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.

PART 2...............

In the first installment of this piece we discussed the fundamentals of judicial power as well as dimensions of strike action and raised three questions to wit; Who is the employer of the JUSUN workers who are on strike?;

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 whether the Judicial staff who are on strike have any condition in their individual or collective agreement relating to or arising from ‘Judicial Autonomy’? and Can the judicial apparatus of any state be shut down for as long as two months because of the quest for Judicial autonomy as presented by JUSUN, at least publicly?

These questions will now be answered seriatim. According to the 10th edition of the Blacks Law Dictionary; ‘Employer’ means ‘A person, company or organisation for whom someone works, especially one who controls and directs a worker under an express or implied contract of hire and who pays the worker’s salary or wages.’ In furtherance of the question raised, it must be pointed out that there are three necessary institutions provided for by the extant constitution that must, at face value, seem to wear the garb of ‘employer’ either of Federal or State Judiciary workers.

By virtue of Item 21 of Part 1, Schedule 3 to the 1999 Constitution, the National Judicial Council has power to recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers; recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph © of this paragraph, and to exercise disciplinary control over such officers. On the other hand, Item 13 of the same schedule in paragraph C thereof, provides that the Federal Judicial Service Commission has power to appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission.

Similarly, Item 6 © of Schedule 3 to the 1999 Constitution provides that the Judicial Service Commission of a State has the power to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts and all other members of the staff of the judicial service of the State not otherwise specified in this Constitution.

A combined reading of these statutory provisions reveals that while the State Judicial Service Commission has the power to advise the National Judicial Service on persons suitable for appointment to judicial offices at the state level; the Federal Judicial Service Commission performs similar functions at the federal level. Whilst the Federal and State Judicial Service Commission recommend person suitable for employment into Judicial Offices to the National Judicial Service Commission, the Judicial Service Commission in turn recommends to the President for appointment as a Justice of Superior court of record, from a list of persons submitted to it by the Federal Judicial Service Commission and also recommend to State Governors from among the list of Persons submitted to it by the State Judicial Service Commission, persons fit for appointment into the State judicial arm of the state.

It is safe to say that by virtue of Item 5(c) of Part II of the third schedule to the Constitution, the State Judicial Service Commission has powers to appoint, discipline and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts and all other members of the staff of the judicial service of the state not otherwise specified in this Constitution.

It is also safe to say that recourse to the phrase; ‘all other members of the staff of the judicial service of the state not otherwise specified in this Constitution’.as contained in the item implies Court clerks, bailiffs, research assistants and all other Court officials. It is therefore also safe to say that the State Judicial Service Commission is responsible for the employment and discipline of State judicial workers.

Similar provision can be found in Item13 ( c) of Part I of the 3rd schedule of the Constitution which provides thus;appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission. It is my opinion that the Federal Judicial Service Commission is responsible for the appointment, dismissal, and discipline of judicial workers of superior Courts. Although Item 21 (e) of the 3rd schedule of the Constitution states that the NJC is empowered to collect, control and disburse all moneys, capital and recurrent, for the Judiciary.

Based on these provisions, it is almost impossible to dispute the point that for Federal Judiciary workers, their employer is the Federal Judicial Service Commission, while it is similarly not in doubt that for State Judiciary employees, their employer must be the State Judicial Service Commission. The relevant question which JUSUN must answer is why the decision was made to shut down the totality of the Judicial apparatus in this very fragile environment (at this time) when many Nigerians are presumed to need the services of “The last hope of the Common man.”

The next question relates to whether the workers went on strike because of a Dispute with individual State governments or with a combination of all State Governments, or did the strike arise because of a Dispute with the Federal Government? Also relevant is the question, whether the Judicial Staff who are on strike have any condition in their individual or collective agreement relating to or arising from ‘Judicial Autonomy’? The answer must similarly be obvious, since it has been said that the disputants ought to have been Judiciary workers versus a combination of State Judicial Service Commissions.

The importance of the Judiciary as a branch of government was emphasized as far back as 1962 in the following words: ‘Section 21, subsection (1) of the Constitution is important in that it confers on every person with a grievance the right of access to recourse to the Courts. The section makes it practically impossible for the doors of the Court to be shut against anyone desiring to take his grievances there… it acts as a bulwark against the tendency to prohibit or oust the jurisdiction of the Courts where there has been either an infringement of a civil right or an imposition of civil obligation. ( Udoma JSC, (as he then was) in Burma v. Sarki (1962) All N.L.R 772 @ 780). If as was suggested in that decision, it was wrong for anybody to be shut out from a desired approach to the judiciary, why must it be done by resort to a strike?

While it is necessary to commend JUSUN for calling off their prolonged strike, the gratuitous advice which must be provided is that in the future, the JUSUN must evaluate what has happened in the past two months and use the outcome to determine the value or weight to be placed on any decision to shut down the judicial apparatus which inevitably is the essence of the third arm of government. The independence of the Judiciary cannot be questioned, but it is also on its own, a process that must be garnered and nurtured.