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Alex Oladele Elufioye & Ors Vs Ibrahim Halilu & Ors (1993)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C.

The plaintiffs in this case are members of the National Union of Banks, Insurance, Financial Institutions Employees, which Union is the 18th defendant. The 1st to 11th defendants were elected as part-time officers of the 18th defendant (hereinafter referred as “the Union” simpliciter), at its last National Delegates Conference held between 26th and 28th November 1985.

The 12th defendant is a full-time national officer of the Union, its substantive Deputy General Secretary, and its Acting General Secretary with effect from 15/9/87 when the substantive holder of that office retired. The 13th to 17th defendants are Banks where the union has or is believed to have accounts.

The plaintiffs, on 1st December 1988, instituted by way of originating summons an action in the High Court of Lagos State Claiming the following refiefs:-

(i) a determination of the question whether the respective terms of office of each of the 1st-11th defendants expired on 28/11/88 having regard to the provisions of Rule 10(iii) of the Constitution of the 18th Defendant Union (hereinafter referred to as “the Union”);

(ii) a determination whether the declaration made by the 151 defendant on 19/11/88 to the effect that the National Delegates Conference of the Union would not be held in November 1989 (sic) but at some

other time in or before November 1988 (sic) is inconsistent with the Constitution of the Union and therefore null and void;

(iii) a declaration that only a National Delegates Conference can alter the provisions of the Constitution of the Union and that the purported decision of the National Executive Council (NEC) that no National Delegates Conference of the 18th Defendant Union be held in November 1988 is a violation of the Constitution of the Union and that the same is null and void and of no effect;

(iv) a declaration that the respective terms of office of each of the 1st-11th defendants ceased at the expiration of three years from the 28th of November 1985;

(v) injunction to restrain each of the 1st-11th defendant from (a) performing the functions of his office (b) parading himself as an officer of the Union and (c) operating any Bank accounts of the Union or disposing, receiving, negotiating or dealing with any assets of the Union;

(vi) mandatory injunction directing the 12th defendant to summon a National Delegates’ Conference:

an injunction restraining the bankers of the Union from honouring any cheques or payment orders etc until a proper National Delegates Conference shall have been held.

By a motion on notice also dated 1st December 1988 the plaintiffs sought:-

“(i) An Injunction restraining the 1st-11th defendants and each of them from:-

(a) performing any of the functions of the respective office to which he was elected in November 1985;

(b) parading himself as an officer of the union or as a member of the National Executive Council thereof;

(c) operating any of the Bank Accounts of the Union in any Bank or from disposing of, receiving, negotiating or in any way dealing with any of the assets of the Union pending the final determination of this action;

(ii) An Injunction restraining the 13th, 14th, 15th, 16th and 17th defendants from honouring any cheques or orders for payment of money or for the disposal of or other dealing in any security or assets of the 18th defendant union except and until a proper National Delegates Conference shall have been held and fresh

officers of the 18th Defendant Union shall have been elected for that purpose by the 18th defendant union pending the final determination of this action;

(iii) Such further or other Order or Orders as this Honourable Court may deem fit to make in the circumstances.”

At the same time, and on the same day, the plaintiffs also filed an ex parte motion seeking the same reliefs as in the motion on notice pending the determination of the motion on notice filed herein or until further order.

On the 5th of December, 1988 the plaintiffs’ motion ex parte was heard by Adeniji J. who granted the prayers sought and made the necessary orders pursuant thereto, “until further order”, with a return date of 12/12/88 being fixed.

But on the 8th December 1988 an application was filed on behalf of the 1st, 3rd, 4th, 6th, 8th, 9th defendants alone or alternatively with the 18th defendant for an order:-

(i) setting aside the ex parte order made by Adeniji, J. on 5/12/88 on the application of the plaintiffs; and

(ii) such further or other orders as the court may deem fit.

On the 13th December the court decided to take the two applications, calling on counsel for the 1st, 3rd and other defendants who filed the setting aside application to move his motion. Counsel for the 2nd, 7th, 10th, 11th, 12th and 18th defendants next spoke, opposing the application. Whilst counsel for the plaintiffs was addressing the court in opposition to the application for setting aside, the two motions were adjourned to 15/12/88. On that day, as the plaintiffs’ counsel rose to resume his arguments, he was interrupted by the Judge, who proceeded to deliver a prepared ruling, in which he took the view that what the justice of the case required in the circumstances is an early trial, and not arguments and/or ruling on the two motions. He then fixed a date for hearing and at the end of his ruling the order at interim injunction made by him on the 5th December, 1988 was set aside.

Dissatisfied by the setting aside of the interim injunction and generally, the ruling of the High Court, the plaintiffs appealed against same to the Court of Appeal. On the 28th November 1989, the Court of Appeal delivered its judgment on that appeal which it allowed, on the ground that the plaintiffs’ fundamental constitutional right to fair hearing had been breached. It also proceeded to set aside the order of Adeniji J. discharging the ex parte order of interim injunction which he made against the defendants. The 1st, 3rd, 4th, 5th, 6th, 8th, 9th and 18th defendants were aggrieved by the judgment of the Court of Appeal, and have therefore appealed against same to this court by notice of appeal dated 4/12/89. This is the first appeal between the parties in this case.

With regard to the substantive action between the parties in the High Court, pleadings were duly filed and exchanged. But before hearing could proceed, counsel for the 1st, 3rd, 4th, 6th, 8th, 9th and 18th defendants filed a notice in which he set out the following preliminary objections, namely, that:

“(i) The court has no jurisdiction to entertain the action because, at common law an action of this nature does not lie at the instance of individual members of the 18th defendant union and the right of action conferred by Section 16(1) of the Trade Union Act 1973 No.31 is exercisable only at the instance of ‘any five or more members of the union’. Seven of the plaintiffs, to wit – the 2nd, 3rd, 4th, 6th, 7th, 9th and 10th plaintiffs have not subscribed to the funds of the 18th defendant union as prescribed by law and by Rule 4(1) of the Constitution of the union.

(ii) In so far as the claims (or some of them) constitute legal proceedings instituted for the purpose of directly enforcing:

(a) an agreement for the application of the funds of a trade union; and

(b) an agreement binding on the National Executive Council in its relationship with the union.

the court has no jurisdiction to entertain such claims.

(iii) Even if (which is not conceded) the plaintiffs are qualified to sue under Section 16(1) of the Trade Union Act, 1973, they can only sue as such individuals in respect of a claim for an injunction to restrain any unauthorised or unlawful application of the funds of a trade union. Accordingly the plaintiffs have no locus standi to claim any of the other reliefs contained in the originating summons. In other words, it is not competent for the plaintiffs herein to invoke the jurisdiction of the court in this action.”

On 7/1/89, Segun, J., after hearing counsel on this objection, stated in his ruling that he did not see any merit in the preliminary objection filed and argued, and therefore dismissed same with costs to the plaintiffs. The 1st set of defendants appealed to the Court of Appeal against this ruling. Hearing in the Court of Appeal was before a full court in view of the issues raised in the briefs of the parties filed in that-court. The Court of Appeal delivered its reserved judgment on the 15th February 1990, dismissing the preliminary objection filed, holding that the action before the High Court is competent, and ordering that hearing resumes before Segun, J. Against this judgment the 1st set of defendants have again filed an appeal in this court. This is the second appeal in the case. Eight grounds of appeal were filed by the 1st set of respondents (hereinafter called defendants only) against the decision of the Court of Appeal. They are:

(i) The Court of Appeal erred in law in holding that the pronouncement of Segun J. to the effect that three of the rules of the union were “blatantly violated” by the defendants/appellants and that the plaintiffs have an undoubted right to protect their interests “did not disqualify him from adjudicating on the merit of the issues arising on the originating summons.”

Particulars of Error

(a) Objection based on the rule in Foss v. Harbottle is an objection to the jurisdiction of the court as was made clear in Heyting v. Dupont.

(b) In the premises the decision of Segun J. on the validity of the preliminary objection raised by the appellants should have been limited to the sole question of law, namely, whether or not the court had jurisdiction to entertain or grant the reliefs claimed at the instance of the plaintiffs.

(c) In order to decide whether or not the court had jurisdiction, it was unnecessary and irrelevant for it to consider or determine whether or not the appellants had “blatantly violated” three of the rules laid down by the constitution of the union.

(d) A determination of a vital issue which will arise and become relevant only if the court has jurisdiction ought to be determined after both parties have indicated that no further affidavit evidence is intended to be filed and, in any event, after the court has been addressed on the issue.

(ii) The Court of Appeal erred in law in failing to observe that a determination as to whether or not the court has jurisdiction does not involve an adjudication on any issue relating to the matter or matters in controversy between the parties.

Particulars of Error

The particulars under ground (i) hereof are repeated.

(iii) The Court of Appeal erred and misdirected itself in law and on the facts in holding as follows:-

“No provision similar to Rule 7(v) of the Constitution of the 18th defendant was in issue in Foss v. Harbottle. Nor do the Articles and Memorandum of Companies in Nigeria provide for the equivalent of Rule 7(v). Indeed, it is the absence of such a provision that, no doubt, gave birth to the Rule in Foss v. Harbottle, which was a rule based on common sense and natural justice”.

Particulars of Error and Misdirection

(a) Only the law, including enactments of the legislature, can confer jurisdiction on courts of law.

(b) It is (with much respect to the Court of Appeal) erroneous to conceive that it is possible to derive jurisdiction or right of access to a court of law from an agreement between the parties or from the constitution of a trade union.

(c) The absence of provision similar to Rule 7(v) from Articles and Memorandum of Association or cases such as Foss v. Harbottle is due to the reasons given in (a) and (b) above. It has nothing to do with the “birth” of the Rule in Foss v. Harbottle.

(iv.) The Court below erred in law in failing to observe that apart from jurisdiction which inheres in all courts of law at common law and which is preserved by Section 6(6)(a) of the 1979 Constitution of the Federal Republic of Nigeria, it is not open for any group of private citizens – including the members of a registered trade union to make an agreement (including a constitution) conferring upon the court a jurisdiction that otherwise it would lack.

(v) The court below erred in law in failing to uphold the submission of the appellants to the effect that Section 16(1) of the Trade Union Act 1973 must construed as laying down the scope or area of exception to the Rule in Foss v. Harbottle.

(a) Particulars under ground (iii) are repeated.

(b) Unless to the extent to which it expressly so provides, a statute should not be construed as repealing or amending the common law.

(vi) The court below erred in law in failing to observe that the reliefs claimed by the plaintiff in this action were reliefs which, under the Rule in Foss v. Harbottle only the 18th defendant can claim and that the mere allegation that there has been a breach of the rules of the union constitution cannot give every individual member of the company the right to sue.

Particulars

(a) Each and every claim on the originating summons is one in respect of which only the union can sue at common law under the rule in Foss v. Harbottle.

(b) None of the aforementioned claims come within the exceptions laid down by Section 16 of the Trade Union Act.

(vii) The court below erred in law in holding that the High Court has jurisdiction to try this action.

Particulars of Error

(a) The basis of objection to jurisdiction when founded on the Rule in Foss v. Harbottle is that the plaintiff before the court lacks the standing (or locus standi) to invoke the jurisdiction of the court.

(b) That being so the court below erred in considering that it was possible for the company or the shareholders to waive the operation of the Rule. See Heyting v. Dupont (1963) 1 WLR 1192 which in fact decided the opposite.

(viii) The court below erred in law in allowing Alao Aka-Bashorun Esq. to purport to represent the 18th defendant in the proceedings before them.

(a) The Notice of Preliminary Objection as well as the Notice of Appeal herein was filed by counsel – F.R.A. Williams. Esq. S.A.N. for the 18th defendant and others.

(b) The attempt of Mr. Alao Aka-Bashorun to nullify the Notice of Appeal deservedly failed.

(c) In the premises there was no basis for according recognition to Alao Aka-Bashorun Esq. as counsel for the 18th defendant.”

Two sets of briefs were filed by the parties – one each in respect of each appeal. In view of the fact that a determination of the issues raised in the main appeal will determine the fate of the first appeal, it is proposed in this judgment to consider the main appeal only. Although the 15th defendant filed a brief it stated therein that it took a neutral position and would abide by the court’s resolution of the matter. It therefore preferred no oral submissions.

In their brief in the main appeal the defendants set out the issues for determination as follows:-

(i) Whether the provision of Rule 7(v) of the Constitution of the 18th defendant renders the Rule in Foss v. Harbottle inapplicable to that Union.

(ii) Whether in the light of the provisions of Section 16 of the Trade Union Act, 1973, it is permissible for ten individuals who allege that they are members of the union to sue for the reliefs claimed by the plaintiffs in this action.

(iii) Whether, notwithstanding the fact that the learned trial Judge determined in his ruling on the appellants’ Preliminary Objection that certain rules of the Constitution were “blatantly violated” by the appellants, the Court of Appeal was correct in deciding that further proceedings should resume before Segun J.

The plaintiffs adopted the issues framed by the defendants taking exception only to the discussion by the defendants of the representation by counsel of the 18th defendant, which issue it stated is not referred to in the issues framed.

It is convenient at this stage to note that after hearing the parties in this appeal on 8th February, 1993, and adjourning for judgment, this court found it necessary to recall the parties to further address it on the following question, to wit:

“What is the position of our decision (My note: that is, the Supreme Court) in Abubakri & Ors. v. Smith & Ors. (1973) NSCC 451 in the light of the provisions of Section 6 Subsection (6)(b) of the Constitution of the Federal Republic, 1979”

Both sides filed supplementary briefs on this question, but only defendants’ counsel was present on the day fixed for further address, although he did no more than rely on his supplementary brief.

In coming to the conclusion that there is no merit in the preliminary objection of defendants’ counsel set out hereinbefore, Segun J. in his ruling of 7/12/89 set out the rule in Foss v. Harbottle (1843) 2 Ha. 461; 67 E.R. 189 and decided it is not applicable to this case before him beeause Rule 7(v) of the Constitution of the 18th defendant gave any individual member of the union the right to initiate action at his own expense in connection with any breach of the Constitution. The plaintiffs who have shown from their affidavit in support of their originating summons prima facie evidence of breaches of the Constitution of their Union therefore have a locus standi to come to court to challenge such breaches, in protection of their vested interest. The Union’s Constitution, he further stated, having been duly registered under the Trade Union Act has the force of law, and should not be ignored. In the Court of Appeal fuller submissions were made on the preliminary objection. That court was also invited to hold that, it’s previous decisions in (1) Oduduru v. National Union of Hotel and Personnel Services Workers Appeal No: FCA/L/226/83 delivered on 30/3/85 (unreported) (2) Nigerian Civil Service Union v. Essien (1985) 3 NWLR (Pt. 12) 306; (3) Agbonikhena v. Egbe (1987) 2 NWLR (Pt.57) 494 to the effect that Trade Union members had locus standi where their constitution gives them similar right as under Section 7(v) of the Constitution aforementioned, were given per incuriam, and are therefore not binding on that court. The court below rejected that invitation, holding that its decisions were binding on it. In addition to upholding the locus standi of the plaintiffs having regard to the provision of its constitution (Rule 7(v) refers), Section 16(1) of the Trade Union Act was held to give the plaintiffs the right to come to court in this case where the wrongful dissipation of union funds is involved. In both instances the rule in Foss v. Harbottle did not apply.

In this court, as stated earlier, three issues for determination were agreed by the parties. The first asks

“(1) Whether the provision of Rule 7(v) of the Constitution of the 18th defendant renders the Rule in Foss v. Harbottle inapplicable to that Union.”

The Rule in Foss v. Harbottle provides that where a wrong is done to a company or where there is an irregularity in the management of its internal affairs, which is capable of confirmation by a simple majority of its members, the court will not interfere at the suit of a minority of its members. In MacDougall v. Gardiner (1875) 1 CR. 13(25), Mellish L J. further explained it as follows:-

“If the thing complained of is a thing which, in substance, the majority of the company are entitled to do, or if something has been done irregularly that the company are entitled to do regularly, or if something has been done illegally which a majority of the company are entitled to do legally, there can be no use in having litigation about it. The ultimate and, no doubt, is, that a meeting has to be called, and then ultimately, the majority gets its wishes”

In Burland v. Earle (1902) A,C. 83(93), Lord Davey said:-

“It is an elementary principle of the law relating to joint stock companies that the court will not interfere with the internal management of companies acting within their powers, and in fact has no jurisdiction to do so, Again, it is clear law that in order to redress a wrong done to the company or to recover money or damages alleged to be due to the company the action should prima facie be brought by the company itself.”

As stated in defendants’ brief this rule has two limbs (1) that in respect of any wrong against the union only the union can sue in its own name (2) that the court will not interfere in any transaction where it is within the power of the majority of shareholders to ratify or undo such transaction. Although originally applied to companies, this rule was subsequently held applicable to Trade Unions. The Supreme Court so held in Abubakri & Ors. v. Smith & Ors. (1973) 8 NSCC 451. This rule is however subject to exceptions, in which instances, individual members can take action against their company or Union. These are (1) to restrain the company from doing an illegal or ultra vires act (2) to prevent a fraud on a minority e.g. to recover the company’s property from persons who have taken it for themselves; and who can by using their controlling interest in the company/union prevent it from taking any such action vide Burland v. Earle (supra) (3) To restrain the company , which has power to do an act sanctioned by a special resolution, from doing same by an improperly passed resolution vide Cotter v. National Seamen (1929) 2 Ch. 58(69). (4) To protect the invasion of their individual rights as members vide Edwards v. Halliwell (1950) 3 A.E.R. 1064. Under this exception, an individual shareholder can sue in his own name. That this is a well-established common law rule is beyond any dispute.

Rule 7(v) of the Constitution of the 18th defendant provides that:-

“Any member shall have the right to initiate action at his own expense in connection with any breach of the Constitution”

The submission of defendants’ counsel is that this provision of the Constitution of the Union-cannot overrule the common law rule in Foss v. Harbottle. That Constitution, it is further argued, is only a contract between the members of the Union inter se and cannot overrule the common law vide Re Hookers Settlement (1955) CR. 55, where Dankwerts J. declared (at page 58) that:

“An ordinary person has not the power, as the legislature has, of course. to impose upon a Judge of the Chancery Division a jurisdiction which is not given him by the procedure of the courts or by any statute.”

Similarly, parties cannot by consent, he urged, amend the Constitution of Nigeria or overrule the common law. That can only be done by specific legislation. The contention of Aka-Bashorun, Counsel for defendants that the registration of the Union’s Constitution under the provisions of the Trade Union Act of 1973 gave it force of law, and that membership of the union thereby became a constitutional right under Section 37 of the Constitution, was rejected by the Court of Appeal, which held that no such rights were conferred on Union members and that the Trade Union cannot by an act intended to bring sanity into its proceedings acquire any higher status than other similar organisations/associations. Counsel to present defendants/appellants adopted the arguments and conclusions of the Court of Appeal. In their brief the defendants repeated the submission rejected by the court below that its decisions commencing with Oduduru’s case and ending (as at then) at Agbollikhena’s case were given per incuriam. In so far as they laid down the rule that any provision, such as Section 7(v) now under consideration, has the effect of enabling any member of the Union to initiate action at his own expense in connection with any breach of the Constitution, they should, he further submitted, be overruled. He repeated that the Constitution of a union, as is the case with any other binding unincorporated association, has the effect of a contract binding among the members of the union or association vide Faramus Film Artistes’ Association (1963) 2 K.B. 527 (549); Bonsor v. Musician’s Union (1956) A.C. at pages 135/6. The error inherent in the decision in Oduduru and other cases, he submitted finally, becomes apparent when the full effect of its introduction of an agreement between the parties is spelt out; and it reads thus:-

“Any member shall have the right to initiate action at his own expense in connection with any breach of the Constitution and for this purpose, the members of the union shall not be subject to the Rule in Foss v. Harbottle”.

This in his view shows that the Constitution of the Union has clearly usurped or purported to usurp the function of the legislature.

On the specific question raised by this court as to the position of this court’s decision in Abubakri v. Smith (supra), in the light of Section 6 Sub-section (6)(b) of the Constitution of the Federal Republic of Nigeria, defendants’ counsel, as stated earlier, filed a supplementary brief. In it he invited this court to hold that the proposition of law affirmed in Abubakri v. Smith (1973) NSCC 451 remains valid and sound notwithstanding the provisions of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979, mainly, because:-

“(1) The aforementioned provisions of the 1979 Constitution are designed to ensure that, without prejudice to the inherent powers of the superior courts of law established by the said Constitution, those courts are limited to the hearing and determination of disputes and controversies affecting the civil rights and obligations of the party seeking redress in the courts.

(2) One of the principles embodied in the decision of the Supreme Court Abubakri v. Smith is that only an association or a majority of its members can seek redress for a wrong done to the association and an action at the suit of individual members for redress in respect of such a wrong will not be entertained.

(3) The second principle embodied in the decision of the Supreme Court in Abubakri v. Smith is that the court will not interfere at the instance of an individual member or group of members of an association to interfere with a matter which might or can be made binding on the association by the decision of a majority of its members. This principle is in line with the inherent powers of superior courts of law which are expressly preserved by the 1979 Constitution.”

In their brief the plaintiffs have submitted that they have a locus standi to pursue their claims in court, which derives from the provisions of Rule 7(v) of the Constitution of the Union, and also Section 16 of the Trade Unions Act of 1973.

In Foss v. Harbottle or other cases based or relying on it, where the plaintiffs were debarred from seeking relief in the courts, no equivalent provision was considered. The plaintiffs therefore submitted that the rule in Foss v. Harbottle regulates only the jurisdiction of the court in cases of associations which have not entered into such a contract. Secondly, the acts complained of come within what are termed exceptions to the rule but are really interpretations thereof. These confine the operation of the rule to (a) intra vires actions (b) acts which can be ratified by a simple majority of the association, as against actions which need more than a simple majority or extra provisions to become binding on members. This is so because the acts complained of are breaches of the constitution. The defendants (1st to 11th) are attempting to extend their terms of office which had expired, contrary to the specific provisions of the; Constitution. Since they no longer hold office it is also sought to prevent them from handling the assets of the union in breach of its provisions vide Mbene v. Ofili (1968) 1 ALR (Comm) 235, where the Executive Council of a union had appointed persons as officials of the union irregularly when it had no power to do so, and it was held that the appointments where an ultra vires act of the council thereby bringing the complaint within the exceptions to the rule in Foss v. Harbottle. The question whether the acts are ultra vires is one for the High Court, which once a strong prima facie case is shown of a breach of the constitution, cannot exclude the plaintiffs by application of the rule in Foss v. Harbottle without making a determination that the acts complained of are intra vires, the very question which they are asked to determine in the substantive action. Furthermore the only way ultra vires acts can be regularised by the union is by a constitutional amendment. These can only be carried out by a majority vote in a secret ballot, which is not a simple majority ballot, per Rule 7(ii) of the Union’s constitution. More than a simple majority is also required because of Rule 34(ii) which provides that any alteration or amendment “shall not be valid until they have been registered with the Registrar of Trade Unions” The amendment is therefore not within the power of the association alone to pass before it can become effective. On the defendants’ comments that the grant of locus standi by application of Rule 7(v) “alters or abolishes” the rule in Foss v. Harbottle” regulation of the court’s jurisdiction”, the plaintiffs stated as follows:-

“Once it is recognised that the rule in Foss v. Harbottle gives the court jurisdiction to entertain the complaint of a member against an ultra vires act which cannot be ratified by a simple majority of that association, it follows that the agreement or contract set out in Rule 7(v) of the Union’s Constitution does not confer any new jurisdiction on a court which would otherwise have had none.”

These comments are therefore irrelevant. Since the rule in Foss v. Harbottle excludes the jurisdiction of the courts in respect of specific agreements in specific circumstances, the correct formulation of the effect of Rule 7(v) should be that:

“Any member shall have the right to initiate action at his own expense in connection with any breach of the constitution in accordance with (the exceptions to) the rule in Foss v. Harbottle”

In their supplementary brief on the question raised by this court for further address i.e. as to the effect of Section 6(6)(b) of the 1979 Constitution on this court’s decision in Abubakri v. Smith (supra), the plaintiffs made the following submission in conclusion:-

“(a) In so far as the decision of the Supreme Court in Abubakri v. Smith confirmed the right of a member of an association to sue to protect his personal rights it remains good law in accordance with the subsequent enactment of 6(6)(b) of the 1979 Constitution.

(b) In so far as Abubakri v. Smith and the rule in Foss v. Harbottle appear to confer standing on persons to complain about wrongs done to associations of which they are members notwithstanding that no personal rights or obligations are in issue, it would conflict with 6(6)(b) of the 1979 Constitution and to that extent would not be good law.

(c) Abubakri v. Smith however does not give consideration to the contractual rights and obligations of members of an association, and breach of the rules or constitution of an association such as a trade union may constitute a breach of the rights of its members, who would therefore have standing under 6(6)(b) of the 1979 Constitution to complain of such breach.

(d) Despite such standing under 6(6)(b) of the 1979 Constitution, the courts may still decline to exercise jurisdiction (and thereby deny standing) to a person seeking an order which would be futile or unenforceable for the reasons given in Abubakri v. Smith.”

It is agreed by all that Rule 7(v) of the Constitution of the 18th defendant confers a right on its individual membership. That right, as clearly spelt out therein, is a right to initiate action, whenever any breach of the Constitution arises, and at the expense of the individual concerned. The condition that the union’s funds should not be affected is obviously intended to guard against frivolous actions. The defendants are against a free exercise of this right because it will, they contend, overrule the common law rule in Foss v. Harbottle. This rule is not a creation of statute, and it is correct as submitted by plaintiffs’ counsel that the special right given to members of a Trade Union in this case, (Rule 7(v) refers), and the earlier ones dealt with by the Court of Appeal i.e. Oduduru (supra) and others (supra), was not contemplated or considered in Foss v. Harbottle. If it was, the decision may well be quite different. I do not see the relationship between the rule in Foss v. Harbottle and the right provided by Rule 7(v) as one of conflict; or the rule being overruled by the right. I think they are complementary one to the other. This must be so because the right to be exercised under Rule 7(v) only arises in case of a breach of the Constitution, and where also the individual is prepared to foot the bill of the litigation. In other cases, the rule in Foss v. Harbottle will apply unheeded. It is therefore per se really an exception to the general rule in Foss v. Harbottle. This brings me to the second submission of plaintiff’s counsel, which is, that the provision of Rule 7(v) is really one of the exceptions that have come to be accepted to the aforesaid rule. Firstly, it comes under the first exception noted earlier in this judgment, that is, actions by individual members to restrain the company from doing an illegal or ultra vires act. The acts complained against, and which form the basis of the originating summons taken out are strong prima facie breaches of the constitution. If the facts alleged are right, and there are no legal justifications for them, they do constitute ultra vires acts. In order to determine whether the acts alleged are inter vires the court has to hear the parties. Locus standi therefore has to be granted the plaintiffs. It is also the submission of the plaintiffs that a second exception to the rule in Foss v. Harbottle covers the acts complained of. These are acts which cannot be ratified by a simple majority only of the union. This comes under the second limb of the rule as set out in defendants’ brief. I am not so sure that the plaintiffs are on very firm ground here. The contention is that since the amendment to the union’s constitution requires the vote of a majority voting by secret ballot and that such amendment further requires registration with the Registrar of Trade Unions to be valid, it is not an act that a simple majority simpliciter can perform. I think this argument is straining the point. Firstly, it means that all amendments to the constitution are exceptions to the rule in Foss v. Harbottle. Secondly, that even if they are passed by a majority they come under the exception simply because the voting is by secret ballot. Thirdly, that even if the majority passes it by secret ballot it still is not covered by the rule because, and only because, it can only become valid and binding on the membership after it has been registered by a non-Union member – the Registrar of Trade Unions. I am quite sure that is not what the second limb of the rule in Foss v. Harbottle contemplates. The type of voting and the need for prior registration cannot make the decision of a majority that of a minority. I am therefore unable to accept plaintiffs’ second submission. The plaintiffs’ formulation, of the correct position once it is accepted that an individual member of the union can exercise the right given to him under Rule 7(v) is however more correct, as against the defendants’.

The third submission of the plaintiffs which I now proceed to consider is that the breach of the provisions of the constitution of the Union raises questions as to the civil rights and obligations of parties to the contract. It is trite that a contract confers rights and obligations on parties to it. What are in issue here are whether the rights in question are those directly connected with the plaintiffs e.g. the right to vote in Union elections or the wider rights under Rule 7(v) which guarantees to members the right to have the affairs of the Union managed in accordance with its constitution. It also gives them the right of being watch dogs or “busy bodies” to prosecute those who breach the constitution. What they are empowered to defend here are rights arising from the contractual relationship between the union and its members, and between the members inter se. Chitty on Contracts (26th edition) paragraphs 688 (page 448) confirms this position thus:-

“The relationship between a member of a trade union and the union itself is contractual, and the terms of the contract are to be found in the rules of the union. A member of a trade union has in general the right to take proceedings to enforce compliance with the union’s own rules in relation to matters such as election of officers and other internal regulations.”

Section 6(6)(b) of the 1979 Constitution provides that:-

“The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions or proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. (Italics mine)

Once the civil rights and obligations of the plaintiffs as individuals are affected, as I hold they are here the courts in exercise of their judicial power set out above can look into such rights and obligations, and for that purpose the plaintiffs have a locus standi before them. Such right guaranteed under the Constitution cannot be in any way detrimentally affected by the common law rule in Foss v. Harbottle.

The question raised as to the effect that Section 6(6)(b) of the 1979 Constitution may have on the decision in Abubakri v. Smith (supra) can be considered here. Both sides appear to agree that that decision has not been wholly affected by the operation of Section 6(6)(b). It’s finding that the rule in Foss v. Harbottle is binding on Trade Unions is still good law. So also are its enunciation of that rule and its applicability to the facts before it in that case. It is only where the right and obligations of an individual are in issue, and such a case does not fit into the exceptions under the rule in Foss v. Harbottle, that there may be a conflict since locus standi is available to the individual in a determination of his rights and obligations, whether or not these concern a Trade Union and it is in respect of matters to which the rule in Foss v. Harbottle is normally applicable. The facts in Abubakri v. Smith (supra) per se do not however fit such a case.

The second issue asks whether in the light of the provisions of Section 16 of the Trade Union Act, 1973, it is permissible for ten individuals who allege that they are members of the Union to sue for the reliefs claimed by the plaintiffs in this action. Section 16(1) of the Trade Union Act provides as follows:-

“Without prejudice to the right of any person having a sufficient interest in the relief sought to apply for an injunction to restrain any unauthorised or unlawful application of the funds of a trade union, a injunction restraining any such application of the funds of a trade union may be granted by the appropriate High Court upon the application of the Attorney-General of the Federation or of the Registrar, or of any five or more members of the Union.” (note: Italics mine)

The simple and straightforward answer to the question posed in yes. Having conceded that, defendants proceeded in their brief to argue what is not part of the issue raised in an effort to show that the decisions in the Oduduru line of cases are wrong. I consider these arguments in the circumstances irrelevant, and do not intend to consider them here. It is enough to reiterate that whilst Section 16(1) of the Trade Union Act (supra) allows five members of the Union to sue in the circumstances set out, ten members instituted the present action. The plaintiffs therefore have the necessary locus standi and their action could not have been struck out.

The third issue seeks to disqualify Segun J. from further adjudicating in this matter because of the finding he made that the defendants (appellants) “blatantly” violated the constitution of the Union, which finding really belongs to a final decision on the substantive claim. This it is submitted the trial Judge had no right to do vide Egbev. Onogun (1972) 1 ANLR (Pt.1)95 (98′ 99); Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt.26) 39 (45). In the later case Nnaemeka-Agu, J.C.A. (as he was then) had observed on the matter thus:-

“I cannot over-emphasize the need for trial Judges in interlocutory rulings desisting from making any findings which may prejudice the substantive case. It is true that if the above findings were rightly made and allowed to stand, they have completely knocked the bottom out of the substantive suit. In the circumstances and in fairness to the learned trial Judge, it is only right that the case be remitted for trial before another Judge.”

Plaintiffs have submitted that the comments of the learned trial Judge against which the plaintiffs have complained are merely a re-cap of the claims placed by the plaintiffs before the court, and that they do not in any way amount to a determination of the substantive issue. The plaintiffs had not contested the facts by filing a counter-affidavit, unlike the cases cited when the applications were for an interlocutory injunction and affidavits were filed contesting the facts.

Whilst I do not think the learned trial Judge meant to decide the most crucial issue in the substantive case, when dealing with the application for him, the language he used in making that finding went far beyond what was required in disposing of a preliminary objection. If he came to the conclusion that there was a blatant breach of the constitution at this stage of the proceedings, it must be difficult for him not to come to a final conclusion that there was a breach. In the interest of justice therefore hearing of the substantive action should proceed before another Judge (not Segun, J.) and I so order.

In conclusion, the judgment of the court below is hereby affirmed, except as to the order that the trial should resume before Segun J. That order is set aside, and replaced with an order that hearing should commence de novo before another Judge of the High Court.

The 1st to 11th defendants have persisted in exhausting all the appeal procedures, even though they lost in both the High Court and the court below. They will now pay costs, which I assess at N1,000.00 to the plaintiffs ..

UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Uche Omo, J.S.C. I agree with the judgment: The plaintiffs have the locus standi to bring the action. Accordingly, I too will dismiss the appeal and affirm the decision of the lower court. I agree that the case should be heard by a Judge other than Segun, J.

The plaintiffs are entitled to N1,000.00 costs against the defendants.

KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Omo, J.S.C. in this appeal. I agree with him entirely in the reasoning and conclusion dismissing the appeal. I wish only to make a modest contribution to the question of the effect of Section 6(6)(b) of the Constitution 1979 if any, on the decision of this court in Abubakri & Ors. V. Smith & Ors. (1973) 8 NSCC 451.

This court has suo motu formulated the following question for consideration of counsel in this case. Counsel submitted written briefs:-

“What is the position of our decision in Abubakri & Ors. v. Smith & Ors. (1973) 8 NSCC 451 in the light of the provisions of section 6 subsection (6)(b) of the Constitution of the Federal Republic of Nigeria, 1979.”

The question arose after addresses of counsel.

My learned brother Omo, J.S.C. has set out the facts of this case in considerable detail. I need not repeat them. I adopt them. I am however concerned in this judgment with the facts in this appeal which endorse the application of the common law principle that an individual may in certain circumstances be allowed to bring an action to protect the property of a company or an association to which he belongs.

In the instant case, the 18th defendant union is the defendant. Plaintiffs have brought this action to direct the 12th defendant who is the Acting General Secretary of the Union to comply with the provisions of the Constitution, and to stop further violation of its provisions. There is also a claim to restrain the 1st-11th defendants from performing the functions of the office to which there is an existing appointee and operating the Bank Account of the 18th defendant union. The defendants have raised preliminary objection which was overruled by the trial Judge. The appeal to the Court of Appeal was dismissed. They have further appealed to this court. The preliminary objection was that plaintiffs have no locus standi to bring this action.

The common law principle which has been long senttled in Foss v. Harbottle (1843) 2 Hare 461, states that where a wrong is done to a company or where there is an irregularity in its internal management, which is capable of being rectified by a simple majority of the members, the court will not interfere at the suit of a minority of the members to rectify the wrong or regularise the irregularity. This principle is founded on the rationale that since the rectification of the wrong or irregularity is intra vires the company or association which can ratify the act complained of by the majority who have the powers to do so, it is an idle exercise for the court to interfere. The ultimate authority being the decision of the majority, it can always get its wishes done. Hence in such actions concerning wrongs to the company, the company, and not any other person is the proper plaintiff – See MacDougall v. Gardiner (1875) 1 Ch. 13 and Burland v. Earle (1902) A.C. 83.

These principles have been formulated into two rules which govern the initiation of actions in respect of wrongs done to incorporated companies or other associations. These are that:-

Actions in respect of wrongs done to companies must be brought by the company and in its own name.
The court will not interfere in respect of such actions if the wrong done or irregularity complained of is within the vires of the majority to rectify.

This is the rule of the supremacy of the majority. However, there have been exceptions to the application of these rules where:-

(a) There are individual membership and qualified minority rights – Edwards v. Halliwell (supra).

(b) The action brought is to restrain the company from doing illegal acts or acts ultra vires – Burland v. Earle (1902) AC. 83

(c) The action is designed to prevent a fraud on the minority – See Alexander v. Automatic Telephone Co. (1900) 2 Ch. 56; Edwards v. Halliwell (1950) 2 All ER 1064; Pavlides v. Jensen (1956) Ch. 565.

Abubakri & Ors. v. Smith & Ors (supra) the Supreme Court approved and applied the above enunciated principles. The facts of the case were that plaintiffs and defendants are members of the Jamat-ul-Muslim of Lagos. The 1st plaintiff was the Secretary. The 2nd plaintiff was the Treasurer. Both of them were so elected under the Constitution of the religious community. Following dispute among the members, the defendants purporting to have abrogated the constitution, went on to elect members of the Jamat under a new constitution and set of rules and regulations established by them. They retained in their possession all the records, books, monies and other properties of the Jamat. They appointed members of an executive who usurped the offices and functions of the duly elected executive under the original constitution. They also collected funds on behalf of the Jamat and have failed to give an account. The plaintiffs thereupon brought an action in their own names seeking:

(i) an order restraining the defendants from holding out themselves as members or officers of the Jamat-ul-Muslim of Lagos.

(ii) a true account of the moneys and other collections made by the defendants and payment over to the plaintiffs or duly elected Treasurer of the religious body; and

(iii) surrender of all documents, including files, letters, books and paraphernalia of office, and other properties of the body held by the defendants as such officers.

The Defendants without filing a statement of defence applied for the dismissal of the suit on the two alternative grounds (a) that plaintiffs could not obtain judgment against them either jointly or severally (b) that the statement of claim disclosed no cause or action and is vexatious, frivolous and an abuse of the process of the court.

The learned trial Judge dismissed the claim because the plaintiffs had no locus standi to bring the suit. Relying on Edwards v. Halliwell (supra), he held that the association was not joined as plaintiff or defendant in a suit to which the main claimant is the religious community and no private or individual interest was involved. In respect of the claim for an account, the funds and other properties in issue are those of the Jamat. Only the Jamat was rejecting the third claim. The learned trial trial Judge held that the rule in Foss v. Harbottle was applicable to this case. The Supreme Court dismissed the appeal against the judgment of the learned Judge. The cases of McDougall v. Gardiner (1875) Ch.D 13; Cotter v. National Union of Seamen (1929) 2 Ch. 58 were cited and relied upon.

Consideration of the decision in Abubakri v. Smith & Ors (supra) in the light of Section 6(6)(b) of the Constitution 1979 was raised suo motu by this court. Counsel were afforded opportunity to argue the point. They submitted very helpful written briefs urging their own views on the issue.

It is pertinent at this point to turn to Section 6(6)(b) of the Constitution 1979 which provides as follows:-

“(6) The judicial powers vested in accordance with the foregoing provisions of this section –

x x x x

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

The decision in Abubakri & Ors. v. Smith & Ors (supra) has become relevant because of the opinion expressed by the Supreme Court. It was there said, referring to the Rule in Foss v. Harbottle (supra).

“that the Rule would not apply to individual members who can establish that their personal rights, as distinct from those of the union (or the Jamat in the present case) have been invaded.” Heyting v. Dupont & Anor (1963) 3 All E.R. 97 was cited and relied upon.

In my opinion the suggestion in this dictum is that the rule in Foss v. Harbottle (supra) will not apply to exclude a person who can establish a personal right as distinct from that of the association. In this sense it is ad idem with section 6(6)(b) of the Constitution I979 where there is locus standi if the determination of the civil rights and obligations of the plaintiff is involved.

Chief Williams, S.A.N. in his brief has brought out clearly the scope of Section 6(6)(b) of the Constitution 1979. It concerns (i) the subject matter of the exercise of judicial powers, (ii) the subjects of the exercise of the power, and (iii) those who can invoke the exercise of judicial powers. I agree with this analysis. This court has pointed out in Senator Adesanya v. The President of the Republic of Nigeria (1981) 2 NCLR 358; (1981) 5 S.C. 112 that the competence to invoke the exercise of the judicial powers of the Constitution is limited to the determination of any question as to the civil rights and obligations of the person invoking the exercise of the power – See also Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669; Oloriode v. Oyebi (1984) I SCNLR 390.

In Abubakri v. Smith & Ors (supra) the Supreme Court rejected the contention of plaintiffs/appellants that their personal or contractual rights have been infringed, as having not been borne out by the pleadings. Not that, if properly pleaded, such rights could not have been involved. There was no evidence of a breach of contract, or that their personal rights have been violated. The offices which were filled are not personal. The books, files and other articles of property seized by the respondents are those of the Jamat which is neither a party to the action, nor was the action on its behalf. This is not a rejection of the principle and a suggestion that a determination of the civil rights and obligations of the plaintiff must be involved. It seems to me clear from the above discussion that Abubakri v. Smith & Ors. (supra), has followed the well settled common law principles governing actions instituted in respect of wrongs done to an incorporated body or other associations.

The question to be answered is whether Section 6(6)(b) which came into force on the 15th October, 1979 after Abubakri v. Smith & Ors. was decided has had any effect on the decision. Is there any conflict I have not been able to discover any real conflict between Section 6(6)(b) and the rule in Foss v. Harbottle. In each case it is the civil rights and obligations of the person that is the subject matter for determination.

I have already reproduced the provisions of Section 6(6)(b) of the Constitution 1979. In my analysis of the section and the decisions on it, it is clear that any person who is able to show that his civil rights and obligations are involved is entitled to invoke the judicial powers of the constitution. Similarly in Foss v. Harbottle the subject matter for determination is the wrong done to the company or association.

The Supreme Court said much the same thing in Abubakri v. Smith & Ors. (supra) when it stated that the pleadings did not disclose that the personal or contractual rights of the plaintiffs were infringed. That the Jamat was not a party to the action.

But surely this is not the basis for the application of the rule in Foss v. Harbottle (supra). Under the rule the company or the association is the real plaintiff. The action is to remedy a wrong done to the company. Hence the civil rights and obligations of the person bringing the action is not relevant to his competence to bring the action, which in any event is in the name of the company. Thus the wrong or the irregularity complained of is against the company or association but the relief is against the majority of the members. This is why where the injury or wrong complained of can be cured by the resolution of a simple majority of its members, the court has always declined to interfere. This is because the court does not want to embark upon a futile exercise of its coercive powers.

Where however, the wrong complained of cannot be sanctioned by an ordinary resolution of the members, or is ultra vires the company or association, an action can be brought in the name of the company against the wrongdoers to protect the interest of the company.

This is where what constitutes the civil rights and obligations in a member of an association or company which has rules and regulations and a constitution becomes relevant. Rule 7(v) of the Constitution of the Union provides as follows:-

“Any member shall have the right or initiate action at his own expense in connection with any breach of the Constitution.”

It was argued that this rule confers a right on members and empowers them to prosecute breaches of the Constitution of the union and vests in every member that power. Thus, there is a contractual right to protect the constitution of the union. I think that the contention is right. The rule alone can confer a right of action even where the individual or personal right of the person bringing the action is involved in the determination. It is not in conflict where the exercise of the right is to protect a breach of the constitution in the name of the company. Rule 7(v) of the Constitution of the Union to it vests in members independent right of action even where arising from wrongs to the Union is constitutional and not in conflict with Section 6(6)(b) of the Constitution 1979. It is within the provision and spirit of Section 6(6)(b).

It is pertinent to compare this with the Senator Adesanya case, which was concerned with the non-compliance with a provision of the Constitution 1979, or Thomas v. Olufosoye which was the constitution of the Anglican Church. In each case it was held that the civil rights and obligations of the plaintiff were not involved. No similar power as in Rule 7(v) was conferred on citizens in Adesanya case, or members of the congregation in Thomas v. Olufosoye.

On the other hand, the constitution of Jamat-ul-Islam, or that of a Trade Union, as in this case constitute a binding contract amongst the members who subscribed to it. It is important to point out that in neither the Adesanya case, or Thomas v. Olufosoye did the plaintiff sue as a member of an association. The action was brought by individuals to enforce their purported right.

In the instant case, plaintiffs are members of a Trade Union, the 18th defendant Union, and are parties to the contract inter se i.e the defendants and other members of the Union.

Rule 7(v) quoted above guarantees members the right to manage the affairs of the union in accordance with its constitution and to protect the breach of the constitution.

Thus wherever there is breach of the provisions of the 18th defendant’s Union, it raises the question of the civil rights and obligations of its members who are parties to the contract. The breach ipso fact confers on them the same right which section 6(6)(b) vest in individuals and can be invoked in appropriate circumstances. Hence the only considerations of the court in the recognition of this right and the exercise of this jurisdiction is whether plaintiff has brought this case within the exceptions to the rule in Foss v. Harbottle. Thus where the complaint of the plaintiff is with respect to an intra vires act casus cadit. This is because the wrong against the company complained of can be sanctioned by the decision of a simple majority of its members.

In the instant case, the fact absent in Abubakri v. Smith & Ors (supra) are all present. The acts complained of are shown to be ultra vires the constitution of the 18th Defendant’s Union. The action itself was brought in the name of the Union. The Union is a party to the case and the plaintiffs have disclosed the wrongs done. It was also proved that the wrongs complained of cannot be sanctioned by the resolution of a simple majority of its members, but will require amendment of the constitution of the Union.

It is clear therefore from the provisions of Section 6(6)(b) of the Constitution 1979, and analysis of the Rule in Foss v. Harbottle as applied in our courts, that the decision in Abubakri v. Smith & Ors (supra) decided before the enactment of the 1979 Constitution has not made any alteration in the right of action for wrongs done against a company or association at common law. Accordingly, the following conclusions must be drawn from a comparison of the situation before and after the promulgation of the Constitution 1979.

An action can be brought to correct wrongs done to a company only where the wrong done to the company cannot be corrected by a simple majority of the company. The Court will not interfere in such cases.
An action can be brought to correct ultra vires acts done to the company by the majority of its members.
Abubakri v. Smith & Ors (supra) conferred rights on members of the association who complain about wrongs done to the association, if the action is brought in the name of and on behalf of the association.
Abubakri v. Smith & Ors (supra) was not concerned with the contractual rights and obligations of members of an association and breach of its rules which may constitute a breach of the rights of its members. It therefore did not decide the issue, such as could have come under the preview of Section 6(6)(b) of the Constitution 1979.

There is therefore no conflict between Abubakri v. Smith & Ors and Section 6(6)(b) of the Constitution 1979.

I agree with the opinion of my learned brother Omo, J.S.C. in his judgment when he said:-

“The acts complained against, and which form the basis of the originating summons taken out are strong prima facie breaches of the Constitution. If the facts alleged are right, and there are no legal justifications for them, they do constitute ultra vires acts.”

In the circumstances of this case and the facts before the court, in the pleadings the preliminary objection of the defendant appears to me premature. It was properly overruled. For the reasons given in the leading judgment of Omo, J.S.C. which I adopt, and for the reasons stated above, the Court of Appeal was right to have dismissed the appeal. I also will and hereby dismiss the appeal. However, I also direct that the case be heard before another Judge of the High Court of Lagos State.

Costs in the sum of N1,000.00, shall be paid by the 1st, 3rd-10th and 18th Defendants to the plaintiffs.

OLATAWURA, J.S.C.: The facts, the issues for determination and the grounds of appeal are already set down in the lead judgment of my learned brother, Uche Omo, J.S.C. I agree with his reasoning and conclusions. I only wish to comment on the issue raised by the Court after we had adjourned for judgment on 8th February, 1993. The issue is:

“What is the position of our decision in Abubakri & Ors. v. Smith & Ors. (1973) NSCC 451 in the light of the provisions of Section 6 sub-section 6(b) of the Constitution of the Federal Republic of Nigeria 1979″

In Abubakri v. Smith & Ors (supra) this court on page 451 of the report said:”

“We, therefore, hold that the Rule in Foss v. Harbottle applies to an unincorporated association possessing a constitution or a set of rules and regulations entitling it to sue and be sued as a legal entity, and that the Jamat-ul-Muslim of Lagos is such a body. It follows that the Rule in Foss v. Harbottle applies to this religious body in the same way and to the same extent as it does to a limited liability company or a trade union.” (my emphasis).

This decision was given on 27th June, 1973 i.e. more than 6 years before the 1979 Constitution of the Federal Republic of Nigeria. In other words, will the position still be the same notwithstanding S.6 (6)(b) of the 1979 Constitution of the Federal Republic of Nigeria This sub-section provides:-

“The judicial powers vested in accordance with the foregoing provisions of this section

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

In so far as the analysis of the judicial powers exercisable under S.6 (6)(b) of the 1979 Constitution are concerned, I am in full agreement with the defendants’ analysis by Chief Williams, S.A.N. in the supplementary brief. I will also limit the interpretation to the third category i.e.

“the persons who are competent to invoke the exercise of these powers.”

This will inevitably bring us to those persons who have locus standi. In this appeal the issue now is: whether the plaintiffs are competent to invoke the exercise of the powers for the determination of their rights and obligations. It should be borne in mind that as at the time Abubakri v. Smith (supra) was decided the unlimited jurisdiction of the High Court as laid down in section 236(1) of the 1979 Constitution and amplified in S.6 (6)(b) of the same 1979 Constitution was not in force. The Constitution in force was the 1963 Constitution without similar provision.

Although the case of Abubakri v. Smith (supra) covers the case of a unincorporated association with a constitution, the court was mindful of those whose personal rights as distinct from that of the union have been invaded. The Supreme Court on page 457 said:-

“It is necessary to add the Rule (i.e. Foss v. Harbattle) would not apply to individual members who can establish that their personal rights as distinct from those of the union (or the Jamat on the present case) have been invaded.”

If the interpretation of S.6(6)(b) of the 1979 Constitution is to the effect that no individual member of the association has the right to sue for an action which is ultra vires the constitution of the association then Abubakri v. Smith (supra) will no longer apply.

Two of the reliefs claimed by the plaintiffs and covered by the pleadings prima facie show the personal rights and obligations in respect of which jurisdiction of the court is based. These reliefs are (iv) and (v). They read as follows:-

“(iv) A declaration that the respective terms of office of each of the 1st-11th defendants ceased at the expiration of three years from the 28th of November 1985;

(v) Injunction to restrain each of the 1st-11th defendants from:

(a) performing the functions of his office;

(b) parading himself as an officer of the Union; and

(c) operating any Bank Accounts of the Union or disposing, receiving, negotiating or dealing with any assets of the Union.”

The 18th Defendant’s Constitution in so far as the competence of a member to institute an action is governed by Rule 7(v) of the Constitution of the National Union of Banks, Insurance and Financial Institutions Employees (NUBIFIE). It states:-

“Any member shall have the right to initiate action at his own expense in connection with any BREACH of the Constitution.”

(Capitals supplied for emphasis)

And when on takes the exceptions in Foss v. Harbottle into account, and in this case the exception is an infringement of a constitutional right of a member, which in this case is ultra vires the association or in this case the Trade Union, the rule in Foss v. Harbottle cannot be invoked. The majority cannot pass ordinary resolution to cure the illegality if proved. The Court’s duty will be to intervene at the instance of the minority. It appears to me that S.6(6)(b) of the 1979 Constitution empowers individual to sue once he can establish that his personal rights have been breached. I agree with my learned brother Uche Omo, J.S.C. in the lead judgment when he said:-

We should bear in mind that the Supreme Court has observed that the contention of the appellants in Abubakri’s case that their personal or contractual rights had been infringed were not borne out by their pleadings. That is not the position here.

The objection raised by the defendants appears to me premature in view of the pleadings by the plaintiffs and it was properly over-ruled.

I will also order that the case be heard by another Judge of the Lagos State

High Court.

In the final analysis and for the fuller reasons set out in the lead judgment, I will dismiss the appeal, but for the avoidance of doubt, I repeat that the case be heard before another Judge of the Lagos State High Court. I also award the sum of N1,000.00 as costs against the defendants (1st, 3rd – 10th and 18th) in favour of the plaintiffs.

KUTIGI, J.S.C.: I have had the advantage of reading in draft the judgment of my learned brother Omo, J.S.C. just delivered. I agree that the appeal should be dismissed and it is hereby dismissed. The judgment of the Court of Appeal is affirmed but the hearing should now commence de novo before another Judge of the High Court.

I endorse the order for costs contained in the lead judgment.

Other Citation: (1993) LCN/2519(SC)

Alex Oladele Elufioye & Ors Vs Ibrahim Halilu & Ors (1993) LLJR-SC

Alex Oladele Elufioye & Ors Vs Ibrahim Halilu & Ors (1993)

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