NIGERIAN GOVERNMENT SHOULDN’T CHASE SHADOWS; UNIVERSITY LECTURERES, ASUU DIDN’T COMMIT CONTEMPT OF COURT — FALANA

NIGERIAN GOVERNMENT SHOULDN’T CHASE SHADOWS; UNIVERSITY LECTURERES, ASUU DIDN’T COMMIT CONTEMPT OF COURT — FALANA

October 4, 2022 0 By Fasholu Gabriel Oluwatobi

Chris Ngige, Minister of Labour and Employment on Sunday accused the leadership of the union of misinforming and misleading its members and warned of consequences of contempt of court.

Renowned human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, has said the refusal of the Academic Staff Union of Universities to call off its industrial action isn’t a contempt of court as being speculated by the Nigerian government.

Activities in public universities have been grounded for seven months due to an ongoing strike by the lecturers.

A judge, Polycarp Hamman, of the National Industrial Court of Nigeria (NICN) sitting in Abuja on Wednesday, September 21, 2022 granted an interlocutory injunction application by the Nigerian government to restrain ASUU from continuing with the strike pending its determination of the substantive suit.

While ASUU challenged the order at the Appellate Court, Chris Ngige, Minister of Labour and Employment on Sunday accused the leadership of the union of misinforming and misleading its members and warned of consequences of contempt of court order, noting that “the Federal Government strongly frowns at this.”

Reacting in a statement on Monday, Falana said it was legal to continue with the strike because ASUU filed a motion for stay of execution alongside its appeal of the NICN order.

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The lawyer urged the Nigerian government to take advantage of the intervention of the leadership of the House of Representatives to resolve all outstanding issues and end the strike as soon as possible.

He said, “The Minister of Labour and Productivity, Dr. Chris Ngige has accused the Academic Staff Union of Universities (ASUU) of disobeying the order of the National Industrial Court by not directing its members to resume work in the nation’s public universities. The Minister also accused ASUU of misleading the public by saying that it has filed an appeal against the interlocutory order of the National Industrial Court. We wish to point out to the Minister that ASUU is a law abiding organisation whose activities are conducted within the ambit of the rule of law.

“Notwithstanding the fact that the Minister rushed to the National Industrial Court without referring the trade dispute between ASUU and the Federal Government to the Industrial Arbitration Panel and thereby abused the process of the Court. The Minister is unaware that the National Industrial Court lacks the jurisdictional competence to intervene in the resolution of a trade dispute that has not been determined by the Industrial Arbitration Panel. However, contrary to the claim of the Minister that the ASUU has not filed an appeal, the application for the leave of the Court of Appeal to appeal against the interlocutory order of injunction is deemed to be an appeal under the Rules of the Court of Appeal.

“The application is equally accompanied by a motion for stay of execution of the said order. To that extent, the members of the ASUU cannot be accused of engaging in contempt of the order of the National Industrial Court in so far as they are seeking to appeal and stay the execution of the said order. In the case of Mobil Oil Nig. Limited v Assan (1995) 8 NWLR (PT 412) 129 at 150 the Supreme Court held inter alia:

“Chief FRA Williams, SAN referred the court to the cases of Huang & Ors. v. Bello & Ors. supra and Rastico Nigeria Ltd. v. Societe Generale Surveillance SA supra. These are Court of Appeal decisions and were in my view rightly decided. What the court below was saying in both cases was that where a person is appealing against a matter in which he had suffered a defeat and asked for a stay of execution pending the determination of the appeal, he would not be liable in contempt merely because he had not obeyed the order which he is appealing against or which he wants stayed pending the appeal.

“Trial and appellate courts have always had jurisdiction to grant stay of execution of judgment pending appeal. The exercise of the right to apply for a stay of execution by an unsuccessful litigant pending his appeal has not been treated as a disobedience to the judgment he is appealing against.”

“Hence, upon a detailed review of the state of the law and the relevant judicial authorities on stay of execution of interlocutory and final judgments and orders pending the determination of appeals filed against them the respected Are Afe Babalola SAN pointed out that in exceptional cases there can be lawful disobedience of an injunctive order. For the avoidance of doubt, the learned Chief had this to say:

“However, there are exceptions to the rule that any person against whom an order is made must obey it. In Odogwu v. Odogwu (1992) 2 NWLR (PT 225) P 539 at 554 the Supreme Court held that the common law rule precluding persons in disobedience of the order of court against them from being heard in respect of the matters which they stand in disobedience permits of an exception where the order disobeyed was made without jurisdiction or where the party in disobedience is challenging the validity of the order.

“Where a party who has suffered a defeat following a trial in any cause or matter is appealing and he asks the court for a stay he will not be held in contempt merely because he has not obeyed the order which he is appealing against or which he wants stayed or suspended pending the appeal.” (See Afe Babalola: Injunctions and Enforcement of Orders, Intec Printers Limited, 2007 Page 60-61)

“On January 2, 2020, the Attorney-General of the Federation & Minister of Justice, Mr. Abubakar Malami SAN justified the refusal of the Federal Government to release Col. Sambo Dasuki (rtd) and Mr. Omoyele Sowore despite valid and subsisting court orders made by not less than four courts for their release. According to the Chief Law Officer of the Federation:

“if a decision is made, or a judgment is passed, you have an option: one, absolute and unconditional compliance; two, challenge the order by way of either an appeal against it; or asking that the order be reviewed or appealing and applying for stay of execution, he said.

“So, in respect of those orders we are not comfortable with as a government, we go back to the court and have them challenged. Until that matter, that your right of challenge, is determined up to the supreme court level, the idea of you being charged with disobedience of court order does not arise” (See Malami: We were right to detain Sowore, Dasuki despite court orders, The Cable, January 2, 2020)

“Having exercised their constitutional right of appeal and prayed the Court of Appeal to stay the execution of the interlocutory order of the National Industrial Court pending the determination of the appeal the members of ASUU cannot be said to have engaged in any form of contempt. However, instead of chasing the shadow by threatening the ASUU with contempt of court and proscription the Federal Government should adopt urgent measures to end the strike that has paralysed academic activities in public universities for the past seven months. In particular, the Federal Government should take advantage of the intervention of the leadership of the House of Representatives to resolve all outstanding issues and end the strike as soon as possible.”

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