Justice Nelson Ogbuanya of the National Industrial Court (NIC), Port-Harcourt Division, has held that the Corporate Affairs Commission (CAC) by extant laws, lacks the power to register organisations under Incorporated Trustee, which has aims and objectives of a Trade Union.

The court made the decision while delivering Judgment in a suit marked 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.

The court clarifies that the registration of Incorporated Trustee though falls in the category of organisations reserved for CAC for registration under the Companies and Allied Matters Act (CAMA), and registration of Trade Unions reserved for the Trade Union Registrar under the Trade Unions Act,

Justice Ogbuanya held that neither the CAC nor the Trade Union Registrar while carrying on statutory function under CAMA or Trade Unions Act, can register an organisation not falling appropriately under its statutory mandate, and so, the CAC does not have the legal power to accept and register organisation as Incorporated Trustee, which by its disclosed aims and 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.

The claimant in its statement of facts have argued that some of its members led by the 6th defendant broke off from them being in its umbrella union of maritime sector, and went ahead to register another Association with the CAC, which issued it a Certificate of Incorporation in its name, Incorporated Trustees of Freight Forwarders Transport Association, which aims and objectives are in conflict with the trade union activities of the Maritime Union.

The court in its decision dismissed the objection on jurisdiction as grossly misconceived by counsel for the defendants. Among the decisions in the judgment on 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 laws regulating registration of trade unions and those of incorporated trustees, particularly the provisions of Sections 823(1) and 825 (1)(b) CAMA 2020.

Those sections deal 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 also 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”, portray it as a trade union.

The judge said such trade union is “basically a workplace labour-welfare-oriented organisation, recognised and registered by the Trade Union Registrar pursuant to the Trade Unions Act, with its principal role being to cater for welfare and interests of designated category of workers within the specified sector.”

The court held the view that an association with such membership and aims and 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’s union, which resulted in the clash leading to the fracas at the Onne port, which was only quelled by police intervention, to restore peace and harmony.

The court also 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 containerised 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 organisation 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 January 17, 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’s union’s office, and N1 million cost in favour of the claimant.

(The Guardian)

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