Effect of Section 18(1) of the Trade Disputes Act on Ongoing Employee Strike

In the National Industrial Court of Nigeria

In the Abuja Judicial Division

Holden at Abuja

On Wednesday, 21st day of September, 2022

Before His Lordship

Honourable Justice P.I. Hamman

Suit No: NICN/ABJ/270/2022

Between

1. Federal Government of Nigeria 2. Minister of Education Claimant/Applicants

And

Academic Staff Union of Universities (ASUU)                       Defendant/Respondent

Facts

Following the strike action embarked upon by the Defendant/Respondent (Respondent) from on 14th February, 2022, and the inability of parties to resolve the issues amicably, the Minister, Federal Ministry of Labour and Employment, acting further to the powers conferred on him by Section 17 of the Trade Disputes Act, Cap T8, Laws of the Federation of Nigeria (LFN), forwarded to the National Industrial Court for its determination, a Referral Instrument in respect of the Trade Dispute between the parties. The Claimant/Applicants (Applicants) sought several reliefs thereby, and requested for an accelerated hearing/determination of the case.

Subsequent to the above, the Applicants filed a Motion on Notice for Interlocutory Injunction, brought pursuant to Section 69(a) and (b) and Section 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. By the said application, the Applicants sought an Interlocutory Injunction restraining the Respondent and their agents, privies and agents from continuing with the indefinite strike action pending the determination of the suit/referral to the court.

Issues for Determination 

Preliminary Issue:

Whether Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20 of the Claimants/Applicants’ Affidavit are not incompetent, an,  as such, ought to be struck out.

Issue Adopted by the Court for Determination of the Appeal

Whether the Applicants have met the requirements for the grant of an Interlocutory Injunction in their favour.

Arguments

Arguing the Preliminary Issue, counsel submitted for the Respondent that some paragraphs in the Affidavit in support of the application are bad for offending the provisions of the Evidence Act, as they contain legal arguments, opinion, conclusion, and they are also hearsay as the deponent did not introduce himself as a member of the Respondent or someone who participated in the meetings of the FGN/ASUU Joint Negotiation Committee, or even as a member of the university community. He urged the court to strike out the offending paragraphs of the Affidavit, on the authority of BAMAIYI v STATE & ORS. (2001) LPELR-731(SC). Counsel for the Applicants argued conversely that it is paragraphs 3 to 8 of the Respondent’s Counter-Affidavit, which offend Section 115 of the Evidence Act. Counsel invoked the provisions of Section 12(2)(b) of the National Industrial Court Act 2006, to urge the court to depart from the provisions of the Evidence Act.

Regarding the issue in the main application, counsel for the Applicants referred the court to the decision of the Apex Court in AKINPELU v ADEGBORE & 3 ORS. (2008) 4-5 SC (Pt. II) 96-98, where the court highlighted the factors to be considered in an application for interlocutory injunction to include: (i) The Applicant must show that there is a serious issue to be tried; (ii) The balance of convenience must be on the side of the Applicant; (iii) The Applicant must show that damages cannot be an adequate compensation for his injury/damage if his action succeeds; (iv)  The Applicant’s conduct must not be reprehensible; (v) The Applicant must give an undertaking as to damages, save in some recognised exceptions. Submitting on the factors listed above, counsel posited that the Applicants have raised serious issues to be determined by the court in line with Section 17 of the Trade Dispute Act, which provides for Referral to the National Industrial Court by the relevant Minister. Counsel argued that the legal rights of both Nigerians and Non-Nigerians in the public universities to receive education, which they paid for, is being threatened by the Respondent, and that the strike action has caused damages to the dormant infrastructure in the public universities, as well as intellectualism and deprivation against innocent persons who are not parties to the suit. He submitted further that the balance of convenience is in their favour, as the entire nation will lose tremendous academic and life advancement programmes that cannot be regained, and damages will not be adequate to compensate the Applicants and innocent citizens for the irreparable injuries, should the Respondent continue with the strike action. He argued with respect to the Applicants’ main suit that by the Referral to the court for adjudication, any strike action by the Respondent, thereafter, is illegal by the provisions of Section 18(1) of the Trade Disputes Act.

Counsel for the Respondent countered the submissions of the Applicants above. Regarding the submission on existence of a legal right, counsel argued that the serial breach by the Applicants of negotiated and binding Collective Agreements led to the industrial action, which is the subject of the suit. And that the right to industrial action is statutory as provided in Section 30(6)(9) of the Trade Union (Amendment) Act, 2005 and Article 8 of the International Covenant on Economic, Social and Cultural Rights and Convention No. 87 on Freedom of Association and Protection of the Right to Association. He argued that the Applicants did not show any educational right which has been breached by the Respondent, in line with Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Regarding the submission on substantial issue to be tried, counsel submitted that the reliefs in the application are the same issues to be decided in the substantive suit, which cannot be determined at an interlocutory stage of the proceedings. Counsel also challenged the procedure adopted by the Minister in “directing” the court to issue an order for members of the Respondent to resume work. On the requirement of balance of convenience, counsel submitted that the Respondent is not the only union/body in the university community, and that they lack the capacity to shut down the university system, as posited by the Applicants. Further, the industrial action could have been avoided if the Applicants had honoured their obligations under the various Collective Agreements of parties. Regarding the requirement of irreparable damage or injury, counsel argued that it is the Respondent who is the victim here, and the action of its members has not caused damage to the Applicants. Arguing further on the conduct of parties, it was submitted for the Respondent that there is an undue delay in the action of the Applicants, which was filed about seven months since the commencement of the industrial action. Counsel posited that Section 18 of the Trade Disputes Act is inapplicable to the suit. That the court does not restrain a completed act, and the strike action which commenced since 14th February, 2022 is not one ordinarily open to injunction. By way of adumbration, counsel argued further that once Referral is filed before the court, parties are not allowed to go outside the Referral. That since the reliefs in the interlocutory application is the same as relief “F” in the Referral (the substantive suit), same cannot be granted at an interlocutory stage. Counsel argued further that with respect to item “F” of the Referral, it is only individuals who have direct access to the court; where unions and employers are involved, they must go through the Industrial Arbitration Panel (IAP), in line with Part I of the Trade Disputes Act, which the Minister failed to comply with – UZO v DANGOTE CEMENT PLC (2013) 31 NNLR (Pt. 82) 229. 

Court’s Ruling and Rationale

Deciding the preliminary issue, the court held that the stated paragraphs of the Affidavit in support of the application did not offend Section 115 of the Evidence Act as contended by the Respondent. Also, relying on Sections 37 and 38 of the Evidence Act, the court found that the deponent, who is the Legal Adviser and a very senior officer of the Federal Ministry of Labour and Employment, is a member of the management of the Ministry, by virtue of which position he is expected to have access to and keep custody of legal documents in the ministry; thus, the information in the Affidavit could not have been hearsay. More so, by Section 12(2)(b) of the National Industrial Court Act 2006 and Order 5 Rule 6(b) of the National Industrial Court Rules 2017, the court is allowed to depart from the provisions of the Evidence Act in the interest of justice, fairness, equity and fair-play – MR VICTOR ADEGBOYU v UNITED BANK FOR AFRICA (UNREPORTED) APPEAL NO. CA/IL/20/2021.

Regarding the submission on the competence of the Referral by the Minister, which issue was also argued in the Preliminary Objection of counsel, the court held that it will be premature to delve into arguments in this regard at the stage of hearing application for interlocutory injunction.

On the lone issue arising from the application, the court rehashed the trite position of law, 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 which may occur before the determination of the case. Thus, the onus is on the Applicant to satisfy the court by way of Affidavit evidence, that he is entitled to the injunctive reliefs being sought from the court. Restating the conditions which must be met by an Applicant as in this instance, the court went on to consider the depositions in the Affidavits and the exhibits in respect of the application.  On the requirement of serious question to be tried, it was held that by paragraphs 5 to 8 and 13 of the supporting Affidavit, the Counter Affidavit and Exhibits ASUU 1 and ASUU 7 annexed to the Counter-Affidavit, there are indeed, serious issues to be tried in the suit, which issues also relate to the legal rights of the Applicants.

With respect to the requirement of balance of convenience, His Lordship held that this tilts in favour of the Applicants who are owners of public universities, where the members of the Respondent have been on strike for over a period of seven months. Further, considering the larger interests of the public, particularly the innocent students whose parents cannot afford to send them to private universities within the country or send them outside the country for their studies, whose time is being wasted where age is a major factor (including employment), the court held that this requirement tilts in favour of the Applicant. Likewise, on the requirement of adequacy of damages and undertaking as to damages, the court found that from the circumstances of the case, the amount of damages caused to the education sector in the nation and students in public universities as a result of the strike action is irreparable, and compensation cannot adequately address the loss. By the way, the Applicants also filed an Affidavit of undertaking as to damages.

Regarding the conduct of parties, contrary to the submissions of counsel for the Respondent that the Applicant delayed in filing the action and that the urgency relied on is self-induced, the court found that going by the evidence before it, parties have been negotiating in line with the requirements of the Trade Dispute Act till 1st September, 2022 and the Referral to the court was made on 8th September, 2022 while this application was filed on 12th September, 2022. It follows that the Applicants’ action is not reprehensible, as there was no undue delay on their part.

Further, the court quoted the provisions of Section 18 of the Trade Dispute Act, which prohibits a worker from taking part in strike in connection to a trade dispute, where the dispute has subsequently been referred to the National Industrial Court under Section 14(1) or 17 of the Act. Construing the word “shall” used in the referenced provision, the court held that Section 18(1)(e) of the Trade Disputes Act connotes a mandatory obligation or duty on the part of employers and employees not to declare or partake in any strike when a dispute has been referred to the court, and where such lock-out or strike is ongoing at the time of the Referral, it shall cease or abate pending the determination of the suit. Further, the court held that the submission of the Respondent that the strike action sought to be restrained is a completed act is of no moment, as the strike action embarked upon by the Respondent on 14th February 2022, has not ended.

On the strength of Section 254C(1)(c) of the 1999 Constitution (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, the court resolved the issue in favour of the Applicants. An Order of Interlocutory Injunction restraining the Respondent and their agents or privies from taking further steps in doing any act or otherwise continuing with the indefinite strike or any strike action pending the hearing and determination of the Referral to the court, was thereby made.

Application Granted.

Representation

J.U.K. Igwe, SAN with Senator Ita Enang, Chukwulo Moedu, A.O. Egalese (Principal State Counsel, Federal Ministry of Labour and Employment), Mathias Agboni, Imo Bassey, Obi-Nwabuine Valentine, T.D. Agbe (Principal State Counsel, Federal Ministry of Justice), Suleiman Jibril (Senior State Counsel, Federal Ministry of Justice) and M. Edozie for the Claimants/Applicants.

Femi Falana, SAN with Prof Joash Amupitan, SAN; Prof Alphonsus Alubo, SAN; Prof. Patrick Uche; Dr. Edor Edor; Femi Adedeji and Abubakar Marshal for the Defendant/Respondent.

Atinuke Adejuyigbe for the parties seeking to be joined.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)