Strike: ASUU knows fate as Appeal Court rules today

By Andrew Orolua and Ukpono Ukpong

The Court of Appeal, Abuja Division will on today, Friday 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.

This is as the Federal Government asked the appellate court to dismiss the appeal for being incompetent.

The court fixed date for the ruling after hearing the submissions of the counsels to ASUU, Femi Falana and the Federal Government, James 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, 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 applicant’s 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Igwe argued that the motion for stay of execution of the order of the lower court can no longer be withdrawn, since both parties have joined issues on the matter, urging the court to look at the application and dismiss it based on balance of justice.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, moreso 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 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 hus lordships could exercise jurisdiction, pointing out that some of the grounds made by the respondents borders 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. 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 court presided over by Justice Hamma Barka asked Falana for an undertaken 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.”

The court reserved its ruling for today (Friday).

Meanwhile, lawyers of the Federal Government and the Academic Staff Union of Universities could not resolve the eight months old strike out- of -court on Thursday.

The lawyers, James Igwe, SAN and Femi Falana, SAN, told the Court of Appeal on Thursday that despite the admonition they could resolve the dispute.

Presiding Justice, Hamma Barka, therefore, stepped the matter down for an hour to enable Falana, the counsel to ASUU to file reply to a copious counter affidavit deposed to by the Federal government in opposition to the hearing of the appeal.

At the resumed hearing on Thursday afternoon, Falana said: “While appreciating your Lordships intervention and quality advice to exploit amicable resolution I am delighted to inform that we have begun consultation. We also agreed that upon the conclusion of this proceedings of today we will continue the consultation with a view to end the strike soon.”

He thereafter prayed the court to allow the application to remain in the file while the consultation continue.

But, James Igwe SAN objected. He said they did not meet at all. He explained that he called Falana yesterday at 5pm when he finished filing his response but Falana did not take his calls.

He further stated that Falana only replied the calls about 8.45pm and informed him that he was at a meeting in the villa over same issue. That Falana sent him same demands, which ASUU claimed they cannot go below.

“Then I told him that we cannot get an amicable resolution except they remove the extreme demands. We agreed to let the court hear his application as it would not be right to keep clients in abeyance”.

In his reply, Falana said he had taken Igwe in confidence and explained to him that President Buhari is meeting with the National Assembly over same issue and that the minister alone cannot resolve the issues.

Secondly, he said that the Federal government has filed copious counter affidavit which ASUU is entitled to respond to.

In a brief ruling Justice Barka gave Falana one hour to file his reply and stepped down the matter till 1.30 pm.