Law News
After strike, no laughter yet for Lagos judiciary workers

It was a clear case of “he who fights and runs, lives to fight another day,” when the Lagos State chapter of the Judiciary Staff Union of Nigeria pulled out of the nationwide industrial action directed by its National Executive Committee.

The strike, which effectively began on January 5, 2015, was aimed at forcing governments across the 36 states of the federation to respect and effect Section 162 (9) of the Nigerian Constitution, which preserved the financial autonomy of the judiciary.

Justice Adeniyi Ademola of an Abuja Federal High Court had, on January 13, 2014, delivered judgment upholding this constitutional provision.

While directing its members all over the country to proceed on the indefinite strike, the national leadership of JUSUN vowed that courts at all levels would remain shut for as long as government at both the federal and state levels remained in default of Ademola’s judgment.

But the JUSUN’s NEC directed its members in the federal courts to go back to work on January 26, stating that it had gotten the Federal Government’s undertaking to abide by the judiciary autonomy.

It, however, stated that the strike would continue in the various states until similar commitment was made.

Of all the state chapters of JUSUN, Lagos was the first to suspend the strike and went back to work on February 2.

But the national leadership has distanced itself from the decision of the Lagos State chapter to suspend the strike at the time it did.

The National President of JUSUN, Mr. Marwan Adamu, told one our correspondents that the national leadership of the union did not approve of the decision to suspend the strike, as no written commitment towards meeting the union’s demand was obtained from the state government before the Lagos chapter returned to work.

The Lagos JUSUN, had in a press release on Saturday, January 30, 2015, said it suspended the strike, which was 25 days old at the time, in view of “ongoing talk and understanding with the Lagos State Government on issues affecting the judiciary in particular, and the union in general.”

The statement signed by its Chairman, Emmanuel Abioye; its Assistant Secretary, Agboola Olusegun; and its Public Relations Officer, Gbose Adebayo, added that the strike was being suspended in the interest of the people of Lagos State.

The union, however, reiterated that “the financial autonomy of the judiciary is paramount and sacrosanct to us.”

But shortly after the announcement, in an apparent bid to clear any form of ambiguity about the government’s stance, the Lagos State Attorney General and Commissioner for Justice, Mr. Ade Ipaye, in a text message, said that by virtue of the Lagos State Judiciary Self-Accounting Law, 1995, Lagos considered itself to have already or long implemented the said financial autonomy of the judiciary.

Ipaye said, “At the meeting with JUSUN, we made it clear that Lagos State already had a Judiciary Self-Accounting Law since 1995, which is being implemented to date with the judiciary getting its recurrent vote as first line charge on consolidated revenue fund once a month.

“We explained that capital fund cannot, however, be transferred monthly as it has to be accumulated and used for many projects programmed for simultaneous implementation. Besides, projects are better managed by the Ministry of Works, which was set up to serve all arms of government.

“In the end, our position was that Lagos State was already implementing the provisions on the autonomy of the judiciary.”

While the strike lasted, with all the courts in the state shut down, lawyers groaned and the government lamented, saying the situation could foster a state of lawlessness.

Given any opportunity, Ipaye did not hesitate to vent the frustration of the government over the paralysed justice sector in the state.

But besides the interest of the public, the decision by the Lagos JUSUN to sheath its sword and suspend the strike, albeit in the absence of any concrete or direct commitment from the government, was also linked with salaries payment.

When it dawned on the union that government had paid the January salaries of civil servants in the state, including those of the magistrates, and that the judiciary workers were exempted, the union quickly convened what it called an “Emergency Congress” of all its members.

In the said congress, which held at Ikeja, according to one of the court registrars, who craved anonymity, the union’s leadership asked the members whether to suspend or proceed with the strike.

“The truth was that people felt that the non-payment of our salaries was the more reason why we should continue with the strike; besides, the government had not met our demands,” the source said.

She, however, added that the union’s leadership felt that it was better to suspend the strike.

Though, it has not been categorically stated, the body language of the government was that the workers were not entitled to any salary for January, having down tooled for the most part of the month.

An expert in Labour Dispute Law, Mr. Enobong Etteh, said the law was clear on the principle of “no work, no pay.”

According to him, in the absence of an agreement between the workers and the government prior to the suspension of the strike, they could not fault the government if it chose not to pay them for the strike period.

Also, an expert in Business Law, Mr. John Aina, stated emphatically that the government would find justification under Section 43 of the Labour Dispute Act of the Federation if it chose not to pay the workers.

Aina, who practices both in Nigeria and the United Kingdom explained, “In employment Law, the employer is under an obligation to pay wages; it is an implied term of contract. And failure to pay wages is a breach of obligation on the part of the employer, wherein the employee has a cause of action that is called unlawful retention of wages.

“However, the position of Section 43 of the Labour Dispute Act of the Federation is that when an employee goes on strike, he is not legally entitled to any wages or salaries or any other form of remuneration for the period of the strike.”

But Adamu attributed the treatment meted out to the workers by the Lagos State Government to the failure of the leadership of the Lagos chapter to follow the directive of the national leadership of the union in suspending the strike.

As of last week Wednesday, Adamu said the national leadership of the union had cleared the suspension of the strike in only 12 states which their governments had given written commitment to meet the demands of the union.

According to him, the states are Jigawa, Kano, Katsina, Kebbi, Delta, Bayelsa, Rivers, Ekiti, Enugu, Bauchi, Kwara, Kogi and Niger.

Of the 13 states where workers have returned to work, Adamu said only the Lagos JUSUN backed off from the strike without the approval of union’s national headquarters.

The other states where the courts have remained shut since January 5, 2015 when the industrial action started nationwide are Zamfarara, Sokoto, Kaduna, Edo, Cross River, Akwa Ibom, Ekiti, Osun, Oyo, Ogun, Ondo, Ebonyi, Abia Anambra, Taraba and Imo.

Other states where the judiciary workers have not returned to work are Gombe, Borno, Yobe Adamawa, Nasarawa and Benue.

“They (Lagos chapter of JUSUN) are now in trouble because of the no-work-pay policy the government is implementing. They are now coming back to us to help them to address the issue,” Adamu said.

Perhaps, having realised the weakness or otherwise of the workers’ case, the Chief Judge of the state, Justice Olufunmilayo Atilade, resorted to begging Fashola to release the workers’ salary.

Atilade, in her public plea on February 17 during the inauguration of the Roseline Omotoso Court in Ikeja, Lagos, said, “We use this medium to appeal to his Excellency, Governor Babatunde Raji Fashola, SAN, to give the Lagos State judiciary its financial autonomy as provided for under the 1999 Constitution of the Federal Republic of Nigeria.

“We also make a very passionate appeal to his Excellency to release the January salary of judiciary staff, who went on a nationwide strike with their colleagues.

“Your Excellency, the workers saw the need to call off the ongoing nationwide JUSUN’s strike, other states are still on strike but they are being paid.”

But, in his response, Fashola touched every issue, including objecting to the viewpoint that he had rejected the judiciary autonomy, he, however, made no commitment whatsoever as to the workers’ January salaries.

A Lagos-based lawyer, Mr. Wahab Shittu, said the plea by the Chief Judge to the Governor smacked of everything that the judiciary autonomy seeks to prevent.

It remains the popular view that Fashola’s administration is one that has shown favourable disposition towards the well being of the judiciary as demonstrated not only in building of courtrooms across the state, appointment of no fewer than 14 judges since inception of office, second-to-none welfare package for the judicial staff, as well as investment in trainings and workshop for the judiciary workforce.

But Shittu insisted that anything short of full compliance with financial autonomy for the judiciary as spelt out in Section 162 (9) of the Constitution was not good enough.

According to him, fair judgment at all times would never be guaranteed as long as the judiciary was tied to the apron strings of the executive.

Shittu said, “There are a lot of factors negating the so-called financial autonomy of the judiciary. For instance, while the National Judicial Council is responsible for the salaries of the judges, the state government takes care of building of courtrooms, supply of infrastructure, procurement of vehicles and all the other factors that go to support the administration of justice. And so you find a situation where effective justice administration is tied to the goodwill of the state governments.

“If the various state governors now fund these facilities, don’t we think that they would also be in a position to influence the judiciary? Because he who pays the piper, dictates the tune.”

Fashola, however on February 17, expressed the view that abiding by or carrying out Ademola’s judgment to the letters would be a herculean task for the state government.

It is thus clear that the fight by JUSUN for the implementation of the judgment is far from finished in Lagos. This is even more so as the state said it had lodged an appeal against Ademola’s judgment.

Ipaye had sometime said, “While we have nothing against judicial autonomy in all its ramifications, we are surprised by the plan to allocate the Federation Account other than to the federal, state and local governments as envisaged by the constitution.

“Apart from being in clear breach of section 162(3), this plan does not disclose a revenue allocation formula upon which the deduction is to be based. As far as we know, the existing allocation formula only contemplates revenue sharing between the federal and state governments, with the latter also taking a share for the benefit of its local government councils.”

Shittu was of the view that there is yet to be adequate legal framework to accommodate the yearnings of the judiciary workers.

He said, “Maybe the Constitution has not adequately addressed the yearnings and aspirations of the judiciary workers. We might need to sponsor a bill to specifically address this because it has been a recurring decimal. You find the judiciary workers downing tools all the time leading to the closure of courts, with adverse consequences on our justice delivery system.”

This same position was taken by a Senior Advocate of Nigeria, Chief Niyi Akintola, who said the problem went to the root of Nigeria’s system of government, which he described as quasi-federalism.

Akintola said, “The issues are much more fundamental than people are looking at them. These issues border more on the structure of our governance. Nigerians have to make up their minds about what we really want; whether we want federalism or the unitary form of government.”

However, Adamu, on Thursday, said JUSUN might resort to instituting a fresh legal action against all the state governments which had not shown commitment towards complying with the court judgment.

He said the union was already consulting on how to institute garnishee proceedings against such state governments.

With the garnishee proceedings, the union would be able to ask the court for an order directing the bankers to the various state governments to remit to the NJC funds standing to the credit of the state judiciary in the government accounts.

“We are making consultations, we are considering filing garnishee proceedings against state governments that had not given us any written undertaking. We will also institute the proceedings against state governments who are not fulfilling their promises,” he said.

On the ongoing strike in the defaulting states, Adamu said, “States facing various threats and intimidations from their state governments, including non-payment of salaries are to continue with the struggle as the union among other opinions is considering taking appropriate legal action to address each case on its merit.

“State branches are not to submit the struggle to the whims and caprices of the Nigerian Bar Association chairmen such as in Abia where they (the chairmen) have arrogated to themselves the power to determine conditions for suspending the strike. Any strike suspended without due process shall be nullified by the national headquarters of JUSUN.

“The union remained focused and will take all appropriate legal steps to enforce its resolutions on the strike for the implementation of the constitutional provision of Judiciary autonomy confirmed by the court judgment of 13th January, 2014”.

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