ALPHA-BETA CONSULTING LLP v. ASSBIFI (2022)

ALPHA-BETA CONSULTING LLP v. ASSBIFI

(2022)LCN/16198(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, July 04, 2022

CA/ABJ/CV/277/2020(R)

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

ALPHA-BETA CONSULTING LLP APPELANT(S)

And

ASSOCIATION OF SENIOR STAFF OF BANKS, INSURANCE AND FINANCIAL INSTITUTIONS (ASSBIFI) RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPLICATION FOR ENLARGEMENT OF TIME IS GRANTED AT THE DISCRETION OF THE COURT

That is however, not the end of the matter, as an Application such as this will not automatically be granted on the ground, solely that the Respondent did not respond to it. In other words, an application such as this is not granted as a matter of course. It is granted or refused on the Court’s exercise of its judicial discretion, and which discretion must be exercised judicially and judiciously. See Iyalabani Co. Ltd. v. Bank of Baroda (1995) LPELR-1572 (SC); Akinpelu v. Adegbore & Ors. (2008) LPELR-354 (SC) and Iwuagwu v. Okoroafor & Ors. (2012) LPELR-20829 (CA). That is why it is stipulated in Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 that: “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 …”
It therefore follows that a person who seeks extension of time within which to seek leave to appeal must satisfy two mandatory conditions:
(a) that there are good and substantial reasons for failure to appeal within the prescribed period;
(b) that the grounds or proposed grounds of appeal must prima facie disclose good cause why the appeal should be heard.
It is the Applicant who has the burden of making available to the Court such material which will satisfy the Court as to exercise its discretion in his favour. See Akinpelu v. Adegbore (2008) 10 NWLR (Pt. 1096) 531; Micro-Lion Int’l (Nig.) Ltd. v. Gadzama (2009) 15 NWLR (Pt. 1162) 481; SCOA Nig. Plc. V. Omatsola (2009) 11 NWLR (Pt. 1151) 106 and F.C.M.B. Plc. V. N.I.M.R. (2009) 9 NWLR (Pt. 1147) 509. PER TSAMMANI, J.C.A.

WHETHER OR NOT THERE ARE DEFECTS WHICH CANNOT BE REMEDIED OR RECTIFIED

It is settled law, that there is no defect which cannot be remedied or rectified by an amendment save where the defect amounts to a nullity. In the instant case, the defect (if any) in the Notice of Appeal filed on 4/2/2020 and the amendment thereof does not invalidate or nullify the Notice of Appeal filed. See Order 7 Rule 8 of the Court of Appeal Rules, 2021. See also Enyibros Food processing Co. (Nig.) Limited & Anor. v. Nigeria Deposit Insurance Corporation & Anor (2021) LPELR-55330 (SC); Re Apeh & Ors. (2017) LPELR-42035 (SC) and Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554. PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice filed on 03/2/2022, the Applicant sought the following reliefs:
1. AN ORDER extending the time within which the Appellant/Applicant may seek leave to appeal against the final decision of the National Industrial Court of Nigeria contained in the judgment dated the 15th day of November, 2018 delivered by Honourable Justice E. N. Agbakoba, Hon. Justice O. Y. Anuwe and Hon. Justice R. B. Haastrup in Suit No: NICN/ABJ/68/2017 between Alpha – Beta Consulting LLP vs. Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI).
2. AN ORDER granting leave to the Appellant/Applicant to appeal against the final decision of the National Industrial Court of Nigeria contained in the judgment dated the 15th day of November, 2018 delivered by the Honourable Justice E.N. Agbakoba, Hon. Justice O. Y. Anuwe and Hon. Justice R. B. Haastrup in Suit No: NICN/ABJ/68/2017 between Alpha- Beta Consulting LLP vs. Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI).
3. AN ORDER extending the time within which the Appellant/Applicant shall file the Notice of Appeal and Grounds of Appeal against the final decision of the National Industrial Court of Nigeria dated the 15th day of November, 2018 delivered by Hon. Justice E. N. Agbakoba, Hon. Justice O. Y. Anuwe and Hon. Justice R. B. Haastrup in suit No: NICN/ABJ/68/2018 between Alpha-Beta Consulting LLP vs. Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI).
SUCH FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.

The Grounds upon which the Application is predicated are as follows:
i. The dispute between the Appellant/Applicant and the Respondent which was refused by the National Industrial Court of Nigeria by the Hon. Minister of Labour and Productivity was constituted as Suit No: NICN/ABJ/68/2017.
ii. The final decision of the National Industrial Court of Nigeria in the said suit is contained in the judgment dated November 15th, 2018 delivered by the Honourable Justice E N. Agbakoba, Hon. Justice O. Y. Anuwe and Hon. Justice R. B. Haastrup whereby the Court affirmed the award made in favour of the Respondent by the Industrial Arbitration Panel.
iii. The Appellant/Applicant sought and obtained leave of this Honourable Court on 22nd day of January, 2020 to appeal against the decision of the National Industrial Court of Nigeria.
iv. The Appellant/Applicant lodged its appeal against the decision of the National Industrial Court of Nigeria vide a Notice of Appeal filed on the 4th day of February, 2020.
v. The Appellant/Applicant was granted leave to amend its Notice of Appeal by an order made by this Honourable Court on 7th day of July, 2021. The Amended Notice of Appeal dated the 12th of July, 2021 was filed on the same day.
vi. In the course of the proceedings in Appeal No: CA/ABJ/68/2017 the attention of the Appellant/Applicant was drawn to a defect in the Notice of Appeal which emanated from the error on the part of counsel whose name on the Notice of Appeal was stated as “Adebayo Oriola” instead of his full name – Amos Adebayo Oriola.
vii. The Appellant/Applicant is desirous of exercising its right of appeal against the decision of the National Industrial Court of Nigeria in suit No: NICN/ABJ/68/2017 by filing a fresh Notice of Appeal but the time within which to seek leave to appeal against the decision and lodge the Notice of Appeal has expired.
viii. The inability of the Appellant/Applicant to seek leave to appeal against the decision and file the Notice of Appeal within time stemmed from its failure to discover the defect in the extant Notice of Appeal in earnest.
ix. The proposed grounds of appeal show good cause why the appeal should be heard as they relate to want of jurisdiction of the National Industrial Court of Nigeria in sitting as an Appellate Court over the Award made by the Industrial Arbitration Panel.

The Motion is supported by an Affidavit of 14 paragraphs deposed to by Amos Adebayo Oriola of learned Counsel for the Applicant. Annexed to the Affidavit are four documents marked as Exhibits AB1-AB4 respectively. Filed along with the Motion is a Written Address of five (5) pages as demanded by the Rules of this Court.

In opposition to the Application, the Respondent filed a Counter Affidavit of 17 pages deposed to by one John Awa Kalu, a Legal Practitioner in the Law Firm of Emeka Wogu & Co, counsel for the Respondent. Attached to the Counter Affidavit are two documents marked as Exhibits CA and CB respectively. A Written Address was also filed along with the Counter Affidavit. The Applicant then filed a Reply Address to the Respondent’s Address. It was filed on 7/4/2022.

Now in arguing the Application, learned counsel for the Applicant raised two issues to be determined as follows:
i. Is it possible for the Appellant/Applicant to file an application with the trinity prayers in this appeal when there is an objection to the competence of the appeal?
ii. Whether the Appellant/Applicant has satisfied the twin requirements for the grant of the prayers in the application?

In arguing the Motion, learned Counsel for the Applicant begin by citing the cases of Nalsa & Team Associates v. N. N. P. C. (1991) 8 NWLR (Pt. 212) 652 at 667-668 and Ani v. Effiok (2017) 8 NWLR (Pt. 1567) 281 at 304-305 to submit that, it is permissible for the Applicant to file its application for trinity prayers in this appeal.

Learned counsel for the Applicant went on to submit that, it is trite law that the conditions to be satisfied by a party asking for an extension of time within which to appeal are:
(a) good and substantial reasons for the failure to appeal within time; and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.

That, the Applicant has by paragraphs 8-13 of the Affidavit in support stated good and substantial reasons for the failure to appeal within time. That the Applicant had filed a Notice of Appeal with leave of the Court as shown in Exhibit AB2 and an Amended Notice of Appeal (Exhibit AB3). That by the time learned counsel realized his error, by the way, the name of counsel was written on the Notice of Appeal, the time within which to seek leave to appeal and file a proper Notice of Appeal had lapsed. The case of Bowaje v. Adediwura (1976) 6 SC 143 at 147 was cited in support.

Learned counsel for the Applicant then cited the case of Ngere v. Okuruket XIV (2014) 11 NWLR (Pt. 1417) 147 at 178 to further submit that, the Grounds of Appeal annexed to the Affidavit in support of the Motion has raised the issue of the jurisdiction of the lower Court to have determined the case. That the complaint on jurisdiction of the National Industrial Court of Nigeria, prima facie show good reason why the Application should be granted.

As stated earlier, the Respondent filed a Counter Affidavit and a Written Address in opposition to this Application. The Written Address consists of nine (9) pages. By Order 6 Rule 1(b) of the Court of Appeal Rules, 2021 stipulates that:
“Each Written Address shall not exceed five (5) pages…”
Having exceeded five (5) pages, it is apparent that the Respondent’s Written Address is incompetent. It is therefore struck out. The Written Address having been struck out, it would be seen that the Counter-Affidavit of the Respondent has been left bare. It has no address canvassing arguments on why the Application should be refused.

At the hearing of this Application on 25/4/2022, learned counsel for the Applicant, also pointed out that, the Respondent’s Counter Affidavit was filed out of time. We were accordingly urged to strike out the Counter Affidavit. Learned Counsel for the Respondent conceded that the Counter Affidavit was filed out of time but urged us to consider enlargement of time for the Respondent to file the Counter Affidavit.

By Order 6(1) of the Court of Appeal Rules, 2021, a process filed in response to a motion shall be filed within five (5) days of its being served. Where a party is out of time to file his process, like in the instant case, must file an Application seeking for extension of time to so file. In the instant case, there was no such Application which sought extension of time to file the Counter Affidavit. That therefore, makes the Counter Affidavit incompetent. It is accordingly struck out. The logical effect is that the Application was not opposed.

That is however, not the end of the matter, as an Application such as this will not automatically be granted on the ground, solely that the Respondent did not respond to it. In other words, an application such as this is not granted as a matter of course. It is granted or refused on the Court’s exercise of its judicial discretion, and which discretion must be exercised judicially and judiciously. See Iyalabani Co. Ltd. v. Bank of Baroda (1995) LPELR-1572 (SC); Akinpelu v. Adegbore & Ors. (2008) LPELR-354 (SC) and Iwuagwu v. Okoroafor & Ors. (2012) LPELR-20829 (CA). That is why it is stipulated in Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 that: “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 …”
It therefore follows that a person who seeks extension of time within which to seek leave to appeal must satisfy two mandatory conditions:
(a) that there are good and substantial reasons for failure to appeal within the prescribed period;
(b) that the grounds or proposed grounds of appeal must prima facie disclose good cause why the appeal should be heard.
It is the Applicant who has the burden of making available to the Court such material which will satisfy the Court as to exercise its discretion in his favour. See Akinpelu v. Adegbore (2008) 10 NWLR (Pt. 1096) 531; Micro-Lion Int’l (Nig.) Ltd. v. Gadzama (2009) 15 NWLR (Pt. 1162) 481; SCOA Nig. Plc. V. Omatsola (2009) 11 NWLR (Pt. 1151) 106 and F.C.M.B. Plc. V. N.I.M.R. (2009) 9 NWLR (Pt. 1147) 509. In the instant case, the Applicant deposed at paragraphs 3, 4, 5, 6, 7, 8 and 9 of the Affidavit in support of the motion as follows:
3. On the 15th day of November, 2018 the National Industrial Court of Nigeria delivered judgment in suit No: NICN/ABJ/68/2017 in favour of the Respondent. A Certified Copy of the judgment is attached herewith and marked Exhibit AB1.
4. I was instructed by the Appellant/Applicant to lodge an appeal against the final decision of the National Industrial Court of Nigeria in Suit No: NICN/ABJ/68/2017.
5. On the 22nd day of January, 2020 this Honourable Court granted leave to the Appellant/Applicant to appeal against the decision of the National Industrial Court of Nigeria. The Notice of Appeal which was prepared by me was filed on the 4th day of February, 2020. A copy of the Notice is attached and marked as Exhibit AB2.
6. The record of appeal was duly compiled and transmitted to this Honourable Court on the 11th day of March, 2020 when the appeal was entered as Appeal No: CA/ABJ/277/2020.
7. The Appellant/Applicant was granted leave to amend its Notice of Appeal by an order made by this Honourable Court on the 7th day of July, 2021. The Amended Notice of Appeal dated the 12th day of July, 2021 was filed on the same day. A copy of the Amended Notice of Appeal is attached and marked as Exhibit AB3.
8. In the course of the proceedings in this appeal, the Respondent pointed out the defect in the Notice of Appeal filed on the 4th day of February, 2020 where my name is stated as Adebayo Oriola instead of my full name; Amos Adebayo Oriola.
9. In view of the defect in the Notice of Appeal, the Appellant/Applicant is desirous of exercising its constitutional right of appeal by filing a fresh Notice of Appeal in order to ventilate its grievances against the decision of the National Industrial Court of Nigeria in Suit No: NICN/ABJ/68/2020.

Now, it would be seen from the depositions above, and particularly that in paragraphs 8 and 9 of the Affidavit, that the Applicant filed this Application in order to remedy the earlier Notice of Appeal filed on 4/2/2020. The defect in the said Notice of Appeal relate to the name of the Appellant’s learned counsel. That instead of signing the said Notice of Appeal in the full name of counsel; to wit: Amos Adebayo Oriola, it was signed as Adebayo Oriola. An Amended Notice of Appeal, filed with the leave of Court was similarly filed. In my view, this kind of defect (if indeed it is a defect) is a mere irregularity which can be cured by an Amendment or Further Amendment of the Notice of Appeal. The defect does not in anyway nullify the Notice of Appeal filed. It is settled law, that there is no defect which cannot be remedied or rectified by an amendment save where the defect amounts to a nullity. In the instant case, the defect (if any) in the Notice of Appeal filed on 4/2/2020 and the amendment thereof does not invalidate or nullify the Notice of Appeal filed. See Order 7 Rule 8 of the Court of Appeal Rules, 2021. See also Enyibros Food processing Co. (Nig.) Limited & Anor. v. Nigeria Deposit Insurance Corporation & Anor (2021) LPELR-55330 (SC); Re Apeh & Ors. (2017) LPELR-42035 (SC) and Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554.
I notice also that this Motion was filed when Appeal No: CA/ABJ/CV/277/2020 is subsisting. This Application having been filed during the pendency of Appeal No: CA/ABJ/CV/277/2020, is therefore incompetent.
On the whole, I am of the view that the Applicant has not disclosed any good and substantial reason why this Application should be granted. Furthermore, this Motion filed during the pendency of Appeal No: CA/ABJ/CV/277/2020, is incompetent. It is accordingly struck out.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, Haruna Simon Tsammani, JCA. I agree with the reasoning and conclusion made therein.

I also abide by the consequential orders contained in the ruling of my learned brother.
I make no order as to costs.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft, the ruling of the Presiding Justice, HARUNA SIMON TSAMMANI (JCA) just delivered.

I agree with the findings and conclusions made therein to the effect that this Application is incompetent, the Applicant having failed to disclose any good and substantial reason why it should be granted.

The Applicant’s Application is hereby struck out by me as well.