A.G. Oyo State v Nigeria Labour Congress, Oyo State.

A.G. Oyo State v Nigeria Labour Congress, Oyo State.


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IN THE COURT OF APPEAL

(IBADAN JUDICIAL DIVISION)

ON MONDAY, THE 9TH DAY OF DECEMBER, 2002


SUIT NO: CA/I/M.110/02

CITATION: (2002) 12 LLER 1

Before Their Lordships

MORONKEJI OMOTAYO ONALAJA J.C.A.

FRANCIS FEDODE TABAI J.C.A.

OLUFUNLOLA OYELOLA ADEKEYE J.C.A.

BETWEEN

ATTORNEY-GENERAL OF OYO STATE

(APPELLANTS)

AND

1. NIGERIA LABOUR CONGRESS, OYO STATE CHAPTER

2. IBRAHIM BOLOMOPE

3. BASHIRU LAWAL

4. REMI ADEDEJI

5. ALHAJI SABITU DITO

(For themselves and on behalf of other members of Nigeria Labour Congress (NLC) Oyo State Chapter and Civil Servants of Oyo State)

(RESPONDENTS)

RATIO/ PROUNOUNCEMENTS

A. CONSTITUTIONAL SUPREMACY

1. Supremacy of the Constitution and its relationship with other laws

Although a Decree was before the coming into effect of the present Constitution, ranked higher in status than even the Constitution, it is now an Act of the National Assembly lower in status than the Constitution. The result is that any existing law, be it an Act or a Decree is less in status than the Constitution and in the event of any inconsistency the Act or Decree will, to the extent of its inconsistency, be null and void. PER TABAI J.C. A. Read in context

2. Constitutional Supremacy—Effect of inconsistency between the Constitution and Trade Disputes Act

Since the Trade Dispute Act, Cap. 432 (as amended) conflicts with section 272 of the 1999 Constitution – by section 1(3) of the same Constitution – the Trade Dispute Act vesting exclusive jurisdiction on the National Industrial Court in trade dispute matters becomes null and void. PER ADEKEYEJ.C.A. Read in context

B. COURT

3. Powers of the National Industrial Court—Limitations on the powers of the National Industrial Court

By way of conclusion the reliefs claimed by the appellant as plaintiff in the High Court are not reliefs available at the Industrial Arbitration Court or any panel established under the Trade Disputes Act, 1990 (as amended) – being declaratory orders and injunctive reliefs. PER ADEKEYE, J.C.A. Read in context

4. The Relationship and Status between the National Industrial Court and the High Court on Trade Dispute Matters

By the combined effect of sections 1(1)(3), 6(6)(b), 251, 272 and 315 of the 1999 Constitution the High Court of a State share concurrent jurisdiction in Trade Dispute matters with National Industrial Court or other courts established under the Trade Disputes Act, 1990 (as amended). PER ADEKEYE, J.C.A. Read in context

C. INTERPRETATION OF STATUTES

5. Approach to Constitutional Interpretation—Liberal Construction

The approach of the courts to the Constitution has been one of liberalism, a variation on the theme of the general maxim – ut res magis vale at quam pereat – (meaning it is better for a thing to have effect than to be made void). Thus where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.  PER ADEKEYE, J.C.A. Read in context

6. Approach to Constitutional Interpretation—the Purposive Approach

For the court to carry out its functions under the Constitution effectively and satisfactorily, it must be purposive in its construction of the Constitution. P.D.P v. I.N.E.C. (1999) 11 NWLR (Pt. 626) 200, Rabiu v. The State (1981) 2 NCLR 293, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622, Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458, Chime v. Ude (1996) 7 NWLR (Pt. 461) 379. PER ADEKEYE, J.C.A. Read in context

7. Approach to Constitutional Interpretation—the need for Community Reading of Constitutional Provisions

In interpreting the provisions of a statute and the Constitution, such provisions should not be read in isolation of the other parts of the statute or Constitution. In other words the statute or Constitution should be read as a whole in order to determine the intendment of the makers of the statute or Constitution. PER ADEKEYE, J.C.A. Read in context

8. Interpretation of Statutes—the Literary Interpretation

The literal rule of construction of a statute advocates that if the words of a statute are clear and unambiguous, effect should be given to them even though they lead to manifest absurdity. A court has no power to fill any gap disclosed in a legislation for to do so would be to usurp the function of the legislature. P.D.P v. I.N.E.C. (1999) 11 NWLR (Pt. 626) 200. PER ADEKEYE, J.C.A. Read in context

9. Interpretation of Statutes—the Golden Rule Interpretation

The golden rule permits modification of the literal sense of the words of the statute where adherence to the literal sense would lead to absurdity. It permits the grammatical and ordinary sense of the words used in a statute to be modified so as to avoid absurdity and inconsistency which adherence to the grammatical and ordinary sense of the words would lead. Thus, a court is not to ascribe meanings to the clear plain unambiguous provisions of a statute in order to make such provisions conform with the court’s own view or of what they ought to be in accordance with the tenets of sound social policy. A.-G., Federation v. Sode (1990) 1 NWLR (Pt. 128) 500, Adebowale v. Mil. Gov., Ogun State (1995) 4 NWLR (Pt. 392) 733, Ifezue v. Mbadugha (1984) 1 SCNLR 427, A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187. PER ADEKEYE, J.C.A. Read in context

10. Interpretation of Statutes—the Purport of Section 2 and 20 of the Trade Disputes Act

The combined effect of section 2 of the Trade Disputes (Amendment) Decree No. 47 of 1992, and section 20 of Trade Disputes Act, Cap. 432, Laws of the Federation, 1990 ousted the jurisdiction of the regular courts in entertaining Trade Dispute matters and vest exclusive jurisdiction in the National Industrial Court which can be interpreted to mean that the High Court of a State cannot exercise jurisdiction in Trade Dispute matters as provided for in section 272 of the 1999 Constitution. PER ADEKEYE, J.C.A. Read in context

11. Interpretation of Statutes—the Meaning of section 272 of the 1999 Constitution

“272(1) Subject to the provision of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. 272(2): The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

The interpretation of the foregoing is that except for matters falling within section 251 of the 1999 Constitution, the High Court of the State has unlimited jurisdiction in all other matters. The phrase “subject to the provision of this Constitution” used in section 272(1) of the Constitution means that other provisions of the Constitution shall prevail over the provisions in section 272 should there be any conflict between section 272 and any other provisions of the 1999 Constitution. PER ADEKEYE, J.C.A. Read in context

D. JURISDICTION

12. Meaning of Jurisdiction

The word jurisdiction means the authority which a court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision. Madukolu v.Nkemdilim (1962) 2 SCNLR 341, Ndaeyo v. Ogunnaya (1977) 1 SC 11, National Bank of Nigeria Ltd. v. Shoyoye (1977) 5 SC 181, A-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187. PER ADEKEYE, J.C.A. Read in context

13. Implication of Absence of Jurisdiction

Jurisdiction is fundamental to adjudication as it is the special cord of a court of law, any decision taken by a court without jurisdiction is incompetent, and is subject to being nullified on appeal. PER ADEKEYE, J.C.A. Read in context

14. When Issue of Jurisdiction can be raised

As a matter of practice, a preliminary objection as to jurisdiction of the court with respect to a particular matter can be taken at any time, but where the contention is that the jurisdiction of court is ousted, being one of law should be taken promptly and if established would be conclusive. PER ADEKEYE, J.C.A. Read in context

15. The Inherent Jurisdiction of a Court to determine if it has Jurisdiction

A court may by statute lack jurisdiction to deal with a particular matter but it has jurisdiction to decide whether or not it has jurisdiction to deal with such matter. Guardian Newspapers Ltd. v. A-G., Federation (1995) 5 NWLR (Pt. 398) 703, Barclays Bank Ltd. v. Central Bank of Nigeria (1976) All NLR (Pt. 1) 409. PER ADEKEYE, J.C.A. Read in context

16. Relevant Factors in Determination of Jurisdiction

Two factors to examine when considering whether or not a court has jurisdiction are –

(a) The claim of the plaintiff and not the defence – as it is the plaintiff who in the determination of his rights invokes the judicial powers of the Constitution vested in the courts. Adeyemi v. Opeyori (1976) 9-10 SC 3, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29, Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530.

(b) The applicable law is that which was in force at the time when the cause of action arose and not that which was in force when the issue of jurisdiction was raised. Uwaifo v. A-G., Bendel State (1983) 4 NCLR 1. PER ADEKEYE, J.C.A. Read in context

17. Limitations to the Jurisdiction of the National Industrial Court aand Interpretation of Section 20 Trade Disputes Act.

Section 20 of the Trade Disputes Act conferring jurisdiction on the National Industrial Court reading the section properly, the jurisdiction of the court does not include making declarations and injunctive orders over which only the State High Court has jurisdiction. PER ADEKEYE, J.C.A. Read in context

E. TRADE DISPUTES

18. Meaning of Trade Disputes; Nature and Ingredients of a Trade Dispute

Section 47(1) of the interpretation section of Cap. 432 defines trade dispute as follows – “Any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person.” The case of National Union of Road Transport Workers v. Nweke Ogbodo & Ors. (1998) 2 NWLR (Pt. 537) 189 at 191 held that- “For a dispute to be declared, a trade dispute within the meaning of section 47 of the Trade Dispute Act, Cap. 432, Laws of the Federation of Nigeria, 1990, the following ingredients must be present –

1) There must be a dispute,

2) The dispute must involve a trade,

3) The dispute must be between (a) Employers and workers, (b) Workers and workers

4) The dispute must be connected with – (1) The employment or non-employment, (2) The terms of employment, (3) Physical condition of work or any person.” PER ADEKEYE, J.C.A. Read in context

F. WORDS AND PHRASES

19. Words and Phrases—Meaning of the phrase, “subject to the provision of this constitution”—Interpretation of section 272(1) of the 1999 Constitution

The phrase “subject to the provision of this Constitution” used in section 272(1) of the Constitution means that other provisions of the Constitution shall prevail over the provisions in section 272 should there be any conflict between section 272 and any other provisions of the 1999 Constitution. PER ADEKEYE, J.C.A. Read in context

 


ADEKEYE, J.C.A. (Delivering the Leading Judgment):


This is an appeal against the ruling of the High Court of Oyo State, Ibadan Judicial Division delivered on the 10th of May, 2002. The facts of the case before the lower court were that the plaintiff – the Attorney General of Oyo State claimed against the defendants Nigerian Labour Congress Oyo State Chapter, Ibrahim Bolomope, Bashiru Lawal, Remi Adedeji and Alhaji Sabitu Dito for themselves and on behalf of other members of the Nigerian Labour Congress, Oyo State Chapter and the civil servants in Oyo State as follows –

1) Declaration that no trade dispute known to law has been declared by the defendants

2) Declaration that prescriptions in parts I and II of Trade Disputes Act, Laws of the Federation of Nigeria, 1990 (as amended) are conditions precedent to the declaration of a trade dispute by the defendants.

3) Declaration that the defendants cannot lawfully call out civil servants in Oyo State to embark on any industrial action via a strike action or at all without complying with and/or exhausting the procedure prescribed by the Trade Disputes Act, Laws of the Federation of Nigeria, 1990 (as amended).

4) Declaration that the decision of the defendants to embark on industrial action to wit a strike action in Oyo State and its directive to civil servants in Oyo State to commence a strike action are illegal, null and void having been made contrary to the intendment and in breach of the regulations relating to trade dispute.

5) Declaration that the defendants and all its members are not entitled to be paid for the period 22nd day of April, 2002 from which they embark or may embark on an industrial strike action to the period they may be away from work.

6) Injunction restraining the defendants jointly and severally by themselves, their servants, agents and/or privies or howsoever called from calling on civil servants in Oyo State to embark on industrial strike action without complying with the regulations pertaining to trade dispute.

7) An order of mandatory injunction directed at the defendants jointly and severally by themselves, their agents/privies/assigns howsoever to return to work immediately.

Simultaneously with the filing of the writ of summons, the plaintiff filed a motion ex-parte and a motion on notice asking for injunctive remedies against the defendants to maintain the status quo pending the determination of the case before the court. The lower court granted the ex-parte orders on the 22nd of April, 2002 and adjourned the hearing of the motion on notice to another date for hearing.

The defendants on the 24th of April, 2002 filed a notice of preliminary objection on the ground that the Oyo State High Court has no jurisdiction to entertain the case on the ground that only the court established pursuant to Trade Dispute Act, Cap. 432, has exclusive jurisdiction to entertain the suit between the plaintiff and defendant – which is the National Industrial Court. The plaintiff contended before the trial court that the Trade Dispute (Amendment) Decree No. 47 of 1992 is an existing law by virtue of the provisions of section 315 of the 1999 Constitution, and that an existing law cannot operate to override the Constitution. The learned trial Judge in his reasoning and conclusion agreed that the Trade Dispute Act, 1990 is an existing law under the Constitution – but there is nothing in the Act which can be said to be inconsistent with the provisions of the 1999 Constitution – particularly section 272. The learned trial Judge struck out the case of the plaintiff on the ground that he lacked jurisdiction to entertain the case. The plaintiff being dissatisfied with the decision of the learned trial Judge appealed against it to this court. The plaintiff henceforth to be referred to as the appellant filed a notice of appeal with four grounds of appeal on the 31st day of March, 2002. This court granted the appellant leave to prosecute his appeal on the bundle of documents which he had compiled.

Parties filed and exchanged briefs. From the four grounds of appeal filed – the appellant distilled two issues for determination as follows:

1) Whether the claims on the writ of summons are trade disputes matters? and

2) Whether an existing law under section 315 of the 1999 Constitution can be used to oust the jurisdiction of a State High Court under section 272 of the Constitution and if not whether section 1A(i) of the Trade Dispute Act is not void for being in conflict with the 1999 Constitution?

The defendants now respondents in this appeal formulated three issues which read –

1) Whether there is dispute between the appellant representing Oyo State Government?

2) Whether the dispute (if there is any) is a trade dispute?

3) Whether the High Court of Oyo State has jurisdiction to entertain the dispute?

Since the three issues formulated by the respondents virtually cover the same filed as the two issues of the appellant – I shall adopt the two issues settled by the appellants for the purpose of this appeal.

First issue asks the question whether this dispute between the appellant and respondents is a trade dispute

The appellant’s answer is that the issue is not a trade dispute. Declaratory relief and injunctions being sought before the lower court are not trade disputes or matters which an industrial arbitration panel or any of the panels or tribunal established under the Trade Dispute Act can entertain. An industrial arbitration panel cannot grant declaratory reliefs. Furthermore, until the respondents complied with all the procedure or conditions spelt out under the Trade Dispute Act, 1990 (as amended) and until there is reference to the industrial panel or other bodies established by the Act, no trade dispute can be said to have arisen for consideration of any panel, or tribunal under the Trade Dispute Act of 1990. The appellant cited the case of Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284.

The respondents however submitted that there was a dispute between the appellant and the respondents – this is borne out by the writ of summons of the appellant which stated the disputes in clear terms. Section 47 of Trade Disputes Act, Cap. 432, Laws of the Federation, 1990 defines trade dispute as follows-

“Any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person.”

The writ of summons referred to strike and strike action which only occur as a result of trade dispute. The appellant in paragraph 7 of the affidavit in support of his motion ex-parte (page 8 of the record of proceedings) compiled by the appellant said that –

“All the civil servants in Oyo State are employees of the Government of Oyo State which Government is responsible for their salaries, wages and other entitlements.” The appellant is the employer of the respondents who are representing the workers of Oyo State. It is the plaintiff’s case as depicted in the writ of summons – in this case the appellant’s case that determines the jurisdiction of the court. The respondents referred to the cases of New Nigeria Bank Plc. & Anor. v. A.M. Osoh & 4 Ors. (2001) 13 NWLR (Pt. 729) 232 at 260; National Union of Road Transport Workers v. Ogbodo & 3 Ors. (1998) 2 NWLR (Pt. 537) 189; Magaji v. Matari (2000) 5 SC 46 at pg. 57, 20-29, (2000) 8 NWLR (Pt. 670) 722.

Whether an existing law under section 315 of the 1999 Constitution can be used to oust the jurisdiction of a State High Court under section 272 of the Constitution and if not, whether section 1A(i) of the Trade Dispute Act is not void for being in conflict with the 1999 Constitution.

The appellant argued that if it is assumed that the claims are trade disputes – the organic laws during the military regime and democratic dispensation should be defined. A High Court is a superior court of record – while the limits and extent of their jurisdiction are imposed by statute, charter or commission under which they are created vide Shodeinde v. Registered Trustees of Ahmaddiyya Movement in Islam (1980) 1-2 SC 163 at 229. Under the military regime – the Decree had the force of law and was superior to all other laws including the unsuspended part of the Constitution – vide Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139. Where a Decree ousts the jurisdiction of the court same cannot be challenged. Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688. This was the position when the Trade Dispute (Amendment) Decree No. 47 of 1992 was enacted into law. Section 2 of Decree No. 47 of 1992 provides –

“1A(1) Subject to the provisions of sub-section 3 of section 20 of this Act no person shall commence an action, the subject-matter of a trade dispute or any inter or intra union dispute in a court of law and accordingly any action which prior to the commencement of this section is pending in any court shall abate and be null and void.”

The foregoing ousts the jurisdiction of courts of law in trade dispute matters. During the period when Decrees were organic laws the courts declined jurisdiction of trade dispute matters. Udoh v. O.H.M.B. (1993) 7 NWLR (Pt. 304) 139 at 148; N.U.R.T.W v. Ogbodo (1998) 2 NWLR (Pt. 537) 189. Since May, 1999 – the Constitution has become the organic law of the land – and it takes precedence over and above all other Laws, Decrees. The Constitution is now supreme and no other law inconsistent with it can survive vide sections 1(1), 1(3) of the 1999 Constitution. A.-G., Abia State v. A.G., Federation (2002) 6 NWLR (Pt. 763) 264.

The plaintiff’s case was filed on the 22nd of April, 2002 – which means that the applicable law is the 1999 Constitution Jethwani v. Nigeria Wire Ind. Plc. (1999) 5 NWLR (Pt. 602) 326. The appellant referred to section 272 of the 1999 Constitution which provides for the unlimited jurisdiction of the State High Court in civil and criminal matters subject only to the provision of section 251 of the 1999 Constitution. Section 315(1) of the 1999 Constitution makes provision for existing laws. Section 315(3) vested courts with powers to declare as void any existing law that is inconsistent with the Constitution. The provisions of section (1)(A)(1) and section 20 of the Trade Dispute Act, Cap. 432, 1990 oust the jurisdiction of the regular courts in entertaining trade disputes – and vests exclusive jurisdiction in the National Industrial Court. Section 1(A)(1) and section 20 of the Trade Dispute Act, Cap. 432, 1999 which oust the jurisdiction of the regular courts in entertaining trade dispute matters curtails the jurisdiction of the High Court of the State. This curtailment of jurisdiction forms the conflict between the Trade Dispute Act, Cap. 432 and section 272 of the 1999 Constitution. Section 251 of the 1999 Constitution is the only lawful, legal and constitutional curtailment on the jurisdiction of the State High Court.

Since sections 1(A)(1) and 20 of the Trade Dispute Act, Cap. 432, Laws of the Federation of Nigeria, 1990 conflict with section 272 of the 1999 Constitution then by section l(b) of the same Constitution section 1(A)(1) and 20 become null and void. Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116.

The respondent maintained that the High Court has no jurisdiction to entertain the trade dispute between the appellant and the respondents – vide section (1) of the Trade Dispute Act, Cap. 432 which makes a distinction between Trade Dispute and apprehended Trade Dispute. The Trade Dispute Act was amended by the Trade Dispute (Amendment) Decree No. 47 of 1992 – and the latter divested the High Court of a State or Federal of jurisdiction on trade dispute matter. By section 19(1) of Trade Dispute Act, Cap. 432 (as amended) – jurisdiction on Trade Disputes had been restored to the National Industrial Court. By Decree No. 47 of 1992 the National Industrial Court has become a superior court of record, the status of National Industrial Court as a superior court of record and as a court that has jurisdiction to adjudicate on trade dispute to the exclusion of any other court and the law establishing it have been preserved by the combined provisions of sections 272, 315 and 316 of the Constitution of the Federal Republic of Nigeria, 1999.

The following facts cannot be controverted –

(a) That the National Industrial Court has an exclusive jurisdiction to adjudicate on trade disputes

(b) That the National Industrial Court is a superior court of record

(c) That Trade Dispute Act, Cap. 432 (as amended) which gave the National Industrial Court its power is an existing law

(d) That trade disputes is not in any way in conflict with any provisions of the Constitution of the Federal Republic of Nigeria, 1999 – because section 272(1) which gave the State High Court its jurisdiction subjected that jurisdiction to the provisions of section 251 and sections 315 and 316 of the 1999 Constitution.

The learned trial Judge confirmed that going by the provisions of section 315 of the 1999 Constitution, the Trade Dispute Act is an existing law when the 1999 Constitution came into being. The provisions of section 1(3) of the 1999 Constitution does not apply to the instant case as Cap. 432 is not inconsistent with any provision of 1999 Constitution. Before the amendment by Decree No. 47 of 1992 both the High Court and the National Industrial Court has jurisdiction on labour dispute – but the Decree has now given exclusive jurisdiction to the National Industrial Court on trade dispute. The 1992 amendment to Cap. 432 created a special group action not contemplated in the provision of section 272 of 1999 Constitution. The cases of Western Steel Works v. Iron and Steel Workers and Savannah Bank v. Pan Atlantic cited by the appellant were decided before the amendment by Decree No. 47 of 1992. The 1999 Constitution preserved the exclusive jurisdiction in trade dispute to National Industrial Court in sections 315 and 316 of the 1999 Constitution. The respondents cited the cases of Shodeinde v. Registered Trustees of Ahmaddiyya Movement in Islam (1980) 1-2 SC 163 at 229; New Nigeria Bank Plc. & Anor. v. A. M. Osoh & 4 Ors. (2001) 13 NWLR (Pt. 729) 232 at 260.

I have given a careful consideration to the arguments and submissions of both the appellant and the respondents in this case. As rightly observed by the learned counsel for the appellant – Mr. Fagbemi (SAN) – the core and crux of this appeal and issues for determination are the status of the Trade Dispute Act, Cap. 432, Laws of the Federation, 1990 (as amended) by Decree No. 47 of 1992, as an existing law under the 1999 Constitution, whether same can oust the jurisdiction of the High Court of a State in this matter in view of sections 272, 315 and 316 of the 1999 Constitution. This borders on the interpretation of these relevant sections so as to determine their purport and intendment. Before going any further it is appropriate to amplify on the issue of jurisdiction of the courts.

Jurisdiction is fundamental to adjudication as it is the special cord of a court of law, any decision taken by a court without jurisdiction is incompetent, and is subject to being nullified on appeal. The word jurisdiction means the authority which a court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision. Madukolu v.Nkemdilim (1962) 2 SCNLR 341, Ndaeyo v. Ogunnaya (1977) 1 SC 11, National Bank of Nigeria Ltd. v. Shoyoye (1977) 5 SC 181, A-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187. (back to top?)

The limits of the jurisdiction may be restricted by statute. As a matter of practice, a preliminary objection as to jurisdiction of the court with respect to a particular matter can be taken at any time, but where the contention is that the jurisdiction of court is ousted, being one of law should be taken promptly and if established would be conclusive. A court may by statute lack jurisdiction to deal with a particular matter but it has jurisdiction to decide whether or not it has jurisdiction to deal with such matter. Guardian Newspapers Ltd. v. A-G., Federation (1995) 5 NWLR (Pt. 398) 703, Barclays Bank Ltd. v. Central Bank of Nigeria (1976) All NLR (Pt. 1) 409. (back to top?)

Two factors to examine when considering whether or not a court has jurisdiction are –

(a) The claim of the plaintiff and not the defence – as it is the plaintiff who in the determination of his rights invokes the judicial powers of the Constitution vested in the courts. Adeyemi v. Opeyori (1976) 9-10 SC 3, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 Egbuonu v. B.R.T.C. (1997) 12 NWLR (Pt. 531) 29, Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530.

(b) The applicable law is that which was in force at the time when the cause of action arose and not that which was in force when the issue of jurisdiction was raised. Uwaifo v. A-G., Bendel State (1983) 4 NCLR 1. (back to top?)

What therefore was the claim of the plaintiff at the trial court – was it a trade dispute? The claim of the plaintiff/appellant in the endorsement on the writ of summons was for declarations and injunctive reliefs to prevent the defendants/respondents members of the Nigerian Labour Congress, Oyo State Chapter and the civil servants in Oyo

State Chapter and the civil servants in Oyo State from embarking on an industrial action – through a strike – without complying with the procedure laid down by the Trade Dispute Act, to declare any steps taken to commence a strike as illegal, to declare that those who carried out any strike action would not be entitled to their salaries for that period and mandatory injunction directing the plaintiffs to return to their work. The seven reliefs sought by the appellants depicted that there was a looming trade dispute which the appellant sought orders of court to forestall. Section 20 of the Trade Disputes Act conferring jurisdiction on the National Industrial Court reading the section properly, the jurisdiction of the court does not include making declarations and injunctive orders over which only the State High Court has jurisdiction. (back to top?) From this premise – and being that the claims before the lower court – were for declaratory and injunctive orders which were within the jurisdiction of High Court to grant the court ought not to have declined jurisdiction readily. Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284.

Section 47(1) of the interpretation section of Cap. 432 defines trade dispute as follows – “Any dispute between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person.” The case of National Union of Road Transport Workers v. Nweke Ogbodo & Ors. (1998) 2 NWLR (Pt. 537) 189 at 191 held that-

“For a dispute to be declared, a trade dispute within the meaning of section 47 of the Trade Dispute Act, Cap. 432, Laws of the Federation of Nigeria, 1990, the following ingredients must be present –

1) There must be a dispute ,

2) The dispute must involve a trade,

3) The dispute must be between (a) Employers and workers, (b) Workers and workers

4) The dispute must be connected with – (1) The employment or non-employment, (2) The terms of employment, (3) Physical condition of work or any person.” (back to top?)

The instant case has all the foregoing ingredients. New Nigeria Bank Plc. & Anor. v. A. M. Osoh & 4 Ors. (2001) 13 NWLR (Pt. 729) 232.

This takes me to whether the High Court of Oyo State had jurisdiction to entertain the case and at the time it did or whether the learned trial Judge was right to have declined jurisdiction as he did. The relevant provision of the law invoked was section 1(A)(1) of the Trade Dispute (Amendment) Decree No. 47 of 1992 – which ousted the jurisdiction of the High Court to entertain a trade dispute. The National Industrial Court that has exclusive jurisdiction to entertain a trade dispute section 2 of Decree No. 47 of 1992 reads”

1A(1) Subject to the provisions of sub-section 3 of section 20 of this Act, no person shall commence an action subject matter of a trade dispute or any inter or intra union dispute in a court of law and accordingly any action which, prior to the commencement of this section is pending in any court shall abate and be null and void.”

Section 19(1) of Cap. 432, Laws of the Federation, 1990 provides that-

“There shall be a National Industrial Court for Nigeria (in this part of this Act referred to as ‘the court’, which shall have jurisdiction and powers as conferred on it by this or any other Act, with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected there with.”

Section 20(1) of Cap. 432 reads –

“The court shall to the exclusion of any other court have jurisdiction as to make awards for the purpose of settling trade disputes and

(b) To determine questions as to the interpretation of (i) Any collective agreement (ii) Any award made by an Arbitration Tribunal or by the court under part 1 of this Act (iii) The terms of settlement of any trade dispute as recorded in any memorandum under section 7 of this Act.”

Section 20(4) reads –

“Nothing in sub-sections (1) and (2) of this section shall prejudice any jurisdiction of the Supreme Court of Nigeria under section 259 or 213(2)(c) of the Constitution of the Federal Republic of Nigeria or any jurisdiction of a High Court under section 242 of that Constitution.”

The National Industrial Court had the status of a superior court of record. Vide Atake v. A.-G., Federation (1982) NSCC 44, (1982) 2 SC 153 (1983) 3 NCLR 66.

It was the contention of the respondents that the National Industrial Court as a superior court of record and as a court that has jurisdiction to adjudicate on trade dispute to the exclusion of any other court and the law establishing it has been preserved by the combined provisions of sections 272, 315 and 316 of the Constitution of the Federal Republic, 1999. By way of further information on the Trade Dispute Act, Cap. 432 – the date of commencement is the 1st of January, 1976, and Part 1 of the Act provided a procedure for settling trade dispute before reference to National Industrial Court. It has to be explained further that that was under a military regime – when the organic laws of the land was to be found in military Decrees which had the force of law and was rated superior to all other laws in the land including the unsuspended part of the Constitution. Where a Decree ousts the jurisdiction of the courts same cannot be challenged. Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139, Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.

Decree No. 47 of 1992 ousted the jurisdiction of the courts of law in Trade Dispute matters. The ouster clauses were upheld in court decisions like Udoh v. O.H.M.B. (1993) 7 NWLR (Pt. 304) 139 at 148 and N.U.R.T.W. v. Ogbodo (1998) 2 NWLR (Pt. 537) 189 as observed by the appellant in his brief. In a democratic dispensation – the 1999 Constitution – which came into force on the 29th of May, 1999 has become the organic law of the land.

Section 1(1) of the 1999 Constitution provides that-

“This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”

Section 1(3) states that-

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and the other law shall to the extent of inconsistency be void.”

That reinforces that as from the 29th of May, 1999 – the Constitution is supreme and all other legislations in the land take their hierarchy from the provisions of the Constitution. The laws made by the National Assembly come next to the Constitution, followed by the laws made by the House of Assembly of a State. If any law from any source other than the Constitution itself contradicts any provisions of the Constitution, that law is to the extent of that contradiction or conflict void and of no effect.

The approach of the courts to the Constitution has been one of liberalism, a variation on the theme of the general maxim – ut res magis vale at quam pereat – (meaning it is better for a thing to have effect than to be made void). Thus where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.

For the court to carry out its functions under the Constitution effectively and satisfactorily, it must be purposive in its construction of the Constitution. P.D.P v. I.N.E.C. (1999) 11 NWLR (Pt. 626) 200, Rabiu v. The State (1981) 2 NCLR 293, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622, Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458, Chime v. Ude (1996) 7 NWLR (Pt. 461) 379. (back to top?) The literal rule of construction of a statute advocates that if the words of a statute are clear and unambiguous, effect should be given to them even though they lead to manifest absurdity. The golden rule permits modification of the literal sense of the words of the statute where adherence to the literal sense would lead to absurdity.

It permits the grammatical and ordinary sense of the words used in a statute to be modified so as to avoid absurdity and inconsistency which adherence to the grammatical and ordinary sense of the words would lead. Thus, a court is not to ascribe meanings to the clear plain unambiguous provisions of a statute in

order to make such provisions conform with the court’s own view or of what they ought to be in accordance with the tenets of sound social policy. A.-G., Federation v. Sode (1990) 1 NWLR (Pt. 128) 500, Adebowale v. Mil. Gov., Ogun State (1995) 4 NWLR (Pt. 392) 733, Ifezue v. Mbadugha (1984) 1 SCNLR 427, A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187.

In interpreting the provisions of a statute and the Constitution, such provisions should not be read in isolation of the other parts of the statute or Constitution. In other words the statute or Constitution should be read as a whole in order to determine the intendment of the makers of the statute or Constitution. A court has no power to fill any gap disclosed in a legislation for to do so would be to usurp the function of the legislature. P.D.P v. I.N.E.C. (1999) 11 NWLR (Pt. 626) 200. (back to top?)

As I have mentioned earlier on that to determine the issue of jurisdiction the applicable law is that which was in force at the time when the cause of action arose – the appellant’s case was filed on the 22nd of April, 2002 – which means that the applicable law is the 1999 Constitution. Uwaifo v. A.-G., Bendel State (1982) 4 NCLR 1, A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187, Jethwani v. Nigerian Wire Ind. Plc. (1999) 5 NWLR (Pt. 602)326.

Section 272 of the 1999 Constitution provides for the jurisdiction of the State High Court as follows –

“272(1) Subject to the provision of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

272(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.” (back to top?)

The interpretation of the foregoing is that except for matters falling within section 251 of the 1999 Constitution, the High Court of the State has unlimited jurisdiction in all other matters. The phrase “subject to the provision of this Constitution” used in section 272(1) of the Constitution means that other provisions of the Constitution shall prevail over the provisions in section 272 should there be any conflict between section 272 and any other provisions of the 1999 Constitution. (back to top?) It is apparent that trade dispute matter does not come within the ambit of section 251 of the 1999 Constitution. There is nothing in the Constitution which ousts the jurisdiction of the High Court of a State from entertaining a trade dispute matter.

Section 315(1) of the 1999 Constitution makes provision for existing laws. The relevant section provides that –

“Subject to the provisions of this Constitution an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution.”

By section 315(3) courts are vested with powers to declare as void any existing law that is inconsistent with the Constitution. This section provides that –

“Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of existing law on the ground of inconsistency with the provision of any other law.”

This court has to determine whether the Trade Dispute Act as an existing law negated the provisions of the Constitution and the provisions of the Constitution which nullifies a law which contradicts it. The combined effect of section 2 of the Trade Disputes (Amendment) Decree No. 47 of 1992, and section 20 of Trade Disputes Act, Cap. 432, Laws of the Federation, 1990 ousted the jurisdiction of the regular courts in entertaining Trade Dispute matters and vest exclusive jurisdiction in the National Industrial Court which can be interpreted to mean that the High Court of a State cannot exercise jurisdiction in Trade Dispute matters as provided for in section 272 of the 1999 Constitution. (back to top?)

The curtailment of jurisdiction of the High Court established the conflict between the Trade Dispute Act, Cap. 432 and section 272 of the 1999 Constitution – whereas section 251 of the 1999 Constitution is the only lawful and constitutional curtailment on the jurisdiction of a State High Court. The provision of section 1(3) is categorical on the fact that any law that conflicts with the Constitution is null and void.

Since the Trade Dispute Act, Cap. 432 (as amended) conflicts with section 272 of the 1999 Constitution – by section 1(3) of the same Constitution – the Trade Dispute Act vesting exclusive jurisdiction on the National Industrial Court in trade dispute matters becomes null and void. (back to top?)
Reference shall be made to the case of Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116. The issue that called for consideration of the Supreme Court in the case under reference was whether section 41 of the Land Use Act which was an existing law preserved by section 274 of 1979 Constitution can in any way curtail the unlimited jurisdiction vested in the court by section 236 of the Constitution of 1979 and if in any event that provision of the Land Use Act purported to oust the jurisdiction of the High Court, whether it would not have run contrary to section 236 of the 1979 Constitution – thereby making it void, by virtue of section 1(3) of the same Constitution. The full panel of the Supreme Court came to the conclusion that an existing law cannot curtail the jurisdiction vested in a court by the Constitution and that any existing law that purports to do that is void.

The provision of section 236(1) of the 1979 Constitution did not permit the unlimited jurisdiction vested in the High Court of a State to be limited other than as the Constitution itself may have provided. That was the reasoning and conclusion in the case of Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296, Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212, Kabo Air Limited v. Oladipo (1999) 10 NWLR (Pt. 623) 517, Akande v. Alagbe (2000) 15 NWLR (Pt. 690) 353.

Section 1(1) and 1(3) of the 1999 Constitution guarantee the supremacy of the 1999 Constitution, like section 1(1) of the 1979 Constitution. By section 1(3) of the 1979 Constitution, which is in pari materia with section 1(3) of the 1999 Constitution, any other law that ran contrary to the Constitution was to be declared null and void. For this reason sections 1(a)(1) of Decree No. 47 of 1992 amending section 20 of the Trade Dispute Act is null and void for conflicting with section 272 of the 1999 Constitution.

(b) The provisions of the Trade Disputes Act, 1990 (as amended) to the extent that it purports to divest the High Court of jurisdiction in Trade Dispute matters with the courts established under the Trade Disputes Act, 1990 is null an void – consequently the learned trial Judge was in error to have declined jurisdiction.

The appeal is allowed – the order made by the lower court in ruling delivered on the 10th day of May, 2002 is hereby set aside. If parties have not reconciled their differences – the matter is to be remitted back to the lower court for hearing before another Judge of the Ibadan Judicial Division. No order as to costs.

ONALAJA, J.C.A.: I was privileged and delighted to have perused in advance the leading judgment of my Lord Adekeye, J.C.A. which appeal raised the hydra headed question of the jurisdiction of the States High Court and that of the Federal High Court as set out under 1999 Constitution of the Federal Republic of Nigeria. This issue as to the tussle of jurisdiction between the two courts was judicially interpreted in the cases of Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 6 SC 158-350, (1983) 1 SCNLR 296, Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 SC and by this court on the interpretation of section 41 Land Use Act and section 272(1) 1999 Constitution of the Federal Republic of Nigeria in the case of Raimi Akande & 2 Ors. v. Busari Alagbe & Anor. (2000) 15 NWLR (Pt. 690) 353 which cases were considered and applied in the leading judgment in the interpretation of section 19(1) of Trade Dispute Act, Cap. 432, Laws of the Federation of Nigeria (as amended) by Decree 47 of 1992 which made National Industrial Court a superior court of record with exclusive jurisdiction to adjudicate on trade dispute and which was an existing law under section 315(1) of 1999 Constitution of the Federal Republic of Nigeria.

After a careful consideration of the Act, and 1999 Constitution the leading judgment rightly concluded that the grant of exclusive jurisdiction to National Industrial Court under Trade Dispute Act, 1992 (as amended) is unconstitutional being in conflict with sections 1 sub (1)(3), 6(6)(6), 251, 272 and 315 of the 1999 Constitution the combine effect of the said section is that the State High Court has concurrent jurisdiction in trade dispute matters with National Industrial Court or other courts established under the Trade Disputes Act, 1990 (as amended) in so doing, I called in aid the reasoning and interpretation of the Supreme Court in Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212 SC.

I am therefore in complete agreement with the leading judgment that the learned Judge of the High Court was in error to have declined jurisdiction to adjudicate on the matter. I also allow the appeal and abide with the consequential orders made in the leading judgment.

TABAI, J.C.A.: I was privileged to read, in draft, the leading judgment prepared by my learned brother Adekeye, J.C.A., and I agree with the reasoning and conclusion therein.

Section 272(1) of the 1999 Constitution of the Federal Republic of Nigeria says:

“Subject to the provisions of section 251 and other provisions of this Constitution the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, punishment or other liability in respect of an offence committed by any person.”

And section 272(2) states:

“The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

In the Constitution therefore, apart from section 251 there is no other provision which expressly limits the jurisdiction of the High Court of a State. The Trade Disputes Act (as amended) by the Trade Disputes (Amendment) Decree No. 47 of 1992 oust the jurisdiction of a State High Court in matters pertaining to trade disputes. It is however an existing law within the intendment of section 315(1) of the Constitution and shall only “have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution (Italics mine).

Although a Decree was before the coming into effect of the present Constitution, ranked higher in status than even the Constitution, it is now an Act of the National Assembly lower in status than the Constitution. The result is that any existing law, be it an Act or a Decree is less in status than the Constitution and in the event of any inconsistency the Act or Decree will, to the extent of its inconsistency, be null and void. (Back to top page?)

Having regard to the fact that the declaration and injunctive reliefs sought in this action do not fall within the matters reserved exclusively for the Federal High Court under section 251 of the Constitution the High Court of Oyo State has jurisdiction to entertain the suit. I share the view of my learned brother in the leading judgment that the Trade Disputes Act which purports to oust the jurisdiction of the State High Court is to the extent of the inconsistency void.

For the foregoing reasons and the fuller reasons in the leading judgment I hold that the High Court of Oyo State has jurisdiction to entertain the suit. The consequence is that the ruling of the court below is set aside. I abide by the consequential orders contained in the leading judgment.

Appeal allowed.

Appearances:

L. O. Fagbemi, SAN (with him, F. Babalola; H. Afolabi; L. Obisesan; L. Adedigba) For the Appellants

Respondents absent and unrepresented