Sun. Aug 1st, 2021

Johnson O. Esezoobo Esq 

JUSUN Strike; Action Against State Policy  By Johnson O. Esezoobo Esq 

It’s been interesting watching how we grow and react to developments in our society that professes a written Constitution which proclaims its supremacy. And since the return of democracy in May 1999, it has been a story of disappointment how we react to such developments.

 One such development is the ongoing strike action by the Judiciary Staff Union of Nigeria which has shut down the Courts nationwide thereby bringing the administration of justice to a standstill, quite apart from rendering lawyers jobless for the third week from tomorrow, Monday the 19th of April 2021. 

The mass support given by the legal community to the otherwise ‘illegal strike action’, express and tacit, seems to suggest some disturbing conspiracy which has further accentuated lack of what to do or a culpable inability to identify available remedy to the problem and how to go about it.  

Usually, a trade union or an association of workers, embarks on a strike action to protest certain irregularities in their work place or to enforce certain conditions relating to their employment. It is often a process of rendering the management uneasy so as to force them to attend to the workers’ demands relating to conditions of service or issues of work place. In other words, the strike action is usually a matter between the employees and employers.

It is rather incongruous that a trade union will embark on a strike action, as in this JUSUN case, not against the Judicial Service Commission as the employer to protest irregularities affecting their conditions of service or matters of their work place, but to enforce constitutional provisions or orders of courts against Governors of the States of the Federation and the Minister of the Federal Capital Territory. 

More pointedly, the cause of the strike action is said to be State Governors’ refusal to accord financial autonomy to the judiciary as provided under S. 81(3) and S.121(3) of the Constitution. Why this should be a matter for a trade union protest in which lawyers and Judges are collaterally sent off-shelf is intriguing. Contextually, the cause of protest suggests an admission of superiority of the Executive to the Judiciary contrary to the law in Military Governor of Lagos State v Ojukwu (1986) SC…that established the principle of ‘autonomy’ of each of the arms of Government as well as prohibition of any one of the three arms acting in ‘sabotage’ of the other.     

If the above is the law, then JUSUN would need to show its locus standi to protest where the Executive is acting in sabotage of the Judiciary. This is where the mass support by the legal community, express or tacit, declared for the action seems to be inadvertent of some very serious issues of constitutional significance involved in the crisis. 

Executive Snootiness Aftermath Of Failure Of Judiciary And The Legal Profession-: One fundamental question begging for answer in the sprawling controversy is what emboldens the State Governors not only to shun the Constitution but also to refuse to obey orders of Courts. This is a matter that should agitate the mind of true advocates of democracy and the Rule of law that lawyers are expected to be by reason of their training and orientation as restated by Belgore, JSC as he then was in Nwosu v Imo State Environmental Sanitation Authority [1990] 2 NWLR (Pt.135) 688. Suffice it to say that the current situation in the Country’s democracy wherein the executive has become uncontrollable is a result of the failure of the judiciary and indeed the entire legal community to take a firm and uncompromising position for the Rule of law by developing principles such as would strengthen State institutions and inspire collegiate actions in Government. 

The move towards one-man absolutism was first experienced in the events leading to the case of Johnson O. Esezoobo v Minister of Labour (Unreported) Suit No. LD/1556/90. Here, the plaintiff was placed on indefinite suspension by Chief Executive without reference to the Board for merely airing a view that the appointment of the Chief Executive by the Minister was illegal. At the Board meeting, the Chairman queried the authority of the Chief Executive to suspend the plaintiff without reference to the Board. The man took leave of the Board and phoned the Minister who invited the Board members to his office and pronounced a dissolution of the Board thereby forestalling the hearing of the plaintiff’s protest. 

The more interesting thing is that while the Chief Executive assume authority as a De Facto Sole Administrator of the organization, the case file disappeared mysteriously on the date set down for judgment. And to date, no judgment has been given, since 1991. That was during military regime. 

But his pattern of dissolution of democratic institutions has continued under our democracy where Governors have whimsically dissolved elected Local Government Councils, replaced them with Caretaker Committees through which he dictates their administration and control the finances. 

A recent decision of the Court of Appeal Benin Division, annulled the dissolution of a Commission by Adams Oshiomhole in 2008. In the context of the discussion, such a decision handed down thirteen (13) years after the act complained about means that an illegality has been allowed to endure for 13 years. Of what utilitarian value then is such judgment other than to adorn the law reports. That is not helping to develop democracy and the rule of law and is not capable building a responsible society. 

          Arising from the above is that above institutions of State, personalities are extolled. The recent case in the United States of America in which President Donald Trump went to Court in several suits to redress various allegations of electoral irregularities by his opponents is illustrative of point being advanced here. The manner in which Justice Walter Onnoghen was removed as Chief Justice of Nigeria, using the institution that was expected to protect the values of democracy and the Rule of law provides a sharp contrast. 

Evidently therefore, upon the return of democracy in Nigeria in May 1999, the judiciary and the legal profession proceeded as if nothing had happened. They failed to upgrade or elevate our law to meet the challenges of the new dispensation. Indeed, from the impunity that has characterized actions of State Governors since 1999, it can be asserted with aplomb that our law has not developed beyond the level Babangida’s military Presidency left it in 1993. 

General Domkat Bali aptly described it as ‘One-man show’ in 1992 following Babangida’s dissolution of the Armed Forces Ruling Council in 1989 and unilateral deployment of Service Chiefs etc. All of these have resonated in the President Buhari’s appointment of Chief of Staff, appointment of retired military officers into career offices as well as extension of service of some persons such as IGP Adamu and Accountant General of the Federation; all aside from outright disobedience to the orders of Court. The situation is not different at the State level where Governors are no less imperial in their actions.
   One burning question now is why it should be the responsibility of the JUSUN to enforce financial autonomy for the judiciary and not the Judiciary itself which is constituted by all the Judges from the apex Court down to the least in Nigeria, and the entire body of lawyers in Nigeria. It is a shame that it is a workers’ union that should be fighting for financial autonomy for the judiciary, and so through a strike action for enforcement of orders of Courts. 

A close look at the provisions under which the issue is being raised does not seem to leave anything for the Governor(s) to justify any interference causing the controversy because both Sections speak of direct disbursement to the judiciary. If this is accepted, should the Governor be interfering anyhow with the matter, that would amount to usurpation of power as well as unlawful interference with the rights of the judiciary which the authorities assigned with the duty of direct disbursement and the beneficiary of the disbursement, the Judiciary, should look into and resolve.

And should the Governors interfere and subvert the Constitution, that would be a matter touching on impeachable offence under the Constitution. 

Whether or not the above view is correct, there are judicial pronouncements which JUSUN is relying on in engaging the strike action option which judicial pronouncements are considered as having taken the matter beyond that level to the point as to the policy regarding enforcement of judgments in Nigeria.  

Judgment Enforcement Policy Under The Constitution-: Having obtained judgments of Court on the matter, what ought JUSUN, like Olisa Agbakoba SAN, as judgment creditors do and how? In other words, what is the procedure prescribed under our law for enforcement of judgments of Courts? Curtly, this is contained in S.287 of the Constitution which constitutes the primary source, in conjunction with the statutory provision in the Sheriffs & Civil Process Act and the Judgements Enforcement Rules made thereunder. In none of these provisions is a strike action by workers provided as a means of enforcing Court Judgments. 

A strike action is a ‘political solution’ to a legal problem which ultimately will involve a compromise and might not provide a permanent solution. It suggests a failure of the legal process as was the situation the celebrated case of the Attorney General of Lagos State v Attorney General of the Federation [2004]18 NWLR (Pt.904)1 involving the illegal seizure by the President of the Lagos State Local Government statutory allocation. It is instructive that when Prince Bola Ajibola SAN and Senator (Professor) Osarieme Osunbo as Chairman of Senate Committee on Judiciary and Human Rights shamefully argued in favour of ‘Political Solution’ as against legal process, I wrote a letter of protest to the learned Professor of law to explain the deeper implications and urged him to reject ‘Political Solution’ as a subversion of the legal process. He shunned the idea.
Unexplored Parts Of The Law-: Under the Nigerian law, the only way by which the Judiciary Staff Union, like Olisa Agbakoba (SAN), can lawfully enforce the judgments they got which was not appealed by any of the States is to go back to the Court for orders on the Attorney-General as Chief Law Officer of the State to have the judgments enforced. It is now trite that it is the duty of the Attorney-General in his capacity as Chief Law Officer of the State to ensure that the Governor, and by that, the State complies. See the obiter dictum in Osho v Foreign Finance Corporation [1991] 4 N.W.L.R (Pt.184) 157 and Jallo v Governor of Kano State (199..) … N.W.L.R (Pt.194)…. 

Analytically, the implication is that there is a point at which a Governor ceases to be so and becomes an outlaw. The idea or quip how do we enforce the judgments when a Governor refuses to obey as has been advanced by some colleagues, does not sound attractive to me. Our failure to take the law to the point of its relevance in the face of the impunity of disobedience to the orders of Court has emboldened State Governors to do anything whimsically including looting of the state treasuries while clinching to the immunity clause under S.308 of the Constitution. 

And upon leaving office as Governors, they get elected into the Senate to purport to be making laws for us. No decent society does that as it amounts to promoting irresponsibility.   

Inconsistency Of Meeting State Governors-: it has to be stressed that enforcement of judgments of Courts is not a political matter that should be the basis of a debate, discussion or negotiation with State Governors. I will not, as an advocate of Rule of law, from which my worth flows, subscribe to a process of negotiating with Governors to obey orders of Courts. That is a way of encouraging them to remain in prodigality. Thus, insisting on compliance is taking a position for supremacy of the law. 

Therefore, enforcement of judgments of Courts should be taken strictly as a matter of law by which the Governor himself is made. He cannot despise that law by disobeying orders of Courts and yet remain in office because at that point he should be seen as having lost the mandate of the people, to whom ‘sovereignty belongs’, by which mandate he was put there. Having stepped out of law and become an outlaw, he should be shown the way out through the law. The logic of this principle is that where a Governor fails to comply with or enforce the judgment of Court, he cannot be said to be acting as Governor of the State but as an outlaw liable to be removed from the office by impeachment. The failure to consider in the unprecedented situation leading to the case of Attorney General of Lagos State v Attorney General of the Federation (Supra) emboldened the President to disobey the order of the highest Court of the land and forced apologetics of political solution to compromise the judgment.

In a serious democracy that ours is ordinarily expected to be, disobedience to the order(s) of Court by a Governor or the President is as serious a matter to constitute a “gross misconduct” within S.188 of the Constitution for which the House of Assembly of the State can engage the impeachment process. As to the procedure for effectuating the impeachment, the Court at the point of giving judgment should include a ’recommendation’ as under S.318 of the Constitution setting a time frame within which the Governor must comply lest the Attorney – General who is otherwise the representative of the State and Government should refer the matter to the House of Assembly for necessary follow-up action. 

Where no such binding recommendation was made at the time of delivery of judgment, the Court can subsequently upon an application by the Attorney – General or of a party like JUSUN or Olisa Agbakoba SAN in this case make a binding ‘recommendation’ as a consequential order.

The above calculus could easily have been developed from the scheme of Government under the Nigerian Constitution which by the doctrine of Separation of powers shares powers of the State among three arms of Government, leaving no one of them dominant. With a proper development of this doctrine, the judiciary could easily have regulated the administration of law to exercise the needed checks and balances on exercise of power; and confine everyone to the limits assigned by the Constitution. 

But by what can be described as culpable default, occasioned by judicial abdication of its responsibility, the executive has become not only dominant in the scheme of Government, but has literally become Sole Administrator of the State such emboldens Governors to reduce issues of enforcement of orders of Court to a matter of personal choices expressed in the form of a ‘promises’ with Nyeson WIKE of Rivers State backing out threats ‘to stop the implementation of financial Autonomy for the judicial arm of government in Rivers State if the court workers and its (sic) does (sic) not put an end to the strike in the state’. 

According to the report, Governor Wike said to the Chairman of the NBA, “if you, NBA, commend this administration for our support for the judiciary and implementing the Financial Autonomy, what then is the use of the strike in the state?

Another institution that could have been developed by the judiciary but has been left fallow is the office of the Attorney-General as Chief Law Officer of the State. The failure to develop this has reduced that high and exalted to that of a glorified messenger of the Governor of the State or of the President as the case may be. One effect of a proper development of that office could have produced following the obiter dictum of Olatawura JSC in Osho v Foreign Finance Corporation [1991]4 NWLR (Pt. 184) 157 is that an Attorney-General would take up his duty of advising the Governor and not just serve as a reserve to defend actions of the Governor even when it is obvious the latter is no more acting as Governor but as an outlaw who needs to be called to order. 

Let’s look at it together learned colleagues, considering that the action of Obasanjo in seizing the Lagos State statutory allocations for the Local Governments was declared illegal in the case of Attorney General of Lagos State v Attorney General of the Federation (Supra) on the ground that no law supported it, one question that could have been asked is on what basis was the Attorney General with all the other prominent legal practitioners he assembled in his team defending that action? This is a question for another day. 

It would be recalled that prior to the commencement of the strike action, the NBA had reportedly sought to intervene saying that the action would further aggravate the low pace of administration of justice arising from devastating effects of COVID-19 pandemic lock down and the EndSARS protests of October last year. 

Curiously, the same NBA turned to support the strike and directed Chairmen of State Branches to meet the Governors. I made frantic efforts at reaching the President of the NBA to advise against it because of the dangers I saw in that course but failed.  

Now that such a pejorative statement as credited to Nyeson Wike of Rivers State has come out from in reaction to the issues on ground, it is left to watch who among us lawyers and Judges can join issue with this snooty Executive Governor in the very much desirable need to regain the waning glory of the otherwise noble profession.

Johnson O. Esezoobo Esq can be reached through +234 803 320 0595