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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. O. A. Obaseki-Osaghae - Judge Hon. J. T. Agbadu-Fishim - Judge DATE: JUNE 20, 2011 SUIT NO. NIC/EN/16/2010 BETWEEN The Hon. Attorney-General of Enugu State - Claimant AND 1. National Association of Government General Medical and Dental Practitioners (NAGGMDP) 2. Dr. J. N. Chukwuani (Chairman, NAGGMDP, Enugu State Branch) (The 2nd defendant is sued for himself and as representing all the members of the NAGGMDP, Enugu State Branch (NAGGMDP Enugu Branch) - Defendants REPRESENTATION Nduka Ikeyi, Hon. Attorney-General of Enugu State, and with him are Sam Orji (State Counsel), Mrs. Nkechi Eneh and Miss Ijeoma Chukwudike, for the claimant. Ifeanyi Okumah Esq. for the defendants. JUDGMENT The claimant took out a complaint dated and filed on December 14, 2010 against the defendants praying for – (1) (A) A declaration that the 2nd defendant, and all those he represents in this action, jointly and severally, being people engaged in the provision of essential services within the meaning of section 48(1) of the Trade Disputes Act Cap. T8 LFN 2004, are prohibited from taking part in any strikes, or engaging in any conduct in contemplation or furtherance of any strike, with consequential effect of withholding or withdrawing themselves from the performance of their usual daily job and duties as employees of the claimant, by virtue of the provisions of section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004 as amended by the Trade Unions (Amendment) Act No. 17 of 2005. AND (B) A declaration that the notice of strike dated 2nd December 2010 and served on the claimant through the State Commissioner for Health by the 2nd defendant, threatening that he, and those he represents, shall embark on strike by 22nd December 2010, and any other such notice as may subsequently be issued by any of them in contemplation of strike while section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004 as amended by the Trade Unions (Amendment) Act No. 17 of 2005 remains in force is unlawful. (2) An order of perpetual injunction restraining the 2nd defendant, and all those he represents in this action, jointly and severally, from taking part in any strike, or engaging in any conduct in contemplation or furtherance of any strike, as employees of the claimant, on or about 22nd December 2010 or on any other date in violation of the provisions of section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act No. 17 of 2005. (3) Such further or other order(s) as to the Court may seem fit in the circumstance. Accompanying the complaint are a statement of facts, an affidavit in verification of the claimant’s complaint with Exhibit HAG 1 attached, a list of claimant’s witnesses and a list of documents to be relied on by the claimant. The defendants entered appearance by filing a memorandum of conditional appearance dated 17th January 2011 but filed on 18th January 2011. Also filed by the defendants is their statement of defence dated 17th January 2011 but filed on 18th January 2011. Accompanying the defence processes are the list of witnesses to be called and the list of documents to be relied upon. Both parties then agreed to argue the case on record thus dispensing with the need to call witnesses. Consequently, the court directed that parties file and serve their respective written addresses. The claimant’s written address is dated 21st March 2011 but was filed on 23rd March 2011. The defendant’s reply written address dated 7th April 2011 was filed on 8th April 2011. The claimant’s reply on points of law is dated and filed on 14th April 2011. From the statement of facts establishing the cause of action, the claimant pleaded as follows – 1. The claimant is the Chief Law Officer of Enugu State of Nigeria (the “State”), and the State’s alter ego. The state is the employer of the 2nd defendant and all those he represents in this action. 2. The 1st defendant purports to be a trade union within the meaning of section 1(1) of Trade Unions Act Cap. T14 LFN 2004, whose membership include the general medical and dental practitioners in the employment of the claimant i.e. the 2nd defendant and all those he represents in this action. 3. The 2nd defendant is a staff of the claimant, the Chairman of NAGGMDP Enugu Branch and a signatory to the notice of strike dated 2nd December, 2010, and served on the claimant through the State Commissioner for Health by the 2nd defendant, threatening that he and all those he represents in this action will embark on strike by 22nd December 2010 (the “Notice”). 4. The threatened strike is meant to compel the implementation of the Consolidated Medical Salary Structure (CONMESS) by the [claimant]. 5. The said COMESS is a product of negotiations between the Nigeria Medical Association (NMA) to which the defendants are affiliated and the Federal Government of Nigeria. The claimant did not negotiate the said CONMESS with the defendants. 6. The Government of Enugu State is ready and willing to negotiate the 2nd defendant’s conditions of service in its employment provided that such negotiations and any disagreement that may arise in the course thereof are dealt with in accordance with the law. 7. The 2nd defendant and all those he represents in this action are persons engaged in the provision of essential services within the meaning of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act No. 17 of 2005; accordingly they are prohibited from embarking on strike/industrial action. The claimant then proceeded to make the claims reproduced above. The 13-paragraphed affidavit in verification of the claimant’s complaint sworn to by Charles Udoh, litigation secretary in the chambers of the Attorney-General of Enugu State and which was filed as an accompanying process to the statement of facts in especially paragraphs 3 – 9 deposed to facts that are essentially the same as those pleaded in the statement of facts. However, in paragraphs 10 – 12, Charles Udoh additionally deposed as follows – 10. Unless the defendants are restrained by this Court, they will continue in their habit of embarking on illegal industrial actions whenever they want to as a tool of blackmail and intimidation. On 13th December 2010 I was informed by Sam Orji Esq. of the Chambers of the claimant, and I verily believe him, that it will occasion irreparable damage on the [claimant] if the [defendants] should embark on strike as threatened. 11. It is in the interest of justice and of the public that the claimant’s claims be granted. 12. The claimant undertakes to indemnify the defendants should they suffer any loss on account of the grant of this application. The defendants reacted by filing a statement of defence wherein they pleaded as follows – 1. Save and except as is hereinafter specifically admitted, and defendants deny each and every material allegation of facts contained in the complaint as if each was set out and traversed seriatim. 2. In answer to paragraph 2 of the complaint, the 1st defendant denies that it is a trade union as contemplated within the meaning of the Trade Unions Act Cap. T14 LFN 2004 listed pursuant to the 3rd Schedule to the Trade Unions Act Cap 14 T LFN, 2004. The 1st defendant is a body of registered medical and dental practitioners engaged in the services of the various State Governments all over the Federation in Nigeria. It is an affiliate of the Nigerian Medical Association (NMA for short) which is the parent organization of all professional doctors. 3. Paragraphs 3 and 4 of the complaint are correct. 4. Paragraph 5 of the complaint is denied. The claimant was a party to the negotiations which included the Federal Government and the NMA before the Consolidated Medical Salary Structure (CONMESS for short) was adopted for medical doctors. Each State was to go back and implement it. 5. In compliance the Federal Government thereafter issued a circular dated 29th September 2009 in respect of the medical/dental practitioners employed in the Federal Health Institutions. The application was made to take effect from 1st January, 2010. The defendants shall rely on the said circular at the trial. 6. As a result of the agreement majority of the states in Nigeria like Borno, Delta, Bayelsa, Lagos, Gombe, Kogi, Kano and Ekiti negotiated with the employees engaged in their medical services and started the implementation of the new salary structure. A copy showing compliance by Borno State Government as published in the National Daily Newspaper is hereby pleaded. 7. After waiting for the claimant to call the members of the 1st defendant Enugu State branch for a dialogue over the new salary structure the 2nd defendant wrote several letters and made representations to the claimant for the implementation. The claimant never replied the letters. These include letters dated 30th April 2010, 5th July 2010, 10th August 2010 and 28th October 2010. The defendants plead the said letters and give the claimant notice to produce the original at the trial. 8. On 16th August 2010, the defendants gave to the claimant a notice of strike which was withdrawn by another letter dated 6th September 2010 following the intervention of the NMA to further negotiate with the various state governments that were yet to implement the approved CONMESS, the claimant inclusive. The defendants plead the letters and give to the claimant notice to produce the original at the trial. 9. The NMA equally wrote several letters to the claimant in respect of the subject matter, that is, implementation of CONMESS, all of which were also ignored by the claimant. These include letters dated 18th August 2010, 23rd September 2010, 17th December 2010, and 10th January 2011 respectively. The defendants plead the letters and give to the claimant notice to produce the original at the trial. 10. The correspondences of the defendants which were written in compliance with procedure laid down by law for amicable resolution of disputes were never replied to and/or any action taken on them by the claimant. By a letter dated 2nd December 2010 the 2nd defendant gave 21 days’ notice of strike to the claimant for failing to implement CONMESS. The defendants plead the letter and give to the claimant notice to produce the original at the trial. 11. Instead of addressing the issues as provided by the law the claimant rushed to this court and filed this suit while surreptitiously obtaining an interim order against the defendants without disclosing the true facts to the court. 12. Paragraph 6 of the complaint is not true. All the entreaties the defendants made to the claimant with a view to getting it to come for a dialogue towards resolution of the dispute as prescribed by law were rebuffed. The claimant clearly showed its unwillingness to take any step towards the resolution of the dispute and is more interested in using the judicial system to frustrate its employees’ legitimate demands rather than sitting down with them to resolve issues. 13. Notwithstanding the defendants are still willing to enter into negotiation with the claimant/applicant but states that it will be safer and in the interest of justice if the court appoints a conciliator or mediator or arbitrator as envisaged by the Act. 14. Paragraph 7 of the complaint is denied and states that it is an aberration to call the defendants a trade union. It is also incorrect to state that the defendants are prohibited from embarking on a strike/industrial action. The defendants do not come within the meaning and intendment of the Trade Unions as contemplated under the 3rd Schedule to the Trade Unions Act Cap. T14 LFN 2004 and are entitled to embark on strike to press its legitimate demands. 15. The defendants will at the trial contend that the court lacks jurisdiction to entertain this suit as the claimant did not fulfill the mandatory conditions of the Trade Disputes Act before instituting his suit. 16. The claimant is, therefore, not entitled to the reliefs claimed in paragraph 8 of the complaint and the defendants will at the trial of this suit urge the court to dismiss same with substantial costs since it is frivolous, premature, vexatious, and an attempt to perpetually frustrate the defendants from pressing their legitimate demands. In the claimant’s written address, the claimant first reiterated the reliefs it is praying for from the court and then proceeded to recount the statement of facts it pleaded. To the claimant, consequent to the admission of paragraphs 3 and 4 of the statement of facts by the defendants, there is no material fact in issue between the parties to this suit. That the issue between the parties is, therefore, limited to the question of the correct interpretation of the provisions of section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act No. 17 of 2010, as it affects the defendants in their employment relationship with the claimant. That the live issues in this suit are, therefore, essentially issues of law. The claimant then framed two issues for determination, namely – (a) Whether the 2nd defendant and those he represents are persons engaged in essential service within the meaning of the Trade Disputes Act and the Trade Unions Act, as amended by the Trade Unions (Amendment) Act No. 17 of 2005; and (b) If the answer to issue (a) is ‘yes’, whether the 2nd defendant and those he represents are as such prohibited from taking part in any strike, or engaging in any conduct in contemplation or furtherance of any strike, by the provisions of section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act No. 17 of 2005. Regarding issue (a), the claimant referred to section 31(9)(b) of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act No. 17 of 2005 which provides that “essential services” for the purpose of the Trade Unions Act shall be as defined in the First Schedule to the Trade Disputes Act Cap. T8 LFN 2004. That the First Schedule to the Trade Disputes Act then defines “essential services” under three (3) district paragraphs each representing a separate group of services. The claimant went on to submit that the 2nd defendant and those he represents are captured by two (2) out of the three (3) defining definitive paragraphs of the First Schedule as those engaged in “essential service”. The two (2) paragraphs are paragraphs 1 and 2 of the First Schedule. That paragraph 2(d) of the First Schedule provides that “essential service” include – any service established, provided or maintained by the Government of the Federation or a State, by a local government council, or any municipal or statutory authority, or by private enterprise for, or in connection with…hospitals, the treatment of the sick, the prevention of disease…. To the claimant, it is self-evident on all the processes filed by both parties to this suit that the 2nd defendant and those he represents are employees of Enugu State Government working in the State’s health sector. They are medical and dental practitioners employed by the State as such and working as such. In this regard, the claimant invited the Court to note the description of the 1st defendant in paragraph 2 of the statement of defence as “a body of registered medical and dental practitioners engaged in the services of the various State Governments all over the Federation in (sic) Nigeria” and the fact that the 2nd defendant and those he represents are all members of the 1st defendant in Enugu State. That there is no gainsaying that the work of a medical practitioner employed and working in his capacity as a medical practitioner is invariably connected with “hospitals, the treatment of the sick, or the prevention of disease”; so also the work of a dental practitioner employed and working in his capacity as such. The claimant continued that it is worthy of note that the provisions of paragraph 2(d) of the First Schedule classify everybody whose work is connected with “hospitals, the treatment of the sick, or the prevention of disease” as a person engaged in the provision of essential services notwithstanding whether the person’s work establishment is maintained by the Government of the Federation or a State, a local government council, municipal or statutory authority, or even by private enterprise. That on the strength of the foregoing, it goes without saying that the 2nd defendant and those he represents are persons engaged in essential service within the meaning of the Trade Unions Act. Continuing, the claimant submitted that on the other hand, assuming without conceding that the 2nd defendant and those he represents are not captured as persons engaged in essential services by paragraph 2(d) of the First Schedule, they are captured as such by paragraph 1 of the First Schedule. Paragraph 1 of the First Schedule defines “essential services” to include “the public service of the Federation or of a State”. However, that there is no guidance in the Trade Disputes Act as to what constitutes the public service of a State; neither does the Interpretation Act Cap. 123 LFN 2004 define “public service”. But section 18 of the Interpretation Act defines the expression “public officer” to mean a member of the public service of the Federation or of a State “within the meaning of the Constitution of the Federal Republic of Nigeria 1999”. It is, therefore, obvious that the Interpretation Act, and by necessary implication the Trade Disputes Act, adopts the meaning accorded the phrase “public service” by the Constitution for its purposes. That even if this were not so, the definition given to the phrase would nevertheless have been applicable to the Trade Unions Act and the Trade Disputes Act since the provisions of the Constitution override any inconsistent provision in any Act of the National Assembly. So in whatever way one looks at it, what constitutes the public service of the State is as defined in the Constitution. Section 318 of the Constitution defines “public service of a State” to mean service of the State in any capacity in respect of the Government of the State and includes service as “staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest”. To the claimant, the 2nd defendant and those he represents are employees of Enugu State Government. Accordingly, the government of the State does not only have controlling shares or interest in the various enterprises in which the 2nd defendant and those he represent work, the government of the state is the sole proprietor of those enterprises. The claimant went on that for whatever it is worth, the position of the 2nd defendant and those he represents may be considered from another perspective. In this regards, the claimant noted that the Trade Disputes Act, in contradistinction to the Interpretation Act, defines “public officer” as a member of the “civil service of the Federation or of a State”. In effect, that one must again fall back on the text of the Constitution to ascertain what constitutes the “civil service of a State”. Section 318 of the Constitution defines “civil service of a State” to mean “service of the Government of a State in civil capacity as staff of the office of the Governor, Deputy Governor or a ministry or department of the Government of the State assigned with the responsibility for any business of the Government of the State”. That on the whole, therefore, whatever way one may look at the issue, the 2nd defendant and those he represents are persons engaged in essential service within the meaning of Trade Disputes Act and the Trade Unions Act, as amended by the Trade Unions (Amendments) Act, No. 17 of 2005. The claimant then urged the Court to so hold, and to answer issue (a) in the affirmative. On issue (b), the claimant referred to section 31(6)(a) of the Trade Unions Act which provides that – No person, trade union or employer shall take part in a strike or lockout or engage in conduct in contemplation or furtherance of a strike or lockout unless the person, trade union or employer is not engaged in the provision of essential services. To the claimant, the section makes it a condition precedent for the existence of a right to take part in a strike or lockout that the person, trade union or employer concerned is not engaged in the provision of essential service. That, as already pointed out in the discussion on issue (a) above, “essential services” for the purposes of the Trade Unions Act is as defined in the First Schedule to the Trade Disputes Act. The claimant proceeded that they have demonstrated beyond dispute that the 2nd defendant and those he represents are persons engaged in the provision of essential services. It follows, therefore, that for as long as the provisions of section 31(6)(a) of the Trade Unions Act remain in force, the 2nd defendant and those he represents has no lawful right to go on strike. The claimant then urged the Court to so hold, and to also answer issue (b) in the affirmative. In conclusion, the claimant submitted that – (a) The 2nd defendant and those he represents are persons engaged in essential service within the meaning of the Trade Disputes Act and the Trade Unions Act as amended by the Trade Unions (Amendment) Act No. 17 of 2005; and (b) The 2nd defendant and those he represents are as such prohibited from taking part in any strike, or engaging in any conduct in contemplation or furtherance of any strike, by the provisions of section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act, No. 17 of 2005. The claimant went on to urge the Court to so hold and to give judgment to the claimant in terms of the reliefs claimed. In their written address in reaction to that of the claimant, the defendants first reiterated the claims of the claimant and then submitted that in their statement of defence, they had denied being a trade union within the meaning of the Trade Unions Act and the amendment there to, referring to paragraphs 2 and 14 of the statement of defence. That the claimant is also aware that the defendant is not a trade union by the use of the word that the defendants purport to be a trade union in its pleadings, referring to paragraph 2 of the claimant’s statement of facts. The defendants then contended that they are entitled to go on strike. Thereafter, the defendants framed two issues for the determination of the court. They are – (a) Whether the defendants especially the 1st defendant is a trade union within the meaning of the Trade Unions Act to come within section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004, as amended by Trade Unions (Amendment) Act No. 17 2005. (b) Whether the defendants, especially the 2nd defendant, is entitled to embark on a strike. On issue (a) i.e. whether the defendants especially the 1st defendant is a trade union within the meaning of the Trade Unions Act to come within section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004, as amended by Trade Unions (Amendment) Act No. 17, 2005, the defendants submitted that the answer is ‘no’. That it is not in doubt, as the claimant has taken great pains to show, that the 2nd respondent and those he represents are all in the civil/public service of the claimant. It is also not in dispute that by the nature of their job, they fall within those categorized as essential services by virtue of the 1st Schedule to the Trade Disputes Act, i.e. paragraph 2(d) of the Trade Disputes Act Cap. T8 LFN; but that the issue is whether section 30(9)(b) of the Trade Unions Act Cap. T14 LFN 2004, as amended by Trade Unions (Amendment) Act, No. 17, 2005 which provides that essential services for the purposes of the Trade Unions Act shall be as defined in the First Schedule to the Trade Disputes Act. Cap. T8 LFN 2004 can be any extension apply to the defendants taking into consideration the provision of the 3rd Schedule Parts A, B and C of the Trade Unions Act which equally enumerates the list of trade unions that fall within the essential services workers and whether section 30(6)(a) of the amendment Act to the Trade Unions Act can apply to the defendants especially the 2nd defendant. The defendants then submitted that the Trade Disputes Act makes provisions for settlement of disputes between employers of labour and employees, and between employees which is connected with employment or non-employment and the terms of employment or condition of work, referring to Abdul Raheem v. Orauntoba-Oja [2007] All FWLR (Pt. 354) 296 – the defendants’ counsel could not even give the proper name of the case he cited. To the defendants, the Trade Disputes Act has a wider application in relation to the settlement of disputes which is not limited to members of trade unions and its members. That ‘trade unions’ on the other hand has the meaning ascribed to it under section 1(1) of the Trade Unions Act Cap. T14 LFN 2004. That it also has requirements for registration before any group can be accorded the status of a trade union under the law and be bound by the provisions of the Trade Unions Act. That in amplifying this argument with a view to interpretation of a trade union as defined under section 1(1) of the Trade Unions Act, section 54 of the Trade Unions Act interprets a “registered body” to mean ‘a trade union, federation of trade unions or the central labour organization registered under the Act’. Also that under the 3rd Schedule to the Act, the list of trade unions registered and recognized under the law are enumerated. The defendants then submitted that they do not come within the meaning of a trade union since they are not on that list and are not registered under the Act. To the defendants, the law is that the express mention of a thing in a statute is the implied exclusion of all other things not so expressly mentioned, referring to Ehuwa v. INEC [2006] 28 NSCQR. 551. That the said 3rd Schedule Parts A, B and C listed recognized trade unions in Nigeria which include those workers that fall within those engaged in essential services, referring to nos. 4 and 5 of the list in Part B which does not in any way or by any extension include the defendants. That in interpreting section 30(9)(b) of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act No. 17 2005, which provides that essential services for the purposes of the Trade Unions Act shall be as defined in the First Schedule to the Trade Disputes Act Cap. T8 LFN 2004, the 3rd Schedule Parts A, B, and C of the Trade Unions Act shall be read together with the 1st Schedule to the Trade Disputes paragraph 2(d). The meaning to be gathered is that essential services as it applies to the Trade Unions Act has the same meaning as defined in the 1st Schedule paragraph 2(d) of the Trade Disputes Act and is applicable to those trade unions engaged in provision of essential services which are contained in the list of recognized trade unions in the 3rd Schedule to the Trade Unions Act. To the defendants, this simply means that the amendment has now imported the meaning of essential services as contained in the 1st Schedule to the Trade Disputes Act into the Trade Unions Act which is applicable to those workers engaged in essential services in the list of trade unions in the 3rd Schedule Parts A, B and C and not the other way round as the learned Attorney-General tried to imply. The defendants further submitted that this being the case, the only essential services workers prohibited from going on strike within the meaning of section 30(6)(a) and section 30(9)(b) of the Trade Unions Act Cap. T14 LFN 2004, as amended by Trade Unions (Amendment) Act No. 17, 2005 if read together with the 3rd Schedule to the Trade Unions Act Cap. T14 LFN 2004 and the 1st Schedule to the Trade Disputes Act, paragraph 2(d), are those essential services contained on the list of trade unions as contained in the said 3rd Schedule Parts A, B and C of the Trade Unions Act Cap. T14 LFN 2004 as in nos. 4, 5, 7, etc in Part B of the list Moreover, that by the wording of the Amendment Act, the essential service is for the purposes of the “Trade Unions Act” and not the Trade Disputes Act. The defendants then submitted that since they are not contained or contemplated within those falling under the essential services in the list of trade unions as contained in the 3rd Schedule Parts A and B or even C, the prohibition on going on strike cannot affect them. Moreover, the defendants have stated categorically that they are not a trade union but a body of registered doctors and as such cannot be bound by the Trade Unions Act or any amendment thereto. The defendants continued that the amendment of the Trade Unions Act by the Trade Unions (Amendment) Act No. 17 of 2005 can only amend the Trade Unions Act; it cannot by any extension purport to equally amend the Trade Disputes Act as the claimant is arguing and its application can only extend to matters as provided in the Trade Unions Act since the amendment is expressed to amend the Trade Unions Act and no more. That if the Legislature intends to amend the Trade Disputes Act or make any provision of the Trade Unions Act to be applicable to the Trade Disputes Act, they would say so in clear terms. That once again the express mention of a thing in a statute is the implied exclusion of all the others, referring to Ehuwa v. INEC (supra). That it should also be noted that the Trade Disputes Act is not made subject to the Trade Unions Act to make its provisions over-ride those of the Trade Disputes Act. These are two distinct and separate laws. Based on the foregoing, the defendants urged that the arguments of the claimant must fall. Regarding issue (b) i.e. whether the defendants, especially the 2nd defendant is entitled to embark on a strike, the defendants answered in the affirmative, referring to section 41(1) and (2) of the Trade Disputes Act Cap. T8 LFN 2004. That the defendants are entitled to commence on strike after complying with 15 days notice of their intention to do so to their employer (in this case the complainant). That the defendants complied with these provisions, referring to paragraphs 7, 8, 9 and 10 of the statement of defence. The defendants then reiterated that they are not a trade union and as such, cannot come under or be bound by the provisions of the Trade Unions Act or the amendment thereto since they do not fall within those contemplated by the Act as a trade union. That an amendment to the Trade Unions Act cannot be expressed to apply to the Trade Disputes Act except it was made in clear words and terms. On the other hand, that the Trade Disputes Act does not have any provision prohibiting strike actions, what it has is as contained in section 41(1) and (2) which gives guidelines as to what any person intending to embark on a strike should as a condition precedent. On the issue of injunction as a relief claimed by the claimant, the defendants urged the court to dismiss same in view of the fact that the defendants are not a trade union as canvassed by the complainant and as envisaged under the Trade Unions Act. The defendants further urged the court to take note of all the arguments of the defendants in support of this fact. That notwithstanding the above, an order of perpetual injunction will surely go against the intendment of the provisions of the Trade Disputes Act which provides for strike action or lockout once the requisite notice is given. In conclusion, the defendants urged the court to dismiss this suit with substantial costs since the claimant has failed to prove his claim. The claimant’s reply on points of law raised three issues for the determination of the court. They are – (a) Whether the issue of ‘whether the 1st defendant is a trade union within the meaning of the Trade Unions Act to come within section 31(6)(a), Trade Union Act Cap. T14 LFN 2004, as amended by Trade Unions (Amendment) Act No. 17, 2005’ does arise for determination in view of the claimant’s claim. (b) Whether the 1st defendant is in fact a trade union under the Trade Unions Act. (c) Whether the defendants, jointly and severally, are not all bound by the Trade Unions Act. The claimant then submitted that the issue of “whether the 1st defendant is a trade union within the meaning of Trade Unions Act to come within section 31(6)(a) of the Trade Unions Act Cap. T14 LFN 2004, as amended by the Trade Unions (Amendment) Act No. 17, 2005” does not arise for determination in view of the reliefs claimed by the claimant. The reason is that a resolution of that issue one way or the other will have no effect or bearing on the pertinent questions of whether the defendants are persons engaged in the provision of essential services and whether they are prohibited from going on strike. That the issue is absolutely irrelevant. However, that it is out of abundance of caution that we now proceed to address same under issue (b). Regarding issue (b), the claimant submitted that for the purposes of the Trade Unions Act, section 1(1) defines “trade union” as – any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether its purposes do or do not include the provision of benefits for its members. That it is obvious from the foregoing that the ingredients that make a group a trade union are (1) that its members are either workers or employers, and (ii) that its purpose is to regulate the terms and conditions of employment of workers. The claimant then submitted that 1st defendant meets both requirements. Its members are all employees of the various tiers of Government in the Federation and its purpose is to regulate the terms and conditions of workers, particularly its members. Indeed that is the reason they have been calling for strike, to compel the claimant to implement the CONMESS. The claimant continued that the contention of the defendants that the 1st defendant is not a trade union under the Trade Unions Act merely because it is not so registered is misconceived. Registration under the Trade Unions Act does not make a body a trade union but enables it to function as such. Hence section 2(1) thereof says that “a trade union shall not perform any act in furtherance of the purposes for which it has been formed unless it has been registered under the Act.” Indeed the language of section 2(1) underscores the point that formation of a trade union is complete prior to its registration under the Act. On the point being made by the defendants as to the list of trade unions contained in Parts A, B and C of the Trade Unions Act being those to whom the Act applies, the claimant submitted that this is another misconception. That the list is actually of those unions recognized by the Act as deemed to be registered under the Trade Unions Act. On issue (c), the claimant submitted that the provisions of the Trade Unions Act is binding on each and all of the defendants both as a group of workers and as individual workers. In this regard, the claimant commended to the court the language of section 31(6)(a) of the Trade Union Act which provides that – No person, trade union or employer shall take part in a strike or lockout or engage in conduct in contemplation or furtherance of a strike or lockout unless the person, trade union or employer is not engaged in the provision of essential service. The claimant submitted that the underlined expression makes it certain that the provision is meant to apply to both individuals and groups. On the suggestion made by the defendants that the application of the Trade Unions Act is limited to those unions who are actually registered under that Act and the members thereof, the claimant submitted that this is yet another misconception. The fact is that the Trade Unions Act applies to all those, unions and individuals alike, engaged in any employer/employee relationship particularly as it concerns their right to embark on strikes or lockouts. Finally, on the tacit reference made to section 41 of the Trade Disputes Act by the defendants as empowering them, as those engaged in the provision of essential services, to go on strike upon service of fifteen 15 days’ notice on their employers, the claimant submitted that provision must be taken to have been impliedly repealed by section 31(6)(a) of the Trade Unions Act, as amended by the Trade Unions (Amendment) Act 2005 being a provision on the same point made later in time. That it is trite law that in the construction of statutes, every statute made by the same legislative authority on a subject matter must be construed together, not in isolation, to ascertain the true position of the law on the subject matter. That section 41 of the Trade Disputes Act was part of the original text of that statute enacted in 1978, while section 31(6)(a) of the Trade Unions Act, as amended by the Trade Unions (Amendment) Act, 2005, was enacted in 2005. In conclusion, the claimant contended that it is surprising that it should be the defendants’ counsel that is vehemently contending that the 1st defendant is not a trade union, much less a registered trade union under the Trade Unions Act. That one wonders whether he is aware of the weight of such a contention if it is to be accepted in view of the various provisions of the Trade Unions Act making it criminal for any trade union to perform any act in an effort to regulate the terms and conditions of employment of workers unless such trade union is registered under the Trade Unions Act. Be that as it may, the claimant stated that they have demonstrated above that the 1st defendant is indeed a trade union under the Trade Unions Act, though an unregistered trade union. That they have also demonstrated that the defendants are all, jointly and severally, subject to the provisions of the Trade Unions Act notwithstanding the non-registration of the 1st defendant under the Trade Unions Act. In considering the processes and submissions of the parties in this suit, a number of preliminary issues must be cleared. The concluding remark of the claimant in the reply on points of law is to the effect that ‘the 1st defendant is indeed a trade union under the Trade Unions Act, though an unregistered trade union’. By law, a body cannot be a trade union if it is not registered as one by the Registrar of Trade Unions. When bodies seeking to be registered as trade unions are permitted by section 2(1) of the Trade Unions Act to do such things as are necessary to have them registered as trade unions, they do not thereby become trade unions as the argument of the claimant seem to suggest. Even at this, there must be evidence that the body seeking registration as a trade union actually applied to be registered as one. There is no such evidence before this court. Indeed, the defendants acknowledged in paragraphs 2 and 14 of their statement of defence as well as their written address that the 1st defendant is not a registered trade union. We agree with them on this score. Not being one of the unions listed in the Trade Unions Act, and having not shown to this court that the 1st defendant was subsequently registered by the Registrar of Trade Unions, there is nothing to indicate that the 1st defendant is legally a trade union under the Trade Unions Act. Secondly, can a party show disdain for the judicial process and still call upon that process for succor? In paragraph 12 of the statement of defence, the defendants showed their disdain for the judicial process in the following words – The claimant clearly showed its unwillingness to take any step towards the resolution of the dispute and is more interested in using the judicial system to frustrate its employees’ legitimate demands rather than sitting down with them to resolve issues. Yet in paragraph 13 the defendants could call on the same judicial process to come to their aid in the following words – Notwithstanding the defendants are still willing to enter into negotiation with the claimant/applicant but states that it will be safer and in the interest of justice if the court appoints a conciliator or mediator or arbitrator as envisaged by the Act. It does not lie on parties to talk from both sides of the mouth. Having established that the 1st defendant is not legally a trade union, the issue that calls for determination is whether it can go on strike or even threaten to go on strike. All the submissions of the parties revolve around this sole issue. The defendants think that because they are not a trade union, the provisions of the Trade Unions Act are inapplicable to them; and if the Trade Unions Act is inapplicable to them, then the provisions regulating the right to embark on a strike cannot apply to them. To buttress their point, they cited the Trade Disputes Act in support, an Act that to them is independent of the Trade Unions Act. On the other hand, the claimant argues that although the defendants are not registered as a trade union, they are nevertheless one for the purpose of the regulation of the right to strike or threaten one. In any event, that the defendants are involved in essential services and as such are barred from striking or threatening to strike. One of the incidents/benefits of unionization or unionism is the right to strike. The Trade Unions Act envisages that this right is exercisable only by bodies registered as trade unions. That is why an elaborate procedure is provided for it under the Trade Unions (Amendment) Act 2005. The right is not just given to a group of workers but to a group of workers who are organized as a trade union. According to the learned author, A. C. L. Davies – Perspectives on Labour Law (Cambridge University Press), 2004 at page 220, one perspective of the right to strike is that it is generally linked to collective bargaining and so it is regarded as a collective rather than an individual right. It is not a right which can be exercised by one individual on his or her own; it must be exercised by a trade union, or by workers acting on the instructions of their trade union. The rationale for this is that collective bargaining by its very definition involves bargaining by a union or group of workers rather than by an individual. All of these issues are reinforced by the International Labour Organisation (ILO). In the ILO publication, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (1996), Fourth (revised) edition at paragraph 131 at page 29, it is stated that – The right to strike and to organize union meetings are essential aspects of trade union rights, and measures taken by authorities to ensure the observance of the law should not, therefore, prevent unions organizing meetings during labour disputes. The tenor of the Trade Unions Act generally follows this pattern. This means that once workers are not registered as a trade union under the Trade Unions Act, they cannot enjoy the benefits enjoyed by trade unions. It is in this sense that section 2 of the Trade Unions Act bars anybody not registered as a trade union from doing those things that only trade unions can do; and strike is one such thing. It is as a consequence of the fact of registration of a trade union that sections 23 and 24 of the Trade Unions Act confer on trade unions immunity from action in circumstances that would otherwise have been unlawful and/or tortious. Not being a trade union, therefore, the 1st defendant together with its Chairman (the 2nd defendant) and all its members cannot embark on any industrial action (including strikes) or even threaten one. In fact by section 2(3) of the Trade Unions Act, the defendants stand the risk of criminal prosecution for breach when in paragraph 10 of their statement of defence they admitted that by a letter dated 2nd December 2010 the 2nd defendant gave 21 days’ notice of strike to the claimant for failing to implement CONMESS. Aside from not being a trade union, there is the second issue of whether the defendants are engaged in essential services and for which they cannot embark on any strike action. Section 31(6)(a) of the Trade Unions Act provides that 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 the person, trade union or employer is not engaged in the provision of essential services. By section 31(9)(b), “essential services” shall be as defined in the First Schedule of the Trade Disputes Act Cap. T8 Laws of the Federation of Nigeria 2004. Section 48 of the Trade Disputes Act 2004, the definition section, defines “essential service” to mean any service mentioned in the First Schedule to the Trade Disputes Act. The First Schedule to the Trade Disputes Act then goes on to stipulate the services that qualify as essential services. Paragraph 2(d) of the First Schedule to the Trade Disputes Act is pertinent for present purposes. By that paragraph, “any service established, provided or maintained by the Government of the Federation or a State, by a local government council, or any municipal or statutory authority, or by private enterprise…for, or in connection with, the burial of the dead, hospitals, the treatment of the sick, the prevention of disease, or any of the following public health matters, namely sanitation, road-cleansing and the disposal of night-soil and rubbish” will qualify as essential service. What this means is that workers engaged in any of these services cannot embark on any strike action. The concept of essential services has not been espoused under our labour jurisprudence beyond the statutory provisions on it. Since section 7(6) of the National Industrial Court Act permits this court to have regard to international best practice when adjudicating, it may be worth the while to take a look at the concept as espoused under ILO jurisprudence. The trio of Bernard Gernigon, Alberto Odero and Horacio Guido in “ILO Principles Concerning the Right to Strike” (1998) 4 International Law Review, vol. 137 at page 450 have this to say regarding the concept of essential services – Over time, the supervisory bodies of the ILO have brought greater precision to the concept of essential services in the strict sense of the term (for which strike action may be prohibited). In 1983, the Committee of Experts defined such services as those “the interruption of which would endanger life, personal safety or health of the whole or part of the population”…. Clearly, what is meant by essential services in the strict sense of the term “depends to a large extent on the particular circumstances prevailing in a country”; likewise, there can be no doubt that a “non-essential service may become essential if a strike lasts beyond a certain time or exceeds beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population”…. Thus, the Committee has considered to be essential services in the strict sense, where the right to strike may be subject to major restrictions or even prohibitions, to be: the hospital sector; electricity services; water supply services; the telephone service; air traffic control. This ILO conception of essential services approximates with the notion under Nigerian law in classifying the hospital sector as an essential service. It is not in doubt that the defendants are not a trade union. It is equally not in doubt that they are engaged in services for, or in connection with, hospitals and the treatment of the sick as per paragraph 2(d) of the First Schedule to the Trade Disputes Act – the defendants having admitted this fact in paragraphs 2 and 3 of their statement of defence. The argument of the defendants that the provisions of the Trade Disputes Act must be read as separate from those from the Trade Unions Act cannot be tenable because the Trade Unions Act defines the term essential services by reference to the Trade Disputes Act. Equally not tenable is the argument of the defendants that because they are not a trade union, they are not bound by the Trade Unions Act. This is because the provisions of the Trade Unions Act are meant to regulate the activities of not only bodies registered as trade unions but those who are not so registered but are keen on doing things that only registered trade unions can do such as the defendants. So when the defendants acknowledged in paragraph 10 of their statement of defence that the 2nd defendant vide a letter of 2nd December 2010 gave 21 days’ notice of strike to the claimant, it is an admission of the fact of doing a thing that only registered trade unions are permitted to do. Not only is this unlawful, it is criminal. For all the reasons stated, the claims of the claimant must succeed. We consequently hold as follows – 1. The 1st defendant is not a trade union recognizable as such under the Trade Unions Act. Not being a trade union, the 2nd defendant cannot represent it in the capacity of a trade union. This means that the defendants cannot do such things that only trade unions can do, including strike action or the threat of strike action. 2. The defendants are engaged in the provision of essential services within the meaning of the term under the Trade Disputes Act. Consequently, the defendant cannot embark on any strike action or threaten to embark on one. 3. The notice of strike dated 2nd December 2010 and served on the claimant through the State Commissioner for Health by the 2nd defendant, threatening that he, and those he represents, shall embark on strike by 22nd December 2010, and any other such notice as may subsequently be issued by any of them in contemplation of strike is unlawful. Since this court has powers under sections 14, 16 and 19 of the National Industrial Court Act 2006 to grant declaratory and injunctive reliefs, and do all such things as are necessary to resolve a labour dispute and stop multiplicity of suits, we hereby order as follows – a) The 2nd defendant, and all those he represents in this action, jointly and severally, being people engaged in the provision of essential services are prohibited from taking part in any strikes, or engaging in any conduct in contemplation or furtherance of any strike, with consequential effect of withholding or withdrawing themselves from the performance of their usual daily job and duties as employees of the claimant. b) The defendants are hereby restrained from taking part in any strike, or engaging in any conduct in contemplation or furtherance of any strike, as employees of the claimant, on or about 22nd December 2010 or on any other date. Judgment is entered accordingly. We make no order as to cost. ………….………………………….. Hon. Justice B. B. Kanyip Presiding Judge ………………………………………. ...…………………………………. Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge