The Federal Government Of Nigeria Anor v Nigeria Labour Congress (nlc) Anor
| Judge | Hon. Justice B. B. Kanyip |
| Judgment Date | 15 July 2016 |
| Respondent | Nigeria Labour Congress (nlc) Anor |
| Appellant | The Federal Government Of Nigeria Anor |
| Docket Number | NICN/ABJ/179/2016 |
| Counsel | <p class="MsoNormal" style="text-align:justify">Dayo Apata (Director Civil |
| Court | National Industrial Court (Nigeria) |
On 16th May 2016, the
claimants took up an originating summons against the defendants. The
originating summons is brought pursuant to Order 3 Rule 5A of the National
Industrial Court (NIC) Rules 2007, as amended in 2012, and section 254C of the
1999 Constitution, as amended. By the originating summons, the claimants are
praying for the determination of the following questions –
1. Whether
by virtue of the provisions of section 48 of the Trade Disputes Act and the
decision of the Supreme Court in the case of NUEE v. BPE, there is a trade dispute between the claimants and the
defendants that should warrant the threat of strike by the defendants.
2. Whether
in view of section 5(1)(a) of the 1999 Constitution, sections 1(3), 23
Petroleum Product Pricing Regulatory Agency (Establishment etc.) Act, and
section 6(1) Petroleum Act, the President acting through the Minister of State
for Petroleum can give policy directives as regards the functions of the PPPRA.
3. Alternatively,
assuming but not conceding that there exist a trade dispute between the
claimants and the defendants, whether the defendants have fulfilled all conditions
for embarking on industrial strike.
By question 1, the claimants seek
from this Court an answer to the question whether there is a trade dispute
between the parties to warrant the threat of strike by the defendants. The
claimants relied on section 48 (the definition section) of the TDA and NUEE v. BPE. In referring to section 48
of the TDA, the claimants placed reliance on the definition of the terms,
“trade dispute” and “strike” contained therein. The claimants’ argument here is
that there is no trade dispute between the parties to warrant a threat of
strike. The term “trade dispute” is a term of art, defined in its composite
state by section 48 of the TDA as “any dispute between employers and workers or
between workers and workers, which is connected with the employment or
non-employment, or the terms of employment and physical conditions of work of
any person”. Going by this definition, is a dispute over the increase in the
price of petrol one that is a trade dispute? I do not think so. It is in this
sense that the claimants placed reliance on NUEE
v. BPE, which held that a dispute over privatization is not a trade
dispute. My finding, therefore, is that a dispute over the increase of the
price of petrol is not a trade dispute. But the question remains whether a
dispute over the increase in the price of petrol (even though not a trade
dispute) can warrant a strike. While the claimants think not, the defendants
think so.
Questions 1 and 3 of the
originating summons as framed suggest that the law in Nigeria is that only when
there is a trade dispute would the right to go on strike arise. Here, the
assumption of the claimants is that the right to strike is hinged on the
existence of a trade dispute. The specific argument of the claimants even here
is that NUEE v. BPE held that the
desire of the Federal Government to privatize NEPA does not constitute a trade
dispute as to justify a strike action by virtue of the TDA. The problem here is
that the claimants did not, however, tell this Court whether the Supreme Court
said that only a trade dispute can
justify a strike. Alternatively put, the claimants did not tell this Court that
The defendants, for varying
reasons, believe that this Court has no jurisdiction over this suit. Assuming,
however, that this Court has jurisdiction, the 1st defendant’s case
is that following the pronouncement by the Minister of State for Petroleum on 15th
March 2016 that fuel subsidy has been removed and that the refineries owned by
the 1st claimant were working at full capacity, the defendants were
rather surprise to be informed that the Federal Government had decided to
increase the pump price of PMS from N86.50 to N145 per litre. That in reaction
to the decision to increase the pump price after a failed meeting with the
Federal Government, the defendants decided to mobilize its members across the
country for a nationwide strike bid to commence on Wednesday 19th
May 2016. That instead of responding to the demands of the defendants, the claimants
filed this suit seeking declaratory and injunctive reliefs to prevent the defendants
from embarking on strike. Thereafter, that the claimants filed two motions for
interim and interlocutory injunctions. That while the defendants were busy
attending meeting to resolve lingering issues, the claimants were before this Court
for an order for interim injunction which was granted on 17th May
2016.
Additionally, the 1st
defendant contended that the deregulation of the downstream sector upon which
the policy to increase fuel prices is hinged, has already been declared illegal
in Bamidele Aturu v. AG of the Federation
[2015] 1 NHRLR (Pt. 1) 73, which decision has not been appealed against.
The 2nd defendant’s
case on the other hand is that aside from the fact that this Court has no
jurisdiction over this case, the 2nd defendant called off the
planned strike following the outcome of the stakeholders’ meeting; as such the
case is merely academic.
As agreed amongst the parties,
the preliminary objections of the defendants and the originating summons of the
claimant were argued together to enable the Court write just one judgment.
Reaction to the 1st Defendant’s
Objection
In reacting to the 1st defendant’s preliminary objection, the
claimants adopted the issues framed by the 1st defendant, that is –
1.
Whether
deregulation of the downstream sector of the petroleum ministry is not illegal
and unconstitutional by virtue of the judgment of the Federal High Court in Bamidele Aturu v. Attorney General of the
Federation & ors.
2.
Whether
the subject matter of this suit does not constitute a gross abuse of court process.
3.
Whether
the failure of the claimants to comply with the provision of section 6 of the
Trade Disputes Act before instituting this action does not deprive this Court
of its jurisdiction.
Regarding issue 1, the claimants first contended that the above
issues as raised by the 1st defendant suggest that the Court in Bamidele Aturu v. Attorney General of the
Federation has decided that the alleged deregulation of the down-stream
sector of petroleum ministry by the claimants is illegal. That this position is
completely out of line as it relates to the questions the claimants have
brought for the determination of this Court. That the claims of the claimants
before this Court relate to the legality of the proposed threatened strike. More
so, that it is an established principle of law that a preliminary objection in
a suit is generally aimed at terminating the proceedings at that stage of the
proceedings and must be established on documents before the Court, citing Oyakhire & ors v. Nekajeh [2000]
this application at this point is irritating as it is intended to justify their
disobedience to court judgment. That it is, therefore, an affront on our
administration of justice; as such the present action constitutes an abuse of
court process and should be dismissed, citing Ogoejeofo v Ogoejeofo [2006] 3 NWLR (Pt. 996) 205. The 1st
defendant then urged the Court to resolve this issue in favour of the
defendants.
Regarding issue 3, the 1st
defendant contended that the claimants failed to comply with the provision of
section 6 of the Trade Disputes Act (TDA), which provides as follows –
Where any trade
dispute exist or is apprehended and it appears to the Minister that the dispute
is one to which persons employed in any essential service are a party or might
become a party, the Minister may, whether or not a report in respect of the dispute
has been received by him under section 5 of the Trade Disputes Act, refer the
dispute for the settlement of the Industrial Arbitration Panel established
under section 8 of the Trade Disputes Act, and the provision of that section
(as well as any other relevant provision of the Trade Disputes Act) shall apply
in respect of the dispute to the same extent as they apply to any trade dispute
referred to the Industrial Arbitration Panel under the Trade Disputes Act.
To the 1st defendant,
the claimants have not complied with the aforesaid provision of the law and
their failure to comply divests this Court of its jurisdiction to hear and
determine this matter. That it is settled law that the jurisdiction of a Court
is determinable from the writ of summons and statement of claim, referring to Amaonwu v. Ahaotu [1998] NWLR (Pt. 566) 454
at 465, Madukolu v. Nkemdilim [1962]
2 SCNLR and Western Steel Ltd v. Iron &
Steel Workers Union of Nig (No. 2) [1987] 1 NWLR (Pt. 49) 284. That
a cursory look at the reliefs of the claimant in their originating summons will
reveal that they are reliefs on issues that border on the welfare of Nigerian
workers which the respondents sworn to protect.
The 1st defendant then
referred to the definition of trade dispute in section 48 of the Trade Disputes,
which is –
any dispute between employers and workers or
between workers and workers, which is connected with the employment or
non-employment, or the terms of employment and physical conditions of work of
any person.
That in Apena v. UPPPP [2003] 8 NWLR (Pt. 822) 426, the Court categorical
stated that in essence, before a dispute would qualify as a trade dispute, it
must be –
a) A
dispute between a worker and worker; or
b) A
dispute between a worker and his trade union; or
c) A
dispute having some industrial colouration.
It is the submission of the 1st
defendant that the instant dispute does have industrial colouration and falls
within the definition of trade dispute, thus the preconditions in Part I of the
that where the law imposes conditions precedent for doing an act such
conditions must be fulfilled before doing such an act, referring to Madukolu v. Nkemdilim [1962] 2 SCNLR 34,
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