THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS & ANOR v. THOMAS AZEGEJIR & ORS
(2019)LCN/12814(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MKD/200/M/2017(R)
RATIO
APPEAL: APPLICATION FOR LEAVE AND EXTENSION OF TIME
“Where an applicant has taken genuine steps to file an appeal against a decision of Court and an incompetent appeal is filed within time by his counsel or where an incompetent application is brought to extend time to appeal, it is my view that the applicant deserves favourable consideration by the Court in a subsequent and competent application for leave and extension of time to appeal. See Dahuwa v. Adeniran (1993) 2 NWLR (Pt. 277) 580, 587 and Agaka V Oladeji(1999) LPELR 10678.” PER JOSEPH EYO EKANEM, J.C.A.
APPEAL: TWO CONDITIONS FOR AN APPEAL
“The two conditions must be satisfied together at the same time; Isiaka v Ogundimu (2006) LPELR-15S2(SC); Ngere & Anor v Okuruket ‘XIV’ & Ors (2014) LPELR-22883(SC); Minister of Petroleum & Mineral Resources v Expo-Shipping Line (Nig.) Ltd (2010) LPELR-3189(SC). Good and substantial reason may include a special circumstance which is unique, beyond ordinary, regular and or usual circumstance; Akinpelu v Adegbore (2008) LPELR-354(SC).
The applicant need not show that the grounds of appeal will ultimately succeed. All he is required to prove is that the grounds of appeal prima facie show good cause why the appeal should be heard. In Braithwaite v Dalhatu (supra) the Supreme Court, per Kekere-Ekun, JSC, at pages 28 -29 of the E-Report cited with approval the earlier case of Obikoya v Wema Bank Ltd (1989) 1 NWLR (PT 96) 157, where Oputa, JSC held thus: ‘A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact or law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground which evokes serious debate about the correctness of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous.'” PER ONYEKACHI AJA OTISI J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. THE NIGERIA SECURITY AND CIVIL DEFENCE CORPS
2. THE COMMANDANT GENERAL, NIGERIAN SECURITY AND CIVIL DEFENCE CORPS Appellant(s)
AND
1. THOMAS AZEGEJIR
2. EZEKIEL OCHE TIMOTHY
3. ISAAC AZA
4. OLOCHE ROSEMARY
5. KANSHIO JATO
6. JAMES A. DAM
7. BABA OCHOKWUNU
8. YAKUBU SULE
9. KUMAGA Z. MTIM
10. DZEGEVANDE AESE
11. SUNDAY OLOCHE
12. VAATYOUGH EZEKIEL I.
13. GWAMILE B. DEMENENGE
14. MONGOL JAPHET T.
15. ONOGUL BENEDICT
16. TYOAKA T. DANIEL
17. AFADA SABO
18. MOSES MBANONGUN
19. AGHA OGBONNA
20. ASOM TERTUSUA
21. UJAH PETER ADANU
22. GUMA BLESSING
23. NUMBU BENJAMIN
24. MBACHILIN OBASANJO
25. ADEMEKU T. GABRIEL
26. TAGA TITUS
27. KUJE NICHOLAS
28. ALEXANDER TYOZER
29. IORGANDE MATTHEW
30. IORGANDE MATHIAS
31. ADAME ABEL
32. PINE SIMON I.
33. SHINSHIMA EDWARD
34. ESTHER EBIJE
35. OJABO M. OJOH
36. ASHIEKAA DANIEL
37. OGBOLE SUNDAY
38. ELAIGWU ABRAHAM
39. ADAH JOHNSON
40. MUSA SUNDAY
41. ATENYI ABEL
42. OYISHOMA NOAH
43. OGBOCHE THERESA
44. DANIEL ADIKWU
45. TIMOTHY MARTHA OCHE
46. IKWULONO B. ABOJE
47. NEJI KENNETH
48. TIVKAA U. JAPHET
49. AMA T. FESTUS
50. MBAHAM BENJAMIN
51. ALECHENU MARY
52. RAYMOND UGBAGIR
53. DAVID HELEN
54. WECHIYNA T. EVELYN
55. IKEYEREVE VINCENT
56. AERAKPE M. HILIFAN
57. OTENE AKOR PETER
58. EGBOGO EUNICE
59. OGWUCHE JOHN
60. AFIR JEREMIAH
61. MOM AODONA
62. ENOBONG E. TOMMY
63. AJUMA RUTH SALIFU
64. ISAAC ABRAHAM
65. CATHERINE T. KYAAN
66. AUDU LIKITA
67. ALEXANDER CHAFU
68. BASHI A. JOSEPH
69. AJIH U. JOHNSON
70. SOLOMON NENGESE
71. AGEH O.CHRISTOPHER
72. DANLAMI M. ADAGONYE
73. KILAKAAN JOSEPH I.
74. ALEXADER AYUA
75. STEPHEN SHAAKAA
76. SAAWUAN IVEREN
77. GBAEREN N. IGNATIUS
78. INYOM T. TIMOTHY
79. SHAAPERA JOSHUA
80. ENOYI E. BLESSING
81. AIUME TERLUMUN
82. EMMANUEL AKEKU
83. ADAJU JONAH
84. OCHOHEPO K. BENJAMIN
85. ALECHENU OCHOWECHI
86. SHIMA A. HARRISON
87. ENECHE O. AHMODU
88. IBRAHIM YAHAYA
89. AHILO PETER
90. JONATHAN ONECHI
91. ELAIGWU O. LUKE
92. AMECH J. NWOKO
93. ANIWEN M. NYILUMUN
94. SAAR TERNA
95. SAMUEL AERNYI
96. AMIR PHILIP ADZUA
97. IERVE A. BENJAMIN
98. EBIJA ANN OJOMA
99. ABU OBEIYE
100. PINGA TERKIMBI
101. SOLOMON ADIKWU YUSUF
102. KON TERVER
103. ANZO A. DANIEL
104. USU ANANDE PETER
105. MKAR MANASSEH
106. IORKYAA T. AMOS
107. OLIVER VAV TYOUER
108. OBIABO JOHN
109. ALOME A. ABRAHAM
110. UPU THERESA
111. AONDO DOMINIC
112. EKOJA JEREMIAH
113. IJACHE THERESA
114. JOHN M. YASHI
115. ISAAC HEMBAOR
116. ISAAC ADEYI
117. ATETAN SESUGH
118. EMMANUEL O. ACHEGBANI
119. SHIE E. SENEGE
120. ITODO JOSHUA
121. EMMANUEL BLESSING
122. MATHIAS NGBEDE
123. CHRISTIAN E. ACHELIGWU
124. GABRIEL ADEYI
125. AKPA A. ABIGAIL
126. DAVID JULIUS
127. GABRIEL MERCY
128. EKOJA PETER IDENYI
129. EGBE JOHN
130. ADAJI A. RUTH
131. AMEH IDU SUNDAY
132. ABIDU FELIX
133. ATTAH TITUS
134. OBIABO YAKUBU
135. OCHE OJIMA
136. EKOJA ALADE
137. ALI PETER
138. SALISU BATHOLOMEW
139. AWODI S. ENECHE
140. OCHEIGQU OCHOHEPO
141. EMMAIKWU J. ADOYI
142. ANYEBE J. STELLA
143. AKOR M. ABOR
144. OCHEPO EDOH P.
145. GABRIEL IGBE
146. OTUKPA PHILIP
147. EDWIN ADIKWU
148. GODWIN LINDA
149. ADAH GLORIA
150. AKUME FRANCIS M.
151. SENDE HEMBAFAN
152. MATHIAS ABU
153. SOOM CATHERINE H.
154. DAVID ASEN
155. MAGAJI GODIYA
156. ISAH ABUBAKAR
157. AGABA LUCKY ADAGEHE
158. ALEDU BENJAMIN
159. ABOH S. ABICHE
160. ISHALU OGWUCHE
161. ABUBAKAR I. STEPHEN
162. ROSEMARY ENUMAJE
163. ALIYU RAMATU
164. BABA OGWOLA
165. PETER NGBEDE
166. PETER OGAH
167. GRACE A. UKWENYA
168. EMMANUEL GABRIEL
169. IKAKA J. BENJAMIN
170. SHAIBU IBRAHIM
171. SULEMAN MOHAMMED
172. OTACHE SUNDAY
173. EJEH SOLOMON EGBOJAH
174. ELIAS IFUJAYE
175. OLAGBEWO A. JOHN
176. PETER ECHEWIJA
177. MOHAMMED OCHIDOMA
178. RAKIYA MUSA
179. ECHODA ONYEMOWO
180. IJEWECHE YUSUF
181. ANYEBE O. ADEKA
182. SHAIBU AMINU
183. IMANCHE OBIABO
184. ABU STEPHEN
185. ICHOJA A. NGEDE
186. OGWOLA ANKELI
187. MUSA MATTHEW
188. ODOBA NGBEDE
189. IBRAHIM NOAH
190. PETER O. OGIENE
191. AUDU OYAJE
192. ONEHI J. YUSUF
193. VEHEN B. TERDOO
194. IAREN AUVA
195. AKILE CLEMENT
196. ICHIN EMMANUEL
197. PETER BLESSING
198. SUNDAY FRIDAY PTE
199. IGAYU CLETUS PTE
200. ATSER M. MOSES PTE
201. KILE ADAMU PTE
202. OCHEJE BENJAMIN PTE
203. AGAYA AUGUSTINE PTE
204. DOOIOR TO. BENJAMIN PTE
205. AULE U. UTO PTE
206. ORDUEN JOSEPH PTE
207. EKOJUA JAMES PTE
208. IYORTYER ABRAHAM T. PTE
209. TERKIMBI GODWIN PTE
210. IORKEGH TERSUGH PTE
211. ORGEM STEPHEN M. PTE
212. TORKUNDE MOSES PTE
213. OCHEIYO S. TIMOTHY PTE
214. ABOGO SAMUEL PTE
215. ONUKWU GRACE PTE
216. OBOCHI JAMES PTE
217. ROSE EHE EIGEGE PTE
218. OCHECHE VERONICA PTE
219. ACHEME B. ODOBA PTE
220. WAYAS A. GBAMUAN PTE
221. YANDUEN TORDUE PTE
222. GISA EMMANUEL PTE
223. ANDREW TSENEER PTE
224. AGIRI F. OGBU PTE
225. TUGUDU JOHN PTE
226. AMODU FRIDAY PTE
227. IKWULONO STEPHEN O. PTE
228. OCHOYODA NOAH PTE
229. GODWIN T. ANYAMHUL PTE
230. OTOKPA FRIDAY PTE
231. DORCAS R. MATTHEW PTE
232. GRACE L. ONYEKE PTE
233. AMEH BARTHOLOMEW PTE
234. MENDEGH ISAAC Y. PTE
235. ANDE FELIX PTE
236. ZAAYEM A. GADIN PTE
237. ACHIN STEPHEN PTE
238. HARNONGUN PIUS PTE
239. TOMMY O. SUNDAY PTE
240. OWOICHO A. JONAH PTE
241. ABAJI EMMANUEL SHAMMAH PTE
242. GIRIM MOSES PTE
243. SOLOMON P. UTTAH PTE
244. SOLOMON D. AWACHU PTE
245. ISAAC SOLOMON PTE
246. OTACHE E. ANDREW PTE
247. IFUYAJE SALIFU PTE
248. EJEH GODWIN PTE
249. DANIEL ELIZABETH PTE
250. EJIJI SUNDAY PTE
251. ADU MUSA PTE
252. OCHEFIJE JOHN PTE
253. OCHOYODA NDBEDE PTE
254. ELAIGWU SAMUEL PTE
255. ISAH EHODA PTE
256. ONUMINYA A. INALEGWU PTE
257. SAMUEL E. ECHE PTE
258. RICHARD SHOGODO PTE
259. AKIGHIR GLADYS PTE
260. ISAH ALIYU PTE Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated and filed on 11/7/2017, the applicants pray for the following reliefs:
1. AN ORDER OF THIS HONOURABLE COURT Extending time for the Applicants within which to seek leave to appeal against the judgment of the National Industrial Court of Nigeria, Makurdi Judicial Division delivered on 22nd September, 2015 by Honourable Justice R.B. Haastrup in Suit No. NICN/MKD/29/2014.
2. AN ORDER OF THIS HONOURABLE COURT Granting leave to the Applicants to appeal against the judgment of the National Industrial Court of Nigeria, Makurdi Judicial Division delivered on 22nd September, 2015 by Honourable Justice R.B. Haastrup in Suit No. NICN/MKD/29/2014.
3. AN ORDER OF THIS HONOURABLE COURT Extending time for the Applicants within which to file their Notice of Appeal against the Judgment of the National Industrial Court of Nigeria, Makurdi Judicial Division delivered on 22nd September, 2015 by Honourable Justice R.B. Haastrup in Suit No. NICN/MKD/29/2014.
4. ANY ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances of the Applicants?.
The application is erected on the following grounds:
1. The National Industrial Court of Nigeria, Makurdi Division delivered Judgment against the Applicants among other parties on 22nd September, 2015.
2. Immediately after the said Judgment, the Applicants instructed Bola Odugbesan, Esq. to lodge an appeal against same.
3. That in view of the nature of the lower Court’s judgment vis–vis the provision of Section 243(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the Applicants cannot appeal to the Court of Appeal as of right but with leave of Court.
4. That pursuant to the instructions mentioned in (2) above, the Counsel on 1st December, 2015 filed an application before this Honourable Court for leave to appeal against the said Judgment which application is still pending before the Court and yet to be heard.
5. That the same Counsel (Bola Odugbesen, Esq.) also on 1st June, 2016 filed another application before this Honourable Court for leave to appeal against the said Judgment which application is also pending before this Honourable court yet to be heard.
6. That by letters dated 28th April, and 3rd May, 2017 respectively, the Applicants instructed Messrs. A.U. Mustapha, SAN & Co to take over prosecution of both the Appeal and the pending proceedings at the National Industrial Court of Nigeria.
7. That pursuant to the instructions of the Applicants mentioned in (6) above, the firm of A.U. Mustapha, SAN & Co on 16th May, 2017 filed a Notice of Change of Counsel before this Honourable Court and same was served on all the parties.
8. Upon careful perusal of the entire documents made available to the firm of A.U. Mustapha, SAN & Co, it came to light that there is the need to file this application with a view to focusing more on the issues involved in the appeal.
9. That the time allow by the relevant provisions of the 1999 Constitution to file, seek and obtain leave to appeal against the said Judgment had since expired.
The application is supported by:
(i) an affidavit of 12 paragraphs deposed to by Mrs O.A. Salako, Deputy Director/Legal Adviser in the 2nd applicant; with four exhibits attached to it;
(ii) a further affidavit of 8 pages deposed to by Valentine Francis, Litigation Secretary in the law firm representing the applicants, A.U. Mustapha (SAN) & Co;
(iii) a written address in support of the motion filed on 2/10/2018 on the order of Court; and
(iv) a reply on points of law filed on 5/10/18.
The respondents in opposing the application filed:
(i) a counter – affidavit of 13 paragraphs deposed to by Ezekiel Oche Timothy, the 2nd respondent, filed on 24th September, 2018; and
(ii) a written address filed on 8/10/2018.
When the application came up for hearing on 21/1/2019, Mustapha Baba Tafarki, Esq., of counsel for the applicants, referred to and relied on the processes filed on behalf of the applicants in moving the Court to grant the application.
A.A. Sule, Esq. for the respondents referred to and relied on the processes filed on behalf of the respondents in urging the Court to refuse the application. He referred to the case of Petgas Resources Ltd V Mbanefo (2018) 8 NWLR (Pt. 1601) 442, 471.
Applicants’ counsel in his reply objected to the process filed on 8/10/2018.
In his address, counsel for the applicants raised two issues for the determination of the application, viz;
1. Whether this Honourable Court has jurisdiction to entertain the applicants? complaints as ventilated in the proposed notice of appeal (Exhibit Salako – 5) attached to the supporting affidavit to have warranted filing of the motion
2. If answer to the 1st issue is in the affirmative, whether the applicants provide sufficient materials to warrant the grant of the prayers in the motion paper.
In respect of issue 1, counsel submitted that the right of appeal is a constitutional right. He referred to Section 243 (1), (2), (3) and (4) of the Constitution of Nigeria, 1999 (as amended). He further submitted that appeals from the National Industrial (NIC) shall lie as of right only in cases where it relates to questions of fundamental rights. In other cases, he added, leave of this Court is required. He placed reliance on several cases including Skye Bank Plc v Iwu (2017) LPELR 42595 (SC).
With regard to issue 2, he re – stated that the decision sought to be appealed against is a decision of the NIC delivered on 22/9/2015. He stated that the applicants are out of time and require leave of this Court. He referred to Section 24 of the Court of Appeal Act and Order 6 Rule 9 of the Court of Appeal Rules. He submitted that this Court has the discretion to grant the application upon there being (i) substantial reasons for the failure to appeal within time and (ii) grounds of appeal which prime facie show good cause why the appeal should be heard. He, in essence, submitted further that applicants have satisfied both conditions.
In his address, respondents? counsel stated that the sole point of their opposition to the application is whether upon the striking out of the notice of appeal in Appeal No. CA/MK/142/2015 for want of competence and similar applications for leave to appeal out of time, this Court can still entertain the application. Counsel submitted that ‘Stinting’ away this application from the file of CA/MK/142/2015 which he termed as ‘the principal appeal’ which has been struck out along with another application for leave to appeal in no way affects the order of this Court striking out the appeal with its attendant consequences. He referred to and relied on Aroyewun v Adebanji (1976) 11 &12 SC 21. He contended that having struck out the notice of appeal for want of competence, this Court can no longer take any interlocutory injunction based on the same.
Let me quickly state that I do not see the relevance of the last submission of respondents’ counsel to the application under consideration. This application is not an application for interlocutory injunction. I therefore discountenance the submission for not only being irrelevant but also for being a red herring.
In his reply, applicants’ counsel submitted that appeal No. CA/MK/142/2015 had been struck out and so there was no principal appeal. He further submitted that striking out an application does not in law bar the re-listing of the same or re-filing a fresh application. He placed reliance on NDIC v Okeke (2010) 10 LPELR 4597 (CA). He argued that the case of Aroyewun v Adebanji supra. cited by respondent?s counsel has no bearing on the issue at hand.
In determining the application, I shall first treat the submission of counsel for the respondents that this Court having struck out Appeal No. CA/MK/142/2015 and earlier applications for leave to appeal, can no longer entertain this application. With the greatest respect to counsel for the respondents, I think that nothing can be farther from the position of the law.
Let me quickly say here that though the orders of the Court striking out the processes have not been exhibited by the parties, yet since the orders are not disputed by the parties, but are admitted by them, the Court will not doubt the existence of the orders. See Attorney-General of Rivers State V Attorney – General of Akwa Ibom State (2011) 8 NWLR (Pt. 1428) 31, 128 – 129.
It is common ground between the parties that an appeal had earlier been purportedly filed against the judgment of NIC in Suit No. NICN/MKD/29/2014 delivered on 22/9/2015. Still common ground between the parties is the fact that two applications for leave to appeal against the same judgment out of time were also brought earlier on 1/7/2016 and 23/1/2017. All those processes were struck out, id est, the purported appeal, and the two motions for leave to appeal, were struck out by this Court on 17/9/2018 for being incompetent and for want of diligent prosecution, respectively. What is left regarding the judgment of the NIC in Suit No. NICN/MKD/29/2014 is the present application.
What is the effect of striking out a process including a notice of appeal. In the case of Panalpina World Transport (Nig) Ltd. v J. B. Olandeen International (2010) 19 NWLR (Pt. 1226) 1, 20 Adekeye, JSC, stated as follows:
When an order is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even when an order of dismissal is made following a hearing which is not based on the merits, such an order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is liberty to relist. The simple explanation is that while the matter is discontinued as from that date, it is till (sic; still) alive and kept in the Court’s general cause list and can be bought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relis.
This same procedure is open to an applicant whose motion has been struck out. He can either file a fresh motion or bring an application to relist it which option depend on the circumstances that led to the striking out of the motion or the nature of the order made. Where there was an attack on the contents of such motion made prior to it being struck out a fresh application must be filed. A motion brought under the prerogative jurisdiction of the Court which is struck out can be refiled and brought before another Judge of the same jurisdiction. That is legally approved.
In Registered Trustees Ifeloju Friendly Union v Kuku (1991) 5 NWLR (Pt. 189) 65, 78 Tobi, JCA (as he then was) opined that, ‘In general practice, if a matter is struck out from the cause list, a plaintiff is invariably at liberty to revive it at any time for good.’ See also Dingyadi v INEC(No. 2) (2011) 18 NWLR (Pt. 1224) 154, 189 – 190.
The following position emerges from the foregoing:
(1) Where a matter or an application is struck out, having not been heard on the merits, or where it is dismissed but not on the merits, there is liberty to relist the same upon the order of Court or liberty to file a fresh matter or application.
(2) Where a motion has been struck out, the applicant can either file a fresh motion or bring an application to relist the same depending on the circumstances that led to its being struck out or the nature of the order.
(3) Where there was an attack on the content of the motion prior to its being struck out, a fresh application must be filed.
(4) A motion brought under the prerogative jurisdiction of the Court can be refiled and brought before another judge of the same jurisdiction.
As earlier stated, the notice of appeal in Appeal No. CA/MK/142/2015 was struck out on 17/9/2018 for being incompetent. The two earlier motions for leave to appeal were also struck out on the same date for want of diligent prosecution. The notice of appeal having only been struck out for being incompetent, the only option open to the applicant is to file or seek to file a fresh notice of appeal, with the incompetence cured. The two earlier motions for leave to appeal having been struck out and not dismissed for want of diligent prosecution, the applicant was also at liberty to file a fresh application for leave to appeal. This is because the applications were not determined on the merits nor was any of them struck out with an additional order that it could not be refiled. See NDIC v Okeke supra and Akpan v Ekpo (2001) 5 NWLR (Pt. 707) 502, 512.
The cases cited by respondent’s counsel to buttress his position are of no relevance to the matter at hand. The case ofAroyewun v. Adebanji supra as rightly pointed out by applicant’s counsel involved the striking out of an appeal because prior leave to appeal was not obtained as required. In the case of Uwazuruike v Attorney -General of the Federation supra. the notice of appeal was struck out by the Court of Appeal because it was a joint notice of appeal in a criminal appeal signed by counsel. On appeal to the Supreme Court, the apex Court observed that appellant’s counsel should have got appellants to sign and file separate notices of appeal. This in fact confirms the position I have taken above on the point under consideration.
The sole point on which the respondents opposed the application therefore is without substance. I therefore discountenance it.
I shall now consider the merit of the application.
Section 243 (1) (b) of the Constitution of Nigeria, 1999 (as amended) provides that
‘(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be: –
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.?
By Section 24(2) (a) of the Court of Appeal Act (as amended) the period for giving notice of appeal or notice of application for leave to appeal in a final decision in a civil cause or matter is three months (from the date of the final decision). In this instance, the final decision sought to be appealed against is a decision of the National Industrial Court and none of the grounds of appeal in the proposed notice of appeal raises an issue of fundamental right guaranteed in Cap. IV of the Constitution of Nigeria. On the authority of Section 243(2) of the Constitution and Skye Bank Plc v Iwu (2017) 16 NWLR (Pt. 1390) 24, the appeal must be with the leave of this Court.
The application under consideration was filed on 11/7/2017, i.e. about two years after the final decision was delivered.
Where the law requires that an appeal shall be only with leave of Court, as in this instance, the application for leave to appeal must be filed within the time prescribed for the filing of the appeal. Where the time expires, a party intending to appeal must bring the trinity prayers to be able to appeal against the judgment, viz;
(1) Extension of time to apply for leave to appeal
(2) Leave to appeal.
(3) Extension of time to appeal.
Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 provides
(2) 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 prime facie show good cause why the appeal should be heard
For an application for extension of time to apply for leave to appeal and extension of time to appeal to be granted, the application must show.
(i) Good and substantial reasons for the failure to appeal within time; and
(ii) Grounds of appeal which prime facie show good cause why the appeal should be heard. See Ibodo v Enarofia (1980) 5 – 7 SC 28, Ukwu v Bunge (1997) 8 NWLR (Pt. 518) 527 and Ngere v Okuruket ‘XIV’ (2014) 11 NWLR (Pt. 1417) 147.
‘Good reason’ is satisfactory reason which is in favour of the applicant’s case. It is also a useful and suitable reason. A substantial reason is any important and material reason. See National Inland Waterways Authority v Shell Petroleum Development Corporation (2008) 13 NWLR (Pt. 1103) 48, 65.
In an application of this nature, two instances of delay are involved, both of which must be explained, viz;
(a) the reason why the applicant could not appeal within time statutorily allowed for appeal; and
(b) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal. See Enyibros Foods Processing Co. Ltd v NDIC (2007) 9 NWLR (Pt. 1039) 216, 239.
I have already stated that the application was filed on 11/7/2017 but the judgment sought to be appealed against was delivered on 22/9/2015. Why did the applicants not appeal within time. Why did they not file the application within time. From the affidavit in support of the application, the following uncontroverted and therefore true facts emerge:
(i) On 1/12/2015, B. Odugbesan, Esq. on applicants’ instructions filed an application for leave to appeal and on 1/6/2016, he also filed another application for leave to appeal.
(ii) On 28/4/2017 and 3/5/2017 A. U. Mustapha (SAN) was instructed by the applicants to take over the matter.
(iii) On 11/7/2017, the Chambers of Mustapha (SAN) filed the instant application;
(iv) The delay between 28/4/2017 and 3/5/2017 when instructions were given to Mustapha (SAN) and 11/7/2017 when this application was filed was because the firm of Mustapha (SAN) and Co. was waiting for the Supreme Court’s decision on the case stated to it by this Court on the then controversial issue of the right of appeal against decisions of the NIC.
I am satisfied that the reasons given for the delay in filing notice of appeal and bringing this application are good and substantial. It can be seen that before the expiry of time to appeal, applicants filed the first motion for extension of time to appeal, showing a desire plus effort to appeal against the decision of the NIC timeously. The reason that Mustapha (SAN) & Co. was waiting for the decision of the Supreme Court in the case that was stated to it by this Court is a satisfactory, suitable, important and material reason.
It must be admitted that there were conflicting decisions of this Court as to whether there is a right of appeal with leave against a decision of the NIC in a matter that is not criminal or which does not raise question/s of fundamental rights as contained in Chapter IV of the Constitution as it relates to matters upon which that Court has jurisdiction.
The order of this Court stating the case to the Supreme Court was made on 11/11/2014 and the decision of the Supreme Court thereon was given on 30/6/2017 and is reported as Skye Bank Plc v Victor Anaemem Iwu (2017) 16 NWLR (Pt. 1590) 24. While the decision of the Supreme Court was delivered on 30/6/2017, the application under consideration was filed on 11/7/2017, id est, about 11 days after the decision of the Supreme Court. I think Senior counsel for the applicants should be commended for being able to file the application so soon after the decision of the Supreme Court.
Where an applicant has taken genuine steps to file an appeal against a decision of Court and an incompetent appeal is filed within time by his counsel or where an incompetent application is brought to extend time to appeal, it is my view that the applicant deserves favourable consideration by the Court in a subsequent and competent application for leave and extension of time to appeal. See Dahuwa v. Adeniran (1993) 2 NWLR (Pt. 277) 580, 587 and Agaka V Oladeji(1999) LPELR 10678.
It is therefore my view that the applicants have shown good and substantial reasons for the failure to appeal within time.
As regards the proposed grounds of appeal, I have examined them vis – a vis the certified copy of the decision sought to be appealed against. They seem to me to be arguable. I cannot at this stage consider their merits.
In Anachebe v Ijeoma (2014) 14 NWLR (Pt. 1426) 168, 185 the Supreme Court held that the duty of the Court is limited to ensuring whether the grounds of appeal are arguable, and that duty does not extend to deciding their merits. It is therefore my view that the proposed grounds of appeal prima facie show good cause why the appeal should be heard.
On the whole, I come to the conclusion that the application has merit. I accordingly grant the same as prayed. The applicants are to file their notice of appeal within 14 days of today’s date.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Ruling just delivered by my Learned Brother, Joseph Eyo Ekanem, JCA, in determination of the application of the Applicants seeking orders of this Court, upon the trinity prayers, to appeal against the judgment of the National Industrial Court (NIC) delivered on 22/9/2015 in suit No NICN/MKD/29/2014.
The grant of an application for enlargement of time within which to appeal is an exercise of judicial discretion which must be based on principles of law. The Court must act judicially and judiciously, taking into account all the circumstances of the case and in accordance with the prescribed rules of law; Braithwaite v. Dalhatu (2016) LPELR-40301(SC); Yesufu v Co-operative Bank Ltd (1989) LPELR-3522(SC).
By virtue of the provisions of Section 243(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and of Section 24(2)(a) of the Court of Appeal Act (as amended), the Applicants required leave of this Court to appeal against the final judgment of the NIC. The instant application was brought about two years out of time. By the provisions of Order 6 Rule 9(2), Court of Appeal Rules, 2016, for an application for extension of time within which to appeal to succeed, the applicant must show:
1. Good and substantial reasons for failure to appeal within the prescribed period, and;
2. The grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions must be satisfied together at the same time; Isiaka v Ogundimu (2006) LPELR-15S2(SC); Ngere & Anor v Okuruket ‘XIV’ & Ors (2014) LPELR-22883(SC); Minister of Petroleum & Mineral Resources v Expo-Shipping Line (Nig.) Ltd (2010) LPELR-3189(SC). Good and substantial reason may include a special circumstance which is unique, beyond ordinary, regular and or usual circumstance; Akinpelu v Adegbore (2008) LPELR-354(SC).
The applicant need not show that the grounds of appeal will ultimately succeed. All he is required to prove is that the grounds of appeal prima facie show good cause why the appeal should be heard. In Braithwaite v Dalhatu (supra) the Supreme Court, per Kekere-Ekun, JSC, at pages 28 -29 of the E-Report cited with approval the earlier case of Obikoya v Wema Bank Ltd (1989) 1 NWLR (PT 96) 157, where Oputa, JSC held thus:
“A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact or law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground which evokes serious debate about the correctness of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous.”
Each application is however determined on its own peculiar facts and circumstances;Ikenta Best (Nig.) Ltd v AG, Rivers State (2008) LPELR-1476(SC), (2008) 2-3 S.C. (Pt 1) 1. The length of delay in bringing the application is immaterial so long as good and substantial reason justifying it is proffered; Yesufu v Co-Operative Bank Ltd (supra).
The reasons proffered by the Applicants for the delay in bringing this application, as meticulously pointed out in the lead Ruling, were not frivolous. I agree that the contentions
22
of the Respondents against the grant of this application are without substance and must be discountenanced.
There is merit in this application. The Applicants have shown good and substantial reasons for their failure to appeal within time and the grounds of appeal, prima facie, show good cause why the appeal should be heard. I also allow the application and abide by the orders made in the lead Ruling.
JOSEPH TINE TUR, J.C.A.: (DISSENTING) I have read an advance copy of the determination of the application filed by the applicants as proffered by my learned colleague, Ekanem, JCA, titled ‘Ruling’. I am entitled to render the ‘determination’ of the application/appeal under Sections 294(1)-(3) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
With the coming into effect of the Constitution on 29th May, 1999 every ‘determination’ of a dispute or a controversy is a ‘determination’ an ‘opinion’ or a ‘decision’ within the contemplation of Section 318(1) of the Constitution. A ‘Ruling’ is expressly omitted or is not defined in the provisions of Section 318(1) of the Constitution.
The jurisdiction of Courts below to hear and determine the civil rights and obligations of litigants is provided in Section 36(1) of the Constitution in the following manner:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Those who enacted the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999 conferred express jurisdiction on ‘Every Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality’ to ‘determine’ the civil rights and obligations, including any questions for determination by or against any government or authority under Section 36(1) of the Constitution.
Section 36(1) of the Constitution should be read together with the provisions of Section 294(1) of the Constitution which provides thus:-
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
The intention of the legislature is that jurisdiction should be conferred on Courts that hear evidence and rely on final addresses to render their ‘decisions’ or to ‘determine the civil rights and obligations’ of the litigants in writing not later than ninety days after the conclusion of evidence and final addresses A breach of the provisions is to be remedied under Section 294(5)-(6) of the Constitution and Order 4 Rule 9(1)-(4) of the Court of Appeal Rules, 2016. The two provisions read as follows:-
294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non- compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
(b) reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.
The intention of the National Assembly is that each Justice of the Supreme Court and the Court of Appeal Justices is to each express in writing an ‘opinion’ or a ‘decision’ without prescribing any time frame as provided in 294(1) of the Constitution. The ninety days prescribed in Section 294(1) of the Constitution is omitted in Section 294(2) of the Constitution. Section 294(2) of the Constitution should be read together with Section 315(4)(1)(c) of the Constitution which defines ‘modification’ to include ‘repeal’, ‘omission’, ‘addition’, alteration, etc. See Attorney-General of Anambra State vs. Attorney-General of the Federation (1993) 7 SCNJ (Pt.2) 265 per Ogundare, JSC at page 375.
?The conclusion to arrive at is that a ‘Ruling’ and an ‘interlocutory decision or order’ have undergone modification and have been omitted from the provisions of Section 36(1), 294(1)-(6) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered from the commencement of the Constitution on 29th May, 1999.
In Maxwell On the Interpretation of Statutes, 12th edition by P. St. J. Langan, pages 1-3 and 33 provides as follows:-
And in so doing it must bear in mind that its function is jus dicere, not jus dare; the words of a statute must not be overruled by the judges, but reform of the law must be left in the hands of parliament.
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: ‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’ ‘We are not entitled,’ said Lord Lorebun, L.C., ‘to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.’ A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
The Latin Maxim that covers the situation under discussion is ‘Expressio unius exclusio alterius’ which has been explained and applied by the Supreme Court in a plethora of decisions, namely:- Udoh & 2 Ors. vs. Orthopaedic Hospitals Management Board & 1 Ors. (1993) 7 SCNJ (Pt.2) 436 at 443 per Karibi-Whyte, JSC; A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646; Ogbunyiya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.
The jurisdiction of every Court or other tribunal to hear any dispute pertaining to the civil rights and obligations of the litigants whether in Courts or other tribunals established by law under Section 36(1) and 294(1) or by the Supreme Court or the Court of Appeal under Section 294(2)-(5) of the Constitution is limited to the adjudicating Court or other tribunal established by law to render a ?decision? that has ?determined? the dispute or controversy within the contemplation of Section 318(1) of the Constitution. To ?determine? a dispute or a controversy, and the word
‘determination’, or ‘determined’, etc, have been construed by the Supreme Court in Deduwa vs. Okorodudu (1976) 1 NMLR 236, Alexander, C.J.N. held at pages 243-244 to wit:-
‘More light is thrown on the meaning of the words ‘decision’ and determination’ in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ‘We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ‘a bringing or coming to an end’ or (the mental action of coming to a decision,’ or ‘the resolving of a question’).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter.’ In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ‘determination’ therein meaning ‘ending of the matter.
In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-
‘The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.
In Words and Phrases Legally Defined by John B. Saunders, 2nd edition, (Vol.2, D-N) ‘determination’ and ‘determine’ are defined in New Zealand, England and Australia at pages 63-64 as follows:-
A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right.
There can, indeed, be no question of defeating what has already come to an end. (Cheshire’s Modern Real Property (10th Edition) 281).
It is said that ‘termination’ and ‘determination’ do not mean the same thing; that ‘termination’ means the thing coming to its natural end; ‘determination’ means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ‘A’, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd’s edition of Johnson’s Dictionary, the fourth sense given of the word ‘determination’ is ‘expiration, ‘end’. And the lexicographer adds, ‘Used only by lawyers; as, from and after the determination of the said lease.’
The word ‘determination’ may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.
The words of the condition (in a bond) are, if the determination of the said action shall be in favour of the plaintiff,? etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things amounts to ‘a determination’ of the action in favour of the plaintiff within the meaning of the condition.
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour. Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.
There is a ‘con in Chapter 3 of the Income Tax Act, 1952, which relates to ‘Appeals and Relief for Mistake’ and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ‘An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ‘determined’ and ‘determination’ are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment. Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.
NEW ZEALAND.
Article 19 (of a partnership agreement) says: ‘Upon the determination of the partnership the assets of the firm shall be realized The word ‘determination appears to me to be used for ‘termination’, and usage shows that they are now used interchangeably. Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.
DETERMINE:
I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ‘determines’ any provision of the settlement. Be that as it may, it is, I think, clear that in the section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ‘by virtue or in consequence’ whereof a sum of money is payable by the ‘settlor or the wife or husband of the settlor’: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income.
It seems, I think, clear that the words ‘otherwise determine’ mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else. Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine’ must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ‘determine.’
There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex neccessitate be interests in remainder or reversion. Therefore, if the use of the word ‘determine’ introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ‘determine’.
If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides: ?In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death. There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as determining if it fails while it is yet reversionary in character. Re Wilson’s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.
In Black’s Law Dictionary, 9th edition, ‘determination’ is defined at page 514 to wit:-
Determination:- 1. A final decision by a Court or administrative agency (the Court’s determination of the issue)?
Initial determination:- The first determination made by the Social Security Administration of a person?s eligibility for benefits? 2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easement?s determination after four years).
In Osborn?s Concise Law Dictionary, 12th edition defined the word ‘determine’ at page 144 as: ‘Determine’ 1. To come to an end; (2) To decide an issue or appeal.
The governing phrase in Section 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is ‘determination’ and ‘determined’ and shall deliver its decision and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. The dominant words and phrases in Section 294(2) of the Constitution is ‘opinion’. Section 294(3) of the Constitution provides as follows:-
294(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
The classical words employed by the legislature in Section 294(3) of the Constitution are ‘decision’, ‘determined’ and ‘opinion’ which empower each Justice of the Supreme Court to tag ‘any determination’ of a dispute or controversy as an ‘opinion’ or a ‘decision’, the word ‘Ruling’ having been omitted or excluded from the provisions of the Constitution. Before the Constitution of the Federal Republic of Nigeria, 1999 as altered took effect from 29th May, 1999.
‘The Constitution of the Federal Republic of Nigeria, 1979 was in operation before that of 1999 as altered. Great and precious time was usually wasted in Court by legal practitioners to find out whether an interlocutory order or decision is final or not, and when an appeal may be filed with leave or not, etc. In Ojora & Ors. vs. Odunsi (1964) N.M.L.R. 12, Taylor, J.S.C., an eminent jurist of renown observed at pages 14 to 15 as follows:
It is within the discretion or this Court to grant an application for extension of time to appeal if the circumstances of the case warrant it. In the particular case on appeal before us the would-be-appellants are out of time because of an error in Law in treating the order sought to be appealed against as a final instead of an interlocutory one, a matter which is not always free from difficulties. It is certainly in their favour that the Notice of Appeal was filed within the fourteen days normally allowed for an application for leave to appeal against an interlocutory order or judgment to be filled. Looking at the Affidavit of the applicants, paragraphs 5, 7 and 8 in our view provide substantial reasons why the extension of time should be granted. Incidentally, the reason or ground for extension of time given in paragraphs 5 and 8 of the affidavit, which deals with the error in law or misconstruction of the effect of the order sought to be appealed against by Counsel is nearly on all fours with that given in the case of Gatti vs. Shoomith (1939) 3 A.E.R. 916 where the Court held, on page 919, that:
‘There is nothing in the nature of such a mistake (i.e. of law) to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case.?’
That may be the reason that the National Assembly omitted or excluded the word ‘Ruling’ and the phrase ‘interlocutory decision or order’ in the Constitution of the Federal Republic of Nigeria, 1999 as altered but provided in Sections 13-14 of the Court of Appeal Act, 2004 (as amended) as follows:-
13. This Part of this Act shall apply to the exercise of the jurisdiction of the Court of Appeal to hear appeals in civil causes or matters.
14(1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lies to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
(2) Nothing in Subsection (1) of this section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.
The intention of the legislature is that if the resolution does not ‘put an end’ or ‘terminate’ a controversy or a dispute a party aggrieved with the way and manner of adjudication by the Court or other tribunal established by law may resort to the provisions of Sections 13-14 of the Court of Appeal Act, 2004 (as amended in 2010) for redress provided the appeal or the application seeking leave to appeal emanated in the exercise by the High Court of a State or, as the case may be, the Federal High Court in exercise of their ‘original jurisdiction’ in ‘an interlocutory order or decision made in the course of any suit or matter.’ But an ‘appeal shall’ lie with leave of that Court or of the Court of Appeal under Section 14(1) of the Court of Appeal Act, 2004 (as amended). Section 14(1)-(2) of the Act should be read together with Section 24(1), (2)(a) of the Act to wit:-
14(1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
(2) Nothing in Subsection (1) of this section, shall be construed so as to authorized an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.
24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Sub-section (2) of this section that is applicable to the case.
(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 a criminal cause or matter, ninety days from the date of the decision appealed against.
Section 30 of the Court of Appeal Act, 2004 (as amended) defines an ‘appeal’, an ‘appellant’, a ‘Judgment’, ’cause’ and ‘matter’ as follows:-
‘Appeal’ includes an application for leave to appeal;
Appellant’ means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf.
‘Judgment’ includes a decision or order; ‘Cause’ includes any action, suit or other original proceeding between a plaintiff and a defendant or an applicant and a respondent, and any criminal proceeding;
‘Matter’ includes any proceeding in a Court not in a cause.
If an ‘appeal’ is defined to include ‘an application for leave to appeal’ in Section 30 of the Court of Appeal Act, 2004 (as amended) it follows that an application seeking leave to appeal shall be treated on the merit as a pending appeal. Order 6 Rules 6-9(1)-(2) of the Court of Appeal Rules, 2016 prescribes the materials that the applicant should put before this Court to receive a sympathetic hearing to wit:-
6. Where an application for leave to appeal from a decision of the Court below has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal.
7. The application for leave to appeal from a decision of lower Court shall contain copies of the following items, namely:-
(a) notice of motion for leave to appeal (Form 5):
(b) a certified true copy of the decision of the Court below sought to be appealed against;
(c) a copy of the proposed grounds of appeal ; and
(d) where leave has been refused by the lower Court, a copy of the order refusing leave.
8(1) Except with the leave of the Court, a maximum of fifteen minutes on each side will be allowed for oral argument on any application.
(2) Where the Court, in respect of an application had ordered the filing of written addresses, and the parties have duly filed their addresses, but on the day of the hearing of the application, any of the parties or legal practitioner does not appear to present oral argument in respect of the application, the application will be treated as having been duly argued.
9(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.?
The applicant has to support every application for an enlargement of time within which to appeal, with an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period Let me refer to the affidavit in support of this application that was sworn by Mrs. A.O. Salako, Deputy Director/Legal Adviser of Nigeria Security and Civil Defence Corps on 11th July, 2017 to wit:-
1. That I am the Deputy Director/Legal Adviser of Nigeria Security and Civil Defence Corpse by virtue of which facts I am conversant with the facts leading to the depositions contained hereunder.
2. That I know as a fact that the National Industrial Court of Nigeria, Makurdi Division on 22nd September, 2015 delivered judgment against the applicants herein among other parties. Certified True Copy of the said judgment is attached herewith and marked as Exhibit ‘SALAKO-1’.
3. That immediately after the said judgment as the legal Adviser of the 1st applicant, I instructed Bola Odugbesan, Esq. to lodge an appeal against the said judgment.
4. That pursuant to my instructions, Bola Odugbesan, Esq. filed two different applications dated 1st December, 2015 and 1st June, 2016 respectively before this Honourable Court which application are still pending and yet to be heard.
5. That I know as a fact that management members of the 1st appellant met in April, 2017 to deliberate on the matter and because of seriousness of same, it was decided that a Senior Counsel should be engaged to handle the appeal at this Court and the pending matters at the National Industrial Court of Nigeria.
6. That pursuant to the decision mentioned in (5) above, I was directed as the Legal Adviser by the management members of the 1st applicant to engage services of A.U. Mustapha, SAN & Co. which I did. Photocopies of my letters dated 28th April and 3rd May, 2017 respectively are attached and marked as Exhibit ?SALAKO-2 and 3?.
7. That I know as a fact that immediately after receiving my instruction, A.U. Mustapha, SAN & Co. filed before this Honourable Court on 16th May, 2017, a Notice of Change of Counsel which was served on me. Photocopy of the said Notice of Change of Counsel served on me is attached and marked as Exhibit ‘SALAKO-4’.
8. That I was informed of the following facts by O.A. Dada, Esq. on 10th July, 2017 at No.23, Mediterranean Street, Maitama, Abuja at about 10:00am in the course of our discussion/briefings in respect of this matter which I verily believe to be true and correct thus:-
(i) That he O.A. Dada, Esq. discovered after reading through the documents made available to him that there is the need to file this application.
(ii) That there is the need to review the Notice of Appeal attached to the applications of Bola Odugbesan, Esq. with a view to bringing out more and detail grounds of Appeal from the judgment.
(iii) That he prepared a New proposed Notice of Appeal to support the application for leave to appeal among other prayers. Photocopy of same is attached and marked as Exhibit ?SALAKO-5?.
(iv) That on the face of the Proposed Notice of Appeal, the grounds contained therein shows prima facie reasons why the appeal should be heard.
(v) That the delay in filing this application were due to the fact that the firm of A.U. Mustapha, SAN & Co. was waiting for the Supreme Court decision in respect of the case stated by this Honourable Court to the Supreme Court on the issue of right of appeal against judgment of the National Industrial Court in view of conflicting decisions on the issue.
(vi) That looking at the judgment of the National Industrial Court vis–vis the grounds of the Proposed Notice of Appeal, there is the need to seek and obtain leave of this Honourable Court before filing the appeal as the complaints ventilated in the grounds are not bothering on questions of fundamental rights.
9. That the applicants are desirous of ensuring speedy prosecution of the appeal by compiling record of appeal within time to facilitate timeous filing of briefs of argument.
10. That the grounds of the Proposed Notice of Appeal raises substantial issues of Law to warrant hearing of same on the merit.
11. That the respondents shall not be prejudiced by the grant of the application which shall afford opportunities to the applicants to exercise their constitutional right of appeal.
12. That I make this affidavit in good faith believing its contents to be true, correct and in accordance with the Oath Act.
Paragraph 2 of the sworn affidavit shows that the decision the applicants are seeking extension of time to appeal against in this appeal/application is headed a ‘Judgment.’ The ‘Judgment’ is marked Exhibit ‘SALAKO-1.’ It was render on 22nd September, 2015 whereas this application was filed on 11th July, 2017. Paragraph 4 of the sworn affidavit refers to ‘two different applications dated 1st December, 2015 and 1st June, 2016 respectively filed pursuant to my instruction’ by Bola Odugbesan, Esq. which are still pending and yet to be heard’.
Paragraphs 5-12 of the sworn affidavit describes the steps the management of the applicants/appellants did to ensure this appeal is heard on the merit. But if the determination of the learned Judge of the National Industrial Court of Nigeria rendered decision in favour of the respondents on 22nd September, 2015 and it was a ?judgment,? the question is how many days or months did the appellants have to lodge an appeal against the ?judgment? to the Court of Appeal? To answer this question one may have to examine the findings and determination or decision under Sections 294(1) and 318(1) of the Constitution.
‘No time is provided in Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 as altered within which to file an appeal in respect of a ?judgment?, ?decision? or ?determination? of the National Industrial Court of Nigeria though a right of appeal is prescribed under Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:-
240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federation Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.
A right of appeal from the decision or judgment of the National Industrial Court of Nigeria and other tribunals established by law shall be as may be prescribed by an Act of the National Assembly or under Section 243(2)-(3) of the Constitution which provides as follows:-
(2) 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.
(3) An appeal shall only lie from the decisions 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. Section 254(C)(5)-(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is couched on the following manner:-
(5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law.
(6) Notwithstanding anything to the contrary in this Constitution, appeal shall lie from the decision of the National Industrial Court from matters in Sub-section 5 of this section to the Court of Appeal as of right.
‘Exhibit SALAKO-1′ emanated from civil proceedings hence the provisions of Section 254(C)(5) of the Constitution do not apply in this circumstance in which case I shall determine this application/appeal by a consideration of the provisions of Section 243(4) of the Constitution which provides as follows:-
(4) Without prejudice to the provisions of Section 254C(5) of this Constitution, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.
The effect under Section 243(4) of the Constitution is that the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.
The important phrase to construe in Section 243(4) of the Constitution is the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final’. What does the phrase mean? Section 243(4) of the Constitution applies to ‘any civil jurisdiction of the National Industrial Court’ rendered by the Court of Appeal in granting or refusing leave to enable a party to appeal ‘shall be final’ within the contemplation of Section 243(4) of the Constitution. That is to say, the application to appeal or seeking leave to appeal may be against a ‘final or interlocutory order or decision’. But if the application is granted or refused by the Court of Appeal the determination ‘shall be final’ under Section 243(4) of the Constitution.
The decision of the Court of Appeal in refusing or granting leave to a party to appeal shall govern final or interlocutory proceedings and orders as the National Industrial Court of Nigeria is not listed in Sections 13-14 of the Court of Appeal Act, 2004 (as amended).
I have already shown from decided authorities and the statute books the effect of omitting or excluding names, words or phrases from the Constitution, Acts of the National Assembly, or Rules of Practice and Procedure, and that this constitutes a ‘modification’ of the provisions of the Statute or Constitution under interpretation. Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 enjoins the appellant/applicant seeking extension of time to appeal to also show good and substantial reasons why the application should be granted ?by grounds of appeal which prima facie show good cause why the appeal should be heard Order 6 Rule 10 of the Court of Appeal Rules, 2016 provides that ?an appeal shall be deemed to have been brought when the Notice of Appeal has been filed in the Registry of the Court below?. Order 6 Rule 5 of the Rules provides that ?where leave is granted by the Court or by the Court below, the appellant shall file a Notice of Appeal within the time prescribed by the Court of Appeal Act?.
Order 3 Rule 8(1)-(3) of the Court of Appeal Rules, 2016 is couched as follows:-
8(1) The Registry of each Judicial Division of the Court shall be situate in a town within the Judicial Division of the Court to be established.
(2) Except when otherwise expressly provided, all documents and proceedings shall be filed in the appropriate Registry; provided that whilst the Court is sitting in any Judicial Division or other place of session any documents or proceedings in connection with a matter to be dealt with at such Division or other place of session may be filed with the Registrar of the Court at such a place.
(3) A document may be filed in the appropriate Registry of the Court or such other place or session either by being delivered there by the party or his legal representative or agent in person or by registered post or by electronic means.
A document or process such as a Notice of Appeal is usually filed and the appropriate fees paid, duly stamped and initialled by the appropriate officer in the appropriate registry of the Court. See Mohammed vs. Musawa (1985) 3 NWLR (Pt.11) 83 at 95.
Leave has not been granted the appellants/applicants to file a Notice of Appeal in the Registry of the Court below to enable the applicants/appellants to apply for the compilation and transmission of record of appeal which would be served on the appellants/applicants to file their brief of argument. The appellants? brief shall be served on the respondents to enable them file their brief and cause them to be served on the appellants who may wish to file a Reply Brief before the appeal is set down for hearing by the registry of the Court of Appeal, bearing in mind that the learned Judge of the National Industrial Court rendered decision in favour of the respondents since 27th September, 2015. The qualification for appointment as a Judge of the National Industrial Court is prescribed in Section 254(B)(2)-(4) of the Constitution to wit:-
(2) The appointment of a person to the office of a Judge of the National Industrial Court shall be made by the President on the recommendation of the National Judicial Council.
(3) A person shall not be eligible to hold the office of a President of the National Industrial Court unless the person is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years and has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria.
(4) A person shall not be eligible to hold the office of a Judge of the National Industrial Court unless the person is a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years and has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria.
The subject-matters upon which the Judges of the National Industrial Court exercise jurisdiction is provided in Section 254(1)-(2) of the Constitution to wit:-
254C(1) Notwithstanding the provisions of Subsection 251, 257, 272 and anything contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cause and matters:-
(a) Relating to or connected with any labour, trade unions, industrial relations and matters arising from workplace, the condition of service, including health, safety, welfare of labour, employee, worker and masters incidental thereto or connected therewith;
(b) Relating to, connected with or arising from Factories Act, Trade Dispute Act, Trade Union Act, Labour Act, Employees Compensation Act or any other act or law relating to labour, employment, industrial relations, workplace or any other enactment replacing the acts or laws;
(c) Relating to or connected with the grant of any other restraining any person or body from taking part in any strike, lock out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters connected therewith or related thereto;
(d) Relating to or connected with any dispute over the interpretation and application of the provision of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employers association or any other matter which the Court has jurisdiction to hear and determine;
(e) Relating to or connected with any dispute arising from national minimum wage for the federation or any part thereof and matters connected therewith or arising therefrom;
(f) Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(g) Relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
(h) Relating to, connected with or pertaining to the application or interpretation of international labour standards;
(i) Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;
(j) Relating to the determination of any question as to the interpretation and application of any:-
(i) Collective agreement;
(ii) Award or order made by an arbitral tribunal in respect of a trade union or trade union disputes;
(iii) Award or judgment of the Court;
(iv) Term of settlement of any trade dispute;
(v) Trade union dispute or employment dispute as may be recorded in a memorandum of settlement;
(vi) Trade union constitution, the constitution of an association of employer or any association relating to employment, labour industrial relations or work place;
(vii) Dispute relating to or connected with any personnel matter arising from any free trade zone in the federation or any part thereof;
(k) Relating to connected with dispute arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
(l) Relating to:-
(i) Appeals from the decisions of the Registrar of trade Unions, or matters relating thereto or connected therewith;
(ii) Appeals from the decision or recommendation of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and
(iii) Such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not, as may be conferred upon it by an Act of the National Assembly;
(m) Relating to, connected with the registration of collective agreements.
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.
Judges of the National Industrial Court are specialists or experts in their fields of endeavour. Their pronouncements on matters of industrial relations and employment in Nigeria should be respected, hence a party seeking to challenge their determination or decision has to seek leave, not from the Court below, but from the Court of Appeal and show from the grounds of appeal that the intention to appeal is neither frivolous or vexatious or it is not calculated to deny the respondents the enjoyment of the fruits of their victory or delay the cause of justice. Good and substantial reasons must be shown in the proposed Notice and Grounds of Appeal why time should be extended to appeal against the decision that was rendered since 22nd July, 2015.
An ‘appellant’ is defined to include the legal representative. It follows that what the legal practitioner failed or neglected to do within the time prescribed by the Law, Constitution or Rules of Practice and Procedure the other appellant can do it. The deponent in support of this application is the appellants? Deputy Director/Legal Adviser of the appellants hence neither the appellants, their legal representatives nor the Deputy Director/Legal Adviser can plead ignorance that they did not know that they should have withdrawn the application filed in the Court below seeking leave to appeal to the Court of Appeal for lack of jurisdiction. The Court below had no jurisdiction to have heard and granted the application to appeal to the Court of Appeal by virtue of the provisions of Section 243(3)-(4) of the Constitution.
This Court has to take into consideration the length of time that has lapsed from 22nd July, 2015 to the filing of the application in the Court below and in this Court as well as the fact that the respondents have not enjoyed the fruits of their victory, on a purported appeal that is yet to be filed. In Olayinka vs. Olusanmi (1971) 1 NMLR 277, Coker, JSC held at page 279 as follows:-
unless a stay is being sought pending the incidence of a certain legal occurrence, a stay of execution is a completely misconceived proceeding to institute. The order made by the President of the Customary Grade ?B? Court and affirmed by the learned Judge on appeal, postulates that the judgment of the Native Court is stayed indefinitely and is thereby divested of its legal force and effect even though it has not been appealed against or set aside in any way recognized by law
In Vaswani Trading Company vs. Savalakh Company (1972) 12 SC 77, Coker, JSC held at page 81 lines 24 to page 83 lines 1 of the judgment as follows:
‘When the order or judgment of the lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the Court of Appeal, and indeed any Court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observations of Bowen, L.J., in the Annot Lyle (1886) 11 page 114 at page 116). We take it that the word ?special? in the con is not used in antithesis to the words ?common? or ?normal? for that would be tantamount to pre-judging the appeal on a determination of an application for a stay of execution. When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the Court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.
All rules governing stay of actions or proceedings, stay of executions of judgment or orders and the like, are but corollaries of this general principle and seek to establish no other criteria than that the Court, and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expenses of the other or of the Court to assume that rule.
Superior Courts of record have fashioned rules that governs applications seeking extension of time or leave to appeal from decisions of Courts below to the Court of Appeal.
Ground One (1) and eight (8) in the Notice of Appeal complains about ?misdirection on questions of ?facts? committed by the learned trial Judge. Grounds 2-9 of the grounds of appeal are complaints concerning ?errors committed by the learned trial Judge in law in his judgment
Order 7 Rule 1-6 and 8 of the Court of Appeal Rules, 2016 provides as follows:-
1. Part 2 of this Rule shall apply to appeals to the Court from any Court or tribunal acting either in its original or its appellate jurisdiction in civil cases, and to matters related thereto.
2(1) Appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges misdirection or error in Law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the Appellant or his legal representative.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
4. The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.
6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.
8. A notice of appeal may be amended by or with the leave of the Court at any time.?
A perusal of grounds 1-9 in the proposed Notice of Appeal are supported with arguments and narratives in the particulars hence are not permitted under this rules hence all are struck out in accordance with the provisions of Order 7 Rules 2-3 of the Court of Appeal Rules, 2016. There are no competent grounds of appeal, I shall invoke the provisions of Order 7 Rules 4-6 of the Rules which provides as follows:-
4. The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.
6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.
I shall invoke the provisions of Order 7 Rule 5 of the Court of Appeal Rules, 2016 in deciding the appeal.
To ‘decide’ an appeal means to determine the controversy under Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2016 which provides as follows:-
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?
To ‘decide’ an appeal is to make a choice about what you are going to do, to consider something carefully and officially state what should be done about it? deciding? producing final result of a situation or an event See Macmillan English Dictionary for Advanced Learner?s, 2nd edition, page 382.
When the Court of Appeal strike out all the proposed grounds of appeal because they are either vague or not permitted under the Rules of the Court, in the absence of a ground complaining that the ?decision is against the weight of evidence? there will be no grounds for challenging the determination of the Court below and the remedy is for the Court to dismiss the purported Notice and Grounds of Appeal. The dismissal will constitute the ‘final’ decision of the Court of Appeal under Order 9 Rule 4(1)-(3) of the Court of Appeal Rules. The Court will do this by applying the ‘Blue Pencil Test’ which was explained and applied in a number of decisions of the Supreme Court inEzekpelechi vs. Ugoji (1991) 7 SCNJ (2) 196 at 258; Onifade vs. Olayowola (1990) 11 SCNJ 10/22; Onojobi vs. Olanipekun (1985) 4 SC (pt. 2) 156 at 163; Ugo vs. Obiekwe (1989) 2 SCNJ 95 at 103-104 or (1989) 1 NWLR (pt. 99) 566 and Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at 430.
The ‘final’, ‘finality doctrine’ and ‘final judgment rule’, etc, was defined in Black’s Law Dictionary, 9th edition, page 705-706 to wit:-
‘Final’ 1. (Of a judgment at law) not requiring any further judicial action by the Court that rendered judgment to determine the matter litigated; concluded. 2. (Of an equitable decree) not requiring any further judicial action beyond supervising how the decree is carried out. Once an order, judgment, or decree is final, it may be appealed on the merits.
Finality Doctrine – The rule that a Court will not judicially review an administrative agency’s action until it is final. Also termed final-order doctrine; doctrine of finality; principle of finality. Cf. Final-Judgment Rule; Interlocutory Appeals Act.
Final Judgment Rule – The principle that a party may appeal only from a district Court’s final decision that ends the litigation on the merits. Under this rule, a party must raise all claims of error in a single appeal. Also termed final-decision rule; finality rule.
This being an appeal that has emanated from a determination of the National Industrial Court of Nigeria, this determination is ‘final’ by virtue of Section 243(4) of the Constitution.
The ‘final decision’ rule has been applied in a plethora of authorities of the Supreme Court in Ebokam vs. Ekwenife (1999) 7 SC (Pt.1) 77; Blay vs. Solomon (1947) 12 WACA 175; The Automatic Telephone & Electricity Co. vs. F.M.G. of the Federal Republic of Nigeria (1968) 1 All NLR 428. Applying the ?final judgment rule?, I dismiss this appeal/application as lacking in merit.
In considering the cost to award against the appellants I shall take into consideration the fact that the respondents have not enjoyed the fruits of their victory in the Court below since 22nd May, 2015. The learned Judge of the National Industrial Court Haastrup, J., had held at page 23 lines 16 to page 24 lines 1-6 of Exhibit ?SALAKO-2? as follows:-
Finally, based on my reasoning above, and all the authorities cited, it is therefore my respectful view, as I do so hold that the claimants in this suit are entitled to only reliefs (1), (2), (3), (4) and (5) of the reliefs as contained in the Originating Summons filed before this Court on the 24th day of June, 2014. In the circumstance, and for the avoidance of doubt, the following declarations and orders are hereby made by this Court:-
1. Declared that the 1st-260th claimants are in the regular and permanent employment of the 1st ? 5th defendants.
2. Declared that the 1st – 260th claimants are entitled to all their salaries and other emoluments as per their various ranks from the 28th of June, 2003 to the date of judgment of this Honourable Court.
3. Ordered that the 1st – 5th defendants absorb and issue letters of appointment to all the claimants as officers of the 1st defendant within the dictates of the provisions of Section 26(6) of the 1st defendant?s enabling Act.
4. Ordered that 1st – 5th defendants pay to the 1st – 260th claimants all their accumulated arrears of their salaries, allowances and other emoluments withheld from them since the 28th day of June, 2003 to the date of judgment by this Court.
5. Ordered that the 1st – 5th defendants accelerate the promotions in ranks of the 1st – 260th claimants as to match their various peers now in service of the 1st ? 5th defendants.
This Court declines to award any costs in this suit.
Judgment is entered accordingly.
SGD. Hon. Justice R.B. Haastrup.
The litigants put before the learned trial Judge oral and documentary exhibits which enabled the learned Judge to evaluate the claims of the respondents and the appellants? frivolous and vexatious defences. The learned trial Judge interpreted the relevant provisions of various Statutes that governed the relationship of the parties before arriving at a decision in favour of the respondents. The evaluation of oral and documentary evidence supported by the relevant statutes that governs the relationship between an employer and an employee such as the appellants and the respondents is the responsibility of the learned trial Judge before whom the proceedings were conducted. The decision of the learned trial Judge raises issues of mixed law and fact that the appellants required leave from the Court of Appeal to valid the appeal.
The appellants have not shown how the learned trial Judge ‘misdirected’ or ‘erred in law and fact’ or in ‘law’ for this Court to grant them leave and to embark on a re-evaluation of what the learned trial Judge had amiably done that has met the justice of the situation by granting the respondents the reliefs I have reproduced.
This Court will not grant extension of time to an appellant to appeal where the outcome will be for this Court to re-evaluate the oral and documentary exhibits coupled with statutory provisions that governs the relationships of employees and employers when that exercise had been carried out by a learned Judge of the National Industrial Court. SeeCustoms and Excise Board vs. Barau (1982) 2 NCR 1 where Fatayi-Williams, C.J.N. held at pages 21-22 lines 10-29 as follows:-
In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court held (1968 NMLR at 95) that:-
‘Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.’
Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):
A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances.
It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial.? [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.
In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):
The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his ?performance? on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when ?dealing only with the cold sullen print of the records before them? decided to set aside the Chief Judge?s findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.
In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the misdirections complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.
In Lions Building Ltd. vs. Shadipe (1976) 2 FNLR 282, Udoma, JSC held at page 289 as follows:-
The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial’ According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel, namely, that judgment is against the weight of evidence.
We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle to which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence. It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest no Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 – 1911) I N.L.R. 35, in these words:
When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong. If, however, the Appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.
Order 20 Rules 6-11 of the Court of Appeal Rules, 2016 governs the award of costs to wit:-
6. When the Court directs any judgment to be enforced by another Court, a certificate under the seal of the Court and the hand of the Presiding Justice setting forth the judgment shall be transmitted by the Registrar to such other Court and the latter shall enforce such judgment in terms of the certificate.
7. Where the costs of an appeal are allowed, they may either be fixed by the Court at the time when the judgment is given or may be ordered to be taxed.
8(1) The Registrar at the final determination of an appeal shall notify in such manner as he thinks most convenient to the registrar of the Court below, the decision of the Court in relation thereto, and also any orders or directions made or given by the Court in relation to such appeal or any matter connected therewith.
(2) The registrar of the Court below shall on receiving the notification referred to in this Rule, enter the particulars thereof on the records of such Court
9. Upon the final determination of an appeal for the purposes of which the Registrar has obtained, from the registrar of the Court below any original depositions, exhibits, information, inquisition, plea or other documents usually kept by the said Registrar, or forming part of the record of the Court below, the Registrar, shall, where practicable, cause the same to be returned to the registrar of the Court below.
10. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.
11(1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
(2) The powers contained in Sub – rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed from or complained of the decision.”
There are Two Hundred and Sixty respondents in this appeal to whom I have to award cost to meet the justice of the case. I award One Million Naira (N1m) cost to cover the cost of all the respondents being a final decision of this Court. I direct the learned Judge of the National Industrial Court to enforce the decision and the costs in favour of the respondents forthwith. This appeal (Section 30 of the Court of Appeal Act, 2004 (as amended), and the application are dismissed.
Appearances:
Mustapha Baba Tafarki, Esq.For Appellant(s)
A.A. Sule, Esq. with him, R.G. Okpologidi, Esq., E.J. Okwori, Esq. and W.E. Awodi, Esq.For Respondent(s)
