CASE TITLE: FADAIRO & ORS v. NASU & ANOR (2024) LPELR-62868(CA)
JUDGMENT DATE: 12TH JULY, 2024
JUSTICES: JOSEPH OLUBUNMI KAYODE OYEWOLE
ABUBAKAR MUAZU LAMIDO
JANE ESIENANWAN INYANG
DIVISION: IBADAN
PRACTICE AREA: ADMINISTRATIVE LAW
FACTS:
This appeal borders on civil procedure.
This is an appeal against the decision of the High Court of Ogun State, delivered on 16th January, 2018.
In a Writ of Summons filed on 15th January, 2014, the Claimant (the 1st Respondent herein) claimed against the Defendants (the 2nd Respondent and 1st – 3rd Appellants herein) the following:
1. The sum of N71,783,659.00k (Seventy-One Million, Seven Hundred and Eighty-Three Thousand, Six Hundred and Fifty-Nine Naira) only as special damages being the amount illegally transferred from the Claimant-FUNAAB Current Account No. 0032775678 to an unknown account by the Defendants.
2. The sum of N12,239,593.96k (Twelve Million, Two Hundred and Thirty-Nine Thousand Five Hundred and Ninety-Three Naira, Ninety Six Kobo) only as special damages being the total amount of money the 2nd, 3rd and 4th Defendants fraudulently and personally withdrew from the loan facility in the account No. 0032775678 of the Claimant – FUNAAB which sum were not disclosed, accounted for and was not part of the official loan taken or obtained from the Claimant – FUNAAB by the 2nd, 3rd and 4th Defendants.
3. The sum of N1, 543,000.00 (One Million Five Hundred and Forty-Three Thousand Naira) only as special damages being the amount illegally and fraudulently withdrawn by the 2nd & 3rd Defendants from the Claimant – FUNAAB’s Current Account No. 0032775678 as a result of the 1st Defendant’s negligence, refusal and omission to stop forthwith banking transaction relating to the said account with the 2nd and 3rd Defendants or any other unauthorized persons.
4. The sum of N20,000,000.00 (Twenty Million Naira) only as general damages suffered by the FUNAAB of the Claimant for financial inconvenience, frustration, loss of reputation and the liability of the Claimant – FUNAAB to meet up her financial obligations to her members and to put the said sum illegally transferred and withdrawn into meaningful, gainful and beneficial investments or projects.
5. 20% interest rate of the total sum of N73,326,659.00k illegally transferred and withdrawn by the Defendants from the Claimant – FUNAAB’s account No. 0032775678 from 28th day of February, 2011 until judgment is delivered.
6. 20% interest rate of the total sum of N12,239,593.96k (Twelve Million Two Hundred and Thirty-Nine Thousand Five Hundred and Ninety-Three Thousand Ninety-Six Kobo) only being the total amount the 2nd, 3rd & 4th Defendants fraudulently and personally withdrew from the loan facility between 25th March, 2008 – 17th January, 2011.
7. 10% interest rate on total judgment sum until the judgment sum is fully and totally liquidated.
The 2nd – 4th Defendants (the Appellants herein) filed a Notice of Preliminary Objection dated 24th June, 2014 wherein the Trial Court was urged to either dismiss or strike out the suit on the following grounds:
i. That the claims do not disclose any cause of action.
ii. That the Court lacks jurisdiction to entertain the suit due to non-fulfilment by the Claimant/Applicant of a condition precedent and/or failure to comply with the mandatory provisions of Trade Unions Act and the Constitution/Rules of its Union.
iii. That the Court lacks jurisdiction to entertain the suit due to non-fulfilment of a condition precedent and/or non-compliance with Order 3 Rule 1(a) – (d) of the High Court of Ogun State (Civil Procedure) Rules.
In a considered ruling, the Learned Trial Judge dismissed the Preliminary Objection and held that the Trial Court had jurisdiction. At the conclusion of trial, the trial Judge delivered judgment on 16th January, 2018, wherein the action was dismissed against the 1st Defendant (the 2nd Respondent herein) but succeeded in part against the 2nd, 3rd and 4th Defendants (the Appellants herein) with costs of N50,000.00 (Fifty Thousand Naira) awarded in favour of the 1st Defendant and N200,000.00 (Two Hundred Thousand Naira) in favour of the 2nd, 3rd and 4th Defendants.
Peeved with the decision of the Trial Court, the Appellants appealed.
ISSUES FOR DETERMINATION:
The Court determined the appeal on the following issues:
1.Whether from the totality of facts and laws placed before the Lower Trial Court and the circumstances of this case, the Administrative Relief mandatorily available in both Section 38(1)(2) and (8) of the Trade Unions Act Cap T14 Vol. 14 LFN, 2010 and Rules 3 and 8(13) of the NASU Union Constitution was exhausted by the Respondent before the commencement of the suit?
2. Whether the 1st Respondent by the totality of its pleadings and evidence placed before the Trial Court satisfactorily established and/or proved a case of the tort of negligence and the allegation of fraud beyond reasonable doubt against the Appellants?
COUNSEL SUBMISSIONS:
The issue raised by the Appellant and 1st Respondent, though couched semantically differently, which border on whether the Claimant/1st Respondent herein exhausted the internal remedy mechanism provided by Section 38 (3)(5) and (6) of the Trade Union Act before he approached the Lower Trial Court before he initiated Suit No: AB/12/2014 as to fulfil the condition precedent required to vest jurisdiction on the Trial Court will be considered first.
In arguing this issue, C.J.P Ogugbara, Esq, submits that the action of the 1st Respondent was premature as there was non-compliance with the statutory requirement of Section 38(1)(2) and (8) of the Trade Unions Act Cap T14 Vol. 14 LFN, 2010. Whenever a statute provides for a remedial right, resort cannot be made to litigation in the Courts by an aggrieved party till that remedial right has been extinguished. The judicial authorities of ORUBU v NEC (1988) 12 SC (PT.III) 1 at 46-47; EGUAMWENSE v AMAGHIZEMWEN (1993) 11 SCNJ 27 at 45; AGIENOJI v COMMISSIONER OF POLICE, EDO STATE (2007) 4 NWLR (PT. 1023) 23 at 45 paras F-H.
The holding of the Apex Court per Belgore, JSC in EGUAMWENSE v AMAGHIZEMWEN (supra) was reproduced for ease of reference:
“The provision of Section 236 of 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects. All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in Court…”
It is further submitted that flowing from the statutory and judicial authorities cited to buttress their submissions, the 1st Respondent’s suit was heard by the Learned Trial Judge in error and without jurisdiction as the committee of management of the 1st Respondent had not demanded of the Appellants an account as mandatorily required under the Trade Unions Act.
Benjamin A. Ogunleye, Esq., of Learned Counsel for the Respondents, on the other hand, states that this issue was raised by the Appellants as a preliminary objection to the competence of the 1st Respondent’s suit at the Lower Court on 24th June, 2014. The 1st Respondent opposed the preliminary objection vide a Counter-Affidavit and Written Address filed on 6th August, 2014. The Court is referred to the ruling of the Lower Court contained at pages 341M – 341N of the Supplementary Record of Appeal where it held that Section 38(1)–(8) of the Trade Union Act deals with the duties of a Treasurer of a Registered Union, when required to do so by the Rules of the body, or on being specifically directed to do so by the management committee, to prepare a full and accurate account of the body.
Learned Counsel posits that a calm reading of Section 38 of the Trade Union Act shows that it deals with treasurers or officials of a Registered Trade Union being in custody of the funds of the body and when required by the body or Management Committee to give account, the balance left which he failed to remit, an action can be instituted against him to recover the balance or any official of the Registered Union.
DECISION/HELD:
In conclusion, the Court dismissed the appeal.
RATIO:
ADMINISTRATIVE LAW – EXHAUSTION OF ALL REMEDIES: Whether an aggrieved party must exhaust all the remedies available to him in law before resorting to court; effect of failure
“It is trite that remedies provided for in statute must be exhausted by an aggrieved party before he approaches the Court to institute an action. See SENATOR AMEH EBUTE v ABUJA ELECTRICITY. As held by this Court in MINING CADASTRE OFFICE v UIG PETROLEUM & TRANSPORT INVESTMENT LTD & ANOR (2018) LPELR – 46046 (CA):
“The aim of statutory pre-conditions for commencement of actions is to provide an opportunity for settlement out of Court…The intendment is to give the person contemplating Court action opportunity to give the matter a second thought before embarking on avoidable litigation. Unless the conditions-precedent to the institution of an action are complied with, the party initiating the action cannot ignite the jurisdiction of the Court to hear and determine the dispute, in such a case, the matter has to be struck out…where a statute provides for dispute resolution before resort to litigation, failure to exhaust those remedies is a bar to litigation and puts the jurisdiction of the Court on hold…”
See also ATTORNEY GENERAL OF KWARA STATE & ANOR v ALHAJI SAKA ADEYEMO (2017) ALL FWLR (PT. 868) 610.” Per INYANG, J.C.A.
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