Court orders ASUU back to work (full judgment)
NICN – JUDGMENT
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP, HON. JUSTICE P. I.
HAMMAN (VACATION JUDGE)
DATE: 21ST SEPTEMBER, 2022 SUIT NO: NICN/ABJ/270/2022
BETWEEN:
1. FEDERAL GOVERNMENT OF NIGERIA -CLAIMANTS/ APPLICANTS
2. MINISTER OF EDUCATION
AND
ACADEMIC STAFF UNION OF UNIVERSITIES
(ASUU) -DEFENDANT/RESPONDENT
RULING
1.0. By a letter dated 8th of September,
2022 the Honourable Minister, Federal Ministry of Labour and Employment
forwarded to this Court a Referral Instrument in respect of the trade dispute
between the parties for adjudication pursuant to section 17 of the Trade
Disputes Act, Cap. T8, Laws of the Federation of Nigeria (LFN), 2004. The
questions for determination and the reliefs sought by the Claimants are as
stated in the Referral Instrument dated 7th September, 2022 and the Claimants’
supporting originating processes filed on the 12th of September, 2022.
1.1. This Ruling is in respect of the
Claimants/Applicants’ Motion on Notice for Interlocutory Injunction dated and
filed on the 12th of September, 2022. The application which is brought pursuant
to sections 6(a) and (b) and 254C(1)(C) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended), section 7(1)(b) of the National
Industrial Court Act, 2006, Order 17 Rule (1), (13) and Order 22 Rule 1(1) of
the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and
under the inherent jurisdiction of this court prays for the following reliefs:
1. An order of this Honourable Court
granting an interlocutory injunction restraining the Academic Staff Union of
Universities, by themselves, members, agents, servants, privies or howsoever
called from taking further steps and doing any act or otherwise continuing with
the indefinite strike or any strike action pending the hearing and
determination of the suit/referral to this Honourable Court dated 8 September
2022 made at the instance of the Minister of Labour and Employment as a matter
of national interest pursuant to his powers under Section 17 of the Trade
Disputes Act.
2. And for such further order(s) as this
Honourable Court may deem fit to make in the circumstances.
1.2. The grounds for the Application are as
follows:
1. The Honourable Minister of Labour and
Employment by virtue of the powers conferred on him by Section 17 of the Trade
Disputes Act, Cap T8, Laws of the Federation of Nigeria referred to the
National Industrial Court, for determination in the national interest, the
dispute between the Federal Government of Nigeria and the Academic Staff Union
of Universities (ASUU) in connection with the prolonged strike embarked upon by
ASUU since 14 February 2022.
2. Section 18 (1) € of the Trade Disputes
Act expressly provide that ‘a worker shall not take part in a strike in
connection with any Trade Dispute where the dispute has subsequently been
referred to the National Industrial Court under Section 14 (1) or 17 of the
Act.’
3. Section 254C (1)© of the Constitution of
the Federal Republic of Nigeria 1999 (As Amended), Section 7(1) (b) of the
National Industrial Court Act and the Rules of this Court, particularly Order
17 Rules (1), (14) and Order 22 Rule 1 confer on this Honourable Court the
powers to grant an interlocutory order of injunction to restrain any person or
body from taking part in any strike, lockdown, lockout or industrial action or
any conduct in furtherance of a strike, lock down, lockout or any industrial
action and matters connected therewith or related thereto. Also Order 17 Rule
13 of the Rules of this Honourable Court conferred on this Honourable Court the
powers to act in any manner that it considers expedite on the circumstances in
order to achieve the objectives of the Act and the Rules of the Court in the
exercise of its powers and in the performance of its functions.
4. It is of utmost necessity and urgency
that this application be granted having regards to the incalculable damages
being done to innocent citizens of Nigeria from day to day locked out of public
Universities and unquantifiable damages being done to educational development
and infrastructure by the strike of the Academic Staff Union of Universities
which has continued unabated.
5. Every single minute, hour and day counts
in factual destruction of unquantifiable intellectualism and security risks
associated with the deprivation to innocent students who are non-parties to the
dispute between the parties in this referral.
6. The strike has occasioned tremendous and
unquantifiable hardship putting the lives, values and wellbeings of millions of
Nigerians and non Nigerians admitted in public universities in Nigeria in
jeopardy forced to stay at home and in danger.
7. The balance of convenience is in favour of the
Federal Government and in favour of innocent Nigerians in public universities
who are from day to day deprived of education, livelihood, wellbeing and
subjected to unquantifiable risks by the strike.
8. Only this Honourable Court can stop the
irreparable losses and damages foisted on the public universities of the
Federal Republic of Nigeria by the indefinite strike action and an
interlocutory injunction shall stop the irreparable losses in the interlocutory
pending the hearing and determination of the substantive suit/referral before
this Honourable Court.
9. It is of extreme necessity to avert the
continuing irreparable losses and dames(sic) against the Federal Government of
Nigeria, against educational infrastructure and development in Nigeria which
may occur before the final determination of the suit/referral directly before
this Honourable Court is heard and determined.
10. It is of extreme necessity that this
court intervenes.
11. The Honourable Court has the power to
grant this application.
1.3. In support of the application is an
affidavit of 21 paragraphs deposed to by Okechukwu Nwamba (a Legal Officer in
the Federal Ministry of Justice on posting to the Federal Ministry of Labour
and Employment as the Legal Adviser). The Claimants/Applicants also filed an
Undertaking as to Damages of five (5) paragraphs deposed to by Okechukwu Nwamba
(a Legal Officer in the Federal Ministry of Justice on posting to the Federal
Ministry of Labour and Employment as the Legal Adviser) on the 12th of
September, 2022. There is also an Affidavit of Extreme Urgency of 19 paragraphs
deposed to by one Suleiman Jibril (a State Counsel with the Federal Ministry of
Justice Abuja) on the 13th of September, 2022.
Annexed to both the affidavit in support of the Application and the
Affidavit of Extreme Urgency are the following documents:
i. Academic Staff Union of Universities
(ASUU) letter titled: Re: Declaration of Four-Week Roll-over strike action
dated 9th of May, 2022 --------
exhibit 1.
ii. Academic Staff Union of Universities
(ASUU) letter titled: Re: Declaration of Four-Week Roll-over strike action
dated 29th of August, 2022
-------- exhibit 2.
iii. Referral Instrument to this court
dated 7th of September, 2022 and signed by Senator (Dr.) Chris Nwabueze Ngige,
OON (Honourable Minister of Labour and Employment ------ exhibit 3.
1.4. In compliance with the Rules of this
court, the Claimants/Applicants also filed a Written Address wherein the
learned Senior Counsel to the Claimants/Applicants J. U. K. Igwe, SAN submitted
these two (2) issues for the determination of the court, to wit:
i. Whether this Honourable Court has powers
to grant the Reliefs sought by the Claimant/Applicant?
ii. Whether the Applicant has met the
requirements for the grant of an Interlocutory Injunction in its favour?
1.5. It is submitted on issue one (1) that
this court has the powers to grant the interlocutory reliefs being sought by
the Applicants for the preservation of the res pending the final determination
of the suit. The court was urged to exercise its discretion in favour of the
Applicants and grant the application. References were made to section 254C(1)©
of the 1999 Constitution, section 7(1)(b) of the National Industrial Court Act,
2006, Order 22 Rule 1 and Order 17(1)(1) of the Rules of this court 2017, as
well as the case of Military Administrator, Federal Housing Authority &
Anor V. Aro (1991) LPELR-3185(SC).
1.6. With respect to issue two (2), the
learned silk for the Claimants/Applicants referred the court to the apex court
decision in the case of Akinpelu V. Adegbore & 3 Ors (2008) 4-5 SC (Pt. II)
pages 96-98 where the court listed the factors to be considered in an
application of this nature for interlocutory injunction to include:
i. The Applicant must show that there is a
serious question to be tried.
ii. The Applicant must show that the
balance of convenience is on his side; that is, that more justice will result
in granting the application than in refusing it.
iii. The Applicant must show that damages
cannot be an adequate compensation for his damage or injury, if he succeeds at
the end of the day.
iv. The Applicant must show that his
conduct is not reprehensible, for example that he is not guilty of any delay.
v. No order for an interlocutory injunction
should be made on notice unless the Applicant gives a satisfactory undertaking
as to damages save in recognized exceptions; and
vi. Where a court of first instance fails
to extract an undertaking as to damages, an appellate court ought normally to
discharge the order of injunction on appeal.
1.7. On the requirement for serious issues
to be tried, learned silk drew the court’s attention to the questions for
determination and the reliefs in the substantive suit, and paragraphs 6 – 9 of
the affidavit in support of the application, and argued that the Applicants
have raised serious issues to be determined by the court by virtue of section
17 of the Trade Disputes Act which provides for reference to this court by the
Minister of Labour and Employment. That the legal rights of both Nigerians and
non-Nigerians in the public universities to receive education that they have
paid for is being threatened by the Defendant. That the strike action has
caused damages to dormant infrastructure in the public universities as well as
damage to intellectualism and deprivation against innocent persons who are not
parties to the suit and who the Applicants have the constitutional
responsibility to protect. See The Military Administrator, Federal Housing
Authority & Anor V. Aro (supra) and Obeya Memorial Specialist Hospital V.
Attorney General of the Federation (1987) 3 NWLR (Pt. 60) 325.
1.8. On the requirement of balance of
convenience, learned Senior Counsel reproduced paragraphs 11 – 16 of the
affidavit in support of the application, and argued that, apart from the
Applicants the entire nation including innocent citizens and non citizens will
lose tremendous and unquantifiable damages and wastage of academic and life
advancement programmes that cannot be regained. That the balance of convenience
is in favour of granting the Application because if the application is refused,
irreparable hardship will be caused to the Applicants and innocent Nigerians
and non Nigerians. See The Military Administrator, Federal Housing Authority
& Anor V. C. O. Aro (supra) at pages 11 0 12 and Obeya Memorial Specialist
Hospital & Anor V. Attorney General of the Federation & Anor (supra) at
page 344.
1.9. With respect to the requirement of
inadequacy of damages as compensation to the Claimant for injury caused by the
Defendant if the Claimant succeeds at the trial, learned Silk referred to
Grounds 4, 5, 6, 8 and 9 of the Application and paragraphs 6, 7, 8, 9, 10, 11,
12, 13, 16, 19 and 20 of the affidavit in support of the Application, and
submitted that the injury being inflicted on the Federal Republic of Nigeria
and innocent citizens by the Defendant/Respondent is irreparable and no amount
of damages can adequately compensate the Applicants and all students in public
universities in the country should the defendant/respondent continue with the
strike which started since 14th February, 2022. The court was urged to hold
that the Applicants and innocent citizens the Applicants have the
constitutional obligation to protect will suffer irreparable and unquantifiable
damages if the Defendant/Respondent is not restrained from continuing with the
strike action pending the hearing and determination of the substantive suit.
See Obeya Memorial Specialist Hospital & Anor V. Attorney General of the
Federation & Anor (supra) at page 344 lines C-D.
1.10.On the requirement of the Applicant’s
conduct, it was submitted that the Federal Government of Nigeria through the
Minister of Labour and Employment took the appropriate step of invoking the
provisions of section 17 of the Trade Disputes Act in referring the matter to
this court for adjudication. That since the dispute was referred to this court
on the 8th of September, 2022, any strike by the Respondent after the referral
is illegal. The learned Silk reproduced the provision of section 18(1) of the
Trade Disputes Act and argued that, where a statute prescribes for a particular
way of performing an act or refraining from a particular conduct, only that
course and no other is legitimate. That in this case since the Minister of
Labour and Employment has transmitted notice of the dispute to this court
pursuant to section 17 of the Trade Disputes Act, an injunction ought to be
granted and enforced against any worker who is on strike. The court was finally
urged to grant the Application. See Corporate Ideal Insurance Ltd V. Ajaokuta
Steel Company Limited & 2 Ors (2014) 2 SC (Pt. 1), Wada & 2 Ors V.
Bello (2016) 17 NWLR (Pt. 1542) 379 at 7453 lines D-F and Asika & 3 Ors V.
Atuanya (2013) 7 SC (Pt. IV) 25 at 39 lines 10-30.
1.11. It is pertinent to note that at the
hearing of this application on Monday 19th of September, 2022, the learned
Senior Counsel for the Claimants/Applicants submitted by way of adumbration
that paragraphs 1 – 8 of the Counter-Affidavit relate only to the substantive
suit and therefore irrelevant to this application. That the presence of the
Federal Government in the suit covers all the parties listed in the Referral
Letter of 8th September, 2022. The court was urged to discountenance those
paragraphs, relying on the case of University Press Ltd V. Martins (2000) 2 SC
125 at 129-130.
1.12. It was further argued
that contrary to the arguments of the learned Senior Counsel for the
Defendant/Respondent that paragraphs 7 – 20 of the supporting affidavit offend
section 115 of the Evidence Act, it is paragraphs 3 – 8 of the Counter-
Affidavit that are in violation of section 115 of the Evidence Act. Learned
silk urged the court to depart from the provisions of the Evidence Act in line
with section 12(2)(b) of the National Industrial Court Act, 2006,
discountenance the Counter-Affidavit and grant the Application.
1.13. In opposition to the
application, the Defendant/Respondent filed a Counter-Affidavit of 9 paragraphs
deposed to by Prof. Victor Emmanuel Osodeke (a professor of Soil Science at the
Michael Okpara University of Agriculture, Umudike and the President of the
Defendant/Respondent) on the 16th of September, 2022. Annexed to the Counter
Affidavit are the following documents:
i. Academic Staff Union of Universities
(ASUU) document titled, “Highlights of Events and Demands in the Current Strike
Action” --- exhibit ASUU 1.
ii. Agreement between The Federal
Government of Nigeria (FGN) and The Academic Staff Union of Universities (ASUU)
----- exhibit ASUU 2.
iii. Agreement between The Federal
Government of Nigeria (FGN) and The Academic Staff Union of Universities
(ASUU), May, 2021 ----- exhibit ASUU 3.
iv. Memorandum of Action at the end of the
conciliation meeting between representatives of Federal Government/Academic
Staff Union of Universities held on September 18, 2017, at the Conference Room
of the Honourable Minister of Labour & Employment, Abuja ------ exhibit
ASUU 4.
v. Resolutions reached at the meeting
between Federal Government and Representatives of the Academic Staff Union of
Universities (ASUU) chaired by the President and attended by the leadership of
the Nigerian Labour Congress (NLC) Trade Union Congress (TUC) of Nigeria held
at the State House Abuja on 4th November, 2013 ----- exhibit ASUU 5.
vi. Letter of declaration of four-week
roll-over strike action by ASUU dated 14th February, 2022 and addressed to the
Hon. Minister, Federal Ministry of Education ---------- exhibit ASUU 6.
vii. Notice of Meeting by
FGN/University-Based Unions 2009 Agreements Re-Negotiation Committee dated 11th
August, 2022, and addressed to the President of ASUU ------ exhibit ASUU 7.
1.14. In compliance with the Rules of this
court, the Defendant/Respondent also filed a Written Address wherein the
learned Senior Counsel for the Respondent Femi Falana, SAN adopted and argued
the two (2) issues submitted by the Claimants/Applicants. It is pertinent to
note that learned silk also submitted this lone preliminary issue for the
court’s determination, to wit: Whether paragraphs 7, 8, 9, 10, 11, 12, 13, 14,
15, 16, 19 and 20 of the Claimants Affidavit is not incompetent and as such
ought to be struck out.
1.15. It was submitted on the preliminary
issue that paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20 of the
Affidavit in support of the Application should be struck out because they
contain legal arguments, opinion and conclusion, and are also hearsay because
the deponent to the affidavit Okechukwu Nwamba did not introduce himself as a
member of the defendant or someone that attends the meetings of the FGN/ASUU
joint negotiation Committee, or even as a member of the University Community.
That the said paragraphs of the affidavit only amount to conjectures, opinions
and speculations. The court was urged to resolve the preliminary issue in
favour of the Defendant/Respondent and strike out the said paragraphs of the
affidavit in support of the application for offending section 115(1), (3) and
(4) of the Evidence Act, 2011 (as amended). References were made to the cases
of Bamaiyi V. State and Ors (2001) LPELR-731(SC) Pg. 22 para. B, Abiodun V. AGF
(2008)(incomplete citation), Majekodunmi and Ors V. Ogunseye (2017)
LPELR-42547(CA) Pg. 45-48 paras. C-F, Hakair Limited & Anor V. Sterling
Bank Plc (2019) CA/L/709/2014, Ikenta Best (Nig) Limited V. Attorney General
Rivers State (2008) LPELR-1476(SC), Buhari V. Obasanjo (2005) 13 NWLR (Pt.941)
1 at 317, Doma V. INEC (2012) All FWLR (Pt. 28) 813 at 829, Abubakar Sadiq
Mohammed V. Hon. Abdullahi Mohammed Wammako & Ors (2017) JELR 54662(SC),
Ikpeazu V. Otti (2016) 8 NWLR (Pt. 1513) 38 at 93, Senator Rashidi Adewolu
Ladoja V. Senator Abiola A. Ajumobi & Ors (2016) 10 NWLR (Pt. 1519) 87 at
146, Maku V. Al-Makura (2016) 5 NWLR (Pt. 1505) 201 at 222, Obasi Brothers Ltd
V. M.B.A. Securities Ltd, Onihylo V. Akibu (1982) 7 SC 60 at 62, Ucha V.
Elechi, Lafia LG V. Gov. Nassarawa State (2012) 17 NWLR (Pt.1328) 95, Abiodun
V. CJ Kwara State (2007) 18 NWLR 109, Haliru V. FRN (2008) All FWLR (Pt.425)
1697 at 1719 para. D and Otunba Oyewole Fashawe V. AG Federation & 3 Ors.
1.16. With respect to issue one (1), the
learned Silk for the Defendant/Respondent argued that, injunction which is
meant to preserve the res pending the determination of the suit is an equitable
remedy and therefore discretionary. The discretion must be exercised judicially
and judiciously. See Akinpelu V. Adegbore (2008) 10 NWLR (incomplete citation),
Globe Fishing Ind. Ltd V. Coker (1990) 7 NWLR (Pt. 162) 265, Akibu V. Oduntan
(1991) 2 NWLR (Pt. 171) 1, Sotuminu V. Ocean Steamship (Nig) Ltd (1992) 5 NWLR
(Pt. 239) 1, Ogbonnaya V. Adapalm (Nig) Ltd (1993) 5 NWLR (Pt. 292) 147, 7-Up
Bottling Co. Ltd V. Abiola and Sons (Nig) Ltd (1995) 3 NWLR (Pt. 383) 257.
1.17. With respect to the requirement of
the existence of legal right, the learned Silk for the Respondent argued that
it is the serial breach of the claimants of negotiated and binding Collective
Agreements that led to the industrial action the subject of this suit. That the
right to industrial action is statutory as provided in section 30(6)(9) of the
Trade Union (Amendment) Act, 2005, Article 8 of the International Covenant on
Economic, Social and Cultural Rights and Convention No. 87 on Freedom of
Association and Protection of the right to Association. That the right to
strike is the last resort in ensuring that collective agreements are enforced.
That the Claimants/Applicants have not shown any educational right that has
been breached by the Defendant, and have failed to establish the existence of a
legal right in this Application. See section 40 of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) and the case of Union Bank of Nigeria
Plc V. Edet (1993) 4 NWLR (Pt. 287) 288.
1.18. On the requirement of substantial
issue to be tried, it was submitted that in considering an application of this
nature for interlocutory injunction, the court is not to delve into facts the
resolution of which might lead to a determination of the substantive suit. That
the reliefs in the application are the same issues to be decided in the
substantive suit which cannot be determined at this interlocutory stage of the
proceedings. That the procedure adopted by the Hon. Minister of Labour and Employment
in ‘directing’ this court to issue order for members of the
defendant/respondent to resume work is wrong, scandalous and contrary to
sections 251(1), 6(6)(b) and 36(1) of the 1999 Constitution (as amended). References were made to the Referral from the
Hon. Minister of Labour and Employment and the cases of American Cynamid Co. V.
Ethicon Ltd (1975) 1 All ER 504 AT 510 para D, Nigerian Civil Service Union V.
Essien (1985) 3 NWLR (Pt. 12) 306, Onyeshoh V. Nnebedum (1992) 2 SCNJ 129,
Odutola Holding Ltd V. Ladejobi (2006) 12 NWLR (Pt. 994) 321 SC, Duwin
Pharmaceutical & Chemical Co. Ltd V. Beneks Pharmaceutical & Cosmetics
Ltd & 2 Ors (2008) Vol. 33 NSCQLR 239 at 276, Iwara V. Itam (2009) 17 NWLR
(Pt.1170) 337 at 377, Lexington International Insurance Co. Ltd V. Sola Holding
Ltd (2006) 7 NWLR (Pt. 216) 124, University Press Ltd V. Martins (Nig) Ltd
(2000) 4 NWLR (Pt. 654) 584, Biocon V. Kudu Holdings Ltd (2000) 4 NWLR (Pt.
691) 493, UBA V. Immarches (Nig) Ltd (2003) 6 NWLR (Pt. 817) 529, W.A.A. Co. Ltd
V. Akinsefe (1999) 13 NWLR (Pt. 636) 600, Adenuga V. Odumeru (2003) 8 NWLR
(Pt.821) 163, Okeke V. Okoli (2000) 1 NWLR (Pt.642) 641 and Suit No.
NIC/LA/15/2009 Between Engr. Femi Omokungbe V. The Governing Council, Yaba
College of Technology.
1.19. On the requirement of Balance of
Convenience, the learned Senior Counsel posited that the defendant and its
members are not the only unions in the university community and they therefore
lack the capacity to shut down the university system. That there would not have
been the need for any industrial action had the Claimants honoured their
obligations under the various MOUs and MOAs willingly and collectively entered
into by the parties to this suit. That since the Claimants are the aggressors
in this suit and responsible for the protracted industrial disharmony, the
court should hold that the balance of convenience is in favour of the
Defendant/Respondent. See Egbe V. Onogun (1972) LPELR-1034(SC) and Margaret
Stitch V. AGF (no citation is given).
1.20. With respect to the requirement of
irreparable damage or injury, Falana SAN contends that an irreparable damage is
an injury that is substantial and cannot be adequately remedied or atoned for
by damages. That the Applicant must show in the affidavit evidence that if the
injunction is not granted he will suffer serious and substantial damages which
cannot be remedied by monetary compensation or damages. See Saraki V. Kotoye
(supra). That the victims in this suit are the members of the Defendant whose
action has not caused any damage to the Claimants to warrant the payment of
damages to them.
1.21. On the requirement concerning the
conduct of the parties, learned Silk argued that since there is an undue delay
on the part of the Claimants in bringing the instant Application about seven
(7) months since the commencement of the industrial action, the Application
should be refused. That the Claimants have only observed in breach every
agreement willingly entered into with the Defendant. That the provisions of
section 18 of the Trade Disputes Act relied upon by the Claimants/Applicants do
not apply to this suit. It was also argued that the court does not restrain a
completed act, and an industrial action commenced since 14th of February, 2022
is not one ordinarily open to injunction. See Peter V. Okoye (2002) 3 NWLR (Pt.
755) 529 at 552, Ojukwu V. Military Governor of Lagos State (no citation),
Angadi V. P.D.P. (2018) 15 NWLR (incomplete citation).
1.22. The court was urged to refuse the application,
or in the alternative make an order for expeditious trial of the suit in line
with the provisions of Order 22 Rule 4(1) of the Rules of this Court, 2017.
1.23. At the hearing of the application on
Monday 19th September, 2022, Falana, SAN for the Defendant/Respondent further
argued by way of adumbration that the court should not accede to the request in
item ‘F’ of the Referral letter because it is a directive by the Hon. Minister
of Labour and Employment to this court. That once a Referral has been filed
before the court no party is allowed to go outside the Referral. References
were made to the cases of Nigeria Seafarers Collaborative Union V. NUPENG
(2013) 3 NLLR (Pt. 88) 137. That since the relief in the Application for
Interlocutory Injunction is the same as relief ‘F’ in the Referral which is the
substantive suit, same cannot be granted at this interlocutory stage. See
National Headquarters of Nigerian Union of Civil Service, Typists, Stenographic
and Allied Staff V. Federal Branch of NUCSTSAS (2010) 21 NLLR (Pt. 58) 24.
1.24. It was further argued by learned
senior counsel that since the deponent to the affidavit in support of the
application did not attend any of the meetings leading to this suit, his
evidence is hearsay and cannot be cured by section 12 of the National
Industrial Court Act 2006.
1.25. With respect to item ‘F’ of the Referral
letter, the learned silk argued that it is only individuals that have direct
access to this court, and where unions and employers are involved they must go
through the Industrial Arbitration Panel (IAP). That the Hon. Minister of
Labour and Employment failed to comply with the provisions of Part 1 of the
Trade Disputes Act. Rerefences were made to the additional cases of Uzo V.
Dangote Cement Plc (2013) 31 NLLR (Pt. 82) at 229, PENGASSAN V. Schlumberger (2008)
11 NLLR (Pt. 29) 164 at 188, NUSDE V. SEWUN (2013) 35 NLLR (Pt. 106) at 606 and
Olurotimilayo V. AG Federation (2015) 62 NLLR (Pt. 217) 31.
1.26. That while the Referral letter dated 8th
September, 2022 has four (4) parties, the application has only three (3)
parties. That the learned silk for the Claimants/Applicants has no powers to
change the parties. That the Referral asks for only accelerated hearing of the
suit without any request for interlocutory injunction, hence the alleged urgency
in the application is self-induced. That since the Claimants/Applicants have
not approached the court with clean hands, the application should be dismissed,
and the court should rather make an order for accelerated hearing of the suit
in the interest of justice, fair hearing and national interest.
COURT’S DECISION.
2.0. Having pored over the processes in
respect of the application for interlocutory injunction filed on the 12th day
of September, 2022 including the submissions of both learned Senior Counsel to
the parties, this court shall determine the application on the basis of issue
two (2) formulated by the Claimants/Applicants which was adopted and argued by
the Defendant/Respondent; to wit: Whether the Applicants have met the requirements
for the grant of an Interlocutory Injunction in their favour?
2.1. I have however seen that the learned
senior counsel for the Defendant/Respondent raised a preliminary issue
regarding the competence of paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19
and 20 of the affidavit in support of the application on the grounds that they
offend section 115(1), (3) and (4) of the Evidence Act, 2011 (as amended) and
also hearsay.
2.2. I have carefully gone through the
said paragraphs of the supporting affidavit and seen that they only relate to
the events that spurred the instant suit before the court, and the effect of
the strike action on the lives, values and wellbeing of the students in the
public universities in this country. While I agree with Falana, SAN that by
section 115 of the Evidence Act, 2011 an affidavit is not to contain extraneous
matters by way of objection, prayer, legal argument or conclusion, I have
however not seen where the said paragraphs of the affidavit in support of the
application offend section 115 of the Evidence Act as contended by the learned
silk.
2.3. With respect to the argument that the
facts deposed in the supporting affidavit are hearsay because the deponent did
not participate in any of the meetings of the parties in this suit, let me
restate the position of the law that by sections 37 and 38 of the Evidence Act
read together, hearsay evidence is inadmissible in law. See the case of Edward
Nkwegu Okereke V. Nweze David Umahi and
Ors. (2016) LPELR-400035(SC) where the apex Court per Kudirat Motonmori
Olatokunbo Kekere-Ekun, JSC at page 55 paras B – C held that, “Hearsay
evidence, oral or documentary, is inadmissible and lacks probative value. See
section 37 of the Evidence Act, 2011 particularly sub-section (b). See Buhari
V. Obasanjo (2005) 13 NWLR (Pt.941) 1 @ 317; Doma V. INEC (2012) All FWLR (Pt.
628) 813 @ 829.” See also Mohammed Dauda V. Federal Republic of Nigeria and
Ors. (2021) LPELR-53829(CA).
2.4. In resolving the issue of hearsay
evidence, it is apposite to reproduce paragraphs 1 – 4 including the
introductory paragraph of the affidavit in support of the application for the
purpose of lucidity:
“I, Okechukwu Nwamba, Male, Christian and
Nigerian Citizen of Federal Ministry of Labour and Employment, Central Business
District, Abuja, hereby make oath and state as follows:
(1) I am a Legal Officer in the Federal Ministry
of Justice posted to the Federal Ministry of Labour and Employment as the Legal
Adviser.
(2) By virtue of my position, and my schedule of
duties, I am conversant with the facts of this matter and facts herein deposed.
(3) I have the consent of the Federal Government
of Nigeria to depose to this affidavit.
(4) The facts deposed to herein are facts within
my personal knowledge and also facts gathered from documents that came into my
possession in my official capacity except where I state otherwise and where the
facts I depose to is from a third source, I have also stated the full
particulars of the source of the facts.”
2.5. By section 115(1), (3) and (4) of the
Evidence Act, 2011 (as amended), every affidavit for use in a court shall
contain only a statement of facts and circumstances to which the witness
deposes, either of his own personal knowledge or from information which he
believes to be true; and where the information is received from another person,
the name of the informant including reasonable particulars of such informant
shall be stated, as well as the time, place and circumstance of the
information.
2.6. It is obvious from the paragraphs of
the supporting affidavit reproduced above that the deponent Okechukwu Nwamba
who is the Legal Adviser of the Federal Ministry of Labour and Employment is a
very senior officer of the Ministry, and a member of the Management of the
Ministry. By virtue of his position as the Legal Adviser he is expected to have
access to and keep custody of legal documents in the Ministry, and also gives
legal opinion to the Hon. Minister on all legal issues that may arise in the
Ministry. I do not see how the information in the affidavit in support of the
application amounts to hearsay. The paragraphs of the supporting affidavit are
competent and shall be countenanced in this decision. In any event, section
12(2)(b) of the National Industrial Court Act, 2006 and Order 5 Rule 6 (b) of
the Rules of this Court 2017 allows this court to depart from the Evidence Act
in the interest of justice, fairness, equity and fair-play. See the case of Mr.
Victor Adegboyu V. United Bank for Africa (unreported) Appeal No.
CA/IL/20/2021, a decision of the Court of Appeal Ilorin Judicial Division
delivered on the 14th day of April, 2022, where the Court of Appeal applied
section 12(2) of the National Industrial Court Act 2006 and departed from the
provisions of the Evidence Act 2011.
2.7. I have also seen that the bulk of the
other submissions of Falana, SAN relate to the competence of the Referral dated
8th September, 2022 and the substantive suit which have been argued in the
Notice of Preliminary Objection filed on the 16th day of September, 2022. Since
the court is neither considering the Notice of Preliminary Objection nor the
substantive suit, it will be premature to delve into those arguments at this
stage of hearing the Application for Interlocutory Injunction. Those issues can
only be considered at the point of hearing the Notice of Preliminary objection
and the substantive suit. See the case of Attorney-General of the Federation V.
Attorney-General of Abia State and Ors (2001) LPELR-24862(SC) where the apex
Court enjoins courts to say less at preliminary stage of a case so as not to
fall into the trap of prematurely making observations that may prejudge the
issues in the substantive suit.
2.8. With respect to the lone issue
identified for determination in this Application, it has been held in a legion
of cases that an interlocutory injunction which is usually granted at the
discretion of the court is an equitable remedy granted before or during trial
to prevent an irreparable injury from occurring before the court has the
opportunity to finally determine the case before it. Its main purpose is to
keep the parties to an action in status quo in which they were before the
judgment on the act complained of; to protect the applicant against injury which
damages cannot be adequate compensation if at the end of the trial the
applicant succeeds in obtaining judgment in the suit. See Globe Fishing
Industries Limited and Ors V. Chief Folarin Coker (1990) LPELR-1325(SC), Chief
Samuel Adebisi Falomo V. Oba Omoniyi Banigbe and Ors (1998) LPELR-1237(SC) and
Dekit Construction Co. Ltd. & Anor. V. Musibau Adebayo & Ors. (2010)
LPELR-4030(CA).
2.9. The onus is therefore on an
applicant(s) seeking an injunctive relief from the court to satisfy the court by
way of affidavit evidence and other relevant materials that he/they is/are
entitled to the injunctive relief(s) being sought from the court. See The
Attorney-General of Anambra State V. The Attorney-General of the Federal
Republic of Nigeria & 35 others (2005) 9 N.W.L.R (Part 931)572 at 634
paras. C – E.
2.10. The law is banal as rightly argued by
both learned Senior Counsel in this suit that for an applicant seeking
injunctive reliefs to succeed, he must satisfy some conditions which must be shown
in the affidavit in support of the application. In the case of Mr. Francis
Temewei & Others V. Mr. Tom Benbai & Others (2015) LPELR-25131(CA), the
Court of Appeal per Bada, J.C.A. held as follows on the conditions for the
grant of an interlocutory injunction: “Black’s Law Dictionary 6th Edition page
714 defined Injunction as an order prohibiting someone from doing some
specified act or commanding someone to undo some wrong or injury. In Adenuga Vs
Odunewu (2001) 2 NWLR Part 696 Page 184, the Supreme Court per Karibi-Whyte JSC
defined injunction at Page 185 as follows: “an equitable order restraining the
person to whom it is directed from doing things specified in the order or
requiring in exceptional situations the performance of a specific act.” The preservation
of the subject matter i. e. “res” in dispute or the maintenance of the “status
quo” is achieved through the judicial process of the equitable order of
injunction. And since injunction is an equitable remedy, it is usually granted
at the discretion of the court which must be exercised judicially and
judiciously. For the court to exercise its discretion in favour of an
applicant, certain conditions must exist and this must be shown in the
affidavit accompanying the motion on notice. The conditions for grant of
interim and interlocutory injunctions are basically the same except for the
element of urgency in interim injunction which is not pronounced in
interlocutory injunction. The conditions include:
a. Existence of a legal right
b. Substantial issue to be tried
c. Balance of convenience
d. Irreparable damage or injury
e. Conduct of the parties
f. Undertaking as to damages.”See also
Union Beverages Limited V. Pepsicola International Limited & Ors (1994)
LPELR-3397(SC), Obidiegwu Onyesoh V. Nze Christopher Nnebedum and Ors (1992)
LPELR-2742(SC) and Oba James Adeleke and Ors V. Nafiu Adewale Lawal and Ors
(2013) LPELR-20090(SC).
2.11. I have examined the depositions in the
various affidavits and the exhibits in respect of the application, and it is
obvious that by exhibits 1 and 2 attached to the affidavit in support of the
application the Defendant/Respondent rolled over the industrial action which
Dr. Oludayo Tade in his publication in the Punch Newspapers of 2nd March, 2022
and The Nation Newspaper of 24th February, 2022 tagged “Valentine Strike”
commenced on the 14th of February, 2022 for a further period of twelve (12) weeks
w.e.f. Monday 9th May, 2022, and subsequently to a comprehensive, total and
indefinite strike action w.e.f. 19th of August, 2022.
2.12. With respect to the requirement for
serious question to be tried, I hold that by paragraphs 5, 6, 7, 8 and 13 of
the supporting affidavit, paragraphs 3, 5, 6 and 7 of the Counter Affidavit and
exhibit 3 annexed to the supporting affidavit, as well as exhibits ASUU 1 to
ASUU 7 annexed to the Counter-Affidavit, there are serious issues to be tried
in this suit by the court. Those issues also relate to the legal rights of the
defendants who are the owners of the Federal Public Universities to approach
this court for adjudication.
2.13. On the requirement of balance of
convenience, there is no doubt that the balance of convenience tilts in favour
of the Claimants/Applicants who are the owners of the federal public
universities where the members of the Defendant/Respondent have been on strike
for over a period of seven (7) months now. The Claimants/Applicants stand to
lose more if the application is not granted. It may be appropriate to state
here that, in the circumstance of the trade dispute between the parties in this
suit, this court has also taken into consideration the larger interests of the
public, particularly the innocent students in the public universities most of
whose parents and guardians cannot afford the enormous amount of money required
to either send them to private universities within the country or take them
outside this country for undergraduate or graduate studies. These innocent
students who are the victims of the protracted strike have been out of school
for more than seven (7) months now in a country where age is a major factor in
virtually everything including employment. The point being made is that, even
where the lost academic semesters/sessions are covered upon resumption, the
increase in the age of these students who are being deprived of the opportunity
to complete their studies as and when due cannot be reversed. Section 2 (2) of
the National Youth Service Corps Act for example prohibits any person who is
over the age of thirty (30) at the date of graduation from being enlisted into
the Service Corps. Many individuals who would have graduated before the age of
30 and have their lifetime ambition of serving their fatherland as corps
members achieved have been denied and deprived of the opportunity as a result
of the prolonged industrial action due to no fault of theirs. Even in the area
of employment for instance, part of the requirement of persons who want to
enlist into the Nigerian Army Direct Short Service Commission Course 26/2022 is
to be between the ages of 20 and 30 years and 25-40 years of age for Medical
Consultants. The same age requirement applies to the enlistment into the
Nigerian Air Force Direct Short Service Commission Course, to mention but a few
instances. See recruitment.army.mil.ng and careersngr.com
2.14. In the case of Florence Owolabi
Enterprises Ltd V. Wema Bank Plc (2011) LPELR 4168 (CA), the Court of Appeal
held that, “In determining the balance of convenience in the consideration of
an application for interlocutory injunction, the trial court is expected to
pose one or two questions: who will
suffer more inconvenience if the application is granted? Who will suffer more
inconvenience if the application is not granted? The trial court has a duty to
provide an answer to the questions, and in doing so it must allow itself to be
guided by the facts before it. The balance of convenience between the parties
is a basic determinant factor in an application for interlocutory injunction.
In the determination of this factor, the law requires some measurements of the
scale of justice to where the pendulum tilts. While the law does not require
mathematical exactness, it is the intention of the law that the pendulum should
really tilt on the Applicant.” I therefore hold on the requirement of balance
of convenience that the balance of convenience tilts in favour of granting the
application.
2.15. With respect to the requirement for
inadequacy of damages and undertaking as to damages, it is manifest from the
circumstances of this suit that the amount of damages and injury being caused
to the education sector of this nation and the innocent students in the public
universities as a result of the lengthened strike action is irreparable, and no
amount of compensation can be enough or adequate for the losses. I have also
seen that apart from paragraph 17 of the affidavit in support of the
application where the Claimants/Applicants undertake to indemnify the
Defendant/Respondent for any damage that may occur if at the end of the day it
is found out that the application should not have been granted, they have also
filed before this court an affidavit of undertaking as to damages containing 5
paragraphs deposed to by Okechukwu Nwamba on the 12th day of September, 2022.
2.16. On the requirement of the conduct of the
applicants, I have seen that contrary to the submission of Falana, SAN that the
Applicants have delayed in bringing the application because the strike started
on the 14th of February, 2022, and that the urgency in the application is
self-induced, it is obvious from exhibits ASUU 1 to ASUU 7 annexed to the
Counter-Affidavit that parties have been negotiating in line with the
requirements of the Trade Disputes Act till 1st of September, 2022 when the
Defendant/Respondent wrote to the Chairman of the Committee of Pro-Chancellors
of Federal Universities. The Referral to this court was made on the 8th of
September, 2022, while the instant application was filed on the 12th of
September, 2022. I therefore hold that the conduct of the Claimants/Applicants
have not been reprehensible as there is no undue delay on their part.
2.17. Section 18 of the Trade Disputes Act
under which the application is brought provides as follows:
“18 (1) An employer shall not declare or
take part in a lock-out and a worker shall not take part in a strike in
connection with any trade dispute where-
(a)
The procedure specified in section 4 or 6 of this Act has not been complied
with in relation to the dispute; or
(b) A conciliator has been appointed under
section 8 of this Act for the purpose of effecting a settlement of the dispute;
or
©
the dispute has been referred for settlement to the Industrial
Arbitration Panel under section 9 of this Act; or
(c)
An award by an arbitration tribunal has become binding under section 13(3) of
this Act; or
€
the dispute has subsequently been referred to the National Industrial
Court under section 14(1) or 17 of this Act; or
(f)
the National Industrial Court has issued an award on the reference.”
2.18.
There is no doubt that the use of the word “shall” in section 18(1)€ of
the Trade Disputes Act reproduced above connotes mandatory obligation or duty
on the part of employers and employees not to declare or partake in any
lock-out or strike when a dispute has been referred to this court, and where
such lock-out or strike is ongoing at the time of the Referral to this court,
it shall cease or abate pending the determination of the suit. That is the only
literal interpretation or construction to be given to the clear and unambiguous
provision of section 18(1)€ of the Trade Disputes Act. In the circumstance of
this suit, since the issues in dispute have been referred to this court by the
Hon. Minister of Labour and Employment vide the Referral Letter and Instrument
dated 8th of September, 2022 and 7th of September, 2022 respectively pursuant
to section 17 of the Trade Disputes Act, section 18(1)€ mandates the members of
the Defendant/Respondent not to take part in any strike pending the
determination of the suit. The argument of Falana, SAN that the act of the
Defendant/Respondent sought to be restrained has been concluded is of no
moment, and flies in the face of exhibit 2 dated 29th August, 2022 attached to
the affidavit in support of the application, where the Defendant/Respondent
communicated to the Hon. Minister of Labour and Employment their decision to
roll-over the strike to a comprehensive, total and indefinite one beginning
from 12:01am on Monday, 29th August, 2022. It is clear that even as at the time
of reading this decision today 21st of September, 2022, the strike action
embarked upon by the Defendant/Respondent on the 14th of February, 2022 has not
ended.
2.19. In the case of Dr. Arthur Agwuncha
Nwankwo and Ors V. Alhaji Umaru Yar’Adua and Ors. (2010) LPELR-2109(SC), the
apex Court held as follows on the interpretation to be accorded the word
‘shall’ in a statute, “The word shall when used in a statutory provision
imports that a thing must be done. It is a form of command or mandate. It is
not permissive, it is mandatory. The word shall in its ordinary meaning is a
word of command which is normally given a compulsory meaning as it is intended
to denote obligation. Bamaiyi V. A.G. Federation (2001) 12 NWLR Pt. 722 pg. 468
Ifezue V. Mbadugha (1984) 1 SCNLR pg. 427 Chukwuka V. Ezulike (1986) 5 NWLR pt.
45 pg. 892, Ngige V. Obi (2006) 14 NWLR pt. 991, pg. 1.” See also Chika
Madumere and Anor V. Barrister Obinna Okwara and Anor (2013) LPELR-20752(SC).
2.20. To further bolster my decision that
section 18(1) of the Trade Disputes Act connotes an obligation and is mandatory
which leaves no room for discretion, section 18(2) of the Trade Disputes Act
criminalizes any contravention of section 18(1) by imposing a fine of N100 or
imprisonment of six months for an individual, or a fine of N1000 for a body
corporate.
2.21. In the circumstance, and on the
strengths of section 254C(1)© of the Constitution of the Federal Republic of
Nigeria 1999 (as amended), section 18(1)€ of the Trade Disputes Act, sections
7(1)(b), 16 and 19€ of the National Industrial Court Act 2006, I hold that this
application is meritorious and same is hereby granted. The lone issue
identified for determination is resolved in favour of the Claimants/Applicants.
The request of Falana, SAN for the court to grant an accelerated hearing of the
application in place of an injunctive relief is of no moment since by Order 25
of the Rules of this court 2017 the case qualifies as one to be placed on
Fast-Track for speedy trial.
2.22. In the final result,
the Court hereby orders as follows:
An order of interlocutory injunction is
hereby granted restraining the Defendant/Respondent (Academic Staff Union of
Universities, ASUU) by themselves, members, agents, servants, privies or
howsoever called from taking further steps and doing any act or otherwise
continuing with the indefinite strike or any strike action pending the hearing
and determination of the suit/referral to this Honourable Court dated 8th
September 2022 made at the instance of the Minister of Labour and Employment as
a matter of national interest pursuant to his powers under Section 17 of the
Trade Disputes Act.
Ruling is entered accordingly.
I make no order as to costs.
Justice P. I. Hamman
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