By Okhide Em’ya David
Academic staff Union of Secondary Schools (ASUSS) has once again gained an upper hand in its struggle to liberate itself from the Nigerian Union of Teachers (NUT) after Supreme Court of Nigeria in Abuja set aside a Judgment delivered on the 11th of July 2014 by a Court of Appeal in favor of the NUT.
The Supreme Court ordered that the appeal number CA/A/256/ 09, be heard de novo by another Panel of Justices of Abuja Division of the Court of Appeal, as requested by ASUSS.
The Supreme Court also declared that the Appeal having succeeded on the first issue for determination alone and having regard to orders it has made remitting the appeal to the lower Court for hearing, it does not find it necessary to address the remaining issues.
In the ruling, the Supreme Court traced the issues contended to an originating summons by the National Union of Teachers NUT against ASUSS at a Federal High Court in Abuja on May 20, 2008.
At that court, they prayed the Court to determine the scope of the powers of the Nigerian Labour Congress (NLC) and the office of the Minister of Employment, Labour and Productivity with respect to the registration of trade Unions in view of provisions of sections 3 and 5 of the trade Union’s Act.
They also prayed the Court to prevent the registration of an association known as Academic Staff Union of Secondary Schools which NUT contended was not registrable as trade Union on the grounds that it is sufficiently representing its class of interested persons, via Secondary School Teachers, whose interests the said ASUSS is intended to represent.
The appellants and 3rd /4th respondent in their preliminary objections contended that the Federal High Court has no jurisdiction to entertain the case on the ground that the Jurisdiction of the Court is excluded by virtue of the Trade Union’s Act 2006, demanding that the proper venue for the determination of the case was the National Industrial Court.
The first respondent, NUT had based its claims within section 251(1) (q) and (r) of the 1999 Constitution which means that the Federal High Court has exclusive Jurisdiction to entertain the cases.
NUT with the aid of decided cases contended that the issue of Jurisdiction to adjudicate over disputes in democratic dispensation is regulated by the country’s ground norms, which is the constitution.
The Union said provisions of 1999 Constitution override every other provisions on the same issue in any other legislation as Trade Union’s Act and the National Industrial Act adding that all Laws are required to conform and be consistent with the 1999 Constitution and that any Law that is not consistent with the 1999 Constitution is null and void to the extent of inconsistency.
In a considered ruling on March 10, 2009 the Federal High Court in Abuja presided over by Justice M O Umar dismissed the Appellants and 4th respondent’s objection and assumed the Jurisdiction to determine the first and second respondent’s action under section 251 (1) (q) and (r) of the
Constitution of the Federal Republic of Nigeria, 1999.
The Supreme Court recalled that the appellants dissatisfied with the ruling went to the Appeal Court which also dismissed the said Appeal.
Now the appellants in their approach to the Supreme Court raised two questions including the Constitutional issue of improperly constituted Panel of the lower Court when the Judgement was delivered on July 11, 2014.
Secondly, having regard to the jurisdictional and radical nature of sections 254 (c) of the 1999 Constitution, whether the lower Court was right to have refused to transfer the subject matter of the appeal to the National Industrial Court which is now the appropriate court to the lower court on 9th day of June.
The Supreme Court having thoroughly examined the postulations of Counsels to the Parties as they relate to the Constitution and previous cases concluded that it is inferential to hold that the judgement delivered by Justice E Ekanem, who did not sit with the Panel of Justice that heard the Appeal on the date set for hearing, assuredly affected the competence of the Court of Appeal in the proceeding conducted in the delivering of the Judgement.
The Supreme Court said this is due to an improperly constituted court as regards its members such that no matter is qualified for one reason or another, is capable in law that any defect in competence is fatal as the proceedings are nullity.
The Court drew attention to section 247 (1) of the 1999 Constitution which prescribes an average of 3 Justices in this type of proceeding, saying “this is not open for any other Justice who did not participate in hearing the Appeal to just appear either in substitution for or in addition to those who heard the Appeal, thus it will bring about injustice of miscarriage of justice to the Parties of the Appeal.
The Supreme Court further explained that it is of the view that “a person or Authority that did not give one audience or hearing on a complaint brought before him/her against another person may not likely determine or decide the case in ones best interest or justify the matter fairly. “
In the words of the Court: “It is only fair to resolve this issue in favour of the Appellant and hereby hold the Judgement delivered on 11 07 2014 as nullity.”
The Supreme Court said “in other words, the key question in the appeal is whether a Justice who did not participate in the hearing of an Appeal can take part in writing its own Judgement or opinion?”
“In the Circumstances I will answer the question in the negative.”
As addressed above, the entire proceeding before the Court of Appeal was a nullity. This is because all the members who heard the Appeal and those who wrote the Appeal were not the same. That is to say the members who wrote the Appeal were not present throughout hearing of the Appeal which includes delivery.
The Supreme Court at the ruling however did not award any cost saying all Parties should bear their own respective costs .
