Confusion, as Court orders ASUU to end 7-month strike
…No victor, no vanquished, ruling is win-win in nation’s interest – FG
…Court order betrays equity, cannot resolve contesting problem – NANS
…Threatens to disrupt political campaigns
…Industrial Court order not final – ASUU
By Moses Adeniyi, Ridwan Adekunle, Deborah Onatunde
The Academic Staff Union of Universities (ASUU) has been held amidst legal contemplations following a court verdict ordering the Union to call off its over seven months old strike – a development that has plunged the Union into a dilemma of legal entanglements.
The National Industrial Court of Nigeria (NICN) sitting in Abuja, on Wednesday, ordered the aggrieved University lecturers under ASUU to call off the strike action in a ruling that was delivered by Justice Polycarp Hamman.
The ruling followed an application the Federal Government filed for an interlocutory order to compel ASUU which embarked on strike action since February 14, 2022, to return to the classroom.
FG’s lawyer, Mr. James Igwe had prayed the court to order the aggrieved lecturers to in the interim, return to work, pending the determination of the substantive suit before the court.
He maintained that the matter was not only urgent, but of a great national interest as millions of students have been at home for over seven months.
“Sections 47 of the Trade Dispute Act, TDA, gives your lordship the power to direct that no worker should continue to embark on strike pending when the applications are heard and determined,” he argued.
He contended that under section 18(1)E of the TDA, employees, could not continue a strike action, when a matter is already referred to the industrial court for adjudication.
Igwe submitted that there was need for the matter to be expeditiously determined to enable university students return to school, adding that failure to call off the strike would cause irreparable damage to not only the students but also to the nation.
According to him, since the dispute between FG and lecturers is already before the court for adjudication, it would be proper and in the interest of justice for the strike to be suspended.
Counsel to FG, Mr J.U.K Igwe, SAN, in his submission had informed the court that the application for the injunction was predicated on 11 ground, supported by 21 paragraph affidavit deposed to Mr Okechukwu Wampa, a Legal Adviser in the Ministry of Labour and Employment, attached with three exhibits and an undertaking as to damages deposed to by Wampa.
ASUU’s counsel, Mr Femi Falana, SAN, tabled before the court, a nine paragraph counter-affidavit filed on Sept. 16 deposed to by the president of ASUU, arguing that the minister lacked the power to order the court in the referral to direct ASUU to call off its strike.
He submitted that the balance of convenience was not on the side of the claimants and that the conduct of the claimants in the prayer for the court to interpret the 2009 Agreement should be discountenanced.
In his ruling, Justice Hamman held that FG’s application was meritorious and deserved to be granted by the court.
The court dismissed objections raised by ASUU’s lawyer, Falana, SAN, ruling that the strike action was detrimental to public university students that cannot afford to attend private tertiary institutions.
“The balance of convenience tilts in favour of the applicant. I hold that this application is meritorious and this application is granted,” Justice Hamman ruled.
The court, thereafter, issued an order, restraining ASUU, “whether by themselves, members, agents, privies or howsoever called, from taking further steps and doing any act in continuance of the strike action, pending the hearing and determination of the suit filed.”
Recall that ASUU had embarked on an initial four weeks warning strike to press home its long demands that included an improved funding for universities, as well as a review of salaries for lecturers.
It subsequently extended the strike action indefinitely on August 29, 2022 following the breakdown of negotiations between the union and the government.
Major issues in contention between FG and ASUU are the non-implementation of a Memorandum of Action (MoA) signed in December 2020 on funding for the revitalisation of the public universities; non-payment of Earned Academic Allowances of lecturers; non-renegotiation of a 2009 agreement and government’s refusal to deploy the University Transparency and Accountability Solution (UTAS) as a platform for payment of ASUU members’ wages.
While ASUU accused FG of not being sincere in its negotiation, the Government, through the Ministry of Labour and Employment, approached the court to compel the striking lecturers to return to the classroom.
FG in its move to clip ASUU by legal restraint, specifically, prayed the court to, “interpret in its entirety the provisions of Section 18 LFN 2004, especially as it applies to the cessation of strike once a trade dispute is apprehended by the Minister of Labour and Employment and conciliation is ongoing.”
It prayed for, “an order of the Court for ASUU members to resume work in their various universities while the issues in dispute are being addressed by the NICN in consonance with the provisions of Section 18 (I) (b) of the TDA Cap T8. LFN 2004.”
ASUU had in a counter-affidavit it filed before the court, opposed the suit on the premise that the Minister of Labour and Employment, Dr. Chris Ngige, lacked the power to order the court in the referral to direct it to call off the strike action.
ASUU’s lawyer, Falana, SAN, had argued that such referral amounted to a directive from the Minister to the court.
He maintained that neither a Minister nor the President could wield such powers as to control a court of competent jurisdiction.
More so, Falana, SAN, argued that FG failed to follow due process as stipulated in part 1 of TDA 2004.
According to him, the law, provided that such matter must first pass through the Industrial Arbitration Panel (IAP) before landing at the NIC.
Falana argued that ASUU would not have embarked on strike had it been the government kept to various agreements and Momoradum of Understanding (MoU) it signed with the union in the past.
Justice Hamman dismissed the objections and ordered the aggrieved lecturers to in line with provisions of the TDA, return to the classroom, pending the final determination of the suit before the court.
…Legal implications
On the dilemma before ASUU, legal practitioners have shed light on the possibility of ASUU appealing the ruling of the Court, particularly when there is a pending motion challenging the jurisdiction of the court.
The dilemma would be for ASUU to either comply with the order or appeal the ruling, since disregarding the order is an option out of place for the lecturers.
On the enforceability pf Section 254C (1) sub (j) (i) bothering on collective agreement over which ASUU has been agitating since 1992, it has been argued that the court should have considered the non-implementation of the failing of collective agreement between ASUU and the Federal Government.
The Federal Government had on September 8, 2022, dragged ASUU to the NICN, Abuja, over the strike, seeking to compel the union members to return to the classrooms.
It also asked NiCN to determine whether it was right or wrong for ASUU to insist on payment of its members’ salaries for the period they have been off duty.
The court ruling, however, is coming at a time the National Assembly commenced move to intervene in the matter.
The Speaker of the House of Representatives, Femi Gbajabiamila had on Tuesday mentioned that the strike would soon be over as contentious issues have been considered for possible agreement.
Gbajabiamila who gave the hint after meeting behind closed doors with ASUU leadership and the Minister of State for Education, Goodluck Oppiah in Abuja, said having met with critical stakeholders, the outcome of the deliberations would be presented to President Muhammadu Buhari upon his return to the Country from the United Nations General Assembly.
“As I said earlier, ours is to interface directly with ASUU as an independent arm of government to find out exactly the details and how solutions can be offered like they said two heads are better than one.
“Now that the legislature has come in, we are very hopeful based on our deliberations in the last four or five hours that there is light at the end of the tunnel,” the speaker had said.
…No victor, no vanquished, ruling is win-win situation in nation’s best interest — FG
Meanwhile, the Federal Government has described the ruling ordering ASUU to discontinue its strike as a win-win situation which is in the best interest of the nation.
This is just as the government also said that it would order the Vice Chancellors to reopen public universities in compliance with the order.
Speaking while he received members of the Nigerian Association of Medical and Dental Academics (NAMDA) in his office on Wednesday, the Minister of Labour and Employment, Senator Chris Ngige, said that the court ruling would not however, preclude further negotiation between the Federal Government and ASUU.
According to him, “The ruling is in the best interest of the nation. It is a win-win situation for all of us- government, students, lecturers- all Nigerians indeed.
“I have just gotten the order of court asking ASUU to go back to work. It is a sound judgment. It is no victor, no vanquished. You doctors in academics are for now members of ASUU, but, you are here, even though you have dissociated yourself and you are working. We want to thank you for working and teaching your students.
“The court ruling does not preclude us from going on with further negotiation and consultations.
“The pro-chancellors met Mr. President and made some demands, such as topping up government offer and seeing whether there could be some bailout. Mr. President said in considering it, he will consult stakeholders. So, he is going to consult everybody.”
Ngige who welcomed the intervention of the House of Representatives in the ASUU contest, said the intervention was timely considering that the President must have also consulted some stakeholders, adding that whatever money to be put in would go into the 2023 appropriation where the National Assembly comes in.
“If they have shown interest now, it is good and wonderful. When they bring that proposal, the Executive will not have any problem. ASUU should also know that this is a step in the right direction. And all these things have been promised them by the Minister of Education at their last meeting with him. For me, they should do the needful and get back to classroom,” he said.
He said the government would order the vice chancellors to reopen the universities in compliance with the order of court.
“The government would order the Vice Chancellors to reopen the universities in compliance with the order.
“Whenever there is hostility between employer and employee and conciliatory processes in motion, that has not been satisfactorily done to achieve peace and tranquility in the industrial enterprise in consonance, with Section 4 (6), the Minister of Labour, by Section 17, will transmit it to the National Industrial court for final adjudication.
“And once the transmission is done just like when apprehension is done by the Minister, the parties will return to status quo ante bellu and that is why we asked the court to look at this issue and look at the interlocutory injunction asked for by the federal government and pronounce that these these workers should go back and that these employers should open up the classrooms and the laboratories and everywhere for the students to go and benefit from the education.
“The court saw with government and granted the request and even in granting the request, they said it is of national importance to the development of education, and for the protection of rights of our children. To education, that the teachers so employed to teach them should go back and start teaching them pending the resolution of the issues raised from my office as issues in disputes.
“We listed them for the courts, seven of them, some of them about five of them conciliated, here satisfactorily for ASUU even during the strike,” he said.
On the insinuation that ASUU was contemplating to appeal the ruling, he said, “Appealing, the order is within their rights to do so. But I don’t think it is a good step, because this court order ruling does not stop us from further negotiations.
“As a matter of fact, the trajectory, like I said earlier is that the courts, in looking at the issues will constitute a panel either a panel of the courts, or what is called ‘alternative dispute resolution Panel,’ to look at the issues one by one.
“If the alternative dispute resolution panel is used, they will also make their report to the court, and the judge will make a pronouncement on it
“I don’t know now but it is at the discretion of the court. So, appealing it (order of court) is neither here nor there. I don’t see anything that is injurious to anybody to necessitate such an appeal.”
…Decision of Industrial Court not final — ASUU
In reaction to the court order, ASUU in a statement signed by its Lagos Zonal Coordinator, Dr Adelaja Odukoya, quoted the National President, Professor Emmanuel Osodeke, as saying, “our lawyer is filing an appeal and stay of execution of the judgment.”
According to the statement titled, “NICN back to work order on ASUU: Be calm,” Osodeke urged the aggrieved university teachers to remain calm as there is no cause for alarm on the back-to-work order delivered on Wednesday.
“Members should remain resolute and strong. A people united can never be defeated. Solidarity without compromise,” he stated.
Osodeke while featuring Wednesday night on Channels TV Politics Today, said the decision of the NICN is not final as the Union is consulting for the next line of action.
“The beauty of Nigeria’s legal system is that there are steps. The first step is Appeal Court and the Supreme Court.
“So as a union, we will have to sit down, we’ll hear from our solicitor, our lawyer, and our members, and then we’ll take the next step. The decision of the industrial Court is not final.”
“We are union of intellectual. We have to remember that we’re not emotional. He (the court) has the right to give a judgement.”
…Court order betrays equity, cannot resolve problems – NANS
Meanwhile, the National Association of Nigerian Students (NANS) on Wednesday faulted the court judgement ordering ASUU to call of its 7-month strike, saying it would not solve the outstanding problems.
Reacting to the ruling in a statement, NANS National Public Relations Officer, Giwa Temitope, said the judgement betrays equity.
The student union spokesperson explained that rather than direct ASUU to return to classroom, the court should have ordered the Federal Government to sort the striking lecturers.
According to the students union, the fact that they had to drag ASUU to court is a signal that this government cannot handle crisis.
The statement read, “Our attention has been drawn to a news of a court judgment mandating the Academic Staff Union of Universities (ASUU) to call of its 7 month strike.
“As an association, we feel disturbed to read the news of the judgment because we believe that it betrays equity.
“Ordinarily, the Federal Government is not meant to have dragged ASUU to court. But, the fact that they had to drag ASUU to court is a signal that this government cannot handle crisis.
“And, we want to state categorically that the court cannot force members of ASUU back to lecture theatres.
“And, as it stands today, with that court judgment, we maintain that the court has not resolved the problem and we reject the judgment in strong terms.
“The court could have said that the Federal Government should go and pay rather than say that lecturers who are on strike should go back to classrooms.
“We were expecting the court to have understood that lecturers are on contract of personal service hence, they cannot be compelled to render a service they don’t want to render.
“The only remedy to this strike action is for the Federal Government to accede to the demands of ASUU which the government willingly entered into with them and properly fund education.”
…threatens to disrupt political campaigns
Meanwhile, the National Association of Nigerian Students (NANS) on Wednesday further threatened that it would disrupt political campaigns slated to start later this month in pressing home their demand for the Federal Government to end the ongoing ASUU strike.
In a press conference on Wednesday, the Chairman, NANS National Taskforce on #EndASUUStrikeNow, Ojo Olumide, emphasized the students’ resolve to continue the protest until the strike is called off.
“For those misconstruing our struggle, we call on them to see reason with Nigerian Students and join us in the struggle to save public education in the country.
“The leadership of NANS demands a better deal for the education of the Nigerian masses because most of the children of the privileged few now study either overseas or in Private Universities established with our common wealth across the country by the same set of people we entrusted to govern us. This is more reason they will continue to turn deaf ears to the demand by ASUU for improved standards and conditions of learning in our public higher institutions.
“Our blocking of access to public roads and ports is just a warning. If the government fails to conclude all the negotiations and agreement with ASUU within the frame of two weeks, they will witness more protests and rallies all over the country, they will also witness the annoyance, anger, and frustration of Nigerians Students who have been at home for the past seven months,” the statement read.
The students had recently taken their demonstration to roads and airports, including the Lagos-Ibadan expressway and the Murtala Mohammed Airport, Lagos in protest against the strike.
