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NATIONAL ASSOCIATION OF ACADEMIC TECHNOLOGISTS -VS- THE VICE CHANCELLOR, FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE and ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE A.A. ADEWEMIMO 

DATED: 16TH OCTOBER, 2019 SUIT NO: NICN/AK/03/2019

BETWEEN

NATIONAL ASSOCIATION OF ACADEMIC

TECHNOLOGISTS                           ���.      CLAIMANT

AND

1. THE VICE CHANCELLOR, FEDERAL UNIVERSITY

OF TECHNOLOGY, AKURE.

2. SENIOR STAFF ASSOCIATION OF NIGERIAN                   

UNIVERSITIES.                                                                          DEFENDANTS

3. NON-ACADEMIC STAFF UNION OF EDUCATIONAL

ANDASSOCIATED INSTITUTIONS.

 

REPRESENTATION:-

IYIOLA AFOLABI FOR THE CLAIMANT.

UYIOGHOSA EGBONFOR THE 1ST DEFENDANT.

OLABANJO AYENAKIN FOR THE 2ND AND 3RDDEFENDANTS.

 

JUDGMENT

The Claimant instituted this action by way of Originating Summons filedbefore this Court on the 23rd January, 2019 praying for the determination of the following questions:

  1. Whether by virtue of Clauses 3.1 and 3.2 of the Agreement dated November 5, 2009 between The Federal Government of Nigeria and the National Association of Academic Technologists (NAAT), EXHIBIT A, members of the National Association of Academic Technologists (NAAT), Federal University of Technology, Akure are entitled to five (5) categories of Earned allowances, namely Laboratory Student/Technologist Staff ratio supplementation; Students Work Experience Programme (SWEP), Field Trip Allowance and Responsibility Allowance.

 

  1. Whether by virtue of Clauses 3.0 [C(ii), (v), (ii), (viii)] of the Agreement dated November 5, 2009 between The Federal Government of Nigeria and the Senior Staff Association of Nigerian Universities (SSANU), Exhibit B, ALL THE MEMBERS of the 3rd Defendant are entitled to Earned Allowances thereunder.

 

  1. Whether by virtue of Clauses 3.5 (ii), (vi), (ix) of the Agreement dated November 5, 2009 between The Federal Government of Nigeria and the Non-Academic Staff Union of Educational and Associated Institutions (NASU), Exhibit C, ALL THE MEMBERS of the 3rd Defendant are entitled to Earned Allowances thereunder.

 

  1. Whether the decision of the 1st Defendant to withhold part of the earned allowances payable members of the claimant is not manifestly illegal, unconstitutional and an abuse of office.

The claimant therefore seeks the following reliefs:

  1. An Order compelling the 1stDefendant to pay the outstanding allowances due to members of Claimant for the three (3) categories of Earned Allowance namely:   Laboratory Student/Technologist Staff ratio supplementation, Students Work Experience Programme (SWEP), Responsibility Allowance which were excluded and unpaid when the 1st tranche of Earned Allowance was released by the Federal Government in 2013.

 

  1. An Order compelling the 1stDefendant to pay the outstanding 53% of the Earned Allowances due to members of the Claimant when the 2nd tranche of Earned Allowances was the release by the Federal Government in 2017.

 

  1. An Order of perpetual injunction restraining the 1stDefendant, his privies, agents, staff or subordinates from further breaching the terms of the Agreement dated November 5, 2009 between The Federal Government of Nigeria and the National Association of Academic Technologist (NAAT), the Claimant.

 

  1. An Order of perpetual injunction restraining the 1stDefendant, his privies, agents, staff or subordinates from misappropriating money meant for payment of allowances due to the members of the Claimant to pay non-entitled members of the 2nd and 3rd Defendants.

The claimant filed along with the Originating Summons and accompanying processes, i.e. affidavit and documentsattached.

It is the case of the Claimant that it is a Registered Trade Union under the laws of the Federal Republic of Nigeria with a major branch in Federal University of Technology, Akure.The claimant stated that there are four recognised staff union in the University namely, the Academic Staff Union of Universities (ASUU), the National Association of Academic Technologists (NAAT), Senior Staff Association of the Universities (SSANU) and Non-Academic Staff Union of Educational Associated Institutions (NASU), that an agreement was signed by the Federal Government on the 5th November 2009 with some of the Unions, NAAT agreement (Exhibit A), SSANU Agreement (Exhibit B), NASU Agreement (Exhibit C). That by Clause 3.1 and 3.2 of Exhibit A, members of the claimant areentitled to earned allowancesrestricted to their cadre and by Clause 3.0 [C (ii), (v), (ii) and (viii)] of Exhibits B and clause 3.5 (ii),(vi) and (ix) of Exhibit C, the 2ndand 3rdDefendants are respectively also entitled to categories of restricted allowance.  That on the 17th October 2013, in expectation of payment of the Earned allowance, the Vice Chancellor sent a memo with attachments in respect of the Guidelines on Implementation of Earned Allowance to the Chairman of NAAT seeking for a meeting and in December 2013, the Federal Government released funds to the 1st defendant for the payment of allowances due to the Unions inclusive of the Earned Allowance. However, in the disbursement by the management of the University, there was flagrant disregard to the Provisions of Exhibits A, B and Cin that members of the Claimant were only paid two allowances, Field Trip and Hazard Allowances leaving out other categories, and the 1st defendant even caused members of 2nd and 3rd defendants who are not entitled to certain allowances to be paid across board regardless of the provisions of their respective agreement with the Federal Government.

The claimant protested severally to the 1st defendant and all these did not yield any positive action on the part of the 1st defendant and the outstanding sum remainedunpaid.

The claimant averred that sometimes in the year 2017, the Federal Government released further funds to the University for the payment of the allowance, and the University again failed to adhere to Exhibits A, B and Cand only released 47% of the amount due leaving out 53% and the outstanding sum from 2013. The claimant stated that they wrote the 1st defendant on the anomalies in the disbursement ofthe 1st and 2nd tranches of Earned Allowances (Exhibit S)and that the 1st defendant has contravenedthe terms of the Agreement in Exhibits A, B and C, the claimant concluded that it is in the interest of justice to grant the prayers in the originating summons.

The originating summons proceedings initiated by the claimant in this suit was followed by an application for interim injunction dated 23rd of January, 2019 wherein the claimant sought for an interim injunction to restrain the 1st defendant from disbursing the 3rd tranche of funds received from the Federal Government of Nigeria earmarked for the payment of earned allowances of the claimant to the 2nd and 3rd defendants, this was moved and granted by the court on the 28th of January, 2019, thereafter the motion on notice for interlocutory injunction was set down for hearing, the motion for Interlocutory Injunction was later withdrawn by claimant�s counsel on the 3rd of April, 2019, on  the ground that it has been overtaken by event and was accordingly struck out by the court. The case was later set down for hearing and parties exchanged their processes after regularising the varied processes.

The parties in this suit filed their processes and addresses in line with the rules of court. The 1st defendant filed a Notice of preliminary objection contesting the jurisdiction of the court, and the court ordered that it should be taken with the originating summons. In the course of trial before the application was heard, the court raised an issue of Jurisdiction based on the trade disputes Act and parties were asked to file theirwritten addresses on the issue raised suomotu by the court. The court on the 20th of June, 2019, by agreement of counsel set down the objection and the originating summons for hearing on the 15th of July, 2019, when parties eventually moved and adopted their addresses, consequent upon which the matter was adjourned for Judgment.

In the Claimant�s final written address on the Originating summons,four (4) issues were formulated for the determination of the Court whichare:

  1. Whether by virtue of Clauses 3.1 and 3.2 of the Agreement dated November 5, 2009 between The Federal Government of Nigeria and the National Association of Academic Technologists (NAAT), EXHIBIT A, members of the National Association of Academic Technologists (NAAT), Federal University of Technology, Akure are entitled to five (5) categories of Earned allowances, namely Laboratory Student/Technologist Staff ratio supplementation; Students Work Experience Programme (SWEP), Field Trip Allowance and Responsibility Allowance.

 

  1. Whether by virtue of Clauses 3.0 (C, [ii], [v], [vii], [viii]) of the Agreement dated November 5, 2009 between The Federal Government of Nigeria and the Senior Staff Association of Nigerian Universities (SSANU), Exhibit B, ALL THE MEMBERS of the 3rd Defendant are entitled to Earned Allowances thereunder.

 

  1. Whether by virtue of Clauses 3.5 (ii), (vi), (ix) of the Agreement dated November 5, 2009 between The Federal Government of Nigeria and the Non-Academic Staff Union of Educational and Associated Institutions (NASU), Exhibit C, ALL THE MEMBERS of the 3rd Defendant are entitled to Earned Allowances thereunder.

 

  1. Whether the decision of the 1st Defendant to withhold part of the earned allowances payable members of the claimant is not manifestly illegal, unconstitutionaland an abuse of office.

On issue one, Counsel submitted that Exhibit A was duly executed by the Federal Government and the Claimant and the document guides the relationship between both parties, that Clauses 3.1 and 3.2 of Exhibit A provides for categories of earned allowances to be paid to members of the claimant. He continued that the basic principle of law is that parties are bound by their agreement and that Courts of law are expected to respect the sanctity of an agreement voluntarily entered into by parties, he cited the case of Prince Oil Limited v. Guaranty Trust Bank Plc [2016] ALL FWLR (Pt.841) 1450 t 1459, Isheno V. Julius Berger [Nig]Plc [2008] All FWLR (Pt415) 1632, ChizorObidigwe V. kay Kay Constructions Limited [2016] All FWLR (Pt.815) 261 at 295. He then submitted that by Clauses 3.1 and 3.2 the Claimants are entitled to Earned Allowances namely LaboratoryStudent/Technologists Staff ration supplementations; Students Work Experience Programme (SWEP), Field Trip Allowance, Occupational Hazard Allowance and Responsibility Allowance.

On issue two and three jointly, Counsel submitted that for good industrial relations, where collective agreement have been agreed on, individual branches if allowed to opt out and avoid the decision democratically arrived at nationally will cause chaos and if there must be any variation of a written agreement, it shall be reduced in writing. He continued that in the instant case, the terms of agreement between the Federal Government and the 2nd and 3rd defendants are expressly stated, and since the terms have not been varied in any way, any act done outside the express terms will constitute an illegality. Counsel cited the decision of the Supreme Court in BFI Group Corporation V. Bureau of Public Enterprises [2013] All FWLR (Pt, 676) 444 at 466 and 469 and noted further that a careful look at Clause 3C of Exhibit B and Clause 3.5 of Exhibit C clearly shows each category of Earned Allowance, and those entitled to it either by mentioning the grade level or by stating the activity/duty to be performed by such member of the union. Counsel continued that the clear and literal interpretation of Clause 3.5 of Exhibit C is that onlythose member of staff who engage in the activities/duties mentioned in this Clause are entitled to the Allowance provided therein. Therefore each payment across board to all members of the 3rd defendant whether or not they are entitled to such allowance is against the terms of agreement signed by the Federal government and the Collective Agreement A, B & C, did not contemplate that all members will be paid without considering their duties and grade level to determine eligibility of such Allowance, he cited the case of Best (Nig.) Ltd v. Blackwood Hodge (Nig) Ltd [2011] All FWLR (Pt.573) 1955.

It is the submission   of counsel on issue four that Chapter 3 of Exhibit A clearly states the Condition of Service of the Claimant, that Clause 3.1 and 3.2 expressly states that earned allowance of the claimant is to be divided into five (5) categories  but the 1st defendant failed to pay three categories of the Earned Allowance to members of the claimantof which they were entitled to during the disbursement of the 1st tranche of Earned Allowance released by the Federal Government, and in the case of the 2nd tranche paid just 47% of the money leaving 53% unpaid to them thereby disregarding the binding agreement. He continued that it is clear from Exhibit O that the University admitted not paying all the categories of the Earned Allowance due to the Claimant and that this act of the 1st defendant is illegal, unconstitutional and an abuse of power.

The 1stdefendant�s Memorandum of conditional appearance was filedon the 31st January 2019 andlater, a Notice of Preliminary Objection was also filed on the 21st March 2019 on the following grounds:

  1. The claimant�s suit is non-justiciable.
  2. The suit discloses no reasonable cause of action against the defendants
  3. The claimant�s action is statute barred having been filed outside the mandatory statutory period of three (3) months of the occurrence of the cause of action as envisaged in Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004 i.e. the cause of action in 2013 and 2017 as stated in reliefs 1 and 2 of the Originating Summons dated 23rd day of January, 2019.
  4. There is no privity of contract between the Claimant, 2nd and 3rd Defendants in this suit.
  5. The suit is hostile proceedings wrongly commenced by Originating summons filed by the claimant.
  6. Proper parties are not before this honourable court.

In support of the application is a 4 paragraph affidavit deposed to by ArunaMajeed, Male, a litigation clerk in the law firm of IghodaloImadegbelo (SAN) and a written address wherein the counsel formulated a sole issue for determination to wit:

�Whether or not this Honourable Court has jurisdiction to entertain this suit�

On grounds one and two of the objection, 1st defence counsel submitted that  in determining the issue of jurisdiction, the Court must consider the entire claim of the claimant and the aggregate facts which   the law recognises  as giving the claimant a substantive right, he cited the case of Chevron (Nig.) Ltd  V.  L.D. (Ltd) (2002) 16 NWLR (Part 1059) Page 168 at Pages 176 � 177. He notedthat it is the claim as endorsed on the originating summons that determines the jurisdiction of Court and once the issue of jurisdiction is raised, the court must carefully peruse the claim of the claimant in order to determine the issue of jurisdiction. It is therefore incumbent upon the court to refer to the subject matter of the claim as pleaded by the claimant.He referred to the term �Collective Agreement� as defined by Section 48(1) of the Trade Dispute Act, Cap. T8, Laws of the Federation of Nigeria, 2004 and submitted that in the instant casethere is no evidence before the Court that the collective agreements contained in Exhibits A, B and C attached to the Originating summons have been incorporated into the contracts of employment of members of the respective Unions. To that extent, the collective agreements are not justiciable but remains at best a gentlemen�s agreement binding in honour only and their enforcement must depend on industrial and political pressure.  He posited that the bundle of aggregate facts or the factual situation upon which the claimant relies to support its claim is not recognized by law as giving rise to a substantive right capable of being claimed or enforced against the 1st defendant.  Counsel placed reliance on paragraphs 3(v) and (vi) of the Affidavit in support of the Motion and urged the court to hold that the suit is not justiciable and discloses no cause of action.

On ground three, Counsel submitted that the 1st defendant is a public officer within the meaning of Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of Federation of Nigeria, 2004 hence the Claimant�s reliefs 1,2,3 and 4 are statute barred having been instituted three(3) months after the cause of action arose contrary to the Act. He placed reliance on the cases of Comptroller �General, Prison V. Idehen [2010] 3 NWLR (Part1182) Page 503, Victor V. FUTA [2015] 4 NWLR (Part 1448) Page 1 at Pages 52-53. He added that in the instant case, members of the claimant were purportedly excluded in the payment of three categories of earned allowances and the 1st defendant also failed to pay the outstanding 53% of the allowances due to the claimant�s members since 2017 when the 2nd tranche was released by the Federal Government, he submitted that the effect of limitation statute is that it removes from a party his right of action, enforcement and judicial relief, leaving him with a bare and empty cause of action.  He cited the cases of Ugba  V. Suswam (2013) 4 NWLR (Part 1345) Page 427 At Page 473; CAN V.  INEC (2013) 13 NWLR (Part 1370) Page 161 At Page 184 And Ibraham  V. Judicial Service Commission, Kaduna State (1998) 14 NWLR (Part 584)  Page 1.  He submitted that reliefs 1 and 2 of the claimant are caught by the statute of limitation for being instituted three months after the cause of action arose in 2013 and as for relief 2, the cause of action arose in 2017 and the action was filed on the 23rd day of January, 2019 outside the mandatory three months provided for in Section 2(a) of the Public Officers Protection Act. He added thatsince Reliefs 1 and 2 are the principal reliefs in this suit, reliefs 3 and 4 being injunctive reliefs are hinged on reliefs 1 and 2, and are merely ancillary, reliance was placed on the case ofTukur V. GovtOf Gongola State (1989) 4 NWLR (Part 117)Page 517 at Page 564. Learned.Counsel concluded that Claimant�s action was instituted on the 23rd January 2019, and over the prescribed period allowed by the Act and therefore statute barred.

On ground 4,Counsel submitted that based on the affidavit evidence in support of the Originating Summons, the claimant did not disclose any privity of contract between it, and the 2nd and 3rd defendants to give rise to a reasonable cause of action in this case, i.e. the determination of the questions raised by the claimant, particularly nos. 2 and 3, relating to Exhibits B and C. Counsel maintained that the claimant was not party to the Agreements as contained in Exhibits �B� and �C�, therefore, it lacks the locus standi to institute this suit for the determination of questions No. 2 and 3 in the Originating Summons. Reliance was placed on the cases of B.M Ltd V. Woerman-Line [2009] 13 NWLR (Part1157) Page 149, A.G Federation V. AIC Ltd [2000] 10 NWLR (Part 675) Page 293 at Page 31, Momoh&Anor V. JimohOlutu [1970] All NLR Page 121 at Page 127.

Counsel further argued on ground 5 that this suit was commenced by way of originating summons dated 23rd January, 2019 and upon a close consideration of the Affidavit in support of the Originating summons, the 1st defendant/Applicant discovered that the claimant has deposed to facts that are highly disputable by the 1st Defendant/Applicant in this suit. He referred the court to the counter-affidavit filed in opposition to the originating summons and contended that cases involving disputed issues of facts are hostile and not appropriate for originating summons proceedings. Reliance was placed on the cases of Olley V. Tunji[2013] 10 NWLR (Part 1362)Page 278 at Page 322, Inakoju V. Adeleke [2007] 4 NWLR (Part1025) Page 423, Osunbare V. Oyewunmi [2007] All FWLR (Part368)Page 1004.Counsel further contended that assuming without conceding that the court has jurisdiction to entertain this suit, same cannot be determined by originating summons in view of the highly contentious nature which would require calling of witnesses to resolve.  He therefore urged the court to strike out the Originating summons.

On ground 6 of the objection, he argued that proper parties are not before the Court and submitted that the claimant failed to make the Federal Government of Nigeriaan executor of the Agreements (Exhibits A, B and C) a party in this suitwhich is necessary and proper, he cited the case of Green v. Green [2001] FWLR (Part 76) Page 765 at Page 814and concluded that based on the submission above, this Court lacks jurisdiction to entertain this suit.

The 2nd and 3rd defendants thereafter adopted the submissions of the 1st defendant on the Notice of Preliminary Objection filed.

In response to the Notice of Preliminary Objection filed by the 1st defendant, the Claimant�s counsel filed a twelve paragraph Counter-affidavit and a Written Address in opposition to the objections on the 10th April, 2019. On grounds 1 and 2 of the 1st defendant�s objection, Counsel submitted that Section 254C of the 1999 Constitution as amended clearly gives this Court the right to exercise its authority to determine any question as to the interpretation and application of any collective agreement, also in addition, Section 7(1)(C)(i) of the National Industrial Court Act 2006 vests this Court with the authority to exercise jurisdiction over the determination of any question as to the interpretation of collective agreement. He cited the case of The Rector, Kwara State Polytechnic &Ors V. Mt.OlaAdefila&2Ors [2008] All FWLR (Pt.431) 914and continued that in the instance case, the management of the University has acted on the collective agreement by paying the Earned Allowance to the Claimants and the 2nd and 3rd defendants, and as such the Agreement has been impliedly incorporated into the terms and conditions of service of the unions.

On the argument that this suit discloses no reasonable cause of action,Learned counselsubmitted that an examination of the affidavit in support of the originating summons discloses various paragraphs deposing to the facts that led to the Claimant seeking redress in Court,i.e. the claimant is seeking the interpretation of these agreements, in the disbursement of the funds jointly released to the 1st defendant for the payment of Earned Allowances and the wrongful disbursement of the Claimant�s peculiar to members of the 2nd and 3rd defendants, hence the claimant has a cause of action.

The Claimant�s counsel argued further that this action is not statute barred andsubmitted that the cause of actioneven though arosein 2013 and continued till January 2019, and thus it is a continuing act by virtue of Section2a of the Public Officers Protection Act and thusnot statute barred, he cited the case of Independent National Electoral Commission(INEC) V. Chied Felix Onowakpko&3 Ors [2017] All FWLR (Pt900) 44 at 49 SC,.Counsel also submitted that the 1st defendant abused his office and went beyond his authority by misappropriating the funds meant for the payment of Earned Allowance to deserving members of the claimant and cannot therefore claim protection under the Public Officers Protection Act as he must show that he acted within the law and confines of his public duty to be entitled to the protection.

On ground 4 of the 1st defendant�s objection, the claimant argued that there is privity of contract between the claimant on one part and the 2nd and 3rd defendantson the other and this is in view of Exhibits A, B and C placed before the Court, in that the sum released to the 1st defendant for payment to the Claimant and the 2nd and 3rd defendants was based onthe collective agreements entered into by the three unions individually but paid in bulk, the claimant therefore retains sufficient interest to enable the Court to interpret the Agreements in relation to its legal rights.

On grounds 5 and 6, Counsel stated that a look at the affidavit of the claimant and the defendantsreveals no controversy in the existence of the agreements and release of funds, all the claimant is seeking is the interpretation of the agreements, in order to direct the disbursement of the funds released in fulfillment of the terms of the agreements, hence there is no dispute on the essential facts.  He surmised that the action was therefore properly commenced by Originating Summons, he cited the case of Mrs. SusuanOlapejuSinmisolaOlley V. Hon. OlukoluGaniyuTunji&2Ors [2013] All FWLR (Pt687) 625 at 670 SC.Counsel added that proper parties are before the Court as there is a cause of action or a duty to protect or enforce between the actual parties before the Court, he went further to submit that there is no allegation against the Federal Government who has played its part in honoring the Agreements and has paid the Earned Allowance which accrued to the claimant and the 2nd and 3rd defendants to the 1st defendant. The Claim in this suit is therefore solely againstthe 1st defendant who was given the responsibility of disbursing the money jointly released for the payment of the members of the three unions i.e. the claimant, 2nd and 3rd defendants, he cited the case of Diamond Bank V. Professor N.I Hollist& 4Ors [2016] All FWLR (Pt, 860) 1007 at 1029 C.A.and concluded therefrom that this suit is competent before this Court.

This Court suomotuon the 3rd of April 2019 ordered parties to address it on the issue of whether or not this court possesses the requisite jurisdiction to entertain this matter in view of Section 2A of the Trade Disputes Act.

The 1st defendant filed a written address on the 20th May 2019, on the issue of jurisdiction raised suomotu by the Court and formulated a sole issue for determination viz:

Whether in view of Section 2a of the Trade Dispute Act Cap T8 Laws of the Federation, 2004, this Honourable Court has jurisdiction to entertain this suit.

Counsel relied on Section 2 of the Trade Dispute Act and Section 48 of  the Act and submitted that for a dispute to be declared a trade dispute  within the meaning of the section, the following ingredient must be present, there must be a dispute, the dispute must involve a trade, the dispute must be between employers and worker or workers and workers and that the dispute must be connected with the employment or non-employment, the terms of employment, physical condition of work of any person, he cited the cases of AG Oyo State V. NLC [2003] 8 NWLR (Part 821) Page1 at Page 28, Apena V. N.U.P.P.P [2003] 8 NWLR (Part 822) Pag 426 at Page 447-448.Learned Counsel submitted that by virtue of Section 20(1) of the Trade Dispute Act, this Court is armed with thejurisdiction and power conferred on it by the Act or any other Act with respect to the settlement of trade disputes, the interpretation of collective agreement and matters therewith. He argued that from a careful perusal of the facts and circumstances of the case, the alleged dispute relates to the collective agreement which was not incorporated into the contract of employment of the Claimant�s members and until the collective agreement is incorporated into the terms and conditions of the contract of employment, same cannot qualify as trade dispute to ignite this Court�s jurisdiction. He cited the case of Osoh V. Unity Bank Plc [2013] 9 NWLR (Part 1358) page 1 at Page 28. He concluded that this Court lacks the jurisdiction to entertain the Claimant�s suit simply because it is not a trade dispute.

The 2nd and 3rd defendants adopted the arguments of counsel to the 1st defendant on the issues raised regarding the jurisdiction of the Court to entertain this suit in view ofSection 2a of the Trade Disputes Act Cap T8 Laws of the Federation, 2004.

The Claimant�s counsel filed his written submission on the 16th April 2019 on the issue of jurisdiction raised suomotu by the Court and formulated a sole issue for determination which is:

�Whether the Court has jurisdiction to entertain this suit by virtue of Section 2 Trade Dispute Act 1976 (As Amended).�

Counsel submitted that it is trite that the jurisdiction is the bedrock of adjudication and could be raised at any point, even on appeal and rightly so by the Court, he mentioned that Section1a of the Trade dispute Act 2006 (as amended) has been adapted as Section 2 Trade Dispute Act 2004, that the particular provision was an amendment introduced to the Trade Dispute Act and the prevailing circumstance that necessitated the introduction of that particular provision was to confer exclusive jurisdiction on the National Industrial Court on trade dispute matters. Counsel submitted further that Sections 4-9 of the Trade Dispute Act provided for the steps to be taken where a trade dispute is declared or anticipated. He queried whether this suit falls within the purview of Section 2 of the Trade Dispute Act, since the relationship of employer and employee does not exist here as the Federal Government through the UniversityCouncil is the employer of the Claimant, the 2nd and 3rd defendants, counsel noted that it cannot be the intendment of the framers of the Act that parties would have to resort to steps itemised in the Trade Dispute Act to obtain interpretation of collective agreements.  He thereafter concluded that the subject matter of this suit is the interpretation and application of collective agreements and the National Industrial Court has the requisite jurisdiction enshrined in Section 254(c)(1)(j) of the 1999 Constitution as amended to entertain same and by Section 2 of the Trade Dispute Act, Cap T8,LFN 2004 being contrary to the provisions of Section 7 of the National Industrial Court Act, 2006 and Section 254(C)(1)(j) of the Constitution of the Federal Republic of Nigeria 1999, as amended, it is otiose or even null and void and Section 2 of the Trade Dispute Act is inconsistent with the provisions of Section 6(1) &6(a& b), 36(1), 315(1) of the 1999 Constitution as amended and therefore void to the extent of its inconsistency.

In response to the Originating summons filed by the claimant, the 1st Defendant filed an Eight (8) paragraph Counter-Affidavit on the 2nd March 2019, wherein they averred that the conditions of employment of the members of the claimant, the 2nd and 3rd defendant are governed by the Federal University of Technology Act and the conditions of service governing the appointment of Junior and Senior Staff of the 1stDefendant University. They admitted that Exhibits A, B and C are collective agreements and that the Federal Government has not released the total sum of all the allowances due to the Claimant and only the sum of N668,061,680.00k (Six Hundred and Sixty Eight Million, Sixty One Thousand, Six Hundred and Eighty Naira) was released. They averred that the amount released by the Federal Government was not sufficient to cover the total amount due to all unions as per the signed Agreement, hence the management of the university selected two categories of items common to all the various Unions and payment was made across board for fair disbursement with the consent of the respective unions including the claimant in this suit, they added that only staff of the University who were on the payroll and worked between year 2009 and 2012 were paid from the sum released. They stated that the three Unions jointly submitted an estimate of Earned Allowance through the UniversityBursary to the National University Commission (NUC) for consideration of Federal Ministry of Finance and the sum of N2,500,000 (Two Million, Five Hundred Thousand Naira) was released for the payment in respect of the 2nd tranche  of Earned Allowance to respective Unionsand pro-rated on the basis of the released fund, using the template sent to the NUC for calculating and paying Earned Allowance to the respective Unions (Exhibit B). The 1st defendant averred that it was the NUC that directed that the template should be used in the disbursement of the Earned Leaveallowances which was strictly complied with. They also denied receiving any query from the Federal Government in respect of the disbursement of the 2013 earned leave. They added that the collective agreements with the various unions including the Claimant was re-negotiated with the Federal Government of Nigeria under aegis of Joint Action Committee and a Memorandum of Terms of Settlement dated 20thSeptember, 2017andexecuted, i.e. 1st Defendant�s Exhibit C and this expressly states that Earned Allowance released cut across both teaching and non-teaching staff of the University. Learned Counsel concluded that this suit is incompetent, lacking in merit, frivolous and the Court lacks jurisdiction to entertain same.

Attached to the Counter-Affidavit is a written address wherein a sole issue for determination was raised viz:

          Whether the claimant has established its claim on balance of     probability to entitle it to the relief claim.

Learned Counsel to the 1st defendant relying on Sections 131 and 132 of the Evidence Act 2011 submitted that the claimant retains the burden of proof to establish his case. He continued that the substratum of the Claimant�s case is hinged on the Collective Agreements (Exhibits A, B and C). That by Paragraph 4(xv)( I believe counsel meant 4xiv) the 1st defendant specifically stated that the collective Agreement signed, i.e. the 1st defendant�s Exhibit C cut across both teaching and non-teaching staff of the university and therefore it has clearly varied Exhibits A, B, C of the Claimant and Exhibits A, B and C cannot therefore be read in isolation without 1st defendant�s Exhibit C, reliance was placed on the case of Shell BP Petroleum Co. Dev. Ltd v. Jammal Eng. (Nig) Ltd [1974] 4 SC page 33.

The 2nd and 3rd defendants on their own partfiled a joint seven (7) paragraph counter-affidavit on 13th February 2019 to the Claimant�s originating summons, They averred that the collective agreements are not the sole conditions of employment for the members of the 2nd and 3rd defendants but their members are also governed by the terms and condition contained in the FUTA Act, they averred further that 1st defendant has the prerogative to determine how to execute the service contract or collective agreement and that nothing concerns the claimant with the categories of staff who are entitled to Earned Allowance. Moreover in line with the collective agreement applicable to the 2nd and 3rd defendants, they are also entitled to earned allowance from the 3rd tranche of earned allowance already released by the Federal Government. They averred that apart from the collective agreement, the various unions have renegotiated with the Federal Government of Nigeria under the aegis of Joint Action Committee and consequently signed a Memorandum of Terms of Settlement dated 20th September 2017 (Exhibits A and B of the 2nd and 3rd defendants), whereafter a meeting was held between the 1st defendants and the union and each of the union forwarded their Claims (Exhibit C) and the payment due was disbursed. They also averred that by the term of settlement, it was unanimously agreed that the Earned allowances should be paid to both teaching and non-teaching staff of the University and on the 29th January, the 1st defendant issued a bulletin which satisfactory explained how the 1st defendant disbursed the 3rd tranche of earned allowances (Exhibit D).

The 2nd and 3rd defendants filed a written address in opposition to the originating summons, wherein Counsel argued a preliminary objection on point of lawtherein, they arguedthat the suit is incompetent and discloses no reasonable cause of action and added that the claimant has no competence to contest the enforcement of the agreement between the 1st defendant and the 2nd and 3rd defendant, consequently, the claimant is a meddlesome interloper, hence the case should be struck out. On the Originating summons, counsel submitted that in view of the claimant�s affidavit before this Court, no reasonable cause of action is disclosed against the 2nd and 3rd defendant.

The 1st defendant filed a Reply on Point of Law to the claimant�s written address ontheir preliminary objection, on the 18thof May, 2019. Counsel submitted that there is no proof that the said collective agreements had been incorporated into the contract of employment to make same justiciable.  He further submitted that the said collective agreements (Exhibits A, B and C) have been subjected to renegotiation. He affirmed that in 2013 a purported wrong was committed which entitles the claimant to seek remedy before the court in respect of relief 1 and in respect of relief 2, the wrong giving rise to the claim for remedy before the court occurred in 2007, thus the filing of this action in 2019 is outside the mandatory period of 3 months prescribed under Section 2(a) of the Public Officers Protection Act, 2004 the claimant�s suit relating to reliefs 1 and 2 is therefore statute barred. On the argument of the claimant that the 1st defendant abused his office and went beyond his authority in the disbursement of the earned allowances, counsel argued that this is not borne out by the facts and circumstances of this case. Counsel added that the action as instituted by the claimant involves disputed facts and is therefore hostile, and same cannot appropriately be commenced by originating summons. He also argued thatjoining the Federal Government of Nigeria as a party is necessary to effectively determine the above issues and failure to so do is fatal to the case of the claimant andrenders the suit grossly incompetent. Reliance was placed on the case of A.D.C.   V.  BELLO (2017) NWLR (Part 1545) Page 112 at Part 138.

I have carefully considered the various processes filed by parties before this Court, the written submissions of counsel and documents attached in support of their respective cases, I find that the following issues will best determine this suit:

  1. Whether or not this suit is competent before this Court and thus this Court is clothed with the jurisdiction to entertain same.
  2. Whether or not the claimant has proven the question posed in the originating summons to be entitled to the reliefs sought. 

First and foremost, it is germane to consider the preliminary objection raised by the 1st defence counsel vide his application filed on the 21st January 2019and the issue raised suomotu by the court on the 3rd April 2019 as this relates to the competence of this court to adjudicate in this suit. It is settled that a Court must rule onall applications brought before it and decide on all issues between the parties for the effectual determination of a case and a jurisdictional issue of this nature must invariably be determined first. See the cases of Mr.UgochukwuDuru V. Federal Republic of Nigeria [2013] LPELR-19930 (SC),The 1st defendant filed a Notice of Preliminary Objectionon the following grounds:

  1. That this suit is not justiciable
  2. That no reasonable cause of action was disclosed in the suit
  3. That this  suit is statute barred in view of Section 2a of the Public Officers Protection Act
  4. That there is no privity of contract
  5. That the suit was commenced by the wrong originating process and therefore an hostile proceeding
  6. That the proper parties are not before the Court.

In determining the objection, it is pertinent to reiterate theposition of the law on the jurisdiction of aCourt, it is a known fact that it is a threshold matter that goes to the root of the adjudicatory process. It is the cord and the life wire which holds and guides a suit, and the pillar upon which the entire process of litigation rests. A judgment of Court therefore, however well written is a nullity if given without jurisdiction, See the cases of Olumoye&Ors V. Adelakun&Ors [2018] LPELR_-44283, ImpresitBakoloriPlc V. A.U.I.M.D Ltd [2016] 1 NWLR Part 1492, It is also in the interest and best administration of  justice that the issue of jurisdiction should be dealt with at the earliest opportunity, see the cases of Gafar V. Kwara State Government [2007] 4 NWLR (Pt 1024) Pg 375, Tukur V. Government of Gongola State [1989] 4 NWLR (Pt117) Pg 517.

On grounds one and two of the 1st defendant�s objection as to whether or not this suit is justiciable and discloses a cause of action. It is the law that for an action to be justiciable, the necessary ingredients to commence the action must be complete that is;

  1. the proper parties must be before the Court,
  2. the Court must have the competence to entertain the suit,
  3. there must be a reasonable cause of action to be determined by the Court.

It is trite that a cause of action is constituted by the aggregate of facts which the law recognizes as giving a claimant a substantive right to make a claim, it is the factual circumstances upon which the claimant rely to make his claim, which is capable of being enforced against the defendant, see the cases ofEmeka v. ChubaIkpeazu&Ors [2017] LPELR-41920 SC, A.G. Adamawa &Ors v. A.G Federation [2014] LPELR-23221 SC, usually, a reasonable cause of action is made up of the following ingredients; cause of action, a civil action or obligation fit for determination by a Court of law, a dispute in respect of which a Court of law is entitled to invoke its judicial power to determine, see the case of  Cookey v. Fombo [2005] 15 NWLR Pt.947 182, Nokia West Africa v. Mr. Williams Orioha (aka 2shotz) [2016] LPELR-40189 (CA). The claimant in Paragraphs 18 and 19 of the Affidavit in support of the Originating Summons stated that the flagrant disregard of Exhibits A, B and C by the 1st defendant in the non-payment of the balance of the earned allowancesof its members and the payment by the 1st defendant to the members of the 2nd and 3rd defendants of certain allowancesin contravention of their respective Agreement with the Federal Government is the bone of contention in this suit.  The Claimant argued that this calls for the interpretation of the collective Agreements involved by the court.There is no doubt that it ispart of the adjudicatory duty of court to interpret agreements, enactments laws e.t.c. See Order 3 Rule 3 of the National Industrial Court Civil Procedure) Rules, 2017, the claimant in this suit is therefore within its rights to seek the interpretation of the Agreements entered into by the parties as regards their legal rights in this suit. Thus, a reasonable cause of action is disclosed in this suit and it is consequent upon this that the 1st defendant�s objection on this ground is discountenanced.

On whether or not this action is statute barred, there is the need to consider the series of fact that gave rise to the Claimants� action before this Court and the law is that time begins to count from the date the cause of action arose. In order to determine the period of limitation, it is the originating process i.e. the Writ of Summons and the Statement of Claim, that must be examined, and this is done by comparing the date the cause of action arose and the date the originating process was filed, See Hassan&Ors V. Bornu State Government &Ors [2016] LPELR-40254 (CA),Akeem V University of Ibadan [2003]10 NWLR (Pt829) 584. It is undisputed from the record of this Court that this matter was instituted on the 23rdJanuary, 2019 and by Paragraph 16 of the affidavit in support of the Originating summons, the cause of action initiallyarose in December 2013. A comparism of the two dates discloses that a period about 5years and almost 1 month has lapsed before the Claimant commenced this action. However, from the primacy of facts in this suit and going by the view of the  Apex Court in Kwara State Pilgrim Welfare Board V. Baba [2018] LPELR-43912 SC, where the exceptions to Section 2a of the Public Officers Protection Act, Cap 41 LFN 2004, were espoused to include; incases of continuance of damage or injury,  where the person relying on it acted outside the colours of his office or outside his statutory or constitutional duty, cases of recovery of land and more importantly, claims for work and labour done in good faith. See the cases of MichaelObiefuna V. Alexander Okoye [1961] All NLR 257 at 360 and 362, Attorney General of Rivers State V.Attorney General of Bayelsa State &Anor [2013] 3 NWLR (Pt.1340) 123 at page 148-149.  I find that the facts in this case correlates with continuance of damages as the refusal of the 1st defendant to pay the Claimant�s earned allowance as disclosed in Exhibits E-M is a continuous damage. The claim in this case is therefore still alive, owing to the fact that the remainder of the earned allowances due to the claimant is still outstanding for work done, the action is therefore not a concluded act. The tests on continuance of damage was laid down by the Supreme Court in Attorney General of Rivers State V.Attorney General of Bayelsa State &Anor Supra wherein the Court espoused that:

 

�In cases of continuance of damages or injury, the Act permits an action to be brought on the cessation thereof outside three months. From the Amended Statement of claim and as equally deposed to in his Counter-Affidavit, the plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased the defence is not available for the 1st defendant��

 

It is consequent upon the above reasoning that I find that this action discloses continuance of damage and an exception to the Public Officer Protection Act and is therefore not statute barred. I so hold.

On the 1st defendant�s contention that there is no privity of contract between the Claimanton one part and the 2nd and 3rd Defendants on the other part, to warrant a cause of action against the 2nd and 3rd defendants, I find that it is trite that the principle of privity of contract recognizes that only a party to a contract can maintain an action thereunder, See Ebhota&Ors V. Plateau Investment and Property Development Co. Ltd [2005] LPELR-988 SC.  Aperson who is not a party to acontract therefore cannot sue on it asthe contract is only enforceable at the instance of parties to it. A third party is thus generally prevented from seeking the enforcement or otherwise of a contract to which he is not a party. See the case of the Registered Trustees of Master�s Vessel Ministries (Nig) Incorporated V. Emenike&Ors [2017] LPELR-42836 (CA).The Federal Government entered into an agreement with the Claimant, the 2nd and 3rd Defendants separately vide Exhibits A, B and C respectively,  I must say herethat the Claimant in this case merely raised issues on the interpretation of Clauses 3.1 and 3.2 of Exhibit A, they are not contending Exhibits B and C but the fact that a lump sum of money was released by the Federal Government for the payment oftheir peculiar Earned Allowances and the allowances of the two other unions i.e. the 2nd and 3rddefendant, and thiswas not disbursed properly and in accordance with the agreements entered into by the three unionsas the 1st defendant was alleged to have used the released sum to pay members of the 2nd and 3rd defendants certain allowances peculiar to members of the claimant. This issue can therefore not be resolved in the absence of the three unions, i.ethey are necessary parties to this suit and the contention of the 1st defendant on lack ofprivity of contract is untenable in the circumstance.

On ground 5 that this suit was commenced by the wrong originating process, it is the contention of the 1stdefendant in paragraph 5.0 of his submission that this suit is contentious and an originating summons proceeding is wrong considering the facts of this case. The law is long settled and without any doubt that originating summons proceeding is appropriate where the issues before the Court is principally the interpretationof theConstitution, statute/enactment, agreement or any other instrument, see Order 3 Rule 3 of the National Industrial Court Rules. In Zakari V. Muhammed&Ors [2017] LPELR-42349SC,the Supreme Court reiterated that originating summons is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleading of the parties to the suit. Thus an Originating Summons is not for contentious or hostile proceedings. See Amasike V. Reg.Gen. C.A.C [2013] 13 NWLR (Pt.1211) 137 SC.It is the principle of law that where there is a defect as to the mode of commencement of an action, it does not render the suit incompetent, it merely affects the procedural jurisdiction of the Court and can be waived, such defect can be cured by an amendment and the Court can order pleadings to be filed. See Pam V. Mohammed [2008] 16 NWLR (Pt.112) 1 @page 88, Atago V. Nwuche[ 2013] (Pt.1341) page 353 A careful perusal of the Claimant�s case discloses that the fulcrum of thecase is the interpretation of Clauses 3.1 and 3.2 of the Collective Agreement (Exhibit A) dated 5th November 2009 on the claimant�s member entitlement to earned allowances and also whether the 2nd and 3rd defendants member are equally entitled to the same earned allowance by Clause 3.5 and 3.0 respectively of their Collective Agreements (Exhibit B and C). The Claimant equally seeksome declaratory and injunctive reliefs set out in its originating summons. Evidently, the issues before the Court is clearly on interpretation of Clause 3.1, 3.5 and 3.0 of Exhibits A, B and C as well as the Claimant�s entitlement to earned leave allowance.The defendants are not contending the existence of these agreements, thus the issue is clearly narrowed down and the substance is not contentious. It is upon this premise that I find and hold that this suit was properly commenced by the claimant.

On the contention of the 1st defendant that the Federal Government of Nigeria is a necessary party in this suit, SeeMadukolu v Nkemdilim [1962] SCNLR 341, and Jadcom Ltd v Oguns Electrical [2004] 3 NWLR (Pt. 859) 153, where the position of the law is settled that the basis for joining a person, either natural or legal as a party to an action, is that he should be bound by the result of the action. A proper party is one who though not interested in the claimant�s claim are made parties for some good reasons. In other to determine whether a party is proper or not, the Court will examine the claim before the Court which gives right to the cause of action, See Oluwaniyi V. Adewumi [2007] LPELR-9034 (CA). An in-depth examination of the affidavit in support of the Originating Summons reveals that the Claimant�s case is against the action of the 1st defendant in its disbursement of funds released to the 1st defendant by the Federal Government, hence I find that the 1st defendant�s objection in thisregard is also untenable.

In all I find that the preliminary objection of the 1st defendant in this suit is lacking in merit and is hereby dismissed. I so hold.

It is also on record that this court raised an issue raised suomotu on the 3rd April 2019, and directed parties to address it on, whether or not this Court has the competence to entertain this suit in view of Section 2 of the Trade Dispute Act (CAPT8) Laws of the Federation of Nigeria, 2007.It is pertinent to state here that the Claimant, the 2nd and 3rd defendants are trade unions as envisaged under Section 1 of the Trade Union Act, Cap T14 LFN 2007. A trade union by law must be an organisation of workers or employers forming an association with the same objectives and for the common good of the Association. Section 48 of the Trade Dispute Act, Cap T8 LFN 2007 defines a dispute as �any dispute between employers and workers, between workers and workers which is connected to the employment or non-employment, or the terms of employment and physical conditions of work of any person�. In other words, it is a disagreement arising from workers or employers of Association (between or within trade unions). Section 54 of the National Industrial Court Act 2006 also further explains a trade dispute as �any dispute between employer and employees, including dispute between their respective organisation and federation which is connected with; (a) the employment or non-employment of any person, (b) term of employment and physical conditions of work of any person, (c) the conclusion or variation of a collective agreement, and an alleged dispute�

Section 254(c)(1)(a) and (b) of the 1999 Constitution as amended clothed this Court with the jurisdiction to entertain issues relating to or connected to trade unions, trade dispute or matters connected therewith, See also Section 7 of the National Industrial Court Act, 2006.

As to the question whether the grievance between the parties before this court borders on a trade dispute or not;

Section 2 of the Trade Dispute Act has this to say:

  1. Subject to the provisions of Subsection 3 of Section 21 of this Act, no person shall commence an action, the subject matter of a trade dispute or any inter or intra union dispute in a court of law and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void.

 

  1. Notwithstanding the provision of constitution of the Federal Republic of Nigeria 1999, an interim or interlocutory order, judgment or decision made by any court other than the National Industrial Court established under this Act, in respect of any trade dispute prior to the commencement of this section shall cease to have effect.

It was held in National Union of Road Transport Workers V. NwekeOgbodo&Ors [1998] 2 NWLR (Pt537) 189 at 191, that certain ingredients must be present in order to declare a trade dispute, these are:

��.For a dispute to be declared a trade dispute within the meaning of Section 27 of the Trade Dispute Act,the following ingredient must be present; (i) There must be a dispute, (ii) the dispute must involve a trade (iii) the dispute must be between employers and workers or workers and workers (iv) the dispute must be connect with (i) the employment or non-employment (ii) the term of employment (iii) Physical condition of work or any person�

See also New Nigeria Bank &Anor V. A.M Osoh&4Ors [2001] 13 NWLR (Pt.729) 232.It is worthy of note that all the ingredients stated above need not be present at the same time, as it is difficult to have all  the ingredients in every case, see the cases of A.G Oyo State V. NLC [2003] 8 NWLR (Pt.821) 16, N.U.RT.W V. Ogbodo [1998] 2 NWLR (Pt.537)189. In the instance case, it is clear that there is a dispute with regards to the non-payment of the earned allowance by the 1st defendant after the Federal Governmentreleased the funds for the allowances, the 1st defendant is contending that Exhibits A, B and C which are the Collective Agreements signed by the three Unions (the Claimant, the 2nd and 3rd defendants) individually has been renegotiated with the Federal Government under the aegis of Joint Action Committee and a Memorandum of Terms of Settlement dated 20th September 2017 i.e. 1st defendant�s Exhibit C which was executed by the three unions. This issue therefore calls on the power of court to interpret the various agreements before it.InGloberstarEngr Co Limited V. Omatseye&65 Ors [2008] LPELR-4203 CA, the Court held that a dispute as to the interpretation of a collective agreement between employers and workers is a cause of action and once workers and their employer are not in accord with respect to a collective agreement there is a valid trade dispute which can be the subject of an action before the Industrial Arbitration Panel.

However, in assuming jurisdiction in this case, Section 4 and 5 of the Trade Dispute Actprovides that  internal mechanism for the resolution of this dispute must be adhered to and exhausted by the affected parties before the commencement of this action in Court as a condition precedent to entertain this suit and that secondly, the minister of labour and productively has to apprehend the dispute by informing the parties and their representative of his apprehension in resolving the dispute, the Minister shall appoint a conciliator and where the dispute is not settled or agreement reached by parties, the Minister shall within Fourteen (14) days of the Industrial Arbitration Panel (IAP) make an award in that   respect, See Sections 6,8 and 9 of the Trade Dispute Act. Thus from the Act, it is when the dispute is not resolved by the conciliator that it goes   to the arbitration tribunal thereafter the Minister may make a referral to this Court and the Court can then assume jurisdiction, see the case of INEC  V. Association of Senior Civil Servant of Nigeria &Anor [2007] LPELR-882 (CA).It is clear that the three unions were party to the agreement reached in 1st defendant�s Exhibit C and the Minister for labour also met with parties on this issue before an amicable settlement was reached. Added to this, however by the 3rd Alteration to the Constitution of the Federal Republic of Nigeria, 1999 particularly Section 254(c)(1) (j) which confers on this court the power and the original jurisdiction to interpret awards, collective agreements etc. in respect of the subject matter upon which this court retains jurisdiction. I find that this Court is empowered to adjudicate over this suit as constituted. I so hold.

In considering which Agreement is binding on the parties to this suit, the Claimant contends that Exhibit A which is the Agreement dated 5th November 2009 between the Federal Government and the Claimant is still binding and subsisting, whereas the 1st defendant contends that claimant�s Exhibit A has been renegotiated by 1st defendant�s Exhibit C which isa collective Agreement executed by the three Unions, the  Claimant responded vide Paragraph 13 of the Further and better affidavit filed on the 10th April, 2019 that 1st defendant�s Exhibit C is still ongoing as disclosed in Paragraph 5 of the Exhibit. However, it is my reasoning that in view of the fact that the representative of the claimant i.e. the President of the NAAT, signed the terms of agreement reached in 1st defendant�s Exhibit C,the Claimant has fully acknowledged and assented to the terms therein,irrespective of Clause 5 in the said Exhibit, the fact remains that the earned allowances cut across board, and the three unions are all entitled to them.Moreso, the law is trite and settled that an agreement  between parties can only varied by a subsequent agreement, see the cases of Maculay V. Nar Merchant Bank Ltd [1990] 4 NWLR (Pt.144); Teju Investment Property Company Limited V. Subai [2016] LPELR-40087, Soulus MEF1 Ltd V. Aju [2018] LPELR-46722 CA. The subsequent agreement i.e. 1st defendant�s Exhibit C is sacrosanct, and there is need to protect the sanctity of the agreement freely entered into by contracting parties. In Wayne (W.A) Limited V. Ekwunife [1989] 3 N.S.C.C 325, NnaemekaAgu JSC held as follows:

�Now it has not been disputed that parties to a contract may effect a variation of contract by modifying or altering its terms by mutual agreement��

See also the case of Nwosu North &South Int�L&Anor V. Nigeria Int�L Trading and Industrial Corporation Ltd [2014] LPELR-23425 (CA). 

Consequent upon the execution of 1st defendant�s Exhibit C, I find that all members of the Claimant, 2nd and 3rd defendant are entitled to payment of arrears of the Earned Allowances across board and the 1st defendant is bound to comply with the terms so stated therein.I so hold.

The Claimant by its relief 1 is seeking an order compelling the payment of the outstanding allowances due, unpaid and excluded when the 1st Tranche was released to the 1st defendant by the Federal Government. It was the defence of the 1st defendant as stated in Paragraph 4(iv) of its counter-affidavit that the federal government has not released the total allowance due to the Claimant for the payment of the Earned Allowance and the said fund was used in paying the aspect of the Earned Allowance of other unions as the amount released by the Federal Government did not cover the total amount due to the Union. It is based upon this admission that I find that the 1st defendant is to pay the Outstanding Earned Allowances owed to members of the claimant from the 1stTranche upon the release of the balance by the Federal Government. I so hold.

The Claimant is also claiming the outstanding sum of 53% of the Earned Allowance due to their members when the 2nd tranche of Earned Allowance was released by the Federal Government in 2017, the 1st defendant averred in paragraph 4(x) of the Counter-Affidavit that  the three unions jointly  estimatedthe total sum due, through the University Bursary to the National University Commission and only the sum of N2,500,000 was released for the payment, the amount released was eventually pro-rated using the template sent to the NUC(Exhibit B) but the Claimant responded in his Paragraph 9 of his further and better affidavit that a sum of N378,936,950.37k was released to the 1st defendant and vide paragraph 10 asserted that the 1st defendant did not follow the template. It is trite that he who asserts must prove, there is no evidence to support the assertion of the claimant against the 1st defendant on non-compliance with the template for the disbursement of the funds by the Federal Government and the release of N378,936,950.37k, the document attached to the further and better affidavit and marked Exhibit B in support of the Claimant�s assertion, is a public document which is uncertified in contravention of Sections 102  and 104 of the Evidence Act, 2011 and  is inadmissible in law. Thus the claimant�s assertion under this relief remains unproven in this regard.

On reliefs 3 and 4 which is seeking for an order of perpetual injunction restraining the 1st Defendant, his privies and agents, from further breaching the terms in Exhibit A and from misappropriating money meant for payment of allowances due to the members of the Claimant to pay non-entitled members of the 2nd and 3rd Defendants.The Apex Court in BabatundeAdenuga&5 Ors. V, K.Odunewu&Or [2001] 2 NWLR (Pt.969)184 at 195 as per Kabiri Whyte JSC defined injunction thus:

�An Injunction is an equitable order restraining the person whom is directed from doing the things specified in the order requiring in exceptional situations the performance of specified act.

The order of injunction is available to restrain the defendant from the repetition or continuance of the wrongful act or breach of contract complained of, in Egan V. Egan [1975] 2 All ER 167. It is generally granted to protect a legal right which is in existence, See Union Beverages Ltd V. Pepis-cola International Ltd&ors [1994] 3 NWLR (Pt.330) 1 SC.  This is with the object of keeping the status quo until the question in issue between the parties is determined, see Okafor V. Nnaife [1987] 4 NWLR (PT.64) 129. The Applicant must show that he has sufficient interest in the relief sought and the Court willput to consideration his stake and compelling interest, See the case of Okoli v. Duru [2007] All FWLR (Pt.367) 887 at926, Para F-G. It is a fact therefore that 1st defendant�s Exhibit C is the most recent agreement between the parties, and the law is trite that the grant of an injunctive relief by the Court is discretionary as it is a consequential order that naturally flows from the declaratory ordersought and granted by the Court See the case of E.S.C.S.C V. Godfrey[2006] 18NWLR (Pt.1011) 293 CA. I have held earlier in this Judgment that the collective Agreements signed by the Unions has been superceded by 1st defendant�s Exhibit C, thus as a consequence, the 1st defendant his privies and agents arehereby restrained, from breaching the Memorandum of Terms of Settlement dated 20th September 2017 under the aegis of the joint action committee i.e. 1st defendant�s Exhibit C executed by the claimant, 2nd and 3rd defendant. I so hold.

In sum and for the avoidance of doubt, I hereby declare and order as follows:

  1. That all members of the Claimant, 2nd and 3rddefendant are entitled to payment of arrears of their Earned Allowance.

 

  1. That the 1st defendant is to pay the Outstanding Earned Allowances owed members of the claimant from the 1stTranche and 2nd tranche upon the release of Funds by the Federal Government.

 

  1. That the 1st defendant, his privies and agent are hereby restrained from breachingthe collective Agreement executed by the Unions with the Federal Government under the aegis of Joint Action Committee and the Memorandum of Terms of Settlement dated 20th September 2017.

 

  1. That the 1st defendant, his privies and agents are hereby restrained from misappropriating money meant for the payment of the allowance due members of the Claimant.

 

  1. That the 1st defendant should provide a workable avenue for the payment of the Outstanding Earned Allowances owed members of the claimant from the 1stand 2ndTranche upon the release of same by the federal Government.

I make no order as to cost.

Judgment is accordingly entered.

 

 

HON. JUSTICE A.A. ADEWEMIMO

JUDGE

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