An Appraisal of the Legality of the Right to Strike Under Relevant Nigerian Law vis-a-vis the Immunities Available to Trade Union for Torts Committed During Trade Dispute


By Afolabi Ayodeji Promise

1.0 Introduction

Labour laws are set of rules and regulations relating to the employment relationship between employees and employers. The main purpose of labour law is to protect employees’ rights whilst setting forth employers’ obligations and responsibilities. As such, the employment laws occupy a significant position in any society, because of the indispensable contribution of workers to both national and economic growth and development.[1] The absence of industrial harmony can adversely affect the nation’s growth, leading to both economic and political instability.[2]

The right to strike has a tremendous impact on employment relationship equilibrium, not only between the employers and employees and their organizations in the various sectors of the economy, but also in their capacity as a pressure group in acting as a counter-power to checkmate the excesses of the state. Thus, the right to strike determines not just the prospects for enjoying improvements in working and living conditions of employees but it is also a precondition for the sustenance of society on a just and democratic basis and enjoyment of other fundamental socio-economic and political rights.[3]

Nigerian labour law recognises the rights of trade unions to collective bargaining.[4] Collective bargaining is how workers seek to satisfy their economic and social interests. Section 91 of the Labour Act defines collective bargaining as “the process of arriving or attempting to arrive at a collective agreement”. Industrial action is a fallout from the failure of collective bargaining. “This is because when workers and employers engage in collective bargaining, there is no guarantee that the outcome will always be successful. Even where bargaining is successful, there is similarly no guarantee that the resulting agreement will be honoured. Consequently, unsuccessful bargaining or failure to adhere to agreed terms naturally leads to industrial action and the dislocation of industrial peace”.[5]

The questions now are, “what is the legality of the strike in the Nigerian labour jurisprudence?” “What is the consequential effect of industrial action on the contract of employment?” “Does the employer have any right against the employee embarking on industrial action?” “Is strike a breach of the contract of employment? What is the attitude of the court on industrial action?” This paper, therefore, seeks to answer the afore-stated questions in line with relevant Nigerian Statutory provisions and Judicial authorities.

2.0 Meaning of Strike or Industrial Action

There is a consensus amongst scholars that “the right to strike is an essential element in the process of collective bargaining.”[6] Lord Denning, M.R. gave a more comprehensive definition of the concept in the English case of Tramp Shipping Corporation v. Greenwish Marine Inc.,[7] where he defined a strike as a “concerted stoppage of work by men to improve their wages or conditions of employment, or give vent to a grievance or making a protest about something or the other or supporting or sympathizing with other workmen in such endeavour.”[8]

The Trade Dispute Act offers a definition of a “strike” as well, but its definition is restrictive in terms of coverage. The Trade Dispute Act defines a strike as:

The cessation of work by a body of persons employed acting in combination or concerted refusal under a common understanding of any member or persons employed to continue to work for an employer 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.[9]

Flowing from the above, the elements of a strike include the following: the intentional stoppage of work or withdrawal of service by workers; it must involve a group of workers, not merely an individual worker; and it must be aimed at winning some advantage or concessions from the authorities.[10]

3.0 Legal Framework for an Industrial Action in the Nigeria Legal Jurisprudence

In the Nigerian legal jurisprudence, the right to strike is recognized under the Trade Unions Act. The conditions which workers must fulfil before embarking on a lawful strike in Nigeria are contained in section 31(6) of the Trade Unions Act, LFN 2004,[11] as amended by the Trade Unions (Amendment) Act 2005; and Sections 4, 18 and 42 of the Trade Disputes Act, LFN 2004 (as amended). Section 31(6) of the Trade Unions Act, as amended provides as follows:

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No person, trade union or employer shall take part in a strike or lockout or engage in any conduct in contemplation or furtherance of a trade dispute unless

  • the person, trade union or employer is not engaged in the provision of essential services;
  • the strike or lockout concerns a labour dispute that constitutes a dispute of right;
  • the strike or lockout concerns a dispute arising from a collective and fundamental breach of contract of employment or collective agreement on the part of the employee, trade union or employer;
  • the provisions for arbitration in the Trade Disputes Act Cap T8 Laws of the Federation of Nigeria 2004 have first been complied with; and
  • in the case of an employee or a trade union, a ballot has been conducted by the rules and constitution of the trade union at which a simple majority of all registered members voted to go on strike.

From the above provisions, it is obvious that there are four important conditions that workers in Nigeria must fulfil before they can embark on a lawful strike. These are:

  1. The workers and their union must not be engaged in the provision of essential services;
  2. The strike must be in contemplation or furtherance of a labour dispute that must constitute a dispute of right;
  3. The provisions for arbitration in the Trade Disputes Act, Cap T8, LFN 2004 must be complied with;
  4. The union must have conducted a ballot at which a simple majority of all registered members voted to go on strike.[12]

The court held in the case of Union Bank of Nigeria & Ors v. Edet[13] that when employers and employees meet to negotiate and reach an agreement, it is done “in their capacity as bodies of certain institutions.”

Section 31(6)(b) of the Trade Unions Act, as amended, also requires as a condition for a lawful strike that the strike must be in contemplation or furtherance of a labour dispute that must constitute a dispute of right. The court in the case of Nigerian labour congress v. AG of the Federation & Ors[14] held inter alia; “government pricing policy introducing a price increase on the petrol and diesel does not qualify as a trade dispute.”

Section 31(6) (d) of the Trade Unions Act, as amended, further requires as a pre-condition for a lawful strike that the provisions for arbitration in the Trade Disputes Act must be complied with. The provisions for compulsory arbitration are contained in sections 4, 6 and 18 of the Trade Disputes Act as amended.

The court in the case of Eche v. State Education Commission, in interpreting the statute section 17(1)[15] took into consideration the use of “or” rather than “and” in the provision of the statute. Therefore, where employees have complied with the provisions of any of the subsections, they may proceed on strike to press for their claims. In the case, the public primary and post-primary school teachers in Anambra State took to industrial action after an attempt at mediation failed. The main issue for determination was whether or not the strike action was lawful. Araka CJ held that it was lawful. The learned Justice held as follows:

It is therefore not correct that if a strike is not to be considered as illegal, all the provisions of the various subsections … must be complied with by the worker.  It is sufficient, in my view, if the provisions of only one of the subsections have been fully complied with.  That is the effect of the word “or” that has been used after each subsection[16]

The Trade Unions Act, as amended, also requires “that a ballot must have been conducted by the rules or constitution of the trade union at which a simple majority of all registered members must have voted to go on strike” as a condition for a lawful strike.[17]

It is pertinent to note at this juncture that the Trade Union Act,[18] prohibits certain categories of employees (essential service workers) from forming or joining trade unions.[19] The concept of essential services connotes the idea that certain services are of fundamental importance to the community that their disruption will have harmful consequences. The public interest in the uninterrupted operation of these services, therefore, outweighs the consideration that workers should be free to withdraw their labour and that special provisions should apply to them, either preventing industrial action being taken at all or imposing restrictions upon its conduct.[20] Although there have been instances where essential workers have had to engage in industrial action in Nigeria.

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4.0 Industrial Action and the Remuneration of Striking Workers

Government or employers in a bid to forestall an intending or check an on-going industrial action employ the no-work-no-pay rule. The question then is whether or not a striking worker is entitled to remuneration?[21]

Section 43 of the Trade Dispute Act provides that where an employer locks out his employees, the employees are entitled to wages and other applicable remuneration for the period of the lockout and this period must not prejudicially affect any rights of the employee, being rights dependent on the continuity of the period of employment.[22] Conversely, an employee who embarks on industrial action in breach of the provision of the act is not entitled to wages and other applicable remuneration for the period of the strike, and such period does not count to reckon the period of continuous employment and all rights dependent on continuity are prejudicially affected accordingly.[23] According to Akande, if workers are not in violation of section 18(1) of the Trade Dispute Act, their action would be considered legal and they would be entitled to remuneration. He further stated that the attitude of the Government and some Management boards on no-work no-pay rule as a means of suppressing industrial actions has not and cannot be a viable solution to labour problems. This is because the government end up paying accumulated wages which have accrued to workers during the period of the strike.[24]

5.0 Immunities Available to Trade Union Officials for Torts Committed during Trade Dispute.

A tort is an act or omission which causes injury or harm to another and amounts to a civil wrong for which courts impose liability.[25]  In the course of industrial action, an employee may engage in certain activities which can infringe on the right of another person. The question may be asked that what is the liability for an act committed against another in the furtherance of industrial action?

One of the sole purpose of law in any society is to maintain law and order and there cannot be any justification for any act that deviates from the law and order of the society except where it is provided for under the law. Lord Halsbury opined that “intimidation, violence, molestation, or the procurement of people to break their contracts, are all of the unlawful acts; and I entertain no doubt that a combination to procure people to do such acts is a conspiracy and unlawful”. [26]

As against Newton’s third law of motion that for every action there is an equal or opposite reaction, the Trade Unions Act has provided some exception by offering legal immunity to unionist in contemplation or furtherance of the trade dispute. Section 44(1) of the Act provides that any “act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on… the ground only that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or labour as he wishes.” The Act further provides thus: “Nor will any such persons be liable in tort on the ground that the act “consists in his threatening that a contract of employment (whether one to which he is a party or not) will be broken”[27] or “that… he will induce some other person to break a contract of employment to which that other person is a party.”

Certain category of contracts has been extended to the field of tort by virtue of Section 24 of the Act which provides legal protection for the unionist “in respect of any tortious act alleged to have been committed by or on behalf of the trade union in contemplation of or in furtherance of the trade dispute.” A trade union is so protected so long as the wrongful act be shown to have been “committed in contemplation of or in furtherance of a trade dispute.” In Isaac Jeje v Kasumu Kadiri & Ors.,[28] Nnaemeka_Agu, JCA held that an action against a trade union for a tort committed in the course or contemplation of a trade dispute by the trade union or any person on its behalf is not maintainable by the provisions of section 23 of the Trade Unions Act 1973.

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It should be noted however that the immunity does not cover unionists whose industrial action acts threatens the peace of the society by that action. The Supreme Court in the case of Salawu Ajao v Karimu Ashiru & Ors.,[29] unequivocally held that Section 42(1) of the Trade Unions Act did not protect criminal acts.

6.0 Conclusion

Industrial action is a universal phenomenon but the concept is gradually fading out, if not completely, in developed countries as a result of the alertness of the countries’ Government to their responsibilities as well as their respect for collective bargaining and agreements. Industrial action remains one of the effective means for the protection of workers in developing countries particularly Nigeria. According to Akinseye-George, “the right to strike no matter how unpalatable to management, is part and parcel of Nigerian labour law. The bitter truth is that workers would go on strike whatever the law may have to say about it. This is the reason why all the attempts to prohibit workers strike in Nigeria even during military dictatorship have proved abortive”.

Afolabi Ayodeji Promise writes from Ado-Ekiti, Ekiti state. Nigeria. He has an interest in Legal Research, labour and Industrial Law, Employment Law, Insurance Law, Tax Law, Corporate law and Public Law.


He can be reached at:

[1] E.E., Uvieghara, Labour law in Nigeria , Malthouse Law books, 2000

[2] Ibid

[3] Chris C Wigwe, “The Extent of The Right To Strike In  Nigerian Labour Law” PDF available at: accessed November 26, 2020

[4] Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees that “everyone shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.” See also, section 3 (1) Trade Dispute Act.

[5] O. V. C. Okene, “Collective Bargaining, Strikes and the Quest for Industrial Peace in Nigeria” PDF

[6] Crofter Handwoven Harris Tweed & Co. v. Veitch, (1942) 1 All ER 142 at p. 159

[7] (1975) ALL E.P.898

[8] Ibid

[9] section 48, of the Trade Dispute Act Cap T8, LFN 2004

[10] Akanle K.B, “An Appraisal of the constitutionality of strike and its effect on remuneration of workers” (2015) 6 EKSULJ.

[11] Trade Unions Act CAP. 437 L.F.N 1990 ACT CAP.T14 L.F.N 2004

[12] Gogo George Otuturu, “Trade Unions (Amendment) Act 2005 and the Right to Strike in Nigeria: An International Perspective” (2014) 8(4), Labour Law Review NJLIR. Pp. 35

[13] (1993) 4 WLR (Pt. 287) 288, 298, CA.

[14] (2004) 1 NLLR (pt.3) 541, 581

[15] Trade Disputes Act 1990 (now section 18(1) of the Trade Disputes Act 2004)

[16] (1983) 1 FNR 386

[17] Ibid

[18] Trade Unions Act LFN 2004

[19] Section 11, Trade Dispute Act, See further Section 31(6)(a) of the Trade Unions Act

[20] Gogo George Otuturu, “Trade Unions (Amendment) Act 2005 and the Right to Strike in Nigeria: An International Perspective” (2014) 8(4), Labour Law Review NJLIR. Pp. 35

[21] Akanle K.B, “An Appraisal of the constitutionality of strike and its effect on remuneration of workers” (2015) 6 EKSULJ.

[22] Section 43(2) Trade Dispute Act, Cap T8 LFN, 2004

[23] Ibid, Section 43(1)

[24] Op.cit., Akanle K.B

[25] Definition of Tort available on accessed 4th December, 2020

[26] Mogul Steamship Co. Ltd. v. McGregor, Gow & Company (1892) A.C. 25 at p. 37.

[27] Section 42(1)

[28] (1987) 4 NWLR (Pt. 65) 460, 479, C.A.

[29] (1973) ANLR 708


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