The Presiding Judge, Enugu Judicial Division of the National Industrial Court, Hon. Justice Oluwakayode Arowosegbe has declared that Universities Miscellaneous Provisions Amendment Act 2012 has a retroactive effect and the Agreement between the Federal Government of Nigeria (FGN) and the Senior Staff Association of Nigerian Universities (SSANU) signed on the 5th of November 2009 became effective on 1st July 2009 and the 65 years retiring age after the execution of the agreement is effective from 1st January 2010.
Justice Arowosegbe affirmed that many other documents as exhibited shows that all the Federal Universities in Nigeria complied with the above directives, except the University of Nigeria, Enugu.
The Court declared the retirement of Mr. Umah Orji and 4 others after the 1st January 2010 as premature, irregular, null, and void and of no effect for being contrary to the spirit of the agreement between the Federal Government of Nigeria (FGN) and the Senior Staff Association of Nigerian Universities and awarded the sum of N300k as cost of action against the University.
Justice Arowosegbe held that a Collective Bargaining Agreement (CBA) cannot be treated like ordinary contractual agreements.
From facts, the claimant- Mr. Umah Orji and 4 others had deposed that, the Federal Executive Council approved the 65-year retirement age and by the Ministry of Education letter, 1st January 2010 was the effective date and the Universities (Miscellaneous Provisions) (Amendment) Act 2012 was silent on the effective date.
They stated that, while all other Federal Universities implemented the 65-year retirement age with retroactive effects, the University of Nigeria [UNN] refused to implement the retirement age, but has complied with earned allowances.
In defense, the defendants- UNN, Its Governing Council, Vice Chancellor, and Registrar maintained that there is no law that prescribed that staff due for retirement in 2009 should be kept in service, that the immediate implementation of the CBA was discretionary at the instance of each university since UMPAA was passed in 2012 without specifying the commencement date, and has no retrospective effects.
In addition, the learned counsel to the defendant, DR. M.E. AJOGWU [SAN] with 2 others urged the Court to dismiss the case, on the grounds that the suit was filed 9 years after the cause of action and thus, statute-barred, making the Court to lack jurisdiction to entertain the case, and the applicants lacked the capacity to sue in representative capacity because each applicant has a separate and independent contract with the defendants.
In opposition, the Applicants' counsel, A.M. Joseph submitted that the case is not statute-barred and argued that, the applicants and those being represented have common interests and would be bound by the reliefs, urged the court to dismiss the objection and grant the reliefs sought.
Delivering the judgment after careful evaluation of the submission of both parties, the presiding judge, Justice Oluwakayode Arowosegbe dismissed the objection and held that the objectors did not state the exact statute that makes the action statute-barred and from the unchallenged pieces of evidence the claimants have a common interest to act for all, united by premature retirement by the same employer.
On the substantive case, Justice Arowosegbe noted that the Collective Bargaining Agreement is binding on the UNN like other federal universities and the UNN has no option than to obey it.
“To now single out UNN staff for non-implementation of the CBA, would be discriminatory against them amongst equals, without any justifiable reason, contrary to ILO C111 and S. 254C-(1)(f)&(g) of the 1999 Constitution [as altered].
“It has always been the law that amendments date back to the original instruments or statutes amended, where no exact dates are nominated in the amending statutes or instruments. From the heading and preamble to the UMPAA 2012, it clear it is an amendment to the UMPA 1993. Being so, there is no gainsaying it; the claimants’ erudite counsel has the day on this. The UMPAA 2012 has retroactive effect and, I so find and hold.
“From this, it is not difficult to see that, the intention of the contracting parties was that, the January 1, 2010 was the tentative/temporary [notional] date on which the 65-year retirement age would take effect, pending the amendment of the principal Act. Were this not so, it would not have been necessary at all, to give six-month moratorium for the 65-year benchmark for the retirement of the non-academic staff.
“A collective bargaining agreement cannot therefore be treated like ordinary contractual agreements. It is above all other forms of agreements because, it is the only type of agreements, which the NICA and then the Constitution specifically and directly provide for their validity and enforcement and, placed the sacred duty of ensuring these on this Court.” Justice Arowosegbe ruled.
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