Can Judiciary Staff Union Shut Down 3rd Arm Of Govt?

By Awa Kalu, SAN

As is within the public domain, the Judiciary Staff Union of
Nigeria, JUSUN, started its strike on 6th April, 2021 and within
the period of more than two months, the courts have remained
shuttered, making the exercise of judicial powers virtually
impossible.

What has happened without any shred of doubt is that our Courts
have become what a good friend of mine called Judgment-reading
courts. It would be nice at this stage to remind whosoever is
reading this piece that Part 2 of Chapter 1 of the Constitution of
the Federal Republic of Nigeria 1999 (Hereafter, the ‘extant
Constitution’) makes provisions for the powers of the Federal
Republic of Nigeria.

Accordingly, while Section 4(1) of the extant Constitution
provides that The legislative powers of the Federal Republic of
Nigeria shall be vested in a National Assembly for the Federation,
which shall consist of a Senate and a House of Representatives.
Section 4(2) expresses that vesting of power to mean that;The
National Assembly shall have power to make laws for the peace,
order and good government of the Federation or any part thereof
with respect to any matter included in the Exclusive Legislative
List set out in Part I of the Second Schedule to this
Constitution.

The provision in section 5 relates to executive power to the
effect that; Subject to the provisions of this Constitution, the
executive powers of the Federation:(a) shall be vested in the
President and may subject as aforesaid and to the provisions of any
law made by the National Assembly, be exercised by him either
directly or through the Vice-President and ministers of the
government of theFederation or officers in the public service of
the Federation; and(b) shall extend to the execution and
maintenance of this Constitution, all laws made by the National
Assembly and to all matters with respect to which the National
Assembly has, for the time being, power to make laws.

For the avoidance of doubt, Section 6 (1) and (2) of the extant
Constitution relates to Judicial powers and states unequivocally
that; (1) The judicial powers of the Federation shall be vested in
the courts to which this section relates, being courts established
for the Federation. (2) The judicial powers of a State shall be
vested in the courts to which this section relates, being courts
established, subject as provided by this Constitution, for a
State.

This piece will not, unless as may become necessary, deal with
the exercise of legislative or executive power and accordingly,
will analyse the long-lasting strike by JUSUN with regard to
Judicial power only.

According to Professor Nwabueze in his very well celebrated
book; JUDICIALISM IN COMMONWEALTH AFRICA (1977); ‘The Expression
Judicial power, understood as the power which the state exerts in
the administration of public justice in contradistinction from the
power it possesses to make laws and the power of executing them, is
not in the least ambiguous. Furthermore, Professor Nwabueze
expresses the view that; ‘Seven different attributes are
identifiable in these definitions of Judicial power:

i. The existence of a dispute between two or more parties about
some existing legal right; an act, e.g, a contract or an industrial
award that only creates new rights by which future conducts is to
be regulated cannot therefore be judicial;

ii. A compulsory jurisdiction at the instance of the party to
enquire into the dispute; iii. A power to determine authoritatively
(i.e, Conclusively) the facts of the disputes; iv. A power to
determine authoritatively, the law relevant to the dispute; v. A
decision arrived at by the application of the relevant law to the
facts, and which by declaring the rights in question, finally
disposes of the whole dispute;

vi. This final determination binds the parties in the dispute;
vii. A power to enforce compliance with or obedience to the
decision.

The most authoritative Dictionary known to most lawyers, i.e The
Black’s Law Dictionary (10th Edition) similarly defines judicial
power to mean the authority vested in Courts and Judges to hear and
decide cases and to make binding judgments on them; the power to
construe and apply the law when controversies arise over what has
been done or not done under it.

For the avoidance of doubt, it will be important to emphasize at
this stage that the exercise of judicial power is an essential
attribute of Government (whether Federal or State). We must also
note that when the power to exercise that attribute of state power
is rendered impossible, then very serious legal considerations as
well as consequences which are not anticipated inevitably
arise.

The question which then arises is whether any trade union or
group of persons can prevent any government from exercising its
power or any component of his power, whether legislative, executive
or judicial. The answer will be clear when we look at the
definition of the word Strike. Section 48(1) of the Trade Disputes
Act states that; ”Strike means the cessation of work by a body of
persons employed acting in combination, or a concerted refusal or a
refusal under a common understanding of any number of persons
employed to continue to work for an employer in consequence of a
dispute, done as a means of compelling their employer or any
persons or body of persons employed, to accept or not to accept
terms of employment and physical conditions of work; and in this
definition:- (a) “cessation of work” includes deliberately working
at less than usual speed or with less than usual efficiency, and
(b) “refusal to continue to work” includes a refusal to work at
usual speed or with usual efficiency.”

By the same token, the Black’s Law Dictionary aforesaid defines
Strike to mean an organised cessation or slow down of work by
employees to compel the employer to meet the employees’ demands; a
concerted refusal by employees to work for their employer or to
work at their customary rate or speed, until the employer grants
the concession that they seek.

What the Trade Disputes Act (as well as the Black’s Law
Dictionary) contemplates is that a Strike will become necessary in
consequence of a Dispute ‘done as a means of compelling their
employer or any person or body of persons to accept or not to
accept terms of employment and physical conditions of work.’ If we
may ask, who is the employer of the JUSUN workers who are on
strike?

In addition, are those workers on strike because of a Dispute
with individual State governments or with a combination of all
State Governments, or has the strike arisen because of a dispute
with the Federal Government? Also relevant is the question of
whether the Judicial Staff who are on strike have any condition in
their individual or collective agreement relating to or arising
from ‘Judicial Autonomy’?

Irrespective of whatever answer you have, can the judicial
apparatus of any state be shutdown for as long as two months
because of the quest for Judicial autonomy as presented by JUSUN,
at least publicly? The answers to these questions will be provided
in the next installment to this piece.

By Awa Kalu, SAN

As is within the public domain, the Judiciary Staff Union of
Nigeria, JUSUN, started its strike on 6th April, 2021 and within
the period of more than two months, the courts have remained
shuttered, making the exercise of judicial powers virtually
impossible.

What has happened without any shred of doubt is that our Courts
have become what a good friend of mine called Judgment-reading
courts. It would be nice at this stage to remind whosoever is
reading this piece that Part 2 of Chapter 1 of the Constitution of
the Federal Republic of Nigeria 1999 (Hereafter, the ‘extant
Constitution’) makes provisions for the powers of the Federal
Republic of Nigeria.

Accordingly, while Section 4(1) of the extant Constitution
provides that The legislative powers of the Federal Republic of
Nigeria shall be vested in a National Assembly for the Federation,
which shall consist of a Senate and a House of Representatives.
Section 4(2) expresses that vesting of power to mean that;The
National Assembly shall have power to make laws for the peace,
order and good government of the Federation or any part thereof
with respect to any matter included in the Exclusive Legislative
List set out in Part I of the Second Schedule to this
Constitution.

The provision in section 5 relates to executive power to the
effect that; Subject to the provisions of this Constitution, the
executive powers of the Federation:(a) shall be vested in the
President and may subject as aforesaid and to the provisions of any
law made by the National Assembly, be exercised by him either
directly or through the Vice-President and ministers of the
government of theFederation or officers in the public service of
the Federation; and(b) shall extend to the execution and
maintenance of this Constitution, all laws made by the National
Assembly and to all matters with respect to which the National
Assembly has, for the time being, power to make laws.

For the avoidance of doubt, Section 6 (1) and (2) of the extant
Constitution relates to Judicial powers and states unequivocally
that; (1) The judicial powers of the Federation shall be vested in
the courts to which this section relates, being courts established
for the Federation. (2) The judicial powers of a State shall be
vested in the courts to which this section relates, being courts
established, subject as provided by this Constitution, for a
State.

This piece will not, unless as may become necessary, deal with
the exercise of legislative or executive power and accordingly,
will analyse the long-lasting strike by JUSUN with regard to
Judicial power only.

According to Professor Nwabueze in his very well celebrated
book; JUDICIALISM IN COMMONWEALTH AFRICA (1977); ‘The Expression
Judicial power, understood as the power which the state exerts in
the administration of public justice in contradistinction from the
power it possesses to make laws and the power of executing them, is
not in the least ambiguous. Furthermore, Professor Nwabueze
expresses the view that; ‘Seven different attributes are
identifiable in these definitions of Judicial power:

i. The existence of a dispute between two or more parties about
some existing legal right; an act, e.g, a contract or an industrial
award that only creates new rights by which future conducts is to
be regulated cannot therefore be judicial;

ii. A compulsory jurisdiction at the instance of the party to
enquire into the dispute; iii. A power to determine authoritatively
(i.e, Conclusively) the facts of the disputes; iv. A power to
determine authoritatively, the law relevant to the dispute; v. A
decision arrived at by the application of the relevant law to the
facts, and which by declaring the rights in question, finally
disposes of the whole dispute;

vi. This final determination binds the parties in the dispute;
vii. A power to enforce compliance with or obedience to the
decision.

The most authoritative Dictionary known to most lawyers, i.e The
Black’s Law Dictionary (10th Edition) similarly defines judicial
power to mean the authority vested in Courts and Judges to hear and
decide cases and to make binding judgments on them; the power to
construe and apply the law when controversies arise over what has
been done or not done under it.

For the avoidance of doubt, it will be important to emphasize at
this stage that the exercise of judicial power is an essential
attribute of Government (whether Federal or State). We must also
note that when the power to exercise that attribute of state power
is rendered impossible, then very serious legal considerations as
well as consequences which are not anticipated inevitably
arise.

The question which then arises is whether any trade union or
group of persons can prevent any government from exercising its
power or any component of his power, whether legislative, executive
or judicial. The answer will be clear when we look at the
definition of the word Strike. Section 48(1) of the Trade Disputes
Act states that; ”Strike means the cessation of work by a body of
persons employed acting in combination, or a concerted refusal or a
refusal under a common understanding of any number of persons
employed to continue to work for an employer in consequence of a
dispute, done as a means of compelling their employer or any
persons or body of persons employed, to accept or not to accept
terms of employment and physical conditions of work; and in this
definition:- (a) “cessation of work” includes deliberately working
at less than usual speed or with less than usual efficiency, and
(b) “refusal to continue to work” includes a refusal to work at
usual speed or with usual efficiency.”

By the same token, the Black’s Law Dictionary aforesaid defines
Strike to mean an organised cessation or slow down of work by
employees to compel the employer to meet the employees’ demands; a
concerted refusal by employees to work for their employer or to
work at their customary rate or speed, until the employer grants
the concession that they seek.

What the Trade Disputes Act (as well as the Black’s Law
Dictionary) contemplates is that a Strike will become necessary in
consequence of a Dispute ‘done as a means of compelling their
employer or any person or body of persons to accept or not to
accept terms of employment and physical conditions of work.’ If we
may ask, who is the employer of the JUSUN workers who are on
strike?

In addition, are those workers on strike because of a Dispute
with individual State governments or with a combination of all
State Governments, or has the strike arisen because of a dispute
with the Federal Government? Also relevant is the question of
whether the Judicial Staff who are on strike have any condition in
their individual or collective agreement relating to or arising
from ‘Judicial Autonomy’?

Irrespective of whatever answer you have, can the judicial
apparatus of any state be shutdown for as long as two months
because of the quest for Judicial autonomy as presented by JUSUN,
at least publicly? The answers to these questions will be provided
in the next installment to this piece.