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IN THE NATIONAL INDUSTIHAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Judge Hon. Justice M. B. Dadda Judge DATE: JULY 15, 2008 SUIT NO. N1C13612007 BETWEEN Oyo State Government. …………………………………………………… Applicant AND 1. Alhaji Bashir Apapa (Chairman, Nigeria Labour Congress, Oyo State Chapter). 2. Nigeria Labour Congress, Oyo State. 3. Alhaji N. O. Arowolo, 4. Comrade Bayo Ajayi, Chairman and Secretary, Committee of Industrial Unions in the Public Service of Oyo State for themselves and on behalf of all Employees of the Oyo State Government and the Trade Unions in the Public Service of Oyo State, namely: i. Nigeria Union of Teachers, Oyo State Chapter ii. Nigeria Union of Local Government Employees (NULGE), Oyo State Chapter. iii. Medical and Health Workers Union of Nigeria, Oyo State Chapter iv. National Union of Printing, publishing & Paper Product, Oyo State Chapter v. Nigeria Civil Service Union, Oyo State Chapter vi. Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Service Employees, Oyo State Chapter vii. Agricultural and Allied Workers Union of Nigeria, Oyo State Chapter viii. National Association of Nigeria Nurses and Midwives, Oyo State Chapter ix. Radio, Television and Theatre Workers Union, Oyo State Chapter x. Nigeria Union of Civil Service, Secretarial and Stenographic Workers, Oyo State Chapter xi. Association of Senior Civil Servants of Nigeria ………… Respondents REPRESENTATION Michael F. Lana, Attorney-General of Oyo State, and with him are Mrs. H. M. Awosemuki, Legal Officer and O. 1. Orobode, Legal Officer, for the applicant. Barnidele Aturu, and with him are Mrs. C. Anyanwu, Etti Umo-Adiasung, C. Nwolisa, Olajide Olakanrni, Tonyltedjere and Y. Z. Edego, for the respondents. JUDGEMENT The applicant had on August 28, 2007 filed an originating summons seeking for the determination of the following questions: 1. Whether the Federal Government circular Ref. No. SWC/S/04/S.300/l of 18th January 2007 which has not been implemented by the Federal Government IS applicable to and enforceable against the States of the Federation. 2. Whether the strike embarked upon by the labour unions in Oyo State is legal. 3. Whether the purported Agreement between the labour unions in Oyo State and the Government of Oyo State on 24lh April 2007 is not in contravention of section 2(3) and ] g(3) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990 and, therefore, null and void. 4. Whether the Government of Oyo State is bound by an agreement entered into through collusion, coercion and fraudulent inducement. 5. Assuming without conceding that the said Agreement is valid, whether it provides an increment beyond 15% to officers on Grade Level 07 - 17 in view of the Federal Government Circular No. SWC/S/04/S.300/1 of 18th January 2007. 6. Whether in the circumstances of this case the Government of Oyo State can be compelled to pay the over-bloated salary on the basis of the rate used by the last Administration in April 2007. 7. Whether the labour unions can validly countermand a lawful order of an employer to his employee. 8. Whether it is valid for a union leader in politics to use the unions for the purpose of vend ell a under the guise of fighting for the interests of the union members. 9. Whether the public officers in the employment of Oyo State Government who embarked on the strike action since 26th June 2007 and 27u1 August 2007 are entitled to any wages or other remuneration for the period of the strike. 10. Whether the strike called by the Nigeria Labour Congress (NLC) is ultra vires the Congress and, therefore, illegal in view of its statutory limitations under the TDA. The applicant then went to c1aim- 1. A declaration that the strike action by the public officers in the employment of Oyo State Government under the TDA is illegal. 2. A declaration that the involvement by A1haji Bashir Apapa, the Chairman, NLC, Oyo State Branch and Governorship Candidate of Labour Party is a breach of section 36 of the Constitution and a misuse of power and breach of trust. 3. A declaration that the Agreement dated 24th April 2007 is null and void and of no effect. 4. A declaration that the Memorandum of Understanding (MoU) dated 23rd July 2007 has validly cancelled or in the alternative varied the Agreement dated 24th April 2007. 5. A declaration that the NLC, Oyo Stale branch cannot use force to compel the members of the Oyo State Public Service from going to work. 6. A declaration that the public officers in the employment of Oyo State Government are not entitled to wages and remunerations during the period of their strike. 7. A declaration that the Federal Government Circular No. SWC/S/04/S.3001l of 181b January 2007 is not applicable to or enforceable against the Oyo State Government. 8. A declaration that the strike action called by the NLC, Oyo State branch on behalf of the public servants in Oyo State is ultra vires. 9. A declaration that the respondents have no authority to order public servants to disobey lawful directives of their employers. 10. An order compelling the public servants to resume work. 11. An order deeming any public servant who fails or refuses to resume for work from the date of judgment as having ceased to be an employee of the State Government. Accompanying the originating summons is a 9-paragraphed affidavit deposed to by N. O. Okeniyi, the Director of Civil Litigation in the Oyo State Ministry of Justice, Ibadan with 7 exhibits attached. The reaction of the respondents to the Originating summons was to challenge the jurisdiction of this court to entertain the matter. By a considered ruling on October 3, 2007, this court ruled that it has the jurisdiction to hear and determine the matter; whereupon the matter proceeded to trial. In the same ruling of October 3, 2007, this court stated that in relation to the 1st respondent, the applicant has already conceded that if reference to the political credentials of the 1st respondent would pose a problem, it is prepared to drop such a reference. This court agreed and hence acceded to the applicant's prayer. What this implies is that the 8th question posed for the determination of this court i.e. 'whether it is valid for a union leader in politics to use the unions for the purpose of vendetta under the guise of fighting for the interests of the union members', and the 2nd declaratory relief sought i.e. 'a declaration that the involvement by Alhaji Bashiru Apapa, tile Chairman, NLC, Oyo State Branch and Governorship Candidate of Labour Party is a breach of section 36 of the Constitution and a misuse of power and breach of trust' , must be treated as abandoned by the applicant, and are so treated by this court for present purposes. While this matter was still pending before this court, the strike action said to be embarked upon by the respondents and their members was reportedly called off. At this, the respondents prayed the court to strike Dot the matter arguing that there are no longer live issues to warrant the case going on. The applicant opposed this urging that there are still live issues requiring resolution by this court once and for all. The court agreed with the applicant and directed that parties should file written addresses without. Prejudice to the respondents raising the fact of the absence of live issues for determination as a defence. Both parties thereafter filed their respective written addresses. In its written address, the applicant commenced its submissions by first giving the background facts of the case at hand. To the applicant, by a circular Ref. No. S WC/S/04/S.30011 dated 18th January, 2007, the National Salaries, Incomes and Wages Commission informed Federal Public Servants of the Federal Government's approval of a new salary structure for the Federal Public Service, referring to Exhibit A. That on becoming aware of this new salary structure which was a 15% increase on the previous structure, the respondents demanded a 15% increase in their own salaries in the state. That the Government of Senator Ladoja first declined to pay the increment and sought and obtained in Suit No. NIC/I 012007 an order of injunction restraining the respondents from threatening to or embarking on any industrial action, referring to Exhibit B. The applicant continued that prior to this, there was a great enmity between the said Governor and his deputy, Otunba Adebayo Alao-Akala which got to a level that the deputy was removed from his traditional office in the building housing the Governor and put in an office outside the Secretariat complex. However, that on 14th April 2007, the said Deputy Governor emerged as the Governor of Oyo State after the general elections. To the applicant, in order to frustrate the in-coming administration, Senator Ladoja abandoned Suit No. NICI I 0107 and agreed to pay an over-bloated salary structure, which went beyond what the 'workers demanded, referring to Exhibits C and A (the emphasis is the applicant's). The applicant then went on to address six of the issues it framed for the determination of this court i.e. issues I, 2, 3, 6, 9 and 10, effectively abandoning issues 4, 5, 7 and 8. In consequence or this, the applicant prayed for only reliefs], 3, 5, 6, 7, 8 and 11 to be granted to it by this court, and abandoned reliefs 2, 4, 9 and 10. Issue 1 relates to the question whether the Federal Government Circular Ref. No. S WC/S/04/S.30011 of 18th January, 2007, which, according to the applicant, has not yet been implemented by the Federal Government, is applicable to and enforceable against the States of Federation. On this issue, to the applicant, it is evident that the. Genesis of the crisis IS circular No. SWC/S/04/S.003/l of 18 January, 2007. That the circular was issued by the National Salaries, Incomes and Wages Commission a body established under the National Salaries Incomes and Wages Commission Act No. 99 of 1993 (now Cap N72 Laws of the Federation 2004). To the applicant, in order to appreciate the applicant’s case, it is necessary to examine the role and functions of the National Salaries, Incomes and Wages Commission, which include: a) Advising the Federal GQvep1ment on national income policy. b) Recommending the proportions of income growth which should be utilized for general wage increase. . c) Keeping prices under continuous surveillance, interpret price movements and relate them to other developments in the national economy. d) Proposing measures for the regulation of prices and wages in the various sectors of the economy and for the control of hoarding. e) Establishing and running a data bank or other information centre relating to data on wages and prices or any other variables. f) Examining, streamlining and recommending salary scales applicable to each post in the public service. g) Examining the salary structures in the public and private sectors and recommending a genera] wages framework with reasonable features, relativity and maximum levels which are in consonance with the national economy. The court was then referred to section 3(a), (b), (f), (i), (e) and (n) of the National Salaries, Incomes and Wages Commission (NSIWC) Act. To the applicant, it is obvious from the above that the issue of increase in salaries and wages is a technical issue which cannot ordinarily be done without consideration of relevant data in relation to productivity and other developments in the national economy. That in order to avoid instability in the economy three special provisions are made to ensure that the employers and employees do not by agreement fix the rate of salaries and wages arbitrarily. First, that section 12 of the NS]WC Act provides that notwithstanding anything contained in the TDA, where the Industrial Arbitration Panel (IAP) is of the view after arbitration, that a case has been made for an increase in salaries, the IAP shall then refer the decision as to the level of increase to the Commission for advice. That the word "shall" in that section makes it mandatory for the IAP to seek the advice of the Commission on the "level of increase". That though the Act does not compel the IAP to heed the advice of the Commission, it is clear from the provisions of the NSIWC Act that it is the only agency of government that can give the IAP the technical advice necessary to arrive at a just decision in the overall interest of the national economy. That it is also clear that the advice of the Commission is sine qua non to the exercise of power on salaries by the IAP. Secondly, that section 13 of the same Act provides that where collective agreements between employers and employees involve increase in wages and fringe benefits, three copies of the collective agreements must be submitted to the Commission for advice. Thirdly, that section 18 of the TDA provides: 1. No employer shall grant a general or percentage wage increase to any group of employees without the approval of the Ministry. 2. ............................................................................ 3. A tribunal or court under this Act shall not have power to grant any general or percentage wage increase and shall not have power to approve any such grant unless the approval of the Minister has been obtained as required under sub- section (1) of this section. To the applicant, the combined effect of sections 3, 12, 13 of the NSIWC Act and section 18 of the TDA is that no salary or wage increase can have effect except with the approval of the Federal Government who has the capacity to act in accordance with the technical advice of the NSIWC. The applicant then submitted that the reason for the Government struggled control of labour and wage issues as stated by Mansfield Cooper and J.C. Wood -Outlines of Industrial Law 5th edition at page 444 is that "Government's principal concern is to ensure that wages do not grow faster than the growth of productivity and the income warrant". To the applicant, it is, therefore, illegal for any organ of Government to increase salaries without first seeking the advice of the Commission and further seeking the approval of the Minister in charge of labour. That it is in the exercise of the functions stated above, and in compliance with relevant laws that the Commission issued circular No. SWC/S/04/S.300/1 dated 18th January, 2007. The applicant continued that it must be assumed that in issuing the circular, the Commission has done all that is expected of it under section 3 of the NSJWC Act as stated above and has concluded that the income of the Federal Government could sustain the salaries and wages increase. The applicant then posed the question whether the same can be said of the States, the answer to which the circular has to be examined in order to detect whether the Commission intended the same salary for tile States. To the applicant, the Supreme Court has warned that no one has a right to add new or additional words in the construction of a document or statute, referring to Solicitor- General, Western Nigeria v. Adebonojo [1971] 1 All NLR 178 at page ]91. That the circular was addressed to officers in the offices of the President and Vice- President, Federal Ministers, Secretary to the Government of the Federal (SGF) the Head of the Civil Service of the Federation, Federal Commissions, all Federal Permanent Secretaries and Heads of Extra Ministerial Offices, Directors-General and Chief Executives of Parastatals, Agencies, Clerk of the National Assembly, Auditor General for the Federation, Accountant-General of the Federation and Secretary National Judicial Council. That none of the addressees is an arm or agency of a State Government. In any event that the introductory part of the circular states: The President, Commander-in-Chief of the Armed Forces, has approved a new salary structure for the Federal Public Service (the emphasis is the applicant's). To the applicant, the 'Federal Public Service' as defined by section 318 of the Constitution is quite distinct from the 'Public Service of a State'. Furthermore, that the exact salary structure approved was attached as Annexure 1 to the circular. That no State of the Federation pays or could pay any amount near what is in that Annexure. The applicant continued that paragraph 2 of the circular further emphasized the category of workers to which the circular relates in the following words: 'The Consolidated Public Service Salary Structure (CONPSS) applies to all staff of Federal Ministries, Extra-Ministerial offices and Agencies formerly operating the Harmonized Public Service Salary Structure (HAPSS). The applicant then submitted that the circular has not fixed the salary or wages for the States neither is there a directive by the Commission that the contents are applicable to the States or other employers of labour. The applicant went on to pose the question whether the respondents. can then base their claim to increment on this circular, to which it answered in the negative, referring to this court's decision in Ondo State Government v, National Association of Nigerian Nurses and Midwives and anor unreported Suit No. NTC/1/2007 delivered on July 4, 2007. The applicant then urged the court to hold that the circular is not applicable to or enforceable against the State. Next, the applicant took up issue 3. Issue 3 relates to the agreement, which to the applicant was purportedly made by the parties in this matter on the basis of the above circular, and which to the applicant is not applicable to or enforceable against the State. To the applicant, the first issue here is the validity of the agreement dated 24th April 2007, which is marked Exhibit C to the Affidavit of N.O Okeniyi. The applicant then urged the court to note the opening paragraph of Exhibit C which states: In response to the Federal Government's Circular on the implementation of the Consolidated Public Service Salary Structure (CONPSS) of January, 2007 the Labour side requested for a full implementation of the new salary scale, the minimum of which is N11,132.00. To the applicant, it is clear that what is sought to be implemented by the agreement is the circular dated .18th January 2007 (Exhibit A) with modifications. The court was further invited to note the first three provisions of the agreement. That by clause (1), the agreement increased the minimum wage from N5,175 to N9,400 per month. In other words, that by a simple agreement both parties have amended section 1 of the National Minimum Wage Act 2002. The applicant referred to Idowu Alase and ors v. Sanya Olori Ilu and ors [1965] NWLR 66 at 71 (we could not trace this report) where the court held thus:- It is the duty of all courts to give effect to legislation and that parties to a transaction cannot by consent or acquiescence or failure to object nullify the effect of a statute. Moreover, that neither the State Government nor the trade unions is empowered to change the National Minimum Wage. That it is the executive function of the National Assembly, referring to paragraph 34 of Part I of the Second Schedule to the 1999 Constitution. To the applicant, the agreement is, therefore, unconstitutional, null, void and of no effect. Furthermore, that the agreement, which has never been submitted to the National Salaries, Income and Wages Commission for proper advice, offends section 18(1) and (3) of the TDA and is also to that extent illegal and void. The applicant then invited the court to take judicial notice of the statement by the Chairman Fiscal and Mobilization Committee that the review of salaries could not be implemented by the Federal Government because the National Minimum Wage Act 2002 has not been amended. That it follows, therefore, that the State Government cannot be compelled to implement any increase in the National Minimum Wage until that Act is amended by the National Assembly. Next, the applicant took up issues, 2, 9 and 10, which all deal with the strike embarked upon by the respondents. To the applicant, in treating these issues, it is necessary to examine the law relating to the strike, the legality or otherwise of strikes particularly in the circumstances of this case. The applicant then went on to refer the court to LT. Smith and J. C. Wood - Industrial Law (Butterworths) at page 288 where the authors wrote as follows: The legal history of trade unions is one of the long periods of treatment as illegal or potentially illegal either under particular statutes or by virtue of certain general common law tenets, particularly restraint of trade and criminal conspiracy. The removal of these threats and the repeal of the old master and servant legislation in the last quarter of the 19u1 Century was a major step forward, but then the spectre was raised of unions being readily sued in the civil courts through the developments of the industrial torts until the granting of immunities to unions and their members by the Trade Disputes Act 1906. In other words, that the rights or privileges enjoyed by trade unions today, did not derive from the common law, rather they were rights or privileges created by statute. The applicant continued that as regards strikes, the authors at page 318 have this to say: As the most fundamental contractual obligation of an employee is to be ready and willing to serve the employer the action of going on strike has normally been regarded as constituting a breach of contract; as such it gave the employer the right to dismiss summarily or, in theory to sue the employee for damages. The court was then referred to NCB v. Galley [1958] 1 All ER 91. To the applicant, in Nigeria, particularly as regards Public Officers, the Trade Disputes (Emergency Provision) Decree 1969 was the first statute that destroyed the right to strike earlier granted by English Statutes, referring to Akin Emiola - Public Servant and the Law (University of Ife Press) 1985 where the learned author said - To stem the wave of strike actions and lockouts in circumstances just described, section I (2) of the Trade Disputes (Emergency Provisions) Decree 1969 put a complete ban on strike and lockout. This provision has now been re-enacted in subsection (I) of section 13 of the Trade Disputes Act 1976, so that Institutions or Establishments where the provisions of the 1976 Act are applicable, it is still illegal for any Public Servant - indeed Members of Trade Unions of any description- to call out their men on strike. The applicant went to refer the court to E. E. Uvieghara - Trade Union Law in Nigeria at pp. 133-134 where the learned author said: The critical need during the Civil War for sustained production and for industrial stability to strengthen the war efforts prompted government in 1968 to promulgate the Trade Disputes (Emergency Provisions) Decree No. 21 of 1968 banning strikes and lockouts. This was reinforced the following year by the Trade Disputes (Emergency Provisions) Decree No.2 of 1969. To the applicant, in England, there was the argument whether a strike is a breach of contract of employment. That Lord Denning in Morgan v, Fry [1968] 2 QB 710 was of the view that a strike is a suspension of contract of employment and that a strike is lawful If the required notice was given to the employer. That commenting on the dissent judgment of Phillips J. in Simmons v. Hoover Ltd [1977] ICR 61, Smith and Wood op. cit at pp. 318 - 319) said: The whole question arose (obliquely) for consideration by the EAT [Employment Appeal Tribunal] in Simmons v. Hoover Ltd where in re-affirming that an employer has a right to dismiss a striking employer (who is thereby disentitled to H redundancy payment) Phillips J. held that there is no common Jaw doctrine of suspension by strike notice and refused to apply Lord Denning's views in Morgan v. Fry. He considered that those views were out of line with the modern statutory provisions relating to strikes (in contexts such as unfair dismissal, redundancy claims and continuity of employment) which operate on the assumption that participation in a strike is repudiatory conduct entitling the employer to dismiss and then graft on special rules (depending on the context). Thus his approach was that the "lawfulness" of strikes is in reality to be judged by relevance to the statute relevant to the particular context in which the questions arise and not by any "restatement" of the basic law concerning the relationship between employer and employee under a contract of employment. Adopting this approach, the simple question “are strikes 'lawful' becomes meaningless; Simmons v. Hoover Ltd shows a clear move back to the original view of strikes as breaches of contract and any mitigation of the potential harshness of this must be found in the legislation. 1n the context of civil liability, this is now to be found in the Trade Union and Labour Relations Act 1974, section 13(3)(b). To the applicant then, whether an employee has a right to go on a strike or not is dependent on the statutory provision. But that N. M. Selwyn - Selwyn's Law of Employment (Butterworths) 7th Edition) at page 74 said: However, it must be borne in mind that a strike, whether in breach of a collective agreement or not, is always a breach of contract at common law, so that the effect of section 18 must be minimal. Continuing, the applicant posed the question as to what the statutes say. That hitherto, and by implication, section I of the TDA seems to allow every employee to go on strike provided the required notices were given. However, that section 30(6) of the Trade Unions Act (TUA) Cap. 437 LFN 1990 as inserted by section 6 of the Trade Unions (Amendment) Act: 2005 provides: 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: (a) the person, trade union or employer is not engaged in the provision of essential services. And that the words "essential services" according to section 30(9)(b) of the TUA as inserted by section 6 of the Trade Unions (Amendment) Act 2005 "shall be as defined in the First Schedule of the Trade Disputes Act Cap. 432 Laws of the Federation of Nigeria 1990." To the applicant, in the aforesaid First Schedule, 'essential services' include: 1. The Public Service of the Federation or of a State…….. 2. Any service established, provided or maintained by the Government of the Federation or a State, by a local government councilor any municipal or statutory authority or by a private enterprise: (a) For or in connection with the supply of water (e.g. Water Corporation of Oyo State). (b) For or in connection with sound broadcasting (e.g. Broadcasting Corporation of Oyo State). (c) 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 disposal of night soil and rubbish (e.g. Oyo State Hospitals Management Board, Ibadan Waste Management Authority). (d) For dealing with outbreaks of fire (e.g. Oyo State Fire Services Department). The applicant continued that the clear and unambiguous provision of section 30(6) prohibits (the word "shall" is mandatory) any person, trade union or employer from taking part in a strike or lockout except the person, trade union or employer is not engaged in the provision of essential services. That they are absolutely prohibited from taking part in a strike or lockout. That even in England, the courts frown on strikes by employees or trade unions engaged in such services that constitutes the livewire of the economy, referring to Meade v. London Borough of Haringley [1979] 2 All ER 1016 at 1020 where the court said: if the Borough Council were to order the schools to close for a term, or for a half term, or even for one week, without just cause or excuse, it would be a breach of their statutory duty. If any of the teachers should refuse to do their work, the Borough Council ought to get others to replace them and pot pay the defaulters. In the present case, that it is not in doubt that the respondents represent the Public Servants in Oyo State. That there is also no doubt that the respondents went on strike (although that they tried to deny it, referring to page 3 of Exhibit G). That during that period, the schools were closed down, hospitals and mortuaries were closed down and all avenues for generating revenue locked down. That this is what section 30(6) of the TUA seeks to prevent, referring to paragraphs 4(xij), (xviii) and (xxiv) of the affidavit in support. To the applicant, it should be noted that while the unions have no right to go on strike, so also the State Government, being the employer, has no right to lock them out. However, that where such employees decide to embark on a strike which they are forbidden by the statutes from taking part in, the employer has the right to terminate their appointment; for they have breached the terms of their contract and have committed an illegality. The applicant then urged the court to hold that the strike embarked upon by the respondents is unlawful. The applicant then continued that even assuming, without conceding, that the respondents have the right to go on strike, the authorities cited above still hold that the strike must have been preceded by the required notice. In this case, that section 17 of the TDA was "'not complied with. That this failure makes the strike illegal and, therefore, caused a breach of contract of employment. To the applicant, it is clear from the affidavit evidence that the strike was orchestrated by the l "respondent, a representative of the NLC. The applicant then submitted that the NLC has no right under section 34 of the TUA to call a strike or encourage the calling of a strike. That the powers of the NLC as the Central Labour Organization are strictly defined and limited and do not include calling Or aiding the calling of a strike, referring to FGN v. Oshiomole [2004] 1 NLLR 541 at 545. The applicant then urged the court to resolve issue 10 in its favour. Issue 6 is the last issue the applicant addressed; and on this, the applicant asserted that the issue has been answered by the above arguments. But that assuming the respondents have the right to go on strike, they are still not entitled to salaries and wages for the period of the strike given the provision of section 42 of the TDA. The applicant then urged that this issue be resolved in its favour. In conclusion, the applicant urged the court to resolve issues 1,2,3,9 and 10 in its favour and that reliefs 1,3,5,6,7,8 and 11 of the amended originating summons be granted. The applicant having abandoned reliefs 2, 4, 9 and 10 prayed that they be struck out. The respondents reacted by filing a written address. In the written address, the respondents asserted that while the suit was still pending before this court, the parties decided to meet and settle their dispute amicably and in furtherance of same several reconciliatory meetings were held and finally on the 3rd of October, 2007, the parties resolved their differences, the said workers were paid their arrears of salaries in line with the parties' new agreement and the respondents herein called off the strike action and the public servants went back to work. Furthermore; that in the applicant's final written address, counsel for the applicant adopted questions 1, 2, 9 and 10 as the issues for determination by this court and argued extensively on those issues alone. Consequently, that the claimant has abandoned questions 4, 5, 6, 7 and 8 and reliefs 2, 4, 5, 9, 10 and 11 of its originating summons. We must point out here that the applicant did not abandon question 6 as the respondents would want us to believe. The applicant actually argued question 6 citing section 42 of the TDA in the process. The respondents then went on to adopt and address the issues raised by the applicant's counsel. However, they formulated the following issue as the. Critical issue for the determination of the court i.e. whether there is any live dispute between the parties for the determination of this court. To the respondents, the 1st issue raised by the applicant's counsel is whether the Federal Government Circular Ref: SWC/S/04/S.300/1 of 18th January, 2007 which has not yet been implemented by the Federal Government is applicable to and enforceable against a State of the Federation. On this issue, the respondents submitted that the whole of counsel's argument on the issue is misconceived as the issue is totally irrelevant to this proceeding. That the processes before this court show that there is an agreement between the parties dated 24th April 2007 (Exhibit C) on the issue of salary increment, by Which agreement the applicant agreed to pay a minimum wage of N9,400 to the Oyo State public servants. That the existence of that agreement is not in dispute between the parties. That it is also not in dispute that the respondents were agitating for salaries to be paid to the workers in line with that subsisting agreement and the dispute that arose between the parties was as a result of the claimant's refusal to continue to pay salaries in line with the terms of that agreement, referring the court to paragraphs 4(v) and Exhibit C of the applicant’s affidavit in support of its originating summons and paragraph 3(a) – (f) of the respondents' statement of defence. The respondents further submitted that the dispute that arose between the parties was as a result of the applicant's non-compliance with a subsisting and binding agreement between the parties and not the enforceability or non-enforceability of the Federal Government Circular with Ref: SWC/S/04/S.300/1. That the circular may have given the respondents the idea to demand for salary increment but subsequently, the parties entered into a binding agreement to increase salaries. That the respondents' agitation was not for the claimant to implement the Federal Government Circular, but the agreement between the parties dated 24th April, 2007. That what gave the respondents the idea of agitating for increment of salaries is irrelevant and how the drafter commenced the drafting of the agreement is irrelevant. That what is relevant is that there are covenants in the agreement which create binding legal relations between the parties and it is these covenants that the respondents were agitating for implementation. The respondents then urged the court to discountenance the whole of counsel's argument on this point and hold that the respondents did not base their claim to salary increment on the Federal Government Circular with Ref: SWC/S/04/S.3001l but on the binding nature and enforceability of the agreement between the parties dated 24th April, 2007. On the applicant's argument that the wage increment was not referred to the National Salaries, Income and Wages Commission for advice by the IAP, the respondents submitted that that argument is misconceived as such a reference is not applicable in this case. In any case, that the applicant did not submit the dispute to IAP for arbitration and a party cannot be allowed to benefit from his own wrong. To the respondents, section 12 of the NASIWC Act quoted by the learned counsel is, therefore, not applicable in this case. That there was no arbitration on the dispute between the parties before the IAP, and so the issue of reference by the IAP to the Commission for advise on the 'level of increase' does not arise. The respondents equally submitted that section 13 of the NSIWC Act and section 18 of the TDA quoted by the applicant's counsel are not applicable in this case, urging the court to so hold. On the applicant's issue 3 i.e. whether the agreement between the labour unions in Oyo State and the Government of Oyo on 24th day of April, 2007 is not in contravention of section 2(3) and 18(3) of the "IDA and, therefore, null, void and of no effect, the respondents asserted that learned counsel for the applicant has argued that the said agreement was made on the basis of the Federal Government Circular with Ref: No. S WC/S/04/S.300/l. That the reason for this argument is based on the opening words of the agreement (Exhibit C). Referring the court to the opening paragraph of Exhibit C, the respondents submitted that the said paragraph was selectively quoted by the claimant's counsel. That counsel deliberately left out the partial) of the said paragraph that says- After series of meetings between the Oyo State Government and the Trade Union sides of Oyo State Public Service Joint Negotiating Council….. the following agreements were reached. . That the reference to the circular came after series of meetings by which agreements were reached. In effect, that the Oyo State Government did not agree that the circular was automatically applicable that is why there were series of meeting whereby the agreements were reached. The respondents further submitted that though the circular may have been an eye opener for them to demand for salary increment, agreements were reached between them and the claimant and it is those agreements that the respondents were seeking to be implemented and not the circular which was merely an eye opener, urging this court to so hold. In reply to the applicant's argument that the increment of minimum wage from N5, 175 to N9, 400 per month in clause 1 of the agreement amount to an amendment of section] of the National Minimum Wage Act of 2002 by the parties by mere agreement, the respondents referred the court to section 1(1) and (2) of the National Minimum Wage Act 2002 and then submitted that the Act provides for the irreducible minimum and did not in any where state that no employer should pay more than the prescribed minimum or that there should be no agreement to pay more than the minimum. The court was further referred to section 3(1) of the Minimum Wage Act. The respondents continued that, as earlier stated, section 18(1) and (3) of the TDA is not applicable in this suit. That the applicant has alleged that the agreement offends section 18(1) and (3) and to that extent is illegal and void. In this regard, the respondents submitted that the burden of proving this allegation rests on the applicant, which it has failed to discharge, referring to section 135 of the Evidence Act. Furthermore, that the applicant has not discharged the burden of proof on it to establish that increment did not have the Minister's approval. In any event, that non-compliance with section 18 is, by section 18(2), a criminal offence which must be proved beyond reasonable doubt and this applicant has failed to discharge. To the respondents, it is trite law that a party cannot be allowed to benefit from his own wrong doing. That Oyo State Government agreed with the respondents to grant salary increment and it is, therefore, foul for the same government to claim that the agreement is void because it did not obtain the Minister's approval to grant wage increment. That Oyo State Government is a continuum and, assuming without conceding, that it did not obtain consent, it cannot now claim that the agreement it entered into is void because it did not obtain consent. That the applicant has also not shown any evidence of fraud or coercion to vitiate the agreement and counsel cannot by argument, invalidate the agreement. The respondents then submitted that the agreement (Exhibit C) which is a collective agreement is valid and binding on the parties. On. issues 2, 9 and 10, the respondents asserted that counsel for the applicant had argued extensively on the legality or otherwise of the strike action allegedly embarked upon by the Oyo State public servants. That in the claimant's written address, counsel quoted section 17 of the IDA which he clearly stated seems to allow every employee to go on strike provided the required notice is given. That counsel, however, further quoted 'section 30(6)' of the Trade Unions (Amendment) Act 2005 which he stated prohibits any person, trade union or employer from taking part in a strike or lock-out or engage in any conduct in contemplation or furtherance of a strike or lock-out unless the person, trade union or employer is not engaged in the provision of essential services. The respondents then submitted that the applicant's counsel selectively quoted the provisions of section 6 of the Trade Unions (Amendment) Act 2005 which amended section 30(6) of the TUA. The said section 6 provides, inter alia, as follows - No person, trade union or employer shall take part in a strike or lock-out or engage in any conduct in contemplation or furtherance of a strike or lock-out unless: a) The person, trade union or employer is not engaged in the provision of essential services; b) The strike or lock-out concerns a labour dispute that constitutes a dispute of right; c) The strike or lock-out concerns a dispute arising from a collective agreement and fundamental breach of a contract of employment or collective agreement on the part of the employee, trade union or employer; d) The provisions for arbitration in the Trade Disputes Act Cap. 432 LFN, 1990 have first been complied with; and 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 . The respondents then submitted that this section should be read conjunctively and not disjunctively. That a person 01: trade union is only prevented from going on strike unless all the provisions of the said section 6 are violated. That where the dispute between an employer and its employee is a labour dispute which constitutes a dispute of right and a breach of a collective agreement, as in the instant case, the employee has a right to go on strike even when the employee is in the provision of essential services. The respondents then referred the court to Exhibit C and submitted that there is a collective agreement between the parties which have been violated by the claimant, which, therefore, means that there is a dispute of right as opposed to dispute of interest which entitles the workers to go on strike. To the respondents, this court is enjoined by section 7(6) of the NIC Act 2006, to have due regard to good international best practice in labour or industrial relations in the exercise of its jurisdiction. The respondents then urged the court to have due regard to international industrial best practice in construing the provisions of section 6 of the Trade Unions (Amendment) Act 2005. That it will not amount to best industrial practice to hold that all public servants in Oyo State are engaged in essential services. That to do so will amount to giving 'essential services' a very wide meaning and this would conflict with International Industrial best practice. To the respondents, under the ILO, teachers are allowed to go on strike. That to hold that teachers In Oyo State by virtue of their being public servants are engaged in essential services and, therefore, prohibited from going on strike would conflict with international best labour practice. The respondents then urged the court to discountenance the whole of the applicant's arguments on this issue as same are misconceived. On whether there is a live dispute between the parties for the determination of this court, the respondents contended that there is no live dispute between the parties for the determination of this court. That this is premised on the facts that while this suit was still pending before this court, the parties held several reconciliatory meetings and on the 3rd October 2007, settled all disputes between them and the workers went back to work, referring the court to Annexure I attached to the respondents' written address The respondents then submitted that the said Annexure I which is a circular with Ref: No. E.250 VOLIIIT2/128 dated 10th October, 2007 emanated from the claimant's Ministry of Establishment, Training and Poverty Alleviation duly signed by the Permanent Secretary on behalf of the Commissioner clearly shows that the causes of action have been amicably settled by the parties. That the parties have while this suit is pending, agreed on a new salary scale, the workers have been paid their arrears of salaries in line with the new salary scale, the workers are back to work and both parties are enjoying a harmonious relationship. The respondents went on to submit that where parties to a pending proceedings have exercised their right to settle the dispute amicably out of court, the original cause of action is regarded as having been mutually terminated by the parties and cannot be resurrected, referring the court to the Court of Appeal decision in the case of Obayiuwana v. Ede [1998] 1 NWLR (Pt. 535) 670 at 672 - 673 Ratios] and 2 particularly at 678 A- C and 679 H - B, 680 D - E, where the court held as follows: Now it is settled law, that except in specified cases or circumstances, parties to a threatened, intended or pending proceedings are entitled to compromise or settle their disputes on any terms they agree and at any time or stage of the proceedings they choose, and this can be done without any reference to or approval of the Court where the action is pending. Where the parties compromise, or settle pending proceedings whether before or at or during the trial, without making provision expressly or by necessary implication for obtaining an order of the Court to embody the agreed terms, such a compromise settlement constitutes a new and independent agreement or bargain between the parties made for good consideration and its effect is as follows: a) It puts an end to the proceedings which have been compromised or settled for they are thereby spent and exhausted. b) It precludes parties from taking any further steps in the action; and c) It supersedes the original cause of action altogether. The respondents then submitted that the cause of action which gave rise to this suit having been amicably resolved by the parties, and the parties having entered a new agreement as to salary scale for Oyo) State public servants, the workers having been paid salaries in line with the new agreement including the arrears for the alleged period of strike, and the workers having resumed work, there is no live dispute for the resolution of this court and the claimant is estopped from resorting to this court to resurrect the mutually terminated causes of action. The court was then referred to the case of A.G. Anambra State v. A.G. Federation [2005] 9 NWLR (Pt. 931) 572 at 588 Ratio 6 particularly at 607C, 610C and 654 B - D, where the Supreme Court held as follows:- It is not the function or indeed the duty of the Court to embark on advisory opinion or abstract or academic exercise or on speculation. The Court has no jurisdiction to do that. The Courts are established to determine live issues. It follows therefore that anyone coming before a court must show the existence of a dispute between him and the Defendant... and he is not merely seeking for an answer to hypothetical questions or an opinion on a matter in which there is no dispute. Finally, the respondents submitted that since there is no live dispute between the parties, what the claimant wants this court to proffer is an advisory opinion on matters upon which there is no longer any dispute, urging the court to so hold and dismiss the claimant's originating summons for lacking in merit. The applicant reacted on points of law. To the applicant, it is erroneous for the respondents, at this stage of the proceedings to deny that the dispute between the parties is not the Federal Government's Circular as reflected in issue l. That the said agreement attached as Exhibit C states: In response to the Federal Government's Circular on the implementation of the Consolidated Public Service Salary Structure (GONPSS) of January, 2007, the Labour side requested for a full implementation of the new salary scale ... (The emphasis is the claimant's). That the basis of this suit is the validity of an agreement based on a circular that is not valid or legal as far as the State Government is concerned. Since it is the law that a court cannot enforce an illegal contract, it is illegal for a State Government to apply that circular or any agreement based thereon vide section l8 of the TDA and other enactments previously cited. On the interpretation of section 30(6) of the TUA,t11e applicant submitted that it is erroneous to seek to interpret legislation by reference to what is termed "international best practice". That this is unknown to law. Furthermore, that the makers of the legislation are deemed to be aware of this "best practice" before enacting that law. That the incessant strikes with debilitating and destabilizing effect in Nigeria is not an "international best practice". That no University anywhere in the world goes on strike like in Nigeria; likewise school teachers and civil servants. 0n whether there is a live issue between the parties, the applicant submitted that 'there are live issues agreement between the parties has a legal backing or not; if it does not then parties will have to normalise and legalise their relationship on the subject-matter. Secondly, the judgment will establish fights and pave way for future peaceful relationship'. We need to make a quick remark regarding this submission. Given the incoherent nature of the submission, we have no choice but to disregard it. This preliminary remark made, we now turn to the merit of the case. The respondents had argued that while this case was still pending, parties resolved the dispute between them out of court and so there are no longer live issues left for this court to determine. In support of this submission, the respondents referred 10 Annexure I attached to its defence, which is a Circular Letter from the applicant dated 10(11 October, 2007 with ref. No. E.250 Vol.ll/T2/128. The relevant provisions or the said circular, signed by A. A. Oyekan, the Permanent Secretary of Oyo Slate Ministry of Establishments, Training and Poverty Alleviation, provides as follows- Following the resolution of conflicts arising from the salary structure of Oyo Slate Civil Service, 1 wish to inform you that His Excellency, the Executive Governor of Oyo State, Otunba (Dr) Christopher Adebayo Alao-Akala JP, psc has graciously approved the payment of the minimum salary of N9,400.00 to Civil Servants in Oyo State with effect from 1st July, 2007. This is sequel to the Agreement Government reached with the Labour Unions on 2nd of October, 2007. 2. The relevant table for implementation of the approved increase is attached to this circular letter. 3. Government has also agreed to the vacation of the circular letter No. E250 Vol. 11. T2/9 dated 29th August, 2007. Hence check off dues and other Labour Union levies should continue to be deducted at source. 4. The arrears emanating from this new salary structure as it affects the months of July, August and September, 2007 will be paid by government in three installments commencing from October, 2007. 5. It is hoped that all Public servants in Oyo State will reciprocate the kind gesture and magnanimity of the State Government by being more hardworking, loyal, honest, more productive and dedicated to their duties. They should equally shun all vices including absenteeism, lateness to work and truancy in order to achieve the desired objectives of providing social services to the good people of Oyo State. The pertinent question, therefore, is whether from the content of this circular it can be inferred that the dispute between the parties has been resolved, for which the intervention of this court is unnecessary. Alternatively put, what are the issues conclusively resolved by this circular that it becomes superfluous for this court to make any ruling? To start with, none of the parties challenged the validity of this circular. In fact, it was the respondents that pleaded it arguing that it resolved all the issues in dispute. The said circular first stipulates that the dispute between the parties has been resolved. Secondly, the circular goes on to stipulate that the applicant approved the payment of 9,400.00 Naira as minimum salary in the State. Thirdly, the circular provides that arrears of salary emanating from the new salary structure as it affects the months of July, August and September, 2007 will be paid by the applicant. The defendants are not complaining and so it must be taken that they 'have no issues in contention with the applicant. It is the applicant who argues that there are live issues. In particular, the applicant is challenging the validity of whatever agreement entered into with the respondents including of course Annexure 1 attached to the defence of the respondents. But can the applicant approbate and reprobate? The applicant cannot issue Annexure I and turn round to complain that it is not valid and so should not be held against it. The applicant had copiously argued that any salary increase without the sanction of the NSIWC and/or the Minister of Labour is unlawful and, therefore, null and void. In any event that an agreement cannot validate a salary increase over and above the 'N5,175' stipulated as the minimum wage under the National Minimum Wage Act 2002. This is a warped interpretation of the law. The National Minimum Wage Act 2002 in section 1 provides for a minimum wage of N5,500 for the country. Subject to the exemptions in section 2, it prohibits the payment of wages below the national minimum of N5,5OO per month. It does not bar the payment of wages over and above the national minimum. Specifically, section I (2) of the Act provides that any agreement for the payment of wages less than the national minimum wage as prescribed shall be void and of no effect whatsoever. This means that in paying N5,175 as minimum wage, the applicant is already in violation of the law: It is curious, therefore, that the applicant is complaining that the respondents are agitating for salary increase. The reference to section 18 of the TDA by the applicant is certainly out of context. This court has not been called upon 'to grant any general or percentage wage increase [nor] ... to approve any such grant' to warrant the application of section 18(3) of the TDA. Neither can it be said that the applicant' [granted] a general or percentage wage increase to any group of employees' to warrant the application of section 18(1) of the TDA. All that transpired between the parties were products of negotiation and collective bargaining, the outcome of which were the agreements and circulars exhibited. In consequence, the provisions of the TDA and the NSIWC Act are inapplicable to 111is case as the applicant argues, The applicant argued that the question of salary increase must be tied to the circular issued by the Federal Government; and because the said circular is not binding on the Stales, the salary increase it enjoins cannot be held against it. We agree with the applicant that a Federal Government circular meant for Federal Public Officers, without more, cannot avail State Public Officers. In the case of Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor unreported Suit No. NICJl/2007 delivered on July 4, 2007, this court was called upon to consider the validity of tile non- , implementation by the Ondo State Government of the 22% increase in the basic salary granted Federal Medical and Health Workers in Federal Tertiary Institutions. We held that the Ondo State Health Workers would only be entitled to the 22% salary increase if they show an entitlement to it. And because they could not establish this entitlement, we held that there is no enforceable obligation on the part of the Ondo State Government to pay the respondents the said 22% increase in basic salary. In the case at hand, the plethora of agreements exhibited culminating m Annexure I attached to the defence of the respondents are proof enough of the entitlement of the respondents to the salary increase agreed upon between the parties, While generally a Federal Government circular meant for Federal workers will not bind the States, it is perfectly lawful if, by negotiation and collective bargaining, it is agreed that its contents would apply mutatis mutandi or in whatever modified form to a State. Indeed, it is equally lawful for the State to on its own adopt, in whole or in part, tile Federal circular for implementation to its workers. Where any of this is the case, the salary increase at the State takes its validity, not from the Federal circular, but from the agreement entered into between the State and its workers or from the instrument of the State adopting the Federal circular. Once again, in the instant case, the agreements entered into between the parties and Annexure I exhibited by the respondents all give validity to the salary increase agreed upon by the parties. Next the applicant argued that the strike embarked upon by the respondents was illegal and so the respondents and their members are not entitled to salaries. The parties are agreed that the strike has been called off given the said settlement of the issues between them. It will, therefore, be academic to remark on the legality or otherwise of the strike. Whether or not the respondents who went on strike are entitled to salaries for the period of the strike remains the question. Even here, Annexure I is specific to the fact that payment of arrears will be made. On the construction of section 42 of the TDA regarding the issue whether strikers are entitled to salaries, we had cause to hold in SSANU v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 delivered on May 8, 2007 as follows: - ... section 42(1)(a) of the TDA is self-executory. Its implementation, without more, does not depend on a further enquiry in the manner that the appellant canvasses. A strike, whether legal or not, falls squarely within the ambit of the said section and for which the strikers are disentitled from wages and other benefits envisaged by the section. This statement of principle accords with the International Labour Organization (ILO) jurisprudence on the matter where at para. 588 of the Freedom of Association: Digest of decisions and principles of the freedom of Association Committee of the Governing Body of the ILO, Fourth (revised) edition, Geneva, the norm is that 'salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles'. And to the learned authors, Bernard Gemigon, Alberto Odero and Horacio Guido - 'ILO principles concerning the right to strike' [1998] International Labour review Vol. 137 No.4 at p. 471, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO 'has refrained from criticizing the legislation of member States which provide for wage deductions in the event of strike action and has indicated that, as regards strike pay, "in general the parties should be free to determine the scope of negotiable issues"'. It is in this light and given the self-executory nature of the said section 42(1 )(a) that it is perfectly lawful for an employer to choose to dispense with the 'no work, no pay' rule. In other words, strike pay is lawful if an employer chooses to pay same and not to penalize the strikers in any other way for the strike. In the same vein, it is lawful for workers to agree with their employer that wages will be paid and no other detriment suffered even when strike actions are embarked on. All of this will not be possible If the argument of the appellant, that before section 42(1)(a) of the TDA comes to play, a court order is required, is accepted. It will defeat the principle of harmonious labour relations upon which the ILO jurisprudence on the matter is hinged. Applying this principle to the case at hand, we hold that it is lawful for the applicant to agree to pay the respondents salaries even for the period when they were on strike. We cannot conclude this judgment without a remark or two on the application of section 7(6) of the NIC Act 2006. The respondents had argued that it is not good international practice to brand all public servants, and teachers specifically, as being on essential services and so cannot embark on strike. Section 7(6) cannot be applied in this general and sweeping form. A litigant that seeks to rely on best international practice must be prepared to establish or prove same as what is best international practice in industrial relations is a question or fact. For all the reasons given, we hereby decline to grant the prayers of the applicants. We make no order as to cost. Judgment is entered accordingly. …………………………………………… Hon. Justice B. B. Kanyip Presiding Judge …………………………………………… ….…………………………… Hon. Justice V.N Okobi Hon. Justice M.B Dadda Judge Judge