ERAMUS OSAWE &ORS v. REGISTRAR OF TRADE UNIONS (1985)NWLR (Pt.4)756.

Case: ERAMUS OSAWE &ORS v. REGISTRAR OF TRADE UNIONS (1985)NWLR (Pt.4)756. 

Court: Nigeria

Date: Friday 31st May, 1985

(1985) LLJR–SC; (1985)NWLR (Pt.4)756

INTRODUCTION               

 The case of Osawe & Ors v. Registrar of Trade Unions is a civil case between Erasmus Osawe & Ors (the appellants), who appealed to the Supreme Court in dissatisfaction with the decision of the Nigerian Court of Appeal, and the Registrar of Trade Unions, the respondent against whom the appeal is being instituted. The case involved an appeal to the Supreme Court of Nigeria regarding the registration of trade unions. Specifically, the appellants sought to register ‘The Nigerian Unified Teaching Service Workers Union,’ but the Registrar refused on the grounds that another union already existed that represented the same class of workers. The High Court ruled in favor of the appellants, but the Court of Appeal reversed the decision. In other words, this is an appeal against the decision of the Court of Appeal dated January 24, 1984, allowing the appeal of the respondent, who was ordered by the High Court of Benin City to register the appellants’ union.

FACT OF THE CASE

The appellants, Osawe & Ors, applied to the respondent, Registrar of Trade Unions, for registration of their proposed trade union called ‘The Nigeria United Teaching Service Workers Union’, also known as ‘Nigerian Administrative Staff Union of Primary and Post-Primary Schools’. This decision was made at a meeting of representatives from schools and colleges in Bendel State held on May 13, 1980. According to the meeting’s minutes, the delegates agreed to break away from the registered trade union known as Non-Academic Staff Union of Education and Associated Institutions (NASU) and form a new union that would perform similar functions, catering to the interests of workers in schools and colleges within the Unified Teaching Service.

However, upon receiving the appellants’ application, the respondent duly considered it and rejected the application based on the provisions of sections 3(2) and 5(5) of the Trade Union Act of 1973 (as amended). The respondent then forwarded a letter dated July 6, 1981, to the appellants, stating the reasons for not registering their proposed trade union. The reason was that a recognized trade union, the Non-Academic Union of Educational and Associated Institutions, already existed and catered to the same class of people the appellants’ union intended to represent.

The aggrieved appellants appealed against the respondent’s decision at the High Court of Benin City. Ikom J ruled that the Registrar’s decision was unconstitutional, invalid, null, and void, constituting an infringement on the appellants’ fundamental human rights as contained in section 37 of the 1979 Constitution of the Federal Republic of Nigeria. The court set aside the respondent’s decision and ordered the registration of the appellants’ union.

The respondent appealed against the High Court’s decision, and the Nigerian Court of Appeal in Benin City allowed the appeal, setting aside the High Court’s decision. This led to the dissatisfied appellants, Osawe & Ors, appealing against the Court of Appeal’s decision.

LEGAL ISSUES

1. Whether or not, section 3(2) of the Trade Union (Amendment) Act 1978, which provides that, ‘No trade Union shall be registered to represent workers or employees in a place where there is already in existence a trade union ‘ is an infringement on section 37 of the 1979 Constitution, which guarantees freedom of association?
2. Whether or not, the Registrar of Trade Unions must publish a notice and allow objections within 3 months before refusing to register a trade union due to the existence of a registered Trade Union catering for similar interest?
3. Whether or not, the Registrar was right in refusing to register the proposed trade union?
4. Whether or not, the High Court was right in its ruling?
5. Whether or not, the Court of Appeal was right in reversing the decision or ruling of the High Court?

ARGUMENTS

In this case, the appellants contended that the refusal of the Registrar of Trade Unions to register their proposed trade union was an outright violation of their fundamental right to freedom of association, which is entrenched in the Nigerian Constitution. The learned counsel for the appellants, Mr. Okeanya-Inneh, SAN, emphasized that the respondent had a duty to comply with the provisions of Section 5(2) of the Trade Union Act of 1973 before exercising his discretion under Section 5(5) thereof in refusing to register the appellants’ union. Since he failed to do so, he was wrong, and the High Court was right in setting aside his decision and ordering him to register the proposed trade union.

However, the learned counsel for the respondent, Mr. Nwadialo, SAN, contended that the union the appellants proposed to register was one seeking the same interest as the one already registered as Item 63 in Schedule 3 to the 1978 Act. He emphasized that the intention of Section 1(1)(a) of the 1978 Act was to prevent the proliferation of trade unions, and the requirement of Section 41(1)(a) of the Constitution had been fulfilled accordingly, as the action of the respondent was not a breach of the Constitution.

COURT’S ANALYSIS

Kazeem, JSC delivered the lead judgment. The Supreme Court emphasized that the chaotic state of registered trade unions in the country, with varied objectives and aspirations, led the Federal Military Government to restructure all registered trade unions. This exercise, outlined in the Nigeria Official Gazette No. 6, Volume 65, of February 8, 1978, aimed to bring sanity to the organizations. In the course of this exercise, the registration of some trade unions was canceled, and among them was the Union of Administrative Staff of Mid-West Colleges, which is another name for the proposed trade union.

The Court took recourse to Section 3(2) of the Trade Union Act of 1973 (as amended), which provides that no trade union shall be registered to represent workers or employees in a place where they already exist as a trade union. The Court emphasized that, by virtue of this provision, the Registrar of Trade Unions is obliged to ensure that there is no registered trade union in existence that caters to the same interest as the one applying for registration.

The Court held that the Registrar was right to reject the application for registration because, if he had done otherwise, it might have led to a ridiculous situation. The Court also emphasized that, even if the Registrar had complied with Section 5(2) of the Act^[1] By publishing the name of the proposed trade union in the Official Gazette and calling for objections, it would have been a wasteful journey that would serve no purpose, as the registration would still be rejected due to the existence of a registered trade union catering to similar interests.

The Court also emphasized that Section 37 of the Constitution^[2] is not absolute, as it cannot invalidate any law that is reasonably justifiable in a democratic society in the interest of defense, public safety, public order, public morality, or public health. Therefore, Section 37 of the 1979 Constitution, regarding freedom of association for trade unions, is subject to the derogation set out in Section 41(1)(a) of the Constitution^[3], which has been amended to Section 45 of the 1999 Constitution of the Federal Republic of Nigeria.The Court concluded that Section 3(2) of the Trade Union Act of 1973 (as amended) does not contravene Section 37 of the 1979 Constitution, as it is a law reasonably justified in a democratic society.

DECISION

The Supreme Court held that the Registrar of Trade Unions was right to have rejected the application for the registration of a proposed trade union where there existed a registered trade union catering to the same interest as the proposed trade union. The Court also held that Section 3(2) of the Trade Union Act 1973, as amended, does not contravene Section 37 of the 1979 Constitution. Therefore, there was no violation of the appellants’ right to freedom of association as enshrined in the Constitution. The Supreme Court dismissed the appeal with N300.00 costs to the respondent.

CONCURRING OPINION

The Presiding Judge, A. O. Obaseki, JSC, gave a concurring opinion after reading in draft the judgment of Kareem JSC and analyzing Section 37 of the 1979 Constitution, Section 41(1)(a) of the 1979 Constitution, and Section 3(2) of the Trade Union Act 1973 No. 31 (as amended). He emphasized that it would amount to an act of financial irresponsibility to proceed to publish a notice of application in the Gazette when the Registrar of Trade Unions knows that the application has already been barred by the Act from any consideration. He also dismissed the appeal with N300.00 costs to the respondent and affirmed the decision of the Nigerian Court of Appeal.

A.N. Aniagolu, JSC also concurred with the decision, reasoning, and conclusion of Kareem JSC. In agreement with the decision of Kareem JSC, he cited the case of Nigeria Nurses Association and S.S. Okezie v. AG of the Federation & 2 Ors,^[4] Section 3(5) of the Trade Union Act 1978, Section 5(7) of the Trade Union Act 1978, Section 141 of the Evidence Act,^[5] Section 37 of the 1979 Constitution, and Section 41(1)(a) of the 1979 Constitution to support his concurring opinion.

He emphasized that the Registrar does not need to be informed or require extraneous evidence from objections lodged pursuant to a published notice to know that there is an existing registered trade union catering to any particular interest. Therefore, if there is an existing registered trade union, it has a vested right to cater to the interests of its members within its registered objects, rules, and regulations. Such a registered trade union also has a right that the law court should protect so that its organized labor will not be thrown into confusion, to the detriment of its registered trade union, by mushroom unions aimed at the same purpose, springing up here and there.

He also emphasized that the argument that the refusal of the Registrar to register the appellants’ proposed trade union is an infringement of Section 39 of the 1979 Constitution is without merit, and he dismissed the appeal with N300.00 costs to the respondent.

CONCLUSION

Within the intricate tapestry of Nigerian jurisprudence, the current Trade Unions (Amendment) Act of 2005, in its Section 12(3), provides that membership of a trade union by employees shall be voluntary and not by force. In other words, an employee cannot be forced or coerced to join any trade union or be victimized for refusing to join or remain a member of a trade union. The appellants in this case are not forced to join any union, but they are restricted from duplicating an already existing and registered union, as it would lead to confusion and duplication of duties.

It is pertinent to note that workers or employees have the right to form their own trade unions or join trade unions of their choice, as it constitutes an important aspect of the freedom of association for the achievement or protection of their interests. However, the right to associate with other persons for the purpose of forming or joining trade unions, as provided under Section 40 of the 1999 Constitution, is not absolute, as it is subject to the provisions of Section 45 of the Constitution,^[6] which recognizes the power of Parliament to make laws in the interest of defense, public safety, public order, public morality, or public health, or for the purpose of protecting the rights and freedoms of other persons.

The freedom of association is also guaranteed under Article 10 of the African Charter on Human and Peoples’ Rights, but this provision is subject to national laws. In my opinion, the decision of the Supreme Court is justified in this case because where one person’s right stops, another person’s right begins. If mushroom proposed trade unions are allowed or registered where there is an already existing trade union catering to the same interest, the proposed trade union intends, in the same name of guaranteeing their right to freedom of association under Section 40 of the Constitution, to proliferate different trade unions with similar interests.

Additionally, if the Registrar of Trade Unions finds out that there is an existing registered trade union catering to the same interest that the proposed trade union intends to cater to, it should be rejected immediately, as going through the procedure outlined in Section 5(2) of the Trade Union Act^[7] would amount to a waste of time or financial irresponsibility, because, at the end of the whole procedure, the proposed trade union would still not be registered due to the existence of the already registered trade union catering to the same interest as theirs.

REFERENCE(S):

^[1] Trade Union Act of 1973, Section 5(2).

^[2] Constitution of the Federal Republic of Nigeria 1999, Section 35.

^[3] Constitution of the Federal Republic of Nigeria 1979, section 41(1)(a).

^[4] Nigeria Nurses Association and S.S. Okezie v. AG of the Federation & 2 Ors (1981) 11-12 S.C. 1.

^[5] Evidence Act 2011( As ammended 2023), section 141.

^[6] Constitution of the Federal Republic of Nigeria 1999, Section 45.