Several meetings between ASUU and the federal government have ended in a deadlock.
The Court of Appeal in Abuja has released a copy of the judgment that ordered the Academic Staff Union of Universities (ASUU) to call off its ongoing strike.
The certified true copy of the court proceedings was obtained by SaharaReporters on Wednesday.
The court last Friday dismissed the union’s application for a stay of execution of an earlier ruling of the National Industrial Court directing the university lecturers to resume work.
The three-member panel of the Court of Appeal led by Hamma Barka granted ASUU permission to appeal the ruling of the industrial court but ruled that it must first resume work to be allowed to file the appeal.
It said should ASUU fail to resume work at universities, the permission it gave the union to appeal against the interlocutory injunction of the National Industrial Court “will be automatically vacated.”
It gave the university lecturers’ union seven days within which to file its notice of appeal against the order of the National Industrial Court.
ASUU has been on strike since February 14 to press home the demand for improved funding for universities, and a review of salaries for lecturers, among other issues.
Several meetings between ASUU and the federal government have ended in a deadlock.
Consequently, the Nigerian government approached the National Industrial Court to challenge the strike.
On September 21, it granted the government’s application for an interlocutory injunction to restrain ASUU from continuing with the strike pending the determination of the substantive suit.
Dissatisfied with the ruling, the union approached the Court of Appeal, seeking leave to challenge the lower court’s decision.
The certified true copy of the court proceedings reads in part, “On the 6th of October, 2022 being the date scheduled for the hearing of the application, Mr. Falana SAN, learned counsel for the Applicant, applied to withdraw prayer two in the motion papers, urging the court to grant his application per player one. Mr. Igwe, SAN, the Learned Counsel.
“Respondents relied on the counter affidavit filed, adopted the written address also filed by him in urging the court to refuse the application. Both Senior Counsel adumbrated on their respective positions, with Mr. Igwe vehemently contesting the applicants oral application seeking to withdraw prayer 1, in the applicants motion, contending that issues having been joined, the court must of necessity rule on same.
“In the written address filed in support of the application, the learned counsel for the applicant proposed two issues for resolution, to wit:
“i. Whether this honourable court can grant leave to the Appellant/Applicant to appeal the ruling of the National/ Industrial Court in suit no: NICN/AB3/270/2022 between FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES. And Whether this honourable court can make an order staying the execution of the order of the National Industrial Court suit no: NICN/AB3/270/2022 between FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES.
“On the first issue, Learned Counsel made reference to the provisions of section 243 (3) (a) of the Constitution of the Federal Republic of Nigeria as amended and Order 6 (1) (a) and Rule 2 of the Court of Appeal Rules, 2021 to submit that this court is clothed with the vires to grant the instant application.
“It is also his submission that the applicant being desirous of challenging the judgment of the National Industrial Court, imperatively has to seek the leave of court to file his appeal; other than grounds of fundamental rights. In support of the proposition counsel cited a host of cases including Skye Bank Plc. Vs. Iwu (2017) 16 NWLR pt. 1590.
“On the second issue it is the submission of the Learned senior counsel relying on Ogunremi Vs. Dada (1962) 1 ALL NLR 670 and the case of Sodeinde Vs. Registered Trustees of Ahmadiya Movement in Islam (1980) 1-2 (SC) 163 @ 170 to submit that this court is vested with the vires to stay the execution of the orders of the Learned Trial Judge being appealed therein as a party aggrieved in order to preserve the res and/or their legal right can approach the same court or an appellate court for an order staying the same order or judgment.”
It further reads, “With regards to the second issue, it was contended by Senior Counsel that the Applicant approached this court with dirty hands and cited instances of disobedience of court orders of the National Industrial Court and other instances related thereto to argue that the applicant being dented with disobedience of orders of the National Industrial Court should not be given a hearing. He cited on this, the cases of Enakwe Vs. I.M.B Nigeria Ltd. (2006) 19 NWLR Pt. (1013) 146 @ 180 as well as the Military Governor of Lagos State & Ors. VS. Ojukwu (1986) ALL NLR 233, counsel urged the court to refuse the application for stay of execution.
“On the third issue, Learned senior counsel argued that prayer two of the Appellants seeks to enthrone illegality, he drew the court's attention to the provisions of sections 18 (1) and (2) of the Trade Disputes Act to posit that courts do not encourage illegality on the principle of ex turi causa non oritur action.
“With regards to the last issue, it was submitted that the applicant has failed to show any special circumstance and thereby failed to satisfy the conditions for the application of the grant. In that regard it was argued that applicant failed to show any special circumstance and cited the case of Amadi Vs. Chukwu (2013) 5 NWLR Pt. 1347 301. The learned senior counsel also alluded to the absence of arguable grounds in the Appellants proposed Notice of appeal, absence of balance of evidence and justice against the applicant, and concluded that the cases cited and relied upon by the learned counsel for the applicant are of no use to the applicant, and thereby urged the court to refuse the application.
“Accordingly, I have accorded the submissions of the senior counsel in the matter due consideration, and it is my humble view, that the substance of the entire application centers on whether applicants application can be granted in the circumstance.
“In dealing with the preliminary issue as to whether the applicants withdrawal of prayer 2 can be countenanced, in view of the argument posited that parties had joined issues on the issue, I am unable to agree with Mr. Igwe that applicants cannot even at that stage withdraw their prayer, and accordingly the prayer to withdraw prayer one seeking for order staying the execution of the order of the National Industrial Court per Hon. Justice P.I. Hamman in suit No. NICN/AB3/270/2022, between Federal Government of Nigeria & 1 or vs. Academic Staff Union of Universities delivered on Wednesday the 21st day of September, 2022 having been withdrawn is hereby struck out.
“The application in the circumstance remains to be considered on the basis of whether this court can grant the Applicant leave to appeal the interlocutory ruling of the National Industrial Court of Nigeria, made on the 21st day of September, 2022 between the two combatants.
“In that regard, I consider the starting point as being section 240 of the Constitution of the Federal republic of Nigeria 1999 as amended, to the effect that this court is imbued with the power and jurisdiction to entertain appeals from the National Industrial Court of Nigeria, amongst other courts of the land. Section 243 (3) of the Constitution which provides that:
“An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly; Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
“I understand this constitutional provision as demanding that before any decision of the National Industrial Court of Nigeria will lie on appeal to the Court of Appeal, the leave of the Court of Appeal must be sought. The case of Skye Bank Plc vs. Iwu (2017) 16NWLR (pt. 1590) cited by the applicants appears to be the locus classicus on the matter. All I am trying to say here is that the requirement for leave of this court is only subjected to the provisions of section 24 of the Court of Appeal Act for which a clear understanding thereof permits envisages application for leave to be made to this court, but peradventure, the application is made before the lower court, the timing circumscribed by section 24 (2) of the court of Appeal Act may be enlarged. The argument therefore that Order 6 Rule 4 of the Court of Appeal Rules, 2021 had been breached, and all the authorities cited in that regard, is not available to the Respondents.
“Now worrisome, is the failure of the applicants herein to obey the judgment of the lower court, thus leading the learned counsel for the Respondent to draw the attention of the court to that fact, contending that the applicants are seeking for order of this court with dirty hands, and in that regard, the case of the Military Governor of Lagos State vs. Ojukwu was cited and relied upon. Our attention was also referred to the case of Mobil Oil Nig. Ltd vs. Assan (1995) 8NWLR (pt. 412) 129 @ 150, where the Supreme Court held that:
“’Chief FRA Williams, SAN referred the court to the cases of Huang & Ors. v. Bello & Ors. supra and Restico Nigera Ltd. V. Societe General Surveillance SA supra. These are Court of Appeal decisions and were in my view rightly decided. What the court below was saying in both cases was that where a person is appealing against a matter in which he had suffered a defeat and asked for a stay of execution pending the determination of the appeal, he would not be liable in contempt merely because he had not obeyed the order which he is appealing against or which he wants stayed pending the appeal’.
“Afe Babalola SAN, in his treatise, pointed out that in exceptional cases there can be lawful disobedience of an injunctive order, opining that; there are exceptions to the rule that any person against whom an order is made must obey it. Also in Odogwu v. Odogwu (1992) 2 NWLR (PT 225) P 539 at 554 the Supreme Court held that the common law rule precluding persons in disobedience of the order of court against them from being heard in respect of the matters which they stand in disobedience permits of an exception where the order disobeyed was made without jurisdiction or where the party in disobedience is challenging the validity of the order.
“In view of this state of the law, I am inclined to granting the leave to appeal the decision of the National Industrial Court of Nigeria delivered on the 2nd day of September, 2022 as prayed on the condition that the order of the lower court is obeyed.
“In conclusion, my lords permit me to express the view that I have known Mr. Falana, SAN for a long time as an advocate of the rule of law, and obedience to lawful orders made by courts of the land. He has championed that cause in numerous cases. I challenge him to aid the obedience of lawful court orders made.
“In conclusion, prayer one in the motion papers is granted as prayed, and Applicant granted 7 days to file his notice of appeal before the court below.”
Meanwhile, a source on Monday told SaharaReporters that Ngige advised the President to ban the association for allegedly failing to end the strike action.
“Ngige is asking President Buhari to ban ASUU, he claimed that ASUU hasn’t respected court order. Unknown to him, the Court of Appeal hasn’t released court recording requested by ASUU,” a source told SaharaReporters.