ANAMBRA STATE JUSUN LINGERING STRIKE, EXECUTIVE GRANDSTANDING, SUBVERSION OF THE NIGERIAN CONSTITUTION AND CONTEMPT OF THE PEOPLE: GOVERNOR OBIANO MUST DRAW HARD LESSONS FROM HISTORY

“The Courts are available to accommodate all sorts of grievances that are justiciable in law….. In our democracy all the governments of this country as well as organizations and individuals must kowtow to the due process of the law and this they can vindicate by resorting to the Courts for redress in the event of any grievance”
….. Tobi, J.S.C. in A-G V. A-G.F (2004-2007) 3 LLRN 1131

BACKGROUND FACTS:

In setting out to express deep thoughts on the issues mapped out for consideration as suggested by the title of this article, it is pertinent to have a recourse to and set down the facts forming the fulcrum and spoke upon which our sober reflection hinges for effective analysis and seamless appreciation of our larger subject matter of discourse.

Not too long ago in this country, a Federal High Court sitting in Abuja, at the instance of an accomplished and well-respected Senior Advocate of Nigeria, Mr. Olisa Agbakoba, delivered a judgment wherein relevant provisions of the amended 1999 Constitution relating to and encircling financial autonomy of the judiciary were interpreted, upheld and vindicated resulting in the crystallization of an unmovable duty on the shoulders of both the Federal and State governments to ensure that all monies accruable to the judiciary flows directly into the pulse and for the utilization of the judiciary being a first line charge on the Consolidated Revenue Fund.

My reader would recall that it was in a bid to have this Federal High Court judgment implemented , that the Judiciary Staff Union of Nigeria (JUSUN) embarked on a nationwide paralyzing strike to prevail on both the Federal Executive and State Chief Executives to the obey the judgment of the Court. The strike was so debilitating that it nearly threatened the smooth conduct of the 2015 general elections as pre-election matters before different courts across the country were stalled and the fate of the litigants suspended on a balance. To save the ship of the State from apparent capsizing, the Federal Government immediately implemented the Federal High Court judgment in issue as it related to all Federal Courts across the land and that led to the doors of the Federal Courts being thrown open once again for numerous litigants. Different State Branches of the JUSUN had to engage their respective State Governors head on for the enforcement of the judgment of the Federal High Court at the State level. After months of rat and mouse chase, many State Governors hesitantly conceded to JUSUN demand and implemented the judgment of the Federal High Court, Anambra State inclusive. Suffice it to emphasis that the judgment of the Federal High Court which is at the root of JUSUN industrial unrest has never been challenged or appealed against by either the Federal Government or any State Government and to which extent the judgment is unquestionably binding as it is subsisting and therefore entitled to complete obedience.

Now in Anambra State, following the recruitment of more staff at the twilight of Peter Obi’s administration, Governor Obiano reached an understanding, upon assuming office, on the modalities of continuous implementation of the court judgment in the light of the additional workforce absorbed in the judiciary of the State. Both parties came to a common ground, supposedly in good faith. When the time came for the Governor to walk the talk as agreed, he started shifting the goalpost at the middle of the game. The Governor started singing a new song. He started engaging the JUSUN in a marathon of meetings, buying more time obviously. On different occasions, warning strikes were embarked upon by the JUSUN to secure the implementation of their agreement with Mr. Governor without success. Those warning strikes were always called off by the JUSUN Leadership at the behest of the Governor who would come with tantalizing and rosy promises that never translated to the desired result of the JUSUN at the end of the day.

Now, by September, 2015, JUSUN have had it up to their neck. They are now tired and could no longer wait for the godot that may never come. Their hope in the Governor’s promises has waned. Haven lost confidence in the Governor’s empty promises, they resorted to the last option available to an employee. They took their destiny into their own hands, called the Governor’s bluff and downed tools. Since then, the doors of our Temples of Justice have remained under lock and key. That is where we are at the moment. Between Mr. Governor and the striking JUSUN, who brinks first? Who is right, who is wrong?

OBJECTIVE OF THIS WRITE-UP:

The objective of this reflection is to examine the legal consequences of the strike action of Anambra JUSUN, the attitude of the Governor towards the striking workers, the grave consequences of the grandstanding and brinkmanship of Mr. Governor. Drawing inspiration from many superior judicial authorities, I will demonstrate how Governor Obiano’s (in)actions in this matter in their aggregate have amounted to a corrosive subversion of the Nigerian Constitution and brazen contempt of the people. I will emphasis on the need for Mr. Governor to avoid falling victim of the law of unintended consequences. Before I go further, let me quickly announce to my reader that I am a full citizen of Anambra State of Nigeria lest mischievous elements label me a meddlesome interloper or a mere busy body.

THE LEGAL IMPLICATIONS OF THE JUSUN STRIKE ACTION:

Learned scholars are largely in agreement that industrial action has wide-ranging legal implications of both an individual and collective nature. Under the law of contract, strike action (which is the total withdrawal of labour) results in a fundamental breach of an employment. [Refer to Simmons v, Hoover (1977) 1 CR 61 @ P. 76]. On this repudiatory breach, the employer may lawfully summarily dismiss the employee at common law without notice, sue for the loss arising from this breach of contract, or refuse to pay any further wages until the employee returns to work. [Refer generally to NCB V. Galley (1958) 1 WLR 16; WihiszynskiV.London Borough of Tower Hamlets (1989) 1 RLR 259].However, this conventional view has been successfully challenged by no less a person than Lord Denning in the case of Morgan V. Fry (1968) 2 Q B 710. Where strike notice is given, the contract of employment is not terminated, but it is suspended and revives once it is over. The basis of this proposition, according to Lord Denning, is that it must be implied in a trade dispute that ordinarily both sides do not wish the legal relationship to be terminated. Employees take strike action to gain an alteration, and not termination of the contract.As neither side in the strike expects to be broken off at the end of the strike, the true intention of the parties is to suspend the contract for the period of the strike. The corollary of the foregoing extrapolations strengthens the established postulation that it is within the legal rights of employees to resort to strike action in deserving cases in order to force a fair deal out of their employee’s hand as it is now the case with the JUSUN in Anambra State.

THE GOVERNOR’S ATTITUDE AND ITS CONSEQUENCES:

The attitude of Governor Obiano in the present case is nothing short of grandstanding and braggadocio. The refusal, neglect and or failure of Governor Obiano-led Government to give effect to the agreement it entered into with the JUSUN (Anambra State Branch) carries a heavy implication deeper than apparent on the surface. It is indeed, in the clearest of language, a clear flouting or brazen disobedience of a subsisting Order/Judgment handed down by the Federal High Court that must at all times command and enjoy unquestionable obedience. It is that Federal High Court Judgment that is basis for JUSUN agitation leading to the agreement it eventually signed with Anambra Government which Governor Obiano is now reneging on.

EFFECTS OF DISOBEYING COURT ORDER(S) CONSIDERED:

In the decided case of Onwualu V. Mokwe (1991) 1 NWLR (pt. 585) 146 @ 154-155, the Nigerian Court of Appeal counseled thus;

“It is a well settled law that an order of the court must be obeyed right or wrong, valid or invalid. It does not lie in the mouth of a litigant to say ‘I will not obey such and such an order because it is wrong or invalid’. Such a stance by the Courts is necessary in order to protect the integrity of the Courts. There is a line of decisions which support the above proposition.”

In the case of Balonwu V. Obi (2007-2010) 4 LLRN 1789 which arose from Anambra State, the Court of Appeal expanded the frontiers of this principle thus;

“An order of Court whether valid or not must be obeyed until it is set aside. An order of Court must be obeyed as long as it is subsisting by all no matter how lowly or highly placed in the society… This is what the rule of law is all about hence the Courts have always stressed the need for obedience of court orders.”

Governor Willie Obiano has blatantly refused to obey a subsisting Court order/judgment implications of which are very dangerous as admirably captured by the Court of Appeal in this lucid literature;

“Obeying court orders is both a legal and moral obligation but you find that court orders are toyed with both by lawyers and litigating public. Indeed for the politicians, the rule of law is not existing until it suits their purpose, and it is only then it is observed to the letter. Without a strict adherence to the rule of law our nascent democracy and indeed our Constitution will only be worth the paper on which it is written. What makes a great country is adherence to the rule of law. Even in hell, there is order and discipline.”

OTHER CONSEQUENCES OF DISOBEDIANCE OF COURT ORDER:

The persistent refusal of Governor Willie Obiano to comply with subsistingCourtOrder/Judgment of the Federal High Court has sent the JUSUN workers home thereby effectively putting the doors of our Courts under firm lock and key. Part of the ‘wide-ranging’ consequences of JUSUN industrial action includes but not limited to that Governor Obiano;
➢ Is depriving the JUSUN workers of their legitimate earning;
➢ Is pouring contempt on the workers who voted him into office by shutting down their source of livelihood rendering them impoverished thereby;
➢ Is rumpling the Constitution of the Federal Republic of Nigeria which he has sworn an oath to protect and defend to the best of his abilities;
➢ Is polluting on the sacred order/judgment of the Federal High Court;
➢ Is destroying the economy of the State by depriving the investing and commercial public the inevitable platforms of enforcing commercial transactions/contracts;
➢ Is encouraging the rise of anarchy, anomy and lawlessness precipitating disaster thereby as the machineries of Administration of criminal justice which is the vehicle for bringing miscreants to justice has been locked down;
➢ Is rendering legal practitioners jobless and their families distraught as the sole place of business is under lock and key;
The list can go on and on as it is lengthy to say the least all of which carry catastrophic implications in a democratic set-up like ours.

THE REASON OF THE GOVERNOR FOR FAILING TO HONOUR GOVERNMENT’S OBLIGATION TO JUSUN WORKERS IS PATENTLY UNREASONABLE AND NONESENSICAL:

In one of the meetings he held with JUSUN Leadership, Governor Obiano had pleaded non-availability of funds as a limitation on the government’s ability to meet its obligation to the striking workers. This argument being shoved in the face of distraught workers is not only patently untenable but also most unworthy of a great State like Anambra State. It is indeed difficult, if not well-nigh impossible, to accept an argument purporting to suggest that Anambra State is poor as not to pay even workers’ salaries. It flies in the face of reason and defies financial intelligence even as it constitutes a huge insult to the collective intelligence of the citizenry. In advancing such hackneyed argument, the Governor has gone overboard to stand logic on its head. His preposterous argument offends the sensibilities of financial experts as the State’s existing financial records give a lie to his assertions. In overlooking the deafening calls from the citizens for the State’s Bank Accounts to be published, Governor Obiano has knocked the bottom off his argument, unwittingly though. At pages 30 and 31 of the NATION NEWSPAPER OF TUESDAY, DECEMBER 1, 2015, the former Governor of the State, through his then Information Commissioner, Chief Joe-Martins Uzodike, released the State’s Statement of Account as at the time Chief Peter Obi handed over to Governor Obiano on the 17th March, 2014. The document is titled “DETAILS OF CASH/INVESTMENTS LEFT BY FORMER GOVERNOR PETER OBI”. According to the published records, the worth of all the cash and investments bequeathed to Governor Obiano stands at the tune of 117 Billion naira and some fractions. Prior to this publication, there has been loud calls from different quarters on the Government of the day in Awka to publish the State’s Account so that the citizens will have an objective basis to compare notes and contrast so as to come to an informed knowledge of who is ripping them off and shortchanging them thereby. The discernible unwillingness of Governor Obiano to heed these crucial and determinative calls by the citizens has demobilized his argument of impecuniosity which for long has remained the heaviest stone against which he leaned to deny the workers’ just demand. That argument is now impotent. The Governor who happens to be a chartered Accountant and acclaimed Auditor of repute should appreciate better the place of accountability in the sphere of corporate finances and corporate governance as a whole. That it is now difficult for him to exemplify the principles of his profession as a Governor is rather puzzling. What are obviously at play here smacks of a combination of disrespect for the rule of law, crass incompetence, and disdain for a people, scandalous unaccountability, burgeoning corruption and elevated impunity.
Let it be said here loud and clear, that there was never a time the framers of our Constitution contemplated a State’s Judiciary (one arm of government) being shut down under whatever disguise. It is an aberration in a democracy. By this singular ill-advised grandstanding, Governor Obiano has unilaterally suspended a portion of the Nigerian Constitution touching on the establishment and functionality of our Courts and abridging the Constitutionally-vested rights of the citizens to approach the Courts for the ventilation of their grievances thereby. On this score alone, the governor has goofed. This attitude of Governor Obiano in all of this is totally condemnable and stands deprecated. Condemning this kind of repugnant conduct, the Nigerian Court of Appeal came to this sad lamentation;

“The Constitution of our great country, Nigeria is observed more by payment of lip service to its contents than in upholding same. The breach of the Constitution by all and sundry more especially by our leaders is appalling, and this has led to lack of good governance. Our leaders have abandoned the sacred duty of upholding the Constitution of Nigeria, 1999, which they swore to uphold and instead, have subjected the Constitution to ridicule.It is this ridiculing of our laws and Constitution in particular that led to this unwholesome spate of litigations, impeachments, corruption and indeed dangerous politicking that rendered the society into traumatic convulsions. The whole Nigerian society instead of enjoying that which the Constitution in its opening declared for Nigerians now live in fear. The Leadership in Anambra State is constantly being affected by this disregard of rule of law, weak and ineffective and indeed lacking in enforcement of the rule of law because the leadership has continuously and constantly lost its moral and legal right to lead the people to the path of moral rectitude, peace and stability and progress. It is the duty and responsibility of all organs of government and all authorities and persons, exercising legislative, executive and judicial powers to conform to, observe and apply the Constitution. There are fundamental objectives and directive principles of state policy which requires the government and people of Nigeria to observe particularly the abolition of corrupt practices and abuse of power, which is contained in section 15 of the Constitution of the Federal Republic of Nigeria, 1999. It is this corrupt practices and abuse of power that vitiates the constant failure to uphold and defend the Constitution.”

CONCLUSION:

It is instructive to note that the above lamentations of the Nigerian Court Appeal was made in a case in which the parties to the suit were all principal actors in Anambra State government around 2007. Years down the line, history is about repeating itself again. That the same circumstances under which those sad commentaries were made are being resurrected today by the occupants of Awka Government House today should put all he stakeholders on alert. The Governor, in the clearest of language, must be awoken to the wide-ranging implications of taking the populace (including the Lawyers) for granted in a State as enlightened and sophisticated as Anambra.
At the beginning of this article, we cited Justice Niki Tobi, a retired Justice of the Nigerian Supreme Court, where he rightly stated that ‘the courts are available to accommodate all sorts of grievances’ and he taught us that the law would be vindicated by everybody ‘resorting to the courts for redress’. In 2004 when My Lord Justice Tobi offered this wise counsel, our courts were wide open. I wonder what would be My Lord’s reaction today if he is told that ten years after his judicial exhortations A State in Nigeria does not no longer have a court to “accommodate peoples’ grievances” because the Executive arm has shut down the entire Judiciary making the “vindication of the law” unattainable. One then begins to wonder how we have descended to this infamous path.
The message is simple and it must not be lost. Clearly, the day of public accountability has finally arrived in Anambra State. Our Governor is an acclaimed Auditor and Chartered Accountant. It therefore beggars belief why it now seems difficult for him to embrace the ethos of his own profession and demonstrate them in the Governance of our Dear State. Being a Trustee of power, under the law of Trust, the number one duty of a Trustee is to stand ready with his account at all times so as to render same to the beneficiaries at their instance. Our Governor should take time to study the political history of our Dear State. No one Leader has ever taken our people for granted without paying a heavy cost. No end of such Leaders has ever been enviable or palatable. For any leader, taking the citizens for a ride is a dangerous pathway of self-destruction. Sadly, I am persuaded to believe that my Governor is fast racing down this dreaded slope. May God give him the grace to this dangerous slide, regain focus, take stocks and reinvent himself.
In signing off my reflection, I would join the Psalmist in Psalm 90:12 to pray God to;
“Teach us to count our days aright,
that we may gain wisdom of heart.
After public accounting, we all will equally account to that Supreme and incorruptible Judge. May we not be found wanting in that most crucial hour. I find here a convenient place to stop and I choose to say no more.

JOHNMARY CHUKWUKASI JIDEOBI, A Legal Practitioner based in Abuja. You can reach me through joannesmaria2009@yahoo.com or 08131131942