THE REGISTERED TRUSTEES OF ASSOCIATION OF TIPPERS AND QUARRY OWNERS OF NIG. v. CHIEF RAMONI YUSUF & ORS.
(2011)LCN/4882(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of November, 2011
CA/I/204/2008
RATIO
ACADEMIC QUESTIONS: WHY COURTS OF LAW DO NOT ENGAGE IN THE RESOLUTION OF ACADEMIC QUESTIONS
Courts of law have no business with the resolution of academic questions. Undertaking such excursion is an exercise in futility. See U. B. N. LTD. V. EDIONSERI (1988) 1 NSSC 603 at 601 and BHOJWANI V. BHOJWANI (1996) 7 SCNJ 16 at 20-21. By its very nature, an academic question or issue is most suitable for discussion and resolution by the academia. PER MOORE A. A. ADUMEIN, J.C.A.
TRADE UNION: WHAT ARE TRADE UNIONS
Trade unions are special because they are usually formed to collectively negotiate either on behalf of employers or employees, as the case may be, about work-related matters or issues, such as salaries, emoluments, benefits and working condition. The registration, regulation and general control of trade unions is under the Trade Unions Act. See section 1 of the Trade Unions Act which defines “trade union” as “any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers…” PER MOORE A. A. ADUMEIN, J.C.A.
PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
It is trite law that parties are bound by their pleadings. See RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (Pt.2) 350 AT 365, paras. D-E, where the Supreme Court, per COKER, JSC made it clear: “The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which alone the Court adjudicates between them. The law reports are replete with decisions dating very many years back, that a party is bound by his pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See Alhaji Karimu Lemomu & Ors. V. Hadji Noahs Alli-Balogun & Ors. (1975) 1 All N.L.R. 30 at p.40. PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF ASSOCIATION OF TIPPERS AND QUARRY OWNERS OF NIG. Appellant(s)
AND
1. CHIEF RAMONI YUSUF
2. MR. LAMIDI AJALALOGE
3. MR. LAMIDI DADA
4. MR. LASISI IBUOWO
(Trading under the name and style of Associated of Quarriable Marketers of Osun State). Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State, sitting at Osogbo, delivered by SHIYANBOLA, J. on the 8th day of February, 2007. The appellants were the plaintiffs, while the respondents were the defendants/counter claimants, in the court below. The appellants’ claim in the lower court was refused while two of the respondents’ prayers in their counterclaim were granted. The appellants were dissatisfied with the decision of the lower court and appealed to this Court. The appellants’ amended notice of appeal contains the following grounds, without their particulars, namely:
“(1) The learned trial Judge erred in law when he held as follows: “The issue of exclusive ownership of quarry canvassed by the Plaintiffs cannot therefore stand. I hold therefore that the ownership of quarry cannot be the exclusive preserve of the Plaintiffs. The Plaintiffs and the Defendants by the Provision of section 12 (c) of the Land use Act could be granted licence by the Governor as there is nothing in the said section to show that once a licence is granted to a person that person becomes the exclusive owner of quarry and licence cannot be granted to another person” decision which is contrary to law.
(2) The Learned Trial Judge erred in law when he held as follows:- “I have carefully perused the licences granted to the Plaintiffs i.e. Exhibit P5, P6, P7 and P8 to quarry for sand. These Exhibits do not in any way empower the Plaintiffs to own quarry. What are more Exhibits D12 and D13 are licences also granted to United quarriable Association. Although the name United quarriable Association is different from the Defendants’ name, However, the fact remains that the licence granted to the Plaintiffs was also granted to another Association to do the same business. If the contention of the Plaintiffs were to be true that the Plaintiffs own quarry to the exclusion of the Defendants, the same Government would not have granted similar licence to another Association. To this end, the contention of the Plaintiffs that it owns quarry to the exclusion of the Defendants fails and same is dismissed “a decision which is contrary to law.
(3) The Learned Trial Judge erred in law when he held as follows: “On the issue of Tipper owners’ constitution of the Federal Republic of Nigeria, 1999 recognises the right of Nigeria citizen to own and acquire property, there is no section in the Constitution which prohibits Nigeria citizen to own movable property. The claim of the Plaintiffs to ownership of Tippers to the exclusion of the Defendants also fails and same is dismissed “a decision which is perverse.
in law when he held as follows: “On the second issue i.e. whether the Defendants is mandated to register under the Plaintiffs, before it can carry on its quarry business. For the reasons earlier advanced, since the Plaintiffs are not quarry owners the Defendants, are not required to register under the Plaintiffs before it can operate quarry business or own tipper. To me, since the two parties are licencess of the Federal Government, the two parties need not register under each other before it can legally operate quarry business.” The Plaintiffs cannot turn itself to another Government body where a person must register before it can lawfully carry on his business. On the contention of the Plaintiffs that Article 12 of Chapter 3 of Exhibit P2, i.e. the Constitution of the Plaintiffs’ Association, binds and mandates all classes of tipper and quarry owners throughout the Federation to compulsorily be registered members of the Plaintiffs’ Association, this contention to me have no legs to stand, for the simple reason that the Constitution of any Association or Union has no binding effect on another Association and cannot even be part and parcel of Nigeria law. I do not agree with the contention of the Learned SAN in Bar. 3.09 of his address that the Constitution of the Plaintiffs binds the Defendants. The Court of Appeal in the case of Alex Olodele Elufioye & Ors. Vs. Ibrahim Halilu & Ors. 1990 2 NWLR. Part 130 page 1 and page 4, ratio 2 held: “It is not the law that once the Constitution of a Union is registered it form part and parcel of the law of the nation to be judicially noticed. The Plaintiffs’ Constitution cannot bind the Defendants as the Defendants do not belong to the Plaintiffs’ Association, and the same Constitution cannot be judicially noticed as having the force of law because it does not form part and parcel of our law which the Defendants would have been expected to comply with. For this reason, this claim also fails and same is dismissed” a decision which is contrary to law.
(5) The Learned trial Judge erred in law when he held as follows:
“The evidence of P.W.2 and P.W.3 on this case especially in relation to the issue of debt owed by the Defendants to the Plaintiffs are not pleaded. For instance P.W.3 in his own evidence said that each leaflet cost N300.00 and that there are 100 leaflets in each booklet. These evidence were not pleaded by the Plaintiffs in his Statement of Claim. P.W.2 in his own evidence also said each leaflet of the Plaintiffs’ receipt cost N300.00 and that there was a letter of demand written by the Plaintiffs to the Defendants. All these were not pleaded. The law is trite that evidence given in a trial but not pleaded go to no issue” a decision which is contrary to law.
(6) The learned Trial Judge erred in law when he held as follows: (i) “The rational conclusion to draw from this evidence is that the Plaintiffs are not sure of the actual amount due to it from the Defendants”.
(ii) “since the Plaintiffs cannot satisfactorily convince the Court of the actual amount or balance due to her from the Defendants the court is left with the option of accepting the Defendants’ evidence which admitted some amounts as being owed to the Plaintiffs”.
(iii) “Since the Plaintiffs are not sure of the actual amount due to her and the Defendants are able to admit certain amount. I prefer the evidence of the Defendants to that of the Plaintiffs” which has occasioned a miscarriage of justice.
(7) The learned trial judge erred in law when he held as follows: “In the circumstance, this Court cannot declare Exhibit P3 null and void merely because it contravenes the constitution of the Plaintiffs’ a decision which is contrary to law.
(8) The learned trial judge erred in law when he held: “In respect of the Defendants’ Counter Claim for the reasons adduced by the court earlier in the judgment, legs 1 and 3 of the Defendants’ claim succeeds” a decision which is perverse.
(9) The judgment is against the weight of evidence.”
In accordance with the Rules of this Court, the parties filed and exchanged briefs of argument. The appellants filed the following briefs, namely.
1. Appellants’ amended brief dated the 23rd day of February, 2011 but filed on the 28th day of February, 2011.
2. Appellants’ reply brief to the respondents’ brief dated the 23rd day of February, 2011 but filed on the 28th day of February, 2011 and deemed property filed and served on the 1st day of March, 2011.
The respondents’ brief dated the 30th day of November, 2009 was filed on the 2nd day of December, 2009. At the hearing of the appeal, the appellants adopted their briefs, relied on the said briefs and urged the Court to allow the appeal. The respondents also adopted and relied on their brief and asked the Court to dismiss the appeal and affirm the judgment of the lower court.
The appellants formulated 6 (six) issues for determination in their brief and they are:-
(1). Whether the Plaintiffs cannot exclusively own quarry as contained in its Constitution.
(2). Whether the Plaintiffs’ Constitution that provides that the Plaintiff can own Tipper Lorries exclusively offends S. 40 of the Constitution of Federal Republic of Nigeria 1999.
(3). Whether the evidence given by P.W.2 and P.W.3 is not covered by the Plaintiffs’ pleading.
(4). Whether it is proper or not to declare Exhibit P3 null and void even though it is contrary to the Plaintiffs’ Constitution.
(5). Whether the learned trial judge was right by their granting reliefs 1 & 3 claimed by the Defendants in Counter Claim.
(6). Whether or not the Appellants have discharged the onus of proof that the Respondents are owing the appellants the sum of N360, 000.00 (Three Hundred and Sixty Thousand Naira)”.
The respondents adopted Issue 1 – 5 formulated by the appellants.
ISSUES NO.1, 2 AND 3
Whether the Plaintiffs cannot exclusively own quarry as contained in its constitution.
Whether the Plaintiffs’ Constitution that provides that the Plaintiff can own Tipper Lorries exclusively offends S. 40 of the constitution of Federal Republic of Nigeria 1999.
Whether the evidence given by P.W.2 and P.W.3 is not covered by the Plaintiffs’ pleading.
The appellants argued Issues 1 – 3 together. These issues cover grounds 1, 2, 3, 4, 5 and 9 of the appellants’ grounds of appeal. The appellants referred to paragraph 1 of their statement of claim and Part 1 and Chapter 3 of their constitution, which was admitted as exhibit P2 and contended body that having been registered they (the appellants) became a corporate body that could sue and be sued and that they can hold and acquire and transfer, assign, or otherwise dispose of any property or interests therein belonging to, or held for the benefit of such association as provided by section 679 of the Companies and Allied Matters Act, 1990.
The appellants’ learned Senior Counsel R. A. Ogunwole (SAN) stated that the best evidence of incorporation is the production of the certificate of incorporation. He cited and relied on ADEOYE MAGBAGBEOLA V. TEMITOPE SANNI (2005) 4 S.C. 78 at 85 and contended that the respondents’ association “was never registered under any law in Nigeria.” The appellants submitted further thus:
“The learned trial judge did not advert his mind to this important issue but he went on a voyage of discovery by relying on Section 1, 5 (1) and 12 (c) of the Land Use Act which none of the parties pleaded and upon which no issue was joined.”
The appellants contended that the lower court ought to have confined itself to the questions raised by the parties. They referred the Court to the case of OKOLO V. U.B.N. LTD (1998) 2 NWLR (Pt.539) 618 at 646, para. F
They submitted that the appellants could under their constitution own and operate quarry but the respondents could not because they were not registered. They argued that the lower court wrongly made use of exhibits – P5, P6, P7 and P8 tendered by the appellants and exhibits D12 and D13 tendered by the respondents. The appellants opined that exhibits D12 and D13 had no relevance to this case because the respondents’ name is not “United Quarriable Association”. Furthermore, the appellants argued thus:
“The licences that were tendered were to operate and and NOT to own quarry, they are not one and the same thing.”
The appellants referred to the evidence PW2 at page 27 of the record of appeal and submitted that the evidence constituted admission against interest. They argued thus:
“The admission of PW2 who is the State Secretary of the Respondents is an admission against interest and the admission destroys the Respondents’ case that they could operate their Tipper Lorries independently of the Appellants without being registered. See: Iwenofu v. Iwenofu (1975) 1 ALL NLR (Part II) Page 46.”
The appellants submitted that in this case the lower court misinterpreted section 40 of the Constitution of the Federal Republic of Nigeria, 1999 when it held thus:
“On the issue of Tipper Owners, the Constitution of the Federal Republic of Nigeria, 1999 recognizes the right of Nigerian citizen to own and acquire property, there is no section in the constitution which prohibits Nigerian citizen to own movable property. The claim of the Plaintiffs to ownership of Tippers to the exclusive of the Defendants also fails and same is dismissed”.
The appellants submitted that, since they were registered under Part C of the Companies and Allied Matters Act, their constitution “is a subsidiary legislation to protect the interest of their members in running their business”. The appellants then concluded thus:
“Unless and until the Respondents are equally registered to perform the same function throughout Nigeria then they have to be part of the Appellants if they are running the same business.”
Mr. Ogunwole (SAN) argued that sections 40 and 45 of the Constitution of the Federal Republic of Nigeria, 1999 should be read together as section 40 is not absolute. He cited and relied on the case THE REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA & ORS. V. MEDICAL AND HEALTH WORKERS UNION (2008) 2 NWLR (pt. 1072) 575 at 603 para. C; 638 para. C – D and 640 para. G.
The learned Senior Counsel argued that “the registration of the appellants will bring sanity and control to the use of Tipper Lorries throughout Nigeria since they can be controlled from the Local Government, State and at the National level” and, on this, he relied on OSAWE V. REG. TRADE UNIONS (1985) 1 NWLR (Pt.4) 755 at 761.
The appellants said that the evidence of PW2 and PW3 covered paragraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of appellants’ statement of claim and that since PW2 and PW3 are members of the respondents, their evidence must be used against the respondents. They referred to and relied on the case of ONISAODU V. ELEWUJU (2006) 13 NWLR (Pt.988) 517.
The respondents, in their reaction, referred to the averments in paragraphs 3 and 4 of their statement of defence which they said were to controvert averments in paragraphs 3, 4, 5, 6 and 7 of the appellants’ statement of claim. They referred also to the evidence of PW1 and PW2 which they claimed supported their case and that they (the respondents) could take advantage of. They referred the Court to the case of ONISAODU V. ELEWUJU (supra) at 529.
The respondents also referred to paragraphs 10, 11, 12 and 13 of their statement of claim and the evidence of DW3, DW4, DW5 and DW7 and argued that in compliance with sections 573, 574 and 575 of the Companies and Allied Matters Act, cap C. 20, Laws of the Federal of Nigeria 2004, they got their business name – United Quarriable Association registered under Party B and that the certificate of Registration No. LAZ0006539 was issued to them and which certificate was tendered as exhibit “D1”. Mr. Ogunmuyiwa, learned counsel for the respondents argued that the appellants, having been incorporated under Part C of the Companies and Allied Matters Act, it was “not lawful for the incorporated association to carry on the business of running tippers or any form of transport business and of (sic) operating quarries”. He contended further that the appellants were incorporated for social, development, cultural and charitable purpose and not for any business or commercial venture. The respondents argued that the appellants’ constitution did not provide that they “can exclusively own quarries”. They submitted also that the membership provision and clause 12 of the appellants’ constitution offended “against Section 40 of the Constitution of the Federal Republic of Nigeria 1999, and are to that effect null and void.”
The respondents disagreed with the appellants that the appellants’ constitution was a subsidiary legislation. They submitted that the appellants’ constitution “is merely a bundle of precepts and directions to govern the conduct of the voluntarily associated members”
The learned counsel for the respondents argued that the cases of REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA & ORS. V. MEDICAL AND HEALTH WORKERS UNION (supra) and OSAWE V. REG. TRADE UNIONS (supra) cited and relied upon by the appellants were inapplicable to this case as, among other things, the parties in this appeal are not trade unions and were not registered under the Trade Union Act, Mr. Ogunmuyiwa referred the Court, on what constitutes a binding precedent, to the case of FAWEHINMI V. N.B.A. & ORS. (No.2) (1989) 2 NWLR (Pt. 105) at 650, per Oputa, J.S.C.
The respondents urged the Court to resolve these three issues in their favour.
The appellants are registered under Pact C of Companies and Allied Matters Act. On the hand, the respondents claimed to have been registered under Pact B of Companies and Allied Matters Act. The parties carry on businesses as quarry and lorry owners. They also manage tipper garages for the purposes of their businesses. As a result of conflicting claims to the right to own and operate their quarry, tippers and garages there were frictions which, in some cases, led threat to peace and the law enforcement agencies had to intervene. Peace was however brokered between the parties and the parties resolved to cooperate and work together – a communique (exhibit P3) to that effect was issued.
The parties later disagreed over some issues and the appellants filed a suit in the lower court in which they claimed sundry relief. Among the claims of the appellant was a relief that they had exclusive ownership of quarry and tipper lorries to transport quarried materials in Nigeria.
The respondents denied the appellants’ claim and they filed a counter claim in which they also claimed to be entitled own quarry and lorries. Part of the respondents’ counter claim was granted by the lower court while the appellants’ claims were dismissed.
The appellants were not satisfied with judgment of the lower court and they filed an appeal containing the grounds reproduced earlier in this judgment.
The first question that arises from these three issues argued by the parties is whether the appellants can “exclusively own quarry as contained in its Constitution” In its ordinary meaning, “quarry” means.
“OPEN AREA FOR MINING an open excavation from which stone or other material is extracted by blasting, cutting or drilling”
(See ENCARTA WORLD ENGLISH DICTIONARY, Page 1537)
In its simplest meaning, to “exclusively own quarry” means quarry belongs to the appellants, to the exclusion of all other persons or group of persons. Put differently, save the appellants no person or group of persons can possess a quarry.
To confirm the appellant’s assertion of exclusive ownership of quarry, it is necessary first to examine the rules or articles that bind the appellants together as an association, that is their constitution, exhibit P2. I have examined the Constitution of Association of Tipper and Quarry Owner of Nigeria, the appellants’ constitution – exhibit P2. Notwithstanding the strong and incisive argument of Mr. Ogunwole (SAN), learned senior counsel for the appellants, there is no part, chapter, section or paragraph of the appellants’ constitution (exhibit P2) which provides that they can “exclusively own quarry” as canvassed by them in this court. This question/issue is hereby resolved against the appellants.
In view of my decision on Issue No. 1, the appellants’ Issue No. 2 has become a matter of mere academic relevance. Courts of law have no business with the resolution of academic questions. Undertaking such excursion is an exercise in futility. See U. B. N. LTD. V. EDIONSERI (1988) 1 NSSC 603 at 601 and BHOJWANI V. BHOJWANI (1996) 7 SCNJ 16 at 20-21. By its very nature, an academic question or issue is most suitable for discussion and resolution by the academia.
In case it turns out to be that I erred in my reasoning that having resolved that there is no provision in the appellants’ constitution which provides that they “exclusively own quarry”, Issue No. 2 has become academic, the question is whether a provision in the appellants’ constitution providing that they “can exclusively own Tipper Lorries” offends section 40 of the Constitution of the Federal Republic of Nigeria, 1999. Section 40 of the Constitution of the Federal Republic of Nigeria provides thus:
“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.”
A lorry is a large vehicle for transporting goods by road. A tipper lorry or tipper truck is a lorry built in such a manner that the platform carrying the load can be raised to allow the load to slide off. See ENCARTA WORLD ENGLISH DICTIONARY, pages 1114 and 1957. Lorry, whether with or without tipping platform or device, is commonplace movable property in Nigeria and common sense a sound practical judgment derived from experience, will quickly lead one to a conclusion that tipper lorries cannot be exclusively owned by a group of persons to the exclusion of other persons or groups of persons.
In the present case, a careful examination of the appellants’ constitution does not reveal any provision therein indicating that only the appellants are entitled to own tipper lorries in Nigeria. Assuming that the appellants constitution – exhibit P2 has any such provision, it is undoubtedly unconstitutional.
The appellants argued that their association, having been registered under Part C of the Companies and Allied Matters Act, “is a subsidiary legislation to protect the interest of their members in running their business”. The appellants’ constitution cannot by any stretch of legal imagination be regarded as a “subsidiary legislation”. Legislation means:
“1. The process if making or enacting a positive law in written form, according to some type of formal procedure, by a branch of government constituted to perform this process. – Also termed lawmaking, stature-making.
2. The law so enacted.
(See Blacks Law Dictiondry, Eighth Edition, Page 918).
If the meaning of “legislation” is borne in mind, one wonders how a constitution of an association of tippers and quarry owners can validly be regarded as a subsidiary, subordinate or secondary legislation. The act of registering the appellants’ association under Part C of the Companies and Allied Matters Act cannot change the status of their constitution into a subsidiary legislation as claimed by the appellants. The appellants’ constitution remains only a body of binding rules for the members of their association. It is not a subsidiary legislation as it was not made by a branch of any of the three tiers of government in Nigeria empowered to undertake a lawmaking process. The appellants’ constitution is merely one of the statutory requirements for the appellants’ association to be registered as an incorporated body and not a subsidiary legislation. See section 591 (2) (a) of the Companies and Allied Matters Act.
The appellants have forcefully flaunted their constitution as a subsidiary legislation. Even if in a fit of flattery, one is carried away in agreeing with the appellants, no provision in the appellants’ constitution can validly derogate from the provisions of section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as the Constitution of the Federal Republic of Nigeria is the supreme law of this Country and all laws primary or secondary laws, must bow before it.
In his brief of argument, the learned senior counsel for the appellants referred the court to chapter 3 of the appellants’ constitution and argued thus:
“Unless and until the Respondents are also registered to perform the same function throughout Nigeria they have to be part of the appellants if they are running the same business.”
The relevant provisions in chapter 3, the membership section of the appellants’ constitution, are hereby reproduced:
“Membership of this Association shall be open:-
(i) Any person who is above 30 years old and who has been normally engaged in the trade or the industry which this Association represents.
(ii) All classes of Tippers and Quarry Owners throughout the Federation Republic of Nigeria, for whom the membership of this Association is compulsory.
(12.) All classes of Tippers and Quarry Owners throughout the Federation shall compulsorily be registered members of this Association except Government and public utility corporations with the Federation. Any Government or public utility establishments shall when on private or commercial enterprises register such tippers and quarries with the Association and pay the prescribed fees with the Association, who shall only register without complying with section 10 of this constitution shall comply with section 14 hereof.”
The foregoing provisions in the appellants’ constitution which compulsorily or mandatorily require “All classes of Tippers and Quarry Owners throughout the Federation of Nigeria” to be members of the appellants’ association are clearly contrary to section 40 of the constitution of the Federal Republic of Nigeria and, therefore, void. See section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999.
I had earlier held that the appellants’ constitution is not a subsidiary legislation as they caim, Assuming that their claim were right, the Constitution of the Federal Republic of Nigeria, 1999 is the grundnorm of the people of Nigeria. In making their constitution, it was imperative for the appellants” ‘legislation’ to be consistent with the clear provisions of the Constitution. That a legislation which is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria is null and void, see the cases of IFEGWU V. F. R. N. (1991) 6 NWLR (pt. 200) 708 at 760-761 and ANKA V. LOKOJA (1996) 9- 10 SCNJ 51 – cited by S. T. Hon. (SAN) in his book:
CONSTITUTIONAL LAW AND JURISPRUDENCE IN NIGERIA, page 33.
The cases of THE REGISTERED TRUSTEES OF NATIONMAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGRIA & ORS. V. MEDICAL AND HEALTH WORKERS, UNION (supra) and OSAWE V. REGISTRAR, TRADE UNIONS (supra) heavily relied upon by the appellants are grossly inapplicable to this case. For the sake of brevity the appellants are not a registered trade union. Trade unions are special because they are usually formed to collectively negotiate either on behalf of employers or employees, as the case may be, about work-related matters or issues, such as salaries, emoluments, benefits and working condition. The registration, regulation and general control of trade unions is under the Trade Unions Act. See section 1 of the Trade Unions Act which defines “trade union” as
“any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers…”
In the instant case, assuming that the appellants’ associations were a trade union, the appellants have unduly laid emphasis on the qualifications or requirements for membership. The objects of an association determine what it can validly do or engage in. The appellants abundantly abandoned their objects, as reproduced earlier, and decided to engage the respondents in an unholy ‘war’ thereby trying to prevent the respondents from pursuing their lawful business as they, being Nigerians, are entitled to carry out. Trade Unions, particularly those for workers ought not and must not engage in activities oppressive of other people more or less the same exploitative activities of their employers and for which such unions were formed and registered to prevent. See LYONS & SONS V. WILKINS (1896) 74 L. T. Rep. (N. S.) 364 where LINDLEY J. stated thus:
“Trade unions up to a certain point have been recognized now as organs for good. They are the only means by which workmen can protect themselves from the tyranny of those who employ them. But the moment that trade unions become tyrants in their turn, they are engines for evil: they have no right to prevent people from working on any terms that they choose”.
The appellants were registered under Part C of the Companies and Allied Matters Act and the purposes for which an association can be incorporated thereunder are specified in section 590 of the Act:-
(1) where one or more trustees are appointed by any community of persons bound together by Custom, religious, kingship or nationality or by anybody or association of persons established for any religious, educational literary, scientific, social, development, cultural, sporting or charitable purpose, he or they may, if so authorized by the community, body or association (hereinafter in this Act referred to as “the association”) apply to the Commission in the manner hereafter provided for registration under this Act as a corporate body.
(2) Upon being so registered by the Commission, the trustee or trustees shall become a corporate body in accordance with the provisions of section 679 of this Part of Act.
Section 591 (1) of the Companies And Allied Matters Act provides that the aims and objective of an association to be registered under Part C “must be for the advancement of any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose and must be lawful”.
Apparently to satisfy the requirements of Part C of the Companies and Allied Matters Act, the fundamental objectives of the appellants’ association are clearly specified in chapter 2 of their constitution – exhibit P2 and they are:
1. To promote the spirit of unity amongst the various organizations and associations having identical or complimentary or near aims and aspirations of the like of this association all over Nigeria.
2. To promote, participate in and encourage social, sporting and charitable in all parts of Nigeria.
3. To promote the welfare of its members in all ways possible.
4. To use and apply its funds for the attainment of all or any its objectives and service to any community including in particular its immediate communities.
From the averments in the appellants’ statement of claim and reply to ‘the respondents’ statement of defence and counter claim, it is obvious that the appellants abandoned their aims and objective and engrossed themselves deeply in business/commercial activities. They did not stop there, they proceeded to force, coerce or conscript the respondents to be members of their association contrary to the clear constitutional provision in section 40 of the Constitution of the Federal Republic of Nigeria, 1999 reproduced hereinabove. Paragraphs 5-13 of the appellants’ statement of claim are hereby reproduced for the appreciation and emphasis of the point being made:
“5. The Plaintiffs have exclusive right to own Tippers and Quarry and to organize themselves in garages for the purpose of carrying on their business.
6. The Defendants carry out similar business with the plaintiffs even though they are not registered to carry out same with the plaintiff.
7. The Plaintiffs were opposed to the Defendants for carrying out similar business with them and operating parallel garages for the purpose.
8. This gave rise to conflicts and on many occasions, open clashes Consequent upon which the Police, the State Security Service, the Bureau of Policy Co-ordination (Office of the Governor) had to interview.
9. This gave rise to many and/or several peace meetings resulting in the agreement entered into by both parties on the 4th day of October, 2004 and signed on 5th day of October, 2004.
10. After the agreement, the Defendants see themselves as not independent of the plaintiffs since they cannot operate their Tipper Lorries without being duly registered with the plaintiffs.
11. As a duly registered Quarry Owners, the plaintiffs have no cause to take permission from the Defendants before operating their quarry sites for gravel and sand only for commercial purposes.
12. Many members of the Defendants complied with the plaintiffs’ instructions in their respective garages except those who are operating at Odi-Olowo, Iwalesin and Ojude Ata respectively and gave rise to many problems and disagreements.
13. The Defendants want to operate their tippers independently of The Plaintiffs, for commercial purposes and even hire tippers from other States and/or towns”.
The appellants accordingly sought the following prayers, among others, in their paragraph 21 of their statement:
1. A Declaration that the Plaintiffs have exclusive right to own Tipper and Quarry and to organize themselves in garages for the purpose of carrying on their business.
2. A Declaration that the Defendants cannot use their tippers Lorries to load or carry sand from Quarry unless they are duly registered with the Plaintiffs and subject themselves to the Plaintiffs’ Constitution.
3. A Declaration that the Defendants cannot operate their Tippers Lorries independently of the Plaintiffs, organize and/or collectively own garages for purpose of operating their Tippers Lorries for loading and/or carrying sand.
4. An Injunction restraining the Defendants by themselves, servants or agents or howsoever otherwise from establishing and/or creating garages or zones or whatever name called for themselves for the purpose of carrying sand and/or gravel for commercial purpose independent of the Plaintiffs.
5. An Injunction restraining the Defendants by themselves, Servants or agents of however otherwise from loading and/or carrying sand and gravel with their Tippers Lorries for sale or offering them for sale under any guise independent of Plaintiffs.
As can be seen from their pleadings’ the activities of the appellants, which culminated in their dispute with the respondents, are not for the advancement of any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose. Assuming that the appellants’ activities, as can be gleaned from their pleadings, are for the purposes specified under sections 590 (1) and 591 (1) (b) of the Companies and Allied Matters Act, the mere fact that they are registered under Part C of the Companies and Allied Matters Act did not grant them a monopoly over the ownership of quarries and lorries and the establishment garages for businesses related thereto.
The right to freedom of association is constitutionally guaranteed and can only be derogated from as provided by the Constitution of the Federal Republic of Nigeria or any other valid Act of the National Assembly. Under section 40 of the Constitution of the Federal Republic of Nigeria, 1999 a person has the right to assemble freely and associate with other persons, and in particular he may form or belong to any association for the protection of his interests. That the appellants are incorporated under Part C of the Companies and Allied Matters Act cannot be a justifiable legal basis for coercing every person, including the respondents, to join their association. The appellants can only encourage willing members of the public to become members of their association. Some of the appellants’ prayers in paragraph 21 of their statement of claim, which I have reproduced in this judgment, if granted would be tantamount to encouraging or even condoning illegality. Can a court of law, in Nigeria, grant an order forcing a band worshippers operating without being registered, to join a religious group merely because that group has been incorporated under Part C of the Companies and Allied Matters Act and its main objective is the advancement of religious purpose? Such a grant would be wrong and unconstitutional.
If the respondents are operating their businesses illegally or without being registered, as claimed by the appellants, are there no regulatory government agencies or departments that are legally empowered to handle such cases? Was coercing the respondents to be members of the appellants’ association the only option open to the appellants?
The appellants argued that the respondents are not registered as they are not “UNITED QUARRIABLE ASSOCIATES” which is the name in exhibit D1 – Certificate of Registration No. LAZ006539 tendered by PW7- the 1st respondent Chief Ramoni Yusuf. They contended that the best evidence of registration is the certificate of registration. From the evidence tendered in the lower court, as borne out by the record of appeal, PW2-Oyelude Alajide, who testified for the appellants, said in his evidence-in-chief that he was the State Secretary of the defendants – now respondents.
He said that the 1st respondent – Chief Ramoni Yusuf was the Zonal Chairman of the respondents. Under cross -examination, PW2 testified, inter alia, at page 23 of the record as follows:
“I said in my evidence that the two associations are…distinct from one another.
I am the Secretary of the Defendant.
The first registered name of the association is United Quarriable Associates. It was registered by the Corporate Affairs Commission.
I processed the registration. I was one of the members that registered it ………………………
The registered office is at 7, Oja-Oba Osogbo.”
An examination of exhibit D1 clearly shows the registered principal place of business of the UNITED QUARRIABLE ASSOCIATES is “NO. 7, OJA OBA OSOGBO OSUN STATE”.
Exhibit D13 tendered by the respondents is a “Quarrying License” issued to United Quarriable Associates and it was addressed through the 1st respondent – Chief Ramoni Yusuf. That the Registration Certificate, exhibit D1, issued to United Quarriable Associates belongs to the respondents is a matter that ought not to be put in dispute as the admission of PW2 – one of the appellants’ witnesses clearly confirmed and corroborated the evidence of the respondents on this issue. That the respondents are registered is not in dispute even on the face of the parties’ pleadings.
The respondents pleaded in paragraph 3 (a) of their statement of defence/counter claim as follows:
“3. With reference to paragraph 2 and 4 denied and paragraph 3 Admitted of the statement of claim. The defendant state.
(a). That their business name by which they are known and trade by which they are formally addressed is United Quarriable Associates registered by the Corporate Affairs Commission, Abuja, under the Companies and Allied Matters Act. The Certificate of Registration No.LAZ006539 dated 20th day of January, 1995 is hereby pleaded and will be relied upon at the trial of this matter. The Business engages primarily in the production and supply of quarriable construction materials viz, gravel, sand, stone, rock, silica sand kaolin, clay etc”.
The appellants’ responded by pleading in paragraph 3 of their reply thus:
“With reference to paragraphs 3, 4, 5, and 6 of the Defendants’ Statement of Defence and Counter Claim, the Defendants are not registered to operate Tipper Lorries, the operation of Tipper Lorries is the exclusive preserve of the Plaintiffs.”
From the foregoing, the appellants did not join any issue with the respondents averment that the name with which they were formally registered was United Quarrible Associates. The appellants’ only complaint was that the respondents were not registered to operate tipper lorries. They did not aver that the respondents were not registered. It is trite law that parties are bound by their pleadings. See RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (Pt.2) 350 AT 365, paras. D-E, where the Supreme Court, per COKER, JSC made it clear:
“The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which alone the Court adjudicates between them. The law reports are replete with decisions dating very many years back, that a party is bound by his pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See Alhaji Karimu Lemomu & Ors. V. Hadji Noahs Alli-Balogun & Ors. (1975) 1 All N.L.R. 30 at p.40.”Exhibits P1 the appellants’ certificate shows that the appellants were incorporated on the 5th day of September, 2003. On the other hand, exhibit D1 indicates clearly that the respondents were registered on the 20th day of January, 1995 – more than 8 (eight) years before the appellants were incorporated. That the respondents were registered earlier than the appellants was confirmed by the uncontroverted evidence of one of the appellants’ witness – PW2, who testified under cross-examination at page 23 of the record, inter alia, as follows:
“The Plaintiffs’ Association was incorporated after Defendants’ registration.”
Unlike the appellants, the respondents were registered to do business by the Corporate Affairs Commission as borne out by exhibit D1 (the respondents’ registration certificate) which indicates that the respondents were registered under Part B of the Companies And Allied Matters Act to do business including ‘PRODUCTION AND SUPPLY OF CONSTRUCTION MATERIALS”.
In the present case, the appellants’ prayers were rightly refused by the Lower Court.
Issue No. 2 is also resolved against the appellants.
The third issue formulated by the appellants is whether the evidence given by PW2 and PW3 is not covered by the appellants’ pleading. PW2 was one Oyelude Alajide. His evidence (both evidence-in-chief and under cross-examination) spans pages 21-26 of the record of appeal. PW3 was one Jacob Adekunle. The evidence of PW3 is at page 26 of the record. Although the record shows that PW3 was not re-examined, the evidence given by him under cross-examination was not demarcated from that given that in-chief. Be that as it is, I have examined the evidence given by both PW2 and PW3. The evidence given by these witnesses covers a part of the appellants’ pleading and also a part of the respondents’ pleading. This is all I can say for now, as the answer to this issue may as well be useful in the determination of the other issues in the appeal.
ISSUE NO.4
Whether it is proper or not to declare Exhibit P3 null and void even though it is contrary to the Plaintiffs’ Constitution.
The appellants referred to the averments in paragraphs 6, 7, 8, 9, 10 and 11 of their statement of claim and exhibits P1, P2 and P3 and argued that since the lower court found that exhibit P3 contravened the appellants constitution, it (the lower court) ought to have declared the agreement (exhibit P3) null and void. They asked this Court to hold that “moral and sentiments have no place in law.”
In their reply, the respondents argued that the appellants created the circumstance that resulted in the signing of exhibit P3 and, therefore, it was not proper for the appellants to seek for a nullification of exhibit P3 merely because it contravened their constitution. The appellants, however, contended in their reply brief that under section 681 of the Companies and Allied Matters Act, 1990 the provisions of their constitution could only be altered by a resolution passed by a simple majority of the members and approved the commission. They contended that since exhibit P3 attempted to alter their constitution it (exhibit P3) was void.
I entirely agree with the respondents that exhibit P3 – a communique containing agreement made and resolutions taken freely between the respondents and the appellants ought not to be nullified merely because it is inconsistent with or it is contrary to the provisions of the appellants’ constitution. A party should not be allowed to freely resile from its commitments on the ground only the agreement it voluntarily executed is against its internal rules.
In my humble opinion to nullify exhibit P3 is equivalent to encouraging or assisting fraud and injustice. A court of law is a court of justice and not a court of injustice. The appellants, who knew or ought to know that exhibit P3, contravened their constitution, yet they freely negotiated and signed it, should be heard to complain.
Issue No. 4 is hereby resolved against the appellants.
Issue No. 5
Whether the learned trial judge was right by granting Reliefs 1 & 3 claimed by the Defendants in their Counter Claim.
The appellants referred to the claims in the counter claim of the respondents and argued that the respondents had the onus of tendering their certificate of incorporation. The appellants contended that the counter claim ought to have been dismissed since the respondents failed to tender certificate of registration. They submitted that the lower court was wrong in granting relief 1 and 3 claimed by the respondents.
In response, the respondents said that their certificate of registration No.LAZ 006539, issue to United Quarriable Associates by the Corporate Affairs Commission, was tendered in evidence in the law court as exhibit “D1″. The respondents referred evidence of DW3, DW4 and DW7 and were rightly granted by the trial court on the preponderance of evidence adduced to justify their counter claim. They referred the Court to the cases of ATUYEYE & ORS. V. E. Ashamu (1987) 1 N.W.L.R. (Part 49) 267 at 281; AMIRA (NIGERIA) LTD. V. M.A.L. (NIGERIA) LTD. (2001) 17 NWLR (Pt.742) 469 at 502; MOGAJI & ORS. V. ODOFIN & ORS (1998) 4 SC 91 at 94 – 95 and sections 135 – 137 of the Evidence Act.
The respondents urged the court to resolve this issue in their favour.
In their reply brief, the appellants referred to EXECUTIVE GOVERNOR OF KWARA STATE & ORS. V. ALHAJI MOHAMMED LAWAL & ORS. 2007) 13 NWLR (Pt.1051) 347 at 378 – 399, paras H – D and contended that since the respondents were trading under an unincorporated name, the relief 1 and 3 granted to the respondents could not stand.
The appellants’ complaint is that since the respondents did not tender their certificate of registration or incorporation the lower court erred in granting relief 1 and 3 claimed by the respondents in their counter claim. I have already held that the respondents’ registration was not a live issue fixed by the parties’ pleadings in the lower court. In any case, the respondents, as stated earlier in this judgment, were able to prove that they were duly registered.
Without more, issued No. 5 is hereby resolved against the appellants.
ISSUE NO. 6
Whether or not the Appellants have discharged the onus of proof that the Respondents are owing the Appellants the sum of N360,000.00 (Three Hundred and Sixty Thousand Naira)”.
The appellants referred to paragraphs 14 and 15 of their statement of claim and the evidence of PW3 Chairman of Stadium Branch of the respondents and argued that the admission of this witness, a member of the respondents, destroyed the respondents’ case. They contended that, since the evidence of PW3 was unchallenged and uncontroverted, the learned trial judge ought to have believed it and relied on it.
Learned Senior Counsel for the appellants said that the evidence of one of the respondents’ witnesses – DW9 also confirmed the respondents’ indebtedness. He argued that the lower court was wrong to have awarded only N87,500.00 in favour of the appellants when the amount due and payable from the respondents to the appellants.
Mr. Ogunmuyiwa, learned counsel for the respondents, argued the issue No.6 argued by the appellants cannot be traced to any of the issues formulated. The learned counsel then submitted thus:
“In the event of the non-formulation of issue No.6, I respectfully urge Your Lordship to discountenance the Appellants’ Argument on Ground 6 of the Grounds of Appeal and to strike out the ground on the authority of the decision in Odubeko Vs. Fowler (1993) 7 NWLR (Pt. 308) 63 at page 65 where ONU, J.S.C. Delivering the Leading Judgment held.
“Now in the first brief the appellant has elected to argue the grounds (he in fact has abandoned ground 1 therefore). This Court has held times without number that it is the issues and not the ground that should be argued. This is founded in the established principle of law that it is on the basis of the issues, not grounds that parties found their contention. See Macaulay Vs NAL Merchant Bank (1990) 4 NWLR (Pt. 1441 283 at 321…… since in the instant case, ground 1 which has been abandoned is not related to any of the issues proffered, it is accordingly struck out.”
The learned counsel further referred the Court to the case of ALHAJI ALUBANKUDI V. ATTORNEY GENERAL OF THE FEDERATION & ANOR. (2002) 17 NWLR (Pt.796) 338 at 357 where it was held thus.
“There can be no gain repeating the rule of Law that arguments canvassed which do not arise from an issue for determination go to no issue.”
In the alternative, the respondents referred to paragraphs 17 and 18 of their statement of defence where they pleaded one of the terms of the communique (exhibit P3) and also pleaded that tickets supplied to them had been fully paid for. They referred to the evidence before the lower court, especially exhibits P4 and D22 in respect of the sums of money received from the respondents.
Mr. Ogunmuyiwa said that the evidence of PW2, PW3 and PW4 under cross-examination contradicted their respective evidence-in-chief. He argued that the appellants failed to prove their claim on the balance of probability as required by law.
The appellants’ argument, contrary to the views of Mr. Ogunmuyiwa, learned counsel for the respondents, clearly relates to and flows from issues No. 6 reproduced hereinbefore. The request that argument on issue No. 6 be struck out is hereby overruled.
I have examined the record of appeal on issue No. 6 raised by the appellants. At pages 87 and 88 of the record of appeal, the learned trial judge painstakingly evaluated the evidence adduced by the parties in respect of their monetary claims. After a thorough analysis of the evidence, the learned trial judge rightly, in my view, arrived at the sum of N87,500.00 awarded in favour of the appellants. I have no reason to disturb the finding of His Lordship, the learned trial judge on this issue.
CONCLUSION
All the main issues in this appeal having been resolved against the appellants, the appeal ought to be dismissed as it lacks merit, This appeal is hereby dismissed, accordingly.
The judgment of the lower court is hereby affirmed. The sum of N50,000.00 is hereby awarded as costs against the appellants in favour of the respondents.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother Adumein, JCA just delivered, His Lordship has meticulously considered and ably resolved all the issues in contention in this appeal.
My brief comments are by way of emphasis.
Section 40 of the Constitution of the Federal Republic of Nigeria 1999 provides:
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 provision 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 the commission does not accord recognition.”
Thus the right to freely associate is unfettered except with regard to political parties not accorded recognition by the Independent National Electoral Commission (INEC). See: Abubakar Vs. A. G. Federation (2007) 3 NWLR (1022) 601 @ 638 B – G.
In the exercise of his right to freedom of assembly and association, a citizen has no right to infringe on another’s enjoyment of the same right. It is the right of every citizen to decide which association or group of persons are in the best position to protect his interests. No association or group of persons can arrogate to itself the authority to make that determination on behalf of another.
I am in complete agreement with my learned brother in the lead judgment that it was unconstitutional for the appellant to seek, by chapter 3 of their constitution, to compe all classes of Tippers and Quarry Owners throughout the Federation to be registered members of their Association. The registration of the appellant’s Association under Part C of the Companies and Allied Matters Act Cap 20 Laws of the Federation 2004 confers no such authority on them. Indeed, their activities as owners and operators of tippers and quarrying business are clearly outside the objects for which an association can be incorporated under Part C of the Act.
The respondents clearly showed by Exhibit D1, their certificate of registration that they were registered on 20/1/95 under Part B of the Companies and Allied Matters Act to do business including “production and supply of construction materials.” The appellants on the other hand were registered on 5/9/03, more than eight years later, under Part C of the Act vide Exhibit P1 to, among other things, “promote, participate in and encourage social, sporting and charitable purposes in all parts of Nigeria.” In fact it was the respondents who were operating in accordance with their certificate of registration. There was clearly no basis for the appellants’ challenge of the respondents’ right to own and operate tipper lorries, carry sand from quarries, and/or operate garages. The learned trial Judge rightly refused their claim in this regard.
For these and the more detailed reasons contained in the lead judgment, I also hold that the appeal lacks merit. I dismiss it and affirm the judgment of the court below, I abide by the order for costs.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, Moore A. A. Adumein JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. This appeal surely lacks merit. It beats the imagination that an association would include in its constitution a clause requiring all classes of tipper and quarry owners to compulsorily register as members of the association. Such a clause is clearly inconsistent with Section 40 of the Constitution of the Federal Republic of Nigeria. The appellant who is registered under Part C of the Companies and Allied Matters Act is apparently confusing its status with that of a registered Trade Union. Even a registered Trade Union cannot do what the appellants attempted to do – engaging in activities oppressive of other people. The learned trial Judge was certainly right in refusing the declarations sought by the appellant including the declaration that the defendants cannot use their tipper lorries to load and carry sand from quarries unless they are registered with the appellant and willing to subject themselves to the Constitution of the appellant. I too affirm the judgment of the lower court. I abide by the order as to costs in the leading judgment.
Appearances
R. A. Ogunwole (San), with M. A. Rufai, Esq.For Appellant
AND
C. A. Ogunmuyiwa, Esq.For Respondent
