The Court of Appeal sitting in Abuja will on Friday (tomorrow) rule on the application filed by the striking Academic Staff Union of Universities, challenging the interlocutory injunction of the National Industrial Court of Nigeria (NICN) which directed the ASUU members to resume academic activities.
The court fixed 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 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.
According to him, the application for leave is supported by 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 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 is 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Igwe argued that the motion for stay of execution of the order of the lower court can no longer be withdrawn, since both parties have joined issues on the matter, urging the court to look at the application and dismiss it based on balance of justice.
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“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 said.
He maintained that there is no exceptional circumstances for which the court should grant the application of the applicants, saying: “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 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,” the lawyer said.
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.
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. He 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 presiding judge, Justice Hamma Barka, asked Falana for an undertaking that his clients (ASUU) will call off the strike, he responded: “I will give them professional advice. They have already fixed meeting for this Sunday. This matter may be resolved in a few hours.”
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