ARIODU & ORS v. NNAMDI & ORS (2022)

ARIODU & ORS v. NNAMDI & ORS

(2022)LCN/16255(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, March 02, 2022

CA/PH/356M/2020(R)

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

1. COMRADE SOLOMON N. ARIODU (Also Variously Known As Solomon Ariodu, Ariodu N. Solomom, Nwachukwu Ariodu, Nwachukwu Solomon Ariodu) 2. COMRADE PRINCWILL NNA (For Themselves & On Behalf Of Rivers State Chapter Of The Filters Senior Staff Association Of Nigeria, Momoku Central Unit /Branch Unit) 3. COMRADE AMBAIOWEI A AMBAIOWEI (President FISSAN) 4. COMRADE MORRISTER IDIBRA (General Secretary FISSAN) 5. INCORPORATED TRUSTEES OF FITTERS (Senior Staff Association Of Nigeria (FISSAN) APPELANT(S)

And

1. COMRADE OSI NNAMDI 2. COMRADE OSIAH BRIGHT 3. COMRADE NELSON OJOBO 4. COMRADE ALWELL CHINEDU NWIKIRI (For Themselves & On Behalf Of Aggrieved Members Of Fitters Senior Staff Association Of Nigeria, Omoku Central Unit/Branch Unit Of Obohia Omoku) 5. COMRADE STANLY O. SUNDAY RESPONDENT(S)

RATIO

CONDITIONS TO BE SHOWN BY AN APPLICANT TO SUCCEED IN AN APPLICATION FOR LEAVE TO APPEAL

The application is for an order granting leave to the applicants to appeal against the Judgment of the National Industrial Court of Nigeria, Yenagoa Judicial Division, Bayelsa State.

In an application for leave to appeal, the applicant must show:
(1) Good and substantial reason why the appeal ought to be heard and

THE DUTY OF THE COURT IN THE CONSIDERATION OF GROUNDS OF APPEAL PROPOSED BY AN APPLICANT

Ordinarily an application of this nature should not be opposed for the sake of doing so or because the opponent feels threatened. The overriding consideration must always be justice and fairness. The applicant is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal.
In CBN Vs Ahmed (2001) 11 NWLR (Pt.724) 368 at 393, the Supreme Court held:
“The duty of the Court in the consideration of grounds of appeal proposed by an applicant to support an application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is not the business of the Court at this stage to decide the merits of such grounds as are filed in support of the application.” See also Obikoya Vs Wema Bank Ltd (1989)1 NWLR (Pt. 96) 157 at 178 – 179 paragraphs G – A, where the Supreme Court said the grounds of appeal required to be exhibited are only to show why the appeal should be heard.
In the instant case, the applicants having shown arguable grounds of appeal on the proposed notice of appeal filed, there is nothing before the Appeal Court to prevent the exercise of discretion in favour of their application.
It will defeat the cause of justice to felter the right of access to Court by way of declining to grant an application of this nature. Moreso when the applicants have satisfied the two conditions for grant of this application. See University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt. 1) 156; Ikenta Best Nig. Ltd Vs A – G Rivers State(2008) 6 NWLR (Pt. 1084) 612 and Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt. 1528) 32. PER HASSAN, J.C.A.

TANI YUSUF HASSAN, J.C.A.(Delivering the Leading Judgement): This is a motion on Notice filed by the applicants on the 21st day of December, 2020, brought pursuant to Section 243 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 6 Rule 2 of the Court Appeal Rules, 2016 and under the inherent jurisdiction of this Honourable Court.

The application prays for an order of Court granting leave to the applicants to appeal or file a Notice and grounds of Appeal against the judgment of the National Industrial Court of Nigeria, Yenagoa Judicial Division delivered by Honourable Justice Bashar A. Alkali dated the 30th day of November, 2020 in suit No. NICN/YEN/14/2020.

The application is supported by a twelve paragraph affidavit deposed to by one Comrade Solomon N. Ariodu of Omoku town in Ogba-Egbema –Ndoni L.G.A. of Rivers State.

The grounds of the application are:
(a) That the judgment sought to be appealed against by the applicants is a decision of the National Industiral Court of Nigeria, Yenagoa Judicial Division;
(b) That the Judgment sought to be appealed against is neither a criminal matter nor related to Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) both of which lies as of right.
(c) That the subject matter of the Judgment (Trade Union related) not being one appealable as of right, only the Court of Appeal is vested with the powers to grant the requisite leave to appeal.
(d) That the proposed Notice and Grounds of Appeal for which the leave is sought raise recondite issues and also show prima facie good cause why the appeal should be heard.

The application is supported by a written address filed on the 29th of September, 2021. Attached to the application are two annextures marked as Exhibits “AA” and “BB”, the Judgment of the National Industrial Court and the Proposed Notice and Grounds of Appeal respectively.

Learned counsel for the applicants adopted the processes and urged the Court to grant the application.

In opposing the application, the respondents filed a counter affidavit on the 28th of July, 2021 but deemed properly filed on the 21st of September, 2021. The respondents’ further counter affidavit was filed on the 23rd of November, 2021. Both sworn to by one Comrade Osia Nnamdi of Ndoni LGA. The written address in support of the counter affidavit was filed on the 23rd of November, 2021 but deemed properly filed on the 8th of February, 2022.

Learned counsel for the respondents adopted the processes filed and urged the Court to dismiss the application.

Learned counsel for applicants formulated a lone issue for the determination of the application thus:
“Whether the Applicants are entitled to the exercise of this Court’s discretion in favour of a grant of this application.”

In arguing this sole issue, the applicants’ counsel submitted that the Court of Appeal having been vested with the powers to grant leave to the applicant to appeal against a decision, the Court is urged to exercise its discretion in favour of the grant of the application by granting leave to the applicants to appeal against the judgment of the National Industrial Court. The Court was referred to ACB PLC Vs Obmiami Bride and Stone (Nig.) Ltd (1993) 5 NWLR (Pt.294) 399 SC. He referred to Otti Vs Ogah (2017)7 NWLR (Pt. 1563) 1 at 31-32 paragraph H-C on the relevant consideration in the determination of an application for leave to appeal. That the application of this nature must show good and substantial reason why the appeal ought to be heard and the notice of appeal must show arguable grounds of appeal.

Learned counsel referred to Malari Vs. Leigh (2019) 3 NWLR (Pt. 1659) 332 on how the proposed ground of appeal can show good cause why the appeal should be heard as follows:
(a) Raise substantial issues of facts or law for the consideration of the Court;
(b) Cannot just be dismissed with a mere wave of the hand or totally lacking in substance;
(c) Evoke serious debate about the correctness of the decision of the Court below;
(d) Tax the intellect and reasoning faculties of the appeal judge; and
(e) Not to be frivolous.

Counsel submitted that the proposed grounds of appeal attached to the supporting affidavit particularly grounds 2,3 and 4 raised the constitutional issue of fair hearing which is a very fundamental and substantial issue in the dispensation of justice and which goes to the root of the correctness of the decision of the Court below. That grounds 1 and 5 also raised serious and substantial issues.

It is finally submitted that the proposed grounds of appeal have shown good cause why the appeal should be heard and paragraph 11 of the supporting affidavit clearly stated that the appeal will be diligently prosecuted if leave is granted. The Court is urged to grant the application.

The respondent’s counsel also identified a sole issue for the determination of this application which reads:
“Whether or not the application for leave to appeal by the Applicants who have acted in defiance of the orders/judgment of the trial Court can be entertained?”

Learned counsel for the respondents in response submitted on this sole issue that the applicants’ application is misplaced and in defiance of the orders/judgment of the trial Court, by continuing to appoint/extend the tenure of the officers to run the affairs of the Omoku Central Unit/Omoku Branch of the 5th respondent to the detriment of the respondents who have the judgment in their favour. Counsel drew our attention to the exhibits attached to the counter affidavit and the judgment sought to be appealed against. That the applicants who seek to appeal against the trial Court’s judgment, rather than comply with same, have severally shown gross impertinence and disrespect to the trial Court’s said judgment. He referred to the recent decision of this Court in Anambra State Government Vs Igbonwa (2021) 13 NWLR (Pt. 1794) 475 at 496 paragraphs C – F.

Learned counsel’s contention is that the applicants having intentionally disobeyed the judgment of the trial Court by going ahead to elect officers to run the affairs of the 5th applicant (Omoku Branch) are in contempt of the trial Court and deserved not to be heard and granted leave to appeal. The case of Zakirai Vs Muhammad (2017) 17 NWLR (Pt. 1594) 181 at 251 – 252 paragraphs H – B SC was referred to.

The Court is urged to dismiss the application with costs against the applicants.

The application is for an order granting leave to the applicants to appeal against the Judgment of the National Industrial Court of Nigeria, Yenagoa Judicial Division, Bayelsa State.

In an application for leave to appeal, the applicant must show:
(1) Good and substantial reason why the appeal ought to be heard and

(2) This must be exhibited by a notice of appeal showing arguable grounds of appeal for leave to be granted. The grant or refusal to grant leave to appeal to an applicant is a matter of discretion which is to be exercised judicially and judiciously taking all facts and the case into consideration. See Ukachukwu Vs PDP (2014) 4 NWLR (Pt.1396) 65.
Ordinarily an application of this nature should not be opposed for the sake of doing so or because the opponent feels threatened. The overriding consideration must always be justice and fairness. The applicant is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal.
In CBN Vs Ahmed (2001) 11 NWLR (Pt.724) 368 at 393, the Supreme Court held:
“The duty of the Court in the consideration of grounds of appeal proposed by an applicant to support an application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is not the business of the Court at this stage to decide the merits of such grounds as are filed in support of the application.” See also Obikoya Vs Wema Bank Ltd (1989)1 NWLR (Pt. 96) 157 at 178 – 179 paragraphs G – A, where the Supreme Court said the grounds of appeal required to be exhibited are only to show why the appeal should be heard.
In the instant case, the applicants having shown arguable grounds of appeal on the proposed notice of appeal filed, there is nothing before the Appeal Court to prevent the exercise of discretion in favour of their application.
It will defeat the cause of justice to felter the right of access to Court by way of declining to grant an application of this nature. Moreso when the applicants have satisfied the two conditions for grant of this application. See University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt. 1) 156; Ikenta Best Nig. Ltd Vs A – G Rivers State(2008) 6 NWLR (Pt. 1084) 612 and Braithwaite Vs Dalhatu (2016) 13 NWLR (Pt. 1528) 32.

The respondents opposition to the grant of the application is premised on the substantive matter which is pre-mature at this stage. The counter affidavit of the respondents with the attached exhibits thereto were based on the substantive matter before the lower Court which is the basis for asking for leave to appeal.

The application is praying the Court to exercise its discretion under Section 243 (3) of the Nigerian Constitutionand Order 6 Rule 2 of the Court of Appeal Rules 2016 to grant leave to appeal against the judgment of the National Industrial Court Yenagoa. The grounds predicting the application and the facts deposed to on the affidavit in support are very evident. The exhibits “AA” and “BB”, the judgment of National Industrial Court and the proposed Notice of Appeal respectively are also relevant as the grounds of appeal centred on the principle of fair hearing which cannot be waived off. That applicants constitutional right of appeal against the decision of the Court below cannot be taken away from them. See MFA Vs Inongha (2014) 4NWLR (Pt. 1397) 343 at 375- 376 and; Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) All FWLR (Pt. 403) 124 and Audu Vs. FRN (2013) 5 NWLR (Pt. 1348) 397 at 410 paragraphs G – H where the Supreme Court reiterated thus among others:-
“…the obligation to hear the other side of a dispute or the right of a party in dispute to be heard is so basic and fundamental a principle of our adjudicatory system in the determination of dispute that it cannot be compromised on any ground. See Nwokoro Vs Onuma (1990) 3 NWLR (Pt. 136) 22….”
In the circumstance, the application is granted and I make the following order:
1. Leave is granted to the applicants to appeal against the judgment of the National Industrial Court of Nigeria, Yenagoa Judicial Division delivered on the 30th day of November, 2020 in suit NO. NICN/YEN/14/2020.
2. The applicants are given fourteen days from today to file the Notice of Appeal at the lower Court i.e. the National Industrial Court Yenagoa judicial Division.

Parties to bear their respective costs.

PAUL OBI ELECHI, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Tani Yusuf Hassan, JCA.
I agree with him that the application be granted accordingly.
I also abide with the order as to no costs.
Appeal granted.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the ruling delivered by my learned brother, TANI YUSUF HASSAN, JCA.