➥ CASE SUMMARY OF:
Federal Government, Federal Ministry of Education v. Academic Staff Union of Universities (ASUU) (2023) – NICN
by Branham Chima (SAL).
National Industrial Court of Nigeria – NICN/ABJ/270/2022
➥ JUDGEMENT DELIVERED ON:
30th May 2023
➥ AREA(S) OF LAW
Payment of salary during strike;
➥ PRINCIPLES OF LAW
⦿ PROCESS TO BE EXHIBITED ALONGSIDE APPLICATION FOR EXTENSION OF TIME
Besides the preliminary objection, the defendant did not file any other defence process within the time allowed it by the Court. The application by the defendant for leave to extend this time was rejected by the Court since copies of the defence processes were not exhibited alongside the application for extension of time. This meant that the defendant had no defence process in this suit. — B.B. Kanyip, J.
⦿ AFFIDAVIT FOR INTERLOCUTORY MOTION IS DIFFERENT FROM THAT OF MAIN SUIT
The long and short of it is that the defendant’s submission that the Court should consider its counter-affidavit to the claimants’ motion for interlocutory orders, having been moved and ruled on, cannot be considered as the defence of the defendant to the substantive suit. The counteraffidavit had served its purpose i.e. as the defence to the motion for interlocutory orders. It is not the defence of the defendant to the substantive suit … All this said, the oral application to use the defendant’s counter-affidavit to the motion of interlocutory orders in this judgment is hereby refused. I so rule. — B.B. Kanyip, J.
⦿ BLUNDERS SHOULD EARN NO SYMPATHY FROM THE COURT
Like I pointed out in the considered Bench ruling of 2 May 2023 in which I rejected the application for extension of time, strategic blunders by counsel in the conduct of a case should earn no sympathy from the court. See Isitor v. Fakorade  All FWLR (Pt. 955) 494 at 507 – 509 per His Lordship Eko, JSC. — B.B. Kanyip, J.
⦿ IT IS BETTER TO HAVE A BAD JUDGEMENT QUICKLY THAN A GOOD ONE TOO LATE
Furthermore, like I equally pointed out in the considered Bench ruling of 11 May 2023, citing Mr Victor Adegboyu v. UBA unreported Appeal No. CA/IL/20/2021, the judgment of which was delivered on 14 April 2022 per His Lordship Amadi, JCA, time is of the essence in labour adjudication; and so the mantra of labour adjudication is: it is better to have a bad judgment quickly, than a good one too late. See The Federal Polytechnic, Mubi v. Mr Emmanuel Peter Wahatana unreported Appeal No. CA/YL/175M/2021, the ruling of which was delivered on 27 April 2023 per His Lordship Affen, JCA. — B.B. Kanyip, J.
⦿ DESPITE NO PROCESS FROM DEFENDANT, CLAIMANT MUST STILL SATISFY THE COURT BEFORE HE CAN SUCCEED
But the fact that the defendants did not file any defence process does not absolve the claimant from proving its case to the satisfaction of this Court. In Attorney General Osun State v. NLC & ors  34 NLLR (Pt. 99) 278 NIC, given a similar scenario, this is what this Court said: The defendants at first did not enter any memorandum of appearance, or show up, or were represented by counsel, or file any defence process in this matter; and this was despite the service of the respective hearing notices on them. Order 9 of the National Industrial Court Rules 2007 enjoins a party served with a complaint and the accompanying originating processes and who intends to defend the action to file defence processes as provided therein. Order 9, therefore, recognizes the right of a defendant not to defend an action filed against him/her. And by Order 19 Rule 2, where the defendant is absent at the trial and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her. This Rule, of course, accords with the minimal evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano  25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye  4 NWLR (Pt. 1057) 218 SC at 247… See also The Shell Petroleum Development Company of Nigeria Limited v. The Minister of Petroleum Resources & 2 ors unreported Suit No. NICN/LA/178/2022, then judgment of which was delivered on 28 July 2022. — B.B. Kanyip, J.
And I must stress here, the legality or validity of a strike or industrial action is determined on a case by case basis. It is not carried over to another. — B.B. Kanyip, J.
⦿ CERTIFIED TRUE COPY OF UNREPORTED DECISION MUST BE PROVIDED BY COUNSEL
I need to point out that in paragraph 6.2 of their written address, the claimants referred to an unreported decision of the Court of Appeal: Appeal No: CA/A/122/2014: Federal Inland Revenue Service v. TSKJ Construcoes International Sociadade Unipersonal LDA delivered 17 July 2017. A copy of the unreported decision was not forwarded to this Court as enjoined by Order 45 Rule 3(1) of the NICN Rules 2017. This Court is accordingly not obliged to give any consideration to the cited unreported case (Appeal No: CA/A/122/2014). As His Lordship Augie, JSC intoned in Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor  LPELR-46413(SC). It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon – see Chidoka & anor v. First City Finance Co. Ltd  5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN  LPELR-43903(SC). — B.B. Kanyip, J.
⦿ EMPLOYER MAY WAVE “NO WORK NO PAY” DURING A STRIKE ACTION
Senior Staff Association of Nigerian Universities (SSANU) v. Federal Government of Nigeria (FGN) unreported Suit No. NIC/8/2004, as well as Oyo State Government v. Alhaji Bashir Apapa & ors  11 NLLR (Pt. 29) 284 are quite emphatic that it is perfectly lawful for an employer to choose to dispense with the ‘no work, no pay’ rule. In other words, payment of wages or salaries for the period of a strike action is lawful if an employer chooses to pay same and not to penalize the strikers in any other way for the strike. In the same vein, it is lawful for workers to agree with their employer that wages will be paid and no other detriment suffered even when strike actions are embarked on. The bottom line is that an agreement between an employer and strikers to pay wages or salaries for the period of a strike action is legal as the agreement acquires a life of its own, and section 43(1)(a) of the TDA cannot be called to use in such a case. — B.B. Kanyip, J.
⦿ NATIONAL INDUSTRIAL COURT APPLIES INTERNATIONAL BEST PRACTICES WHILE ADJUDICATING
Section 254C(1)(f) and (h), and (2) of the 1999 Constitution and section 7(6) of the National Industrial Court (NIC) Act 2006 permits this Court to, when adjudicating, apply international best practices in labour, and the Treaties, Conventions, Recommendations and Protocols on labour ratified by Nigeria. They accordingly form part of the corpus of our labour laws in the country, which can be judicially noticed … By 2020, His Lordship Ogakwu, JCA in Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola  LPELR-51806(CA) would read section 254C(1)(f) and (h), and (2) of the 1999 Constitution as imposing an “obligation on [the National Industrial Court of Nigeria – NICN] to now apply good or international best practices in adjudication”. — B.B. Kanyip, J.
⦿ NO MATTER HOW BRILLIANT COUNSEL SUBMISSION IS, IT CANNOT TAKE THE PLACE OF EVIDENCE
The argument of the claimants that to adopt UTAS will promote inefficiency and discrimination in the public service of Nigeria has not been shown by any evidence other than the submission of the learned senior counsel to the claimants. No matter how brilliantly crafted an address of counsel is, it neither constitutes, nor can it take the place of evidence. See APC v. Sheriff & ors  LPELR-59953(SC). And a a bare statement from the Bar by a counsel has no force of legal evidence. See Maduabuchi Onwuta v. The State of Lagos  LPELR-57962(SC). — B.B. Kanyip, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice B.B. Kanyip, PHD, OFR
⦿ FOR THE CLAIMANT
J.U.K. Igwe SAN
⦿ FOR THE RESPONDENT
HON. Justice B. B. Kanyip, PHD, OFR
➥ CASE FACT/HISTORY
The Honourable Minister of Labour and Employment, acting pursuant to section 17 of the Trade Disputes Act (TDA) Cap T8 LFN 2004, referred this matter to this Court vide a referral instrument dated 7 September 2022. The forwarding letter is, however, dated 8 September 2022.
The referral instrument reads thus:
WHEREAS a trade dispute has arisen and now exists between the Federal Government/Federal Ministry of Education and the Academic Staff Union of Universities (ASUU);
CONSIDERING the fact that members of ASUU have been on strike since February 14, 2022 till date even when the strike action/dispute had been apprehended by the Honourable Minister of Labour and Employment (HML&E);
AND WHEREAS all effort to promote settlement through Conciliation at the level of the Federal Ministry of Education (FME), and Tripartite-Plus Social Dialogue/Meeting which were on-going but had now failed;
FURTHER CONSIDERING that the Public Universities in the nation have been closed since the commencement of the strike, hereby jeopardizing the national Education system;
AND IN CONFORMITY with the provision of Section 17 of the Trade Disputes Act. CAP T8 Law of the Federation, 2004;
NOW THEREFORE, I. SENATOR (DR) CHRIS NWABUEZE NGIGE, OON, MD; THE HONOURABLE MINISTER OF LABOUR AND EMPLOYMENT, in the exercise of the powers conferred on me by Section 17 of the Trade Disputes Act CAP T8, Law of the Federation of Nigeria (LFN), 2002 (sic) hereby refer this matter to the National Industrial Court of Nigeria (NICN) for adjudication and to, inter alia: A. Inquire into the legality or otherwise of the on-going prolonged strike by ASUU leadership and members which had continued even after apprehension by the Minister of Labour and Employment.
➥ ISSUE(S) & RESOLUTION(S)
[SUCCEEDED IN, PART]
I. Whether ASUU and its members are entitled to salary for the period of the strike they embarked on?
RULING: IN CLAIMANT’S FAVOUR.
A. WORKER WHO TAKES PART IN STRIKE IS NOT ENTITLED TO WAGES
“Section 43(1)(a) of the TDA is quite clear in providing that notwithstanding anything contained in this Act or in any other law, where any worker takes part in a strike he shall not be entitled to any wages or other remuneration for the period of the strike.”
B. NO AGREEMENT THAT SALARY WILL BE PAID TO ASUU MEMBERS THEY GO ON STRIKE
“In the instant case, there is no such agreement before this Court on the part of the parties that salaries or wages would be paid to ASUU members for the period of the strike they embarked on. If anything, the claimants are praying this Court for a declaration that it shall be unlawful to pay wages or other remuneration to the academic workers in Universities in Nigeria who took part in the strike for the period of the strike beginning from 14 February 2022 to the day the strike ceases. On record, the claimants did not pay or agree to pay ASUU members wages or salaries for the period of the strike they embarked on. The claimants are not even ready to pay. Does this accord with the law? By section 43(1)(a) of the TDA, the answer is in the affirmative. Does ILO Convention No. 87 as well as the ILO jurisprudence in that regard lend further support to section 43 of the TDA? Going by SSANU v. FGN, the answer is in the affirmative. In that case it was pointed out that by para. 588 of the Freedom of Association: Digest of decisions and principles 18 of 29 of the Freedom of Association Committee of the Governing Body of the ILO, Fourth (revised) edition, Geneva, the norm is that ‘salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles’.”
II. Whether Federal Government can insist on IPPIS as method for payment of salary to ASUU?
RULING: IN RESPONDENT’S FAVOUR.
A. FEDERAL GOVERNMENT CANNOT INSIST ON IPPIS TO PAY ASUU MEMBERS
“Given these constitutional and statutory provisions, the claimants’ argument is that, aside from the right of the Federal Government as an employer of labour to determine the platform which is to be used in paying the wages or salaries of its employees, to adopt UTAS will promote inefficiency and discrimination in the public service of Nigeria. The proof of all this is the affidavit of Okechukwu Nwamba in support of the claimants’ case. Accordingly, in paragraph 10 of the affidavit of Okechukwu Nwamba on behalf of the Federal Ministry of Labour and Employment/Federal Government, it is stated thus: The University Transparency and Accountability Solution UTAS being insisted upon for adoption by the Academic Staff Union of Universities failed the technical integrity, vulnerability and stress test made by the National Information Technology Development Agency. Beyond this assertion by Okechukwu Nwamba, the proof of the failure of UTAS of the technical integrity, vulnerability and stress test made by NITDA was not exhibited. And so, it is questionable this piece of evidence by Okechukwu Nwamba, who is not even a staff of NITDA. Hear His Lordship in Ibeto & anor v. Oguh  LPELR-56803(CA): The rather forceful submission of learned counsel for the Respondent to the effect that ‘a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true and same will be admitted in Court as evidence and not treated as hearsay provided that such deponent disclosed the source of his/her information’ clearly loses sight of the probative value or forensic utility of such evidence. Whilst it is correct that Section 115(4) of the Evidence Act 2011 permits a deponent to swear to facts derived from a third party in an affidavit insofar as the source of his information is properly disclosed, such depositions are of very little forensic Utility as they constitute hearsay evidence. The factum that such information was given is all that there is to such information, but qualitatively, the truth of such information is a different thing entirely: it is hearsay evidence as to the truth which remains inadmissible.”
B. AFFIDAVIT HEARSAY EVIDENCE
“By these authorities, the affidavit evidence of Okechukwu Nwamba is hearsay evidence; and so must be discountenanced by this Court, which I hereby do.”
C. UNIVERSITIES HAVE CERTAIN AUTONOMY
“University autonomy would, therefore, mean the independence of the University from the State and other pressures of the society in order to make decisions regarding its self-governance, finance, administration and establish its policies. University autonomy comes in four fronts: academic, organizational, financial and staff autonomy. But this does not mean that Government no longer has a say or stake in the Universities. By section 2AA as inserted by the Universities (Miscellaneous Provisions) (Amendment) Act 2003, a University is no longer bound by establishment circulars that are inconsistent with the enabling statutes and laws of the University. So, can the directive of the claimants that Universities should fall within the dragnet of IPPIS as the platform for paying their staff salaries be said to be in consonance with the autonomy 25 of 29 envisaged under the Universities (Miscellaneous Provisions) (Amendment) Act 2003? I do not think so. Section 2AAA as insetted by the Universities (Miscellaneous Provisions) (Amendment) Act 2003 obliges the Council of a University, in the discharge of its functions, to ensure that disbursement of funds of the University complies with the approved budgetary ratio for personnel cost. Personnel cost relates to salaries and other perquisites of employment. So long as each University complies with the budgetary ratio for personnel cost, it is not open to the claimants to dictate to the Universities the platform to be used in paying salaries. This is against the letter and spirit of autonomy granted the Universities by the Universities (Miscellaneous Provisions) (Amendment) Act 2003.”
D. COUNCIL OF A UNIVERSITY CAN DETERMINE THEIR PAYMENT PLATFORM
“This rejection of UTAS in favour of IPPIS by the Federal Government is not in tandem with the letter and spirit of autonomy granted the Universities by the Universities (Miscellaneous Provisions) (Amendment) Act 2003 and even the acknowledgement in Exhibit 4 “that any other payments outside the consolidated salary as offered by Government would be borne by the respective Governing Councils of the Universities”. If it is within the remit of University Councils to do this, it can as well be within their remit to ascertain the payment platform of their salaries. This being so, I must answer referral issue D against the claimants. The claimants were wrong to have imposed IPPIS on the defendant. I so rule.”
III. Whether ASUU can mandate the Federal Government to send a draft bill to the National Assembly or interfere in a draft bill?
RULING: IN CLAIMANT’S FAVOUR.
A. ASUU CANNOT MANDATE FEDERAL GOVERNMENT TO INFLUENCE THE NATIONAL ASSEMBLY
“This should not in the first place be an item of a trade union agreement since it cannot be policed. If ASUU feels strongly about this, as a trade union, their recourse must be to the National Assembly itself where they can put forward their stance in opposition to the said draft bill. Calling on the Executive arm of Government to intervene is uncalled for. This said, I must note that the argument of the claimants that there is a limit to which the Executive arm of Government can interfere with the Legislative arm of Government is blind to the fact that it is the Executive arm of Government, in the person of the President, Commander-in-Chief of the Armed Forces, that signs Bills into law. This role is profound in the law making process, as without it, there can be no valid statute except overridden by two-third votes of the National Assembly.”
“I declare that in the instant case, the claimants are legally permitted, not just by section 43(1)(a) of the TDA, but by ILO Convention No. 87 and its accompanying ILO jurisprudence, to withhold, and so not pay, the salaries of members of the defendant union (ASUU) who partook in the strike that commenced on 14 February 2022 up to the date it was called off.
The prayer of the claimants that the period of the strike embarked upon by members of the defendant union (ASUU) shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected is rejected and dismissed.
I declare that the claimants acted in error to impose IPPIS on the defendant union (ASUU). The issue of which payment platform is to be used in paying the salaries or wages of staff of the Universities is one that is within the discretion of the individual Councils of the Universities in line with the autonomy granted them by the Universities (Miscellaneous Provisions) (Amendment) Act 2003.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 43 of the TDA, which provides as follows: (1) Notwithstanding anything contained in this Act or in any other law (a) where any worker takes part in a strike he shall not be entitled to any wages or other remuneration for the period of the strike and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly; and (b) where any employer locks out his workers the workers shall be entitled to wages and any other applicable remuneration for the period of lockout and the period of the lockout shall not prejudicially affect any rights of the workers being rights dependent on the continuity of period of employment. (2) If any question should arise as to whether there has been a lockout for the purposes of this section, the question shall on application to the Minister by the workers or their representatives be determined by the Minister whose decision shall be final.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)