National Union Of Electricity Employees & Anor. V Bureau Of Public Enterprises (2012)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, J.S.C. 

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 courts jurisdiction to entertain this case decided that it has no jurisdiction and struck out the plaintiffs 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.’

The plaintiff being dissatisfied with the decision has appealed the same to the Court of Appeal Lagos (court below) and so also the defendants have cross-appealed on the failure of the trial court to pronounce on the other 6 issues as raised in the notice of preliminary objection. The court below on its part having held that the trial court has the jurisdiction to entertain the claim in its entirety, allowed the appeal to that extent; it however has dismissed the cross-appeal as devoid of merit and has observed thus:

‘As all unconsidered issues are subsumed in the two considered and since an appeal is a re-hearing of the case by a superior court the exercise I have embarked upon is not out of place.’

The Defendants dissatisfied with the decision have now appealed to this court by a Notice of Appeal dated 4/6/2003 containing 5 grounds of appeal. The appellants and Respondents in this appeal before this court respectively are the defendants and the plaintiff at the trial court.

In the brief of argument in support of the appeal dated 24/05/2004 the appellants have raised three issues for determination as follows:

‘1. Whether by virtue of Sections 315(1) and 316(1) of the Constitution of the Federal Republic of Nigeria 1999, Decree No.47 of 1992 which ousted jurisdiction of a High Court from adjudicating a trade dispute and exclusively vested the jurisdiction thereof on the National Industrial Court was correctly struck down by the lower court, as being inconsistent with Section 272 of the Constitution of the Federal Republic of Nigeria, 1999 so that jurisdiction in trade disputes becomes concurrent as between National Industrial Court and Lagos State High Court for determination of the claims in this action. If the answers to issue No.1 is in the negative.

2. Whether a court that lacks jurisdiction to entertain a case of action founded upon a trade dispute can exercise jurisdiction to declare rights of parties in respect of a trade dispute.
3. Whether the six additional grounds of objection not pronounced upon in the trial court comprising lack of reasonable cause of action lack of locus standi academicity and abuse of court process were rightly dismissed by the court of appeal on the merit.’

The Respondent in its brief of argument filed on 2/6/2005 has also raised three issues as follows:

‘1. Whether the claim in this suit is a trade dispute and is conquerable exclusively in the National Industrial Court.

2. Whether Decree 47 of 1992 which vests exclusive jurisdiction in the National Industrial Court to hear and determine trade disputes (including inter and intra union disputes) is inconsistent with Section 272 of the 1999 Constitution?
3. Whether the Lower Court correctly dismissed the six additional grounds of objection, which were not pronounced by the trial court?’

Arguing issues 1 and 2 together, the appellants, firstly, on the backdrop of a crucial finding by the court below to the effect that the disagreement between the instant parties is not a trade dispute, have taken to a detailed expositions on the meaning and ramification of trade dispute. In that regard, they have adverted to the respondents pleadings in paragraphs 4 and 12 which they contend have conceded the appellants right to embark on the planned industrial action/strike to register their objection to the privatization of the National Electric Power Authority (NEPA) – their employer but as contended by the respondent without complying with due process that is, in accordance with the relevant pre-conditions dealing with trade disputes in regard to essential services as prescribed under the Trade Union Act and in the Trade Disputes Cap.432 and more specifically Trade Disputes (Essential Services) Act Cap.433. Having examined the provisions of Section 47 of the Trade Disputes Act with regard to the meaning of ‘strike’ they have posited that the right to strike or not and even the procedure of embarking on strike action are recognized as fundamental statutory terms of employment in the industry where there is a right to unionize and has therefore been made non-actionable as per Section 43 of the Trade Union Act. It is also contended that privatization of NEPA if carried through will convert the nature of their employment with the 1st respondent from public service as defined in Section 318 of the 1999 Constitution and as per Section 1(1) of the National Electric Power Authority Act Cap.256 Laws of the Federation of Nigeria 1990 to private employees of the purchasers of NEPA.. In the circumstances, they urge that privatization per se is a trade activity and that its disapproval thereof by the appellants constitutes a trade dispute under Section 47 of the Trade Disputes Act and without more that the disagreement amounts to an industrial dispute and so, is non-actionable under Section 43 of the Trade Union Act. And for all this, they submit that the instant industrial dispute has qualified in every respect as a trade dispute notwithstanding that they are not the employees of an employer i.e. the plaintiff they have disagreement with.

The second leg of the appellants attack of the decision of the court below stems from its holding that the instant claim being of declaratory in nature coupled with injunction it does not fall to be exercised within the ambit of judicial power of the exclusive jurisdiction of the National Industrial Court as per the Trade Disputes Acts. They submit that this has arisen from misconstruing the case of HANSON V. RADCLIFFE U.D.C. (1922) 2 Ch.507 per Sterndale M. R. – and the distinction between power and jurisdiction in that judicial power can only be exercised where there is jurisdiction. See: Section 6(6) of the 1999 Constitution and OWODUNMI V. REGISTERED TRUSTEES OF C.C.C. (2000) 10 NWLR (Pt.675) 315 at 345 – 346 paragraphs G-C. They also have submitted that the court below has not appreciated the limits of the principle underlining Hansons case in this regard. See: GURANTY TRAVEL COMPANY OF NEW YORK V. HANNAY & CO. (1915) 2 KB 536 at 573, EKUNO V. IFEKA (1960) SCNLR 320, EWARAMI V. ACB LTD. (1978) 4 SC.99 per Irikefe JSC at 108-109, NATIONAL ASSEMBLY V. PRESIDENT (2003) 9 NWLR (Pt.824) 104 at 133-4 paragraphs. E-B and in that wise they have further urged that given the exclusive jurisdiction conferred on the National Industrial Court on trade disputes, the said above finding of the court below as to the reliefs sought (be it injunction or declaration) will not be sufficient in this regard to confer jurisdiction on a court as the Lagos State High Court to determine the instant trade dispute between the instant parties and that,

‘The jurisdiction sought being ancillary did not confer jurisdiction on the court. The jurisdiction of the court cannot be determined by the effect of a successful claim.’ per Karibi Whyte JSC (in his dissenting opinion in Western Steel case (supra), I shall come to this question later.

It has debunked the preposition that the National Industrial Court cannot grant declarations and injunctions because the Trade Disputes Act has not provided for that power and thus has depreciated the contention that declaratory reliefs in regard to trade disputes fall outside the jurisdiction of the National Industrial Court but within the jurisdiction of the Lagos State High Court in this matter as per the case of WESTERN STEEEL WORKS LTD. V. IRON AND STEEL WORKERS UNION OF NIGERIA AND ANOR. (1987) 1 NWLR (Pt.49) at P.284 per Oputa JSC. The appellants submit that Oputas said opinion in the cited case on that point, is no longer good law as a lot of recent decisions have shown.

Moving on to next issue of whether the State High Court has the jurisdiction to entertain trade disputes by virtue of Section 272 of the 1999 Constitution as has been opined by the respondent the appellants refer to and rely on MADUKOLU V. NKENDILEMU (1962) 1 ANLR 587 to submit that the National Industrial Court has met all the conditions set out in the cited case as regards the necessary legal machinery competence wise to exercise jurisdiction over the instant action notwithstanding not being listed among the superior courts of record under Section 6(3) and (5) (i) of the 1999 Constitution which has listed exhaustively all the superior courts of record in Nigeria. And that the National Industrial Court, it is submitted has become one of such courts by virtue of Section 19 of the Trade Disputes Act as amended by Section 5 of the Trade Disputes (Amendment) Decree No.4 7 of 1992 – an existing law by virtue of Section 315 of the 1999 Constitution, that is, by a combined reading of the foresaid Trade Disputes Acts along with Section 316 of the said Constitution. And that clearly they have borne out that a State High Court does not have the requisite statutory machinery and competence to hear and determine trade disputes. In support of this proposition the appellants have referred to and relied on NDIC V. FMB (1997) 2 NWLR (Pt.490) although overruled but not on this point; IBWA V. PAVEX (2000) 7 NWLR (pt.663) 105 at 126 paragraphs E-G; M.D.YUSUF & ANOR. V. OLUSEGUN OBASANJO & ORS. SC.143/1993 (unreported judgment delivered on 7/5/2004 per Kutigi JSC (as he then was), and AMADI V. NNPC (2000) 10 NWLR (Pt.674) 76 at 110 paragraphs B-D.

The appellants have also re-examined this issue from the angle of the contrast between unlimited jurisdiction of a State High Court under Section 236 of the 1979 Constitution as re-enacted as Section 272 of 1999 Constitution without the word ‘unlimited’.

The appellants have posited that here again, the examination of both sections is sequel to the finding by the court below that,

‘From the combined effect of Section 251 and 272 of the Constitution the jurisdiction of a State High Court is not ousted such that it cannot entertain the present suit since the Constitution is supreme law of the land. See: ADISA V. DYINWOLE.”

The appellants have argued that this pronouncement suffers from a restrictive interpretation of the decree No.47 vis-à-vis Section 272 of the 1999 Constitution and that it has not considered other constitutional provisions confirming the consistency of Decree No.47 with the provisions of the 1999 Constitution based on the principle of liberal interpretation as espoused in the case of RAFIU RABIU V. KANO STATE (1980) 8-11 SC.130. They submit that before 1999 the case (1993) 7 NWLR (Pt.304) 189 decided by this court construing Section 1(A) (1) of the Trade Disputes (Amendment) Decree No.47 of 1992 has recognized that the said decree ousted the jurisdiction of State High Courts to entertain trade disputes and that a number of cases have followed Udos case (supra), such as NURTW V. OGBODO (1998) 2 NWLR (Pt.537) 189 at 201, DANET v. FADUGBA (1998) 13 NWLR (Pt.582) 482 at 497 paragraph H, SEATRUCKS (NIG.) LTD. V. ANIGBORO (2001) 2 NWLR (Pt.696) 159.

I must pause here to advert to paragraphs 4.38 and 4.39 of the appellants brief of argument and the necessary deductions to be drawn therefrom vis-à-vis the above cited cases as they have underscored to my mind the fundamental error pervading in the appellants reasoning in this matter. They state as follows:

‘4.38 Given the above history of lack jurisdiction of High Court on trade dispute before the Constitution of the Federal Republic of Nigeria, 1999 came into force, AND GIVEN THE EXPRESS saving provision of section 316(1) of the Constitution which we have reproduced above nothing has changed to reverse the exclusive jurisdiction of the NIC in adjudicating trade disputes.’

‘4.39 We respectfully submit, that the High Court of a state has not since the coming into force of the 1999 Constitution been conferred with any jurisdiction in respect of trade disputes inter/intra union disputes that it previously lacked. Only the Federal High Court has been conferred with additional jurisdiction by virtue of section 251 of the Constitution. Even so, the expansion did not include trade disputes. The lower court were therefore in error to have reasoned as they did, that the unlimited jurisdiction of the State High Court under the 1979 Constitution was restored by the 1999 Constitution mutatis mutandi.’

I shall come back to take the issues raised in these paragraphs later in the course of this judgment.

It is also argued that since the Federal High Court has been vested exclusively with the jurisdiction over matters covered by virtue of Section 251 of the 1999 Constitution, the unlimited jurisdiction of a State High Court as the instant one here has been curtailed mutatis mutandi and so a State High Court has not expressly been vested with unlimited jurisdiction and that the cases of WESTERN STEEL WORKS LTD. (supra), ADISA V. OYINWOLE (supra) and SAVANNAH BANK V. PAN ALLANTIC SHIPPING AND TRAVEL AGENCIES LTD. & ANOR. (1987) 1 NWLR (Pt.49) are no longer helpful in construing matters as the instant case.

They submit therefore that the jurisdiction of the State High Court is no longer unlimited and so, the jurisdiction of the State High Court, cannot be co-extensive with the jurisdiction of the National Industrial Court over trade disputes. And even then by the combined reading of the provisions of Section 4(3), 6(3) and (4) (a) and (b), 36(2), 240 and 251 (1) of the 1999 Constitution they have opined that Section 272(1) and 286(1) of 1999 Constitution vesting jurisdiction on the State High Court have to be read subject to Decree No.4 7 of 1992 on the backdrop of Section 315 of the 1999 Constitution as an existing law.

Finally, they have urged this court to affirm that part of the trial courts pronouncement that by virtue of Section 2 of the Trade Disputes (Amendment) Decree No.4 7 of 1992 a State High Court as the Lagos State High Court lacks the jurisdiction to entertain the instant claim as the jurisdiction in regard to trade disputes as here is vested exclusively on the National Industrial Court.

On the 6 issues not ruled upon by the trial the appellants have argued that their submissions before the court below on those 6 issues, that is to say, for lack of locus standi, lack of reasonable cause of action, improper joinder and abuse of court process have been erroneously dismissed by the court below. It is contended that the cumulative effect of having upheld those Issues would have been the dismissal of the instant suit instead of striking it out.

The court is urged to revisit those issues with a view to setting aside the decision of the court below. On the whole, this court is prayed to reverse the decision of the court below and in its stead allow the cross-appeal which has been dismissed in the court below thereof in toto.

The respondent submitting in its brief has conceded that central to this matter is whether the instant claim is a trade dispute. It is the contention of the respondent that the claim does not involve a trade dispute even though it is proposed to use strike action to forestall the statutory duty of the plaintiff in privatizing the National Electric Power Authority (NEPA).

Furthermore, based on the clear provision of Section 47 of the Trade Disputes Act Cap.432 Laws of the Federation of Nigeria it has posited that there is no employer/employee relationship to take the disagreement to the next level of employees/employer relationship so as to translate the instant disagreement to a trade dispute and even moreso that the nature of the dispute as disclosed in the plaintiffs pleadings is not connected either with the terms of employment or non-employment, or terms of employment and physical conditions of work of any person as would otherwise be the case with trade disputes. In the absence of the above factors that it is not a trade dispute cognizable under the Trade Union Act as to sustain the proposed strike action and has referred to the case of NWL LTD. V. WOODS (1979) 3 AER 614 per Lord Diplock to buttress the point. The Respondent has demonstrated that it is not every strike although a veritable tool of industrial action that qualifies as a trade dispute in the true sense of the Trade Disputes Acts. See: BRITISH BROADCASTING CORPORATION V. HEARN (1978) 1 AER II; (1977 1 WLR 1004). They have contended that the instant privatization exercise of NEPA and the Appellants objection of it without more cannot constitute a trade dispute.

On the proposition that the appellants are nonetheless protected against a claim as the instant one under Section 43(b) of Trade Union Act Cap.437 LFN 1990, the respondent has submitted that as the proposed industrial act i.e. strike action in this instance is not done pursuant to a trade dispute the protection otherwise provided under Section 43(b) cannot avail them – the defendants. See: CONWAY V. WADE (1909) AC 506 at 512 per Lord Loreburn L.C as particularly here where the acts of the defendants have in fact not been done, or in contemplation or furthermore of a trade dispute.

They have submitted that the submissions made in regard to the National Industrial Court being vested with the exclusive power to hear and determine trade disputes based on its special statutory set up go to no issue as this matter is not a trade dispute. And has underscored the issue that the court below has not found that the National Industrial Court has no jurisdiction to grant declarations but that the High Court has the power to grant declarations since its power is so to speak limitless in that regard.

On Issue2; the respondent has forthrightly submitted that the Trade Disputes (Amendment) Decree No.47 of 1992 is clearly in conflict with Section 272 of the 1999 Constitution. Having examined the provisions of Section 272(1) and 315(1), (2), (3) & (4) and 316(1) of the 1999 Constitution and Section 1A(1) and (2) of the Trade Disputes (Amendment) Decree No.4 7 of 1992 side by side and also having examined them against the backdrop of this matter, the point has been made that by virtue of Section 315 of the 1999 Constitution the Trade Disputes (Amendment) Decree No.47 is an existing law and deemed an Act of the National Assembly; besides, that by virtue of Section 316 of the 1999 Constitution the National Industrial Court is an existing court. The respondent has argued that the conferment on the National Industrial Court of the status of superior court of record with exclusive jurisdiction in trade dispute is in conflict with the jurisdiction of the State High Court vis-à-vis Section 272 of the 1999 Constitution. In taking this contention further, the respondent has made the point that any other law in conflict with the Constitution excepting by the express provision of the Constitution, the provisions of the Constitution shall prevail. See Section 1 (3) of the 1999 Constitution and the decision in ADISA V. OYINWOLE (supra). And so, that subjecting the State High Court to Section 251 which has conferred exclusively jurisdiction over certain matters therein contained on the Federal High Court has not altered the wide jurisdiction of the State High Court. Having referred to Section 6(4) (a) of the 1999 Constitution on the power of the National Assembly to create new courts, the respondent has conceded that the National Assembly has the power to create courts but of such subordinate jurisdiction albeit to the High Court, and that such exercise cannot affect or derogate from the jurisdiction of the High Court on the matters within its competence. It therefore, follows according to the respondent that although the Trade Disputes (Amendment) Decree 47 has created the National Industrial Court as a superior court of record it cannot be properly so designated without an amendment of Section 6(3) and (5) of the 1999 Constitution which has listed exhaustively all the superior courts of record known to the 1999 Constitution. See: ATTORNEY GENERAL OF OYO STATE V. NIGERIA LABOUR CONGRESS (2003) 8 NWLR (Pt.821) 1 at 3. The court is urged to resolve issue 2 in the respondents favour.

The respondent in further answer to the above has emphasized the point that the Constitution being the supreme law to that extent it cannot be made subject to any other law excepting by express provision of the constitution. See: ADISA V OYINWOLE (SUPRA), WESTERN STEEL WORKERS LTD V IRON AND STEEL WORKERS UNION OF NIGERIA AND ANOTHER (1987), NWLR (Pt 49) 284 PER COKER, JSC. The respondent submits that what has changed has been the removal of matters covered by section 251 of the 1999 constitution from the jurisdiction of the State High Court. Again, it is submitted that according to the status of superior Court of record the National Industrial Court without amending section 6(3) and (5) of the 1999 constitutional is to no effect. See ATTORNEY-GENERAL OF OYO STATA V NIGERIA LABOUR CONGRESS (2003) 8 NWLR (Pt 821) 1 at 3.

The Court is urged to approve the decision in the said cited case as well as affirm the decision of the Court below.

On issue 3: The Court below having exercised its powers under section 16 of the Court of Appeal Act has examined the 6 grounds of the preliminary objection raised but not considered by the High Court; it has formally dismissed them as lacking in merit.

On the question of Locus Standi: the respondent has contended that considering paragraphs 1, 3, 4, 5, 6, 7, 8, 12, 14 and 15 of its pleadings setting out its interest in the matter that paragraph 12, 17 and 18 of the pleadings particularly, have disclosed the proposed industrial action which would otherwise adversely affect its function and relies on OWODUNMI .V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt 675) at 355 and that it is not an industrial action the President or the Minister of Labour has the locus to intervene in the matter.

On Cause of Action: The respondent submits that a reasonable cause of action has been disclosed; it has arisen from the acts of the appellants proposed industrial action to frustrate the respondents privatization exercise.

On the breach of section 40 of the 1999 constitution i.e. the right to peaceful assembly and association; the respondent has contended that none of the three reliefs sought in the statement of claim infringes section 40 which otherwise is restricted by section 45 and which has validated them under the Trade Disputes (Essential Services) Act. The appellants having been engaged in essential services they cannot be heard to say that the Act is in breach of section 40.

On the improper joinder of the 2nd Appellant to this action, the respondent has submitted that the 2nd Appellant is a necessary and desirable party to the suit as he is likely to be affected by the decision. See: ONYENUCHEYA V MILITARY ADMINISTRATOR OF IMO STATE (1997) 1 NWLR (Pt 482) 429 at 456 and more so as the 3rd relief is directed against the 2nd appellant who is the General Secretary and the person issuing the strike threats.

On academic nature of action and abuse of process. This questions as raised under this head of the objection have been answered in the argument on issue 1. On section 251 (1) (n) of (p) of the constitution and the contention that the suit should have been commenced in the Federal High Court as decided in NEPA v EDEGBORO (2000) 18 NWLR (Pt 798)79. The respondent has submitted that the subject matter falls outside section 251 (1) (n) (p) of the 1999 constitution which deals with mines and minerals. 1t is the respondents submission that the subject matter has not fallen within the jurisdiction of the Federal High Court as the claim does not concern the management and control of the Federal Government; or any of its agencies for example NEPA.

SC. 62/2004