ASUU v. FGN & ANOR
(2022)LCN/16284(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, October 07, 2022
CA/ABJ/PRE/CV/995/2022(R)
Before Our Lordships:
Hamma Akawu Barka Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
ACADEMIC STAFF UNION OF UNIVERSITIES APPELANT(S)
And
FEDERAL GOVERNMENT AND 1 OR RESPONDENT(S)
RATIO
THE POSITION OF LAW ON AN APPEAL FROM THE DECISION OF THE NATIONAL INDUSTRIAL COURT TO THE COURT OF APPEAL
In that regard, I consider the starting point as being Section 240 of the Constitution of the Federal republic of Nigeria 1999 as amended, to the effect that this Court is imbued with the power and jurisdiction to entertain appeals from the National Industrial Court of Nigeria, amongst other Courts of the land. Section 243 (3) of the Constitution which provides that:
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.
I understand this constitutional provision as demanding that before any decision of the National Industrial Court of Nigeria will lie on appeal to the Court of Appeal, the leave of the Court of Appeal must be sought. The case of Skye Bank Plc vs. Iwu (2017) 16 NWLR (pt. 1590) cited by the applicants appears to be the locus classicus on the matter. All I am trying to say here is that the requirement for leave of this Court is only subjected to the provisions of Section 24 of the Court of Appeal Act for which a clear understanding thereof permits, envisages application for leave to be made to this Court, but peradventure, the application is made before the lower Court, the timing circumscribed by Section 24 (2) of the Court of Appeal Act may be enlarged. The argument therefore that Order 6 Rule 4 of the Court of Appeal Rules, 2021 had been breached, and all the authorities cited in that regard, is not available to the Respondents. PER BARKA, J.C.A.
CONDITION TO BE SATISFIED FOR A RIGHT OF APPEAL TO EXIST
In law, the appellate system in this Country has taken firm root in our legal system principally due to the sacrosanct nature of the right of appeal, either as of right or with leave, of the citizen to approach a higher level of Court in the hierarchy of Courts in Nigeria to ventilate his grievance against decisions of a lower Court with which he is dissatisfied or peeved. However, it is of great importance to note that the right of appeal, though sacrosanct, does not exist in vacuo. It must exist either constitutionally or statutorily. In other words, the right to appeal can neither be inferred nor implied, and there is also no inherent right of appeal. Thus, for a right of appeal to exist and be available to a party it must be shown to exist either constitutionally and/or statutorily. Therefore, where no provision of a right to appeal exists, then no appeal will lie. See Iwok V. Inyang & Ors (2022) LPELR – 58413(CA) per Sir Biobele Abraham Georgewill JCA. See also Diwe V. Nwanosike (2017) LPELR – 41687 (CA). See also Iwuagwu v. Okoroafor & Ors (2012) LPELR-20829 (CA); Emecheta V. Sowemimo (2018) LPELR – 50419 (CA); per Sir Biobele Abraham Georgewill JCA; Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA; Akinbisehin V. Olajide (2018) LPELR 51172 (CA) per Sir Biobele Abraham Georgewill JCA.
It follows therefore, that in law the right of appeal is a constitutional one and thus sacrosanct, inviolable and must not be lightly fettered with or encumbered in its exercise by the citizen who feels aggrieved with the decision of a Court. However, by the combined effect of Sections 241, 242 and 243 of the Constitution of Nigeria 1999 (as amended), it is a right exercisable only by a person aggrieved within the purview or confines of the constitutional or statutory provision creating the right of appeal. PER GEORGEWILL, J.C.A.
PRE-CONDITIONS TO BE FULFILLED TO EXERCISE THE RIGHT OF APPEAL FROM THE DECISIONS OF THE LOWER COURT TO THE COURT OF APPEAL
Thus, the right of appeal from the decisions of the lower Court to the Court of Appeal is exercisable only upon the fulfillment of some well – defined constitutional preconditions, namely:
A. The right of appeal can only be exercised by a party to the proceedings or any other person having an interest in the subject matter:
B. For a party or person to exercise the right of appeal, he must show that he is aggrieved by the judgment or decision;
C. A person aggrieved by a decision is one against whom a decision has been pronounced which has wrongfully deprived him of something, who is adversely affected by the decision of the Court in that the decision wrongfully refused him something, or wrongfully affected his title to something.
See Elephant Group Plc V. National Security Adviser & Anor (2018) LPF.LR-45528(CA) per Sir Biobele Abraham Georgewill JCA. See also Ogunkunle & Ors V. Eternal Sacred Order of the Cherubim and Seraphim & Ors (2001) 12 NWLR (Pt. 727) 359. See also Adeleke & Anor v. Oyo State House of Assembly (2006) 10 NWLR (Pt. 987) 50; Okoye v. Tobechukwu (2016) LPELR – 41508 (CA); Tochukwu Anyanwu V. Emezie Okoroafor & Ors. (2012) LPELR-20823 (CA).
An application of this nature seeking the indulgence of this Court to grant leave to appeal is one which involves an exercise of discretion and thus in law it is only where the Applicant has furnished the relevant materials showing Ground (s’) which prima facie show good cause why the Appeal should be heard that it can be favourably considered and not otherwise. See Dana Airlines Limited V. Mr. Yahuza Yage Bamaiyi & Anor (2017) LPELR-43054(CA) per Sir Biobele Abraham Georgewill JCA. See also Ngere V. Okuruket XIV & Ors. (2014) 11 NWLR (pt. 1417) 147 at pp. 155 -156.; ANPP V. Albishir (2010) 9 NWLR (Pt. 1198) 118 at p. 143; Ikenta Best (Nig) Ltd. V. AG. Rivers State (2008) 2 – 3 SC (pt. 1) 128; Braithwaite & ors. v. Dalhatu (2016) LPELR – 40301 (SC). PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON EXERCISING DISCRETION BASED ON THE FACTS PLACED BEFORE THE COURT BY PARTIES
This application calls for the exercise of our discretion based on the facts as placed before us by the parties and the applicable laws, rules and principles. I am aware that in law an exercise of discretion such as is required in the consideration of the present application, though not subject to so much hard and fast rules, must be founded on justice, fairness and law but certainly never on the whims and caprice of the Court with scant or no regards to the facts of the case. See Dana Airlines Limited V. Mr. Yahuza Yage Bamaiyi & Anor (2017) LPELR-41054(CA) per Sir Biobele Abraham Georegwill JCA. See also The Vessel MT. Sylla & Anor V. Ghana Commercial Bank Ltd & Ors (2021) LPELR – 54556 (CA) per Sir Biobcle Abraham Gcorgewill JCA; University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143; Aboseldehyde Lab. Plc. V. U. M. B. Ltd (2013) 13 NWLR (pt. 1370) 91 at pp. 97 – 98; Aroh V. PDP (2013) 13 NWLR (pt. 1371) 235: Thimnu V. UBN Plc. & Ors.(2013) LPELR 22127 (CA) at pp. 20 – 21. PER GEORGEWILL, J.C.A.
WHETHER OR NOT AN APPELLANT HAS AS OF RIGHT THE RIGHT TO FILE A NOTICE OF APPEAL WHERE AN APPEAL IS WITH LEAVE
Now, in law where an appeal is with leave, an intending Appellant does not have as of right the right to file a Notice of Appeal without first seeking and obtaining the leave of Court. This is what the Applicant has sought to do in this application and it will be highly remiss to deny the application of the exercise of this right even if at least on conditions to be fulfilled before the right is invoked or exercised against the Ruling and Orders of the lower Court. I am aware that the law is that the Applicant need not show that by the grounds, the appeal is likely to succeed but still it carries the onus to show that prima facie the grounds of appeal disclose good arguable issue. See Dana Airlines Limited V. Mr. Yahuza Yage Bamaiyi & Anor (2017) LPEI.R-43(J54(CA) per Sir Biobele Abraham Georgewill JCA. See also Iwuagu V. Okoroafor & Ors (2012) LPELR – 20829 (CA). See also FCMB Plc. V. NIMR (2009) 9 NWLR (Pt. 1147) 509; NNPC V. O.E. Nig. Ltd (2008) 8 NWLR (Pt. 1090) 583; Savanah Bank Nig. Plc V. CBN (2007) 8 NWLR (Pt. 1035) 26 p. 39; E.F.P Co Ltd V. NDIC (2007) 9 NWLR (Pt. 1039) 216. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON WHO A “PERSON AGGREIVED” OR A “PERSON INTERESTED” IS
In law, who then is ’a person aggrieved’ or ’a person interested’ within the context of the right of appeal as constitutionally guaranteed to the citizen. In Ikonne V. COP & Anor (1986) 4 NWLR (Pt. 36) 473 at p. 479, the Supreme Court had expatiated on the meaning of having interest inter alia thus:
“The expression ‘person having interest’ has been defined as synonymous with person aggrieved. A person aggrieved must be a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something….A person aggrieved includes a person who has a genuine grievance because an order has been made which prejudicially affects his interest.”
See also Ziklagsis Networks Ltd. V. Adebiyi & Ors (2017) LPELR-42899 (CA) per Sir Biobele Abraham Georgewill JCA; Re: Sidebotham, Ex – Parte Sidebotham (1990) 14 CII. D. 465; In Re: Reed Bowen & Co. Ex- parte Official Receiver (1987) 19 Q. B. D. 178. PER GEORGEWILL, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): The instant application filed on the 28th of September, 2022 and brought pursuant to Sections 6 (6) (B), 36 (1) and 243 (3) of the 1999 Constitution as amended, and pursuant to Order 6 Rules 1(1), 10 (1) of the Court of Appeal Rules 2021 and under the inherent jurisdiction of this Court, for:
i. An order granting the Applicant leave to appeal against the interlocutory ruling of the National Industrial Court per Honourable Justice P. I. Hamman in suit no: NICN/ABJ/270/2022 between the FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES delivered on Wednesday 21st day of September, 2022.
ii. An order staying execution of the order of the National Industrial Court Honourable Justice P. I. Hamman in suit no: NICN/ABJ/270/2022 between the FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES delivered on Wednesday 21st day of September, 2022 per pending the hearing and determination of the interlocutory appeal.
iii. And any other order or orders this Honourable Court may deem fit to make in the circumstance of this case.
iv. And further take notice that the appellant/applicant shall at the hearing of this application rely on the affidavit sworn to by Samuel Ameh on behalf of the Applicant.
The grounds upon which the application is founded are:
i. The Court below coram Honourable Justice P. I. Hamman in suit no: NICN/ABJ/270/2022 between the FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES delivered ruling in an interlocutory application brought by the Claimants/Respondents.
ii. The applicant by virtue of Section 243 (3) of the 1999 Constitution as amended requires the leave of Court to appeal against the decision.
iii. The applicant is bringing this appeal both on grounds of law and on grounds bothering on Fundamental Human Rights.
iv. Applicant’s Counsel out of the abundance of caution, has brought this application to obviate any doubt associated with the nature of the appeal.
v. The applicant is still within time to bring this application for leave.
vi. This honourable Court should not shut out the defendant and thousands of its members desirous of ventilating their grievances pursuant to Sections 6 (6)(B) and 36 (1) of the 1999 Constitution as amended.
vii. It is in the interest of justice to grant this application.
viii. The ruling of the Court per Honourable Justice P. I. Hamman in suit no: NICN/ABJ/270/2022 between the FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES delivered on 22nd September, 2022 affects the fundamental rights of the applicant and its members to fair hearing, inter alia and it would be in the interest of justice to stay the execution of same pending the hearing and determination of the Appeal arising thereto.
ix. Further take notice that at the hearing of this applicant; the Applicant shall rely on the proposed Notice of Appeal and the affidavit accompanying the said application.
The application is supported by a 17 paragraphed affidavit deposed to by one Samuel Ameh, a senior litigation and research assistant with the law firm of Falana and Falana Chambers, Abuja. Also hinged on the motion papers is exhibit 1 the ruling of the lower Court, exhibit 2 the proposed Notice of Appeal and a written address in support of the application also filed on the same 28/09/2022. In opposing the application, the Respondents filed a counteraffidavit contained in 17 paragraphs deposed to by one Okechukwu Nwamba a State Counsel in the Federal Ministry of Justice, also filed along with the Counter-affidavit is a copy of the motion on notice argued before the lower Court, which ruling generated the instant application and a host of other documents all relating to the motion filed before the lower Court.
There is also filed a written address in support of the Respondent’s Counter-affidavit in opposition to the applicants affidavit filed on the 04/10/2022, Respondent’s also filed additional authorities on 06/10/2022.
On the 6th of October, 2022 being the date scheduled for the hearing of the application, Mr. Falana SAN, learned counsel for the Applicant, applied to withdraw prayer two in the motion papers, urging the Court to grant his application per prayer one. Mr. Igwe, SAN, the Learned Counsel appearing for the Respondents relied on the counter affidavit filed, adopted the written address also filed by him in urging the Court to refuse the application. Both Senior Counsel adumbrated on their respective positions, with Mr. Igwe vehemently contesting the applicants oral application seeking to withdraw prayer 1, in the applicants motion, contending that issues having been joined, the Court must of necessity rule on same.
In the written address filed in support of the application, the learned counsel for the applicant proposed two issues for resolution, to wit:
i. Whether this honourable Court can grant leave to the Appellant/Applicant to appeal the ruling of the National Industrial Court in suit no: NICN/ABJ/270/2022 between FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES. And
ii. Whether this honourable Court can make an order staying the execution of the order of the National Industrial Court suit no: NICN/ABJ/270/2022 between FEDERAL GOVERNMENT OF NIGERIA & 1 OR. VS. ACADEMIC STAFF UNION OF UNIVERSITIES.
On the first issue, Learned Counsel made reference to the provisions of Section 243 (3) (a) of the Constitution of the Federal Republic of Nigeria as amended and Order 6 (1) (a) and Rule 2 of the Court of Appeal Rules, 2021 to submit that this Court is clothed with the vires to grant the instant application.
It is also his submission that the applicant being desirous of challenging the judgment of the National Industrial Court, imperatively has to seek the leave of Court to file his appeal; other than grounds of fundamental rights. In support of the proposition counsel cited a host of cases including Skye Bank Plc. Vs. Iwu (2017) 16 NWLR pt. 1590.
On the second issue, it is the submission of the Learned senior counsel relying on Ogunremi Vs. Dada (1962) 1 ALL NLR 670 and the case of Sodeinde Vs. Registered Trustees of Ahmadiya Movement in Islam (1980) 1-2 (SC) 163 at 170 to submit that this Court is vested with the vires to stay the execution of the orders of the Learned Trial Judge being appealed therein as a party aggrieved in order to preserve the res and/or their legal right can approach the same Court or an appellate Court for an order staying the same order or judgment.
Further submitting counsel argued that the Court can grant an order of stay of proceedings/execution even where an appeal has not been filed, reliance was placed on the case of the NDLEA Vs. Okorodudu (1997) 3 NWLR Pt. 492 221 at 243.
In conclusion Learned senior counsel urged the Court to grant the application.
On his part, Learned senior counsel for the respondent, proposed four issues needing determination, which are as follows:
i. Whether this Honourable Court has jurisdiction to entertain the Appellant’s motion on notice dated 23rd September, 2022 and filed on 23rd September, 2022 having regards to the competency or otherwise of the said application.
ii. Whether the Appellant has approached this honourable Court with dirty hands and therefore, not entitled to the equitable discretion of this honourable Court?
iii. Whether the grant of the Appellants prayer for stay of execution of the order of the National Industrial Court suspending the prolonged strike action by the Appellant will lead to illegality and therefore, ungrantable by this honourable Court?
iv. Whether the Appellant/Applicant has jurisdiction to entertain the Appellants motion on notice dated 23rd September, 2022 and filed 23rd September, 2022 having regards to the competency or otherwise of the said application?
With respect to the first issue, counsel submitted upon the authority of Drexel Energy and Natural Resources Ltd. & 2 Ors. Vs. Trans International Bank Ltd. (2008) 18 NWLR Pt. 1119 399 at 419 amongst others, that jurisdiction is the center pin of the entire litigation, and posited that the commencement of a suit is very fundamental to the issue of jurisdiction, for where a Court purports to exercise jurisdiction which it does not have the proceedings before it and its judgment will amount to a nullity, and relied on Contectna International Ltd. Vs. Churchgate Nigeria Ltd. & Annor (2010) 12 (SC) Pt. 11 140, submitting on the incompetency of the application with regards to the motion filed, Counsel argued that the motion is incompetent and ought to be struck out, he relied on Order 6 Rule 4 of the Court of Appeal Rules, 2021 to submit that the applicants motion was filed to this Court without first being filed before the trial Court.
On this, counsel cited the case of Adeniran Vs. Olusokun II (2019) 8 NWLR Pt. (1673) 98 amongst others. He emphatically insisted that the applicant having failed to first file the application before the lower Court before approaching the Court of appeal makes the entire application incompetent.
With regards to the second issue, it was contended by Senior Counsel that the Applicant approached this Court with dirty hands and cited instances of disobedience of Court orders of the National Industrial Court and other instances related thereto to argue that the applicant being dented with disobedience of orders of the National Industrial Court should not be given a hearing. He cited on this, the cases of Enekwe Vs. I.M.B Nigeria Ltd. (2006) 19 NWLR Pt. (1013) 146 at 180 as well as the Military Governor of Lagos State & Ors. VS. Ojukwu (1986) ALL NLR 233, counsel urged the Court to refuse the application for stay of execution.
On the third issue, Learned senior counsel argued that prayer two of the Appellants seeks to enthrone illegality, he drew the Courts attention to the provisions of Sections 18 (1) and (2) of the Trade Disputes Act to posit that Courts do not encourage illegality on the principle of ex turi causa non oritur action.
With regards to the last issue, it was submitted that the applicant have failed to show any special circumstance and thereby failed to satisfy the conditions for the application of the grant. In that regard it was argued that applicant failed to show any special circumstance and cited the case of Amadi Vs. Chukwu (2013) 5 NWLR Pt. 1347 301. The learned senior counsel also alluded to the absence of arguable grounds in the Appellants proposed Notice of appeal, absence of balance of evidence and justice against the applicant, and concluded that the cases cited and relied upon by the learned counsel for the applicant are of no use to the applicant, and thereby urged the Court to refuse the application.
Accordingly, I have accorded the submissions of the senior counsel in the matter due consideration, and it is my humble view, that the substance of the entire application centers on whether applicants application can be granted in the circumstance.
In dealing with the preliminary issue as to whether the applicants withdrawal of prayer 2 can be countenanced, in view of the argument posited that parties had joined issues on the issue, I am unable to agree with Mr. Igwe that applicants cannot even at that stage withdraw their prayer, and accordingly the prayer to withdraw prayer one seeking for order staying the execution of the order of the National Industrial Court per Hon. Justice P.I. Hamman in suit No. NICN/ABJ/270/2022, between Federal Government of Nigeria & 1 or vs. Academic Staff Union of Universities delivered on Wednesday the 21st day of September, 2022 having been withdrawn is hereby struck out.
The application in the circumstance remains to be considered on the basis of whether this Court can grant the Applicant leave to appeal the interlocutory ruling of the National Industrial Court of Nigeria, made on the 21st day of September, 2022 between the two combatants.
In that regard, I consider the starting point as being Section 240 of the Constitution of the Federal republic of Nigeria 1999 as amended, to the effect that this Court is imbued with the power and jurisdiction to entertain appeals from the National Industrial Court of Nigeria, amongst other Courts of the land. Section 243 (3) of the Constitution which provides that:
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.
I understand this constitutional provision as demanding that before any decision of the National Industrial Court of Nigeria will lie on appeal to the Court of Appeal, the leave of the Court of Appeal must be sought. The case of Skye Bank Plc vs. Iwu (2017) 16 NWLR (pt. 1590) cited by the applicants appears to be the locus classicus on the matter. All I am trying to say here is that the requirement for leave of this Court is only subjected to the provisions of Section 24 of the Court of Appeal Act for which a clear understanding thereof permits, envisages application for leave to be made to this Court, but peradventure, the application is made before the lower Court, the timing circumscribed by Section 24 (2) of the Court of Appeal Act may be enlarged. The argument therefore that Order 6 Rule 4 of the Court of Appeal Rules, 2021 had been breached, and all the authorities cited in that regard, is not available to the Respondents.
Now worrisome, is the failure of the applicants herein to obey the judgment of the lower Court, thus leading the learned counsel for the Respondent to draw the attention of the Court to that fact, contending that the applicants are seeking for order of this Court with dirty hands, and in that regard, the case of the Millitary Governor of Lagos State vs. Ojukwu was cited and relied upon. Our attention was also referred to the case of Mobil Oil Nig. Ltd vs. Assan (1995) 8 NWLR (pt. 412) 129 at 150, where the Supreme Court held that:
“Chief FRA Williams, SAN referred the Court to the cases of Huang & Ors. v. Bello & Ors. supra and Restico Nigera Ltd. V. Societe General Surveillance SA supra. These are Court of Appeal decisions and were in my view rightly decided. What the Court below was saying in both cases was that where a person is appealing against a matter in which he had suffered a defeat and asked for a stay of execution pending the determination of the appeal, he would not be liable in contempt merely because he had not obeyed the order which he is appealing against or which he wants stayed pending the appeal”
Afe Babalola SAN, in his treatise, pointed out that in exceptional cases there can be lawful disobedience of an injunctive order, opining that; there are exceptions to the rule that any person against whom an order is made must obey it. Also in Odogwu v. Odogwu (1992) 2 NWLR (PT 225) P 539 at 554 the Supreme Court held that the common law rule precluding persons in disobedience of the order of Court against them from being heard in respect of the matters which they stand in disobedience permits of an exception where the order disobeyed was made without jurisdiction or where the party in disobedience is challenging the validity of the order.
In view of this state of the law, I am inclined to granting the application for leave to appeal the decision of the National industrial Court of Nigeria delivered on the 2nd day of September, 2022 as prayed on the condition that the order of the lower Court is obeyed immediately.
In conclusion, my lords permit me to express the view that I have known Mr. Falana, SAN for a long time as an advocate of the rule of law, and obedience to lawful orders made by Courts of the land. He has championed that cause in numerous cases. I challenge him to aid the obedience of lawful Court orders made.
In conclusion, prayer one in the motion papers is granted as prayed, and Applicant granted 7 days to file his notice of appeal before the Court below.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lords, I participated in the conference leading to the leading ruling of the Court just delivered Hamman Akawa Barka, JCA. and I am completely satisfied with the reasoning, conclusions and others made therein, which I hereby adopt as mine.
However, due to the monumental issues thrown up by an otherwise seemingly innocuous application for leave to appeal against the order of interlocutory injunction of the lower Court made against the applicant. I intend to add my considered words and voice to the rich analysis in the leading ruling already delivered.
My lords, the facts and circumstances leading to this application by the Applicant for leave to appeal are as germane as they have been all over the public domain for the past eight months during which period the entire Public University System in Nigeria has been brought to a standstill with the gates of our universities being under lock and keys and the students at home for the past eight month.
At the lower Court, the National Industrial Court Abuja Division, the Respondent had approached the lower Court by way of a referral done pursuant to the powers of the Hon Minister of Labour and Employment as the impasse between the parties had become protracted without any near end in sight. The Respondent has sought an order of interlocutory injunction of the lower Court restraining the Applicant from continuing with their strike action.
It would appear that issues were duly joined by the parties and after hearing the parties, the lower Court had granted the order of interlocutory injunction sought by the Respondent and thereby directing the Applicant to resume work pending the hearing and determination of the substantive suit. It was the said order with which the Applicant was peeved that an application has now been made to this Court seeking leave to appeal as well as for an order of slay of execution of the interlocutory order of inunction pending the hearing and determination of their appeal against the said order of the lower Court.
The parties have duly filed and exchanged their processes and written addressee, which at the hearing of this application on 6/10/2022 were duly adopted and adumbrated upon by learned Senior Advocates for the parties, namely. Femi Falana SAN for the Applicant on the one hand, and I. J. Igwe SAN for the Respondent on the other hand. I have taken time to calmly read through the facts and circumstances as deposed to in the Affidavit and Counter – Affidavit of the parties. I have also taken time to scrutinize the several documents relied upon by them. I have also considered the enlightening and weighty submissions of learned Senior Advocates for the parties., carefully noting the several decided cases relied upon by them.
Now, at the hearing of this application, the Applicant had even before commencing arguments on the application applied to withdraw the second prayer on the Motion papers for stay of execution of the order of interlocutory injunction granted against it by the lower Court, and thereby leaving only the relief of leave to appeal. However, this application to withdraw the second relief was stoutly opposed but having considered the application to withdraw relief two and the objection thereto. I see no legal impediment why the Applicant cannot withdraw its own prayer before a decision one way or the other has been taken on it by this Court when even a substantive appeal can be withdrawn even after the parties had filed and exchanged their briefs, and same would be dismissed by the Court. See Order 11 Rule 5 of the Court of Appeal Rules 2021.
Consequently, I hold that the application to withdraw prayer two on the motion papers is in order and ought to be granted. Accordingly, prayer two for stay of execution of the interlocutory order of injunction of the lower Court made against the Applicant is hereby struck out having been withdrawn by the Applicant.
In law, the appellate system in this Country has taken firm root in our legal system principally due to the sacrosanct nature of the right of appeal, either as of right or with leave, of the citizen to approach a higher level of Court in the hierarchy of Courts in Nigeria to ventilate his grievance against decisions of a lower Court with which he is dissatisfied or peeved. However, it is of great importance to note that the right of appeal, though sacrosanct, does not exist in vacuo. It must exist either constitutionally or statutorily. In other words, the right to appeal can neither be inferred nor implied, and there is also no inherent right of appeal. Thus, for a right of appeal to exist and be available to a party it must be shown to exist either constitutionally and/or statutorily. Therefore, where no provision of a right to appeal exists, then no appeal will lie. See Iwok V. Inyang & Ors (2022) LPELR – 58413(CA) per Sir Biobele Abraham Georgewill JCA. See also Diwe V. Nwanosike (2017) LPELR – 41687 (CA). See also Iwuagwu v. Okoroafor & Ors (2012) LPELR-20829 (CA); Emecheta V. Sowemimo (2018) LPELR – 50419 (CA); per Sir Biobele Abraham Georgewill JCA; Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA; Akinbisehin V. Olajide (2018) LPELR 51172 (CA) per Sir Biobele Abraham Georgewill JCA.
It follows therefore, that in law the right of appeal is a constitutional one and thus sacrosanct, inviolable and must not be lightly fettered with or encumbered in its exercise by the citizen who feels aggrieved with the decision of a Court. However, by the combined effect of Sections 241, 242 and 243 of the Constitution of Nigeria 1999 (as amended), it is a right exercisable only by a person aggrieved within the purview or confines of the constitutional or statutory provision creating the right of appeal.
Thus, the right of appeal from the decisions of the lower Court to the Court of Appeal is exercisable only upon the fulfillment of some well – defined constitutional preconditions, namely:
A. The right of appeal can only be exercised by a party to the proceedings or any other person having an interest in the subject matter:
B. For a party or person to exercise the right of appeal, he must show that he is aggrieved by the judgment or decision;
C. A person aggrieved by a decision is one against whom a decision has been pronounced which has wrongfully deprived him of something, who is adversely affected by the decision of the Court in that the decision wrongfully refused him something, or wrongfully affected his title to something.
See Elephant Group Plc V. National Security Adviser & Anor (2018) LPF.LR-45528(CA) per Sir Biobele Abraham Georgewill JCA. See also Ogunkunle & Ors V. Eternal Sacred Order of the Cherubim and Seraphim & Ors (2001) 12 NWLR (Pt. 727) 359. See also Adeleke & Anor v. Oyo State House of Assembly (2006) 10 NWLR (Pt. 987) 50; Okoye v. Tobechukwu (2016) LPELR – 41508 (CA); Tochukwu Anyanwu V. Emezie Okoroafor & Ors. (2012) LPELR-20823 (CA).
An application of this nature seeking the indulgence of this Court to grant leave to appeal is one which involves an exercise of discretion and thus in law it is only where the Applicant has furnished the relevant materials showing Ground (s’) which prima facie show good cause why the Appeal should be heard that it can be favourably considered and not otherwise. See Dana Airlines Limited V. Mr. Yahuza Yage Bamaiyi & Anor (2017) LPELR-43054(CA) per Sir Biobele Abraham Georgewill JCA. See also Ngere V. Okuruket XIV & Ors. (2014) 11 NWLR (pt. 1417) 147 at pp. 155 -156.; ANPP V. Albishir (2010) 9 NWLR (Pt. 1198) 118 at p. 143; Ikenta Best (Nig) Ltd. V. AG. Rivers State (2008) 2 – 3 SC (pt. 1) 128; Braithwaite & ors. v. Dalhatu (2016) LPELR – 40301 (SC).
However, at this stage of only considering whether or not to grant leave to appeal there is no duty on the Applicant to show that the proposed grounds of appeal will succeed but all that is required of such an applicant is to show that from the proposed grounds of appeal the appeal is arguable. In Obikoya V. Wema Bank Ltd. (1989) 1 NWLR (pt. 196) 157 at p. 178. the Supreme Court per Obaseki JSC, had considered this issue and opined succinctly inter alia thus:
“A ground of appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of facts and law in the consideration of the Court. It is a ground which makes a serious debate as to the correctness of the decision of the Court below. It is a ground which tasks the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous.”
See also Re Adewunmi (1988) 3 NWLR (Pt. 83) 483; Dana Airlines Limited V. Mr. Yahuza Yage Bamaiyi & Anor (2017) LPELR-43054(CA) per Sir Biobele Abraham Georgewill JCA.
This application calls for the exercise of our discretion based on the facts as placed before us by the parties and the applicable laws, rules and principles. I am aware that in law an exercise of discretion such as is required in the consideration of the present application, though not subject to so much hard and fast rules, must be founded on justice, fairness and law but certainly never on the whims and caprice of the Court with scant or no regards to the facts of the case. See Dana Airlines Limited V. Mr. Yahuza Yage Bamaiyi & Anor (2017) LPELR-41054(CA) per Sir Biobele Abraham Georegwill JCA. See also The Vessel MT. Sylla & Anor V. Ghana Commercial Bank Ltd & Ors (2021) LPELR – 54556 (CA) per Sir Biobcle Abraham Gcorgewill JCA; University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143; Aboseldehyde Lab. Plc. V. U. M. B. Ltd (2013) 13 NWLR (pt. 1370) 91 at pp. 97 – 98; Aroh V. PDP (2013) 13 NWLR (pt. 1371) 235: Thimnu V. UBN Plc. & Ors.(2013) LPELR 22127 (CA) at pp. 20 – 21.
In this application I have borne in mind, and as aptly submitted by the Applicant’s counsel, that the right of appeal is one of the most sacred and inalienable rights of the citizens to challenge decisions affecting or touching their rights and obligations under the laws of the land and with which they feel aggrieved and thus the right of appeal should most sparingly be allowed to be impeded with and nothing must be done lightly to stultify it. In E.F.P.C Ltd. V. NDIC (2007) All FWLR (pt. 367) 798 at pp. 825 – 826, the Supreme Court had restated this succinct principle of law in very clear and precise words inter alia thus:
“The right of appeal is constitutional as it is provided in the Constitution. It stands on the very height of the Appeals system by virtue of the fact that the Constitution provides for it.”
It is perhaps for the above reason that the Courts have over the years been very liberal in its attitude when considering applications for leave to appeal against the judgment or ruling of one level of Court to the next level of Court in the hierarchy of Courts in the land. Thus, once an applicant discloses grounds of appeal which prima facie show good cause why the appeal should be heard, a Court is obliged to grant the leave sought to enable the Applicant ventilate his grievances against the decision of the Court he is dissatisfied with as guaranteed him by the Constitution under the right of appeal. See Sections 241, 242 and 243 of the Constitution of Nigeria 1999 (as amended).
Now, in law where an appeal is with leave, an intending Appellant does not have as of right the right to file a Notice of Appeal without first seeking and obtaining the leave of Court. This is what the Applicant has sought to do in this application and it will be highly remiss to deny the application of the exercise of this right even if at least on conditions to be fulfilled before the right is invoked or exercised against the Ruling and Orders of the lower Court. I am aware that the law is that the Applicant need not show that by the grounds, the appeal is likely to succeed but still it carries the onus to show that prima facie the grounds of appeal disclose good arguable issue. See Dana Airlines Limited V. Mr. Yahuza Yage Bamaiyi & Anor (2017) LPEI.R-43(J54(CA) per Sir Biobele Abraham Georgewill JCA. See also Iwuagu V. Okoroafor & Ors (2012) LPELR – 20829 (CA). See also FCMB Plc. V. NIMR (2009) 9 NWLR (Pt. 1147) 509; NNPC V. O.E. Nig. Ltd (2008) 8 NWLR (Pt. 1090) 583; Savanah Bank Nig. Plc V. CBN (2007) 8 NWLR (Pt. 1035) 26 p. 39; E.F.P Co Ltd V. NDIC (2007) 9 NWLR (Pt. 1039) 216.
In law, who then is ’a person aggrieved’ or ’a person interested’ within the context of the right of appeal as constitutionally guaranteed to the citizen. In Ikonne V. COP & Anor (1986) 4 NWLR (Pt. 36) 473 at p. 479, the Supreme Court had expatiated on the meaning of having interest inter alia thus:
“The expression ‘person having interest’ has been defined as synonymous with person aggrieved. A person aggrieved must be a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something….A person aggrieved includes a person who has a genuine grievance because an order has been made which prejudicially affects his interest.”
See also Ziklagsis Networks Ltd. V. Adebiyi & Ors (2017) LPELR-42899 (CA) per Sir Biobele Abraham Georgewill JCA; Re: Sidebotham, Ex – Parte Sidebotham (1990) 14 CII. D. 465; In Re: Reed Bowen & Co. Ex- parte Official Receiver (1987) 19 Q. B. D. 178.
So, in the light of the above well settled position of the law, is the Applicant a person aggrieved with the decision of the lower Court granting an order of interlocutory injunction against it pending the determination of the Respondents’ Suit filed against it before the lower Court within the purview of the provisions of Sections 241, 242 and 243 of the Constitution of Nigeria 1999 (as amended) to be clothed with the right standing to appeal it and are there reasonable grounds disclosed for the leave sought to appeal and are there any likelihood or chances of success of these grounds? In other word, are the ground relied upon by the Applicant such as disclose prima facie reasonable grounds why the appeal should be heard? I most certainly think so! I therefore, answer all these critical and crucial posers in the affirmative in favour of the Applicant.
My lords, in resolving to granting this leave to appeal to the Applicant, though a conditional one as I will show anon, I bear in mind that in law amidst the resultant clash of arms, as between the Federal Government on the one side and the Academic Staff Union of Universities on the other side, and regrettably the majority of students in the universities in this country are left on their own and in the lurch and without neither any say nor hope and any end in sight to their untold sufferings being out of school for 8 months now and still counting, it is said, and quite aptly too, that the Court will not and will never be silent. See Attorney General V. De Keyser’s Royal Hotel (1920) AC 508 per the House of Lords. See also Margaret Stitch V. AG. Federation & Ors (1986) 5 NWLR (Pt. 46) 1007 at p. 1026 per Aniagolu JSC; Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528(CA) per Sir Biobele Abraham Georgewill JCA.
However, in acceding to the request of the Applicant in the exercise of its constitutional right of appeal, this is one case going by the admitted continued disobedience of the order of the lower Court now being sought to be appealed against and which disobedience had become more glaring and indefensible upon the withdrawal of the prayer for stay of execution of the orders of the lower Court, which relief having been withdrawn is hereby struck out by me. In the circumstances therefore, I am minded to and would therefore grant to the Applicant condition leave to appeal subject to the Applicant immediate compliance and obedience of the subsisting and valid order of interlocutory injunction granted against it by the lower Court as a condition precedent to the exercise of its’ right of appeal.
On the whole therefore, the application for leave to appeal against the interlocutory order of injunction against the lower Court by the Applicant has merit and it is hereby granted conditionally in order not to foist on the Applicant the toga of any finality in the decisions and orders of the lower Court, a Court of first instance, without any opportunity to challenge and ventilate its grievance against such decisions and orders in a country with well – established appellate system of administration of justice, even very widely acknowledged and accepted in the judicial systems of all of the West African Sub – Region.
In the result, I also grant the application and for the avoidance of doubts. I hereby Order as follows:
1. The Applicant shall immediately comply with and obey the Order of interlocutory of injunction of the lower Court made against it, the subject matter of the leave being sought to appeal in this application
2. Upon the immediate compliance and return to work and their duty post as in Order one above, leave is hereby granted to the Applicant to appeal against the decision and Order of interlocutory injunction made against it by the lower Court.
3. The Application shall, upon the immediate compliance with Order one above and complying with the Order of interlocutory injunction made against it by the lower Court and immediately upon returning to work today, 7/10/2022, have 7 days from today, 7/10/2022 within which to file its Notice and Ground of Appeal at the Registry of the Lower Court.
4. However, should the Applicant fail to immediately comply with Order 1 above in this Ruling today, 7/10/2022, the leave to appeal granted to the Applicant is hereby automatically vacated without the need for any further Order or assurances of this Court or any other Court of law.
5. There shall be no order as to Costs
BATURE ISAH GAFAI, J.C.A.: I was privy to the reasonings profoundly expressed in the lead Judgment by my learned brother Barka, JCA. I agree with and adopt those reasonings as mine; by which I too reached the same conclusion as did my learned brother.
For the sake of emphasis only, I shall however add a few words in the same direction.
Let it be known loudly and clearly that the Applicant by its own volition, without any prompting or suggestion by this Court, expressly withdrew the second prayer on its Application by which, as may be recalled, it was set to seek for an Order by this Court “staying the execution of the Order of the National Industrial Court…..in suit no NICN/ABJ/270/2022…..pending the hearing and determination of the interlocutory Appeal”. Let it also be recalled that the Applicant’s third Prayer is for “any other Order or Orders this honourable Court may deem fit to make in the circumstance of this case”.
The Applicant’s second Prayer for stay of execution of the existing Order by the lower Court inherently and essentially admits two significant legal realities; first being the trite position in law that Orders of Court must be obeyed unless stayed by another Order of the Court itself or an Appeal Court and secondly but more importantly here that the Applicant’s prayer seeking for the Order is an admission that the Order sought is not merely there for the asking but has to be merited upon satisfactory reasons. If it were as of right, or if the Applicant truly believed it owed no duty to obey the lower Court’s Order, it certainly would not have been minded to seek for its stay. Regardless of the Applicant’s request to withdraw its prayer seeking for a stay of execution, the bottomline is that the Applicant is not under any misconception of the correct legal position; that it must comply with the lower Court’s Order unless, as it had originally set out to seek, the Order is stayed by this Court. This is trite law. See Zakirai vs. Muhammad & Ors (2017) LPELR – 42549 (CA).
Now that the Applicant has withdrawn its prayer seeking for stay, it renders the position of the Applicant even more imminent to obey the lower Court’s Order as this Court cannot grant a Relief which by the Applicant’s considered view is no longer desirable or expedient in its circumstances. In effect, the Applicant shall obey the lower Court’s Order promptly.
This leads me further into the first prayer of the Applicant; to wit: ’’for an Order granting the Applicant leave to appeal against the interlocutory Ruling of the National Industrial Court..”, Here too, to begin with, is an open concession, without prompting, by the Applicant that the leave they seek is discretionary. This is corroborated by the Applicant’s specific statement on its Motion that it is seeking the leave pursuant to Section 243 (3) of the Constitution FRN 1999 as amended. Section 243(3) provides that an Appeal from the decisions of the National Industrial Court shall only be with the leave of this Court. Leave simply means permission. Permission is never a product of compulsion but one rooted in choice upon a calm, proper consideration of the reasons for the permission sought. Therein lies the discretionary power of the Court under Section 6(6) (b) of the Constitution as rightly alluded to by the Applicant on its Motion. Has the Applicant supplied enough material to merit the leave of this Court to appeal against the interlocutory Ruling of the lower Court?
In my humble view, I am satisfied that it did. In the leading Ruling, my learned brother has articulated our reasons for this conclusion. I think it is unnecessary to rehearse same here.
I have earlier hinted what the Applicant is seeking in its third Prayer, i.e. for other Order or Orders this honourable Court may deem fit to make in the circumstance of this case”. It is a prayer which the Appellant rests wholly on what the Court considers fit to make in the circumstances of the entire facts and applicable legal principles on the Motion. We considered the full facts on the Motion. We considered the general legal principles on the prayer for leave. We considered the circumstances of the entire Motion. We believe that this Court has a duty to maintain an unquestionable balance of fairness based on law and rule of law.
Firstly, it is in law stricto sensu unnecessary to order the Applicant to comply with the lower Court’s Order because there is nothing in law allowing or hinting the contrary. This Court simply re-echoes and reiterated the obligation on the Applicant to comply with the Order.
Secondly, it is in order to ensure due compliance with the lower Court’s Order that we reasoned that while we accede to the Applicant’s prayer for leave to appeal, such leave shall however be granted upon a level scale of justice and rule of law. In Ngere & Anor vs. Okuruket & Ors (2014) LPELR -22883 (SC), the Apex Court held thus:
“Parties are bound to obey Court Orders that are clear and unambiguous, notwithstanding the fact that the Order may be wrong. So long as a party refuses to implement or obey a Court Order he would not be given a hearing in any subsequent application…”
Thus, as expatiated by my learned brother in the leading Ruling, the “Order or Orders this honourable Court may deem fit to make in the circumstance of this case” is that the Applicant be and is hereby granted leave to appeal subject to its compliance with the lower Court’s Order. In effect, the Applicant cannot file any Notice of Appeal against the Ruling of the lower Court unless it complies with the lower Court’s Order. I so Order.
Appearances:
Femi Falana, SAN with him, Femi Adedeji, Esq. and Abubakar Marshall, Esq. For Appellant(s)
J.U.K Igwe, SAN with him, Senator (Dr.) Ita Enang, Chukwulo Moedu, Esq, Senator Osita Izunaso, Matthias Agboni, Esq. C.M. Edozie, Esq, Valentine Nonso, Esq. For Respondent(s)
