ASTAC NIGERIA LIMITED & ANOR v. ENG EWALD SCHIFFLER & ORS
(2019)LCN/13523(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/AK/65/2019(R)
RATIO
DIFFERENCE BETWEEN A FINAL ORDER AND AN INTERLOCUTORY ORDER
The dismissal order entered is no doubt a final order and not an interlocutory order. There was nothing left to be further done by the Court at the trial Court and by that Court in respect of the order. It was already functus officio and the Applicant can appeal therefrom and against same without leave, it being a final order.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
APPEAL: WHETHER THE APPELLATE COURT CAN GRANT AN APPLICATION IF LEAVE WAS NOT SOUGHT TO AMEND A NOTICE OF APPEAL AND TO EXTEND TIME WITHIN WHICH TO FILE BRIEF OF ARGUMENT BY APPELANT
Leave, not having been sought and granted, before the filing of the purported appeal show-cased by Exhibit 1 to the instant application seeking to amend the said notice of appeal and to have time extended to file an Appellants Brief of Argument and deeming orders in respect of those processes, can this Court in law and equity in the circumstances of this case grant any of the prayers sought?
Yes, I do think so. The Respondents learned counsel is wrong to urge that the interest of justice is against the grant of this application. It will be unconscionable not to grant an application for an amendment to a notice of appeal which has been validly and competently filed, by the fulfillment of the conditions precedent as ordained by law.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
WHEN A LEAVE IN AN APPEAL AS IT IS SUPPOSED TO
There is no doubt that this Court being the Court where the appeal was filed on 31/12/2018 (which is Exhibit 1); see Osareren v. FRN (2018) (pt. 1627), 10 NWLR 221 @ 233 H per Eko, JSC on the Courts being Courts of equity. Though leave not sought, I am afraid this Court is not a knight errand that poses as a tyrant that declines to grant reliefs solicited and justified by law; I shall not close my eyes to the appeal filed, as it would be a desecration of the unbiased and independent constitutional and expected posture of an arbiter. To do so, it would be unconstitutional and abuse of judicial power and privilege.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. ASTAC NIG. LTD
2. DR ANTON MIMRA Appellant(s)
AND
1. ENG EWALD SCHIFFLER
2.COMPTROLLER GENERAL, NIGERIA IMMIGRATION SERVICE ABUJA
3. SHERRIFF OF NATIONAL INDUSTRIAL COURT Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling): The Applicant herein by motion on notice dated 7th April, 2019 and filed on 10/5/2019 prays for the following orders:-
1. LEAVE OF COURT to amend the Notice of Appeal by including additional grounds of appeal as underlined in the proposed Amended Notice of Appeal.
2. AN ORDER OF COURT deeming the appellants? amended Notice of Appeal as properly filed and served the appropriate filing fees having been paid.
3. AN ORDER enlarging the time within which the appellants/applicants may file their Appellants brief of argument, the time allowed by the rules to dos so having expired.
4. AN ORDER OF COURT deeming the appellants? brief of argument as properly filed and served the appropriate filing fees having been paid.
The Grounds of the application are set out. The application is supported by an affidavit of 8 paragraphs and a proposed notice of appeal annexed as Exhibit 2.
The Notice of Appeal sought to be amended is equally annexed to the said application and marked as Exhibit 1.
In opposition, the 1st Respondent filed
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a counter affidavit of 9 paragraphs by which he opposed the grant of the application upon among other grounds relevant that:-
4 (v) there is no Appeal against the judgment of the lower Court by the Appellant/Applicant till date.
In paragraph 6 of the counter affidavit, however, it is averred that if the Court is minded of granting the application, same should be granted only on conditions.
7. That the Honourable Court order/direct the applicant to deposit with the registrar of this Court the judgment sum within 14 days to be kept in an interest yielding account pending the determination of the appeal
8. That it is in the interest of justice to refuse the application.
The counter affidavit has annexed to it the judgment sought to be appealed.
I have read the judgment annexed to the counter affidavit and note that as averred by the Respondent?s learned counsel, that judgment has not by any of the Applicants been appealed. No wonder, it was not exhibited by the Applicant?s to their Motion for leave to appeal!
The 1st Respondent?s learned counsel relying on their counter affidavit has shown that the judgment has
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not been appealed but to the contrary that execution has been levied by the attachment of the applicant?s properties.
I find in the record of this case (file) an application dated and filed on 14/2/2019 for an order restraining the Respondents, (the 1st Respondent therein being the 1st Respondent in this application) from auctioning either by public sale or whatever means the Applicants? properties/items attached pursuant to the execution of the judgment of this Court carried out on 12th and 13th July, 2018 pending the hearing and determination of the appeal filed by the appellants?.
By this Motion and the Grounds of the Application, it is obvious that the Appeal filed is one against the ruling appertaining the writ of execution by attachment ordered and in respect of which the motion of 14?2?2019 was filed. A dismissal of the motion challenging the attachment made towards the intended auction is the ruling appealed against on 31?12?2018 as shown in Exhibit 1 to the application.
The dismissal order entered is no doubt a final order and not an interlocutory order. There was
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nothing left to be further done by the Court at the trial Court and by that Court in respect of the order. It was already functus officio and the Applicant can appeal therefrom and against same without leave, it being a final order.
However, being an appeal from a decision of the National Industrial Court, the Respondent?s learned counsel could still be on a strong ground to contend that the leave of this Court was in appropriate cases needed in order to validate the appeal sought to be lodged and to make it competent.
Leave, not having been sought and granted, before the filing of the purported appeal show-cased by Exhibit 1 to the instant application seeking to amend the said notice of appeal and to have time extended to file an Appellants Brief of Argument and deeming orders in respect of those processes, can this Court in law and equity in the circumstances of this case grant any of the prayers sought?
Yes, I do think so. The Respondents learned counsel is wrong to urge that the interest of justice is against the grant of this application.?It will be unconscionable not to grant an application for an amendment to a notice
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of appeal which has been validly and competently filed, by the fulfillment of the conditions precedent as ordained by law.
There is no doubt that this Court being the Court where the appeal was filed on 31/12/2018 (which is Exhibit 1); see Osareren v. FRN (2018) (pt. 1627), 10 NWLR 221 @ 233 H per Eko, JSC on the Courts being Courts of equity. Though leave not sought, I am afraid this Court is not a knight errand that poses as a tyrant that declines to grant reliefs solicited and justified by law; I shall not close my eyes to the appeal filed, as it would be a desecration of the unbiased and independent constitutional and expected posture of an arbiter. To do so, it would be unconstitutional and abuse of judicial power and privilege. The grievance remains only against the writ of attachment and the Ruling refusing to set aside; I realize that the Courts are not advisory institutions, else one would have asked whether the substantive judgment is not of the essence and action directed at it shall not cover the field and subsume the appeal on the Ruling, with grounds thereon raised howbeit, with leave sought as may be appropriate for the
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Ruling and substantive judgment as appropriate. I say no more.
In any case, the Courts are peremptorily enjoined in all cases to do justice dispassionately between parties before them. By the application, it is clear that the appeal filed raises the question of alleged breach of fair hearing in the ramifications of non service of hearing notice of the proceedings for the delivery and of judgment (Ruling) and the lack of service of the said Ruling; that the writ of execution was obtained by fraud.
Those being the gravamen of the Grounds of Appeal, an appeal lies as of right to this Court pursuant to the Court of Appeal Act and the Section 6(6)(a) of the Constitution and the National Industrial Court Act.
The Notice of Appeal was, therefore, competently filed and exists and may be amended. The application of the applicant should be granted as prayed. It is granted.
Accordingly, it is ordered as follows:
1. Leave is granted to the Appellants/Applicants herein to amend its Notice of Appeal filed on the 31?12?2018 and which is exhibited as Exhibit 1 to this motion, by the inclusion of additional grounds of appeal as
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underlined in the proposed amended Notice of Appeal Exhibit 2, being the ground 4 thereof challenging the jurisdiction of the trial Court for breach of his fundamental right to fair hearing.
2. In consequence of the amendment as above ordered, the Amended Notice of Appeal shall be filed within 7 days from today and served on the Respondents accordingly.
3. Time is till today extended for the Appellant/Applicant to transmit the record of appeal in this appeal to this Court and
4. Accordingly the record of appeal transmitted on 14/2/2019 is deemed to have been compiled and transmitted within time to this Court and served today.
5. The Appellant is by the aforesaid deeming order relating to the transmission of record of appeal deemed to have filed and served the Appellants? Brief of Argument today on the Respondents, the record having been regularized.
6. The prayer number 3 seeking the extension of time to file the Appellant’s Brief of Argument has become otiose and it is consequently struck out
7. In consequence of the grant of the prayers as entered and in view of the need to have the parties wholly,
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expeditiously and conclusively resolve their dispute, I think that if the Appellants/Applicants choose not to appeal the substantive judgment but pursues the appeal in respect of the complaint on execution or attachment alone, then it may be courting pyhric exercise.
This, therefore, is an appropriate case to proceed against the substantive judgment, if there is any grievance.
The Courts shall not instigate an appeal; it is forbidden. Even counsel cannot do. The motion is granted as prayed and as ordered in the body of this Ruling.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having perused the lead ruling served on me in draft form and the reference made by me to the Record of Appeal transmitted to this Court gingered me to accept in totality the reasoning and conclusion reached by my learned brother, Mohammed A. Danjuma, JCA.
I found the appeal meritorious as determined in the lead Ruling.
The application is therefore successful and the prayers therein granted.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read in advance the ruling just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA. ?I agree
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with his Lordship’s reasoning and conclusions that this application has merit and is deserving of a favourable consideration.
The application succeeds and is hereby granted as prayed.
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Appearances:
Rotji E. Nyokke, Esq.For Appellant(s)
Solomon Tunyan, Esq. for 1st Respondent.
D. I. Babale, Esq. for the 2nd & 3rd Respondents.
4th Respondent was not represented (but served)
For Respondent(s)
Appearances
Rotji E. Nyokke, Esq.For Appellant
AND
Solomon Tunyan, Esq. for 1st Respondent.
D. I. Babale, Esq. for the 2nd & 3rd Respondents.
4th Respondent was not represented (but served)For Respondent
