Download PDF
<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Dayo Apata (Director Civil Litigation, Federal Ministry of Justice), with T. A. Gazali (Assistant Chief State Counsel), Enock Simon, Miss Adedayo Ogundele (Senior State Counsel), Adam Bagobiri and Mustapha Abubakar, for the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Sola Egbeyinka, with Ernest Olawanle, for the 1<sup>st</sup> defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Olukayode Ajulo, with Samual Adebanyo Ajayi and Oluwatosin Ojaomo, for the 2<sup>nd</sup> defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On 16<sup>th</sup> 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 –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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 <i>NUEE v. BPE</i>, there is a trade dispute between the claimants and the defendants that should warrant the threat of strike by the defendants.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="text-align:center">OR<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo3"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In determining the above questions, the claimants seek for the following reliefs –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo4"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that in view of the provisions of section 48 and the pronouncement of Supreme Court of what constitute trade dispute in <i>NUEE v. BPE</i> and by the doctrine of <i>stare decisis</i>, there is no trade dispute between the claimants and the defendants to warrant a call for a nationwide strike by the defendants.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo4"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that by the provisions of section 5(1)(a) 1999 Constitution (as amended), sections 1(3), 23 of the Petroleum Product Pricing Regulatory Agency (Establishment etc.) Act, the President has the power to make directives as to the functions of the Petroleum Product Pricing Regulatory Agency (PPPRA) which includes fixing price of Petroleum products.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo4"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the proposed strike by the defendants is unlawful, illegal and <i>ultra vires</i>.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo4"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order restraining the defendants whether by themselves, their agents, privies, any persons, authority or group acting under their express or implied approval from embarking on the proposed strike/industrial action.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo4"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order of perpetual injunction restraining the defendant from embarking on strike as it relates to fixing of the petroleum price by the claimants being not an issue within the ambit of trade dispute.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo4"><!--[if !supportLists]-->6.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order that the proposed strike by the defendants is unlawful, illegal and <i>ultra vires</i>.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In support of the originating summons is an affidavit (with accompanying exhibits) and a written address.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants respectively entered formal appearance and filed their respective defence processes. The 1<sup>st</sup> first filed a preliminary objection challenging the jurisdiction of this Court to hear and determine this matter. The preliminary objection is supported by an affidavit and a written address. The 2<sup>nd</sup> defendant on its part filed a motion on notice praying that this case be struck out for want of jurisdiction. The motion is supported by an affidavit and a written address. To these respective objections, the claimant filed a counter-affidavit (in response to the 2<sup>nd</sup> defendant’s motion) and written addresses (in response to both objections). The defendants in reaction respectively filed reply on points of law.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding the originating summons itself, the 1<sup>st</sup> defendant reacted by filing a counter-affidavit and a written address, while the 2<sup>nd</sup> defendant filed a counter-affidavit (with one exhibit attached) and a written address. In reaction to the 1<sup>st</sup> defendant’s counter-affidavit, the claimants filed a further and better affidavit and a written address.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANTS’ CASE<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the claimants, this suit is prompted by the impending strike proposed by the defendants to compel, blackmail or arm-twist the Federal Government to revert back to the petroleum price of N86.50k per litre which was adjusted to not more than N145.00k by the Federal Government with effect from 11<sup>th</sup> May 2016. That at the inception of the present administration, the administration discovered that even though government was paying huge sums of money in form of subsidy on Petroleum Motor Spirit (PMS), Nigerians were still paying exorbitant sums of money in the purchase of PMS ranging between N150 – N250 per litre. In another breadth, that the products were still not available to Nigerians who were willing to purchase same even at that high rate. Marketers, who were enjoying the subsidy and foreign exchange (forex) for the importation of PMS, were found to have been diverting the product to undesignated areas and neighbouring countries, thereby causing acute fuel scarcity in Nigeria, thus visiting untold hardship on the citizenry.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in view of the above, the Federal Government convened a meeting of all stakeholders including the labour organisations in order to chart a way forward on how to ameliorate or solve the impending problems of fuel scarcity in the country. At the end of the meeting, the resolution as contained in the keynote address delivered by the Vice President was reached to implement the removal of fuel subsidy. That it is pertinent to note that the 2016 Appropriation Act, recently passed by the National Assembly and assented to by the President of the Federal Republic of Nigeria, did not contain any allocation as to payment of subsidy by the Federal Government of Nigeria. That it is also worthy of note, that the Federal Government earlier made an announcement stating that payment of fuel subsidy by the government will cease by March 2016. This was made in anticipation that the budget would have already been passed by then. The claimants accordingly filed this suit to restrain the defendants from embarking on any industrial action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE DEFENDANTS’ CASE<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The defendants, for varying reasons, believe that this Court has no jurisdiction over this suit. Assuming, however, that this Court has jurisdiction, the 1<sup>st</sup> defendant’s case is that following the pronouncement by the Minister of State for Petroleum on 15<sup>th</sup> March 2016 that fuel subsidy has been removed and that the refineries owned by the 1<sup>st</sup> 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 19<sup>th</sup> 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 17<sup>th</sup> May 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Additionally, the 1<sup>st</sup> 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 <i>Bamidele Aturu v. AG of the Federation</i> [2015] 1 NHRLR (Pt. 1) 73, which decision has not been appealed against.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant’s case on the other hand is that aside from the fact that this Court has no jurisdiction over this case, the 2<sup>nd</sup> defendant called off the planned strike following the outcome of the stakeholders’ meeting; as such the case is merely academic.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>SUBMISSIONS OF THE PARTIES<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE PRELIMINARY OBJECTIONS<o:p></o:p></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The 1<sup>st</sup> Defendant’s Preliminary Objection<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant by its preliminary objection is challenging the jurisdiction of this Court to hear and determine this matter upon the following grounds –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo5"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The subject matter of this suit has been determined by the Court of Appeal in <i>Adams Oshiomole & anor v. Federal Government of Nigeria & anor</i> [2007] 21 WRN 100.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo5"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Since the appeal filed by the defendants against the judgment of the Court of Appeal is pending at the Supreme Court (referring to SC/133/2008) between <i>Nigeria Labour Congress v. Federal Government of Nigeria</i>) this suit constitutes a gross abuse of the process of court.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo5"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The deregulation of the downstream sector of the petroleum industry, the subject matter of this suit has been declared illegal and unconstitutional by the Federal High Court in <i>Bamidele Aturu v. Attorney-General of the Federation</i> [2015] NHRLR 73.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo5"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Since the claimants did not appeal against the said judgment of the Federal High Court the policy of deregulation of the downstream sector of the petroleum industry is contemptuous, illegal and unconstitutional.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo5"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The Minister has not complied with the provision of section 6 of the Trade Disputes Act by referring the dispute to the Industrial Arbitration Panel being a condition precedent to instituting this action before this Honourable Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the submission of the 1<sup>st</sup> defendant that the claimants sought similar reliefs at the Federal High Court in Suit No. FHC/ ABJ/CS/ between the same parties. That the reliefs were granted by the Federal High Court. Dissatisfied with the judgment, the defendants filed an appeal against it. In the judgment delivered on December 18, 2006 CA/A/164/M/2004 the Court of Appeal upheld the judgment of the lower court. Further dissatisfied with the judgment, the defendants filed an appeal at the Supreme Court. That the said appeal is currently pending at the apex court as Suit No: SC/133/2008 between the parties, referring to Exhibit NLC1.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant then framed three issues for the determination of this Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo6"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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 <i>Bamidele Aturu v. Attorney-General of the Federation & ors</i>.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo6"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the subject matter of this suit does not constitute a gross abuse of court process.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo6"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the failure of the claimants/applicants 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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 1, the contention of the 1<sup>st</sup> defendant is that in Suit No: FHC/ABJ/CS/591/2009 between <i>Bamidele Aturu v. Attorney General of the Federation & ors</i>, the Federal High Court declared the deregulation of the downstream sector of the petroleum industry illegal and unconstitutional in the following words –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">By enacting the Price Control Act and the and the Petroleum Act and providing sections 4 and 6 of those Acts, for the control and regulation of prices of petroleum products, the National Assembly working in tandem with the government has made the economic objective in section 16(l)(b) of the Constitution in Chapter II justiciable. The enactments are to secure the economic objective of the State to control the national economic in such manner as to secure the maximum welfare, freedom and happiness of every citizen of Nigeria. So, the decision to deregulate the downstream sector of the petroleum industry by not fixing prices of petroleum products will not only be counterproductive, but will be a negation of that objective and a violation of the provision of the Constitution.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That consequently, the Federal High Court granted the declaratory reliefs and orders sought for by the plaintiff. That the claimants herein did not appeal against the said judgment. Thus having not appealed against the judgment, that they are bound by it pursuant to section 287(3) of the 1999 Constitution.<b> </b>That having failed to comply with the valid and subsisting judgment of the Federal High Court, the claimants herein have decided to seek fresh reliefs from this Court to have their contempt sanctioned. That a similar prayer was rejected by the Supreme Court even under a military dictatorship in <i>The Governor of Lagos State v. Emeka Ojukwu</i> [1986] 4 NWLR (Pt. 18) 621. It is accordingly the submission of the 1<sup>st</sup> defendant that the claimants who are in total disobedience to the judgment of the court should purge themselves of this contempt before bringing this application, urging the Court to refuse the claimants’ prayers.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue 2, the 1<sup>st</sup> defendant contended that in 2004 the claimants sued the defendants at the Federal High Court challenging the legal validity of a strike over the increase in the price of petroleum products. That in a judgment delivered on September 30, 2004 the reliefs sought by the claimants were granted by the Federal High Court. Completely dissatisfied with the judgment, the defendants appealed to the Court of Appeal. That in its judgment delivered on 18<sup>th</sup> December 2006, the Court of Appeal affirmed the decision of the Federal High Court. Still dissatisfied with the judgment the defendants appealed to the Supreme Court. That the said appeal is pending before the apex court. That in view of the finding of the Court of Appeal and the pending appeal at the Supreme Court on the subject matter of this suit it is submitted that this case constitutes a gross abuse of court process.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 1<sup>st</sup> defendant, under our constitutional democracy parties are not permitted to engage in forum shopping by filing several actions on the same subject matter between the same parties, referring to the cautionary words of Adefarasin CJ of blessed memory in <i>Ralph Obioha v. President of Nigeria</i> [1981] 2 NCLR 701 at 709 and <i>Akinsola v. NURTW & ors</i> [2013] 33 NLLR (Pt. 96) 399 at 478. Furthermore, that bringing 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 <i>Ogoejeofo v Ogoejeofo</i> [2006] 3 NWLR (Pt. 996) 205. The 1<sup>st</sup> defendant then urged the Court to resolve this issue in favour of the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 3, the 1<sup>st</sup> defendant contended that the claimants failed to comply with the provision of section 6 of the Trade Disputes Act (TDA), which provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 1<sup>st</sup> 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 <i>Amaonwu v. Ahaotu</i> [1998] NWLR (Pt. 566) 454 at 465, <i>Madukolu v. Nkemdilim</i> [1962] 2 SCNLR and <i>Western Steel Ltd v. Iron & Steel Workers Union of Nig (No. 2)</i> [1987] 1 NWLR (Pt. 49) 284.<u> </u>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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant then referred to the definition of trade dispute in section 48 of the Trade Disputes, which is –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That in <i>Apena v. UPPPP</i> [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 –<b><o:p></o:p></b></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l11 level1 lfo7"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A dispute between a worker and worker; or<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l11 level1 lfo7"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A dispute between a worker and his trade union; or<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l11 level1 lfo7"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A dispute having some industrial colouration.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the submission of the 1<sup>st</sup> 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 TDA have to be complied with before filing this action. That the law is trite that where the law imposes conditions precedent for doing an act such conditions must be fulfilled before doing such an act, referring to <i>Madukolu v. Nkemdilim</i> [1962] 2 SCNLR 34, <i>NBC v. Bankole</i> [1972] 4 SC 94 and <i>Femi Falana v. Attorney-General of the Federation</i> (unreported) Suit No: FHC/L/CS/1122/2011, where the Federal High Court declared illegal and unconstitutional the refusal of the Federal Government to establish the Nigerian Education Bank to provide loan for indigent undergraduates attending tertiary institutions in Nigeria given existing laws in Nigeria.<b> </b>In conclusion, the 1<sup>st</sup> defendant urged the Court resolve issue 3 in its favour.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The 2<sup>nd</sup> defendant’s Preliminary Objection<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant’s objection is brought vide a motion on notice pursuant to section 251(1)(q), (r) of the 1999 Constitution, Order 11 Rule 1, Order 15 of the NIC Rules 2007 and the inherent jurisdiction of this Court. By its objection, the 2<sup>nd</sup> defendant is seeking for, <i>inter alia</i>, an order of this Court striking out this suit for want of jurisdiction. The grounds upon which the objection is raised are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo8"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The principal issues or subject of this suit as initiated by the claimants borders on the interpretation of provisions of the 1999 Constitution (as amended) and other enactments of the National Assembly which do not fall under the powers of this Court.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo8"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->By the combined or community reading of sections 4, 6, 7, 8 and 9 of the Trade Disputes Act Cap T8 LFN 2004 any perceived trade or industrial dispute is first to be referred to Arbitration.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo8"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimants did not apply for arbitration before commencing this action.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo8"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The mode of commencement of this suit is alien to this Court.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo8"><!--[if !supportLists]-->e)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The suit as presently constituted is premature.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo8"><!--[if !supportLists]-->f)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The Honourable Court lacks jurisdiction to entertain the action at this stage.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant then framed a sole issue for the determination of the Court, namely: whether this Court is clothed with jurisdiction to determine this suit as presently constituted having regard to the power of this Court, the mode of commencement of the action and whether this action as presently constituted is not premature at this stage. To the 2<sup>nd</sup> defendant, it is an elementary law that jurisdiction is the life wire of any court and any court that sits without jurisdiction, its entire proceeding is null and void <i>ab initio</i>. That it is the hub of all judicial processes so much so that the validity or otherwise of any proceedings depends on the existence or non-existence of jurisdiction, citing <i>Uti v. Onoyiwe</i> [1991] 1 SCNJ 25 at 49 and <i>Okoro v. Egbuoh</i> [2006] 15 NWLR (Pt. 1001) 1 at 23 – 24. That our Courts have laid down in a plethora of authorities the essential ingredients that must be present for a court to assume jurisdiction over any matter brought before it, and what constitute the vital ingredients of jurisdiction were laid down in <i>Madukolu v. Nkemdilim</i> [1961] NSCC (Vol. 2) 374 at 379.<b><i><o:p></o:p></i></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is the submission of the 2<sup>nd</sup> defendant that looking at the decisions above, and the questions in the claimants’ originating summons this Court is called upon to interpret, the questions fall under the purview of the power conferred of the Federal High Court by the 1999 Constitution (as amended)., referring to section 251(1) (q) and (r) of the 1999 Constitution (as amended), which provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise Jurisdiction to the exclusion of any other court in civil cases and matters –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(q) Subject to the provision of this Constitution, the operation and <i>interpretation of this constitution</i> in so far as it affects the Federal Government or any of its agencies<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(r) <i>Any action </i><i>or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government</i> or any of its agencies (emphasis is the 2<sup>nd</sup> defendant’s).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 2<sup>nd</sup> defendant, the claimants’ call on this Court for the interpretation of section 5(1)(a) of the 1999 Constitution and also the declaration as to the validity of the act/policy directives of the President acting through the Minister of State for Petroleum as regards the functions of the PPPRA is not under the purview of the powers granted this Court by the combined provisions of section 251(1)(q) and (r) of the 1999 Constitution and section 7 of the National Industrial Court Act 2006, urging the Court to so hold. That if the Court upholds this argument, the effect then is that the principal reliefs of the claimant have been knocked off and there is nothing left to hold the other ancillary reliefs, urging the Court to so hold.<i><o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the issue whether this suit as presently constituted is not premature, relying on <i>Madukolu v. Nkemdilim</i> (<i>supra</i>), where the court held that a case comes before a court by due process where a condition precedent to the institution of the case is met, the 2<sup>nd</sup> defendant submitted that sections 4, 6, 7, 8 and 9 of the Trade Disputes Act 2004 are apt on this point. That a cursory look at these provisions will show that it is the intention of the drafters that any trade dispute has to be submitted first to arbitration.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Referring to the entire process filed by the claimants in the suit, the 2<sup>nd</sup> defendant submitted that there is no place in the entire gamut of their processes where the claimants averred to the fact that the trade dispute that is between the parties had first been submitted to arbitration before same was brought before this Court. That the absence of the precondition as envisaged by the Trade Disputes Act, robs this Court of the jurisdiction to entertain same, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, on the mode of commencement of this suit, it is the 2<sup>nd</sup> defendant’s contention is that it is the Rules of Court<i> </i>that prescribe the mode of commencement of an action before it. That the mode of commencement of this suit by the claimants is alien to this Court, referring to Order 3 Rule 1 of the NIC Rules 2007, which provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Any action for determination by the Court <i>shall commence by way of a complaint</i> which shall be filed and sealed. <i>The complaint shall be in Form 1</i> with such modifications or variations as circumstances may require (emphasis is the 2<sup>nd</sup> defendant’s). <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">It is thus the 2<sup>nd</sup> defendant’s submission that the only mode of commencement known to this court is a complaint and thus the process adopted is out of the ingenuity of the claimants and thus alien to the Court, referring to <i>Kankara v. COP</i> [2002] 13 NWLR (Pt. 785) 596 at 611. To the 2<sup>nd</sup> defendant, the use of the word “shall” in the Rules connotes mandatory compliance and thus actions to be commenced in this Court must be by a complaint and a complaint alone, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the strength of the forgoing authorities, the 2<sup>nd</sup> defendant accordingly urged the Court to decline jurisdiction and strike out this suit, on the basis that this suit at this stage is manifestly premature, incompetent and that this Court lacks jurisdiction to entertain same. That having failed to satisfy the pre-condition before instituting <i>the</i> instant suit, <i>the</i> instant suit is grossly incompetent, fundamentally flawed and as such robs this Court of the requisite jurisdiction to entertain <i>the </i>instant suit, urging the Court to strike out <i>the</i> instant suit in its entirety.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANTS’ SUBMISSIONS ON THE PRELIMINARY OBJECTIONS<o:p></o:p></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Reaction to the 1<sup>st</sup> Defendant’s Objection<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">In reacting to the 1<sup>st</sup> defendant’s preliminary objection, the claimants adopted the issues framed by the 1<sup>st</sup> defendant, that is –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo9"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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 <i>Bamidele Aturu v. Attorney General of the Federation & ors</i>.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo9"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the subject matter of this suit does not constitute a gross abuse of court process.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l8 level1 lfo9"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1, the claimants first contended that the above issues as raised by the 1<sup>st</sup> defendant suggest that the Court in <i>Bamidele Aturu v. Attorney General of the Federation</i> 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 <i>Oyakhire & ors v. Nekajeh</i> [2000] LPELR-6604(CA) and <i>United Tippers Drivers Association v. Registered Trustees of RCCG & anor</i> [2016] LPELR- 4016(CA). That the point to note here is that the instant preliminary objection by the 1<sup>st</sup> defendant was provoked by the action commenced by the claimants in this suit raising questions which border on the legality of the industrial action/strike threatened and partly embarked on by the defendants in this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants went on that they have not raise any question which in any way require the determination of issue one raised by the 1<sup>st</sup> defendant as a matter of preliminary issue for the determination of this Court. That objection of this nature must challenge the competence of the claimants’ action. That this has not in any way been achieved in the said issue raised by the 1<sup>st</sup> defendant, more so as the issue brought for determination of this Court by the claimants does not border on “deregulation”.<b> </b>That the 1<sup>st</sup> defendant cannot come before this Court in its preliminary objection challenging the constitutionality of an act which is completely out of the issues brought for the determination of this Court.<b> </b>That the 1<sup>st</sup> defendant cannot by its preliminary objection institute a fresh action before this Court. That this is definitely an abuse of judicial and legal process, and a waste of the time of this Court, urging the Court to so hold and dismiss the said objection.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants continued that assuming but not conceding that the deregulation of the downstream sector of the petroleum ministry is illegal and unlawful as claimed by the 1<sup>st</sup> defendant, the following question calls for determination: can the 1<sup>st</sup> defendant rightly come by way of preliminary objection to challenge the said alleged “unconstitutionality” or “illegality”? The claimants answered in the negative. That the 1<sup>st</sup> defendant cannot by way of preliminary objection raise an issue alien to the entire suit of the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any event, that even if issue 1 is granted in favour of the 1<sup>st</sup> defendant, that will not in any way lead to the termination of the present suit before this Court. That this goes completely contrary to the purpose of a preliminary objection as held in <i>Thomas & anor v. Aderinokun & anor</i> [2008] LPELR-4382(CA), which held that a competent preliminary objection should show the capacity of ending the matter if successful. On this basis, the claimants contended that this issue as raised by the 1<sup>st</sup> defendant in its preliminary objection is incompetent, urging the Court to so hold and dismiss same.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 2 i.e. whether the subject matter of this suit does not constitutes a gross abuse of court process, it is the claimants’ submission that the present suit as constituted and conceived does not in any way amount to an abuse of court process. That the argument of the 1<sup>st</sup> defendant is misleading and does not in any way reflect the purpose of the present suit before this Court. Firstly, that the said matter which the defendant claimed is synonymous with the present suit and as such makes this suit an abuse of court process is a valid and subsisting judgment of the Court of Appeal in <i>Adams Oshomole & anor v. Federal Government of Nigeria & anor</i> [2007] 8 NWLR (Pt. 1035) 58 – 84 where the court held that the appellant therein cannot call out workers on strike by virtue of section 34 of the Trade Unions Act Cap 437 LFN 1990.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the present suit as instituted by the claimants does not call for the interpretation of section 34 of the Trade Unions Act or challenge the power of the 1<sup>st</sup> defendant to call a nationwide strike under the said section 34 of the Trade Unions Act; instead the present suit calls for the validity, legality or otherwise of the proposed nationwide strike or total shutdown threatened by the defendants in this suit under a different law and enactment. That this suit is never a replica of any suit pending before any court of law as to constitute an abuse of court process as claimed by the 1<sup>st</sup> defendant in this suit, urging the Court to so hold and dismiss the objection of the defendant in this suit, more so as the 1<sup>st</sup> defendant cannot rely on a pending appeal in the Supreme Court on a separate matter to hold that this matter constitutes an abuse of court process. That if there is any abuse at all, it is the defendants in this suit that are in abuse of the established legal rules as contained in the clear provisions of the law and established judicial decisions, this is because they have decided to shut their eyes in disregard of the law, threatened a nationwide strike and “total shut down of the economy” where they have no power to support same.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, it is the legality of the power threatened by the defendants as it affects the circumstances of the present case despite all laws and court orders prohibiting same that made the claimants to now approach this Court for determination. In addition, that section 254C(1)(c) of the 1999 Constitution (as amended) clearly confers on this Court the power to hear and determine this suit. The section provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(c) Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters connected therewith or related thereto.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then submitted that section 254C(1)(c) clearly establishes the power of this Court to hear this suit, more so that what the claimants are seeking is a determination on the legality of the proposed strike or total shutdown of the economy threatened by the defendants in this suit despite existing court judgments and established provisions of the law. In other words, that the defendants have no power to embark on the proposed strike based on the provisions of the law and decided authorities. That this does not in any way constitute an abuse of court process, urging the Court to so hold and dismiss the objection of the 1<sup>st</sup> defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue 3 i.e. 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, the claimants contended that the 1<sup>st</sup> defendant has not in any way understood the nature of the claimants’ issue as raised as it affects the provisions of section 6 of the Trade Disputes Act. That the claimants never admitted in their claims before this Court that there exist a “trade dispute” between the claimants and the defendants. That the claimants’ argument as it relates to the existence of a trade dispute was assuming but not conceding, more so as it had consistently being their argument that there is no trade dispute between the claimants and the defendants in this suit as to warrant the defendants to threaten the nationwide strike or economic shutdown. That for the 1<sup>st</sup> defendant to now approach this Court raising a preliminary objection to the claimants’ suit on the basis of condition precedent had widely expose the want of understanding on the part of the 1<sup>st</sup> defendant as it affects the claimants’ claims before this court is uncalled for. Based on all this, it is the claimants’ submission that the principle of conditions precedent is not applicable in this case as the argument of the claimant upon which the 1<sup>st</sup> defendant’s argument is based was in assumption and not conceding, urging the Court to so hold and dismiss the 1<sup>st</sup> defendant’s objection for lack of merit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimants submitted that the objection raised by the 1<sup>st</sup> defendant is frivolous, lacks merit and a waste of the precious time of this Court; as such same should be dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>Reaction to the 2<sup>nd</sup> defendant’s Objection<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">In reacting to the 2<sup>nd</sup> defendant’s objection, the claimants raised a sole issue for the determination of this Court, which is: whether the 2<sup>nd</sup> defendant is entitled to the grant of its prayers and reliefs in this application. The claimants first itemized the points upon which the 2<sup>nd</sup> defendant’s objection is based, which are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l15 level1 lfo10"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>i.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->That originating summons is an alien mode of commencement known to this Court.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l15 level1 lfo10"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>ii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->That the subject matter of this suit falls within the jurisdiction of the Federal High Court and not this Court.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l15 level1 lfo10"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>iii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->That the claimants have failed to explore arbitration as condition precedent before the commencement of this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding the validity of the originating summons as the means of the commencing this suit, the claimants simply referred to Order 3 Rule 5A(1) of the National Industrial Court Practice Direction, 2012. The said Order provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(2) The Originating Summons shall be accompanied by:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">a) An affidavit setting out the facts relied upon.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">b) Copies of the instrument sought to be construed (other than an enactment) and other related documents.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">c) A written address containing the issues to be determined and succinct argument of the issues.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, this Order as quoted clearly empowers to the claimants to commence this suit via an originating summons as rightly done. More so, that the question raised for determination by the claimants are basically on the interpretation of the enactments. On this basis, it is the claimants’ submission that originating summons is a competent mode of commencement of action before this Court, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the argument of the 2<sup>nd</sup> defendant that the subject matter of this suit falls within the powers of the Federal High Court and not this Court, the claimants contended that this is not the case, citing section 254C(1)(c) of the 1999 Constitution 1999 (as amended) which confers exclusive jurisdiction on this Court as it relates to interpretation of enactments or instrument in relation to strikes or industrial actions. That this section clearly establishes the exclusive power of this Court to hear this suit, more so as what the claimants are seeking is the interpretation of the relevant enactments in order to determine the legality of the proposed strike or total shutdown of the economy threatened by the defendants. That it is on this basis that the subject matter of this suit falls completely within the exclusive jurisdiction of this Court, urging that this application be dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In respect of the 2<sup>nd</sup> defendant’s argument that the claimants failed to explore the requirement of arbitration provided in sections 4, 6, 7, 8 and 9 of the Trade Disputes Act 2004 as a condition precedent before the institution of this suit, the claimants contended that what the 2<sup>nd</sup> defendant failed to understand is that the said sections of the TDA 2004 only apply where there exist a trade dispute between the claimants and the defendants. That it was never the claimants’ argument that there is any dispute between them and the defendants in this suit. That the claimants’ position right from inception has been that there is no trade dispute between the parties in this suit as to warrant the defendant to embark on strike. That the claimants’ argument as it relates to the existence of trade dispute was in “assumption and not conceding”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In addition, that it is the claimant’s contention that the 2<sup>nd</sup> defendants’ motion before this Court is not competent given that the affidavit in support of the motion was not deposed before any Commissioner for Oath. By implication, that the said claims of the 2<sup>nd</sup> defendant are mere assertions and do not constitute any evidence before this Court, urging the Court to so hold. That assuming the Court’s copy was even deposed to before a Commissioner for Oath, it is not enough for the 2<sup>nd</sup> defendant to say that parties should be guided by the Court’s copy because the 2<sup>nd</sup> defendant is not expected to file and serve different processes to the Court and parties thereto, urging the Court to so hold and accordingly dismiss this application.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE DEFENDANTS’ REPLIES ON POINTS OF LAW REGARDING THEIR OBJECTIONS<o:p></o:p></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The 1<sup>st</sup> Defendant’s Reply on Points of Law<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the 1<sup>st</sup> defendant, the submissions of the claimants regarding issue 1 are misplaced and as such do not have a bearing with the subject matter of this suit. The 1<sup>st</sup> defendant then quoted section 6 of the Petroleum Act 2004 and section 5 of the Price Control Act and submitted that it stands to reason that the claimants cannot unilaterally influence the pump rice of petroleum and allied products without recourse to existing statutory provisions in force, reiterating the decision in <i>Bamidele Aturu v, AG of the Federation</i> (<i>supra</i>) that has not been set aside and that which this Court cannot sit on appeal over and overrule, citing <i>First Bank of (Nig) Plc v. Asu Bop and Company Nigeria Ltd & anor</i> [2003] 37 WRN 141 at 144 – 145 and <i>Omisore v. The State</i> [2003] 52 W.R.N 36 at 39.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 1<sup>st</sup> defendant it ought to be noted that the claimants did not file any counter-affidavit in opposition to the affidavit of the 1<sup>st</sup> defendant. That in an instance of this nature, the position of the law is trite that the claimants are deemed to have admitted the depositions in support of the application, referring to <i>Agbor v. The Polytechnic Calabar</i> [2010] 9 WRN 49 at 56, urging the Court to hold that the claimants have admitted all the facts deposed to by the 1<sup>st</sup> defendant in the affidavit in support of the notice of preliminary objection.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 2, the 1<sup>st</sup> defendant submitted that the contention of learned counsel representing the claimants that this suit is not an abuse of court process is unhelpful to the claimants. On what is an abuse of court process, the 1<sup>st</sup> defendant referred to <i>Chief Sodipo v. Lemminkainen & anor</i> [1992] 8 NWLR (Pt. 258) 229 at 242 and <i>Nyan v. Noah</i> [2007] 28 WRN 181 at 189. That in <i>Oshiomole & anor v. FGN & anor</i> [2007] 21 WRN 100 at 109 – 110 the reliefs sought for in that suit coincide with the reliefs presently being sought for in the instant suit. As such, that this suit is a gross abuse of court process. That though there is a pending appeal at the Supreme Court in respect of a similar suit with similar reliefs in <i>Adams </i><i>Oshiomole & anor v. FGN & anor</i> in SC/133/2008 which is being slated for definite hearing on 21<sup>st</sup> June 2016, this instant suit constitute an abuse of court process. In fact, that the claimants are estopped from re-litigating a suit of this nature having regard to the decisions of our Courts in suit with similar nomenclature, citing <i>Saka v. Adeboye</i> [2010] 39 WRN 98 at 102. In the light of the foregoing, the 1<sup>st</sup> defendant urged the Court to resolve issue 2 in its favour.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue 3, the 1<sup>st</sup> defendant again submitted that the argument of the claimants in that regard is erroneous. The 1<sup>st</sup> defendant then proceeded to reproduce sections 2(1), 48, 5, 9, 14 and 17 of the TDA and section 54 of the Trade Unions Act, submitting that the claimants have failed woefully to comply with the condition precedent before instituting this suit. Also referred to on the need to exhaust domestic remedies are <i>Aribisala v. Ogunyemi</i> [2005] 11 WRN 28 at 36 and <i>Bodunde & anor v. Staff Cooperative Investment and Credit Society Ltd & anor</i> [2013] 16 WRN 157 at 163 – 164. The 1<sup>st</sup> defendant then submitted that in so far as the claimants have not complied with the condition precedent as laid down by existing statutory provisions as codified in our body of laws, this Court should decline jurisdiction in this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the 1<sup>st</sup> defendant urged the Court to disregard the submission of the learned counsel representing the claimants and to dismiss this suit with a substantial cost in the sum of N500,000.00 (Five Hundred Thousand Naira) only to be awarded against the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The 2<sup>nd</sup> Defendant’s Reply on Points of Law</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">On whether the NIC has jurisdiction to entertain this case, the 2<sup>nd</sup> defendant reiterated that the jurisdiction of this Court is as outlined in section 254C(1) of the 1999 Constitution (as amended) but does not confer powers of the Court to interpret sections of the Constitution and other Acts of the National Assembly. That the jurisdiction of this Court as it relates to section 254C(1) of the 1999 Constitution (as amended) is only with respect to labour and industrial issues. That once any question borders on the interpretation of the Constitution or any other Act of the National Assembly, that question can only be determined by the Federal High Court by virtue of section 251(1)(q) and (r) of the 1999 Constitution (as amended).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in so far as question two in the claimants’ originating summons calls on this Court to determine whether the President acting through the Minister of State for Petroleum can give policy directives as regards the functions of the PPPRA, it is only the Federal High Court that can determine the question. That it has been held that the Federal High Court possesses exclusive jurisdiction in matters covered by section 251(1)(a) to (r) of the 1999 Constitution (as amended), referring to <i>Adah v. NYSC</i> [2001] NWLR (PT. 693) 65 at 80. That since the claimants have not joined issues with the 2<sup>nd</sup> defendant on the propriety or otherwise of the competence of this Court to determine issue 2 of the originating summons, it must be that they conceded that point.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 2<sup>nd</sup> defendant, assuming but not conceding that there is no trade dispute as contended by the claimants, other issues cannot be determine in isolation of question 2 in the originating summons, which falls outside the purview of section 254C(1)(c) of the 1999 Constitution (as amended), urging the Court to so hold. That the legality or otherwise of the action taken pursuant to section 5(1)(c) of the 1999 Constitution, section 1(3), 23 of the Petroleum Product Pricing Regulatory Agency (Establishment etc) Act and section 6(1) of the Petroleum Act can only be determined before the question of whether there is trade dispute between the parties in this case or not.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On whether the 2<sup>nd</sup> defendant’s motion is competent or not, the 2<sup>nd</sup> defendant submitted that the motion is competent as the affidavit in support of same has been duly sworn to before a Commissioner for Oaths of this Court. That what makes an affidavit valid is not a matter within the imagination of a party but as prescribed by law, referring to sections 109 and 111 of the Evidence Act Cap E14 2011. The 2<sup>nd</sup> defendant accordingly urged the Court to discountenance the argument of the claimants for being misconceived and aimed at misleading the Court. The 2<sup>nd</sup> defendant also urged the Court to grant their reliefs.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANTS’ SUBMISSIONS IN SUPPORT OF THE ORIGINATING SUMMONS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claimants adopted the questions posed for determination in the originating summons as the issues for determination, which thus are –<b><u><o:p></o:p></u></b></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo11"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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 <i>NUEE v. BPE</i>, there is a trade dispute between the claimants and the defendants that should warrant the threat of strike by the defendants.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo11"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether in view of section 5(l)(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.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="text-align:center">OR<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l10 level1 lfo11"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">For issue 1, the claimants first referred to the definitions of “trade dispute” and “strike” in section 48 of the TDA. There, trade dispute is defined as –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">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 condition of work of any person.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">“Strike” on the other hand is defined as –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other workers in compelling their employer or any persons or body of persons employed to accept terms of employment and physical conditions of work; and in this definition –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">a) “cessation of work” includes deliberate working at less than usual speed or work less than usual efficiency, and<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">b) “refusal to continue to work” includes a refusal to work at usual speed or with usual efficiency.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, the meaning of trade disputes was adopted by the Supreme Court in <i>NUEE v. BPE</i> [2012] NSCQR Vol. 52 (Pt. 1) at 377 – 378. That in adopting the meaning of trade dispute, the Supreme Court also considered its earlier decision in <i>National Union of Road Transport Workers v. Ogbodo & ors</i> [1998] 2 NWLR (Pt. 537) 189 in which the following ingredients were indicated as necessary for there to be a trade dispute –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">From the wordings of section 47, it is clear that the following ingredients are not only necessary but inevitable:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">a) There must be a dispute<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">b) The dispute must involve a trade<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">c) The dispute must be between:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">i. Employer and workers; or<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">ii. Workers and workers<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">d) The dispute must be connected with:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">i. The employment or non-employment; or<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">ii. The terms of employment and physical conditions of works of any person.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That applying the above principles and ingredients identified by the apex Court, there is no trade dispute between the defendants and the Federal Government to warrant embarking on a nationwide strike by the defendants. The claimants went on that in determining whether there is a trade dispute in the circumstance of this case, the Court will need to look at the “reason” for the strike contained in the communiqué issued by the 1<sup>st</sup> and 2<sup>nd</sup> defendants on 14<sup>th</sup> May 2016, which reason is simply that the Federal Government increased the price of PMS and that unless it reverts back to the original price of N86.50k per litre a strike would ensue. That this contention of the defendants is akin to what the Supreme Court considered and decided in <i>NUEE v. BPE</i> (<i>supra</i>). That in <i>NUEE v. BPE</i>, the appellants threatened to embark upon a strike to protest the privatization of National Electric Power Authority (NEPA) and without following the due process before embarking upon a strike action. The BPE which sought to stop the strike action at the trial court was not successful. However, the Court of Appeal granted the prayers of BPE and declared that the proposed strike is not borne out of any trade dispute within the meaning of the Act to warrant the strike action. Dissatisfied, the appellants (NUEE) appealed to the Supreme Court and the Supreme Court unanimously dismissed the appeal and held that the desire of the Federal Government to privatize NEPA does not constitute a trade dispute that rightly justify a strike action by virtue of the Trade Disputes Act. The claimants then submitted that this reasoning of the Supreme Court is very apt and applies to this case by the doctrine of <i>stare decisis</i>.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then submitted that going by <i>NUEE v. BPE</i>, it can be concluded that fuel price increment does not and cannot constitute a trade dispute to warrant a strike as it is not connected to the employment or physical conditions of workplace; more so as the defendants are conglomerates of various unions that are entirely private in nature and who in the main are not employees of the Federal Government and the increase in fuel price does not relate to physical conditions of workplace, urging the Court to so hold. In any event, that the Supreme Court in <i>NUEE v. BPE</i> (<i>supra</i>) seriously commented on the issue of proposed strike by NEPA in the following words –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">...coming to the instant matter, the 1<sup>st</sup> Defendant/Appellant is more or less the sole provider of electricity power, a crucial essential service to the whole nation. The chaos and total confusion talk less of the economic damage that would be inflicted on the people and the nation as a whole should the 1<sup>st</sup> Defendant/Appellant as the sole provider of electricity power proceeded on an industrial action/strike could only be imagined. Such an action if not checkmated timeously would bring the entire nation to its economic knees and standstill. To allow that stage of catastrophe to be reached would with respect, amount to unpardonable naivety.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, this comment or opinion of the Supreme Court relates to a proposed strike by only NEPA then. That the particular strike proposed and spearheaded by the defendants includes public offices, markets, banks, airports, seaports, etc. That the defendants described the strike as total shutdown of Nigeria. That one wonders why Nigeria should be totally shut down on account of fuel price increment. That when fuel price was officially N86.50k, it was not available at that price and it sold for between N200 – N250 per litre. The claimants then submitted that it is more in the public interest to officially hike it to not above N145 per litre and make it available hence there is no justification to proceed on strike even in public interest, urging the Court to so hold and grant the reliefs in favour of the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">With regard to issue 2, it is the claimants’ contention that the Executive powers of the Federation vest in the President. This is as provided by section 5(1)(a) of the 1999 Constitution, which provides thus –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">Subject to the provisions of the Constitution, the executive powers of the Federation –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(a) Shall be vested in the President and may subject as aforesaid and the provision of any law made by the National Assembly, be exercised by him directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the Federation.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, in the instant case, going by this provision, the announcement of the new pump price of petroleum product by the Minister of State for Petroleum is in exercise of the powers of the President as enshrined in section 5(1)(a) of the 1999 Constitution and thus lawful. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in the same vein, the Petroleum Minister by law is empowered to fix prices of petroleum products. This is as provided by the provision of section 6 (1) of the Petroleum Act as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The Minister may by order published in the Federal Gazette fix prices at which petroleum products or any particular class or classes thereof may be sold in Nigeria or any particular parts thereof.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then submitted that the pronouncement of the new pump price of petroleum product by the Minister of State for Petroleum on 11<sup>th</sup> May 2016 in consultation with stakeholders, is lawful and in compliance with the law, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants continued that the President of the Federal Republic of Nigeria is by law empowered to give directives to the Petroleum Products Pricing Regulatory Agency (PPPRA) in carrying out the agency’s functions. That section 23 of the Petroleum Products Pricing Regulatory Agency Act provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The President may give to the Agency or the Executive Secretary such directives of a general nature or relating generally to matters of policy with regards to the exercise of its or his functions as he may consider necessary and the Agency or the Executive Secretary shall comply with the directive or cause them to comply with.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That the Minister of State for Petroleum acted in conjunction with the Petroleum Products Pricing Regulatory Agency (PPPRA) in arriving at the new pump price of petroleum products. That the PPPRA by law is under the supervision and control of the President of the Federal Republic of Nigeria whose executive power in the instant case is being exercised by the Minister of State for Petroleum, referring to section 1 (3) of the PPPRA Act, which provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The Agency shall be located in the Federal Capital Territory Abuja and shall not be subject to the direction, control or supervision of any other authority in the performance of its functions under this Act other than the President.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants accordingly submitted that going by the above position of the law, the announcement of new pump price of petroleum by the Hon. Minister of State for Petroleum who is exercising the executive power of the President is lawful and in accordance with the law, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 3, the claimants submitted that the defendants have failed woefully to show that there exist a trade dispute between the claimants and the defendants. However, that it is an alternative position of the claimants that if this Court is inclined to hold that there is a trade dispute capable of triggering a strike action, the outlined procedure precedent to commencing a strike action has not been complied with. That the law has prescribed all the steps a labour union must take before embarking on a strike action where there exist a dispute between the union and the employer. That in line with the provisions of the Trade Dispute Act, where a trade union wishes to embark on strike, the trade union is under obligation to follow the laid down procedure and give the employer or the government as the case may be requisite notices before embarking on the said strike action, referring to sections 4, 5, 6 and 7 of the Trade Disputes Act 2004.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, it is an elementary principle of law that where a law or statute prescribes the manner or procedure by which a particular thing is to be done, the procedure so stipulated must be strictly followed. That where same is not followed any action taken by such person in disregard of the steps prescribed by the law is <i>ab initio</i> illegal, null and void and of no effect whatsoever. Thus, that the above provisions of the Trade Disputes Act ought to have been first complied with, referring to <i>Otunba Adekunle Ojora v. Agip Nigeria Plc & anor</i> [2014] 1 NWLR (Pt. 1387) 150 CA, which held that domestic remedies must be exhausted before recourse to the court can be had. That in the matter at hand, the defendants who have issued a threat of embarking on an industrial action have not followed the required procedure as provided by the law. That based on all this, the threat of the defendants which include shutting down even the essential services in the country is illegal, unlawful and <i>ultra vires</i> under the Trade Disputes Act.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then submitted that even if there is a dispute between the claimants and the defendants capable of justifying the defendants’ right to embark on an industrial action, the failure of the defendants to follow the procedure provided by the extant provision of the Trade Disputes Act is fatal to the action of the defendants; as such the planned industrial action is illegal, urging the Court to so hold. The claimants concluded by urging the Court to grant their reliefs.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE DEFENDANTS’ SUBMISSIONS IN OPPOSITION TO THE ORIGINATING SUMMONS<o:p></o:p></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The 1<sup>st</sup> Defendant’s Submissions in Opposition to the Originating Summons</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant adopted the claimants’ issues for the determination of this Court. Regarding issue 1 i.e. whether by section 48 of the TDA and <i>NUEE v. BPE</i>, there is a trade dispute between the parties as to warrant the threat of strike by the defendants, the 1<sup>st</sup> defendant referred to same section 48 of the TDA and <i>Apena v. UPPPP</i> [2003] 8 NWLR (Pt. 822) 426 for the definition of trade dispute; and that <i>Apena</i> held that a dispute having some industrial colouration is a trade dispute. To the 1<sup>st</sup> defendant, therefore, the instant dispute does have industrial colouration and so falls within the definition of trade dispute; thus the preconditions in section 6 of the Trade Disputes Act have to be complied with before filing this action. That a cursory look at the reliefs of the claimant in their originating summons will reveal that the reliefs are issues that border on the welfare of Nigerian workers. The 1<sup>st</sup> defendant went on that it has a statutory right to educate and mobilize its members on economic and social issues, citing section 34(1) of the Trade Unions Act, which to it states as follows –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">The Central Labour Organization shall have power. subject to its rules:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(a) to represent the general interest of its members on any national advisory body set up by the Government of the Federation.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(b) To collect and disseminate to its members information and advice on economic and social matters;<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(c) To give advice, encouragement or financial assistance to any of its members in need thereof.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(d) To promote the education of members of trade unions in the field of labour relations and connected fields and<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(e) To render any other assistance provided for under the articles of affiliation.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant continued that having been empowered to represent the “general interest” of workers and to collect and disseminate information to them on economic and social matters, it cannot be accused of contravening the law by advising their members to protest the arbitral increment in the pump price of petroleum from N85.60 to N145 per litre or other economic and social matters. In other words, the 1<sup>st</sup> defendant has a duty under the law to protest any economic and social, matters pursuant to the statutory power to defend the general interest of their members. That it is interesting to note that the Trade Unions Act specifically recognizes the right of trade unions to operate other than for purposes of regulating terms and conditions of employment. That section 1(2) of the Trade Unions Act states that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The fact that a combination of workers or employers has purposes or powers other than the purpose of regulating the terms and conditions of employment of workers shall not prevent it from being registered under this Act and accordingly, subject to the provisions of this Act as to the application of funds for political purposes, a trade union may apply its funds for any lawful purpose for the time being authorized by its rules, including in particular, if so authorized, that of providing benefits for its members.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That from the foregoing it is beyond dispute that a trade union can operate outside the narrow ambit of the terms of employment once its activities are designed to provide “benefit for its members”. That since the 1<sup>st</sup> defendant is registered as a trade union to protect and defend the interests of the generality of Nigerian workers and give them advice on “economic and social matters”, it is within its legal rights to protest against the fuel increment. That in <i>Pepsi-Cola Canada Beverages (West) Ltd v. Retail, Wholesales </i><i>& Department Store Union</i> [2003] CHR 501, the Supreme Court of Canada held that workers have the right to form unions and engage in strikes for the advancement of their legitimate interests. That in the leading judgment delivered by Lebel J, the Chief Justice, it was stated –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">It is through free expression that employees are able to define and articulate their common interest and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause: <i>Kmart</i> <i>supra</i>. As Cory J. noted in <i>Kmart</i>, <i>supra</i>, at para 46: It is often the weight of public opinion which will determine the outcome of the dispute…<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Free expression in the labour contexts benefits not only individual workers and unions, but also society as a whole. In <i>Lavigne </i><i>v. Ontario Public Service Employees Union</i>, (1991) 2 S.C.R. 211, the reasons of both La Forest and Wilson JJ. acknowledged the importance of the role played by unions in societal debate (See also <i>R v. Advance Cutting & Coring Ltd</i> (2001) 3 SCR 209, 2001 SCC 70 and <i>Dunmore v. Ontario (Attorney General)</i>, (2001) 3 SCR 1016, 2001 SCC 94). As part of the free flow of ideas which is an integral part of any democracy, the free flow of expression by unions and their members in a labour dispute brings the debate on labour condition into the public realm.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the use of economic pressures to press home the demands of workers for better conditions of service in particular and the improvement of living conditions generally, that the Court further stated –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Labour disputes may touch important sectors of the economy, affecting towns, regions, and sometimes the entire country. The cost to the parties and the public may be significant. Nevertheless, they are justified by the higher goal of achieving the resolution of employer employee disputes and the maintenance of economic and social peace. The legally limited use of economic pressure and the infliction of economic harm in a labour dispute has come to be accepted as a legitimate price to pay to encourage the parties to resolve their differences in a way that both can live with.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant, as an alternative submission, argued for the expansion of the concept of “trade dispute”. To it, assuming without conceding that no trade dispute has arisen in this case, the increment of the price of pump price of petroleum from N85 to N145 per litre is an inter-union dispute between the parties herein, citing <i>National Union of Transport Workers v. Nweke Ogbodo </i><i>& ors</i> [1992] 2 NWLR (Pt. 537) 181 at 191, which held <i>inter alia</i> –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The provision of section 1(A)(1) of the Trade Disputes (Amendment) Decree 1992 makes a distinction between a trade dispute and a dispute simpliciter. Whilst the first limb of the provision provides for trade dispute, the second limb of the subsection merely provides for a dispute without the word ‘trade’.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Applying the legal principles established by the authority of <i>Ogbodo</i> to the facts of the instant matter, it is the 1<sup>st</sup> defendant’s submission that the disengagement between the parties herein over the increment of pump price is a union dispute between the claimants and the 1<sup>st</sup> defendant given that we are dealing with a combination of workers and the Federal Government, the Federal Government being part of a combination of employers in the public service of the Federation and the private sector. That to this extent, the instant dispute falls within the ambit of the Trade Disputes Act, urging the Court to hold that the subject matter is simply that of trade dispute as contemplated by the Trade Disputes Act. That an industrial action outside the narrow ambit of trade dispute was upheld by the Court of Appeal in <i>Dr. Taiwo Oloruntoba v. Professor Dopemu & ors</i> [2003] 31 WRN 19, where the dispute between the parties concerned the repressive style of administration of the Vice-Chancellor of the University of Ilorin. That if the Academic Staff of the University of Ilorin could legitimately embark on industrial action to protest the repressive rule of the Vice-Chancellor, then the strike called by the 1<sup>st</sup> defendant to protest the harsh economic policies of the claimants cannot be said to be illegal. Indeed, that it has been held that the right of workers to strike or picket intended to protect their interests is an extension of their freedom of expression. That the only conclusion discernible from the authorities of <i>Ogbodo</i> and <i>Oloruntoba</i> is that the right of the defendants to strike or protest is not limited to the terms of their employment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 2, the 1<sup>st</sup> defendant submitted that the Minister/Group Managing Director and Executive Secretary of the Petroleum Products Pricing Regulatory Agency have usurped the statutory functions of the Petroleum Products Pricing Regulatory Agency and have deliberately excluded the accredited representatives of the 1<sup>st</sup> defendant from the management of the affairs of the Petroleum Products Pricing Regulatory Agency. That the claimants have argued that the President is by law empowered to give directives to the PPPRA in carrying out the functions of the agency under section 23 of the Act. That the provision of that section is very clear as to the directives of the President on policy matters. That the claimants have not shown this Court any policy directive to the Minister to warrant the decision to increase the pump price of PMS.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant went on that it is trite that the Executive powers of the Federation are vested in the President of the Federal Republic of Nigeria who may exercise such powers directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the Federation. That in the absence of any policy directives from the President or an instrument empowering the Minister to act in the manner described herein, the Minister has no instruction of the President to act or increase the price of PMS with following due process as prescribed by the law. To the 1<sup>st</sup> defendant, section 5(1)(a) of the Constitution is a general provision as to the performance of the functions ascribed to Ministers and officers of Government of the Federation. It is not in all situations that these officers or Ministers can exercise the executive powers of the President without express authority or instrument empowering such minister or officers of the Government to act for and on behalf of the President. In other words, that the power to act for and on behalf of the President by Ministers or officers of the public service is not a blank cheque that can be presented at all times whenever and however. That in the instant case, there is no instrument authorizing the Minister of State for Petroleum to fix the price of petroleum product at the present rate and in the absence of any legal instrument empowering him to so act his action at best is <i>ultra vires</i> and illegal, citing <i>Anya v. Iyayi</i> [1993] 7 NWLR (Pt. 305) 290 at 319.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant continued that in the light of the foregoing, there is no nexus between Exhibits FG 1 and FG 2 in support of the originating summons. That a critical glimpse at the exhibits will review that the Petroleum Motor Spirit (Price Fixing) Order, 2012 were all in respect of N97 pump price and signed by the former Minister for Petroleum and not the present Minister for State for Petroleum. In fact, that nowhere did the Minister claim to have been directed by the Head of State or the President to communicate the new pump price. That this Court cannot guess or speculate that the President actually took the decision ascribed to him by the claimants. That the law which established the Petroleum Pricing Regulatory Agency (PPPRA) has set up a national advisory body to determine and recommend increases in the prices of petroleum products after consultation with the relevant stakeholders including members of the 1<sup>st</sup> defendant. Unfortunately, that despite the laudable provisions of that Act, the claimants have deliberately failed, refused or neglected to constitute the Board of the Petroleum Products Pricing Regulatory Agency which is the body exclusively empowered to ensure the sale and distribution of petroleum products all over Nigeria.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue 3, the 1<sup>st</sup> defendant submitted that under English law a strike is viewed as a collective withdrawal of labour in breach of a contract of employment of individual workers with their employers, referring to <i>Rookes v. Barnard</i> [1964] AC 1129; [1964] All ER 367; [1964] 2 WLR 269. But that in Nigeria a strike is viewed as a mere temporary suspension of a contract of service, referring to <i>Anene v. J. Allen & Co. Ltd</i> (unreported) Suit No. SC 88/64. Thus, a trade union will not be registered if its registered rules do not contain a clause to the effect that “no member of the union shall take part in a strike unless a majority of the members have in a secret ballot voted in favour of the strike”. Therefore, workers who engage in industrial action are not deemed to have repudiated their contracts of employment. Hence, they are liable to forfeit their salary during the duration of a strike. The period of the strike is also not reckoned with for the purpose of calculating the period of continuous employment of the striking workers, referring to section 42 of the Trade Disputes Act.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 1<sup>st</sup> defendant, even in the heyday of military dictatorship Ukeje J. (as she then was) rightly held in the case of <i>Mrs. Yetunde Odugbesan v. Hon. Minister of Health and Social Service </i><i>& ors</i> [1994] FHCLR 168 at 190 – 191 that strikes are only forbidden when the subject matter of a trade dispute “has been submitted to the Court or the Panel”. That although <i>Odugbesan</i> decided by the learned Chief Judge was cited by the appellants she conveniently chose to ignore her own judgment in the circumstances. That since the trade dispute involved herein has not been referred to either the National Industrial Court or the Industrial Arbitration Panel, the right of the 1<sup>st</sup> defendant to strike against the increment of the price of pump price of petroleum from N85 to N 145 per litre cannot be questioned in law. That in the instant case, the 1<sup>st</sup> defendant has complied with the provisions of the Trade Disputes Act by giving the claimants the necessary notices within the limited time. That the claimants on the other hand summoned a meeting to discuss the threat of the 1<sup>st</sup> defendant to embark on strike. That having waived its right to challenge the alleged failure to give adequate notice, the claimants cannot turn round to complain that the conditions for embarking on industrial action have not been fulfilled by the 1<sup>st</sup> defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant then submitted that the claimants cannot complain that the defendants did not comply with the pre-conditions for embarking on strike when in actual fact it was the claimants that refused to carry the defendants along on issues that will greatly affect its members. That it is trite that he who comes to equity must come with clean hands, the applicants have failed to obey or complied with several judgments of courts particularly the judgment in Suit No: FHC/ABJ/CS/591/2009 between <i>Bamidele Aturu v. Attorney-General of the Federation & ors</i> (<i>supra</i>). That having failed to carry the respondents along on such sensitive issue as deregulation of the downstream sector which will have great impact on the members of the 1<sup>st</sup> defendant, the claimants cannot complain that the defendants did not comply with the preconditions for embarking on strike. The 1<sup>st</sup> defendant then urged the Court to hold that there is a trade dispute between the parties and that the defendants have complied with the pre-conditions for embarking on strike. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The 2<sup>nd</sup> Defendant’s Submissions in Opposition to the Originating Summons</u><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant raised the following issues for determination, to wit –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l12 level1 lfo12"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>i.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Heaving regards to the questions and issues submitted for determination in this suit particularly question 2 and issue 2, whether this Honourable Court has the requisite jurisdiction to entertain this suit.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l12 level1 lfo12"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>ii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Assuming but not conceding that this Honourable Court is not possessed of the requisite jurisdiction to entertain the case, whether the instant suit as presently constituted as relate to the 2<sup>nd</sup> defendant is not merely academic.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l12 level1 lfo12"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>iii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Assuming but not conceding that the suit is not academic whether the issues raised in this case are not proper issues for reference to the National Industrial Court of Nigeria Dispute Resolution (ADR) Centre.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue i), the 2<sup>nd</sup> defendant merely reiterated its earlier arguments on the issue in terms of its motion on notice challenging the jurisdiction of this Court especially in terms of question 2 of the originating summons, which calls for the interpretation of section 5(1)(a) of the 1999 Constitution, as amended, section 1(3) and 23 of the Petroleum Pricing Regulatory Agency (Establishment etc) Act and section 6(1) of the Petroleum Act. The 2<sup>nd</sup> defendant against relied on section 251(1)(q) of the 1999 Constitution, as amended, which grants exclusive jurisdiction on the Federal High Court on matters bordering on the interpretation of the Constitution. The 2<sup>nd</sup> defendant then stressed the opening words of section 251(1) of the 1999 Constitution, as amended, to wit: “Notwithstanding anything to the contrary in this Constitution…” and the fact that the jurisdiction conferred by section 251(1) is to the exclusion of any other court. Also referred is section 7(1)(g) of the Federal High Court Act. To the 2<sup>nd</sup> defendant what all of this means is that the National Industrial Court lacks the requisite jurisdiction to entertain question 2 in the claimant’s originating summons. The 2<sup>nd</sup> defendant then referred to <i>Madukolu v. Nkemdilim</i> [1962] SCNLR 314 and <i>Adah v. NYSC</i> [2001] 1 NWLR (Pt. 693) 65 at 80 and the opinion of Deji Sasegbon, as to the exclusivity of the Federal High Court’s jurisdiction under section 251(1) of the 1999 Constitution, as amended, in his book <i>Sasegbon’s Laws of Nigeria</i> 1<sup>st</sup> Edition Volume 13.<b><o:p></o:p></b></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue ii) i.e. whether the case against the 2<sup>nd</sup> defendant is not academic, the 2<sup>nd</sup> defendant answered that it is. To the 2<sup>nd</sup> defendant, once the Court resolves its issue i) in its favour, “the two remaining questions and issues submitted by the claimants for determination in this suit would lead the court with only an academic exercise as this suit revolves around Claimant’s issue two which is the only live issue before this court in this case”, referring to paragraph 8 of the 2<sup>nd</sup> defendant’s counter-affidavit where it was stated that both defendants have called off the planned industrial action, hence there will be no need to determine and or grant the claimants’ reliefs sought as there is no dispute between the claimants and the defendants. As to when a suit becomes academic, the 2<sup>nd</sup> defendant referred to <i>Plateau State v. AG Federation</i> [2006] 3 NWLR (Pt. 967) 346 at 419, which held thus: “A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour…”; as well as <i>Oke v. Mimiko</i> [2013] LPELR-20645(SC) and <i>Odedo v. INEC</i> [2008] 17 NWLR (Pt. 1117) 554 at 600. The 2<sup>nd</sup> defendant then urged the Court to hold that there is no live issue in the instant case for this Court to adjudicate upon and so strike out this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant went on that it must be pointed out that even though the claimants made heavy weather of the non-existence or otherwise of an industrial dispute that would warrant the defendant to embark on strike, issues 1 and 3 in the claimant’s originating summons and arguments canvassed therein are at large and misconceived. That this submission is hinged on the ground that the fulcrum of their case is founded on the propriety or otherwise of the deregulation policy of the downstream sector of the Petroleum industry by the Executive Arm of the Federal Government which led to outcry by labour unions and the general public in Nigeria. That in so for as the foundation of the instant action borders on matters which are not within the jurisdiction of this Court, the other arguments on issues 1 and 3 have no legs to stand on because it is not the business of this Court to pick and choose which issue(s) to decide when the main issue is dispute is not within the purview of section 254C of the 1999 Constitution, which outlines the jurisdiction of this Court. The 2<sup>nd</sup> defendant then urged the Court to strike out this suit or in the alternative direct parties to pursue reconciliatory move in the resolution of all issues that gave rise to this action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As for issue iii) i.e. whether this suit should not be referred to the ADR Centre of this Court, the 2<sup>nd</sup> defendant contended that the issue that gave rise to the planned industrial action by the defendants and the subsequent commencement of this action by the claimants is one that borders on sensitive labour issues end ought to be handled in a non-confrontational manner as the issue of the deregulation of the Petroleum Industry affects every segment of the Nigerian Society. That to ensure industrial harmony, the claimants ought to have explored the procedure enumerated in section 5(1) of the Trade Disputes Act Cap T8 LFN 2006 before heading to this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the 2<sup>nd</sup> defendant, there was an obvious apprehension of a trade dispute which was what led to the stakeholders’ meeting alluded to by the claimants in paragraph 12 of their originating summons. That the said impending trade dispute arose out of the Federal Government of Nigeria policy on deregulation leading to a sporadic increase in the pump price of petroleum product and which has led to the increase in the price of consumer goods and services. That this explains the reason why labour unions have been agitating for an increase in minimum wage of workers so as to increase their purchasing power. That the existence of the labour unions is to press home the rights and welfare of their members in pursuance of their right to freedom of association end to hold opinion on any government policy that could have adverse effect on the generality of the Nigerian workers. That the welfare of Nigerian workers is paramount to the labour unions and accounts for why labour unions have been agitating for increase in wages following the increase in fuel price since government has not put any palliatives in place.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant proceeded to submit that it clear from Order 3 Rule 3 of the National Industrial Court ADR Centre Rules 2015 that this suit is better referred to the ADR centre for resolution in view of the sensitive nature of the issues and parties involved. Order 3 Rule 3 of the National Industrial Court ADR Centre Rules 2015 provides thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Where parties have joined issues in a matter before the Court and such matters qualifies for ADR consideration, it shall be referred to the Centre by the president of the Court or a judge of the Court handling such matter.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That since the claimants have failed to comply with section 5(1) and (2) of the Trade Disputes Act and have approached this Court, given the sensitive issue giving rise to this action, this matter can better be resolved by the National Industrial Court of Nigeria Arbitration and Dispute Resolution as the spirit and intent of the National Industrial Court is to encourage amicable resolution of labour and industrial dispute and industrial harmony between the parties in this case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the 2<sup>nd</sup> defendant urged the Court to strike out the suit as no purpose will be served by a determination of same or refer the matter to the National Industrial Court Alternative Dispute resolution (ADR) center in line with Order 3 Rule 3 of the NIC ADR Rules 2015 for resolution.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>THE CLAIMANTS’ REPLY ON POINTS OF LAW IN RESPONSE TO THE 1<sup>ST</sup> DEFENDANT’S SUBMISSIONS<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">To the claimants, the arguments of the 1<sup>st</sup> defendant that this case borders on the deregulation of the downstream sector of the petroleum industry, that the subject matter of this suit has been determined by the Federal High Court in <i>Bamidele Aturu v. AG of the Federation</i>, and that there exist a trade dispute between the parties in this suit, are all aimed at misleading this Court. The claimants then submitted that their case does not in any way border on the legality of the deregulation of the downstream sector of the petroleum industry, but rather on the legality of the proposed strike threatened by the defendants in this suit, referring to the reliefs they claim. That the reliefs clearly suggest that the subject matter of this suit borders on the legality of the proposed strike threatened by the defendants in this suit, more so as it is the relief a party seeks in a suit that determines the subject matter of the suit before a court of law, urging the Court to so hold and grant the reliefs of the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, on the submission that the subject matter of this suit has been determined by the Federal High Court in <i>Bamidele Aturu v. Attorney General of the Federation</i> (Suit No: ABJ/CS/591/2009), it is the claimants’ contention that the subject matter of this suit has not in any way been determined and does not as such constitute an abuse of court process. On the meaning and ingredients of abuse of court process, the claimants referred to <i>Umeh v. Iwu</i> [2008] 8 NWLR (Pt. 1089) – the page is not supplied. That the case held abuse of court process to contemplate multiplicity of suits between same opponents, on same subject matter and same issues. That from this case, it cannot be said that the parties in this suit and <i>Bamidele Aturu</i> as referred to by the 1<sup>st</sup> defendant are the same; that the subject matter are not in any way in agreement. That in <i>Bamidele Aturu</i>, the subject matter clearly borders on the legality of deregulation of the downstream petroleum sector as against the present suit which only seeks to determine the legality of the proposed strike threatened by the defendants in this suit; more so, that the issues raised by the claimants in this suit are not the same as the issues raised in <i>Bamidele Aturu</i>. That the said conditions stated in <i>Umeh v. Iwu</i> (<i>supra</i>) must jointly co-exist to constitute abuse contemplated by the 1<sup>st</sup> defendant. That this has not in any way been established by the 1<sup>st</sup> defendant in this suit, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In addition, as it affects the case of <i>Rookes v. Bernard</i> [1964] AC 1129; All ER 367; [1964] 2 NLR 264 cited by the 1<sup>st</sup> defendant in support of its argument that there exist a trade dispute between the claimants in this suit and the defendants, that the said case does not in any way support the 1<sup>st</sup> defendant’s case, more so as the case is a foreign case with merely persuasive effect which has no force of law to override our established case laws and statutory provisions, urging the Court to so hold and grant the reliefs of the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this suit. The defendants first challenged the jurisdiction of this Court. As is standard practice and the law, I will first consider the objections as to jurisdiction by the defendants. In doing this, I will not follow any order in terms of the presentation of the issues by the respective defendants. In this regard, I will right away dispose of the claimants’ contention that the 2<sup>nd</sup> defendants’ motion objecting to the jurisdiction of this Court is not competent given that the affidavit in support of the motion was not deposed to before any Commissioner for Oath. I cross-checked the said affidavit in the case file and found that it was deposed to before a Commissioner of oath. I do not accordingly think that the claimants’ argument in that regard has any merit. It shall accordingly be discountenanced; and I so do.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I need to also dispose quickly the argument of the 2<sup>nd</sup> defendant that the claimants should have commenced this action by way of complaint instead of by way of originating summons. As rightly submitted by the claimants, Order 3 Rule 5A of the NIC Rules 2007 as inserted by the NIC Practice Direction 2012 permits them to come by way of originating summons. The arguments of the 2<sup>nd</sup> defendant in that regard must accordingly be discountenanced; and I so do.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant also argued that given question 2 and relief 2 of the originating summons, which deal with especially the interpretation of section 5(1) of the 1999 Constitution, as amended, this case squarely comes within the jurisdictional mandate of the Federal High Court in virtue of section 251(1)(q) of the 1999 Constitution, as amended. The 2<sup>nd</sup> defendant even stressed the opening words of section 251(1) of the 1999 Constitution i.e. “Notwithstanding anything to the contrary contained in this Constitution…” and the exclusivity of the jurisdiction of the Federal High Court; and because section 251(1)(q) grants jurisdiction over “the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies”, this Court cannot entertain the instant case. The 2<sup>nd</sup> defendant appears to either forget or not to know that section 254C(1) of the 1999 Constitution, as amended, opens up with the words, “Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution…”, and even section 251(1)(q) starts with the words, “subject to the provisions of this Constitution…” In virtue of the opening words of section 254C(1), section 251 is not only made subject to it, the opening words of section 251(1)(q) further limits the operation of that paragraph. All of this means that once a matter squarely falls within the jurisdiction of this Court, nothing else will override it.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This of course yields to the question of what really the claimant’s case is, for this is what will determine whether this Court has jurisdiction or not. All but relief 2 of the claimants deal with the issue of the threatened industrial action of the defendants. This led the claimants to submit that their case is not one on the legality of the deregulation of the downstream sector of the petroleum industry, but rather one on the legality of the proposed strike threatened by the defendants. I agree with the claimants on this. This being the case, having to decide on whether the President of the country has the power to make directives as to the functions of the PPPRA (question 2/issue 2 and relief 2 of the originating summons) is unnecessary and out of place in terms of the remit of this Court and the main reliefs of the claimants. It is only relevant in terms of <i>the assumption</i> of the claimants that the President of the Country has the power to make directives as to the functions of the PPPRA, which includes fixing the price of petroleum products, and so the claimants cannot embark on any industrial action challenging what the President can legally do. In this sense, the argument of the 2<sup>nd</sup> defendant as to this Court lacking jurisdiction is untenable. I agree, however, that asking this Court to decide whether the President of the Country acting through the Minister of State for Petroleum can give policy directives as regards the functions of the PPPRA is something that is outside the remit of this Court. See <i>Pam & ors v. ABU & ors</i> [2013] LPELR-21406(CA), which held that “a dispute arising from administrative directives relating to guidelines for promotions of senior staff in an Educational Institution is not one of the disputes related to the specie of disputes listed under section 7 of the National Industrial Court Act”. I must, however, caution that <i>Pam</i> should be understood as limited in scope to only section 7 of the NIC Act 2006. It is accordingly arguable whether <i>Pam</i> can stand against the more elaborate, expansive and expressive jurisdiction of this Court under section 254C of the 1999 Constitution, as amended. This aside, question 2 as well as relief 2 shall accordingly not be considered by this Court as couched.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The argument of the 1<sup>st</sup> defendant that the deregulation of the downstream sector of the petroleum industry, the subject matter of this suit, has been declared illegal and unconstitutional by the Federal High Court in <i>Bamidele Aturu v. AG of the Federation</i> [2015] NHRLR 73, is accordingly inconsequential, since that too is outside the remit of this Court, and the key issue before the Court is the legality or otherwise of a threatened strike over the increase in price of Petroleum Motor Spirit (PMS). Even if the acts of the President in giving directives as to the functions of the PPPRA, which includes fixing the price of petroleum products, are illegal and unconstitutional, the issue before this Court is whether on that account the defendants can threaten to embark on an industrial action. The sole issue for determination in this Court, therefore, is whether the defendants can go on strike because the price of PMS has been increased by the Federal Government. For this issue, I have no doubt whatsoever that given the state of the law today it is this Court, and no other Court for that matter, that has the jurisdiction to hear and determine it. I shall give my reasons as I proceed in this judgment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant argued that the subject matter of the instant suit had been determined by the Court of Appeal in <i>Adams Oshiomole & anor v. FGN</i> [2007] 21 WRN 100, and the Court of Appeal decision is presently on appeal before the Supreme Court as <i>NLC v. FGN</i> Appeal No. SC/133/2008. I must first state that nothing was placed before this Court to show that there is <i>actually</i> this appeal pending before the Supreme Court. Paragraph 3(e) of the affidavit in support of the 1<sup>st</sup> defendant’s preliminary objection refers to Exhibit NLC1 as proof of the said appeal; but no such exhibit was actually attached to the said affidavit. I shall, however, give the 1<sup>st</sup> defendant the benefit of the doubt and proceed in this judgment on the assumption that such an appeal is actually pending as claimed by the 1<sup>st</sup> defendant. Now <i>Adams Oshiomole & anor v. FGN</i> [2007] 21 WRN 100 came up as a result of an action filed in 2003 before the Federal High Court regarding an issue similar to that presently before this Court i.e. whether the defendants in this suit can go on strike because of increase in the price of PMS. The problem, however, is that the state of law as at 2003 is markedly different from that today. Aside from the NIC Act 2006, we now have the Third Alteration to the 1999 Constitution, which provides a constitutional dispensation that permits this Court in section 254C(1)(f) and (h) and (2) when adjudicating not only to have regard to international best practices in labour but to also apply international labour standards, conventions, treaties or protocols which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith. Nigeria is a member of the International Labour Organisation (ILO), the membership of which enjoins the observance of certain key international labour instruments e.g. Freedom of Association and Protection of the Right to Organize Convention No. 87 and Right to Organize and Collective Bargaining Convention No. 98, all of the ILO. The ILO has a world of literature on these Conventions especially on the right to strike. Expectedly, this Court is constitutionally enjoined when adjudicating to apply these conventions as they have been ratified by Nigeria. See <i>Aero Contractors Co. of Nigeria Limited v. National Association of Aircraft Pilots and Engineers (NAAPE)</i> [22014] 42 NLLR (Pt. 133) 664 NIC. So the state of the law as at today is remarkably different from that in 2003 when the dispute in <i>Adams Oshiomole & anor v. FGN</i> [2007] 21 WRN 100 arose.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The dispute in 2003 may appear similar to that in 2016, but they remain two different disputes. I asked the defendants in open court whether a person who is assaulted by another in 2003 cannot maintain an action in 2016 if assaulted in 2016 by the same person who assaulted him in 2003 simply because the assault of 2003 is pending at the Supreme Court. I got no answer from the defendants. As it is, therefore, the present dispute between the parties arose in 2016 and so is different from that of 2003. Each generates its right of action given the varying circumstances and the state of the law applicable. In any event, question 1 (and hence relief 1) of the originating summons seeks this Court to determine whether in virtue of section 48 of the TDA and the Supreme Court decision in <i>NUEE v. BPE</i> [2012] NSCQR Vol. 52 (Pt. 1), the defendants can go on strike. <i>NUEE v. BPE</i> was a case decided by the Supreme Court in 2010, that is, long after 2003 when the dispute in <i>Adams Oshiomole & anor v. FGN</i> [2007] 21 WRN 100 arose. It was because of the decision in <i>NUEE v. BPE</i> that the Third Alteration to the 1999 Constitution was enacted. So a case that raises the question whether in view of a 2010 case (<i>NUEE v. BPE</i>) the defendants can go on strike cannot be said to be the same with a case, the cause of action of which arose in 2003 but is still pending before our apex court. In that respect, the circumstances in 2016 and those in 2003 cannot be the same as to rob this Court of jurisdiction over the instant suit. The instant suit cannot, therefore, be an abuse of court process simply because the 2003 dispute is pending before the Supreme Court. The two are different disputes; and I so find and hold. For the reasons given, I hold that the argument of the 1<sup>st</sup> defendant in that regard has no merit and so is hereby discountenanced.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 2<sup>nd</sup> defendant argued that this Court should decline jurisdiction because the issue involved is merely academic especially against the 2<sup>nd</sup> defendant given that it called off the threatened strike. The very fact that the 1<sup>st</sup> defendant argued that this case is an abuse of court process because there is a similar issue pending before the Supreme Court presupposes that the issue presently before this Court is after all not academic. The penchant to threaten strike actions, a fact that this Court can conveniently take judicial notice of, means that there is nothing academic about the instant suit before this Court. I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Both defendants complained that the claimants did not abide by the processes of Part I of the Trade Disputes Act (TDA) 2004, which enjoin that negotiations, mediation, conciliation and arbitration be exhausted before recourse to adjudication in this Court can be had. The 1<sup>st</sup> defendant discussed this as its issue 3. In discussing issue 3 of its preliminary objection, the 1<sup>st</sup> defendant cited section 6 of the TDA, when what it intended was section 5 of the Trade Disputes Act (Essential Services) Act Cap T9 LFN 2004. This error aside, the provision intended merely permits the Minister of Labour to apprehend a dispute and refer same to the Industrial Arbitration Panel (IAP) where the dispute relates to an essential service. The 2<sup>nd</sup> defendant similarly referred to section 5 of the TDA, which enjoins the Minister of Labour having apprehended a trade dispute to inform the disputing parties of the steps he proposes to take for the purpose of resolving the dispute. In both contentions of the respective defendants, there is something sad in their analysis. Both sections deal with a duty imposed on the Minister of Labour; but the defendants talk of the claimants (none of whom incidentally is the Minister of Labour) not discharging the obligations stipulated in these section. How can the claimants be enjoined to do that which is statutorily the duty of the Minister of Labour? I really cannot say.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In submitting that the claimants did not abide by the processes of Part I of the TDA, the defendants are saying that this suit is premature. But is this really the case? It will be if actually it is enjoined as such by the law; and to determine the applicable law, we may need to go beyond the TDA itself. Incidentally, it is here that the defendants exhibited a very poor appreciation of the current state of the law. I indicated earlier that the sole issue for determination in this Court is whether the defendants can go on strike because the price of PMS has been increased by the Federal Government. Do the claimants need to exhaust the processes of Part I of the TDA before litigating this issue? This remains the question.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Now, this Court has been given special jurisdiction over industrial actions and strikes. The first time this was done was in 2006 vide section 7(1)(b) of the NIC Act 2006, which provides that this Court shall have and exercise exclusive jurisdiction in civil causes and matters relating to the grant of any order to restrain any person or body from taking part in any strike, lockout or any industrial action, or any conduct in contemplation or in furtherance of strike, lockout or any industrial action. In 2006, this provision was novel and meant to guard against the circuitous nature in which the legality or otherwise of strike actions was often determined in the country. Before 2006, for instance, it took the High Court of the Federal Capital Territory as per <i>Federal Government of Nigeria v. Adams Oshiomhole</i> [2004] 1 NLLR (Pt. 2) 326, the Court of Appeal as per <i>Federal Government of Nigeria v. Adams Oshiomhole</i> [2004] 1 NLLR (Pt. 2) 339 and the Federal High Court as per <i>Federal Government of Nigeria v. Adams Oshiomhole</i> [2004] 1 NLLR (Pt. 3) 541 to decide whether Comrade Adams Oshiomhole and the Nigeria Labour Congress (NLC) can validly lead Nigerians on a strike action. Given the submissions of the 1<sup>st</sup> defendant in the instant case that this case is still pending at the Supreme Court, it means that even as at 2016 (i.e. 13 years after), we still do not know if Comrade Adams Oshiomhole and the NLC validly led Nigerians on the strike action of 2003. But because <i>NUEE v. BPE</i> [2010] LPELR-1966(SC); [2010] 7 NWLR (Pt. 1194) 538 SC ruled that as at 2010, the NIC remained an inferior court of record, it meant that section 7(1)(b) of the NIC Act could not stand the jurisdictional mandate of the High Courts under the 1999 Constitution. The answer by the National Assembly was to enact the Third Alteration to the 1999 Constitution, which inserted section 254C(1)(c) of the 1999 Constitution, as amended. Section 254C(1)(c) provides that this Court shall have exclusive jurisdiction in civil causes and matters –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of strike, lock-out or any industrial action and matters connected therewith or related thereto.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Now, this Court has generally held that despite that section 254C(1) of the 1999 Constitution, as amended, confers exclusive jurisdiction on this Court, that would not stop matters that ought to go through mediation, conciliation and arbitration from going through those processes before adjudicating same in this Court. In any event, even section 254C(3) of the 1999 Constitution, as amended, permits this Court to establish an Alternative Dispute Resolution (ADR) Centre within the Court premises as well as entertain and exercise appellate and supervisory jurisdiction over arbitral tribunals, and section 254C(4) enjoins this Court to entertain any application for the enforcement of the award, decision, ruling or order made by an arbitral tribunal. All of this presupposes that mediation, conciliation and arbitration can be enjoined before any adjudication in this Court. This fact is reinforced by section 7(3) of the NIC Act 2006, which provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Accordingly, see<i> AUPCTRE v. FCDA and ors</i> unreported Suit No. NIC/17/2006 delivered on 23<sup>rd</sup> May 2007 and <i>Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v. Union Bank of Nigeria Plc and ors</i> unreported Suit No. NIC/11/2007 delivered on January 24, 2008.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This probably is what the defendants had in mind when they argued that the claimants did not exhaust the processes of Part I of the TDA before coming to this Court. But the question still remains whether a dispute as to a strike or industrial action is one that must go through the dispute resolution processes of Part I of the TDA. A careful reading of section 7(3) of the NIC Act will show that the matters which will need to go through conciliation and arbitration are those listed in section 7(1)(a) of the NIC Act itself. Section 7(1)(a) provides that this Court shall have and exercise exclusive jurisdiction in civil causes and matters –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">relating to –<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">(i) labour, including trade unions and industrial relations; and<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereof.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Section 7(3) of the NIC Act 2006 did not include section 7(1)(b) as part of the matters that will need to go through conciliation and arbitration before coming to this Court. The reason for this is not farfetched. Section 7(1)(b) of the NIC Act 2006 as well as section 245C(1)(c) of the 1999 Constitution, as amended, in dealing with issues of industrial actions, deal with matters that are of urgent importance, matters that should not be bogged down in the trappings of a slow paced dispute resolution process. The urgency of this case was captured by the Hon. President of this Court in his <i>ex parte</i> ruling of 17<sup>th</sup> May 2016 in this case. This also explains why in section 19(a) of the NIC Act 2006, this Court is granted the power to make urgent interim reliefs where necessary.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Going, therefore, by section 7(1)(b) of the NIC Act and section 254C(1)(c) of the 1999 Constitution, as amended, this Court has <i>original</i> (not <i>appellate</i> as by going through the processes of Part I of the TDA) jurisdiction to hear and determine any matter relating to the grant of any order to restrain anybody or person from taking part in any strike or industrial action. In talking about “any person or body”, both the NIC Act and the constitutional provisions are not restricted to trade unions or employers’ organisations alone; which means that an action will lie even against persons or bodies that are not trade unions or members of a trade union as long as the issue relates to an industrial action. So once the issue is whether to grant a restraining order as to an industrial action or strike or lockout against <i>any person or body</i>, this Court (and none other) will have <i>original</i> jurisdiction; and I so find and hold. See <i>Pam & ors v. ABU & ors</i> [2013] LPELR-21406(CA), where section 7(1) of the NIC Act was interpreted and Aboki, JCA held thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">A careful reading of the provisions of section 7(1)(a)(b) & (c) of the National Industrial Court Act 2006 reproduced above will reveal that it concerns matters of labour, trade unions, industrial relations, environmental and condition of work, safety and welfare of labour as well as related matters such as strike, lock-out or any industrial action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">See also <i>Power Holding Company of Nigeria Plc & anor v. AG Sokoto State & anor</i> [2014] LPELR-23825(CA), which held that because there was nothing in the statement of claims to show that the matter has anything to do with labour law, trade dispute, industrial relation or industrial action, and there is no employee/employer relationship disclosed in the pleadings between the parties to the action, the NIC cannot be said to be the Court with jurisdiction to hear and determine the case. In all, the arguments of the defendants that the claimants need to exhaust the processes of Part I of the TDA before coming to Court are accordingly untenable and so are hereby discountenanced.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">For all the reasons given, I hold that this Court has the jurisdiction to hear and determine the instant suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>The Merit of the Originating Summons<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Having thus held that this Court has jurisdiction over this case, I now proceed to the merit of the originating summons; and I start off with some remarks. First, relief 3 as per the originating summons is for “a declaration that the proposed strike by the defendants is unlawful, illegal and <i>ultra vires</i>”, while relief 6 is for “an order that the proposed strike by the defendants is unlawful, illegal and <i>ultra vires</i>”. I really do not see how “an order that the proposed strike by the defendants is unlawful, illegal and <i>ultra vires</i>” is any different from relief 3 as to be grantable separately. Relief 6 is not seeking a restraining injunctive order (for that is what would naturally flow from the grant of relief 3, which in any event is what relief 5 prays for). An order that the proposed strike by the defendants is unlawful, illegal and <i>ultra vires</i>, sounds more declaratory and so merely repeats relief 3.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Secondly, the 1<sup>st</sup> defendant cited section 34(1) of the TUA. The very manner in which the 1<sup>st</sup> defendant quoted section 34(1), referring thereby to “Central Labour Organization”, shows that the 1<sup>st</sup> defendant is not even aware that that section has been amended by section 8 the Trade Unions (Amendment) Act of 2005. In fact, by section 7(2) of this 2005 Act, although inelegantly drafted, the phrase, “Central Labour Organization” is to be substituted with (the section uses the word “for”, hence the inelegant drafting) the phrase “Federation of Trade Unions” wherever it appears in the Principal Act.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Thirdly, it is ironic that the processes of Part I of the TDA 2004 were cited by defendants and the claimants – the one to justify the preliminary objection on the basis that this suit is premature because the claimants did not follow the processes of Part I of the TDA (an issue I have already dealt with); and the other as justifying the contention that the defendants did not observe the processes of Part I of the TDA as to justify their embarking on an industrial action. In both contentions, however, either side of the parties merely exhibited their poor appreciation of the legal rules in this area of the law. For instance, as an alternative argument, the 1<sup>st</sup> defendant submitted that even if no trade dispute has arisen in the instant case, the increment of the price of pump price of petroleum from N85 to N145 per litre is an inter-union dispute between the parties herein. This submission is as absurd as it is illogical. Incidentally, this same submission was made before the Court of Appeal by Mr. Femi Falana (now SAN), the actual lead counsel for the 1<sup>st</sup> defendant in the instant case, in <i>Oshiomole v. AG, Federation</i> [2006] LPELR-7570(CA); [2007] 8 NWLR (Pt. 1035) 58. The Court of Appeal was, however, silent on the submission. Now, in labour relations, an inter-union dispute, as the name implies, is one between trade unions; the other variant being intra-union dispute, one within a trade union i.e. between its members. See <i>NUT & ors v. COSST</i> [2005] LPELR-5953(CA); [2006] NWLR (Pt. 974) 590 and <i>Umoren v. Akpan & ors</i> [2008] LPELR-8473(CA); [2008] 16 NWLR (Pt. l113) 223 CA. The claimants in the instant case are not trade unions, or collectively a trade union. The argument of the 1<sup>st</sup> defendant that the claimants, as Federal Government, are part of a combination of employers is untenable as the claimants were not sued as such. Employers have their combinations recognized as such and as trade unions under Part C of the Third Schedule to the TUA. So which of these employers’ associations are the claimants a member of and under which they were sued? The 1<sup>st</sup> defendant did not state. So how can the dispute over the increase in pump price of petroleum between the claimants and the defendants be an inter-union dispute? Where workers/employees and their union have a dispute with their employer who is then sued as an employer without the employer’s employers’ association being joined as a party, that dispute cannot be termed an inter-union dispute simply because the employer is a member of an employers’ organization/association not even disclosed. Historically, it was Decree 47 of 1992 that added inter and intra-union disputes to the jurisdiction of this Court before the more expansive and expressive jurisdiction found in section 7 of the NIC Act 2006 and section 245C of the 1999 Constitution, as amended.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">When addressing the issue of the jurisdiction of this Court over this suit, I indicated that the sole issue for determination in this Court is whether the defendants can go on strike because the price of PMS has been increased by the Federal Government. How did the claimants frame the issues they brought to this Court in terms of the questions posed as per the originating summons? First, I must point out a bit of inelegance in framing the questions as did the claimants. The claimants presented questions 1 and 2, and then in the alternative presented question 3. As presented, therefore, question 3 appears to be an alternative to both questions 1 and 2 taken as one set of questions. In other words, the Court can either consider questions 1 and 2 as one set or simply consider question 3 as an alternative to both questions 1 and 2. Yet, this is not the intendment of the claimants since question 3 bears relationship to question 1. For the sake of clarity, and at the risk of repetition, I reproduce the questions as framed. They are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo13"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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 <i>NUEE v. BPE</i>, there is a trade dispute between the claimants and the defendants that should warrant the threat of strike by the defendants.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo13"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="text-align:center">OR<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l9 level1 lfo13"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->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. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">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 <i>NUEE v. BPE</i>. 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 <i>NUEE v. BPE</i>, 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.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">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 <i>NUEE v. BPE</i> 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 <i>only</i> a trade dispute can justify a strike. Alternatively put, the claimants did not tell this Court that <i>NUEE v. BPE</i> decided that a strike can <i>only</i> be embarked upon when there is a trade dispute. Even when the claimants quoted from <i>NUEE v. BPE</i>, the fact is that the Supreme Court acknowledged that the facts of <i>NUEE v. BPE</i> at worst approximate to a wild cat strike; suggesting, therefore, that a strike can occur even where there is no trade dispute. In open court, I posed the question whether only a trade dispute can give rise to an industrial action or strike to the claimants, but I got no satisfactory answer. I followed this with the question whether within the context of ILO literature, the right to strike is restricted to only when there is a trade dispute. The claimants’ answer was that the Court must note that ILO literature (conventions and recommendations) cannot supersede our local conditions and circumstances.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The 1<sup>st</sup> defendant, on the other hand, contended that the defendants have a duty under the law to protest any economic and social matters pursuant to the statutory power they have to defend the general interest of their members. That it is interesting to note that the Trade Unions Act (TUA) specifically recognizes the right of trade unions to operate other than for purposes of regulating terms and conditions of employment, citing section 1(2) of the TUA. When the 1999 Constitution was amended vide the Third Alteration to the 1999 Constitution and this Court was granted the jurisdiction and power to apply international labour standards (including conventions, treaties, and protocols ratified by Nigeria), the yardstick for determining the legality of a strike now includes the injunctions under international labour standards as laid down by the ILO. The ILO Conventions dealing with the issue of industrial actions are the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). These Conventions (ratified by Nigeria on 17<sup>th</sup> October 1960) as well as their accompanying Recommendations accordingly apply in Nigeria and so are recognizable and applicable as such in this Court. See <i>Aero Contractors Co. of Nigeria Limited v. National Association of Aircraft Pilots and Engineers (NAAPE)</i> [2014] 42 NLLR (Pt. 133) 664 NIC. See also <i>The Hon. Attorney-General of Enugu State v. National Association of Government General Medical and Dental Practitioners (NAGGMDP) & anor</i> [2014] 47 NLLR (Pt. 153) 427 NIC, a case decided on 20<sup>th</sup> June 2011 but in respect of a cause of action that arose before the enactment of the Third Alteration to the 1999 Constitution. In fact, by the ILO Constitution, in virtue of Nigeria’s membership of the ILO, these Conventions apply automatically even in the absence of ratification. The question that presently arises is how the ILO treats the issue of strikes especially as it pertains to the facts of the instant case before this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The ILO in its publication, <i>Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO</i> (1996), Fourth (revised) edition at paragraph 131 at page 29, states in strong terms that “the right to strike and to organize union meetings are essential aspects of trade union rights…” The trio of Bernard Gernigon, Alberto Odero and Horacio Guido in “ILO Principles Concerning the Right to Strike” (1998) 4 <i>International Law Review</i>, vol. 137 at pages 441 – 481 have proceeded to discuss in greater details the ILO principles governing the right to strike. To these authors, the ILO “recognizes the right to strike to be one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests…Over the years, in line with this principle, the Committee on Freedom of Association has recognized that strike action is a right and not merely a social act…” (at page 443). That the ILO has “linked the exercise of the right to strike to the objective of promoting and defending the economic and social interests of workers (which criterion excludes strikes of a <i>purely</i> political nature from the scope of international protection provided by the ILO…” (at page 444). The trio went on at page 445 –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The nature of the demands pursued through strike action may be categorized as being occupational (seeking to guarantee or improve workers’ working or living conditions), trade union (seeking to guarantee or develop the rights of trade union organizations and their leaders), or political…It should at once be noted that the Committee on Freedom of Association and the Committee of Experts have rejected the notion that the right to strike should be confined to industrial disputes that are likely to be resolved through the signing of a collective agreement.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On political strikes, the trio, still at pages 445 – 447, are categorical when they stated that the Committee on Freedom of Association considers that strikes of a purely political nature do not fall within the scope of the principles of freedom of association; but they recognized the difficulty in drawing a clear distinction between what is political and what is, properly speaking, trade union in character. That the Committee concluded that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions. In this respect, the ILO permits workers and their organizations to express their dissatisfaction regarding the economic and social matters affecting workers’ interests in circumstances that extend beyond the industrial disputes that are likely to be resolved through the signing of a collective agreement; but here, worker action should consist merely in the expression of a protest and not be intended as a breach of the peace. To the ILO, therefore, a declaration of the illegality of a national strike protesting against the social and labour consequences of the government’s economic policy and the banning of the strike constitute a serious violation of freedom of association.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As regards the geographical scope of the strike, the ILO holds that strikes at the national level are legitimate in so far as they have economic and social objectives and not purely political ones. The allowable exceptions here are public servants exercising authority in the name of the State and workers in essential services in the strict sense of the term i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population. For these categories of workers, the limitation or total taking away of their right to strike is legitimate.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Given then the difficulty of distinguishing in practice between the political and occupational aspects of a strike since a policy adopted by a government frequently has immediate repercussions for workers and employers, the ILO’s view is that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions posed by the major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">What all of this portends is that there can be a strike for other than trade dispute reasons. The assumption of the claimants culled from questions 1 and 3 that there has to be a trade dispute between the claimants and the defendants to warrant the threat of strike by the defendants is incorrect; and I so find and hold. Accordingly, there can validly be strikes for occupational, trade union and political (in the loose sense of the word) purposes as the ILO literature shows. The question, however, is where we can situate the instant dispute i.e. the threatened strike action because the price of PMS was increased. Is the threatened strike occupational, trade union or political or a combination of all of these? There is no gainsaying that the decision by the claimants to increase the price of petrol was a socio-economic decision. In paragraphs 8 and 9 of the affidavit in support of the originating summons, the claimants averred as to the plight of Nigerians suffering untold hardship as a result of non-availability of petroleum products and the problems of hoarding, smuggling and activities of black marketers; in paragraph 12, they talked of the policy of deregulating the downstream sector of the oil industry; and in paragraph 17 they talked of the colossal loss of revenue to the nation and possibly anarchy. It is against this socio-economic policy of the claimants that the defendants threatened to go on strike and shutdown the Nigerian economy.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">There is another fact in all of this. The defendants complained that the decision to increase the price of petrol was taken in the absence of a Board for the PPPRA, a Board that the defendants are statutorily members of. See paragraphs 8, 9 and 10 of the 1<sup>st</sup> defendant’s counter-affidavit to the originating summons. This fact introduces a trade union element into the fray, something too that the ILO holds as legitimate.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In these two senses, a threatened strike against a policy of the claimants to increase the price of petrol would be legitimate for it is one seeking for a solution to a socio-economic question, something the ILO holds as legitimate so long as public servants exercising authority in the name of the State and workers in essential services in the strict sense of the term i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population are excluded. What then is my answer to question 1 of the originating summons? It is that while there is no trade dispute between the parties (a dispute over the increase in the price of PMS not being a trade dispute), it can nevertheless warrant the threat of a strike by the defendants so long as public servants exercising authority in the name of the State and workers in essential services in the strict sense of the term i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population are excluded.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I indicated earlier that question 2 of the originating summons is relevant only in the context of determining the legality or otherwise of the threatened strike. Having thus answered question 1 of the originating summons, determining whether the President of the country can give policy directives as regards the functions of the PPPRA is outside the remit of this Court. I so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Question 3 is an alternative question. It is premised on the assumption that there exists a trade dispute between the parties. I already held that there is no trade dispute between the parties given that a dispute as to an increase in the price of petrol is not a trade dispute. This means that there is no basis for answering question 3 since the assumption upon which it is based has already been dispelled. But I still need to make a point since the claimants talked of conditions for embarking on the strike not being fulfilled by the defendants. As it is today, the provision regulating strikes in Nigeria is section 30 of the TUA, as amended, a provision not even cited, not to talk of discussed, by the claimants. Of course, neither did the defendants discuss the section. Now, in 2005, when the TUA was amended, the right to strike in Nigeria was circumscribed. Section 6 of the Trade Unions (Amendment) Act 2005, which amended section 30 of the TUA by inserting into it subsections (6), (7), (8) and (9), accordingly provided as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(6) No person, trade union or employer shall take part in a strike or lockout or engage in any conduct in contemplation or furtherance of a strike or lockout unless:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(a) The person, trade union or employer is not engaged in the provision of essential services;<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(b) The strike or lockout concerns a labour dispute that constitutes a dispute of right.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(c) The strike or lockout concerns a dispute arising from a collective and fundamental breach of contract of employment or collective agreement on the part of the employee, trade union or employer,<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(d) The provisions for arbitration in the Trade Disputes Act Cap. 432, Laws of the Federation of Nigeria, 1990 have first been complied with; and<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(e) In the case of an employee or a trade union, a ballot has been conducted in accordance with the rules and constitution of the trade union at which a simple majority of all registered members voted to go on strike.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(7) Any person, trade union or employer who contravenes any of the provisions of this section commits an offence and is liable on conviction to a fine of N10,000 or six months imprisonment or to both the fine and imprisonment.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">(8) The provisions for arbitration in the Trade Disputes Act Cap. 432, Laws of the Federation of Nigeria, 1990 shall apply in all disputes affecting the provision of essential services and the determination of the National Industrial Court in all such disputes shall be final.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify;text-indent:.5in">(9) For the purpose of this Act<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(a) “Disputes of right” means any labour dispute arising from the negotiation, application, interpretation of a contract of employment or collective agreement under this Act or any other enactment or law governing matters relating to terms and conditions of employment;<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">(b) “essential Services” shall be as defined in the first schedule of the Trade Disputes Act Cap. 432, Laws of the Federation of Nigeria, 1990.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The ILO accepts that nation States can restrict the right to strike once the restrictions are reasonable. I refer once again to the trio of Bernard Gernigon, Alberto Odero and Horacio Guido in “ILO Principles Concerning the Right to Strike” (1998) 4 <i>International Law Review</i>, vol. 137 at pages 454. In this regard, the ILO accepts that the following prerequisites are necessary in order to make a strike lawful. The prerequisites are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l13 level1 lfo14"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The obligation to give prior notice.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l13 level1 lfo14"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The obligation to have recourse to conciliation, mediation and (voluntary) arbitration procedures in industrial disputes as a prior condition to declaring a strike, provided that the proceedings are adequate, impartial and speedy and that the parties concerned can take part at every stage. As for compulsory arbitration, it is only acceptable in cases of strikes in essential services in the strict sense of the term, in a case of acute national crisis, or in the public service.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l13 level1 lfo14"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The obligation to observe a certain quorum and to obtain the agreement of a specified majority.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l13 level1 lfo14"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The obligation to take strike decisions by secret ballot.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l13 level1 lfo14"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The adoption of measures to comply with the safety requirements and for the prevention of accidents.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l13 level1 lfo14"><!--[if !supportLists]-->6.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The establishment of a minimum service in particular cases.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l13 level1 lfo14"><!--[if !supportLists]-->7.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The guarantee of the freedom to work for non-strikers.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The right to strike is not absolute. Because it admits of abuses, which may take various forms e.g. its exercise by groups of workers who may be excluded from the right, or failure to comply with reasonable requirements in declaring a strike, the ILO does not accordingly condone or protect abuses to the right to strike. See Bernard Gernigon, Alberto Odero and Horacio Guido (1998) at pages 467 – 468. The claimants did not address these prerequisites for a valid strike (whether in terms of section 30 of the TUA, as amended, or the ILO prescriptions). Even the supporting affidavits of the claimants did not address the factual issues of the prerequisites. In all, there is no basis for this Court to answer question 3. As it is, any answer, one way or the other, to question 3 of the originating summons would, therefore, be presumptive since the claimants did not actually make out a case in its regard.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In virtue of all that has been said so far, in terms of the reliefs claimed by the claimants, I make the following pronouncements –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l14 level1 lfo16"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Relief 1 succeeds <i>only</i> in terms of this Court’s holding that a dispute over the increase in the price of petroleum is not a trade dispute.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l14 level1 lfo16"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->It is the holding of this Court that a dispute over the increase in the price of petroleum even though not a trade dispute can warrant a call for a nationwide strike by the defendants, subject <i>only</i> to the condition that public servants exercising authority in the name of the State and workers in essential services in the strict sense of the term i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population are excluded.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l14 level1 lfo16"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Relief 2 is outside the remit of this Court and so is not considered.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l14 level1 lfo16"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Reliefs 3, 4 and 5 cannot be granted since relief 1 partially succeeds, and the claimants have actually not made out a case for granting them.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l14 level1 lfo16"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Relief 6 has already been held to be superfluous in view of relief 3; it cannot accordingly be granted.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>