TIKON v. SHINKOM & ORS (2022)

TIKON v. SHINKOM & ORS

(2022)LCN/16486(CA)

In The Court of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, June 24, 2022

CA/YL/38M/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

MR. IDRIS TIMOTHY TIKON APPELANT(S)

And

1. MR. RIMAMYAERE APUMUKONG SHINKOM 2. TARABA STATE LOCAL GOVERNMENT SERVICE COMMISSION 3. PUBLIC COMPLAINTS COMMISSION TARABA STATE 4. MR. JERRY OLIVER 5. ATTORNEY GENERAL OF TARABA STATE RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL FROM THE NATIONAL INDUSTRIAL COURT TO THE COYRT OF APPEAL IN RESPECT OF FUNDAMNETAL HUMAN RIGHT IS AS OF RIGHT

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 VI of the 1999 Constitution (as amended) under Section 243 (2) of the Constitution. The decisions of the trial Court are appealable to this Court as of right in Criminal matters, Section 254 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. Section 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–43296 (CA) PP. 11-14, PARAS. D–B; BABALOLA VS. AG 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 TIME OF FILING AN APPEAL BEFORE THE COURT OF APPEAL

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 the 9th 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. PER UWA, J.C.A.

THE POSITION OF LAW WHERE A PARTY IS CHALLENGING THE VALIDITY OF AN 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 of that order 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 Lead Ruling): 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 Appellant/Applicant 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 appeal (sic) 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 Applicant Sunday Stephen, Esq. relied on his affidavit of fourteen (14) paragraphs with its annexures, Exhibits “A” and “B”, and a written address and his further and better affidavit filed on 24/3/22 in urging us to grant the application.

The background facts in the written address, in support of the application it was stated that the 1st Respondent became apprehensive that the 2nd Respondent would act on a report of the 3rd Respondent in Case No: PCC/TR/48/2013 against his interest. In order to forestall the 2nd Respondent 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 5th Respondent was said to have chaired an Independent Committee which investigated the dispute between the Applicant and the 1st Respondent 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”, the 1st Respondent then approached the lower Court with an application seeking to set aside Exhibits “Z” and “ZZ” on grounds that same is illegal, null, void and of no effect and sought an order restraining the 2nd Respondent from restraining him as the Director of Finance, Usaa Local Government Area. The Court refused to grant an injunction against the 2nd Respondent but, was alleged to have suo motu granted a restorative order that was not sought by the 1st Respondent.

The Applicant identified a sole issue for determination of the application thus:
“Whether this Honourable Court can grant leave to the Appellant/Applicant 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. 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 2nd Respondent and Exhibit “Y” a copy of an application for committal warrant: Form 49 to be issued and served on the same Chairman of the 2nd Respondent. 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. In the alternative, it was submitted that there was 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 ORKER JEV & ANOR VS. IYORTYOM & 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. ASSAN (1995) 8 NWLR (PT. 412) P. 129 at 143.

It was made out that the Applicant is in contempt of Court by failing to obey the ruling/order of the trial Court as he failed to vacate the office which the lower Court ordered to be vacated by him, 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. ASSAN (SUPRA) at PAGES 143–144, PARAS. G-C.

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 Applicant 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 response on points of law, the Applicant filed a Further and Better Affidavit on 24/3/22 of sixteen (16) paragraphs with a written address in support. In the written address, it was submitted that an appeal is a Constitutional Right of any litigant who is not satisfied with the judgment/order of a lower Court and that a litigant who wants to appeal against an interlocutory order shall do so within fourteen (14) days. See, SECTION 243 (3) OF THE 1999 CONSTITUTION AND MOHAMMED & ANOR. VS. OLAWUNMI & ORS. (1990) LPELR–1893 (SC). It was submitted that following the ruling of the lower Court delivered on 24th February, 2022 the Applicant filed his motion within fourteen (14) days allowed by the law and the Rules of the Court. It was submitted that where a party is challenging the validity of the order by appealing, contempt proceedings should not proceed against him. See, AG OF EDO STATE & ANOR. VS. CHURCHGATE INDUSTRIES LTD. & ANOR. (2016) LPELR–41439 (CA). Further, that the application for contempt proceedings against the chairman of the 2nd Respondent who is the employee of the Applicant is premature and that the judicial authorities relied upon are not applicable in the present case.

In the alternative but, not conceding to the fact that the Applicant is in disobedience of the Court order and cannot be heard as contended by the 1st Respondent, it was submitted that the instant case is an exception to the rule of contempt. See, GLOBESTAR ENG. CO. (NIG.) LTD. VS. MALLE HOLDINGS LTD. (1999) LPELR–6637 (CA). On the contention by the 1st Respondent that the proposed Notice of Appeal does not raise a substantial issue, it was submitted that a sole ground that raises a substantial issue is sufficient to sustain an appeal. See, AG OF EDO STATE & ANOR. VS. CHURCHGATE INDUSTRIES LTD. & ANOR. (2016) LPELR–41439 (CA). It was concluded that the Applicant fulfilled all the necessary requirements of the law to tilt the discretion of the Court in his favour, we were urged to discountenance the 1st Respondent’s Counter Affidavit and grant the application.

The learned counsel to the 2nd and 5th Respondents D. D. Shintema, Senior State Counsel, Taraba State Ministry of Justice did not file any process and had nothing to urge the Court.

The 3rd and 4th Respondents who were served did not also file any process.

I would utilize the sole issue formulated by the Applicant in the determination of the application. The Applicant’s 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 11 (b)–f, 12 and 13 it was deposed on behalf of the Applicant as follows:
11 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 Appellant/Applicant has 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 Appellant/Applicant required 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 Human Rights as enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
12. That the Respondents would not be prejudiced by the grant of this Application.
13. That the applicant 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 Applicant does not raise any substantial issue for the attention of this Honourable Court.
d. The applicant is in disobedience to the order of the trial Court as he has failed, refused or neglected to obey the order of the lower Court.
e. The 1st Respondent has commenced contempt proceedings against the 2nd Respondent for disobedience of the order of the trial Court. Forms 48 and 49 served on the 2nd Respondent is 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 Appellant/Applicant.
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 Applicant has 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. Section 243 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) cited and relied on by the Applicant 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 NICN.
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 VI of the 1999 Constitution (as amended) under Section 243 (2) of the Constitution. The decisions of the trial Court are appealable to this Court as of right in Criminal matters, Section 254 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. Section 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–43296 (CA) PP. 11-14, PARAS. D–B; BABALOLA VS. AG 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.

The 1st Respondent in his counter-affidavit deposed in paragraphs 6 (c) of his counter-affidavit that the proposed Notice of Appeal of the Applicant did not raise any substantial issue for the attention of this Court. The Proposed Notice of Appeal (Exhibit “B”) contains the grievances of the Applicant against the ruling of the trial Court. I have examined the proposed Notice of Appeal, contrary to the depositions on behalf of the 1st Respondent in his Counter Affidavit, the Applicant has made allegations in respect of the ruling of the trial Court which ought to be looked into by this Court, success or failure at this stage is not important and cannot be determined until the Proposed Appeal is heard. The issues to be determined need not be enormous, as I stated earlier in this ruling a sole issue is enough to sustain the appeal, no matter how minor it may seem. The Applicant desires that it be looked into. The 1st Respondent alleged that the Applicant is in disobedience of the order of the trial Court and that contempt proceedings have been commenced against the Applicant. 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 the 9th 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 of that order 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 2nd Respondent, the Employer of the Applicant 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.

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 Applicant’s office. It is noteworthy that the Applicant 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 Applicant.

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 Appellant’s 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 Applicant an opportunity to have his grievances looked into.

I have examined the Applicant’s proposed Notice of Appeal, the complaints are substantial and the Applicant ought to be given an opportunity to have the issues raised therein looked into. The Applicant having fulfilled the necessary requirement timeously for the grant of leave to appeal, he is entitled to the reliefs sought. I hereby grant the orders as prayed in the motion papers in the following terms:
1. The Applicant is 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 Applicant is to file his 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 Applicant 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 Appellant/Applicant.

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.: My learned brother CHIDI NWAOMA UWA, JCA afforded me the privilege of reading the draft copy of the lead ruling just delivered. I agree with the decision of my learned brother granting the application. I have nothing further to add.