Adetola Ojomo & Anor V. Emmanuel Ijeh & Anor (1987)

LawGlobal-Hub Lead Judgment Report

MICHAEL EKUNDAYO OGUNDARE, J.C.A.

 By a writ of summons issued on 24/11/82, the plaintiffs who are members of the Non-Academic Staff Union of Educational and Associated Institutions (NASU for short), University of Ibadan branch and who were, at all time relevant to the action leading to this appeal, the branch chairman and branch secretary respectively, commenced proceedings on their behalf and on behalf of members of NASU, University of Ibadan Branch claiming against the defendants as hereunder:

(1) A Declaration that the Executive Committee of the University of Ibadan Branch of the Non-Academic Staff Union of Educational and Associated Institutions (hereinafter referred to as N.A.S.U.) elected on 2nd December, 1981 under the Chairmanship of Adetola Ojomo is the lawful Executive Committee of the aforesaid branch of N.A.S.U.
(2) Further and in the alternative that the purported election of another N.A.S.U. Branch Executive Committee on 27th October, 1982 is ultra vires, unconstitutional, null and void and of no effect whatsoever.
(3) A Declaration that the grant of Unit Status by the Defendants to the College of Medicine University of Ibadan Branch is Ultra vires, null and void and contrary to Rule 11 of the N.A.S.U. Constitution.
(4) Injunction restraining the defendants, servants, appointees and/or other functionaries from interfering with the composition and functioning of the said Adetola Ojomo Branch Executive Committee.

The 2nd defendant is the parent body of NASU while the 1st defendant was at all time relevant to the proceedings its General Secretary.
Pleadings were filed and exchanged. The plaintiffs further filed a Reply to the Statement of Defence while the defendants, in turn, filed a Rebuttal to plaintiffs’ reply to the statement of defence.
In the course of the proceedings in the court below, following an application by the plaintiffs for an order of interim injunction restraining the defendants, their servants, agents etc from performing the duties and responsibilities of the Branch Executive Committee of the NASU University of Ibadan branch, Ogundere, J (as he then was) who heard the application made an order that:

“both parties be and are hereby restrained by themselves, their servants, agents, appointees, functionaries or any person acting by or with their authority from performing the duties and responsibilities of the Executive Branch of the Non-Academic Staff Union of the Educational and Associated Institutions University of Ibadan Branch pending the determination of this matter which I shall give accelerated hearing.”
(italics mine)

This order was made on 11th April 1983. On 26th May, the plaintiffs again moved the lower court for “an order of committal for contempt to be made against the defendants/respondents for flagrant disobedience to the order of Injunction made by this Honourable Court on 11th April, 1983 and for such further or other orders………”
After hearing both sides on the application Ogundere, J in a reserved ruling delivered on 25th July, 1983 found both Charles Adeniyi Adeyemi and Emmanuel Ugbeamaka Ijeh guilty of civil contempt of court and sentenced each to 3 months imprisonment with hard labour or a fine of N1,500 in lieu thereof; he discharged and acquitted Moshood Oladimeji Akinade “for technical reasons”. Both 1st and 2nd defendants and one Peters Adeniyi appealed against this decision. This is the first appeal to be filed in these proceedings. The appeal will be later determined in this judgment.

At the trial of the substantive action, each party called in all eight witnesses and tendered a number of documents including the 1982 constitution of the Union (2nd defendant). At the conclusion of trial, the learned trial Judge (Sijuwade, J) in a reserved judgment, found against the plaintiffs and dismissed claims (1), (2) and (4). He however granted the declaration sought in claim (3). It is against the dismissal of their claims (1), (2) and (4) that the plaintiffs have appealed to this Court upon six original grounds of appeal and, with leave of this Court, 3 additional grounds. The 3 additional grounds are herein renumbered 7 – 9 following on the original grounds.
The said grounds read as follows:

1. The learned trial judge erred in law in accepting oral conflicting evidence of witnesses, inadmissible evidence, of what took place at the meeting of 27th October, 1982 when the proper evidence, not tendered at the proceeding was the minutes of the meeting of the day.
2. The learned trial Judge erred in law in holding that the allegation of fraud made against the Plaintiffs’ committee was proved on mere assertion of witnesses when by Law they have to prove beyond reasonable doubt the allegation of fraud made against the plaintiffs committee a duty which the Defendants failed to discharge in the circumstances of this case.
3. The learned trial Judge erred in law in ultimately believing the evidence of DW 2 having earlier doubted the wisdom of believing the witness who admitted knowingly signing a falsified document as correct and who gave oral evidence to contradict his signed statement of account which evidence should have been rejected in its entirety as unreliable evidence.
4. The learned trial Court erred in law in holding that the election of 27th October, 1982 was lawful having found that it was merely a caretaker committee which was not relevant to the issue before the court as it was not so pleaded.
5. The learned trial Judge erred in law in holding that the election of new officers on 27th October 1982 was legal when the meeting was not summoned for election of officers and could not have been part of the proceedings of that day not being on the agenda.
6. The judgment is against the weight of evidence.
7. The learned trial Judge erred in law and misdirected himself in putting the burden of proof that there was no mismanagement of the Union funds on the Plaintiffs when in law it is the Defendants who have to prove their allegation of mismanagement beyond reasonable doubt when he held

“The burden of proof in order to exculpate the Plaintiffs of the allegation of mismanagement of Branch Union’s fund lies on the Plaintiffs, the Defendants having accused them of such mismanagement if they wanted to continue in office and enjoy the confidence of the members, which proof I am afraid they have failed to discharge.

The learned trial Judge erred in law and misdirected himself on the fact in relying on 1982 Constitution which was not in evidence before him having rejected it as Exhibit and relying on Exhibit “U”.

Particulars
1. Exhibit “U” is not 1982 Constitution of the NASU, it is proceedings of First Rules Conference of 1982.
2. No proof that Rule 4(3) of 1977 Constitution of NASU has been complied with.

9. The learned trial Judge erred in law and misdirected himself in relying on the so called statement of defence and evidence led by the Defendants on it when the said so called statement of defence was not properly before the Court.

Particulars
(i) The statement of defence was filed out of time and extension of time was granted on payment of filing fees.
(ii) No filing fee was paid.
(iii) No record of any filing fee paid.

From the pleadings and the evidence led at the trial the following facts emerge: The 1st defendant was at all time relevant to the action in the court below the General Secretary of the 2nd defendant Union which has branches in most tertiary institutions in the country. The two named plaintiffs were the chairman and branch secretary respectively of the University of Ibadan Branch of the 2nd defendant Union. The Union is a trade union registered under the Trade Union Act, 1973 and Trade Union (Amendment) Act, 1978. The 2nd defendant Union had a constitution – the 1977 constitution, (Exhibit J) which governed its affairs and laid down its objects, rules and regulations. At the Rules Conference of the Union held in May, 1982, a new constitution – the 1982 constitution (Exhibit U) was approved. It would appear that both parties relied on the 1982 constitution as being the current constitution binding on the Union.
On 2nd December 1981, the plaintiffs’ Executive Committee was elected into office to run the affairs of the University of Ibadan branch of the 2nd defendant Union. Not long after this election, a pressure group known as the OJO GROUP emerged. This group made series of allegations of wrongdoings against the plaintiffs’ executive committee which were found baseless by the defendants. A general meeting of the Branch Union was summoned for 27th October 1982 by the plaintiffs’ executive committee. There appeared to have been some disorder at the meeting but the Ojo Group claimed that a vote of ‘no-confidence’ was passed on the executive committee and at a subsequent election at the meeting a new executive committee was elected into office consisting mainly of members of the Ojo group. The defendants recognized the new executive committee and communicated this fact to the Registrar of the University of Ibadan by a letter (Exhibit ‘A’) dated 27th October 1982. This letter provoked the plaintiffs to institute their action.
The plaintiffs denied the validity of their removal from office and the election of the new executive committee. Needless to say, that the defendants contended to the contrary.
The defendants had on 31st August 1982 granted Unit Status of a Branch Union to the College of Medicine of the University of Ibadan. The plaintiffs objected to this move by the defendants.