AKOSHILE v. NIMC & ANOR (2020)

AKOSHILE v. NIMC & ANOR

(2020)LCN/14809(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/A/689/2018

RATIO

PRELIMINARY OBJECTION: DUTY OF COURT TO DETERMINE THE PRELIMINARY OBJECTION FIRST

I shall determine the Preliminary Objection first as required by the Rules of Court because of the implications of a successful Preliminary Objection, the need to do so has been settled in the case of STATE V KAPINE & ANOR (2019) LPELR-49511(SC) which held thusly:
“It is incumbent to consider and determine Respondent’s Preliminary Objection to the competence of the appeal first. The essence of the preliminary objection is, if made out, to foreclose the hearing of the appeal and save the valuable time of the parties and indeed the Court. The resolution of the preliminary objection, therefore, will determine whether or not the appeal will be determined on the merit. To otherwise proceed on an incompetent appeal is to embark on a fruitless exercise since, without the necessary jurisdiction of considering the appeal, the Court’s eventual decision on same, no matter how well conducted the proceedings are, is ab initio null and void. See GABRIEL JIM JAJA V. COMMISSIONER OF POLICE, RIVERS STATE & ORS (2012) LPELR – 20621 (SC); and GENERAL MOHAMMED A. GARBA (RTD) V. MUSTAPHA SANI MOHAMMED & ORS (2016) LPELR – 40612 (SC).” PER NIMPAR, J.C.A.

APPEAL: THE RIGHT OF APPEAL

The right of appeal is a constitutional issue and there are two types, one which is appeal as of right and the second one is with leave of Court. It is quite clear that this appeal emanates from the National Industrial Court of Nigeria and there are two categories of appeals that can arise from any decision of the Court below. Section 243(2) & (3) of the Constitution provides for appeals from the lower Court thus:
“(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.”
Appeals to the Court of Appeal as of right are founded on grounds touching on fundamental right and appeals with leave on all other grounds of appeal. With particular relevance to the appeal in issue here, Section 243(2) & (3) of the 1999 Constitution as Amended is also relevant. It governs the jurisdiction of the Court of Appeal over appeals arising from the National Industrial Court and specifically on when an appeal as of right arises and when leave must be first sought and obtained. The said Section 243(2) and (3) of the 1999 Constitution (as amended) states thus:-
“(2) An appeal shall lie from the decision of the National Industrial Court as of 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 decision 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.” PER NIMPAR, J.C.A.
APPEAL: WHETHER ONE VALID GROUND OF APPEAL CAN SUSTAIN AN APPEAL

It is also settled that one valid ground of appeal can sustain an appeal and in this case, if ground two is found to meet constitutional requirements, it could therefore sustain the Notice of Appeal, seeOTTI & ANOR. VS. OGAH & ORS. (2017) LPELR-419869 (SC) wherein the apex Court held as follows:
“As rightly submitted by the learned senior counsel for the appellants/applicants, the law is well settled that one competent ground of law alone is enough to sustain an appeal to this Court. See NWAOLISAH VS. NWABUFOH (2011) 14 NWLR (PT. 1268) 600 AT 625 ALSO ABUBAKAR VS. DANKWAMBO (2015) 18 NWLR (PT. 1491) 213 AT 244.” PER NIMPAR, J.C.A.
APPEAL: EFFECT OF FAILURE TO OBTAIN LEAVE TO APPEAL WHERE ONE IS REQUIRED

It is settled law that, where no leave to appeal is obtained and where one is required before appeal, such appeal is incompetent and is liable to be struck out. That is the effect of failure to obtain leave of Court to appeal where same is required, see EHINLANWO VS. OKE (2008) LPELR-1054 (SC). This position is further emphasized in a plethora of cases, some of which are: IKWEKI & ORS. VS. EBELE & ANOR. (2005) LPELR-1490 (SC); NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt. 67) 718 and ABDULKARIM VS. INCAR (NIG.) LTD. (1992) LPELR-26 (SC) which held as follows:
“As no leave to appeal to the Court of Appeal was obtained, the appeal before this Court is incompetent. The Court of Appeal had no jurisdiction to entertain the appeal. The decision of the Court of Appeal is null and void.” PER NIMPAR, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

ALHAJI AMEEN A. AKOSHILE APPELANT(S)

And

1. NATIONAL IDENTITY MANAGEMENT 2. THE ATTORNEY GENERAL OF FEDERATION RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the ruling of the National Industrial Court of Nigeria, Abuja delivered by Hon. Justice M. N. ESOWE on the 7th day of July, 2014 wherein the Court below by its said judgment struck out the Appellant’s claim in Suit No NICN/ABJ/13/2014. The Appellant dissatisfied with the ruling, filed a Notice of Appeal dated 30th January, 2018 and filed on 6th February, 2018 setting out four grounds of Appeal.

Facts leading to this appeal are straight forward and amenable to brief summary in the following way. The Appellant by a Complaint on the 24th January, 2014 instituted an action against the Respondents and prayed for 10 reliefs, one of which includes a declaration that the purported retirement of the Appellant from service vide a letter dated October 27, 2009 is illegal, malicious, null and void and of no effect.

The Appellant’s brief settled by HASSAN LUQMAN, ESQ, dated the 8th February, 2019 was filed on 11th February and deemed on the 20th day of May, 2020. It distilled Two (2) issues for determination as follows:
1. Whether the trial Court was not wrong to have held

that the suit of the Appellant constitutes an abuse of the Court processes?
2. Whether the trial Court was right to have raised the issue of abuse of Court processes suo motu without calling on the parties to address to address it on same before resolving it against Appellant?

The 1st Respondent’s Brief settled by B.A. WALI, ESQ. dated 26th day of June, 2020 filed on the same day. It distilled Two (2) issues for determination as follows:
1. Whether the Appellant suit bearing Suit No. NICN/ABJ/13/2014 constitutes an abuse of Court processes having regard to the subsistence of judgment in Suit No. FHC/ABJ/CS/368/09 delivered by Federal High Court Abuja on 15/03/2012.
2. Whether the issue of abuse of Court process was raised by the trial Court suo motu.

The 2nd Respondent’s Brief settled by MAIMUNA LAMI SHIRU, ESQ. dated 15th day of September, 2020 filed on the same day. It distilled Two (2) issues for determination as follows:
1. Whether the Court below was right when it struck out the Appellant’s suit on the ground that the action constituted an abuse of Court processes with regard to the Judgment in Suit

No.FHC/ABJ/CS/368/09 delivered by the Federal High Court Abuja on the 15th of March, 2012 in this suit.
2. Whether the trial Court raised, suo motu the issue of abuse of Court Process and decide it without hearing from the parties and onus on complainant?

THE 2ND RESPONDENT’S PRELIMINARY OBJECTION
The 2nd Respondent also incorporated a Preliminary Objection the 2nd Respondent’s brief with arguments which can be found at pages 5 to 10 of the 2nd Respondent’s Brief settled dated 15th day of September, 2020 filed on the same day. A separate notice of preliminary objection was filed on the 15/9/2020 It distilled Two (2) issues for determination as follows:
Grounds upon which the objection is raised states thusly:
1. On the 30/1/2018 Mr. Hassan, Luqman Esq., took out a Notice of appeal challenging the decision of the National Industrial Court dated 7/7/2014 which struck out this suit for it amounting to an abuse of Court process.
2. The said notice of appeal was constituted on four distinct grounds which are not of a criminal cause or matter and are neither within the scope of a fundamental right action.

That the Notice of Appeal was filed on 6/2/2018 before this Honourable Court without complying with the statutory provision of Section 243(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which require all appeals from the National Industrial Court to the Court of Appeal to be with the leave of the Court of Appeal first obtained.
4. That the Notice of appeal filed in this appeal by the said Mr. Hassan Luqman Esq., is incompetent and void ab initio and consequently this appeal CA/A/689/2018 cannot stand in this circumstance.

The 2nd Respondent distilled 2 issues for determination under the Preliminary Objection, namely:
1. Whether or not the Appellant required the leave of this Honourable Court to file an Appeal against the decision of the National Industrial Court.
2. Whether or not there is a valid notice of appeal for determination before this Honourable Court.

The 2nd Respondent in arguing the two issues formulated for determination under the Preliminary Objection submit that the right of appeal is constitutional as enshrined in the 1999 Constitution as amended. Section 240 granted Appellate jurisdiction

to the Court of Appeal. Also Section 243 (2) of the 1999 Constitution as amended provides that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal such appeal shall be with the leave of the Court of the Appeal and it is restated in SKYE BANK V. IWU (2017) LPELR-42595(SC) and COCA-COLA (NIG) LTD V. AKINSANYA (2017) 17 NWLR (PT. 1593) 74. In SKYE BANK V. IWU (supra), the Court went further to state that the Appeal Court is not foreclosed to only issues on Fundamental Human Rights but all matters including the Appellants grievances accordingly this suit can be appealed, however, such must be with the leave of this Honourable Court.

The 2nd Respondent also submits that based on the principle of stare decisis the findings of the Supreme Court that for an appeal to lie on any subject matter outside the scope of a fundamental right action or a criminal case, the leave of this Honourable Court must be first obtained. But in the instant case, the Appellant filed a Notice of Appeal before this Honourable Court on the 6th of February, 2018 challenging the decision of the National Industrial Court which struck out his suit for

amounting to an abuse of Court process without first obtaining leave of this Honourable Court.

Continuing his submission, the 2nd Respondent states that ground two of the Notice of Appeal filed by the Appellant is maliciously concocted and developed to mislead this Honourable Court. It is trite law that when an opportunity is given to a party to respond to a claim against him, he is expected to debunk the allegations leveled against him. See Section 36(2) (a) of the 1999 Constitution. The Appellant had an opportunity to respond to the 1st Respondent’s written address in support of Preliminary Objection but failed to respond which amount to admission of the point of law raised. The issue of abuse of Court process raised by the 1st Respondent in his written address in support of Preliminary Objection highlighted the multiplicity of suit filed by the Appellant when he abandoned the enforcement of a Judgment of the Federal High Court in suit No.: FHC/CS/623/08 but pursue a fresh action in the National Industrial Court in suit No.: NICN/ABJ/13/2014. It is not possible for the trial Court to raise the issue of abuse of Court process suo moto without

availing parties an opportunity to address the Court on it before determining same.

Furthermore, the 2nd Respondent states that the case Fundamental right does not start and end with the word “fair hearing” as stated in OYI V. GOVERNOR OF CROSS RIVER STATE (2018) LPELR-45880(CA). The Appellant owes this Honourable Court duty to prove the existence of the fundamental right and the infringement done by the decision of the Court below. Consequently, ground two of the Notice of Appeal does not qualify as fundamental right action therefore requires the leave of this Honourable to appeal against. See SKYE BANK V. IWU (supra).

Finally, the 2nd Respondent humbly submits that outside the scope of a fundamental right action and a criminal case, the leave of this Court is a condition precedent that must be obtained before a Notice of Appeal is filed. The 2nd Respondent urge the Court to hold so.

ISSUE TWO
The 2nd Respondent submits that it is trite law, when the leave of Court is required for the performance of an act, failure to obtain it makes any act performed incompetent and liable to be struck out no matter how well couched.

See EHINLANWO V. OKE (2008) LPELR-1054 (SC). The Appellant at no time complied with the provisions of Section 243(3) of the 1999 Constitution which required the leave of the Court of Appeal to be obtained before filing a notice of appeal and failure to obtain leave renders the appealed filed incompetent. See NWAOLISAH V. NWABUFOH (2011) 14 NWLR (PT.1268). Based on the principle of stare decisis, the 2nd Respondent humbly submits that:
1. Leave to file the Appellant’s Notice of Appeal was required by the Constitution which operates as the grund norm for a party to appeal a decision of the kind delivered by the trial Court.
2. That the Appellant’s failure to obtain the leave of this Court rendered this appeal incompetent ab initio and consequently same should be struck out.

APPELLANT’S REPLY TO THE PRELIMINARY OBJECTION
The Appellant filed a Reply Brief in which he responded to the preliminary objection brought by the 2nd Respondent and adopted 2nd Respondent issues for determination. The Reply Brief was filed on the 21st day of September, 2020 and dated the same date.

The Appellant submits that he duly filed his Notice of

Appeal on the 6/2/2018 within the time extended by the Court time and before the leave was granted, this Honourable Court considered the proposed Notice of Appeal attached to the application and found merit in the application. Ground two of the Notice of Appeal is an issue of fair hearing which is a fundamental right guaranteed by Section 36 of Constitution of the Federal Republic of Nigeria 1999 as amended, citing OLUGBENGA DANIEL V. FEDERAL REPUBLIC OF NIGERIA (2014) 8 NWLR (PT. 1410) and UBA V. ORANUBA (2014) 2 NWLR (PT. 1390). In the case of LPDC V. FAWEHINMI (1985) 2 NWLR (PT. 7) provides that “fair hearing cannot be displaced by legislation, however unambiguously worded”. See also THE STATE V. OLU ONAGORUWA (1992) 2 NWLR (PT. 221). Ground two in the Notice of Appeal is founded on fundamental right which requires no leave of this Honourable Court as admitted by the 2nd Respondent and by Section 243(2) of Constitution of the Federal Republic of Nigeria 1999 as amended and the case of SKYE BANK V. IWU (2017) LPELR-42595 (SC). Also the claims of the Appellant in the National Industrial Court borders on violation of his fundamental rights as

contain in its Complaint filed (see P. 2-3 of the Records).

Continuing his submission, the Appellant argued that the 2nd Respondent challenged ground two of the grounds of Appeal and which amounts to arguing the Appeal, a practice and the Court frowns at, relied on ZENITH BANK & ANOR V. OLIMPEX (NIG) LTD (2018) LPELR-45573(CA). The Appellant also submits that leave is not required on matters that borders on the principle of fundamental right and prays urge the Court to so hold.

ISSUE TWO
The Appellants submits that the 2nd Respondent contend that this appeal is incompetent having failed to obtain leave but that has been settled in the argument canvassed in issue one. And if the 2nd Respondent has any grouse with the meritorious consideration of the application for extension of time by this Honourable Court, the only option is to appeal the order and not to file a Preliminary Objection. See SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD V. AMADI (2011) 14 NWLR (PT. 1266) and CHIJOKE AZUBUIKE V. ALHAJI AHMAD HASSAN (2014) NGCA.

Finally, the Appellant submits that on the strength of the fundamental right and the issue of fair hearing

raised by the Appellant, there is no basis for leave before appealing the decision of the National Industrial Court to this Court. This appeal is valid and prayed the Court to dismiss the 2nd Respondent’s Preliminary Objection with substantial cost.

RESOLUTION OF PRELIMINARY OBJECTION
I shall determine the Preliminary Objection first as required by the Rules of Court because of the implications of a successful Preliminary Objection, the need to do so has been settled in the case of STATE V KAPINE & ANOR (2019) LPELR-49511(SC) which held thusly:
“It is incumbent to consider and determine Respondent’s Preliminary Objection to the competence of the appeal first. The essence of the preliminary objection is, if made out, to foreclose the hearing of the appeal and save the valuable time of the parties and indeed the Court. The resolution of the preliminary objection, therefore, will determine whether or not the appeal will be determined on the merit. To otherwise proceed on an incompetent appeal is to embark on a fruitless exercise since, without the necessary jurisdiction of considering the appeal, the Court’s eventual decision on same, no

matter how well conducted the proceedings are, is ab initio null and void. See GABRIEL JIM JAJA V. COMMISSIONER OF POLICE, RIVERS STATE & ORS (2012) LPELR – 20621 (SC); and GENERAL MOHAMMED A. GARBA (RTD) V. MUSTAPHA SANI MOHAMMED & ORS (2016) LPELR – 40612 (SC).”

The 2nd Respondent formulated two(2) issues for determination and after a careful consideration of the ground upon which the objection was taken and the submissions of both counsel, I shall resolve the Preliminary Objection seamlessly to avoid repetition because they are inter related.

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.”
Appeals to the Court of Appeal as of right are founded on grounds touching on fundamental right and appeals with leave on all other grounds of appeal. With particular relevance to the appeal in issue here, Section 243(2) & (3) of the 1999 Constitution as Amended is also relevant. It governs the jurisdiction of the Court of Appeal over appeals arising from the National Industrial Court and specifically on when an appeal as of right arises and when leave must be first sought and obtained. The said Section 243(2) and (3) of the 1999 Constitution (as amended) states thus:-
“(2) An appeal shall lie from the decision of the National Industrial Court as of 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 decision 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.”
The provisions reproduced above are to my mind, very clear and devoid of any ambiguity. My understanding of same is that except for the right of appeal under Section 243(2) therein, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any cause or matter in which jurisdiction is conferred on the National Industrial Court, it shall only be as prescribed by an Act of the National Assembly. Provided, however that where such Act or law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal on any other matter, such appeal shall be with the leave of the Court

of Appeal. In other words, except for the provisions of Section 243(2) wherein an aggrieved party can appeal as of right to this Court, on questions of fundamental rights as contained in Chapter IV of the 1999 Constitution as it relates to matters upon which the National Industrial Court has jurisdiction; an appeal on any other matter shall only be as prescribed by an Act of the National Assembly. See again SKYE BANK VS. IWU (SUPRA).
Similarly, Section 243(2), (3) & (4) of the Constitution introduced by Section 5 of the Third Alteration Act, deals specifically with the manner in which the right of appeal from decisions of the National Industrial Court may be exercised, Sub-section (2) is clear – that an appeal on questions of fundamental rights as contained in Chapter IV of the Constitution, as it relates to matters upon which the National Industrial Court has jurisdiction, is of right. Sub-section (3) provides:
“243(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.”
There is therefore no doubt that there are two(2) categories of appeals that can come to this Court from the National Industrial Court as constitutionally provided for. The question here therefore, is whether the grounds of appeal herein are grounds complaining of fundamental rights breaches or grounds other than fundamental rights breaches. They must of necessity be complaints against the ruling of the trial Court and not the claim or complaint against the Respondents with regards to their handling of the retirement.
It suffices to state at this stage that the suit was not initiated under the Fundamental Rights (Enforcement) Rules because that class of litigation can only be determined by any High Court as recognized by the Constitution. Any fundamental right issue here must arise from the trial Court’s act of commission or omission. The Notice of Appeal filed by the Appellant is at pages 80-83 of the Record of appeal.
That upon a holistic interpretation of Sections 240 & 243(1) & (4) of the 1999 Constitution, as amended,

all decisions of the National Industrial Court are appealable to the Court of Appeal as of right in criminal matters (Section 254C (5) & (6) and fundamental rights cases) and with leave of the Lower Court in all other civil matters where the National Industrial Court has exercised its jurisdiction. See the case of UZOUKWU VS. EZEONU II (1991) 6 NWLR (PT. 200) 708; EHIRIM VS. I.S.I.F.C (2008) 15 NWLR (PT. 1111) 443 AT 482 wherein it was aptly held that: “the issue for determination raises the fundamental question of jurisdiction. See also the case of OYI V GOVERNOR OF CROSS RIVER STATE & ORS (2018) LPELR-45880(CA).
Looking at the grounds of appeal filed by the Appellant is the first port of call in the quest to determine if there is a ground touching on fundamental right that can sustain this appeal from the National Industrial Court. The Notice of appeal is at pages 148 of the Records of Appeal, it donates 4 grounds of appeal. The Appellant contended that ground 2 which is a complaint about the trial Court’s failure to hear parties before deciding that the suit was an abuse of Court process, Appellant contended

that it was a breach of his right to fair hearing. A closer look at the grounds shorn of particulars reveals as follows:
GROUND ONE:
The learned trial Judge of the National Industrial Court of Nigeria misdirected himself when he held that the suit of the Appellant against the Respondents constitute an Abuse of Court processes. The Court held: the present suit is an abuse of Court processes and cannot be allowed to stand.
GROUND TWO:
The learned trial Judge of the National Industrial Court erred in Law when he failed to call on parties to address the Court before holding that the suit constitutes abuse of Court processes.
GROUND THREE:
The learned trial Judge of the National Industrial Court erred in law when he held that the suit constitute an abuse of Court processes. The Court held: A deeper reading disclosed that parties thereto are the Claimant herein (A. A. Akoshile) vs. Federal Civil Service Commission (2nd defendant herein) the reliefs sought and granted are on all force with the present suit. The Court wonders why this suit has come up again.
GROUND FOUR:
The Ruling is against the weight of evidence.

The only ground of Appeal that has any semblance to the issue touching on fundamental right complain is ground two where the Appellant alleged he was not heard before the Court below decided that the suit was an abuse of Court process. Failure to give parties an opportunity to address the Court on an issue (allegedly) raised by the Court suo motu is definitely a breach of right to fair hearing and fair hearing is a critical right in any adjudication. Fair hearing is part of the fundamental rights and therefore, ground two can be filed as of right and without leave of Court.
It is also settled that one valid ground of appeal can sustain an appeal and in this case, if ground two is found to meet constitutional requirements, it could therefore sustain the Notice of Appeal, seeOTTI & ANOR. VS. OGAH & ORS. (2017) LPELR-419869 (SC) wherein the apex Court held as follows:
“As rightly submitted by the learned senior counsel for the appellants/applicants, the law is well settled that one competent ground of law alone is enough to sustain an appeal to this Court. See NWAOLISAH VS. NWABUFOH (2011) 14 NWLR (PT. 1268) 600 AT 625 ALSO ABUBAKAR VS. DANKWAMBO

(2015) 18 NWLR (PT. 1491) 213 AT 244.”
However, the other three grounds of appeal named on the Notice of Appeal require leave of the Court of Appeal to be competent for determination. Now, did the Appellant seek leave to raise those grounds of appeal which are not grounds touching on fundamental rights? Perusing the record of appeal, there was no application for leave to appeal that was filed and granted; therefore no leave of this Court is part of the record. What is before the Court is an order extending the time within which the Appellant can appeal to the Court of Appeal. This is strikingly different from an application seeking leave to appeal on grounds other than grounds of fundamental rights. No such prayer and no such order was made. There is therefore no leave to appeal in respect of grounds 1, 3, and 4. Failure to seek leave has significant consequences.
What is the import of when leave is the requirement before a Notice of Appeal is filed. It is settled law that, where no leave to appeal is obtained and where one is required before appeal, such appeal is incompetent and is liable to be struck out. That is the effect of failure to

obtain leave of Court to appeal where same is required, see EHINLANWO VS. OKE (2008) LPELR-1054 (SC). This position is further emphasized in a plethora of cases, some of which are: IKWEKI & ORS. VS. EBELE & ANOR. (2005) LPELR-1490 (SC); NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt. 67) 718 and ABDULKARIM VS. INCAR (NIG.) LTD. (1992) LPELR-26 (SC) which held as follows:
“As no leave to appeal to the Court of Appeal was obtained, the appeal before this Court is incompetent. The Court of Appeal had no jurisdiction to entertain the appeal. The decision of the Court of Appeal is null and void.”
There is therefore no valid appeal before this Court with respect to Grounds 1, 3 and 4 because they are incompetent and must be struck out. This Court lacks the jurisdiction to determine Grounds 1, 3 and 4, they are hereby struck out for want of jurisdiction having been filed without leave of Court. Where a statute specifies that leave is required, failure to so obtain leave also divests the Court of jurisdiction. And jurisdiction as a threshold issue is fundamental in every adjudication.

On the 2nd Respondent’s issue two under the Preliminary

Objection, I agree that the arguments canvassed by the learned counsel for the 2nd Respondent touches on the substantive appeal. It is not appropriate to resolve issues for determination in the appeal at a preliminary stage, see AG FEDERATION V AG ABIA STATE & ORS (2001) LPELR-24862(SC) where the apex Court held:
“I think the less one says at this preliminary stage of the case the better, lest one falls into the not uncommon trap of prematurely making observations which might appear to prejudge the issues in the substantive suit yet to be decided by the Court. The law does not permit that (see for example Egbe v. Onogun (1972) 1 All NLR (Part 1) 95; Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Part 26) 35).” Per KUTIGI ,J.S.C.

The Preliminary Objection succeeds in part, only grounds two survives while grounds 1, 3 and 4 are struck out.

Having sustained the Preliminary Objection in part, the Court shall proceed to determine the sole surviving ground of appeal, ground two only. Ground two generated issue two, the Appellant formulated issue one from ground one only, which therefore means that grounds 3 and 4 were deemed abandoned having no

issue distilled from the grounds, see OGBE V. ASADE (2009) LPELR-2275(SC) where the apex Court held that:
”Again where no issue/issues are distilled or raised from a ground or grounds of appeal, such ground or grounds is or are deemed to have been abandoned and should be struck out. Thus, an issue which has no ground of appeal to support it, is worse than useless.”

APPELLANT’S SUBMISSION:
ISSUE TWO
The Appellant submits that the trial Court erred in law when it failed to call parties to address it on the issues of abuse of Court process before striking out the suit. He cited USMAN V. BABA (2005) 5 NWLR (PT. 917) to support his submission. The 1st Respondent raised two issues in it Notice of Preliminary Objection and the Appellant raised four issues in responding to the Preliminary Objection as contain in p. 95 and 133 of the records. None of the issues raised by parties touches on abuse of Court process. The trial Court therefore, holds a duty to invite parties to address it on the issue of abuse of Court process having raised it suo motu. He cited DAIRO V. U.B.N (2007) 16 NWLR (PT. 1059) and NWANA V. F.C.D.A (2007) 11

NWLR (PT. 1044) to support his submission.

Furthermore, the Appellants prays this Honourable Court to hold that the trial Court was not right to have raised and resolved issue of abuse of Court process against the Appellant suo motu without inviting the parties to address it on same and that the Appellants case at the trial Court does not constitutes an abuse of Court process as the parties and claims in the suit are not same.

Finally, the Appellant prays this Honourable Court to grant his reliefs by setting aside the decision of the trial Court and remit the Appellant’s suit back to the trial Court for trial before another Judge.

THE 1ST RESPONDENT’S SUBMISSION
ISSUE TWO
The 1st Respondent submits that the issue of abuse of Court process was not raised by the trial Judge suo motu. The 1st Respondent’s written address in support of Notice of Preliminary objection raised and argued the issue of abuse of Court process. The Appellant in replying to the 1st Respondent’s written address, failed to respond to the issue of abuse of Court process raised by the 1st Respondent and this entitles the trial Court to deem

that the Appellant has agreed with the 1st Respondent’s position on the issue. See NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209). He also submits that the steps taken by the trial Court on the issue of abuse of Court are in consonance with the law. See AKEREDOLU V. ABRAHAM (2018) 10 NWLR (PT. 1628).

Continuing his submission, the 1st Respondent submits that there is no where the Appellant state in his Notice of Appeal that he suffers miscarriage Justice and this Court cannot speculate. He also submits that the Court has a duty to look at the document in the file relative to proceedings before her and act on it whether the document was formally tendered as exhibit in the case or not. See DAGGASH VS. BULAMA (2004) 14 NWLR (PT. 892) and OYEWOLE V. AKANDE (2009) 15 NWLR (PT.1163). Finally, the 1st Respondent submits that the trial Court did not raise issue of abuse of Court process suo motu. And the urge this Honourable Court to dismiss this appeal and uphold the decision of the trial Court.

THE 2ND RESPONDENT’S SUBMISSION
ISSUE TWO
The 2nd Respondent submits that the term suo motu means when a Judge raises an issue on his

own motion. The issue of abuse of Court process cannot be said to have being raised suo motu by the Court. The 1st Respondent raised the issue of abuse of Court process in his written address in support of Notice of Preliminary Objection. In law, a Court has no jurisdiction to raise an issue suo motu and make out a case for any of the parties before it, but where a Court raises any issue suo motu, it must give an opportunity to the parties or their counsel to be heard on the issue so raise before pronouncing on it. However, there are exception where the Court can raise an issue suo motu without hearing from the parties. See UZOHO & ORS V. NATIONAL COUNCIL ON PRIVATIZATION & ANOR (2007) LPELR 8258 (CA), N.N.P.C. V. ROVEN SHIPPING LTD (2019) 9 NWLR (PT. 1676) and CHIEF DENNIS AFOR OGAR & 2 ORS V. CHIEF IGBE & 3 ORS (2019) 9 NWLR (PT. 1678) SC.

Continuing its submission, 2nd Respondent states that assuming without conceding that the trial Court raised the issue of abuse of Court process without allowing the parties to address the Court on it, it would not have changed the decision of the Court. The Appellant have not showed that failure to

hear him on the point occasioned some miscarriage of Justice to him to him neither has he showed that the Judgment was perverse.

Finally, the 2nd Respondent urge this Honourable Court to resolve the issues raised in this Appeal in favour of the Respondents and also to uphold the decision of the trial Court and dismiss this appeal with huge cost.

RESOLUTION
The Appellant alleged that the trial Judge raised the issue of abuse of Court process suo motu and resolved same without calling on parties to address it before determination. That, the Appellant submitted it breached his fundamental right, he relied on USMAN V BABA (SUPRA). He admitted that the 1st Respondent raised a Preliminary Objection (see page 95 of the record) but said the issue of abuse of Court process was not raised therein. The 1st Respondent referred to pages 100-101 of the Records of Appeal to show that the issue of abuse of Court process was mentioned. I have gone through the 2 pages mentioned by the 1st Respondent and also the 2nd Respondent and I cannot see in any of the lines of the record at those 2 pages where the words abuse of Court process was canvassed by the 1st

Respondents and the 2nd Respondent was also wrong in sheepishly following the 1st Respondent to refer the Court to those pages.
However, the Appellant must identify where and how the said issue was raised by the Court suo motu. It is trite that a Court has the jurisdiction to raise an issue suo motu but conditional on giving parties an opportunity to address the Court before deciding the issue so raised, there is how ever some exceptions, see ANYA V ANYA & ORS (2020) LPELR-49386(SC) held:
“Another gravamen of the Appellant is that the lower Court raised the issue of forgery suo motu without affording the parties the opportunity to address it. The law is well entrenched further that the Appeal Court has the discretion to take on a point suo motu and the general principle is that the parties must be given an opportunity to be heard. However, authorities have shown that the failure to observe this principle would result into a misdirection which will be over-turned only if there has been a substantial miscarriage of justice. Per OGUNBIYI, JSC in DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR – 43710(SC).

The facts in this case do not show that this was the case. The Appellant’s case before the trial Court was founded on the fact that the Will left by the deceased was forged wherein in proof or otherwise, a handwriting expert testified, which was in favour of the Respondents. How then did the issue of forgery become fresh on appeal? The lower Court being confronted with the whole facts and as reflected in the record, discovered that the issue of forgery was well founded and cannot be a new issue calling for address of parties. I think the Appellant is lost as to the distinction between raising an issue suo motu and looking into the case/file by the Court to determine a matter. This was touched by Per OKORO, JSC in AKEREDOLU V. ABRAHAM & ORS (2018) LPELR-44067(SC), when he inter alia proposed that: “I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the learned trial Judge. Rather, it was exposed to the Court by the learned Senior counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is

shown to be located in Abuja. A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct. This is nothing but a foul cry as the records do not

demonstrate it. Besides, where is the injustice wrought against the Appellant, the case of the Appellant is far from what he is asserting.” Per ABBA AJI, J.C.A.
It is to be noted that before a Court can be accused of raising an issue or matter suo motu, the issue or matter must be absent in the litigation between the parties. In other words, once an issue or matter or fact exist in the litigation, the Court will be perfectly entitled to draw inference from the stated facts and no charge of raising same suo motu can hold. See IKENTA BEST NIG LTD V. ATTORNEY GENERAL, RIVERS STATE (2008) 6 NWLR (pt 1084) 642 A- C.
The exceptions to the general rule include;
1. Where the issue raised relates to the jurisdiction of the Court.
2. Where the parties ignored or were not aware of a statute or the provision of the Constitution that has bearing on the case; and
3. Where looking at the face of the record, serious issue of unfairness of the proceeding is disclosed.
See GBAGBARIGHA V TORUEMI (2013) 6 NWLR (pt 1350) 289; OMOKUWAJO v F R N (2013) 9 NWLR (pt 1359) at 332 and ADETULA V AKINYOSOYE (2017) 6 NWLR (pt 1592) 492.

The 2nd Respondent as part of her arguments emphasized and dwelt on the exceptions and the need for the Appellant to establish that it suffered miscarriage of justice. The Court will first have to determine if the issue exist in the claim before the trial Court. The Court is imminently qualified to look into all documents in a file and draw inference from it to determine an issue, see EROMOSELE V FRN (2018) LPELR-43851(SC) where the apex Court held thusly:
“The lower Court was entitled to look into any document in its record and make use of it in order to arrive at a just decision. When a document is in the record of the Court, it cannot be a new issue on which a judge is precluded from looking at. This Court has in a number of decided cases held that a Court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it. See Fumodoh vs. Aboro (1991) 9 NWLR (Pt.214) 2010 at 229; Agbareh & Anor vs Mimra & 2 Ors (2008) 2 NWLR (Pt.1011) 378 at 411 – 412; Badejo vs Minister of Education (1996) 9 – 10 SCNJ 51.” Per GALUMJE, J.S.C.
The Court in determining the Preliminary Objection filed by the

1st Respondent, the Court below discovered the Judgment of the Federal High Court delivered 15th March, 2012 and the ruling held thus:
“The Court has carefully gone through the suit before it, the Preliminary Objection and all processes filed and submissions made by the Parties in the course of going through the file, the Court saw in its records a valid and subsisting judgment of the Federal Court of Abuja, delivered on the 15th March, 2012 by Justice A. Bello. A deeper reading disclosed that the parties thereto are the Claimant herein (A. A. AKOSHILE VS FEDERAL CIVIL SERVICE COMMSSION (2ND Defendant herein). The Reliefs sought and granted are on all force with the President suit. The Court wonders why this suit has come up again. All that the Claimant needed to do was to apply to the FHC for enforcement of the Judgment of the Court which certainly has not been appealed against. The present suit is an abuse of Court processes and cannot be allowed to stand. It is hereby struck out. I shall make any (sic) order as to cost.”
The Appellant attached the Judgment relied upon by the trial Court to hold that the suit was an abused of Court

process. The Appellant having obtained Judgment on the same facts, the suit was therefore abuse of process. It is obvious therefore that the fact leading to the decision that the suit was abused of Court process was deeply rooted in facts in the case. In other words, once an issue or matter or fact exist in the litigation, the Court will be perfectly entitled to draw inference from the stated facts and no charge of raising same suo motu can hold. See IKENTA BEST NIG LTD V. ATTORNEY GENERAL, RIVERS STATE (2008) 6 NWLR (pt 1084) 642 A- C.
That being the case, the Court below cannot be said to have raised the issue of abuse of Court process suo motu when it was the document introduced for reliance by the Appellant that the trial Court relied to make a finding. It was part of the case for the Appellant.

Furthermore, the Appellant failed to show how the finding occasioned a miscarriage of Justice. A party cannot just use the term as a magic wand to set aside the decision of the Court below. He must proceed to show how the decision occasioned a miscarriage of Justice. If the raising and resolution of an issue is done suo motu and without occasioning any

miscarriage of Justice, the Appellate Court will not find the complaint as meritorious. In the case light, the only issue for determination in this appeal is resolved against the Appellant.

The Appeal lacks merit and is hereby dismissed. The Ruling of the trial Court delivered on the 7th July, 2014 is hereby affirmed.
I make no order as cost.

PETER OLABISI IGE, J.C.A.: I agree

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading the draft of the lead judgment delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I agree with the reasoning and conclusion reached therein and therefore also affirm the judgment of the trial Court delivered on the 7th July, 2014.

I make no order as to costs

Appearances:

LUGMAN HASSAN ESQ., with him, YUNNIS MITALA ESQ. and DAUDE AJADUS ESQ. For Appellant(s)

MAIMUNA LAUNI SHIRU ESQ., with him, EBUNOPHIRA OLAOLABI ESQ. and COVENANT ASHIRI ESQ. – for 2nd Respondent For Respondent(s)

LawCare Nigeria

AKOSHILE v. NIMC & ANOR (2020)

admin

YOU MAY HAVE MISSED

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

RESOLVING DISPUTES BETWEEN BUSINESS PARTNERS IN NIGERIA

Securing Loans and Investment: Legal Considerations for Nigerian Businesses

admin

Related Story

YOU MAY HAVE MISSED