EMANA v. ASSOCIATION OF NATIONAL OLYMPIC COMMITTEES OF AFRICA
(2022)LCN/16472(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, September 23, 2022
CA/ABJ/ROA/CV/313M1/2022(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
BatureIsahGafai Justice of the Court of Appeal
Between
ELISABETH EMANA APPELANT(S)
And
ASSOCIATION OF NATIONAL OLYMPIC COMMITTEES OF AFRICA RESPONDENT(S)
RATIO:
GIVING GOOD GROUNDS ON WHY AN APPEAL SHOULD BE HEARD
The Notice of Appeal must evince prima facie good grounds why the appeal should be heard. See GeofreyEzeukwu v. Federal Republic of Nigeria (2022) LPELR – 56894 (CA); Economic & Financial Crimes Commission v. Anthony OmoOkoh& Anor. (2021) LPELR- 54855 (CA) and Braithwaite &Ors. v. Dalhatu (2016) All FWLR (Pt. 846) 202. I have studiously considered the Proposed Notice of Appeal annexed to the Affidavit in support of the motion. I am of the view that the sole ground of appeal has disclosed goodand recondite point of law which should be heard. HARUNA SIMON TSAMMANI, J.C.A
THE EXTANT LAW AS IT RELATES TO AN APPLICATION OF THE CONSTITUTION
In reply on Point of Law, learned counsel for the Applicant contended that, the extant law as itrelates to an application of this nature is governed by Section 243(3) of the 1999 Constitution. That the said provision of the Constitution did not say that an appeal from the decision of the National Industrial Court to the Court of Appeal shall be with leave of the National Industrial Court. Therefore, that the argument of the Respondent that, the Application ought to have been first filed at the National Industrial Court is misconceived as it does not reflect the provision of the Constitution which gives right of appeal. We were accordingly urged to reject the argument of the Respondent that the Application contravenes Order 6 Rule 4 of the Court of Appeal Rules, 2021. HARUNA SIMON TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgement): This ruling is in respect of a Motion on Notice filed on 24/3/2022 wherein the Applicant sought the following reliefs:
1. AN ORDER enlarging/extending the time within which the Appellant/Applicant may seek leave to appeal the ruling of the National Industrial Court, Abuja hereinafter referred to as the “Court below”, Coram Oyewunmi, J in Suit No: NICN/ABJ/260/2019 between: Elisabeth Emana v. Association of National Olympic Committees of Africa delivered on March 12th, 2020.
2. AN ORDER granting the Appellant/AppIicant leave to appeal against the ruling of the Court below, Coram Oyewunmi, J. in Suit No: NICN/ABJ/260/2019 between Elisabeth Emana v. Association of National Olympic Committees of Africa delivered on March 12th, 2020.
3. AN ORDER enlarging time within which the Appellant/Applicant is to appeal against the ruling of the Court below, Coram Oyewunmi, J in Suit No: NICN/ABJ/260/2019 between Elisabeth Emana v. Association of National Olympic Committees of Africa delivered on March 12, 2020.
The Grounds upon which the Application is predicated are as follows:
(a) The Court below delivered ruling in this matter striking out and/or dismissing the suit at the Court below on grounds of diplomatic immunity.
(b) The issues do not arise from issues of fundamental human rights.
(c) That the leave of the Court will be required to appeal against the decision of the Court below on issues other than fundamental human rights.
(d) The reason for the delay was that the Applicant could not afford the cost of appealing the decision of the Court below having been unlawfully dismissed from work.
(e) That the Applicant now has the financial wherewithal to prosecute the appeal to its logical conclusion.
(f) The issues arising from the appeal are on serious issues of law which require the review of this Honourable Court.
(g) The interest of justice will be best served if the application is granted.
The Motion is supported by an Affidavit of 6 paragraphs deposed to by one Abdulhadi Mubarak, a Legal Practitioner at the Lawfirm of Karis Attorneys, counsel for the Applicant. Accompanying the motion is a Written Address also filed on 24/3/2022. Attached to the Application is the judgment sought to be appealed against and the Proposed Notice of Appeal.
In opposition to the Application, the Respondent filed a Counter-Affidavit of 5 paragraphs deposed to by one Jonathan Dyagas, the Finance Director at the Respondent. The Counter-Affidavit is accompanied by a Written Address in opposition to the Application. In reaction to the Counter-Affidavit, the Applicant filed a Reply Affidavit of 14 paragraphs, also deposed to by Abdulhadi Mubarak counsel in the Lawfirm of Karis Attorneys of counsel for the Applicant; and a Written Address.
Now, arguing the motion, learned counsel for the Applicant contended that, the issue to be considered in this Application is:
“Whether the Appellant/Applicant is entitled to the reliefs sought on the face of the motion paper”
Learned counsel then submitted that, by the provisions of Section 243(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), appeals from the National Industrial Court that do not relate to questions of fundamental rights shall be with the leave of the Court of Appeal. The case of Skye Bank Plc. v. Iwu (2017) LPELR – 42595 (SC) was cited in support. That this Court has through a plethora of cases, established the criteria for a favourable exercise of discretion in respect of an application for extension of time to seek leave to appeal and/or to appeal out of time as in the instant case. That in such Application, the Applicant is required to show:
(a) Good and substantial reason for failure to appeal within the prescribed period.
(b) Grounds of appeal with prima facie evidence to show good cause why the appeal should be heard.
Learned counsel referred to the cases of FHA V. Kalejaiye (2010) 12 SC (Pt. III) and Ogundimu v. Kasunmu (2006) SC and paragraph 5(d) of the Affidavit in support to submit that, where facts are stated to the effect that the Applicant could not afford the financial implication of initiating the appeal, time will be extended for leave to appeal.
Learned counsel also cited the case of Enyi Bros. Processing Co. Ltd. & Anor. v. NDIC & Anor. (2007) LPELR – 1149 (SC) to further submit that, the law is settled that, where the Applicant’s Proposed ground of appeal reveals substantial and arguable grounds, good grounds would have been shown why the appeal should be heard. That in the instant case, the sole ground which the Applicant intends to rely upon in challenging the ruling of the trial Court is crucial and fundamental to the success of the appeal. Particularly that, the issue of diplomatic immunity applies in Employer/Employee relationships or contract is germane to the success of this appeal which now requires extension of time by this Court to seek leave to appeal.
Learned counsel for the Applicant went on to submit that, the Applicant has satisfied the criteria upon which this Court can exercise its discretion to grant the Application. That the judgment of the Court below Exhibit (EE1) and the Proposed Notice of Appeal Exhibit (EE2) have disclosed a proper case for the exercise of our discretion. That this Court has the power to grant this Application by virtue of Order 6 Rule 9 of the Court of Appeal Rules, 2021. On that note, we were urged to grant the Application in the interest of justice.
In response, learned counsel for the Respondent is of the view that, the issue to be determined in this Application is:
“Whether given the facts as set out in the supporting Affidavit, the Applicant has offered substantial and cogent reasons making the Application meritorious for the grant of leave to appeal”.
Learned counsel then submitted that, this Application is in breach of Order 6 Rule 4 of the Court of Appeal Rules, 2021. Furthermore, that the Application is bereft of all known legal principles. That in making the Application, the Applicant did not make full and frank disclosure of her financial status by exhibiting her statement of account. The cases of SPDC (Nig.) Ltd. v. Okei (2006) 17 NWLR (Pt. 1007) 1 and Fasel Services Ltd. & Anor. v. NPA (2001) NWLR (Pt. 723) 35 were then cited to submit that, the Applicant has not established special circumstances which rendered it impossible for her to file this Application at the National Industrial Court. The case of Nigerian National Petroleum Corporation & Anor. v. Odidere Ltd. (2007) LPELR- 8173 was then cited in support; and to further submit that the extant Rules of this Court makes it mandatory for same to have been first filed at the Court below. We were accordingly urged to strike out the Application for violating Order 6 Rule 4 of the Court of Appeal Rules, 2021.
Learned counsel for the Respondent went on to submit that, an Application such as this is not granted automatically. That the Applicant is required to disclose sufficient facts which would enable the Court to exercise its discretion whether or not to grant the Application. The case of Mr. Benjamin Ochal v. M. L. Mande Enterprises Ltd. & Ors. (2021) LPELR- 54888 was cited in support, and to further submit that, a look at the Affidavit in Support of the Application and the Proposed Notice of Appeal would reveal that the Applicant has not presented any genuine reason why the Application for leave should be granted. In other words, that the Applicant has not satisfied the requirements for this Court to exercise its discretion in his favour. Furthermore, that the Applicant has failed to show that the Notice of Appeal contain arguable grounds of appeal. That in the circumstances, the Applicant failed to show that there are special or exceptional circumstances to warrant the grant of the Application. We were accordingly urged to refuse the Application and to dismiss same.
In reply on Point of Law, learned counsel for the Applicant contended that, the extant law as it relates to an application of this nature is governed by Section 243(3) of the 1999 Constitution. That the said provision of the Constitution did not say that an appeal from the decision of the National Industrial Court to the Court of Appeal shall be with leave of the National Industrial Court. Therefore, that the argument of the Respondent that, the Application ought to have been first filed at the National Industrial Court is misconceived as it does not reflect the provision of the Constitution which gives right of appeal. We were accordingly urged to reject the argument of the Respondent that the Application contravenes Order 6 Rule 4 of the Court of Appeal Rules, 2021.
On the contention that the Applicant did not make full and frank disclosure of her financial status, learned counsel referred us to Exhibit EE3 which is the Applicant’s Statement of Account as at April, 2020 which showed that she was indeed impecunious and therefore could not process the appeal at that time. It was further argued that the subject matter of the dispute being on employment contract, impecuniosity is a special circumstance that would warrant the grant of extension of time to appeal. The case of COP Anambra State v. Nwoyeugo (2017) LPELR-42737 (CA) was cited in support. We were accordingly urged to hold that the Application has merit and to grant same.
Now, it is not in doubt that the decision sought to be appealed against is that of the National Industrial Court of Nigeria. Section 243(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulates that:
“243 (3) 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”.
Generally, except where an appeal from the decision of the National Industrial Court relates to questions of fundamental right, any other appeal to this Court from the decision of the National Industrial Court shall be with the leave of this Court. Before I proceed, I wish to note that, the Respondent has raised an issue, which amounts to an objection to the competence of this Application. It has been argued that the Applicant did not first file the Application in the Court below as required by Order 6 Rule 4 of the Court of Appeal Rules, 2021. The said Order 6 Rule 4 stipulates that:
“Wherever under these Rules an application may be made either to the lower Court or to the Court, it shall not be made first in the first instance Court, except where there are special circumstances which make it impossible or impracticable to apply to the lower Court”.
The above-cited provision read along with the proviso to Section 243 (3) of the Constitution will show that the said Rule of Court is not applicable in the circumstances of this Court. I say so because the proviso to Section 243 (3) gives power only to the Court of Appeal to grant leave to appeal. It does not prescribe that the application for leave “may be made either to the lower Court or to the Court of Appeal” as is stipulated in Section 242 (1) of the 1999 Constitution. It is therefore my view that, an applicant exercising the right to seek leave to appeal the decision of the National Industrial Court, need not make the application to the lower Court. Thus, an application first made to this Court will be competent. I therefore hold that this Motion is competent.
Now, it is apparent that the Applicant did not seek leave to appeal within the time stipulated by Section 24 (2) (b) of the Court of Appeal Act (as amended). In that respect, he has as required by law, filed this Application seeking extension of time to seek leave to appeal.
Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 stipulates that:
“Every application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard… ”
It is clear therefore, that a person seeking extension of time within which to appeal shall file an affidavit in support of his application which must disclose the following facts:
(a) good and substantial reasons for failure to appeal within the prescribed period; and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions stipulated above must co-exist before the Application can be granted. See N.N.P.C. v. O. E. (Nig.) Ltd. (2008) NWLR (Pt. 1090) 583; E.F. Co. Ltd. v. N.D.I.C. (2007) 9 NWLR (Pt. 1039) 216 and Nigeria Laboratory Corp. v. P. M. B. Ltd.(2012) 15 NWLR (Pt. 1324) 505. See also Olatubosun v. Texaco (Nig.) Plc. (2012) 14 NWLR (Pt. 1319) 200.
I have carefully perused the Applicant’s Affidavit in support of the Application including the exhibits annexed thereto. The Applicant contended in the grounds for bringing the Application as follows:
(iv) The reason for the delay was that the Applicant could not afford the cost of appealing the decision of the Court below, having been unlawfully dismissed from work.
The Applicant therefore deposed in paragraphs 5(d) and (e) of the Affidavit in Support of the Application as follows:
(d) That the reason for the delay was that the Applicant could not afford the cost of appealing the decision of the Court below since she had just been dismissed from work and could not afford bankrolling an appeal process.
(e) The family of the Applicant who felt distraught by the injustice meted out on their member decided to pool resources together for the Applicant to finance the appeal process.
It is therefore the case of the Applicant that the failure to file the Application within the time stipulated by the Court of Appeal Act, was due to her impecuniosity. The Applicant exhibited a copy of her statement of account as Exhibit EE3, to support her plea of impecuniosity. See Exhibit EE3 annexed to the “Reply Affidavit” to the Counter Affidavit. It has been held that impecuniosity is a good reason for delay in appealing. See Bwala v. Ashaka Cement Plc. (2010) LPELR – 3898 and Dr. Abdullahi Iliyasu v. Ramat Polytechnic Maiduguri (2022) LPELR-56964 (CA).
The Notice of Appeal must evince prima facie good grounds why the appeal should be heard. See Geofrey Ezeukwu v. Federal Republic of Nigeria (2022) LPELR – 56894 (CA); Economic & Financial Crimes Commission v. Anthony OmoOkoh& Anor. (2021) LPELR- 54855 (CA) and Braithwaite &Ors. v. Dalhatu (2016) All FWLR (Pt. 846) 202. I have studiously considered the Proposed Notice of Appeal annexed to the Affidavit in support of the motion. I am of the view that the sole ground of appeal has disclosed good and recondite point of law which should be heard.
Having held as above, I am of the view that this Application has merit. It is accordingly granted. I therefore order as follows:
1. That time is enlarged for the Applicant within which to seek leave to appeal against the ruling of the National Industrial Court of Nigeria, Abuja Division delivered by O. O. Oyewunmi, J on the 12th day of March, 2020 in Suit No: NICN/ABJ/260/2019 Between: Elisabeth Emana vs. Association of National Olympic Committees of Africa.
2. That leave is granted enlarging the time within which the Applicant may appeal against the ruling of the National Industrial Court of Nigeria delivered by O. O. Oyewunmi, J on the 12th day of March, 2020 in Suit No: NICN/ABJ/260/2019 Between: Elisabeth Emaka v. Association of National Olympic Committee of Africa.
3. That leave is granted to the Applicant to appeal against the ruling of the National Industrial Court of Nigeria delivered on the 12th day of March, 2020 in Suit No: NICN/ABJ/260/2019 Between: Elisabeth Emana v. Association of National Olympic Committees of Africa.
4. The Notice of Appeal to be filed within 14days from today.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the decision of my learned brother, Haruna Simon Tsammani, JCA, which has just been delivered.
I entirely agree with, and do not desire to add to the said decision.
I adopt the entire decision as mine, with nothing more to add.
BATURE ISAH GAFAI, J.C.A.: I was privy to the reasonings and conclusion expressed by my learned brother Haruna Simon Tsammani, JCA. I adopt those reasonings as mine; by which I too allow the Application in terms of the Orders made on same in the lead ruling.
Appearances:
Lucy Chinazor Onyebuisi, Esq. For Appellant(s)
N. F. John, Esq. with him, Ademola Ajaji, Esq. For Respondent(s)
