Nigerian Nurses Association & Anor. V. A-G Federation & Ors. (1981)
LawGlobal-Hub Lead Judgment Report
- NIGERIAN NURSES ASSOCIATION
2. S. S. OKEZIE – Appellant(s)
- ATTORNEY-GENERAL OF THE FEDERATION
2. FEDERAL COMMISSIONER FOR LABOUR
3. ADMINISTRATOR OF TRADE UNION AFFAIRS – Respondent(s)
N. ANIAGOLU, J.S.C.
The appellants, in this appeal which was brought against the judgment of the Federal Court of Appeal, were the plaintiffs in the two suits (KDH/131/77 and KDH/37/78) which they took out in the Kaduna High Court on 30th November 1977 and 6th January 1978 respectively.
The two suits were consolidated and heard by Kola Aroyewun, J., who entered judgment for the appellants on 12th October, 1978. I have underlined these dates as they are important and have to be borne in mind in appreciating the issue to which I shall soon draw attention and which calls for a determination in this appeal.The Federal Court of Appeal (Kazeem, Wali and Maidama, JJCA.,) who heard the appeal of the respondents against the said judgment of the Kaduna High Court, set aside the judgment and dismissed the appellants’ case.
An understanding of only a small portion of the facts adduced in evidence is here necessary for resolving the legal issue raised by this appeal – an issue which falls within the narrow compass of the legal effect on the status of the plaintiffs and the suits they instituted, by a legislation, obviously retrospective, the constitutional validity of which however, was not questioned by the parties in the appeal.
In December 1975 the then Federal Military Government of Nigeria, intent on bringing together, either by amalgamation or federation, many trade unions (which had mushroomed into a number unacceptable to Government, whose concept of proper trade union many of them did not conform with) on 15th August 1977 approved of 70 industrial unions, listed and published in the Extraordinary Federal Republic of Nigeria Official Gazette No.6 Vol. 65 of 8th February 1978 as Government Notice No. 92, tendered in the proceedings as Exhibit 8. It was clear from this Notice that in reducing the industrial unions to 70, the Government had decided to cancel the certificates of registration of most of the unions.
The said No. 92 of 8th February 1978 was headed:”Restructuring Of Trade Unions” and its first paragraph reads:”The Federal Military Government has approved, consequent upon the report of the Administrator of Trade Union Affairs and the recommendations of the Commissioner for Labour, the restructuring into 71 (sic) industrial unions of the existing registered trade unions of senior and junior staff, professional personnel, self-employed persons, independent contractors and employers which are over 800. Consequently a number of trade unions will have their certificates of registration cancelled. It is in the interest of self-employed persons, contractors and employers, etc. whose unions will be cancelled to re-group as Co-operative Unions to further the interest of their members as their various unions do not conform with the present concept of a trade union.”
No. 12 on the list had the name:
“NATIONAL ASSOCIATION OF NIGERIA NURSES AND MIDWIVES”
and the trade unions coming under this umbrella were therein stated to be:”All nurses and midwives, of all grades and by whatever name called, qualified to register and practise in Nigeria
Nigerian Nurses Association
Nigerian Association of Nurse Anaesthetists.”
Be it noted that the name of the first appellant was specifically mentioned as coming under this “National Association of Nigeria Nurses and Midwives”.
It is not necessary for the purpose of determining the issues in this appeal to go into any details, although it is desirable that a passing mention be made of them namely, that in the course of the restructuring of the unions, meetings of existing trade unions were held; guidelines for the inaugural conference and electoral rules were published in the Daily Times Newspapers, issues were raised and disputes gone into as to the proper person who should take part as the accredited members of the existing unions who should take part in the restructuring exercise; directives were issued by the Federal Commissioner for Labour which were questioned by the first appellant as to whether they were given intra vires or ultra vires the powers of the Commissioner; and that questions were raised as to the proper role of the administrator appointed by the Commissioner for Labour with the approval of the Federal Executive Council pursuant to the Trade Unions (Central Labour Organisations) (Special Provisions) Decree 1976, No. 44 of 1976.What is necessary is that on 15th August 1978 the Federal Military Government promulgated the Trade Unions (Amendment) Decree 1978 No. 22 of 1978 (hereinafter referred to as the Amending Decree), amended some portions of the Trade Unions Decree 1973, and made the Amending Decree have retrospective effect from 3rd August, 1977. By Section 1 (1) (b) (iii) of the Amending Decree, Section 5 of the 1973 Trade Unions Decree was amended by adding after its sub-section (6), a new sub-section (7) as follows:
“(7) Notwithstanding anything contained in this Decree to the contrary, the Registrar, shall on the coming into effect of this section, register without any conditions whatsoever, the trade unions specified in Schedule 3 to this Decree; and on such registration the said trade unions shall have all the powers and duties of a trade union registered under this Decree.”;
Schedule 3 of the Amending Decree has a “List of Registered and Recognised Trade Unions” and against No.11 of that List is the name: “National Association of Nigeria Nurses and Midwives”.The amending Decree by its Section 1 amended, inter alia, Section 3 of the 1973 Trade Unions Decree by refusing any other trade union being registered in a place where a recognised one exists. Its Section 3(2) states:
“(2) No combination of workers or employers shall be registered as a trade union save with the approval of the Commissioner on his being satisfied that it is expedient to register the union either by regrouping existing trade unions, registering a new trade union or otherwise howsoever; but no trade union shall be registered to represent workers or employers in a place where there already exists a trade union.”Again, by Section 2(1) of the Amending Decree the certificates of registration of all existing Trade Unions registered, or deemed to be registered, under the Trade Unions Decree 1973, were cancelled. Section 2(1) is clear and unambiguous in its provisions in the following words:
“2.-(1) Notwithstanding any provisions of Trade Unions Decree 1973 to the contrary, on the coming into force of this Decree, the certificates of registration of all existing trade unions registered or trade unions deemed to be registered under the provisions of that Decree are hereby cancelled and the provisions of that Decree in relation to appeals against cancellation shall not apply.”
The position in short, was that the plaintiffs were a registered Trade Union under the Trade Unions Decree 1973; that the plaintiffs properly took two actions in the High Court, Kaduna, on 30th November, 1977 and 6th January 1978 which actions were consolidated; that the actions were heard and judgment given on 12th October, 1978; that by a decree which was promulgated on 15th August, 1978, the certificate of registration of the plaintiffs was cancelled and the cancellation made to have retrospective effect from 3rd August ,1977, that is to say, to cover the dates 30th November, 1977 and 6th January, 1978 when the plaintiffs took the two actions. Unless therefore the Amending Decree of 1978 was held to be null and void by reason of constitutional invalidity, the judgment of the High Court given in favour of the plaintiffs on 12 October 1978, was a judgment given in favour of a non-existent person, a juris non persona. As it turned out, neither the Kaduna High Court, in its elaborate and otherwise well reasoned judgment based on the 1973 and 1976 Decrees, made any reference to the Amending Decree of 1978, nor did the parties draw the court’s attention to its existence. It was, indeed, an over-sight and therefore the judgment was given per incuriam. Again neither before the Federal Court of Appeal nor here before us, nor indeed in their Brief, did the appellants raise any issue as to the validity of the 1978 Amending Decree. The power of the Federal Government to promulgate the 1978 Decree was not challenged. The retrospective nature of the enactment was not called into question. That being so, I shall restrict myself to giving effect to the clear meaning of the Decree.
The appellants filed one original ground of appeal in which they complained that the Court of Appeal erred in law in holding that the Amending Decree of 1978 vitiated the rights of the appellants as such legal rights had already accrued to them before the enactment of the Decree and, although retrospective, it was not specific on such rights which had accrued. They filed additional grounds of appeal which they elaborated in their Brief. These grounds, which I have summarized, were:
(1)That the Court of Appeal erred in law in holding that the plaintiffs had ceased to exist as a trade union by virtue of the provisions of the Amending Decree of 1978 which had in effect cancelled their certificate of registration, because the Trade Union Decree No.31 of 1973 and the Trade Unions (Central Labour Organisations) (Special Provisions) Decree 1976 had charged the respondents with the responsibility to encourage and effect the formation, whether by amalgamation or federation of existing Trade Unions and not to cancel the registration of existing Unions.
(2)That the Court of Appeal erred in law in holding that the directives contained in both Exhibits 12, 24, 25 and 26 were intra vires the powers of the Commissioner for Labour having regard to Section 6 of the 1976 Decree.
(3)That the Court of Appeal erred in law in not holding that the respondents acted mala fides and in breach of the rules of natural justice and
(4)That the Court of Appeal erred in law in holding that:”There is no doubt that the Decree (No. 22 of 1978) was designed to give effect to, and validate all the steps taken by the Administrator appointed in Section 2 of the Decree No. 44 of 1976 for the restructuring into 70 Industrial Unions all the Trade Unions existing in Nigeria at that time”,because the steps taken by the Administrator under the Decree No. 44 of 1976 were ultra vires the powers of the respondents and in contravention in many particulars of subsisting Trade Union laws binding on the respondents.
Arguing the appeal before us Mr. Olunwa stated he was adopting his arguments in the Brief which he filed and stressed that he was dealing with the remedy open to a Trade Union under Decree No. 31 of 1973 when the Registrar of Trade Unions refuses to register an applicant Trade Union pursuant to a directive given by the Commissioner for Labour under Decree No. 44 of 1976. He also said they were concerned with the provisions of Section 76(8) of the 1973 Decree in relation to the power of the Commissioner for Labour to issue directives to the Commissioner in relation to Exhibits 24, 25 and 26 were ultra vires his powers under the law.When Mr. Olunwa’s attention was drawn to the real issue in this appeal, namely, whether the plaintiffs had ceased to exist by reason of the promulgation of the Amending Decree of 1978, Mr. Olunwa replied, inappropriately, that the plaintiffs were part and parcel of the “National Association of Nigeria Nurses and Midwives” whose name appears as No.11 in Schedule 3 of the 1978 Amending Decree.
Mr. Obiesie, a Legal Adviser, in the Federal Ministry of Justice, who appeared for all the respondents, in his reply, pointed out that at the time the plaintiffs took out their actions they were not an existing trade union by reason of the 1978 Amending Decree. If that was correct, he said, the substratum of the claim was gone as the plaintiffs would have had no legal right to bring their actions. He contended that references to the 1973 and 1976 Decrees were irrelevant and that the power of the Federal Military Government to promulgate the 1978 Amending Decree was not challenged. He asked that the appeal be dismissed.
It is not disputed that as a matter of general principle a personal action, subject of course to the rules as to the survival of actions, dies with the person (Actio personalis moritur cum persona). Equally, a non-existing person – natural or legal – cannot institute an action. Nor, as discussed by Dickson, J., in Agbonmagbe Bank Ltd. v. General Manager, G.B. Ollivant Ltd. (1961) 1 All NLR 116, will an action be allowed to be maintained against a defendant, who, as sued, is not a legal person. Tacit approval was given to the case by the Supreme Court (Brett, Onyeama and Ajeigbo, JJSC.,) in Manager, SCOA., Benin City v. G.S. Momodu S.C.23/1964 (unreported) decided on 17th November, 1966, while making a passing reference to the impropriety: “Of an action against “the Manager, SCOA, Benin City” who is clearly not a juristic person: ….”.
Although no point was taken on the issue in the appeal, that court felt obliged to point this out at the tail end of its judgment. The original ground of appeal which asserted that the legal rights of the appellants had accrued to them before the enactment of the Decree and that the Decree, though retrospective, was not specific on those rights which had accrued, would at first glance appear attractive, but, on a close examination, the fallacy is readily apparent. The Decree could only be specific or not specific on the rights of a person in being. Where the Decree attacks the very person and destroys its existence before the date of the accrual of those supposed rights, the rights could not have accrued by reason of the very fact that the person had ceased to exist before the so-called accrual date.The powers of amendment possessed by the courts may be, and so often are, most beneficial in enabling the courts to amend proceedings where the justice of a case so demands. This, however, cannot be used to bring into being what does not exist. The name of a person, who is in being, in a natural state or in contemplation of law, may be wrongly written and may, by correction, be remedied; but no amount of correction can bring a non-existent person into existence, or cloak him with juristic personality, subject, of course, to the rules as to transmission of interest on death and as to probate.
On 3rd August 1977 “the Nigerian Nurses Association”, which had before then been a registered Trade Union, was, by operation of the 1978 Amending Decree, obliterated out of existence. As at 30th November, 1977 and 6th January, 1978, it was no more, in the contemplation of law, alive, to have taken out the writs it took out on those dates. In other words it was no more alive either to seek the declarations it sought from the court, or to question the propriety of the acts of the Commissioner for Labour, or to seek a determination as to whether those acts were intra vires or ultra vires the powers of the Commissioner for Labour. It was, as at those dates, caput mortuum.The Federal Court of Appeal in its judgment came, in my view, to the right conclusion when it held (per kazeem, JCA.,) that: “The effect of the amendment made by this Decree No. 22 of the 1978 is that with effect from 3rd August, 1977, (i.e. prior to the time when the Steering Committee meeting of the Nurses Association was held on 1st September, 1977 or when the Inaugural Conferences were held on 1st November 1977 and 8th December, 1977 respectively), the 1st Respondent was no longer a Registered Trade Union and it could not have claimed that it was the only trade union that should take part in either the Steering Committee Meeting or the Inaugural Conferences. (Underlining is mine)”.
After deciding that the plaintiffs had ceased to exist as from the date of the Amending Decree, namely, 3rd August, 1977, I do not consider it any more necessary to go into the fruitless exercise of determining what the powers of the Commissioner for Labour were to give directives whether under the Trade Unions Decree 1973 or under the Trade Unions (Central Labour Organisations) (Special Provisions) Decree 1976, or whether he had the power to issue the directives contained in Exhibit 26. In the result this appeal must be, and is hereby, dismissed. The judgment of the Federal Court of Appeal, which set aside the judgment of the Kaduna High Court and dismissed the plaintiffs’ case, is hereby upheld. The respondents will have the cost of this appeal which is fixed at N300.00.
G. S. SOWEMIMO, J.S.C.: I have had a preview of the judgment of my learned brother, Aniagolu, JSC., and I am in complete agreement with him. I agree that the appeal be dismissed and the judgment of the Federal Court of Appeal confirmed. I also agree with the order as to costs made by my learned brother Aniagolu, JSC.
M. BELLO, J.S.C.: I have had a preview of the judgment of my learned brother, Aniagolu, JSC., I agree that the judgment of the High Court was given per incuriam. By virtue of the provisions of the Trade Unions (Amendment) Decree 1978, the plaintiffs/appellants had ceased to exist as legal persons capable of suing and being sued at the time they instituted the suit and also when the judgment was given in their favour. The Court of Appeal acted rightly in setting aside that judgment. I agree the appeal should be dismissed. I endorse the orders made by Aniagolu JSC.
C. IDIGBE, J.S.C.: I have had the advantage of a preview of the judgment just read by my learned brother, My Lord Aniagolu, JSC., for the reasons given by him and with which I am in complete agreement, I would also dismiss this appeal and it is hereby dismissed. I endorse the orders proposed in the said judgment.
A.O. OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Aniagolu, JSC. I agree with it. However, I find it desirable to add the following comments on the only question that actually arises in this appeal. This question that arises in this appeal is as to the legal existence of the plaintiffs/appellants to give them competence to institute the proceedings in the High Court (that led to this appeal at the time the suit was filed) on the 30th day of November, 1977. The 1st appellant was before the 3rd of August, 1977 one of the registered trade unions in Nigeria according to the pleadings by both parties. In December, 1975, during the Military Administration of Nigeria, the Federal Military Government declared its intention to restructure trade unions set up in the country and bring them under one labour organisation. In 1976, the Trade Union (Central Labour Organisations) (Special Provisions) Decree, Decree No. 44 of 1976 was promulgated by the Federal Military Government. The decree amended the 1973 Trade Union Decree, Decree No.31 of 1973 and made provision for the appointment of an Adminstrator of Trade Unions (See Section 2(1) ). It cancelled the registration of the four existing central labour organisations namely:
(1) The Labour Unity Front
(2) The Nigerian Trade Union Congress
(3) The Nigerian Workers Council
(4) The United Labour Congress (Section 1(1) and (2))
The duties and functions of the Administrator were spelt out in Section 3(1) of the Decree which reads: “The Administrator is hereby charged with the responsibility
(a) for performing on behalf of trade unions the same duties as are normally performed by a central labour organisation including
(i) representing the general interests of trade unions on any advisory body set up by the Federal Military Government
(ii) promoting the education of members of trade unions in the field of labour relations and connected fields
(iii) collecting and disseminating to members of trade unions information and advice on economic and social matters
(iv) giving advice, encouragement and financial assistance to trade unions in need thereof.
(b) for taking all steps necessary to effect the formation of a single central labour organisation to which shall be affiliated all trade unions in Nigeria.
(c) for taking all steps as the Administrator may consider necessary to encourage and effect the formation,
whether by amalgamation or federation of existing trade unions or otherwise of strong and effective trade
(d) for the management and protection of the funds and properties of the bodies to which Section 1 of this Decree relates.” (Underlining is mine)
The administrator (3rd respondent) was not given absolute power. He was put under the direction of the Commissioner for Labour as is evident from Section 6 of the Decree which provides as follows: “The Commissioner may give directions to the Administrator with respect to the exercise of the administrator’s functions and it shall be the duty of the Administrator to comply with the directions.” (Underlining is mine). It appears that in the course of the execution by the Administrator, (3rd respondent) of his assignment under Decree No. 44 of 1976, the 1st appellant whose secretary the second appellant was, felt that its existence was threatened by the various steps being taken and in November, 1977 commenced suit No. KDH/131/77 in the High Court of Justice of Kaduna State at Kaduna claiming:
“(1) A declaration that the Nigeria Nurses Association and the Nigeria Association of Nurse Anaesthetic by virtue of their being existing trade unions of Nurses and Midwives were the only competent bodies whose delegates were entitled to attend the inaugural conference of industrial unions for nurses and mid-wives and now redesignated “Nurses and Midwives Association of Nigeria” on 1st of November, 1977.
(2) A declaration that the candidate whose nomination papers were duly filed within the stipulated period and remained unopposed at the close of nomination should be declared duly elected.
(3) A declaration that the letter No. KML.IK/58/S.L/Sec/506 dated 17th of October 1977 and addressed to the General Secretary of Nigeria Nurses Association and directing inter alia “that all the organisations in the Nigeria Midwifery profession whether registered or not should be represented on the steering committee and conference” is ultra vires the powers of the Federal Commissioner for Labour and therefore of no effect in law.” (Underlining is mine).
On 14th March, 1978, the appellants also instituted suit No. KDH/37/78 against the respondents claiming:
“(1) A declaration that the election held by the defendants on the 8th of December, 1977 at Lagos City Council Hall is null and void and without effect in law
(2) A declaration setting aside the result of the said election.”
Both suits were consolidated for trial by the High Court (Aroyewun, J.,). Evidence of witnesses was heard and counsel addressed the court. The court then adjourned judgment for the 12th of October, 1978. But on the 15th day of August 1978, that is, before judgment in the consolidated suit was delivered by Aroyewun, J., Decree No. 22 of 1978 “Trade Unions Amendment Decree 1978” was promulgated and published by the Federal Military Government. The commencement date of the Decree was expressly set out in the Decree as the 3rd of August, 1977. The learned trial judge unaware of the promulgation of the Decree, delivered his judgment (granting all the declarations and reliefs claimed in the consolidated suit) on the 12th day of October, 1978. On appeal, this judgment was set aside and the claims dismissed by the Federal Court of Appeal. The plaintiffs now want the judgment restored.
The four additional grounds of appeal were the only grounds dealt with in the Brief of Arguments filed by the appellants’ counsel. Of these four grounds, only the first ground needs be dealt with in this judgment as its failure disposes of the appeal. The ground reads: “The learned Justices of Appeal erred in law in upholding the appeal of the respondents and entering judgment for the defendants/respondents herein on the principle that when at the time of giving his judgment the learned trial Judge failed to recognise that the plaintiffs/appellants had ceased to exist as a trade union in law by virtue of Section 2(1) of the Trade Union (Amendment) Decree No.22 of 1978 which had in effect cancelled the certificate of registration of the appellants, whereas by Trade Union Decree No. 31 of 1973 the respondents are charged with the responsibility to encourage and effect the formation, whether by amalgamation or federation of existing trade unions and NOT to cancel the registration of an existing trade union not in any way violate (sic violating) the provision of an existing trade union law.”
Of the four questions for determination stated in the appellants’ brief, only question (d) touches this ground. It reads:
“Can the Honourable Commissioner for Labour justifiably and equitably promulgate Decree No. 22 of 1978 and under Section 2(1) thereof cancel the registration of the appellants’ union and at the same time enjoin the Administrator to register the competing faction of a trade union when the whole issue was ‘sub judice’ and the subject matter of the decision of the High Court; which in turn gave rise to this appeal.”
This question does not arise as the Decree No. 22 of 1978 was not promulgated by the Commissioner for Labour but by the Federal Military Government.
By Section 1(1) of the Constitution (Basic Provisions) Decree No. 32 of 1975, it is provided that:
“The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.”
Section 2(1) of the Decree gave the mode of exercising the legislative powers by the Federal Military Government and reads:
“The power of the Federal Military Government to make laws shall be exercised by means of decrees signed by the Head of the Federal Military Government.”
Decree No. 22 of 1978 was not signed by the Commissioner for Labour but by Lt. General Olusegun Obasanjo, Head of the Federal Military Government.
The retrospective effect of the Decree, distasteful as it is, is valid as Section 3(4) of Decree No. 32 of 1975 stipulates:
“Where a provision contained in a Decree, edict or subsidiary instrument is expressed to come into force on a particular day, it shall be construed as coming into force on the expiration of the previous day.”
Section 3 of the Decree No. 22 of 1978 expressly prescribed 3rd day of August, 1977 as the day the Decree came into force.
The Constitution (Suspension and Modification) Decree No. 1 of 1966 and the Constitution (Basic Provisions) Decree 1975 in no way deprived the former Federal Military Government of the power of making Decree No. 22 of 1978, a non-penal statute retrospective. It was competent for the Federal Military Government to make the provisions of the Decree retrospective. Lord Ashbourne in Smith v. Callander (1910) AC 297 said at 305:
“It is obviously competent for the legislature in its wisdom, to make the provisions of the Act of Parliament retrospective.”
No one doubts the competency of the legislature to pass retrospective statutes if they think fit and Section 1(1) and Section 3(4) of Decree No. 32 of 1975 clearly gave the Federal Military Government that power. In Calder v. Bull (1798) 3 Dallas (US) 386, 391, Chase, J., observed:
“Every law that takes away or impairs rights vested agreeably to existing laws is retrospective and is generally unjust and oppressive; it is a good general rule that a law shall have no retrospect, but in cases in which laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement.” (Underlining mine)
Can it be said that the Trade Union (Amendment), Decree 1978 No. 22 was not for the benefit of Trade Unions and working community in Nigeria I do not think such judgment can justifiably be passed on it.
Courts in this country have no power to restrain the legislature from exercising their powers to make laws for the peace order and good government of the country. More importantly, during the Military Administration, the power to entertain any question as to the validity of a Decree was taken away from it (See Section 6 of Decree No. 1 of 1966), so that the fact that the appellants had instituted an action in court for declaratory reliefs could have no legal consequences on the exercise of legislative powers (of the Federal Republic of Nigeria), by the Federal Military Government.
The allegation of mala fide in the promulgation of Decree No. 22 of 1978 is, in my view, without foundation having regard to the fact that it was the culmination of the reconstruction exercise started in 1975.
The effect of the cancellation of the certificate of registration of the appellant as a trade union is the deprivation of the power to perform any act in furtherance of its purposes. Section 2(2) of Decree No. 31 of 1973 reads:
“Where a trade union registered under this Decree ceases to be so registered it shall not thereafter perform any act in furtherance of its purposes.
Provided that nothing in this subsection shall prevent a trade union from taking any steps which may be necessary for the purpose of dissolving the union.” And subsection 1 of Section 2 stipulates:
“A trade union shall not perform any act in furtherance of the purposes for which it has been formed unless it has been registered under this Decree.
Provided that nothing in this section shall prevent a trade union from taking steps (including the collection of subscriptions or dues) which may be necessary for the purpose of getting the union registered.”
When the certificate of registration of a trade union is cancelled, the trade union ceases to enjoy the privileges conferred by the Trade Union Decree No. 31 of 1973. Section 7(5) reads:
“A trade union whose registration is cancelled under this section shall, as from the date of cancellation, cease to enjoy the privileges conferred by this Decree on Trade Unions but any liability incurred by the union before that date shall not be affected by the cancellation and may be enforced against the union on and after that date as if the cancellation had not taken place.” (Underlining is mine)
Section 9(1) (b) reads:
“Where the registration of a trade union is cancelled under Section 7 of this Decree, the trade union in question shall be dissolved in accordance with its rules within the period of three months beginning with the date of the final refusal or cancellation as the case may be.” (Underlining is mine)
The 1st appellant being a trade union has legal personality (see Bonsor v. Musicians Union (1956) AC 104. (see Sections 2 and 20, Trade Union Decree 1973). What is remarkable in the provisions of Decree No. 22 of 1978 is that it dispensed with the processes of cancellation of registration in Section 7 of Decree No. 31 of 1973. It cancelled the certificate of the 1st appellant, dissolved the union and gave directions as to distribution of its assets. In other words, the existence of the 1st appellant as a trade union was terminated with effect from the 3rd day of August, 1977 by operation of law. A registered trade union is a legal person and the birth and death of legal persons are determined not by nature but by the law. They came into existence at the will of the law, and they endure during its pleasure. Their extinction is called dissolution and this is what Section 2(1) of Decree No. 22 of 1978 did to the 1st appellant.
The learned author of Salmond on Jurisprudence 12th Edition, dealing with the subject of PERSONALITY said at page 301 and commented as follows:
“Ordinarily speaking, the personality of a human being may be said to commence existence on birth and ceases to exist at death; and in general the law takes the same view. Dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives and are now as destitute of rights as of liabilities. They have no rights because they have no interests. They do not even remain owners of their properties until their successor enters upon their inheritance.”
The 1st appellant went to court and instituted these proceedings because it thought it was a legal person at the time – A legal person is any subject matter other than a human being to which the law attributes personality –
“Corporations are undoubtedly legal persons and the better view is that registered trade unions and friendly societies are also legal persons though not verbally regarded as corporations.”
When the 1st appellant’s existence was terminated by the Decree as from 3rd August, 1977, it became destitute of rights and liabilities as from that date. It could not therefore commence any legal proceedings on the 30th day of November, 1977 and the legal proceedings it instituted before the promulgation of the Decree No. 22 of 1978 abated immediately the Decree came into force. The Federal Court of Appeal was therefore justified in allowing the appeal of the defendants.
For the above reasons and for the reasons contained in the judgment of my learned brother Aniagolu, JSC., I would dismiss this appeal. I hereby dismiss it and affirm the judgment of the Federal Court of Appeal. The appellants are to pay the respondents costs in terms of the order as to costs made by my learned brothers Aniagolu, JSC., and Sowemimo, JSC.
Other Citation: (1981) LCN/1899(SC)