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NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo President Hon. Justice B.B. Kanyip Judge Hon. Justice M.B. Dadda Judge DATE: 14th May, 2008 SUIT NO. NIC/33/2007 BETWEEN Road Transport Employers Association of Nigeria………………………….Claimant/Applicant (RTEAN) Osogbo, Osun State AND National Union of Road Transport Workers…………………………………………Respondent (NURTW) Osogbo, Osun State REPRESENTATION Edmund Z. Biriomoni, for the Applicant Kayode Adeleke, for the Respondent RULING The claimant, by way or an originating summons dated and tiled on 17th July 2007, is seeking for the determination of the following questions- I. Whether in view of the Court of Appeal judgment of The State v. Government of Osun State and ors, ex parte RTEAN unreported Suit No. CA/l/l61/98 which judgment was delivered on the 11th of December 2006, the claimant is an Employers' union recognized by law and free to operate from public motor parks in Osun State. 2. Whether the respondent has the right and or authority to disallow the full operation of the claimant in all motor parks and designated loading points in Osun State. 3. Whether the respondent has the power whatsoever to decide on the loading ratio of 5 to 1 in their favour in all motor parks and loading points in Osun State. In consequence, the claimant is seeking for the following reliefs- 1. Declaration that the respondent by itself, servants or agents have no power whatsoever to decide the loading ratio in all motor parks and designated loading points in Osun State. 2. Declaration that the actions of the respondent in deciding the loading ratio of 5 to 1 in all motor parks and designated loading points in Osun State is null and void. 3. Declaration that the claimant has full rights with the respondent to operate freely in all motor parks and designated loading points in Osun State. 4. Declaration that the claimant is a registered and recognized trade union in the transportation industry in the state. 5. Declaration that the claimant is a duly registered trade union by virtue of the Federal Republic of Nigeria Official Gazette No. I, Vol. 86, 1999 at page A8. 6. Declaration that the claimant should not be prevented from operating freely at all the Local Government owned motor parks and designated loading points in Osun State. 7. An order of perpetual injunction directing the respondent to forthwith desist from interfering with the operation or the claimant as a transport union in all motor parks and designated loading points in Osun State. 8. An order directing the respondent from entering into any communications with the Osun State or any other person(s) which communication is calculated to bring the claimant into scorn or it to be regarded as an unregistered transport union. 9. An order directing the respondent from referring to the claimant as an interloper. 10. An order or perpetual injunction restraining the respondent from deciding the loading ratio or activities of the claimant in all motor parks and designated loading points in Osun State. 11. An order directing both the claimant and the respondent to maintain a loading ratio of 1 to 1 in all motor parks and designated loading points in Osun State. 12. An order of perpetual injunction restraining the respondent from further interfering with the operation and activities of the claimant in all motor parks and designated loading points in Osun State. Accompanying the originating summons is a 13-paragraphed affidavit sworn to by Hon. Oladirneji Salami, the Secretary of the claimant with four exhibits (Exhibits A -- D) attached. The originating summons was followed by an ex parte motion and a motion on notice both tiled on 18th July 2007 and brought pursuant to Rule 15 of the now repealed National Industrial Court (NIC) Rules Cap. 432 LFN 1999 with supporting affidavits. In these two motions, the claimant is seeking for the following orders - 1. An order of interlocutory injunction restraining the respondent, its privies, agents and servants from interfering with the lawful operation and activities of the claimant in all motor parks and designated loading points in Osun State pending the determination of the substantive suit. 2. An order directing both the claimant and the respondent to maintain a loading ratio of 1 to 1 in all motor parks and designated loading points in Osun State pending the determination of the substantive suit. 3. Any order(s) as this court may deem fit to make in the circumstance. The court declined to grant the ex parte orders and instead asked that the respondent be put on notice. This was done whereupon the respondent entered a conditional appearance and then filed a notice of preliminary objection on 29th August 2007 challenging the competence of the claimant's action and the jurisdiction of this court to entertain same. The preliminary objection is predicated on the following grounds- 1. That the case is' incompetent for non-joinder of necessary parties without whom the issues therein cannot be effectively and effectually determined. 2. That there is no cause of action or reasonable cause of action against the respondent. 3. The claimant's suit is statute barred. 4. The main facts of the case are likely to be disputed and contended, hence the originating summons employed in commencing this case is inappropriate and, therefore, incompetent. 5. The claimant has no locus standi to institute this action. 6. The court lacks the jurisdiction to entertain the claimant's suit and the motion on notice. 7. The claimant's suit is an abuse of court process. At the hearing of the preliminary objection, the parties commenced oral arguments but this was later jettisoned at the instance of the court and the parties were asked to file written briefs of argument. The respondent filed its written address on 27 November 2007, while the claimant filed its reply brief on 30th November 2007. On 29th January 2008, the respondent filed its reply on points of law after seeking the leave of court to file I out of time. Both parties then adopted their respective written briefs of argument. I The respondent commenced arguments on its preliminary objection by giving brief' background facts of the case. To the respondent then, in 1995, the claimant instituted an action against the Governor of Osun State, the Attorney General of Osun State and the NURTW (joined by order of court) in respect of the use and control of designated motor parks in Osun State and asking for the judicial review of the decision of Osun State Government, which decision recognized only the NURTW as the transport union to operate in motor parks in Osun State. That while the motion on notice for judicial review was pending, the Trade Unions Amendment Decree No 4 of 1996 was promulgated having as its commencement date 5th January 1996. That the suit was argued for and on behalf of the present respondent and Osun State Government to the effect that the Decree had the effect of legislating out the present claimant. This contention was upheld by the trial judge of the Osun State High Court. However, that the decision was reversed by the Court of Appeal in Appeal No. CA/I/16/98 where the Court of Appeal held that a repealing statute cannot by implication repeal an existing law, it has to be express. That the Court of Appeal, however, in its hallowed decision on 11th December remitted the case back to the Osun State High Court to be tried before another Judge. To the respondent, the present claimant in this suit in violation of the order of the Court of Appeal has taken out a fresh action by way of originating summons asking for the reliefs contained in the originating summons. That the claimant also filed a motion on notice asking for injunctions to restrain the respondent from interfering with operations of the claimant in all motor parks and designated loading points in Osun State and an order of the court directing both the claimant and the respondent to maintain a 1 to 1 loading ratio. Regarding the issue of the failure of the claimant to join the necessary parties, the respondent started by referring the court to Agbakoba v. lkpeazu [2005] All FWLR (Pt. 269) at 2061 A - B where necessary party was defined as those who are not only interested in the subject matter of the proceeding but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question, which cannot be properly settled unless the said necessary parties are made parties to the action. That the issue of control, creation, maintenance and operation of motor parks/designated loading points in Osun State is by law conferred on Local Governments in Osun State, referring the court to section 7(5) and paragraph lee) of the Fourth Schedule to the 1999 Constitution and Osun State of Nigeria Gazette No. 1 of 1996 with particular reference to Irewolede Local Government, Osogbo Local Government; sections 4 and 5 of their respective bye-laws, copies of which relevant pages were attached and marked Annexure A). To the respondent, the issue of control and operation of motor parks in Osun State cannot be effectively determined behind the party who has been constitutionally or statutorily empowered to do so. That failure to join the Osun State Government/Local Governments in Osun State is fatal and not a mere irregularity. That the claimant itself made reference to Osun State Law in their affidavit in support of the originating summons, referring the court to paragraph 8 of the said affidavit in support of the originating summons. The respondent then referred the court to the case of Awoniyi v. AMORC [2000] 6 SCNJ 141 - 171 Ratios l and 3 on the effect of failure to join necessary party, which effect is that the suit is incompetent. Regarding (the issue that the present action is statute barred, the respondent argued that the present suit is a fresh action brought by originating summons. That it is not an interlocutory application but a fresh action seeking to redness an alleged wrong, which according to the claimant arose as far back as 1995, referring the court to paragraph 5 of the affidavit in support of the originating summons. The respondent then urged the court to note that the present action was filed in July 2007, referring the court to the limitation law of Osun State of Nigeria 2003 section l8 of which provides that no action founded on contract, [art or any other action not specifically provided fur in Parts 2 and 3 of this law shall be brought after the expiration of five years from the date on which the cause of action accrued, copies of which relevant pages were attached and marked Annexure B1. To the respondent, since the cause of action arose in 1995 and this action was filed in 2007, a period of twelve (12) years has elapsed after the cause of action arose, thus clearly bringing this case outside the period allowed by the limitation law. In consequence, that this case is patently statute-barred and should be dismissed, referring the court to the case of N.P.A. v. Lotus Plastic Ltd and anor [2005] 12 SCM 304 Ratio 2. On the third issue regarding the jurisdiction of the court, the respondent argued that the responsibility of creating, maintenance, control and operation of motor parks/designated loading prints in Osun State are vested in the Local Government of Osun State, a role which the 1999 Constitution has specifically under section 7(5) and the Fourth Schedule given to another arm of government i.e. an administrative body. The respondent then submitted that the adjudicative role of the court has not arisen until the body saddled with the responsibility has done it one way or the other. Alternatively, that if a party saddled with a responsibility to do certain things fails to do so, then there are procedures to compel the doing of such things. That it is not for the court to take over the role assigned to another arm of government, referring to the case or AGF v. Atiku Abubukar [2007] 6 SCM at 134 where the Supreme Court opined that such would translate to naked usurpation of the function of anther arm of government under the thin guise or judicial interpretation. The respondent went on to submit that it is the Local Government vested with the responsibility of creation, maintenance, control and operation of motor parks/designated loading points that will decide on the loading ratio among all motor park users and not the court. That motor park users may not even be limited to NURTW and RTEAN because any other group or person may register with the Local Government in Osun State and meet the requirements of the Local Government for leave to operate in motor parks. To the respondent, there is a presumption that words in a statute or Constitution are not mere surplusage or tautology. That the Constitution is to be interpreted and applied, referring the court to A.G. Abia v. AGF [2003] FWLR (Pt. 152) 32 at 201. That the language of the Constitution is that "the Local Government shall..." That what the claimant is asking the court to now do is to ignore what the Constitution says and instead perform the functions of the Local Government as spelt out above. That the court should not be misguided or allow itself to be misguided by the way and manner the claimant has couched the issues for determination, which they have surreptitiously done in other to confer jurisdiction on this court. That the law is that jurisdiction cannot be conferred by parties where none exists, referring to the case of MGF Nig. Ltd v. Gwus Int. Co Ltd [2001) 9 NWLR (Pt. 718) 431. That nobody is challenging the [act that ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA (RTEAN) is a registered trade union - this having been decided upon by the Court of Appeal and cannot be a matter for reconsideration by this court. On the issue of no cause of action, the respondent argued that it had earlier submitted that the issue whether or not RTEAN is a registered trade union had been laid to rest by the Court of Appeal and cannot be a subject of reconsideration by this court, To the respondent then, the issue of creation, control, management and operation of motor parks/designated loading points borders on public utility built by the Local Government as spelt in Osun State the function or which has been given to the Local Government to perform. Also that by the affidavit evidence adduced by the claimant, it is crystal clear that this issue was litigated upon by the same parties before the Osun State High Court which led the appeal in Appeal No CA/1/161/98, referring to Exhibit B attached to the claimant's affidavit in support of the originating summons. To the respondent, by Exhibit B, the Court of Appeal ruled that the matter be remitted back to the High Court of Osun State for proper adjudication, which judgment has not been appealed against by any of the parties. That instead of complying with the decision of the Court of Appeal, the claimant has now filed this fresh suit in violation 0 f the decision of the Court of Appeal. In consequence, that the present suit is asking this court to review the decision of the Court of Appeal. That it is trite that an order of court, even when made per incuriam is binding, on parties and all courts until set aside by the court itself or by a higher court. Regarding the issue of the absence of locus standi, the respondent submitted that motor parks in Osun State are public utilities built and controlled by the Local Governments of Osun State and the control of which is an administrative matter under the Local Government laws and the Constitution. That the claimant is a private organization, society or association. That before a private person could have a standi to question or protest against the use of or manner of use of a public utility, the private person has to show or establish that it has suffered or is suffering more damage over and above other members of the public. Otherwise, it is the Attorney General that can complain on behalf of the public for such public right such as loading at motor park, etc. To the respondent, this is certainly not a private right; it is a public right for any member of the public who satisfies the Local Government. The respondent went further to submit that since the control has been constitutionally given to the Local Government, unless and until the power of control and use of motor parks have been delegated to any of the parties before the court, the powers still lie with the Local Governments or Osun State, referring the court to Falomo V. Kitchener [2005] ALL FW LR 2C4, 397 at 425 C - E and E - N Ratios 17 and 18. On the issue of abuse of court processes, the respondent argued that there already exist a subsisting judgment of the Court of Appeal which is binding upon all parties and even this court. That the previous suit is still pending at the High Court because the order of the Court of Appeal is for retrial, not for dismissal or striking out. For good or bad, that the case has to be pursued to its logical conclusion. To the respondent, since the case is still pending, it amounts to gross abuse of process for the claimant to commence another action, referring the court to the case of Akpan v. Julius Berger Nig. Plc [2003] F.W.L.R (Pt. 182) 1827. Finally, the respondent submitted that parties as stated in the summons are not juristic personalities in that "ROAD TRANSPORT EMPLOYERS ASSOCIATION Of NIGERIA (RTEAN) OSOGBO OSUN STATE and NATIONAL UNION OF ROAD TRANSPORT WORKERS (NURTW) OSOGBO, OSUN STATE though recognized as trade unions are to sue as ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA and NATIONAL UNION OF ROAD TRANSPOSRT WORKERS (NURTW) or their Trustees respectively". That this is a material error in the names of the parties and it is fatal, the discrepancy of which renders the originating summons void and not a mere irregularity, referring the court to the case of Esenovo V. Ukpong [1999] 4 N W LR (Pt. 608) 611 at 617. The claimant reacted to the submissions of the respondent. On the issue of non joinder of necessary parties, the claimant contended that the court must be satisfied that a person who 'must be joined as a necessary party is one whose joinder as a party is vital for the purpose of adjudicating effectually and completely upon the matter in dispute and it is just and convenient to join him, referring the court to Adefarasin v. Dayekh [2007] 11 NWLR. (Pt. 1044) 94 Ratio 5. To the claimant, the issue in contention is per its originating summons. That the issue formulated by the respondent does not form part of the claimant's claim, as the constitutional powers as enshrined in the Fourth Schedule 1 (e) of the 1999 Constitution is not in contention on, and as such the .Local Governments in Osun State cannot be a necessary party. That the issues in contention arose as a result of a communiqué dated the 26th of March, 2007 which the respondent issued to the claimant, referring the court to paragraph 11 of the originating summons. That the issues in contention can be effectively determined without joining the Local Government in Osun State as party, since the issue in contention is not the constitutional powers of the Local Governments in Osun State. To the claimant, in determining whether to join a person as a party to an action, the test to apply is whether the person to be joined will have his interest irreparably prejudiced if he is not joined in the action, referring the court to Yakubu v. Gov. of Kogi State [1995] 8 NWLR (Pt. 414)386. The claimant then submitted that the interest of the respondent would not be prejudiced given that the issue in contention has to do with the illegal decision of the respondent to decide the loading ratio of both transport trade unions in Osun State. That a person should not be joined as a defendant against whom there is no claim by the claimant Aromire v. Awoyemi [1972] 2 SC 6 at 121B. On the issue of no cause for action, the claimant argued that a cause of action is a fact or set of facts that gives a person the right to judicial relief. That it consists of every fact which would be necessary for the plaintiff to prove, if traverse in other to support his right to judgment, referring the court to Asaboro v. Pan Ocean Oil (Nig.) Ltd [2006] 601 Ratio 8. That in order to discover whether a cause of action is disclosed, the court must limit itself to the claimant’s originating summons; no resort whatsoever must be made to the statement of defense. To the claimant, it is not asking the court to reconsider, review or retry the decisions of the Court of Appeal. The issue in contention is not on the question of creation, management and operation of the motor parks/designated loading pints, but powers of the respondent to decide the loading ratio of 5 to 1 aggregate in favor of the respondent. That a cause of action in a case is usually determined by looking at the circumstances in the given case. That it differs from case to case, and is deduced from the facts of the case creating or giving rise to a right to judicial relief, referring the court to Ejimofor v. NITEL [2007] 1 NWLR (Pt. 1014) 160 Ratios 10 and 11. The claimant then submitted that it has shown reasonable cause of action, which arose in March, 2007. On then issue of absence of locus standi, the claimant contended that term locus standi has been defined as a place of standing in court, the right of appearance in a court of justice or before a legislative body, on a given question. That the term denotes legal capacity to institute proceedings in a court of law and it is used interchangeably wit terms like standing or title to sue. That in determining the issue of locus standi the court must constantly bear in mind that’s its judicial powers is being invoked and the powers in which the judicial power can be exercised are by the provision of section 6(6) of the 1999 constitution of Nigeria. That to possess locus standi, a party must disclose a benefit or an interest. That a party prosecuting an action would have locus standi where then reliefs claimed would confer some benefit on such party, referring the court to Ikeja hotel Plc v. LSBIR [2006] 6 WRN 89-91 Ratios 7 and 8. The claimant continued that in ascertaining whether a claimant in an action has locus standi, his statement of claim must disclose a cause of action vested in the claimant. In other words, that the averments must disclose that the claimant has sufficient legal interest in seeking relief in court, that is, he has suffered a wrong or threat to his civil right and obligation for which redress can only be sought in court, and it does not matter that his action may not succeed. That in order to determine the locus standi of a plaintiff in an action, the court will only look at the statement of claim filed by the plaintiff. That it is the statement of claim that exclusively determines the locus standi. The claimant then submitted that it has the locus standi to institute the action, it being a duly registered transport trade union. To the claimant the contention is not on the constitutional powers of the Local Governments in Osun State as contained in the 1999 Constitution, but the illegal action or the respondent to decide the loading ratio. That there is no nexus between the claimant's claim and tJ1C constitutional powers of the Local Governments in Osun State being asserted by the respondent. That the issue in contention has to do with the loading ratio and is not to protest against the use of or manner of use of a public utility. That the claimant is also not disputing or usurping the powers of the Attorney General of Osun State. The claimant then submitted that the constitutional power or the Local Governments in Osun State to control the use of motor parks is not in contention. That the respondent should not hide under the cloak of the constitutional powers of the Local Government in Osun State as this is not in contention. The claimant concluded by asking the court to hold in its favour in that the issue in contention is not the creation, maintenance and control of motor parks, all this being the constitutional powers of the Local Governments in Osun State, but the loading ratio between it and the respondent, both being transport trade unions operating in Osun State; and that the claimant has the locus standi to institute this matter. On the issue of jurisdiction, the claimant contended that the question of jurisdictional limit of a court is one of law, which is clearly defined and requires no variation or interpretation. To the respondent - The issue before this court arose from a dispute in loading ratio between two trade unions - the claimant and the respondent. Trade union dispute which limits of jurisdiction or the National Industrial Court is clearly defined and requires no variation or interpretation. It is subject to no other interpretation nor varying facts. Gbagbarigha v. George [2005] I NWLR (Pt. 953) 53 at 170 A, Nteoguile v. Otto [200l] 16 NWLR (Pt.738) 186A The claimant then continued that by virtue of section 1A of the Trade Disputes Act (TDA) as inserted by the Trade Disputes (Amendment) Decree No. 47 of 1992, no person shall subject to section 20(3) of the Act commence an action, the subject matter of a trade dispute or any inter or intra union dispute in a court of law and accordingly any action, which prior to the commencement of the section, is pending in any court shall abate and be null and void. Moreover, that any interim order, judgment, or decision made by any court other than the NIC in respect of any trade dispute, inter or intra union dispute prior to the commencement of the section shall cease to have effect, referring tile court to section 11 of the NIC Act 2006. The claimant, the provisions of section 1A of the TDA and subsequent amendment thereto, and section 11 of the NIC Act 2006 are meant to oust the jurisdiction of any other Court in Nigeria and to confer such exclusive power and jurisdiction on the NIC. Therefore, that no other court can entertain a claim under the Act, referring the court to NURTW v. RTEAN [2001] 14 NWLR (Pt. 733) 326 paras. F – H and Skenconsult (Nig) Ltd v. Ukey [1981] 1 SC 6 at 329 paras. B - C. That any inter or intra-union dispute is a trade dispute and is triable only by the NIC. That the claims of the claimant fall squarely and clearly on matters that can be considered as inter-union dispute involving, or between, two unions. That where exclusive jurisdiction has been granted to a particular court, no other court, not even the highest court, can lawfully exercise jurisdiction on such matters. To the claimant, the import of the Trade Disputes (Amendment) Act No. 47 of 1992 and section 11 of the NIC Act 2006 shall only apply to oust the jurisdiction of the regular court of the claims which constitute a trade dispute. That if that is the case only the NIC has the exclusive jurisdiction to hear such matters, referring the court to Gabriel Madukolu v. Johnson Nkemdili [1962] 2 SCNLR 341; [1962] 1 ALL NLR (Pt. 4) 587 at 594. That the aim of the Trade Disputes (Amendment) Decree No. 47 of 1992 and section 11 of the NIC Act 2006 is to prevent the proliferation of trade union cases in several High Courts and to ensure their litigation in the NIC. That the provision of section 7(1)(a) of the NIC Act 2006 confers exclusive jurisdiction on the NIC in respect of civil causes and matters relating to trade unions. That the matter with which this court has been conferred jurisdiction is based upon the above mentioned section. That the parties are both duly registered trade unions under the Trade Unions Act (TUA) Cap. 437 LFN 1990. That the dispute between them borders on loading ratio, free operation of the claimant as a trade union and the respondent refraining from referring to the claimant as interloper. The claimant concluded by urging the court to rule that it has the jurisdiction to entertain the matter. Regarding the issue that the action is statute-barred, the claimant reiterated that the duration or right or cause of action which is confirmed on all injured party is necessarily limited and does not last till eternity; it lapses after the date the statute of limitation proclaims that no such legal action or proceeding may lawfully be taken or commanded by an injured party. To the claimant, ‘it is therefore necessary when dealing with statute of limitation to determine firstly the premises date the cause of action accrued because time will start to run from the moment the cause of action arose', referring the court to 'Eboigbe v. NNPC [1994] 5 NWCR (Pt. 415) 649 p. 415 Para. F - H' (we could not locate the citation of this case). That the period of limitation is determined by looking at the writ 01' summons and the statement of claims only, to ascertain the alleged date the wrong in question which gave rise to the plaintiff's cause of action was committed and by comparing such date with the date on which the writ of summons was tiled. That if the time pleaded in the writ of summons or statement of claims in beyond the period allowed by the limitation law, the action is statute barred. What needs to be emphasized is that the determining factor is the averment is the plaintiff's writ of summons and statement of claims, referring the court to Woherem v. Emereuwa [2004] 13 NWLR (Pt. 890) 403 Ratio 2. To the claimant, the cause of action in this case arose in 26th March 2007 as a result of the loading ratio. That the respondent is only trying to be misleading. That the Court of Appeal judgment couldn't have been appealed against by the claimant since the judgment was in its favour. That all that the claimant is asking for this court to do is to interpret the judgment in the light of the flagrant disobedience of their communiqué dated 26th March, 2007 which same was served on tile claimant on the same date. To the claimant, the issue before this court is not the same issue that was canvassed in the High Court of Osun State. That although this is a fresh suit, it is different from the suit filed in the High Court of Osun State. That the claimant is not asking the court to review the decision of the Court of Appeal since same is in the claimant's favour. That the submission of the respondent is, therefore, irrelevant; and so the respondent should limit its argument within the pleadings of the claimant. The claimant continued that a cause or action is the entire set of circumstances giving rise to enforceable claim, it is in effect the tact or combination of facts which gives rise to a right to Sue and it consists of two elements- (a) The wrongful act of the defendant which gives the claimant 'his cane of complaints' and (b) The consequent damage. That in order to find a defendant liable in civil proceedings, the claimant must prove the legal conduct or the defendant has done some way to the claimant, a wrong which justifies a relief in law, In other words, there must be a legal nexus between the claim will find the defendant liable', referring to Rinco Const. Co. v. Veepee Ind. Ltd [2005] 9 NWLR (Pt. 929) 87 Ratio l. On the issue of abuse of court process, the claimant staled that abuse of process is a term generally applied to a proceeding which is wanting in bona fide, where it is frivolous, vexatious and oppressive, That it also means the improper use of the legal process, referring to 'Okafor v. AU, Anambra State [1991] 6 NWLR (Pt.. 2000) 659, TUP Bottling Co. v. Abiola & Sons [1996] 7 NWLR (Pt. 463) 714 p. 526 Panas. D - E (once again we note the poor citations here). To the claimant, 'a matter can only amount to abuse of court process where two suits are pending between the same parties and arise out of same subject matter and are actions in which common questions of law and facts arise or the alleged right to relief are in respect of or arise out of the same transaction or series of transactions the suit filed later in time would be vexatious arid constitute an abuse of process', To the claimant, the parties and issue in the suit in the High Court of Osun State are entirely different from the present one before this court. That the parties in the suit in High Court, Osun State are The Governor of Osun State and Attorney General, Osun State. That the defendant filed an application to be joined as an interested party, which application for joinder was granted. That the issue before the High Court of Osun State was in respect of the use and control of designated motor parks. That the parties before this court are different from the parties in the above mentioned case, which squarely means, it is 'an Inter Trade Union dispute' which only this court can entertain. That the issue in contention before this court is not in respect of the use and control of designated parks, but on loading ratio which is entirely different from the issue or subject matter canvassed at the High Court of Osun State. The claimant then submitted that the pending suit in the High Court of State is entirely different from this one before this court. The claimant then urged the court 'to hold ill favour of the claimant, that two different issues were raise contemporaneously in two different courts, which is described and clearly in the interest of justice that these matters should be heard in two different courts. Finally, they raised the issue of the parties as material error in the names and not a mere irregularity. To the claimant, the term irregularity in respect of procedures is most often construe by the court to denote some not being fundamentally tainting or besmirching a proceeding as to render it invalid or a nullity. Id est., it is curable’, referring to Duke v. Akpabuyo Local Govt. [2005] 25 NSCQR 411 per Pats Acholonu, JSC. That ‘the material error in the names the defendants is referring to is the inclusion of Osogbo, Osun State of the parties which in all intent and purpose is to give proper identification of the branch which they belong’. To the claimant, 'over reliance on technical slip or mistake should not play a part in seeking the face and character of humanness and is in accord with ethics. By this, the law is fashioned out to do what is conceived to be, i.e. to give people their due recompense or reward for which the court is called upon to do in its adjudicatory process, and not resort to process that might give the wrong message of being neither egalitarian nor comprehensively' referring to Duke v. Akpabuyo Local Govt.,supra, at p.404 Ratio 4 per Nnaemeka Agu, JSC. That according to Pats Acholonu, JSC in Duke v. Akpabuyo Local govt., supra- As we have stated several times, the days where parties could pick their way in this court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into limbo or forgotten things .... In reacting on points of law, the respondent maintained its position as follows- 1. That the claimant failed to join the relevant and necessary parties. Relief 3, 6, 7, 10, 11 and 12 in the claimant's originating summons cannot be completely and effectively determined in the absence of the Local Governments of Osun State because they touch the control, operation and management of motor parks. 2. The claimant has not disclosed any reasonable cause of action in this case. The submission of the claimant’s counsel that the issue in controversy does not border on control and management of motor parks is not true as reliefs 1, '2, 3, 6, 7, 10, 11 and 12 of the originating summons touch on the operation, control and management of motor parks in Osun State. 3. The claimant has no locus standi to instate this case. 4. The cause of action, if any is statute barred. There is no paragraph in the affidavit where the claimant referred to 261h of March 2007 as the date on which the cause of action arose. On the contrary what is deposed to in paragraph 5 of the affidavit in support of the originating summons is that the dispute arose in 1995 which is clearly statute-barred. The submission of counsel that the cause of action arose in 2007 cannot amount to evidence as it is a trite law that submission of counsel no matter how brilliant cannot amount to evidence, referring to Cross River State Water Board v. Nugen Consulting Engineering Limited &. ors [2006] 13 NWLR (Pt. 998) 589 at 609G. 5. The court lacks jurisdiction to entertain this case. 6. The case is an abuse of court processes. The parties as stated in the summons are not juristic persons; they are not registered trade unions i.e. (i) Road Transport Employers Association of Nigeria, Osogbo, Osun State and (2) National Union of Transport Workers (NURTW) Osogbo Osun State. It is further submitted that the defects in the names of the parties are incurably bad and not mere technicalities that the court can overlook. The defects cannot be corrected by way of amendment, referring to the cases or Emeka Akas v. Manager & Receiver of Estate of Anwadike [2001] FWLR (Pt. 71) 1714 at 1726, Iyke Medical merchandise v. Pfizer Incorporated & anor [2001] 5 SCN.J 12 at 27 and Fawehinmi v. NBA (No.2) [1989] 2 NWLR (Pt. 105) 558 at 640. After a careful consideration of the processes and written submissions of the parties we must first remark on the poor quality of the written submission of especially the claimant, which was laced with poor citation of cases and poor grammatical expressions and tenses. by this act, the claimant invariably turned the court to a proofreader of its work. While we corrected a good deal of the errors, we, however took the liberty to reproduce some in this ruling.. They can be seen reflected in quotation marks. We must dismiss outrightly the argument of the respondent that the parties before the court are wrong. This court has held time without number that branch unions or unit chapters of unions have the right of audience in this court. See Senior Staff Association of Nigeria Universities v. Federal Government of Nigeria, unreported Suit No. NIC/8/2004 decided on May 8, 2007 and Oyo State Government v. Alhaji Bashir Apapa and ors, unreported Suit No. NIC/36/2007 delivered on October 3, 2007. The peculiarity of the disputes that are addressed in this court make this imperative. It is foolhardy to expect that parent unions will at all times be made parties to a dispute when they are not in any way concerned with it. Branch unions or unit chapters negotiate with employers independent of the parent unions and so we do not see why they should not sue independently of the parent union if the need arises. The law reports are replete with cases where branch unions sued even before the regular courts and they were heard. See, for instance, the Court of Appeal decision in Attorney-General of Oyo State v. Nigeria Labour Congress, Oyo State Chapter [2003] 8 NWLR 1 where the Oyo State chapter of the Nigeria Labour Congress (NLC) was entertained as such. The argument of the respondent in this regard must, therefore, fail. The respondent had argued that the proper parties are not before the court. To the respondent, since the issue at stake has to do with the control and operation of motor parks in Osun State, the Osun State Government as well as the Local Governments in the State particularly Irewolede and Oshogbo Local Governments ought to have been made parties to the action. To say the least, this is begging the question. By this argument, the respondent seems to be saying that each time a law is promulgated and individuals have a complaint in respect of the rights emanating from the law, then the Government that passed the law must be made a party to the action. This cannot be a true statement of principle. Even if the constitutionality of a statute is challenged, if the rights involved relate to individuals, that challenge could be resolved without having to make the Government a party to the action. We have gone through the processes in this matter. The main issue at stake is the loading ratio at motor parks between the claimant und tile respondent as trade unions. This issue has nothing to with the control and operation of the motor parks as the respondent argues. In this wise then, the argument of the respondent that the claimant has acted contrary to the Court of Appeal decision in Appeal No. CA/1/161/98 goes to no issue as the issue which the Court of Appeal directed should be assigned to another judge of the High Court of Osun State is different from the present one. The present dispute is simply the dispute as to the operations of two trade unions in the transport industry for which this court has jurisdiction to entertain under section 7( 1 )(a)(i) of the National industrial Court (NIC) Act 2006. In any event, no where ill the processes before this court is it brought to the attention of this court that there is actually a pending action before the High Court of Osogbo State as directed by the Court of Appeal. And even if there were to be one, by section 11 of the NIC Act 2006, it ought to have abated by now. The present matter before this court, therefore, cannot be said to be an abuse of court process as the respondent argues. What all this means then is that the claimant has disclosed a cause of action worthy of the intervention of this court. Given that the parties are trade unions in the transport industry, and the matter in dispute relates to the loading ratio at motor parks in respect of the two unions, the claimant has shown sufficient locus standi to warrant the filing of this suit. The respondent argued that the issue at hand is statute-barred citing section 18 of the Limitation law of Osun State. This section 18 comes under Part 4 of the said limitation Law which deals with 'contract, tort and other actions'. The other provisions in Part 4 which are sections 19-22 then go on to deal with claims for damages in negligence, nuisance, breach of duty (whether the duty exists by virtue of a contract or a statutory enactment), fatal accident or conversion and extinction of title in chattels, The point being made here is that Part 4 deals with issues relating to contract and tort and matters incidental thereto. The matter presently before this court does not fall within the rubric of contract or tort and so cannot be covered by the Limitation Law of Osun State as the respondent argues. We do not, therefore, agree with the respondent that the matter at hand is statute-barred. In consequence, the argument of the respondent in that regards must fail. We earlier held that the matter in dispute relates to the loading ratio at motor parks between the two unions, the claimant and the respondent. This dispute is a dispute between two trade unions. The Second Schedule to the Trade Unions Act (TUA) Cap, 437 LFN 1990 lists the matters that must be provided for in the Rules Books of trade unions. Item 2 of the said Schedule, for instance, provides that the Rules Book of trade unions must make provision for 'the whole of the purposes of the trade union, and the purposes for which its funds may be applied’. A look at the constitution of the claimant, which is attach as Exhibit E to the further affidavit in support of its motion on notice, shows that in the aims and objects of the union, Article 4(e) enjoins the claimant ‘to organize and maintain peaceful and orderly loading of vehicles by way of first come, first serve at the motor parks and to ensure that this exercise is carried out without prejudice by responsible staff of the association who would especially assign to each route the vehicles ply. Such staff should always bear the identity of the Association’. Since loading is central to the union activities of the claimant, any dispute in that regard would qualify as one that can be entertained by this court under section 7 of the NIC Act. In this regard, it is our belief that this court has jurisdiction to entertain the matter before it. For all the reasons enunciated in this ruling, the respondent’s preliminary objection must fail. The matter shall proceed to hearing. Ruling is entered accordingly. ……………………………. Hon. Justice B. A. Adejumo President …………………………………. ………………………………… Hon. Justice B. B Kanyip Hon. Justice M. B. Dadda Judge Judge