Says NIC judgement occasioned a miscarriage of justice
The Academic Staff Union of Universities, ASUU, on Friday, approached the Court of Appeal sitting in Abuja, asking it to set aside the judgement of the National Industrial Court, NIC, that ordered it to call off it’s over seven-month-old strike action.
The union, in a 14-ground of appeal, lodged through its team of lawyers led by a frontline human rights activist, Mr Femi Falana, SAN, equally applied for a stay of execution of the judgement.
It will be recalled that the NIC had in a judgement delivered last Wednesday by Justice Polycarp Hamman, ordered the striking varsity lecturers to return to the classroom, pending the determination of a suit the Federal Government filed to query the legality of their strike action.
The interim injunction directing ASUU members to resume work followed an application FG filed through its lawyer, Mr James Igwe.
Justice Hamman held that the order was both in the national interest and for the sake of undergraduates in the country that have been at home since February 14.
He held 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.
However, ASUU, in its appeal, maintained that Justice 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”.
It argued that the mandatory steps and procedure stipulated in Part 1 of the Trade Dispute Act, TDA, were not followed by FG.
Moreso, ASUU averred that the trial judge acted ultra vires and misdirected himself when he unlawfully assumed jurisdiction to entertain the matter, adding that what was granted as an interlocutory order was the same relief FG 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 added.
ASUU further told the appellate court that it showed “uncontroverted and irrefutable evidence” that FG waited for about seven months before approaching the NIC for the order of interlocutory injunction”.
It insisted 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.
ASUU said it was totally “dissatisfied with the decision” of the trial court which it said should not only be stayed from being executed, but also set aside in its entirety.
It said 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”, ASUU added.
ASUU had on February 14, embarked on an initial four-week strike to press home its demands that included improved funding for universities, as well as a review of salaries for lecturers.
It subsequently extended the strike action indefinitely on August 29, following the breakdown of negotiations between the union and the government.
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.
Specifically, it 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”.
As well as requested, “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, 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.
Besides, Falana, SAN, argued that FG failed to follow the 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 Memorandum of Understanding, MoU, it signed with the union in the past.
Justice Hamman dismissed the objections and ordered the striking varsity lecturers to, in line with provisions of the TDA, return to the classroom, pending the final determination of the suit before the court.
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