National Union Of Electricity Employees & Anor. V. Bureau Of Public Enterprises (2010)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, JSC

The plaintiffs in this action at the trial court claims against the defendants jointly and severally the following reliefs as per paragraphs 24(1) to (3) of the Statement of Claim:

“(1) A declaration to the effect that having regards to its juristic character as a Registered Trade Union within the meaning of Section 1 (1) of Trade Unions Act, Cap. 437 Laws of the Federation of Nigeria 1990 being such a juristic entity that has duly been issued by the Ministry of Employment, Labour and Productivity with a Certificate of Registration pursuant to Section 5 also of the Trade Unions Act (supra) neither the National Union of Electricity Employees, nor any of its members they together being collectively and in combination a body of persons engaged in the provision of an essential service within the meaning of Section 47 of the Trade Disputes Act and of Section 9(1) of the Trade Disputes (Essential Services) Act, Cap 432 and Cap 433 respectively of the Laws of the Federation 1990 is entitled either to contrive, or to declare, or to embark upon, or to proceed with, or to implement and carry into subsistence

and effect any strike action either within the contemplation of or as defined by Section 47(1) of the Trade Disputes Act (supra) or any strike action of any other kind without first pursuing, fulfilling, exhausting and otherwise ensuring strict compliance with and faithful adherence to all the strict mandatory procedures/conditions precedent prescribed by all diverse Federal Legislation currently prevailing and in force, in regulation of the lawful conduct of ‘essential service’. Trade Unions before they may be at liberty. Lawfully to declare and to embark upon any prospective or threatened strike action of any sort.

(2) An Order of perpetual injunction restraining Mr. Precious Kiri-Kalio, the 2nd Defendant above named Qua General Secretary and also restraining all other functionaries or persons whomsoever who either presently occupy or at any other previous relevant time have occupied either offices, portfolios or positions of authority/responsibility on or within the executive organs of the National Union of Electricity Employees the first (1st)Defendant sued from giving any further instructions, or issuing any further directives, or passing and implementing any further resolutions, or from effectuating any other measures and otherwise from taking any steps, or any further steps of all and any kinds to cause, or to instigate, or to compel, encourage and persuade or in any other manner to enable all or any members of the National Union of Electricity Employees anywhere throughout Nigeria to carry the threat of proceeding with and embarking upon a nationwide strike from Monday 7th January 2002 or as from any other earlier or later date into implementation, force and effect unless and until after they have first pursued, fulfilled exhausted and otherwise ensured strict compliance with and faithful adherence to all the mandatory procedures/conditions precedent prescribed by all diverse Federal Legislation currently prevailing and in

force in regulation of the Lawful conduct of ‘essential service’ Trade Union or alternatively unless and until otherwise directed by specific Court Order.

(3) A further Order of perpetual injunction directed against all members of and against every member of the National Union of Electricity Employees the first Defendant sued in these proceedings wherever in Nigeria such member or members of the within named Union may presently be, restraining them all from acting upon, or from acting in compliance with, or from acting in obedience to any instructions, directive or resolution given, issued, passed or taken for any purpose or objectives that do or may pertain to, or that do or may be connected with any prospective strike action with the consequential effect of withholding or withdrawing them from the performance of their usual daily job, duties and likewise restraining them all by any other means, whatsoever from carrying the threat of proceeding with and embarking upon a nation-wide strike action as from Monday 7th January 2002 or as from any other earlier or later date into

implementation, force and effect unless and until after they have first pursued, fulfilled, exhausted and otherwise ensured strict compliance with and faithful adherence to all the mandatory procedures/conditions precedent prescribed by all diverse Federal Legislation currently prevailing and in force in regulation of the lawful conduct of essential service Trade Union or alternatively unless and until otherwise directed by specific Court Order.”

After entry of a conditional appearance by the defendants/appellants, the plaintiff/respondent has applied for interim injunction to restrain the appellants not to carry out their threat of striking pending the hearing of the interlocutory injunction. It is to be noted that it has also sought and obtained leave of court to sue the 2nd defendant/appellant both in his personal and official capacity. The defendants/appellants picking up the gauntlet from there have raised by a notice of preliminary objection pursuant to Section 251 of the 1999 Constitution and Order 23 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 1994 a number of issues with regard to the competence of the suit as follows:

“1. That the Plaintiff/Respondent lacks locus standi to institute this action.

2. That there is no Employer/Employee relationship between the Plaintiff and the Defendant whatsoever and no contract of any kind between the parties.
3. That this Honourable Court lacks jurisdiction to entertain the suit in view of the provision of Section 251 (1) (n) and (p) of the 1999 Constitution.
4. That the suit itself is an infringement of the Constitutional rights of the Defendants as enshrined in Section 40 of the 1999 Constitution.
5. That the suit itself discloses no cause of action against the Defendants.
6. That the jurisdiction of the Honourable Court to entertain this suit is suspect in that the provision of Section 1 of cap.432 Laws of the Federation as amended by Section 2 (1) a (1) and (2) of Decree No.47 of 1992 as it relates to the rights of the Defendants to embark on industrial action as a Trade Union oust the

jurisdiction of the court, the said provision of the law being an existing Law by virtue of Section 315 of the 1999 Constitution.

7. The joinder of the 2nd Defendant is improper in law, thereby rendering the suit incompetent.
8. The cause of action as endorsed on the Writ of Summons and in the Statement of Claim has lapsed and at best is an academic exercise and an abuse of court processes.”

The notice of preliminary objection is supported by an affidavit of 8 paragraphs deposed to by one Yemi Alao, a Legal Practitioner.

The trial court having carefully considered the above processes before it and the submissions rendered on behalf of the parties with regard to issues 3 and 6 above as pertinent as they are to the trial court’s jurisdiction to entertain this case decided that it has no jurisdiction and struck out the plaintiff’s suit but without ruling on the remaining 6 issues properly raised in the notice of preliminary objection. In other words, the trial court upheld grounds 3 and 6 of the objection by concluding that:

“All other issues raised by the defendant/applicant in the preliminary objection become academic.”