Adams Oshiomhole & Anor. V. Federal Government Of Nigeria & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

The plaintiff commenced this action by a writ of summons on 6th February, 2003 claiming the following reliefs:-

(i)A declaration that the notice of intention to resume strike action dated 7th January, 2004 issued by the defendants to the plaintiffs in opposition to the plaintiffs’ policy of a charge of N1.50k per litre in Price Modulation of Petroleum Motor Spirit and Automotive Gas Oil is not in contemplation of furtherance of a trade dispute as provided for under the Trade Dispute Act Cap 432 LFN 1990 and is contrary to Section 222 of the Constitution of the Federal Republic of Nigeria and therefore irregular, invalid, illegal, unlawful, void and of no effect whatsoever.

(ii) A declaration that the defendants are not entitled to embark on any strike action pursuant to Annexure 1 and/or in respect of any matter not ambit of the provisions of the Trade Dispute Act Cap 432, LFN, 1990

(iii) A declaration that the 1st defendant cannot as a trade unionist and officers of the 2nd defendant, or howsoever acting under the banner or aegis of the 2nd defendant induce any worker or employee in Nigeria to embark on any strike action to protest the plaintiff’s Price Modulation Policy of N1.50k on every litre of PMS/AGO or any matter not being within the preview and ambit of the provisions of the Trade Disputes Act Cap 432 LFN 1990.

(iv) A declaration that the defendants’ notice of intention to resume strike action dated 7th January, 2004, Annexure 1, issued in opposition to the plaintiff’s policy of a charge of N1.50k price modulation on every litre of Petroleum Motor Spirit and Automotive Gas Oil amounts to the tort of unlawful inducement of breach of their number workers various and individual contracts of employment with their various employers including the plaintiffs and that the said Annexure 1 is illegal, unlawful, unconstitutional, null, void and of no effect whatsoever.

(v) An order setting aside the said notice of intention to resume strike action dated 7th January 2004 issued by the defendants and served on the plaintiffs as being irregular, illegal, unlawful and unconstitutional.

(vi) An order of injunction directed against the defendants jointly and severally by themselves or through servants, agents, official, privies, successors-in-title or otherwise however from embarking on any strike action in protest against the N1.50k per litre Price Modulation Policy of the plaintiff on Petroleum Motor Spirit (PMS) and the Automotive Gas Oil (AGO) or any other policy of the plaintiff’s not being within the preview of the Trade Disputes Act Cap 437 LFN 1990.

The writ of summons was supported by a 21-paragraph statement of claim and one annexure. The defendants filed a 42-paragraph statement of defence and counter-claim. The plaintiff further filed a 19-paragraph reply to the statement of defence and counter-claim.

The defendants in their counter-claim sought the following reliefs.

(i) A declaration that the executive decision of the plaintiffs to impose a tax of N1.50k per litre of Petroleum Motor Spirit and Automotive Gas Oil on or about Sunday the 1st of 2004 is illegal and unconstitutional, null and void and of no legal effect.

(ii) A declaration that the plaintiffs are not competent to increase the price of petroleum product without a law validly passed by the National Assembly.

(iii) AN order of perpetual injunction restraining the plaintiffs whether by themselves, their agents, privies and servants from preventing the defendants from protesting against policies considered inimical to their interests.

The plaintiffs filed a defence to the counter-claim in which the plaintiffs contended that the defendants as a trade union have no locus standi to challenge on the platform of a trade union the political and economic decisions of the plaintiff, and that there was no need for an Act of the National Assembly before the adjustment of prices of petroleum products.

The plaintiff called two witnesses while the defendants called one witness. In a judgment the Federal High Court coram: R. N. Ukeje Chief Judge found that the plaintiff/respondents succeeded on all grounds and their claim sustained while the defendants/appellants appealed against the above decisions in a 21 grounds of appeal. As no issue was formulated from grounds 19 – 21 they are hereby struck out and grounds 1 – 18 are in use.

The appellants in a brief of argument filed on 22/6/06 posed 6 issues for determination which are:-

1. Whether the learned trial Chief Judge of the Federal High Court was right to have raised and determined suo motu the issues of:

(i) the legality of the office of the President of the Nigeria Labour Congress (NLC):

(ii) The statutory functions of the Central Working Committee of the Nigeria Labour Congress.

(iii) Non-affidavit of the National Union of Petroleum and National Gas Workers (NUPENG); and

(iv) The capacity of the 1st appellant to sue or be sued as a natural person without inviting parties to proffer arguments on their (Grounds 1, 2, 3, 4, 5, & 6).

2. Whether the lower court was right to have held that the appellants cannot call out workers on strike by virtue of section 34 of the Trade Union Act (Cap 437) Laws of the Federation of Nigeria 1990. (Grounds 7, 8, 9).
3. Whether the appellants and the respondents are not in a relationship of workers and employers caught in a trade dispute by virtue of section 47 of the Trade Disputes Act (Cap. 432) Laws of the Federation of Nigeria, 1990 (Grounds 12 & 13).
4. Whether the fundamental rights of the appellants to freedom of expression and freedom of assembly guaranteed by Section 38 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 9 and 10 of the African Charter on Human and Peoples’ Rights (Ratification) and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990 exclude peaceful protests against the N1.50k fuel tax imposed on Nigerians by the Presidents (grounds 14, 15, & 16).
5. Whether the constitutional validity of the N1.50k fuel tax on Petroleum Motor Spirit and Automatic Gas Oil does not call for determination by the lower court having regard to the facts and circumstances of this case (Ground 17).
6. Whether the dismissal of the Appellants’ counter-claim by the lower court is justified in the light of the pleadings, oral testimony of witness, the addresses of counsel to the parties and the findings of the learned Chief Judges in the substantive case (Ground 18).

The respondents on their part raised six issues also which are:-

1. Whether the pricing policy in respect of petroleum and or the introduction of N1.50.00 every litre of PMS qualifies as “a trade dispute” for which the defendants/appellants as a trade union can embark on a strike action (Grounds 8, 13, 16).
2. Even if it qualifies as a trade dispute, which is denied, whether the defendants/appellants as a trade union can coerce or intimidate non members of the striking union to directly or indirectly participate in the strike or direct non- workers to forcibly stay away from their place of work. (Grounds 7, 9, 15).
3. Assuming that the pricing policy qualifies as a trade dispute for which they can go on strike, which is denied, whether the defendants/appellants in embarking on strike action are entitled to close down air ports, stop movement of vehicles, cause students, market women, farmers, artisan, bankers and the general public to forcibly stay at home against their will. (Grounds 14, 15).
4. Do the defendants/appellants have locus standi as a trade union to institute the counter-claim to challenge the political decision of the government (Grounds 1, 2, 3, 4, 5 and 6).
5. Whether the defendants/appellants as a trade union can take advantage of Section 40 of the Constitution to protest government policy on the platform of trade union and intimidate and harass citizens.
6. Whether the plaintiffs/respondents need any Act of the National Assembly to introduce price modulation in the oil industry

For convenience I shall use the format of the issues as arranged by the Appellants.

ISSUE NO 1

Mr. Femi Falana, learned counsel for the appellants contended that in the pleadings and oral evidence of the witnesses called by the parties as well as the written and oral submissions of their counsel the issues pertaining to:-

(i) the legality of the office of the President of the NLC;

(ii) the statutory functions of the NLC Central Working Committee;

(iii) the non-affidavit of the National Union of Petroleum and Natural Gas Workers (NUPENG) and;

(iv) the capacity of the 1st appellant (Comrade Adams Oshiomhole) to sue or be sued as a natural person were never raised by the parties. That it was the lower court that raised them while writing its judgment. He referred to pages 174 – 179 of the record). That although the lower court considered the said issues vital to the determination of the substantive suit it never deemed it germane to invite the counsel to the parties to proffer arguments on them. Thus, without affording the parties the right of fair hearing the learned Chief Judge proceeded to determine each of the issues formulated by her.

Learned counsel for the appellant further stated that if the lower court had invited the parties to react to the issues so formulated and addressed suo motu the attention of the Learned Chief Judge would have been drawn to the relevant portions of the evidence led in court and the provisions of the law. That having not invited counsel to address her on the aforesaid issues the highly faulty findings of the learned Chief Judge are liable to be set aside. He referred to Agbi v. Ogbe (2004) 18 WRN 36 at 69; (2003) 15 NWLR (Pt.844) 493.

Learned counsel stated on that it is conceded that an appellate court has the discretion to raise issues suo motu but before the determination of such issues the parties involved in the matter must be given the opportunity to be heard, more particularly, the party that may suffer a loss as a result of the consideration of the issues so raised suo muto. He cited Odiase v. Agho (1972) 1 All NLR (pt.1) 170; Ajao v. Ashiru (1973) 11 SC 23; Atandav. Lakanmi (1974) 3 SC 109, (1974) 1 All NLR (pt. 1) 168); Adegoke v. Adibi (1992) 5 NWLR (pt. 242) 410; Marwa v. Abdu (1986) 1 NWLR (pt. 17) 437; Otapo v. Sunmonu (1982) 2 NWLR (pt. 58) 587 at 605.

Mr. Falana of counsel said having raised and determined the aforesaid issues suo motu without hearing the parties thereof the fundamental right of the appellants to fair hearing was grossly violated by the lower court and this issue No.1 should be resolved in favour of the appellants.

In response learned counsel for the respondents submitted that a Trade Union or organized labour may only exercise a right to peaceful assembly and association as a “Trade Union” on their right only in respect of a trade dispute or disputes. He referred to Section 47 of the Trade Disputes Act, Laws of the Federation 1990. Also the case of B.P.E. v. N.U.E.E. (2003) 13 NWLR (pt. 837) 382 at 402 – 403, 404; NURTW v. Ogbodo (1998) 2 NWLR (pt. 537) 189 at 198 paras C – G.

Mr. Akpan went on to say that even where the right to strike by the respondents as Trade Union exists, such right is subject to the statutory procedures set out in Sections 3 and 5 of the Trade Disputes Act Cap. 432, Laws of Federation of Nigeria 1990. That no trade union or worker may take part in a strike in connection with any trade dispute unless the requirements of section 17 (1) Trade Disputes Act 1990 are met and the right to strike relates only to and is available only in contemplation or furtherance of a trade dispute. On the definition of a trade dispute learned counsel referred to Section 47(1) Trade Disputes Act, Cap. 432, Laws of Federation 1990.

Learned counsel for the respondent further contended that political considerations, opposition to government policy such as fuel tax (Exhibits D – D1) or other considerations of such nature are not trade disputes upon which the appellants have any right to protest. He stated on that petroleum pricing policy is a political/economic policy of the government and has nothing to do with the terms and conditions of employment of the workers who are members of the 2nd appellants.

That the terms of employment are contained in the individual letters of employment and the appellants have failed to tender any condition of service containing pricing policy as one of the conditions of service of the employee. He cited Section 149(d) of the Evidence Act. That a protest over a proposed Bill to be passed by parliament is not a trade dispute. He cited Associated Newspapers Group limited v. Flynn (1971) 10 K. I. R. – cited in 1971 Annual Survey of the Commonwealth Law P. 677; Mercury Ltd. v. Scott-Garner (1984) 1 All ER 180 at 202; General Aviation Services (UK) Ltd. v. Transport and Federal Workers Union (1975) 1 CR 276; BBC v. Hearn (1978) 1 All ER 111; NWL Ltd. v. Woods (1979) 3 All ER 614.

In answer to the question posed in this issue I would reiterate that indeed when a court raises a point suo motu, then the parties must be given an opportunity to be heard on the point, particularly the party that may suffer punishment as a result of the point raised suo motu. I refer to Adegoke v. Adibi (1992) 5 NWLR (pt. 242) 410 at 420 – 421; Odiase v. Agho (1972) 1 All NLR (pt. 1) 170; Ajao v. Ashiru (1973) 11 SC 23; Atanda v. Lakanmi (1974) 3 Sc 109.

The point however cannot be lost that a lapse like raising an issue suo motu by a court without hearing from the counsel would not have a fatal effect on the case if it did not occasion any miscarriage of justice especially as in this case where the point at issue was one of law, and not the only base of the decision. See Ajao v. Ashiru (1973) NSCC 525; (1973) 11 SC 23.

ISSUES 2 AND 3:

Learned counsel for the appellant dealt with the two issues together and he contended that in pleadings and oral evidence the appellants proved that the decision to resume their suspended strike over the issues listed in their strike notice was meant to protect the legitimate interests of the generality of Nigerian workers but that the learned Chief Judge and the respondents laboured under the erroneous impression that workers had no business interfering in the socio-economic policy of the Federal Government and based on that the lower court held that workers cannot protest outside the narrow ambit of the terms of their individual contracts of employment. That the lower court and respondents had failed to advert their minds to section 34(1) of the Trade Unions Act and so appellants were empowered to give an opinion to someone about what they should do. Also that appellants were empowered to represent the general interest of workers and collect and disseminate information to their on economic and social matters and so appellants cannot be accused of contravening the law by advising them on the N1.50k fuel tax or other economic and social matters. That the issue at stake being a political or economic matter the appellants were competent to advise the workers to embark on strike since the vexed issue of N1.50k fuel tax is part of the socio-economic policy of the Respondents. That the Trade Union Act specifically recognises the right of trade unions to operate other than for purposes of regulating terms and conditions of employment. He cited Section 1(2) of the Trade Union Act. He referred to the case of Pepsi-Cola Canada Beverages (West) Ltd v. Retail wholesales & Department Store, Union (2003) CHR 501.

Mr. Falana further submitted that the appellants were entitled to use economic pressures to press home the demands of workers for better conditions of services in particular and the improvement of the living conditions generally. He stated that apart from Section 23 of the Trade Union Act which prohibits tortious acts against trade unions and its officials in contemplation of or in furtherance of a trade dispute section 43 thereof provides that an act done by a person in contemplation of or in furtherance of a trade dispute shall not be actionable in tort on the ground that it is an interference with the trade, business or employment of some persons or with the right of some other persons to dispose of his capital or labour as he wishes. He referred to Isaac Jegede v. Kasumu Kadiri (1987) 4 NWLR (pt. 65) 460 at 479.

Learned counsel went on to say that the lower court failed to appreciate that strike is no longer illegal per se in Nigeria. That under the English Law a strike is viewed as a collective withdrawal of labour in breach of a contract of employment of individual workers with their employers. He cited Rookes v. Barnard (1964) AC 1129; (1964) 1 All ER 367. That in Nigeria on the other hand a strike is viewed as a mere temporary suspension of a contract of service. Thus a trade union will not be registered if its registered rules do not contain a clause to the effect that “no member of the union shall take part in a strike unless a majority of the members have in a secret ballot voted in favour of the strike”. Therefore learned counsel said workers who engage in industrial action are not deemed to have repudiated their contracts of employment. Hence, they are liable to forfeit their salary during the duration of a strike. Also the duration of the strike is not reckoned with for the purpose of calculating the period of continuous employments of the striking workers. He cited Section 42 of the Trade Disputes Act and Odugbesan v. Hon. Minister of Health and Social Service & Ors. (1994) FHCLIR 168 at 190-191.

Learned counsel for the appellants stated that assuming without conceding that no trade dispute has arisen in this case appellants’ alternative submission is that the fuel tax of N1.50k per litre is an inter union dispute between the parties herein. He cited NURTW v. Ogbodo (1992) 2 NWLR (Pt. 537) 189 at 191. That applying the legal principles in that case the matter at hand that is the disengagement between the parties herein over the N1.50k per litre fuel tax is an inter union dispute between the 2″ Appellant- a combination of workers and the Federal Government in a combination of employers in the public service of the Federation and so falls within the ambit of the Trade Disputes Act.

Mr. Akpan of counsel for the respondents stated that the action of the appellants in coercing and intimidating non- members and preventing them from doing their lawful work is unlawful and amounts to unlawful inducement in breach of the contract of employment of the individual members of the Union. He cited Express Newspaper v. Keys (1980) 11 LR 247; BBC v. Hearn (1978) 1 All ER 111.

Learned counsel for the respondent went on to say that it is in view of the evidence before the court, it is not in dispute that the Appellants in previous strikes had stopped movement of vehicles closed down airports, coerced market women, bankers, students and general public to stay at home. That in the course of the strike, houses were burnt, vehicles were destroyed, movement was restricted by the almighty order of the appellants. That it is a notorious fact that the appellants had again threatened a repeat of the previous action. That it is submitted that no trade union has the legal right to subject any other person i.e. non-members, to any kind of constraint or restriction of his personal freedom. He stated on that the right to embark on strike by a trade union is statutory and should be exercised strictly according to law. That even when the subject matter is a trade dispute (which is not in this case) the union is bound to act peacefully and in good order, without threats or incitement to violence or obstruction to traffic on land and in the air. That what Appellants set out to do was not only wrongful but criminal in many respects like criminal intimidation, criminal trespass, obstruction on public way and disturbance of public peace.

That while a trade union may peacefully persuade non-member to join in their strike, it is unlawful for a trade union to subject any other person to any kind of constraint or restriction of his personal freedom. He cited Section 42(1) of the Trade Union Act Cap 437 Laws of Federation of Nigeria 1990, which provisions is similar mutatis mutandi to the English Law Section 2(1) of their Trade Disputes Act 1906. That in a long line of cases Section 2(1) of TDA 1906 has been given judicial interpretation to the effect that a trade union cannot obstruct the highway which is for the common use of all citizens, prevent motorist from moving a fortiori, airlines from flying, harass non-members and prevent them from running their legitimate businesses. He referred to Tynan v. Balmer (1966) 2 All ER 133, Broome v. D.P.P (1974) 1 All ER 314; Kavanagh v. Hiscock (1974) 2 All ER 177 and Hubbard v. Pitt (1975) 3 All ER 1.

Learned counsel said that the action and statements of the appellants directing market women, students and all Nigerians to stay at home, buy food and store, motorists to keep off the streets, airports to be closed, planes not to fly, banks and petrol stations not to open etc are calculated to make the country ungovernable. That picketing of this type constitutes serious danger to peace and security and is a serious criminal offence. That appellants are not entitled to go on strike on the price of oil which does not form part of their conditions of service.

The salient point in these two issues is whether the appellants could within the ambit of the Trade Disputes Act call for the strike action in view of Sections 34 and 47 of the Trade Disputes Act Cap. 432, Laws of the Federation of Nigeria 1990.

For the purpose of ascertaining whether a dispute qualifies as a trade dispute within the meaning of the Trade Disputes Act, the difference must be made between a person who is a member of a union and one who is a worker. Whilst the former is a person who constitutes the Union or belongs to it, the latter is an employee. See N.U.R.TW. v. Ogbodo (1998) 2 NWLR (pt. 537) 189 at 198.

In trade union matters, the determination of the concept or ambit of a trade dispute is most crucial in the construction of the rights of the parties. It is the pivot on which trade unionism in labour relationship devolves. Although trade dispute as a concept is used for a number of purposes, the main function of it is to define the freedom to strike, which is the cessation of work by a body of persons, an a trade dispute invokes the “conciliation” and “arbitration” jurisdiction provided for in the Trade Disputes Act P.199. N.U.R.TW. v. Ogbodo (1998) 2 NWLR (pt. 537) 189.

For a dispute to be declared a trade dispute within the meaning of Section 47 of the Trade Disputes Act Cap. 432, Laws of the Federation of Nigeria, 1990, the following ingredients must be present:

(a) there must be a dispute;

(b) the dispute must involve a trade;

(c) the dispute must be between:

(i) employers and workers; or

(ii) workers and workers;

(d) the dispute must be connected with

(i) the employment or non-employment, or

(ii) the terms of employment, or

(iii) physical conditions of work of any person.

In the light of the principles above explored I really cannot make a finding in favour of the appellants in resolving these two issues, I am satisfied that what appellants did and sought to do were not in line with a trade dispute properly so called.

ISSUES NO.4:

Learned counsel for the appellant stated that by the combined effect of Section 34 Trade Unions Act and Sections 39 and 40 of the Constitution as well as Articles 9, 10, and 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap.10) Laws of the Federation of Nigerians 1990 the appellants are entitled to assemble peacefully for the purpose of protesting against the N1.50k full tax. He cited Musa v. PRP (1981) 2 NCLR 763 at 768; INEC v. Musa (2003) 10 WRN 1 at 48; (2003) 3 NWLR (Pt.806) 72.

Learned counsel said that the right of Nigerian workers to freedom of association cannot be tied to their employment. He cited Nwankwo v. The state (1985) 6 NCLR 228. He stated further that state policy was stated by the President himself which recognises the right of workers and civil society organizations to protest against economic measures of the Government. He cited Ike v. Nzekwe (1975) All NLR 17 at 22. That the State Policy of the Federal Government on peaceful protests has the force of law in Nigeria more so since it is in tandem with the provisions of Sections 39 and 40 of the 1999 Constitution and articles 9, 10, 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap. 10) Laws of the Federation of Nigeria 1990 which guarantees the fundamental right to freedom of association and freedom of expression.

In response learned counsel for the respondents stated that the appellants have no locus standi to seek the relief sought in the counter-claim. That Section 6(6) of the 1999 Constitution are for determination of any question as to the civil right and obligations of that person. He referred to Adesanya v. President, Federal Republic of Nigeria (1981) 2 NCLR 358; Edwin Ume Ezeoke v. Makarfi (1982) 3 NCLR 663 at 672.

In this question at the Issue 4, the appellants are seeking anchor in the Constitutional provisions of freedom of association, assembly and protests within Sections 39 and 40 of the 1999 Constitution. The respondent on the other hand rejects that concept positing that that protection of those constitutional provisions do not avail the appellants in view of what the appellants were embarking. In INEC v. Musa (2003) 3 NWLR (pt. 806) 72 it was held that:-

1. The Constitution is supreme, and the validity of any Provision will be tested by the following interrelated Propositions, that is:

(a) All powers, legislative, executive and judicial must ultimately be traced to the Constitution;

(b) The legislative power of the Legislature cannot be exercised inconsistently with the Constitution where it is so exercised, it is invalid to the extent of such inconsistency;

(c) Where the Constitution as enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution has enacted must show that it has derived the legislative authority to do so from the Constitution.

(d) Where the Constitution sets the condition for doing a thing no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way, directly or indirectly, unless the Constitution itself as a attribute of its supremacy expressly so authorized, P. 157.

Provisions in a Constitution are of equal strength and constitutionality. No provision is inferior to the other, and a fortiori, no provision is superior to the other. See INEC v. Musa (2003) 3 NWLR (pt. 806) 72. Therefore the appellants’ right to free assembly and freedom of association cannot override the obligations of the appellants not to exercise those freedoms at the expense of public good and the peace and order of society. That is to say that since the appellants are using a Trade Dispute to defend their action and the proposed strike they must do so within the definition of a trade dispute as envisaged by the Trade Disputes Act Laws of Federation of Nigeria 1990. In Section 47 of the Trade Disputes Act it was defined as follows:-

“Trade Dispute” means any dispute between employers and workers, or between workers and workers, which is connected with their employment or non-employment, or the terms of employment and physical conditions of any person”.

In the case of BPE v. N.U.E.E. (2003) 13 NWLR (pt. 837) 382 at 402, 403, 404 it was held that for the provisions of the Trade Dispute Act to apply, there must be a clear case of an employer/employee relationship between the parties, and the point of agreement between them must point unequivocally to a trade dispute.

In NURTW v. Ogbodo (1998) 2 NWLR (Pt. 537) 189 at 198 it was held that the dispute in order to come within the Act must involve trade as distinct from a political dispute for example.

The definition in the Act and the adumbrations in those authorities above cited are self explanatory and there is little to say other than that what the appellants set out for like calling out market women and school children and directing that all vehicular movements cease including all airlines shut down are certainly not what the Act provided for or envisaged, since one cannot put these other persons within the employment covered by the Trade Unions being used. Therefore Issue No.4 cannot be answered in favour of the appellants.

ISSUES 5 AND 6:

Mr. Falana of counsel stated that in their counter claim at the court below the decision of the Respondents to impose a tax of N1.50k per litre of PMS and AGO was challenged. Also that the legal validity of the increase in the prices of petroleum products without a law validly passed by the National Assembly was also questioned. He stated further that the appellants also sought a declaratory relief on their fundamental right to assemble peacefully and protest against policies of the Government.

He said that respondents joined issues with the appellants in respect of their counter-claim and said what respondents introduced was “price modulator” of N1.50k per litre of PMS and AGO. Learned counsel said the trial Chief Judge ignored the evidence led on the issue of N1.50k fuel tax, the written submissions made thereon without any legal justification. That it is trite law that where a trial court fails to properly appraise and evaluate evidence led before it to arrive at the correct decision the appellate court has the duty to ensure that the error of the trial court is corrected. That since the credibility of witnesses is not in issue this court has the power under Section 16 of the Court of Appeal Act to appraise the evidence on record and arrive at the correct decision. He referred to Maja v. Stocco (1968) 1 All NLR 141; Sarhuna v. Lagga (2002) 3 NWLR (pt. 754) 322; F.G.N v. Oshiomhole (2004) 3 NWLR (pt. 860) 305; Attorney-General Bendel State v. Attorney-General Federation (1982) 3 NCLR 1 at 64. That since Section 55(1) of the 1979 Constitution is in pari material with Section 59(1) of the 1999 Constitution, it is submitted that the proposal to impose the fuel tax of N1.50 per litre on PMS and AGO ought to have been presented to the National Assembly by way of money bill and then passed into law. That Sections 58 and 39 of the Constitution set out the mode of passing any money bill “for the imposition of or increase in any tax, duty or for any reduction, withdrawal or cancellation thereof’. He stated on that since the National Assembly did not pass any enabling law before the imposition of the N1.50k fuel tax it is submitted that it is illegal, unconstitutional, null and void and of no effect whatsoever. That Section 3 of the Petroleum Products Pricing Regulatory Agency Act 2003 which empowers the Board of the Agency to determine pricing policy cannot be exercised in such a way that the power of the National Assembly to legislate on the fuel tax is usurped by the Board. He cited Attorney-General Abia State v. Attorney-General Federation (2002) 6 NWLR (pt. 763) 264.

Learned counsel for the appellants said having regard to the evidence led by both parties, the respondents have not seriously challenged the reliefs sought in the counter-claim. That, the appellants had proved that the deregulation of the downstream sector of the petroleum industry is not backed up by law and so the increase in the prices of the petroleum products by the Executive arm of government is illegal ab initio. That the respondents have not justified the attempt to use the lower court to abolish the fundamental rights of Nigerian workers to protest against unpopular measures imposed on them by the Government and so this court should grant the reliefs sought by the counter-claimants in their counter-claim at the lower court.

Mr. Akpan for the respondents said that Trade Unions are subject to or governed by the Trade Union Act and provides for when the Trade Union can go on strike as well as the limits of picketing. Also that Section 40 of the Constitution has provided for citizens to associate to form political parties but political parties are subject to electoral law. Also that all sorts of voluntary associations may be formed and registered but the powers of such registered unions are severely limited to their registered objectives. That clearly Section 40 of the Constitution has not provided for strike, trade dispute or picketing. That Section 40 of the 1999 Constitution is not a licence for a trade union to go on strike on all issues or matters. That Section 40 of 1999 Constitution is similar at Article 11 of European Economic Community Treaty of Rome 1950 and in the case of Expressway Newspapers v. Keys (supra) it was held that the right to peaceful assembly and association and to belong to a trade union of choice does not extend to a right to induce breach of employment contract or to protest government policy when such matter was not a trade dispute or in furtherance or contemplation of same. This was in interpretation of Article 11 of the EU Treaty of Rome 1950.

Learned counsel for the respondents submitted that for appellants, registered as the workers union to attempt to function as a political party would be unconstitutional and therefore illegal. He cited Section 222 Constitution of Federal Republic of Nigeria and INEC v. Musa (2002) 17 NWLR (pt. 796) 412, 454.

Learned counsel said the notice of intention to resume strike given by the appellants to the respondents is a political strike challenging the government policy and this they were not so entitled.

Learned counsel for the respondent on Issue 6 said assuming without conceding that there was an increase in petroleum pricing that the appellants argument in this regard is misconceived in view of the Petroleum Products Pricing Regulatory Agency (Establishment) Act 2003 which regulates the price of Petroleum products in Nigeria which Act is that of the National Assembly. That by Section 1 (3) of the Act the agency is subject to the direction and supervision of the President only.

That there is no constitutional provision requiring the National Assembly to legislate on every price increase or reduction of same.

Mr. Akpan of counsel said they had shown clearly that the N1.50k fuel modulation price is not a tax and having shown that there is nothing in the constitution that requires the National Assembly to pass money bill in the introduction of same, the argument of the appellants in this regard is misconceived. That these two issues be resolved in favour of the respondents.

Having considered the facts from the record and the findings and conclusion of the learned Chief Judge it seems necessary to say that no court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. See Holman v. Johnson (1775 -1802) All ER 98. Where the facts found by the Court of Trial are wrongly applied to the circumstances of the case or whether the inference drawn from those facts are erroneous or where the findings of facts are not reasonably justified or supported by evidence given in the case, the Court of Appeal, is in as much a good position as the trial Court to deal with the facts and to make proper findings. See Maja v. Stocco (1968) 1 All NLR 141.

The principle in the Maja v. Stocco (supra) cannot apply since the Court of trial properly considered all that was before her and came to the right conclusion that what was being done was something beyond what was authorized and so could not stand to the point of justifying the favourable consideration of the counter-claim. See Tynan v. Balmer (1966) 2 All E. R. 133.

Furthermore the Federal Government properly acted within the law that being the Petroleum Products Pricing Regulatory Agency Act 2003, a law enacted by the National Assembly and so the seductive arguments of the appellants have had non effect whatsoever.

Therefore I hold that this appeal lacks merit and I dismiss it without hesitation.

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Other Citations: (2006)LCN/2145(CA)