From Adanna Nnamani, Abuja
The Court of Appeal, Abuja will today decide the fate of the two applications filed by the striking Academic Staff Union of Universities (ASUU), challenging the interlocutory injunction of the National Industrial Court of Nigeria (NICN), asking members of the union to go back to work.
The Federal Government had asked the appellate court to dismiss the appeal for being incompetent. The union has also fixed a meeting on Sunday, to decide on the outcome of the court judgment.
The court fixed the date for the ruling after hearing the submissions of the counsels to ASUU, Femi Falana and the Federal Government, James U.K. Igwe.
When the matter was called, Falana told the court that he filed a motion on notice for two main reliefs; the first, for leave to appeal, dated September 28, 2022, and the second, for stay of execution of the order of the lower court, dated September 23, 2022.
He told the court that they were withdrawing the stay of execution and sustaining the application for leave to appeal the ruling. He said the application for leave is supported by a 17 paragraph affidavit, two exhibits-ruling of (NICN) and proposed notice of appeal- and a written address in support of the application.
While noting that the Supreme Court had affirmed the right of people dissatisfied with the ruling of the NICN to appeal to the Court of Appeal, to reject the objection of the Federal Government on the grounds that the substantive matter was yet to be determined by the lower court.
Responding, Igwe said they filed a counter affidavit dated October 5, 2022, and supported by seven exhibits and 32-page written address, urging the court to dismiss the applicants application.
Igwe argued that the motion for stay of execution of the order of the lower court can no longer be withdrawn, since both parties have joined issues on the matter, urging the court to look at the application and dismiss it based on balance of justice.
“We are challenging the entire application. It is incompetent. Your Lordship cannot grant leave in an incompetent application. Both applications offend the rules of the court. Order 6, Rule 4 is mandatory. We urge your lordships to hold that the entire application, being in breach of the rules of this court, is incompetent. The court cannot grant prayers in an incompetent application.
He maintained that there is no exceptional circumstances for which the court should grant the application of the applicants, more so, when they approached the court with dirty hands, including the disobedience of the order of a competent court and refusal to file their defence by September 15, 2022, as ordered by the lower court on September 12, 2022.
Igwe told the court that ASUU even went ahead to tell their members to disobey the order of court on the grounds that they had appealed, in addition to their stay of execution, and that they had not violated any law by remaining on strike.
“The court has a duty to stop this illegality. Once an order is made, to ask a court to rescind the order is asking them to sustain illegality. They cannot withdraw the stay of execution. The court must dismiss it.”
Igwe further argued that the appellant did not appropriately state the parties in the face of his motions, which rendered the entire application incompetent, since the Supreme Court had laid down that it is not mere technicality that notice of appeal and processes must state the names and addresses of parties.
He maintained that no appeal has been entered before the court, upon which his lordships could exercise jurisdiction, pointing out that some of the grounds made by the respondents border on competency.
Making further submissions, Falana said the case before the lower court has been sent back for re-assignment, recalling that the lower court stated that his application for accelerated hearing is of no moment. He said there is no provision in the rules of the lower court for seeking leave to appeal and urged the lordships to grant the leave, as they have the right to do so, adding that the issue of dismissal ought not to arise.
When the court presided over by Justice Hamma Akawu Barka asked Falana for an undertaking that his clients (ASUU) would call off the strike, he responded: “I will give them professional advice. They have already fixed a meeting for this Sunday. This matter may be resolved in a few hours.”