. Fadugba & Anor (supra) Among other things, learned Counsel said that S. 272(1) of the 1999 Constitution, provides that the “unlimited jurisdiction of the High Court is subject to the provisions of S. 251 and other provisions of the 1999 constitution”

He referred to section 6(5) (J) and 316(1) of the Constitution as some other provisions of the Constitution which prevail over S. 272. He referred to the exclusive jurisdiction in Trade Union Dispute and or inter or intra union dispute vested in the National industrial Court and argued that the High Court has no power to usurp the function of the National Industrial Court. He cited Sunday Eguamwense v. James I. Amaghizemwen (1999) 9 NWLR (Pt.315) 1 at 201; F-C. Udoh & 2 Ors v. Orthopaedic Hospitals Management Board & Anor (1993) 7 NWLR (Pt.304) 139 at 148 B-C 148h -149A-C; NURTW v. Nweke Ogbodo & 3 Ors (1998) 2 NWLR (Pt.537) 189 at 200 A-B; NURTW v. R.T.E.A.N. (2001) 14 NWLR (Pt.733) 313 at 326 E-H, and B-C; Madu v. NUP (2001) 16 NWLR (Pt.739) 346 at 361 – 362 D-H and C-D. Counsel contended that the learned trial Judge erred in law to have assumed jurisdiction to entertain the case and urged us to set aside the ruling of the lower Court delivered on 30/9/2002, allow the appeal and strike out the claim at the lower Court.

In issue 2, learned Counsel submitted that it was wrong for the learned trial Judge to deal with the merits of the substantive claim in the interlocutory application.

He referred to the claim in the originating summons and the application of the 1st – 4th Respondent, challenging the jurisdiction of the lower Court and argued that the Court below, in its ruling, had already reached a conclusion that:

“(a) The 1st – 4th Respondents have resigned their memberships of the 1st Appellant.

(2) that the 1st – 4th Respondents herein being outsiders to the 1st Appellant herein, there was now intra Union dispute involved”

Counsel submitted that the issue whether the 1st – 4th Respondents are still members of the 1st Appellant or have resigned or withdrew their membership of the 1st Appellant is a live issue to be decided in the substantive matter.

He argued that the lower Court should have kept an open mind and not dabble into issues arising in the substantive action at an interlocutory stage and relied on Ojukwu v. Gov. Lagos State (supra) N.N.S.C. V. Sabana (19988) 1 NSCC 593 at 549-549 (sic); Oyelade v. Araoye (1968) NMLR 44 at 47. Counsel submitted that the findings of the learned trial Judge at the stage of interlocutory application have compromised the substantive suit. He urged the court to allow the appeal, set aside the ruling of the trial court dated 30/9/2002 and strike out the case for the following reasons:

1. The learned trial Judge erred in law, when he held that the claim did not raise the issue of Trade Union Dispute and/or inter or intra Union Dispute.
2. The learned trial Judge erred in law, to have assumed jurisdiction to entertain the claim.
3. the ruling of the Court on 30/9/02 dealt with the merits of the substantive claim at the stage of interlocutory application.

In his reply brief learned Counsel for the Appellants contended that the principle issue in the case is trade Union notwithstanding the ancillary reliefs.

He submitted that the Court has no jurisdiction to entertain the ancillary reliefs as the main relief is outside its jurisdiction.

He relied on Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517 at 576 para E-C Seatrucks v. Anigboro (2001) 2 NWLR (Pt.696) 159 at 175 F-H; Egbonu Vs. Bornu Racho/Television Corporation (1997) 12 NWLR (Pt.531) 29 at 43 para F-G; Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 534 at 582 – 583 paras F-C. He argued that the right to peaceful association granted by S.40 of the 1999 Constitution is not absolute, but subject to S.45 of the same Constitution. He cited Osakare v. Registered of Trading Unions (1985) 1 NWLR (Pt.4) 755 at 763 paras E-G a decision of the Supreme Court applied by the Court of Appeal in Madu v. NUP (supra).

Counsel argued that even if it can be said that the case before lower Court was a fundamental right case it was not initiated in accordance with the applicable rules.

He relied on Udene Vs. Ugwu (1997) 3 NWLR (Pt. 491) 57 at 70-71 para F-B; Dangote Vs. C.S.C. Plateau (2001) FWLR (Pt.50) 1639 at 1663 paragraphs A-E; Madukolu v. Nkemdilim (1962) 1 ANLR (sic). Counsel described as grossly erroneous and misconceived the 1st – 4th Respondents’ argument that the jurisdiction of the High Court is limited by the provision of S. 251 of the 1999 Constitution only. He cited S.272 (1) of the 1999 Constitution and submitted that the other provisions of the constitution, which limit the jurisdiction of the State High Court, include S.316 of the Constitution.

He said that Adisa’s case (supra) relied on by the 1st – 4th Respondents is in applicable as it was decided on the 1979 Constitution which did not contain the provision in S.272 (1) of the 1999 Constitution.

In the case of A-G Oyo State v. NLC (supra) relied on by the 1st to 4th Respondents’ Counsel argued that the decision was given per incuriam as the Court did not consider S.316 of the Constitution in the said judgment.

He argued that this Court is bound by the various decisions of the Supreme

Court which have upheld the exclusive jurisdiction of the National Industrial Court in any inter or intra Union dispute. Learned Counsel urged us to dismiss the argument of the 1st to 4th respondents that the lower Court was right to assume jurisdiction to entertain this case and that the lower Court did not at the interlocutory stage pronounce on the merit of the case.

Learned Counsel for the 1st – 4th Respondents submitted that the suit involved neither a trade dispute nor intra Union dispute. According to learned Counsel, the issue for determination before the lower Court is “the fundamental right of the Plaintiffs as guaranteed by section 40 and 46(1) of the 1999 Constitution ….”

The appellant replied that even if the case was a fundamental right case (which was not conceded) the suit was not commenced by due process.

The position of the appellants on this point is unassailable. Ord. 1 Rule 2(2) of the Fundamental Right (Enforcement) Rules provide that “No application for an order enforcing or securing the enforcement within that state of any such rights shall not be made unless leave therefore has been granted in accordance with this rule”

Thus while can applicant can approach the High Court in a State where the infringement of his rights occurs or is likely to occur for redress (see Ord. 1 Rule 2(1) (supra) he has to obtained leave of the appropriate High Court before he can apply to enforce his rights.

In this case, the Respondents approached the Court by way of originating summons, contrary to he provision of Ord. 1 rule 2(2) of the Rules (supra).

In Director of SSS & Anor Vs. Agbakola (1999) 67 LRCN 418 at 456 it was held that the special procedure stipulated for the enforcement of Fundamental Human Rights is different from the normal proceeding instituted by Writ of Summons. Also in Udene v. Ugwu (1997) 3 NWLR (Pt.491) 57 at 20 the Court held that a combined reading of section 42(1) of the constitution of the Federal Republic of Nigeria 1979 and the Fundamental Right (Enforcement Procedure) rules 1979 clearly shows that the only procedure now available to a party who brings an action for the enforcement of fundamental right…is by the 1979 Rules made by the Chief Justice of Nigeria.

See also, Dangote Vs. CSC Plateau State & 2 Ors (2001) 86 LRCN 1204 at 1229; Sande v. Abdullahi (1989) 4 NWLR (pt.116) 387, where it was held that the procedure for enforcement of Fundamental Right must be adhered to strictly. I hold that the action of the Respondents cannot be considered as one for enforcing fundamental right, as it was not initiated by the procedure stipulated in the fundamental Rights (Enforcement Procedure) Rules, 1979.

The alleged infraction of the Respondents’ fundamental rights may also constitute a tortuous act. The victim has a right of election in respect of the procedure to be adopted for obtaining redress. He may initiate an ordinary civil claim under the relevant rules of Court (as the Respondents did in this case) or he may invoke the Constitutional procedure under the Fundamental Rights (Enforcement procedure) Rules.

See Onwo v. Oko & Ors (1976) 6 NWLR (Pt.456) 584 at 603-604. Having made a choice, the Respondents are restricted to the procedure they chose to bring their action. They cannot have the same matter considered both as ordinary civil claim and as enforcement of their fundamental right.

Though the 5th and 6th Respondents would ordinarily be expected to toy the same line with the rest of the Respondents in urging us to dismiss the appeal they are not bound to do so. Ord. 6 r. 4(2) of the Court of Appeal rules provides that “the Respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismiss… ”

(Italics mine) The 5th and 6th Respondents filed a brief, which did not contain any reason, or prayer, for the appeal to be dismissed, but which conceded all the reasons given by the appellant for the appeal to be allowed.

In my view if all the 5th and 6th Respondents have to offer in the appeal is to concede the issues raised by the appellant they can hardly be expected to give reasons why the appeal ought to be dismissed.

Having conceded the two issues raised by the appellants the 5th and 6th Respondents were right to argue that the appeal be allowed.

I have disposed of the peripheral issues and I will now take the main issues in the appeal. The issues formulated by the appellants, the 1st – 4th Respondents and the 5th to the 6th Respondents are substantially the same. I will therefore, adopt the appellants’ issues in determining the appeal. I think it more expedient to deal with issue 2 first as issue one depends on it. Issue 2 is whether or not the trial Court was right to hold that the Plaintiffs have within-drawn their membership of the Nigerian Union of Teachers. While the appellants argued that the withdrawal vel non of membership of N.U.T by the Plaintiffs was the main issue before the lower Court, the Respondents submitted that the Court was right to make use of documents in the case file (obviously referring to copies of letters of resignation and withdrawal from NUT by the Plaintiffs exhibited to the affidavit in support of the originating summons).

It was the contention of the 1st – 4th Respondent that in an interlocutory application the Court is obliged to hear aspect of the substantive case to enable it make the appropriate order. On this issue, the 5th and 6th Respondents aligned themselves with the appellants.

In my view, the main issue before the Court below, on the resolution of which would depend the granting or refusal of the declarations and junctions sought by the 1st – 4th Respondents is the question “whether the 2nd – 4th Plaintiffs and all members of the 1st Plaintiff have no right to resign as members of the 1st defendant…”

One of the grounds on which the 1st to 4th Appellants asked the lower Court to strike out the suit is that the lower Court lacks jurisdiction as the suit raises a Trade Union Dispute and/or Inter or Intra Union Dispute.

Intra Union dispute is none other than a dispute between members of a trade union inter se. Questions of Trade Union Dispute or Inter Union Dispute are not involved in this case. On the facts before the Court below intra Union dispute between the 2nd – 4th Respondent will arise only if the 2nd to 4th Respondent are members of the 1st appellant (NUT) at the material time (i.e at the time of commencement of the originating summons). The originating summons was supported by an affidavit of 20 paragraphs. Paragraphs 11, 12, 14, 15 and 16, which I consider to be relevant to the question whether or not the 2nd – 4th Respondents were still, members of the N.U.T at the time of commencement of the originating summons are hereunder reproduced:

“11. That when myself, 3rd and 4th plaintiffs and all members of 1st Plaintiff, Delta State chapter discovered that we were ignorantly associating with the 1st – 4th defendants were not protecting our interests as secondary school tutors in the employment of Delta State Government all of us withdrew our membership of the 1st defendant and duly notified the defendants.

Attached herein and marked as Exhibits B, B1, C, C1, D, D1, E, E1, F, F1 and G respectively, are some copies of the said withdrawal letters of membership of 1st defendant by myself 3rd and 4th Plaintiffs and some other members of the 1st Plaintiff.

12.That myself, 3rd and 4th Plaintiffs and all members of 1st Plaintiff had requested the defendants to stop deducting check-off dues from our salaries and earnings as tutors with Delta State Government, since we are no longer members of 1st defendant but defendants have refused insisting he must be such members of the 1st defendant.

13.That notwithstanding the fact that myself, 3rd and 4th Plaintiffs and all members of 1st Plaintiff had resigned our membership of the 1st defendant, the 5th and 6th defendants are still effecting the deductions. From our salaries and earnings and paying same over to the 1st – 4th defendants dispute all protest.

15. That when myself, 3rd and 4th plaintiffs and all members of 1st Plaintiff resigned our membership of 1st defendant, the defendants started harassing and embarrassing us with police and men of State Security Services (S.S.S) maintaining that we have no right to resign as members of 1st defendant. The defendants have made several press statements, newspaper publication and letters threatening to deal ruthlessly with us for resigning from 1st defendant.

19.That at present myself, 3rd and 4th Plaintiffs and all members of the 1st Plaintiff, whom we represent are no longer members of the 1st defendant as we have long resigned our membership.”

As if to emphasize that a precedent has been set the plaintiffs averred in paragraph 18 as follows “that I know as a fact that sometime in 1988, the Teaching Service Board of Defunct Bendel state approved the stoppage of the deductions of check-off dues from the salaries/earning of eleven tutors in Amadokhian Secondary School, Uromi Vide letter with Ref. No. A.159/Vol.V/26 of 29th June, 1988, following withdrawal of the eleven teaches from U.N.T.A photocopy of the said letter is herein attached and marked Exhibit 11”

Further and perhaps more relevant to the issue at stake the Plaintiffs in the Court below as respondent in the motion to strike out the originating summons filed a 9 paragraph Counter-affidavit in opposition to the motion.

They averred as follows:

“3. That what the Defendant/Applicants wants (sic) to do is to force us against our wish to remain in N.U.T.

4. that we have written letters resigning our membership of N.U.T but the Defendant/Applicant do not want to accept our resignation an insist that they must be deducting our check-off Dues from our salaries…

6: that I know and behave that the 1st plaintiff is an association and not a trade union as being contemplated by the Defendants’ Counsel.

9. Apart from that, we are not card carrying members of NUT and we are not registered members of NUT as we have never applied for membership.” This is the Counter-affidavit in response to the 4-paragraph affidavit in support of the motion to strike out the originating summons. I hereunder reproduce the affidavit in full.

“AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION

I, DR. C.Y.O. ADEI, Legal Practitioner and notary Public, residing at No. 39, Agidiehe Street, Ogwashi-Uku, Delta State, NIGERIA, make oath and state as follows:

1. I am Counsel for the 1st-4th Defendants in this suit.
2. I have studied the Originating summons cum affidavit in support of the originating summon and, have out by my knowledge as Counsel, come to an inevitable conclusion that it is absolutely necessary to file this application to strike out the suit.
3. My Clients brought this originating summons for a chose study, which I did.
4. I am C.Y.O ADEI, do hereby solemnly swear by Almighty God that this is my name and handwriting and that the facts deposed by me in this affidavit are true, the whole truth and nothing but the truth.”

In the first place, there is nothing to show that the deponent swore to the affidavit for or on behalf of the defendants/applicants or with their consent and permission, he not being a party to the suit directly or by representation.

Secondly, he, the deponent studied the originating summons and the supporting affidavit, and yet he did not refer to, not to talk of controverting, any of the averments in the supporting affidavit.

Above all the averments in the Counter-affidavit that the Plaintiffs/Respondent in the motion were no longer members of the NUT and that the 1st Plaintiff is an association and not a trade union are averments of facts that should have attracted the attention of the learned Dr. C.Y.O. Adei as Counsel representing the defendants/ applicants. In the circumstances, the 1st – 4th Appellants who had the opportunity to contest the averments in the affidavit in support of the originating summons in their affidavit in support of the motion to strike out the originating summons, but failed to do so are deemed to have admitted the said averments, as there is nothing to show that any of the averments is inherently incredible. See Azeeze v. State (1986) 2 NWLR (Pt.23) 541; Agbaje v. Ibru S.F. Ltd (1972) 5 SC 50; National Bank Vs. Afe Brothers (1977) 6 SC 97; Sofumonu v. Ocean Steam Ship Nig Ltd (1987) 4 NWLR (Pt.66) 691.

In the case of the Counter-affidavit, the defendants/Appellants in that motion ought to have filed a further affidavit, challenging the averments in the Counter-affidavit. Again, they are deemed to have conceded the facts averred in the Counter-affidavit.

But what is more important in this case is that, the affidavit in support of the motion to strike out the originating summons is completely bereft of any fact relevant to the application and upon which the lower Court could have made a ruling in favour of the applicants (now appellants). In effect, there is no affidavit evidence in support of the application and the only evidence before the lower Court is the affidavit evidence of the Respondents. Since the copious averments that the 2nd – 4th Respondents had resigned their members of, or had withdrawn from, NUT were not challenged or controverted by the Appellants who had the opportunity to do so, the lower Court had credible evidence to hold that the 2nd – 4th Respondent had resigned from the NUT. On page 17 of the records, the lower Court held, with reference to Dr. C.Y.O Adei’s affidavit “The result is that no facts as relates the relationship between the plaintiffs and defendants in this suit are stated therein. I have to accept the contents of the affidavit of the Plaintiffs at this stage as true and correct and having resigned their membership of the 1st defendant it follows that they are no longer members of the 1st defendant Trade Union. It is agreed the 1st Plaintiff is not a Trade Union …. From the affidavit before me which has not been contradicted this case is between an outsider or outsiders versus a Trade Union” I agree with the above finding of the lower Court. The lower Court had credible affidavit evidence that the 2nd – 4th Respondents were no longer members of the N.U.T.

As I stated earlier in this judgment, the issue whether the 2nd – 4th Respondents were or were not members of the 1st appellant is the main issue the Court had to resolve in the originating summons. Be that as it may the contention in the motion that the originating summons involved an intra union dispute is dependent on whether or not the 2nd – 4th Respondents were members of the 1st Appellant. If they were such members, the matter would involve intra Union dispute and the lower Court would lack jurisdiction to entertain same. If the contrary is the case than the lower Court would have jurisdiction to determine the case.

The lower Court could not have determined the threshold issue of jurisdiction without determine the issue whether the suit involved intra union dispute and this later issue cannot be resolved without a finding as to whether or not, the 2nd – 4th Respondents were members of U.N.T. It is the main issue in the case, but it is also the basis of the intra union dispute raised by the appellants in their motion challenging the jurisdiction of the Court to entertain the case.

Respondent had the opportunity to offer affidavit evidence in support of the issues they raised or to controvert facts deposed to by the Respondent, but they failed to do so and the Court relied on the affidavit evidence of the 1st – 4th Respondents to determine that the 2nd – 4th Respondents had resigned their membership of N.U.T and based on that finding the issue of intra union dispute on which the application was based did not arise.

As decided in Ojukwu vs. Gov. Lagos (supra); Brown v. Brown (supra) Bepco Ltd Vs. Nasco Mgt Services Ltd (supra) and Ndigwe v. Ibekendu (1998) 7 NWLR (Pt.558) 486) at 501 and other cases relied on by the appellants and the 5th – 6th Respondents the Court should desist from making any findings or doing anything which may prejudice or compromise the substantive suit at the stage of interlocutory applications.

However, it is my view that where the defendant raises the issue of jurisdiction on a ground intricately tied to the main issue to the extent that one cannot be determined without the other than the Court can resolve the issue so long as the parties were given opportunity to present their affidavit evidence and the Court had credible affidavit evidence to resolve the issue. This is what the lower Court did and it is justified on the facts of the case. The lower Court could not have rightly proceeded with the main case without a determination of the issue of jurisdiction raised by the appellants. See A-G Anambra State v. A-G Federation (1993) 6 NWLR page 614; Military Adm. Benue State v. Abagilo (2001) FWLR 604 and 605.

I said earlier in the judgment, that the 1st issue in the appellants’ brief is dependent on the second issue. Since in the resolution of the 2nd issue I have upheld the lower Courts finding that the 2nd – 4th Respondents had resigned from the N.U.T it follows that the suit is not an inter or intra Union dispute within the meaning assigned to the terms in the Trade Disputes Act Cap 432 Laws of the Federation, 1990, as amended by Trade Dispute (Amendment) Act No. 47 of 1992. The lower Court was therefore right to have assumed jurisdiction to try the case. In any case, the affidavit in support of the motion contained no fact from which the Court could have ruled that it lacked jurisdiction over the matter. On the other hand, there are facts presented by 1st – 4th Respondents from which the Court determined it had jurisdiction. This issue is also resolved in favour of the 1st-4th Respondents.

I have considered the issues raised by Counsel for the parties the arguments advanced in respect of same and the authorities relied on by counsel. It is my humble view, that the appeal lacks merit and it is hereby dismissed.

Appellants and 5th & 6th Respondent are to pay costs fixed at N3,000.00 to the 1st – 4th Respondents.

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Other Citations: (2005)LCN/1807(CA)