19th September, 2022
By Glory Abuh-Adejoh
The National Industrial Court will on Wednesday deliver a ruling on an application filed by the Federal Government seeking the order of the court to direct the Academic Staff Union of Universities (ASUU) to call off its ongoing strike.
Justice Polycarp Hamman adjourned the matter after listening to the arguments of the counsel on behalf of the parties.
Mr J.U.K Igwe, SAN, counsel to FG in his submission informed the court that the application for the injunction was dated Sept. 12 and filed on the same date.
He added that the application was brought in pursuant to the rules of the NICN 2017 proceeding.
Igwe further stated that it was predicated on 11 grounds, supported by 21 paragraph affidavit deposed to Mr Okechukwu Wampa, a Legal Adviser in the Ministry of Labour and Employment, attached with three exhibits and an undertaking as to damages deposed to by Wampa.
He also urged the court to grant the prayer sought and proceeded to adopt in its entirety and totality the written address, adding that the claimants had met all the requirements to enable the court to grant the injunction.
He cited that claimant’s action was not apprehensive and regarding damages, he said the lost time of seven months of the strike could not be regained.
He concluded by saying that going by the provision of section 18 (1) (e) of the Trade Disputes Act 2004, a worker should not embark on strike when a matter is already before the court and urged the court to grant the injunction.
Mr Femi Falana SAN, counsel to the defendant, however, stated that he had before the court a nine-paragraph counter-affidavit filed on Sept. 16 deposed to by the president of ASUU
He further submitted that attached to the affidavit were eight exhibits accompanied by a written address and proceeded to adopt the same as their argument in opposition to the interlocutory injunction.
Falana in addition argued that the minister lacked the power to order the court in the referral to direct ASUU to call off its strike.
He averred further that once a referral was before a court, no party could go outside of it.
Falana in his argument also pointed out that the claimants did not follow due process in part 1 of TDA 2004 which stipulated that only an individual has the right to approach the court as a trade union will first need to go to the Industrial Arbitration Panel ( IAP), before coming to the court.
He said the union can only approach the NICN to appeal the decision of IAP
Falana also said that the letter that accompanied the referral had the name of the Attorney-General as a party in the suit, but that however, the application filed before the court was without the name.
He also said that the referral asking for an accelerated hearing was not necessary as there was no urgency in the matter as the strike had lasted for seven months.
He also submitted that the balance of convenience was not on the side of the claimants and that the conduct of the claimants in the prayer for the court to interpret the 2009 Agreement should be discountenanced.
He finally urged the court to dismiss the application or direct parties to the IAP.
Igwe in response submitted that the minister did not order the court and that the letter attached to the referral was not a legal document as the notice of referral superseded the letter.
Earlier the court had ruled in favour of the claimants when Falana argued that the defendant’s preliminary objection on the jurisdiction of the court should be taken before any other application.
However, Igwe had argued that the court in its decision on Sept.16 slated Monday for a hearing.
Igwe in addition stated that the defendant’s objection will not be prejudiced as it can be adopted and taken with the substantive at a later date.
He also argued that the preliminary objection was not ripe for hearing as it was just served on him about 14 minutes before the proceeding of the day.
The court had upheld Igwe’s argument and directed counsel to proceed with the interlocutory injunction application and the counter-affidavit to same.