On the 4th day of October, 2022, the Minister of Labour and Employment, in a desperate move to break the cohesion of academic staff in Nigerian universities under the umbrella of ASUU, purportedly, through the Registrar of Trade Unions, registered two new academic trade unions amongst which is the Congress of Nigerian University Academics (CONUA). The pertinent question is: can such registration stand in view of the provisions of the law and the pronouncements of the courts on the issue? The answer is emphatic and capital NO.
Before continuing with the discussion, it is necessary to provide the relevant statutory and constitutional provisions on the issue.
(1) Section 3(2) of the Trade Unions Act Cap T14 Laws of the Federation of Nigeria, 2004 as updated to 31st December, 2010 provides:
No combination of workers or employers shall be registered as a trade union save with the approval of the Minister 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. (emphasis supplied)
(2) Section 5(4) of the same Trade Unions Act provides:
The Registrar shall not register the trade union if it appears to him that any existing trade union is sufficiently representative of the interests of the class of persons whose interest the union is intended to represent. (emphasis supplied)
(3) Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides:
Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that commission does not accord recognition. (emphasis supplied)
(4) Section 45(1) of the same 1999 Constitution provides:
Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons. (emphasis supplied)
As can be seen from the above, statutorily, no trade union shall be registered to represent workers or employers in a place where there already exists a trade union. The above provision of the Trade Unions Act is without deference to the Constitutional provision which guarantees the right to form or belong to any trade union. The issues that arise for consideration from all the statutory and constitutional provisions cited above are: (a) whether section 3(2) of the Trade unions Act is inconsistent with section 40 of the Constitution and to the extent of the inconsistency, null and void. (b) whether the power granted to the Registrar of Trade Unions by section 5(4) of the Trade Unions Act is discretionary.
The Supreme Court had long settled the first issue in Osawe & Ors v Registrar of Trade Unions [1985] 4 NWLR (Pt.4) 755. Section 3(2) of the Trade Unions Act of 1978 was challenged on the ground that it was an infringement on section 37 of the 1979 Constitution (now section 40 of the 1999 Constitution) which guaranteed freedom of association. The Supreme Court held inter alia that the right of association guaranteed by section 37 of the 1979 Constitution like other rights in Chapter IV of the Constitution was not absolute right and could be derogated from in accordance with section 41 of the same Constitution (now section 45 of the 1999 Constitution). That the Trade Unions Act 1978 was a law passed in the interest of public order. It was necessary to ensure order in the chaotic proliferation of trade unions which was the practice before the promulgation of the law. Section 3(2) of the Trade Unions Act was therefore declared by the Supreme Court NOT unconstitutional. In fact the Supreme Court held that by section 3(2) of the Trade Unions Act, it was mandatory for the Registrar of Trade Unions to refuse registration of a trade union once there is in existence a trade union that caters for the same interest as the one applying for registration.
The above Supreme Court decision was again followed by the Supreme Court in Registered Trustees of National Association of Community Health Practitioners (RT, NACHPN) & Ors v Medical and Health Workers Union of Nigeria (MHWUN) & Ors [2008] LPELR-3196 (SC); [2008] 2 NWLR (Pt.1072) 575. Aloma Mariam Makhtar, JSC (as he then was) delivering the lead judgment quoted Osawe’s case with approval in holding that section 3(2) of the Trade Unions Act makes it mandatory for the Registrar of Trade Unions, on receiving an application to register any trade union, to ensure that there is no any other registered trade union in existence which caters for the same interest as the one applying for registration. That if there is, it becomes incumbent on the Registrar, as the custodian of such information, to decline to proceed to put into effect the machinery for registration of the new trade union. As to whether section 3(2) is unconstitutional, the Supreme Court’s decision on this issue in Osawe’s case was reaffirmed by Aloma Mariam Mukhtar, JSC (as he then was).
The second issue was addressed by the National Industrial Court in Non-Academic Staff Union of Education & Associated Institutions (NASU) v The Honourable Minister of Labour and Employment & Ors [Unreported] Suit No NICN/ABJ/373/2021 the judgment of which was delivered on 30th March, 2022 p.24 para 101. The 3rd Defendant (The Non-Teaching Staff Union of Polytechnics) relying inter alia on section 5(4) of the Trade Unions Act had argued that 1st and 2nd defendants’ (Minister of Labour & Employment and the Registrar of Trade Unions respectively) powers under the Trade Unions Act are discretionary. The Court per Kanyip, President, National Industrial Court of Nigeria (PNICN), disagreeing with the submission of counsel to the 3rd defendant held:
A look at sections 3(2) and 5(4) of the Trade Unions Act will reveal the fallacy of the 3rd defendant’s argument. Section 3(2) is very specific and categorical in stating that … no trade union shall be registered to represent workers or employers in a place where there already exists a trade union.” So when section 5(4) talked of “… if it appears to him that any existing trade union is sufficiently representative of the interests of the class of persons whose interest the union is intended to represent,” this cannot be qualification on section 3(2) of the Trade Unions Act. The issues of appearance to the Registrar of Trade Unions and sufficiency as used in the sub-section do not entail any discretion on the part of the duty imposed on the Registrar of Trade Unions as the 3rd defendant seems to think. Section 3(2) is mandatory enough for the Registrar of Trade Unions to act. The duty to act under section 5(4) is dependent on the criterion placed by section 3(2). Once there exists a trade union, the Registrar of Trade Unions shall not register a new one seeking registration – section 3(2).
The facts of the case together with the declarations and orders by the court are very interesting and are hereby reproduced. The 3rd defendant (The Non-Teaching Staff of Polytechnics) had applied for registration as a trade union to the 2nd defendant (The Registrar of Trade Unions). The 2nd defendant, vide a letter dated 18th day of January, 2013 refused to register the 3rd defendant. In 2021 (eight years later), the 3rd defendant appealed to the 1st defendant (The Minister of Labour and Employment) against the decision of the 2nd defendant refusing to register the 3rd defendant as a trade union. The 1st defendant considered the appeal favourably and in a letter on its behalf by the Director of Trade Union Services and Industrial Relations in the Federal Ministry of Labour and Employment dated 24th day of August, 2021 addressed to the General Secretary of the 3rd defendant, the 3rd defendant was informed that the 1st defendant’s approval had been forwarded to the 2nd defendant for the issuance of the Certificate of Registration to the 3rd defendant. Pursuant to the said directive, the 2nd defendant on the 7th day of December, 2021 issued a Certificate of Registration to the 3rd defendant. The claimant, believing that the issuance of the said Certificate of Registration to the 3rd defendant was wrongful, filed a suit on the 22nd day of December, 2021 vide an originating summons praying amongst others, an order withdrawing the approval and registration of the 3rd defendant as a trade union since the claimant’s jurisdictional scope covers all members of the 3rd defendant and the claimant is already in existence. The National Industrial Court found that the suit was not properly commenced since it was neither a member nor an officer of the claimant that deposed to the affidavit that activated the suit as required by section 5(5)(b) of the Trade Unions Act. The Court accordingly held that the suit was incompetent and accordingly struck it out. However, assuming the court would be held to be wrong in striking out the suit, it proceeded to decide the case on its merits. Having found the case to be meritorious, it made the following interesting declarations and orders:
(a) It is declared that the 1st and 2nd defendants having acted wrongly by approving and registering the 3rd defendant as a new trade union in the name of the Non-Teaching Staff Union of Polytechnics contrary to section 3(2) and 5(4) of the Trade Unions Act renders such approval and registration void and a nullity.
(b) It is declared that the claimant, being a creation of statute with its jurisdictional scope specified under item 27 of Part B of the Third Schedule to the Trade Unions Act, the 1st and 2nd defendants cannot by administrative fiat factionalize same by giving approval to the registration and/or issuing of Certificate of Registration to the 3rd defendant as a new trade union to take over the area the claimant already exists and statutorily covers.
(c) The approval and registration of the new trade union known as the Non-Teaching Staff Union of Polytechnics since the claimant’s jurisdictional scope covers all non-academic workers employed in publicly and privately owned educational, research and associated institutions including Polytechnics and it is already in existence where the purported new union desires to operate is hereby withdrawn.
(d) Accordingly, the 1st and 2nd defendants are hereby ordered to withdraw the Certificate of Registration with No. 0134 and dated the 7th day of December, 2021 issued to the 3rd defendant and cancel same forthwith.
(e) The 1st and 2nd defendants are hereby restrained from recognizing and dealing with the Non-Teaching Staff Union of Polytechnics as a trade union since the claimant’s jurisdictional scope covers all non-academic workers employed in publicly and privately owned educational, research and associated institutions including Polytechnics in Nigeria and it is already in existence where the purported new union desires to operate.
(f) The 3rd defendant is hereby restrained from parading itself as a trade union capable of unionizing non-academic workers/employees of Polytechnics who are already eligible and bonafide members of the claimant.
As can be seen from the foreging pronouncements of the Courts in giving effect to section 3(2) of the Trade Unions Act, no trade union shall be registered to represent workers in a place where there already exists a trade union. It therefore means that since Academic Staff Union of Universities (ASUU) is already in existence and represents all academic staff in Public Universities in Nigeria who are within its jurisdictional scope, the registration of Congress of Nigerian University Academics (CONUA) by the Registrar of Trade Unions supposedly on the directives of the Minister of Labour & Employment is illegal, null and void. Even though the President of ASUU is quoted to have said that the registration of CONUA is ‘inconsequential’, he should not stop at that statement. He should ensure that ASUU files an action at the National Industrial Court for an order for the certificate of registration issued to CONUA to be withdrawn and cancelled forthwith as well as for an order restraining CONUA from parading itself as a trade union capable of unionizing academic staff in Nigerian Universities who are already within the jurisdictional scope of ASUU. The desperate move by the Minister of Labour and Employment to polarize and break the ranks of ASUU members cannot therefore stand having regards to the position of the law
Prof Kenen is of the Department of Commercial Law
Benue State University, Makurdi
