FALUYI & ANOR v. NUT & ORS (2022)

FALUYI & ANOR v. NUT & ORS

(2022)LCN/16552(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, July 20, 2022

CA/A/256/2009

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. CHARLES O. FALUYI 2. OLUSOLA ADOJUTELEGAN (For Themselves And On Behalf Of The Association Referred To As Academic Staff Union Of Secondary Schools, Nigeria (ASUSS) (Formerly Conference Of Secondary School Tutors Nig. – COSST) APPELANT(S)

And

1. NIGERIA UNION OF TEACHERS 2. NIGERIA LABOUR CONGRESS 3. HON. MINISTER OF EMPLOYMENT LABOUR AND PRODUCTIVITY 4. REGISTRAR OF TRADE UNIONS RESPONDENT(S)

RATIO:

NO APPEAL AGAINST THIS FINDING SO IT REMAINS SUBSISTING AND ITS CORRECTNESS CANNOT BE QUESTIONED

There is no appeal against this finding so it remains subsisting and binding and its correctness cannot be questioned. See COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, P. N. UDOH TRADING CO LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 at 146, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8, FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20 and FIRST DEEPWATER DISCOVERY LTD vs. FAICECK PETROLEUM LTD (2020) LPELR (49783) 1 at 27. Indeed, the Appellants confirm that the 1st Respondent’s cause of action is in respect of the executive or administrative action or decision of the 3rd and 4th Respondents. Hear the Appellants’ submission at page 12 of the Appellants’ Brief:
“The question to be asked in this issue for determination is this: what is the act of the 3rd and 4th Respondents that gave rise to the cause of action upon which the questions for determination in the originating summons and the reliefs are based?
My Lords, we submit that it was the action of the 3rd and 4th Respondents (in this appeal) in relation to the application/approval for/of registration of Appellants tow it: [sic] the Academic Staff Union of secondary schools as a Trade union which in essence is questioning the validity of the actions taken by the 3rd and 4th Respondents in pursuance of the Trade Union Act.” UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE JURISDICTION OF A COURT IS STATUTORY

It is settled law that the jurisdiction of a Court is statutory and it is the Constitution or the statute creating a Court that sets out the jurisdiction of the Court. See OSADEBAY vs. A-G BENDEL STATE(1991) 1 NWLR (PT 169) 525 and SHELIM vs. GOBANG (2009) 12 NWLR (PT 1156) 435 at 452. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE SUBSTANTIVE LAW GOVERNING A CAUSE OF ACTION IS THE LAW IN FORCE AT THE TIME THE CAUSE OF ACTION AROSE

Equally trite law is that the substantive law governing a cause of action is the law in force at the time the cause of action arose. See SAVANNAH BANK vs. PAN ATLANTIC (1987) 1 NWLR (PT 49) 212, ADEYEYE vs. AJIBOYE (1987) 3 NWLR (PT 61) 432 at 451 and ADIGUN vs. AYINDE (1993) 8 NWLR (PT 313) 516 at 536 and 539. This is in contradistinction to the procedural law governing the trial of an action, which is the adjectival law in force at the time of trial of the action, unless there is a provision to the contrary: OWATA vs. ANYIGOR (1993) 2 NWLR (PT 276) 380 at 391. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE JURISDICTION OF THE COURT TO ENTERTAIN AN ACTION IS DETERMINED ON THE STATE OF THE LAW

The jurisdiction of the Court to entertain an action is determined on the state of the law conferring jurisdiction at the point in time when the action was instituted and heard. See ADAH vs. NYSC (2004) 7 SC (PT II) 139 at 142 and OSAKUE vs. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) 10 NWLR (PT 1201) 1. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The 1st Respondent herein is a registered trade union, which represents all teachers employed in educational institutions of all types, excluding Universities, Polytechnics, Colleges of Education and other tertiary institutions. Upon becoming aware of plans to register another union, called the Academic Staff Union of Secondary Schools, the 1st Respondent instituted an action contending that it already represents the secondary school teachers and that by law, no other union can be registered to represent their interest.

The 1st Respondent’s action was before the Federal High Court in SUIT NO. FHC/ABJ/CS/310/2008: NIGERIA UNION OF TEACHERS & ANOR. vs. HON. MINISTER OF EMPLOYMENT, LABOUR AND PRODUCTIVITY & ORS. The action which was commenced by Originating Summons presented the following questions for determination in the Amended Originating Summons:
“1. Whether having regard to Section 5 of the Trade Union Act as amended the 2nd defendant has vires or jurisdiction to register as a trade union a class or body of persons whose interest is sufficiently represented by an existing trade union.
2. Whether in the event that the 2nd defendant refuses to register a class or body of persons as a trade Union it is within the vires or competence of the 1st defendant to over-rule the 2nd defendant and direct registration of the class or body of persons notwithstanding that an existing trade union is sufficiently representative of the interests of the class or body of persons.
3. Whether Section 3 and 5 of the Trade Unions Act on the exercise of power of registration of trade unions by the 2nd defendant are inconsistent with Section 40 of the 1999 Constitution”.

Upon the determination of said questions, the following reliefs were claimed:
“1. DECLARATION that the 2nd defendant has no vires or jurisdiction to register as a trade union a class or body of persons where exists a trade union sufficiently representative of the interests of the class or body of persons.
2. DECLARATION that the 1st defendant has no vires or competence to over-rule the 1st defendant and approve for registration as a trade union a class or body of persons where exists a trade union sufficiently representative of the interests of the class or body of persons.
3. DECLARATION that Section 3 and 5 of the Trade Union Act are not inconsistent with Section 40 of the 1999 Constitution.
4. DECLARATION that the jurisdictional scope of the plaintiff as a registered trade union covers all teachers employed in educational institutions of all types excluding only, in the meantime, Universities, Polytechnics, College of Education and other tertiary institutions.
5. DECLARATION that the association known as ACADEMIC STAFF UNION OF SECONDARY SCHOOLS (ASUSS) (formerly Conference of Secondary School Tutors- COSST) represented by the 3rd and 4th defendants is not registrable as a trade union on the ground that the plaintiff is sufficiently representative of the interests of the class of persons (i.e. secondary school teachers) whose interest ASUSS is intended to represent.
6. INJUNCTION restraining the 1st and 2nd defendants from registering and/or issuing a certificate of registration as a trade union to the association represented herein by the 3rd and 4th defendants, known as Academic Staff Union of Secondary Schools (ASUSS) (formerly Conference of Secondary School Tutors- (COSST).
7. INJUNCTION restraining the 3rd and 4th defendants and other members of ASUSS by themselves, their agents, servants and/or privies or otherwise howsoever from taking any steps or further steps for the purposes of registration of ASUSS as a trade union and/or for the purpose of the issuance of a certificate of registration to ASUSS as a trade union and from collecting any certificate of registration of ASUSS as a trade union or acting as a trade union and in particular from representing in any manner whatsoever, the interests of primary and post primary schools teachers throughout Nigeria.
8. AN ORDER setting aside any approval for registration, any registration of ASUSS as a trade union, and any certificate of registration as a trade union that may be issued to the association known as ASUSS (formerly COSST).”

The Appellants and the 3rd and 4th Respondents herein, who were the Defendants at the lower Court, could not see their way clear with the competence of the action and the jurisdiction of the lower Court to entertain the action. They challenged the jurisdiction of the lower Court and in its ruling delivered on 10thMarch 2009, the lower Court dismissed the objections to its jurisdiction. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same to this Court. This Court heard the appeal and delivered its judgment on 11th July, 2014. The Appellants further appealed against the decision of this Court to the Supreme Court in APPEAL NO. SC.432/2014. The apex Court in its judgment delivered on 15th January, 2021 allowed the appeal on the ground that the judgment of this Court was a nullity, due to the disparity in the panel of this Court that heard the appeal and the panel that delivered the judgment. The apex Court then ordered that the appeal be heard de novo by this Court. So, here we are.

The Appellants’ Notice of Appeal which was filed on 23rd March 2009 is at pages 412-414 of the Records, while the scarified decision of the lower Court is at pages 393-411 of the Records. The parties filed and exchanged briefs of argument, which learned counsel adopted and relied upon at the hearing. The 3rd and 4th Respondents were not represented by counsel at the hearing, however, upon being satisfied that they were on notice of the hearing date, the Court invoked the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021 and treated the appeal as duly argued.

In the Appellants’ Brief which was filed on 10th July 2012, but deemed as properly filed on 30th October 2012, a sole issue was crafted for determination, namely:
“Whether the Court below was right in assuming jurisdiction in this matter having regard to the provision of the Trade Unions Act, 2004 which provisions provides [sic] for the Appropriate Court to determine the validity of any action taken by any person or authority (in this case, the Registrar of Trade Unions and the Honourable Minister of Labour and Productivity) in respect of trade Union matters.”

The 1st Respondent equally nominated a sole issue for determination in its brief of argument, which was filed on 26th March 2013, but deemed as properly filed on 30th January 2014, videlicet
“Whether considering the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria, the Trade Unions Act and the National Industrial Court Act, 2006 the Federal High Court has jurisdiction to determine the claims of the 1st respondent in this case.”

The solitary issue distilled by the 2nd Respondent in its brief of argument filed on 5th April 2013, but deemed as properly filed on 30th January, 2014 is:
“Whether the learned trial Judge was right to have dismissed the objections challenging the jurisdiction of the Court to entertain the matter having regard to the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the Trade Unions Act and the National Industrial Court Act, 2006.”

The 3rd and 4th Respondents’ Brief was filed on 4th February 2014, wherein they adopted the lone issue formulated for determination by the Appellants and in their submissions, they aligned themselves with the Appellants’ submissions and urged the Court to allow the appeal. Post haste, let me state that even though the 3rd and 4th Respondents filed a Notice of Appeal against the decision of the lower Court, see pages 415-418 of the Records, they did not prosecute their said appeal. They remain Respondents in this appeal and the traditional role of a respondent is to defend the decision appealed against. It is not for the respondent to contend, as the 3rd and 4th Respondents have done in their brief of argument, that the appeal be allowed. That is an abdication of the role of a respondent which is not permissible. See Order 19 Rule 4 (2) of the Court of Appeal Rules, 2021 and the cases of DANGANA vs. USMAN (2012) LPELR (25012) 1 at 21, KAYILI vs. YILBUK (2015) LPELR (24323) 1 at 82-83 and AGI vs. PDP (2016) LPELR (42578) 1 at 100-101. In the circumstances, the 3rd and 4th Respondents’ Brief of Argument which does not serve the traditional role of defending the decision appealed against is hereby discountenanced. It would play no further part in the consideration and determination of this appeal.

The issues distilled by the parties are the same two and tuppence. Accordingly, I will now review the submissions of learned counsel and then determine the appeal.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the 1st Respondent’s case is rooted in the provisions of the Trade Unions Act. It was stated that it is the reliefs sought as well as depositions in the affidavit in support of the originating summons that have to be examined to ascertain the jurisdiction of the Court vide ACTION CONGRESS vs. INEC (2007) 18 NWLR (PT 1065) 50 at 72. It was contended that the Trade Unions Act is the only statute regulating the registration of trade unions in Nigeria and that the 1st Respondent’s cause of action is that they question the validity of the action of the 3rd and 4th Respondents as it relates to the application/approval for the registration of the Academic Staff Union of Secondary Schools as a trade union.

It was opined that the 1st Respondent based its case on the Trade Unions Act and that it did not challenge or question any of the provisions of the Act, as a result of which it was wrong for the lower Court to hold any of the provisions of the Act as unconstitutional. It was posited that a party cannot approbate and reprobate. The cases of JADESIMI vs. OKOTIE-EBOH (1989) 4 NWLR (PT 113) 113 at 125, ROZEN INVESTMENT LTD vs. NDIC (2007) ALL FWLR (PT 348) 821 at 858, GREEN FINGER AGRO IND LTD vs. YUSUFU (2003) 12 NWLR (PT 235) 488 at 507, COMM. L & H, KWARA STATE vs. ATANDA (2007) 2 NWLR (PT 1018) 360 at 374, NGIGE vs. OBI (2006) 14 NWLR (PT 999) 1 at 197and UDE vs. NWARA(1993)2 NWLR (PT 278) 638 at 662-663 were referred to. It was asserted that by Sections 52 and 54 of the Trade Unions Act, the appropriate Court where the validity of any action taken under the Trade Unions Act is to be questioned is the Industrial Arbitration Panel or the National Industrial Court since the right and the remedy are given unoflatu and one cannot be dissociated from the other. The cases of EGUAMWENSE vs. AMAGHIZEMWEN (1993) 9 NWLR (PT 315) 1 at 22-23 and BARRACLOUGH vs. BROWN (1897) AC 615 at 622 were relied upon.

It was further contended that Section 251 of the 1999 Constitution is not an open gate for the lower Court to assume jurisdiction in all subjects, notwithstanding the fact that the Federal Government or its agency are parties to the suit. The cases of TRADE BANK PLC vs. BENILUX NIG LTD (2003) 9 NWLR (PT 285) 416 at 432-433, OMOTESHO vs. ABDULLAHI (2008) 2 NWLR (PT 1072) 526 at 548, ONUORAH vs. KRPC LTD (2005) 6 NWLR (PT 921) 393, NIGERIA INSTITUTE OF MEDICAL RESEARCH vs. AKIN-OLUGBADE(2008) 5 NWLR (PT 1079) 68 at 95 and PPMC vs. MESSRS DELPHI PETROLEUM INC. (2005) 8 NWLR (PT 928) 458 at 465 were cited in support. It was stated that by the stipulations of Section 254C (1) (a),(b)and (d) of the 1999 Constitution as amended, the jurisdiction of the lower Court to hear and determine the suit had been ousted. The case of ADEKOYE vs. NSPMC LTD (2009) 5 NWLR (PT 1134) 322 at 348 was called in aid.

It was posited that it is the law conferring jurisdiction at the time the action was filed and heard that determines the jurisdiction of the Court vide AREMO II vs. ADEKANYE (2004) NWLR [no volume stated] (PT 891) 574 at 579 and ADAH vs. NYSC (2004) ALL FWLR (PT 223) 850 at 856. It was opined that the 1st Respondent’s claim falls under Section 254C (1) (a)–(k) of the 1999 Constitution as amended and that when the jurisdiction of a Court in a case ceases, the suit determines. The cases of ANSA vs. RTPCN (2008) 7 NWLR (PT 1086) 421 at 443, ENWEZOR vs. INEC (2009) 8 NWLR (PT 1143) 224 at 237 and OBIUWEUBI vs. CBN (2011) 7 NWLR (PT 1247) 465 at 511 were relied upon.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
It is the submission of the 1st Respondent that the decision of the lower Court is consistent with the provisions of Sections 1 (1), (3), 4 (8), 6 (6) (b), 251, 272 and 315 (3) of the 1999 Constitution. It was stated that the 1st Respondent relied on Sections 3 and 5 of the Trade Unions Act and Section 40 of the 1999 Constitution in seeking its reliefs, and that it is the Appellants and the 3rd and 4th Respondents who relied on Sections 52 and 54 of the Trade Unions Act and Section 7 of the National Industrial Court Act, which provisions conflict and do not conform with the provisions of the Constitution.

It was further submitted that it is the plaintiff’s claims that determine the jurisdiction of the Court and that the essence of the 1st Respondent’s claim is a challenge on the executive or administrative action or decision of the 3rd and 4th Respondents and interpretation of Section 40 of the Constitution which come within the purview of Section 251 (1) (q) and (r) of the 1999 Constitution. The cases of OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT 1085) 1 at 36, NEPA vs. EDEGBERO (2002) 17 NWLR (PT 798) 79 at 97 and FGN vs. OSHIOMHOLE (2004) 3 NWLR (PT 860) 305 at 323 were referred to. It was stated that Sections 52 and 54 of the Trade Unions Act and Section 7 of the National Industrial Court Act were existing laws and that their provisions being in conflict with the Constitution, the Constitution, being supreme would prevail. The cases of OLORUNTOBA-OJU vs. DOPAMU (supra) at 30, A-G OYO STATE vs. NLC (2003) 16 NWLR (PT 821) 1 at 36 and ANSA vs. RTPCN (supra) at 446 were relied upon.

It was asserted that the 1st Respondent did not approbate and reprobate as it did not question the legality of the Trade Unions Act, but that upon the Appellants challenging the jurisdiction of the lower Court based on Sections 52 and 54 of the Trade Unions Act, the 1st Respondent submitted that the said Sections cannot oust the jurisdiction of the lower Court in the light of the constitutional provisions.

It was opined that Section 254C of the 1999 Constitution was inapplicable as the provision came into force on 4th March 2011, while the decision of the lower Court was delivered on 10th March 2009. It was stated that the said Section 254C of the 1999 Constitution does not have retrospective application and that the appellate Court is to consider the appeal on the issues raised before, and decided by the lower Court. Section 6 (1) (e) of the Interpretation Act and the cases of UKIRI vs. FCSC (2011) ALL FWLR (PT 577) 783 at 795, ARE vs. A-G, WESTERN REGION (1960) 1 NSCC 76 at 77, ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT 788) 538 at 554 and OBIUWEUBI vs. CBN (2011) 7 NWLR (PT 1247) 465 were cited in support.

SUBMISSIONS OF THE 2ND RESPONDENT’S COUNSEL
It was submitted that the Appellants’ contention that once a party bases his claim upon a particular statute, that he cannot argue that a section of that statute is unconstitutional, is predicated on a faulty foundation. It was opined that a Court is empowered to nullify sections of a law it finds unconstitutional, regardless of the fate of the other Sections of the law vide INEC vs. MUSA (2003) 3 NWLR (PT 806) 72 at 166. It was asserted that there is no approbation or reprobation in relying on the provisions of a law and challenging some of the provisions of the same law as unconstitutional.

It was posited that the 1st Respondent founded its case on Sections 3 and 5 of the Trade Unions Act to the effect that the 3rd and 4th Respondents cannot lawfully register another trade union where there already exists a trade union sufficiently representative of the interest of the class of persons that the new trade union intends to represent; but that it was the Appellants, who objected to the jurisdiction of lower Court based on the stipulations of Sections 52 and 54 of the Trade Union Act, which Sections the lower Court then rightly held to be unconstitutional for being in conflict with Section 251 (1) (q) and (r) of the 1999 Constitution. The cases of INEC vs. MUSA (supra) and OLORUNTOBA-OJU vs. DOPAMU(supra) were relied upon. It was conclusively submitted that the provisions of Section 254C of the 1999 Constitution were inapplicable.

RESOLUTION
In the prolegomenon, I set out the salient facts of this matter. It is clear from the said facts that the 1st Respondent’s cause of action is in respect of the decision or actions of the 3rd and 4th Respondents. It has not been confuted that the 3rd and 4th Respondents are agencies of the Federal Government. Indeed, the lower Court found and held as follows at page 409 of the Records:
“All parties have agreed from the record before me that the Plaintiff’s action is a claim for declaration and injunction against the executive or administrative action or decision of the 1st and 2nd Defendants who are agents of Federal Government.”

It is predicated on the above-unchallenged finding and holding of the lower Court that the lower Court affirmed its jurisdiction and held as follows at page 409 of the Records:
“In the instant case, the Minister for labour and the Registrar of trade union were Federal Government agencies. The claim or relief being sought by the Plaintiff are purely within the context of Section 251 (i) [sic] (q) (r). It is therefore, this Court that has jurisdiction.”

It thereafter proceeded to hold that the provision of Section 52 of the Trade Unions Act is unconstitutional for being inconsistent with Section 251 (1) (q) and (r) of the 1999 Constitution. I will return to this in a trice.

Let me state at this juncture that this appeal raises the issue of the jurisdiction of the lower Court to entertain the1st and 2nd Respondents’ action. A defect in the competence of an action has a negative effect on the jurisdiction of the Court and snuffs out the life of adjudication from the Court. This is because jurisdiction is the fons et origo and threshold of judicial power and judicialism: the very lifeline and livewire of all proceedings in a Court or Tribunal without which the entire proceedings are a nullity however brilliantly they may have been conducted. The authorities are legion. See ROSSEK vs. ACB LIMITED (1993) 8 NWLR (PT 312) 382 at 437 and 487, OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508, OKE vs. OKE (2006) 17 NWLR (PT 1008) 224, OKOLO vs. UNION BANK OF NIGERIA LIMITED (2004) 3 NWLR (PT 859) 87 and FGN vs. OSHIOMHOLE (supra) at 319 amongst a host of other cases.

Generally, the effect of a statute is prospective and not retrospective. So, Section 254C of the 1999 Constitution as amended, which the Appellants have introduced in this appeal, takes effect from its commencement date, which is 4th March 2011. From the processes filed, the 1st Respondent’s cause of action arose on or about the 25th day of February, 2008. It commenced the action at the lower Court on the 20th day of May 2008. The Appellants’ preliminary objection, the provenance of this appeal, was filed on 7th July, 2008; while the decision of the lower Court on the said preliminary objection, which is being challenged in this appeal, was delivered on 10th March 2009. It is therefore as clear as crystal that all aspects of this matter were commenced, tried and decided before 4th March 2011 when Section 254C of the 1999 Constitution as amended came into existence. It seems to me that the legal position is that where the cause of action arose before the said Section 254C came into force, the Court remains seised of jurisdiction to entertain the matter, provided that the trial of the case had taken place before the commencement date of Section 254C of the 1999 Constitution as amended. See OLUTOLA vs. UNIVERSITY OF ILORIN (2004) 18 NWLR (PT 905) 416 and OSAKUE vs. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (supra).
Generally, the effect of a statute is prospective and not retrospective. Section 254C of the 1999 Constitution as amended does not have retrospective effect. Since all aspects of this matter at the lower Court which spawned this appeal had been commenced and concluded before the said Section 254C of the 1999 Constitution saw the light of day, the said provision has no application to the action; since it was not in operation at the time the cause of action arose or when the action was instituted, the preliminary objection filed, argued and decided. See UWAIFO vs. A-G BENDEL STATE (1982) 7 SC 124 and ROSSEK vs. ACB LTD (supra). Section 254C of the 1999 Constitution will therefore play no part in considering and deciding whether the decision of the lower Court is the correct decision.

That said, the grounds of the Appellants’ objection to the jurisdiction of the lower Court are as follows:
“1. The jurisdiction of this Court is clearly excluded by virtue of Trade Union Act (which provision form the subject matter of the Plaintiff’s case).
2. Similarly by virtue of the National Industrial Court Act, 2006, the jurisdiction of this Court is also clearly excluded.
3. The proper venue for the applicant’s action is the National Industrial Court or Industrial Arbitration Panel (if any).”
(See page 79 of the Records)

In this wise, it is not disputed that the 1st Respondent’s complaint had to do with the registration of another trade union where the 1st Respondent already existed to cover the interest of the persons to be represented in the said new trade union, id est, Secondary School teachers. It is in this regard that it then queried the decision or action of the 3rd and 4th Respondents in this respect against the background of the provisions of Sections 3 and 5 of the Trade Unions Act and Section 40 of the 1999 Constitution. Instructively, Section 5 (4) of the Trade Unions Act provides:
“The Registrar shall not register the trade union if it appears to him that any existing trade union is sufficiently representative of the interests of the class of persons whose interest the union is intended to represent.”

Section 315 (3) of the 1999 Constitution stipulates as follows:
“315 (3) Nothing in this Constitution shall be construed as affecting the power of a Court of law or any Tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is tosay –
(a) any other existing law;
(b) a Law of a House of Assembly;
(c) an Act of the National Assembly; or
(d) any provision of this Constitution.”

Having established the 1st Respondent’s cause of action, Sections 52 and 54 of the Trade Unions Act and Section 7 (1) and (2) of the National Industrial Court Act which the Appellants founded their objection on provide as follows:
“52. No question as to the validity of any action taken by any person or authority in pursuance of this Act shall be entertained by any Court other than the appropriate Court having the jurisdiction to entertain such matters.”
54. In this Act, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say –
‘appropriate Court’ means the Industrial Arbitration Panel and the National Industrial Court as the case may be;.”
Section 7 (1) and (2) of the National Industrial Court Act then stipulates:
“7. (1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters-
(a) relating to- (i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and
(b) relating to the grant of any order to restrain 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;
(c) relating to the determination of any question as to the interpretation of- (i) any collective agreement, (ii) any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute, (iii) the terms of settlement of any labour dispute, organisational dispute as may be recorded in any memorandum of settlement, (iv) any trade union constitution, and (v) any award or judgment of the Court.
2. The National Assembly may by an Act confer such additional jurisdiction on the Court in respect of such other causes or matters incidental, supplementary or related to those set out in Subsection (1) of this Section”.
It is limpid from the above provisions that the jurisdiction in respect of validity of an action taken under the Trade Unions Act and civil causes and matters relating to trade unions is vested in the National Industrial Court.
I iterate that the unchallenged finding of the lower Court is that the 1st Respondent’s action is against the executive or administrative action or decision of the 3rd and 4th Respondents, who are agents of the Federal Government. In turn therefore, Section 251 (1) (q) and (r) of the 1999 Constitution as amended stipulates:
“251. (1) Notwithstanding anything to the contrary 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 Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;…”
So as properly contextualised above, Sections 52 and 54 of the Trade Unions Act and Section 7 of the National Industrial Court Act vest jurisdiction on the National Industrial Court; while Section 251 (1) (q) and (r) imbues the lower Court with jurisdiction. The respective provisions are not complementary. They are inconsistent and totally different propositions, one of the other. The Appellants urged the lower Court to decline jurisdiction based on the provisions of the aforesaid stipulations of the Trade Unions Act and the National Industrial Court Act. Now, what is the legal position where the provision of any law conflicts with the stipulations of the Constitution?
It is abecedarian law that the Constitution is the supreme law of the land, the grundnorm from which other laws derive their validity: A-G ABIA vs. A-G FEDERATION (2002) 17 WRN 1 at 180,UGBA vs. SUSWAM (2014) LPELR (22882) 1 at 66-67 and KALU vs. ODILI (1992) LPELR (1653) 1 at 68. Section 1 (1) and (3) of the 1999 Constitution provide as follows:
“1 (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency be void.”
See ABACHA vs. FAWEHINMI (2000) 6 NWLR (PT 660) 228, PDP vs. CPC (2011) 17 NWLR (PT 1277) 485 and SARAKI vs. FRN (2016) LPELR (40013) 1 at 109.
In INEC vs. MUSA (2003) LPELR (24927) 1 at 35-36, Ayoola, JSC stated:
“Section 1 (3) of the Constitution provided that… I take as my starting point some interrelated propositions which flow from the acknowledged supremacy of the Constitution and by which the validity of the impugned provisions will be tested. First, all powers, legislative, executive and judicial must ultimately be traced to the Constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised it is invalid to the extent of such inconsistency.”
See also FBN PLC vs. T.S.A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 74-75, OGAGA vs. UMUKORO(2011)LPELR (8229) 1 at 33 and MARWA vs. NYAKO(2012) LPELR (7837) 1 at 169-170.
It does not require rocket science to decipher that the provisions of Section 52 of the Trade Unions Act and Section 7 of the National Industrial Court Act, were at all times material to this action inconsistent and in conflict with the provisions of Section 251 (1) (q) and (r) of the 1999 Constitution. Accordingly, premised on the legal position expounded above, the constitutional provisions shall prevail and the said provisions shall be void to the extent of the inconsistency: LAFIA LOCAL GOVT. vs. EXECUTIVEGOV. NASARAWA STATE (2012) LPELR (20602) 1 at 47-49, A-G ABIA STATE vs. A-G FEDERATION (2003) 4 NWLR (PT 809) 124, OBASANJO vs. YUSUF (2004) LPELR (2151) 1 at 62 and APC vs. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION (2021) LPELR (55337) 1 at 44.
Since the constitutional provisions prevail, the lower Court was correct to affirm its jurisdiction to entertain the 1st and 2nd Respondents’ action; and furthermore by the combined effect of the provisions of Sections 1 (3) and 315 (3) of the 1999 Constitution, the lower Court was correct to declare Section 52 of the Trade Unions Act void to the extent of its inconsistency with Section 251 (1) (q) and (r) of the 1999 Constitution.

From all that has been said thus far, the destination of this appeal is apparent. It is devoid of any merit whatsoever. It accordingly fails and it is hereby dismissed. The decision of the lower Court delivered on 10th March 2009 is hereby affirmed. The 1st and 2nd Respondents are entitled to the costs of this appeal which I assess and fix at N200,000.00.

MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in advance, the judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA just delivered. I agree with his conclusions that the appeal fails and it is accordingly dismissed.

I abide by the orders of my lord in the lead judgment including order as to costs.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Ogakwu, JCA. I agree entirely with the reasonings articulated therein and the conclusion thereby reached.

I adopt those reasonings as mine; by which I too find this appeal lacking in any merit, liable to be and is dismissed by me too.
I abide by the order on cost.

Appearances:

E. O. Afolabi, Esq., with him, Ms. A. I. Nnaji For Appellant(s)

Ifeanyi Egwuasi, Esq., with him, Ms. Adesola Adeyinka – for 1st Respondent

Valentine Obiajulu, Esq., with him, Ms. Maryvianny Ibeme – for 2nd Respondent

3rd and 4th Respondents absent and not represented by Counsel For Respondent(s)