TARABA STATE LOCAL GOVT SERVICE COMMISSION & ANOR v. SHINKOM & ORS (2022)

TARABA STATE LOCAL GOVT SERVICE COMMISSION & ANOR v. SHINKOM & ORS

(2022)LCN/16429(CA)

In The Court of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, June 24, 2022

CA/YL/36M/2022(R)

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

1. TARABA STATE LOCAL GOVERNMENT SERVICE COMMISSION 2. ATTORNEY GENERAL OF TARABA STATE APPELANT(S)

And

1. MR. RIMAMYAERE APUMUKONG SHINKOM 2. PUBLIC COMPLAINTS COMMISSION 3. TARABA STATE 4. MR. TIMOTHY TIKON 5. MR. JERRY OLIVER RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL FROM THE DECISION OF THE NATIONAL INDUSTRIAL COURT TO THE COURT OF APPEAL IS AS OF RIGHT

Section 243 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) cited and relied on by the Applicants in bringing the application in respect of appeals from the NIC to this Court provides as follows:
“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”.
The above provision must be read with other provisions that spelt out the conditions for appeals from NIC.
The implication of the said provisions is that appeals shall lie from the National Industrial Court to this Court as of right if it relates to matters of Fundamental Human Rights (as provided under Chapter IV of the 1999 Constitution (as amended) and Section 243 (2) of the Constitution. The decisions of the trial Court are appealable to this Court as of right in Criminal matters, Section 243 C (5) and (6) and Fundamental Right cases as provided under Section 243 (2) but, the leave of this Court is required in all other civil matters in which the trial Court can exercise its jurisdiction. Sections 240, 242 (1), 243 (4), 254 C (5) and (6), 243 (2) and 243 (1) must be read together. Appeals from the National Industrial Court to this Court in respect of Fundamental Rights is as of right but, the leave of this Court is required in respect of other matters as sought in the present application. See, BOGORO LOCAL GOVERNMENT COUNCIL VS. KYAUTA & ORS. (2017) LPELR–443296 (CA) PP. 11-14, PARAS. D–B; BABALOLA VS. AG OF THE FEDERATION & ANOR. (2018) LPELR-43808 (CA) PP. 19–22, PARAS F-A and SKYE BANK PLC. VS. VICTOR ANAEMEM IWU (2017) (supra) PP. 43–54, PARAS. F–D. PER UWA, J.C.A.

THE POSITION OF LAW WHERE A PARTY IS CHALLENGING THE VALIDITY OF THE ORDER OF COURT

In respect of the alleged contempt of the order of the trial Court, it is the law that where a party is challenging the validity of the order and intends to appeal against such order, contempt proceedings ought not to be proceeded against such party for contempt unless and until the issue of its legality is settled one way or the other. See, AG OF EDO STATE & ANOR. VS. CHURCHGATE INDUSTRIES LTD. & ANOR. (2016) (SUPRA) at PAGES 19 -20, PARAS. E–B. and GROUP DANONE VS. VOLTIC (NIG.) LTD. (2008) 7 NWLR (PT.1087) PG. 637 at 660, PARAS. E–G, 661 PARAS. B–H relied upon in CHURCHGATE INDUSTRIES LTD. (supra). PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgement): The application was brought pursuant to Order 6 Rules 1 & 2 of the Court of Appeal Rules, 2021, Section 243 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) hereafter referred to as the Constitution and the Inherent Jurisdiction of this Court. The Applicant prayed for the following reliefs:
1. “AN ORDER OF COURT granting the Appellants/Applicants leave to appeal against the decision/Order of the National Industrial Court sitting in Yola, made on the 24th February, 2022 in Suit No: NICN/YL/02/2021 BETWEEN MR. RIMAMYAERE APUMUKONG SHINKOM VS. TARABA STATE LOCAL GOVERNMENT SERVICE COMMISSION & 4 ORS.
2. AND for such Orders or any further Orders the Honourable Court may deem fit to grant in the circumstances.

The grounds upon which the application was brought are as follows:
i. “The lower Court granted an Order(s) that was/were not sought by the 1st Respondent.
ii. The lower Court granted an order to reverse an action that had been completed.
iii. That the decision sought to be appealed against is an interlocutory decision of the National Industrial Court not appealable as of right.”

The following documents were exhibited to the application:
1. Certified True Copy of the enrolled order of the lower Court dated the 24th day of February 2022, Exhibit “A”.
2. A Copy of the Proposed Notice of Appeal, Exhibit “B”.

In moving the application, the learned counsel to the Applicants D. D. Shintema, Senior State Counsel Taraba State Ministry of Justice relied on his affidavit of thirteen (13) paragraphs with its annexures, Exhibits “A” and “B”, and a written address.

The background facts in the written address, in support of the application it was stated that the 1st Respondent became apprehensive that the 1st Applicant would act on a report of the 2nd Respondent in Case No: PCC/TR/48/2013 against his interest. In order to forestall the 1st Applicant from so acting on the report, he instituted an action before the National Industrial Court (NIC), sitting in Yola (lower Court).

On the other hand, the 2nd Applicant was said to have chaired an Independent Committee which investigated the dispute between the 3rd (sic, should be 1st Respondent), and 4th (sic, should be 3rd Respondent) Respondents leading to the issuance of Exhibits “Z” and “ZZ”. The 1st Respondent was alleged to have been aggrieved by the issuance and execution of Exhibits “Z” and “ZZ” and his subsequent removal from office as the Director of Finance, Ussa Local Government Area and brought an application seeking the nullification of Exhibits “Z” and “ZZ” and restraining orders against the 1st Applicant, from restraining him as Director of Finance, Ussa Local Government Area. The Court refused to grant an injunction against the 1st Applicant but rather suo motu granted a restorative order that was not sought by the 3rd Respondent. The Applicants formulated a sole issue for the determination of the application thus:
“Whether this Honourable Court can grant leave to the Appellants/Applicants to appeal the interlocutory decision/ruling of the National Industrial Court, Yola made on 24th February, 2022.”

It was submitted that by the provisions of Section 243 (3) of the 1999 Constitution (as amended), appeals lie from the National Industrial Court (NIC) to this Court as of right as it relates to matters of Fundamental Human Rights as enshrined under Chapter IV of the Constitution, reliance was placed on SKYE BANK PLC. VS. VICTOR ANAEMEM IWU-SC /885/2014 (2017) LPELR–42595. We were urged to grant leave to the Applicants to appeal the decision of the National Industrial Court having satisfied the requirement of the leave sought. See, paragraph 10(e) of the Affidavit in support of the Application. It was submitted that the complaint in the proposed Notice of Appeal, Exhibit “B” is the wrong exercise of discretion by the lower Court in granting a relief that was not sought and making a restorative order reversing a completed act. It was concluded that there is an arguable Ground of Appeal to persuade the grant of leave by this Court.

In response and in opposition, the Learned Counsel to the 1st Respondent I. N. Kajere, Esq. filed a nine (9) paragraph counter affidavit on 14/3/22 with two annexures, Exhibit “X” a copy of an application for committal warrant: Form 48 to be served on the Chairman of the 1st Applicant and Exhibit “Y” a copy of an application for committal warrant: Form 49 to be issued and served on the same Chairman of the 1st Applicant. The learned counsel also relied on his written address as his argument in support of his opposition in urging us to dismiss the application with costs.

The learned counsel to the 1st Respondent formulated a sole issue for determination thus:
“Whether the Appellant/Applicant has made out a meritorious case for the grant of leave to appeal against the interlocutory ruling of the National Industrial Court, Yola, which is in issue.”

It was submitted that all the Orders granted by the trial Court in its ruling are on all fours with the prayers of the 1st Respondent and that the Applicants’ grouse seems to be the wordings or couching of the Orders by the trial Court Judge which may not be in the exact words of the 1st Respondent’s application. On the other hand, it was argued that the application before the trial Court had an omnibus ground seeking for consequential reliefs or incidental orders, which flow naturally from the other reliefs and that a Court is entitled to make orders that are consequent upon a valid judgment or ruling with a view to give effect or add value to any order of the Court. See, RT. HON. ROTIMI CHIBUIKE AMAECHI VS. INEC & 2 ORS. (2008) LPELR–446 (SC) and BARRISTER ORIKE V. JEV & ORS VS. IYOTOM & ORS. (2015) NWLR (PT. 1483) PAGE 484 at 520.

It was submitted that the trial Court was right to have made the orders and that every order of the Court made with or without jurisdiction remains valid until it is set aside. Further, that it is not up to the litigant affected by the order to decide whether the order was valid or not, or whether the litigant would obey it or not. See, MOBIL OIL (NIG.) LTD. VS. ASSAIL (1995) 8 NWLR (PT. 412) P. 129 at 143.

It was made out that the Applicants are in contempt of Court by failing to obey the ruling/order of the trial Court as they failed to vacate the office which the lower Court ordered to be vacated by them, reference was made to Exhibits “X” and “Y”. Further, that a party in disobedience of Court order cannot be heard. See, FIRST AFRICAN TRUST BANK LTD. (F.A.T.B.) VS. EZEGBU (1992) 9 NWLR (PT. 264) P. 132 at PAGES 154–155, PARAS. G-A; ODOGWU VS. ODOGWU (1992) 2 NWLR (PT. 225) P. 539 and MOBIL OIL (NIG.) LTD. VS. ASSAIL (SUPRA) at PAGES 143–144, PARAS. G-C. This was also the position of the Apex Court in the earlier decided case of ODOGWU VS. ODOGWU (1992) 2 NWLR (PT. 225) P. 539 and MOBIL OIL (NIG) LTD VS. ASSAIL (SUPRA) PAGES 143–144 PARAS. G-C in emphasizing its position of not hearing a party who is in disobedience of Court’s order.

It was submitted that the rules embodied in the law of contempt of Court are intended to uphold and ensure the effective administration of justice which vindicates the public interest in due administration of justice and for the Court to protect its sanctity. It was concluded that the Applicants filed the application to avoid executing the order of the lower Court and to delay the matter. It was argued that the ruling was made with no prejudice to any of the parties but made in the interest of justice.

In reply on points of law, it was submitted on behalf of the Applicants that there are exceptions to the general rule that the order of Court must be obeyed first before seeking leave to appeal, this is when the proposed Appellant has taken steps to appeal against the order.

The 2nd-4th Respondents were served but, absent, did not file any process and had nothing to urge this Court.

I would utilize the sole issue formulated by the Applicants in the determination of the application. The Applicants’ complaint is against the ruling of the lower Court delivered on the 24th day of February, 2022. The enrolled order is Exhibit “A” attached to the motion papers. In the supporting affidavit to the application, paragraphs 10 (b)–f, 12 and 13 it was deposed on behalf of the Applicants as follows:
10 b. “That the Honourable Trial Court granted reliefs (restorative orders) that were not sought for by the 1st Respondent:
c. That serious issue was raised before the lower Court which was not duly considered by the lower Court in the said ruling.
d. That the Appellants/Applicants have prepared an appeal to this Court against the said decision/ruling. A copy of the proposed Notice of Appeal has been shown to me, and is hereto attached and marked as Exhibit “B”.
e. That the appeal complains, among other things, of pronouncements by the Court on substantial issues at an interlocutory stage and granting an injunction after the happening of an event sought to be restrained as well as the power of the Court to grant reliefs that were not sought by a party.
f. That the Appellants/Applicants require the leave of this Honourable Court to bring this appeal against the decision/ruling of the National Industrial Court which does not relate to Fundamental rights as enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
11. That the Respondents would not be prejudiced by the grant of this application.
12. That the Applicants would be highly prejudiced if this application is refused.”

In response to the above depositions, it was deposed on behalf of the 1st Respondent in his Counter Affidavit, paragraphs 6 (a)–(f) and 7–8 as follows:
6 a. “The reliefs granted by the trial Court in its ruling were pursuant to the prayers of the Respondent as Applicant in its application before the trial Court.
b. In its ruling, the trial Court duly considered and resolved all the issues raised by parties before it.
c. The proposed Notice of Appeal of the Applicants does not raise any substantial issue for the attention of this Honourable Court.
d. The Applicants are in disobedience of the order of the trial Court as they have failed, refused to obey the order of the lower Court.
e. The 1st Respondent has commenced contempt proceedings against the 1st Applicant for its disobedience of the order of the trial Court. Forms 48 and 49 served on the 1st Applicant are hereby attached and marked as exhibits x and y respectively.
f. This application is meant as a delay tactic to divert the attention of the trial Court from the real issue and to perpetuate the illegal holding of office by the 3rd Respondent.
7. The 1st Respondent will be severely prejudiced if this application is granted.
8. That the interest of justice will best be served when this application is refused.”

The Applicants have alleged that the lower Court granted reliefs not sought by the 1st Respondent and that serious issues were raised before the lower Court which were not considered in the ruling also, that the lower Court pronounced upon substantial issues at an interlocutory stage amongst other complaints, reason for the application seeking the leave of Court to appeal.

The Learned Counsel to the 1st Respondent opposed the grant of the application alleging amongst other things that the proposed Notice of Appeal, Exhibit “B” attached to the motion papers did not raise any substantial issue to deserve the attention of this Court, the law did not make a “substantial issue” a condition that must exist to entitle a disgruntled litigant to appeal against a ruling or judgment of the NIC, no matter how minute an issue may be, any decision of the Court is appealable but, in the present case it is with the leave of this Court, which is what is sought here, not whether the proposed appeal would succeed or not. A single ground is enough to sustain the grant and pursuit of an appeal.

The issues to be determined need not be enormous, as I stated earlier in this ruling a sole issue is enough to sustain an appeal, no matter how minor it may seem. The Applicants desire that it be looked into. The 1st Respondent alleged that the Applicants are in disobedience of the order of the trial Court and that contempt proceedings have been commenced against the Applicants. The law is that a party that is not satisfied with the ruling/order of a lower Court can appeal against same and an intending Appellant against an interlocutory decision/order shall do so within fourteen (14) days. In the present case, the ruling sought to be appealed against was delivered on the 24th February, 2022. The application for leave to appeal was filed on 8th March, 2022 within the fourteen (14) days prescribed by law and allowed by the Rules of this Court in respect of an interlocutory decision, as provided in Section 24 (1), (2) (a) and (4) of the Court of Appeal Act. See, GEORGE & ANOR. VS. HAJAIG & ANOR. (2017) LPELR–46234 (CA) P. 9, PARAS. B-C, NJOKU & ORS. VS. IHEANATU & ORS. (2008) LPELR–3871 (CA) PP. 2-3, PARAS. F–B and BAUCHI STATE HOUSE OF ASSEMBLY & ORS VS. GUYABA (2017) LPELR-43295 (CA) P. 15, PARAS. D–E.

In respect of the alleged contempt of the order of the trial Court, it is the law that where a party is challenging the validity of the order and intends to appeal against such order, contempt proceedings ought not to be proceeded against such party for contempt unless and until the issue of its legality is settled one way or the other. See, AG OF EDO STATE & ANOR. VS. CHURCHGATE INDUSTRIES LTD. & ANOR. (2016) (SUPRA) at PAGES 19 -20, PARAS. E–B. and GROUP DANONE VS. VOLTIC (NIG.) LTD. (2008) 7 NWLR (PT.1087) PG. 637 at 660, PARAS. E–G, 661 PARAS. B–H relied upon in CHURCHGATE INDUSTRIES LTD. (supra). Therefore, the application for contempt proceedings against the Chairman of the 1st Applicant, the Employer of the 1st Respondent as shown in Exhibits “X” and “Y” attached to the Counter Affidavit of the 1st Respondent, referred to in paragraph 6(e) of the Counter-Affidavit is erroneous.

The Learned Counsel to the 1st Respondent has also made out that the present application was brought to delay and divert the attention of the trial Court from the real issue and allegedly perpetuating the holding of the 3rd Respondent’s office. It is noteworthy that the Applicants brought the application for leave within time, the fourteen (14) days prescribed by law. It is therefore erroneous for the learned Counsel to the 1st Respondent to have alleged delay tactics on the part of the Applicants.

The Learned Counsel to the 1st Respondent also made out that the 1st Respondent would be severely prejudiced if this application is granted but, failed to show in what way the prejudice would occur. Also, that the interest of justice would be best served if the application is refused. On the contrary, the Applicants’ interest for this Court to examine the ruling/orders of the trial Court would be prejudiced and stalled if the application is not granted, the interest of justice would be better served if the application is granted, thus giving the Applicants an opportunity to have their grievances looked into.

I have examined the Applicants’ proposed Notice of Appeal, the complaints are substantial and the Applicants’ ought to be given an opportunity to have the issues raised therein looked into. The Applicants’ having fulfilled the necessary requirements timeously for the grant of leave to appeal, they are entitled to the reliefs sought. I hereby grant the orders as prayed in the motion papers in the following terms:
1. The Applicants are granted leave to appeal against the decision/order of the National Industrial Court sitting in Yola made on the 24th February, 2022 in Suit No. NICN/YL/02/2021 BETWEEN MR. RIMAMYAERE APUMUKONG SHINKOM VS. TARABA STATE LOCAL GOVERNMENT SERVICE COMMISSION & 4 ORS.
2. The Applicants are to file their Notice of Appeal within fourteen (14) days from today in line with Exhibit “B” the proposed Notice of Appeal attached to the Motion papers.

I award N100,000.00 (One Hundred Thousand Naira) costs to the Applicants against the 1st Respondent.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft, the lead ruling of my learned brother, Chidi Nwaoma Uwa, JCA, where he granted the application of the Appellants/Applicants.

I am in agreement with the reasoning and conclusion therein, and adopt the ruling as mine. I have nothing extra to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading the draft copy of the lead ruling just delivered by my learned brother CHIDI NWAOMA UWA, JCA. I am in agreement with the decision of my learned brother that the application should be granted. It is hereby granted by me. I also abide by the Order as to costs.