While speaking about matters arising from the suspension of the ASUU strike on Channels Television’s Sunday Politics, on 16 October 2022, the President of the Academic Staff Union of Universities (ASUU), Prof Emmanuel Osodeke, said ‘members of the body may find it difficult to get to their respective schools on Monday as they do not have “money for transport”’. Prof Osodeke said unlike those days when lecturers lived in staff quarters very close to campuses, most lecturers now live far away from the school campuses as most schools could not provide accommodation for them. See: “We Don’t Have Transport Fares To Go To Work — ASUU President” (17 October 2022: TheNigeriaLawyer)
The current plight of ASUU members is quite appalling, and I think such should immediately attract the sympathy and positive attention of the Federal Government. It is my humble view that FG should not hesitate in paying ASUU members’ 8-month salary arrears. My reasons for believing the lecturers are entitled to be paid their 8-month salary arrears immediately: ‘Ongoing ASUU strike & FCC Jones Onwuasoanya’s “why I support ‘no-work-no-pay’ policy’ (August 24, 2022: CourtRoomMail). Please, I suggest you help me and first go through my commentary (it’s published) before you reply or judge me. Permit me to respectfully recall my conclusion in the cited (published) commentary:
‘ Conclusion: If strike is based on no-work-no-pay, then workers may never embark on strikes. And if workers are not able to embark on strikes, employers of labor might feel free to violate (collective) labour agreements, knowing that workers won’t be able to anything other than whine and complain which achieve little or nothing. Strike action is accepted all over the world, and endorsed by international legal instruments, to most of which Nigeria is a signatory, as employees’ last resort towards pressing homes their legitimate demands and in getting defaulting employers to keep agreements freely entered into with employees. If Nigerian Governments are interested in salvaging whatever is left of (the carcass of) public university education in Nigeria, they should stay far away from anyone advising them to deny public university lecturers their accrued salaries for the period of the strike. If we agree the strike by public university lecturers in Nigeria, was lawfully called and embarked upon, about six months ago, if we agree, then there’s hardly any legal, moral, or other rational justification for saying suggesting that the governments shouldn’t pay public university lecturers their salaries for the period. By the way, a reasonable bystander might even look at it this way: if governments had fulfilled its own part of the agreements voluntarily SIGNED, SEALED AND DELIVERED with public university lecturers, there would have been little or no reason at all for public university lecturers to have embarked on this strike in the first place’.
Then, now, see the avoidable quagmire/entanglement as can be gleened from the statement by ASUU President on Channels TV on 16 October 2022. If one interprets ASUU President’s statement in legal terms, one might be forced to reasonably conclude that what the ASUU President is saying is that, perhaps the law shouldn’t be used compel the doing of that which is practically impossible: — Lex Non Cogit Ad Impossibilia.
In 2012, Justice Frankel of the British Columbia Court of Appeal rendered the maxim as follows (in Transportaction Lease Systems Inc. v. Virdi): “the law does not compel a person to do that which he or she cannot possibly perform.” Also rendered as et impotentia excusat legem”, Herbert Broom described this principle as a “fundamental legal principle”, and went ahead to illustrate its application in more details, thus:
“… that … where the law creates a duty or charge and the party is disabled to perform it, without any default in him, and has no remedy over, the law will in general excuse him….”
Therefore, while wholeheartedly thanking ASUU for complying with the order of the Court of Appeal (if you take care of Rule of Law, Rule of Law will take care of you), I sincerely sympathize with ASUU members on their current situation.
Meanwhile, it is my humble opinion that since the Court of Appeal on 7 October 2022, had decided to make an order that was not specifically sought by the Respondents — to order the Lecturers back to work before they’d appeal the NICN order — one wonders why the Court of Appeal didn’t add the following clause, so as to balance the equation:
“…Provided that the Federal Government must forthwith pay all arrears of salaries of ASUU members who embarked on the strike”.
Theodore Roosevelt once said, “Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong. Justice must not be for one side alone; justice must be for both sides”. Truth is, rush to judgement sometimes makes a fair trial hard to achieve. In my opinion, if the Hon Court of Appeal had added this proviso, then, by now, while ASUU members would taking steps in compliance with the orders of both the NICN and the Court of Appeal, ASUU members would be certain that they would have money for fare to and from classes, and also to eat in order to chase away hunger and starvation — on their own part and on the part of their beloved family members. Should teachers be forced to teach on an empty/a hungry stomach? How practicable is it to be a patriot on an empty stomach? Besides, has anyone considered Robert F. Scott’s “…an empty stomach makes a firece dog” declaration? Hence, a hungry Lecturer may find it hard to teach happily and effectively. A hungry man is an angry man. Further, if you compel the horse to the stream, what about forcing it to drink water from the steam?
I respectfully plead with FG to do the needful without any further delay; it’s the reasonable, realistic thing to do, and especially to fastrack a smoother ironing out of all other grey areas in this standoff between ASUU and the Federal Government.
In reaction to ASUU President’s “we don’t have transport fare to go to class”, a certain enlightened, respected friend of mine had this to say on 17 October 2022:
“The strike was an ill wind that blows nobody any good. The only thing that serve justice is where all parties feel the pain… the students who have been at home for 8 months…the lecturer who did not receive salary for the eight months and the federal govt that lost revenue from students payment and bad name or blackmail from the public.”
BELOW WAS MY REPLY TO MY FRIEND’S OPINION:
If you don’t pay Lecturers for the period of the strike, are you saying perhaps that the lecturers should forget (not teach) the topics they ought to have taught during the strike period? Are you saying the Lecturers should forget all the Thesis Supervisions the lecturers would have undertaken during the strike period? Are you saying Lecturers should forget all the exam scripts Lecturers would have marked/assessed during the strike period! You don’t want the Lecturers to be paid but you want the Lecturers to go back to class and teach to cover all the lost or uncovered grounds? How is that the best approach? How is that a reasonable approach? How is that a fair approach? Finally, if you want lecturers (ASUU members) to “feel pain”, please, what pain does the Federal Government feel in the entire scenario, for refusing to keep an agreement it had voluntarily signed? What pain do Nigerian leaders feel for their neglect of good quality education of our children over the years? I ask this question because you want everyone to “feel the pain”! So, there’s need for everyone, not just one side, to feel the pain. And if Nigerian leaders have no pain to feel, why would you subject the Lecturers to such pain for embarking on a lawful strike? What then is the difference between a lawful strike and an unlawful strike, if you refuse to pay Lecturers who embarked on a lawful strike? Meanwhile, what harm would FG or the Nigerian leaders suffer if the lecturers were paid their 8-month arrears of salaries? Remember the money is part of our Commonwealth, not a private property of Nigerian leaders! How does withholding the Lecturers’ salaries promote or contribute to promoting peace and amicable reconciliation?”
By way of conclusion, permit me to recall an earlier statement by me:
“…all what we need now reparation of damaged relations and society, not bullying of a section of it, reconstruction of devasted hopes, not persecution of those who dared to raise their voices; repentance and reengineering, not exacerbation and heightening of tension. We must therefore evolve for our country a conflict resolution method which rejects revenge, aggression, oppressions, victimization and bullying. Our leaders should stop scaring away [some segments of the country] and making them feel not recognized nor welcome. Peace cannot be kept by force; it can only be achieved by understanding…”
◾ SYLVESTER UDEMEZUE, in ” Catholic Cogitation On The Freeze Order Against Bank Accounts Of Alleged #EndSARS Protest Promoters” (November 08, 2020: BarristerNG)
Sylvester Udemezue (Udems)
(17 October 2022)