The State V. Governor Of Osun State & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the ruling handed out by Aremu J., while sitting at the High Court of Justice, Osogbo in Osun state of Nigeria on 6th May, 1996. The learned trial judge struck out the Appellant’s case.
An application for Judicial Review of the directive or decision of the Government of Osun State dated 31st July, 1995 in respect of the use and control of designated motor parks was initiated by the appellant against the 1st and 2nd respondents. The 3rd respondent filed an application to be joined as an interested party. The application for joinder was granted in the Ruling delivered on 19th September, 1995.
While the Motion on Notice for Judicial Review of the decision of Osun State Government dated 31st July, 1995, was still pending, the Trade Unions (Amendment) Decree No.4 of 1996 was promulgated; having its commencement date as 5th January, 1996.
The 3rd Respondent thereafter filed and argued an application that the appellant’s case be struck out on the ground that the appellant is no longer a juristic person by virtue of the Trade Unions (Amendment) Decree No.4 of 1996 which had legislated the appellant out of existence. The appellant argued to the contrary.
The learned trial judge considered the reasoned submissions advanced by both sides. He arrived at the conclusion that in view of the provision of section 10 of the amending Decree No.4 of 1996, the Third Schedule in the Principal Act, 1973 cannot stand side-by-side with the Third Schedule of Decree No.4 of 1996. The learned trial judge found that by necessary implication, the appellant had been legislated out of existence and therefore lost its legal status. The appellant’s claim was consequently struck out. The appellant felt unhappy with the poise of the learned trial judge and has appealed to this Court. The Notice of Appeal which carries four Grounds of Appeal was filed on 14-5-96. The reliefs sought from this Court are:
“(i) An order setting aside the decision of the lower court complained of.
(ii) An order sending the case back to the lower court for hearing before another judge of Osun State High Court. ”
The two issues formulated on behalf of the appellant for a proper determination of the appeal read as follows:
“1. Whether on the materials before the court the learned trial judge was right in his construction of Decree No. 4 of 1996 on which he predicated the striking out of this case.
- Whether the learned trial judge was right in not adjourning the ruling on the objection to the competence of the action to investigate the allegation that his ruling was already made known to the third respondent so as to enable him decide whether or not he should continue with the further hearing of the case.”
On behalf of the 1st and 2nd Respondents, two Issues couched for determination of the appeal read as follows:
“2.1 Whether the relevant provisions of the Trade Unions (Amendment) Decree No. 4 of 1996 and the provisions of the Trade Unions Act, Cap 437, Laws of the Federation of Nigeria, 1990 were not properly construed by the learned trial judge before he arrived at the decision that the Appellant had been legislated out of existence and therefore had no juristic personality to maintain the suit.
2.2 Whether or not the learned trial judge had not done necessary investigation in the circumstance of the allegation that the Ruling of the Court had leaked before the said Ruling was delivered.”
On behalf of the 3rd Respondent, the two Issues distilled for determination of the appeal read as follows:
“4.1 Whether the relevant provisions of the Trade Unions (Amendment) Decree No. 4 of 1996 and the provisions of the Principal Act, that is, the Trade Unions Act, Cap 437, Laws of the Federation of Nigeria, 1990 were not properly construed by the learned trial judge before he arrived at his decision that the Appellant has been legislated out of existence and therefore has no juristic personality to maintain the suit.
4.2 Whether or not the learned trial judge had not done necessary investigation in the circumstances of the allegation that the Ruling of the court had leaked to an unknown Gani before the Ruling of the court was delivered on 6th May, 1996.”
Arguing issue 1, learned counsel for the appellant observed that the action was filed on 7th August, 1995 while Decree No.4 styled as the Trade Unions (Amendment) Decree which amended the Principal Act of 1973 otherwise referred to as the Trade Unions Act, Cap. 437, Laws of the Federation, 1990 came into force on 5th February, 1996.
Learned counsel further observed that in the third schedule of the Principal Act, Part A which relates to the Workers Unions listed 42 Workers Unions including 43 (any other Workers Trade Unions) registered and recognized. Part B of the same schedule which relates to the Senior Staff Unions listed 35 Senior Staff Unions including 36 (any other Unions of Senior Staff registered after 3rdAugust, 1977) registered and recognized. In the Principal Act, the 3rd respondent herein is listed as No. 24 in Part A while the appellant is listed as No. 31 in Part B of the 3rd schedule. Learned counsel further pointed it out that soon after the Decree was promulgated, the 3rd respondent argued the application, the main ground of which was that by Decree No.4 of 1996; section 10 therein legislated the appellant out of existence and therefore, it ceased to be a juristic person.
Learned counsel submitted that Decree No.4 of 1996 on which the 3rd respondent based its application clearly shows in its recitals that the scheme and purpose of the amendment was only to restructure the Trade Unions that are affiliated to the Central Labour Organisation. He contended that Decree No.4 of 1996 did not abolish any of the associations listed in Part B of the Third Schedule to the Act of 1973. He maintained that in actual fact, Decree No.4 of 1996 is silent on the list of associations listed in Part B of the Third Schedule of the Principal Act. He felt that in the absence of an enactment which expressly proscribes the associations in Part B, the trial court had no power to imply the proscription of the appellant. He submitted that if Decree No. 4 of 1996 had intended to proscribe any of the Senior Staff Trade Unions listed in Part B of the third schedule to the Principal Act, it would have expressly listed the names of the associations it intends to proscribe as courts lean against implied repeal of an existing legislation. He cited Governor of Kaduna State v. Lawal Kagoma (1982) 3 NCLR 1032 at 1042.
Learned counsel submitted that assuming but without conceding that the appellant has been proscribed by Decree No.4 of 1996, section 6 of the Interpretation Act, Cap 192, Laws of the Federation of Nigeria, 1990 which is in pari materia with section 13 of the Interpretation Law of Oyo State, Cap 52 of 1978, as applicable in Osun State preserved any action instituted prior to the enactment of a repealing law. He opined that since the action was instituted before the promulgation of Decree No.4 of 1996, the action can be continued to conclusion as if the enactment had not been repealed.
He referred to Abare v. Ofili (1986) 1 NWLR (Pt. 15) 134 at p. 146. Learned counsel further submitted that the law applicable is that as at the time the action was filed and any later law will not affect the cause of action which accrued or was not available under the old law. He cited Attorney-General of the Federation v. Sode (1990) 1 NWLR (Pt. 128) 530 at 534; Kotove v. Saraki (1994) 7 NWLR (Pt. 357) 414 at 448-449. Learned counsel felt that the court should not read anything into Decree No.4 of 1996 beyond what it contains.
Learned counsel pointed it out that the Local Governments imbued the appellant with vested rights as deposed to in the affidavit in support of the application. The appellant had the responsibility of controlling the motor parks by which they issued tickets to vehicles for token fees while the responsibility of loading and off-loading passengers and goods resided in the 3rd respondent. The 1st Respondent, by its notice/decision dated 3 1st July, 1995 purported to wrest the control and use of motor parks within the state from the appellant and vested same in the 3rd respondent. Learned counsel felt that the trial judge took an erroneous view that the right claimed by the appellant did not amount to vested or accrued rights to prevent Decree No.4 of 1996 from legislating the appellant out of existence by implication. He felt that in the absence of express provision in Decree 4 of 1996 to the effect that such vested or accrued rights have been taken away, same cannot be done by implication. He submitted that in the construction of a statute, courts are duty bound to preserve the rights that have accrued. He cited the cases of Din v. Attorney-General of the Federation (1998) 4 NWLR (Pt. 487) 147 at 175 where the Supreme Court enjoined the courts that where there are two possible reasonable interpretations to adopt and apply, the one with more lenient construction should be preferred; that is the one that preserves accrued rights. He urged the court to hold that Decree No.4 of 1996 did not in any way abrogate the vested or accrued rights of the appellant. He cited Afolabi v. Governor of Oyo State (1988) 2 NWLR (Pt. 9) 734, 753; Ojo v. Governor of Oyo State (1989) 1 NWLR (Pt. 95) I, II.
Learned counsel pointed it out that the rule of construction of statutes is that where the words of a statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural or ordinary meaning. He cited Awolowo v. Shagari & ors (1979) ` All NLR 1120. A court of law, according to learned counsel, in such a case is limited to what is expressly put down on paper by the legislature. He cited Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 at p. 435.
Arguing issue I, learned counsel for the Island 2nd respondents submitted that the learned trial judge considered the various rules of interpretation and the effect of the Recital clauses before he arrived at his decision. He observed that the legislature may, while repealing an earlier statute, say the nature and extent of the repeal by saying what it intended to effect by the repeal. The legislature may save certain provisions in the earlier statute but where it says nothing except that the later statute repeals the earlier one, the wipe out is complete. He cited Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401 at 432-433. Learned counsel further submitted that although marginal notes do not generally afford legitimate aid to the construction of a statute, it is permissible to consider the purpose of a section and the mischief at which it is aimed with the marginal notes in mind. He cited Oloyo v. Alegbe (1983) 2 SCNLR 35 at 57. He further submitted that where the alternative of two modes of construction is likely to produce a result opposed to the intention of the lawmaker regarding the section construed, it is the duty of the judge to apply the construction that is in accord with the intention of the legislature.
He cited Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 21. He observed that it would be incongruous to allow Part B in the Third Schedule to the principal law to operate along with Part B in the amending Decree No. 4 of 1996. He felt that Decree No. 4 legislated the appellant out of existence.
Learned counsel submitted that an accrued or vested right under a repealed legislation can only be considered or given effect only in respect of transactions past and closed or actions which were commenced, prosecuted and concluded whilst the repealed legislation is in existence. He opined that a person cannot acquire a right under a repealed legislation and seek to enforce same after the legislation that gave him the right has been repealed unless the repealing legislation preserved that right. He felt that no right of the applicant is preserved by Decree No.4 of 1996. He referred to Obeta v. Okpe (supra) at page 435. He submitted that the issue of accrued interest or times of accrual of interest are irrelevant. He felt that the appellant can no longer be a juristic person in the light of the decision in Akas v. The Manager and Receiver (2001) 8 NWLR (Pt. 715) 436 at 446.
Learned counsel for the 3rd Respondent was at one with the submissions dished out by the learned counsel for the 1st and 2nd respondents. On purport of marginal notes as aid to construction of statute, he cited Adewumi v. Att-Gen. Ondo State (1996) 8 NWLR (Pt. 464) 73 at 117; Ojo v. Alegbe (1983) 2 SCNLR 35 at 57.
He submitted further that the preamble which is a guide to the intention of the Lawmaker, has been described as a key to open the minds of the makers of the Act and the mischief which they intended to redress. He referred to The Sussex Peerage Claim (1844) 11 CI & F 85 at p. 143. Learned counsel also contended that it would be incongruous to allow Part B of the Third Schedule in the principal law to stand with Part B in the amending Decree.
Learned counsel observed that the appellant being a trade union recognized and registered under the Principal Act, had legal personality when it instituted its suit in 1995; but it became legally castrated and dead when Decree No.4 of 1996 was promulgated. He cited the case of Nigerian Nurses Association & anor v. Att. Gen. Federation & ors (1981) 11-12 SC 1 at 12, 18-21.
Learned counsel further submitted that a non-existing person, natural or legal, cannot institute an action. He felt that the appellant ceased to be a juristic person and it lacked locus standi. He cited Bank of Baroda v. Iyalabani Ltd. (1998) 2 NWLR (Pt. 539) 600 at 612; Akas v. The Manager and Receiver (2001) 8 NWLR (Pt. 715) 436 at 446.
Learned counsel submitted that where proceedings which were viable when instituted have by reason of subsequent event become inescapably doomed to failure, same may be dismissed as being an abuse of court process. He referred to Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) is at p. 45.
It is not in contention that the Trade Unions (Amendment) Decree No. 4 of 1996 amended, in part, the Principal Act, to wit: Trade Unions Act, Cap 437, Laws of the Federation of Nigeria, 1990. It is not in dispute that the lawmaker had the vires to so act. The learned trial judge, rightly in my view, found guidance in Odgers’, “The Construction of Deeds and Statutes”, Third Edition at page 263 where he quoted as follows:
“Instead of repealing an entire Act, the repeal may be of certain sections or clauses only. It cannot be said that ‘where a particular clause in an Act is repealed the whole Act must be read as if the clause had never been enacted’ (Att. Gen. v. Lamplough) (1878) 3 Ex. D. 214 at 233 per Kelly, C.B.) so a court is entitled to look at the repealed portion of an Act to see what is the meaning of what remains in the Act. (ibid., at p.227 per Bramwell, B); see also Chapman v. Kirke (1948) 2 K.B. 450 at p. 455 per Denning, LT.”
Again, the learned trial judge at page 80 of the record of appeal touched on purport of preamble to a statute which is of moment in canon of interpretation in the realm of the literal rule. One of the most frequently quoted of the numerous statements of the literal rule is that of Tindal, CJ when advising the House of Lords on The Sussex Peerage Claim (1844) CL & Fin 85 at 143. It reads as follows:
“The rule of construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone, do in such a case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute and to have recourse to preamble which according to Chief Justice Dyer in Stowell v. Lord Zouch (1569) 1 Plowd 369 is a key to open the minds of the makers of the Act and the mischief which they intend to redress.”
There is the golden rule of interpretation which allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provisions in the statute or even when it would lead to what the court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read. Refer to Awolowo v. Shagari & ors (supra) at p. 156. However, such an exercise must be carried out with caution. Lord Mersey in Thompson v. Goold & co. (1910) A.C. 409 at 420 observed that:
“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of a clear necessity, it is a wrong thing to do.”
Let me just say it in passing that there is the mischief rule which is used to explain what was said by Parliament and not to change it. The object of the statute is relevant on all occasions.
In construing a statute, every word or clause in an enactment must be read together; not in isolation but with reference to the con and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute. See Oyeyemi v. Commissioner of Local Government, Kwara State (1992) 2 SCNJ 266 at 280; Artra Ind. Nig. Ltd. v. NBCI (1998) 3 SCNJ 97 at 115.
I need to point it out here that it is well established that courts will lean against implying the repeal of an existing legislation. If both the earlier and the later statutes can reasonably be construed in such a way that both can be given effect to, this must be done. Refer to Governor of Kaduna State v. Lawal Kagoma (supra) at p. 1042.
Now then, the amending Decree No.4 of 1996 provides for five (5) recitals in its preamble. The trial judge, in his Ruling under fire, reproduced and considered recitals I, 4 and 5 and left out by design or otherwise recitals 2 & 3 which are very vital for the determination of what is in the mind of the lawmaker, the real intention that prompted the promulgation of Decree No.4 of 1996. On my part, I shall reproduce the five recitals for a clear reading and appreciation. They read as follows:
“WHEREAS it has been observed that since 1986 when the trade unions were restructured from 71 to 41, there existed certain overlapping and duplication in the objectives of the trade unions which has resulted m numerous court cases;
AND WHEREAS the Nigerian Labour Congress acting for and on behalf of the 41 trade unions affiliated to it since 1989 expressed the desire to restructure the trade unions to a reasonable number to redress the obvious lapses;
AND WHEREAS in keeping with the principle of voluntarism as contained in the International Labour Organization Convention No. 87 on the Freedom of Association and Protection of the Right to organize, the Nigerian Labour Congress between 1990-1992 set up a number of committees on the restructuring exercise, the reports of which were further subjected to thorough scrutiny by the three social partners on labour matters before a conclusion was reached;
AND WHEREAS there now exists the urgent need to remove all the anomalies in the present structure of trade unions caused by duplication, amorphous structures and overlapping jurisdiction in order to eradicate the numerous intra union disputes and litigations;
AND WHEREAS the Federal Military Government is desirous of assisting the trade unions to overcome the anomalies and achieve internal cohesion, be more viable and capable of standing on their own without recourse to internal or foreign aid.”
From a clear reading of the above five recitals, it is manifest that the intention of the lawmaker is to further assist the Nigerian Labour Congress to further restructure the then existing Workers Unions affiliated to it from 41 to 29. The Nigerian Labour Congress had, between 1990-1992, set up a number of committees on the restructuring exercise. The reports were further subjected to thorough scrutiny by the three social partners on labour matters before a conclusion was reached. It is clear to me that the exercise had nothing to do with the Senior Staff Unions in Part B of the Principal Act which are not affiliated to the Central Labour Organization.
Despite the fact that the 35 Senior Staff Unions listed in Part B of the Third Schedule to the Principal Act are not affiliated to the Central Labour Organisation and had nothing to do with the desired restructuring of the 41 unions under it to 29, the learned trial judge still found that the 35 Senior Staff Unions, the appellant inclusive, have been legislated out of existence in one fell swoop by implication. Such a stance appears strange to me. It sounds ludicrous to my ears. I need to furnish some reasons for my own stand point. I have said it before and I need to say it again that it is well established that courts will lean against implied repeal of an existing legislation. Again I refer to Lawal Kagoma’s case (supra) at p. 1042.
From the tone of the recitals, it is clear to me that the lawmaker did not contemplate legislating the 35 Senior Staff Unions out of existence by implication as gleefully presented on behalf of the respondents. To say that the 35 Senior Staff Unions which include inter alia Academic Staff Union of Universities (ASUU), Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASON) and Nigeria Employers’ Association of Banks, Insurance and Allied Institutions and the appellant are all legislated out of existence by implication and that they should be pronounced ‘dead’; sounds like a child’s play. I take judicial notice of the fact that A.S.U.U. from 1996-May 1999 continued to perennially agitate sometimes to the point of boredom even under maximum military rule without much inhibition. And under the current democratic dispensation, protracted agitation continued until a while ago when common sense appears to be prevailing. I do not buy the idea that the 35 Senior Staff Unions have been legislated out of existence by implication.
It is my considered opinion that to get any of the 35 Senior Staff Unions in Part B of the Third Schedule to the Principal Act proscribed or legislated out of existence, such must be expressly made. It cannot be done by surreptitious means. If a union has ceased to exist, section 7 of the Principal Act provides for cancellation of its registration by the Registrar. It has not been shown that such a step was taken against any of the 35 Senior Staff Associations, appellant inclusive, in Part B. Refer to Nigerian Nurses Association & anr v. Aft. Gen. Federation & 2 ors (supra) at p. 12.
I quite appreciate that the appellant, being a trade union, has legal personality. Refer to Bonsor v. Musicians Union (1956) A.C. 104. The appellant’s registration has not been shown to be cancelled. As well, its certificate has not been proved as having been cancelled. Its existence has not been terminated. It is a legal person whose ‘birth’ and ‘death’ are determined not by nature but by law on paper; not by implication.
Both learned counsel to the respondents attempted to fly a kite when they mooted the idea that it will be incongruous to allow Part B to the Third Schedule of the amending Decree No.4 of 1996 to stand side by side with part B of the Third Schedule of the Principal Act. I think not. This is because Part B of the Third Schedule to Decree No. 4 of 1996 merely defines the jurisdiction of the 29 restructured unions affiliated to the Central Labour Organization while Part B to the 3rd Schedule of the Principal Act containing the 35 Senior Staff Unions remains glued to it. The two can operate without collision. After all, the sky is wide enough for two birds to fly without collision. Again I refer to Lawal Kagoma’s case (supra).
For the above reasons, I am unable to pitch my tent with the learned trial judge in his finding that the appellant, along with the other 34 Senior Staff Unions have been legislated out of existence by implication. To my mind, that finding was clearly erroneous. And I so hold. Appellant’s counsel maintained that even if the appellant has been proscribed by Decree No. 4 of 1996, section 6 of the Interpretation Act preserved the action which was instituted before the promulgation of the law. He felt that the action can be continued to conclusion as if the enactment in the earlier law had not been repealed. The argument sounds alluring. But if the appellant as a union is pronounced ‘dead’ as from 5th January 1996, I do not see how it can be contesting the decision of Osun State Government from its grave. If it has ceased to exist; it becomes caput mortem. If it is obliterated out of existence, it can no longer contest any decision of Osun State Government on this side of the divide. The case of Abaye v. Ofili (supra) cited by the appellant’s counsel is not of moment since parties therein are natural persons still in existence.
I resolve the 1st issue in favour of the appellant and against the respondents.
The next issue relates to the point that the trial judge should have adjourned the ruling for investigation to be carried out on the appellant’s complaint that the content of the ruling was already made known to one Gani, a member of the 3rd respondent. To my mind, the complaint appeared to have been raked up to satisfy the unwholesome desire that the ruling should not be read. The surmised Gani to whom the ruling was allegedly leaked had no surname and no address was furnished by the appellant. The appellant who made the unwarranted allegation had the onus to prove same. And the onus cannot shift to the opponent or to the court.
The learned trial judge called upon the Chairman of the respondent in Iragbiji to clear the air. The Chairman denied that the secretary of his union is called Gani and he did not know anybody by that name. The learned trial judge reflected it on the record that he wrote the ruling overnight and that it could not have leaked.
I must say it that I do not buy the idea that the court ought to be put in a tight corner as in this matter. The integrity of the court should be held as sacrosanct and should not be trampled upon in an unwananted manner that is basically geared at scoring a cheap and undeserved victory. I say no more.
I resolve Issue 2 against the appellant and in favour of the respondents.
Since issue 1 is resolved in favour of the appellant, the appeal succeeds and is hereby allowed. The ruling of the learned trial judge delivered on 6th May, 1996, is hereby set aside. The suit is hereby remitted to the lower court for hearing before another judge of Osun State High Court. In the circumstance of the appeal, each side should bear its own costs.
Other Citations: (2006)LCN/2121(CA)
