The Reg. Trust. Of National Ass. Of Community Health Practitioner Of Nigeria & Ors. V. Medical And Health Workers Union Of Nigeria & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

In the Federal High Court holden in Ilorin, the 1st appellant sought the following reliefs 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.JB/147/1176 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 Organisation for the respondents to refuse to register the applicant as a Senior Staff Trade Union.

(iv) Declaration that it is ultravires 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 reliefs 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 incorporated Trustees under part C. The copy of the certificate of registration dated 18th February, 1997 is attached as exhibit NAC 1.

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.
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 itself registered as a trade union.
11. 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.
12. 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 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.

(iv) 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 applicants’ 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 1. 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), (ii) 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 reliefs sought and granted by the trial court in favour of the appellant.”

A single issue for determination was raised in the 2nd 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 Nigeria.”

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 reliefs 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. Yobe State Council.

(c) Comrade Muhammad Kadir. Chairman. Gombe State Council.

(d) Comrade Dambara Dogo. Chairman. Kaduna State Council.

(e) Comrade Al-Mumini. Chairman Kwara State Council.

(f) Comrade Musa Das. Chairman. Bauchi State Council.

(g) Comrade Ahmed Idris. Chairman. Jigawa State Council.

(h) Comrade Halilu Ismaila. Chairman. Zamfara State Council.

(i) Comrade A. Joseph. Chairman. Enugu State Council.

(j) Comrade U. U. Chairman. Taraba State Council.

(k) Comrade Hussan Obata. Chairman Nasarawa State Council.

(l) Comrade Ore. Chairman. Ogun State Council.”

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 imponant averment was not denied. It is therefore crystal clear that the 3rd respondent indeed belonged to an existing trade union i.e. the appellant. (Italics mine for emphasis)

It is on this basis, my Lords, that 1 hold that the reliefs numbers (i), (ii) and (v) granted by the lower court cannot stand. I also wish to C 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 reliefs 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 would the Registrar or Minister deny the workers Trade Union status if the government itself has carved the body out as a separate profession. It was avelTed by the Minister or Registrar that there was an existing Trade Union for that purpose but the bottom has been knockcd out of this contention by the letter of the Minister himself. exh. NAC 5 in paragraph

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.

(vii) 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.

(viii) 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 Nigeria, especially clause 20 thereof. The said code of conduct is hereby attached as Exhibit NACH 8.”

Looking at the depositions III 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 supra paragraphs (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 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 form 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 ultra vires 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 v. 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 me. 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 I 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 2 Ors. v. Registrar of Trade Unions 1985 1NWLR part 4 pages 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 J.S.C 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 propose 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 High Court of Bendel State occurred in 1980, during the second republic, and the judgment of that court was in February 1982, a time that also falls within a democratic dispensation. However, the judgments of the Court of Appeal and the Supreme Court were delivered during the military dispensation. Indeed the circumstances, the facts and the out come of the cases and appeals at each step of the litigation as they transpired in both cases are the same, with no difference whatsoever, as the 1st appellant would want this court to believe, inspite of the minor difference that another union is alleged to be contending with the 3rd respondent for the representation of the members of the Association. As a matter of fact that aspect is rather inconsequential to the overall facts. In this respect, I refuse to believe that the outcome was influenced by the military dispensation as it is completely out of tune. As a matter of fact if one reads the excerpt of the Osawe’s case from which the court below found solace, and which I have reproduced supra, it will be seen that the learned Justice of the Supreme Court did take into consideration democratic society and dispensation. My perception of this discussion is that it did not matter whether the dispensation of the period of the judgment of the Supreme Court was military or democratic; the most important thing is that the existing laws were thoroughly considered and the correct interpretations were given to them. Once a court gives the provisions of a law that is not ambiguous the grammatical and ordinary interpretation to conform with the intent of the legislature when the law was passed, an appellate court cannot fault such interpretation, for the cardinal principle of interpretation would have been met with by the lower court. See Adisa v. Oyinwola 2000 10 NWLR part 674 page 116, Ifezue v. Mbadugha 1984 I SC NLR page 42), Jammal Steel Structures Ltd v. A.C.E. 1973 II S.C. page 77. and Shell Petroleum Development Co. (Nig.) Ltd. v. Federal Board of Internal Revenue 19968 NWLR part 466 page 256.

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 (I) 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 (I) 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 m 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 !NEC’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. reliefs 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 Nigeria, it not having been enacted into law by the National Assembly. The lower court declared that the relief was granted in error by the trial court, and in this respect the learned counsel for the respondent has submitted that the court below was right because the question whether or not the said International Labour Organisation conventions have been domesticated in Nigeria is an issue of fact to be proved by evidence, and in the instant case, no such evidence was before the learned trial court. See Abacha v. Fawehinrni (supra). I don’t subscribe to the argument of Learned Senior Advocate that the issue of whether ILO conventions have been domesticated never arose before the trial court, as issue was not joined on this point. The point is, relief no. (III) in the appellant’s application is as clear as crystal, that even a law student in the university would immediately tell a lay man that the declaration sought in respect of the refusal to register the 1st appellant as a trade union was to render the refusal as unconstitutional etc, as some conventions International Labour Organisation have been breached. It goes without saying that the basis for that relief was the International Labour Organisation, in which case it was incumbent on the 1st appellant to place the evidence of the domestication of that law and its applicability to Nigeria, the law being an international one. Its proof of domestication in Nigeria is very important if any court in Nigeria is to invoke and apply it to any litigation before it. It is of paramount importance that any party who raises an issue or a law must show and convince the court of the efficacy of reliability and applicability. After stating this said relief no. (3) supra, the 1st appellant made no reference to the convention upon which it predicated it, it was conveniently forgotten, as though its success was automatic. That most probably lent credence to why the learned trial Judge thought once the relief was there, it must be granted, and he so granted it. Ironically Learned Senior Advocate argued in his brief of argument that the issue of whether or not the ILO conventions have been domesticated never arose before the trial court, as issue was not joined on the point. This I must say is rather ridiculous, for I would want to believe that the position of the law is unchanged that a party who seeks a court’s order must do all in its power to establish that it deserves such order, and not expect the adversary to nudge it into waking up to its responsibility.

As a matter of fact, contrary to Learned Counsel’s contention, the issue of domestication of the I.L.O. convention did crop up in the arguments of Learned Counsel.

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:-

“12 (1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.”

In so far as the I.L.O. Convention has not been enacted into law by the National Assembly it has no force of law in Nigeria and it cannot possibly apply. See also Abacha v. Fawehinmi (2000) 6 NWLR (PART 660) 228 AT PP. 288 – 289 where OGUNDARE, J.S.C of blessed memory had this to say:-

“Suffice to say that an international treaty entered into by the government of Nigeria does not become binding until enacted into law by the National Assembly. See Section 12 (1) of the 1979 Constitution which provides:………..”

As can be seen from the above, the learned justice took the pains of expounding on the necessity of such international treaty or convention to be domesticated before it can be invoked and applied to cases in Nigeria. That is in fact what the learned trial judge should have done, rather than accept and grant the relief hook, line and sinker. In this vein issues (2) and (3) are resolved in favour of the respondents, and grounds (4) in the original notice of appeal and (2), of additional ground to which they relate fail, and they are hereby dismissed.

Now, to the last issue i.e. issue (4) supra. The sum total of the submission of the Learned Senior Advocate under this issue is the omission of the court below to give the 1st appellant’s counter-affidavit filed in opposition to the motion for joinder the attention it deserved. In order to consider the efficacy of this argument it is essential that I consider the depositions in the supporting and counter-affidavits, after reproducing them hereunder. The salient depositions in the affidavit in support are:-

“4. I am aware that there had been series of litigations between the Plaintiff/Applicant and the Applicant/Party seeking to be joined herein in respect of the reliefs the Plaintiff/Applicant in this

suit, is seeking before this Honourable Court.

5. I am further aware that the plaintiff/Applicant in his suit had on 29th July, 1997 constituted an action against the Applicant herein and the Rivers State High Court of Justice, Port-Harcourt, Judicial Division in suit No. PHC/I075/97 wherein the Plaintiff/Applicant sought unsuccessfully to restrain the Applicant, Medical and Health Workers Union of Nigeria from organising the members of the Plaintiff/Applicant for Trade Union purposes as their members…
6. I am aware that since this Ruling the Plaintiff/Applicant accepted that the Applicant herein has the excessive jurisdiction under the Trade Unions Acts to organize members of the plaintiff/Applicant and has continued to organize them till date.
7. I am further aware that under the Trade Unions (Amendment) Act, 1996 the Medical and Health Workers Union of Nigeria, the Applicant herein has been granted jurisdiction to organize Medical and Health Workers in all Medical and Health Institution.
8. I am also aware that the decision of the Respondents which the Plaintiff/Applicant is seeking the Order of this Honourable Court to quash as contained in the 1st Respondent’s letter reference No. ML. IB/147/1176 dated 19th February, 2003 specifically stated that under the existing Trade Union Acts, the Medical and Health Workers Union of Nigeria, the Applicant herein has exclusive jurisdiction to organise members of the Plaintiff/Applicant and therefore decline to register the Applicant as a New Trade Union.
9. All the reliefs now being sought by the Plaintiff/Applicant in this suit if granted by this Honourable court will affect the existing interest of the Applicant.”

In its counter-affidavit, the following depositions were sworn to at the instance of the 1st appellant. They read inter alia:-

“6. That I know as a fact that there is no provision in the Trade Unions Amendment Act 1996 or any other law which vests the party seeking to be joined the power to organize the applicant or its members.

7. That I know as a fact that there is nothing in the Trade Unions Amendment Act 1996 which prevents or precludes the applicant from being registered (sic) registration as a Trade Union.
8. That I know as a fact that the party seeking to be joined has no business whatsoever in the matter concerning the Registration of Trade Unions in Nigeria as this is within the purview and powers of the respondents in this case.
9. That I know as fact that the party seeking to be joined is a meddlesome interloper whose joinder will serve no useful purpose but to thwart the quick determination and expeditious delivery of judgment in this case which has been reserved to 5th December 2003 by the Honourable court after full arguments.”

The Learned Senior Advocate has in addition to the submission above submitted that on the basis of the affidavit evidence before the trial court, the 1st respondent was not a proper party to this suit, and the trial court and the court below were in error to have ordered her joinder. He relied upon the case of Green v. Green 1987 3 NWLR part 61 page 480. He further submitted that the court lacks jurisdiction to join a person whose presence is not necessary for that purpose, and cited the case of Ige v. Farinde 1994 7 NWLR part 354 page 42.

A careful perusal of the affidavit in support of the motion for joinder, especially paragraphs (5) and (6) supra shows that prior to this process the applicant i.e. 3rd respondent was involved in a suit with the 1st appellant in respect of trade unionism, as is evidenced by the documents exhibited and attached to the supporting affidavit. Paragraph (8) of the affidavit is very clear on the position, and interest of the 3rd respondent in the controversy of the registration of the 1st appellant as a trade union, and by paragraph (9) of same, the 3rd respondent has shown that its position will be jeopardized if the reliefs sought by the 1st appellant were granted. I have carefully perused the counter-depositions supra and I have not seen or discerned the effective controversion of the depositions in the supporting affidavit therein, not even paragraphs (6) and (7) of the supporting affidavit. It is instructive to note that an applicant who desires to be joined as a party to a suit is required to show that he will be bound by the ultimate result of the action, as the orders in the judgment will affect it, and its interest will be prejudiced if it is not joined. Another test is that the action may not be completely settled without the party sought to be joined as a party in the suit. In the appeal on hand it is clear from the affidavit evidence that it was necessary to join the 1st respondent. See Tunde Oshinrinde v. Ajamogun 1992 6 NWLR part 246 page 156, Oduola v. Coker 1981 5 S.C. 197, African Continental Bank PLC v. Nwaigwe 2001 1 NWLR part 694 page 304.

I agree that the learned trial judge did not specifically refer to the affidavit evidence in detail, but that is not to say that he did not advert his mind to the depositions in the two affidavits, as he did, as can be inferred from the following excerpt of his ruling, which reads thus:-

“I must say that the undisputed contention that the applicants in the main matter belong to the same trade union with the applicants herein weigh much on my mind. The applicants in the main matter seek to separate from them and form an independent trade union. In the light of this fact I cannot come to any other conclusion that they are a necessary party to a just determination of the main matter.”

“Bearing in mind the fact that I have held above that the depositions in the counter-affidavit did not essentially controvert or challenge the respondent’s depositions, I will state the position of the law that is trite that affidavit evidence that is neither challenged nor debunked remain good and reliable evidence which ought to be relied upon by a court.” See Attorney General Plateau State v. Attorney General Nasarawa State 2005 9 NWLR part 930, page 421, Badejo v. Federal Ministry of Education 1998 NWLR part 464 page 15, and Ex parte; Adesina 1996 6 NWLR part 442 page 254.

With this line of thought, I endorse the finding of the lower court (after it had considered the salient depositions in the supporting affidavit), which read:-

“By these averments, it is my considered view that the 1st respondent has disclosed sufficient interest in the claims/reliefs before the lower court, and the lower court, with respect, was right in joining the 1st respondent as a defendant in this case. It cannot be otherwise.”

I am of the view that it is not necessary to go further into the argument of the joinder as it will be over flogging the issue. This is not a case where this court will interfere with the discretion of the lower courts by reversing the order of joinder, as urged by the learned Senior Advocate, and so the cases of Megwalu v. Megwa1u 1994 7 NWLR part 359, page 718 and Udensi v. Odusote 2004 All FWLR part 215 page 377 relied upon are of no assistance. In the light of the above reasoning, I resolve this last issue in favour of the respondent. Grounds (5) and (6) of Appeal the issue covers must therefore fail, and they are hereby dismissed. The end result is that this appeal fails in its entirety and it is so dismissed. The judgment of the lower court is hereby affirmed.

Now, to the other appeal, which is that of the 2nd and 3rd Appellants, of which only one ground of appeal was filed, and from which an issue, (which I have already reproduced above) was formulated. The assertion of the lower court which learned counsel for the 2nd and 3rd appellants is attacking under this issue is thus:-

“In so far as the I.L.O. convention has not been enacted into law by the National Assembly it has no force of law in Nigeria and cannot possibly apply.”

The Learned counsel III treating this issue examined the relevant Conventions, relevant provisions of the Constitution of the Federal Republic of Nigeria 1999, the Trade Unions Act Cap. 432 1990 Laws of Federation of Nigeria (as amended), the Labour Act Cap. 189, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1990, and the Trade Union (Amendment) Act 2005. The provisions of the above read as follows:-

“1. Convention No. 87:- “Freedom of Association and Protection of Right to organize.”

2. Convention No. 98:- “Right to organize and collective Bargaining.”
3. Section 40 of the Constitution of 1999 stipulates the following:-

“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.”

4. The Trade Unions Act Cap 437 Laws of the Federation of Nigeria 1990 (as mended) stipulates the following:-

“A person who is otherwise eligible for membership of a particular trade union shall not be refused admission to membership of that union by reason only that he is of a particular community, tribe, place of origin, religion or political opinion.”

The Trade Disputes Act Cap. 432 Laws of the Federation of Nigeria 1990 (as amended) provides as follows in Section 2(1):-

“Where there exists any collective agreement for the settlement of a trade dispute, at least three copies of the said agreement shall be deposited by the parties thereto with the Minister-

a. In the case of collective agreement entered into before the date of commencement of this Act, within thirty days of that date; and

b. In the case of a collective agreement entered into on or after the date of commencement of this Act, within fourteen days of the execution thereof.”

Learned counsel for the 2nd and 3rd appellants reproduced the excerpt of the judgment of the lower court on the applicability of the ILO convention, (which I have already reproduced above), and proceeded to deal with the provision of Section 12 (I) of the Nigerian Constitution of 1999 (supra), by submitting that going by the ordinary connotation of the phrase ‘to the extent’ in the said section 12 (I) a treaty, convention or charter need not be wholly enacted into law as a compact for such provisions as it contains to be valid and enforceable as long as such are found in existing diverse enactment. The Learned Counsel placed reliance on the case of Abacha v. Fawehinmi (supra).

The reply of learned counsel for the respondent has already been dealt with and found on supra in the first appeal, so going through it again will result in repetition. The Learned Counsel for the respondent has argued that Counsel for the 2nd and 3rd appellants in the court of trial adopted the argument of the respondent to the effect that the trial court could not predicate its judgment on the ILO conventions that had not been domesticated in Nigeria, but changed his position in the court below and now before this court. The Learned counsel submitted that the conduct of the Counsel is procedurally wrong and should not be countenanced. He cited the cases of Edebiri v. Edebiri 1997 4 NWLR part 498 page 165, and Oredoyin v. Arowolo 19894 NWLR part 114 page 172. In the appellants’ reply brief of argument, it was argued that the case of Edebiri supra cannot avail the respondent, as the case is distinguishable from the instant case. It may well be that the facts and principles in both cases are not the same, but then one may wonder why the appellants made a U-turn and faced the opposite direction after the judgment of the trial court. As is evident on page 115 of the printed record of proceedings, Mr. Oputa-Ajie of counsel for the joined party, (now the respondent, but then the 3rd respondent) addressed the court on international labour organization thus:-

“On I.L.O See Abacha v. Fawehinmi (2000) 6 NWLR (part 660) 1 2000 4 SCNJ 400,422.The I.L.O 89 has not been satisfied, it is not a municipal law.”

Then on page 116 can be found the following, which Learned Counsel for the present appellants, (when it was his turn to address the court) said:

“Mr. Abidogun – I adopt submission of Mr. Oputa Ajieh. I have nothing to add.”

In the Court of Appeal Mr. Abidogun changed his position in as far as the ILO Convention was concerned as can be seen in paragraph 7.03 on page 359 of the printed record of proceedings. Then he appealed to this court on this issue of the applicability of the said ILO. I don’t think: this should be allowed, for a party is expected to be consistent in the case he puts forward before a court. It is not supposed to deviate from what he initially professes by changing the complexion of its argument.

However, the kernel of the appellants’ argument in this appeal to my mind revolves around the interpretation of Section 12 of the 1999 Constitution supra. Emphasis has been laid on the phrase; ‘to the extent’ to which such treaty has been enacted into law by the National Assembly! Learned counsel for the appellants has submitted that one of the cannons of the interpretation of a Constitution is that the true meaning of the words used and the intention of the legislature in any statute and particularly in a written Constitution, can best be properly understood if the statute is considered as a whole. He placed reliance on the cases of Archbishop Okogie v. The Attorney General Lagos State 2 NCLR 337, Adamu v. A. G. Borno State 1996 8 NWLR part 465 page 203 and Aqua Ltd v. Ondo Sports Council 1988 4 NWLR part 91 page 622.

I agree, but then it does not mean that extraneous matters should be imported into a constitutional provision to credit it with meaning different from what the legislature had in mind. To understand and appreciate a piece of legislation a court must not look beyond the periphery or precinct of the law to interpret it and give it the appropriate and correct meaning, even if it involves an over all analysis and consideration of other provisions in a particular enactment. See Income Tax Commissioners v. Pemse 1891 A. C. 534 at 543, and International Bank for West Africa Ltd. V. Imano (Nigeria) Ltd. & 1 Ors 1988 2 N.S.CC. page 245.

To say that because the words “shall have the force of law except to the extent” was used in section 12 (1) of the Constitution supra, simply admits that there is a qualification or proviso to the opening part of the provision is a misapprehension. Indeed this situation is a locus classicus of the necessity to read the whole of section 12 (1) as a whole. The use of the phrase ‘to the extent’ does not connote that a person with interest in the provision should fish around for other enactments that contain such provisions in order to make them valid and enforceable. In essence what the legislature meant or intended is that for a treaty to be valid and enforceable, it must have the force of law behind it, albeit it must be supported by a law enacted by the National Assembly, not bits and pieces of provisions found here and there in the other laws of the land, but not specifically so enacted to domesticate it, to make it a part of our law. To interprete similar provisions as being part of the International Labour Organization Conventions just because they form parts of some other enactments like the African Charter, and Peoples Rights etc will not be tolerated. See Abacha v. Fawehinmi’s case (supra).

In the light of the foregoing reasoning I resolve this issue in favour of the respondent. Its related single ground of appeal therefore lacks merit and it is dismissed. The appeal is definitely unmeritorious and is dismissed in its entirety. The judgment of the Court of Appeal, Ilorin Division is hereby affirmed. I assess costs at N10,000.00 in favour of the respondent against each set of the three appellants.

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SC.201/2005