- NUT Explains Origin of 13-Yr Court Battle
A clearer account has emerged of Supreme Court’s decision of Friday, 15th January, 2021 in which the apex court nullified on technical grounds a decision of the Court of Appeal granting an Abuja Federal High Court the jurisdiction to entertain a 2008 suit brought before it by the Nigeria Union of Teachers (NUT) against the registration of a trade union to be known as Academic Staff Union of Secondary Schools of Nigeria (ASUSS).
Following the judgment, some media (not National Record) erroneously reported that the Supreme Court had restricted NUT’s control or jurisdiction to pre-primary and primary schools in the country while awarding jurisdiction over secondary schools to ASUSS. This interpretation has led to a wrong conclusion in some labour circles that NUT’s membership by implication has drastically shrunk and restricted to pre-secondary schools.
The fact, however, as contained in the apex court’s verdict obtained by National Record, indicate that the five-person panel of Supreme Court Justices only nullified on technical ground the earlier decision of the Appeal Court and asked the President of Court of Appeal to constitute a fresh panel to re-entertain the interlocutory appeal brought before it by ASUSS challenging the Federal High Court to hear a matter which was filed before it by the NUT in 2008.
The five-person panel of Supreme Court Justices, which included Olabode Rhodes-Vivour, Kudirat Motonmori Olatokunbo Kekere-Ekun, Chima Centus Nweze, Amina Adamu Augie and Uwani Musa Abba Aji; unanimously agreed that the matter should be sent back to the Court of Appeal and assigned to a fresh panel of justices to re-hear the matter as the panel that heard the case was different from the panel that delivered the judgment.
On the substantive matter of jurisdiction, the justices felt that since the appeal on technical ground was granted, there was no need to consider it.
The justices, among other things state that “Under the doctrine of stare decisis, we are bound by these decisions [judicial precedents]. It follows therefore, that in the instant case, where His Lordship E. Ekanem, JCA, who did not participate in the hearing of the appeal, rendered a judgment thereon, the lower court, in so far as the panel that delivered the judgment was different from the panel that heard the appeal, was incompetent. The appeal is therefore allowed. The judgment delivered on 9/6/2014 is a nullity and must be and is hereby set aside. Appeal N. CA/A/256/09 shall be remitted to the Court of Appeal, Abuja Division, to he heard by a different panel of that court.
“I also agree that the resolution of issue 1 is conclusive of the appeal. There is no need to consider issue 2. The parties shall bear their respective costs in the appeal.”
When the issue of jurisdiction now arose, the Federal High Court said it has jurisdiction; but the ASUSS lawyer said no and appealed against it. They went to Court of Appeal. The Court of Appeal heard the matter and said the Federal High Court has jurisdiction. They still said no and went upstairs to the Supreme Court, where among other things they argued that one of the Justices of the Court of Appeal who signed the judgment didn’t hear the matter. The Supreme Court said yes, since a justice who didn’t hear the matter signed, it is erroneous and for that reason, we throw back this matter to the Court of Appeal for the President of the Court of Appeal to reassign the matter to another Panel of Justices to re-hear it. That is where we are.
NUT Sheds Light on Litigation
When contacted for the union’s reaction to the judgment, Comrade (Dr) Mike Ike Ene, NUT’s Secretary General, told National Record in a telephone conversation that the matter started 13 years ago in 2008, which he said was before his appointment as Secretary General of NUT.
While referring this reporter to the Head of the Legal Department of NUT for the details of the litigation, the NUT Scribe however state. that the notion that ASUSS had won the court battle was wrong and that the news going round that it had been registered is mere speculation.
“What you will add and say that the Secretary General told you is that I know that ASUSS is not registered…
“We have a group called All Nigerian Confederation of Principals of Secondary Schools, popularly called ANCOPSS. We have another group called Association of Primary School Head Teachers of Nigeria (AOPSHON), In our structure in NUT, we give them positions up to the National Executive Council, where they have their representatives; they are just merely pressure groups; they are not seeking to be rivals of NUT.
“NUT was formed in 1931 with the responsibility of organising teachers in secondary and primary schools. If you go to our constitution, organising primary and secondary schools teachers is clearly stated there. In fact, the people that started NUT were secondary school teachers. The first president of NUT came from secondary school; first secretary general of NUT also came from secondary school. As I am talking to you, I came from secondary school background.
“So it is just mischief like what happens in this country where people are looking for power by all means,” said the NUT Secretary General.
He said the litigation was encouraged by a former Minister of Labour who had strong ties with some members of ASUSS and had assured them that it would be registered as a trade union.
He said the NUT had challenged the minister that he had neither the right nor the power to register unions and that the statutory role rests with the Registrar of Trade Unions. He said it is in the context of this that the NUT went to the Federal High Court in 2008 in the absence of the National Industrial Court, which then had constitutionally no exclusive jurisdiction over trade union matters.
For the Head of NUT’s Legal Department, Comrade (Barrister) Okoroafor Okechukwu, the matter is simple as ASUSS which metamorphosed from Conference of Secondary School Tutors of Nigeria (COSST) had originally approached the Corporate Affairs Commission and sort for registration.
Comrade Okechukwu alleged that while COSST may be a legal entity as it is registered at the CAC, ASUSS is not a legal entity and therefore unknown before extant laws governing the operation of trade unions – the Trade Unions Act and Labour Act.
“Before the Trade Union Act, COSST, which later on baptised itself to ASUSS, is a pseudonym; ASUSS is not a legal entity but COSST. Of course they will also say COSST is also known as ASUSS, so ASUSS is not an entity before the law; it is not a legal entity,” says Comrade Okechukwu.
He said the Consolidation Decree, now Trade Unions Act, which in 1978 merged several house unions into industrial unions in the country, has an appendix a jurisdictional scope for trade unions.
In the response with reference No: ML.ITU/128/I/200, dated 5th October 2007, entitled “Re- Application for registration As A Trade Union,” Mr Fagbemi stated: “I refer to your letter dated 13th August 2005, on the above subject and to inform you that your Association is not registrable as a trade union in view of Sections 5(4) and 3(2) of the Trade Unions Act CAP 437 of 1990 which says: – 5(5.4) “The registrar shall not register the union if it appears to him that any existing trade union is sufficiently representative of the interests of the class of persons whose interest the union is intended to represent. 5(3.2) “No combination of workers or employers shall be registered as a trade union save with the approval of the Minister…but no trade union shall be registered to represent workers or employees in a place where there already exists a trade union.”
“What does the jurisdictional scope of trade unions say? It allotted to every trade union its area of jurisdiction from where it has to draw its membership and in the list, NUT is listed as item number 26. The Trade Union Act says that NUT is empowered to unionise teachers in all educational institutions apart from the tertiary. It quoted copiously to say that apart from polytechnics, colleges of education, universities and allied institutions; which our scope of jurisdiction does not reach, but pre-primary, secondary, technical, teachers training colleges and so on, as it were, are under the jurisdiction of the NUT.
“So the jurisdictional scope of trade unions says that NUT has to unionise teachers at this level of the education industry. Then if you look at the list of trade unions, you cannot find any known as either COSST or ASUSS meaning that they are not trade unions,” Comrade Okechukwu argued.
On the origin of the union, Okechukwu stated that the NUT was founded by Ransome Kuti, who was a secondary school teacher. “He was a secondary school teacher, Reverend Ransome Kuti and he headed Ijebu High School, not Ijebu Primary School,” Comrade Okechukwu said, adding: “Then, Dr Alvan Ikoku was also a one time President of NUT, and he was a secondary school teacher. Dr Ikoku, as you know, has his image in the ten naira note; he was a secondary school principal. The first Secretary General was T. K. Cameron, and he was equally of the secondary school. So from the origin in 1931, NUT was a secondary school-originated union and has been up to this day; that is going the history lane.”
According to Comrade Okechukwu, “the provisions of the Trade Unions Act, section 3 subsection 2, states that in an industry where the interest of the workers is sufficiently represented; no other trade union can be registered there.
“For instance, you can’t go to local government now where all local government employees are already unionised by the Nigeria Union of Local Government Employees to register another trade union. You can’t go to register another union to unionise medical and health workers because the law has already protected or taken care of the interest of those workers by giving them a union which is the Medical and Health Workers Union of Nigeria. You cannot go to register another union now to unionise drivers where there is a National Union of Road Transport Workers; it is not limited to drivers; conductors and all other persons that work in the road transport industry; they are unionised. But National Association of Road Transport Owners (NARTO) is a union of employers not employees.
“So in the wisdom of the legislators, they have taken care of all these and there is an act of the National Assembly to that effect. Those provisions of the Act which says that you cannot unionise, you cannot go to register another union where the workers at that level of the industry are already unionised, that law is extant, that law is potent and that law is in force and has not been amended by the National Assembly.”
Comrade Okechukwu further argued that since the jurisdictional scope of trade unions has also not been amended to say that NUT no longer has jurisdiction over a range of teachers in primary and secondary schools; ASUSS will remain “unregistrable.”
“The Registrar of Trade Unions had repeatedly issued letters to say that ASUSS is not registrable; COSST is not registrable. He is not just saying that out of ignorance, whims and caprices; he is saying it because of the provisions of the Trade Union Act,” Comrade Okechukwu said.
While corroborating the claim by the NUT Secretary General that a former Minister of Labour had wanted to force the registration of ASUSS, Comrade Okechukwu said: “When ASUSS applied for registration, the Minister directed them to go and be registered. They wrote to the Registrar of Trade Unions and he saw the impediment in the provisions of the Act that they cannot be registered because the interest of the workers at that section of the education industry had already been taken care of by the NUT. How can somebody begin to cry wolf that a union which was established by secondary school teachers and you now turn around to say that it is for primary school teachers?”
Okechukwu stated that the NUT resolved to take the matter to court when it became obvious that the forces behind ASUSS or COSST was bent on registering it as a trade union in the same jurisdiction as NUT.
“When the wrongful act was about being committed, NUT, as a law-abiding entity went to the Federal High Court seeking an order to restrain the minister from breaching the provisions of the Trade Unions Act.
“When NUT approached the Federal High Court asking for a restraining order, ASUSS questioned the jurisdiction of the Federal High Court to hear the matter or to issue such an order. Their contemplation was that it was a trade union matter and therefore should go to the National Industrial Court. But it’s not so. In the first place, when a party to a suit is the federal government or any of its agencies, the right court for you to seek redress is the Federal High Court because the federal government is a party to the suit; the Hon. Minister of Labour and Employment and the Federal Ministry of Labour are parties to the suit, so the rightful place to sue them was the Federal High Court.
“When the issue of jurisdiction now arose, the Federal High Court said it has jurisdiction; but the ASUSS lawyer said no and appealed against it. They went to Court of Appeal. The Court of Appeal heard the matter and said the Federal High Court has jurisdiction. They still said no and went upstairs to the Supreme Court, where among other things they argued that one of the Justices of the Court of Appeal who signed the judgment didn’t hear the matter. The Supreme Court said yes, since a justice who didn’t hear the matter signed, it is erroneous and for that reason, we throw back this matter to the Court of Appeal for the President of the Court of Appeal to reassign the matter to another Panel of Justices to re-hear it. That is where we are.”
He said that since 2008 when the case was filed, the main suit has not been heard. “What we have been battling over is jurisdiction – does the Federal High Court has the jurisdiction to hear our restraining order which we sought for? That is just the whole thing. So if ASUSS says they have won; as a lawyer, I can only ask; can they win a case that has not been tried?”
What is more, the interest of the class of persons which your Association, “Academic Staff Union of Secondary Schools of Nigeria” intends to represent is adequately covered by the Nigeria Union of Teachers. This office will not encourage factionalisation of unions, but would readily assist to resolve differences that are likely to cause break up.
What the then Registrar of Trade Unions said
Before the court battle commenced in 2008, the then Registrar of Trade Unions, Mr I. A. Fagbemi, had written a letter responding to ASUSS’ application for registration as a trade union.
In the response with reference No: ML.ITU/128/I/200, dated 5th October 2007, entitled “Re- Application for registration As A Trade Union,” Mr Fagbemi stated: “I refer to your letter dated 13th August 2005, on the above subject and to inform you that your Association is not registrable as a trade union in view of Sections 5(4) and 3(2) of the Trade Unions Act CAP 437 of 1990 which says: – 5(5.4) “The registrar shall not register the union if it appears to him that any existing trade union is sufficiently representative of the interests of the class of persons whose interest the union is intended to represent.”
“5(3.2) “No combination of workers or employers shall be registered as a trade union save with the approval of the Minister…but no trade union shall be registered to represent workers or employees in a place where there already exists a trade union.”
“It is pertinent to point out that the Trade Union (Amendment) Act of 2005 does not confer automatic registration as a trade union as is being erroneously interpreted, rather it only recognizes the right of membership of an individual to belong to an association as guaranteed by clause 40 of the Nigerian Constitution of 1999.
“It is necessary to further stress that the Trade Unions Amendment Act, of 2005 has not abrogated nor amended the requirements for registration of trade unions as stipulated in Section 3, 4 and 5 of the principal Act. Neither was Section 2(1) which prohibits unregistered trade unions from functioning had been repealed revoked nor amended by the Trade Unions Amendment Act of 2005.
“What is more, the interest of the class of persons which your Association, “Academic Staff Union of Secondary Schools of Nigeria” intends to represent is adequately covered by the Nigeria Union of Teachers. This office will not encourage factionalisation of unions, but would readily assist to resolve differences that are likely to cause break up.”
The Court of Appeal, National Record findings reveal, has neither constituted the panel of justices that will re-hear the appeal, neither has it fixed a new date for commencement of the appeal hearing as directed by the apex court penultimate Friday.