➥ CASE SUMMARY OF:
Federal Government of Nigeria (FRN) & Anor. v Academic Staff Union of Universities (ASUU) (2022) – NICN
by “PipAr” B.C. Chima
➥ COURT:
National Industrial Court of Nigeria – NICN/ABJ/270/2022
➥ JUDGEMENT DELIVERED ON:
21st September, 2022
➥ AREA(S) OF LAW
Industrial action (ASUU strike).
➥ NOTABLE DICTA
⦿ THE NATIONAL INDUSTRIAL COURT CAN DEPART FROM THE EVIDENCE ACT
“In any event, section 12(2)(b) of the National Industrial Court Act, 2006 and Order 5 Rule 6 (b) of the Rules of this Court 2017 allows this court to depart from the Evidence Act in the interest of justice, fairness, equity and fair-play. See the case of Mr. Victor Adegboyu V. United Bank for Africa (unreported) Appeal No. CA/IL/20/2021, a decision of the Court of Appeal Ilorin Judicial Division delivered on the 14th day of April, 2022, where the Court of Appeal applied section 12(2) of the National Industrial Court Act 2006 and departed from the provisions of the Evidence Act 2011.” — P.I. Hamman, J. per para. 2.6.
⦿ NATURE OF AN INJUNCTIVE RELIEF
“It has been held in a legion of cases that an interlocutory injunction which is usually granted at the discretion of the court is an equitable remedy granted before or during trial to prevent an irreparable injury from occurring before the court has the opportunity to finally determine the case before it. Its main purpose is to keep the parties to an action in status quo in which they were before the judgment on the act complained of; to protect the applicant against injury which damages cannot be adequate compensation if at the end of the trial the applicant succeeds in obtaining judgment in the suit. See Globe Fishing Industries Limited and Ors V. Chief Folarin Coker (1990) LPELR-1325(SC), Chief Samuel Adebisi Falomo V. Oba Omoniyi Banigbe and Ors (1998) LPELR-1237(SC) and Dekit Construction Co. Ltd. & Anor. V. Musibau Adebayo & Ors. (2010) LPELR-4030(CA). The onus is therefore on an applicant(s) seeking an injunctive relief from the court to satisfy the court by way of affidavit evidence and other relevant materials that he/they is/are entitled to the injunctive relief(s) being sought from the court. See The Attorney-General of Anambra State V. The Attorney-General of the Federal Republic of Nigeria & 35 others (2005) 9 N.W.L.R (Part 931)572 at 634 paras. C – E.” — P.I. Hamman, J. per paras. 2.8 – 2.9.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice P. I. Hamman (Vacation Judge)
➥ APPEARANCES
⦿ FOR THE APPLICANT
J.U.K. Igwe, SAN.
⦿ FOR THE RESPONDENT
Femi Falana, SAN.
➥ CASE HISTORY
By a letter dated 8th of September, 2022 the Honourable Minister, Federal Ministry of Labour and Employment forwarded to this Court a Referral Instrument in respect of the trade dispute between the parties for adjudication pursuant to section 17 of the Trade Disputes Act, Cap. T8, Laws of the Federation of Nigeria (LFN), 2004.
This Ruling is in respect of the Claimants/Applicants’ Motion on Notice for Interlocutory Injunction dated and filed on the 12th of September, 2022. The application which is brought pursuant to sections 6(a) and (b) and 254C(1)(C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), section 7(1)(b) of the National Industrial Court Act, 2006, Order 17 Rule (1), (13) and Order 22 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and under the inherent jurisdiction of this court prays for the following reliefs:
1. An order of this Honourable Court granting an interlocutory injunction restraining the Academic Staff Union of Universities, by themselves, members, agents, servants, privies or howsoever called from taking further steps and doing any act or otherwise continuing with the indefinite strike or any strike action pending the hearing and determination of the suit/referral to this Honourable Court dated 8 September 2022 made at the instance of the Minister of Labour and Employment as a matter of national interest pursuant to his powers under Section 17 of the Trade Disputes Act.
2. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: OVERRULED]
I. Whether paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20 of the Claimants Affidavit is not incompetent and as such ought to be struck out?
RULING: IN APPLICANT’S FAVOUR.
A. Para. 2.2: “I have carefully gone through the said paragraphs of the supporting affidavit and seen that they only relate to the events that spurred the instant suit before the court, and the effect of the strike action on the lives, values and wellbeing of the students in the public universities in this country. While I agree with Falana, SAN that by section 115 of the Evidence Act, 2011 an affidavit is not to contain extraneous matters by way of objection, prayer, legal argument or conclusion, I have however not seen where the said paragraphs of the affidavit in support of the application offend section 115 of the Evidence Act as contended by the learned silk.”
.
.
II. Whether facts deposed in the Applicant’s affidavit are hearsay?
RULING: IN APPLICANT’S FAVOUR.
A. Para. 2.5 – 2.6: “By section 115(1), (3) and (4) of the Evidence Act, 2011 (as amended), every affidavit for use in a court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true; and where the information is received from another person, the name of the informant including reasonable particulars of such informant shall be stated, as well as the time, place and circumstance of the information. It is obvious from the paragraphs of the supporting affidavit reproduced above that the deponent Okechukwu Nwamba who is the Legal Adviser of the Federal Ministry of Labour and Employment is a very senior officer of the Ministry, and a member of the Management of the Ministry. By virtue of his position as the Legal Adviser he is expected to have access to and keep custody of legal documents in the Ministry, and also gives legal opinion to the Hon. Minister on all legal issues that may arise in the Ministry. I do not see how the information in the affidavit in support of the application amounts to hearsay. The paragraphs of the supporting affidavit are competent and shall be countenanced in this decision. In any event, section 12(2)(b) of the National Industrial Court Act, 2006 and Order 5 Rule 6 (b) of the Rules of this Court 2017 allows this court to depart from the Evidence Act in the interest of justice, fairness, equity and fair-play. See the case of Mr. Victor Adegboyu V. United Bank for Africa (unreported) Appeal No. CA/IL/20/2021, a decision of the Court of Appeal Ilorin Judicial Division delivered on the 14th day of April, 2022, where the Court of Appeal applied section 12(2) of the National Industrial Court Act 2006 and departed from the provisions of the Evidence Act 2011.”
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[INTERLOCUTORY APPLICATION: GRANTED]
I. Whether this Honourable Court has powers to grant the Reliefs sought by the Claimant/Applicant, & Whether the Applicant has met the requirements for the grant of an Interlocutory Injunction in its favour?
RULING: IN APPLICANT’S FAVOUR.
A. Para. 2.12: “With respect to the requirement for serious question to be tried, I hold that by paragraphs 5, 6, 7, 8 and 13 of the supporting affidavit, paragraphs 3, 5, 6 and 7 of the Counter Affidavit and exhibit 3 annexed to the supporting affidavit, as well as exhibits ASUU 1 to ASUU 7 annexed to the Counter-Affidavit, there are serious issues to be tried in this suit by the court. Those issues also relate to the legal rights of the defendants who are the owners of the Federal Public Universities to approach this court for adjudication.”
B. Para. 2.13: “On the requirement of balance of convenience, there is no doubt that the balance of convenience tilts in favour of the Claimants/Applicants who are the owners of the federal public universities where the members of the Defendant/Respondent have been on strike for over a period of seven (7) months now. The Claimants/Applicants stand to lose more if the application is not granted. It may be appropriate to state here that, in the circumstance of the trade dispute between the parties in this suit, this court has also taken into consideration the larger interests of the public, particularly the innocent students in the public universities most of whose parents and guardians cannot afford the enormous amount of money required to either send them to private universities within the country or take them outside this country for undergraduate or graduate studies. These innocent students who are the victims of the protracted strike have been out of school for more than seven (7) months now in a country where age is a major factor in virtually everything including employment. The point being made is that, even where the lost academic semesters/sessions are covered upon resumption, the increase in the age of these students who are being deprived of the opportunity to complete their studies as and when due cannot be reversed. Section 2 (2) of the National Youth Service Corps Act for example prohibits any person who is over the age of thirty (30) at the date of graduation from being enlisted into the Service Corps. Many individuals who would have graduated before the age of 30 and have their lifetime ambition of serving their fatherland as corps members achieved have been denied and deprived of the opportunity as a result of the prolonged industrial action due to no fault of theirs. Even in the area of employment for instance, part of the requirement of persons who want to enlist into the Nigerian Army Direct Short Service Commission Course 26/2022 is to be between the ages of 20 and 30 years and 25-40 years of age for Medical Consultants. The same age requirement applies to the enlistment into the Nigerian Air Force Direct Short Service Commission Course, to mention but a few instances.”
C. Para. 2:14: “In the case of Florence Owolabi Enterprises Ltd V. Wema Bank Plc (2011) LPELR 4168 (CA), the Court of Appeal held that, “In determining the balance of convenience in the consideration of an application for interlocutory injunction, the trial court is expected to pose one or two questions: who will suffer more inconvenience if the application is granted? Who will suffer more inconvenience if the application is not granted? The trial court has a duty to provide an answer to the questions, and in doing so it must allow itself to be guided by the facts before it. The balance of convenience between the parties is a basic determinant factor in an application for interlocutory injunction. In the determination of this factor, the law requires some measurements of the scale of justice to where the pendulum tilts. While the law does not require mathematical exactness, it is the intention of the law that the pendulum should really tilt on the Applicant.””
D. Para. 2:15: “With respect to the requirement for inadequacy of damages and undertaking as to damages, it is manifest from the circumstances of this suit that the amount of damages and injury being caused to the education sector of this nation and the innocent students in the public universities as a result of the lengthened strike action is irreparable, and no amount of compensation can be enough or adequate for the losses. I have also seen that apart from paragraph 17 of the affidavit in support of the application where the Claimants/Applicants undertake to indemnify the Defendant/Respondent for any damage that may occur if at the end of the day it is found out that the application should not have been granted, they have also filed before this court an affidavit of undertaking as to damages containing 5 paragraphs deposed to by Okechukwu Nwamba on the 12th day of September, 2022.”
E. Para. 2:16: “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. The Referral to this court was made on the 8th of September, 2022, while the instant application was filed on the 12th of September, 2022. I therefore hold that the conduct of the Claimants/Applicants have not been reprehensible as there is no undue delay on their part.”
F. Para. 2:18: “There is no doubt that the use of the word “shall” in section 18(1)(e) of the Trade Disputes Act reproduced above connotes mandatory obligation or duty on the part of employers and employees not to declare or partake in any lock-out or strike when a dispute has been referred to this court, and where such lock-out or strike is ongoing at the time of the Referral to this court, it shall cease or abate pending the determination of the suit. That is the only literal interpretation or construction to be given to the clear and unambiguous provision of section 18(1)(e) of the Trade Disputes Act.”
.
.
.
✓ DECISION:
At paras. 2.21 – 2.22: “In the circumstance, and on the strengths of section 254C(1)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), section 18(1)(e) of the Trade Disputes Act, sections 7(1)(b), 16 and 19(e) of the National Industrial Court Act 2006, I hold that this application is meritorious and same is hereby granted. The lone issue identified for determination is resolved in favour of the Claimants/Applicants. In the final result, the Court hereby orders as follows: An order of interlocutory injunction is hereby granted restraining the Defendant/Respondent (Academic Staff Union of Universities, ASUU) by themselves, members, agents, servants, privies or howsoever called from taking further steps and doing any act or otherwise continuing with the indefinite strike or any strike action pending the hearing and determination of the suit/referral to this Honourable Court dated 8th September 2022 made at the instance of the Minister of Labour and Employment as a matter of national interest pursuant to his powers under Section 17 of the Trade Disputes Act.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 18 Trade Dispute Act.
➥ REFERENCED (CASE)
⦿ NATURE OF INJUNCTION – NATURE AND REQUIREMENTS FOR INTERIM INJUNCTION
At para. 2.10: In the case of Mr. Francis Temewei & Others V. Mr. Tom Benbai & Others (2015) LPELR-25131(CA), the Court of Appeal per Bada, J.C.A. held as follows on the conditions for the grant of an interlocutory injunction: “Black’s Law Dictionary 6th Edition page 714 defined “Injunction” as an order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. In Adenuga Vs Odunewu (2001) 2 NWLR Part 696 Page 184, the Supreme Court per Karibi-Whyte JSC defined “injunction” at Page 185 as follows: “an equitable order restraining the person to whom it is directed from doing things specified in the order or requiring in exceptional situations the performance of a specific act.” The preservation of the subject matter i. e. “res” in dispute or the maintenance of the “status quo” is achieved through the judicial process of the equitable order of injunction. And since injunction is an equitable remedy, it is usually granted at the discretion of the court which must be exercised judicially and judiciously. For the court to exercise its discretion in favour of an applicant, certain conditions must exist and this must be shown in the affidavit accompanying the motion on notice. The conditions for grant of interim and interlocutory injunctions are basically the same except for the element of urgency in interim injunction which is not pronounced in interlocutory injunction. The conditions include: a. Existence of a legal right; b. Substantial issue to be tried; c. Balance of convenience; d. Irreparable damage; or injury e. Conduct of the parties; f. Undertaking as to damages.”
⦿ MEANING OF THE WORD “SHALL” – IT IS A COMMAND
At para. 2.19: In the case of Dr. Arthur Agwuncha Nwankwo and Ors V. Alhaji Umaru Yar’Adua and Ors. (2010) LPELR-2109(SC), the apex Court held as follows on the interpretation to be accorded the word ‘shall’ in a statute, “The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. Bamaiyi V. A.G. Federation (2001) 12 NWLR Pt. 722 pg. 468 Ifezue V. Mbadugha (1984) 1 SCNLR pg. 427 Chukwuka V. Ezulike (1986) 5 NWLR pt. 45 pg. 892, Ngige V. Obi (2006) 14 NWLR pt. 991, pg. 1.” See also Chika Madumere and Anor V. Barrister Obinna Okwara and Anor (2013) LPELR-20752(SC).
➥ REFERENCED (OTHERS)