Alex Oladele Elufioye & Ors V. Ibrahim Halilu & Ors (1990)
LawGlobal-Hub Lead Judgment Report
AWOGU, J.C.A.
Two interlocutory appeals have reached this court from the decisions of Adeniji, J., and Segun, J., in the above suit. The first, dated 5th December, 1988, was in respect of the discharge of an ex-parte order in favour of accelerated hearing. The second, dated 7th February, 1989, was, after Segun, J., took over, the refusal to dismiss the claim in limine for reasons given in the motion dated 19th December, 1988. Both judgments were to have been delivered together but for the request that the second appeal be heard by the full court in view of the conflicting decision of this court with regard to the Rule in Foss v. Harbottle (1843) 2 Hare 461. As a result, the appeal in respect of the discharge of the ex-parte injunction had to be disposed of earlier. The present judgment by the full court is in respect of the second appeal.
The plaintiffs and the defendants are members of National Union of Banks, Insurance and Financial Institutions Employees (NUBIFE, for short), the other parties being their bankers. The plaintiffs brought an action against the defendants claiming, inter alia, the following reliefs:-
“(v) An injunction restraining the 1st – 11th defendants and each of them from:-
(a) performing any of the functions of the respective office to which he was appointed in November, 1985;
(b) parading himself as an officer of the 18th defendant Union or as a member of the National Executive Council thereof;
(c) operating any of the Bank Accounts of the 18th defendant Union in any Bank or from disposing of, receiving, negotiating or in any way dealing with any of the assets of the 18th defendant Union.
(vi) A mandatory injunction directing the 12th defendant. The General Secretary of 18th defendant Union – to summon and service a National Delegates’ Conference for the purpose of Constitution in lieu of the Delegates’ Conference which should have been summoned for November, 1988.
(vii) An injunction restraining the 13th, 14th, 15th, 16th and 17th defendants from honouring any cheques or orders for payment of money or for the disposal of or other dealing in any Security or assets of the 18th Defendant Union except and until a proper National Delegates’ Conference shall have been held and fresh officers of the 9th Defendant Union shall have been elected for that purpose by the 18th Defendant Union.”
Later, the plaintiffs also filed a motion for an Interlocutory Injunction restraining the 1st – 11th defendants and each of them from:-
“1. (a) performing any of the functions of the respective office to which he was elected in November, 1985;
(b) parading himself as an officer of the Union or as a member of the National Executive Council thereof;
(c) operating any of the Bank Accounts of the Union in any Bank or from disposing of, receiving, negotiating or in any way dealing with any of the assets of the Union;
- An injunction restraining the 13th, 14th, 15th, 16th and 17th Defendants from honouring any cheques or orders for payment of money or for the disposal of or other dealing in any security or assets of the 18th Defendant Union except and until a proper National Delegates’ Conference shall have been elected for the purpose by the 18th Defendant Union pending the determination of the Motion on Notice filed herein or until further order.”
This was preceded by an ex-parte application, which was granted, and later, discharged. Thereafter, Chief Williams, S.A.N., for 1st, 3rd, 4th, 6th, 8th, 9th and 18th Defendants, gave notice of the following preliminary objections to the action:-
“(i) The court has no jurisdiction to entertain the action because, at common law an action of this nature does not lie at the instance of individual members of the 18th defendant union and the right of action conferred by Sec. 16(1) of the Trade Union Act, 1973, No. 31 is exercisable only at the instance of “any five or more members of the union.” Seven of the plaintiffs, to wit – the 2nd, 3rd, 4th, 6th, 7th, 9th and 10th plaintiffs have not subscribed to the funds of the 18th defendant union as prescribed by law and by Rule 4(1) of the Constitution of the Union.
(ii) In so far as the claims (or some of them) constitute legal proceedings instituted for the purpose of directly enforcing:-
(a) an agreement for the application of the funds of a trade union;
and
(b) an agreement binding on the National Executive Council in its relationship with the union;
the court has no jurisdiction to entertain such claims.
(iii) Even if (which is not conceded) the plaintiffs are qualified to sue under Sec. 16(i) of the Trade Union Act, 1973, they can only sue as such individuals in respect of a claim for an injunction to restrain any unauthorized or unlawful application of the funds of a trade union. Accordingly, the plaintiffs have no locus standi to claim any of the other reliefs contained in the originating summons.
In other words, it is not competent for the plaintiffs herein to invoke the jurisdiction of the court in this action.”
After hearing argument on the preliminary objection, Segun, J., dismissed it on February 7, 1989. Dissatisfied with the Ruling, the defendants represented by Chief Williams appealed against it on the following grounds:-
(i) The learned trial Judge erred in law in holding as follows:-
“The provisions of Rule 7(v) of the Constitution gave any member the right to initiate action at his own expense in connection with any breach of the Constitution. This to my mind is not only decisive but also conclusive of the issue of locus standi in this matter. I am bound in this case therefore to hold that the plaintiffs/respondents had a locus standi to institute this suit and apply for an order of injunction.”
Particulars of Error
(a) The provisions of the rules have no more than the force of a contract binding between or among the parties thereto. Such provisions can never, in law, over-ride the mandatory requirements of a statute such as are contained in Sec. 16 of the Trade Union Act.
(b) It is only the provisions of an enactment that are capable of derogating from the effect of Sec.16 of the Trade Union Act.
(ii) The learned trial Judge misdirected himself in holding as follows:
“The Constitution is registered under the Trade Union Act with the Registrar of Trade Union. Once this is done it has the force of law and forms part and parcel of the law of this nation. It was validly and completely registered and has become the article of faith among the union members. If it was duly registered quoestio cadit. See Nigerian Civil Service Union and Anor. v. O.C. Essien & Anor. (1985) 3 N.W.L.R. (Pt.12) 306 C.A.”
Particulars of Misdirection
(a) The registration of the rules of a trade union under the Trade Union Act does not give the registered rules “the force of law.”
(b) Even if (which is not conceded) the said rules do have the force of law they are invalid in so far as they are inconsistent with the provisions of the enactment contained in Sec. 16 of the Trade Union Act.
(c) The right of access to Courts of law is, on grounds of public policy, regulated by rules of law and not by private contract.
(d) In any event the rule 7(v) of the Union’s Constitution is ultra vires and invalid in so far as it is inconsistent with any rule of law such as the Rule in Foss v. Harbottle (supra).
(e) The case cited by the learned trial Judge in the passage quoted from his judgment is no authority for the proposition of law for which it was cited.
(iii) The learned trial Judge erred in law in holding (after citing 3 rules from the Constitution) that-
“The above three rules in the Constitution were blatantly violated by the defendants/applicants and the plaintiffs have an undoubted right to protect their interests.”
And later on, going further to hold that –
“It is the President of the Union together with the General Secretary and Treasurer who should run the accounts of the Union but right now only the President and the Treasurer are running it. Again Exhibit OE4 attached to the Originating Summons and issued to the 13th Defendant was signed by only two people instead of three. These are instances of the violation of the Constitution complained of by the Plaintiffs. ”
Particulars of Error
(a) At the stage of the proceedings when he made the pronouncements cited above, the learned Judge has heard no arguments whatsoever from the appellant’s counsel on the subject-matter of the said pronouncements.
(b) The pronouncements in question were a determination of some of the substantive issues raised in the Originating Summons before him.
(c) The questions raised by the Preliminary Objection of the Appellants before the learned trial Judge do not require a determination of or an adjudication upon the merits of the claims on the Originating Summons or upon the matters upon which he made the aforementioned pronouncements.
(d) In the premises, the decision of such issue at this interlocutory stage was contrary to the numerous guidelines laid down by this Court and by the Supreme Court.
(iv) The learned trial Judge erred in law in failing to observe that in (a) Oduduru v. National Union of Hotel & Personnel Services Workers (unreported) FCA/L/226/83 delivered on 30/3/83; (b) Nigerian Civil Service Union v. Essien (1985) 2 N.W.L.R. (Pt.12) 306 C.A., and were all decisions of this Court where the impact of Sec.16 of the Trade Union was neither raised nor considered or decided.
Further Particulars
(a) The High Court is only bound under the doctrine of stare decisis by propositions of law which form the basis of the judgment of this Court or of the Supreme Court. The High Court cannot be held bound by a proposition of law involving the effect of an enactment which was never considered by this Court.
(b) It is trite law that in exercising its appellate jurisdiction parties before this Court are bound by issues raised in their grounds of appeal and so, before the High Court can be held bound by a decision of this Court on a point of law, it must satisfy itself that that point was raised and determined by this Court.
(c) The first case in which this Court first adverted to Sec. 16 of the Trade Union Act was probably in the case of Imagie v. Sodade (unreported) CA/L/184/87 delivered on 24/1/89; [1989] 4 NWLR (Pt.114) 250.”
The dissatisfied defendants filed and exchanged briefs with the plaintiffs/respondents. Aka-Bashorun, counsel for 2, 7, 10-12 and 18 defendants, also filed a Brief on behalf of his clients. According to the defendants/appellants, the issue for determination are as follows:-
“(i) Whether it was competent for the learned trial Judge to have determined in his ruling Of/the Appellants’ Preliminary Objection that certain rules of the Constitution were blatantly violated by the said Appellants.
(ii) Whether the decision in Oduduru’s case was given per incuriam and, if so, whether it ought to be over-ruled.
(iii) Whether the Constitution of a trade union, when registered, has the force of law;
(iv) Irrespective of whether or not the Oduduru case was rightly decided, whether in the light of the provision of Sec. 16 of the Trade Union Act, 1973, it is permissible for ten individuals who allege that they are members of the union to sue for the reliefs claimed by the plaintiffs in this action.”
According to the Plaintiffs/Respondents, the issues are as follows:-
“(i) Can the right conferred on its members by Rule 7(v) of the Constitution of the Union be nullified by the Rule in Foss v. Harbottle (supra)?
(ii) Does Sec.16 of the Trade Union Act, 1973 affect the decisions given by the Court of Appeal in the Oduduru case or the Nigerian Civil Service Union case?”
The defendants represented by Aka-Bashorun did not set down any issues for determination.
As there is hardly any disagreement over the issue for determination in this appeal, I accordingly adopt the same. At the oral hearing, Chief Williams, S.A.N., for the Defendants/Appellants, adopted his brief. He referred to the four issues for determination and said that the first was whether the trial Judge should not have avoided the pronouncement complained of in his ruling on the preliminary objection when he said that certain rules of the constitution of the Union were blatantly violated by the said Defendants/Appellants. All the other three issues, he said, hinged upon Section 16(i) of the Trade Union Act, 1973, and the Rule in Foss v. Harbottle (supra). The combined effect of both was that the present Plaintiff/Respondents lacked locus standi in respect of the claim. He said that the provision in the Constitution of the Union to the effect that any member may sue was like enlarging the jurisdiction of a court of law, contrary to Section 16(i) and the Rule in Foss v. Harbottle (supra). He said that the only judgment of this Court which touched directly on 16(i) of the Act did not involve the application of the rule in Foss v. Harbottle (supra). Three other decisions of the Court however appear to be per incuriam. He referred to the decision in Oduduru where this Court held that a party was entitled to sue for any infringement if the Constitution of the Union so provided. In that decision, however, no consideration was given to the Rule in Foss v. Harbottle (supra). The other two decisions were Agbonikhena v. Egba (1987) 2 N.W.L.R. (Pt.57) 494 C.A., and the Nigerian Civil Service Union v. Essien (1985) 3 N.W.L.R. (Pt.12) 306 C.A. He urged the full Court to hold that all three decisions were per incuriam and to pronounce Section 16(i) as an exception to the Rule in Foss v. Harbottle (supra). He referred to the claim and submitted that only the Union or a majority of the members of the Union could sue, not a minority. The Plaintiffs in the instant appeal must therefore show some injury suffered individually by each of them and not an injury suffered by the Union. He further submitted that the rules of the Union do not have the force of law. Mrs. Obe, for the Plaintiffs/Respondents, adopted her brief of argument. She said that Section 16(i) of the Trade Union Act conferred locus standi on any five or more members of the Union to sue. The plaintiffs in the present action were ten members of the Union. She also contended that claims v(c) and (vii) were within the ambit of Sec. 16(i) and so the entire claim of the plaintiffs could not be said to be incompetent. She submitted that the agreement in Rules 7(v) of the Union’s Constitution took the issue of locus out of the Rule in Foss v. Harbottle (supra); Foss v. Harbottle (supra) did not deal with any clause similar to Rule 7(v) of the Union and so was not predicated upon such agreement. She referred to Oduduru, Agbonikhena and Essien and submitted that all three decisions of this Court supported her submission in respect of Rule 7(v) of the Union’s Constitution. She submitted that there was no law which provided that Foss v. Harbottle could not be excluded by agreement of the parties. She said that Section 16(i) was considered in Agbonikhena and could not therefore be said to be per incuriam. Foss v. Harbottle (supra) was also raised in Oduduru and Essien and so were not per incuriam. She submitted that this Court was therefore bound by its three previous decisions on the point. All three decisions, she said, were agreed that the contract of agreement was binding on the parties. She urged the Court to stand by its former decisions and to dismiss the objection.
Aka-Bashorun also relied on his brief filed out of time but in respect of which he sought and obtained the order of the Court to deem it as properly filed. He submitted that the right to join a Union in Nigeria was statutory. He referred to Section 37 of the 1979 Constitution which preserved the right to join a Trade Union. This being so, Rule 7(v) was binding on the members of the Union. He said that Foss v. Harbottle (supra) was a common law rule which could not therefore derogate from a constitutional right. He referred to Schedule (i) and Section 5(vii) of the Trade Union Act 1973 under which the constitutions of Trade Unions must comply with the Act itself. He said that, in consequence, they acquired the force of law. He submitted that the rule in Foss v. Harbottle (supra) did not apply to the claim before the lower court and urged the Court to over-rule the preliminary objection.
In his reply, Chief Williams compared what transpired in Re-Adadevoh and in Re-Williams to what has happened in Oduduru and Egba. In each case, the issue was not closely examined in the first case and so held to be per incuriam. He referred to Cheshire’s Private International Law, 10th Edn .. pp.212-214, on choice of law, which he said was permissible in terms of jurisdiction, but submitted that parties cannot agree as to the circumstances in which a court should, or should not, have jurisdiction. He cited in support Heyting v. Dupont (supra), p.1192. He said that if Rule 7(v) were allowed to stand, it would cover the field and render Section 16(i) of the Act meaningless. He said that Sec. 16(i) modified the common law hence even the Attorney-General of the Federation may sue thereunder. He referred to Emiola on Nigerian Labour Law, at pages 199-201. He said that the fact of registration of the Constitution of Unions cannot give the regulations of a Union the force of law. Judgment was thereafter reserved.
An aspect of this case which again calls for comment is the issue of who represents NUBIFE, now a divided house. The resolution of the issue is clearly important in the context of Foss v. Harbottle (supra). When the issue of representation was first raised by way of an objection, this Court, in a Ruling dated 9/5/89, observed per Akpata, J.C.A.:-
“It is beyond question that there are at least two factions in the Union. This is vividly brought out by the fact that Chief Williams is representing the 1st, 3rd, 4th, 6th and 9th defendants, while Mr. Aka-Bashorun is representing the 2nd, 7th, 10th and 12th defendants. The plaintiffs who are also members of the Union are challenging the validity of the 1st – 11th defendants as officers of the Union. What Mr. Aka-Bashorun wants this Court to do by implication is to declare the faction represented by him as the authentic Union. In effect the faction he represents is trying, if I may say so, to gain in the roundabouts what it has obtained in the swings. It seems to me that where there are apparently two or more factions in any organisation such as a Trade Union, the question as to which of them is the authentic Union must first be resolved by due legal process in an appropriate forum before an application of this nature can best be dealt with by an Appeal Court…”
The Court concluded, again per Akpata, J.C.A.:-
‘It seems to me that there is nothing wrong in Chief Williams and Mr. Aka-Bashorun announcing themselves as representing the 18th defendant, the Union. Stopping either of them from doing so is to recognise at this stage without justification one of the factions as the legitimate Union.’
Having thus exited from imminent danger, the Court proceeded to hear, on its merits, the objection as to the competency of the suit. While Chief Williams urged the lack of competency because the Union was not the plaintiff, Aka-Bashorun urged contra, also for the Union. Indeed, it was as if Aka Bashorun was playing the role of amicus curiae. Normally, the position should have been that even where there are conflicting representations, the most senior counsel leads, and speaks, for the team. I certainly have no doubt in my mind that what has transpired here is not good for the image of the profession, but whether or not it is permissible, I do not know. Be that as it may, and even without going into the merits, this situation appears to knock the bottom out of the objection of Chief Williams, since it raises the question as to whether he represents the Union or its majority, while Aka-Bashorun represents the Union and its minority. Although the issue is yet to be resolved by due legal process, yet and clearly Foss v. Harbottle (supra) cannot now be invoked without the issue of majority and minority being resolved one way or the other. To so hold at this stage would amount to argumentum abinconvenienti. Also, in view of the challenge to earlier decisions of this Court as ‘per incuriam,’ it would be unfair to rest the decision in this appeal on the above premise.
Before going further, Chief Williams challenged a statement in the Ruling of Segun, J., to the effect that the Appellants (other than NUBIFE) had violated the Constitution of the Union. As he rightly pointed out, a trial Judge should avoid a determination in limine of an issue for trial, as such preliminary determination may prejudice the substantive case. One of Chief Williams grounds of objection to the suit was stated in the Ruling as follows:
‘(2) That in so far as the claims (or some of them) constitute legal proceedings instituted for the purpose of directly enforcing:-
a) an agreement for the application of the funds of a trade union; and
(b) an agreement binding on the National Executive Council in its relationship with the Union, the Court has no jurisdiction to entertain such claims.’
This being so, the learned Judge had to examine the affidavit in support of the originating summons for the allegations so made in support, which formed the reasons for the objection to jurisdiction and stated as follows (at page 6):-
Rule 10 (iii) of the Constitution of the Union provides:-
Members of the National Executive Council, excepting full-time officials, shall be elected and hold office for a period of three (3) years and shall be eligible for re-election.’
Rule 15(vi) of the Constitution also provides:-
‘No candidates for any elective national office position in the Union shall be allowed to run for anyone office in the Union for more than two consecutive terms.’
Rule 16(iv) of the same Constitution also provides:-
‘He (that is the President of the Union) shall together with the General Secretary and the Treasurer operate the accounts of the Union in accordance with the provisions of the Constitution’
(words in brackets are mine)
The above three rules of the Constitution of the Union were blatantly violated by the defendant/applicants and the plaintiffs have an undoubted right to protect their interest.’
The above findings of ‘blatant violation’ as alleged in the affidavit in support of the originating summons enabled the learned Judge to hold that this being so, he had jurisdiction to entertain the claim. Unlike the situation in interlocutory applications settled on affidavit evidence and generally on disputed facts, which must not be tried twice over and so must avoid any determination which may prejudice the substantive case, the findings of fact here were necessary for a determination as to whether or not to strike out the claim.
They were not findings as would prejudice substantially the main trial, for the allegations of breach of the Constitution support some, but not all, of the claims of the plaintiffs against the defendants.
Similarly, Aka-Bashorun postulates, and the learned Judge appeared to have agreed with him, that as Trade Unions must be registered and their Constitutions comply with the provisions of the 1973 Act, membership of such Unions not only thereby becomes constitutional right under Sec. 37 of the 1979 Constitution, but also the very registration of the Constitution of the Union gives it the force of law. This proposition of law calls for scrutiny. The learned Judge in his Ruling, put it thus:-
“The constitution is registered under the Trade Union Act with the Registrar of Trade Union. Once this is done it has the force of law and forms part and parcel of the law of this nation.”
Nothing can be farther from the truth. It is as if in a bid to bring sanity into Trade Unionism in Nigeria by the 1973 Act, such Unions thereby acquired a higher status under the law of the land than other associations based on ethnicity, college/university attendance, or even, social associations. By this interpretation, the constitution of NUBIFE would become subject to judicial notice. This cannot be so, and whether or not Rule 7(v) of the Constitution of NUBIFE can stand vis-a-vis the Rule in Foss v. Harbottle (supra) must find an anchor elsewhere, not on its sacrosanctity. Having disposed of these two points, I now go into the question of per incuriam raised by Chief Williams. The phrase, according to Evershed, M.R., in Morelle Limited v. Wakeling (1955) 1 All E.R. 708 at 718, means that:-
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.”
In other words, it is euphemism for judicial ignorance. Like the Emperor who refuses to accept that he was transparently naked in his new robes, a learned Judge must not admit being ignorant! At the lower court, reliance was placed on the decision of this Court in Oduduru v. National Union of Hotels etc. (FCA/L/126/83 of 13/3/85 (unreported), Nigerian Civil Service Union v. Essien (1985) 3 N.W.L.R. (Pt.12) 306 C.A., and Agbonikhena v. Egba (1987) 2 N.W.L.R. (Pt.57) 494 C.A. These decisions support the view that where a Union by its constitution confers a right to sue on a member, the Rule in Foss v. Harbottle (supra) cannot apply. As Ademola, J .C.A., said of a similarly worded Union rule is Oduduru (supra):-
“There is the Constitution of the Union which in Article 5 Rule 5, as noted in the submission of learned counsel for the Appellant in his brief, conferred on every member of the Union the right of action at the member’s expense in connection with any breach of the Constitution of the Union. This, to my mind, is not only decisive but also conclusive of the issue of locus standi in this matter.”
Although all the subsequent decisions of the Court appear to follow Oduduru it is the contention of Chief Williams that the Rule in Foss v. Harbottle (supra) was not fully discussed in all the decisions and, to that extent, the decisions were per incuriam. In addition, while this Court dealt with the provisions of Section 16(1) of the Trade Union Act in Imagie & Ors. v. Sodade & Ors. (1989) 4 N.W.L.R. (Pt.114) 250, the case did not involve a consideration of the Rule in Foss v. Harbottle (supra).
A careful reading of Oduduru (supra) will no doubt show that Foss v. Harbottle (supra) was brought into play in the argument of both counsel in the case, after which, Ademola, J.C.A., said (see page 12):-
“The issue in this appeal is a simple one. Is the Judge right to say here that the Appellant have no locus standi to bring the action? Put differently, is the rule in Foss v. Harbottle (supra) applicable at all after a finding by him that the action of the Union Executive in passing a resolution to dissolve itself at its Oguta Meeting is ulta vires of the 1st Respondent Constitution and also the meeting at Kano not being in accordance with the Constitution of the Union…Asquith, L.J., put it very well in Edwards & Anor. v. Halliwell & Ors. (supra) and I agree with him thus:-
“When in circumstances such as I have described a remedy is sought by an individual, complaining of a particular act in breach of his rights and inflicting particular damage on him, it seems to me the principle in Foss v. Harbottle (supra), which has been so strongly relied upon by the defendants, does not apply either by way of barring the remedy or supporting the objection that the action is wrongly constituted because the Union is not a plaintiff.”
It is therefore difficult for me to hold that Foss v. Harbottle (supra) was not considered in Oduduru (supra). Then followed Essien (supra), a few months after Oduduru. Although Foss v. Harbottle (supra) was not cited, the Court, per Nnaemeka-Agu, J.C.A. (as he then was), said (at page 315):-
“This is an agreement which the members of the Union have reached among themselves, inspite of Section 6(6)(b) of the Nigerian Constitution. In FCA/L/226/83, Benson Oduduru & Anor. v. National Union of Hotels etc. & Ors. of the 13th March, 1985 (unreported), this Court was faced with the problem of construing a similar provision in the constitution of another Union. It unanimously held (per Ademola, J.C.A.) as follows:-
‘there is the Constitution of the Union which in Article 5 rule 5, as noted in the submission of the learned counsel for the appellant in his brief, conferred on every member of the Union a right of action at the member’s expenses in connection with any breach of the Constitution of the Union. This to my mind is not only decisive but also conclusive of the issue of locus standi in this matter.’
I am bound by this opinion until it is reversed by the Supreme Court.”
By approving of the decision in Oduduru (supra), the rule in Foss v. Harbottle (supra) was similarly considered and approved, albeit sub silentio. Oduduru and Essien were followed, two years later, by Agbonikhena v. Egba (1987) 2 N.W.L.R. (Pt.12) 494. Agbonikhena is more akin to the instant appeal. Counsel for the parties relied upon, and against, the rule in Foss v. Harbottle (supra), although Kolawole, J.C.A., did not pronounce upon it. He did, however, refer to the similar situation in Oduduru (supra), and said (at page 506):
“Article 5(8) is similar to article 5 rule 5 considered in the case of Benson Oduduru & Anor. v. National Union of Hotels etc. & Ors. FCA/L/226/88 of 13/3/85 unreported. There, Adenekan Ademola, J.C.A., held as follows:-
‘This to my mind is not only decisive but also conclusive of the issue of locus standi in this matter.’
It is my view that having regard to the provisions of article 5(8) of the Constitution of the 9th appellant Union the Respondents who are members of the 9th appellant Union have locus standi to institute the present proceeding against the defendants.”
By approving of the decision in Oduduru (supra), Kolawole, J.C.A., cannot be said to be unaware of Foss v. Harbottle (supra), which counsel cited and which he considered in his summation of the address. This fact was made a ground of appeal in Uzor & Ors. v. Nigerian Stores Workers Union (1973) 9 – 10 S.C., 35, where Kassim, J., heard argument on Foss v. Harbottle (supra) but did not pronounce on it in his judgment. To this, Udo Udoma, J.S.C., said (at page 53):-
“The whole matter might well have been treated as the internal affairs of the Nigerian Workers Council on the authority of Foss v. Harbottle (supra) which the members could easily have resolved internally among themselves. In his ruling, the learned trial Judge appeared to have drawn heavily from Edward & Anor. v. Halliwell & Ors. (1950) 2 All E.R. 1064 in which it was held that as the matter in question in that case was not a mere irregularity in the internal management of the Union concerned, but a matter of substance, tinctured with oppression, the court would grant the plaintiff therein relief, if it was proper to do so, as distinct from the decision in Foss v. Harbottle (supra). But in relying on this authority, the learned trial Judge over-looked the fact that in that case, to start with, the proper parties were before the court.”
Kolawole, J.C.A. may not have dealt with and pronounce upon the Rule, but it is difficult to agree that Foss v. Harbottle (supra) was not considered in all three decisions of this Court considered above. This, then, brings me to a consideration of Section 16(1) of the Trade Union Act, 1973, which states as follows:
“Without prejudice to the right of any person having a sufficient interest in the relief sought to apply for an injunction to restrain any unauthorised or unlawful application of the funds of a trade union, an injunction restraining any such application of the funds of a trade union may be granted by the appropriate High Court upon the application of the Attorney-General of the Federation or of the Registrar, or of any five or more members of the Union.”
Chief Williams submitted that this provision enables not less than five members of the Union to sue notwithstanding the Rule in Foss v. Harbottle (supra), thereby confirming the fact that there is no way whereby any agreement of the Trade Union can be construed to alter or abolish the Rule in Foss v. Harbottle (supra). The power to sue under the section, he submitted, was so conferred because the plaintiffs would otherwise have lacked the necessary locus standi or competence to prosecute the claim. As he put it in his brief:-
“If, therefore, Section 16(1) of the Trade Union Act defines or limits the scope of area of permissible exclusion of the Rule in Foss v. Harbottle (supra), is it competent for a trade union to enlarge that scope or area by an agreement between or among themselves? The question only has to be posed for the answer (in the negative) to be seen. That being so, it is respectfully submitted that the Oduduru line of cases must be regarded as having been decided per incuriam. This is because the ratio decidendi or those cases is that what is contained in one of the rules of the constitution of the Union enables any member of the Union to sue the Union in respect of any matter concerning a breach of the provisions of the Constitution which is clearly an enlargement of the scope of Section 16(1) of the Trade Union Act in relation to the operation of the Rule in Foss v. Harbottle (supra).”
In my view, there is fallacy in this argument. In the first place, as argued by the plaintiffs/respondents, no provision similar to Rule 7(v) of the Constitution of the 18th Defendant was in issue in Foss v. Harbottle (supra). Nor do the Articles and Memorandum of Companies in Nigeria provide for the equivalent of Rule 7(v). Indeed, it is the absence of such a provision that, no doubt, gave birth to the Rule in Foss v. Harbottle (supra), which was a Rule based on common sense and natural justice. Secondly, to read the Rule in Foss v. Harbottle (supra) into the provisions of Section 16(1) of the Act is erroneous. I say so because there is no interpretation of the Rule throughout the Commonwealth where, without being a member of a Company or Union, a third party (such as the Attorney-General of the Federation or the Registrar of Trade Unions) can sue even in the limited situation of prevention of wrongful dissipation of Union funds, as is the case under Section 16(1). To my mind, the provision is peculiar to Nigeria, having regard to the manner in which in the past the funds of Unions were used to promote interests other than those of the Union itself. For this reason, therefore, even if the Union connives, the Registrar of Trade Union or the Attorney-General of the Federation – third parties – may seek an injunction to stop the squandermania. Similarly, no less than five members of the Union may do so. I do not therefore agree that Section 16(1) of the Trade Union Act contemplated the common law rule in Foss v. Harbottle (supra) when it so provided. Indeed, it is for this reason that Section 16(1) is qualified by the provision, “Without prejudice to the right of any person having a sufficient interest in the relief sought,” which clearly limits the intervention by either the Registrar of Trade Unions or the Attorney-General of the Federation. Although the section was not considered in the three decisions under review, it was hardly applicable. And even if it does, no less than nine plaintiffs in the instant appeal are challenging the Union (i.e. NUBIFE) and, in addition, not all the claims can be said to be caught by the provisions of Section 16(1) of the Act. This is not to say that Chief Williams, this time with the advantage of foresight, not hindsight, is raising a false alarm. I can see the situation in which a minority shareholder, with a claim that has nothing to do with his ‘little’ shareholding, seeks to hold a Company or Union to ransom and prevent the payment of wages to employees who are not shareholders, by suing in defiance of the Rule in Foss v. Harbottle (supra). Indeed, in the course of the protracted hearing of this appeal, Chief Williams did make the point that if only the funds of the Union are unaffected so that the workers may be paid their due wages, the luxury of the present legal disquisitions would perhaps be more palatable to all concerned. I am totally in agreement. Still, if NUBIFE chooses, like the proverbial seamless garb, to be the subject of casting of lots as to who controls it, then the workers of NUBIFE must not only enjoy but abide by the result of the game, though side-lined. In sum, the objection to the competency of the suit must fail, and is hereby dismissed. The trial will, once again, resume before Segun, J. As all parties to the present appeal, save the Bankers, are members of NUBIFE.
I make no order as to costs.
Other Citations: (1990)LCN/0102(CA)
