By Professor Abiola Sanni, SAN
Sometime in October 2009, the Federal Government of Nigeria (FGN) entered into an agreement with the Academic Staff Union of Universities (ASUU) on conditions of service for university lecturers; funding of public universities, University autonomy and academic freedom, inter alia. ASUU commenced its ongoing strike on 14 February 2022 after all its efforts to make the Federal Government of Nigeria (FGN) implement the Agreement had proved abortive. By a letter dated 8 September 2022, the Minister of Labour and Employment forwarded to the National Industrial Court (NIC) “a Referral instrument” seeking the determination of certain questions in furtherance of section 17 of the Trade Disputes Act, Cap T8 Laws of Federation 2004 (TDA). Justice Polycarp Hamman on 21 September 2022 granted an injunction, pronto, mandating ASUU to call off its strike. The questions that readily come to mind are: why did it take the FGN so long to leverage on section 17 of the TDA and whether the injunction secured by the FGN against ASUU is the much-anticipated silver bullet?
I argue that the NIC cannot assume jurisdiction over the dispute pursuant to section 17 of the TDA on the basis that the conditions precedent under sections 4 and 6 of the TDA were not met. Furthermore, His Lordship, Justice Polycarp Hamman erred when he refused or failed to first hear ASUU’s Preliminary Objection (PO) challenging its jurisdiction but rather chose to entertain the FGN’s application for injunction. Furthermore, ASUU cannot be said to have acted in contempt of the court having timely appealed two days after and filed an application for injunction pending appeal against the enforcement of the order of injunction.
The TDA established a framework for the prevention and settlement of trade disputes. In view of the possible drastic effect that lockouts and strikes may have on the economy and the welfare of the people in general, time is prescribed in a mathematical manner for resolution of a trade dispute before it results into a lockout or strike. Not only that, TDA established an alternative dispute resolution (ADR) for trade disputes through a mediation or conciliation or the Industrial Arbitration Panel (IAP) rather than though the regular court. NIC being a regular (albeit specialised), court, has limited jurisdiction under TDA to entertain industrial disputes.
The first principle under TDA is that the employer and employees unions have the prerogative to mutually agree on a preferred dispute resolution mechanism consistent with freedom of parties in a commercial contract to choose to resolve their disputes before private adjudicators vested with the power to deliver binding and enforceable awards. Where such an agreement exists, parties may leverage it under section 4(1) of the TDA. The expectation is that parties may easily resolve their dispute before it festers in the spirit of give and take, if they act in good faith. It is doubtful if employers and employees do normally take advantage of this ‘golden’ opportunity. In the future, I recommend that FGN/ASUU should explore having a high-powered dispute resolution Committee/body comprising the representatives of all the key stakeholders in the education sector to intervene at this first opportunity with a view to nipping a strike at the bud stage.
Where the first attempt fails or where there is no such agreement, the parties are expected to within 7 days of the dispute arising mutually agree and appoint a Mediator who shall preside over the amicable resolution of the dispute. In the case of FGN/ASUU, it may be really be difficult for parties to agree on a mediator that is mutually acceptable to both parties which reinforces my recommendation of a body comprising the representatives of key stakeholders rather than a one-person Mediator. This notwithstanding, the mediation stage is mandatory. Section 5(1) of the TDA empowers the Minister to direct the parties on steps to be taken within a prescribed timeframe to mediate where the Minister is of the opinion that the requirement has not been substantially complied with. A Mediator has the obligation to act within seven days of his appointment and submit a report. Where the Mediator fails to resolve the dispute, it becomes the Minister’s call to trigger the next step.
The Minister has the power to act independent of parties where he apprehends (perceives) the breaking of a trade dispute. In such a circumstance, the Minster may, in writing, inform the parties of his apprehension and take one of the following three steps:
(i) appoint a Conciliator under section 8 of the TDA; or
(ii) refer the dispute to the Industrial Arbitration Panel under section 9 of the TDA or
(iii)refer the dispute to a Board of Inquiry under section 33 of the TDA
Thus, the above three mechanism above are the general mode of resolving trade disputes under the TDA. It suffices to say that they are pre-emptive procedures to avert a strike or lockout. Whichever option the Minister chooses, he must do it within a prescribed time frame before a strike occurs.
No qualification is prescribed for a Conciliator under section 8(1) of the TDA, other than being “a fit person to act as a Conciliator”. The duty of a Conciliator is to preside over the process of negotiation with the parties and endeavor to achieve a settlement within 7 days. In that case, the Conciliator shall report to the Minister and forward to him a memorandum of the terms of the settlement signed by the representative of the parties. The terms as recorded in the executed memorandum shall be binding on the parties from the date of execution.
The dispute can be referred to the IAP only after the conciliation has failed. The Minister is under obligation to refer the dispute to IAP within fourteen days of the receipt of the mediation report under section 6 of the TDA. The IAP is a body comprising of a minimum of 12 persons appointed by the Minister with a Chairman or Vice Chairman presiding. The IAP does not hear and determine a case as a single panel of 12 members. Rather, the Chairman upon receipt of the reference is expected to determine which of the following three options is most suitable for the resolution of the case:
(i) A panel comprising of a sole arbitrator or
(ii) A single arbitrator assisted by an assessor or
(iii) A panel comprising of an equal number of arbitrators nominated by or on behalf of the workers and employers concerned which is presided over by the chairman or vice-chairman.
Where the employer or workers fail to make a nomination for the purposes of constituting a panel in accordance with section 9(5) of the TDA, the Chairman may appoint from the appropriate panel such persons as he thinks fit. Where the panel comprises of more than a sole arbitrator, the award shall be made by a simple majority.
Section 17 of the TDA, which is the focus of this piece, vests the Minister with power to refer a trade dispute to the NIC in certain special circumstances. Section 17 of the TDA is hereby reproduced for ease of reference:
17. If in the case of any trade dispute of which he has received a report under section 6 of this Act it appears to the Minister- (a) that the dispute is one to which workers employed in any essential service are a party; or (b) that 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.
A calm review of this provision will reveal at least two important legal imperatives. First, the Minister must have received the report of a Mediator which will contain, inter alia, the points on which the parties disagreed and describe the steps already taken by the parties to reach a settlement. If the provisions had been followed, all the misinformation in the media on the progress and good faith or lack of it by the parties to FGN/ASUU dispute would have been avoided or better managed. The second requirement builds on the Mediation Report. It must have appeared to the Minister (from the Mediation Report) that reference of the dispute to IAP is not appropriate. In view of the time prescribed for the mediation proceedings, it is crystal clear that the Minister ought to have referred the dispute to NIC before the strike started and definitely not when the strike was in its 7th month. In the absence of a mediator’s report under section 4 of the TDA, which is a pre- condition for the reference to NIC, it is submitted that the Minister cannot be said to have lawfully invoked its power under section 17 of the TDA. It is trite in law that one cannot put something on nothing and expect it to stand.
I now proceed to briefly examine the proceedings that culminated in the grant of injunction against ASUU. Upon the receipt of the FGN’s reference, ASUU had, rightly, raised a Preliminary Objection (PO) challenging the jurisdiction of the NIC to hear and determine the matter. Since the PO went to the jurisdiction of the court, the well settled principle of law is that it should have been heard and determined to avoid a situation whereby the court will labour in vain. For in the absence of jurisdiction, a trial no matter how well conducted will be a nullity.
In contravention of this well-known and age-long principle of law, His Lordship, Honourable Justice Polycarp Hamman chose to entertain and grant the FGN’s application for injunction. Since the trial judge was not mindful of taking the PO, the next best thing should have been to grant ASUU’s application for accelerated hearing of the case and consider the application for injunction, PO and the substantive suit together. Such an even-handed approach would not have prejudiced either party to the suit till the determination of the case.
Those who are familiar with the history of ASUU’s struggle should know that ASUU is not an organisation that will be easily cowed or tamed by an injunction obtained in the circumstances of this case in contravention of due process. It is not surprising that ASUU within two days of being slammed with the injunction had filed a Notice of Appeal containing 12 grounds and simultaneously filed an application for injunction pending appeal. In these circumstances, it is submitted that ASUU cannot be said to be in contempt of court for exercising its constitutional right of appeal.
It suffices to say that a trade dispute is not such that the extant labour policy and law envisage will be ‘fought’ within the context of an adversarial proceeding and traverse the normal appeal system up to the Supreme Court. The FGN appears to have glossed over this important point when it belatedly leveraged the provisions of section 17 of the TDA which was meant to prevent the strike from occurring in the first instance rather than bringing it to an end. By so doing, FGN may have unwittingly stoked the fire of FGN/ASUU trade dispute. It should become clearer in a no distant future that FGN/ASUU trade dispute has deeper undercurrents than what an injunction procured in the circumstances of this case could satisfactory addressed. It would appear that the FGN’s approach to the management of the ASUU’s strike did not initially contemplate resolution within the matrix of the TDA. Ever before the strike started, the Minister could have exercised his power under section 5(1) of the TDA to direct the parties on steps to be taken within a prescribed time frame to satisfy the requirement of sections 4 and 6 of the TDA and eventually section 17 of the TDA. It is arguable that FGN’s decision to approach the NIC was an afterthought without the benefit of the expected rigorous analysis for a sustainable outcome. It is my expectation that both parties will sooner than later
‘amicably’ resolve the dispute in a manner that will reset the university system in Nigeria
for sustainable development.
Sanni is a professor of Commercial Law University of Lagos. Available for feed back at email@example.com, 08033958020