The Hon. President of the National Industrial Court, Hon. Justice Benedict Kanyip, OFR has dismissed the case filed by the Academic Staff Union of Universities (ASUU) on payment of their salaries for the period they were on strike against the Minister of Labour and Employment and 2 others for being an abuse of court process, frivolous and vexatious.
The Court held that the ASUU’s instant case qualifies as res judicata as the relief as to payment of salaries for the period of the strike is nothing but a relief accruing from a cause of action that is being claimed in more than one action.
Justice Kanyip held the ASUU cannot by the instant suit re-litigate a suit it deliberately refused to file a defence to, that doing so would be re-litigation through the backdoor, and awarded the sum of Five Hundred Thousand Naira (N500,000) only payable by the ASUU to the Attorney-General of the Federation within 30 days.
From facts, the claimant- Academic Staff Union of Universities had asked for a determination among others WHETHER having paid the salaries of members of the Joint Staff Union, National Association of Resident Doctors and lecturers in the Medical Facilities/Medical and Dental Academic of the Nnamdi Azikiwe University, Nnewi Campus, Anambra State during the period of industrial actions, the decision of the Defendants to withhold the salaries of the members of the Claimant from February to October 2022 is not discriminatory and illegal by virtue of section 42 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 2 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 2004.
Furthermore, the ASUU prayed for A DECLARATION that the decision of the Defendants to pay the members of the Joint Health Service Union who were on strike from March to May 2018 while electing to withhold the salaries of the members of the Claimant who took part in industrial action from February to October 2022 is discriminatory, selective and illegal.
In defence, the 2nd defendant- Attorney-General of the Federation filed a preliminary objection and urged the court to dismiss the case for lack of jurisdiction on the grounds that the suit is Res Judicata having been decided upon in the Judgment of the Honourable Court delivered on the 30th day of May 2023 in Suit No. NICN/ABJ/ 270/2022 between Federal Government & Anor vs. Academic Staff Union of Universities (ASUU).
The Attorney-General of the Federation submitted that a plaintiff cannot bring an action based on an issue or subject matter that has been competently and conclusively determined by a court of competent jurisdiction.
In opposition, ASUU averred that a cursory look at the records of the exhibited judgement, the reliefs sought in that case, and the parties in that case, inter alia, are quite different from that of the instant case, urged the Court to resolve the questions for determination in its favour, dismiss the 2nd defendant’s objection and grant the reliefs sought.
In a well-considered ruling, the Presiding Judge, Hon. Justice Benedict Kanyip held that in Suit No. NICN/ABJ/270/2022, ASUU had the opportunity to raise all the issues it is now raising in the instant suit including the discrimination issue, but because of their strategic blunder in not filing a defence, they lost that opportunity.
Justice Kanyip held that strategic blunders by counsel in the conduct of a case should earn no sympathy from the court and having lost that opportunity, they now filed the instant suit using the pretext of discrimination as the distinguishing ground for bringing the instant suit.
“This stance is further reinforced when the supporting affidavit of the instant suit is considered. In paragraphs 6 to 12 and 15 of the affidavit in support of the instant suit, the claimant recounted what constitutes the work of a lecturer, how the strike it embarked upon does not abrogate the responsibilities of its members as lecturers, how despite that the defendants refused to pay its members their salaries for the period of the strike, how the strike continued thereby, how the teaching job component of their job was only restored upon the orders of this Court and the Court of Appeal, etc. These were matters ASUU ought to have canvassed in Suit No. NICN/ABJ/270/2022 if they had filed their defence processes. But ASUU “strategically” chose not to.
“ASUU accordingly has itself to blame for all these “strategic” blunders. It cannot by the instant suit re-litigate a suit it deliberately refused to file a defence to. To do so would be re-litigation through the backdoor. I so hold.” The Court ruled.
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