JUDGMENT

Eusoffe Abdoolcader J:

This appeal involves the question of the validity vel non of the 1st respondent's determination of a trade union recognition dispute between the appellant and the 2nd respondent when he decided on 12 July 1977 that recognition be accorded to the latter in the exercise of his powers under s. 9(5) of the Industrial Relations Act 1967 as it stood before its amendment on 15 September 1980, and all references to s. 9 in this judgment will accordingly be to that provision of the Industrial Relations Act prior to the 1980 amendment. We should perhaps add that with the amendment of s. 9, the Industrial Relations Regulations 1980 were enacted and also took effect on 15 September 1980, providing inter alia in respect of a claim for recognition by a trade union for the particulars and information that the Director-General of Industrial Relations may require to be furnished to him but these regulations do not apply to the present proceedings and do not therefore concern us.

On 3 December 1975 the 2nd respondent made a claim for recognition by the appellant under s. 9(2) in respect of its employees but the appellant refused on the ground that a majority of its employees were not members of the 2nd respondent and suggested a membership check by the Director of Industrial Relations in the presence of both parties to which the 2nd respondent objected. The appellant then furnished the Director of Industrial Relations on request with a list of its employees, and by a letter dated 2 September 1976 the Director-General of Industrial Relations informed the appellant that a membership check carried out by the Registrar of Trade Unions showed that the 2nd respondent only had 43.2 per cent of the appellant's employees as its members. The appellant replied on 24 September 1976 that it was not in the circumstances prepared to accord recognition to the 2nd respondent. The matter rested there until the 2nd respondent wrote once again to the appellant on 8 January 1977 making a second claim for recognition which is the pertinent subject-matter of this appeal.

We pause here to dispose of a point taken on behalf of the appellant in reliance on the provisions of s. 12 of the Industrial Relations Act which, briefly, prohibit any further claim for recognition where the 1st respondent has decided against according recognition to a trade union until three months have elapsed after the decision, and the appellant's contention in this regard is to the effect that as the 1st respondent had made no decision as such in respect of the first claim for recognition by the 2nd respondent in December 1975, the second claim for recognition was precluded and accordingly invalid. The short and simple answer to this lies in the uncontroverted affidavits of the 1st respondent, the Deputy Director-General of Industrial Relations and the general secretary of the 2nd respondent which disclose that the first claim for recognition had been resolved through the offices of the Director-General of Industrial Relations as the 2nd respondent did not dispute the results of the membership check then carried out by the Registrar of Trade Unions and had also accepted the decision of the appellant not to accord recognition, and the 1st respondent was not therefore required to make any decision under s. 9(5) and he did not accordingly do so.

Section 9(5) requires the 1st respondent to take such steps or make such inquiries as may be necessary or expedient to resolve the matter or to give a decision thereon upon receipt of a report under subsection (4). The report under s. 9(4) is a prerequisite to the 1st respondent taking cognizance and assuming jurisdiction in the matter and he has the alternative under s. 9(5) of either taking steps or making inquiries (which by s. 9(6) include such action taken or made by or under the direction of the Director-General of Industrial Relations) to resolve the matter or to give a decision thereon. Section 12 does not in the circumst