IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

 

DATE: June 9, 2022                                                        SUIT NO. NICN/ABJ/149/2021

 

BETWEEN                                

1.      NIGERIA LABOUR CONGRESS(N.L.C)

2.      COMRADE AYUBA WABBA                                                                CLAIMANTS

3.      COMRADE  JOE AJAERO

4.      COMRADE AYUBA SULAIMAN

                                     

AND

1.         THE GOVERNOR OF KADUNA STATE

2.         ATTORNEY GENERAL OF KADUNA STATE

3.         KADUNA STATE JUDICIAL COMMISSION OF INQUUIRY

INTO THE NLC WARNING STRIKE OF MAY 16 -19, 2021,

AND THE ACTIONS AND EVENTS ASSOCIATED WITH IT.

4.         HON. MR. JUSTICE ISHAQ BELLO ----- CHAIRMAN

5.         AVM RABIU DABO -------------------------- COMMISSIONER

6.         MR. EYO O. EKPO   ---------------------------  COMMISSIONER                      DEFENDANTS

7.         MRS. JOAN JATAU KADIYA --------------- COMMISSIONER

8.         MR. CHOM BAGU   --------------------------- COMMISSIONER                         

9.         DR. NUSIRUDEEN USMAN ----------------- COMMISSIONER

10.    MALLAM MOHAMMED ISAH ALIYU --- COMMISSIONER

11.    MR. DANIEL CHUKWUDI ENWELUM, SAN – Counsel to the Comm.

12. MR. MUSA KAKAKI, ESQ -------- Secretary to the Commission

(The 3^rd to 12^th defendants as persons appointed into the Commission

Of inquiry appointed by the 1^st Defendant on or about July 6, 2021)

REPRESENTATION

Femi Falana SAN, with Folabi Kuti SAN, Bright Odia, Michael Onyishi, Anthony Nkalegbu, A. Marshall for the Claimants.

 

Kanu G. Agabi (CON) SAN, with Okon N. Efut SAN, Chika Odoemene, S.Q. Agbor, Mary Igoh, S.O. Ekunke, Dorothy M. Jacob Duke, Mary Frances Orji, Maryrose A. Idu, Ogaku Kanu Agabi for the Defendants.

JUDGMENT

Introduction and claims

[1] The claimants commenced this action by originating summons on 12^th July 2021 pursuant to Order 48 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the inherent jurisdiction of the Court praying for the determination of the following legal questions:

1)    Whether by the combined reading of the provisions of Sections 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010; the provisions of 2^nd Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 20 (1), 33, 35, 36 and 40  of the Trade Disputes Act, the 1^st Defendant is invested with the Constitutional power to establish or constitute a Judicial Commission of Inquiry into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it.

 

2)    Whether the setting up of a Judicial Commission of Inquiry by the 1^st Defendant to investigate trade disputes between it and the Claimants violates the twin principle of eternal justice, namely, “audi alterem partem” and “nemo judex in causa sua.”

 

3)    Whether having regards to the facts and circumstances of the instant case, the resolution and determination of a trade dispute can be validly done outside the clear provisions of the Trade Disputes Act.

 

 

[2] In the event the questions for determination are answered in their favour, the Claimants are seeking the following reliefs against the Defendants:

1)    A Declaration that by the combined reading of the provisions of Sections 6 (6) (B), 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 and the provisions of 2^nd Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 20 (1) 33, 35, 36 and 40 of the Trade Disputes Act, the 1^st Defendant is not invested with the Constitutional power to establish or constitute a Judicial Commission of Inquiry into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021in Kaduna State and the actions and events associated with it.

 

2)    A Declaration that by the combined reading of the provisions of Sections 6 (6) (B), 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 and the provisions of 2^nd Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 20 (1), 33, 35, 36 and 40 of the Trade Disputes Act, the Judicial Commission of Inquiry established by the 1^st Defendant is unconstitutional, ultra vires, null and void and of no effect whatsoever.

 

3)    A Declaration that the subject matter of the Terms of Reference of the Judicial Commission of Inquiry being a trade dispute, same is a clear usurpation of the powers of the National Industrial Court donated by Section 254C of the 1999 Constitution (as amended) and reinforced by Part IV Sections 35 and 36 of the Trade Dispute Act.

 

4)    A Declaration that the Judicial Commission of Inquiry set up by the 1^st Defendant on July 6, 2021 to inter alia conduct inquiry into the actions and conduct of persons and organizations in relation to the 16^th to 19^th May, 2021 warning strike organized by the 1^st Claimant is illegal, unconstitutional, null and void and ultra vires the powers of the 1^st Defendant herein.

 

5)    A Declaration that in view of the provisions of Part III, Section 33 of the Trade Dispute Act and the pronouncement of Supreme Court of what constitute trade dispute in NUEE V. BPE, the 1^st Defendant cannot set up a Commission of Inquiry to investigate and recommend sanctions over a trade dispute between it and the 1^st and 2^nd Claimants.

 

6)    A Declaration that matters related to, or connected with any labour, employment, trade unions, industrial relations are circumscribed by Section 254C of the Constitution and only the National Industrial Court of Nigeria (NICN) has jurisdiction to exercise adjudicatory role/function in labour-related matters, to the exclusion of any other Court or tribunal.

 

7)    A Declaration that all labour-related matters, including trade unions, industrial relations; conditions, safety and welfare of labour; industrial disputes; prescribing a minimum wage for the Federation or any part thereof; and industrial arbitrations are under the Exclusive Legislative List in the Second Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

 

8)    A Declaration that the setting up of a Judicial Commission of Inquiry by the 1^st Defendant to investigate a trade dispute between it and the Claimants violates the twin principle of audi alterem partem and nemo judex in causa sua.

 

9)    A Declaration that in view of the Terms of Reference of the Judicial Commission of Inquiry set up by the 1^stDefendant, the Judicial Commission of Inquiry as set up by the 1^stDefendant is illegal and unconstitutional.

 

10)                                                                     An Order of this Honourable Court disbanding and setting aside forthwith the Judicial Commission of Inquiry set up by the 1^st Defendant and comprising of the 4^th to 12^th Defendants forthwith.

 

11)                                                                     An Order Of Mandatory Injunction prohibiting the Defendants from setting up a Judicial Commission of Inquiry into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it and to prohibit the Judicial Commission of Inquiry purportedly established by the Defendants from carrying out its unconstitutional purpose as contained in the Terms of Reference and the instrument establishing the Judicial Commission of Inquiry.

 

12)                                                                     An Order Of Injunction prohibiting the Judicial Commission of Inquiry purportedly established by the Defendants into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it from acting or further acting or carrying out its mandate as contained in the 14 Terms of Reference and the Instrument establishing the said Judicial Commission of Enquiry.

 

13)                                                                     An Order Of Injunction restraining the Judicial Commission of Inquiry purportedly established by the defendants into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it from acting or further acting or carrying out its mandate as contained in the 14 Terms of Reference and the Instrument establishing the said Judicial Commission of Enquiry.

 

14)                                                                     An Order directing and compelling the Defendants to comply fully with the provisions of Part 1 of the Trade Disputes Act in dealing with the disputes between the Defendants, Claimants, and the staff of Kaduna State Civil Service.

 

15)                                                                     An Order Mandating the 1^st Defendant to pay over to the claimants the sum of ₦300,000,000.00 (Three Hundred Million Naira) only as general, aggravated and exemplary damages for the unlawful and unconstitutional actions of the Defendants.

 

16)                                                                     An Order Mandating the 1^st Defendant to pay over to the Claimants the sum of 15, 000,000.00 (Fifteen Million Naira) only as cost of engaging lawyers, instituting, and maintaining this action.

 

17)                                                                     And any order or orders this Honourable Court may deem fit to make in the circumstance of this case.

 

[3] The originating summons is supported by an affidavit of 44 paragraphs sworn to by Comrade Benson Upah Head of Information and Public Affairs of the 1^st Claimant, and to which is annexed exhibits marked A to I, and a written address in support dated 7 July 2021. In opposing the originating summons, the Defendants filed a counter affidavit of 55 paragraphs sworn to on 7 February 2022 by Adaeze Agagbo Solicitor, and to which is annexed exhibits marked K1 and K2 and a written address dated 3 February 2022. The Claimants filed a further affidavit also sworn to by Comrade Benson Upah on 15 March 2022 and a reply on point of law dated 11 March 2022.

Submissions of the Claimants

[4] The facts upon which the claimants have premised their questions for determination and the reliefs they seeking are as contained in the supporting affidavit. To state the claimants case concisely, the 1^st claimant and its leaders had been embroiled in a labour dispute with the 1^st defendant over the disengagement of its members from the Kaduna State Government workforce by declaration of redundancies, premature compulsory retirement of all officers on grade levels 14 and above, termination; and failure to pay end of service benefits and entitlements contemporaneously. Following the industrial action embarked upon by the 1^st claimant Nigeria Labour Congress in Kaduna State on May 16 – 19, 2021, the Federal Government through the Minister of Labor intervened and apprehended the dispute. A conciliation meeting held at the conference room of the Minister of Labor where it was resolved by parties that all the issues fall within the ambit of redundancy therefore the provisions of Section 20 of the Labour Act should apply.

 

[5] A ten (10) man bi-partite committee comprising six (6) representatives of the State Government and three (3) officials of the 1^st claimant was set up to engage with a view to resolving the impasse. A memorandum of understanding was signed between the parties where it was agreed that there will be no further industrial action on the issues and no worker would be victimized on account of his or her participation in the industrial action. The Committee was expected to revert with the work plan for the peaceful resolution of all issues in contention to the Minister of Labour by 25^th May 2021. The claimants assert that the Kaduna State Government (KDSG) then established a Judicial Commission of Inquiry into the industrial action and the actions and events associated with it; and that the terms of reference of the Judicial Commission of Inquiry includes looking into the legality of the strike, and any breach of the relevant laws on trade disputes and essential services.

 

[6] The claimants issues for determination are the legal questions submitted to the court by the claimants For ease of reference they are reproduced seriatim as issues 1, 2, and 3:

 

1)    Whether by the combined reading of the provisions of Sections 6 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010; the provisions of 2^nd Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 20 (1), 33, 35, 36 and 40  of the Trade Disputes Act, the 1^st Defendant is invested with the Constitutional power to establish or constitute a Judicial Commission of Inquiry into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it.

 

2)    Whether the setting up of a Judicial Commission of Inquiry by the 1^st Defendant to investigate trade disputes between it and the Claimants violates the twin principle of eternal justice, namely, “audi alterem partem” and “nemo judex in causa sua.”

 

3)    Whether having regards to the facts and circumstances of the instant case, the  resolution and determination of a trade dispute can be validly done outside the clear provisions of the Trade Disputes Act.

 

[7] Learned SAN submitted that Section 1 (1) of the 1999 Constitution (as amended) guarantees the supremacy of the Constitution and that the provisions of the Constitution have binding force on all authorities and persons throughout Nigeria citing Eze v Gov, Abia State (2010) 15 NWLR (Part 1216) at 324. He further submitted that all persons and authorities exercised in the name of the Federal Republic of Nigeria are derived from the Constitution. That where any arm of government, agency or organization deriving power from the Constitution exceeds such powers, the courts have an obligation to declare such action as ultra vires its powers, null, void and of no effect. He further submitted that where the Constitution expressly provides for the doing of a thing or creates an obligation such persons or authority are not at liberty to neglect to discharge the responsibility or obligation as it is binding. He cited Alhaji Dododo v EFCC (2013) 1 NWLR (Pt. 1336) 468, Oran v Nigeria Liquified Natural Gas Ltd (2010) All FWLR (Pt. 535) 293 at 338 AGF & Ors v Alhaji Atiku Abubakar (2007) SC 10 NWLR (Pt. 1041) 1, Willimas v Dawodu (1988) 4 NWLR (Pt. 86) 189 at 218.

[8] Learned SAN submitted that by virtue of the provisions of Section 21 of the Tribunals of Inquiry Act, the Governor of a State is empowered to constitute a Tribunal of Inquiry to inquire into any matter in respect of which the Governor has power to make law. That since the Governor of a State has no power to make laws, the “House of Assembly” would be read in place of “Governor”. He submitted that by virtue of Section 1 of the Commissions of Inquiry Law (Cap. 34) of Kaduna State the 1^st defendant can competently set up a Judicial Commission of Inquiry but that the terms of reference must be in strict compliance with those matters the State House of Assembly can legislate upon. He argued that where the Governor in exercise of the powers donated to him by  the law establishes a Commission/Tribunal and vests it with powers outside its purview, such a Judicial Commission of Inquiry shall be declared null and void to the extent of its inconsistency.

[9] Learned SAN stated that the terms of reference of the Judicial Commission of Inquiry includes inter alia: (f) INQUIRE into the roles of various actors before, during and after the said “warning strike”, and determine whether actions and omissions by the following organizations and persons amount to a breach of any extant laws: The Nigerian Labour Congress and any affiliate union(s); Federal Ministry of Labour, Employment and Productivity; Mr. Ayuba Wabba; Mr. Joe Ajaero; Mr. Ayuba Suleiman; The Nigeria Police Force; and any other association(s), organization(s) or person(s) that the Commission may consider necessary. That the terms of reference of the Judicial Commission of Inquiry includes looking into the legality of the strike, and any breach of the relevant laws on trade disputes and essential services inter alia; and that this far exceeds the powers of a Judicial Commission of Inquiry a State Governor can set up. He submitted that the powers donated to the Judicial Commission of Inquiry in item I, M, N which bothers on taking evidence and inviting persons to give evidence before the Judicial Commission of Inquiry is ultra vires, null and void citing Fawehinmi v Babangida [2003] 3 NLWR (PT. 808) 655, Paras D–F, Fawehinmi & 2 Ors v Babangida (Rtd) & 2 Others (SC 360/2001) [2003] 9 (31 January 2003).

 

[10] Learned SAN submitted that the terms of reference of the Judicial Commission of Inquiry shows that the issues to be considered by the Commission are labour issues which is a matter domiciled within the Exclusive Legislative list under the Second Schedule, Part 1 of the 1999 Constitution (as amended). He further submitted that neither the 1^st defendant nor the Kaduna State Legislature can validly legislate upon such matter or establish/constitute a Judicial Commission of Inquiry with terms of reference bordering on labour or industrial matters. It was his further submission that Labour and Industrial matters being on the Exclusive Legislative list, the defendants are not legally or constitutionally empowered to establish or constitute a Judicial Commission of Inquiry or any Tribunal for the purposes of considering the claimants warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it. He cited Attorney General Federation v Attorney General Lagos State (2013) LPELR-20974 (SC) Attorney General Of Lagos State v Eko Hotels Limited & Anor (2006) LPELR-3161 (SC).

 

 [11] It is the submission of learned Senior Counsel that whilst the 1^st defendant is legally empowered by the Commission of Inquiry Law, Cap 34, Laws of Kaduna State, 1991 to establish or constitute a Judicial Commission of Inquiry, the 1^st defendant cannot constitute a Judicial Commission of Inquiry to look into a matter that is within the Exclusive Legislative List, as doing so would amount to usurpation of the constitutional powers of the Federal Government and the National Assembly. He further submitted that the National Industrial Court has exclusive jurisdiction over all labour related matters namely, employment; trade unions; industrial relations restrictively circumscribed by Section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 citing Okwudiashi v Costain West Africa Plc. [2011] 23 NLLR (PT. 65) 311, Para E–F.

 

[12] He referred to the provisions of Section 254C of the 1999 Constitution  (Third Alteration) Act 2010 and submitted that the National Industrial Court has exclusive jurisdiction on all matters set out thereof to the exclusion of any court or tribunal in Nigeria. He argued that the Judicial Commission of Inquiry constituted and/or purportedly established by the 1^st defendant to look into labour issues is an attempt to usurp the exclusive constitutional adjudicatory role and function of the National Industrial Court, and to that extent, the said Judicial Commission of Inquiry is illegal, unconstitutional, null and void and of no effect. He cited Sunday Ainabebholo v Edo State University Workers Farmers Multipupose Co-Operative Society (2015) LPELR-24573 (CA), Dr. Taiwo Oloruntoba-Ojo & Ors v Prof. Shuaib O. Abdul-Raheem & Ors (2009) LPELR-2596 (SC).

 [13] Learned SAN submitted that the terms of reference and powers of the Judicial Commission of Inquiry violates Section 6 (6) b and Section 254C of the 1999 Constitution (as amended). That Section 6 (6) (b) of the 1999 Constitution provides that the judicial powers vested in accordance with the provisions shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. He argued that a juxtaposition of the constitutional provision with the terms of reference of the Judicial Commission of Inquiry  evinces the fact that the powers donated to the Judicial Commission of Inquiry is in direct conflict with the powers constitutionally vested in the courts.  He submitted that by virtue of Section 1 (3) of the 1999 Constitution, any law whatsoever that conflicts with the provisions of the 1999 Constitution is to be declared null and void.

[14] Learned SAN submitted that the Trade Dispute Act defines a "trade dispute" as “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.” He submitted that strike, legality of strike, downsizing, right sizing, redundancy and all other matters incidental thereto are trade disputes. He stated that the affidavit evidence of the claimants clearly shows that there was an existing trade dispute between parties that led to the signing of the collective agreement.

[15] On issue 2, learned Senior Counsel argued that incontrovertible evidence exists to show that the 1^st defendant and the Government of Kaduna State are parties to the trade dispute that led to the warning strike. To the claimants, the question is why a party to a dispute will seek to play the combined roles of aggressor, defendant, arbiter and a judge in his own case? And how would a dispassionate observer of the impasse between the 1^st claimant and the 1^st defendant view the Judicial Commission of Inquiry set up by the 1^st defendant an adversary particularly in view of the fact that the law has already laid down a procedure for resolution. He cited Hart v Military Government Of Rivers State (1976) 11 SC 111. He argued that irrespective of the composition and the integrity of the members of the Judicial Commission of Inquiry, a person seized of the matter would have cause to question the motive behind the setting up of the Judicial Commission of Inquiry particularly when the Constitution has already provided the appropriate forum for ventilating such grievances.

[16] Learned Senior Counsel argued that the defendants have a duty to observe the twin principles of fair hearing in the exercise of their powers and that they have no right in law and equity to damnify the claimants for an infraction the 1^st defendant is guilty of. He cited Adigun v A-G Oyo State & Ors. (1987) 1 NWLR (Pt. 53) 678 at 744-745 Paras. H-B; Okoye v Lagos State Government [1990] 3 NWLR [Pt. 136] 115 at 126 Paras B-D; Iwuji v Federal Commissioner For Establishment [1985] 1 NWLR (Pt. 3) 497 at 520 Paras B-C; NAFDAC v Regan Remedies (2019) 17 NWLR (Pt. 1700) 1 at pp. 57-58 paras G-D; Stitch v Attorney-General Federation (1986) (Pt. 46) 1007 P. 1029 at paras. A-D.

[17] In arguing issue 3, learned Senior Counsel referred to Section 54 of the Trade Unions Act for the meaning of trade dispute and referred to Idubor, Richard, Employment and Trade Dispute Law in Nigeria, 2007, Benin City, Sylva Publishers Ltd. pg. 169 where the author defined ‘trade dispute’ as: “all disputes arising out of terms and conditions of employment; engagements and non-engagements, suspension or termination of employment; allocation of work duties between workers or groups of employees; matters of discipline, membership or non-membership of trade unions, facilities for trade union officials; trade union recognition, and dispute arising out of the machinery for negotiation. Industrial Dispute connotes a dispute between workers or a body of workers and the employer as touching the terms of employment or condition of work.”  He cited Attorney-General Oyo State v Nigeria Labour Congress Oyo State Chapter & 4 Ors [2003] 8 NWLR (Pt. 821) 1 at Page 26, Paras D-H Oshiomhole v F.G.N. (2007) 8 NWLR (Pt. 1035) 58 at 78; Globerstar Engineering Co. Ltd v Omatseye & 65 Ors (2008) LPELR- 4203 (CA).

[18] Learned Counsel submitted that by Section 1 of the Trade Disputes Act, where a trade dispute exists or is apprehended, the provisions of the Part 1 of the Trade Disputes Act shall apply in relation to the dispute. That it is therefore compulsory for parties to a trade dispute to comply with the provisions of Part 1 of the Trade Disputes Act in seeking to resolve their disputes. He referred to Sections 4, 5, 6, 9 of the Trade Disputes Act and submitted that the parties to a trade dispute are expected to settle their disputes by any pre-agreed settlement procedure and where the settlement fails, or there is no pre-agreed procedure, the parties are to mutually appoint a mediator towards the amicable settlement of the dispute. That this is without prejudice to the right of the Minister of Labour to propose written settlement steps towards resolving the dispute where he apprehends same under Section 5 of the Trade Disputes Act. He submitted that the procedures enumerated in Sections 4, 6, and 9 of the Trade Disputes Act are mandatory, and must be complied with in all trade disputes; and they are also pre-conditions before the disputing parties can take an action to the National Industrial Court.

[19] He argued that that having not exhausted the statutory procedure under the Trade Disputes Act, the 1^st defendant set up the Judicial Commission of Inquiry for the purpose of usurping the powers and jurisdiction of the National Industrial Court and to ambush the claimants. He then urged the court to come to the finding that the provisions of Part 1 of the Trade Disputes Act are sacrosanct and must be complied with in any trade dispute, and to grant the reliefs sought by the claimants.

Submissions of the Defendants

[20] The facts upon which the defendants have premised their opposition to the Originating Summons are contained in the counter affidavit affidavit. To state the defendants case concisely, between 16 and 19 May 2021, the claimants embarked on a warning strike that culminated in breach of the public peace in Kaduna State. The defendants allege that the activities of the claimants contributed to loss of lives and property in the State. That pursuant to the powers conferred on him under the Constitution and the Commission of Inquiry Law of Kaduna State, the 1^st defendant deemed it necessary to set up a Judicial Commission of Inquiry into the events leading to loss of lives and property. That in furtherance of this, the 3^rd defendant was set up to investigate the events of 16 – 19 May 2021 and make appropriate recommendations to the government of Kaduna State. Before the 3^rd defendant could commence investigations, the claimants instituted this action aimed at preventing the 3^rd defendant from undertaking the investigations; and obtained an ex-parte order of injunction restraining the 3^rd defendant from carrying out the investigation – an order that the 3^rd defendant has complied with.

 

[21] The Defendants submitted the following issues for determination:

 

1.     Whether the action of the Claimants is premature and ought to be dismissed on the ground that this Honourable Court lacks jurisdiction to entertain actions that are premature.

 

2.            Whether the Judicial Commission of Inquiry is constitutional having regard to the fact that all executive power is vested in the 1^st Defendant as Governor of Kaduna State to execute the constitution and to order such investigations as may aid and facilitate his governance of the state with a view to securing its peace, order and good government?

 

3.            Whether having regard to the facts and circumstances of the instant case the setting up of the Judicial Commission of Inquiry was intended to investigate conduct, whether on the part of the Claimants or any other persons or authorities, which had occasioned a breach of the peace or whether it was intended to resolve a trade dispute?

 

4.            Whether the setting up of the Commission constitutes a usurpation of the powers of the National Industrial Court? 

 

5.            Whether by setting up the Commission of Inquiry the 1^st Defendant is acting in violation of the rule of fair hearing?

 

6.            Assuming that labour-related matters are in the exclusive legislative list, whether that precludes a state government from investigating conduct that threatens the peace, order and good government of the state.

 

7.            Whether the claimants are entitled to the reliefs sought in this action.

 

[22] Learned SAN on issue 1, submitted that this instant action does not disclose any cause of action against the defendants and that the court lacks the jurisdiction to entertain it. He further submitted that in an action against a Judicial Commission of Inquiry, cause of action arises only when the report of the Commission has been accepted by the government. It was his argument that the evidence of such acceptance is typically done via the instrumentality of a white paper issued to that effect.  And that the justification for this is that even after a Commission of Inquiry has rounded off its inquiries and submitted its report, the government, in this case, the 1^st Defendant may decide either accept or reject the report of the Commission. He submitted that until the decision of the Commission of Inquiry is accepted and published, no cause of action inures against the Commission or the Government setting it up. He referred to Bajowa v FRN & Ors (2016) LPELR-40229 (CA) 15 - 17 Para D – A; Tao And Sons Industries Ltd v Governor Of Oyo State (2011) 6 NWLR (1242) 115; Ntung & Ors v Longkwang & Ors (2018) LPELR-45624 (CA)

 

[23] Learned SAN argued that the complaint of the claimants center around the setting up and or constitution of the Judicial Panel of Inquiry. That from the claimants’ own case, that panel has not even commenced sitting. No findings have been made or decisions been shown to have been reached by the panel which are adverse to the rights of the claimants; yet they have proceeded against it and all other defendants by this action. Learned Senior Counsel submitted that in the circumstances, this action is premature, no cause of action exists against the defendants as no dispute is shown to exist between the parties. The effect being that the suit is academic, conjectural and it hangs in the realm of hypothesis - an exercise that this court is precluded from embarking on. He submitted that our civil jurisprudence protects citizens from being hurled into court without the existence of actual legal grievances against them; and he cited Military Administrator Ekiti State v Aladeyelu (2007) 14 NWLR (PT 1055) at 652, A-G Federation v Abubakar (2007) 10 NWLR (PT 1041) P. 121-122 Para H-A for the meaning of cause of action.

 

[24] Learned SAN submitted that cause of action has been defined by the Apex Court to mean a factual situation or dispute, the existence of which entitles one person to obtain from the court a remedy against another person. He argued that in regular civil proceedings, to which class this case belongs, a cause of action is not founded on conjectures or imaginations of threatened rights. That the right to the protection against anticipatory breach of right avails only in an action for the enforcement of fundamental rights, and this action is not one for the enforcements of the claimants’ fundamental rights. He argued that the entire narration of facts preceding the constitution of the Commission of Inquiry does not constitute the grievance or alleged grievance of the claimants for the purpose for this action. And that it is the setting up of the Commission that the claimants challenge by this action and that in itself does not give rise to a cause of action.

 

[25] Learned Senior Counsel further submitted that the claimants lack the locus standi to initiate this action as none of their civil rights or obligations have been violated or determined. That it is only when the civil rights and obligations of a person or persons have been violated or determined in a manner unfavourable to that person, that the law confers on him or them the standing to maintain an action in court. He submitted further that in determining whether or not a person has the standing to maintain an action in court, the two tests are the wrongful act of the defendants complained of, and the consequential damages arising therefrom citing Omega Bank Plc v Government Of Ekiti State (2007) ALL FWLR (PT. 386) 658 at 690 para B, Nwaogwugwu v President, FRN (2007) 76 NWLR (PT 1030) 246, A-G Federation v Abubakar (2007) 10 NWLR (Pt 1041) 75 at Paragraphs E-G.

 

[26] He submitted that none of the ingredients have been shown by the claimants to exist as the mere setting up of a Judicial Commission of Inquiry where the claimants are named as persons to be summoned does not constitute a wrongful act. He argued that arising from the want of cause of action and lack of locus standi, the court lacks the jurisdiction to entertain the action citing Aloba v Akereja (1988) 3 NWLR (Pt. 84) 508, Lekwot v Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410, A.G. Anambra State v AGF (1993) 6 NWLR (Pt. 302) 692, Oyebade v Ajayi (1993) 1 NWLR (Pt. 269) 313 At 330.

 

[27] On issue 2, learned Senior Counsel submitted that the 1^st defendant is statutorily clothed with the vires to set up the 3^rd defendant and to entrust it with the authority to conduct investigations or carry out inquiries into the strike action embarked upon by the claimants and its attendant activities which culminated in breakdown of law and order in Kaduna State; a State over which the 1^st defendant is the Chief Security Officer and ultimate accounting authority. He argued that nothing in the provisions of sections 6(6) b, 254C, and 2^nd Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended); and Sections 20(1), 33, 35, 36 and 40 of the Trade Disputes Act, inhibits the 1^st defendant from constituting a Judicial Commission of Inquiry, the 3^rd Defendant herein to inquire into issues affecting the peace, order and good government of the State. He argued that the power of the 1^st defendant to constitute a commission of inquiry into any matter arising from or bordering on the state and its public welfare is an integral and inseparable part of the supervisory functions of governance vested in a Governor, the 1^st Defendant. He cited Governor Of Kwara State v Lawal (2007) 13 NWLR (Pt.1051) 347 at 388 Paras. E-F, Cafar v Government Of Kwara State (2007) 4 NWLR (Pt. 1024) 375 at 410 Para. F.

 

[28] Learned SAN referred to Sections 176(1) and 176(2) and submitted that by these provisions, the 1^st Defendant is the Chief Executive of Kaduna State; and the security of lives and property of everyone within Kaduna State is at the core of the 1^st Defendant’s executive mandate. He argued that the 1^st Defendant, in the discharge of his executive functions deemed it in the public interest to set up the 3^rd Defendant, a Judicial Commission of inquiry following the breakdown of law and order during the protest. It was his submission that in setting up the 3^rd Defendant and saddling it with the responsibilities with which it is given, the 1^st Defendant acted pursuant to the powers conferred on him under the Section 2 Commissions of Inquiry Law (Cap 34), Laws of Kaduna State of Nigeria, 1991, and Section 176(1) and (2) of the 1999 Constitution and all other laws enabling him in that behalf. That the powers vested in the 1^st defendant to constitute a commission of inquiry, is exercisable not only in respect of an inquiry into the conduct of public officers in the public service of the state or any chief or the management of any department of the public service or of any local institution but also whenever he deems same desirable as long as the subject matter is one in respect of which in his opinion, an inquiry would be for the public welfare.

 

[29] Learned Senior Counsel argued that wide as the power seems, it is lawful and constitutional, and that the Supreme Court has described same as being ‘unfettered’; and he cited Onyekwuluje & Anor v Benue State Govt & Ors (2015) LPELR-24780 (SC) (Pp 66 - 66 Paras C - D), Kabirikim & Anor v Emefor & Ors (2009) LPELR -902 (SC). He stated that the phrase ‘any matter in respect of which in his opinion an inquiry would be for the public welfare’ was expatiated by the Court of Appeal in Suswam v Governor Of Benue State & Ors (2018) LPELR-47368 (CA) at Pp 6 - 15 Paras A – A. He submitted that from the totality of the decisions and provisions of the Commission of Inquiry Law of Kaduna State, the 1^st defendant is imbued with the power to set up a Commission of Inquiry in respect of the conduct of any officer in the Public Service, any chief, the management of any department of the Public Service, or of any local institution, and any matter in respect of which in his opinion, an inquiry would be for the public welfare. He submitted that the strike action embarked upon by the claimants and its attendant consequences fall into this category.

 

[30] Learned Senior Counsel submitted that the powers of the 1^st defendant to set up the 3^rd Defendant donated by Section 2 of the Commissions of Inquiry Law (Cap 34), Laws of Kaduna State is in every respect consistent with the provisions of the Constitution. He argued that neither the Commission of Inquiry Law nor the terms of reference of the 3^rd Defendant is ultra vires or unconstitutional. That in the circumstance, the question of supremacy of the constitution or incompatibility of the Commissions of Inquiry Law (Cap 34), Laws of Kaduna State with the constitution does not arise at all. Therefore, the authorities of Eze v. Gov. Abia State (2010) 15 NWLR (Pt 1216), Alhaji Dododo v. EFCC (2013) 1 NWLR, Fawehinmi v Babangida (2003) 3 NWLR (Pt. 808) 655, Paras D-F etc, cited by the claimants, are cited out of context and misapplied to the facts and circumstances of this case. He argued that the decision in Fawehinmi v Babangida (2003) 3 NWLR (Pt. 808) 655, which the claimants rely to contend that the 3^rd defendant cannot take evidence, did not decide that a commission of inquiry cannot take evidence in the performance of its functions. That the decision is simply to the effect that the subject matter of evidence is under the Exclusive Legislative List, the implication being that a House of Assembly of a State cannot legislate on it. He submitted that the Supreme Court unequivocally validated the power of a Judicial Panel of Inquiry to take evidence and to compel the attendance of witnesses.

 

[31] Learned SAN further submitted that the very essence of a panel of inquiry whether christened judicial or not, is to collate evidence over or on a subject matter which is of interest to the government setting it up referring to Chukwudi v Momah & Ors (2017) LPELR-42675 (CA). He submitted that the claimants argument that the 3^rd defendant cannot carry out inquiry into its warning strike from 16 to 19 May 2021 because labour is a matter domiciled under the Exclusive Legislative List by virtue of the Second Schedule, Part 1 of the 1999 Constitution, is legally insupportable. That the claimants’ warning strike in Kaduna State from 16 to 19 May 2021 and the destruction of public properties and loss of lives is a matter in respect of which, in the opinion of the 1^st defendant, an inquiry would be for the public welfare; and to this extent, the 3^rd defendant is lawfully constituted and its terms of reference not ultra vires. He submitted that it is a trite principle of interpretation that where the wordings of a Law or an Act are clear and unambiguous, they should be given their ordinary literal meaning citing Ibrahim v JSC [1998] 14 NWLR (Pt 584) P. 34, Para. G, Sanwo-Olu v Awamaridi (2020) 11 NWLR (Pt 1736) 480. He submitted that in the instant case, the provisions of section 2(1) of the Commission of Inquiries Law of Kaduna State are clear and unambiguous and that the Law only intends that by the provisions of that section the 1^st Defendant can issue a commission of inquiry into any matter as long as he holds the opinion that such action would be for public welfare.

 

[32] It was the argument of learned Senior Counsel that the reliance by the claimants on A.G Federation v. A.G Lagos State (2013) LPELR-20974 (SC) And AG Lagos State v. Eko Hotels Ltd (2006) LPELR- 3161 to define what constitutes exclusive and concurrent legislative lists is unavailing to the case the claimants seek to make as neither the meaning nor distinction between Exclusive and Concurrent Legislative List is in issue before this Honourable Court. He submitted that the facts of and decision in AG Lagos State v. Eko Hotels Ltd (supra) relied upon by the claimants, are distinguishable from and inapplicable to the instant case; as the decision was thus predicated solely on the unique provisions of section 1 of the Tribunal of Inquiry Law, Cap 190 - Laws of Lagos State  which renders the power of the governor to commission an inquiry subject to matters over which the House of Assembly of that State has legislative competence.

 

[33] Learned SAN in arguing issue 3 referred to the terms of reference of the Commission and submitted that a community consideration of the terms of reference set out as C, D, E and F, shows that the primary and ultimate aim of the 3^rd defendant is to carry out an ‘inquiry’ into the activities surrounding the warning strike and its related matters. He submitted that there is no procedure for investigation of loss of lives and wanton destruction of properties in Sections 1, 4, 6, 9 and 54 of the Trade Dispute Act. He argued that the totality of the facts giving rise to the setting up of the 3^rd defendant are not within the ambits of the definition of trade dispute in section 54 of the Trade Disputes Act, and the cases of A-G Oyo State v. NLC (2003) 8 NWLR (Pt 821) 1, Oshiomhole v. FGN (2007) 8 NWLR (Pt 1035), to warrant resort to the Act. He submitted further that assuming but not conceding that there was a trade dispute between the Government of Kaduna State and the claimants, Section 40 of the Trade Dispute Act LFN 2004 vests on the Governor the powers to set up a panel of inquiry into State trade dispute. He submitted that by the definition of trade dispute, it is contemplated that a State Governor has competence to see to its resolution. He referred to Section 40 (1) of the Trade Disputes Act (TDA) for the definition of State trade dispute.

 

[34] On issue 4, learned SAN submitted that no jurisdictional conflict exists between the terms of reference of the 3^rd defendant and the powers of this court; and that the cases of Dr. Taiwo v. Prf. Shuaib Abdulraheem (2009) LPELR – 2596 (SC), Sunday v. Edo State University Workers Farmers Multipurpose Co-Operative Society (2015) LPELR – 24573 (CA), Okwudiashi v. Costain West African Plc (2011) 23 NLLR (Pt. 65) 311 cited by the claimants are misapplied. He argued that beyond the reference to these cases and constitutional/statutory provisions, the claimants have failed to demonstrate how the terms of reference of the 3^rd defendant usurp the exclusive jurisdiction of this court and that the claimants have misconstrued the import and extent of the power of a judicial panel of inquiry. That a panel of inquiry whether christened judicial panel or not and whether headed by a jurist or not or by a learned judge or person not learned in law, is nothing more than a fact finding panel and has no adjudicatory authority including the 3^rd defendant. He contended that the 3^rd defendant is not set up to adjudicate over the warning strike embarked on by the claimants and does not possess the power to determine the civil rights and obligations of the claimants arising from that strike citing Chukwudi v Momah & Ors supra.

 

[35] Learned SAN submitted that the argument that the constitution of the 3^rd defendant violates section 6(6) b of the 1999 Constitution is not correct as nothing in the provisions of the Constitution prohibits the setting up of or constitution of a Commission of Inquiry more so when such commission does not have adjudicatory powers. He submitted that the powers conferred on the Governor of a State to establish Commissions of Inquiry viz a--viz the powers of the courts does not amount to usurpation of or interference with judicial powers relying on Kabirikim & Anor v. Emefor & Ors (supra).

 

[36] Learned Senior Counsel argued that the setting up of a Judicial Commission of Inquiry by the 1^st defendant to investigate the warning strike embarked upon by the claimants and all matters related thereto does not violate the twin principles of natural justice, audi alterem partem and nemo judex in causa sua. He referred to INEC v. Musa (2003) 3 NWLR (pt 806) 72, Aiyetan v. The Nigerian Institute of Oil Palm Research (1987) LPELR-275 (SC) for the meaning and essence of the first of the twin pillars of natural justice- audi alterem partem. It was his submission that audi alterem partem is satisfied once a party has been given the opportunity to be heard in respect of any matter or cause touching on or affecting his interest. And that in this instance the claimants have been offered that opportunity to be heard by the Commission of Inquiry which is apparent from Paragraph M of the terms of reference of the instrument setting up the 3^rd defendant having been specifically mentioned as persons of interest to be summoned before the 3^rd defendant. He argued that the intended summons is aimed at affording the claimants the opportunity to be heard and that since the 3rd defendant hasn’t commenced sitting on account of the present action and the injunction issued thereto, the claimants cannot legitimately complain of the breach of the principle of being heard.

 

[37] On the principle of nemo judex in causa sua that a person should not be a judge in his own cause, learned Senior Counsel argued that the 1^st Defendant has not done anything suggestive of trying to be a judge in his own cause. That the mere fact that the 3^rd defendant is set up by the 1^st defendant does not mean that the 1^st defendant sets out to be a judge in his own cause. To argue that the constitution of the 3^rd defendant by the 1^st defendant amounts to being a judge in his own cause, is akin to arguing that since the National Industrial Court is created by an Act of the National assembly, if the National Assembly of the Federal Republic of Nigeria has a cause it intends to ventilate before this Honourable Court against any of its employees, the National Assembly will be a judge in its own cause through the instrumentality of this Court. He referred to the membership of the 3^rd defendant Commission and stated that none of the is a part of the Government of Kaduna State and therefore none has a vested interest to protect either for themselves or the Government of Kaduna State.

 

[38] It was his submission that there is no justifiable basis for the claimants to plead denial of fair hearing citing Sabiru Adebayo v. A.G Ogun State (2008) 33 NSCQR (Vol. 1) 25- 26, and that ‘an allegation of denial of fair hearing is not a magic wand that can be waived by a litigant who has not availed himself of the opportunity to be heard’ citing Newswatch Ltd v. Atta (2006) All FWLR (Pt 318). He submitted that  the cases of Hart v. Military Governor Of River State, Adigun v. A-G Oyo State, Okoye v. Lagos State Government, Iwuji V. Fed Comm. For Establishment, Nafdac V. Regan Remedies, Stitch v. AG Federation cited by the claimants, are cited out of context and are inapplicable to the facts of this case. He prayed the Court to hold that there is no feature in the constitution and composition of the 3^rd defendant that will deny the claimants of their right to fair hearing.

 

[39] Learned SAN on issue 6 argued that assuming labour-related matters are in the Exclusive Legislative list, the 1^st defendant is statutorily empowered to constitute a commission of inquiry whenever he deems same desirable as long as the subject matter is one in respect of which in his opinion, an inquiry would be for the public welfare; and it does not matter whether or not the terms of reference of the Commission falls under the Exclusive Legislative list. He submitted that the Federal Government lacks the power to set up a Tribunal of Inquiry with jurisdiction over the entire Federation even over those matters contained or supposedly contained in the Exclusive Legislative List; as its powers in this respect, can only be restricted to issues and matters arising from the Federal Capital Territory. He cited Fawehinmi v. Babangida (2003) 3 NWLR (Pt. 803) 604 at 690-691 and submitted that the power of the 1^st defendant to constitute the 3^rd defendant is underscored by the fact that the Federal Government under whose purview items in the Exclusive Legislative List resides does not have the power to set up any Commission or Tribunal of Inquiry over actions or matters in States. He submitted that the Tribunal of Inquiry Act, relied upon by the claimants, is not a law of general application to the States of the Federation, and is not applicable to Kaduna State.

 

[40] Learned SAN referred to statements made by Learned Senior Counsel to the claimants in the Vanguard Newspaper of 1 December, 2021, particularly at page 11 and argued that from the newspaper publication, he concedes not only the point that the Tribunal of Inquiry Act does not apply to States of the Federation but also that a Tribunal of Inquiry set up by a State government can carry out inquiries on activities of Federal Government agencies or officers whose mandate in essence comes under the purview of items from the Exclusive Legislative List.

 

[41] On issue 7, learned SAN submitted that the claimants are not entitled to any of the reliefs sought in this action as they have no cause of action or locus standi to institute the present action; and furthermore, the principal reliefs sought by the claimants are  declaratory in nature and they can only succeed on the strength of their case referring to Nduul v. Wayo & Ors (2018) LPELR-45151(SC). He then urged the Court to uphold the arguments of the defendants and dismiss this action.

 

Claimants’ reply on point of law

 

[42] Learned SAN for the claimants began by challenging the legal validity of the counter affidavit of the defendants. He submitted that there are contradictions in the paragraphs of the counter affidavit by the deponent; and that a counsel who speaks from the bar, or in an affidavit deposition that is basically evidence in chief in a court process must endeavour to avoid the temptation of lying on oath or speaking half truths for whatever consideration. He stated that the deponent to the counter avers that the depositions in the affidavit in support of the Originating Summons "are false and misleading" and submitted that a counter affidavit is required to challenge specific facts in an affidavit and not to dismiss them as false and misleading; denial of depositions in an affidavit must be specific and unequivocal citing Messrs Lewis Peat (N.R.I.) Ltd v. A.E. Akhimien (1976) 7 S.C. 167; Akintola v. Solano (1986) NWLR 598, Ola v University Of Ilorin [2014] 15 NWLR 453 . He urged the court to hold that the paragraphs 6, 7, 8, 48 are not denials and do not fulfil the criterion of a counter affidavit as the paragraphs of the claimants affidavit they sought to insufficiently controvert have not been traversed. He submitted that paragraphs 1, 2, 3, 5, 6, 7, 8, & 48 offends the provisions of Section 115 of the Evidence Act, 2011 and are liable to be expunged, and Paragraphs 42, 43, 45 52 53 & 54 are arguments, conclusions and opinions by virtue of Section 115 of the Evidence Act that ought be expunged and discountenanced.

 

[43] Learned SAN submitted that the defendants’ misconceived the position of the law, as well as the position of the claimants in their arguments that the suit as presently constituted discloses no cause of action against the Defendants and that the Claimants lack the locus standi to commence the instant suit. He argued that the defendants in addressing their 7 issues have merely made out a case at variance (parallel) to that of the claimants. That the pith of the claimants’ case is that the 1^st defendant exceeded his constitutional powers whilst setting up the 3^rd defendant to inquire into matters beyond his State government’s legislative competence. That the question which must be answered is whether the 1^st defendant can set up a Judicial Commission of Inquiry to look into matters related to or connected with trade disputes or labour related matters?

 

[44] Learned Senior Counsel submitted that the claimants’ suit as presently constituted is not premature and discloses a reasonable cause of action, capable of activating the jurisdiction of the Court. He submitted that the claimants’ case as constituted in the originating summons seeks the court’s determination on the constitutionality of the 3^rd defendant’s terms of reference with respect to an inquiry related to, connected with, and arising from trade disputes and labour related matters. He submitted that the case of Bajowa v FRN & Ors (2016) LPELR -40229 (CA) cited by the defendants is not applicable as the facts are entirely different. He stated that the plaintiff challenged the recommendation and report of the Judicial Commission of Inquiry set up by the Federal Government. On filing the suit, the defendant objected to the jurisdiction of the trial court on grounds that the plaintiff’s action was statute barred. The Court then held that in an action challenging the recommendation of a judicial commission of inquiry, the accrual of cause of action starts from the date of acceptance of the recommendation by the government. He further submitted that the misapplication of the Bajowa case by the defendants also applies to the case of Ntung & Ors v Longkwang & Ors (2018) LPELR – 45624 (CA) cited by the Defendants.

 

[45] Learned Senior counsel submitted that it is the claimants originating processes and not the interpretation of the defendant that determines claimants cause of action. Specifically it is the facts pleaded in the claimant’s statement of claim or affidavit in support of originating summons and not what the defendants understand as the claimants claim citing Ekekeugbo v Fiberesim (1991) 6 NWLR (Pt 335) 707 @ 726. He argued that a defendant cannot use the occasion of depositions in a counter affidavit to disprove a claimants’ cause of action, and that the suit as constituted discloses a reasonable cause of action capable of activating the jurisdiction of the Court. He cited citing Imperial Homes Mortgage Bank v D- Var Consulting Ltd. (2016) LPELR – 40319 (CA); Chief S.A. Dada & 3 Ors. v Otunba AdeniranOgunsanya & Anor.(1992) 3 NWLR (Pt. 212) 754, Mobil Producing Unlimited V Lasepa (2002) LPELR 1887 (SC), Soba v Abdullahi (2013) LPELR – 22630 (CA) @13 -14 E – B, Yusuf & Ors v. Akindipe & Ors (2000) LPELR-3532(SC), Rinco Construction Co. Ltd. v. Veepee Industries Ltd. & Anor (2005) LPELR-2949(SC).

 

[46] On the issue of locus standi, learned Senior Counsel submitted that the courts have in an unbroken stream of cases elucidated unequivocally on what a party must show to establish locus standi to initiate a suit. That all that is required to be shown is sufficient interest in the matter, and violation or threatened violation of civil right and obligation, citing Ojukwu v Ojukwu & Anor (2008) LPELR – 24-1 (SC), Fawehinmi v President (2008) 23 WRN 65, Willimas v Dawodu (1988) 4 NWLR (Pt. 86) 189 at 218, B.B Apugo & Sons Ltd. v OHMB (2016) LPELR – 40598 (SC) 85, Pacers Multi Dynamics Ltd v. M.V. Dancing Sister (2012) 1 SC (Pt. 1) p.75. He submitted that that locus standi is not only established when a right has been violated, that the mere fact that a litigant’s civil right is in danger or under an imminent threat of attack or violation, confers a right of action on that litigant citing Owodunni v Registered Trustees of Celestial Church of Christ (2000) 6 SC (Pt.3) p. 60. It was his further submission that the claimants have shown sufficient interest in the subject matter of the suit.

 

[47] Learned SAN argued that assuming without conceding that the claimants have failed to disclose sufficient interest in the subject matter of the suit, so as to be conferred with the requisite locus standi to sue, the absence of locus standi is not fatal to the claimants’ case, being one challenging a constitutional infraction by the 1^st defendant citing Plateau State & Anor v. ADF & Anor (2006) NGSC 39. He submitted that the paradigm had since been changed by the Apex Court on the technicality of locus standi in suits founded on constitutional issues. That it is now trite that the technical requirement of locus standi becomes unnecessary where a suit is brought to challenge a violation of any of the provisions of the Constitution and or any other statute. He argued that since the claimants suit challenges constitutional and statutory breaches, cause of action automatically inures in their favour citing Fawehinmi v President of FRN &Ors supra, and Fawehinmi v Akilu (1987) supra.

 

[48] Learned SAN submitted that with matters relating to trade disputes as in the instant suit, the Trade Disputes Act gave clear provisions on delegation of powers by the Federal Minister of Labour. He referred to Sections 40 (3) and 40 (4) (d) of the Trade Disputes Act and submitted that the provisions are mandatory and were not complied with before the 3^rd defendant was established by the 1^stdefendant. He argued that the powers conferred on the Governor by Section 40 (4) (d) of the Act is only exercisable after the fulfilment of the provisions of Section 40 (3); which is that the Minister of Labour must have published in the Federal gazette, an order delegating either generally or in respect of any particular State trade dispute, his powers to a State Commissioner responsible for welfare and labour matters. That until this done, the 1^stdefendant cannot set up a board of enquiry on State trade disputes. He stated that there was no order published in the Federal gazette by the Federal Minister of Labour delegating his powers either in general or in specific to the trade disputes referenced in this suit. That as a result, the 1^st defendant could not have validly exercised his powers under section 40 (4) (d).

 

[49] Learned Senior Counsel submitted that the constitution of the 3^rd defendant is unconstitutional, notwithstanding the provisions of the Commission of Inquiry Law of Kaduna State. He argued that the application of section 2 of the Commission of Inquiry Law of Kaduna State in this instance amounts to a fundamental breach of the provisions of the Constitution which vests exclusivity on the Federal Government on matters relating to labour. That whilst the it is conceded, that the 1^st defendant may set up a Commission of Enquiry on any matter in the interest of public good and welfare, the power cannot under any guise be extended to labour related matters. To do so is to undermine the supremacy of the Constitution that the Court is enjoined to protect by virtue of Section 1 (1) & (3) of the Constitution.

 

[50] On the statements published in the Vanguard Newspaper of 1 December, 2021, it is the submission of learned Senior Counsel that the opinion expressed was not on behalf of the claimants. It was a personal opinion expressed over an issue completely unrelated to the issue before the Court. He referred to Section 67 of the Evidence Act 2011 and submitted that opinion evidence is generally inadmissible. He urged the court to discountenance the arguments of the defendants and grant the reliefs sought in the originating summons.

 

Decision

[51] I have carefully considered the originating summons, the affidavit evidence of the parties, arguments, submissions and authorities cited by counsel. I will first determine the issue of jurisdiction, a fundamental and threshold issue. No matter how well conducted the proceedings and judgments of a court are, they become a nullity where it is shown that the court lacks jurisdiction to entertain the action. The substantive jurisdiction of a Court is vested by the 1999 Constitution (as amended), and by statutory provisions, see Elelu-Habeeb & Anor v Hon. Attorney General of the Federation & Ors [2012] NWLR (Pt.1318) 423 (SC); Idemudia v Igbinedion University, Okada & Ors [2015] LPELR-24514 (CA). Section 254C of the 1999 Constitution (Third Alteration Act 2010) and the National Industrial Court Act 2006 confers this court with jurisdiction. The jurisdiction of the court is challenged on the two grounds of non-disclosure of cause of action, and locus standi. It is settled law that in determining whether the claimants’ action discloses a cause of action, the court must restrict its enquiry to the claimants’ claim and the provisions of the law relating to its substantive jurisdiction. In this instance, it is the claimants’ originating summons and the supporting affidavit that are to be considered without recourse to the defendants counter affidavit, see SPDC Nig Ltd v X.M Federal Ltd (2006) LPELR- 3047 (SC) 13; Soba v Abdullahi (2013) LPELR – 22630 (CA); Ajayi v Securities and Exchange Commission [2009] 13 NWLR (Pt.1157) 1; Adeyemi v Opeyori [1976] 6 -10 SC 31.

[52] The gravamen of the claimants’ case as revealed in the supporting affidavit is that the 1^st claimant and its leaders have been embroiled in a labour dispute with the 1^st defendant and the Government of Kaduna State that resulted in a warning strike. Following the industrial action embarked upon by the 1^st claimant on May 16 – 19, 2021, the Federal Government through the Minister of Labor intervened, apprehended the dispute and a conciliation meeting was held while a plan for the peaceful resolution of all the issues was being worked out. The 1^st defendant then established a Judicial Commission of Inquiry (3^rd defendant) to inquire into the warning strike and the actions and events associated with it. The terms of reference of the Commission of Inquiry includes looking into the legality of the strike, and any breach of the relevant laws on trade disputes and essential services. The claimants grievance is that they believe the 1^st defendant lacks the constitutional power to set up a Judicial Commission of Inquiry on matters relating to trade disputes and labour affairs. This is the main question submitted to the court by the claimants. The affidavit evidence shows there the existence of a Labour dispute, a real controversy that cannot be rightly said to disclose no reasonable cause of action. I find that a reasonable cause of action has been disclosed, see Military Administrator Ekiti State v Aladeyelu (2007) 14 NWLR (PT 1055) at 652.

[53] A person is said to have locus standi to sue in an action if he/she is able to show to the satisfaction of the court that his/her civil rights and obligations have been, or are in danger of being infringed, see Abraham Adesanya v President Of Nigeria & Anor (1981) 2 NWLR 358; Owodunni v Registered Trustees of Celestial Church of Christ (2000) 6 SC (Pt.3) 60; (2000) 10 NWLR (Pt 675) 315 at 355; Pacers Multi Dynamics Ltd v. M.V. Dancing Sister (2012) 1 SC (Pt. 1) 75. The 1^st claimant is a central labour organization and the umbrella body for other trade unions, the 2^nd, 3^rd and 4^th claimants are leaders in the union, and they have been in a protracted labour dispute with the 1^st defendant. The claimants allege in the supporting affidavit that the determination of their civil rights and obligation has been entrusted to a Judicial Commission of Inquiry they believe lacks the constitutional authority and vires to do so; and they are apprehensive that their fundamental rights are in danger of being infringed. The claimants deposition show that their civil rights and obligations are likely to be adversely affected by the terms of reference of the 3^rd defendant Judicial Commission of Inquiry. I am satisfied that the claimants have shown that their civil rights and obligations are in danger of being infringed. They must therefore be accorded locus standi; and I so do.

 

[54] This court is not deprived of jurisdiction to entertain and determine this action. I therefore assume jurisdiction in this matter.

 

[55] I will now go on to the preliminary issue raised by the claimants on the validity of the counter affidavit. The counter affidavit is deposed to by Adaeze Agagbo,  a Solicitor in the law firm of counsel to the defendants. At paragraph 5, she states that “I have read through the affidavit in support of the originating summons of the claimants deposed to by Comrade Benson Upah and I know as a fact that the depositions therein are false and misleading.” However, the deponent has admitted the facts in paragraphs 4, 8, 9, 31, 36, 37, 38, 39, 40, 41, 42, and 43 of the supporting affidavit. This is a contradiction to paragraph 5 of her counter affidavit; and I therefore find that the statement “the depositions therein are false and misleading” is not correct. In paragraphs 6 and 35 of the counter affidavit, the deponent has stated that she is not in a position to admit or deny paragraphs 1, 2, 3, 5, 6, 7 and 33 of the supporting affidavit. This is not a proper traverse and has not contradicted those facts in the supporting affidavit, see Messrs Lewis Peat (N.R.I.) Ltd v. A.E. Akhimien (1976) 7 S.C. 167; Akintola v. Solano (1986) NWLR 598, Ola v University Of Ilorin [2014] 15 NWLR 453. It is my view that Paragraphs 42, 43, 45, 52, 53, and 54 of the counter affidavit do not offend the provisions of Section 115 of the Evidence Act.

 

[56] Before I proceed to the questions submitted by the claimants for determination, it is pertinent to state the facts that I find have been established. The 1^st claimant is a central labour organization and an umbrella organization for affiliate trade unions. Its objectives are to protect and promote the rights, well-being, and the interest of all workers, pensioners, and trade unions in Nigeria; and the other claimants are its leaders. It is not in dispute that the 1^st defendant who is the Governor of Kaduna State and the claimants have been embroiled in a protracted labour dispute over its worker policies and disengagement from work of members of the trade unions. There is also no disagreement between the parties that there was an industrial action embarked upon by the 1^st Claimant in Kaduna State on May 16 – 19, 2021. By the provisions of Section 48 of the Trade Dispute Act CAP T8 LFN 2004, and Section 54 of the Trade Unions Act CAP T14 LFN 2004, "trade dispute" means “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.” I find that there exists a trade dispute between the claimants, the Ist defendant, and the Government of Kaduna State.

 

[57] The following facts which are also not disputed show that the Federal Government acting through the Minister of Labor, and pursuant to the powers conferred on him by the provisions of Section 5, and 8 of the Trade Dispute Act apprehended the trade dispute and a conciliation meeting was held between the parties at the conference room of the Minister of Labor. A ten (10) man bi-partite committee comprising six (6) representatives of the State Government and three (3) officials of the 1^st claimant was set up to engage with a view to resolving the trade dispute. A memorandum of understanding was signed between the parties where it was agreed that there will be no further industrial action on the issues and no worker will be victimized on account of his /her participation in the warning strike/industrial action. The committee was expected to revert with the work plan for the peaceful resolution of all issues in contention to the Minister of Labour by 25^th May 2021. The Kaduna State Government (KDSG) then established the 3^rd defendant Judicial Commission of Inquiry into the industrial action and the actions and events associated with it.

 

[58] The Terms of Reference of the Judicial Commission of Inquiry are reproduced as follows:

a) ASCERTAIN the precise chronology of events immediately preceding and during the “warning strike” of 16th to 19th May 2021;

 

b) INQUIRE into whether the NLC can lawfully declare a “warning strike” or any industrial action in any State in the Federal Republic of Nigeria.

 

c) ASCERTAIN whether the NLC or its affiliates complied with the Labour Act, Trade Union Act, Trade Dispute (Essential Services) Act and other laws in declaring and effecting the said “warning strike” in Kaduna State.

 

d) INQUIRE into whether the internal processes and procedures of the NLC at national and sub national levels were complied with in declaring the “warning strike”, in particular with regards to the powers and responsibilities of the affiliate unions in such matters.

 

e) INQUIRE into the actions taken by the NLC and any affiliate union(s) before, during and after the “warning strike” of 16th to 19th May 2021, and determine whether such actions amount to any breach of the Trade Union Act, the Trade Disputes Act, the Trade Disputes (Essential Services) Act, the Miscellaneous Offenses Act, the Quarantine Act, the Public Health Law and Penal Code Law of Kaduna State and other extant laws and regulations pursuant thereto.

 

f) INQUIRE into the roles of various actors before, during and after the said “warning strike”, and determine whether actions and omissions by the following organizations and persons amount to a breach of any extant laws:

 

i. The Nigerian Labour Congress and any affiliate union(s);

ii. The Transmission Company of Nigeria (TCN);

iii. The Kaduna Electricity Distribution Company (KAEDCO);

iv. The Nigeria Railway Corporation (NRC);

v. Federal Airports Authority of Nigeria (FAAN);

vi. Federal Ministry of Labour, Employment and Productivity;

vii. Federal Ministry of Power;

viii. Federal Ministry of Transportation;

ix. Federal Ministry of Aviation;

x. Mr. Ayuba Wabba;

xi. Mr. Joe Ajaero;

xii. Mr. Ayuba Suleiman;

xiii. The Nigeria Police Force; and

xiv. Any other association(s), organization(s) or person(s) that the Commission may consider necessary.

 

g) INQUIRE INTO, AND ASCERTAIN the economic losses incurred by citizens, businesses and the Kaduna State Government as a result of the “warning strike” of the NLC.

 

h) EXAMINE the national security implications and consequences arising from the actions undertaken by the NLC during the “warning strike”, and to invite submissions in these regards from, but not limited to: 

i. The Nigerian Army

ii. The Nigerian Air Force

iii. The Nigeria Police

iv. Federal Ministry of Power

v. Federal Ministry of Transportation

vi. Federal Ministry of Aviation

vii. The Transmission Company of Nigeria (TCN)

viii. The Kaduna Electricity Distribution Company (KAEDCO)

ix. The Nigerian Railway Corporation (NRC)

x. The Federal Airport Authority of Nigeria (FAAN)

xi. The Department of State Security (DSS)

xii. Any other person(s) or organizations deemed necessary by the Commission. 

 

i) INQUIRE INTO AND ASSIGN responsibility for acts of (i) trespass into public and private property, (ii) restraints of citizens’ freedoms, (iii) coercion, assault and trespass in forcing businesses and offices to close, (iv) assault of public officers, and (v) the unlawful closure of hospitals and discharge of patients by the NLC and its affiliates during the “warning strike” of 16th to 19th May 2021.

 

j) RECOMMEND to the State Government, Federal Government and other authorities on the appropriate actions to be taken to avert or curb any repeat of the events of 16th to 19th May 2021.

 

k) RECOMMEND any and all appropriate sanctions to be levied upon any person or organization that may have been found to be responsible for any losses ascertained by this Inquiry, along with compensation payable to person(s) or organizations(s) that suffered due to actions taken during said period of the “warning strike”.

 

l) RECOMMEND any civil remedies, criminal prosecution, policy measures or other actions that may be taken by the Kaduna State Government or recommended to be taken by the Federal Government arising from the “warning strike” of 16th to 19th May, 2021.

 

m) INVITE any individuals, organizations, associations and the general public to bring up memoranda, petitions and other form(s) of presentations that will assist the Commission in addressing these terms of reference.

 

n) SUBMIT a final report not later than 60 days after its first sitting. 

 

“The Judicial Commission of Inquiry shall have the powers conferred by Section 7 of the Commissions of Inquiry Law, including:

 

i. To procure all such evidence, written or oral, and to examine all such persons as witnesses as the commissioners may think it necessary or desirable to procure or examine;

ii. To require the evidence (whether written or oral) of any witness to be made on oath or declaration, such oath or declaration  to be that which could be required of the witness if he were giving evidence in a magistrate’s court;

iii. To summon any person in Nigeria to attend any meeting of the commissioners to give evidence or procure any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession, subject to all just exceptions;

iv. To issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails to do so, and does not excuse such failure to the satisfaction of the commissioners, and to order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his refusal to obey the summons.” Attached hereto and marked Exhibit J is a copy of the legal instrument dated July 6, 2021.

 

[59] The defendants submit that by the provisions Section 2 Commissions of Inquiry Law (Cap 34), Laws of Kaduna State of Nigeria, 1991 the 1^st defendant is empowered to constitute a Judicial Commission of Inquiry; and that nothing in the provisions of sections 6(6) b, 254C, and 2^nd Schedule, Part 1 of the 1999 Constitution (as amended), and Sections 20(1), 33, 35, 36 and 40 of the Trade Disputes Act, inhibits the 1^st defendant from so doing. The claimants concede that by virtue of Section 1 of the Commissions of Inquiry Law (Cap. 34) of Kaduna State the 1^st defendant can competently set up a Judicial Commission of Inquiry but state that the terms of reference must be in strict compliance with those matters the State House of Assembly can legislate upon. That the powers of the State House of Assembly does not extend to labour related matters. Section 2 Commissions of Inquiry Law (Cap 34), Laws of Kaduna State of Nigeria, 1991 is reproduced:

 

The Governor may whenever he shall deem it desirable, issue a Commission appointing one or more commissioners or quorum of them therein mentioned to hold a Commission of Inquiry into the conduct of any officer in the public service of the State or of any chief or the management of any department of the public service or of any local institution or any matter in respect of which in his opinion an inquiry would be for the public welfare. The Governor may appoint a secretary to the commission, who shall perform such duties as the commissioners shall prescribe.

 

The 1^st defendant is empowered by law to set up a Commission of Inquiry which in his opinion would be for public welfare.

 

[60] The claimants’ case as constituted in the originating summons and the legal questions submitted, seeks the court’s determination on the constitutionality of the terms of reference of the 3^rd defendant Judicial Commission of Inquiry (3^rd Defendant); specifically with respect to the terms of reference numbered: a, b, c, d, e, & f by which the 3^rd defendant is to  “ascertain, and inquire” into the legality of the warning strike, compliance with the Labour Act, Trade Union Act, Trade Dispute (Essential Services) Act, internal processes and procedures of the Ist Claimant at national and sub national levels, the roles of various actors before, during and after the industrial action, the Nigerian Labour Congress and any affiliate union(s), Federal Ministry of Labour. Question 1 submitted by the claimants is two fold; whether the 1^st defendant can set up a Judicial Commission of Inquiry to look into matters related to or connected with trade disputes or labour related matters, and whether the 1^st defendant exceeded his constitutional powers in the process. The defendants argue that the terms of reference of the 3^rd defendant is not ultra vires or unconstitutional.

 

[61] By the provisions of Section 1 (1) of the 1999 Constitution (as amended) the supremacy of the Constitution is settled law; the Constitution being the grundnorm. The provisions of the 1999 Constitution (as amended) have binding force on all authorities and persons throughout Nigeria. The Failure of persons and authorities to act in accordance with its provisions, or abide by them render those actions of non-compliance un-constitutional, see A-G Abia State v A-G Federation (2006) 16 NWLR (Pt. 1005) 265 SC, Eze v. Gov Abia State (2010) 15 NWLR (Pt 1216) at 324.

 

[62] I have already found above, at paragraph 60, that there exists a trade dispute between the claimants and the 1^st defendant. A trade dispute is a Labour matter. By the provisions of the Second Schedule Legislative Powers Part 1 of the 1999 Constitution (as amended), Labour is item 34 on the Exclusive Legislative List. It is reproduced thus:

 

34.  Labour, including trade unions, industrial relations; conditions, safety and
welfare of labour; industrial disputes; prescribing a national minimum wage
for the Federation or any part thereof; and industrial arbitration.

 

The Supreme Court in Attorney General of The Federation v Attorney General of Lagos   (2013) LPELR-20974 (SC) stated the purport of the Exclusive Legislative list as follows:

Therefore, apart from the National Assembly, no other legislative assembly whether of state or local Government (if any) can legally and effectively legislate on any matter listed under the Exclusive Legislative List. As for the Concurrent Legislative List, it is clear that both the National and State Assemblies can competently legislate on a matter concurrently having at the back of the legislators’ mind, the operation of the doctrine of covering the field (as summed up earlier).”

 Therefore Labour which is item 34 on the Exclusive Legislative list excludes State Assemblies and shuts out all other considerations such as ‘public welfare’ mentioned in Section 2 Commissions of Inquiry Law (Cap 43) in this instance.

 [63] The 1999 Constitution (Third Alteration Act 2010) has conferred this court with exclusive jurisdiction over labour, employment,trade unions, Industrial relations in Section 254C (1) (a – m). The provision is reproduced thus:

254C-(1) Notwithstanding the provisions of section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –

a.      Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

 

b.      Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;

 

c.      Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto;

 

d.      Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine;

 

e.      Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;

 

f.        Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;

 

g.      Relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;

 

h.      Relating to, connected with or pertaining to the application or interpretation of international labour standards;

 

i.        Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;

 

j.        Relating to the determination of any question as to the interpretation and application of any

 

i.        collective agreement;

 

ii.     Award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;

 

iii.   Award or judgment of the Court;

 

iv.   Term of settlement of any trade dispute;

 

v.      Trade union dispute or employment dispute as may be recorded in a memorandum of settlement;

 

vi.   Trade union constitution, the constitution of an association of employers or any association relating to employment, labour industrial relations or work place;

 

vii. Dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;

 

k.      Relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;

 

l.        Relating to –

 

i.        Appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;

ii.        Appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and

 

iii.      Such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;

 

m.   Relating to or connected with the registration of collective agreements.

 

[64] These subject matters have been restrictively circumscribed by Section 254C (1) of the 1999 Constitution. There can be no doubt from the terms of reference of the 3^rd defendant Judicial Commission of Inquiry particularly a, b, c, d, e, & f, that these are subject matters donated by the 1999 Constitution exclusively to this court and not to any other authority, person(s), or commission. The terms of reference attempt to usurp the exclusive constitutional adjudicatory role and function of this court, the National Industrial Court. A court is to guard the jurisdiction conferred on it by the Constitution and other laws jealously and must not be eager to divest itself of its jurisdiction, see Sonnar (Nig) Ltd & Anor v Partenreedri M.S. Norwind & Anor (1987) 4 NWLR (Pt 66) 545 Para B-C; Adhekegba v Minister of Defence (2013) 17 NWLR 126. It is my considered view that the terms of reference of the 3^rd defendant Judicial Commission of Inquiry are the powers donated exclusively to this court, National Industrial Court of Nigeria by the 1999 Constitution (Third Alteration Act 2010); and this does interfere with the jurisdiction conferred by Section 254C (1) (a-m) of the 1999 Constitution on this court. It cannot be in the public welfare or interest for the 3^rd defendant to have terms of reference that usurp the powers of this court.

 

[65] Section 6 (6) (b) of the 1999 Constitution provides that the judicial powers vested in accordance with this section shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. It is therefore my humble view that the claimants are right in rushing to the court to raise this challenge over the attempt of the 1^st and 3^rd defendants to usurp the powers donated to this court by the 1999 Constitution (Third Alteration Act 2010). The cases Bajowa v FRN; Tao And Sons Industries Ltd v Governor Of Oyo State; Ntung & Ors v Longkwang cited by the defendants are not on all fours with this case and are inapposite. The decision of a court must always be considered in the light of its own peculiar facts or circumstances; a case is only an authority for what it decides and nothing more, see Thomas v Federal Judicial Service Commission (2016) LPELR – 48124 (SC), Skye Bank Plc. & Akinpeju (2010) 9 NWLR (Pt 1198) 179. It is my considered view that it cannot be the law, neither can it be right for the claimants to first submit to the questionable authority and terms of reference of the 3^rd defendant Judicial Commission of Inquiry, wait for its report to be accepted or rejected by the 1^st defendant, and thereafter raise a fundamental challenge after its rights have been trampled upon. It is the law that equity aids the vigilant and not the indolent. The claimants have simply been vigilant in promptly raising this challenge.

[66] The 3^rd defendant Judicial Commission of Inquiry has been constituted to ‘ascertain and inquire’ into a trade dispute already apprehended by the Hon Minister of Labour; a matter in the Exclusive Legislative List. Section 33 (1) & (2) of the Trade Dispute Act (TDA) is reproduced below provides thus:

33. Power to appoint board of inquiry

(1) Where any trade dispute exists or is apprehended, the Minister may cause inquiry to be made into the causes and circumstances of the dispute and, if he thinks fit, may refer any matter appearing to him to be connected with or relevant to the dispute to a board of inquiry appointed for the purpose by the Minister; and the board shall inquire into the matter referred to it and report thereon to the Minister.

(2) The Minister may refer any other matter connected with industrial conditions in Nigeria to a board of inquiry appointed for the purpose by the Minster; and the board shall inquire into the matter referred to it and report thereon to the Minister.

[67] Section 36 of the TDA also makes provisions for the powers of the board of inquiry. By these provisions, it is certain that the intendment of the National Assembly is for the Minister of Labour to cause an inquiry to be made where the trade dispute has been apprehended. It is not the role or duty of the 1^st and 3^rd Defendants, the matter being one on the Exclusive Legislative list, see Attorney General of The Federation v Attorney General of Lagos supra. I find that the constitution of the 3^rd Defendant Judicial Commission of Inquiry with terms of reference to inquire into the trade dispute, and the warning strike by the claimants amounts to a usurpation of the constitutional powers of the Federal Government and the National Assembly. To that extent, I rule that the Judicial Commission of Inquiry is illegal, unconstitutional, null and void and of no effect, Sunday Ainabebholo v Edo State University Workers Farmers Multipupose Co-Operative Society (2015) LPELR-24573 (CA), Dr. Taiwo Oloruntoba-Ojo & Ors v Prof. Shuaib O. Abdul-Raheem & Ors (2009) LPELR-2596 (SC).

[68] Section 40 of the Trade Dispute Act makes provision for State trade dispute as follows:

40. Application of Act to State trade disputes

(1) In this section, "State trade dispute" means a trade dispute between anyone of the following authorities and workers employed by it, that is to say-

(a) the Governor of a State;

(b) a local authority in a State;

(c) the corporation, council, board or committee established by or under any law (including an edict of the Governor of a State); and

 (2) This Act applies to a State trade dispute as it applies to other trade disputes with the modifications mentioned in the following subsections of this section.

(3) The Minister may, with the consent of the Governor of a State and in respect of State trade disputes arising in that State, by order published in the Federal Gazette delegate either generally or in respect of any particular State trade dispute, his powers under this Act to the appropriate State Commissioner.

 (4) While an order made under subsection (3) of this section is in force-

(a) the functions of the Minister under this Act shall in the case of a State trade dispute be discharged by the appropriate State Commissioner;

 (d) a board of enquiry for the purpose of a State trade dispute may be appointed by the Governor of the State concerned and shall be constituted in the same manner as a board of enquiry appointed under section 33 of this Act and shall enquire into the matter or matters referred to it and report thereon to the Governor of the State.

[69] The trade dispute between the claimants and the 1^st defendant is a State trade dispute. There is no evidence that the Minister published in the Federal Gazette that he had delegated his powers under the Act to the appropriate State Commissioner. This is a pre-condition for delegation of the Minister’s powers and the appointment of a board of enquiry. There was no delegation of powers. Consequently, and in the absence of delegation of the powers of the Minister, the constitution of the 3^rd defendant is unconstitutional as it undermines the supremacy of the Constitution on Labour matters reserved for the Exclusive Legislative List. The 1^st defendant did not validly exercise his powers under section 40 (4) (d). Again, it cannot be in the public welfare or interest for the 1^st defendant to usurp the powers of the Hon minister of Labour where he has not delegated his powers under the Act to the appropriate State Commissioner.

[70] The 2^nd question submitted for determination bothers on the principle of natural justice. The twin pillars of fair hearing are audi alterem partem  (hear the other side), and nemo judex in causa sua that requires that a person should not be a judge in his own cause, see Aiyetan v. The Nigerian Institute Of Oil Palm Research (1987) LPELR-275 (SC). The test of fair hearing is that of a reasonable man. In this instance, it is not in dispute that the claimants and the 1^st defendant, the Governor of Kaduna State and referred to in paragraph 9 of the counter affidavit as the Chief Executive of Kaduna State are the parties to the trade dispute. The 1^st defendant is a party interested in the dispute. It is therefore the pillar nemo judex in causa sua that the court is particularly concerned with. The 1^st defendant established the 3^rd defendant Judicial Commission of Inquiry into the ‘actions and conduct of persons and organizations in relation to the warning strike’. He appointed its members and secretary and the final report is to be submitted to the 1^st Defendant.

[71] The thoughts and impression of the reasonable man will be that the 1^st defendant cannot be expected to carry out an unbiased inquiry on himself and his Government. That will be tantamount to him being a Judge in his own cause, which will be a violent breach of the provisions of Section 36 of the 1999 Constitution (as amended), see Adhekegba v Minister of Defence [2013] 17 NWLR 126. The 1^st defendant cannot be a judge in his own case. The 3^rd Defendant Judicial Commission of Inquiry has not commenced sitting and so whether or not the principle of audi alterem partem is likely to be violated is premature at this stage.

[72] The 3^rd question submitted is whether the resolution and determination of a trade dispute can be validly done outside the clear provisions of the Trade Disputes Act. The TDA has provided in Part 1 the statutory procedure for settling trade disputes. It includes mediation, conciliation, arbitration and adjudication. The processes provided in the TDA for resolution of collective trade disputes as in this instance are mandatory and cannot be wished away by either of the parties. To these may be added negotiation, collective bargaining, and industrial action. In this instance, the Minister of Labour having apprehended the trade dispute by a conciliation meeting, the 1^st defendant is required to follow through the due process of statutory resolution provided in the Trade Dispute Act which had already been activated and commenced. See Corporate Affairs Commission. v AUPCTRE [2004] 1 NLLR (Pt 1) 1 at 26 Para C-F The appropriate thing for the defendants to do in this instance is for to comply with and exhaust the statutory process for resolution of trade disputes. 

[73] Following from all of the above, I hereby Declare and make the following Orders:

1.      I Declare that by the combined reading of the provisions of Sections 6 (6) (B), 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 and the provisions of 2^nd Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 20 (1) 33, 35, 36 and 40 of the Trade Disputes Act, the 1^st Defendant is not invested with the Constitutional power to establish or constitute a Judicial Commission of Inquiry into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it.

 

2.      I Declare that by the combined reading of the provisions of Sections 6 (6) (B), 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 and the provisions of 2^nd Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 20 (1), 33, 35, 36 and 40 of the Trade Disputes Act, the Judicial Commission of Inquiry established by the 1^st Defendant is unconstitutional, ultra vires, null and void and of no effect whatsoever.

 

3.      I Declare that the subject matter of the Terms of Reference of the Judicial Commission of Inquiry being a trade dispute, same is a clear usurpation of the powers of the National Industrial Court donated by Section 254C of the 1999 Constitution (as amended) and reinforced by Part IV Sections 35 and 36 of the Trade Dispute Act.

 

4.      I Declare that the Judicial Commission of Inquiry set up by the 1^st Defendant on July 6, 2021 to inter alia conduct inquiry into the actions and conduct of persons and organizations in relation to the 16^th to 19^th May, 2021 warning strike organized by the 1^st Claimant is unconstitutional, null and void and ultra vires the powers of the 1^st Defendant herein.

 

5.      I Declare that matters related to, or connected with any labour, employment, trade unions, industrial relations are circumscribed by Section 254C of the Constitution and only the National Industrial Court of Nigeria (NICN) has jurisdiction to exercise adjudicatory role/function in labour-related matters, to the exclusion of any other Court or tribunal.

 

6.      I Declare that all labour-related matters, including trade unions, industrial relations; conditions, safety and welfare of labour; industrial disputes; prescribing a minimum wage for the Federation or any part thereof; and industrial arbitrations are under the Exclusive Legislative List in the Second Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

 

7.      I Declare that the setting up of a Judicial Commission of Inquiry by the 1^st Defendant to investigate a trade dispute between it and the Claimants violates the principle of natural justice.

 

8.      I Declare that in view of the Terms of Reference of the Judicial Commission of Inquiry set up by the 1^st Defendant, the Judicial Commission of Inquiry as set up by the 1^stDefendant is unconstitutional.

 

9.         An Order Of Mandatory Injunction prohibiting the Defendants from setting up a Judicial Commission of Inquiry into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it and to prohibit the Judicial Commission of Inquiry purportedly established by the Defendants from carrying out its unconstitutional purpose as contained in the Terms of Reference and the instrument establishing the Judicial Commission of Inquiry.

 

10.    An Order Of Injunction prohibiting the Judicial Commission of Inquiry purportedly established by the Defendants into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it from acting or further acting or carrying out its mandate as contained in the 14 Terms of Reference and the Instrument establishing the said Judicial Commission of Enquiry.

 

11.    An Order Of Injunction restraining the Judicial Commission of Inquiry purportedly established by the defendants into the Nigerian Labour Congress warning strike of 16^th to 19^th May, 2021 in Kaduna State and the actions and events associated with it from acting or further acting or carrying out its mandate as contained in the 14 Terms of Reference and the Instrument establishing the said Judicial Commission of Enquiry.

 

12.    The 1^st Defendant is to comply fully with the provisions of Part 1 of the Trade Disputes Act in the resolution of the trade dispute with the Nigerian Labour Congress that resulted in the warning strike of 16^th to 19^th May, 2021 in Kaduna State.

 

13.    Costs of N500,000.00 awarded the Claimants.

 

Judgement is entered accordingly.

 

 

                                                            ____________________________

                                                            Hon Justice O.A.Obaseki-Osaghae