NICON AIRWAYS LTD & ANOR v. IWELUMO & ORS
(2021)LCN/14986(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, February 18, 2021
CA/A/714M/2017(R)
RATIO
APPLICATION: DISCRETIONARY POWER OF THE COURT TO GRANT AN APPLICATION SEEKING LEAVE TO APPEAL A DECISION
it is in the discretionary power of the Court to grant an application such as this i.e, leave to appeal a decision. But that discretion must not only be exercised judicially but judiciously.
In considering applications such as the present one, the Court, in exercising its discretion, must bear in mind the following two conditions circumscribed by the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules, which provisions must be satisfied conjunctively and not disjunctively – WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982. All NLR (part 1) – YONWUREN v. MONDERN SIGNS LTD (1985)1 N.W.L.R. (part 2) 244; UNIVERSITY OF LAGOS V. AIGORO. (1985)1 NWLR. (part 1)143.
The second condition is the length of time that has elapsed between the date of the judgment sought to be appealed against, and the filing of the application. This constitutes a major considerating material factor in deciding whether or not to extend time as prayed.
Notwithstanding the length of time, time may still be extended if the delay is sufficiently explained —OJORA V. BAKARE (1976)2 SC.39.
It can also be considered if the failure to appeal timeously was due to the true and genuine mistake or error of judgment of counsel.
Where it appears to the Court that the delay was occasioned by the genuine mistake of counsel, it will be up to the Respondent to show in what respect he would be prejudiced if the indulgence sought, is granted. PER RITA NOSAKHARE PEMU, J.C.A.
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. NICON AIRWAYS LTD 2. CHIEF DR. JIMOH IBRAHIM APPELANT(S)
And
- MR. HENLY IWELUMO 2. MR. LUCKMON KOLAWOLE 3. MR. GEORGE OMINIYI 4. MRS. EUNICE ONEY For Themselves And On Behalf Of And Representing All Members Of Staff Of Nicon Airways Ltd. Whose Salaries And Allowance Have Not Been Paid By The Defendants Since May, 2007. 5. CAPTAIN IDRIS ICHALLA WADA RESPONDENT(S)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): By notice in a motion, filed on the 19th of October, 2017, the Appellants/Applicants seek the following orders of court viz
1. AN ORDER extending time within which the Appellants/Applicants may seek leave to appeal against the judgment of the National Industrial Court of Nigeria sitting at Abuja (Coram: The Honourable Justice M. N. Esowe) delivered on 16th September, 2013 in suit NO NICN/LA/192/2011 between Mr. Henry IWELUMO & 3 ORS V. NICON AIRWAYS LIMITED & 2 ORS.
2. AN ORDER granting leave to the Appellants/Applicants to Appeal against the judgment of the National Industrial Court of Nigeria sitting at Abuja (Coram: The Honourable Justice M.N. Esowe) delivered on 16th September, 2013 in suit No. NICN/LA/192/2011 between MR. HENRY IWELUMO & 3 ORS V. NICON AIRWAYS LIMITED & 2 ORS on grounds other than grounds of law alone.
3. AN ORDER enlarging the time within which the Appellants/Applicants may appeal against the judgment of the National Industrial Court of Nigeria sitting at Abuja (Coram: The Honourable Justice M.N. Esowe) delivered on 16th September, 2013 in suit No.
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NICN/LA/192/201 between MR. HENRY IWELUMO & 3 ORS V. NICON AIRWAYS LIMITED & 2 ORS
4. AN ORDER deeming the Appellants’ Notice of Appeal as properly filed and served.
AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
The Application is supported by a five (5) paragraphs affidavit deposed to by Praise Popoola; Exhibit A1 (which is the judgment of the Court below the National industrial Court in suit No NICN/LA/192/2011 delivered on the 1st of December 2014; Exhibit A2 which is a Ruling of the National Industrial Court in suit No. NICN/ABJ/280M/2014 delivered on the 23rd of May, 2017; Exhibit A3 which is Notice of Appeal filed on the 19th of October, 2017.
There is written address in support of the Notice of motion which is annexed to the application and which was filed on the 19th of October, 2017.
At the hearing of the Application on the 15th day of February, 2021, learned counsel for the Appellants/Applicants had applied that this Honourable Court strikes out the names of the 5th Respondent Captain Idris Ichalla Wada, which names was struck out accordingly.
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The 1st, 2rd, 3rd, and 4th Respondents filed a counter affidavit in response to the Application on the 12th February, 2021, of four (4) paragraphs deposed to by Mba Nnamdi Ugbor, legal practitioner in the Law firm of Alpha – Harris solicitors, counsel to the 1st, 2nd, 3rd and 4th Respondents herein.
The counter affidavit is annexed with Exhibit A – Statement of Share Capital and Return of Allotment of shares – Form CAC 2 in respect of the 1st Appellant/Applicant, from the Corporate Affairs Commission Abuja; Exhibit B1 & 2 – Particulars of Directors or any change therein in respect of GROBAL FREET INDUSTRIES LIMITED from the Corporate Affairs Commission; Exhibit C — further counter affidavit in opposition to Motion on Notice filed on the 21st of April, 2015, which was filed on the 14th of October, 2015; Exhibit D which is a Creditor’s petition at the Federal High Court of Nigeria, (Bankruptcy Division), Lagos Judicial Division filed on the 22nd of August, 2017, and Exhibit E — Motion on notice in suit No NICN/LA/192/2011 filed on the 23rd of December, 2014. The 1st, 2nd, 3rd and 4th Respondents filed their written addresses on the 12th of February, 2021.
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The Appellants’ had filed a further affidavit to the 1st – 4th Respondents counter affidavit with leave of Court, on the 15th of February, 2021. They had also filed a reply on points of law to the 1st – 4th Respondents written address filed on the 12th of February, 2021 on the 15th of February, 2021.
On the 15th of February, 2021, learned counsel for both parties adopted their respective written addresses.
The gravamen of the Appellants’ application is reflected in paragraphs ii, iii, iv, v, vi, vii, viii, ix, and x of the affidavit in support of the motion; where he gave reasons for the lateness and/or delay in bringing this application.
In reaction to the aforementioned affidavit, the 1st, 2nd, 3rd, and 4th Respondents in paragraph 4 of their counter affidavit alludes to the fact that the Applicants filed this application after a very long time, and after the Respondents started post judgment proceedings. This fact was further elucidated on in paragraph 5 of the counter affidavit.
In Paragraph 5 (a) of the Counter affidavit, the Respondents specifically deposed to the fact “that I verily and reasonably believe ‘the Applicants’
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application is a ploy to waste judicial and judicious time of this Honourable Court, and the Applicants will not diligently prosecute the appeal if this application is granted.”
In paragraph 5 (b) they deposed to the fact “That the grounds of appeal do not raise any substantial issue of law.”
But a cursory look at the grounds of appeal, it seems to me that grounds 3, 4 and 5 essentially has to do with jurisdiction which is a substantial issue of law and indeed a threshold issue.
Pertinent to note that, it is in the discretionary power of the Court to grant an application such as this i.e, leave to appeal a decision. But that discretion must not only be exercised judicially but judiciously.
In considering applications such as the present one, the Court, in exercising its discretion, must bear in mind the following two conditions circumscribed by the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules, which provisions must be satisfied conjunctively and not disjunctively – WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982. All NLR (part 1) – YONWUREN v. MONDERN SIGNS LTD (1985)1 N.W.L.R. (part 2) 244; UNIVERSITY OF LAGOS V. AIGORO. (1985)1 NWLR. (part 1)143.
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The second condition is the length of time that has elapsed between the date of the judgment sought to be appealed against, and the filing of the application. This constitutes a major considerating material factor in deciding whether or not to extend time as prayed.
Notwithstanding the length of time, time may still be extended if the delay is sufficiently explained —OJORA V. BAKARE (1976)2 SC.39.
It can also be considered if the failure to appeal timeously was due to the true and genuine mistake or error of judgment of counsel.
Where it appears to the Court that the delay was occasioned by the genuine mistake of counsel, it will be up to the Respondent to show in what respect he would be prejudiced if the indulgence sought, is granted.
It is one thing to seek leave to appeal. It is another thing to establish arguable grounds of appeal. Thus, an applicant for an order for extension of the time within which to appeal, must show that he has arguable grounds of appeal, and not a frivolous appeal. Howbeit, he is not expected to show that the appeal will succeed. He nevertheless is expected to
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exhibit good grounds showing reasonable prospects of success in the appeal.
-HOLMAN BROS (MR) LTD V. KIGO (NIG) LTD (1980) 8-11 SC. 43
In determining applications for extension of time within which to appeal, each case must be decided on its own peculiar facts and circumstances .
The provisions of Order 6 Rule 9 of the Court of Appeal Rules 2016 mandates the setting forth of “good and substantial reasons” for failure to appeal within the time prescribed by the Rules.
Grounds of Appeal must show prima facie good cause why the appeal should be heard. SeeIKENTA BEST (NIG) LTD V A.G RIVERS STATE (2008) LPELR – 14 76 (SC) In EBUN INDUSTRIES LTD V. S COA (NIG) PLC. (2011)LPELR – 4069 (CA) this Honourable Court per Pemu, JCA observed, in considering a similar application, that Order 7 Rule (2) of the Court of Appeal Rules 2007 (now Order 6 Rules 9 of the Court of Appeal Rules 2016 states.
“Every application for an 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
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cause why the appeal should be heard” (underlined for emphasis). The Provisions in that Rule is mandatory, “SHALL” “MUST” are peremptory expressions. See EZEADUKWA V. MANWKA (1997)8 NWLR PT 578, 635 at 656. OGWUCHE & ORS V. MBA & ORS (1994) 4 NWLR at 336. 75. “good and substantial grounds” might have (in the intendment of the draughtsman) not included reasonable grounds or excuses, but good and substantial grounds, for example where it touches on jurisdiction” – PEMU JCA.
A cursory look at the Grounds of Appeal, indicates that they substantially smack of jurisdictional issues. That in itself shows that the Appeal is one that should be entertained.
From records, judgment was given in the suit, the subject matter of this application on the 16th of September, 2013.
Paragraph 12 of the grounds upon which the application was brought – had this to say “the inability of the Appellants/Applicants to Appeal within the time allowed was not borne out of tardiness or disrespect for this Honourable Court but on account of their resolve to exhaust the alternative procedural remedy of applying to the lower Court to set aside its Judgment on grounds of being a nullity; which was however refused by the Court.
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This in my view constitutes good and substantial reasons adduced by the Applicants.
The Respondents have vehemently argued that the excuse for the lateness in bringing this application could have been brought in 2013, after the judgment was delivered; or in 2014 after the garnishee proceedings was concluded.
That the Applicants’ application is a ploy to waste judicial and judicious time of this Honourable Court, and that the Applicants will not diligently prosecute this appeal if this application is granted.
But this Court would not also shut its eyes to the need to grant an application such as this if the circumstances permit. It would be impervious to judicial discretion if in the face of the grounds of Appeal fielded in this matter, which shows issues of jurisdiction, the Court refuses this application. I am of the view that consequently, the grounds of appeal raise substantial issues of law and I so hold.
The application is hereby granted as prayed.
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I hereby make the following orders: The Appellants/Applicants are hereby granted extention of time up to and inclusive of today to seek lease to appeal against the judgment of the National Industrial Court of Nigeria sitting at Abuja (Coram: the Honourable Justice M. N. Esowe) delivered on 16th September, 2013 in suit No NICN/LA/192/2011 between MR. HENRY IWELUMO & 3 ORS V. NICON AIRWAYS LIMITED & 2ORS.
2. Leave is hereby granted the Appellants/Applicants to appeal against the judgment of the National Industrial Court of Nigeria sitting at Abuja (Coram: the Honourable Justice M.N Esowe) delivered on 16th September, 2013 in suit No. NICN/LA/192/2011 between MR HENRY IWELUMO & 3 ORS V. NICON AIRWAYS LIMITED & 2 ORS on grounds other than grounds of law.
3. The Appellants/Applicants are hereby given 14 days from today 18th February, 2021 to appeal the judgment of the National Industrial Court of Nigeria sitting at Abuja (Coram: The Honourable Justice M.N. Esowe) delivered on 16th September 2013 in suit No. NICN/LA192/2011 between MR. HENRY IWELUMO & 3 ORS V. NICON AIRWAYS LIMITED & 2 ORS.
And the Notice of Appeal shall be deemed properly filed and served at the expiration of the 14 days granted. N50, 000 costs in favour of the Respondents.
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HAMMA AKAWU BARKA, J.C.A.: The Ruling of my learned brother RITA N. PEMU JCA, was made available to me in draft before now. Having read the brief of argument, I wholly agree with the reasoning and conclusions reached and also abide on all orders made including that made on costs.
EBIOWEI TOBI, J.C.A.: I agree.
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Appearances:
ZENMA, ESQ., IBEGBUMAN, ESQ. AND PHILIPA IGINE For Appellant(s)
D.A. AWOSIKE, SAN, N.U. MBA, ESQ. AND TSAMIYA S.L. (MISS) ESQ. For Respondent(s)
