INCORPORATED TRUSTEES OF ABA SPORT CLUB & ORS v. NWAOBIWE
(2020)LCN/14015(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, March 27, 2020
CA/OW/341M/2019(R)
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
1. THE INCORPORATED TRUSTEES OF ABA SPORT CLUB 2. DR. UWA ONWUCHUEKWA 3. SIS. EMEKA NWAEKWE APPELANT(S)
And
ELDER PETER NWAOBIWE RESPONDENT(S)
RATIO
THE POSITION OF LAW BARRING RIGHT OF APPEAL FROM THE DECISIONS OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA
The rigid position, barring right of appeal from the decisions of National Industrial Court of Nigeria, as per the provisions of the 3rd Alteration Act (Section 254 D of the 1999 Constitution, as Amended), other than in criminal and fundamental rights matters, was recently reviewed by the Supreme Court in the case of Skye Bank Plc Vs Iwu (2017) LPELR – 42595 SC, when it held that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, where the appeal falls outside questions of Criminal causes and fundamental rights matters it held: “Now, since by Section 254D(1), the trial Court(NICN) ranks equi-pollently, as a Court of coordinate jurisdiction with the High Court, its inclusion in Section 240, a logical corollary means that it comes within the categories of trial Courts over which the lower Court (Court of Appeal) exercises appellate jurisdiction… that since the Constitution has conceded rights of appeal to litigants in one section, the draft person could not have been minded to strip them of such rights in another section of the Constitution. In effect, Sections 243(2) and (3) cannot validly strip litigants of the rights, expressly, conferred on them by Sections 240 and 243(4), without an express provision to wreak that kind of unjustifiable, denudation of the latter right, that is, the right in Sections 240 and 243(4) (supra). Gassol Vs Tutare and Ors (2013) LPELR – 20232 SC; AG Fed. Vs Abubakar (2007) ALL FWLR 1264, 1300 a” Per Nweze JSC.
The said case of Skye Bank Plc Vs Iwu (supra) also appears to have specified how application for leave to appeal against the decision of the National Industrial Court could be made, when it held: “In my humble view, in the exercise of right of appeal against the decisions of the trial Court, which Section 240 (supra) bequeaths to him and with respect to Section 243(4), “any appeal from any civil jurisdiction”, all a prospective appellant needs do is to amble within the compass of Section 24(1) of the Court of Appeal Act, an extant enactment of the National Assembly…”
As expected, the application must be properly couched, and where it is brought outside the time stipulated by law for filing appeal, compliance must be had to the trinity prayers – seeking leave to apply for leave to appeal, leave to appeal, and for extension of time to appeal. See Order 6 Rules 6 of the Court of Appeal Rules, 2016, and the case of Braith-Waite & Ors Vs Dalhatu (2016) LPELR – 40301 (SC); The Nigerian Air Force Vs Wing Commander T.L.A. Shekete (2002) LPELR – 3193 (SC); Adelekan Vs ECU – Line N.V. (2006) LPELR – 113 (SC). PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants/Applicants brought this application on 20/9/2019, seeking the following reliefs:
1) An order granting leave to the Appellants/Applicants to appeal against the judgment of the National Industrial Court of Nigeria holding at Owerri, delivered on 16th September, 2019, in Suit No. NICN/OW/87/2014: Elder Peter Nwaobiwe V. Incorporated Trustees of Aba Sports Club and 2 ORS, in terms of Exhibit ‘B’ in the affidavit in support of the application
2) An order staying the execution of the judgment… pending the determination of the Appeal.
And for such further Order(s) as the Honourable Court may deem fit to make in the circumstances”.
The Application was supported by 5 grounds, as follows:
1) Judgment was given against the Appellants/Applicants on the 16th September 2019 by the Court below
2) The Appellants/Applicants’ right of appeal against the said Judgment is contingent upon the leave of this Honourable Court.
3) The Appellants/Applicants desire to exercise their right of appeal in terms of the Exhibit ‘B’ in supporting
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affidavit.
4) It is necessary to stay the execution of the judgment of the lower Court in order not to render the appeal nugatory.
5) The Court has ample powers to grant the application.
Appellants/Applicants also deposed to affidavit (by Egobure Patrick, Litigation Secretary in the Chambers of Obianwu Obiora Esq, SAN – Appellants’ Counsel) as to the facts relating to the grounds for the application. They also averred that:
“The Respondent, since 21/7/14, when he was dismissed from the services of the 1st Applicant had been without job and cannot repay the judgment sum of one Million, Two Hundred and Fourteen Thousand Naira (N1,214,000.00) only, awarded by the lower Court, if he levys (sic) execution of the judgment and the Appeal succeeds”. (Paragraph 6 of the supporting Affidavit).
Appellants/Applicants also attached Exhibits ‘A’ (Judgment appealed against) and ‘B’ (proposed grounds of the Appeal) to the application.
Moving the motion on 16/3/2020, Applicants’ Counsel urged us to grant the motion in the interest of Justice. Appellants/Applicants also filed an affidavit of
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urgency to the effect that Respondent had:
“Started taking steps in the lower Court to levy execution of the judgment of the lower Court,…that without a date given for the hearing of the application, the Respondent will levy execution of the judgment of the lower Court thereby rendering the Appeal nugatory.” (Paragraphs 5 and 6 of the Affidavit of urgency).
The Respondent filed a counter affidavit of 9 paragraphs to oppose the application, particularly, the prayer for stay of execution and the allegation that he cannot repay the judgment sum, if the Appeal favours the Appellants. He said in paragraph 6 of the counter affidavit:
“That paragraph 6 of the affidavit is false and accordingly denied. In answer I aver that it is not true that I have been idle and without job, since Appellants wrongly dismissed me from their employment. The true position is that I have been doing business with which I take care of my family, and also able to retain the services of Counsel who has been handling this matter for me. It is not true that I will not be able to repay the judgment sum of one Million, Two hundred and fourteen
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thousand Naira (N1,214,000.00), if this appeal succeeds.”
The Respondent also averred that the Exhibit B (Grounds of the Appeal) did notraise any recondite point of law, according to his Counsel, Iheukwumere Onwuchekwa Esq, who at the hearing of this application, urged us to refuse the application, and to dismiss it.
RESOLUTION OF THE ISSUES
Have the Appellants/Applicants satisfied the legal requirements for grant of leave to appeal, and for stay of the execution of the judgment of the lower Court pending the determination of the Appeal?
The rigid position, barring right of appeal from the decisions of National Industrial Court of Nigeria, as per the provisions of the 3rd Alteration Act (Section 254 D of the 1999 Constitution, as Amended), other than in criminal and fundamental rights matters, was recently reviewed by the Supreme Court in the case of Skye Bank Plc Vs Iwu (2017) LPELR – 42595 SC, when it held that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, where the appeal falls outside questions of Criminal causes and fundamental rights matters it held:
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“Now, since by Section 254D(1), the trial Court(NICN) ranks equi-pollently, as a Court of coordinate jurisdiction with the High Court, its inclusion in Section 240, a logical corollary means that it comes within the categories of trial Courts over which the lower Court (Court of Appeal) exercises appellate jurisdiction… that since the Constitution has conceded rights of appeal to litigants in one section, the draft person could not have been minded to strip them of such rights in another section of the Constitution. In effect, Sections 243(2) and (3) cannot validly strip litigants of the rights, expressly, conferred on them by Sections 240 and 243(4), without an express provision to wreak that kind of unjustifiable, denudation of the latter right, that is, the right in Sections 240 and 243(4) (supra). Gassol Vs Tutare and Ors (2013) LPELR – 20232 SC; AG Fed. Vs Abubakar (2007) ALL FWLR 1264, 1300 a” Per Nweze JSC.
The said case of Skye Bank Plc Vs Iwu (supra) also appears to have specified how application for leave to appeal against the decision of the National Industrial Court could be made, when it held:
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“In my humble view, in the exercise of right of appeal against the decisions of the trial Court, which Section 240 (supra) bequeaths to him and with respect to Section 243(4), “any appeal from any civil jurisdiction”, all a prospective appellant needs do is to amble within the compass of Section 24(1) of the Court of Appeal Act, an extant enactment of the National Assembly…”
As expected, the application must be properly couched, and where it is brought outside the time stipulated by law for filing appeal, compliance must be had to the trinity prayers – seeking leave to apply for leave to appeal, leave to appeal, and for extension of time to appeal. See Order 6 Rules 6 of the Court of Appeal Rules, 2016, and the case of Braith-Waite & Ors Vs Dalhatu (2016) LPELR – 40301 (SC); The Nigerian Air Force Vs Wing Commander T.L.A. Shekete (2002) LPELR – 3193 (SC); Adelekan Vs ECU – Line N.V. (2006) LPELR – 113 (SC).
In this case, Appellant brought this application on 20/9/19, barely 4 days, after the delivery of the judgment on 16/9/2019. Being a final Judgment, Appellants were entitled to 90 days to file their Notice of Appeal,
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but being a decision of the National Industrial Court, they could not file the Notice of Appeal, directly, without the leave of this Court, first sought and obtained, since the case was not founded on criminal trial or fundamental right proceedings. See National Union of Hotels & Public Enterprises (2019) LPELR – 48725 (CA). Tsado Vs Registrar, Federal University of Technology, Minner & Ors (2019) LPELR – 48745 CA. Skye Bank P.L.C. Vs Iwu (supra).
I think, in the circumstances that Appellants had brought this application promptly and timeously to appeal, they have no duty to justify any delay to appeal. But this Court has a duty to scrutinize their proposed grounds of appeal, whether the same disclose(s) any good and arguable issue to be argued on appeal to warrant the grant of the application. See FRN Vs Wabara & Ors (2013) LPELR – 20083 SC Dick Mann Vs Musa Pyam (2019) LPELR 47780 (CA); Iwunze Vs FRN (2014) LPELR – 22254 SC.
Appellants/Applicants have disclosed 9 grounds of Appeal in Exhibit B (the proposed grounds of appeal), as follows (without their particulars):
1) The learned trial judge breached the
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Defendants rights to a fair hearing by refusing to consider and resolve Defendants’ challenge to the competence of the suit before the Court.
2) The Court below erred in law when it issued “A consequential order converting the purported dismissal of the claimant to termination having found that his letter of dismissal referred to clause 17 of the employee’s handbook.”
3) The Court below caused a grave miscarriage of justice and violated the Defendants right to a fair “hearing when it ordered 5. The total sum of 2 and 3 above are, to be paid to this claimant within 30 days from the date of pronouncement of this judgment which sum shall in default of payment attract a 5% increase per month until it is fully and finally liquidated”.
4) The Court below misdirected itself in law and consequently caused a miscarriage of justice when it held:
“It therefore goes, without saying that the burden of establishing that this claimant was dismissed from his employment lies on the Defendants because they are the ones required to prove the existence and positivity of the fact which they alleged”
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5) The learned trial judge erred in awarding One Million Naira (N1,000,00) general damages to the claimant.
6) The Court below erred in law in its conclusion that the claimant’s employment was wrongly determined or terminated.
7) The learned trial Court erred in law in finding that the claimant’s “Dismissal was unjustifiable, wrongful or unfair in the absence of any fair hearing preceding such measure.”
8) The judgment is against the weight of evidence
9) The Court below erred in entering judgment jointly and severally against the Defendants”
The above grounds, particularly 1 to 7, appear to throw up serious grounds of law and facts, or mixed law and fact, which are good for consideration on appeal.
I therefore see merit in the application, to allow Applicants leave to appeal against the decision of the trial Court in Exhibit A.
But I do not see why the 2nd prayer, which is application for stay of the execution of the judgment, pending appeal, should be granted, at this stage, especially as the Appellants are yet to file the Appeal. I rather think Appellants/Applicants should be ordered to pay the
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judgment sum, namely the sum of One Million, Two Hundred and Fourteen Naira (N1,214,000.00) only, awarded to the Respondent by the lower Court, into the Registry of this Court, for the Deputy Chief Registrar (DCR) of this Court to place same in an interest yielding account pending the determination of the appeal. The judgment shall be made in a reputable Bank to be agreed upon by the parties, for whoever will succeed in the Appeal. The said payment or deposit of the said judgment sum with the Registry of this Court, as stated above, is hereby ordered, and shall remain a condition for the hearing of the Appeal.
The application is therefore, granted in respect of prayer 1, on the condition stated above, Appellants/Applicants are hereby allowed 21 days to file their said Notice and grounds of Appeal, as per the Exhibit ‘B’, at the Registry of the lower Court, and upon filing the Notice and grounds of Appeal, to deposit the said judgment sum in this Court, within 30 days of filing the appeal, or upon transmitting the Records of Appeal to this Court.
Parties to bear their respective costs of this application.
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RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I entirely agree with my brother I. G. Mbaba J.C.A. in this Ruling, abiding by the orders therein made.
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Appearances:
O.C. AJUZIE ESQ For Appellant(s)
IHEUKWUMERE ONWUCHEKWA ESQ For Respondent(s)
