➥ CASE SUMMARY OF:
Federal Government v. Academic Staff Union of Universities (ASUU) (2023) – NICN
by “PipAr” Branham-Paul C. Chima, SAL.
National Industrial Court of Nigeria – NICN/ABJ/270/2022
➥ JUDGEMENT DELIVERED ON:
28th March 2023
➥ AREA(S) OF LAW
Referral by minister;
Affidavit in support of preliminary objection.
➥ PRINCIPLES OF LAW
⦿ UNNECESSARY ADDITIONAL AUTHORITY
Hotel & Personal Services Senior Staff Association v. Ikeja Hotels Plc submitted as “additional authority” for the proposition that originating processes are the determinant of a court’s jurisdiction is rather unhelpful to the defendant. The claimant in that case came by way of a complaint, not a referral as is the case in the instant suit. The long and short of it is that what the defendant filed yesterday Monday 27 March 2023 as “Additional Authorities” is unnecessary as it adds nothing to the defendant’s case. If anything, it is an overburden to this Court. — B.B. Kanyip J.
⦿ MEANING AND NATURE OF ADDITIONAL AUTHORITY
Where a counsel after adoption of counsel’s Written Address discovers new judicial authorities applicable to the issues canvassed, the counsel shall send the new judicial authorities to the Court and the opposing counsel. The opposing counsel shall have right of re-action. The new judicial authorities referred to here do not include statutory provisions as the defendant did in terms of its third part of the “Additional Authorities”. Secondly, the new judicial authorities referred to by Order 45 Rule 5 are simply the judicial authorities, not another address masquerading as new judicial authorities. This means that new judicial authorities must be either in their raw state or simply listed out. The best counsel can do is to simply state as to what point/issue each new judicial authority is meant to support. Anything beyond this is simply having another bite at the cherry when addresses should have been closed. Lastly, as the words imply, “new judicial authorities” means authorities that are new — authorities that could not have been known as at the time of filing the written address(es). For the defendant to send as “new judicial authorities”, 1987, 2009, 2010 and 2014 authorities as additional authorities after filing its written address does not meet the meaning, import and spirit of Order 45 Rule 5 of the NICN Rules. This is wrong of counsel for the defendant or any counsel for that matter and must not be repeated. — B.B. Kanyip J.
⦿ COUNSEL MUST PROVIDE CITATION OF AUTHORITY OR CCT IF NOT REPORTED
In its written address in support of the preliminary objection, as well as the reply on points of law, the defendant cited a number of case law authorities without giving any citation, or where citation was given, it was improper. The claimants variously pointed these out in their reaction to the defendant. This is in addition to some of the judgments of this Court that the defendant referred to especially in the reply on points of law that are unreported but which the defendant did not supply their certified true copies as enjoined by Order 45 Rule 3(1) of the NICN Rules 2017. This Court is accordingly not obliged to give any consideration to such case law authorities. 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.
⦿ WHERE NO AFFIDAVIT SUPPORTS PRELIMINARY OBJECTION
The defendant in filing its preliminary objection did not file any affidavit in support, which effectively made its preliminary objection one of law. — B.B. Kanyip J.
⦿ RULES OF COURT VIOLATED SHOULD BE STATED
The question remains whether the claimants were wrong in filing an affidavit when the defendant did not file any as to its preliminary objection. I must first point out that the argument of the defendant, that the claimants violated the Rules of this Court in filing an affidavit in opposition to the preliminary objection when the defendant did not, is one the defendant made without stating the Rules of this Court that were violated. — B.B. Kanyip J.
⦿ AFFIDAVIT SHOULD BE FILED WHERE THERE ARE ISSUES OF FACTS IN PRELIMINARY OBJECTION
Grounds (v), (vi) and (vii) of the preliminary objection themselves raise issues of facts, at best issues of mixed law and facts, for which the defendant ought to have filed a supporting affidavit. The defendant did not. Grounds (v), (vi) and (vii) are respectively stated to be thus: (v) The Plaintiffs’ Suit does not disclose a reasonable cause of action against the Defendants. (vi) The Plaintiffs’ Suit is lacking in bona fide, as it was filed to harass, irritate and embarrass the Defendant, which constitutes an abuse of judicial process. (vii) The ministers (sic) Referral offends the twin pillar of Justice – nemo judex in causa sua and audi alterem partem. These are not grounds that can be resolved without the facts upon which they are based — facts that ought to come by way of an affidavit from the defendant. — B.B. Kanyip J.
⦿ AGENCIES WITH STATUTORY POWERS TO INVESTIGATE CANNOT BE RESTRAINED BY LITIGATION
In respect of agencies, the courts have held that agencies vested with statutory powers to investigate, say, crimes cannot be restrained or arm-twisted by litigation to prevent them from exercising their statutory powers. See Ewulo v. EFCC & Ors.  LPELR-40912(CA). What more of the Minister! Courts have also generally cautioned against the issue of perpetual injunction divesting of the performance of statutory duty. See AG, Kwara State & anor v. Kolawole  LPELR-44982(CA). — B.B. Kanyip J.
⦿ PAPER OF WRIT, PETITION, AND OTHER COURT PROCESSES COULD REPLACE AN AFFIDAVIT
I acknowledge that there is no hard and fast rule that a preliminary objection must be supported by an affidavit so long as enough material is placed before the trial court on which it can judicially and judiciously pronounce on the preliminary objection. Where the alleged offending writ, petition or other court process ex facie contains the relevant information against which an objection is being raised, the necessity to rely on affidavit evidence does not arise. See Bello v. National Bank of Nigeria  6 NWLR (Pt. 246) 206 at 219 (per Achike, JCA, as he then was). — B.B. Kanyip J.
⦿ IF FACTS ARE RAISED IN PRELIMINARY OBJECTION, AN AFFIDAVIT MUST BE FILED
In Ama v. Nwankwo  12 NWLR (Pt. 1049) 552 at 578, Rhodes-Vivour, JCA (as he then was) stated the position of the law relating to preliminary objection vis-à-vis the necessity of filing a supporting affidavit thusly: Preliminary objection strictly speaking deals with law. Consequently there is no need for supporting affidavit, but the grounds of the objection must be clearly stated. For example, objection that court process has not been complied with, suit/process is an abuse of process. When, as often happens a preliminary objection strays from law to facts of the case, the onus is on the party relying on the preliminary objection to justify the facts, and this can only be done by filing an affidavit. A preliminary objection may be supported by affidavit depending on what is being objected to. If the preliminary objection is on law, an affidavit is unnecessary, but if on facts an affidavit is mandatory (emphasis is this Court’s). — B.B. Kanyip J.
⦿ WHERE AFFIDAVIT MAY OR MAY NOT BE NECESSARY TO ACCOMPANY A PRELIMINARY OBJECTION
Chief Hilary Ezugwu & Anor. v. IGP & 6 ors unreported Suit No. FCT/HC/CV/1168/2010, the ruling of which was delivered on 31 March 2010 per Affen J (now JCA) presents a similar scenario as the instant case. In Chief Hilary Ezugwu & Anor. v. IGP & 6 Ors., a preliminary objection was raised by the defendants on grounds of non-disclosure of reasonable cause of action, and abuse of court process. Although no affidavit in support was filed, a photocopy of the writ of summons, statement of claim and allied court processes of another case, suit No. FCT/ HC/CV/1959/2009, upon which the defendants relied as the basis for alleging abuse of court process, were annexed to the preliminary objection. On the propriety of annexing court processes (or indeed any other document) to a bare notice of preliminary objection, Affen J (now JCA) held thus: “… The law, as I have always understood it, is that a party raising a preliminary point of objection who intends to rely on facts ought to file a supporting affidavit deposing copiously to those facts. It is only where the objection is predicated on grounds of law and reliance is placed on documents already before the court that no need arises for the objector to file a supporting affidavit. Like pleadings, the object of a notice of preliminary objection is to give notice to the opposing side of the case to be made which enables each party to prepare for arguments upon the issues subject matter of the objection and this saves the opposing party from being taken by surprise. See CHIEF WILSON OKOI & ORS v CHIEF IBIANG & ORS  20 WRN 146 at 155.” It seems to me that there is no hard and fast rule that a preliminary objection need be supported by an affidavit so long as enough material is placed before the trial court on which it can judicially and judiciously pronounce on the preliminary objection. Where the alleged offending writ or petition ex facie contains the relevant information against which an objection is being raised, the necessity to rely on affidavit evidence does not arise. — B.B. Kanyip J.
⦿ REFERRAL AS A PROCESS FOR INSTITUTING ACTIONS
Now, the referral process of initiating an action in this Court is a special one. The referral is made by the Minister of Labour in terms of the processes of Part I of the Trade Disputes Act (TDA) Cap T8 LFN 2004. Until the referred parties come before this Court and are given directions by the Court as to who becomes the claimant and what processes are to be filed depending on whether the referral is a direct reference to this Court or a referral against the decision of the IAP based on an objection to an IAP award, the referral remains the initiating process that commences the suit being referred to this Court. As just indicated, the referral is of two types: referral based on an objection to an IAP award; and referral based on a direct reference to this Court where all other processes of Part I of the TDA are bypassed. — B.B. Kanyip J.
⦿ PARTIES CANNOT GO OUTSIDE THE TERMS OF THE REFERRAL
This Court cannot go outside of the terms of the referral just as the parties cannot too. So, where the competence of the referral is challenged as the defendant did in the instant case, they can only argue based on the referral instrument, nothing else. And in arguing, it cannot raise issues of facts, only of law. Where issues of facts, or mixed law and facts, are raised in the argument in support of the preliminary objection, then an affidavit becomes necessary. — B.B. Kanyip J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice B.B. Kanyip, PHD, OFR.
⦿ FOR THE APPELLANT
J.U.K. Igwe SAN
⦿ FOR THE RESPONDENT
Femi Falana SAN
➥ 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 the National Industrial Court of Nigeria (NICN) for adjudication and to, inter alia: “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.”
In the hearing of this matter, the defendant filed on 16 September 2022 a preliminary objection pursuant to sections 36(1), 6(6)(b), 251(1)(n) of the 1999 Constitution, Order 3 Rules 1 and 6 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), sections 14, 6, 8 and 17 of the TDA and under the inherent jurisdiction of the Court. The defendant is praying the Court for: “AN ORDER of this Honourable Court striking out the Claimants’ Suit for being incompetent and incurably defective thereby robbing this Honourable Court of requisite jurisdiction to hear and determine same.”
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: OVERRULED]
I. Whether or not the Claimant/Respondent filing an affidavit when none was filed by the objector in support of the preliminary objection is valid?
RULING: IN CLAIMANT/RESPONDENT FAVOUR.
A. AN AFFIDAVIT IS NECESSARY WHERE DISPUTE OF FACTS ARE IN CONTEST
“The defendant had argued that what is needed for the Minister to make a valid referral under section of the TDA is that he must comply with section 6 of the TDA. The claimants must counter this if the argument of the defendant is not to be sustained. The only manner of countering this is to show that the Minister complied with section 6 or section 8(5) of the TDA, both of which talk of the Minister receiving a report. How can the claimants show that the Minister received the report talked of if not by way of an affidavit, if Ama v. Nwankwo and Chief Hilary Ezugwu & anor v. IGP & 6 ors are anything to go by? And this is exactly what the claimants did. So the defendant’s challenge to the affidavit of the claimants is uncalled for since the arguments of the defendant called for a consideration of matters of mixed law and facts. I accordingly rule that the claimants’ affidavit is valid.”
II. Whether or not a referral is the appropriate mode for commencing this action?
RULING: IN CLAIMANT/RESPONDENT FAVOUR.
A. A “REFERRAL” IS A PROPER MODE OF COMMENCEMENT OF ACTIONS BY THE MINISTER
“The argument of the defendant in its reply on points of law that, contrary to the submission of the claimants, a referral is not a mode of commencing an action where the person making the referral is a party to the dispute upon which the referral is made, is not only wrong but misconceives the law. A referral is a mode of commencing an action in this Court. Order 3 Rule 1(1)(f) of the NICN Rules 2017, quoted by the defendant itself in its written address, is explicit in stating that referral from the Minister of Labour is one of the forms of commencement of an action in this Court. That the defendant would be saying something else in its reply on points is quite disturbing and would pass as a very disappointing low. The defendant would further, in its reply on points of law, deprecate the claimants for insisting on referral as a mode of commencing an action in this Court, stressing in the process that the complaint is the appropriate form of commencing the present action.”
“The argument of the defendant here is based on two fallacies: that the claimants initiated this action; and that the claimants and the Minister of Labour are one and the same even given the processes of Part I of the TDA. The simple argument of the claimants is that the issues in dispute as referred to this Court by the Minister of Labour are issues of both interpretation and trial, which the referral mode of commencement suits. I already explained the special nature of the referral process as it pertains to this Court. Once the defendant appreciates this process, the very basis of its preliminary objection would be unnecessary. So, when the defendant argued in its reply on points of law that “it is sad that the claimants misconstrue the objection of the defendants in the instant suit”, it is actually the defendant who misunderstands the position of the claimants and the law.”
“The further argument of the defendant in paragraph 4.4 of its written address that the Minister of Labour is a major participant and partaker of the trade dispute existing inter parties, and so he cannot purport to refer a dispute he is a staunch antagonist to under either section 14 or 17 of the TDA, suffers from two fronts: firstly, in the absence of an affidavit, how did the defendant come to the conclusion that the Minister of Labour is a staunch antagonist to the dispute in issue? Secondly, the defendant misses the point that the Minister of Labour was performing a statutory duty imposed on him by the processes of Part I of the TDA. Having to perform this statutory duty cannot constitute an abuse of judicial process or offend the twin pillars of justice i.e. nemo judex causa sua and audi alterem partem.”
“The further argument of the defendant that the referral instrument does not and cannot qualify as an initiating application and that the claimants in the instant case have not filed an initiating application, once again assumes that the claimants came to court of their own volition, and not compelled to do so by the referral instrument. The defendant misunderstands the workings of the referring system under the TDA. Once this Court is in receipt of the referral instrument, parties are invited where the Court determines who of the parties can appropriately be the claimant/appellant and who would be the defendant/respondent depending on whether the referral is a direct referral to this Court or a referral based on an objection to an IAP award. Once this is determined, then directions are made by the Court as to the processes to be filed, whether an affidavit of facts together with accompanying exhibits (in the case of direct referral to this Court) with parties having the option of calling witnesses or not, or a compilation of the IAP processes together with the accompanying written address (in the case of a referral against an IAP award). In all of this, the claimant cannot be expected to file an initiating application as the defendant seems to argue.”
B. MINISTER MAKING REFERRAL TO THIS COURT DOES NOT MAKE HIM A PARTY TO THE SUIT
“These fallacies have led the the defendant to conclude that the party making the referral is a party to the dispute upon which the referral was made. The Minister of Labour made the referral. How is he a party to the dispute? He acted based on his statutory duty, which, save for judicial review, cannot be taken away from him. It is this wrong assumption that the Minister of Labour is a party to the FGN-ASUU dispute, or is same with the 1st claimant, and a misconception/ misapplication of the role of the Minister under the TDA, that influence the line of arguments of the defendant and is majorly responsible for filing the preliminary objection in the first place.”
“So when the defendant argued that (a) the procedure stipulated under Order 3 Rule 1(1)(f) of the NICN Rules 2017 is not open to the claimants in the instant suit and this defect renders the said initiating application and every other process built upon it incompetent and liable to be struck out, and (b) in paragraph 3.18 of its written address that “the instant trade dispute which is directly between the Claimant and the Defendant is not one that the claimant herein can competently refer”, the defendant got it all wrong. The claimants could not have used Order 3 Rule 1(1)(f). The claimants did not issue the referral instrument, and hence refer this matter to this Court. The Minister of Labour and Employment did. The claimants had no choice in the 38 of 43 matter and so could not have chosen the procedure stipulated by Order 3 Rule 1(1)(f) as the defendant seems to think. The claimants are as much bound as the defendant. None between the claimants and the defendant had a choice in the matter.”
“Is the dispute between ASUU and the Federal Government, a dispute between ASUU and the Minister of Labour? I do not think so. That the Minister of Labour is statutorily involved as far as the processes of Part I of the TDA are concerned, does not thereby make him a party to the dispute.”
C. MINISTER HAS DISCRETIONARY POWER TO USE REFERRAL TO THE NICN
“I acknowledge that there is a bit of inelegance in the drafting of section 17 of the TDA especially in its reference to both sections 6 and 8(5) of the TDA. This inelegance in drafting may have affected the defendant’s understanding of, and hence argument as to, the processes of Part I of the TDA. Section 6 deals with having to report the outcome of mediation where the mediator was appointed by the parties themselves pursuant to section 4(2) of the TDA. Section 8(5) of the TDA on its part deals with having to report the outcome of conciliation by the conciliator appointed pursuant to section 8(1) for purposes of section 7 of the TDA. By section 7 of the TDA, the Minister of Labour, if not satisfied that the requirements of sections 4 and 6 have been substantially complied with, is permitted to issue a notice (with a time frame) to the parties as to the steps he intends to take. Where the dispute remains unsettled, and the Minister is satisfied that either party is, for its part, refusing to take those steps or any of them, he may proceed to exercise such powers under section 8, 9, 17 or 33 of the TDA as may appear to him appropriate. The Minister has a choice here of proceeding under any of these listed sections once he is satisfied that a party is refusing to take the steps indicated by the Minister in the notice. So where a party refuses to participate in the conciliation, the Minister can, without more, utilize the option of referral available under section 17 of the TDA. In the instant case, the Minister chose to act under section 17 of the TDA.”
“Additionally, while section 6 referred to in section 17 of the TDA relates to the first part, i.e. section 17(a) of the TDA, section 8(5) referred to in section 17 relates to the second part i.e. section 17(b). The point is that section 17(a) is independent of section 17(b). So, where “in the circumstances of the case reference of the dispute to an arbitration tribunal would not be appropriate, then, within seven days of the receipt by him of a report under section 8(5) of this Act, the Minister shall refer the dispute directly to the National Industrial Court” – section 17(b) of the TDA. The operation of this provision is not tied to the issue of essential service, which is what section 17(a) is about. The point is that where essential service is not in issue, the Minister under section 17(b) of the TDA has a wide choice/discretion (“in the circumstances of the case”) if he thinks it inappropriate to refer the matter to the IAP, to make a direct reference to this Court. And this is what the Minister of Labour did in the instant case.”
“So, whether it is in virtue of section 7(2)(b), or section 17(b), of the TDA, the Minister appropriately referred this matter to this Court. I so rule. This being so, the referral is competent and this Court has the jurisdiction to hear and determine it. I so rule. Ruling is entered accordingly. I make no order as to cost.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
⦿ DEFINITION OF A MINISTER
In Stitch v. AG, Federation & ors  LPELR-3119(SC), a case cited by the defendant but which proper citation the defendant did not give, His Lordship Aniagolu, JSC in the leading judgment defined a Minister as: “…a public officer charged by the Legislature of this country with the duty of discharging a public discretion affecting the citizens. He must discharge that function judiciously”.
➥ REFERENCED (OTHERS)