10/10/10.

Chief Emeka Wogu
Hon Minister of Labour,
2nd Floor (257-237), Block4A
New Federal Secretariat Complex,
Shehu Shagari Way
Central Area, Abuja
Sir,
RE: LEGAL OPINION ON NATIONAL UNION OF ELECTRICITY EMPLOYESS (NUEE) ET AL VS. BUREAU OF PUBLIC ENTERPRISES (BPE) SC.62/2004.
I am providing this legal opinion in response to your request during the last meeting which you had with the Labour Committee of the Presidential Taskforce on power (PTFP). For ease of reading, the opinion is broken into 6 headings; (1) Facts of the Case (2) Decision of the court (3) Legal implication of NUEE’s action of embarking on, or even threatening to embark on strike (4) Immediate action that Government should take (5) The issue of Sanction by International Labour Organization(6) Conclusion.
1. FACTS:
The facts of the case are very simple. Precisely, BPE went to Court in January 2002, to challenge the NUEE’s alleged constitutional right to go on strike in protest against, and in challenge of the BPE’s power to execute the Power Sector Reform process which was then contained in National Electric Power Policy but now delineated in the Electric Power Sector Reform Act (EPSRA) 2005. It is pertinent to note here, that the strike by NUEE on August 25, 2010 as well as their continued threat of strike action was based on their opposition to the implementation of the Electric Power Sector Reform Act which entails the privatization of PHCN.
The BPE’s prayers before the court were as follows:
(i) “(1) A declaration to the effect that …..Neither the National Union of Electricity Employees, nor any of its members, they together being collectively and in combination, a body of persons engaged in the provision of an essential service within the meaning of Section 47 of the Trade Disputes Act and of Section 9(1) of the Trade Disputes (Essential services) Act, Cap 432 and Cap 433 respectively of the Laws of the Federation 1990, is entitled either to contrive, or the declare, or to embark upon, or to proceed with, or to implement and carry into subsistence and effect any strike action ….. without first pursuing, fulfilling, exhausting and otherwise ensuring strict compliance with and faithful adherence to all the strict mandatory procedures/conditions precedent prescribed by all the Federal Legislation currently prevailing and in force……before they may be at liberty, lawfully to declare and embark upon any prospective or threatened strike action of any sort.

(ii) “(2) An order of perpetual injunction restraining Mr. Precious kiri-Kalio, the 2nd Defendant above Qua General Secretary and also restraining all other functionaries or persons whomsoever who either occupy or at any other previous relevant time have occupied either offices, portfolios or positions of authority/responsibility on or within the executive organs of the National Union of Electricity Employees the first (1st) Defendant sued from giving any further instructions, or issuing any further directives, or passing and implementing any further resolutions or from effectuating any other measures and otherwise from taking any steps, or any further steps of all and any kinds to cause ,or to instigate, or to compel, encourage and persuade or in any other manner to enable all or any members of the National Union of Electricity Employees anywhere throughout Nigeria to carry the threat of proceeding with and embarking upon a nation-wide strike from Monday 7th January 2002 or as from any other earlier or later date into implementation, force and effect unless and until after they have first pursued fulfilled and exhausted and otherwise ensured strict compliance with and faithful adherence to all diverse Federal Legislations currently prevailing and in force in regulation of the Lawful conduct of ‘essential service’ Trade Union or alternatively unless and until otherwise directed by specific Court Order. (underlining mine for emphasis)

(iii) “(3) A further Order of perpetual injunction directed against all members of and against every member of the National Union of Electricity Employees the first Defendant sued in these proceedings wherever in Nigeria such member or members of the within named Union may presently be, restraining them all from acting upon or from acting in compliance with, or from acting in obedience to any instructions ,directives or resolution given, issued, passed or taken for any purpose or objectives that do

(iv) or may pertain to ,or that do or may be connected with ay prospective strike action with the consequential effect of withholding or withdrawing them from the performance of their usual daily job, duties and likewise restraining them all by any other means, whatsoever from carrying the threat of proceeding with and embarking upon a nation-wide strike action…..unless and until directed by specific court order.”


2. DECISION OF THE COURT.
The court of first instance (trial court) struck out the case on the ground that it had no jurisdiction to entertain the action. Upon appeal to the Court of Appeal Lagos, the Appeal court reversed the decision of the trial court, granted the relief sought by BPE and ordered the perpetual injunction as requested. The Supreme Court upheld the decision of the Court of Appeal. The Supreme Court categorically found that “the instant disagreement as to privatization of NEPA cannot constitute a trade dispute between the parties”.
The most telling part of the Supreme Court judgment is contained at pages 42 – 43 of the judgment and I would rather prefer to reproduce same verbatim:
“Coming to the instant matter, the 1st defendant/appellant is more or less the sole provider of Electric Power a crucial essential service to the whole nation. The chaos and total confusion talkless of the economic damage that would be inflicted on the people and the nation as a whole should the 1st defendant/appellant as the sole provider of Electric Power proceeded on an industrial action/strike could only be imagined. Such an action if not checkmated timorously would bring the entire nation to its economic knees and standstill. To allow that stage to be reached would, with respect, amount to unpardonable naivety. It is in this light that the Trade Disputes(Essential Services ) Act had to be promulgated to empower the President to proscribe any Trade Unions or Associations whose members have embarked in threatening industrial unrest/strike actions that would otherwise tend to and thus disrupt the running of any of the essential services mentioned in the said Act.” (Underlining added by me for emphasis.)
3. LEGAL IMPLICATION OF NUEE’S ACTION OF EMBARKING ON, OR EVEN THREATENING TO EMBARK ON STRIKE.
Once an injunction is issued, it must be obeyed unless and until such an injunction is discharged. The injunction was issued by the Supreme Court(the highest court of the nation) against all members of NUEE and the General secretary of NUEE from carrying out “the threat of proceeding with and embarking upon a nation-wide strike from Monday 7th January 2002 or as from any other earlier or later date into implementation, force and effect unless and until after they have first pursued fulfilled and exhausted and otherwise ensured strict compliance with and faithful adherence to all diverse Federal Legislations currently prevailing and in force in regulation of the Lawful conduct of ‘essential service’ Trade Union or alternatively unless and until otherwise directed by specific Court Order.” The perpetual injunction is binding upon the current general secretary of NUEE, Mr. Joe Ajaero as well as all members of NUEE. The said injunction is still in full force as no “specific Court Order” has directed otherwise.
When NUEE embarked upon nation-wide strike on August 25, 2010 (eve of the Power Road Map launch in Lagos) they violated the perpetual injunction for the following reasons:
(a.) Section 48 of the Trade Dispute Act, Cap T8 (the Act) defines “trade dispute” to mean 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 condition of work of any person”

(b.) The Supreme Court found that disagreement regarding Electric Sector Reform and Privatization of PHCN does not constitute a trade dispute. See page 27 of the judgment.

(c.) Assuming arguando, that there is a trade dispute, Sections 4, 6,7,8,9, 17 and 33 of the Act prescribed a detailed procedure that must be complied with before resorting to strike. Where the detailed procedure is complied with but the dispute still remains unresolved, which is unlikely, there is a requirement of a notice of at least 15 days to be given by workers in essential services before ceasing work. Failure to abide by this requirement carries a punishment of imprisonment for 6 months or fine or both.

(d.) It is undoubted that NUEE did not comply with any of required procedures before embarking on strike and continuing to threaten strike action. It must be noted here that the sections above referred to gave the Ministers of Labour wide powers to drive the process of complying with the procedures which are the conditions precedent to any strike.
The appropriate thing to do would have been for the Chief Law officer of the Federation, the Attorney General, (AG) to institute a contempt proceeding against the General Secretary of NUEE and other relevant officers. The AG however did not take any action until NUEE purged itself of the contempt by calling off the strike. However, because the perpetual injunction prevented NUEE from threat of proceeding with and embarking upon nation-wide strike, NUEE is presently in violation of the injunction to the extent that it has continue to issue threats of embarking upon nation-wide strike. Worse still is the fact that the reason for the threatened nation-wide strike is NUEE opposition to the implementation of the EPSRA which necessitates the privatization of PHCN, formerly NEPA.


4. IMMEDIATE ACTION THAT GOVERNMENT SHOULD TAKE.
The AG should without delay, issue a strong statement warning the General Secretary of NUEE, all relevant officers and all members of NUEE to desist forthwith ,from any further violation of the outstanding perpetual injunction unless and until they have complied with the strict conditions precedent.
Such warning must make it clear that the highest court of the nation has pronounced that the disagreement as to privatization of PHCN, or any other public utility company for that matter, does not constitute a trade dispute and therefore, cannot be the basis for threatening or embarking upon strike. It obvious that the Mr. Ajaero does not know that his action constitutes a violation of law or that he knows but is proceeding because he believes that the government has slept on its rights.
The Minister of Labour should invoke his right under the Act especially sections 4 through 9, and call the NUEE and its leadership to order and ensure that they comply with all the relevant laws as strict conditions precedent to embarking on industrial action.
5. THE ISSUE OF SANCTION BY INTERNATIONAL LABOUR ORGANIZATION
The International Labour Organization (ILO) is specialized agency of the United Nations which deals with labour issues. Membership of ILO is thus limited to nation-states. ILO is thus a creature of international law.
Nigeria is member of ILO but Nigeria is a sovereign state and as such, under the principles of Sovereignty in International law, ILO cannot interfere in the domestic affairs of Nigeria as sovereign state. Law making and law enforcement of any nation is a domestic affair. In the instant case, ensuring compliance with the judgment of the highest court of Nigeria is, without doubt, a domestic affair which is entirely within the purvey of municipal law of Nigeria.
The ILO has a constitution that is binding on all her member nations. In case of violation of the constitution there are well set out procedures of dealing with such issues without interfering with the domestic affairs of any nation.
6. CONCLUSION:
The present Federal Government of Nigeria has made power delivery its priority. It has come to terms with the fact that the realization of its dream, as far as power delivery is concerned, requires implementation of the Electric Power Sector Reform Act to the letter and it has demonstrated that it has the will to carry it through. It is a fact of common knowledge that PHCN as presently constituted, is reeking with corruption and that no meaningful progress can be made without privatizing PHCN. It is obvious also that in order to continue its culture of corruption, at the expense of giving light to the masses of Nigeria, some persons who stand to benefit from the status quo are hell-bent on frustrating the federal government’s effort.
Section 1 of the TRADE DISPUTE (ESSENTIAL SERVICES) Act Cap. T9, Laws of the Federation of Nigeria, 2004 empowers the President to proscribe any trade union or association which is employed in essential services that engage in acts calculated to disrupt the economy or act calculated to obstruct or disrupt the smooth running of any essential service.
Section 2 of the above referred Act prescribes a fine of up to N10, 000.00 and or imprisonment for a term of six months for any person found guilty of an offence under subsection 1.
The federal government should pay serious attention to the pronouncement of the Supreme Court: “The chaos and total confusion let alone of the economic damage that would be inflicted on the people and the nation as a whole should the 1st defendant/appellant as the sole provider of Electric Power proceeded on an industrial action/strike could only be imagined. Such an action if not checkmated timorously would bring the entire nation to its economic knees and standstill. To allow that stage to be reached would, with respect, amount to unpardonable naivety. It is in this light that the Trade Disputes(Essential Services ) Act had to be promulgated to empower the President to proscribe any Trade Unions or Associations whose members have embarked in threatening industrial unrest/strike actions that would otherwise tend to and thus disrupt the running of any of the essential services mentioned in the said Act.”(underlining added by me for emphasis.)
It is likely that if the Attorney General of the federation issues a warning in line with my suggestions in “4”above those who are bent on disrupting the Power Sector Reform will understand that their game is up and hence cease and desist. If however they are so foolhardy as to persist in their nefarious acts, the big hammer, proscription, should be wielded.

Very truly yours,

__________________________________________________
Hon. Nick O. Agbo Esq. LLM (Labour Advisor)
SPA to Prof. Bart Nnaji, FAS, FAEng, NNOM, CON
{Special Adviser to the President on Power,
Chairman, Presidential Task Force on Power (PTFP)}