THE REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH V PRACTITIONERS OF NIGERIA
(2008) LCN/3648(SC)
In the Supreme Court of Nigeria
Friday, January 11, 2008
Suite Number: SC. 201/2005
Case Number:SC. 201/2005
RATIO
INTERPRETATION: CARDINAL PRINCIPLE OF INTERPRETATION
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. PER M. MUKHTAR, J.S.C
APPEAL: REQUIREMENT FOR A PARTY RAISING AN ISSUE OR LAW
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. PER M. MUKHTAR, J.S.C
LEGISLATION: WHETHER THE I.L.O. CONVENTION HAS THE FORCE OF LAW IN NIGERIA
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:………..” PER M. MUKHTAR, J.S.C
ACTION: REQUIREMENT OF AN APPLICANT DESIRING TO BE JOINED AS A PARTY TO A SUIT
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. PER M. MUKHTAR, J.S.C
JUSTICES:
SYLVESTER UMARU ONU, JSC, JUSTICE, SUPREME COURT
DAHIRU MUSDAPHER, JSC, JUSTICE, SUPREME COURT (Lead Judgment)
ALOMA MARIAM MUKHTAR, JSC, JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JSC, JUSTICE, SUPREME COURT
PIUS OLAYIWOLA ADEREMI, JSC, JUSTICE, SUPREME COURT.
APPELLANTS
1. THE REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA2. HONOURABLE MINISTER OF LABOUR AND PRODUCTIVITY3. THE REGISTRAR OF TRADE UNIONS.
RESPONDENTS
MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & OTHERS.
A.M. MUKHTAR, JSC DeliveringLead Judgment of the Court 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.IB/14771/76 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 PAGE| 2 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 an incorporated Trustees under part C. The copy of the certificate of registration dated 18th February, 1997 is attached as exhibit NAC1. 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. 13. 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. 14. 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 applicants 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:- PAGE| 3 “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 NAG 5 of the verifying affidavit in support of the Motion on Notice. 11. I am informed by I. 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 vis-à-vis 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 PAGE| 4 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 to 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 important averment was not denied. It is therefore crystal clear that the 3rd respondent indeed belonged to an existing trade union i.e. the Appellant. (Underlining mine for emphasis) It is on this basis, my Lords, that I hold that the reliefs numbers (i), (ii) and (v) granted by the lower court cannot stand. I also wish to 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 averred by the Minister or Register that there was an existing Trade Union for that purpose but the bottom has been PAGE| 5 knocked out of this contention by the letter of the Minister himself, Exh. NAC 5 in paragraph 8, 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 PAGE| 6 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 in 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 subparagraphs (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 of 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 (Pt.868) 70, (2004) 2 SCM, 1. 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 is in the Registrar of 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, (2003) 11 SCM, 135. 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 liase 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:- PAGE| 7 “……. 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 are 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) 1 NWLR (Pt. 4) 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 JSC 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 proposed 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 PAGE| 8 provisions of section 3 of the Trade Union Act supra vis-à-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:-
