The National Industrial Court Port-Harcourt Division, presided over by Hon. Justice Nelson Ogbuanya has held that the Corporate Affairs Commission (CAC) is not empowered by extant laws to register organizations under Incorporated Trustee which has aims & objectives of a Trade Union. The court made the decision while delivering Judgment in a Suit marked Suit No. NICN/PHC/48/2022, filed by the Maritime Workers Union of Nigeria against a rival Association, the Incorporated Trustees of Freight Forwarders Transport Association along with their Trustees and the Corporate Affairs Commission as the 10th Defendant. While clarifying that the registration of Incorporated though falls in the category of organizations reserved for CAC for registration under the Companies & Allied Matters Act, and registration of Trade Unions reserved for the Trade Union Registrar under the Trade Unions Act, the Court held that neither the CAC nor the Trade Union Registrar while carrying on statutory function under the enabling law- Companies & Allied Matters Commission or Trade Unions Act, can register an organization not falling appropriately under its statutory mandate, and so, the CAC does not have the legal power to accept and register organization as Incorporated Trustee, which by its disclosed aims & objective, is a disguised trade union, designed to carry out trade union activities, particularly conflicting with an existing trade union, as in the instant suit.
From the facts, it is the case of the Claimant, the Maritime Workers Union of Nigeria, that some members of the Claimant led by the 6th Defendant broke off from the Claimant, being the umbrella union in the of maritime sector, and went ahead to register another Association with the Corporate Affairs Commission which issued it a Certificate of Incorporation in its name, Incorporated Trustees of Freight Forwarders Transport Association, which aims & objectives are in conflict with the trade union activities of the Maritime Union. And it was indeed used to carry out trade union activities such as demanding check-off dues and tickets at Onne Port and at the highways, as well as invasion of the Maritime Union’s office, which caused fracas among the rival members at the port. The Union had earlier petitioned the CAC over the unlawful use of the Association to carry out trade union activities, of which the CAC declined to intervene but advised them to go to court. The Claimant union then brought the suit to challenge the activities of the Freight Forwarders Association, not being a registered trade union. In response, the Defendants insisted that the Association having been lawfully registered by the CAC, it can carry out its aims & objectives despite the complaints of the Claimant Union, and asked the court to dismiss the suit, apart from challenging the court’s jurisdiction, as it claimed that the dispute falls outside the jurisdiction of the court.
In a well-considered Judgment, the trial Judge, Justice Nelson Ogbuanya, dismissed the objection on jurisdiction as grossly misconceived by counsel for the Defendants. Among land mark decisions in the Judgment, on the issue of whether an Association registered under CAMA by the CAC can legally carry on trade union activities, and whether the CAC is empowered by law to register an Association as an Incorporated Trustees with aims & objectives portraying such an Incorporated Trustees as a trade union, the court made a succinct analysis of the operational distinction in the extant laws regulating registration of trade unions and those of incorporated trustees, particularly the provisions of Sections 823(1)and 825(1)(b) CAMA 2020 dealing with membership, objectives and registration of incorporated trustees, and Section 45 of the Trade Union Act which stipulates that “The Companies and Allied Matters Act shall not apply to any trade union, and registration of any such body under that Act shall be void”.
The court noted that the membership of the Defendant Association which includes “truck drivers, truck owners or transport agents within Nigeria” and operating at the Nigerian ports, and its principal objectives, which in Article 3(b) of its Constitution is “to ensure at all times the preservation of rights, claims, benefits and obligations of all members of the Association”, rather portray it as a trade union, which is “basically a workplace labour-welfare-oriented organization, recognized and registered by the Trade Union Registrar pursuant to the Trade Unions Act, with its principal role being to cater for welfare interests of designated category of workers within the specified sector”. The Court held the view that the Association with such membership and aims & objectives ought not to have been accepted for registration by the CAC. The Judge noted thus: “I find that what has happened is that the CAC has aided the 1st Defendant’s registration, and armed with the Certificate of Incorporation of the 1st Defendant, the 2nd -9th Defendants and their members started operating as a trade union within the domains of the Claimant union, which resulted in the clash with the members of the Claimant union leading to the fracas at the Onne port, which was only quelled by police intervention, to restore peace and harmony. This is an avoidable conflict if only the legal regime of operations of trade union was noted and complied with by the Defendants”. Justice Ogbuanya pointed that “Had the 10th Defendant (CAC) adverted to this legal regime, it would have queried the said aims & objectives contained in the Constitution of the 1st Defendant Association when presented for registration, as such does not properly fall within the expected organization to be registered under CAMA by the CAC”. The Judge concluded: “Thus, it is my considered view that the 1st Defendant Association does not ordinarily qualify for registration as an Incorporated Trustee, in view of the combined provisions of Ss.823 (1) and S.825 (1) (b) CAMA 2020 on criteria for membership and scope of operation of Incorporated Trustees, coupled with its evidenced modus operandi indicating its activities conflicting with the operational area of the Claimant, a registered trade union. I so hold.”
The court went on to grant declaratory and injunctive reliefs for the Claimant union: “Accordingly, the Claimant’s Reliefs (1) and (2) are hereby granted to the extent that it is hereby declared that the 1st – 9th Defendants, not being a registered Trade Union under the Trade Unions Act LFN, cannot in law collect check- off dues or any dues whatsoever from the truck drivers or members of the Claimant engaged by clearing and forwarding agencies to convey containerized goods and general cargoes from the ports including Onne Port, Rivers State to designated places within the Federation of Nigeria, or in any manner whatsoever perform the functions of a registered Trade Union. And it is hereby further declared that given the legal regime for registration and operation of organization registerable under Companies & Allied Matters Act and the Trade Union Act, as stipulated under Sections 823 (1) and 825 (1) (b) CAMA and Section 45 of the Trade Union Act, the Certificate of Incorporation dated 17th January 2019 issued by the Corporate Affairs Commission for registration of the 1st Defendant as an Incorporated Trustee does not in any manner whatsoever entitle the 1st Defendant and its members to perform the duties and activities of the Claimant trade union or any other Trade Union whatsoever. I so hold and declare”. The Court awarded N10 Million as general damages against the Defendant union for its members’ unlawful invasion of the Claimant union’s office, and N1Million cost in favour of the Claimant.