The decision of the Court of Appeal ordering ASUU to resume work as a condition for it's Appeal from the National Industrial Court to be heard has understandably angered and demoralized members. But the last has not been heard about the dispute. Under the present circumstances, the safest thing to do is to assume a worst case scenario. Doing so is a kind of "safety net" to prepare for the worst though it may ultimately not get to that point. This is in keeping with the age-old motto of the International Boys Scout movement: "Be prepared".
2: For a start, no lawyer in Nigeria WILL OPENLY ask ASUU to disobey court order. No lawyer will do that. But the final decision as to whether to obey any particular order for a group like ASUU is whether it is even possible to obey such order. IF A COURT MAKES AN ORDER THAT IS IMPOSSIBLE TO BE OBEYED THEN THE DOCTRINE OF IMPOSSIBILITY IS AUTOMATICALLY ACTIVATED. All concerned should note that the Court of Appeal in making the order stated that it must be carried out without fail on Friday 7th October, 2022 as the ONLY condition to entertain ASUU's Appeal! The logical implication is that as the strike was not called off on 7/10/22, the order has not been obeyed! In law, even if the strike is called off on Saturday 8/10/22 or any time subsequently, it cannot be regarded as compliance to the order of the court because in law, a court order must be carried out in specific terms! And the court knows that even if ASUU wished to obey the order it made, it cannot at that time of the day automatically reach its branches to convene their branch congresses etc to get concurrence to call off the strike. This is so because if the leaders of ASUU decide to call off the strike unilaterally, that in itself will be illegal because it will be against the constitution and terms of engagement of ASUU. And you are not allowed to commit illegality while discharging/carrying out a legal order! So the egg heads of the Court of Appeal knew what they were doing! And they know that their order is impossible to carry out at the time of the day it was made and on a Friday!
3: As a preliminary teaser on the doctrine of impossibility, let me take colleagues back in time, to the characters in William Shakespeare's play, Macbeth, which dealt with a sensitive and touchy issue of indebtedness to a Jew named Shylock who, against all entreaties, insisted on exacting the terms of the loan agreement from the debtor by cutting a pound of flesh from him. In handling the critical situation, the judge in that play named Portia agreed that Shylock should cut his pound of flesh from the debtor as stipulated in their terms of agreement. However, the judge also directed that in cutting his pound of flesh, Shylock must ensure that there is no single drop of blood whatsoever because shedding blood was not part of the terms of the loan agreement! That way, Shylock could not proceed to collect his debt because he could not cut a pound of flesh without a drop of blood! That way, the erudite judge tacitly invoked the doctrine of impossibility to solve a legal problem by frustrating the scheme of a wicked creditor. That is where literature meets law! Does anyone find any resonance with the order of the Honourable Court of Appeal that ASUU must call off the strike on Friday 7/10/2022 as the condition for it's Appeal to be heard? By that order, the court gave each side what they wanted which in substance translates to giving them nothing! And that is partly why the ASUU/FG dispute cannot be solved by the court.
4: Now, we return to the matter on hand. And the question then arises as to what will happen if ASUU, for instance, does not obey the court order for any reason? The answer to that question is part of the worst case scenario. In attempting to answer the above question, we should all bear in mind that as one has repeatedly stated previously, the FG/ASUU dispute is not a court issue and it's resolution will not come from any court.
5: Having stated as above, while waiting for a political solution to the dispute (which is the only effective one), the main option open to ASUU is to file an interlocutory Appeal to this latest decision of the Court of Appeal to the Supreme Court. In doing so, it does not mean that ASUU or it's members can be certain or even confident of getting a favourable decision from the Supreme Court, though anything can happen. It only means that ASUU can use it to buy a little time while the heat is sustained and stakeholders continue to engage the FG.
6: The next question is: what happens if the Supreme Court rules against ASUU? The answer is: nothing! But it will then mean that the dispute has got to a crunch. At that stage, ASUU will be accused of contempt of court if it refuses to resume work. And if that happens, the question will arise as to "who is ASUU?".
7: Ordinarily, under the law, an Association just like a company is different from the individual members of the union meaning that ASUU leaders and members can ordinarily hide under the veil as an abstract entity to evade criminal or quasi-criminal liability such as the charge of contempt of court. However, the lawyers to the FG are aware of that escape route and therefore they took steps to block it by couching their prayers to cover ASUU, it's agents or privies etc. This means that the corporate or associational veil covering ASUU leaders must be removed to get at the individual leaders of ASUU. (These are issues of law). Since it will be practically impossible to cite all ASUU members for contempt of court, the likely thing the government may do is to go after the leadership of ASUU for contempt of court! At that stage, we would have got to the final, final crunch! But again, that will not be the end of the matter.
8: The next thing in the chain of worst case scenario (if it actually gets there) is that ASUU leaders may be committed to prison in the very last desperate effort of the FG to break their resolve and vanquish the union. In addition, the FG may also embark on a second prong of intimidation of individual ASUU members by threatening to sack them etc etc.
9: It is at that stage that the principled and patriotic resolve of ASUU leaders and members will be tested to the zenith. One can easily and putatively imagine how happy Dr Chris Ngige and other agents of government will be to see the ASUU President, Prof Osodeke, for instance, in prison! But that will then be the beginning of the end of the struggle and the sight of victory for ASUU if the leaders and members can hold firm, make the necessary sacrifices (including of their liberty if need be) in order to win. At that stage, both the hunger weapon and the threat or reality of sack will make members sorely afraid. However, if they hold firm, they shall win.
10: Now, what will be the effect of the extremity of sending ASUU leaders etc to prison? The effect will be huge both domestically and internationally. The reaction of Nigerians (even in their traditional timidity which successive governments in Nigeria have capitalized on), will be huge and terribly unpleasant going by the the Endsars consciousness and awakening. And all that will be happening in the twilight of a general election!
11: Among other things, the ASUU President and other leaders who may be imprisoned will enter the labour pantheon of immortality as prisoners of conscience. It may not actually get to that point. However, ASUU leaders and members must resolve and get prepared for the worst if ASUU is to emerge victorious in this struggle.
12: Finally, in case anybody is nursing any thoughts about calling off the strike without the government addressing the issues that led ASUU to embark on the strike, the reality is that such thought should be perished because it is simply not an option. If ASUU calls off the strike at this point, both the Union and the members are finished, as in "FINISHED" in capital letters meaning completely and comprehensively finished! In truth, if the strike is called off now, nobody should ever talk or think of increased salary or improvement of the working conditions of lecturers. In fact, the government, now or in future, can even slash the salary of lecturers as a cost-cutting measure since government says it has no money. Other and more terrible indignities will also follow and ASUU will have no voice and no muscle to protest against such measures. Therefore, it would have been better if ASUU didn't embark on strike at all than to contemplate calling it off under the present circumstances!
13: As a last line, let me reiterate that ASUU will surely win the battle if the leaders and members remain united and resolute. ***The budgetary provision for tertiary education in the 2023 budget just presented by the President has been in the works for many months now. So it cannot be regarded as a reason to call off the strike because it has not addressed the main issues that led to the strike. At best, ASUU can note the budget presentation but forge ahead with the struggle.
#To expect university teachers to resume work in empty stomach and ultimately forfeit their 8 months salary is the very definition of wickedness and irrationality.
And so dear friends, courage is the word. People have gone to prison in the past in pursuit of worthy causes. *** Our generation cannot be betrayers of the heritage of wisdom, principle and patriotism bequeathed to us by those who have gone before us. If anyone eats the seed yam because they are hungry, they will have no yam to eat tomorrow because having planted nothing, they will have nothing to harvest!
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