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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice F. A. Obaseki-Osaghae - Judge Hon. Justice F. T. Agbadu-Fishim - Judge DATE: FEBRUARY 10, 2011 SUIT No. NIC /LA/20/2010 BETWEEN Mr. I. D. Benson (Odibo) Mr. Osagie Aruoma Mr. J. Osayamen (for themselves and on behalf of seventeen (17) suspended members of NASU, University of Benin Brand) - Appellants AND Non-Academic Staff Union of Educational c Associated Institution (NASU) - Respondent REPRESENTATION F.E Edogiawere Esq., for the appellants A. Eromosele Esq., for the respondent JUDGMENT By two instruments, one dated June 8, 2010 with Ref. No. ML.HE/934/CON/l/46 and the other dated April 2010, the Honourable Minister of Labour and Productivity acting under the powers conferred on him by section 14(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 referred this matter to this court to inquire into the intra-union dispute between the parties over the following issues — i. Unlawful exclusion from participating in Election. ii. Unlawful suspension/expulsion from the Union (NASU) without trial. These issues had earlier been referred to the industrial Arbitration Panel (IAP) by the Honourable Minister of Labour through an instrument dated 23rd June 2009. On 11th February 2010, the IAP gave its award, the summary of which is that — 1. The suspension and subsequent expulsion of the 17 members of the 1st party (the appellants in this matter) by the second party (the respondent herein) are hereby declared illegal and, therefore, null and void. 2. The election of the Branch Executive Committee of the 2nd Party (the University of Benin Branch) held on 10th May 2007 is hereby declared valid. Parties were accordingly notified of the award of the IAP. By a letter dated 19th March, 2010 and addressed to the Honourable Minister of Labour and Productivity, 1st appellant while accepting the first IAP award nullifying the suspension and expulsion of the appellant objected to the 2nd IAP award. In particular, they asserted that the 2nd term of reference regarding the unlawful exclusion from participation in election was addressed by the IAP. They then called for the nullification of the election conducted on 10th May, 2010. It was on the basis of this objection that the Honourable Minister for Labour and Productivity referred the matter to this court. As enjoined by the Rules of this court, the appellants filed a notice of appeal in terms of their objection to the IAP award. The notice of appeal was filed pursuant to Order 3 Rule 5 of the National Industrial Court (NIC) Rules 2007. By the notice of appeal, the appellants essentially prayed as follows — PART OF THE AWARD APPEALED AGAINST The second part of the Award GROUNDS OF APPEAL Ground one Whether the exclusion of the 17 suspended NASU members from participating in the election into the Executive Committee of the University of Benin Branch held on the 10th of May 2007 does not make the election illegal, null and void. Particulars of error 1. The process of suspension of the 17 members of the 1st party by the 2 party does not comply with paragraph 3(ii) of Schedule 1 to the constitution of the 2nd party and paragraph 4(1) Schedule l (Code of Practice) of the 2nd party. 2. The suspended members of the 1st party were precluded from exercising their right of franchise, that is, right to vote and be voted for contrary to the provisions of the constitution of the Federal Republic of Nigeria 1999. 3. The 2nd party conducted the year 2007 election into the Executive Committee of the University of Benin Branch on the l0th of May 2007 at the time the 17 members of the 1st party were on suspension and they have earlier concluded all formalities to contest for one office or the other in the election as indicated in the nomination form completed by those interested in vying for positions. 4. The excluded members were screened by the electoral committee and all the conditions precedent stipulated for the election was satisfied. Nomination form which is the only criteria for contesting for positions by financial members were duly completed, signed and submitted. Ground two Whether the year 2007 election as conducted by the 2nd party (University of Benin Branch) by Electoral College (delegates) system as opposed to at the General Meeting held on 20th March 2007 by majority members of the party has not make the election null and void. Particulars of error 1. It is the General Meeting that has the authority to take decision on the manner in which election can be conducted as provided for in paragraph 7(b) of the Code of Practice of the 2nd party. 2. The 2nd party (University of Benin Branch) erred when it went ahead to conduct the election by delegate system as against the decision of the majority of its members when the voice and vote of the people is supreme. Group three Whether the year 2007 electoral Guidelines issued by the General Secretary is binding on NASU Branches in view of paragraph 7(b) of the Code of Practice of the 2nd party. Particulars of error 1. The General Guideline for year 2007 Branch Meeting /Election issued by the 2nd party is in conflict with the provisions of the constitution of the 2nd party Rule 5 which refers to Quadrennial Delegates Conference not Branch Election. 3. The majority of the members of the 1st party at its general meeting held on 20th March 2007 resolved to conduct the Branch election at Mass Meeting as stated in paragraph (7b) of the general guidelines. 3. The General Guidelines also infringes on the membership rights and responsibilities as contained in Schedule 1 Code of Practice paragraph 4 of the 2nd party constitution. RELIEF SOUGHT FROM THE NATIONAL INDUSTRIAL COURT To allow the appeal and set aside the second part of the Industrial Arbitration Panel Award and in its place make an order declaring the election held on 10th May 2007 by the 2nd party null and void. PERSON DIRECTLY AFFECTED BY THE APPEAL Non academic Staff Union of Educational & Associated Institutions (NASU). (We note that typographical errors and the errors in expression by counsel to the appellants in the notice of appeal and urge that counsel takes particular care in proofreading and correcting court processes before they are filed) Accompanying the notice of appeal is the appellants’ brief of argument together with 26 diverse document relating to the matter. The appellants’ written address consists of 9 main paragraphs (paragraphs 1.0 — 9.0). A look at the appellants’ written brief of argument reveals a number of errors of counsel in terms of spellings, tenses and sentence construction. A situation where counsel expects that the court will be his proofreader and hence correct grammatical errors is most unfortunate. to say the least. A counsel must appreciate the simple fact that advocacy entails clarity of expression; for how else can a lawyer successfully argue a client’s case? The respondent entered appearance on 3rd November 2010 and then filed its respondent’s reply brief of arguments on 9th December 2010. The respondents written address is not numbered numerically. Instead it is broken down into headings with some of the headings numbered alphabetically. Like the appellants’ written address, the respondent’s written address has its fair share of errors both in spelling and grammar. The appellants after perusing the respondent’s brief of argument asserted that they did not find any reason to file any reply on points of law. The appellants did not, therefore, file any reply on points of law. For the purposes of this judgment, the essential part of the appellants’ written address (reproduced as verbatim as possible) is as follows: 1.0 INTRODUCTION 1.1 This is an appeal against the Award of the Industrial Arbitration Panel, Abuja delivered on 11th day of February. 1.2 There existed intra-union trade dispute within Non-Academic Staff Union of Educational and Associated Institution (NASU), University of Benin Branch. 1.3 The 1st Party/Appellants were unlawfully suspended and subsequently expelled from NASU, University of Benin Branch by the 2nd party/respondent thereby excluding them from participating in NASU, University of Benin Branch election held m 10th May 2007. 1.4 The 1st Party/Appellants first wrote a letter to the State Secretariat, NASU, Edo State without any response to their letter of complaint. 1.5 The Party/Appellants then wrote a letter to the Honourable Minister of Labour and Productivity for possible settlement. The Minister having failed to bring about amicable settlement of’ the dispute between the parties referred the party appellants’ corn plaint to the Industrial Arbitration Panel, Abuja. 1.6 The 1st Party/Appellants filed their memorandum at the industrial Arbitration Panel Abuja listing out the points of grievances. The 1st Party/Appellants’ memorandum is at pages 1-7 of the record of appeal. 1.7 The Industrial Arbitration Panel gave their final Award by declaring the suspension and subsequent expulsion of the 17 members of NASU, University of Benin Branch illegal and, therefore, null and void, while the election of the Branch Executive Committee held on the 10th day of May 2007 was declared valid. The 1st Party/Appellants being dissatisfied with the second arm of the Award have, therefore, appealed to this Court. 2.0 ISSUES FOR DETERMINATION The 1st Party/Appellants lodged a three ground notice of appeal in this Honourable Court. From the three grounds on the said notice of appeal, the under listed issues are formulated for the determination in this appeal. The issues are listed hereunder: 1. Whether the exclusion of the 1st Party/Appellants when they were unlawfully placed on suspension and subsequently expelled as NASU members thereby preventing them from participating in the election held on 10th May 2007 to elect the Executive Committee of NASU, University of Benin Branch has not made the election null and void. 2. Whether the year 2007 election conducted by the 2nd Party (University of Benin Branch) by Electoral College (delegate) system as opposed to at the General Meeting held on 20th March, 2007 by the majority of members of NASU, University of Benin Branch has not made the election null and void. 3. whether the year 2007 electoral guidelines issued by the General Secretary is binding on NASU Branches in view of paragraph 7(b) of the Code of Practice of the 2nd party. 3.0 STATEMENT OF FACTS 3.1 The 1st Party/Appellants prior to their suspension/expulsion were financial members of NASU, University of Benin Branch and they were also active members of the union at the Branch level. 3.2 When it became obvious that the tenure of the out gone Executive Committee Members of NASU, University of Benin Branch headed by Mr. S. A. Adefemi expired on the 12th day of March 2007 and election was supposed to have been held o replace the NASU Executive Members was not held. And when nothing seem to be done by the General Secretary, NASU to comply with the relevant provision of NASU constitution, members became very agitated over the nonchalant attitude of the General Secretary to conduct fresh election to usher in new executive Members in compliance with the NASU constitution. A copy of the NASU Constitution is at pages 8 – 45 of the record of appeal. 3.3 When it became obvious to party/appellants that the General Secretary, acting on the advice of the then Branch Chairman, Mr. S. A. Adefemi that the election scheduled to hold on l2th March, 2007 will be conducted by Delegate as opposed to General Election opted for by members; they wrote a protest letter to the Branch Chairman and copied the General Secretary, NASU Headquarters, Ibadan and the Vice Chancellor, University of Benin expressing their outright refusal of Delegate Election. A copy of the letter is at pages 53 — 61 of the record of appeal. 3.4 From the facts of this matter and grounds of Appeal highlighted above, the issues that arise for determination are as follows: 4.0 ISSUE Whether the exclusion of the 1st Party/Appellants when they were unlawfully placed on suspension and subsequently expelled as NASU members thereby preventing them from participating in the election held on 10th May, 2007 to elect the Executive Committee of NASU, University of Benin has not make the election null and void. 4.1 ARGUMENT The 1st Party/Appellant prior to their suspension and subsequent expulsion from NASU, have earlier been given the NASU Year 2007 Branch Nomination Forms which they duly completed and submitted after which they were screened and accepted to contest the election by the then Executive Members before their masterminded letter of suspension was handed over them the general secretary, they having been screened and accepted, there on other certificate of clearance required before they could present themselves for the election the usual practice is that once the election nomination are completed and accepted and the candidate been screened: all that the candidate needs to do is to go out and start campaigning for the position is vying for the Branch Executive Committee. 4.2 The suspension and subsequent expulsion of the 1st Party/Appellants By the 2nd party/ respondent precluded them from participating in the election. Find they participated in the election, they would have voted and he voted for. The Suspension which was held by the Industrial Arbitration Panel to be wrongful illegal for what a fair hearing was what precluded the suspended members (1st Party/Appellants) from participating in the election. The election conducted on 10th May 007 at the time 1st Party/Appellants were on suspension should be declared null and void. 4.3 My Lords, we submit that it has usual practice of general secretary to suspend active and vibrant members NASU in order to prevent them from participating in elections in which they keenly interested in vying for positions only to recall them after the election is over. It can be recalled that in the year 1999, prior to the period of electing new executive member of NASU, University of Benin Branch one of the 1st Party/Appellants herein who was interested in vying for a position then was suspended by the General Secretary by a letter dated 12th July 1999. His suspension by General Secretary prevented him from participating in the year 1999 Election conducted to Executive Members of NASU, University of Benin Branch. His suspension was lifted after the election was conducted which brought in the out gone Executive Members headed By Mr. S. A. Adefemi. The letter of suspension dated 12th July 1999 is at page 94 of the records of appeal, while the letter lifting the suspension dated 12th July 1999 is at page 94 of the records of appeal, while the letter lifting the suspension order are at pages 95 — 100 of records of appeal. 4.4 Finally, we submit that the 1st Party/Appellants have proved that they have fulfilled all necessary condition precedent that rendered them eligible to participate in the election but for their wrongful illegal suspension by the 2nd Party/Respondent which resulted in their wrongful exclusion from participating in the election. Therefore, I urge my Lords to set aside the Award of the industrial Arbitration Panel by setting aside the 2nd arm of the Award which declared the election valid as the conduct of the election did not comply with the constitution of the 2nd Party/Respondent— Code of Practice, Paragraph 7(b) thereof. 5.0 ISSUE 2 Whether the year 2007 election conducted by the 2nd Party (University of Benin Branch) by Electoral College (delegate) system as opposed to at the General Meeting held on 20th March 2007 by the majority of members of NASU, University of Benin Branch has not make the election null and void. 5.1 ARGUMENT My Lords, it is our humble submission that the 2007 election conducted by the 2nd Party (University of Benin Branch by Electoral College (delegate) system considering the provisions of paragraph 4(i) (a) (b) (c) & (d) of Schedule to the constitution of the 2nd Party is null and void. 5.2 Paragraph 4(i) (a) (b) (c) & (d) of Scheduled 1 (Code of Practice) to the constitution of the 2nd Party provides as follows: 4(i) each member of a trade union shah have the right to full and free participation in the government of his trade union. This shall include the right: (a) to vote periodically, as provided in the union constitution and rules for branch or district, state or trade group and national officers either directly or through delegates; (b) to honestly and democratically conduct elections; (c) to stand for and hold office, subject only to fair and reasonable qualifications uniformly imposed; (d) to (express his views as to the method in which the union’s affairs shall be conducted. The above provisions guaranteed the right of members to participate in the activities of their union particularly to participate in electioneering process of the union in accordance with the provision of the constitution of the union and Rules of the 2nd Party. 5.3 The 2007 Election Guidelines issued by the General Secretary did not make it mandatory for the 2nd Party (University of Benin Branch) to conduct its election into the Branch Executive through Electoral College system. Paragraph 7(b) of the Election Guidelines states as follows: “7(b) In the case of election of mass meeting, decisions to hold election at mass meeting shall be taken by the general meeting and reported in writing to the General Secretary within two weeks of such decisions by the branch”. 5.4 Paragraph 7(b) of the Election Guidelines issued by the General Secretary gave the Branch the power to decide on whether to go on mass election or delegate system. Therefore, it is the General Meeting of the Branch that has power to take decision on the manner in which election should he conducted. 5.5 At a General Meeting held by the 1st Party to decide on which mode to adopt for the 2007 election, it was the majority decision that the election be conducted through mass election as against the delegate system. As a follow up to their refusal of the delegate system of election, they wrote a protest letter to the Branch Chairman and copied the General Secretary, NASU Headquarters, Ibadan and the Vice Chancellor, University of Benin expressing their outright refusal to Delegates Election. A copy of the letter is at pages 53 –61 of the record of appeal. 5.6 My lords, in view of the fact that it is the General Meeting of the Branch that has power to take decision on the manner in which election should be conducted; University of Ibadan Branch which has more than one thousand (1 ,000) members conducted its election through mass election as opposed to Election College system. The lst Party having protested against the Electoral College system, the 2nd Party (University of Benin Branch) was wrong to have gone ahead and conduct the year 2007 election through Electoral College (delegate) system. 5.7 I submit, therefore, that the Industrial Arbitration Panel erred when it held that the 2nd Party NASU (University of Benin Branch was right to have conducted the 2007 election of its Branch Executive through Electoral College system. 6.0 ISSUE Whether the year 2007 Electoral guidelines issued by the General Secretary is binding on NASU Branches in view of paragraph 7(b) of the Code of Practice of the 2nd Party. 6.1 ARGUMENT My Lords, is my humble submission that paragraphs 7(b) of the year 2007 Electoral Guideline issued by the General Secretary makes it optional for Branches who wish to conduct their election by mass meeting to take such decision at the General Meeting and report same in writing to the General Secretary. 6.2 The 1st at its General Meeting rejected the Electoral College system and communicated their decision to the General Secretary in compliance with paragraph 7(b) of the year 2007 Electoral Guidelines. Therefore, the year 2007 Electoral Guidelines issued by the General Secretary is not binding on NASU Branches as they are at liberty to decide which mode to adopt in the conduct of election into the Branch Executive. 7.0 CONCLUSION I urge My Lords to set aside the second arm of the Industrial Arbitration Panel Award delivered on 11th day of February 2010 by declaring the election of the Branch Executive of the 2nd Party (University of Benin Branch) held on the 10th day of May 2007 null and void. 7.1 The Court is also prayed to uphold this appeal. In the written address, the counsel to appellants did not cite any case law authority (Nigerian or foreign) to support his submissions. All that was referred to as statutory authority is the constitution of NASU as approved by the Fifty Rules Conference of NASU on Tuesday 25th day of November 2003. We doubt the veracity of this postulation given that the cemetery learning would suggest that the NASU constitution is an ordinary document, not a statute. The essential part of the respondent’s reply written address (also reproduced as verbatim as possible) is as follows INTRODUCTION: Party/Respondent is the umbrella body of Non-Academic Staff Union of Educational & Associated institutions (NASU) in Nigeria. It has branches all over Nigeria including for the purpose of this case, a Branch Union at the University of Benin. (b) The outgone Executive Committee of this Branch Union ended its tenure of office by delegate election which brought in the current executive to office on 10/5/2007. (c) The election of members of the current executive ought to have been held on 12th March, 2007. (d) The 1st Party Appellants protested against the holding of the election by use of Delegate Election on 12th March, 2007. (e) Their protest letters are attached to CLAIMANTS’ PAE MEMORANDUM before the Industrial Arbitration Panel (IAP) and can be found at pages 53 –76 of the record of appeal. (f) The first Party/Appellants through their arrow-head, Benson Odibo was issued a query for inciting members of NASU in the University of Benin Branch to explain why he incited (NASU) members and organized protest March against the attempt to hold the Delegate Election. See pages 125 —177 of the record of appeal. (g) The first Party/Appellant was issued letters of suspension see pages 179 to 184 and 199 to 210 of the record of appeal. They were subsequently expelled as members of the NASU Union in the University of Benin Branch. (h) The delegate election was however held on 10th May, 2007. (i) The 1st Party/Appellants instituted an action in the High Court of Benin per Suit Nos. B/132/OS/2007: I. D. Odibo and 16 ors vs NASU & 30rs which struck out on grounds of lack of jurisdiction. j) The 1st Party/Appellants through I.D BENSON (ODIBO) instituted another action in the National Industrial Court Enugu per Suit No: NIC/56/2007 against Non Academic Staff Union of Educational and Associated Institutions (NASU) and 3 ors. This suit after a very well considered ruling on 9-6-2008 was struck out on ground of lack of original jurisdiction to entertain the matter. (k) The 1st Party/Appellants applied to the Honourable Minister of Labour and productivity for amicable settlement of the intra Union dispute between the parties. (I) The Intervention of the Honourable Minister was rejected by the 1st Party/Appellants who opted for Industrial Arbitration Panel (IAP) Abuja. (m) The Industrial Arbitration Panel held as follows: (a) The suspension and subsequent expulsion of the 17 members of the 131 party by the 21 party are hereby declared illegal and therefore null and void. (b) The election of the Branch Executive Committee of the 2 party (University of Benin Branch) held on the l0th day of May, 2007 is hereby declared valid. (n) The 1st Party/Appellants then appealed against the 2nd arm of the above judgment of the (I.A.P) to this Honourable Court. (o) The exhibits relied upon by the 1st Party/Appellants in pursuit of this appeal can be found in the INDEX and S/No PARTICULARS at pages 4 to 5 of their Brief of Argument dated 23rd day of August, 2010 filed by the Party/Appellant. (p) The 2nd Party/Respondent has in reaction to the 1st Party/Appellants case filed the fo11owing documents viz:- REPLY TO FIRST PARTY’S MEMORANDUM AND NASU SECOND RE CTION TO COMPLAINANT’S IF ORANDUM. These can he found at pages 101 to 144 and 211 to 244 of the record of appeal. STATEMENT OF FACTS (a) The parties to this appeal are members of the Non-Academic Staff Union of Educational and Associated Institutions (NASU), University of Benin Branch. (b) The 1st party pay their dues through check off method of deducting dues from their salaries. (c) The 1st Party/Appellants attend meetings irregularly and led by their arrow-head, I.D. Benson (Odibo) have always criticized and found faults with the outgone Executive under the chairmanship of S. A. Adefemi. (d) The outgone Executive was supposed to end its tenure of office on 12/3/2007. (e) The General Secretary issued Guidelines for the year 2007 General Meetings/Election for all Branch Union between February - July, 2007. (f) The Chairman of the branch union in the University of Benin held a meeting on 8/2/2007 to brief all elders of the union drawn from Faculties, Departments, and Unit etc to explain the context of the Guidelines. (g) The 1st Party/Appellants and other members raised no objection about the Guidelines during the meeting. (h) Even before 12/3/2007 the 1st Party/Appellant as usual started their agitation and opposition to Delegate Election saying that there is no provision for it in the Union’s Constitution. (i) The 1st Party/Appellants wrote a flood of protest letters against holding the Delegate Election. These protest letters and the reactions from the outgone executing can be found at pages 46 to 76 of the record of appeal. (j) The lst Party/Appellants filed an action in High Court Benin against NASU and Branch Executives without first exhausting the methods of settlement of inter and intra Union disputes. (k) The 1st Party/Appellants were then queried, suspended and expelled as membership of the union. APPEAL TO INDUSTRIAL COURT (NIC) The appellants being dissatisfied with the judgment of Industrial Arbitration Panel lodged this appeal vide Notice of Appeal file on 23rd August, 2010. ISSUES FOR DETERMINATIION The 2nd Party/Respondent hereby submits that the only issue for determination in this appeal is as stated hereunder. ISSUE 1 Whether the decision of the Industrial Arbitration Panel declaring the Delegate Election held on 10/5/2007 as valid is legal and sustainable even in the face of the exclusion of the appellants from the election. ARGUMENT I submit my Lords that the query issued to the 1st Party/Appellants, I.D. Benson (Odibo) was as a result of the inciting letter of 17/1/2007 headed: GREETINGS TO ALL N.A.S.U. MEMBER addressed to the Secretary of the out-gone executive (see Page 46 of the record). In this letter, the writer called for a caretaker committee to take over the administration of NASU in the University of Benin Branch Paragraphs 3, 5, 8, 9 and 10 of said letter speak volumes as the nature of incitement contained in it. This resulted in the query dated 18/1/2007 issued to the said I. D. Benson (Odibo). This query can he found at page 48-49, of the record of appeal. The reply to the query is at page 50 of the record of appeal. The contents of the answer to the query are even more provocation at pages 54-61 of the record of appeal. Yet another letter dated 18/2/2007 credited to the 118 members protecting against the Election. The letter was headed: PROTEST AGAINST THE PROPOSED NASU DELEGATE ELECTION SLATED MARCH 12TH 2007, I submit that all the 118 names were obtained by fraud as many of them were not aware of the collection of their signature. The 1st Part/Appellants cannot defend this. By yet another letter dated 6/3/2007 addressed to the vice chancellor and signed by I. D. Benson (Odibo) and four others who are no longer members of 1st Party/appellants, the latter headed their letter. PROTEST AGAINST THE PROPOSED NASU DELEGATE ELECTION SCHEDULED FOR MARCH 12TH 2007 (paragraphs 4, 8, 11 & 13 are pertinent) see pages 62-64 of the record of appeal. By other two letters each date 26/3/2007 at pages 70-76 of the record appeal, some of them were directed to General Secretary at lbadan. In view of the above, the National Executive Council was right in suspending the appellants and subsequently expelling them pages 77-88 of the appeal record refer. By reason of their questionable conduct cannot eat their cake and still have it. I submit that from the above, it is clear that the acts of the appellants amounted to misconduct which the Union’s Constitution cannot condone. Their actions offend against the Constitution rules and Order of Business (see page 51, of the constitution paragraphs 6 on MISCONDUCT which provides, “The National Executive Council shall have the power to impose the following disciplinary measures on any member or officer for serious misconduct. (a) fine; (b,) Suspension; (c) Expulsion” On the issue of EXPLUSION, the constitution provides; “A branch or individual members that takes the Union to court without exhausting all the constitutional provisions for redress shall be expelled from the Union. Expelled member shall forfeit or the rights of membership. This is exactly what happened in this case. My Lords, I submit that the National Executive Council was right in preventing the appellant from participating in the elections by their letters of suspension of expulsion. Their acts of indiscipline cannot be tolerated as they would have destroyed the Union in the University of Benin Branch. My Lords pages 59 4 (1) (a) of the constitution and order or Business provides for the use of Delegates Election. At page 137 of the record of appeal and page 59 of the constitution, the section 4 (1) (a) reads as follows: to vote periodically as provided in the Union Constitution and rules for branch or district state or trade group and national officers either directly or through delegates. Underlining is mine. My Lords, Rule 1: (a) at page 10 of the record which is page I of the Constitution provides that persons of either sex may be admitted members of the Union and upon being admitted shall be deemed to agree to abide by the rules of the Union in every respect. Underlining is mine. If in the opinion of the National Executive Council, a person fails to abide by the rules at anytime, that person shalt be liable to forfeit membership”. This is exactly what has applied to the 1st party appellant for their unruly behaviour. I submit that the appellants herein are guilty of this in failing to abide by the rules at all times. I submit my lords and concede the facts that every member has a right to vote and be voted for under the provisions of membership rights and Responsibilities in the 1st schedule of the constitution but that right should not be abused as the appellants did in this extant case on appeal. See page 40 of the record appeal and the constitution of the union in paragraph 3 at page 8 see section 4 (d) (iii) which provides:-”Each members has the responsibility, fully to exercise his rights of trade union membership and loyalty to support his union “The right of an individual member to criticize the policies of his union and his union officers does not include the right to undermine the union as an institution to destroy or weaken the union as a collective bargaining agency or to carry on slander or libel of any officer of the union”. This was what the appellants did in their letters earlier referred to at pages 46-47 paragraph 5 where it is stated, “there is nowhere delegated election is provided for. Delegate Election is by all means election by cabal. At page 50 of the record in REQUERY, paragraphs 4 and 5 of the letter dated 18/1/2007 are offensive and disparaging of the out-gone executive members. At page 62 of the record of appeal the appellant letter dated 6/3/2007 in paragraph 4 called the outgone executive as conducing kangaroo election.” The use of the words cabal and kangaroo are libelous of members of the out-gone executive. This offends against section 8 4(d)(iii) of the constitution of the union. My Lords, in the face of the above, I submit that sections of the union constitution have been breached by the appellants as the sections do not favour the appellants. I submit that the appellants who want equity have failed to do equity and in coming into equity they have come with dirty hands they have soiled their hands in dishonest toil they cannot have the favour of this court. The appellants are asking this Honourable Court to declared the election as invalid even in the face of their reprehensible conduct. Declaring their election as invalid will amount to giving to the appellants what they do not deserve. I urge this honorable Court to dismiss the appeal on this ground as lacking in merit and uphold the decision of the Industrial Arbitration Panel (IAP) which was well founded in law and on the facts. Section 5 of the constitution of the union at page 61 provides “sanctions for breaches of the constitution shall be fine, suspension form members, affiliations office etc”. The first Party/Appellants having breached the provision of the constitution have no right in participating in the election. GENERAL GUIDELINES from the National Executive Council came this guideline for the conduct of Delegate Election instead of MASS Elections which were very clear and unambiguous. Paragraph 7(c) of the Guidelines says, if membership is above 1000 the election should be by Electoral College comprising representatives drawn from sections and departments.” It is only the Election at MASS meeting that a General meeting will be called. The election 10/5/2007 was conducted by 1600 member which is lines with the guidelines. The Guideline was drawn up by Quadrennial Delegates conference along with the National Executive Council that sent copies to all states of the federation. This guideline can be found at page 147 of the record of appeal. At page 228 to 231 of the record of appeal there is an invitation for a meeting expended to 82 members drawn from Faculties/Departments/Divisions in line with section 7(c) of the 2007 Guidelines. See page 233 of the record of appeal. The letter headed NASU UPDATE dated 19/2/2007 speaks for itself (see paragraph 5) at pages 235-237 the report of the forum of Elders approved the guidelines. See paragraphs 235 at page 240 of the record of appeal circular letters were sent to all members informing them of the next General Election of discuss the election to enable NASU Headquarters address members. The meeting called for the purpose of explaining the Guidelines ended abruptly. This is contained in the appellant’s letter dated 26th March, 2007 (see page 70 of the record of appeal. The 1st Party/Appellants caused the abrupt ending of the meeting by their show of indiscipline. The appellants again exhibited their stubbornness and intolerance in trying to cast aspersions on the I.A.P. when they failed to patiently wait for its decision but instead wrote a letter dated 28th January, 2010 at page 242 of the record of appeal. The letter is headed: RE: PLEA FOR THE RELEASE OF THE DECISION TAKEN ON 10TH SPETEMBER, 2009 BY INDUSTRIAL ARBITRATION PANEL (IAP) ON MATTER OF INTRA-UNION TRADE DISPUTE WITHIN NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTUIONS (NASU) UNIVERSITY OF BENIN BRANCH. Paragraph 5 & 6 of that letter speaks for itself By this letter the 1st Party/Appellant were indicting IAP. In reaction of IAP to this letter, it has to send its weekly Hearing list to show the volume of work at the I.A.P see page 224 of the record of appeal. This shows the type of persons the appellants are. They were also agitated and suspicious of the I.A.P for no just cause. The I.A.P considered all the 6 issues before it very thoroughly before arriving at it decision in its award at page 270 of the record of appeal. The 6 issues argued are contained at pages 257 to 269 of the record of appeal. CONCLUSION The Respondent urges this Honourable Court to dismiss this appeal and uphold the decision of the Industrial Arbitration Panel I.A.P on the grounds that: (a) The Party/Appellants breached the relevant section of the constitution relied upon by all the parties. Page 11 Rule 3 of the constitution says that constitution is supreme. (b) All the steps taken by the NEC of NASU and the Uniben Branch in the conduct of the Delegate Election were fraud free and transparent. The onus is on the 1st Party/Appellants to prove that the union’s constitution was not complied with. This failed to do See DPP v. INEC [2009] 4 NWLR (Pt 1130) 92 at 96 — 97 rationes 5, 6 & 8. (c) The I.A.P thoroughly examined the 6 issues before it and arrived at unbiased Award. Aside from the case of DPP v INEC, supra, which the respondent’s counsel cited, no other authority was cited except for reference to ‘CONSTITUTION. Rules and Order of Business NON-ACADEMIC STAFF UNION OF EDUCATIONAL AND ASSOCIATED INSTITUTIONS (NASU)’ as a statute. Once again, we do not know how this document can qualify as a statute. A look at the written addresses of the parties reveals that while the appellants framed three issues or the determination of this court, the respondent framed only one issue. The bottom line of all the issues framed by the parties is that the appellants want the election held on 10th May 2007 cancelled given that they were suspended and expelled from the union and so could not participate in the election. On this issue, the IAP at pages 17 to 18 had held thus:- The appellants have averred that the excluded candidates were screened by the electoral committee before they were suspended. However they failed to establish and prove that all or any of the suspended members have satisfied all the conditions precedent stipulated for the election and certificate of eligibility to contest (if any) had been issued or awarded to such suspended member(s). Furthermore, the appellants did not address the Tribunal on why their wrongful exclusion from participating, alone, could be a reason that will legally warrant the annulment of the Election. The Tribunal is of the belief that the appellants have a duty to prove beyond merely the fact that they were illegally wrongfully suspended but also to the extent that such wrongful/illegal suspension which resulted into their wrongful exclusion from participating in the election is a valid ground for annulling the elections for being void ab initio More importantly also the appellants have a duty to prove that the excluded members have satisfied all the necessary condition precedent that will render them eligible to participate in the election by voting or being voted for. This duty is not proved by merely mentioning that fact or exhibiting nomination forms without exhibiting any certificate or clearance, certifying the eligibility of such candidate(s), far beyond just being a member but a person who has satisfied all the necessary conditions precedent to contest and election. Having failed to discharge their duty, the Tribunal [is] incapacitated from [giving] any award in their favour [in] that regard. From this holding of the IAP, it can be discerned that the IAP based its decision on proof i.e. the failure of the appellants to prove that they satisfied all the conditions that would entitle them to stand election in the first place; for if the conditions for election have not been met, the question of having the right to contest will not arise. The appellants in their objection to the IAP award had actually asserted that the IAP did not address this issue in their award. Not only is this not true, the appellants in their present brief of arguments did not show this court enough proof that they satisfied all the conditions for election. Other than simply referring the court to the nomination forms they filled and then asserting that they had satisfied all the conditions precedent for election, the appellants did not show this court any other proof that they satisfied the conditions needed to stand election. In fact, this court has not been even shown what the conditions precedents are for the election. A look, however, at paragraphs 11 to 16 of the General Guidelines for the Year 2007 Branch General Meeting/Election Taking Place Between February — July 2007 (what the parties and the IAP variously referred to as the 2007 Electoral Guidelines) will reveal these conditions — 1. Candidates who take up nomination forms must be each sponsored by two financial members of the union; 2. The nomination forms must be returned 14 days to the date of the election 3. Members who have not contributed financially (check-off dues) to the union for a period not less than 24 months consecutively shall not be eligible to contest election. 4. Only contestants screened and cleared by the National Secretariat are eligible to contest election; 5. Members who have served for two tenures in their current position are ineligible to contest election to that same position: and 6. Members suspended for anti-union activities as well as those expelled automatically forfeit the right to contest election. There was no attempt on the part of the appellant to show to this court that they are not found wanting in terms of all these conditions in other to qualify to stand for the election. The appellant have consequently failed to convince us on the need to upturn the holding of the IAP. The second and third issues raised by the appellants are actually related. They are a) whether the 2007 election as conducted by the respondent (University of Benin Branch) by Electoral College (delegates) system as opposed to at the General Meeting held on 20th March 2007 by majority members of the party has not made the election null and void; and by, whether the 2007 Electoral Guidelines issued by the General Secretary are binding on NASU Branches in view of paragraph 7(b) of the Code of Practice of the respondent on these issues, the IAP at pages 20 to 22 of its award held as follows — The crux of the controversy is that who is the relevant authority that has the power to decide on whether to go on mass election or delegate system? The contention of the [appellants have] been that it is the General Meeting of the branch that has power to take decision on the matter in which election should be conducted. Paragraph 7(b) and (c) of the guidelines are very clear on the issue. Paragraph 7(b) provides a general law (rule). The import of paragraph 7(b) is that the branches are at liberty to choose whether to go on mass election or Electoral College system. It will seem to be that the guideline favoured the Electoral College system even within the provision of paragraph 7(b) of the guidelines. Because the import of paragraph 7(b) is that election should be conducted through Electoral College system (delegate) in accordance with paragraph 7(a) but a branch which otherwise intends to conduct its branch election through mass election (general participation) must take [a] decision to that effect at a general meeting of the branch. Paragraph [7(c)] provides an exception to the application of paragraph 7(a). The section provides that where the membership of a branch is up to 1,000 the branch must conduct its election through the Electoral College system. This guideline is applicable to all branches, the [appellants] argued that University of Ibadan conducted its election through mass participation as against the Electoral College system which the [respondent] (University of Benin Branch) advocated for, even though University of Ibadan has more than l,000 (one thousand) members. This is not enough reason why another branch must act the same way by contravening the guidelines issued by the National Headquarter of the [respondent]. The Tribunal [holds] that the [respondent] (University of Benin branch) is preclude by paragraph 7(c) of the 2007 election guidelines from conducting its election through mass election genera participation). The guidelines made it mandatory for the [respondent] University of Benin branch) to conduct election of its branch Executives through the Electoral College system. In view of the forgoing the Tribunal holds that the respondents NASU (University of Benin branch) was right to [hold] election of its branch Executive through Electoral College system. The argument of the appellants regarding these issues is twofold: that the 2007 Election Guidelines issued by the General Secretary is not binding on the branches; and the 2007 election should not have been by way of the Electoral College (delegates) system. Rule 4(8) of the NASU constitution is pretty clear that the general policy of the union shall, subject to the Delegates Conference, be determined by the National Executive Council; and the General Secretary, the only full-time officer of the union, is a member of this body. There is no doubt, therefore, as to the power of the National Executive Council through the General Secretary to issue the 2007 Election Guidelines as the appellants would want to contest. We, therefore, agree with the IAP that the 2007 Election Guidelines are valid and so binding on all branches. Since the 2007 Election Guidelines are valid and binding, should the 2007 elections have been by way of Electoral College (delegates) system? The appellants do not think so. Paragraph 7(a), (b) and (c) of the 2007 Election Guidelines is the relevant provision for resolving this issue. The said paragraph provides as follows — (a) Representation at Quadrennial General Meeting shall be either MASS or representative capacity of sections/departments as below: 50 members — 2 delegates 51— 100 — 3 delegates 101 — 150 — 5 delegates 151 and above — 7 delegates (b) In the case of Election at MASS meeting, decision to hold election at MASS meeting shall be taken by the General Secretary within two weeks of such decision by the branch. (c) Branches with membership above 1,000 must conduct their election through the Electoral College comprising representatives drawn from sections and departments. The appellant relied heavily on paragraph 7(b) almost to the exclusion of 7(c). The only reference to paragraph 7(c) is the argument of the appellants that University of Ibadan despite being more that 1,000 did not use the Electoral College (delegates) system. This line of argument is flawed. A party claiming must build its case on its right, not the right of another or the weakness of another. Paragraph 7(c) is imperative in its application. In fact, the word must’ is even underlined to stress the imperativeness of the sub-paragraph. Being this imperative, it overrides sub-paragraphs (a) and (b). This means that all branches that have membership above 1,000 must conduct their elections through the Electoral College. The fact that University of Ibadan with more than 1,000 members conducted theirs by a system other than the Electoral College is not enough reason for the appellant’s t argue that University of Benin must do likewise. University of Ibadan acted in error. This court cannot sanction the same error for University of Benin as the appellants would want us to do. Once again we agree with the IAP and so hold that the respondent, NASU (University of Benin branch) was right to hold election of its branch Executive through the Electoral College system. For all the reasons given, we hold that this appeal lacks merit and is hereby dismissed. The award of the IAP in its entirely is consequently. We make no order as to cost. Hon. Justice B. B. Kanyip Presiding Judge, Hon. Justice F. A. Obaseki-Osaghae Judge, Hon. Justice F. T. Agbadu-Fishim Judge