Court verdict on NLC and strike: Where Justice Ukeje erred

Introduction

ON September 21, 2004, the Chief Judge of the Federal High Court, the Honourable Justice Roseline Ukeje, delivered a historic ruling castrating the powers of the Nigeria Labour Congress (NLC). In particular, the judge declared the office of the President of the Nigeria Labour Congress as illegal and unknown to law. The whole decision could be summarised as follows:

1. The Trade Unions Act and the Trade Disputes Act do not recognise the office of President of the Nigeria Labour Congress or assign to it any statutory functions and so it is illegal and unknown to law;

2. The rights to freedom of association and assembly guaranteed under section 40 of the 1999 Constitution do not extend to issues not arising from the contract of employment. In this regard, the issue of fuel tax is not contemplated among the issues over which workers may go on strike; and

3. The NLC cannot embark upon collective bargaining on behalf of workers unless it is called upon to do so by an affiliate union. Thus, the NLC lacks the power to call out workers on strike or protest.

This piece is meant to assert the legal position that workers in Nigeria can embark upon a protest on any issue under the sun and that the office of NLC President is recognised by law.

Gladly enough, the judge based her reasoning on both the Trade Unions Act and the Trade Disputes Act, which are not foreign legislations. The issues arising from the ruling will now be tackled one after the other.

Status of the Nigeria Labour Congress

The NLC is deemed to have been established on November 1, 1973 by virtue of section 33 (1) and (2) of the Trade Unions Act which provide as follows:

"On the coming into force of this section, and without any further assurance, the Registrar shall register the Nigeria Labour Congress

as the only Central Labour Organisation without any conditions ..." (2) Trade Unions specified in Part A of the Third Schedule to this Act shall be deemed to be affiliated with the Central Labour Organisation."

By all possible interpretations therefore, the NLC is a body established by law. Logically, and I dare say legally (the Interpretation Act), if a body is established by law, offices created by that body are valid by virtue of the legality of the body itself. Those offices derive their legality from the very existence of the body creating them. But this is only scratching the surface of this matter.

By virtue of section 1 (1) of the Trade Unions Act:

'trade union' means any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination question would or would not, apart from this Act, be an unlawful combination by reason of any of its purpose being in restraint of trade, and whether its purposes do or do not include the provision of benefits for its members."

The NLC, if it is a collective or combination of workers, is a trade union with affiliate unions. By virtue of this last part of the foregoing provisions, it is clear that a trade union (such as the NLC) can exist for purposes which "... do not include the provision of benefits for its members."

The judge stated in her judgment that no statutory functions are assigned to the office of President of the NLC and so it is unknown to law. I humbly beg to disagree. From the provisions of the Trade Unions Act, it is not necessary for any particular law to prescribe functions for the office of the President of the NLC or indeed mention that office. In other words, the fact that the office of President of NLC is not specifically stated under the Trade Unions Act or indeed any other law does not ipso facto make the office illegal or unknown to law. Clearly, once the statute has created a body, it is left for that body to determine its own rules, create its own offices and determine its own procedure.

Under and by virtue of section 29 (1) of the Trade Unions Act, two or more trade unions may form a federation of trade unions. Furthermore, section 32 (1) of the Act provides as follows:

"no person shall be an official of more than one federation of trade unions at the same time: Provided that nothing in this subsection shall prevent a person who is an official of a federation of trade unions from being at the same time an official of a trade union or of the Central Labour Organisation, or of all three."

By virtue of section 52 of the Trade Unions Act which the judge relied upon:

"official", in relation to a body (NLC) which is capable of being registered, means any person holding an official position in that body and accordingly includes in particular any President, secretary or treasurer thereof, and every member of the committee of management thereof."

How can it then be said that the office of President of the NLC is unknown to law? The matter is best understood as follows. Adams Oshiomhole is from the Federation of Textile Workers' Union and on that platform he became a member of the NLC, his primary union having been affiliated to the NLC. By stating that the office of President of NLC is not mentioned by law, His Lordship is simply saying that Adams Oshiomhole is not an 'official' of any trade union as defined by the Trade Unions Act. Three questions were left unanswered by His Lordship: Can workers gather without any leadership? Will the Trade Unions Act establish the Nigeria Labour Congress with the intendment that it should exist without a leader? If the Trade Unions Act recognises the office of President for the federation of trade unions, why would it be said that the same Act does not recognise the same office of President for the Central Labour Organisation? In other words, General Olusegun Obasanjo is the President of Nigeria. Would he then drop the title of President when he gets to the federation of African countries or indeed, lead that federation without a description? Section 32 (1) of the Trade Unions Act does not support the position of the judge by providing that an official of a federation of trade unions can be an official (President) of a trade union (in the case of Oshiomhole, Textile Workers Union) or of the Central Labour Organisation (the NLC), or of the three.

The Legal Practitioners Act only recognised the Nigerian Bar Association (NBA) as a body of legal practitioners. It does not mention in any of its provisions the office of President. Would that then mean that the office of President of the NBA is illegal or unknown to law? Sections 249 and 250 that create the office of Chief Judge of the Federal High Court do not prescribe specific functions for that office? Should we then say that the Chief Judge should only be reporting in her office and drink tea alone? In order to know the officers of the NBA and their functions, one will examine the constitution of that body and to be able to determine the duties of the office of Chief Judge of the Federal High Court, one will look at the Federal High Court Act and the Federal High Court (Civil Procedure) Rules. In the same vein, to be able to determine the office of President of the NLC and his functions, one will look at domestic rules made by that body. It cannot, therefore, be said that once the Act establishing the NLC does not mention the office of President, then that office is illegal or indeed unknown to law. Once the statute gives a right, there is in that right an inherent power to put in place the structures that would enhance the exercise of that right. In other words, the constitutional right to assemble contemplates that there will be a leader for that assembly. For example, the constitution only permits the registration of political parties by INEC, but the constitution did not and cannot prescribe the number of parties to be registered or indeed the designation and number of officers to be created by the parties.

Similarly, section 41 of the 1999 constitution states simply that "every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom." Ordinarily, it should be the business of any citizen to arrange his mode of exit (travelling) out of Nigeria. But no citizen can travel out Nigeria without a passport. It means therefore that the right to freedom of movement out of Nigeria cannot be exercised without a passport. Which was why the Supreme Court held in the case of The Director, State Security Services v. Olisa Agbakoba (1999) 3 NWLR (Pt. 595) 314 that the right to own and hold a passport is incidental to the right of movement. The late Honourable Justice Ogundare explained the logic better at pages 365-357 of the report:

"It is a matter of common knowledge that for a Nigerian to travel out of Nigeria to another country he must first hold or possess a valid passport issued by the Government of Nigeria... Without this document, he cannot leave Nigeria or be admitted to another country. It follows therefore that without a passport a citizen of Nigeria cannot exercise the right guaranteed him by the Constitution, of egress from Nigeria. Can it then be said that the right to hold a passport is not one guaranteed by the Constitution? That is a question that calls for determination in this appeal.

If the view is correct - and I subscribe to it - that possession of a passport makes exit out of Nigeria possible, it follows that without it a citizen of Nigeria cannot enjoy the right of egress from Nigeria given him by section 38 (1) of the Constitution. In my respectful view, therefore, to hold or possess a passport is ancillary to the right of egress from Nigeria given in section 38 (1). It is, as rightly held by the court below, per Ayoola, JCA (as he then was), concomitant to the right of egress from Nigeria. It is a concomitant right without which the right of egress from Nigeria becomes hollow or empty."

The conclusion on this point, therefore, is that once the constitution grants the right of assembly, it is presumed that there must be a leadership for that assembly and once the constitution grants a right of expression, there must be a means for that expression.

Do workers and the NLC have a right of protest?

Although I have no hesitation in answering this question in the affirmative, it is better to first discus the statutory provisions relating to the right to protest and then try to locate the reasoning of the judge within these provisions.

Who is a worker?

By virtue of section 52 of the Trade Unions Act:

"worker" means any employee, that is to say any member of the public service of the Federation or of a State or any individual (other than a member of any such public service) who has entered into or works under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, expressed or implied, oral or in writing, and whether it is a contract personally to execute any work or labour or a contract of apprenticeship."

These provisions are replicated in section 91 (1) of the Labour Act. By a combination of sections 29 (1) and 32 (1) of the Trade Unions Act earlier discussed, workers have the right to form trade unions and federations of trade unions. In addition, section 40 of the Constitution of the Federal Republic of Nigeria, 1999 provides that: "every person shall be entitled to assemble freely and to associate with other persons, and in particular, he may belong to any political party, trade union or any other association for the protection of his interests."

These provisions are clear and unambiguous. A worker is not expected to assemble with others to protect only his pay package but rather his interests. The framers of the constitution deliberately pluralised the word 'interest' to emphasise the point that the reason for joining a trade union cannot be limited to a single interest. It may well be that those INTERESTS include negotiation of salaries, contracts of employment, etc but it cannot be limited to bread and butter issues alone. The Longman's Dictionary of Contemporary English defines 'interest' to mean 'the things that bring advantages to someone'. Clealy therefore, the interests of a worker must necessarily include (but not limited to) his political interests, his economic interests, his financial interests, the physical conditions of work and indeed his national interests.

By virtue of section 39 (1) of the 1999 Constitution: "every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference."

In other words, workers can hold opinions on the political destiny of Nigeria, they are entitled to hold opinions on the state of refineries in Nigeria, on the state of corruption in the leadership cadre in Nigeria and indeed the declining political fortunes of Nigeria. But this is not all. Section 39 of the Constitution states further that workers can express these opinions through any means (protests, strikes, lock-outs, etc) without interference. To reduce workers to robots that can only discuss matters relating to their contracts of employment alone is most unkind of any judicial pronouncement.

His Lordship stated that she had searched through the Trade Unions Act and the Trade Disputes Act. I believe with utmost respect that the search did not cover Article 15 of the African Charter on Human and Peoples' Rights, where it is clearly stated that "every individual shall have the right to work under equitable and satisfactory conditions" and Article 24 of the same Charter, which states that "all peoples shall have the right to a general satisfactory environment favourable to their development." His Lordship would have discovered in addition that under section 1 (2) of the same Trade Unions Act, "the fact a combination of workers or employers has purposes or powers other than the purpose of regulating the terms and conditions of employment of workers shall not prevent it from being registered ..." and that "... a trade union may apply its funds for any lawful purpose for the time being authorised by ITS RULES ...". What this simply means is that a trade union is not to exist for the sole purpose of negotiating the terms and conditions of employment of its members alone but must of necessity extend its activities to cover other areas of human development such as education, politics and indeed the economy (or fuel tax). Without any doubt whatsoever, the workers can protest over petroleum tax if the end result of the said tax will impose collective suffering on them.

Can the NLC call out workers on protest?

The question will only be answered by reproducing section 47 of the Trade Disputes Act which states as follows:

"strike" means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as means of compelling their employer or any person or body of persons employed, or to aid other workers in compelling their employer or any persons or body of persons employed, to accept or not to accept terms of employment and physical conditions of work."

"Lock-out" means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms of employment and physical conditions of work."

In her judgment, the judge stated that the NLC has no right to close the airport, close the markets or indeed call out workers on strike. With all due respect My Lord, nothing can be far from this. If members of the National Union of Air Transport Employees decide to embark upon a strike or protest and in consequence they refuse to report for duty as usual, it follows without more that the airports, the terminals, the signal points, etc will all be shut down. The same goes for members of the National Union of Road Transport Workers, the Traders Association and all other vital affiliates of the NLC. One may understand His Lordship to express the frustration of the plaintiff in the suit (the Federal Government) as to the paralytic effect of strikes and protests on the economy. That is a different matter altogether and such sympathy cannot now be extended to a blanket decision that the NLC has no right to call out its members to shut down the airports, to close the banks and indeed withdraw buses from the roads. That is a matter of strategy of making such protest effective and the effectiveness of a protest does not of its own render it illegal. If other segments of the society, such as students, lawyers, lecturers, businessmen and women and even the Lagos (not area) boys (over whom the NLC has no control) find reason to join any protest or strike declared by the NLC, that will also not make it illegal. On the contrary, such support will go a long way in confirming the popularity of the NLC struggle, for if the reasons behind any strike or protest were to be ignoble or selfish, certainly the other segments of the society will oppose it.

His Lordship also relied on section 34 (2) of the Trade Union Act decapitate the NLC. The section provides that: "the Central Labour Organisation shall not engage in collective bargaining on behalf of any trade union or federation of trade unions except it is requested to do so by that trade union or federation which is a party to the collective bargaining."

My humble understanding of this section is simply that of non-interference by the Central Labour Organisation in the internal affairs of trade unions. In other words, the NLC is not to dabble into the internal affairs of a trade union as it relates to collective bargaining unless it has been so invited by the trade union. Thus, this section has nothing to do with the right of workers to protest and so it cannot be the basis of any conclusion that the Central Labour Organisation cannot call out workers on protest. Second, the question of whether a trade union or a federation of trade unions has authorised the Central Labour Organisation to bargain on its behalf collectively is a matter of fact (evidence) and the onus is on the person (in this case the Federal Government) alleging absence of authorisation to establish it. By practice, the NLC has a Central Working Committee consisting of officials of its affiliate unions and I have read on many occasions that there are procedures to be followed by the NLC before it can call out its members on strike or indeed embark upon any collective bargaining on their behalf.

Thus, it cannot be the case that a body established by law will cease to function if the court has no access to its RULES of practice and procedure.

What puzzled most in this matter is the fact that the Federal Government as plaintiff in this matter did not seek any direct relief from the court on the legality or otherwise of the office of the NLC President. My little understanding of the law before now is that the court is not a Father Christmas that doles out gifts to all comers and as such, a court of law will always restrict itself to granting only the reliefs sought by the parties. I do not therefore understand how the office of the NLC President became an issue in the case, moreso that the Federal Government was merely challenging the Notice of Strike that was served on it by the NLC in compliance with sections 40 and 41 of the Trade Disputes Act.

Having regard to the crisis so far generated by the judgment of the court, it has become imperative to plead with our courts to be wary of the impact of their decisions on the rest of society. For the petroleum marketers, the judgment of the court is a licence to snuff out life from the masses of Nigerians, for the Federal Government, the judgment has helped to clip the wings of opposition to all obnoxious policies (and there are quite many of them with this particular administration). The judiciary in general has been the stabilising force of the Nigerian state, either under military bandits or under civilian dictatorship or even the interim government. So, it behoves us in the Bar and the Bench to ensure that we keep the flag flying.

bullet Adegboruwa is a human rights activist, acting Publicity Secretary of the United Action for Democracy (UAD) and the managing solicitor in the law firm of Adegboruwa & Co.`