HASSAN vs. INDUSTRIAL AND COMMERCIAL WORKERS UNION [2001-2002] 2 GLR 214

CASE REFERRED TO

(1) Attorney-General v Birmingham, Tame, and Rea District Drainage Board [1912] AC 788, HL.

ACTION by the plaintiffs for, inter alia, a declaration that the 1991 and the 1995 constitutions of the first defendant—the Industrial and Commercial Workers Union of the Trade Unions Congress—were of no legal effect since they had not been registered as required by the law. The facts are sufficiently set out in the ruling.

M Dzokoto for S Okudzeto for the plaintiffs.

Ken Senaya for S A X Tsegah for the first defendant.

Dick K Anyadi for the second and third defendants.

Kusi-Appouh J. On 29 October 1999 the plaintiffs herein issued out a writ against the defendants herein for the following reliefs:

“(a) A declaration that neither the 1991 nor 1995 constitution, rules and bye-laws or the first defendant is of any legal effect, same, not having been registered in violation of law.

(b) An order declaring as illegal and nullifying the several acts specified under paragraph (10) of Plaintiff’s accompanying statement of claim.

(c) An order restraining the defendant from using either the said 1991 or 1995 constitution, rules and bye-laws in running and conducting the affairs of the first defendant, until same have been duly registered in accordance with law.

(d) Further orders.”

On 18 January 2000 the plaintiff herein amended the indorsement on the writ of summons by adding the following reliefs after

[p.216] of [2001-2002] 2 GLR 214 the court had granted his motion for leave to amend the said indorsement and pleadings under Order 2b, r 1 and 6 of the High Court (Civil Procedure) Rules, 1954 (LN 140A).

The additional reliefs and the amendment of the pleadings were as follows, namely:

“1 (e) An order restraining the second and third defendants herein from holding themselves out and acting as the national chairman and general secretary respectively of the first defendant-union.

(f) An order restraining the national executive council (NEC) as presently constituted under either the so-called 1991 or 1995 constitution aforesaid from exercising any of the governing functions, powers and authority of the first defendant-union or otherwise conducting its business.

(2) By replacing the word “committee” in paragraph (10)(iii) of the plaintiff’s statement of claim with the word “council.”

On 26 January 2000 the following issues were set down as issues in controversy between the parties which needed to be resolved. These issues were the following:

“(1) Whether or not there is a formal system of registration governing either a partial or complete alteration or amendment of the constitution of registered trade unions.

(2) Whether or not a certificate of registration is required to be issued upon registration of a partial or complete alteration or amendment of the constitution or a registered trade union.

(3) Whether or not the said 1991 constitution or 1995 constitution has been registered.

(4) Whether or not non-registration of a partial or complete alteration or amendment of the constitution of a registered trade union renders such a constitution inoperative and of no effect.

(5) Whether or not the plaintiffs are entitled to their claims.”

The above mentioned issues were to be tried by legal arguments or [p.217] of [2001-2002] 2 GLR 214 submissions. The gist of counsel for plaintiff’s argument as averred in the statement of claim is that the 1991 and the 1995 constitution which sought to amend a previous constitution of the defendant union has not been delivered to the Registrar of Trade Unions for registration, and have also not been issued with a certificate of registration. Counsel further contended that for failing to register the said amendment, all acts purported to have been taken under either the 1991 or 1995 constitution are without any effect. Counsel attacked the defence filed, and submitted, inter alia, that the governing provisions of the Trade Unions Ordinance Cap, 91 (1951 Rev) are the provisions relevant for the establishment and running of trade unions like the defendants herein. He referred to section 29(1) of Cap 91 and also to section 30(2) of Cap 91 which according to him states that: “2. Unless and until amended, varied or revoked by the Governor in Council the rules set out in the Third Schedule hereto shall have effect as if they had been duly made under this section.”

Counsel further contended that rules 5, 6, 7, 8, and 9 of the Third Schedule to Cap 91 completely debunks the defendants’ claim that there is no formal systems of registration for rules of registered trade unions, and that no certificate of registration is required. He referred the court to rule 5 of the Third Schedule of Cap 91. According to him, section 29 of Cap 91 imposes a statutory requirement or obligation for registration, which is strictly mandatory, of the constitution, rules and bye-laws of every registered trade union. Thus by obvious and necessary implication, unregistered constitution, rules and bye-laws of a registered trade union shall be ineffectual in law. Counsel further contended that as a further consequence of non-registration, anything sought to be done by virtue of such unregistered constitution, rules and bye-laws shall have absolutely no effect in law, and therefore all conferences purported to have been convened or held as well as elections and appointments purported to have been conducted as such have no effect in law and are a nullity. Counsel finally referred the court to the case of Attorney-General v Birmingham, Tame and Rea District Drainage Board [1912] AC 788, HL.

Learned counsel for the defendant-respondent opposed the arguments and contended, inter alia, that a registered union does no need to register its rules and bye laws all over again. What the law

[p.218] of [2001-2002] 2 GLR 214 requires is that if there is any alteration or amendment then that alteration or amendment must be registered before it can become effective. He referred the court to Cap 91, 29(1) and (2). He further contended that if the alteration or amendment had not been registered, the plaintiffs’ remedy was to have applied to the court to have the alteration or amendment expunged.

Section 29(1) and (2) of Cap 91 provides as follows:

“29. (1) Every alteration of the rules of a registered trade union shall be registered with the Registrar and shall take effect from the date of registration unless some later date is specified in the rules.

(2) The rules of a registered trade union shall not be altered so that they cease to contain provisions in respect of the several matters in the Second Schedule.”

It is not disputed that the rules and bye-laws of the trade unions have to be registered as provided by the above quoted section. What is left to be done is the registration of any alteration or amendments whenever they are made. The combined effect of section 29(1) and (2) of Cap 91 is that, it is mandatory for any alteration or amendment to be registered, and my understanding is that failure to register amounts to the amendment or alteration being of no effect. I find that the rules and bye-laws of a registered trade union need not be registered all over again whenever an amendment or an alteration is made. It is only what has been altered or amended that need to be registered. Failure to register before incorporation, to me does not amount to the sweeping consequences that counsel for the plaintiff herein is attaching to such omission. It is the amendments and alterations that have not been registered that should be brought before the court to be expunged. The constitution, rules and bye-laws have already been registered, and it is my considered opinion that failure to register any alteration or amendments does not make the whole document ineffective.

It is my view that unless and until the plaintiff can point out the alterations and amendments that have not been registered, he cannot contend that as a consequence of non-registration of the rules and bye laws, all conferences purported to have been convened or held, as well as elections and appointments purported to have been conducted have no effect in law and are a nullity. It is therefore my

[p.219] of [2001-2002] 2 GLR 214 view that the reliefs endorsed on the writ of summons cannot be granted on the basis of the outcome of the legal arguments. They are therefore refused. Costs of ¢2 million to the defendants.

Application dismissed.

E K D-O