The order of the National Industrial Court was delivered on September 21, 2022, by Justice Polycarp I. Hamman.
Academic Staff Union of Universities has asked the Court of Appeal to set aside the ruling of the National Industrial Court asking the lecturers to call off their 7-month-old strike and return to the classroom.
The order of the National Industrial Court was delivered on September 21, 2022, by Justice Polycarp I. Hamman.
The suit dated October 14, 2022, and numbered NICN/ABJ/270/2022 has ASUU as the Appellant and the Federal Government of Nigeria and the Minister of Education as the Respondents.
In the Notice of Appeal obtained by SaharaReporters on Sunday, the reliefs sought are an order allowing the appeal, an order setting aside the ruling of the National Industrial Court and “such further orders as the Court may deem fit”.
ASUU went on strike on February 14 to demand improved funding for universities, and a review of salaries for lecturers, among other issues.
Several meetings between ASUU and the Nigerian government ended in a deadlock.
Consequently, the Nigerian government approached the National Industrial Court to challenge the strike.
And on September 21, the court granted the government’s application for an interlocutory injunction to restrain ASUU from continuing with the strike pending the determination of the substantive suit.
Dissatisfied with the ruling, the union approached the Court of Appeal, seeking leave to challenge the lower court’s decision.
But a three-man panel of appellate court headed ordered the striking lecturers to obey the ruling of the National Industrial Court and return to the classroom effective from October 7.
The court however granted ASUU “conditional leave to appeal the order of the Industrial Court,” but insisted that ASUU should obey the order of the NIC.
ASUU eventually called off the strike but filed an appeal through its team of lawyers including Femi Falana, SAN; Professor Joash Ojo Amupitan, SAN; Professor Sylvester Shikyil, SAN; Professor Alphonsus Alubo, SAN; Professor Jamila M Nasir; Professor Patrick Oche; Funmi Falana, Mrs; Samuel Ogala, Esq; and Marshal Abubakar, Esq.
Falana earlier told journalists that no date had been fixed for hearing of the case.
The Notice of Appeal reads in part, “TAKE NOTICE that the Appellant being dissatisfied with the ruling of the National Industrial Court of Nigeria, Abuja Judicial Division delivered by Honourable HON. JUSTICE P. I. HAMMAN on the 21st Day of September, 2022, do hereby appeal to the Court of Appeal on the grounds set out in paragraph three (3) and will at the hearing of the appeal seek the reliefs set out in paragraph four (4).
“The appellant further states that the addresses of the persons directly affected by the appeal are set out in paragraph five (5).”
It noted that “the part of the decision complained of” is the “whole decision”.
ASUU, through its counsel, filed 14 grounds of appeal.
Ground One reads, “The learned Trial Judge erred in law and thereby occasioned a miscarriage of justice when he decided to hear and determine the Respondents' motion for interlocutory injunction when he knew or ought to have known that the substantive suit filed by the Claimant was not initiated by due process of law.”
The suit listed Particulars of Error as “i. The Referral dated 08th September was made without complying with the mandatory steps and procedure stipulated in part 1 of the Trade Disputes Act.
“ii. The learned trial judge acted ultra vires and without requisite jurisdiction in assuming jurisdiction.
“iii. The law is trite that it is only individuals that have direct access to the trial court, where unions and employers are involved in a trade dispute they must go through the Industrial Arbitration Panel (IAP).
“iv. The Hon. Minister of Labour and Employment failed to comply with the provisions of Part 1 of the Trade Disputes Act and thus this failure renders the referral and every process filed pursuant thereto incompetent as held in 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.”
Gound Two says, “The Learned Trial Judge misdirected himself in law and thereby occasioned a miscarriage of justice when he held that, ‘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’”.
It listed the following as part of the Particulars of Error for Ground Two: “i. In law, an application challenging the jurisdiction of a court takes precedence above any other application in a suit.
“ii. A court of law is bound to decide the question of its competence, one way or the other before taking steps in hearing and deciding any other issue in the suit.
iii. The law is trite that once a Referral has been filed before the court no party is allowed to go outside the Referral as held in the case of Seafarers Collaborative Union V. NUPENG (2013) 3 NLLR (Pt. 88) 137, National Headquarters of Nigerian Union of Civil Service, Typists, Stenographic and Allied Staff V. Federal Branch of NUCSTSAS (2010) 21 NLLR (Pt. 58) 24.
iv. 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.”
It further listed Grounds Three to Six as follows: “GROUND THREE. The Learned Trial Judge erred in law and thereby occasioned a miscarriage of justice when he granted the Respondents' application for interlocutory injunction pending the determination of the substantive suit on the basis of the incurably defective Referral filed on September 8, 2022.
“PARTICULARS OF ERROR: i. A court is bound to resolve issues surrounding the competence and validity of an initiating process before proceeding to grant reliefs in an application emanating therefrom.
“ii. It was established before the learned trial court that the Referral was incurably defective and bad and thus ought to be discountenanced as the learned trial court hath no business assuming jurisdiction.
“GROUND FOUR: The learned trial Judge erred in law and occasioned a miscarriage of justice when he made an order remitting the case file back to the President of the National Industrial Court despite the order made earlier for the accelerated hearing of the substantive suit.
“PARTICULARS OF ERROR: i. The Court having ruled that the matter is one of utmost urgency is bound to hear and determine the right of the parties thereto in an expedited manner.
“ii. The learned trial judge who was the vacation judge at the Abuja Judicial Division of the National Industrial Court having granted accelerated hearing ought to have heard and determined the suit particularly in view of the fact that the annual vacation of the trial Court subsists till the 27th day of September, 2022.
“iii. The decision to transfer the case to the Honourable President of the National Industrial Court was not contained in the Ruling of the Learned Trial Judge.
“iv. The decision to transfer the case to the Honourable President of the National Industrial Court was announced after the delivery of the Ruling of the Learned Trial Judge.
“GROUND FIVE: The learned trial Judge erred and occasioned a miscarriage of justice when he held, ‘ 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."
“PARTICULARS OF ERROR: i. The finding of the learned trial Court was contrary to and against the weight of evidence led at trial as there was uncontroverted evidence led to show that the strike commenced since February 14, 2022.
“ii. It is not in dispute that the Claimant only sent the referral instrument on the 08th September, 2022.
“iii. The learned trial judge relied on extraneous matters and fished for evidence in justifying the order of interlocutory injunction granted in favour of the Respondents.
“iv. The Appellant having shown through uncontroverted and irrefutable evidence that the Claimants waited for about seven months before approaching the trial Court for an order of interlocutory injunction, the court ought to have refused the application and proceeded on the accelerated hearing it already granted.
“GROUND SIX: The learned trial Judge misdirected himself in law and thereby occasioned a miscarriage of justice when he held that the balance of convenience, legal right and all other conditions tilt in favour of the claimants.
“PARTICULARS OF ERROR: i. The finding of the learned trial Court was contrary to and against the weight of evidence at trial as there was nothing from the Claimants to rebut the unflinching, credible and uncontroverted evidence led by the Defendant/Appellant at trial.
“ii. The learned trial Court delved into the arena, relied on extraneous matters and fished for evidence to arrive at his finding.
“iii. Having regard to the defective affidavit filed by the Respondents and the state of the law the Learned Trial Judge did not exercise his discretion judiciously and judicially.”