Adetola Ojomo & Anor V. Emmanuel Ijeh & Anor (1987)

LawGlobal-Hub Lead Judgment Report

MICHAEL EKUNDAYO OGUNDARE, J.C.A.

 By a writ of summons issued on 24/11/82, the plaintiffs who are members of the Non-Academic Staff Union of Educational and Associated Institutions (NASU for short), University of Ibadan branch and who were, at all time relevant to the action leading to this appeal, the branch chairman and branch secretary respectively, commenced proceedings on their behalf and on behalf of members of NASU, University of Ibadan Branch claiming against the defendants as hereunder:

(1) A Declaration that the Executive Committee of the University of Ibadan Branch of the Non-Academic Staff Union of Educational and Associated Institutions (hereinafter referred to as N.A.S.U.) elected on 2nd December, 1981 under the Chairmanship of Adetola Ojomo is the lawful Executive Committee of the aforesaid branch of N.A.S.U.
(2) Further and in the alternative that the purported election of another N.A.S.U. Branch Executive Committee on 27th October, 1982 is ultra vires, unconstitutional, null and void and of no effect whatsoever.
(3) A Declaration that the grant of Unit Status by the Defendants to the College of Medicine University of Ibadan Branch is Ultra vires, null and void and contrary to Rule 11 of the N.A.S.U. Constitution.
(4) Injunction restraining the defendants, servants, appointees and/or other functionaries from interfering with the composition and functioning of the said Adetola Ojomo Branch Executive Committee.

The 2nd defendant is the parent body of NASU while the 1st defendant was at all time relevant to the proceedings its General Secretary.
Pleadings were filed and exchanged. The plaintiffs further filed a Reply to the Statement of Defence while the defendants, in turn, filed a Rebuttal to plaintiffs’ reply to the statement of defence.
In the course of the proceedings in the court below, following an application by the plaintiffs for an order of interim injunction restraining the defendants, their servants, agents etc from performing the duties and responsibilities of the Branch Executive Committee of the NASU University of Ibadan branch, Ogundere, J (as he then was) who heard the application made an order that:

“both parties be and are hereby restrained by themselves, their servants, agents, appointees, functionaries or any person acting by or with their authority from performing the duties and responsibilities of the Executive Branch of the Non-Academic Staff Union of the Educational and Associated Institutions University of Ibadan Branch pending the determination of this matter which I shall give accelerated hearing.”
(italics mine)

This order was made on 11th April 1983. On 26th May, the plaintiffs again moved the lower court for “an order of committal for contempt to be made against the defendants/respondents for flagrant disobedience to the order of Injunction made by this Honourable Court on 11th April, 1983 and for such further or other orders………”
After hearing both sides on the application Ogundere, J in a reserved ruling delivered on 25th July, 1983 found both Charles Adeniyi Adeyemi and Emmanuel Ugbeamaka Ijeh guilty of civil contempt of court and sentenced each to 3 months imprisonment with hard labour or a fine of N1,500 in lieu thereof; he discharged and acquitted Moshood Oladimeji Akinade “for technical reasons”. Both 1st and 2nd defendants and one Peters Adeniyi appealed against this decision. This is the first appeal to be filed in these proceedings. The appeal will be later determined in this judgment.

At the trial of the substantive action, each party called in all eight witnesses and tendered a number of documents including the 1982 constitution of the Union (2nd defendant). At the conclusion of trial, the learned trial Judge (Sijuwade, J) in a reserved judgment, found against the plaintiffs and dismissed claims (1), (2) and (4). He however granted the declaration sought in claim (3). It is against the dismissal of their claims (1), (2) and (4) that the plaintiffs have appealed to this Court upon six original grounds of appeal and, with leave of this Court, 3 additional grounds. The 3 additional grounds are herein renumbered 7 – 9 following on the original grounds.
The said grounds read as follows:

1. The learned trial judge erred in law in accepting oral conflicting evidence of witnesses, inadmissible evidence, of what took place at the meeting of 27th October, 1982 when the proper evidence, not tendered at the proceeding was the minutes of the meeting of the day.
2. The learned trial Judge erred in law in holding that the allegation of fraud made against the Plaintiffs’ committee was proved on mere assertion of witnesses when by Law they have to prove beyond reasonable doubt the allegation of fraud made against the plaintiffs committee a duty which the Defendants failed to discharge in the circumstances of this case.
3. The learned trial Judge erred in law in ultimately believing the evidence of DW 2 having earlier doubted the wisdom of believing the witness who admitted knowingly signing a falsified document as correct and who gave oral evidence to contradict his signed statement of account which evidence should have been rejected in its entirety as unreliable evidence.
4. The learned trial Court erred in law in holding that the election of 27th October, 1982 was lawful having found that it was merely a caretaker committee which was not relevant to the issue before the court as it was not so pleaded.
5. The learned trial Judge erred in law in holding that the election of new officers on 27th October 1982 was legal when the meeting was not summoned for election of officers and could not have been part of the proceedings of that day not being on the agenda.
6. The judgment is against the weight of evidence.
7. The learned trial Judge erred in law and misdirected himself in putting the burden of proof that there was no mismanagement of the Union funds on the Plaintiffs when in law it is the Defendants who have to prove their allegation of mismanagement beyond reasonable doubt when he held

“The burden of proof in order to exculpate the Plaintiffs of the allegation of mismanagement of Branch Union’s fund lies on the Plaintiffs, the Defendants having accused them of such mismanagement if they wanted to continue in office and enjoy the confidence of the members, which proof I am afraid they have failed to discharge.

The learned trial Judge erred in law and misdirected himself on the fact in relying on 1982 Constitution which was not in evidence before him having rejected it as Exhibit and relying on Exhibit “U”.

Particulars
1. Exhibit “U” is not 1982 Constitution of the NASU, it is proceedings of First Rules Conference of 1982.
2. No proof that Rule 4(3) of 1977 Constitution of NASU has been complied with.

9. The learned trial Judge erred in law and misdirected himself in relying on the so called statement of defence and evidence led by the Defendants on it when the said so called statement of defence was not properly before the Court.

Particulars
(i) The statement of defence was filed out of time and extension of time was granted on payment of filing fees.
(ii) No filing fee was paid.
(iii) No record of any filing fee paid.

From the pleadings and the evidence led at the trial the following facts emerge: The 1st defendant was at all time relevant to the action in the court below the General Secretary of the 2nd defendant Union which has branches in most tertiary institutions in the country. The two named plaintiffs were the chairman and branch secretary respectively of the University of Ibadan Branch of the 2nd defendant Union. The Union is a trade union registered under the Trade Union Act, 1973 and Trade Union (Amendment) Act, 1978. The 2nd defendant Union had a constitution – the 1977 constitution, (Exhibit J) which governed its affairs and laid down its objects, rules and regulations. At the Rules Conference of the Union held in May, 1982, a new constitution – the 1982 constitution (Exhibit U) was approved. It would appear that both parties relied on the 1982 constitution as being the current constitution binding on the Union.
On 2nd December 1981, the plaintiffs’ Executive Committee was elected into office to run the affairs of the University of Ibadan branch of the 2nd defendant Union. Not long after this election, a pressure group known as the OJO GROUP emerged. This group made series of allegations of wrongdoings against the plaintiffs’ executive committee which were found baseless by the defendants. A general meeting of the Branch Union was summoned for 27th October 1982 by the plaintiffs’ executive committee. There appeared to have been some disorder at the meeting but the Ojo Group claimed that a vote of ‘no-confidence’ was passed on the executive committee and at a subsequent election at the meeting a new executive committee was elected into office consisting mainly of members of the Ojo group. The defendants recognized the new executive committee and communicated this fact to the Registrar of the University of Ibadan by a letter (Exhibit ‘A’) dated 27th October 1982. This letter provoked the plaintiffs to institute their action.
The plaintiffs denied the validity of their removal from office and the election of the new executive committee. Needless to say, that the defendants contended to the contrary.
The defendants had on 31st August 1982 granted Unit Status of a Branch Union to the College of Medicine of the University of Ibadan. The plaintiffs objected to this move by the defendants.

Both parties filed and exchanged briefs in respect of each of the two appeals arising out of the proceedings in the court below. I shall deal first with plaintiffs’ appeal on the final judgment. In plaintiffs’/appellants’ brief learned counsel for them, Mr. Ajakaiye formulated the following issues as calling for determination, to wit:

(1) Whether the statement of defence on the record was paid for as ordered by the Court and therefore whether it can be said to be properly before the court.
(2) Whether the learned trial Judge was right in relying on Exhibit “U” as the 1982 Constitution of NASU and acting on its provision when the document prima facie is the Proceedings of the First Rules Conference of NASU held at Hill Station Hotel, Jos, Plateau State from 26th – 28th May, 1982.
(3) Whether there was evidence before the court as to the date when the 1982 Constitution of the Union came into operation.
(4) Whether the Defendants who alleged mismanagement of Union Fund were able to lead evidence in proof of any mismanagement.
(5) Whether in view of overwhelming evidence before the court of the statement of account of the union, the court could come to the conclusion that there was mismanagement.

At the hearing before us, learned counsel for both parties adopted and relied on their respective briefs and proferred no oral arguments. I shall now proceed to consider the issues as formulated in plaintiffs/appellants’ brief.
In view of the defendants/respondents’ reply to ground 9, I find no substance in the ground covered by Issue (1). In view of plaintiffs’ conduct in filing a Reply to the statement of defence they are now estopped from saying that there was no statement of defence. The issue was at no time raised in the court below. Had this been done the defendants would have satisfied the plaintiffs that they indeed paid for the filing of their statement of defence.
However, as stated earlier, the plaintiffs filed a Reply to the statement of defence. Whatever any irregularity there might be – and I can find no irregularity in the filing of the defence – would be deemed to have been waived by the plaintiffs filing a Reply. Ground 9 therefore fails. See – Sonuga v. Anadein (1967) 1 All NLR 91; Eboh v. Akpotu (1968) 1 All NLR 220.
Issues (2) and (3) deal with Exhibit “U”, the 1982 constitution of the 2nd defendant Union. These issues are covered by Ground 8. It is not in dispute that the N.A.S.U. had a constitution known as the 1977 Constitution. The election, in 1981, of the plaintiffs’ executive would be under this constitution. The 1977 constitution was the Union’s first constitution as the Union itself came into being only in 1977. PW3, Emmanuel Fashola then spoke of the 1982 constitution. This is what he said:

“The First Rules Conferences of N.A.S.U. was held in Jos in May 1982. I attended the Jos conference as a delegate. The 1982 conference only revised the 1977 Constitution because there was no formal resolution to rescue the 1977; there is as such no other Constitution besides that of 1977. It was after the Jos conference that I was appointed a member of the State N.A.S.U. This is the revised copy of the 1982 Constitution of the N.A.S.U.”

PW7, Akintola Ojomo, in his own testimony, said:

“I have as the Chairman of the Union travelled to Jos to attend a conference of the Union on Rules in 1982. At that conference, we made some amendments into the Constitution of N.A.S.U. It was the 1977 Constitution that we amended in 1982. There are documents which relate to the said 1982 Conference. This is the book of proceedings of the First Rules Conference held in Jos in 1982.”

This document was admitted in evidence as Exhibit U and it is what is referred to as the 1982 constitution of the Union. PW 7 and PW 3 are the 1st and 2nd plaintiffs respectively. It is the contention of the plaintiffs/appellants that it was a misdirection on the part of the learned trial Judge occasioning a miscarriage of justice to treat Exhibit U as the constitution of the Union superceeding Exhibit J. They further contended that Exhibit J applied to the case on hand.
Mr. Ayoade, learned counsel for the defendants/respondents in the respondents’ brief submitted that the plaintiffs relied on the 1982 constitution in their pleadings.
Mr. Ayoade is clearly right. In their statement of claim the plaintiffs averred as follows:

6. The affairs of NASU have been run and regulated previously by the Constitution promulgated and approved by the first Delegates Conference at Enugu on 7/11/77.
7. However on 28th May 1982 another Constitution superseding the 1977 Constitution was approved and promulgated by the First Rules Conference held at Jos.
12. Dissident members of the Branch Union were sponsored, funded by the defendants contrary to the constitutional duties imposed on the defendants by the 1977 and 1982 Constitutions of NASU.
14. The defendants surreptitiously planned destabilisation of Plaintiffs’ authority and the Branch Union by unilaterally and wrongfully announcing Unit status for the workers of the College of Medicine contrary to Rule II(3)(ii) of the Constitution which stipulates that a Unit shall not be established where all the members of a Branch are in the locality as in the case of the University of Ibadan Branch.
23. That in view of the averment in para. 14 above the defendants have acted contrary to NASU 1982 Constitution Rule II (B)(ii) in setting up College of Medicine Unit Status upon which they conferred powers concurrent to those of the Plaintiffs’ Committee.

And in paragraphs 2, 3, 8 and 15 of their Reply to the statement of defence wherein they pleaded thus:

2. The Plaintiffs at the trial will rely on the 1977 and 1982 Constitution of the Non-Academic Staff Union of Educational Associated Institutions (i.e. N.A.S.U.).
3. The Plaintiffs will contend that neither the Constitution of 1977 nor that of 1982 provide for the removal from office of the Branch Executive in the manner described by the Defendants in paragraphs 8, 9, 10, 11 and 12 of the Statement of Defence.
8. Furthermore as regards paragraph 14, the Plaintiffs will rely on Rule 25(3) of the 1982 Constitution which recognises and provides for loans, scholarships and/or bursaries to members.
15. On the same paragraph 4, plaintiffs will rely on their letter of protest No.NASU/UIB/8/77 of 27/10/82 addressed to the Defendants as well as Defendants’ letter No. NASU/SA/241/1 of 30/8/82 attached to which was the 1982 Constitution.

The defendants in paragraph 5 of their statement of defence admitted the existence of the 1982 constitution. The paragraphs reads:
5. As regards paragraphs 6 and 7 of the statement of claim the affairs of the 2nd defendant are regulated by 1982 Constitution of the 2nd defendant (hereinafter referred to as 1982 N.A.S.U. Constitution) approved by the first Rules Conference of NASU Wednesday 26th – Friday 28th May, 1982. The defendants will at the trial rely on the proceedings of the first rules conference of 1982 as well as 1982 N.A.S.U. Constitution.

In the face of the pleadings and the evidence of the plaintiffs there is indeed in existence a 1982 constitution of the Union made at the Rules Conference of the Union in Jos in May 1982 and attended by the plaintiffs: Rule 27(1) of the 1977 Constitution – Exhibit J, provided for its amendment by the Rules Conference of the union. The powers and duties of the Rules Conference are contained in Rule 7 of Exh. J. The First Rules Conference held in May 1982 did exactly that and came out with the 1982 constitution, Exhibit U. Contrary to what Mr. Ajakaiye would like this Court to believe, Exhibit U contained not only the proceedings of the conference but also the text of the new constitution. As the question of the registration of the 1982 constitution was never in issue. I do not consider that the non-production of evidence of its registration is fatal to its use by the learned trial Judge. Both parties relied on this document in their pleadings and the 1st plaintiff indeed tendered it, the plaintiffs cannot now be allowed to resile on it. I, therefore, find no merit in Ground 8 which fails.

The remaining two issues as formulated do not, in my humble view, cover adequately the points raised in Grounds 1 -7. I shall, therefore, reformulate these issues thus: Issue (4): Whether or not the branch executive committee elected in December 1981 was properly removed from office. Issue (5): Whether or not the election of a new executive committee on 27th October 1982 was valid.
Taking first issue (4) as reformulated, I like to refer to the judgment. The learned trial Judge at page 196 lines 24 – 34, page 197 lines 1 – 35 and page 198 lines 1 – 32, said:

“I now proceed to examine the other legs of the claim. It is pertinent to mention at this stage to examine the provisions of the Union’s Constitution – Exh. ‘U’ as to the life span of the Executive Committee of a Branch Union. During the address, Mr. Ayoade, learned counsel for defence, submitted it is incumbent on the Plaintiff to satisfy the court that the plaintiff’s Committee of 1/12/81 was to run for three years. Counsel referred to the provisions of Rule 13(5) of Ex. ‘U’ which he contended relate only to officers of the union enumerated under Rule 13(1)(a) of Exh. U. and not to all the officers mentioned in Rule 13(1). The basis of this assertion is because of the handwritten inclusion of the letter (a) between the figures 13(1) and the word ‘shall’ in Rule 13(5) of Exh. ‘U’. This inclusion of the letter ‘a’ in bracket in a writing different from the printed words and figures in Exh. ‘U’ gives much to suspicion. Although upon a proper construction of the provisions of Exh. ‘U’ particularly Rules 6, 7 and 8 the reference as to the time of election of officers of the Delegates Conference and not those of the Branch Unions. In other words, whilst those officers of the Branch Union could be properly described under Rule 13(1) as officers of the Union itself, the duration of their tenure of office cannot be deemed to be three years. That being the case, the Plaintiffs are yet to establish the allegation that they are entitled to remain in office until the expiration of three years following their last election of December 1981. This contention is not supported by their constitution. Assuming that the 1982 constitution of the Union makes such provision, the question is: couldn’t the life of the prescribe tenure under the same Constitution. The answer is in the affirmative. Rule 23(5)(b) of 1982 Constitution provides thus:

“A branch executive committee may be dissolved in a general meeting of the members for persistent violation of the provisions of this constitution and a care-taker committee shall be elected thereat to run the affairs of the branch until the next branch Triennial Conference.” (Note: Italics mine)

Rule 11  VI of Exh. ‘U’ further provides as follows:-

“It shall be the business of the Branch to see to the proper organisation of the Union at grassroots, to represent the members in appropriate cases, and to allow the directives of the good of the Union.”

The question now is what conducts amount to persistent violation of the provisions of the Constitution warranting a dissolution of a Branch Executive Committee? These are not expressly defined in the said Constitution. Schedule 1 relating to Code of practice in Exh. ‘U’ however states some duties, right, responsibilities, together with penalties to erring member or officer. Para 6 (iv)(k) of the said schedule makes it a mandatory duty on the elected officers of the Unions to render a true account of his/her stewardship to the members of the union as and when the occasion arises”; Para. 7 of the same schedule also reads:-

“7. The fact that a trade union is a democratic organization implies that the members of the Union are entitled to assurance that the Union’s funds which are their funds, are not dissipated. They are also entitled to be reasonably informed as to how the funds of the organisation are being used or invested.”

I refer also to Para. 8 of the same schedule. It says:-

“8. Since a union holds its funds, in trust for the benefit of its membership and to further their interests, it shall comply with standards generally applicable to fiduciaries or trustees with respect to the manner in which it keeps its records and accounts. Regular audits shall be conducted and there shall be appropriate distribution of summaries of such audits so that the membership and the public are adequately appraised of the state of the organizations finances.”

Now then, coming to the evidence adduced on both sides, on the finance and keeping of accounts of the Union Branch by the Plaintiffs Committee between December 1, 1981 and October 27, 1982, is there any evidence upon which the Plaintiffs committee could be rightly dissolved and replaced by another group of officers? And if that could be answered in the affirmative, were these new officers duly and legally elected in place of the plaintiffs on 27/10/82?”

After reviewing the evidence, the learned Judge made the following observation which has not been questioned in this appeal. At page 205 lines 16-19, he said:

“Neither the Plaintiff nor the officials of N.A.S.U. Headquarters produced any authentic written statement of account before the court from which all these allegations of payments and non-payment could be verified.”

After a further consideration of the evidence of DW 2 and 1st defendant, the learned Judge made the following findings of fact:

“From the sum total of the testimonies given by all the witnesses as evaluated above, it is crystal clear that the manner in which the account of the U.I. Branch Union of N.A.S.U. was being kept by the plaintiffs’ committee falls below expectation and unsatisfactory, and the fund of the Branch Union must therefore necessarily be in a state of jeopardy that must not only give concern but anxiety to its members hence their spontaneous reactions at the meeting of the 27th October 1982 which I believed led to the motion of no confidence unanimously passed in that committee on the day.
The burden of proof in order to exculpate the plaintiffs of the allegation of mismanagement of branch union’s fund lies on the plaintiffs, the defendants having accused them of such mismanagement if they wanted to continue in office and enjoy the confidence of the members, which proof I am afraid they have failed to discharge. The constitution of the Union enjoins the plaintiffs committee to hold the Branch Union’s funds in trust for the benefit of its members and to comply with standards generally applicable to fiduciaries or trustee with respect to the manner in which it keeps its records and accounts. In the circumstances of this case, the Plaintiff’s could not be said to have complied with the said provisions. See paragraph 8 of the schedule 1 on Code of Practice in Exh. U. The plaintiffs committee was duty bound to render a true statement of account and to inform members of the Branch Union reasonably as to how the funds of the organization are being used or invested. These they have failed to do since their election into office in December 1981. See paragraphs 6(IV)(k) and 7 of Schedule 1 on Code of Practice in Exh. U. It follows that the plaintiffs have by their various conducts highlighted above in this judgment, failed to justify the confidence reposed in them by the members of the Branch Union which conducts I hold could be regarded as persistent violation under the Union’s Constitution to warrant a dissolution of the plaintiff’s Executive Committee as the members did on 27/10/82. On the other hand, even if such conducts are not regarded as persistent violation, which I hold they are the plaintiffs are bound under their constitution to subject themselves to the majority decision of the members’ wish. By virtue of the provisions in para. 6(iv) of Schedule 1 in Exh. U the plaintiffs as officers of the Union must abide by the majority decision which I believe and hold was even unanimous on 27/10/82 that the plaintiffs committee should be replaced as officers of the committee.”

These findings have come under severe attack in this appeal.
True enough, Rule 23(5)(b) of the 1982 constitution provides for the dissolution of a branch executive before the expiration of its term of office which, according to Rule 13(5), was 3 years. Rule 23(5)(b) reads:

“A branch executive committee may be dissolved in a general meeting of the members for persistent violation of the provisions of this constitution and a caretaker committee shall be elected thereat to run the affairs of the branch until the next branch Triennial Conference.”
(italics mine)

There is no doubt that the meeting of 27th October 1982 was a general meeting of members. I am of the view that the plaintiffs’ executive could be dissolved at that meeting if there was proof against it of persistent violation of the Union’s constitution.
The defendants alleged that the executive was dissolved because it was guilty of mismanagement of Union funds. Without the defendants producing “authentic written statement of account from which all these allegations of payments and non-payment could be verified” the learned trial Judge, nevertheless, found the allegations proved because (a) the plaintiffs failed to discharge the burden of proof on them to exculpate themselves of the allegations, the defendants having so accused them; (b) the plaintiffs failed to render a true statement of account and to inform members of the Branch Union reasonably as to how the funds of the organisation are being used or invested since their election in December 1981; (c) the evidence of DW 2, Azubuike who was treasurer in the plaintiffs’ executive, discredited the plaintiffs’ committee as regards the management of the Branch Union’s fund during the period of December 1981 to October 1982; (d) the evidence of 1st defendant to the effect that the Branch Union of N.A.S.U. at U. I. was not being operated as it should be.

With respect to the learned trial Judge he cannot be right in his conclusion based on those reasons. To begin with, the allegation of mismanagement of funds cannot be described as persistent violation of the Union’s constitution. “Persistent violation” can only mean “continuing steadfastly in the pursuit of the violation” of the constitution. There was no such evidence before the trial court. Bearing in mind that almost right from the election of plaintiffs’ committee in December 1981 the Ojo Group had been levying all sorts of allegations against it, allegations which were found baseless by the defendants it is rather strange to accuse that committee in October 1982 of “persistent violation” of a constitution that came into being only in May 1982, at the earliest. It would appear some elements in the Branch Union who were dissatisfied with the results of the December 1981 election, were bent on not giving the committee a chance to rule.
Now, to the learned Judge’s reasons for finding as he did. He was clearly in error in placing the burden of disproving allegations of mismanagement of Union funds on the plaintiffs. The law is: he who asserts must prove. The burden of proof of any issue rests upon the party asserting the affirmative of the issue or who would fail, assuming no evidence had been adduced on either side – Okechukwu & Sons v. Ndah (1967) NMLR 368; Tewogbade & Co. v. Akande & Co. (1968) NMLR 440; Are v. Adisa (1967) NMLR 304; section 135 of the Evidence Act. Had the learned trial Judge properly directed himself on whom lay the burden of proof and in the light of his earlier finding that the N.A.S.U. officials at the Headquarters (that is, the defendants) failed to produce any authentic written statement of account before the court from which all these allegations of payments and non-payment could be verified, he could not have found, as he did, against the plaintiffs.
Assuming that the burden of proof lay on the plaintiffs, the evidence of PW5, Michael Olusesin an accountant attached to the Bursary of the University of Ibadan, Exh. Q and R dated 10th September 1982 and 12th October 1982 respectively and signed by the 1st defendant more than exonerate the plaintiffs from any allegation of mismanagement of funds. Exhibit R in particular, is a clear admission by the defendants that the plaintiffs were not guilty of wrong doings or abuse of constitutional authority. Had the learned trial Judge adverted his mind to these pieces of evidence he could not have found in the manner he did, against the plaintiffs.

The learned trial Judge’s treatment of the evidence of Azubuike was unfortunate. This witness testified for both sides. He was treasurer in plaintiffs’ executive committee and was called by the plaintiffs to tender some documents. The defence called him to testify as DW2. In his testimony he admitted he falsified his report Exhs. X-X2 and that he and the two named plaintiffs were not thieves. It would appear that the learned trial Judge considered only the seemy side of his evidence and ignored the side favourable to the plaintiffs.
I have already dealt with Exhibits Q and R written by the 1st defendant. In the light of these documents it is difficult to fathom how the learned trial Judge could have given any credence to the opinion expressed by the 1st defendant in his testimony.
The sum total of all I have been saying above is that there was no basis under the 1982 constitution for the removal of the plaintiffs’ executive committee on 27th October 1982. The learned trial Judge ought to have so found. A branch Union executive can only be validly removed between two triennial conferences in the manner laid down in the constitution. That was not the case here. The defendants, like Pontius Pilate, appeared to have yielded to the pressure of the Ojo Group who, as shown by Exhibits N-0 had held an illegal meeting and chosen themselves as new officers of the Branch Union and, in spite of the defendants’ belief in the innocence of the plaintiffs’ committee as expressed in Exhibit R, still bowed to the wishes of the Ojo Group.

Issue (5) as reformulated by me deals with the validity or otherwise of the election of a new executive on 27th October 1982. As I have held above that the plaintiffs’ executive was wrongly removed from office, it follows that the election of a new executive must be invalid.
That part, Rule 23(5)(b) of the 1982 constitution which I have earlier in this judgment quoted, provides for the election of a caretaker committee “to run the affairs of the branch until the next branch Triennial Conference”.
Surely, a caretaker committee is not the same as an executive committee. The learned trial Judge acknowledged this point and for that reason ought to have granted claim (2).
For the reasons given above, grounds 2, 3, 4 and 7 succeed. This appeal succeeds and it is hereby allowed. I need now to consider what order or orders to make.

I cannot now grant declaration (1) as the term of office of the plaintiffs’ executive had long expired at the branch triennial conference held after its election in December 1981. A declaration can only be made in the case of an existing right or a right depending upon a future event – Ekun & Ors v. Baruwa & Ors (1965) LLR 1. In respect of alternative declaration (2) I think this should be granted. This Court has a discretion to grant a declaration where the relief sought is to establish a right which may be adversely affected in the future by something wrongful already done by the defendants at the time the declaration is asked for – Ekwunu v. Ifejika (1960) 5 FSC 156.

It is necessary to establish once and for all that where a branch Union executive committee is removed under Rule 23(5)(b) of the 1982 constitution of the N.A.S.U only a caretaker committee can be elected to run the affairs of the branch union until the next branch triennial conference when a new executive committee is elected. In the circumstance, I hereby declare that the purported election of another N.A.S.U. U.I. Branch Executive Committee on 27th October, 1982 is ultra vires, unconstitutional, null and void and of no effect whatsoever.
Having refused to grant declaration (1) it follows that claim (4) must equally be refused and it is hereby accordingly refused.

I now turn to the defendants’ appeal against their conviction for civil contempt of court. I have earlier in this judgment stated the events leading to the committal of the 1st defendant and Peters Adeniyi Adeyemi for disobedience of the order of the court below restraining both parties from performing the duties and responsibilities of the Executive of the U. I. Branch of the 2nd defendant Union. In order to succeed on the application for committal the plaintiffs (who were the applicants) must prove:
(a) that there was compliance with Order 8 rule 13 of the Judgment Enforcement Rules of Oyo State; and
(b) that the acts of the alleged contemnors amounted to a breach of the order of injunction made by the Court.
Indeed these are the two issues arising for determination in the appeal. And in this respect I prefer the formulation of the issues as contained in the plaintiffs/respondents’ brief to that contained in the defendants/appellants’ brief. The learned trial Judge recognised these two issues in his ruling.

On issue (a), the learned Judge had this to say:

“Thus to succeed in a motion on notice to commit a person to prison for contempt of court for disobedience of a lawful order of court, the procedure laid down in Section 54 of the Sheriffs and Civil Process Law, and in Order 8 Rule 13 of the Judgment Enforcement Rules must be strictly followed:

They provide as follows:-

“54 – If any person refuses or neglects to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph (f) of Section 48, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.”

Order 8 Rule 13 also provides as follows:-

“13. (1) When an order enforceable by committal under section 54 of the Law has been made the registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 40, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.
(2) If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 41 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as a judgment summons.
(3) On the day named in the notice the court, on being satisfied that the judgment debtor has failed to obey the order and, if the judgment debtor does not appear:

(a) that the notice had been served on him; and
(b) if the order was made in his absence, that the endorsed copy thereof has also been served on him, may order that he be committed to prison and that a warrant of commitment may issue.”

Thus, not only Forms 40 and 41 and the notice of motion be duly served personally on the alleged contemnor, the proof of such service should be established in court either by exhibiting the affidavits of service or by calling the Bailiff to so testify on oath in Court, or by admission of such service in the counter affidavit of the alleged contemnor, or by the admission of the service by counsel for the alleged contemnor from the bar, during the proceedings, which admission has the force of an oath. The attendance of the contemnor at the hearing does not of itself waive the necessity for service. See Mander v. Faloke (1891) 3 Ch. 488. Enabirhires & Anor. v. Atamabo (1967) N.M.L.R 253. Personal service is required save in exceptional cases e.g. where the respondent evades service. O’Donovan v. O’Donvan (1955) 1 W.L.R. 1086, or where there is flagrant disobedience to an order and with notice of it, Gorden v. Gorden (1903) P. 1417.”

The learned judge found as a fact that “there is no affidavit evidence exhibited to show that the plaintiffs/applicants had already served on the defendants/respondents Forms 40 and 41 under the Judgments Enforcement Rules.” On his own exposition of the law in the passage above this should have been the end of the application for committal. But the learned Judge relied on admissions made from the Bar by Mr. Ayoade, learned counsel for the defendants that “Forms 40 and 41 were served on Akinde, that only Form 40 was served on Adeyemi, and that only Form 41 was served on Ijeh.”
I have examined the record of appeal before us. On page 112 lines 24 to 28 appears the following:

“Ayoade submits application not properly brought because section 54 S rC. Process Law, Order 8 ru. 13. order 35 not complied with, conceded Form 40 served on Adeyemi and Akinade in May 1983. Non was served on Ijeh on 26.5.83. Motion paper served on M.A. Ayoade of Counsel. On 3.6.83 Form 40 was served on Ijeh and Akinade.”

On 11th April 1983 when the order of interim injunction was made against both parties in the suit before the court, the 1st defendant, Mr. Ijeh was not recorded as being present in court. Thus, in effect, the order was made in his absence. Under rule 13(1) of Order 8 of the Judgments Enforcement Rules he must be served with Form 40 and a copy of the order. This was not served on Mr. Ijeh until 3/6/83 (according to his counsel) and after the application for committal had been filed and called up for hearing.
Similarly, Messrs Adeyemi and Akinade not being named parties to the suit but servants or employees of the 2nd defendant Union must also be served with a copy of the order endorsed with a notice in Form 40. This was not done until May 1983 according to their counsel, Mr. Ayoade. Even then, what date in May 1983 was not indicated. It could have been after the letters complained of had been signed by them. The learned trial Judge did not verify this before proceeding to commit. I believe it is only in respect of acts done after one has become aware of an order of court prohibiting such acts that he can be punished for, not in respect of acts done in complete ignorance of an order of court restraining him from so doing. There is no admission by counsel that Form 41 was ever served on any of the alleged contemnors.
In the circumstance, it cannot be said that there had been compliance with Order 8 rule 3 of the Judgments Enforcement Rules before the learned Judge proceeded to consider the merits of the application for committal. Issue (a) must, therefore, be resolved in favour of the appellants.

On Issue (b) the order of injunction related only to the duties and responsibilities of the Executive of the U. I. Branch of the 2nd defendant Union. The duties and responsibilities of a branch executive vis-a-vis those of the Central Body are matters for the Union Constitution. It was for the applicants for committal to show that by writing the letters complained of the alleged contemnors were performing the duties or assuming the responsibilities of the branch executive under the Union constitution. That was never shown nor was a finding on such a vital issue made by the trial Judge. The result, in my respectful opinion, is that it was not shown beyond reasonable doubt that the appellants disobeyed the order of injunction made by the lower court.

In paragraphs 10 and 11 of the affidavit of the 1st plaintiff in support of the application for committal he averred thus:

“10. That the Defendants/Respondents despite the pendency of the application for injunction and the substantive suit went on to purchase at the cost of N8,250 a Datsun Nissan E 23 Bus for the use and control of the controversial Executive Committee led by Mr. S. O. Ojo. See attached Exhibits E and F.
11. The attention of the Honourable Court was drawn to the said vehicle on 21/3/83 when it was brought to the premises of the Court by the supporters of the Defendants/Respondents.”

I find it difficult to understand what the purchase of a van in March 1983 got to do with an order of injunction made in April 1983. It is my conclusion that issue (b), too, must be resolved in favour of the appellants.
In the net result, the appeals of Emmanuel Ijeh and Peters Adeniyi Adeyemi against their conviction for civil contempt of court must be allowed. The conviction and sentence passed on them are hereby set aside. The fines, if already paid, are to be refunded to the appellants.
The two appeals herein having, in effect succeeded, I order that each party is to bear his or its costs of both the appeals and the trial in the court below. The order for costs made against the plaintiffs by Sijuwade, J. on 30th April 1984 is hereby set aside.

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Other Citations: (1987) LCN/0033(CA)