Compulaw - 1st Indigenous Digital Law Library

Brief

Rule in Foss v Harbottle
Constitution of a trade union; effect on members
Ingredients of a contract

Facts

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 it's last National Delegates Conference held between 26th and 28th November, 1985. The 12th defendant is a full time national officer of the Union, it's 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.

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

i
An injunction restraining the 1st 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 an the order.

On the 5th 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 of interim injunction made by him on the 5th December, 1988 was set aside.

In support of the application the appellant deposed to a twelve paragraph affidavit with exhibits attached. There was also further affidavit deposed to by Samuel Chigbu, the Secretary of the council stating that he did not at any time inform the chief judge of any resolution of the council that the allegations against the appellant be investigated. None of the respondents, filed a counter-affidavit but at the hearing of the application in the High Court the respondent's counsel tendered some documents which were admitted without objection and marked as exhibits.

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 the 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.

Issues

1.
Whether the provision of Rule 7(v) of the Constitution of the National...
Read More

Elufioye V. Halilu (1993) CLR 9 (A) (SC)

Brief

Facts

Issues