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This case is a referral from the Honourable Minister of Labour acting pursuant to his powers under section 14(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004. The referral instrument is dated 18h October 2011 but was sent to the Court vide a letter dated 2nd November 2011 with Ref. No. ML.HE/966/CON/46. This Court is being asked under the referral – To enquire into the trade dispute existing between the Steel and Engineering Workers Union of Nigeria (SEWUN) and the National Union of Shop and Distributive Employees (NUSDE) over the following points. i. Poaching of Members - workers of SEWUN engaged by Nexam Kabel Metal (Nig) Plc, 28, Henry Carr Street, Ikeja, Lagos. ii. Poaching of Members - workers of SEWUN engaged by Messrs Universal Steel Limited, Sell Metal Limited and Enamelware Division of Universal Steel Limited iii. Poaching of Members - workers of SEWUN in Galvanizing Industry Limited, Oba Akran Avenue, Ikeja. iv. Poaching of Members - workers of SEWUN in Critall Hope (Nig.) Plc, 330/332 Agege Motor Road, Challenge, Mushin, Lagos. v. Poaching of Members - workers of SEWUN engaged by Messrs Nigerchin - a Division of WAHUM Limited. The Industrial arbitration Panel (IAP) had on 7th March 2011 made an award in this matter between the parties. The National Union of Shop and Distributive Employees (NUSDE), the 2nd party at the IAP, dissatisfied with the award objected to it vide a letter dated 24th May 2011. The grounds of the objection are – 1. The award contains decisions on matters which are beyond the scope of the points referred to the IAP by the Minister. 2. Contrary to the language of the award, there was only one allegation in the points of reference to the IAP, namely, poaching of “members – workers of SEWUN” in seven companies. 3. The IAP having decided the points referred to it by the Minister in favour of the 2nd party ought to have made its award for the 2nd party. 4. Even if the decisions on the matter beyond jurisdiction of the IAP were covered by the reference of the Minister – a. The provisions of section 12(4) of the Trade Unions Act 2004, as amended by the Trade Unions (Amendment) Act 2005 take precedence over Part B of the Third Schedule to the Act. b. The right of the workers of the affected seven companies under section 12(4) of the Act to join a union of their choice is not fettered by Part B of the Third Schedule or the constitution of the 2nd party that owes its validity also to the same Act. c. It is not the intention of the law maker under section 12(4) or the Trade Unions (Amendment) Act 2005 to incapacitate the same workers he aims at liberating by leaving them union-less, such that the workers who had effectively left the 1st party are barred from joining the 2nd party or any other trade union of their choice which admits them – that interpretation would be absurd. d. By virtue of section 12(4) the workers – and not the trade unions – are kings in trade union relations. 5. The facts of the trade dispute here arose after the enactment of the Trade Unions (Amendment) Act 2005 and not before. 6. At the time of the workers joined the 2nd party they were already ex-members of the 1st party and, therefore, the 1st party had no legal standing to declare a trade dispute. 7. As there was no valid trade dispute in the circumstances, the IAP lacked jurisdiction to consider or interpret the constitution of the 2nd party on a complaint of the 1st party. The Court had asked parties, in accordance with the Rules of the Court, to file and serve their written addresses. While the appellant did, the respondent did not. In its written address dated 22nd June 2012, the case of the appellant is essentially that the IAP found at page 9 of its award that “the action” of the appellant “may not technically amount to poaching” and yet went on to make orders beyond the Minister of Labour’s terms of reference. The appellant then framed three issues for the determination of the Court, namely – 1. Award In Excess of Jurisdiction Could the IAP, after finding that the appellant did not poach members of the respondent in the affected seven companies as pinpointed by the Honourable Minister’s referral instrument, go beyond that only point of reference in its award? 2. Limits of Locus Standi at the Tribunal On the facts of this case, was the respondent or even the IAP legally entitled to question ex-members of the respondent joining the appellant when a valid trade dispute was non-existent in that circumstance? 3. Extent of workers’ New Right Under the Amended Trade Unions Act If the answers to one or all the above issues are given in favour of the appellant and this Court still considers the following a live issue, do the provisions of the new section 12(4) of the Trade Unions Act, as amended in 2005, permit ex-members of the respondent in the affected seven companies to validly join the appellant on their own volition, having regard also to the object of the new section 24(1)? Regarding issue 1, the appellant submitted that upon examination of the plain words of the Minister’s referral instrument dated August 2006, the IAP exceeded its jurisdiction when it went beyond the express terms of reference. Contrary to the words in the award, that ‘there was only of allegation the [IAP] could legitimately inquire in to, namely, whether or not the appellant poached “member - workers of” the respondent in the seven affected companies’. The appellant then referred the Court to Nestle Nig. Plc v. NUFBTE [2009] 15 NLLR (Pt. 401) 42 where this Court in appellate capacity held at page 74 E – G that – The IAP, in its arbitral functions, must keep within the terms of the referral instrument in each case. Failure to do this would mean going beyond the bounds of its jurisdiction in the particular case at hand. In the instant case, the IAP went beyond its jurisdiction in considering and making an award regarding the three union officials not mentioned in the referral instrument. The IAP was, therefore, wrong to have made a finding and award on the reinstatement of three unnamed union officials whose case was not before the IAP in the first place. The finding and the award of the IAP as regards the three union members is hereby set aside. Here in the present case, the appellant continued that only order I and the finding of the IAP at page 9 of its award that the action of the appellant in admitting ex-¬members of the respondent did not amount to poaching met the demands of the Minister’s referral instrument. The exercise of the IAP beyond this limit, which includes order II in its award, was in excess of jurisdiction, and ought to be set aside. That in re: Okupe v. Federal Board of Inland Revenue [1974] 4 SC 93, the Supreme Court at pages 116 and 117, in discussing instances when a tribunal set up by the legislature can exceed its jurisdiction, quoted with approval the views expressed by Lord Pearce in Anisminic Ltd v. Foreign Compensation Commission [1969] 2 WLR 163 at 102 as follows – Lack of jurisdiction [of a tribunal] may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make…, or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. The appellant then submitted that in consonance with the above test, Order III in the award is also null and void. The further reason was that none of the parties asked for that relief. In Nestle Nig. Plc v. NUFBTE (supra) at pp. 73G – 74B this Court decided that the IAP had no power to grant an unsolicited relief or order. This Court refused to be persuaded that such orders may be allowed under the guise of “consequential orders”. That the IAP here did not make Order III in favour of any of the parties. There was, therefore, no real or apparent jurisdiction to do so. Furthermore, that in Ekpenyong v. Nyong [1975] 2 SC 71, the learned trial Judge made unsolicited restraining orders, ordered the setting-up of a committee and suo motu stipulated its composition. On appeal, the Supreme Court in deprecating the decision of the Judge said at pp. 80 and 81 – It is trite law that the court is without the power to award to a claimant that which he did not claim…We take the view that this proposition of the law is not only good law but good sense. A court of law may award less, and not more than what the parties have claimed. A fortiori the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim. On issue 2, the appellant submitted that once the IAP made a finding that the appellant did not poach “member-workers” of the respondent and that those workers were already ex-members of the respondent at the time the trade dispute was declared, then the IAP had no jurisdiction to inquire into whether or not the ex-members of the respondent validly joined the appellant. This is because the locus standi of the respondent in this case was necessarily circumscribed by the Minister’s referral instrument; and the locus standi of the respondent was a pre-condition to the IAP assuming jurisdiction, referring to Lawal v. Benton Bay Nig. Ltd [2010] 20 NLLR (Pt. 57) 361 at 370 G – N. The appellant went on that if the respondent had no locus standi or standing to litigate whether or not its “ex-members” could validly join the appellant, it was not necessary for the IAP to consider whether, as the respondent contended, the workers’ economic activity was within the jurisdictional scope of the appellant or that the admission of such workers as the appellant’s members was ultra vires the appellant’s constitution, citing In Re: Adetona [1994] 3 NWLR (Pt. 333) 481 at 488 E – G; CCB (Nig.) Ltd v. Mbakwe [2002] 7 NWLR (Pt. 765) 158 at 175 and 176; and the dictum of Eso, JS.C. in Sodipo v. Lemminkainen Oy (1986) 1 NWLR (Pt. 15) 220 at 234 and 235 is also instructive, namely – A judge exists to determine disputes and to examine with due care and microscopic sense all matters before him in his pursuit of justice. He is there not to trap any party or set in motion what the parties have not brought before him. He is not the Grand Inquisitor envisaged by Dostoevesky in his Brothers Karamazov. To the appellant, the respondent, in view of the Minister’s referral instrument and the consequent finding of the IAP based on the referral, failed to disclose the legal standing to challenge the decision of its ex-members to join the appellant or the appellant’s action admitting such non-members of the respondent. This failure was fatal to that part of the IAP’s proceedings, questions it asked itself and orders II and III in the award. The consequence of the respondent’s failure to disclose the requisite legal standing in that part of the award complained of is that the IAP ought to have dismissed that part of the respondent’s claim, referring to Thomas v. Olufusoye [2004] 49 WRN 37 at 68. The appellant further submitted that with the finding of the IAP exonerating the appellant from the acts alleged in the Minister’s referral, and the tenor of order I in the award, there was no other extant trade dispute between the parties for the IAP to determine. That the decision of the ex-members of the respondent to join the appellant or the act of the appellant to admit them does not qualify as a trade dispute between the parties, referring to Registered Trustees of Con. Sec. Sch. v. Hon. Commissioner of Education, Kogi State [2002] 7 NLLR (Pt. 18) 222 at 242 C, H. Regarding issue 3, the appellant submitted that this issue may not arise for determination if any or all of the preceding two issues are decided in favour of the appellant. That it is settled that the Court will not entertain academic issues. However, the appellant contended that the IAP was wrong in applying Osawe v. Registrar of Trade Unions [2004] 1 NLLR (Pt. 1) 34 to this case. That the facts of the two cases are different. Whilst the present case was on the right of workers, under the Trade Unions Act, as amended in 2005, to join a trade union of their choice, Osawe’s case was about refusal to register a new trade union sought by Osawe and his associates. Although the IAP did not consider fully the argument urged on behalf of the appellant here, it's reasoning and part of its conclusion were inconsistent and liable to fallacy in logic. The appellant went on that at page 8 of the award the IAP agreed that the workers in the seven affected companies had a right to withdraw their membership of the respondent because “the right to associate or dissociate is fully guaranteed and protected under the 1999 Constitution of the Federal Republic and the Trade Unions (Amendment) Act 2005”. Further, it reasoned thus, ‘In fact, the right to associate and dissociate is consistent with the dominant provisions of the 2005 Amendment Act which has introduced the principle of “contracting-in” instead of “contracting-out”’. But at page 9 of the award, the IAP reached a conclusion that was inconsistent, namely, “the action of NUSDE in attempting to unionize the said workers...constituted an illegality as it contravened the jurisdictional scope of the trade unions and the constitution of NUSDE”. The appellant then submitted that it is difficult to draw a parallel between these separate views the IAP expressed at pages 8 and 9 of its award. If it had fully considered the argument for the appellant, perhaps its conclusion would have been different on this score. The appellant continued that the case of PERESSA v. SSACGOC [2009] 14 NLLR (Pt. 39) 306 relied upon by the respondent in its argument at the IAP was not a binding precedent in this case. The facts are different. There, the Registrar of Trade Unions had registered a change of name by the 1st defendant which enlarged the jurisdictional scope of the 1st defendant in order to accommodate workers in a sector having no trade union. The claimant challenged this in a declaratory action. The views of this Court, which the respondent relied on, were obiter. Those observations were not the reason for the Court’s decision in that case nor were they essential to the decision, as can be seen from the material facts. Further, that case and others where this Court pronounced on the 2005 Amendment to the Trade Unions Act did not consider the pivotal sections such as sections 12(4) and 24(1), on which the appellant relies. The effect of sections 12(4) and 24(1) on the Third Schedule did not appear in those cases. No such evidence as the appellant's “Annexure 2p38” was also considered. Furthermore, the appellant contended that where this Court takes the view that those cases are binding precedents here, there is the danger of perpetuating error since such precedents were laid sub silentio – having not considered crucial sections 12(4) and 24(1) and their effect on jurisdictional scope when the right of the worker to associate or dissociate is in issue. The effect of the controlling words “Notwithstanding anything to the contrary in this Act” appearing in section 12(4) have not been considered by this Court yet. If this court agrees with the Appellant that, at the workers' level, there is inconsistency between sections 12(4) and 24(1) on the one hand and Part B of the Third Schedule on the other hand this will affect the vitality of existing precedents in this court - whether persuasive or binding. According to the appellant, it seems possible, therefore, for this Court, putting into consideration a more comprehensive view of the Amendment to the Act, to preserve for the workers the new right conferred by the Amendment. This does not in any way bring about proliferation in trade unions, and section 24(1) provides every safeguard in the operation of the new right of workers. The application of jurisdictional scope ought to be restricted to trade unions seeking “virgin land” in a company and not, as in this case, to workers who have legitimately left one trade union and, on their volition, applied to join another trade union. It is submitted that the electoral college mentioned in section 24(1) will not arise if the trade unions contemplated or concerned are to be in the same jurisdictional scope. This is so because “jurisdictional scope” necessarily implies that no two trade unions could be in the same area of economic activity. The appellant then urged the Court to decide each case on its own facts and not make too wide a rule that can result in the absurd interpretation of the Amendment to the Act or to injustice, commending to the Court the test advocated by the Court of Appeal, per Aderemi, JCA (as he then was) in Cotecha Int. Ltd v. Churchgate (Nig.) Ltd [2004] 11 NWLR (Pt. 883) 128 at 142H – 143A. The appellant called on the Court to intervene and cure the error of law infecting the IAPs award and allow the appeal and grant all the reliefs sought by the appellant in the notice of appeal. In conclusion, the appellant summarized its submission as follows – 1. In its award, the IAP acted in excess of the jurisdiction conferred on it in the Minister’s referral instrument. 2. The IAP also made an order not claimed by any of the parties; and that was without jurisdiction, therefore. 3. “It also part of the award that is without jurisdiction and is a nullity, and ought to be set aside”. 4. Having made a finding in favour of the appellant on the crucial issue of fact, that the appellant did not poach members of the respondent, ¬the IAP could not legitimately inquire into the complaint of the respondent that its ex-members in the seven affected companies could not join the appellant. The respondent lacked the locus standi to make such complaint, and locus standi was the pre-condition for the IAP to also assume jurisdiction over that part of the case. 5. The IAP applied wrong precedents to the appellant’s contention that the ex-members of the respondent had the right to join the appellant despite Part B of the Third Schedule. 6. There are yet no decided cases of this Court on all fours with the present. Applying wide rules in existing cases to the specifics of the instant case will create problems – a. It will distort the interpretation of the Trade Unions Act, as amended in 2005. b. Lay down a precedent to apply to cases relying on the new sections 12(4) and 24(1) which were not considered in the previous cases. c. It will bring about injustice and perpetuate error if decisions in a general class govern specific cases, or that obiter dicta in previous cases become binding precedent on subsequent cases with their own peculiar material facts. 7. On a more comprehensive interpretation of the Trade Unions Act, as amended in 2005, it can be seen that the law maker envisaged a situation where it is legitimate for workers in a particular employer to belong to several trade unions of their choice. This promotes healthy competition among trade unions and frees the workers from tyranny. This scenario does not in any way proliferate trade unions or re¬introduce chaos in enumerating and managing trade unions. 8. A favourable answer to only issue 1 will still justify all the reliefs sought by the appellant in this appeal. We indicated earlier that the respondent did not file any written address. The Court is, therefore, left with only the submissions of the appellant in considering the merit of the appeal. The IAP at page 9 of its award had made the following award – On the main allegation of poaching levied against the 2nd party (NUSDE), the tribunal rules that while the action of (NUSDE) might not have technically amounted to poaching from SEWUN since the workers had effectively resigned membership of SEWUN at the time of the action, the action however constituted an illegality as it offended the jurisdictional scope under the existing Trade Union law as well as the constitution of NUSDE. The IAP then went on to make three orders as follows – ORDER I That the workers employed in the seven (7) companies under reference who had effectively demonstrated their intention to relinquish their membership of SEWUN be treated and regarded as ex-members of the union with effect from the date of their letter of resignation. ORDER II That the purported joining of NUSDE by the said workers is of no effect whatsoever and amounts to an illegality since it is contrary to the jurisdictional scope prescribed under the existing Trade Union Law. ORDER III That all the check-off dues deducted from the said workers should continue to be held in the suspense account by management of the seven (7) companies pending further determination by the workers. It is this award and orders that the appellant objected to. The case of the appellant is that the IAP’s mandate in terms of the referral instrument from the Minister of Labour is to inquire into one issue only, namely, the question of poaching of members of SEWUN in the seven companies listed in the referral. But in deciding the matter before it, the IAP had at pages 8 – 9 of its award framed five issues, which are – 1. Whether the Trade Unions (Amendment) Act 2005 especially section 12(4), introduced by means of section 2 of the Amendment abolished Part B of the Third Schedule containing the jurisdictional scope in the principal legislation? In answer, the IAP held that in its opinion, Part B of the Third Schedule containing the jurisdictional scope survived as it was not directly mentioned as part of the provisions repealed by the new Trade Union legislation in 2005. Citing Asim (Nig.) Ltd v. LBRB Dev. Authority [2002] 8 NWLR (Pt. 769) 349 at 354, the IAP held that there cannot be implied repeal/amendment of legislation; any amendment/repeal must be direct and should not be a matter for speculation. 2. Whether the workers employed in the seven companies in question can join NUSDE even though the area of economic activity of their employer falls clearly within steel and engineering group. Here the IAP opined that the answer is in the negative as such frolic will create chaos in aid of the mischief which the jurisdictional scope created by law had cured by means of the Trade Unions (Amendment) Act No. 4 and the Trade Unions (Amendment) Act No. 1 of 1999. 3. Whether the workers employed in the seven companies can resign from membership of SEWUN individually or collectively. Here the IAP opined that the answer is in the affirmative as the right to associate or dissociate is fully guaranteed and protected under the 1999 Constitution and the Trade Unions (Amendment) Act 2005. That in fact, the right to associate and dissociate is consistent with the dominant provisions of the 2005 Amendment which has introduced the principle of “contracting-in” instead of “contracting-out”. 4. Whether the workers in the seven companies effectively resigned their membership of SEWUN. Here the IAP opined that the said workers had effectively demonstrated their intention to resign their membership of SEWUN. That there was evidence that they visited the NLC and the Registrar of Trade Unions seeking advice on how to leave the union; they also wrote and signed individual letters to this effect even though SEWUN did not acknowledge receipt. 5. Whether the action of NUSDE in attempting to organize the workers amount to poaching. Here the IAP held that there is evidence that NUSDE was approached by the workers. That at that time the workers had already resigned their membership of SEWUN. Therefore, while the action of NUSDE in attempting to unionize the said workers may not technically amount to poaching, it constituted an illegality as it contravened the jurisdictional scope under the Trade Unions Act and the constitution of NUSDE. The task before this Court is to determine whether in all of this, the IAP went beyond their brief. To start with, the terms of reference to this Court by the Minister of Labour which we reproduced earlier in this judgment are the same terms of reference that the Minister sent to the IAP. We agree with the appellant that in all of the 5 terms of reference, one thing ran through all: “poaching of members-workers of SEWUN”. The difference is that the poaching relates to seven different companies listed therein. The Chambers 21st Century Dictionary, Revised Edition defines ‘poach’ to mean “to steal (ideas, etc); to lure away (personnel at a rival business, etc) to work for one”. In the context of trade union law, therefore, ‘poaching’ would mean a trade union secretly or dishonestly persuading members from another trade union to join them and become their members. Based on its findings, the IAP ruled at page 9 of its award that “while the action of (NUSDE) might not have technically amounted to poaching from SEWUN since the workers had effectively resigned membership of SEWUN at the time of the action, the action however constituted an illegality as it offended the jurisdictional scope under the existing Trade Union law as well as the constitution of NUSDE”. But is the finding and award of the IAP supported by the evidence led before? This remains the question. The first issue to be resolved is whether there is any evidence of poaching of the members of SEWUN by NUSDE. Given the definition of poaching given above, we searched through the evidence before the IAP and its record of proceeding and we could not find any evidence showing that NUSDE went out of its way to secretly or dishonestly persuade members of SEWUN to join and become members of NUSDE. Since there was no such evidence, it means that NUSDE cannot be accused of poaching the members of SEWUN. Ordinarily, the IAP having answered that technically there was no poaching, ought to have stopped at that. But it went on given that the terms of reference from the Minister of Labour were prefaced by the words, “[t]o enquire into the trade dispute existing between the Steel and Engineering Workers Union of Nigeria (SEWUN) and the National Union of Shop and Distributive Employees (NUSDE)….” Now the appellant argued that the referral does not relate to a trade dispute and so the IAP had no jurisdiction to entertain it; and that even if it were a trade dispute, the IAP went beyond their mandate. In the first, place except for union election matters and the interpretation of union constitution, this Court had always ruled that inter-union disputes must go through the processes of Part I of the Trade Disputes Act, which processes include arbitration before the IAP. So the argument of the appellant that the IAP wrongly assumed jurisdiction cannot be tenable and so we reject it. The IAP was, therefore, right to have heard the matter; and we so find and rule. The next issue is, when the IAP held that there was technically no poaching, it found that the workers in question had effectively demonstrated their intention to resign their membership of SEWUN; there was evidence that they visited the NLC and the Registrar of Trade Unions seeking advice on how to leave the union. The IAP, however, in its actual award would go on to rule that “the workers had effectively resigned membership of SEWUN at the time of the action….” A comparison of the finding and the award in terms of these two statements show that the IAP was not consistent. In one breath, the IAP is saying that the workers demonstrated their intention to resign, and in another breath it is saying that the workers effectively resigned their membership of SEWUN. To add to the confusion of thought, the IAP had framed issue 3 at page 8 of its award thus: “Can the workers employed in the seven companies resign from membership of SEWUN individually or collectively?” The IAP then opined that the answer is in the affirmative as the right to associate or dissociate is fully guaranteed and protected under the 1999 Constitution and the Trade Unions (Amendment) Act 2005. Now, we venture to ask: is the answer in the affirmative in terms of resigning individually or collectively? We are at a loss as to what in fact is the answer of the IAP regarding issue 3. Further confusing is ORDER III of the award, which states “[t]hat all the check-off dues deducted from the said workers should continue to be held in the suspense account by management of the seven (7) companies pending further determination by the workers”. How is the “further determination of the workers” to be ascertained or determined? Lastly confusing is the statement of the IAP that in fact, the right to associate and dissociate is consistent with the dominant provisions of the 2005 Amendment which has introduced the principle of “contracting-in” instead of “contracting-out”. The IAP gave no hint as to how it arrived at this conclusive viewpoint. It did not elaborate in terms of an analysis of the provisions of the law especially the Trade Unions Act in order to show how the 2005 Amendment to the Trade Unions Act can be said to have yielded to the drastic conclusion that seems to suggest that the principle of “contracting out” is to be differently understood today than it was before the 2005 Amendment to the Trade Unions Act. This last point of course raises the question whether the 2005 Amendment to the Trade Unions Act has altered the position of the law regarding trade union membership any differently today than it was prior to the 2005 Amendment. We shall come to this point shortly. In the meantime, we took time once again to look through the mass of evidence before the Court and what we found cannot sustain the findings of the IAP in terms of the question whether the workers in fact resigned from SEWUN or not. We already showed how the IAP spoke from both sides of the mouth – in one breath that the workers demonstrated their intention to resign, in another breath that they effectively resigned. From the evidence before the Court what we found is that four members of SEWUN, Universal Steel Ltd Branch, who were appointed into the caretaker committee set up when the main Executive Council was sacked, wrote to the General Secretary of SEWUN declining to be members of the caretaker committee. See pages 170 – 173 of the case file. This certainly is not, and cannot be, evidence of resignation of membership of SEWUN. The closest evidence showing resignation is a letter dated 1st April 2005 (see page 200 of the case file) signed by four persons of Universal Steel Workers Union and addressed to the Personal Manager titled, “Declaration of Membership of National Union of Shop and Distribution Employees by Workers of Universal Steel Limited”. The letter then states that the entire workers of Universal Steel Limited, Ikeja, Lagos State declare voluntarily their membership of NUSDE as indicated by their signatures below, and they authorized the Management of Universal Steel Limited, Ikeja to deduct 3% from the wages/salaries of each and every one of them every month as union dues with effect from 1st April 2005 and pay same to NUSDE at 3, Olu-Osifeso Close, Onike, Yaba, Lagos. If this is the evidence of the workers effectively resigning their membership of SEWUN, then it falls short of the law. We agree with the IAP that the freedom to organize or associate is generally thought to include an equal, a negative right at that, freedom not to organize or associate. This Court in Corporate Affairs Commission v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees [2004] 1 NLLR (Pt. 1) 1 at 32 held that “the freedom to associate under section 40 of the 1999 Constitution certainly includes the freedom to disassociate or not to associate”. And in Habu v. NUT, Taraba State [2005] 4 FWLR (Pt. 283) 646, it was held that where a plaintiff contracted out of the check-off dues system, it is for the trial Court to determine whether thereby the plaintiff can be forced or compelled to continue to be a member of the trade union he is contracting out from and whether the continuation of the deduction of check-off dues from his salaries and wages cannot be stopped. The question is whether the workers in the instant case can be said to have resigned their membership of SEWUN. The law is that workers who are members of a union and who are desirous of resigning their membership of that union can only resign individually and in writing. These two requirements must be met separately if the resignation is to be effective. The so-called declaration of membership for NUSDE, which the letter of 1st April 2005 signifies does not meet the first requirement of individual resignation. Collective resignation is not permitted and so is invalid. What all of this means is that there being no effective resignation of the workers from SEWUN, they remain bona fide members of SEWUN. This means that the check-off dues which the IAP found to be held in a suspense account must be released forthwith by the seven companies named in the terms of reference to SEWUN; and we so find and hold. The appellant made much of the Trade Unions (Amendment) Act 2005 and referred to sections 12(4) and 24(1) of the Trade Unions Act, as amended. Section 24(1) dealing with prohibitions of actions in tort against trade unions provides that an action against a trade union (whether of workers or employers) in respect of any tortious act alleged to have been committed by or on behalf of the trade union in contemplation of or in furtherance of a trade dispute shall not be entertained by any court in Nigeria. What use this provision has to the case of the appellant remains a mystery as throughout its submissions, both at the IAP and this Court, the appellant did not make out how the provision helps its case. Section 12 of the Trade Unions Act, as amended, has as its heading “membership of trade union not to be restricted on discriminatory grounds”. In this context it may be useful to state what the whole section says, which is – (1) A person who is otherwise eligible for membership of a particular trade union shall not 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. (2) If any person is refused admission to membership of a trade union in contravention of subsection (1) of this section, the union and every official thereof shall be guilty of an offence against this Act. (3) If any provision in the rules of a trade union is inconsistent with subsection (1) of this section, that provision shall, to the extent of the inconsistency, be void. (4) Notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimised for refusing to join or remain a member. The argument of the appellant is that coupled with section 40 of the 1999 Constitution, as amended, section 12(4) must be read and interpreted as giving an unfettered freedom to workers to join any union of their choice. In this sense, the workers who exhibited their intention to join NUSDE from SEWUN must be allowed to so without any hindrance. The first problem with the argument of the appellant is that it is citing section 12(4) out of context. That provision must be understood within the context of the whole section, which is that it is a provision given under the context of “membership of trade union not to be restricted on discriminatory grounds”. It is not a provision that has given an unfettered freedom to workers. In stating that “membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimised for refusing to join or remain a member” section 12(4) merely restates what is already the law. Section 9(6)(a) and (b) of the Labour Act Cap. L1 LFN 2004, for instance, provides that – No contract shall – (a) make it a condition of employment that a worker shall or shall not join a trade union or shall or shall not relinquish membership of a trade union; or (b) cause the dismissal of, or otherwise prejudice, a worker – (i) by reason of trade union membership; or (ii) because of trade union activities outside working hours or, with the consent of the employer, within working hours; or (iii) by reason of the fact that he has lost or been deprived of membership of a trade union or has refused or been unable to become, or for any other reason is not, a member of a trade union. What this means is that before 2005, membership of trade unions was voluntary, incorporating as it were the right to associate or disassociate as the case may be. For junior staff, the rule was that membership was deemed with a right to “opt out”, while for senior staff they were not deemed to be members and so had to voluntarily “opt in”. In other words, junior staff could only “contract out” of trade union membership, while senior staff could only “contract into” to be members. Has the 2005 Amendment to the Trade Unions Act changed these principles? This remains the question. The argument of the appellant is that it does. Let us restate the key provision of section 12(4) which is that “membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimised for refusing to join or remain a member”. This provision cannot be understood in isolation; and this leads to the second problem with the argument of the appellant. The provision must be considered alongside other provisions of the Trade Unions Act as well as the 1999 Constitution. To the take the 1999 Constitution, as amended, section 40, in providing for the right to peaceful assembly and association, states that “[e]very 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”. The qualification here is that the trade union to be formed or joined has to be one “for the protection of [the worker’s] interest”. The case of Sea Trucks (Nig.) Ltd v. Pyne [1999] 6 NWLR (Pt. 607) 514 was quite emphatic in holding that the phrase “for the protection of his interest” does not give a citizen unrestrained freedom to join any trade union as a person proposing to join a trade union must show it protects his interest. And the question that naturally arises in the instant case is: workers who are or had been members of SEWUN, what interest do they have in NUSDE? Neither the appellant nor the IAP showed or indicated what the affected workers’ interest in NUSDE is. In PERESSA v. SSACGOC [2009] 14 NLLR (Pt. 39) 306, a case decided on February 11, 2009 i.e. some 4 years after the 2005 Amendment to the Trade Unions Act was enacted, this Court held as follows – The 2005 Trade Unions (Amendment) Act did not repeal, amend or substitute any of the provisions of the Third Schedule Parts A, B and C of the Trade Unions Act Cap. T14 LFN 2004. It was left intact. On the issue of voluntarism, the right of a worker to decide which union to belong to is not absolute but must be exercised within the limits of the Trade Unions Act Cap. T14 LFN 2004. Voluntarism and the freedom to choose which union to belong to is limited to the unions empowered to operate within a clearly defined jurisdictional scope. Voluntarism must exist within and not outside all existing relevant laws and regulations. See NCSU v. ASCSN [2004] 1 NLLR (Pt. 3) 429 and Osawe v. Registrar of Trade Unions, supra. Even the fundamental rights guaranteed in Chapter IV of the 1999 Constitution are not absolute. Section 45(1)(a) and (b) provides for derogation from these rights. We, therefore, hold that the jurisdictional scope as contained in the Third Schedule Parts A, B and C to the Trade Unions Act is still applicable to all the trade unions. The right to choose which union to belong to is a qualified right. This is the viewpoint of this Court that appellant branded as obiter. We only need to remind counsel to the appellant here that while by Dr Rasaki Oshodi v. Yisa Oseni Eyifunmi [2000] 3 NSCQR 320; [2000] 7 SC (Pt. II) 145, it is common place that an obiter dictum is an expression of opinion made in giving a judgment by the judge but not necessary to his decision and accordingly cannot form part of the ratio decidendi of the judgment, an obiter dictum may, however, be very weighty taking into consideration the judicial esteem and respectability in which the maker is held. If the judge is a luminary of high-standing, his obiter dictum may in due course crystallize to good law. There is nothing in principle that says that an obiter yesterday cannot be ratio today. And counsel may wish to further note that PERESSA v. SSACGOC was actually decided by a panel of five Judges of this Court. We now turn to other provisions of the Trade Unions Act itself. Section 31 deals with admission of further trade unions to membership of registered federation. In subsection (1), it provides that: Subject to this section, a trade union may become a member of a registered Federation of Trade Unions, whether or not members of the trade union wishing to join the registered Federation of Trade Unions are employed in trades, occupations or industries which are similar to the trades, occupations or industries of the trade unions which formed the registered federation which the trade union seeks to join. A look at the italicized part of the provision shows that in terms of admission of a trade union to membership of a registered Federation of Trade Unions it does not matter whether or not the members of the joining trade union are employed in trades, occupations or industries which are similar to the trades, occupations or industries of the trade unions which formed the registered federation. The point is that there is a specific provision in this regard where the commonality of interest in terms of the area of economic activity is excluded. There is no such provision throughout the Trade Unions Act regarding membership of trade unions by individual workers. Secondly, section 35, which deals with powers of the Federation of Trade Unions and application of certain provisions of Part I of the Act, provides in subsection (1)(a) and (b) that a Federation of Trade Unions may be registered by the Registrar if its main objective is to represent the interest of employees and it is made up of 12 or more trade unions none of which shall have been a member of another registered Federation of Trade Unions. Section 35(1)(b) is quite emphatic that a member of a registered Federation of Trade Unions cannot opt out to form another Federation of Trade Unions. Now, if the 2005 Amendment to the Trade Unions Act gave unfettered freedom to workers, would this be the case? We do not think so. On the whole, and for the reasons given, we hold, and thereby vary the IAP award in the following terms – 1. There is no evidence before the Court of poaching by NUSDE of members of SEWUN in the seven companies listed in the terms of reference to this Court by the Minister of Labour. 2. There is equally no evidence before the Court to show or indicate that the workers in issue who were said to have voluntarily joined NUSDE from SEWUN validly joined NUSDE. As it is, the said workers remain members of SEWUN. 3. In consequence of our holding in paragraph 2, the check-off dues said to be held in a suspense account by the seven companies listed in the terms of reference to this Court by the Minister of Labour is to be released forthwith to SEWUN as the workers in question remain validly as members of SEWUN. 4. The affected workers, however, have the right to opt out (individually and in writing) of SEWUN but cannot join NUSDE as NUSDE does not represent their interest. Where the affected workers opt out of SEWUN by ceasing to be members of SEWUN, they may have to remain union-less unless they can find some other union that really represents their interest. 5. We award no cost. Judgment is entered accordingly. ………….………………………….. Hon. Justice B. B. Kanyip Presiding Judge ………………………………………. ...…………………………………. Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge