Can ASUU be sued?

Introduction

The privity of contract rule opines that where a person is privy to or is a party to a particular contract such a person can sue and be sued under the contract in the case of any breach by the other party or himself. However, a third party (i.e., a person who is not a party to that contract) can neither sue nor be sued under the contract. This is because in every contractual agreement, parties to the contract must be said to be ad idem before it can be enforced on them. By being ad idem it is meant that they must have been mutually and voluntarily agreed on the terms of the contract without any form of variation. It therefore follows that when a party is not privy to a contract it cannot be said that he is ad idem with the other party.

 It is on this basis that it has been contended by some students and my humble self that since the students of Nigerian Universities which are currently on strike were not party to the ASUU-FG agreement in 2009 then, it is improper to subject their academics to the hazards of strikes. I have also argued that if indeed the doctrine of privity applies to the situation, then the ongoing ASUU strike is an illegality and the students must rise up to the occasion to challenge  the mishap.

This article therefore takes a careful look at the issue vis-a-vis the existing labour laws in Nigeria so as to properly answer the question underscored by this piece. This article will also try to address some of the arguments raised by friends of mine on face book when I brought up the subject sometimes ago on the social networking site. One of them had contended that ASUU cannot be sued for the on-going strike as they are not the ones in breach of the agreement; the Federal government is. Thus the federal government should be sued instead. Another had also contended in favour of ASUU saying that, although it may be said that ASUU owes the students a duty to teach them by virtue of their being lecturers of the university, they nonetheless cannot dispose of those duties if their entitlements have not been paid them by their employers.  

Can ASUU be sued?

 Of a truth, as much as I would but like to share in the sentiments of my friends, I cannot but say that the answer to the question perhaps is that neither ASUU nor the Federal Government can be sued-My reasons are not farfetched.

First and foremost; the agreement between the Federal government & ASUU which was arrived at in 2009 for which ASUU has embarked on the current strike is a collective agreement which by law is non-enforceable (S. 91 of the Nigerian Labour Act cap L1 LFN 2004, Union Bank of Nigeria v. Edet (1993) 4 NWLR 288). A collective agreement may however be enforced where it has been incorporated into the individual contract of the employee as was judicially settled in the case of A.C.B V. NWODIKA(1996) 4 NWLR (pt. 443) 470. Nevertheless, since parties to a collective agreement cannot take legal action against each other for refusal to keep to the agreement, the law allows for a legitimate way by which employee unions can vent their annoyance over the non-implementation of an agreement arrived at between them and their employers and that is by embarking on strikes. (See section 6(b) &(c) and section 9(a) of the Trade Unions (amendment) Act 2005) It should be noted that the prerequisites highlighted by paragraphs a – e of section 6 above are the only legitimate grounds for which a trade union can embark on any strike action. Any trade union which embarks on strike contrary to section six above is guilty of an offence (See section 7 of the same act)

It will therefore mean that the students will have no case to be heard on should they decide to sue the union for the reason that ASUU by law is empowered to go on strikes to protect and promote their interests.

More so, assuming without conceding that the ongoing ASUU strike is an illegality probably because they did not give requisite notification to the government before embarking on the strike, the proper party to sue in that case is the government and not the students since there is no contractual nexus between the students and ASUU.

Can the Federal government be sued?

On the other hand, the federal government cannot be sued because although by virtue of section 18 of the 1999 constitution of Nigeria as amended, the government (which is inclusive of the federal and the state government) is mandated to direct its policies towards providing free and affordable education for all Nigerians as at when practicable, the same constitution provides in section 6(6) (c) that the government cannot be sued if it fails to provide the free education. by this singular provision the federal government cannot be sued by the students if the actions of ASUU (government employees) undermine their educational careers.

 Recommendations

·        Being that the students cannot sue ASUU as of right they however can appeal to the consciences of the striking lecturers to go back to the classrooms to teach them pending when the government will heed their demands.

·        Similarly the constitution guarantees the right of peaceful protest and peaceful assembly to all citizens. Where the strike gets out of hands students reserve the right under their umbrella body to protest the effects of the strike.

·        The ongoing constitutional amendment affords the legislature the ample opportunity to make the provision of section 18 and other provisions of chapter two of the constitution justiciable so that the government can be held liable each time they violate any agreement with the lectures which usually have adverse effects on the students.