Adams Oshiomhole & Anor. V. Federal Government of Nigeria & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

In a motion on notice dated and filed on 5th November, 2004, the applicants prayed for the following reliefs:-

“1. An order restraining the appellants/respondents by themselves, their officers, privies, associates and any person howsoever described from continuing their acts of contempt by disobeying the order of the court delivered in this suit on Tuesday, 21st September, 2004 which is now the subject of appeal before this Honourable court.

2. An order restraining the appellants/respondents by themselves, agents, privies or otherwise howsoever called from embarking on strike action on 16th November, 2004 or any other day thereafter until the determination of the appeal.
3. An order of court directing the appellants to give undertaking not to disobey the subsisting order of court which is the subject matter of appeal before this Honourable court pending the determination of the appeal pending in this suit.
4. An order of injunction restraining the 2nd appellant/respondent, his officers, privies, associates, servants, agent and any other person however described from summoning any meeting, holding any rally and or convocating any gathering or implementing or planning or preparing for any strike action in respect of the subject-matter of this appeal pending the hearing and determination of the appellants’ appeal.”

The grounds upon which the application was premised are given as follows:-

“1. Judgment was delivered in this suit on September 21, 2004 which inter alia restrained the appellant from embarking on strike action to protest issues outside their terms of employment.

2. Immediately after the judgment of the lower court and before filing motion for stay, the appellant gave notice of strike action in defiant of the judgment of the lower court.
3. The appellant filed notice of appeal on 27/9/2004 and a motion for stay of execution dated the same day.
4. The respondent/applicant filed a motion on notice on 6th October, 2004 seeking an order that the defendants give undertaking not to go on strike or flout the subsisting order of the lower court pending the determination of the application.
5. On 13th October, 2004 the lower court refused to entertain both the appellants’ motion for stay of the appellants’ motion to restrain the applicants from going on with the proposed strike.
6. The appellant went on strike in defiant of the subsisting judgment of the lower court.
7. The appellants have given yet another notice to embark on strike on November 16, 2004.
8. The appellants especially the 2nd appellant have been holding meetings and rallies, inciting people that unless the Federal Government accedes to their demand they will make the country ungovernable.
9. Unless this court grants this application the appellant will proceed on the proposed strike.”

Chief Bayo Ojo, SAN, for the respondents/appellants, appeared along with him, other counsel. He informed the court that Mr. Femi Falana will handle the motion on notice on behalf of the appellants/respondents.

In moving the motion on notice, learned Senior counsel for the respondents/applicants Mr. Okunloye, stated that the application was dated and filed on 5/11/04. It was brought pursuant to section 18 of the Court of Appeal Act and Order 1 rules (19) and (21) of the Court of Appeal Rules 2002. The applicants prayed for four reliefs as set out above. The application was supported by a 28 paragraphs affidavit sworn to by Remi Awe who is a legal practitioner in applicants’ counsel’s chambers. On 8/11/04, a further-affidavit of 7 paragraphs was filed attaching to it exhibits A-C. On 15/11/04, a further and better affidavit of 6 paragraphs was filed exhibiting the ruling of the lower court striking out the motion for stay of execution of its judgment of 13/10/04. Learned SAN placed reliance on all the paragraphs of the affidavits but particularly paragraph 8 of the affidavit in support which the learned SAN read out in open court.

In further submission, learned SAN stated that in contravention of the orders made by the lower court averred to in paragraph 8 of the affidavit in support, the appellants/respondents declared and embarked on strike action from 11th to 14th of October, 2004, even while they filed an application for stay which was not heard by the lower court but struck out. The appellants/respondents refused to file any application for stay of execution of that order before this court.

The appellants/respondents, it was submitted further, gave another notice to embark on strike on 16/11/04 on same subject-matter which the lower court ordered that they should not go on strike. Reference was made to paragraph 6(3) and (4) of the further-affidavit and also to exhibits D and E. Learned SAN stated further that the appellants made public declaration that no court can stop them from going on strike contrary to the subsisting order of the lower court. It was argued that the conduct of the appellants/respondents constituted a deliberate disobedience of the judgment of the lower court and is a reprehensible contempt of that court’s order. All parties, according to the learned SAN, have an unqualified duty not to disobey a subsisting order of court to abide by it to the letter. He referred to the case of Fame Publications Ltd. v. Encomium Ventures Ltd. (2000) 8 NWLR (Pt. 667) 105 at 111; Rossek v. A. C.B.C (1993) 8 NWLR (Pt. 312) 382 at 434-435; Babatunde v. Olatunji (2000) 2 NWLR (Pt. 646) at 557 at 568 and 571. Learned SAN urged this court to hold that the appellants/respondents were not entitled to continue to disobey the judgment in exhibit A. They are not entitled to embark on any strike action on petroleum products until such a judgment is overturned.

In dealing with the contemptuous act, learned SAN, submitted, the court can make any of the following orders:-

“1. the party in contempt can be committed to prison;

2. order respondent to give security as to good behaviour not to flout the court’s order;
3. the court is entitled to make a further order of injunction to restrain the act of contempt or from continuing the act of contempt.”

Learned SAN cited and relied on the white book (2002) volume 1 page 1497 paragraphs SC 52.1.5. Learned SAN reminded this court that on 11/11/04, it made an order against the respondents not to embark on strike. He urged this court to extend the order. In his response, Mr. Falana, submitted as follows:-

That he filed a counter-affidavit and a preliminary objection just this morning. That in determining the question of injunction the court determines the right of the applicants sought to be protected. No such right has been disclosed in the bundle of documents filed by the applicants. The purport of the application is to restrain the respondents from convoking meetings or any gathering and that is not right. It is the fundamentals of the respondents to assemble freely under section 40 of the Constitution in so far as they do so within the ambit of the law. Staging strike is permissible under the Trade Dispute Act, particularly section 42 of the Trade Disputes Act, Cap. 432, LFN, 1990. Section 34 of the Trade Unions Act, Cap. 437 LFN, 1990, permits the Nigerian Labour Congress to collect and disseminate information to its members and advise them on economic and social matters including the process of petroleum products. Section 38(1) of the Constitution has empowered the NLC to embark on strike action. Strike, learned counsel argued further, is part of freedom of expression once it is peaceful. Reliance was placed on the case of INEC v. Musa (2003) 3 NWLR (Pt. 806) 72.

Learned counsel stated that the prayers sought by the applicants is an invitation to this court to violate the constitutionally guaranteed right of the respondent. He cited the case of Ransome-Kuti v. A.-G., of the Federation (1985) 2 NWLR (Pt. 6) 211 at 229-230. It is only in a state of emergency that fundamental human right can be suspended by virtue of section 45 of the Constitution. Learned counsel cited page 254 of Afe Babalola’s book on Injunctions and Enforcement of Orders which spelt out that the affidavit supporting an application for injunction pending appeal must state the legal rights to be protected and the balance of convenience.