JUTH & ORS v. AMLSN & ORS (2022)

JUTH & ORS v. AMLSN & ORS

(2022)LCN/16969CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 19, 2022

CA/A/437/2016(R)

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. JOS UNIVERSITY TEACHING HOSPITAL 2. THE MANAGEMENT BOARD, 3. JOS UNIVERSITY TEACHING HOSPITAL PROFESSOR EDMUND BANWAT (THE CHIEF MEDICAL DIRECTOR, JOS UNIVERSITY TEACHING HOSPITAL) 4. MR. ALI BITRUS (THE DIRECTOR OF ADMINISTRATION JOS UNIVERSITY TEACHING HOSPITAL) APPELANT(S)

And

1. ASSOCIATION OF MEDICAL LABORATORY SCIENTISTS OF NIGERIA 2. ASSOCIATION OF MEDICAL LABORATORY SCIENTISTS OF NIGERIA (JOS UNIVERSITY TEACHING HOSPITAL CHAPTER) 3. MR. NTUHUN BALA DENNIS (CHAIRMAN, ASSOCIATION OF MEDICAL LABORATORY SCIENTISTS OF NIGERIA, JOS UNIVERSITY TEACHING HOSPITAL CHAPTER, JOS, PLATEAU STATE) 4. MR. BINDE SAMUEL ZWALKUR (SECRETARY, ASSOCIATION OF MEDICAL LABORATORY SCIENTISTS OF NIGERIA, JOS UNIVERSITY TEACHING HOSPITAL CHAPTER, JOS, PLATEAU STATE) RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL FROM THE NATIONAL INDUSTRIAL COURT IS AS OF RIGHT TO THE COURT OF APPEAL

For the avoidance of doubt, Section 243(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:
“An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.”
Section 9(2) of the National Industrial Court of Nigeria Act also provides that appeals from the decision of the Court shall lie only as of right to the Court of Appeal on questions of Fundamental Rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also UGIAGBE V. AG EDO STATE & ORS (2021) LPELR-54861 (CA); SKYE BANK V. IWU (2017) LPELR-42596 (SC). PER SENCHI, J.C.A.

CONDITIONS TO BE FULFILLED FOR THE COURT TO EXERCISE ITS DISCRETION TO GRANT AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL

In any event, before the Court can exercise its discretion to grant this type of application, the Applicant must establish these two basic conditions:
(1) There are good and satisfactory reasons for not filing his or her appeal timeously;
(2) That he or she has good, substantial and arguable Grounds of Appeal.
These two conditions must co-exist. See ROSEHILL LIMITED V. OKPORO VENTURES LIMITED (2005) LPELR-7540 (CA); MOBIL OIL (NIG) LTD V. AGADAIGHO (1988)2 NWLR (PT. 77) 383.
Thus, for an application for enlargement of time to seek leave to appeal, the Affidavit must give sufficient reasons and explanation for the delay; the Applicant must attach the judgment or ruling of the Court against which the Applicant is seeking to appeal and the proposed Grounds of Appeal against the said judgment or ruling. See CBN V. AHMED (2001)11 NWLR (PT. 724) 369 AT 392 PARAS C-E; UNIVERSITY OF LAGOS V. OLANIYAN (NO.1) (1985)1 NWLR (PT. 1) 156; OBIKOYA V. WEMA BANK LTD (1989) 5-7 SC 42. PER SENCHI, J.C.A.

THE POSITION OF LAW WHERE THERE ARE COMPETING APPLICATIONS BEFORE THE COURT

The law is that where there are competing applications before a Court, one seeking to terminate the process and the other seeking to breathe life into the process, the latter will be taken first, though it may have been filed subsequently in relation to the former. See NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (PT. 212) 652 AT 667.
See also A. G. FEDERATION V. AIC LTD & ORS (1995)2 NWLR (PT. 378) 388 AT 397, where the Apex Court held:
“I would have thought that Professor Kasunmu ought to have been aware of the general practice by now, that where in the same case there are two adversely competing Motions before a Court, one constructive and the other potentially destructive, the Court will normally proceed to take the former Motion first, unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter Motion, which will then be withdrawn and struck out accordingly.”
In the case of ENUKEME V. MAZI (2014) LPELR-23540 (CA) or (2015) NWLR (PT 1488) 411, this Court held as follows:
“It is a well-known principle of law and practice that where there are two applications before the Court, one to “kill” the suit by striking it out or dismissing it because of a curable defect, and the other to give life to the case by correcting the defect (if curable), then the Court has to go for the latter and to save the suit, to be heard on the merits. See the case of ANAZONWU V. ILOEGBU (2013) LPELR-21204 (CA); A.G. FEDERATION v. ONIKOYI (2006)18 NWLR (PT. 1010) 57.” PER SENCHI, J.C.A.

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgement): The Appellants/Applicants by way of Motion on Notice filed on the 11th day of February, 2022 are praying this Court for the following:
1. An Order enlarging time for the Applicants to seek leave to appeal against the judgment of the National Industrial Court delivered on the 5th October, 2015 in Suit No. NICN/JOS/8/2014 in terms of Grounds 5, 6, 7, 8, 9, 10, 11 and 12, as per Exhibit JUTH 4, on grounds other than issues bordering on fundamental rights.
2. An Order granting leave to the Applicants to appeal against the judgment of the National Industrial Court delivered on 5th October, 2015 in suit No. NIC/V/JOS/8/2014 in terms of Grounds 5, 6, 7, 8, 9, 10, 11 and 12, of Exhibit JUTH 4, on grounds other than issues bordering on fundamental rights.
3. An Order enlarging time for the Applicants to appeal against the judgment of the National Industrial Court delivered on the 5th October, 2015 in suit No. NICN/JOS/8/2014 in terms of Grounds 5, 6, 7, 8, 9, 10, 11 and 12, as per Exhibit JUTH 4, on grounds, which raise issues other than those bordering on fundamental rights.
4. An Order of this Honourable Court amending the Notice of Appeal to include the new grounds 5, 6, 7, 8, 9, 10, 11 and 12 as per Exhibit JUTH 4, being grounds, which raise issues other than those bordering on fundamental rights, as properly raised and filed.

The grounds upon which the Application is predicated are as follows:
1. The Applicants herein filed a Notice of Appeal against the judgment of the National Industrial Court in Suit No. NIC/V/JOS/8/2014 and amended same via an Order of this Honourable Court made on the 31st March, 2019.
2. The Applicants saw the need to seek leave of this Honourable Court to raise, file and argue additional grounds of appeal in order to meet the justice of this case, hence this application for trinity prayers.
3. This Honourable Court is empowered to grant this application in the interest of justice.
4. This Honourable Court is empowered to enlarge time for the applicants to

In support of their Motion on Notice, the Appellants/Applicants filed a twelve paragraphs Affidavit deposed to by Bitrus D. Ali, the Director of Administration of the 1st Applicant and a Written Address.

In opposition to the Appellants/Applicants’ Motion on Notice, the Respondents filed a twenty-one paragraphs Counter Affidavit on the 16th day of February, 2022, deposed to by Jeremiah Akinniyi, a litigation clerk in the law firm of the Respondents’ Counsel; and on behalf of the Respondents, the learned Counsel filed a Written Address.

On the 18th day of February, 2022, the Appellants/Appellants filed a Reply on Points of Law to the Respondents’ Counter Affidavit of 16th February, 2022.

ISSUES FOR DETERMINATION
In the Written Address filled in support of the Appellants/Applicants’ Motion on Notice, learned Counsel to the Applicants raised a sole issue for determination, to wit:
“From the totality of the facts placed before this Honourable Court, whether the Applicants are not entitled to all the Reliefs sought herein.”

The learned Counsel to the Respondents, in the Written Address filed in support of the Respondents’ Counter Affidavit, raised the following issue for determination:
“Whether the Motion seeking leave to appeal is not incompetent and whether the Court of Appeal has jurisdiction to entertain it and whether the Court of Appeal ought not to dismiss the Motion and the Appeal out-rightly.

ARGUMENTS OF COUNSEL
APPLICANTS’ SUBMISSIONS
At paragraphs 4-17 of the Applicants’ Written Address, learned Counsel to the Applicants submitted to the effect that an application of this nature calls for the exercise of discretion by this Court, and as with all discretionary reliefs, the Court must act judicially and judiciously, taking into consideration all the circumstances of the case, and in accordance with the prescribed Rules of law. He relied on the case of BRAITHWAITE & ORS V. DALHATU (2016) LPELR-40301 (SC). Counsel submitted further that no one decision is binding over the Court in discretionary matters, otherwise, the discretion will be fettered. He relied on the cases of DOKUBO-ASARI V. FRN (2007)12 NWLR (PT. 1048) 320 AT 350. It is the contention of the Applicant’s Counsel that in an application for extension of time to do a thing and for leave to appeal, the Court usually considers the reason for the delay and good and substantial grounds of appeal. He relied on the case of CHIME V. ONWUEGBE (2013)14 NWLR (PT. 1373) 58 and F.H.A. & ANOR V. A. KALEJAIYE (2010) 19 NWLR (PT. 1226) 147. He contended further that in the instant case, Counsel’s inadvertence is the reason for the delay in seeking for leave within time, and this satisfies the first condition considered by the Court in granting this application; and on the second condition, the grounds of appeal of the Applicant raise substantial and good grounds of appeal which the Court ought to consider on the merit. He relied on the case of OPARAUGO V. OPARAUGO (2008)5 NWLR (PT. 1081) 574 AT 594, PARAS E-F.

The Applicants’ Counsel submitted that where the grounds of appeal challenges the jurisdiction of the Lower Court, the reason for the delay in appealing becomes immaterial. He relied on the case of LAFFERI (NIG) LTD V. NAL MERCHANT BANK PLC (2015)14 NWLR (PT. 1478). He submitted further that in the instant case, besides meeting the two conditions for the grant of the application, the Applicant’s Notice of Appeal raises the issue of jurisdiction of the lower Court.

In conclusion, learned Counsel to the Applicants urged this Court to resolve the issue formulated in favour of the Applicants and grant the reliefs sought.

RESPONDENTS’ SUBMISSIONS
At paragraphs 3.01-3.07 of the Respondents’ Written Address, learned Counsel to the Respondents submitted to the effect that this Motion seeking leave to appeal after seven years (since 2015) and after a Preliminary Objection to the appeal has been filed, is an afterthought which is aimed at overreaching the Preliminary Objection in an attempt to infuse life into an incompetent appeal. He submitted further that where leave to appeal is required as a condition precedent to the exercise of jurisdiction and it is not obtained, the appeal is defective and therefore null and void. Thus, this appeal, having been filed without leave of Court is defective, nugatory and incompetent. Learned Counsel relied on the cases of PAGADE CHEMICAL LTD V. N.D.I.C. (2019)2 NWLR PT 1657 P.430 AT 438-439 PARAS H-B; ALHAJI ALMAJIR V. JALBAIT VENTURES (NIG) LTD (2021)15 NWLR PT. 1798 P. 157 AT 172 PARAS D-E; REGISTERED TRUSTEES OF MISSION HOUSE INTERNATIONAL V. ALL STATES TRUST BANK PLC (2021)17 NWLR (PT. 1805) P.275 AT 300 PARAS B-C.

Learned Counsel to the Respondents contended that this Motion which is placed on a defective and incompetent appeal is also defective and void ab initio. He relied on the case of PETGAS RESOURCES LTD V. MBANEFO (2018)1 NWLR P.442 AT 471 PARAS F-G. Counsel contended further that for a Notice of Appeal to initiate an appeal before the Court, it must be fresh and not an amended process, thus the Further Amended Notice and Grounds of Appeal of the Appellant cannot initiate a fresh appeal. Therefore, Exhibits JUTH 3 and JUTH 4 are incongruous with an application of this nature. Counsel submitted that Exhibit JUTH 4 upon which this Motion is predicated is defective and therefore makes this Motion itself incompetent. He relied on the case of PAGADE CHEMICALS LTD V. NDIC (SUPRA) AT 439 PARAS E-F and OGUNPEHIN V. NUCLEUS VENTURE (2019)16 NWLR PT 1699 P. 533 SC AT 559 PARAS C-D.

Counsel submitted that with all the facts before the Court, there is no intention on the part of the Applicants to diligently prosecute the appeal, as they have been indulged in aimless amendments without actually seeking to appeal or prosecute the appeal diligently. He submitted further that the ineptitude of Counsel, rather than mistake of Counsel in this appeal is made manifest by the fact that since 2015, they have been dilly dallying, leading to several Motions without end. He referred this Court to the case of GTB V. EST MASTER CONSTRUCTION LTD (2018)8 NWLR PT 1622 P. 483 (SC) AT 496 PARAS E-H.
In conclusion, learned Counsel to the Respondent urged this Court to dismiss this application for being incompetent.

APPLICANTS’ REPLY
At paragraphs 3-8 of the Applicant’s Reply on Points of Law, learned Counsel to the Applicants submitted to the effect that contrary to the submissions at paragraphs 3.01-3.04 of the Respondents’ Written Address, the Apex Court has on countless occasions, even in the face of a challenge to its jurisdiction, given the other party the opportunity to correct the complaints. He relied on the cases of ANI V. OUT (2017)12 NWLR (PT. 1578) 30 AT 56 PARAS D-E; NALSA & TEAM ASSOCIATES V. NNPC (1991)8 NWLR (PT. 212) 652 AT 667-668 PARAS H-C; SHANU V. AFRI BANK (NIG) PLC (2000)13 NWLR (PT. 684) 392 AT 404 PARAS E-F. He submitted further that contrary to the Respondent’s submission that the Notice of Appeal of 14th December, 2015 was filed without the requisite leave of Court, the appeal was entered within time and the grounds therein are grounds which the Applicants are permitted by law to appeal as of right without leave of Court, since they are issues of fundamental rights and issues bordering on jurisdiction. He referred this Court to Grounds 1, 2, 3, 8 and 9 of Exhibit 2. In response to paragraph 3.06 of the Respondents’ Written Address, Counsel to the Applicants submitted that as far as the Rules of this Court is concerned, the Applicants have met the conditions for the grant of this application as provided by Order 6 of the Rules of this Court and there are substantial points of law or triable issues raised in the appeal, which are sufficient to constitute special or exceptional circumstances warranting the grant of this application. He relied on the case of OPARAUGO V. OPARAUGO (2008)5 NWLR (PT. 1081) 574 AT 594 PARAS E-F. He submitted further that there is nothing wrong with the heading of Exhibit JUTH 4, as it is based on the Applicants’ desire to appeal the judgment of the lower Court in terms of Grounds 5, 7, 8, 9, 10, 11 and 12 of Exhibit JUTH 4 that the application for extension of time becomes necessary and appropriate.

In response to the Respondents’ submissions on the mistake of Counsel, the Applicants’ Counsel submitted that Counsel may commit blunders in the presentation of their Client’s case, but the Courts have been consistent in holding that the litigants should not be made to suffer as a result of the inadvertence of their Counsel. he relied on the case of CHIEF ADEDAPO ADEKEYE & 3 ORS V. CHIEF O.B. AKIN-OLUGBADE (1987)6 SC 182. He submitted further that admittedly, there were errors, mistakes and miscalculations by Counsel in the cause of prosecuting this appeal as regards the Grounds of Appeal, however, same can be corrected by this Court in the interest of justice and without any prejudice to the Respondents.

In conclusion, learned Counsel to the Applicants urged this Court to resolve all issues in favour of the Applicants and against the Respondents.

RESOLUTION
Both the Appellants/Applicants and the Respondents distilled issues for determination in the instant Motion on Notice filed on 11/02/2022. The Appellants/Applicants formulated the following Issue for Determination:
“From the totality of the facts placed before this Honourable Court, whether the Applicants are not entitled to all the Reliefs sought herein.”

The Respondents on the other hand submitted the following sole issue for determination as well:
“Whether the Motion seeking leave to appeal is not incompetent and whether the Court of Appeal has jurisdiction to entertain it and whether the Court of Appeal ought not to dismiss the Motion and the Appeal out-rightly.”

To determine the instant Motion on Notice filed on 11/02/2022, I will and I hereby adopt the sole issue formulated by the Applicants to determine this application, and the Respondents’ issue shall be considered thereunder as well.

The Applicants, at paragraphs 4-12 of their Written Address, learned Counsel submits to the effect that an application of this nature calls for the exercise of discretion by this honourable Court, judicially and judiciously, in granting the discretionary reliefs.

Now, the Reliefs being sought by the Applicants are as stated on the face of the Motion papers earlier mentioned, i.e. an Order enlarging time for the Applicants to seek leave to appeal the judgment of the National Industrial Court delivered on 5th October, 2015 in Suit No. NICN/JOS/8/2014, granting leave to appeal the judgment and an order enlarging time for the Applicants to appeal against the judgment and an order amending the Notice of Appeal to include the new Grounds 5, 6, 7, 8, 9, 10, 11 and 12.

The Grounds upon which the instant application is predicated are:
1. The Applicants herein filed a Notice of Appeal against the judgment of the National Industrial Court in Suit No. NICN/JOS/8/2014 and amended same via an Order of this Honourable Court made on the 31st March, 2019.
2. The Applicants saw the need to seek leave of this Honourable Court to raise, file and argue additional grounds of appeal in order to meet the justice of this case, hence this application for trinity prayers.
3. This Honourable Court is empowered to grant this application in the interest of justice.
4. This Honourable Court is empowered to enlarge time for the applicants to

The Applicants deposed at paragraphs 3-8 (a)-(k) of their Affidavit in Support of the grant of the Reliefs sought in this application. In particular, the Applicants deposed at paragraphs 8(a)-(k) as follows:
a. On the 4th February, 2022, during the weekly review of case files by Counsel in chambers, this appeal was extensively discussed and the case file reviewed.
b. Before the amendment of the notice of appeal of 31st March, 2019, it was unanimous/y agreed by Counsel in chamber that leave be sought to raise and argue additional notice of appeal in terms of grounds 5, 6, 7, 8, 9, 10, 11 and 12, contained in Exhibit JUTH 4.
c. Upon the grant of the application, counsel were under the mistaken belief that the said notice of appeal of 31st March, 2019, included grounds 5, 6, 7, 8, 9, 10, 11 and 12, contained in Exhibit JUTH 4.
d. Still working under the said mistaken belief, counsel proceeded to prepare, argue and file the applicants’ brief of argument containing arguments on the said grounds 5, 6 7 8 9 10, 11 and 12, contained in Exhibit JUTH4.
e. Upon service of the said applicants’ brief of argument on the respondents, counsel to the Respondents rightly raised a preliminary objection to the competence of grounds 5, 6, 7, 8, 9, 10, 11 and 12, contained in Exhibit JUTH 4 same having not being raised without the leave of Court.
f. It is upon careful review of the case file on the 14th January, 2022, when trying to file addresses as ordered by this Honourable Court on the 7th December, 2021, that it was discovered by Counsel that the notice of appeal of 31st March, 2019, did not include grounds 5, 6, 7, 8, 9, 10, 11 and 12, contained in Exhibit JUTH 4 hence becoming needless for the applicants to seek leave to amend the notice of appeal retrospectively.
g. It thus became apparent that what the applicants need is an application for trinity prayers to seek leave to raise and argue grounds 5, 6, 7, 8, 9, 10, 11 and 12, contained in Exhibit JUTH 4.
h. The foregoing has necessitated the need to seek for extension of time and leave to raise and filed the said grounds 5, 6, 7, 8, 9, 10, 11 and 12, contained in Exhibit JUTH 4 and to deem them as properly filed and served
i. Equally too, there is a need to raise and file additional grounds of appeal as per grounds 5, 6, 7, 8, 9, 10, 11 and 12, contained in Exhibit JUTH 4, being grounds not bordering on fundamental rights.
j. The application for trinity prayers to raise and file additional grounds of appeal as per grounds 5, 6, 7, 8, 9, 10, 11 and 12 has become necessary to ensure that the grounds that needed leave are properly fled.
k. The proposed further amended notice of appeal, containing the aforesaid grounds, has been shown to me and same is hereto attached as Exhibit “JUTH 4”

The Respondents in opposing the Application deposed at paragraphs 4-12 of their Counter Affidavit as follows:
4. That I know that the National Industrial Court of Nigeria on 5th October, 2015 delivered judgment in suit No. NICN/JOS/8/2014 in favour of the Respondents.
5. That I know that the Applicants logged an appeal directly at the National Industrial Court Registry, Abuja without leave of the Court of Appeal against the said judgment dated 10th December, 2015 purporting to appeal against the judgment of the National Industrial Court to the Court of Appeal, Abuja Division. The said Notice and Grounds of Appeal is that, exhibited as JUTH 2 by the applicants in the affidavit in support.
6. That based on the purported notice of appeal that the Applicants compiled the record of appeal and transmitted same to the Court of Appeal, Abuja as record of appeal in the matter.
7. That the appeal was entered at the Court of Appeal after the transmission of the record of appeal as No. CA/A/437/2016 was given to it.
8. That based on the purported Notice and Grounds of Appeal the Appellants filed Appellants’ Brief of Argument on 29/9/2016.
9. That the Respondents filed Notice of Preliminary Objection to the appeal on 4/11/2016 to the effect that the appeal is incompetent. That the Notice of Preliminary Objection is annexed and marked Exhibit “ASS 1”.
10. That I know that the subject matter forming the basis of the judgment of the National Industrial Court of 5th October, 2015 is the agitation for the creation of separate department for members of the Association of Medical Laboratory Scientists of Nigeria at Jos University Teaching Hospital, Jos and not anything pertaining to a claim under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or anything relating to Fundamental Human Rights of the Claimants/Respondents.
11. That I know that as a matter of fact, that the subject matter before the National Industrial Court of Nigeria in the said suit No. NIC/V/JCS/8/2014 was a civil matter and fled under the ordinary civil jurisdiction of the Court.
12. That the subject matter of the aforementioned suit was purely civil and NOT CRIMINAL matter at all.

Learned Counsel to the Respondents thereafter submitted at paragraphs 3.02-3.06 of the Respondents’ Written Address to the effect that Appeal No. CA/A/437/2016 filed without the leave of Court is defective, nugatory and incompetent.

Now, I have perused the Applicants’ depositions in their Affidavit in Support of the Application seeking the Reliefs sought and I have equally perused the facts deposed in the Counter-Affidavit of the Respondents. From the Affidavit evidence of both parties in this instant application, there is no dispute that the National Industrial Court in Suit No. NICN/JOS/8/2014 delivered its judgment (Exhibit JUTH 1) on 5th October, 2015. There is also no dispute that the Applicants on 14th December, 2015 filed a Notice of Appeal (Exhibit JUTH 2) against the judgment of the trial Court which Notice of Appeal was amended and deemed properly filed and served on the Respondents on 20th September, 2018 (See Exhibit JUTH 3).

I have perused the Affidavit evidence of both parties in the instant Motion on Notice, as well as the submissions of Counsel in their respective Written Addresses. By paragraphs 5, 10, 11 and 19 of the Counter Affidavit, the Respondents are alleging that the Applicants did not seek leave of this Court to appeal the decision of the National Industrial Court, which decision does not border on matters of Fundamental rights as provided by Sections 243(2), (3) and 254(c) (1) (d) (5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore the Notice of Appeal is incompetent and should be struck out.

Also, as I said earlier, the decision of the trial Court was delivered on 5/10/2015 and the Appellants filed their Notice of Appeal on 14/12/2015 within time, i.e. the original Notice of Appeal.

In the original Notice of Appeal, the Appellants raised nine (9) Grounds of Appeal. I have gone through the nine (9) Grounds of Appeal and Grounds One, Two, Three and Four of the original Notice of Appeal are competent grounds because they border on fair hearing, which falls under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended). For the avoidance of doubt, Section 243(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:
“An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.”
Section 9(2) of the National Industrial Court of Nigeria Act also provides that appeals from the decision of the Court shall lie only as of right to the Court of Appeal on questions of Fundamental Rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also UGIAGBE V. AG EDO STATE & ORS (2021) LPELR-54861 (CA); SKYE BANK V. IWU (2017) LPELR-42596 (SC).
Thus, a close perusal of Grounds 1/ 2, 3 and 4 of the original Notice of Appeal filed on 14/12/2015, and amended by the Order of this Court, the grounds border on fair hearing. In other words, Grounds 1, 2, 3 and 4 of the Amended Notice of Appeal do not require leave of this Court before the Appellants can exercise their right to appeal. I therefore hold the view that the four Grounds of Appeal contained in the Amended Notice of Appeal deemed filed and served on 20/09/2018 are competent Grounds, and this dates back to when the original Notice of Appeal was filed. See Amended Notice of Appeal deemed properly filed and served on 20/09/2018, Exhibit JUTH 3.

It must be noted that contrary to the averments of the Respondents in their Counter-Affidavit and submissions in their Written Address, the Appellants’ Notice of Appeal is competent. Thus, the present application is essentially on the Orders as shown and contained on the face of the Motion on Notice to further amend the Notice of Appeal in terms of Grounds 5, 6, 7, 8, 9, 10, 11 and 12, as per Exhibit JUTH 4, being grounds which raise issues other than those bordering on Fundamental Rights.

The Respondents’ Counsel is of the view that granting the application and the reliefs in particular, that it is an after-thought, would be overreaching the Respondents, considering the length of time when the judgment was delivered. I appreciate the arguments of the learned counsel to the Respondents on this point. However, I am unable to lay my hands on the facts deposed on the Counter-Affidavit as to how the grant of the instant application would affect the interest of the Respondents in the Appellants/Applicants pursuing their right of appeal. In any event, before the Court can exercise its discretion to grant this type of application, the Applicant must establish these two basic conditions:
(1) There are good and satisfactory reasons for not filing his or her appeal timeously;
(2) That he or she has good, substantial and arguable Grounds of Appeal.
These two conditions must co-exist. See ROSEHILL LIMITED V. OKPORO VENTURES LIMITED (2005) LPELR-7540 (CA); MOBIL OIL (NIG) LTD V. AGADAIGHO (1988)2 NWLR (PT. 77) 383.
Thus, for an application for enlargement of time to seek leave to appeal, the Affidavit must give sufficient reasons and explanation for the delay; the Applicant must attach the judgment or ruling of the Court against which the Applicant is seeking to appeal and the proposed Grounds of Appeal against the said judgment or ruling. See CBN V. AHMED (2001)11 NWLR (PT. 724) 369 AT 392 PARAS C-E; UNIVERSITY OF LAGOS V. OLANIYAN (NO.1) (1985)1 NWLR (PT. 1) 156; OBIKOYA V. WEMA BANK LTD (1989) 5-7 SC 42.

A careful perusal of the Applicants’ Affidavit in support of the Application, including the Exhibits attached, at paragraphs (a)—(f), the Applicants deposed to reasons or facts why the delay occurred. The Respondents did not challenge or controvert the averments of the Appellants as contained at paragraphs 5-8 (a)-(f) of the Affidavit in support of Motion on Notice. The depositions of the Respondents as contained at paragraphs 8, 9, 13, 14, 15, 16 and 17 of their Counter Affidavit is not in response to the delay in filing the Motion on Notice to further amend and raise more Grounds of Appeal other than the Grounds that border on Fundamental Rights. Further, notwithstanding the fact that the Respondents filed a Notice of Preliminary Objection as annexed and marked Exhibit A.SS1, there is nothing wrong in the Applicants filing the present application in order to save the proposed additional Grounds of Appeal. The law is that where there are competing applications before a Court, one seeking to terminate the process and the other seeking to breathe life into the process, the latter will be taken first, though it may have been filed subsequently in relation to the former. See NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (PT. 212) 652 AT 667.
See also A. G. FEDERATION V. AIC LTD & ORS (1995)2 NWLR (PT. 378) 388 AT 397, where the Apex Court held:
“I would have thought that Professor Kasunmu ought to have been aware of the general practice by now, that where in the same case there are two adversely competing Motions before a Court, one constructive and the other potentially destructive, the Court will normally proceed to take the former Motion first, unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter Motion, which will then be withdrawn and struck out accordingly.”
In the case of ENUKEME V. MAZI (2014) LPELR-23540 (CA) or (2015) NWLR (PT 1488) 411, this Court held as follows:
“It is a well-known principle of law and practice that where there are two applications before the Court, one to “kill” the suit by striking it out or dismissing it because of a curable defect, and the other to give life to the case by correcting the defect (if curable), then the Court has to go for the latter and to save the suit, to be heard on the merits. See the case of ANAZONWU V. ILOEGBU (2013) LPELR-21204 (CA); A.G. FEDERATION v. ONIKOYI (2006)18 NWLR (PT. 1010) 57.”

On the other hand, I have perused once again the Grounds upon which the application is predicated and the Affidavit in support. The Applicants have sufficiently deposed to the facts as to why the instant application should be granted and that the mistake of Counsel should not be visited on the Appellants/Applicants.

Further, the Further Amended Notice, from the Grounds in terms of the amendment to bring in Grounds other than on Fundamental Rights, appears to raise substantial and good grounds.

Furthermore, the Constitution did not place an embargo as to the length of time that a party should appeal. Where sufficient facts and reasons are given for the delay, as in the instant case, the Court is duty bound to exercise its discretion in favour of the Applicant.

In the instant application, the Applicants deserve the exercise of the Court’s discretion to grant this application. Accordingly, the Motion on Notice filed on 11/02/2022 is hereby granted in terms of prayers 1, 2, 3 and 4.

The Applicants to file clean copies of the Further Amended Notice of Appeal within 7 days from today and same be served on the Respondents’ Counsel.
No award as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the ruling just delivered by my learned brother, Danlami Zama Senchi, JCA.

I am in agreement with the reasoning and the conclusion that this application is deserving of merit. I also find the application meritorious and I abide by all the consequential orders as made in the lead ruling.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity to read the draft of the ruling of my learned brother, Danlami Zama Senchi, JCA, and I agree with the reasoning and conclusion reached therein. I also find the application meritorious and abide by the orders made therein.
I make no order as to costs.