COMPULSORY REGISTRATION OF TRADE UNIONS: A CRITIQUE ON

OSAWE V. REGISTRAR OF TRADE UNION

INTRODUCTION

Just like there are in other states of the world, the Nigerian nation is also
engaged in labour relations and a gale of activism by trade unions has
engulfed the world by workers. Trade Union law is a settled law within
international arena and local jurisprudence, there are rights that workers
have be it that they work in the public or private sectors of the society to
ensure that they are allowed to form unions or association which will cater
for and protect the interest and welfare of the members.

However, there are different attempts that have been targeted at regulating
these associations and the freedom of association so that it is not
manipulated and misused by the citizenry and this has led to an attempt to
formulation of legislations targeted at regulating trade unions all over the
world. However, the societies have witnessed continued and consistent
struggle between the two classes in a labour union the classes of the
employer and the employee and this has led to trade union activism.

It is therefore of import to take a critical look at the fundamental basis upon

which the rights of these workers to trade union activism rests and how the
exercise of these rights seemingly impinges on the rights of the employees.
It is on this premise that this work will critically access the case of Osawe v.
Registrar of Trade Union and the judgment of the Supreme Court to
establish the fundamental principles of the rights of association and the
limitations.

Definition of Trade Union

Trade Union can be conceptualised as an organisation of workers which is

formed for the protection of the interest which are considered as incidental
to the employment of workers. Trade Unions can also be said to include
employee or employers associations and it can be said to be an agent of

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social economic change in the social strata. It can be defined as the
collection/ association of salary/wage earners with the specific objective of
improving and safeguarding and also improving their employment and wage
conditions for the entire membership of the union to ensure that they are
better treated and live in better condition. The membership of a trade union
can be considered as a set of people who have banded together for the
achievement of a common goal in specific key areas that are of great concern
to them such as hours of work, working condition, wages and etc. Through
its leadership, trade unions engages in bargaining with the employers for
the interest of its members in such areas as work rules, wages, firing,
hiring, promotion, safety in the workplace, work ethics, complaint
procedures, wages, work hours etc.

A combination of employers or workers or any combination of such either for

a permanent or temporary purpose of regulating the terms and conditions of
employment can be said to be a trade union. In the case of Registered
Trustees of National Association of Community Health Practitioners of
Nigeria and Others V Medical and Health Workers Union of Nigeria and
Orthers3. It was a fact that there was in existence a registered trade union
Medical and health Workers Union of Nigeria and others has applied to the
Registrar of Trade Union that it should not recognise the application for
registration of Senior Staff Trade Union of National Association of
Community Health Practitioners of Nigeria which caters for the same
interest as the one which was applying for registration1. The court held it is
the direction of the registrar after he would have made his investigation and
become satisfied to ensure that there was no existence of another body - a
trade union which has been registered and providing the same interest.

HISTORICAL ANALYSIS OF TRADE UNIONISM IN NIGERIA

Before the colonisation of the Nigerian state, the people were primarily
craftsmen and had formed organisations in this line. These organisations

1Orifowomo, O.O An Appraisal of the right to Strike under Nigerian Labour Laws in Ife
Juris Review (2004) Vol.1, IFJR, part 2.

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however could be said to have been trade unions because they were
organised to regulate trade practices, to fix prices - wages - for their services
and also offer mutual aid to their members. Good examples of such are
organisations of hunters, carvers, weavers and blacksmiths2. Many of these
organisations consisted of tradesmen and their children or other blood
relatives -usually sons, as there were no contracts of employment as we
have in modern days as the children learned the trades and took over from
their fathers.3 In some villages, these organisations can still be seen in
modern days performing very important functions such as settling of
disputes, fixing of prices, regulation of relationship between tradesmen, and
organising the payment of tribute to the King4.

In Nigeria, organised trade union began on Monday 19 August 1912 in when

workers in the then civil service organised themselves into trade unions as
was done in Sierra Leone.5 It was one Sierra Leonean who summoned a
meeting of about thirty-three indigenous workers, and by the fifth meeting
on 15 November 1912 after advice was received from Sierra Leone, the aim
of the union was decided and this was to promote the welfare and interests
of the indigenous workers of the Nigerian Civil Service6. The orgnaisation
that was formed thereafter was known as the Civil Service British Workers
Union but later changed to the Nigerian Civil Service Union shortly before
independent.7

This organisation remained an exclusive union of Africans of first class

workers until the outbreak of the First World War and this led to an
astronomical rise in the cost of living and the union had to seek the support
of other workers outside the first class to agitate for 30% increase in basic
salaries as the war bonus which was granted by the colonial

2 Egboh, E. O, Trade Unions in Nigeria. African Studies, 27(1), 35-40. (1968).

3 Fashoyin, T. (1980). Collective Bargaining in the Public Sector in Nigeria. Macmillan Nigeria
Publishers.
4 Lloyd, P. (1953). Craft Organisations in Yoruba Towns. Edinburgh University Press.
5 Egboh, ibid
6 Okonkwo, R. (1993). The Nigeria Civil Service Union, 1919-1922. The International Journal

of African Studies, 26(3), 609-622.

7 Yesufu, T. M. (1982). The Dynamics of Industrial Relations: The Nigerian Experience.

Ibadan: University Press Limited.

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administrators8. It was also the same union which later discussed the other
grievances of members which included salary discrimination scale in favour
of Europeans against African workers who are performing same jobs, and
abolition of the frequent imposition of fines as a measure of discipline9.

The railways Workers Union and the Nigeria Union of Teachers were formed
in 1931 and before this time railway workers were under the Nigerian Civil
Service Union. Due to the economic crisis of 1930, the Mechanic Union was
formed out of the Nigerian Civil Service Union; although the former claimed
to embrace all employees of the railway; the clerical workers chose to remain
with the later.10 In 1938, the Nigerian Trade Union Ordinance was passed
and this led to an astronomical rise in the number of trade unions and
membership of trade unions.

Under the regime of General Murtala Mohammed in 1975, over a thousand

trade unions were registered and the government also established a
Commission of Enquiry to vet the activities of the unions. There was the
appointment of administrators as the unions were polarised and
ideologically divided therefore creating labour problems for the country. The
Unions were later restructured into 42 along industrial lines and a Labour
centre was created11. In 1978, the Nigerian Labour Congress (NLC) was
created and the pre-existing 42 industrial unions became affiliates12. This
newly formed labour Union was given legal backing through the Trade Union
Decree in 1989.

SUMMARY OF THE FACT OF OSAWE V. REGISTRAR

In the case, Suit No: SC.100/1984, the appellants were Erasmus Osawe,
Dickson Ohikhena and Goodluck Eharevba while Registrar of Trade Unions
were the respondents. The decision was made in the Supreme Court of

8 Ananaba, W. (1979). The Trade Union in Africa. C.Hurst & Co (Publishers) Ltd. London in
association with Nwamife Publishers Ltd. Nigeria.
9 Yesufu, ibid
10 Yesufu, ibid
11 Nigerian Federal Ministry of Labour and Productivity, 1976 vol.21
12 Northrup, D. (1978). Trade Without Rulers: Pre-Colonial Economic Development in South

Eastern Nigeria. Clarendon Press.

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Nigeria, On Friday, the 31st day of May, 1985. The appellants made an
appeal against the decision of the Court of Appeal dated 24th January, 1984
allowing the appeal of the respondent who was ordered by the High Court
Benin City to register the appellants' Union13.

It was applied by the appellant to the Respondent on the 13th December

1980 to register "The Nigerian Unified Teaching Service Workers Union
Later Renamed Nigerian Administrative Staff Union of Primary and Post
Primary Schools" as a Trade Union. By letter No. ML.TU/IC/27/T/42 of
6th July, 1981, the Respondent refused to register the proposed Union and
gave the reason for his refusal namely:- "That there is already in existence a
recognised Trade Union - The Non-Academic Staff Union of Educational and
Associated Institutions, which caters for the class of people who now intend
to form the new Union." The present appellants then appealed to the Bendel
State High Court against the Registrar's refusal to register their Union.
Ikom, J. held: that

"(a) That the decision of the Registrar of Trade Unions as contained in

Exhibit'" A" in this appeal is unconstitutional, invalid, null and void and of
no effect.

(b) That the refusal of the Registrar of Trade Unions to register the Nigerian
Unified Teaching Service Workers. Union constitutes an infringement of the
fundamental rights of the Appellants as enshrined in Section 37 of the
Constitution of the Federal Republic of Nigeria 1979 in so far as that Section
affects trade unions.14"

The appeal was dismissed by the Learned Supreme Court Justice with
N300.00 costs to the Respondent and the appearances were K. S. Okeanya-
Inneh, S.A.N., (with him Mr. B. E. Isherhien) For the Appelants and Mr. F.
Nwadialo, S.A.N. (Legal Adviser, Federal Ministry of Justice) (with him E. U.

13 Osawe v Reg. Trade Unions (1985) NWLR (Pt.4) 755

14 Osawe v Reg. Trade Unions (1985) NWLR (Pt.4) 755

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Ifonu, (Miss), Assistant Legal Adviser, Federal Ministry of Justice) For the
Respondents.

The claims of the court

In this case, the appellants contended that the refusal of the Registrar of
Trade Unions to register their proposed trade union was an outright
violation of their fundamental right to freedom of association which is
entrenched in the Nigerian Constitution.

However, it was claimed by the Supreme Court that the fundamental right
which is enshrined in the Constitution for freedom of association as trade
union was not automatic and was subject to the derogation set out in the
same Constitution. The Justice of the Supreme Court, Obaseki, JSC, noted
that: This right to freedom of association is made subject to its being in
consonance with 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
persons15.

Aniagolu, JSC, on his part also submitted that it was in the interest of
public order that the proposed trade union was not registered. Based on
his claim: The proliferation of trade unions clearly lends itself to chaos in
labour circles a fact which has the tendency of destabilizing society by its
tendency to wild-cat strikes and work-stoppages called by all sorts of
desperate and unviable trade unions. It is, therefore, in the interest of public
order that systematized, cohesive and responsible trade unions be
established, for the good of society.16

15 (2004) 1 NLLR (Pt. 1) 34.

16 (2004) 1 NLLR (Pt. 1) 34.

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Also in the case, His lordship stated that an existing trade union has a
vested right to cater for the interests of its members, which the courts
should protect. In his words: An existing registered trade union (in this case
the Non-Academic Staff Union of Educational and Associated Institutions) has
a vested right to cater for the interests of its members within its registered
objects, rules and regulations. Such a registered trade union has a right
which the law courts should protect that its organized labour be not thrown
into confusion, to the detriment of its registered union, by mushroom unions,
ostensibly aimed for the same purpose, springing up here and there.17

There has also been a more recent case of Registered Trustees of National
Association of Community Health Practitioners of Nigeria & Ors. v. Medical
and Health Workers Union of Nigeria18 a case in which the Supreme Court
reaffirmed its decision in Osawe's case and stated that the registration of a
trade union is not automatic; it is at the discretion of the Registrar of Trade
Unions, after he would have made his investigations and becomes
satisfied.19

Issues considered and Judgement of the Supreme Court

The basic issues considered in the judgement of the Supreme Court in this
case was that the duplication of trade unions will water-down the
effectiveness of the unions and also lead to disagreements in the conducts of
affairs and positions reached by the unions. It was also considered by the
supreme court that the registration of a trade union is not automatic but
should be decided by the Registrar of Trade Unions who will decide to
register or not register the union owing to the conclusion of its investigation
that such union pre-existed or not carrying out the same function as the
union seeking to be registered.

The Supreme court also considered the fact that it was in the interest of the
general public to disallow the registration since the Non-Academic Staff

17 ibid, (Pt. 1) 53
18 (2008) 2 NWLR (Pt. 1072) 575.
19 Ibid, at p. 609.

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Union of Educational and Associated Institutions which was a pre-existing
union was formed and has the vested right to cater for the interests of its
members within its registered objects, rules and regulations and that the
formation of another Nigerian Administrative Staff Union of Primary and
Post Primary Schools as applied by Osawe and Ors will only cause the
organized labour be not thrown into confusion, to the detriment of its
registered union, by mushroom unions, ostensibly aimed for the same
purpose, springing up here and there and for this reason, it was important
for the interest of the general public and the membership of the union to
disregard the application for registration of another such union.

Critique Of The Judgement Of The Supreme Court

The decision of the Supreme Court in this case is highly commendable as

the registration of another union body to carry-out - a duplication of the
duties of the hitherto registered union will only lead to confusion and fracas.
Therefore, for the court to have held that the second union cannot and
should not be registered is a commendable decision. Also, under the Trade
Unions Act 1990 as amended by the Trade Unions (Amendment) Act 2005, it
has been stipulated that membership of a trade union is generally open to
all persons employed in a particular trade and it is unequivocally stated in
Section 12(1) of the Act that no person who is otherwise eligible for
membership of a particular trade union shall be refused admission to
membership of that union by reason only that he is of a particular
community, tribe, place of origin, religion or political opinion.

Conclusion

In the current Trade Unions (Amendment) Act 2005, in its section 12(3), it is
stipulated that membership of a trade union by employees shall be
voluntary and no employee shall be forced to join any trade union or be
victimized for refusing to join or remain a member. The appellants in this
case are not forced to join any union but they are restricted form duplicating
an already existing and registered union as it will lead to confusion and

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duplication of duties. It cannot be debated that workers have the rights to
form their own unions or join unions as it constitute an important aspect of
the freedom of association for the advancement or protection of their
interests but the right to associate with other persons for the purpose of
forming or joining trade unions under section 40 of the Constitution is not
absolute as it is subject to section 45 of the Constitution, which recognizes
the power of Parliament to make laws in the interest of defence, public
safety, public order, public morality or public health; or for the purpose of
protecting the rights and freedom of other persons.20 The freedom of
association is also guaranteed under Article 10 of the African Charter on
Human and Peoples' Rights but this provision is also subject to national
laws. Therefore in my opinion, the decision of the Supreme Court is justified
in this case.

20 Constitution of the Federal Republic of Nigeria 1999, s. 45(1).

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REFERENCES

(2004) 1 NLLR (Pt. 1) 34.

(2004) 1 NLLR (Pt. 1) 34.

(2008) 2 NWLR (Pt. 1072) 575.

Ananaba, W. (1979). The Trade Union in Africa. C.Hurst & Co (Publishers)

Ltd. London in association with Nwamife Publishers Ltd. Nigeria.

Constitution of the Federal Republic of Nigeria 1999, s. 45(1).

Egboh, E. O, Trade Unions in Nigeria. African Studies, 27(1), 35-40. (1968).

Fashoyin, T. (1980). Collective Bargaining in the Public Sector in Nigeria.

Macmillan Nigeria Publishers.

Lloyd, P. (1953). Craft Organisations in Yoruba Towns. Edinburgh University

Press.

Nigerian Federal Ministry of Labour and Productivity, 1976 vol.21

Northrup, D. (1978). Trade Without Rulers: Pre-Colonial Economic

Development in South Eastern Nigeria. Clarendon Press.

Okonkwo, R. (1993). The Nigeria Civil Service Union, 1919-1922. The

International Journal of African Studies, 26(3), 609-622.

Orifowomo, O.O An Appraisal of the right to Strike under Nigerian Labour

Laws in Ife Juris Review (2004) Vol.1, IFJR, part 2.

Yesufu, T. M. (1982). The Dynamics of Industrial Relations: The Nigerian

Experience. Ibadan: University Press Limited.

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