UBA PLC v. AYANGBADE
(2021)LCN/15689(CA)
In the Court of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/YL/131M/2020(R)
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
YUSUF MOSHOOD AYANGBADE RESPONDENT(S)
RATIO
WHETHER OR THE COURT CAN MAKE ORDERS IN VAIN
On this point, the Supreme Court in the case of Efet Vs. INEC (2011) LPELR (8109) SC Per Ibrahim Tanko Muhammad J.S.C. (now CJN) stated:
“To consider the merit of this appeal is like beating a dead horse. It serves no useful purpose. It is an exercise in futility.
Courts of law dissipate energy on live issues. Courts of law for long have left academic issues to the academia. They rather concentrate on live issues.
I find the preliminary objection raised by the Respondents in this Appeal very sound and sustainable. I sustain them. I have no reason to go into the merit of the appeal as Courts do not make orders in vain. See Makinde V. Akinwale (1995) 6 NWLR (Pt. 399) 5; N.N.S.C. Ltd V. Sabana (1988) 2 NWLR (Pt. 74) 23. I accordingly strike out the appeal. PER TUKUR, J.C.A.
THE PRACTICE OF THE COURT WHEN AN ACTION IS STRUCK OUT
Similarly, in the case of In Re: Apeh (2017) LPELR 42035 (SC) the Appex Court Per Ibrahim Tanko Muhammad J.S.C. (now CJN) said:
“As the said motion was not dismissed by this Court, I find myself with the submission of learned counsel for the applicants in his reply brief that the Applicants are at liberty to bring the Application over and over again. Unfortunately, the law has not set out any time limit for presentation of a process ordinarily struck out. For the purpose of a reminder, I think I should re-state the well settled principle of the law and permanent feature of the practice of the Courts that when action is struck out, it is still alive and can be resuscitated by the Plaintiff/Applicant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus, where a Suit/Case/Application/Appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally where a matter is dismissed on ground of abuse of Court process it is subject to be dismissed and it cannot be relisted.
Where a matter is withdrawn with the consent of parties, it is to be dismissed and it cannot be relisted. See Jimoh V. Starco Nig. Ltd (1998) 7 NWLR (Pt. 558) 523; Harriman V. Harriman (1989) 5 NWLR (Pt. 119) 6; Jadesimi V. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 276. PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgement): The Applicant, United Bank for Africa Plc by a motion on Notice filed on 30th November, 2020 seeks the following Reliefs:
(i) AN ORDER of the Hon. Court enlarging the time within which to seek leave to appeal against the decision of the National Industrial Court sitting in Yola in Suit No. NICN/YL/03/2016 between Yusuf Moshood Ayangbade Vs. United Bank for Africa Plc delivered on the 06/07/2018.
(ii) LEAVE of the Hon. Court for the Applicant to appeal against the decision of the National Industrial Court sitting in Yola in Suit No. NICN/YL/03/2016 between Yusuf Moshood Ayangbade Vs. United Bank for Africa Plc delivered on the 06/07/2018.
(iii) AN ORDER of the Hon. Court enlarging time for the Applicant within which to appeal out of time against the decision of the National Industrial Court sitting in Yola, in Suit No. NICN/YL/03/2016 between Yusuf Moshood Ayangbade Vs. United bank for Africa Plc delivered on the 06/07/2018.
(iv) Any further or better Order(s) as this Hon. Court may deem fit to make in the surrounding circumstances of this application.
The grounds upon which the application rests is given thus:
1. The Respondent filed this suit against the Applicant before the National Industrial Court on the 19/02/2017 for declaration that his suspension and subsequent dismissal by the Applicant is wrongful, illegal, unconstitutional, null and void.
2. At the conclusion of the case judgment was entered against the Applicant on the 06/07/2018.
3. The Applicant being dissatisfied with the said judgment appealed to this Court on the 17/07/2018.
4. After filing the Notice and Grounds of Appeal, Chief L. D. Nzadon drew the attention of Hussaini G. Maidawa (the Counsel who filed the Notice of Appeal) to the decision in the case of Skye Bank Vs. Iwu (2017) LPELR-42595 (SC) to the effect that decision of the National Industrial Court is not appealable as of right except the decision on enforcement of fundamental human rights as enshrined in the Third Alteration of Constitution of Federal Republic of Nigeria 1999 (as amended) particularly Section 243(2) and(3).
5. Based on paragraph 4 above, it was therefore necessary to seek leave of either the trial Court or the Court of Appeal before the Applicant could file an appeal in respect of Suit No. NICN/YL/03/2016 between Yusuf Moshood Ayangbade Vs. United Bank for Africa Plc because it is not a fundamental right enforcement suit.
6. The Applicant then filed a Motion on Notice before the Court of Appeal on 28/02/2019 to strike out the Notice of Appeal in No. CA/YL/13/2019 between United Bank for Africa Plc Vs. Yusuf Moshood Ayangbade which was filed on the 17/07/2018 for being incompetent.
7. The Applicant in the same Motion on Notice of 28/02/2019 also prayed for orders of this Hon. Court to extend time within which to seek leave to appeal to this Hon. Court, leave to appeal, and extension of time within which to appeal from the decision of the trial Court.
8. That this Hon. Court on 01/04/2019 granted the said prayers in the Motion on Notice of 28/02/2019 which enabled the Applicant to properly appeal before this Hon. Court in Appeal No. CA/YL/106/2019 between UBA Plc. Vs. Yusuf Moshood Ayangbade.
9. In the course of the hearing of the Appeal No. CA/YL/106/2019, the Respondent raised a Preliminary Objection urging this Hon. Court to set aside its Order made on 01/04/2019 on the grounds that this Hon. Court lacked jurisdiction to allow the Applicant to appeal in Appeal No. CA/YL/106/2019 having struck out same.
10. This Hon. Court upheld the Preliminary Objection on 27/11/2020 by setting aside the Order made on 01/04/2019 and struck out the Appeal No. CA/YL/106/2019 on the grounds that this Hon. Court lacked jurisdiction to allow the Applicant to appeal in Appeal CA/YL/106/2019 having struck out same.
11. The Applicant is still desirous of prosecuting this appeal before this Hon. Court, but the time within which to seek leave to appeal has elapsed.
12. It is thus necessary for the Applicant to come properly before Hon Court by seeking an Order of this Hon. Court for extension of time within which to seek leave to appeal to this Hon. Court, leave to appeal and extension of time within which to appeal from the decision of the trial Court.
In support of the Application is eighteen paragraph affidavit deposed to by Toluwani J. Ojo Esq. a counsel in the Law firm of Messrs. Nzadon Laori & Associates the law firm engaged by the Applicant. Attached to the Application are four annexures marked as Exhibits “A”, “B”, “C” and “D” respectively.
Exhibit “A” is a Certified True Copy of the judgment of the National Industrial Court in Suit No. NICN/YL/03/2016 between Yusuf Moshood Ayangbade V. United Bank for Africa Plc. delivered on 6th July, 2018 Coram N.C.S. Ogbuanya J.
Exhibit “B” contained the Order of this Court made on 1/4/2019 extending leave to the applicant within which to seek leave to appeal against the decision in Suit No. NICN/YL/03/2016 Between Yusuf Moshood Ayangbade Vs. United Bank for Africa Plc delivered on 6/7/2016, leave to appeal and extension of time within which the Applicant may appeal.
Exhibit “C” is a Certified True Copy of the judgment of this Court in Appeal No. CA/YL/106/2019 between United Bank for Africa Plc v. Yusuf Moshood Ayangbade delivered on 27th November, 2020 Per James Shehu Abiriyi J.C.A. while Exhibit “D” is the proposed Notice of Appeal.
The Respondent in opposing the application filed a six-paragraph counter-affidavit on 5th March, 2021.
The kernel of the argument of learned counsel for the applicant before us is that an application for leave to appeal which is struck out can be relisted. Learned counsel further submitted that Exhibit “C” do not operate as estoppel per rem against the present application because it is not a decision on the merits. Learned counsel further argued that in an application for enlargement of time, the Court will not visit the mistake of counsel on the litigant. Learned counsel cited the following authorities among others in support of his canvass: Ikeakwu & Ors Vs. Nwankpa (19660 NSCC 83, 86 lines 20-34; Geosourse (Nig.) Ltd v. Biragbara & Ors (2000) 13 NWLR (Pt. 1478) 64 at 90 D.G. 99 paras A-F.G. Learned counsel urged us to grant the application.
In his argument opposing the application, learned counsel for the Respondent submitted that an application for extension of time is not granted as a matter of course and that the grounds and affidavit in support of the Application have not shown good and substantial reasons to attract the favour of this Court in respect of the application.
Learned counsel argued that this Court having heard argument of parties in their respective briefs of argument together with the Preliminary Objection filed in Appeal No. CA/YL/106/2019 (Exhibit “C” herein). The Court had become funtus officio and cannot revisit the matter and that the proper option available to the Applicant is to appeal the decision of the Court in Exhibit “C” and not come back to the same Court with an application for leave to appeal. Learned counsel cited the following authorities among others in support of his arguments thus: Itsueli Vs. S.E.C (2016) 6 NWLR (Pt. 1507) page 160 at 161 ratio 1 Sc; Sterling Bank Plc Vs. Johnson (2011) All FWLR (Pt. 600) P. 1378 at 1386 paras E – D (CA); Nigeria Army V. Iyela (2009) All FWLR (Pt. 452) P. 1012 at 1015- Ratio 1 SC; Ayoade V. Spring Bank Plc(2014) 4 NWLR (part 1396) p. 93 at 99 ratio 6 & 7 (CA); Lawal V. A.G. Kwara State (2011) All FWLR (Pt. 590) p. 1308 at 1315 ratio 10 (CA).
Learned counsel for the Respondent finally argued that granting the application will highly prejudice the Respondent and defeat the purpose of Preliminary Objection in our adversary/adjectival system of justice. He urged us to refuse the application by dismissing same.
Adverting to the arguments of learned counsel on both sides, it is clear that the bone of contention in this application is whether an appeal struck out on the ground that the notice of appeal is incompetent can be relisted.
Learned counsel for the applicant argued in the affirmative while learned counsel for the Respondent argued in the negative insisting that the appeal herein was struck out after determination of the appeal on the merits after considering the briefs of argument of the parties.
The Respondent herein was the Respondent in Appeal No. CA/YL/106/2019 United Bank for Africa Plc. Vs. Yusuf Moshood Ayangbadeand it is clear from a reading of the said judgment (which is annexed to the affidavit in support of the application as exhibit “C”) that though the grounds of appeal in the Notice of appeal were set out and the briefs of argument of the parties and issues were identified, the said appeal was in my humble view never determined on the merit. I say this because at page 9 of the said judgment the Court clearly stated:
“A notice of appeal is the foundation of every appeal. Any defect therein will render the entire appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See Uwazurike v. A-G. Fed. (2007) 8 NWLR (Pt. 1035)1.
In the instant case, it is clear that the trinity prayers were granted by the Court through an interlocutory application in an incompetent Appeal No. CA/YL/13/2019. Apart from this, they were granted in the incompetent appeal No. CA/YL/13/2019 struck out by the Court. Having struck out appeal No. CA/YL/13/2019 for being incompetent, that appeal was no longer available to the Court to grant the trinity prayers.
In the circumstance, the order of the Court granting the Appellant extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal is a nullity and can be set aside by the same Court.
The preliminary objection by the Respondent is upheld.”
The Court thereafter at page 10 of the judgment: “The order of the Court in appeal No. CA/YL/13/2019 granting the Appellant extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal is hereby set aside and the Appeal No. CA/YL/106/2019, United Bank for Africa v. Yusuf Moshood Ayangbade struck out.
No costs awarded.”
It is thus clear from the said judgment that the appeal was terminated based solely on the Notice of Preliminary Objection which challenged the notice of appeal upon which the appeal was grounded.
The arguments of learned counsel for the Respondent on the issue do not in my view appreciate the essence and purport of filing a preliminary objection pursuant to Order 10 of the Court of Appeal Rules 2016 which was to object or prevent the hearing of the appeal.
On this point, the Supreme Court in the case of Efet Vs. INEC (2011) LPELR (8109) SC Per Ibrahim Tanko Muhammad J.S.C. (now CJN) stated:
“To consider the merit of this appeal is like beating a dead horse. It serves no useful purpose. It is an exercise in futility.
Courts of law dissipate energy on live issues. Courts of law for long have left academic issues to the academia. They rather concentrate on live issues.
I find the preliminary objection raised by the Respondents in this Appeal very sound and sustainable. I sustain them. I have no reason to go into the merit of the appeal as Courts do not make orders in vain. See Makinde V. Akinwale (1995) 6 NWLR (Pt. 399) 5; N.N.S.C. Ltd V. Sabana (1988) 2 NWLR (Pt. 74) 23. I accordingly strike out the appeal.
This affects the Cross Appeal as well. It is also struck out by me.
I make no order as to costs in the main appeal and cross appeal.”
Similarly, in the case of In Re: Apeh (2017) LPELR 42035 (SC) the Appex Court Per Ibrahim Tanko Muhammad J.S.C. (now CJN) said:
“As the said motion was not dismissed by this Court, I find myself with the submission of learned counsel for the applicants in his reply brief that the Applicants are at liberty to bring the Application over and over again. Unfortunately, the law has not set out any time limit for presentation of a process ordinarily struck out. For the purpose of a reminder, I think I should re-state the well settled principle of the law and permanent feature of the practice of the Courts that when action is struck out, it is still alive and can be resuscitated by the Plaintiff/Applicant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus, where a Suit/Case/Application/Appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally where a matter is dismissed on ground of abuse of Court process it is subject to be dismissed and it cannot be relisted.
Where a matter is withdrawn with the consent of parties, it is to be dismissed and it cannot be relisted. See Jimoh V. Starco Nig. Ltd (1998) 7 NWLR (Pt. 558) 523; Harriman V. Harriman (1989) 5 NWLR (Pt. 119) 6; Jadesimi V. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 276.
On the other hand, where a matter is simply struck out for a reason (sic) non-compliance with a provision of law, Rule and or practice; where a point of objection is raised (which point can be complied with thereafter) where a process is technically bad for a reason (which can later be rectified), the originator/initiator of that process is at liberty to Re-file that process after same has been brought in compliance with the correct position of the law, Rule or practice as may thereof be required.”
It is thus abundantly clear that the applicant herein is eminently qualified to once again seek the indulgence of this Court by filing the instant application. I have also considered the grounds of the application the affidavit in support together with the exhibits attached and I am satisfied that the Applicant is entitled to the grant of the reliefs set out on the face of the motion paper and same are granted as prayed.
It is thus hereby ordered:
1. Time is extended to today within which the applicant may seek leave to appeal against the decision in Suit No NICN/YL/03/2016 between Yusuf Moshood Ayangbade vs. United Bank for Africa Plc delivered on 6/07/2018.
2. Leave of this Court is hereby granted to the Applicant to appeal against the above-mentioned decision.
3. Time is extended by fourteen (14) days from today within which the Applicant may appeal the above decision.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the ruling delivered by my learned brother JAMILU YAMMAMA TUKUR, J.C.A. I agree with his reasoning and conclusion in granting all the prayers as contained in the motion papers filed on the 30th November, 2020.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
Chief L. D. Nzadon,Esq. with him, T. J. Jojo, Esq. For Appellant(s)
Johnson Olu Adebambo,Esq. with him, Kenneth Babuna Bathodo,Esq. For Respondent(s)