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In The Supreme Court of
On Friday, the 11th day of
January 2008
Before Their Lordships
S.C.
201/2005
Between
Judgement of the Court
Delivered by
Aloma
Mariam Mukhtar.
J.S.C.
In the Federal High Court
holding in Ilorin the 1st appellant sought the following relief’s
in an application for judicial review:-
"(i)
An order of certiorari to remove into this Honourable court for
purpose of being quashed the decision of the respondents contained in a
letter dated 19th February, 2003 ref. No.
ML.IB/147/1/76 refusing the registration of the applicants a Senior Staff
Trade Union.
(ii)
Order of mandamus compelling the respondents to register the
applicant as a Senior Staff Trade Union under the
Trade Union Act Cap. 437
as amended.
(iii)
Declaration that it is unconstitutional, illegal, unlawful and
against the provisions of convention 87 and 89 of the International Labour
Organization for the respondents to refuse to register the applicant as a
Senior Staff Trade Union.
(iv)
Declaration that it is ultra
vires the powers of the respondents to
refuse, or neglect to register the applicant as a Senior Staff Trade Union
without following the provisions of the
Trade Union Act Cap 437 as
amended or in total violation of the provisions of that Act.
(v)
Order directing the respondents to forthwith register the applicant
as a Senior Staff Trade Union."
The grounds relied upon by the
applicants for the relief’s sought are as follows:-
"(a)
The decision of the respondents to refuse to register the applicant
as a Senior Staff Trade Union was in clear breach of the provisions of the
Constitution of the Federal Republic of Nigeria 1999, the provisions of the
Trade Union Act, convention 87 and 89
of the International Labour Organisation and against the rules of
natural justice.
(b)
The respondents in coming to a decision refusing registration took
irrelevant facts and material into consideration in coming to their
conclusion on the matter.
(c)
The rights of the members of the applicant to freely associate as
guaranteed under the Constitution has been violently breached by the
respondents."
A verifying affidavit of the
above facts had the following salient paragraphs:-
"5.
That I know as a fact that in February, 1997 our Association was
registered with the Corporate Affairs Commission as an incorporated Trustee
under part C. The copy of the certificate of registration dated 18l
February, 1997 is attached as exhibit NAC1.
6.
.That I know as a fact that the interest of our members is not being
safeguarded or represented by any of the existing Trade Unions.
7.
That I know as a fact that due to the fact in paragraph 6 supra the
members of our Association resolved that we should register our Association
as a Senior Staff Trade Union to effectively take care of our collective and
individual interests all over Nigeria and in furtherance of our
Constitutional right of free association.
8.
That I know as a fact that in furtherance of the above, our
Association vide its letter of 28th March, 2002 applied to the 1st
respondent for registration as a Senior Staff Professional
Association. A copy of the letter is attached and marked as exhibit NAC 2.
9.
.That I know as a fact that the 1st respondent in his
letter of 24th April, 2002 directed our Association to the 2nd
respondent. A copy of the letter is attached as exhibit NAC 3. 2.
10.
That I know as a fact that in compliance with exhibit NAC 3 our
Association met with the 2nd respondent and the applicant met all
the statutory requirements set out in the Trade Union Act to get it
registered as a trade union.
13.
That I know as a fact that the 1st respondent responded to
exhibit NAC 4 in his letter of 19th February, 2003 in which he
stated that the applicant cannot be registered. A copy of the letter is
attached as exhibit NAC. 5.
14.
That our leading counsel Yusuf O. Ali. Esq
SAN told me, and I verily believed him that:
(i)
The 2nd respondent is the officer that has power under the
law to register or refuse to register a trade union.
(ii)
The refusal to register a union must be in the prescribed form.
(iii)
The 1st respondent has no power to usurp the statutory
power of the 2nd respondent
(vi)
The right
to form or belong to any association is constitutional and cannot be denied.
(v)
The refusal of the respondents to register the applicant has eroded
the constitutional rights of the members of the applicant."
The respondents raised
preliminary objection to the application on the following preliminary points
of law which are:-
"1.
That the applicant’s suit as commenced herein be
struck out, the same being incompetent, unmaintainable
and an abuse of Court process.
2.
This Honourable Court lacks jurisdiction to entertain this suit in
its entirety in that the Applicants herein lack locus standi to institute
this action against the respondents.
Grounds of Objection
(a).
The procedure adopted by the Applicant in commencing this suit by way
of judicial review for an order of Certiorari is fatal to the Honourable
Courts determination of the applicant’s cause of action (if any) in that the
Honourable Court is limited to only affidavit evidence thereby.
(b).
The use and/or employment of the procedure
for judicial review is most inappropriate in the circumstances and amounts
to an irregularity which this Honourable Court should not accede to.
(c).
The Applicant herein lacks locus standi to institute this action,
against the Respondents; the Applicant not being a registered Trade Union by
law."
One Ibrahim
Kwasaure of the Federal Ministry of Employment
Labour and Productivity swore to a counter-affidavit to the motion on
notice. Both affidavits were considered by the learned trial judge, who at
the end of the day overruled the objection.
On 10/11/2003 the Medical and Health
Workers Union of Nigeria applied to be joined in the application as
defendant/respondent before judgment can be delivered on it. In its ruling
for joinder as an interested party the Learned Federal High Court judge
granted the application and ordered that the applicant be joined as
defendant/respondent. The interested party as a 3rd respondent
caused a counter-affidavit to be sworn to, and salient among the depositions
are the following:-
6.
I am further aware that Alhaji M. A. Erena,
the National President of the 3rd Respondent herein is a
Community Health Practitioner and a member of the Applicant's Association.
7.
I am further aware that the following Community Health
Practitioners/Workers are members of the 3rd Respondent Union and
are currently holding the various executive posts in the 3rd
Respondent Union too
...................
8.
I am aware that the 3rd Respondent Union has been
organizing, safe-guarding and representing the interest of members of the
Applicant in paid employment in all the States of the Federation since the
Restructuring of Trade Unions in 1978.
9.
I am also aware that under the
Trade Unions (Amendment) Act, 1996 the 3rd Respondent Union
herein was granted jurisdiction to organize and represent all Medical and
Health Workers in all Medical and Health Institutions in the Country
inclusive of members of the Applicant's Association.
10.
I am further aware that it was based on this state of the law that
the 1st Respondent herein declined to grant the application of
the Applicant as in Exhibit NAC 5 of the verifying affidavit in support of
the Motion on Notice.
11.
I am informed by I. A. Oputa-Ajie
Esq of counsel and I verily believe him that:
(a).
The 1st and 2nd
Respondents herein have the power under the law to refuse the
registration of any new Trade Union where there is already an existing Trade
Union.
(b).
The right to form or belong to any
Association is a qualified right and as such can be denied to any person or
group of persons.
12.
I am further aware that none of the Respondents herein resides in
Ilorin nor carry out their statutory functions in Ilorin within the
jurisdiction of this Honourable court."
After the address of learned
counsel for all sides involved, the learned Judge granted the application,
and held that the applicant was entitled to the reliefs sought in the
matter. The respondents dissatisfied with the judgment appealed to the Court
of Appeal. The Court of Appeal set aside the decision of the trial court.
Further appeals were filed in this court by the applicant, and the 1st
and 2nd respondents in the application before the Federal High
Court. Briefs of argument were exchanged by learned counsel. As there are
two separate appeals, I will treat the appeals individually. In the first
appeal, brief of argument filed by the Senior Advocate for the appellant has
the following issues for determination formulated therein. They are:-
"1.
Whether the learned justices of the court below were right in setting
aside reliefs (i) (u) and (v) granted in favour
of the appellant by the trial court on the ground that the appellant did not
proof (sic) her entitlement to same having regard to the alleged non denial
of paragraph 7 or the counter-affidavit of the 1st respondent
which was clearly not so on record.
2.
Whether the learned justices of the court below correctly interpreted
the provisions of Sections 3 and 5 of the Trade Union Act Cap 437
viz a viz the
provisions of Section 40 of the 1999 Constitution and the decision of this
court in the case of
Osawe
v. Registrar of Trade Unions (1985) 1 NWLR (pt. 4) 255 when the facts,
circumstances and antecedent of the case were totally different from the
facts of the present case.
3.
Whether the learned justices of the court below were not wrong in the
view their Lordships took that relief No. (iii) was not properly granted in
favour of the appellant by the trial judge on the ground that the provisions
of Clauses 87 and 89 of the International Labour Organization Convention
have no legal force in Nigeria having not been ratified by the National
Assembly even though signed by Nigeria, when the decision of the trial court
to grant the relief was based on other valid grounds not considered by the
court below.
4.
Whether their Lordships of the court below were right to have
endorsed the ruling of the trial court that the 1st respondent
was a proper party to the case, when it granted its application for joinder
when in fact there was no relief claimed by the appellant against the 1st
respondent, there was no counter claim by the 1st respondent and
there was nothing in the case connecting it to the relief’s sought and
granted by the trial court in favour of the appellant."
A single issue for
determination was raised in the 2Ild and 3rd
appellants' brief of argument on the second appeal. The issue reads as
follows:-
"Whether the ideals embodied
in the ratified ILO conventions 87 and 98 have not become incorporated into
Nigerian jurisprudence by virtue of similar rights preserved under cognate
provisions in Municipal Trade Unions Acts and Legislations as to make its
provisions justiceable in Nigerian Courts; and
if not, whether recourse to the 1999 Constitution and the African Charter on
Human and Peoples' Rights (Ratification and Enforcement) CAP 10 Laws of the
Federation of Nigeria 1990, containing identical provisions preserves a
litigant's rights, so as to negate the lower courts decision that the same
have not been enacted into law and have no force of law in.
A single respondent's brief of
argument was filed and in the brief are the following issues formulated for
determination:-
"1.
Whether the Court of Appeal was right to have reversed the decision
of the trial court grating relief’s i, ii and v
claimed by the 3rd Respondent (now 1st Appellant) on
the ground that there already exists a Union covering the interest of the 3rd
Respondents (now 1st Appellant);
2.
Whether the Court of Appeal was right to have reversed the decision
of the trial Court by holding that the Minister of Labour and Registrar of
Trade Unions were right have refused to register the Community Health
Practitioners of Nigeria as a senior staff trade union, having regard to the
totality of the evidence before the trial court and the subsisting state of
statutory and judicial authorities.
3.
Whether the Court of Appeal was right to have stated that relief iii
granted by the trial court was based on non-existing law having regard to
the fact that relief iii was predicated on ILO Convention 87 and 98.
4.
Whether the Court of Appeal was right to have upheld the Order of
joinder of the Medical and Health Workers Union of Nigeria Appellant (now
Respondent) as an interested party in the proceedings by the trial court."
I will commence the treatment
of the appeals with the first appeal. An excerpt of the judgment of the
court below attacked by the Learned Senior Advocate, in dealing with issue (i)
in the appellant's brief reads:
"I have carefully gone through
the affidavit Evidence before the court and I am of the view that these
findings of the lower court, were not based on
the evidence before that court. In the counter-affidavit filed by the
Appellant dated 14th May, 2004 particularly paragraph 7 it was
deposed to as follows:-
"7.
I am further aware that the following Community Health
Practitioners/Workers are members of the 3rd Respondent union and
are currently holding the various executive position in the 3rd
Respondent union too.
(a)
Comrade Lot Dadiya.
National vice President. North East,
(b)
Comrade Halsam K.
Lawan. Chairman.
(c)
Comrade Muhammad Kadir.
Chairman.
(d)
Comrade Dambara Dogo.
Chairman.
(e)
Comrade Al-Mumini.
(f)
Comrade Musa Das. Chairman.
(g)
Comrade Ahmed Idris.
Chairman.
(h)
Comrade Halilu
Ismaila. Chairman.
(i)
Comrade A. Joseph. Chairman.
(j)
Comrade U, U. Chairman.
(k)
Comrade Hussan Obata.
(1)
Comrade Ore. Chairman.
In further Affidavit in
verification of the facts relied upon filed by the 3rd respondent
in reply to the counter-affidavit filed by the Appellant, this important
averment was not denied. It is therefore crystal clear that the 3rd
respondent indeed belonged to an existing trade union i.e. the Appellant.
It is on this basis, my Lords,
that I hold that the relief’s numbers (i), (ii)
and (v) granted by the lower court cannot stand. I also wish to point out
that the right of freedom of association granted by section 40 of the 1999
constitution is not absolute."
Learned Senior Advocate
submitted that the above decision is totally wrong. He further submitted
that a proper appraisal and understanding of the totality of the affidavit
evidence more than justify the trial court's decision granting the relief’s
sought by the appellant which reads as follows:-
"The applicant was turned down
for registration because it was alleged that there was an existing Trade
Union taking care of her union activities. But by the Community Health
Practitioners Decree No. 61 of 1992, the Federal Government enacted the
legislation for the community Health Practitioners in the country to realise
its community and rural health objectives.
The question is why the
Registrar or Minister would deny the workers Trade Union status if the
government itself has carried the body out as a separate profession. It was
averred by the Minister or Register that there was an existing Trade Union
for that purpose but the bottom has been knocked out of this contention by
the letter of the Minister himself, Exh. NAC 5
in paragraph 8, where their letter reads as follows:-
"8
By a copy of this letter, the Registrar of Trade Unions and the 2
unions contending for the unionisation
of the members of the Community Health Practitioners are being
informed of the Hon. Minister's decision on the matter."
This paragraph clearly shows
that the situation is fluid contrary to the view that there is an existing
trade union for the Applicant. The truth is that the Medical Workers Union
and the National Union of Local Government Employees are contending for the
unionisation of the applicant.
In my humble view, it is more
discreet to allow them form a trade union within themselves rather than
leave them at the mercy of the two contending forces which they do not want.
Furthermore, this would be a fait accompli as the Federal Government itself
recognised them as a profession by virtue of Decree 61 of 1992.
In the light of the above, I
am of the view that the discretion of the Minister not to register the
applicant as a trade union has not been judicially or judiciously
exercised."
The respondents have argued
that the above finding of the lower court cannot be faulted. In my view
paragraph (7) of the 3rd respondent's counter-affidavit is the
pivot around which the present argument revolves, and it has already been
reproduced above. The respondent in reply to the counter-affidavit deposed
the following in the further affidavit in verification of the facts relied
upon:-
"5.
That the General Secretary of the National Association of Community
Health Practitioner of Nigeria informed me and I verily believe him to be
true and correct that virtually all the depositions contained in the
counter-affidavit are not true, especially paragraphs 4, 5, 6, 7, 8, 9, 10
and 12 of the counter-affidavit contained fabricated depositions.
(vi)
That all
persons listed in paragraph 7 of the counter affidavit are not
bonafide members of National Association of
Community Health Practitioners of Nigeria as all of them are not registered
and/or licensed under the Community Health Practitioners Registration Board
of Nigeria established pursuant to Decree No. 61 of 1992.
(vii)
That apart from the fact that they were/are not registered, they
cannot claim to be members of National Association of Community Health
Practitioners because they were excommunicated as a result of their anti
professional behaviour which is not in line with the code of conduct
(Ethics) for Community Health Practitioners in
Looking at the depositions in
the further affidavit of verification which I have reproduced above,
although there is a blanket denial of paragraph (7) of the counter-affidavit
(also already reproduced supra), the specific denials in subparagraphs (vii)
and (viii) supra are not denials in the true sense of it. It is instructive
to note that while it was admitting that the persons listed in the said
paragraph (7) were members, it professed that they were not
bonafide members because of non registration,
and that they were in fact excommunicated from the association because of
some negative behaviour. This to my mind reinforces the respondent's case
that they were members, and actually participated in the affairs of the
appellant's association, (whether or not they were
bonafide part of them), since they 14 were worthy of being
sanctioned. In other words, if they were not members, the need to
excommunicate them would not have arisen. Again exhibits NAC 6 and 7
attached to the further affidavit buttress the case of the respondent that
the members in paragraph (7) were members of the Association, even though
the said Exhibit NAC 6 talks of withdrawal of the appellant's association
from other Industrial Unions. Paragraph (2) in exhibit NACH 6 dated 18/6/95,
and addressed to the Honourable Minister, Federal Ministry of Labour and
Productivity does not categorically state that the 1st
appellant's members holding positions in the respondent's association have
already resigned, as it reads thus:-
"(2)
That our members holding position in such former unions have been
directed to resign and should tender their resignation letters to their
Chief Executive or next in command where they are the Chief Executive."
Now, we do not know that those
mentioned above have resigned, for there is nothing to show that they have
carried out the directive to them. So they have not in essence denied that
those mentioned in paragraph (7) of the counter-affidavit are no longer part
of the respondent's body, or that they have been expelled by the 1st
appellant. Indeed even exhibit NACH 7 which forms part of the evidence of
the 1st appellant to show that members have been expelled is in
connection with one Mallam Isa
Idasho, and not any of the members mentioned in
paragraph (7) of the counter-affidavit. As far as I am concerned it has not
proved the contrary as far as the said paragraph (7) supra is concerned. The
only point it has pursued to prove is that members of the 1st
appellant's association were expelled for not adhering to its directive and
it exhibited exhibit NACH 7 to support its affidavit evidence. In fact this
exhibit established the fact that it was not all of the 1st
appellant's members that were in agreement with the association, for some
like Isa Idasho failed to comply with the
directive in the first paragraph of exhibit NACH 6 which reads thus:-
"We the above mentioned
Association, wish to re affirm our earlier decision on the above subject
matter in our National Executive Council (NEC) meeting held at Benin in 1986
and in our delegates conference at Bauchi in
1990, in which we agreed in principle not to belong to any Trade Union or
Association other than our National Association of Community Health
Practitioners of Nigeria."
In the light of the above
analysis, I subscribe to the argument of the learned counsel for the
respondent that the former decision of the court below not affirming that of
the latter decision of the trial court is unassailable.
Still, on this issue (1), the Learned Senior Advocate for the
appellant has argued that the Minister of Labour and Productivity acted
ultravires in writing exhibit NAC 5 by usurping
the statutory powers of the Registrar Trade Union, which was what the trial
court found, but that the
court below misconstrued the case on that point. He cited the case of
Adejugbe
v. Ologunja 2004 6 NWLR part 868 page 70.
According to the learned Senior
Advocate under Section 3(i) of the Trade Union
Act, the decision to register or not to register a trade union
inhers in the Registrar trade union and not in
the Minister of Labour and Productivity. The Learned Senior Counsel
submitted that where a court misconstrue the case of a party like the court
below did in this matter, its decision would be held to be perverse.
He placed reliance on the case of
Udengwu y. Uzuegbu
2003 13 NWLR part 836 page 136. At this juncture it is pertinent to
consider the provision of the said Section 3(i)
of the Trade Unions Act Cap. 437 Laws of
the Federation 1990, which reads thus:-
"3
(1)
An application for the registration of a
trade union shall be made to the Registrar in the prescribed form and shall
be signed:-
(a)
In the case of a trade union of workers, by at least fifty members of
the union; and
(b)
In the case of a trade union of employers by at least two members of
the union."
Interestingly, the 1st
appellant's application for registration (exhibit NAC 2) was addressed to
the Minister of Labour and Productivity, whose ultimate response to the
application exhibit NAC 5 was sought to be quashed by the 1st
appellant vide relief (1) in its application, and it was the minister that
requested the 1st appellant to liaise with the Registrar of Trade
Unions; who has the statutory responsibility to deal with the matter, vide
exhibit NAC 3. The letter
of refusal to register, written by the minister, exhibit NAC 5, and which
forms the kernel of this litigation, the salient paragraphs of which read as
follows:-
"2.
Community Health Practitioners
(Registration etc) Decree No. 1 of 1992 established a Board in respect
of Community Health Practitioners and also makes incidental provisions for
the control of the practice of the profession.
By this Decree, the Government has recognized the Association as a
professional body but this does not automatically transform it to a trade
union organization.
3.
Section 3 subsection 2 of
Trade Union Act CAP 437 of 1990 (quoted in part) states as
follows:-"....... But no trade union shall be registered to represent
workers or employers in a place where there already exits a trade union."
4.
Similarly, section 5
subsection 4 of the same Act on procedures states as follows:-
On the
receipt of application for registration.
"the
Registrar shall not register the trade union if it appears to him that any
existing trade union is sufficiently representing the interest of the class
of persons whose interest the union is interested to represent."
...........................
7.
In view of the foregoing and in accordance with
subsection 2 of section 3 of Trade
Unions Act CAP 437 of the Laws of the Federation of Nigeria, 1990, the
Honourable Minister is not satisfied that you should be registered as a
Trade Union of Senior Staff Association. Your request for registration as a
trade union of Senior Staff Association cannot be favourably considered."
It is instructive to note that
exhibit NAC 5 supra was in consequence of exhibit NAC 4, which the 1st
appellant again addressed to the Minister of Labour and Productivity to
intervene to ensure its registration by the 3rd respondent. The 1st
appellant has not shown by any exhibit, that it heed
the advice of the 2nd respondent to liaise with the Registrar of
the Trade Unions and the response of the said Registrar. It only exhibited
the letter of refusal by the 2nd respondent. How, when it was the
1st appellant who brought the matter before the 2nd
respondent, will it now accuse the 2nd respondent of
intermeddling, is beyond rne. A pertinent
question I would like to ask is, if the 1st appellant was very
much aware of the provision of section 3(1) of the Trade Unions Act supra,
(on which it has predicated its argument), then why were there no
correspondents between it and the 3rd respondent? The content of
Exhibit NAC 5 which 1 have reproduced supra has clearly set out the
pertinent and relevant provisions of the Trade Union Act and the reasons for
the refusal of the application. The wordings of the provisions are crystal
clear, and their application is correct and proper. Nothing is ambiguous and
nothing is prone to be misunderstood. I fail to see that the lower court
misconstrued the case on the point of the usurpation of the powers of the 3rd
respondent by the 2nd respondent, and refuse to endorse the
argument of the learned Senior Advocate. By the content of paragraph (3) in
exhibit NAC 5 which has already been reproduced supra, and some other
affidavit evidence, (excerpts of which have been reproduced supra) the 1st
appellant has been under the umbrella of the respondent. The position being
so the decision of the Court of Appeal to uphold the refusal of the 2nd
and 3rd respondents to register the appellant as a trade union is
not in error. The case of Erasmus
Osawe and 2ors v. Registrar of Trade Unions 1985
1 NWLR part 4 page 755 was cited by learned counsel for the respondent
in aid of the finding of the lower court upholding the refusal of the
registration in controversy. Kazeem JSC in
expounding the purpose of the provisions of sections 3(1) and (2) of the
Trade Unions Act made the following emphasis on page 763:-
"In my view, this new
provision makes it mandatory for the Registrar of Trade Unions, on receiving
an application to register any trade union, to ensure that there is no other
registered trade union in existence which caters for the same interest as
the one applying for registration. If there is, it becomes incumbent in my
view, for the Registrar, as the custodian of such information, to decline to
proceed to put into effect the machinery for the registration of the new
trade union as set out under Section
5 (2) of the Trade Unions Act, 1973.
Having regard to the facts of
this case, I am of the view that the Registrar was right to have rejected
the application for registration immediately, for to have done otherwise,
might have led to a ridiculous situation
..............................................
What would have happened if he
later discovered that there had already been in existence a registered trade
union catering for the same interest as the proposed one
....................................."
The above demonstrates a
situation that is parallel to the one at hand, for as I have found earlier,
there are many materials in the documents before this court that confirm
that the 1st appellant had all along been catered for by a wider
and encompassing body, which is the 1st respondent. After an
investigation there was no way the 1st appellant would have been
registered in the circumstances. Besides the law is not such that
registration is automatic. It is at the discretion of the Registrar after he
would have made his investigations and became satisfied. For the foregoing
reasoning, I resolve this issue in favour of the respondent, and dismiss
grounds (2), (3), (6) and (7) of appeal to which the issue is married.
Issues (2) and (3) were
treated together in the appellant's brief of argument. The Learned Senior
Advocate opened the argument under these issues with the examination of the
provisions of the said sections 3 and
5, of the Trade Unions Act supra, and
Section 40 of the Constitution of the
Federal Republic of Nigeria 1999, which makes the following provision:-
"40.
Every person shall be entitled to assemble freely and associate with
other persons, and in particular he may form or belong to any political
party, trade union or any other association for the protection of his
interests.
Provided that the provisions
of this section shall not derogate from the powers conferred by this
Constitution on the Independent National Electoral Commission with respect
to political parties to which that Commission does not accord recognition."
The learned Senior Advocate
has attacked the finding of the court below which referred to the finding of
the Supreme Court in the Osawe case supra on the
validity and applicability of the provisions of section 3 of the Trade Union
Act supra vis a vis
the provision of the Constitution, in that case,
section 37 of the Constitution of 1979. In the present case, the court
below, as per Coomasie J.C.A. held as follows:-
"I am obliged and bound by
this holding, and I consequently hold that the provisions of
sections 3 and 5 of the
Trade Union Act (Cap. 43) are not
inconsistent with the provisions of the 1999 Constitution."
The learned justice of the
Court of Appeal arrived at the above holding after he had considered the
stance of the appellant in the lower court, the said provision of
Section 40 of the 1999 Constitution, the relevant provisions of the
Trade Union Act and Section 45 of
the of the same Constitution.
The excerpt of the judgment in the Osawe case
supra, which the court below relied upon, reads as follows:-
"As regards ground 2, it was disputed that
the fundamental right enshrined under
section 37 of the Constitution of 1979 for freedom of association as
Trade Union was subject to the derogation set out in Section
4(1) (a) of the said Constitution.
Hence section 37 of the Constitution
is not absolute as it can invalidate any law that is reasonably justifiable
in a democratic society in the interest of defence, public safety, public
order, public morality or public health. It was not also the contention of
the Appellant that Section. 3(2) of
the Trade Union Act 1973 as
amended by Section 1(1) (a) of the
Trade Union (Amendment) Act 1978 was a law reasonably justified in a
democratic society. It was in fact in order to
maintain public order out of a chaotic situation that the exercise of 1978
was embarked upon which gave rise to the promulgation of the Trade Union
(Amendment) Act 1978. I am therefore unable to agree that
Section 3 (2) of the Trade Union Act
1973 as amended contravenes
Section 37 of the Constitution of 1979."
I would also align myself with
the above exercise and finding of the lower court if I was in the shoe of
the Justice of the Court of Appeal, as it is most fortifying, irrespective
of the fact that the Osawe judgment was handed
down during the Military dispensation which according to Learned Senior
Advocate was with the clear policy to prune down the number of Trade Unions
as found by the Military Government in the country then, which informed the
said decision. The Learned Senior Advocate for the appellant took a rather
long and thorny part to show this court in his brief of argument that the
Osawe's case is distinct from the instant case,
endeavouring in the process to make unnecessary heavy weather of the
existing administration and the administration at the time of the case. The
Learned counsel for the respondent has faulted the contention of the
appellant on the distinction he tried to draw from the administrations,
albeit military or democratic by arguing that the circumstances that gave
rise to Osawe's
case was in December 1980, during a democratic dispensation. Indeed, the
judgment of the Supreme Court on the
Osawe's
case reported in the citation referred to above reveals that the
circumstances that led to the case in the
In this case however, the
learned trial court by bringing extraneous issue or logic to bear on the
case when it was not a bone of contention is to my mind an exercise in
futility as it is of no moment, for the judgment of the Supreme Court is
applicable to the present case, and the Court of Appeal had to follow it, if
it was to follow the right path and not go astray. In the case of
Independent National Electoral
Commission and ors v. Alhaji Abdulkadir
Balarabe Musa and 4 ors 2003 3 NWLR part 806
page 72 upon which the Learned Senior Advocate relied heavily,
section 79 (2) of the Electoral Act
2001 was the provision in relation to which
Sections 40 and 45 of the 1999
Constitution was dealt with thus at page 161 of the report:-
"Section 79 (2) (c) of the Act
was invalid because it was inconsistent with Section
40 of the Constitution. In terms
of Section 45 (1) (a) of the
Constitution there is nothing reasonably justifiable in a democratic
society in the interest of defence, public safety, public order, public
morality or public health in prohibiting a member of the public service or
Civil Service of the Federation, a State or Local Government or Area Council
from eligibility to be registered as a member of a political party. The
submission that the restriction is a valid derogation from
Section 40 by virtue of Section
45 (1) (a) of the Constitution was erroneous. However, this conclusion
is limited to the question of the validity of
Section 79 (2) (c) of the Act, and is not related to any question, not
now before this court in these proceedings of the extent to which the
activity, as members of a political party, of the category of persons
mentioned in that section can be validly restricted by relevant legislation
in the interest of public service."
I am guided by the above.
I think it is pertinent that I
reproduce the provision of the said
section 79 (2) (c) of the Electoral Act that was dealt with supra
together with section (1) for a
proper understanding. They read:-
"79
(1)
Membership of a Political Party shall be open to every citizen
irrespective of his place of origin, circumstance of birth, sex, religion or
ethnic grouping.
(2)
Subject to subsection (1) of this section, a person shall not be
eligible to be registered as a member of a political party if he
(c)
is a member of the Armed Forces of the
Federation, the Nigeria Police,
Security Agencies
or Paramilitary
organ of
the Government;"
If the above reproductions are
read together side by side the facts and applicable laws in the case at
hand, a position is manifestly clear that even though
sections 40 and 45 of the
Constitution formed the basis of the decision and influenced it, the
derogation principle was clearly confined to the validity of
section 79 (2) (c) of the Electoral Act supra only, not generalized.
Towards this, the INEC case supra did not overrule the
Osawe's case, nor in fact did the case of
Abacha
v. Fawehinmi (2000) 6
NWLR part 660 page 228, which the learned
trial judge relied upon in granting the application, and the
provisions of Article 10 of the African Charter on Human and Peoples Rights
(Ratification and Enforcement) Act Cap. 10 laws of the Federation 1990,
which provides the following:-
"1.
Every individual shall have right to free association provided that
he abides by the law.
2.
Subject to the obligation of Solidarity provided for in Article 29 no
one may be compelled to join an association."
The above provision is very
much in substance identical with the provision of
section 37 of the Constitution of 1979, and
sections 40 and 45 of the 1999
Constitution supra, that were discussed and analysed in the
Osawe case supra.
The Learned Senior Advocate in
dealing with issue (3) supra, submitted that the court below was wrong in
dwelling as it did on the applicability or otherwise of the provisions of
articles 87 and 89 of the
International Labour Organisation Convention contending that the learned
trial Judge did not rely only on the provisions of
Section 40 of the 1999 Constitution
and Article 10 of the African Charter on Human and Peoples' Right, and
the decision in INEC's case supra: Before I go
any further, I will look at the judgment of the trial court, first to see
whether the above submission is in tandem with any part of the judgment, and
how the issue of the convention arose and was dealt with and relied upon. It
is a fact that in his conclusion of the judgment, the learned trial judge
said:-
"In the light of the
foregoing, this application succeeds. I hereby hold that the applicant is
entitled to the reliefs sought in the matter i.e. relief’s I, II, III and
V."
To appreciate the purport of
the above conclusion, one has to look at the reliefs sought. It is
instructive to note that the relevant relief to this discussion is relief No
III which was predicated on the International Labour Organisation, and which
has already been reproduced in the earlier part of this judgment. The
argument of the learned counsel for the respondent is that the relief was
granted in error by the trial court because there was no evidence before the
court that ILO convention on which the relief was predicated had the force
of law in
In the light of the above
discussion I do not see that the learned Justice in the court below erred
when it was held thus in the lead judgment:-
"On relief iii granted by the
trial court it is crystal clear that the relief was granted in error. The
relief granted by the trial court is for a declaration that it is
unconstitutional, illegal, unlawful and against
the provisions of Convention 87 and
89 of the International Labour Organisation for the respondents to
refuse to register the applicant as a Senior Staff Trade Union (S.S.T.U.).
There is no evidence before the court that the I.L.O. Convention, even
though signed by the Nigerian government, has been enacted into law by the
National Assembly. Section 12 of the
1999 Constitution provides as follows:-
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