The Court of Appeal, Enugu Division, has dismissed an appeal filed by the National Universities Commission and its former Executive Secretary, Peter Okebukola, challenging the judgment of the Federal High Court Enugu Division, which annulled the closure of a private university, Richmond Open University, Arochukwu, Abia State, by the commission in 2006.

The three-man panel of the Court of Appeal, in a unanimous judgment delivered on December 6 and obtained by our correspondent on Sunday, found no merit in the appeal and dismissed it.

The first, second, and third respondents in the appeal were Dr. Ifeanyichukwu Okonkwo, who represented himself and Richmond Open University, the Federal Government of Nigeria, and the Inspector General of Police, respectively.

Delivering the lead judgment, Justice Olasumbo Goodluck stated that she was unpersuaded by the appellant’s argument that the judgment of the lower court was a nullity, which the lower court itself could set aside.

In the view of the judge, the lower court rightly declined to set aside its judgment on the grounds that the exceptions in the case of Abana v. Obi, which would warrant the court to set aside its findings, did not apply in this case.

Regarding the appellant’s argument that the originating summons filed by Ifeanyichukwu Okonkwo, a layman, rendered the entire process filed by the respondent a nullity, the appellate court agreed with the trial court’s decision.

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 v. 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 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.”

Justice Goodluck continued, “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 concerning the judgment on the merit can only be considered by the Appellate Court. This case 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, the judge found no merit in the application, and it was dismissed.

The other two justices in the Appeal Court panel, Justice R. Maiwada Abdulahi and Justice Joseph Eyo Ekanem, concurred with the lead judgment delivered by Justice Goodluck.

Recall that 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, which was founded in 2006.

Joined as the first to fourth 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, according to Sections 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 NUC’s declaration of the private university as illegal and the shutdown of its operations was unlawful and a flagrant violation of the Constitution.

According to Allagoa, Sections 4 and 5 of the NUC Act, Cap N81, which pertain to the powers and functions of the Executive Secretary and NUC to advise the President and the Government of the State on the creation of new universities and degree-granting institutions, have no provision to legitimately limit or restrict the right of a private individual to establish a university.

He further declared the actions of the NUC and others as illegal, arbitrary, unconstitutional, null, and void, awarding exemplary damages of N5 million against the NUC and others in favour of the plaintiffs.

He granted a perpetual injunction restraining the defendants from interfering with Richmond Open University, affirming the plaintiffs’ right to own a business enterprise, while the defendants had no right to abolish or close it, except as provided by law.

The defendants paid the N5 million in damages to the plaintiffs.

Punch