CHEVRON (NIG) LTD v. ONYEAPUEMU & ORS (2022)

CHEVRON (NIG) LTD v. ONYEAPUEMU & ORS

(2022)LCN/16260(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, May 12, 2022

CA/L/PRE/ROA/CV/979M/2021(R)

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

CHEVRON NIGERIA LIMITED APPELANT(S)

And

1. AUGUSTINE ONYEAPUEMU 2. BENJAMIN ITODO 3. FELIX OMOSENI RESPONDENT(S)

RATIO:

THE RIGHT TO APPLY FOR LEAVE TO APPEAL

it is against the backdrop of the strict and mandatory provisions of the Electoral Act, which does not admit of exercise of discretion, that the Supreme Court made the pronouncement relied upon by the Respondent to submit that the application for leave must be made within 14 days of the ruling and the leave itself must be obtained within 14 days of the ruling.
Under the relevant provisions of the Court of Appeal Act, 2004, read together with the Court of Appeal Rules, 2021, the right to apply for leave to appeal does not become completely and totally extinguished after 14 days, as it is the case with election matters under which the case of PPA vs. INEC (supra) was decided. The law is that every case is only an authority for what it decided.

FILING A NOTICE OF APPEAL AND SEEKING THE 3 TRINITY PRAYERS

The current application simply seeks for leave to appeal. By the rules of Court, the application must be filed not later than 14 days after the delivery of the ruling complained of. Without the leave, first sought for and obtained, the Applicant cannot file a Notice of Appeal. What the Applicant exhibited to his application is only a proposed Notice of Appeal. It is only when the application is found to be meritorious and is granted that the Applicant can then be directed to file his Notice of Appeal, and since he is already out of time, he must seek the 3 trinity prayers. All these must, however, await and are dependent on the grant of leave to appeal, which is a condition precedent. The implication of what I have just posited is that, even if this application succeeds, the Applicant must file another application containing the three trinity prayers before the Notice of Appeal can be filed or where he files the Notice of Appeal, he must seek for the trinity prayers in order to regularise it.

THE PRATICE OF FILING INTERLOCUTORY APPEALS

THE ISSUES OF COMPETENCE AND JURISDICTION OF COURT

The issues of competence of action and jurisdiction of Court being threshold issues, the Applicant’s right of appeal will not be affected up to the final judgment. Limitation of action is a jurisdictional issue which can be raised even for the first time on appeal. In that wise, it would be more appropriate if the Applicant awaits the final determination of the merits of the case, so that, if he is still aggrieved, he can file his Notice of Appeal incorporating the issue he intended bringing by way of an interlocutory appeal as one of his grounds of appeal. Adopting this method will save precious judicial time and resources of the litigating parties. Since the Applicant’s right of appeal will not be extinguished at final judgment, prudence and good sense of justice dictates that this application should be refused, and it is hereby refused and dismissed. MUHAMMAD IBRAHIM SIRAJO, J.C.A.

MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgement): This application seeks for an order granting leave to the Applicant to appeal against the ruling of the National Industrial Court, Lagos Division delivered on 01/12/2021 in Suit No. NICN/LA/189/2019.

The application is predicated on seven grounds and supported by an affidavit of 17 paragraphs sworn to by one Ibukun Enigbokan, a Legal Practitioner in the law firm of Streamsowers & Kohn, counsel representing the Applicant.

The summary of the facts in support of the application as disclosed by the grounds and the supporting affidavit is that: The Applicant, as Defendant before the National Industrial Court, challenged the jurisdiction of the Court to entertain the suit of the Claimants, now Respondents, by way of a preliminary objection hinging on the fact that the action at the lower Court was statute barred. The Applicant also filed a motion on notice challenging the competence of the suit on the ground that it did not disclose any reasonable cause of action against the Applicant. In a ruling delivered on 01/12/2021, the National Industrial Court dismissed both the preliminary objection and the motion on notice. Being an interlocutory decision and a decision of the National Industrial Court, the leave of this Court is required for the Applicant to appeal. The proposed Notice of Appeal was annexed to the affidavit in support of the application as Exhibit IE-1 while the ruling appealed against is Exhibit IE-3 annexed to the further affidavit.

The Respondents opposed the application and in so doing filed a counter-affidavit of 9 paragraphs sworn to by one Damilola Badejo, a litigation clerk in the law firm of Salawu, Akingbolu & Co., counsel representing the Respondents. The crux of the Respondents’ opposition to the application is that the application filed on 15/12/21 is incompetent as there is no valid Notice of Appeal filed within two weeks of the ruling of the lower Cour t, which was delivered on 01/12/2021. That the application seeking leave to appeal ought to have been heard and granted within 14 days of the ruling of the lower Court. In other words, that the leave to appeal must be obtained within 14 days and the appeal also must be filed within 14 days. That the Applicant is already out of time and having not sought for extension of time, the application is rendered incompetent. The Respondents further contended that the grounds of appeal in the Proposed Notice of Appeal did not raise any triable and arguable issues, thereby rendering the Notice of Appeal frivolous.

In the written address in support of the application, learned counsel for the applicant framed the following issue for determination:
“Whether having regards to the provision of the law and the facts deposed to in the Affidavit in support of this application, this Honourable Court ought to exercise its discretion in favour of the Application and grant the Applicant leave to appeal the decision of the National Industrial Court delivered by Esowe .J. on 1st December 2021.”

Learned counsel submitted with reference to Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case of Skye Bank Plc v. Victoria Anaemem Iwu (2017) LPELR-4245 (SC), that the decisions of the National Industrial Court are appealable to this Court. He argued that it is because the decision sought to be appealed against is not one that relates to fundamental human rights, that necessitated the filing of this application for leave, since the Applicant, cannot appeal as of right. It was contended that the Applicant must first obtain leave before he can file a competent Notice of Appeal. Cited in support of this contention are the cases of Ehinlanwo v. Oke (2008) 16 NWLR (Pt.1113) 357; Kwara State University vs. Alao (2021) 15 NWLR (Pt.1799) 293. Counsel submitted that this Court is not enjoined at this stage to decide any point of law which will be decided at the hearing of the appeal, as the essence of exhibiting the grounds of appeal is only to show that there is good cause why the appeal should be heard, relying on Obikoya v. Wema Bank Ltd (1989) LPELR -2176 (SC). He noted that a look at the Proposed Notice of Appeal will reveal that the appeal is deeply rooted on a challenge to the jurisdiction of the lower Court to entertain the Respondents’ suit. On what the Court would consider in determining an application for leave to appeal, learned counsel referred the Court to the decision of this Court in Erokoro v. Government of Cross River State (1991) 4 NWLR (Pt.185) 322. He urged the Court to hold that this application is not vexatious or frivolous and to proceed to exercise its discretion in favour of the Applicant by granting the application.

Learned counsel for the Respondent also formulated a lone issue for determination in his written address:
“Given the facts and circumstances of this case, whether this Hon. Court can grant this application.”

Counsel submitted that this Court does not have jurisdiction to grant an application for leave to appeal outside the statutory period for appeal except extension of time is sought and obtained. This submission was made bearing in mind the fact that the period of filing an appeal against an interlocutory decision is 14 days in all civil cases. It was argued that the applicant was out of time and therefore his application is incompetent as both the leave and the appeal were supposed to be obtained and filed respectively within 14 days of the delivery of the ruling sought to be appealed against. The case of Progressive Peoples Alliance v. INEC & Anor (2012) 13 NWLR (pt. 1317) 215 S.C. was cited in support. The Court was urged to dismiss the application.

Resolution of the Application.
The jurisdiction of the Court of Appeal to entertain appeals from the National Industrial Court is provided for in Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered or amended) as follows:
“(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has Jurisdiction.
(3) An appeal shall only lie from the decisions of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.”

Learned counsel for the Applicant has conceded at paragraph 4.4 of his written address that the decision the Applicant is desirous of appealing against is not one that relates to fundamental human rights, hence this application, as the Constitution does not permit the Applicant to appeal as of right. This submission taken together with ground 3 of the grounds for the application which states:
“The decision sought to be appealed by the Applicant is a decision of the National Industrial Court and the Applicant must obtain the leave of this Honourable Court before the said decision can be appealed”,
clearly explained the purpose of the leave sought by the Applicant. The application for leave was made pursuant to Section 243 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in view of the fact that the decision sought to be appealed against does not relate to fundamental human rights. Section 24 (1) (b) of the Court of Appeal Act limits the period within which an appeal can be lodged at the Court of Appeal against an interlocutory decision to 14 days. There is no doubt that this application, filed on 15/12/2021 against the ruling of 01/12/2021, was filed on the 14th day after the ruling and therefore within time. Whether or not the application could be heard and determined within the 14 days allowed by the Court of Appeal Act is a matter within the internal administrative mechanism of the Court of Appeal for which the Applicant has no control. All that the Applicant is required to do is to ensure that he applied for leave to appeal within 14days, in which case, he does not require the trinity prayers. Once an application is filed within the time allowed, the duty of determining when the application would be taken becomes that of the Registry of the Court of Appeal. Can the law punish an applicant who filed his application within time, but due to administrative lapses on the part of the Registry or due to congestion as a result of sheer volume of work, as is commonly known with the Lagos Division of the Court of Appeal, the said application could not be heard and disposed of within 14 days? The answer must be an emphatic No. Once the application is filed within time, the Applicant has no further obligation to ensure or insist that it must be heard before a particular time. That is beyond him.
The case of Progressive Peoples Alliance v. INEC & Anor (supra), cited and heavily relied upon by the Respondent’s counsel in his submission that leave to appeal must not only be applied for within 14 days of the ruling, but that the leave itself must also be obtained within the said 14 days period otherwise the Applicant will be out of time, is inapplicable in the present application as the facts and circumstances of that case is clearly distinguishable from the facts and circumstances of the instant case. That case emanated from the decision of Election Petition Tribunal which refused the Applicants prayer for correction of names of parties and dismissed both the application and the petition for being incompetent. The Applicants sought for leave to appeal against the decision of the Tribunal and the Court of Appeal dismissed their application. On further appeal, the Supreme Court held that by the provision of Section 143 (1) and (2) of the Electoral ACT, 2010 (as amended), an appeal against the decision of a Tribunal shall be lodged within 21 days from the date of the decision, and that at the expiration of the 21-day period, the right of appeal or the right to seek leave to appeal is extinguished for good and for all times. The rule of procedure governing election matters is strict and sui generis, and it is against the backdrop of the strict and mandatory provisions of the Electoral Act, which does not admit of exercise of discretion, that the Supreme Court made the pronouncement relied upon by the Respondent to submit that the application for leave must be made within 14 days of the ruling and the leave itself must be obtained within 14 days of the ruling.
Under the relevant provisions of the Court of Appeal Act, 2004, read together with the Court of Appeal Rules, 2021, the right to apply for leave to appeal does not become completely and totally extinguished after 14 days, as it is the case with election matters under which the case of PPA vs. INEC (supra) was decided. The law is that every case is only an authority for what it decided.

The current application simply seeks for leave to appeal. By the rules of Court, the application must be filed not later than 14 days after the delivery of the ruling complained of. Without the leave, first sought for and obtained, the Applicant cannot file a Notice of Appeal. What the Applicant exhibited to his application is only a proposed Notice of Appeal. It is only when the application is found to be meritorious and is granted that the Applicant can then be directed to file his Notice of Appeal, and since he is already out of time, he must seek the 3 trinity prayers. All these must, however, await and are dependent on the grant of leave to appeal, which is a condition precedent. The implication of what I have just posited is that, even if this application succeeds, the Applicant must file another application containing the three trinity prayers before the Notice of Appeal can be filed or where he files the Notice of Appeal, he must seek for the trinity prayers in order to regularise it.

While all these are going on, the substantive suit before the lower Court would be kept in limbo, and only God knows when it would be resuscitated from the deep slumber. This is the very reason why the Supreme Court and this Court frowned at the practice of filing interlocutory appeals while the main suit is kept at bay if the point taken at the interlocutory appeal can be argued in a substantive appeal without any hindrance after the conclusion of the case at the lower Court. See Central Bank of Nigeria v. Akingbola & Anor (2019) LPELR-48807 (SC); Tukur v. Governor of Gongola State (1988) LPELR- 22 (SC).; Obiuweubi v. CBN (2011) LPELR-2185 (SC). What the Courts have always advised and encouraged parties and their counsel to do is to appeal interlocutory rulings along with the appeal against the final judgment in order to avoid unnecessary delay in the determination of the substantive suit before the lower Court.
My lords, the instant application sought for leave to appeal against the interlocutory ruling of the lower Court which held that the suit before it is not statute barred. The application before the lower Court challenges the competence of the suit and, afortiori, the jurisdiction of the Court to entertain the matter. The issues of competence of action and jurisdiction of Court being threshold issues, the Applicant’s right of appeal will not be affected up to the final judgment. Limitation of action is a jurisdictional issue which can be raised even for the first time on appeal. In that wise, it would be more appropriate if the Applicant awaits the final determination of the merits of the case, so that, if he is still aggrieved, he can file his Notice of Appeal incorporating the issue he intended bringing by way of an interlocutory appeal as one of his grounds of appeal. Adopting this method will save precious judicial time and resources of the litigating parties. Since the Applicant’s right of appeal will not be extinguished at final judgment, prudence and good sense of justice dictates that this application should be refused, and it is hereby refused and dismissed.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the leading ruling delivered by my learned brother Muhammad Ibrahim Sirajo, JCA. I agree with the legal reasoning and conclusion in it. l, too, dismiss the application. I abide by the consequential orders decreed in it.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I have read in advance in draft the lead ruling just rendered by my learned brother Muhammad Ibrahim Sirajo, JCA. I agree with the reasoning and the conclusion in the lead ruling that since limitation of action is a jurisdictional issue which can be raised even for the first time on Appeal, the Applicant should await the final determination of the case on the merits. If he is still aggrieved, he can appeal against the final Judgment.

I also refuse the application. It is accordingly dismissed by me.

Appearances:

Mrs. C. Unaegbunam with him, Mrs. Ibukun Enigbokan. For Appellant(s)

S. A. Salaudeen with him, I.P. Awo. For Respondent(s)