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The Court of Appeal, Enugu Division, has dismissed an appeal filed by the National Universities Commission (NUC) and its former Executive Secretary, Peter Okebukola, challenging the judgment of the Federal High Court Enugu Division, which nullified the closure of a private university, Richmond Open University, Arochukwu Abia State by the commission in 2006.
The three-man Appeal Court panel in a unanimous judgment, said it found no merit in the appeal and therefore dismissed it.
The first, second and third respondents in the appeal were Dr. Ifeanyichukwu Okonkwo, for himself and on behalf of Richmond Open University, the Federal Government of Nigeria and the Inspector General of Police, respectively.
Delivering the lead judgment, Justice Olasumbo Goodluck said she was unpersuaded by the submission of the learned counsel to the appellant that the judgment of the lower court was a nullity, which the lower court itself could set aside.
In the view of Justice Goodluck, the lower court rightly and validly declined to set aside its judgment on the reasoning that “the exceptions in the case of Abana vs, Obi” warranting the court to set aside its findings, did not exist in the matter before it.
Regarding the appellant’s submission that the originating summons filed by Ifeanyichukwu Okonkwo, a layman, renders the entire process filed by the respondent a nullity, Justice Goodluck agreed with the decision of the trial court in this regard.
Quoting the trial court, the judge said: “On the issue of Mr. Okonkwo, a layman appearing for and on behalf of Richmond Open University to conduct this matter-this Honourable Court is functus officio on the judgment. The case of MODE NIG LTD VS.UBA (supra) is authoritative on the point but the matter is better raised in the Court of Appeal because any further review of the judgment of this court on the 14/7/06 on this point, will amount to this Honourable Court, sitting on appeal on its judgment and I resist the temptation to do so.”
Speaking further, Justice Goodluck said: “I am unable to fault the decision of the trial court in this regard. Any attempt to upset the findings of the learned trial court in respect of the judgment given on the merit can only be considered by the Appellate Court. This case clearly does not fall under the exceptions for setting aside the judgment of the lower court. In effect, the trial court rightly dismissed the appellant’s application for setting aside its judgment.
“Accordingly, I find no merit in this application. It is hereby dismissed.”
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The other two justices in the Appeal Court panel, Justice R. Maiwada Abdulahi and Justice Joseph Eyo Ekanem, both concurred with the lead judgment announced by their colleague, Justice Goodluck.
In July 2006, Justice A.L Allagoa, then of the Federal High Court Enugu Division, entered judgment in favour of Richmond Open University in a suit filed on behalf of the university by Dr. Okonkwo, an activist who claimed to be an investor in the university founded in 2006.
Joined as the 1st to 4th respondents in the suit were Professor Okebukola, NUC, the Federal Government of Nigeria and the Inspector-General of Police.
Justice Allagoa in his final judgment dated 14/7/2006, declared that by purview of Section 39 (1) and (2) of the 1999 Constitution, Richmond Open University established for the dissemination of information, knowledge, ideas and opinion, was not an illegal private university.
Consequently, the judge held that the declaration of the private university as illegal and shutdown of its operations by NUC, was illegal and a flagrant violation of Section 39 (1) and (2) of the 1999 Constitution.
According to Allagoa, Section 4 and 5 of the NUC Act cap N81, relates to powers and functions of the 1st and 2nd defendants (Executive Secretary and NUC) to advise the President and the Government of the State, through the Ministers, on the creation of new universities and other degree-granting institutions in Nigeria, and has no provision, which can legitimately limit or restrict the right of the private individual to establish a university.
He further declared the actions of the 1st to 3rd defendants as illegal, arbitrary, unconstitutional, null and void and awarded exemplary/aggravated damages in the sum of N5 million against the 1st to 3rd defendants in favour of the plaintiffs.
He granted a perpetual injunction, restraining the defendants from interfering in the institution, Richmond Open University, established for the dissemination of information, knowledge, ideas and opinion, adding that the plaintiffs have the right to own a business enterprise while the defendants have no right to abolish or close, except as provided in the statute.
The defendants paid the N5 million damages to the plaintiffs.
