ASUU STILL IN SHOCK!!!

As Nigerians prepared for this year’s valentine celebration, the Academic Staff Union of Universities announced that it was commencing its warning strike over the failure of the Federal Government to fulfil the contractual obligations it entered with the Union some months earlier.

To be sincere, most Nigerians including myself are not pretty sure what the details of the agreement in question entails, but it certainly includes demands on salaries/allowance, improved funding for the universities and a change in the payment platform. As a true Nigerian, this is not new. Every time, almost in every academic session, the Union and the Government always have issues that leads to this strike.

However, this particular strike has taken a turn that has left the Union, and in fact, most Nigerians in shock. The Federal Government legitimately sued the Union. This is quite strange, because this is usually not the case. On the contrary, it is always the other way around. Most often than not, it is the Government that is dragged to court by either individuals, unions etc, for one reason or the other. In fact, I believe this must have come as a shocker to the Union.

As at when this article was being written, the internet, media and streets of Nigeria have been engaged with arguments and counter arguments. The topic for discussion is the first outcome of the law suit. The National Industrial Court of Nigeria (NICN), the court established solely for the purpose of settling disputes between employers and employees delivered its ruling per Honourable Justice P.I. Hamman, on the 21^st day of September, 2022. The Ruling was clear and straightforward, the Union was ordered to suspend its indefinite strike or any strike action pending the determination of this main suit.

WHAT IS THE PROBLEM?

The problem is that the members of the Union are very bitter about the ruling and do not want to believe that they have been ordered by the Court to suspend the strike action, which is the only tool they believe they have against the Federal Government.

First and foremost, let me start by saying this, that the ruling of the Court is not the final judgment of the Court. The procedure most likely went like this:

The FG sues ASUU praying the court for certain reliefs, but before the Court could hear the matter and give its final judgment (which would probably be in like four or five months’ time), the FG quickly brought what we lawyers call “An Application for Interlocutory Injunction”. What this means is that, the FG brought a separate Application pleading with the court to ask ASUU to suspend its strike until whenever the court gives its final judgment. If at the end of the case, the Judgment is in ASUU’s favour, the Union can then proceed to do whatever it pleases.

The FG came under section 18(1)( e) of the Trade Dispute Act 2004 which states that an employer (FG) shall not declare or take part in a lock and a worker(ASUU)  shall not take part in a strike in connection to any trade dispute where the dispute has subsequently been referred to the National Industrial Court. The Federal Government running to the NICN on the 8^th of September, 2022 was definitely a well calculated move.

Apart from the Trade Dispute Act that the FG relied on in seeking this order from the Court, the FG had to prove some requirements before the order could be granted in their favour. One of such requirements is called the balance of convenience. I would love to speak a little on this, because I believe that this was what the FG used in swaying the mind of the Court in its favour. The Balance of Convenience simply means, if the order is not granted, which of the parties (as in this case, the FG or ASUU) would most likely suffer untold damage. That is, who actually stands to lose more.

In this case, it is obvious that the FG pushed out the plight of the Nigerian students and impressed it on the Court. The FG can be said to have acted as a mother begging for her children (in this case, the Nigerian students). From the ruling which I read, they were able to inform the court that the average Nigerian Student in these public universities would suffer great loss if the order is not granted. The court obviously took this factor into consideration, because the court held:

“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 fact in virtually everything including employment…………… section 2(2) of the NYSC Act for example prohibits any person who is over the age of thirty (30) from being enlisted into the Service Corps. Many students 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………. 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 26/2022 is to be between the ages of 20 and 30 years and 25-40 years of age for medical consultants”

The above was one of the reasons the Court granted the order. If you ask me, the FG played the emotional blackmail card. No Judge in his/her right senses would knowing full well that the time of students who have no control over this issue are being wasted, in a country where age matters a great deal, and not be tempted to grant the order.

However, like I said, this is not the main Judgement. The main suit/case has not even started yet.

WHAT THEN SHOULD ASUU DO?

The truth is that members of ASUU are obviously angry right now, and I understand why. They obviously believe that they have been bullied by the government. However, I would not say that the FG bullied them, at least not yet, rather, I would say that the FG played a fast one on them.

The number one option for ASUU is to appeal against the Ruling. When an Appeal is entered at the Court of Appeal, the trial court (in this case, the NICN) will cease to handle the matter until the Justices of the Court of Appeal are done with it. This means that ASUU can carry on with the strike, while awaiting the decision of the Justices of the Court of Appeal. The question I have is, would this solve this issue? I had earlier said that no reasonable judge will see the argument of FG as it concerns the plight of the students affected and not want to move in the direction the trial judge did. What is the assurance that the Court of Appeal Justices would not order same? ASUU also has to consider the fact that this ruling is not the main Judgment. Meaning, that after they are done with the Court of Appeal, if the decision is in their favour, they would have to come back to the NICN for the conclusion of the main matter. More time is wasting. The worst-case scenario, if the Justices of the Court of Appeal, say that the trial judge is right, and likewise orders ASUU to resume school pending the conclusion of the main matter, what then? They probably would appeal to the Supreme Court. More time wasting.

The second option which is most likely not going to be adhered to by ASUU, is for ASUU to suspend the strike and pursue the main suit with all it has. I know, it seems like the government won. It is just that it is my belief (and I might be wrong) that it would be difficult for the Court of Appeal Justices to turn a blind eye to the injustice done to the students, unless, ASUU would give a fair argument that, its actions are likewise beneficial to the general academic well-being of the students.

Another issue is the issue of the FG using security forces to bully the Union. That is where the real bullying would start. The law is quite clear, once a court gives an order, it is binding on all parties. Any party that disobeys the order would be held in contempt of court. Trust me, contempt of court is not good at all. It means the person could be arrested and locked up in cell for such disobedience.  I foresee the FG using security force in this area, although, the FG would also need a court order to do this. The question here is, what Court would not grant such order when ASUU would probably be in contempt of court? Can the entire Union members be arrested? Definitely not, but there is a saying that goes, strike the shepherd and the sheep would what?