The State V. Governor Of Osun State & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the ruling handed out by Aremu J., while sitting at the High Court of Justice, Osogbo in Osun state of Nigeria on 6th May, 1996. The learned trial judge struck out the Appellant’s case.

An application for Judicial Review of the directive or decision of the Government of Osun State dated 31st July, 1995 in respect of the use and control of designated motor parks was initiated by the appellant against the 1st and 2nd respondents. The 3rd respondent filed an application to be joined as an interested party. The application for joinder was granted in the Ruling delivered on 19th September, 1995.

While the Motion on Notice for Judicial Review of the decision of Osun State Government dated 31st July, 1995, was still pending, the Trade Unions (Amendment) Decree No.4 of 1996 was promulgated; having its commencement date as 5th January, 1996.

The 3rd Respondent thereafter filed and argued an application that the appellant’s case be struck out on the ground that the appellant is no longer a juristic person by virtue of the Trade Unions (Amendment) Decree No.4 of 1996 which had legislated the appellant out of existence. The appellant argued to the contrary.

The learned trial judge considered the reasoned submissions advanced by both sides. He arrived at the conclusion that in view of the provision of section 10 of the amending Decree No.4 of 1996, the Third Schedule in the Principal Act, 1973 cannot stand side-by-side with the Third Schedule of Decree No.4 of 1996. The learned trial judge found that by necessary implication, the appellant had been legislated out of existence and therefore lost its legal status. The appellant’s claim was consequently struck out. The appellant felt unhappy with the poise of the learned trial judge and has appealed to this Court. The Notice of Appeal which carries four Grounds of Appeal was filed on 14-5-96. The reliefs sought from this Court are:

“(i) An order setting aside the decision of the lower court complained of.

(ii) An order sending the case back to the lower court for hearing before another judge of Osun State High Court. ”

The two issues formulated on behalf of the appellant for a proper determination of the appeal read as follows:

“1. Whether on the materials before the court the learned trial judge was right in his construction of Decree No. 4 of 1996 on which he predicated the striking out of this case.

2. Whether the learned trial judge was right in not adjourning the ruling on the objection to the competence of the action to investigate the allegation that his ruling was already made known to the third respondent so as to enable him decide whether or not he should continue with the further hearing of the case.”

On behalf of the 1st and 2nd Respondents, two Issues couched for determination of the appeal read as follows:

“2.1 Whether the relevant provisions of the Trade Unions (Amendment) Decree No. 4 of 1996 and the provisions of the Trade Unions Act, Cap 437, Laws of the Federation of Nigeria, 1990 were not properly construed by the learned trial judge before he arrived at the decision that the Appellant had been legislated out of existence and therefore had no juristic personality to maintain the suit.

2.2 Whether or not the learned trial judge had not done necessary investigation in the circumstance of the allegation that the Ruling of the Court had leaked before the said Ruling was delivered.”

On behalf of the 3rd Respondent, the two Issues distilled for determination of the appeal read as follows: