LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR v. MR. M. K. BAMISAYE (2013)

LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR v. MR. M. K. BAMISAYE

(2013)LCN/5930(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of February, 2014

CA/EK/137/M/2013

RATIO

STATUTE OF LIMITATION: WHETHER A LEGAL PROCEEDING CAN BE VALIDLY INSTITUTED AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD

Appeals are prescribed by statute of limitation. When a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See: ODUBEKO v. FOWLER (1993) 7 NWLR (Pt. 308) 637; SANDA v. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (Pt. 174) 379. Per. PAUL ADAMU GALINJE, J.C.A.

STATUTE OF LIMITATION: WHETHER ENGAGING IN NEGOTIATION BY PARTIES CAN STOP THE PERIOD OF LIMITATION STIPULATED BY STATUTE FROM RUNNING.

Although the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling their dispute, generally such a negotiation by parties does not prevent or stop the period of limitation stipulated by statute from running. The law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right of action has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails. See: LAHAN v. THE ATTORNEY GENERAL WESTERN NIGERIA (1976) 39 WNLR 660. Per. PAUL ADAMU GALINJE, J.C.A.

Juctice

PAUL ADAMU GALINJE Juctice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Juctice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Juctice of The Court of Appeal of Nigeria

Between

LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANORAppellant(s)

AND

MR. M.K. BAMISAYERespondent(s)

PAUL ADAMU GALINJE, J.C.A.:(Delivering the Lead Ruling): By a motion on notice dated 5th November, 2013 and filed on the 15th November, 2013, the Applicants herein sought for extension of time within which to seek leave to appeal against the decision of National Industrial Court sitting at Ibadan, which was delivered on the 26th November, 2012; leave to appeal and extension of time to file the notice of appeal.
The motion which is predicated on eight grounds is supported by a five paragraphs affidavit.
Annexed to the affidavit are the judgment against which the applicants seek to appeal, an enrolment order, a letter addressed to the Governor of Ekiti State and the proposed notice of appeal which are marked exhibits A, B, C and D respectively.
In arguing the application, Mr. Gbemiga Daramola, learned Counsel for the Applicants relied on all the paragraphs of the supporting affidavit and the exhibits thereof, particularly paragraph 4(c), (d) and (e). Learned Counsel emphasized that the only reason for their failure to appeal within the prescribed period is the parties’ involvement in negotiation to settle the matter out of court.
Mr. O. O. Ayenakin, who did not file a counter affidavit, elected to oppose the application on points of law. On this segment of the argument of the learned Counsel for the applicants, learned Counsel submitted that the applicants have failed to set forth in their supporting affidavit good and substantial reasons for their failure to appeal within the prescribed period.
Paragraph 4(c), (d) and (e) of the supporting affidavit provides as follows:-

“4. That I stated thus:-

(c) That the Appellants/Applicants applied to this Hon. Court (within time) for leave to appeal against the judgment which leave was granted on the 15th of February, 2013, the enrolment of Order of this Hon. Court granting leave to the Appellants/Applicants to appeal against the lower court judgment dated 26th of November, 2012 is herewith attached and marked as EXHIBIT B.

(d) That the Respondent sought for the amicable settlement of this appeal out of court which the Appellants/Applicants considered and this necessitated the Appellants/Applicants to put the filing of the Notice of Appeal on hold, Certified True Copy of the letter written by the Respondent’s Counsel dated 2nd March, 2013 is herewith attached and marked EXHIBIT C.

(e) That considering the unfolding events and the circumstances surrounding this appeal, the Appellants/Applicants are of the opinion that parties can no longer settle the appeal out of court.

Application for extension of time to appeal is governed by Order 7 Rule 10(2) of the Court of Appeal Rules 2011 which provides as follows:-

“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard…..”

By the provision of Order 7 Rule 10(2) of the Rules of this Court, it is very clear that an application of this nature is not granted as a matter of course. For an applicant who has come before this court for such equitable relief he must satisfy the requirement of Order 7 Rule 10(2) of the rules of this Court which I have reproduced hereinabove. The requirements contained in Order 7 Rule 10(2) of the Rules of this Court are two fold. They are:-

1. That the supporting affidavit must set forth good and substantial reasons for failure to appeal within the prescribed period.

2. That the grounds of appeal must show good cause why the appeal should be heard.

These twin requirements must co-exist conjunctively or else an application for enlargement of time will not be granted. See: Ibodo & Ors v. Enarogia & Ors (1980) 12 NSCC 195. Ojora & Ors v. Odunsi (1964) 3 NSCC 34; Mobil Oil Nig. Ltd v. Agadaigho (1988) 19 NSCC (Pt. 1) 777.
I have before now highlighted the Applicants’ reasons for failure to appeal within the prescribed period. Even at the risk of repetition, I wish to state that the reasons for failure to appeal within the prescribed period as alluded to by Learned Counsel for the Applicant is that the Respondent approached them and requested for settlement of the case out of Court and that during the negotiation for settlement of the case out of Court, the filing of the appeal for which they had earlier obtained leave was put on hold.
Section 24 (2) (a) and (b) of the Court of Appeal Act has clearly provided the period within which to appeal. For the avoidance of doubt, this Section provides as follows:

“24 (2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision,

(b) in an appeal in criminal cause or matter, ninety days from the date of the decision appealed against.”

CC
The authorities I have considered herein above are matters decided on the Law of statutes of limitation where a party who fails to initiate action within the prescribed period loses his right of action permanently. They equally apply to cases where a party can revive his right of action even where the prescribed period has elapsed. However, negotiation with a view to settling a matter outside the Court cannot operate as a good and substantial reason for failure to appeal within the prescribed period, since an appellant is entitled to withdraw his appeal in event of a successful negotiation. The Applicants herein would have lost nothing if the appeal was filed when the negotiation was on-going. It is therefore my firm view that the Applicants have not set forth good and substantial reasons for failure to appeal within the prescribed period and are therefore not entitled to the exercise of my discretion in their favour on this score.
On the second requirement which is that the grounds must prima facie show good cause why this appeal should be heard, Mr. Ayenakin made extensive submissions on the implications of Section 9(1) of the National industrial Court Act 2006, Section 243 (3) of the 1999 Constitution, 3rd Alteration as amended and concluded that in absence of an Act of the National Assembly, this Court will have no jurisdiction to entertain this appeal which is not bordered on Fundamental Human Right. Since this application can only be granted if the two conditions as enumerated elsewhere in this ruling co-exist, it will be an academic exercise to go into this leg of argument when I have already reached a conclusion that the Applicants have not set forth good and substantial reasons for failure to file their appeal within the prescribed period and are therefore not entitled to the exercise of my discretion in their favour.
On the whole, I find no merit in this application which I hereby dismiss in its entirety.
I make no Order as cost.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading in draft, the lead ruling of my learned brother, Paul Adamu Galinje, JCA just delivered, I agree entirely with his reasoning and conclusion that this application lacks merit and should be dismissed. I also dismiss it and make no order regarding costs.

FATIMA OMORO AKINBAMI, J.C.A.: I was privileged to read in advance the lead Ruling just delivered by my Learned Brother PAUL ADAMU GALINJE J.C.A., I agree with the reasoning and conclusions that there is no merit in this application. I also dismiss same. I abide by the order as to costs.
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Appearances

MR. GBEMIGA ADARAMOLA with him are: Vincent Adedara and O.S. BelloFor Appellant

AND

MR. O. O. AYENAKINFor Respondent