ASUU appeals court ruling, says suit ignores due process of law
By Jeph Ajobaju, Chief Copy Editor
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The trial judge “erred in law and occasioned a miscarriage of justice when he decided to hear and determine the Respondents’ motion for an interlocutory injunction when he knew or ought to have known that the substantive suit was not initiated by due process of law” – ASUU
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Due process of law was not followed in the ruling of the National Industrial Court (NIC) which ordered lecturers to end their strike and return to campus, the Academic Staff Union of Universities (ASUU) has argued at the Court of Appeal.
ASUU asked the Appeal Court in Abuja to set aside the judgment of the NIC on 14 grounds lodged through its team of lawyers led by Femi Falana, SAN.
ASUU also applied for a stay of execution of the judgment delivered by Justice Polycarp Hamman which ordered it to return to the classroom pending the determination of a suit the government filed to question the legality of its strike.
Hamman ruled on 14 September that the order was both in the national interest and for the sake of undergraduates who have been at home since 14 February.
He held that the strike is detrimental to public university students who cannot afford to attend private universities.
“The balance of convenience tilts in favour of the applicant. I hold that this application is meritorious and this application is granted,” Hamman ruled.
But ASUU in its appeal argued that Hamman “erred in law and occasioned a miscarriage of justice when he decided to hear and determine the Respondents’ motion for an interlocutory injunction when he knew or ought to have known that the substantive suit was not initiated by due process of law.”
ASUU also argued that
The mandatory steps and procedure stipulated in Part 1 of the Trade Dispute Act (TDA) were not followed by the government.
The trial judge acted ultra vires and misdirected himself when he unlawfully assumed jurisdiction to entertain the matter, and what was granted as an interlocutory order was the same relief the government sought in its substantive suit.
“The findings of the trial court were contrary to and against the weight of evidence led at the trial.”
It showed the lower court “uncontroverted and irrefutable evidence that the federal government waited for about seven months before approaching the NIC for the order of interlocutory injunction.”
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Breaking the law
ASUU added that
By virtue of Sections 17 and 18 of the TDA, the NIC can only entertain appeals arising from the decision of the Industrial Arbitration Panel (IAP) with respect to issues arising from trade disputes, per reporting by Vanguard.
It is totally “dissatisfied with the decision” of the trial court which should not only be stayed from being executed but also set aside in its entirety.
The appeal was lodged “both on grounds of law and on grounds bordering on fundamental human rights.
“This honourable court should not shut out the Appellant and thousands of its members desirous of ventilating their grievances pursuant to Section 6 (6) (b) and 36 (1) of the 1999 Constitution, as amended.”
It relied on Section 243 (3) of 1999, as amended, to apply for leave of the appellate court to lodge the appeal.
“The Applicant’s counsel, out not the abundance of caution, has brought this application to obviate any doubt associated with the nature of the appeal.”
Backstory
ASUU began an initial four-week strike on 14 February to press home its demands that include improved funding for universities and a review of salaries for lecturers.
It extended the strike indefinitely on 29 August following the breakdown of negotiations with the government.
ASUU accused the government of insincerity in its negotiation and the government approached the court to compel the lecturers to return to the classroom.
Abuja urged the court to “interpret in its entirety the provisions of Section 18 LFN 2004, especially as it applies to the cessation of the strike once a trade dispute is apprehended by the Minister of Labour and Employment and conciliation is ongoing.”
It sought “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 in a counter-affidavit opposed the suit on the premise that Labour and Employment Minister Chris Ngige lacks the power to order the court in the referral to direct it to call off the strike.
Falana said
Such referral amounts to a directive from the Minister to the court, whereas neither a Minister nor the President can wield such power to control a court of competent jurisdiction.
The government failed to follow due process stipulated in part 1 of TDA 2004 which provides that such matter must pass through the IAP before getting to the NIC.
ASUU would not have embarked on strike if Abuja had kept various agreements and Memoranda of Understanding (MoUs) it signed with the union in the past.
Hamman dismissed the objections and ordered ASUU to return to work, in line with the TDA, pending the determination of the suit.