IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: WEDNESDAY 24TH FEBRUARY 2021 SUIT NO.NICN/EN/49/2017
1. DR ONYEBUEZE JOHN UGOCHUKWU
2. DR ADO I. AHMED
3. DR OPEYEMI OLAWALE OJO
4. DR ANEKE EMMANUEL O
5. DR OMOROGBE OWEN STEPHEN
6. DR RAJI MUSTAPHA M
7. DR UGWUOKE ALOY IFEDINSO - CLAIMANTS
8. DR ASINOBI UGOEZE
9. DR OYINLOLA OLU GBENGA
10. DR ADERIBIGBE ADEBAYO
11. DR MUHAMMED ADAMU ASKIRA
12. DR IBRAHIM SHETIMA KURUBI
[For themselves and on behalf of National
Association of Resident Doctors of Nigeria]
1. MINISTER OF HEALTH, FEDERAL
REPUBLIC OF NIGERIA
2. ATTORNEY-GENERAL OF THE
1. I. MAXIMUS UGWUOKE WITH D.C. NJOKU (MRS) – FOR THE CLAIMANTS.
2. M.S. DIRI. (DIRECTOR LEGAL SERVICES FEDERAL MINISTRY OF HEALTH – FOR THE DEFENDANTS.
ORGINATING SUMMONS commenced this suit on 22nd August 2017. The following questions were framed for answers:
i. Whether the combined effect of Section 40 of the Federal Republic of Nigeria 1999 [sic] (as amended); Article 23(4) of the Universal Declaration of Human Rights; the provisions of Article 10(1) and Article 15 of the African Chatter on Human and People’s Right [sic]; and Article 8 (1) (d) of the International Covenant on Economic, Social and Cultural Rights provides the legal framework for right of workers or employees to embark on strike. [sic]
ii. Whether the use of Strike Action by trade unions/associations of workers/employees is one of the internationally recognized lawful means employed by workers/employees in their collective bargain for the protection of interest of their members [sic]
iii. Whether the application of Section 43 (1) (a) of the Trade dispute [sic] Act to Trade Unions/associations who embarked on strike action for the protection of the interest of their members in securing better working condition is not repugnant to or limit the operation of section 40 of the 1999 Constitution and as such inconsistent with the said section of the constitution [sic].
iv. Whether it is unlawful to apply the’ No work no pay’ [sic] directive dated 2nd February 2011 issued by the 1st Defendant to Chief Medical Directors, Medical Directors, CEOs of Federal Health Parastatals/Regulatory bodies on Members of Applicant Associations who embarked on Strike in exercise of their rights under section 40 of the 1999 constitution for the protections of the interest of their members in achieving better working condition. [sic]
v. Whether the 1st Defendant or the Chief Medical Directors, Medical Directors, CEOs of Federal Health Parastatals/Regulatory bodies to whom they addresses the’ No work no pay’ [sic] directive dated 2nd February 2011 has power to interpret and determine the unlawfulness of Strike action by Members of Applicant Associations who embarked on Strike [sic] in exercise of their rights under section 40 of the 1999 constitution [sic] for the protections of the interest of their members in achieving better working condition without recourse to Court before enforcing same on the Applicants. [sic]
The claimants thereafter set down the following reliefs for consideration of the Court:
I. A DECLARATION that the combined effect of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) ; Section 43 (1) of the Trade Unions Act; Article 23(4) of the Universal Declaration of Human Rights ; the provisions of Article 10(1) and Article 15 of the African Charter on Human and People’s Right; and Article 8 (1) (d) of the International Covenant on Economic, Social and Cultural Rights provides the legal framework for right of workers or employees to embark on n [sic] strike in Nigeria [sic]
II. A DECLARATION that Section 40 of 1999 Constitution of the Federal Republic of Nigeria , gives every citizen of Nigeria (Claimants inclusive) the right to form or belong to any political party, trade union or any other association for the protection of his interest. [sic]
III. A DECLARATION that the use of Strike Action by trade unions/associations of workers/employees (Claimants inclusive) is one of the lawful and internationally recognized means employed by workers/employees in their collective bargain for the protection of interest of their members. [sic]
IV. A DECLARATION that the application of Section 43 of the Trade dispute [sic] Act to Unions/associations of workers/ employees particularly the Claimants, who embarked on strike action for the protection of the interest of their members is repugnant to or limit the operation of section 40 of the 1999 Constitution Section and/or 43 (1) of the Trade Unions Act and/or Article 23(4) of the Universal Declaration of Human Rights and/or the provisions of Article 10(1) and Article 15 of the African Charter on Human and People’s Right, and/or Article 8 (1) (d) of the International Covenant on Economic, Social and Cultural Rights. [sic]
V. A Declaration [sic] that the’ No work no pay’ [sic] directive dated 2nd February 2011 issued by the 1st Defendant to Chief Medical Directors, Medical Directors, CEOs of Federal Health Parastatals/ Regulatory bodies is derived from Section 43 of the Trade Dispute Act is purposed to penalize / victimize Members of Associations who embarked on Strike in exercise of their rights under section 40 of the 1999 constitution for the protections of the interest of their members in achieving better working condition. [sic]
VI. A DECRATION that the 1st Defendant or the Chief Medical Directors, Medical Directors, CEOs of Federal Parastatals/ Regulatory bodies to whom they addresses the’ No work no pay’ directive dated 2nd February 2011 has no power to interpret and determine the unlawfulness of Strike action by Members of Applicant Associations who embarked on Strike in exercise of their rights under section 40 of the 1999 constitution for the protections of the interest of their members in achieving better working condition without recourse to Court before enforcing same on the Applicants. [sic]
VII. An Order of Court nullifying the’ No work no pay’ directive dated 2nd February 2011 issued by the 1st Defendant to the Chief Medical Directors, Medical Directors, CEOs of Federal Health Parastatals /Regulatory bodies against the Claimants and its implementation against for infringing on the exercise of their rights under section 40 of the 1999 constitution and/ or the basis of manners of its implementation. [sic]
VIII. An Order of Court Directing the 1st Defendant and their agents (Chief Medical Directors, Medical Directors, CEOs of Federal Health Parastatals/ Regulatory bodies) to pay the members of the Applicants Associations all their salaries and entitlement [sic] being withheld by them pursuant to their implementation of the Directive dated 2nd February 2011 against the members of Association which the Claimants represent. [sic]
In reaction to the above, the defendants filed joint counter affidavit on 19th October 2020. The claimants reacted to the joint counter affidavit by filing further affidavit on 1st February 2020. That is all about the focal processes filed. I move to the proceedings before the Court.
The matter came up first before His Lordship, W. Abali J. on 6th September 2017. It subsequently came up next before me on 3rd April 2019. It was adjourned because of issues connected with filing. The case was yet adjourned at the instance of the defence on 10th July 2019 because of issues connected with appearance for the 2nd defendant and default fees. The case was yet adjourned on 6th November 2019 with directives that hearing notices be served on the 2nd defendant. It did not come up again until 20th July 2020 mainly because of COVID-19 Pandemic induced nationwide lockdown; on which date, it was yet adjourned at the instance of the defence. On the 28th September 2020, when it came up, it was adjourned to enable the parties explore the possibility of amicable settlement. It came up next on 11th November 2020.
On this date, the defence application to regularise their defence processes was granted unopposed and the matter adjourned subsequently to 25th January 2021 for definite hearing. It came up however on 2nd February 2021. On this date, the claimant’s application to regularise their further affidavit and Reply on Points of Law [RPL] was granted unopposed. Thereafter, learned I. MAXIMUS UGWUOKE adopted the written address in support of the originating summons and the RPL while learned M.S. DIRI (DIRECTOR LEGAL SERVICES, FEDERAL MINISTRY OF JUSTICE) adopted the written address in support of their counter affidavit against the suit. The case was thereafter adjourned to 24th February 2021 for judgment.
Having done with the proceedings, the next thing is summary of the cases made by each side.
CASES MADE BY THE PARTIES
A: The Claimants’ Case
In the affidavit in support of the application, the claimants deposed that they are the executive members of the National Association of Resident Doctors [NARD] and that the members of NARD do protect their interest by strikes in various tertiary health institutions and that on 2nd February 2011, the 1st defendant issued a circular directing all heads of federal health institutions and their regulatory bodies to enforce the “no work, no pay” rule and imposition of further sanctions for absence from work. They deposed too, that, in accordance with the foregoing, salaries and allowances of the members of the NARD were usually selectively withheld without recourse to the courts, whereas other health workers went on strikes without their salaries withheld, even when the members of the NARD and all other health professionals work alike for the 1st defendant. The claimants deposed that their letter of protest to the 1st defendant on this discriminatory practice and the appeal for payment of their withheld salaries was not answered.
In support of the foregoing depositions, the learned IKE MAXIMUS UGWUOKE franked an accompanied written address. The leaned counsel took the questions formulated and earlier reproduced abovein seriatim in arguing the written address. The learned counsel took issues 1 & 2 together. The learned counsel started by defining ‘strike’, drawing out the inference that, it is a means adopted by employees to press home their demands on employers. The learned counsel argued that the NARD was formed pursuant to section 40 of the 1999 Constitution to exercise the rights it conferred. The learned counsel submitted that section 40 of the 1999 Constitution is buoyed up by Article 23(4) of the Universal Declaration of Human Rights [UDHR], Article 15 of the African Charter on Human and People’s Rights [ACHPR] and Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights [ICESCR]. The learned counsel argued that, a community reading of these provisions gives right of strike and that Nigeria, being party to these treaties, is bound and that strike by workers is universally recognised as an instrument of collective bargaining. The learned counsel signed off on issues 1 & 2 and moved to issue 3.
Under issue 3, the learned counsel submitted that, in as much as strike action is a means of protecting employees interest, the provisions of section 43(1) of the TDA is in conflict with section 40 of the 1999 Constitution and signed off on issue 3. The learned counsel thereafter moved to issues 4 & 5. Under issues 4 & 5, which he argued together, the learned counsel argued that, the directive of ‘no work, no pay’ which stems from section 43(1)(b) of the TDA is logically in conflict with section 40 of the 1999 Constitution and thus, void. The learned counsel submitted that, assuming the validity of the said directive is inviolate, its application is defective because, the 1st defendant illegally assumed the powers of the courts in determining its infringement and consequential implementation; and that, this is against the spirit of section 6 of the 1999 Constitution. The learned counsel submitted that, by so acting, the 1st defendant became the complainant and judge in its own cause against the principle of natural justice.
The learned counsel further submitted that, the selective and inequitable enforcement of the rule of ‘no work, no pay’ by the 1st defendant amongst the workers in the same ministry is wrongful. The learned counsel enumerated the other health unions, the association of which went on strikes and the ‘no work, no pay’ rule was not applied against them. There the learned counsel signed off on the written address by urging the Court to grant the reliefs the claimants claimed. I move to the case made by the defendant in rebuttal of the case made by the claimants.
B: The Defendants’ Defence
In the counter affidavit, the defendants counter-deposed that the right to strike is not absolute; and that the right of the claimants to strike corresponds to the right of the defendants to stop payment of their salaries during the time of strike. They also counter-deposed that the claimants did not serve the requisite notices before embarking on the strike and equally walked out of the negotiation. They further counter-deposed that the court cannot allow the claimants to benefits from their own wrong; and that, the claimants’ Exhibit B was issued in the interest of public safety, health, order, and defence and public morality. Thus ended the counter affidavit.
MOHAMMED SAIDU DIRI franked the defendants’ written address in support of their counter affidavit against the originating summons. I shall not bother to take cognisance of the issues formulated by the learned counsel, because he had no business formulating issues in originating summons – see NJC & Ors v. Aladejana (2014) LPELR-24134 (CA) 30, B-D. The learned counsel counter-argued against the claimants that, members of the NARD who took part in strikes are not entitled to salaries for the duration of the strike by virtue of sections 40 and 45 of the 1999 Constitution and section 43(1)(a) of the TDA. The learned counsel argued that it would be against public policy for strikers to be paid salaries during strikes and made reference to section 48 of the TDA, on the meaning of strike; and submitted that, since the claimants had admitted in their Exhibit B that they embarked on strike, they are not entitled to salaries within the duration. The learned counsel submitted that the right conferred by section 40 of the 1999 Constitution is not absolute and admits of derogations by other laws by virtue of sections 45(1) of the 1999 Constitution and 43(1)(a) of the TDA; and that, the law does not impose a duty on employer to approach the court before implementing the ‘no work, no pay’ rule.
The learned counsel argued that, the ‘no work, no pay’ directive of the defendants is therefore validly issued under the extant laws. The learned counsel argued that, nothing in section 40(1) of the 1999 Constitution can invalidate section 43(1)(a) of the TDA, as it is introduced by the word ‘notwithstanding’. The learned counsel cited Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 24 in support. The learned opined that, when the members of the claimants proceeded on strike without issuance of the necessary notices and walked out of the negotiation, the defendants were right to apply the ‘no work, no pay’ rule by virtue of section 43(1)(a) of the TDA. The learned counsel cited John v. Igbo-Etiti LGA (2013) 7 NWLR (Pt. 1352) on the imperativeness of the word ‘shall’ as used in section 43(1)(a) of the TDA. The learned counsel argued that, the exercise of power to enforce the ‘no work, no pay’ rule was merely administrative and does not require court’s order to be legally exercised; and that, section 43(1)(a) did not impose a duty to obtain court’s order for valid exercise of the power.
The learned counsel cited section 5(1)(b) of the 1999 Constitution to argue that the defendants have duty for the execution of all laws made by the National Assembly; and that, the withholding of the salaries of the members of the NARD pursuant to section 43(1)(a) was in furtherance of their duty to execute all the national laws. The learned counsel argued that the infraction committed by the claimants’ members by absenting themselves from duty is one that earns dismissal under the Public Service Rules [PSR]. The learned counsel argued that the claimants couldn’t use the instrumentality of the courts to cover up their illegal conducts and cited Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 147 SC and Enekwe v. IMB (Nig) Ltd (2006) 19 NWLR (Pt. 1013) 156. Thus, the erudite counsel signed off on this aspect of his address and moved to another point: issue of absence of reasonable cause of action against the 2nd defendant.
The learned counsel argued that, because the 2nd defendant was only mentioned in paragraph 4 of the affidavit in support of the originating summons as the Chief Law Officer of the Federation without saying he did anything in relation to this suit, and submitted therefore that, there is therefore no reasonable cause of action against the 2nd defendant, since the claimants did not establish any dispute between them. The learned counsel submitted that, consequently, the claimants have no locus against the 2nd defendant. The learned counsel cited Ofia v. Ejem (2006) 11 NWLR (Pt. 992) 654 and Ajayi v. Adebiyi (2013) 3 WRN 13 to support his legal theory. The learned counsel was of the view that, arising from the foregoing, the proper order the Court should make is either dismissal of the suit or striking out the name of the 2nd defendant. The learned counsel further referred to Ajayi v. Adebiyi [supra]. The learned counsel argued that because the suit could be fully heard to conclusion without the 2nd defendant, the 2nd defendant is therefore not a necessary party and cited Osigwe v. PSPLS MDT. Consortium Ltd (2009) 3 NWLR (Pt. 1128) 386. The learned counsel argued that, for a suit to be proper, there must be a justiciable cause of action and cited some authorities: Egben v. Adefarasin (1985) 1 NWLR (Pt. 549) and others. Thus, the learned counsel signed off this aspect of his arguments.
In conclusion, the learned counsel persuaded the Court to find in favour of the defendants and signed off totally on his brief. The next thing is summary of the RPL filed by the claimants against the written address of the defendants.
C: Further Case Made By the Claimants
The claimants counter-deposed that the suit is not primarily a contest against the ‘no work, no pay’ circular but against all laws and authorities that gave it vigour. The claimants also counter-deposed by saying the claimants usually gave notice of their intention to go on strike with reasons stated; and that, even where no notice is issued, it is the court alone that can decide the legality of the consequential strike embarked upon without notice and that the administrative duties of the defendant does not extent to usurpation of the functions of courts under section 6 of the 1999 Constitution.
Erudite IKE MAXIMUS UGWUOKE franked the RPL in support of the further affidavit against the counter affidavit of the defendants. On the issue of the power exercised by the defendants to stop the salaries of the claimants being administrative, the learned counsel only repeated his original arguments in that regard. On the issue of the 2nd defendant not being a necessary party, the learned counsel cited Green v. Green (1987) 3 NWLR (Pt. 60) 480 on how to determine a necessary party and that the depositions in the affidavit in support show that the 2nd defendant is a necessary party. The learned counsel argued that, the essence of joining the 2nd defendant, as the Chief Law Officer of the Federation is to ensure that he is bound by the decision of this Court interpreting vital laws of the federation and; that, the issues involved are completely adjudicated. The laerned counsel further cited Peennok Investment Ltd v Hotel Presidential Ltd (1982) 12 SC 1 at 21 and Iyimoga & Ors v. Governor of Plateau State [without further details] to support his views further. The learned counsel argued that the declarations sought in this suit touched the 2nd defendant. The learned counsel submitted that the Court is bound to take cognisance of the reliefs sought, being court’s process in its file and cited Cedar v. M.G.A (2001) 18 W.R.N. 144 at 156. Thus, the learned counsel thus ended the RPL by urging the Court to discountenance the counter affidavit and grant the reliefs sought.
Thus ended summary of the addresses. I now move to the most important aspect of a judge’s job in writing judgment: that is, deciding the competing rights of the parties: giving my decision. Since the decision of a court must be one that evokes catharsis, it is by axiom one that must be based on cogent and compelling reasons, showing full grasp of the facts and laws of the case, and doing dispassionate analysis and resolution of the competing rights of the parties, in accordance with the laws of the pertinent facts. I have therefore painstakingly studied the case file. In furtherance of the foregoing, I have also taken full cognisance of the fact that the suit is an originating summons; meaning, it is fought on affidavits. For this reason, I take full cognisance of the laws on resolution of conflicts in affidavits, particularly in relation to originating summons. I have also carefully read all the processes in the file and digested the affidavits of parties, which take the places of both pleadings and evidence. I have also read carefully the addresses of the parties, as evident in my summary above. I have, in line with my further duty, taken quality time to research additional authorities relevant to the case in order to give a reasoned judgment. Off to the sacred duty of giving my decision on the rights of the parties, to put an end to the litigation, I go.
I shall break my decision into two parts. Part A shall deal with preliminary issue and Part B with the substantive suit on the merit.
Part A: Decision On The 2nd Defendant Not Being A Necessary Party
This issue was argued as the second by the defence, but being threshold, I take it first; and in treating it, I start by quoting the Supreme Court in Nigeria Engineering Works Ltd v. Denap Limited & Anor (2001) LPELR-2002 (SC) 22, D-F:
“But it is now well settled and as decided by this Court in Ransome Kuti v. AG Federation (1985) 7 NWLR (Pt. 6) 221; Ezomo v. AG of the Federation (1986) 4 NWLR (Pt. 36) 448 at 459, that the Attorney-General is a defendant or a nominal defendant in civil cases in which the Government is sued. In this case, the action of the Governor Virtue officii as a public officer, which makes it a government act, was being challenged in Court. This makes the Attorney-General a proper defendant to the action.”
That is the ex-cathedra position of the Supreme Court, the oracle of jurisprudence in Nigeria. Its decision cannot be contested here on earth. It has spoken clearly that this issue had long been settled and is not to be disturbed. This is a civil suit against the actions of the executive arm of government of the federation; the federal Attorney-General is thus a proper party to be sued and, he has been so sued in his official capacity and, so be it. Let me even say, a careful construction of the provisions of sections 150(1) of the 1999 Constitution, which creates the office of the Attorney-General of the Federation shows, by necessary implication that, he must be suable on all actions relating to the federal government that deals with the issue of interpretation of the laws of the nation. He could not have been made a Chief Law Officer without corresponding burden or duty to answer suits challenging any illegality in the execution of laws by the executive arm government.
It must be noted that that is the only ministerial office directly named and created by the Constitution. It should be noted too, that, it is the only ministerial office with a double anointing/portion: Chief Law Officer and a Minister of the Government of the Federation. This is not without reason. The reason is simply because the Constitution regards the Attorney-General of the Federation, and not even the President, as the Chief Law Officer of the State, who must take responsibility for all issues of law. All other ministers are directly answerable to the President as part and parcel of the President, while only the Attorney-General is answerable to his atavistic and radical exercise of powers and functions, once appointed, which is why he has a dual function.
So, the objection that the Attorney-General is not a necessary party in this suit because nothing has been specifically alleged against him cannot fly. As the Chief Law Officer of the Federation, he answers for any question about infraction of any law in the execution of federal executive duties. It is by making him a party that he partly gets to know of the alleged infraction and would offer proper advice to the department concerned and; if judgment is per chance obtained against the executive department involved, it makes execution easy, as it ‘might’ [emphasis laid on the word ‘might’] no longer be necessary to notify the Attorney-General again, before carrying out execution against the government, since he was originally a party in the suit, it must be taken that, he has performed his constitutional responsibility of informing the government to honour her obligations arising from the judgment debt – see CBN v. Interstella Communications Ltd (2017) LPELR-43940 (SC) 68-81, D-C. After all, the purpose of making a person a party to an action is to make the outcome binding on him.
The objection against the jurisdiction of the Court on the ground that, the 2nd defendant: the Attorney-General of the Federation is not a necessary party to this suit, is liable to be dismissed, and is accordingly hereby dismissed. I move to the merit of the substantive suit: that is Part B.
Part B: Decision on the Merit of the Substantive Suit
In dealing with the merit of this suit, I am of the view that the five questions submitted for the consideration of the Court on this originating summons dovetailed into just one: do the claimants herein have right to go on strike? Once this question is answered in the negative, it settles the other questions impliedly. And in answering this question, I quote from my previous decision in Suit No. NICN/EN/16/2020 – Enugu State Government v. Dr. Edoga Chima Emmanuel & Anor [delivered 23rd July 2020] p. 24-25 thereof, wherein this Court held on similar question:
“Now, the learned counsel to the defendants argued that the NARD is created pursuant to section 40 of the 1999 Constitution and not under the TUA; and that, therefore, the right being exercised by the defendants is therefore valid. This argument is very specious, failing, as it is, to take cognisance of section 45(1) of the 1999 Constitution, which provides that:
‘Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –
(a) in the interest of defence, public safety, public order, public morality or public health…’ [Underline inserted for emphasis]
Section 31(6)(a) of the TUA is one such law that validly derogates from the potency of section 40 of the 1999 Constitution in the interest of public health thus, making prohibition of strikes in an hospital, which caters for public health, an integral part of essential services, valid and beyond reproach. That Nigeria is attune with the comity of nations on this, is shown by the International Labour Organisation’s [ILO] designation of health services [hospital sectors] as essential services on which strikes could be prohibited in its Decision 840 – see “Compilation of decisions of the Committee on Freedom of Association – Cases in which strikes may be restricted or even prohibited, and compensatory guarantees” at https://www.ilo.org thus, making the Nigerian policy in this regard, by classifying health and hospital services as essential services under section 7(1)(b)(iv) of the TDESA and thereby prohibiting strikes and lockouts in tandem with its international obligations in labour relations and bringing the nation in tune with international best practices.”
The claimants and its members, being in the health industry, do no have the right to embark on strike actions. There is nothing in any international obligation of Nigeria in all the treaties cited that has been infringed. For example, the proviso to Article 8(1)(a)&(c) of the ICESCR recognises restrictions on unionism and the exercise of union rights, provided such restrictions are “prescribed by law and…are necessary in a democratic society in the interest of national security or public order or the protection of the rights and freedoms of others.” Reinforcing this proviso, Article 8(1)(d) & 2 of the ICESCR further says, the right to strike must be exercised in accordance with the municipal laws and; that, the ICESCR “shall not prevent the imposition of lawful restrictions on the exercise of these rights by members…of the administration of the State.” Thus, Bernard Gernigon et al, in ILO Principles Concerning the Right to Strike [First published in the ‘International Labour Review, Vol. 137 (1988), No. 4.’ This Edition 2000] at https://www./ilo.or [accessed 05:08am February 24, 2021] p. 20 say, the ILO Committee on Freedom of Association held the hospital sector to be essential services, where the right to strike may be subject to major restrictions or even prohibitions.
From the foregoing, it is clear that, restriction of strikes in the health sector is a law necessary in a democratic society and therefore constitutes universally recognised lawful exception to all these general laws. The ILO’s conventions and instruments are the epitome of international best practices in industrial relations to which all other general-subjects-treaties must bow because, virtually all nations of the world are members of the ILO and; secondly, because of the legal principle that, once there is conflict between a statute that makes general provisions and one that makes provisions on a specific issue, the specific prevails – see Martin Schroeder & Company v. Major & Company Nigeria Limited (1989) LPELR-1843 (SC) 31-32, A:
“In the words of Lord Selborne, C., in Seward v. Vera Cruz (1) ‘Now, if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold the earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention so to do.’ It follows that the matter in hand is governed by Section 2 of Cap. 2, which remains unaffected, and that Section 30(1) of Cap. 4 cannot be invoked in support of the order under appeal. The above rule of construction applies equally, of course, when the special and the general provisions are enacted in the same piece of legislation.”
It is this rule that has been extended to all types of conflicts between general and special provisions on a specific subject to make the special provisions or the special statutes prevail – see Kraus Thompson Organisation v. National Institute for Policy and Strategic Studies (2004) LPELR-1714 (SC) 18, C-D and Federal College of Education Osiele, Abeokuta v. Ajayi (2014) LPELR-24401 (CA) 17, B-D. And if the ILO’s instruments in issue are the later in time, Akintokun v. LPDC (2014) LPELR-22941 (SC) 62-63, C-A takes care of the issue, as repealing the earlier inconsistent treaties. It is certain the provisions of ILO’s specialized instruments on employment, labour and industrial relations on issues as strike actions by workers or quasi-workers must be superior to those of other statutes that make general provisions that might conflict.
Let me even say, besides the foregoing holding, the claimants cannot in law, be allowed to make profits from their admission of illegality in this case. The claimant has not denied the specific depositions in paragraph 7 of the counter affidavit that, in the particular instance of application of the ‘no work, no pay’ rule in stopping the salaries of the members of the claimants as a result of the strike leading to this case that, the claimants did not serve the requisite notices before embarking on the strike. The claimants just said in their further affidavit:
“That contrary to paragraph 7 of the counter affidavit, the claimant usually issue the Respondent notice of strike action each time they want to embark on industrial action stating the reasons for their intended action. A copy of such notice is hereby attached and marked as Exhibit AA.” [Bold for emphasis]
It is clear by the bold words in the quotation above that, the claimants did not deny the very specific deposition that:
“The claimants’ strike was illegal as they did not serve the 1st Defendant or its agents the requisite notices and they also work [sic] out of the conciliation/negotiation and proceed to strike without any reasonable cause.”
Apart from the evasive denial of the frontal accusation of not serving requisite notices before proceeding on the strike, the claimants too, did not even say anything about walking out of the negotiation table. The evasive denial of not serving the requisite notices is not denial but admission – see GTB PLC v. Oluwadamilare & Ors (2014) LPELR-24387 (CA) 29-30, 33-34, F-B. The claimants are deemed to have admitted the illegality in not serving the requisite notices before embarking on the strike in issue. The Exhibit AA, which merely said is “…a copy of such notice…” is another instance of equivocation in failing to specifically state whether the two copies attached were specifically issued in respect of the strike for which stoppage of their salaries was enforced. It is therefore correct that the claimants, having impliedly admitted failing to serve the requisite notices, could not by this suit circumvent the illegality to benefit from their wrongdoing – see Civil Design Construction Nigeria Limited v. SCOA Nigeria Limited (2007) LPELR-870 (SC) 78, B-D. By the admission of the claimants that they failed to comply with conditions precedent to the strike; the strike becomes illegal, and they therefore lacked the vires to challenge any alleged infraction of the law by the defendants in respect of their illegal strike.
I also, without hesitation, agree with the learned counsel to the defence that the action of the defence in enforcing the ‘no work, no pay’ is purely administrative. It truly has nothing absolutely to do with section 6 of the 1999 Constitution before the administrative power is exercised, but only after, could it. The defendants, by virtue of section 5(1)(b) of the 1999 Constitution, have a sacred burden to enforce a mass of legislations for good governance, peace, safety and security of the land. To accede to the legal postulation of the erudite counsel to the claimants is to accede to administrative lethargy. When a statute has placed a power in the hands of the executive, as in the instant case, it must be exercised. It is only after exercising it that any purported victim can challenge any alleged impropriety in its enforcement; and not that the executive must first go to the courts to obtain order to exercise a power lawfully conferred on her. To argue in such manner would mean that when the police see a person committing crime, they must first go to the courts to obtain order before arresting the person, where the law does not specifically so provide. In any case, the learned counsel to the claimants has not shown within the confines of section 43(1)(a) of the TDA where it is provided that the executive must obtain order of court to enforce the ‘no work, no pay’ rule.
It is also pertinent at this juncture to point out to the learned counsel to the claimants that the fact that someone else committed a particular crime without reproach, is not a licence for another person to commit the same crime, and when sanction is imposed, to argue that, he too should be excused. Though, I agree this might be inequitable, depending on the peculiar circumstance, in a society that thrives on the rule of law, which prides equality before the law, and might set a long ground for industrial disharmony in this very instance or in other instances for general societal discontent, all which are inimical in the long run to the society, but it does not make the enforcement of the law in that seemingly inequitable instance unlawful. I observe that the defendants did not specifically react to this aspect of the affidavit in support, but concentrated in saying that the claimants did not issue the requisite notices before embarking on the strike and also walked out of the negotiation.
Arising from the above, I am of the view that, there is nothing in section 43(1)(a) of the TDA that is repugnant to section 40 of the 1999 Constitution and all the other statutes mentioned in relation to right to strike and the purported wrongful implementation of the ‘no work, no pay’ rule in the health sector of the economy. Having shown that the claimants herein lacked the right to go on strike in the first instance and that, by failing to issue the requisite notices, the strike was doubly illegal, it follows that, all the questions formulated in the originating summons are automatically decided against the claimants and in favour of the defendants. The suit must therefore come to an end.
Having decided all the questions formulated for answer against the claimants and in favour of the defendants, this case is automatically liable to be dismissed and it is accordingly dismissed as totally lacking in merits. It is a frivolous suit and for that reason, since cost follows events, I award cost of N100, 000 [One Hundred Thousand Naira Only] against the claimants and I favour of the defendants. The cost attracts 10% post-judgment interest per annum until finally liquidated.
Judgment is accordingly entered.
HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA