ABOLASE & ORS v. MESSR. CHEVRON NIG. LTD. & ANOR (2020)

ABOLASE & ORS v. MESSR. CHEVRON NIG. LTD. & ANOR

(2020)LCN/14530(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/L/426M/2017(R)

Before Our Lordships:

Jamilu Yammama Tukur Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ABOLASE M. 2. ADEYEMI M. A. 3. ANAZIA, M. 4. ANYINGBO, J. O. 5. ARUWEI, I. W. 6. AYENI, O. 7. DADA, S. A. 8. EBULU, S. O. 9. EDEMA, A. U. 10. EJUKONEMU, L. 11. EREWA, A. O. 12. EROMOSELE, F. O. 13. IRENONSE, S. O. 14. IRIMISOSE, M. 15. JAKPA, A. O. 16. MARTINS, I. O. 17. MBA, P. C. 18. NIKORO, D. D. 19. NWAMUO, J. I. 20. ODERINDE, B. O. A. 21. OFOARAMIEYERE, M. 22. OGBENI, R. S. 23. OHIAERI, O. O. 24. OLALEYE, A. J. 25. OLANIYAN, S. O. 26. OLOMA, G. O. 27. OYEWOLA, B. O. 28. PIRA, S. N. 29. SIFO, J. 30. SOBODU, C. O. 31. SONDE, A. O. 32. TEDEYE, O. S. 33. TUOYO, B. A. S. 34. ULORI, G. T. 35. UMUKPEDI, D. D. APPELANT(S)

And

1. MESSR. CHEVRON NIGERIA LTD. 2. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPLICANT SEEKING FOR EXTENSION OF TIME TO APPEAL MUST SATISFY CERTAIN CONDITIONS

An Applicant seeking for extension of time to appeal must satisfy certain conditions. It is not an application that an Applicant should take for granted and as a done deal. The power to grant such prayer is discretionary and like all discretionary powers of a Court, it must be exercised judicially and judiciously. See Ubale vs. Dadiya (2008) 15 NWLR (Pt. III) 489; INEC vs. Atuma & Ors (2013) SC (Pt. V) 95.
A Court will not grant a prayer for extension of time if the Applicant does not state good and substantial reasons that explain the delay in filing the appeal. While the Applicant is not required to account for each second, minute, hour, day, week, month, and year of the delay, he will be required to generally state reasons for the delay covering the period. See Adeniyi & Anor vs. Tina George Industries Ltd & Ors (2019) LPELR-48891 (SC); Olatubosun vs. Texaco (Nig) Ltd Plc & Anor (2012) LPELR-7805 (SC).
The Applicant is also required to show in the affidavit that it is not taking the Court on a wild goose chase. The Applicant must show that there are triable issues in the appeal. To satisfy this condition, the Applicant must file a proposed notice of appeal. The Court will then look at the proposed grounds of appeal, without deciding it on the merit but must be clear and convinced that there is prima facie case for trial in the appeal if the leave is granted. See A.G. Federation vs. A.I.C. Ltd (1995) 2 NWLR (Pt. 378) 388; Unipetrol (Nig) vs. Bukar (1994) 5 NWLR (Pt. 344) 360.
The Applicants in this appeal must satisfy these two conditions before this Court can exercise discretion in their favour. This is the clear, settled, unequivocal, and trite position of the law. A little excursion into the case law will not be out of place in this regard. In Agbaso vs. Iwunze & Ors (2019) LPELR-48906 (SC), the apex Court per Peter-Odili, JSC at page 23 held:
“This Court has power to extend the time within which to seek leave to appeal but the indulgence is not made as of course as there are certain conditions that must be in place for the discretion of the Court to be exercised in favour of the application.
There are firstly the existence of good and substantial reasons for failure to appeal within the prescribed period, and secondly the existence of grounds of appeal which prima facie show good cause why the appeal should be heard. See Adelekan v Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at 47; Obikoya v Wema Bank Ltd (1989) 1 NWLR (Pt.96) 157; Ibodo v Enarofia (1980) 5-7 SC 42; Holman Bros (Nig.) Ltd v Kigo (Nig) 8-11 SC 43; C.B.N. v Ahmed (2001) 11 NWLR (Pt.724) 369 at 393.” PER TOBI, J.C.A.

WHETHER R NOT AN APPLICATION FOR ENLARGEMENT OR EXTENSION OF TIME WITH WHICH TO APPEAL IS GRANTED AT THE JUDICIAL AND JUDICIOUS DISCRETION OF THE COURT

Still, on this point, one more case will not harm anyone. It covers all the points raised above. It was earlier in time. This is the case of Akinpelu vs. Adegbore & Ors (2008) LPELR- 354 (SC), the apex Court at pages 23-24 held:
“The granting of an application for enlargement or extension of time with which to appeal is at the discretion of the Court, which must be exercised judicially and judiciously. See Akinyede v. The Appraiser (1971) 1 All NLR 162; Alagbe v. Abimbola (1978) 2 SC 39; Obikoya v. Wema Bank Limited (1989) 1 NWLR (Pt. 96) 157. The discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the Court. The Court will take into consideration the following factors:
(a) An applicant, in the matter, has a right of appeal as of right and therefore does not require leave of Court.
(b) The affidavit in support of the application must give satisfactory explanation for the delay. In other words, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. In other words, the affidavit must present some materials before the Court to enable it exercise its discretion.
(c) The grounds of appeal must show good cause why the appeal should be heard. Once the grounds of appeal prima facie show good cause why the appeal should be heard, an application will be granted. The Court cannot at this stage consider whether the appeal will succeed. That has to come at the hearing of the appeal.
(d) The justice of the case demands that the appeal should be heard. See Ibodo v. Enarofia, supra; Ogbu v. Urum (1981) 4 SC 1; Williams v. Hope Rising (1982) 1-2 SC 145; Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 165; Mobil Oil (Nig) Limited v. Chief Agadaigho (1988) 2 NWLR (Pt. 77) 383 and Shittu v. Osibanjo (1988) 3 NWLR (Pt. 83) 483.
An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupebi v. Saibu (1982) 7 SC 104. A special circumstances is of a particular kind, which is unique, beyond ordinary, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of counsel qualifies as a special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. See Doherty v. Doherty (1964) 1 All NLR 299; Ahmadu v. Salawu (1974) 11 SC 43; Bowaje v. Adediwura (1976) 6 SC 143.”PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): Before this Court is an application filed by the Appellants/Applicants wherein they are seeking the order of this Court for leave to appeal against the decision of the ruling delivered by Hon. Justice O.A. Obaseki-Osaghae of the National Industrial Court in Suit No: NICN/LA/289/2012 on 10/6/2013 by striking out the case before the lower Court.

The Applicants were staff of the 1st Respondent whose appointment were terminated. Dissatisfied with the termination of their appointment, they filed Suit No: LD/1388/2003 at the High Court of Lagos for breach of their contract of employment. The suit was struck out by the High Court of Lagos State on 9/3/2012 for lack of jurisdiction. This was based on the Constitutional amendment that places exclusive jurisdiction of labour matters on the National Industrial Court. Following the striking out of the suit, the Applicants filed Suit No: NICN/LA/289/2012 at the National Industrial Court. This suit was struck out by the National Industrial Court following the application of the 1st Respondent that the action was statute-barred. This decision was delivered on

10/6/2013. This is the judgment the Appellants/Applicants are appealing against. The lower Court on page 8 of the ruling held thus:
“I hold that this action is statute barred. This Court lacks jurisdiction to entertain it. Consequently, the action is struck out in limine. I make no order as to cost.”

The Appellants/Applicants returned to the High Court of Lagos State to set aside the ruling delivered on 9/3/2012 and to secure an order for the High Court to transfer the matter formally to the NICN. This suit and the application therein was struck out for lacking in merit. This decision of the Lagos State High Court was delivered on 2/7/14. Having failed therein, the Applicants now remembered to appeal against the decision of the Industrial Court delivered in 2013. This application for leave to appeal was filed on 6/4/17. The leave to appeal was filed 4 years and 1 month after the ruling.

The Application was filed by Applicants’ counsel, Nelly Egwuagha (Mrs). The Applicants supported their application by a 25 paragraph affidavit and a further affidavit of 13 paragraphs. In opposition, the 1st Respondent filed a 15 paragraph

counter-affidavit. This Court ordered that parties file their written addresses. The Applicants’ counsel Nelly Egwuagha (Mrs) filed the written address on 13/12/19 and the 1st Respondent’s written address was filed on 23/12/19 by counsel Chinasa Unaegbunam. The addresses were adopted on 24/6/2020.

The Applicants’ counsel raised a single issue for determination as follows:
Whether the Applicants have given cogent reasons in the Affidavits for the delay in filing the Notice of Appeal within time sufficient for the Honourable Court of Appeal to exercise its discretion in granting the application for extension of time in favour of the Applicants?

Learned Counsel relying on Agip Exploration Ltd vs. FIRS & Ors (2016) LPELR 40333 (CA); Impresit Bakolori Plc vs. Abdulazeez (2003) 12 NWLR (Pt. 834) (CA) and Order 7 Rule 10(2) of the Court of Appeal Rules, 2016 submitted that the Applicants have satisfied the conditions for the granting of this application. The reason given for the delay is the uncertainty surrounding the jurisdiction of the NICN which was settled by the Supreme Court in the case of Skye Bank vs. Iwu (2017) 16 NWLR

(Pt.1590) 24; Coca-Cola vs. Akinsanya (2017) 17 NWLR (Pt.1593) 74 at 120. It is the final submission of counsel that the Applicants having satisfied the conditions for the leave to be granted, this Court should grant the application.

The Respondent’s counsel also raised a single issue for determination as follows:
Whether the Applicants have satisfied the requirement for a favourable exercise of this honourable Court’s discretion granting them extension of time within which to appeal.

The 1st Respondent’s counsel answered this question in the negative. It is the submission of counsel that the discretion must be exercised judicially and judiciously meaning therefore that the conditions for the granting of the application were not satisfied by the Applicants. Counsel referred to Akinpelu vs. Adegbore (2008) 10 NWLR (Pt.1096) 531; Nigerian Laboratory Corp. vs. P.M.B. Ltd (2012) 15 NWLR (Pt. 1324) 505. It is the submission of counsel that the Applicants have not disclosed good and substantial reason for the delay and that the grounds of appeal have not disclosed arguable grounds of appeal. He relied on Onabanjo vs. Sivarasa (2010)

LPELR-4780; Ukwu vs. Bunge (1991) 3 NWLR (Pt.182) 677; N.I.W.A. vs. The SPDC (2008) 13 NWLR (Pt.1103) 48. It is the further submission of counsel that the ground of appeal not relating or complaining against any aspect of the ruling is not competent. He referred to Globe Fishing Ind. Ltd vs. Coker (1990) 7 NWLR (Pt.162) 265 (SC). Finally, counsel urged the Court to dismiss the application.

The Applicants’ counsel filed a process on 25/6/2020. He was permitted by this Court to file an additional authority and serve same on the other counsel but what the Applicants’ counsel filed was more of a reply on point of law. The process filed on 25/6/2020 was filed without leave and so it is not proper before this Court and so it is discountenanced. That apart, what was filed was not in line with the permission given to counsel during the hearing.

There are three decisions involved or arising from the issue of jurisdiction on the case involving the parties. The decision that is contested here is the decision of the NICN delivered on 10/6/13 which is based on the application of the 1st Respondent in Suit No: NICN/LA/289/2012. The suit was struck out

for lack of jurisdiction on the premise that the action was statute-barred. The Applicants not satisfied with the ruling are challenging the ruling on a proposed one ground of appeal. The proposed ground of appeal is in these words:
“The National Industrial Court erred in law in assuming jurisdiction over the Appellant/Applicants’ matter when there was no order of the Lagos High Court transferring the Appellants/Applicants’ suit in accordance with Section 24(3) of the National Industrial Court Act, 2006.”
In summary, the proposed ground of appeal is challenging the jurisdiction of the lower Court to have assumed jurisdiction to determine the matter. I must state in very clear terms that at this stage of this appeal which is seeking for leave to appeal, this Court is not to look at the viability and the high rate of success of the appeal. That is not for this Court to determine at this stage. All that the Court needs to do is to look at the ground of appeal to determine whether the ground of appeal on the face of it is arguable. It is not to consider whether the appeal will succeed or has prospects of succeeding. That will be

putting the cart before the horse which is a wrong order for any well-meaning endeavour in life. See CPC & Anor vs. Nyako & Ors (2011) LPELR-23009 (SC).
The Applicants have rightly submitted that an application of this sought can be granted if the Applicants have enough evidence to sway the Court in exercising the discretion in favour of the Applicants. That this is a discretionary power of the Court which must be exercised judicially and judiciously. See SPDC & Ors vs. Agbara & Ors (2015) LPELR-25987 (SC).
The issue for determination is whether the Applicants have provided enough evidence to sway this Court to grant the application sought, which is, for leave to appeal against the judgment of the lower Court striking out the suit as the action is statute-barred.
The Applicants are challenging the ruling of the lower Court delivered on 10/6/13. The Applicants have run out of time hence this application filed on 6/4/17. This is a period of 4 years and 1 month from the date of the judgment. This is a long time ago. For the Applicants to succeed in this application the Applicants must explain the delay and the reason for such delay.

The Applicants must account for the period of the delay and in so doing, it need not be a minute by minute explanation for each day but any explanation covering the period of the delay will be adequate. The point must however be made clear that this kind of application is not granted as of course or like going to a supermarket to pick up an item paid for. The Applicants have a duty to show by their affidavit evidence that the delay was practically and not self-induced. What the Applicants need to establish to succeed in this application is determined by the prayers sought in the application. I have reproduced the prayer so I need not do so again. The Applicants are seeking leave to appeal against the judgment of the lower Court. In considering this application, I must caution myself so that I do not fall for the temptation of considering the main case on its merit. This is a temptation I will not fall for. In an application of this sort, what the Applicants need to prove is established beyond any dispute. An Applicant seeking for extension of time to appeal must satisfy certain conditions. It is not an application that an Applicant should take for granted and

as a done deal. The power to grant such prayer is discretionary and like all discretionary powers of a Court, it must be exercised judicially and judiciously. See Ubale vs. Dadiya (2008) 15 NWLR (Pt. III) 489; INEC vs. Atuma & Ors (2013) SC (Pt. V) 95.
A Court will not grant a prayer for extension of time if the Applicant does not state good and substantial reasons that explain the delay in filing the appeal. While the Applicant is not required to account for each second, minute, hour, day, week, month, and year of the delay, he will be required to generally state reasons for the delay covering the period. See Adeniyi & Anor vs. Tina George Industries Ltd & Ors (2019) LPELR-48891 (SC); Olatubosun vs. Texaco (Nig) Ltd Plc & Anor (2012) LPELR-7805 (SC).
The Applicant is also required to show in the affidavit that it is not taking the Court on a wild goose chase. The Applicant must show that there are triable issues in the appeal. To satisfy this condition, the Applicant must file a proposed notice of appeal. The Court will then look at the proposed grounds of appeal, without deciding it on the merit but must be clear and convinced that

there is prima facie case for trial in the appeal if the leave is granted. See A.G. Federation vs. A.I.C. Ltd (1995) 2 NWLR (Pt. 378) 388; Unipetrol (Nig) vs. Bukar (1994) 5 NWLR (Pt. 344) 360.
The Applicants in this appeal must satisfy these two conditions before this Court can exercise discretion in their favour. This is the clear, settled, unequivocal, and trite position of the law. A little excursion into the case law will not be out of place in this regard. In Agbaso vs. Iwunze & Ors (2019) LPELR-48906 (SC), the apex Court per Peter-Odili, JSC at page 23 held:
“This Court has power to extend the time within which to seek leave to appeal but the indulgence is not made as of course as there are certain conditions that must be in place for the discretion of the Court to be exercised in favour of the application.
There are firstly the existence of good and substantial reasons for failure to appeal within the prescribed period, and secondly the existence of grounds of appeal which prima facie show good cause why the appeal should be heard. See Adelekan v Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at 47; Obikoya v Wema Bank Ltd (1989) 1

NWLR (Pt.96) 157; Ibodo v Enarofia (1980) 5-7 SC 42; Holman Bros (Nig.) Ltd v Kigo (Nig) 8-11 SC 43; C.B.N. v Ahmed (2001) 11 NWLR (Pt.724) 369 at 393.”
Similarly, the Supreme Court in Jesso Maritime Resources Ltd vs. M/T Mother Benedicta & Anor ELC(2019) 3193 SC 1 driving home the same point held as follows:
“With the statutory provisions it needs no saying or for second guessing that an application for leave to appeal can only be successful where the applicant can establish that the delay in bringing the application is neither willful nor inordinate. That is to say thus:-
(a) that there are good and substantial reasons for failure to appeal within the period statutorily prescribed;
(b) that there are grounds which prima facie show good cause why the appeal should be heard. These two conditions must be satisfied before the Court will exercise its discretion as to the grant of any application for extension of time or leave to appeal”
The Court went on in the same case to hold:
“Again to be said is that there are two legs to the conditions to be fulfilled by an applicant for extension of time for the

application to succeed, the first being that there is deposition in the affidavit in support showing good and substantial reasons for the delay in filing the appeal and which reasons are convincing and not ousted by a countering deposition from the other side. The second leg is that the grounds of appeal proposed are on face value display good cause why the appeal should be heard. These two legs or conditions are conjunctively applying(sic) and must co-exist before the application would be adjudged successful. That cannot be said to be the case in this instance where applicants counsel failed to show due diligence and interest in filing an appeal after being instructed by the applicant nine (9) months after the said instruction.”
Still, on this point, one more case will not harm anyone. It covers all the points raised above. It was earlier in time. This is the case of Akinpelu vs. Adegbore & Ors (2008) LPELR- 354 (SC), the apex Court at pages 23-24 held:
“The granting of an application for enlargement or extension of time with which to appeal is at the discretion of the Court, which must be exercised judicially and judiciously. See

Akinyede v. The Appraiser (1971) 1 All NLR 162; Alagbe v. Abimbola (1978) 2 SC 39; Obikoya v. Wema Bank Limited (1989) 1 NWLR (Pt. 96) 157. The discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the Court. The Court will take into consideration the following factors:
(a) An applicant, in the matter, has a right of appeal as of right and therefore does not require leave of Court.
(b) The affidavit in support of the application must give satisfactory explanation for the delay. In other words, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. In other words, the affidavit must present some materials before the Court to enable it exercise its discretion.
(c) The grounds of appeal must show good cause why the appeal should be heard. Once the grounds of appeal prima facie show good cause why the appeal should be heard, an application will be granted. The Court cannot at this stage consider whether the appeal will succeed. That has to come at the hearing of the appeal.
(d) The justice of the case demands that the appeal should be

heard. See Ibodo v. Enarofia, supra; Ogbu v. Urum (1981) 4 SC 1; Williams v. Hope Rising (1982) 1-2 SC 145; Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 165; Mobil Oil (Nig) Limited v. Chief Agadaigho (1988) 2 NWLR (Pt. 77) 383 and Shittu v. Osibanjo (1988) 3 NWLR (Pt. 83) 483.
An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupebi v. Saibu (1982) 7 SC 104. A special circumstances is of a particular kind, which is unique, beyond ordinary, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of counsel qualifies as a special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. See Doherty v. Doherty (1964) 1 All NLR 299; Ahmadu v. Salawu (1974) 11 SC 43; Bowaje v. Adediwura (1976) 6 SC 143.”

I can go on and on but I rather stop here. The question now is whether the Applicants have satisfied these two conditions to warrant this Court granting this application. In determining whether the Applicants have satisfied these conditions, the Court will look at the affidavit before it and should not go outside same to fish out the satisfaction of the conditions. This is because the Court as an unbiased umpire is not to make a case for any of the parties. See Kaydee Ventures Ltd vs. The Hon. Minister, FCT &Ors (2010) LPELR-1681 (SC).
The burden of proving the good and substantial ground for the delay is on the Applicants and not on the Respondents as the trite legal position is that the party that alleges has the duty to prove. See Akinbade & Anor vs. Babatunde & Ors (2017) LPELR-43463 (SC).
The Applicants in paragraphs 16-20 & 23 gave reasons for the delay in filing the motion for leave to appeal. It would appear from the above paragraphs of the affidavit in support that the delay was due to the sense made out of the judgment by the Applicants and their counsel. They decided to take steps in relation to the matter as they deemed fit and these

steps seem to have been responsible for the delay. I will produce paragraph 23 of the affidavit in support. The affidavit states thus:
“That I further believe that the delay in filing the Notice of Appeal is not out of disrespect to this Honourable Court, but as a result of the peculiar concatenation of the event in this matter.”
Apparently, the counsel to the Applicants instead of appealing against the decision of the lower Court of 10/6/13 decided based on its legal understanding and decision on the legal options to take, to rather go back to the State High Court to set aside its judgment. This application backfired and then counsel returned after 4 years to express their desire to appeal against the judgment. If the Applicants had appreciated the position of the law and followed it, this forum shopping kind of operation would not have been necessary.
Let us look at the timelines in this case. The first ruling of the High Court of Lagos State was delivered on 9/3/12. The reason for the ruling was that based on Section 254 (C) of the 1999 Constitution 3rd Alteration, the Court declined jurisdiction because the constitutional

amendment or alteration made in 2010 gave exclusive jurisdiction to the Industrial Court. This is what Hon. Justice S.O. Nwaka said in the ruling of 9/3/2012;
“At cursory look implies that this is a labour related matter and I so hold. Going by Section 254(c)(1)(a) of the Constitution of the Federal Republic of Nigeria 3rd Alteration Act 2010 the National Industrial Court has exclusive jurisdiction in industrial related matters. It therefore follows that this Court does not have the jurisdiction to entertain this matter moreso as trial has not commenced we may need to ask at what stage trial commences in a case. Trial is a formal judicial examination of evidence by Court to determine a question of law or fact between contending parties.
In our present case none of the parties have been examined or cross examined by this Court so it cannot be said that trial has commenced in this case and I so hold.
I am of the view that if a Court lacks jurisdiction to try a case it should at the earliest opportunity put an end to such proceedings by striking out the case so that parties can go to the Court that has jurisdiction to hear them.

In view of the above I hereby struck out this action as I do not have the jurisdiction to entertain same.”
The Court then went on to say by way of either consequential order or an Obiter that the Applicants should go to the Court that has jurisdiction. This decision was made on 9/3/2012. The Applicants filed a fresh suit on the same matter to the NICN. This was on 19/6/2012. Trial commenced and within the trial the 1st Respondent brought a motion that the action is statute-barred. The Court struck out the suit on the ground that the action was statute-barred. The lower Court instead of dismissing the suit went on to strike out the suit. This was on 10/6/2013. The Applicants should have filed an appeal against that judgment. What did the Applicants do? They did nothing about challenging the decision but rather went to file an application to relist the suit that was struck out on 9/3/2012. The Lagos High Court per Hon. Justice M.O. Obadina after considering the motion to relist Suit No: LD/1388/2003 dismissed it on 2/7/2014. It was clear to the Applicants at this stage that they have come to the end of the road with the matter at the lower Court and therefore

the most appropriate thing to do as at then will have been to file this application. The affidavit in support did not disclose any reason talk less of good and substantial reason for the delay between 2/7/14 when it was clear nothing could be done further in the High Court or NICN and when this application of leave was filed. The Applicants have not been able to satisfy the condition as the Applicants have not shown good and substantial reason for the delay.
The second condition that the Applicants need to prove is whether there is arguable ground of appeal. I will reproduce this ground of appeal.
“GROUNDS OF APPEAL:
GROUND ONE – ERROR IN LAW:
The National Industrial Court erred in law in assuming jurisdiction over the Appellant/Applicants’ matter when there was no order of the Lagos High Court transferring the Appellant/Applicants’ suit in accordance with Section 24(3) of the National Industrial Court Act, 2006.”
The language of the ground of appeal as stated above and the purport of the proposed ground of appeal is purely challenging the jurisdiction of the lower Court to have assumed jurisdiction over

the matter which the Applicants submit that the Court should not have assumed jurisdiction. If I am right which I think I am, there could be a twist in this application. There is however one possible game-changer in this application. The only ground upon which the Applicant will be let off the hook on the issue of inability to explain the over 4 year period in not filing this application is when the proposed grounds of application deals with jurisdiction. The law is settled to the effect that if the ground of appeal borders on the jurisdiction the Court will no longer concern itself with the inability of the Applicant to explain the time-lapse in filing the application. I must state emphatically in line with the law that once the appeal deals with the issue of jurisdiction, it does not matter whether the above-stated conditions have been satisfied. In other words, once the proposed grounds of appeal deals with the issue of jurisdiction, it does not matter whether the Applicants could explain the delay. The issue of jurisdiction supersedes and swallows the other condition. Once the grounds of appeal deal with jurisdiction, a Court will not concern itself with

whether the Applicant was able to explain good and substantial reasons for the delay. See Jimoh vs. Minister FCT (2019)5 NWLR (Pt.1664)45 the apex Court held:
“In granting an application for an extension of time to seek leave to appeal, leave to appeal and extension of time to appeal, if the ground of appeal complains of lack of jurisdiction and it appears so, the Court would no longer inquire into the reasons for the delay.”
Similarly, the Supreme Court in Ngere & Anor vs. Okuruket & Ors (2017) 5 NWLR (Pt. 1559) 440; (2014) LPELR-22883 (SC) per Rhodes-Vivors, JSC at pages 23-25 held:
“I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. The applicants were right to apply for leave. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the

particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on –
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b) above he would be acting as he likes, and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray.
A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above the applicant is expected to give a detailed explanation for the

delay. He should show something that entitles him to the exercise of the Court’s discretion. E.g. pardonable inadvertence, mistake or negligence of counsel. See Adeyemi v. YRS Ike Oluwa & Sons Ltd 1993 8 NWLR (Pt. 309) p. 27; FHA v. Kalejaiye 2010 12 SC (Pt. iii) p. 1; Ibodo v. Enarofia 1980 5-7 SC p. 42; Kotoye v. Saraki 1995 5 NWLR (Pt. 395) p. 256; Akinpelu v. Adegbore & 3 Ors 2008 4-5 SC (Pt. iii) p. 75; Nwora v. Nwabueze 2011 15 NWLR (Pt. 1271) p. 467.”
The sole ground of appeal is obviously on jurisdiction and therefore as the cases cited above decided by the Supreme Court, the fact that the Applicants could not explain the delay in not filing this application does not matter. This is a game-changer. Though the Applicants could not explain the over 4 years the application was not filed, the fact that the ground of appeal is on the subject of jurisdiction, the application for leave will be granted.
The point raised by the Respondent that the proposed ground of appeal does not arise from the ruling will not fly or hold water as the ground of appeal is based on jurisdiction which can be raised at anytime and anyhow.

See Olutola vs. Unilorin (2004) LPELR-2632 (SC).
The Application succeeds and it is granted. The Appellants/Applicants have 21 days within which to file the notice of appeal. I make no order as to cost.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother EBIOWEI TOBI, JCA.
I agree with the judgment and adopt it as mine with nothing useful to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had a preview of the lead Ruling delivered by my learned brother, EBIOWEI TOBI, JCA wherein he granted the Appellant/Applicant’s Motion on Notice filed on 6/4/2017.

Whilst I wholly agree with the analysis, reasoning of my learned brother and the decision reached on the appeal, I only want to add a caveat that the issue of jurisdiction where raised as a ground of appeal, must be such that bona fide and genuinely arise from the decision against which leave and extension of time to appeal is being sought, lest, the Supreme Court’s decisions, a few of which my learned brother cited and relied upon in the lead Ruling, may be misconstrued as an open judicial license that would inexorably makes the granting of an

application such as in this instance, one that is virtually automatic regardless of the length of time it may have taken an Applicant to approach the Court of Appeal to seek leave and extension of time to appeal, (without setting forth good and substantial reasons for the delay). The invocation of a ground of appeal on issue of jurisdiction ought not to be construed as one that has a magic wand, and which will ensure the success of an application for leave to appeal out of time once it is raised. Such ground of appeal on issue of jurisdiction must bona fide, be such that genuinely arose from the decision being appealed against because, this Court has the jurisdiction to scrutinise the grounds of appeal being proposed (see the Supreme Court’s decision in PETER & ANR. V. STATE (1992) LPELR 2914 S.C., in order to ascertain, whether or not they are grounds which genuinely arose from the judgment and not fake grounds stated in the proposed Notice of Appeal as a ruse intended to deceive or mislead the Court in the exercise of its undoubted discretionary powers within the compass of the provision of Order 6 Rule 9(2) of the Court of Appeal Rules, 2016.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Subject to this little additions, I wholly subscribe to the decision reached in the lead Ruling and I abide with the consequential orders made.

Appearances:

DICKSON OSUALA ESQ. For Appellant(s)

UNNAEGBUNAM ESQ. – for 1st Respondent
ABSENT – 2nd Respondent For Respondent(s)