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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA DATE: 14 OCTOBER 2021 SUIT NO. NICN/ABJ/67/2021 BETWEEN Comrade Aliu Salihu - Claimant AND 1. Comrade Benjamin Anthony 2. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees - Defendants REPRESENTATION Kennedy Khanoba, for the claimant. Adeojo Abah, with U. Onoja, for the defendants. JUDGMENT INTRODUCTION 1. The claimant took out this action on 3 March 2021 vide an originating summons. The originating summons is supported by an affidavit with an exhibit and a written address. The claimant is praying this Court to determine the following questions: (1) Whether in the light of the judgment of this Honourable Court in Senior Staff Association of Statutory Corporations and Government Owned Companies v. Federal Housing Authority, Suit No: NICN/ABJ/103|2019 and in Senior Staff Association of Statutory Corporations and Government Owned Companies v. (SSASCGOC) & anor v. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Services Employees (AUPCTRE), Suit No: NICN/ABJ/l25/20l9 to the effect that the former (SSASCGOC) is the proper union to register and unionize senior staff of the Federal Housing Authority, can the 1st defendant be rightly held to be a member of the 2nd defendant union? (2) If the answer to question 1 is in the negative, whether the 1st defendant can rightly hold elective office in the 2nd defendant union. (3) If the answer to question 2 above is in the negative, whether the 1st defendant can legally continue to hold elective office in the 2nd defendant union. 2. If the answer to question 3 above is in the negative, the claimant prays the Court for the following reliefs against the defendants: (1) A declaration that the office of the President of Amalgamated Union of Public Corporations, Civil Service, Technical and Recreational Service Employees (AUPCTRE) is vacant since the 1st defendant cannot properly (sic) regarded as a member of the union is thus not qualified to contest or occupy elective position in the union. (2) A declaration that the person with the second higher votes in the election that produced the 1st defendant as President of the union be immediately returned and sworn in as the President of the 2nd defendant union. (3) An order of this Honourable Court restraining the 1st defendant from further parading himself either as a member or the President of the 2nd defendant union. (4) Any other orders which this Honourable Court may deem fit to make. 3. In reaction, the defendants filed two processes: the counter-affidavit to the originating summons; and a preliminary objection to it. The preliminary objection prays that the originating summons be struck out or dismissed for want of jurisdiction. 4. In reaction to the defendant’s preliminary objection, the claimant filed on 2 July 2021 a counter-affidavit and a written address urging the Court to dismiss or strike out the preliminary objection. The defendant did not file any reply on points of law regarding the claimant’s reaction. 5. In response to the defendant’s counter-affidavit to the originating summons, the claimant filed on 23 July 2021 a further affidavit and a reply on points of law. 6. I shall take the defendant’s preliminary objection first before looking into the merit of the originating summons. THE DEFENDANT’S PRELIMINARY OBJECTION The Submissions of the Defendant as to the Preliminary Objection 7. The defendant’s preliminary objection is brought pursuant to section 4(1) of the Trade Disputes Act (TDA) and under the inherent jurisdiction of the Court. It questions the competence/jurisdiction of this Court to hear and determine this suit as presently constituted and prays the Court for an order striking out/dismissing this suit for lack of jurisdiction. 8. The grounds of the objection are: (1) The cause of action in this suit relates to intra union dispute within the contemplation of Rule 27, constitution of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (as amended) and section 4(1) of the Trade Disputes Act. (2) The claimant/respondent filed this suit before this Honourable Court without first exhausting the dispute resolution mechanism enthroned in Rule 27, constitution of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) as enjoined under section 4(1) of the Trade Disputes Act. (3) The claimant/respondent’s having not compiled with Rule 27, constitution of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) the suit is incompetent and has denied this Honourable Court the jurisdiction to hear and determine same as presently constituted. 9. The defendant submitted one issue for determination, namely: whether in the circumstance of this case, this suit is not incompetent and this Honourable Court lacks jurisdiction to hear and determine the suit as presently constituted. 10. To the defendant, this issue touches on the competence and jurisdiction of this Court to hear and determine this suit as presently constituted. That jurisdiction is a threshold issue and fundamental to the powers of the Court to hear and determine a suit before it. It is the lifeline of all suits and a hearing without jurisdiction is a nullity, citing Petrojessica Enterprises Ltd. & anor v. Leventis Technical company Ltd [1992] LPELR-2915(SC). 11. The defendant went on that a court can only assume and exercise jurisdiction when it is competent (in terms of constitution of the members, the subject matter is within jurisdiction, and the case is initiated through due process) to hear and determine the suit before it, citing Tukur v. The Government of Taraba State & ors [1997] LPELR-3219(SC). 12. That the claimant/respondent is a member of the 2nd defendant and was the immediate past National Treasurer of the 2nd defendant. That the claimant along with all other members of AUPCTRE including the 1st defendant agreed and subscribed to the provisions of the constitution of AUPCTRE, which embodied the terms of their agreement. Members, therefore, derive rights to challenge perceived infraction in the application of the constitution including occupation of the office of National President of the union. That the same constitution sets out how that right is to be exercised. 13. To the defendant, Rules 6(F)(i)(d), 8(B) and 15(1)(i) of AUPCTRE constitution provide for the office of the National President of AUPCTRE and election into the office. That the claimant in his reliefs as endorsed on the originating summons is seeking the removal from office of the 1st defendant and praying this Court to return another member of the union as the President of the union. The defendant then submitted that the issues nominated in the originating summons relates to dispute between members of AUPCTRE and therefore is an intra union dispute within the meaning and contemplation of Rule 27 of AUPCTRE’s constitution. 14. That where the dispute is intra union, the members of AUPCTRE have agreed in their constitution that they shall first resolved the dispute through the dispute resolution mechanism set out in Rule 27 of their constitution. Rule 27 of AUPCTRE’s constitution provide as follows: (a) In the event of the occurrence of intra-union dispute(s) any aggrieved member or branch shall in the first instance report the matter in writing to the General Secretary. (b) …….. (c) …….. (d) …….. (e) …….. (f) No aggrieved member or branch shall employ other processes including court litigation to resolve intra-union dispute in AUPCTRE without exhausting the laid down procedure enumerated in this Rule. 15. The defendant continued that the claimant ought to have exhausted the intra union dispute resolution mechanism in Rule 27 of AUPCTRE’s constitution before commencement of this suit as it is a condition precedent to the commencement of intra union dispute by members of AUPCTRE before this Court. 16. That section 4(1) of Trade Disputes Act recognizes agreement by members of a trade union to resolve disputes in the manner set out in Rule 27 of AUPCTRE’s constitution. Such agreement to settle disputes must be attempted before parties can resort to litigation in court. That section 4(1) of the Trade Disputes Act provides as follows: If there exist agreed means for settlement of the dispute apart from this Act, whether by virtue of the provisions of any agreement between organizations representing the interest of employers and organization of workers or any other agreement, the parties to the disputes shall first attempt to settle it by that means. 17. To the defendant, the combined effect of section 4(1) of the Trade Disputes Act and Rule 27 of AUPCTRE’s constitution is that exhausting the processes under Rule 27 of AUPCTRE’s constitution constitutes a condition precedent to activation of the jurisdiction of this Court in the instant case. That section 4(1) of Trade Disputes Act represents a statutory condition precedent to the exercise of jurisdiction over intra union disputes in AUPCTRE, citing Shugaba v. Union Bank of Nigeria Plc [1999] LPELR-3068(SC), which held that where a statute provides for the fulfillment of a condition before an action is commenced, failure on the part of the plaintiff to fulfill the condition will render the entire action and the subsequent trial a nullity, however ably it was conducted. 18. The defendant then submitted that the claimant has not satisfied the condition precedent to activate the jurisdiction of this Court over the issues nominated in the originating summons. That this suit is, therefore, incompetent and this Court lacks jurisdiction to hear and determine the suit as presently constituted. 19. In conclusion, the defendant submitted that the claimant, having not complied with the condition precedent to the exercise of jurisdiction in the circumstance of this case, this suit is premature, incompetent and ought to be struck out or dismissed in its entirety with a cost of N500,000 (Five Hundred Thousand Naira). The defendant urged the Court to uphold the objection, decline jurisdiction in this suit and strike out/dismiss the suit in the interest of justice. The Submissions of the Claimant in Opposition to the Preliminary Objection 20. The claimant also submitted one issue for determination i.e. whether in the circumstance of this suit, the 1st defendant/applicant can rightly be held to be a member of the 2nd defendant/applicant’s union. 21. To the claimant, this issue touches on the membership of the 1st defendant/applicant to the 2nd defendant/applicant union. That the 1st defendant/applicant is a senior staff of the Federal Housing Authority. That in Senior Staff Association of Statutory Corporations and Government Owned Companies v. Federal Housing Authority, Suit No: NICN/ABJ/103/2019 and in Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE), Suit No: NICN/ABJ/125/2019, the decisions of this Court were to the effect that SSASCGOC is the proper union to register and unionize senior staff of the Federal Housing Authority. That it is manifestly evident that from these decisions, the 1st defendant/applicant ought to and is a member of SSASCGOC by virtue of his position as a senior staff of Federal Housing Authority and not a member of AUPCTRE. 22. The claimant went on that this issue is not an intra union dispute, as such would have been the case if the 1st defendant/applicant was a member of AUPCTRE. But in the instant case, the 1st defendant/applicant being a senior staff of the Federal Housing Authority, cannot rightly parade himself as a member of the 2nd defendant/applicant union (AUPCTRE) since his rightful union is SSASCGOC. That it follows, therefore, that Rule 27 of the constitution of AUPCTRE does not apply in this case as this is a dispute between a member of AUPCTRE (the claimant/respondent) and a mere interloper (the 1st defendant/applicant). 23. That the 1st defendant/applicant, not being a member of the 2nd defendant/applicant union, is not bound by the provisions of the constitution of AUPCTRE and cannot benefit thereof from the provisions of the said constitution. 24. Furthermore, that section 4(1) of the Trade Disputes Act only applies to members of the same union and not between a member of a union and an interloper. 25. That it is trite that one cannot put something on nothing and expect it to stand, citing MacFoy v. United Africa Company Limited [1961] 3 All ER 1169. Therefore, the 1st defendant/applicant, not being a member of the 2nd defendant/applicant, cannot place reliance on the provisions of the constitution of the 2nd defendant/applicant in challenging the competence and jurisdiction of this Court. 26. The claimant concluded by submitting that this Court has the unfettered jurisdiction to competently hear and determine the substantive suit, urging the Court to so hold; and strike out or dismiss the preliminary objection in its entirety with a cost of N1,000,000 (One Million Naira) for being frivolous. 27. Like I pointed out earlier, the defendant did not file any reply on points of law in reaction to the claimant’s response to the preliminary objection. THE CLAIMANT’S ORIGINATING SUMMONS The Submissions of the Claimant as to the Originating Summons 28. The claimant started off with a statement as to the facts of this case. To him, the 2nd defendant, Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees (AUPCTRE), in 2018 conducted general elections in which the 1st defendant contested for the office of President of the union, along with other candidates. That the 1st defendant, a senior staff of the Federal Housing Authority (FHA), was declared the winner of the office of President of 2nd defendant thereby making him the President of the 2nd defendant union. However, the 1st defendant, being a senior staff of the Federal Housing Authority (FHA), is not a member of 2nd defendant and ought not to have taken part in the general elections. That there are many decisions from this Court holding that senior staff of the Federal Housing Authority (FHA) do not belong to the 2nd defendant, but rather to Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC). That the claimant, as a member and former National Treasurer of the 2nd defendant, being aware of these facts, has now brought the present suit to pray this Court to determine if the 1st defendant can be validly elected and act as the President of the 2nd defendant union in the circumstances. 29. The claimant then submitted one issue for determination i.e. whether the 1st defendant can be the President of the 2nd defendant union where he is not a member of the union; and answered it in the negative. That an examination of the constitution of the 2nd defendant, particularly Rules 2, 3 and Clause 4 of Appendix II, reveals that the obligations and benefits created therein are exclusively for persons who are qualified to be members of the union. That the persons who are so qualified to be members of 2nd defendant have been held on different occasions by this Court to be restricted to junior staff of Federal/State Government corporations, etc; and any attempt to do otherwise by the union will be ultra vires its jurisdiction as delineated by the Trade Unions (Amendment) Act 2005 in section 33(4) of the Act. 30. That in Staff Association of Statutory Corporations and Government Owned Companies v. Federal Housing Authority Suit No. NICN/ABJ/103/2019, this Court, differently constituted held that the SSASCGOC, who was the claimant in that case, is the proper union to organize and, unionize senior staff of the Federal Housing Authority, which incidentally was the defendant in that case. Similarly, that in Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE), this Court also reached a similar conclusion and held that senior staff of government corporations and statutory agencies could only be unionized by the Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC), and not the 2nd defendant. 31. That it then follows that the 1st defendant in this instant case cannot be held to be a member of 2nd defendant, but of SSASCGOC. In the same vein, he is also not qualified to run for elective office under the auspices of the 2nd defendant. That where this is the case, it becomes elementary that his purported victory at the 2nd defendant last general elections is a nullity and cannot be allowed to stand, as he was not qualified ab initio to participate in the elections. 32. Referring to the Latinism, nemo dat quod non habet, meaning one cannot give what one does not have, the claimant submitted that the 1st defendant is not a member of the 2nd defendant and his candidature is fundamentally defective. His emergence as President of the 2nd defendant union is, therefore, a nullity as one cannot place something on nothing and expect it to stand. The claimant then urged the Court to to step in and exercise its jurisdiction to give life to its previous decisions on the issues forming the crux of this instant case. 33. In conclusion, the claimant submitted that having answered the sole issue he raised in the negative, he is urging the Court to hold that he is entitled to the reliefs sought on the face of the originating summons. The Submissions of the Defendant in Opposition to the Originating Summons 34. The defendant in opposition to the originating summons submitted three issues for determination, namely: (1) Whether the claimant has locus standi to enforce the judgments of this Court in Suit No. NICN/103/2019 and Suit No. NICN/125/2019 against the defendants in the manner constituted in this suit. (2) Whether this suit does not constitute abuse of judicial/court process. (3) Whether having regard to the circumstance of this case, the claimant has sufficiently proved his case to be entitled to the reliefs endorsed on the originating summons in this suit. 35. On issue (1), the defendant submitted that the claimant does not have locus standi to apply to this Court in the guise constituted in this suit to enforce the judgments in Suit No. NICN/103/2019 - Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) v. Federal Housing Authority and Suit No. NICN/125/2019 - Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) against the defendants in this case. That the law is settled that before a claimant can successfully maintain an action, he must have a right standing, right interest in the subject matter of the suit or a legal capacity to institute proceedings before the court, citing Esuruoso & ors v. Ogidi [2002] LPELR-12233(CA), which inter alia held thus: In order to invoke the judicial power of the Court, the plaintiff must show that either his personal interest will immediately be or has been affected by the action complained of or that he has suffered or sustained or is in immediate danger or injury of himself which is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interests or rights which may be affected by the action. 36. To the defendant, a reading through the averments/depositions in the affidavit in support of the originating summons and the reliefs sought therein clearly shows that the claimant has not placed before this Court his personal interest that will be affected in the suit or the injury that he has suffered which is over and above other members of the 2nd defendant. 37. That the claimant is not a party in the two suits. He is not a member of Senior Staff Association of Statutory Corporations and Government owned Companies (SSASCGOC); the beneficiary of the judgment. Rather, the claimant is a member of the 2nd defendant. That the issues in the cases relates to jurisdictional scope of SSASCGOC which does not inure any right to the claimant to approach this Court for enforcement of judgment against his own union on behalf of SSASCGOC. That the claimant is clearly an interloper and a mere busy body. 38. The defendant continued that a further examination of the averments/depositions in the affidavit in support of the originating summons and the reliefs endorsed on the originating summons shows clearly that the claimant has not disclosed any justiciable interest or right to the reliefs sought in the originating summons. The claimant did not disclose any violation of his personal right or interest which gave rise to the suit. That the suit is clearly a proxy battle of the claimant on behalf of one Comrade Solomon Adelegan who is not a party to this suit. That the claimant is, however, seeking declaration that Comrade Solomon Adelegan be returned as the National President of the 2nd defendant having lost the election to the 1st defendant on 19 October 2017. This is clear in that only Comrade Solomon Adelegan and Comrade Benjamin Anthony were the only contestants for the office of the National President of the 2nd defendant in October 2017. That the person with the second highest votes is automatically Comrade Solomon Adelegan. 39. Relief 1 sought for declaration that the office of the National President of the 2nd defendant is vacant. Relief 2 is for declaration that the contestant with 2nd highest vote (Comrade Solomon Adelegan) should be returned and sworn in as the National President of the 2nd defendant. Relief 3 is to restrain the 1st defendant from carrying out the functions of the National President of the 2nd defendant and to pave way for Comrade Solomon Adelegan to become the National President of AUPCTRE. 40. That there is no relief for the benefit of the claimant who was a contestant for the office of National Treasurer but lost to Comrade Orumbo. That the facts set out in the affidavit are in furtherance of these reliefs. Accordingly, that the claimant has not disclosed any cognizable interest in the reliefs sought before this Court establishing a locus standi to initiate this suit, Thus, this Court has no right, competence or jurisdiction to entertain a suit at the instance of the claimant who lacks the required locus standi to institute the suit, citing Nigeria LNG Ltd v. Murphis Burger Ltd [2016] LPELR-41485(CA). That the claimant lacks locus standi to initiate this suit before this Court; as such, this Court lacks jurisdiction to hear and determine the suit. The defendant then urged the Court to so hold and dismiss this suit. 41. For issue (2), the defendant submitted that a careful reading through the questions for determination, the reliefs endorsed on the originating summons and the affidavit in support, it is abundantly clear that the claimant sets out in this suit to embarrass and annoy the defendants using the process of this Court as a result of bitter feelings of defeat in the 2nd defendant's national officers’ election held on 19 October 2017 at Ibadan, Oyo State. That what is most disturbing is the fact that the claimant served the 2nd defendant for 4 years as National Treasurer, but only failed re-election after his stewardship was weighed and found wanting. The members then elected another Comrade to man the treasure chest of the 2nd defendant. That it is, therefore, shocking that the claimant will still harbour animosity over election held in 2017 as set out in this suit filed in February 2017 for a 4-year tenure which will expire in a few months from now. 42. The defendant continued that the claimant endorsed 4 reliefs on the originating summons. The 1st relief is for declaration of the office of National President of AUPCTRE vacant on the submission that the 1st defendant (National President of AUPCTRE) is a senior staff and not a junior staff and can no longer remain a member of the 2nd defendant because he is a senior staff. Curiously, that the claimant in his affidavit in support of the originating summons deposed at paragraph 3 of the affidavit that he is a bonafide member of the 2nd defendant. Meanwhile the claimant is a senior staff on Grade 14 level 11. This is copiously embossed in the claimant's pay slip (Exhibit G) annexed to the counter-affidavit of Comrade Benjamin Anthony. 43. The defendant proceeded that the claimant in his relief 2 seeks declaration that the person with the 2nd highest vote be declared National President of AUPCTRE. That at the election of National officers of the 2nd defendant, the contestants for the office of National President of the 2nd defendant were Comrade Benjamin Anthony (1st defendant) and Comrade Solomon Adelegan. Comrade Benjamin won the election leaving Comrade Solomon Adelegan trailing behind him as the candidate with 2nd highest votes. That the said Comrade Solomon Adelegan is a senior staff on Grade 14 in the Civil Service of Ondo State Government. Thus, the claimant, Comrade Adelegan and Comrade Benjamin (the serving National President of AUPCTRE) are senior staff in their various offices. Meanwhile, the claimant wants this Court to declare Comrade Benjamin as not a member of AUPCTRE because he is a senior staff and declare his office vacant. In the same breathe, that the claimant wants Comrade Solomon Adelegan to be declared as National President notwithstanding that he is a senior staff like him and the 1st defendant. 44. To the defendant, Suit No. NICN/103/2019 - Senior Staff Association of Statutory Corporations and Government owned Companies (SSASCGOC) v. Federal Housing Authority has been appealed to the Court of Appeal, Abuja Division in Appeal No. CA|ABJ|CV|481/2020 - Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) v. Senior Staff Association of Statutory Corporations and Government owned Companies (SSASCGOC) & Federal Housing Authority. Suit No. NICN/125/2019 - Senior Staff Association of Statutory Corporations and Government owned Companies (SSASCGOC) & anor. v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) has also been appealed to the Court of Appeal, Abuja Division in Appeal No. CA/A|CV/14/2020 - Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) V. Senior Staff Association of Statutory Corporations and Government owned Companies (SSASCGOC) & anor, referring to Exhibits A and D attached to the counter-affidavit. 45 That there are pending motions on notice to stay execution of judgments in Suit No. NICN/103/2019 and Suit No. NICN/125/2019 before the Court of Appeal, Abuja Judicial Division as evidenced in Exhibits C and F annexed to the counter-affidavit. That Senior Staff Association of Statutory Corporations and Government owned Companies (SSASCGOC) who ought to be the beneficiary of the judgments has not filed any application for enforcement of the judgment before this Court or any competent court at all. Rather, it has stayed action in order not to foist a fait accompli on the Court of Appeal during hearing of the motions for stay and hearing of the appeal. 46. That the claimant cannot seek to enforce the judgments in Suit No. NICN/103/2019 and Suit No. NICN/125/2019 while there is a pending appeal before the Court of Appeal and motions for stay of execution of the judgments before the Court of Appeal, citing Uzodirna v. Izunaso & ors [2011] LPELR-20011(CA). 47. The defendant went on that there is nowhere qualification to contest election into the office of National President of AUPCTRE formed an issue and reliefs in the determination of Suit No. NICN/103/2019 and Suit No. NICN/125/2019 before this Court. That there is no substance in the claim of the claimant before this Court. The claimant has not shown any injury he has suffered that necessitated the initiation of this suit. That the claimant has only set out this case to use the processes of this Court to the annoyance of the defendants and embarrass the 1st defendant. As such, the action of the claimant in this case constitutes abuse of judicial process, citing Ogboru & anor v. Uduaghan & ors [2013] LPELR-20805(SC) and National Association of Pharmaceutical Technologists & Pharmacy Technicians of Nigeria v. Pharmacy Council of Nigeria & ors [2017] LPELR-43485(CA). That the case of the claimant as set out in the originating summons falls squarely within the meaning and constituent of abuse of court process espoused in National Association of Pharmaceutical Technologists & Pharmacy Technicians of Nigeria (supra), urging the Court to so hold. 48. To the defendant, the law is settled that where a court finds that judicial process is abused, the proper order to make is dismissal of the suit, citing GTB v. Innoson (Nig.) Ltd [2018] LPELR-48696(CA). The defendant urged the Court to dismiss the claimant’s originating summons for constituting abuse of the judicial process with an assuaging cost of N700,000 (Seven Hundred Thousand Naira). 49. In respect of issue (3), the defendant submitted that the claimant has failed woefully to proof his case before this Court to be entitled to the reliefs endorsed on the originating summons. That the law is settled that before a claimant can be entitled to reliefs before a court, he must prove his claim by placing credible evidence before the court, citing Enterprises Bank Ltd v. Rola Oil Ltd [2019] LPELR-49427(CA). That the thrust of the claimant’s case before this Court is the enforcement of the judgments of this Court in Suit No. NICN/103/2019 and Suit No. NICN/125/2019. The reliefs are anchored on the judgments. Meanwhile, that the judgments are the subject of pending appeals before the Court of Appeal, Abuja. There are motions for stay of execution of the judgments. That this Court cannot, therefore, proceed to grant the reliefs of the claimant as same will render the appeals nugatory and foist a state of fait accompli on the Court of Appeal, citing National Association of Pharmaceutical Technologists & Pharmacy Technicians of Nigeria v. Pharmacy Council of Nigeria & ors (supra). 50. That the claimant has not placed before this Court his entitlement to the reliefs endorsed on the originating summons, citing S. B. Bakare v. African Continental Bank Ltd [1996] LPELR-708(SC). That relief (1) as endorsed on the originating summons seeks for the 1st defendant to vacate the office of National President of AUPCTRE. Relief (2) is for the declaration of Comrade Solomon Adelegan as National President of AUPCTRE after vacation from the office. Relief (3) is to restrain the 1st defendant from carrying on as the National President of AUPCTRE. That the claimant did not contest for office of the National President of AUPCTRE. The claimant only contested for National Treasurer of AUPCTRE. Accordingly, that the claimant has not shown his entitlement to the suit. The claimant is only fighting a proxy battle for Comrade Solomon Adelegan who, if the reliefs succeeds, will become the National President of AUPCTRE and not the claimant. 51. The defendant continued that the claim of the claimant is anchored on the judgments in Suit NICN/ABJ/103/2019 and Suit NICN/ABJ/125/2019. That the claimant has not placed the portions of the judgments that relates to the reliefs in the originating summons. The claimant has invited this Court to speculate on the portions of the judgments that his claims are anchored. That it is not the practice of our courts to speculate, citing Spring Bank Plc v. Babatunde [2011] LPELR-4975(CA). To the defendant, the claimant failed to place before this Court facts which entitle him to judgment in this suit. That the claimant has only veiled himself as a beneficiary of the judgments and wants to reap from where he did not sow, 52. The claimant had argued that the persons who are qualified to be members of the 2nd defendant are junior staff in Federal/State corporations and not senior staff and relied heavily on the cases in Suit No. NICN/103/2019 and Suit No. NICN/125/2019. To the defendant, this argument is thoroughly misconceived, misdirected and embarrassing. That the claimant is well aware that the judgments he heavily relied on are subject of appeal before the Court of Appeal, Abuja. That the claimant is also aware that there are pending motions for stay execution of the judgments. Yet, the claimant is urging this Court to give life to its previous decision, to wit: Suit No. NICN/103/2019 and Suit No. NICN/125/2019. That the claimant ought to have waited for the outcome of the appeals before seeking enforcement of the judgments in the manner constituted in this case especially as the claimant is also a senior staff and a member of the 2nd defendant. 53. The defendant the urged the Court to discountenance the submissions of the claimant as the case of the claimant is clearly accentuated by malice and bitterness as a result of his loss in 2017 during the election of National officers of the 2nd defendant; and resolve all the issues for determination in favour of the defendants and dismiss the claimant’s suit with punitive cost of N700,000 (Seven Hundred Thousand Naira only) in favour of the defendants. The Claimant’s Reply on Points of Law 54. In replying on points of law, the claimant summarized the argument of the defendant as being: the claimant has no locus standi to institute this suit; and the suit ought not to have been instituted by the claimant as the matters he is seeking interpretation on have been appealed and a motion for stay of execution has been filed by the defendants. The claimant then proceeded to reply to each accordingly. 55. On whether he has the locus to sue, the claimant submitted that contrary to the defendants’ argument, he has the necessary legal capacity and locus standi to institute the suit being a financial member of the 2nd defendant. That this the defendants have admitted in their counter-affidavit in paragraph 23. That it is settled law that the term locus standi, simply put, denotes the legal capacity to institute proceedings in a tribunal or court of law. It is the right of appearance in a court of justice to litigate an issue; to either establish a right or to defend that right against any injury actual or threatened, citing GTB v. Stabilini Visinoni Ltd & ors [2017] LPELR-43561(CA). 56. The claimant went on that it is also trite law that in determining whether a claimant has locus standi or not, the court is enjoined to look only at the statement of claim of the claimant and no other document. In this case, the only document the court is enjoined to look at in determining whether the claimant has locus standi or not is the affidavit in support of the originating summons, citing Inakoju v. Adeleke [2007] 4 NWLR (Pt. 10251 427 at 601 - 602 where the court held that the main test or major determinant of locus standi is whether the claimant who has initiated the proceedings has sufficient interest in the subject matter of the suit. That the claimant is said to have locus standi, if he has shown sufficient interest in the action and that his civil rights and obligations, have been or are in danger of being infringed. The onus of proof is on the party. That the test of sufficient interest in the subject matter of the suit by the claimant is determined by a close examination of the statement of claim. If the interest of the claimant is satisfactorily established, then he is entitled to be heard. That it is clear from the affidavit in support of the originating summons that the claimant has shown sufficient interest in the subject matter being a member of the 2nd defendant. 57. As to whether the claimant should have instituted this action given that the matters he is seeking interpretation of have been appealed against and a motion for stay of execution has been filed by the defendants, that the defendants in arguing their counter-affidavit made heavy weather of the fact that the judgments the claimant is praying the Court to interpret have been appealed against. That curiously, the same defendants admitted in their argument that the judgments were declaratory judgments but then somersaulted and stated that since there is a pending appeal and a motion for stay of execution the claimant ought not to have commenced this action. That the law is trite that an appeal does not operate as a stay and a stay of execution is not granted against a declaratory judgment or a judgment on admission. A declaratory judgment merely declares the rights of the parties, or the legal position of the parties in the action; while a judgment on admission is given after a party admits a claim. That in both cases there is nothing to stay because there is nothing to enforce, citing SPDC (Nig) Ltd v. Amadi & ors [2011] LPELR-3204(SC). So, that one is at loss when the defendants keep referring to the multitude of appeals they have filed and as such forbidding this Court from hearing this suit. In any event, that the claimant in this case is not seeking to enforce any judgment but only requesting this Court to determine certain questions in the light of the previous pronouncements of this Court. 58. That it is premature at this stage of the case for the defendants to be touting the mantra of stay of execution where there is nothing to stay, citing Olabomi & anor v. Oyewinle & ors [2013] LPELR-20969(SC), where the Supreme Court held that a declaratory judgment or order is one that proclaims or declares the existence of a legal relationship, but does not contain any order which may be enforced against the defendant. That once rights declared in a declaratory judgment are infringed fresh proceedings are needed for enforcement. So, where a court delivers a declaratory judgment, the party appealing may be granted an injunction if he deserves it but never a stay of execution pending the determination of the appeal, citing Okoya v. Santilli [1990] 2 NWLR (Pt. 131) 172, Shodeinde v. The Registered Trustees of Ahmadiyya Movement-in-Islam [1980] 1 - 2 SC 163 and Awoniyi & ors v. The Reg. Trustees of AMORC (Nig) [2000] LPELR-655(SC). 59. The claimant concluded by submitting that it is crystal clear that this Court has the unfettered jurisdiction to competently hear and determine the suit and as the Court is not barred by any pending suit or motion for stay of execution, urging the Court to so ho1d. COURT’S DECISION 60. I have given due consideration to all the processes and submissions of the parties. I start off with the defendants’ preliminary objection. Decision on the Preliminary Objection 61. The thrust of the defendants’ preliminary objection is that the cause of action in this suit relates to intra-union dispute within the contemplation of Rule 27 of the constitution of the 2nd defendant (the Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees) and section 4(1) of the Trade Disputes Act (TDA). And because the dispute is an intra-union dispute, the claimant did not exhaust the dispute resolution mechanism enjoined by the said Rule 27. Accordingly, this Court has no jurisdiction to hear the case. 62. Rule 27 of the constitution of the 2nd defendant titled “Intra Union Disputes” provides thus: (a) In the event of the occurrence of intra union dispute(s) any aggrieved member or Branch shall in the first instance report the matter in writing to the General Secretary. (b) The General Secretary shall within two weeks of being notified of the intra-union dispute endeavour to settle the dispute. (c) If the General Secretary is unable to settle the dispute satisfactorily, within 60 days from the date of the report, the matter shall be referred to the NEC by the General Secretary. (d) The NEC shall endeavour to resolve the dispute within 90 days. If the NEC is unable to resolve the dispute within the 90 days from the date of the report, the matter shall be referred to the NGC. The decision of the NGC shall be binding. (e) The processes of items (a) - (b) should apply to the State. However, a member is free to appeal to the higher organ. (f) No aggrieved member or branch shall employ other processes including court litigation to resolve intra-union dispute in AUPCTRE without exhausting the laid down procedure enumerated in this Rule. 63. The argument of the defendants is that given section 4(1) of the TDA, the claimant is enjoined by Rule 27 of the constitution of the 2nd defendant to exhaust the domestic remedy enjoined therein before he can come to this Court. Section 4(1) of the TDA itself provides as follows: If there exist agreed means for settlement of the dispute apart from this Act, whether by virtue of the provisions of any agreement between organizations representing the interest of employers and organization of workers or any other agreement, the parties to the disputes shall first attempt to settle it by that means. 64. The claimant’s answer is that since he is questioning the 1st defendant’s membership and hence headship of the 2nd defendant, the dispute in issue cannot even be branded as an intra-union dispute. And because the 1st defendant is not a member of the 2nd defendant, he is not bound by the constitution of the 2nd defendant. 65. I agree with the claimant that the question whether the 1st defendant is a member, and so qualifies to be the National President, of the 2nd defendant is one that cannot go through the processes enjoined under Rule 27 of the 2nd defendant’s constitution. The 1st defendant is said to be the National President of the 2nd defendant. Common sense will frown on a dispute resolution process, where the 1st defendant is a key dramatis persona, being first adhered to before any access to court can be made. As President of the 2nd defendant, the 1st defendant is a member of the National Governing Council (NGC) — Rule 7 of the 2nd defendant’s constitution. He is also a member of the National Executive Council (NEC) — Rule 8 of the 2nd defendant’s constitution. By Rule 15 of the 2nd defendant’s constitution, the 1st defendant as National President is duty bound to superintend the functions of the NGC and NEC, and preside at meetings of the NGC and NEC amongst others. Rule 27 gives pivotal roles to the NEC and NGC in the resolution of intra-union disputes of the 2nd defendant. The argument of the defendants that the claimant needs to exhaust the dispute resolution processes of Rule 27 before he can come to this Court is accordingly not tenable and so is hereby rejected. I so hold. On this score, the defendants’ preliminary objection fails and so is hereby dismissed. I so rule. Decision on the Originating Summons 66. I now proceed to the merit of the originating summons. I must, however, first state that the two cases referred to in the first question posed by the claimant in this case were not even front-loaded by the claimant. In Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor [2019] LPELR-46413(SC) unreported Suit No. SC.622/2015, the judgment of which was delivered on 18 January 2019, Her Ladyship Augie, JSC was quite strict in stating that: It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon - see Chidoka & anor v. First City Finance Co. Ltd [2013] 5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)… Order 3 Rule 1 of the NICN Rules 2017 allows an action to be commenced by way of originating summons in this Court. The documents to accompany the originating summons are provided for under Order 3 Rule 17 of the NICN Rules 2017. These documents include “copies of the instrument indicating part(s) sought to be construed (other than an enactment) and other related documents” — Order 3 Rule 17(1)(b). What I gather from this provision is that only enactments are exempted from being front-loaded in an originating summons. The claimant accordingly ought to have front-loaded certified true copies of the two cases he referred to in his first question posed for determination. I so hold. The failure to do so is fatal to his case. I so hold. 67. In their reaction to the claimant’s originating summons, the defendants raised two issues as to the competence of the suit as filed by the claimant. To the defendants, the claimant has no locus standi to enforce the judgments of this Court in Suit No. NICN/103/2019 and Suit No. NICN/125/2019 against the defendants in the manner constituted in this suit. And that this suit constitutes an abuse of judicial/court process. 68. Before looking at the merit of these issues raised by the defendants, I need to correct an erroneous impression of the defendant especially in terms of their first issue. The defendant’s argument is that the claimant cannot seek to enforce the judgments in Suit No. NICN/103/2019 and Suit No. NICN/125/2019 while there is a pending appeal before the Court of Appeal and motions for stay of execution of the judgments before the Court of Appeal. Here, the defendant assumes that the instant suit of the claimant is one for enforcement. This is far from being correct. The same erroneous argument was advanced before me in Corporate Affairs Commission (CAC) v. AUPCTRE unreported Suit No. NICN/ABJ/45/2021, the judgment of which was delivered on 27 May 2021 regarding Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees (AUPCTRE) Suit No. NICN/ABJ/125/2019, the judgment of which was delivered on 17 December 2019, the very second case referred to in the first question posed by the claimant in the instant case. I rejected the argument holding that what was before the Court was not the enforcement of the judgment, but its interpretation and application to the new fact situation that has been brought to the Court. I adopt the same reasoning and holding here and hold the defendant out of place in its argument. I so rule. 69. What this means is that the issue of the claimant’s locus is not as to enforcement but as to filing this suit as he did. In paragraph 3 of the affidavit in support of the originating summons, the claimant averred that he is a civil servant and bonafide member of the 2nd defendant, AUPCTRE. In answer, the defendants in paragraph 23 of their counter-affidavit of 15 June 2021 averred that the claimant himself is a senior staff on Grade Level 14 Step 11 who claims to be a bonafide member of the 2nd defendant. The defendants then attached as Exhibit G the claimant’s pay-slip for the month of January 2021, which shows the claimant to be on GL 14 Step 11 and so is a senior staff in the public service. Exhibit G is a January 2021 pay-slip bearing the name of the claimant on it. The claimant is said to be on GL 14 Step 11, with an IPPIS Number of 110860. His Ministry is said to be National Youth Service Corps. Exhibit G also shows that CONPSS Union Dues of N2,627.00 was deducted from the claimant’s January salary. In his further affidavit in support of the originating summons, the claimant in paragraph 3 averred that he is a staff of National Youth Service Corps (NYSC) and a bonafide financial member of the 2nd defendant. To the defendant’s specific averment that the claimant is a senior staff on GL 14 Step 11 (emphasis being on senior), the claimant remained silent. On the attached Exhibit G, the claimant did not deny the fact of being a senior staff. All of this means that the claimant admits that he is a senior staff on GL 14 Step 11. I so find and hold. 70. Now, in Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees (AUPCTRE) Suit No. NICN/ABJ/125/2019, the judgment of which was delivered on 17 December 2019, the defendant (AUPCTRE) was declared by Anuwe J to be a union for junior staff cadre in Federal/State Government Statutory Corporations and Government owned companies and expressly restrained from unionizing the staff in the senior cadre of such bodies. In fact, this is the second case the claimant in the instant case referred to in the first question he posed for determination by this Court. Contrary to the thinking of the defendants, Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees (AUPCTRE) Suit No. NICN/ABJ/125/2019, the judgment of which was delivered on 17 December 2019 remains a valid and subsisting judgment since it has not been upturned or set aside by the Court of Appeal. It remains valid for purposes of interpretation and application. It can even be enforced if it qualifies to be enforced since by section 47 of the National Industrial Court (NIC) Act 2006 an appeal does not act as a stay. 71. So, if the 2nd defendant is a union for junior staff as held in several cases by this Court, as typified by Senior Staff Association of Statutory Corporations and Government Owned Companies (SSASCGOC) & anor v. Amalgamated Union of Public Corporations Civil Service Technical and Recreational Service Employees (AUPCTRE) Suit No. NICN/ABJ/125/2019, the judgment of which was delivered on 17 December 2019, is the claimant himself (a senior staff at that) rightly a member of the 2nd defendant? And if he is not rightly a member of the 2nd defendant, does he have the locus to bring this suit? The evidence shows the claimant to be on GL 14 Step 11. In this position, the claimant is a senior staff since it is common knowledge that in the public service junior staff are those on GL 1 to 6. As a senior staff, the claimant himself has no business being a member of the 2nd defendant; and so lacks the locus to come to this Court as he has done in the instant suit. I so hold. For this chief reason, I agree that the claimant has no locus to bring this suit. This being so, the instant suit is incompetently brought by the claimant. I so hold. 72. The defendants’ third issue is that the claimant cannot even be said to have proved his case. In paragraphs 4 and 9 of the affidavit in support of the originating summons, the claimant averred that the 1st defendant is a senior staff of the Federal Housing Authority (FHA). What proof is there of this beyond this ipse dixit? The Court was not shown any. The appointment letter showing that the 1st defendant is a staff, and a senior one at that, was not attached to the supporting affidavit. In the recent case of AUPCTRE v. CAC & anor unreported Suit No. NICN/ABJ/62/2021, the judgment of which was delivered on 7 October 2021, the argument of the defendants, supported only by an ipse dixit, that certain named staff it queried were not members of the claimant union (AUPCTRE) because they are senior staff was rejected by this Court on the ground that no proof of being senior staff was presented to the Court by the defendants. 73. In the instant case, I asked counsel for the claimant in open court where the proof of the appointment of the 1st defendant with the FHA is and all he said is that that fact has been admitted by the defendants. First, the FHA is not a party to the present suit. As such, a fact like being staff of the FHA cannot be proved by admission since the claimant is praying for declarations in his reliefs (1) and (2). The law is that declarations must be proved on the strength of the claimant’s evidence, not the weakness of the defendant’s or even its admission. Dumez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, states that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant. See also Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4 December 2018 and Mr Ayodele A. Opaleye v. NNPC unreported Suit No. NICN/ABJ/240/2018, the judgment of which was delivered on 28 July 2021. 74. The law is that in originating summons, the supporting affidavit stands in the position of pleadings and so averments that are beyond the ipse dixit of the person averring to the affidavit must have their supporting evidence. See Agbakoba v. INEC [2008] 18 NWLR (Pt. 1119) 489 and Mrs Susan Olapeju Sinmisola Olly v. Hon. Olukolu Ganiyu Tunji & ors [2012] LPELR-7911(CA). This is not the case here. Key averments such as the averment that the 1st defendant is a senior staff of the FHA as not supported by any documentary evidence. 75. Additionally, relief (2), for instance, prayed for by the claimant in his originating summons is a prayer for “a declaration that the person with the second higher votes in the election that produced the 1st defendant as President of the union be immediately returned and sworn in as the President of the 2nd defendant union”. Who is this “person with the second higher votes…”? The Court was not told by the claimant — not even in his affidavit in support. It was, however, the defendants who in their reaction supplied the name of the person with the 2nd highest vote as Comrade Solomon Adelegan. But the law, as I just stated, remains that in claims for declarations, the claimant succeeds on his own evidence, not the defendant’s. 76. The very fact that the claimant did not prove by credible evidence his assertion that the 1st defendant is a senior staff of the FHA means that the three questions he posed for determination by this Court cannot even be considered and answered. And once these questions cannot be considered and answered, the talk of granting him any of the reliefs he claims does not even arise. This said, the claimant’s case fails in its totality. It is accordingly dismissed. 77. Judgment is entered accordingly. Cost is put at Three Hundred Thousand (N300,000.00) only payable by the claimant to the defendants within 30 days of this judgment; failing which it shall attract simple interest at 10% per annum until fully paid. …………………………………… Hon. Justice B. B. Kanyip, PhD